Judge: Daniel S. Murphy, Case: 22STCV36899, Date: 2023-12-13 Tentative Ruling

Case Number: 22STCV36899    Hearing Date: February 21, 2024    Dept: 32

BACKGROUND

            This quiet title action was initiated in November 22, 2022. On December 28, 2022, Plaintiffs Phuong Le Thai and Edward Lee filed the operative First Amended Complaint against Defendants Diana Lee, William Truong, and all persons claiming interest in the subject property located in El Monte (the Property). The FAC asserts causes of action for declaratory relief, quiet title, fraud, conversion, elder abuse, and accounting.

            According to the FAC, Plaintiff Phuong Le Thai (Phuong) wished to purchase the Property but failed to qualify for a loan. (FAC ¶ 11.) Around July or August 2017, Phuong proposed that her daughter, Defendant Diana Lee (Diana) purchase the Property in her name and hold legal title without assuming any obligations such as down payment, maintenance expenses, property taxes, and loan payments. (Id., ¶ 12.) Diana allegedly agreed to this arrangement and promised to convey title to Phuong once Phuong had paid all expenses related to the maintenance and preservation of the Property for a period of time sufficient to demonstrate her credit worthiness. (Id., ¶ 13.) Diana obtained title to the Property on September 14, 2017. (Id., ¶ 15.) The down payment was made using loans and gifts belonging to Phuong. (Ibid.) In June 2021, after Phuong had possessed the Property and paid the associated expenses for several years, Phuong demanded that Diana convey title to the Property to her in accordance with their agreement, but Diana refused. (Id., ¶¶ 16-17.)

Phuong was married to John Shing Lee (John Lee or Decedent), who died in September 2022. Decedent’s son, Plaintiff Edward Lee, pursues this action as Decedent’s successor-in-interest. The FAC alleges that Diana stole the following property: (1) Decedent’s portion of proceeds from the sale of Plaintiffs’ other residences in Nevada and California; (2) Decedent’s cash; (3) proceeds from Decedent’s life insurance policy; (4) and a 2006 Honda Pilot. (FAC ¶¶ 18-31.) Defendant William Truong, Diana’s husband, allegedly participated in the fraud and conversion.

On January 5, 2024, the Court granted Plaintiffs’ motion for leave to file a Second Amended Complaint adding causes of action based on fraudulent transfer.

On November 14, 2023, Defendants issued deposition notices to Plaintiffs, setting the depositions for December 19 and 20, 2023.

On November 28, 2023, Plaintiffs filed a motion for a protective order continuing the date of Plaintiffs’ depositions to February 2024. Plaintiffs argued that they were entitled to depose Defendants before Defendants deposed them, because Plaintiffs noticed Defendants’ depositions first. Plaintiffs took this motion off calendar as moot after the dates set for their depositions passed.

On January 22, 2024, Defendants filed the instant two motions to compel Plaintiffs’ depositions. Plaintiffs filed their opposition on February 6, 2024. Defendants filed their reply on February 13, 2024. 

LEGAL STANDARD

“If, after service of a deposition notice, a party to the action . . . without having served a valid objection under Section 2025.410, fails to appear for examination . . . the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document … described in the deposition notice.” (Code Civ. Proc., § 2025.450(a).) “If that party or party-affiliated deponent then fails to obey an order compelling attendance, testimony, and production, the court may make those orders that are just . . . .” (Id., § 2025.450(h).)

DISCUSSION

I. Deposition Notice

Defendants have attempted multiple times since October 2023 to ascertain Plaintiffs’ availability for deposition, but their correspondence was ignored. (Fok Decl. ¶ 3.) Without a sufficient response from Plaintiffs, Defendants issued deposition notices on November 14, 2023, setting the depositions for December 19 and 20, 2023. (Id., ¶ 4.) In the same email, defense counsel also indicated a willingness to reschedule if availability was an issue. (Ibid.) Plaintiffs responded that they would not appear on the scheduled dates because they noticed Defendants’ depositions first. (Id., ¶ 5.) After some more correspondence, Plaintiffs’ counsel declared that Plaintiffs would not appear on any date earlier than February 2024 and would not provide documentation demonstrating unavailability, and invited Defendants to file a motion to obtain earlier dates. (Id., Ex. A.)

II. Priority

            The Court first notes that priority does not apply in this case. “Except as otherwise provided by a rule of the Judicial Council, a local court rule, or a local uniform written policy, the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.” (Code Civ. Proc., § 2019.020(a).) The party who conducts discovery first naturally obtains some benefit, but this alone does not constitute annoyance, embarrassment, or oppression. (Rosemont v. Superior Court of Los Angeles County (1964) 60 Cal.2d 709, 714.)

            Plaintiffs cite to the State Bar’s civility rules, which state that “[w]hen another party notices a deposition for the near future, absent unusual circumstances, an attorney should not schedule another deposition in the same case for an earlier date without opposing counsel's agreement.” (State Bar of California Attorney Guidelines of Civility and Professionalism, § 9a(1).) However, this is not a binding rule that overrides Code of Civil Procedure section 2019.020(a), nor is it a bright-line rule to be applied strictly. Additionally, the Court has discretion to “establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” (Code Civ. Proc., § 2019.020(b).)  

            In this case, Plaintiffs have served deposition notices to Defendants no less than 6 times between January and November 2023, scheduling or rescheduling Defendants’ depositions for 11 different dates. (Fok Decl. ¶ 7.) The latest deposition notices were served on November 10, 2023, setting the depositions for January 16 and 17, 2024. (Ibid.) However, Plaintiffs’ counsel was unavailable on those dates and requested to reschedule the depositions yet again, to April 2024. (Id., ¶ 38, Ex. A.) Plaintiffs cannot repeatedly reschedule Defendants’ depositions for progressively later dates and then use that as an excuse to prevent Defendants from obtaining Plaintiffs’ depositions. Even under the civility rules, this would constitute “unusual circumstances” allowing Defendants to proceed with the depositions sooner.

III. Unavailability

            Plaintiffs’ counsel avers that he was unavailable on December 19 and 20, 2023 due to the holidays. (Lew Decl. ¶ 8.) Plaintiffs had served objections to the deposition notices, primarily arguing the priority issue but also mentioning counsel’s unavailability during the holidays. (Plntf.’s Ex. 5, 5A.) Plaintiffs’ counsel was also unavailable in January 2024 due to a trial. (Lew Decl. ¶ 10.) Plaintiffs are amenable to being deposed in late February or early March 2024 even though Defendants’ depositions have been continued to April 2024. (Id., ¶¶ 11-14.) In other words, Plaintiffs agree to be deposed before Defendants. Furthermore, Plaintiffs have produced all responsive non-privileged documents demanded in the deposition notice. (Id., ¶ 16.)  

CONCLUSION

            Defendants’ motions to compel deposition are GRANTED. Plaintiff Phuong Le Thai shall appear for deposition on or before March 4, 2024. Plaintiff Edward Lee shall appear for deposition on or before March 5, 2024. Plaintiffs’ depositions shall proceed without regard to the dates set for Defendants’ depositions. Sanctions are denied as the parties acted with substantial justification.