Judge: Mark H. Epstein, Case: 21SMCV01053, Date: 2024-03-07 Tentative Ruling

If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3629 advising her that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing.

Case Number: 21SMCV01053    Hearing Date: March 7, 2024    Dept: I

This is a motion for a protective order.  Plaintiff filed a breach of the warranty of habitability case against defendant.  Defendant seeks a protective order involving her deposition.  Plaintiff opposes.  

The gist of the motion is that defendant is mentally and physically unable to sit for her deposition.  She therefore seeks to have the deposition done by way of written questions or to go by way of one hour sessions, or both.  The principal justification for the motion is a purported lack of mental capacity, which defendant asserts was demonstrated during the first session of her deposition, as well as a doctor’s note.  In opposition, plaintiff contended that the deposition demonstrated a lack of recall, but not enough to warrant a protective order.  And (understandably) plaintiff does not want the deposition to go by the cumbersome and time-consuming way of written questions.  The court is no fan of written questions, nor would it address the problem.  A deposition on written question is not an interrogatory.  An interrogatory is a written question to which the responding party has 30 days to answer and to which the responding party is presumed to do a reasonable investigation in order to be able to answer.  The responding party is entitled to the assistance of counsel in responding to the interrogatory.  A deposition by written questions looks a lot like a normal deposition.  The difference is that instead of opposing counsel asking the questions, the deposition officer asks the questions—which have been written out by opposing counsel.  The witness has no early look at the questions unless the party taking the deposition wants to forward the questions.  (Counsel for the witness will see them because they must be included in the notice.  That is followed 30 days later by cross-examination question, 15 days later by re-direct from the deposing party, and 15 days later by final questions from the witness’ counsel.  That means that if the court were to go that way, the deposition would be held the week before trial and in one hour blocks.  That is, frankly, not even a rational suggestion by the defense.)  The witness is expected to answer the questions on the spot.  The witness cannot take a break and consult with others or investigate.  Its use is therefore somewhat minimal.  It is helpful in countries that limit depositions—they might allow a deposition on written question but not a regular deposition.  It made a fair amount of sense in the pre-Zoom days, where travel could be difficult and counsel might save a lot of money by proceeding in such a fashion rather than by traveling to a distant locale.  It works where the questions are very limited in nature—like those that might be asked of a custodian of records.  It was never designed to be used routinely, and it is a poor substitute for a party’s deposition.  And if a party lacks the mental ability to go forward with a regular deposition, going forward with a deposition on written questions will not solve that problem.

A more likely order would be to limit the length of the deposition.  For example, to require breaks every hour or so.  That would work, although the proposed one hour a day makes for a very long deposition and one that would be hard to complete given the May 2024 trial date.

In the opposition, defendant (through counsel) offered not to testify in return for not being further deposed.  The court viewed that as a viable solution.  And frankly, the court is somewhat puzzled as to why plaintiff would not jump at the chance.  But that said, plaintiff rejected the offer.  The court has some concern that plaintiff’s motive is not truly to get information but rather to harass defendant, for the court cannot fathom why plaintiff would not otherwise agree that if defendant won’t testify, then defendant won’t be deposed.

Doctor Kim provided a doctor’s note stating that plaintiff’s medical condition meant that she was “not able to perform new and complicated tasks such as serving on jury duty, attending court or subpoena or deposition.”  He advised that she receive any communications in writing and that she be allowed to respond in writing.  Of course, that note is inadmissible hearsay—it is not in the form of a declaration.  If, however, defendant will produce that same opinion in the form of a declaration, the court would be inclined to GRANT the motion for a protective order.  The deposition will then proceed in one hour sessions—no more than an hour a day—which is what defendant proposed.  That said, even if the deposition goes forward, it is far from clear to the court whether defendant will be allowed to testify.  The medical bar on “attending court” would seem to preclude testifying.  Further, the reasons given include “cognitive impairment with poor memory” although there were physical ailments as well.  Of course, the court will entertain all reasonable accommodations, but it might be that this witness just cannot provide reliable testimony.  The court would have ended the deposition entirely had defendant been willing to agree not to testify as a witness.  Defendant also claims that the prior deposition transcript reveals defendant’s incapacity.  While the part to which defendant cites is troubling, other parts of the transcript are less so (and the court has reviewed the entire transcript).  The court cannot say, on this record, that defendant is incapacitated or unable to be deposed if the sessions are short.

Defendant has 5 court days to provide the doctor’s note in the form of a declaration under penalty of perjury.  Absent that, the court has no evidentiary basis to grant the motion and the motion must be DENIED.  If the declaration is provided (and it need say no more than did the note), then the motion will be GRANTED in the sense that the deposition will go from day to day (weekends and holidays excepted) until complete in one hour blocks starting 10 court days from today.  If plaintiff agrees to defendant’s offer not to call defendant as a witness or offer defendant’s testimony, the court will GRANT the motion by terminating the deposition forthwith.