Judge: Donald F. Gaffney, Case: Daland v. Reynado, Date: 2022-07-27 Tentative Ruling



Demurrer to Complaint


Defendant Zenaida Reynado demurs to the first through fifth causes of action of Plaintiffs Natividad D. Daland, Albert A. Dichosa, Augusto A. Dichosa, and Benjamin A. Dichosa’s Complaint. For the following reasons, Defendant Zenaida Reynado’s demurer is OVERRULED.


In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.)  


Plaintiffs brought this action to recover their share of the proceeds derived from the sale of real property located in the Philippines, the Quezon City Property, in which they held an interest. (Compl. ¶ 1.) The Complaint alleges Defendant Zenaida D. Reynado and her siblings memorialized their understanding that following the death of their parents, each sibling (or their successors) would hold an undivided one-seventh interest in the Quezon City Property. (Compl. ¶ 5.) The Complaint further alleges that “Zenaida D. Reynado, Jose Bayani Baylon, Godofredo Jose D. Baylon, and Rafael Victoriano D. Baylon are entitled to a share of the proceeds of sale of the Quezon City Property in an amount according to proof. They have declined to join this action as plaintiffs, and are therefore joined as defendants pursuant to Section 382 of the Code of Civil Procedure.” (Compl. ¶7.)


Compulsory joinder is governed by Code of Civil Procedure section 389. Section 389(a) provides: “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.” A person meeting the Section 389(a) compulsory joinder provisions is deemed “necessary” to the action. (City of San Diego v. San Diego City Employees' Retirement System (2010) 186 Cal.App.4th 69, 83.)

Zenaida Reynado is a necessary and indispensable party because she has an interest in the Quezon City Property that is the subject matter of the instant litigation and because a ruling may impair Zenaida Reynado’s interest or leave parties to this action subject to a substantial risk of multiple or inconsistent obligations by reason of her interest in the Quezon City Property. (Code Civ. Proc., § 389(a).)


If the consent of anyone who should have been joined as a plaintiff cannot be obtained, they may be made a defendant, the reason thereof being stated in the complaint. (Code Civ. Proc., § 382.) Although named as a defendant, such a party is, in reality, a plaintiff in the case, and the fact that the party’s refusal to join in bringing the action makes it necessary to designate the party a defendant does not alter the essential relations of the parties to one another. (Watkings v. Nutting (1941) 17 Cal.2d 490.) Such a person may be said to be merely a nominal or formal party, without interest in or control over the suit. Zenaida Reynado is properly named as a nominal defendant. The demurrers to the Complaint and its causes of action are overruled.


Plaintiffs to give notice.


Motion to Compel Deposition


Plaintiffs Natividad D. Daland, Albert A. Dichosa, Augusto A. Dichosa, and Benjamin A. Dichosa move to compel Defendant Wilfrido Reynado to appear for deposition. For the following reasons, Plaintiffs’ motion is GRANTED.


Any party may obtain discovery by taking in California the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency. (Id.) The service of a deposition notice is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying. (Code Civ. Proc., § 2025.280(a).) If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. (Code Civ. Proc., § 2025.230.) In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent. (Id.) 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 or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, 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, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450(a).)


Code of Civil Procedure section 2025.210(b) provides, in pertinent part: “The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant.” Defendant Wilfrido Reynado does not oppose appearing for his deposition. Rather, Defendant objects to having his deposition taken prior to the hearing for Defendant’s Motion to Dismiss and the Specially-Appearing Baylon Defendants’ Motion to Quash because the court may decline to exercise jurisdiction or decide to stay the matter pending resolution elsewhere. Defendant, however, has not provided any authority that supports staying Defendant’s deposition pending resolution of Defendant’s Motion to Dismiss or other parties’ Motion to Quash.


Plaintiffs’ motion is based on the April 7, 2022, Notice of Deposition which set Defendant Wilfrido Reynado’s deposition for April 22, 2022. Plaintiffs have adequately demonstrated that after service of the deposition notice, Defendant failed to appear for examination without having served a valid objection. (Nardoni Decl. ¶¶2, 6, Exs. 1-2.)


Plaintiffs have also demonstrated that counsel met and conferred about Defendant’s nonappearance and made a good faith attempt to resolve the issue. (See Nardoni Decl. ¶¶ 7-8, Ex. 3.) Plaintiffs’ motion to compel Defendant Wilfrido Reynado’s deposition is granted.


Plaintiffs to give notice.