Judge Cynthia A Freeland, Case 37-2023-00007969-CU-BT-NC 2023-10-06 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00007969-CU-BT-NC, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 05, 2023

10/06/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Business Tort Motion Hearing (Civil) 37-2023-00007969-CU-BT-NC TAN VS. HOLIDALE, INC. [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 07/14/2023

Defendant/Cross-Complainant Holidale, Inc. ('Defendant')'s motion to compel Plaintiff/Cross-Defendant Xiaoyi Tan ('Plaintiff')'s attendance and testimony at deposition, and for sanctions, is granted in part and denied in part.

Plaintiff's evidentiary objections are sustained.

California Code of Civil Procedure ('CCP') § 2025.010 authorizes a party to obtain discovery by way of a deposition of any person, including any party to the action. See Cal. Code Civ. P. § 2025.010. Proper service of a deposition notice 'is effective to require any deponent who is a party to the action . . . to attend and to testify . . . .' Cal. Code Civ. P. § 2025.280(a). Subject to various exceptions, 'a deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.' Cal. Code Civ. P. § 2025.290(a). Moreover, and pertinent to the present motion, CCP § 2025.480(a) provides that '[i]f a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.' Cal. Code Civ. P. § 2025.480(a).

On April 25, 2023, Defendant issued a Notice of Deposition and Request for Production of Documents at Time of Deposition (the 'Deposition Notice') to Plaintiff, asking that Plaintiff appear and testify at her deposition on May 9, 2023. See Lee Decl., Ex. A; Liu Decl., Ex. 1. Plaintiff did not object to the Deposition Notice, and the deposition went forward as scheduled on May 9, 2023. Defendant provided Plaintiff with a Mandarin interpreter to assist Plaintiff during the deposition. See Lee Decl., ¶ 6. As is evident from the conflicting declarations submitted in support of, and opposition to, the motion, counsel dispute what happened during the deposition. Defendant contends that the deposition proceeded slower than anticipated because of the Mandarin translation that was required, a fact that Plaintiff disputes. See Lee Decl., ¶ 6; Liu Decl., ¶ 6. Moreover, Plaintiff speculates, without admissible evidence, that Defendant's counsel sought to suspend the deposition because she needed additional time to print and review the documents Plaintiff provided. Defendant disputes this contention. See Lee Supp. Decl., ¶ 3.

However, the parties agree that: (1) the interpreter had to leave the deposition early, and (2) there was a particular line of questioning during the examination to which Plaintiff's counsel objected and advised his client not to answer. More specifically, during Defendant's counsel's examination of Plaintiff, the following exchange occurred: Calendar No.: Event ID: TENTATIVE RULINGS

3006288 CASE NUMBER: CASE TITLE: TAN VS. HOLIDALE, INC. [IMAGED] 37-2023-00007969-CU-BT-NC Q: So it's accurate to say you haven't bad to pay any money to Holidale under Exhibit 2, correct? Mr. Liu: Objection. Misstate witness testimony. Asked and answered.

The Witness: Why do I need to pay them? They already deducted that money.

Q: Is that your way of saying, no, you never paid Holidale any money under Exhibit 2? Mr. Liu: Objection. Misstate witness testimony.

The Witness: I don't understand this question. They already deducted. So I paid them, but in a different way, right? Q: How did you pay them? Mr. Liu: Objection. Asked and answered.

Q: How did you pay them? The Reporter: I didn't hear you.

Mr. Liu: Same objection.

The Reporter: Thank you.

The Witness: They already deducted the part from the rent.

Q: So you're saying the subtenants paid the rent to Holidale. Then Holidale deducted some amount, and then they paid you the rent from the remaining balance. Is that what you're saying? Mr. Liu: Objection. Misstate witness testimony. Asked and answered. Asked for le – calls for speculation, and witness is being harassed, and I instruct my client not to answer this question.

Ms. Lee: What's the basis for instructing the client not to answer? Mr. Liu: Well, the witness is obviously being harassed.

See Lee Decl., Ex. D.

According to the deposition transcript, Defendant's counsel suspended the deposition to 'give the parties an opportunity to meet and confer on the instruction not to answer as well as other items.' Ibid. Plaintiff speculates, without admissible evidence, that Defendant's counsel used the interpreter's availability as a pretext to suspend the deposition after Plaintiff's counsel refused an alleged request by Defendant's counsel off the record to suspend the deposition so that she could have more time to review the pertinent documents.

To start, Plaintiff cites no authority for the proposition that CCP § 2025.610's 'one deposition' rule applies where, as here, a deposition has been suspended/adjourned as opposed to concluded. The parties do not appear to dispute that Plaintiff's deposition lasted roughly 4.5 hours – less than the 7 hours permitted under the Code – before it was suspended. See Cal. Code Civ. P. § 2025.290(a).

Regardless of the reason(s) it was suspended, the motion is properly brought under CCP § 2025.480(a) given the undisputed fact that Plaintiff refused to answer the above line of questioning during her deposition. That being said, the court finds that Defendant has demonstrated the requisite good cause for an order that the deposition be resumed, and that Plaintiff be compelled to provide a complete response to the question. More specifically, the court, having reviewed the deposition transcript, must agree with Defendant that Plaintiff's responses to the line of questioning were, at best, contradictory and confusing. At one point, Plaintiff responds 'why do I need to pay them?' as if to suggest that she did not pay Defendant any compensation. However, Plaintiff goes on to explain that perhaps Defendant was paid by way of a deduction in the rent Defendant paid Plaintiff. Toward that end, the court must respectfully agree with Plaintiff that: (1) the line of questioning was not harassing, and (2) a complete response is warranted because it seeks information that is highly relevant to this dispute. Plaintiff alleges that Defendant was acting as a real estate broker for Plaintiff and not as a tenant under the parties' lease agreement. Defendant, in turn, has denied that it received compensation from Plaintiff for any real estate services. Consequently, Defendant is entitled to obtain discovery and testimony from Plaintiff so that it can understand Plaintiff's allegation(s) as well as any payment structure involving multiple parties.

Accordingly, Plaintiff must provide an answer upon the resumption of the deposition. See Cal. Code Civ.

P. § 2025.480(i).

CCP § 2025.480(j) provides that '[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes Calendar No.: Event ID: TENTATIVE RULINGS

3006288 CASE NUMBER: CASE TITLE: TAN VS. HOLIDALE, INC. [IMAGED] 37-2023-00007969-CU-BT-NC or opposes a motion to compel an answer or production, 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.' Cal. Code Civ. P. § 2025.480(j). The party opposing sanctions bears the burden of proving that he or she acted with substantial justification in failing to comply with a discovery request.

See Doe v. U.S. Swimming, Inc. (2011) 200 Cal. App. 4th 1424, 1435 (citing Cal. Evid. Code §§ 500 and 550; Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 971). Substantial justification means justification that is clearly reasonable because it is well grounded in both law and fact. See Doe, 200 Cal. App. 4th at 1434 (citing Nader Automotive Group, LLC v. New Motor Vehicle Bd. (2009) 178 Cal. App. 4th 1478, 1480). In this case, the court finds that, under the totality of the facts and circumstances, sanctions are not warranted against either party.

In light of the foregoing, the court grants the motion and orders that: (1) Plaintiff's deposition be resumed at a mutually agreeable date/time/place for a period not to exceed 2.5 hours, and (2) Plaintiff provide a complete response to the line of questioning to which she was previously directed not to respond. The parties' respective sanctions requests are denied.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, October 6, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 6, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID: TENTATIVE RULINGS

3006288