Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 06/08/2019 at 05:38:59 (UTC).

IVAN CARMONA VS RYAN JAMES TOSO ET AL

Case Summary

On 08/17/2017 IVAN CARMONA filed a Personal Injury - Motor Vehicle lawsuit against RYAN JAMES TOSO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2800

  • Filing Date:

    08/17/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Plaintiff and Petitioner

CARMONA IVAN

Defendants and Respondents

TOSO RYAN JAMES

LYFT INC

DOES 1 TO 100

ARCHER'S VINELANE SERVICE (DOE 41)

ARCHER'S VINELANE SERVICE (DOE 51)

LYFT INC.

ARCHER'S VINELANE SERVICE[DOE 51]

ARCHER'S VINELANE SERVICE DOE 41

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MCNULTY PETER J. ESQ.

MCNULTY PETER JOHN

Defendant and Respondent Attorneys

METLITZKY WARREN DEPUTY CITY ATTORNEY

PETERSON JOHN ALLEN

METLITZKY WARREN

RICHMOND ELLEN

 

Court Documents

NOTICE OF ASSOCIATION OF COUNSEL

3/9/2018: NOTICE OF ASSOCIATION OF COUNSEL

Unknown

3/14/2018: Unknown

Proof of Service

3/14/2018: Proof of Service

DEFENDANT LY1T INC.S NOTICE OF POSTING JURY FEES

3/14/2018: DEFENDANT LY1T INC.S NOTICE OF POSTING JURY FEES

DEFENDANT LYF INC.S JURY DEMAND

3/14/2018: DEFENDANT LYF INC.S JURY DEMAND

NOTICE OF DEFENDANT FILING CHAPTER 7 BANKRUPTCY

8/13/2018: NOTICE OF DEFENDANT FILING CHAPTER 7 BANKRUPTCY

Opposition

11/28/2018: Opposition

Other -

11/28/2018: Other -

Minute Order

11/28/2018: Minute Order

Case Management Statement

5/3/2019: Case Management Statement

Stipulation and Order

5/6/2019: Stipulation and Order

Proof of Service by Mail

5/20/2019: Proof of Service by Mail

Response

5/20/2019: Response

Objection

5/24/2019: Objection

ANSWER TO COMPLAINT

10/19/2017: ANSWER TO COMPLAINT

DEMAND FOR JURY TRIAL

10/19/2017: DEMAND FOR JURY TRIAL

AMENDMENT TO COMPLAINT

11/3/2017: AMENDMENT TO COMPLAINT

PROOF OF SERVICE OF SUMMONS

9/20/2017: PROOF OF SERVICE OF SUMMONS

16 More Documents Available

 

Docket Entries

  • 05/24/2019
  • Proof of Service by Mail; Filed by Lyft, Inc. (Defendant)

    Read MoreRead Less
  • 05/24/2019
  • Reply (Reply of Lyft, Inc. In Support of Motion to Transfer to Independent Calendar Court); Filed by Lyft, Inc. (Defendant)

    Read MoreRead Less
  • 05/24/2019
  • Objection (PLAINTIFF?S OBJECTION TO DEFENDANT?S REQUEST FOR SUBPOENAS TO ISSUE IN BOWARD COUNTY, FLORIDA FOR PRODUCTION OF DOCUMENTS AND TANGIBLE THINGS); Filed by Ivan Carmona (Plaintiff)

    Read MoreRead Less
  • 05/20/2019
  • Proof of Service by Mail; Filed by Lyft, Inc. (Defendant)

    Read MoreRead Less
  • 05/20/2019
  • Response (Plaintiff's Response to Motion to Transfer Complicated Personal Injury Case to Independent Calendar Court); Filed by Ivan Carmona (Plaintiff)

    Read MoreRead Less
  • 05/17/2019
  • Notice (Notice of Intent to Serve Subpoenas); Filed by Lyft, Inc. (Defendant)

    Read MoreRead Less
  • 05/17/2019
  • Proof of Service by Mail; Filed by Lyft, Inc. (Defendant)

    Read MoreRead Less
  • 05/06/2019
  • at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Status Conference Re: Bankruptcy

    Read MoreRead Less
  • 05/06/2019
  • Stipulation and Order (Proposed Order); Filed by Ivan Carmona (Plaintiff)

    Read MoreRead Less
  • 05/03/2019
  • Case Management Statement; Filed by Lyft, Inc. (Defendant)

    Read MoreRead Less
26 More Docket Entries
  • 11/03/2017
  • AMENDMENT TO COMPLAINT

    Read MoreRead Less
  • 10/19/2017
  • Answer; Filed by Defendant/Respondent

    Read MoreRead Less
  • 10/19/2017
  • DEMAND FOR JURY TRIAL

    Read MoreRead Less
  • 10/19/2017
  • ANSWER TO COMPLAINT

    Read MoreRead Less
  • 10/19/2017
  • Demand for Jury Trial; Filed by Defendant/Respondent

    Read MoreRead Less
  • 09/20/2017
  • Proof-Service/Summons; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 09/20/2017
  • PROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 08/17/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

    Read MoreRead Less
  • 08/17/2017
  • SUMMONS

    Read MoreRead Less
  • 08/17/2017
  • Complaint; Filed by Ivan Carmona (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: BC672800    Hearing Date: October 14, 2020    Dept: A

Motion to Compel Further Special Interrogatory;

Motion to Compel Independent Mental Examination;

Motion to Compel Employment Records;

Motion to Compel Response to Deposition;

Motion for Sanctions

Calendar:

Add-On 4

Case No.:

BC672800

Hearing Date:

October 14, 2020

Action Filed:

August 17, 2017

Trial Date:

Not Set

MP:

Defendant Lyft, Inc.

RP:

Plaintiff Ivan Carmona

ALLEGATIONS:

The instant action arises from a motor vehicle collision on or about July 14, 2017, where Plaintiff Ivan Carmona (“Plaintiff”) collided with a driver for Defendant Lyft, Inc. (“Defendant”) while Plaintiff was riding a motorcycle.

Plaintiff filed the Complaint on August 17, 2017, alleging a single cause of action for Motor Vehicle Negligence.

PRESENTATION:

Defendant filed a motion to compel further special interrogatories on June 16, 2020, Plaintiff filed an opposition on July 20, 2020, and Defendant filed a reply on July 24, 2020.

Defendant filed a motion to compel an independent mental examination on July 16, 2020, Plaintiff filed an opposition on July 20, 2020, and Defendant filed a reply on July 24, 2020.

Defendant filed a motion to compel employment records on June 16, 2020, Plaintiff filed an opposition on July 20, 2020, and Defendant filed a reply on July 24, 2020.

Defendant filed a motion to compel deposition responses on July 8, 2020, Plaintiff filed an opposition on July 20, 2020, and Defendant filed a reply on July 24, 2020.

Defendant filed a motion for sanctions on June 19, 2020, Plaintiff filed an opposition on July 20, 2020, and Defendant filed a reply on July 24, 2020.

On July 31, 2020, the Court continued the aforementioned matters to October 02, 2020 and ordered both parties to submit additional briefing as to the issue of whether the Court could consider Defendant's discovery motions given a finding that they did not satisfy the meet and confer requirement pursuant to CCP § 2016.040.

Plaintiff filed a supplemental briefing on September 10, 2020, and Defendant filed an opposition briefing on September 17, 2020.

On October 09, 2020, the Court continued the instant matters to October 15, 2020 and directed counsel for Defendant to give notice.

RELIEF REQUESTED:

Defendant moves for an order compelling Plaintiff to provide further responses to Special Interrogatory No. 42 and seeks an associated monetary sanction of $5,000.

Defendant moves for an order compelling Plaintiff to undergo an independent mental examination on October 5, 2020 at 10:00am for no longer than six hours and seeks an associated monetary sanction of $4,000.

Defendant moves for an order compelling Plaintiff to sign authorizations allowing it to obtain Plaintiff's post-incident employment records and seeks an associated monetary sanction of $2,000.

Defendant moves for an order compelling Plaintiff to respond to questions concerning treatment for PTSD and related symptoms and seeks an associated monetary sanction of $6,000.

