This case was last updated from Los Angeles County Superior Courts on 10/18/2020 at 07:08:29 (UTC).

THE ESTATE OF KEVIN WALSH ET AL VS CA DEPT OF TRANSPORTATION

Case Summary

On 03/02/2017 THE ESTATE OF KEVIN WALSH filed a Personal Injury - Other Personal Injury lawsuit against CA DEPT OF TRANSPORTATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BENNY C. OSORIO, WILLIAM D. STEWART, PATRICIA D. NIETO, GEORGINA T. RIZK, DEBORAH L. CHRISTIAN and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2502

  • Filing Date:

    03/02/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

BENNY C. OSORIO

WILLIAM D. STEWART

PATRICIA D. NIETO

GEORGINA T. RIZK

DEBORAH L. CHRISTIAN

ELAINE LU

 

Party Details

Plaintiffs, Petitioners and Minors

WALSH LAUREN ANNE MARIE

THE ESTATE OF KEVIN WALSH

WALSH ERYN

Defendants and Respondents

CALIFORNIA DEPARTMENT OF TRANSPORTATION

DOES 1 TO 100

STATE OF CALIFORNIA

CALIFORNIA DEPARTMENT OF TRANSPORATION

THE TRAVELERS INDEMNITY COMPANY

Not Classified By Court

LETTEAU ROBERT M. HON.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

IBRAHIM AHMED ESQ

EAGAN AVENATTI LLP

MARCHINO FILIPPO

IBRAHIM AHMED IQBAL

Defendant and Respondent Attorneys

WEISEL ERIC D. DEPUTY ATTORNEY

STATE OF CALIFORNIA DEPUTY ATTORNEY

HANSON JOHN ROBERT

SCHELE DESIRI LILLEAN

WEISEL ERIC DAVID

FOELLMER MACKENZIE CASS

 

Court Documents

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

8/20/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Objection - PLAINTIFFS' OBJECTIONS TO DISCOVERY REFEREE'S RECOMMENDATIONS

9/3/2020: Objection - PLAINTIFFS' OBJECTIONS TO DISCOVERY REFEREE'S RECOMMENDATIONS

Motion to Compel - MOTION TO COMPEL DEFENDANT STATE OF CALIFORNIA, DEPARTMENT OF TRANSPORTATIONS NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF ERYN WALSHS RESPONSES TO DEFENDANT CALTRANS REQUEST FOR

4/30/2020: Motion to Compel - MOTION TO COMPEL DEFENDANT STATE OF CALIFORNIA, DEPARTMENT OF TRANSPORTATIONS NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF ERYN WALSHS RESPONSES TO DEFENDANT CALTRANS REQUEST FOR

Affidavit - AFFIDAVIT STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION'S COMPENDIUM OF EXHIBITS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

11/22/2019: Affidavit - AFFIDAVIT STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION'S COMPENDIUM OF EXHIBITS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Opposition - OPPOSITION TO MOTION TO QUASH SUBPOENA FOR RECORDS FROM ROSALEEN FITZPATRICK, MFT

9/30/2019: Opposition - OPPOSITION TO MOTION TO QUASH SUBPOENA FOR RECORDS FROM ROSALEEN FITZPATRICK, MFT

Reply - REPLY TO PLAINTIFFS OPPOSITION TO MOTION TO COMPEL PLAINTIFF ERYN WALSHS ANSWERS TO DEPOSITION QUESTIONS

12/5/2019: Reply - REPLY TO PLAINTIFFS OPPOSITION TO MOTION TO COMPEL PLAINTIFF ERYN WALSHS ANSWERS TO DEPOSITION QUESTIONS

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO DEEM MSJ NOT FILED AND VAC...)

1/17/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO DEEM MSJ NOT FILED AND VAC...)

