Judge: Malcolm Mackey, Case: 20STCV29246, Date: 2022-10-28 Tentative Ruling


Case Number: 20STCV29246    Hearing Date: October 28, 2022    Dept: 55

SHASHA ZHENG v. XIUYUAN HU                                                         20STCV29246

Hearing Date:  10/28/22,  Dept. 55

#7:      MOTION FOR TERMINATING SANCTIONS.

Notice:  Okay

Opposition

 

MP:  Defendant/Cross-Complainant

RP:  Plaintiff/Cross-Defendant

 

Summary

 

On 8/3/20, Plaintiff/Cross-Defendant SHASHA ZHENG filed a Complaint alleging:  Starting August 2, 2017, the day after the parties stated date of marriage separation, Defendant/Cross-Complainant XIUYUAN HU withdrew $13,314.16 total from bank accounts that Defendant orally agreed were her separate property acquired outside of marriage, and Plaintiff relied on Defendant’s representations as a knowledgeable law student, regarding filing a Joint Petition for Dissolution of Marriage based on having no community assets.  Further, Defendant inflicted emotional distress when he falsely emailed to Plaintiff’s employer that Plaintiff had faked practicing her employing entity’s religion, and that Plaintiff hacked Defendant's email and was engaged in espionage for the Chinese government.

The Plaintiff’s causes of action are:

1.      FRAUD

2.      CONVERSION

3.      UNJUST ENRICHMENT

4.      DEFAMATION

5.      INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

 

On 2/1/21, Defendant XIUYUAN HU filed a Cross-Complaint against Plaintiff and counsel STEPHEN M. MARTIN, alleging that MARTIN knew the statements in his press release pertaining to the Complaint are false, and ZHENG and MARTIN are the authors or principals of agents who wrote an article and recorded a YouTube video, containing defamatory statements about HU, and ZHENG withdrew some of HU’s money from their joint account.

Cross-Complainant’s claims are:

1. LIBEL

2. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

3. CONVERSION

4. UNJUST ENRICHMENT

5. PRELIMINARY AND PERMANENT INJUNCTION.

 

 

MP Positions

 

Moving party requests an order imposing terminating and monetary ($5,261.65) sanctions against Plaintiff, on bases including the following:

 

·         Plaintiff failed to comply with the Court’s discovery order dated June 7, 2022.

·         Zheng provided unacceptably inadequate supplemental responses that only created additional questions.

·         Zheng stated in her supplemental discovery response that “a friend assisted her and had the August 11th document posted on SINA WEIBO,” but she has refused to provide any identifying information of her “friend” or produce any responsive documents relating to their communications with the media. Zheng’s “friend” is at least a material fact witness and potentially a co-cross-defendant.

·         Zheng has essentially copied and pasted her previous inadequate discovery responses pertaining to her religious faith, and retaliation against her former student Victoria Couch over disability accommodations. As Zheng’s claim of IIED is entirely based on a letter Hu wrote to her employer in 2018 which specifically questioned her religious faith and retaliation of her former student Victoria Couch. Since Zheng contends that such allegations are false and outrageous, she has put her religious faith and retaliation of Victoria Couch over disability accommodations at issue.

·         Zheng had been criticized by her supervisor in pertinent sections of her annual faculty evaluation for not accepting Christ and building a Christian faith. See Hu’s Decl. ¶20. Hence, Zheng must produce the pertinent sections of her annual faculty evaluations touching upon her Christian faith or the lack thereof during the course of her marriage with the Cross-Claimant.

 

 

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         Plaintiff properly responded to interrogatories and document requests.

·         Objections were proper as to document request number 27.  Issues regarding Plaintiff’s religious beliefs are not relevant.  Truth is not a defense to the Defendant’s attempt to inflict emotional distress upon Plaintiff and possibly even cause her termination from employment.

·         Objections were proper as to document request numbers 23, 24, 25 and 28.  Issues regarding Plaintiff’s former student Victoria Couch are not relevant to this litigation. Any records relating to the student would be private education records and the student would have to be notified of an opportunity to object.

