Preview
Rob Bonta
Attorney General
1300 I STREET, SUITE 125
P.O. BOX 944255
SACRAMENTO, CA 94244-2550
Public: (916) 445-9555
Telephone: (916) 210-6113
Facsimile: (916) 324-5567
E-Mail: James.Curran@doj.ca.gov
April 16, 2024
Clerk of the Court
Department 53
Superior Court of California
County of Sacramento
RE: LaTonya Bankett v. FTB, et al.
Superior Court of California, County of Sacramento, Case No. 34-2018-00241074-CU-
OE-GDS
Dear Clerk:
Defendant California Franchise Tax Board hereby submits, pursuant to California Rules
of Court, Rule 3.1312:
(1) the attached [Proposed] Order Granting FTB’s motion to Compel Mental
Examinations of Plaintiff,
(2) the final ruling issued by Judge Sueyoshi on the morning of April 11, 2024, and
(3) an email chain setting forth Plaintiff’s counsel’s reasons for disapproval of the
Proposed Order.
///
County of Sacramento
April 16, 2024
Page 2
Our office personally and electronically served the Proposed Order on Plaintiff’s counsel
on Thursday, April 11, 2024. We are therefore submitting these materials because today is the
fifth day after we did so. (See CRC, Rule 3.1312 (b) [“The prevailing party must, upon
expiration of the five-day period provided for approval, promptly transmit the proposed order to
the court together with a summary of any responses of the other parties or a statement that no
responses were received.”].)
Sincerely,
�4�p--
JAMES F. CURRAN
Deputy Attorney General
For ROB BONTA
Attorney General
JFC:
SA2018101607
38018284.docx
1 ROB BONTA
Attorney General of California
2 KRISTIN M. DAILY
Supervising Deputy Attorney General
3 JAMES F. CURRAN
Deputy Attorney General
4 State Bar No. 142041
1300 I Street, Suite 125
5 P.O. Box 944255
Sacramento, CA 94244-2550
6 Telephone: (916) 210-6113
Fax: (916) 324-5567
7 E-mail: James.Curran@doj.ca.gov
Attorneys for Defendant
8 California Franchise Tax Board
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12
13
LATONYA BANKETT, Case No. 34-2018-00241074-CU-OE-GDS
14
Plaintiff, [PROPOSED] ORDER GRANTING
15 FTB'S MOTION TO COMPEL MENTAL
v. EXAMINATIONS OF PLAINTIFF
16
Date: April 10, 2024
17 CALIFORNIA FRANCHISE TAX Time: 1:30 PM
BOARD, Dept: 53
18 Judge: Hon. Richard K. Sueyoshi
Defendants. Trial Date: May 13, 2024
19 Action Filed: September 20, 2018
20
21 Defendant Franchise Tax Board (FTB) filed, in February 2024, its MOTION FOR LEAVE
22 OF COURT TO COMPEL MENTAL EXAMINATIONS OF PLAINTIFF. Pursuant to
23 stipulation approved by the court, the hearing on the motion was postponed to April 10, 2024.
24 The court issued a tentative ruling granting the motion on April 9, 2024. Plaintiff requested oral
25 argument, and the motion came on for remote hearing in Department 53 during the court’s 1:30
26 p.m. law and motion calendar on April 10, 2024. Attorney Andrea Rosa of the Rosa Law Group
27 appeared on behalf of Plaintiff LaTonya Bankett. Deputy Attorneys General Shanae Buffington
28 and James Curran appeared on behalf of Defendant FTB. The court, having considered the
1
[Proposed] Order Granting Motion to Compel Mental Examinations of Plaintiff (34-2018-00241074-CU-OE-GDS)
1 moving and opposing papers and evidence submitted by both parties, and having heard the
2 arguments of counsel at the hearing, took the matter under submission, then issued its final ruling
3 (attached) on the morning of April 11, 2024, granting Defendant’s motion.
4 The court concludes FTB has established the requisite “good cause” to conduct two mental
5 examinations, one by Alexis Smith, PsyD, and one by Matthew Carroll, MD, relating to
6 plaintiff’s emotional distress claims and to evaluate Plaintiff’s alleged learning disability and
7 ability to perform the essential functions of her job with or without an accommodation.
8 THEREFORE, IT IS HEREBY ORDERED THAT:
9 EXAMINATION BY ALEXIS SMITH, PsyD
10 1. Plaintiff shall appear on April 19, 2024, at 9:30 a.m. for the mental examination by
11 Alexis Smith, PsyD at Imagine Reporting, 2870 Gateway Oaks Drive, Suite 106, Sacramento,
12 California 95833 ([916] 742.7478). Plaintiff shall not be joined by any person in the
13 examination room during the examination by Dr. Smith,
14 2. Dr. Smith’s examination shall include a first phase that will involve a battery of
15 psychological tests and neuropsychological tests described below that she will administer, score,
16 and interpret. Dr. Smith will also conduct a brief clinical interview. Dr. Smith’s portion of the
17 examination will compliment Dr. Carroll’s in-depth forensic psychiatric interview.
18 3. The test battery will include selective endorsement tests, or questionnaires, and a
19 projective test. Ms. Bankett’s responses will be compared to the normative data that have been
20 collected for a wide range of clinical and forensic respondents. The test battery will include the
21 following tests, none of which is invasive:
22 Tests of emotional functioning:
23 Minnesota Multiphasic Personality Inventory-Third Edition
24 Personality Assessment Inventory
25 Rorschach Performance Assessment System
26 Tests of neuropsychological functioning:
27 Test of Memory Malingering
28 Green's Word Memory Test
2
[Proposed] Order Granting Motion to Compel Mental Examinations of Plaintiff (34-2018-00241074-CU-OE-GDS)
1 Wechsler Adult Intelligence Scale-Fourth Edition
2 Fingertapping Test
3 Grooved Pegboard Test
4 Trail Making Test
5 Connor's Continuous Processing Test-Third Edition
6 Digit Vigilance Test
7 Wide Range Achievement Test-Fifth Edition
8 5. The clinical interview will take approximately one hour excluding appropriate breaks.
9 The psychological and neuropsychological testing will take approximately six hours excluding
10 appropriate breaks. Additional time will be allowed, if needed. Dr. Smith reserves the right to
11 add or subtract tests and test domains in response to information that she may receive about the
12 plaintiff as well as based upon her performance during the assessment. Dr. Smith’s
13 understanding is that Ms. Bankett has difficulty in responding to certain questions. If this
14 happens during Dr. Smith’s clinical interview of Ms. Bankett, the interview might take longer
15 than one hour. In no event, however, will the total examination, consisting of both the clinical
16 interview and testing, take longer than seven hours. The examination will take place in the
17 above-described court-reporting firm’s office, in a room that will be sufficiently quiet and free of
18 distractions so as not to unreasonably interfere with the interview process, and it will be
19 sufficiently private to avoid anyone outside the room from eavesdropping. The room will have a
20 table and chairs so that Ms. Bankett and Dr. Smith may sit across from each other during the
21 clinical interview and testing process.
22 6. Dr. Smith’s examination will not be videotaped. It may be audio-taped if desired,
23 however, any audio recording of the testing process will only be provided to a qualified expert
24 retained by Plaintiff, consistent with the Ethics Code of the American Psychological Association.
25 Plaintiff shall also have the option of audio-recording the examination, provided that no other
26 person besides Plaintiff shall be allowed in the examination room during the examination.
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3
[Proposed] Order Granting Motion to Compel Mental Examinations of Plaintiff (34-2018-00241074-CU-OE-GDS)
1 EXAMINATION BY MATTHEW CARROLL, M.D.
2 1. Dr. Carroll will conduct his examination via videoconference (e.g., Zoom) and Plaintiff
3 shall participate in the examination via videoconference, on April 26, 2024, at 9:30 a.m., from a
4 conference room at Imagine Reporting’s Sacramento office, located at 2870 Gateway Oaks Drive,
5 Suite 106, Sacramento, California 95833 ([916] 742.7478). No other person shall be in the room
6 from which Plaintiff participates in the remote examination during the examination, provided
7 however that Imagine Reporting staff may enter the room before or during breaks in the
8 examination to set up or assist with the videoconference.
9 2. Dr. Carroll will conduct a clinical interview, but no testing. His examination will
10 consume a total of approximately six hours, exclusive of breaks, but in no event will his
11 examination exceed a total of seven hours, exclusive of breaks. The estimated hours of
12 examination should be adequate to ensure the accuracy of Dr. Carroll’s psychiatric diagnosis and
13 the correctness of his medical-legal opinions and conclusions, subject to Plaintiff’s cooperation,
14 good faith, and pace in answering interview questions. The estimated time for the clinical
15 interview should be sufficient, subject to the above-listed variables, for Dr. Carroll to ask follow-
16 up questions, if possible and appropriate, from earlier interview question responses. Subject to the
17 above-listed variables, the clinical interview should allow Plaintiff to supplement or correct any
18 information she has provided earlier in the examination.
19 3. Dr. Carroll will audio record the examination. Plaintiff shall also have the option of
20 audio-recording the examination, provided that no other person besides Plaintiff shall be allowed
21 in the examination room during the examination. No video recording of the examination shall be
22 allowed.
