Judge: Stephen Morgan, Case: MC027634, Date: 2022-12-15 Tentative Ruling

Case Number: MC027634    Hearing Date: December 15, 2022    Dept: A14

Background

 

This is a personal injury action. Plaintiff Valarie Nolte (“Valarie”1) and Richard Nolte (“Richard” and collectively “Plaintiffs”) alleges on January 06, 2016. that Defendant negligently, carelessly and recklessly owned, entrusted, managed, and maintained their premises so as to allow a dangerous condition to exist, specifically an unsafe ride with steps that negligently did not have a handrail for patrons to use, causing a Plaintiff, not specified, to fall and sustain physical injuries. 

 

On January 04, 2018, Plaintiffs filed their Complaint alleging three causes of action: (1) General Negligence, (2) Premises Liability, and (3) Loss of Consortium. 

 

On April 05, 2018, Defendant CEC Entertainment, Inc. dba Chuck E Cheese (“CEC”) filed its Answer. 

 

On April 27, 2018, CEC filed its Cross-Complaint against several cross-defendants, including Cross-Defendant Guangdong UNIS Technology, Co., LTD (“Guangdong UNIS”), amended on March 25, 2019.

 

On April 02, 2019, Defendant Lauran Bromley, now dismissed, removed this civil action from the Superior Court of the State of California for the County of Los Angeles to the United States District Court, Central District of California.

 

On October 18, 2019, the case was remanded to the Superior Court of the State of California for the County of Los Angeles.

 

On November 06, 2020, CEC filed a Stay of Proceedings due to bankruptcy. On March 02, 2021, CEC filed a modification of the stay, stating: “The stay is now indefinite/permanent. See the attached Confirmation Order.” (Notice of Termination or Modification of the Stay 03/02/2021.)

 

On January 05, 2022, the Court lifted the stay due to a stipulation entered into by the parties and entered and signed by the Honorable Marvin Isgur, United States Bankruptcy Judge.

 

On April 01, 2022, Guangdong UNIS filed a Motion to Quash Service of Summons.

 

Upon filing of the Motion to Quash, a lengthy dispute regarding discovery in relation to jurisdictional issues occurred and is still ongoing. The Motion to Quash was continued multiple times to accommodate the outstanding discovery issues.

 

On November 09, 2022, CEC filed this Motion to Strike the Declaration of Guangdong UNIS Technology Co. LTD.’s Vice-General Manager, Li Wen Ha, Used in Support of the Motion to Quash Summons and Cross-Complaint (“Motion to Strike”).

 

On December 05, 2022, Guangdong UNIS filed their Opposition.

 

No Reply has been filed.

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Legal Standard

 

The Court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The Court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)  

 

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Discussion

 

Application – CEC presents that the sole evidentiary support for Guangdong UNIS’s Motion to Quash is the declaration of Guangdong UNIS’ Vice-General Manager, Li Wen Hao (“Li”), signed under penalty of perjury. CEC disputes Hao’s assertion that Guangdong UNIS had no contacts with the State of California; however, it cannot cross-examine Li due to the Guangdong UNIS’ objections which state that depositions are against the law in China. CEC further presents that it attempted to coordinate a deposition in Taiwan, but Guangdong UNIS refused.

 

CEC requests that the Court strike Li’s declaration as Guangdong UNIS is engaging in the misuse of the discovery process due to its refusal to produce Li for deposition. CEC asserts that there are numerous issues with the Li’s declaration (i.e., the authenticity of Li’s signature, how the evidence was initially acquired in light of Guangdong UNIS’s position that it purportedly cannot provide verifications to responses to written discovery under Chinese law, Guangdong UNIS’s contradictory and constant position shifting, etc.). CEC backs their argument with the following precedents:

 

 

Guangdong UNIS argues that Li’s declaration meets all the requirements of Cal. Code Civ. Proc. § 2015.5 and is, therefore, admissible. That is, Li’s declaration recites that is true under the penalty and states the date and place of execution of perjury. Counsel for Guangdong UNIS, Chad Chen (“Chen”), presents that he became aware of potential penalties to Li if he were to take an oath to the United States or California (Decl. Chen ¶ 3); however, Chen presents that “[a]fter this Court required supplemental briefing on the issue of verifications and the declaration, it became more apparent and the law sided with the declaration and verifications being permissible without violating Chinese law.” (Opposition 7:17-19.) Chen also states: “Mr. Li signed the declaration in accordance with C.C.P §2015.5 and, as the law makes clear, he did not take an oath to the United States and therefore, is also not in violation of People’s Republic of China’s Civil Procedure Law Article 277.” (Opposition 8:8-10.) The Court notes that Chen did not provide a citation or explanation with these contentions.

