TENTATIVE RULING

Calendar: 5

Date: 9/9/2022

Case No: 21 GDCV00776 Trial Date: December 5, 2022 

Case Name: Perez, et al. v. Siracuse, et al. 

MOTION FOR PROTECTIVE ORDER

Moving Party: Defendant and Cross-Complainant Eveline J. Siracuse

Responding Party: Plaintiffs Jennifer Perez and Matthew Perez 

RELIEF REQUESTED BY MOVING PARTY:

Order prohibiting a second deposition of Siracuse. 

 

FACTUAL BACKGROUND:

Plaintiffs Jennifer Perez and Matthew Perez bring this action for declaratory relief against plaintiff Jennifer Perez’s mother, defendant Eveline J. Siracuse, trustee of the Eveline J. Siracuse 2003 Trust.  Plaintiffs allege that they have resided at real property on Santa Barbara Avenue in Glendale, and that in May of 2019, defendant filed a complaint for partition of the subject property against plaintiffs as defendants, which defendant Siracuse voluntarily dismissed shortly before trial was to begin. 

Plaintiffs allege that in September 2002, Siracuse acquired the subject property, using $263,000 of her money as a down payment, and obtaining a loan in the amount of $267,000.   Plaintiff alleges that the parties had an understanding that plaintiffs would reside in the property, make all payments on the loan, property taxes, and homeowners insurance, and that after plaintiffs paid Siracuse the amount of her down payment, they would have 100% ownership of the property, and that Siracuse would not seek to force a sale of the property while plaintiffs were raising their children. 

The complaint alleges that in 2009, defendant Siracuse gifted to plaintiffs the value of the equity in the property, plaintiffs took out a loan to purchase the property, and Siracuse received over $89,000 as a partial repayment of the down payment.  In January of 2010, Siracuse requested that she be placed back on title on the property, and plaintiffs agreed to do so, with the same understanding that after plaintiffs paid defendant the amount of her down payment, they would have 100% ownership of the property, and that defendant would not seek to force a sale of the property while plaintiffs were raising their children.  

The complaint alleges that there is an actual controversy between plaintiffs and defendant, and seeks a declaration of the respective rights of the parties regarding whether defendant can force a sale of the property, whether defendant is entitled to anything more than her down payment, less the $89,524.00 she already received from plaintiffs in the event of a sale of the property, and whether plaintiffs will be charged the equivalent of “rent” in the event of the sale of the property. 

Defendant Siracuse has filed a cross-complaint for partition, alleging that Siracuse, as cross-complainant, holds an undivided 60% fee interest in the property, with plaintiffs as cross-defendants holding a 40% fee interest in the property, and seeking that the property be sold and the net proceeds divided between cross-complainant and the Perez cross-defendants in accordance with their respective percentage interests.   

The file shows that on November 17, 2021, the court deemed this case related to a previous case brought by defendant Siracuse as plaintiff against plaintiffs, the Perez parties, as defendants.  The minute order states:

“The Court finds that the following cases, 21 GDCV00776 and 19GDCV00552, are related within the meaning of California Rules of Court, rule 3.300(a). 21GDCV00776 is the lead case. For good cause shown, said cases are assigned to Judge Ralph C. Hofer in Department D at Glendale Courthouse for all purposes.”

On January 31, 2022, the court entered a minute order, ordering, “The parties stipulate that discovery in the dismissed underlying action shall apply to this case.”  

ANALYSIS:

Defendant and cross-complainant Eveline J. Siracuse seeks a protective order prohibiting the Perez parties from taking a second deposition of Siracuse.  

Defendant argues that defendant has already been deposed in the dismissed related underlying action and should not be deposed again for a second time in this matter.   

The motion indicates that plaintiffs have served a deposition notice in this matter, but the notice has not been submitted to the court.   

Defendant relies on CCP § 2025.610:

“(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.

(b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.”

The determination of the court concerning good cause is reviewed for abuse of discretion.  McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 98.  

Defendant argues here that based on the parties’ stipulation and minute order and the fact that the underlying action has been deemed related to the instant action and involves identical parties and issues, the taking of a second deposition of Siracuse is prohibited and otherwise inappropriate. 

As argued in the opposition, there has been no deposition conducted in this action, and defendant has not been served with a previous deposition notice pursuant to Section 2025.240 in this action, so the prohibition against taking a “subsequent deposition of that deponent,” does not apply here.  

