Tentative Rulings

Case Number: BC683071    Hearing Date: September 15, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

BACKGROUND

Defendants Austin Butler and Holly Butler (“Defendants”) move to enforce a subpoena served on Deponent Wilker Orthopedic & Spine Institute (“Deponent”). Plaintiff Martin Balmaceda sought treatment from Moshe H. Wilker, M.D. (“Wilker”), a physician in Deponent’s office, in connection with the underlying accident. Defendants previously took Wilker’s deposition but now seek the testimony of Deponent’s Person Most Knowledgeable. The unopposed motion is granted.

LEGAL STANDARD

Code of Civil Procedure section 1987.1 provides, “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, 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 [a party or a witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1.)

DISCUSSION

Defendants have satisfied the applicable requirements for the Court to grant this motion. First, Defendants personally served Deponent with a subpoena for the production of records. Second, Defendants personally served the motion on Deponent as required. (Cal. Rules of Court, rule 3.1346.) Third, Defendants have shown that Deponent failed to comply with the deposition subpoena and produce the documents Defendants sought. Defendants are not required to make a further showing. (See Code Civ. Proc., §§ 1987.1, 2025.480.)

The Court finds that Plaintiff has sufficiently waived the physician-patient privilege to grant this motion. A plaintiff who seeks to recover for personal injuries waives the physician-patient privilege to some extent. (Britt v. Superior Court (1978) 20 Cal.3d 844, 863-864.) Plaintiff has put his injuries at issue in this action. Therefore, Defendants are entitled to issue subpoenas for documents and testimony concerning the treatment of these injuries.

The Court finds no good cause for Deponent to fail to produce a Person Most Knowledgeable. To the extent Deponent contends that the document production is burdensome or unnecessary, it should have filed a motion for protective order or opposed this motion. Deponent did neither.

The Court understands that Wilker objected to appearing for the deposition on the basis that he already sat for deposition. While Defendants deposed Wilker previously, they did so in his individual capacity. Defendants may depose the person most qualified to testify on behalf of Deponent. (Code Civ. Proc., § 2025.610, subd. (c)(1).)

Defendants seek sanctions against Deponent in the amount of $2,820. The Court finds that Deponent’s failure to produce subpoenaed documents and a Person Most Knowledgeable for a deposition without good cause constitutes an abuse of the discovery process warranting sanctions. The Court orders sanctions in the amount of $1,900 based upon eight hours of attorney time at $230 per hour plus one filing fee of $60. However, the Court stays the sanctions order. If Deponent complies with this order, the sanctions order shall be vacated. In other words, Deponent will be excused from paying the sanctions if it complies with this order.

CONCLUSION AND ORDER

Defendants’ motion to compel the testimony of the Person Most Knowledgeable on behalf of Wilker Orthopedic and Spine Institute is granted. The Wilker Orthopedic and Spine Institute shall produce its Person Most Knowledgeable with respect to the topics at issue within thirty (30) days of notice of this order.

The Court orders the Wilker Orthopedic and Spine Institute to pay sanctions to Defendants in the amount of $1,900. However, the Court stays this sanctions order. If the Wilker Orthopedic and Spine Institute complies with this order, the sanctions order shall be vacated.

Defendants shall provide notice and file proof of such with the Court.

DATED: September 15, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC683071    Hearing Date: July 22, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Plaintiff Martin Balmaceda (“Plaintiff”) filed this action against Defendants Austin Butler and Holly Butler (collectively, “Defendants”) following a motor vehicle collision. Defendants owned the vehicle at issue in the collision. Holly Butler’s father, co-defendant Zhicheng Liu, was driving the vehicle involved in the collision. Even though the accident occurred on December 30, 2015, and the complaint was filed on November 9, 2017, Plaintiff still has not served Liu.

On November 4, 2019, Defendants moved for summary judgment on Plaintiff’s complaint for general and motor vehicle negligence. However, Defendants filed evidence with their reply brief, which the Court could not consider at the hearing because Plaintiff has not had an opportunity to respond. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Therefore, the Court continued the hearing on this motion to July 22, 2020, and afforded Plaintiff an opportunity to respond to the new evidence. The Court also continued the trial date to December 2, 2020.

Plaintiff opposes the motion but seeks a continuance to serve and depose Zhicheng Liu, in order to develop evidence in opposition to the motion. Plaintiff’s counsel proffers a declaration detailing Plaintiff’s efforts to do so. This constitutes good cause to continue the hearing on the motion for summary judgment, per Code of Civil Procedure 437c(h). Moreover, pursuant to the Presiding Judge’s order of July 10, 2020, the current trial date must be continued.

Based upon the foregoing, the Court continues the hearing on the motion for summary judgment and advances and vacates the dates for the final status conference and trial, as well as the Order to Show Cause re: Service of Zhicheng Liu and Dismissal. The Court sets the following dates:

Hearing on Motion for Summary Judgment: December 2, 2020, at 1:30 p.m.

OSC re: Service of Zhicheng Liu and Dismissal: December 2, 2020, at 1:30 p.m.

