Filed 11/19/15; pub. order 12/18/15 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT

JONNIE ROE, a Minor, etc., et al.,                           H042060
                                                            (San Benito County
        Petitioners,                                         Super. Ct. No. CU-14-00017)

        v.

SUPERIOR COURT OF SAN BENITO
COUNTY,

        Respondent;

HOLLISTER SCHOOL DISTRICT et al.,

        Real Parties in Interest.


        Petitioners Jonnie Roe, a minor, (Jonnie), Jane Roe (Jane), and John Roe (John)
assert, among other claims, that the superior court had no authority to order interviews of
Jane and John, Jonnie’s parents, collateral to the mental examination of Jonnie and, in
issuing such an order, the court exceeded its authority under Code of Civil Procedure
section 2032.020.1 As explained below, we agree.
                                                        I
                                                  Background
        Real parties in interest (defendants) are the named defendants in the underlying
civil action for damages (CU-14-00017) brought by Jonnie (by and through his guardian



        1
        All further statutory references are to the Code of Civil Procedure unless
otherwise specified.
ad litem, John) and Jane. The complaint alleges that Jonnie, while a kindergartner at an
elementary school in the Hollister School District, was sexually molested at school by
another male kindergartener on two occasions.2 The named defendants are Hollister
School District (School District) and Bill Sauchau, who is alleged to be the elementary
school’s principal; Kathy Hudson, who is alleged to be a teacher at the school; and a
person with the surname of Zamora (first name unknown), who is alleged to be, “a
playground monitor and/or yard supervisor” at the school.
       School District brought a motion in respondent San Benito County Superior Court
(superior court) for an order compelling Jonnie to submit to an independent mental
examination, which would include personal interviews of Jonnie and his parents by
Dr. Anlee Kuo, a psychiatrist, and psychological testing of Jonnie by Dr. Sarah Hall, a
psychologist. The superior court granted the motion on March 2, 2015.
       Petitioners sought a writ of mandate “compelling the respondent court to vacate its
order of March 2, 2015 insofar as it compels John and Jane Roe to submit to interviews
by the defense forensic psychiatrist, refuses to permit John, as guardian, to attend
Jonnie’s interview, and refuses to order defendants to deliver the written tests
administered to Jonnie and their results and to enter a new order without requiring such
interviews and requiring defendants to deliver the tests and the results . . . .”
       On March 12, 2015, we issued a limited order staying the superior court’s
March 2, 2015 order only insofar as it compels the interview of Jonnie’s parents, until
further order of this court. We subsequently ordered the respondent superior court “to


       2
         The first cause of action for negligence, the second cause of action for negligence
per se-failure to report known and/or suspected child abuse, and the third cause of action
for negligent supervision were asserted by only Jonnie (by and through his guardian ad
litem); the fourth cause of action for intentional infliction of emotional distress and the
fifth cause of action for negligent infliction of emotional distress were asserted by both
Jonnie (by and through his guardian ad litem) and his mother, Jane; and the sixth cause of
action for concealment was asserted by only Jane.

                                               2
show cause . . . why a peremptory writ should not issue as requested in the petition for
writ of mandate.”
                                             II
                                         Discussion
A. Parental Interviews Collateral to Mental Examination of Minor
1. Facts
       The superior court’s March 2, 2015 order sets forth the scope and length of the
mental examination of Jonnie by Drs. Kuo and Hall. The order authorizes Dr. Hall to
administer four specific psychological tests to Jonnie. It prohibits third-party observers
during those examinations but requires the examinations to be audiotaped.
       The March 2, 2015 order further compels Jonnie’s parents to submit to “collateral
interviews” as part of the mental examination of their son. The order limits the scope of
those interviews to parental “observations about the mental physical symptoms that
Jonnie Roe has expressly put into controversy . . . .” It also places the following
limitations on those interviews: “Any questioning must be directly relevant, and a nexus
must exist to the information sought and the claimed symptoms so as to protect Jonnie
Roe’s, Jane Roe’s, and John Roe’s privacy. Dr. Kuo may not inquire about Jane Roe’s or
John Roe’s mental state. [¶] Dr. Kuo’s interview shall not be unnecessarily repetitive of
questions asked in deposition proceedings and other written discovery to date.”
2. Section 2032.020
       Section 2032.020, subdivision (a), sets forth the three categories of persons subject
to mental examinations: “Any party may obtain discovery, subject to the restrictions set
forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or
mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural
person in the custody or under the legal control of a party, in any action in which the
mental or physical condition (including the blood group) of that party or other person is
in controversy in the action.” There is no dispute that Jonnie’s mental state is in

