Judge Joel L. Lofton, Case Number: 23AHCV00146, Date: 2023-09-05 Tentative Ruling

CASE: DENNIS O’BRIEN, an individual, v. DEBRA ANN HARRIS, an individual; and DOES 1 through 10,inclusive.

MOVING PARTY: Motion for protective order filed by Plaintiff Dennis O’Brien

This case arises out of Plaintiff Dennis O’Brien’s (“Plaintiff”) claim that Defendant Debra Ann Harris (“Defendant”) defrauded him of assets by offering to assist in the probate process for Plaintiff’s deceased wife. Plaintiff filed a first amended complaint on October 23, 2023, alleging nine causes of action for (1) elder abuse, (2) intentional infliction of emotional distress, (3) breach of contract, (4) breach of implied contract, (5) constructive trust, (6) promissory estoppel, (7) fraud, (8) quiet title, and (9) equitable lien.

Defendant’s motion to compel Plaintiff’s deposition testimony is GRANTED. Plaintiff’s counsel is ordered to produce his client for DEPOSITION within 10 days of the date of this order.

The central issue presented by both motions is whether Plaintiff is competent to appear for deposition.

On July 20, 2023, this court granted Plaintiff’s application for the appointment of Lissette Torres, Plaintiff’s friend and volunteer caregiver. On January 9, 2024, Plaintiff filed a motion for a protective order to stay the deposition. Code of Civil Procedure section 2025.410, subdivision (c), “a party may also move for an order staying the taking of the deposition and quashing the deposition notice.”

Plaintiff filed an application for the appointment of a guardian ad litem on the basis of incompetency. Deposition for Torres was conducted on October 20, 2023. (Egbase Decl. ¶ 3.) Defendant then noticed Plaintiff’s deposition for December 11, 2023. (Id. ¶ 4.) Plaintiff’s counsel provides that his client appeared for deposition on December 11, 2013. (Id. ¶ 5.)

The parties hotly contest the events of the hearing with Plaintiff’s counsel arguing that his client is clearly incompetent while Defendant’s counsel argues that Plaintiff had been on a phone call immediately prior to the deposition, evincing his competency. Plaintiff argues that the court’s order granting his application for the appointment of a guardian ad litem is definitive to show that he is not compelled to testify for deposition. Plaintiff also argues that there is no need for him to appear for deposition. Plaintiff’s latter argument is completely unpersuasive. Clearly as the party bringing this case and percipient witness to most of the events at issue Plaintiff, if competent to testify, is a necessary witness.

Plaintiff’s arguments regarding the appointment of a guardian ad litem precluding him from testifying is also rejected. Pursuant to Code of Civil Procedure section 373, subdivision (c), a guardian ad litem may be appoint for a “person lacking legal competence to make decisions”.

“ ‘In the adversarial context, the guardian ad litem's function is to protect the rights of the incompetent person, control the litigation, compromise or settle the action, control procedural steps incident to the conduct of the litigation, and make stipulations or concessions in the incompetent person's interests. [Citation.] In such cases, the guardian ad litem's role “is more than an attorney's but less than a party's.” ’ ” (In re Nicole H. (2011) 201 Cal.App.4th 388, 398.) The appointment of a guardian ad litem is rooted in protecting the interests of the incompetent person and furthering efficiency. However, the court is unable to find, and Plaintiff fails to cite to, any authority establishing that the appointment of a guardian ad litem is conclusive proof that Plaintiff is unable to testify as a matter of law.

Evidence code 700[1] makes clear that all grounds for disqualification of witness must be based on statue and there can be no non statutory grounds for disqualification. If after the deposition is taken the guardian ad litem believes that the testimony should be disallowed due to factors delineated in Evidence code 701[2], they may bring that motion.

Parties who intend to submit on this tentative must send an email to the court indicating their

[1] Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.

[2] (a) A person is disqualified to be a witness if he or she is:

   (1) Incapable of expressing himself or herself concerning the

matter so as to be understood, either directly or through

interpretation by one who can understand him; or

   (2) Incapable of understanding the duty of a witness to tell the

truth.

   (b) In any proceeding held outside the presence of a jury, the

court may reserve challenges to the competency of a witness until the

conclusion of the direct examination of that witness.