Judge: Cynthia A Freeland, Case: 37-2023-00044928-CU-BC-NC, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 23, 2024

05/24/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Breach of Contract/Warranty Discovery Hearing 37-2023-00044928-CU-BC-NC GUANGZHOU FCM BIOTECH CO. V. GOLDENSHELL CORP.

CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 03/12/2024

Plaintiff Guangzhou FCM Biotech Co., Ltd. ('Plaintiff')'s motion to compel Defendant Mohan Warren ('Defendant') to provide responses to Form Interrogatories – General (Set One) and Request for Production of Documents (Set One), to deem admitted Request for Admission (Set One) (collectively, the 'Discovery Requests'), and for sanctions, is granted.

On February 2, 2024, Plaintiff electronically served Defendant's counsel with the Discovery Requests via One Legal. See Liu Decl., Ex. 3. Defendant's responses were initially due by March 5, 2024. See Cal. Code Civ. P. §§ 1010.6(a)(3)(B), 2030.260(a), 2031.260(a), 2033.250(a). Defendant did not serve responses or responsive documents by the deadline to do so. Nor did Defendant seek an extension of time to respond to the Discovery Requests. The foregoing constitutes grounds to grant the motion. See Cal. Code Civ. P. § 2030.290(b), 2031.300(b), 2033.280(b). In addition, Defendant has not provided evidence that she has served, before this hearing, proposed responses that substantially comply with California Code of Civil Procedure ('CCP') § 2033.280(c). See Cal. Code Civ. P. § 2033.280(c); St. Mary v. Sup. Ct. (2014) 223 Cal. App. 4th 762, 776.

Defendant's argument that Plaintiff failed to meet and confer in good faith before filing the pending motion is not well taken. The court always encourages the parties to meet and confer to resolve their discovery disputes informally before resorting to motion practice. However, Plaintiff is correct that a motion to compel initial discovery responses, unlike a motion to compel further responses, does not require that the parties meet and confer beforehand. See, e.g., Sanaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 403-404. Consequently, the court will not deny the motion for Plaintiff's alleged failure to meet and confer before bringing the motion.

Defendant's contention that Plaintiff did not properly serve Defendant's counsel with the Discovery Requests likewise is unavailing. CCP § 1010.6(b)(2) makes clear that '[a] person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or documents that may be served by mail, express mail, overnight delivery, or facsimile transmission.' See Cal. Code Civ. P. § 1010.6(b)(2) (emphasis added). CCP § 1010.6(b)(2) is consistent with San Diego Rules of Court, Rule 2.1.4, which provides that '[a] party or other person that is required to file documents electronically in an action must also serve documents and accept service of documents electronically, except when personal service is otherwise required by statute or rule, the court orders otherwise, or the action includes a party or person that is not subject to mandatory e-filing in which case that party or person must be served by non-electronic methods unless they affirmatively consent to electronic service.' See San Diego Rules of Court, Rule 2.1.4 (emphasis added).

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3102749 CASE NUMBER: CASE TITLE:  GUANGZHOU FCM BIOTECH CO. V. GOLDENSHELL CORP.  37-2023-00044928-CU-BC-NC In this case, Mr. Cai of Sac Attorneys LLP has represented Defendant at all times and thus has been under an obligation to accept electronic service of documents, including electronic service of the Discovery Requests, regardless of whether Mr. Cai first manifested an affirmative consent to be served by electronic means. That being said, the evidence shows that Plaintiff served Defendant's counsel with the Discovery Requests via One Legal to Defendant's counsel's email address (jcai@sacattorneys.com).

This is the same email address Mr. Cai has used to serve Plaintiff with Defendant's Answer, Cross-Complaint, and Amended Cross-Complaint in this action. Both parties have used One Legal to effectuate electronic service. Consequently, Defendant cannot allege defective electronic service as a means to avoid her discovery obligations. Defendant cites California Rules of Court, Rule 2.251(a) for the proposition that Mr. Cai needed to provide express consent to electronic service; however, such express consent applies only to electronic service made pursuant to California Penal Code § 690.5. See Cal. R. Ct. 2.251(a). Furthermore, Defendant's reliance upon Insyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal. App. 4th 1129 is not well taken as the Sixth District Court of Appeal was applying an earlier iteration of CCP § 1010.6 that is not applicable to the present dispute.

The parties do not dispute that Defendant served proposed responses to the Discovery Requests on May 9, 2024. See Liu Decl., ¶ 5. However, neither side has provided a copy of those responses to the court so that the court can analyze the responses' propriety independently. Additionally, Plaintiff contends in its reply brief that the Defendant's responses are not Code-compliant. Consequently, the court grants the motion to compel as to Plaintiff's Form Interrogatories and Request for Production of Documents. Moreover, given that Defendant's responses to Plaintiff's Request for Admission were not provided to the court, the court has no evidence that such responses substantially comply with CCP § 2033.280(c). Consequently, the court must grant the motion as to Plaintiff's Request for Admission.

The court must impose sanctions against any party who unsuccessfully makes or opposes a motion to compel a response to written interrogatories or a request for production of documents '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.' Cal. Code Civ. P. §§ 2030.290(c), 2031.300(c). The party subject to sanctions bears the burden of proving that he or she acted with substantial justification. See Doe v. U.S. Swimming, Inc. (2011) 200 Cal. App. 4th 1424, 1435 (citing Cal. Evid. Code §§ 500 and 550; Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 971). Substantial justification means justification that is clearly reasonable because it is well grounded in both law and fact. See Doe, 200 Cal. App. 4th at 1434 (citing Nader Automotive Group, LLC v. New Motor Vehicle Bd. (2009) 178 Cal. App. 4th 1478, 1480).

Additionally, the court must 'impose a monetary sanction . . . on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.' Cal. Code Civ. P. § 2033.280(c). In this case, the court finds that Defendant has not met her burden of demonstrating that she was substantially justified in failing to serve timely responses to the Discovery Requests. Moreover, the court lacks discretion to deny Plaintiff's sanctions request as to the Request for Admission. As a result, the court concludes that Defendant's conduct warrants the imposition of sanctions, and Plaintiff's request for sanctions in the total amount of $2,510.00 is granted.

In light of the foregoing, the court grants the motion and: (1) directs Defendant to serve verified Code-compliant responses, without objections, and documents responsive to Plaintiff's Form Interrogatories and Request for Production of Documents within twenty-one (21) days of this hearing; (2) deems admitted the genuineness of any documents and the truth of any matters specified in Plaintiff's Request for Admission; and (3) awards Plaintiff $2,510.00 in sanctions against Defendant and her attorney, James Cai, jointly and severally, due and payable to Plaintiff within twenty-one (21) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, May 24, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of May 24, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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