Case Number: 18STCV03736 Hearing Date: April 08, 2019 Dept: 2

Plaintiff’s Motion to Compel Deposition of Defendant, Charlotte Rosenberg, and Request for Production of Documents, Request for Sanctions, filed on 3/4/19 is GRANTED. Plaintiff has shown good cause for an order compelling Defendant, Charlotte Rosenberg, to appear for deposition and produce documents within ten (10) days as duly noticed by Plaintiff. Cal. Code Civil Procedure § 2025.450(b)(2).

Defense counsel was not informed about Ms. Rosenberg’s probate proceeding until 3/20/19, which is after Plaintiff filed this motion. Declaration of Kevin Place, ¶ 11. According to the order provided by Mr. Place, Ms. Rosenberg will be examined, not as to her testamentary capacity but her capacity to act as Trustee and to retain counsel. Opposition, Ex. 1. The order does not indicate that the Court will determine whether a Guardian ad Litem will be appointed.

There is no evidence that she lacks capacity to testify. Defense counsel observed that the day before Ms. Rosenberg’s 2/7/19 deposition, “she appeared healthy and engaged as I prepared her for deposition.” Declaration of Kevin Place, ¶ 5. While defense counsel claims Ms. Rosenberg is 92 years old and infirm, Defendant has not moved for a protective order. The meet and confer correspondence does not reflect any discussion about Ms. Rosenberg’s need for accommodation based on her age and “infirmity.” Opposition, 3:7-9.

Every person is presumed qualified to be a witness, until a court determines that a witness is not qualified. Evid. Code, § 700, § 701. A witness’s competency to testify is “determined exclusively by the judge.” People v. Montoya (2007) 149 Cal.App.4th 1139, 1150.

The Court imposes sanctions of $2,342.40 against Defendant, Charlotte Rosenberg, and her attorney of record, Kevin Place, for unsuccessfully opposing a motion to compel without substantial justification, which is a misuse of the discovery process. Cal Code Civil Procedure § 2023.010(h). Such sanctions are payable within thirty (30) days.

Moving party is ordered to give notice.