Defendant moves for an order imposing issue and evidentiary sanctions on Plaintiff due to spoliation of phone data.

DISCUSSION:

On June 17, 2020, Plaintiff proposed, and Defendant rejected, the following stipulation in exchange for Defendant voluntarily dropping the instant discovery motions:

(1) Plaintiff hereby confirms that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claims;

(2) Plaintiff confirms that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages;

(3) Plaintiff hereby confirms that no claim is being made for special damages related to any psychological treatment as a result of the subject motor vehicle collision that gave rise to this lawsuit;

(4) Plaintiff hereby confirms that he will not offer testimony at trial that he has suffered or been diagnosed with any psychiatric disorder as a result of this incident;

(5) Plaintiff hereby confirms that no claim is being made for future loss of wages as a result of the subject motor vehicle collision that gave rise to this lawsuit.

The Court also notes that Plaintiff subsequently voluntarily dismissed, with prejudice, three claims on June 26, 2020: (1) past wage loss; (2) future wage loss; and (3) claims for mental and emotional distress over and above that usually associated with physical injuries claimed.

Supplemental Briefing

Merits – In his supplemental briefing, Plaintiff concedes that the Court has the discretion to hear the merits of a motion despite finding that meet and confer efforts were deficient. The Court will thus adopt its July 31, 2020 tentative ruling.

---

Compel Further Special Interrogatories

Standard of Review – Compel Further Response to Interrogatories – CCP § 2030.300 provides for a party to bring a motion to compel further responses to interrogatories where the responding party provides inadequate, incomplete, or evasive responses, or the objections are too general or without merit. The propounding party must submit a declaration under CCP § 2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve each issue raised by the motion. (Code Civ. Proc., § 2030.300, subd. (b).) The motions must be brought within 45 days of service of the responses or supplemental responses. Code Civ. Proc., § 2030.300, subd. (c).) Sanctions are mandatory against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or the circumstances make imposition of sanctions unjust. (Code Civ. Proc., § 2030.300, subd. (d).)

Meet and Confer – On review of the Declaration of Joshua S. White, the Court finds that Defendant does not state facts demonstrating a good faith and reasonable effort for informal resolution, and instead pointed the Court toward documents containing said facts. The Court will nevertheless analyze the merits of the instant motion.

Merits – Plaintiff objected to Special Interrogatory No. 42 on privacy and relevance grounds. Defendant argues Plaintiff has waived its right to privacy by placing this subject matter at issue through its damages claims and by permitting prior discovery on this issue. Plaintiff argues that it has dismissed with prejudice its previous damages claims for (1) past wage loss, (2) future wage loss, and (3) mental and emotional distress over and above what is usually associated with the physical injuries claimed, and so Defendant now has no bases for inquiring into its past substance abuse treatment. Plaintiff also argues that it offered to make stipulations provisions above and beyond CCP § 2023.320(c) requirements. Defendant argues that Plaintiff's voluntary dismissal of the above claims still leaves it to testify as to mental injuries at trial, and that Plaintiff has only labeled its alleged mental injuries as "garden variety" without withdrawing the issue from controversy. Defendant also argues Plaintiff has not withdrawn claims of ongoing emotional distress, which also puts its mental condition at issue. Defendant finally argues Plaintiff's proposed stipulation does not address the above issues, and that the stipulation draws from CCP § 2032.320, which addresses mental examination and not interrogatory motions.

Under Article I section 1 of the California Constitution, California recognizes a constitutional right to privacy. This right “protects an individual’s reasonable expectation of privacy against a serious invasion.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 171.) Under California law, even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s inalienable right to privacy. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 855–56.) The right to privacy protects the individual’s reasonable expectation of privacy against a serious invasion. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) Where privacy interests are concerned, the Court is required to engage in a careful balancing of the right to privacy against the need for discovery. Disclosure may be ordered if a compelling public interest would be served. (Britt, supra, 20 Cal.3d at p. 855–56.) Further, even where a litigant “[c]an establish a compelling state interest in discovery, precision of compelled disclosure is required so that the right of privacy is not curtailed except to the extent necessitated by the legitimate governmental objective.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199–1200) (internal quotations omitted.)

"The patient-litigant exception precludes one who has placed in issue his physical condition from invoking the privilege on the ground that disclosure of his condition would cause him humiliation. He cannot have his cake and eat it too. . . the exception has been generally applied only to compel disclosure of medical treatment and communication concerning the very injury or impairment that was the subject matter of the litigation." (In re Lifschutz (1970) 2 Cal.3d 415, 433-34) (quoting City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 232.)

The Court finds that Plaintiff's continuing claims for mental and emotional distress form the subject matter of the instant litigation and keeps its mental condition in controversy. Interrogatory No. 42 is sufficiently related to Plaintiff's continuing claims of mental and emotional distress and so the patient-litigant exception militates against Plaintiff’s bjection to the interrogatory based on privacy and relevance grounds. The Court will thus overrule the privacy and relevance objections and grant the instant motion.

Sanctions – reserved

---

Compel Examination

Standard of Review – Compel Examination – A mental examination is permitted only by leave of court and must specify the "time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination." (Code Civ. Proc., § 2032.310.) A meet and confer declaration under CCP § 2016.040 is also required. (Ibid.) A party seeking an order to compel another party to submit to a mental examination must establish that (1) the other party’s mental condition is in controversy in the action, and (2) good cause for the examination exists. (Code Civ. Proc. §§ 2032.310 & 2032.320, subd. (a).) Generally speaking, a defendant may obtain a mental examination of the plaintiff if the plaintiff has placed his or her mental condition in controversy in the action. (Code Civ. Proc., § 2032.020.) Good cause is established by facts that appear in the record as a demonstrable reality; mere speculation alone is insufficient. (Mendez v. Superior Court (1988) 206 Cal. App. 3d 557, 570–71.) The standard for good cause requires the moving party to produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 840.)

Meet and Confer – On review of the Declaration of Joshua S. White, the Court finds that Defendant does not state facts demonstrating a good faith and reasonable effort for informal resolution, and instead pointed the Court toward documents containing said facts. The Court will nevertheless analyze the merits of the instant motion.

Requirement to Specify Examination Details – On review of the moving papers, the Court finds that Plaintiff has specified examination details pursuant to CCP § 2032.310(b).

Merits – Plaintiff contends the instant motion is mooted because it dismissed with prejudice its previous damages claims for (1) past wage loss, (2) future wage loss, and (3) mental and emotional distress over and above what is usually associated with the physical injuries claimed. Plaintiff further argues that it cancelled its May 18 IME date in Los Angeles and did not reschedule a new IME date due to the ongoing COVID-19 pandemic, and it acted with substantial justification and conforming to government COVID-19 guidelines in refusing to travel to Los Angeles. Plaintiff argues again that it offered stipulations pursuant to CCP § 2032.320(c). Defendant argues the motion is not mooted because Plaintiff still claims ongoing and severe psychiatric injuries and symptoms of PTSD and Depression, and only labels those injuries as garden variety. Defendant further argues that Plaintiff may still offer his mental and emotional distress claims by labeling them "garden variety" and cites to various deposition transcript portions that reference alleged severe mental conditions. (Reply, 5:22-6:15.) Finally, Defendant argues that it proposed an October 5, 2020 date for the IME, assuring that rescheduling was possible if safe travel was not possible due to the pandemic as the date approached, and received no reply. (Mot., Exhibit G, p. 3.)

As previously analyzed in the Motion to Compel Further Special Interrogatories, the Court finds that Defendant has sufficiently established that Plaintiff's mental condition is still in controversy, and further finds Defendant has sufficiently established that good cause exists to obtain a mental examination by showing testimony establishing that Plaintiff's injuries are severe and more than "garden variety". In addition, the Court finds that "exceptional circumstances" pursuant to CCP § 2032.320(b) are not required in the instant motion because Plaintiff proposed, but did not actually stipulate to, the stipulations under CCP § 2032.320(c). The Court will thus grant the instant motion. The Court will not award sanctions, as the instant motion was brought as a motion to compel pursuant to CCP § 2032.310, which does not provide for statutory sanctions.

