Case Name: Hsieh, et al. v. Lin, et al.
Case No.: 2015-1-CV-287361

According to the allegations of the first amended complaint (“FAC”), on February 5, 2003, plaintiffs Sherry Hsieh (“Sherry”) and Yeao-Nan Hsieh (“Yeao-Nan”) (collectively, “Plaintiffs”) loaned defendant Patrick Lin (“Patrick”) $56,000, which Patrick orally promised to pay with compound interest at the rate of 10%. (See FAC, ¶ 4.) On February 5, 2005, Patrick breached the agreement, and began residing in Taiwan with his wife Rosa Lin (“Rosa”). (See FAC, ¶¶ 5-6, 8.)

In August 2004, Patrick and Rosa also entered into a lease agreement with Plaintiffs for a monthly rent of $2,200 plus 6% interest compounded on any unpaid rent. (See FAC, ¶ 10.) On October 20, 2004, Patrick and Rosa permanently left the state of California and returned to Taiwan without notice to Plaintiffs. (See FAC, ¶ 11.)

On December 1, 2004, defendant Jemmy Lin (“Jemmy”)—Patrick and Rosa’s son—agreed to take over his parents’ lease. (See FAC, ¶ 12.) Jemmy made no rent payments from September 1, 2004 through November 30, 2004, and now owe $6,600 in unpaid rent plus compounded interest. (See FAC, ¶ 13.) Jemmy also made only partial payments of rent from December 1, 2004 to March 2015, such that $159,200 in unpaid rent, plus compounded interest is now owing. (See FAC, ¶ 14.)

On July 1, 2013, defendant May Lin (“May”) agreed to take over Jemmy’s lease; however, from July 1, 2013 to June 30, 2015, May made no rent payments, such that $64,000 in unpaid rent plus compounded interest is now owing. (See FAC, ¶¶ 15-16.)

Plaintiffs allege that they never released Patrick and Rosa from their obligation to pay rent, and thus they are liable as guarantors. (See FAC, ¶19.)

Plaintiffs allege that Patrick and Rosa’s absence from the state of California tolls the statute of limitations pursuant to Code of Civil Procedure section 351. (See FAC, ¶¶ 7, 18, 27, 35.)

On May 26, 2016, Plaintiffs filed the FAC against defendants Patrick, Rosa, Jemmy and May (collectively, “Defendants”), asserting causes of action for:

1) Breach of oral contract;
2) Breach of oral contract;
3) Fraud;
4) Fraud;
5) Common counts; and,
6) Common counts.

Defendants Patrick and Rosa move for summary adjudication of each cause of action of the FAC. Defendant Patrick also moves to compel the depositions of Sherry and Min Chou.

DEFENDANTS PATRICK AND ROSA’S MOTION FOR SUMMARY ADJUDICATION OF EACH CAUSE OF ACTION

Defendant’s burden on summary adjudication

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Defendants’ request for judicial notice

Moving defendants’ request for judicial notice of the complaints, and Patrick and Rosa’s answer is GRANTED. (Evid. Code § 452, subd. (d).)

Third and fourth causes of action

Moving defendants present evidence that Rosa did not make any statements or misrepresentations as alleged by the third and fourth causes of action. (See evidence cited by Pl.’s separate statement in opposition to motion for summary adjudication, nos. (“UMFs”) 7-20.) Defendants also present evidence that no statements were made to Sherry. (See evidence cited by UMFs 27-38.) Defendants also present evidence that a novation of the lease agreement occurred thereby releasing Rosa and Patrick from their obligation under the lease, and thus, they would not be liable for fraud based on the lease agreement. (See evidence cited by UMFs 80-84.) (See Wells Fargo Bank v. Bank of America (1995) 32 Cal.App.4th 424, 431-432 (stating that “[n]ovation is the substitution of a new obligation for an existing one… [t]he substitution is by agreement and with the intent to extinguish the prior obligation”).) Moving defendants meet their initial burden as to the third and fourth causes of action.

