Judge: Malcolm Mackey, Case: 20STCV29246, Date: 2023-05-05 Tentative Ruling


Case Number: 20STCV29246    Hearing Date: May 5, 2023    Dept: 55

SHASHA ZHENG v. XIUYUAN HU                                                         20STCV29246

Hearing Date:  5/5/23,  Dept. 55

4:      

MOTION TO COMPEL DEFENDANT/CROSS-COMPLAINANT TO PROVIDE FURTHER SUPPLEMENTAL RESPONSES TO REQUEST FOR SPECIAL INTERROGATORES, SET ONE, AND REQUEST FOR MONETARY SANCTIONS AGAINST DEFENDANT IN THE SUM OF $7,551.01.

MOTION TO COMPEL DEFENDANT/CROSS-COMPLAINANT TO PROVIDE FURTHER SUPPLEMENTAL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO (“RFPD2”) AND COMPEL DEFENDANT’S COMPLIANCE TO RFPD2, AND REQUEST FOR MONTEARY SANCTIONS AGAINST DEFENDANT IN THE SUM OF $7,951.01.

MOTION COMPEL DEFENDANT/CROSS-COMPLAINANT TO PROVIDE FURTHER SUPPLEMENTAL RESPONSES TO REQUEST FOR ADMISSIONS, SET TWO, AND REQUEST FOR MONETARY SANCTIONS AGAINST DEFENDANT IN THE SUM OF $7,551.01.

 

Notice:  Okay

Opposition

 

MP:  Plaintiff/Cross-Defendant SHASHA ZHENG.

RP:  Defendant/Cross-Complainant XIUYUAN HU.

 

 

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 responses to special interrogatories, document requests and admission requests, and seeks monetary sanctions, on bases including the following:

 

·         The Court should compel respondent to serve further supplemental code-compliant responses to the Request for Special Interrogatories, Set One, Nos. 8 - 10, 30 - 31, 36 - 53, 55 - 73, 84, 96 - 99, 112 - 114, 120 - 128, 147, 149, and 161.  As of 2/15/23, Defendant only supplemented 15 out of the 121 requests that were deficient.  Defendant still has not produced code-compliant discovery responses without boilerplate objections to most of Plaintiff’s special interrogatories.

·         The Court should compel respondent to serve further supplemental code-compliant responses to the Request for Production of Documents, Set Two, Request Nos. 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 59, 60, 61, 72, 73, 74, 75, 79, 81, 82, 84, 85, 86, 88, 96, 97, 98, 102, 103 and 104, and to produce documents responsive thereto.  Defendant stated that he would produce documents but has failed either failed to do so, or he has not complied with CCP §2031.280 by producing documents that do not specify which request number to which the documents respond to.  Defendant stated that the documents he has “already produced are responsive to multiple requests” and, thus, he would make them clear by March 6, 2023.  Defendant did not produce documents to certain requests even though he stated that he would, and he did not state that he would provide supplemental responses to certain requests.

·         The Court should compel respondent to serve further supplemental code-compliant responses to the Request for Admissions, Set Two, Request Nos. 46, 48, 54, 55, 62 -70, 73 - 75, 85 – 97, 99, 104-106, 108, 109, 114 – 118, 123, 127 – 130, 138, 139, 149 – 155, 161 – 170, 173 – 177, 181, 189, 193 – 196, 201 – 204, 206, 208, 209, 213 – 218,  228, 234, 241, and 243 – 251.  On 2/15/23, Defendant  provided non-code-compliant responses to certain RFA requests and only admitted or denied a handful of them. Many of Defendant’s responses were not code-compliant, as his responses relating to inability to comply did not also state whether he made a reasonable inquiry to persons under his control.  See Plaintiff’s Separate Statement.  Defendant’s stated boilerplate objections are meritless.

 

 

 

RP Positions

 

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

 

·         Plaintiff's counsel’s unwillingness to engage in good faith discussions and insistence on filing the motions, despite Defendant’s attempts to resolve the disputes informally, warrant denial and the imposition of sanctions against Ms. Abellada.

·         Defendant made multiple attempts to resolve the parties’ disputes informally, including providing verified supplemental responses to Plaintiff’s RFA on February 15, 2023, and providing two further supplemental and code-compliant responses on March 20, 2023 and April 13, 2023 even after Plaintiff filed the Motion on March 1, 2023. See Decl. Hu ¶¶ 6-47; “Exhs. A-J.”

·         The Court should significantly reduce Ms. Abellada’s attorney’s fees, as she has weaponized the discovery process to unjustly enrich herself by billing her client tens of thousands of dollars and perhaps giving Plaintiff a sense of false hope that she may eventually recover her attorney’s fees from the Defendant if she prevails on her discovery motions that are devoid of both substantive and procedural merit.

 

 

 

Tentative Ruling

 

All three motions are granted.

On or before 5/19/23, responding party Defendant/Cross-Complainant XIUYUAN HU shall serve further responses, and produce documents, and in full compliance with the California Discovery Act, CCP §2016.010 et seq., as to the special interrogatories, requests for documents and requests for admissions served by moving party.

Further, on or before that same date, the responding party, shall pay discovery sanctions in the total requested sum of $25,053.03 to moving Plaintiff SHASHA ZHENG.

The Court finds the absence of substantial justification for the oppositions, and notes that they lack of any argument about which amounts of sanctions should be reduced as being unreasonable, in instead arguing that the motions were weaponized and meritless, although the Court to the contrary now finds that they have merit and should be granted.    E.g., CCP   § 2023.030.

The opposing declaration, including especially exhibit “J,” shows that after extensive meeting and conferring, respondent provided statutorily noncompliant supplemental responses, in the form of meet-and-confer emails, instead of in verified responses.

An unverified discovery response is treated as no response.  Steele v.  Totah (1986) 180 Cal.App.3d 545, 549;  Appleton v.  Sup.  Ct.  (1988) 206 Cal.App.3d 632, 636-37.  “The party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections.” CCP §2030.250(a).  “‘The party to whom the demand for inspection is directed shall sign the response under oath unless the response contains only objections.’"  Blue Ridge Ins. Co. v. Sup. Ct. (1988) 202 Cal. App. 3d 339, 344.

Next, a discovery motion should not be denied automatically based upon the reason that the moving parties failed to meet and confer in good faith.  Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 434.  But see Townsend v. Sup. Ct. (1998) 61 Cal.App.4th 1431, 1439 (motion must be denied where lack of meet and confer).  “‘A determination of whether an attempt at informal resolution is adequate . . . involves the exercise of discretion.’”  Stewart v. Colonial W. Agency (2001) 87 Cal. App. 4th 1006, 1016.  Accord Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293-94.

Finally, 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.  Monetary discovery sanctions must be reasonable in amount.  Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.