 

Regarding the issue of Chinese law, Guangdong UNIS argues that Cal. Code Civ. Proc. § 2027.010 states:

 

“If a deponent is not a party to the action or an officer, director, managing agent or employee of a party, a party serving a deposition notice under this section shall use any process and procedures required and available under the laws of the foreign nation where the deposition is to be taken to compel the deponent to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection, copying, testing, sampling, and any related activity”

 

Guangdong UNIS argues that California law makes clear that parties must follow the laws of other nations when it comes to depositions and Li cannot provide a deposition as: (1) it requires an oath, (2) CEC did not follow the proper protocols to obtain a deposition in China, and (3) under Article 277 of the Chinese Law, Li may be subject to severe penalties for taking an oath to the United States and/or California.

 

As an initial matter, the Court notes that CEC has requested that Li take a deposition in Taiwan. The Court emphasizes to the parties that the selection of Taiwan as a destination for a deposition may, in itself, be the cause of conflict between the parties as relations between Taiwan and China are contentious. Specifically, Taiwan and China are engaged in a long-standing political conflict over the governance of Taiwan. That is, whether Taiwan is independent or a part of China.

 

Cal. Code Civ. Proc. § 2015.5 provides:

 

Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. The certification or declaration may be in substantially the following form:

(a) If executed within this state:

 

“I certify (or declare) under penalty of perjury that the foregoing is true and correct”:

 

_____________                       ________________

(Date and Place)                     (Signature)

 

(b) If executed at any place, within or without this state:

 

“I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct”:

 

______________                    _________________  

(Date)                                     (Signature)

 

 

Li’s declaration follows Cal. Code Civ. Proc. § 2015.5.

 

The Court next turns to the issue of the deposition and Chinese law.

 

Article 277 of Chinese Civil Law provides in English translation:

 

Any request for judicial assistance shall be made through channels prescribed by [relevant] international treaties concluded or acceded to by the People’s Republic of China; or in the absence of such a treaty, any request for judicial assistance shall be made through diplomatic channels.

 

A foreign embassy or consulate in the People’s Republic of China may serve process on and investigate and collect evidence [diaocha quzheng] from its citizens but shall not violate the laws of the People’s Republic of China and shall not take compulsory measures.

 

Except for the circumstances in the preceding paragraph, no foreign authority or individual shall, without permission from the competent authorities of the People’s Republic of China, within the territory of the People’s Republic of China, serve process or investigate and collect evidence [diaocha quzheng].

 

It appears that Guangdong UNIS’ argument that taking an oath to the United States and/or California violates Chinese law stems from the third paragraph of Article 277.

 

The U.S. Department of State’s judicial assistance regarding China seems to affirm this argument:

 

China does not permit attorneys to take depositions in China for use in foreign courts. Under its Declarations and Reservations to the Hague Evidence Convention and subsequent diplomatic communications, China has indicated that taking depositions, whether voluntary or compelled, and obtaining other evidence in China for use in foreign courts may, as a general matter, only be accomplished through requests to its Central Authority under the Hague Evidence Convention.  Consular depositions would require permission from the Central Authority on a case by case basis and the Department of State will not authorize the involvement of consular personnel in a deposition without that permission. Participation in such activity could result in the arrest, detention or deportation of the American attorneys and other participants.

 

(U.S. Department of State, China Judicial Assistance Information, Taking Voluntary Depositions of Willing Witness <https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/China.html> [as of Dec. 07, 2022].)

 

