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COURTNEY LOVE COBAIN, et al., Plaintiffs, vs. DAVID GROHL. et al., Defendants.	) ) ) ) ) ) ) ) ) ) ) )	No. 01-2-13059-5 SEA ORDER DENYING DEFENDANTS' MOTION TO COMPEL MENTAL EXAMINATION

Defendants Grohl and Novoselic seek to have this Court order a mental examination of plaintiff Courtney Love.

Grohl and Novoselic assert that Love's mental capacity at two different time periods is relevant to the issues in this case. The two time periods are (i) 1997, when Love signed the Limited Liability Company Agreement of Nirvana, L.L.C. (hereinafter "the Agreement"), and (ii) the present, in which defendants and plaintiffs are battling over management choices for the L.L.C.

Events of 1997

Defendants contend that Courtney Love was competent in 1997 when she signed the Agreement, and that she therefore cannot nullify or otherwise invalidate the Agreement on the grounds of lack of capacity at the time of its formation.

A fair reading of plaintiffs' Complaint suggests that plaintiffs originally sought to invalidate the Agreement at least in part due to plaintiff Love's possible lack of capacity at the time the Agreement was signed. In oral argument on this Motion, plaintiffs' counsel unequivocally disavowed any such reading and sought to voluntarily dismiss that claim. To avoid any further confusion, this Court grants plaintiffs' oral Motion of Voluntary Dismissal. Under CR 41(a), this is a matter of right for any plaintiff.

This dismissal has two significant consequences for the trial of plaintiffs' claims. First, to the extent that plaintiffs continue to seek to invalidate the Agreement on the grounds of fraud or misrepresentation, plaintiffs must now be prepared to prove that any allegedly wrongful acts of defendants or their representatives would have deceived or misled a reasonable person under the facts applicable to this case. Second, any claim by Love of voluntary ingestion of drugs or alcohol in 1997 will provide no defense against enforcement of the Agreement as long as defendants did not induce her to do so or otherwise knowingly attempt to take advantage of any substance-induced diminished capacity at the time of signing.

As a result of the Court's dismissal of any claim of lack of capacity, there is no longer a dispute between the parties relating to the events of 1997 for which a mental examination would be appropriate.

The Present Day

Although Grohl and Novoselic argued that Courtney Love was competent in 1997, they have also asserted that she is no longer competent and that as a result she must be removed from the L.L.C. and her votes cast not by her but by her Designated Representative. The incapacity which could lead to such a result is defined in Paragraph 8.7 of the Agreement, which states in pertinent part:

For purposes of this Agreement, a Member … shall be treated as having become "Incapacitated" upon … the date that the LLC receives a written opinion from … a physician mutually designated by the LLC (i.e., by a vote of the Members other than the Member whose incapacity … is in question …) to the effect that such Member … is incapacitated as such term is defined under Chapter 11.88.010(1)(b) of the Revised Code of Washington (i.e., "demonstrated an inability to adequately manage property or financial affairs") and that incapacity can reasonably expect to continue for a period of at least six (6) months from the date of such opinion. … Each Member … hereby covenants and agrees to make themselves … available for examination within a reasonable time to cooperate with any physician so designated by the Members of the LLC to determine whether such Member … is incapacitated.

RCW 11.88.010(1)(b) is explicitly incorporated in that paragraph of the Agreement. That subsection of the statute reads as follows:

…[A] person may be deemed incapacitated as to the person's estate when the superior court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.

Defendants designated no mental health or other professional to support an argument that plaintiff Courtney Love is at such risk for a six-month or any other period. Nor did they explain what particular specialty, expertise or Board Certification they would seek to employ for an examination designed to address that issue. Defendants provided no professional support for the proposition that plaintiff Courtney Love has recently developed any condition described in the psychiatrists' manual known as the DSM-IVR.

Instead, defendants' counsel argued that the parties had a business disagreement over whether, when and how to release certain previously unreleased Nirvana recordings. Although counsel's original argument broadly asserted that plaintiff Love was unreasonable to have disagreed with defendants' proposed release plan, counsel conceded that he was not saying and indeed could not say that no reasonable person would take plaintiff Love's position that the recordings should not yet be released or her position that holding them back for a different release could ultimately benefit the parties.

In sum, defendants have cited no mental incapacity. Defendants have cited a business disagreement as to which reasonable minds could differ.

Defendants argue that this is sufficient. Defendants argue that Paragraph 8.7 of the Agreement does not require them to make a showing of probable cause to believe that plaintiff Courtney Love is incapacitated in order to demand a mental examination.

The Court has carefully reviewed the entire Agreement, with specific attention to Article 8, of which Paragraph 8.7 is one portion. Article 8 addresses transfer or conversion of L.L.C. interests, admission of new Members, and the death or incapacity of Members. That section of the Agreement is designed to assure the continuity of the parties' business interests in the event of various possible contingencies, not limited to death or disability of one of the Members. On its face, that section is not designed to provide a means of resolving marketing disputes, however deeply felt.

It is true that, standing alone, Paragraph 8.7 does not state a specific precondition for its exercise. However, plaintiffs and defendants agree that all contracts in this state carry within them a duty of good faith. While the contract language in Paragraph 8.7 may not require full formal proof of "good cause" or "probable cause" as a precondition for a mental examination, there must at the very least be a reasonable suggestion of disability or incapacity in order to justify a procedure as invasive as a mental examination. Good faith requires no less.

In the absence of a good faith suggestion from defendants of an identifiable mental problem or condition reasonably expected to last at least six months, this Court cannot ignore or discount the likelihood that requiring a mental examination in response to a marketing dispute would serve no purpose other than to contribute a circus-like atmosphere to the trial. Defendants' Motion is, therefore, DENIED.

There is one caveat, however. Not entirely without reason do defendants claim that Courtney Love is "mercurial." If at her deposition, Courtney Love or her counsel should disregard this Order and attempt to revive her now-dismissed claim of lack of capacity, it may become necessary to revisit the matter. Indeed, should plaintiffs so act, it would give substance to what on the current record is defendants' misguided litigative zeal and could instead provide defendants what they now lack: a suggestion of a particular category of incapacity or mental disability as to which an examination could be appropriate.

THIS ORDER IS ENTERED this 24th day of April, 2002.

	Judge Robert H. Alsdorf KING COUNTY SUPERIOR COURT