Opinion
D078584
04-05-2022
ILDIKO JUHASZ de TESAK, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DARREN JAMES RUSHIN, Real Party in Interest.
Snell & Wilmer, Jeffrey M. Singletary, Jing Hua and Justin F. Mello for Petitioner. No appearance for Respondent. Stephen Temko for Real Party in Interest.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County No. 18FL007362N, Matthew Brower, Judge. Appeals dismissed; petition for writ of mandate denied.
Snell & Wilmer, Jeffrey M. Singletary, Jing Hua and Justin F. Mello for Petitioner.
No appearance for Respondent.
Stephen Temko for Real Party in Interest.
AARON, J.
I.
INTRODUCTION
Claudia Elena Tesak de Rushin (Claudia) filed this action to dissolve her marriage to Darren Rushin (Darren) in 2018. In January 2020, while Claudia's mother, Ildiko Juhasz de Tesak (Ildiko), was visiting California, Darren personally served Ildiko with a subpoena directing her to appear at a deposition. After Ildiko failed to appear, Darren filed a request for an order to compel Ildiko's appearance at a deposition.
We use the litigants' first names for purposes of clarity and intend no disrespect. Although Ildiko is a party to the proceedings in this court, it is undisputed that she is not a party to the underlying dissolution action.
Claudia and Ildiko filed separate oppositions to Darren's request. In her opposition, Claudia argued that the trial court lacked subpoena jurisdiction over Ildiko. Specifically, Claudia argued that Ildiko was not a resident of California, as is required for a subpoena to be enforceable under Code of Civil Procedure section 1989. In support of her contention that Ildiko was not a resident of California, Claudia relied on In re Morelli (1970) 11 Cal.App.3d 819 (Morelli) and its discussion of the factors relevant to a determination of a prospective witness's residency under section 1989.
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure. As discussed in detail in part III.C.2, post, section 1989 provides in relevant part: "A witness ... is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service."
Ildiko argued in her opposition that the trial court could not order her to appear at the deposition because Darren had not personally served her with his request for order seeking to compel her attendance. While Ildiko acknowledged that Darren had e-mailed her the request for an order to compel her deposition, she argued that personal service of the request for order was required pursuant to California Rules of Court, rule 5.92(f).
Unless otherwise specified, all subsequent rule references are to the California Rules of Court.
After a hearing, the trial court granted Darren's request for order, and compelled Ildiko, who had returned to El Salvador, where she is domiciled, to attend the deposition by way of a videoconference. Ildiko filed an appeal from the court's minute order granting Darren's request for order and compelling her attendance at a video deposition, and filed a second appeal from the final order granting the same. On appeal, Ildiko contends that the trial court erred in compelling her deposition. Specifically, Ildiko claims that the trial court erred in concluding that personal service of Darren's request for order was not required pursuant to rule 5.92(f). Ildiko further maintains that she is not a resident of California for purposes of the trial court's subpoena jurisdiction.
Ildiko's appeals were assigned a single appellate case number, and she has filed a single opening brief.
We dismiss Ildiko's appeals as having been taken from nonappealable orders. (See Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 465 (Curtis) [dismissing nonparty's appeal from order compelling deposition testimony as having been taken from a nonappealable order].) However, we treat Ildiko's appeal from the trial court's final order compelling her deposition as a petition for writ of mandate and review the merits of Ildiko's contentions. (See ibid, [treating appeal from nonappealable discovery order as a petition for writ of mandate].)
On the merits, we conclude that the trial court did not err in compelling Ildiko to attend a deposition by videoconference. Specifically, we conclude that the trial court properly determined that Darren was not required to personally serve Ildiko with his request for order pursuant to rule 5.92(f). We also conclude that the court did not err in determining that Ildiko was a resident of California at the time of service of the subpoena, for purposes of the trial court's subpoena jurisdiction. Accordingly, we deny Ildiko's writ petition.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Claudia and Darren's marriage dissolution proceeding
We base our summary of the procedural history of the underlying dissolution action on appellant's opening brief.
Claudia filed this marital dissolution action in June 2018. As of the time of the filing of Ildiko's opening brief in this appeal, the dissolution proceeding remained pending, and neither Ildiko, Darren, nor Claudia has provided this court with any information indicating that the dissolution action has concluded.
B. Darren's request for an order compelling Ildiko's deposition
Darren filed a request for an order compelling Ildiko to attend a deposition in the dissolution proceeding in June 2020. In his request, Darren requested the following:
"Nonparty Ildiko . . . shall appear at deposition and answer all non-privileged questions. [Ildiko] shall forthwith
provide to Darren Rushin's counsel proposed dates and locations in California, Delaware, or another location at her choosing in the United States for when that deposition shall proceed."
In a supporting memorandum, Darren noted that, on January 3, 2020, Ildiko had been personally served with a deposition subpoena outside of her daughter Carla's vacation home in Indian Wells, California. The subpoena commanded Ildiko to appear for a deposition on January 15, 2020, to be conducted at Darren's counsel's office in San Diego. Ildiko did not appear for the deposition, and she did not raise any objection to the subpoena.
Darren argued that Ildiko's deposition testimony was material in determining "[Claudia's] and Darren's assets, interests, and access to funds in particular, which are significant factors in setting spousal support and legal fees in light of the size of the potential estate (+/- $200 million) and the marital lifestyle (+/- $1.5 - $1.8 million annually), but also in determining the proper division of the marital estate."
Specifically, Darren claimed that Claudia had reported "only a fraction of separate estate on her disclosures in this case," and that she had omitted information concerning:
"a. The family's central American snack food company called 'Diana.'
"b. The family's vast real estate holdings in El Salvador.
"c. The assets of our ([Claudia] and my) 2014 irrevocable trust [(the 2014 Trust)]."
Darren contended that, while Claudia disclaimed an interest in Diana and the real estate holdings, Ildiko might have information that revealed Claudia's interests in such assets. With respect to the 2014 Trust, Darren argued:
"[Ildiko] is also seeking to undo a transfer of more than $40 million in assets to a 2014 [Trust], suggesting in [a] Delaware case [(Delaware Case)] that she was taken advantage of in setting up that trust. The outcome of [Ildiko's] efforts will have significant repercussions in the family law case, because it will determine whether Darren will receive at least $10 million in trust assets, and that will affect his need for support and fees."
Darren further argued that Ildiko could be compelled to appear for the deposition because she was a "resident" for purposes of California's subpoena statute (§ 1989), as that term had been interpreted in Morelli, supra, 11 Cal.App.3d 819. Darren explained that in Morelli, the Court of Appeal concluded that the term "resident," "is a very broad term as used in the subpoena statutes, and simply refers to an 'abode,' coupled with a 'sojourning connection with the area of a type and duration related to the status of a witness and which makes it not a hardship for him to attend the legal proceedings at which he is commanded to appear.'" (Quoting Morelli, supra, at p. 831.)
In his memorandum, Darren explained that on the day after Ildiko failed to appear at her deposition, Claudia's counsel sent Darren's counsel a letter suggesting that Darren's subpoena might be invalid because Ildiko is domiciled in El Salvador. Darren explained that his counsel responded to the letter by stating that Ildiko was a resident of California for purposes of section 1989 under Morelli. In his memorandum, Darren also argued that El Salvador did not provide a "workable alternative location for a deposition of [Ildiko], for [various] reasons including that only voluntary depositions are permitted there."