Notice of Posting of Jury Fees

1/24/2020: Notice of Posting of Jury Fees

Order - Order On Motion to Bifurcate

3/1/2019: Order - Order On Motion to Bifurcate

Case Management Statement

1/11/2019: Case Management Statement

Case Management Statement -

8/2/2018: Case Management Statement -

THE PEOPLE OF THE STATE OF CALIFORNIA, ACTING BY AND THROUGH THE DEPARTMENT OF TRANSPORTATION'S NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF LAUREN ANNE MARIE WALSH'S FURTHER RESPONSES TO REQUESTS

4/2/2018: THE PEOPLE OF THE STATE OF CALIFORNIA, ACTING BY AND THROUGH THE DEPARTMENT OF TRANSPORTATION'S NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF LAUREN ANNE MARIE WALSH'S FURTHER RESPONSES TO REQUESTS

SEPARATE STATEMENT IN SUPPORT OF THE PEOPLE OF THE STATE OF CALIFORNIA, ACTING BY AND THROUGH THE DEPARTMENT OF TRANSPORTATION'S MOTION TO COMPEL PLAINTIFF THE ESTATE OF KEVIN WALSH?S FURTHER RESPONSE

4/2/2018: SEPARATE STATEMENT IN SUPPORT OF THE PEOPLE OF THE STATE OF CALIFORNIA, ACTING BY AND THROUGH THE DEPARTMENT OF TRANSPORTATION'S MOTION TO COMPEL PLAINTIFF THE ESTATE OF KEVIN WALSH?S FURTHER RESPONSE

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY PI CASE TO AN INDEPENDENT CALENDAR IC COURT

5/1/2018: ORDER TRANSFERRING COMPLICATED PERSONAL INJURY PI CASE TO AN INDEPENDENT CALENDAR IC COURT

DECLARATION OF ERYN WALSH PURSUANT TO CODE OF CIVIL. PROCEDURE SECTION 377.32

3/2/2017: DECLARATION OF ERYN WALSH PURSUANT TO CODE OF CIVIL. PROCEDURE SECTION 377.32

NOTICE OF DEMURRER AND DEMURRER BY DEFENDANT STATE OF CALIFORNIA TO PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF DAVID C. RODRIGUEZ AND ERIC D. WEISE

4/21/2017: NOTICE OF DEMURRER AND DEMURRER BY DEFENDANT STATE OF CALIFORNIA TO PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF DAVID C. RODRIGUEZ AND ERIC D. WEISE

NOTICE OF DEMURRER AND DEMURRER BY DEFENDANT STATE OF CALIFORMA TO PLAINTIFFS' FIRST AMENDED COMPLAINT; ETC.

6/13/2017: NOTICE OF DEMURRER AND DEMURRER BY DEFENDANT STATE OF CALIFORMA TO PLAINTIFFS' FIRST AMENDED COMPLAINT; ETC.

CIVIL DEPOSIT -

7/25/2017: CIVIL DEPOSIT -

185 More Documents Available

 

Docket Entries

  • 07/06/2021
  • Hearing07/06/2021 at 09:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Jury Trial

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  • 07/02/2021
  • Hearing07/02/2021 at 13:30 PM in Department A at 300 East Olive, Burbank, CA 91502; Final Status Conference

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  • 12/10/2020
  • Hearing12/10/2020 at 08:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Hearing on Motion for Summary Judgment

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  • 10/22/2020
  • Hearing10/22/2020 at 13:30 PM in Department A at 300 East Olive, Burbank, CA 91502; Non-Appearance Case Review

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  • 10/22/2020
  • Hearing10/22/2020 at 13:30 PM in Department A at 300 East Olive, Burbank, CA 91502; Hearing on Motion to Compel Deposition

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  • 10/22/2020
  • Hearing10/22/2020 at 13:30 PM in Department A at 300 East Olive, Burbank, CA 91502; Hearing on Motion for Protective Order

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  • 10/22/2020
  • Hearing10/22/2020 at 13:30 PM in Department A at 300 East Olive, Burbank, CA 91502; Fee Waiver Reconsideration Hearing

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  • 10/15/2020
  • Docketat 10:30 AM in Department A, William D. Stewart, Presiding; Fee Waiver Reconsideration Hearing ((IN CAMERA REVIEW of PLAINTIFF'S FINANCIAL DECLARATION)) - Not Held - Continued - Court Congestion

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  • 10/15/2020
  • Docketat 10:30 AM in Department A, William D. Stewart, Presiding; Hearing on Motion for Protective Order (filed by Defendant CA Dept of Transporation) - Not Held - Continued - Court Congestion

