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coo wm NIN DH PB wWDHND =|
BRADLEY, CURLEY,
BARRABEE &
KOWALSKI, P.C.
4100 Larkspur Landing
Circle, Suite 350
Larkspur, CA 94939
TEL (418) 464-8888
FAX (415) 464-8887
ARTHUR W. CURLEY, BAR NO. 60902
PETER F. FINN, BAR NO. 267810
BRADLEY, CURLEY, BARRABEE
& KOWALSKI, P.C.
1100 Larkspur Landing Circle, Suite 350
Larkspur, California 94939
Telephone: (415) 464-8888
Facsimile: (415) 464-8887
Attorneys for Defendant
ALTERNATIVE FAMILY SERVICES, INC.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SONOMA
(UNLIMITED JURISDICTION)
C.F. by and through her Guardian and ) No. SCV264540
Guardian Ad Litem SOLOMON FARR;
EF. by and through her Guardian and
Guardian Ad Litem SOLOMON FARR;
S.F. by and through his Guardian and
Guardian Ad Litem SOLOMON FARR,
Plaintiffs,
ASSIGNED FOR ALL PURPOSES TO
HONORABLE PATRICK BRODERICK.
DEPARTMENT 16
SEPARATE STATEMENT OF ITEMS IN
DISPUTE IN SUPPORT OF DEFENDANT
ALTERNATIVE FAMILY SERVICES,
INC.’S MOTION TO COMPEL
INDEPENDENT MENTAL
EXAMINATIONS OF PLAINTIFFS
Vv.
MARK ZAPATA MARTINEZ; MARTHA
MARTINEZ; ALTERNATIVE FAMILY
SERVICES, INC.; and DOES 1 - 30,
Date: TBD
Defendants. Time: 3:00 p.m.
Dept.: 16
Complaint Filed: May 31, 2019
Trial Date: July 8, 2022
OOS
Pursuant to California Rule of Court 3.1345, Defendant ALTERNATIVE FAMILY
SERVICES, INC. (“AFS”) hereby submits this statement of disputed matters in support of its
Motion for an order compelling the independent mental examinations (“IMEs”) of Plaintiffs C.F.,
E.F., and S.F., by and through their Guardian and Guardian Ad Litem SOLOMON FARR
(collectively “Plaintiffs”).
Il
MI
-1-
SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY
SERVICES, INC.’S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFSCom dN HAH PF wBWN &
RN N YN NN NY BY Be Be Be Be ew eB Be ew ie
NIA WBS YW NH FF SO wH AANA BwWNH HE SS
28
BRADLEY, CURLEY,
BARRABEE &
KOWALSKI, P.C.
41100 Larkspur Landing
Circle, Suite 350
Larkspur, CA 94939
TEL (415) 464-8886
FAX (415) 464-8887
I. PERTINENT PROCEDURAL AND FACTUAL HISTORY
A. Overview of Case
This is an action for alleged sexual abuse brought by Plaintiffs against various Defendants,
including AFS. Plaintiffs contend that C.F. and E.F. were abused by their foster parent, Defendant
Mark Zapata Martinez, at the foster home of Mr. Martinez and his wife, Defendant Martha
Martinez, and that S.F. was traumatized due to witnessing the assaults. Plaintiffs further allege that
AFS was responsible for their placement in the foster home. (See Plaintiffs’ Complaint, attached as
Exhibit A to Request for Judicial Notice).
B. Plaintiffs’ Claimed Psychological Injuries and Need for Ongoing Treatment
for Life
During the course of discovery, AFS propounded Form Interrogatories to Plaintiffs. In their
verified responses to Form Interrogatory Nos. 6.2 [“Identify each injury you attribute to the
INCIDENT and the area of your body affected.”’] and 6.3 [“Do you still have any complaints that
you attribute to the INCIDENT?”], Plaintiffs each claimed to suffer from “severe psychological
trauma” due to the alleged abuse. In addition, in their verified responses to Form Interrogatory
No. 6.7 [Has any HEALTH CARE PROVIDER advised that you may require future or additional
treatment for any injuries that you attribute to the INCIDENT?”], Plaintiffs each claimed they
“will need ongoing therapy/psychological care, likely for life.” (See Exhibits 1-3 to Declaration
of Peter F. Finn (“Finn Decl.”)).