Darren argued that Ildiko has an" 'abode' [in California] each time she travels to Southern California and stays at her daughters' homes in San Diego, Indian Hills, and Laguna Beach." Darren further maintained that "[s]ince those trips are usually for a few weeks at a time, and since Ildiko is actively litigating the cases involving Darren and [Claudia] . . . Ildiko also has a sojourning connection with the area of a type and duration related to the status of a witness."
Specifically, Darren argued that Ildiko was "actively litigating against Darren in both this marital dissolution case and the related and proxy Delaware trust case [i.e., the Delaware Case]." Darren supported this contention by arguing:
"Comerica filed the Delaware petition challenging the trust decanting four years after [Ildiko] and Comerica approved it, and only after [Claudia] filed for divorce from Darren. In fact, Comerica only filed the petition after [Ildiko] informed Comerica's representatives that she believed there was a basis to challenge the decanting. [Ildiko] has since joined in the petition and propounded discovery to Darren. [Citation.]
Elsewhere in his memorandum, Darren explained that Comerica Bank is the "institutional trust[ee] of the 2014 Trust."
In a supporting declaration, Darren explained the trust decanting process as follows: "In 2015, the monetary assets and all other assets held in [a trust established in 2012] were transferred to the 2014 Trust by a process called 'decanting.' Comerica was set up as the institutional trustee for the 2014 Trust, and Comerica approved of the decanting, as did Ildiko (as settlor of the trust), [Claudia], and I."
"In this case, in July 2019, [Ildiko] filed a substantive declaration which the court relied on in making orders opposing Darren's request for a bifurcated early trial terminating marital status. Then in March 2020, [Ildiko] issued a subpoena to Darren's counsel, Procopio, seeking Procopio records, and using the law firm of Snell & Wilmer. [Citation.]"
Darren also argued that Ildiko had "had significant, meaningful, and continuing connections and contacts with southern California going back at least 40 years," which he contended supported an order compelling her deposition. Darren outlined these connections in his memorandum and in a May 25, 2020 supporting declaration in which Darren stated the following:
The declaration contained in the appellant's appendix is unsigned. However, we assume that Darren signed the actual declaration lodged in the case because Ildiko cites to Darren's May 25, 2020 declaration in her brief and does not contend that the declaration lacks a signature.
"a. As early as 1980, [Ildiko] availed herself of the legal process of San Diego [C]ounty, as court records show she filed a civil action for specific performance, case number 448102, here against someone named 'A Jack Schaps.'
"b. [Claudia] told me that she and her siblings, Carla and Andy, attended school during the [six] years they lived here in San Diego, including at La Jolla Country Day school.
"c. [Ildiko] owned the home at 16665 Via De Rosales in Rancho Santa Fe, California from before 1995 until she sold it in 2014.
"d. Two of [Ildiko's] three children, and two of three sets of [Ildiko's] grandchildren, all live here in Southern California, and [Ildiko] frequently comes to visit them, staying here for weeks at a time on those trips, and often conducting business.
"e. [Ildiko], together with her children, hold tens of millions of dollars in liquid funds in UBS accounts in San Diego, which are administered by Tesak family wealth advisor Robert Brower.
"f. [Ildiko] engaged San Diego attorney, Phillip Sullivan, to assist her with tax and estate planning in 2011.
"g. [Ildiko] established the grantor trust of her daughter Carla and her husband George Arzente in 2012 with San Diego counsel.
"h. [Ildiko] engaged San Diego attorneys Miguel Leff and Janet Ambrozek to assist her in establishing the California sitused 2012 [Claudia] and Darren Irrevocable Trust [(2012 Trust)], and she reengaged Mr. Leff and, to a lesser extent, Ms. Ambrozek, to represent her with the [2014 Trust].
"i. [Ildiko] engaged Snell & Wilmer in April 2018 (per her declaration) to assist her in tax and trust issues, even before the activities in this divorce case. During this case, Snell & Wilmer has issued a subpoena on [Ildiko]'s behalf to my attorney, the law firm of Procopio, Cory, Hargreaves & Savitch [(Procopio)].
"j. [Ildiko] also has received for years, and continues to receive, regular mail to an address in Rancho Santa Fe in the same way that other Rancho Santa Fe residents receive mail-to a PO Box held by the Rancho Santa Fe post office. Specifically, [Ildiko] receives mail to [address omitted], which is connected to physical address [address omitted]. That mail includes, among many other things, the mail she received from Comerica Bank, the institutional trust[ee] of the 2014 Trust.
"k. [Ildiko] was a speaker at Solana Beach's rotary club in the past few years.
"l. In this case, [Ildiko] filed a declaration to oppose my request that a bifurcated divorce judgment be entered."
Darren's counsel, Attorney Michelle Brown of Procopio, also lodged a declaration in support of his request. In her declaration, Attorney Brown outlined the facts pertaining to her firm's issuance of the deposition subpoena to Ildiko and Ildiko's nonattendance at the deposition. Attorney Brown also stated that, in March 2020, while representing Ildiko, the law firm Snell & Wilmer issued a subpoena in the Delaware Case to Procopio seeking various records, including those related to the 2014 Trust.
Darren lodged the March 23, 2020 subpoena as an exhibit to his request for order as well as a related "notice to consumer," informing Darren that Ildiko was seeking his records via the March 23, 2020 subpoena.
Attorney Brown also stated that Ildiko had participated in this case in the following manner:
"In July 2019, [Ildiko] also filed a substantive declaration in this case which the court relied on in making orders at an initial [sic] opposing Darren's request for a bifurcated early trial terminating marital status. The matter was then set for a one-day trial, at which time marital status was bifurcated and terminated."
Darren also lodged numerous documents with his request, including: the December 31, 2019 deposition subpoena for personal appearance and production of documents directed at Ildiko and an accompanying proof of service; a document providing Claudia with notice of the planned deposition of Ildiko; a certificate of Ildiko's nonappearance at the deposition; correspondence pertaining to Ildiko's failure to appear for the deposition, and the March 2020 subpoena and consumer notice issued in the Delaware Case referred to in footnote 10, ante.
The proof of service indicates that Ildiko was personally served with the deposition subpoena on January 3, 2020.
Darren also lodged his May 15, 2020 declaration that he had previously lodged in the case. Among other topics, Darren outlined in detail the basis for his claims that Claudia maintained an interest in various assets that she had not disclosed in the marital dissolution action.
Darren's May 15, 2020 declaration also stated that the Delaware Case was related to the present action, serving as a "proxy divorce case." Darren explained that "[a]fter [Claudia's] divorce was filed, Ildiko told Comerica (through counsel) in early 2019 she believed there was a technical defect in the decanting that made the transfer of assets [into the 2014 Trust] void." According to Darren, "Comerica then filed a petition in April 2019 in a Delaware court seeking a declaration the decanting was defective, and that the decanted assets should be returned to the 2012 Trust." Darren further explained that:
"If [Claudia], Ildiko, and Comerica succeed in their gambit to have the decanted assets returned to the 2012 Trust on a technicality, then [Claudia] will be much closer to her spiteful. . . goal of keeping me from getting my distribution. That's because the 2012 Trust, unlike both its predecessor and successor trusts, only permits me to receive my distribution upon Ildiko's death, instead of also on divorce."