---

Compel Signature

Standard of Review – Compel Signature – "If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production." (Code Civ. Proc., § 2025.480, subd. (a).) "The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exists: (1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive. (2) The discovery sought is unreasonably cumulative or duplicative. (3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought. (4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues." (Code Civ. Proc., § 2025.480, subd. (g).) " 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 compel an answer or production, 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." (Code Civ. Proc., § 2025.480, subd. (j).) A motion to compel production of discovery must be accompanied by a meet and confer declaration under CCP § 2016.040. (Code Civ. Proc., § 2025.480, subd. (b).)

Meet and Confer – On review of the Declaration of Joshua S. White, the Court finds that Defendant has not fulfilled meet and confer requirements pursuant to CCP § 2025.480(b). Paragraph 3 of the Declaration states that Defendant "made a reasonable and good faith attempt at an informal resolution" without providing factual support.

Accordingly, the Court will continue the instant motion to allow parties to meet and confer and will not impose sanctions at this time.

---

Compel Deposition

Standard of Review – Compel Deposition – "If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production." (Code Civ. Proc., § 2025.480, subd. (a).) 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 compel an answer or production, 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." (Code Civ. Proc., § 2025.480, subd. (j).) A motion to compel production of discovery must be accompanied by a meet and confer declaration under CCP § 2016.040. (Code Civ. Proc., § 2025.480, subd. (b).)

Meet and Confer – On review of the Declaration of Joshua S. White, the Court finds that Defendant has fulfilled meet and confer requirements pursuant to CCP § 2025.480(b). (Decl. White, Exhibits I & J.)

Merits – Plaintiff objected to all questions concerning mental health treatment received. Defendant contends it offered to not move to compel if Plaintiff agreed to withdraw claims of ongoing mental injury, which Plaintiff rejected. Defendant argues that Plaintiff's emotional distress claims are not "garden variety" due to Plaintiff's pre-existing conditions. Plaintiff contends that the instant motion is mooted because it voluntarily dismissed, with prejudice, its claims for (1) past wage loss; (2) future wage loss; and (3) claims for mental and emotional distress over and above that usually associated with physical injuries claimed. Plaintiff also argues its mental condition is no longer in controversy as it is no longer claiming severe, ongoing mental injuries.

As previously analyzed in the Motion to Compel Further Special Interrogatories, the Court finds that Defendant has sufficiently established that Plaintiff's mental condition is ongoing and still in controversy. Accordingly, the Court will grant the instant motion.

Sanctions – reserved.

---

Motion for Sanctions

Standard of Review – Sanctions – When a party engages in misuse of the discovery process, "[t]he court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. . . . The Court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence." (Code Civ. Proc., §§ 2023.030, subd. (b) & (c).) The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented. (McGinty v. Superior Court (1994) 26 Cal. App. 4th 204, 210.) Under California law, a discovery order cannot go further than is necessary to accomplish the purpose of discovery. (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 613.)

Merits – Defendant argues that Carmona committed intentional spoliation of evidence when he erased all data on his phone, which Defendant contends included evidence of how fast he was going before the accident, messages that he was sending, receiving, and viewing on a dating app, the identity of potential liability witnesses, and the time of the accident. Defendant further argues Carmona was represented by counsel at the time he deleted the data and gave multiple conflicting explanations over time as to the phone's whereabouts and condition. Plaintiff argues Carmona gave the phone away before Defendant specifically requested data from it, nearly two years after the filing of the instant suit, and that Defendant's contention of facts it could have recovered from the phone is speculation. Plaintiff also argues Defendant has not shown facts establishing Plaintiff willfully failed to comply with discovery requests or a court order, and that Defendant failed to serve a preservation letter to Plaintiff regarding the phone. Plaintiff further argues that Defendant was not prejudiced by the deletion, as Defendant could depose investigating officers, persons involved in the collision, and Plaintiff's physicians, friends, and family for the information sought. Defendant replies that Plaintiff had a general duty to preserve relevant evidence whether or not Defendant requested it, and that Defendant did ask for information from the phone seven months before the phone was wiped. Defendant contends that Plaintiff's deletion was intentional because he did so over a year after suit, over thirteen months after obtaining accident photos showing a data app with incoming messages open on his screen at the time of the accident, over nine months after asserting its a spoliation claim against a third party, and over seven months after providing discovery responses ignoring a request for data on its phone. Defendant argues such deletion prejudiced Defendant in that other potential witnesses cannot offer the information about the moment Plaintiff reached the intersection, the speed at which he traveled before the accident, and app activities before the accident.

A party may be subject to issue or evidence sanctions if it fails to obey a court order compelling discovery. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423.) In certain severe cases, however, such sanctions may be imposed even without a sanctioned party's failure to obey such order. (Id. at p. 1424.) The Albertsons court cited various cases where sanctioned parties (1) promised to complete an audit and provide a written report in exchange for a trial continuance, but failed to do so (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27); (2) testified that it was unable to find the requested documents and believed them stolen, later producing said documents at trial (Vallbona v. Springer (1996) 43 Cal.App.4th 1525); (3) repeatedly assured the opposing party that all responsive documents were produced and later sought to introduce undisclosed documents at trial (Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447); and (4) exhibited a pattern of willful discovery abuses (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202). (Albertson, supra, p. 1424-26.) And in Albertson, the court ruled that the issue and evidentiary sanctions imposed were improper where the defendant store allowed video recordings to be automatically recorded over in the ordinary course of business, because the plaintiffs requested "[a]ll photographs or other visual or digital recordations", did not receive the video, and waived their right to the recording by failing to move to compel a further response. (Id. at p. 1427-28.)

The circumstances in the instant case lie between the facts in Albertson, where the court denied evidentiary and issue sanctions, and the collection of severe cases where the courts issued such sanctions. Plaintiff has not refuted Defendant's contention that its explanation regarding the phone has changed and contradicted itself multiple times, nor that Carmona deleted the data several days after Plaintiff received written discovery requesting evidence that was allegedly on the phone. The Court finds that Defendant's written discovery propounded on January 10, 2018 did not specifically request information from the phone and only generally and broadly requested such information. But unlike the Albertson plaintiff, Defendant did not have the opportunity to file a motion to compel further, as the phone data was deleted only a few days after receipt of the discovery documents. Further, Plaintiff's deletion was intentional and not automatic and in the ordinary course of business, like the Albertson defendant. Plaintiff's conduct does not rise to the level of promising the evidence and later reneging, or making false representations the nonexistence of the evidence, as with the above cases, however. The Court finds that issue and evidentiary sanctions are unwarranted at this time, as Plaintiff's alleged conduct does not rise to the severe level required for issue and evidentiary sanctions, although the Court may consider adding a jury instruction concerning spoliation of evidence trial.

---

RULING: below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Lyft, Inc.’s Motion to Compel Further Special Interrogatories, Motion to Compel Independent Mental Examination, Motion to Compel Production of Employment Records, Motion to Compel Deposition Responses, and Motion to Compel Sanctions came on regularly for hearing on October 15, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO COMPEL FURTHER SPECIAL INTERROGATORIES IS GRANTED,

THE MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATION IS GRANTED.

THE MOTION TO COMPEL SIGNATURE FOR PRODUCTION OF EMPLOYMENT RECORDS IS CONTINUED.

THE MOTION TO COMPEL DEPOSITION RESPONSES IS GRANTED..

THE MOTION FOR SANCTIONS IS DENIED.

DATE: _______________ _______________________________

JUDGE

Case Number: BC672800    Hearing Date: July 31, 2020    Dept: A

The Superior Court is re-opening under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use remote appearance technology such as Court Call or LACourtConnect (when it becomes available on August 3 for Branch Civil)

If it is indispensable for counsel to be present in court, face masks are mandated (unless a court orders otherwise) and social distancing rules are in force.

Carmona v Toso

Motion to Compel Further Special Interrogatory;

Motion to Compel Independent Mental Examination;

Motion to Compel Employment Records;

Motion to Compel Response to Deposition;

Motion for Sanctions

Calendar:

20

Case No.:

BC672800

Hearing Date:

July 31, 2020

Action Filed:

August 17, 2017

Trial Date:

Not Set

MP:

Defendant Lyft, Inc.

