The opinion
Filed 4/26/23; Certified for Publication 5/18/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
RANDY’S TRUCKING, INC., et al.,
F084849
Petitioners,
(Super. Ct. No. BCV-20-100982)
v.
THE SUPERIOR COURT OF KERN OPINION
COUNTY,
Respondent;
ANGELA BUTTRAM et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Bernard C. Barmann,
Judge.
Haight Brown & Bonesteel LLP, Arezoo Jamshidi, Kaitlyn A. Jensen, Krsto
Mijanovic, Elizabeth Rhodes, and Steven Scordalakis for Petitioner.
Artiano Shinoff and Paul V. Carelli IV for Amici Curiae American Academy of
Clinical Neuropsychology and Inter Organizational Practice Committee on behalf of
Petitioners.
Law Offices of Ryan Connolly and Ryan Connolly for Amicus Curiae Manson
Western, Inc., on behalf of Petitioners.
Carlton Fields, LLP and Stephanie G. Chau for Amicus Curiae Psychological
Assessment Resources, Inc., on behalf of Petitioners.
No appearance for Respondent.
Vaziri Law Group, Siamak Vaziri, David Shay, and Mark J. Nagle for Real Parties
in Interest.
-ooOoo-
This lawsuit arises from a motor vehicle accident which Angela Buttram alleges
occurred when a tractor-trailer rear-ended the school bus she was driving. Buttram and
Devon Robbins, a passenger on the school bus (collectively, plaintiffs), sued Blaine
Fields, the tractor-trailer driver, and his employer, Randy’s Trucking, Inc. (collectively,
defendants), alleging personal injuries and emotional distress from the accident.
During discovery, Buttram claimed she suffered a severe traumatic brain injury
due to the accident, and her associated symptoms prevented her from returning to work.
Consequently, defendants filed a motion for an order compelling Buttram to undergo a
mental examination by their neuropsychologist after plaintiffs refused to allow the
examination to proceed unless their attorney received all raw data and test information
from the examination. Defendants asked the trial court to prohibit the provision of raw
test data, test materials, copyrighted publications, or documents containing proprietary
information to anyone other than a licensed psychologist or neuropsychologist. While
the trial court granted the motion to compel the examination, it denied defendants’
request to limit transmission of the test data and materials to a licensed psychologist or
neuropsychologist; instead, the court ordered defendants’ neuropsychologist to transfer
raw data and an audio recording of the examination to plaintiffs’ attorney subject to a
protective order (the transmission order).
2.
Defendants’ chosen neuropsychologist recused herself, stating she could not
comply with the transmission order because doing so would compromise the security of
the tests and cause her to violate her professional and ethical duties. After defendants
contacted two other neuropsychologists who stated they also could not comply with the
transmission order, defendants moved for reconsideration of the transmission order. The
trial court denied the motion.
Defendants filed a petition for writ of mandate in this court to challenge the
transmission order and the denial of their motion for reconsideration, arguing the trial
court abused its discretion. Defendants ask us to direct the trial court to either modify the
transmission order to require the transmission of the raw data and audio recording to
plaintiffs’ retained psychologist or neuropsychologist rather than plaintiffs’ attorney, or
vacate the order denying the motion for reconsideration and enter a new order granting
the motion.
We issued an order to show cause and stayed further proceedings in the trial court
pending this decision. Plaintiffs filed a return and demurrer to the petition, and
defendants filed a reply. Amicus curiae briefs were also filed in support of plaintiffs
from two professional organizations—the American Academy of Clinical
Neuropsychology (AACN) and the Inter Organizational Practice Committee (IOPC)—
and two publishers of psychological tests—Manson Western, Inc., and Psychological
Assessment Resources, Inc. (PAR). Finding no abuse of discretion, we deny writ relief.
FACTUAL AND PROCEDURAL BACKGROUND
Based on Buttram’s claim that she suffered a traumatic brain injury, defendants
sought to have Buttram submit to a mental examination by a neuropsychologist of their
choosing, Tara Victor, Ph.D. The parties, however, could not agree on the ground rules
for Dr. Victor’s examination. Plaintiffs’ counsel refused to stipulate to the examination
unless the examining neuropsychologist provided them with all testing materials, raw test
data, and an audio recording of the examination. Defendants, however, maintained
3.
Dr. Victor was unwilling to transfer those items to plaintiffs’ counsel, although she would
provide them to a similarly situated expert who was subject to the same professional and
ethical duties to which she was subject.
The Motion for a Neuropsychological Exam
Defendants moved for an order granting leave to conduct a neuropsychological
examination of Buttram pursuant to Code of Civil Procedure section 2032.310,1 without
having to provide raw data and copyrighted examination questions to plaintiffs’ counsel.
Defendants asserted requiring such a disclosure would cause Dr. Victor to violate her
ethical and professional duties as a licensed neuropsychologist, and the raw data and
examination questions were of no use to plaintiffs’ counsel “other than to utilize it
improperly to corrupt the process by preparing future clients using the copyrighted
questions.” Defendants asked the court to order the transfer of data to plaintiffs’ retained
neuropsychologist, “whoever that is,” as plaintiffs needed such an expert to prove
Buttram’s claim.
In Dr. Victor’s declaration accompanying the motion, Dr. Victor explained the
parameters of the examination and listed the tests she may administer. As pertinent here,
Dr. Victor stated “[n]o raw test data, test materials, copyrighted publications, or
documents containing proprietary information will be provided to anyone who is not a
licensed psychologist,” and she would only provide those items to “opposing counsel’s
retained licensed psychologist expert.” Dr. Victor would agree to audio recording of the
clinical interview under specified conditions, which included sending a copy of the
recording only to the plaintiffs’ retained licensed psychology expert.
Dr. Victor stated she would not permit third party observation (TPO) while
administering neuropsychological and psychological tests. She explained why she was
concerned about TPO, which included: (1) public exposure of test materials
1 Undesignated statutory references are to the Code of Civil Procedure.
4.
compromises the validity of future neuropsychological test results, as examinees must be
naïve to general test demands and test content; (2) “TPO leads to potential misuse and
misinterpretation of tests by untrained TPOs” who do not have a compelling interest in
protecting copyrighted test content, whereas psychologists “are ethically bound to protect
the security and integrity of test materials and are appropriately trained in administration
and interpretation of complex results”; and (3) “TPO increases the likelihood that test
content and instructions will be disseminated, which in turn raises the risk that motivated
parties will coach and prepare examinees for testing in advance, specifically to influence
test results.” Dr. Victor asserted the presence of a TPO could conflict with numerous
ethical standards set forth in the American Psychological Association (APA)’s “Ethical
Principles of Psychologists and Code of Conduct” (APA Ethical Standards), as well as
with “several key principles” in the APA’s “Specialty Guidelines for Forensic
Psychology.”
In opposing the motion, plaintiffs asserted they only were seeking to have the raw
data from the examination provided to their counsel in addition to plaintiffs’ expert.
Plaintiffs’ counsel offered to sign a protective order making the data available for use
only in this case and only for review by counsel’s team and experts, with the data to be
destroyed at the conclusion of the case, which would be in addition to counsel’s duty of
confidentiality to Buttram. Plaintiffs asserted Carpenter v. Superior Court (2006)
141 Cal.App.4th 249 (Carpenter) supported providing such materials to counsel subject
to a protective order. Plaintiffs also asserted they had a right to an audio recording of the
full examination, including cognitive testing, as they had “a right to ensure that the
examiner does not overstep his bounds during the examination, and since Plaintiff’s
counsel cannot be present for it, a full audio recording in addition to the other listed
safeguards, is the only way to protect that right.”
