The opinion
Filed 3/1/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
MOHAMMED HANIFF, H043345
(Santa Clara County
Petitioner, Super. Ct. No. 2013-1-CV252992)
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
JAMES HOHMAN et al.,
Real Parties in Interest.
I. INTRODUCTION
Petitioner Mohammed Haniff was seriously injured during a motor vehicle
accident that occurred while he was working as a package delivery truck driver on the
Stanford University campus in 2012. He has not returned to work since the date of the
accident.
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 (Code Civ. Proc., § 2016.010 et seq.)1
For the reasons stated below, we agree. The contention that a defense vocational
rehabilitation examination should be an available discovery method as a matter of
fundamental fairness where the plaintiff seeks compensatory damages for wage loss and
loss of earning capacity is better addressed to the Legislature. (See, e.g., Emerson
Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1109 (Emerson Electric).)
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 later amended to add
Stanford University as a defendant. Haniff seeks compensatory damages for, among
other things, wage loss and loss of earning capacity.
1
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
2
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 section 2017.010;2 the inherent authority of the court
2
Section 2017.010 provides: “Unless otherwise limited by order of the court in
accordance with this title, any party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the pending action or to the
(continued)
3
to allow a defense vocational rehabilitation examination in order to avoid injustice; and
the persuasive decisions of other jurisdictions in which a defense vocational rehabilitation
examination is allowed.
Haniff opposed the motion to compel him to undergo a vocational rehabilitation
examination, arguing that there was no provision in the Civil Discovery Act (§ 2016.010
et seq.) that would permit a defendant to obtain an oral examination of a plaintiff by a
vocational rehabilitation expert. He relied on the decision in Browne v. Superior Court
(1979) 98 Cal.App.3d 610 (Browne) for the proposition that the trial court cannot compel
a vocational rehabilitation examination by an unlicensed expert because that method of
discovery has no statutory authorization. In addition, Haniff argued that defendants had
not shown good cause for a defense vocational rehabilitation examination because they
could review his vocational rehabilitation expert’s notes and records and cross-examine
the expert at trial.
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.
determination of any motion made in that action, if the matter either is itself admissible in
evidence or appears reasonably calculated to lead to the discovery of admissible
evidence. Discovery may relate to the claim or defense of the party seeking discovery or
of any other party to the action. Discovery may be obtained of the identity and location
of persons having knowledge of any discoverable matter, as well as of the existence,
description, nature, custody, condition, and location of any document, electronically
stored information, tangible thing, or land or other property.”
4
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;
Raytheon Co. v. Superior Court (1989) 208 Cal.App.3d 683, 686. Thus, “[w]rit review
is . . . appropriate to address ‘questions of first impression that are of general importance
to the trial courts and to the [legal] profession, and where general guidelines can be laid
down for future cases.’ ” (People v. Superior Court (Mouchaourab) (2000) 78
Cal.App.4th 403, 413; Toshiba America Electronic Components v. Superior Court
(2004) 124 Cal.App.4th 762, 767 [same].)
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 (§ 2016.010 et seq.).
5
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
(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 (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.) 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 rehabilitation
examination, which he asserts is not one of the methods of civil discovery authorized by
section 2019.010. We will begin our analysis with an overview of the statutory limits on
discovery.
6
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 (Cruz) [former section 2032,
subdivision (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
(Roe) [section 2032.020 establishes only three categories of persons subject to mental
examination]; Holm v. Superior Court (1986) 187 Cal.App.3d 1241, 1248 [discovery
statutes do not provide for exhumation of human remains]; Volkswagenwerk
Aktiengesellschaft v. Superior Court (1981) 123 Cal.App.3d 840, 849 [allowing informal
interviews of defendant’s employees would extend the Discovery Act beyond its
statutory text]; Bailey v. Superior Court (1977) 19 Cal.3d 970, 974 (Bailey) [former
section 2019, subdivision (e) did not provide for videotaping of depositions]; Edmiston v.
