THUY TRANG THI NGUYEN ET AL VS MICHELLE D TAYLOR ET AL

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Introduction and Procedural Background

On January 10, 2017, plaintiffs Thuy Trang¿Thi¿Nguyen (“Plaintiff”), Kaitlin¿Nguyen, by and through her guardian ad litem Thuy Trang¿Thi¿Nguyen, and Tyler Nguyen (collectively, “Plaintiffs”) filed this action against defendants Michelle D. Taylor, City of Los Angeles Transit Services, Los Angeles County Metropolitan Transportation Authority.¿ Plaintiff Thuy Trang¿Thi¿Nguyen was involved in an automobile collision with a bus operated by MV Transportation, Inc. (named as Doe 1), driven by MV employee, Michelle Taylor.¿¿¿¿

Trial is currently set for March 30, 2021.  Defendants have two upcoming motions on calendar: a Motion to Compel Plaintiff to Submit to Additional Medical Examinations (set for hearing on June 30, 2021) and a Motion to Compel Plaintiff’s Deposition (set for hearing on August 2, 2021) (collectively, the “Motions”).  Defendants seek a request to have these Motions heard earlier on March 8, 2021 and for an order continuing the trial to May 11, 2021.  

Alternatively, Defendants request the Court continue trial to September 21, 2021 in order to allow the Motions to be heard on the dates as currently set.  

Legal Standard

A party seeking a continuance of the date set for trial must make the request for a continuance by a noticed motion or an ex parte application as soon as reasonably practical once the necessity for the continuance is discovered.  (Cal. Rules of Court, Rule 3.1332(b).)  The request for continuance may be granted on an affirmative showing of good cause.  (Cal. Rules of Court, Rule 3.1332.)

Discussion

Defendants claim that upon learning of Plaintiff’s neurological and neuropsychological injury claims in November 2019, Defendants requested that Plaintiff stipulate to attend multiple medical examinations.  However, Plaintiffs’ counsel objected each time and according to Defendant, “never provided a definitive response.”  (Motion, 2:16-23.)  Therefore, Defendants filed a motion to compel Plaintiff’s attendance at additional medical examinations on December 4, 2020.  

Defendants also claim that they were only recently informed on December 3, 2020 that Plaintiff underwent additional surgery (a permanent spinal cord stimulator implant) on November 23, 2020.  Defendants also claim that treatment records from Dr. Harris Fisk and Dr. Falke, who are previously unidentified medical providers, were produced on December 29, 2020, which changed Defendants’ understanding of Plaintiff’s claimed injuries.  Also, Defendants state Plaintiff had previously not made any claim of a head injury but was now diagnosed with “close head trauma with post concussive syndrome” and undergone a brain MRI.  These discoveries, Defendants contend, require a second deposition of Plaintiff.  While Defendants noticed the second deposition of Plaintiff on December 4, 2020, Plaintiff objected.  Thus, Defendants filed a motion to compel on January 4, 2020.  

In opposition, Plaintiffs remind the Court that Defendants are asking for a seventh trial continuance.  Plaintiffs argue that Defendants were not diligent in seeking the additional medical examinations.  Plaintiffs also argue that Defendants had knowledge of the spinal cord stimulator implant as early in June 2020 because: (1) Dr. Loder, Plaintiff’s pain management specialist, noted that this treatment was being considered; (2) Dr. Mobin also recommended this treatment and (3) Plaintiff had made efforts to get this treatment.  Furthermore, Plaintiff argues she will be continually undergoing medical procedures and surgeries, and that the spinal cord stimulator implant procedure is not so remarkable as to allow additional discovery.  Plaintiffs also argue that the hearing dates for the Motions should not be advanced because the parties are currently in the middle of expert discovery.  

The Court recognizes that trial in this matter has been repeatedly delayed. However, Defendants’ request for a continuance has merit.  Plaintiff does not address when it was first disclosed that she was claiming a head injury.  Plaintiff also does not address why her medical providers, Dr. Fisk and Dr. Falke, were not previously identified.  Therefore, Defendants’ Motion for a continuance is granted and the hearing dates for the Motion to Compel Additional Medical Examinations and Motion to Compel Deposition are advanced to March 19, 2021 at 1:30 p.m.  The trial date is continued from March 31, 2021 to May 11, 2021 at 8:00 a.m.  All witnesses and experts are to be informed of the new trial date.  No further continuances should be expected.  

Moving party to give notice.

