R Scott Turicchi et al vs Randy Quaid et al

Case Number

19CV06268

Case Type

Hearing Date / Time

Mon, 07/22/2024 - 10:00

Nature of Proceedings

1) Motion to Preclude Testimony of Randall Quaid at Trial; 2) Motion: Quash Subpoena; 3) Motion: Strike and Order for Leave to File Second Amended Answer

Tentative Ruling

R. Scott Turicchi, et al., v. Randy Quaid, et al.

Case No. 19CV06268

Hearing Date:         7/22/2024                                                    

HEARINGS: Quaids’ motion to quash subpoena duces tecum issued by the Turicchis to YouTube.

                        Quaids’ motion to strike unauthorized filings, for sanctions, and for leave to file second amended answer.

                        Turicchis’ motion to preclude Randy Quaid from testifying at trial

           

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

                                    Randy Quaid and Evgenia Quaid are in pro per

                       

TENTATIVE RULINGS:  

For the reasons more fully articulated below:

(1) The motion to quash the subpoena duces tecum issued to YouTube will be denied.

(2) The motion to strike unauthorized findings, for sanctions, and for leave to file second amended answer, will be granted in part, denied in part, and modified in part, as outlined below.

(3) The motion to preclude Randy Quaid from testifying at trial will be granted, in the manner outlined herein. If the trial goes forward as currently scheduled, the motion will be granted and the testimony of Randy Quaid precluded. For the reasons set forth below, if the trial date is continued for reasons unrelated to this motion, Mr. Quaid will be given an opportunity to choose to submit to a further deposition and respond to questions without asserting his Fifth Amendment privilege. If he does so, he will be permitted to testify at trial. If he does not opt to undergo such deposition, or if he undergoes the deposition but continues to assert his Fifth Amendment privilege in refusing to answer relevant questions, he will be precluded from testifying at the ultimate trial.

MOTIONS BEFORE THE COURT:

Quaid motion to quash records subpoena The Quaids filed a motion to quash a records subpoena served by the Turicchis. The motion does not attach the subpoena, does not quote the document request it contained, and does not identify the person or entity to whom it was directed. The proof of service attached to the motion shows electronic service of the motion only on the Turicchis’ attorneys.

The motion does note that the subpoena south information associated with usernames “such as @jknightdaboo and @specialagentnoble77.” It contends that the Quaids have had no personal or any other kind of interaction, association, ore relationship “with these particular individuals or with any others targeted by this subpoena.” The motion contends that the subpoena is a misuse of the discovery process, in seeking records and personal details outside of the statute of limitations.

The motion contends the subpoena demands “extensive personal details from third party- internet users” with no involvement in the case, in seeking to uncover the identities, birthdays, biographical information, locations, and IP addresses of the individuals with those usernames, who are neither parties nor witnesses in this dispute. The motion argues that the data is irrelevant, and invades third party privacy rights, and would have a chilling effect on free expression by deterring users from engaging in such protected speech. It further contends the demands are not narrowly tailored to serve a substantial government interest.

The motion is supported by the declaration of Evgenia Quaid, the substance of which is limited to the pre-motion meet and confer process, and contends that the Turicchis refused to withdraw the subpoena, in spite of failing to provide any substantive counterarguments to address the issues raised.

Opposition: The Turicchis have opposed the motion, have clarified that their records subpoena was served upon YouTube, and attached a copy of the subpoena. They characterize it as seeking records from YouTube related to publicly available streaming videos featuring the Quaids slandering the Turicchis’ title to the property, and seeks the records necessary to verify that the Quaids posted the videos.

The Turicchis contend that while the Quaids expressed their objections via email, they failed to meet and confer via telephone, even though they had arranged to do so at 2:30 p.m. on May 13, 2024 (when they failed to call, as planned). They further never responded to or offered any alternative to the Turicchis’ offer to withdraw the subpoena if the Quaids would stipulate that they posted the videos at issue, failed to respond to counsel’s inquiry whether they wanted to reschedule the meet and confer call, and simply filed the motion to quash without further meet and confer.

The opposition confirms that the subpoena seeks only verification of the username and posting date associated with four videos (identified through website link) available on YouTube and featuring only the Quaids, and the account information (name, birthdate, and IP address) for the accounts which posted the videos (@JKNIGHTDAHBOO and @SpecialAgentNoble77). It contends the requests are narrowly tailored and only the deponent—YouTube—can object on grounds of burden, since YouTube’s production places no burden on the Quaids. The documents sought are directly relevant to the slander of title claim, since the videos feature the Quaids slandering the Turicchis’ title to the property, and claiming that the Quaids are lawful owners of the property. In one video, Randy Quaid declares “Bruce Berman stole my house.” The Turicchis purchased the home from Bruce Berman.