Superior Court (1978) 22 Cal.3d 699, 702 [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
7
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 a automobile-motorcycle accident. (Id. at
p. 612.) The defendants filed a motion to compel the plaintiff to submit to an interview
and physical examination and/or testing by a vocational rehabilitation expert who was not
a licensed physician. (Id. at pp. 612-613, 615.) The defendants argued that a vocational
rehabilitation examination was authorized under former section 2032, subdivision (a), 3
which provided for a physical examination by a physician where the party’s mental or
physical condition was at issue. (Id. at pp. 612-613.) The Browne court concluded that
the trial court had abused its discretion in granting the motion, as follows: “To read into
the governing statute authority to conduct a physical examination by a nonphysician
would subvert the express legislative policy that such physical examinations be
conducted only by a physician . . . . [Citations.] [¶] Since the proposed examiner is
neither a licensed physician nor surgeon, no affirmative legislative authority exists for the
ordered physical examination of petitioner. [Citation.]” (Id. at p. 615.) The court
concluded that “[w]hether such an examination by a qualified vocational rehabilitation
3
Former section 2032, subdivision (a) provided in pertinent part: “In an action in
which the mental or physical condition or the blood relationship of a party, or of an agent
or a person in the custody or under the legal control of a party, is in controversy, the court
in which the action is pending may order the party to submit to a physical or mental or
blood examination by a physician or to produce for such examination his agent or the
person in his custody or legal control. The order may be made only on motion for good
cause shown and upon notice to the person to be examined and to all parties and shall
specify the time, place, manner, conditions, and scope of the examination and the person
or persons by whom it is to be made.”
8
counselor should be permitted in the first instance is a matter for the Legislature to
determine and not the courts. [Citation.]” (Id. at p. 616.)
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 section 2019.010 may
be construed to authorize a vocational rehabilitation examination as a method of civil
discovery.
2. Section 2019.010
Section 2019.010 sets forth six methods of civil discovery: “Any party may obtain
discovery by one or more of the following methods: [¶] (a) Oral and written depositions.
[¶] (b) Interrogatories to a party. [¶] (c) Inspections of documents, things, and places.
[¶] (d) Physical and mental examinations. [¶] (e) Requests for admissions. [¶]
(f) Simultaneous exchanges of expert trial witness information.”
To determine whether section 2019.010 may be construed to authorize a
vocational rehabilitation examination as a method of civil discovery, we apply the well
established rules of statutory interpretation. “[O]ur fundamental task is to ascertain the
Legislature’s intent so as to effectuate the purpose of the statute. [Citation.] We begin
with the language of the statute, giving the words their usual and ordinary meaning.
[Citation.] The language must be construed ‘in the context of the statute as a whole and
the overall statutory scheme, and we give “significance to every word, phrase, sentence,
and part of an act in pursuance of the legislative purpose.” ’ [Citation.]” (Smith v.
Superior Court (2006) 39 Cal.4th 77, 83 (Smith).)
“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
9
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 section 2019.010 expressly authorizes only six specific methods of
discovery: (1) oral and written depositions; (2) interrogatories to a party; (3) inspections
of documents, things, and places; (4) physical and mental examinations; (5) requests for
admissions; and (6) simultaneous exchanges of expert trial witness information. On its
face, section 2019.010 does not provide that a vocational rehabilitation examination is
one of the permitted methods of discovery. Section 2019.010 also lacks a provision
authorizing the trial courts to compel a party to submit to a method of discovery not
expressly permitted in the statute.
Two additional rules of statutory interpretation also aid our interpretation of
section 2019.010. First, “ ‘[a] “familiar rule of construction is that where a statute
enumerates things upon which it is to operate it is to be construed as excluding from its
effect all those not expressly mentioned.” [Citations.]’ [Citation.]” (Wright v. City of
Santa Clara (1989) 213 Cal.App.3d 1503, 1507.) Under this rule of statutory
interpretation, a vocational rehabilitation examination is excluded as a method of
discovery since a vocational rehabilitation examination is not one of the discovery
methods enumerated in section 2019.010.
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 (Guzman).) “ ‘This rule has been codified
in California as [Code of Civil Procedure] section 1858, which provides that a court must
not “insert what has been omitted” from a statute.’ [Citation.]” (Ibid.) In other words,
“ ‘ “[t]his court has no power to rewrite the statute so as to make it conform to a
10
presumed intention which is not expressed.” [Citations.]’ [Citation.]” (Roe, supra, 243
Cal.App.4th at p. 144.) Under this rule of statutory construction, we may not construe
section 2019.010 to authorize a vocational rehabilitation examination or to authorize the
trial court to compel a party to undergo a method of civil discovery not expressly
mentioned in the statute. Such a construction would improperly add provisions to the
statute. (See Guzman, supra, 35 Cal.4th at p. 587.)
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.) 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 section 2019.010, we find it confirms our
plain language interpretation of the statute.
Section 2019.010 was enacted as part of the 2004 Civil Discovery Act and
continued former section 2019, subdivision (a)4 without change. (Stats. 2004, ch. 182,
§ 23; Recommendation: Civil Discovery: Nonsubstantive Reform (Sept. 2003) 33 Cal.
