Judge Peter A. Hernandez, Case 18PSCV00137 2022-09-27 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

1. Defendants Ling Ren’s and Lingyun Bian’s Motion to Compel Further Responses to Special Interrogatories (Set One) is DENIED. Sanctions are awarded to Plaintiff in the reduced amount of $350.00 and are payable within 30 days from the date of the hearing.

2. Defendants Ling Ren’s and Lingyun Bian’s Motion to Compel Further Responses to Requests for Admissions (Set One) is DENIED. Sanctions are awarded to Plaintiff in the reduced amount of $350.00 and are payable within 30 days from the date of the hearing.

3. Plaintiff N.D.U. Capital, LLC’s Motion to Compel Further Responses to Request for Production of Documents is GRANTED in full. L. Ren is to provide further, substantive responses within 20 days from the date of the hearing. Sanctions are awarded to Plaintiff in the amount of $760.00 and are payable within 30 days from the date of the hearing.

4. Plaintiff N.D.U. Capital, LLC’s Motion to Compel Further Responses to Special Interrogatories is GRANTED in full. L. Ren is to provide further, substantive responses within 20 days from the date of the hearing. Sanctions are awarded to Plaintiff in the amount of $760.00 and are payable within 30 days from the date of the hearing.

5. The hearing on Defendants Ling Ren’s and Lingyun Bian’s Motion for Summary Judgment is continued to November 30, 2022 at 10:00 a.m. [see below].

YYP Entertainment (“YYP”) is in the entertainment business arranging and promoting concert events; Yiping Ye (“Ye”) is the principal of YYP. On January 6, 2018, Plaintiff and YYP entered into four identical written Investment Agreements (“Agreement”), wherein Plaintiff agreed to invest $50,000.00 in YYP’s project under each Agreement for a total of $200,000.00. YYP, in turn, agreed to repay Plaintiff the principal amount, plus a $5,000.00 profit, by July 6, 2018. YYP was unable to make payment on July 6, 2018, so on July 17, 2018, Plaintiff and YYP entered into a Supplemental Agreement in which YYP agreed to pay $5,000.00 by July 20, 2018 and $174,155.66 by August 10, 2018. On July 17, 2018, Ye executed a Personal Guarantee. YYP and Ye failed to pay Plaintiff by August 10, 2018. Starting from December 2017 and throughout 2018, Ye transferred various assets to his wife, Ling Ren aka Michelle Ren (“L. Ren”), to avoid his payment obligations to Plaintiff.

On November 30, 2018, Plaintiff filed a complaint, asserting causes of action against YYP, Ye, L. Ren and Does 1-20 for:

On June 1, 2021, Plaintiff filed three “Amendment[s] to Complaint,” wherein Yanhu Ren was named in lieu of Doe 1, Xiufen Liu was named in lieu of Doe 2 and Lingyun Bian (“Bian”) was named in lieu of Doe 3.

The Final Status Conference is set for August 11, 2023. Trial is set for August 25, 2023.

“[T]he propounding party may move for an order compelling a further response if the propounding party deems that . . . (1) An answer to a particular interrogatory is evasive or incomplete[,] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[, and/or] (3) An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2030.300, subd. (b)(1).) “In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2030.300, subd. (b)(2).)

Notice of the motion must be provided “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing. . .” (Code Civ. Proc., § 2030.300, subd. (c).) The responding party has the burden of justifying the objections to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

“The court shall impose a monetary sanction. . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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., § 2030.300, subd. (d).)

L. Ren[1] moves the court for an order compelling Plaintiff to provide verified further responses, without objections, to her Special Interrogatories, Set No. One (i.e., Nos. 11 and 12). L. Ren also seeks sanctions against Plaintiff and its counsel of record, jointly and severally, in the amount of $2,000.00.