C. Claudia's opposition
Claudia filed an opposition to Darren's request for order to compel Ildiko's deposition. As relevant to this appeal, Claudia argued that the trial court lacked subpoena jurisdiction over Ildiko because Ildiko was not a resident of California under section 1989 and Morelli. While Claudia acknowledged that Ildiko "occasionally visits the United States," Claudia argued that "visiting one's children in California on occasion is not sufficient to establish an 'abode' in California," under Morelli.
Claudia also argued that Ildiko's litigation activities in California did not support the conclusion that she was a resident of the state. Specifically, Claudia argued that the subpoena served on Darren's counsel was "issued in the Delaware [Case], not this action." Claudia also argued that "the mere fact that Ildiko's declaration was used as evidence in this action does not support [Darren's] argument: submitting a declaration did not even require Ildiko to be physically present in California, and certainly is not enough to establish her residence here."
Finally, with respect to the hardship, Claudia argued, "It would certainly be a hardship for Ildiko to be required to put her life on hold and fly to the U.S. any time her presence was requested in connection with this case."
Together with her opposition, Claudia lodged a declaration in which she discussed and contested some of the facts that Darren had asserted in his declaration with respect to Ildiko's alleged California residency. For example, in her declaration, Claudia stated:
"3. Ildiko Tesak is my mother and is not a party to this action. My mother lives in El Salvador. She neither owns property nor conducts business in California.
"4. My mother comes to California occasionally to visit my sister and me. When she visits California, she does so on a tourist visa, and generally stays for approximately a week to ten days.
"5. My mother does not have a landline telephone number in California. Though she has a Post Office box in Fairbanks Ranch, California, she must pay an annual fee to maintain it because, unlike residents of that area who also utilize Post Office boxes, she does not live in Fairbanks Ranch and does not have her own physical address connected to the Post Office box. My mother has indicated to me that she pays for a Post Office box in California only because it is not safe for her to receive mail from the United States at her home in El Salvador as the mail system in El Salvador is slow and unreliable.
"6. Post Office box [address omitted] belongs to me, as does the physical address it is connected to, [address omitted].
"7. At one time, my mother owned a vacation home in Rancho Santa Fe. She never used this as her permanent residence and sold the house in 2014."
Claudia also denied that Ildiko had ever retained Attorney Sullivan or that she "held a regular position with Solana Beach's rotary club."
D. Ildiko's objection
Ildiko filed an objection to Darren's request for order. In the objection, Ildiko stated, "Ildiko specially appears only to object to the jurisdiction of this Court on the grounds that the [r]equest for [o]rder was not properly served on her." According to Ildiko, Darren's e-mail service of the request for order was invalid pursuant to rule 5.92(f) which, as discussed in greater detail in part III.B, post, provides in relevant part:
Ildiko did not dispute that she was properly and personally served with the deposition subpoena. She challenged only the service of the request for order. In her brief on appeal, Ildiko expressly acknowledges that, in January 2020, she "accepted personal service [of the deposition subpoena] outside of her daughter Carla's vacation home in Indian Wells, California."
"(1) The Request for Order (form FL-300) and appropriate documents or orders must be served in the manner specified for the service of a summons in Code of Civil Procedure sections 415.10 through 415.95, including personal service, if:
It is undisputed that sections 415.10 through 415.95 do not authorize e-mail service.
"(A) The court granted temporary emergency orders pending the hearing;
"(B) The responding party has not yet appeared in the case as described in rule 5.62; or
"(C) The court ordered personal service on the other party." (Italics added.)
Ildiko contended that she was entitled to service of the request for an order in the manner specified for the service of a summons because she had not made a general appearance in the matter pursuant to rule 5.62.
As discussed in greater detail in part III.B, post, rule 5.62(b) provides in relevant part: "[A] respondent is deemed to have made a general appearance in a proceeding when he or she files: "(1) A response or answer; "(2) A request for order to strike, under section 435 of the Code of Civil Procedure; "(3) A request for order to transfer the proceeding under section 395 of the Code of Civil Procedure; or "(4) A written notice of his or her appearance."
Ildiko did not address Darren's contention that she was a resident of California under section 1989 and Morelli.
Ildiko's objection did contain a footnote in which she stated the following: "Darren asserts that [the law firm Snell & Wilmer L.L.P.] [(Snell)] represented Ildiko as early as March 23, 2020, in the Marriage of Rushin matter, by serving an out-of-state subpoena from the [Delaware Case]. . . . However, in serving the out-of-state discovery, Snell was acting as local counsel-as it relates to the [Delaware Case]-to propound discovery in that case. That discovery was not connected to the Marriage of Rushin matter in any way."
Ildiko lodged a declaration in support of her objection. While her objection asserts, "I am not a citizen, nor a resident, of the United States," it did not address any of the evidence of her alleged residency discussed in Darren's declaration.
Ildiko's declaration also stated the following with respect to her purported nonparticipation in this matter:
"I have not appeared in the Marriage of Rushin matter, nor do I have any connection to the case outside of the involvement of my daughter, [Claudia]."
In her declaration in the trial court, Ildiko did not specifically deny having previously filed a declaration in this case, and in her brief on appeal, she acknowledged having filed the declaration, stating, "Prior to her special appearance, the extent of Ildiko's participation in the Marriage of Rushin matter was the submission of a declaration in support of an opposition to one of Darren's filings in the case."
Ildiko acknowledged that Darren had e-mailed her the documents pertaining to his request for an order to compel her deposition.
E. Darren's reply
Darren filed a reply brief in support of his request. In his reply, Darren maintained that Claudia's contention that Ildiko was not a resident of California was without merit. Among other arguments, Darren contended:
"[Claudia] implies that Ildiko's actions in the [Delaware Case] are irrelevant to Darren's claim that that Ildiko has affirmatively participated in this divorce case by filing the July 2019 declaration in this California case, but Ildiko's July 2019 declaration was nearly all about claiming that this California case was heavily impacted by the Delaware [C]ase, and it concluded with Ildiko asking the California Court for orders, as follows:
" 'Based on all of the above, I respectfully request this Court deny Darren's request to grant a divorce to [Claudia] and Darren at this time or, if the divorce is granted, that their marriage is dissolved on the specific condition that no decision is made regarding the Delaware Trust and that the Divorce Clause is not triggered as a result.' "
Although it is not entirely clear from Darren's quotation of Ildiko's declaration, it appears that the "Delaware Trust," refers to the 2014 Trust.
Darren also contended that Claudia's claim that it would be a hardship for Ildiko to come to the United States for a deposition was without merit, because he had originally requested only that Ildiko be ordered to attend a deposition" 'on her next travel to the United States.'" Darren contended that Claudia's hardship argument was "even more of a strawman now," because, due to Covid-19, "Ildiko's deposition can, and presumptively will, proceed by web-based video." To that end, Darren modified his request for order to request that Ildiko attend the deposition by "web-based video conference." (Italics omitted.)
Darren also argued that Ildiko's contention that she was entitled to personal service of Darren's request for order under rule 5.92(f) was without merit "for a litany of reasons," including that section 2020.220, subdivision (c)(3) "states that 'personal service of [the] deposition subpoena [itself] is effective' not only to require the deponent's appearance and production at the deposition, but also to require 'the deponent's attendance at a court session to consider any issue arising out of the deponent's refusal' to participate in the deposition."
