Notice of Motion and Motion for Protective Order
1
2
3
4
5
6
Richard Anderson, ESQ., SBN 555AO456
THE LAW OFFICES OF RICHARD ANDERSON
999 The Heights, 35th Floor
Vista Del Mar, CA 95555
Tel: (555) 555-5555
Fax: (555) 555-5558
Email: EandersonLaw@earthyahoo.comnet
Attorney for Defendant
Ruth Martin, individually and as
Trustee for the Ruth Martin Family Trust
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SEASIDE
10
11
12
13
14
15
16
17
18
ANDREA SMART and DMITRY
PETERS
Plaintiffs,
)
)
)
)
v.
)
)
)
RUTH MARTIN ET AL.
)
et al.,
)
)
Defendants.
)
)
)
)
_______________________________)
Case No. 2004-18888
NOTICE OF MOTION AND
MOTION FOR PROTECTIVE ORDER
RESTRICTING DISCOVERY; SUPPORTING
DECLARATION OF RICHARD ANDERSON;
MEMORANDUM OF POINTS AND
AUTHORITIES
(Restricting Extent or Use
of Discovery Method)
UNLIMITED CIVIL CASE
Date: April ____, 2004
Time: 9:30 a.m.
Dept. 42
19
20
21
NOTICE IS HEREBY GIVEN that on April ____, 2004, at Department 42 of the Seaside
22
Superior Court, located at 14 Court Street, Seaside, California, at at 9:30 a.m., or as soon
23
24
25
thereafter as the matter may be heard, defendant Ruth Martin will, and hereby does, move for a
protective order restricting the use of discovery methods, specifically, that her deposition
noticed for April 2, 2004 not be taken at all or by written questions only after her doctor
permits her to be deposed. Defendant will also move for the imposition of a monetary
____________________________________
Smart v. Martin
Motion for Protective Order
1
Notice of Motion and Motion for Protective Order
1
sanction against plaintiff’s counsel Miller Simons, Esq, The motion for protective order will be
2
made on the ground that the selected method of discovery is unduly burdensome and
3
threatening to defendant’s health, taking into account the needs of the case, the amount in
4
controversy, and the importance of the issues at stake in the litigation.
5
6
The motion will be based on this notice of motion, on the declaration of Richard Anderson and
the memorandum of points and authorities served and filed herewith, on the papers and records
7
on file herein, and on such oral and documentary evidence as may be presented at the hearing
8
of the motion.
9
10
March 17, 2004
11
12
____________________________
Richard Anderson, Esq.
Attorney for Defendant
Ruth Martin, Individually and as Trustee
for the Ruth Martin Family Trust
13
14
SUPPORTING DECLARATION OF RICHARD ANDERSON
15
I, Richard Anderson, declare that:
16
1.
I am an attorney at law licensed to practice in all of the Courts of the state of California and I
17
18
19
am the attorney of record for Ruth Martin and the Martin Family Trust herein, and have personal
knowledge of each of the facts set forth in this Declaration, and can testify competently thereto,
20
except as to the matters stated on information and belief, and as such matters, I believe them to be
21
true.
22
2.
23
purport to be.
24
3.
25
frail health and the advanced age of 92 and it is her doctor’s opinion that she cannot withstand
The exhibits attached to this declaration are true and correct copies of the documents they
Good cause exists for the protective order sought by defendant Ruth Martin is of extremely
____________________________________
Smart v. Martin
Motion for Protective Order
2
Notice of Motion and Motion for Protective Order
1
an oral deposition, and that when her health stabilizes she could be permitted to undergo a
2
deposition on written questions. Exhibit A is a letter from her physician Yee Hong, M.D, to
3
that effect.
4
5
6
4.
On March 12, 2004 plaintiffs served a notice of deposition on defendant Ruth Martin for
April 2, 2004. (Exhibit D.) I telephoned plaintiffs’ counsel that same day to explain the
situation and request that the deposition be postponed and taken on written questions. I advised
7
him that I would need to seek a protective order and sanctions if he declined. He declined.
8
9
10
5.
On March 14, 2004 I faxed plaintiffs’ counsel a letter making the same request. A copy of
my letter is attached as exhibit B. I offered to obtain a doctor’s letter.
On March 15, 2004, plaintiffs’ counsel telephoned me to say that the deposition would go
11
6.
12
forward as noticed, and that he would not discuss the matter further. Exhibit C is my letter to
13
plaintiffs’ counsel confirming that discussion.
14
7.
