R Scott Turicchi et al vs Randall Quaid et al

Case Number

19CV06268

Case Type

Hearing Date / Time

Mon, 09/25/2023 - 10:00

Nature of Proceedings

Motion Stay Deposition of Dennis Quaid; Quash Depo Notice; Motion: Compel Compliance by the Quaids with the Court's Order that they Appear and Testify at their Depositions

Tentative Ruling

HEARING:    Motion by the Turicchis for an order compelling compliance with the court’s order that the Quaids appear and testify at their depositions

                        Motion by the Quaids to stay the deposition of Dennis Quaid, quash the deposition notice, and issue a protective order.

           

ATTORNEYS:          Craig S. Granet / Claire K. Mitchell of Rimon, P.C. and Andrew W. Zepeda of Lurie, Zepeda, Schmalz, Hogan & Martin for plaintiffs R. Scott Turicchi and Lannette C. Turicchi

                                    Grant Puleo / Karen L. Alexander / Daniel M. Doft of Duane Morris LLP for defendants Randy Quaid and Evgenia Quaid

                       

TENTATIVE RULING:  The Court will permit the depositions of Randy Quaid, Evgenia Quaid, and Dennis Quaid, to take place, under the conditions more fully articulated below.

Background: This action was commenced on November 25, 2019, by the filing of the original complaint by plaintiffs R. Scott Turicchi and Lannette C. Turicchi. At that time, the complaint alleged a cause of action to quiet title in plaintiffs in property located at 1355 East Mountain Drive in Santa Barbara, and for declaratory relief that defendants Randall Quaid and Evgenia Quaid have no interest in that property. It alleged that the Turicchis obtained title to the property pursuant to a Grant Deed recorded on August 21, 2007, and that the Quaids claimed an interest in the property.

The Quaids answered the cross-complaint, in pro per, on October 7, 2020.

The Turicchis filed their operative First Amended Complaint (FAC) on February 14, 2022. It continued to allege causes of action to quiet title and for declaratory relief, and added a cause of action for slander of title.

On January 26, 2023, the trial court issued an order in response to an ex parte application pursued by the Quaids. Among other things, the court ordered that the deposition of R. Scott Turicchi be taken by the Quaids on February 10, 2023, that the deposition of Randy Quaid be taken by the Turicchis on February 13, 2023, and that the deposition of Evgenia Quaid be taken by the Turicchis on February 14, 2023, all depositions to be taken via Zoom.

The deposition of R. Scott Turicchi took place as scheduled, and spanned the seven hours permitted by the Code of Civil Procedure.

On February 13, 2023, Randy Quaid appeared for his deposition. Mr. Quaid refused to answer any questions at all, including a request that he state his name, based upon an assertion of his Fifth Amendment privilege. In response to a question whether he was going to assert his Fifth Amendment privilege to every question, Mr. Quaid again refused to answer and asserted his Fifth Amendment privilege.

On February 14, 2023, Evgenia Quaid appeared for her deposition. Ms. Quaid refused to answer any questions at all, including a request that she state her name, based upon an assertion of her Fifth Amendment privilege. In response to a question whether she was going to assert her Fifth Amendment privilege to every question, Ms. Quaid again refused to answer and asserted her Fifth Amendment privilege.

After hearing on March 27, 2023, the Turicchis’ first and second causes of action to quiet title and for declaratory relief, as alleged in their FAC, were summarily adjudicated in their favor. This left only the cause of action for slander of title actively pending against the Quaids.

The Quaids’ current counsel, Grant Puleo, substituted into the action on their behalf as defendants on April 4, 2023.

After counsel Puleo substituted in on the Quaids’ behalf, counsel for the Turicchis contacted him to discuss his intention to file motions to compel the Quaids to appear for depositions, arising from what he believed to be their bad faith assertion of their Fifth Amendment privileges in refusing to answer any questions. He asserts that the Quaids’ counsel stated he would advise them not to assert their Fifth Amendment privilege at deposition. Multiple extensions of the deadline to file the motions to compel were agreed to by the attorneys, ultimately up to August 14, 2023, while the parties discussed possible dates for the depositions. In a mid-July, 2023 conversation, the Quaids’ counsel indicated that the Quaids might still take the Fifth Amendment in response to some questions, against his advice. Counsel for the Quaids suggested a single deposition date for both of the Quaids, seven weeks later; counsel for the Turicchis responded that he needed a full day for each, and did not want to wait that long. When the Quaids’ counsel provided no information with respect to his clients’ response, the Turicchis’ counsel advised that he was filing the motion to compel.