We discuss section 2020.220, subdivision (c) in detail in part III.B, post.
With his reply, Darren filed a declaration that stated in relevant part, "Ildiko . . . has had, for several years, a San Diego number for her cell phone."
The declaration contained in the appellant's appendix bears an "/S/," in the signature block. However, as with his May 25, 2020 declaration, we assume that Darren signed the declaration lodged in the case with his reply because Ildiko cites to this declaration in her brief and does not contend that the declaration lacks a signature.
F. The discovery referee's recommendation
A discovery referee reviewed the matter and issued a draft recommendation that the trial court find that Ildiko was a resident of California for purposes of section 1989, but that Darren had not properly served the request for order seeking to compel her deposition.
Darren filed an objection to the recommendation in which he argued that he was not required to personally serve Ildiko with the request for order to compel the taking of her deposition, given his proper personal service of the deposition subpoena. (Citing § 2020.220, subd. (c)(3).)
The discovery referee issued a final recommendation in which he recommended that trial court find that Ildiko was a resident for purposes of section 1989:
"It seems clear that the deponent was personally served with the deposition subpoena and then failed to object to or appear for her deposition. Counsel for [Claudia] do[es] not have a legal stake in this issue beyond that of examination of a third party witness. Counsel for [Darren] properly served the deposition subpoena. See [Morelli, supra, 11 Cal.App.3d 819]. The abode issue sides with [Darren] from this referee's point of view including [Ildiko's] frequency in California, her P.O. Box, the San Diego, Indian Wells, and Capistrano stays not to mention her funds in financial institutions here."
However, the referee recommended that the trial court find that Darren had not properly served the request for order on Ildiko. The discovery referee reasoned:
"The issue for this motion to compel is did counsel for Respondent properly serve the motion to compel on the deponent? Based on the proof of service in my possession, I recommend that the Court find there was no service on the deponent and that the Court either reissue the motion to compel the deposition of [Ildiko] or allow [Darren] to re-file and then serve the motion. I did review the Code section cited by Darren's counsel [i.e., section 2020.220, subdivision (c)] addressing the notion that once properly served with the subpoena, they could serve a motion to compel by mail. Counsel is correct if the deponent is a California Resident. Such is not the case here."
Thus, it appears that the discovery referee recommended that the trial court find that Ildiko was a resident of California for purposes of service of the deposition subpoena pursuant to section 1989, but that she was not a resident for purposes of section 2020.220, subdivision (c)(3). The referee did not offer any basis for his apparent conclusion that the word "resident" in sections 1989 and 2020.220, subdivision (c)(3) had different meanings and neither Ildiko nor Darren raises any such argument in their briefs in this court.
G. The trial court's ruling
After hearing argument from counsel and soliciting the input of the discovery referee, the trial court ordered the deposition to proceed. The court stated:
"I think that pursuant to the criteria laid out in the Morelli case that I agree with [the discovery referee] and [Darren's counsel] that [Ildiko] is a resident of the state of California.
"There are plenty of criteria that support this. She for a certain portion in her life was raising her children here in San Diego. She's maintained two households here in Rancho Santa Fe. She continues to have immediate family members living full time, if not the majority of the time, in San Diego. She frequently visits and stays with these family members. She's members of clubs [sic] and associations locally here in the community. She maintains and uses a P.O. Box. She was physically present in San Diego County when she was served personally with the subpoena to appear at the deposition.
"I find that pursuant to the Morelli case that she is -- that there is sufficient evidence for me to find that she is a resident of the state of California. She chose not to then appear at the deposition. The motion to compel was not served personally. Instead it was sent by mail to her San Diego County P.O. Box as well as to her attorney ....
"I am going to find that that was sufficient and that personal service of the motion to compel, which is a subsequent act after the personal service of the subpoena, is not necessary pursuant to . . . [s]ection 2020.220.
"And so I am going to order or find, actually -- I'll find that there was effective service, and I'll order that the deposition proceed."
The trial court then stated, "I think that maybe it makes sense for me to order that it proceed via video teleconference over the Internet," and asked Darren's counsel for his thoughts on the matter. After Darren's counsel stated that he agreed, the court continued:
"So then that's the order of the Court, [Ildiko's counsel]. She doesn't need to fly back to San Diego for this. Video teleconference is authorized."
The court directed Darren's counsel to prepare a formal order outlining the court's rulings.
That same day, November 4, 2020, the trial court's clerk entered an unsigned minute order outlining the court's ruling and the court's direction that Darren's counsel prepare a formal order.
The trial court entered a formal order on February 5, 2021, that stated in relevant part:
"Darren's motion to compel the deposition of Ildiko Tesak is granted, as follows:
"1. Pursuant to the criteria laid out in [Morelli, supra, 11 Cal.App.3d 819], Ildiko Juhasz de Tesak is a 'resident' of California for purposes of subpoena power. The Court finds that sufficient evidence supports it. [Ildiko] chose not to appear at the deposition, after being personally served in California with the subpoena.
"2. [Ildiko] was served with the motion to compel her deposition by mail to her P.O. Box, and the motion was also served on her attorney. The court finds that is sufficient service and that personal service of the motion is not necessary pursuant to . . . section 2020.220.
"3. The court orders that the deposition of [Ildiko] will proceed, and a video conference appearance is authorized. If the parties are unable to reach an agreement regarding the video appearance, an ex-parte application may be filed."
H. Ildiko's appeals
On January 12, 2021, Ildiko filed a notice of appeal from the November 4, 2020 minute order.
On March 4, 2021, Ildiko filed a notice appeal from the February 5, 2021 order.
As noted in footnote 4, ante, the appeals were de facto consolidated, having been issued a single appellate case number.
III.
DISCUSSION
A. We dismiss Ildiko's appeals but treat her March 4, 2021 appeal as a writ petition and review the February 5, 2021 order compelling her deposition
In her brief on appeal, Ildiko states, "To the extent this court determines the trial court's orders are not appealable, Ildiko respectfully requests that this court treat this appeal as a writ petition." For the following reasons, we conclude that the orders at issue are not appealable. However, we treat Ildiko's March 4, 2021 appeal as a petition for writ of mandate and review her claims pertaining to the February 5, 2021 order compelling her deposition in parts III.B and III.C, post.
While Ildiko's appeals were pending, the Court of Appeal in Curtis, supra, 62 Cal.App.5th 453 concluded that a nonparty, Attorney Robert Curtis, had "appealed from a nonappealable discovery order," granting plaintiff California Employment Lawyers Association's (CELA) motion to compel Curtis to provide certain deposition testimony. (Id. at p. 459.) However, the Curtis court treated the appeal as a petition for writ of mandate and considered the merits of Attorney Curtis's claims.
