Judge: Cary Nishimoto, Case: BC667775, Date: 2023-01-25 Tentative Ruling

Case Number: BC667775    Hearing Date: January 25, 2023    Dept: SWE

 BRENDA BARNES, PETER NAUGHTEN vs JEFFREY ELLIOT BOYER, DAVID THARP, RHONDA THARP  BC667775

PLAINTIFFS BRENDA BARNES & PETER NAUGHTEN

Self Represented Litigants

11901 Santa Monica Blvd #701

L.A., CA 90025

DEFENDANTS JEFFRREY ELLIOT BOYER, DAVID THARP, RHONDA THARP

ATTORNEY ELIZABETH C. TINGEN

MacDonald & Cody LLP

28 Executive Park, Third Fl.

Irvine, CA 92614

*Motion of defendants JEFFRREY ELLIOT BOYER, DAVID THARP, RHONDA THARP for dismissal with prejudice and *Motion of plaintiffs BRENDA BARNES & PETER NAUGHTEN for reconsideration.

The COMPLAINT in this matter was filed 7.17.2017.  This matter was assigned for trial to Department SWE on Monday, November 28, 2022. FIRST APPEARANCE:  1:30 November 28, 2022.

Complaint Allegations: Motor vehicle personal injury accident on July 13, 2015, at the intersection of Culver and Jefferson, Los Angeles. A motorcyclist (who is not involved in this case, died in the collision), struck the vehicle driven by Jeffrey Boyer in the intersection. Boyer was driving a vehicle owned by defendants David Tharp and Rhonda Tharp and with their permission. Boyer was working for On Board Entertainment. Then the Boyer vehicle hit Brenda Barnes vehicle. Plaintiff Brenda Barnes claims emotional distress arising from this accident. Her husband, plaintiff Peter Naughten, is suing for loss of consortium. Plaintiff Barnes contends Boyer made a turn in violation of VC §281801a. Plaintiff Barnes is claiming general damages, no physical injuries. The complaint was filed 7.17.2017.

According to 2018 answers to interrogatories, Barnes said no physical injuries, just emotional distress. Boyer was southbound Culver Blvd, made a left turn onto Jefferson Blvd, collided with Marc Schachter’s motorcycle, which was northbound Culver Blvd. Plaintiff Barnes was stopped on Jefferson waiting for green light.

On MARCH 22, 2019, plaintiff Barnes’ executed a WRITTEN STIPULATION UNDER CCP §2032.320(c) currently and for all future dates indicating that no claim for mental and emotional distress over and above that usually associated with the physical injuries claimed, of which were none as of 12/31/2018. No expert testimony re: usual mental and emotional distress will be presented in support of the claim for damages. Plaintiff makes no claim for any future medical or psychological health costs of any kind related to the car collision or its aftermath and will make no such claim in the future. oEven if plaintiff is considered a direct victim, the type of psychological damages described by plaintiff are not the type that typically arise from a car crash. Plaintiff admits that she was unable to drive away from the accident scene due to paralyzing anxiety. Plaintiff is talking about several years of psychological therapy, interspersed with psychiatric institutionalization in Mexico, and attempts at suicide. All of which resulted in plaintiff Barnes not being able to attend court hearings on multiple occasions. According to plaintiff Naughten at the motion in limine hearings, when assigned for trial in November of 2022, plaintiff was disabled while confined during hospice treatment during the course of this litigation. This was the first notice of plaintiff’s reason for non-appearance at hearings.

Barnes’ psychological problems preexisted this accident as Barnes admitted during motions in limine. The plaintiffs did not timely respond to Defendants’ CCP §2034 demand for designation of experts. Eventually, and very untimely, plaintiffs did file a document entitled expert designation although without pertinent expert information. Plaintiffs never made a motion to have the untimely expert designation considered effective.

Also, plaintiff’s expert psychologist William Powers, Ph.D is her brother who lives in Northern California. Plaintiff said she drove to his home for her therapy treatments. This treatment started from the date of the accident and continued until the date assigned for trial.  Not only was there no timely designation of experts by plaintiffs, Barnes’ expert psychologist (her brother William Powers) had his license to practice psychology suspended shortly after the accident in question. Therefore, not only does plaintiff not have a timely designation of experts, her expert is not qualified to render an opinion’s about plaintiff’s psychological distress arising from the accident.

Also, because there are or was no timely or effective designation of experts, plaintiffs’ second expert psychologist Veronica Thomas, Ph.D also in not permitted to testify. Thomas, per Barnes, was hired to opine as to the reasonable and necessary counseling and cost of Powers’ charges. Thomas was not designated as plaintiffs’ expert. Thomas, described as non-retained and a non-treater, also is not qualified or entitled to render an of opinion regarding plaintiff’s psychological treatment from an unauthorized prescriber, and not being retained was not entitled to render any opinions, including those of whether the non-licensed brother’s psychological charges are reasonable and necessary.

This litigation was assigned for trial five weeks before expiration of five years post filing of this action (July 7, 2017) under CCP §583.410(a). Plaintiff Barnes’ psychological history includes feelings of despair so intense that suicide was contemplated on more than one occasion. Barnes’ emotional distress included headache, anxiety, PTSD, severe depression, flashbacks, loss of enjoyment and quality of life, insomnia, right, nervousness, embarrassment, apprehension, terrors, inconvenience and grief. That is not the type of ordinary general damages arising from a no-physical injury but a serious mental instability requiring expert testimony to substantiate.

Due to plaintiff’s failure to designate made experts, timely or appropriately, plaintiff Barnes is unable to establish the reasonable value of her psychological damages based on expert testimony. Bermudez v Ciolek (2015) 237 Cal.App.4th 1311 and Pebley v Santa Clara Organics, LLC (2018) 22 Cal.App.5^th 1266.

According To Defendants’ Written Opposition plaintiffs are seeking reconsideration of the ruling on defendants’ motion to dismiss, although the court has not ruled on it. CCP §1008(a), (b). At the time of the hearing on all motions in limine, plaintiff continued to make the same arguments and the same representations over and over, despite the court having ruled on the motions. When it was apparent to the court that there were no new and different arguments from plaintiffs, the court made rulings in plaintiffs’ and defendants’ presence. The court then got off the bench and the litigation concluded with the court ordering defendants to file a motion to dismiss.

Plaintiff has not indicated new facts, law or circumstances to warrant the reconsideration of the motions in limine. Accordingly, plaintiffs’ motion for reconsideration is denied.

This action is well beyond the five year statute including the extra six months delay for Covid considerations. Plaintiffs have delayed in this litigation for the entire five years without current explanations and continue to make the same arguments and representations over and over without justification or substantiation. For the same reasons as set forth hereinabove, defendants’ motion to dismiss is granted.