Judge: Malcolm Mackey, Case: 20STCV29246, Date: 2023-02-17 Tentative Ruling

Case Number: 20STCV29246    Hearing Date: February 17, 2023    Dept: 55

SHASHA ZHENG v. XIUYUAN HU                                                         20STCV29246

Hearing Date:  2/17/23,  Dept. 55

8:      MOTION TO COMPEL FURTHER DISCOVERY RESPONSES FROM PLAINTIFF AND CROSS-DEFENDANT SHASHA ZHENG, REQUEST FOR PRODUCTION OF DOCUMENTS (SET THREE).

Notice:  Okay

Opposition

 

MP:  Defendant/Cross-Complainant

RP:  Plaintiff/Cross-Defendant

 

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 6th Cause of Action for THEFT PURSUANT TO PENAL CODE §496, and 7th 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 party requests an order compelling further document responses, and requests monetary sanctions, on bases including the following:

 

·         Opposing party must provide the identifying information of fact witness and potential co-cross-defendant Zhang Tien Tien

·         Plaintiff provided evasive and self-contradicting and untrue responses to Request No. 33, 34, 35, 36 and 37.

·         As to request 33, Plaintiff responded in part:

“After a diligent search and a reasonably inquiry made to locate the item demanded, the Responding Party is unable to comply with the demand as they have never existed, has been lost or stolen, or destroyed, or she has never been in possession, custody or control of said documents in excess of what has previously been produced.”  “Responding Party reasonably believes that, if any documents exists [sic], Zhang Tien Tien, who can be contacted via email at ttzhang0814@163.com, has said documents in his possession, custody or control that may be responsive to this demand.”

·         Plaintiff possesses the identifying information of Zhang, but she refused to provide it to the moving party, on the grounds that Zhang resides in China and Plaintiff is worried that the moving party would “harass” Zhang by issuing him or her deposition subpoenas or name him or her as a co-cross-defendant in this action.

·         In her original responses dated December 2, 2022, Plaintiff produced her responsive documents in PDF format. As the moving party could not access some of the email attachments in these PDF files produced by Plaintiff, he requested Ms. Abellada to produce these emails in their native format instead.

·         Later produced emails contradicted Plaintiff’s original verified response (dated December 2, 2022) to RPD No. 34, 35, 36, and 37, which all stated: “After a diligent search and a reasonably inquiry made to locate the item demanded, the Responding Party will comply in full by producing all documents in her possession, custody or control.” 

·         “This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”  CCP Sect. 2030.230.

·         Plaintiff and her attorneys of record to jointly and severally pay expenses reasonably incurred by the moving party as a result of their failure to participate in meaningful meet and confer. Cal. Code Civ. Proc. §2023.020.

 

 

RP Positions

 

Opposing party advocates denying, and imposing monetary sanctions, for reasons including the following:

 

·         Defendant’s declaration does not address his burden to establish “good cause” and only contains conclusions rather than specific facts regarding the issues raised in the motion.

·         Each of Plaintiff’s responses to Defendant’s requests were accurate and code-compliant as written in the original verified response per the requirements of CCP §2031.01.

·         The Discovery Act does not require more specificity as to why the documents have never existed or why they have been lost.

·         Electronic documents already were produced in a usable form.  “The ‘reasonable expense’ of translating the data into ‘reasonably usable form’ must be paid by the demanding party.” Weil & Brown, Californian Practice Guide: Civil Procedure Before Trial, 8:1472.10 (citing CCP §2031.280(e)).

·         Plaintiff produced organized documents to Defendant in a folder marked “34, 35, 36 and 37” to show that the documents are responsive to Request for Production of Documents, Set Three, request number 34, 35, 36 and 37.

·         Plaintiff provided Zhang Tien Tien’s name and email address to Defendant so that he could contact her to obtain her address and telephone number, as to which Plaintiff stated valid privacy objections.

·         Defendant is a self-represented litigant not entitled to recover fees as discovery sanctions. Argaman v. Ratan (1999) 73 CA4th 1173, 1179; Keravitz v. Sup.Ct. (Milner) (2001) 91 CA4th 1015, 1021.

 

 

Tentative Ruling

 

The motion is denied.

The opposing request for monetary sanctions is denied, the Court finding substantial justification for some positions of each side.

The Court determines that the most recent responses are in compliance, and sustains the third-party-privacy objection as to disclosing an address and telephone number.