It appears parties often compromise and take their China-related depositions in Hong Kong. Hong Kong, under the one country two systems principle, has not traditionally been viewed as Chinese territory for purposes of Article 277. (See U.S. Department of State, Hong Kong Judicial Assistance Information, Taking Voluntary Depositions of Willing Witness <https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/HongKong.html> [as of Dec. 17, 2022] [“In Hong Kong, consular officers may take voluntary depositions of U.S. citizen witnesses without prior permission from Hong Kong authorities, provided no compulsion is used. If the services of a U.S. consular officer are required to administer an oath to the witness, interpreter and stenographer, such arrangements must be made in advance with the U.S. Consulate General directly. Consistent with Hong Kong’s declarations and reservations regarding the Hague Evidence Convention, consular officers are prohibited from taking voluntary depositions of non-U.S. citizen witnesses. As an alternative, if prior permission is granted by Hong Kong’s Competent Authority, voluntary depositions may be conducted by commissioners in Hong Kong regardless of the nationality of the witness, provided no compulsion is used.”].) There are a multitude of United States Cases that illustrate Hong Kong as a place for depositions of Chinese nationals. (See Junjiang Ji v. Jling Inc. (E.D.N.Y 2019) 2019 U.S. Dist. LEXIS 55341, 4-7 [motion to compel video conference deposition of Chinese national in Jong Kong because it can be conducted lawfully granted]; Jordan Outdoor Enters. v. Hubei Wild Trees Textiles Co. (M.D. Ga. 2014) 2014 U.S. Dist. LEXIS 48812, 2014 WL 1389042 [Chinese national deposed in Hong Kong in Georgia litigation]; Emerson Elec. Co. v. Suzhou Cleva Elec. Appliance Co. (E.D. Mo. 2014) 2014 U.S. Dist. LEXIS 89062, 14 fn. 6 [discussion of difference between depositions in China and Hong Kong, citing U.S. Department of State website]; SEC v. Zhuobin Hong (C.D. Cal 2021) 2021 U.S. Dist. LEXIS 202468 [court order to appear for deposition in Hong Kong]; Quintel Tech. Ltd. v. Huawei Techs., Inc. (E.D. Tex.) 2017 U.S. Dist. LEXIS 188353 [Huawei China depositions occurred in Hong Kong].) The Court notes that Macau has also been selected as a location for depositions under the same principle. (See Inventus Power v. Shenzhen Ace Battery (N.D.Ill. 2021) 339 F.R.D. 487, 506-507.)

 

The Court notes that a recent case, Xi Jing Chen v. C.H. Supermarket, Inc. (E.D.N.Y. 2021) 2021 U.S. Dist. LEXIS 261154 (“Xi Jing Chen”), discussed the improbability of traveling to Hong Kong from China during the COVID-19 pandemic. That is, at the time of Xi Jing Chen, there were strict rules governing travel between Hong Kong and China to stop the spread of COVID-19, making travel impossible. (Xi Jing Chen, supra, 2021 U.S. Dist. LEXIS 261154 at 5-6.) The current measures have changed[1]:

 

If only stayed in Mainland China or Macao

The days of a person's arrival at Hong Kong is counted with the day of arrival at Hong Kong as Day 0. For example, for a person who arrives at Hong Kong on 26 September 2022, the “2nd day/Day 2” would be 28 September 2022.

(The Government of Hong Kong Special Administrative Region, Inbound Travel < <https://www.coronavirus.gov.hk/eng/inbound-travel.html#:~:text=All%20inbound%20persons%20must%20pass,accordance%20with%20the%20relevant%20regulations.> [as of Dec. 07, 2022].)

 

The Court has also looked at entry into China from Hong Kong. The Chinese Center for Disease Control and Prevention’s English website is limited. (See Chinese Center for Disease Control and Prevention (EN) <https://www.chinacdc.cn/en/> [as of Dec. 07, 2022].) It’s layout and format are substantially different from the Chinese version which allows for searching and includes recent articles and their release date. (See Chinese Center for Disease Control and Prevention (EN) <https://www.chinacdc.cn/> [as of Dec. 07, 2022].)  In contrast, the English website allows a user to click on tiles for a brief description of each topic. A tile exists for COVID-19, but does not provide any articles on travel. The Court turns next to the National Health Commission of the People’s Republic of China’s website. (See National Health Commission of the People’s Republic of China <http://en.nhc.gov.cn/> [as of Dec. 07, 2022].) The National Health Commission of the People’s Republic of China provides a search function, though not organized by date. On December 07, 2022, the National Health Commission of the People’s Republic of China released a statement on their COVID-19 policy that indicates nucleic acid tests should be further reduced and antigen tests can be rolled out based on local circumstances and “[c]ross-regional travellers [sic] are also waived from these requirements [proof of negative nucleic acid testing results or check digital health codes of visitors] and are no longer required to take a test upon arrival.” (The National Health Commission of the People’s Republic of China, China Optimizes COVID-19 Policies (Dec. 07, 2022) < http://english.www.gov.cn/statecouncil/ministries/202212/07/content_WS63909eb2c6d0a757729e4112.html> [as of Dec. 07, 2022].)

 

To further support that travel from Hong Kong to China is allowed, the Office of the Commissioner of Foreign Affairs of the People’s Republic of China in the Hong Kong Special Administrative Region released a statement on August 24, 2022 indicating Hong Kong nationals can resume Chinese visa applications and that foreign nationals in Hong Kong holding a valid APEC Business Travel Cards (Virtual ABTC excepted) or residence permits for study are allowed to enter the Mainland of China with no need to apply for new visas. (Office of the Commissioner of Foreign Affairs of the People’s Republic of China in the Hong Kong Special Administrative Region, Notice on the Adjustment of Requirements for Chinese Visa Application During COVID-19 Pandemic (Aug. 24, 2022) <http://hk.ocmfa.gov.cn/eng/fwxx/wgrqz/202206/t20220609_10700883.html> [as of Dec. 07, 2022].)

