LLC v. Liliana Calpitano, Trustee (Calpitano Family Living Trust) et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR PROTECTIVE ORDER (# 139)

The defendant Liliana Calpitano, acting both as trustee of the Calpitano Family Living Trust (trust) and in her individual capacity, moves for a protective order with respect to a notice of deposition served pursuant to Practice Book § 13–27(h) on February 11, 2011, by the plaintiff, Fountain Pointe, LLC. Calpitano seeks a protective order preventing the plaintiff from taking the deposition requested, that of a “representative” of the trust.   She argues that the deposition was improperly noticed because the notice was directed at “the Defendant Calpitano Family Living Trust,” which is not a legal entity, rather than one of the two co-trustees of the trust.

The court's power to issue protective orders is described in Practice Book § 13–5, which provides:  “Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense ․” “The use of protective orders and the extent of discovery is within the discretion of the trial judge.”  Peatie v. Wal–Mart Stores, Inc., 112 Conn.App. 8, 15, 961 A.2d 1016 (2009).

The court finds that Calpitano has failed to show that there is good cause to issue the protective order sought.   She is not named in the notice.   She has failed to demonstrate, or even state, how she would be subjected to “annoyance, embarrassment, oppression, or undue burden or expense,” within the meaning of § 13–5, if the deposition were allowed to proceed.   In other words she has failed to show any nexus between the claimed impropriety of naming the trust itself in the notice and any prejudice or harm to her interests, inasmuch as she has not been named in the deposition notice.

Calpitano is correct that the notice is improper under § 13–27(h).  That section provides, in relevant part:  “A party may in the notice and in the subpoena name as the deponent a public or private corporation or a partnership or an association or a governmental agency or a state officer in an action arising out of the officer's performance of employment and designate with reasonable particularity the matters on which examination is requested.”   A trust is generally defined as:  “a fiduciary relationship with respect to property, arising from a manifestation of intention to create that relationship and subjecting the person who holds title to the property to duties to deal with it for the benefit of charity or for one or more persons, at least one of whom is not the sole trustee.”   Restatement (Third), Trusts, § 2 (2003).   In other words, a trust is the imposition of a fiduciary duty on one person for the benefit of another and not an organization subject to being named as a deponent under § 13–27(h).  If the plaintiff wishes to compel a trustee to appear for a deposition, it must notice that person by name.   Naming the trust itself is insufficient to impose such an obligation on a trustee.

The motion for a protective order is denied.

Tanzer, J.T.R.

Tanzer, Lois, J.T.R.