Judge Teresa A. Beaudet, Case 22STCV23961 2022-10-24 Tentative Ruling

Plaintiff Adrian Jonathan Gallegos (“Plaintiff”) filed this action on July 10, 2019 against, inter alia, Defendant Beverly Hills Cab Co., Inc. On September 3, 2019, Defendant Beverly Hills Transit Cooperative, Inc. (“BHC”), erroneously sued as Beverly Hills Cab Co., Inc., filed an answer to the Complaint.

The operative First Amended Complaint (“FAC”) was filed on February 14, 2022 and asserts causes of action for (1) battery, (2) negligence, and (3) negligent hiring, supervision, and retention. In the FAC, Plaintiff alleges that he hired “John Doe’s” taxi service to take him to his home on or about May 17, 2019. (FAC, ¶¶ 12, 13.) Upon reaching his destination, Plaintiff exited the taxi (the “Subject Vehicle”) and proceeded to enter his apartment complex. (FAC, ¶ 13.) At this point in time, Defendant “John Doe” accelerated the Subject Vehicle directly at Plaintiff. (FAC, ¶ 13.) Defendant “John Doe” then exited the Subject Vehicle and began to pummel Plaintiff’s head and body with an unidentified metal object. (FAC, ¶ 13.) Due to this attack, Plaintiff suffered bodily injuries including but not limited to blindness to his left eye. (FAC, ¶ 14.) Plaintiff alleges that he also suffered severe emotional distress from the driver trying to strike Plaintiff with the Subject Vehicle. (FAC, ¶ 14.) In addition, Plaintiff alleges that his injuries have caused and will continue to cause Plaintiff physical pain, emotional distress, humiliation, fear, embarrassment, and other pain and suffering. (FAC, ¶ 28.)

On October 12, 2021, BHC served its Special Interrogatories, Set Two on Plaintiff. (Genatempo Decl., ¶ 2, Ex. A.) On December 15, 2021, Plaintiff served unverified responses to the Special Interrogatories, Set Two. (Genatempo Decl., ¶ 3, Ex. B.) On February 16, 2022, Plaintiff provided verifications for his responses to the Special Interrogatories, Set Two. (Genatempo Decl., ¶ 5, Ex. D.)

BHC indicates that thereafter, the parties corresponded at length but were unable to reach an agreement. (Genatempo Decl., ¶ 7, Ex. F.)

BHC now moves for an order (1) compelling Plaintiff to serve further substantive verified responses in connection with BHC’s second set of Special Interrogatories Nos. 37-41; and (2) that Plaintiff and his attorneys of record, Seth I. Rosenberg, Esq. and the law firm of Emergent LLP, pay attorneys’ fees and costs to BHC in the sum of $2,810.00. Plaintiff opposes.

Pursuant to Code of Civil Procedure section 2030.300, subdivision (d), “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Plaintiff’s responses to these interrogatories assert objections, and also indicate that “Plaintiff is not making a claim for mental or emotional distress ‘over and above that usually associated with the physical injuries claimed’ and no psychiatric testimony will be offered at trial in support of any claimed emotional distress. (See CCP § 2032.320(c).). Plaintiff agrees to stipulate to such.” (Genatempo Decl., ¶ 3, Ex. B.)

Code of Civil Procedure section 2032.320, subdivision (b) provides that “[i]f a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.” Code of Civil Procedure section 2032.320, subdivision (c) provides that “[a] stipulation by a party under this subdivision shall include both of the following: (1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed. (2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.”

First, BHC contends that Plaintiff’s stipulation pursuant to Code of Civil Procedure section 2032.320, subdivision (c) “does not allow him to conceal medical information behind the ‘garden variety’ label.” (Mot. at p. 5:26-27.) Specifically, BHC argues that “[t]here is ample case law which holds that Plaintiff cannot foreclose discovery into his treatment for mental or emotional conditions by merely incanting the term ‘garden variety’ after filing his complaint. For example, the ‘garden variety’ exception to waiver of privacy privileges, does not apply where the alleged emotional damages are based on an ongoing or future condition.” (Mot. at p. 6:6-9.) The Court notes that BHC cites to nonbinding federal authority in support of this assertion.[1]

Plaintiff asserts that because he limits his damages claim as allowed under Code of Civil Procedure section 2032.320, his mental-health records are irrelevant and not discoverable. Both parties cite to Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1011, where the Court of Appeal held that “the mere act of filing a personal injury action asking for general damages for pain and suffering does not tender the plaintiff’s mental condition so as to make discoverable postinjury psychotherapeutic records.” In Davis, the “petitioner and her husband filed a complaint for damages for personal injuries suffered in an automobile accident on March 16, 1990. Real party in interest, the operator of a vehicle, was the only named defendant. Petitioner claimed compensatory damages for wage loss, hospital and medical expenses, general damage and loss of earning capacity.” (Id. at p. 1011.) The “real party sent a subpoena duces tecum to the custodian of records for Cedar Women’s Center, seeking petitioner’s treatment records. In August 1991, petitioner filed a motion to quash the subpoena and for a protective order…” (Ibid.) The trial court denied the motion to quash the subpoena, and the Court of Appeal found that “[t]he trial court’s denial of the motion to quash the subpoena violated petitioner’s constitutional right of privacy and constitutes an abuse of discretion.” (Id. at pp. 1011, 1020.)

