Judge Kevin C. Brazile, Case Number: 18STCV07962, Date: 2023-11-16 Tentative Ruling

TENTATIVE RULINGS

SUBMISSION INSTRUCTIONS

STANLEY MOSK COURTHOUSE, DEPARTMENT 20 - JUDGE KEVIN C. BRAZILE

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Motion: (1) Motion to Compel Further Responses to Form Interrogatories (Set One); Request for Sanctions in the Amount of $2,459

(2) Motion to Compel Further Responses to Request for Production of Documents (Set One); Request for Sanctions in the Amount of $2,632

Moving Party: (1) Defendant Vista Del Mar Child and Family Services (“Defendant”)

Ruling: The Motion to Compel Further Responses to Form Interrogatories (Set One) is GRANTED. Sanctions are GRANTED in the reduced amount of $1,500.

The Motion to Compel Further Responses to Request for Production of Documents (Set One) is GRANTED in part, DENIED in part. Sanctions are DENIED.

Plaintiff shall provide verified responses without objection to the above discovery within 20 days.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

On September 14, 2021, Plaintiff Dan Ma filed the operative Fourth Amended Complaint against Defendant Vista Del Mar Child and Family Services for (1) fraudulent inducement, (2) intentional misrepresentation, (3) negligent misrepresentation, (4) breach of written contract, and (5) breach of oral contract. Plaintiff gave up her child for adoption through Defendant, an adoption agency. Plaintiff signed a relinquishment agreement as to her child. Plaintiff could not speak English and was not shown an English translation of the agreement. She also had a difficult time understanding the formal Mandarin agreement provided to her. Plaintiff was told by Defendant’s interpreter that Plaintiff had a 30-day period to cancel the agreement, which Plaintiff claims was a fraudulent representation. Within 30 days of signing the relinquishment agreement, Plaintiff sought to rescind the agreement and obtain her child. Defendant refused to return Plaintiff’s child allegedly because Defendant was motivated by a substantial payment from the adoptive parents.

On November 16, 2023, the Court granted Defendant leave to file a cross-complaint against the interpreter who allegedly told Plaintiff she had a 30-day period to cancel the agreement.

On October 24, 2022, Defendant served Form Interrogatories (Set One) and Request for Production of Documents (Set One) on Defendant. (Matta Declaration Re: Form Rogs and Matta Declaration Re: RPDs, ¶ 2.)

CCP §2030.300(a) authorizes a party propounding interrogatories to move for an order compelling a further response if that party deems that “[a]n answer to a particular interrogatory is evasive or incomplete,” “[a]n exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate,” or “[a]n objection to an interrogatory is without merit or too general.”

CCP §2031.310(a) authorizes the demanding party to move for an order compelling a further response to the demand if the demanding party deems that: “[a] statement of compliance with the demand is incomplete;” “[a] representation of inability to comply is inadequate, incomplete, or evasive;” or “[a]n objection in the response is without merit or too general.”

Plaintiff contends these motions should be denied on the basis that Defendant did not engage in proper meet and confer efforts before the motions were filed.

Cal Code Civ Proc §§ 2030.300 (b) (1) and 2031.310 (b) (2) require that the parties engage in meet and confer efforts prior to bringing motions to compel further responses to interrogatories and requests for production, respectively.

