This case was last updated from Los Angeles County Superior Courts on 10/08/2022 at 09:09:02 (UTC).

ALPHA DAVIS VS CITY OF EL MONTE ET AL

Case Summary

On 09/27/2017 ALPHA DAVIS filed a Personal Injury - Motor Vehicle lawsuit against CITY OF EL MONTE. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judges overseeing this case are EDWARD B. MORETON, JR., WILLIAM A. CROWFOOT and LAURA A. SEIGLE. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7840

  • Filing Date:

    09/27/2017

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

EDWARD B. MORETON, JR.

WILLIAM A. CROWFOOT

LAURA A. SEIGLE

 

Party Details

Plaintiff

DAVIS ALPHA

Defendants

EL MONTE CITY OF

TATE MARTHA

DEPARTMENT EL MONTE POLICE

Not Classified By Court

BAIRD CYNTHIA

KECK MEDICINE OF USC

LMFT

Attorney/Law Firm Details

Plaintiff Attorney

SU AIHUI

Defendant Attorney

GALLAGHER TERRENCE J. ESQ.

 

Court Documents

Offer to Compromise

6/2/2022: Offer to Compromise

Notice of Settlement

6/22/2022: Notice of Settlement

Order to Show Cause re: Dismissal (Settlement)

6/30/2022: Order to Show Cause re: Dismissal (Settlement)

Order to Show Cause re: Dismissal (Settlement)

6/30/2022: Order to Show Cause re: Dismissal (Settlement)

Request for Dismissal

9/28/2022: Request for Dismissal

Notice - NOTICE OF CHANGE OF HANDLING ATTORNEY

5/12/2022: Notice - NOTICE OF CHANGE OF HANDLING ATTORNEY

Motion re: - MOTION RE: MOTION TO ENFORCE NEURO PSYCH EXAM ORDER)

1/7/2022: Motion re: - MOTION RE: MOTION TO ENFORCE NEURO PSYCH EXAM ORDER)

Declaration - DECLARATION OF G. SETH MITCHELL IN SUPPORT OF PLAINTIFF ALPHA DAVIS'S OPPOSITION TO DEFENDANTS MOTION TO ENFORCE THE COURT'S SEPTEMBER 30, 2021 ORDER COMPELLING PLAINTIFF ALPHA DAVIS TO

1/20/2022: Declaration - DECLARATION OF G. SETH MITCHELL IN SUPPORT OF PLAINTIFF ALPHA DAVIS'S OPPOSITION TO DEFENDANTS MOTION TO ENFORCE THE COURT'S SEPTEMBER 30, 2021 ORDER COMPELLING PLAINTIFF ALPHA DAVIS TO

Opposition - OPPOSITION TO DEFENDANTS MOTION TO ENFORCE THE COURT'S SEPTEMBER 30, 2021 ORDER COMPELLING PLAINTIFF ALPHA DAVIS TO SUBMIT TO NEUROPSYCHOLOGICAL EXAMINATION AND REQUEST FOR SANCTIONS

1/20/2022: Opposition - OPPOSITION TO DEFENDANTS MOTION TO ENFORCE THE COURT'S SEPTEMBER 30, 2021 ORDER COMPELLING PLAINTIFF ALPHA DAVIS TO SUBMIT TO NEUROPSYCHOLOGICAL EXAMINATION AND REQUEST FOR SANCTIONS

Objection - OBJECTION DEFENDANTS EVIDENTIARY OBJECTIONS IN SUPPORT OF REPLY RE: DEFENDANTS MOTION TO ENFORCE THE COURTS SEPTEMBER 30, 2021 ORDER COMPELLING PLAINTIFF ALPHA DAVIS TO SUBMIT TO NEUROPSYC

