Judge: Malcolm Mackey, Case: 22STCV25895, Date: 2023-08-11 Tentative Ruling

Case Number: 22STCV25895    Hearing Date: September 6, 2023    Dept: 55

FANG v. CMB EXPORT INFRASTRUCTURE INV. GROUP 48, L.P.,   22STCV25895

Hearing Date:  9/6/23,  Dept. 55.

#7:   MOTION TO COMPEL DEFENDANT PATRICK F. HOGAN’S FURTHER RESPONSES TO PLAINTIFF FANG’S REQUESTS FOR ADMISSION, SET ONE; REQUEST FOR ORDER AWARDING MONETARY SANCTIONS AGAINST DEFENDANT HOGAN IN THE SUM OF $400.

Notice:  Okay

Opposition

MP:  Plaintiff CHEN FENG.

RP:  Defendant PATRICK F. HOGAN.

Summary

On 8/10/22, plaintiffs CHEN FANG and YU LIN filed a Complaint alleging:

10. In June 2015, Plaintiff Fang, on behalf of Plaintiffs, executed a Limited Partnership Agreement (“LPA,” Exhibit) with Defendant Group 48 LP. Defendant CMB Export and Defendant NK are general partners of the limited partnership, controlled by Defendant Hogan.

11. The purpose of the agreement under the LPA is “[T]he investor seeks to apply for a green card (permanent residenc[y]) under the EB-5 Immigrant Investor Program[,] and does not require an economic profit on his/her investment” (pg.1). Plaintiffs transmitted $550,000 to Defendant Group 48 LP in July 2015.

12. Defendants then made a loan for the construction, renovation and operation of “The Century Plaza Hotel,” currently known as “Fairmont Century Plaza” located at 2025 Avenue of the Stars in Los Angeles, California.

13. In May 2022, Plaintiff Lin became a permanent resident. Plaintiff Fang also has been adjusting status to become a permanent resident.

14. In May and June 2022, Plaintiffs notified Defendants of Plaintiffs’ new status, and requested refund. Plaintiffs sent the third email in July 2022.

15. Defendants denied Plaintiffs’ request in June and July 2022, that Defendants want to see a “denial of [Plaintiffs’] conditional residency and provide notice of such denial to the Partnership…”, and that “In addition, even if [Plaintiffs] were eligible to withdraw from the Partnership…the Partnership at this time is under no obligation to return [Plaintiffs’] capital.”

….

20. The consideration of Plaintiffs’ funding is Defendants’ performance for Plaintiffs to become permanent resident under the EB-5 program, See Supra paragraph 11.

21. Plaintiff Lin is currently a lawful permanent resident. Plaintiff Fang is adjusting status to register permanent residency, he is also unable to become a conditional permanent resident under the EB-5 program. The consideration under the LPA, to apply for a green card under the EB-5 program, becomes entirely void. The consideration has also failed completely, before it is rendered to Plaintiffs, because Plaintiffs’ current status has nothing to do with the EB-5 program.

23. The purpose of the LPA is frustrated, because of a supervening, fortuitous event that, the United States Citizenship and Immigration Services has granted Plaintiffs their current status, and such supervening, fortuitous event has voided, destroyed the value of the consideration to be rendered by Defendants.

24. Because the purpose of the LPA has been frustrated, the consideration for Plaintiffs’ obligation has become void, and failed entirely before rendered, Plaintiffs are entitled to rescind the LPA and recover their property.

(Complaint, ¶¶ 10 – 15 and 20 – 24.)

The causes of action are:

(1) RESCISSION - FRUSTRATION OF PURPOSE.

(2) BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.

(3) UNJUST ENRICHMENT.

MP Positions

Moving party requests an order compelling Defendant PATRICK F. HOGAN’S further admissions responses, an imposing $400 in sanctions on that Defendant, on grounds including the following:

·         Because of Defendant Hogan’ boilerplate, meritless objections in answering the discovery requests, Plaintiffs are unable to proceed with discovery.

·         Counsel met and conferred.

RP Positions

Opposing parties advocate denying, for reasons including the following:

First, the Motion is moot because Hogan has served supplemental responses that resolve

all issues raised in the Motion. Indeed, the Court took Plaintiff’s last motion to compel further responses to special interrogatories off calendar as moot for the same reason. See August 11, 2023 Minute Order, Exhibit 1 to Humphreys Decl.

Second, the Motion has no merit. Plaintiff seek further responses to five requests for

admission (“RFAs”), each of which is facially improper:

No. 1: Are you insolvent?

No. 2: Do YOU CONTROL CMB Export Infrastructure Investment Group 48,

L.P., CMB Export, L.L.C, NK Immigration Services, L.L.C., and CMB

Swiss Co GmbH?

