Judge Ashfaq G. Chowdhury, Case Number: 24NNCV02565, Date: 2025-04-24 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV02565, Date: 2025-04-24 Tentative Ruling

Hearing Date: 03/20/2025 – 8:30am
Case No. 24NNCV03633
Trial Date: UNSET
Case Name: GUISHENG XU, an individual, v. JIAQI HAN, an individual; FUZHOU LIU, an individual; YINMING LIU, an individual; FIRST STOP AUTO LLC, a California limited liability company; and DOES 1 to 10, inclusive

TENTATIVE RULING ON MOTION TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT

RELIEF REQUESTED¿¿¿
“Defendant YINMING LIU will and hereby does move this court for an order vacating and setting aside the default entered on October 11, 2024, and subsequent default judgment entered on February 4, 2025, on the grounds:

a) the Summons and Complaint purportedly served on him by substituted service on August 27, 2024, were not properly served on him and hence the default and default judgment are void;

b) alternatively, on the grounds set forth in Code of Civil Procedure section 473.5.

A copy of Defendant’s proposed Demurrer is attached to this Motion as Exhibit “C.”

The relief requested by this Motion is based upon this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the declarations of Defendant Yinming Liu and Eugene R. Long, all pleadings and documents currently on file with the Court as well as such other oral or documentary evidence as may be presented at the time of hearing on this Motion.”

(Def. Mot. p. 2.)

PROCEDURAL

Moving Party: Defendant, Yinming Liu (Defendant or Movant)

Opposing Party: Plaintiff, Guisheng Xu

Proof of Service Timely Filed (CRC, Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Moving Papers: Notice/Motion [filed 2/10/2025]; Amended Notice/Motion [filed 2/24/2025];

Opposition Papers: Opposition

Reply Papers: Reply

BACKGROUND

Plaintiff, Guisheng Xu, filed the instant action on 8/19/2024 against Defendants – (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, (4) First Stop Auto LLC, a California limited liability company, and (5) Does 1 to 10, inclusive.

Entry of default was entered against all of the non-Doe Defendants on 10/11/2024.

Does 1 to 10 were dismissed from the Complaint on 10/29/2024.

On 02/04/2025, default judgment was entered against (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, and (4) First Stop Auto LLC, a California limited liability company.

For purposes of this hearing, the Court considers Defendant, Yinming Liu’s, amended notice/motion filed on 2/24/2025 and not the earlier filed notice/motion that was filed on 2/10/2025.

ANALYSIS
Preliminary Matter

In the instant action, Plaintiff filed four proofs of substituted service on 8/29/2024 for all of the named Defendants in this action.

Moving Defendant, Yinming Liu, moves for an order to vacate and set aside the default and default judgments entered against him on the basis that he was not properly served.

Movant appears to move pursuant to CCP § 473(d), and in the alternative, § 473.5.

The Court notes that neither party’s papers is a model of clarity. For example, neither party makes clear why § 473(d) or § 473.5 is or is not the appropriate statute to move under to vacate the default/default judgment. Generally speaking, Defendant argues that service upon him was improper, and Plaintiff argues that service upon Defendant was proper. To the Court, this motion appears to be akin to a motion to quash service of summons. Either way, since Defendant’s motion does not make clear why § 473(d) or § 473.5 is the appropriate statute, and since Plaintiff did not oppose Defendant’s motion on the grounds that those two statutes are not the proper statutes, the Court will assume Defendant moved under the proper statute.

Substantive

On 8/29/2024, Plaintiff filed a proof of service of summons that alleged substituted service on Defendant, Yinming Liu, on 8/27/2024.

Defendant, Yinming Liu, argues that service upon him was not proper.

Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.)

As to how Defendant believes that service upon him was improper is not entirely clear. Many times Defendant asserts arguments without citing legal authority. Or at times, Defendant will make reference to legal authority, but in no clear manner does Defendant explain how his argument is tied to the legal authority that he cited.

For example, Defendant first appears to argue that service upon him was not valid because Plaintiff did not personally serve him.

The argument that service was improper because Defendant was not personally served appears to be unavailing for several reasons.

First, Plaintiff’s proof of service lists service upon Defendant via substituted service; it does not list service upon Defendant via personal service.

Second, it does not appear that Defendant has to be personally served, because substituted service is an alternative to personal service.