Law Revision Com. Rep. (2003) p. 823.) Former section 2019, subdivision (a) was
enacted as part of the Civil Discovery Act of 1986, which was a comprehensive revision
of the law governing discovery in civil cases. (Stats. 1986, ch. 1334, § 2; see Toyota
Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1119.) The 2004 Civil
Discovery Act “reorganized and renumbered the provisions of the Civil Discovery Act of
1986, but the 2004 Act was not intended to effect any substantive changes in the law.
4
Former section 2019, subdivision (a) provided: “(a) Any party may obtain
discovery by one or more of the following methods: [¶] (1) Oral and written depositions.
[¶] (2) Interrogatories to a party. [¶] (3) Inspections of documents, things, and places.
[¶] (4) Physical and mental examinations. [¶] (5) Requests for admissions. [¶]
(6) Simultaneous exchanges of expert trial witness information.”
11
(Stats. 2004, ch. 182, § 61 [‘Nothing in this act is intended to substantively change the
law of civil discovery’].)” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare
Consultants (2007) 148 Cal.App.4th 390, 396, fn. 2.)
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) depositions,
(b) interrogatories, (c) demands for inspection of documents, things and places
(hereinafter ‘demands for inspection’), (d) physical and mental examinations; (e) requests
for admission and (f) exchanges of expert trial witness information.” (Assem. Bill
No. 169, 3d reading, as amended Jan. 8, 1986, p. 1, italics added.) Other committee
reports are essentially the same. (See, e.g., Sen. Rules Com., Off. of Sen. Floor Analyses,
3d reading analysis of Assem. Bill No. 169 (1985–1986 Reg. Sess.) as amended Aug. 25,
1986, p. 2.) The legislative history therefore indicates that the Legislature intended to
authorize only the six methods of civil discovery enumerated in former section 2019,
subdivision (a) and continued as section 2019.010 without change. There is no indication
that the Legislature intended to either authorize a vocational rehabilitation examination as
a method of civil discovery or authorize the trial court to compel a party to submit to a
method of civil discovery not expressly enumerated in the statute.
We therefore determine under the rules of statutory interpretation that
section 2019.010 does not authorize a defense vocational rehabilitation examination,
since that is not one of the methods of discovery enumerated in the statute. Accordingly,
the trial court acted outside the scope of the court’s discretion when it ordered Haniff to
undergo a vocational rehabilitation examination. (See Sargon, supra, 55 Cal.4th at
p. 773.) Our determination is consistent with other appellate decisions that have
addressed the statutory limits on discovery (see, e.g., Roe, supra, 243 Cal.App.4th at
p. 144).
12
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 (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 section 2019.010, may be violative of the constitutional right to
due process. Further, as stated in Browne, denial of a defense vocational rehabilitation
examination “does not leave [the defendants] in a fundamentally unfair or unpreferred
position at trial.” (Browne, supra, 98 Cal.App.3d at p. 616, fn. 4.) In Browne, the
defendants were “afforded access to all of the notes and records of the examination of
petitioner conducted by the state vocational rehabilitation counselor, augmented by the
latter’s deposition; that examiner, if called, will be subject to thorough cross-examination
by real parties aided by a comparable professional counselor, if desired. [Citation.]”
(Ibid.)
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
13
1957 enactment of former section 2032, which provided statutory authority for physical
and mental examinations in California. (Stats. 1957, ch. 1904, § 3.)
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 (Lee) rejected the argument that section 2019.010 provides
an exclusive list of discovery methods in civil cases.
Lee concerned the scope of discovery in a civil commitment proceeding under the
Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.). In the
SPVA proceeding at issue in Lee, the district attorney had issued subpoenas duces tecum
that sought the defendants’ medical and psychological records. (Lee, supra, 177
Cal.App.4th at p. 1112.) The primary issue on appeal was the appropriate use of a
subpoena duces tecum in an SVPA proceeding in light of the Welfare and Institutions
Code section 6603, subdivision (c)(1) provision for automatic disclosure of certain
medical and psychological records. (Lee, supra, at p. 1125.)
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 section 1985, subdivision (b). (Lee, supra, 177 Cal.App.4th
at p. 1112.) Additionally, the court determined that the district attorney’s access to
certain medical and psychological records was not dependent upon the issuance of a
subpoena duces tecum. (Id. at p. 1129.) The court stated: “Defendants do not contend
that a subpoena duces tecum is not an available discovery method in SVPA proceedings.
