Goldberg v. Humphries CA2/4

Filed 9/22/15 Goldberg v. Humphries CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

KAYLA GOLDBERG B260378

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC491232) v.

KRIS HUMPHRIES,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles Country, Gregory Keosian, Judge. Affirmed. Hennig Ruiz, Rob Hennig and Brandon Ruiz for Plaintiff and Appellant. Zelle Hofmann Voelbel & Mason, Lee A. Hutton, III and Eric W. Buetzow for Defendant and Respondent.

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The plaintiff in this tort liability case, Kayla Goldberg, appeals from a summary judgment in favor of defendant Kris Humphries. We conclude Goldberg has not raised a triable issue of material fact on her causes of action for battery and negligence and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY Plaintiff and defendant first met at a restaurant on August 31, 2010. They exchanged telephone numbers and made plans to meet later that evening at a nightclub. After meeting at the nightclub, Plaintiff and defendant went to defendant’s hotel room and engaged in sexual intercourse in the early hours of September 1, 2010. After plaintiff left defendant’s hotel room they did not meet again. Several days later, plaintiff had an outbreak of symptoms and herpes lesions. She tested positive for herpes simplex virus type-1 (HSV 1). Two years later, on August 29, 2012, plaintiff sued defendant for sexual battery, negligence, and negligent infliction of emotional distress. Plaintiff alleged that defendant transmitted a sexually transmitted disease to her during intercourse on September 1, 2010. On February 3, 2014, the court granted defendant’s motion to continue trial and ordered that discovery be re-opened for the limited purpose of allowing plaintiff to take discovery to oppose defendant’s motion for summary judgment. On April 30, 2014, plaintiff moved for an order requiring defendant to submit to a blood test on the ground that the issue of whether defendant is infected with HSV 1 was in controversy and thus subject to discovery. Two days later, on May 1, 2014, defendant moved for summary judgment or in the alternative for summary adjudication based on lack of factual evidence that defendant knew or should have known that he was infected with the herpes virus at the time of the parties’ sexual contact. In opposition to plaintiff ’s motion for a physical examination, defendant argued that his physical condition was not “‘in controversy,’” rather only plaintiff ’s physical condition was at issue. Defendant maintained that he has not asserted a negative status as to the type of herpes virus that plaintiff contracted (HSV 1), rather he had only responded