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1 LEWIS BRISBOIS BISGAARD & SMITH LLP
JOSEPH R. LORDAN, SB# 265610
2 E-Mail: Joseph.Lordan@lewisbrisbois.com ELECTRONICALLY
ALLISON L. CARDENAS, SB# 272924
3 E-Mail: Allison.Cardenas@lewisbrisbois.com FILED
SUMY KIM, SB# 290082 Superior Court of California,
County of San Francisco
4 E-Mail: Sumy.Kim@lewisbrisbois.com
KAA BAO YANG, SB# 302155 07/14/2022
Clerk of the Court
5 E-Mail: KaaBao.Yang@lewisbrisbois.com BY: RONNIE OTERO
CIARA M. DINEEN, SB# 319913 Deputy Clerk
6 E-Mail: Ciara.Dineen@lewisbrisbois.com
444 Bush Street, Suite 1100
7 San Francisco, California 94104-2872
Telephone: 415.362.2580
8 Facsimile: 415.434.0882
9 Attorneys for Defendants
EUROMOTORS, INC. DBA MERCEDES-
10 BENZ OF SAN FRANCISCO and DARIN
11 SPARROW
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
FOR THE COUNTY OF SAN FRANCISCO
14
15
LUKMAN DOTSON; ADEAJAI DOTSON; CASE NO. CGC-20-587463
16 and ALI HABIBVAND,
EX PARTE APPLICATION FOR AN
17 Plaintiffs, ORDER TO SEAL CONFIDENTIAL
INFORMATION IN DEFENDANTS’
18 vs. MOTION FOR LEAVE OF COURT TO
REQUIRE PLAINTIFFS TO SUBMIT TO
19 EUROMOTORS, INC. DBA MERCEDES- AN INDEPENDENT MENTAL
BENZ OF SAN FRANCISCO, a California EXAMINATION
20 corporation; DARIN SPARROW, an
individual; and DOES 1-20, inclusive, Date: July 15, 2022
21 Time: 11:00 AM
Defendants. Dept.: 302
22
Action File: November 3, 2020
23 Trial Date: September 7, 2022
24 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
25 PLEASE TAKE NOTICE that on July 15, 2022, at 11:00 a.m., or as soon thereafter as
26 counsel may be heard in Department 302 of the above-entitled Court located at 400 McAllister
27 Street, San Francisco, CA 94102, Defendants EUROMOTORS, INC. DBA MERCEDES-BENZ
28
LEWIS 4892-4095-1081.1 1
BRISBOIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’
BISGAARD MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL
& SMITH LLP
ATTORNEYS AT LAW EXAMINATION
1 OF SAN FRANCISCO and DARIN SPARROW (collectively, “Defendants”) will move the Court
2 on an ex parte basis, to request the Court to enter an Order sealing (1) page 6, lines 14-15, 21-22,
3 and page 7, lines 2-3, of Defendants Memorandum of Points and Authorities in Support of its
4 Motion for Leave of Court to Require Plaintiffs Submit to an Independent Mental Examination,
5 and Request for Sanctions (“Motion”); (2) page 3, lines 11-12, 18-19, 27, and page 3, line 1, of the
6 Declaration of Sumy Kim in support of the Motion (the “Confidential Portions”). This ex parte
7 application is made pursuant to Rules 2.550(d) and 2.551 of the California Rules of Court, the
8 Parties Stipulated Protective Order, and on the grounds that the contents of the Confidential
9 Portions of Defendants’ papers disclose privileged physician-patient and psychotherapist-patient
10 communications and should be kept confidential. Good cause exists for granting the ex parte
11 relief as:
12 1. Plaintiffs have an overriding interest in maintaining the confidentiality of
13 privileged physician-patient and psychotherapist-patient communications which overcome the
14 right of public access to the records;
15 2. This overriding interest supports sealing the record;
16 3. A substantial probability exists that the overriding interest will be prejudiced if the
17 record is not sealed;
18 4. No less restrictive means exist to achieve Defendants’ overriding interest in sealing
19 the record;
20 5. The proposed sealing is narrowly tailored.
21 This Ex-Parte Application is based on the attached Memorandum of Points and
22 Authorities, the Declaration of Sumy Kim, all pleadings and papers in the Court file, and upon all
23 oral and documentary evidence before the Court for consideration on the date of this Application.
24 Notice of this ex parte hearing was given to all counsel and parties in accordance with California
25 Rules of Court, rule 3.1203(a), as set forth in the accompanying Declaration of Sumy Kim.
26 //
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LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’
BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL
BISGAARD EXAMINATION
& SMITH LLP
ATTORNEYS AT LAW
1 DATED: July 14, 2022 LEWIS BRISBOIS BISGAARD & SMITH LLP
2
3
By:
4 Sumy Kim
Attorneys for Defendants EUROMOTORS, INC.
5 DBA MERCEDES-BENZ OF SAN FRANCISCO
and DARIN SPARROW
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LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’
BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL
BISGAARD EXAMINATION
& SMITH LLP
ATTORNEYS AT LAW
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This action arises out of Plaintiffs LUKMAN DOTSON, ADEAJAI DOTSON, and ALI
4 HABIBVAND’s employment with Defendant EUROMOTORS, INC. DBA MERCEDES-BENZ
5 OF SAN FRANCISCO (“Defendant”). Based on allegations that Plaintiffs ADEAJAI DOTSON,
6 and ALI HABIBVAND (“Plaintiffs”) suffered severe emotional distress by their employer,
7 Defendant sought to take the mental examination of Plaintiffs. Plaintiffs objected to the
8 examination, and Defendant filed a Motion for Leave of Court to Require Plaintiffs Submit to an
9 Independent Mental Examination, and Request for Sanctions (“Motion”) on July 13, 2022.
10 Defendant now moves ex parte to request the Court to enter an Order sealing portions of
11 the Memorandum of Points and Authorities (“MPA”) and Declaration of Sumy Kim (“Kim
12 Decl.”) to the Motion that reference Plaintiffs’ privileged physician-patient and psychotherapist-
13 patient communications.
14 II. GOOD CAUSE EXISTS TO HEAR THIS ISSUE ON AN EX PARTE BASIS
15 California Rules of Court, rule 3.1201 provides in pertinent part as follows:
16 “A request for ex parte relief must be in writing and must include all of the
following:
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* * *
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(2) A declaration in support of the application making the factual showing required
19 under 3.1202(c).
20 * * *
21 (c) An applicant must make an affirmative factual showing in a declaration
containing competent testimony based on personal knowledge of irreparable harm,
22 immediate danger, or any other statutory basis for granting relief ex parte.”
23 Defendant seeks an Order to seal limited confidential information in connection with their
24 pending Motion. Good cause exists to grant the instant ex parte application inasmuch as
25 Defendant was required to rely on Plaintiffs’ privileged physician-patient and psychotherapist-
26 patient communications as evidence in its Motion to demonstrate good cause for the examination
27 and appropriateness of the scope of the demand. However, filings with the Court are made
4892-4095-1081.1 4
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LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’
BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL
BISGAARD EXAMINATION
& SMITH LLP
ATTORNEYS AT LAW
1 available to the public and accessible online. Accordingly, ex parte relief is proper. [Declaration
2 of Sumy Kim at ¶ 2.]