RP:

Plaintiff Ivan Carmona

ALLEGATIONS:

The instant action arises from a motor vehicle collision on or about July 14, 2017, where Plaintiff Ivan Carmona (“Plaintiff”) collided with a driver for Defendant Lyft, Inc. (“Defendant”) while Plaintiff was riding a motorcycle.

Plaintiff filed the Complaint on August 17, 2017, alleging a single cause of action for Motor Vehicle Negligence.

PRESENTATION:

Defendant filed a motion to compel further special interrogatories on June 16, 2020, Plaintiff filed an opposition on July 20, 2020, and Defendant filed a reply on July 24, 2020.

Defendant filed a motion to compel an independent mental examination on July 16, 2020, Plaintiff filed an opposition on July 20, 2020, and Defendant filed a reply on July 24, 2020.

Defendant filed a motion to compel employment records on June 16, 2020, Plaintiff filed an opposition on July 20, 2020, and Defendant filed a reply on July 24, 2020.

Defendant filed a motion to compel deposition responses on July 8, 2020, Plaintiff filed an opposition on July 20, 2020, and Defendant filed a reply on July 24, 2020.

Defendant filed a motion for sanctions on June 19, 2020, Plaintiff filed an opposition on July 20, 2020, and Defendant filed a reply on July 24, 2020.

RELIEF REQUESTED:

Defendant moves for an order compelling Plaintiff to provide further responses to Special Interrogatory No. 42 and seeks an associated monetary sanction of $5,000.

Defendant moves for an order compelling Plaintiff to undergo an independent mental examination on October 5, 2020 at 10:00am for no longer than six hours and seeks an associated monetary sanction of $4,000.

Defendant moves for an order compelling Plaintiff to sign authorizations allowing it to obtain Plaintiff's post-incident employment records and seeks an associated monetary sanction of $2,000.

Defendant moves for an order compelling Plaintiff to respond to questions concerning treatment for PTSD and related symptoms and seeks an associated monetary sanction of $6,000.

Defendant moves for an order imposing issue and evidentiary sanctions on Plaintiff due to spoliation of phone data.

DISCUSSION:

The Court notes that on June 17, 2020, Plaintiff proposed, and Defendant rejected, the following stipulation in exchange for Defendant voluntarily dropping the instant discovery motions:

(1) Plaintiff hereby confirms that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claims;

(2) Plaintiff confirms that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages;

(3) Plaintiff hereby confirms that no claim is being made for special damages related to any psychological treatment as a result of the subject motor vehicle collision that gave rise to this lawsuit;

(4) Plaintiff hereby confirms that he will not offer testimony at trial that he has suffered or been diagnosed with any psychiatric disorder as a result of this incident;

(5) Plaintiff hereby confirms that no claim is being made for future loss of wages as a result of the subject motor vehicle collision that gave rise to this lawsuit.

The Court also notes that Plaintiff subsequently voluntarily dismissed, with prejudice, three claims on June 26, 2020: (1) past wage loss; (2) future wage loss; and (3) claims for mental and emotional distress over and above that usually associated with physical injuries claimed.

Compel Further SI

Standard of Review

CCP § 2030.300 provides for a party to bring a motion to compel further responses to interrogatories where the responding party provides inadequate, incomplete, or evasive responses, or the objections are too general or without merit. The propounding party must submit a declaration under CCP § 2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve each issue raised by the motion. (Code Civ. Proc., § 2030.300, subd. (b).) The motions must be brought within 45 days of service of the responses or supplemental responses. Code Civ. Proc., § 2030.300, subd. (c).) Sanctions are mandatory against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or the circumstances make imposition of sanctions unjust. (Code Civ. Proc., § 2030.300, subd. (d).)

Meet and Confer

On review of the Declaration of Joshua S. White, the Court finds that Defendant does not state facts demonstrating a good faith and reasonable effort for informal resolution, and instead pointed the Court toward documents containing said facts. The Court will nevertheless analyze the merits of the instant motion.

Merits

Plaintiff objected to Special Interrogatory No. 42 on privacy and relevance grounds. Defendant argues Plaintiff has waived its right to privacy by placing this subject matter at issue through its damages claims and by permitting prior discovery on this issue. Plaintiff argues that it has dismissed with prejudice its previous damages claims for (1) past wage loss, (2) future wage loss, and (3) mental and emotional distress over and above what is usually associated with the physical injuries claimed, and so Defendant now has no bases for inquiring into its past substance abuse treatment. Plaintiff also argues that it offered to make stipulations provisions above and beyond CCP § 2023.320(c) requirements. Defendant argues that Plaintiff's voluntary dismissal of the above claims still leaves it to testify as to mental injuries at trial, and that Plaintiff has only labeled its alleged mental injuries as "garden variety" without withdrawing the issue from controversy. Defendant also argues Plaintiff has not withdrawn claims of ongoing emotional distress, which also puts its mental condition at issue. Defendant finally argues Plaintiff's proposed stipulation does not address the above issues, and that the stipulation draws from CCP § 2032.320, which addresses mental examination and not interrogatory motions.

Under Article I section 1 of the California Constitution, California recognizes a constitutional right to privacy. This right “protects an individual’s reasonable expectation of privacy against a serious invasion.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 171.) Under California law, even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s inalienable right to privacy. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 855–56.) The right to privacy protects the individual’s reasonable expectation of privacy against a serious invasion. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) Where privacy interests are concerned, the Court is required to engage in a careful balancing of the right to privacy against the need for discovery. Disclosure may be ordered if a compelling public interest would be served. (Britt, supra, 20 Cal.3d at p. 855–56.) Further, even where a litigant “[c]an establish a compelling state interest in discovery, precision of compelled disclosure is required so that the right of privacy is not curtailed except to the extent necessitated by the legitimate governmental objective.” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199–1200) (internal quotations omitted.)

"The patient-litigant exception precludes one who has placed in issue his physical condition from invoking the privilege on the ground that disclosure of his condition would cause him humiliation. He cannot have his cake and eat it too. . . the exception has been generally applied only to compel disclosure of medical treatment and communication concerning the very injury or impairment that was the subject matter of the litigation." (In re Lifschutz (1970) 2 Cal.3d 415, 433-34) (quoting City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 232.)

The Court finds that Plaintiff's continuing claims for mental and emotional distress form the subject matter of the instant litigation and keeps its mental condition in controversy. Interrogatory No. 42 is sufficiently related to Plaintiff's continuing claims of mental and emotional distress and so the patient-litigant exception bars Plaintiff from objecting to the interrogatory based on privacy and relevance grounds. The Court will thus overrule the privacy and relevance objections and grant the instant motion.

Sanctions

The Court will award Defendant sanctions in the amount of $2,000, representing 4 hours of work at $500 per hour.

---

Compel Examination

Standard of Review

A mental examination is permitted only by leave of court and must specify the "time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination." (Code Civ. Proc., § 2032.310.) A meet and confer declaration under CCP § 2016.040 is also required. (Ibid.) A party seeking an order to compel another party to submit to a mental examination must establish that (1) the other party’s mental condition is in controversy in the action, and (2) good cause for the examination exists. (Code Civ. Proc. §§ 2032.310 & 2032.320, subd. (a).) Generally speaking, a defendant may obtain a mental examination of the plaintiff if the plaintiff has placed his or her mental condition in controversy in the action. (Code Civ. Proc., § 2032.020.) Good cause is established by facts that appear in the record as a demonstrable reality; mere speculation alone is insufficient. (Mendez v. Superior Court (1988) 206 Cal. App. 3d 557, 570–71.) The standard for good cause requires the moving party to produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal. 3d 833, 840.)

Meet and Confer

On review of the Declaration of Joshua S. White, the Court finds that Defendant does not state facts demonstrating a good faith and reasonable effort for informal resolution, and instead pointed the Court toward documents containing said facts. The Court will nevertheless analyze the merits of the instant motion.

