Judge Lee W. Tsao, Case 21NWCV00645 2023-01-12 Tentative Ruling

Judge: Lee W. Tsao, Case: 21NWCV00645, Date: 2023-01-12 Tentative Ruling

Case Number: 21NWCV00645 Hearing Date: January 12, 2023 Dept: C

CAPT v. SZERDAHELYI

CASE NO.: 21NWCV00645

HEARING: 01/12/23

TENTATIVE ORDER

Plaintiffs’ Motion for a Protective Order is DENIED in part and GRANTED in part.

Moving Party to give Notice.

Plaintiffs move for a protective order “that will prevent Defendant… and her agents from conducting examination on oral deposition or otherwise will order the re-scheduling of those depositions, of the following persons: third party-witnesses Sam Capt and the Persons Most Knowledgeable at City of Lakewood.” (Notice ii:4-8.) Plaintiffs indicate that “[a]t the very least [the depositions’ must be re-scheduled due to the simple fact that the dates that they were unilaterally set by Defendant’s counsel are dates on which Plaintiffs’ counsel is already committed for the depositions of the Plaintiffs in an Orange County Superior Court case. Properly, these two depositions should be precluded in their entirety, but if there is any legitimate inquiry that is to be sought from witness Sam Capt, it should be by way of written questions.” (Motion 3:13-19.)

In Opposition, Defendants argue that the deposition testimony of Sam Capt is necessary because he is a percipient witness—he lives in the residence with Plaintiffs and has knowledge about the ingress and egress at issue in this action; he uses the alleged easement at issue in this action; and he has been questioned by law enforcement in connection with his use of the alleged easement. Also in Opposition, Defendants indicate that they are no longer pursuing the deposition of the PMK from the City of Lakewood.

In Reply Plaintiffs maintain that the deposition of Sam Capt should have been rescheduled and/or be taken as written questions.

CCP §2025.420(a) authorizes a party to move for a protective order to protect a witness from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. The protective order may include an order that the deposition be taken at a different time, and that the scope of the examination be limited to certain matters. (CCP §2025.420(b).)

It is undisputed that Sam Capt is a percipient witness in this action. The parties dispute whether Plaintiffs have an easement to an approximate 26.5 foot strip of land measured from the western property line of Defendants’ Property, which Plaintiffs have used to drive their cars and boats over to enable them to park on the western side of Plaintiffs’ property. Sam Capt lives in Plaintiffs’ residence and utilizes the disputed easement regularly. The motion to preclude the deposition of Sam Capt entirely is denied. The motion to limit Sam Capt’s deposition to a written deposition only is also denied— Defendants should not be foreclosed from the ability to ask follow-up/additional questions based on Sam Capt’s responses.

The Motion is granted in part—Defendants are foreclosed from unilaterally setting the date for the deposition to occur. The parties are ORDERED to meet and confer to set up a date and time for the oral deposition of Sam Capt, limited to percipient witness matters. The deposition shall occur by no later than 30 days from the date of the Court’s issuance of this Order.

Given the mixed ruling, sanctions are denied.