Here, the discovery requests were served on October 24, 2022. (Matta Decl. ¶ 2.) On January 19, 2023, Plaintiff provided responses with objections. (Id.) On January 27, 2023, Defendant’s counsel, Sherri Matta, emailed Plaintiff seeking supplemental responses by February 10, 2023. (Id.) On March 1, 2023, Plaintiff served unverified supplemental responses. (Id.) On March 10, 2023, Plaintiff served verifications for those responses. (Id.) On March 27, 2023, Matta emailed Plaintiff seeking further supplemental responses by April 10, 2023. (Id.) On April 14, 2023, after Plaintiff did not respond to the request, Matta requested an IDC, to which Plaintiff agreed. (Id.) On June 7, 2023, the parties attended an IDC where Plaintiff agreed to provide supplemental responses by August 7, 2023. (Id.) On July 26, 2023, Defendant agreed to extend the deadline to September 6, 2023. (Id.) The deadline was subsequently extended again to September 13, 2023. (Id.) Then, on August 29, 2023, Plaintiff requested another extension, to October 3, 2023. (Id.) On August 30, 2023, Defendant refused. (Id.) On September 1, 2023, Plaintiff again requested an extension to provide the supplemental responses to September 21, 2023, but Defendant refused again. (Id.) On September 15, 2023, two days after the deadline, Plaintiff provided unverified supplemental responses. (Id.) On September 19, 2023, Plaintiff provided verifications. (Id.) On November 2, 2023, Plaintiff extended Defendant’s deadline to file a motion to compel to November 20, 2023. (Id.)

Plaintiff contends that the meet and confer efforts were insufficient because between Plaintiff filing the most recent supplemental responses on September 15, 2023 and Defendant filing the instant motions, Defendant or her counsel did not reach out to Plaintiff to inform Plaintiff of any perceived deficiencies within the responses.

In reply, Defendant contends that the multiple meet and confer efforts made since propounding the initial discovery requests, as well as attending the IDC and granting multiple extensions to provide adequate supplemental responses were sufficient to satisfy the meet and confer requirement. The Court agrees with Defendant. The meet and confer requirement is satisfied as to both motions to compel further.

At issue here are Nos. 2.5, 2.6, 8.2, 8.4, 8.6, 8.7, 8.8, 9.1, and 9.2 propounded by Defendant.

No. 2.5 asks Plaintiff to state “(a) your present residence ADDRESS; (b) your residence ADDRESSES for the past five years: and (c) the dates you lived at each ADDRESS.”

Plaintiff’s initial response: objected on the grounds of privilege and privacy, and further stated that she “can be reached at the address and telephone number of their legal counsel, Mr. Lin as set forth in the above-stated caption to this Discovery response provided.”

Plaintiff’s supplemental response: “China, Dalian, Zhongnan Road, Yuetedideli Residential Quarter, Building 13.”

Defendant contends the supplemental responses are incomplete because subpart (c) requests the dates Plaintiff lived at the address provided.

The motion is GRANTED as to No. 2.5 as no addresses were provided in response to subpart (c).

No. 2.6 asks Plaintiff to state “ (a) the name, ADDRESS, and telephone number of your present employer or place of self- employment: and (b) the name, ADDRESS, dates of employment, job title, and nature of work for each employer or self-employment you have had from five years before the INCIDENT until today.”

Plaintiff’s initial response: objects on the grounds that it is vague, ambiguous, and unintelligible, particularly with respect to the term “incident,” which is not tailored or applicable to the allegations of the complaint or properly defined. Subject to and without waiving these objections, Plaintiff states she was self-employed.

Plaintiff’s supplemental response: “At the time of adoption, Responding Party has been self-employed as a legal representative and owner of China Dalian Sophia Advertising Media Co., Ltd. at China, Liao Ning Sheng, Dalian, Sha He Kou Qu, Gonghua Street, No. 17, 101.”

Further supplemental response: “Responding Party was self-employed as owner/CEO of China Dalian Sophia Advertising Media Co., Ltd. at China, Liao Ning Sheng, Dalian, Sha He Kou Qu, Gonghua Street, No. 17, 101.”

Defendant contends the responses are incomplete because subpart (b) asks for the dates of employment and nature of work for each employer or self-employer. Her refusal to state the date when her employment ended, and her failure to provide any responsive information concerning her current employer, if any, is evasive.

The motion is GRANTED as to No. 2.6 because Plaintiff has not responded to subpart (b).

No. 8.2 asks Plaintiff to state “(a) the nature of your work; (b) your job title at the time of the INCIDENT; and (c) the date your employment began.”

