Judge Gregory Keosian, Case 19STCV30516 2023-01-11 Tentative Ruling

Plaintiff Miaoxin Yu’s Motions to Compel Responses to Requests for Production and Form and Special Interrogatories and to Deem Matters Admitted against Defendant Jianxiang Shi are GRANTED. No sanctions are awarded.

Michael Chen’s Motion to Be Relieved as Counsel for Defendant Moregain Capital Group is GRANTED.

A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

A party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Likewise, “[a]ny party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” (Code Civ. Proc., § 2033.010.) If a party fails to serve a timely response to requests for admissions, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction” (Code Civ. Proc., § 2033.280 subd. (b).)

Plaintiff Miaoxin Yu (Plaintiff) contends that interrogatories, requests for production, and requests for admission were served upon Defendant Jianxiang Shi (Defendant) on September 26, 2022, with responses due by October 25, 2022. (Weiner Decl. ¶¶ 2–3.)[1] No responses, however, have been served. (Weiner Decl. ¶ 6.)

Defendant’s counsel in opposition contends that he received no actual notice of the discovery at issue because the subject line of the email in which the discovery was served — “RE: Notice of Dismissal_ZHAO_30516” — did not relate to discovery, but the dismissal of a party he did not represent, and thus remained unopened until November 2022. (Opposition at p. 2.) Defendant also contends that the service of the email was improper, as Plaintiff made no attempt to confirm whether the address of service was appropriate as required under Code of Civil Procedure § 1010.6, subd. (e)(1). (Opposition at p. 3.) Defendant contends that this motion itself was ill-served under the same statute. (Opposition at p. 5.)

Defendant’s arguments with respect to service under Code of Civil Procedure § 1010.6 are unpersuasive. Although a party serving counsel “shall confirm the appropriate electronic service address for the counsel being served,” Plaintiff in reply shows that the proper service address for Defendant’s counsel was confirmed by email on July 26, 2022. (Reply Exh. A.) Thus Code of Civil Procedure § 1010.6 poses no obstacle to the present motion.

The issue of the cryptic subject line is more difficult, but it too does not provide a basis to deny the motion. Neither Code of Civil Procedure § 1010.6 nor CRC Rule 2.251 contain provision for the subject lines of emails that form the basis for electronic service, and Defendant cites no provision of law that Plaintiff’s service of the email under the cryptic subject-line has violated.

Defendant’s lack of actual notice of the discovery at issue is properly considered in two places: first, whether to award monetary sanctions on the motions, and second — not at issue here — whether “excusable neglect” exists such as might support a motion for relief from waiver or admission under Code of Civil Procedure §§ 2030.290, 2031.300, 2033.290, and 2033.300.[2] Defendant’s argument does not, however, prevent Plaintiff from seeking an order compelling responses and deeming matters admitted.

Accordingly, if responses are not provided by the date of hearing on the motions, the motions to compel and deem admitted shall be GRANTED.[3]

The prevailing party on a motion to compel is generally entitled to monetary sanctions, unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290, 2031.300.) Sanctions are also mandatory against a party whose failure to serve responses to requests for admission makes the motion necessary. (Code Civ. Proc. § 2033.280, subd. (c).)

Plaintiff here seeks a total of $6,615.00 in sanctions in connection with the four motions, representing 12.75 hours of attorney work and four $60 filing fees. (Weiner Decl. ¶ 7.) No sanctions are appropriate, as Defendant opposed the motion with substantial justification based on lack of notice.

Cal. Code of Civ. Proc. (“CCP”) section 284 states that “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment or final determination” upon either consent of both client and attorney, or upon the order of the court under application of either the client of the attorney, after notice from one to the other. Cal. Rule of Court 3.1362 states the requirements for a motion to be relieved as counsel under CCP section 284. No memorandum is required, but the motion must be accompanied by (1) a declaration stating why a motion has been brought instead of filing a consent (without compromising attorney-client confidentiality), (2) proof of service of the motion, and (3) all hearing dates scheduled in the action or proceeding, including the date of trial, if know. Additionally, “[t]he proposed order relieving counsel must be prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel--Civil (form MC-053) and must be lodged with the court with the moving papers.”

Michael Chen, counsel for Defendant Moregain Capital Group, moves to be relieved as counsel for that party based on his recent discovery that Moregain’s privileges as an out-of-state corporation have been forfeited by the Franchise Tax Board. A forfeited corporation, like a suspended corporation, “may not sue or defend an action. (Schwartz v. Magyar House, Inc. (1959) 168 Cal.App.2d 182, 188.) And under Revenue & Tax Code § 19719, no person may “transact intrastate business in this state on behalf of a foreign corporation, the rights and privileges of which have been forfeited” under Revenue & Tax Code § 23301. (Rev. & Tax Code § 19719, subd. (a).) Moregain’s counsel has served it with this motion, and the motion complies with the above procedural requirements.

[1] Prior discovery was served upon Defendant through counsel on July 29, 2022, but due to objections by Defendant as to this prior service, Plaintiff agreed to re-serve the discovery on the dates stated above. (Weiner Decl. ¶¶ 4, 6, Exh. D.) This prior discovery is not at issue in the present motion.

[2] Such relief is unavailable here because Defendant neither seeks it nor claims to have served any responses as the above statutes would require. (See Code of Civil Procedure §§ 2030.290, subd. (a)(1);, 2031.300, subd. (a)(1), and 2033.290, subd. (a)(1).

[3] Plaintiff argues that Defendant’s opposition is untimely, but erroneously relies on the timing rule applicable to oppositions to motions made before appellate courts. (Reply at p. 3, citing CRC Rule 8.54, subd. (a)(3).)