23 4. Dr. Carroll’s interview will involve an inquiry into Plaintiff Bankett’s current mental
24 status, cognitive functioning, the employment experiences that she alleges contributed to her
25 complaints of emotional distress, any medical or psychological treatment for symptoms from the
26 alleged distress, her experiences between the events on which this lawsuit is based and the time of
27 the evaluation to assess the stress factors contributory to continuing stress symptoms, and her past
28 personal history involving her family, significant developmental experiences, educational and
4
[Proposed] Order Granting Motion to Compel Mental Examinations of Plaintiff (34-2018-00241074-CU-OE-GDS)
1 occupational history, dating and marital history, litigation history, financial history, and past
2 medical and psychiatric history. Dr. Carroll’s examination concerning Plaintiff’s complaints of
3 emotional distress and damages related thereto shall be limited to the time period between 2007,
4 when Plaintiff first applied to work for Defendant, to the present.
5 REASONABLE COOPERATION
6 Counsel for both parties shall cooperate reasonably in all respects concerning all
7 arrangements for both of the above-described mental examinations.
8 Issued on April __, 2024 in Sacramento, California.
9 _____________________________
Hon. Richard K. Sueyoshi
10 Judge of the Superior Court
11
Approved as to Form on April __, 2024:
12 _____________________________
Andrea Rosa
13 Attorney for Plaintiff
14 SA2018101607, Proposed Order Granting FTB Motion to Compel Mental Examinations - 04 11 24 Draft 3.docx
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[Proposed] Order Granting Motion to Compel Mental Examinations of Plaintiff (34-2018-00241074-CU-OE-GDS)
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Hall of Justice
Latonya Bankett No. 34-2018-00241074-CU-OE-
Plaintiff/Petitioner(s) GDS
vs.
California Franchise Tax Board et Date: 04/11/2024
al Time: 8:40 AM
Defendant/Respondent(s)
Dept: 53
Judge: Richard K. Sueyoshi
ORDER re: Ruling on Submitted Matter
The Court, having taken the matter under submission on 04/10/2024, now rules as follows:
TENTATIVE RULING:
Defendant California Franchise Tax Board’s (“FTB”) “Motion for Leave of Court to Compel
Mental Examinations of Plaintiff” pursuant to Code of Civil Procedure §2032.310 is ruled upon
as follows.
Opposing counsel failed to comply with CRC Rule 3.1113(f), requiring a Table of Authorities
and Table of Contents when the memorandum exceeds 10 paged.
Factual Background
This action arises out plaintiff’s employment with defendant FTB on a permanent but
intermittent basis. Plaintiff claims to have a learning disability and the operative amended
complaint generally alleges defendant FTB failed on several occasions to promote plaintiff
and/or make her a full-time employee, ultimately reducing her hourly pay and keeping plaintiff
in “an endless cycle of poverty” with low wages and limited benefits. The complaint purports to
asserts a variety of discrimination and related claims (e.g., failure to accommodate, failure to
engage in the interactive process, etc.) under the FEHA, along with an additional claim under the
Labor Code for “Under Paid Wages” (the latter of which is the subject of a pending demurrer).
Trial is currently set to commence on 5/13/2024.
Moving Papers. Defendant FTB now moves for an order compelling plaintiff Bankett to submit
to two mental examinations characterized as “one comprehensive mental examination” on the
following grounds:
(1) Plaintiff claims she is capable of performing the essential functions of her job with
reasonable accommodation for her learning disability and has therefore placed her ability to
perform those functions “in controversy;”
(2) Plaintiff has placed her “mental and emotional condition” “in controversy” by
alleging ongoing emotional distress in the form of “nervousness, anxiety, stress, and worry;”
“pain and suffering;” heartache;” feeling “unimportant;” loss of appetite; and an inability to go to
work;
ORDER re: Ruling on Submitted Matter Page 1 of 6
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Hall of Justice
(3) FTB cannot obtain the information concerning plaintiff’s mental condition by any
means other than the proposed mental examination(s);
(4) FTB’s ability to present evidence relating to its affirmative defenses will be
“substantially reduced” without the proposed mental examination(s);
(5) The scope of the proposed examinations is “tailored to allow complete but not overly
invasive mental evaluations; and
(6) Plaintiff has failed to stipulate to the proposed mental examinations and to engage in
a good-faith meet-and-confer process about them.
According to the moving papers, a forensic psychologist (Dr. Smith) will conduct a clinical
interview of roughly one hour followed by roughly six hours of psychological testing (exclusive
of breaks) and a forensic psychiatrist (Dr. Carroll) will conduct a more extensive but non-
duplicative clinical interview (without testing) of roughly six hours (exclusive of breaks).
Opposition. Plaintiff opposes, arguing that this motion should be denied for several reasons:
(1) Plaintiff is not claiming she suffers from “severe” emotional distress or has ongoing
“severe” emotional distress;
(2) Defendant has failed to demonstrate any “exceptional circumstance” necessary to
warrant a “psychiatric examination” and no “exceptional circumstance” exists;
(3) Plaintiff’s emotional distress is “self-evident” and no psychiatric examination or
testimony is “necessary or required to explain her emotional distress;”
(4) Compelling plaintiff to submit to this examination and testing will result in “a
substantial burden on a significantly learning[-]disabled Plaintiff by causing unjust and
unnecessary intrusion upon her constitutional right to privacy and…family privacy, cause a
significant increase in anxiety, as well as a time burden on Plaintiff and this Court at the time of
trial;” and
(5) Neither of the two distinct reasons cited by defendant for this mental examination (i.e.,
to evaluate plaintiff’s “emotional distress” and to confirm her learning disability which requires a
reasonable accommodation) are “contemplated by the statute.” (Oppos., p.2:3-21.)
The opposition further asserts that defendant has failed to demonstrate the requisite “good
cause;” the emotional distress plaintiff suffered “was in the past and is not ongoing” (Oppos.,
p.4:24-25; p.6:10-11); the proposed examinations amount to an impermissible “fishing
expedition” with no meaningful limitations; the motion does not comply with Code of Civil
Procedure §2032.310(a) [sic] and does not provide specific details of tests to be performed (Id.,
at p.7:4-p.9:10); the tests proposed “have nothing whatsoever to do with anxiety, depression, or
other emotional problems” (Id., at p.12:5-p.13:9); and this examination cannot be used to
determine whether plaintiff should be provided a reasonable accommodation (Id., at p.13:10-
p.14:14).
Reply. FTB maintains that plaintiff has placed her mental condition at issue by alleging ongoing
“emotional distress” in various forms and the opposition’s suggestion that this emotional distress
is “self-evident” and “not severe” is irrelevant to the present motion, as defendant should have an
opportunity to assess plaintiff’s claim, its causation and the treatment for same. While the
opposition also takes issue with the scope of the examinations, it was plaintiff’s own counsel
who refused to engage in a meet-and-confer process to work out the details and who still refuses
ORDER re: Ruling on Submitted Matter Page 2 of 6
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Hall of Justice
to stipulate there is no claim for ongoing emotional distress. Under such circumstances, FTB is
entitled to conduct the proposed examinations to fully evaluate the nature of the claims currently
alleged by plaintiff in this case which is set for trial next month.
Discussion
Code of Civil Procedure §2032.310 states in pertinent part:
(a) If any party desires to obtain discovery by a…mental examination, the party shall
obtain leave of court.
(b) A motion for an examination under subdivision (a) shall specify the time, place,
manner, conditions, scope, and nature of the examination, as well as the identity and the
specialty, if any, of the person or persons who will perform the examination. …
Code of Civil Procedure §2032.320 then provides in pertinent part:
(a) The court shall grant a motion for a…mental examination under Section 2032.310
only for good cause shown.
(b) If a party stipulates as provided in subdivision (c), the court shall not order a mental
examination of a person for whose personal injuries a recovery is being sought except on
a showing of exceptional circumstances.
(c) A stipulation by a party under this subdivision shall include both of the following:
(1) A stipulation that no claim is being made for mental and emotional distress over
and above that usually associated with the physical injuries claimed.
(2) A stipulation that no expert testimony regarding this usual mental and emotional
distress will be presented at trial in support of the claim for damages.
(d) An order granting a physical or mental examination shall specify the person or
persons who may perform the examination, as well as the time, place, manner, diagnostic
tests and procedures, conditions, scope, and nature of the examination.
(Underline added for emphasis.)
Based on the express language of §2032.320(a), this Court “shall grant” a motion for a mental
examination “only for good cause” but where a party stipulates under §2032.320(c) that (1) no
claim is being made for mental and emotional distress “over and above that usually associated
with the physical injuries claimed” and (2) no expert testimony regarding this “usual mental and
emotional distress” will be presented at trial, then a mental examination may be ordered only
upon a showing of “exceptional circumstances.” As the Court finds no stipulation from plaintiff
pursuant to §2032.320(c), an order compelling the proposed examination may be ordered here
upon a showing of “good cause” and the opposition’s contention that FTB must show some
“exceptional circumstance” is simply incorrect.
