Judge: Peter A. Hernandez, Case: 19STCV05460, Date: 2022-08-23 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.

Case Number: 19STCV05460    Hearing Date: August 23, 2022    Dept: O

Defendant Wave Plastic Surgery Center R.H., Inc.’s Motion to Compel Plaintiff Ceci Qiao

Lee’s Further Responses to Defendant’s Request for Production of Documents, Set Five is GRANTED. Plaintiff is ordered to provide a further, Code-compliant response to No. 68 within 20 days from the date of the hearing. Plaintiff is also ordered to provide all responsive documents to Nos. 58-67, 69 and 70 within 20 days from the date of service of the “Notice of Ruling.” Sanctions are imposed against Plaintiff only in the reduced amount of $460.00 and are payable within 30 days from the date of service of the “Notice of Ruling.”

Background[1]  

Plaintiff Ceci Qiao Lee (“Plaintiff”) alleges as follows:

On February 20, 2018, Plaintiff went to Wave Plastic Surgery Center R.H., Inc. (“Wave Plastic Surgery”) for an eyeliner tattoo procedure. After the procedure, Plaintiff’s technician negligently dripped some form of “solution” into Plaintiff’s right eye, causing severe burns. Plaintiff thereafter went to the emergency room, where she was diagnosed with a corneal abrasion. Plaintiff requires a corneal transplant.

On February 15, 2019, Plaintiff filed a complaint, asserting causes of action against Wave Plastic Surgery and Does 1-50 for:

1.                  Negligence

2.                  Negligent Training/Hiring

On May 16, 2019, Plaintiff filed an Amendment to Complaint, wherein Metropolitan Slim & Beauty Group, Inc. (“Metropolitan”) was named in lieu of Doe 1.

On October 22, 2019, this case was transferred from Department 5 of the Personal Injury Court to this instant department.

The Final Status Conference is set for September 6, 2022. Trial is set for September 20, 2022.

Legal Standard

Motion to Compel Furthers

“[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.) 

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 demanding party and the responding party have agreed in writing . . .” (Code Civ. Proc., § 2030.310, subd. (c).)

“[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).)

Motion to Compel Compliance

“If a party filing a response to a demand for inspection, copying, testing, or sampling. . . thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320, subd. (a).)

There is no meet and confer requirement.

“[T]he court shall impose a monetary sanction. . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with 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., § 2031.320, subd. (b).)

Discussion

Wave Plastic Surgery moves for an order compelling Plaintiff to provide further responses to Wave Plastic Surgery’s Request for Production of Documents, Set Five (i.e., Nos. 58-70). Wave Plastic Surgery seeks sanctions against Plaintiff and her counsel of record, jointly and severally, in the amount of $1,460.00.

On January 6, 2022, Wave Plastic Surgery served Plaintiff with the subject discovery. (Vazquez Decl., ¶ 6, Exh. C.) On February 7, 2022, two days after the initial responses were due, Plaintiff asked for an extension to February 21, 2022, which was granted. (Id., ¶ 5, Exh. D.) On February 22, 2022, Plaintiff requested and received another extension, until March 1, 2022. (Id., ¶ 6, Exh. E.) No responses were provided on March 1, 2022. (Id., ¶ 6.) On March 16, 2022, counsel for Wave Plastic Surgery sent a meet and confer letter to Plaintiff’s counsel, requesting therein that Plaintiff produce responses, without objections, by March 28, 2022. (Id., ¶ 7, Exh. F.) On March 28, 2022, Plaintiff served unverified responses. (Id., ¶ 8, Exh. G.) On April 12, 2022, Plaintiff served verifications. (Id., ¶ 9, Exh. H.) On May 9, 2022, counsel for Wave Plastic Surgery sent an email to Plaintiff’s counsel, requesting responsive documents by May 12, 2022 or, alternatively, by May 26, 2022 in exchange for a reciprocal extension on any motion. (Id., ¶ 11, Exh. I.) Plaintiff’s counsel did not respond to this communication; instead, Plaintiff’s counsel’s firm advised on May 10, 2022 that they were withdrawing as counsel. (Id., ¶ 12, Exh. J.) On May 11, 2022, counsel for Wave Plastic Surgery emailed Plaintiff’s counsel, advising that the motion filing deadline was May 27, 2022 and inquiring as to whether Plaintiff’s counsel would be willing to meet and confer further or would provide an extension on filing the motion until after the motion to withdraw was heard. (Id., ¶ 13, Exh. K.) No response was provided. (Id., ¶ 13.) This motion followed, on May 27, 2022.

Plaintiff provided the following identical response to Nos. 58-67, 69 and 70: “Plaintiff will produce documents responsive to this request.” Plaintiff did not interpose any objections to these requests. Wave Plastic Surgery represents that Plaintiff only produced various Citibank bank statements from 2017, despite testifying during her November 17, 2021 deposition about various documentation that would evidence her earnings since 2015, such as Venmo account records under her phone number, WeChat account and history connected with her phone number, daily records and information on the salon’s computer, 1099’s from the salon, E.D.D. records, bank account and deposits from her bank account in China, copies of checks that were deposited to her Citibank bank account, “books” of monthly wages and pictures of nails for all customers. (Id., ¶ 15, Exh. M.) The instant motion, while styled as a motion to compel further responses, is actually a motion to compel compliance as to the aforesaid requests. Plaintiff must comply with her agreement to provide all responsive documents to these requests which, based on her deposition testimony, she failed to do. The motion is granted in this regard.

With respect to No. 68 (i.e., requesting “[a]ny and all DOCUMENTS evidencing YOUR investment into 1517 Nails”), Plaintiff provided the following response: “Plaintiff is unable to comply with this request because she does not have any responsive documents in her possession, custody or control. Any documents that may comply with this request is [sic] within the possession, custody, or control of her former business partner at 1517 Nails.”

Plaintiff’s response fails to affirm that she made a “diligent search and a reasonable inquiry . . . in an effort to comply with th[e] demand,” as per Code of Civil Procedure § 2031.230. Plaintiff’s response also fails to specify the reason she was not in possession, custody or control of the responsive documents and does not set forth the name and address of her former business partner, as per Code of Civil Procedure § 2031.230.

The motion is granted. Plaintiff is ordered to provide a further, Code-compliant response to No. 68 within 20 days from the date of the hearing. Plaintiff is also ordered to provide all responsive documents to Nos. 58-67, 69 and 70 within 20 days from the date of service of the “Notice of Ruling.”

Sanctions

Wave Plastic Surgery seeks sanctions against Plaintiff and her (now former) counsel in the amount of $1,460.00 [calculated as follows: 6 hours preparing motion, plus 1 hour attending hearing at $200.00/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 $460.00 (i.e., 2 hours at $200.00/hour, plus $60.00 filing fee). Sanctions are imposed against Plaintiff only and are payable within 30 days from the date of service of the “Notice of Ruling.”