Specify Examination Details

On review of the moving papers, the Court finds that Plaintiff has specified examination details pursuant to CCP § 2032.310(b).

Merits

Plaintiff contends the instant motion is mooted because it dismissed with prejudice its previous damages claims for (1) past wage loss, (2) future wage loss, and (3) mental and emotional distress over and above what is usually associated with the physical injuries claimed. Plaintiff further argues that it cancelled its May 18 IME date in Los Angeles and did not reschedule a new IME date due to the ongoing COVID-19 pandemic, and it acted with substantial justification and conforming to government COVID-19 guidelines in refusing to travel to Los Angeles. Plaintiff argues again that it offered stipulations pursuant to CCP § 2032.320(c). Defendant argues the motion is not mooted because Plaintiff still claims ongoing and severe psychiatric injuries and symptoms of PTSD and Depression, and only labels those injuries as garden variety. Defendant further argues that Plaintiff may still offer his mental and emotional distress claims by labeling them "garden variety" and cites to various deposition transcript portions that reference alleged severe mental conditions. (Reply, 5:22-6:15.) Finally, Defendant argues that it proposed an October 5, 2020 date for the IME, assuring that rescheduling was possible if safe travel was not possible due to the pandemic as the date approached, and received no reply. (Mot., Exhibit G, p. 3.)

As previously analyzed in the Motion to Compel Further Special Interrogatories, the Court finds that Defendant has sufficiently established that Plaintiff's mental condition is still in controversy, and further finds Defendant has sufficiently established that good cause exists to obtain a mental examination by showing testimony establishing that Plaintiff's injuries are severe and more than "garden variety". In addition, the Court finds that "exceptional circumstances" pursuant to CCP § 2032.320(b) are not required in the instant motion because Plaintiff proposed, but did not actually stipulate to, the stipulations under CCP § 2032.320(c). The Court will thus grant the instant motion. The Court will not award sanctions, as the instant motion was brought as a motion to compel pursuant to CCP § 2032.310, which does not provide for statutory sanctions.

---

Compel Signature

Standard of Review

"If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production." (Code Civ. Proc., § 2025.480, subd. (a).) "The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exists: (1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive. (2) The discovery sought is unreasonably cumulative or duplicative. (3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought. (4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues." (Code Civ. Proc., § 2025.480, subd. (g).) " 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 compel an answer or production, 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." (Code Civ. Proc., § 2025.480, subd. (j).) A motion to compel production of discovery must be accompanied by a meet and confer declaration under CCP § 2016.040. (Code Civ. Proc., § 2025.480, subd. (b).)

Meet and Confer

On review of the Declaration of Joshua S. White, the Court finds that Defendant has not fulfilled meet and confer requirements pursuant to CCP § 2025.480(b). Paragraph 3 of the Declaration states that Defendant "made a reasonable and good faith attempt at an informal resolution" without providing factual support.

Accordingly, the Court will continue the instant motion to allow parties to meet and confer and will not impose sanctions at this time.

---

Compel Deposition

Standard of Review

"If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production." (Code Civ. Proc., § 2025.480, subd. (a).) 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 compel an answer or production, 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." (Code Civ. Proc., § 2025.480, subd. (j).) A motion to compel production of discovery must be accompanied by a meet and confer declaration under CCP § 2016.040. (Code Civ. Proc., § 2025.480, subd. (b).)

Meet and Confer

On review of the Declaration of Joshua S. White, the Court finds that Defendant has fulfilled meet and confer requirements pursuant to CCP § 2025.480(b). (Decl. White, Exhibits I & J.)

Merits

Plaintiff objected to all questions concerning mental health treatment it has received during its deposition. Defendant contends it offered to not move to compel if Plaintiff agreed to withdraw claims of ongoing mental injury, which Plaintiff rejected. Defendant argues that Plaintiff's emotional distress claims are not "garden variety" due to Plaintiff's pre-existing conditions. Plaintiff contends that the instant motion is mooted because it voluntarily dismissed, with prejudice, its claims for (1) past wage loss; (2) future wage loss; and (3) claims for mental and emotional distress over and above that usually associated with physical injuries claimed. Plaintiff also argues its mental condition is no longer in controversy as it is no longer claiming severe, ongoing mental injuries.

As previously analyzed in the Motion to Compel Further Special Interrogatories, the Court finds that Defendant has sufficiently established that Plaintiff's mental condition is ongoing and still in controversy. Accordingly, the Court will grant the instant motion.

Sanctions

The Court will grant sanctions in the amount of $2,000, representing four hours at $500 per hour.

---

Motion for Sanctions

Standard of Review

When a party engages in misuse of the discovery process, "[t]he court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. . . . The Court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence." (Code Civ. Proc., §§ 2023.030, subd. (b) & (c).) The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented. (McGinty v. Superior Court (1994) 26 Cal. App. 4th 204, 210.) Under California law, a discovery order cannot go further than is necessary to accomplish the purpose of discovery. (Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 613.)

Merits

Defendant argues that Carmona committed intentional spoliation of evidence when he erased all data on his phone, which Defendant contends included evidence of how fast he was going before the accident, messages that he was sending, receiving, and viewing on a dating app, the identity of potential liability witnesses, and the time of the accident. Defendant further argues Carmona was represented by counsel at the time he deleted the data and gave multiple conflicting explanations over time as to the phone's whereabouts and condition. Plaintiff argues Carmona gave the phone away before Defendant specifically requested data from it, nearly two years after the filing of the instant suit, and that Defendant's contention of facts it could have recovered from the phone is speculation. Plaintiff also argues Defendant has not shown facts establishing Plaintiff willfully failed to comply with discovery requests or a court order, and that Defendant failed to serve a preservation letter to Plaintiff regarding the phone. Plaintiff further argues that Defendant was not prejudiced by the deletion, as Defendant could depose investigating officers, persons involved in the collision, and Plaintiff's physicians, friends, and family for the information sought. Defendant replies that Plaintiff had a general duty to preserve relevant evidence whether or not Defendant requested it, and that Defendant did ask for information from the phone seven months before the phone was wiped. Defendant contends that Plaintiff's deletion was intentional because he did so over a year after suit, over thirteen months after obtaining accident photos showing a data app with incoming messages open on his screen at the time of the accident, over nine months after asserting its a spoliation claim against a third party, and over seven months after providing discovery responses ignoring a request for data on its phone. Defendant argues such deletion prejudiced Defendant in that other potential witnesses cannot offer the information about the moment Plaintiff reached the intersection, the speed at which he traveled before the accident, and app activities before the accident.

A party may be subject to issue or evidence sanctions if it fails to obey a court order compelling discovery. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423.) In certain severe cases, however, such sanctions may be imposed even without a sanctioned party's failure to obey such order. (Id. at p. 1424.) The Albertsons court cited various cases where sanctioned parties (1) promised to complete an audit and provide a written report in exchange for a trial continuance, but failed to do so (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27); (2) testified that it was unable to find the requested documents and believed them stolen, later producing said documents at trial (Vallbona v. Springer (1996) 43 Cal.App.4th 1525); (3) repeatedly assured the opposing party that all responsive documents were produced and later sought to introduce undisclosed documents at trial (Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447); and (4) exhibited a pattern of willful discovery abuses (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202). (Albertson, supra, p. 1424-26.) And in Albertson, the court ruled that the issue and evidentiary sanctions imposed were improper where the defendant store allowed video recordings to be automatically recorded over in the ordinary course of business, because the plaintiffs requested "[a]ll photographs or other visual or digital recordations", did not receive the video, and waived their right to the recording by failing to move to compel a further response. (Id. at p. 1427-28.)