Plaintiff’s response: objects on the grounds it is vague, ambiguous, and unintelligible, particularly with respect to the term “incident,” which is not tailored or applicable to the allegations of the complaint or properly defined.

Plaintiff’s supplemental response: maintains objections but states “at the time of the adoption, Plaintiff was the owner of China Dalian Sophia Advertising Media Co., Ltd. The company provided advertising services for various real estate and automobile companies. The market of this industry is very good, but it also requires the owner to manage and operate the company carefully. Plaintiff started to operate the company in 2012. The business was getting worse in 2018 and 2019 since Plaintiff, as the owner, could not concentrate on her work with the loss of her baby boy Marwell. After the second half of 2019, the company basically had zero income. Now the company has closed.”

Defendant contends this response is incomplete because Plaintiff has not described the nature of her work as requested by subpart (a), thus her response is evasive.

Plaintiff’s objections on the grounds of privacy are overruled as Plaintiff’s job, job title, and date of employment are not private information.

As to the term “incident,” the Court finds that it is clearly defined as Defendant misleading Plaintiff into relinquishing her child for adoption. There is no ambiguity as to that meaning.

Accordingly, the motion is GRANTED as to No. 8.2 because Plaintiff failed to respond to subpart (a).

No. 8.4 asks Plaintiff: “State your monthly income at the time of the INCIDENT and how the amount was calculated.”

Plaintiff’s response: Plaintiff asserts the same response as she did in response to No. 8.2, regarding the term “incident.”

Plaintiff’s supplemental response: “Plaintiff's business work performance in the past three years has been particularly poor and the company in which she is self-employed has suffered significant monetary losses. From January to August 2017, Plaintiff MA's company's total profit before tax was 4,007,642.51 RMB. From November to December 2017, my company's total profit before tax became negative revenues of loss of $4,497,198.89 RMB. Please find the financial documents produced to you as the responsive documents of RFP No. 23, 24, and 31, including China Dalian Sophia Advertising Media Co., Ltd.'s revenue and profit document and income statements, which sets forth how the amount is and was calculated.”

Plaintiff’s further supplemental response: “Responding Party states that her monthly profit at time of the Incident, which is assumed to refer to the Adoption proceedings was approx. $50K RMB/month. Such financial numbers are extrapolated based upon the monthly average revenues as derived from the company sales generated in 2017.”

Defendant contends that Plaintiff’s response is evasive and non-responsive because 1) Plaintiff failed to attach an English translation of the financial documents at issue in this interrogatory and thus Defendant cannot evaluate Plaintiff’s contentions and 2) Plaintiff continues to reference her company’s profit as opposed to her personal income, as requested by the interrogatory.

The motion is GRANTED as to No. 8.4 as Plaintiff has failed to attach English translations of the financial documents at issue or provide information concerning her personal income.

No. 8.6 asks Plaintiff: “State the dates you did not work and for which you lost income as a result of the INCIDENT.”

Plaintiff’s response: Plaintiff asserts the same response as she did in response to No. 8.2 and No. 8.4, regarding the term “incident.”

Plaintiff’s supplemental response: maintains objections but adds that “The losses of Plaintiff MA's financial income started in or after November 2017.”

Plaintiff’s further supplemental response: “Plaintiff did not stop working. The losses of Plaintiff MA's financial income started in the second half of 2017 after refusal of Vista Del Mar to stop or cancel or retract the Adoption Proceedings.”

Defendant contends that Plaintiff’s response is evasive and non-responsive because in response to No. 2.6, Plaintiff claimed the only company she worked for in the past five years was her own business, in response to No. 8.2, Plaintiff contended she had to close her company as a result of the incident, and yet her, she claims she never stopped working, and these three statements cannot all be true.

The motion is GRANTED as to No. 8.6 on the grounds that Plaintiff’s responses are incongruous. Plaintiff must clarify what work she missed as a result of the incident.

