Ruling
Black Knight Fire Support, Inc. vs. Peterson Holding Company, et al.
Jul 16, 2024 |
22CV-0201274
HOLDING COMPANY, ET AL.
Case Number: 22CV-0201274
Tentative Ruling on Motion for Judgment on the Pleadings. This is a breach of contract case
arising out of maintenance and repair work that Plaintiff alleges it hired Defendants to perform on
a bulldozer in 2020. Defendants move for judgment on the pleadings, on the grounds that the First
Amended Complaint fails to state facts sufficient to constitute a cause of action against Defendants
Peterson Holding Company and Peterson Tractor Company. Plaintiff opposes the motion.
Meet and Confer: Before filing a motion for judgment on the pleadings, moving party's counsel
must meet and confer, in person or by telephone, with counsel for the party who filed the pleading
subject to the judgment on the pleadings motion “for the purpose of determining if an agreement
can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.”
CCP § 439(a). Here, the Declaration of Paul Meidus attaches as Exhibit A a “Meet and Confer”
email he sent to Plaintiff’s counsel midday on May 21, 2024. Mr. Meidus’s Declaration states that
as of the date of the filing, he had not received a response from counsel. The instant Motion was
filed May 22, 2024. The Court’s Order dated June 17, 2024, noted that this was not a good faith
effort to meet and confer, and ordered Defendant to file a supplemental declaration regarding
additional efforts to determine if an agreement could be reached, no later than July 9, 2024. No
such declaration has been filed. Defendant has not adequately met and conferred as required by
CCP § 439(a). Defendant was also ordered to file proper proof of service of the motion, as none
had been previously filed. Defendant did not do so.
Timeliness of Motion: CCP 438(e): No motion may be made pursuant to this section if a pretrial
conference order has been entered pursuant to Section 575, or within 30 days of the date the action
is initially set for trial, whichever is later, unless the court otherwise permits. Here, it appears no
pretrial conference order has been entered. However, the date the action was initially set for trial
was November 28, 2023. That date has long passed, and the parties have sought and received two
continuances of the trial date since then. The parties have participated in a mandatory settlement
conference, and have engaged in motion practice including on discovery issues. As Defendants
argue, the motion is untimely under CCP 438(e). Despite the time limitation imposed by CCP
438(e), which was codified in 1994, Courts have since held that a nonstatutory motion for
judgment on the pleadings survives without the time limitation. “A motion for judgment on the
pleadings may be made at any time either prior to the trial or at the trial itself.” Stoops v. Abbassi
(2002) 100 CA4th 644, 650.
Request for Judicial Notice: Pursuant to Evid. Code §§ 452 and 453, the Court GRANTS
Defendants’ request for judicial notice of the Complaint and First Amended Complaint.
Merits: A motion for judgment on the pleadings has the same function as a general demurrer but
is made after the time for demurrer has expired. Except as provided by CCP § 438, the rules
governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 CA4th 995, 999;
Templo v. State of Calif. (2018) 24 CA5th 730, 735 (motion for judgment on the pleadings is
equivalent to a demurrer). The grounds for a motion for judgment on the pleadings must appear
on the face of the challenged pleading or be based on facts the court may judicially notice. CCP
§ 438(d); Tung v. Chicago Title Co. (2021) 63 CA5th 734, 758-759.
The First Amended Complaint (“FAC”) filed October 26, 2023, is the operative pleading.
Defendants named in the caption include Peterson Holding Company, Brian Adams, and Peterson
Tractor Co. The parties stipulated to the amendment of the FAC, which changed Plaintiff’s name
to Black Knight Enterprises (it was formerly Black Knight Fire Support, Inc.). The order on that
stipulation was entered on October 23, 2023. The FAC alleges: Peterson Holding Company and
Peterson Tractor Company (“Peterson”) operate several lines of business, including Peterson-
CAT. (FAC ¶4.) Peterson, as Peterson-CAT, sells Caterpillar brand earthmoving and construction
equipment, and provides maintenance and repair services for such equipment. (FAC ¶4.) Peterson
operates at several locations, including a facility in Redding, County of Shasta, California, which
was where Peterson’s obligations which are the subject of this complaint were to be performed.