We have not found any legal authority limiting the availability of civil discovery methods
in SVPA proceedings, and there is no analytical basis for concluding subpoenas duces
tecum are not available in such proceedings.” (Id. p. 1124, fn. omitted.) The court
rejected the defendants’ argument that section 2019.010 barred the disclosure of their
confidential health information, determining that the SVPA, at Welfare and Institutions
14
Code section 6603, subdivision (c)(1), “directly authorizes a district attorney to obtain
certain confidential health information.” (Lee, supra, at p. 1136.)
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 a SPVA proceeding. The Lee court did
not address the methods of civil discovery that are available under section 2019.010 in a
personal injury case, such as the case at bar. “ ‘ “It is axiomatic that language in a
judicial opinion is to be understood in accordance with the facts and issues before the
court. An opinion is not authority for propositions not considered.” [Citation.]’
[Citation.]” (May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1335.)
4. Section 2017.010
Alternatively, Hohman and Kim contend that a defense vocational rehabilitation
examination is authorized under section 2017.010, which provides in part: “Unless
otherwise limited by order of the court in accordance with this title, any party may obtain
discovery regarding any matter, not privileged, that is relevant to the subject matter
involved in the pending action or to the determination of any motion made in that action,
if the matter either is itself admissible in evidence or appears reasonably calculated to
lead to the discovery of admissible evidence.” Hohman and Kim assert that under
section 2017.010 they are entitled to a defense vocational rehabilitation examination in
order to obtain relevant information “regarding what jobs [Haniff] is qualified to perform
and how much he could earn.”
Haniff responds that section 2017.010 does not apply because that section
“concerns the scope of discovery, whereas . . . section 2019.010 identifies the methods of
discovery . . . .” We agree. Section 2017.010 has been construed to authorize discovery
of information that is relevant because “it ‘might reasonably assist a party in evaluating
the case, preparing for trial, or facilitating settlement. . . .’ [Citation.] Admissibility is
not the test and information unless privileged, is discoverable if it might reasonably lead
15
to admissible evidence. [Citation.]” (Lopez v. Watchtower Bible & Tract Society of New
York, Inc. (2016) 246 Cal.App.4th 566, 591.)
Thus, section 2017.010 governs the scope of the information that may be sought
by the various methods of discovery, which is a broad but not unlimited scope. (See, e.g.,
State Farm Mutual Automobile Ins. Co. v. Lee (2011) 193 Cal.App.4th 34, 40-41
[deposition questions fell within broad scope of discovery]; John B. v. Superior Court
(2006) 38 Cal.4th 1177, 1186 [limiting scope of special interrogatories, requests for
admission, and subpoenas duces tecum seeking information about the defendant’s sexual
history and HIV status]; Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224
Cal.App.4th 754, 763 [whether individual homeowners could be deposed about their
litigation meetings with their homeowners’ association’s attorneys].)
Accordingly, since section 2017.010 concerns the scope of civil discovery, and not
the methods of civil discovery, section 2017.010 may not be construed to authorize a
vocational rehabilitation examination. Hohman and Kim may use other discovery
methods, such as depositions and interrogatories, to obtain relevant information regarding
Haniff’s wage loss and loss of earning capacity claims and the opinions of his vocational
rehabilitation expert. (See Browne, supra, 98 Cal.App.3d at p. 616.)
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. 1004, in which the trial court ordered the plaintiff in a personal injury action to
16
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.
(N.Y. Ct. App. 1998) 92 N.Y.2d 952, 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
discovery available, subject to the discretion of the trial court, under CPLR 3101[5]
[citations].” (Id. at pp. 953-954.)
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.)
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
5
New York Civil Practice Law and Rules, rule 3101, subdivision (a) provides:
“Generally. There shall be full disclosure of all matter material and necessary in the
prosecution or defense of an action, regardless of the burden of proof, by: [¶] (1) a party,
or the officer, director, member, agent or employee of a party; [¶] (2) a person who
possessed a cause of action or defense asserted in the action.”
17
expert evaluation in a workers’ compensation case. (Id. at p. 486.) However, the board
found authority for its order in Labor Code section 57086 and California Code of
Regulations, title 8, section 10348.7 (Holz, supra, at p. 486.) Hohman and Kim have
provided no authority for the proposition that either Labor Code section 5708, which
exempts workers’ compensation judges from the statutory rules of evidence or procedure,
or regulations governing workers’ compensation judges, may supplant the Code of Civil
Procedure provisions authorizing specific methods of discovery in civil cases.
