Judge Holly J. Fujie, Case Number: 19STCV22166, Date: 2024-06-11 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTY: Plaintiffs Regan Yewata and American Myanmar Buddhist Federation, Inc.

On December 1, 2021, Plaintiffs Regan Yewata (“Yewata”) and American Myanmar Buddhist Federation, Inc. (“AMBF”) (collectively “Plaintiffs”) filed the operative First Amended Complaint (“FAC”) against Defendants Neza WTA MA (“MA”); Mya Hnin Yi (“Yi”); All Persons Unknown, Claiming Any Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property described in the Complaint Adverse to Plaintiffs’ Title thereto; and DOES 1 through 50 (collectively “Defendants”), inclusive. The FAC asserts the following causes of action: (1) Fraud; (2) Breach of Fiduciary Duty; (3) Constructive Fraud; (4) Constructive Trust; and (5) Quiet Title.

On February 24, 2020, Defendants MA and Yi (“Cross-Complainants”) filed a Cross-Complaint against Plaintiffs, alleging causes of action for: (1) Partition and (2) Fraud.

On May 14, 2024, Plaintiffs filed the instant Motion for Terminating Sanctions. On May 24, 2024, this Court advanced the noticed hearing date for the instant motion from July 15, 2024 to June 11, 2024. On June 4, 2024, Cross-Complainants filed an opposition. No reply has been filed.

Code of Civil Procedure Section 2023.030, states in pertinent part: “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose…[monetary, issue, evidence, or terminating] sanctions against anyone engaging in the misuse of the discovery process….” (Code Civ. Proc., § 2023.030, subds. (a)-(d).) “Misuses of the discovery process include, but are not limited to…(d) Failing to respond or to submit to an authorized method of discovery…(g) Disobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010.)

“Nevertheless, absent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.” (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.) “Even where nonmonetary sanctions are called for, they ‘”…’ should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’ [Citations] ‘”…[¶] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment.’”’ [Citations.]” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

“A trial court has broad discretion when imposing a discovery sanction.” (Lee, supra, 175 Cal.App.4th at 1559.) “In exercising this discretion [for nonmonetary sanctions], a variety of factors may be relevant, including, 1) the time which has elapsed since [the discovery requests] were served, 2) whether the party served was previously given a voluntary extension of time, 3) the number of [the discovery requests] propounded, 4) whether the unanswered questions sought information which was difficult to obtain, 5) whether the answers supplied were evasive and incomplete, 6) the number of questions which remained unanswered, 7) whether the questions which remained unanswered are material to a particular claim or defense, 8) whether the answering party has acted in good faith, and with reasonable diligence, 9) the existence of prior orders compelling discovery and the answering party’s response thereto, 10) whether the party was unable to comply with the previous order of the court, 11) whether an order allowing more time to answer would enable the answering party to supply the necessary information, and 12) whether a sanction short of dismissal or default would be appropriate to the dereliction.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796-97.)

Plaintiffs move for an order imposing terminating sanctions and/or evidence, issue and monetary sanctions against Cross-Complainants. The instant motion (the “Motion”) is made on the grounds that Cross-Complainants have engaged multiple discovery abuses: (1) in anticipation of and during the deposition of Cross-Complainant Yi and (2) by failing to make any efforts to have Cross-Complainant Ma appear at deposition. Specifically, Plaintiffs seek terminating sanctions striking Cross-Complainant Ma’s Answer to the FAC and Cross-Complaint. Alternatively, Plaintiffs seek evidence and issue sanctions (1) barring any testimony of Cross-Complainants in the lawsuit including in the form of declarations; and (2) ordering Cross-Complainant Yi to appear for cross-examination at trial. Finally, Plaintiffs seek monetary sanctions in the amount of $4,594.30 for the cancellation of the April 11, 2024 deposition and drafting of the instant motion.

On April 5, 2024, this Court ordered the deposition of Cross-Complainants to take place on April 11, 2024 at 10:00 a.m. (Pacific Daylight Time), in Thailand. (Fu Decl., ¶6, Ex. D.) Following the Court’s order, Plaintiffs served a Notice of Ruling for the April 11, 2024 deposition date on Cross-Complainants. (Id.) Three days before the noticed deposition, Cross-Complainants counsel told Plaintiffs’ counsel that Cross-Complainants could not attend the April 11, 2024 deposition. (Id., ¶7, Ex. E; Casas Decl., ¶13, Ex. G.) In fact, Cross-Complainants did not appear for the April 11, 2024 date as ordered. (Fu Decl., ¶12.) As such, Cross-Complainants failed to comply with the April 5, 2024 Court order.

Cross-Complainants contend that they were unavailable due limited-duration visas that required them to return to Burma/Myanmar before the mandatory curfew time and that they attempted to reschedule the deposition for April 10, 2024 with a Burmese Interpreter. Cross-complainants assert that Plaintiff refused to reschedule the deposition for the earlier date on the grounds that a court-certified Burmese Interpreter was not available on April 10, 2024 and Aung Aung Taik, although available for that date, was not a certified court interpreter.

Although Cross-Complainants assert that because non-certified court interpreters may for good cause shown be appointed by a judge for use in a court proceeding under Government Code Section 68561, subdivision (c) that they can be appointed for good cause pertaining to depositions, they provide no statutory or case law to support this assertion and this Court issued no such order.. Nonetheless, Cross-Complainants have shown that their failure to appear for the April 11, 2024 date was not willful but due to travel restrictions imposed by their country, Burma. Moreover, Cross-Complainant Yi was finally deposed on April 17, 2024 and has responded to all written discovery requests. Cross-Complainant Ma has also provided responses to all written discovery requests. Similarly, Plaintiffs have not sought to compel Cross-Complainant Ma to appear for the taking of his deposition after the April 11, 2024 date pursuant to Code of Civil Procedure Section 2025.450. Additionally, the prior March 27, 2024 order merely ordered the parties to meet and confer within a week from that date on a location with internet service to conduct the deposition, which the parties did. (Fu Decl., ¶¶4-5, Exs. B-C.) Thus, nonmonetary sanctions are not warranted at this time.

“The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.”

Here, Plaintiffs seek monetary sanctions in the amount of $4,594.30 for the cancellation of the April 11, 2024 deposition and drafting of the instant motion. As discussed above, Cross-Complainants’ conduct in not appearing for the court-ordered deposition was not willful but due to the travel limitations imposed by their country, Burma. Furthermore, Cross-Complainants attempted to meet and confer with Plaintiffs on rescheduling the deposition for an earlier date, on which they would be available to appear and be deposed. Moreover, Cross-Complainant Yi was subsequently deposed three days later. Lastly, Cross-Complainants have provided written responses to all of Plaintiffs’ discovery requests and Plaintiffs’ have not filed a reply brief showing otherwise. Based on the foregoing circumstances, imposition of monetary sanctions would be unjust at this time.

Therefore, the motion for terminating sanctions or in the alternative, evidence, issue, and monetary sanctions is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court