GEORGE E SALEM VS SHANNON SHIH ET AL

Tentative Rulings

Case Number: ****6422 Hearing Date: June 6, 2022 Dept: 30

Department 30, Spring Street Courthouse

June 6, 2022

****6422

Motion for Protective Order filed by Plaintiff George E. Salem

DECISION

The motion is denied.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

On April 4, 2017, Plaintiff George E. Salem (“Plaintiff”) filed his Complaint alleging motor vehicle and general negligence against Defendant Shannon Shih and Yichen Sharon Lin Shih (collectively “Defendants”).

On May 20, 2022, Plaintiff filed the instant Motion for Protective Order Against Release of Transcript of Deposition of George Salem Taken on September 23, 2015 in LASC Case Salem v. Montes.

Summary

Moving Arguments

Plaintiff argues that Defendants’ 11th hour discovery request for the deposition transcript of Plaintiff in LASC Case No. BC565144 titled Salem v. Montes violates this Court’s April 14, 2022 Order. Plaintiff also argues that there is no justifiable reason that Defendants waited so long to make their request for the transcript since its existence was disclosed in form interrogatory responses on August 31, 2017.

Plaintiff argues that requesting deposition transcripts is discovery. Defendants cannot wait until the eve of trial, after discovery was closed on April 14, 2022, to make a discovery request for this document.

Opposing Arguments

Defendants argue that requesting a deposition transcript from a court reporter is not a method of discovery and has no cutoff. Defendants state that Plaintiff has failed to show good cause for a protective order. The deposition transcript has evidentiary purposes because Plaintiff alleged personal injuries from the subject accident in Salem v. Montes and gave the deposition just five months after the vehicle accident in the instant case. The deposition transcript of Plaintiff in Salem v. Montes is highly relevant.

Reply Arguments

Plaintiff again argues that requesting a deposition transcript is subject to the Civil Discovery Act and is therefore, no longer discoverable because it is now after the discovery deadline. Plaintiff also argues that the deposition transcript is not public record and that third party requests for the transcript are governed by CCP 2025.570(b) which requires a 30-day notice and allows parties to seek a protective order for the transcript.

Legal Standard

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., 2025.420, subd. (a).) The court, for good cause shown, may make any order “that justice requires” to protect any party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., 2025.420, subd. (b).) If “good cause” is shown, the court can exercise its discretionary power to limit discovery. (See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298-99.) The granting or denial of relief lies within the sound discretion of the judge. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 379-81 (overruled on other grounds pertaining to attorney work product privilege).) The concept of good cause requires a showing of specific facts demonstrating undue burden, unwarranted embarrassment, oppression, or unwarranted annoyance, and justifying the relief sought. (See Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.3d 807, 819.) Unlike other discovery orders, a protective order may be granted simply on the court’s determination that justice so requires. (Greyhound Corp., supra, 56 Cal.2d at pp. 379-81.) A deponent or party has a right to seek a protective order under section 2024.420 if a copy of a deposition is requested from the deposition officer. (Code Civ. Proc., 2025.570, subd. (b)(3).)

Discussion

The Court notes that pursuant to Code of Civil Procedure section 2025.570, which provides the authority for Defendants’ request, “a copy of the transcript of the deposition testimony made by, or at the direction of, any party . . . shall be made available by the deposition officer to any person requesting a copy, on payment of a reasonable charge set by the deposition officer.” (Code Civ. Proc., 2025.570, subd. (a) [emphasis added]; see also Board of Trustees of California State University v. Superior Court (2005) 132 Cal.App.4th 889, 901 [noting that deposition transcripts are “available to the public, absent an objection and protective order” and are thus “ordinarily not documents that the parties would reasonably envision would not be made available to persons or entities outside the litigation”].) Therefore, the Court is not persuaded that the discovery cut-off applies to Defendants’ request for the deposition transcript at issue here.

Moreover, the Court is not persuaded that there is good cause for a protective order. It appears the deposition in question was taken five months after the motor vehicle collision that gives rise to the instant action. The deposition transcript is relevant to Plaintiff’s physical condition around the time of the collision for the instant case. The release of Plaintiff’s sworn deposition testimony from Salem v. Montes will not prejudice Plaintiff in any way and is not an unwarranted annoyance, embarrassment, oppression, undue burden or expense under Code of Civil Procedure section 2025.420, subdivision b as to warrant a protective order.

Case Number: ****6422 Hearing Date: March 15, 2022 Dept: 30

Department 30, Spring Street

March 15, 2022

****6422

Defendants’ Motion to Exclude Plaintiff's Designated Experts Dean Keith Stolworthy and Ted Kobayashi from Testifying at Trial

DECISION

The motion is denied.

Plaintiff is ordered to de-designate Stolworthy as an expert witness within one day after the date of this order.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

On April 4, 2017, Plaintiff George E. Salem commenced this action against Defendants Shannon Shit and Yichen Sharon Lin Shih based on a car accident that occurred on April 25, 2015.

On February 16, 2022, Defendants filed the pending motion to exclude Plaintiff's designated experts Dean Keith Stolworthy and Ted Kobayashi from testifying at trial.

