Filed 10/10/14 State of California v. Superior Court CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE STATE OF CALIFORNIA et al., D065664
Petitioners, (Imperial County
Super. Ct. No. ECU07069)
v.
THE SUPERIOR COURT OF IMPERIAL
COUNTY,
Respondent;
JERRY RABB et al.,
Real Parties in Interest.
Petition for writ of mandate from an order of the Superior Court of Imperial
County. Juan Ulloa, Judge. Petition granted.
Kamala D. Harris, Attorney General, Richard F. Wolfe and Paul T. Hammerness,
Deputy Attorneys General, for Petitioners.
No appearance for Respondent.
Terry L. Singleton and Horacio Barraza for Real Parties in Interest.
In this personal injury case, Jerry Rabb sued the State of California and Tony Lee
Royer, a State of California employee, (together, Defendants) for injuries resulting from a
vehicle collision. The writ proceedings arose in response to the trial court's order
denying Defendants' request to compel Rabb to answer deposition questions regarding his
methamphetamine use and any related treatment. Defendants argued the evidence was
relevant to causation and damages. We conclude the trial court erred in denying
Defendants' motion to compel as Rabb's methamphetamine use is relevant to his loss of
earning capacity claim and possibly to comparative fault. Accordingly, we grant
Defendants' petition for writ of mandate and direct the trial court to enter a new order
granting Defendants' motion to compel Rabb's answers.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2011, Rabb was driving his motorcycle in El Centro, California.
While driving a vehicle owned by the State of California, Royer collided with Rabb's
motorcycle, causing Rabb to suffer serious injuries. Rabb sued Defendants, seeking to
recover damages, including amongst other things, loss of earnings. Defendants admitted
that Royer, while acting within the course and scope of his employment, was negligent
and that his negligence was a cause and contributed to the accident.
At his deposition in November 2013, Rabb testified that at the hospital after the
accident, hospital staff informed him that he had tested positive for methamphetamine.
Thereafter, defense counsel asked Rabb if he (1) had an explanation for the positive drug
test, (2) had ever used methamphetamine prior to the accident, (3) frequently used
methamphetamine prior to the accident, (4) had used methamphetamine since the
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accident, and (5) had ever obtained treatment for methamphetamine addiction. Rabb's
counsel instructed him not to answer these questions, asserting objections based on
relevancy and Rabb's Fifth Amendment rights.
Defendants moved to compel answers to the deposition questions regarding Rabb's
methamphetamine use and treatment on the basis that the information was relevant to
causation and damages. In regard to causation, Defendants argued that although they
admitted they were negligent, they did not concede the issue of Rabb's contributory
negligence. Thus, Defendants claimed information regarding whether Rabb was
impaired by methamphetamine on the day of the accident was relevant to how his driving
may have contributed to the accident. In regard to damages, Defendants argued evidence
of Rabb's history of methamphetamine use and treatment was necessary to evaluate his
loss of earnings claim and health status.
To support their motion, Defendants provided the court with positive
methamphetamine results from a urine test performed on the day of the accident.
Defendants also provided Rabb's employment records indicating that between 2004 and
2006, his employer routinely drug tested him after he was convicted of driving under the
influence. The results of those drug tests were negative; however, out of the 14 tests,
Rabb's employer suspected that on five occasions Rabb hydrated himself prior to the test,
which resulted in a diluted specimen.
Lastly, Defendants submitted declarations from two doctors regarding the effects
of methamphetamine use. Dr. Smith stated that Rabb's test results on the day of the
accident indicated he had taken methamphetamine within 24 hours of the accident.
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According to Dr. Smith, methamphetamine addicts are prone to exhibit erratic and
psychotic behaviors, including hallucinations, paranoia and impulsive violent behavior
such as road rage. Further, according to Dr. Smith, "[c]hronic meth[amphetamine] users
are unable to successfully follow safety instructions and flaunt safety guidelines,
including those pertaining to the safe operation of motor vehicles. Meth[amphetamine]
use by chronic users impairs brain function with spatial distortion and leads to increased
error rates on the job. Studies show that [m]eth[amphetamine] addicts who drive sustain
twice the accident rates of unimpaired drivers." Similarly, Dr. Strauser stated chronic
methamphetamine use has been linked to problems carrying out daily activities and
higher unemployment rates. Based on his review of Rabb's medical records, Dr. Strauser
also stated that the trauma surgeon who cared for Rabb on the day of the accident had
spoken with Rabb's brother and learned Rabb had " 'a situation with methamphetamine.' "
The trial court denied Defendants' motion to compel, concluding they had "laid an
insufficient foundation for [their] argument that [Rabb] ha[d] a methamphetamine
addiction problem" and the evidence was insufficient "to support a determination that
further questioning on the topic would lead to admissible evidence that was actually
relevant to the subject matter of the case."