The Quaids maintained a series of cross-complaints throughout much of the pendency of this action. Their most recent iteration, the Fifth Amended Cross-Complaint (5ACC), was filed through counsel on May 3, 2023, and alleged twenty-two causes of action, not just back against the Turicchis, but also against Lawyers Title Company, Fidelity National Title Insurance Company, Bruce Berman, and Nancy Goliger Berman. When they dismissed the 5ACC on July 19, 2023, all cross-defendants other than the Turicchis were dismissed from the case.

On August 2, 2023, the Turicchis’ counsel served, via email, a Notice of Taking of Deposition of Dennis Quaid upon the Quaids’ counsel, setting the deposition in Nashville, Tennessee on August 14, 2023. On August 4, 2023, the Quaids’ counsel advised that he was unavailable for a deposition on August 14, had no prior notice of an out-of-state deposition of a non-party witness, and had a hearing on that date. On August 7, 2023, the Turicchis’ counsel advised that he had learned that Dennis Quaid would be in the LA area on both August 15 and August 16, and he was willing to reschedule the deposition to one of those dates, at a location in Los Angeles, and asked which date the Quaids’ counsel preferred. The Quaids’ counsel responded that he was free on August 15, but asked for clarification of the relevance of Dennis Quaid’s testimony, and for confirmation that the Turicchis would produce “all relevant documents” no less than 48 hours before the deposition. In response, the Turicchis’ counsel sent an email that the Dennis Quaid deposition was being rescheduled for August 15, and set forth the time and place of the deposition. Still on August 7, 2023, the Quaids’ counsel advised that the Quaids were not available on August 15, and the deposition therefore could not go forward on that date after all. On August 8, 2023, the Turicchis’ counsel advised that he intended to proceed with the deposition on August 15.

On the evening of August 10, 2023, the Quaids’ counsel served Objections to the August 15 deposition, via email. They contend that (1) the original Notice did not comply with Code of Civil Procedure section 2025.270(a), in that it was not properly served at least 10 days prior to the deposition date, (2) no notice was ever served with respect to an August 15 deposition in Los Angeles, and the Quaids’ promptly informed counsel that Randy Quaid was unavailable on that date, (3) even had proper notice of the August 15 deposition been served, it would have been untimely, and any resulting testimony will be inadmissible at trial, (4) third party discovery is premature and the parties are still in the early stages of taking party discovery; noticing parties have not complied with outstanding discovery that requests information that will be necessary to proceed with Dennis Quaid’s deposition; the Quaids have requested to depose L. Turicchi, but she has not yet been made available, and the Dennis Quaid deposition should not go forward until after all party depositions have been completed; (5) the deposition is not relevant to the remaining cause of action, is not likely to lead to the discovery of admissible evidence, and is noticed to harass the Quaids and violate their privacy rights.

The Quaids’ transmission email asked for an opportunity to meet and confer by video conference or phone call to discuss the defects. The Turicchis’ responded on August 11 by noting their disagreement on the issues, including that counsel had not withdrawn the Notice of Taking Deposition of Dennis Quaid.

Motion to compel compliance with court order compelling Quaids’ to appear for deposition: On August 11, 2023, the Turicchis filed a motion to compel compliance by the Quaids with the court’s order that they appear and testify at their depositions, seeking $7,000 in sanctions. The motion is supported by the declaration of attorney Craig S. Granet, who set forth the deposition history recited above, authenticating supporting documentation, and attaching a copy of the Quaids’ joint declaration, filed on February 27, 2023.