The parties’ exchange of expert witnesses was scheduled for January 24, 2022. Plaintiff served a designation of experts on that date. Plaintiff’s expert designation included Dean Keith Stolworthy, Ph.D., PE, CXLT, and Michael J. Braun, P.E., as experts. Stolworthy was labeled as a biomechanical engineer/human factors specialist, and Braun as a Professional Engineer and a Certified Accident Reconstructionist. Defense Counsel then inquired as to why Plaintiff’s expert designation included two biomechanical and human factors specialists, both Stolworthy and Mariusz Ziejewski. Plaintiff subsequently, on February 8, 2022, replaced Braun with Ted Kobayashi as the accident reconstruction expert. Plaintiff also stated that he would de-designate Stolworthy.

Trial is set for April 11, 2022.

Summary

Moving Arguments

Defendants request that Plaintiff exclude Stolworthy because, though Plaintiff admits to having included Stolworthy inadvertently, Plaintiff has not served a de-designation of Stolworthy.

Regarding Kobayashi, Defendants argue that Plaintiff was required to obtain leave, pursuant to Code of Civil Procedure Section 2034.620, of Court prior to designating Kobayashi and so designating Kobayashi without leave of court has severely prejudiced Defendants. Defendants’ explanation for how this has prejudiced Defendants is:

Plaintiff repeatedly asserted the discovery cutoff, to prevent Defendants from conducting discovery. Now, Plaintiff has blown a discovery deadline and expects to proceed without leave of court. On February 10, 2022, the Court denied Defendants leave to reopen discovery. It would be inconsistent to deny Defendants leave of court, and then allow Plaintiff to do an untimely expert designation, when he did not even seek leave of court. (Mot., p. 6.)

Counsel provides a supporting meet and confer declaration.

Opposition

Plaintiff contends that he inadvertently identified Braun instead of Kobayashi due to a miscommunication with co-counsel’s office and that Braun and Kobayashi are from the same firm. Plaintiff also states that Plaintiff had identified Kobayashi as the accident reconstruction expert in the previous designation on January 13, 2020.

Plaintiff contends that “the Court has discretion to Relieve Plaintiff of his Clerical Error in not naming Dr. Kobayashi Pursuant to CCP 2034.720 et seq.” (Opp., p. 6.) On this point, Plaintiff contends that “The trial judge has discretion to permit undisclosed experts to testify if the offering party failed to designate them due to “‘mistake, inadvertence, surprise, or excusable neglect.’” Plaintiff also contends that he remedied the situation promptly, 15 days after expert designation. Plaintiff also states that there has been no prejudice to Defendants as Defendants have yet to depose “anyone from Mr. Kobayashi's firm and will only need to depose him.” (Id., p. 7.)

Lastly, Plaintiff requests that “if the court is seeking to have the Plaintiff file a motion to augment his designation, that it accepts his opposition to Defendants' Motion to Exclude Experts, as his motion, because he has set forth the basis for his relief as he would in his motion to augment designation.” (Id., p. 8.)

Reply

Defendants state, “If the Court allows Ted Kobayashi to be designated, the order should be conditioned on Plaintiff making Mr. Kobayashi immediately available for a deposition.” (Reply, p. 2.)

Defendants argue that CCP Section 2034.720 does not offer Plaintiff relief here and that Plaintiff would need to seek leave to augment his expert designation under Section 2034.620 and 2034.610. Defendants also argue the standard to augment cannot be met because Defendants “relied on the absence of Ted Kobayashi in setting expert depositions, because there are only two weeks to complete 12 retained expert depositions. That would cause severe prejudice to Defendants, in forcing them to scramble during trial in another matter to set and prepare for another expert deposition.” (Id., p. 4.)

Legal Standard

Under Code of Civil Procedure Section 2034.300, “Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:

(a) List that witness as an expert under Section 2034.260.

(b) Submit an expert witness declaration.

(c) Produce reports and writings of expert witnesses under Section 2034.270.

(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).

Under Code of Civil Procedure section 2034.610, subdivision (a), on motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to either or both of the following: (1) augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained, or (2) amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give. Pursuant to California Code of Civil Procedure section 2034.610, subdivision (b), a motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time. Additionally, the motion shall be accompanied by a meet and confer declaration. (Code Civ. Proc., 2034.610, subd. (c).)

California Code of Civil Procedure section 2034.620 provides that the court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.

(c) The court has determined either of the following:

(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.

(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following: (A) sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony, and (B) promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.

Under section 2034.620, subdivision (d), leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.

Under CCP section 2034.710, the Court may, “[o]n motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange,…grant leave to submit that information on a later date.”

California Code of Civil Procedure section 2034.720 provides that the court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.

(c) The court has determined that the moving party did all of the following:

(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

(d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.

Discussion

Defendants’ Motion to Exclude Experts Dean Keith Stolworthy and Ted Kobayashi from Testifying at Trial

The parties agree that Dean Keith Stolworthy, Ph.D., PE, CXLT should be de-designated. Therefore, if Stolworthy has not yet been de-designated, Plaintiff must do so now.

Regarding Defendant’s request that the Court exclude Kobayashi’s expert testimony, Defendants cite to Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936 for the proposition that “The Court has discretion to exclude a party’s expert for unreasonable failure to exchange expert information properly.” Boston continues, “If the trial court concludes that a party intentionally manipulated the discovery process to ensure that expert reports and writings were not created until after the specified date, it may find the failure to produce the reports and writings was unreasonable and exclude the expert's opinions.” (Id. at p. 952.) According to a passage that Defendants cite from Du-All Safety, LLC v. Superior Court (2019), “The operative inquiry is whether the conduct being evaluated will compromise these evident purposes of the discovery statutes: to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.” (34 Cal.App.5th 485, 499.)