The Curtis court reasoned as follows. First, the Curtis court observed that" '[g]enerally, discovery orders are not appealable.'" (Curtis, supra, 62 Cal.App.5th at p. 463.) While the Curtis court considered the possibility that the discovery order at issue in that case was appealable pursuant to the collateral order doctrine, it ultimately concluded that the doctrine did not apply. (Id. at pp. 464-465.) The Curtis court explained that, "[c]ourts have . . . treated collateral orders as appealable . . .' "[w]here the trial court's ruling on a collateral issue 'is substantially the same as a final judgment in an independent proceeding' [citation], in that it leaves the court no further action to take on 'a matter which ... is severable from the general subject of the litigation.' [citation]." '" (Id. at p. 464.) While acknowledging that the order in that case resolved all of the issues in the case as to nonparty Attorney Curtis and that, as a nonparty, Curtis would not have a right to obtain review of the order at a later time in the proceeding (id. at pp. 464-465), the Curtis court concluded that "the discovery order here is not collateral to the pending action" (id. at p. 465, italics added), observing that "[t]he trial court's order staying the underlying action pending resolution of Curtis's appeal underscores the centrality of the discovery issue to the underlying action." (Ibid.) Accordingly, the Curtis court dismissed the appeal. (Ibid.)
However, the Curtis court considered five factors derived from Olson v. Cory (1983) 35 Cal.3d 390, 401, to conclude that it was appropriate to treat the appeal as a petition for a writ of mandate:" '(1) requiring the parties to wait for a final judgment might lead to unnecessary trial proceedings; (2) the briefs and record included, in substance, the necessary elements for a proceeding for a writ of mandate; (3) there was no indication the trial court would appear as a party in a writ proceeding; (4) the appealability of the order was not clear; and (5) the parties urged the court to decide the issues rather than dismiss the appeal.'" (Curtis, supra, 62 Cal.App.5th at p. 465, quoting Hall v. Superior Court (2016) 3 Cal.App.5th 792, 807.)
Like the order at issue in Curtis, the February 5, 2021 order compelling Ildiko's deposition resolved all of the issues in the case as to nonparty Ildiko and, as a nonparty, Ildiko will not have a right to obtain review of the order at the conclusion of the proceedings in the trial court. (See Curtis, supra, 62 Cal.App.5th at pp. 464-465.) However, like Curtis, the discovery that is sought pertains to the merits of the action, and thus, cannot be deemed collateral to the action. (Id. at p. 465.) Accordingly, we conclude that the February 5 order is not appealable, and we dismiss the March 4, 2021 appeal.
As outlined in part II.B, ante, Darren sought to take Ildiko's deposition in order to obtain evidence as to "[Claudia's] and Darren's assets, interests, and access to funds in particular, which are significant factors in setting spousal support."
We also dismiss the January 12, 2021 appeal from the November 4, 2020 minute order compelling Ildiko's deposition. Pursuant to rule 8.104(c)(2), "The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed." (Italics added.) Rule 8.104(d)(1) provides, "A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment." "As used in . . . (d), "judgment" includes an appealable order if the appeal is from an appealable order." (Rule 8.104(e).) In this case, the November 4, 2020 minute order directed that a written order be prepared, and on February 5, 2021 the court filed a final order. While we would have treated the January 12, 2021 appeal as having been taken "immediately after," the filing of the February 5, 2021 final order if the February 5 order been appealable (see rule 8.104(c), (d)), because the February 5 order is not an appealable order, the November 4 minute order also is not appealable.
However, all of the factors that the Curtis court noted supported writ review in that case similarly support review in this case. In particular, as the Curtis court observed with respect to the nonparty attorney seeking review in that case, "[t]he lack of an adequate remedy at law . . . supports our consideration of. . . [the] appeal as a petition for writ of mandate." (Curtis, supra, 62 Cal.App.5th at p. 466.)
Accordingly, we treat Ildiko's March 4, 2021 appeal as a petition for writ of mandate and proceed to a review of the merits of the February 5, 2021 order compelling her deposition in parts III.B and III.C, post.
B. Darren was not required to personally serve Ildiko with his request for order pursuant to rule 5.92(f)
Ildiko claims that the trial court made an "egregious decision," in compelling her deposition because, according to Ildiko, "Darren failed to comply with [r]ule 5.92(f), which requires him to personally serve his request for order." (Boldface omitted.)
Because Ildiko's claim turns on an interpretation of rule 5.92(f), we review her claim de novo. (See Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal.App.5th 170 ["We conduct a de novo review of a trial court's interpretation of the California Rules of Court"].)
1. The law governing our interpretation of rule 5.92(f)
"' "The rules applicable to interpretation of the rules of court are similar to those governing statutory construction. [Citation.] Under those rules of construction, our primary objective is to determine the drafters' intent. [Citation.]" [Citation.] "If the rule's language is clear and unambiguous, it governs. [Citation.]" '" (All of U.S. or None-River side Chapter v. Hamrick (2021) 64 Cal.App.5th 751, 772-773.)
2. The text of the rule 5.92(f)
As noted in part II.D, ante, rule 5.92(f) provides in relevant part:
"(f) Request for order; service requirements
"(1) The Request for Order (form FL-300) and appropriate documents or orders must be served in the manner specified for the service of a summons . . ., including personal service, if:
"[¶]....[¶]
"(B) The responding party has not yet appeared in the case as described in rule 5.62." (Italics added.)
Rule 5.62 provides: "(a) Use of terms In a family law proceeding, the term 'request for order' has the same meaning as the terms 'motion' or 'notice of motion' when they are used in the Code of Civil Procedure. "(b) Appearance Except as provided in Code of Civil Procedure section 418.10 and Family Code sections 2012 and 3409, a respondent is deemed to have made a general appearance in a proceeding when he or she files: "(1) A response or answer; "(2) A request for order to strike, under section 435 of the Code of Civil Procedure; "(3) A request for order to transfer the proceeding under section 395 of the Code of Civil Procedure; or "(4) A written notice of his or her appearance. "(c) Notice required after appearance After appearance, the respondent or his or her attorney is entitled to notice of all subsequent proceedings of which notice is required to be given by these rules or in civil actions generally. "(d) No notice required Where a respondent has not appeared, notice of subsequent proceedings need not be given to the respondent except as provided in these rules." Neither Ildiko nor Darren contends that any of the statutes referred to in rule 5.62 has any relevance to this appeal.
3. Rule 5.92(f) did not require Darren to personally serve Ildiko with his request for order, because Ildiko is not a party to the underlying dissolution proceeding
Ildiko argues, "Where the responding party has not yet appeared in the case, [r]ule 5.92 requires any request for order to be personally served." (Italics added.)
As Ildiko's argument points out, the text of rule 5.92(f)(1)(B) refers to the "responding party." (Italics added.) Further, rule 5.16 specifically defines the "parties" to a marital dissolution proceeding, providing in relevant part:
"(a) Designation of parties
"(1) In cases filed under the Family Code, the party starting the case is referred to as the 'petitioner,' and the other party is the 'respondent.'
"[¶]...[¶]
"(b) Parties to proceeding
"(1) The only persons permitted to be parties to a proceeding for dissolution, legal separation, or nullity of marriage are the spouses, except as provided in (3), a third party who is joined in the case under rule 5.24, or a local child support agency that intervenes in the case."
It is undisputed that Ildiko has not been joined as a party to the action.
As Ildiko notes in her brief on appeal, "[s]he is not a party," to the dissolution proceeding.
Ildiko cites no authority, and we are aware of none, in which a court has interpreted the word "party" in rule 5.92(f) to apply to a nonparty such as herself. Nor does Ildiko provide any reasoned argument for why we should interpret rule 5.92(f) in such a fashion.
