MOTION TO COMPEL DEPOSITION OF JOHNNY TSENG

Moving Party: Plaintiff Po-Sheng Ko

Respondent: No timely opposition filed

POS: Moving OK per the court’s ex parte order

In this action for fraud, Plaintiff alleges that Defendants fraudulently induced Plaintiff to pay $200,000.00 with the expectation of immigrating to the United States to serve as a professor and owner of Purlinton University. The Complaint, filed on 3/25/13, asserts causes of action for:

1. Fraud – Intentional Misrepresentation
2. Fraud – False Promise
3. Fraudulent Conveyance
4. Fraudulent Conveyance
5. Fraudulent Conveyance
6. Fraudulent Conveyance
7. Fraudulent Conveyance
8. Fraudulent Conveyance
9. Breach of Contract

FSC is set for 3/17/14. Trial is set for 3/25/14.

Plaintiff Po-Sheng Ko (“Plaintiff”) moves to compel the appearance at deposition of Defendant Johnny Tseng (“Tseng” or “Defendant”), and for sanctions against Defendant and his attorney in the amount of $2,470.00. The motion is made on the grounds that Plaintiff duly noticed the deposition of Tseng and Tseng’s refusal to appear for deposition is not substantially justified.

MOTION TO COMPEL DEPOSITION:

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document or tangible thing described in the deposition notice. (CCP § 2025.450(a).) If the motion is granted, the court shall impose a monetary sanction, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2025.450(c).)

MOTION TO COMPEL DEPOSITON BEYOND THE GEOGRAPHIC LIMITS:

Natural persons, including parties to the action, must be deposed within 75 miles from their residence; or (at the option of the deposing party) in the county where the action is pending at a place within 150 miles of the deponent’s residence. (CCP § 2025.250(a).) The court may order a party to appear for deposition beyond the limits stated above. (CCP § 2025.260(a).)

A noticed motion is required by the party seeking to take the deposition beyond the geographic limits. The motion should be supported by declarations establishing the necessity and reasons for exceeding the geographic limit, plus facts “showing a reasonable and good faith attempt” to resolve informally the issues presented by the motion. (CCP § 2025.260 (a)-(b).)

In ruling on the motion, the court must consider “any factor tending to show whether the interests of justice will be served” by granting the order, including: (1) whether the moving party filed the suit locally; (2) whether the deponent (party or party-affiliated witness) will be present to testify at trial of the action; (3) the convenience of the deponent; (4) the deponent’s whereabouts at the time for which the deposition is scheduled (assuming it has been scheduled); (5) the feasibility of conducting the deposition by written questions or by a discovery method other than a deposition; (6) the number of depositions sought to be taken beyond the geographic limits above; and (7) the expense to each party in requiring them to take the deposition where the deponent resides. (CCP § 2025.260(b).)

An order compelling a party to appear for deposition beyond the geographic limits above may be conditioned on the moving party advancing the deponent’s reasonable costs and travel expenses in attending the deposition. (CCP § 2025.260(c).)

The court “shall” impose a monetary sanction against the losing party unless it finds that party made or opposed the motion with “substantial justification” or other circumstances make sanctions “unjust.” (CCP § 2025.260(d).)

PLAINTIFF’S EVIDENCE:

Plaintiff submits evidence that on January 8, 2014, counsel for Plaintiff noticed the deposition for Defendant in their office for January 27, 2014 (Motion, Chen Decl. ¶ 6, Exh. D); on January 21, 2014, defense counsel sent an email taking the position that Defendant is a resident of Taiwan and that any deposition of Defendant should take place in Taiwan (Id. ¶ 10, Exh. H); and that counsel attempted to meet and confer regarding the deposition, but that the parties were unable to agree on the location of the deposition (Id. ¶¶ 11-15, Exhs. I-M). Plaintiff contends that Defendant’s deposition should move forward in the office of Plaintiff’s counsel because Defendant has provided no information or documentation confirming his residence in Taiwan and all the available documentary evidence demonstrates that Defendant is a resident of California. (Id. ¶¶ 3-9, Exh.s A-G.) Specifically, the evidence demonstrates that Defendant, in his discovery responses identified an address in Diamond Bar, California as his present residence address (Motion, Chen Decl., Exh. A: Response to Form Interrogatory No. 2.5, Exh. B: Responses to Special Interrogatory Nos. 26-27 and Responses to Request for Admissions No. 14); and that Defendant certified his non-foreign status in connection with the transfer of certain property (Id., Exh. C).

Plaintiff has met his burden demonstrating that Defendant is a resident of Diamond Bar, California and that he failed to appear for his deposition that was properly noticed. Defendant did not oppose the motion. Thus, the motion is granted. Defendant Johnny Tseng is ordered to appear and testify at a deposition at the office of plaintiff’s counsel at a time and date to be specified by plaintiff’s counsel.

Sanctions are warranted. Defendant and his counsel are ordered to pay counsel for Plaintiff reasonable monetary sanctions in the amount of $1,560.00 (6 hours at $250/hour + $60.00 filing fee) within 20 days.