Tsai v. Tsai

Filed 10/11/07 Tsai v. Tsai CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Mary Thornton House, Judge. Affirmed.

David Fu and Associates, David D. Fu; Law Offices of David Boros and David Boros for Plaintiff and Appellant.

Hicks Park, James B. Hicks, Gary W. Park and Daniel Wright for Defendants and Respondents.

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This is an appeal from a sanctions order (Code Civ. Proc., 2025.430, 2023.030, subd. (a)) in the amount of $14,792.[1] We affirm, as we explain:

In March 2006, appellant Ta Shen Tsai (whom the parties sometimes refer to as TS Tsai) sued respondent Jimmy Tsai (whom the parties sometimes refer to as Huan Kuei or HK Tsai) and others for quiet title, breach of fiduciary duty, constructive fraud, negligence, and constructive trust. The complaint alleged that appellant, who lives in Taiwan, and respondent, who lives in Los Angeles, are brothers, that appellant is the oldest child in the family and respondent the youngest, of eight, that appellant entrusted respondent with his American investments, and that respondent converted money and real property which belonged to appellant.

Shortly after the complaint was filed, respondent filed a cross-complaint which brought causes of action for breach of fiduciary duty, fraud and deceit, accounting, conversion, negligence, unjust enrichment, constructive trust, and restitution. The cross-complaint alleged that Tsai family assets were collectively managed, principally by appellant, and that appellant had converted funds which belonged to respondent.[2] Discovery commenced.

Appellant's deposition began on June 15, 2006. He was asked, inter alia, whether he was the subject of any criminal investigation in Taiwan, and also asked questions about property he owned, his use of respondent's chops, the documents which had been requested in the notice to produce, and other subjects. In almost every instance, he refused to answer, asserting the Fifth Amendment to the United States Constitution. The deposition, which was at points rather acrimonious, adjourned on June 16, with an agreement to resume in July.

On June 23, appellant moved ex parte for a protective order, asking that the transcript of the deposition be sealed and that any copies sent to authorities in Taiwan be retrieved. The ex parte application was denied, and the motion was set for hearing on July 25.

On June 26, respondent moved for an order compelling appellant to answer questions without asserting the Fifth Amendment and to produce documents, citing United States v. Balsys (1998) 524 U.S. 666, 118 S.Ct. 2218, 141 L.Ed.2d 575, which held that "concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause." (Id. at p. 669.) In support of the motion, respondent set forth appellant's 300 assertions of the Fifth Amendment privilege during the deposition. He also presented the trial court with a declaration of counsel to the effect that appellant failed to produce documents at the deposition, and on meet-and-confer efforts: at appellant's request, respondent had agreed to continue the deposition, originally set for April 21 for two months. Further, during the deposition, counsel told appellant and his counsel that if appellant continued to invoke the Fifth Amendment, there would be a motion to compel. Meet-and-confer attempts during the deposition and on June 23 were unsuccessful.

Respondent sought sanctions in the amount of $14,792, the amount of his attorney fees in connection with the deposition and motion to compel.

In response, appellant also submitted the declaration of counsel: counsel did not know of the pending criminal proceedings until questions were asked at the deposition. At the deposition, respondent's counsel "refused" to let appellant and counsel confer.[3] There were meet-and-confer discussions on June 23, after the ex parte hearing. During those discussions, appellant's counsel said that he could not meaningfully discuss the matter until he had conferred with Taiwan counsel, so that discussions could resume on July 5. He believed that the conversations were still open when he received the motion to compel, which respondent's counsel began to draft immediately after the deposition concluded. Appellant's counsel believed that the motion to compel could have been avoided if respondent had agreed to continue the deposition until after the criminal proceeding in Taiwan was concluded, something which counsel believed would "undoubtedly occur shortly."

On July 19, the court ordered appellant to answer deposition questions and to produce the documents requested. The court found, "Plaintiff may not refuse to testify as to relevant facts in a civil action he has filed based on the privilege against self-incrimination," citing Newson v. City of Oakland (1974) 37 Cal.App.3d 1050.

