HERMAN YEE VS ANN HON

Tentative Rulings

Case Number: KC068890    Hearing Date: July 14, 2020    Dept: J

HEARING DATE: Tuesday, July 14, 2020

NOTICE: OK[1]

RE: Yee v. Hon (KC068890; R/T Case No. KC053203)

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Plaintiff Herman Yee’s MOTION FOR REIMBURSEMENT OF EXPENSES

Responding Party: Defendants, Ann Hon and Charles Lai

Tentative Ruling

Plaintiff Herman Yee’s Motion for Reimbursement of Expenses is DENIED.

Background

Case No. KC053203

Plaintiffs Ann Hon (“Hon”) and Charles Lai (“Lai”) collectively own an undivided two-thirds interest as tenants in common in the property located at 1446 Cabinda Drive, Hacienda Heights, California 91745 (“Hacienda Heights Property”); Herman Yee (“Yee”) owns the remaining undivided one-third interest as a tenant in common in same. Plaintiffs seek a partition by sale of the Hacienda Heights Property. On June 19, 2008, Hon and Lai filed a complaint, asserting causes of action against Defendants Yee, Golden West Savings Association Service Co. (“Golden West”), Wilshire Equities Corporation (“Wilshire”), Title Insurance and Trust Company (“Title Insurance”), Jeffrey C. Tsu (“Tsu”), Asta Funding Acquisition (“Asta”), First Select Corporation (“FSC”), Orange Coast Title Company (“Orange Coast”), Does 1-50 and All Persons Unknown Claiming Any Interest in the Property (“All Persons”) for:

1. Partition of Real Property

On September 26, 2008, Orange Coast filed a Declaration of Non-Monetary Status. On November 6, 2008, Hon and Lai dismissed Title Insurance, FSC, Wilshire and Asta without prejudice. On November 13, 2008, Hon and Lai dismissed Tsu and Golden West without prejudice.

On April 28, 2009, an Order for Publication was filed as to Yee. On June 1, 2009, Proof of Publication was filed as to Yee.

On August 28, 2009, Yee’s default was entered. On September 21, 2009, Hon and Lai dismissed All Persons without prejudice. On September 21, 2009, Interlocutory Judgment for Partition by Sale was filed.

On June 6, 2019, Hon and Lai filed an Application for and Renewal of Judgment, as well as a Memorandum of Costs After Judgment, Acknowledgment of Credit and Declaration of Accrued Interest.

On September 23, 2019, Hon and Lai filed a Notice of Renewal of Judgment. On October 21, 2019, this instant case was deemed related to Case No. KC068890.

On December 30, 2019, the court granted Yee’s motion to vacate judgment; on December 31, 2019, an “Order Granting Defendant Herman Yee’s Motion to Vacate Judgment” was filed.

Case No. KC068890

Yee seeks to partition the Hacienda Heights Property, as well as the property located at 111 E. Emerson Avenue in Monterey Park, California (“Monterey Park Property). Yee has alleged that Hon and Lai committed a fraud upon the court in Case No. KC053203 by claiming that Yee could not be located, that his whereabouts were unknown, and that service upon him could only be made via publication. Yee has alleged that Lai made false statements in a declaration regarding the origins of various liens on the Hacienda Heights Property and that a default was entered against Yee on August 28, 2009. Yee has alleged that despite the court’s entry of default and order for partition, it appears that the Hacienda Heights Property was never sold. Yee also seeks 50% ownership in NCI Apparel, Inc. (“NCI”) and requests an accounting. On November 23, 2016, Yee filed a complaint, asserting causes of action against Hon, Lai, NCI and Does 1-100 for:

1. Partition of Real Property

2. Conversion

3. Accounting

4. Corporate Accounting

5. Violation of Penal Code § 496(a)

6. Constructive Trust

7. Defamation

On March 26, 2018, NCI filed a “Notice of Stay of Proceedings,” advising therein of its Chapter 7 bankruptcy filing. On September 26, 2019, NCI filed an “Amended Notice of Stay of Proceedings.”

On October 21, 2019, the parties stipulated that KC053203 was related to this case.

On February 20, 2020, Yee dismissed NCI, with prejudice. On February 24, 2020, the fourth and seventh causes of action were dismissed with prejudice, per Yee’s counsel’s request. On February 27, 2020, the court granted Hon’s and Lai’s Motion for Judgment Pursuant to Code of Civil Procedure section 631.8 as to the fifth cause of action only and ordered the fifth cause of action dismissed.

Trial closing arguments are set for July 14, 2020.

Legal Standard

“When an application is made to the court or referee to postpone a trial, the payment of the expenses occasioned by the postponement may by imposed, in the discretion of the court or referee, as a condition of granting the same.” (Code Civ. Proc., § 1024 [emphasis added].)

Discussion

Yee moves the court for reimbursement of $5,056.46 in expenses based on Code of Civil Procedure section 1024. Yee claims that Hon made a “surprise production” of a thumb drive consisting of over 900 pages of documents on the eve of trial, even though she and Lai, months prior, declared under penalty of perjury that there were no more documents.

This matter was set for trial on October 21, 2019. On October 15, 2019, Yee filed “Motion in Limine No. 1 for an Order Precluding Defendants from Offering or Referring to Any Evidence Not Previously Produced in Response to Discovery Requests, or from Calling as Witnesses Individuals Not Properly Identified in Response to Discovery Requests,” complaining that on October 3, 2019 (after the closure of discovery) Plaintiff’s counsel received a document entitled Hon’s “Further Response to Plaintiff’s Supplemental Request for Production of Documents, Set One,” which enclosed a flash drive containing approximately 937 pages of documents that Hon previously claimed did not exist under penalty of perjury.

The October 21, 2019 minute order reflects that the trial date was continued, on that date, to February 24, 2020, and that the parties stipulated that experts could be designated and that this matter was related to Case No. KC053203. That day, Hon, Lai and NCI filed a “Notice of Ruling and Court Order,” advising therein, in relevant part, as follows:

“[T]his matter was called for a Final Status Conference and Trial hearing on October 21, 2019 . . . [a]fter hearing from the parties, the Court continued the trial to February 24, 2020, at 8:30 a.m. in Department ‘J’ . . . Further, the Court ordered that this matter and Pomona Superior Court Case No. KC053203, styled Ann Hon and Charles Lai v. Herman Yee, be deemed related. The Court indicated that the defendant’s Motion to Tax and Motion to Vacate in the related matter would both be heard on November 1, 2019, at 8:30 a.m., and that the Court would review the Motion in Limine No. 4 filed by defendants in the instant case and determine whether to hear that Motion in conjunction with the Motion to Vacate on November 1, 2019.

PLEASE TAKE FURTHER NOTICE separately, the Court ordered that discovery in the instant case is re-opened for the limited purpose of a further session of the deposition of Ann Hon, and that the parties may designate expert witnesses . . .”

Yee’s Motion in Limine #1, the October 21, 2019 minute order and the October 21, 2019 Notice of Ruling are devoid of any reference to Code of Civil Procedure section 1024. Yee’s counsel, moreover, attests only that “[o]n the morning of trial call plaintiff requested, in the alternative [i.e., to Plaintiff’s Motion in Limine #1], that the Court reopen discovery for the limited purpose of allowing defendants to be re-deposed about the new documents. That request was granted. The new trial date is February 24, 2020 . . .” (Viltman Decl., ¶13.) Viltman does not represent that Code of Civil Procedure section 1024 was even referenced at any time during the October 21, 2019 appearance.

The court’s continuance of the trial date was in no way conditioned upon Hon and/or Lai paying expenses “occasioned by the postponement;” accordingly, the motion is denied.