MOHAMMED HANIFF, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; JAMES HOHMAN et al., Real Parties in Interest.
No. H043345
Sixth Dist.
Mar. 1, 2017
9 Cal. App. 5th 191
COUNSEL
Jones Clifford, J. Kevin Morrison, Joshua D. White and Ross J. Psyhogios for Petitioner.
No appearance for Respondent.
McDowell Shaw Garcia & Mizell, David A. McDowell and Shelley O‘Connor for Real Parties in Interest, James Hohman and Moonhee Kim.
Keith C. Bower for Real Party in Interest Leland Stanford Junior University.
BAMATTRE-MANOUKIAN, J.—
I. INTRODUCTION
Petitioner Mohammed Haniff was seriously injured during a motor vehicle accident that occurred while he was working as a package delivery truck
In 2013 Haniff brought a personal injury action against three defendants: James Hohman, the driver of the other vehicle involved in the accident; Moonhee Kim, the alleged owner of the other vehicle involved in the accident; and Stanford University. During the course of discovery, real parties in interest Hohman and Kim filed a motion for an order compelling Haniff to undergo a vocational rehabilitation examination by their vocational expert. The trial court granted the motion in its February 18, 2016 order.
Haniff challenged the order by filing a petition for writ of mandate in this court. In his petition, Haniff argues that the trial court abused its discretion because a defense vocational rehabilitation examination is not one of the six methods of civil discovery expressly authorized by the Civil Discovery Act (
We will therefore issue a peremptory writ of mandate directing the trial court to vacate its February 18, 2016 order and to enter a new order denying the motion for an order compelling Haniff to undergo a vocational rehabilitation examination.
II. FACTUAL AND PROCEDURAL BACKGROUND
Haniff was employed by OnTrac-CA as a package delivery truck driver when he was injured in a motor vehicle accident on November 14, 2012. The accident occurred while Haniff was unloading packages from his parked truck on the campus of Stanford University. According to Haniff, an automobile owned by Kim and parked by Hohman, a Stanford University employee, rolled down a hill and struck Haniff. As a result of the accident, Haniff sustained multiple fractures of his right femur and pelvis and underwent surgery. He has not returned to work since the date of the accident.
In September 2013 Haniff filed a personal injury complaint naming Hohman and Kim as defendants. The record reflects that the complaint was
Haniff was examined by an orthopedic surgeon, Curtis P. Comstock, M.D., at the request of Stanford University. In his October 26, 2015 report, Dr. Comstock stated his opinions that Haniff‘s fractures had healed and, although Haniff had not returned to work since the accident, there was “no medical contraindication” to Haniff obtaining gainful employment.
A. The Motion to Compel a Vocational Rehabilitation Examination
In September 2015 defendants Hohman and Kim served a “demand for vocational rehabilitation examination” on Haniff. The demand stated that the examination would be conducted on October 15, 2015, by Gregory Sells, a vocational rehabilitation counselor, and would consist of the following: “[A]n interview and administration of written examination, including interest testing and aptitude testing to examine plaintiff with respect to his employment history, prospects and interests. Plaintiff MOHAMMED HANIFF should allow 2 hours for the examination.” Haniff objected to the demand for a vocational rehabilitation examination on the ground, as stated in his meet and confer letter, that the Code of Civil Procedure did not authorize a defense vocational rehabilitation examination.
In January 2016 defendants Hohman and Kim filed a motion for an order compelling Haniff to undergo a vocational rehabilitation examination. In support of their motion, they argued that good cause existed for a defense vocational rehabilitation examination because Haniff had claimed he was unable to hold gainful employment and had made “extensive” wage loss and loss of earning capacity claims. Hohman and Kim also argued that authority for a vocational rehabilitation examination was provided by “the broad discovery authority” of
B. The Trial Court‘s Order
The trial court granted the motion to compel Haniff to undergo a vocational rehabilitation examination in its February 18, 2016 order. During the hearing on the motion, the court stated that the decision in Browne, supra, 98 Cal.App.3d 610 did not control because it was distinguishable. The court was also concerned about due process, stating: “[I]t‘s fundamentally unfair for the plaintiffs to have to rely solely on your voc rehab [sic] expert . . . the defendants should be given an opportunity to hire their own expert to conduct the voc rehab [sic] examination the way that person wants to do it. There could be apples and oranges between the way the two voc rehab [sic] experts administer their exam[s]. So it was a concern of mine.”
