Judge: Cary Nishimoto, Case: BC667775, Date: 2023-03-10 Tentative Ruling

BRENDA BARNES AND PETER NAUGHTON vs JEFFREY ELLIOT BOYER, ETC. ET AL. BC667775

Plaintiffs’ motion to set aside default re: defendants’ motion to dismiss; plaintiffs’ written opposition to defendants’ motion to dismiss; and plaintiffs’ motion to vacate judgment. Hearing date 3.10.2023, Department SWE. The hearing date of 3.16.2023 is advanced to this date for reasons stated hereinbelow. Plaintiffs’ motions are moot, having been heard and ruled upon previously. To the extent that they are not moot, they are denied.

 

This case arises from a multivehicle traffic accident on July 13, 2016, at the intersection of Jefferson and Culver Boulevard in Los Angeles. Plaintiff Barnes and her husband filed a complaint on July 7, 2023. Plaintiff Barnes is seeking emotional distress etc., as a result of witnessing the fatal accident. Plaintiff Naughton’s claim is for loss of consortium. The matter was assigned for trial to Department Southwest SWE in Torrance on November 28, 2022, and motions in limine were heard and ruled on November 29, 2022. At the close of the hearing, the court found no merit in plaintiffs’ case and ordered defendants to give notice and move for dismissal of the action within 5 days. Defendant’s motion to dismiss was calendared for January 23, 2023. On December 2, 2022, defendants filed a motion to dismiss with prejudice. On December 12, plaintiffs filed a motion for reconsideration of the court’s rulings on motions in limine, admitting therein that they were aware of the November 29, 2022, court order that the defendants file a motion to dismiss within five days. Defendants filed written opposition to the motion for reconsideration, contending that the ruling on motions in limine were dispositive of plaintiffs’ case.

 

Because defendant’s motion to dismiss was calendared for January 23, 2023, plaintiff’s written opposition was due no later than January 11, 2023, but plaintiffs failed to file opposition. On January 21, 2023, defendants filed a notice of non-opposition to defendants’ motion to dismiss. On January 17, 2023, plaintiffs filed a reply to defendants’ opposition to plaintiff’s motion for reconsideration. On the hearing date of January 23, 2023, the court heard and denied all of plaintiffs’ motions for reconsideration of rulings and plaintiffs’ opposition to the motion to dismiss. The court found that the motion for reconsideration presented no new facts, circumstance or law and that no valid excuse was presented to justify plaintiffs’ series of motions all of which made the same allegations based on the same information.

 

By January 3, 2023, the five-year statute for bringing cases to trial had expired i.e. 5 years plus an additional six months for Covid related delays. No valid justification for the delay has ever been presented.

 

There are no motions properly calendared for hearing today on plaintiffs’ papers.

 

Should a court of higher jurisdiction identify issues not addressed by this court’s findings and Orders or otherwise disagree with this court’s rulings, the court finds as set forth hereinbelow.

 

Plaintiffs’ notice of motion and motion for relief from default from defendants’ motion to dismiss. This motion is based on “mistake, inadvertence, surprise, and excusable neglect.” Plaintiffs’ motion also includes plaintiff’s opposition to defendants’ motion to dismiss, which opposition was filed concurrently with this motion for relief from default and is based on plaintiff’s alleged “meritorious procedural and substantive bases for denial of the motion to dismiss”. These matters have been ruled upon despite plaintiffs’ filing of documents containing the same arguments and contentions.

 

After defendants filed a demand for exchange of expert witnesses, plaintiffs failed to file a designation of experts pursuant to CCP §2034 et. cet. Several months after the statutory deadline for a responsive designation expired, plaintiffs filed a defective and insufficient designation of experts, lacking information concerning the experts. Plaintiffs never moved to have their defective and untimely designation declared effective. Not having properly designated experts, timely or at all, plaintiffs had no admissible damages. CCP §2034.300.