 

The motion seeks orders compelling each of the Quaids to comply with the court’s January 26, 2023, order that their depositions be taken, compelling them to produce, without objection, all documents required to be produced in the Notices of Taking Depositions, and ordering them not to assert the Fifth Amendment Privilege and to answer all questions asked other than those to which the deponents are instructed by their attorney not to answer on grounds other than Fifth Amendment privilege. Alternatively, if either deponent is permitted to assert the Fifth Amendment Privilege and does so, the motion seeks orders precluding them from testifying at trial, citing Brown v. United States (1958) 356 U.S. 148, 155-156, and People v. Withers (1946) 73 Cal.App.2d 58, 60, among other cases. Finally, the motion seeks $7,000 in sanctions. The motion argues that the Quaids have waived their Fifth Amendment privilege, raised because there are criminal proceedings pending against them, because they have submitted hundreds of pages of declarations and other sworn testimony in this action, detailing their version of the facts of the case. One such declaration is attached to the supporting declaration of attorney Granet. The motion seeks sanctions of $7000 (10 hours @ $700/hour).

 

Opposition The Quaids have opposed the motion, contending that they fully complied with the court’s prior order by appearing for their depositions on the specified dates, and asserting that the Turicchis are not entitled to a second deposition, citing Code of Civil Procedure section 2025.610(a). They assert that the Turicchis made a strategic mistake when they chose not to ask any substantive questions of the Quaids, and elected to terminate the deposition after only a few questions, asserting that the proper procedure to challenge invocation of the Fifth Amendment privilege in a deposition is for the court to determine, on a question-by-question basis, whether the Fifth Amendment assertion was proper, citing Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 305. They argue that it is improper to rule on the propriety of the assertion until the questions are posed at deposition, and because the Turicchis’ counsel did not do so, there can be no determination that they have waived the privilege. The Quaids argue further that the charges against them are inextricably intertwined with the civil issues in this case, and to the extent the Fifth Amendment disputes are before the court at this time, they should be denied. They assert that the Turicchis did not meet and confer prior to bringing the motion, and had thy just agreed to what the Quaids asked with respect to the Lannette Turicchi deposition, they all could have been taken by now. They argue that the issue of whether the Quaids should be precluded from testifying at trial is premature, and they should not suffer penalty for asserting their Fifth Amendment privilege. Finally, the Quaids seek sanctions of $4,800 for opposing the motion. (4 hours at $880/hour, and 2.5 hours at $525/hour).

 

Reply The Quaids argue they complied with the court order by showing up for their deposition and refusing to answer any questions, but at the time the court ordered the taking of the depositions, the Quaids knew they were fugitives from pending criminal charges, yet agreed to the deposition dates—apparently with no intention of providing testimony—in order to be able to first take R. Scott Turicchi’s deposition. None of the questions posed to them implicated their Fifth Amendment privilege, yet they interposed it to every question, including whether they intended to assert the privilege to every question, and now contend counsel should have spent two full days asking every question he wanted to ask them to create a record. Even one of the cases the Quaids’ cited holds that a blanket refusal to testify is unacceptable.

 

Further, the Turicchis assert that the one-deposition rule does not preclude the court from ordering the Quaids to now testify, particularly given the “charade” they played at the deposition. They contend further the Quaids long ago waived any Fifth Amendment privilege by providing lengthy declarations and verified pleadings. They cannot set forth their version and then refused to be examined on it. If they are ordered to testify at deposition, and continue to raise the Fifth Amendment privilege, they should not be permitted to testify at trial with respect to any such issue. They assert they are not now asking for an order precluding trial testimony, and only an order that to the extent they claim the Fifth Amendment as to any issues, they be precluded form testifying as to those issues. While the court could stay the civil case until the criminal case is resolved, as the Quaids’ suggested, the criminal case has been pending for 13 years and has not been resolved because the Quaids are fugitives from justice and will not subject themselves to the jurisdiction of the California courts, and a stay would be unjust. The Turicchis assert they adequately met and conferred for months prior to filing the motion, and conclude that an award of sanctions against the Quaids is appropriate.

 

Quaid objections On September 20, 2023, the Quaids submitted evidentiary objections to the Turicchis’ reply.

