Judge: Barbara M. Scheper, Case: 22STCV20036, Date: 2023-04-06 Tentative Ruling

Case Number: 22STCV20036    Hearing Date: April 6, 2023    Dept: 30

Dept. 30

Calendar No.

Zakaryaie vs. Zakaryaie, et. al., Case No. 22STCV20036

Tentative Ruling re:  Defendants’ Motion for Protective Order

Defendants Melanie Yadegar and Farideh Zakaryaie (collectively, Defendants) move for a protective order vacating the Notice of Deposition of Farideh issued by Plaintiff Manoocher Zakaryaie (Plaintiff). The motion is granted.

“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) “Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in the [ ] deposition clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.) “The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2025.420, subd. (a).)

“The court shall limit the scope of discovery if it determines that the burden, expense, intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.020, subd. (a).) The court shall restrict the frequency or extent of the use of a discovery method if it determines either of the following: 

1.       The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.¿ 

2.       The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.¿¿ 

(Code Civ. Proc.,¿§ 2019.030, subd. (a).)

On February 1, 2023, Plaintiff served a Notice of Deposition of Farideh, scheduling Farideh’s remote deposition for February 24, 2023. (Silverstein Decl. ¶ 7, Ex. A.)

Farideh, Plaintiff’s sister, was hospitalized following a stroke in November 2021, at the age of seventy-five. (Yadegar Decl. ¶ 2.) Melanie Yadegar, Farideh’s niece, was appointed as the Conservator of Farideh’s Person and Estate on February 3, 2022. (Yadegar Decl. ¶ 6.) Yadegar states that Farideh is currently bedridden and, due to pain, can only sit in her wheelchair for an hour or so at most. (Yadegar Decl. ¶ 9.) Farideh has no control over her bladder or bowel movements, needs assistance to be changed, needs supervision for eating and drinking, and has a history of wounds and infections on her posterior. (Yadegar Decl. ¶ 10.) Farideh has also experienced a significant cognitive decline, including severe memory loss. (Yadegar Decl. ¶ 11.) Farideh’s primary care provider, Dr. Mairead Torsney-Weir, submits a letter stating that Farideh confuses days and times and can no longer remember the name of close family members. (Yadegar Decl. ¶ 11, Ex. A.) Dr. Torsney-Weir opines that Farideh is unfit for deposition, to serve on a jury, and/or to participate in legal proceedings. (Ibid.) Plaintiff has presented no evidence contesting Defendants’ account of Farideh’s current condition.

The Court finds that the requested protective order is warranted. It is clear that taking Farideh’s deposition would impose a significant burden on her while being unlikely to result in the discovery of any admissible evidence. While Plaintiff suggests that the discovery was needed merely to establish Farideh’s lack of memory, a deposition is unnecessary and unduly burdensome in the given circumstances. Furthermore, the topics listed in Plaintiff’s Notice of Deposition were not limited to Farideh’s memory; the Notice states, “Plaintiff will depose Defendant regarding all issues raised by Plaintiff’s Second Amended Verified Complaint.” (Motion, Ex. A.) The motion for protective order is therefore granted.

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2017.020, subd. (b).)

            Monetary sanctions are mandatory based on Plaintiff’s unsuccessful opposition to this motion without substantial justification. While Plaintiff argues that the motion and request for sanctions are moot because he has cancelled the deposition, Plaintiff withdrew the deposition only after this motion was filed.

Defendant requests monetary sanctions in the amount of $5,875, based 1.4 hours by counsel Cliff Melnick at the hourly rate of $750; 4.3 hours by counsel Elliott Montgomery at the hourly rate of $475; and 2.3 hours, plus 3 hours anticipated to draft the Reply and attend the hearing, by counsel Nicole Silverstein at the hourly rate of $525. (Silverstein Decl. ¶ 18.) The requested sanctions are granted.