 

Furthermore, the sole expert untimely designated to testify about Barnes’ severe psychological injuries was a psychologist who treated plaintiff Barnes in northern California, from the time of the accident in question through the time of trial. That psychologist turned out to be Barnes’s brother. Whether or not Barnes’ psychologist brother William Powers was properly licensed at all relevant times, the defective expert designation precludes him from testifying. Barnes admitted during one of many duplicative hearings that she had been traveling for weekly therapy sessions to the psychologist’s northern California residence from Los Angeles. Requiring patients to come to his residence in northern California appears to be part of the requirements of the Board of Psychology during a period when he was not actually licensed. However, as previously stated, Powers declaration testifies that he never complied with the Psychology Board’s requirements for providing therapy.  As such, Powers’ declaration is not admissible evidence. Beyond that, the only other expert that plaintiffs’ attempted to have testify, Dr. Veronica Thomas, was invalidly and improperly designated. Dr. Thomas was not retained and was not designated as a treating psychologist but plaintiffs’ intended only that Dr. Thomas express an opinion as to the value of psychology charges of Barnes’ brother who was not entitled to charge for unlicensed therapy. Not having been timely or properly designated, not having been retained or hired as a treating psychologist, this second psychologist Dr. Veronica Thomas was not entitled to testify in this case to anything relevant. This had been ruled on previously during the hearing on motions in limine.

 

Defendants have filed an opposition to plaintiff’s motion for relief from default as well as opposition to plaintiffs’ opposition to defendants’ motion to dismiss. Therein defendants cite the court’s previous rulings on all matters raised by plaintiffs.

 

Plaintiffs are explicitly seeking relief from a judgment, dismissal, order, or proceeding under the mandatory provisions of CCP §473(b) for “mistake, inadvertence, surprise, or neglect.” However, CCP §473(b) provides that “[a]pplications seeking relief under this section must be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” The word excusable is not used in this provision in the mandatory language at the end of CCP §473(b). Luri v Greenwald (2003) 107 Cal.App. 4th 1119, 1124. “The purpose of this provision ‘was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.” Zamora v Clayborn Contracting Group, In. (2002) 28 Cal.4th 249, 257. Neither does CCP §473 assist plaintiff since it begins by a showing “excusable” neglect by an attorney which is imputed on the client. There is nothing “excusable” about plaintiffs’ failure to prosecute this case diligently or timely. Plaintiffs’ claim ignorance of any motion to dismiss or entry of default although all of it was on the court’s website.

 

Plaintiffs’ motion to set aside and vacate judgment pursuant to CCP §§663 et. seq., must be and is denied. Plaintiffs’ motions are redundant, offer no insight or new or different facts, law or circumstances to warrant any further hearing on the matters.

On January 25, 2023, the court made findings and rulings on plaintiffs’ motions for reconsideration and plaintiffs’ opposition to the defendants’ motion to dismiss. Plaintiffs’ motion for reconsideration of the rulings on motions in limine were heard, argued and denied, plaintiffs not having presented new facts, law or circumstances and further that the court had already ruled on those issues. Plaintiffs’ motions before the court simply repeating the same arguments and contentions previously found invalid. There are no motions properly pending hearing to which plaintiffs’ motion or opposition papers are relevant.

The plaintiffs argue that the rulings on Motions in Limine were not consistent with facts. This argument has been argued by plaintiffs several times. Plaintiff Barnes’ contends that ‘severe emotional distress’, as set forth in CACI 1620, can be established without expert testimony. Knutson v Foster (Fourth District - 2018) 25 Cal.App.5th 1075, 1079. Knutson found at HN7 CA (6) that “[t]estimony of an expert witness is required when the subject ‘matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” Citing Evid. Code §801, subd. (a). Plaintiff Barnes’ emotional distress, by her own admission, involves voluntary and involuntary institutionalization based on suicidal tendencies or attempts. Plaintiff concedes having had therapy in Mexico for relief of severe distress. This is qualitatively and substantially different from the distress found in Knutson where the court found that plaintiff’s emotional distress naturally arose from the betrayal by her coach and her lawyer, which ended her professional career. Knutson stated at page 1099:

“We note that HN8 there may be certain cases where testimony of an expert [***41]  witness would be necessary to support all or part of an emotional distress damages claim. For example, expert testimony would be required to the extent a plaintiff's damages are alleged to have arisen from a psychiatric or psychological disorder caused or made worse by a defendant's actions and the subject matter is beyond common experience. We are not addressing such a case here. In the Knutson case, the emotional distress damages arose from feelings of anxiety, pressure, betrayal, shock, and fear of others, of which Knutson herself could and did testify. Expert testimony was not required.” (Emphasis added).

