Judge: Lynne M. Hobbs, Case: 21STCV46846, Date: 2023-12-04 Tentative Ruling

Case Number: 21STCV46846    Hearing Date: January 3, 2024    Dept: 30

JUAN ANGEL GONZALEZ RUELAS,, BY AND THROUGH HIS GUARDIAN AD LITEM YANIRA CAROLINA GONZALEZ, et al. vs BRYAN ALEXANDER RAMOS RODRIGUEZ

TENTATIVE

The motion to be relieved as counsel for Defendant, Bryan Alexander Ramos Rodriguez, is CONTINUED. Counsel has filed the mandatory forms. However, the proposed order has the incorrect/outdated hearing dates listed in this matter. Further, the client has not been served with the notice of motion, motion, declaration and proposed order.

Counsel is ordered to file a corrected proposed order and declaration with all correct/current hearing dates in this matter, and serve the client at the last known address with the moving papers.

Defendant’s motion for a protective order is GRANTED, but limited to 60 days from the date of this order.

Moving party is ordered to give notice.

Legal Standard

Code of Civil Procedure sections¿2030.090(a), 2031.060(a),¿and 2033.080(a) provide that a party upon whom interrogatories, inspection demands or request for admissions have been propounded may “promptly” move for a protective order.

CCP section 2025.420(a) provides that “[b]efore . . . a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.” (CCP § 2025.420(a).) “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.” (CCP § 2025.420(b).) In fashioning a protective order, a court has the discretion to, among other things, order “[t]hat the deposition not be taken at all,” “[t]hat the deposition be taken only on certain specified terms and conditions,” or “[t]hat the deponent’s testimony be taken by written, instead of oral, examination.” (CCP § 2025.420(c)(1), (5), (6).)

The burden of proof is on the party seeking the protective order to show “good cause” for the order he or she seeks. (Fairmont Insurance Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) A motion for a protective order “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2030.090.) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

Discussion

Defendant moves for a protective order to preclude Plaintiffs from seeking discovery from Defendant until Defendant has been located by his counsel and it can be confirmed that Defendant has been made aware of the representation and pending discovery. Despite defense counsel's substantial efforts to contact Defendant, such as sending letters, making telephone calls, and hiring a private investigator on multiple occasions, there has been no confirmation that Defendant has received any information about this litigation or discovery. (Craver Decl., ¶ 4.) In June 2023, Defendant's counsel prepared and Answered the Complaint in order to avoid the taking of a default against Defendant by Plaintiffs. (Id., ¶ 7.) Defendant asks that Plaintiffs not be allowed to proceed with their requests for responses to written discovery and Defendant's deposition until such time as it can be confirmed Defendant is aware of the discovery and case.

Defendant argues that California courts have long recognized that it is well within the proper discretion for a trial court to grant appropriate relief, on the basis of oppression, from discovery requests if: (1) the court is satisfied that the defendant is not evading the lawsuit or discovery demand; and (2) that reasonable efforts have been made and are ongoing to find the defendant an apprise the defendant of litigation and the discovery obligation entails it. (Brigante v. Huan (1993) 20 Cal.App.4th 1569.)

Plaintiff opposes. First, Plaintiff argues that the motion is untimely because it was not filed within the 30 days the discovery was due after it was propounded, and instead, Defendant waited months before filing this motion. Plaintiff also argues that the meet and confer requirement has not been met.

The Court finds that Defendant promptly moved for a protective order as soon as he realized Defendant’s interests were at stake, which is after Plaintiff filed a motion to compel further responses to the requests for discovery. Further, while the meet and confer declaration and the email correspondence between the parties do not specifically discuss a protective order, the parties have met and conferred regarding the discovery responses and the failure to locate Defendant, which the Court finds is sufficient. (Craver Decl., Exh. E.)“‘[T]he issuance and formulation of protective orders are to a large extent discretionary”’ and a ruling on such motions will not be disturbed absent abuse of discretion. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316-17.) Moreover, the Court is guided by the principles outlined in Brigante v. Huan, supra, 20 Cal.App.4th 1569.

Here, it is apparent that defense counsel has made diligent efforts to contact Defendant, and further, it does not appear Defendant has any knowledge of the lawsuit, as he was served by publication and defense counsel answered on his behalf. Further, Defense counsel has communicated with Plaintiff’s counsel regarding the reasons for failing to provide verified responses to the discovery requests.

However, a blanket protective order precluding discovery indefinitely would be prejudicial as it would interfere with Plaintiffs’ ability to conduct discovery and prosecute this case. For these reasons, the Court GRANTS Defendant’s Motion for Protective Order for a limited period of 60 calendar days to allow defense counsel an additional 60 days to locate and communicate with Defendant.

Plaintiffs’ request for sanctions is denied because this motion is being granted.