Also on July 19, appellant's counsel filed a supplemental declaration to the effect that in response to his declaration, respondent's counsel made another meet and confer effort on July 6. In email correspondence, appellant offered to answer the questions previously posed without Fifth Amendment objection, at a resumed deposition in mid-August. Further, he would take the motion for a protective order off calendar. (He later did so.) Respondent's counsel agreed to the date, but also asked that appellant agree not to take discovery in the meantime, and agree not to sell or encumber or transfer any assets before September 30. Appellant refused the offer.

On July 21, 2006, the trial court completed its ruling on respondent's motion by ordering appellant and his counsel to pay $14,792 in sanctions, finding that "more than sufficient meet and confer efforts were made to warrant the imposition of sanctions. As was pointed out in the hearing on the motion, the persistent and improper use of the 5th [A]mendment privilege to refuse to answer questions invoked by plaintiff in this action was without justification." The court also found that the attorney hours expended were reasonable.

1. Mootness

We begin our discussion with respondent's contention that the appeal is moot because appellant has already paid the sanctions. We do not find the contention meritorious. "Compulsory payment of a judgment by an appellant under execution or other coercion does not destroy his right to appeal from that judgment. (Reitano v. Yankwich, 38 Cal.2d 1, 3.) Furthermore, even voluntary payment of a judgment by an appellant does not have this effect unless the payment is by way of compromise or accompanied by an agreement not to take or prosecute an appeal. (Estate of Merrill, 29 Cal.2d 520, 524.)" (Wisniewski v. Clary (1975) 46 Cal.App.3d 499, 502 [appeal lies where appellant paid sanctions ordered for failure to attend a mandatory settlement conference, on pain of dismissal].) Here, appellant and his counsel were not at liberty to violate the court's order, even if they believed it to be incorrect. (Espinoza v. Classic Pizza, Inc. (2003) 114 Cal.App.4th 968, 976.) Payment of the sanctions did not moot the appeal.

Respondent relies on In re Marriage of Fink (1979) 25 Cal.3d 877, but the case does not support his position. In Fink, the trial court awarded Wife a lien on Husband's property to secure his payment of court-ordered attorney fees. Husband contended that the order regarding the lien was erroneous because it directly affected title to the property. The Supreme Court declined to reach the contention, finding that because Husband had already paid the fees, "the issue of the propriety of the lien is moot." (Id. at p. 889.) The court did not hold that payment of the fees would have made a challenge to the fee order moot, and that is the analogy here.

2. Substantial justification

We now turn to appellant's arguments, the first of which is the court erred in finding the opposition to the motion to compel was without substantial justification. (Code Civ. Proc., 2025.430.) Factually, appellant argues that respondent made no meaningful effort to meet and confer to resolve the dispute, and that it was unreasonable for respondent to insist on engaging in "this line of questioning," when all appellant sought was an opportunity to confer with counsel in Taiwan. He also argues that given that discovery had just started, there was no urgency.

A "trial court has wide discretion to order discovery and broad powers to enforce those orders. Although such powers are not unlimited, they are presumed correct and will not be disturbed in the absence of an abuse of discretion." (Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 175.)

The facts here do not add up to an abuse of discretion. Respondent's counsel did make meet-and-confer efforts, during the deposition, and on June 23, and, at appellant's suggestion, on July 6. Appellant's counsel might have been taken by surprise at the deposition, but respondent cannot be faulted for appellant's failure to tell his counsel about the pending criminal proceedings. Nor can we see that respondent can be faulted for wishing to engage in "this line of questioning." The deposition questions often concerned appellant's businesses and transfer of property, and the discovery which respondent sought. Nothing in the record indicates that these were other than legitimate questions.

Further -- and this is at the heart of this case -- the motion to compel was necessitated by appellant's assertion of a privilege against self-incrimination which he did not have. United States v. Balsys, supra, 524 U.S. 666 so held, finding that the Fifth Amendment does not apply to protect a litigant from prosecution in another country. (Id. at p. 670.) Contrary to appellant's argument, the holding is not dependent on the law of the foreign jurisdiction, that is, whether it has provisions parallel to the Fifth Amendment. Instead, Balsys reached its holding after analysis of the Constitutional language, the history of the privilege, previous Supreme Court jurisprudence, and the immunity doctrine -- not the law of the foreign jurisdiction.