In opposition, Plaintiffs do not make any arguments with regards to the third and fourth causes of action. Moreover, Plaintiffs’ evidence submitted solely address the issue with regards to the statute of limitations. Plaintiffs fail to demonstrate the existence of a triable issue of material fact as to the third and fourth causes of action. Defendants Patrick and Rosa’s motion for summary adjudication of the third and fourth causes of action is GRANTED.

First, second, fifth and sixth causes of action as to defendant Rosa and plaintiff Sherry

Moving defendants present evidence that Rosa was not a party to the loan or the lease agreement. (See evidence cited by UMFs 1-6, 90-97.) Moving defendants also present evidence that Sherry was also not a party to the loan or the lease agreement. (See evidence cited by UMFs 21-26, 98-105.) Moving defendants meet their initial burden to demonstrate that the first, second, fifth and sixth causes of action lack merit as to defendant Rosa, and as asserted by plaintiff Sherry.

In opposition, Plaintiffs fail to demonstrate the existence of a triable issue of material fact. Instead, as previously stated, Plaintiffs’ evidence submitted address the issue with regards to the statute of limitations. Defendant Rosa’s motion for summary adjudication of the first, second, fifth and sixth causes of action is GRANTED as to her. Defendant Patrick and Rosa’s motion for summary adjudication of the first, second, fifth and sixth causes of action is GRANTED as to plaintiff Sherry.

Second and sixth causes of action

As with the fourth cause of action, moving defendants present evidence that a novation of the lease agreement occurred thereby releasing Rosa and Patrick from their obligation under the lease, and thus, they would not be liable for fraud based on the lease agreement. (See evidence cited by UMFs 75-84, 106-110.) (See Wells Fargo Bank v. Bank of America (1995) 32 Cal.App.4th 424, 431-432 (stating that “[n]ovation is the substitution of a new obligation for an existing one… [t]he substitution is by agreement and with the intent to extinguish the prior obligation”).) Moving defendants meet their initial burden as to the second and sixth causes of action.

In opposition, Plaintiffs do not make any argument with regards to any novation. Moreover, Plaintiffs’ evidence submitted solely address the issue with regards to the statute of limitations. Plaintiffs fail to demonstrate the existence of a triable issue of material fact as to the second and sixth causes of action. Defendants Patrick and Rosa’s motion for summary adjudication of the second and sixth causes of action is GRANTED.

Statute of limitations

The last issue with regards to the motion for summary adjudication is whether Plaintiffs’ claims are barred by the statute of limitations. In light of the above rulings, the remaining causes of action are the first cause of action for breach of oral agreement, and the fifth cause of action for common counts. Both such causes of action must be brought “[w]ithin two years.” (Code Civ. Proc. § 339 (pertaining to “an action upon a contract, obligation or liability not founded upon an instrument of writing”).) Moving defendants present evidence that the breach occurred on July 31, 2003. (See evidence cited by UMFs 39-43.) The complaint was not filed until October 28, 2015—more than 12 years later. (See UMF 44.) Moving defendants present evidence demonstrating that Patrick and Rosa have been in the State of California for more than two years since July 31, 2003. (See evidence cited by UMFs 45-46, 67-74.) Moving defendants meet their initial burden to demonstrate that the first and fifth causes of action are barred by the two-year statute of limitations of section 339.

In opposition, Plaintiffs’ separate statement does not cite to any evidence demonstrating the existence of a triable issue of material fact; instead, the separate statement merely states “disputed. It is his [or her] statement.” Moreover, the evidence that Plaintiffs have submitted is not admissible evidence that demonstrates the existence of a triable issue of material fact. Instead, Plaintiffs present their own declaration stating that: the Defendants’ passports are counterfeit; Defendants had knowledge of the consequences if they presented genuine passports; Sherry has her own timeline of Patrick and Rosa’s time in California “based on Sherry Hsieh’s best knowledge; there is no rent issue of statute of limitations; and, there is no loan issue of statute of limitations. (See Pls.’ decl. in opposition to motion for summary adjudication, ¶¶ 1-5.) Plaintiffs also present a copies of Patrick and Rosa’s passports with notes indicating as to how Plaintiffs conclude that the passports are counterfeit. However, moving defendants object to this evidence, and the objections have merit. Defendants Patrick and Rosa’s objections numbers 1-11 are SUSTAINED. The Court did not rely on objections numbers 12-13 in making this Order. In light of the above ruling on the objections, Plaintiffs fail to demonstrate a triable issue of material fact as to the issue regarding the statute of limitations. Moving defendants’ motion for summary adjudication of the first and fifth causes of action is GRANTED.