Instead, Ildiko contends that the trial court erred in "disregard[ing]" rule 5.92, and "instead rel[ying] on [s]ection 2020.220[, subdivision (c)] . . . ." We agree with the trial court that section 2020.220, subdivision (c), and not rule 5.92, provides the applicable rule. Section 2020.220 provides in relevant part:
"(c) Personal service of any deposition subpoena is effective to require all of the following of any deponent who is a resident of California at the time of service:
While Ildiko does not expressly contend that section 2020.220, subdivision (c) is inapplicable because she is allegedly not a resident of California for purposes of that statute, she does argue, "Setting aside the trial court's error in finding Ildiko a resident of California . . ., the trial court erred in exclusively applying [s]ection 2020.220 in this family law matter." To the extent that this argument may be read as a contention that Section 2020.220, subdivision (c) does not apply because Ildiko is not a resident of California, we reject it. As discussed in part III.C, post, we conclude that Ildiko is a resident of California for purposes of section 1989 and thus may be "obliged to attend as a witness," at a deposition. As noted in footnote 20, ante, Ildiko does not present any argument that a different analysis should apply in determining whether she was a resident for purposes of considering "her refusal to be sworn," under section 2020.220, subdivision (c).
"(1) Personal attendance and testimony, if the subpoena so specifies.
"(2) Any specified production, inspection, testing, and sampling.
"(3) The deponent's attendance at a court session to consider any issue arising out of the deponent's refusal to be sworn, or to answer any question, or to produce specified items, or to permit inspection or photocopying, if the subpoena so specifies, or specified testing and sampling of the items produced." (Italics added.)
It is undisputed that Ildiko was personally served with a deposition subpoena. Thus, pursuant to section 2020.220, subdivision (c), the subpoena was effective to require Ildiko to "attend[ ] at a court session to consider any issue arising out of [Ildiko's] refusal to be sworn."
It is also undisputed that: Ildiko was provided with notice of the hearing on Darren's request for order, she filed an opposition to the request, and her counsel attended the hearing at which the court ruled on the order. (See pts. II.D, G, ante.)
We are not persuaded by Ildiko's argument that "the more specific rules governing family law matters clearly supersede the general civil rules." The applicable rule of court governing a request for an order pertaining to discovery in a family law matter, rule 5.12-not cited by Ildiko in either this court or in the trial court-expressly incorporates, rather than supersedes, the general civil rules. Article 4 of Chapter 1 of Division 1 of the Family and Juvenile Rules, is titled "Discovery," and rule 5.12 therein is titled, "Request for Order Regarding Discovery." Rule 5.12(b) provides:
Rule 5.12 is consistent with Family Code section 210, which provides: "Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure [governing vexatious litigants], apply to, and constitute the rules of practice and procedure in, proceedings under this code." (Accord In re Marriage of Boblitt (2014) 223 Cal.App.4th 1004, 1022 ["No statute or rule of court exempts a marital dissolution proceeding from the application of the Civil Discovery Act (Code Civ. Proc, § 2016.010 et seq.). Accordingly, the provisions of the Civil Discovery Act . . . apply to such proceedings"].)
"(b) Applicable law
"A request for order regarding discovery in family court is subject to the provisions for discovery motions under Code of Civil Procedure sections 2016.010 through 2036.050"
Rule 5.12(c) provides that, "Discovery proceedings brought in a case under the Family Code must comply with applicable civil rules for motions, including: [¶]... [¶] (4) Service of motion papers on nonparty deponent (rule 3.1346)." Rule 3.1346 in turn provides: "A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record." (Italics added.) Thus, on their face, neither rule 5.12(c)(4) nor rule 3.1346 appears to apply to Darren's request for an order to compel Ildiko to appear at a deposition. (See pt. II.B, ante [describing Darren's request for order compelling Ildiko's deposition].) However, we need not definitively address this issue because Ildiko did not cite either rule 5.12(c)(4) or rule 3.1346 in the trial court or in this court, nor has she raised any argument based on these rules.
Section 2020.220, is among the Code of Civil Procedure sections contained within "Code of Civil Procedure sections 2016.010 through 2036.050."
Accordingly, we conclude that Darren was not required to personally serve Ildiko with his request for order pursuant to rule 5.92(f).
C. The trial court did not err in determining that Ildiko is a resident of California for purposes of the trial court's subpoena jurisdiction
Ildiko contends that the trial court erred in concluding that she is a "resident" of California for purposes of the trial court's subpoena jurisdiction pursuant to section 1989.
Although Ildiko did not raise this contention in the trial court, and her trial counsel expressly disavowed raising any argument as to whether "[Morelli] applies or not," at the hearing on Darren's request for order, we nevertheless exercise our discretion to consider Ildiko's contention on the merits, notwithstanding any possible forfeiture. We exercise such discretion because Claudia raised the issue of whether Ildiko was a resident in the trial court (see pt. II.C, ante), the trial court issued a ruling on the issue (see pt. II.G, ante), and there is case law that supports the proposition that "no objection," is necessary to preserve a claim that an order violates section 1989. (Amoco Chemical Co. v. Certain Underwriters at Lloyd's of London (1995) 34 Cal.App.4th 554, 559.)
1. Standards of review
We review de novo the trial court's ultimate determination that Ildiko is a resident of California subject to the trial court's subpoena jurisdiction, while reviewing any disputed factual issues underlying such conclusion for substantial evidence. (Cf. Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 17 (Burdick).) As the Burdick court stated in outlining the standard of review to be applied to the review of a trial court's personal jurisdiction determination, "When the evidence of jurisdictional facts is not in dispute, the issue whether the defendant is subject to personal jurisdiction is a legal question subject to de novo review. [Citation.] When evidence of jurisdiction is in dispute, we accept the trial court's resolution of factual issues, draw all reasonable inferences in support of the trial court's order, and review the trial court's determination of factual issues for substantial evidence." (Burdick, supra, at p. 17.)
Neither party has cited, and our own research has not uncovered, any cases specifically addressing the standards of review to be applied to the review of a trial court's determination of its subpoena jurisdiction. However, we conclude that while the Burdick court was discussing the standards of review to be applied when reviewing whether a trial court has personal jurisdiction of over a defendant (Burdick, supra, 233 Cal.App.4th at p. 17), the same standards of review should govern the review of whether a trial court has subpoena jurisdiction of over a witness because both determinations involve an ultimate legal question that is premised on the determination of various factual predicates. However, as noted in footnote 36, post, the factors that determine whether a trial court may exercise subpoena jurisdiction over a witness are entirely distinct from those that govern whether a trial court may exercise personal jurisdiction over a defendant. (Sink, California Subpoena Handbook (Nov. 2021) § 3:2, [discussing the differences and interactions between a state court's in personam jurisdiction and its extended subpoena jurisdiction].) At oral argument, both parties stated that the abuse of discretion standard of review applies to a trial court's determination of residency for purposes of determining subpoena jurisdiction. Although we are not aware of any case law that supports this proposition, for the reasons stated in this section, we conclude, under any standard of review, that the trial court did not err in determining that Ildiko was a resident of California for purposes of the trial court's subpoena jurisdiction.
2. Governing law
a. Section 1989
Section 1989 provides:
"A witness, including a witness specified in subdivision (b) of Section 1987, is not obliged to attend as a witness before any court, judge, justice or any other officer, unless the witness is a resident within the state at the time of service."
