Judge Theresa M. Traber, Case Number: 24STCP01192, Date: 2024-06-14 Tentative Ruling

Judge: Theresa M. Traber, Case: 24STCP01192, Date: 2024-06-14 Tentative Ruling

Case Number: 24STCP01192 Hearing Date: June 14, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: June 14, 2024 TRIAL DATE: NOT SET

CASE: Cylinder Enterprises Inc., et al. v. Carmen Salinas, et al.

CASE NO.: 24STCP01192

PETITION TO PERPETUATE TESTIMONY AND EVIDENCE BEFORE COMMENCEMENT OF ACTION

MOVING PARTY: Petitioners Cylinder Enterprises, Inc., and Tasi Uia

RESPONDING PARTY(S): Respondent Shamane Draper

CASE HISTORY:

· 06/28/22: Petition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a petition to perpetuate testimony and evidence before commencement of litigation. Petitioner Cylinder Enterprises is the owner of a vehicle operated by Petitioner Uia that was involved in a traffic accident with several other vehicles and seeks to conduct discovery relating to the injuries and treatment of the other individuals involved in the accident.

TENTATIVE RULING:

The Petition for Pre-Commencement Discovery is DENIED.

DISCUSSION:

Petitioners seek an order authorizing pre-litigation discovery in the form of interrogatories pertaining to the Respondents’ treating physicians and employers, inspection of all medical records relating to the Respondents’ injuries from the accident, subpoenas for records from Respondents’ medical providers, and physical examinations of the Respondents’ injuries.

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 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 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

Petitioners 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 April 30, 2024 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.) Petitioners have therefore complied with Code of Civil Procedure section 2035.040.

Petitioners Cylinder and Uia were the owner and operator, respectively, of a tow truck involved in an automobile accident on December 4, 2023 with a 2015 Toyota Rav4 owned and operated by Respondent Salinas, a 2014 Toyota Prius operated by Uziel Guzman, a 1996 Nissan Maxima operated by Shamae Draper, and a 2017 Chevrolet Cruze owned and operated by Blanca Velasco. (Declaration of Samuel D. Gallman ISO Petition ¶ 3.) Petitioners expect that they will be named defendants in an action filed by Respondents (Petition ¶¶ 2-3.) Indeed, Respondent Draper has filed a response to this motion stating that she filed a Complaint concerning this accident on April 2, 2024. (Declaration of Carolyn M. Afari ISO Response Exh. 1.) Petitioners assert that they do not expect to be able to bring this action, but do not explain why this is so. (Petition ¶ 2.) Petitioners describe the subject matter as concerning the collision. (Id. ¶ 3.)

Petitioners wish to pursue discovery via interrogatories pertaining to the Respondents’ treating physicians and employers, inspection of all medical records relating to the Respondents’ injuries from the accident, subpoenas for records from Respondents’ medical providers, and physical examinations of the Respondents’ injuries. (Petition ¶¶ 9-13.) Petitioner seeks to use this information to establish the extent and degree of injuries suffered by Respondents (Id.)

Petitioners seek to preserve this evidence before the filing of an action because they are not aware of the identity of Respondents’ employers or medical providers or if they have policies that would result in the destruction of records. (Gallman Decl. ¶ 18.)

Petitioners state that the names and addresses from the persons from whom the pre-lawsuit discovery is sought include: Carmen Salinas; 207 East Victoria Avenue, Montebello, California 90640; Uziel Guzmand; 2737 West Twelfth Street, Los Angeles, California 90006; and Shamane Latice Draper; 4218 ½ East Woodlawn Avenue, Los Angeles, California 90011 (Petition ¶ 11.) The Petition also includes a verification page with Petitioner’s declaration and signature. (Petition, Verification.)

The Court is not persuaded, based on the evidence presented, that there is a risk of a failure or delay of justice in the circumstances presented here. Petitioners offer no evidence that demonstrates a risk that the Respondents’ medical or treatment records will be lost or destroyed. Indeed, such a proposition appears counter-intuitive, as accurate medical records are essential for effective medical care, whether routine or emergency. A lack of response from counsel for Respondents (see Gallman Decl. Exhs. D-K) is not evidence of a risk of destruction of this evidence. Moreover, in the case of Respondent Draper, the petition is moot, as a personal injury Complaint seeking damages for injuries sustained in the accident was filed on April 2, 2024. (Afari Decl. Exh. 1.) On this record, the Court is not satisfied that pre-litigation discovery should be authorized.

CONCLUSION

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

Petitioners to give notice.

IT IS SO ORDERED.

Dated: June 14, 2024 ___________________________________

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.