No. 8.7 asks Plaintiff: “State the total income you have lost to date as a result of the INCIDENT and how the amount was calculated.”

Plaintiff’s response: Plaintiff asserts the same response as she did in response to No. 8.2, 8.4, and 8.6 regarding the term “incident.”

Plaintiff’s supplemental response: maintains objections but adds: “Plaintiff's business work performance in the past three years has been particularly poor and the company in which she is self-employed has suffered significant monetary losses. From January to August 2017, Plaintiff MA's company's total profit before tax was 4,007,642.51 RMB. From November to December 2017, my company's total profit before tax became negative revenues of loss of $4,497,198.89 RMB. Please find the financial documents produced to you as the responsive documents of RFP No. 23, 24, and 31, including China Dalian Sophia Advertising Media Co., Ltd.'s revenue and profit document and income statements, which sets forth how the amount is and was calculated.” (This is the same supplemental response as No. 8.2)

Plaintiff’s further supplemental response: “from November to December 2017, Plaintiff MA's company's total profit before tax became negative revenues of loss of$4,497,198.89 RMB. Said losses are and were calculated based on the financial documents, including those produced responsive to RFP Nos. 23, 24, and 31.”

Defendant contends that Plaintiff’s response is evasive and non-responsive because Plaintiff’s answer refers to Chinese language financial statements, which cannot be understood by Defendant, for which Plaintiff has provided no backup records. Defendant asserts that the Court previously explained to Plaintiff’s counsel that this is not acceptable. Thus, Defendant cannot determine how the monetary values were calculated. Moreover, Plaintiff’s reference to her company’s profit, rather than her personal income, makes the answer nonresponsive.

The motion is GRANTED as to No. 8.7 as Plaintiff has failed to provide English language documents or information concerning her personal income.

No. 8.8 asks Plaintiff: “Will you lose income in the future as a result of the INCIDENT? If so, state: (a) the facts upon which you base this contention; (b) an estimate of the amount; (c) an estimate of how long you will be unable to work; and (d) how the claim for future income is calculated.”

Plaintiff’s response: Plaintiff asserts the same response as she did in response to No. 8.2, 8.4, 8.6, and 8.7 regarding the term “incident.”

Plaintiff’s supplemental response: “From 2017 to 2019, Plaintiff MA has lost 18 million RMB, having lost many projects caused by her inability to focus on her work due to the loss of baby Boy Marwell Ma. Due to all her thoughts and focus being on how to get her baby boy Marwell back, Plaintiff MA is unable to undertake her relevant work related to the business operations. Plaintiff MA's loss claims are calculated as an average of her company's annual income, which ranges from $5 million to 15 million RMB per year.”

Defendant contends that Plaintiff’s response is non-responsive because the interrogatory asks about the loss of future income but Plaintiff’s response refers to past income loses.

The motion is GRANTED as to No. 8.8 as Plaintiff fails to respond to the interrogatory by failing to provide information about future income.

No. 9.1 asks Plaintiff: “Are there any other damages that you attribute to the INCIDENT? If so, for each item of damage state: (a) the nature; (b) the date it occurred;(c) the amount; and (d) the name, ADDRESS, and telephone number of each PERSON to whom an obligation was incurred.”

Plaintiff’s response: Plaintiff asserts the same objection as she did in response to No. 8.2, 8.4, 8.7, and 8.8 regarding the term “incident.” Maintaining the objection, she also responds that discovery is ongoing and continuing and in its initial stages as this case is not even at issue as of yet, such that Plaintiff reserves the right to modify, amend, supplement or correct this response at any time during the course of this litigation as discovery further proceeds forward in this Action filed.

