SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) filed this motion to compel the deposition of Plaintiff Brenda Jackson (“Plaintiff Jackson”), and Plaintiff Jackson filed motion for a protective order regarding her deposition.  

Plaintiff’s counsel contends that Plaintiff Jackson is an incompetent individual with dementia due to Alzheimer’s disease, and that legal matters are being handled by and through her guardian at litem. Plaintiff’s counsel contends Plaintiff Jackson is unable to recall many details of the alleged incident and may likely not be testifying in any proceedings or at trial in this case.  

Defendant avers that it served two deposition notices upon Plaintiff Jackson, and that defense counsel had attempted to schedule Plaintiff Jackson’s deposition with Plaintiff’s counsel several times. Defendant contends that there is limited medical evidence to support that Plaintiff Jackson is incompetent to testify at a deposition, and no evidence of the severity of her condition such that she would be unable to communicate, understand, and tell the truth.  

 

II. Discussion 

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.  (Code Civ. Proc., § 2025.010.)  A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.  (Code Civ. Proc., § 2025.280, subd. (a).) 

The party served with a deposition notice waives any error or irregularity unless that party promptly serves a written objection at least three calendar days prior to the date for which the deposition is scheduled.  (Code Civ. Proc., § 2025.410, subd. (a).)  In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice.  (Code Civ. Proc., § 2025.410, subd. (c).) 

“If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”  (Code Civ. Proc., § 2025.450, subd. (a).) 

As for protective orders, 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. This protective order may direct that the deposition not be taken at all.  (Code Civ. Proc. § 2025.420 (b)(1).)   

Plaintiff’s counsel objected to Plaintiff’s Jackson’s deposition on the grounds that she is a 75-year-old-woman who “could possibly be an incompetent individual and further inquiry was necessary to determine her ability to testify.” (Plaintiff Opp., p. 8, lines 20-21.) Plaintiff’s counsel argues Dr. Jonathan Eskenzi’s records mention Plaintiff Jackson has difficulty recalling “day to day” matters, that she has an abnormal brain MRI, and cognitive impairment associated with dementia and Alzheimer’s. Plaintiff’s counsel further contends that her lack of cognitive awareness and poor memory renders her incapable of offering any testimony in this matter.  

The Court reviewed the medical records provided by Plaintiff. The medical records are for a patient named “Brenda Bailey,” which the Court presumes is the alternate name for Plaintiff Brenda Jackson. At a telehealth consultation on February 24, 2022, the treating provider documented the head injury 3 years prior and the abnormal brain MRI, but also noted in relevant part, “She forgets where she is and who came with her, faces. Lasts 4-5 days at its longest. In terms of daily functioning she misplaces items. Long term memory ok.” Furthermore, the history of present illness taken from Plaintiff Jackson’s daughter on May 18, 2022 provides that Plaintiff Jackson “has good long term memory from her childhood up to recent year; but unable to recall short term events up to a week.” Even if Plaintiff Jackson demonstrates forgetfulness for day to day events and requires assistance with activities of daily living, Plaintiff’s counsel has not demonstrated her condition has made it impossible, oppressive, or an undue burden for Plaintiff Jackson to sit for her deposition. The medical records suggest Plaintiff Jackson’s long-term memory is without issue, and there is no support of any condition impeding her ability to communicate or severely impeding her general competency. Therefore, Plaintiff’s counsel has not provided sufficient evidence to warrant a protective order preventing Defendant from taking Plaintiff Jackson’s deposition.  

Based on the foregoing, Defendant’s motion to compel Plaintiff Jackson’s deposition is GRANTED.  (CCP § 2025.450(a).). Plaintiff Jackson’s motion for protective order is DENIED. 

Plaintiff Jackson is ordered to appear for deposition at a date, time, and location to be noticed by Defendant. Counsel for the parties are ordered to meet and confer to determine the date and time for the deposition. If Plaintiff’s counsel does not meaningfully participate in the meet and confer process, Defendant may unilaterally set a date and time for the deposition with at least ten days’ notice to Plaintiffs (notice extended per Code if by other than personal service).