Here, the record does not indicate that Plaintiff intentionally manipulated the discovery process. All indications are that Plaintiff’s inclusion of Braun instead Kobayashi during the January 24, 2022 expert exchange was a result of an inadvertent mistake that Plaintiff corrected without gamesmanship. According to Plaintiff this occurred based on a miscommunication with co-counsel and because Kobayashi and Braun are part of the same firm. Plaintiff’s counsel then attempted to correct the mistake on February 8, 2022. Further underscoring that this was a mistake is that Plaintiff designated Kobayashi when designating experts in January 2020. Additionally, both Braun and Kobayashi are accident reconstruction experts from the same firm so there was no tangible difference between the two in terms of the impact on Defendants and no advantage to be gained in itself by Plaintiff first naming Braun and then replacing Braun with Kobayashi.

Prejudice to some degree could have theoretically resulted if Defendants were prevented from conducting an earlier deposition but here expert depositions are taking place between March 28, 2022, and April 4, 2022 and, apparently, the parties began scheduling depositions on February 14, 2022. (Salem Decl., para. 6.) Plaintiff’s counsel states he has provided a deposition date of March 30 for Kobayashi’s deposition. (Id.) Thus, though it appears Defendants have relied on the absence of Kobayashi to an extent by scheduling their depositions under the assumption Kobayashi would not be added, any resultant prejudice has been mitigated. Additionally, if Plaintiff had not replaced Braun with Kobayashi, Defendants would still be taking a deposition of an accident reconstruction expert during that time frame. Based on the record presented, Defendants have been on notice that Plaintiff would designate an accident reconstruction expert and replacing the timely disclosed accident reconstruction expert with a different expert reconstruction expert resulted in minimal to no prejudice.

For the aforementioned reasons there is also no indication that designating Kobayashi in place of Braun has compromised the purposes of the discovery statutes, such as assisting the parties and the trier of fact in ascertaining the truth, encouraging settlement by educating the parties as to the strengths of their claims and defenses, expediting and facilitating preparation and trial, preventing delay, and safeguarding against surprise. (See Du-All Safety, LLC v. Superior Court, 34 Cal.App.5th at p. 499.)

Leave to Augment Under CCP Sections 2034.610 and 2034.620

Further regarding the addition of Kobayashi, since Plaintiff provided a timely expert disclosure, rather than seeking to submit a tardy expert disclosure, Plaintiff augmented a timely expert disclosure. Thus, to the extent Plaintiff is seeking leave to name Kobayashi as a retained expert witness, CCP Sections 2034.610 and 2034.620, rather than Section 2034.710, apply.

Plaintiff requests that “if the court is seeking to have the Plaintiff file a motion to augment his designation, that it accepts his opposition to Defendants' Motion to Exclude Experts, as his motion, because he has set forth the basis for his relief as he would in his motion to augment designation.” (Opp., p. 8.)

Defendants oppose the Court considering this because Plaintiff did not make this request through a noticed motion. (Reply, p. 2.) However, the Court finds that Defendants were sufficiently noticed and have responded to the substance of Plaintiff’s request for leave to augment. Additionally, the Court finds that, at this late stage, both parties would be prejudiced by forcing Plaintiff to complete the procedural step of filing a noticed motion when actual notice and an opportunity to be heard has already been achieved. Defendants have already expressed concern over the difficulty of completing expert depositions prior to the impending trial that is set for April 11, 2021. (See id., p. 4.) Adding further uncertainty as to whether a deposition of Kobayashi needs to be taken is likely to serve to further prejudice Defendant. Also, the parties have already met the requirement of meeting and conferring on the relevant issues. Accordingly, the Court will exercise its discretion and consider Plaintiff’s request to be allowed to augment his expert witness list by adding Kobayashi.

The Court finds Plaintiff’s request meets the requirements of CCP Section 2034.620. Though it appears Defendants have relied on the absence of Kobayashi to an extent by scheduling their depositions under the assumption Kobayashi would not be added, Defendants have been on notice that Kobayashi was likely to be an expert witness since 2020, and Plaintiff previously named a different accident reconstruction expert. Additionally, expert depositions are taking place between March 28, 2022, and April 4, 2022. Thus, there is no tangible difference between Defendants taking Kobayashi’s deposition during that time period instead of Plaintiff’s previously identified expert, Braun, and Defendants have not been prejudiced by not yet taking Kobayashi’s deposition as the time to take expert depositions has not yet been reached. Defendants, therefore, have not relied on the list of expert witnesses without Kobayashi to such an extent to warrant refusing to allow augmentation. (CCP 2034.620(a).) For these reasons, Defendants will also not be prejudiced by Plaintiff adding Kobayashi. ( 2034.620(b).)

All indications are that Plaintiff’s inclusion of Braun instead Kobayashi was a result of mistake. According to Plaintiff this occurred based on a miscommunication with co-counsel and because Kobayashi and Braun are part of the same firm. The parties moved promptly to address this error. This led to Defendants filing this motion, and Plaintiff requesting leave to augment through his opposition. It appears that Plaintiff has “served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.” (Salem Decl., para. 8(b).) Defendants have not argued the content of the amended expert designation was deficient. (See Boden, para. 7.) Thus, CCP Section 2034.620(c) appears to be satisfied.

Lastly, leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition. (CCP 2034.620(d).) Expert depositions are taking place between March 28, 2022, and April 4, 2022, and Plaintiff has apparently provided a date of March 30, 2022 for Kobayashi’s deposition. (Salem Decl., para. 6.) Therefore, the requirement of CCP Section 2034.620(d) has been met.