3 III. THE COURT IS EMPOWERED TO GRANT THIS APPLICATION TO SEAL
4 California Rules of Court 2.550-2.585 apply to records sealed or proposed to be sealed by
5 court order. (California Rules of Court 2.550(a)(1).) The rules apply to discovery materials that
6 are used at trial or submitted as a basis for adjudication of matters other than discovery motions or
7 proceedings. (California Rules of Court 2.550(a)(2).) The court may order that a record be filed
8 under seal (or sealed) only if it expressly finds facts that establish:
9 - There is an overriding interest that overcomes the right of public access to the
10 record;
11 - The overriding interest supports sealing the record;
12 - A substantial probability exists that the overriding interest will be prejudiced if the
13 record is not sealed;
14 - The proposed sealing is narrowly tailored; and
15 - No less restrictive means exist to achieve the overriding interest.
16 (California Rules of Court 2.550(d)(1)-(5)
17 California Rules of Court 2.550(d)-(e) is derived from NBC Subsidiary (KNBC-TV), Inc. v.
18 Superior Court (1999) 20 Cal.4th 1178, 1217, which held a court must find an “overriding
19 interest” that supports the closure or sealing, and must make certain express findings. The
20 decision notes that the First Amendment right of access applies to records filed in both civil and
21 criminal cases as a basis for adjudication. (Id. at p. 1208 [fn. 25].) Thus, the NBC Subsidiary test
22 applies to the sealing of records. (See Adv. Comm. Comment to Cal. Rules of Court, rule 2.550.)
23 Information transmitted between a psychotherapist and a patient in the course of the
24 therapeutic relationship is privileged unless its disclosure is authorized under a statute creating an
25 exception to the privilege or the privilege is waived. (Evidence Code §§ 1012, 1014; Menendez v.
26 Superior Court (1992) 3 Cal.4th 435, 449.) Further, the confidentiality of communications
27 between patients and their psychotherapists does not depend solely on the statutory privilege
4892-4095-1081.1 5
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LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’
BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL
BISGAARD EXAMINATION
& SMITH LLP
ATTORNEYS AT LAW
1 created by the Evidence Code. These communications are also independently protected by the
2 constitutional right of privacy under the federal and state constitutions. (People v. Hammon
3 (1997) 15 Cal.4th 1117, 1127; Kirchmeyer v. Phillips (2016) 245 Cal.App.4th 1394, 1403; San
4 Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1095.) Accordingly, the
5 information Defendant seeks to seal pertains to protecting a constitutional right to privacy for
6 Plaintiffs.
7 Furthermore, the proposed sealing is narrowly tailored as Defendant only requests the
8 Court to enter an Order sealing (1) page 6, lines 14-15, 21-22, and page 7, lines 2-3, of the MPA;
9 (2) page 3, lines 11-12, 18-19, 27, and page 3, line 1, of the Kim Decl. (the “Confidential
10 Portions”). [Declaration of Sumy Kim at Exhibit A.] 1
11 In addition, the parties to this action have entered into a Stipulation and Protective Order,
12 which governs the confidentiality of the documents produced in this case, and the information
13 provided in the Confidential Portions were derived from medical records which Plaintiffs
14 designated as CONFIDENTIAL. [Declaration of Sumy Kim at Exhibit B.]
15 Therefore: (1) Plaintiffs’ privilege and right to privacy is an overriding interest that
16 overcomes the right of the public to access the Motion because by allowing public access
17 Plaintiffs’ rights will likely be violated; (2) protecting Plaintiffs from this violation of their
18 privilege and rights is an overriding interest which supports sealing the record; (3) if the Motion is
19 not sealed Plaintiffs’ rights will likely be prejudiced; (4) the proposed sealing is narrowly tailored
20 to the single Motion; and (5) no less restrictive means exist as the basis of the Motion requires
21 discussion of the privileged information. On these bases, good cause exist to grant this
22 application.
23 V. PROPER NOTICE OF THE INSTANT APPLICATION HAS BEEN GIVEN
24 An ex parte application requires notice to the opposing party or counsel by 10:00 a.m. the
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1
26 For the sake of brevity, the exhibits to the Kim Decl. in Support of the Motion were not attached
to this ex parte given they are 80+ pages and there are no redactions to be made therein.
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LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’
BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL
BISGAARD EXAMINATION
& SMITH LLP
ATTORNEYS AT LAW
1 court day prior to the ex parte appearance. California Rules of Court Rule 3.1203(a). As set forth
2 in the Kim Decl., all counsel were notified of this ex parte Application by electronic mail on June
3 30, 2020, at least a court day prior to the ex parte hearing in accordance with California Rule of
4 Court 3.1203(a.) [Kim Decl. at ¶ 5.] Thus, proper notice of the ex parte hearing was given.
5 VI. CONCLUSION
6 Based on the foregoing, Defendant respectfully requests the Court grant the Ex Parte
7 Application to Seal Records, replace the currently filed MPA and Declaration with the redacted
8 versions attached, and issue an order that the undredacted versions of the Motion described herein
9 remain under seal in the Court’s files.
10
11 DATED: July 14, 2022 LEWIS BRISBOIS BISGAARD & SMITH LLP
12
13
By:
14 Sumy Kim
Attorneys for Defendants EUROMOTORS, INC.
15 DBA MERCEDES-BENZ OF SAN FRANCISCO
and DARIN SPARROW
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LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’
BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL
BISGAARD EXAMINATION
& SMITH LLP
ATTORNEYS AT LAW
1 DECLARATION OF SUMY KIM
2 I, Sumy Kim, declare as follows:
3 1. I am an attorney duly admitted to practice in all of the courts of the State of
4 California and I am a Partner at Lewis Brisbois Bisgaard & Smith LLP, attorneys of record for
5 Defendants EUROMOTORS, INC. DBA MERCEDES-BENZ OF SAN FRANCISCO and
6 DARIN SPARROW (collectively, “Defendants”) in this case. The facts set forth herein are of my
7 own personal knowledge, and if sworn I could and would competently testify thereto.
8 2. Defendants’ Motion to Seal seeks to have protected portions of its Motion for Leave
9 of Court to Require Plaintiffs Submit to an Independent Mental Examination, and Request for
10 Sanctions (“Motion”) sealed/redacted. In seeking leave in its Motion, Defendants was required to
11 rely on Plaintiffs’ privileged physician-patient and psychotherapist-patient communications as
12 evidence in its Motion to demonstrate good cause for the examination and appropriateness of the
13 scope of the demand for mental examination. However, filings with the Court are made available
14 to the public and accessible online, and Plaintiffs’ privacy rights may be violated.
15 3. The proposed sealed version of the Memorandum of Points and Authorities and
16 Declaration of Sumy Kim to the Motion is attached hereto as Exhibit A.
17 4. The parties to this action have entered into a Stipulated Confidentiality Agreement
18 for Entry of Protective Order. See Exhibit B.
19 5. Proper notice of the instant application has been given. On July 14, 2022, I sent e-
20 mails to counsel for all parties before 10 a.m., giving proper ex parte notice. See Exhibit C.