(FAC ¶4.) Peterson’s service manager Brian Adams provided a quote for maintenance work which
Plaintiff accepted on December 2, 2020. (FAC ¶ 10.)
The FAC contains numerous further allegations against Peterson. The Court only looks to the face
of the pleadings and matters subject to judicial notice on a motion for judgment on the pleadings.
This is a well-pleaded complaint making allegations that Peterson Holding Company and Peterson
Tractor Company entered into a contract with Plaintiff in 2020 for maintenance work that was
performed. The identity of the correct business entity which is directly liable to Plaintiff may be
Peterson Holding, Peterson Tractor, or Peterson-CAT – but that information is in the control of
the Defendants. The Court notes that on June 24, 2024, this Court granted Plaintiff’s Motions to
Compel Discovery Responses, which had not been provided as required by the CCP, despite
several reasonable extensions granted by Plaintiff. The responses presumably will permit Plaintiff
to amend to add Peterson-CAT as a named defendant if necessary.
On a motion for judgment on the pleadings, as on a demurrer, the court “treat[s] the demurrer as
admitting all material facts properly pleaded, but not contentions, deductions or conclusions of
fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal. App. 4th 435,
438. No matter how unlikely, a plaintiff’s allegations must be accepted as true for the purpose of
ruling on a demurrer. Del. E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d
593, 604. A plaintiff must plead ultimate facts that acquaint the defendant with the nature, source
and extent of plaintiff’s causes of action. Doe v. City of Los Angeles (2007) 42 Cal. 4th 542, 550.
Here, Defendants are clearly aware of the allegations in this matter and the events which gave rise
to them. Defendants are arguing corporate form shields two of the defendants from liability.
Notably, Defendants’ pleading is conspicuously silent as to what the actual corporate relationship
is here, even though that information is within its custody and control. The Motion for Judgment
on the Pleadings is DENIED. No proposed order has been lodged as required by Local Rule
5.17(D). Defendant shall prepare the order.
Ruling
MEREDITH CHERRY, ET AL. VS LOS ANGELES UNIFIED SCHOOL DISTRICT, ET AL.
Jul 19, 2024 |
23BBCV01846
Case Number:
23BBCV01846
Hearing Date:
July 19, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central District
Department B
emerson mikasa
, a minor individual, by and through his Guardian ad Litem, MEREDITH CHERRY,
Plaintiff,
v.
los angeles unified school district,
et al
.,
Defendants.
Case No.:
23BBCV01846
Hearing Date:
July 19, 2024
[
TENTATIVE] order RE:
motion for an order compelling mental examination of Plaintiff
BACKGROUND
A.
Allegations
Plaintiff minor Emerson Mikasa (Plaintiff) alleges that he sustained physical, emotional, and psychological injuries on August 18, 2022
[1]
when he was brutally attacked, assaulted, and bullied by another student H.A.D1 (Assailant) at Dixie Canyon Community Charter, an elementary school under the control, operation, management, and supervision of Defendant Los Angeles Unified School District (LAUSD).
Plaintiff alleges that during school hours, he entered the restroom at or near the schools lunch area and was approached by Assailant, who suddenly and without provocation attacked Plaintiff from behind.
Plaintiff alleges that Assailant grabbed him by the collar, threw him to the floor, and struck his head repeatedly.
Plaintiff alleges 4 other students witnessed the event and ran to get help.
Plaintiff alleges that the event was promptly reported to LAUSD and Defendant Silvia Lopez (LAUSD employee, Lopez) that same day.
Plaintiff alleges that on August 19, 2022, he reported the assault to the Los Angeles Police Department.
On August 21, 2022, Plaintiffs mother, Meredith Cherry, emailed Defendants Lopez, Pamela Damonte (Damonte), and Margery Weller (Weller), as well as several other LAUSD employees/representatives regarding the incident.
The complaint, filed August 10, 2023, alleges causes of action for: (1) negligence; and (2) negligent hiring, retention, supervision, and training.
