Judge Wesley L. Hsu, Case 19PSCV00285 2023-04-11 Tentative Ruling

Plaintiff Xi Wen Fang (“Fang”) alleges as follows: Plaintiff worked as sales agent of Andorra International, Inc. (“Andorra”), a multilevel marketing health supplement company. In October 2016, Plaintiff purchased into the Andorra compensation plan. Andorra organized its sales agents into a network of “up-lines” and “down-lines,” whereby agents were compensated based not only on their own sales of Andorra products, but on the sales of people recruited by them, called “down-lines,” and on sales of people recruited by the “down-lines” as well. On or about April 15, 2017, Plaintiff’s “down-lines” were transferred to other agents, which caused Plaintiff to lose compensation. Andorra’s business and goodwill was subsequently shifted to Wayal Health Sciences USA, Inc. (“Wayal”).

On February 26, 2021, Wayal filed a cross-complaint, asserting causes of action against Fang and Roes 51-100 for:

On February 26, 2021, Andorra filed a cross-complaint, asserting causes of action against Fang and Roes 1-50 for:

On March 10, 2021, Fang filed a Third Amended Complaint, asserting causes of action against Andorra, Wayal, Chun Yong Liu aka Ted Liu (“Liu”), Tao Pang aka Tina Pang (“Pang”) and Does 1-100 for:

The Final Status Conference is set for August 29, 2023. Trial is set for September 12, 2023.

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

“A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance…” (Code Civ. Proc., § 2025.450, subd. (b).)

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court 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., § 2025.450, subd. (g)(1).)

Also, “any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: . . . (5) To compel or to quash the production of documents or tangible things at a deposition.” (Cal. Rules Court rule 3.1345, subd. (a)(5).)

Fang moves the court for an order compelling the depositions of, and production of documents by, Liu and Pang, both individually and as Person Most Knowledgeable (“PMK”) of Andorra and Wayal, respectively. Fang also seeks sanctions in the amount of $1,920.00 against Andorra, Wayal, Liu, Pang and their counsel.

At the outset, Plaintiff’s separate statement reflects non-compliance with California Rules of Court rule 3.1345; more specifically, subdivision (c)(2) provides that “[t]he separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following:. . . (2) The text of each response, answer, or objection, and any further responses or answers.” Despite filing 320 pages in the moving papers alone, Plaintiff’s separate statement fails to include any of the Defendants’ respective responses. The court considered denying this motion on this basis alone.

The court has reviewed the declarations of Steven P. Scandura (“Scandura”) and Amy C. Johnsgard. The court does not believe that a substantive meet and confer was conducted with respect to the 367 categories of documents demanded in the August 10, 2022 notices or to the 1,328 categories and 26 identified topics demanded in the February 15, 2023 notices. Scandura represents that the categories of documents demanded in the February 15, 2013 notices are the same as those demanded in the August 10, 2022, but broken out into narrower categories (Scandura Decl., ¶ 10). The court will continue the hearing out for to May 30, 2023, at 9:30 a.m.

The court instructs counsel—both counsel—to engage in meaningful meet and confer efforts either in person or through online meeting software (such as Zoom or Teams). Counsel are further instructed to file a joint status report no later than nine court days prior to the continued hearing date, advising the court as to what meet and confer efforts were made, what issues counsel were able to resolve and what issues remain outstanding. The court will not sift through the discovery on its own in an attempt to discern the various areas of contention. The issues for the court to decide should be succinctly framed. It should be obvious that the depositions of the defendants sought by this motion are appropriate given the nature and stage of the case;[1] less obvious is whether all, some, or none of the document requests are also appropriate. The court requires specified contentions and responses to rule. Why is each request unduly burdensome or unlikely to lead to the discovery of relevant evidence? The court cautions counsel that, in the event meaningful meet and confer efforts are not made prior to the continued hearing date, the court may set an Order to Show Cause Re: Appointment of Discovery Referee.

Andorra, Wayal, Liu and Pang move the court for an order awarding them $12,741.50 in sanctions jointly and severally against Fang and her counsel of record.

Inasmuch as the motion for sanctions is predicated, at least in part, on the parties’ dispute regarding the above depositions, the court will continue the hearing to the date set forth above.

Andorra, Wayal, Liu and Pang move the court for an order restricting the February 15, 2023 notices of deposition, including the 1,328 collective demands for production of documents and covering 26 topics by PMKs.

Again, inasmuch as the motion for sanctions is predicated on the parties’ dispute regarding the depositions identified in Motion #1, the court will continue the hearing to the date set forth above.

[1] The court does not currently have a basis to share defense counsel’s view that plaintiff “has no case.” The motion for protective order is not a motion for summary judgment.