Judge John J. Kralik, Case Number: 22BBCV00433, Date: 2023-07-21 Tentative Ruling

Plaintiffs J.P. (a minor) and N.B (an individual) allege that Defendant Burbank Unified School District (“BUSD”) employed Defendant Rex Bullington (“Mr. Bullington”) as a high school teacher. Plaintiffs allege that Mr. Bullington sexually abused, assaulted, battered, and molested students. Plaintiffs allege that Mr. Bullington molested N.B. on two separate occasions between 2000 to 2004. They also allege that J.P. was repeatedly molested from September 2019 to March 2020. Plaintiffs allege that BUSD did nothing to remove Mr. Bullington from students or to warn students and parents of the danger he posed.

The complaint, filed June 13, 2022, alleges causes of action for: (1) sexual battery by J.P. and N.B. against Mr. Bullington; (2) sexual assault by J.P. against Mr. Bullington; (3) cover up of childhood sexual assault by J.P. and N.B. against all Defendants; (4) negligence by J.P. and N.B. against BUSD; (5) negligent supervision by J.P. and N.B. against BUSD; (6) negligent hiring and retention by J.P. and N.B. against BUSD; (7) negligent failure to warn, train, or educate by J.P. and N.B. against BUSD; (8) IIED by J.P. and N.B. against all Defendants; (9) sexual harassment by J.P. and N.B. against all Defendants; and (10) battery by J.P. and N.B. against Mr. Bullington.

(b) The court, for good cause shown, 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. This protective order may include, but is not limited to, one or more of the following directions:

(5) That the deposition be taken only on certain specified terms and conditions.

(12) That designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition.

CCP § 2025.250(a) states: “(a) Unless the court orders otherwise under Section 2025.260 [location of deposition], the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence.”

CCP § 2025.310(b) states: “Subject to Section 2025.420 [protective orders], any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent. If a party or attorney of record elects to be physically present at the location of the deponent, all physically present participants in the deposition shall comply with local health and safety ordinances, rules, and orders.”

Plaintiff J.P. (hereinafter “Plaintiff”) moves for a protective order, requesting that Plaintiff’s deposition be taken remotely by videoconference and that should Defendant Rex Bullington (“Defendant”) attend the deposition, his video camera must be shut off so that he is not visible to Plaintiff. Plaintiff states that Plaintiff’s counsel has conferred with Defendant’s counsel regarding Defendant’s attendance, but Defendant’s counsel insisted that Defendant be allowed to attend the deposition.

In support of the motion, Plaintiff provides the declaration of Cynthia Phillips, the guardian ad litem for Plaintiff. Ms. Phillips states that as a result of being sexually battered by Defendant, Plaintiff has been diagnosed with post-traumatic stress disorder. (C. Phillips Decl., ¶2.) She states that when someone brings up Defendant, Plaintiff is visibly disturbed, becomes despondent, refuses to talk, and leaves the room. (Id., ¶3.) She states that as a result of Defendant’s sexual batteries of Plaintiff, she moved Plaintiff to a different school. (Id., ¶4.) The Court notes that Plaintiff has not provided a declaration and no declarations from healthcare professionals have been provided.

While the Court understands Plaintiff’s concerns and discomfort in attending his deposition with Defendant present in a case such as this, Defendant has the right to attend the deposition of Plaintiff. As stated in CCP § 2025.420(b)(12), a protective order may be granted to exclude “designated persons, other than the parties to the action….” (Emphasis added.) Further, pursuant to CRC Rule 3.1010, “Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided:… (3) Any party or attorney of record may be physically present at the deposition at the location of the deponent with written notice of such appearance served by personal delivery, email, or fax, at least five court days before the deposition, and subject to Code of Civil Procedure section 2025.420. An attorney for the deponent may be physically present with the deponent without notice.” (CRC Rule 3.1010(a)(3); see e.g., Willoughby v. Superior Court (1985) 172 Cal.App.3d 890.)[1] Plaintiff initiated this action against Defendant. Defendant is afforded the right under the California Code of Civil Procedure and California Rules of Court to attend party depositions and eventually trial where Plaintiff may be present. As stated by the Court of Appeal in Willoughby:

To prevent a client's presence during the cross-examination of the opposing party at deposition would significantly and unreasonably impair trial counsel's ability to effectively represent his client. In many cases it is critical for counsel to be able to confer with his client at his side concerning responses being received during the course of a deposition. To preclude this type of attorney-client conferring and to alternatively require the attorney to leave the deposition room to confer with his client outside or make contact by phone would disrupt the discovery processes and would constitute a wide departure from the existing rights of discovery.

(Willoughby v. Superior Court (1985) 172 Cal.App.3d 890, 892.) As such, the Court will allow Defendant to attend the deposition of Plaintiff.

Next, Plaintiff argues that the deposition should be conducted over videoconference rather than an in-person deposition. Plaintiff argues that the Court may order a deposition to be taken by other means based upon good cause to protect a party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. (CCP § 2025.420(b).) Had the parties agreed to a deposition over videoconference, the Court would have been inclined to grant such a request. A copy of the deposition notice is not provided, but it can be understood by way of the arguments presented by the parties that Defendants intend to conduct an in-person deposition of Plaintiff, as opposed to a deposition over videoconference. Plaintiff has not raised any arguments in his moving papers regarding the distance of the deposition that may make it inconvenient for him to attend. (See CCP § 2025.250.) Further, CCP § 2025.310, which was enacted during the pandemic period, gives parties (who are not being deposed) and their attorney of record the option to attend a deposition of a deponent physically or over videoconference. However, the same option is not provided for the actual deponent. The Court understands that Plaintiff’s request for a remote deposition over videoconference is based on his alleged feelings of anxiety, PTSD, etc. with respect to Mr. Bullington. However, this alone is not a sufficient ground to grant a protective order.

As such, the motion for protective order is denied. The Court expects that Mr. Bullington will be fully briefed on his conduct at the deposition by Defense counsel, and that he will not attempt to contact Plaintiff or interact with him at the deposition.

The Court understands the reasons under which Plaintiff filed this motion and will decline to award sanctions in favor of Defendant at this time.

[1] In Willoughby, the plaintiff sought a protective order to prevent the attendance of her employer and supervisors from attending her deposition. She claimed that they subjected her to harassment, physical and verbal abuse, intimidation, threats, etc. She stated I her affidavit that she did not believe she could control her emotions if she was required to recount the matters in their presence and believed she could testify more calmly with a better use of her mind for recall and deliberation if the deposition were not done in the presence of defendants while under the eyes of a video monitor. The trial court permitted the taping of the deposition, but ordered the defendants not to attend. The Court of Appeal issued a writ of mandate directing the lower court to vacate its protective order to the extent it forbade defendants’ attendance at the plaintiff’s deposition.

Superior Court of California

County of Los Angeles

Department B