As explained in American Express Centurion Bank v. Zara:

The Code of Civil Procedure specifies the various methods by which service may be made upon defendants who are sued as individuals.

The method described as “personal service” means service that is accomplished “by personal delivery of a copy of the summons and of the complaint to the person to be served.” (§ 415.10.) If the complaint and summons were personally delivered to, i.e., handed to, defendant then he could be said to have been “personally served.”

A defendant may also be “personally” served by delivering a copy of the summons and complaint to an agent authorized to accept service on behalf of that defendant. (§ 416.90; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶¶ 4:128 to 4:132, pp. 4–19 to 4–21; (rev. # 1, 2010) ¶ 4:184, p. 4–27 (rev. # 1, 2004) (hereafter Weil & Brown, Civil Procedure Before Trial).) An authorized agent might include, for example, an attorney who has been expressly authorized to accept service, or a sheriff or jailer having custody of a prisoner. (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:128, p. 4–19, ¶¶ 4:130.2, 4:132, pp. 4–20 to 4–21.)

Another alternative available for serving individual defendants is what is commonly known as “substitute service.” Substitute service on an individual is accomplished by “leaving a copy of the summons and complaint **103 at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address ..., at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” (§ 415.20, subd. (b).)

However, an individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint “cannot with reasonable diligence be personally delivered” to the individual defendant. (§ 415.20, subd. (b); Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801, 152 Cal.Rptr. 836.) Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “ ‘reasonable diligence.’ ” (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:196, p. 4–30.)

(American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Thus, Defendant’s argument that service was improper because he was not personally served is unavailing.

Substituted Service – Usual Place of Business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Further, Plaintiff’s proof of service checks a box for substituted service via business to “a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served.” The proof of service also indicates that the documents were left with “Jane Doe – Angela, refused last name (Gender: F Age: 35 Height : 6’0” Weight: 120 Race: Asian American Hair: Black Other: Hazel Eyes) Manager.”

Under CCP § 415.20(b), substitute service is effectuated when:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(CCP § 415.20(b).)

Defendant appears to be arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” and because service was not left with “a person apparently in charge of his or her office, place of business, or usual mailing address.”

Attached to the motion, the declaration of Defendant Yinming Liu is attached.

In relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic] by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

3. The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business. The building does not have any front desk person or onsite management office. The corporate defendant First Stop Auto LLC is a dormant entity with no revenue, employees, or operations. It does not have any manager, employees, or representatives at that address.

4. I first became aware of this lawsuit on January 2, 2025, upon receipt of a WeChat message from defendant Fuzhou Liu. A review of the lawsuit revealed that it concerns a dispute concerning an unpaid loan of $50,000 between two individuals, Plaintiff and Mr. Fuzhou Liu. It has nothing to do with me as an individual or the corporate defendant, First Stop Auto LLC.

5. On February 4, 2025, I appeared at the Court and sought to express my position to the Court. The Court advised me that it cannot give me any legal advice and the only advice to me was to retain a lawyer to file a motion for relief. Accordingly, I have retained the law firm of WHGC, PLC to file this Motion.

(Liu Decl. ¶¶ 2-5.)

To the extent that Defendant is arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” Defendant’s declaration appears to address this in ¶ 3 of the Liu declaration wherein Liu states, “The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business.” (Liu Decl. ¶ 3.)

In Opposition, Plaintiff argues that Defendant Yinming Liu was in fact properly substitute served at his “usual place of business.” Plaintiff argues that Liu is making misrepresentations to the Court and that the 314 Garvey address is in fact Liu’s “usual place of business.”

To support this argument, Plaintiff attaches the declaration of Plaintiff’s attorney (Tom F.Y. King), along with Exhibits A-E cited in King’s declaration.

King states as follows:

2. In or about August 2024, I searched, downloaded, and printed a statement of information filed with California Secretary of State filed by Yinming Liu on behalf First Stop Auto LLC on August 13, 2024. Attached hereto as Exhibit A is a true and correct copy of the statement of information I obtained from California Secretary of State website. It shows Yingming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC, located at 314 E Garvey Ave, Monterey Park, CA 91755.

