Case Number: BC676353 Hearing Date: November 21, 2018 Dept: 3

WYATT DOBLER,

Plaintiff(s),

vs.

FRANK ROBERT MASTRONUZZI, et al.,

Defendant(s).

Case No.: BC676353

[TENTATIVE] ORDER DENYING MOTION FOR PROTECTIVE ORDER

Dept. 3

1:30 p.m.

November 21, 2018

Plaintiff seeks a protective order requiring Defendant to withdraw all discovery propounded on Plaintiff. The motion is made on the ground that Plaintiff’s attorney has tried diligently to locate his client, but Plaintiff cannot be located. Notably, Plaintiff’s attorney recently filed a motion to be relieved as counsel, also on the ground that he cannot locate his client.

Plaintiff argues Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1583 supports the relief sought. The Court disagrees, for two reasons.

First, the discovery at issue in Brigante consisted solely of RFAs, in contrast with the interrogatories and RPDs that have been served on Plaintiff in this case. The Brigante Court discussed at length the crippling effect of having RFAs deemed admitted in a lawsuit.

Second, and more importantly, the missing party in Brigante was the defendant. The defendant’s insurance company had hired an attorney and the insurance company was appearing on the defendant’s behalf. The attorney responded to the RFAs, but was unable to sign the verification. The trial court deemed the RFAs admitted, and the court of appeals reversed, holding the remedy was too extreme and recommending the trial court fashion some other remedy, including but not limited to a protective order.

In this case, it is the plaintiff, not the defendant, who is missing. The Brigante Court focused on the fact that the defendant had been served by publication and did not even know about the lawsuit. That is not the case here. Plaintiff chose to file this lawsuit. Plaintiff has an obligation to communicate with his attorney and prosecute the lawsuit that he himself decided to commence. Notably, it is not clear how Defendant would be expected to defend the case if he were required to withdraw all discovery propounded and, presumably, not propound any additional discovery unless and until Plaintiff chooses to re-appear in the case (if he ever does).

In the absence of on point authority in support of the relief requested, the motion for a protective order is denied.

Plaintiff is ordered to give notice.