Case Name: Goggins, et al. v. Kumra, et al.

 

Case No.: 1-13-PR-171856

 

Respondent Harinder Rani Kumra requests a protective order prohibiting the taking of her deposition on the grounds that unwarranted annoyance, embarrassment, or oppression, or undue burden and expense will occur.  The notice of motion requests no other relief.  Petitioner Keila Goggins, guardian ad litem for her minor children, Kyaa Renee Goggins and Kennedy Riene Goggins, opposes.

 

Petitioner filed proceedings to establish that her children are intestate heirs of Decedent Raveesh Kumar Kumra.  By this action against Respondent, Petitioner seeks to recover Decedent’s property allegedly transferred fraudulently by Respondent in a divorce proceeding between Decedent and Respondent.

 

EVIDENCE

 

Petitioner seeks judicial notice of a Reply to Opposition to Motion to Quash Service of Summons on Iron Duke Management, LLC, filed on January 29, 2008, in Stephen Kaffee, et al. v. Harinder Kumra, et al., Santa Clara County Superior Court Case No. 1-07-CV-101005. The records of any California Court may be judicially noticed.  (Evid. Code, § 452(d).)  The court takes judicial notice of the Reply.

 

Petitioner’s objections to the Declaration of Cathy E. Nelson are sustained.  Petitioner’s objections to the Declaration of Harinder Rani Kumra (Rani Decl.) are sustained as to Objections 1-13 and Objection 15 to the fourth and seventh sentences of paragraph 16 and Exhibit 4, and are otherwise overruled.  The entirety of the authenticating testimony for Exhibit 4 is:  “A true and correct copy of the doctor’s note is attached hereto and incorporated herein by this reference as Exhibit 4.”  Exhibit 4 appears to be an unsworn statement of a clinical psychologist and recites that “This report is being generated at the request of Patient and Attorney for Patient.”  In any event, even if it were admissible, the note does not corroborate Respondent’s assertion that “My doctor has ordered me to be excused from any deposition.” (Rani Decl. at 6:18-19.)  Exhibit 4 contains the language that “I strongly recommend that she [Respondent] should therefore be excused from being compelled to attend her deposition, if at all possible, giving her the ability to fully recover. (Rani Decl. Ex. 4.)

 

On July 24, 2014, Respondent filed an untimely reply, thereby significantly shortening the time of Petitioners and the court to prepare.  The reply provides no explanation for its untimeliness.  The court has discretion whether to consider an untimely filing.  (Rule of Court 3.1300(d).)   Moreover, the reply attempts to bring forward new evidence: a Declaration of Brenda K. Wade and a Request for Judicial Notice.  Particularly as to the former, there is no basis provided as to why this evidence was not included in the moving papers, as required.  (Jay v. Mahaffey (2013) 218 Cal.App.4^th 1522, 1537-38 (no abuse of discretion to exclude reply declarations).)  Petitioner is thereby deprived of an opportunity to submit written objections, evidence and argument in response to such evidence.  Although the court thus has ample basis to exercise its discretion not to consider the reply and in particular the Wade Declaration, for the reasons stated below the court will consider this information.

 

BACKGROUND, ARGUMENTS AND ANALYSIS

 

Respondent divorced Decedent in 2010.  On November 30, 2012, Respondent and Decedent were living at Respondent’s home when four people invaded her home and beat her and Decedent.  (Ibid. ¶ 13.)  Decedent died that night.  (Ibid.)  Respondent states that she has not been able to return to her home, and since the home invasion she suffers from “post-traumatic distress” and her mental and physical health have declined.  (Ibid. ¶ 16.)