                                              3
controversy. (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 839 [“a party who
chooses to allege that he has mental and emotional difficulties can hardly deny his mental
state is in controversy”].) The mental examination must be “performed only by a
licensed physician, or by a licensed clinical psychologist who holds a doctoral degree in
psychology and has had at least five years of postgraduate experience in the diagnosis of
emotional and mental disorders.” (§ 2032.020, subd. (c).)
       Defendants argue that a collateral interview of a minor’s parents is permissible as
part of an independent mental examination of the minor and is required by the
professional standard of care in psychiatry. They suggest that, since the examiner must
be a licensed physician or psychologist, the California Legislature “must expect a
minimum level of competence from the physician or psychologist and similarly must
require the physician or psychologist to practice within the standard of care applicable to
their [sic] licensure or specialty.” They assert that “[a] collateral interview is therefore at
least implicitly authorized by the Code of Civil Procedure.”
       This case presents a straightforward question of statutory interpretation. “ ‘As in
any case involving statutory interpretation, our fundamental task here is to determine the
Legislature’s intent so as to effectuate the law’s purpose.’ [Citation.] ‘We begin with the
plain language of the statute, affording the words of the provision their ordinary and
usual meaning and viewing them in their statutory context, because the language
employed in the Legislature’s enactment generally is the most reliable indicator of
legislative intent.’ [Citations.] The plain meaning controls if there is no ambiguity in the
statutory language. [Citation.]” (People v. Cornett (2012) 53 Cal.4th 1261, 1265.)
       “A statutory provision is ambiguous if it is susceptible of two reasonable
interpretations. (Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508,
519.)” (People v. Dieck (2009) 46 Cal.4th 934, 940.) “[I]f the language allows more
than one reasonable construction, we may look to such aids as the legislative history of
the measure and maxims of statutory construction. In cases of uncertain meaning, we

                                               4
may also consider the consequences of a particular interpretation, including its impact on
public policy. [Citations.]” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th
1164, 1190.) “Only when the language of a statute is susceptible [of] more than one
reasonable construction is it appropriate to turn to extrinsic aids, including the legislative
history of the measure, to ascertain its meaning. [Citation.]” (Diamond Multimedia
Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1055.) “When statutory
language is clear and unambiguous, there is no need for construction and courts should
not indulge in it. [Citations.]” (People v. Overstreet (1986) 42 Cal.3d 891, 895.)
       “ ‘[A]n intention to legislate by implication is not to be presumed.’ [Citations.]”
(In re Christian S. (1994) 7 Cal.4th 768, 776.) “A court may not, ‘under the guise of
construction, rewrite the law or give the words an effect different from the plain and
direct import of the terms used.’ (California Fed. Savings & Loan Assn. v. City of Los
Angeles (1995) 11 Cal.4th 342, 349.)” (DiCampli-Mintz v. County of Santa Clara (2012)
55 Cal.4th 983, 992.) “ ‘Where the words of the statute are clear, we may not add to or
alter them to accomplish a purpose that does not appear on the face of the statute or from
its legislative history.’ [Citation.]” (In re Jennings (2004) 34 Cal.4th 254, 265.)
       “[W]e are mindful of this court’s limited role in the process of interpreting
enactments from the political branches of our state government. In interpreting statutes,
we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words
of the law, ‘ “ ‘whatever may be thought of the wisdom, expediency, or policy of the
act.’ ” ’ [Citation.] ‘[A]s [the Supreme Court] has often recognized, the judicial role in a
democratic society is fundamentally to interpret laws, not to write them. The latter power
belongs primarily to the people and the political branches of government . . . .’ (Kopp v.
Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 675 (conc. opn. by Werdegar, J.).) It
cannot be too often repeated that due respect for the political branches of our government
requires us to interpret the laws in accordance with the expressed intention of the
Legislature. ‘This court has no power to rewrite the statute so as to make it conform to a

