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

 

DEZHONG LIU and SUFEN LIU,

 

                                            Plaintiffs,

vs.

 

JIM YINGJIAN WU, and DOES 1 to 10, inclusive,

 

                                            Defendants.

And related cross-action.

 

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Case No.: 22AHCV00329

 

[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.]

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                        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.