Case Name: Murray Walker, et al. v. Kevin Masaru Cowels, et al.

Case No.: 17CV305017

Motion for Protective Order Re: Deposition of Defendant, Kevin Masaru Cowels

Discovery Dispute

On January 11, 2017, plaintiffs Murray Walker, Allison Gong, Alexander Johnson, and Carol Walker (collectively, “Plaintiffs”) filed a complaint against defendants Kevin Masaru Cowels, Robert J. Cowels Jr., and Ann Hirata Cowels (collectively, “Defendants”) arising from a motor vehicle accident which occurred on May 21, 2016.

On or about October 16, 2018, Plaintiffs served Defendants with a Notice of Taking Deposition for defendant Kevin Masaru Cowels to occur on October 29, 2018.

Defendants offered to stipulate to liability, but Plaintiffs’ counsel refused to take the deposition off calendar.

On October 16, 2018, Defendants’ counsel sent a meet and confer letter to Plaintiffs’ counsel. Plaintiffs’ counsel would not agree to withdraw the notice of deposition.

On October 24, 2018, Defendants sought and obtained an ex-parte order shortening time to file and serve the instant motion for protective order.

II. Defendants’ motion for protective order re: deposition of defendant, Kevin Masaru Cowels is GRANTED subject to Defendants providing evidence for in camera inspection.

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., §2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization 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.” (Code Civ. Proc., § 2025.420, subd. (b).)

Defendants seek a protective order directing the deposition of defendant Kevin Masaru Cowels not be taken at all. According to Defendants’ counsel, defendant Kevin Masaru Cowels suffers from mental health issues that will be exacerbated by his continuing involvement in this matter. Defendants’ counsel declares she can submit, for in camera inspection, two signed doctors’ notes and a declaration by defendant Ann Cowels that her son, defendant Kevin Masaru Cowels, has been institutionalized at least two times since the inception of this lawsuit and that his mental health status has continued to worsen such that the stress of a deposition would trigger worsening mental health symptoms and endanger his personal safety and mental well-being.

Defendants contend the deposition of Kevin Masaru Cowels is unnecessary as liability is not contested. Defendants’ counsel declares she forwarded a stipulation regarding liability to Plaintiff’s counsel, but Plaintiffs’ counsel nonetheless declined to take defendant Kevin Masaru Cowels’s deposition off calendar asserting the need for additional facts about the accident, such as the speed of Mr. Cowels’s vehicle. Defendant Kevin Masaru Cowels previously provided his recollection of the accident, including speed, in his answer to form interrogatories.

In opposition, Plaintiffs are skeptical of defendant Kevin Masaru Cowels’s purported mental health issues. On August 30, 2018, Plaintiffs deposed defendant Ann Cowels, defendant Kevin Masaru Cowels’s mother, who testified that defendant Kevin Masaru Cowels has never been diagnosed with schizophrenia and that no medical professional recommended a psychological or psychiatric evaluation as a result of this accident. Defendant Kevin Masaru Cowels told police following the accident that he was schizophrenic and having an episode. Defendant Ann Cowels further testified that defendant Kevin Masaru Cowels, after having his driver’s license suspended, had his driver’s license reinstated after taking a driver’s test. Defendant Kevin Masaru Cowels has not actually submitted any evidence of defendant Kevin Masaru Cowels’s mental health issues. Plaintiffs contend a deposition remains necessary because although Defendants are willing to stipulate to liability, Defendants intend to contest damages and/or the causal relation of Plaintiffs’ claimed damages to the accident and reserved the right to present evidence at trial regarding the facts and circumstances of how the accident occurred. In the event the court grants Defendants’ motion, Plaintiffs request Defendants be prohibited from introducing any evidence at trial regarding the circumstances of the crash.

Defendants shall appear at the hearing and submit, for in camera inspection, the two signed doctors’ notes and the declaration of Ann Cowels referenced above. To the extent the evidence supports the assertion that defendant Kevin Masaru Cowels has mental health issues which would be exacerbated by a deposition, the court intends to grant Defendants’ motion for protective order re: deposition of defendant, Kevin Masaru Cowels. Defendants will be prohibited, however, from introducing any testimony by defendant Kevin Masaru Cowels at trial.