Quaids’ motion to stay deposition of Dennis Quaid and to quash deposition notice, and motion for protective order: On August 14, 2023, the Quaids filed the current motion to preclude the Turicchis from taking the deposition of Dennis Quaid, the estranged brother of defendant Randy Quaid. They contend the Turicchis have refused to explain why the deposition is relevant to the remaining cause of action, and contend the Turicchis only want to take the deposition to air the family’s dirty laundry, invade the Quaids’ privacy, and harass them. They contend that even if proper, the notice is premature, since the Turicchis have refused to produce documentation that they agreed to provide before Dennis Quaid’s deposition, have not responded to the Quaids’ written discovery regarding the slander of title claim, and Lannette Turicchi has not yet been deposed. They contend that no proper notice was ever served regarding a Los Angeles deposition on August 15, that any notice provided was untimely, and that Randy Quaid was unavailable. The motion seeks sanctions of “roughly” $13,350, consisting of an unspecified number of hours at $880/hour for attorney Alexander, and $900/hour for attorney Puleo.

Opposition The Turicchis opposed by stating that there is no basis to stay the Dennis Quaid deposition, to quash the deposition notice, or for a protective order regarding the deposition. While the Quaids contend that Dennis Quaid has no information about the case, in fact he loaned Randy Quaid and Evgenia Quaid money to buy the East Mountain Drive property in 1989, and when they sold it in 1992, they repaid the loan to him in full, and the Deed of Trust which had secured his loan was reconveyed. The Turicchis counsel states that he had been working for weeks with Dennis Quaid’s attorney to get a date when he would be available for deposition, and was originally informed that Dennis Quaid would be available on August 14 in Nashville, where he resides, so he noticed the deposition for that date and place.

In response, the Quaids’ attorney, Mr. Puleo, first objected because attorney Granet had not cleared the date with him first, but Puleo had himself set a number of depositions without clearing dates with Mr. Granet, and there is no indication why Ms. Alexander could not have attended the deposition. Before that issue could be addressed, Mr. Granet was informed that Dennis Quaid was no longer available because he would be flying to Los Angeles, but would be available in LA on August 15-16, so Granet informed Puleo of that and asked which day he preferred. Puleo then indicated he would prefer August 15, and arrangements were made between the two to accommodate that. Puleo then objected that Randy Quaid was not available, with no reason given, but in fact Randy Quaid made 5 separate post on X (formerly known as Twitter) at 5:50 a.m., 8:36 a.m., 11:20 a.m., 4:11 p.m., and 5:21 p.m. Pacific Time on August 15—the middle post at precisely the time scheduled for the deposition.

The Turicchis contend the court should not impose sanctions on them, but rather should impose sanctions against the Quaids with respect to this motion. First, the $13,350 amount they seek is unreasonable for a 7-page memorandum with few citations. Further, the motion was made to interfere with legitimate discovery. The Turicchis seek $4800 in sanctions against the Quaids.

Reply The Quaids contend the Turicchis have failed to establish the Dennis Quaid deposition is relevant and not a “stunt.” Their assertion of what he would testify to relates only to their dismissed 5ACC, and not slander of title. The Quaids believe Dennis’s testimony would shoe Dennis was not his own business manager during the time, that the loan in question was made to Randy Quaid’s former wife and secured by their former home on Floyd Terrace, and that loan was repaid and the Deed of Trust was reconveyed in 1992. His ability to recall may be impacted by his drug abuse during the time, when he is believed to have been in rehab, and he would have no personal knowledge of any relevant facts. It should not go forward, but if it does, it should be on a mutually agreeable date. The Quaids further contend that the Turicchis never followed procedures for noticing a non-party deposition. They contend the Turicchis made scheduling more difficult than they did, and assert the Turicchis’ scheduling complaints “ring hollow.” If they wanted the deposition to go forward as they scheduled it, they should have coordinated dates with the Quaids in advance. They conclude they are entitled to sanctions of the full $13,350, consisting of 11.5 hours for attorney Alexander at $880/hour, “more than” 5 hours for attorney Puleo at $900/hour, and 4.0 hours for attorney Doft at $525/hour, plus the $2,500 cost of the videographer they retained to attend and record the deposition, which they had to pay because the deposition was canceled with less than 24 hours.

ANALYSIS: Motion to compel compliance with court order to appear and testify at deposition

The Court will grant the motion to compel in part, and deny the motion in part, as outlined herein.