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  • 10/15/2020
  • Docketat 10:30 AM in Department A, William D. Stewart, Presiding; Hearing on Motion to Compel Deposition (filed by Plaintiff of Defendants Witnesses, Nevin Q. Sams & Elizabeth Austin) - Not Held - Continued - Court Congestion

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331 More Docket Entries
  • 04/21/2017
  • DocketNOTICE OF DEMURRER AND DEMURRER BY DEFENDANT STATE OF CALIFORNIA TO PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONS OF DAVID C. RODRIGUEZ AND ERIC D. WEISEL

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  • 04/21/2017
  • DocketDefendant's Demurrer; Filed by Attorney for Deft/Respnt

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  • 03/14/2017
  • DocketProof-Service/Summons; Filed by The Estate of Kevin Walsh (Plaintiff)

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  • 03/14/2017
  • DocketProof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

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  • 03/14/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 03/02/2017
  • DocketDECLARATION OF ERYN WALSH PURSUANT TO CODE OF CIVIL. PROCEDURE SECTION 377.32

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  • 03/02/2017
  • DocketComplaint; Filed by The Estate of Kevin Walsh (Plaintiff); The Estate of Kevin Walsh, (Plaintiff); Eryn Walsh (Plaintiff)

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  • 03/02/2017
  • DocketComplaint

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  • 03/02/2017
  • DocketSUMMONS

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  • 03/02/2017
  • DocketCOMPLAINT FOR DAMAGES: 1. WRONGFUL DEATHNEGLIGENCE ;ETC

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Tentative Rulings

Case Number: BC652502    Hearing Date: August 20, 2020    Dept: A

The Superior Court is open under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use LACourtConnect, the court’s remote appearance technology (audio or video)

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.

Dept. A Burbank protocol for LACourtConnect Appearances.

Video Appearances: Since these are the functional equivalent of a personal appearance in court, no special protocols are in place at this time.

Audio Only Appearances.

  1. Argument is limited to three minutes, unless the court grants a request for additional time.

  2. The reading of argument is feckless and nugatory.

  3. State your name at the beginning of all statements.

  4. Do not speak directly to other counsel without permission of court.

  5. Do not interrupt or attempt to speak over another speaker.

  6. Do not announce your presence until called by your name or case name.

  7. Take a deep breath frequently so that the court may interrupt your presentation, if necessary. (The system does not default to the court unless you are placed on mute by the court or go silent or mute on you own.)

Estate of Walsh v Cal-Trans

PENDING DISCOVERY MATTERS

Calendar:

Add-On 1

Case No.:

BC652502

Hearing Date:

August 20, 2020

Action Filed:

March 02, 2017

Trial Date:

July 06, 2021

MP:

Plaintiffs The Estate of Kevin Walsh, by and through Eryn Walsh as successor in interest; Eryn Walsh

RP:

Defendant California Department of Transportation, a public entity

ALLEGATIONS:

The instant action arises from the death of Decedent Kevin Walsh (“Decedent”) on or about March 06, 2016. Plaintiffs Eryn Walsh ("Eryn"), and Lauren Anne Marie Walsh ("Lauren") (and together, “Plaintiffs”) are the heirs and successors in interest to Decedent, and allege that Defendants State of California Department of Transportation (“Caltrans”) and Travelers Indemnity Company (“Travelers” and together the “Defendants”) are responsible for Decedent’s and Plaintiffs’ injuries. Specifically, Plaintiffs allege that Caltrans permitted a dangerous condition to exist on the 134 freeway causing Decedent’s death. Plaintiffs allege that Decedent was traveling on the 134 freeway when his car drove over standing water, causing the vehicle to lose traction and impact a median area on the freeway and an energy attenuator. Additionally, Plaintiffs allege that Travelers improperly and without authorization disposed of Decedent’s vehicle.

Plaintiffs filed their initial Complaint on March 02, 2017, their First Amended Compliant on May 11, 2017, and the operative Second Amended Complaint (“SAC”) on October 25, 2018. The SAC alleges six causes of action sounding in (1) Wrongful Death – Vicarious Liability (against DOT), (2) Survival – Vicarious Liability (against DOT), (3) Wrongful Death – Dangerous Condition of Public Property (against DOT), (4) Survival – Dangerous Condition of Public Property (against DOT), (5) Promissory Estoppel (against Travelers), and (6) Negligent Undertaking (against Travelers).