In the operative amended complaint filed on 9/29/2023, there are numerous allegations that
plaintiff has suffered emotional distress, nervousness, anxiety, stress and worry. (Am. Compl.,
¶¶70, 84, 98, 112, 126, 138.) Moreover, the nature of the emotional distress alleged here does
not appear to be limited to the “ordinary” mental and emotional distress “usually associated”
with the injuries claimed here as the complaint specifically alleges that FTB’s conduct has
caused plaintiff to experience “an endless cycle of poverty” (Id., at p.3:6-11; ¶38) and during her
ORDER re: Ruling on Submitted Matter Page 3 of 6
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Hall of Justice
deposition, plaintiff specifically testified to “heartache,” “stress,” feeling “unimportant,” loss of
appetite, and lack of desire to go to work (Pl. Depo, Vol. 1, pp.122-124). Although volume of
the deposition was taken in 2019, plaintiff has to date declined to stipulate that she has no
ongoing claim for the emotional and mental distress which is cited as justification for the
discovery proposed here. (See, Reply, p.2:14-18.) Regardless, plaintiff’s more recent deposition
testimony from September 2023 does not support a finding that the emotional distress attributed
to defendant has ceased but rather suggests this distress is actually ongoing. Based on this
evidentiary record, this Court concludes that FTB has established the requisite “good cause” to
conduct a mental examination relating to plaintiff’s emotional distress claims (unless and until
plaintiff provides a stipulation akin to that discussed in Code of Civil Procedure §2032.320(c).)
The other primary justification for the examination is that plaintiff maintains she can perform the
essential functions of her job if provided an accommodation for her claimed disability. In
actuality, this is a prima facie element of her disability discrimination and reasonable
accommodations claims. (See, e.g., CACI 2540, 2541.) Although the opposition asserts
defendant’s desire to evaluate plaintiff’s alleged learning disability and ability to perform the
essential functions of her job with or without an accommodation is not “contemplated by the
statute” (presumably referring to Code of Civil Procedure §2032.320), there is no language in
this statute which either imposes limits on the reasons or justifications for seeking to conduct a
mental examination or requires this Court to evaluate the proffered reasons or justifications
except in the context of determining whether “good cause” exists. Because plaintiff’s ability to
perform the essential functions of her job with or without accommodation for her claimed
disability is a threshold element of her disability discrimination and reasonable accommodations
claims, it stands to reason that the defendant employer should have a reasonable opportunity to
conduct discovery on this potentially dispositive issue.
The opposition’s assertion that plaintiff does not claim to have ongoing “severe” emotional
distress is inapposite since neither Code of Civil Procedure §2032.310 nor §2032.320 limits the
Court’s authority to permit a mental examination to only those cases where “severe” emotional
distress is claimed and neither statute suggests a certain minimal severity is required before
permitting such an examination. Instead, the statutes make clear that in the absence of a
stipulation under §2032.320(c), only “good cause” is necessary and this standard is not dictated
solely by the severity of the injury alleged. Plaintiff’s related argument that her emotional
distress is “self-evident” and that a psychiatric examination is not “necessary or required to
explain her emotional distress” is so ambiguous and conclusory as to carry little weight. The
reality is that plaintiff is making a variety of rather unique claims for which she seeks
compensatory damages and fundamental notions of due process entitle defendant to a reasonable
opportunity prior to trial to explore the nature and extent of damages for which it faces potential
liability.
Similarly, while the opposition claims the proposed examinations will intrude upon plaintiff’s
right to privacy and also cause her undue stress and anxiety, such concerns must be carefully
weighed against defendant’s own rights to due process and to conduct reasonable discovery prior
to trial. Especially since plaintiff herself can obviate most, if not all, of the claimed need for the
proposed examinations by providing a stipulation akin to that discussed §2032.320(c) but has to
date failed to do so, this Court concludes that there is “good cause” for the examinations and this
outweighs plaintiff’s own concerns about undergoing the proposed examinations.
ORDER re: Ruling on Submitted Matter Page 4 of 6
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Hall of Justice
Finally, Code of Civil Procedure §2032.310(b) specifies that “[a] motion for an
examination…shall specify the time, place, manner, conditions, scope, and nature of the
examination, as well as the identity and the specialty, if any, of the person or persons who will
perform the examination.” Although the moving papers could have and should have explicitly
complied with these requirements, the relevant information is nevertheless included in
defendant’s papers. The general parameters of the proposed examinations are set forth in the
moving papers at Pages 9:22-10:6 and Page 16:1-20; Exhibit 2 to the Curran Declaration, and the
two declarations by Drs. Smith and Carroll (which provide additional detail about the time
duration, manner, scope and nature of the examinations to be conducted by each). Finally, the
reply indicates that Dr. Smith is available to conduct the examination on April 18th or 19th and
Dr. Carroll is available on April 26th. While plaintiff argues that defendant did not supply any of
the required details of the proposed testing other than identifying the proposed examiners, the
Court finds that defendant has provided relevant information beyond the mere identity of the
examiners.
Because Code of Civil Procedure §2032.320(d) mandates that an order granting a mental
examination shall specify the person or persons who may perform the examination, as well as the
time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the
examination, the Court directs the parties to promptly meet-and-confer on these matters in order
to prepare a formal order consistent with this order and to facilitate the efficient completion of
the examinations contemplated herein. In the event the parties are unable to reach an agreement
on the specific tests and procedures to be performed and listed in the order itself, the
examinations shall be limited to those tests and procedures specifically enumerated in the
moving papers, including but not limited to the supporting declarations.
Disposition
For the reasons explained above, defendant FTB’s motion to compel plaintiff Bankett to submit
to the proposed mental examinations pursuant to Code of Civil Procedure §2032.310 et seq. is
GRANTED subject to the conditions and limitations noted above.
Pursuant to CRC Rule 3.1312, moving counsel shall prepare a proposed order in conformity with
the requirements of Code of Civil Procedure §2032.320(b) and any other applicable provision of
law.
If warranted, the parties shall also promptly meet-and-confer on a stipulated protective order to
govern the use and disclosure of any information or material provided or utilized during these
mental examinations.
This minute order is effective immediately. No formal order or other notice is required. (Code
Civ. Proc. §1019.5; CRC Rule 3.1312.)
(Continued on next page.)
ORDER re: Ruling on Submitted Matter Page 5 of 6
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO
Hall of Justice
SUBMITTED MATTER RULING:
The Court has considered the oral arguments of the parties. The Court hereby MODIFIES its tentative
ruling in one respect as follows. Plaintiff argued, as it did in its opposition brief, that the Defendant’s
proposed mental examinations should be limited to a specific period of time. At oral argument, Plaintiff
argued that the time period of inquiry should commence in 2007, when Plaintiff first applied to work for
Defendant. The Court adopts this time limitation as it applies to Dr. Carroll’s component of the
examination which, among other related questioning, is directed to Plaintiff’s complaints of emotional
distress and damages related thereto. The Court finds this time restriction to be appropriate both because
it provides a sufficiently substantial time period of inquiry to present and is also the year in which
Plaintiff was first hired by Defendant according to the Complaint. The Court does not apply this same
restriction to Dr. Smith’s component of the examination insofar that its purpose may require inquiry for
periods preceding 2007. Therefore, the Court AFFIRMS the tentative ruling with this modification.
Certificate of Mailing is attached.
ORDER re: Ruling on Submitted Matter Page 6 of 6
Reserved for Clerk’s File Stamp
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SACRAMENTO
COURTHOUSE ADDRESS:
Gordon D. Schaber Superior Court
720 Ninth Street, Sacramento, CA 95814
PLAINTIFF/PETITIONER:
Latonya Bankett
DEFENDANT/RESPONDENT:
California Franchise Tax Board et al
CASE NUMBER:
CERTIFICATE OF MAILING 34-2018-00241074-CU-OE-
GDS
I, the below-named Executive Officer/Clerk of the above-entitled court, do hereby certify that I am not a
party to the cause herein, and that on this date I served the Order re: Ruling on Submitted Matter upon
each party or counsel named below by placing the document for collection and mailing so as to cause it to
be deposited in the United States mail at the courthouse in Sacramento, California, one copy of the original
filed/entered herein in a separate sealed envelope to each address as shown below with the postage
thereon fully prepaid, in accordance with standard court practices.
Andrea Rosa James Francis Curran
The Rosa Law Group California Department of Justice
9300 W Stockton Boulevard, Suite 111 PO Box 944255
Elk Grove, CA 95758 Sacramento, CA 94244-2550
Dated: 04/11/2024 By:
CERTIFICATE OF MAILING
DECLARATION OF SERVICE BY E-MAIL
Case Name: LaTonya Bankett v. FTB, et al.
No.: 34-2018-00241074-CU-OE-GDS
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service with postage thereon fully prepaid that same day in the ordinary course of
business.
On April 11, 2024, I served the attached PROPOSED ORDER GRANTING FTB'S MOTION
TO COMPEL MENTAL EXAMINATIONS OF PAINTIFF by transmitting a true copy via
electronic mail addressed as follows:
Andrea Rosa, Esq.
The Rosa Law Group
9300 W. Stockton Boulevard, Suite 111
Elk Grove, CA 95758
E-mail Address:
andrea.rosa@therosalawgroup.com
Gaylord.phillips@therosalawgroup.com
I declare under penalty of perjury under the laws of the State of California and the United States
of America the foregoing is true and correct and that this declaration was executed on April 11,
2024, at Sacramento, California.
Christopher R. Irby S/ Christopher R. Irby
Declarant Signature
SA2018101607
38000921.docx
DECLARATION OF SERVICE BY MESSENGER
Case Name: LaTonya Bankett v. FTB, et al.
No.: 34-2018-00241074-CU-OE-GDS
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box
944255, Sacramento, CA 94244-2550.
On April 11, 2024, I caused the attached PROPOSED ORDER GRANTING FTB'S
MOTION TO COMPEL MENTAL EXAMINATIONS OF PAINTIFF to be personally
served by ACE ATTORNEY SERVICE by placing a true copy thereof for delivery to the
following person(s) at the address(es) as follows:
Andrea Rosa, Esq.
