George Ayoub and Svitlana Oksenenko Ayoub
Case No: 18FL01796
Hearing Date: Tue Apr 02, 2019 10:30

Nature of Proceedings: Motion Sanctions (Protective Order)

Motion for a protective order; sanctions

Attorneys: Charles Oxton for Petitioner; Daniella Felix for Respondent

Rulings:

1. Lana’s deposition is set for the morning and the vocational assessment in the afternoon of Monday, May 6, 2019, to begin at 9 am in Mr. Oxton’s office. Although the Court will be on the bench, counsel are invited to call the Court’s secretary’s telephone at 882-4570 who will get me from the bench to rule on any objections that might arise. Since this is the third time her deposition has been set, if Lana does not go forward with this deposition and does not complete the vocational examination, she will not be permitted to testify. The suggestion of written questions is rejected. The Court has selected a date after the date recommended by Lana’s doctor and her attorney. Do not change it again.

2. Sanctions are denied for the reasons set out below.

3. Lana’s request to continue the matter six months is vastly overstated for the reasons set out below and rejected.

4. The current MSC Date of April 12 and the current Trial Date of May 7, are vacated.

5. The new MSC date is May 24; the new Trial Date is June 11. All discovery cut-off dates usually set off the trial date are reset and set off the new trial date.

Analysis

Lana seeks a protective order requiring that the deposition of Lana be taken at a different time other than as currently noticed by George. In the alternative, Lana seeks an order that her testimony be taken by written, instead of oral, examination.

She seeks monetary sanctions of $3,726.95 for reasonable attorney’s fees and costs incurred in bringing this motion. Such sanctions are sought on the ground that there is no substantial justification for his conduct in refusing to accommodate a reasonable delay to allow Lana to fully recover from her injuries prior to deposition in this matter.

This was an eight-year marriage; no children; George filed for dissolution on July 23, 2018; Lana filed a response and request for dissolution on August 27, 2018; Lana resides in Dublin, California; matter is currently set for a trial confirmation conference on May 7, 2019, and a mandatory settlement conference on April 12, 2019; George currently seeks to take Lana’s deposition on March 7, 2019; Lana seeks to have it rescheduled to May 1, 2019; relies upon the fact that there has been an intervening event that occurred on January 19, 2019; Lana was involved in a three-car accident on the freeway; Lana was examined by her neurologist, Dr. Charlene Hu, MD, on February 14, 2019; she determined that Lana still has significant symptoms from her concussion; her recommendation is that Lana avoid mental stress, such as a deposition, until May 1, 2019, to help speed Lana’s recovery and ensure she will be fully fit to give deposition testimony; counsel requests that the Court issue a protective order requiring that the deposition be taken at a different time [recommends May 1] other than as currently noticed by George’s attorney [March 7].

Code of Civil Procedure section 2023.010 is a sensible and workable statute and provides: “Misuses of the discovery process include, but are not limited to, the following:

(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

(b) Using a discovery method in a manner that does not comply with its specified procedures.

(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(d) Failing to respond or to submit to an authorized method of discovery.

(e) Making, without substantial justification, an unmeritorious objection to discovery.

(f) Making an evasive response to discovery.

(g) Disobeying a court order to provide discovery.

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.”

Lana’s lawyer contends that the declarations of Lana and her lawyer establish that George and his lawyer have engaged in the misuse of discovery and persisted in seeking improper, invasive, and/or oppressive discovery, necessitating the filing of this motion; that a protective order should issue requiring that the deposition of Lana be taken at a different time other than as currently noticed.

Response by George filed 3/20

It comprised of 58 pages; the Court has read it; summarize here.

Points out that the deposition was set for January 24, 2019, by mutual agreement; vocational examination was set for same date; they were cancelled by mutual agreement because of the car accident; rescheduled via mutual agreement to March 7, 2019; the first basis for his objection to the current request was that the motion was not filed until March 4, 2019, three days before Lana’s scheduled deposition; the hearing on the requested relief was noticed for April 2, 2019, almost a month after her deposition was to have taken place; second basis for objection is that, even had the relief been timely sought, it would not have been granted because the claimed basis was factually insufficient to merit such relief; matter is currently scheduled for Settlement Conference on April 12, 2019, and for Trial on May 7, 2019; these dates were long ago chosen by Lana and George through their respective Counsel.

Acknowledges that on 2/19/19, Lana’s lawyer first reported the car accident; requested that the deposition and vocational exam be changed again; Lana’s lawyer said if George will not agree to voluntarily withdraw the current notice of deposition and re-notice the deposition for a later date, once it is known when Lana will be fit, he will seek protective order; neurologist recommends that she not participate in any stressful or mentally engaging activities for some time yet, and that she not participate in a deposition at this time as the stress from the event may slow or complicate Lana’s recovery.