C. Petition for Writ of Mandate
Haniff filed a petition for writ of mandate in which he sought a writ commanding the trial court to vacate its order compelling him to undergo a vocational rehabilitation examination. He also requested a temporary stay of the trial court‘s February 18, 2016 order. This court issued a temporary stay and an order to show cause why a peremptory writ should not issue as requested in the petition for writ of mandate, and afforded the parties the opportunity for further briefing and oral argument.
III. DISCUSSION
A. Availability of Writ Review
Writ review of discovery orders is rarely granted unless the discovery order may undermine a privilege, or it is necessary to answer questions of first impression. (Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185–186 [23 Cal.Rptr. 375, 373 P.2d 439]; Raytheon Co. v. Superior Court (1989) 208 Cal.App.3d 683, 686 [256 Cal.Rptr. 425].) Thus,
In this case, writ review is appropriate to address a question of general importance in personal injury cases involving claims for wage loss and loss of earning capacity: Whether the trial court may compel the plaintiff to undergo a defense vocational rehabilitation examination although that is not one of the methods of discovery expressly authorized in the Civil Discovery Act (
B. Standard of Review
“The standard of review generally applicable to review of discovery orders is abuse of discretion, as management of discovery lies within the sound discretion of the trial court. [Citations.]” (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123 [52 Cal.Rptr.3d 185] (Britts).) “In particular, the abuse of discretion standard of review ordinarily applies to review of an order on a motion to compel discovery [citation].” (Ibid.)
However, “‘[t]he discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown.’ [Citations.] ‘The scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action . . . .” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion. [Citation.]‘” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 [149 Cal.Rptr.3d 614, 288 P.3d 1237] (Sargon).)
Statutory interpretation involves purely legal questions to which we apply the independent standard of review. (Burden v. Snowden (1992) 2 Cal.4th 556, 562 [7 Cal.Rptr.2d 531, 828 P.2d 672].) Thus, “where the propriety of a discovery order turns on statutory interpretation, an appellate court may determine the issue de novo as a question of law. [Citation.]” (Britts, supra, 145 Cal.App.4th at p. 1123.)
C. Analysis
Haniff‘s primary argument is that writ relief is necessary to correct the trial court‘s abuse of discretion in ordering him to undergo a defense vocational
1. Statutory Limits on Discovery
“[A]fter the adoption of the 1957 statutes dealing with civil discovery, our courts lack the power to order discovery beyond that permitted by the statutes. [Citations.]” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 650 [17 Cal.Rptr.3d 368] (Cruz) [former § 2032, subd. (a) establishes only three statutory categories of persons who are subject to physical examination]; see also Roe v. Superior Court (2015) 243 Cal.App.4th 138, 144 [196 Cal.Rptr.3d 317] (Roe) [§ 2032.020 establishes only three categories of persons subject to mental examination]; Holm v. Superior Court (1986) 187 Cal.App.3d 1241, 1248 [232 Cal.Rptr. 432] [discovery statutes do not provide for exhumation of human remains]; Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 123 Cal.App.3d 840, 849 [176 Cal.Rptr. 874] [allowing informal interviews of defendant‘s employees would extend the Civil Discovery Act beyond its statutory text]; Bailey v. Superior Court (1977) 19 Cal.3d 970, 974 [140 Cal.Rptr. 669, 568 P.2d 394] (Bailey) [former § 2019, subd. (e) did not provide for videotaping of depositions]; Edmiston v. Superior Court (1978) 22 Cal.3d 699, 702 [150 Cal.Rptr. 276, 586 P.2d 590] [former § 2032, subd. (b)(1) did not authorize videotaping a medical examination because only a written report was expressly authorized].)