The Rosa Law Group
9300 W. Stockton Boulevard, Suite 111
Elk Grove, CA 95758
I declare under penalty of perjury under the laws of the State of California and the United States
of America the foregoing is true and correct and that this declaration was executed on April 11,
2024, at Sacramento, California.
Christopher R. Irby S/ Christopher R. Irby
Declarant Signature
SA2018101607
38000934.docx
From: James Curran
Sent: Tuesday, April 16, 2024 4:04 PM
To: Andrea Rosa
Cc: Shanae Buffington; Christopher Irby
Subject: RE: Bankett v. FTB
Andrea:
The points you are making illustrate why it is so regrettable that you did not meet or confer with us when we invited you
to do so concerning the time, place, manner and other specifics of these mental examinations, which forced us to have to
file a motion to compel them.
FTB responds further to your comments, in red, in your email of 2:27 p.m., below, again using the same paragraph
numbers:
1. The court in its ruling did not prohibit Dr. Smith from sharing the results of her testing or clinical interview with
Dr. Carroll despite the court limiting Dr. Carroll’s “component of the examination” to the period from 2007 to the
present.
2. Dr. Smith is the expert on what the American Psychological Association’s Code of Ethics contains. We cannot
ask her to violate her ethical duties. It is well known that forensic psychologists cannot share psychological
testing results with non-experts. Dr. Smith can share the results with your retained expert psychologist, Ona
Stiles, Ph.D, if Dr. Stiles so requests.
3. Both parties have agreed Plaintiff’s mother, Ms. Miller, may accompany Plaintiff to the examination location
(Imagine Reporting’s Sacramento office) but Ms. Miller may not be in the room with Plaintiff during either
examination.
4. I highly doubt we will need to ask Plaintiff to return for further examination by either Dr. Smith or Dr. Carroll
unless Plaintiff flatly refuses to cooperate or leaves early. We understand Plaintiff’s position that it would be
improper for her to have to do so unless she actively disrupts or terminates one or both examinations.
5. Dr. Carroll is not able to fly to the Sacramento area in the time we have available before our May 13 trial date. It
is not reasonable for Plaintiff to refuse to undergo his examination remotely under these circumstances. Most of
the time a deponent or examinee complains about having to be examined in person. I learned for the first time
today that you believe Plaintiff would “present” better in person. That, however, is not a good reason for refusing
to cooperate in a remote examination via Zoom. Again, this is what meeting and conferring is for.
6. I am confident we can agree to the terms of a protective order and invite you to draft one or to send me the
language you want for key sections, at least.
It is now past 4:00 p.m. I will submit to Department 53 the Proposed Order and this email chain pursuant to Calif. Rules
of Court, Rule 3.1312 (a). I note the court’s ruling contains the following guidance:
“In the event the parties are unable to reach an agreement on the specific tests and procedures to be performed and
listed in the order itself, the examinations shall be limited to those tests and procedures specifically enumerated in the
moving papers, including but not limited to the supporting declarations.” (Final Ruling, p. 5 of 6.)
Respectfully,
James F. Curran
Deputy Attorney General IV
Employment and Administrative Mandate Section
CALIFORNIA DEPARTMENT OF JUSTICE
1300 I Street, 16th Floor
Sacramento, CA 95814
1
Mobile: (916) 712-4042
Direct: (916) 210-6113
James.Curran@doj.ca.gov
(he/him/his)
From: Andrea Rosa
Sent: Tuesday, April 16, 2024 2:27 PM
To: James Curran
Subject: Re: Bankett v. FTB
EXTERNAL EMAIL: This message was sent from outside DOJ. Please do not click links or open attachments that appear suspicious.
See answers below in RED.
Andrea Rosa
THE ROSA LAW GROUP
9300 W. Stockton Blvd. Suite 111
Elk Grove, CA 95758
916-647-9425
From: James Curran
Sent: Tuesday, April 16, 2024 1:19 PM
To: Andrea Rosa
Subject: RE: Bankett v. FTB
Andrea:
FTB responds as follows to the requests you have made in your 10:36 a.m. email (using the same paragraph numbers):
1. FTB does not agree that the results of Dr. Smith’s examination or testing cannot be shared with Dr. Carroll. If
the court saw fit to restrict Dr. Smith’s examination in the way it limited Dr. Carroll’s, the court would have
included language doing so in its final ruling. The court expressly ordered otherwise. The whole point of Dr.
Smith’s examination is to provide the results of her testing and clinical interview to Dr. Carroll. Yes, but allowing
Dr. Smith to share the information obtained from Ms. Bankett, which could conceivably go back to her infant
days, with Dr. Carroll circumvents the entire purpose of limiting Dr. Carroll's to 2007 through present.
2. FTB does not agree to your request in Para. 2. Dr. Smith must obey the APA’s Ethics Code; There is nothing in
the code that supports your position that the audio of Ms. Bankett can only be used per the APA's Ethics Code.
3. FTB agrees to your request in Para. 3;
4. FTB agrees with your request in Para. 4 as long as the failure to complete either examination is not related to
Plaintiff’s participation in the examinations, i.e., the failure to complete either examination is not the result of
Plaintiff’s obstruction or refusal to cooperate; I am primarily concern with the Drs. not being able to get responses
from Ms. Bankett, either because she does not understand the questions or the words being spoken, that is her
disability, thus any request for yet another day of examination will not be appropriate.
5. Dr. Carroll is not able to travel to Sacramento to conduct his examination in person. If Plaintiff would prefer to
travel to the San Diego area at her own expense for the examination to take place in person, please let us
know. These types of examinations were commonly conducted remotely during the more severe parts of the
pandemic; We are no longer in the pandemic, a face-to-face examination of the type prescribed by Dr. Caroll
would be better for Ms. Bankett and would present a better picture of who she is.
6. FTB is amenable to a protective order. Please send a draft.
2
Please let me know whether you will agree to further discuss the above and maybe make some further changes to the
proposed order, otherwise, I will go before the court for a protective order.
Respectfully,
James F. Curran
Deputy Attorney General IV
Employment and Administrative Mandate Section
CALIFORNIA DEPARTMENT OF JUSTICE
1300 I Street, 16th Floor
Sacramento, CA 95814
Mobile: (916) 712-4042
Direct: (916) 210-6113
James.Curran@doj.ca.gov
(he/him/his)
From: Andrea Rosa
Sent: Tuesday, April 16, 2024 10:36 AM
To: James Curran
Subject: Re: Bankett v. FTB
EXTERNAL EMAIL: This message was sent from outside DOJ. Please do not click links or open attachments that appear suspicious.
Counsel -
Your proposal without a meet and confer is not in keeping with the court's order. Nevertheless, below
are Plaintiff's input and requirements for these examinations to move forward.
1. Furthermore, the results of Dr. Smith's examination cannot be provided to Dr. Carroll as Dr.
Smith's examination does not contain the time period limitation imposed by the court. [We
need to discuss this further.]
2. We also object to the audio tape of Ms. Bankett's examination to be provided exclusively to a
qualified expert retained by Plaintiff. What Ms. Bankett does with her own examination is her
business.
3. Plaintiff's mother will be at the Imaging offices as support for Ms. Bankett. We agree she
should not be in the room where the testing is being conducted unless the examiner's decides
it is necessary to continue the examination.
4. If for some reason the examiners cannot complete the examination within the time allocated,
Plaintiff will not sit for a another examination.
5. Plaintiff object's Dr. Carroll's examination being conducted via Zoom.
6. Plaintiff will be entitled to the raw data collected by the doctors in conducting the mental
examination.
7. We need to discuss protective orders of the information obtained by the doctors and
defendant.
Let me know your thoughts on the above points. I can draft language to insert into the
proposed order.
3
Andrea Rosa
THE ROSA LAW GROUP
9300 W. Stockton Blvd. Suite 111
Elk Grove, CA 95758
916-647-9425
From: James Curran
Sent: Monday, April 15, 2024 4:52 PM
To: Andrea Rosa
Cc: Shanae Buffington ; Christopher Irby
Subject: RE: Bankett v. FTB
Andrea:
We sent you the Proposed Order granting the motion to compel the mental examinations via my secretary Chris Irby’s
email of Thursday, August 11 at 3:53 p.m. Mr. Irby also attached to that email a cover letter explaining the process by
which you are to communicate, within five days, to us any reasons for disapproval of the Proposed Order pursuant to
California Rules of Court (CRC), Rule 3.1312(a).
The Proposed Order and August 11 cover letter were also hand-delivered to your office Thursday afternoon.
The Proposed Order specifies the persons who will perform the examinations, as well as their time, place, manner,
diagnostic tests and procedures, conditions, scope, and nature.
Accordingly, please email your suggested approval of the Proposed Order as drafted, or your reasons for disapproval.
We will send to the court, pursuant to CRC 3.1312(a), the Proposed Order and a summary of your requested revisions, if
any, tomorrow (the fifth day after we sent you the Proposed Order) at about 4:00 p.m.
As stated in the April 11 cover letter, failure to notify us within the time required shall be deemed an approval of the
Proposed Order as drafted. (CRC 3.1312 (a).)