Defendants filed a petition for writ of mandate in this court seeking a writ
directing the court to vacate its order denying their motion to compel Rabb's deposition
answers. On March 27, 2014, we stayed all further proceedings in the case and directed
Rabb to file an informal response. Thereafter, we issued an order to the superior court to
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show cause as to why this court should not grant the relief Defendants seek in their
petition.
DISCUSSION
I. Motion to Strike
Rabb filed a motion to strike a portion of the exhibits submitted by Defendants in
support of their writ petition. Specifically, Rabb requested that we strike results from a
drug scan conducted at the University of California, San Diego Health System in January
2011, several months before the accident, showing he tested positive for
methamphetamine. Rabb contends this court should not consider that document because
it was not presented to the trial court. Defendants argue the document was not available
to them before the court denied their request to compel deposition answers and the
information is relevant to show they would be prejudiced as a result of the trial court's
ruling.
California Rules of Court, rule 8.486(b)(1) provides that a petition seeking review
of a trial court ruling must be accompanied by "[a]ll documents and exhibits submitted to
the trial court supporting and opposing the petitioner's position" and "[a]ny other
documents or portions of documents submitted to the trial court that are necessary for a
complete understanding of the case and the ruling under review." (Italics added.) The
rule does not allow for the petitioner to include new evidence not considered by the trial
court. Moreover, "[a]s a general rule, documents not before the trial court . . . must be
disregarded as beyond the scope of appellate review." (Pulver v. Avco Financial Services
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(1986) 182 Cal.App.3d 622, 632.) Accordingly, we grant Rabb's motion to strike and do
not consider documents not presented to the trial court in our review.
II. Motion to Compel Deposition Answers
Defendants contend the trial court erred in denying their motion to compel Rabb's
answers to deposition questions concerning his methamphetamine use and treatment
because that information was relevant to damages and his contributory negligence in the
accident. They also assert Rabb cannot seek civil relief yet to refuse to testify on matters
relevant to his recovery based on the privilege against self-incrimination under the Fifth
Amendment to the United States Constitution.
"[A]ny party may obtain discovery [through the deposition of a party] regarding
any matter, not privileged, that is relevant to the subject matter involved in the pending
action." (Code Civ. Proc., §§ 2017.010, 2025.010.) " ' "No precise or universal test of
relevancy is furnished by the law. The question must be determined in each case
according to the teachings of reason and judicial experience." ' " (Morris Stulsaft
Foundation v. Superior Court (1966) 245 Cal.App.2d 409, 416 (Morris).) "In
determining whether questions asked at a deposition pertain to matters 'relevant to the
subject matter involved in the pending action' [citation] we heed the caveat that the
discovery statutes 'must be construed liberally in favor of disclosure unless the request is
clearly improper by virtue of well-established causes for denial.' [Citations.] . . . [I]t is
not a ground for objection that the information sought to be elicited is not admissible at
trial if it 'appears reasonably calculated to lead to the discovery of admissible evidence.' "
(Id. at p. 417.)
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"It is settled that the writ of mandate is the proper remedy for reviewing discovery
procedures and that the writ may issue not only to enforce a proper discovery right but to
prevent improper discovery." (Morris, supra, 245 Cal.App.2d at p. 415.) With the
foregoing principles in mind, we consider Defendants' arguments.
As a preliminary matter, we note that Defendants devote a significant portion of
their petition to matters outside the scope of our review. Specifically, Defendants discuss
at length an independent medical examination (IME) of Rabb in March 2014. During
that IME, Rabb allegedly refused to discuss the issues of his methamphetamine use,
addiction or treatment and provide blood and urine samples for testing. The IME took
place after the trial court's ruling denying Defendants' motion to compel Rabb's
deposition answers. Based on the record before us, it is unclear as to whether the IME
was ever considered by the trial court. As it is not a part of the court's order subject to
Defendants' petition, we do not consider any issues concerning the IME.
