Sophie Strasburg et al vs Santa Barbara Unified School District et al

Case Number

20CV00740

Case Type

Hearing Date / Time

Fri, 01/26/2024 - 10:00

Nature of Proceedings

Motion to Compel

Tentative Ruling

For all reasons discussed herein, the motion of defendants to compel the mental examination of plaintiff is denied.

Background:

The first amended complaint (FAC) filed on February 19, 2021, by plaintiffs Sophie Strasburg (Sophie), Gidget Strasburg (Gidget), Keven Strasburg (Keven), and Summer Strasburg (Summer) (collectively, plaintiffs) is the operative pleading in this matter. (Note: Due to common familial surnames, the court will refer to plaintiffs individually by their first names to avoid confusion. No disrespect is intended.) As alleged in the FAC:

On February 22, 2019, Sophie, who was 17 years old at the time, was attending San Marcos High School (San Marcos) and was chosen to perform in a variety talent show for the school’s theater department. Under the direction of San Marcos and through Shannon Saleh (Saleh), Suzette McCormick (McCormick), and Alex Sheldon (Sheldon), Sophie was directed to wear an oversized hippopotamus costume as part of her act. (Note: Available information indicates that Sheldon was erroneously sued as “Alex Shelton”.) The costume Sophie wore was poorly maintained, too large, and created visual impairment. In addition, the lighting in the auditorium was insufficient.

During her performance, Sophie fell approximately four to five feet off an elevated stage, severely injuring her left ankle. Keven and Gidget, Sophie’s father and mother and Sophie’s younger sister Summer were in the audience and witnessed Sophie fall and injure herself. Keven, Gidget, and Summer each suffered mental anguish, emotional trauma, and distress from the event.

Sophie was taken to the emergency room where she was diagnosed with multiple fractures in her left ankle, foot, and the lower end of her left fibula. Defendants encouraged, organized, sanctioned and presented the variety show, while failing to provide a safe environment for Sophie. As a result of Sophie’s injuries, she was required to utilize a knee scooter to travel around the school.

On April 23, 2019, Sophie was on her way to the theater department as required by San Marcos when she hit a curb. Sophie was thrown from her knee scooter breaking her left elbow and suffering injuries to her face. San Marcos High failed to provide safe handicap access around the campus for Sophie and failed to properly maintain the premises, resulting in substantial injury to Sophie.

Plaintiffs allege five causes of action: (1) negligence (against San Marcos, Saleh, McCormick, Sheldon, and Santa Barbara Unified School District); (2) premises liability (against San Marcos, Saleh, McCormick, Sheldon, and Santa Barbara Unified School District); (3) negligent supervision of a minor (against San Marcos, Saleh, McCormick, Sheldon, and Santa Barbara Unified School District); (4) negligence (against San Marcos and Santa Barbara Unified School District); and (5) premises liability (against San Marcos and Santa Barbara Unified School District).

On March 18, 2021, McCormick filed an answer to the FAC generally denying its allegations and asserting twenty-five affirmative defenses. The court has no record of San Marcos, Saleh, Sheldon, or the Santa Barbara Unified School District (SBUSD) having filed a response to the FAC.

On October 19, 2023, SBUSD, Saleh, McCormick, and Sheldon (the SBUSD defendants) filed a cross-complaint against Christopher “Woody” Locke (Locke) asserting four causes of action: (1) indemnification; (2) apportionment of fault; (3) negligence; and (4) intentional tort. In the cross-complaint, the SBUSD defendants allege that Locke willfully breached his duty to use reasonable care in supervising students for the Royal Blue Variety Show at San Marcos which caused Sophie’s injuries.

The court has no record of Locke having filed a response to the cross-complaint of the SBUSD defendants.

The SBUSD defendants have filed a motion for an order compelling the mental examination of Sophie, which is to be performed by Dr. James Rosenberg on January 31, 2024 in Santa Barbara, California. The SBUSD defendants assert that good cause exists for the proposed examination because Sophie’s mental condition is in controversy, Sophie has refused to submit voluntarily to a mental examination, and the SBUSD defendants  cannot adequately and properly prepare a defense to Sophie’s claims without information relating to the nature and extent of Sophie’s injuries.

Sophie opposes the motion.

Analysis:

A party may obtain discovery by means of a mental examination of another party to an action in which the mental condition of that party is in controversy. (Code Civ. Proc., § 2032.020, subd. (a); Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887 [mental condition of party suffering ongoing mental distress as a result of the alleged conduct is “in controversy” in action seeking damages for the ongoing distress].) A mental examination of a party shall be performed “only by a licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in psychology and has had at least five years of postgraduate experience in the diagnosis of emotional and mental disorders.” (Code Civ. Proc., § 2032.020, subd. (c)(1).)

A party seeking discovery by mental examination must obtain leave of court. (Code Civ. Proc., § 2032.310, subd. (a).) The motion must “specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination[,]” and must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2032.310, subd. (b).) A court may grant a motion for a mental examination only for good cause. (Code Civ. Proc., § 2032.320, subd. (a).)

“If a party stipulates as provided in [Code of Civil Procedure section 2032.320,] subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.” (Code Civ. Proc., § 2032.320, subd. (b.).) The stipulation must include “that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed” and “that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.” (Code Civ. Proc., § 2032.320, subd. (c)(1) & (2).)