Respectfully,
James F. Curran
Deputy Attorney General IV
Employment and Administrative Mandate Section
CALIFORNIA DEPARTMENT OF JUSTICE
1300 I Street, 16th Floor
Sacramento, CA 95814
Mobile: (916) 712-4042
Direct: (916) 210-6113
James.Curran@doj.ca.gov
(he/him/his)
From: Andrea Rosa
Sent: Monday, April 15, 2024 4:08 PM
To: James Curran ; Shanae Buffington
Subject: Bankett v. FTB
EXTERNAL EMAIL: This message was sent from outside DOJ. Please do not click links or open attachments that appear suspicious.
4
Counsel –
Per the courts ruling on April 11, 2024, the parties were ordered by the Court to meet-and-confer on these
matters in order to prepare a formal order consistent with this order and to facilitate the efficient completion of
the examinations contemplated herein. Those items include specifying the person or persons who may perform
the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and
nature of the examination. Please let me know when we could meet regarding this order.
Andrea Rosa
THE ROSA LAW GROUP
9300 W. Stockton Blvd. Ste. 111
Elk Grove, CA 95758
916-647-9425
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CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally
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use or disclosure is prohibited and may violate applicable laws including the Electronic Communications
Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the
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5
DECLARATION OF SERVICE BY E-MAIL
Case Name: LaTonya Bankett v. FTB, et al.
No.: 34-2018-00241074-CU-OE-GDS
I declare:
I am employed in the Office of the Attorney General, which is the office of a memb
Preview
Rob Bonta Attorney General 1300 I STREET, SUITE 125 P.O. BOX 944255 SACRAMENTO, CA 94244-2550 Public: (916) 445-9555 Telephone: (916) 210-6113 Facsimile: (916) 324-5567 E-Mail: James.Curran@doj.ca.gov April 16, 2024 Clerk of the Court Department 53 Superior Court of California County of Sacramento RE: LaTonya Bankett v. FTB, et al. Superior Court of California, County of Sacramento, Case No. 34-2018-00241074-CU- OE-GDS Dear Clerk: Defendant California Franchise Tax Board hereby submits, pursuant to California Rules of Court, Rule 3.1312: (1) the attached [Proposed] Order Granting FTB’s motion to Compel Mental Examinations of Plaintiff, (2) the final ruling issued by Judge Sueyoshi on the morning of April 11, 2024, and (3) an email chain setting forth Plaintiff’s counsel’s reasons for disapproval of the Proposed Order. /// County of Sacramento April 16, 2024 Page 2 Our office personally and electronically served the Proposed Order on Plaintiff’s counsel on Thursday, April 11, 2024. We are therefore submitting these materials because today is the fifth day after we did so. (See CRC, Rule 3.1312 (b) [“The prevailing party must, upon expiration of the five-day period provided for approval, promptly transmit the proposed order to the court together with a summary of any responses of the other parties or a statement that no responses were received.”].) Sincerely, �4�p-- JAMES F. CURRAN Deputy Attorney General For ROB BONTA Attorney General JFC: SA2018101607 38018284.docx 1 ROB BONTA Attorney General of California 2 KRISTIN M. DAILY Supervising Deputy Attorney General 3 JAMES F. CURRAN Deputy Attorney General 4 State Bar No. 142041 1300 I Street, Suite 125 5 P.O. Box 944255 Sacramento, CA 94244-2550 6 Telephone: (916) 210-6113 Fax: (916) 324-5567 7 E-mail: James.Curran@doj.ca.gov Attorneys for Defendant 8 California Franchise Tax Board 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 13 LATONYA BANKETT, Case No. 34-2018-00241074-CU-OE-GDS 14 Plaintiff, [PROPOSED] ORDER GRANTING 15 FTB'S MOTION TO COMPEL MENTAL v. EXAMINATIONS OF PLAINTIFF 16 Date: April 10, 2024 17 CALIFORNIA FRANCHISE TAX Time: 1:30 PM BOARD, Dept: 53 18 Judge: Hon. Richard K. Sueyoshi Defendants. Trial Date: May 13, 2024 19 Action Filed: September 20, 2018 20 21 Defendant Franchise Tax Board (FTB) filed, in February 2024, its MOTION FOR LEAVE 22 OF COURT TO COMPEL MENTAL EXAMINATIONS OF PLAINTIFF. Pursuant to 23 stipulation approved by the court, the hearing on the motion was postponed to April 10, 2024. 24 The court issued a tentative ruling granting the motion on April 9, 2024. Plaintiff requested oral 25 argument, and the motion came on for remote hearing in Department 53 during the court’s 1:30 26 p.m. law and motion calendar on April 10, 2024. Attorney Andrea Rosa of the Rosa Law Group 27 appeared on behalf of Plaintiff LaTonya Bankett. Deputy Attorneys General Shanae Buffington 28 and James Curran appeared on behalf of Defendant FTB. The court, having considered the 1 [Proposed] Order Granting Motion to Compel Mental Examinations of Plaintiff (34-2018-00241074-CU-OE-GDS) 1 moving and opposing papers and evidence submitted by both parties, and having heard the 2 arguments of counsel at the hearing, took the matter under submission, then issued its final ruling 3 (attached) on the morning of April 11, 2024, granting Defendant’s motion. 4 The court concludes FTB has established the requisite “good cause” to conduct two mental 5 examinations, one by Alexis Smith, PsyD, and one by Matthew Carroll, MD, relating to 6 plaintiff’s emotional distress claims and to evaluate Plaintiff’s alleged learning disability and 7 ability to perform the essential functions of her job with or without an accommodation. 8 THEREFORE, IT IS HEREBY ORDERED THAT: 9 EXAMINATION BY ALEXIS SMITH, PsyD 10 1. Plaintiff shall appear on April 19, 2024, at 9:30 a.m. for the mental examination by 11 Alexis Smith, PsyD at Imagine Reporting, 2870 Gateway Oaks Drive, Suite 106, Sacramento, 12 California 95833 ([916] 742.7478). Plaintiff shall not be joined by any person in the 13 examination room during the examination by Dr. Smith, 14 2. Dr. Smith’s examination shall include a first phase that will involve a battery of 15 psychological tests and neuropsychological tests described below that she will administer, score, 16 and interpret. Dr. Smith will also conduct a brief clinical interview. Dr. Smith’s portion of the 17 examination will compliment Dr. Carroll’s in-depth forensic psychiatric interview. 18 3. The test battery will include selective endorsement tests, or questionnaires, and a 19 projective test. Ms. Bankett’s responses will be compared to the normative data that have been 20 collected for a wide range of clinical and forensic respondents. The test battery will include the 21 following tests, none of which is invasive: 22 Tests of emotional functioning: 23 Minnesota Multiphasic Personality Inventory-Third Edition 24 Personality Assessment Inventory 25 Rorschach Performance Assessment System 26 Tests of neuropsychological functioning: 27 Test of Memory Malingering 28 Green's Word Memory Test 2 [Proposed] Order Granting Motion to Compel Mental Examinations of Plaintiff (34-2018-00241074-CU-OE-GDS) 1 Wechsler Adult Intelligence Scale-Fourth Edition 2 Fingertapping Test 3 Grooved Pegboard Test 4 Trail Making Test 5 Connor's Continuous Processing Test-Third Edition 6 Digit Vigilance Test 7 Wide Range Achievement Test-Fifth Edition 8 5. The clinical interview will take approximately one hour excluding appropriate breaks. 9 The psychological and neuropsychological testing will take approximately six hours excluding 10 appropriate breaks. Additional time will be allowed, if needed. Dr. Smith reserves the right to 11 add or subtract tests and test domains in response to information that she may receive about the 12 plaintiff as well as based upon her performance during the assessment. Dr. Smith’s 13 understanding is that Ms. Bankett has difficulty in responding to certain questions. If this 14 happens during Dr. Smith’s clinical interview of Ms. Bankett, the interview might take longer 15 than one hour. In no event, however, will the total examination, consisting of both the clinical 16 interview and testing, take longer than seven hours. The examination will take place in the 17 above-described court-reporting firm’s office, in a room that will be sufficiently quiet and free of 18 distractions so as not to unreasonably interfere with the interview process, and it will be 19 sufficiently private to avoid anyone outside the room from eavesdropping. The room will have a 20 table and chairs so that Ms. Bankett and Dr. Smith may sit across from each other during the 21 clinical interview and testing process. 22 6. Dr. Smith’s examination will not be videotaped. It may be audio-taped if desired, 23 however, any audio recording of the testing process will only be provided to a qualified expert 24 retained by Plaintiff, consistent with the Ethics Code of the American Psychological Association. 25 Plaintiff shall also have the option of audio-recording the examination, provided that no other 26 person besides Plaintiff shall be allowed in the examination room during the examination. 27 28 3 [Proposed] Order Granting Motion to Compel Mental Examinations of Plaintiff (34-2018-00241074-CU-OE-GDS) 1 EXAMINATION BY MATTHEW CARROLL, M.D. 2 1. Dr. Carroll will conduct his examination via videoconference (e.g., Zoom) and Plaintiff 3 shall participate in the examination via videoconference, on April 26, 2024, at 9:30 a.m., from a 4 conference room at Imagine Reporting’s Sacramento office, located at 2870 Gateway Oaks Drive, 5 Suite 106, Sacramento, California 95833 ([916] 742.7478). No other person shall be in the room 6 from which Plaintiff participates in the remote examination during the examination, provided 7 however that Imagine Reporting staff may enter the room before or during breaks in the 8 examination to set up or assist with the videoconference. 9 2. Dr. Carroll will conduct a clinical interview, but no testing. His examination will 10 consume a total of approximately six hours, exclusive of breaks, but in no event will his 11 examination exceed a total of seven hours, exclusive of breaks. The estimated hours of 12 examination should be adequate to ensure the accuracy of Dr. Carroll’s psychiatric diagnosis and 13 the correctness of his medical-legal opinions and conclusions, subject to Plaintiff’s cooperation, 14 good faith, and pace in answering interview questions. The estimated time for the clinical 15 interview should be sufficient, subject to the above-listed variables, for Dr. Carroll to ask follow- 16 up questions, if possible and appropriate, from earlier interview question responses. Subject to the 17 above-listed variables, the clinical interview should allow Plaintiff to supplement or correct any 18 information she has provided earlier in the examination. 