Judge: Michael P. Linfield, Case: 21STCV33378, Date: 2023-05-09 Tentative Ruling

Case Number: 21STCV33378    Hearing Date: May 9, 2023    Dept: 34

SUBJECT:         Motion to Compel Deposition and Production of Documents, and Request for Sanctions

Moving Party:  Defendant Lin Dee Liu

Resp. Party:    Plaintiff NIVO-1, LLC

SUBJECT:         Motion to Compel Responses to Form Interrogatories, and Request for Sanctions

Moving Party:  Defendant Lin Dee Liu

Resp. Party:    Plaintiff NIVO-1, LLC

SUBJECT:         Motion to Compel Responses to Special Interrogatories, and Request for Sanctions

Moving Party:  Defendant Lin Dee Liu

Resp. Party:    Plaintiff NIVO-1, LLC

SUBJECT:         Motion to Compel Responses to Requests for Production of Documents, and Request for Sanctions

Moving Party:  Defendant Lin Dee Liu

Resp. Party:    Plaintiff NIVO-1, LLC

Defendant’s FROGs Motion is DENIED as moot.

Defendant’s SROGs Motion is DENIED as moot.

Defendant’s RPDs Motion is DENIED as moot.

The Requests for Sanctions associated with the FROGs Motion, SROGs Motion, and RPDs Motion are GRANTED. Monetary sanctions are AWARDED in favor of Defendant and against Plaintiff and Plaintiff’s former Counsel in the total amount of $2,625.00 for these motions.

Defendant’s Deposition Motion is GRANTED.

Plaintiff’s person most qualified shall be made available for deposition within 14 days of the issuance of this Order.

        The Request for Sanctions associated with the Deposition Motion is DENIED.

BACKGROUND:

On September 10, 2021, Plaintiffs NIVO-1, LLC and Anne Kihagi filed their Complaint against Defendants Ami Kimoto, Weimin Liu, and Lin Dee Liu regarding causes of action arising from a series of loans the Parties were involved in.

On October 29, 2021, Plaintiffs filed their First Amended Complaint.

On January 24, 2022, the Court: (1) determined that Plaintiff Anne Kihagi is a vexatious litigation, pursuant to Code of Civil Procedure section 391; and (2) entered a order prohibiting her from filing any new litigation in the courts of California in propria persona without first obtaining leave of the president judge or justice of the court where the new litigation is to be filed, pursuant to Code of Civil Procedure section 391.7, subdivision (a).

On May 11, 2022, the Court dismissed with prejudice Plaintiff Anne Kihagi from the First Amended Complaint because Plaintiff Anne Kihagi failed to post a security bond as previously ordered by the Court on February 4, 2022.

On April 13, 2023, Defendant Lin Dee Liu filed:

(1)       Motion to Compel Deposition and Production of Documents, and Request for Sanctions (“Deposition Motion”);

(2)       Motion to Compel Responses to Form Interrogatories, and Request for Sanctions (“FROGs Motion”);

(3)       Motion to Compel Responses to Special Interrogatories, and Request for Sanctions (“SROGs Motion”); and

(4)       Motion to Compel Responses to Requests for Production of Documents, and Request for Sanctions (“RPDs Motion”).

With each of the motions, Defendant Lin Dee Liu filed:

(1)       Memorandum of Points and Authorities; and

(2)       Declaration of Ravi D. Sahae.

On April 17, 2023, Defendants Lin Dee Liu, Ami Kimoto, and Weimin Liu filed their Answer to the First Amended Complaint.

On April 26, 2023, Plaintiff NIVO-1, LLC (“Plaintiff”) filed its Opposition to Motion to Compel Discovery Responses and Compel Deposition (“Combined Opposition”). Plaintiff concurrently filed Declaration of June D. Coleman.

On May 2, 2023, Defendant Lin Dee Liu (“Defendant”) filed her Reply to Plaintiff’s Combined Opposition Brief for Motions to Compel Discovery Responses and Deposition (“Combined Reply”). Defendant concurrently filed:

(1)       Declaration of Ravi D. Sahae; and

(2)       Proof of Service.

ANALYSIS:

        For clarity and ease of analysis, the Court first concurrently considers the FROGs Motion, SROGs Motion, and RPDs Motion. The Court then considers the Deposition Motion.

I.           FROGs Motion, SROGs Motion, and RPDs Motion

A.      Legal Standard

California Code of Civil Procedure requires a response from the party to whom form interrogatories, special interrogatories, and demand requests are propounded within 30 days after service of the requests, unless the time is extended by agreement of the parties. (Code Civ. Proc., §§ 2030.260, subd. (a), 2030.270, subd. (a), 2031.260, subd. (a), 2031.270, subd. (a).) If a party fails to serve timely responses, "the party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc., § 2030.300, subd. (b).) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc., § 2030.290, subd. (a).)

For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905, 906.) Indeed, "[o]nce [a party] 'fail[ed] to serve a timely response,' the trial court had authority to grant [opposing party's] motion to compel responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel motions for interrogatories or requests for production, unless the Court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).) 

B.      Discussion

1.       Discovery

On March 10, 2023, Defendant served form interrogatories (“FROGs”), special interrogatories (“SROGs”), and requests for production of documents (“RPDs”) on Plaintiff. (FROGs Motion, p. 2:4–6; SROGs Motion, p. 2:4–6; RPDs Motion, p. 2:4–6.)

