Judge: Joseph Lipner, Case: 24STCP02183, Date: 2024-09-05 Tentative Ruling

Case Number: 24STCP02183    Hearing Date: September 5, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Petitioner Pepe’s Inc. (“Petitioner”) applies for an order granting leave to conduct certain discovery to preserve evidence relating to the medical records and employment records of Respondent Martin Alejandro Bernal Garcia (“Respondent”).

The Court DENIES the petition.

Background

Petitioner expects to be a defendant in an action relating to an automobile collision (the “Incident”)  that occurred on December 23, 2023. Petitioner expects Respondent to be the adverse party in the litigation. Petitioner’s interest in the expected action is its defense as the owner of a vehicle allegedly involved in the Incident. Petitioner bases these expectations on a December 26, 2023 letter of representation that Los Angeles Legal Solutions issued to Petitioner’s insurer on Respondent’s behalf.

Petitioner’s counsel has attempted to meet and confer with Respondent’s counsel seeking information about the nature of Respondent’s injuries and the scope and cost of medical treatment. Respondent’s counsel only replied that Respondent was still treating his injuries. Petitioner has also requested that Respondent provide a Medical Release Form/Authorization that Petitioner’s counsel could use to obtain the relevant medical records. Respondent’s counsel did not provide an authorization form.

Petitioner filed this petition on July 9, 2024. Respondent filed an opposition on August 22, 2024. Petitioner filed a reply on August 28, 2024.

Legal Standard

“One who expects to be a party or expects a successor in interest to be a party to an action that may be cognizable in a court of the state, whether as a plaintiff, or as a defendant, or in any other capacity, may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), for the purpose of perpetuating that person's own testimony or that of another natural person or organization, or of preserving evidence for use in the event an action is subsequently filed.” (Code Civ. Proc., § 2035.010.)

Discovery methods available in these cases include oral and written depositions, inspection of documents, things, and places, and physical and mental examinations. (Code Civ. Proc., § 2035.020.) 

A petition under this chapter must be verified and filed in the superior court of the county where at least one adverse party resides. (Code Civ. Proc., § 2035.030, subd. (a) [emphasis added].) The petition must also include all of the following (1) the expectation that the petitioner will be a party to an action cognizable in this state; (2) petitioner’s present inability either to bring that action or to cause it to be brought; (3) the subject matter of the expected action and the petitioner’s involvement and must attach a copy of any written instrument connected to the litigation; (4) the particular methods the petition seeks to employ; (5) the facts the petitioner wishes to establish by engaging in discovery under this section; (6) the reasons for desiring to perpetuate testimony or preserve evidence before an action has been filed; (7) the name or description of those the petitioner expects to be adverse parties; (8) the name and address of those from whom discovery is sought; and (9) the substance of the information expected to be elicited from each of those from whom discovery is sought. (Code Civ. Proc., § 2035.030, subd. (b).)  

Service of this petition must be made in the same manner as service of summons on each person named in the petition as an expected adverse party. (Code Civ. Proc., § 2035.040, subd. (a).)  

“If the Court determines that all of part of the discovery requested under this chapter may prevent a failure or delay of justice, it shall make an order authorizing that discovery.” (Code Civ. Proc., § 2035.050, subd. (a).) “The order shall identify any witnesses whose deposition may be taken, and any documents, things, or places that may be inspected, and any person whose physical or mental condition may be examined.” (Code Civ. Proc., § 2035.050, subd. (b).)  

Discussion

            Petitioner seeks to employ the following discovery methods to preserve evidence in anticipation of Respondent filing a lawsuit: physical examinations of Respondent and inspections of documents, things, and places, including document production demands propounded onto Respondent and subpoenas to Respondent’s medical providers as they become known.

            Petitioner seeks to obtain all medical, billing, and radiology records relating to Respondent’s injury claims arising out of the Incident from Plaintiff’s medical providers. Petitioner does not know the identities of Plaintiff’s medical providers and does not explain how it intends to find them.

            Petitioner seeks to subpoena records form Respondent’s employers. Petitioner seeks to obtain employment records, pay stubs, and related information connected to Respondent’s anticipated claim for loss of earnings.

            Petitioner seeks to subject Respondent to a physical examination in order to discovery Respondent’s injuries, current status, and future medical needs.

            Petitioner has not provided adequate reasons for desiring to perpetuate testimony or preserve evidence before an action has been filed. Petitioner argues that “because it is unclear who Respondent’s employers and medical providers are or if they have policies that would result in the destruction of records (evidence) after a given time.” (Petition at p. 8:27-28.) However, the State of California requires that medical records be retained for a minimum of 7 years (Cal. Code Regs., tit. 22, § 72543, subd. (a)) and that employment records, including payroll records, be retained for at least 3 years. (Lab. Code, § 1174.) Both of these periods exceed the statute of limitations for an action for personal injuries, which is 2 years. (Code Civ. Proc., § 335.1.) Thus, if Respondent files an action for personal injuries arising out of the Incident, Petitioner will have at least one year to obtain Respondent’s pay records and at least five years to obtain medical records before the earliest date that it is legal for the record holders to destroy these records.

            Petitioner argues that Respondent’s medical condition may change if Respondent undergoes any invasive medical treatment. However, Respondent’s medical condition would necessarily be reflected in the medical records produced by any such treatment. Petitioner has not explained why this case uniquely requires that the potential plaintiff to be examined by the potential defendant before undergoing any treatment following the incident.

            The Court therefore finds that the discovery sought is not necessary to prevent a failure or delay of justice.

            The Court denies the petition.