United States District Court, C.D. California
Present: The Honorable KENLY KIYA KATO, UNITED STATES
(In Chambers) Order Granting Defendants' Motion to Compel
Mental Examination of Plaintiff Karina Nunez [Dkt.
October 30, 2019, Defendants Keurig Dr. Pepper, Inc.
(“KDP”) and Motts, LLP (“Motts”)
(collectively, “Defendants”) filed a Motion to
Compel (“Motion”) seeking to compel a mental
examination of Plaintiff Karina Nunez
(“Plaintiff”). Dkt. 31. The parties filed a Joint
Stipulation pursuant to Local Rule 37-2 setting forth their
positions. Dkt. 32. Defendants argue Plaintiff has put her
mental health “in controversy” and there is good
cause for the mental examination. Plaintiff argues she is
seeking only “garden variety” emotional damages
and a mental examination is, therefore, not warranted. For
the reasons set forth below, Defendants' Motion is
November 29, 2018, Plaintiff initiated this lawsuit in San
Bernardino County Superior Court against Defendant KDP
alleging causes of action for (1) Retaliation (Labor Code
§ 1102.5); (2) Wrongful Termination in Violation of
Public Policy; (3) Sexual Harassment (Gov. Code §
12940(j)); and (4) Failure to Prevent Sexual Harassment (Gov.
Code §12940(k)). ECF Docket No. (“Dkt.”)
4-1. On January 2, 2019, defendant KDP removed the action to
this Court. Dkt. 1.
January 22, 2019, defendant KDP propounded initial written
discovery on Plaintiff. Dkt. 31-1 at 3-5, Declaration of
Amber L. Roller (“Roller Decl.”), ¶ 2. On
February 20, 2019, Plaintiff served verified responses to
Defendant KDP. Id. In her responses to
Interrogatories Nos. 16 and 17, Plaintiff states she is
seeking approximately $61, 022.00 in past and future lost
wages and $200, 000.00 in emotional distress damages.
Id., Ex. 1.
March 15, 2019, Plaintiff filed a First Amended Complaint
(“FAC”) against both Defendants alleging the same
causes of action. Dkt. 16. Plaintiff alleges she was
unlawfully terminated by Defendants from her employment for
reporting sexual harassment. Id., ¶¶
10-25. Plaintiff alleges, “The unlawful harassment and
termination caused Plaintiff mental and emotional distress
including anxiety, stress, depression, shame, embarrassment,
and humiliation.” Id., ¶ 24. Plaintiff
alleges her “damages include, but are not limited to,
loss of earnings and benefits, humiliation, embarrassment,
severe mental and emotional distress and discomfort.”
Id., ¶ 32. In addition, Plaintiff alleges
“[a]s a direct, foreseeable, and proximate result of
Defendants' acts, Plaintiff . . . has suffered and
continues to suffer humiliation, embarrassment, mental and
emotional distress, and discomfort, all to Plaintiff's
damage in an amount to be proven at trial, but which are in
excess of the minimum jurisdiction of this court.”
Id., ¶¶ 38, 43, 50.
April 5, 2019, Defendants filed an Answer to the FAC. Dkt.
April 15, 2019, the Court issued a Civil Trial Scheduling
Order setting a fact discovery cut-off date of December 2,
2019. Dkt. 21.
September 26, 2019, Defendants deposed Plaintiff. Roller
Decl., ¶ 3, Ex. 2 (excerpts from Plaintiff's
deposition). At her deposition, Plaintiff disclosed that, in
June 2019, she sought counseling for emotional distress she
attributed to Defendants' alleged wrongful conduct and
the recent deaths of her brother-in-law and god-daughter.
Id., Ex. 2 at depo. 130:8-20, 132:22-134:7;
136:17-25. Plaintiff explained the doctor she saw in June
2019 was her first and only visit to a doctor for mental
health issues and she did not attend the therapy he
recommended. Dkt. 31-7, Declaration of Mitchell J. Murray
(“Murray Decl.”), ¶ 2, Ex. 1 (excerpts from
Plaintiff's deposition) at 131:9-22. Plaintiff stated her
depression began about a month after her termination and
stated she was “more depressed” at the time of
her deposition. Roller Decl., Ex. 2 at depo. 139:15-21.
October 9, 2019, Defendants' counsel requested that
Plaintiff stipulate to a mental examination. Roller Decl.,
¶ 4. On October 15, 2019, Plaintiff's counsel sent
Defendants' counsel an email stating Plaintiff would not
stipulate to a mental examination. Id., Ex. 3.
October 28, 2019, the Court granted the parties'
stipulation to continue the expert discovery cut-off to
January 31, 2020. Dkt. 30.
October 30, 2019, Defendants filed the instant Motion seeking
to compel a mental examination of Plaintiff along with a
Joint Stipulation pursuant to Local Rule 37-2 setting forth
the parties' respective positions. Dkt. 31, Mot.; Dkt.
32, JS. Defendants seek to have Plaintiff examined by Dr.
Judy Ho, a licensed psychologist,  and that the examination
consist of “a detailed clinical interview and mental
status examination, a review of medical records, and the
administration of appropriate generally accepted standardized