Judge Jill Feeney, Case 19STCV33719 2022-09-28 Tentative Ruling

Judge: Jill Feeney, Case: 19STCV33719, Date: 2022-09-28 Tentative Ruling

PLEASE NOTE:

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at sscdept30@lacourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Case Number: 19STCV33719 Hearing Date: September 28, 2022 Dept: 30

Department 30, Spring Street Courthouse

September 28, 2022

19STCV33719

Motion for Protective Order Prohibiting the Proposed Deposition of Plaintiff Casandra M. Abreu, Pursuant to CCP Sections 2025.420(a) and 2025.420(b)

DECISION

The motion is denied.

The Court orders the parties to meet and confer to come up with a deposition plan that will reduce as much as possible the potential stress placed on Plaintiff during the course of the deposition.

Moving party to provide notice.

Background

This action commenced on September 20, 2019. Plaintiff Casandra M. Abreu, by and through her Guardian ad Litem, Sandra Gomez, brings this action against Defendants Diego Alonso Reyes Molina, RRL Logistics LLC, Geriq Logistics, LLC, and Ramon Leon. Plaintiffs causes of action are: general negligence, respondeat superior, negligent supervision, negligent hiring/retention, and wrongful death. This matter arises from an incident that occurred on January 11, 2019 in which Plaintiff’s mother was pushed out of a vehicle operated by Molina during the course and scope of his employment with RRL. Plaintiff’s mother subsequently died on October 1, 2019.

On March 21, 2022, Plaintiff filed the pending motion for a protective prohibiting the proposed deposition of Plaintiff. If this motion is granted, Plaintiff’s Guardian ad Litem, Sandra Gomez, would be deposed in place of Plaintiff.

The Court had ordered Plaintiff and the Guardian Ad Litem to appear for deposition with Defendant Geriq Logistics, LLC within the next 30 days of that order but gave Plaintiff the opportunity to move for a protective order.

On April 15, 2022, Defendants deposed Plaintiff’s guardian ad litem, Sandra Gomez. Gomez was unable to answer any of the questions she was asked regarding the relationship between Sandra Abreu and Defendant Molina. The deposition was then cut short.

On June 1, 2022, Gomez’s second deposition was cancelled for safety reasons. The hearing on this matter was again continued to allow July 28, 2022 to allow the parties to reschedule the deposition.

On July 28, 2022, the parties agreed to schedule Gomez’s deposition for the week of August 8, 2022. The Court ordered Gomez’s deposition to go forward the week of August 8, 2022.

On August 11, 2022, Defendants completed Gomez’s deposition. Gomez was unable to provide detailed information regarding the relationship between Sandra Abreu and Molina.

On September 16, 2022, Defendants filed an opposition to Plaintiff’s motion for a protective order.

Summary

Moving Arguments

Plaintiff contends that she is incompetent to testify because she is a minor and as a result of her medical condition. Specifically, Plaintiff contends that her mental health issues were caused by the subject incident. Plaintiff’s mental health diagnosis is as follows: Major Depressive Disorder with psychotic features, ADHD, and Anxiety Disorder Unspecified. Plaintiff was 11 years old at the time of the incident.

However, Plaintiff is willing to produce her Guardian ad Litem (“GAL”) for deposition.

Plaintiff brings this motion pursuant to CCP section 2025.420(a),(b).

Opposing Arguments

Defendants argue that Plaintiff failed to produce evidentiary support to suggest that Plaintiff is unable to be deposed. Although Plaintiff provided a doctor’s note, the note did not specify that Plaintiff could not be deposed or testify in court. Although Sandra Gomez’s declaration states Plaintiff’s mental health would deteriorate at the mention of her mother’s death, Gomez’s declaration is hearsay. Additionally, Defendants question the genuineness of the letter because it is in English and Gomez required a Spanish language interpreter at her deposition.

Defendants also argue that Plaintiff is not incompetent to testify because children are not exempt from discovery, including depositions.

Defendant further states that given Plaintiff’s depression, anxiety, and ADHD, her deposition may be adjusted to minimize stress.