Cc. AFS Seeks Agreement from Plaintiffs to Performance of IMEs
On November 2, 2021, AFS’s counsel sent a meet-and-confer letter to Plaintiffs’ counsel
requesting that Plaintiffs stipulate to the performance of IMEs and outlining the proposed scope of
the IMEs. Plaintiffs’ counsel did not respond. (See 5 and Exhibit 4 to Finn Decl.).
On November 4, 2021, AFS’s counsel sent a follow-up email to Plaintiffs’ counsel
inquiring as to whether Plaintiffs would stipulate to the IMEs or whether AFS would be required to
file a motion. Plaintiffs’ counsel did not respond to this email. (See § 6 and Exhibit 5 to Finn
Decl.).
On November 5, 2021, AFS’s counsel served Notices of IMEs for all three Plaintiffs. The
contents of the Notices of IMEs is provided below. (See Exhibits 6-8 to Finn Decl.).
-2-
SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY
SERVICES, INC.’S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFSom YN DH PF BN HS
RYN NY NY NN NY Be Be eB Be ew ewe oe He
AYA WS BW ND |= COHN DWH BR WwW NY SF
28
BRADLEY, CURLEY,
BARRABEE &
KOWALSKI, P.C.
1100 Larkspur Landing
Circle, Suite 350
Larkspur, CA 94939
TEL (415) 464-8888
FAX (415) 464-8887
On November 30, 2021, Plaintiffs’ counsel served an Objection to Demand for Mental
Examination (“Objection”). The contents of Plaintiffs’ Objection is set forth below. (See Exhibit 9
to Finn Decl.).
On December 1, 2021, AFS’s counsel sent an email to Plaintiffs’ counsel in response to
Plaintiffs’ Objection. The email noted AFS’s counsel’s prior meet-and-confer efforts on the IMEs
and asked again whether Plaintiffs would agree in principal to the performance of IMEs or whether
a Court order would be required. AFS’s counsel further indicated that, assuming Plaintiffs were
agreeable in principal, the parties could then discuss the specific scope of the IMEs. Plaintiffs’
counsel did not respond to this email. (See § 11 and Exhibit 10 to Finn Decl.).
On December 28, 2021, AFS’s counsel sent another email to Plaintiffs’ counsel, following
up again on the IMEs of Plaintiffs. Plaintiffs’ counsel did not respond to this email. (See § 12 and
Exhibit 11 to Finn Decl.).
AFS’s counsel exchanged emails with Scott R. Montgomery, one of Plaintiffs’ counsel,
between January 28, 2022 and January 31, 2022 regarding mediation and stipulating to the IMEs of
Plaintiffs. As to the IMEs, Mr. Montgomery wrote, “I mean, the kids were molested, do you have
kids? Do you really need a psych exam to figure out that being molested is a bad thing?” When.
AFS’s counsel replied that the IMEs were needed, Mr. Montgomery responded: “[Y]ou need a
psych eval to figure out if molesting kids hurts them? Come on man, that’s sad.” AFS’s counsel
answered:
As far as the psych evaluations, Plaintiffs have claimed in written
discovery to require lifetime pscyhological treatment. We would assume
you will argue the same at mediation (and triad) In response, We are
entitled to evaluate the depth and severity of Plaintiffs’ emotional
injuries, potential treatment, and long-term projections. _
We remain open to mediation, and the Court typically requires the
parties to engage in some form of ADR.
Mr. Montgomery replied:
Court doesn’t require mediation or ADR in Sonoma County.
You can schedule it and set it up or we can watch you try a case.
Personally I’d prefer the latter, I don’t think you’ ve ever tried one from
what I see watching you.
(See Exhibit 12 to Finn Decl.).
-3-
SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY
SERVICES, INC.’S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFSCircle, Suite 350
Larkspur, CA 94939
TEL (415) 464-8888
FAX (415) 464-8887
On February 18, 2022 and February 22, 2022, AFS’s counsel called Mr. Montgomery’s
office and left him voice messages in an effort to follow-up with him on stipulating to IMEs of
Plaintiffs. As of the preparation of this Motion, Mr. Montgomery has not responded. (See 14 to
Finn Decl.).