1/27/2022: Objection - OBJECTION DEFENDANTS EVIDENTIARY OBJECTIONS IN SUPPORT OF REPLY RE: DEFENDANTS MOTION TO ENFORCE THE COURTS SEPTEMBER 30, 2021 ORDER COMPELLING PLAINTIFF ALPHA DAVIS TO SUBMIT TO NEUROPSYC

Reply - REPLY IN SUPPORT OF DEFENDANTS MOTION TO ENFORCE THE COURTS SEPTEMBER 30, 2021 ORDER COMPELLING PLAINTIFF ALPHA DAVIS TO SUBMIT TO NEUROPSYCHOLOGICAL EXAMINATION BY DR. KYLE BOONE AND REQUEST

1/27/2022: Reply - REPLY IN SUPPORT OF DEFENDANTS MOTION TO ENFORCE THE COURTS SEPTEMBER 30, 2021 ORDER COMPELLING PLAINTIFF ALPHA DAVIS TO SUBMIT TO NEUROPSYCHOLOGICAL EXAMINATION BY DR. KYLE BOONE AND REQUEST

Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER TO ENFORCE NEUROPSYCH EXAM ORDER)

2/3/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER TO ENFORCE NEUROPSYCH EXAM ORDER)

Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER TO ENFORCE NEUROPSYCH EXAM ORDER)

2/3/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER TO ENFORCE NEUROPSYCH EXAM ORDER)

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

2/17/2022: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 02/17/2022

2/17/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 02/17/2022

Notice of Ruling

2/23/2022: Notice of Ruling

Ex Parte Application - EX PARTE APPLICATION FOR TRIAL CONTINUANCE; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF DANIEL LEE AND EXHIBITS IN SUPPORT THEREOF

12/20/2021: Ex Parte Application - EX PARTE APPLICATION FOR TRIAL CONTINUANCE; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF DANIEL LEE AND EXHIBITS IN SUPPORT THEREOF

Opposition - OPPOSITION TO DEFENDANTS EX PARTE APPLICATION FOR TRIAL CONTINUANCE

12/21/2021: Opposition - OPPOSITION TO DEFENDANTS EX PARTE APPLICATION FOR TRIAL CONTINUANCE

58 More Documents Available

 

Docket Entries

  • 09/28/2022
  • DocketRequest for Dismissal; Filed by Alpha Davis (Plaintiff)

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  • 07/15/2022
  • Docketat 08:30 AM in Department 27; Jury Trial - Not Held - Vacated by Court

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  • 07/01/2022
  • Docketat 10:00 AM in Department 27; Final Status Conference - Not Held - Vacated by Court

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  • 06/30/2022
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by Clerk

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  • 06/30/2022
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by Clerk

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  • 06/22/2022
  • DocketNotice of Settlement; Filed by El Monte, City of (Defendant)

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  • 06/03/2022
  • Docketat 11:00 AM in Department 27; Informal Discovery Conference (IDC)

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  • 06/02/2022
  • DocketOffer to Compromise; Filed by El Monte Police Department (Defendant); El Monte, City of (Defendant); Martha Tate (Defendant)

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  • 05/12/2022
  • DocketNotice (of Change of Handling Attorney); Filed by Alpha Davis (Plaintiff)

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  • 04/20/2022
  • Docketat 11:00 AM in Department 27; Informal Discovery Conference (IDC)

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96 More Docket Entries
  • 03/01/2018
  • DocketProof-Service/Summons; Filed by Alpha Davis (Plaintiff)

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  • 03/01/2018
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 03/01/2018
  • DocketPROOF OF SERVICE BY MAIL

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  • 02/28/2018
  • DocketProof of Service by Mail; Filed by Alpha Davis (Plaintiff)

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  • 02/28/2018
  • DocketPROOF OF SERVICE BY MAIL

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  • 02/28/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/28/2018
  • DocketProof-Service/Summons; Filed by Alpha Davis (Plaintiff)

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  • 09/27/2017
  • DocketComplaint

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  • 09/27/2017
  • DocketSummons; Filed by Alpha Davis (Plaintiff)

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  • 09/27/2017
  • DocketComplaint; Filed by Alpha Davis (Plaintiff)

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Tentative Rulings

Case Number: ****7840 Hearing Date: February 3, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ALPHA DAVIS,

Plaintiff(s),

vs.

