Judge Thomas D. Long, Case 20STCV34811 2022-09-15 Tentative Ruling

On September 11, 2020, Plaintiffs Jae Duck Chung and Chong Hui Chong (collectively, “Plaintiffs”) filed this action against Defendants Healthy Land Inc., Theresa H. Hwang, and Ambrosio Hwang (collectively, “Defendants”), alleging (1) breach of written contract, (2) breach of oral contract, (3) promissory fraud, (4) negligent misrepresentation, and (5) conspiracy to defraud. “The parties and relevant individuals share a last name. For clarity, convenience, and in order to avoid confusion, we refer to them by their first names and intend no disrespect.” (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)

On May 3, 2022, Plaintiffs noticed Theresa’s deposition for May 24, 2022. (Opposition to PO, Heath Decl., Ex. B; Motion to Compel, Heath Decl., Ex. C.) Defendants’ counsel claims to have sent objections on May 19, 2022, but Plaintiffs’ counsel could not find a copy of the objections. (Opposition to PO, Heath Decl. ¶ 4; Motion to Compel, Heath Decl. ¶ 5.) On May 24, 2022, Plaintiffs re-noticed the deposition for June 6, 2022. (Opposition to PO, Heath Decl., Ex. D; Motion to Compel, Heath Decl., Ex. E.) One week later, Defendants’ counsel stated they would not produce Theresa for a deposition, and she did not appear on June 6, 2022. (Opposition to PO, Heath Decl. ¶ 6 & Ex. E; Motion to Compel, Heath Decl. ¶ 8 & Ex. G.) The parties participated in an informal discovery conference on July 13, 2022.

On July 21, 2022, Defendants filed a motion for protective order for Plaintiffs’ deposition of Theresa.

Upon a showing of good cause, the Court may issue a protective order to protect a party or deponent from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. (Code Civ. Proc., § 2025.420, subd. (b).) The protective order may include directions that the deposition not be taken, be taken at a different time or place, be taken on certain specified terms and conditions, be taken by written instead of oral examination, or that the scope be limited to certain matters. (Code Civ. Proc., § 2025.420, subd. (b).) “[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

Plaintiffs argue the motion for protective order is fatally defective for failure to provide a notice of grounds for the issuance of the order and the relief sought. (Opposition to PO at pp. 5-6.) Although the motion does not comply with Code of Civil Procedure section 1010 and California Rules of Court, rule 3.1110(a), the Court will not deny for motion due to these deficiencies, as Plaintiffs were nevertheless able to adequately oppose the motion.

Defendants argue that the deposition is unduly burdensome and oppressive because it of is being used to intimidate and harass Ambrosio and is not based on Theresa’s actual knowledge or ability to give any information on the subject matter. (Motion for PO at pp. 2-3.) Defendants also argue that the financial discovery sought invades Theresa’s right to privacy. (Id. at p. 4.) Defendants contend that Theresa “has nothing to do with the Plaintiff’s breach of contract claim,” “Plaintiff has not made it clear how an alter ego allegation is relevant to this case,” and the alter ego allegations are an attempt at a fishing expedition. (Id. at p. 5.) Theresa declares that she is not the alter ego of Healthy Land. (Motion for PO, T. Hwang Decl. ¶ 4.)

However, Theresa is listed as the sole Officer, Director, and Agent for Service of Process of Healthy Land Inc. on the statement of information. (Opposition to PO, Heath Decl., Ex. K.) Ambrosio confirmed in his deposition that he and Theresa “are working as owners” of Healthy Land. (Opposition to PO, Heath Decl., Ex. A at pp. 12-13.) Plaintiff Chong declares that Theresa made various representations to him over the course of their relationship, and she had extensive knowledge of the company. (Opposition to PO, Chong Decl. ¶¶ 3-9.) Plaintiffs are entitled to take the deposition of a named defendant, especially considering Plaintiffs’ supporting evidence of Theresa’s involvement and Defendants’ lack of evidence to the contrary. There is no evidence provided to show that the deposition would invade Theresa’s financial privacy rights, and counsel may make proper objections during the deposition, if necessary.

Theresa declares that she is over the age of 80 and has “been suffering from illness that requires a physician’s evaluation on a regular basis,” and “[b]eing deposed for hours would cause unwarranted physical and mental hardship.” (T. Hwang Decl. ¶¶ 1, 3.) These statements are conclusory and insufficient to show that her deposition would cause unwarranted annoyance, embarrassment, oppression, or undue burden and expense. This is especially true when depositions may be taken by remote methods (Code Civ. Proc., § 2025.310; California Rules of Court, rule 3.1010), and Plaintiffs did notice a remote deposition (Opposition to PO, Heath Decl., Exs. B, D). The deposition could also be taken in multiple parts or with allowances for breaks as needed. Defendants have not shown good cause for a deposition by written questions instead of by oral examination. (See Motion for PO at p. 5.)

