Case Number: KC067386 Hearing Date: July 20, 2016 Dept: J

Re: Kelly Yang v. Wayne Yang (KC067386 c/w 14P08676)

MOTION TO COMPEL DEFENDANT WAYNE YANG TO APPEAR AT AND TO PRODUCE DOCUMENTS AT HIS DEPOSITION, AND FOR MONETARY SANCTIONS

Moving Party: Plaintiff Kelly Yang

Respondent: Defendant Wayne Yang

In this action for quiet title, Plaintiff Kelly Yang alleges that she acquired the subject real property in or about 1994, but at the insistence of Plaintiff’s mother, the title to the residence was held in the name of Defendant Wayne Yang, Plaintiff’s brother. Plaintiff was, at that time, a recent widow, and this was allegedly done in order to protect Plaintiff in the event that she remarried or incurred debts or liabilities. Plaintiff alleges that despite Defendant’s promise, Defendant now refuses to acknowledge the ownership interest of Plaintiff. Plaintiff commenced this action on 1/14/15, asserting causes of action for:

1. Fraud
2. Quiet Title
3. Declaratory Relief

On 4/21/15, pursuant to stipulation and order, the unlawful detainer action filed by Defendant Wayne Yang against Plaintiff Kelly Yang, Case No. 14P08676, was consolidated with the instant case. Case KC067386 was designated the lead case.

On 7/27/15, Defendant Wayne Yang filed his cross-complaint against Plaintiff for fraud.

Trial is scheduled for 8/2/16.

Plaintiff moves for an order compelling Defendant Wayne Yang (hereinafter, “defendant”) to appear at his deposition and to produce documents identified in the Notice of Deposition and Demand for Production of Documents. Plaintiff also seeks sanctions of $2,580.00, to be imposed against defendant and his counsel of record, William Tooke, Esq. of Mirau, Edwards, Cannon, Lewin & Tooke jointly and severally.

On 5/30/16, a Notice of Deposition was served, setting defendant’s deposition for 6/17/16. (Declaration of Tony Forberg [hereinafter, “Forberg”], Exhibit “A”). On 6/10/16, defendant served his Notice of Objection thereto, on the basis that he had already been deposed. The parties have met and conferred.

Defendant Wayne Yang contends that (1) the motion is untimely, (2) he was already previously deposed in the unlawful detainer action and that (3) there was an inadequate meet and confer. Hoever, the exhibits attached to counsels’ moving and opposing papers reflect that an adequate meet and confer has, in fact, transpired.

CCP § 2024.020(a) provides that “any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” This instant motion is being heard on 7/20/16, two days after the 7/18/16 discovery motion cut-off date. While this court may grant leave to complete discovery, or to have a motion concerning discovery heard, closer to the initial trial date, but only “[o]n motion of any party.” CCP § 2024.050(a). Plaintiff Kelly Yang has not sought such leave. Defendant Wayne Yang’s argument in this regard, then, is well-taken.

Additionally, Defendant Wayne Yang was previously deposed on 2/10/15. “Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.” CCP § 2025.610(a). However, “for good cause shown, the court may grant leave to take a subsequent deposition, and the parties…may stipulate that a subsequent deposition be taken.”

The procedural history of this case reflects that Wayne Yang filed his unlawful detainer complaint in case styled Yang v. Yang, Case No. 14P08676 (hereinafter, the “UD Action”) against Kelly Yang on 10/31/14. On 1/14/15, Kelly Yang filed this instant action. On 2/10/15, Wayne Yang was deposed in the UD Action. On 4/21/15, a stipulation and order to consolidate this action and the UD Action was filed. On 7/27/15, Wayne Yang concurrently filed his answer and cross-complaint in this action.

Plaintiff Kelly Yang complains that the deposition in the UD Action transpired before Wang Yang filed his answer and cross-complaint in this instant action and before the cases were consolidated and that, as such, she could not have possibly inquired into the facts and evidence that support Wayne Yang’s pleadings in this instant action. Wayne Yang, in response, claims that he should not be further deposed, because his counsel and Kelly Yang’s prior counsel had a verbal understanding that the 2/10/15 deposition was to cover all issues in the UD Action and this instant action. Wayne Yang’s position is well taken, even in the absence of such a written agreement between counsel, inasmuch as the ownership issues between the parties were undoubtedly known at the time of his 2/10/15 deposition. There is no reason for successor counsel to obtain a “second bite at the apple” simply because he believes his predecessor counsel did not thoroughly depose the opposing party. At the very least, counsel for Plaintiff should have requested leave of court to conduct a second deposition of the Defendant.

Defendant Wayne Yang, however, subsequently advises that he is willing to submit to a second deposition, provided that “(1) counsel not re-hash areas covered by the first deposition, (2) the deposition occur at a mutually convenient location between counsel’s office who are located in Van Nuys and Redlands, and (3) the depositions of Fu-Lin Yang and Rocky Yang occur first…” (Opposition, 3:27-4:3). This compromise appears appropriate under the circumstances; however, this court cannot order that such a further deposition occur, based on the untimeliness of this motion. If counsel are willing to so stipulate, that is up to them.

The motion is denied.