PRESENTATION:

Plaintiffs filed the instant ex parte application on August 12, 2020, and Caltrans filed an opposition on August 12, 2020. A reply brief has been received by the Court.

RELIEF REQUESTED:

Plaintiffs move for an order compelling the depositions of Nevin Q. Sams and Elizabeth Austin, or, in the alternative, for an expedited hearing and briefing schedule regarding Caltrans' motion for protective order.

DISCUSSION:

Standard of Review

"A request for ex parte relief must be in writing and must include all of the following:

(1)  An application containing the case caption and stating the relief requested;

(2)  A declaration in support of the application making the factual showing required under rule 3.1202(c);

(3)  A declaration based on personal knowledge of the notice given under rule 3.1204;

(4)  A memorandum; and

(5)  A proposed order." (Cal. Rules of Court, Rule 3.1201.)

Pursuant to California Rules of Court, Rule 3.1202(c), "An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte."

Merits

Ex Parte – Plaintiffs contend that the testimony of two of Caltrans' expert witnesses, Nevin Q. Sams and Elizabeth Austin, provide the basis for Caltrans' motion for summary judgment. Plaintiffs argue they will suffer irreparable harm without ex parte relief because they seek to take the depositions of two expert witnesses but Caltrans has refused to produce the experts, and has filed a motion for protective order regarding this matter. Plaintiffs argue ex parte relief is necessary because Caltrans' summary judgment motion is set for hearing on December 10, 2020, with Plaintiffs' opposition due by November 30, 2020, but no date has been set for the protective order motion. Plaintiffs further argue Judge Letteau, the discovery referee, advised the parties of an availability date of September 28, 29, and 30, 2020 for the protective order motion, and that it will take at least another 30 days after Judge Letteau's recommendation to make its way to the Court.

Caltrans argues that Plaintiffs (1) are improperly attempting to circumvent the discovery referee by making its motion to compel declarations by ex parte application; (2) lack good cause because they delayed in filing the motion, as the summary judgment motion was served on November 22, 2019, eight months before the instant ex parte application; and (3) have sufficient time before the summary judgment motion hearing to file a regularly-noticed motion, as Plaintiffs had 119 days from August 13, 2020 to December 10, 2020 to conduct discovery; further, the trial date is set for July of 2021, so Plaintiffs may move to continue the summary judgment motion hearing date if necessary.

On review of the moving papers, the Court finds that Plaintiffs show good cause for relief on an ex parte basis. Discovery motions in the instant case are currently subject to review by discovery referee Judge Letteau, who has given availability regarding the protective order motion for September 28, 29, and 30, 2020. (Decl. Marchino, ¶ 6; Exh. B.) Assuming a hearing date of September 30, 2020, if Plaintiffs are successful in arguing for a denial of the protective order motion, they are left with 57 days to both propound discovery and write an opposition brief for the MSJ. Given that the trial date is set for July 06, 2021, the Court does not find that good cause exists at this time to analyze the motion to compel itself, but that Plaintiffs make a sufficient showing for an expedited protective order hearing.

Additionally, the court appointed a discovery referee in order to reduce the burden on the court of dealing with a juggernaut of a plethora of discovery motions in what should be a relatively simple and straightforward case, based upon the known claims and defenses. Nevertheless, the parties continue to bring disputes, whether valid or invalid, whether done for a legitimate purpose or no inherently necessary purpose, before this court, which again is burdened with these prolix and seemingly unending disputes. Accordingly, no further matters need be referred to the discovery referee, as it simply costs the parties who seem to be determined to dispute the simplest matters. The motion filed 4-30-2020 entitled Notice Of Motion And Motion To Compel Plaintiff Eryn Walsh’s Responses To Defendant Caltrans Request For Production Of Documents (Set Two) will be set at the same time as the matter referred to above. The court notes therein the same deficiency common to 85% of all such motions filed in this court. Specifically, CCP section 2031.310(b)(1) requires the motion to set forth specific facts showing good cause justifying the production for inspection of any document described in the request for production or deposition notice.  In law and motion practice, factual evidence is supplied to the court by way of declarations.  Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224 (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence).  In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production. Subsequently, in Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court identified the manner for establishing good cause under Calcor: “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. The same issue identified in Calcor exists here.  The declaration of the moving party’s attorney does not include any specific facts showing good cause for the inspection of the documents sought in each of the requests for production at issue.  Counsel does not offer any sufficient specific facts regarding the documents sought, the requests for production, or the  disputed facts that are of consequence in the action to explain how the discovery sought will tend to prove or disprove the disputed fact or lead to other evidence that will tend to prove or disprove the fact.  This does not facially appear to comply with the requirements of CCP section 2031.310(b)(1) as set forth in Calcor and Digital Music.