3. Previously, before Yinming Liu filed the August 13, 2024 statement, I also searched and download a statement of information Yinming Liu filed with California Secretary of State the year before on July 5, 2023, which also shows Yinming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC located at 314 E Garvey Ave, Monterey Park, CA 91755. A true and correct copy of said statement is attached hereto as Exhibit B.

4. In January 2025, after the three individual defendants appeared in court to try to argue their case on January 16, 2025, I searched, found, and download from California Secretary of State website a statement of information filed by Yinming Liu on January 3, 2025 moving the company address to 797 E Arrow Hwy, Azusa, CA 91702, a copy of which is attached hereto as Exhibit C. I also found and downloaded a statement of information filed on January 16, 2025 by co-defendants Jiaqi Han moving the company address back to 314 E Garvey Ave, Monterey Park, CA 91755 and removing Yinming Liu's name from the company. A true and correct copy of said statement is attached hereto as Exhibit D.

5. As a result of the two successively filed statement of information First Stop Auto LLC filed with California Secretary of State in January 2025, all previously filed statement of information were purged from the public record. I inquired on this matter online and discovered that it is the policy of California Secretary of State to only keep the two most recently filed statement of information for an entity for public record. Attached hereto are search results from Google based on the search terms "California Secretary of State purging prior statement of information." The search result shows a general result followed by links to specific webpage results. Attached hereto as Exhibit E is a page from the general search result and a specific search results from California Secretary of State website.

(King Decl. ¶¶ 2-5.)

However, even assuming the truth of King’s declaration and the attached exhibits, Plaintiff’s argument is not on point and appears to miss the mark.

For example, to the extent that the California Secretary of State lists Yinming Liu as manager, member, CEO, and agent for service of process at the 314 E Garvey address, that information is applicable to First Stop Auto LLC. That information says nothing about the Defendant as an individual that is filing the instant motion. The instant proof of service that Defendant is arguing is improper is the proof of service as to the individual, Yinming Liu. Yinming Liu is arguing that the 314 address is not his usual place of business. At best, the information attached from the California Secretary of State would maybe seem to indicate that Yinming Liu could accept service at the 314 E Garvey address for First Stop Auto LLC since he was listed as agent of service of process for First Stop Auto LLC. However, to reiterate, that information says nothing about where Yinming Liu, the individual’s usual place of business is. At best, it may show where First Stop Auto LLC’s usual place of business is. Ultimately, First Stop Auto LLC is not moving to vacate default/quash service of summons. Here, moving Defendant is Yinming Liu the individual.

At best, maybe the successive filings with the Secretary of State tests Liu’s credibility for changing the address of First Stop Auto LLC and changing the name of the agent for service of process. However, again, even assuming there were bad faith, the Court fails to see how Plaintiff’s arguments addresses the usual place of business of the moving Defendant, Yinming Liu, the individual.

Despite all this, in Defendant’s Reply Defendant confusingly argues that even if 314 E Garvey were Liu’s place of business, service was not proper because the crucial question is whether service was proper where Plaintiff served an unknown individual at a location that housed several other businesses where there is no indication that the individual ever informed Liu of service.

Therefore, the Court will hear argument from the parties about the “usual place of business” of Defendant.

Substituted Service – Person Apparently in Charge of his or her office, place of business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Under CCP § 415.20(b), substitute service is effectuated when:

(CCP § 415.20(b).)

Defendant argues that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship.

Further, in relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic]by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

(Liu Decl. ¶¶ 2-5.)

Defendant’s argument – that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship – is confusing because it isn’t entirely clear what portion of § 415.20(b) Defendant is arguing that Plaintiff did not comply with.

Presumably, Defendant is trying to argue that “Jane Doe – Angela” was not “a person apparently in charge of his or her office, place of business,” and thus service was improper. Defendant’s declaration does not state that Jane Does/Angela was not “a person apparently in charge of his or her office or place of business” in any explicit terms. Instead, the Liu declaration states in relevant part, “I do not know this individual nor do I have any personal or business relationship with her.” (Liu Decl. ¶ 2.)

In Opposition, Plaintiff does not address Defendant’s argument regarding the individual that was allegedly served in any clear manner. Plaintiff’s Opposition seems to mainly contest that 314 E Garvey was in fact the usual place of business of Defendant. It seems like Plaintiff attempts to argue that Defendant is not credible based on the filing with the secretary of state because Defendant would know the people at the 314 E Garvey address because it is his address.