                                              5
presumed intention which is not expressed.’ [Citations.]” (California Teachers Assn. v.
Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632-633.)
       Section 2032.020 establishes only three categories of persons subject to mental
examination. “The three statutory categories of persons who may be examined are
exclusive because, after the adoption of the 1957 statutes dealing with civil discovery,
our courts lack the power to order discovery beyond that permitted by the statutes.
[Citations.]” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 650 (Cruz) [former
§ 2032, subd. (a) (now § 2032.020, subd. (a))]; see Reuter v. Superior Court (1979) 93
Cal.App.3d 332, 343 (Reuter) [stating with respect to former § 2032, “[t]he persons
covered by the statute are clearly specified”].)
       While Jane is a plaintiff in the underlying action, the motion sought to compel a
mental examination of only Jonnie. Jane was not a “party” for purposes of that motion.
John is not a “party” for the purposes of that motion either; he is not even a “party” to the
underlying action. The “guardian ad litem is not a party to the action; instead, he or she
is a representative of record of a party who lacks capacity to sue. (J.W. v. Superior Court
(1993) 17 Cal.App.4th 958, 964.)” (Safai v. Safai (2008) 164 Cal.App.4th 233, 245; see
§ 372.) There is no argument that either parent is an agent of Jonnie or in the custody or
under the legal control of Jonnie within the meaning of section 2030.020, subdivision (a).
       Nothing in section 2032.020 contemplates a “collateral interview” of a minor’s
parents as part of a mental examination of a party who is a minor. In Reuter, a mother
and her son were plaintiffs in a lawsuit that arose “from an automobile accident in which
the son was injured and his father killed.” (Reuter, supra, 93 Cal.App.3d at pp. 334-335.)
The appellate court held that former section 2032 did not authorize psychological testing
of plaintiff mother collateral to the psychiatric examination of her son where mother’s
mental condition was not in controversy even though the psychiatrist stated that testing of
the mother was necessary to complete his examination of the son. (Reuter, supra, at
pp. 340-345.) The court stated: “[M]any different parties may be the main influence in

                                              6
any particular persons’ [sic] mental state—his parent, his priest, his teacher, his [L]ittle
[L]eague coach. [Former] Section 2032 does not create a power broad enough to allow
the court to order all these parties to submit to a battery of tests to determine the extent of
their influence on a child’s mental state merely on a psychiatrist’s declaration that he
needs them.” (Id. at p. 342.)
       While interviewing the parents of a child to gain background and information
about that child may be a sound professional practice from a psychiatrist’s viewpoint,
section 2030.020’s plain language does not empower a trial court to make a discovery
order requiring such parental interview as part of a mental examination of a party who is
a minor.3 Such authority must come from the Legislature.
B. Mental Examination of Jonnie Ordered for March 16, 2015
       The plaintiffs in the underlying action requested that John, as Jonnie’s guardian
ad litem, be permitted to observe Dr. Kuo’s interview of Jonnie. The March 2, 2015
order set Dr. Kuo’s mental examination of Jonnie for March 16, 2015 (unless the parties
agreed to an alternative date) and, as indicated, it prohibited third-party observers during
the examination. Petitioners have informed this court that this examination has been
completed and any issue concerning the presence of an observer or attorney during that
examination is moot. We agree that issue has been rendered moot since there is no
effectual relief that may be granted, and we do not address it. (See Consol. etc. Corp. v.
United A. etc. Workers (1946) 27 Cal.2d 859, 862-863.)