While the videos indicate that the Quaids filmed themselves while slandering the Turicchis’ title, and then posted the videos, they now deny doing so, and claim that the YouTube users who posted the videos of them are neither parties nor witnesses to the dispute. With respect to the claim that the subpoena seeks records outside the statute of limitations for slander of title claims, the Turicchis’ opposition contends that (1) the Quaids waived the statute of limitations defense by failing to raise it in any of their answers, (2) the statute of limitations does not run from the date of the filing of the FAC, but from the filing of the original complaint, and (3) the Court found in ruling on the Quaids’ motion for summary judgment that the relevant date is not the date of publication, but the date that the Turicchis could reasonably be expected to discovery the existence of the claim. Consequently, the history of the postings is relevant to that issue. The Turicchis note that relevance is a broad standard where discovery is concerned, and dispute regarding relevancy should generally be resolved in favor of permitting discovery.

The Turicchis assert that the relevance of the records sought outweighs any privacy concerns, noting the limited information sought. The only arguably private information sought is the birthdate and IP address of the users who posted the video. To the extent YouTube has the information, it would have been provided by the user, after agreeing to the privacy and terms of use policies. To the extent that an individual posted content regarding the Turicchis’ property without the Turicchis’ permission, the poster cannot have a high expectation of privacy in response to a request made by the Turicchis. The substance of the requests are quite limited, and expressly include any personal financial information.

Finally, the Turicchis contends that the motion was not reasonably made, in that the Quaids failed to meet and confer with the Turicchis’ counsel, in spite of making arrangements to do so. The Turicchis’ counsel expressed a willingness to consider the Quaids’ objections and potentially offer a narrowing of the subpoena to address their concerns, but the Quaids instead skipped the scheduled phone call, ignored counsel’s request to reschedule, ignored counsel’s offer to withdraw the subpoena in exchange for a factual stipulation and failed to offer any alternative solution, simply filing the motion. The Turicchis therefore contend they are entitled to sanctions of $2,250.00 for the attorneys’ fees and expenses incurred in having to respond to the motion.

The opposition is supported by the declaration of Turicchi attorney Claire Mitchell, who provided information regarding the nature and scope of the meet and confer process, authenticated and attached the emails exchanged with the Quaids, Mrs. Quaid’s failure to call at the time they had scheduled, and providing a factual basis for the amount of the sanction request.

Reply: In reply, the Quaids argue that the Turicchis’ case lacks merit since void title cannot be slandered, and the Turicchis have failed to present any evidence that the Quaids slandered their title. They reassert that they have “no personal or professional relationship to the videos posted by the unwitting targets whose privacy the Turicchis are now attempting to invade.” They contend that the Turicchis cannot be trusted to make it clear to these “targeted victims” that it is the Turicchis and not the Quaids who seek to violate their First Amendment rights. Finally, they contend that the Turicchis failed to engage in a meaningful meet and confer process, in failing to make any genuine effort to resolve the dispute, and ignoring multiple offers to meet and confer, “instead chose to creat [sic] a false record of invited the Quaids to meet and confer only to pull the rug out when asked to clarify if she worked for FNT.”

The reply is supported by the declaration of Evgenia Quaid, who provided evidence of her May 9, 2024 email to plaintiffs’ attorneys that the users “are a third party no relation to Slander of title,” her contention that Ms. Mitchell “suddenly appeared” in the case on May 8, 2024, noting that she had spoken to Mitchell a few years prior about representing the Quaids in the case, and Ms. Mitchell had mentioned she was on retainer to Fidelity National Title (FNT). After being requested to clarify her role in the case, declarant called Mitchell directly, and was informed that Mitchell was no longer involved in the case. She then tried to call attorney Granet who did not pick up the phone. She then related an exchange with FNT attorney James Hepworth, and requested that the Court compel plaintiffs’ counsel to explain who represents FNT.

Quaid motion to strike unauthorized filings, for sanctions, and for leave to file second amended answer The motion first requests that the court strike the March 8, 2023, combination Fourth Amended Cross-Complaint and Amended Answer, which was filed in their names, contending that it was an unauthorized filing which “has introduced significant confusion and risks prejudicing the Defendants’ position in the ongoing legal proceedings.” They explain that they submitted a combination cross-complaint and answer to the court in February, 2023, which was rejected by the court clerk as and improper document, after which they separated the documents and separately filed them on February 14, 2023. They contend that they discovered that “these older different documents had been improperly re-filed together as a tandem document on March 8, 2023, without our consent or knowledge.”

The motion contends that the re-filing was executed by attorney James Alexander Moss, Alicia Urquiza, and Fidelity National Title Group attorney James Hepworth, who was counsel for Fidelity in this case at that time. None were authorized to act for the Quaids. It seeks sanctions against these individuals, in order to uphold the integrity of the judicial process.

