Carina Heather Clarke Fairly et al vs Malcolm S Schryer et al

Case Number

21CV00500

Case Type

Hearing Date / Time

Mon, 11/13/2023 - 10:00

Nature of Proceedings

Motion: Compel (7)

Tentative Ruling

FAIRLY v SCHRYER

Case No. 21CV00500

           

Hearing Date: October 13, 2023                                                         

HEARING:              Motions to compel further responses from Carina Fairly to Form Interrogatories, Special Interrogatories, Demands for Production, Requests for Admission

                             Motions to compel further responses from Steven Fairly to Form Interrogatories, Special Interrogatories, Demands for Production,

ATTORNEYS:        For Plaintiffs Carina and Steven Fairly:  Carina and Steven Fairly, In pro per

                                    For Defendant Estate of Malcolm S. Shryer and Diane M. Schryer:  Erin Hallissey, David Lang, of Daniels Fine Israel, Schonbuch & Lebovits LLP 

                                   

TENTATIVE RULING:

Defendant’s motions to compel further responses from Carina Fairly to Form Interrogatories, Special Interrogatories, Demands for Production and Requests for Admission are denied, without prejudice to the filing of future motions to compel responses or further responses to Supplemental Interrogatories and Supplemental Demands for Production, propounded pursuant to CCP sections 2030.070 and 2031.050, as outlined below.

Defendant’s motions to compel further responses from Steven Fairly to Form Interrogatories, Special Interrogatories, and Demands for Production are granted in part, and denied in part, as specified below.

The parties are instructed to appear at the hearing, and to be prepared to discuss the issues set forth below.

Background:

This action arises from a motor vehicle accident that occurred on February 19, 2019, on eastbound State Highway 192, involving Plaintiff Carina Fairly and Defendants Malcolm S. Schryer and Diane M. Schryer. (Note: Because parties in this matter share common surnames, the court may refer to the parties, individually, by their first names. No disrespect is intended.)  Plaintiffs’ First Amended Complaint (FAC) alleges that the Schryers were traveling in the right-hand lane; that Carina Fairly was traveling in the middle lane; and that Malcolm Schryer’s use of a hand-held device while driving caused him to swerve his vehicle from the right-hand lane into the middle lane, striking the vehicle driven by Carina Fairly. Malcolm previously admitted that the collision was his fault. (FAC, at ¶¶ 15, 22.)

Plaintiffs allege that the collision caused Carina to suffer a concussion and other bodily injuries including head, back, neck, shoulders, arms and legs, and spinal damage, nerve damage, and deep tissue damage (FAC, at ¶ 16.); and that Carina is now permanently disabled as a result of the collision. (Id. at ¶ 17.)  Carina asserts causes of action for negligence against the Shryers, and seeks general damages for her personal injuries, and special damages for her past and future medical expenses, lost wages and loss of future earning capacity.  Steven Fairly asserts a cause of action for loss of consortium, and seeks damages for the loss of Carina’s support resulting from her permanent injuries and for other non-economic aspects of plaintiffs’ marital relationship.

On October 21, 2020, prior to the filing of the complaint, Malcolm died. (Id. at ¶ 4.) Sometime after the filing of the complaint, Diane also died.  Malcolm

and Diane were insured through USAA for the claims made by Carina and Steven, and in the early stages of this action Malcolm and Diane were represented by cumis counsel hired by USAA, Ms. Huey.  Ms. Huey propounded a first set of discovery to Carina, consisting of Form Interrogatories, Special Interrogatories, Requests for Production and Requests for Admission. An email dated December 1, 2021 from Carina’s former counsel, Cappello & Noel, to Ms. Huey indicates that Carina’s responses to this first set of discovery were served on that date. (Declaration of Carina Fairly ISO opposition to the motions to compel, Ex.1).  No motions to compel were filed to challenge Carina’s responses to this first set of discovery. The court notes that defense counsel infers that she is in possession of some of Carina’s medical records, presumably from Ms. Huey’s file. (see Separate Statement ISO Motion to Compel further responses to DFP from Carina, p. 3, 23-27)

On January 30, 2023, Steven’s motion to allow the matter to proceed pursuant to Probate Code section 550 et seq. was granted.  Under this section an action to establish liability of a decedent who was protected by insurance may be continued against the decedent’s estate without requiring that the decedent’s personal representative or successor in interest be joined as a party. In ruling on Steven’s motion the court stated:

The court will deem this action to name as the defendants the “Estate of Malcolm S. Shryer, Deceased, and Diane M. Schryer, Deceased.” USAA may deny or otherwise contest its liability in this action. Unless a personal representative is joined as a party, any judgment that may be rendered in this action shall not adjudicate any rights by or against either or both Malcom and Diane’s estate. Subject to the conditions set forth in Probate Code section 554, damages sought by Steven in this matter shall be within the limits and coverage of the insurance, and recovery of damages outside the limits or coverage of the insurance shall be waived. Any judgment in favor of Steven in this action shall be enforceable only from the insurance coverage and not against property in either or both Malcolm or Diane’s estate, subject to the conditions stated in Probate Code section 554.

