Judge: Mark H. Epstein, Case: 21SMCV00788, Date: 2023-01-10 Tentative Ruling

Case Number: 21SMCV00788    Hearing Date: January 10, 2023    Dept: R

This is a motion for a protective order, and it is GRANTED.

In this case, a tenant leased certain property.  A few days into the lease, the tenant abandoned the property asserting that the property was uninhabitable.  The tenant is the plaintiff here and alleges that defendant (the landlord) had advance knowledge of the problems. 

At issue is plaintiff’s attempt to depose the property’s owner.  Defendant seeks a protective order, claiming that the landlord is 93 years old and in very poor health.  According to the defense, well before the events leading up to this case she turned management of the property over to her daughter, who is the person with whom plaintiff actually interacted.  Defense counsel claims that the defendant actually knows nothing pertinent here and that a deposition will put her in physical jeopardy.

Normally, the court would side with plaintiff.  While it could well be that the owner (who lived in the house for many years) actually knew nothing about its condition at the time of the lease, plaintiff need not take defense counsel’s word for it.  Further, plaintiff offered to take the deposition remotely, to ensure that no session of the deposition lasts for more than 1 hour a day, and to allow frequent breaks—as often as every 15 minutes.  Those are extraordinary concessions by counsel.  But that said, defense counsel has provided a declaration under penalty of perjury from defendant’s doctor stating that any deposition—even one as limited as plaintiff offers—puts defendant at substantial physical and emotional risk and that there is just no way to mitigate the risk.

The bottom line is that the court is simply not going to put defendant’s health at risk here.  The court is also aware of defendant’s contention that plaintiff is over-litigating the case, serving an excessive amount of written discovery.  And the numbers are a bit troubling.  But that is not going to drive the ruling here, and there is no doubt but that plaintiff’s counsel has offered a number of concessions concerning the deposition to mitigate the health risks.  The court cannot, however, get past the doctor’s declaration stating that those measures are insufficient.

The court will discuss the option of a deposition on written questions.  It is a possible way to eliminate the risk, although the court is not sure that moves the needle.  It could be that the doctor will need to weigh in on that question.

That said, however, the court will condition its likely order granting the motion on the further order that defendant not testify at trial and that defendant not provide any substantive declarations in this case (other than for purposes of authenticating documents).  It is one thing to say that a person is too frail to sit for deposition even if carefully limited in manner; it is another to say that the deposition is too much but testimony in court is just fine.  In addition, depriving plaintiff of defendant’s deposition puts plaintiff in the untenable position of not having any way to impeach defendant’s trial testimony should plaintiff believe the testimony to be false (or to raise a D’Amico challenge to a declaration) due to the asserted health risk.  But if the defendant is not going to testify in court or by way of deposition, the prejudice is not only mitigated, it is likely eliminated.  After all, the daughter is available for deposition and written discovery can still be taken.  And the daughter will likely not be able to testify at trial as to any hearsay she obtained from her mother.