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Haniff v. Superior Court (James Hohman)

California Court of Appeals, Sixth District

March 1, 2017

MOHAMMED HANIFF, Petitioner,
v.
THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent JAMES HOHMAN et al., Real Parties in Interest.

         Santa Clara County Superior Court Superior Court No.: 2013-1-CV252992, Hon. Maureen A. Folan, Trial Judge

          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, Moonhee Kim, David A. McDowell Shelley O'Connor, McDowell Shaw Garcia & Mizell

          Board of Trustees of the Leland Stanford Junior University: Keith C. Bower

          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 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.

         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 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. 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. ...


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