Judge: Jill Feeney, Case: 22STCV00773, Date: 2022-08-02 Tentative Ruling

Case Number: 22STCV00773    Hearing Date: August 2, 2022    Dept: 30

Department 30, Spring Street Courthouse
August 2, 2022
22STCV00773
Motion for Protective Order filed by Plaintiff Fatima Camarena

DECISION

The motion is denied.

No sanctions are imposed.

It is ordered that Plaintiff may wear a face mask throughout her deposition.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

On January 7, 2022, Plaintiff Fatima Camarena (“Plaintiff”) filed her complaint alleging motor vehicle and general negligence against Rosario Martinez Antonio and Does 1 through 10.

On July 20, 2022, Plaintiff filed the instant Motion for Protective Order.

Summary

Moving Arguments

Plaintiff argues that the location of her deposition is 75 miles away from her home and would unduly burden her because it would (1) cause her to be away from home, where she is the sole caregiver of her 2 children, (2) cause her to lose a full day of wages and jeopardize her employment, and (3) expose her to increased risk of contracting COVID-19. Plaintiff also argues that Defendant has not shown that he will suffer prejudice if Plaintiff’s deposition is not in person.

Opposing Arguments

 Defendant argues that Plaintiff’s lost wages and her status as the only caretaker for her two children are irrelevant to her duty to comply with discovery obligations. Defendant believes it would be unfair that Plaintiff would be distracted by her children during a remote deposition and that the interference of other parties is not permitted by the Code of Civil Procedure. Defendant also argues that Plaintiff should have known when she filed her lawsuit that she would be required to appear in person for deposition, medical examination, and trial. Defendant contends that traveling does not place her at more risk of exposure to COVID-19 than any other litigant or pose more risk than her daily activities. Additionally, Defendant argues that Plaintiff has no right to dictate the terms of her deposition because she is not the deposing party. Defendant also argues Plaintiff is not entitled to sanctions and requests sanctions against Plaintiff for filing a frivolous motion.

Reply Arguments
Plaintiff argues that the proper legal standard is not whether her circumstances are unique or exceptional, but whether attending her deposition would force her to incur substantial hardship and financial burden.  

Legal Standard

“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., supra, 56 Cal.2d at pp. 379-81.) 

A court shall impose sanctions 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. Pro. section 2030.090, subd. (d).)

Pursuant to California Code of Civil Procedure Section 2025.250(a), a deposition may occur within 75 miles of a deponent’s residence or within the county where the action is pending and within 150 miles of the deponent’s residence. 

Discussion

Plaintiff requests a protective order permitting her to attend her deposition remotely. Additionally, Plaintiff requests sanctions in the amount of $1,860 against Defendant. Plaintiff was noticed for a deposition at Defendant’s counsel’s office at 6830 Palm Avenue, Riverside, CA 92506 on June 30, 2022.

Plaintiff’s evidence in support of her motion shows that she is the only breadwinner and caretaker in her household. (Camarena Decl., p.1) Her 2 children are 4 and 6 years old and rely on her to care for them at home while they are on summer break from school. (Id.) Attending her deposition would cause Plaintiff financial losses from (1) losing a day of wages working as a nanny, (2) paying for a nanny to watch her own children, and (3) the risk of losing her employment. Lastly, Plaintiff claims having to travel to her deposition will increase her risk of contracting COVID-19 and likely require her to isolate from her children and lose her employment. (Id., p.2)

Although Plaintiff states she will suffer significant financial hardship, she has not provided evidence of the amount in wages she will lose and costs of childcare she will incur if she is required to attend her deposition in person and why the amount lost/incurred would constitute an undue burden to Plaintiff. 

Plaintiff has not shown that risking exposure to COVID-19 would pose an undue burden to her. Plaintiff does not provide any evidence regarding her health or that the risk of travel puts her at an increased risk of contracting COVID-19 versus her normal risk as a result of the activities of her life and job.  

In response to the pandemic, the Court revised Code of Civil Procedure section 2025.310, which expressly permits the attendance at depositions via remote means by certain individuals. (Id.) Party deponents, however, were not given the right to attend a deposition remotely at their election. (See Code Civ. Proc, § 2025.310, subds. (a)-(e).) Indeed, the August 31, 2020 Committee Report for SB 1146 discusses Section 2025.310 and states:  
 
“Depositions with the deposition officer appearing remotely: By statute, the availability of remote depositions-depositions in which the deponent is at a different location than the deposition officer-is extremely limited. The court’s express permission is required to conduct a remote nonparty deposition; party depositions cannot be conducted with a remote deposition officer under any circumstances. [Fn. 3.] This bill is intended to codify one of the Judicial Council’s COVID-19-related emergency rules to allow, on a permanent basis, the party noticing a deposition or the deponent to elect to have the deposition officer attend the deposition remotely. This bill further clarifies that the deponent must appear in person as noticed, but that other participants may elect to appear remotely. In amendments adopted in the Assembly, this bill also states that the provision for remote depositions does not alter the existing requirements for who may serve as a deposition officer, clarifying that the deposition officer at a remote deposition still must be licensed by the State of California. [Fn. 4.]”  
 
(2019 California Senate Bill No. 1146, California 2019-220 Regular Session.) (Emphasis added.)  
 
The history above demonstrates that the existence of a pandemic, alone, does not permit, at a party deponent’s election, a remote deposition appearance.  
 
Defendant’s office is located within the 75-mile limitation set forth in Code. Civ. Pro. section 2025.250, subd. (a).

Although Plaintiff’s request for protective order is denied, the parties previously discussed conducting the deposition at an office in Anaheim Hills, which is closer at 55-66 miles from Plaintiff’s home. (Motion, email dated July 6, 2022.) The Court urges the parties to work together to come up with the best solution possible.    

The parties are strongly encouraged to cooperate in this matter and reach a suitable compromise. 

The Court also orders that Plaintiff be allowed to wear a face mask during her deposition.

Regarding sanctions, Plaintiff would ordinarily be subject to sanctions as the party who unsuccessfully make a motion for a protective order. However, Plaintiff acted with substantial justification because she made this motion out of concern for her financial and physical health. The parties also made good faith efforts to meet and confer over this matter prior to making this motion. Thus, Defendant’s request for sanctions is denied.