On April 13, 2023, Defendant filed the FROGs Motion, SROGs Motion, and RPDs Motion because no responses were provided, even though responses were due on April 11, 2023. (Id.)

On April 13, 2023, Plaintiff served responses to the various discovery requests. (Decl. Coleman, Exhs. A–C.) It is unclear whether the responses were served before or after the filing of the motions, as the evidence provided does not include signed proofs of service. (Decl. Coleman, Exhs. A–C; see also Combined Reply, fn. 1.)

        As responses have been served, the FROGs Motion, SROGs Motion, and RPDs Motion are moot.

        The Court DENIES as moot the FROGs Motion, SROGs Motion, and RPDs Motion.

2.       Sanctions

Defendant requests against Plaintiff and its then-Counsel: (1) $1,500.00 in monetary sanctions for the FROGs Motion; (2) $1,312.50 in monetary sanctions for the SROGs Motion; and (3) $1,312.50 in monetary sanctions for the RPDs Motion. (FROGs Motion, p. 3:21–25; SROGs Motion, p. 3:21–25; RPDs Motion, p. 3:21–25.) Defense Counsel declares that these sanctions are requested based on various amounts of hours done at $375.00 per hour. (Decls. Sahae, ¶ 7.)

Plaintiff argues: (1) there was no meet and confer effort; (2) responses were provided prior to the filing of the motions to compel; (3) Plaintiff’s then-Counsel had extenuating medical circumstances; and (4) Sinaiko Healthcare Consulting, Inc. is inapposite here. (Combined Opposition, p. 9:3–6.)

Defendant responds: (1) Plaintiff’s response was untimely and noncompliant; (2) no meet and confer was required; and (3) that Plaintiff did not act with civility. (Combined Reply, pp. 3:4–5, 6:20.)

For the reasons listed below, the Court fully agrees with Defendant’s argument that monetary sanctions are appropriate here.

The discovery responses were served late.

The discovery responses are not acceptable responses in any sense of the word acceptable — each response is an objection, not based on evidence, but instead stating that Plaintiff’s then-Counsel was on medical leave. Yet the discovery requests were served on March 10, 2023 and Plaintiff’s former Counsel had surgery on March 29, 2023 — with what appears to be weeks, if not months, of prior notice about the surgery. There should have been plenty of time for Plaintiff’s former Counsel to have responded; there certainly was sufficient time for Plaintiff’s former Counsel to have prepared a contingency plan knowing that she would be on medical leave.

There is no meet and confer requirement for motions to compel initial discovery.

Regardless of whether Sinaiko is on point or not, the Court does not have evidence before it that would indicate there is substantial justification or other circumstances that would make the imposition of a sanction unjust for Plaintiff’s failure to timely respond to the FROGs, SROGs, and RPDs. Thus, the Court must impose a monetary sanction on Plaintiff. (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).)

The Court finds reasonable Defense Counsel’s hourly rate. However, this amount of sanctions for the three motions is unreasonable.  The Court will award sanctions for 7 hours or work at $375.00/hour.  Since Defense counsel has not requested costs incurred in filing these motions, the Court will not award costs.

The Court awards a total of $2,625.00 in monetary sanctions in favor of Defendant and against Plaintiff and Plaintiff’s former Counsel, jointly and severally.

C.      Conclusion

Defendant’s FROGs Motion is DENIED as moot.

Defendant’s SROGs Motion is DENIED as moot.

Defendant’s RPDs Motion is DENIED as moot.

The Requests for Sanctions associated with the FROGs Motion, SROGs Motion, and RPDs Motion are GRANTED. Monetary sanctions are AWARDED in favor of Defendant and against Plaintiff and Plaintiff’s former Counsel in the total amount of $2,625.00 for these motions.

II.        Deposition Motion

A.      Legal Standard

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(Code Civ. Proc., § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(Code Civ. Proc., § 2025.280, subd. (a).)¿¿¿ 

¿¿ 

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(Code Civ. Proc., § 2025.450, subd. (a).)¿ 

The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿(Code Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).) “Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue,” including by rescheduling. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124.)¿ 

“If a motion under subdivision (a) [of Code of Civil Procedure section 2025.450] is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿(Code Civ. Proc., § 2025.450, subd. (g)(1).) 

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.420, subd. (h).) 

¿ 

B.      Discussion

On March 29, 2023, Defendant served notice of deposition on Plaintiff regarding a deposition of Plaintiff’s most qualified, setting a deposition date of April 13, 2023 and requesting production of documents. (Deposition Motion, p. 2:5–6; Decl. Sahae, Exh. A.)

On April 13, 2023, Defendant filed her Deposition Motion.

There is no evidence that the deposition has already occurred, nor has it been so argued.

The Court GRANTS the Deposition Motion.

Plaintiff’s person most qualified shall be made available for deposition within 14 days of the issuance of this Order.

        Given the brief amount of notice prior to the deposition and that Plaintiff’s then-Counsel had surgery on the date of the deposition notice, the circumstances here make the imposition of a monetary sanction unjust.

        The Court DENIES the Request for Sanctions.

C.      Conclusion

Defendant’s Deposition Motion is GRANTED.

Plaintiff’s person most qualified shall be made available for deposition within 14 days of the issuance of this Order.

        The Request for Sanctions associated with the Deposition Motion is DENIED.