Judge: Mark E. Windham, Case: 23STCP02960, Date: 2023-12-19 Tentative Ruling

Case Number: 23STCP02960    Hearing Date: December 19, 2023    Dept: 26

Sajche, et al. v. Pacheco, et al.

PETITION TO AUTHORIZE PRE-LAWSUIT DISCOVERY

 (CCP §§ 2035.030)

TENTATIVE RULING:

Petitioners Carlos Sajche, Yerson Alejandro Lemus, and GC Delivery Services, LLC’s etition for Order for Pre-Commencement Discovery is DENIED.

ANALYSIS:

Petitioners Carlos Sajche, Yerson Alejandro Lemus, and GC Delivery Services, LLC (“Petitioners”) filed the instant Petition for Order for Pre-Commencement Discovery against Respondent Edson Omar Pacheco (“Respondent”) on August 15, 2023. The Petition seeks an order authorizing the independent medical examination of Respondent and the subpoena of relevant records. (Pet., ¶1.) The Petition was set to be heard on December 19, 2023, with a court order to Petitioners to give notice to all parties and file proof of service thereof. (Notice of Hearing, 08/15/23.) To date, no proof of service of the notice of hearing, nor response to the Petition, has been filed.

Discussion

The Petition is brought pursuant to Code of Civil Procedure section 2035.010, et seq. Under Code of Civil Procedure section 2035.040, service of the notice of Petition, along with a copy of the Petition itself, “shall be made in the same manner provided for the service of a summons.” (Code Civ. Proc., § 2035.040, subd. (a).) As no proof of service of the notice of Petition has been filed, the Court cannot find that the service requirements have been met and cannot grant the Petition.

Regarding the merits, the moving statute requires that the Petition “set forth all of the following:”

(1) The expectation that the petitioner or the petitioner's successor in interest will be a party to an action cognizable in a court of the State of California.

(2) The present inability of the petitioner and, if applicable, the petitioner's successor in interest, 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. A copy of any written instrument the validity or construction of which may be called into question, or which is connected with the subject matter of the proposed discovery, shall be attached to the petition.

(4) The particular discovery methods described in Section 2035.020 that the petitioner desires to employ.

(5) The facts that the petitioner desires to establish by the proposed discovery.

(6) The reasons for desiring to perpetuate or preserve these facts before an action has been filed.

(7) The name or a description of those whom the petitioner expects to be adverse parties so far as known.

(8) The name and address of those from whom the discovery is to be sought.

(9) The substance of the information expected to be elicited from each of those from whom discovery is being sought.

(Code Civ. Proc., § 2035.030, subd. (b).) The Petition alleges that discovery is sought regarding a rear-end motor vehicle accident between the parties while Respondent was stopped. (Pet., ¶5.) The accident occurred on February 24, 2022 at Sheldon Lane in San Fernando, California. (Ibid.) Petitioners are not able to file an action because they anticipate being defendants in the action, which Respondent has yet to file. (Id. at ¶¶3-4.) Petitioners seek to conduct an independent medical examination of Respondent to establish the nature and extent of Respondent’s claimed injuries, and the reasonableness and necessity of the claimed treatment and causation. (Id. at ¶¶6-7.) Petitioners contend that Respondent’s condition for a claimed traumatic brain injury will be different after he undergoes treatment. (Id. at ¶¶8-9.)

Substantively, the Court finds Petitioners have not shown that these facts and evidence must be preserved by a pre-lawsuit independent medical examination and subpoenas. The facts and evidence regarding Respondent’s condition will be documented through the treatment he elects to receive from his own medical providers. Also, the documents of this treatment Petitioners seek to subpoena will be the same at the time they are created and the time they are obtained through pre-trial discovery.

Conclusion

Based on the foregoing, Petitioners Carlos Sajche, Yerson Alejandro Lemus, and GC Delivery Services, LLC’s etition for Order for Pre-Commencement Discovery is DENIED.

Court clerk to give notice.