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

Dated this 2nd day of March 2021

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On January 10, 2017, plaintiffs Thuy Trang¿Thi¿Nguyen (“Plaintiff”), Kaitlin¿Nguyen, by and through her guardian ad litem Thuy Trang¿Thi¿Nguyen, and Tyler Nguyen (collectively, “Plaintiffs”) filed this action against defendants Michelle D. Taylor (“Taylor”), City of Los Angeles Transit Services, Los Angeles County Metropolitan Transportation Authority.¿ Plaintiff Thuy Trang¿Thi¿Nguyen was involved in an automobile collision with a bus operated by MV Transportation, Inc. (named as Doe 1) and driven by Taylor, MV’s employee.¿¿¿

Plaintiff moves for an order compelling further responses from Taylor to Demands for Production, Set Two.  Counsel’s declaration does not state whether an informal discovery conference (“IDC”) has been held to address the issues raised in this Motion.  Accordingly, Plaintiff’s¿Motion to Compel is premature and will be continued to a new date as set forth below.¿ The parties are ordered to participate in an IDC as required by the¿Court’s First Amended Standing Order Re: PI Court Procedures (2/24/20), which is available on the LA Superior Court’s website, under the Personal Injury section.¿¿¿

The hearing on the MTFC is continued to¿February 5, 2020¿at 10:00 a.m. in Department¿27¿of the Spring Street Courthouse.¿ Moving Party is ordered to use the online reservation management system to schedule an IDC, which must go forward per the terms set forth in the¿2/24/20¿Standing Order.¿ The IDC must be scheduled at least two weeks prior to the continued hearing date on the MTCFs.¿¿¿

If the above date is not convenient for the parties and/or an IDC cannot be scheduled, for whatever reason, within the necessary time period, Moving Party must use the online reservation system to promptly continue the hearing on the motion to a date at least two weeks after the IDC.¿¿¿

The Court also notes that there are currently 12 motions to compel further discovery responses on calendar and only one informal discovery conference (“IDC”) scheduled for January 7, 2021.  The Court orders the moving party to submit a tabbed binder containing the moving, opposing, and reply papers for each motion to be heard.  Each binder must contain 

a table of contents along with a column identifying the date each motion was filed, the discovery at issue in the motion, and the date the IDC addressing those issues was conducted.  The binders for each motion must be lodged with the Court no later than 3 days before the hearing date.  Failure to provide a binder will result in the hearing being continued.  

Moving party to give notice.

15th day of December 2020

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On January 10, 2017, plaintiffs Thuy Trang¿Thi¿Nguyen (“Plaintiff”), Kaitlin¿Nguyen, by and through her guardian ad litem Thuy Trang¿Thi¿Nguyen, and Tyler Nguyen (collectively, “Plaintiffs”) filed this action against defendants Michelle D. Taylor, City of Los Angeles Transit Services, Los Angeles County Metropolitan Transportation Authority.¿ Plaintiff Thuy Trang¿Thi¿Nguyen was involved in an automobile collision with a bus operated by MV Transportation, Inc. (named as Doe 1), driven by MV employee, Michelle Taylor.¿¿¿

On November 8, 2019, the Honorable Laura A. Seigle issued a minute order permitting the deposition of the person most qualified (“PMQ”) at Fardad Mobin, M.D.’s (“Dr. Mobin”) office on the topics of policies and procedures concerning medical code billing, negotiating charges, collection of payments, charges and practices, .  Dr. Mobin is Plaintiff’s treating physician as well as a retained expert. Mobin has also been identified by Plaintiff’s as the PMQ.

However, the deposition has not occurred because Plaintiff’s counsel insists on having Defendants pay a witness fee of $1,500 per hour and an additional $750 for a videotaped deposition.  No individual on behalf Dr. Mobin’s office (let alone Dr. Mobin, as the identified PMQ) has appeared for deposition even though Defendants have served three notices of deposition and deposition subpoenas.  Defendants now move to compel the deposition of the PMQ for Dr. Mobin’s office on the policies and procedures for medical billing and negotiating medical bills, negotiating medical treatment charges, collection of payment, medical-legal billing and negotiation of medical-legal billing, and lien reductions.  (Defs.’ Ex. E.)

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

Pursuant to California Code of Civil Procedure section 2020.230, a deponent is entitled to witness fees and mileage required by Government Code section 68070, et seq.  (Code Civ. Proc. § 2020.230.)  This payment shall be made either at the time of service of the deposition subpoena or at the time the deponent attends for the taking of testimony.  (Ibid.)  This fee is $35 a day with mileage actually traveled, both ways, $0.20 a mile.  (Gov’t Code § 68093.)  

