Preview
Ma
MARCIE ISOM FITZSIMMONS (SBN: 226906)
AMBER .A. EKLOF E
GORDON REES
(SBN: 305750)
SCULLY MANSUKHANI, LLP F ET%
4
3
275 Battery Street, Suite 2000 SAN MA W0 CQL NTY
San Francisco, CA 94111 UcT 2 6 2018
Telephone: (415) 986-5900
Facsimile: (415) 986-8054
misom@grsm.com
aeklof@grsm.com
FAX
Attorneys for Defendant 17— GlV—(1457u .
gY TRUSTEES OF THE LELAND MPAS
Memorandumof
__ -
m
‘
Sup;
Points and Authorities
STANFORD JUNIOR UNIVERSITY, erroneously sued as
THE LELAND STANFORD JUNIOR UNIVERSITY
”“iiiumumlmuum
SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SAN MATEO
LLP
11 ALI TAGHAVI, an individual, CASE NO. 17CIV04570
2000
12 Plaintiff, DEFENDANT STANFORD
94111
Mansukhani,
UNIVERSITY’S REPLY BRIEF IN
Suite
13 vs. SUPPORT OF ITS MOTION TO
CA
COMPEL PLAINTIFF’S
Street, 14 THE LELAND STANFORD JUNIOR PSYCHIATRIC INDEPENDENT
Scully
Francisco,
UNIVERSITY, a California nonprofit MEDICAL EXAMINATION
Vvvvvvvvvvvvv
15 corporation, doing business as STANFORD
Battery
Rees
UNIVERSITY; ALTICOR, INC, a Michigan
San 16 corporation; and DOES 1-10, inclusive, Date: November 6,2018
275 Time: 9:00 am.
Gordon
17 Defendants. Dept: Law and Motion
18
19 I. INTRODUCTION
20 Plaintiffs Opposition to Defendants’ motion to compel his independent psychiatric
21 medical examination (“IME”) is full of hyperbole, and light on supported facts or law. In his
22 Opposition, Plaintiff unsuccessfully attempts to recast his prior sworn testimony and discovery
23 responses that clearly indicate that he suffers (or alleges to suffer) Mg severe emotional
24 distress purportedly caused by Defendants by suggesting that his testimony was somehow
25 influenced by his recent termination from another employer. However, Plaintiff utterly fails to
26 dispute that good cause exists for an IME. To the contrary, even a cursory review of Plaintiff’s
27 deposition testimony and discovery responses indicate that an IME is warranted because
28 Plaintiff’s mental condition is very much in controversy and good cause exists. Plaintiff cannot
-1-
DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
now try to downplay and artificially attempt to limit his alleged emfitional distress for the
strategic purpose of avoiding an IME. "
Settled law provides that Defendant isentitled t0 a psychiatric examination of Plaintiff in
llight ofthe evidence ofthe continuing and extraordinary nature of his claimed emotional
distress. Accordingly, the Court should grant Defendant’s motion and compel Plaintiff to submit
to thé IIVIE with Dr. Strassberg on a mutually convenient date before the close of discovery.
II. LEGAL ARGUMENT
\DOOQQ
A. If Anyone Failed to,Adquatelv Meet and Confer? It Was Plaintiff
Defendant made “a reasonable and good faith attempt” to arrange for'the mental
10 examination by stipulation prior to filing this motion. (Code Civ. Pro. § 2032.3 10(b).)
LLP
11 Plaintiff’s suggestion that Defendant’s motion should be denied bec‘ause Defendant failed to
v
2000
12 adequately meet and confer isuntenable, unsupported, and disingenuous.
