2012-00134178-CU-FR

Patrick LeMieux vs. Xiansheng Bing Fan Yeyoung

Nature of Proceeding: Motion for Protective Order (Alfred Zeits)

Filed By: Poire, Alfonso L.

Non-party Alfred Zeits’ (“Zeits”) motion for protective order is denied.

Zeits seeks a protective order to preclude his deposition noticed by Defendants
Xiansheng Bing Fan Yeyoung, et al., from taking place. Zeits argues that there is no
justification for his deposition as he is an elderly individual against whom no
involvement or wrongdoing in the subject matter of the action is alleged and he has no
relationship with Defendants.
For good cause shown, a protective order may be issued to protect a deponent from
“unwarranted annoyance, embarrassment, or oppression, or undue burden and
expense.” (CCP § 2025.420(b).) To this end, the moving party must generally show
that the burden of the deposition clearly outweighs the benefits sought to be obtained.
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(Emerson Elec. Co. v. Superior Court (1997) 16 Cal.4 1101, 1110.) Here, Zeits has
failed to make the required showing. A blanket prohibition against the taking of an oral
deposition is a very unusual procedure and a party or person who seeks a protective
order prohibiting such a deposition bears a heavy burden of demonstrating good
cause for such an order. See, e.g. 8 Wright & Miller, Federal Practice and Procedure,
§ 2037 (1986 Sup.)

In the instant action, Plaintiffs allege that Defendant YeYoung is a teacher of Chinese
culture and arts and established the YeYoung Culture Studies. Plaintiff Patrick
LeMieux alleges that he invested money with Defendants based on YeYoung’s
representations regarding teapots and ceramics that Defendants sold. LeMieux
pleads fraud based causes of action and alleges he invested approximately $30,000
based on representations that the teapots and ceramics had a value near $50,000 and
which were recently assessed at close to $32,000. Defendants cross-complained
against LeMieux alleging that he was YeYoung’s student but became upset at him
when YeYoung suggested that he make changes in his personal life and ceased
studying with YeYoung. Defendants allege that LeMieux then began to have business
struggles based upon the vices that YeYoung suggested he give up and that LeMieux
began making false claims and threats against Defendants.

Zeits’ arguments that the deposition subpoena, which is for no more than a one half
day deposition and contains seven document requests, would cause him to suffer
“unwarranted annoyance, embarrassment, or oppression, or undue burden and
expense” are rejected. Indeed, Defendants seek to depose Zeits and have him
produce documents based on their belief that Zeits has information and documents
relevant to their cross-complaint and information relevant to Plaintiff Patrick LeMieux’s
credibility. Zeits had a business relationship with LeMieux as he gave LeMieux a loan
and Defendants believe that the facts surrounding the loan could lead to information
supporting the allegations in the cross-complaint regarding LeMieux’s business
struggles which they allege was the motivating factor in LeMieux’s lawsuit against
them. In addition, Zeits may have information relevant to LeMieux’s credibility given
LeMieux’s deposition testimony that he received loans from his insurance clients but
denied using loan proceeds to pay off other loans from other clients, which Defendants
contend was not truthful. There is nothing improper about the subject deposition
subpoena. Zeits fails to substantiate his arguments with any factual showing
whatsoever. His counsel (also Plaintiff LeMieux’s counsel) simply states that the
subpoena has no “subject matter relevance to the claims set forth in either the
underlying Complaint, or the Cross-Complaint on file herein, and are not sought for the
purpose of leading Defendants to admissible or relevant evidence.” (Poire Decl. ¶ 2.)
This mere conclusion unsupported by facts falls far short of demonstrating that the
burden of the deposition clearly outweighs the benefits sought to be obtained. (
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Emerson Elec. Co., supra, 16 Cal.4 1101, 1109.) The motion was required to be
supported by a declaration that “state[s] facts (rather than mere conclusions) showing
grounds for relief. I.e., it is not enough simply to repeat the statutory grounds.” (Weil
& Brown, Cal. Practice Guide: Civil Proc. Before Trial (TRG 2013) at ¶ 8:690.) It was
not.

Zeits’ arguments that his deposition is not needed because Plaintiff LeMieux has already admitted and testified to all facts that Defendants seek to uncover at the
deposition is rejected. Defendants are not required to take the word of the opposing
party at face value.

Further, while Zeits’ counsel declares that the document requests with the subpoena
“reflect categories of documents involving privileged, personal financial transactions”
between Zeits and LeMieux, there are no declarations from either Zeits or LeMieux to
that effect. Nor has Zeits made any attempt to specifically discuss the requests and
how they are improper. In any event, Defendants’ counsel has made clear that they
are willing to enter a protective order to protect any such confidentiality that may exist.
The parties are free to enter such an order, but given Zeits’ complete lack of showing
that the requests call for protected information, the Court will issue no order in that
regard.

The Court notes Defendants’ belief that Zeits’ failure to comply with the subpoena may
be the result of witness tampering given that Zeits and Plaintiff LeMieux are
represented by the same counsel. However, given Defendants’ concession that
Defendants are unable to substantiate such belief at this time, the Court takes no
position on this point.

In sum, Zeits made no showing that the deposition subpoena and the accompanying
document requests are improper in any way and the motion for protective order is
denied in its entirety. Zeits’ request for sanctions is denied as his motion was denied.
Zeits shall appear for his deposition and produce all unprivileged documents
responsive to the subpoena. The parties shall meet and confer as to the date and time
of the deposition.

In addition, the Court denies non-party Earla Meekins’ identical motion for protective
order for the same reasons discussed above. Meekins’ request for sanctions is denied
as her motion was denied. Meekins shall appear for her deposition and produce all
unprivileged documents responsive to the subpoena. The parties shall meet and
confer as to the date and time of the deposition.

While Defendants appear to request sanctions in their opposition, their counsel’s
declaration did not set forth his hourly rate or the time spent opposing the motion.
Thus, even if the Court were considering awarding sanctions against Zeit, the Court
has no factual basis for determining a reasonable amount.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by CRC Rule 3.1308 and Local Rule 1.06(D). Defendant’s counsel is ordered
to notify Plaintiff’s counsel immediately of the tentative ruling system and to be
available at the hearing, in person, or by telephone, in the event Plaintiff’s counsel
appears without following the procedures set forth in Local Rule 1.06(B).

This minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.