In Reply, Defendant argues that the key issue here is that Plaintiff served an unknown individual that housed several other businesses where there is no indication that the individual ever informed Liu of the service.

Here, the Court will hear argument. Defendant appears to be arguing, although not explicitly stated in Defendant’s motion or Defendant’s declaration, that “Jane Doe – Angela” was not a person apparently in charge of his or her office, or place of business. Opposition does not do much to contest this argument. Plaintiff’s Opposition seems to just be implying that Defendant would in fact know who Angela is because the 314 Garvey address is Defendant’s business. The Reply reiterates that Defendant has no idea who Angela is and that there is no evidence to suggest that she worked with or for Liu.

473.5

Under CCP § 473.5(a):

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(CCP § 473.5(a).)

Defendant argues that the Summons and Complaint did not result in actual notice to Liu for Liu to defend the action.

However, the Court notes that neither party’s arguments regarding § 473.5 adds any further substance to their arguments. Plaintiff’s arguments that Defendant did in fact have notice are based on the same arguments previously discussed, i.e., Plaintiff argues that Defendant is lying and in fact had notice because Defendant is/was CEO of First Stop Auto LLC which is located at 314 E Garvey.

Overall

Dill v. Berquist Construction Co. states:

It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper. (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770 [145 Cal.Rptr. 814], quoting from Judicial Council Rep., supra, com. to § 417.10, p. 56; but see Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 255, fn. 7 [211 Cal.Rptr. 517, 695 P.2d 1058], overruling Lowenstein on a related issue.) However, that presumption arises only if the proof of service complies with the statutory requirements regarding such proofs.

(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

Here, Defendant appears to have shown how Plaintiff’s proof of service as to moving Defendant did not comply with the statutory requirements for proof of substituted service. Defendant appears to have shown this by showing that the location served was not his usual place of business. Plaintiff’s argument in Opposition appeared to be unavailing because at best Plaintiff may have shown that the address served was First Stop Auto LLC’s usual place of business; however, First Stop Auto LLC is not seeking to vacate the default/default judgment. Here, moving Defendant is Yinming Liu. Plaintiff did not submit proof or evidence about Yinming Liu, the individual’s, usual place of business. Even setting aside the issue of “usual place of business” and focusing on whether or not a “person apparently in charge of his or her office or place of business” was served, Defendant seems to argue that he had no idea who the person is that Plaintiff served. In Opposition, Plaintiff simply seems to argue that Defendant is lying and Defendant would know who was served because the location served was where Defendant’s business was located.

Dill v. Berquist Construction Co. states, “In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)

Tentatively, the Court plans to GRANT, Defendant Yinming Liu’s motion to vacate the default and default judgment entered against Yinming Liu. The Court notes that this order does not apply to the other Defendants, as no other Defendants moved to vacate default/judgment.

Case Number: 24NNCV02565 Hearing Date: April 24, 2025 Dept: E

Case No. 24NNCV02565
Trial Date: 02/17/2026
Case Name: GAYANE ZETLYAN, an individual; v. ANGEL GOMEZ GARCIA; an individual; BRAND SURGICAL INSTITUTE INC.; BRAND SURGICAL INSTITUTE MEDICAL CENTER, INC.; ANGEL GOMEZ-GARCIA MEDICAL CENTER, INC.; RACHEL PRETENCIO, an individual; KRYSTAL AVILES, an individual; and DOES 1 through 100, inclusive,

2 TENTATIVE RULINGS - MOTION TO COMPEL FURTHER RESPONSES

MOTION 1

RELIEF REQUESTED¿
“Defendants BRAND SURGICAL INSTITUTE INC., RACHEL PRETENCIO and KRYSTAL AVILES (“Defendants”) will, and hereby do, move this Court for an Order compelling Plaintiff GAYANE ZETLYAN (“Plaintiff”) to serve further, verified responses to Special Interrogatories, Set One, Nos. 16, 18, and 24.