21 I declare under penalty of perjury under the laws of the State of California that the
22 foregoing is true and correct and that this declaration was executed on July 14, 2022, at San
23 Francisco, California.
24
25
26
Sumy Kim
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4892-4095-1081.1 8
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LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’
BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL
BISGAARD EXAMINATION
& SMITH LLP
ATTORNEYS AT LAW
1 CALIFORNIA STATE COURT PROOF OF SERVICE
2 Lukman Dotson, et al. v. Euromotors, Inc., et al.
San Francisco County Superior Court, Case No. CGC-20-587463
3
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
4
At the time of service, I was over 18 years of age and not a party to this action. My business address is 333
5 Bush Street, Suite 1100, San Francisco, CA 94104-2872.
6 On July 14, 2022, I served true copies of the following document(s):
7 EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN
DEFENDANTS’ MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN
8 INDEPENDENT MENTAL EXAMINATION
9 I served the documents on the following persons at the following addresses (including fax numbers and e-
mail addresses, if applicable):
10
Bree A. Ullman Hunter Pyle
11 LAW OFFICE OF BREE A. ULLMAN John J. Darin
1054 Keith Avenue HUNTER PYLE LAW
12 Berkeley, California 94708 428 Thirteenth Street, 11th Floor
Telephone: (425) 318-0708 Oakland, California 94612
13 Email: bree.esq@gmail.com Telephone: (510) 444-4400
Facsimile: (510) 444-4410
14 Attorneys for Plaintiffs Email:
LUKMAN DOTSON hunter@hunterpylelaw.com jdarin@hunterpylelaw.com
15 ADEAJAI DOTSON Tanya Tambling – ttambling@hunterpylelaw.com
ALI HABIBVAND
16 Attorneys for Plaintiffs
LUKMAN DOTSON
17 ADEAJAI DOTSON
ALI HABIBVAND
18
19 The documents were served by the following means:
20 (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties
to accept service by e-mail or electronic transmission, I caused the documents to be sent from e-mail address
21 Jennifer.Marigmen@lewisbrisbois.com to the persons at the e-mail addresses listed above. I did not receive,
within a reasonable time after the transmission, any electronic message or other indication that the
22 transmission was unsuccessful.
23 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and
correct. Executed on July 14, 2022, at San Francisco, California.
24
25
26 JENNIFER MARIGMEN
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4892-4095-1081.1 9
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LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’
BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL
BISGAARD EXAMINATION
& SMITH LLP
ATTORNEYS AT LAW
EXHIBIT A
1 LEWIS BRISBOIS BISGAARD & SMITH LLP
JOSEPH R. LORDAN, SB# 265610
2 E-Mail: Joseph.Lordan@lewisbrisbois.com
ALLISON L. CARDENAS, SB# 272924
3 E-Mail: Allison.Cardenas@lewisbrisbois.com
SUMY KIM, SB# 290082
4 E-Mail: Sumy.Kim@lewisbrisbois.com
KAA BAO YANG, SB# 302155
5 E-Mail: KaaBao.Yang@lewisbrisbois.com
CIARA M. DINEEN, SB# 319913
6 E-Mail: Ciara.Dineen@lewisbrisbois.com
444 Bush Street, Suite 1100
7 San Francisco, California 94104-2872
Telephone: 415.362.2580
8 Facsimile: 415.434.0882
9 Attorneys for Defendants
EUROMOTORS, INC. DBA MERCEDES- PUBLIC FOR FILING - CONTAINS
10 BENZ OF SAN FRANCISCO and DARIN REDACTIONS FROM CONDITIONALLY
11 SPARROW SEALED RECORD
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
FOR THE COUNTY OF SAN FRANCISCO
14
15
LUKMAN DOTSON; ADEAJAI DOTSON; CASE NO. CGC-20-587463
16 and ALI HABIBVAND,
DEFENDANTS’ NOTICE OF MOTION
17 Plaintiffs, AND MOTION FOR LEAVE OF COURT
TO REQUIRE PLAINTIFFS ADEAJAI
18 vs. DOTSON AND ALI HABIBVAND TO
SUBMIT TO AN INDEPENDENT
19 EUROMOTORS, INC. DBA MERCEDES- MENTAL EXAMINATION AND
BENZ OF SAN FRANCISCO, a California REQUEST FOR SANCTIONS;
20 corporation; DARIN SPARROW, an MEMORANDUM OF POINTS AND
individual; and DOES 1-20, inclusive, AUTHORITIES IN SUPPORT THEREOF
21
Defendants. [Filed concurrently Declaration of Sumy
22 Kim; Request for Judicial Notice; Separate
Statement; and [Proposed] Order]
23
Date: August 5, 2022
24 Time: 9:00 AM
Dept.: 301
25
Action File: November 3, 2020
26 Trial Date: September 7, 2022
27
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LEWIS 4881-1424-2089.1
BRISBOIS
BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS
& SMITH LLP
ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS
1 TO ALL PARTIES IN AND THEIR ATTORNEYS OF RECORD HEREIN:
2 PLEASE TAKE NOTICE that on August 5, 2022, at 9:00 AM in Department 301 of the
3 above-entitled court, Defendants EUROMOTORS, INC. DBA MERCEDES-BENZ OF SAN
4 FRANCISCO and DARIN SPARROW (“Defendants”), will and hereby do, move under Section
5 2032.310 of the California Code of Civil Procedure for an order requiring Plaintiffs ADEAJAI
6 DOTSON and ALI HABIBVAND (“Plaintiffs”) to submit to an independent mental examination
7 (“IME”) to be conducted by Dr. Jeff Gould, M.D. at a date/time mutually available for all parties.
8 The IME Defendants seek to compel will be a mental examination limited to testing (including the
9 use of accepted diagnostic instruments and tests) and a forensic psychiatric interview.
10 This Motion is made pursuant to the Code of Civil Procedure sections 2023.010(e),
11 2032.020, 2032.220, 2032.310, and 2032.320. Plaintiffs have placed their mental state at issue in
12 this case. The Motion will be based on this Notice, the attached Memorandum of Points and
13 Authorities, the Declaration of Sumy Kim, Request for Judicial Notice, Separate Statement, the
14 complete files and records of this action, and such other and further matters as may be presented to
15 the court before and at the time of the hearing.
16 PLEASE TAKE FURTHER NOTICE that Defendants also seek sanctions against
17 Plaintiffs and Plaintiffs’ counsel for fees and costs incurred by Defendants in the amount of
18 $4,265 pursuant to Code of Civil Procedure § 2032.240(c) for necessitating this Motion and
19 refusal to comply with a demand for an examination without substantial justification.
20
DATED: July 13, 2022 LEWIS BRISBOIS BISGAARD & SMITH LLP
21
22
23 By:
Sumy Kim
24 Attorneys for Defendants EUROMOTORS, INC.
DBA MERCEDES-BENZ OF SAN FRANCISCO
25 and DARIN SPARROW
26
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LEWIS
BRISBOIS 4881-1424-2089.1 2
BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS
& SMITH LLP
ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS
1 TABLE OF CONTENTS
Page
2
3 I. INTRODUCTION ..................................................................................................................3
4 II. FACTUAL/PROCEDURAL BACKGROUND ....................................................................4
5 A. Plaintiffs Assert that They Have Experienced Severe Emotional Distress ................4
6 B. Discovery Suggests Significant Alternative Stressors ...............................................6
7 C. Defendants’ Efforts to Meet and Confer Without Avail ............................................7
8 III. THE CODE OF CIVIL PROCEDURE REQUIRES PLAINTIFFS TO SUBMIT
TO THE IME .........................................................................................................................7
9
IV. GOOD CAUSE EXISTS BECAUSE PLAINTIFFS HAVE PUT THEIR MENTAL
10 STATE, INCLUDING ALTERNATIVE STRESSORS, AT ISSUE ....................................8
11 V. THE COURT SHOULD GRANT DEFENDANTS’ PROPOSAL FOR THE
SCOPE OF PLAINTIFF’S IME AS IT IS REASONABLE AND LEGALLY
12 COMPLIANT.......................................................................................................................10
13 VI. IF PLAINTIFFS REFUSE TO SUBMIT TO AN IME, PLAINTIFFS SHOULD BE
PRECLUDED FROM SEEKING SPECIFIC EMOTIONAL DISTRESS
14 DAMAGES AGAINST DEFENDANTS AND INTRODUCING EXPERT
TESTIMONY AT TRIAL ....................................................................................................13
15
VII. THE COURT SHOULD REQUIRE PLAINTIFFS AND/OR THEIR COUNSEL
16 TO PAY SANCTIONS FOR THE COSTS AND FEES INCURRED IN
CONNECTION WITH THIS MOTION. .............................................................................13
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VIII. CONCLUSION ....................................................................................................................14
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LEWIS
BRISBOIS 4881-1424-2089.1 1
BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS
& SMITH LLP
ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS
1 TABLE OF AUTHORITIES
2 Page
3
4 CASES
5 Doyle v. Superior Court
(1996) 50 Cal.App.4th 1878 .......................................................................................... 10,11
6
Shapira v. Superior Court
7 (1990) 224 Cal.App.3d 1249, 1256 .................................................................................... 10