On September 15, 2023, Plaintiff amended the name for Pamela Demonte to Pamela Damonte.
B.
Motion on Calendar
On May 17, 2024, Defendants LAUSD, Lopez, Damonte, and Weller filed a motion to compel Plaintiff Emerson Mikasa to attend a mental examination conducted by Dr. April Thames on July 22, 2024 at 10:00 a.m. or on a mutually agreeable date and time.
On July 3, 2024, Plaintiff filed an opposition brief.
On July 12, 2024, Defendants filed reply papers.
DISCUSSION
Defendants move to compel Plaintiff to attend a mental examination conducted by Defendants retained psychological expert, Dr. April Thames, Ph.D.
On February 23, 2024, defense counsel sent a letter to Plaintiffs counsel requesting that Plaintiff stipulate to an independent medical examination (mental) of Plaintiff, and Plaintiffs counsel responded by asking defense counsel to clarify the scope of the test and requested that Defendants agree to produce the raw data to Plaintiffs counsel.
On March 1, 2024, defense counsel sent a draft stipulation for an order on Plaintiffs mental examination, but declined to provide the raw data to Plaintiffs counsel.
The parties thereafter met and conferred about the mental examination, whereby the parties agreed that Plaintiff would submit to a physical and mental IME, but the parties still disputed whether the raw data from the IME would be provided to Plaintiffs counsel.
Defendants argue that their counsel followed up with Plaintiffs counsel numerous times regarding the draft stipulation, but did not hear back from Plaintiffs counsel until May 13, 2024 when Plaintiffs counsel again requested that raw data be shared.
Despite meet and confer efforts, the parties were unable to agree upon a stipulation, such that Defendants filed this motion.
The parties do not dispute that Plaintiff will submit to a mental IME.
The only issue between the parties regarding the mental IME is whether Plaintiffs counsel is entitled to the raw data from the examination.
In opposition, Plaintiff relies on
Randys Trucking, Inc. v. Superior Court of Kern County
(2023) 91 Cal.App.5th 818, arguing that the disclosure of raw test data falls within the broad discretion of the superior court.
The Court will consider several relevant cases.
In
Carpenter v. Superior Court
(2006) 141 Cal.App.4th 249, Carpenter argued that he should be provided a copy of test questions and answers after his mental examination.
(
Carpenter
, supra, 141 Cal.App.4th at 271.)
The Court stated that [w]
hile there is no express statutory authority for Carpenter'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.
(
Id.
)
The Court discussed whether copyright protections and ethical issues barred production of the test questions and answers.
With regard to copyright protection, the Court acknowledged that components of the MMPI test have been held protected by copyright law.
(
Id.
at 272.)
Based on the evidence provided, the Court found the evidence was insufficient to support a finding that providing a copy of the test would be a copyright infringement.
(
Id.
at 273.)
The publisher of the MMPI tests is Pearson, Inc. and the publisher of the WAIS tests, CVLT-II, and the Ravens Standard Progressive Matrices is Harcourt Assessment, Inc.
(
Id.
)
The Court found that Pearson and Harcourt both suggested satisfactory means by which the test can be provided after a mental examination, whereby the
test questions and answers may 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 274.)
Next, the Court discussed the examiners ethical and professional duties.
(
Id.
at 275.)
Under the Standards for Educational and Psychological Testing, examiners are responsible for protecting the security of test materials and psychologists have an obligation not to reproduce copyrighted materials (i.e., test items, ancillary forms, scoring templates, conversion tables of raw scores, and tables of norms) for routine test use without consent of the copyright holder.
(
Id.
)
The Court of Appeal remanded this latter issue to the trial court.
In
Roe v. Superior Court
(2015) 243 Cal.App.4th 138
, the plaintiff sought copies of the written questions and her responses from her mental examination.
In the trial court proceedings, the defendant argued that the examiner objected to the production of testing materials because they were subject to copyright law and defendant sought a protective order in the event the trial court ordered disclosure of the materials.
(
Roe
, supra, 243 Cal.App.4th at 146.)