On the issue of causation, the parties disagree as to whether Defendants admitted
complete liability in this case. Rabb contends causation is not a factor in this case
because Defendants admitted full liability whereas Defendants claim they have not
conceded the issue of contributory negligence. If causation is an open factor in this case,
we conclude Defendants made a minimal showing of relevancy in regard to comparative
fault. They presented evidence from two doctors regarding how methamphetamine may
have impacted Rabb's driving on the day of the collision. Specifically, the doctors made
statements that methamphetamine use can cause erratic and impulsive violent behavior
and deficits in cognitive functions. Further, Dr. Smith explained how chronic
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methamphetamine users are unable to follow safety guidelines pertaining to the operation
of a motor vehicle and sustain twice the accident rates of unimpaired drivers. This
evidence was minimally sufficient to show Rabb's methamphetamine use was relevant to
the issue of comparative fault.
We also conclude Defendants showed relevancy as to damages. Dr. Smith opined
that methamphetamine users have increased error rates on the job and Dr. Strauser stated
they have higher unemployment rates. Both doctors stated it was critically important to
question Rabb about his drug usage in order to properly evaluate his health status and
loss of earnings claim. By making a loss of earning capacity claim, Rabb placed his
future earnings at issue and his methamphetamine usage is relevant to a determination of
his damages.
Having found relevancy, we must consider whether Rabb could properly rely on
his Fifth Amendment privilege against self-incrimination to refuse to answer questions
about his methamphetamine usage and any related treatment.
Our review of relevant authority leads us to the conclusion that under these
circumstances, Rabb cannot be permitted to insist on "having his cake and eating it too"
by asserting a claim for negligence and seeking damages for a purportedly large loss of
future earnings while denying Defendants crucial information to evaluate and refute his
claims. (Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 175 (Hartbrodt); Fremont
Indemnity Co. v. Superior Court (1982) 137 Cal.App.3d 554, 560 (Fremont).) Where a
plaintiff puts a factual issue in dispute, he either waives his privilege against self-
incrimination or must forego the issue in dispute. (Fremont, at p. 560 [where plaintiff
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initiated an action to recover under his fire insurance policy, he waived his privilege
against self-incrimination as to factual issues relevant to policy's arson exclusion];
Hartbrodt, at pp. 174-175 [where plaintiff brought action stemming from oral agreement
and had recording of alleged oral agreement but refused to disclose it based on Fifth
Amendment privilege, court forced disclosure of the recording finding that plaintiff
waived privilege against self-incrimination]; Newson v. City of Oakland (1974) 37
Cal.App.3d 1050, 1055 [where plaintiff asserted a claim for lost wages and placed his tax
records at issue, the court rejected plaintiff's assertion of the privilege against self-
incrimination pertaining to his failure to file tax returns].) Courts have enforced similar
waivers of other privileges. For example, in Wilson v. Superior Court (1976) 63
Cal.App.3d 825, 830, the court held that where "plaintiff has placed in issue the existence
and the content of her tax returns and the tax consequences of the computations thereon,"
plaintiff waived the privilege accorded to tax records. Similarly, in City & County of S.F.
v. Superior Court (1951) 37 Cal.2d 227, 231, the court stated a physician-patient
privilege is waived when plaintiff places his physical condition in issue by filing an
action for personal injuries.
Based on the foregoing discussion, we conclude under the circumstances of this
case, Rabb's methamphetamine use and treatment is relevant to his loss of earning
capacity claim and to comparative fault if it is an open issue in the case. Rabb cannot
continue to assert the privilege against self-incrimination to prevent disclosure of this
relevant evidence. Accordingly, Rabb must answer deposition questions related to his
methamphetamine use and treatment.
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DISPOSITION
Let a writ of mandate issue directing the superior court to vacate its January 24,
2014, order denying the motion to compel answers to deposition questions and enter an
order granting the motion. The stay issued on March 27, 2014, is vacated. Defendants
are entitled to costs in the writ proceeding.
MCINTYRE, J.
WE CONCUR:
HALLER, Acting P. J.
MCDONALD, J.
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