8 Vinson v. Super. Ct.
(1987) 43 Cal.3d. 833, 840 ........................................................................................... 10, 11
9
Whitfield v. Superior Court for Los Angeles County
10 (1966) 246 Cal.App.2d 81, 83……………………………………………..………………10
11
FEDERAL STATUTES
12
Code Civ. Proc., § 2017.010 ........................................................................................................... 13
13
Code Civ. Proc., § 2032.020(a) ....................................................................................................... 11
14
Code Civ. Proc., § 2032.020, subdivision (a) ................................................................................. 10
15
Code Civ. Proc., § 2032.210, subdivision (b) ................................................................................. 14
16
Code Civ. Proc., § 2032.310 ........................................................................................................... 13
17
Code Civ. Proc., § 2032.310(a) ....................................................................................................... 11
18
Code Civ. Proc., § 2032.320(a) ....................................................................................................... 11
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Code Civ. Proc., § 2032.320(c) ....................................................................................................... 16
20
Code Civ. Proc., § 2032.320(c)(1) .................................................................................................. 16
21
Code Civ. Proc., § 2032.320(d) ....................................................................................................... 13
22
Code Civ. Proc., §§ 2032.320(c) ..................................................................................................... 16
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Code Civ. Proc., §2032.020(c) ........................................................................................................ 13
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LEWIS
BRISBOIS 4881-1424-2089.1 2
BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS
& SMITH LLP
ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendants EUROMOTORS, INC. DBA MERCEDES-BENZ OF SAN FRANCISCO
4 (“Euromotors”) and DARIN SPARROW (collectively “Defendants”) seek an order compelling
5 Plaintiffs ADEAJAI DOTSON (“Dotson”) and ALI HABIBVAND (“Habibvand”) (“collectively
6 Plaintiffs”) to submit to an Independent Mental Examination (“IME”). This lawsuit arises out of
7 Plaintiffs’ employment with Euromotors wherein they made claims for racial harassment and
8 discrimination, failure to prevent harassment and discrimination, and constructive discharge in
9 violation of public policy. Summarily, Plaintiffs allege that they were subject to a hostile work
10 environment wherein they were harassed with racial slurs and comments, and the alleged racial
11 abuse reached an “apex” when one of the alleged harassers brought a handgun to the dealership.
12 Plaintiffs agreed to consider a stipulation for an IME, but it appears they are now refusing for
13 reasons that remain elusive to Defendants. Following Plaintiffs’ refusal to sign Defendants’
14 proposed Stipulation or engage in any further meet and confer efforts, Defendants now bring the
15 instant motion.
16 Plaintiffs seek emotional distress damages beyond garden variety and thus have placed
17 their mental health at issue. This is apparent in their pleadings, verified discovery responses, and
18 produced medical records. 1 California Code of Civil Procedure requires that Plaintiffs submit to
19 an independent medical examination or agree to limit their damages to those identified in sections
20 2032.320(b) and (c). Defendants believe that either Plaintiffs have little or no emotional injuries,
21 or that alternate stressors caused any and all of their alleged emotional distress. If it is determined
22 that Plaintiffs suffered distress, Defendants have the right to ascertain its severity and determine
23 whether Defendants’ alleged conduct was the cause of the distress or whether it resulted from
24 alternative causes. As such, Defendants must be provided a fair opportunity to determine the
25
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1
Plaintiffs have not yet been deposed as to their emotional distress. Therefore, Defendants
27 respectfully requests that additional evidence may be considered in its reply papers should
material testimony be provided on these issues.
28
LEWIS
BRISBOIS 4881-1424-2089.1 3
BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS
& SMITH LLP
ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS
1 nature, extent, and cause of Plaintiffs’ alleged emotional distress in order to defend against their
2 claims, which it cannot do without a mental IME of Plaintiffs that includes an examination of
3 alternative stressors and preexisting conditions. Accordingly, Defendants respectfully request the
4 Court grant their Motion to Compel Plaintiffs to subject to an IME pursuant to the terms laid out
5 below.
6 II. FACTUAL/PROCEDURAL BACKGROUND
7 A. Plaintiffs Assert that They Have Experienced Severe Emotional Distress
8 In their operative first amended complaint, Plaintiffs Dotson and Habibvand specifically
9 allege they suffered “severe emotional distress” due to Defendants’ conduct. [First Amended
10 Complaint (“FAC”) at paras. 141-142 is attached to the Request for Judicial Notice (“RJN”) at
11 Exhibit A.] They assert that they have been diagnosed with psychiatric injuries and seek “general
12 damages for humiliation, mental anguish and severe emotional distress, according to proof”.
13 [FAC at Request for Relief No. 2 at p. 18 (emphasis added).]
14 Similarly, in Plaintiffs’ verified written discovery responses, Plaintiffs repeatedly state that
15 they have suffered extreme emotional distress:
16 Habibvand’s Discovery Responses
17 • In response to Form Interrogatory-Employment, No. 212.2, which asks Plaintiff to
18 identify each injury he attributes to the adverse employment action and the area of the
19 body affected, he responds: “Responding Party has suffered emotional distress,
20 including but not limited to mental suffering, loss of enjoyment of life, grief,
21 anxiety, and humiliation as a result of Defendants’ conduct. Responding Party has
22 been diagnosed with Acute Stress Disorder, Anxiety Disorder, Generalized
23 Anxiety Disorder, Major Depressive Disorder, Insomnia, and Post-Traumatic
24 Stress Disorder. [Habibvand’s Fourth Amended Verified Responses to Form
25 Interrogatories-Employment Law, Set One (“FI”), No. 212.2, attached as Exh. A to
26 Declaration of Sumy Kim (“Kim Decl.”), ¶ 2 (emphasis added).]
27 • When asked if he still has the above complaints and if so, are they getting better, the
28 same or worse, Plaintiff responds: “Yes, a) Major Depressive Disorder, recurrent
LEWIS
BRISBOIS 4881-1424-2089.1 4
BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS
& SMITH LLP
ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS
1 episode, moderate; Posttraumatic Stress Disorder; Generalized Anxiety Disorder;
2 Obsessive Compulsive Disorder; Insomnia; b) Subsiding; c) Generally subsiding in
3 frequency and duration.” [Id. at FI No. 212.3 (emphasis added).]