The motion further seeks leave to file an amended answer, because plaintiffs’ “fishing expedition” discovery efforts has shifted into an unreasonable attempt to impose liability based on out-of-context and stale allegations. This has highlighted the necessity for defendants to amend their answer to adequately address the newer concerns. This includes that the slander of title claim rests on allegations of conduct that is time-barred. The motion contends that “it has come to light” that plaintiffs and their counsel have acted in a manner that may constitute a serious violation of legal standards, including the solicitation and retention of confidential information “in a manner that echoes recently highlighted criminal behaviors within prosecutorial offices in California,” necessitating judicial intervention to preserve the integrity of the judicial process. Defendants therefore seek leave to file a Second Amended Answer to address the slander of title cause of action, including asserting statute of limitations and abuse of process affirmative defenses.

The motion is supported by the virtually identical supporting declarations of Randy Quaid and Evgenia Quade, in which they discuss the March 8, 2023, filing of the combination cross-complaint and answer document, without their knowledge or consent, and which they declare was accomplished by attorneys Moss and Hepworth and Ms. Urquiza.

The motion attaches a Notice of Errata dated March 24, 2023, which purports to note the alleged unauthorized re-filing of the joint cross-complaint and amended answer, and contends an employee of the clerk’s office informed Evgenia Quaid that the previously rejected tandem document had been refiled and accepted by the clerk on March 8, 2023, by James Alexander Moss and Alicia Urquiza. [Note: The Court notes that while the court file contains two separate documents entitled Notice of Errata which were filed by the Quaids on March 24, the document attached to the current motion is not among them, and the Court has been unable to locate any such document in its file.] It also attaches a copy of the proposed amended answer.

The motion’s proof of service shows electronic service only on counsel for the Turicchis.

Opposition: The Turicchis’ opposition is directed solely to the Quaids’ request for leave to file a Second Amended Answer. With respect to the portion of the motion directed to the striking of unauthorized filings and seeking sanctions, they note only that the parties to whom the requests are directed are not parties to the action, and the only basis for the contention is an alleged hearsay statement made by an unidentified clerk’s office employee.

They note that the proposed Second Amended Answer impermissibly contains a general denial to a verified complaint, in violation of Code of Civil Procedure section 431.30(d), which would be subject to being stricken, as held in Kinard v. Kaelin (1913) 22 Cal.App. 383, 390. It further includes eight new affirmative defenses not included in their last amended answer on February 15, 2023. The opposition argues that the Quaids have not set forth any facts justifying the 16-month delay in filing the motion, in spite of the fact that they represented by the nationwide law firm of Duane Morris for 11 of those months, and yet never sought to amend their answer. The further contend that permitting the amended answer to be filed at this late date would substantially prejudice the Turicchis and require another trial continuance. They would be entitled to and would demur to the Abuse of Process affirmative defense, which raises the same facts for which the Quaids previously sought relief in a motion which was denied by the court on November 16, 2023. They assert that leave to amend should be denied, and cite cases finding that trial court denials of leave to amend answers were found to be within the court’s discretion.

Reply: In their reply, the Quaids accuse attorney Granet of conspiring with Fidelity attorneys “to commit criminal acts and ethical violations” that have harmed the Quaids ability to defend themselves. They reiterate the history of the allegedly unauthorized filing, contending that court clerk “Rosa Raze” informed Evi that attorney Moss and Ms. Urquiza had filed the joint cross-complaint/answer on March 8, 2023. She then emailed attorney Hepworth demanding information, was told that Moss used to work with Fidelity National Law Group “which was a lie.”

The reply then articulates a series of “crimes and ethical violations” they contend the Turicchis and attorney Granet committed, which they contend have severely prejudiced their ability to defend themselves “an are not dissimilar in nature to racketeering, intended to defraud the Quaids and cause them legal harm.”

The reply requests that the court award terminating sanctions against the plaintiffs or alternatively request that their Fourth Amended Cross-Complaint be reinstated in the record in the same tandem format accepted by the Court Clerk on March 8, 2023. They also seek monetary damages and any other relief the court deems appropriate.

The reply is supported by “verifications” in which both Randy Quaid and Evgenia Quaid declare that the foregoing is true and correct. The reply attaches a communication from Lawcopy LLC, dated February 14 2023, noting that the document had been rejected because answers and cross-complaints need to be submitted as separate documents; a copy of the tandem document filed March 8, 2023 (with exhibits), and what appears to be an email chain culminating in attorney Hepworth advising the James Moss is an attorney who used to work for Fidelity National Law Group, and Alicia Urquiza is an assistant who works there.

Turicchi motion to exclude Randy Quaid’s testimony at trial The Turicchis have moved to preclude Randy Quaid from testifying at trial. Following a hearing on January 26, 2023, the Court ordered that the depositions of R. Scott Turicchi, Randy Quaid, and Evgenia Quaid e taken on specified dates. Plaintiff Turicchi appeared, and was deposed over seven hours. The Quaids both appeared on the dates specified by the Court, and refused to answer a single question, including stating their names, based upon claimed Fifth Amendment privilege. The Turicchis then filed a motion to compel the Quaids’ compliance with the court’s order that they appear and testify at their deposition. The Court granted the motion, finding that their previous refusal to answer even those questions which could not possibly have incriminated them did not comply with its prior order, and ordered that the Quaids’ depositions again be taken.