Lastly, Defendants argue that they will be unduly prejudiced if they cannot depose Plaintiff because they will be unable to discover facts about Plaintiff’s mother and damages.

Reply

In reply, Plaintiff argues that testifying will significantly worsen her psychiatric symptoms. Plaintiff provides a supplemental letter from Plaintiff’s doctor. Plaintiff also argues that the incident is too remote for Plaintiff to testify to because she was only 11 at the time of the incident.

Legal Standard

Under Code of Civil Procedure section 2017.020 courts “shall limit the scope of discovery if” the court “determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” A “court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Id.)

“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. (Code Civ. Proc., § 2025.420, subd. (a).) The court, for good cause shown, may make any order “that justice requires” to protect any party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) If “good cause” is shown, the court can exercise its discretionary power to limit discovery. (See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298-99.) The granting or denial of relief lies within the sound discretion of the judge. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 379-81 (overruled on other grounds pertaining to attorney work product privilege).) The concept of good cause requires a showing of specific facts demonstrating undue burden, unwarranted embarrassment, oppression, or unwarranted annoyance, and justifying the relief sought. (See Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.3d 807, 819.) Unlike other discovery orders, a protective order may be granted simply on the court’s determination that justice so requires. (Greyhound Corp., 56 Cal.2d at pp. 379-81.)

Discussion

Plaintiff seeks a protective order prohibiting Plaintiff from being deposed pursuant to CCP section 2025.420(a).

Plaintiff contends that there is good cause for a protective order because Plaintiff was an 11-year-old minor at the time of the incident and Plaintiff suffers from mental health issues, consisting of Major Depressive Disorder with psychotic features, ADHD, and Anxiety Disorder Unspecified. (Mot., p. 4-5.) Plaintiff contends that her mental health issues were caused by the subject incident and so subjecting Plaintiff to a deposition on that subject matter will cause Plaintiff unwarranted annoyance, embarrassment, and oppression. (Id., p. 4.)

Exhibit A to the motion and reply support Plaintiff’s claim that she is receiving mental health services and supports the forgoing diagnosis. Dr. Brockman, in that exhibit, also states that Plaintiff has reported to him that her’ mother’s death has been a major stressor for her. Exhibit B, what appears to be an assessment of Plaintiff’s need for protective supervision, supports the proposition that, at least in March 2021, Plaintiff’s judgment was severely impaired. There, Dr. Brockman also appears to recommend “close supervision” and references Plaintiff’s “intermittent thoughts of suicide/self-harm” and that Plaintiff has “harmed herself in the past.” Plaintiff’s GAL, Sandra Gomez, also has provided a declaration in support of establishing Plaintiff’s mental health issues.

Defendants argued that Plaintiff’s doctor’s note does not specify that Plaintiff should not be deposed or testify in court. In response, Plaintiff provided a supplemental doctor’s note from Dr. Brockmnn, which states that Plaintiff “should not be forced to testify in court against her will if at all possible, since in my opinion this would be extremely stressful for her, and could potentially exacerbate her psychiatric symptoms.” (Reply, Exhibit A.)

Plaintiff contends that, “The discovery that is sought from the deposition of Plaintiff would be unreasonably cumulative and duplicative because it could be obtained from the deposition of her guardian ad litem, Sandra Gomez.” (Mot., p. 5.) However, Gomez could not provide detailed information about Plaintiff’s mother and her relationship with Defendant Molina, her employment, and other topics. (Opposition, p. 9.) Defendants allege that this information is necessary to evaluate Plaintiff’s claims and determine damages. Defendants also allege that they were previously unable to obtain written discovery because Plaintiff claimed discovery had just begun and depositions had not yet taken place.

Defendants will be prejudiced if they cannot determine the relationship between Sandra Abreu and Defendant Molina and other information necessary for Defendants to determine damages. As things stand, they have been left with no viable alternative for obtaining needed information.

The Court denies the motion for a protective order under these circumstances.

The Court orders the parties to meet and confer to come up with a deposition plan that will reduce as much as possible the potential stress placed on Plaintiff during the course of the deposition.