This Motion is made pursuant to Code of Civil Procedure section 2030.300 and based on the grounds that Plaintiff failed to provide complete and adequate responses. The information sought is directly relevant to the subject matter of this action. Despite a good faith effort to avoid court intervention, Defendants’ meet and confer efforts were ultimately unsuccessful. Defendants afforded Plaintiff every professional courtesy reasonably available, including multiple extensions of time within which to respond to Defendants’ discovery requests. These requests were served on August 29, 2024. Despite multiple extensions, Plaintiff failed to properly respond to or supplement these interrogatories.

This Motion will be based upon this Notice, the attached Memorandum of Points and Authorities, the attached Declaration of Michael H. Tafarella with exhibits, the concurrently filed Separate Statement, the [Proposed] Order, upon all records on file herein, and upon such oral and/or documentary evidence as may be presented at the hearing of this matter.”

(Def. Mot. p. 2.)

Preliminary Procedural
Moving Party: Defendants, Brand Surgical Institute Inc.; Rachel Pretencio; and Krystal Aviles (Defendants or Movants)

Responding Party: Plaintiff, Gayane Zetlyan

16/21 Day Lapse (CCP § 12c and § 1005(b)): Ok

Proof of Service Timely Filed (CRC, Rule 3.1300(c)): Ok

Correct Address (CCP § 1013, § 1013a, § 1013b): Uncertain – On eCourt, Plaintiff lists two different attorneys as Plaintiff’s counsel. Plaintiff lists Sarkis V. Paronyan and Richard Berberian. Defendants’ proofs of service for the moving papers indicate service via electronic transmission. Defendants’ proofs of service indicate that Plaintiff’s counsel (Richard Berberian) was served at eservice@balawyers.com, and they indicate that Plaintiff’s counsel (Sarkis V. Paronyan) was served at sarkis@paronyanlaw.com. Problematic with service on the two aforementioned email addresses is that eCourt does not list an email address for Sarkis Paronyan. Further, eCourt lists richard@berberianain.com as Richard’s email address, whereas Defendants’ proofs of service indicate service on Richard at eservice@balawyers.com.

That being said, an opposition was submitted by Plaintiff. In the upper left corner of Plaintiff’s Opposition, both Berberian Ain, LLP and Paronyan Law Firm, APC are listed.

Therefore, it appears as if both of Plaintiff’s attorneys are submitting a single, joint opposition.

While it appears that Plaintiff received this motion, based on the fact that an opposition was submitted, the parties are to clear up the issue of why Richard’s eCourt email address is listed differently than the email address listed on Defendants’ proof of service for Richard. Further, the parties are to clear up the issue of why Sarkis does not list an email address on eCourt.

Further, the Court notes that moving Defendants also served the instant moving papers on Defendants, Dr. Angel Gomez-Garcia and Angel Gomez-Garcia Medical Center, Inc.

Moving Defendants’ (Brand Surgical Institute Inc.; Rachel Pretencio; and Krystal Aviles) proofs of service do not indicate service of the moving papers onto Defendant, Brand Surgical Institute Medical Center, Inc. The Court to hear argument as to whether or not Movants were also supposed to serve Defendant, Brand Surgical Institute Medical Center, Inc.

Moving Papers: Notice/Motion; Separate Statement; Proposed Order

Opposition Papers: Opposition; Separate Statement

Reply Papers: Reply

BACKGROUND
Plaintiff, Gayane Zetlyan, filed the instant medical malpractice action on 6/27/2024, naming Defendants as: (1) Angel Gomez Garcia, an individual; (2) Brand Surgical Institute Inc.; (3) Brand Surgical Institute Medical Center, Inc.; (4) Angel Gomez-Garcia Medical Center, Inc.; (5) Rachel Pretencio, an individual; (6) Krystal Aviles, an individual; and (7) DOES 1 through 100, inclusive.

Plaintiff’s Complaint alleges that subsequent to undergoing a surgical procedure with Defendants, a foreign object was negligently left within her abdominal cavity. (Compl. ¶ 18.)

Meet and Confer
“A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2030.300(b)(1).)

Defendants’ counsel indicates that a meet and confer occurred before filing this motion. (Tafarella Decl. ¶ 5.)

45-Day Requirement
“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” (CCP § 2030.300(c).)

The Court to hear argument; neither party addresses this requirement.

LEGAL STANDARD - COMPEL FURTHER RESPONSES TO INTERROGATORIES
Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The Section specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery “may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.” (Ibid.)

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(1) An answer to a particular interrogatory is evasive or incomplete.