4 • Plaintiff also confirmed that he sought medical treatment from nine different medical
5 professionals during the relevant period to the present date and was prescribed
6 medication. [Id. at FI No. 212.4 and 212.5]
7 • Plaintiff also confirmed that his healthcare provider advised him that he would require
8 future/additional treatment for the injuries he attributes to the adverse employment
9 action. [Id. at FI No. 212.7]
10 • Plaintiff claims that his psychological health impacted his ability to minimize lost
11 income, as he claimed that he was unable to pursue employment opportunities on
12 multiple occasions between 2018 and 2021 “due to psychological injuries…” [Id. at FI
13 No. 210.4]
14 Dotson’s Discovery R
Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP JOSEPH R. LORDAN, SB# 265610 2 E-Mail: Joseph.Lordan@lewisbrisbois.com ELECTRONICALLY ALLISON L. CARDENAS, SB# 272924 3 E-Mail: Allison.Cardenas@lewisbrisbois.com FILED SUMY KIM, SB# 290082 Superior Court of California, County of San Francisco 4 E-Mail: Sumy.Kim@lewisbrisbois.com KAA BAO YANG, SB# 302155 07/14/2022 Clerk of the Court 5 E-Mail: KaaBao.Yang@lewisbrisbois.com BY: RONNIE OTERO CIARA M. DINEEN, SB# 319913 Deputy Clerk 6 E-Mail: Ciara.Dineen@lewisbrisbois.com 444 Bush Street, Suite 1100 7 San Francisco, California 94104-2872 Telephone: 415.362.2580 8 Facsimile: 415.434.0882 9 Attorneys for Defendants EUROMOTORS, INC. DBA MERCEDES- 10 BENZ OF SAN FRANCISCO and DARIN 11 SPARROW 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN FRANCISCO 14 15 LUKMAN DOTSON; ADEAJAI DOTSON; CASE NO. CGC-20-587463 16 and ALI HABIBVAND, EX PARTE APPLICATION FOR AN 17 Plaintiffs, ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’ 18 vs. MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO 19 EUROMOTORS, INC. DBA MERCEDES- AN INDEPENDENT MENTAL BENZ OF SAN FRANCISCO, a California EXAMINATION 20 corporation; DARIN SPARROW, an individual; and DOES 1-20, inclusive, Date: July 15, 2022 21 Time: 11:00 AM Defendants. Dept.: 302 22 Action File: November 3, 2020 23 Trial Date: September 7, 2022 24 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 25 PLEASE TAKE NOTICE that on July 15, 2022, at 11:00 a.m., or as soon thereafter as 26 counsel may be heard in Department 302 of the above-entitled Court located at 400 McAllister 27 Street, San Francisco, CA 94102, Defendants EUROMOTORS, INC. DBA MERCEDES-BENZ 28 LEWIS 4892-4095-1081.1 1 BRISBOIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’ BISGAARD MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL & SMITH LLP ATTORNEYS AT LAW EXAMINATION 1 OF SAN FRANCISCO and DARIN SPARROW (collectively, “Defendants”) will move the Court 2 on an ex parte basis, to request the Court to enter an Order sealing (1) page 6, lines 14-15, 21-22, 3 and page 7, lines 2-3, of Defendants Memorandum of Points and Authorities in Support of its 4 Motion for Leave of Court to Require Plaintiffs Submit to an Independent Mental Examination, 5 and Request for Sanctions (“Motion”); (2) page 3, lines 11-12, 18-19, 27, and page 3, line 1, of the 6 Declaration of Sumy Kim in support of the Motion (the “Confidential Portions”). This ex parte 7 application is made pursuant to Rules 2.550(d) and 2.551 of the California Rules of Court, the 8 Parties Stipulated Protective Order, and on the grounds that the contents of the Confidential 9 Portions of Defendants’ papers disclose privileged physician-patient and psychotherapist-patient 10 communications and should be kept confidential. Good cause exists for granting the ex parte 11 relief as: 12 1. Plaintiffs have an overriding interest in maintaining the confidentiality of 13 privileged physician-patient and psychotherapist-patient communications which overcome the 14 right of public access to the records; 15 2. This overriding interest supports sealing the record; 16 3. A substantial probability exists that the overriding interest will be prejudiced if the 17 record is not sealed; 18 4. No less restrictive means exist to achieve Defendants’ overriding interest in sealing 19 the record; 20 5. The proposed sealing is narrowly tailored. 21 This Ex-Parte Application is based on the attached Memorandum of Points and 22 Authorities, the Declaration of Sumy Kim, all pleadings and papers in the Court file, and upon all 23 oral and documentary evidence before the Court for consideration on the date of this Application. 24 Notice of this ex parte hearing was given to all counsel and parties in accordance with California 25 Rules of Court, rule 3.1203(a), as set forth in the accompanying Declaration of Sumy Kim. 26 // 27 4892-4095-1081.1 2 28 LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’ BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL BISGAARD EXAMINATION & SMITH LLP ATTORNEYS AT LAW 1 DATED: July 14, 2022 LEWIS BRISBOIS BISGAARD & SMITH LLP 2 3 By: 4 Sumy Kim Attorneys for Defendants EUROMOTORS, INC. 5 DBA MERCEDES-BENZ OF SAN FRANCISCO and DARIN SPARROW 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 4892-4095-1081.1 3 28 LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’ BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL BISGAARD EXAMINATION & SMITH LLP ATTORNEYS AT LAW 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 This action arises out of Plaintiffs LUKMAN DOTSON, ADEAJAI DOTSON, and ALI 4 HABIBVAND’s employment with Defendant EUROMOTORS, INC. DBA MERCEDES-BENZ 5 OF SAN FRANCISCO (“Defendant”). Based on allegations that Plaintiffs ADEAJAI DOTSON, 6 and ALI HABIBVAND (“Plaintiffs”) suffered severe emotional distress by their employer, 7 Defendant sought to take the mental examination of Plaintiffs. Plaintiffs objected to the 8 examination, and Defendant filed a Motion for Leave of Court to Require Plaintiffs Submit to an 9 Independent Mental Examination, and Request for Sanctions (“Motion”) on July 13, 2022. 10 Defendant now moves ex parte to request the Court to enter an Order sealing portions of 11 the Memorandum of Points and Authorities (“MPA”) and Declaration of Sumy Kim (“Kim 12 Decl.”) to the Motion that reference Plaintiffs’ privileged physician-patient and psychotherapist- 13 patient communications. 14 II. GOOD CAUSE EXISTS TO HEAR THIS ISSUE ON AN EX PARTE BASIS 15 California Rules of Court, rule 3.1201 provides in pertinent part as follows: 16 “A request for ex parte relief must be in writing and must include all of the following: 17 * * * 18 (2) A declaration in support of the application making the factual showing required 19 under 3.1202(c). 20 * * * 21 (c) An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, 22 immediate danger, or any other statutory basis for granting relief ex parte.” 23 Defendant seeks an Order to seal limited confidential information in connection with their 24 pending Motion. Good cause exists to grant the instant ex parte application inasmuch as 25 Defendant was required to rely on Plaintiffs’ privileged physician-patient and psychotherapist- 26 patient communications as evidence in its Motion to demonstrate good cause for the examination 27 and appropriateness of the scope of the demand. However, filings with the Court are made 4892-4095-1081.1 4 28 LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’ BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL BISGAARD EXAMINATION & SMITH LLP ATTORNEYS AT LAW 1 available to the public and accessible online. Accordingly, ex parte relief is proper. [Declaration 2 of Sumy Kim at ¶ 2.] 