Plaintiffs pointed out Standard 9.04 of the APA Ethical Standards provides that a
patient may authorize the release of raw test data to the patient or other persons identified
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in the release, and Standard 9.11 of the APA Ethical Standards “only requires that
psychologists make ‘reasonable efforts to maintain the integrity and security of test
materials and other assessment techniques consistent with law and contractual
obligations.’ ” Plaintiffs claimed the proposal to release the materials to their counsel
subject to a protective order regarding use of the materials satisfied Standard 9.11, as
plaintiffs’ counsel has an ethical obligation not to disclose a client’s medically private
information, and the protective order would limit the use of the materials to this case and
guarantee their destruction at the end of the required retention period. Plaintiffs
argued with the protective order in place, California Code of Regulations, title 16,
section 1396.32 supports a ruling that the raw data and test recordings may be released to
Buttram and her counsel, as plaintiffs’ counsel are “ ‘persons with interests who will
safeguard their use.’ ”
In reply, defendants argued plaintiffs did not show good cause to require
Dr. Victor to transfer her raw data and testing materials to plaintiffs’ counsel rather than
plaintiffs’ parallel expert. Defendants asserted Carpenter does not hold plaintiffs are
entitled to compel transfer of privileged data and testing materials to plaintiffs’ counsel
without good cause. Defendants contended ordering the transfer of raw data to plaintiffs’
counsel would violate Dr. Victor’s duties under regulation 1396.3 and California Code of
Regulations, title 16, section 1881(l),3 and plaintiffs had not shown why Dr. Victor
2 California Code of Regulations, title 16, section 1396.3 provides: “A psychologist
shall not reproduce or describe in public or in publications subject to general public
distribution any psychological tests or other assessment devices, the value of which
depends in whole or in part on the naivete of the subject, in ways that might invalidate the
techniques; and shall limit access to such tests or devices to persons with professional
interests who will safeguard their use.” Section 1396.3, which is part of the Psychology
Regulations (Cal. Code Regs., tit. 16, § 1380, et seq.), is hereafter referred to as
regulation 1396.3.
3 California Code of Regulations, title 16, section 1881 lists conduct that
constitutes unprofessional conduct for licensed clinical social workers as used in
Business and Professions Code section 4992.3. California Code of Regulations, title 16,
6.
should be required to violate her professional and legal duties, particularly where
defendants have offered to transfer the privileged data to plaintiffs’ expert.
After hearing oral argument on defendants’ motion,4 the trial court issued a
written order granting the motion. The order authorized Dr. Victor to perform a
neuropsychological examination of Buttram and set the parameters for the examination.
As pertinent here, the order prohibited any videotaping or TPO of the examination but
ordered Dr. Victor or a technician from her office (who would not be present during the
examination) to audio record the examination. The transmission order required the audio
recording, a copy of Dr. Victor’s report, and “all raw data” be provided to Buttram’s
counsel within 30 days of the examination, which was subject to a protective order.
The protective order provided: “Plaintiff’s counsel, defense counsel and all
experts, consultants and employees of the respective firms shall maintain the security of
all raw data, test materials and other medically private information obtained during the
examination. However, such raw data, test materials and other medically private
information may be disclosed to plaintiff’s counsel, defense counsel and all experts,
consultants and employees of the respective firms for use in this case. Such materials and
data may also be shown to the trier of fact at the time of trial, or such other time as may
be necessary for the adjudication of the above-captioned matter. These materials may be
section 1881(l) provides that unprofessional conduct includes: “Reproduces or describes
in public or in publications subject to general public distribution, any psychological test
or other assessment device, the value of which depends in whole or in part on the naivete
of the subject, in ways that might invalidate such test or device. The licensee shall limit
access to such test or device to persons with professional interest who are expected to
safeguard their use.” Section 1881(l) of title 16 of the California Code of Regulations is
hereafter referred to as regulation 1881(l).
4 Defendants submitted their attorney’s declaration with the petition in which she
stated the hearing was not reported because a court reporter was not present due to a
misunderstanding by her office. Pursuant to California Rules of Court, rule
8.486(b)(3)(A), defendants’ attorney provided a summary of the hearing to the best of her
recollection.
7.
used for no other purpose, may not be disseminated to any other party and the parties
shall take all reasonable steps to maintain the confidentiality of the above-identified
materials.” The order further required the parties to “destroy the above-identified
materials at the cessation of this case, in accordance with the provisions of the California
Rules of Professional Conduct.”
The Motion for Reconsideration
After reviewing the transmission order’s requirements for transferring raw data
and an audio recording of the formal testing portion of the exam to plaintiffs’ counsel and
others not licensed in the field of psychology, Dr. Victor recused herself from the case,
telling defendants’ counsel that she had “considered all possible alternatives” but given
the order’s requirements, there was “no way for [her] to proceed with the examination
while remaining within the ethical bounds of [her] profession.”
Defendants’ counsel subsequently contacted two neuropsychologists about the
order. Kyle Boone, Ph.D., told counsel she “could not and would not comply with the
Order as it required her to violate the legal, ethical and professional obligations of her
license as a psychologist.” Lori Holt, Ph.D., who worked with another licensed
neuropsychologist, Jeffrey Schaeffer, Ph.D., told counsel that “no licensed
neuropsychologist could comply with the Order as written.”
Defendants moved for reconsideration of the transmission order. Defendants
asked the trial court to amend the order to require transfer of “all testing materials, raw
data, and the audio recording of the testing portion” of Buttram’s examination to any
licensed neuropsychological expert plaintiffs’ counsel may retain. Defendants asserted as
new facts and circumstances that Dr. Victor had recused herself from the case, and
neither Dr. Victor nor any licensed examiner in the field of neuropsychology could
comply with the order as written, which left defendants without the means to defend
Buttram’s claim she suffered a severe traumatic brain injury.
8.
Defendants asked the trial court to take judicial notice of a January 2022 position
paper from the AACN pertaining to test security. Defendants asserted the AACN
position paper discussed the potential consequences if testing materials become publicly
available, such as test takers attempting to sway test results to obtain a certain outcome,
and AACN’s concern that if examinees in civil and criminal litigation become aware of
psychometric procedures used to determine symptom severity and validity, they could
adjust their test performances to reflect more severe psychological and cognitive
function.
Defendants asserted no psychologist would agree to perform a mental exam if they
must break their contractual obligation with test vendors to maintain the confidentiality of
test materials and violate the “clear ethical standards they are required to comply with in
their medical fields.” Defendants claimed they did not have any expert or potential
expert who would comply with the order. Defendants’ counsel related her conversations
with Drs. Boone and Holt in a declaration, and asserted she knew Dr. Schaeffer’s office
uses a specific set of requirements that state no testing materials, raw data, or audio
recording of the testing period of a neuropsychological examination may be transferred to
anyone other than a similarly licensed psychologist on the opposing side when an exam is
given for litigation purposes.
Plaintiffs opposed the motion for reconsideration, arguing it did not present new
facts or new law. Plaintiffs asserted the factual grounds for the motion—that Dr. Victor
recused herself and another expert could not be found after a few phone calls—were not
new, as defendants claimed Dr. Victor would not comply with the order when bringing
the original motion. Plaintiffs further asserted it was not accurate that defendants could
not retain a neuropsychologist, claiming nearly every judge in the Kern County civil
9.
bench had issued “[n]early identical orders” that had been complied with, three of which
were attached to plaintiff’s counsel’s declaration.5
In reply, defendants asserted they were moving for reconsideration based on new
facts and circumstances that arose after the court issued its order—that the defense lost its
expert due to the order and was unable to locate an expert who would comply with the
order. Defendants asserted if the court did not modify the transmission order, access to
testing materials would permit plaintiffs’ counsel to coach Buttram and attempt to destroy
the validity of the test and force any expert plaintiffs may retain to violate his or her
ethical and legal duties as a neuropsychologist or psychologist.
Defendants also asserted the court orders from other cases that plaintiffs provided
with their opposition were not what they seemed. Defendants provided declarations from
two neuropsychologists who were ordered to disclose testing data and materials to the
plaintiff’s attorneys in the earlier cases, Jeffrey M. Lulow, Ph.D.,6 and Howard J.