94111
Mansukhani,
Suite
13 As set forth in Defendant’s motion, Defendant attempted seVeral times (September 21,
CA
Street, 14 26, and 27) to meet and confer with Plaintiff’s counsel, but he refused to stipulate to the
ScullyFrancisco,
15 examination. (Fitzsimmons Decl. 115.) Defendant’s counsel sent Plaintiff s counsel a proposed
Battery
Rees
San 16 stipulation on September 26 that appeared to be consistent with the :majority of his “conditions”
275
Gordon
17 for the examination, but he never responded, despite Defendant’s counsel’s follow up to him the
18 following day. (Id.) Plaintiffs counsel did not even respond after Deféndant filed itsmotion to
19 compel. Defendant more than met itsobligations to attempt to arrange for the examination by
20 stipulation prior to filing this motion.
21 B. Plaintiff Cannot Now Degv Hi_s Ongoing Emotional Distress To Avoid an
IME
22
Plaintiff’s mental condition cannot be taken out 0f controvefsy simply because, for
23
strategic reasons, he no longer claims to be suffering from continuing emotional distress. (See
24
e.g.Lytel v. Simpson, 2006 U.S. Dist. LEXIS 53927 (N.D. Cal. July 21, 2006);. see also Reuters
25
v.Superior Court, (1979) 93 Cal.App.3d 335, 337 [holding that becéuSe section 2032 is based on
26
Federal Rule 35, judicial construction ofthe federal rule may be useful in construing section
27
2032].) In Lytel, the plaintiff argued that there was no “good cause” for the IME because she
28
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DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
only alleged “garden variety” emotional distre‘ss,did not plan on designating an expert to testify
about her mental condition, and agreed to abandon her emotional distress claim. (Id. at 14.) The
District Court granted the defendant’s motion to compel an IME, holding that “good cause”
existed given the conflicts in the record about the plaintiff’s alleged emotional distress,
indicating that plaintiff was denying ongoing emotional distress for “strategic” reasons. (161.)
The court explained:
[W]here there isin fact continuing distress and only a strategic decision by an
individual to place a temporal limit to her claim of damages for such distress, the
distress still exists and observation of the individual by a medical examiner does
provide a level of information that is not available from prior medical records and
the deposition testimony from the treating physician.
10
LLP
11 (Id.) The court also concluded that denying the defendant’s motion for an IME “would deprive
2000
12 [defendant] of a fair opportunity to defend against [plaintiff s] claims of emotional distress...”
94111
Mansukhani,
Suite
13 (Id. at 17.) Moreover, even though the plaintiff in Lytel agreed to abandon the emotional distress
CA
Street, 14 claim completely, the court stillfound that the plaintiff’s mental state was in controversy due to
ScullyFrancisco,
15 her ongoing symptoms. (Id.)
Battery
Rees
San 16 For the first time during a year of litigation, Plaintiff asserts in his Opposition (not even
275
Gordon
17 by way of a declaration from Plaintiff) that he “is making no claim for mental or emotional
18 distress over and above what normally would attend the type of wrongful termination alleged in
19 the complaint” and that he does not plan to disclose a psychiatric expert. (Opp. 3227-422.)
20 Plaintiff’s unsupported representation isinsufficient to avoid an IME, particularly in light of the
21 exceptional and contradictory allegations that Plaintiff is making in this case. Similar to Lytel,
22 Plaintiff has apparently made a strategic decision t0 artificially limit and downplay his alleged
23 emotional distress in an attempt t0 avoid an IME, but he has yet to negate, withdraw or correct
24 his prior assertions of actual ongoing emotional distress in the pleadings, deposition testimony,
25 and discovery responses. As it stands, Plaintiff asserts a claim for unusually severe and ongoing
26 emotional distress over and above that which is usually associated with claims for wrongful
27 termination and discrimination. (See e.g. Exhibit 3 to Fitzsimmons Decl. [plaintiff testified he
28 suffered severe depression and anxiety, was unable to leave his bed for “days and days and
-3-
DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
days,” wakes up feeling “paralyzed,” and has symptoms “akin to PTSD,” that he has never
previously experienced].)
