Judge: Mark C. Kim, Case: 21LBCV00424, Date: 2023-05-18 Tentative Ruling
Case Number: 21LBCV00424 Hearing Date: May 18, 2023 Dept: S27
1. Procedural
History of Motions
On 1/24/23, Plaintiff and
Cross-Defendant, Say Eng filed motions to compel further responses, setting
them for hearing on 2/21/23. Proof of
service was filed showing service on Defendant, Maria I. Haban by email service
on her attorney, C. Tracey Kayser.
On 2/02/23, Haben filed a
substitution of attorney, pursuant to which Kayser ceased representing her and
she commenced representing herself.
On 2/06/23, Eng filed a notice of
continuance of the hearing date on the motions, which reflected the prior
hearing date of 4/18/23. Eng filed proof
of service of the notice on Haban by email at mh18308@yahoo.com.
Prior to the hearing, the Court
issued a tentative ruling continuing the hearing on the motions due to
insufficient service because, pursuant to
CRC 2.251(c)(3)(B), self-represented parties can only be served by email if
they serve and file a notice specifically consenting to email service.
On 4/17/23, the day before the
prior hearing date, Haban, in pro per, filed opposition to the motions. On 4/18/23, the Court adopted its tentative
ruling as its final ruling, and the hearing was continued to 5/18/23. The same day, Plaintiff filed proof of service
of the moving papers on Haban by mail.
2. Motion
to Compel Further Response to Supplemental Interrogatory 1
Plaintiff propounded supplemental
interrogatory 1, which asks Defendant to identify any answer to a previously
served interrogatory that is incomplete and to state whatever information is
necessary to make it complete as of this date.
Haban responded by stating none of
her prior answers were incomplete, but discovery remains ongoing. Plaintiff shows, in the moving separate statement,
however, that this is incorrect. Haban never
responded for FROG 15.1 in the first round of responses, and therefore her
prior answer is necessarily not complete.
Haban filed opposition to the motion, but the opposition does not directly
address the issue: whether her response to FROG 15.1, or supplemental
interrogatory 1 as it relates to 15.1, is full and complete.
The motion to compel is
granted. Haban must provide a response
to supplemental interrogatory 1 as it relates to previously served FROG
15.1.
3. Motion
to Compel Further Response to Supplemental RPD 1
Plaintiff propounded supplemental RPD
1, which seeks updated responses to all previously served RPDs. Haban responded that there was nothing
supplemental and her original responses stood.
With respect to numerous categories of documents in the original
production demand, Haban responded that she was unable to comply with the demand
because the documents have never been in her possession and/or control and may
be in the possession and/or control of Co-Defendant, Patrick Chim.
Plaintiff, in the moving papers,
cites Jones v. Superior Court (1981) 119 Cal.App.3d 534, 552 to support the
position that a party upon whom discovery is propounded must produce all
documents in the possession or control of a family member. The Jones Court held that the trial court has
broad discretion with respect to discovery, and affirmed an order finding that
the daughter and mother in that case were in a unique and special relationship that
supported requiring the daughter, a party to the case, to talk to her mother, a
non-party, in order to obtain information necessary to provide full and
complete responses to interrogatories.
Jones is distinguishable for several reasons. First, the family member at issue was not a
party to the case. Second, the discovery
at issue was interrogatories, not documents.
Third, the ruling was largely based on the trial court’s very wide
discretion in ruling on discovery motions.
In this case, Chim is a represented
co-party. The Court finds the
co-defendant is in a better position to provide the requested documents than
his unrepresented wife. The Court has
reviewed Haban’s opposition to the motion, and finds it supports a conclusion that
her husband, Chim, is the party who has the documents and information, and that
she does not.
The motion to compel a further response
to supplemental RPD 1 is denied.
4. Sanctions
Because one motion is granted and
one motion is denied, the Court denies the requests for sanctions.
Eng is ordered to give notice.