Friedman, Ph.D. Both doctors declared that they felt they had no choice but to comply
with the court’s orders, but they “did so under duress, as [they were] being forced and
[were] forced to violate [their] ethical and legal obligations not to disclose secured testing
5 The orders were issued by three different judges on the Kern County Superior
Court. In ordering mental health examinations, two orders required “raw data” be
provided to the plaintiffs’ attorneys, while the third required the transmission of “raw test
data, including test pages, and test results” to the plaintiffs’ attorneys. Two of the orders
allowed audio recording of the examination, which was to be provided to the plaintiffs’
attorneys, and contained protective orders that mirror the one at issue here. The
neuropsychologists subject to the orders were Drs. Philip Stenquist, Jeffrey M. Lulow,
and Howard J. Friedman.
6 In a January 2017 declaration filed in the earlier case, Dr. Ludlow stated the
plaintiff’s attorney wanted raw data from his examination of the plaintiff; he told the
attorney he would provide a report after the examination that would either list test scores
or describe the plaintiff’s responses; and in an effort to adhere to his ethical and legal
obligations, he offered to either provide the materials to the plaintiff’s expert
neuropsychologist or have plaintiff’s counsel sign a statement, which he had used for
20 years, that counsel would maintain test security.
10.
materials, and raw data, and recordings of the administrations of those tests, to a non-
licensed, non-professional,” namely, the plaintiff’s attorneys. Dr. Lulow stated he
eventually agreed to provide the protected materials to the plaintiff’s attorney with the
understanding the attorney would transmit the materials to the plaintiff’s retained
neuropsychologist, Jeffrey Schaeffer, Ph.D., because the court ordered him to do so. Both
doctors emphasized they complied with the court order because they believed they had no
choice, but they strongly objected and continued “to object to the forced violation of
[their] ethical and legal duties” as neuropsychologists.
At oral argument on the motion for reconsideration, the trial court first announced
its tentative ruling. As applicable here, the trial court noted defendants identified three
things as new or different facts, circumstances, or law: (1) Dr. Victor’s withdrawal
because she could not comply with the court’s order; (2) the two other doctors they
contacted who could not comply; and (3) some case law cited in the motion. The trial
court found the case law was not new, but with respect to Dr. Victor and the others not
being able to comply with the examination order, the trial court stated AACN’s official
position paper on test security suggested that when faced with a judicial order, the
practitioner “can choose to withdraw from the case and can also opt to document through
canvassing of other local neuropsychologists that the broader neuropsychology
community refuses to conduct exams under invasive parameters that threaten the validity
of the assessment process.” The trial court noted defendants only pointed to two
additional experts who refused to do the examination under the existing order which, in
its view, was “hardly a canvas and so the court, at this point, is inclined to deny this
motion.” After considering the arguments of counsel, the trial court was satisfied the
tentative ruling was correct and denied the motion, adding that it was not inclined to issue
advisory rulings on any future orders it might make.
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DISCUSSION
I. Scope of Relief in Mandate and Standard of Review
A writ of mandate may be issued to compel an inferior court to perform an act
“which the law specifically enjoins, as a duty resulting from an office, trust, or
station….” (§ 1085, subd. (a).) “Generally, a writ [of mandate] will lie when there is no
plain, speedy, and adequate alternative remedy; the respondent has a duty to perform; and
the petitioner has a clear and beneficial right to performance.” (Payne v. Superior Court
(1976) 17 Cal.3d 908, 925.) “ ‘Although mandamus does not generally lie to control the
exercise of judicial discretion, the writ will issue “where, under the facts, that discretion
can be exercised in only one way.” ’ ” (Diaz-Barba v. Superior Court (2015)
236 Cal.App.4th 1470, 1483, citing Robbins v. Superior Court (1985) 38 Cal.3d 199,
205.)
Writ review of discovery rulings is generally disfavored. (O'Grady v. Superior
Court (2006) 139 Cal.App.4th 1423, 1439.) “Interlocutory writ review of discovery
rulings [by extraordinary writ proceedings] is ordinarily limited to situations involving
(1) an issue of first impression that is of general importance to the legal profession,
(2) an order denying discovery that effectively precludes a litigant from having a fair
opportunity to litigate his or her case, or (3) a ruling compelling discovery that violates a
privilege.” (City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1031.)
“ ‘The standard of review generally applicable to review of discovery orders is
abuse of discretion, as management of discovery lies within the sound discretion of the
trial court. [Citations.]’ [Citation.] ‘In particular, the abuse of discretion standard of
review ordinarily applies to review of an order on a motion to compel discovery
[citation].’ ” (Haniff v. Superior Court (2017) 9 Cal.App.5th 191, 198.) “We apply the
independent standard of review to the purely legal question of statutory interpretation.
[Citation.] Thus, ‘where the propriety of a discovery order turns on statutory
interpretation, an appellate court may determine the issue de novo as a question of law.’ ”
12.
(Manuel v. Superior Court (2022) 82 Cal.App.5th 719, 727.) We also review a trial
court’s ruling on a motion for reconsideration for abuse of discretion. (Glade v. Glade
(1995) 38 Cal.App.4th 1441, 1457.)
“[I]t is generally accepted that the appropriate test of abuse of discretion is
whether or not the trial court exceeded the bounds of reason, all of the circumstances
before it being considered.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 987.)
“However, ‘all exercises of legal discretion must be grounded in reasoned judgment and
guided by legal principles and policies appropriate to the particular matter at issue.’ ”
(F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) “Therefore, a discretionary decision may be
reversed if improper criteria were applied or incorrect legal assumptions were made.”
(Ibid.)
II. The Motion for a Mental Examination
In moving for a neuropsychological examination of Buttram, defendants asked the
trial court to order Dr. Victor to transfer the testing information to plaintiffs’ expert rather
than plaintiffs’ counsel. The trial court denied that request and instead ordered Dr. Victor
to provide an unedited and unaltered audio recording of the examination and “all raw
data” to plaintiffs’ counsel within 30 days after the examination subject to a protective
order. The protective order allows disclosure of “raw data, test materials and other
medically private information obtained during the examination” to plaintiffs’ counsel,
defendants’ counsel, and “all experts, consultants and employees of the respective firms
for use in this case,” and further allows these materials and data to be shown to the trier
of fact at trial or when necessary for adjudication of the case. The protective order
requires plaintiffs’ and defendants’ counsel, as well as all experts, consultants, and
employees of their firms, to maintain the security of the materials and data and “take all
reasonable steps to maintain the confidentiality” of the described materials, which must
be “used for no other purpose” and must not be disseminated to any other party. Finally,
13.
the protective order requires the parties to destroy the materials at the cessation of the
case in accordance with the California Rules of Professional Conduct.
Defendants argue: (1) the trial court erred in ordering the examining
neuropsychologist to transfer the raw data and audio recording to anyone but another
licensed psychologist or neuropsychologist because the statute governing mental
examinations does not authorize the examinee to request such materials from the
examining party; and (2) even if the trial court has discretion to order the transfer of such
materials to plaintiffs’ attorney and provide access to other nonexperts, the trial court
abused its discretion in so ordering.7
A. The Authority to Order Disclosure of Test Materials and Data
A defendant generally may obtain a mental examination of a plaintiff if the
plaintiff has placed his or her mental condition in controversy. (§ 2032.020, subd. (a).)
To obtain discovery by a mental examination, the defendant must seek leave of court,
with the motion specifying “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.” (§ 2032.310, subds. (a) & (b).)
The court may order the mental examination only on a showing of good cause.