Appellant argues that Klein v. Superior Court (1988) 198 Cal.App.3d 894 holds to the contrary, and, because it is California law, is controlling. There are a number of problems with the argument, the most important of which is that Federal law, not California law, is controlling on the assertion of a privilege under the Federal constitution. The other difficulty is that Klein pre-dates Balsys and relied on pre-Balsys case law, United Statesv.(Under Seal) (4th Cir. 1986) 794 F.2d 920.

In Klein, the question concerning the scope of the Fifth Amendment arose as part of a discussion of defendants' motion for stay on ground of forum non conveniens. Klein noted that, "A first impression issue in this state is whether the privilege is available to prevent incrimination under the law of a foreign jurisdiction. The federal decisions conflict on this issue. No United States Supreme Court decision squarely holds either way . . . ." (Id. at p. 904.) Then, citing Under Seal, Klein held that, "A recent appellate federal decision notes the conflict among the cases and holds the privilege is unavailable to protect from foreign incrimination unless the foreign sovereign and the sovereign using the testimony both are restrained from compelling self-incrimination." (Ibid.) Klein followed Under Seal, but undoubtedly would not do so today.

Appellant's reliance on Foothill Properties v. Lyon/Copley Corona Associates (1996) 46 Cal.App.4th 1542 is thus misplaced. In that case, the sanctioned party had "valid claim of a right to a protective order regarding the unproduced documents," and thus "had substantial justification, as a matter of law, for withholding them until the motion for the protective order was determined, and for opposing the motion to compel." That is not true here.

3. Appellant's other contentions

Appellant makes two other arguments. The first is that the questions asked of him during the deposition did not relate to the complaint, so that Newson v. City of Oakland, supra, 37 Cal.App.3d 1050 did not apply, and the second is that the trial court should have fashioned a less-restrictive remedy by continuing the trial until after the criminal proceedings in Taiwan were concluded. Both contentions seem to be primarily, if not exclusively, directed at the order compelling deposition testimony and the production of documents, which, as we have noted, is not an appealable order. We consider them insofar as they are directed at the order for monetary sanctions.

Newson is one of several cases which hold that a plaintiff may not have his cake and eat it, by asserting the privilege to prevent discovery on an issue he himself has put into controversy. (Id. at p. 1055, see Hartbrodt v. Burke, supra, 42 Cal.App.4th at p. 174, and the cases collected therein.) Appellant's argument is that Newson applies only where the discovery is relevant to the issue the party has put into controversy, and that the questions he was asked did not relate to the complaint, but only to the foreign prosecution. This argument, too, runs afoul of Balsys. Appellant's Fifth Amendment rights were not at issue, and the limits of the Newson rule simply make no difference here.

The same applies to appellant's next argument, that where the constitutional right against self-incrimination is at stake, the court should fashion a remedy, including a stay of proceedings, to protect that right. He cites in support Wehling v. Columbia Broadcasting System (5th Cir. 1979) 608 F.2d 1084 and McMullen v. Bay Ship Management (3d Cir. 2003) 335 F.3d 215. We cannot see that either case applies where there is no constitutional right at issue. Further, we cannot see that appellant asked the trial court for a continuance. We thus cannot fault that court for having failed to grant one.

Disposition

The order is affirmed. Respondent to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

WE CONCUR:

TURNER, P. J.

KRIEGLER, J.

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[1] Appellant also purports to appeal from an order compelling him to answer questions at his deposition, and to produce documents. That is not an appealable order (Kraus v. Davis (1970) 6 Cal.App.3d 484, Bishop v. Merging Capital, Inc. (1996) 49 Cal.App.4th 1803) and we do not consider his contentions on this point.

[2] Appellant has asked us to take judicial notice of respondent's third and fourth amended cross-complaints, and the trial court rulings sustaining demurrers to those complaints. The request is denied. The materials are not relevant to any issues on appeal. Appellant's request that we take judicial notice of a section of the Taiwanese criminal code is denied for the same reason.

[3] Despite respondent's counsel's objections, appellant and his counsel did, in fact, briefly leave the deposition to confer.