The Court finds that the conduct of the Quaids in the February 2023 depositions, in refusing to answer questions that could not possibly incriminate them by asserting their Fifth Amendment privilege, did not comply with this Court’s January 26, 2023 order requiring that their depositions be taken. The Court will therefore again order that the depositions of both Randy Quaid and Evgenia Quaid be taken, on a date and at a time and place (including via Zoom) that the parties shall determine through good faith meet-and-confer efforts of the parties. Once that date, time, and place has been determined, no further Notices of Deposition need be served by the Turicchis; the further depositions are being conducted pursuant to this Court’s order, after the Quaids failed to participate in good faith in the prior deposition.

Randy Quaid and Evgenia Quaid shall be deposed on different days, and may be deposed up to the seven hours permitted by statute. Any further deposition shall not be required without further court order.

Since the motion before the Court is one to compel compliance with its prior order, and is not a motion to compel responses to specific questions, the Court will not at this point in time make any determination whether the Quaids have waived their Fifth Amendment rights through their prior conduct in this action. The Court notes that, up until their current counsel substituted into this action on their behalf on April 4, 2023, less than six months ago, the Quaids have been in pro per, and have apparently conducted their defense of this action, and the prosecution of their various cross-complaints, without having the advice of counsel. That fact will play some role—albeit not necessarily a determinative one—in any determination this Court may ultimately make with respect to whether their conduct during the period they were self-represented acted to waive their Fifth Amendment rights.

The Court will not preclude the Quaids from asserting their Fifth Amendment rights at the depositions. The Turicchis are free to challenge, through appropriate motion and on an appropriate showing, the propriety of the Quaids’ assertion of that privilege, should they do so at deposition. The Court will defer any determination whether the Quaids will be prohibited from testifying at trial as to any specific facts or issues about which they may assert their Fifth Amendment privilege, until the time of trial.

While the Quaids’ opposition to the motion notes, in footnote 7, that the court in Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, found that the solution in that case was to stay the civil case until the potential for criminal charges resolved, and urges this Court to consider that option, no motion for such a stay is not currently before the Court, and does not impact this Court’s evaluation of this motion. Further, as noted by the Turicchis, it is true that the reason the criminal charges have not resolved after 13 years is because the Quaids absconded from the jurisdiction; the charges remain pending given their absence. Consequently, even if such a motion to stay the civil case pending resolution of the criminal cases were to be properly presented to this Court, such a motion would not be granted in the absence of a particularly strong showing of the need for and propriety of such a stay.

Motion to stay deposition of Dennis Quaid, quash deposition notice, and for protective order Much of the motion has been mooted, including the contentions regarding a deficient deposition notice and contentions about the deposition dates, after the filing of the motion had the effect of precluding the deposition from going forward on any of the proferred dates.

With respect to the remainder of the motion, the Court will permit the Turicchis to take the deposition of Dennis Quaid. While the Quaids dispute that he has relevant knowledge, and in their reply attempted to explain away the events which the Turicchis in their opposition contended he would testify to, and appeared to contend that any testimony he would give would be unreliable given his alleged drug use during the relevant period, those “explanations” only reinforces that the deposition should be permitted to take place. If Dennis Quaid has relevant testimony, it can be obtained through deposition. Further, the Quaids will have a full opportunity to also examine Dennis Quaid on the events at issue, including to clarify his recollection of the events, and clarify the precise property with respect to which Dennis Quaid loaned Randy Quaid money to purchase property, and obtained a Deed of Trust which was conveyed when the loan was repaid.

The respective counsel for the Turicchis and for the Quaids shall work together in good faith, along with Dennis Quaid or his attorney or other representative who can advise these parties with respect to his availability (in terms of date, place, and time) for deposition. Once an acceptable date, place, and time of the deposition has been determined by the parties and the deponent (and/or his representative), counsel for the Turicchis shall comply with the statutory provisions for obtaining a non-party deposition, and provide formal notice to the Quaids with respect to the taking of the deposition. Given that Dennis Quaid’s purported knowledge of issues relevant to this action is fairly limited, the deposition shall be concluded expeditiously. Under no circumstances shall either counsel be permitted to question Dennis Quaid for more than 2 hours.

Sanctions Each side seeks sanctions against the other with respect to each motion and opposition. The Court finds that neither side has acted entirely with substantial justification with respect to either motion, and will deny all sanction requests for both motions.