       3
         Our conclusion renders moot the questions (1) whether collateral interviews of
Jane and John, as an adjunct to the mental examination of Jonnie, would violate their
constitutional rights to privacy or their rights to confidential marital communications and
(2) whether the order’s language setting forth the scope of the collateral parental
interviews is impermissibly vague.

                                               7
C. Written Testing Materials and Jonnie’s Answers
       Section 2032.610, subdivision (a), provides in pertinent part: “If a party submits
to . . . a physical or mental examination in compliance with . . . an order of court under
Article 3 (commencing with Section 2032.310) . . . , that party has the option of making a
written demand that the party at whose instance the examination was made deliver . . . the
following to the demanding party: [¶] (1) A copy of a detailed written report setting out
the history, examinations, findings, including the results of all tests made, diagnoses,
prognoses, and conclusions of the examiner.” If the party submitting to an examination
exercises the option of making such a demand, a copy of the requested reports must “be
delivered within 30 days after service of the demand, or within 15 days of trial,
whichever is earlier.” (§ 2032.610, subd. (b).)
       In their opposition to the motion to compel the mental examination of Jonnie,
plaintiffs requested an order compelling defendants to produce all reports required by
section 2032.610. They additionally stated that they should be provided with copies of
the written test questions and Jonnie’s responses.
       In its reply to that opposition, School District responded that Dr. Hall objected to
production of testing materials because they were subject to copyright law, and it sought
a protective order in the event the superior court ordered disclosure of those materials. It
agreed to provide a written report pursuant to section 2032.610, subdivision (a).
       During the hearings on the motion, the superior court told the parties: “I’m going
to order that [Dr. Hall] comply with the Code of Civil Procedure [section 2032.610]. I’m
not going to start defining the elements. We’ll wait and see how she complies, and if you
believe she has failed to comply, then you can deal with that with a motion to compel.”
It agreed that the phrase “the results of all tests” did not mean the written testing
materials but rather the findings made. The superior court indicated that it would order
compliance in the statutory language of section 2032.610.



                                              8
       As part of the March 2, 2015 order, the superior court ordered both examiners to
provide plaintiffs with the reports statutorily required by section 2032.610. Without
specifying any legal basis, the superior court specified that plaintiffs were not entitled to
the written testing materials used by Dr. Hall and Jonnie’s answers thereto without
further order of the court.
       Petitioners seek a writ of mandate compelling defendants in the underlying case to
deliver the written tests administered to Jonnie and the test results, impliedly including
Jonnie’s test answers.
       Petitioners argue that copyright law is not a valid reason for the court to refuse to
compel the examiner to deliver the tests and test results. The petition does not, however,
allege that the superior court’s refusal was based on copyright law and support that
allegation by citation to the record. (See Cal. Rules of Court, rules 8.204(a)(1)(C),
8.485(a), and 8.486(b).) The superior court’s ultimate order did not contain any mention
of copyright law. We will not issue an advisory opinion on an abstract question of law.
       In their argument, petitioners imply that section 2032.610, subdivision (a)(1),
requires the production of the written testing materials and Jonnie’s answers by analogy
to Penal Code section 1054.3, subdivision (a)(1), a criminal discovery provision that
specifies the disclosure that the defense must make to the prosecution regarding witnesses
whom the defense intends to call at trial.4 They offer a brief quote from People v. Hajek
and Vo (2014) 58 Cal.4th 1144 (Hajek), which considered Penal Code section 1054.3,
subdivision (a)(1): “This provision includes the raw results of standardized

       4
         Penal Code section 1054.3, subdivision (a), provides in pertinent part: “The
defendant and his or her attorney shall disclose to the prosecuting attorney: [¶] (1) The
names and addresses of persons, other than the defendant, he or she intends to call as
witnesses at trial, together with any relevant written or recorded statements of those
persons, or reports of the statements of those persons, including any reports or statements
of experts made in connection with the case, and including the results of physical or
mental examinations, scientific tests, experiments, or comparisons which the defendant
intends to offer in evidence at the trial.”