CITY OF EL MONTE, et al.,

Defendant(s).

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CASE NO.: ****7840

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO ENFORCE COURT ORDER COMPELLING PLAINT’FF'S NEUROPSYCHOLOGICAL EXAMINATION; REQUEST FOR TERMINATING, ISSUE, AND MONETARY SANCTIONS

Dept. 27

1:30 p.m..

February 3, 2022

On September 27, 2017, Plaintiff Alpha Davis filed this action against Defendants City of El Monte, El Monte Police Department, and Martha Tate (collectively, “Defendants”) arising from an October 5, 2015, auto accident. On September 30, 2021, the Court granted Defendants’ motion for an order compelling the neuropsychological examination of Plaintiff by Kyle Brauer Boone, Ph.D. (“Dr. Boone”).

On January 7, 2022, Defendants filed this motion to enforce the Court’s September 30 Order after Plaintiff refused to submit to the examination without recording it. Defendants contend that the Court specifically prohibited Plaintiff from recording the examination and delivering the recording to Plaintiff’s counsel. Defendant also seeks terminating, issue, and monetary sanctions.

In reaching its ruling on September 30, 2021, the Court specifically considered Plaintiff’s request to have the recording of her examination (as well as all raw data and reports) be sent to her attorney. Focusing on Plaintiff’s demand that any audio recording, raw data, and reports be sent to Plaintiff’s counsel, the Court rejected this proposal as a condition of Plaintiff’s examination.

Plaintiff correctly states that the Discovery Act specifically authorizes that both the examiner and the examinee have the right to record a mental examination by audio technology. (Code Civ. Proc. 2032.530 (a).) Therefore, the Court cannot prevent Plaintiff from doing so. However, the Court also recognizes that the exam questions are deemed proprietary and that the APA Ethical Guidelines require that psychologists “maintain test security” and prevent dissemination of the tests and test data to non-psychologists. This is why the Court rejected Plaintiff’s request for Dr. Boone’s recording and raw testing data to be released to her attorney. The Court mistakenly believed that this instruction would be sufficient for the parties to proceed with the examination without any additional disputes; but it appears that the Court should have been more specific in identifying who should have access to any recording, tests, or raw data from this neuropsychological examination.

Therefore, the Court now specifically clarifies its September 30, 2021 Order to preclude any recording, raw data, or testing materials from the mental examination with Dr. Boone from being disseminated to Plaintiff’s attorney or any non-party to the litigation other than any licensed psychologist that Plaintiff chooses to retain as an expert in this action, regardless of whether Plaintiff or Dr. Boone records the examination. The recording and data are to be accessed by Dr. Boone, the Court, and Plaintiff’s relevant expert(s) only. Plaintiff is to submit to an examination as outlined in the rest of the September 30, 2021 order. The parties are ordered to meet and confer to determine a mutually convenient date.

Both parties overreached in interpreting the Code of Civil Procedure and the Court’s September 30, 2021 order. Defendants assumed that barring the production of Dr. Boone’s audio recording to anyone other than Plaintiff’s expert would preclude Plaintiff from making her own recording, while Plaintiff split hairs in assuming that any recording she made could be shared with anybody else, even though the Court refused to force Dr. Boone to turn over that same material to Plaintiff’s attorney and specified that the raw data was only to be released to Plaintiff’s expert. Accordingly, the Court denies all requests for sanctions in connection with the motion and opposition.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.



b'

Case Number: ****7840 Hearing Date: September 30, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ALPHA DAVIS,

Plaintiff(s),

vs.

CITY OF EL MONTE, et al.,

Defendant(s).

