Case Name: Derek Holbrook v. Orkut Buyukkokten, et al.

Case No.: 16-CV-294531

I. Background and Discovery Dispute

This is an action brought by Derek Holbrook (“Plaintiff”) against Orkut Buyukkokten (“Buyukkokten”) and the Orkut Buyukkokten Trust (collectively, “Defendants”) for breach of contract and related torts arising out of the dissolution of a domestic partnership.

According to the allegations in the first amended complaint, Plaintiff and Buyukkokten began dating in 2006 and subsequently entered into a domestic partnership agreement. Plaintiff and Buyukkokten got engaged in early 2008, but were never married due to the passage of Proposition 8 later that year. In the years that followed, they had two children, for whom Plaintiff served as the primary caregiver, and acquired substantial real property. While the couple agreed to and did live as a married couple for all purposes, they did not jointly hold title to all of their real property and assets. In September 2015, Buyukkokten ended their relationship, evicted Plaintiff from several of their homes, and took the keys to his vehicle. Buyukkokten now claims he is the sole owner of the assets and real property acquired by the couple during the course of their partnership, some of which are held in the Orkut Buyukkokten Trust to which he is the sole trustee.

Based on the foregoing allegations, Plaintiff asserts causes of action against Defendants for: (1) breach of a non-marital partnership agreement; (2) fraud; (3) conversion; (4) breach of fiduciary duty; (5) accounting; (6) quantum meruit; (7) unjust enrichment; (8) constructive trust; (9) breach of the implied covenant of good faith and fair dealing; (10) intentional infliction of emotional distress; (11) negligent infliction of emotional distress; (12) libel and slander; (13) declaratory and injunctive relief; and (14) quiet title.

As relevant to the instant discovery dispute, Plaintiff took Buyukkokten’s deposition on February 2, 2016. (McCoy Decl., ¶ 5.) The notice of deposition required Buyukkokten to testify and produce documents including bank statements, cancelled checks, and related documents for any checking, savings, or investment accounts he maintained individually, jointly, or as a trustee. (McCoy Decl., Exh. B, Req. No. 5.)

Buyukkokten did not object to the deposition notice or the document requests therein in advance of the deposition. (McCoy Decl., ¶ 4.) Buyukkokten did not produce any bank records at the deposition. When asked about records for the specific bank account at issue in the instant motion, an account he maintained in his home country of Turkey, Buyukkokten did not object to production and instead stated he did not look for any bank records related to that account. (McCoy Decl., Exh. B.)

Plaintiff also asked Buyukkokten about other assets at the deposition, including a company he owns, Hello Networks, Inc. (McCoy Decl., Exh. C.) While Buyukkokten indicated the company raised 10 million dollars in 2014, when asked about the source of this funding he stated: “I’m not supposed to say that. Can I say that?” (McCoy Decl., Exh. C.) Defendants’ counsel then proceeded to make a prolonged speaking objection and engage in argument with Plaintiff’s counsel before finally instructing Buyukkokten not to answer. (McCoy Decl., Exh. C.) Defendants’ counsel argued that answering the question would violate the investors’ confidentiality and privacy. (McCoy Decl., Exh. C.)

After seven hours elapsed, Defendants’ counsel indicated the deposition was over and left with Buyukkokten. (McCoy Decl., Exh. D.) Plaintiff’s counsel objected, insisted the deposition remained open, and threatened sanctions. (McCoy Decl., Exh. D.)

The parties met and conferred in an attempt to informally resolve their discovery dispute. (McCoy Decl., Exhs. E-H.) Defendants assert they offered to extend Buyukkokten’s deposition for one hour during the course of the meet and confer discussions, but the parties ultimately did not agree to this extension or resolve their discovery dispute. (Kligman Decl., p. 7:18.)

Currently before the Court is Plaintiff’s motion to (1) extend the deposition of Buyukkokten, (2) compel an answer to the deposition question about the investors in Buyukkokten’s company, and (3) compel production of bank records for the account in Turkey. Plaintiff requests an award of monetary sanctions in connection with the motion. Defendants also request an award of monetary sanctions in opposition.

II. Discussion

A. Extension of Buyukkokten’s Deposition

Plaintiff argues the Court should allow the continued deposition of Buyukkokten because he could not fairly be deposed in seven hours. Specifically, Plaintiff argues additional time is necessary to depose Buyukkokten because he is the primary defendant and witness in this case involving fourteen causes of action and he maintained control over assets and documents pertaining to those assets. Additionally, Plaintiff argues Defendants and their counsel impeded and delayed the deposition.

In general, a witness may not be deposed for more than seven hours. (Code Civ. Proc., § 2025.290, subd. (a).) The statute provides certain categorical exceptions to this general rule that are based on case type. (Code Civ. Proc., § 2025.290, subd. (b).) Furthermore, “[t]he Court shall allow additional time, beyond any limits imposed by [section 2025.290], if needed to fairly examine the deponent or if the deponent, another person, or any other circumstances impedes or delays the examination.” (Code Civ. Proc., § 2025.290, subd. (a).)