Plaintiff’s supplemental response: “As a direct and legal cause of the intentional misrepresentations and knowingly false statements made, entered into and carried out by Defendant through their agents Chantilly Wijayasinha, Joey Goldman as well as the Mandarin Interpreter Ann Wang hired, Responding Party has suffered significant damages, both monetary and non-monetary, including most importantly and most devastatingly, the loss of her baby boy MARWELL and the severe emotional harm and injury that this loss has caused to her, in terms of a void or emptiness in her heart and in her entire life or world. Responding Party thinks about her son Marwell Ma every· single day and night since the date that she made the fateful decision to initially give up possession of him on May 17, 201 7, pursuant to which she later made the timely decision to change her mind to cancel the Adoption proceedings within the 30 days' time period that she was expressly advised and told that she had in terms of the time to change her mind and her final decision made on continuing to go forward with these Adoption proceedings. Over the past 5-6 years since that day, she has not been able to concentrate on her work and has incurred significant and severe emotional and mental distress, including physical symptoms, not being able to sleep well, concentrate on either her work and/or personal matters, in constantly obsessing about her baby boy Marwell and her devastating loss of her son given Defendant Vista Del Mar's refusal to properly and timely acknowledge her subsequent and timely decision to change her mind and cancel the ongoing Adoption proceedings. Regarding the total amount of damages of Responding Party, since Discovery is ongoing and continuing and in its initial stages as this case and the fact that such monetary claims will likely require or may constitute expert witness testimony and is a matter in terms of damages alleged to have been sustained which must be proven and established at time of Trial, Responding Party reserves the right to modify, amend, supplement or correct this response at any time during the course of this litigation as discovery further proceeds forward in this Action filed.”

Defendant contends that Plaintiff’s response is evasive and non-responsive because instead of provided the details concerning Plaintiff’s claimed damages, Plaintiff merely summarizes her liability allegations.

Plaintiff’s objections are overruled for the same reasons as 8.2. Moreover, Plaintiff’s summary of her allegations in the complaint are non-responsive to the interrogatory pointed at the details of damages Plaintiff is claiming as a result of the incident.

No. 9.2 asks Plaintiff: “Do any DOCUMENTS support the existence or amount of any item of damages claimed in interrogatory 9.1? If so, describe each document and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.”

Plaintiff’s supplemental response: maintains objections but adds: “In 2019, I contacted the cooperative company, Vista Del Mar, to terminate the contract because I was unable to run the company due to the loss of my baby boy Marwell. There is a written notice of my request to cancel the contract termination in support of herein. In 2019, when all businesses in China were relatively good, I gave up on many work projects since I was suffering from severe emotional and mental distress, including physical symptoms, not being able to sleep well, concentrate on either my work and/or personal matters, in constantly obsessing about my baby boy Marwell and his return back to me upon my prior timely cancellation of the adoption proceedings [for which I was expressly told and informed in Chinese by both Vista Del Mar representatives, including the Chinese Mandarin interpreter retained by Vista Del Mar that I had 30 days in which to change my mind and cancel the Adoption proceedings after my initial decision made to give up my baby Boy Marwell Ma for initial Adoption]. The contract amount for this project was more than 10 million RMB.”

Defendant contends that Plaintiff’s response is evasive and non-responsive because 1) Plaintiff did not properly respond to No. 9.1 and thus has no damages to show documentary support for and 2) Plaintiff’s response refers to the cancellation of an unidentified contract, entered on an unidentified dated, with an unidentified person, cancelled in unspecified manner.

The motion is GRANTED as to No. 9.2. Plaintiff must provide a complete response to No. 9.1 and for any damages listed must provide any supporting documents under No. 9.2.

Defendant requests $2,459 in sanctions against Plaintiff or Plaintiff’s counsel for unsuccessfully opposing the instant motion without substantial justification.

“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.” (C.C.P. § 2030.300(d) (emphasis added).)

Here, Plaintiff’s responses are clearly evasive and non-responsive, despite multiple opportunities to provide complete responses through supplemental responses. Defendant’s counsel spent 10.9 hours on this motion at a rate of $210/hour and her legal assistant spent one hour on this motion at a rate of $110, plus a $60 filing fee. These fees are excessive. Accordingly, Defendant’s request for sanctions is GRANTED in the reduced amount of $1,500.