MOTION TO COMPEL DEPOSITION OF SHERRY HSIEH AND MIN CHOU

Patrick contends that he served initial notices of deposition on December 4, 2017, setting Min Chou’s deposition for March 7, 2018 and Sherry’s deposition for March 14, 2018, but after meeting and conferring multiple times with both Sherry and Min Chou, they rescheduled the depositions for July 10, 2018 for Min Chou and July 11, 2018 for Sherry. After a translator retained for the deposition fell ill, Patrick’s counsel contacted Sherry to notify her of the situation and sought to reschedule them. According to Patrick’s counsel, he and Sherry agreed to reschedule the depositions for the week of July 23, 2018. Patrick’s counsel sent Sherry a confirmation email memorializing the agreement. On July 10, 2018, Patrick served amended notices of deposition as to both Sherry and Min Chou, scheduled for July 26 and 27. However, after receiving the amended deposition notices, Sherry contacted Patrick’s counsel to let him know that neither she nor Min Chou would appear for deposition on the noticed and agreed upon dates. Patrick moves to compel the deposition of Sherry and Min Chou.

Code of Civil Procedure section 2025.450 states that “[i]f, after service of a deposition notice, a party to the action… without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it… the party giving the notice may move for an order compelling the deponent’s attendance and testimony….” (Code Civ. Proc. § 2025.450, subd. (a).) “The motion shall be accompanied by a meet and confer declaration under Section 2016.040….” (Code Civ. Proc. § 2025.040, subd. (b)(2).)

Here, Patrick contends that he has properly met and conferred with both Min Chou and Sherry; however, the evidence in support of this contention suggests that he has, in fact, only conferred with Sherry. In fact, Patrick’s supporting memorandum confirms that he has only conferred with Sherry, but attempts to excuse this detail, noting that “the Court has allowed Ms. Hsieh to translate for Ms. Chou so that this matter does not become a quagmire of confusion and misunderstanding.” (Patrick’s memorandum of points and authorities in support of motion to compel depo attendance, p.2:21-23.) Sherry does not represent Min Chou, and, accordingly, cannot make agreements on her behalf, or otherwise speak or confer on her behalf. Patrick fails to demonstrate that the motion as to Min Chou is proper. Patrick’s motion to compel the deposition attendance of Min Chou is DENIED.

As to Sherry, she makes a litany of arguments in opposition—it is against the law to shorten the time to hear and file a motion to compel deposition attendance; Patrick’s counsel cancelled the deposition earlier and Sherry cannot afford to take more vacation time; Patrick’s counsel does not need to conduct a deposition when all he has to do is read the emails; and, Patrick refused to have his deposition taken, so Sherry can do that too—however, Sherry does not cite to any legal authority to support these assertions. In fact, Sherry’s arguments lack merit. Patrick demonstrates good cause for the deposition attendance of Sherry and it appears that Sherry and Patrick have adequately met and conferred, but that Sherry just refuses to comply with the deposition subpoena. Patrick’s motion to compel the deposition attendance of Sherry is GRANTED. Sherry Hsieh shall appear for deposition in accordance with the deposition notice, at the office of Miller, Morton, Caillat & Nevis, LLP on a day that will be set by the Court at the hearing of this motion.

In association with the motion to compel deposition attendance, Patrick additionally makes a request for monetary sanctions in the amount of $2,000.00 against Sherry and Min Chou. However, the request is not code-compliant and Patrick has not substantially prevailed against both Sherry and Min Chou. Patrick’s request for monetary sanctions is DENIED.

The Court will prepare the Order.