Judge Armen Tamzarian, Case Number: 22STCV13106, Date: 2024-11-14 Tentative Ruling

Judge: Armen Tamzarian, Case: 22STCV13106, Date: 2024-11-14 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 22STCV13106 Hearing Date: November 14, 2024 Dept: 52

Plaintiff Maureen Martinez’s Motion to Compel Further Deposition of Bill Matlock

Plaintiff Maureen Martinez moves to compel deponent Bill Matlock to answer five questions asked at deposition.

Meet and Confer

Defendants Farmers Group, Inc., Farmers Insurance Exchange, Fire Insurance Exchange, Truck Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company (collectively, “Farmers”) argue plaintiff did not meet and confer in good faith before filing this motion as required. A motion to compel answers to deposition questions “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.480, subd. (b).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (§ 2016.040.)

Plaintiff’s motion is not accompanied by the required declaration. The sole declaration in support of this motion is the declaration of plaintiff’s counsel, which states only three things. First, the declaration authenticates and describes portions of the deposition transcript regarding the five subject questions and Farmers’ objections to them. (Gallagher Decl., ¶¶ 1, 2, 4, 5, 6.) Second, it asserts why plaintiff’s counsel believes these questions are appropriate and necessary. (Id., ¶¶ 3, 7.) Third, it asserts plaintiff’s expenses incurred in making the motion. (Id., ¶ 8.) It attests to no attempts to have Matlock answer the five subject questions after Farmers’ counsel instructed him not to answer.

The transcript includes portions showing plaintiff’s counsel’s responses to Farmers’ objections. “A reasonable and good-faith attempt at informal resolution entails something more than bickering with deponent’s counsel at a deposition. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439.) These portions of the transcript show no more than arguing at the deposition. Nothing in the record shows that, before filing this motion, plaintiff gave Farmers any notice that she still wanted the answers to these five questions and planned to file a motion if necessary.

The court will not, however, deny the motion on this basis. Not every failure to meet and confer in good faith “can be categorized as a failure so egregious as to justify summary denial of discovery. Such categorical rulings should be reserved for cases of clear intent to burden or harass, cases of clear flaunting of statutory responsibilities, cases of established track records of lack of good faith, and the like.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434.) The court admonishes plaintiff’s counsel not to file discovery motions without attempting to informally resolve the dispute.

Answers to Questions

Plaintiff shows good cause to require Matlock to answer the five questions Farmers’ counsel instructed him not to answer. “If a deponent fails to answer any question …, the party seeking discovery may move the court for an order compelling that answer.” (Code Civ. Proc., § 2025.480, subd. (a).) Generally, the deponent may avoid answering a question only based on an objection “to protect privileged information from disclosure.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014.) For other objectionable questions, “counsel should not instruct the deponent not to answer … ‘[u]nless the objecting party demands that the taking of the deposition be suspended to permit a motion for a protective order.’ ” (Ibid.)

For these five questions, Farmers did not object based on privilege. Farmers objected that the questions were not reasonably calculated to lead to the discovery of admissible evidence and that they were harassing. Some of these objections are valid. For example, question No.3 asked Matlock, “[W]hat was your involvement in the decision to appoint district managers when you were State Executive Director?” Matlock testified that he was the State Executive Director in “2004 through 2013” (Maile Decl., Ex. A, p. 8:7-8), many years before the actionable events. Plaintiff makes only conclusory arguments that these questions may be relevant to show plaintiff was an employee instead of an independent contractor.

Defendants’ counsel, however, had no right to instruct the witness not to answer. Defendants’ only remedy was to demand to suspend the deposition to seek a protective order. The court admonishes plaintiff’s counsel for asking inappropriate questions. The court admonishes defendants’ counsel for instructing the witness not to testify.

This is another of many examples of how counsel for both sides have acted in an unreasonable, overly aggressive, and discourteous manner in this litigation. The cost of litigation has substantially and unnecessarily increased because of the conduct of the attorneys for plaintiff and Farmers.

Sanctions

Both sides seek monetary sanctions against one another. Farmers’ unsuccessfully opposed this motion but did so with substantial justification. Farmers correctly argued plaintiff failed to meet and confer as required. And though the objections were not a valid basis to instruct the witness not to answer, several of the objections have merit. No sanctions are appropriate.

Disposition

Plaintiff Maureen Martinez’s motion to compel further deposition of Bill Matlock is granted as to compelling answers to the five specified questions.

Defendants Farmers Group, Inc., Farmers Insurance Exchange, Fire Insurance Exchange, Truck Insurance Exchange, Mid-Century Insurance Company, and Farmers New World Life Insurance Company are ordered to make deponent Bill Matlock available to answer the five subject questions no later than December 13, 2024. By November 18, defendants shall propose three dates for the further deposition between November 20 to November 26 or between December 2 and December 13. Plaintiff shall choose one of the three dates defendants propose.

