Judge: Matthew C. Braner, Case: 37-2021-00051912-CU-DF-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Defamation Motion Hearing (Civil) 37-2021-00051912-CU-DF-CTL YUNG VS TIAN [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Shangxiu Tian's motion for terminating sanction is DENIED.

Defendant's motion to inspect Plaintiff Paul Yung's three suspicious emails is DENIED.

Terminating Sanction Defendant seeks a terminating sanction pursuant to subdivision (d)(1) of Code of Civil Procedure section 2023.030, which states: 'The court may impose a terminating sanction by one of the following orders: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.' Terminating sanctions are rarely issued, and are typically preceded by a history of discovery abuse and at least one (often more) failure to comply with a court's discovery order. (See, e.g., Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 277-280.) Here, Defendant's basis for the motion is not Plaintiff's failure to comply with a court discovery order; rather, Defendant again hurls the same inflammatory accusations of fraud and perjury that pervade nearly all of her voluminous motions over the past year. Aside from the impropriety of seeking a terminating sanction on the basis of uncharged and unproven criminal conduct, Defendant is effectively seeking untimely reconsideration of her previously denied motion to complain about criminal conduct. (ROA #426.) Accordingly, the motion is denied.

Not for the first time, Defendant is attempting to try this case via motion practice, which is unfairly burdensome on the court, on Plaintiff, and on his counsel. This case was filed less than two years ago, yet the ROA entries currently reach 553, solely because of Defendant's frivolous, vexatious motion practice. The court warned Defendant that if she continued with such conduct, it would give serious consideration to a Code of Civil Procedure section 128.5 sanction. At this point, the court may also be inclined to find that Defendant is a vexatious litigant within the meaning of Code of Civil Procedure section 391, subdivision (b)(3).

Motion to Inspect Defendant moves to compel an inspection of three emails she obtained in discovery from Plaintiff in June and September 2022. Defendant thereafter propounded request for production set five, which requested production of the same emails, in native format, that had already been produced. Defendant contends the emails produced contain are fraudulent or false evidence because different inconsistent versions of the emails were produced.

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2988251  21 CASE NUMBER: CASE TITLE:  YUNG VS TIAN [IMAGED]  37-2021-00051912-CU-DF-CTL Defendant does not appear to dispute that she has the emails in their native format; rather, she demands that she be able to witness Plaintiff 'log into his Gmail account and open those three specific emails in front of Defendant.' (ROA #552, Defendant's Reply, p. 3:8-11.) The court declines to allow this kind of harassing behavior. Defendant's arguments are in effect trial arguments related to credibility and the weight of evidence, which are not appropriate to consider on a discovery motion. Accordingly, Defendant's motion to compel is denied.

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