Judge: William A. Crowfoot, Case: 20STCV24719, Date: 2022-10-18 Tentative Ruling

Case Number: 20STCV24719    Hearing Date: October 18, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On June 30, 2020, plaintiff Joshua Payton (“Plaintiff”) filed this action against defendants Geneva Smith (“Smith”) and Los Angeles County Metropolitan Transportation Authority (“Metro”) (collectively, “Defendants”).  Plaintiff alleges that on December 8, 2019, Smith was driving Metro’s bus in the course of her employment with Metro.  (Compl., GN-1.)  While at a bus stop, Smith abruptly drove off, Plaintiff fell, and Smith ran over Plaintiff’s legs with the bus. 

On September 3, 2020, Defendants filed an answer. 

On July 12, 2022, the Court granted Metro’s ex parte application to continue the trial date from August 12, 2022 to May 5, 2023. 

On August 18, 2022, the Court granted Defendant’s unopposed motion to reopen discovery. 

On September 14, 2022, Metro filed this motion for leave to take a subsequent deposition of Plaintiff.  The motion is opposed.

II.          DISCUSSION

For good cause shown, the court may grant leave to take a subsequent deposition of any natural person.  (Code Civ. Proc., § 2025.610.)  Metro argues that it should have the opportunity to conduct a second deposition of Plaintiff, who was initially deposed over a year ago on May 19, 2021.  Metro states that since his initial deposition, Plaintiff has been diagnosed with complex regional pain syndrome (“CRPS”) and has apparently been told that he may need an amputation.  Plaintiff has also apparently been told that he may never work again, thus amplifying his damages for future lost wages.  These facts were recently discovered on June 2, 2022, because they were in Plaintiff’s mediation brief.  Metro also states that it seeks to depose Plaintiff concerning his prior felony convictions and his “marital/social history.”  (Motion, 2:24-25.) 

Metro’s counsel, Ashkan Ashour (“Ashour”), summarizes Plaintiff’s discovery responses and deposition testimony and declares that Plaintiff never mentioned CRPS in his discovery responses or deposition testimony.  (Ashour Decl., ¶¶ 3-4.)  Ashour also declares that “Metro” learned for the first time on June 2, 2022, that Plaintiff had been treating with “Dr. Prager”, was diagnosed with CRPS, and would argue at trial that Plaintiff may need an amputation and will never work again.  (Ashour Decl., ¶ 7.) 

Ashour further declares that Plaintiff’s testimony has been inconsistent.  First, Metro has been unable to locate and serve Plaintiff’s girlfriend at the time of the incident, Ariana Bloom (“Bloom”), and the address Plaintiff provided for Bloom’s house is actually a mental health center.  Second, Metro’s investigation has concluded that Plaintiff may have been previously married and has a felony domestic violence conviction.  Third, Metro argues it has a right to investigate any “hereditary factors” that accompany an amputation and alleges on information and belief that Plaintiff’s father suffers from diabetes and is an amputee. 

In his opposition brief, Plaintiff argues that Metro’s questions about the new CRPS diagnosis should be directed towards the doctor who gave it.  Plaintiff also argues that he has already responded to copious amounts of written discovery which address his prior convictions, drug use, and marital history.  Third, Plaintiff argues that simple inconsistencies regarding irrelevant subjects like drug use, marital history, and where Plaintiff spent the night before the incident, are not good cause for a subsequent deposition and were already addressed in written discovery responses served on August 23, 2022.  Fourth, Plaintiff argues that his father should be deposed with any questions about the amputation.  Additionally, Plaintiff argues that Metro could not have been surprised by his loss of earning capacity claim because Plaintiff’s leg was completely crushed and he testified in his deposition that he has not returned to work.

On reply, Metro only addresses Plaintiff’s medical issues and maintains that it has a right to ask follow-up questions regarding Plaintiff’s claimed injuries in light of the recent diagnosis of CRPS and recommendation for amputation.  

Metro does not make a sufficient showing of “good cause” for a subsequent deposition.  Metro does not show that any new symptoms or injuries even exist or could not be obtained in written discovery.  Questions about a medical diagnosis are better directed towards Dr. Prager as the physician who made the diagnosis.  Similarly, Plaintiff’s claim that amputation is likely can be further explored through written discovery. 

III.        CONCLUSION

Metro’s motion is DENIED without prejudice. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.