(§ 2032.320, subd. (a).) Its order granting the examination must specify certain details of
the examination, including “the person or persons who may perform the examination, as
well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and
nature of the examination.” (Id., subd. (d).) Both the examiner and examinee “have the
right to record a mental examination by audio technology.” (§ 2032.530.) If a party
7 Defendants assert the trial court ordered the transmission of “all testing materials,
raw test data and a full audio recording of the examination” to plaintiffs’ attorney. The
trial court’s transmission order, however, only provides for the transmission of “all raw
data” and an audio recording of the examination. While the transmission order does not
state that the testing materials must be transmitted, an audio recording would record
verbally given test materials and data.
14.
submits to a mental examination, “that party has the option of making a written demand
that the party” seeking the examination deliver to the demanding party “[a] copy of a
detailed written report setting out the history, examinations, findings, including the
results of all tests made, diagnoses, prognoses, and conclusions of the examiner.”
(§ 2032.610, subd. (a)(1).)8 If the option is exercised, a copy of the requested reports
must “be delivered within 30 days after service of the demand, or within 15 days of trial,
whichever is earlier.” (Id., subd. (b).)
Defendants contend the trial court erred in ordering transmission of the raw data
and audio recording to plaintiffs’ counsel because those items are not among the
materials listed under the demand provided in section 2032.610, subdivision (a).
Defendants contend that because testing materials, raw test data, and an audio recording
of the examination are not listed in the statute, plaintiffs could not demand the production
of those items and the trial court could not order them transmitted to plaintiffs’ attorney.
There is no statutory authority, however, precluding a trial court from ordering the
disclosure of test materials or test data when ordering a mental examination. (Carpenter,
supra, 141 Cal.App.4th at p. 271.) In Carpenter, the trial court granted the defendant’s
motion to compel the plaintiff’s mental examination and ordered that the plaintiff could
audiotape the examination and read the written questions onto the tape but refused to
order production of the written test questions due to copyright law. (Ibid.) In his petition
for writ review, the plaintiff maintained he was entitled to copies of the written test
materials and his answers because the statute governing mental examinations allows an
8 Section 2032.610 provides, in pertinent part: “If a party submits to … [a] mental
examination in compliance with … an order of court under Article 3 (commencing with
Section 2032.310), … that party has the option of making a written demand that the party
at whose instance the examination was made deliver both of the following to the
demanding party: [¶] (1) A copy of a detailed written report setting out the history,
examinations, findings, including the results of all tests made, diagnoses, prognoses, and
conclusions of the examiner. [¶] (2) A copy of reports of all earlier examinations of the
same condition of the examinee made by that or any other examiner.”
15.
audio recording. (Ibid.) The appellate court rejected that argument, explaining: “The
fact that section 2032.530 permits the mental examination to be audiotaped, however,
does not provide statutory authority for compelling the examiner to provide a copy of the
written test questions and answers.” (Ibid.)
The appellate court nevertheless recognized that “[w]hile there is no express
statutory authority” for the plaintiff’s position, “neither is there statutory authority
precluding a trial court, in its discretion, from ordering the disclosure of the written test
questions and answers.” (Carpenter, supra, 141 Cal.App.4th at p. 271, citing Golfland
Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 747
(Golfland).) The plaintiff argued the discretion to disclose the materials should be
exercised because he could not meaningfully exercise his rights to take discovery of and
cross-examine the defendant’s expert witnesses without the test questions and answers on
which the experts’ opinions are based, citing section 2034.410 and Evidence Code
section 721, subdivision (a). (Carpenter, at pp. 271‒272.) The plaintiff further argued
the disclosure of these materials would protect against abuse and subsequent disputes
over what occurred. (Id. at p. 272.)
The appellate court recognized resolution of this issue was within the trial court’s
discretion, but the trial court’s decision to deny access to the written test questions was
based on an erroneous conclusion regarding copyright law. (Carpenter, supra,
141 Cal.App.4th at p. 272.) The appellate court found the evidence before the trial court
was insufficient to support the finding that providing a copy of the tests would be a
copyright infringement, as the evidence did not indicate which test the examiner would
use, the terms by which the examiner came into possession of the tests, or any limitations
on their disclosure. (Id. at p. 273.) Moreover, “[e]ven if it could be presumed that all
‘written standardized tests’ evaluating emotional and cognitive functioning were subject
to copyright protection, it was not established that providing a copy of the test questions,
16.
after an examination and by court order, would violate copyright law in every instance.”
(Ibid.)9
The defendant also claimed disclosure of the test questions and the plaintiff’s
answers would violate the examiner’s ethical and professional obligations, referring to
the APA Ethical Standards. (Carpenter, supra, 141 Cal.App.4th at pp. 274‒275.) The
appellate court declined to decide this issue, however, as the material had not been
presented to the trial court and since it was “remanding the matter for the trial court to
decide the issue anew, the court may consider at that time the parties’ arguments
regarding the examiner’s ethical and professional obligations.” (Id. at p. 275.)
While Carpenter did not decide whether the examiner’s ethical and professional
obligations precluded disclosing the test questions and the examinee’s answers to the
examinee, the appellate court recognized the trial court has discretion to order the
disclosure of such materials even if no statute authorizes it. (Carpenter, supra,
141 Cal.App.4th at p. 271.) While the Carpenter court did not specifically analyze
section 2032.610 in making its observation, given the trial court’s broad discretion in
discovery matters, the trial court nevertheless has the power to order disclosure of test
materials and data to plaintiff’s attorney. (See Vinson v. Superior Court (1987) 43 Cal.3d
833, 846 [trial courts, which have “broad discretion in discovery matters,” retain the
power to take prophylactic measures].)
9 For the benefit of the trial court and parties on remand, the appellate court
considered material the defendant presented on the writ that were from two copyright
holders concerning certain standardized psychological tests. (Carpenter, supra,
141 Cal.App.4th at p. 273.) The appellate court noted in those materials, both copyright
holders suggested a satisfactory way to provide the tests after the mental examination—
the test questions and answers could be given to plaintiff’s counsel or a designated
psychologist, “subject to a protective order strictly limiting the use and further disclosure
of the material, and providing for other safeguards against access that would compromise
the integrity and validity of the tests.” (Id. at p. 274.)
17.
Defendants assert Roe v. Superior Court (2015) 243 Cal.App.4th 138 (Roe) is
instructive on this issue. There, in opposition to a motion to compel the mental
examination of the minor plaintiff, the plaintiffs sought to compel the defendants to
produce copies of the written test questions and the minor’s responses. (Id. at p. 146.)
While the trial court ordered the examiners to provide the reports statutorily required by
section 2032.610, it specified the plaintiffs were not entitled to the written testing
materials and the minor’s answers without further court order. (Roe, at p. 147.)
On writ review, the plaintiffs sought to compel the defendants to deliver the
written tests and test answers. The appellate court rejected the plaintiffs’ argument that
section 2032.610, subdivision (a)(1), requires the production of the test materials by
analogy to a criminal discovery statute, Penal Code section 1054.3, subdivision (a)(1),
since the plaintiffs did not show the Legislature’s intent and purpose regarding
section 2032.610, subdivision (a)(1) supported their argument. (Roe, supra,
243 Cal.App.4th at pp. 147‒148.) The appellate court stated that while the plaintiffs
also argued “section 2032.610’s phrase ‘results of all tests made’ constitutes ‘plain
language’ ” requiring the minor’s answers be provided to him, they did not offer any
support for the assertion.10 (Roe, supra, 243 Cal.App.4th at p. 148.)
The appellate court concluded that because the plaintiffs’ “undeveloped analyses
fail[ed] to establish that section 2032.610 requires [the] defendants to deliver the written
testing materials and [the minor]’s raw answers to [the] plaintiffs,” the plaintiffs did not
demonstrate “the [trial] court was under a legal duty to order, or that its discretion could
be legally exercised only by ordering, such delivery.” (Roe, supra, 243 Cal.App.4th at
p. 149.) The appellate court further concluded the plaintiffs had not demonstrated there
10 The appellate court noted the statute’s plain language did not “resolve whether test
‘results’ encompasses the examinee’s raw responses,” as “[t]he word ‘result’ generally
refers to the consequence or outcome of something.” (Roe, supra, 243 Cal.App.4th at
pp. 148‒149, fn. 6.)
