Judge: Malcolm Mackey, Case: 20STCV29246, Date: 2023-05-19 Tentative Ruling

Case Number: 20STCV29246    Hearing Date: May 19, 2023    Dept: 55

SHASHA ZHENG v. XIUYUAN HU                                                         20STCV29246

Hearing Date:  5/19/23,  Dept. 55

#5:      MOTION TO COMPEL ALLYSON KOHEN AKA WEIYONG TANG TO SIT FOR AN ORAL DEPOSITION AND REQUEST FOR ATTORNEY’S FEES AND SANCTIONS IN THE AMOUNT OF $8,286.24 AGAINST ALLYSON KOHEN AND DEFENDANT/CROSS-COMPLAINANT. 

Notice:  Okay

Opposition

MP:  Plaintiff/Cross-Defendant SHASHA ZHENG.

RP:  Defendant/Cross-Complainant XIUYUAN HU (opposition as to sanctions only)

Summary

On 8/3/20, Plaintiff/Cross-Defendant SHASHA ZHENG filed a Complaint.

On 11/4/22, Plaintiff filed a motion for leave to file a proposed First Amended Complaint, adding a 6^th Cause of Action for THEFT PURSUANT TO PENAL CODE §496, and 7^th Cause of Action for BREACH OF FIDUCIARY DUTY - DUTY OF LOYALTY.

On 12/9/22, Plaintiff filed a First Amended Complaint,  alleging:  Starting August 2, 2017, the day after the parties stated date of marriage separation, Defendant/Cross-Complainant XIUYUAN HU withdrew $13,314.16 total from bank accounts that Defendant orally agreed were her separate property acquired outside of marriage, and Plaintiff relied on Defendant’s representations as a knowledgeable law student, regarding filing a Joint Petition for Dissolution of Marriage based on having no community assets.  Further, Defendant inflicted emotional distress when he falsely emailed to Plaintiff’s employer that Plaintiff had faked practicing her employing entity’s religion, and that Plaintiff hacked Defendant's email and was engaged in espionage for the Chinese government.

The Plaintiff’s causes of action are:

1.      FRAUD

2.      CONVERSION

3.      UNJUST ENRICHMENT

4.      DEFAMATION  [OMITTED FROM FIRST AMENDED COMPLAINT].

5.      INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

6.      THEFT PENAL CODE §496(C)

7.      BREACH OF FIDUCIARY DUTY, DUTY OF UNDIVIDED LOYALTY.

On 2/1/21, Defendant XIUYUAN HU filed a Cross-Complaint against Plaintiff and counsel STEPHEN M. MARTIN, alleging that MARTIN knew the statements in his press release pertaining to the Complaint are false, and ZHENG and MARTIN are the authors or principals of agents who wrote an article and recorded a YouTube video, containing defamatory statements about HU, and ZHENG withdrew some of HU’s money from their joint account.

Cross-Complainant’s claims are:

1. LIBEL.

2. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

3. CONVERSION.

4. UNJUST ENRICHMENT.

5. PRELIMINARY AND PERMANENT INJUNCTION.

Trial is set for 7/31/23.

MP Positions

Moving party requests an order compelling a deposition, and imposing $8,286.24 in monetary sanctions against both deponent and Defendant, on bases including the following:

·         On 2/6/23, deponent Kohen was personally served with a Deposition Subpoena for Personal Appearance and Production of Documents and Things.

·         On 2/27/23, the deponent failed to appear.

·         Authority allows compelling the deposition.  CCP §2025.450(a).

·         Defendant should be sanctioned, because the deponent acted as Defendant’s managing agent.  A party should not be sanctioned, unless it had a legal or practical means to require the nonparty deponent to attend the deposition.  Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 600.

RP Positions

Opposing party advocates denying, for reasons including the following:

·         Ms. Kohen is not Defendant’s “managing agent.”  Waters v. Superior Court (1962) 58 Cal.2d 885, 896.  California Code of Civil Procedure § 2025.450(a) permits a court to impose sanctions for failure to appear at a deposition if the deponent is a party or an officer, director, or managing agent of a party.

·         Ms. Kohen was not employed by Defendant, and Defendant had no control over her actions or decisions. Hu Decl. ¶18. 

·         Defendant has not engaged in discovery misconduct.

·         At no time did Defendant ever advise Ms. Allyson Kohen to not appear for her deposition.

·         Defendant has lost all contact with Ms. Kohen since November 2022 and has no knowledge of her current whereabouts. Hu Decl. ¶¶9-13.

·         Defendant only knew Ms. Kohen personally as a friend and retained her services as an independent contractor based solely on her credentials as a certified translator. Hu Decl. ¶¶4-5.

Tentative Ruling

The motion to compel deposition attendance is ordered off calendar as moot.    

The deposition of Allyson Kohen was set for hearing at the March 29. 2023 ex parte in this department.  Both declarations admit the deposition took place.  

The moving party’s new requests for deposition answers, require another type of motion, with a separate statement.