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



                                               5
(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

                                              7
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.

                                               9
                                       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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