Judge: Joel L. Lofton, Case: 20GDCV00722, Date: 2023-01-04 Tentative Ruling

Case Number: 20GDCV00722    Hearing Date: January 4, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     January 4, 2023                                   TRIAL DATE: April 11, 2023

CASE:                         LEAFIRE INC, a Delaware corporation, and LLULLLU LLC, a Delaware limited liability company, v. CADM INC.., a California corporation; JIANQIANG GU, an individual; HFE LLC, a California limited liability company; WEE HIN, an individual, ROBERT CHEN, an individual; CANNA HEALTHCARE, INC., a California corporation; LW VENTURES INC., a California corporation; COUNG THICH, an individual; 360 ESPINOSA ROAD II, LLC, a California limited liability corporation; CANNABIS STRATEGIC VENTURES, a Nevada Corporation, BENSHENG LI, a.k.a. BENSON LI, an individual; FONG SIMON YU, an individual; CAXYH LLC, a California limited liability company; CAYPFD LLC, a California limited liability company; CAMYG LLC, a California limited liability company; CAMG LLC, a California        limited liability company; CAJYQNG, LLC, a California limited liability company; and DOES 1 through 20, inclusive.

CASE NO.:                 20GDCV00722

MOTION TO COMPEL DEPOSITION TESTIMONY

MOVING PARTY:              Plaintiff Leafire Inc. (“Plaintiff”)

RESPONDING PARTY:      Defendant Jianqiang  Gu

SERVICE:                              Filed November 4, 2022

OPPOSITION:                       Untimely filed December 27, 2022

REPLY:                                   Filed December 27, 2022

RELIEF REQUESTED

            Plaintiff moves for an order compelling Jianqiang Gu to appear for an in-person deposition.

BACKGROUND

             This case arises out of Plaintiffs Leafire Inc. (“Leafire”) and Llulllu LLC’s (“Llulllu”) (collectively “Plaintiffs”) claim that the defendants in the present matter engaged in a fraudulent scheme regarding the management of marijuana facilities in exchange for a $12 million investment.

            On July 16, 2021, Plaintiffs filed this fourth amended complaint (“FAC”) against CADM, Gu, HFE, Wee Hin, Robert Chen, Canna Healthcare, Inc. (“Canna”), LW Ventures Inc. (“LW”), Cough Thich, 360 Espinosa Road II (“360 Espinosa”), Cannabis Strategic Ventures (“Cannabis Strategic”), Bensheng Li, Fong Simon Yu, CAXYH LLC, CAYFD LLC, CAMYG LLC, CAMG LLC, CAJYQNG LLC, and Does 1 through 20, alleging seventeen causes of action for: (1) fraud, (2) investment fraud, (3) breach of contract – first loan agreement,  (4) breach of contract – second loan agreement, (5) breach of contract August 24, 2020 MOU, (6) conversion, (7) damage to personal property, (8) intentional infliction of emotional distress, (9) civil extortion, (10) restitution from transferers based on unjust enrichment, (11) unfair competition, (12) avoidance of fraudulent transfer, (13) avoidance of fraudulent transfer, (14) avoidance of fraudulent transfer, (15) avoidance of fraudulent transfer, (16) avoidance of fraudulent transfer, and (17) avoidance of fraudulent transfer.

TENTATIVE RULING

            Plaintiff’s motion to compel is GRANTED. However, Gu’s deposition is ordered to be taken remotely, unless the parties agree otherwise.

LEGAL STANDARD

Code of Civil Procedure section 2025.450, subdivision (a), provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, 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 of Civil Procedure section 2025.450 subdivision (b) requires that any motion under subdivision (a) set forth specific facts showing good cause and a meet and confer declaration or, when a deponent fails to attend the deposition, a declaration stating the moving party contacted the deponent to inquire about the nonappearance.

DISCUSSION

             Plaintiff moves for an order compelling Jianqiang Gu (“Gu”) to appear for an in-person deposition. Plaintiff provides that after numerous attempts to schedule Gu’s deposition, a date was scheduled for November 9, 2022. Plaintiff provides that Gu objected to the deposition and requested that it be conducted completely remotely, with no other parties, attorneys, or deposition officers physically present. Plaintiff provides that it attempted to create a workable solution, including having only the deposition officer physically present with Gu, but Plaintiff provides that Gu rejected this proposal and did not appear for the November 9, 2022, deposition.

            In opposition, Gu provides, without submitting a supporting declaration, that he has faced threats directed at him and his family, which he claims originated from Plaintiff. He also claims that he was assaulted by an unknown individual.

            Code of Civil Procedure section 2025.310, subdivision (a), provides that “[a]t the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition.”

            Further, California Rules of Court Rule 3.1010, subdivision (a), provides that “[a]ny party may take an oral deposition by telephone, videoconference, or other remote electronic means”, provided certain procedural requirements are met. California Rules of Court Rule 3.1010, subdivision (b), provides that “[a]ny party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means”.

            The competing interests presented are Gu’s interest in ensuring his safety and Plaintiff’s interest in deposing Gu in a manner that ensures no misconduct during Gu’s deposition. Plaintiff seeks an order compelling Gu to appear for deposition either in the presence of Plaintiff’s counsel or a court reporter. However, Code of Civil Procedure section 2025.310 specifically provides that a court reporter may attend deposition remotely at the election of either the deponent or deposing party. Thus, if Gu elects to have the court reporter appear remotely, he may do so under Code of Civil Procedure section 2025.310.

            However, the Court notes that Gu has not moved for a protective order in the current instance. Further, other than attaching incident reports with no context whatsoever, Gu has not substantiated his claim that Plaintiff is seeking to inflict harm upon him. Still, Plaintiff has not established that the authority exists to compel Gu to testify within the presence of a court reporter, especially considering Code of Civil Procedure section 2025.310’s plain language.

            Because Gu’s deposition was noticed and he failed to appear for it, Plaintiff’s motion to compel is granted. However, Gu’s motion is ordered to be taken remotely, unless the parties agree otherwise.

            Sanctions

            Plaintiff also requests sanctions totaling $2,275 for the present motion.

            Code of Civil Procedure section 250.450, subdivision (g)(1), provides: “If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

            The Court finds that circumstances exist that make the imposition of sanctions unjust because Plaintiff seeks to compel Gu to testify in a manner inconsistent with the language of Code of Civil section 2025.310.

CONCLUSION

            Plaintiff’s motion to compel is GRANTED. However, Gu’s motion is ordered to be taken remotely, unless the parties agree otherwise.

Dated:   January 4, 2023                                             ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org