The burden to show good cause for production “is met simply by a fact-specific showing of relevance.” Tbg Ins. Servs. Corp. v. Sup. Ct. (2002) 96 Cal. App. 4th 443, 448;  Glenfed Development Corp. v. Sup. Ct. (1997) 53 Cal. App. 4th 1113, 1117.  "[E]ven when no . . . supporting affidavits are filed . . .good cause may be found in the pleadings theretofore filed in the action."  Greyhound Corp.  v.  Sup.  Ct.  (1961) 56 Cal.2d 355, 389,  superseded by statute on other grounds as stated in  Dowden v. Sup. Ct. (1999) 73 Cal. App. 4th 126, 132.

A document response must consist of:  1) an agreement to comply, stating whether the productions or inspection will be allowed “in whole or in part,” and that all documents or things in the possession, custody or control of the respondent, as to which no objection is made, will be included, by the date set for inspection (unless informally extended in writing, or the designated timing is subject to objection);   2) a representation of inability to comply, with a specification of any person believed or known to have possession of documents;  or, 3) objections and specification of withheld documents.  CCP §§2031.210(a), 2031.220, 2031.270, 2031.280(b).  

 Compliance includes all documents or things in the demanded category that are in the “‘possession, custody, or control’” of the responding party, such as from other corporations.  Roche v. Hyde (2020) 51 Cal.App.5th 757, 813  (quoting CCP  § 2031.220).

With regard to document requests, a response expressing an inability to comply shall state that a diligent search and reasonable inquiry was made to locate the items, and the reason for an inability to comply, including that the item never existed, was lost or stolen, was destroyed, or is not in respondent’s possession, along with the identity and address of anyone believed to have the document.  CCP §2031.230. 

“Even where a party deems a demand to be objectionable, he [she, or it] still must identify those items which fall into the category of item in the demand to which an objection is being made.”  Standon Co. v. Sup. Ct. (1990) 225 Cal. App. 3d 898, 901 n.3.

“Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.”  CCP § 2031.280(a).

Conversions between computer file formats is not required by the California Discovery Act.  “If necessary,” the responding party must “through detection devices, translate any data compilations included in the demand into reasonably usable form’ at the ‘reasonable expense of the demanding party.”   CCP § 2031.280(e).

A motion to compel further discovery responses cannot be granted based on the reason that verified answers served are really untrue.  Holguin v.  Sup.  Ct.  (1972) 22 Cal.App.3d 812, 820, 821.  There is no statutory requirement for respondents to correct untruthful discovery responses, but instead an intentional failure to amend the responses creates the risks of prosecution for perjury, or monetary sanctions.  Guzman v. General Motors Corp. (1984)154 Cal. App. 3d 438, 442-43 n. 4.  A respondent cannot be compelled to admit a fact in discovery, even where its truth is obvious.  Wimberly v. Derby Cycle Corp. (1997) 56 Cal. App. 4th 618, 634;  Smith v. Circle P Ranch Co. (1978) 87 Cal. App. 3d 267, 273.  The service of willfully false discovery responses is not covered by the current version of the Civil Discovery Act.  Saxena v. Goffney (2008) 159 Cal.App.4th 316, 333.

There is a privacy interest against disclosure of addresses and telephone numbers.  Planned Parenthood Golden Gate v. Sup. Ct. (2000) 83 Cal.App.4th 347, 367,  disapproved on other grounds by  Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557;  Morales v. Sup. Ct. (1979) 99 Cal. App. 3d 283, 291;  Board of Trustees v. Sup. Ct. (1981) 119 Cal. App. 3d 516, 529, disapproved on other grounds by  Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 557.  Addresses and telephone numbers of employees deserve some privacy protection.  Belaire-West Landscape, Inc. v. Sup. Ct.  (2007) 149 Cal.App.4th 544, 561.  Addresses are private.  Puerto v. Sup. Ct. (2008) 158 Cal.App.4th 1242, 1254;  Lori v. Med. Bd. (2000) 78 Cal.App.4th 462, 468;  City of San Jose v. Sup. Ct.  (1999) 74 Cal.App.4th 1008 n. 5. 

A decision whether to impose sanctions for failures to meet and confer has been reviewed on appeal for an abuse its discretion.  Parker v. Wolters Kluwer U. S., Inc. (2007) 149 Cal. App. 4th 285, 297;   Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal. App. 4th 1109, 1124.

Generally, monetary sanctions are mandatory as to parties losing discovery motions, unless courts find substantial justification or other injustice.  E.g.,  Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58.  “ ‘[S]ubstantial justification” has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact.”  Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.