Accordingly, the Court finds it can exercise its discretion in allowing Plaintiff to augment his expert witness designation by adding Ted Kobayashi, PE, in place of Michael J. Braun, PE.

Case Number: ****6422 Hearing Date: February 10, 2022 Dept: 30

Department 30, Spring Street Courthouse

February 10, 2022

Motion to Quash 19 Deposition Subpoenas

DECISION

The motion to quash is granted.

No sanctions are imposed.

Moving party is ordered to provide notice.

Background

On April 4, 2017, Plaintiff George E. Salem (“Plaintiff”) filed a Complaint against Defendants Shannon Shih, Yichen Sharon Lin Shih, and Does 1-10, inclusive (collectively “Defendants”) alleging two causes of action motor vehicle negligence and general negligence for a motor vehicle collision that occurred on April 25, 2015.

On January 12, 2022, Plaintiff filed a motion to quash subpoenas and request for sanctions against Defendant.

On January 28, 2022, Defendant filed an opposition to Plaintiff’s motion to quash subpoena.

On February 2, 2022, Plaintiff filed a reply to Defendant’s opposition.

Trial is set for March 15, 2022.

Party’s Request

Plaintiff moves the Court for an order quashing Defendant’s (19) subpoenas to the following: (1) Dr. Jennifer Bennitt, (2) Dr, Peter G. Alexakis, (3) Dr. Joel D. Sommers, (4) Dr. Melita Petrossian, (5) Dr. Douglas S. Harrington, (6) Dr. Heather Marie Gillespie, (7) Dr. Khademi, (8) Kristin Bonny, PT, (9) Anna X. Chen, (10) Dr. Larry Harlem, (11) Dr. Albert Sheffer, (12) EMS Anderson, (13) Gretel Salem, (14) EMS Maccini, (15) R. Stephen, (16) I Ufemisez, (17) Dr. Ravi Dave, (18) Dr. Frank Petrigliano, and (19) Blue Cross of California – Corporate.

Plaintiff moves on the grounds that the deposition subpoenas should be quashed in entirety not only to protect Plaintiff from unreasonable and oppressive violation of his right of privacy in his confidential personal and medical files, but also because the issuance of these subpoenas violates the Court’s minute order of December 4, 2020.

Plaintiff also seeks monetary sanctions in the amount of $5,310.00 against Defendants and its attorneys of record, Ford, Walker, Haggerty & Behar, LLP.

Legal Standard

California Code of Civil Procedure section 1987.1, subdivision (a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” (Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.) “[P]laintiffs are ‘not obligated to sacrifice all privacy to seek redress for a specific [physical,] mental or emotional injury’; while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing [a] lawsuit, . . . they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864 (citation and footnote omitted).) However, “. . . privacy interests may have to give way to [an] opponent’s right to a fair trial. Thus, courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.” (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842.)

In making an order pursuant to California Code of Civil Procedure section 1987.1, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc. 1987.2, subd. (a).)

Discussion

On December 4, 2020, the Court issued an order reopening discovery as to “supplemental discovery on Plaintiff’s ongoing treatment.” The order further stated that the deadline for such discovery and for expert discovery would be based on the new trial date of March 15, 2022.

Of the 19 subpoenas that Plaintiff seeks to quash 17 of the subpoenas were issued to Plaintiff’s medical providers. Defendants argue that since they noticed Plaintiff’s own medical providers as Defendant’s non-retained experts the discovery deadline has not passed.

The Court disagrees. It appears Defendant has tried an end run around the Court’s ruling by designating these individuals as non-retained experts. The existence of these individuals has been long known to Defendant and they could have been timely deposed as percipient witnesses long ago. Moreover, they did not provide ongoing treatment to Plaintiff for any of the injuries alleged to have resulted from the accident.

With respect the deposition of Plaintiff’s spouse, Gretel Salem, Defendants concede that the timeliness of that deposition was contingent on the court granting Defendants’ motion to reopen discovery. (Opposition at Pg. 4.) The court has denied that motion.

Finally, there is the deposition of Blue Cross. Plaintiff does not contend that the deposition was noticed late or otherwise prohibited by the Court’s order. Rather, Plaintiff’s contention relates to the scope of the subpoena and the invasion of his rights to privacy. Plaintiff also contends that Defendants have all relevant records already.

The framework for evaluating invasions of privacy in discovery has been clarified in Williams v. Superior Court (2017) 3 Cal.5th 531. There, the California Supreme Court held that, generally, “[t]he party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams, supra, 3 Cal.5th at 553, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) The court rejected the previous cases holding that the party seeking protected information must always show a compelling need or interest. (Id. at p. 557.) Instead, the court held, “[o]nly obvious invasions of interest fundamental to personal autonomy must be supported by a compelling interest.” (Ibid.)

A plaintiff has a “robust” privacy interest in his or her medical records. (Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1034.) Nevertheless, “[b]y placing [his or] her physical condition in issue in the…litigation, [a] plaintiff's expectation of privacy regarding that condition [is] substantially lowered.” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.)

Our Supreme Court has held that a litigant “is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.” (In re Lifschutz (1970) 2 Cal.3d 415, 435.) A litigant “may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit,” but is “entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment [the litigant] may have undergone in the past.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864.)

In 2019, Defendant subpoenaed and received from Blue Cross ten-years’ worth of records. On December 21, 2021, Defendant issued a second deposition subpoena for production of business records and set the date of production for January 18, 2022. The subpoena was broad in scope and requested: “Any and all documents and records” relating to Plaintiff from January 10, 2019 to the present.