While Evgenia Quaid appeared and provided deposition testimony, Randy Quaid refused to answer 172 questions at deposition, representing approximately 75% of all questions asked of him, all with assertions of his Fifth Amendment privilege. Those included questions whether he had ever had his deposition taken before, whether he had a business relationship with Warren Grant, whether he purchased a house on East Mountain Drive in Montecito in 1989, whether it was his position that he bought the house and still owned it, whether the document showing the transfer of the property to him in 1989 was in fact the deed by which he acquired the property, and the basis for his statement that Bruce Berman signed Randy Quaid’s name to the 1992 Grant Deed, among many others.

The motion asserts that, in the litigation, Randy Quaid has submitted hundreds of pages of declarations, other sworn testimony, and exhibits detailing his version of the facts of the case. The Turicchis proffer “but one example”, in the form of a 16-page declaration, attaching 434 pages of exhibits, which set forth Randy Quaid’s detailed version of the facts of the case. (Document is a declaration of Randy Quaid in support of their opposition to the Turicchis’ motion for summary adjudication, which was filed by the Quaids on February 27, 2023.)

Based on this information, the Turicchis seek to preclude Randy Quaid from testifying at the trial, citing both state and federal authorities. While he has freely told his version of the events underlying this action on repeated occasions, he has evaded any discovery, questioning, or cross-examination on those events, by refusing to answer the relevant substantive questions asked at his deposition by asserting his Fifth Amendment privilege. Under the authorities cited, a party or witness cannot both testify with respect to his version of events, while refusing to provide discovery with respect to that version of events, or to permit cross examination, on Fifth Amendment grounds. If the individual stands on his Fifth Amendment privilege in refusing to respond to questions regarding specific issues or events, he cannot be permitted to provide trial testimony with respect to the those issues or events. Under A&M Records v. Heilman (1977) 75 Cal.App.3d 554, 566, a court may prevent a litigant from claiming his constitutional privilege against self-incrimination in discovery and then waiving the privilege and testifying at trial. (See also International Tel. & Tel. Corp. v. United Tel. Co. of Florida (M.D. Fla. 1973) 60 F.R.D. 177, 186.)

Opposition: In opposition to the motion, the Quaids once again articulated at length their version of the events underlying this action, including Bruce Berman’s alleged forgery of their signatures on the purchase agreement through which Berman acquired the property in 1992; his alleged perjury; their claim that the Montecito Property is not included as an asset in the Bermans’ 2007 divorce proceedings; the Quaids’ contention that documents from Randy’s dissolution from his prior wife (Ella) would show that the loan from Magus Retirement Trust (via Dennis Quaid) was made to Randy and Ella and not Randy and Evi; that Dennis Quaid drove around in his truck while vaping and acting irritated during his February 2024 deposition; that Dennis Quaid had confessed in a magazine article he wrote in 2011 that his memory of the 1989-1991 time frame was defective because of his drug addiction; that Warren Grant’s statement to them that he never sold the Montecito Property was consistent with his declaration statement that it was not sold by his firm; and that they would not have given away their furniture and a million dollars in equity for the sum of $14,000.

They then proceed to argue that he had a right as an American citizen to continue to assert his Fifth Amendment privilege, and that precluding him from testifying at trial would therefore violate his due process rights. Both Randy and Evi Quaid relied on the same set of facts in responding to deposition questions, and Evi Quaid answered every question that was put to her. Randy also contended that he was not feeling well because he was having an adverse reaction to a Covid-19 shot he had taken a couple of days prior, was diagnosed the next day with Covid-19, and was advised by his doctor that he was sick and infected on the day of his deposition. His attorney offered to schedule another deposition, and Mr. Granet agreed, stipulating to May 14 to take the deposition, but then filed the motion to exclude Randy’s trial testimony without further meeting and conferring about the continued deposition. They argue that Mr. Granet acted in bad faith, and has engaged in discovery violations.

Reply: In their reply papers, the Turicchis reiterate Randy Quaid’s submission of detailed declarations setting forth his version of events, and his refusal to answer deposition questions regarding those issues, on two separate occasions. The voluminous opposition papers make no attempt to justify Quaid’s invocation of his Fifth Amendment privilege as to the 172 questions (3/4 of all asked) that he refused to answer at the second deposition. Rather, it again attempts to argue the Quaids’ version of the case. Counsel gave Quaid another opportunity to comply, if he would agree not to claim the Fifth Amendment as to the questions that had been asked, and any follow-up questions to those questions, and asked if he would provide a date within 10 days when he would be available. The Quaids responded that they would not be available for a month, which was 10 days prior to the discovery cut-off, they would not commit to not objecting on Fifth Amendment grounds, and they wanted to tie any further deposition of Mr. Quaid with a further deposition they wanted to take of Lannette Turicchi, for which the Turicchis claim there is no basis.