On January 21, 2022, the subject discovery was served on Plaintiff. (Atabek Decl., ¶ 2, Exh. 1.) On February 21, 2022, Plaintiff’s counsel Tony Lu (“Lu”) requested, and Atabek granted, a two-week extension to respond. (Id., ¶ 3, Exh. 2.) On March 5, 2022, Atabek’s office received Plaintiff’s responses. (Id., ¶ 4, Exh. 3.) On March 23, 2022, Atabek and his associate Peter Maissian (“Maissian”) drafted a meet and confer letter but inadvertently failed to transmit it. (Id., ¶ 5.) On April 9, 2022, Atabek had Maissian email Lu and ask for an extension on L. Ren’s deadline to file the instant motion. (Id., ¶ 6, Exh. 4.) At that time, Atabek believed that he had transmitted the meet and confer letter but that Lu had simply failed to respond. (Id., ¶ 6.) Lu declined the extension, stating that “the time [was] up” and that he “d[idn’t] even know what deficient responses have been provided.” (Id., ¶ 7, Exh. 5.) Lu had Maissian respond by transmitting the meet and confer letter. (Id., ¶ 8, Exh. 6.) Atabek immediately followed up with his own email, re-asking for an extension on the motion filing deadline. (Id., ¶ 9, Exh. 7.) Lu agreed to review the letter and respond the next morning regarding whether he would provide supplemental responses. (Id., ¶ 10, Exh. 8.) Lu, in fact, agreed the next morning to supplement Plaintiff’s responses, but failed to identify which ones he was supplementing until later that afternoon, when he stated he would supplement No. 8. (Id., ¶¶ 11-13, Exhs. 9-11.) Lu also refused an extension on the motion filing deadline. (Id., ¶ 12.) This motion followed later that day, on April 20, 2022.

Plaintiff complains that the instant motion was filed without a sufficient meet and confer; however, Atabek has explained that his failure to transmit a meet and confer letter to Plaintiff’s counsel at an earlier date was inadvertent and that he was later unsuccessful in his attempt to obtain an extension of the motion filing date from Lu. The court declines to deny the motion on any perceived deficiencies with the meet and confer process.

Again, the interrogatories in issue are Nos. 11 and 12. No. 11 asks Plaintiff to identify each and every person to/in whom it has lent/invested money. No. 12 asks Plaintiff to identify the interest rate/rate of return for the loan/investment for each loan/debt identified in No. 11.

Plaintiff objected to both of the foregoing interrogatories on the basis that they were overbroad as to geography, scope and time, irrelevant, invasive of Plaintiff’s and potentially third parties’ financial privacy rights and compound.

The court agrees that the subject interrogatories are overbroad. Further, the court agrees that the interrogatories seek information that invades the privacy rights of third persons; if (as to No. 11) L. Ren truly needs to have information to determine whether Plaintiff was required to register as a foreign company (as L. Ren represents), L. Ren could obtain this information in a less intrusive manner without having to know the identity of each person that Plaintiff might have lent money to or invested money in, such as by asking the number of such loans/investments within the State of California. Further, whether Plaintiff “has engaged in a pattern and practice of usurious loans, or if its other loans were within allowable interest rate limits” is irrelevant. Similarly, as to No. 12, it is irrelevant how much rate of return or interest Plaintiff might have charged others.

The court declines L. Ren’s request for sanctions, based on the outcome of the motion. Plaintiff seeks sanctions against L. Ren and her counsel of record, Molnar Atabek, LLP, jointly and severally, in the amount of $1,687.00 [calculated as follows: 3.5 hours preparing opposition, plus 1 hour reviewing reply and preparing for/attending hearing at $375.00/hour].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $350.00 (i.e., 1 hour at $350.00/hour). Sanctions are payable within 30 days from the date of the hearing.

“[T]he party requesting admissions may move for an order compelling a further response if that party deems that . . . (1) An answer to a particular request is evasive or incomplete [and/or] (2) An objection to a particular request is without merit or too general.” (Code Civ. Proc., § 2033.290, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2033.290, subd. (b)(1).) “In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2033.290, subd. (b)(2).)

Notice of the motion must be provided “within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing . . .” (Code Civ. Proc., § 2030.300, subd. (c).) The responding party has the burden of justifying the objections to the requests. (Coy, supra, 58 Cal.2d at 220-221.)

“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, 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., § 2033.290, subd. (d).)

L. Ren[2] moves the court for an order compelling Plaintiff to provide verified further responses, without objections, to her Requests for Admissions, Set No. One (i.e., Nos. 18, 21-24 and 31). L. Ren also seeks sanctions against Plaintiff and its counsel of record, jointly and severally, in the amount of $2,000.00.

Again, the requests in issue are Nos. 18, 21-24 and 31. Plaintiff provided the following identical response to each of these requests: “A diligent search and inquiry for an answer has been made. Despite reasonable search and inquiry, Responding Party currently does not have sufficient information to either admit or deny this Request.”

