Case Number: BC647479 Hearing Date: January 16, 2018 Dept: 93

MOVING PARTY: Defendant Carol Lea Valle

RESPONDING PARTY: Plaintiff Magaly Arias

Motion for Protective Order that the Oral Deposition of Defendant Not Be Taken

The court considered the moving and opposition papers.

BACKGROUND

On January 19, 2017, plaintiff Magaly Arias filed a complaint against defendant Carol Lea Valle for motor vehicle negligence based on an incident that occurred on September 10, 2015.

Trial is set for July 19, 2018.

LEGAL STANDARD

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). A formal noticed motion and hearing are always required. A

protective order cannot be granted ex parte. St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal. App. 3d 82, 85-86. 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. Such a showing is not necessary, however, where the moving party is “presumptively entitled to a protective order” – i.e., where a defendant is asked questions regarding his or her net worth in an action for punitive damages. Weil & Brown, Civil Procedure Before Trial, at 8:691.

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(d). Section 2025.420(d) applies “to any person,” whether a party or not, who moves unsuccessfully for a protective order. Thus, a nonparty who is denied a protective order is subject to sanctions. Brun v. Bailey (1994) 27 Cal. App. 4th 641, 658-659.

DISCUSSION

Defendant Carol Lea Valle requests a protective order that her deposition not be taken because of her medical condition.

Plaintiff noticed defendant’s deposition for October 24, 2017. On September 15, 2017, defense counsel informed plaintiff’s counsel of defendant’s medical condition, providing a letter from her doctor. On October 12, 2017, defense counsel again informed plaintiff’s counsel of

defendant’s medical condition, proposing that plaintiff propound additional discovery or take defendant’s deposition by written questions.

Defendant asserts that she has advanced heart disease and advanced breast cancer. She contends that her doctor has advised her not to be deposed because the stress of the process would be potentially catastrophic. See Lori D. Levin-Borcover Decl., at Exh. A (Emily Crandall, M.D. letter).

In opposition, plaintiff contends that because defense counsel has refused to stipulate as to the issue of liability, it is necessary to take defendant’s deposition to ascertain her position with respect to the incident and to prepare for cross-examination during the trial. The effect of the requested protective order is that plaintiff will be deprived of all adequate means to conduct discovery as to defendant’s contentions in this case.

The motion is DENIED WITHOUT PREJUDICE as to a protective order that defendant’s deposition not be taken, but the court will consider imposing reasonable accommodations, to be discussed at the hearing.

Plaintiff’s request for sanctions is denied.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: January 16, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court