Judge: Christopher K. Lui, Case: 21STCV09420, Date: 2023-05-10 Tentative Ruling

Case Number: 21STCV09420    Hearing Date: May 10, 2023    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

            Plaintiff alleges medical malpractice in connection with facial filler injections which caused her severe reactions that required hospitalization and side effects which persist.

            Plaintiff Diana Zeegelaar moves for a protective order regarding the deposition of her wife, Ethelda Worthy.

TENTATIVE RULING

Plaintiff Diana Zeegelaar’s motion for protective order is GRANTED IN PART. The deposition of Ethelda Worthy shall occur at her home or via remote technology (at Plaintiff’s option), and will be limited to no more than one hour per day over two consecutive days.

ANALYSIS

Motion For Protective Order

            Pursuant to Civ. Proc. Code, § 2025.420, Plaintiff Diana Zeegelaar moves for a protective order regarding the deposition of her wife, Ethelda Worthy in the following respects: (1) prohibiting the deposition; or (2) ordering that the deposition be taken only on certain terms and conditions; or (3) that the deposition be taken by written, instead of oral, examination.

This motion is made pursuant on the grounds that Ethelda Worthy suffers from advanced Alzheimer’s, and unless a protective order is issued, she will suffer unwarranted annoyance, embarrassment, and oppression. Ms. Worthy’s cognitive function for memory and recall is in the first percentile, yet Defendants claim they need her testimony as a fact witness because she was present at Ms. Zeegelaar’s two appointments at their med-spa.  Plaintiff has not filed a loss of consortium claim and has offered to stipulate not to call Ms. Worthy as a witness at trial.

            Defendants seek to take the Worthy deposition regarding whether she was a witness to Plaintiff receiving the informed consent forms—which would bar this lawsuit—during the intake process and electing to proceed with the injections despite having had a chance to read and understand the known associated risks.

            Civ. Proc. Code, § 2025.420 provides in pertinent part as follows:

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) 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. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the deposition not be taken at all.

. . .

(5) That the deposition be taken only on certain specified terms and conditions.

(6) That the deponent’s testimony be taken by written, instead of oral, examination.

 . . .

(g) If the motion for a protective order is denied in whole or in part, the court may order that the deponent provide or permit the discovery against which protection was sought on those terms and conditions that are just.

(h) 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.

. . .

     (Civ. Proc. Code § 2025.420(a), (b), (g), (h).)

            The Declaration of Nicole C. Moskowitz reflects that counsel for moving party engaged in a sufficient meet and confer effort. (Moskowitz Decl., ¶¶ 5 – 17; Exhs. A – C.)

            Although Defendants claim this motion was not “promptly brought,” Plaintiff’s counsel indicates that they only learned that Ms. Worthy suffers from Alzheimer’s on February 15, 2023. (Moskowitz Decl., Exh. A, February 16, 2023, 6:46 p.m. email.) There is no reason why counsel would know the health status of Plaintiff’s wife at an earlier date, and the filing of this motion on April 7, 2023 is sufficiently “prompt.” The Court will hear the motion on the merits.

            Unless Defendants wish to contest Ms. Worthy’s claim that she suffers from Alzheimer’s Disease, the Court will grant the protective order with the terms that the deposition shall occur at Worthy’s home or by remote technology, and will be limited to no more than one hour per day over two consecutive days, as offered by Plaintiff.

            The area of inquiry—whether Worthy was a witness to Plaintiff giving informed consent—should not take a considerable amount of time.

            Moreover, if Worthy has Alzheimer’s Disease, her testimony is inherently impeachable. Further, Defendants may seek to enforce the signed consent forms, even if Plaintiff failed to read the forms before signing them.

A cardinal rule of contract law is that a party's failure to read a contract, or to carefully read a contract, before signing it is no defense to the contract's enforcement. (Citations omitted.) “To make out a claim of fraud in the execution,” parties seeking to avoid arbitration “must show their apparent assent to the contracts—their signatures on the client agreements—is negated by fraud so fundamental that they were deceived as to the basic character of the documents they signed and had no reasonable opportunity to learn the truth.” ( [*873] Citations omitted.) Accordingly, “[a] necessary element of the defense of fraud in the execution is reasonable reliance,” and “[g]enerally, it is not reasonable to fail to read a contract; this is true even if the plaintiff relied on the defendant's assertion that it was not necessary to read the contract.” (Citation omitted.)

(Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 872-73.)