Judge: Margaret L. Oldendorf, Case: 22AHCV00329, Date: 2023-03-16 Tentative Ruling
Case Number: 22AHCV00329 Hearing Date: March 16, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
Plaintiffs, vs. JIM
YINGJIAN WU, and DOES 1 to 10, inclusive,
Defendants. And
related cross-action. |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
[TENTATIVE]
ORDER GRANTING THREE UNOPPOSED MOTIONS BY CROSS-COMPLAINANT TO COMPEL CROSS-DEFENDANTS
TO ANSWER DEPOSITION QUESTIONS Date: March
16, 2023 Time: 8:30 a.m. Dept.: P |
I. INTRODUCTION
Before the Court are motions to
compel the further depositions of Cross-defendants. As with a recent motion to compel further
responses to requests for production of documents, the Court concludes that the
objections interposed to certain questions are not well-taken. The motions are therefore granted.
II. LEGAL
STANDARD
A. Law Governing Motions to Compel Further Deposition
Answers
Code Civ. Proc. 2025.480 provides:
(a) If a deponent fails to
answer any question or to produce any document, electronically stored
information, or tangible thing under the deponent’s control that is specified
in the deposition notice or a deposition subpoena, the party seeking discovery
may move the court for an order compelling that answer or production.
(b) This motion shall be made
no later than 60 days after the completion of the record of the deposition, and
shall be accompanied by a meet and confer declaration under Section 2016.040.
(c) Notice of this motion
shall be given to all parties and to the deponent either orally at the
examination, or by subsequent service in writing. If the notice of the motion
is given orally, the deposition officer shall direct the deponent to attend a
session of the court at the time specified in the notice.
. . .
(j) The court shall impose a
monetary sanction under Chapter 7 (commencing with Section 2023.010) against
any party, person, or attorney who unsuccessfully makes or opposes a motion to
compel an answer or production, 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.
B. Law Governing Privacy Objection
Case law has established that several areas of an
individual’s life are entitled to privacy, among them are privacy in one’s
financial records, medical records, and employment records. This privacy interest
is not absolute and must sometimes yield if a balancing of interests so
requires. The case of Hill v. National Collegiate Athletic Assn. (1994)
7 Cal.4th 1 sets forth the process. First, a legally protected privacy right
must be identified, in which the party has a reasonable expectation to privacy,
the threatened invasion of which is serious rather than trivial. If these facts
exist, courts must then balance the invasion of that privacy with the competing
interests. “Privacy concerns are not absolute; they must be balanced against
other important interests. . . . Invasion
of a privacy interest is not a violation of the state constitutional right to
privacy if the invasion is justified by a competing interest. Legitimate
interests derive from the legally authorized and socially beneficial activities
of government and private entities.” Id. at 37-38.
III. DISCUSSION
A. Summary of Allegations
Dezhong Liu (Dezhong)[1] and
Sufen Liu (Sufen) filed their action Jim Yingjian Wu (Wu) on June 2, 2022. They
allege that they loaned $334,696.48 to Wu for his business and that he failed
to repay the money. The complaint contains causes of action for breach of
contract, common count for money lent, and fraud. In support of the prayer for
punitive damages Dezhong and Sufen allege that when it became clear to Wu that
they were not going to loan him any more money, Wu filed for divorce from their
daughter and denied that the money had been a loan.
On September 9, 2022, Wu answer and filed a cross-complaint.
The cross-complaint includes Wu’s ex-wife Linda Qiao (Qiao) as a
cross-complainant; and names as cross-defendants Dezhong, Sufen, and their
daughter Fangqin Liu (Fangqin). Wu, a medical doctor, alleges that he married
Fangqin in August 2020. He alleges that in hindsight he can see that Fangqin
saw him an easy mark whom she and her family could fleece. Wu alleges that
shortly after their wedding Fangin told him she had experience working at a med
spa and that opening one would be a good investment for them. A medical license
is needed in order to open a med spa. Wu agreed to this plan and formed AC
Medical Group, Inc., opened a bank account, and leased office space all for the
operation of this business. Unbeknownst to him, Fangqin allegedly used his
medical license and DEA number to order medications and drugs from overseas,
including restricted products. When he learned of this Wu became concerned that
Fangqin was putting patients’ safety at risk and his medical license in
jeopardy. Wu filed for divorce and began the process of closing down the
business.