Section 1987, subdivision (b) authorizes the service of specified written notice in lieu of a subpoena on "a party to the record of any civil action or proceeding or of a person for whose immediate benefit an action or proceeding is prosecuted or defended or of anyone who is an officer, director, or managing agent of any such party or person." (Italics added.) Neither Ildiko nor Darren contends that section 1987, subdivision (b) has any relevance to this proceeding.
"[S]ection 1989 applies not only to those witnesses obliged to attend as witnesses in court proceedings, but those witnesses obliged to give testimony by deposition before deposition officers." (Toyota Motor Corp. v. Superior Court (2011) 197 Cal.App.4th 1107, 1113 (Toyota).) Specifically, "section 1989 restricts a deponent from being required to attend a California deposition if the deponent is not a California resident," at the time of the service of the subpoena. (Ibid., italics omitted.)
b. Morelli
As Ildiko notes in her brief on appeal, there is a single California case that has considered the "contours of residency for purposes of California's subpoena jurisdiction"-Morelli, supra, 11 Cal.App.3d 819. As Ildiko acknowledges, Morelli adopted a "somewhat relaxed standard" for "residency" under section 1989. The Morelli court described that standard as follows:
At the time the Morelli court issued its decision, former section 1989 provided, "A witness is not obliged to attend as a witness before any court, judge, justice, or any other officer, out of the county in which he resides, unless the distance be less than one hundred fifty miles from his place of residence to the place of trial." (Stats. 1957, ch. 1560, § 1, p. 2918.)
"[T]he subpoena section [i.e., section 1989] envisages nothing more than an abode, possibly combined with a professional base of operations, which gives the 'resident' a sojourning connection with the area of a type and duration related to the status of a witness and which makes it not a hardship for him to attend the legal proceedings at which he is commanded to appear." (Morelli, supra, at p. 831.)
The Morelli court applied this standard in concluding that the plaintiffs in that case had presented a prima facie case that Dr. Dino Morelli, an "intended nonparty expert witness in a personal injury action" (Morelli, supra, 11 Cal.App.3d at p. 826) was a resident of Los Angeles, California for purposes of the trial court's subpoena jurisdiction. (Id. at p. 832.) The Morelli court reasoned in part:
"The information furnished by plaintiffs to the superior court, that Morelli had a Pasadena post office address and a local telephone number, that defendants had furnished these to plaintiffs, that Morelli carried the title of 'Dr.' and was available at California Institute of Technology, that defendants had retained Morelli to make, and that he had made, a study and report about the involved vehicle a year before, that the established and well-known Los Angeles law firm which represented plaintiffs . . ., which would be knowledgeable concerning the residential aspect of subpoena jurisdiction, determined and directed that Morelli should be subpoenaed for attendance at the deposition proceeding at its officer [sic], that Morelli, when served, demanded fees, [fn. omitted] and was paid and kept $5, [fn. omitted] does, we feel, as previously indicated, make a prima facie showing of residence of Morelli in Los Angeles County." (Ibid)
In the omitted footnotes, the Morelli court discussed the law providing for witness fees applicable in that case. Neither Ildiko nor Darren has referred to any law governing witness fees in this case.
In explaining the basis for its conclusions, the Morelli court reasoned:
" 'Residence, as used in the law, is a most elusive and indefinite term.' [Citation.] The writer in Corpus Juris Secundum says that the word 'is like a slippery eel.' [Citation.] It has various meanings for varying legal concepts and under different statutes, depending upon the purpose involved. [Citations.] 'On . . . occasions where the term is employed in statutes . . ., it. . . involves physical presence in a place without requiring the intent to make it one's home which is involved in the domicile concept.' [Citations.] It can mean dwelling in a place for some continuance of time for business (note Morelli's status at California Institute of Technology) or other purposes. [Citation.] It does not depend on the manner of living which may be housekeeping or lodging. [Citation.] 'The word "residence" has been held to be equivalent to . . . "abode" [citation], [or even] "address" [citation].' [Citation.] (Note reference to Morelli's post office box and telephone number in supporting papers.) One may have residences simultaneously in the city and the country [citation] or for nine months in one place and three months in another. [Citations.] A person may have several residences at the same time and for different purposes. [Citation.] It, of course, can be different from domicile, which is the most settled and permanent connection and of which a person has but one." (Morelli, supra, 11 Cal.App.3d at pp. 830-831.)
3. Application
Ildiko claims that the "trial court misapplied Morelli in subjecting [her] to California's subpoena jurisdiction." (Boldface omitted.) Specifically, Ildiko argues that "the [Morelli] court relied heavily on facts [pertaining to Dr. Morelli] that demonstrated an active participation in the underlying action and a robust presence in California," and she maintains such evidence is not present in this case. (Italics added.) For the reasons discussed below, we conclude that there is substantial evidence of Ildiko's active participation in the underlying action and her presence in California sufficient to support the trial court's determination that she was within the court's subpoena jurisdiction so as to compel her to attend a videoconference deposition.
To begin with, there is substantial evidence to support a finding that Ildiko has actively participated in this case. While Ildiko asserts in her brief, "importantly, [Ildiko] has not affirmatively participated in the underlying action except as necessary to specially appear and defend her rights against Darren's subpoena," (italics added) Darren offered evidence that Ildiko "filed a declaration to oppose [Darren's] request that a bifurcated divorce judgment be entered." Indeed, Ildiko acknowledges elsewhere in her brief on appeal having participated in this action through the "submission of a declaration in support of an opposition to one of Darren's filings in the case."
Further, the trial court could reasonably find that Darren presented evidence that Ildiko actively participated in the Delaware Case, including issuing a subpoena in the Delaware Case in California. Specifically, Darren presented evidence that, in the Delaware Case, Ildiko's counsel issued a subpoena on Darren's counsel in California and sought Darren's records in California. (See pt. II.B, ante.) Darren also presented evidence from which the trial court could reasonably find that the Delaware Case is related to this action. Specifically, Darren's May 15, 2020 declaration stated that the Delaware Case serves as a "proxy divorce case," and he outlined the nature of that action in a manner from which the trial court could reasonably find that the Delaware Case is related to this action. (See pt. II.B, ante.) In sum, evidence of Ildiko's active participation in this case as well as in the related Delaware Case supports the trial court's conclusion that she is subject to the court's subpoena jurisdiction because she was a resident of California at the time of service of the subpoena. (See Morelli, supra, 11 Cal.App.3d at p. 832 [evidence of witness's participation in the case supported determination that witness was subject to the trial court's subpoena jurisdiction].)
Darren also presented evidence that Ildiko has a significant physical presence in California. Like Morelli, Ildiko maintains a post office box in California. (See Morelli, supra, 11 Cal.App.3d at p. 831 [" 'The word "residence" has been held to be equivalent to . . . "abode" [citation], [or even] "address" [citation].' [Citation.] (Note reference to Morelli's post office box ... in supporting papers)"].) In addition, Darren presented evidence that Ildiko frequently comes to California to visit family, that she stays for extended periods of time on her trips, and that she often conducts business while in California. Specifically, Darren offered a declaration that states:
While Claudia disputed this evidence in the trial court, Ildiko did not discuss this evidence in either her opposition or in her declaration. In any event, we review the record for substantial evidence with respect to the facts underlying the trial court's determination that Ildiko is subject to the court's subpoena jurisdiction. (See pt. III.C.l, ante.) Darren's declaration constitutes substantial evidence.