Based on the initial subpoena, this does appear to be a follow up subpoena to get updated records on continuing treatment. It is appropriately limited in scope with respect to time. However, it is not limited in terms of the types of records requested. The request clearly encompasses records which do not relate to continuing treatments or even to the body parts at issue. Because Defendants have so broadly drawn the subpoena when a much more limited subpoena would have sufficed, Plaintiff’s privacy interests outweigh Defendant’s interests here.

For all these reasons, the motion to quash is granted.

The Court declines to impose sanctions.

===========================================================

February 9, 2022

Defendants’ Motion to Reopen Discovery CONTINUED from February 9, 2022 to today, February 10, 2022

DECISION

The motion to Reopen Discovery is denied.

The request for sanctions is denied.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

On April 4, 2017, Plaintiff George E. Salem commenced this action against Defendants Shannon Shit and Yichen Sharon Lin Shih based on a car accident that occurred on April 25, 2015.

On January 18, 2022, Defendants filed the pending motion to re-open discovery.

Summary

Moving Arguments

Defendants request to reopen discovery in order to (1) allow inspection of the vehicle Plaintiff was driving during the incident, (2) allow Defendants to serve 11 special interrogatories regarding whether Plaintiff was wearing a seatbelt at the time of the subject accident, what body parts were impacted, and Plaintiff’s personal injury complaints, and (3) allow Defendants to depose nonparty witness Gretel Salem, Plaintiff’s wife.

Defendants claim that they diligently conducted discovery but were hindered due to being unable to serve Plaintiff’s wife with a deposition (despite trying six times), Plaintiff objecting to Plaintiff’s notice to inspect Plaintiff’s vehicle, and previously only being able to obtain trial continuances, not discovery continuances, and limited discovery relief from the Court.

Counsel provides a supporting declaration.

Opposition

Plaintiff contends Defendants have sought excessive discovery and have excessively sought to reopen discovery. Plaintiff also states that each time Defendants have demanded inspection of Plaintiff’s vehicle was after close of discovery. Additionally, Plaintiff states several reports show that Plaintiff was wearing his seat belt during the incident and that this is consistent with Plaintiff’s deposition testimony.

Plaintiff also requests sanctions against Defendants and their counsel in the amount of $2,100.

Reply

Defendants state that the interrogatories and inspection of Plaintiff’s vehicle are highly probative of Defendants’ biomechanic analysis and accident reconstruction. Defendants also contend that “Plaintiff’s wife…would know about Plaintiff’s symptoms.” Defendants also state that the failure to complete discovery was caused by the two-year COVID-19 delay. Defendants also argue sanctions should be denied.

Legal Standard

CCP 2024.050 states:

(a) On motion of any party, the court may grant leave to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Discussion

Defendants request to reopen discovery in order to (1) allow inspection of the vehicle Plaintiff was driving during the incident, (2) allow Defendants to serve 11 special interrogatories regarding whether Plaintiff was wearing a seatbelt at the time of the subject accident, what body parts were impacted, and Plaintiff’s personal injury complaints, and (3) allow Defendants to depose nonparty witness Gretel Salem, Plaintiff’s wife.

Defendants have failed to establish diligence in conducting discovery, particularly in the nearly three years between being served the summons and complaint and the onset of the hindrances caused by the COVID-19 pandemic. In light of other discovery that has been conducted, Defendants have also failed to establish the necessity of the discovery sought, particularly the interrogatories and the deposition of Plaintiff’s wife.

Accordingly, the motion to reopen discovery is denied.

Case Number: ****6422 Hearing Date: February 9, 2022 Dept: 30

Department 30, Spring Street Courthouse

February 9, 2022

****6422

Defendants’ Motion to Reopen Discovery

DECISION

The motion is denied.

The request for sanctions is denied.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

On April 4, 2017, Plaintiff George E. Salem commenced this action against Defendants Shannon Shit and Yichen Sharon Lin Shih based on a car accident that occurred on April 25, 2015.

On January 18, 2022, Defendants filed the pending motion to re-open discovery.

Summary

Moving Arguments

Defendants request to reopen discovery in order to (1) allow inspection of the vehicle Plaintiff was driving during the incident, (2) allow Defendants to serve 11 special interrogatories regarding whether Plaintiff was wearing a seatbelt at the time of the subject accident, what body parts were impacted, and Plaintiff’s personal injury complaints, and (3) allow Defendants to depose nonparty witness Gretel Salem, Plaintiff’s wife.

Defendants claim that they diligently conducted discovery but were hindered due to being unable to serve Plaintiff’s wife with a deposition (despite trying six times), Plaintiff objecting to Plaintiff’s notice to inspect Plaintiff’s vehicle, and previously only being able to obtain trial continuances, not discovery continuances, and limited discovery relief from the Court.

Counsel provides a supporting declaration.

Opposition

Plaintiff contends Defendants have sought excessive discovery and have excessively sought to reopen discovery. Plaintiff also states that each time Defendants have demanded inspection of Plaintiff’s vehicle was after close of discovery. Additionally, Plaintiff states several reports show that Plaintiff was wearing his seat belt during the incident and that this is consistent with Plaintiff’s deposition testimony.

Plaintiff also requests sanctions against Defendants and their counsel in the amount of $2,100.