III. AFS’S NOTICES OF IMES AND PLAINTIFFS’ OBJECTION
A. Notices of IMEs
In full, AFS’s Notices of IMEs of Plaintiffs each provided:
TO PLAINTIFF AND HER [HIS] ATTORNEY OF RECORD:
DATE: December 8, 2021
TIME: 9:00 a.m.
PLACE: 250 Bel Marin Keys Blvd., Suite B-4
Novato, CA 94949
At the time, date and place specified above, Defendant ALTERNATIVE FAMILY
SERVICES, INC. (“Defendant”) requests Plaintiff C.F. [E.F., and S.F.] by and through her [his]
Guardian and Guardian Ad Litem SOLOMON FARR (“Plaintiff”) to submit to an independent
mental examination, pursuant to Code of Civil Procedure § 2032.020 et al.
The independent mental examination will be conducted by licensed psychiatrist HARVEY
A. LERCHIN, M.D., on December 8, 2021, at 9:00 a.m. at 250 Bel Marin Keys Blvd., Suite B-4,
Novato, CA 94949,
The examination shall consist of an approximate 90-minute in-office assessment. Dr.
Lerchin’s examination will include a clinical interview eliciting information that may include
Plaintiff's social history, family history, educational history, past medical history, current medical
complaints, the history of the episode leading to the mental distress, prior history of emotional
distress and the history of the subsequent course of the psychological condition and treatment. In
addition, Dr. Lerchin may utilize play-therapy methods.
The examination will also consist of an approximate 2 % hour in-office informational
interview with Plaintiffs’ biological father, Solomon Farr, Sr. (Only 1 such information interview
with Mr. Farr, Sr. will be conducted collectively for all 3 Plaintiffs. The interview of Mr. Farr, Sr.
shall be conducted first, at 9:00 a.m. on December 8, 2021, to be followed in succession by each
-4-
SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY
SERVICES, INC.’S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFSoo mI Dw FF WN
KOWALSKI, P.C.
1100 Larkspur Landing
Circle, Suite 350
Larkspur, CA 94939
TEL (415) 464-8868
FAX (415) 464-8887
Plaintiff.)
B. Plaintiffs’ Objection
In full, Plaintiffs’ Objection stated:
TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD:
Plaintiffs C.F. by and through her guardian and guardian ad litem SOLOMON FARR; E.F.
by and through her guardian and guardian ad litem SOLOMON FARR; and S.F. by and through his
guardian and guardian ad litem SOLOMON FARR hereby objects to Defendant Alternative Family
Services, Inc.'s Demand for Mental Examination, which is set for December 8, 2021 at 9:00 a.m.
with Harvey A. Lerchin, M.D., on the grounds that the Defendants did not receive a Court Order to
obtain said examination. Pursuant to CCP section 2032.310 et seq, if any party desires to obtain
discovery by a mental examination, the party shall obtain leave of court by a meet and conferred
letter or by filing a motion.
In this case, the parties have not met and confer regarding Defendant Alternative Family
Services, Inc.'s request for a mental examination, the parties have not agreed to the mental
examination, and Defendant has not sought a Court Order. Accordingly, Plaintiffs will not appear
for the scheduled mental examination.
Cc. Reasons Why IMEs of Plaintiffs Should Be Compelled
Plaintiffs specified in their verified responses to AFS’s Form Interrogatories that they have
suffered “severe psychological trauma” as a result of the alleged negligence of AFS and, in turn,
“will need ongoing therapy/psychological care, likely for life.” (See Exhibits 1-3 to Finn Decl.).