3 III. THE COURT IS EMPOWERED TO GRANT THIS APPLICATION TO SEAL 4 California Rules of Court 2.550-2.585 apply to records sealed or proposed to be sealed by 5 court order. (California Rules of Court 2.550(a)(1).) The rules apply to discovery materials that 6 are used at trial or submitted as a basis for adjudication of matters other than discovery motions or 7 proceedings. (California Rules of Court 2.550(a)(2).) The court may order that a record be filed 8 under seal (or sealed) only if it expressly finds facts that establish: 9 - There is an overriding interest that overcomes the right of public access to the 10 record; 11 - The overriding interest supports sealing the record; 12 - A substantial probability exists that the overriding interest will be prejudiced if the 13 record is not sealed; 14 - The proposed sealing is narrowly tailored; and 15 - No less restrictive means exist to achieve the overriding interest. 16 (California Rules of Court 2.550(d)(1)-(5) 17 California Rules of Court 2.550(d)-(e) is derived from NBC Subsidiary (KNBC-TV), Inc. v. 18 Superior Court (1999) 20 Cal.4th 1178, 1217, which held a court must find an “overriding 19 interest” that supports the closure or sealing, and must make certain express findings. The 20 decision notes that the First Amendment right of access applies to records filed in both civil and 21 criminal cases as a basis for adjudication. (Id. at p. 1208 [fn. 25].) Thus, the NBC Subsidiary test 22 applies to the sealing of records. (See Adv. Comm. Comment to Cal. Rules of Court, rule 2.550.) 23 Information transmitted between a psychotherapist and a patient in the course of the 24 therapeutic relationship is privileged unless its disclosure is authorized under a statute creating an 25 exception to the privilege or the privilege is waived. (Evidence Code §§ 1012, 1014; Menendez v. 26 Superior Court (1992) 3 Cal.4th 435, 449.) Further, the confidentiality of communications 27 between patients and their psychotherapists does not depend solely on the statutory privilege 4892-4095-1081.1 5 28 LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’ BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL BISGAARD EXAMINATION & SMITH LLP ATTORNEYS AT LAW 1 created by the Evidence Code. These communications are also independently protected by the 2 constitutional right of privacy under the federal and state constitutions. (People v. Hammon 3 (1997) 15 Cal.4th 1117, 1127; Kirchmeyer v. Phillips (2016) 245 Cal.App.4th 1394, 1403; San 4 Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1095.) Accordingly, the 5 information Defendant seeks to seal pertains to protecting a constitutional right to privacy for 6 Plaintiffs. 7 Furthermore, the proposed sealing is narrowly tailored as Defendant only requests the 8 Court to enter an Order sealing (1) page 6, lines 14-15, 21-22, and page 7, lines 2-3, of the MPA; 9 (2) page 3, lines 11-12, 18-19, 27, and page 3, line 1, of the Kim Decl. (the “Confidential 10 Portions”). [Declaration of Sumy Kim at Exhibit A.] 1 11 In addition, the parties to this action have entered into a Stipulation and Protective Order, 12 which governs the confidentiality of the documents produced in this case, and the information 13 provided in the Confidential Portions were derived from medical records which Plaintiffs 14 designated as CONFIDENTIAL. [Declaration of Sumy Kim at Exhibit B.] 15 Therefore: (1) Plaintiffs’ privilege and right to privacy is an overriding interest that 16 overcomes the right of the public to access the Motion because by allowing public access 17 Plaintiffs’ rights will likely be violated; (2) protecting Plaintiffs from this violation of their 18 privilege and rights is an overriding interest which supports sealing the record; (3) if the Motion is 19 not sealed Plaintiffs’ rights will likely be prejudiced; (4) the proposed sealing is narrowly tailored 20 to the single Motion; and (5) no less restrictive means exist as the basis of the Motion requires 21 discussion of the privileged information. On these bases, good cause exist to grant this 22 application. 23 V. PROPER NOTICE OF THE INSTANT APPLICATION HAS BEEN GIVEN 24 An ex parte application requires notice to the opposing party or counsel by 10:00 a.m. the 25 1 26 For the sake of brevity, the exhibits to the Kim Decl. in Support of the Motion were not attached to this ex parte given they are 80+ pages and there are no redactions to be made therein. 27 4892-4095-1081.1 6 28 LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’ BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL BISGAARD EXAMINATION & SMITH LLP ATTORNEYS AT LAW 1 court day prior to the ex parte appearance. California Rules of Court Rule 3.1203(a). As set forth 2 in the Kim Decl., all counsel were notified of this ex parte Application by electronic mail on June 3 30, 2020, at least a court day prior to the ex parte hearing in accordance with California Rule of 4 Court 3.1203(a.) [Kim Decl. at ¶ 5.] Thus, proper notice of the ex parte hearing was given. 5 VI. CONCLUSION 6 Based on the foregoing, Defendant respectfully requests the Court grant the Ex Parte 7 Application to Seal Records, replace the currently filed MPA and Declaration with the redacted 8 versions attached, and issue an order that the undredacted versions of the Motion described herein 9 remain under seal in the Court’s files. 10 11 DATED: July 14, 2022 LEWIS BRISBOIS BISGAARD & SMITH LLP 12 13 By: 14 Sumy Kim Attorneys for Defendants EUROMOTORS, INC. 15 DBA MERCEDES-BENZ OF SAN FRANCISCO and DARIN SPARROW 16 17 18 19 20 21 22 23 24 25 26 27 4892-4095-1081.1 7 28 LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’ BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL BISGAARD EXAMINATION & SMITH LLP ATTORNEYS AT LAW 1 DECLARATION OF SUMY KIM 2 I, Sumy Kim, declare as follows: 3 1. I am an attorney duly admitted to practice in all of the courts of the State of 4 California and I am a Partner at Lewis Brisbois Bisgaard & Smith LLP, attorneys of record for 5 Defendants EUROMOTORS, INC. DBA MERCEDES-BENZ OF SAN FRANCISCO and 6 DARIN SPARROW (collectively, “Defendants”) in this case. The facts set forth herein are of my 7 own personal knowledge, and if sworn I could and would competently testify thereto. 8 2. Defendants’ Motion to Seal seeks to have protected portions of its Motion for Leave 9 of Court to Require Plaintiffs Submit to an Independent Mental Examination, and Request for 10 Sanctions (“Motion”) sealed/redacted. In seeking leave in its Motion, Defendants was required to 11 rely on Plaintiffs’ privileged physician-patient and psychotherapist-patient communications as 12 evidence in its Motion to demonstrate good cause for the examination and appropriateness of the 13 scope of the demand for mental examination. However, filings with the Court are made available 14 to the public and accessible online, and Plaintiffs’ privacy rights may be violated. 15 3. The proposed sealed version of the Memorandum of Points and Authorities and 16 Declaration of Sumy Kim to the Motion is attached hereto as Exhibit A. 17 4. The parties to this action have entered into a Stipulated Confidentiality Agreement 18 for Entry of Protective Order. See Exhibit B. 19 5. Proper notice of the instant application has been given. On July 14, 2022, I sent e- 20 mails to counsel for all parties before 10 a.m., giving proper ex parte notice. See Exhibit C. 21 I declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct and that this declaration was executed on July 14, 2022, at San 23 Francisco, California. 24 25 26 Sumy Kim 27 4892-4095-1081.1 8 28 LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’ BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL BISGAARD EXAMINATION & SMITH LLP ATTORNEYS AT LAW 1 CALIFORNIA STATE COURT PROOF OF SERVICE 2 Lukman Dotson, et al. v. Euromotors, Inc., et al. San Francisco County Superior Court, Case No. CGC-20-587463 3 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 4 At the time of service, I was over 18 years of age and not a party to this action. My business address is 333 5 Bush Street, Suite 1100, San Francisco, CA 94104-2872. 