18.
was no plain, speedy, and adequate remedy available to them, as (1) the trial court’s order
suggested they could request a further court order as to the written testing materials and
the minor’s answers, (2) if they did not receive reports satisfying section 2032.610,
subdivision (a), they had a statutory right to bring a motion to compel delivery of the
reports, and (3) they had the right to appeal from a final judgment. (Roe, at p. 149.) The
appellate court therefore determined no writ relief was warranted. (Ibid.)
At best, Roe stands for the proposition that a trial court is not required to order the
production of test materials or test data under section 2032.610. Under Carpenter,
however, given the trial court’s broad discretion in discovery matters, it retains the
discretion to order the production of such materials. Moreover, although not developed
by either party, since section 2032.530, subdivision (a) grants the examinee the right to
record a mental examination by audio technology, it implies the examinee may retain a
copy of the audio recording. Where, as here, the trial court ordered the examiner to
record the examination, the trial court had discretion to order the examiner to provide a
copy to the examinee. Therefore, we conclude the trial court here had the discretion to
order the production of the raw data and audio recording, as stated in its order.
B. The Trial Court Did Not Abuse Its Discretion
The issue then is whether the trial court abused its discretion in ordering
transmission of the raw data and audio recording to plaintiffs’ counsel. Defendants
contend it did because plaintiffs’ need for these materials is outweighed by the need to
protect Dr. Victor from violating her ethical and professional obligations.
The only evidence on this issue that was before the trial court was Dr. Victor’s
declaration on the “nature, scope and conditions of the proposed neuropsychological
examination.” Dr. Victor stated she would agree to audio recording of clinical interviews
only if she recorded the interview herself and sent a copy to the plaintiffs’ licensed
psychology expert, and she would only provide “raw test data, test materials, copyrighted
19.
publications, or documents containing proprietary information” to a licensed
psychologist.
Dr. Victor explained the problems with TPO and recording the examination,
including: (1) compromising the validity of future neuropsychological test results;
(2) potential misuse and misinterpretation of tests by untrained TPOs “who have no
compelling interest in protection of copyrighted test content”; (3) potential conflicts with
the APA Ethical Standards and “several key principles in the Specialty Guidelines for
Forensic Psychology of the American Psychological Association (2013)”; (4) the
increased likelihood test content and instructions would be disseminated which “raises
the risk that motivated parties will coach and prepare examinees for testing in advance,
specifically to influence test results”; and (5) “ ‘[l]awyers involved in brain injury
litigation routinely coach their clients how to approach neuropsychological testing to
their advantage.’ ” Dr. Victor asserted TPO “confers no overriding benefits that offset
the significant costs of exposing test materials.”
While Dr. Victor explained the dangers associated with TPO, she did not explain
why a protective order would not ameliorate those dangers. She also did not explain why
her ethical obligations would be violated if a court ordered her to disclose the raw data
and audio recording to plaintiffs’ attorney subject to a protective order. Dr. Victor
identified numerous standards in the APA Ethical Standards by number which she
claimed could be violated if TPO were allowed, but Dr. Victor did not explain the
potential violations and the APA Ethical Standards were not submitted to the trial court.
Weighed against this evidence is plaintiffs’ right to take discovery and cross-
examine defendants’ expert witnesses, which includes being able to examine the expert
on the matter upon which the expert’s opinion is based and the reasons for that opinion.
(Evid. Code, § 721, subd. (a).) Without the raw data and audio recording, plaintiffs
cannot effectively scrutinize the way the data was collected, determine if there are
20.
discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the
neuropsychologist’s opinion.
While defendants assert plaintiffs’ attorneys could not interpret the test materials,
they would not necessarily be required to do so to use the materials for purposes of cross-
examination, since disclosure of these materials may help to protect against abuse and
disputes over what transpired during the examination. As the court explained in
Golfland, the purpose of audiotaping the examination is “to ensure that the examiner does
not overstep the bounds set by the court for the mental examination, that the context of
the responses can be judged for purposes of trial, that the examinee’s interests are
protected (especially since the examinee’s counsel ordinarily will not be present),
and that any evidence of abuse can be presented to the court.” (Golfland, supra,
108 Cal.App.4th at p. 750.) Without plaintiffs’ access to the audiotape and raw data,
plaintiffs cannot adequately protect these interests.
Defendants argue it is sufficient to transmit the raw data and audio recording to
plaintiffs’ retained expert. But as plaintiffs assert, they should not be forced to retain an
expert to gain access to these materials and even if they do retain one, that expert can
only assist the attorney in preparing for cross-examination; to prepare and conduct an
effective cross-examination, “the attorney must themselves possess more than a second-
hand understanding of the information being scrutinized.”
Based on the record before it, the trial court reasonably could find plaintiffs had a
legitimate need for the raw data and audio recording and the concerns about maintaining
test security would be satisfied with a protective order. While defendants assert
Dr. Victor stated she would violate her professional and ethical obligations if she
transferred the raw data and audio recording to plaintiffs’ attorney, Dr. Victor did not
state that those obligations would be violated if a protective order were issued.
Defendants assert both California and federal law require protection of test
materials. As for California law, defendants cite regulation 1396.3, which prohibits a
21.
psychologist from producing or describing “in public or in publications subject to general
public distribution” certain psychological tests or other assessment devices and requires
the psychologist to “limit access to such tests or devices to persons with professional
interests who will safeguard their use.” While this regulation requires psychologists to
maintain test security, it does not address a psychologist’s duty when a court order
requires an attorney’s access to psychological tests or devices, particularly subject to a
protective order that requires the parties to safeguard the use of the tests or devices. Put
another way, the regulation does not prohibit a psychologist from producing tests or
devices when ordered by a court subject to a protective order.11
As for federal law, defendants cite to the United States Supreme Court case of
Detroit Edison Co. v. NLRB (1979) 440 U.S. 301 (Detroit Edison), asserting it stands for
the proposition “that courts should prohibit the disclosure of confidential psychological
11 We note that Standard 9.04 of the APA Ethical Standards, which according to
Business and Professions Code section 2936 sets the standard of care for psychologists in
California, allows for the release of “test data,” which is defined as “raw and scaled
scores, client/patient responses to test questions or stimuli, and psychologists’ notes and
recordings concerning client/patient statements and behavior during an examination,” as
well as “[t]hose portions of test materials that include client/patient responses,” pursuant
to a client/patient release. In the absence of a release, “psychologists provide test data
only as required by law or court order.” (Emphasis added.) Thus, the ethical standards
arguably are not violated where, as here, a court orders release of test data.
While defendants assert AACN has taken the position that Standard 9.04 stems
from a misunderstanding of “HIPAA” requirements, which do not require psychologists
to release test data to a client or patient, this misunderstanding does not appear to extend
to the statement in Standard 9.04 that allows psychologists to provide test data as
required by law or court order.
Standard 9.11 addresses “test materials,” which are defined as “manuals,
instruments, protocols, and test questions or stimuli.” Standard 9.11 provides:
“Psychologists make reasonable efforts to maintain the integrity and security of test
materials and other assessment techniques consistent with law and contractual
obligations, and in a manner that permits adherence to this Ethics Code.” This standard,
however, does not require a psychologist to defy a court order for the purpose of guarding
test materials.
22.
testing material and raw psychological test data.” Defendants, however, overstate the
holding of this case.