Plaintiff’s counsel shall only ask the five questions included in the separate statement in support of this motion: (1) “What staff is a new agent appointment required to have to get an appointment?”, (2) “And what’s the purpose of your district meetings?”, (3) “And what was your involvement in the decision to appoint district managers when you were State Executive Director?”, (4) “How do you judge your agent's performance?”, and (5) “What’s an agent to do if they can’t afford to hire an employee?”

Defendants’ Motion to Compel Plaintiff’s Attendance at Independent Mental Examination

Good Cause for Mental Examination

Code of Civil Procedure 2032.020 permits discovery via a physical or mental examination of a party when that party’s physical or mental condition “is in controversy in the action.” Someone’s mental condition is in controversy when she seeks damages for “ongoing mental distress.” (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887; accord Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.) “The court shall grant a motion for a physical or mental examination … only for good cause shown.” (Code Civ. Proc., § 2032.320, subd. (a).)

Farmers shows good cause for an independent mental examination of plaintiff. Plaintiff put her mental condition in controversy in this action. She asserts a cause of action for intentional infliction of emotional distress, which requires severe distress. At deposition, plaintiff testified that she currently suffers from panic attacks caused by the events giving rise to this action and takes medication for them. (Maile Decl., Ex. B, pp. 681-682.) Plaintiff’s interrogatory responses also state she “did suffer, and continues to suffer severe and permanent emotional and mental distress and anguish, humiliation, embarrassment, fright, shock, pain, discomfort and anxiety, nervousness, worry, mortification, shock, humiliation, indignity, embarrassment, and apprehension.” (Id., Ex. C.)

Plaintiff’s untimely opposition argues Farmers’ motion is defective because they never served a demand for medical examination. Plaintiff conflates Articles 2 and 3 of Chapter 15 of the Civil Discovery Act. Under Article 2, a defendant in a personal injury action may demand a physical examination of the plaintiff without leave of court. (Code Civ. Proc., § 2032.220, subd. (b).) Farmers’ motion seeks a mental examination under Article 3, which provides that a party seeking discovery via “a mental examination … shall obtain leave of court.” (§ 2032.310, subd. (a).) Farmers was not required to serve a demand before filing this motion. It was, however, required to meet and confer before filing the motion. (Id., subd. (b).)

Plaintiff argues Farmers did not meet and confer as required. Plaintiff relies on the fact that Farmers erroneously attached a meet and confer letter about a different case. (Maile Decl., Ex. E.) Farmers also attached a letter about this case (id., Ex. D) and an email asking whether the plaintiffs in both cases will “agree to submit to an IME with Teri Pokrajac” (id., Ex. F). Farmers made an adequate attempt to informally resolve this dispute.

Place of Examination

Farmers’ motion properly specifies “the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty… of the person… who will perform the examination” as required. (Code Civ. Proc., § 2032.310, subd. (b).)

Farmers does not, however, show good cause for plaintiff to submit to the examination at the specified place. Code of Civil Procedure 2032.320, subd. (e) provides: “If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied: [¶] (1) The court determines that there is good cause for the travel involved. [¶] (2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”

Farmers seeks to have the examination at psychologist Teri M. Pokrajac, Psy.D’s office in Newport Beach. (Pokrajac Decl., ¶ 2.) Plaintiff resides in Santa Barbara, more than 75 miles away. (Gallagher Decl., ¶ 12.) Farmers does not show good cause to require plaintiff to travel more than 75 miles for her mental examination. Farmers’ motion acknowledges, “To the extent that Plaintiff resides more than 75-miles from Dr. Pokrajac’s office, Defendants agree to meet and confer on the location of the IME in order to comply with the requirements of the Code of Civil Procedure.” (Motion, p. 5.)

The court will order plaintiff to submit to a mental examination within 75 miles of her residence. If Dr. Pokrajac is unable to conduct the examination at such a location, the parties must meet and confer on selecting a different psychologist for plaintiff’s independent mental examination.

Disposition

Defendants’ motion to compel plaintiff Maureen Martinez’s attendance at independent mental examination is granted.

Plaintiff Maureen Martinez is ordered to submit to an independent mental examination by psychologist Teri M. Pokrajac, Psy.D. Plaintiff may select any of the following times and dates for which Dr. Pokrajac is available: 10:00 a.m. on November 18, December 5, December 11, or December 12. Defendants shall select a location for the examination within 75 miles of plaintiff’s residence.

The examination will consist of questions about plaintiff’s medical history, prior medical treatment received, and anticipated future medical care. The examination will also include an oral clinical examination about her full past history, demographic details, current complaints for which she might seek care, and the history of her illness including her subjective experience of the events leading to psychological damages. Plaintiff shall submit to tests chosen by Dr. Pokrajac including the MMPI-2 or MMPI-3, TSI-2, MCMI-3 or MCMI-IV, PAI, DES-II, CAPS-5, R-PAS, DES-II, and MMSE-2.

No person other than plaintiff and Dr. Pokrajac and her staff shall be permitted to be present for the examination. Dr. Pokrajac may make an audio recording of the examination.

If Dr. Pokrajac is unable to conduct the examination at a location within 75 miles of plaintiff’s residence, the parties shall meet and confer within 15 days to select a different person to perform the examination.