Plaintiffs have directly placed their mental health — including their treatment and prognosis — in
controversy. Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-840. For comparable reasons,
good cause exists for the IMEs to be conducted. As the Vinson Court noted, “defendants must be
allowed to investigate the continued existence and severity of plaintiff's alleged damages. Jd. at
841. IMEs of Plaintiffs constitute the means available to AFS to do so.
In addition, an informational interview with Mr. Farr is essential as Plaintiffs are young
children. (See 4 1 of Plaintiffs’ Complaint [“C.F. is currently 8 years old. E.F. is currently 3 years
old. S.F. is currently 6 years old.”]). Mr. Farr is Plaintiffs’ biological father with legal and physical
-5-
SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY
SERVICES, INC.’S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFSBRADLEY. CURLEY
BARRABEE 8
KOWALSKI PC
1100 Larkspur Landing
Gucle. Suite 350
Larkspur CA 94939
TEL (415) 464-8888
FAX (415) 464-8887
custody of them. (See 4 2 of Plaintiffs’ Complaint). He has direct knowledge of Plaintiffs’ day-to-
day lives and will be able to provide background information regarding Plaintiffs that the children
themselves may not have the capability of describing due to their young age. Dr. Lerchin explains:
A critical element required in the task of performing a comprehensive
psychiatric Independent Medical Examination (IME) on a minor child is
the direct procuring by interview of background and baseline medical
and non-medical information from a reliable historian who has known
the child in the pre-examination and pre-incident era. Typically, such an
informant is the child’s parent or other long-term custodian. [§] To my
understanding, in this case, the best historian for this IME purpose is the
Plaintiffs’ father. For this reason, I have requested that the Plaintiffs’
father be made available for my interview of him during some point in
the course of the proposed IME procedure.
(See 3-4 to Dr. Lerchin’s Declaration).
Lastly, AFS’s counsel repeatedly attempted to meet-and-confer with Plaintiffs’ counsel by
letter, email, and telephone. Plaintiffs’ counsel flatly ignored the overwhelming majority of those
meet-and-confer efforts (see §{| 5, 6, 11, and 12 to Finn Decl.) and, in the rare instance when a
response was provided, resorted to simply attacking AFS’s counsel. (See Exhibit 12 to Finn Decl.).
By doing so, Plaintiffs’ counsel made it clear that Plaintiffs will not agree to the performance of the
IMEs. Accordingly, AFS has brought this Motion.
Dated: February 13, 2022 BRADLEY, CURLEY, BARRABEE &
KOWALSKIJP.C.
By:
PETER F. FINN
Attorneys for Defendant
ALTERNATIVE FAMILY SERVICES, INC.
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SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY
SERVICES. INC.°S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFS
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coo wm NIN DH PB wWDHND =| BRADLEY, CURLEY, BARRABEE & KOWALSKI, P.C. 4100 Larkspur Landing Circle, Suite 350 Larkspur, CA 94939 TEL (418) 464-8888 FAX (415) 464-8887 ARTHUR W. CURLEY, BAR NO. 60902 PETER F. FINN, BAR NO. 267810 BRADLEY, CURLEY, BARRABEE & KOWALSKI, P.C. 1100 Larkspur Landing Circle, Suite 350 Larkspur, California 94939 Telephone: (415) 464-8888 Facsimile: (415) 464-8887 Attorneys for Defendant ALTERNATIVE FAMILY SERVICES, INC. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SONOMA (UNLIMITED JURISDICTION) C.F. by and through her Guardian and ) No. SCV264540 Guardian Ad Litem SOLOMON FARR; EF. by and through her Guardian and Guardian Ad Litem SOLOMON FARR; S.F. by and through his Guardian and Guardian Ad Litem SOLOMON FARR, Plaintiffs, ASSIGNED FOR ALL PURPOSES TO HONORABLE PATRICK BRODERICK. DEPARTMENT 16 SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY SERVICES, INC.’S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFS Vv. MARK ZAPATA MARTINEZ; MARTHA MARTINEZ; ALTERNATIVE FAMILY SERVICES, INC.; and DOES 1 - 30, Date: TBD Defendants. Time: 3:00 p.m. Dept.: 16 Complaint Filed: May 31, 2019 Trial Date: July 8, 2022 OOS Pursuant to California Rule