The reply reiterates the citation to A&M Records v. Heilman, cited in the moving papers, with respect to how a litigant cannot claim a privilege against self-incrimination in discovery, and then waive the privilege and testify as to the same matters at trial.

ANALYSIS: Quaid motion to quash records subpoena served upon YouTube The motion will be denied.

            1.         Scope of discovery.

                        A.        Generally.

Pursuant to Code of Civil Procedure section 2017.010, unless otherwise limited by order of the court, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. “Subject matter,” within the meaning of Section 2017.010, is broader than relevancy to the issues. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1392.) For discovery purposes, information is regarded as “relevant” to the subject matter if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Admissibility at trial is not required; the test is whether the information sought might reasonably lead to other evidence that would be admissible. (Code Civ. Proc., § 2017.010; Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1490-1491.) Discovery statutes must be construed liberally in favor of discovery. (Williams v. Superior Court (2017) 3 Cal.5th 531, 540-541.) Any doubt is generally resolved in favor of permitting discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)

                        B.        Objections based on burden.

In Williams v. Superior Court, supra,  the court found that Code of Civil Procedure section 2017.020(a) permits a trial court to limit the scope of discovery if it determines that the burden, expense, or intrusiveness of the discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The party opposing discovery by claiming it is burdensome must supply the basis for the determination, including providing evidence showing the quantum of work that would be required to respond to the discovery. (Williams, supra, 3 Cal.5th at p. 359.)

                        C.        Right to privacy.

Even highly relevant, nonprivileged information may be shielded from discovery if its disclosure would impair a person’s inalienable right of privacy provided by Article 1, Section 1, of the California Constitution. (Pioneer Electronics (USC), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) However, the protection afforded is qualified, and not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery. The showing required to overcome the protection depends upon the nature of the privacy right asserted. In some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown. Only obvious invasions of interests fundamental to personal autonomy (such as freedom from involuntary sterilization or the freedom to pursue consensual family relationships) must be supported by a compelling interest. In all other cases, the ordinary weighing test applies. (See Williams, supra, 3 Cal.5th at p. 557.) The burden is on the party asserting the privacy interest to establish its extent and the seriousness of the prospective invasion, and the court must then weigh the countervailing interests the opposing party identifies. (Ibid.) The particular context, i.e., the specific kind of privacy interest involved and the nature and seriousness of the invasion and any countervailing interests, remains the critical factor in the analysis. (Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 34.)

            2.         Subpoena of business records or electronically stored information.

Subpoenas may be issued for the production of business records or electronically stored information. (See, e.g., Code Civ. Proc., §§ 1985, 1985.8; Evid. Code, §§ 1560 et seq.) Pursuant to Code of Civil Procedure section 1987.1(a) and (b)(1), a party may move to quash a subpoena requiring the production of books, documents, electronically stored information, or other things at the taking of a deposition. When presented with such a motion, the court may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, and may make any other appropriate order to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (Code Civ. Proc., § 1987.1, subd. (a).)

Pursuant to Code of Civil Procedure section 1987.2(a), the court may, in its discretion, award the amount of the reasonable expenses incurred in the making or opposing of the motion to quash, including attorneys’ fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more requirements of the subpoena were oppressive.

            3.         Discoverability of records subpoenaed from YouTube.

The Quaids seek to quash the subpoena on several grounds. They contend they have no relationship with the individuals whose usernames are set forth. That may well be true, but that does not provide a basis for quashing the subpoena. In fact, the very reason for seeking the information is to confirm whether or not those usernames were made from IP addresses affiliated with the Quaids. If in fact these individuals are truly unknown interlopers who, for some reason chose to post videos of the Quaids making comments disparaging title to the Mountain Drive property, that result would benefit the Quaids in this litigation.

The Quaids also contend that the subpoena should be quashed, because the postings were made outside the slander of title statute of limitations. However, as this Court notes in its analysis of the Quaids’ other motion set for hearing on July 22, the proper application of the slander of title statute of limitations has never been definitively determined in this action. It has therefore not been determined that the posted videos which are the subject of the subpoena would be outside the applicable statute of limitations. Further, even if the specific postings at issue were definitively determined to be outside the statute of limitations, that does not mean that the information is irrelevant under the broad scope of discovery in this action. As noted above, any doubts in the discoverability of the information are to be resolved in favor of disclosure.

The Quaids contend that the requests are burdensome. However, there is certainly no burden on the Quaids, arising from YouTube’s prospective production of information responsive to the subpoena. Further, YouTube has not objected on that bases, or made any showing of the nature of the burden involved. Indeed, it is entirely possible that the information requested would be easily provided by YouTube, with minimal burden involved.