If a party to the action fails to appear for examination without making a proper objection, the party noticing the deposition may move to compel the deponent’s attendance and testimony. (Code Civ. Proc., § 20205.450, subd. (a).)

Defendants’ counsel argues that Plaintiffs’ counsel did not meet and confer or engage in a meaningful informal resolution before filing this motion. (Opposition to Compel at pp. 3-4.) This is contradicted by Plaintiffs’ evidence in support of the motion. On May 2, 2022, Plaintiffs’ counsel proposed deposition dates for Ambrosio and Theresa. (Motion to Compel, Heath Decl., Ex. B.)

On May 26, 2022, Plaintiffs’ counsel stated that he noticed the June 6 deposition to avoid any problems associated with the discovery cut-off date, and he stated that he was “happy to discuss with [Defendants’ counsel’s] office some other mutually agreed upon deposition dates.” (Motion to Compel, Heath Decl., Ex. F.) Defendants’ counsel responded that Plaintiffs’ counsel was “unilaterally noticing the deposition of [their] clients,” which “is sanctionable conduct,” and stated that he already provided objections explaining why they would not produce Theresa for deposition. (Motion to Compel, Heath Decl., Ex. G.) Defendants’ counsel sought availability on June 2, 2022 to meet and confer. (Motion to Compel, Heath Decl., Ex. G.) The same day, Plaintiffs’ counsel sent a letter explaining that, “due to your office’s consistent and material misrepresentations to the Court regarding our prior efforts to meet and confer, all such communications must now be in writing.” (Motion to Compel, Heath Decl., Ex. H.) Plaintiffs’ counsel proposed that Defendants appeared for their noticed depositions, and then Plaintiffs would waive the discovery cut-off for a plaintiff deposition on a mutually convenient date. (Motion to Compel, Heath Decl., Ex. H.) The next day, Defendants’ counsel stated via email, “We also objected to the deposition of Theresa Hwang sent to you on May 19, 2022,” and “This shall constitute our efforts to meet and confer on trying to resolve this dispute without the need for court intervention.” (Motion to Compel, Heath Decl., Ex. I.)

The parties exchanged additional emails without resolution, including one email documenting a telephonic “meet and confer” discussion on June 8, 2022. (Motion to Compel, Heath Decl., Exs. J-O.) Plaintiffs’ counsel sent another letter on June 10, 2022, and a July 12, 2022 email in advance of the IDC. (Motion to Compel, Heath Decl., Exs. P-Q.)

Following the July 13, 2022 IDC, Plaintiffs’ counsel sent a follow-up email requesting dates for Ambrosio’s deposition and stating that he would file a motion to compel Theresa’s deposition. (Motion to Compel, Heath Decl., Ex. R.) Defendants’ counsel indicated they would speak with Defendants about “the potential for having Theresa deposed.” (Motion to Compel, Heath Decl., Ex. S.) Defendants’ counsel later requested the specific areas of inquiry for Theresa’s deposition, which Plaintiffs’ counsel refused to provide under the work product doctrine. (Motion to Compel, Heath Decl., Exs. T-U.) Defendants’ counsel further responded by filing the motion for protective order. (See Motion to Compel, Heath Decl., Ex. V.)

These communications illustrate a good faith effort by Plaintiffs to resolve the matter before filing this motion.

It is not disputed that Theresa failed to appear for the noticed depositions on May 24, 2022 and June 6, 2022. Defendants’ counsel claims to have sent objections to the first notice. (Motion to Compel, Heath Decl. ¶ 5.) On May 31, 2022, Defendants’ counsel emailed Plaintiffs’ counsel regarding the second notice, stating, in part, “[Y]ou have already received our objection to the deposition of Theresa Hwang where we explained why we will not produce her.” (Motion to Compel, Heath Decl. ¶ 8 & Ex. G.)

Defendants argue that the Court should issue a protective order limiting the time and scope of the deposition because Theresa “is [a] third party that has no relevance to the operation of Healthy Land,” and her deposition “is being used to intimidate and harass her husband.” (Opposition to Compel at pp. 4-5.) In fact, Theresa is a defendant in this action, not a third party, and for the reasons stated with the motion for protective order, Plaintiffs have shown her relevance. Defendants reiterate their contention that the deposition “poses a serious danger to the physical and mental health of the Defendants, consisting of distress and anxiety that they have been undergoing regular treatment for, conditions they developed due to Plaintiff’s counsel’s bombarding the Defendants with irrelevant discovery.” (Id. at p. 5.) But Defendants provide no supporting evidence with this opposition.

The motion to compel deposition is GRANTED. Defendants are ordered to produce Theresa H. Hwang for deposition with 10 days.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court