C. A Mental Examination 0f Plaintiff Is Authorized Because Plaintiff Claims
Continued Severe Emotional Distress as a Result of Defendant’s Conduct
and There Is Good Cause for Such Examination
A court is authorized to order a mental examination of a party to the action when (1) the
mental condition of that party is “in controversy in the action” and (2) the moving party shows
“good cause” for such examination. (Code Civ. Pro. § 2032.320)
Plaintiff does not appear to dispute that his mental condition is “in controversy.” Without
any support (factual or legal) and without addressing any of Defendant’s arguments, however,
10 Plaintiff claims that Defendant has failed to demonstrate good cause. If ever good cause existed,
11 it’sin this case.
LLP
2000
12 Good cause exists for a mental examination of a plaintiff where he seeks recovery for
94111
Mansukhani,
Suite
13 continuing severe emotional distress, his mental condition is directly related to his emotional
CA
Street, 14 distress claim, and the information is necessary to a fair resolution ofthe lawsuit. (Vinson,
ScullyFrancisco,
15 supra, 43 Cal.3d at 842 [citing Britt v. Superior Court, (1978) 20 Cal.3d 844, 859].) Such is
Battery
Rees
San 16 precisely the case here. Plaintiff claims that Defendant has caused him to suffer continuing
275
Gordon
17 significant emotional distress, which he stillexperiences. (Exhibits 2-3 to Fitzsimmons Decl.)
18 He claims he suffers from depression, anxiety, he “shuts down” when he thinks about Stanford,
19 that he gets “very emotional,” and that his symptoms are “akin t0 PTSD.” (Exhibit 3 to
20 Fitzsimmons Decl.) He claims that isthe first time in his life that he experienced that level of
21 anxiety and depression and claims that he stillhas those symptoms t0 this day. (Id.) Plaintiff‘s
22 pleadings, discovery responses, and deposition testimony establish without a doubt, Plaintiff s
23 claim for continuing severe emotional distress. Under these circumstances, this Court isclearly
24 authorized to grant Defendant’s request for a court ordered mental examination of Plaintiff.
25 Curiously, Plaintiff s counsel now tries to excuse Plaintiff s testimony about his
26 emotional distress by stating that Plaintiff’s deposition testimony about his extensive emotional
27 distress was “affected by his recent separation from his then current employer.” (Opp. 3:19—21.)
28 Not only did Plaintiff fail t0 make any revisions to his deposition testimony during the three days
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DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
he was deposed or any time thereafter, but he specifically testified that the symptoms he was
attributing to Defendants he had never before experienced at any point in his life, not even after
his recent termination. (Plaintiff Depo. 346:1 1-347z2; Attached as Exhibit 3 to Fitzsimmons
Decl.) Indeed, in his verified discovery responses, he also makes it clear that he stillsuffers from
severe emotional distress. (See Exhibit 2 to Fitzsimmons Decl.) Nevertheless, if anything,
Plaintiff’s counsel’s suggestion that Plaintiffwas misattributing his emotional distress to
Defendant establishes even more that Plaintiff s mental condition is in controversy because he
apparently isconfused himself as to what is causing his extreme distress.
D. A Separate Statement is Not Required
10 A separate statement was not required for this motion. Rule of Court 3.1345(a)(6),
LLP
11 applies to physical examinations not mental examinations. In fact, the provision itself refers to
2000
12 “medical examination[s].” This isbecause unlike with mental examinations, which require
94111
Mansukhani,
Suite
13 either a stipulation or court order, a physical examination requires the defendant to serve an
CA
Street, 14 actual demand for the examination. (See CCP §§ 2032.220; 2032.320.) The plaintiffmust
Scully
Francisco,
15 actually respond to the written demand for a physical examination by stating whether the
Battery
Rees
San 16 plaintiff will comply or not and provide the reasons why the plaintiffwon’t comply if that is the
275
Gordon
17 case. (CCP § 2032.230(a).) As such, a motion to compel a physical examination must have a
18 separate statement that states the actual text ofthe demand, the response to the demand, and the
19 reasons for compelling it,as set forth in California Rules of Court 3.1345(c). Because a mental
20 examination does not require a written demand or a response to a written demand, a separate
21 statement is not required because there would be nothing to include in the separate statement. In
22 other words, a motion to compel a mental examination does not involve “the content of a
23 discovery request 0r the responses t0 such a request” that would necessitate a separate statement.