No. 3: Have YOU or PERSON YOU CONTROL solicited investments from

Plaintiff Chen Fang, and/or Plaintiff Yu Lin, other than the investment in

this dispute against YOU in the two years preceding December 1, 2015?

No. 4: Has any PERSON withdrew from CMB Export Infrastructure Investment

Group 48, L.P. in the seven years preceding September 1, 2022?

No. 5: Have YOU or PERSON YOU CONTROL moved funds between EB-5

projects YOU or PERSON YOU CONTROL in the seven years

preceding September 1, 2022?

Hogan objected to each of these RFAs on grounds that they are incapable of response

because they ask open-ended questions in the nature of interrogatories, rather than asking Hogan to “admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact” as required by CCP § 2033.010. Because these are all improper RFAs, they cannot be answered and the Motion must be denied.

Third, the Motion was filed without Plaintiffs first making a “reasonable and good faith

attempt” to meet and confer to address Hogan’s objections to the RFAs as required by CCP §§ 2030.300(b)(1) & 2016.040. Had Plaintiff conducted a proper meet and confer, he presumably would have understood why his RFAs are improper and cannot be answered.

Fourth, the Motion does not include a “separate statement” that identifies each issue for

resolution as required by Cal. Rules Court 3.1345, or a “concise outline” of the discovery request and each response in dispute per CCP § 2030.300(b)(2).

(Opp., pp. 2 – 3.).

Tentative Ruling

The motion is granted.

On or before 9/11/23, responding party Defendant PATRICK F. HOGAN  shall serve further responses, without objections, and in full compliance with the California Discovery Act, CCP §2016.010 et seq., as to the requests for admissions served by moving party Plaintiff CHEN FENG.

On or before that same date, that responding party shall pay discovery sanctions in the sum of $400 to moving party, the Court finding the absence of substantial justification.    E.g., CCP   § 2023.030.

The supplemental response filed after the motion was so minimally changed (as to the premature objection pending demurrer ruled on), that the Court proceeds to rule on the merits.

The admission requests are intelligible enough to respond to, including the words “insolvent,” “control,” “withdrew,” and “moved funds.”

The “open-ended questions” objection is not a cognizable discovery objection, and the instant requests distinguishably have defined limits, such as a defined span of time or a limited type of conduct.

Where respondents served discovery responses after parties have filed motions to compel responses, courts have broad discretion as to ruling, including: 1) denying the motion as moot, in whole or part, where valid responses without objections have resolved the motion;  2) awarding requested sanctions;  3) allowing moving party to take the motion off calendar;  4)  considering the motion as voluntarily narrowed in scope;  5)  compelling responses without objection, where no legally valid responses have been provided, as to some, or all, interrogatories; 6) treating the motion as one to compel further responses, and ruling accordingly, with, or without, a separate statement;  7) ordering the parties to meet and confer;  8)  ordering moving party to file a separate statement;  or, 9) ordering the motion off calendar while requiring the propounding party to file a motion to compel further responses.  Sinaiko Healthcare Consulting, Inc., v. Klugman (2007) 148 Cal.App.4th 390, 409.

Ambiguity objections as to discovery are overruled unless requests are unintelligible.  Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783, superseded by statute on another ground as stated in  Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.  Cf.   Standon Co. v. Sup. Ct. (1990) 225 Cal. App. 3d 898, 901 (ambiguity objection deemed a nuisance objection as to request for any medical bills or expense documentation). 

“Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.”  CCP   § 2033.010.  Requests for admissions may require respondents to apply laws to facts or state opinions related to facts. Garcia v. Hyster Co. (1994) 28 Cal. App. 4th 724, 735; Miller v. American Greetings Corp. (2008) 161 Cal. App. 4th 1055, 1066.  “ ‘[W]hen a party is served with a request for admission concerning a legal question properly raised in the pleadings he cannot object simply by asserting that the request calls for a conclusion of law.’ ”  Joyce v. Ford Motor Co. (2011) 198 Cal. App. 4th 1478, 1488  (quoting  Burke v. Sup. Ct.  (1969) 71 Cal.2d 276, 282).   Where respondents timely responded to requests for admissions, requesting parties may move to compel further answers based upon a showing of some deficiency.  Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 636; CCP §2033.290. 

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.  “‘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.

When no separate statement is filed with a discovery motion, the matter may be ordered off calendar.  BP Alaska Exploration, Inc. v. Sup. Ct. (1988) 199 Cal.App.3d 1240, 1270.  See also  CRC Rule 3.1345 (requirements of discovery separate statements).  Courts have discretion to deny discovery motions where a filed separate statement lacks the content and format required by the California Rules of Court.  Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.  Accord  St. Mary v. Sup. Ct.  (2014) 223 Cal. App. 4th 762, 778.