2012-00120411-CU-MC

Frances Ryan vs. Phillip B. Ryder

Nature of Proceeding: Motion to Compel Attendance at Deposition

Filed By: Poppen, Joseph J.

Defendants’ Motion to Compel Plaintiff Frances Ryan’s Attendance at Deposition is
GRANTED.

Plaintiff’s Second Amended Complaint alleges causes of action for: Financial Abuse of
an Elderly Adult, Conspiracy to Commit Financial Abuse of an Elderly Adult, Breach of
Fiduciary Duty, Constructive Fraud, Fraud, Negligent Misrepresentation, Unfair
Business Practices and Negligence against defendants in connection with a residential
mortgage loan to plaintiff.

On April 30, 2012, plaintiff’s daughter applied ex parte to be appointed guardian ad
litem for her mother. Plaintiff declared that she consented to that appointment, and the
Court granted the application on that basis. No evidentiary finding of incompetency
was made by the Court under Evid. Code, sec. 701. On August 28, 2013, defendants noticed plaintiff’s deposition for Sept. 26, 2013.
Plaintiff’s counsel did not make a motion for a protective order, or to quash, but
advised defense counsel that plaintiff would not be appearing at her deposition
because of her age (91 years old). Counsel asserted that plaintiff was incompetent to
testify and offered her guardian ad litem in plaintiff’s stead.

Although moving parties met and conferred, representing that they would take any
reasonable steps to ensure plaintiff’s comfort during her deposition, they asserted her
testimony is essential in this action, and there is no basis for her to claim any
exemption.

Plaintiff’s opposition attaches letters from physicians, none of which are made under
oath. The medical conditions listed are common among the elderly. The use of a
wheelchair and assistance in using the restroom do not preclude the plaintiff from
testifying.

The opinion testimony of the plaintiff’s counsel and plaintiff’s guardian ad litem are not
expert opinions as to plaintiff’s competence to testify, but lay opinions. No admissible
evidence has been submitted that plaintiff is not capable of expressing herself or of
understanding her duty to tell the truth.

Plaintiff’s opposition does not contend that plaintiff lacks the capacity to communicate
or to understand the duty to tell the truth. Evid. Code, sec. 701; People v. Tatum
(2003) 108 Cal. App. 4th 288, 298.

As the Court accepted her assent to the appointment of a guardian ad litem, it cannot
on the record before it, determine that she is unable to appear and testify at her
deposition.

Plaintiff shall appear and testify under oath at her deposition to be scheduled for a
mutually agreeable date, not later than Friday, Dec. 13, 2013.

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