24 (See Cal. Rule Court 3.1345(a).)
25 Moreover, a separate statement is not required for this motion because “no response has
26 been provided to the request.” (Cal. Rule Court 3.1345 (b) [“A separate statement is not required
27 when no response has been provided to the request for discovery.”].) Defendant sent Plaintiff a
28
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DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
proposed stipulation on September 26, but Plaintiff failed to respond to it. (Fitzsimmons Decl. 1]
5.)
III. CONCLUSION
Defendant respectfully requests that this Court order Plaintiff to submit to an independent
mental examination on a mutually agreeable date before the close of discovery or, in the
alternative, preclude Plaintiff from making any claim for emotional distress damages.
Dated: October 26, 2018 GORDON REES SCULLY MANSUKHANI, LLP
By:
Marcie Isom Fitzsimmons
10 Amber A. Eklof
Attorneys for Defendant
LLP
11 TRUSTEES OF THE LELAND STANFORD
JUNIOR UNIVERSITY, erroneously sued as THE
2000
12 LELAND STANFORD JUNIOR UNIVERSITY
94111
Mansukhani,
Suite
13
CA
Street, 14
ScullyFrancisco,
15
Battery
Rees
San 16
275
Gordon
17
18
19
20
21
22
23
24
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1121340/40961541v.1
-6-
DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL
PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION
Ali Taghavi v. The Leland Stanford U rsity
San Mateo Superior Court Case No. 17CIV04‘570
PROOF OF SERVICE
Iam a resident of the State of California, over the age, of eighteen years, 'and not a party
to the within action. My business address is: Gordon‘Rees Scully Mansukhani, LLP 275 Battery
Street, Suite 2000, 'San Francisco, CA 941 1 1. On the date below, I served the within documents:
DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS
MOTION TO COMPEL PLAIINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL
EXAMINATION
OOQOKUI-fi Via FedEx: By pl'acing a true copy thereof enclosed in a sealed envelope, at a station
designated for collection and processing of envelopes and packages for overnight delivery
by FedEx as part of the ordinary business practices of Gordon Rees Scully Mansukhani,
LLP described below, addressed as follows:
Fredrick A. Hagen
BERDING & WBIL LLP
L0
2175 N. California Blvd, Suite 500
Walnut Creek, California 94596.
10 Telephone: 925-838-2090
Facsimile:- 925-820-5592
‘11
flaapenfibberdifigweikom
Plaintiff’s Counsel
12
13"
D Via Electronic Transmission: By transmitting Via electronic mail the document(s)
above to the e-mail address(es) set forth below.
listed
Via U.S. Mail: By placing the document(s) "listed above in a sealed envelope with postage
14‘ ‘
thereon fully prepaid, in United States mail in the State of California at San Francisco,
addressed as set forth below.
15
16
David P. Zins 7 .
Karen J. Kubin
MORRISON & FOERSTER LLP MORRISON & FOERSTER LLP
707 Wilshire Blvd}, Suite 6000 425 Market Street
17
Los Angeles, CA 94105 San Francisco, CA 94105
Telephone: 2 1 3-892-5200 Telephone: 4 1 5-268-7000
18
Facsimile: 213-892-5454 Facsimile: 415-268—7522
19
d'zins(a2mofo.com kkubinfibmofosom
Counselfar DefendantAlticor, Inc. Counselfor DefendantAltiéor, Inc.
20
Iam readily familiar with the firm’s practice of collection and processing correspondence
2V1
for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
22 motion of the party served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after the date of deposit for mailing in affidavit.