of Court 3.1345, Defendant ALTERNATIVE FAMILY SERVICES, INC. (“AFS”) hereby submits this statement of disputed matters in support of its Motion for an order compelling the independent mental examinations (“IMEs”) of Plaintiffs C.F., E.F., and S.F., by and through their Guardian and Guardian Ad Litem SOLOMON FARR (collectively “Plaintiffs”). Il MI -1- SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY SERVICES, INC.’S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFSCom dN HAH PF wBWN & RN N YN NN NY BY Be Be Be Be ew eB Be ew ie NIA WBS YW NH FF SO wH AANA BwWNH HE SS 28 BRADLEY, CURLEY, BARRABEE & KOWALSKI, P.C. 41100 Larkspur Landing Circle, Suite 350 Larkspur, CA 94939 TEL (415) 464-8886 FAX (415) 464-8887 I. PERTINENT PROCEDURAL AND FACTUAL HISTORY A. Overview of Case This is an action for alleged sexual abuse brought by Plaintiffs against various Defendants, including AFS. Plaintiffs contend that C.F. and E.F. were abused by their foster parent, Defendant Mark Zapata Martinez, at the foster home of Mr. Martinez and his wife, Defendant Martha Martinez, and that S.F. was traumatized due to witnessing the assaults. Plaintiffs further allege that AFS was responsible for their placement in the foster home. (See Plaintiffs’ Complaint, attached as Exhibit A to Request for Judicial Notice). B. Plaintiffs’ Claimed Psychological Injuries and Need for Ongoing Treatment for Life During the course of discovery, AFS propounded Form Interrogatories to Plaintiffs. In their verified responses to Form Interrogatory Nos. 6.2 [“Identify each injury you attribute to the INCIDENT and the area of your body affected.”’] and 6.3 [“Do you still have any complaints that you attribute to the INCIDENT?”], Plaintiffs each claimed to suffer from “severe psychological trauma” due to the alleged abuse. In addition, in their verified responses to Form Interrogatory No. 6.7 [Has any HEALTH CARE PROVIDER advised that you may require future or additional treatment for any injuries that you attribute to the INCIDENT?”], Plaintiffs each claimed they “will need ongoing therapy/psychological care, likely for life.” (See Exhibits 1-3 to Declaration of Peter F. Finn (“Finn Decl.”)). Cc. AFS Seeks Agreement from Plaintiffs to Performance of IMEs On November 2, 2021, AFS’s counsel sent a meet-and-confer letter to Plaintiffs’ counsel requesting that Plaintiffs stipulate to the performance of IMEs and outlining the proposed scope of the IMEs. Plaintiffs’ counsel did not respond. (See 5 and Exhibit 4 to Finn Decl.). On November 4, 2021, AFS’s counsel sent a follow-up email to Plaintiffs’ counsel inquiring as to whether Plaintiffs would stipulate to the IMEs or whether AFS would be required to file a motion. Plaintiffs’ counsel did not respond to this email. (See § 6 and Exhibit 5 to Finn Decl.). On November 5, 2021, AFS’s counsel served Notices of IMEs for all three Plaintiffs. The contents of the Notices of IMEs is provided below. (See Exhibits 6-8 to Finn Decl.). -2- SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY SERVICES, INC.’S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFSom YN DH PF BN HS RYN NY NY NN NY Be Be eB Be ew ewe oe He AYA WS BW ND |= COHN DWH BR WwW NY SF 28 BRADLEY, CURLEY, BARRABEE & KOWALSKI, P.C. 1100 Larkspur Landing Circle, Suite 350 Larkspur, CA 94939 TEL (415) 464-8888 FAX (415) 464-8887 On November 30, 2021, Plaintiffs’ counsel served an Objection to Demand for Mental Examination (“Objection”). The contents of Plaintiffs’ Objection is set forth below. (See Exhibit 9 to Finn Decl.). On December 1, 2021, AFS’s counsel sent an email to Plaintiffs’ counsel in response to Plaintiffs’ Objection. The email noted AFS’s counsel’s prior meet-and-confer efforts on the IMEs and asked again whether Plaintiffs would agree in principal to the performance of IMEs or whether a Court order would be required. AFS’s counsel further indicated that, assuming Plaintiffs were agreeable in principal, the parties could then discuss the specific scope of the IMEs. Plaintiffs’ counsel did not respond to this email. (See § 11 and Exhibit 10 to Finn Decl.). On December 28, 2021, AFS’s counsel sent another