Judge Upinder S. Kalra, Case Number: 24STCV29486, Date: 2025-04-17 Tentative Ruling

1. A Protective Order to limit the scope of discovery due to Defendant Ivey’s propounding 108 requests for admission, 108 requests for production, and 108 special interrogatories.

3. An Order allowing Plaintiff to serve Summons and Complaint on Jack H. Karpeles by U.S. Mail.

On November 12, 2024, Plaintiff Wenhong Hu (Plaintiff) filed a Complaint against Defendants Richard C. Ivey and Jack H. Karpeles (Defendants) with causes of action for: (1) Breach of Contract; (2) Fraud; (3) Wrongful Termination; and (4) Intentional Infliction of Emotional Distress.

According to the Complaint, Plaintiff and Defendant Ivey entered an employment contract related to legal work in April 2020 which Defendant Ivey breached. Plaintiff further alleges that Defendants fraudulently induced Plaintiff to enter the employment contract and to perform work for them, that they benefited from her work (to her detriment) without any intention of paying her.

On December 26, 2024, Defendant Ivey filed a demurrer to the Complaint and a Cross-Complaint against Plaintiff for elder financial abuse. Defendant/Cross-Complainant Ivey contends that Plaintiff/Cross-Defendant Hu performed the unauthorized practice of law, solicited, and received $5,300 of Ivey’s pension retirement money and billed him for work.

On January 6, 2025, Plaintiff filed an Objection to Defendant’s Discovery Requests and the instant Motion for Protective Order and a Motion for Service by Mail.[1]

On January 14, 2025, Plaintiff filed the instant Motion for Protective Order and Motion to Strike Cross-Complaint.

On February 27, 2025, Plaintiff filed an opposition to Defendant Ivey’s demurrer.

On April 7, 2025, Defendant Ivey filed an opposition to Plaintiff’s Motion for Protective Order and an opposition to Plaintiff’s Motion to Strike the Cross-Complaint.

Replies were due on or before April 10, 2025. As of April 14, 2025, the court has not received any reply in support of the Motion to Strike and the Motion for Protective Order.

For “good cause” shown, the court may make whatever order justice requires¿to protect¿a party against¿“unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”¿This protective order may include, but is not limited to, one or more of the following directions:¿¿

“The state has two substantial interests in regulating pretrial discovery. The first is to facilitate the search for truth and promote justice. The second is to protect the legitimate privacy interests of the litigants and third parties…The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. [Citation.]’¿(Stadish¿v. Superior Court, (1999) 71 Cal.App.4th 1130, 1145 (Stadish).) A trial court must balance the¿various interests in deciding ‘whether dissemination of the¿documents should be restricted.’¿(Id.¿at p. 1146) Further, even where a motion for a¿protective¿order¿is denied in whole or in part, the trial court may still impose “terms and conditions that are just.”¿(Nativi¿v. Deutsche Bank Nat'l Tr. Co.,¿(2014)¿223 Cal.App.4th 261, 317 (Nativi).)¿¿

A party seeking the protective order bears the burden of proof, a preponderance of the evidence, to establish good cause and cannot use mere conclusions to establish good cause without a factual showing. (Stadish, supra, at p. 1145; Nativi, supra, at p. 318.)¿

The decision as to whether to enter a protective order lies within the sound discretion of the court. (Raymond Handling Concepts Corp. v. Sup. Ct. (1995) 39 Cal.App.4th 584, 588, 591; Meritplan Ins. Co. v. Sup. Ct. (1981) 124 Cal.App.3d 237, 242.) The moving party has the burden of showing good cause for protective order. (Emerson Elec. Co. v Sup. Ct. (1997) 16 Cal.4th 1101, 1110.)