23
I declare under penalty of perjury under the laws 0f the State of California that the above
24 istrue and correct.
.25
Executed on October 26, 201 8 at San Francisco, California.
26
27
Meg Naizghf
28
112 1340063669091]
PROOF OF SERVICE
Preview
Ma MARCIE ISOM FITZSIMMONS (SBN: 226906) AMBER .A. EKLOF E GORDON REES (SBN: 305750) SCULLY MANSUKHANI, LLP F ET% 4 3 275 Battery Street, Suite 2000 SAN MA W0 CQL NTY San Francisco, CA 94111 UcT 2 6 2018 Telephone: (415) 986-5900 Facsimile: (415) 986-8054 misom@grsm.com aeklof@grsm.com FAX Attorneys for Defendant 17— GlV—(1457u . gY TRUSTEES OF THE LELAND MPAS Memorandumof __ - m ‘ Sup; Points and Authorities STANFORD JUNIOR UNIVERSITY, erroneously sued as THE LELAND STANFORD JUNIOR UNIVERSITY ”“iiiumumlmuum SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN MATEO LLP 11 ALI TAGHAVI, an individual, CASE NO. 17CIV04570 2000 12 Plaintiff, DEFENDANT STANFORD 94111 Mansukhani, UNIVERSITY’S REPLY BRIEF IN Suite 13 vs. SUPPORT OF ITS MOTION TO CA COMPEL PLAINTIFF’S Street, 14 THE LELAND STANFORD JUNIOR PSYCHIATRIC INDEPENDENT Scully Francisco, UNIVERSITY, a California nonprofit MEDICAL EXAMINATION Vvvvvvvvvvvvv 15 corporation, doing business as STANFORD Battery Rees UNIVERSITY; ALTICOR, INC, a Michigan San 16 corporation; and DOES 1-10, inclusive, Date: November 6,2018 275 Time: 9:00 am. Gordon 17 Defendants. Dept: Law and Motion 18 19 I. INTRODUCTION 20 Plaintiffs Opposition to Defendants’ motion to compel his independent psychiatric 21 medical examination (“IME”) is full of hyperbole, and light on supported facts or law. In his 22 Opposition, Plaintiff unsuccessfully attempts to recast his prior sworn testimony and discovery 23 responses that clearly indicate that he suffers (or alleges to suffer) Mg severe emotional 24 distress purportedly caused by Defendants by suggesting that his testimony was somehow 25 influenced by his recent termination from another employer. However, Plaintiff utterly fails to 26 dispute that good cause exists for an IME. To the contrary, even a cursory review of Plaintiff’s 27 deposition testimony and discovery responses indicate that an IME is warranted because 28 Plaintiff’s mental condition is very much in controversy and good cause exists. Plaintiff cannot -1- DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION now try to downplay and artificially attempt to limit his alleged emfitional distress for the strategic purpose of avoiding an IME. " Settled law provides that Defendant isentitled t0 a psychiatric examination of Plaintiff in llight ofthe evidence ofthe continuing and extraordinary nature of his claimed emotional distress. Accordingly, the Court should grant Defendant’s motion and compel Plaintiff to submit to thé IIVIE with Dr. Strassberg on a mutually convenient date before the close of discovery. II. LEGAL ARGUMENT \DOOQQ A. If Anyone Failed to,Adquatelv Meet and Confer? It Was Plaintiff Defendant made “a reasonable and good faith attempt” to arrange for'the mental 10 examination by stipulation prior to filing this motion. (Code Civ. Pro. § 2032.3 10(b).) LLP 11 Plaintiff’s suggestion that Defendant’s motion should be denied bec‘ause Defendant failed to v 2000 12 adequately meet and confer isuntenable, unsupported, and disingenuous. 94111 Mansukhani, Suite 13 As set forth in Defendant’s motion, Defendant attempted seVeral times (September 21, CA Street, 14 26, and 27) to meet and confer with Plaintiff’s counsel, but he refused to stipulate to the ScullyFrancisco, 15 examination. (Fitzsimmons Decl. 115.) Defendant’s counsel sent Plaintiff s counsel a proposed Battery Rees San 16 stipulation on September 26 that appeared to be consistent with the :majority of his “conditions” 275 Gordon 17 for the examination, but he never responded, despite Defendant’s counsel’s follow up to him the 18 following day. (Id.) Plaintiffs counsel did not even respond after Deféndant filed itsmotion to 19 compel. Defendant more than met itsobligations to attempt to arrange for the examination by 20 stipulation prior to filing this motion. 