"Two of [Ildiko's] three children, and two of three sets of [Ildiko] grandchildren, all live here in Southern California, and [Ildiko] frequently comes to visit them, staying here for weeks at a time on those trips, and often conducting business." (Italics added.)
Ildiko's frequent physical presence in California, including at the time she was served with Darren's deposition subpoena in this case, also supports the trial court's determination that she may be deemed a resident of California under section 1989. (See Morelli, supra, 11 Cal.App.3d at p. 830 [stating that residency can "mean dwelling in a place for some continuance of time for business ... or other purposes," and stating that residency "does not depend on the manner of living which may be housekeeping or lodging"]; see also Sink, California Subpoena Handbook, supra, § 1:5. Residence [stating that under Morelli, "residence contemplated by [section 1989] is a good deal looser than domicile," and "requires nothing more than physical presence: living in a place for 'some continuance of time,' for business purposes or other purposes, without necessarily intending to make it one's home"].)
We are not persuaded by Ildiko's contrary contention that "visiting family on a tourist visa cannot be sufficient to establish California residency for [purposes of] subpoena jurisdiction." Ildiko supports this contention with citations to cases involving the question whether a California court had personal jurisdiction over a nonresident defendant that were based on an analysis of the entirely distinct factors relevant to that legal question. (Citing Kourkene v. American BBR, Inc. (9th Cir. 1963) 313 F.2d 769, 772-773; Judd v. Superior Court (1976) 60 Cal.App.3d 38, 45; Frederick Fell, Inc. v. Superior Court (1973) 36 Cal.App.3d 93, 96). However, Ildiko presents no reasoned argument as to the applicability of these personal jurisdiction cases to the question of whether the trial court may exercise subpoena jurisdiction as to her, and we see none.
Finally, the Morelli court stated that the depth of a witness's residential connection required by section 1989 is measured by whether such residency "makes it not a hardship for [the witness] to attend the legal proceedings at which he is commanded to appear." (Morelli, supra, 11 Cal.App.3d at p. 831, italics added.) In other words, the Morelli court envisioned a balancing analysis in which the stronger a prospective witness's residential connection is to an area, the less hardship matters in determining whether a witness is a "resident" for purposes of section 1989. Conversely, where residential ties are more tenuous, considerations of hardship become more significant in determining residency under the statute. The Morelli court's reasoning is supported by the fact that section 1989's statutory history indicates that its primary purpose has long been to limit the hardship that a witness will experience as a result of being required to attend a legal proceeding far from the witness's residence. (See Toyota, supra, 197 Cal.App.4th at pp. 1114, 1117-1118 [describing section 1989's statutory history].) In this case, given that the trial court's order provides that Ildiko may attend the deposition via videoconference, the trial court could reasonably determine that Ildiko's residential connections to California were sufficient to outweigh any hardship that she might suffer from having to comply with the subpoena.
As recounted by the Toyota court, as initially enacted in 1872, section 1989 limited the distance that a witness could be obliged to travel to" '30 miles from his place of residence ....'" (Toyota, supra, 197 Cal.App.4th at p. 1114). The Legislature thereafter amended section 1989 to increase the mileage limitation on several occasions: to 50 miles (in 1915), to 100 miles (in 1935), to 150 miles (in 1957), and to 500 miles (in 1980). (Ibid.) Finally, in 1981, the Legislature amended section 1989 to its present form. (Id. at p. 1117-1118.)
Thus, we reject Ildiko's contention that "it would unquestionably be a hardship to force her to attend legal proceedings in California from her current residence in El Salvador," because under the court's order she will not be required to travel from El Salvador and personally attend legal proceedings in California. (Italics added.)
We also reject Ildiko's argument that the trial court "brushed [the] hardship factor aside because it ordered Ildiko to appear by videoconference, not in person." As noted in part II.E, ante, in his reply brief in the trial court, Darren requested that the deposition be taken via videoconference, and the fact that the trial court lessened the potential hardship to Ildiko by ordering a particular method of taking the deposition does not demonstrate that the court "brushed [the] hardship factor aside."
Further, the record indicates that trial court carefully considered this issue at the hearing on Darren's request for order. During the hearing, Ildiko's counsel stated that he was "concerned" with the argument that the availability of remote appearances should be used to justify permitting California to exercise subpoena jurisdiction over "anybody in the world who has an Internet connection." The trial court responded in part: "I think that, if I'm understanding [Darren's counsel] correctly -- and he can certainly let me know if I've mischaracterized his position -- it would be yes, actually. It does apply to literally anybody in the world. However, that would only be under circumstances in which the deponent is a resident of the state of California." (Italics added.) Darren's counsel agreed with the trial court's summary of his position, arguing in part, "We're just addressing the fact that on the hardship component that getting that deposition to actually occur in the current circumstances is easier, but the jurisdiction question is already baked into the cake . . . ."
Ildiko's additional arguments that she is not subject to California's subpoena jurisdiction are not persuasive. Ildiko contends that it is "irrelevant" that her children spent portions of their lives in San Diego, and she maintains that, "whether [she] has family members in California should not factor in the analysis." We disagree. Evidence that two of her children currently live in California, and that Ildiko frequently visits these two children in California for extended periods of time constitutes evidence of, as Ildiko states, "Ildiko's personal circumstances," (italics added) relevant to her California residency at the time of the service of the subpoena, as is required under section 1989.
Ildiko also argues that there is no evidence to support the trial court's statements made during its oral ruling that she has "maintained two households here in Rancho Santa Fe," or that she was a "member[ ] of clubs and associations locally." There is evidence that Ildiko previously owned a residence in Rancho Santa Fe and currently maintains a post office box in Rancho Santa Fe. There also is evidence that Ildiko has spoken at a local rotary club "in the past few years." Further, Ildiko fails to demonstrate, as is required, that any minor errors made by the trial court in its oral characterization of the evidence, which were not repeated in the trial court's final order, constitute prejudicial error. (See, e.g., In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1051 ["An appellant in a civil case establishes an error was prejudicial by showing there is 'a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached' "].)
Finally, Ildiko states that "while she does have a P.O. box in California, [she] only maintains it because it is not safe to receive mail from the United States at her home in El Salvador." Even assuming that the trial court credited Claudia's explanation for the reason that Ildiko maintains a post office box in California, We agree with Darren that "the undisputed bottom line is that [Ildiko] does, in fact, actively continue to receive mail at the Rancho Santa Fe post office box," and such evidence weighs in favor of a finding of California residency for purposes of section 1989. (See Morelli, supra, 11 Cal.App.3d at p. 831.)
While Claudia offered a declaration in which she states that this is the reason Ildiko maintains a California post office box, Ildiko did not offer any evidence in the trial court with respect to this issue.
Accordingly, we conclude that the trial court did not err in determining that Ildiko was a resident of California for purposes of the trial court's subpoena jurisdiction.
IV. DISPOSITION
The January 12, 2021 appeal from the November 4, 2020 minute order is dismissed.
The March 4, 2021 appeal is dismissed, and the appeal is deemed a petition for writ of mandate. The March 4, 2021 petition for writ of mandate seeking to reverse the February 5, 2021 order compelling Ildiko's deposition is denied.
Darren is to recover his costs in this proceeding.
WE CONCUR: HUFFMAN, Acting P. J., DO, J.