 

Respondent argues that no relevant information will be brought about by the deposition in the four main concerns of the lawsuit: (1) Respondent contends that this was not a sham divorce because Respondent had many grounds for wanting a divorce and that during the divorce proceedings, a former business associate unsuccessfully challenged the divorce proceedings as a sham and the judge in the divorce proceedings was not convinced; (2) Respondent asserts that she will be unable to answer questions about the valuation of the community assets because any personal knowledge and documents have been disclosed and she cannot provide any independent information about the valuation of the assets; (3) Respondent argues that there was no fraudulent conveyance because no creditor has been defrauded and that Petitioner has no standing to maintain the lawsuit because the law requires creditors, not individuals, to sue; and (4) Respondent contends that she has no information and would be unable to answer questions regarding the sufficiency of assets available in Decedent’s estate to satisfy the valid claims of creditors and that the personal representative would be able to provide such information. Respondent also contends that there can be no doubt that Petitioner is maintaining this action in an effort to intimidate and harass Respondent into paying Petitioner a large settlement sum. Respondent asserts that because the burden on Respondent’s health outweighs the likelihood that the information sought will lead to the discovery of admissible evidence, the protective order should be granted.

 

Petitioner concedes that the deposition will not include any questions “concerning the circumstances and events surrounding Decedent’s death.”  (Declaration of Michael Crosby, at 3:8-9.)  Petitioner argues that she has a right to deposition discovery; that written discovery is not a substitute for an oral deposition; and that in this case, the responses to written discovery and documents produced are inadequate because they are mostly objections without substantive answers.  Petitioner states that a motion to compel further responses will be filed if meet and confer efforts are fruitless.

 

“The court, for good cause shown, may make any order that justice requires to protect any party […] from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: (1) That the deposition not be taken at all […] (5) That the deposition be taken only on certain specified terms and conditions.”  (Cal. Code Civ. Proc., § 2025.420(b)(1).)  Generally, this requires a showing that the burdens involved in the deposition proceeding clearly outweigh whatever benefits are sought to obtained thereby.  (Cal. Code Civ. Proc., § 2017.020(a); Emerson Elec. Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.)

 

Respondent cites no cases which preclude altogether the deposition of an individual party where there is a foundational showing of personal knowledge.  It is “very unusual for a court to prohibit the taking of a deposition altogether, and absent extraordinary circumstances, such an order would likely be in error.” (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1288 (precluding deposition of corporate president who had no knowledge of relevant facts).)  Respondent provides no authority that justifies precluding Petitioner from testing, as is allowed with all deponents, Respondent’s claim to lack of knowledge.

 

“Because of the similarity of California and federal discovery laws, federal decisions have historically been considered persuasive absent contrary California decisions.” (Ibid.)  “A party seeking to prevent or delay a deposition on medical grounds must make a specific and documented factual showing that the deposition will be dangerous to the deponent’s health.”  (Campos v. Webb County Tex. (S.D.Tex. 2012) 288 F.R.D. 134, 136.)  “Where a party is seeking to prohibit his or her own deposition, courts have refused to issue a blanket prohibition of the deposition, and instead have imposed safeguards and conditions on said deposition.” (Ibid. at  138.)  In Schorr v. Briarwood Estates Ltd. Partnership (N.D. Ohio 2011) 178 F.R.D. 488, a plaintiff diagnosed with post traumatic stress disorder requested that her deposition be taken in writing rather than orally and, in the alternative, that the deposition be limited in scope.  The questioning at the deposition was to include the circumstances of the event which gave rise to the PTSD: that is, a rape.  In support of her request, plaintiff provided the sworn testimony of her treating psychologist, opining that plaintiff’s mental health was extremely fragile and that if an oral deposition were necessary it should be limited in time and scope.  Even with this showing, the court did not preclude the deposition, but ordered that it proceed but under certain conditions. Unlike the plaintiff in Schorr, Respondent does not face questioning about the traumatic events allegedly causing her current mental state.  Although Respondent failed to timely provide “a specific and documented factual showing” with evidence of a diagnosis or admissible expert opinion as to her current mental state, even if the court considers the untimely and improperly filed reply declaration, the record does not warrant a complete preclusion of the deposition.

 

There is no good cause shown to preclude the deposition.  The motion for a Protective Order is DENIED.