21 B. Plaintiff Cannot Now Degv Hi_s Ongoing Emotional Distress To Avoid an IME 22 Plaintiff’s mental condition cannot be taken out 0f controvefsy simply because, for 23 strategic reasons, he no longer claims to be suffering from continuing emotional distress. (See 24 e.g.Lytel v. Simpson, 2006 U.S. Dist. LEXIS 53927 (N.D. Cal. July 21, 2006);. see also Reuters 25 v.Superior Court, (1979) 93 Cal.App.3d 335, 337 [holding that becéuSe section 2032 is based on 26 Federal Rule 35, judicial construction ofthe federal rule may be useful in construing section 27 2032].) In Lytel, the plaintiff argued that there was no “good cause” for the IME because she 28 -2- DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION only alleged “garden variety” emotional distre‘ss,did not plan on designating an expert to testify about her mental condition, and agreed to abandon her emotional distress claim. (Id. at 14.) The District Court granted the defendant’s motion to compel an IME, holding that “good cause” existed given the conflicts in the record about the plaintiff’s alleged emotional distress, indicating that plaintiff was denying ongoing emotional distress for “strategic” reasons. (161.) The court explained: [W]here there isin fact continuing distress and only a strategic decision by an individual to place a temporal limit to her claim of damages for such distress, the distress still exists and observation of the individual by a medical examiner does provide a level of information that is not available from prior medical records and the deposition testimony from the treating physician. 10 LLP 11 (Id.) The court also concluded that denying the defendant’s motion for an IME “would deprive 2000 12 [defendant] of a fair opportunity to defend against [plaintiff s] claims of emotional distress...” 94111 Mansukhani, Suite 13 (Id. at 17.) Moreover, even though the plaintiff in Lytel agreed to abandon the emotional distress CA Street, 14 claim completely, the court stillfound that the plaintiff’s mental state was in controversy due to ScullyFrancisco, 15 her ongoing symptoms. (Id.) Battery Rees San 16 For the first time during a year of litigation, Plaintiff asserts in his Opposition (not even 275 Gordon 17 by way of a declaration from Plaintiff) that he “is making no claim for mental or emotional 18 distress over and above what normally would attend the type of wrongful termination alleged in 19 the complaint” and that he does not plan to disclose a psychiatric expert. (Opp. 3227-422.) 20 Plaintiff’s unsupported representation isinsufficient to avoid an IME, particularly in light of the 21 exceptional and contradictory allegations that Plaintiff is making in this case. Similar to Lytel, 22 Plaintiff has apparently made a strategic decision t0 artificially limit and downplay his alleged 23 emotional distress in an attempt t0 avoid an IME, but he has yet to negate, withdraw or correct 24 his prior assertions of actual ongoing emotional distress in the pleadings, deposition testimony, 25 and discovery responses. As it stands, Plaintiff asserts a claim for unusually severe and ongoing 26 emotional distress over and above that which is usually associated with claims for wrongful 27 termination and discrimination. (See e.g. Exhibit 3 to Fitzsimmons Decl. [plaintiff testified he 28 suffered severe depression and anxiety, was unable to leave his bed for “days and days and -3- DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION days,” wakes up feeling “paralyzed,” and has symptoms “akin to PTSD,” that he has never previously experienced].) C. A Mental Examination 0f Plaintiff Is Authorized Because Plaintiff Claims Continued Severe Emotional Distress as a Result of Defendant’s Conduct and There Is Good Cause for Such Examination A court is authorized to order a mental examination of a party to the action when (1) the mental condition of that party is “in controversy in