Reply

Defendants state that the interrogatories and inspection of Plaintiff’s vehicle are highly probative of Defendants’ biomechanic analysis and accident reconstruction. Defendants also contend that “Plaintiff’s wife…would know about Plaintiff’s symptoms.” Defendants also state that the failure to complete discovery was caused by the two-year COVID-19 delay. Defendants also argue sanctions should be denied.

Legal Standard

CCP 2024.050 states:

(a) On motion of any party, the court may grant leave to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Discussion

Defendants request to reopen discovery in order to (1) allow inspection of the vehicle Plaintiff was driving during the incident, (2) allow Defendants to serve 11 special interrogatories regarding whether Plaintiff was wearing a seatbelt at the time of the subject accident, what body parts were impacted, and Plaintiff’s personal injury complaints, and (3) allow Defendants to depose nonparty witness Gretel Salem, Plaintiff’s wife.

Defendants have failed to establish diligence in conducting discovery, particularly in the nearly three years between being served the summons and complaint and the onset of the hindrances caused by the COVID-19 pandemic. In light of other discovery that has been conducted, Defendants have also failed to establish the necessity of the discovery sought, particularly the interrogatories and the deposition of Plaintiff’s wife.

Accordingly, the motion to reopen discovery is denied.

b'

Case Number: ****6422 Hearing Date: December 21, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

On February 7, 2017, Plaintiff, Adam Harari filed this action against Defendant, Michael Ray Nguyen-Stevenson, aka Michael Ray Stevenson, aka Tyga (“Stevenson”), and Does 1-20 for negligence and intentional tort. Plaintiff alleges that while attempting to serve Defendant with legal documents at a night club, Plaintiff was grabbed, yanked, pulled and choked by other persons. On February 7, 2019, Plaintiff filed an Amendment to Complaint naming SKWS Enterprises, Inc. (“SKWS”) as Doe 2.

Trial in this matter is currently set for January 7, 2022, with discovery being cut-off on December 8, 2021. On December 13, 2021, SKWS filed an Ex Parte Application for Relief for an Independent Medical Examination (“IME”).

On or about November 4, 2021, SKWS, together with then co-defendants Stevenson and ATF, served a Notice of IME on Plaintiff setting Plaintiff’s IME for December 7, 2021, at 4:30 p.m., with Dr. Kvitne at 2275 Huntington Drive #124, San Marino, California 91108. SKWS provides that Stevenson’s counsel took the lead in scheduling the IME and sending out the notice. However, SKWS provides that Stevenson’s counsel, unbeknownst to SKWS, noticed the exam at Dr. Kvitne’s mailing address, instead of Dr. Kvitne’s physical address of 2401 Huntington Drive, San Marino, CA. On December 7, 2021, Plaintiff appeared for the IME at the address on the notice, which was the mailing address, and the exam did not go forward. SKWS, therefore, requested it be allowed to conduct an IME of Plaintiff.

The court heard the application on December 14, 2021, and issued the following order:

The Court sets the Ex Parte Application for Relief for an Independent Medical Examination as a noticed motion.

Moving papers are to be filed and served no later than 12/16/2021.

Opposition is to be filed and served no later than 12/20/2021.

Hearing on Motion - Other for Relief for an Independent Medical Examination is scheduled for 12/21/2021 at 08:30 AM in Department 31 at Spring Street Courthouse.

(Min. Order, Dec. 14, 2021.)

SKWS argues the IME did not proceed on December 7, 2021, due to a clerical mistake, and contends discovery should be reopened to allow the IME to proceed.

In opposition, Plaintiff argues SKWS failed to cite any authority showing it is entitled to relief under CCP ; 473(b) and asserts the case will be five years old in February 2022. Plaintiff contends he appeared for the IME on December 7, 2021, but Dr. Kvitne did not appear. Plaintiff avers SKWS fails to make any showing that the court should exercise its discretion to reopen discovery to permit an IME closer to trial. Plaintiff further argues SKW fails to carry its burden to show discovery should be reopened, and thus, granting the motion would be an abuse of discretion.

2. Request to Reopen Discovery

CCP ; 2024.050 states:

(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

(1) The necessity and the reasons for the discovery.

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

Here, unless discovery is ordered reopen first, the motion to allow SKWS to conduct Plaintiff’s IME must be denied. (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568.)

In Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588, the court held that, “[b]y simply hearing the motion to compel without first deciding whether discovery should be reopened for that purpose under all of the relevant circumstances, the trial court ‘transgresse[d] the confines of the applicable principles of law’ . . . and thereby abused its discretion.” (citing, in part, City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)

First, as to the necessity and reasons for the discovery, SKWS asserts that additional discovery is required to obtain information regarding Plaintiff’s condition because Plaintiff is asserting claims for physical injuries on which his case hinges. While Plaintiff argues the IME is not necessary to this action, Plaintiff does not deny he is claiming damages for physical injuries allegedly caused by SKWS. CCP ; 2032.220 states in relevant part, “(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff…” To the extent Plaintiff argues this would be Plaintiff’s second IME, Plaintiff cites no authority holding that merely appearing for an IME, without being examined, is sufficient to constitute a physical examination under the Code.

Second, SKWS avers it was diligent in timely setting the IME but due to a clerical mistake the incorrect address for the IME was provided to Plaintiff. Plaintiff does not otherwise dispute that no examination of Plaintiff has been completed.

