ORIGINAL PROCEEDINGS in mandate. Yvette Palazuelos, Judge. Petition granted. (Los Angeles County Super. Ct. No. BC398650).
The opinion of the court was delivered by: Willhite, J.
CERTIFIED FOR PUBLICATION
Plaintiff Steven Braun (Braun) sued defendants Toyota Motor Sales, U.S.A. (Toyota) and Randall Bauer (Bauer) for, among other things, gender discrimination and sexual harassment under the Fair Employment and Housing Act (Gov. Code, §§ 12940, et. seq.), and for common law claims of defamation, constructive discharge, and intentional and negligent infliction of emotional distress. In support of the claims, Braun alleged that while working for Toyota as a manager in various departments, he was sexually harassed by Bauer, who was a Corporate Manager to whom Braun reported. After Braun spurned Bauer's advances, according to Braun, Bauer and Toyota retaliated against him by issuing false reprimands and other adverse employment actions forcing him to leave the company.
In the trial court, Toyota and Bauer moved to compel Braun to submit to an independent psychiatric examination (Code Civ. Proc., § 2032.310). The trial court granted the motion, but permitted Braun's attorney to be present in an adjoining room during the examination so as to monitor it. Toyota and Bauer filed a petition for writ of mandate in this court to compel the trial court to set aside the portion of the order permitting Braun's attorney's presence in an adjoining room and his contemporaneous monitoring of the examination. Toyota contends that allowing the presence of counsel was error because the experts retained for the exam believe counsel's presence would interfere with the validity of the exam and Braun made no evidentiary showing that his counsel's presence in an adjoining room was necessary to protect his privacy.
We issued an alternative writ directing the trial court to set aside the portion of its order permitting Braun's counsel's attendance at the examination or to show cause why we should not issue the writ requested. The trial court declined to take action, and we have received Braun's return to the petition and the reply by Toyota and Bauer. We now issue the writ.
In response to interrogatories, Braun stated that he has sought mental health treatment, counseling and therapy due to stress and anxiety from the alleged harassment in his employment and has been examined by mental health practitioners of his own choice. He also stated in his interrogatory responses (and in testimony in an arbitration proceeding concerning his claims) that he continues to suffer emotional distress from the harassment.
Contending that Braun placed his mental health at issue, Toyota*fn1 sought an independent psychiatric examination under Code of Civil Procedure section 2032.310, et seq. Braun refused to stipulate to an examination and Toyota moved to compel. Toyota identified Dr. Charles Hinkin to administer eight written psychological tests over an eight-hour period and Dr. Saul Faerstein to conduct a personal one-on-one session for three to four hours; the experts' extensive curriculum vitae were attached as exhibits to the motion.
In opposition to the motion to compel, Braun demanded several accommodations, including that the examination be audio recorded (as is his right under Code Civ. Proc., § 2032.530, subd. (a)) and that his attorney be present at the examination location, to contemporaneously listen to and monitor the examination. Braun acknowledged that although California law (in particular Edwards v. Superior Court (1976) 16 Cal.3d 905, 911) does not generally permit the attendance of counsel at the examination itself, he contended nonetheless that "based upon the circumstances" (which were not specified), the court should protect Braun's privacy rights during the examination by allowing his counsel to be present nearby and to listen as the examination progressed. Braun relied on Vinson v. Superior Court (1987) 43 Cal.3d 833 (Vinson) which, although following Edwards, pointed out that "when the circumstances warrant it, the courts may fashion some means of protecting an examinee from intrusive or offensive probing." (Id. at p. 845.)
In reply, Toyota objected to the demand that Braun's attorney be permitted to monitor and listen to the examination, because Toyota's experts believed that counsel's presence would interfere with the validity of the exam, that the experts might refuse to perform the examination under such circumstances, and that Bauer made no evidentiary showing that his counsel's presence in an adjoining room was necessary to protect his privacy. Toyota submitted a declaration from Dr. Faerstein, who stated that the proposed diagnostic tests would assist in his psychiatric evaluation of Braun so that he would be able to testify with the required degree of medical certainty as to the nature, cause, and scope of Braun's emotional damages. He also declared that his office could not accommodate a request for a third person to remotely view or listen to the exam, but that he could record the exam.
At the hearing on the motion on August 12, 2010, before argument, the trial court denied the motion without prejudice and suggested that the parties meet and confer to reach an agreement.*fn2 The court then engaged in a "meet and confer" proceeding with the attorneys. Braun's counsel suggested that he be present in an adjoining room during the examination to engage in "passive auditory monitoring" of the examination. He stated that "since 1993" he had been audio taping and contemporaneously listening to such examinations from another room and claimed "that's always done." Toyota's counsel objected to the presence of Braun's attorney at the location of the examination, because of the danger that Braun might receive advice from his attorney during breaks and thus violate the integrity of the examination. The court agreed to make an order prohibiting communication about "the substance of the questioning," but not prohibiting them from talking during breaks: "Just like any witness who testifies in court, . . . lawyers shouldn't influence what's being said, but certainly [lawyer and client] can talk to each other."
In discussing the tests to be administered by Dr. Hinkin, Braun's counsel objected to the proposed number of diagnostic tests to be performed by Dr. Hinkin and the proposed length of the testing and in-person interview by Dr. Faerstein. He expressed his concern as follows: "What I want to make sure before we leave here is that counsel is not going to use this opportunity . . . to redepose plaintiff when they had the opportunity to videotape him [at his deposition and did not]." Toyota's attorney argued that whereas Toyota had provided an expert declaration explaining the need for the tests and interview, Braun had provided no evidence that the proposed tests or interview were unnecessary or unduly burdensome. The court agreed to order seven hours for diagnostic testing and four hours for interview. The place of the testing and interview would be Dr. Faerstein's office.
After further discussion, Toyota's counsel stated that "pursuant to the court's order, I think we would have an agreement." Based on a request by Braun's attorney, the court also ordered that the exam take place on a Saturday.*fn3
On August 17, 2010, Toyota filed an ex parte motion to modify the order, arguing that California case law does not permit the presence of an attorney at an independent medical examination except in rare and unusual circumstances, which Braun had not presented. Toyota also submitted the declarations of Drs. Hinkin and Faerstein, who concurred that the presence of an attorney at the examination, even in a remote location, could interfere with the relationship between the examiner and plaintiff and negate the value of the exam. Dr. Faerstein stated he had serious concerns about proceeding with the examination and "would object" to conducting an exam with counsel present and again noted that his office was not equipped to allow a ...