Trial Setting Conference: December 2, 2020, at 1:30 p.m.

In the event that Plaintiff deposes Zhicheng Liu, he may file a supplemental opposition of three (3) pages or less detailing this new evidence. If Plaintiff does so, Defendant may file a supplemental reply brief of three (3) pages or less. Both shall be filed within statutory time periods. The Court’s clerk shall provide notice.

DATED: July 20, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC683071    Hearing Date: January 22, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

BACKGROUND

Plaintiff Martin Balmaceda (“Plaintiff”) filed this action against Defendants Austin Butler and Holly Butler (collectively, “Defendants”) following a motor vehicle collision. Defendants owned the vehicle at issue in the collision. Holly Butler’s father, co-defendant Zhichgeng Liu, was driving the vehicle involved in the collision. Even though the accident occurred on December 30, 2015, and the complaint was filed on November 9, 2017, Plaintiff still has not served Liu. Trial in this matter is set for March 19, 2020. Now, Defendants move for summary judgment on Plaintiff’s complaint for general and motor vehicle negligence. Plaintiff opposes the motion but also seek a continuance to serve Liu. Plaintiff’s request for a continuance is denied, and the motion is granted.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

DISCUSSION

A. Request for Continuance

Plaintiff requests a continuance of the hearing on the motion for summary judgment in order to serve Liu in hopes of deposing him. The request is denied. As an initial matter, trial is set for March 19, 2020, and a motion for summary judgment must be heard at least 30 days before trial, meaning that this motion must be heard on or before February 18, 2020. Plaintiff provides no basis to conclude that Liu will be served and/or deposed in the next four weeks. Plaintiff has not sought a trial continuance, and it is not appropriate to seek affirmative relief in an opposition. Regardless, the Court denies any request for a trial continuance. The accident in this case occurred on December 30, 2015, and the complaint was filed on November 8, 2017. To date, the case is over two years old. There is no good cause for a continuance. Indeed, the Trial Court Delay Reduction Act recommends that all unlimited civil cases be disposed of within 24 months. (California Rules of Court, Standard 2.2: Trial Court Disposition Time Goals.) While there are cases in which that is not possible, this case is a relatively straightforward car accident case. There is no basis for a trial continuance. Therefore, Plaintiff’s request for a continuance of the hearing on this motion, and any request for a continuance of the trial date, is denied.

B. Motion for Summary Judgment

Plaintiff’s theory of the case is that Defendants negligently entrusted the vehicle to Liu, who was involved in the accident. To state a cause of action for negligent entrustment against Defendants, Plaintiff must prove that: (1) Liu negligently operated a vehicle owned by Defendants; (2) Defendants knew or should have known that Liu was incompetent or unfit to drive the vehicle; (3) Defendants permitted Liu to use the vehicle anyway; and (4) Liu’s incompetence or unfitness harmed Plaintiff. (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-864.)

Defendants rely on a declaration from Austin Butler stating that he is not the registered owner of the vehicle. (Declaration of Austin Butler, ¶ 1.) Austin Butler also states that he did not give Liu permission to drive the vehicle. (Declaration of Austin Butler, ¶ 2.)

Defendants rely on a declaration from Holly Butler. Holly Butler states that she permitted Liu to drive the vehicle only when Holly was present as a passenger when Liu was preparing to take his driving test to obtain a driver’s license. (Declaration of Holly Butler, ¶ 2.) Holly Butler states that she moved to Puerto Rico shortly before the accident and left the vehicle at Liu’s house before she relocated, but did not authorize him to use the vehicle except to take his driving test. (Id., ¶ 5.) Holly Butler states that she made arrangements for Liu’s neighbor to drive him to his driving test in the vehicle. (Id., ¶ 6.) Holly Butler states that Liu was licensed in China prior to relocating to the United States, and she was not aware that he had any prior traffic collisions or even citations. (Id., ¶ 8.)

This evidence is sufficient to satisfy Defendants’ prima facie burden and shift the burden to Plaintiff to proffer sufficient evidence to give rise to a triable issue. In opposition, Plaintiff proffers a repair estimate from Defendants’ insurer, which lists Austin Butler as the owner of the vehicle at issue. (Plaintiff’s Supporting Evidence in Opposition to Defendants’ Motion for Summary Judgment, Exhibit 6.) Regardless, Plaintiff proffers no evidence that either Austin or Holly Butler permitted Liu to drive the car. Nor does Plaintiff proffer any evidence that Austin or Holly Butler knew that Liu was incompetent or unfit to drive the vehicle. The mere lack of a driver’s license is prima facie evidence of incompetence. (Standt v. Cannon (1938) 29 Cal.App.2d 509, 517.)

CONCLUSION AND ORDER

Defendants’ motion for summary judgment is granted with respect to Austin and Holly Butler. The Court vacates the trial date and sets an Order to Show Cause re: Service of Zhichgeng Liu for December 9, 2020, at 8:30 a.m. Defendants shall provide notice and file proof of such with the Court.

DATED: January 22, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court