Carina later stipulated that her claims would also proceed under Probate Code 550 et seq. Pursuant to Probate Code section 552, the action as to both Carina and Steven has therefore proceeded against the “Estate of Malcolm S. Shryer, Deceased, and Diane M. Schryer, Deceased”, and the summons was served on the insurer, USAA, who is now represented by Erin Hallissey and David Lang of the law firm Daniels Fine Israel Schonbuch & Lebovits, LLP.  USAA has admitted liability, and that “causation and damages are the only issues remaining for the trier of fact”. (Defendant’s MPAs ISO Motions to Compel, p. 3: 10-12).   

On June 9, 2023, USAA served a first set of discovery on both Carina and Steven.   As with the previous first set of discovery served on Carina by Ms. Huey, this set of discovery consisted of Form Interrogatories, Special Interrogatories, Demands for Production and Requests for Admissions.  Plaintiffs’ responses consist almost entirely of objections. Defendant now moves to compel further responses to this first set of discovery from both Carina and Steven on the basis that plaintiffs “failed to respond at all to properly propounded” form and special interrogatories, requests for production and requests for admission.

  

Analysis:

The motions to compel further responses from Carina Fairly

The court is not persuaded by Defendant’s assertion that it may serve a second “first set” of discovery on Carina, despite the fact that her previous responses to this same discovery went unchallenged, because the Estate is a “new” defendant. Probate Code section 552 provides that “Further proceedings shall be in the name of the estate, but otherwise shall be conducted in the same manner as if the action were against the personal representative.” A personal representative stands in the shoes of the defendant.  The court therefore views this section as preventing the duplication of discovery previously served by the original defendant.  The Court therefore denies the motions to compel as to Carina, without prejudice, as outlined below.

The court has reviewed the Separate Statements filed with respect to Carina’s discovery responses.   Although her response to Form Interrogatory 17.1 appears to list her medical providers, Carina has otherwise refused to provide her medical records and information related to her medical history and damages without a protective order; and has further refused to provide information related to her claim of property damage until “the time required by law or applicable court order”.  This information is necessary for the defense to evaluate Carina’s damages.  To the extent that defendant is in possession of medical records previously provided to Ms. Huey, there is a need to update the records.  The Court therefore denies the motions to compel as to Carina without prejudice to the filing of future motions to compel responses or further responses to Supplemental Interrogatories and Supplemental Requests for Production seeking this same information, and propounded pursuant to CCP sections 2030.070 and 2031.050; provided, however, that the supplemental discovery is  tailored to seek information related to Carina’s claims of damage.   In the event that such motions become necessary, the Court will entertain a good cause showing under sections 2030.070(c) and 2031.050(c) for the need of more than one interrogatory and request for production in order to obtain the information necessary to properly evaluate Carina’s damage claims.  

The motions to compel further responses from Steven Fairly

Although Steven has objected to this discovery as being duplicative, there is nothing before the court to indicate that he was previously served with, and responded to this first set of discovery.  The motions to compel as to Steven are therefore granted in part, and denied in part, as follows.

The motions are granted as to the following Form Interrogatories, Special Interrogatories and Demands for Production, as they seek permissible background information and information related to his damage claim.   Steven is to serve code complaint and verified responses to the following discovery within 30 days:

Form Interrogatories

Nos. 1.1 (name, address, phone number of person who prepared responses);

2.1 (names used in past 5 years, and dates used);  2.2 (date and place of birth);  2.5 (residence address in last 5 years); 2.6 (name and address of employer for past 5 years); 2.7 (schools attended); (2.8 (felony convictions); 2.9 and 2.10 (facility with English language); 7.1 (property damage);  7.2 (estimate or evaluation of property damage); 7.3 (repairs to property damage); 8.1 (loss of income or earning capacity due to accident); 8.2-8.8 (information related to any loss of income or earning capacity); 9.1 and 9.2 (other damages related to the accident, and documents that support);.

Special interrogatories

Nos. 1 (whether lived with Carina at time of accident); 2 (date and place of marriage to Carina); 3, 4 ( children by present or former marriages, and names, ages and addresses); 5 (how often per month plaintiffs went together to movie or dinner); 6 (entertainment and activities plaintiffs participated in together prior to accident); 7 (all vacations plaintiffs took in 3 years preceding accident); 8, 9  (number of times per week plaintiffs engaged in sexual intercourse 3 years before, and  after accident; 10, 11 (medical professionals trained in marriage, sexual, or emotional counseling that plaintiffs treated with prior to accident);  12, 13 (any separations prior and subsequent to accident, dates, reasons for); 14, 15 (claims of additional household responsibilities as result of Carina’s injuries, type, hours spent performing); 16, 17 (changes in Carina’s personality, mood, emotional state since accident; and how the changes have affected his life);; 18, 19 (whether Carina has been bedridden as result of accident and for how long); 20, 21 (number of hours per day spent with Carina before and after the accident); 22, 23 (whether either plaintiff ahs filed complaint for physical abuse with a governmental agency in last 10 years, and if so details of complaint); 25  (how Carina’s injuries have prevented him from sharing “hobbies, sports, games, cultural, vocational, and other interests” shared with Carina prior to the accident); 26, 27, 28  (whether plaintiffs have hired  or made use of a cleaning person, maid, babysitter, or other domestic worker subsequent or prior to the accident, and if so names, address of person hired, number of hours, rate of pay); 28 (contact information of all persons with information regarding his claim for loss of consortium.)   