The Quaids further contend that the requests seek personal details of third party internet users, in violation of their rights to privacy. The Turicchis responded by noting that the four videos at issue feature only the Quaids making statements which the Turicchis contend disparaged their title to the Mountain Drive property. Further, the subpoena seeks only verification of the username and posting date associated with the four videos, and the account information for the accounts which posted the videos, limited to the name, birthdate and IP address for those accounts. No financial or other private information is sought. They assert that, to the extent YouTube has that information, it was provided by the user, and to the extent that an individual posted content with respect to the Turicchis’ property without the Turicchis’ permission, they could not have had a high expectation of privacy in response to a request made by the Turicchis.

While third parties posting videos on YouTube have some limited privacy rights, the Court finds that any such privacy interests are outweighed in this case by the extremely limited information sought, and its relevance to the subject matter of this action. To the extent that third parties took it upon themselves to post videos of the Quaids which allegedly slander the Turicchis’ title to the Mountain Drive property, they could have had little expectation of privacy in such information, particularly against a request by disclosure made by the Turicchis. To the extent that any invasion of privacy occurs through the Turicchis’ attempts to obtain this limited information, the invasion is quite minor and by no means qualifies as a “serious invasion.”

For all of the foregoing reasons, the motion to quash the subpoena issued by the Turicchis to YouTube is denied.

Quaid motion to strike unauthorized filings, for sanctions, and for leave to file second amended answer: The motion will be granted in part, denied in part, and modified in part, in the manners set forth below.

1.         Request that May 8, 2023 combined cross-complaint and amended answer be stricken.

The Quaids’ moving and reply papers appear to indicate that the combined cross-complaint and amended answer which was filed on March 8, 2023, was the same document which they had submitted earlier and which had been rejected by the clerk’s office. As the Court interprets their papers, they then separated the cross-complaint and amended answer into separate documents, and submitted them for filing. Their re-submitted amended answer was filed on February 15, 2023. For some reason and in some manner, that document ended up being filed in the case file of this action. The Quaids have disavowed the document which was filed on March 8, have affirmatively asserted that they did not submit it for filing after its previous rejection by the court, and have requested that it be stricken.

In light of the confusion surrounding the filing of the document, which the Quaids contend was accomplished without their knowledge, consent, or authorization, the Court will grant their request to strike the document. While it will continue to appear in the case file, it will have no further legal effect in this action.

2.         Request for imposition of sanctions against attorneys Moss, Hepworth, and Fidelity National Title Insurance Company employee

Based upon an apparent hearsay statement by an employee of the Santa Barbara Superior Court Clerk’s Office, the Quaids contend that the March 8, 2023 document was filed by Fidelity National Law Group attorney James Hepworth, former Fidelity National Law Group attorney James Alexander Moss, and Fidelity National Title Insurance Company employee Alicia Urquiza. [Note: The Court notes that the Quaids have characterized the former cross-defendant in this action as Fidelity National Law Group. However, Fidelity National Law Group appears to be the in house legal department for the Fidelity National group of companies; Fidelity National Title Insurance Company was the entity which was named as a cross-defendant in this action.]

The Quaids’ cross-complaint against Fidelity National Title Insurance Company and others was dismissed by their former counsel on July 19, 2023. As a result, the Court no longer has any jurisdiction over Fidelity National Title Insurance Company, its attorneys from Fidelity National Law Group (including James Alexander Moss and James Hepworth), or any employees of the party or its attorneys. Further, the motion was never served on Fidelity, Mr. Moss, Mr. Hepworth, or anyone affiliated with Fidelity, in any manner. Consequently, fundamental principles of due process preclude the court from making a finding with respect to any purported wrongdoing, or imposing sanctions, without providing them with a full opportunity to appear and respond to the allegations made against them by the Quaids. The request for sanctions will therefore be denied.

3.         Request for leave to file Second Amended Answer.

The Quaids have moved for leave to file a Second Amended Answer. The proposed pleading is attached to their motion. Under the heading of “Affirmative Defenses,” it contains eleven assertions, eight of which were not contained in their February 15, 2023 answer. The eight which were not included in the prior answer bear the following separate title: Statute of Limitations; Truth; Privilege and Right to Petition; Lack of Malice; Failure to Mitigate Damages; No Substantial Harm; Abuse of Process; Equitable Relief Denied. Further, although the Quaids’ prior answer filed February 15, 2023, was a verified answer to the Turicchis’ verified First Amended Complaint (which it has to be, since complaints to quiet title must be verified), the current proposed answer is not verified, and does not separately respond to the allegations of the First Amended Complaint, as is necessary for an answer to a verified complaint.

The Turicchis have opposed the motion for leave, contending that the motion does not justify the 16-month delay in its filing and that they would be prejudiced by permitting the amended answer to be filed at this time, given that they would be entitled to and would demurrer to the abuse of process affirmative defense. They note that the answer is not verified, as required by law. They further contend that the filing of the amended answer at this time would require a further continuance of the trial.