Accordingly, the Court will grant an expedited briefing and hearing schedule for the upcoming protective order hearing and the Motion To Compel Plaintiff Eryn Walsh’s Responses To Defendant Caltrans Request For Production Of Documents (Set Two) If Plaintiffs require more time beyond this relief, they may request a continuance regarding the summary judgment hearing.

---

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

Plaintiffs The Estate of Kevin Walsh, by and through Eryn Walsh as successor in interest and Eryn Walsh's Ex Parte Application to Compel Depositions came on regularly for hearing on August 20, 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 EX PARTE APPLICATION IS GRANTED AS TO THE REQUEST FOR AN EXPEDITED BRIEFING AND HEARING SCHEDULE REGARDING THE PROTECTIVE ORDER MOTION AND THE OTHER MOTIONS MENTIONED HEREIN.

DATE: _______________ _______________________________

JUDGE

ADDITIONALLY, THE COURT APPENDS HERETO ITS INDICATED RULINGS ON THE RECOMMENDATIONS OF THE DISCOVERY REFEREE AND OBJECTIONS THERETO. UPON REQUEST, THESE MATTERS WILL ALSO BE SET FOR HEARING AT THE SAME TIME AS SELECTED FOR THE ABOVE MATTERS. (The court’s attention was brought to the pendency of the objections at a hearing on the morning of July 10. That same afternoon, the court and its staff learned of their exposure to Covid-19, and were in isolation for the following weeks.)

Discovery Referee Recommendations and report

Timely filings of objections/ responses, etc.

Court’s rulings

1/14/2020 Report and recommendations re: motion for order to Extend Time limit of deposition of Eryn Walsh, motion filed by The Travelers Indemnity Company (Defendant). Recommendations: Deny without prejudice. Fee: $1,300.00

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Sign recommendation as is, i.e., no re-allocation. Deny on merits without prejudice.

01/14/2020 Report and Recommendation of Discovery Referee re: Motion to Compel Eryn Walsh's Answers to Deposition Questions filed by Cal-Trans. Recommendations: Grant, Fee: $1,625.00

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Sign recommendation on merits. No re-allocation because referee’s lengthy analysis suggests the points were arguable.

01/14/20 Report and Recommendation of Discovery Referee re: Mtn for Order Compelling Further Responses to Form Interrogatories; Sanctions. Recommendations: Deny (a) and (b); grant (c) and (d), award sanctions against plaintiff and counsel.

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Sign recommendation on merits. No re-allocation because referee’s decision was split and sanctions were awarded.

01/14/20 Report and Recommendation of Discovery Referee re: Mtn for Order Compelling Further Responses to Special Interrogatories. Recommendations: Largely granted, including the obvious issue of verification, award sanctions against plaintiff and counsel.

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Sign recommendation on merits. Re-allocate ½ of $1,625.00 referee fee to plaintiff.

1/16/20 Report and Recommendation of Discovery Referee re: Travelers Indemnity Company's Motion for Order Compelling to Request for Production of Documents (set one); Sanctions Recommendation: Granted in part- no sanctions awarded and none requested in opposition.

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Decline adoption of Referee’s report as this court does not analyze the matter to reach the merits. Deny motion entirely, no sanctions, no reallocation. CCP section 2031.310(b)(1) requires the Plaintiff’s motion to set forth specific facts showing good cause justifying the production for inspection of any document described in the request for production or deposition notice.  In law and motion practice, factual evidence is supplied to the court by way of declarations.  Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224 (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence).  In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production.

