Judge John C. Gastelum, Case 22-01248703 2022-09-06 Tentative Ruling

Judge: John C. Gastelum, Case: 22-01248703, Date: 2022-09-06 Tentative Ruling

(1) Motion for Protective Order (2) Motion to Compel Deposition (Oral or Written)

Tentative Ruling: (1) Motion for Protective Order

Plaintiff Hailey Bond moves for a protective order allowing Plaintiff to appear for deposition remotely. For the following reasons, the motion is denied.

As an initial matter, a motion for a protective order must be accompanied by a declaration showing the moving party made a reasonable and good faith attempt to resolve the issues outside of court. (Code Civ. Proc. §§ 2016.040, 2030.090(a), 2031.060(a), 2033.080(a).) Here, Plaintiff has failed to establish that Plaintiff or her counsel ever expressed any concerns about COVID-19 prior to the motion being filed. Nowhere in the meet and confer emails attached to the Motion demonstrate any attempt to meet and confer on this issue. Because Plaintiff failed to meet and confer prior to filing this Motion, the Motion is denied.

Even if Plaintiff had sufficiently met the meet and confer requirement, the Motion is denied for failure to establish good cause.

A party may move for a protective order to protect the party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. § 2025.420(b).) The burden is on the moving party to establish good cause for whatever order is sought. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) “Good cause” requires specific facts demonstrating unwarranted annoyance, embarrassment, oppression, or undue burden and expense. (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.)

Plaintiff seeks a protective order allowing Plaintiff to appear for deposition remotely.

The Code of Civil Procedure was recently amended to expressly authorize the conducting of remote depositions. See, e.g., Cal. Code Civ. Proc. Section 2025.310 (a) (“At the election of the deponent … the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer … at the time of the deposition.”)

Plaintiff has not met her burden of providing specific facts demonstrating “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) Plaintiff has expressed general concerns regarding COVID-19, but Plaintiff has not provided any specific evidence that Plaintiff is at any particular risk of contracting COVID-19. For instance, Plaintiff has not provided any evidence that she is immunocompromised or that she is living with an immunocompromised individual.

While the Court is sympathetic to Plaintiff’s general concerns pertaining to COVID-19, Defendant’s counsel has stated that his office will accommodate those concerns by providing evidence of vaccination/negative COVID-19 testing on behalf of those in attendance, maintaining a six-foot distance from Plaintiff, and requiring masks (if requested by Plaintiff) for those attending the deposition. These safeguards appear to adequately address Plaintiff’s general health concerns and the Opposition indicates that Plaintiff’s counsel agrees. The motion is denied given the availability of those safeguards.

As to Plaintiff’s schooling and work schedule, the deposition should be scheduled for a mutually agreeable date and location in Oregon.

Finally, there is no evidence that Plaintiff’s request for a remote deposition was “manufactured” as alleged by Defendant. Plaintiff’s concerns appear legitimate and have, for the most part, been sufficiently addressed by counsel for the parties through additional meet and confer efforts. Likewise, Defendant’s desire for an in-person deposition are valid.

Based upon the foregoing, all requests for sanctions are DENIED as the circumstances make the imposition of sanctions on either party unjust.

Defendant to give notice.

(2) Motion to Compel Plaintiff’s Deposition

Defendant David Madrazo’s motion to compel Plaintiff’s in-person deposition is GRANTED given the safeguards agreed upon by counsel.

Pursuant to Code of Civil Procedure section 2025.450(a), a party may move for an order compelling a deponent’s attendance and production of documents, if a party “fails to appear for examination” or fails “to produce for inspection any document…described in the deposition notice.” (Code Civ. Proc., § 2025.450(a)). In addition, sanctions are governed by section 2025.450, subdivision (g).

Here, Defendant noticed Plaintiff’s in-person deposition to take place in Oregon. Plaintiff maintains that she is willing to appear for deposition, so long as it is remote due to concerns regarding COVID and her financial/school issues. Initially, the deposition was scheduled for June and the meet and confer correspondence noted Plaintiff would be on summer break. Plaintiff’s counsel did not raise any of these issues until after these subject motions were filed.

In any event, as to COVID concerns, as noted in the court’s ruling above regarding Plaintiff’s motion for protective order, Defendant has proposed the following safeguards for an in-person deposition: providing evidence of vaccination/negative COVID-19 testing on behalf of those in attendance, maintaining a six-foot distance from Plaintiff, and requiring masks (if requested by Plaintiff) for those attending the deposition. Plaintiff’s counsel has agreed to these terms if the court orders the in-person deposition. These safeguards appear to adequately address Plaintiff’s general health concerns.

Given that there is no current trial date and that Plaintiff is a working college student, the court ORDERS the deposition to be scheduled for a mutually agreeable date and location.

Based upon the foregoing, the Court is inclined to deny all sanctions as the circumstances make the imposition of sanctions on either party unjust.

Defendant to give notice.