The court determines that Plaintiff’s response complies with Code of Civil Procedure § 2033.220, subdivisions (b)(3) [i.e., “Each answer shall: . . . Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge”] and (c) [i.e., “If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.”]

3. Plaintiff’s Motion to Compel Furthers Re: Request for Production of Documents

“[T]he demanding party may move for an order compelling further response to the demand if the demanding party deems that. . . (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive [and/or] (3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) “In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” (Code Civ. Proc., § 2031.310, subd. (b)(3).)

A motion to compel further responses to a demand for inspection or production of documents must set forth specific facts showing “good cause” justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).) If the moving party has shown good cause for the production of documents, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4^th 92, 98.)

“[T]he court shall impose a monetary sanction. . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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., § 2031.310, subd. (h).)

Plaintiff moves the court for an order compelling L. Ren to provide further responses to Plaintiff’s Request for Production of Documents, Set No. Three (i.e., Nos. 26-42 and 49-51) within 20 days of the hearing. Plaintiff also seeks sanctions in the amount of $2,122.50.

Plaintiff’s counsel Tony Lu (“Lu”) represents as follows: On February 4, 2022, the subject discovery was served on Plaintiff. (Lu Decl., ¶ 13, Exh. 1.) On March 24, 2022, L. Ren served her responses. (Id., ¶ 15, Exh. 2.) On April 15, 2022, Lu sent a meet and confer letter to L. Ren’s counsel and requested further responses by April 22, 2022. (Id., ¶ 16, Exh. 3.) Lu has not received any response to this letter, nor have further responses been provided. (Id., ¶ 17.) This motion followed on April 27, 2022.

L. Ren complains that the instant motion was filed without a sufficient meet and confer; however, Lu has attached his April 15, 2022 meet and confer letter as Exhibit 3 to his declaration. Counsel for L. Ren concedes that he did not respond to this communication, but suggests that opposing counsel should have followed up with him. The court declines to deny the motion on any perceived deficiencies with the meet and confer process.

Requests Nos. 26-28 seek L. Ren’s monthly bank account statements for the years 2017, 2018 and 2019, respectively. No. 29 seeks writings showing the source from which the $452,403.58 Additional Deposit for the purchase of the Yorba Linda Property came. Nos. 30-33 seek writings that show the amount of mortgage, property tax, insurance and utility payments, respectively, for the Yorba Linda Property was paid from any of L. Ren’s bank accounts in 2018; Nos. 34-37 seek this same information for 2019 and Nos. 38-41 seek this same information for 2020. No. 42 seeks writings showing the amount if money L. Ren’s father has ever contributed toward the mortgage payments for the Yorba Linda Property from January 2019-present.

No. 49 seeks writings that reflect the date and time on which Adam Zhao (“Zhao”) went to the Yorba Linda Property. No. 50 seeks a copy of any video and/or audio recording showing that Zhou has been to the Yorba Linda Property. No. 51 seeks writings reflecting each business debt or expense L. Ren has paid on behalf of YYP since January 1, 2017.

L. Ren provided objection-only responses to Nos. 26-28, 31, 36, 39. More specifically, L. Ren contends that the requests at issue are violative of her financial privacy rights.

Personal financial information comes within the zone of privacy protected by the California Constitution, Article 1, Section 1. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 655-656; Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 480-481 [finding a right to privacy in confidential customer information “whatever form it takes, whether that form be tax returns, checks, statements, or other account information”].) The state's privacy provision “extends to one's confidential financial affairs as well as to the details of one's personal life.” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 368.)

“In Hill, [the California Supreme Court] established a framework for evaluating potential invasions of privacy.” (Williams v. Superior Court (2017) 3 Cal.5^th 531, 552, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4^th 1.) “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Id. at 552.)

Plaintiff contends in this case that Ye transferred at least two real properties (i.e., the property located at 1943 Arcdale Ave. in Rowland Heights [“Rowland Heights Property”] and the property located at 20461 Via Trovador in Yorba Linda [the “Yorba Linda Property”]) to L. Ren in violation of the Uniform Fraudulent Transfer Act. (Lu Decl., ¶¶ 4-8.) Lu represents that L. Ren has claimed that she borrowed money from her father to buy the Rowland Heights Property in 2011 and that, with respect to the Yorba Linda Property, that it is actually her parents’ house and that she is merely holding title for them until they receive green cards, and that her parents gave her the down payment and also money for the mortgage, taxes, insurance and improvements for the Yorba Linda Property. (Id., ¶¶ 11 and 12.)