In Detroit Edison, the employer refused a union’s request to disclose certain
information about employee aptitude tests so the union could prepare for a grievance
arbitration. (Detroit Edison, supra, 440 U.S. at p. 303.) The tests were kept in the offices
of the employer’s “industrial psychologists who, as members of the American
Psychological Association, deemed themselves ethically bound not to disclose test
information to unauthorized persons.” (Id. at pp. 306‒307.) The employer refused to
disclose to the union the test questions, employee answer sheets, and the scores linked
with the names of employees who received them, asserting it was necessary to maintain
complete confidentiality of these materials to ensure the future integrity of the tests and to
protect the examinees’ privacy interests. (Id. at pp. 303, 307‒308.) The National Labor
Relations Board (board) ordered the employer to turn over all the materials directly to the
union, subject to certain restrictions on the union’s use of the information. (Id. at
pp. 303‒304.)
The United States Supreme Court held the board abused its remedial discretion in
ordering the employer to turn over the test battery and answer sheets directly to the union.
(Detroit Edison, supra, 440 U.S. at pp. 312‒317.) The Supreme Court noted the
reasonableness of the employer’s concern for test secrecy essentially had been conceded
and the board had not cited any principle of national labor policy to warrant a remedy that
would disserve this interest. (Id. at p. 315.) The Supreme Court found it obvious the
remedy the board selected—“barring the Union from taking any action that might cause
the tests to fall into the hands of employees who have taken or are likely to take them”—
did not adequately protect test security, as the restriction was “only as effective as the
sanctions available to enforce them.” (Ibid.) The Supreme Court doubted whether the
union would be subject to a contempt citation if it ignored the restrictions, as it was not a
party to the enforcement proceedings in the Court of Appeals and board regulations
23.
contemplated a contempt sanction only against a respondent with contempt proceedings
initiated only at the board’s general counsel’s discretion, and while in theory the board’s
general counsel could bring a separate unfair labor practice charge against the union, the
general counsel could refuse to issue such a complaint. (Id. at pp. 315‒316.) Moreover,
the union “would not be accountable in either contempt or unfair labor practice
proceedings” if there were inadvertent leaks. (Id. at p. 316.) Since the board did not
identify any “justification for a remedy granting such scant protection to the [employer]’s
undisputed and important interests in test secrecy,” the board abused its discretion. (Id. at
pp. 316‒317.)12
Contrary to defendants’ assertion, the Supreme Court did not hold that courts
should prohibit disclosure of psychological testing materials or data. Rather, the
Supreme Court, recognizing the importance of maintaining test security, found the
protective order the board issued was insufficient to protect that security because it could
not be enforced against the union if the union were to violate it.13 In contrast here, the
12 With respect to the test scores linked with the employees’ names, the Supreme
Court accepted for sake of discussion that the scores were potentially relevant to the
union’s grievance, as well as the board’s position the ethical standards of a private group
could not defeat the federal statutory duty to disclose relevant information. (Detroit
Edison, supra, 440 U.S. at p. 317.) The Supreme Court was unable to sustain the board’s
conclusion the employer violated its obligation to bargain in good faith by resisting an
unconsented-to disclosure of individual test results given (1) the sensitive nature of
testing information, (2) the minimal burden compliance with the employer’s offer to
release the test results with the employee’s consent, and (3) the absence of evidence the
employer fabricated concern for employee confidentiality to frustrate the union’s
discharge of its responsibilities. (Id. at pp. 319‒320.)
13 The dissent in Detroit Edison believed the union would respect the confidentiality
of the materials and take due precautions against inadvertent disclosure. (See Detroit
Edison, supra, 440 U.S. at p. 323 (dis. opn. of White, J.) The dissent acknowledged the
real concern was inadvertent disclosure, but it did not believe there was any “basis for
assuming that the Union would handle the materials so cavalierly as to chance accidental
disclosure, given the gravity with which the issue has been treated by all concerned.”
(Detroit Edison, at p. 324 (dis. opn. of White, J.).)
24.
protective order can be enforced against plaintiffs’ attorney if he or his staff were to
violate it by contempt or other sanctions. (Fox Searchlight Pictures, Inc. v. Paladino
(2001) 89 Cal.App.4th 294, 317.)14
Defendants assert a protective order is insufficient to protect test security because
(1) the transfer of testing materials to plaintiffs’ attorney is an ethical and professional
violation even with a protective order; (2) protective orders do not erase knowledge an
attorney may acquire concerning the test, which can be used to educate future clients
about the test; and (3) the harm caused by a single violation of the protective order,
whether intentional or inadvertent, outweighs the necessity of providing the testing
materials to a non-psychologist.
On the first and second points, defendants cite to evidence that was not before the
trial court when ruling on the motion for a mental examination. As we have explained,
the only evidence before the trial court on the original motion was Dr. Victor’s first
declaration, which did not state that a protective order would not satisfy her ethical
concerns. While Dr. Victor did state that dissemination of testing materials raises the risk
that “motivated parties will coach and prepare examinees for testing in advance,
specifically to influence the test results,” that risk is not unique to psychological testing.
Defendants also cite Brutsch v. City of Los Angeles (1992) 3 Cal.App.4th 354 as
an example of when a court upheld the security of testing materials. While that court
recognized such an interest, the case did not involve disclosure of those materials
pursuant to a protective order. (Id. at p. 359.)
14 For example, “[u]nder California’s general contempt law, ‘[d]isobedience of any
lawful judgment, order, or process of court’ is punishable as a civil contempt ([ ] § 1209,
subd. (a)(5).) A civil contempt may be punished by a fine or imprisonment or both ([ ]
§ 1218) or, under appropriate circumstances, performance may be compelled by
indefinite imprisonment ([ ] § 1219). ‘Willful disobedience of any process or order
lawfully issued by any court’ also constitutes a criminal contempt, which is punishable as
a misdemeanor. (Pen. Code, § 166, subd. (a)(4); see Pen. Code, § 19.)” (City of Palo
Alto v. Service Employees Intern. Union (1999) 77 Cal.App.4th 327, 339.)
25.
Moreover, defendants do not show testing integrity is meaningfully compromised by the
potential for some attorney recall.
On the third point, as plaintiffs point out, technology makes transmission of highly
sensitive information possible in many cases involving sensitive information, including
personal injury, employment, business torts, and intellectual property. There is no
evidence that attorneys regularly violate protective orders, including those concerning
psychological or neuropsychological testing materials. Defendants have not shown there
is a substantial risk of abusive intentional dissemination or an unacceptable risk of
inadvertent disclosure such that the trial court was required to find a protective order
would not adequately address Dr. Victor’s concerns about test security.
Defendants also contend the protective order is overbroad because it requires
disclosure to the jury during trial, which runs the risk of the jurors disclosing the
information to anyone since they are not subject to the protective order. As plaintiffs
point out, there may not be a jury trial and even if there is, any confidentiality concerns
may be addressed at the time of trial, such as through defendants’ right to object and seek
further protections to limit the disclosure of test materials.
Defendants assert the trial court’s transmission order deprives them from retaining
another neuropsychological expert, which renders them powerless to fight against
Buttram’s traumatic brain injury claim. When the trial court issued the transmission
order, however, it did not have before it any evidence defendants would be unable to
retain another neuropsychologist should Dr. Victor recuse herself. Based on the record
before it, the trial court reasonably could believe defendants would be able to retain a
neuropsychologist who would comply with its order.
In sum, the trial court did not abuse its discretion in ordering transmission of raw
data and audio recording to plaintiffs’ attorney subject to a protective order, as plaintiffs
26.
demonstrated a need for the materials and the protective order would address the
concerns about test security and integrity.15
III. The Motion for Reconsideration
Defendants assert the trial court abused its discretion when it denied their motion
for reconsideration because they presented new facts and circumstances that required
reconsideration of the transmission order. They further contend that given the limited
time for bringing the motion for reconsideration, they presented “overwhelming
evidence” the neuropsychological exam order had the practical effect of excluding their
expert, thereby denying them a fair trial on the merits of Buttram’s traumatic brain injury
claim.
