Judge Theresa M. Traber, Case 22STCP02439 2022-08-18 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCP02439, Date: 2022-08-18 Tentative Ruling

Case Number: 22STCP02439 Hearing Date: August 18, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 18, 2022 TRIAL DATE: NOT SET

CASE: In the Matter of the Petition of Pablo M. Velez to Perpetuate Testimony and Evidence Before Commencement of Action

CASE NO.: 22STCP02439

PETITION TO PERPETUATE TESTIMONY AND EVIDENCE BEFORE COMMENCEMENT OF ACTION

MOVING PARTY: Petitioner Pablo M. Velez

RESPONDING PARTY(S): Respondent Christopher Crockett

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a petition, filed on June 28, 2022, to perpetuate testimony and evidence before commencement of litigation. Petitioner is the owner of a vehicle that was involved in a traffic accident and seeks to conduct discovery relating to one of the vehicles involved.

TENTATIVE RULING:

The Petition for Pre-Commencement Discovery is GRANTED.

Petitioner Pablo M. Velez is authorized to take the following discovery:

Non-destructive physical examination of Respondent Christopher Crockett’s 2010 Chevrolet Equinox, including accessing and downloading any electronic information stored in the vehicle’s Event Data Recorder.

DISCUSSION:

Petitioner seeks an order authorizing pre-litigation discovery in the form of a non-destructive physical inspection of a 2010 Chevrolet Equinox.

Petitioner’s Sur-Reply

Petitioner filed a sur-reply following submission of the reply papers on August 9, 2022. Petitioner cites no statute, case, or rule of court entitling Petitioner to file a sur-reply. The Court will therefore not consider the sur-reply in its ruling.

Legal Standard

One who expects to be a party, whether a plaintiff or defendant, to a cognizable action in a Court of this State 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.” (Code Civ. Proc., §2035.010, subd. (a).) 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, with the attachment of a copy of any written instrument connected to the litigation; (4) the particular discovery 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 or 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).)

Analysis

Petitioner seeks an order permitting discovery in the form of a designated expert’s non-destructive inspection of a 2010 Chevrolet Equinox belonging to Respondent, including both physical evidence of its condition and the electronically stored information held on the Event Data Recorder, also known as a “black box,” at the time of the collision which totaled the vehicle.

Petitioner served a Notice of Hearing for the petition, along with a memorandum of points and authorities and a declaration of Petitioner’s counsel on all parties on June 27, 2022 via mail and email, as required by Code of Civil Procedure section 2035.040. (Notice Proof of Service.) A copy of the petition itself was served on all parties on June 29, 2022 via mail and email. (Proof of Service – Conformed Petition.) Petitioner has therefore complied with Code of Civil Procedure section 2035.040.

Petitioner was a co-owner and driver of a tractor-trailer involved in an automobile accident with the 2010 Chevrolet Equinox driven by Respondent. (Petition ¶ 6.) Petitioner expects that he will be a named Defendant in an action filed by Respondent. (Id. ¶ 10.) Petitioner states that he is unable to bring the action or to cause it to be brought because he does not expect to be the injured party in this action. (Id. ¶ 5.) Petitioner describes the subject matter as concerning the collision. (Id. ¶ 6.)

Petitioner wants to use pre-commencement discovery in the form of an inspection of documents, things, or places, to conduct a non-destructive physical examination of Respondent’s 2010 Chevrolet Equinox, including downloading any electronic information on the vehicle’s black box. (Id. ¶ 7.) Petitioner seeks (1) to establish the physical condition of the vehicle post-accident to allow Petitioner’s experts to determine how the accident occurred and potential causation; (2) to access the information on the black box to determine the vehicle’s speed, acceleration, whether the brakes were engaged, and whether the vehicle was operating properly at the time of the accident; and (3) to take scientific measurements of the vehicle’s physical condition to determine the physical forces exerted on Respondent’s body before and during the accident. (Petition ¶ 8.) Petitioner seeks to use this information to establish the extent and degree of injuries suffered by Respondent and potential causes of the accident. (Id.)

Petitioner seeks to preserve this evidence before the filing of an action because Respondent’s insurance company, Wawanesa Insurance, has expressed an intention to auction the vehicle off for scrap, and Respondent has expressed an absolute unwillingness to share with Petitioner any of the information sought. (Id ¶ 9.)

Petitioner states the name and address of the person from whom the pre-lawsuit discovery is sought as follows: Christopher Crockett c/o Daniel Ghyczy, Esq., Alexandroff Law Group, 16542 Ventura Blvd., Suite 203, Encino, CA 91436; and Wawanesa Insurance, PO Box 82867 San Diego, CA 92138-9492. (Petition ¶ 11.) The Petition also includes a verification page with Petitioner’s declaration and signature. (Petition, Verification.)

Respondent’s Opposition

Respondent opposes the Petition on two bases: first, that the petition is not properly verified, and second, that Petitioner has not adequately demonstrated an inability to bring an action or to cause it to be brought.

With respect to Respondent’s first argument, Respondent contends that, under Code of Civil Procedure section 2015.5, which governs the requirements for a valid verification, Petitioner’s verification is invalid because the Petition states that it was executed in California but does not give the place of execution. Respondent misconstrues the requirements of section 2015.5. As stated by the California Supreme Court in Kulshrestha v. First Union Commercial Corp, which is cited by Respondent in support of his erroneous argument:

in-state declarations must satisfy the same substantive requirements as their out-of-state counterparts, including an express facial reference to California perjury law. The latter requirement is met in one of two alternative ways: (1) by stating the “place of execution” in California, or (2) by stating that the certification or declaration under penalty of perjury occurs “under the laws of the State of California.”

(Kulshrestha v. First Union Commercial Corp, (2004) 33 Cal.4th 601, 611.) Here, the verification for the petition plainly states that it is declared “under the laws of the State of California.” (Petition, Verification.) Petitioner has therefore expressly satisfied the requirements for the second method of referencing California perjury law, as required by section 2015.5 and Kulshrestha. The verification is therefore valid.

Respondent’s second argument is that Petitioner has not adequately shown that he is unable to bring an action or cause it to be brought himself. Respondent contends that Petitioner’s insurance company initiated an insurance subrogation claim against Respondent and his insurance company, which Respondent contends shows that Petitioner could bring an action himself. (See Declaration of Daniel Ghyczy ISO Opp, Exh. 1.) Petitioner objects to the evidence of the subrogation claim as inadmissible hearsay, as it is a printout of an email by a Bodily Injury Field Representative from Wawanesa Insurance stating that Wawanesa received a subrogation demand from Petitioner’s insurance company. Petitioner is correct that this email is inadmissible hearsay not subject to any exception or exclusion. (Evid. Code § 1200.) Furthermore, Respondent has not shown how an insurance subrogation claim by Petitioner’s insurance company establishes Petitioner’s ability to bring an action or to cause an action to be brought. Respondent’s contention that Petitioner has set forth no facts showing an inability to bring an action is also not well taken. Petitioner has filed a verified declaration under penalty of perjury which states that he is unable to bring an action because he is not the injured party. (Petition ¶ 5.) Respondent cites no law which states that this is an insufficient justification for a petition for pre-commencement discovery.

Therefore, the Court finds that the discovery requested will prevent a delay or failure of justice and will order the requested discovery.

CONCLUSION

Accordingly, the Petition for Pre-Commencement Discovery is GRANTED.

Petitioner Pablo M. Velez is authorized to take the following discovery:

Petitioner to give notice.

IT IS SO ORDERED.

Dated: August 18, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.