 

 

Tentative Ruling

 

The motion is denied.

There was no disobeying a discovery order.  Specifically, the June 7, 2022 order compelling further responses so that they contained elements specified in the Discovery Act, did not include any order requiring detail about a friend or overruling objections, but instead stated, “some of the discovery objections may have merit.”

A way of seeking such an order compelling responses could have been to file a timely motion to compel further supplemental responses. Motions to compel further responses as to interrogatories and document requests must be served 45 days from the date of the original, or supplemental, responses.  CCP §§2030.300(c), 2031.310(c).  

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions.  E.g., CCP §§2023.010(g), 2030.290(c);  R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.  

“Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice” for showing direct relevance as to private information sought in discovery.  Davis v. Sup. Ct. (1992) 7 Cal. App. 4th 1008, 1017-20 (directing trial court to grant motion to quash as to discovery request that was not narrowly drawn to enable the court to evaluate the appropriate extent of disclosure).  Absent showings of direct relevance, compelling need, and unavailability of alternative sources, a trial court only could find that a privacy interest prevails.  Ombudsman Services of No. Cal. v. Sup. Ct. (2007) 154 Cal.App.4th 1233, 1251,  disapproved on other grounds by  Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557.

“In those situations where it is argued that a party waives protection by filing a lawsuit, the court must construe the concept of ‘waiver’ narrowly and a compelling public interest is demonstrated only where the material sought is directly relevant to the litigation.”   Tylo v. Sup. Ct. (1997) 55 Cal. App. 4th 1379, 1387.

Under state law, school institutions cannot permit access to student private records (i.e., information directly related to students and maintained by educational institutions) absent written parental consent or a court order, and, under preemptive federal law, schools may lose federal funding, if ordered to disclose redacted records after an in camera inspection, with limited exceptions (i.e., crime victims, crime determinations, legitimate educational interest in student’s behavior, and disclosure to parent or guardian re alcohol or controlled substance).  Rim of the World Unified School Dist. v. Sup. Ct. (2002) 104 Cal. App. 4th 1393, 1396-98 (citing, e.g., Educ. C. §§48918, 49076, and 20 U.S.C. § 1232g(a)(4)(A)).  See also  Poway Unif. Sch. Dist. v. Sup.Ct. (1998) 62 Cal. App. 4th 1496, 1507 (Like FERPA, Education Code section 49061(b) broadly defines pupil records, and prohibits release upon written parental consent or a judicial order). 

There is a privacy interest as to educational records maintained, in the normal course of business by a school custodian, including registration, schedules, transcripts and discipline.  BRV, Inc. v. Sup. Ct. (2006) 143 Cal. App. 4th 742, 754 ("A pupil record is one that ‘directly relates’ to a student and is ‘maintained’ by the school.").

A third party must be notified (e.g., by letter or e-mail), and given an opportunity to either consent or object, before discovery responses revealing their private information, and the parties cannot waive such rights of third parties. Belaire-West Landscape, Inc. v. Sup. Ct.  (2007) 149 Cal.App.4th 554, 561-62;  Pioneer Electronics (USA), Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 374-75;  DOE 2 v. Sup. Ct. (2005) 132 Cal.App.4th 1504, 1521. 

There is a privacy interest as to one's personnel files.  BRV, Inc. v. Sup. Ct. (2006) 143 Cal. App. 4th 742, 756;  Teamsters Local 856 v. Priceless, LLC (2003) 112 Cal. App. 4th 1500, 1515, disapproved on other grounds by  Int’l Fed. of Prof. and Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal.4th 319, 336.

Discovery sanctions are not to be imposed for punishment, but instead are used to encourage a fair disclosure of discovery to prevent unfairness resulting from the lack of information. Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal. App. 4th 1161, 1183;  McGinty v. Sup. Ct. (1994) 26 Cal. App. 4th 204, 214;  Midwife v.  Bernal (1988) 203 Cal.App.3d 57, 64, superseded on other grounds as stated in  Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971.