19 3. Dr. Carroll will audio record the examination. Plaintiff shall also have the option of 20 audio-recording the examination, provided that no other person besides Plaintiff shall be allowed 21 in the examination room during the examination. No video recording of the examination shall be 22 allowed. 23 4. Dr. Carroll’s interview will involve an inquiry into Plaintiff Bankett’s current mental 24 status, cognitive functioning, the employment experiences that she alleges contributed to her 25 complaints of emotional distress, any medical or psychological treatment for symptoms from the 26 alleged distress, her experiences between the events on which this lawsuit is based and the time of 27 the evaluation to assess the stress factors contributory to continuing stress symptoms, and her past 28 personal history involving her family, significant developmental experiences, educational and 4 [Proposed] Order Granting Motion to Compel Mental Examinations of Plaintiff (34-2018-00241074-CU-OE-GDS) 1 occupational history, dating and marital history, litigation history, financial history, and past 2 medical and psychiatric history. Dr. Carroll’s examination concerning Plaintiff’s complaints of 3 emotional distress and damages related thereto shall be limited to the time period between 2007, 4 when Plaintiff first applied to work for Defendant, to the present. 5 REASONABLE COOPERATION 6 Counsel for both parties shall cooperate reasonably in all respects concerning all 7 arrangements for both of the above-described mental examinations. 8 Issued on April __, 2024 in Sacramento, California. 9 _____________________________ Hon. Richard K. Sueyoshi 10 Judge of the Superior Court 11 Approved as to Form on April __, 2024: 12 _____________________________ Andrea Rosa 13 Attorney for Plaintiff 14 SA2018101607, Proposed Order Granting FTB Motion to Compel Mental Examinations - 04 11 24 Draft 3.docx 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 [Proposed] Order Granting Motion to Compel Mental Examinations of Plaintiff (34-2018-00241074-CU-OE-GDS) SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Hall of Justice Latonya Bankett No. 34-2018-00241074-CU-OE- Plaintiff/Petitioner(s) GDS vs. California Franchise Tax Board et Date: 04/11/2024 al Time: 8:40 AM Defendant/Respondent(s) Dept: 53 Judge: Richard K. Sueyoshi ORDER re: Ruling on Submitted Matter The Court, having taken the matter under submission on 04/10/2024, now rules as follows: TENTATIVE RULING: Defendant California Franchise Tax Board’s (“FTB”) “Motion for Leave of Court to Compel Mental Examinations of Plaintiff” pursuant to Code of Civil Procedure §2032.310 is ruled upon as follows. Opposing counsel failed to comply with CRC Rule 3.1113(f), requiring a Table of Authorities and Table of Contents when the memorandum exceeds 10 paged. Factual Background This action arises out plaintiff’s employment with defendant FTB on a permanent but intermittent basis. Plaintiff claims to have a learning disability and the operative amended complaint generally alleges defendant FTB failed on several occasions to promote plaintiff and/or make her a full-time employee, ultimately reducing her hourly pay and keeping plaintiff in “an endless cycle of poverty” with low wages and limited benefits. The complaint purports to asserts a variety of discrimination and related claims (e.g., failure to accommodate, failure to engage in the interactive process, etc.) under the FEHA, along with an additional claim under the Labor Code for “Under Paid Wages” (the latter of which is the subject of a pending demurrer). Trial is currently set to commence on 5/13/2024. Moving Papers. Defendant FTB now moves for an order compelling plaintiff Bankett to submit to two mental examinations characterized as “one comprehensive mental examination” on the following grounds: (1) Plaintiff claims she is capable of performing the essential functions of her job with reasonable accommodation for her learning disability and has therefore placed her ability to perform those functions “in controversy;” (2) Plaintiff has placed her “mental and emotional condition” “in controversy” by alleging ongoing emotional distress in the form of “nervousness, anxiety, stress, and worry;” “pain and suffering;” heartache;” feeling “unimportant;” loss of appetite; and an inability to go to work; ORDER re: Ruling on Submitted Matter Page 1 of 6 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Hall of Justice (3) FTB cannot obtain the information concerning plaintiff’s mental condition by any means other than the proposed mental examination(s); (4) FTB’s ability to present evidence relating to its affirmative defenses will be “substantially reduced” without the proposed mental examination(s); (5) The scope of the proposed examinations is “tailored to allow complete but not overly invasive mental evaluations; and (6) Plaintiff has failed to stipulate to the proposed mental examinations and to engage in a good-faith meet-and-confer process about them. According to the moving papers, a forensic psychologist (Dr. Smith) will conduct a clinical interview of roughly one hour followed by roughly six hours of psychological testing (exclusive of breaks) and a forensic psychiatrist (Dr. Carroll) will conduct a more extensive but non- duplicative clinical interview (without testing) of roughly six hours (exclusive of breaks). Opposition. Plaintiff opposes, arguing that this motion should be denied for several reasons: (1) Plaintiff is not claiming she suffers from “severe” emotional distress or has ongoing “severe” emotional distress; (2) Defendant has failed to demonstrate any “exceptional circumstance” necessary to warrant a “psychiatric examination” and no “exceptional circumstance” exists; (3) Plaintiff’s emotional distress is “self-evident” and no psychiatric examination or testimony is “necessary or required to explain her emotional distress;” (4) Compelling plaintiff to submit to this examination and testing will result in “a substantial burden on a significantly learning[-]disabled Plaintiff by causing unjust and unnecessary intrusion upon her constitutional right to privacy and…family privacy, cause a significant increase in anxiety, as well as a time burden on Plaintiff and this Court at the time of trial;” and (5) Neither of the two distinct reasons cited by defendant for this mental examination (i.e., to evaluate plaintiff’s “emotional distress” and to confirm her learning disability which requires a reasonable accommodation) are “contemplated by the statute.” (Oppos., p.2:3-21.) The opposition further asserts that defendant has failed to demonstrate the requisite “good cause;” the emotional distress plaintiff suffered “was in the past and is not ongoing” (Oppos., p.4:24-25; p.6:10-11); the proposed examinations amount to an impermissible “fishing expedition” with no meaningful limitations; the motion does not comply with Code of Civil Procedure §2032.310(a) [sic] and does not provide specific details of tests to be performed (Id., at p.7:4-p.9:10); the tests proposed “have nothing whatsoever to do with anxiety, depression, or other emotional problems” (Id., at p.12:5-p.13:9); and this examination cannot be used to determine whether plaintiff should be provided a reasonable accommodation (Id., at p.13:10- p.14:14). Reply. FTB maintains that plaintiff has placed her mental condition at issue by alleging ongoing “emotional distress” in various forms and the opposition’s suggestion that this emotional distress is “self-evident” and “not severe” is irrelevant to the present motion, as defendant should have an opportunity to assess plaintiff’s claim, its causation and the treatment for same. While the opposition also takes issue with the scope of the examinations, it was plaintiff’s own counsel who refused to engage in a meet-and-confer process to work out the details and who still refuses ORDER re: Ruling on Submitted Matter Page 2 of 6 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Hall of Justice to stipulate there is no claim for ongoing emotional distress. Under such circumstances, FTB is entitled to conduct the proposed examinations to fully evaluate the nature of the claims currently alleged by plaintiff in this case which is set for trial next month. Discussion Code of Civil Procedure §2032.310 states in pertinent part: (a) If any party desires to obtain discovery by a…mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. … Code of Civil Procedure §2032.320 then provides in pertinent part: (a) The court shall grant a motion for a…mental examination under Section 2032.310 only for good cause shown. (b) If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances. (c) A stipulation by a party under this subdivision shall include both of the following: (1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed. (2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages. (d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. (Underline added for emphasis.) Based on the express language of §2032.320(a), this Court “shall grant” a motion for a mental examination “only for good cause” but where a party stipulates under §2032.320(c) that (1) no claim is being made for mental and emotional distress “over and above that usually associated with the physical injuries claimed” and (2) no expert testimony regarding this “usual mental and emotional distress” will be presented at trial, then a mental examination may be ordered only upon a showing of “exceptional circumstances.” As the Court finds no stipulation from plaintiff pursuant to §2032.320(c), an order compelling the proposed examination may be ordered here upon a showing of “good cause” and the opposition’s contention that FTB must show some “exceptional circumstance” is simply incorrect. In the operative amended complaint filed on 9/29/2023, there are numerous allegations that plaintiff has suffered emotional distress, nervousness, anxiety, stress and worry. (Am. Compl., ¶¶70, 84, 98, 112, 126, 138.) Moreover, the nature of the emotional distress alleged here does not appear to be limited to the “ordinary” mental and emotional distress “usually associated” with the injuries claimed here as the complaint specifically alleges that FTB’s conduct has caused plaintiff to experience “an endless cycle of poverty” (Id., at p.3:6-11; ¶38) and during her ORDER re: Ruling on Submitted Matter Page 3 of 6 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Hall of Justice deposition, plaintiff specifically testified to “heartache,” “stress,” feeling “unimportant,” loss of appetite, and lack of desire to go to work (Pl. Depo, Vol. 1, pp.122-124). Although volume of the deposition was taken in 