Richard Anderson, ESQ., SBN 555AO456

Notice of Motion and Motion for Protective Order

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: et

Attorney for Defendant

Ruth Martin, individually and as

Trustee for the Ruth Martin Family Trust

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SEASIDE

ANDREA SMART and DMITRY)Case No. 2004-18888

PETERS)

Plaintiffs,)NOTICE OF MOTION AND

)MOTION FOR PROTECTIVE ORDER

v.)RESTRICTING DISCOVERY; SUPPORTING

)DECLARATION OF RICHARD ANDERSON;

)MEMORANDUM OF POINTS AND

RUTH MARTIN ET AL.)AUTHORITIES

et al.,)

)

Defendants.)(Restricting Extent or Use

) of Discovery Method)

)

) UNLIMITED CIVIL CASE

______)

Date: April ____, 2004

Time: 9:30 a.m.

Dept. 42

NOTICE IS HEREBY GIVEN that on April ____, 2004, at Department 42 of the Seaside Superior Court, located at 14 Court Street, Seaside, California, at at 9:30 a.m., or as soon 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 sanction against plaintiff’s counsel Miller Simons, Esq, The motion for protective order will be made on the ground that the selected method of discovery is unduly burdensome and threatening to defendant’s health, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.

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 on file herein, and on such oral and documentary evidence as may be presented at the hearing of the motion.

March 17, 2004______Richard Anderson, Esq.

Attorney for Defendant

Ruth Martin, Individually and as Trustee

for the Ruth Martin Family Trust

SUPPORTING DECLARATION OF RICHARD ANDERSON

I, Richard Anderson, declare that:

I am an attorney at law licensed to practice in all of the Courts of the state of California and I 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, except as to the matters stated on information and belief, and as such matters, I believe them to be true.
The exhibits attached to this declaration are true and correct copies of the documents they purport to be.
Good cause exists for the protective order sought by defendant Ruth Martin is of extremely frail health and the advanced age of 92 and it is her doctor’s opinion that she cannot withstand an oral deposition, and that when her health stabilizes she could be permitted to undergo a deposition on written questions. Exhibit A is a letter from her physician Yee Hong, M.D, to that effect.
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 him that I would need to seek a protective order and sanctions if he declined. He declined.
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 forward as noticed, and that he would not discuss the matter further. Exhibit C is my letter to plaintiffs’ counsel confirming that discussion.
By the time a reply is prepared and served, and the hearing of this matter is completed, defendants will have incurred $1500 in attorneys fees (4 hours paralegal time at $150 an hour, and 3 hours of attorney time at $300 an hour), a $23 filing fee, and $47 for messenger fees for this motion.

The foregoing is true and correct of my own knowledge under penalty of perjury. This declaration is executed in Seaside on March 17, 2004.

______

Richard Anderson

///

MEMORANDUM OF POINTS AND AUTHORITIES

Introduction

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, and in frail health. Exhibit A to the Declaration of Richard Anderson Supporting Motion for 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 deposition April 2, 2004. (Exhibit D.) Defense counsel telephoned plaintiffs’ counsel that same day to explain the situation and request that the deposition be postponed and taken on written questions. Defense counsel advised him that if he declined, a protective order and sanctions would be sought. He declined.

On March 14, 2004 defense counsel faxed plaintiffs’ counsel a letter making the same request. (Exhibit B.) On March 15, 2004, plaintiffs’ counsel telephoned defense counsel to say 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.

THE COURT HAS AUTHORITY TO RESTRICT THE EXTENT OF DISCOVERY ON MOTION FOR PROTECTIVE ORDER

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:

(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) 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.

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.

In this action, defendant Martin’s health and age preclude her oral deposition. Taking the depositon would threaten her fragile condition. On the other hand, a less stressful discovery alternative, depositon on written questions, is available. Givne that Ms. Martin has fleeting personal knowledge of the property, a depositon on written questions is likely to provide adequate information and testimony. If not, plaintiffs would be free to petition this court for relief from a protective order.

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.

Defendant’s counsel made four attempts to seek a stipulation for a continuance of defendant’s deposition and for deposition on written questions. However, plaintiffs’ counsel continued to refuse to compromise causing defendant to incur attorney’s fees in seeking this motion and drafting many letters trying to seek the continuance. Defendant will have incurred $1500 in attorneys’ fees and $70 in costs in making this motion.

Respectfully submitted,

March 17, 2004______Richard Anderson, Esq.

Attorney for Defendant

Ruth Martin, Individually and as Trustee

for the Ruth Martin Family Trust

______

Smart v. Martin

Motion for Protective Order