Judge: Serena R. Murillo, Case: 20STCV20180, Date: 2022-08-23 Tentative Ruling
Case Number: 20STCV20180 Hearing Date: August 23, 2022 Dept: 29
TENTATIVE
Defendant Nancy Donato’s motion for a
protective order is DENIED.
Legal Standard
Protective
Order
CCP section
2025.420(a) provides that “[b]efore . . . a deposition, any party, any
deponent, or any other affected natural person or organization may promptly
move for a protective order.” (CCP § 2025.420(a).) “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.” (CCP §
2025.420(b).) In fashioning a protective order, a court has the
discretion to, among other things, order “[t]hat the deposition not be taken at
all,” “[t]hat the deposition be taken only on certain specified terms and
conditions,” or “[t]hat the deponent’s testimony be taken by written, instead
of oral, examination.” (CCP § 2025.420(c)(1), (5), (6).)
The burden of proof is on the party seeking the protective order to
show “good cause” for the order he or she seeks. (Fairmont Insurance
Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) A motion for a
protective order “shall be accompanied by a meet and confer declaration under
Section 2016.040.” (Code Civ. Proc., § 2030.090.) “A meet and
confer declaration in support of a motion shall state facts showing a
reasonable and good faith attempt at an informal resolution of each issue
presented by the motion.” (Code Civ. Proc., §
2016.040.)
“In accordance with the liberal
policies underlying the discovery procedures, California courts have been
broad-minded in determining whether discovery is reasonably calculated to lead
to admissible evidence. (Pacific Tel. & Tel. Co. v. Superior Court (1970)
2 Cal.3d 161, 172; Pettie v. Superior Court (1960) 178 Cal.App.2d 680,
687.) As a practical matter, it is difficult to define at the discovery stage
what evidence will be relevant at trial. Therefore, the party seeking discovery
is entitled to substantial leeway. (Pacific Tel. & Tel. Co., supra,
2 Cal.3d at p. 172.) Furthermore, California’s liberal approach to permissible
discovery generally has led the courts to resolve any doubt in favor of
permitting discovery. (Id. at p. 173.) In doing so, the courts have
taken the view if an error is made in ruling on a discovery motion, it is
better that it be made in favor of granting discovery of the nondiscoverable
rather than denying discovery of information vital to preparation or
presentation of the party's case or to efficacious settlement of the dispute.”
(Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1761.)
Discussion
Defendant
moves for a protective order precluding her deposition on the grounds that defendant is physically
incapacitated and cannot sit through or give a deposition. Defendant contends
she broke
her hip in August of 2021.
Defendant was provided a letter from her treating doctor, Dr, Terry Ishihara,
that indicated defendant is under his care for an injury she sustained in
August 2021 and that at this time, defendant is unable to sit through a
deposition. (Exh. L.)
Plaintiff
argues in opposition that Plaintiff is willing to accommodate Defendant’s
injury by conducting a remote deposition, allowing Defendant
to stand in her deposition, take as many breaks as she needs, and conducting
the deposition over the course of several days. Plaintiff seeks to depose
Defendant in October. Plaintiff also argues that the letter from Dr. Ishihara
claiming that Defendant is unable to sit through a deposition was written in
February of 2022, and her injury occurred in August of 2021. Thus, it has been
a year since she was injured. Further, Plaintiff argues this letter does not
mention anything about Defendant’s ability to testify truthfully under oath or
her being impaired during a deposition. On its face, it only indicates that
Defendant cannot sit through a deposition which is understandable due to her
injuries to her hip as explained by Counsel in November 2021.
The Court finds that Defendant has not
met her burden to show good cause for the protective order. First, the injury
she has sustained is now a year old. She has not filed a reply to the motion
for a protective order in order to shed light on whether she has recovered to
any extent from her injury she sustained a year ago. Second, Plaintiff is
willing to accommodate Defendant’s condition by conducting
a remote deposition, allowing Defendant to stand in her deposition,
take as many breaks as she needs, and conducting the deposition over the course
of several days. As such, the deposition should be limited in the manner
provided above by Plaintiff.
Conclusion
Accordingly, Defendant’s motion for a protective order is DENIED.
Moving party is directed to give notice.