The trial court ordered the doctor to comply with the statutory language of CCP § 2032.610, stated that the parties should wait and see how the examiner would comply, and told the parties to bring a subsequent motion if they believed she failed to comply with section 2032.610; the order did not mention copyright law.
(
Id.
at 147.)
Plaintiff argued that section 2032.610 implied the production of written testing materials and her answers by analogizing the section to Penal Code, § 1054.3(a)(1), which provides for the results of physical or mental examinations, which defendant intends to offer in evidence at trial. (
Id.
)
However, the Court held that there was no legislative history supporting any finding that this would include raw data.
(
Id.
)
The Court of Appeal found that plaintiffs undeveloped analyses that results of all tests made as stated in CCP § 2032.610 required defendants to deliver the written testing materials and plaintiffs raw answers.
(
Id.
at 149.)
In
Randys Trucking
, the trial court had granted the defendants motion to compel the mental examination of plaintiff and ordered defendants neuropsychologist to transfer raw data and an audio recording of the examination to plaintiffs counsel subject to a protective order.
(
Randys Trucking
, supra, 91 Cal.App.5th at 824.)
The Court of Appeal acknowledged that while there was no statutory authority precluding a trial court from ordering the disclosure of test materials or data when ordering a mental IME, there was also not authority precluding a trial court from exercising its discretion to bar the disclosure of the written test questions and answers.
(
Id.
at 834 [
citing
Carpenter
].)
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 itand this discretion was based on the trial courts broad discretion in discovery matters.
(
Id.
at 835.)
The Court of Appeal discussed both
Carpenter
and
Roe
and found:
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.
(
Id.
at 837.)
The Court of Appeal considered the doctors concerns about producing raw data, but noted that the doctor had not explained why a protective order would not ameliorate those dangers.
(
Id.
)
The Court weighed this against plaintiffs right to take discovery and cross-examine defendants expert witnesses and determined that [w]ithout the raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the
neuropsychologist's opinion.
(
Id.
at 838.)
Standards 9.04 and 9.11 of the APA Ethical Standards state:
9.04 RELEASE OF TEST DATA
(a) The term test
data
refers to 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. Those portions of test materials that include client/patient responses are included in the definition of
test data
. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law. (See also Standard 9.11, "Maintaining Test Security.")
(b) In the absence of a client/patient release, psychologists provide test data only as required by law or court order.
9.11 MAINTAINING TEST SECURITY
The term
test materials
refers to manuals, instruments, protocols, and test questions or stimuli and does not include
test data
as defined in Standard 9.04, Release of Test Data. 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.
(APA Ethical Standards, Standards 9.04 and 9.11.)
As summarized by the Court in
Randys Trucking
:
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 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.
(
Randys Trucking
, supra, 91 Cal.App.5th at 827.)
Based on
Carpenter, Roe
, and
Randys Trucking
, the Court declines to grant the motion outright, and thus it will not order the production of the raw data to Plaintiffs counsel without a protective order.
The motion will be granted subject to the parties entering into a protective order.
As indicated by
Carpenter
, the parties to this litigation are not the copyright holders of the administered tests.
Rather, the copyright holders are the publishers of the tests themselves.
According to
Carpenter
, every effort should be made to restrict access to the materials and testimony regarding the materials to the most limited audience possible, and preferably only to those individuals who are professionally qualified to use and interpret the tests; restrict copying of the test materials; restrict use of the test materials to only to that required for the resolution of the lawsuit; require prompt return and destruction of any copies made of the material at the conclusion of the proceedings, and sealing the record to the extent any portion of the materials are disclosed in pleadings, testimony, exhibit, or any other documents available for public inspection.
(See
Carpenter
, supra, 141 Cal.App.4th at 274.)
Here, entering into a protective order to protect against the public dissemination of the information should sufficiently guard against any copyright concerns.
In her declaration, Dr. Thames states that psychologists do not release raw test data forms, audio recordings of testing, or narrative reports and score summaries to non-psychologists and that she would be willing to exchange raw data to Plaintiffs psychological expert only, who is bound by the same ethical and legal duties as her.
(Thames Decl., ¶7.)