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CASE NO.: ****7840

[TENTATIVE] ORDER RE: MOTION TO COMPEL NEUROPHYSICAL EXAMINATION OF PLAINTIFF

Dept. 27

1:30 p.m.

September 30, 2021

On September 27, 2017, Plaintiff Alpha Davis filed this action against Defendants City of El Monte, El Monte Police Department, and Martha Tate (collectively, “Defendants”) arising from an October 5, 2015, auto accident. Defendants move for an order compelling the neuropsychological examination of Plaintiff by Kyle Brauer Boone, Ph.D. (“Dr. Boone”).

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc., ; 2032.220, subd. (a).) Where any party seeks to obtain discovery by a physical examination other than that described in Section 2032.220, or by a mental examination, the party shall obtain leave of the court. (Code Civ. Proc., ; 2032.310, subd. (a).)

A mental examination shall 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. (Code Civ. Proc., ; 2032.020, subd. (c)(1).) “The only statutorily authorized justification for ordering a mental examination is that the ‘mental condition’ of the examinee is ‘in controversy.’” (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1886.) In the absence of an allegation that plaintiff has any current mental injury as a result of defendant’s alleged conduct, her present mental condition is not directly relevant. (Ibid.) Further, “[m]ental examinations are not authorized for the purpose of testing a person’s ‘credibility.’” (Ibid.)

A motion for an examination shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination, and shall be accompanied by a meet and confer declaration. (Code Civ. Proc., ; 2032.310, subd. (b).) The Court shall grant the motion only for good cause shown. (Code Civ. Proc., ; 2032.310, subd. (a).) “The way to describe these ‘diagnostic tests and procedures’–fully and in detail—is to list them by name.” (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.)

Defendants contend a mental examination is appropriate because Plaintiff is claiming that she sustained a mild traumatic brain injury. She testified in deposition that she was and is experiencing “memory loss, balance issues, as well as other symptoms associated with her mild TBI claim.” (Motion, 3:6-8.) Defendants submit an excerpt from Plaintiff’s deposition transcript showing that Plaintiff testified to having “impaired memory” as well as sadness, depression, anxiety, and nervousness. (Defs.’ Ex. A, 357:20-14; 359:2-9; 359:22-25.) Plaintiff also stated she had daily headaches for several months after the accident and now she suffers from about two to four headaches a month. (Id. at 360:15-22; 361:3-8.) She further states she experienced difficulty thinking clearly or with confusion almost daily for two to three months and has glare and noise sensitivity. (Id., 363:4-21, 364:19-24.) She also identifies other problems such as nausea, loss of balance, vomiting, and weakness in her arms and legs. (Id., 368:6-9; 370:2-5; 370:18-23; 376:20-25.)

In opposition, Plaintiff makes three arguments. First, Plaintiff argues that the motion is defective because it fails to identify the manner, conditions, and scope of the examination. Second, Plaintiff argues that a mental examination is inappropriate because she has not designated a neuropsychological expert. Third, Plaintiff argues that if Defendants’ motion is granted, she should be entitled to record the entire examination and produce the recording, the raw data, and reports to Plaintiff’s attorney.

First, in response to the claim that the motion does not specify the scope of the examination, Defendants submit a supplemental declaration from Dr. Boone. Dr. Boone identifies the universe of tests that may be performed at the examination and explains that they “reserve the right to administer any additional measure not listed below if required to assist the trier of fact in this matter.” (Supp. Boone Decl., ¶ 3.) Absent any objection to a specific test, the Court finds this list sufficient to satisfy the requirements for this motion.

Next, whether Plaintiff is designating a neuropsychological expert is immaterial to whether a mental examination may be performed. If Plaintiff is alluding to the mechanism provided by Code of Civil Procedure section 2032.320 to avoid submitting to a mental examination, her argument fails. Section 2032.320(c) requires that a plaintiff stipulate that: (1) no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages, and (2) no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed. Plaintiff does not argue that she is claiming garden variety emotional distress damages. Instead, she admits that she is claiming “depression, anxiety and sleep disturbance” stemming from the trauma of the accident as well as her physical injuries, which is a classic case of placing one’s mental condition at issue.

