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Martinez v. County of Fresno

United States District Court, E.D. California

November 18, 2019

HERARDO DIONICIO MARTINEZ, an individual, Plaintiff,
COUNTY OF FRESNO, a Public Entity; ANITA HARPER, Deputy Public Guardian; and DOES 1-15, inclusive, Defendants.


          Barbara A. McAuliffe United States Magistrate Judge.

         Currently pending before the Court is Plaintiff Herardo Dionicio Martinez's Motion to Resolve Discovery Dispute. (Doc. 32.) By the motion, Plaintiff requests that the Court order Defendant County of Fresno to consent to a mental evaluation of Robert Camarillo, a non-party subject to conservatorship, pursuant to Federal Rule of Civil Procedure 35. (Doc. 32.) Defendants County of Fresno and Anita Harper opposed the motion on November 1, 2019. (Doc. 34.) Plaintiff did not file a reply. The Court found the motion appropriate for resolution without oral argument and vacated the November 15, 2019 hearing. See Local Rule 230(g). The matter is deemed submitted.


         On March 26, 2018, Plaintiff commenced this lawsuit in Fresno County Superior Court alleging discrimination by the County of Fresno and Anita Harper, Deputy Public Guardian, due to Plaintiff's sexual orientation.[1] (Doc. 1.) In the complaint, Plaintiff alleged that Defendant Harper was appointed as limited conservator of Robert Camarillo on June 3, 2013. Prior to the appointment, Plaintiff had a social and romantic same sex relationship with Mr. Camarillo. This relationship continued until approximately the summer of 2016 when Defendant Harper allegedly interfered with the relationship by accusing Plaintiff of being abusive toward Mr. Camarillo when there was no evidence of any such abuse. Defendant Harper's interference with the relationship reportedly began after Plaintiff made grievances in 2015 against the group home where Defendant Harper placed Mr. Camarillo. (See Doc. 1, Compl. at ¶¶ 8-9.)

         Plaintiff forwarded claims for violation of the Equal Protection Clause of the Fourteenth Amendment against the County and Defendant Harper in her official capacity, violation of the California Constitution, and violation of California Civil Code § 52.1. (Id. at ¶¶ 12-20.) The case was removed to this Court on June 8, 2018, based on federal question jurisdiction. (Doc. 1.)

         On September 5, 2018, the Court issued a Scheduling Conference Order, which set the initial discovery deadlines in this action. The Scheduling Order expressly informed the parties that compliance with the discovery cutoffs “requires motions to compel be filed and heard sufficiently in advance of the cutoff so that the Court may grant effective relief within the allotted discovery time.” (Doc. 13 at 3.) The Scheduling Order also explicitly stated that a party's “failure to have a discovery dispute heard sufficiently in advance of the discovery cutoff may result in denial of the motion as untimely.” (Id.)

         On June 14, 2019, Plaintiff filed a motion to modify the Scheduling Conference Order pursuant to Federal Rule of Civil Procedure 16(b)(4). (Doc. 18.) According to the motion, Plaintiff sought modification due primarily to events involving current and former counsel, including other conflicting matters. (Id.) In response to the motion, the Court held a telephonic status conference and directed the parties to meet and confer to determine whether a stipulation could be reached resolving Plaintiff's motion to modify the Scheduling Order. (Doc. 21.)

         On July 8, 2019, the Court issued an amended order partially granting the parties' stipulation to modify the Scheduling Order. The Order extended the expert disclosure deadline to July 31, 2019, the supplemental expert disclosure deadline to August 17, 2019, the non-expert discovery cutoff to August 23, 2019, and the expert discovery cutoff to September 26, 2019. (Doc. 24 at 3.)

         On October 15, 2019, Plaintiff filed a motion to permit the filing of a first amended complaint, to resolve an outstanding discovery dispute, and to modify the scheduling order. (Doc. 29.) The Court determined that the motion did not comply with this Court's Local Rules and should not consolidate multiple issues in a single motion. Accordingly, the Court directed Plaintiff to re-notice the matter as two separate motions. (Doc. 30, )

         On October 18, 2019, Plaintiff filed the instant motion to order that Defendant County of Fresno consent to an in-person evaluation of Robert Camarillo by a qualified psychiatrist or neuropsychologist.[2] (Doc. 32.) In his moving papers, Plaintiff reports that Defendants, as part of their expert witness disclosure, submitted a neuropsychological evaluation of Mr. Camarillo by their designated expert, Dr. Howard J. Glidden. Dr. Glidden performed a battery of tests and conducted an extensive interview. Dr. Glidden assertedly concluded that Mr. Camarillo did not have the requisite capacity to consent to having a sexual relationship at this time. Plaintiff indicates that Defendants' expert disclosure stated that Dr. Glidden would opine at trial about Mr. Camarillo's “ability to consent to a relationship with a person who is not his peer; potential adverse effect on the conservatee from a romantic relationship with someone who is not his peer.” (Id. at 3.) Plaintiff contends that these statements indicate that Defendants intend to utilize Dr. Glidden as an attempt to influence the jury against the relationship that Plaintiff had formed with Mr. Camarillo.

         In response to Dr. Glidden's report, Plaintiff's counsel hired a local psychiatrist, Dr. Stuti Bhandari, to evaluate Mr. Camarillo. On July 12, 2019, Plaintiff's counsel informed defense counsel that Plaintiff would be engaging Dr. Bhandari to perform a mental examination. Plaintiff's counsel provided a stipulation for the evaluation to be scheduled before the expert and non-expert discovery cutoff dates, but Defendants rebuffed the stipulation asserting that there was no good cause for the evaluation of Mr. Camarillo. (Id. at 10.) Following meet and confer efforts to resolve the dispute, in August 2019 the parties prepared, but did not file, a Joint Statement re Discovery Dispute Concerning Mental Examination of Conservatee. (Id.) As indicated, Plaintiff now seeks an order compelling Defendant County of Fresno to consent to Mr. Camarillo's examination. Plaintiff claims that with Dr. Glidden's report and proposed expert testimony, Defendants have now put Mr. Camarillo's mental capacity and ability to form certain relationships at issue and Plaintiff therefore should be entitled to an examination in order to respond to Dr. Glidden's report.

         Defendants opposed the motion on November 1, 2019. (Doc. 34.) Defendants report that Dr. Glidden conducted the evaluation of Plaintiff on July 13, 2018, and the report was provided to Plaintiff's former counsel on September 26, 2018. About a year later, on May 31, 2019, Defendants also disclosed Dr. Glidden as an expert under Federal Rule of Civil Procedure 26(a)(2) and provided Plaintiff's current counsel with a copy of Dr. Glidden's report. (Doc. 34 at 4-5, 8; Doc. 34-1, Declaration of Michelle Pepper (“Pepper Decl.”) at ¶¶ 2-3.) After an extension of the discovery deadlines, on July 19, 2019, Plaintiff's counsel requested that Defendants stipulate to a mental evaluation of Mr. Camarillo on July 26, 2019 and August 12, 2019. (Id. at ¶ 4.) Defendants did not believe there was good cause for the evaluation and indicated that Mr. Camarillo would not be produced. On August 5, 2019, Defendants informed Plaintiff's counsel that they were not amenable to the Court's informal procedures to resolve the dispute. (Id.; Doc. 34-2, Ex. B). Defendants now oppose Plaintiff's current request for an examination, arguing, in part, that Plaintiff has not demonstrated good cause to compel a mental examination under Rule 35.


         Rule 35 provides that the court “may order a party whose mental or physical condition ... is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner.” Fed.R.Civ.P. 35(a)(1). “The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.” Id. “The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify ...

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