Plaintiffs’ reliance on their erroneous expert designation is not valid or reasonable. CCP §2034.300. Plaintiffs contend that defendants were aware of the identity of plaintiffs’ expert psychologist three years prior to trial. That argument fails because plaintiffs have not shown by substantial evidence that their sole psychologist listed for the damages portion of the trial had a license to practice psychology throughout the pendency of this litigation. Plaintiffs’ expert psychologist William Powers is Barnes’ brother. Notwithstanding that plaintiffs have not established that Powers had been licensed during plaintiff Barnes’ therapy sessions, plaintiffs are not entitled to have expert testimony on damages at trial based on the failure to file a valid designation of experts.

Despite the court’s prior rulings, William Powers submitted a declaration in support of plaintiffs’ various motions for reconsideration, which declaration is evasive, confusing, vague, conclusory and consists of hearsay, and ultimately raises more questions than it answers. Powers states that in 2002, he surrendered his license for three years but never testified that his license was restored. Powers testifies that he was told by the Psychology Board that “if I paid the $69,000.00 the Psychology Board claimed to have spent investigating me, I could get my license back, and that if I wanted to counsel people in the meantime, all I needed was a business license in the location where I did so, if I had people come to a location for counseling.” Powers’ declaration finishes by stating, “I HAVE NEVER DONE EITHER”. There is no definition provided for “Counseling” as distinguished from licensed psychotherapy.

The Powers’ declaration is short on admissible evidence. He does not competently establish or even explicitly state that the Psychology Board reinstated his license to conduct licensed psychotherapy or if it did, when or how that happened. Where is the declaration of the Psychology Board or government documentation to support plaintiffs’ contentions? Powers states that he was allowed to conduct therapy but only at his home and only if he had a local business license although he was not licensed by the State Board. Mr. Powers explicitly fails to testify that the state licensing board in fact reinstated his license. His declaration does not constitute a competent statement from the relevant government agency reinstating his license during any part of the relevant period of time following the accident. Plaintiffs erroneously also contend that the reasonableness of Mr. Powers therapy charges can be testified to by Dr. Veronica Thomas, another psychologist expert who also was improperly and untimely designated by plaintiffs.

Aside from the invalid expert designation, Dr. Thomas was not retained, nor was she listed as a treating psychologist. Hence there is no valid basis for Dr. Thomas to testify as to the reasonableness of Mr. Powers’ therapy and charges since there is insufficient evidence that he was even properly licensed at all relevant times. Without expert opinion, plaintiff Barnes thus has no valid evidence of severe emotional distress. There is no expert to testify that plaintiff Barnes’ “severe” emotional distress was qualitatively genuine, that it was caused by this accident and that it was not just a continuation of plaintiff’s pre-accident mental state. Plaintiff stated during litigation years after the accident that she did not intend to bring a claim for emotional distress. There also is Barnes’ admission during the motions in limine hearing that the alleged emotional distress damages preexisted this accident and merely continued thereafter.

Plaintiffs contend that there is property damage remaining in issue. At the motions in limine hearing, plaintiff had no expert, no repair order, no repair invoice to present for trial. The car was never repaired. There is no expert to testify as to the diminished value of the car six to seven years post-accident. There are no issues remaining for trial in this case.

Negligence without damages may not continue for trial.

