Judge Holly J. Fujie, Case 20STCV19545 2022-10-24 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving papers. No opposition papers were filed. Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

This action arises out of the death of Vincent Paul Martin (“Mr. Martin”). Plaintiffs allege that Mr. Martin died from COVID-19 at the onset of the COVID-19 pandemic while admitted at HPHC, a nursing facility. The currently operative fourth amended complaint (the “4AC”) alleges: (1) violations of the Elder and Dependent Adult Civil Protection Act; (2) negligence; (3) wrongful death; (4) fraudulent concealment; and (5) fraudulent misrepresentation.

On August 2, 2022, Alsarraf filed a motion for a protective order (the “Motion”). The Motion requests that Alsarraf’s deposition not proceed on the grounds that he is a disabled person with Alzheimer’s dementia.

Under CCP section 2025.420, subdivision (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.¿ (CCP § 2025.420,¿subd. (a).)¿ For good cause shown, the court 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.¿ (CCP § 2025.420,¿subd. (b).)¿ CCP section 2025.420, subdivision (b) sets forth a nonexclusive list of directions that may be included in a protective order, including orders directing that the deposition may not be taken at all or that the deposition be taken at a different time. (See id.) The issuance and formulation of protective orders are to a large extent discretionary, and a ruling on such motions will not be disturbed absent abuse of discretion. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316-17.)

The Motion presents evidence that Alsarraf has an advanced stage of Alzheimer’s dementia such that he is unable to give meaningful or accurate deposition testimony and it would be detrimental to his health to appear since he needs total care and is in a wheelchair-bound state outside of his bed. (See Declaration of Bryan C. Misshore (“Misshore Decl.”) ¶ 9.)

The Court finds there is good cause to issue a protective order. For this reason and because it is unopposed, the Court GRANTS the Motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court