2019, plaintiff has to date declined to stipulate that she has no ongoing claim for the emotional and mental distress which is cited as justification for the discovery proposed here. (See, Reply, p.2:14-18.) Regardless, plaintiff’s more recent deposition testimony from September 2023 does not support a finding that the emotional distress attributed to defendant has ceased but rather suggests this distress is actually ongoing. Based on this evidentiary record, this Court concludes that FTB has established the requisite “good cause” to conduct a mental examination relating to plaintiff’s emotional distress claims (unless and until plaintiff provides a stipulation akin to that discussed in Code of Civil Procedure §2032.320(c).) The other primary justification for the examination is that plaintiff maintains she can perform the essential functions of her job if provided an accommodation for her claimed disability. In actuality, this is a prima facie element of her disability discrimination and reasonable accommodations claims. (See, e.g., CACI 2540, 2541.) Although the opposition asserts defendant’s desire to evaluate plaintiff’s alleged learning disability and ability to perform the essential functions of her job with or without an accommodation is not “contemplated by the statute” (presumably referring to Code of Civil Procedure §2032.320), there is no language in this statute which either imposes limits on the reasons or justifications for seeking to conduct a mental examination or requires this Court to evaluate the proffered reasons or justifications except in the context of determining whether “good cause” exists. Because plaintiff’s ability to perform the essential functions of her job with or without accommodation for her claimed disability is a threshold element of her disability discrimination and reasonable accommodations claims, it stands to reason that the defendant employer should have a reasonable opportunity to conduct discovery on this potentially dispositive issue. The opposition’s assertion that plaintiff does not claim to have ongoing “severe” emotional distress is inapposite since neither Code of Civil Procedure §2032.310 nor §2032.320 limits the Court’s authority to permit a mental examination to only those cases where “severe” emotional distress is claimed and neither statute suggests a certain minimal severity is required before permitting such an examination. Instead, the statutes make clear that in the absence of a stipulation under §2032.320(c), only “good cause” is necessary and this standard is not dictated solely by the severity of the injury alleged. Plaintiff’s related argument that her emotional distress is “self-evident” and that a psychiatric examination is not “necessary or required to explain her emotional distress” is so ambiguous and conclusory as to carry little weight. The reality is that plaintiff is making a variety of rather unique claims for which she seeks compensatory damages and fundamental notions of due process entitle defendant to a reasonable opportunity prior to trial to explore the nature and extent of damages for which it faces potential liability. Similarly, while the opposition claims the proposed examinations will intrude upon plaintiff’s right to privacy and also cause her undue stress and anxiety, such concerns must be carefully weighed against defendant’s own rights to due process and to conduct reasonable discovery prior to trial. Especially since plaintiff herself can obviate most, if not all, of the claimed need for the proposed examinations by providing a stipulation akin to that discussed §2032.320(c) but has to date failed to do so, this Court concludes that there is “good cause” for the examinations and this outweighs plaintiff’s own concerns about undergoing the proposed examinations. ORDER re: Ruling on Submitted Matter Page 4 of 6 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Hall of Justice Finally, Code of Civil Procedure §2032.310(b) specifies that “[a] motion for an examination…shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” Although the moving papers could have and should have explicitly complied with these requirements, the relevant information is nevertheless included in defendant’s papers. The general parameters of the proposed examinations are set forth in the moving papers at Pages 9:22-10:6 and Page 16:1-20; Exhibit 2 to the Curran Declaration, and the two declarations by Drs. Smith and Carroll (which provide additional detail about the time duration, manner, scope and nature of the examinations to be conducted by each). Finally, the reply indicates that Dr. Smith is available to conduct the examination on April 18th or 19th and Dr. Carroll is available on April 26th. While plaintiff argues that defendant did not supply any of the required details of the proposed testing other than identifying the proposed examiners, the Court finds that defendant has provided relevant information beyond the mere identity of the examiners. Because Code of Civil Procedure §2032.320(d) mandates that an order granting a mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination, the Court directs the parties to promptly meet-and-confer on these matters in order to prepare a formal order consistent with this order and to facilitate the efficient completion of the examinations contemplated herein. In the event the parties are unable to reach an agreement on the specific tests and procedures to be performed and listed in the order itself, the examinations shall be limited to those tests and procedures specifically enumerated in the moving papers, including but not limited to the supporting declarations. Disposition For the reasons explained above, defendant FTB’s motion to compel plaintiff Bankett to submit to the proposed mental examinations pursuant to Code of Civil Procedure §2032.310 et seq. is GRANTED subject to the conditions and limitations noted above. Pursuant to CRC Rule 3.1312, moving counsel shall prepare a proposed order in conformity with the requirements of Code of Civil Procedure §2032.320(b) and any other applicable provision of law. If warranted, the parties shall also promptly meet-and-confer on a stipulated protective order to govern the use and disclosure of any information or material provided or utilized during these mental examinations. This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.) (Continued on next page.) ORDER re: Ruling on Submitted Matter Page 5 of 6 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO Hall of Justice SUBMITTED MATTER RULING: The Court has considered the oral arguments of the parties. The Court hereby MODIFIES its tentative ruling in one respect as follows. Plaintiff argued, as it did in its opposition brief, that the Defendant’s proposed mental examinations should be limited to a specific period of time. At oral argument, Plaintiff argued that the time period of inquiry should commence in 2007, when Plaintiff first applied to work for Defendant. The Court adopts this time limitation as it applies to Dr. Carroll’s component of the examination which, among other related questioning, is directed to Plaintiff’s complaints of emotional distress and damages related thereto. The Court finds this time restriction to be appropriate both because it provides a sufficiently substantial time period of inquiry to present and is also the year in which Plaintiff was first hired by Defendant according to the Complaint. The Court does not apply this same restriction to Dr. Smith’s component of the examination insofar that its purpose may require inquiry for periods preceding 2007. Therefore, the Court AFFIRMS the tentative ruling with this modification. Certificate of Mailing is attached. ORDER re: Ruling on Submitted Matter Page 6 of 6 Reserved for Clerk’s File Stamp SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO COURTHOUSE ADDRESS: Gordon D. Schaber Superior Court 720 Ninth Street, Sacramento, CA 95814 PLAINTIFF/PETITIONER: Latonya Bankett DEFENDANT/RESPONDENT: California Franchise Tax Board et al CASE NUMBER: CERTIFICATE OF MAILING 34-2018-00241074-CU-OE- GDS I, the below-named Executive Officer/Clerk of the above-entitled court, do hereby certify that I am not a party to the cause herein, and that on this date I served the Order re: Ruling on Submitted Matter upon each party or counsel named below by placing the document for collection and mailing so as to cause it to be deposited in the United States mail at the courthouse in Sacramento, California, one copy of the original filed/entered herein in a separate sealed envelope to each address as shown below with the postage thereon fully prepaid, in accordance with standard court practices. Andrea Rosa James Francis Curran The Rosa Law Group California Department of Justice 9300 W Stockton Boulevard, Suite 111 PO Box 944255 Elk Grove, CA 95758 Sacramento, CA 94244-2550 Dated: 04/11/2024 By: CERTIFICATE OF MAILING DECLARATION OF SERVICE BY E-MAIL Case Name: LaTonya Bankett v. FTB, et al. No.: 34-2018-00241074-CU-OE-GDS I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On April 11, 2024, I served the attached PROPOSED ORDER GRANTING FTB'S MOTION TO COMPEL MENTAL EXAMINATIONS OF PAINTIFF by transmitting a true copy via electronic mail addressed as follows: Andrea Rosa, Esq. The Rosa Law Group 9300 W. Stockton Boulevard, Suite 111 Elk Grove, CA 95758 E-mail Address: andrea.rosa@therosalawgroup.com Gaylord.phillips@therosalawgroup.com I declare under penalty of perjury under the laws of the State of California and the United States of America the foregoing is true and correct and that this declaration was executed on April 11, 2024, at Sacramento, California. Christopher R. Irby S/ Christopher R. Irby Declarant Signature SA2018101607 38000921.docx DECLARATION OF SERVICE BY MESSENGER Case Name: LaTonya Bankett v. FTB, et al. No.: 34-2018-00241074-CU-OE-GDS I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550. On April 11, 2024, I caused the attached PROPOSED ORDER GRANTING FTB'S MOTION TO COMPEL MENTAL EXAMINATIONS OF PAINTIFF to be personally served by ACE ATTORNEY SERVICE by placing a true copy thereof for delivery to the following person(s) at the address(es) as follows: Andrea Rosa, Esq. The Rosa Law Group 9300 W. Stockton Boulevard, Suite 111 Elk Grove, CA 95758 I declare under penalty of perjury under the laws of the State of California and the United States of America the foregoing is true and correct and that this declaration was executed on April 11, 2024, at Sacramento, California. Christopher R. Irby S/ Christopher R. Irby Declarant Signature SA2018101607 38000934.docx From: James Curran Sent: Tuesday, April 16, 2024 4:04 PM To: Andrea Rosa Cc: Shanae Buffington; Christopher Irby Subject: RE: Bankett v. FTB Andrea: The points you are making illustrate why it is so regrettable that you did not meet or confer with us when we invited you to do so concerning the time, place, manner and other specifics of these mental examinations, which forced us to have to file a motion to compel them. FTB responds further to your comments, in red, in your email of 2:27 p.m., below, again using the same paragraph numbers: 1. The court in its ruling did not prohibit Dr. Smith from sharing the results of her testing or clinical interview with Dr. Carroll despite the court limiting Dr. Carroll’s “component of the examination” to the period from 2007 to the present. 