The circumstances in the instant case lie between the facts in Albertson, where the court denied evidentiary and issue sanctions, and the collection of severe cases where the courts issued such sanctions. Plaintiff has not refuted Defendant's contention that its explanation regarding the phone has changed and contradicted itself multiple times, nor that Carmona deleted the data several days after Plaintiff received written discovery requesting evidence that was allegedly on the phone. The Court finds that Defendant's written discovery propounded on January 10, 2018 did not specifically request information from the phone and only generally and broadly requested such information. But unlike the Albertson plaintiff, Defendant did not have the opportunity to file a motion to compel further, as the phone data was deleted only a few days after receipt of the discovery documents. Further, Plaintiff's deletion was intentional and not automatic and in the ordinary course of business, like the Albertson defendant. Plaintiff's conduct does not rise to the level of promising the evidence and later reneging, or making false representations the nonexistence of the evidence, as with the above cases, however. The Court finds that issue and evidentiary sanctions are unwarranted at this time, as Plaintiff's alleged conduct does not rise to the severe level required for issue and evidentiary sanctions, although the Court may give a jury instruction if requested concerning spoliation of evidence at the conclusion of trial.

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Lyft, Inc.’s Motion to Compel Further Special Interrogatories, Motion to Compel Independent Mental Examination, Motion to Compel Production of Employment Records, Motion to Compel Deposition Responses, and Motion to Compel Sanctions came on regularly for hearing on July 31, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO COMPEL FURTHER SPECIAL INTERROGATORIES IS GRANTED, WITH SANCTIONS AWARDED FOR DEFENDANT IN THE AMOUNT OF $2,000.

THE MOTION TO COMPEL INDEPENDENT MENTAL EXAMINATION IS GRANTED.

THE MOTION TO COMPEL PRODUCTION OF EMPLOYMENT RECORDS IS CONTINUED.

THE MOTION TO COMPEL DEPOSITION RESPONSES IS GRANTED, WITH SANCTIONS AWARDED FOR DEFENDANT IN THE AMOUNT OF $2,000.

THE MOTION FOR SANCTIONS IS DENIED.

DATE: _______________ _______________________________

JUDGE

Case Number: BC672800    Hearing Date: January 31, 2020    Dept: A

Carmona v Toso

Motion to Compel Deposition Responses

Calendar:

08

Case No.:

BC672800

Hearing Date:

January 31, 2020

Action Filed:

August 17, 2017

Trial Date:

May 11, 2020

MP:

Defendant Lyft, Inc.

RP:

Plaintiff Ivan Carmona

ALLEGATIONS:

The instant action arises from a motor vehicle collision on or about July 14, 2017, where Plaintiff Ivan Carmona (“Plaintiff”) collided with a driver for Defendant Lyft, Inc. (“Defendant”) while Plaintiff was riding a motorcycle.

Plaintiff field his Complaint on August 17, 2017, alleging a single cause of action for Motor Vehicle Negligence.

PRESENTATION:

Defendant filed the instant motion on December 23, 2019, and Plaintiff opposed the motion on January 17, 2020. The reply brief was received on January 24, 2020.

RELIEF REQUESTED:

Defendant moves to compel Plaintiff to respond to certain questions regarding conversations held with Robert Wills.

DISCUSSION:

Standard of Review (Deposition Response) – Under Code of Civ. Proc. §2025.480, “[i]f a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer or production.” Code of Civ. Proc. §2025.480(a). Such a motion must be made no later than 60 days after the completion of the record of the deposition. Code of Civ. Proc. §2025.480(b). A motion must also be preceded by reasonable meet and confer efforts to informally resolve the dispute. Id. Monetary sanctions are mandatory against a party who unsuccessfully makes or opposes a motion unless there is a finding of substantial justification or injustice from imposition of the sanction. Code of Civ. Proc. §2025.480(j).

“In general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege…. After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver. [Citation].” Venture Law Group v. Superior Court (2004) 118 Cal. App. 4th 96, 102.

The Court first reviews the Plaintiff’s opposition to determine whether an attorney-client relationship exists between Plaintiff and Mr. Wills. On review of the evidence provided, the Court concludes that (1) Mr. Wills is a licensed attorney in Florida, (Opposition, Ex. A); (2) Mr. Wills has acted as Plaintiff’s attorney during the course of litigation by (a) attending Plaintiff’s deposition as his counsel, (b) referring Plaintiff to his current attorneys of record and consulting with them throughout the litigation (Decl. of Rosenthal, ¶¶5-8), and (c) investigating the instant incident on his behalf (Opposition, Ex. C). Pursuant to the presented evidence, Plaintiff has established the existence of the attorney-client relationship by and between himself and Mr. Wills, shifting the burden to Defendant to show why the privilege does not apply, an exception, or a waiver.

On motion, Defendant presents only two questions for the Court to consider in adjudicating the matter before it: (1) “[Y]ou indicated a moment before we came back on the record that your position is that Mr. Wills became Mr. Carmona’s attorney immediately after the accident, and that any conversations between Mr. Carmona and Mr. Willis that happened after the accident are privileged?”; and (2) “Are there any written agreements between you and Mr. Wills?”

As to the first question, the Court notes that the record indicates that the question was directed to Plaintiff’s counsel, who answered the question. There therefore exists no basis for the Court to order Plaintiff to answer the first question raised as there is no question posed to Plaintiff. Accordingly, the motion is denied as to the first question.

As to the second question, the Court finds that Defendant has failed to demonstrate either that (1) the privilege does not apply to the question, (2) there is an exception, or (3) that the privilege has been waived. While Defendant argues in reply that there hypothetically exist many categories of written agreements that do not implicate privilege (Reply, 8:16-9:1), Defendant has not met its burden of establishing that such category of relevant written agreement exists in this case, and that it is discoverable under the instant circumstances.

The remaining arguments made by Defendant request the Court issue an advisory opinion as to what may or may not be asked at a deposition such that a refusal to answer on the grounds of attorney-client privilege would be inappropriate. See Reply, 7:3-24. Such questions were not posed at the deposition subject to the instant motion, and are therefore not properly before the Court. As “[t]he rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court”, the Court will deny the instant motion. Younger v. Superior Court (1978) 21 Cal. 3d 102, 119.

---

RULING: DENY

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Lyft, Inc.’s Motion to Compel Further Deposition Reponses came on regularly for hearing on January 31, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS DENIED.

DATE: _______________ _______________________________

JUDGE

Case Number: BC672800    Hearing Date: January 24, 2020    Dept: A

Carmona v Toso

Motion for Summary Judgment

Calendar:

07

Case No.:

BC672800

Hearing Date:

January 24, 2020

Action Filed:

August 17, 2017

Trial Date:

May 11, 2020

MP:

Defendant Lyft, Inc.

RP:

Plaintiff Ivan Carmona

ALLEGATIONS:

The instant action arises from a motor vehicle collision on July 14, 2017, where Plaintiff Ivan Carmona (“Plaintiff”) collided with a driver for Defendant Lyft, Inc. (“Defendant”) while Plaintiff was riding a motorcycle.

Plaintiff field his Complaint on August 17, 2017, alleging a single cause of action for Motor Vehicle Negligence.

PRESENTATION:

Defendant filed a motion for summary judgment on Plaintiff’s sole cause of action on November 15, 2019, pursuant to a stipulation between the parties as to the time to hear the motion. Plaintiff filed opposition to the motion on January 10, 2020. A reply brief was received on January 17, 2020.

RELIEF REQUESTED:

Defendant Lyft, Inc. moves for summary judgment on the complaint of plaintiff.

DISCUSSION:

Standard of Review (Motion for Summary Judgement) – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. Code Civ. Proc. §437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” Code Civ. Proc. § 437c(p)(2).

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, “‘[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .’” Gold v. Weissman (2004) 114 Cal. App. 4th 1195, 1198-99. “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.

With a summary judgment motion, a three-step analysis is required of the trial court. AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65. First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. Id. Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. Id. When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. Id. On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. Code of Civ. Proc. §437c(o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.

---

First Cause of Action (Motor Vehicle Negligence) – The elements of a claim for negligent injury to person or property are: (1) defendant's legal duty of care toward plaintiff; (2) defendant's breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117.