Demands for production  

Nos.1 (documents pertaining to general damages); 2-7 (documents relating to Carina’s ability to perform duties and emotional state prior and subsequent to the accident); 8, 9 (records of therapists seen by Carina and Steven for emotional/sexual counseling prior and subsequent to the accident); 11 (documents relating to complaints of physical abuse by Carina or Steven);13 (documents evidencing additional household chores incurred as result of accident); 14 (documents supporting loss of consortium claim); 15, 16 (documents referenced in responses to form and special interrogatories).

The motion to compel further responses from Steven to Special Interrogatories is denied as to the following interrogatories, on the basis that they are internally duplicative:

           

Special Interrogatory No. 24 (“hobbies, sports, games, cultural, vocational, and other interests” shared with Carina prior to accident).  This is duplicative of No. 6 (“entertainment or activities, such as movies, theatre, spectator sporting events” plaintiffs participated in together prior to the accident).

Special Interrogatory No. 29 (children’s names, age, address, phone number, biological parent.   This is duplicative of Nos. 3 and 4 (name, date of birth, present address, and name of the natural parent of children by present or former marriage).

The motions to compel further responses from Steven to Form Interrogatories and Demands for Production are denied as to the following interrogatories and demands, on the basis that they do not relate to Steven’s claim for loss of consortium damages, or ask for information regarding the “incident” in which Steven was not involved:

Form interrogatories:

Nos. 2.3 (driver’s license at the time of the incident: 2.4 (other permits to operate a vehicle at time of incident); 2.11(was he acting within scope of agency/employment at time of incident); 2.12. (physical or emotional injuries that may have contributed to the incident); 2.13 (use of drugs/alcohol within 24 hours of incident); 4.1 (insurance coverage); 4.2 (self-insurance); 6.1 (physical, emotional or mental injuries attributed to the incident); 6.2 (injury/areas of body attributed to incident); 6.3 (does he still have complaints attributed to the incident); 6.4 (treatment/consultation from health care provider for injuries attributed to the incident); 6.5 (medications prescribed as result of injuries attribute to the incident); 6.6 (other medical services  necessitated by injuries attributed to the incident); 6.7 (whether health care provider has advised of need for future treatment for injuries attributed to the incident); 10.1-10.4 (prior and subsequent injuries to same body parts injured in incident); 11.1-11.2 (past claims for personal injuries or worker’s compensation); 12.1-12.7 (witnesses to incident, interviews/written statements, reports, inspections, photos/diagrams of scene).

Demands for Production

No, 12 (legal actions for bodily injuries in past 10 years).

The motion to compel a further response to Form Interrogatory 17.1 is denied on the basis that Steven has provided the requested information as to each request for admission which was not an unqualified admission.  The fact that he has provided information as to additional requests for admission does not make his response deficient.

  

The parties are ordered to appear

The court notes from the parties’ respective pleadings on these motions that both parties express   a desire for  the  expeditious  completion of discovery; that after Carina’s motion for a protective order under HIPPA was denied, she offered a release of her medical records that are under a subpoena  (see Declaration of Carina Fairly ISO opposition to motions to compel, Ex. 1, October 11, 2023 letter to Ms. Hallissey); that Ms. Hallissey previously agreed to, and apparently drafted a protective order for Carina’s medical records, but her client, USAA now refuses to be bound to a protective order (See Declaration of Erin Hallissey, parags. 7-9); and that Ms. Hallissey also agreed recently that a “sensitive” medical record of Carina’s could be redacted (Declaration of Erin Hallissey, parag. 6).  While this shows some movement on the part of both parties toward a resolution of this discovery dispute, the failure to act on or formalize these agreements and offers has caused discovery to come to a halt.    

In an effort to facilitate the parties expressed desire to move this case forward, the court directs the parties to appear at the hearing, and to be prepared to address the following issues:

• Plaintiff should be prepared to discuss whether she is willing to execute a formal release of her medical records;
• Defense counsel should be prepared to discuss whether defendant will stipulate to either (1) the previously agreed to and drafted protective order for Carina’s medical records, and if not, a full explanation as to why her client refuses to be bound by the protective order; or (2) a redaction of the “sensitive” medical record, as previously agreed in a meeting with Plaintiffs. 
• Defense counsel should come to the hearing with a formal Release of Carina’s medical records in the event that Carina agrees to stipulate to the release at the hearing.