Willoughby v. Superior Court

California Court of Appeal Sep 30, 1985 No. A030251Published

Before: Sabraw

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Holding. The court held that Code of Civil Procedure section 2019, subdivision (b)(1) does not authorize a trial court to exclude parties to an action from attending a deposition. The statute's express language permitting the presence of parties precludes any judicial order to the contrary.

Issues

Whether a trial court has the authority under Code of Civil Procedure section 2019, subdivision (b)(1) to exclude a party from attending a deposition.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“To prevent a client’s presence during the cross-examination of the opposing party at deposition would significantly and unreasonably impair trial counsel’s ability to effectively represent his client.”

Opinion

SABRAW, J.

Dianna Lui, real party in interest herein, filed suit against GTE Sprint Communications Corporation and Bud Higdon and Gilbert Willoughby, petitioners herein. Real party alleged that while she was employed at GTE, petitioners were her supervisors and subjected her to harassment, physical and verbal abuse, intimidation, threats, false accusations, intimidating interrogations and other encounters, insults and derogatory remarks both privately and in the presence of others. When her deposition was noticed, real party moved for a protective order to prevent the attendance of petitioners at her deposition. She supported her motion with an affidavit stating in relevant part as follows: “. . .Iam still extremely upset over the matters which led to this lawsuit. I do not believe I could remain calm and testify with a cool head if I were required to do so in the presence of defendants, Bud Higdon and Gil Willoughby, in a closed room while being interrogated and videotaped by their attorney. I have experienced fear and uneasiness at the thought of defendants possibly seeking some retribution from me because of my filing of this lawsuit or scaring me into dismissing the lawsuit. I do not believe that I could control these emotions if I am required to recount these matters in the presence of defendants, especially while my reactions were being photographed, [t] I believe that I would be able to testify more calmly and with better use of my mind for recall and deliberation if it were not done so in the presence of defendants while under the eyes of a video monitor.” Real party’s attorney also submitted a declaration stating that after discussing the matter with real party, he was of the view that it was unlikely that real party could testify calmly and with adequate reflection if she was required to do so in petitioners’ presence. Petitioner Willoughby filed a declaration in opposition to the motion for a protective order in which he stated that his conduct with real party had always been on a professional and courteous basis and would continue to be so.

Respondent court permitted the taping of the deposition but ordered that petitioners not attend. Petitioners have filed a timely petition for writ of

[892]

mandate to require respondent court to allow their attendance at the deposition.

Willoughby v. Superior Court

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SABRAW, J.

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