Wu alleges that in retaliation for him filing for divorce
and closing the business, Fangqin and her parents orchestrated a coordinated
attack to ruin him and destroy his practice. In furtherance of the plan,
Cross-Complainants filed complaints with the Medical Board about him, some
concerning them, two on behalf of the Fangqin’s children from a prior marriage,
and two others by former patients Wu had treated for acne over a year prior. Wu
alleges that cross-complainants also filed a complaint in the name of his
former wife, Qiao. All of the complaints are allegedly fabricated. Many make similar
allegations, including insurance fraud, illegal kickbacks, illegal referrals, sexual
misconduct, drug and alcohol abuse, and negligence.
Wu alleges that these false filings resulted in the
Medical Board making an unannounced visit to Wu’s practice while he was in the
midst of treating a patient. They required a urine test, which was clean. But
this has caused him embarrassment and thousands of dollars in legal fees to
resolve matters with the Medical Board.
In his breach of fiduciary duty cause of action Wu
alleges that Fangqin shut him out of the med spa business, refused to let him
have a key and refused to provide any information about the costs or profits of
the business. He alleges she ordered medications without his permission using
his medical license and siphoned off a yet to be determined amount of cash.
In the conversion cause of action Wu alleges that as he was
moving to shut down AC Medical, Fangqin secretly moved all the medical assets
to a new corporation, named AC Aesthetic Group, Inc., at the same location as
the old business and engaging in the same business. All equipment and cash of
the business were converted and Fangqin continued to see patients even though
Wu had resigned as the supervising physician of AC Medical.
The third cause of action is for defamation. Here Wu
alleges that in retaliation for him filing for divorce and closing down the
business, Dezhong, Sufan, and Fangqin filed eight false complaints with the
medical board. Details of those reports are set forth in the pleading.
The fourth cause of action is for intentional infliction
of emotional distress.
The fifth cause of action is for fraud. Here Wu alleges
on information and belief that sometime during his marriage Dezhong and Sufan
funneled approximately $330,000 to Fangqin without his knowledge. Wu alleges he
does not know what she did with the money. He alleges that this is the money
Dezhong and Sufan allege in their pleading was a loan to him.
The sixth cause of action is for total equitable
indemnity and the seventh is for partial equitable indemnity. Wu alleges that
if he is found liable at all in the main action he is entitled to indemnify
from Fangqin.
The eighth cause of action is for declaratory relief.
B. Procedural History
Cross-defendants responded to the Cross-complaint by
filing an anti-SLAPP motion. Wu sought and obtained an order continuing the
hearing on that motion from its original hearing date in December 2022 to May
2023 and providing for limited discovery necessary to oppose that motion. This
is part of that discovery.
At issue are questions asked of the cross-defendants at
deposition. As with requests for production of documents, which were the
subject of a recent motion to compel further responses, objections were raised
to questions about reports made to the Medical Board. This motion seeks an
order compelling the deponents to answer those questions.
The sequence of events is summarized as follows:
On January 4, 2023, Wu’s counsel (Mark T. Kawa) took the
depositions of Sufen, Dezhong, and Fanquin, in that order. The depositions were
taken remotely. Kawa was in his office. Counsel for Sufen, Dezhong, and Fanquin
(Steven Sugars), the court reporter, and a Mandarin translator were each
located in separate locations. The deponents were together at their home and
with them was attorney George Young, Fanquin’s divorce attorney. Kawa
Declaration, ¶3. Kawa states his belief that during Sufen’s deposition she was being
coached by others in the room as he could hear voices in the background and
there were long pauses before answers were given; he raised objections to this
during the deposition. Id. at ¶4.
Kawa asked each deponent about the same things: (1) the
examinations they received from Wu that lead to their complaints to the Medical
Board; and (2) their communications either directly with the Board or with the
person who filed the complaint on their behalf. Objections were raised to these
questions. Id. at ¶5 and attached exhibits (excerpts from the
depositions).
On February 2, 2023, this Court heard and granted Wu’s
motion to compel cross-defendants to provide further responses to demands for
production and overruling Bus. & Prof. Code §800 and privacy objections.
On February 8, 2023, Mr. Kawa wrote a meet and confer
letter to Mr. Sugars regarding the questions that were not answered at
deposition based on the same objections that were overruled in the February 2
order. He asked if the clients intended to continue standing on their
objections. Mr. Kawa received no response to the letter. Kawa Declaration, ¶9
and Exhibit F.
C. Request For Order Compelling Further Answers Is
Granted
At issue are the
following questions asked of cross-defendants at deposition.
1.