The minute order indicating that the parties have stipulated that discovery in the underlying action shall apply to this case does not in fact include a stipulation by the parties, and defendant has failed to submit such a stipulation in support of the motion.  Plaintiffs in opposition argue that a formal written stipulation does not exist.  In any case, the stipulation noted by the court in its minute order appears to be somewhat limited, “The parties stipulate that discovery in the dismissed underlying action shall apply to this case.”  This comment does not specifically state that no further discovery in this matter may be pursued, and it would appear that if the parties were seriously contemplating that no further discovery in this action was to be conducted, they would have entered into a clear stipulation to that effect.  The declaration of defendant submitted in support of the motion in fact indicates that defendant has responded to written discovery propounded in this action, suggesting that the stipulation was not that the parties would not pursue discovery in this action.  [Siracuse Decl., para. 11].    

The Case Management Statement submitted by defendant in this matter states that the party requests that the following additional matter be determined at the CMC, “Stipulated Order that discovery conducted in Related Case be used for pre-trial dispositive motion and/or at trial.”  [CMS, filed 11/1/2022].  This statement requests an order that discovery in the other case may be used in this matter, not that the discovery in this matter be deemed completed by that previous discovery.  

Plaintiffs have failed to establish that the statute relied upon applies to render a subsequent deposition improper in this matter, as there has been no first deposition in this matter.   

With respect to protective orders in connection with depositions, CCP § 2025.420 provides, in pertinent part:

“(a) Before, during, or after a deposition, any party...may promptly move for a protective order.  The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

(b)  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 include, but is not limited to, one or more of the following directions:

(1) That the deposition not be taken at all.”

The moving papers do not really attempt to establish good cause, other than that a deposition was taken in the underlying action, when it appears that the statutory basis for that argument does not apply.  

The motion argues that counsel for plaintiffs has offered vague generalizations regarding any new information that is to be sought at a deposition of defendant in this matter, but the burden to show good cause for the issuance of a protective order withholding discovery is on the party seeking the protective order, defendant here.  

The motion argues, by way of conclusion, that the parties are related by blood, that Siracuse is 71 years old with health issues, a widow living on a fixed income, and that given the cost of this litigation, and other expenses, needs to convert her property interest into a liquid asset.  Defendant argues that emotions between mother and daughter and mother and son-in-law remain hot and volatile, and pre-trial personal contact should be minimized.  

The declaration of defendant submitted with the motion indicates that defendant underwent back surgery at some point, and that the previous litigation with her daughter, as well as the COVID 19 pandemic, took an emotional toll, and adversely affected defendant’s “physical health and mental well-being,” so that the related action was dismissed without prejudice pursuant to doctor’s order.  [Siracuse Decl., para.  8].  It is not clear if the back surgery affects defendant’s ability to sit for long periods, which could be accommodated if necessary, and it is not clear that any physical and mental well-being issues could not be similarly addressed by accommodations directed to such issues, had they been more clearly addressed in the motion.   The desire to avoid personal contact with family members also could have been addressed, if appropriate, by a request for a more limited protective order.  Overall, defendant has failed to establish good cause for denial outright of a deposition of a party in this matter, to which plaintiffs are statutorily entitled pursuant to CCP section 2025.010 (“Any party may obtain discovery…by taking in California the oral deposition of any person, including any party to the action.”)   

The opposition argues that defendant has failed to show good cause for the issuance of the protective order sought, which is defendant’s burden to show, but focuses on the argument that plaintiffs are seeking a 

second deposition, when they are not.  The opposition also indicates that there is new matter raised in this action 

which plaintiffs should be permitted to explore in deposition, including the allegations that the payments being made with respect to the property by plaintiffs approximated the rent plaintiffs were paying for their apartment, and that the prior complaint was dismissed due to health concerns.  Plaintiffs also argue that defendant has raised fourteen affirmative defenses in her answer, which were not raised in the prior action, and allegations of new expenditures for the property with respect to adding a fence to secure the property’s backyard.  The opposition also argues that no burden or oppression can be shown in this matter, as the previous deposition lasted only three hours, and was conducted with courtesy.  [Barker Decl., para. 3]. 

Overall, defendant has failed to establish that defendant is entitled to the protective order sought, that is, that the deposition not be conducted at all.   The motion accordingly is denied. 

Monetary Sanctions

Both sides seek monetary sanctions.  

The moving party fails to establish entitlement to relief, and also does not address the issue of sanctions in the memorandum of points and authorities.  

Plaintiffs in opposition fail to submit any evidence, such as the declaration of counsel, in support of any award of sanctions. 

CCP § 2023.040 clearly requires that:

 “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.  The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” 

(Emphasis added). 

The parties have failed to comply with these statutory mandates, and no sanctions will be awarded. 

RULING:

Motion for Protective Order Prohibiting Second Oral Deposition of Defendant is DENIED. 

Monetary sanctions sought are DENIED.  

Monetary sanctions sought in the opposition are DENIED. 

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it 

is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.