Opinion
D059181
12-08-2011
LISA DAVIS, Petitioner, v. THE SUPERIOR COURT OF IMPERIAL COUNTY, Respondent; KIEWIT PACIFIC CO., Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Imperial County Super. Ct. No. ECU04765)
Petition for a writ of mandate, prohibition, or other appropriate relief. Donal B. Donnelly, Judge. Petition granted.
Plaintiff in this sexual harassment case has alleged that, although she suffered a good deal of emotional distress while working for defendant and during the two years following termination of her employment, she is no longer experiencing distress related to her claims against defendant. In response to discovery requests from defendant, plaintiff has further stated: she did not receive any professional help for the distress she endured; she did not experience a level of distress more significant than a normal person who had been subjected to acts of sexual harassment and loss of employment; and she would not be offering expert testimony on emotional distress at trial.
In light of the manner in which plaintiff has limited her claim for emotional distress, defendant has no right to subject her to an independent mental examination. Plaintiff has not directly or indirectly placed in issue her current psychological condition and will not attempt to support her claim for past distress with evidence of past professional treatment or expert opinion. Thus, plaintiff has not in any manner waived the right to privacy implicated in an independent mental examination.
Accordingly, the trial court abused its discretion in granting defendant's motion for an independent mental examination and we grant plaintiff's petition.
FACTUAL AND PROCEDURAL BACKGROUND
From June 2007 until March 2008, plaintiff and petitioner Lisa Davis worked for defendant and real party in interest Kiewit Pacific Co. (Kiewit) as a heavy equipment operator on its project lining the All-American Canal. According to Davis, while working on the lining project she was sexually harassed by a co-worker and had difficulty obtaining access to a sanitary portable toilet. After Davis expressed concern about the condition and location of the toilet, she found feces smeared on the seat of the portable toilet designated for women and a pornographic magazine in the toilet which depicted obese women engaged in sex acts.
According to her complaint, in March 2008 Davis complained about the portable toilet and other issues to Kiewit management officials located offsite. At the same time she made a complaint to the Department of Industrial Relations Division of Occupational Safety and Health (Cal-OSHA). A few days after she made these complaints, Kiewit terminated her employment.
On October 16, 2008, Davis filed a complaint against Kiewit in which she alleged claims for gender discrimination, harassment, retaliation, failure to prevent discrimination and failure to pay wages. Her original complaint alleged that she suffered and was continuing to suffer fear, anxiety, humiliation, frustration and other emotional distress.
Davis was deposed on August 4, 2009, and she testified her emotional distress got better after she got away from the stress of her job. In responses to interrogatories which she served in September 2009, Davis stated that her ongoing emotional distress was subsiding and that she had not seen any doctors or received any professional treatment for the distress.
In October 2010 Kiewit asked Davis if she would voluntarily submit to an independent mental examination. Davis declined Kiewit's request and stated she would not be offering any expert testimony regarding her emotional distress. Kiewit then filed a motion for leave to conduct a psychological examination of Davis.
In response to Kiewit's motion, Davis served on Kiewit an amended complaint and a supplemental interrogatory request in which she stated the emotional distress caused by Kiewit had resolved and she had experienced no emotional distress related to her employment at Kiewit since June 2010.
The trial court granted Kiewit's motion on February 3, 2011. Shortly thereafter it granted Davis's request for leave to file her amended complaint.
Davis filed a petition for a writ of mandate in this court on February 18, 2011. We issued an order to show cause and stayed the trial court's order permitting Kiewit to conduct an independent psychological examination of Davis.
DISCUSSION
I
Because Davis's constitutionally protected right to privacy is at stake here and she has no other adequate remedy, writ review of the trial court's order is appropriate. (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1882 (Doyle).) As is the case for discovery orders in general, we review the trial court's order for abuse of discretion. (See John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.)