Under the doctrine of respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the scope of employment. Maria D. v. Westech Residential Security, Inc. (2000) 85 Cal.App.4th 125, 134. For the doctrine of respondeat superior to apply, the plaintiff must provide evidence that the employee's tortious conduct was committed within the scope of employment. Id. A risk arises out of the employment when in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. Id. In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer. Id. Tortious conduct that violates an employee's official duties or disregards the employer's express orders may nonetheless be within the scope of employment. Id. So may acts that do not benefit the employer, or are willful or malicious in nature. Id. However, “[a]nalytically, the question of whether a tort is committed within the course of employment turns on whether (1) the act performed was either required or incidental to the employee's duties or (2) the employee's misconduct could be reasonably foreseen as an outgrowth of the employee's duties.” Id. at 138 (quoting Rita M. v. Roman Catholic Archbishop (1986) 187 Cal. App. 3d 1453, 1456).

Defendant moves for summary judgment on the grounds that driver of the subject vehicle, Ryan Toso (“Toso”) was not working as a Lyft driver at the time the accident occurred, making it legally impossible to hold Defendant vicariously liable for the accident. Motion, pp. 6-9. In support of this argument, Defendant contends that Toso logged off of the Lyft application at 7:28P.M., making him unavailable to collect any more passengers, and then proceeded to perform personal errands – specifically driving to purchase dinner. Motion, 5:21-6:7. The evidence provided in support of this argument is (1) the deposition testimony of Toso, where he testifies that he was driving to a Subway location at the time of the accident, (Decl. of White, Ex. 3, 72:16-24); (2) the Declaration of Jacobs attesting to the time records kept by Lyft indicating that Toso logged out of Lyft’s application at 7:28P.M. on the day of the accident; and (3) Toso’s response to Request for Admission No. 9, where he admits that he had logged out of the application at the time of the accident. These facts are not disputed by Plaintiff, although Plaintiff disputes the legal effect of these facts, and provides additional facts to contradict the conclusions Lyft draws from the instant set of facts. See Plaintiff’s Response to Separate Statement Nos. 7-9.

The primary dispute between the parties is a legal dispute where Plaintiff argues for the applicability of the required vehicle exception to the coming and going rule to establish liability against Lyft, and Lyft contends that the nature of the relationship by and between Toso and Lyft precludes the application of the coming and going rule entirely as any ‘commute’ begins and end with the press of a button.

Under the required vehicle exception, liability may attach to an employer if “the use of a personally owned vehicle is either an express or implied condition of employment [Citation], or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has ‘reasonably come to rely upon its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.’ [Citation].” Lobo v. Tamco (2010) 182 Cal. App. 4th 297, 301. The required-vehicle exception has been applied in a variety of circumstances including trips to and from worksites on a daily basis, trips home using a company-owned vehicle, trips on a commute to work when the employee used her personal vehicle to run errands for an employer, and on a commute home when vehicle use is an express condition of employment but infrequent. See Lobo v. Tamco (2010) 182 Cal. App. 4th 297 (Defendant was on his commute home when he collided with a motorcycle, the employer was determined to be vicariously liable even though employee had used his car on behalf of the employer approximately 10 times in the previous 16 years, but when such use was an express condition of his employment); Tryer v. Ojai Valley School (1992) 9 Cal. App. 4th 1476 (Even though employer did not compensate employee for travel between two campuses, the fact that employee required the travel as a necessary condition to the job task of feeding horses at two locations was sufficient to justify the vehicle exception); State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal. App. 3d 223, 241-42 (Although the accident occurred while the employee was traveling home in a company car, the fact that the employee “had duties both in the office and in the field. He was required to use his vehicle to travel to work sites. He delivered materials in his vehicle to the work site. He was required to travel throughout the county and sometimes outside the county. It was an express condition of his employment that Wenz [employee] use the vehicle in attending to his duties.” Justified the application of the vehicle exception.); and County of Tulare v. Workers' Comp. Appeals Bd. (1985) 170 Cal. App. 3d 1247, 1253-54 (“While the Board found there was no express or absolute requirement that Ms. Caires bring her car to work, by custom and practice the employer came to rely upon Ms. Caires using her car for various errands during the workday, and that having the car available for errands had become ‘an expectation’ from past practices. In arriving at this conclusion, the court relied heavily upon the admitted facts that Ms. Caires, upon submission of claims, was reimbursed for mileage by the County when she used her vehicle, and that the use of personal cars to run errands was encouraged by the County because it cost the County less than it would to use pool cars.”).

Liability for employees has been circumscribed in more recent cases, where the Second District Court of Appeal held that the required vehicle exception to the coming and going rule does not apply when the employer does not require use of the vehicle the day the accident occurred. Newland v. County of Los Angeles (2018) 24 Cal. App. 5th 676, 693 (“there was no evidence to support that Prigo was required to drive to or from work on the date of the accident. Prigo was required to drive his car to perform several of his job duties outside the office, including appearances in branch courts, visits to the jails, viewing crime scenes and meeting witnesses. However, he did not have to perform these duties every day. He knew in advance when he had tasks outside the workplace for which he needed his car. When he had reasonable alternatives to driving and did not have tasks scheduled outside the workplace, he used public transportation to commute to work. If reasonable public transportation had been available from his home in Long Beach, he would have used it. He did not have any job duties outside the workplace scheduled for the day of the accident, and he did not use his car for work purposes that day. Prigo never had emergency situations that required the use of his car during the day for work, except when he was in trial. In short, he did not need his car for work purposes on the day of the accident.”).[1] And in the Fifth District Court of Appeals, which has held that the inquiry into whether a vehicle is actually required can hinge on factors such as who the employer allocated responsibility for transportation, whether such transportation was required by the employer, and whether there would be negative employment consequences from failure to engage in such transportation activities. Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal. App. 5th 608, 627 (“In this case, the fact that Ibarra was Mooney's supervisor and asked Mooney for a ride to and from work, taken alone, might support an inference that Ibarra's request was attributable to H&P. [Citation.] Such an inference, however, is unreasonable when considered in the context of other undisputed facts established by H&P. First, crew members, not H&P, were responsible for arranging their transportation to and from work. Second, providing transportation to Ibarra or other crew members was not a condition of Mooney's employment. Third, there would have been no repercussion to Mooney's job status if he did not provide Ibarra with a ride. These undisputed facts make it unreasonable to infer that when Ibarra asked Mooney for a ride to and from work, H&P was impliedly requiring Mooney to provide Ibarra with transportation.”). .”). Most recently, in Bingener v. City of Los Angeles (Dec. 16, 2019, No. B291112) ___Cal. App. 5th___, the court reaffirmed the applicability of the going and coming rule when an accident “was not caused by anything inherent in or created by the enterprise”, and emphasized how vicarious liability should not applied when “[employee’s] job was performed in a laboratory; he never went out in the field and, like his coworkers, he walked to other buildings in the plant if he needed to. Although the job description required a driver's license, [employee’s] unit did not have a mandatory driving requirement. [Employee] never, in fact, drove his personal car for work, nor did he run work-related errands on his way to or from the plant.” Bingener v. City of Los Angeles (Dec. 16, 2019, No. B291112) ___Cal.App.5th___ [2019 Cal. App. LEXIS 1313, at *11].

Here, the Court concludes that the facts necessary to satisfy the required vehicle exception to the coming and going rule have been met by Plaintiff. Specifically, the Court considers that (1) Toso was required to use his personal vehicle as a condition of his employment by Lyft, (2) it would be impossible to perform any of the job tasks required by Lyft (retrieving passengers and dropping them off at different locations) without the use of a personal vehicle, and (3) Toso’s obligations to Lyft caused him to drive to the location where the instant accident ultimately occurred. As such, the Court considers this case more similar to Lobo, Tryer, and Haight, and will deny summary judgement on that basis.

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Lyft, Inc.’s Motion for Summary Judgment came on regularly for hearing on January 24, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR SUMMARY JUDGMENT IS DENIED.

DATE: _______________ _______________________________

JUDGE


[1] Additionally, the Newland court distinguished Lobo v. Tamco on the basis of the express requirement of the Lobo employer that the employee always be available to make trips to customer worksites, and noting the importance of the Lobo court’s holding that “Here, [Del Rosario's supervisor] testified that Tamco required Del Rosario to make his car available rather than providing him with a company car in part because the need arose infrequently. Thus, the availability of Del Rosario's car provided Tamco with both the benefit of insuring that Del Rosario could respond promptly to customer complaints even if no sales engineer was available to drive him to the customer's site and the benefit of not having to provide him with a company car. Based on this evidence, a reasonable trier of fact could find that the ‘required-vehicle’ exception does apply.” Newland v. County of Los Angeles (2018) 24 Cal. App. 5th 676, 691 (quoting Lobo v. Tamco (2010) 182 Cal.App.4th 297, 303).