Sufen Liu (or Yu)
Q: I’ll ask about this examination. [Referring to an examination
that occurred July 5, 2020.] [Deposition at 48:16]
A: [By Mr. Sugars] Objections were raised based on the privacy
of a person’s medical history. Argument was raised that because deponent has
not sued for medical malpractice the privacy privilege was not waived.
Q: Did you complain to the Medical Board? [Depo. At 26:9]
A: [Mr. Sugars objected and instructed client not to answer.]
Q: Did you ask anybody to complain to the medical board on your
behalf? [26:14-15]
A: [Objection and instruction not to answer.]
2. Dezhong Liu
Q: Were you treated on the same day that Dr. Wu treated your
wife? [Depo at 6:16-17]
A: [Objection based on confidentiality of medical information.]
Q: So, Mr. Liu, after you were treated by Dr. Wu on July 5,
2020, did you believe that Dr. Wu had provided competent medical services to
you? [Depo at 11:4-6]
A: [Objections based on confidentiality of medical information.]
Q: Okay. Mr. Liu, following the July 5, 2020 examination by Dr.
Wu, did you complaint to anybody, other than the Medical Board, about Dr. Wu’s
services that he rendered to you? [Depo at 12:2-5]
A: [Instruction not to answer based on privacy.]
Q: Mr. Liu, did Mr. Wu ever physical abuse you? [Depo at 12:12]
A: [Instruction not to answer unless question is limited to not
involving a medical examination.]
Q: And if I were to ask any questions about complaints to the
Medical Board, whether he made them or instructed anybody else to make them on
his behalf, or made complaints on behalf of somebody else, would you instruct
him not to answer questions along those lines? [Depo at 10:6-11]
A: [Yes.]
//
//
3. Fanquin Liu
[Initial questions regarding
Dr. Wu’s medical examination were objected to before asked. Deposition at
11:24-12:15.]
Q: Did you file a complaint with the Medical Board on your own
behalf? [p. 12:23-24]
A: [Objection and instruction not to answer based on privacy.]
Q: Did you file a complaint with the Medical Board on behalf of
your two children? [Depo at 13:12-13]
A: [Same objection.]
Q: Did you file a complaint with the Medical Board on behalf of
either of you parents? [Depo at 13:16-17]
A: [Same objection.]
Q: Did you file a complaint with the Medical Board on behalf of
any other person other than the ones we’ve mentioned? [Depo at 13:20-22]
A: [Same objection.]
The objections
raised to the above questions are overruled. Cross-Defendants have failed to
establish a privacy interest in the identity of persons who made allegedly
fraudulent reports to the Medical Board. Cross-Defendants have not opposed this
motion. Consequently, no evidence or argument is made in support of any privacy
interest as to either the medical examinations they received from Dr. Wu or any
report made to the Medical Board. The motions are granted.
D. Sanctions
Cross-Complainant Wu requests monetary sanctions against
each of the three cross-defendants pursuant to Code Civ. Proc. §2025.480(j).
The Kawa Declaration provides support for the monetary sanction requested. Mr.
Kawa declares that he spent 18 hours on the following tasks: meeting and
conferring with Mr. Sugars; preparing the ex parte application to shorten time
for the hearing of these motions; preparing these three motions, separate
statements, and declarations, plus preparing a reply and attending the hearing.
This appears to be a reasonable amount of time for these combined tasks. An
hourly rate of $400 is also reasonable. $400 x 18 hours is $7,200; adding $240
in filing fees brings the total sanction request to $7,440. Dividing the
sanction among the three cross-defendants results in sanctions of $2,480 each.
This request for monetary sanction is granted. Wu also requests an order that
Cross-defendants be compelled to pay the cost of a court reporter and
translator. No authority is cited for that relief and it is therefore denied.
IV. CONCLUSION
The motions to compel answers at deposition are
granted. Cross-defendants Dezhong Liu,
Sufen Liu/Yu, and Fangquin Liu are each ordered to appear for further
deposition to answer the questions at issue in this motion within 14 days of
notice of this order. Cross-defendants Dezhong Liu, Sufen Liu/Yu, and Fangquin
Liu are each further ordered to pay a monetary sanction of $2,480 to Wu within
30 days of notice of this order.
Moving party is ordered to give notice.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE
OF THE SUPERIOR COURT
[1]
Because three parties to this litigation share
the same last name they are referred to by their first names here. No disrespect
is intended. The opposition brief indicates that Sufen Liu has been erroneously
named and that her name is Sufen Yu. The pleadings have not been amended to
correct this.