Frederico Paredez v. Michael Todd Williams		CASE NO. 112CV230995
DATE: 25 July 2014	TIME: 9:00	LINE NUMBER: 4

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose.  Any party opposing the tentative ruling must call Department 19 at 408.882.6856 and the opposing party no later than 4:00 PM Thursday 24 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 July 2014, the motion of defendant Michael Todd Williams (“Defendant”) to take a second deposition of plaintiff Frederico Paredez (“Plaintiff”) was argued and submitted.  Plaintiff filed a formal opposition to the motion.

Statement of Facts  

This action arises out of a motor vehicle accident which occurred on 26 August 2010, at First Street and San Fernando Street in San Jose, California.  Plaintiff alleges that Defendant was driving a sports utility vehicle while intoxicated when Defendant rear-ended his motorcycle as he was stopped at a stoplight, causing injury to his person and property.

On 23 August 2012, Plaintiff filed the operative complaint alleging a cause of action for negligence and claiming wage loss, loss of earning capacity, loss of use of property, property damage, hospital and medical expenses, and general damages.

The matter has a trial date of 3 November 2014.

Discovery Dispute

Defendant took Plaintiff’s deposition on 25 June 2013.  (Pinelli Dec., p. 1:21.)  During the deposition, Defendant questioned Plaintiff regarding the nature extent of his physical injuries and medical treatment for the same (Opp’n., Ex. 1, pp. 40-45, 48-49, 63-64.)  Defendant also questioned Plaintiff as to whether he received any lien or demand for payment from Medicare or the Social Security Administration.  (Mem. Ps & As., p. 1:22-24; Pinelli Dec., p. 2.)  Defendant’s counsel declares that he did not ask any questions at the deposition about Plaintiff’s mental condition or delve into the basis for Plaintiff’s Social Security disability claim.  (Pinelli Dec., p. 1:23-25; Mem. Ps & As., p. 1:22-24.)  Defendant’s counsel further declares that Plaintiff’s counsel indicated that Plaintiff “would not be able to withstand questions about his mental condition” and requested that Defendant’s counsel refrain from asking questions regarding the same.  Defendant’s counsel states that he “acceded to the request, at it appeared that the case was a limited value soft tissue back injury.”  (Pinelli Dec., p. 1:26.)

On 28 May 2014, Defendant’s counsel sent Plaintiff’s counsel a letter indicating that it was his understanding that Plaintiff would be “making a large claim for future medical specials and a life care plan.”  (Pinelli Dec., Ex. E, p. 1.)  Defendant’s counsel stated that he agreed not to “delve into the basis of [Plaintiff’s] social security disability claim” during Plaintiff’s prior deposition “[s]ince the case appeared to be confined to a soft tissue case with typical residuals.”  (Id.)  Defendant’s counsel further stated that since the scope of Plaintiff’s claim had “expanded,” he believed it was “necessary to delve into these issues” to determine the nature and extent of Plaintiff’s future medical claims and/or life care plan.  (Id.)  Defendant’s counsel indicated that he was enclosing a new deposition notice, written discovery, and a Social Security Administration authorization form.  (Id.)

Plaintiff’s counsel sent Defendant’s counsel a reply letter on 2 June 2014.  (Pinelli Dec., Ex. E, pp. 2-5.)  Plaintiff’s counsel indicated that a further deposition of Plaintiff was unwarranted.  (Id.)   Plaintiff’s counsel indicated that he advised Defendant’s counsel prior to the deposition that “[Plaintiff’s] social security disability does not have anything to do with any physical complaints, but rather with an unrelated mental health issue which is not part of the damages in this case,” and Defendant’s counsel had “indicated that unless [Plaintiff] was claiming an aggravation of his mental illness, then [he] would not ask [Plaintiff] about his mental health during the deposition.”  (Id.)  Plaintiff’s counsel stated that Plaintiff testified at deposition that all of his injuries were physical (i.e., tooth, neck, and back).  (Id.)  Plaintiff’s counsel pointed out that Defendant’s counsel had questioned Plaintiff regarding his Social Security disability claim and whether there was any outstanding lien.  (Id.)  Plaintiff’s counsel asserted that Plaintiff’s mental health information was privileged and irrelevant to the instant case.  (Id.)  Plaintiff’s counsel argued that the scope of Plaintiff’s claim had not expanded as Defendant’s counsel was aware at the time of the prior deposition the full extent of Plaintiff’s physical injuries. (Id.)

On 12 June 2014, Plaintiff’s counsel served a formal written objection to the deposition notice issued by Defendant to take a second deposition of Plaintiff.

On 24 June 2014, Defendant filed the instant motion to take a second deposition of Plaintiff on the limited issues of Plaintiff’s mental health and Social Security disability claim.  Plaintiff filed papers in opposition to the motion on 14 July 2014.  Defendant filed a reply on 17 July 2014.

Discussion

Defendant moves to take a second deposition of Plaintiff on the limited issues of Plaintiff’s mental health and Social Security disability claim pursuant to Code of Civil Procedure section 2025.610.