 

There is no doubt that Li, a Chinese national, can return to China now that foreign travel has resumed.

 

Regarding video conference depositions, it appears that the same standard regarding Chinese Civil Law Article 277 applies. That is, it is undisputed that testifying via video link while in mainland China violates Article 277 of the Chinese Civil Law, but a video conference deposition from Hong Kong is lawful.  (Junjiang Ji v. Jling Inc. (E.D.N.Y 2019) 2019 U.S. Dist. LEXIS 55341, 33-34 and 39.)

 

Based on the above analysis, a deposition of Li may occur.

 

Accordingly, the Court declines to rule on the Motion to Strike at this time. The parties are ordered to meet and confer regarding a schedule for Li’s deposition.

 

 

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Reply

 

CEC present that Guangdong UNIS “S has not addressed the undeniable fact that it would be patently unfair and unjust to consider Mr. Li’s declaration where CEC is deprived of its right to examine Mr. Li as a witness and test his credibility.” (Opposition 2:16-18.) CEC highlights that Fost v. Superior Court (2000) 80 Cal.App.4th 724 (“Fost”) holds “[w]here a witness refuses to submit to cross-examination, or is unavailable for that purpose, the conventional remedy is to exclude the witness's testimony on direct.” (Fost, supra, 80 Cal.App.4th at 735.) CEC presents that the Fost holding governs this motion. \

 

CEC argues that Guangdong UNIS’ Opposition relies on an erroneous interpretation of Cal. Code Civ. Proc. §2015.5 and 28 U.S.C. § 1746. That is, CEC believes that Guangdong UNIS’ interpretation that the aforementioned statutes by themselves permit a sworn affidavit to be admissible as evidence in lieu of deposition testimony is incorrect. CEC believes that Cal. Code Civ. Proc. § 2015.5 means that a declaration is only permitted to be considered “with like force and effect” as deposition testimony where it is allowed by another statute or law and, in civil actions, the general rule is absent statutory authorization, stipulation of the parties, or a waiver by failure to object, an affidavit or a declaration under penalty of perjury is not competent evidence; it is hearsay because it is prepared without the opportunity to cross-examine the affiant. (See Windigo Mills v. California Unemployment Ins. Appeals Bd. (1979) 92 Cal.App.3d 586, 597.) CEC presents that 28 U.S.C. § 1746 is essentially the same as Cal. Code Civ. Proc. § 2015.5, but codified under federal law and, as such, it allows affidavits and declarations may also be considered in federal court on a motion for summary judgment, but nothing in these rules and statutes that would allow said declarations to be considered where the veracity of the statements contained therein cannot be tested. CEC then cites that a 75 days’ notice is needed in California courts for a motion for summary judgment to allow for an opposing party to have a full and fair opportunity to cross-examine any witnesses who provided a declaration in support of said motion. (See Cal. Code Civ. Proc. § 437c(a)(2).) CEC next turns to Gunagdong UNIS’ arguments regarding Chinese law. CEC believes that Guangdong UNIS’ Chinese law argument does not make logical sense and that Guangdong UNIS should not be permitted to use Li’s declaration as evidence in support of its Motion to Quash where, by the language contained in Guangdong UNIS’s Opposition, it is allegedly not permitted under Chinese law. Finally, CEC argues that Guangdong UNIS has not demonstrated that any of the legal authority cited in CEC’s moving papers are truly inapposite. CEC then reiterates their legal authority.

 

As analyzed, ante, case precedent indicates that a deposition of Li can be taken, though not in mainland China. The Court’s opinion remains unchanged.

 

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Conclusion

 

The Court declines to rule on Defendant CEC Entertainment’s Motion to Strike the Declaration of Guangdong UNIS Technology Co. LTD.’s Vice-General Manager, Li Wen Ha, Used in Support of the Motion to Quash Summons and Cross-Complaint.

 

It appearing that the law allows for a deposition of Li Wen Ha in a Special Administrative Region (i.e., Hong Kong or Macau), the Court orders the parties to meet and confer regarding the scheduling of Li Wen Ha’s deposition.

 

The Court continues the hearing on Defendant CEC Entertainment’s Motion to Strike the Declaration of Guangdong UNIS Technology Co. LTD.’s Vice-General Manager, Li Wen Ha, Used in Support of the Motion to Quash Summons and Cross-Complaint to January 17, 2023 should the deposition fail to be scheduled.

[1] The Court focuses only on the travel of an individual from China to Hong Kong as Li resides in China.