Subsequently, in Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court identified the manner for establishing good cause under Calcor: “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.

The same issue identified in Calcor exists here.  The declaration of the moving party’s attorney does not include any specific facts showing good cause for the inspection of the documents sought in each of the requests for production at issue.  Counsel does not offer any sufficient specific facts regarding the documents sought, the requests for production, or the  disputed facts that are of consequence in the action to explain how the discovery sought will tend to prove or disprove the disputed fact or lead to other evidence that will tend to prove or disprove the fact.  This does not comply with the requirements of CCP section 2031.310(b)(1) as set forth in Calcor and Digital Music.

01/14/2020 Report and recommendations of discovery referee re:SDT of MFT records filed by plaintiff. Granted in part – no sanctions

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Sign recommendation on merits. No re-allocation as both sides achieved some of their objectives.

02/24/20 Report and recommendations

02/26/2020 Objection by Plaintiffs' re: Recommendations by Discovery Referee Filed

Overrule plaintiff’s objections entirely. In this court’s view, Judge Letteau’s recommendation was an exercise of the broadest judicial discretion under the circumstances. Court will sign order as extant.

03/04/2020 Recommendations by Discovery Referee re records of Fitzpatrick and Twist Granted in part, with conditions.

No objections found filed

Sign order as extant

Case Number: BC652502    Hearing Date: February 07, 2020    Dept: A

Estate of Walsh v CalTrans

Motion to Quash Subpoena

Calendar:

06

Case No.:

BC652502

Hearing Date:

February 07, 2020

Action Filed:

March 02, 2017

Trial Date:

Not Set

MP:

Plaintiffs Eryn Walsh and Lauren Anne Marie Walsh

RP:

Defendant California Department of Transportation

ALLEGATIONS:

The instant action arises from the death of Decedent Kevin Walsh (“Decedent”) on or about March 06, 2016. Plaintiffs Eryn Walsh, and Lauren Anne Marie Walsh (“Plaintiffs”) are the heirs and successors in interest to Decedent, and allege that Defendants California Department of Transportation (“DOT”) and Travelers Indemnity Company (“Travelers” and together the “Defendants”) are responsible for Decedent’s and Plaintiffs’ injuries. Specifically, Plaintiffs allege that DOT permitted a dangerous condition to exist on the 134 freeway causing Decedent’s death. Plaintiffs allege that Decedent was traveling on the 134 freeway when his car drove over standing water, causing the vehicle to lose traction and impact a median area on the freeway and an energy attenuator. Additionally, Plaintiffs allege that Travelers improperly and without authorization disposed of Decedent’s vehicle.

Plaintiffs filed their initial Complaint on March 02, 2017, their First Amended Compliant on May 11, 2017, and the operative Second Amended Complaint (“SAC”) on October 25, 2018. The SAC alleges six causes of action sounding in (1) Wrongful Death – Vicarious Liability (against DOT), (2) Survival – Vicarious Liability (against DOT), (3) Wrongful Death – Dangerous Condition of Public Property (against DOT), (4) Survival – Dangerous Condition of Public Property (against DOT), (5) Promissory Estoppel (against Travelers), and (6) Negligent Undertaking (against Travelers).

PRESENTATION:

The instant motion was filed by Plaintiffs on November 22, 2019, with opposition filed by DOT on January 27, 2020. No reply has been received.

RELIEF REQUESTED:

Plaintiffs move to quash DOT’s subpoenas for business records from Rosaleen Fitzpatrick, MFT; and Nancy Twist, MFT.

DISCUSSION:

Standard of Review – Quash Subpoena – Code Civ. Proc. §1987.1 grants the trial court authority to quash a subpoena when necessary. Code Civ. Proc. §1987.1 provides, “If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

Plaintiff moves to quash the subpoena on two bases: First, on the grounds that the requests violate Plaintiff’s right to privacy under the California Constitution; and Second, that the requests violate the patient-psychotherapist privilege under Evid. Code §1010 et seq.

