Case Number: BC693131 Hearing Date: November 08, 2019 Dept: 5

ORDER #1 of 2

TAI SAPATA CROSBY,

Plaintiff,

v.

steven paul schott, et al.

Defendants.

Case No.: BC693131

Hearing Date: November 8, 2019

[TENTATIVE] order RE:

defendant’s motion for an order granting leave to conduct multiple physical and mental examinations of plaintiff

BACKGROUND

On February 6, 2018, Plaintiff Tai Sapata Crosby (“Plaintiff”) filed a complaint against Defendants Steven Paul Schott and Giese Trucking, Inc. (collectively, “Defendants”) following a motor vehicle accident. Pursuant to Code of Civil Procedure Sections 2032.020, 2032.310, and 2032.320, Defendants move for an order granting leave to conduct the following four separate medical examinations of Plaintiff: An ophthalmological examination, an orthopedic examination, a neuropsychological examination, and a psychological examination. Plaintiff opposes the motion, which is granted.

LEGAL STANDARD

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff where: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; and (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc. § 2032.220, subd. (a).) Where any party seeks to obtain discovery by a physical examination other than that described in Section 2032.220, or by a mental examination, the party shall obtain leave of the court. (Code Civ. Proc. § 2032.310, subd. (a).)

A motion for an examination shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identify and specialty, if any, of the person or persons who will perform the examination, and shall be accompanied by a meet and confer declaration. (Code Civ. Proc. § 2032.310, subd. (b).) The Court shall grant the motion only for good cause show. (Code Civ. Proc. § 2032.310, subd. (a).)

DISCUSSION

In Plaintiff’s October 31, 2018 responses to written discovery, Plaintiff claimed a “head injury including cognitive changes, PTSD, injures to his neck, upper back, thoracic, low back, left knee, double vision, etc.” (Loangkote Decl., ¶ 2, Exh. A.) At Plaintiff’s depositions on July 26, 2019 and August 7, 2019, he claimed to have suffered: (1) ophthalmological issues following the accident which he claims future care for his eyes and vision (Crosby Depo., 154:11-13, 116:18-25, 249:14-19); (2) back pain with pain radiating into other extremities, as well as tears in his back as confirmed by an MRI (Crosby Depo., 127:25-128:3, 129:6-9); (3) ongoing back issues with future surgery being a possibility (Crosby Depo., 140:2-9); (4) neurological issues, including post-concussion syndrome or traumatic brain injury (Crosby Depo., 197:7-20); (5) dizziness, headaches, memory loss, decline in executive functioning, blackouts, and other symptoms associated with neurological issues (Crosby Depo., 118:10-24); and (6) post-traumatic stress disorder (Crosby Depo., 232:11-18, 261:13-19, 261:7-12).

Based upon this evidence, Plaintiff has put all of these conditions at issue, and Defendants are entitled to have him examined with respect to each. There is good cause for the ophthalmology examination based upon Plaintiff’s alleged eye issues. There is good cause for the orthopedic examination based upon Plaintiff’s alleged back issues. There is good cause for the mental examinations because Plaintiff alleges a series of neurological problems, as well as post-traumatic stress disorder.

In opposition, Plaintiff indicates that he has always agreed that Defendants may take an ophthalmologic examination and orthopedic examination of Plaintiff. As for the mental examinations, Plaintiff states that Plaintiff is agreeable to a single interview to be conducted by one of the mental health professionals and then to submit to separate testing sessions by each of the mental health professionals. (Glickman Decl., ¶ 4.) However, Plaintiff has offered no legal basis for limiting Defendants’ examinations in this manner. There is good cause for both examinations because psychologists and neuropsychologists test for different things.

CONCLUSION AND ORDER

Defendants’ motion to compel multiple medical examinations is granted. Plaintiff shall submit to an ophthalmological examination, an orthopedic examination, a neuropsychological examination, and a psychological examination within thirty (30) days of notice of this order unless Defendants stipulate to different dates. Defendants shall provide notice and file proof of such with the Court.

DATED: November 8, 2019 ___________________________

Hon. Stephen Goorvitch

Judge of the Superior Court

ORDER #2 of 2

TAI SAPATA CROSBY,

Plaintiff,

v.

steven paul schott, et al.

Defendants.

Case No.: BC693131

Hearing Date: November 8, 2019

[TENTATIVE] order RE:

DEFENDANTs’ motion to compel plaintiff’s deposition answers

BACKGROUND

On February 6, 2018, Plaintiff Tai Sapata Crosby (“Plaintiff”) filed a complaint against Defendants Steven Paul Schott and Giese Trucking, Inc. (collectively, “Defendants”) following a motor vehicle accident. During the deposition, Plaintiff’s counsel instructed Plaintiff not to answer questions related to Plaintiff’s prior motor vehicle accidents. Defendant now moves to compel answers to those questions, and Plaintiff opposes the motion, which is granted.