The California Supreme Court‘s decision in Emerson Electric, supra, 16 Cal.4th 1101 also indicates that civil discovery cannot be expanded beyond the statutory limits. Referring to its prior decision in Bailey, supra, 19 Cal.3d 970, the court stated: “We concluded [in Bailey] that the Code of Civil Procedure did not permit videotaped depositions without the mutual consent of the parties. [Citation.] We emphasized that ‘[w]hether this court believes videotaping is as reliable as, or more advantageous than, the traditional means of recording a deposition is not the issue.’ [Citation.] We explained that it was for the Legislature to determine whether methods of recording and reporting depositions other than stenographic and written transcriptions should be authorized. [Citation.] By amending the discovery statutes to permit videotaped depositions, the Legislature expressly so determined.” (Emerson Electric, supra, at p. 1109.)
A defendant‘s demand for a vocational rehabilitation examination of the plaintiff was addressed in Browne, supra, 98 Cal.App.3d 610, where the appellate court determined that the demand exceeded the statutory limits. In Browne, the plaintiff claimed future wage loss due to his injuries in an automobile-motorcycle accident. (Id. at p. 612.) The defendants filed a
Since it is well established that California courts lack the power to order civil discovery by a method that is not authorized by the Code of Civil Procedure (see, e.g., Cruz, supra, 121 Cal.App.4th at p. 650), we next consider whether
2. Section 2019.010
To determine whether
“In other words, ’ “we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ [Citation.]“’ [Citation.] If the statutory terms are ambiguous, we may examine extrinsic sources, including the ostensible objects to be achieved and the legislative history. [Citation.] In such circumstances, we choose the construction that comports most closely with the Legislature‘s apparent intent, endeavoring to promote rather than defeat the statute‘s general purpose, and avoiding a construction that would lead to absurd consequences. [Citation.]” (Smith, supra, 39 Cal.4th at p. 83.)
Following these rules, we first examine the statutory language in question. The plain language of
Two additional rules of statutory interpretation also aid our interpretation of
Second, “insert[ing]” additional language into a statute “violate[s] the cardinal rule of statutory construction that courts must not add provisions to statutes. [Citations.]” (People v. Guzman (2005) 35 Cal.4th 577, 587 [25 Cal.Rptr.3d 761, 107 P.3d 860] (Guzman).) ” ‘This rule has been codified in
We may also ” ‘examine the history and background of the statutory provision in order to ascertain the most reasonable interpretation of the measure.’ [Citation.]” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 543 [67 Cal.Rptr.3d 330, 169 P.3d 559].) Even where, as here, “the plain language of the statute dictates the result,” the legislative history may provide additional authority confirming the court‘s interpretation of the statute. (Id. at p. 544.) Having reviewed the available legislative history of
The legislative history for former section 2019 includes, for example, the Assembly third reading analysis of Assembly Bill No. 169, as amended on January 25, 1986, which notes that this bill “[a]uthorizes discovery by: (a)
We therefore determine under the rules of statutory interpretation that
Hohman and Kim argue to the contrary that the trial court did not abuse its discretion by expanding discovery beyond its statutory limits, for several reasons. To begin with, Hohman and Kim argue that there is good cause for a nonphysical vocational rehabilitation examination because Haniff has claimed he cannot work despite Dr. Comstock‘s finding that there is no medical reason barring Haniff from obtaining gainful employment. Hohman and Kim rely on the decision in Johnston v. Southern Pacific Co. (1907) 150 Cal. 535 [89 P. 348] (Johnston) for the proposition that the trial court has the inherent power to allow the defendant‘s expert to examine the plaintiff, in order to counter the plaintiff‘s expert and to allow the defendant to prepare for trial. They also argue that a defense vocational rehabilitation examination is proper because their expert should have equal access to Haniff as a matter of due process.
We do not find these arguments persuasive. Hohman and Kim have provided no authority for the proposition that the Legislature‘s statutory limits on the methods of discovery, as set forth in
Moreover, the 1907 decision in Johnston has no application here. The Johnston court ruled that the trial court had the inherent power to compel a personal injury plaintiff to undergo to a defense physical examination in the absence of a controlling statute. (Johnston, supra, 150 Cal. at pp. 541–542.) Johnston was obviously decided prior to the 1957 enactment of former section 2032, which provided statutory authority for physical and mental examinations in California. (Stats. 1957, ch. 1904, § 3, p. 3322.)