6 On July 14, 2022, I served true copies of the following document(s): 7 EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’ MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN 8 INDEPENDENT MENTAL EXAMINATION 9 I served the documents on the following persons at the following addresses (including fax numbers and e- mail addresses, if applicable): 10 Bree A. Ullman Hunter Pyle 11 LAW OFFICE OF BREE A. ULLMAN John J. Darin 1054 Keith Avenue HUNTER PYLE LAW 12 Berkeley, California 94708 428 Thirteenth Street, 11th Floor Telephone: (425) 318-0708 Oakland, California 94612 13 Email: bree.esq@gmail.com Telephone: (510) 444-4400 Facsimile: (510) 444-4410 14 Attorneys for Plaintiffs Email: LUKMAN DOTSON hunter@hunterpylelaw.com jdarin@hunterpylelaw.com 15 ADEAJAI DOTSON Tanya Tambling – ttambling@hunterpylelaw.com ALI HABIBVAND 16 Attorneys for Plaintiffs LUKMAN DOTSON 17 ADEAJAI DOTSON ALI HABIBVAND 18 19 The documents were served by the following means: 20 (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent from e-mail address 21 Jennifer.Marigmen@lewisbrisbois.com to the persons at the e-mail addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the 22 transmission was unsuccessful. 23 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 14, 2022, at San Francisco, California. 24 25 26 JENNIFER MARIGMEN 27 4892-4095-1081.1 9 28 LEWIS EX PARTE APPLICATION FOR AN ORDER TO SEAL CONFIDENTIAL INFORMATION IN DEFENDANTS’ BRISBOIS MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS TO SUBMIT TO AN INDEPENDENT MENTAL BISGAARD EXAMINATION & SMITH LLP ATTORNEYS AT LAW EXHIBIT A 1 LEWIS BRISBOIS BISGAARD & SMITH LLP JOSEPH R. LORDAN, SB# 265610 2 E-Mail: Joseph.Lordan@lewisbrisbois.com ALLISON L. CARDENAS, SB# 272924 3 E-Mail: Allison.Cardenas@lewisbrisbois.com SUMY KIM, SB# 290082 4 E-Mail: Sumy.Kim@lewisbrisbois.com KAA BAO YANG, SB# 302155 5 E-Mail: KaaBao.Yang@lewisbrisbois.com CIARA M. DINEEN, SB# 319913 6 E-Mail: Ciara.Dineen@lewisbrisbois.com 444 Bush Street, Suite 1100 7 San Francisco, California 94104-2872 Telephone: 415.362.2580 8 Facsimile: 415.434.0882 9 Attorneys for Defendants EUROMOTORS, INC. DBA MERCEDES- PUBLIC FOR FILING - CONTAINS 10 BENZ OF SAN FRANCISCO and DARIN REDACTIONS FROM CONDITIONALLY 11 SPARROW SEALED RECORD 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN FRANCISCO 14 15 LUKMAN DOTSON; ADEAJAI DOTSON; CASE NO. CGC-20-587463 16 and ALI HABIBVAND, DEFENDANTS’ NOTICE OF MOTION 17 Plaintiffs, AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS ADEAJAI 18 vs. DOTSON AND ALI HABIBVAND TO SUBMIT TO AN INDEPENDENT 19 EUROMOTORS, INC. DBA MERCEDES- MENTAL EXAMINATION AND BENZ OF SAN FRANCISCO, a California REQUEST FOR SANCTIONS; 20 corporation; DARIN SPARROW, an MEMORANDUM OF POINTS AND individual; and DOES 1-20, inclusive, AUTHORITIES IN SUPPORT THEREOF 21 Defendants. [Filed concurrently Declaration of Sumy 22 Kim; Request for Judicial Notice; Separate Statement; and [Proposed] Order] 23 Date: August 5, 2022 24 Time: 9:00 AM Dept.: 301 25 Action File: November 3, 2020 26 Trial Date: September 7, 2022 27 28 LEWIS 4881-1424-2089.1 BRISBOIS BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS & SMITH LLP ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS 1 TO ALL PARTIES IN AND THEIR ATTORNEYS OF RECORD HEREIN: 2 PLEASE TAKE NOTICE that on August 5, 2022, at 9:00 AM in Department 301 of the 3 above-entitled court, Defendants EUROMOTORS, INC. DBA MERCEDES-BENZ OF SAN 4 FRANCISCO and DARIN SPARROW (“Defendants”), will and hereby do, move under Section 5 2032.310 of the California Code of Civil Procedure for an order requiring Plaintiffs ADEAJAI 6 DOTSON and ALI HABIBVAND (“Plaintiffs”) to submit to an independent mental examination 7 (“IME”) to be conducted by Dr. Jeff Gould, M.D. at a date/time mutually available for all parties. 8 The IME Defendants seek to compel will be a mental examination limited to testing (including the 9 use of accepted diagnostic instruments and tests) and a forensic psychiatric interview. 10 This Motion is made pursuant to the Code of Civil Procedure sections 2023.010(e), 11 2032.020, 2032.220, 2032.310, and 2032.320. Plaintiffs have placed their mental state at issue in 12 this case. The Motion will be based on this Notice, the attached Memorandum of Points and 13 Authorities, the Declaration of Sumy Kim, Request for Judicial Notice, Separate Statement, the 14 complete files and records of this action, and such other and further matters as may be presented to 15 the court before and at the time of the hearing. 16 PLEASE TAKE FURTHER NOTICE that Defendants also seek sanctions against 17 Plaintiffs and Plaintiffs’ counsel for fees and costs incurred by Defendants in the amount of 18 $4,265 pursuant to Code of Civil Procedure § 2032.240(c) for necessitating this Motion and 19 refusal to comply with a demand for an examination without substantial justification. 20 DATED: July 13, 2022 LEWIS BRISBOIS BISGAARD & SMITH LLP 21 22 23 By: Sumy Kim 24 Attorneys for Defendants EUROMOTORS, INC. DBA MERCEDES-BENZ OF SAN FRANCISCO 25 and DARIN SPARROW 26 27 28 LEWIS BRISBOIS 4881-1424-2089.1 2 BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS & SMITH LLP ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS 1 TABLE OF CONTENTS Page 2 3 I. INTRODUCTION ..................................................................................................................3 4 II. FACTUAL/PROCEDURAL BACKGROUND ....................................................................4 5 A. Plaintiffs Assert that They Have Experienced Severe Emotional Distress ................4 6 B. Discovery Suggests Significant Alternative Stressors ...............................................6 7 C. Defendants’ Efforts to Meet and Confer Without Avail ............................................7 8 III. THE CODE OF CIVIL PROCEDURE REQUIRES PLAINTIFFS TO SUBMIT TO THE IME .........................................................................................................................7 9 IV. GOOD CAUSE EXISTS BECAUSE PLAINTIFFS HAVE PUT THEIR MENTAL 10 STATE, INCLUDING ALTERNATIVE STRESSORS, AT ISSUE ....................................8 11 V. THE COURT SHOULD GRANT DEFENDANTS’ PROPOSAL FOR THE SCOPE OF PLAINTIFF’S IME AS IT IS REASONABLE AND LEGALLY 12 COMPLIANT.......................................................................................................................10 13 VI. IF PLAINTIFFS REFUSE TO SUBMIT TO AN IME, PLAINTIFFS SHOULD BE PRECLUDED FROM SEEKING SPECIFIC EMOTIONAL DISTRESS 14 DAMAGES AGAINST DEFENDANTS AND INTRODUCING EXPERT TESTIMONY AT TRIAL ....................................................................................................13 15 VII. THE COURT SHOULD REQUIRE PLAINTIFFS AND/OR THEIR COUNSEL 16 TO PAY SANCTIONS FOR THE COSTS AND FEES INCURRED IN CONNECTION WITH THIS MOTION. .............................................................................13 17 VIII. CONCLUSION ....................................................................................................................14 18 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS 4881-1424-2089.1 1 BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS & SMITH LLP ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS 1 TABLE OF AUTHORITIES 2 Page 3 4 CASES 5 Doyle v. Superior Court (1996) 50 Cal.App.4th 1878 .......................................................................................... 10,11 6 Shapira v. Superior Court 7 (1990) 224 Cal.App.3d 1249, 1256 .................................................................................... 10 8 Vinson v. Super. Ct. (1987) 43 Cal.3d. 833, 840 ........................................................................................... 