The decision in Baqleh v. Superior Court (2002) 100 Cal.App.4th 478 (Baqleh) is
also not helpful. In Baqleh the issue was whether the defendant in a criminal case whose
mental competency is at issue may be ordered “to submit to examination by an expert
retained by the prosecution and, if so, the nature of the examination that may be ordered
and the consequences of a defendant’s refusal to submit.” (Id. at p. 482.) The Baqleh
court determined that “[a]lthough the statutory scheme relating to trial on the issue of
competency [Pen. Code, § 1367 et seq.] does not specify the pretrial discovery that is
allowable, we must assume it contemplates that which is necessary to ensure a fair trial
and constitutionally permissible.” (Id. at p. 489.)
6
Labor Code section 5708 provides: “All hearings and investigations before the
appeals board or a workers’ compensation judge are governed by this division and by the
rules of practice and procedures adopted by the appeals board. In the conduct thereof
they shall not be bound by the common law or statutory rules of evidence and procedure,
but may make inquiry in the manner, through oral testimony and records, which is best
calculated to ascertain the substantial rights of the parties and carry out justly the spirit
and provisions of this division. All oral testimony, objections, and rulings shall be taken
down in shorthand by a competent phonographic reporter.”
7
California Code of Regulations, title 8, section 10348 provides in part: “In any
case that has been regularly assigned to a workers’ compensation judge, the judge shall
have full power, jurisdiction and authority to hear and determine all issues of fact and law
presented and to issue any interim, interlocutory and final orders, findings, decisions and
awards as may be necessary to the full adjudication of the case, including the fixing of
the amount of the bond required in Labor Code section 3715.”
18
The Baqleh court further determined that under Penal Code section 1369 a mental
competency trial is a special proceeding of a civil nature in which the Civil Discovery
Act applies, and therefore the mental examination requested by the prosecution was
authorized under former section 2032, subdivision (d).8 (Baqleh, supra, 100 Cal.App.4th
at p. 491.) The court also ruled that the prosecution had improperly sought videotaping
of the mental examination since that form of recording was not authorized under former
section 2032, subdivision (g)(2). (Baqleh, supra, at p. 492.) Thus, the decision in Baqleh
is consistent with the other California appellate court decisions ruling that trial courts
may not expand civil discovery beyond that permitted by the civil discovery statutes.
(See, e.g., Cruz, supra, 121 Cal.App.4th at p. 650.)
6. Conclusion
Since a vocational rehabilitation examination is not one of the civil discovery
methods authorized by section 2019.010, we conclude under the applicable legal
principles that the trial court acted outside the scope of the court’s discretion when it
ordered Haniff to undergo a vocational rehabilitation examination. (See Sargon, supra,
55 Cal.4th at p. 773.) The contention that a defense vocational rehabilitation examination
should be an available discovery method as a matter of fundamental fairness and trial
preparation in a personal injury case where, as here, the plaintiff seeks compensatory
damages for wage loss and loss of earning capacity, is better addressed to the Legislature.
(See, e.g, Waste Management of the Desert, Inc. v. Palm Springs Recycling Center, Inc.
(1994) 7 Cal.4th 478, 490 [contention better addressed to Legislature where holding is
8
Former section 2032, subdivision (a) provided: “Any party may obtain
discovery, subject to the restrictions set forth in Section 2019, by means of a physical or
mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural
person in the custody or under the legal control of a party, in any action in which the
mental or physical condition (including the blood group) of that party or other person is
in controversy in the action.”
19
based on statute “as it is written, not on a different, perhaps broader, version that could
have been, or still may be, enacted”].)
We will therefore issue a peremptory writ of mandate directing the trial court to
vacate its order granting the motion for an order compelling Haniff to undergo a
vocational rehabilitation examination and to enter a new order denying the motion.
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
___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
PREMO, ACTING P.J.
__________________________
MIHARA, J
20
Trial Court: Santa Clara County Superior Court
Superior Court No.: 2013-1-CV252992
Trial Judge: Hon. Maureen A. Folan
Attorneys for Petitioner:
Mohammed Haniff J. Kevin Morrison
Joshua D. White
Ross J. Psyhogios
Jones Clifford, LLP
Attorneys for Real Parties in Interest:
James Hohman David A. McDowell
Moonhee Kim Shelley O’Connor
McDowell Shaw Garcia & Mizell
Board of Trustees of the Leland Keith C. Bower
Stanford Junior University