KAYO AHMED VS. RECOLOGY, INC, ET AL

May 8, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ Discussion

It is a well-settled precept that the discovery system and statutes must be construed liberally and generally to uphold the right to discovery whenever reasonable and possible. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434 [referencing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1998) ¶ 8.26 et seq.) “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ.

Proc. § 2017.010.) For discovery purposes, the phrase “relevant to the subject matter” has been broadly construed to include any information that might assist a party in evaluating a case, preparing for trial, or facilitating settlement of the matter. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) That being said, while the sword of discovery is broad, the blade cuts both ways and the swathe of preparation for trial and examination must be as well.

Here, there is no question that plaintiff has placed his mental condition at issue and that defendants are entitled to examine his mental condition, a proposition to which plaintiffs were willing to stipulate to given certain conditions. (See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1254.) Defendants have retained Leah Ellenberg, Ph.D. to conduct a neuropsychological evaluation of the plaintiff. Strella Decl., ¶ 8. The heart of the instant motion hinges upon the conditions plaintiff seeks to place for such an exam.

In summary, plaintiff asserts defendants’ motion is foreclosed by the ruling affirmed in Randy’s Trucking v. Superior Court (2023) 91 Cal.App.5th 818. The present action presents the same issues as in Randy’s Trucking, and the Court agrees with plaintiff’s argument. “There is no statutory authority, however, precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination.” Id. at 834. “[G]iven the trial court’s broad discretion in discovery matters, the trial court nevertheless has the power to order disclosure of test materials and date to the plaintiff’s attorney” Id. at 835.

Defendants’ assert that the appellate court in Randy’s Trucking did not appreciably address two of the reasons why a protective order was insufficient to ameliorate the pitfalls in disclosure of the examination and testing to counsel. Specifically, (1) if the transfer of testing materials to plaintiffs’ attorney was an ethical and professional violation even with a protective order; and (2) protective orders do not erase knowledge an attorney may acquire concerning the test, which can be used to educate future clients about the test. (Randy’s Trucking, supra, 91 Cal.App.5th at 664, Reply brief pp.3-4.)

However, the Court finds defendants make an unsupported leap in their contention that this case is materially any different from Randy’s Trucking. It is a bare claim that “[defendants here have adequately set forth why a protective order would be insufficient in the Collective Statement of Importance of Protection of Psychological Test Materials signed by neuropsychologists and psychologists licensed to practice in the state of California.” (Reply Brief, pg. 4, lines 16-19 citing to the Declaration of Joseph W.

Strella, Esq., Exhibit K.) The Court declines to rely upon Exhibit K because it has not been properly authenticated, and is therefore inadmissible hearsay. Additionally, as it was not materially addressed in that case, Randy’s Trucking does not stand for a proposition that a protective order is per se inadequate.

Defendant’s cite to California Board of Psychology rule 1396.3 that provides in part “a psychologist will not reproduce... any psychological tests... in ways that might invalidate the techniques; and shall limit access to such tests or devices to persons with professional interests who will safeguard their use.” Defendant’s Memorandum of Points and Authorities (“MPA”), pg. 11, lines 15-18 (emphasis added). However, there is no showing that providing the tests or raw data to counsel would “invalidate” the test, and a licensed attorney is such a professional who would be bound to safeguard it by Court order.

May 8, 2026 Law and Motion Calendar PAGE 22 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ Equally unpersuasive is Defendant’s broad argument that a protective order is generally inadequate. Defendant’s make essentially a policy argument that the plaintiff’s bar “would have every incentive to prepare their next clients for evaluation and such psychological testing” or that “attorneys coach clients on how to take psychological tests.”

Defendant’s MPA, pg. 12, lines 1-4. This is not an argument against the current plaintiff attorney at all, and ignores the fact that this plaintiff’s attorney would only receive the raw data after the test is finished. How can plaintiff Kayo Amed be coached by his attorney in advance of a test, with testing raw data that would not yet exist? There is also no basis to claim that this plaintiff’s counsel would violate a protective order, and indeed, plaintiff’s counsel is the one who has offered it.

Under the circumstances of this case, the Court finds it appropriate to grant plaintiff’s request for a protective order consistent with the parameters of Randy’s Trucking in substantially the same format that plaintiff has requested (see, Plaintiff’s Opposition, Exh. B).

Furthermore, the defense argument is also in part contradictory, in arguing “the majority of licensed psychologists in Northern California are of the opinion that attorneys do not have the professional training and experience to evaluate, by viewing the testing raw data, and audio recording of testing, as to whether the neuropsychologist administered, scored, and/or interpreted the tests correctly.” Defendant’s MPA, pg. 14, lines 19-22. In other words, defendant is essentially arguing that attorneys would not understand or be able to use the raw data appropriately. If accepted as true for the sake of argument, how could those same attorneys use the raw data inappropriately on future cases as claimed?

Thus the Court cannot find that defendants’ grounds to limit disclosure of the testing raw data to only another licensed psychological expert are persuasive or adequate. Accordingly, defendants’ motion is GRANTED IN PART as to the mental examination and DENIED IN PART with respect to withholding the release of tests, results from plaintiff’s counsel and not allowing audio taping.

To be clear, the Court is not order Dr. Ellenberg to comply with this ruling. Rather, Dr. Ellenberg has the option of declining and recusal from this case, or proceeding with the exam under this order. If defendants want the mental exam to go forward, whether with Dr. Ellenberg or another doctor, it will be required to follow the terms of this ruling.

As the appellate court in Randy’s Trucking concluded, “[w]e recognize there are concerns that a protective order is insufficient to protect test security and that no neuropsychological or psychological expert will comply with such an order. These concerns, however, are better expressed to the Legislature, which is empowered to create evidentiary rules limiting the transmission of discovery materials.” (Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 848.) The Legislature has not codified such a change, and Randy’s Trucking is not only still binding but it remains the leading appellate precedent on this topic.

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.