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

(3) An objection to an interrogatory is without merit or too general.

(CCP § 2030.300(a).)

If a timely motion to compel has been filed, the¿burden is on the responding party¿to justify any objection or failure fully to answer.¿(Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220–221 [addressing a motion to compel further responses to interrogatories]; see also¿Fairmont Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.)

“While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541 citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

Furthermore, to the extent there is any doubt in whether these records should be discoverable, California’s liberal approach to discovery provides that doubt should be resolved in favor of permitting discovery. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173.)

The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:

(1) An answer containing the information sought to be discovered.

(2) An exercise of the party’s option to produce writings.

(3) An objection to the particular interrogatory.

(CCP § 2030.210(a).)

TENTATIVE RULING MOTION 1

Informal Discovery Conference

Plaintiff argues that had Defendants followed Department E’s Courtroom procedures and requested an informal discovery conference (IDC) prior to filing this motion, it is most likely the case that these motions to compel would not have needed to have been filed.

The Court notes in this regard that IDCs are not required by this Court prior to the filing of a discovery motion, they are merely suggested.

The Court to hear argument.

Substantive

The Court tentatively plans to GRANT Defendants’ motion to compel further, verified, code-compliant responses to SROGs, Set One, Numbers 16, 18, and 24.

As to Plaintiff’s responses that asserted objections regarding attorney-client and/or work-product privileges and improperly seeking premature disclosure of expert witnesses’ identities and opinions, Plaintiff’s objections are overruled. Plaintiff did not meet her burden in justifying her objections. In no clear manner does Plaintiff explain or justify how these objections are applicable.

Further, in SROGs 16 and 18, Plaintiff responded in part with, “Further objection is made on the ground that it would necessitate the preparation of or making a compilation, abstract, audit or summary in violation of CCP§2030.230.” (See SROG responses 16 & 18.)

Further, in SROGs 16, and 18, Plaintiff responded in part with, “Subject to and without waiving said objections, Responding party responds as follows: Responding party exercises their option under Cal CCP§§2030.210(a)(2) and 2030.230 to designate plaintiff’s medical and billing records, operative complaint, and discovery to date, which have been produced to defendant, as the writings from which the answer to this interrogatory may be derived or ascertained.” (See SROG responses 16 & 18.)

Further, in SROG 24, Plaintiff responded in part with, “Subject to and without waiving said objections, Responding party responds as follows: Responding party exercises their option under Cal CCP§§2030.210(a)(2) and 2030.230 to designate plaintiff’s relevant medical and billing records, operative complaint, and discovery to date, which have been produced to defendant, as the writings from which the answer to this interrogatory may be derived or ascertained. Specifically, no foreign body was retained in Responding Party’s body prior to the incident at issue in this action.” (See SROG response 24.)

Under CCP § 2030.230:

If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. The responding party shall then afford to the propounding party a reasonable opportunity to examine, audit, or inspect these documents and to make copies, compilations, abstracts, or summaries of them.

(CCP § 2030.230.)

Here, the Court also overrules Plaintiff’s objections regarding CCP § 2030.230.

Plaintiff’s exercise of the option to produce documents under Section 2030.230 is unwarranted, and the required specification of those documents is inadequate. Plaintiff’s specification is not in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.

For example, in relevant part, Plaintiff’s responses stated, “…[P]laintiff’s medical and billing records, operative complaint, and discovery to date, which have been produced to defendant, as the writings from which the answer to this interrogatory may be derived or ascertained.” (See responses to SROGs 16, 18, & 24.)

Referring to “plaintiff’s medical and billing records,” is not a specification in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained. From what entity are those medical and billing records? Do they have a certain date? What are the “relevant” medical and billing records? Further, what is “discovery to date?”

Further, Plaintiff’s objections regarding overly broad, vague, ambiguous, and relevancy are overruled. Plaintiff did not meet her burden in justifying her objections.

The Court tentatively plans to GRANT Defendants’ motion to compel further, verified, code-compliant responses to SROGs, Set One, Numbers 16, 18, and 24. Plaintiff is ordered to provide further, verified, code-compliant responses to SROGs, Set One, Number 16, 18, and 24 within fifteen (15) days of this hearing date.

Sanctions
“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP § 2030.300(d).)

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, Rule 3.1348(a).)