email to Plaintiffs’ counsel, following up again on the IMEs of Plaintiffs. Plaintiffs’ counsel did not respond to this email. (See § 12 and Exhibit 11 to Finn Decl.). AFS’s counsel exchanged emails with Scott R. Montgomery, one of Plaintiffs’ counsel, between January 28, 2022 and January 31, 2022 regarding mediation and stipulating to the IMEs of Plaintiffs. As to the IMEs, Mr. Montgomery wrote, “I mean, the kids were molested, do you have kids? Do you really need a psych exam to figure out that being molested is a bad thing?” When. AFS’s counsel replied that the IMEs were needed, Mr. Montgomery responded: “[Y]ou need a psych eval to figure out if molesting kids hurts them? Come on man, that’s sad.” AFS’s counsel answered: As far as the psych evaluations, Plaintiffs have claimed in written discovery to require lifetime pscyhological treatment. We would assume you will argue the same at mediation (and triad) In response, We are entitled to evaluate the depth and severity of Plaintiffs’ emotional injuries, potential treatment, and long-term projections. _ We remain open to mediation, and the Court typically requires the parties to engage in some form of ADR. Mr. Montgomery replied: Court doesn’t require mediation or ADR in Sonoma County. You can schedule it and set it up or we can watch you try a case. Personally I’d prefer the latter, I don’t think you’ ve ever tried one from what I see watching you. (See Exhibit 12 to Finn Decl.). -3- SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY SERVICES, INC.’S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFSCircle, Suite 350 Larkspur, CA 94939 TEL (415) 464-8888 FAX (415) 464-8887 On February 18, 2022 and February 22, 2022, AFS’s counsel called Mr. Montgomery’s office and left him voice messages in an effort to follow-up with him on stipulating to IMEs of Plaintiffs. As of the preparation of this Motion, Mr. Montgomery has not responded. (See 14 to Finn Decl.). III. AFS’S NOTICES OF IMES AND PLAINTIFFS’ OBJECTION A. Notices of IMEs In full, AFS’s Notices of IMEs of Plaintiffs each provided: TO PLAINTIFF AND HER [HIS] ATTORNEY OF RECORD: DATE: December 8, 2021 TIME: 9:00 a.m. PLACE: 250 Bel Marin Keys Blvd., Suite B-4 Novato, CA 94949 At the time, date and place specified above, Defendant ALTERNATIVE FAMILY SERVICES, INC. (“Defendant”) requests Plaintiff C.F. [E.F., and S.F.] by and through her [his] Guardian and Guardian Ad Litem SOLOMON FARR (“Plaintiff”) to submit to an independent mental examination, pursuant to Code of Civil Procedure § 2032.020 et al. The independent mental examination will be conducted by licensed psychiatrist HARVEY A. LERCHIN, M.D., on December 8, 2021, at 9:00 a.m. at 250 Bel Marin Keys Blvd., Suite B-4, Novato, CA 94949, The examination shall consist of an approximate 90-minute in-office assessment. Dr. Lerchin’s examination will include a clinical interview eliciting information that may include Plaintiff's social history, family history, educational history, past medical history, current medical complaints, the history of the episode leading to the mental distress, prior history of emotional distress and the history of the subsequent course of the psychological condition and treatment. In addition, Dr. Lerchin may utilize play-therapy methods. The examination will also consist of an approximate 2 % hour in-office informational interview with Plaintiffs’ biological father, Solomon Farr, Sr. (Only 1 such information interview with Mr. Farr, Sr. will be conducted collectively for all 3 Plaintiffs. The interview of Mr. Farr, Sr. shall be conducted first, at 9:00 a.m. on December 8, 2021, to be followed in succession by each -4- SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY SERVICES, INC.’S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFSoo mI Dw FF WN KOWALSKI, P.C. 1100 Larkspur Landing Circle, Suite 350 Larkspur, CA 94939 TEL (415) 464-8868 FAX (415) 464-8887 Plaintiff.) B. Plaintiffs’ Objection In full, Plaintiffs’ Objection stated: TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD: Plaintiffs C.F. by and through her guardian and guardian ad litem SOLOMON FARR; E.F. by and through