The Court of Appeal found that that “[b]y limiting her claim for emotional distress to pain and suffering associated with stated physical injuries, and by explaining that the center provided no treatment in connection with the injuries for which compensation was sought, petitioner established that it is not reasonably probable that the records are directly relevant to the condition she placed in issue.” (Davis v. Superior Court, supra, 7 Cal.App.4th at pp. 1017.) The Court further noted that “[s]hould petitioner broaden her claim to include damages for other emotional distress or otherwise tender additional issues regarding her mental or emotional state, real party is not without recourse. We only hold that upon the circumstances presented, disclosure of the records of Cedar Women’s Center was erroneously ordered.” (Id. at p. 1020.)

BHC argues that Davis is distinguishable because the petitioner in that case did not make a claim for severe emotional distress and because “the ‘garden variety’ emotional damages from a car accident are not comparable to those from the violent intentional attack which Plaintiff alleges here.” (Mot. at p. 7:20-22.) BHC provides evidence that Plaintiff testified that he was diagnosed with severe anxiety, severe depression and PTSD. (Genatempo Decl., ¶ 9, Ex. H (Gallegos Depo.) at p. 76:18-19.)

But here, Plaintiff has stipulated that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed. Similarly, in Davis, the “[p]etitioner…clearly limited her claim to pain and suffering associated with the injuries to her body.” (Davis v. Superior Court, supra, 7 Cal.App.4th at p. 1018.) The Davis Court noted that “[r]eal party seeks any and all medical or hospital records relating to the care and treatment of petitioner to date; real party has made no attempt to limit the request to specific matters directly relevant to petitioner’s pain and suffering from the physical injuries. Petitioner has established that the records do not concern treatment for the injuries for which she claims damages. The request is thus overbroad because it necessarily encompasses privileged material which is not relevant to the lawsuit.” (Id. at pp. 1017-1018.) Here too, the Special Interrogatories at issue are not limited to specific matters directly relevant to Plaintiff’s pain and suffering from his alleged physical injuries. Rather, as set forth above, Special Interrogatories Nos. 37-41 broadly request that Plaintiff identify by name, address, and telephone number all neuropsychologists, therapists, psychologists, psychiatrists, and mental health professionals who provided Plaintiff with any consultation, examination, or treatment in the past ten years.

BHC also asserts that exceptional circumstances exist here to bar reliance on a stipulation to preclude discovery. As set forth above, Code of Civil Procedure section 2032.320, subdivision (b) provides that “[i]f a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.” (Emphasis added.) However, in the motion, BHC does not appear to specifically identify what exceptional circumstances it asserts are applicable.

Plaintiff cites to Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 8:1546, which provides that for purposes of Code of Civil Procedure section 2032.320, subdivision (b), “[f]or example, ‘exceptional circumstances’ might include situations where, although plaintiff offers such a stipulation, plaintiff’s behavior is obviously irrational or plaintiff’s physical appearance suggests a mental injury. Under these circumstances, although the stipulation precludes plaintiff from expressly making a claim for mental injury or offering evidence on the subject, the jury might conclude that plaintiff sustained such an injury and award damages accordingly.” BHC does not assert that such circumstances exist here.[2]

The Court also notes that Plaintiff has indicated that he will “testify only about what he has experienced, emotionally, and not use diagnostic terms that he is ill-equipped to testify regarding, like PTSD.” (Opp’n at p. 10:16-18.)

Based on the foregoing, the Court does not find that BHC has demonstrated good cause to compel further responses to Special Interrogatories Nos. 37-41. The Court also denies BHC’s request for sanctions.[3]

[1]The Court notes that BHC also cites to Smith v. Equinox Holdings, Inc. (N.D.Cal. Feb. 12, 2015, No. 14-cv-00846-LB) 2015 U.S.Dist.LEXIS 1752 in support of the motion. This case is likewise nonbinding federal authority.

[2] BHC also argues that “Plaintiff has not made the statutory stipulation,” but also that the “defense intends to enforce Plaintiff’s stipulated concession as to the withdrawal of claims other than those ‘usually associated’ with his personal injuries.” (Mot. at p. 11:6-10.) BHC does not cite to legal authority indicating that the stipulation set forth in Plaintiff’s verified discovery responses is insufficient.

[3]Plaintiff indicates that he does not seek sanctions. (Opp’n at p. 12:13.)

Superior Court of California

County of Los Angeles

Department 50