Third, trial is set for January 7, 2022, and Defendants assert that reopening discovery for the IME will not delay the trial date because the IME can go forward within a week. Moreover, SKWS contends it will be prejudiced if it is forced to go to trial without a medical expert. Finally, although the case will be five years old in February 2022, SKWS contends a trial continuance will not be necessary to have the IME go forward. Plaintiff does not argue that he will not have sufficient time to prepare for trial if required to appear for an IME prior to trial. Moreover, there is no evidence SKWS delayed in seeking to reopen discovery after learning of the error with Plaintiff’s noticed IME.

Based on the foregoing, SKWS has demonstrated Plaintiff’s IME is necessary to fully prepare for trial and ascertain the extent of Plaintiff’s medical damages. Plaintiff does not identify any apparent prejudice to Plaintiff is discovery is reopened for the limited purpose of allowing Plaintiff’s IME to go forward. Nonetheless, if requested by Plaintiff, the court will be inclined to grant a very short trial continuance to alleviate any prejudice to Plaintiff.

Defendant’s request to reopen discovery is granted for the limited purpose of allowing Plaintiff’s IME to go forward prior to trial. Given the proximity to the trial date, the court shortens the required notice for a demand for physical examination of Plaintiff to three (3) days- that is, the exam must be scheduled for a date at least three days after service of the demand, unless the parties agree to an alternative date.

Defendants are ordered to give notice.

C61906

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Dated this 21^st day of December, 2021

Case Number: ****6422    Hearing Date: December 04, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

   Plaintiff, George E. Salem (“Plaintiff”) filed this action against Defendants, Shannon Shih and Yichen Sharon Lin Shih (“Defendants”) for damages arising out of an automobile accident.

   Defendants, at this time, move to reopen discovery.

   On 2/14/20, the court granted Defendants’ ex parte application to continue trial and continued the trial in this action from 3/3/20 to 4/28/20. (Min. Order 2/14/20.) The court expressly stated that discovery was not extended as a result of the continuance. (Ibid.) Based on current conditions, including, but not limited to, the spread of COVID-19, the 4/28/20 trial date was vacated and a Trial Setting Conference (“TSC”) scheduled for 5/29/20. (Min. Order 3/24/20.) The TSC was then continued to 9/15/20. (Min Order 4/21/20.) At the TSC, the court scheduled the Final Status Conference in this matter for 3/1/22, and set trial for 3/15/20. (Min. Order 9/15/20.) Only expert discovery was ordered reset as per the new trial date. (Ibid.)

2. Motion to Reopen Discovery

   CCP ; 2024.050 states:

   (a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

   (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

   (1) The necessity and the reasons for the discovery.

   (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

   (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

   (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

   Here, Defendants assert that Plaintiff previously indicated in discovery that Plaintiff’s treatment related to this action was ongoing, and that Plaintiff may require future treatment. Because Plaintiff will likely continue treatment, Defendants contend they must be able to complete discovery regarding any additional treatment Plaintiff receives. In particular, Defendants assert their independent neurophysiological examination, which was set for 3/23/20, could not go forward prior to the discovery cut-off date because of COVID-19 restrictions in place.

   Any opposition to the motion was due on or before 11/18/20. To date, the court has not received an opposition.

   First, as to the necessity and reasons for the discovery, Defendants assert that additional discovery is required to obtain information regarding Plaintiff’s ongoing and future treatment that Defendants otherwise would not be able to obtain prior to the 3/15/22 trial date. Second, Defendants aver they have been diligent in completing discovery and preparing for trial, but because discovery has been cut-off and Plaintiff’s treatment is ongoing, additional discovery is needed.

   Third, trial is set for 3/15/22, and Defendants assert reopening discovery will not delay the trial date because the parties have plenty if time to complete discovery. Moreover, Defendants contend Plaintiff will not be prejudiced by disclosing any ongoing medical acre or treat she has incurred and will continue to incur from now until trial, but Defendants will be prejudiced if not allowed to conduct full discovery of Plaintiff’s medical damages. Finally, the case was previously set for trial on 4/28/20 before that date was vacated and then set for 3/15/22. There is no evidence Defendants delayed in seeking to reopen discovery since the case was set for trial.

   Based on the foregoing, Defendants have demonstrated additional discovery is necessary to fully prepare for trial and ascertain the extent of Plaintiff’s medical damages. Furthermore, given trial is currently set for 3/15/22, there is no apparent prejudice to Plaintiff in allowing discovery to be reopened.

   Defendants’ motion to reopen discovery is granted.

   Defendants are ordered to give notice.

   C61906

   Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

   Dated this 4^th day of December, 2020

Case Number: ****6422    Hearing Date: January 31, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff, George E. Salem filed this action against Defendants, Shannon Shih and Yichen Sharon Lin Shih for damages arising out of an automobile accident.

2. Motion to Compel IME

On calendar today is Defendant’s motion to compel Plaintiffs’ attendance at an IME. Defendant originally filed the motion on 8/28/19 and set it for hearing on 9/25/19. The hearing on the motion has been continued multiple times, and the parties also participated in an informal discovery conference in connection with the motion. The parties have not, however, been able to resolve certain issues relating to the motion.

The following issues remain between the parties in connection with this motion:

· Are Defendants entitled to a protective order:

o That only Plaintiff and the Examiner be present for the psychometric testing;

o That Plaintiff by prohibited from recording the psychometric portion of the testing;

o That the Examiner be required to audio record the entirety of the testing and provide the recording to the Court and Plaintiff’s neuropsychological experts only;

o That the disclosure of the audio recording be limited to the Examiner, the Court, and Plaintiff’s neuropsychological expert.