However, Plaintiff argues in opposition that Code of Civil Procedure section 2034.430 should apply when setting Dr. Mobin’s witness fee.  Section 2034.430 requires the deposing counsel to pay the expert’s “reasonable and customary hourly or daily fee” if the witness is a “treating physician and surgeon or other treating health care practitioner who is to be asked during the deposition to express opinion testimony, including opinion or factual testimony regarding the past or present diagnosis or prognosis made by the practitioner or the reasons for a particular treatment decision made by the practitioner, but not including testimony requiring only the reading of words and symbols contained in the relevant medical record or, if those words and symbols are not legible to the deponent, the approximation by the deponent of what those words or symbols are.” (Code Civ. Proc. § 2034.430.)  

Plaintiff contends that Dr. Mobin’s deposition testimony regarding his office’s billing practices necessarily involves testimony about the treatment decisions he made, which renders him an expert witness entitled to an expert witness fee.  (Opp. 1:21-27.)  This is not persuasive.  Section 2034.430 requires expert fees to be paid for testimony about the reasoning behind treatment decisions, not reasoning for medical coding/billing.  Medical billing practices do not require Dr. Mobin (if he is indeed the PMQ for his office’s billing practices) to testify about the reasoning behind his treatment decisions, but his office’s decision to bill or code that after the treatment has been provided.  Similarly, the other remaining topics on collections and negotiating charges do not inquire about a physician’s medical reasons for treating a patient a particular way.  They are issues regarding the financial operations of a physician’s office.  

Accordingly, Defendants’ Motion is GRANTED.  The PMQ of Dr. Mobin’s office on Topics 1-9 identified in the Third Amended Notice of Deposition and Deposition Subpoena is ordered to appear for deposition within 20 days of the date of this Order.   The PMQ will be paid a witness fee of $35 a day with mileage actually traveled, both ways, $0.20 a mile, as provided by Government Code section 68093.

As the Motion is granted, Plaintiff’s request for sanctions is DENIED. 

Moving party to give notice.

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

Dated this 29th day of October 2020

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Thuy Trang Thi Nguyen (“Plaintiff”) seeks an order compelling a further response from defendants City of Los Angeles (“City”) and MV Transportation (collectively, “Defendants”).  

At issue are identical requests for admission (“RFA”) propounded by Plaintiff to Defendants; specifically, RFA Nos. 18-19, 21-22, 27-28, and 30-31 to City and RFA Nos. 51-52, 54-55, 60-61, and 63-64 to MV Transportation.  Defendants share the same counsel and the responses at issue are substantively identical as well.  Defendants did not file an opposition.

California Code of Civil Procedure section 2033.290 allows a party to move for an order compelling a further response to requests for admission if that party deems that an answer is evasive or incomplete, or an objection is without merit or too general.  Plaintiff argues further responses to these RFAs are necessary because Defendants’ responses are not “unqualified admissions.” argues Defendants answer “leaves open the door for them to argue that Plaintiffs, who are not third parties, were at fault for the collision.”  However, responses to RFAs need only be an admission, a denial, or a statement claiming inability to admit or deny.  (Code Civ. Proc. § 2033.220, subd. (b).)  If an admission, each answer shall “[a]dmit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.” (Code Civ. Proc. § 20333.220, subd. (b)(1).) DENIED. 

Moving party to give notice.

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

Dated this 3rd day of September 2020

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Personnel documents and information, communicated to an employer in confidence

are covered by the employee’s constitutional right of privacy. Board of Trustees v. Superior

Court (1981) 119 Cal. App. 3d 516, 524-26; see also Harding Lawson Assocs. v. Superior

Court (1992) 10 Cal. App. 4th 7, 10 [holding that personnel files are protected by the right

of privacy unless the requesting party shows a compelling need for the particular documents

and that the information cannot reasonably be obtained through depositions or from

nonconfidential sources].) 

Taylor worked at Transportation Concepts one year before being hired by MV and six years before the collision.  Plaintiff alleges Taylor’s employment records should be produced because she received 20 hours of classroom training by Transportation Concepts to become licensed to drive a bus.  According to Plaintiffs, Taylor’s driving record is relevant to outstanding issues involving the “force of impact” for the collision and her records may establish a repeated pattern of inattentive driving.  Plaintiffs also contend the records are relevant to whether Taylor was trained to operate passenger buses or whether City and MV entrusted the bus to Taylor knowing she was unfit.  

