Judge: Stephen Morgan, Case: 22AVCP00131, Date: 2022-08-18 Tentative Ruling

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Case Number: 22AVCP00131    Hearing Date: August 18, 2022    Dept: A14

Background

 

This is a petition to preserve evidence in a potential personal injury action. Petitioner Gloria Zupo (“Petitioner”) presents that on or about May 05, 2021, at the intersection of 4th Street East and Avenue Q-7 in Palmdale, California, a two-vehicle auto collision occurred. Petitioner alleges that she was attempting to make a left turn at the intersection with Respondent Abigail Gomez (“Respondent”)’s vehicle struck Petitioner’s vehicle on the driver side door. This incident shall hereinafter be referred to as “the Collision.” Petitioner further alleges that the Collision caused her injuries.

 

On June 03, 2022, Petitioner filed her Verified Petition. However, the notice of hearing was missing the date and time of the hearing.

 

On June 09, 2022, a new notice was filed regarding the motion on the Petition for Order Permitting pre-commencement discovery.

 

The Court notes that on July 29, 2022, two new documents were filed in the case: (1) a proof of service dated June 30, 2022 for the Verified Petition of Gloria Zupo for Order for Pre-Commencement Discovery, [Proposed] Order, Memorandum of Points and Verified Petition of Gloria Zupo for Order Re: Pre-Commencement Discovery, Memorandum of Points and Authorities in Support of Verified Petition of Gloria Zupo for Order Re: Pre-Commencement Discovery, Notice of Hearing on Verified Petition of Gloria Zupo for Order Permitting Pre-Commencement Discovery-2, Civil Case Cover Sheet, and Civil Case Cover Sheet Addendum; and (2) a Summons directed to Respondent, generated by the Court on July 29, 2022. For the purposes of notice for this particular motion, it appears that Respondent has been notified of the hearing as of June 30, 2022. 

 

No Opposition has been filed. All opposition papers must be filed and served at least nine court days before the hearing. (Cal. Code Civ. Proc. § 1005(b).) The hearing for this matter is set for August 18, 2022. As such, an Opposition was due on August 05, 2022. Should an Opposition be filed, it is now untimely.

 

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Analysis

 

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 . . . 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.” (Cal. Code Civ. Proc. § 2035.010(a).) “One shall not employ the procedures of this chapter for purposes of either ascertaining the possible existence of a cause of action or a defense to it, or of identifying those who might be made parties to an action not yet filed.” (Cal. Code Civ. Proc. § 2035.010(b).)

 

“One who desires to perpetuate testimony or preserve evidence for the purposes set forth in Section 2035.010 shall file a verified petition in the superior court of the county of the residence of at least one expected adverse party, or, if no expected adverse party is a resident of the State of California, in the superior court of a county where the action or proceeding may be filed.” (Cal. Code Civ. Proc. § 2035.030(a).) “The petition shall be titled in the name of the one who desires the perpetuation of testimony or the preservation of evidence. The petition shall 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.

 

(Cal. Code Civ. Proc. § 2035.030(b)(1)-(9).)

 

“The petition shall request the court to enter an order authorizing the petitioner to engage in discovery by the described methods for the purpose of perpetuating the described testimony or preserving the described evidence.” (Cal. Code Civ. Proc. § 2035.030(c).) Cal. Code Civ. Proc. § 2035.020 provides, as follows: “The methods available for discovery conducted for the purposes set forth in Section 2035.010 are all of the following: (a) Oral and written depositions. (b) Inspections of documents, things, and places. (c) Physical and mental examinations.”

 

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Discussion

 

Application – Petitioner seeks an order permitting discovery in the form of production of the electronically stored information held on the event data recorder (“EDR”) located in the vehicle operated by Respondent at the time of the collision.

 

Petitioner complied with Cal. Code Civ. Proc. § 2035.030(a)-(b).[1]

 

Petitioner filed the Verified Petition on June 03, 2022 and notice for the hearing on the motion was served on June 09, 2022. Petitioner has satisfied the notice requirement. (See Cal. Code Civ. Proc. § 2035.040(c) [at least 20-days’ notice from the date specified in the notice for the hearing on the petition].) Petitioner was a driver involved in the Collision, sustained injuries, and expects to be a party to the subsequent action as either a Plaintiff and/or Defendant. (Memo., 2:20-21; Petition ¶ 3.) Petitioner presents that she, as a Plaintiff, is unable to file the action at this time because she is under treatment for the injuries she sustained in the Collision and the full extent of her damages are unknown at this time and is not the proper party to bring claims should she be a Defendant or Cross Defendant. (Id., 2:21-23; Petition ¶ 4.) Petitioner describes the subject matter as concerning the Collision. (Petition, ¶ 5.) Petitioner expects that an action will be filed by Petitioner or Abigail Gomez against each other arising out of the circumstances and events as heretofore described. (Id., ¶ 10.)

 

Petitioner desires to employ pre-commencement discovery in the form inspection of documents, things or places, to obtain the electronically stored information found in the EDR located in the vehicle driven by Gomez at the time of the Collision. (Id., ¶ 6.) Petitioner hopes that the EDR will elicit:

 

 

(Id., ¶ 7.)

 

Petitioner wants to use the aforementioned information to establish the following facts:

 

 

(Id., ¶ 8.)

 

Petitioner seeks to preserve such evidence prior to the filing of an action as the information stored in the EDR or the EDR itself could be deleted, lost, or otherwise destroyed before a subsequent action is filed. (Id., ¶ 8.)

 

Petitioner satisfies the requirements of Cal. Code Civ. Proc. § 2035.030(b)(7)-(8) by presenting the following:

 

11. The name and address of the person(s) from whom the pre-lawsuit discovery is sought is as follows: a. Abigail Gomez, 515 N Avenue 50, Los Angeles, CA 90042 12.

 

(Id., ¶ 11.)

 

The Petition includes a verification page with Petitioner’s declaration and signature. (Id., Verification.)

 

Based on the foregoing, the Verified Petition is GRANTED.

 

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Conclusion

 

Petitioner Gloria Zupo’s Petition for Order Permitting Pre-Commencement Discovery is GRANTED.

 

Petitioner Gloria Zupo is authorized to take the following discovery:

 

Inspect and examine the electronic information stored Event Data Recorder located within the vehicle operated by Abigal Gomez at the time of the September 9, 2021 incident.



[1] Petitioner also complied with Cal. Code Civ. Proc. § 2035.040(a). Petitioner filed proofs of service for each document filed with the Court, including the Verified Petition, which state: “I delivered such envelope by hand to the office of the addressee.” The address provided is:

Abigail Gomes

515 North Avenue 50

Los Angeles, CA, 90042

The Court notes that, while the proof of service lists Abigail Gomez with an “s,” the Verified Petition itself states that the name and address of the person(s) from whom the pre-lawsuit discovery is sought is “Abigail Gomez, 515 N Avenue 50, Los Angeles, CA 90042.” (Verified Petition, No. 11.)