Case Number: BC672800    Hearing Date: January 03, 2020    Dept: A

Carmona v Toso

Discovery Motions

Calendar:

08

Case No.:

BC672800

Hearing Date:

January 03, 2020

Action Filed:

August 17, 2017

Trial Date:

May 11, 2020

MP:

Defendant Lyft, Inc.

RP:

Plaintiff Ivan Carmona

ALLEGATIONS:

The instant action arises from a motor vehicle collision on or about July 14, 2017, where Plaintiff motorcyclist Ivan Carmona (“Plaintiff”) collided with a driver for Defendant Lyft, Inc. (“Defendant”).

Plaintiff field his Complaint on August 17, 2017, alleging a single cause of action for Motor Vehicle Negligence.

PRESENTATION:

Defendant filed the instant motion on November 26, 2019, and Plaintiff opposed the motions on December 19, 2019. Reply briefs were received on December 26, 2019.

RELIEF REQUESTED:

Defendant moves (1) to compel Plaintiff to questions regarding his psychological injuries, and (2) compel Plaintiff to submit to a Defense Psychiatric Evaluation.

DISCUSSION:

Standard of Review (Deposition Response) – Under Code of Civ. Proc. §2025.480, “[i]f a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer or production.” Code of Civ. Proc. §2025.480(a). Such a motion must be made no later than 60 days after the completion of the record of the deposition. Code of Civ. Proc. §2025.480(b). A motion must also be preceded by reasonable meet and confer efforts to informally resolve the dispute. Id. Monetary sanctions are mandatory against a party who unsuccessfully makes or opposes a motion unless there is a finding of substantial justification or injustice from imposition of the sanction. Code of Civ. Proc. §2025.480(j).

Standard of Review (Psychiatric Evaluation) – Any party is entitled to demand one physical examination from a plaintiff claiming personal injury. Code Civ. Proc. §2032.220,(a). If a party desires any examination beyond that authorized by Code Civ. Proc. §2032.220, it must comply with the requirements of Code Civ. Proc. §2032.310 pursuant to the standards set forth in Code Civ. Proc. §2032.320. Under these statutes, a mental examination is permitted only by leave of court. Code Civ. Proc. §2032.310. A party seeking an order to compel another party to submit to a mental examination must establish that (1) the other party’s mental condition is in controversy in the action, and (2) good cause for the examination exists. Code Civ. Proc. §2032.310; 2032.320(a). Generally speaking, a defendant may obtain a mental examination of the plaintiff if the plaintiff has placed his or her mental condition in controversy in the action. Code Civ. Proc. §2032.020. Good cause is established by facts that appear in the record as a demonstrable reality; mere speculation alone is insufficient. Mendez v. Superior Court (1988) 206 Cal. App. 3d 557, 570–71. The standard for good cause requires the moving party to produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. Vinson v. Superior Court (1987) 43 Cal. 3d 833, 840. There is no limit on the number of examinations that may be ordered by the trial court on a showing of good cause. Shapira v. Superior Court (1990) 224 Cal. App. 3d 1249.

Issue in Controversy – The primary issue that must be adjudicated by the Court in both motions is whether Plaintiff has placed his emotional distress in controversy in this action such that the discovery sought by Defendant is directly relevant to the information sought. The Court has, accordingly, reviewed the Compliant, and finds that the Plaintiff is not alleging emotional damages as a category of injury. See Complaint, ¶11 (alleging that Plaintiff has suffered “wage loss”, “loss of use of property”, “hospital and medical expenses”, “general damage”, “property damage”, and “loss of earning capacity”). The allegations, however, are not dispositive, and the Court turns to the discovery proffered by the moving party in order to determine whether the Plaintiff’s current mental health has been placed in direct controversy in response to discovery questions. See, e.g., Doyle v. Superior Court (1996) 50 Cal. App. 4th 1878, 1881, 1887 (“where a plaintiff alleges that she is not suffering any current mental injury but only that she has suffered emotional distress in the past arising from the defendant's misconduct, a mental examination is unnecessary because such an allegation alone does not place the nature and cause of the plaintiff's current mental condition ‘in controversy.’”)

In support of its motions, Defendant provides deposition testimony by Plaintiff where Plaintiff testifies that he continues to experience Post Traumatic Stress occurrences and depression associated with the underlying incident. Exam Motion, 5:22-6:14; Depo Motion, 5:18-7:7. Defendant argues that by proffering Plaintiff’s current mental injuries as part of the damages sought, Plaintiff has placed his mental health in controversy such that the information is discoverable under the instant circumstances. Plaintiff, in opposition, argues that he has offered a stipulation pursuant to Code of Civ. Proc. §2032.320, such that the Court is required to deny the instant motions, and that Plaintiff’s personal account of his ongoing mental trauma is insufficient to place his mental health in controversy.

Code of Civ. Proc. §2032.320(c) permits a party to stipulate “that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed… [and] that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.” Pursuant to such a stipulation, under subdivision (b), “the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.” Plaintiff additionally relies on Davis v. Superior Court (1992) 7 Cal. App. 4th 1008 to argue that the devastating nature of the underlying injuries make the ‘garden variety’ emotional injuries different from those proffered in the cases cited by Defendant in support of the instant motions.

The Court will begin by noting that “the extent to which a mental component may be in issue in a particular suit depends upon the facts of a particular case.” Davis v. Superior Court supra, 7 Cal. App. 4th at 1016. Here, Defendant has provided testimony by Plaintiff that there exists ongoing and severe emotional distress arising out of the incident in the form of regular episodes of Post Traumatic Stress. Based on this information, the Court must conclude that the emotional injuries proffered by Plaintiff are not the type of ‘garden variety’ injuries that are outside the scope of expert inquiry as they are persistent, ongoing, and distinct from a direct association with the physical injuries that ‘garden variety’ emotional injuries are typically based upon. See Id, at 1015-16 (“We recognize that an allegation of pain and suffering from a physical injury permits a party to recover for a range of emotional injuries. Pain and suffering have included physical pain, fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror and ordeal.”). As such, unless Plaintiff stipulates pursuant to Code of Civ. Proc. §2032.320(c), Defendant is entitled to inquire as to Plaintiff’s emotional injuries.

Plaintiff argues that he has offered to stipulate pursuant to §2032.320(c), making the instant motions improper. The Court has reviewed the proposed stipulation, and finds that it is inadequate to qualify for the exemption from discovery responses under §2032.320(c). The issue, as properly identified by Defendant, is that Plaintiff seeks to retain his right to testify to the “emotional distress over and above that usually associated with the physical injuries claimed” at trial, when subsection (c) requires that such testimony be waived.

Plaintiff may still stipulate to waiver of introducing such evidence prior to the Court issuing the instant order, but unless Plaintiff intends to so stipulate, then Defendant is entitled to inquire as to the emotional injuries Plaintiff is claiming in discovery. Ordinarily, such stipulation must be in haec verba of the code: (c) A stipulation by a party under this subdivision shall include both of the following:

(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.

(2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.

If the stipulation takes some other form, it is the power of defendant to accept or reject the same.

Accordingly, the Court will grant the instant motions.

Sanctions – The Court finds that sanctions are unjustified under the instant circumstances, as Plaintiff had a reasonable, good faith, basis to oppose the instant motions.

---

RULING: below in CAPS.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Lyft, Inc.’s Motions to Compel Further Deposition Reponses and Compel Plaintiff’s Psychological Examination came on regularly for hearing on January 03, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTIONS ARE GRANTED AND SANCTIONS ARE DENIED.

DATE: _______________ _______________________________

JUDGE

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where ARCHER'S VINELAND SERVICE INC. is a litigant

Latest cases where Lyft, Inc. is a litigant