Judge Thomas Falls, Case 21PSCV00443 2022-09-22 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. R at 909-802-1117 before 8:30 the morning of the hearing.

Defendant Shengli Zhang’s Motion to Compel Plaintiff Individual USA Tour Line INC for

Further Responses to Defendant’s First Set Request for Production of Documents and

Request for Monterey Sanctions is DENIED. Monetary Sanctions are Imposed on Defendant

This case relates to an employment contract. Plaintiffs USA Tour Line, Inc. and Yunshe Shi

(collectively, “Plaintiffs”) allege the following against Defendant Shengli Zhang (“Defendant”): On March 4, 2021, Defendant was hired as a forklift driver and part of his contract was to produce evidence of a forklift operating license. On March 6, 2021, Defendant was injured while at work. “Defendant attempted to extort the sum of $30,000 from the plaintiffs in order [to] not make a worker's compensation claim.” When Plaintiffs refused to pay, Defendant published defamatory statements on chineseinla.com, which has “caused the visitors to Plaintiffs site to drop from a 1000 per day.” Plaintiffs allege that they have been damaged in the amount of $500,000.00.

On September 7, 2021, Defendant filed his Answer. That same day, Defendant filed a Cross

In the absence of contrary court order, a civil litigant’s right to discovery is broad. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010; Davies v. Super. Ct. (1984) 36 Cal.3d 291, 301.)

Motions to compel further responses must always be accompanied by a meet-and-confer declaration demonstrating a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Code Civ. Proc., §§ 2016.040; 2030.300, subd. (b); 2031.310, subd. (b)(2); 2033.290, subd. (b). They must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (Cal. Rules of Court, rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (Cal. Rules of Court, rule¿3.1345(c).)

A motion to compel further responses to a demand for inspection or production of documents may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2031.310, subd. (c).)

Here, however, email exchanges between the parties appears to indicate otherwise. Notably, on

June 26, 2022, Defense Counsel sent Plaintiffs’ Counsel an email regarding to the instant

discovery dispute. (Liu Decl., Ex. C.) Thereafter, on June 29, 2022, Plaintiff’s Counsel sent an

email with the name and information of the forklift operator (Bo Wang), but maintained the

objections asserted in the discovery responses. Thereafter, Counsel for both parties continued to

Based on Defendant’s separate statement, the two requests at issue are the following:

Any and all documents that constitute, reflect, or pertain to the employee who operated the

The employee who was operating the forklift has left the company for China and never

returned. Company will provide the name and the last known address of the employee in the

Responding party hereby objects to this request as vague, ambiguous, oppressive,

burdensome and irrelevant or unlikely to lead to admissible evidence. Without waving such

objections this responding party states that this Responding party has made a diligent search

and reasonable inquiry and responds as follows: The information is overbroad, privileged and

Here, the motion to compel further discovery responses is denied for the following two reasons.

First, Defendant’s separate statement fails to comply with California Rules of Court Rule 3.1345 subdivision (c), which governs the contents of a separate statement. In pertinent part, the separate state fails to include-for each discovery request “[a] statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute.” (Cal. Rules of Court Rule 3.1345 subd., (c), subs. (4)) (emphasis added).

For example, assuming that the tax return privilege is not absolute[1] and assuming that the corporation’s tax returns are the most direct evidence to prove the $500,000 in damages, Defendant has not explained the relevance of tax returns from two years prior to the parties’ contract.[2]

Additionally, Request Number 10 (identification and information of forklift driver) fails to meet the basic relevancy threshold. To the extent that the information is relevant because the forklift driver who struck Defendant “is the case’s most important witness,” the court is uncertain how so. (Motion p. 7:20-21.) The crux of Plaintiffs’ allegations—as framed by the complaint—does not pertain to whether Defendant was truly injured on the job. Rather, as Defendant himself articulates, the nature of the allegations is that “Plaintiff USA is suing Defendant Zhang for $500,000 damages because of the announce[ment] Zhang posted on social media when he was seeking [ ] legal help[].” (Motion p. 7:23-24.) Accordingly, from the face of the pleadings, Bo Wang’s identity is not relevant to a breach of contract, fraud, and defamation causes of actions.

Therefore, as the separate statement fails to explain the relevancy of each document, the motion fails.

Second, as for Request Number 10, Defendant has not shown that Plaintiff provided an incomplete or evasive response. Rather, Defendant concedes Plaintiff provided the information (twice) but believes that the driver is someone else, implying that Plaintiff did not provide truthful information. (See also Seropian Decl., Ex. 3 [email dated September 7, 2022 from Defense Counsel to Plaintiff’s Counsel stating “Again, the Driver your client offered is not the one who drove the forklift and hit my client. Please provide the true driver information.”].)[3] First, Defendant failed to provide legal authority to support its contention that it is entitled to further discovery based on such a presumption. Second, it is this court’s duty to resolve the merits of a dispute, not adjudicate the credibility and truthfulness of court filings, which are signed under the penalty of perjury.

Therefore, considering Defendant has already received the requested information, there is no good cause for further production of the same information.

CCP section 2031.310(h) provides for mandatory monetary sanctions “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(h).)

Here, as the relevance of the request of production was not explained and Defendant already has the information of the forklift driver, the court does not find that Defendant acted with substantial justification in bringing forth the motion. Plaintiffs’ Counsel seeks $1,572.50 in sanctions against Defendant and his Counsel [calculated as follows: 3.2 hours reviewing the motion and preparing the opposition, half an hour expected for the hearing at an hourly rate of $425/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 $1,110 (i.e., 3.2 hours for the opposition, thirty minutes for the hearing, at $300/hour.) Sanctions are payable within 20 days of the date of the hearing.

Based on the foregoing, the motion is DENIED and monetary sanctions are imposed on

Defendant and his counsel in the amount of $1,110. Sanctions are payable within 20 days of this

[1] See Strawn v. Morris, Polich & Purdy, LLP (2019) 30 Cal.App.5th 1087, 1098-1099 [“The tax return privilege is not absolute and will not be upheld when (1) the circumstances indicate an intentional waiver of the privilege; (2) the gravamen of the lawsuit is inconsistent with the privilege; or (3) a public policy greater than that of the confidentiality of tax returns is involved.”].)

[2] The Civil Procedure Code provides that unless otherwise limited by order of the court in accordance with the Civil Discovery Act, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Thus, information is discoverable if it is unprivileged and is either relevant to the subject matter of the action or reasonably calculated to reveal admissible evidence. (Los Angeles Unified School Dist. v. Trustees of Southern California IBEW-NECA Pension Plan (2010) 187 Cal.App.4th 621, 627-628.)

[3] Defendant bases its presumption that Plaintiffs provided the incorrect information because the “true” forklift driver is shorter and leaner than Defendant, but Bo Wang’s driver’s license is for someone who is six feet with a round face. (Reply p. 3.)