Judge: Daniel M. Crowley, Case: 21STCV02453, Date: 2022-09-29 Tentative Ruling

Case Number: 21STCV02453    Hearing Date: September 29, 2022    Dept: 28

Defendants Greg Estel and Laura Estel’s Motion for Protective Order

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On January 21, 2021, Plaintiff Maria Rodriguez (“Plaintiff”) filed this action against Defendant Greg Estel (“Greg”) for negligence. Plaintiff later amended the complaint to include Defendant Laura Estel (“Laura”).

On February 25, 2021, Greg filed an answer. On June 18, 2021, Laura filed an answer.

On June 24, 2022, Defendants filed a Motion for Protective Order to be heard on September 29, 2022. On September 15, 2022, Plaintiff filed an opposition. On September 20, 2022, Defendants filed a reply.

Trial is currently scheduled for February 3, 2023.

PARTY’S REQUESTS

Defendants request the Court order the postponing of the video recording of the deposition testimony of expert witness Jonathan Frank, M.D. (“Deponent”).

Plaintiff requests the Court deny the motion.

LEGAL STANDARD

Misuse of the discovery process includes (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (d) Failing to respond or to submit to an authorized method of discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. CCP § 2023.010.

The court may grant a protective order to prevent certain behavior at a deposition if justice so requires or to protect a party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. CCP § 2025.420. This includes excluding designated persons other than parties, officers, and counsel. The Court may also make orders regarding the taking depositions, such as that a video recording be postponed until the moving party has adequate time to prepare, by discovery deposition or other means, for cross-exmaination. The court shall impose sanctions against anyone who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the party acted with substantial justification.

DISCUSSION

Defendants served a deposition notice for Deponent for June 28, 2022. Plaintiff then served a notice of intent to video Deponent’s deposition the same day, reserving the right to use the videotape deposition at trial in lieu of live testimony. Defendants objected to the notice as it would not provide adequate time to prepare for cross-examination of Deponent for the purposes of trial.

Under CCP 2025.420(b), the Court can order the delay of the trial deposition in order for the moving party to prepare for cross-examination. The Court finds good cause to grant such an order; if Plaintiff intends to use Deponent’s testimony at trial, Defendants should be allowed to properly prepare a cross-examination. Defendants properly served an objection to the notice and filed a protective order in order to preserve that right.

Plaintiff argues that Defendants have had Plaintiff’s medical record for over a year to review in preparation for Deponent’s deposition; the Court is unconvinced by this argument. There is a difference between merely having access to documents and conducting a discovery deposition. Plaintiff also argues that granting such an order would deprive Plaintiff of her rights because she would not be able to use her expert’s opinion testimony at trial. This is false; Plaintiff will still be allowed to conduct Deponent’s trial deposition. Plaintiff simply cannot do this the same day as the discovery deposition—Plaintiff will need to provide adequate time for Defendants to review and prepare for potential cross-examination based upon the facts collected at the discovery deposition. Given that Plaintiff’s joinder identified that the deposition will be taken in lieu of testimony at trial, Defendants must be given proper time to prepare.

CONCLUSION

Defendants Greg Estel and Laura Estel’s Motion for Protective Order is GRANTED. Plaintiff is ordered to postpone the video-taped trial deposition of deponent for at least 14 days until after the discovery deposition has concluded.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.