the action” and (2) the moving party shows “good cause” for such examination. (Code Civ. Pro. § 2032.320) Plaintiff does not appear to dispute that his mental condition is “in controversy.” Without any support (factual or legal) and without addressing any of Defendant’s arguments, however, 10 Plaintiff claims that Defendant has failed to demonstrate good cause. If ever good cause existed, 11 it’sin this case. LLP 2000 12 Good cause exists for a mental examination of a plaintiff where he seeks recovery for 94111 Mansukhani, Suite 13 continuing severe emotional distress, his mental condition is directly related to his emotional CA Street, 14 distress claim, and the information is necessary to a fair resolution ofthe lawsuit. (Vinson, ScullyFrancisco, 15 supra, 43 Cal.3d at 842 [citing Britt v. Superior Court, (1978) 20 Cal.3d 844, 859].) Such is Battery Rees San 16 precisely the case here. Plaintiff claims that Defendant has caused him to suffer continuing 275 Gordon 17 significant emotional distress, which he stillexperiences. (Exhibits 2-3 to Fitzsimmons Decl.) 18 He claims he suffers from depression, anxiety, he “shuts down” when he thinks about Stanford, 19 that he gets “very emotional,” and that his symptoms are “akin t0 PTSD.” (Exhibit 3 to 20 Fitzsimmons Decl.) He claims that isthe first time in his life that he experienced that level of 21 anxiety and depression and claims that he stillhas those symptoms t0 this day. (Id.) Plaintiff‘s 22 pleadings, discovery responses, and deposition testimony establish without a doubt, Plaintiff s 23 claim for continuing severe emotional distress. Under these circumstances, this Court isclearly 24 authorized to grant Defendant’s request for a court ordered mental examination of Plaintiff. 25 Curiously, Plaintiff s counsel now tries to excuse Plaintiff s testimony about his 26 emotional distress by stating that Plaintiff’s deposition testimony about his extensive emotional 27 distress was “affected by his recent separation from his then current employer.” (Opp. 3:19—21.) 28 Not only did Plaintiff fail t0 make any revisions to his deposition testimony during the three days -4- DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION he was deposed or any time thereafter, but he specifically testified that the symptoms he was attributing to Defendants he had never before experienced at any point in his life, not even after his recent termination. (Plaintiff Depo. 346:1 1-347z2; Attached as Exhibit 3 to Fitzsimmons Decl.) Indeed, in his verified discovery responses, he also makes it clear that he stillsuffers from severe emotional distress. (See Exhibit 2 to Fitzsimmons Decl.) Nevertheless, if anything, Plaintiff’s counsel’s suggestion that Plaintiffwas misattributing his emotional distress to Defendant establishes even more that Plaintiff s mental condition is in controversy because he apparently isconfused himself as to what is causing his extreme distress. D. A Separate Statement is Not Required 10 A separate statement was not required for this motion. Rule of Court 3.1345(a)(6), LLP 11 applies to physical examinations not mental examinations. In fact, the provision itself refers to 2000 12 “medical examination[s].” This isbecause unlike with mental examinations, which require 94111 Mansukhani, Suite 13 either a stipulation or court order, a physical examination requires the defendant to serve an CA Street, 14 actual demand for the examination. (See CCP §§ 2032.220; 2032.320.) The plaintiffmust Scully Francisco, 15 actually respond to the written demand for a physical examination by stating whether the Battery Rees San 16 plaintiff will comply or not and provide the reasons why the plaintiffwon’t comply if that is the 275 Gordon 17 case. (CCP § 2032.230(a).) As such, a motion to compel a physical examination must have a 18 separate statement that states the actual text ofthe demand, the response to the demand, and the 19 reasons for compelling it,as set forth in California Rules of Court 3.1345(c). Because a mental 20 examination does not require a written demand or a response to a written demand, a separate 21 statement is not required because there would be nothing to include in the separate statement. In 22 other words, a motion to compel a mental examination does not involve “the content of a 23 discovery request 0r the responses t0 such a request” that would necessitate a separate statement. 