2. Dr. Smith is the expert on what the American Psychological Association’s Code of Ethics contains. We cannot ask her to violate her ethical duties. It is well known that forensic psychologists cannot share psychological testing results with non-experts. Dr. Smith can share the results with your retained expert psychologist, Ona Stiles, Ph.D, if Dr. Stiles so requests. 3. Both parties have agreed Plaintiff’s mother, Ms. Miller, may accompany Plaintiff to the examination location (Imagine Reporting’s Sacramento office) but Ms. Miller may not be in the room with Plaintiff during either examination. 4. I highly doubt we will need to ask Plaintiff to return for further examination by either Dr. Smith or Dr. Carroll unless Plaintiff flatly refuses to cooperate or leaves early. We understand Plaintiff’s position that it would be improper for her to have to do so unless she actively disrupts or terminates one or both examinations. 5. Dr. Carroll is not able to fly to the Sacramento area in the time we have available before our May 13 trial date. It is not reasonable for Plaintiff to refuse to undergo his examination remotely under these circumstances. Most of the time a deponent or examinee complains about having to be examined in person. I learned for the first time today that you believe Plaintiff would “present” better in person. That, however, is not a good reason for refusing to cooperate in a remote examination via Zoom. Again, this is what meeting and conferring is for. 6. I am confident we can agree to the terms of a protective order and invite you to draft one or to send me the language you want for key sections, at least. It is now past 4:00 p.m. I will submit to Department 53 the Proposed Order and this email chain pursuant to Calif. Rules of Court, Rule 3.1312 (a). I note the court’s ruling contains the following guidance: “In the event the parties are unable to reach an agreement on the specific tests and procedures to be performed and listed in the order itself, the examinations shall be limited to those tests and procedures specifically enumerated in the moving papers, including but not limited to the supporting declarations.” (Final Ruling, p. 5 of 6.) Respectfully, James F. Curran Deputy Attorney General IV Employment and Administrative Mandate Section CALIFORNIA DEPARTMENT OF JUSTICE 1300 I Street, 16th Floor Sacramento, CA 95814 1 Mobile: (916) 712-4042 Direct: (916) 210-6113 James.Curran@doj.ca.gov (he/him/his) From: Andrea Rosa Sent: Tuesday, April 16, 2024 2:27 PM To: James Curran Subject: Re: Bankett v. FTB EXTERNAL EMAIL: This message was sent from outside DOJ. Please do not click links or open attachments that appear suspicious. See answers below in RED. Andrea Rosa THE ROSA LAW GROUP 9300 W. Stockton Blvd. Suite 111 Elk Grove, CA 95758 916-647-9425 From: James Curran Sent: Tuesday, April 16, 2024 1:19 PM To: Andrea Rosa Subject: RE: Bankett v. FTB Andrea: FTB responds as follows to the requests you have made in your 10:36 a.m. email (using the same paragraph numbers): 1. FTB does not agree that the results of Dr. Smith’s examination or testing cannot be shared with Dr. Carroll. If the court saw fit to restrict Dr. Smith’s examination in the way it limited Dr. Carroll’s, the court would have included language doing so in its final ruling. The court expressly ordered otherwise. The whole point of Dr. Smith’s examination is to provide the results of her testing and clinical interview to Dr. Carroll. Yes, but allowing Dr. Smith to share the information obtained from Ms. Bankett, which could conceivably go back to her infant days, with Dr. Carroll circumvents the entire purpose of limiting Dr. Carroll's to 2007 through present. 2. FTB does not agree to your request in Para. 2. Dr. Smith must obey the APA’s Ethics Code; There is nothing in the code that supports your position that the audio of Ms. Bankett can only be used per the APA's Ethics Code. 3. FTB agrees to your request in Para. 3; 4. FTB agrees with your request in Para. 4 as long as the failure to complete either examination is not related to Plaintiff’s participation in the examinations, i.e., the failure to complete either examination is not the result of Plaintiff’s obstruction or refusal to cooperate; I am primarily concern with the Drs. not being able to get responses from Ms. Bankett, either because she does not understand the questions or the words being spoken, that is her disability, thus any request for yet another day of examination will not be appropriate. 5. Dr. Carroll is not able to travel to Sacramento to conduct his examination in person. If Plaintiff would prefer to travel to the San Diego area at her own expense for the examination to take place in person, please let us know. These types of examinations were commonly conducted remotely during the more severe parts of the pandemic; We are no longer in the pandemic, a face-to-face examination of the type prescribed by Dr. Caroll would be better for Ms. Bankett and would present a better picture of who she is. 6. FTB is amenable to a protective order. Please send a draft. 2 Please let me know whether you will agree to further discuss the above and maybe make some further changes to the proposed order, otherwise, I will go before the court for a protective order. Respectfully, James F. Curran Deputy Attorney General IV Employment and Administrative Mandate Section CALIFORNIA DEPARTMENT OF JUSTICE 1300 I Street, 16th Floor Sacramento, CA 95814 Mobile: (916) 712-4042 Direct: (916) 210-6113 James.Curran@doj.ca.gov (he/him/his) From: Andrea Rosa Sent: Tuesday, April 16, 2024 10:36 AM To: James Curran Subject: Re: Bankett v. FTB EXTERNAL EMAIL: This message was sent from outside DOJ. Please do not click links or open attachments that appear suspicious. Counsel - Your proposal without a meet and confer is not in keeping with the court's order. Nevertheless, below are Plaintiff's input and requirements for these examinations to move forward. 1. Furthermore, the results of Dr. Smith's examination cannot be provided to Dr. Carroll as Dr. Smith's examination does not contain the time period limitation imposed by the court. [We need to discuss this further.] 2. We also object to the audio tape of Ms. Bankett's examination to be provided exclusively to a qualified expert retained by Plaintiff. What Ms. Bankett does with her own examination is her business. 3. Plaintiff's mother will be at the Imaging offices as support for Ms. Bankett. We agree she should not be in the room where the testing is being conducted unless the examiner's decides it is necessary to continue the examination. 4. If for some reason the examiners cannot complete the examination within the time allocated, Plaintiff will not sit for a another examination. 5. Plaintiff object's Dr. Carroll's examination being conducted via Zoom. 6. Plaintiff will be entitled to the raw data collected by the doctors in conducting the mental examination. 7. We need to discuss protective orders of the information obtained by the doctors and defendant. Let me know your thoughts on the above points. I can draft language to insert into the proposed order. 3 Andrea Rosa THE ROSA LAW GROUP 9300 W. Stockton Blvd. Suite 111 Elk Grove, CA 95758 916-647-9425 From: James Curran Sent: Monday, April 15, 2024 4:52 PM To: Andrea Rosa Cc: Shanae Buffington ; Christopher Irby Subject: RE: Bankett v. FTB Andrea: We sent you the Proposed Order granting the motion to compel the mental examinations via my secretary Chris Irby’s email of Thursday, August 11 at 3:53 p.m. Mr. Irby also attached to that email a cover letter explaining the process by which you are to communicate, within five days, to us any reasons for disapproval of the Proposed Order pursuant to California Rules of Court (CRC), Rule 3.1312(a). The Proposed Order and August 11 cover letter were also hand-delivered to your office Thursday afternoon. The Proposed Order specifies the persons who will perform the examinations, as well as their time, place, manner, diagnostic tests and procedures, conditions, scope, and nature. Accordingly, please email your suggested approval of the Proposed Order as drafted, or your reasons for disapproval. We will send to the court, pursuant to CRC 3.1312(a), the Proposed Order and a summary of your requested revisions, if any, tomorrow (the fifth day after we sent you the Proposed Order) at about 4:00 p.m. As stated in the April 11 cover letter, failure to notify us within the time required shall be deemed an approval of the Proposed Order as drafted. (CRC 3.1312 (a).) Respectfully, James F. Curran Deputy Attorney General IV Employment and Administrative Mandate Section CALIFORNIA DEPARTMENT OF JUSTICE 1300 I Street, 16th Floor Sacramento, CA 95814 Mobile: (916) 712-4042 Direct: (916) 210-6113 James.Curran@doj.ca.gov (he/him/his) From: Andrea Rosa Sent: Monday, April 15, 2024 4:08 PM To: James Curran ; Shanae Buffington Subject: Bankett v. FTB EXTERNAL EMAIL: This message was sent from outside DOJ. Please do not click links or open attachments that appear suspicious. 4 Counsel – Per the courts ruling on April 11, 2024, the parties were ordered by the Court to meet-and-confer on these matters in order to prepare a formal order consistent with this order and to facilitate the efficient completion of the examinations contemplated herein. Those items include specifying the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. Please let me know when we could meet regarding this order. Andrea Rosa THE ROSA LAW GROUP 9300 W. Stockton Blvd. Ste. 111 Elk Grove, CA 95758 916-647-9425 CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication. CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication. 5 DECLARATION OF SERVICE BY E-MAIL Case Name: LaTonya Bankett v. FTB, et al. No.: 34-2018-00241074-CU-OE-GDS I declare: I am employed in the Office of the Attorney General, which is the office of a memb