Judge: Malcolm Mackey, Case: BC475181, Date: 2023-02-07 Tentative Ruling

Case Number: BC475181    Hearing Date: February 7, 2023    Dept: 55

BROWN v. ZIVE                                                                              BC475181

Date of Hearing: 2/7/23, Dept. 55

#7:  MOTION TO COMPEL DEPOSITION OF TRUSTEE DEUTSCHE BANK BY AND THROUGH PERSON MOST QUALIFIED AND PRODUCTION OF DOCUMENTS THEREAT.

Notice: Okay.

No Opposition

MP:     Plaintiff

RP:     

Summary

On 12/13/11, Plaintiff CHERIE BROWN filed the Complaint.

On 10/18/12, Plaintiff filed a Second Amended Complaint for (1) FRAUD, (2) QUIET TITLE AND (3) FRAUDULENT TRANSFER, alleging the foreclosure sale of the family residence at 3751 Lankershim Boulevard, initially due to VOUVAL ZIV’s, in a conspiracy with other defendants, inducing her to make payments on a loan to him, based upon misrepresentations of being an experienced real estate attorney.  Also, that pleading alleges post-judgment aiding and abetting of sale of the subject property to Lanker Partnership,  to hinder Plaintiff as judgment creditor, after prevailing at trial on those underlying facts.

Before reversal and remand in appellate proceedings (opinion, filed 11/16/21), the Court had granted moving defendants motion to dismiss this action under the five-year statute.

On 11/16/21, an appellate opinion directed a new order denying a motion to dismiss as to the causes of action for quiet title and fraudulent conveyance, and reconsidering dismissal as to the cause of action for fraud.

On 11/14/22, Plaintiff filed a notice of appeal from the Summary Judgment on 9/27/22 for Defendant DEUTSCHE BANK.

MP Positions

Moving party requests an order compelling the deposition of the person most qualified for  Defendant DEUTSCHE BANK, on bases including the following:

·         Defendant failed to designate a deponent, or to appear for a validly noticed deposition.

Tentative Ruling

The motion is ordered off calendar.

There is an automatic stay caused by Plaintiff’s notice of appeal filed 11/14/22 from the Summary Judgment on 9/27/22 for Defendant DEUTSCHE BANK.

“[W]hether a matter is 'embraced' in or 'affected' by a judgment within the meaning of section 916 depends upon whether postjudgment trial court proceedings on the particular matter would have any impact on the 'effectiveness' of the appeal. If so, the proceedings are stayed….”  Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal. App. 4th 1168, 1173 (citing CCP §916).  Accord  Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 51  (“ ‘In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results.’ ”);  Henry M. Lee Law Corp. v. Sup. Ct. (2012) 204 Cal.App.4th 1375, 1383 (changing attorney fee award to make it payable to another would have no impact on the effectiveness of the appeal);  City of Santa Monica v. Stewart (2005) 126 Cal. App. 4th 43, 79.  Even where there is no automatic stay pending appeal, judges can exercise discretion to continue or stay proceedings until an appeal is decided.  Reed v. Superior Court (2001) 92 Cal. App. 4th 448, 455.

Therefore, the Court does not address applicable law, such as the following.

“Code of Civil Procedure section 2025, subdivision (d)(6), provides that if a deposition notice describes matters on which examination is requested, ‘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.’"  Maldonado v. Sup. Ct. (2002) 94 Cal. App. 4th 1390, 1395-98 (requiring granting of motion to compel depositions, where corporation’s person most knowledgeable had little knowledge, and the corporation lacked proof that the person endeavored to get access to information and documents reasonably available within the corporation.).