                                              9
psychological and intelligence tests administered by a defense expert upon which the
expert intends to rely. (Woods v. Superior Court (1994) 25 Cal.App.4th 178, 184-185.)”
(Hajek, supra, at p. 1233.) Without providing any legislative history relevant to statutory
interpretation, petitioners argue that the phrase “the results of all tests made” (§ 2032.610,
subd. (a)(1)) and the phrase “the results of physical or mental examinations” (Pen. Code,
§ 1054.3) both encompass raw test data. They attempt to invoke the principle that courts
presume that the Legislature intended similar statutory language covering similar subjects
to be similarly construed.
       We first observe that “maxims of statutory construction are not immutable
principles that dictate how a statute is to be interpreted. (See In re Joseph B. (1983) 34
Cal.3d 952, 957.)” (Bisno v. Kahn (2014) 225 Cal.App.4th 1087, 1104.) Second, it is a
principle of statutory construction that “[w]here . . . legislation has been judicially
construed and a subsequent statute on the same or an analogous subject uses identical or
substantially similar language, we may presume that the Legislature intended the same
construction, unless a contrary intent clearly appears. [Citations.]” (Estate of Griswold
(2001) 25 Cal.4th 904, 915-916.) This principle does not support petitioners’ argument.
       The first sentence of former section 2032, subdivision (h), which was
substantively continued in section 2032.610, subdivision (a),5 predates the 1994 judicial
construction of Penal Code section 1054.3, subdivision (a)(1), in Woods v. Superior
Court, supra, 25 Cal.App.4th at pp. 184-185 (Woods), which was cited by Hajak. The
Legislature could not have been aware of Woods’ construction when it earlier enacted or
amended former section 2032. (See fn. 5, ante.) Furthermore, Penal Code
section 1054.3, subdivision (a)(1), concerns “the results of physical or mental


       5
         “Subdivision (a) of Section 2032.610 continues the first sentence of former
Section 2032(h) without substantive change.” (Cal. Law Revision Com. com., 21A
West’s Ann. Code of Civ. Proc. (2007 ed.) foll. § 2032.610, p. 436; see e.g. Stats.1993,
ch. 219, § 71, p. 1591; Stats. 1986, ch. 1336, § 1, p. 4751.)

                                              10
examinations . . . which the defendant intends to offer in evidence at the trial.” (Italics
added.) In this respect, section 2032.610, subdivision (a), and Penal Code section 1054.3,
subdivision (a)(1), appear dissimilar. (Cf. Woods, supra, at pp. 184-185 [“Requiring
pretrial disclosure of the raw results of standardized psychological and intelligence tests
administered and relied upon by an expert the defense intends to call at trial allows access
to information necessary to prepare the case, reduces the chance of surprise at trial,
furthers the attainment of truth and lessens the risk of a judgment based on incomplete
testimony”].) Petitioners have not shown that the Legislature’s intent and purpose with
regard to section 2032.610, subdivision (a), support their argument.
         Petitioners also assert that section 2032.610’s phrase “results of all tests made”
constitutes “plain language” that requires Jonnie’s answers to be provided to him, but
they offer absolutely no support for that assertion.6
         Petitioners’ undeveloped analyses fail to establish that section 2032.610 requires
defendants to deliver the written testing materials and Jonnie’s raw answers to the
plaintiffs. Consequently, they have not demonstrated in this writ proceeding that the
superior court was under a legal duty to order, or that its discretion could be legally
exercised only by ordering, such delivery. (See § 1085 [“A writ of mandate may be
issued by any court to any inferior tribunal . . . to compel the performance of an act which
the law specially enjoins . . . .”]; Babb v. Superior Court (1971) 3 Cal.3d 841, 851 [A
writ of mandate will lie where, under the facts, discretion can be exercised in only one
way].)