                        A.        Legal Standards.

                                    1.         Amendment of pleadings.

Motions for leave to amend pleadings are directed to the sound discretion of the judge. (Code Civ. Proc., § 473, subd. (a)(1).) The court’s discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158.) In particular, liberality should be displayed in allowing amendments to answers, since a defendant denied leave to amend is permanently deprived of a defense. (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.)

If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend, and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or meritorious defense, it is not only error but an abuse of discretion. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Courts are bound to apply the policy of great liberality in permitting amendments at any stage of the proceedings, up to and including trial, absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761). If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendment prevails, and it is an abuse of discretion to deny leave in such a case, even if sought as late as the time of trial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)

                                    2.         Verification of answers.

Complaints to quiet title must be verified. (Code Civ. Proc., § 761.020.) When a complaint is verified, the answer must be verified. (Code Civ. Proc., § 446, subd. (a).) An answer that is required to be verified, but is not, is subject to a motion to strike, because it is not drawn or filed in conformity with applicable rules. (Code Civ. Proc., § 436, subd. (b); see Cal. Prac. Guide Civ. Proc. Before Trial. (The Rutter Group June 2024), §§ 6:494, 7:173.)

                        B.        Application.

First, this Court notes that the Quaids’ February 15, 2023 amended answer was properly verified; the current proposed pleading is not, and is therefore subject to being stricken, should it be permitted to be filed “as is.”

Second, the Court notes that, of the eight additional items set forth in the proposed answer as “Affirmative Defense,” only two are actual affirmative defenses, i.e. Statute of Limitations, and Failure to Mitigate Damages. Abuse of Process is not an Affirmative Defense: it is an affirmative claim being asserted by the Quaids against the Turicchis. As such, it cannot permissibly be sought through use of an answer. While it is improperly contained in the answer, however, it is ineffective in its current form to seek any affirmative relief against the Turicchis, and therefore causes no harm or prejudice to the Turicchis. The remaining five items—Truth, Privilege and Right to Petition, Lack of Malice, No Substantial Harm, and Equitable Relief Denied (in which defendants simply contend the plaintiffs are not entitled to any equitable relief they seek)—are not affirmative defenses at all, but rather are denials of elements of the slander of title claim and/or the relief sought under the slander of title claim. As such, they are fully encompassed within the existing Affirmative Defense that the complaint fails to state facts sufficient to constitute a claim, which is set forth in both the proposed amended answer (at p. 4, No. 11) and the February 15, 2023 amended answer (at pp. 11-12).

Third, this leaves just Statute of Limitations and Failure to Mitigate Damages as the sole “new” and “proper” matter which the proposed answer seeks to add. The Court finds no prejudice to the Turicchis, should the Quaids be permitted to amend their answer to include these two new affirmative defenses. Even though not previously pleaded, the statute of limitations defense was made an issue in this action by having been raised on multiple occasions by the Quaids’ former counsel. It was an issue in the Quaids’ motion for judgment on the pleadings, filed on August 31, 2023. (See Motion for Judgment on the Pleadings at p. 9, lines 1-16.) In opposing the motion, the Turicchis did not object to the motion on the basis that the statute of limitations had not been alleged as an affirmative defense. The Court denied the motion after hearing ultimately held on November 6, 2023.

The slander of title statute of limitations was also one of several bases for the motion for summary judgment which was curiously filed by the Quaids’ former counsel on March 8, 2024, at a time when they no longer represented the Quaids. While the Turicchis’ opposition to the motion raised the issue that the Quaids’ answer did not properly assert the statute of limitations as an affirmative defense, it also proceeded to respond on the merits to the motion’s claim that the slander of title cause of action was barred by the applicable statute of limitations. As reflected by this Court’s June 3, 2024, ruling on the motion for summary judgment, while the parties had correctly identified the limitation period applicable to slander of title claims (Code Civ. Proc., § 338, subd. (g)), neither had identified the proper accrual date for such a claim, i.e., when the plaintiff could reasonably be expected to discover the existence of the claim. (See (Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1230; Arthur v. Davis (1981) 126 Cal.App.3d 684, 691-692.) The Court further noted that the motion had simply concluded that publications made more than three years prior to the date of filing the FAC were barred by the statute of limitations, without having established whether or not the cause of action related back to the filing of the original complaint for statute of limitations purposes, and in that manner had failed to meet its moving burden. As a result, it was not necessary for the court to address the relation-back issue at that time. The Court noted that because the Turicchis had sought a restraining order against the Quaids in 2016 based upon publications made up to that time, their slander of title claim would likely be barred to the extent it was based upon the pre-2016 publications. However, whether the entire slander of title claim was barred would require application of the proper standard (when the plaintiff could reasonably be expected to discover the existence of the claim) to any post-2016 slanderous publications that were made.