Dr. Thames expresses her concerns that the maintenance of test security will be compromised and would negatively affect the scientific value of psychological evaluations if they are disseminated.
(
Id.
, ¶¶9-10.)
She also opines that Plaintiffs counsel do not need raw data to cross-examine a psychological expert and that a protective order would not afford sufficient protection as counsel could later use the information learned in this case to coach current and future clients.
(
Id.
, ¶¶13-14.)
Dr. Thames states that attorneys lack the professional training and experience to evaluate raw testing and audio recording data and thus she will not agree to releasing raw test data or audio recording of Plaintiff.
(
Id.
, ¶¶18-19.)
Dr. Thames states that if the Court is inclined to order that raw testing and audio recording be transmitted to Plaintiffs counsel, she will recuse herself from the case.
(
Id.
, ¶20.)
Defendants argue that they will be prejudiced if Dr. Thames is forced to recuse herself, as they would not have an expert prior to the preferentially set September 16, 2024 trial date.
(Reply at p.2.)
As discussed above, trial courts have discretion to allow the production of raw test data and audio recordings of mental IMEs.
While Dr. Thames has particular concerns about test security, the Court finds that a protective order will adequately protect against such concerns.
Further, the
Randy Trucking
court recognized Dr. Thames similar concerns that counsel cannot evaluate test materials: W
hile 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.
(
Id.
at 838.)
Thus, the Court will grant the motion such that the data should be produced subject to a protective order.
The protective order shall include the following terms:
(1)
Confidential test materials shall be released only to professionally qualified individuals who are able to obtain, use, and interpret them, as well as counsel in this matter
for the purposes of cross-examination of Defendants retained experts
.
(2)
The parties and counsel are prohibited from making copies of proprietary test materials in order to protect the copyright holders rights in the material.
(3)
Copyrighted test materials shall not be made public or distributed to any other persons, other than qualified experts.
(4)
The record shall be sealed to the extent any portion of the test materials are disclosed in pleadings,
testimony, exhibit, or any other documents available for public inspection.
(5)
Any copy of the material shall be promptly returned to Defendants and destroyed at the conclusion of the proceedings.
The Court finds that entering into a protective order and sealing documents will prevent the unlawful disclosure of test materials and protect Dr. Thames (or any other retained defense examiner) from engaging in any unethical practice.
Defendants request sanctions in the amount of $2,700 against Plaintiff and his counsel of record.
In light of the ruling on the motion, the Court declines to award sanctions on this motion.
CONCLUSION AND ORDER
Defendants motion to compel Plaintiff Emerson Mikasa to attend a mental examination conducted by Dr. April Thames on July 22, 2024 at 10:00 a.m. or on a mutually agreeable date and time is granted, subject to the parties entering a protective order.
Defendants mental examiner shall be ordered to produce
all test materials, the raw data of Plaintiffs administered tests, and documents, medical records, and audio recordings relied upon by the mental examiner in reaching his conclusions in the report subject to a protective order.
The protective order shall be entered as follows:
(1)
Confidential test materials shall be released only to professionally qualified individuals who are able to obtain, use, and interpret them, as well as counsel in this matter for the purposes of cross-examination of Defendants retained experts.
(2)
The parties and counsel are prohibited from making copies of proprietary test materials in order to protect the copyright holders rights in the material.
(3)
Copyrighted test materials shall not be made public or distributed to any other persons, other than qualified experts.
(4)
The record shall be sealed to the extent any portion of the test materials are disclosed in pleadings,
testimony, exhibit, or any other documents available for public inspection.
(5)
Any copy of the material shall be promptly returned to Defendant and destroyed at the conclusion of the proceedings.
No sanctions will be awarded.
Defendant shall give notice of this order.
DATED:
July 19, 2024
___________________________
John J. Kralik
Judge of the Superior Court
[1]
Paragraph 13 alleges that the incident occurred on August 18, 2023.
However, different parts of the complaint alleges that the incident occurred on August 18, 2022.
The Court will consider the 2022 date as the date of injury as the complaint was filed on August 10, 2023 (which was before the alleged August 18, 2023 incident date).