· Have Defendants adequately identified the tests to be performed?

o Can Defendants’ expert administer tests that were already administered by Plaintiff’s expert?

o If Plaintiff is willing to provide the raw data from prior tests to Defendants’ expert, does this preclude re-issuing those same tests?

· Should there be a time limit on the examination?

o Should Defendants’ expert be permitted to conduct additional oral history of Plaintiff?

1. Initial Note

While Plaintiff does oppose the motion in its entirety, Plaintiff does not make a meaningful argument that his mental health is not at issue in this case, such that an examination would be precluded altogether. The Court finds an examination is necessary and appropriate, and will limit its analysis to the more difficult issues posed by way of the parties’ motion and opposition papers below.

1. Persons Present at Examination

Defendants seek an order permitting only Plaintiff and the Examiner to be present for the hearing. Plaintiff does not seek a contrary order in the original or supplemental opposition. The Court is therefore inclined to grant Defendants’ requested relief in this regard.

1. Recording of Examination

The next issue is whether Plaintiff and/or Defendants’ expert can audiorecord the examination. Plaintiff argues Plaintiff has the absolute right to record the examination. Defendants contend only their expert should be permitted to audiorecord the portion of the examination concerning raw testing data.

;2032.530(a) expressly permits the examinee and/or the examiner to audiorecord the examination in its entirety. The Court cannot force the examiner to audiorecord the examination and provide a copy to Plaintiff, but also cannot prohibit Plaintiff from recording the examination. The request that only the examiner be permitted to record the testing portion of the examination is denied, as it is directly contrary to the statute governing the issue.

1. Protective Order re: Raw Data

The crux of this motion is whether the audio recording should be subject to a protective order. Per ;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.” (; 2032.610(a).) It is unclear whether this provision contemplates production of the raw data from psychological testing, or the examiner’s conclusions from that data. In Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, the court determined that a trial court has discretion to require an examiner to produce the raw data from psychological testing, but not the obligation to do so. The Carpenter Court ruled that a trial court should consider the ethical issues relating to the production of the raw data in determining whether to order its production. Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 273.

Defendants provide extensive analysis and evidence concerning their chosen expert’s inability to permit the raw data from the testing to be disseminated to Plaintiff’s attorney and/or the general public. Plaintiff provides no contrary evidence in opposition to the motion. The Court therefore concludes that ;2032.610 does not require Defendants’ expert to produce the raw data from the psychological testing, but rather his reports and conclusions from that data. Similarly, to the extent Plaintiff records the testing portion of the examination, he can only do so pursuant to a proper protective order.

Accordingly, the Court orders Defendants’ expert to produce the raw data directly to any licensed psychologist Plaintiff retains as an expert in this action, but not to Plaintiff or Plaintiff’s counsel. The Court similarly precludes Plaintiff from providing a copy of the audiorecording of the testing portion of the examination to his attorney or any non-party to the litigation. The audiorecording of this examination shall be disclosed only to the Court and/or Plaintiff’s retained experts in the field. The Court understands Plaintiff’s attorney’s arguments concerning his ability to prepare the case for trial without reviewing the data, but finds Plaintiff’s attorney must rely on his own expert’s analysis of the data and/or Defendants’ expert’s report concerning the data in preparing the case for trial; the burden of requiring production of the raw testing data outweighs Plaintiff’s attorney’s need to review the data.

1. Identification of Tests to be Performed

Defendants, in their original reply papers, listed fifteen potential tests to be performed. Plaintiff seeks an order requiring Defendants to specify which tests will be performed, and also seeks an order precluding Defendants’ expert from re-conducting any test Plaintiff’s expert has previously conducted. Plaintiff fails, however, to identify any of the fifteen tests listed by Defendants that has been previously performed. If any of the tests have been previously performed, the Court asks Counsel to meet and confer concerning whether conducting the test again is appropriate. Otherwise, the Court finds Defendants adequately identified the tests to be performed, and Defendants’ expert is limited to the tests enumerated in the reply papers when conducting the examination.

1. Oral History

The parties appear to agree that any extensive oral history concerning the accident itself will not be conducted by Defendants’ expert in connection with the examination. Defendants’ expert is not permitted to ask redundant questions that have been covered by way of the deposition, but is permitted to question Plaintiff about his relevant mental health history. The Court is not inclined to place a time limitation on the examination at this time, and trusts Defendants’ expert will be professional and limit the examination to the duration necessary to prepare the case for trial.

1. Sanctions

The Court denies all requests for sanctions in connection with the motion and opposition. The parties’ papers present difficult and novel issues that are largely without directly on point appellate authority. The Court finds the parties took their positions in good faith, and even participated in an informal discovery conference in connection with the issues, such that sanctions are not appropriate.

1. Conclusion

The motion to compel an IME is granted.

A protective order is issued concerning the audiorecording of the testing portion of the examination, as well as the raw data ultimately generated from the examination; the recording and data are to be provided to the examiner, the Court and Plaintiff’s relevant expert(s) only.

The expert is not permitted to interview Plaintiff concerning the event itself and is not permitted to conduct questioning that it duplicative of Plaintiff’s deposition, but is permitted to inquire about Plaintiff’s mental health history.

The Court declines to place a time limitation on the examination, but asks the examiner to be professional and only use the time necessary to prepare the case for trial.

The examiner is limited to the fifteen tests identified in Defendants’ papers. Counsel must meet and confer if any of the fifteen tests have been previously administered and agree concerning whether or not those tests can be re-administered at this time.

No sanctions are imposed.

Defendants are ordered to give notice.

C61906

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.