Case Number: BC720577 Hearing Date: September 09, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

luis say,

Plaintiff,

v.

alan turek, et al.,

Defendants.

Case No.: BC720577

Hearing Date: September 9, 2019

[TENTATIVE] order RE:

Motion FOR PROTECTIVE ORDER

BACKGROUND

Plaintiff Luis Say (“Plaintiff”) filed this action against Defendants Alan Turek and Myra Turkey (collectively, “Defendants”) following a motor vehicle collision. Defendants move for a protective order to preclude Plaintiffs from taking their depositions. Plaintiffs oppose the motion, which is denied.

LEGAL STANDARD

Code of Civil Procedure section 2025.420 provides, “The court, for good cause shown, may make any order that justice requires to protect any . . . deponent . . . from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense . . . .” (Code Civ. Proc., § 2025.420.)

DISCUSSION

Even though they are parties to this action, Defendants seek a protective order precluding their depositions. The Court denies the motion on several independent grounds.

First, Defendants’ motion lacks foundation. Defendants rely on the declaration of their counsel, Jonathan W. Birdt (“Birdt”). Birdt states:

I have spoken with Alan and Myra Turek and am satisfied that he has no recollection of the incident and becomes easily agitated by unfamiliar questioning. I have also spoken with their son who advised me that Alan is being treated for dementia by a neurologist and that his parents Alan and Myra Turek suffer from multiple medical conditions and require full time home health care assistance.

(Declaration of Jonathan W. Birdt, ¶ 7.) Birdt concedes that his knowledge of Defendants’ health is based on hearsay. As such, his testimony about the health of Defendants is inadmissible as lacking foundation. (Evid. Code, § 702.)

Second, the Court denies the motion because the record does not support Defendants’ contentions. If Alan Turek is so incapacitated that he cannot defend this action, Defendants must seek appointment of a guardian ad litem to defend the action on his behalf. (Code Civ. Proc., § 372.) Defendants have failed to do so, calling into question their contention that Alan Turek is too incapacitated to give a deposition.

Finally, Defendants are parties to this action. Plaintiff is entitled to depose them, because their testimony may be relevant. Alan Turek and Myra Turek are percipient witnesses to the accident, and their recollection of the accident may be relevant to the issue whether the accident caused Plaintiff’s injuries. Similarly, Plaintiff is entitled to depose Myra Turek to determine if, for example, she was aware of Alan Turek’s mental state and nonetheless permitted him to drive her vehicle. Plaintiff need not accept Birdt’s representation that Alan has no recollection of the subject accident. Regardless, if Birdt’s representations are correct, the deposition will be relatively short and therefore will not be overly burdensome. Similarly, Defendants provide insufficient basis to prevent Plaintiff from taking the deposition of Myra Turek. Therefore, the motion for a protective order, as well as Defendants’ request for sanctions, is denied.

CONCLUSION AND ORDER

Defendants’ motion for protective order is denied. Defendants shall provide notice and file proof of such with the Court.

DATED: September 9, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court