Judge: Curtis A. Kin, Case: 21STCV38316, Date: 2022-12-22 Tentative Ruling
Case Number: 21STCV38316 Hearing Date: December 22, 2022 Dept: 72
MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR
PRODUCTION OF DOCUMENTS
Date: 12/22/22 (8:30 AM)
Case: Song Juan Fu v. Ashley Liu
(21STCV38316)
TENTATIVE RULING:
Plaintiff Song Juan Fu’s Motion to
Compel Further Responses to Request for Production of Documents, Set One is GRANTED
IN PART.
Plaintiff Song Juan Fu moves to compel further responses
from defendant Ashley Liu to Request for Production, Set One, Nos. 1-9. The requests at issue are as follows:
REQUEST NO. 1
Any and all DOCUMENT(S) that contain
the telephone number of YOUR friend Tian Zhang as indicated in YOUR deposition
transcript, Volume 1, page 23, line 12-21.
REQUEST NO. 2
A copy of YOUR passport that has YOUR
travel records for the year of 2019 through 2021.
REQUEST NO. 3
Any and all DOCUMENT(S) that contain
YOUR communications with PLAINTIFF, including, but not limited to, wechat
messages, texts, emails, letters, notes.
REQUEST NO. 4
Any and all DOCUMENT(S) that contain
YOUR communications with Jinhui Guo about the company Xuanwu, including, but
not limited to, wechat messages, texts, emails, letters, notes.
REQUEST NO. 5
Any and all DOCUMENT(S) that contain
YOUR communications with Jinhui Guo about PLAINTIFF, including, but not limited
to, wechat messages, texts, emails, letters, notes.
REQUEST NO. 6
A copy of YOUR stock certificate issued
by the company Xuanwu.
REQUEST NO. 7
Any and all DOCUMENTS that contain YOUR
communications with Mr. Zheng as YOU testified in YOUR deposition Volume 1,
page 23, line 5-6, including, but not limited to, wechat messages, texts,
emails, letters, notes.
REQUEST NO. 8
Any and all DOCUMENT(S) that contain
YOUR communications with BinBin Mi as YOU testified in YOUR deposition Volume
1, page 36, line 23, including, but not limited to, wechat messages, texts,
emails, letters, notes.
REQUEST NO. 9
Any and all DOCUMENT(S) that contain
YOUR communications with Tian Zhang, including, but not limited to, wechat
messages, texts, emails, letters, notes.
(Wong Decl. ¶ 1 & Ex. A.)
With respect to Request Nos. 1, 8, and 9, defendant
responded: “After diligent search and reasonable inquiry, responding party is
unable to comply since no responsive documents exist anymore.” With respect to
Request Nos. 4, 5, and 7, defendant responded: “After diligent search and
reasonable inquiry, responding party is unable to comply since no responsive
documents exist.”
Defendant’s responses to Request Nos. 1, 4, 5, and 7-9 do
not fully comply with CCP § 2031.230. Although defendant responded that a
diligent search and reasonable injury was made, defendant did not state why she
is not able to produce the requested documents, as is required. (See CCP
§ 2031.230 [“This statement shall also specify whether the inability to comply
is because the particular item or category has never existed, has been
destroyed, has been lost, misplaced, or stolen, or has never been, or is no
longer, in the possession, custody, or control of the responding party”].)
The Court also notes that, if defendant knows or believes
any natural person or organization to have possession, custody, or control of
any responsive documents, defendant is required to set forth the name and
address of such natural person or organization in the respective further response.
(See CCP § 2031.230 [“The statement shall set forth the name and address
of any natural person or organization known or believed by that party to have
possession, custody, or control of that item or category of item”].) Otherwise,
no such name or address are required in the further response.
Insofar as plaintiff suggests that defendant’s
representation of inability to comply is false, defendant is entitled to
respond pursuant to CCP § 2031.230. If plaintiff, nonetheless, contends that
defendant intentionally withheld responsive documents, plaintiff may seek any
relief to which she believes she is entitled upon making the requisite showing.
For the foregoing reasons, further responses are required
for Request Nos. 1, 4, 5, and 7-9.
With respect to Request No. 2, which asks for a copy of
defendant’s passport containing defendant’s travel records from 2019 to 2021,
defendant objected based on relevance, overbreadth, and right of privacy. Even
under a broad standard of discovery, as set forth in CCP § 2017.010, plaintiff
fails to show that the requested records are reasonably calculated to lead to
admissible evidence. Defendant’s
whereabouts while communicating with plaintiff are not probative of defendant’s
intent while representing that she would make certain payments to plaintiff. No
further response to Request No. 2 is required.
With respect to Request No. 3, defendant responded that she
“will produce all documents in her possession, custody, or control.” This
response complies with CCP § 2031.220. Plaintiff asserts that defendant has not
produced documents that are responsive to Request No. 3. However, plaintiff
only moves to compel further responses. (See Notice of Mtn. at 1:24-2:1,
Mtn. at 11:10-11.) Plaintiff does not cite any authority allowing the Court to
compel production when the party responding to discovery agrees to comply with
a document request. Arguments without any legal authority are without merit. (Kensington
University v. Council for Private Postsecondary etc. Education (1997) 54 Cal.App.4th
27, 42-43.) CCP § 2031.280(b), cited by plaintiff, only states when the
responding party must produce documents. The statute does not allow the
propounding party to file a motion. (Cf.
CCP § 2031.320 [allowing for motion to compel compliance].) No further response
to Request No. 3 is required.
With respect to Request No. 6, which asks defendant to
produce a copy of her stock certificate issued by the company Xuanwu, defendant
objected to the request as seeking protected financial information pursuant to
Civil Code § 3295. Defendant’s objection is justified. Plaintiff contends that
defendant’s claim of financial privacy is outweighed by her need for the
discovery. Plaintiff fails to directly address the fact that she still does not
have leave to conduct pretrial discovery into defendant’s financial condition,
as required by Civil Code § 3295(c). On November 15, 2022, the Court denied
plaintiff’s motion for an order permitting financial condition discovery.
(11/15/22 Minute Order.) No further response to Request No. 6 is required.
The motion is GRANTED IN PART. The motion is DENIED as to
Request for Production, Set One, Nos. 2, 3 and 6. With respect to
Request for Production, Set One, Nos. 1, 4, 5, and 7-9,
no later than ten (10) days hereof, defendant Ashley Liu is ordered to
provide Code-compliant, verified further responses without objection in
compliance with the ruling above.
Given the mixed result, plaintiff’s request for monetary
sanctions is DENIED.