Judge: Peter A. Hernandez, Case: 23PSCV00433, Date: 2023-11-01 Tentative Ruling
Case Number: 23PSCV00433 Hearing Date: November 1, 2023 Dept: K
Plaintiff Xin He’s Motion to Compel Defendant Zhong Fang LLC to Provide
Responses to Form & Special Interrogatories, Requests for Production,
Requests for Admission and to Deem Plaintiff’s Requests for Admission Deemed
Admitted is GRANTED. Fang is to provide
verified responses, without objections, to Plaintiff’s Form and Special
Interrogatories and Requests for Production, Sets No. One, within 20 days from
the date of the notice of ruling. Pursuant to Code of Civil Procedure §
2033.280, subdivision (b), the court orders the truth of all matters specified
in Plaintiff’s Requests for Admissions, Set No. One, deemed admitted. Sanctions
are awarded in the reduced amount of $1,115.00
and are payable within 30 days from the date of the notice of ruling.
Plaintiff is ordered to pay an additional $180.00 in filing fees at or before the time of the hearing.
Background
Plaintiff Xie He (“Plaintiff”) alleges as follows:
On May 25, 2016,
Plaintiff and California Investment Regional Center, LLC (“CIRC”), American
Investment Immigration Fund (“AIIF”), 9920 Valley Blvd., LP (“Project Company”)
an Zhong Fang aka Johnson Fang (“Fang”) entered into an Immigration Agreement
for EB-5 Investor (“Immigration Agreement"), wherein CIRC, AIIF, Project
Company, and Fang agreed to help Plaintiff apply for a permanent resident card
after Plaintiff invested $500,000 in Project Company. That same day, Plaintiff,
CIRC and AIIF entered into the Supervision and Management for EB-5 Investment
Fund (“the Supervision Agreement for Fund"), wherein it was agreed that
CIRC or AIIF was the escrow agent for $500,500 deposited by Plaintiff and that
these monies would not be released into Project Company unless Plaintiff
received the receipt number from the United States Citizenship and Immigration
Service (“USCIS") for her initial immigration application.
On June 30, 2016,
Plaintiff wired $500,500 to AIIF and wired an additional $66,100 in
miscellaneous fees to CIRC, AIIF, Project Company and Fang. In or about
October, 2016, one of Fang’s employees told Plaintiff that Fang helped
Plaintiff file the immigration application with the USCIS, and Fang sent a
receipt number to Plaintiff to prove that application. From October 2016, CIRC,
AIIF, Project Company, and Fang always advised that Plaintiff’s immigration
application was in normal progress awaiting review and approval.
On June 10, 2021,
after Plaintiff demanded a refund of $566,600, CIRC and Mr. Fang promised to
refund $500,000 to Plaintiff. On or before July 28, 2022, Plaintiff received
$20,000 from Fang. On December 6, 2022, Plaintiff retrieved her immigration
case file from the USCIS and found that her $500,500 had been misdirected to
Hawaii City Plaza LP (“Hawaii LP”) without her authorization and that her
signature on the application form had been forged. Further, Zhou Law Inc. aka
Law Offices of James Zhou (“Firm”), Jianmin Zhou (“Zhou”), and Ke Ye claimed
that they represented Plaintiff when filing the immigration application on
Plaintiff's behalf even though Plaintiff never entered into an agreement with
them.
On February 14, 2023, Plaintiff filed a complaint, asserting causes of action against CIRC, Project Company, Hawaii LP, Fang, Firm, Zhou, Ye and Does 1-20 for:
1.
Breach of Contract
2.
Fraud
3.
Conversion
4.
Breach of Fiduciary Duty
5.
Legal Malpractice
6.
Common Count—Money Had and Received
The Final Status Conference is set for May 3, 2024. Trial is set for May 17, 2024.
Legal Standard
Requests for Admissions
A response to requests for admission is due 30 days after service. (Code Civ. Proc., §
2033.250, subd. (a).) “If a party to whom requests for
admission are directed fails to serve a
timely response, . . .[t]he requesting party may move for
an order that the genuineness of any
documents and the truth of any matters specified in the
requests be deemed admitted. . .” (Code
Civ. Proc., § 2033.280, subd. (b).) “The court
shall make this order, unless it finds that the party
to whom the
requests for admission have been directed has served, before the hearing on the
motion, a
proposed response to the requests for admission that is in substantial
compliance with
Section 2033.220. . .” (Code Civ. Proc., § 2033.280, subd. (c).)
“It is mandatory
that the court impose a monetary sanction . . . on the party or attorney, or
both,
whose failure to
serve a timely response to requests for admission
necessitated this motion.”
(Code Civ. Proc., § 2033.280, subd. (c).)
Interrogatories
A response to interrogatories is due 30 days after service. (Code Civ. Proc., § 2030.260, subd.
(a).) “If a party to whom
interrogatories are directed fails to serve a timely response, . . . [t]he
party propounding the interrogatories
may move for an order compelling response to the
interrogatories.” (Code Civ. Proc., §
2030.290, subd. (b).)
“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a 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., § 2030.290, subd. (c).)
Requests for Production
A response to a request for production of documents is due 30 days after service. (Code Civ.
Proc., § 2031.260, subd. (a).) “If a
party to whom a demand for inspection, copying, testing, or
sampling is directed fails to serve a
timely response to it, . . . [t]he party making the demand may
move for an order compelling response
to the demand.” (Code Civ. Proc., § 2031.300, subd. (b).)
“[T]he court shall impose a monetary sanction . . . against any party, person, or attorney who
unsuccessfully makes or opposes a
motion to compel a response to a demand for inspection,
copying, testing, or sampling, 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., § 2031.300, subd.
(c).)
Discussion
Plaintiff moves the court for an order requiring Fang to serve responses, without objections, to Plaintiff’s Form and Special Interrogatories, Requests for Production and Requests for Admissions, Sets No. One (collectively, “subject discovery”). Plaintiff also requests an order determining that Plaintiff’s Requests for Admissions, Set No. One (“RFAs”) are deemed admitted by Fang. Plaintiff requests sanctions against Fang and his counsel, Jing Wang (“Wang”), in the amount of $1,972.50.
Filing Fees
At the outset, the court notes that Plaintiff’s motion improperly combines four separate motions into one. Plaintiff has only paid one filing fee and reserved a hearing for one motion This is improper. Plaintiff is ordered to pay an additional $180.00 in filing fees at or before the time of the hearing (i.e., $60.00 filing fee/motion, multiplied by 4, minus 1 filing fee already paid). Counsel for Plaintiff is admonished to adhere to court filing and reservation guidelines in any future filings and to file (and pay for) separate motions for each discovery vehicle at issue in the future. Failure to do so may result in the motion(s) being placed off calendar, in the court’s discretion.
Merits
Again, Plaintiff seeks sanctions against Fang and Wang in the amount of $1,972.50 [calculated as follows: 2.5 hours preparing motion, plus 1 hour attending hearing, plus 1 hour preparing a request for an Informal Discovery Conference and attending same at $425.00/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 $1,115.00 (i.e., 2.5 hour at $350.00/hour, plus $240.00 filing fees). Sanctions are imposed against Fang and Wang and are payable within 30 days from the date of the notice of ruling.