Judge: Curtis A. Kin, Case: 21STCV38316, Date: 2022-09-13 Tentative Ruling

Case Number: 21STCV38316    Hearing Date: September 13, 2022    Dept: 72

MOTION TO COMPEL ANSWERS

TO DEPOSITION QUESTIONS

Date:               9/13/22 (8:30 AM)                             

Case:               Song Juan Fu v. Ashley Liu (21STCV38316)

TENTATIVE RULING:

Plaintiff Song Juan Fu’s Motion to Compel Answer and Deposition of Defendant Ashley Liu is GRANTED IN PART.

Plaintiff Song Juan Fu’s request to take judicial notice is DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.)

Plaintiff moves to compel answers to the following questions.

1. The name of the agency that helped Ashley Liu set up her company

2. Whether she had any dispute with her business partner

3. Whether there is any judgment against Ashley Liu

4. Whether there is any court judgment against Ashley Liu

5. Whether there is any pending court case against her

6. Whether there is a case pending in Orange County court against her

7. Whether there is any particular reason that she traveled to Tianjin in China

8. What kind of business reason for her travel

9. Whether she traveled for her business or other people’s business

10. Whether she had any business reason to stay in Shenzhen in 2019

11. Whether she had 100% interest in Boiling Pit Investment LLC

12. Whether she had any interest in any other company

13. Whether she owns any property

14. Whether she transferred any property to her family member in the past 5 years

15. Questions about Exhibit 13

16. Whether she has any interest in Aria Capital Entertainment Group LLC

17. Whether she had been sued by any other people for fraud

With respect to Questions 1-10, 15, and 17, defendant Ashley Liu refused to answer based on relevancy or public record. Defendant’s objections based on relevancy are unnecessary because they are not waived. (CCP §2025.460(c).) “[E]ven were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014.) “Deposing counsel's insistence on inquiring into irrelevant areas could justify suspension [of the deposition under current CCP § 2025.470], but only if it reaches the point where it could legitimately be said that counsel's intent was to harass, annoy, embarrass, or oppress.” (Id. at 1015.)

Defendant fails to show that counsel for plaintiff Song Juan Fu’s intent in asking the questions was to harass, annoy, embarrass, or oppress. Questions 3-6, 15, and 17 pertain to allegations against defendant by others. The Court notes that Question 15 references Exhibit 13, which pertains to a different lawsuit. (Wong Decl. ¶ 7 & Ex. A at 70:14-16.) Plaintiff is entitled to ask Questions 3-6, 15, and 17, even though they pertain to allegations from others beside plaintiff, because they may yield evidence of defendant’s motive and intent in obtaining plaintiff’s monetary investment by fraud. (Evid. Code § 1101(b).) Further, defendant cites no authority indicating that she may refuse to answer if the questions pertain to a publicly accessible record.

With respect to Questions 1, 2, and 7-10, it is unclear on their face whether they are not reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) To the extent that they are irrelevant, “witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process.” (Stewart, 87 Cal.App.4th at 1015.)

With respect to Questions 11-14 and 16, these questions seek to ascertain plaintiff’s assets and therefore pertain to defendant’s financial condition, or ability to pay a punitive damages award. (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 192.) Plaintiff has not obtained an order to conduct such discovery pursuant to Civil Code § 3295(c).

Even though plaintiff’s points and authorities contain a request for an order allowing plaintiff to conduct financial condition discovery, plaintiff did not properly notice a motion for pretrial financial condition discovery under Civil Code § 3295(c). “As a general rule, the trial court may consider only the grounds stated in the notice of motion.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) “A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (Rule of Court 3.1110(a).) The notice of motion only references the motion to compel defendant’s answers at deposition. No reference to financial condition discovery or Civil Code § 3295 is contained in the notice. Accordingly, defendant was not on notice of the need to submit an affidavit to oppose plaintiff’s affidavit referenced in the request for judicial notice or oppose the merit of plaintiff’s argument concerning financial condition discovery.  

Moreover, plaintiff did not pay a separate filing fee for any motion to compel financial condition discovery. The filing fee required by Government Code § 70617 concerning motions requiring a hearing applies “separately to each motion or other paper filed” “[r]egardless of whether each motion or matter is heard at a single hearing or at separate hearings.” (Gov. Code § 70617(f).) Here, plaintiff failed to comply.

For the foregoing reasons, the motion is GRANTED as to Questions 1-10, 15, and 17 and DENIED as to Questions 11-14 and 16. Defendant Ashley Liu is ordered to appear for a remote deposition on _________________, 2022, and answer Questions 1-10, 15, and 17. Plaintiff is permitted to ask follow up questions based on the responses to Questions 1-10, 15, and 17. Plaintiff could not have reasonably been expected to pose such questions during the deposition because defendant refused to respond.

Given the mixed result, plaintiff’s request for monetary sanctions is DENIED.