LEGAL STANDARD

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc. § 2025.480, subd. (a).) “If the court determines that the answer or production is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (Code Civ. Proc. § 2025.480, subd. (i).)

DISCUSSION

The law is clear that counsel should not instruct a deponent not to answer any question unless the question implicates a privilege or trade secret. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014.) Irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition. (Ibid.) The question in this case relate to Plaintiff’s prior accidents:

Q. When was your last motor vehicle accident?

[Plaintiff’s counsel]: Let’s talk only about the ones where you were injured. Okay?

[Defendant’s counsel]: Well, no, I’ll decide whether he was injured or not.

[Plaintiff’s counsel]: I’m going to instruct him not to answer the question then.

[Defendant’s counsel]: On what basis? Is it somehow privileged?

[Plaintiff’s counsel]: Totally irrelevant, and –

. . .

[Plaintiff’s counsel]: It’s not reasonably calculated to lead to admissible evidence, and it’s harassing. And otherwise you’re trying to intimidate the witness by asking him questions that you know you can’t ask.

(Crosby Depo., 47:5-22.)

Q. When is the last time you were involved in a motor vehicle accident?

[Plaintiff’s counsel]: Okay. I’m instructing –

[Defendant’s counsel]: From today’s date.

[Plaintiff’s counsel]: I instruct him not to answer the question as phrased. You can ask him questions where he suffered any injury in the accident. (Instruction not to answer.)

(Crosby Depo., 48:5-16.)

Q. Have you been involved in any motor vehicle accidents since the accident of July 6th, 2017?

[Plaintiff’s counsel]: Same objections. Instruct him not to answer.

(Crosby Depo., 49:13-17.)

Q. Have you been involved in a motor vehicle accident since July 6, 2017, in which your car suffered property damage?

[Plaintiff’s counsel]: Same objections. Instruct him not to answer.

(Crosby Depo., 49:19-24.) Plaintiff’s counsel’s conduct is outrageous, not only because there is no legal support for his position, but the questions clearly are relevant to this action. If Plaintiff was injured in other car accidents, Defendants are entitled to conduct discovery on that accident to determine whether the claimed injuries stem from this accident or a different accident. If Plaintiff’s counsel disagreed, he should have done one of the following: (1) Adjourn the deposition and seek a protective order regarding the questions at issue, (2) Stipulate with Defendants’ counsel to complete the deposition without answering those questions and then seek a protective order regarding the questions at issue, or (3) Allow Plaintiff to answer the questions and then file motions to quash subpoenas relating to this discovery and/or motions in limine to exclude the testimony at trial. It was not acceptable for Plaintiff’s counsel to assume the rule of the judge, rule on the relevance objections, and instruct the witness not to answer. (Stewart, supra, 87 Cal.App.4th at 1011.)

Plaintiff argues that the Court should deny Defendants’ motion because they failed to schedule an Informal Discovery Conference (“IDC”). Plaintiff is incorrect. An IDC is only required before a motion to compel further responses. Because Plaintiff refused to answer questions, this motion was properly filed and a motion to compel answers to deposition questions, which does not require an IDC. Regardless, an IDC would not have been fruitful in this case because Plaintiff’s counsel has no legal support for his position and should not have created this discovery dispute in the first instance.

Defendants seek sanctions against Plaintiff and counsel-of-record in the amount of $2,480. The Court finds that sanctions against Plaintiff would not be appropriate because he was following her counsel’s instructions. However, counsel should have known better than to instruct his client not to answer questions based upon relevance objections (especially when the subject matter was clearly relevant). Indeed, Defendants’ counsel emailed Plaintiff’s counsel on September 12, 2019 and identified all relevant authorities in support of his position in an effort to persuade Plaintiff’s counsel to resolve the issue without the need for a motion. Inexplicably, Plaintiff’s counsel refused, and Defendants filed this motion on September 20, 2019. Counsel’s conduct constitutes an abuse of the discovery process, warranting sanctions. The Court orders Plaintiff’s counsel-of-record, Steven C. Glickman, to pay sanctions in the amount of $1,380, based upon six hours of attorney time at $220 per hour, plus a filing fee of $60.

CONCLUSION AND ORDER

Defendant’s motion to compel Plaintiff’s answers to deposition questions is granted. Plaintiff shall submit to a deposition within twenty (20) days of notice of this order (unless Defendants stipulate to a different date) at which he will answer all questions concerning prior accidents. The Court orders Plaintiff’s counsel, Steven C. Glickman, to pay sanctions to Defendants, through counsel, in the amount of $1,380 within twenty (20) days of notice of this order. Defendant shall provide notice and file proof of such with the Court.