Brenda Barnes and Peter Naughton

11901 Santa Monica Blvd., #701

Los Angeles, Ca 90025

 

Attorney Elizabeth C. Tingen

Law Firm of MacDonald & Cody, LLP

28 Executive Park, 3rd Floor

Irvine, CA 92614

 

Attorney Amy E. Volk

Law Offices of Beth M. Henderson

P.O. Box 64093

St. Paul, MN 55164-0093

 

 



Case Number: BC667775    Hearing Date: March 10, 2023    Dept: SWE

BRENDA BARNES AND PETER NAUGHTON vs JEFFREY ELLIOT BOYER, ETC. ET AL. BC667775

Plaintiffs’ motion to set aside default re: defendants’ motion to dismiss; plaintiffs’ written opposition to defendants’ motion to dismiss; and plaintiffs’ motion to vacate judgment. Hearing date 3.10.2023, Department SWE. The hearing date of 3.16.2023 is advanced to this date for reasons stated hereinbelow. Plaintiffs’ motions are moot, having been heard and ruled upon previously. To the extent that they are not moot, they are denied.

 

This case arises from a multivehicle traffic accident on July 13, 2016, at the intersection of Jefferson and Culver Boulevard in Los Angeles. Plaintiff Barnes and her husband filed a complaint on July 7, 2023. Plaintiff Barnes is seeking emotional distress etc., as a result of witnessing the fatal accident. Plaintiff Naughton’s claim is for loss of consortium. The matter was assigned for trial to Department Southwest SWE in Torrance on November 28, 2022, and motions in limine were heard and ruled on November 29, 2022. At the close of the hearing, the court found no merit in plaintiffs’ case and ordered defendants to give notice and move for dismissal of the action within 5 days. Defendant’s motion to dismiss was calendared for January 23, 2023. On December 2, 2022, defendants filed a motion to dismiss with prejudice. On December 12, plaintiffs filed a motion for reconsideration of the court’s rulings on motions in limine, admitting therein that they were aware of the November 29, 2022, court order that the defendants file a motion to dismiss within five days. Defendants filed written opposition to the motion for reconsideration, contending that the ruling on motions in limine were dispositive of plaintiffs’ case.

 

Because defendant’s motion to dismiss was calendared for January 23, 2023, plaintiff’s written opposition was due no later than January 11, 2023, but plaintiffs failed to file opposition. On January 21, 2023, defendants filed a notice of non-opposition to defendants’ motion to dismiss. On January 17, 2023, plaintiffs filed a reply to defendants’ opposition to plaintiff’s motion for reconsideration. On the hearing date of January 23, 2023, the court heard and denied all of plaintiffs’ motions for reconsideration of rulings and plaintiffs’ opposition to the motion to dismiss. The court found that the motion for reconsideration presented no new facts, circumstance or law and that no valid excuse was presented to justify plaintiffs’ series of motions all of which made the same allegations based on the same information.

 

By January 3, 2023, the five-year statute for bringing cases to trial had expired i.e. 5 years plus an additional six months for Covid related delays. No valid justification for the delay has ever been presented.

 

There are no motions properly calendared for hearing today on plaintiffs’ papers.

 

Should a court of higher jurisdiction identify issues not addressed by this court’s findings and Orders or otherwise disagree with this court’s rulings, the court finds as set forth hereinbelow.

 

Plaintiffs’ notice of motion and motion for relief from default from defendants’ motion to dismiss. This motion is based on “mistake, inadvertence, surprise, and excusable neglect.” Plaintiffs’ motion also includes plaintiff’s opposition to defendants’ motion to dismiss, which opposition was filed concurrently with this motion for relief from default and is based on plaintiff’s alleged “meritorious procedural and substantive bases for denial of the motion to dismiss”. These matters have been ruled upon despite plaintiffs’ filing of documents containing the same arguments and contentions.

 

After defendants filed a demand for exchange of expert witnesses, plaintiffs failed to file a designation of experts pursuant to CCP §2034 et. cet. Several months after the statutory deadline for a responsive designation expired, plaintiffs filed a defective and insufficient designation of experts, lacking information concerning the experts. Plaintiffs never moved to have their defective and untimely designation declared effective. Not having properly designated experts, timely or at all, plaintiffs had no admissible damages. CCP §2034.300.