3. Lee v. Superior Court
Hohman and Kim also contend that the appellate court in Lee v. Superior Court (2009) 177 Cal.App.4th 1108 [99 Cal.Rptr.3d 712] (Lee) rejected the argument that
Lee concerned the scope of discovery in a civil commitment proceeding under the Sexually Violent Predators Act (SVPA;
The Lee court determined that the subpoenas duces tecum issued by the district attorney were ineffective in the absence of a declaration containing a sufficient statement of materiality, as required by
The decision in Lee therefore specifically concerned the district attorney‘s authority under Welfare and Institutions Code section 6603, subdivision (c)(1) to obtain a defendant‘s medical and psychological records in an SVPA proceeding. The Lee court did not address the methods of civil discovery that are available under
4. Section 2017.010
Alternatively, Hohman and Kim contend that a defense vocational rehabilitation examination is authorized under
Haniff responds that
Thus,
Accordingly, since
5. Other Decisions
Hohman and Kim additionally contend that the trial court properly determined that a defense vocational rehabilitation examination may be ordered pursuant to the persuasive decisions of the state courts of New York, the Workers’ Compensation Appeals Board, and California appellate decisions regarding mental competency hearings. As we will discuss, we do not find that these decisions apply in the present case.
The New York decision that Hohman and Kim rely upon is a decision of the New York Supreme Court‘s appellate division, Smith v. Manning (N.Y.App.Div. 2000) 277 A.D.2d 1004 [716 N.Y.S.2d 844], in which the trial court ordered the plaintiff in a personal injury action to undergo an examination by a nonphysician vocational rehabilitation specialist in the absence of express statutory authorization for the examination. The Smith v. Manning court relied upon an appellate decision, Kavanagh v. Ogden Allied Maintenance Corp. (Ct.App. 1998) 92 N.Y.2d 952 [683 N.Y.S.2d 156, 705 N.E.2d 1197], which stated: “Although the plain language of CPLR [Civil Practice Law and Rules] 3121(a) authorizes physical or mental examinations ‘by a designated physician,’ and defendant‘s vocational rehabilitation expert was not a medical doctor, CPLR 3121 does not limit the scope of general
We do not find these New York state court decisions persuasive, since we have already determined that the California appellate courts have consistently ruled that the trial courts may not expand the methods of civil discovery beyond those expressly permitted by statute. (See, e.g., Cruz, supra, 121 Cal.App.4th at p. 650; Roe, supra, 243 Cal.App.4th at p. 144; Browne, supra, 98 Cal.App.3d at p. 615.) The decisions of other jurisdictions involving similar statutes may be of ” ‘great value‘” to the California courts where, unlike here, there is no California case directly on point. (RSL Funding, LLC v. Alford (2015) 239 Cal.App.4th 741, 746 [190 Cal.Rptr.3d 917].)
The decisions of the Workers’ Compensation Appeals Board are also unpersuasive in the civil discovery context. For example, Hohman and Kim rely on the decision in Holz, v. Workers’ Comp. Appeals Bd. (2013) 78 Cal.Comp.Cases 484 (Holz), in which the Workers’ Compensation Appeals Board ordered the injured worker to attend a vocational rehabilitation evaluation despite the lack of express statutory authority for a vocational expert evaluation in a workers’ compensation case. (Id. at p. 486.) However, the board found authority for its order in
The Baqleh court further determined that under
6. Conclusion
Since a vocational rehabilitation examination is not one of the civil discovery methods authorized by
IV. DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate the February 18, 2016 order granting the motion for an order compelling Mohammed Haniff to undergo a vocational rehabilitation examination and to enter a new order denying the motion. Upon finality of this decision, the temporary stay order is vacated. Costs in this original proceeding are awarded to petitioner Mohammed Haniff.
Premo, Acting P. J., and Mihara, J., concurred.