Section 1008 governs applications for reconsideration and renewed applications.
(Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015)
61 Cal.4th 830, 839; Standard Microsystems Corp. v. Winbond Electronics Corp. (2009)
179 Cal.App.4th 868, 885, disapproved on other grounds in Even Zohar Construction &
Remodeling, Inc. v. Bellaire Townhouses, LLC, supra, at p. 844.) Applications for
reconsideration, which may be brought by any party affected by the order, are governed
by section 1008, subdivision (a), which requires the motion to be (1) filed “within
10 days after service upon the party of written notice of entry of the order” of which
reconsideration is sought, (2) supported by “new or different facts, circumstances, or
law,” and (3) accompanied by an affidavit stating the details of the first motion and “what
15 On November 23, 2022, plaintiffs requested we take judicial notice of
26 unpublished federal district court cases and one published out-of-state court case,
on which we deferred ruling. We deny the request for judicial notice. The unpublished
federal district court decisions are not relevant to our disposition of the case and are not
binding authority. (People v. Zapien (1993) 4 Cal.4th 929, 989.) Published decisions of
other states are citable authority without the need for judicial notice.
27.
new or different facts, circumstances, or law are claimed to be shown.” (§ 1008, subd.
(a).)16
Section 1008, subdivision (b) governs renewed applications or motions. It allows
a party who originally applied “for an order which was refused in whole or part” to make
a subsequent application for the same order based on “new or different facts,
circumstances, or law.” (§ 1008, subd. (b).)17 A renewed motion requires the same
affidavit as a motion for reconsideration but does not impose a time limit for bringing the
motion. (Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 768.)
“Courts have construed section 1008 to require a party filing an application for
reconsideration or a renewed application to show diligence with a satisfactory
explanation for not having presented the new or different information earlier.” (Even
Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC, supra, 61 Cal.4th
at p. 839.)
“An order denying a motion for reconsideration is interpreted as a determination
that the application does not meet the requirements of section 1008. If the requirements
16 Section 1008, subdivision (a) provides: “When an application for an order has
been made to a judge, or to a court, and refused in whole or in part, or granted, or granted
conditionally, or on terms, any party affected by the order may, within 10 days after
service upon the party of written notice of entry of the order and based upon new or
different facts, circumstances, or law, make application to the same judge or court that
made the order, to reconsider the matter and modify, amend, or revoke the prior order.
The party making the application shall state by affidavit what application was made
before, when and to what judge, what order or decisions were made, and what new or
different facts, circumstances, or law are claimed to be shown.”
17 Section 1008, subdivision (b) provides: “A party who originally made an
application for an order which was refused in whole or part, or granted conditionally or
on terms, may make a subsequent application for the same order upon new or different
facts, circumstances, or law, in which case it shall be shown by affidavit what application
was made before, when and to what judge, what order or decisions were made, and what
new or different facts, circumstances, or law are claimed to be shown. For a failure to
comply with this subdivision, any order made on a subsequent application may be
revoked or set aside on ex parte motion.”
28.
have been met to the satisfaction of the court but the court is not persuaded the earlier
ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the
earlier ruling.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.)
Defendants argue the trial court should have granted their motion for
reconsideration based on new facts and circumstances, as they presented evidence
Dr. Victor recused herself after reviewing the transmission order and they were unable to
find a substitute neuropsychologist. Assuming defendants presented new facts and
circumstances and provided a satisfactory explanation for failing to produce them earlier,
we will not reverse on this procedural technicality.
It is clear from the transcript of the hearing that the trial court denied the
reconsideration motion after examining the merits of the newly proferred evidence. In
other words, the court’s intent was to reaffirm the earlier ruling on the merits. To reverse
and remand for the trial court to grant the reconsideration motion and then reaffirm its
earlier ruling would be futile and a waste of judicial resources. (Charles H. Duell, Inc., v.
Metro–Goldwyn–Mayer Corp. (1932) 128 Cal.App. 376, 385 [“it remains a rule of
appellate procedure that a reviewing court will not remand a case where further
proceedings therein would be futile”].)
We find no abuse of discretion in the trial court’s de facto reaffirmance of its
earlier ruling. In ruling on the motion, the trial court reviewed the AACN position paper
on test security, which Dr. Victor referred to in her declaration in support of the motion
for reconsideration. The AACN recognizes there are competing interests between the
legal and psychological communities concerning the legal community’s access to
psychological and neuropsychological tests and test-related materials. The AACN
acknowledges that “[a]s a last resort,” psychological organizations and test publishers
have recommended the use of protective orders to guard test security, but AACN had
concerns about protective orders, as they may not be fully enforced, a single violation
29.
could result in widespread digital access of test materials by non-psychologists, and they
do not erase newly acquired knowledge of tests from non-psychologists’ minds.
The AACN notes as an alternative, or in addition, to protective orders “some
practitioners may opt for other methods of maintaining test security, such as when faced
with attorney demands for access to audio recordings of testing and test data sheets that
show questions and answers, they proactively adjust test batteries and materials to protect
tests,” by only administering visual-type tests when audio recording of testing is allowed,
or using reconfigured test data sheets that do not contain test stimuli, test instructions, or
scoring algorithms when ordered to turn over test data sheets to opposing attorneys.
The AACN further advises: “When faced with a judicial order that a
neuropsychologist believes undermines test security, the practitioner can choose to
withdraw from the case, and can also opt to document, through canvassing of other local
neuropsychologists, that the broader neuropsychology community refuses to conduct
exams under invasive parameters that threaten the validity of the assessment process.
This latter action may demonstrate to the court that the imposed conditions are not
reasonable and not necessary.”
It is this last guidance the trial court considered in ruling on the reconsideration
motion. The trial court, however, believed the evidence defendants submitted—“two
additional experts who refuse to do the exam under the court’s existing order”—was
“hardly a canvas.” The trial court did not abuse its discretion in so finding. In support of
the motion, defendants’ attorney declared that after the transmission order was issued, she
spoke to Dr. Boone, who stated she would not comply with the order, and with Dr. Holt,
who stated no licensed neuropsychologist could comply with the order as written.
Defendants’ attorney further declared she “ceased canvassing licensed
neuropsychologists at this point” because it appeared no additional value would be gained
in attempting to find a neuropsychologist who would agree with the transmission order.
The trial court reasonably could find evidence in the form of conversations with two
30.
neuropsychologists was insufficient to establish, as stated in the AACN position paper,
that the “broader neuropsychology community refuses to conduct exams under invasive
parameters that threaten the validity of the assessment process.”
Defendants assert the trial court ignored the declarations of Drs. Lulow and
Friedman that defendants provided with their reply brief. While Drs. Lulow and
Friedman stated they complied with orders in prior cases requiring the disclosure of
testing materials to a party’s attorney because courts ordered them to do so, and they
objected and “continue to object to the forced violation of [their] ethical and legal duties”
as neuropsychologists, neither doctor explicitly stated they would refuse to conduct an
examination under the parameters set forth in the transmission order if ordered by a court.
They also did not state that the broader neuropsychological community refuses to conduct
exams under those parameters.
Defendants argue because section 1008, subdivision (a), required a motion for
reconsideration to be filed within 10 days after service of notice of entry of the mental
examination order, the trial court acted unreasonably by requiring them to obtain a
comprehensive canvas of neuropsychologists. Defendants assert it was unreasonable to
expect them to obtain such a canvas in 10 days and to discount Dr. Victor’s recusal and
the opinions of the four neuropsychologists because defendants did not speak to more
neuropsychologists.
Defendants fault the trial court for relying on the standards that defendants’ own
experts relied on. The trial court, however, cannot be faulted for expecting defendants to
present more than a handful of neuropsychologists before it would modify the
transmission order. While defendants claim their time to collect evidence was limited,
they never asked for a continuance of the hearing so they could do so.