24 (See Cal. Rule Court 3.1345(a).) 25 Moreover, a separate statement is not required for this motion because “no response has 26 been provided to the request.” (Cal. Rule Court 3.1345 (b) [“A separate statement is not required 27 when no response has been provided to the request for discovery.”].) Defendant sent Plaintiff a 28 -5- DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION proposed stipulation on September 26, but Plaintiff failed to respond to it. (Fitzsimmons Decl. 1] 5.) III. CONCLUSION Defendant respectfully requests that this Court order Plaintiff to submit to an independent mental examination on a mutually agreeable date before the close of discovery or, in the alternative, preclude Plaintiff from making any claim for emotional distress damages. Dated: October 26, 2018 GORDON REES SCULLY MANSUKHANI, LLP By: Marcie Isom Fitzsimmons 10 Amber A. Eklof Attorneys for Defendant LLP 11 TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY, erroneously sued as THE 2000 12 LELAND STANFORD JUNIOR UNIVERSITY 94111 Mansukhani, Suite 13 CA Street, 14 ScullyFrancisco, 15 Battery Rees San 16 275 Gordon 17 18 19 20 21 22 23 24 25 26 27 28 1121340/40961541v.1 -6- DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL PLAINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION Ali Taghavi v. The Leland Stanford U rsity San Mateo Superior Court Case No. 17CIV04‘570 PROOF OF SERVICE Iam a resident of the State of California, over the age, of eighteen years, 'and not a party to the within action. My business address is: Gordon‘Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000, 'San Francisco, CA 941 1 1. On the date below, I served the within documents: DEFENDANT STANFORD UNIVERSITY’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL PLAIINTIFF’S PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION OOQOKUI-fi Via FedEx: By pl'acing a true copy thereof enclosed in a sealed envelope, at a station designated for collection and processing of envelopes and packages for overnight delivery by FedEx as part of the ordinary business practices of Gordon Rees Scully Mansukhani, LLP described below, addressed as follows: Fredrick A. Hagen BERDING & WBIL LLP L0 2175 N. California Blvd, Suite 500 Walnut Creek, California 94596. 10 Telephone: 925-838-2090 Facsimile:- 925-820-5592 ‘11 flaapenfibberdifigweikom Plaintiff’s Counsel 12 13" D Via Electronic Transmission: By transmitting Via electronic mail the document(s) above to the e-mail address(es) set forth below. listed Via U.S. Mail: By placing the document(s) "listed above in a sealed envelope with postage 14‘ ‘ thereon fully prepaid, in United States mail in the State of California at San Francisco, addressed as set forth below. 15 16 David P. Zins 7 . Karen J. Kubin MORRISON & FOERSTER LLP MORRISON & FOERSTER LLP 707 Wilshire Blvd}, Suite 6000 425 Market Street 17 Los Angeles, CA 94105 San Francisco, CA 94105 Telephone: 2 1 3-892-5200 Telephone: 4 1 5-268-7000 18 Facsimile: 213-892-5454 Facsimile: 415-268—7522 19 d'zins(a2mofo.com kkubinfibmofosom Counselfar DefendantAlticor, Inc. Counselfor DefendantAltiéor, Inc. 20 Iam readily familiar with the firm’s practice of collection and processing correspondence 2V1 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on 22 motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. 23 I declare under penalty of perjury under the laws 0f the State of California that the above 24 istrue and correct. .25 Executed on October 26, 201 8 at San Francisco, California. 26 27 Meg Naizghf 28 112 1340063669091] PROOF OF SERVICE