The court finds that L. Ren does not have an objectively reasonably expectation of privacy in the given circumstances. Further responses, then, are warranted.

L. Ren’s substantive responses to Nos. 29, 30, 32-35, 37, 38, 40 and 41 are likewise deficient, in that they fail to comply with Code of Civil Procedure § 2031.230, which provides that “[a] representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

The motion is granted. L. Ren is to provide further, substantive responses within 20 days from the date of the hearing.

Plaintiff seek sanctions against L. Ren and her attorneys of record in the amount of $2,122.50 [calculated as follows: 4 hours preparing motion, plus 1 hour reviewing opposition and preparing reply, plus 0.5 hours attending hearing at $375.00/hour, plus $60.00 filing fee].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $760.00 (i.e., 2 hours at $350.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days from the date of the hearing.

Plaintiff moves the court for an order compelling L. Ren to provide further responses to Plaintiff’s Special Interrogatories, Set No. Three (i.e., Nos. 36-38 and 40-43) within 20 days of the hearing. Plaintiff also seeks sanctions in the amount of $1,935.00.

Special Interrogatories Nos. 36-38 request L. Ren to identify each bank account she held individually or jointly with another person in 2017, 2018 and 2019, respectively. Nos. 40-43 request L. Ren to identify how much mortgage payments, property tax payments, insurance payments and utility payments, respectively, for the Yorba Linda Property were paid from any of L. Ren’s bank accounts in 2018.

L. Ren provided objection-only responses to Nos. 36-38/.More specifically, L. Ren contends that the requests at issue are violative of her financial privacy rights. The court, however, finds that L. Ren does not have an objectively reasonably expectation of privacy in the given circumstances, as set forth in the analysis on Motion #3. Further responses, then, are warranted.

L. Ren’s substantive responses to Nos. 40-43 are likewise deficient. L. Ren responds, “[o]nly those payments prior to December 24, 2018, which payments were made using funds loaned to Responding Party from her father.” The foregoing response is non-responsive as the interrogatories are asking for amounts.

The motion is granted. L. Ren is to provide further, substantive responses within 20 days from the date of the hearing.

Plaintiff seek sanctions against L. Ren and her attorneys of record in the amount of $1,935.00 [calculated as follows: 3.5 hours preparing motion, plus 1 hour reviewing opposition and preparing reply, plus 0.5 hours attending hearing at $375.00/hour, plus $60.00 filing fee].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $760.00 (i.e., 2 hours at $350.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days from the date of the hearing.

L. Ren and Bian move the court for an order granting summary judgment or, in the alternative, summary adjudication in their favor and against Plaintiff.

At the outset, the court notes that Plaintiff has requested a continuance. Code of Civil Procedure § 437c, subdivision (h) provides that “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.”

“To mitigate summary judgment's harshness, the statute's drafters included a provision making continuances—which are normally a matter within the broad discretion of trial courts—virtually mandated upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” (Bahl v. Bank of America (2001) 89 Cal.App.4^th 389, 395 [internal quotations and citation omitted; emphasis added].)

Plaintiff’s counsel Tony Lu (“Lu”) represents that he needs to complete L. Ren’s deposition, have Plaintiff’s Motions to Compel Furthers (identified above) heard and determined, subpoena Ye’s and YYP’s bank accounts, conduct “further investigation” into the Pearl Beta Lawsuit and serve L. Ren’s parents in China. (Lu Decl., ¶¶ 26-29).

The hearing is CONTINUED to November 30, 2022 at 10:00 a.m. The court will allow supplemental briefing, limited to any discovery obtained above. Plaintiff’s supplemental brief must be filed and served no later than November 2, 2022. L. Ren’s and Bian’s response to Plaintiff’s supplemental briefing must be filed and served no later than November 16, 2022.

[1] The motion was filed by both L. Ren and Bian; however, the subject discovery was propounded by L. Ren only.

[2] Again, the motion was filed by both L. Ren and Bian; however, the subject discovery was propounded by L. Ren only.