Moreover, the time-frame argument is a red herring, as defendants had, and still
have, the ability to bring a renewed motion under section 1008, subdivision (b), for the
trial court to grant the relief they requested in their motion for a mental examination,
31.
namely, an order requiring transmission of the testing materials, raw data, and audio
recording only to a licensed psychologist or neuropsychologist. (See, e.g., California
Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 43 [where two
motions for attorney fees sought “identical relief,” the second motion was a motion for
“the same order” under section 1008, subdivision (b)].)18 That motion has no time limit.
In sum, there is no apparent abuse of discretion in denying the motion for
reconsideration.
IV. Conclusion
Defendants fail to establish that the trial court was required to (1) order the raw
data and audio recording be transmitted only to a licensed psychologist or
neuropsychologist, or (2) grant reconsideration and modify the transmission order to so
provide. Consequently, “they have not demonstrated in this writ proceeding that the
superior court was under a legal duty to order, or that its discretion could be legally
exercised only by ordering,” transmission only to a licensed psychologist or
neuropsychologist. (Roe, supra, 243 Cal.App.4th at p. 149, citing § 1085, subd. (a) &
Babb v. Superior Court (1971) 3 Cal.3d 841, 851.)
Moreover, defendants have not demonstrated there is no “plain, speedy, and
adequate remedy, in the ordinary course of law” available to them. (§ 1086.)
Defendants “bear the burden of showing that they lack such a remedy.” (Roe, supra,
243 Cal.App.4th at p. 149.) Defendants complain they have no recourse and without our
intervention they will have to proceed without an expert. We recognize defendants’
interest in having a neuropsychologist assess Buttram’s traumatic brain injury claim, and
that “a court must act with great care before entering an order which as a practical matter
excludes a designated expert from testifying.” (Stony Brook I Homeowners Ass’n v.
18 In addition, the trial court retains “authority to control discovery, including its
right to issue, modify, or vacate protective orders.” (Mercury Interactive Corp. v. Klein
(2007) 158 Cal.App.4th 60, 106.)
32.
Superior Court (2000) 84 Cal.App.4th 691, 700.) But the trial court has not foreclosed
future relief should defendants be unable to locate a neuropsychologist that will comply
with the transmission order, as defendants can renew their motion for expert-to-expert
transmission under section 1008, subdivision (b).
Defendants assert additional canvassing of neuropsychologists would be futile, as
shown by the amicus curiae briefs, documents filed in a case pending in Los Angeles
Superior Court,19 and the declaration of two neuropsychologists filed with defendants’
reply brief. The larger point here, however, is that the trial court was never presented
with this evidence. For example, while AACN states in its brief that a neuropsychologist
cannot participate if disclosure of testing information is compelled by the court, this
statement appears inconsistent with its position paper, which provides suggestions on
how a neuropsychologist can comply with court-ordered disclosure to non-
neuropsychologists.20 The propositions from the documents filed in the Los Angeles
19 The propositions from the documents submitted in a different case pending in Los
Angeles Superior Court, Ellensohn v. HHS Construction, Inc. (Super. Ct. L.A. County,
No. BC648515), are not properly before us. These documents include 22 declarations
from neuropsychologists stating they could not comply with an order that is like the
transmission order. Since defendants are offering the documents for the truth of the
statements made therein, we deny defendants’ January 4, 2023, request to take judicial
notice of the documents. “It is well settled that a court cannot take judicial notice of the
truth of matters stated in pleadings or affidavits in the court file of another case, although
it can be noticed that the documents exist. Judicial notice can be taken only of the
contents of orders, findings of fact, conclusions of law, and judgments.” (Bennett v.
Regents of University of California (2005) 133 Cal.App.4th 347, 358, fn. 7, citing
Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.)
20 To the extent the test publishers, Manson Western and PAR, object to the
transmission order on copyright or trade secret grounds, those issues were not raised by
defendants or considered by the trial court. We generally do not consider arguments
raised by amici curiae that are not presented in the trial court or urged by the parties on
appeal. (Mercury Casualty Co. v. Hertz Corp. (1997) 59 Cal.App.4th 414, 425;
California Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th 1264, 1274‒
1275.)
33.
Superior Court case are not properly before us, and we decline to consider the dual
declaration of Drs. George K. Henry and David Lechuga, as the declaration presents
evidence that was not before the trial court.21
Accordingly, no writ relief is warranted concerning either the motion to compel
the mental examination or the motion for reconsideration.
Defendants and amici curiae urge us to create a bright-line rule limiting
transmission of neuropsychological and psychological testing materials and raw test data,
as well as audio recordings of examinations, to licensed neuropsychologists or
psychologists. They contend without a rule requiring expert-to-expert transmission of
these materials, the integrity and security of neuropsychological and psychological tests
will be compromised. The Legislature, however, has not codified the expert-to-expert
limitation advocated by defendants and amici curiae. On this writ, our role is simply to
determine whether, based on the rules of evidence, the trial court abused its discretion in
21 We recognize that on an original petition for mandamus relief, a reviewing court
has discretion to consider evidence that was not before the trial court. (Bruce v. Gregory
(1967) 65 Cal.2d 666, 670‒671; McCarthy v. Superior Court (1987) 191 Cal.App.3d
1023, 1030, fn. 3.) However, a reviewing court ordinarily “ ‘will not consider evidence
arising after the trial court ruling, involving facts open to controversy which were not
placed in issue or resolved by the trial court.’ ” (Rodriguez v. Superior Court (2021)
70 Cal.App.5th 628, 642‒643, review granted Jan. 5, 2022, S272129; see People v.
Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1173, fn. 5; Stevens v. Superior Court
(1999) 75 Cal.App.4th 594, 607, fn. 13.) While we grant defendants’ January 3, 2023
request to file a supplemental appendix of exhibits comprised of the minute order from
the August 9, 2022 hearing on defendants’ motion for reconsideration and the dual
declaration of Drs. Henry and Lechuga, we decline to consider the declaration.
Plaintiffs filed an appendix of exhibits with their return, comprised of declarations
by plaintiffs’ attorneys Mark Nagle and David Shay. Attached to Nagle’s declaration is a
document purporting to be a survey of federal and out-of-state cases regarding balancing
expert discovery rules and psychologists’ ethical and contractual duties, while Shay’s
declaration contains opinion and evidence not presented to the trial court. Defendants
filed a motion to strike the declarations and attached exhibits on numerous evidentiary
grounds. As these declarations were not submitted to the trial court and are irrelevant to
our analysis, we grant defendants’ motion to strike filed on December 30, 2022.
34.
ordering transmission of these materials to plaintiffs’ attorney subject to a protective
order. We recognize there are concerns that a protective order is insufficient to protect
test security and that no neuropsychological or psychological expert will comply with
such an order. These concerns, however, are better expressed to the Legislature, which is
empowered to create evidentiary rules limiting the transmission of discovery materials.
DISPOSITION
The order to show cause is discharged and the petition for writ of mandate is
denied. The stay of proceedings in the trial court is dissolved upon finality of this
decision in this court. Real parties in interest are entitled to recover their costs in this writ
proceeding.
DE SANTOS, J.
WE CONCUR:
POOCHIGIAN, Acting P. J.
PEÑA, J.
35.
Filed 5/18/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
RANDY’S TRUCKING, INC., et al.,
F084849
Petitioners,
(Super. Ct. No. BCV-20-100982)
v.
ORDER GRANTING REQUEST FOR
THE SUPERIOR COURT OF KERN PUBLICATION
COUNTY,
Respondent;
ANGELA BUTTRAM et al.,
Real Parties in Interest.
As the nonpublished opinion filed April 26, 2023, in the above entitled matter
hereby meets the standards for publication specified in the California Rules of Court,
rule 8.1105(c), it is ordered that the opinion be certified for publication in the Official
Reports.
DE SANTOS, J.
WE CONCUR:
POOCHIGIAN, Acting P. J.
PEÑA, J.