As an initial matter, Defendant withdrew RFP Nos. 27 and 28, as these were made in error.

Plaintiff issues the following objections: vague, uncertain, ambiguous, irrelevant.

The Court finds Plaintiff’s objections boilerplate. It is completely unclear how the witness statements are privileged or otherwise not discoverable.

The Court finds Plaintiff’s objections boilerplate. It is completely unclear how the witness statements are privileged or otherwise not discoverable. Moreover, the request explicitly excludes communications with Plaintiff’s attorney, so those communications could not be privileged.

Again, these objections are boilerplate. This request is clearly relevant to the case at hand and Plaintiff does not specify how the information sought would be privileged if it concerns the very incident at the heart of the complaint.

No. 5 seeks documents provided by Plaintiff to any person who investigated Plaintiff’s allegations on Plaintiff’s behalf.

No. 7 seeks documents reflecting Plaintiff’s contention as to when she relinquished the baby for adoption.

Plaintiff’s intention to relinquish her child and her alleged reliance on Defendant in making that decision are both disputed, therefore this RFP clearly seeks relevant evidence. As these issues are essential to the litigation, and Plaintiff does not specify how these requests seek privileged information, the motion is GRANTED as to RFP No. 7.

No. 10 seeks documents reflecting to whom Plaintiff alleges she advised that the adoption of the boy was premised on two factors as alleged in paragraph 6 of the complaint.

The two factors mentioned in this demand relate to the alleged misrepresentations by Defendant to Plaintiff that induced Plaintiff to give her baby up for adoption. This RFP seeks documents or other evidence of these misrepresentations. Plaintiff’s boilerplate objections are overruled. The motion is GRANTED as to RFP No. 10.

No. 19 seeks documents evidencing facts Plaintiff contends support the cause of intentional misrepresentation.

No. 20 seeks documents evidencing facts Plaintiff contends support the cause of negligent misrepresentation.

No. 21 seeks documents evidencing facts Plaintiff contends support the cause of breach of written contract.

No. 22 seeks documents evidencing facts Plaintiff contends support the cause of breach of oral contract.

The Court sustains Plaintiff’s objections to RFPs Nos. 19-22. Blanket requests concerning all facts concerning Plaintiff’s claims are overbroad.

No. 23 seeks documents evidencing facts Plaintiff contends support her allegations of “severe financial and irreparable personal and devastating harm and detriment,” as alleged in the prayer for damages.

No. 24 seeks documents evidencing facts Plaintiff contends support her allegations that she is entitled to punitive damages.

Plaintiff asserts the same objections to Nos. 23 and 24 as to Nos. 19-22, namely that the requests are overbroad.

However, the Court finds that the requests for support of claims of punitive damages and severe financial and personal harm arising from the subject incident are sufficiently narrow. Thus, the motion is GRANTED as to RFPs Nos. 23 and 24.

No. 29 seeks communication between Plaintiff and Defendant and communications about Plaintiff’s allegations.

Plaintiff asserts boilerplate objections to No. 29. Therefore, and because the request seeks communications that are necessary unprivileged as they were shared with Defendant, the motion is GRANTED as to RFP No. 29.

Thus, as the requests seek clearly relevant documents, the motion is GRANTED as to RFPs Nos. 31 and 32.

Defendant requests sanctions in the amount of $2,632 in connection with this motion.

Here, considering that Plaintiff was partially justified in objecting to certain RFPs, the Court finds that sanctions are not merited.

The Motion to Compel Further Responses to Form Interrogatories (Set One) is GRANTED in full.

The Motion to Compel Further Responses to Request for Production (Set One) is GRANTED as to 1-5, 7, 10, 23-24, 29, and 31-32 and DENIED as to 19-22.

Defendant shall provide verified responses without objection to the above discovery within 20 days.

In connection with the above motions, the Court awards sanctions in the reduced amount of $1,500 in favor of Defendant, payable within 20 days.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.