Neither party requests sanctions.

MOTION 2

RELIEF REQUESTED¿
“Defendants BRAND SURGICAL INSTITUTE INC., RACHEL PRETENCIO and KRYSTAL AVILES’s (“Defendants”) will, and hereby do, move this Court for an Order compelling Plaintiff GAYANE ZETLYAN (“Plaintiff”) to serve further, verified responses to Form Interrogatories, Set One, Nos. 6.4, 6.5, 6.6, 10.1, 10.2, 12.2, 12.3, 12.4, 12.5, and 14.1.

This Motion is made pursuant to Code of Civil Procedure section 2030.300 and based on the grounds that Plaintiff failed to provide complete and adequate responses. The information sought is directly relevant to the subject matter of this action. Despite a good faith effort to avoid court intervention, Defendants’ meet and confer efforts were ultimately unsuccessful. Defendants afforded Plaintiff every professional courtesy reasonably available, including multiple extensions of time within which to respond to Defendants’ very basic discovery requests. These requests were served on August 29, 2024. Despite extensions, Plaintiff failed to provide code compliant responses to these interrogatories.

(Def. Mot. 2.)

Preliminary Procedural
Moving Party: Defendants, Brand Surgical Institute Inc.; Rachel Pretencio; and Krystal Aviles (Defendants or Movants)

Responding Party: Plaintiff, Gayane Zetlyan

16/21 Day Lapse (CCP § 12c and § 1005(b)): Ok

Proof of Service Timely Filed (CRC, Rule 3.1300(c)): Ok

That being said, an opposition was submitted by Plaintiff. In the upper left corner of Plaintiff’s Opposition, both Berberian Ain, LLP and Paronyan Law Firm, APC are listed.

Therefore, it appears as if both of Plaintiff’s attorneys are submitting a single, joint opposition.

Further, the Court notes that moving Defendants also served the instant moving papers on Defendants, Dr. Angel Gomez-Garcia and Angel Gomez-Garcia Medical Center, Inc.

Moving Papers: Notice/Motion; Separate Statement; Proposed Order

Opposition Papers: Opposition; Notice of Errata Re: Electronic Filing of Separate Statement

Reply Papers: Reply

BACKGROUND
See Motion 1.

Meet and Confer
“A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2030.300(b)(1).)

Defendants’ counsel indicates that a meet and confer occurred before filing this motion. (Tafarella Decl. ¶ 5.)

The Court to hear argument; neither party addresses this requirement.

LEGAL STANDARD - COMPEL FURTHER RESPONSES TO INTERROGATORIES
See Motion 1.

TENTATIVE RULING MOTION 2

Informal Discovery Conference

Plaintiff argues that had Defendants followed Department E’s Courtroom procedures and requested an informal discovery conference prior to filing this motion, it is most likely the case that these motions to compel would not have needed to have been filed.

The Court to hear argument.

Substantive

The Court tentatively plans to GRANT Defendants’ motion to compel further, verified, code-compliant responses to FROGs, Set One, Numbers 6.4, 6.5, 6.6, 10.1, 10.2, 12.2, 12.3, 12.4, and 12.5.

Plaintiff’s objections are overruled; Plaintiff did not meet her burden in justifying her objections.

Further, Plaintiff’s responses are evasive.

The Court tentatively plans to GRANT Defendants’ motion to compel further, verified, code-compliant responses to FROGs, Set One, Numbers 6.4, 6.5, 6.6, 10.1, 10.2, 12.2, 12.3, 12.4, and 12.5.

The Court to hear argument with respect to FROG 14.1.

The “Conclusion” section of Defendants’ motion requests the Court to sanction Plaintiff for misuse of the discovery process in failing to provide adequate responses to the written discovery.

However, the amount of the sanction sought is not specified.

Further, both the caption on the notice page, and the notice pages themselves [on pages 1-2 of the motion], do not state that Defendants are seeking sanctions. The sanctions request is only located in the “Conclusion” section in the last paragraph of the motion.

Further, Defendants’ counsel’s declaration does not indicate that Defendants are seeking sanctions.

“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (CRC, Rule 3.1110(a).)

Here, the opening paragraph in the notice of motion does not state that sanctions are being sought.

Therefore, Defendants’ request for sanctions is DENIED.

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