George’s lawyer responded promptly on 2/20; he was very skeptical; said they were not prepared to accept at face value what Lana reported; at that point, George and his counsel had no information other than the fact that she was “injured” in the accident; no medical report; nothing from her Doctor; virtually anyone would likely be successful in securing a physician’s concurrence that stress is to be avoided whenever possible; whether Lana’s deposition and/or participation in a vocational assessment would rise to the level of being medically prohibited is yet to be established.

On 2/26 Lana’s counsel responded and reported, in part, that he hoped to avoid the need for a protective order and continuance of the deposition as well as the trial dates currently set; Lana may not be ready for deposition or any real activity for some time, perhaps until May; as soon as he has the rest of the information from her doctor and insurance company he will forward that along.

Case Management Conference on 3/5

This “final” CMC was set last October; Lana made her request for a continuance of the Trial Date in her FLIS because of factors related to the automobile accident; the Court considered it and rejected it.

Lana’s Reply filed 3/26

Points out that Lana has pleaded that she has been injured in a car accident; is suffering from physical symptoms related to the concussion she received, and that to appear for deposition against her doctor’s recommendation and in her current condition is oppressive and unduly burdensome. Lana was in need of protection from the oppression and undue burden of appearing for deposition when physically unfit to do so, and against her doctor’s recommendation, at the time she filed the motion, and is still in need of that protection today; again stresses that in order to fully recover and follow the directions of her medical caregivers, Lana must avoid all stressful activities until May 1, 2019. Again points out that George has engaged in the misuse of discovery and persisted in seeking oppressive discovery, necessitating the filing of Lana’s motion for a protective order, despite Lana’s regular communications with George’s counsel regarding her car accident, her injuries, and her evolving medical condition afterwards.

The Court’s Conclusions

Irrespective of having previously considered and rejected a continuance of the trial date, the Court finds that the deposition and vocational examination should be continued to at least May 1, the date her counsel and physician urged. Counsel shall bring their calendars after having checked with the vocational evaluator and their clients about (1) the date the Court will set for the deposition in the morning and the vocational assessment in the afternoon, AND (2) the dates set for the MSC and Trial.

As for attorney fees, the standard of proof regarding need-based fees is that the Court shall first make findings of whether fees and costs are appropriate; whether there is a disparity in access to funds, and whether one party is able to pay for both parties’ legal representation; that only if the Court makes a finding demonstrating disparity in access and ability to pay should the Court award fees. (Family Code section 2030.) Such fees have not been requested here.

The standard of proof regarding sanction-based fees is that the Court shall first make findings of whether sanctions are appropriate; if so, the Court should then make findings as to what amount of money is reasonable as sanctions. The Court finds that sanctions are not appropriate. George had reason for being skeptical under the circumstances; particularly the time lines addressed above; specifically that the request for a continuance of the trial date was made at the last minute; and that it was previously made and rejected. There was substantially justifiable reason for George’s skepticism and objection to not continue the deposition and necessarily to have to continue the MSC and Trial Dates [that was, of course, implicit in the request].

As for the new trial date, the Court has not ignored Lana’s claim that she needs an additional six months to get ready for trial. But that request ignores the realities of this case. The case was filed in 7/2018; response filed in 8/2018; trial date set after mutual agreement of Lana’s previous counsel on 10/16/2018; present counsel for Lana substituted into the case on 10/24/18, fully aware of the deadlines; Lana’s initial request for support and fees was made in 11/2018; addressed by the Court on 12/18/19; at the subsequent and final CMC on 3/5/19 Lana reported in her FLIS, in preparation for that hearing, that given Lana’s injuries and anticipated recovery time, she anticipates that it will be necessary to continue the trial date “several months at least” in order to allow “the parties” [presumably Lana alone] time to complete their discovery and adequately prepare for trial. The Court considered that request but rejected it and confirmed the Trial Date [5/7] and the MSC Date [4/12]. The request for a protective order clearly should have been brought by an ex parte motion prior to the March 7 deposition date instead of filing a motion and not appearing for the deposition. The Court is left with no option. By setting a new date for her deposition and vocational evaluation the Court recognizes that the trial must necessarily be continued; the Court has elected to continue it to a date certain after the deposition. This was a relatively routine case for such experienced lawyers as I have on the case. It was filed in 7/2018 and answered in 8/2018. It was an eight-year marriage with no children; and the initial trial date [May/2019] was set in 10/2018 with the mutual agreement of counsel.