First, plaintiff does not sufficiently explain how employment records could be reasonably calculated to lead to the discovery of admissible evidence regarding the force of impact for any collision.  

Second, a broad request for employment records is not reasonably calculated to lead to the discovery of admissible evidence regarding MV’s knowledge of Taylor’s fitness as a bus driver, especially when MV has already admitted vicarious liability.

Third, the only documents from Transportation Concepts that could be relevant to this action would be documents relating to classroom and behind-the-wheel training Taylor mentioned in deposition.  However, Plaintiffs do not show why additional evidence beyond her deposition testimony is necessary.  

Accordingly, the Court GRANTS the Motion and the subpoena to Transportation Concepts is QUASHED.  

Subpoena to USC Center for Spinal Surgery

Dr. Mark Spoonamore is an expert retained by Defendants to testify at trial.  Dr. Spoonamore also conducted the defense medical examination of plaintiff Nguyen on June 25, 2019.  On March 18, 2020, Plaintiff served a deposition subpoena on Defendants’ retained expert’s office, USC Center for Spinal Surgery.  Defendant moves to quash the subpoena on the grounds that it is a premature request for expert discovery and seeks impermissible discovery.  Defendant also states the subpoena is harassing and seeks monetary sanctions. 

The deposition subpoena seeks to take the deposition of the person most knowledgeable/qualified from USC Center for Spinal Surgery.  The PMK topics relate to medical billing practices, expert retention practices, and the defense medical examination of Plaintiff.  The subpoena also lists 9 categories of documents for production.  

Categories of Testimony

Plaintiff seeks to depose the PMK for USC Center Spinal Surgery on the following topics: (1) policies and procedures for medical billing, (2) policies and procedures for negotiating medical treatment charges, (3) policies and procedures for collection of payment for medical treatment, (4) policies and procedures for medical-legal billing, (5) policies and procedures for negotiating medical-legal bills, (6) policies and procedures for reduction in lien amounts, (7) policies and procedures for negotiating medical bills, (8) policies and procedures for acceptance of full and final payment figures of medical treatment, (9) policies and procedures regarding the retention of Mark Spoonamore, M.D. as an expert witness, and (10) the defense medical examination performed by Dr. Spoonamore of Nguyen. 

Dr. Spoonamore is a retained expert and also the doctor who conducted the defense medical examination of Nguyen.  Code of Civil Procedure section 2032.610 directs the production of the report made by the medical examiner for the defense medical examination.  It also waives the work product protection only for “the examiner’s writings and reports and to the taking of the examiner’s testimony.”  Defendants do not contest that Dr. Spoonamore’s report and Dr. Spoonamore’s testimony regarding the exam are discoverable, but challenge whether Dr. Spoonamore’s office should be compelled to testify on topics outside of the medical examination.  

The Court agrees with Defendants.  Dr. Spoonamore did not treat Plaintiff or bill Plaintiff.  Dr. Spoonamore has no percipient knowledge of Plaintiff.  To the extent Plaintiffs seek to depose Dr. Spoonamore and his office for information outside of the defense medical examination, such as billing practices or expert retention, that constitutes expert discovery that is only permitted “following receipt of an expert witness list from a party.”  (Code Civ. Proc. § 2034.410.)  If Plaintiff seeks to depose Dr. Spoonamore about the defense medical examination, Plaintiff should serve Dr. Spoonamore with a deposition subpoena, not his office.  

Requests for Production

Defendants submitted a separate statement explaining why each request for production in the Subpoena is improper.  Plaintiffs did not submit an opposing separate statement responding to Defendants’ arguments and did not explain how their requests for production to Dr. Spoonamore’s office (who neither treated nor billed Nguyen) were proper or was not expert discovery.  Plaintiffs’ references to the Court’s November 8, 2019 are unpersuasive and disingenuous.  

Accordingly, the Court GRANTS Defendants’ Motion and the subpoena is quashed. 

Monetary Sanctions

The court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.  (Code Civ. Proc., § 1987.2, subd. (a).)  

The Court finds the Motions were opposed in bad faith and without substantial justification.  Thus, the Court imposes monetary sanctions on Plaintiffs and counsel of record, jointly and severally, in the amount of $1,520.00, consisting of 8 hours of defense counsel’s hourly rate of $175.00 and $120.00 in filing fees, to be paid within twenty (20) days of the date of this Order. 

Moving party to give notice.

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

Dated this 11th day of August 2020