The statute of limitations has been well discussed in the case, and the Court finds the Turicchis could not suffer prejudice from permitting it to be alleged as an affirmative defense, even at this late date, and under these circumstances it would be an abuse of this Court’s discretion were it to deny leave to amend to assert it. The Court further has not discerned any basis for finding prejudice incurred by the Turicchis based upon the addition of a “failure to mitigate” claim at this time.

In summary: (1) the proposed answer is not verified, and it must be; (2) 5 of the new “affirmative defenses” set forth in the proposed answer are not affirmative defenses at all, but rather are essentially denials of the elements of the claim, and therefore are fully encompassed in the “failure to state sufficient fact” affirmative defense which is also alleged; (3) abuse of process is not an affirmative defense, but a claim for affirmative relief which cannot legally be raised in an answer, the presence of which in the answer is a legal nullity which essentially causes no harm; (4) the Court has found that, under the circumstances present in this case, there is no significant prejudice to the Turicchis from permitting the Quaids to add the statute of limitations and failure to mitigate damages affirmative defenses at this time, and in fact that denying them that ability would constitute an abuse of this Court’s discretion.

Given this “mixed bag” of results, and in order to expedite future proceedings in the case, the Court will order that the Quaids’ February 15, 2023 amended answer, which was verified as required by the above-cited authorities, be amended to include the following affirmative defenses:

EIGHTH AFFIRMATIVE DEFENSE

(Statute of Limitations)

The cause of action for slander of title is barred in whole or in part by the three-year statute of limitations set forth in Code of Civil Procedure section 338(g).

NINTH AFFIRMATIVE DEFENSE

(Failure to Mitigate Damages)

Plaintiffs have failed to take reasonable steps to mitigate any alleged damages.

The February 15, 2023 amended answer will be deemed amended to make this change as of the date of the hearing on this motion.

With respect to the issue whether the amendment of the answer will require a brief further continuance of the trial, the Court will address that issue with the parties. Certainly, while the Court believes that its order addresses both the needs of the Quaids and the Turicchis’ objections to the proposed answer which was submitted with the motion, the Turicchis have a right to further challenge the amended answer if they choose to do so, which would necessitate at least a brief continuance. Further, the Court notes that there are currently five separate motions set for hearing on August 12, 2024, which is also the current Trial Confirmation Conference date, the resolution of which could potentially also impact the existing trial date.

Turicchi motion to exclude R. Quaid Testimony While ever person has a Fifth Amendment right not to provide testimony in any action on the basis that it might tend to incriminate him, that right is absolutely only when used as a shield. It can be legally considered waived when that person attempts to use it as a sword, as defendant Randy Quaid has done in this case. The authorities cited by the Turicchis’ motion are entirely correct—a party cannot use his or her Fifth Amendment privilege to refuse to answer questions posed during deposition or other discovery, and then be permitted to take the stand to testify as to the subject matter of those same questions at trial.

As a result, the Court will grant the motion, in the manner outlined herein. If the trial date is not continued as a result of the other motions set for hearing on July 22 or August 12, Randy Quaid will be precluded from providing any testimony at trial on any of the issues for which he asserted his Fifth Amendment privilege during deposition. It appears to this Court that this largely precludes any testimony with respect to his version of the underlying facts of this case.

The Court notes that Evgenia Quaid properly submitted to the second deposition, and responded to questions regarding the Quaids’ version of the facts underlying this action without asserting her Fifth Amendment privilege. The fact that she fully submitted to deposition questions without asserting her Fifth Amendment privilege, and will be permitted to provide proper (i.e. admissible) testimony regarding the facts of the underlying action, has absolutely no bearing on the motion as it relates to Randy Quaid. Having used his Fifth Amendment privilege to refuse to answer relevant questions regarding the facts of the case, he cannot and will not be permitted to take the stand at trial to testify as to any such facts.

The Court is cognizant of the fact that the Quaids’ former counsel, Grant Puleo, refused on the record to counsel Mr. Quaid at his November 7, 2023, deposition on his assertion of the Fifth Amendment as a basis for refusing to answer questions seeking information related to this case. The Court has no information on whether Mr. Puleo ever, at any other time, counseled Mr. Quaid or provided him with any information on the possible legal ramifications of his continued assertion of his Fifth Amendment privilege with respect to deposition questions seeking information relevant to this case, in terms of impact of that assertion in precluding him from being permitted to provide testimony at trial on any such issues.

As a result of its concerns that Mr. Quaid was never properly counseled or advised of those serious ramifications, IF the existing August 12, 2024 trial date of this action is continued for reasons unrelated to this motion, the Court will given Mr. Quaid the opportunity to submit one more time to a deposition, and to respond to questions regarding his version of the facts underlying this case. If he does so, and provides substantive responses to questions seeking information related to the issues underlying this case, he will be permitted to testify at the continued trial. If he opts not to submit to such a deposition, or if he submits to the deposition but continues to assert his Fifth Amendment rights, the order precluding his testimony at trial will stand.