15
defendants will have incurred $1500 in attorneys fees (4 hours paralegal time at $150 an hour,
16
and 3 hours of attorney time at $300 an hour), a $23 filing fee, and $47 for messenger fees for
17
18
By the time a reply is prepared and served, and the hearing of this matter is completed,
this motion.
The foregoing is true and correct of my own knowledge under penalty of perjury. This
19
declaration is executed in Seaside on March 17, 2004.
20
21
_____________________________
22
23
24
25
Richard Anderson
///
///
///
____________________________________
Smart v. Martin
Motion for Protective Order
3
Notice of Motion and Motion for Protective Order
1
MEMORANDUM OF POINTS AND AUTHORITIES
2
Introduction
3
4
5
6
Plaintiffs allege that defendant defrauded them when she failed to disclose conditions in
a single family home sold to them in 1999, allegedly discovered in 2002. As their second
amended complaint reveals, defendant inherited the home from a previously unknown relative,
had never been in it, and owned it for less than 3 months at the time of sale. Defendant is 92,
7
and in frail health. Exhibit A to the Declaration of Richard Anderson Supporting Motion for
8
9
10
Protective Order Restricting Discovery [“Anderson declaration”] is a copy of the letter from
her physician.
On March 12, 2004 plaintiffs served a notice of deposition on defendant for her
11
12
deposition April 2, 2004. (Exhibit D.) Defense counsel telephoned plaintiffs’ counsel that
13
same day to explain the situation and request that the deposition be postponed and taken on
14
written questions. Defense counsel advised him that if he declined, a protective order and
15
sanctions would be sought. He declined.
16
On March 14, 2004 defense counsel faxed plaintiffs’ counsel a letter making the same
17
request. (Exhibit B.) On March 15, 2004, plaintiffs’ counsel telephoned defense counsel to say
18
19
that the deposition would go forward as noticed, and that he would not discuss the matter
further. Exhibit C is a letter to plaintiffs’ counsel confirming that discussion.
20
21
22
I.
THE COURT HAS AUTHORITY TO RESTRICT THE EXTENT OF
DISCOVERY ON MOTION FOR PROTECTIVE ORDER
23
24
25
CCP § 2019 (b) states in pertinent part:
“The court shall restrict the frequency or extent of use of these discovery methods if it
determined either the following:
____________________________________
Smart v. Martin
Motion for Protective Order
4
Notice of Motion and Motion for Protective Order
1
(1) The Discovery sought is unreasonable cumulative or duplicative, or is obtainable from
some other source that is more convenient, less burdensome, or less expensive.
2
3
4
(2) The selected method of discovery is unduly burdensome or expensive, taking into
account the needs to the case, the amount in controversy, and the importance of the issues
at stake in the litigation.
5
6
8
The court may make these determinations pursuant to a motion for protective order by a
party or other affected person. This motion shall be accompanied by a declaration
stating facts showing a good faith attempt to an informal resolution of each issue
prepared by the motion.
9
In this action, defendant Martin’s health and age preclude her oral deposition. Taking
10
the depositon would threaten her fragile condition. On the other hand, a less stressful discovery
11
alternative, depositon on written questions, is available. Givne that Ms. Martin has fleeting
12
personal knowledge of the property, a depositon on written questions is likely to provide
7
13
14
adequate information and testimony. If not, plaintiffs would be free to petition this court for
relief from a protective order.
15
II.
16
17
18
19
20
THE COURT HAS AUTHORITY TO IMPOSE SANCTIONS FOR
PLAINTIFFS’ COUNSEL’S REFUSAL TO STIPULATE TO A CONTINUANCE
OF THE DEPOSITION AND TO DEPOSITION ON WRITTEN QUESTIONS
CCP § 2019 (b) states in pertinent part:
The court may impose a monetary sanction under section 2023 against any party,
person, or attorney who unsuccessfully makes or opposes a motion for a protective
order, unless it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the sanction unjust.
21
22
Defendant’s counsel made four attempts to seek a stipulation for a continuance of
23
defendant’s deposition and for deposition on written questions. However, plaintiffs’ counsel
24
continued to refuse to compromise causing defendant to incur attorney’s fees in seeking this
25
____________________________________
Smart v. Martin
Motion for Protective Order
5
Notice of Motion and Motion for Protective Order
1
motion and drafting many letters trying to seek the continuance. Defendant will have incurred
2
$1500 in attorneys’ fees and $70 in costs in making this motion.
3
Respectfully submitted,
4
5
March 17, 2004
6
7
____________________________
Richard Anderson, Esq.
Attorney for Defendant
Ruth Martin, Individually and as Trustee
for the Ruth Martin Family Trust
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
____________________________________
Smart v. Martin
Motion for Protective Order
6