her guardian and guardian ad litem SOLOMON FARR; and S.F. by and through his guardian and guardian ad litem SOLOMON FARR hereby objects to Defendant Alternative Family Services, Inc.'s Demand for Mental Examination, which is set for December 8, 2021 at 9:00 a.m. with Harvey A. Lerchin, M.D., on the grounds that the Defendants did not receive a Court Order to obtain said examination. Pursuant to CCP section 2032.310 et seq, if any party desires to obtain discovery by a mental examination, the party shall obtain leave of court by a meet and conferred letter or by filing a motion. In this case, the parties have not met and confer regarding Defendant Alternative Family Services, Inc.'s request for a mental examination, the parties have not agreed to the mental examination, and Defendant has not sought a Court Order. Accordingly, Plaintiffs will not appear for the scheduled mental examination. Cc. Reasons Why IMEs of Plaintiffs Should Be Compelled Plaintiffs specified in their verified responses to AFS’s Form Interrogatories that they have suffered “severe psychological trauma” as a result of the alleged negligence of AFS and, in turn, “will need ongoing therapy/psychological care, likely for life.” (See Exhibits 1-3 to Finn Decl.). Plaintiffs have directly placed their mental health — including their treatment and prognosis — in controversy. Vinson v. Superior Court (1987) 43 Cal.3d 833, 839-840. For comparable reasons, good cause exists for the IMEs to be conducted. As the Vinson Court noted, “defendants must be allowed to investigate the continued existence and severity of plaintiff's alleged damages. Jd. at 841. IMEs of Plaintiffs constitute the means available to AFS to do so. In addition, an informational interview with Mr. Farr is essential as Plaintiffs are young children. (See 4 1 of Plaintiffs’ Complaint [“C.F. is currently 8 years old. E.F. is currently 3 years old. S.F. is currently 6 years old.”]). Mr. Farr is Plaintiffs’ biological father with legal and physical -5- SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY SERVICES, INC.’S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFSBRADLEY. CURLEY BARRABEE 8 KOWALSKI PC 1100 Larkspur Landing Gucle. Suite 350 Larkspur CA 94939 TEL (415) 464-8888 FAX (415) 464-8887 custody of them. (See 4 2 of Plaintiffs’ Complaint). He has direct knowledge of Plaintiffs’ day-to- day lives and will be able to provide background information regarding Plaintiffs that the children themselves may not have the capability of describing due to their young age. Dr. Lerchin explains: A critical element required in the task of performing a comprehensive psychiatric Independent Medical Examination (IME) on a minor child is the direct procuring by interview of background and baseline medical and non-medical information from a reliable historian who has known the child in the pre-examination and pre-incident era. Typically, such an informant is the child’s parent or other long-term custodian. [§] To my understanding, in this case, the best historian for this IME purpose is the Plaintiffs’ father. For this reason, I have requested that the Plaintiffs’ father be made available for my interview of him during some point in the course of the proposed IME procedure. (See 3-4 to Dr. Lerchin’s Declaration). Lastly, AFS’s counsel repeatedly attempted to meet-and-confer with Plaintiffs’ counsel by letter, email, and telephone. Plaintiffs’ counsel flatly ignored the overwhelming majority of those meet-and-confer efforts (see §{| 5, 6, 11, and 12 to Finn Decl.) and, in the rare instance when a response was provided, resorted to simply attacking AFS’s counsel. (See Exhibit 12 to Finn Decl.). By doing so, Plaintiffs’ counsel made it clear that Plaintiffs will not agree to the performance of the IMEs. Accordingly, AFS has brought this Motion. Dated: February 13, 2022 BRADLEY, CURLEY, BARRABEE & KOWALSKIJP.C. By: PETER F. FINN Attorneys for Defendant ALTERNATIVE FAMILY SERVICES, INC. -6- SEPARATE STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANT ALTERNATIVE FAMILY SERVICES. INC.°S MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATIONS OF PLAINTIFFS