Last, Plaintiff’s request for Dr. Boone to record the examination and produce the recording as well as all raw data and reports to Plaintiff’s attorney is denied. Per Code of Civil Procedure section 2032.610, a party that submitted to a mental examination has the option to demand that the party that requested the examination produce “[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.” (Code Civ. Proc., ; 2032.610, subd. (a).) However, courts have held that section 2032.610 does not include the production of testing materials, including the test questions and responses. (See Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 273; Roe v. Superior Court (2015) 234 Cal.App.4th 138, 149.) As Defendants represent that Plaintiff’s neuropsychological expert would be entitled to the raw data, the Court concludes that Plaintiff’s interests are adequately protected.

Defendants’ motion is GRANTED and Plaintiff is ordered to appear for an examination with Dr. Boone within 30 days of the date of this notice. The scope of the examination will be as described in Dr. Boone’s reply declaration.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.

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b'

Case Number: ****7840 Hearing Date: August 9, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ALPHA DAVIS,

Plaintiff(s),

vs.

CITY OF EL MONTE, et al.

Defendant(s).

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CASE NO.: ****7840

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

Dept. 27

8:30 a.m.

August 9, 2021

On September 27, 2017, Plaintiff Alpha Davis filed this action against Defendants City of El Monte, El Monte Police Department, and Martha Tate arising from an October 5, 2015 auto accident. On April 5, 2021, Defendants issued a deposition subpoena and amended notice of deposition of Cynthia Baird, LMFT (“Baird”) scheduled for May 6, 2021. Defendants demanded Baird produce Plaintiffs’ records from January 1, 2010 to the present relating to

any and all psychological and/or mental health conditions, complaints, or disorders, and/or any and all neurological, and/or neuropsychological conditions, complaints, or disorders, including, but not limited to depression, anxiety disorders, bipolar disorder, ADHD, autism spectrum disorders, anorexia nervosa, bulimia nervosa, schizophrenia, personality disorders, headaches, concussion, dizziness, lightheadedness, confusion, ringing in the ears, loss of consciousness, seizures, nausea, vomiting, concentration, cognitive, balance or coordination problems, disorientation, inability to focus the eyes, abnormal eye movements, memory loss, vision or hearing loss and/or bruising, swelling, fracture, or edema of the head, brain, or skull.

Baird and Keck Medicine of USC served objections to the deposition subpoena on April 30, 2021. This motion followed on July 2, 2021 to compel Baird’s compliance with the deposition subpoena.

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records. (Code Civ. Proc., ; 2020.010.) A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., ; 2020.020.)

When a plaintiff puts her health and physical condition at issue, the privacy and privileges that normally attach to such sensitive information are “substantially lowered by the very nature of the action.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.) The Court must “balance the public need against the weight of the privacy right” and only serious invasions of privacy will bar discovery. (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) There is not an egregious invasion of privacy every time there is a request for private information and courts must “place the burden on the party asserting a privacy interest to establish its extent and seriousness of the prospective invasion.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

However, “although in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient . . . privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a plaintiff’s past medical history to scrutiny.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 849.)

Generally, the burden is on the party seeking the constitutionally protected information to establish direct relevance. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.) The psychotherapist-patient privilege “is too important to be brushed aside when the mental condition of the plaintiff may be only peripherally involved” and in order for there to be direct relevance to Plaintiff’s mental condition, there must be “specific averments or reasonable interpretations drawn from the pleading which clearly place mental condition in issue.” (Ibid.) However, “[b]ecause only the patient, and not the party seeking disclosure, knows both the nature of the ailments for which recovery is sought and the general content of the psychotherapeutic communications, the burden rests upon the patient initially to submit some showing that a given confidential communication is not directly related to the issue he has tendered to the court.” (In re Lifschultz (1970) 2 Cal.3d 415, 436.)