As an initial matter, Defendants’ argument that none of the exceptions to the seven hour limit in Code of Civil Procedure section 2025.290, subdivision (b) apply is nonresponsive as Plaintiff does not rely on an exception in the first instance.

Turning to whether the Court should extend the deposition, Plaintiff has demonstrated more time is needed to depose Buyukkokten. As Plaintiff articulates, there are fourteen causes of action and Buyukkokten is both the primary defendant and witness, as he maintained control over many of the assets and relevant documents at issue in this case. Additionally, more time is needed to fairly depose Buyukkokten given the large number and variety of assets at issue. Finally, more time is warranted because Defendants’ counsel repeatedly impeded the deposition and caused delay by making lengthy speaking objections and Buyukkokten gave evasive answers. Plaintiff has therefore substantiated his request to continue the deposition of Buyukkokten.

The motion, to the extent it seeks to extend the deposition of Buyukkokten, is GRANTED. Within 30 calendar days of this order, at a date and time mutually agreed upon by the parties, Buyukkokten shall appear for continued deposition not to exceed 4 hours.

B. Motion to Compel Answer and Production

Plaintiff moves to compel Buyukkokten to answer the deposition question about the investors in Buyukkokten’s company, Hello Networks, Inc, and produce bank records for the account in Turkey pursuant to Code of Civil Procedure section 2025.480. Defendants argue Plaintiff’s motion is untimely.

Code of Civil Procedure section 2025.480, subdivision (a) states: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” “This motion shall be made no later than 60 days after the completion of the record of the deposition.” (Code Civ. Proc., § 2025.480, subd. (b).) The deadline for making a discovery motion is mandatory and jurisdictional. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; see also Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 136.)

Here, Plaintiff deposed Buyukkokten on February 2, 2016 and the deposition transcript was certified on February 23, 2016, which Plaintiff maintains is the date of completion of the deposition record. Plaintiff did not file his motion until May 23, 2016, well over 60 days later. Accordingly, Plaintiff’s motion was not filed within 60 days of completion of the deposition record, and is therefore untimely.

Plaintiff argues his motion is timely because the parties agreed to extend the deadline for his motion until after a case number was assigned by the Court following the transfer of this case from San Francisco County Superior Court. Unlike other statutory provisions, however, section 2025.480 does not authorize the parties to agree to extend the deadline for filing a motion to compel an answer or production in connection with a deposition. (Cf. Code Civ. Proc., §§ 2031.310, subd. (c), 2030.300, subd. (c).) Moreover, even if section 2025.480 contained such a provision, Plaintiff admits he did not file his motion by the parties’ agreed upon deadline. Consequently, Plaintiff’s motion is not timely under any circumstances.

Finally, for the first time in his reply, Plaintiff asks the Court to consider his motion despite its untimely filing based on Code of Civil Procedure section 473, subdivision (b). “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) Here, there is no judgment, dismissal, or adverse order or proceeding from which the Court could relieve Plaintiff. Moreover, Plaintiff has not filed and served a separately noticed application for relief. (See Code Civ. Proc., § 473, subd. (b) [party must file an application for relief.]) His request is therefore procedurally improper.

Plaintiff’s untimely motion to compel an answer and production is therefore DENIED.

C. Requests for Monetary Sanctions

1. Plaintiff’s Request for Monetary Sanctions

Plaintiff requests an award of monetary sanctions in the amount of $8,437.50. Plaintiff does not identify his request for monetary sanctions, the type of sanctions sought, or the parties against whom he seeks sanctions in his notice of motion as required by Code of Civil Procedure section 2023.040. Additionally, Plaintiff does not provide a statutory basis for an award of monetary sanctions. Plaintiff cites Code of Civil Procedure section 2031.310, which authorizes sanctions based on a motion to compel further responses to an inspection demand. Plaintiff did not file such a motion. Section 2031.310 does not, therefore, authorize an award of sanctions under the circumstances presented. Plaintiff’s request for monetary sanctions is therefore DENIED.

2. Defendants’ Request for Monetary Sanctions

Defendants request an award of monetary sanctions in the amount of $9,027.00 based on misuse of the discovery process. Defendants rely on Code of Civil Procedure section 2023.010, which defines misuse of the discovery process, and section 2023.030, which identifies the specific types of sanctions that may be imposed for misuse of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title.” Neither of these sections affirmatively authorize an award of sanctions and Defendants do not otherwise identify a specific statutory provision that does. Defendants therefore failed to substantiate their request for monetary sanctions, and it is DENIED.

D. Professionalism

The briefs and supporting documents submitted by both parties demonstrate a wide array of unprofessional conduct by both Plaintiff’s counsel and Defendants’ counsel. Such conduct includes, but is not limited to, improper speaking objections, hostile behavior, and threatening motions and sanctions without a good faith legal basis. Both Plaintiff’s and Defendants’ counsel are ordered to review and comply with the Santa Clara County Bar Association’s Code of Professionalism, as adopted by the Santa Clara County Superior Court standing order on professionalism. Continued unprofessional conduct is not and will not be tolerated and could lead to sanctions imposed by the Court.

The Court will prepare the order.