         6
         “When attempting to ascertain the ordinary, usual meaning of a word, courts
appropriately refer to the dictionary definition of that word. [Citations.]” (Wasatch
Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122.) The word
“result” generally refers to the consequence or outcome of something. (See
<http://www.oxforddictionaries.com/us/definition/american_english/result>[as of
Nov. 19, 2015]; Webster’s New World College Dictionary (4th ed. 2008) p. 1223.) The
plain language of the statute does not resolve whether test “results” encompasses the
examinee’s raw responses.

                                               11
       Moreover, petitioners have not demonstrated there is no “plain, speedy, and
adequate remedy, in the ordinary course of the law” available to them (§ 1086).
Petitioners bear the burden of showing that they lack such a remedy. (Phelan v. Superior
Court in of San Francisco (1950) 35 Cal.2d 363, 366.) The March 2, 2015 order suggests
that plaintiffs may request a further order of the court as to the written testing materials
used by Dr. Hall and Jonnie’s answers thereto. If plaintiffs did not receive reports
satisfying section 2032.610, subdivision (a), pursuant to the court’s March 2, 2015 order,
there is a statutory right to bring a motion for an order compelling delivery of reports
demanded under Section 2032.610.7 (§ 2032.620, subd. (a) [“If the party at whose
instance an examination was made fails to make a timely delivery of the reports
demanded under Section 2032.610, the demanding party may move for an order
compelling their delivery”].) Finally, there is a right of appeal from a final judgment.
       No writ relief is warranted concerning the written testing materials used by
Dr. Hall and Jonnie’s answers thereto.
                                       DISPOSITION
       Let a peremptory writ of mandate issue, commanding respondent court to vacate
its March 2, 2015 order insofar as it authorizes collateral interviews of Jane Roe and
John Roe as part of the mental examination of Jonnie Roe. The stay order issued March
12, 2015 is vacated. Petitioners are entitled to recover costs incurred in this writ
proceeding.




       7
         In addition, if defendants designate Dr. Hall as an expert witness, other statutory
rights of discovery may apply. (See e.g. §§ 2025.480, 2034.210 et seq., 2034.410.)

                                              12
                                            _________________________________
                                            ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
WALSH, J.*




Roe, a Minor, etc. et al. v. Superior Court
H0420608



       *
          Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
Filed 12/18/15

                            CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT

JONNIE ROE, a Minor, etc., et al.,                  H042060
                                                   (San Benito County
        Petitioners,                                Super. Ct. No. CU-14-00017)

        v.                                          ORDER GRANTING REQUEST
                                                    FOR PUBLICATION
SUPERIOR COURT OF SAN BENITO
COUNTY,

        Respondent;

HOLLISTER SCHOOL DISTRICT et al.,

        Real Parties in Interest.


THE COURT:
        The opinion in the above-entitled matter filed on November 19, 2015, was not
certified for publication in the Official Reports. Counsel for real parties in interest has
requested the opinion be certified for publication. Counsel for petitioner and for
California Attorneys of California have requested the opinion be certified for partial
publication. It appears that the opinion meets the standards set forth in California Rules
of Court, rule 8.1105(c). The court will grant full publication. The opinion is ordered
published in the Official Reports.

                                     _________________________________________
                                     ELIA, J.

                                     __________________________________________
                                     RUSHING, P.J.

                                              14
Trial Court:                                  San Benito County Superior Court
                                              Superior Court No.: CU-14-00017


Trial Judge:                                  Honorable Harry J. Tobias


Counsel for Petitioners:                      Alan Charles Dell'Ario
JONNIE ROE, a Minor, etc., et al.
                                              Alexis Susann McKenna
                                              Winer, McKenna & Burritt


Counsel for Real Parties in Interest:         Eric Shiu
HOLLISTER SCHOOL DISTRICT et al.,             Lynch and Shupe




Roe, a Minor, etc. et al. v. Superior Court
H042060