 

Furthermore, the sole expert untimely designated to testify about Barnes’ severe psychological injuries was a psychologist who treated plaintiff Barnes in northern California, from the time of the accident in question through the time of trial. That psychologist turned out to be Barnes’s brother. Whether or not Barnes’ psychologist brother William Powers was properly licensed at all relevant times, the defective expert designation precludes him from testifying. Barnes admitted during one of many duplicative hearings that she had been traveling for weekly therapy sessions to the psychologist’s northern California residence from Los Angeles. Requiring patients to come to his residence in northern California appears to be part of the requirements of the Board of Psychology during a period when he was not actually licensed. However, as previously stated, Powers declaration testifies that he never complied with the Psychology Board’s requirements for providing therapy.  As such, Powers’ declaration is not admissible evidence. Beyond that, the only other expert that plaintiffs’ attempted to have testify, Dr. Veronica Thomas, was invalidly and improperly designated. Dr. Thomas was not retained and was not designated as a treating psychologist but plaintiffs’ intended only that Dr. Thomas express an opinion as to the value of psychology charges of Barnes’ brother who was not entitled to charge for unlicensed therapy. Not having been timely or properly designated, not having been retained or hired as a treating psychologist, this second psychologist Dr. Veronica Thomas was not entitled to testify in this case to anything relevant. This had been ruled on previously during the hearing on motions in limine.

 

Defendants have filed an opposition to plaintiff’s motion for relief from default as well as opposition to plaintiffs’ opposition to defendants’ motion to dismiss. Therein defendants cite the court’s previous rulings on all matters raised by plaintiffs.

 

Plaintiffs are explicitly seeking relief from a judgment, dismissal, order, or proceeding under the mandatory provisions of CCP §473(b) for “mistake, inadvertence, surprise, or neglect.” However, CCP §473(b) provides that “[a]pplications seeking relief under this section must be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” The word excusable is not used in this provision in the mandatory language at the end of CCP §473(b). Luri v Greenwald (2003) 107 Cal.App. 4th 1119, 1124. “The purpose of this provision ‘was to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys.” Zamora v Clayborn Contracting Group, In. (2002) 28 Cal.4th 249, 257. Neither does CCP §473 assist plaintiff since it begins by a showing “excusable” neglect by an attorney which is imputed on the client. There is nothing “excusable” about plaintiffs’ failure to prosecute this case diligently or timely. Plaintiffs’ claim ignorance of any motion to dismiss or entry of default although all of it was on the court’s website.

 

Plaintiffs’ motion to set aside and vacate judgment pursuant to CCP §§663 et. seq., must be and is denied. Plaintiffs’ motions are redundant, offer no insight or new or different facts, law or circumstances to warrant any further hearing on the matters.

On January 25, 2023, the court made findings and rulings on plaintiffs’ motions for reconsideration and plaintiffs’ opposition to the defendants’ motion to dismiss. Plaintiffs’ motion for reconsideration of the rulings on motions in limine were heard, argued and denied, plaintiffs not having presented new facts, law or circumstances and further that the court had already ruled on those issues. Plaintiffs’ motions before the court simply repeating the same arguments and contentions previously found invalid. There are no motions properly pending hearing to which plaintiffs’ motion or opposition papers are relevant.

The plaintiffs argue that the rulings on Motions in Limine were not consistent with facts. This argument has been argued by plaintiffs several times. Plaintiff Barnes’ contends that ‘severe emotional distress’, as set forth in CACI 1620, can be established without expert testimony. Knutson v Foster (Fourth District - 2018) 25 Cal.App.5th 1075, 1079. Knutson found at HN7 CA (6) that “[t]estimony of an expert witness is required when the subject ‘matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” Citing Evid. Code §801, subd. (a). Plaintiff Barnes’ emotional distress, by her own admission, involves voluntary and involuntary institutionalization based on suicidal tendencies or attempts. Plaintiff concedes having had therapy in Mexico for relief of severe distress. This is qualitatively and substantially different from the distress found in Knutson where the court found that plaintiff’s emotional distress naturally arose from the betrayal by her coach and her lawyer, which ended her professional career. Knutson stated at page 1099:

“We note that HN8 there may be certain cases where testimony of an expert [***41]  witness would be necessary to support all or part of an emotional distress damages claim. For example, expert testimony would be required to the extent a plaintiff's damages are alleged to have arisen from a psychiatric or psychological disorder caused or made worse by a defendant's actions and the subject matter is beyond common experience. We are not addressing such a case here. In the Knutson case, the emotional distress damages arose from feelings of anxiety, pressure, betrayal, shock, and fear of others, of which Knutson herself could and did testify. Expert testimony was not required.” (Emphasis added).