I.             Legal Standard

Code of Civil Procedure section 2025.610, subdivision (a) provides that “[o]nce any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.”  However, “for good cause shown, the court may grant leave to take a subsequent deposition.”  (Code Civ. Proc., § 2025.610, subd. (b); see also Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 378 [stating that discovery statutes should be construed liberally in favor of permitting discovery, even where a party moving for leave to conduct discovery is required to show good cause for the discovery sought].)

Good cause for a subsequent deposition in a specific case may be demonstrated through an affirmative showing by the moving party of specific facts and circumstances warranting a second deposition. (See In re Marriage of Michaely (2007) 150 Cal. App. 4th 802, 804 [opinion references trial court decision finding that the wife had demonstrated good cause for the suspension of the ‘one deposition rule’ because the issues and facts involved were complicated]; see also McCoy v. Gustafson (2009) 180 Cal. App. 4th 56, 97-98 [holding that good cause was not shown to delay trial for a subsequent deposition of an expert when plaintiff failed to develop expert’s opinion prior to trial].)

For example, in Carlson v. Super. Ct. (1961) 56 Cal. 2d 431, defendant wife sought additional depositions with respect to her motion for modification of child support and alimony based on changed circumstances. Plaintiff husband moved to prohibit the depositions on the ground that there had been prior extensive depositions at the time of the original divorce trial. The California Supreme Court found that the additional depositions requested concerned issues of fact that did not exist at the time of the original trial and “[i]t would be an unwarranted limitation upon the discovery statutes to hold that they deny a litigant the right to inquire into matters relating to a new factual issue merely because she has taken depositions prior to the existence of the facts giving rise to that issue.” (Id. at 439.)

II.            Analysis

Defendant contends that good cause exists for an order granting leave for a subsequent deposition of Plaintiff because “[P]laintiff has now put into contention his mental condition and his social security disability.”  (Notice of Motion, p. 1:23-24.)  Defendant points out that in his initial response to form interrogatory 6.2, which asked for all injuries which Plaintiff attributes to the accident, Plaintiff stated that he “suffers from anxiety as a result of the collision.”  (Pinelli Dec., Ex. B, p. 10:13-18.)  Similarly, in his initial response to form interrogatory 6.3, which asked for any complaints that Plaintiff attributed to the incident, Plaintiff stated that he “suffers from bouts of anxiety and depression as a result of the collision” and the “[a]nxiety and depression come and go.”  (Pinelli Dec., Ex. B, p. 10:20-25, 11:1-9.)  Defendant states that at Plaintiff’s prior deposition on 25 June 2013,  he did not question Plaintiff regarding his mental condition and Social Security disability claim because Plaintiff’s counsel advised that these issues were not in contention in the lawsuit and the “deposition would be derailed by [P]laintiff’s reaction.”  (Mem. Ps & As., p. 1:19-22.)

Defendant contends that “[b]ased on this assurance by [P]laintiff’s counsel, defense counsel agreed not to delve into these areas except to ask if there was a lien on his case or demand for payment by Medicare or other providers including Social Security.”  (Mem. Ps & as., p. 1:22-24.)  Defendant asserts that after the 25 June 2013 deposition, “Plaintiff claimed almost $2,000,000 lifetime care costs as damages.”  (Mem. Ps & As., p. 1:25-26.)  Defendant argues that a second deposition of Plaintiff is “necessary because discovery may show that the reason [P]laintiff is claiming lifetime care costs is due in whole or in part because of his ongoing mental issues of his Social Security disability.”  (Mem. Ps & As., 2-6.)

Conversely, Plaintiff argues that Defendant was aware of his extensive physical injuries and medical treatment at the time of his 25 June 2013 deposition, and fully questioned him regarding the same.  Plaintiff also states that “[he] is not making a psychological, mental or emotional claim in this case.”  (Opp’n., p. 7:21-26.)  Plaintiff asserts that his past psychological condition and the resulting Social Security disability claim are unrelated to the instant case.  (Id.) Plaintiff does not explain his responses to form interrogatories 6.2 and 6.3, which state that he attributes injuries and complaints in the form of anxiety and depression to the accident.[1]

Based on Plaintiff’s responses to the form interrogatories, it appears that he has put his mental condition at issue in the instant case by claiming that he suffers ongoing bouts of depression and anxiety as a result of the accident.  (See Davis v. Super. Ct. (1992) 7 Cal. App. 4th 1008, 1015-1017; see also In re Lifschutz (1970) 2 Cal. 3d 415, 435; Britt v. Super. Ct., supra, at p. 850, fn. 9.)

While Plaintiff’s mental condition and the fact that he was receiving Social Security disability for the same are not new facts, Plaintiff is now apparently connecting them to this accident.  Defense counsel states that he met with the attorneys for Plaintiff prior to the deposition.  They requested that defense counsel not ask any questions about Plaintiff’s mental condition as they thought that their client would not be able to withstand questions about Plaintiff’s mental condition.  Defense counsel granted their request as it appeared that the case was a limited value soft tissue back injury.  (Pinelli Dec., p. 1:22-26.)

 

 

Conclusion and Order

The Court finds sufficient to constitute good cause warranting a second deposition of Plaintiff.  Accordingly, Defendant’s motion to take a second deposition of Plaintiff is GRANTED.  Defendant may inquire about Plaintiff’s social security disability claim.  The deposition will be limited to three hours.