Judge: Nathan Vu, Case: 21-01218687, Date: 2022-08-29 Tentative Ruling

Motion for Protective Order

The Motion for Protective Order of Plaintiff Sung Keen Kim is DENIED.  Plaintiff’s request for sanctions is DENIED.

Plaintiff is ORDERED to appear for his deposition pursuant to the protections offered by Defendants’ counsel and allowed by law.

Plaintiff Sung Keen Kim moves for a protective order allowing Plaintiff to appear for deposition remotely due to concerns regarding COVID-19.

A party may move for a protective order to protect the party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Civil Proc. Code § 2025.420, subd. (b).)

The burden is on the moving party to establish good cause for whatever order is sought. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) “Good cause” requires specific facts demonstrating unwarranted annoyance, embarrassment, oppression, or undue burden and expense. (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.)

The Code of Civil Procedure and the Rules of Court were recently amended to authorize the taking of remote depositions. (See Civil Proc. Code, § 2025.310; Rules of Ct. R. 3.1010.)

The law allows parties and their counsel to be physically present at the deposition at the location of the deponent, subject to a motion for a protective order pursuant to Civil Procedure Code section 2025.420. (See Civil Proc. Code, § 2025.310, subd. (b); Rules of Court R. 3.1010, subd. (a)(3).)

In response to the motion for protective order, Defendants point out that an in-person deposition will give them an opportunity to assess Plaintiff’s credibility and how he will present to a jury at trial.  In addition, if the deposition is conducted remotely, it will be more difficult to determine whether Plaintiff is being coached or given answers.  Finally, Plaintiff has requested a Korean translator and to conduct a remote deposition with a translator will be very difficult.

Plaintiff has expressed only general concerns regarding COVID-19 because the infection rates have been increasing, but Plaintiff has not provided any specific evidence that Plaintiff is at any particular risk of contracting COVID-19.  For instance, Plaintiff has not provided any evidence that he is immunocompromised or that he is living with an immunocompromised individual, and or that he is in a category of persons who are at risk.  Plaintiff is only 53 years old.

Plaintiff has not met his burden of providing specific facts demonstrating “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  (Civil Proc. Code, § 2025.420(b).) 

While the Court is sympathetic to Plaintiff’s general concerns pertaining to COVID-19, Defendants’ counsel has stated that his office will accommodate those concerns by reserving a large conference room, providing evidence of vaccination and/or negative COVID-19 testing on behalf of those in attendance, and requiring masks for those attending the deposition.  Defendants’ counsel also acknowledged that the law requires the court reporter to be in a different location, at the request of Plaintiff.  These safeguards adequately address Plaintiff’s general health concerns.

Defendants have not been unsuccessful in opposing this motion and Defendants have acted with substantial justification.  (See Civil Proc. Code, § 2025.420, subd. (h).) There is no basis to grant sanctions.

Defendants shall give notice this ruling.