Judge: Martha K. Gooding, Case: 2019-01106337, Date: 2022-09-12 Tentative Ruling

Motion for Protective Order

The Motion by Plaintiff A.B. Doe (“Plaintiff”) for a protective order to prevent Defendant Saddleback Valley Unified School District from taking his deposition is DENIED.

Before, after or even during a deposition, “for good cause shown,” the court may grant a protective order to control the deposition proceedings or the information obtained thereby. (See Code Civ. Proc., § 2025.420.)  The court is empowered to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (See Code Civ. Proc., § 2025.420(b).)  The “burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; see also Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.)

Plaintiff moves to preclude his deposition from being taken on the grounds that he is incompetent. 

Plaintiff states that he is an autistic minor with special needs. When the date of incident occurred, Plaintiff was six years old. Plaintiff is now ten years old. Plaintiff has the following mental health diagnoses: Post Traumatic Stress Disorder, Autistic Disorder, Mixed Expressive and Receptive Speech Disorder, Development Delay, Agitation, Anxiety, Distractibility, Emotional Lability, Impulsivity, Negative Statements, and Sad/Pained/Worried Expression.

Plaintiff submitted a declaration from his Licensed Professional Counselor, Rochelle Duke-Rutledge.  The declaration is brief; Ms. Duke-Rutledge declares in part:

·       I am a [sic] currently treating Plaintiff for the sustained injuries as a result of this incident which includes but [sic] not limited to Post Traumatic Stress Disorder.

·       I began treating Plaintiff on May 18, 2022 and have seen him for four sessions.

·       In my professional opinion, Plaintiff is not fit to stand [sic] a deposition and allowing his deposition to be taken could result in exacerbation of symptomology.

The Court does not find this sufficient to preclude the taking of Plaintiff’s deposition.  Plaintiff cites no legal authority in which a court ruled that a parties’ deposition could not be held based on similar evidence. 

Evidence Code section 700 states, “[e]xcept as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.”  And Evidence Code section 701 provides that a person is disqualified as a witness only if s/he is “[i]ncapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or []

[i]ncapable of understanding the duty of a witness to tell the truth.” 

Plaintiff has submitted no evidence to suggest that he is not competent to testify based on the criteria set forth in the Evidence Code. 

In granting Defendant’s prior motion to compel Plaintiff’s deposition, the Court ordered that his deposition be conducted in segments of no more than 3 hours each (exclusive of breaks), i.e., no more than 3 hours of deposition testimony (exclusive of breaks) per day – unless the parties agreed otherwise.  The Court will hear from the parties at the hearing regarding these limitations.

Defendant is ordered to give notice.