Plaintiffs’ reliance on their erroneous expert designation is not valid or reasonable. CCP §2034.300. Plaintiffs contend that defendants were aware of the identity of plaintiffs’ expert psychologist three years prior to trial. That argument fails because plaintiffs have not shown by substantial evidence that their sole psychologist listed for the damages portion of the trial had a license to practice psychology throughout the pendency of this litigation. Plaintiffs’ expert psychologist William Powers is Barnes’ brother. Notwithstanding that plaintiffs have not established that Powers had been licensed during plaintiff Barnes’ therapy sessions, plaintiffs are not entitled to have expert testimony on damages at trial based on the failure to file a valid designation of experts.

Despite the court’s prior rulings, William Powers submitted a declaration in support of plaintiffs’ various motions for reconsideration, which declaration is evasive, confusing, vague, conclusory and consists of hearsay, and ultimately raises more questions than it answers. Powers states that in 2002, he surrendered his license for three years but never testified that his license was restored. Powers testifies that he was told by the Psychology Board that “if I paid the $69,000.00 the Psychology Board claimed to have spent investigating me, I could get my license back, and that if I wanted to counsel people in the meantime, all I needed was a business license in the location where I did so, if I had people come to a location for counseling.” Powers’ declaration finishes by stating, “I HAVE NEVER DONE EITHER”. There is no definition provided for “Counseling” as distinguished from licensed psychotherapy.

The Powers’ declaration is short on admissible evidence. He does not competently establish or even explicitly state that the Psychology Board reinstated his license to conduct licensed psychotherapy or if it did, when or how that happened. Where is the declaration of the Psychology Board or government documentation to support plaintiffs’ contentions? Powers states that he was allowed to conduct therapy but only at his home and only if he had a local business license although he was not licensed by the State Board. Mr. Powers explicitly fails to testify that the state licensing board in fact reinstated his license. His declaration does not constitute a competent statement from the relevant government agency reinstating his license during any part of the relevant period of time following the accident. Plaintiffs erroneously also contend that the reasonableness of Mr. Powers therapy charges can be testified to by Dr. Veronica Thomas, another psychologist expert who also was improperly and untimely designated by plaintiffs.

Aside from the invalid expert designation, Dr. Thomas was not retained, nor was she listed as a treating psychologist. Hence there is no valid basis for Dr. Thomas to testify as to the reasonableness of Mr. Powers’ therapy and charges since there is insufficient evidence that he was even properly licensed at all relevant times. Without expert opinion, plaintiff Barnes thus has no valid evidence of severe emotional distress. There is no expert to testify that plaintiff Barnes’ “severe” emotional distress was qualitatively genuine, that it was caused by this accident and that it was not just a continuation of plaintiff’s pre-accident mental state. Plaintiff stated during litigation years after the accident that she did not intend to bring a claim for emotional distress. There also is Barnes’ admission during the motions in limine hearing that the alleged emotional distress damages preexisted this accident and merely continued thereafter.

Plaintiffs contend that there is property damage remaining in issue. At the motions in limine hearing, plaintiff had no expert, no repair order, no repair invoice to present for trial. The car was never repaired. There is no expert to testify as to the diminished value of the car six to seven years post-accident. There are no issues remaining for trial in this case.

Negligence without damages may not continue for trial.

Brenda Barnes and Peter Naughton

11901 Santa Monica Blvd., #701

Los Angeles, Ca 90025

 

Attorney Elizabeth C. Tingen

Law Firm of MacDonald & Cody, LLP

28 Executive Park, 3rd Floor

Irvine, CA 92614

 

Attorney Amy E. Volk

Law Offices of Beth M. Henderson

P.O. Box 64093

St. Paul, MN 55164-0093