In support of the motion, the SBUSD defendants submit the declaration of their counsel, Cyrus Khosh-Chasm, who declares that Sophie alleges injuries and damages which include “[e]motional distress, [e]motional harm, [p]ain and suffering, [m]ental anguish, [e]motional trauma, [f]rustrations, [b]ottling up emotions, [] anxiousness, [] high stress levels, [] digging nails into herself, [] lower grades, [] depression, [] extreme anxiety, [] apprehension, [] panic, [] unhappiness, [] weekly crying, [] suicidal thoughts, and [] fear of not being her “old self”, and that Sophie has seen a therapist for these injuries and damages.” (Khosh-Chasm Decl., ¶ 2 & Exhs. 1 & 2.)

Counsel further declares that on June 22, 2023, he sent Sophie’s counsel a proposed stipulation to avoid the necessity of the mental examination. (Khosh-Chasm Decl., ¶ 3.) Counsel further asserts that after Sophie’s counsel failed to respond, he further communicated and asked for a response. (Ibid.) Sophie’s counsel “[f]inally” responded with a modified stipulation “without providing a list of the specific physical injuries [Sophie] will claim at trial.” (Ibid.)

Counsel for SBUSD defendants asked Sophie’s counsel for a list of the specific physical injuries Sophie will claim at trial, but counsel to date has failed to respond and provide the list of specific physical injuries, necessitating the present motion. (Khosh-Chasm Decl., ¶ 3 & Exh. 3.)

In support of her opposition to the present motion, Sophie submits the declaration of her counsel, Steven R. Andrade. Available information indicates that the parties do not dispute that counsel for the SBUSD defendants provided a proposed stipulation on June 22, 2023, for the purpose of avoiding the mental examination requested in the present motion. (See Andrade Decl., ¶ 6 & Exh. SRA-6.)

Sophie’s counsel declares that after Sophie’s deposition and in an email communication with the SBUSD defendants’ counsel on June 19, 2023, he advised that Sophie was claiming in the present action the usual mental and emotional distress associated with her physical injuries, which includes Complex Regional Pain Syndrome. (Andrade Decl., ¶ 5.) On the same date, counsel for the SBUSD defendants stated in an email communication that “if Sophie was suffering from the usual mental and emotional distress associated with her physical injuries, then a stipulation pursuant to [Code of Civil Procedure section] 2032.320[, subdivisions] (b) - (c) is appropriate.” (Andrade Decl., ¶ 6 & Exh. SRA-6.)

Counsel for Sophie further declares that the language in the proposed stipulation transmitted on June 22, 2023, by counsel for SBUSD defendants did not match statutory language. (Andrade Decl., ¶ 7.)

Sophie’s counsel further acknowledges that on June 28, 2023, counsel for SBUSD transmitted an email communication stating that if the stipulation was not agreed to, SBUSD defendants would file a motion with the court. (Andrade Decl., ¶ 8 & Exh. SRA-7.)

On June 28, 2023, counsel for Sophie prepared, signed, and submitted to counsel for SBUSD defendants a stipulation (the stipulation) in which Sophie represented that “[n]o claim is being made by Sophie for mental and emotional distress over and above that usually associated with the physical injuries claimed” and that “[n]o expert testimony regarding this usual mental and emotional distress will be presented at trial in support of [Sophie’s] claim for damages. (Andrade Decl., ¶ 9 & Exh. SRA-8.) After submitting the signed stipulation on June 28, 2023, counsel for Sophie believed the psychiatric exam issue was resolved and did not respond to SBUSD defendants’ counsel’s email dated June 28, 2023. (Andrade Decl., ¶ 10.)

Giving the statutory language contained in subdivision (c) of Code of Civil Procedure section 2032.320, a plain and commonsense meaning, there exists no express or implied language to suggest that Sophie is required to provide the SBUSD defendants with a list of her specific physical injuries in or in connection with the stipulation. (Code Civ. Proc., § 2032.320, subd. (c) [setting forth specific matters that must be included in a stipulation]; Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 190 [courts must follow the plain meaning of statutory language].) In addition, the SBUSD defendants offer no legal authority to support their contention that Sophie is required to provide a specific list of her physical injuries under circumstances present here.

Moreover, interpreting the statutory language at issue here in the manner described above, pursuant to which a party would not be required to provide a specific list of physical injuries as requested by the SBUSD defendants, does not result in absurd consequences. (See, e.g., Roberts v. Superior Court (1973) 9 Cal.3d 330, 339 [noting that any physical injury is likely to have a mental component such that discovery of privileged communications regarding a patient’s mental condition “merely upon speculation” is unwarranted].) Further, available information does not demonstrate or suggest that there exist any impediments that would prevent the SBUSD defendants from obtaining during discovery pertinent information regarding the specific physical injuries claimed by Sophie.

The SBUSD defendants raise additional concerns in their moving papers regarding whether Sophie’s allegations are over and above those usually associated with the physical injuries claimed in the present action. The SBUSD defendants may address these concerns at a procedurally appropriate time and place.

For all reasons discussed above, the court will deny the motion of the SBUSD defendants. The court’s ruling herein is without prejudice to any future procedurally appropriate noticed motion for an order compelling a mental examination of Sophie, if warranted.

Although the court would be inclined to consider imposing sanctions under Code of Civil Procedure section 2023.010, subdivision (h), Sophie has not included a request for sanctions against the SBUSD defendants or their counsel in her opposing papers. (See Code Civ. Proc., § 2023.040.)

The court has considered and will overrule Sophie’s evidentiary objections to the declaration of James E. Rosenberg, M.D.