10, 11 9 Whitfield v. Superior Court for Los Angeles County 10 (1966) 246 Cal.App.2d 81, 83……………………………………………..………………10 11 FEDERAL STATUTES 12 Code Civ. Proc., § 2017.010 ........................................................................................................... 13 13 Code Civ. Proc., § 2032.020(a) ....................................................................................................... 11 14 Code Civ. Proc., § 2032.020, subdivision (a) ................................................................................. 10 15 Code Civ. Proc., § 2032.210, subdivision (b) ................................................................................. 14 16 Code Civ. Proc., § 2032.310 ........................................................................................................... 13 17 Code Civ. Proc., § 2032.310(a) ....................................................................................................... 11 18 Code Civ. Proc., § 2032.320(a) ....................................................................................................... 11 19 Code Civ. Proc., § 2032.320(c) ....................................................................................................... 16 20 Code Civ. Proc., § 2032.320(c)(1) .................................................................................................. 16 21 Code Civ. Proc., § 2032.320(d) ....................................................................................................... 13 22 Code Civ. Proc., §§ 2032.320(c) ..................................................................................................... 16 23 Code Civ. Proc., §2032.020(c) ........................................................................................................ 13 24 25 26 27 28 LEWIS BRISBOIS 4881-1424-2089.1 2 BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS & SMITH LLP ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Defendants EUROMOTORS, INC. DBA MERCEDES-BENZ OF SAN FRANCISCO 4 (“Euromotors”) and DARIN SPARROW (collectively “Defendants”) seek an order compelling 5 Plaintiffs ADEAJAI DOTSON (“Dotson”) and ALI HABIBVAND (“Habibvand”) (“collectively 6 Plaintiffs”) to submit to an Independent Mental Examination (“IME”). This lawsuit arises out of 7 Plaintiffs’ employment with Euromotors wherein they made claims for racial harassment and 8 discrimination, failure to prevent harassment and discrimination, and constructive discharge in 9 violation of public policy. Summarily, Plaintiffs allege that they were subject to a hostile work 10 environment wherein they were harassed with racial slurs and comments, and the alleged racial 11 abuse reached an “apex” when one of the alleged harassers brought a handgun to the dealership. 12 Plaintiffs agreed to consider a stipulation for an IME, but it appears they are now refusing for 13 reasons that remain elusive to Defendants. Following Plaintiffs’ refusal to sign Defendants’ 14 proposed Stipulation or engage in any further meet and confer efforts, Defendants now bring the 15 instant motion. 16 Plaintiffs seek emotional distress damages beyond garden variety and thus have placed 17 their mental health at issue. This is apparent in their pleadings, verified discovery responses, and 18 produced medical records. 1 California Code of Civil Procedure requires that Plaintiffs submit to 19 an independent medical examination or agree to limit their damages to those identified in sections 20 2032.320(b) and (c). Defendants believe that either Plaintiffs have little or no emotional injuries, 21 or that alternate stressors caused any and all of their alleged emotional distress. If it is determined 22 that Plaintiffs suffered distress, Defendants have the right to ascertain its severity and determine 23 whether Defendants’ alleged conduct was the cause of the distress or whether it resulted from 24 alternative causes. As such, Defendants must be provided a fair opportunity to determine the 25 26 1 Plaintiffs have not yet been deposed as to their emotional distress. Therefore, Defendants 27 respectfully requests that additional evidence may be considered in its reply papers should material testimony be provided on these issues. 28 LEWIS BRISBOIS 4881-1424-2089.1 3 BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS & SMITH LLP ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS 1 nature, extent, and cause of Plaintiffs’ alleged emotional distress in order to defend against their 2 claims, which it cannot do without a mental IME of Plaintiffs that includes an examination of 3 alternative stressors and preexisting conditions. Accordingly, Defendants respectfully request the 4 Court grant their Motion to Compel Plaintiffs to subject to an IME pursuant to the terms laid out 5 below. 6 II. FACTUAL/PROCEDURAL BACKGROUND 7 A. Plaintiffs Assert that They Have Experienced Severe Emotional Distress 8 In their operative first amended complaint, Plaintiffs Dotson and Habibvand specifically 9 allege they suffered “severe emotional distress” due to Defendants’ conduct. [First Amended 10 Complaint (“FAC”) at paras. 141-142 is attached to the Request for Judicial Notice (“RJN”) at 11 Exhibit A.] They assert that they have been diagnosed with psychiatric injuries and seek “general 12 damages for humiliation, mental anguish and severe emotional distress, according to proof”. 13 [FAC at Request for Relief No. 2 at p. 18 (emphasis added).] 14 Similarly, in Plaintiffs’ verified written discovery responses, Plaintiffs repeatedly state that 15 they have suffered extreme emotional distress: 16 Habibvand’s Discovery Responses 17 • In response to Form Interrogatory-Employment, No. 212.2, which asks Plaintiff to 18 identify each injury he attributes to the adverse employment action and the area of the 19 body affected, he responds: “Responding Party has suffered emotional distress, 20 including but not limited to mental suffering, loss of enjoyment of life, grief, 21 anxiety, and humiliation as a result of Defendants’ conduct. Responding Party has 22 been diagnosed with Acute Stress Disorder, Anxiety Disorder, Generalized 23 Anxiety Disorder, Major Depressive Disorder, Insomnia, and Post-Traumatic 24 Stress Disorder. [Habibvand’s Fourth Amended Verified Responses to Form 25 Interrogatories-Employment Law, Set One (“FI”), No. 212.2, attached as Exh. A to 26 Declaration of Sumy Kim (“Kim Decl.”), ¶ 2 (emphasis added).] 27 • When asked if he still has the above complaints and if so, are they getting better, the 28 same or worse, Plaintiff responds: “Yes, a) Major Depressive Disorder, recurrent LEWIS BRISBOIS 4881-1424-2089.1 4 BISGAARD DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR LEAVE OF COURT TO REQUIRE PLAINTIFFS & SMITH LLP ATTORNEYS AT LAW SUBMIT TO AN INDEPENDENT MENTAL EXAMINATION AND REQUEST FOR SANCTIONS 1 episode, moderate; Posttraumatic Stress Disorder; Generalized Anxiety Disorder; 2 Obsessive Compulsive Disorder; Insomnia; b) Subsiding; c) Generally subsiding in 3 frequency and duration.” [Id. at FI No. 212.3 (emphasis added).] 4 • Plaintiff also confirmed that he sought medical treatment from nine different medical 5 professionals during the relevant period to the present date and was prescribed 6 medication. [Id. at FI No. 212.4 and 212.5] 7 • Plaintiff also confirmed that his healthcare provider advised him that he would require 8 future/additional treatment for the injuries he attributes to the adverse employment 9 action. [Id. at FI No. 212.7] 10 • Plaintiff claims that his psychological health impacted his ability to minimize lost 11 income, as he claimed that he was unable to pursue employment opportunities on 12 multiple occasions between 2018 and 2021 “due to psychological injuries…” [Id. at FI 13 No. 210.4] 14 Dotson’s Discovery R