II
Code of Civil Procedure section 2032.020, subdivision (a) states: "(a) Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action." (Italics added.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
In Vinson v. Superior Court (1987) 43 Cal.3d 833 (Vinson), which also was a sexual harassment and wrongful termination case, the court interpreted the statutory predecessor to the current version of section 2032.020, subdivision (a). In permitting a mental examination in that case the court stated: "We emphasize that our conclusion is based solely on the allegations of emotional and mental damages in this case. A simple sexual harassment claim asking compensation for having to endure an oppressive work environment or for wages lost following an unjust dismissal would not normally create a controversy regarding the plaintiff's mental state. To hold otherwise would mean that every person who brings such a suit implicitly asserts he or she is mentally unstable, obviously an untenable proposition.." (Id. at p. 840.)
The court in Vinson then described the particulars in the record which gave the defendant's request merit: "Plaintiff in the case at bar asserts that she continues to suffer diminished self-esteem, reduced motivation, sleeplessness, loss of appetite, fear, lessened ability to help others, loss of social contacts, anxiety, mental anguish, loss of reputation, and severe emotional distress. In their motion, defendants pointed to these allegations. Because the truth of these claims is relevant to plaintiff's cause of action and justifying facts have been shown with specificity, good cause as to these assertions has been demonstrated. Subject to limitations necessitated by plaintiff's right to privacy, defendants must be allowed to investigate the continued existence and severity of plaintiff's alleged damages." (Vinson, supra, 43 Cal.3d at p. 840, italics added.)
In Doyle, the court, relying on the reasoning in Vinson, found that a trial court had abused its discretion in requiring the plaintiff in another sexual harassment case to submit to a mental examination. By way of an amended cross-complaint, which the plaintiff served after she filed her sexual harassment cross-complaint, the plaintiff in Doyle limited her claim for emotional distress damages to a period which ended some months after defendant's employment had been terminated. The plaintiff in Doyle further stated that she was only seeking "garden-variety" emotional distress damages. In finding a mental examination was not warranted on that record, the court in Doyle distinguished Vinson: "[T]he allegation in Vinson was that the plaintiff was currently suffering mental distress. The mental condition of a person who is suffering ongoing mental distress is clearly 'in controversy' in an action seeking damages for that ongoing mental distress. The 'controversy' surrounding such a person's mental condition includes not only the nature and extent of the person's current mental injury but also the actual cause of this injury. In contrast, where a plaintiff alleges that she is not suffering any current mental injury but only that she has suffered emotional distress in the past arising from the defendant's misconduct, a mental examination is unnecessary because such an allegation alone does not place the nature and cause of the plaintiff's current mental condition 'in controversy.' " (Doyle, supra, 50 Cal.App.4th at p. 1887.)
III
Here, Davis does not contend she is suffering from any continuing emotional distress related to her employment with Kiewit. We also note Davis will not prove the existence of her prior emotional distress with any expert evidence, but instead apparently intends to rely solely on her description of events while working at Kiewit and its impact on her. Moreover, there is nothing in the record to suggest Davis will attempt to show she was either unusually vulnerable to the conduct she alleges she endured or suffered an unusual reaction to that conduct.
Given these circumstances there is no basis upon which we can conclude Davis's mental state was in controversy within the meaning of section 2032.020, subdivision (a). Because Davis's current mental state is not in controversy, arguably, under Doyle ,that fact alone prevents Kiewit from compelling a mental examination. (Doyle, supra, 50 Cal.App.4th at p. 1887.)
However, even if were inclined to depart from Doyle and permit a mental examination when a litigant is no longer suffering emotional distress, such a departure would at the very least require some showing that the intrusion into Davis's privacy was needed to permit Kiewit to fairly dispute her claims. Where, as here, a litigant will not be using expert evidence to support her emotional distress claim and she does not contend that her injury was in any manner unusual, Kiewit cannot meet that burden. As the court in Vinson warned, on a record such as this, where a sexual harassment claimant has only made a general claim of emotional distress, a defendant may not compel a mental examination on the basis that "something of interest may surface." (Vinson, supra, 43 Cal.3d at p. 840.) Accordingly, we grant the petition.
DISPOSITION
Let a writ of mandate issue directing the trial court to vacate its order granting Kiewit's motion to conduct an independent psychological evaluation of Davis and enter an order denying the motion. The stay issued by this court on March 11, 2011, is vacated. Petitioner to recover her costs.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
NARES, J.