Case Number: BC718521 Hearing Date: January 15, 2019 Dept: 4A

Motion for Protective Order

The court considered the moving and opposition papers.

On August 20, 2018, plaintiff Kenisha Faniel (“plaintiff”) filed a complaint against defendants Alan Bobier (“defendant”), U-Haul Co. of California, and U-Haul International, Inc. for motor vehicle and general negligence based on an accident that occurred on August 25, 2016.

Trial is set for February 20, 2020.

Defendant moves the court for a protective order to have his deposition conducted at his residence in Fullerton, CA.

Protective orders may be granted on motion of the deponent or any party, or any third person who could be affected by the disclosure (e.g., a nonparty whose privacy would be impaired). (CCP § 2025.420(a).) The motion must be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve the matter outside of court. (CCP § 2025.420(a).)

The burden is on the moving party to establish “good cause” for whatever relief is requested. Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in the discovery procedure clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.)

The protective order may include a direction that a deposition be taken at a place other than that specified in the deposition notice, if it is within he distance permitted by CCP §§ 2025.250 and 2025.260. CCP § 2025.250 permits the deposition to be taken at a place either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence.

The court finds that defendant has established good cause for the deposition to take place at defendant’s residence. Defendant has provided his declaration stating that he is 85 years old, has leukemia and chronic obstructive pulmonary disease, is undergoing chemotherapy every 3 months, and is assisted by an over-sized walk that has oxygen tanks to assist his daily living and difficulty breathing. (Bobier Decl., ¶ 2.) Defendant states that his doctor has ordered that emergency oxygen must be readily available to him and that he lives in an assisted living. (Ibid.) He states that it is extremely difficult for him to travel long distances and that his primary care physician is located only 8 miles from his residence. (Bobier Decl., ¶¶ 4-5.) Defendant would have to travel 40 miles one way to get to plaintiff’s counsel’s Beverly Hills office, which is the location the deposition is noticed for. (Bobier Decl., ¶ 7.) Further, both defendant and defendant’s counsel state in their declarations that they have been unable to obtain a doctor note or medical records due to difficulties in getting in contact with plaintiff’s primary care physician and delays in Kaiser producing records due to HIPAA concerns. (Brady Decl., ¶ 5; Bobier Decl., ¶ 6.) In light of defendant’s medical concerns, the court finds that the burden on defendant to travel to the location specified on the notice of deposition establishes good cause because plaintiff can still obtain the discovery and take defendant’s deposition.

Additionally, defendant’s residence is within the distance permitted by CCP §§ 2025.250 as it is clearly within 75 miles of deponent’s residence.

The motion is therefore GRANTED.

The court “shall” impose monetary sanctions against whichever party loses on the motion for protective order unless it finds that party acted “with substantial justification” or other circumstances render sanctions “unjust.” (CCP § 2025.420(h).)

Defendant’s notice of motion properly notices the request for sanctions against plaintiff and plaintiff’s counsel as required by CCP § 2023.040.

Defendant requests sanctions against plaintiff and plaintiff’s attorney of record in the amount of $1,540.00 for the motion. The court finds that sanctions are warranted pursuant to CCP §§ 2025.420(h). Defense counsel made several reasonable attempts to resolve this issue before having to file a motion for protective order. Defendant even offered to take plaintiff’s deposition at plaintiff’s counsel’s Beverly Hills office. In opposition, plaintiff’s counsel argues that it made a reasonable offer to take defendant’s deposition at his residence if he is compensated for travel to and from the residence at a rate of $250 per hour. There is no basis for a finding that plaintiff acted with substantial justification, and it would not be unjust to award sanctions. Defendant was reasonable in attempting to reach an agreement regarding the location of the deposition, and plaintiff was unreasonable in requesting compensation for travel time, especially in the amount sought. The court finds that $1,262.50 ($185/hr. x 6.5 hrs., plus $60 in filing fees) is a reasonable amount to be imposed against plaintiff and plaintiff’s attorney of record.

Defendant is ordered to give notice of this ruling.