Right to Privacy – When privacy is at issue, the information sought by the moving party must have direct relevance to the litigation. This follows from the fact that privacy is accorded, in California, the status of an inalienable right, on a par with defending life and possessing property. California Constitution, Article I, Section I; Vinson v. Superior Court (1987) 43 Cal. 3d 833, 841. Accordingly, it is burden of the party seeking the constitutionally protected information to establish its direct relevance to the litigation, and mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice. Davis v. Superior Court of Kern County (1992) 7 Cal. App. 4th 1008, 1017. Direct relevance, moreover, will not automatically open the door to the information sought; there still remains a careful balancing of the compelling public need for discovery against the fundamental right of privacy. Mendez v. Superior Court (1988) 206 Cal. App. 3d 557, 567. As a result, the courts must balance the rights of civil litigants to discover relevant facts against the privacy interest of the person(s) subject to discovery. Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842. Even where the balance weighs in favor of disclosure of private information, the scope of disclosure will be narrowly circumscribed; such an invasion of the right of privacy “must be drawn with narrow specificity” and is permitted only to the extent necessary for a fair resolution of the lawsuit. Britt v. Superior Court (1978) 125 Cal. App. 3d 844, 856, 859.

DOT contends that the direct relevance of the psychological records arises from Plaintiff’s damages in the loss of consortium claim, and the discovery conducted thus far indicating that Plaintiff and Decedent had engaged in marriage counseling prior to the incident, and that Plaintiff received grief counseling in connection with the incident. By placing Plaintiff’s relationship with Descendent in controversy by seeking loss of consortium damages, DOT argues that any and all information obtained from Plaintiff’s therapists is directly relevant to the ultimate calculation of Plaintiff’s damages. In making its argument, DOT seeks to distinguish Davis v. Superior Court (1992) 7 Cal. App. 4th 1008, and argues that the instant action is factually distinguishable on the grounds that the Davis plaintiff had not alleged a claim for emotional injuries, where here Plaintiff is alleging emotional damages and damages sounding in loss of consortium.

The Court considers that while DOT may have provided a colorable argument as to the direct relevance of the psychological records to the damages alleged by Plaintiff, the other facts of (1) the patient-psychotherapist privilege, (2) the potential availability of other sources of discovery that are not privileged, and (3) the limited nature of the non-economic damages sought by Plaintiff militate against the allowance of the discovery sought under the circumstances. As to the first consideration, the Court notes that Plaintiff, the holder of the privilege under Evid. Code §1014 refuses to permit the disclosure of the communications by and between Plaintiff and their therapists. As to the second consideration, DOT has not indicated what other steps have been taken to discover the information sought about Plaintiff’s prior relationship with Decedent and grief over the loss of Decedent other than seek discovery from Plaintiff and seek the records from Plaintiff’s therapists. Specifically, the Court notes that there is nothing before the Court to indicate that other non-privileged and non-private sourced of information have not been sought to inform DOT about the relationship and grief of Plaintiff prior to resorting to the instant information sought (i.e., other people with knowledge of their relationship, social media accounts, electronic correspondence between Plaintiff and Decedent, et cetera). As to the third consideration, the Court notes that this is not the typical case where psychological records are discovered, as Plaintiff is not claiming any extraordinary non-economic injuries associated with the injury, nor claiming any psychological condition such as PTSD, clinical depression, or similar maladies, but only generalized emotional distress and loss.

Finally, the Court is also persuaded that the broad scope of the discovery sought by DOT indicates that there are no specific injuries that DOT is seeking to test by means of limited discovery into confidential and private information. Rather, the subpoenas appear to be more akin to a random exploration of the most private portions of Plaintiff’s life. Under these conditions, the Court finds that even if DOT has demonstrated the direct relevance of the information sought to the matters being litigated, the balance the rights between DOT’s right to discover relevant facts and Plaintiff’s privacy interest weight much more strongly in favor of Plaintiff’s right to privacy.

Accordingly, the Court will grant the motion to quash.

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RULING: GRANT

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

Plaintiffs Eryn Walsh and Lauren Anne Marie Walsh’s Motion to Quash came on regularly for hearing on February 07, 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 GRANTED.

DATE: _______________ _______________________________

JUDGE