Plaintiff testified that she began seeing Baird, a counselor, for issues unrelated to the accident, including her family and her work. (Mitchell Decl., Ex. 1.) She also specified that she was having problems with sleeping, had started developing depression, and anxiety because of the accident. (Id.) Plaintiff’s counsel declares that Plaintiff began treating with Baird in 2011, but this testimony lacks foundation and is therefore not considered. Nevertheless, Plaintiff has met her initial burden to establish that some of her records from the last ten years are unrelated to her complaints arising from the car accident.

Next, the subpoena to Baird is overbroad. Defendants request documents that are wholly unrelated to Plaintiff’s complaints regarding insomnia, depression, and anxiety, such as eating disorders, ADHD, autism, schizophrenia, etc.

Moreover, Defendants’ reliance on Plaintiff’s mild TBI as a reason to delve into her entire psychological records is unavailing. Defendants have not established that Plaintiff’s psychological records are directly relevant to her mild TBI claim. Defendant refers vaguely to headaches and cognitive issues but does not describe the specific conditions or symptoms of a TBI which would overlap with Plaintiff’s psychological injuries and justify the production of ten years’ worth of psychological records.

Accordingly, Defendants’ motion to compel compliance is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.

Dated this 9th day of August 2021

Hon. Edward B. Moreton, Jr.

Judge of the Superior Court

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Case Number: ****7840    Hearing Date: March 8, 2021    Dept: 27

On September 27, 2017, Plaintiff Alpha Davis (“Plaintiff”) filed this action against Defendants and Martha Tate (collectively, “Defendants”) arising from an auto accident.  Plaintiff was deposed on November 1, 2018.  On September 14, 2020, Defendants filed this Motion seeking

Defense counsel states that on March 16, 2020, Plaintiff informed Defendantthat she is adding a claim for a mild traumatic brain injury (“mild TBI”).  (Lee Decl., ¶ 5.)  Defendants also argue a second deposition is warranted because Plaintiff was injured in a fall in August 2019 at an LA Fitness gym swimming pool and obtained subsequent medical treatment, which Defendants claim is relevant to her damages.  

“Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.”  (Code of Civ. Proc., ; 2025.610, subd. (a).)  However, the Court, for good cause shown, may grant leave to take a subsequent deposition.  (Code of Civ. Proc., ; 2025.610, subd. (b).)  Good Carlson v. Superior Court  1961) 56 Cal.2d 431, 439.) 

In opposition, Plaintiff argues there Plaintiff states no expert has concluded that she has suffered a mild TBI, only that her injuries were associated with a mild TBI.  Plaintiff contends that the remark about a mild TBI was made by a mediator to defense counsel, not by Plaintiff.  

Plaintiff appears to think that because she cannot provide an expert medical opinion as to her injuries, being deposed a second time will be fruitless.  However, Plaintiff could testify as to the facts surrounding her fall.  Plaintiff does not explain how her subsequent fall in 2019 may or may not have aggravated her injuries from the car accident, only that the rib fracture was documented.  Plaintiff can also testify as to the status of her injuries, as over 2 years have passed since she was first deposed in November 2018.  

Curiously, Plaintiff does not preclude the possibility that she mTBI mTBI.  She is not a doctor and cannot be held to that standard.  Further, this does not mean that she failed to disclose all of her injuries, as she clearly did.  At the same time, it is not even clear if the neurologists will opine that she suffered from an mTBI.”  If Plaintiff will not unequivocally rule out a mild TBI as an injury, then it would be a new factual issue that would subject her to a second deposition.  

Defendants’ Motion is GRANTED.  Plaintiff is ordered to appear for a second deposition within 30 days of the date of this Order. 

Moving party to give notice.



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