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP §¿437.)¿“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman¿(1998) 63 Cal.App.4th 761, 768.)¿¿

When a party demands the production of documents, the responding party may move for a protective order, which shall be accompanied with a meet and confer declaration. (Cal. Code Civ. Proc. (CCP) § 2031.060(a).)¿

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). ¿The meet and confer requirement also applies to motions to strike. (CCP § 435.5.)¿

Here, Plaintiff filed a meet and confer declaration that indicates she made a good faith effort to meet and confer but was unable to resolve the issues. (Hu Decl. In Support of Motion to Strike.) However, Plaintiff did not include a meet and confer declaration in support of the motion for protective order. What is more, this meet and confer declaration does not sufficiently provide information to the court as to when the meet and confer occurred, by what means, and what was discussed. Accordingly, the meet and confer requirement is not met.

“A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender.” (CCP 415.30(a).)

Plaintiff contends a protective order is necessary because Defendant Ivey propounded 108 requests for admission, 108 requests for production, and 108 special interrogatories that are duplicative, repetitive, burdensome, and harassing. Defendant Ivey argues that Plaintiff failed to satisfy her burden because she did not identify what the objectionable discovery was or include it as exhibits, failed to meet and confer, and that the motion is otherwise improper.

After reviewing the motion, opposition, and all papers submitted with this motion, the court agrees with Defendant that it is improper. Notably, the discovery at issue was not included at all by either party. The court is not prepared to blindly rule on a discovery dispute.

Accordingly, the court DENIES Plaintiff’s motion for protective order without prejudice.

Plaintiff/Cross-Defendant contends that the court should strike the Cross-Complaint because the claims for financial abuse and unauthorized practice of law are irrelevant, improper, and unsupported by facts and that the punitive damages claim is legally deficient.[2] Defendant/Cross-Complainant argues the motion to strike improperly challenges the truth of the alleged facts.[3]

Here, the court agrees with Defendant/Cross-Complainant. Plaintiff/Cross-Defendant’s motion to strike is improper, in part, because she challenges the truth of the Cross-Complaint’s allegations. (See, e.g., Mot. 7:11-14.) Since that is not on the face of the Cross-Complaint, a motion to strike does is inappropriate.

Cross-Defendant contends that Cross-Complainant failed to sufficiently plead facts supporting punitive damages. Cross-Complainant argues he has.

To obtain punitive damages, a plaintiff must plead sufficient facts in support of punitive damages.¿ (See¿Hilliard v. A.H. Robins Co.¿(1983) 148 Cal.App.3d 374, 391-92.)¿ In addition,¿punitive damages are allowed only where “it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”¿ (Civ. Code, § 3294(a).)¿ Courts have viewed despicable conduct as conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Scott v. Phoenix Schools, Inc., (2009) 175 Cal.App.4th 702, 715.) Further, Civil Code § 3294(c) provides the definition of malice, oppression, and fraud. Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Ibid.) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Ibid.) Fraud is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”¿(Ibid.)

Here, the Court finds the allegations are insufficient to state a claim for punitive damages. The allegations are conclusory and do not meet the specificity requirement.

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018, 1035.) The burden is on Plaintiff to establish that the defect is reasonably capable of cure with leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Here, Cross-Complainant did not request leave to amend. The court is unsure that there is a reasonable possibility that they can cure the defects discussed above but will allow oral argument on this issue.

Accordingly, the court GRANTS Plaintiff/Cross-Defendant’s motion to strike Punitive Damages and DENIES Plaintiff/Cross-Defendant’s motion to strike in all other respects.

Plaintiff requests leave to serve the Summons and Complaint on Defendant Jack Karpeles via certified mail, return receipt requested due to inability to personally serve him despite multiple attempts.

As noted above, service by mail with return receipt requested is allowed per code. (CCP 415.30(a).) The court is unaware of authority requiring leave to do so.

Accordingly, the court DENIES Plaintiff’s motion for leave for service by mail as moot.

2. Motion to Strike is GRANTED as to Punitive Damages and DENIED in all other respects.

[1] The court has not received any opposition to the Motion for Service by Mail.

[2] Plaintiff did not identify which allegations she seeks to strike. It appears, however, that she seeks to strike the entire Cross-Complaint.

[3] Although the court notes that Defendant/Cross-Complainant argued facts, too.