Judge: Malcolm Mackey, Case: 20STCV29246, Date: 2023-02-16 Tentative Ruling

Case Number: 20STCV29246    Hearing Date: February 16, 2023    Dept: 55

SHASHA ZHENG v. XIUYUAN HU                                                         20STCV29246

Hearing Date:  2/16/23,  Dept. 55

#8:      

MOTION TO STRIKE DEFENDANT XIUYUAN HU’S NOTICE OF ERRATA REGARDING ALLYSON KOHEN’S CERTIFICATE OF TRANSLATION FILED ON NOVEMBER 8, 2022 AND REQUEST FOR DEFENDANT/CROSS-COMPLAINANT TO PAY PLAINTIFF’S ATTORNEY’S FEES AND COSTS IN THE AMOUNT OF $10,275.44 PURSUANT TO CCP §128.5.

MOTION FOR SANCTIONS.

Notice:  Okay

Opposition

MP:  Plaintiff/Cross-Defendant

RP:  Defendant/Cross-Complainant

Summary

On 8/3/20, Plaintiff/Cross-Defendant SHASHA ZHENG filed a Complaint.

On 11/4/22, Plaintiff filed a motion for leave to file a proposed First Amended Complaint, adding a 6^th Cause of Action for THEFT PURSUANT TO PENAL CODE §496, and 7^th Cause of Action for BREACH OF FIDUCIARY DUTY - DUTY OF LOYALTY.

On 12/9/22, Plaintiff filed a First Amended 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  [OMITTED FROM FIRST AMENDED COMPLAINT].

5.      INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

6.      THEFT PENAL CODE §496(C)

7.      BREACH OF FIDUCIARY DUTY, DUTY OF UNDIVIDED LOYALTY.

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.

Trial is set for 7/31/23.

MP Positions

Moving Plaintiff requests an order striking a notice of errata regarding Allyson Kohen’s Certificate of Translation with the Declaration of Allyson Kohen that were filed on November 8, 2022 by Defendant/Cross-Complainant XIUYUAN HU, and requests monetary sanctions, on bases including the following:

·         Allyson Kohen’s “Certification of Translation” contained misinformation.

·         There are no court certified, registered and enrolled interpreters with the last name Kohen on the California court’s website.  There is no translator with certification number 375941 according to the ATA website.  Other misinformation was discovered.

·         Opposing party should not be able to withdraw the fraudulent document by a notice of errata that is meant for minor changes, in an attempt to avoid sanctions.  E.g., CCP   § 128.5.

RP Positions

Opposing Defendant advocates denying both motions, for reasons including the following:

·         The notice of errata is not a type of document authorized for striking.  CCP   §§  435, 436.

·         There was no bad faith conduct warranting sanctions.

·         At best, the moving party’s Motion to Strike and supporting declarations create a genuine issue of disputed facts, such as if Ms. Kohen is indeed a court certified translator under her former name and whether Ms. Kohen was aware of Mr. Martin and Ms. Abellada’s prior attempts to contact her.

·         As the moving party failed to complied with the 21-day safe harbor rule mandated by CCP sections 128.5 and 128.7, and the Defendant has already withdrawn Ms. Allyson Kohen’s certificate of translation, there is no basis to sanction the Defendant under sections 128.5 or 128.7.

·         Enforcement of the Rules of Professional Conduct lies within the exclusive jurisdiction of the State Bar. (Sheller v. Sup. Ct. (2008) 158 Cal.App.4th 1697, 1710-11.

Tentative Ruling

Both motions are denied.

Notices of errata are not well defined under existing law, such that it is very debatable whether the instant notice of errata, filed 11/8/22, withdrawing Allyson Kohen’s “Certification of Translation,” was proper. 

A notice of errata has been treated as a motion for leave to file an amended document.  Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal. App. 5th 583, 594 n. 5.  A court rejected efforts to correct a pleading caption as to naming parties via a “notice of errata.”  See  Falahati v. Kondo (2005) 127 Cal. App. 4th 823, 832 (“This argument lacks merit. According to plaintiffs' reasoning they could have filed an ‘errata’ to the caption naming as defendants ….”).  Courts have discretion to reject notices of errata that relate to untimely filed documents without good cause including clerical errors.  See  Choi v. Sagemark Consulting (2017) 18 Cal. App. 5th 308, 321  (addressing summary judgment opposition).  A court denied a request to strike a notice of errata, but without any explanation.  See  Hahn v. Diaz-Barba (2011) 194 Cal. App. 4th 1177, 1183 n. 2  (“We deny defendants' motion to strike the notice of errata, insofar as it claims California is Kismet's principal place of business, and accompanying request for judicial notice.”).

Likewise, there is very little law defining the extent of filings that are subject to motions to strike, and so it is debatable whether a notice of errata is authorized for striking.  See generally  Overstock.com, Inc. v. Goldman Sachs Grp., Inc. (2014) 231 Cal. App. 4th 471, 499–500  (materials not connected with a pleading are not subject to motions to strike under CCP §§ 435 and 436, but striking may lie pursuant to inherent powers, such as to court files and records, unduly burdensome evidence and objections, separate statement facts, and scurrilous affidavits).

Further, opposing party’s declaration provides explanations for innocently submitting misinformation, including relying upon another giving the information.

“Both the former and current versions of [CCP] section 128.5 give a trial court discretion to award ‘reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.’ ”  San Diegans for Open Gov’t v. City of San Diego (2016) 247 Cal.App.4th 1306, 1317.

Code of Civil Procedure Section 128.7 requires bad faith conduct by the person to be sanctioned.  Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc. (2013) 217 Cal.App.4th 708, 710  (“attaching the wrong draft of a contract … to a … complaint does not appear to be, under the particular circumstances of this case …, sanctionable at all…. Only lamentable inattention was shown ….”).  “Section 128.7, subdivision (c) does not require the imposition of monetary sanctions upon the finding of a violation of section 128.7, subdivision (b); rather, it gives the trial court discretion to impose sanctions based on such a finding.”  Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal. App. 4th 408, 422.

“[T]o comply with the safe harbor provisions of section 128.7, a party may not bring a motion for sanctions unless there is some action that the offending party may take to withdraw the improper pleading.”  Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 699.

"The trial court's determination that striking the pleading compels dismissal is too severe when counsel is willing (although belatedly) to sign...."  Vaccaro v. Kaiman  (1998) 63 Cal.App.4th 761, 769.  “[S]ection 128.7 may be … interpreted to allow correction of a signature defect in a complaint after the defect is called to the attention of the plaintiff, where the correction is promptly made and the court finds that the plaintiff actually assented to the filing of the action.”  Board of Trustees of Leland Stanford Jr. University v. Sup. Ct.  (2007) 149 Cal.App.4th 1154, 1170.

California Rules of Court, Rule 2.30 affords trial courts the discretion to impose appropriate and reasonable monetary sanctions.  Sino Century Dev. Ltd. v. Farley (2012) 211 Cal.App.4th 688, 700.

“Rather than decide the facts with respect to the intentional destruction of evidence and impose a nonmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, we believe that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial.”   New Albertsons, Inc. v. Sup. Ct.  (2008)  168 Cal.App.4th 1403, 1431.

Appellate courts review a trial court's decision whether to consider late papers based upon the standard of abuse of discretion.  E.g.,  Bozzi v. Nordstrom, Inc.  (2010) 186 Cal.App.4th 755, 765;  Mackey v. Bd. of Trustees of California State Univ. (2019) 31 Cal. App. 5th 640, 657.