XUE ZHONG LIU ET AL VS. YU XIN AN

Tentative Rulings

Case Number: EC064414    Hearing Date: August 14, 2020    Dept: A

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Liu v An

Discovery Motions

ALLEGATIONS:

Plaintiffs Xue Zhong Liu (“Zhong”), Xue Xin Liu (“Xin”), Norman AA, Inc. (“Norman AA”), and CBA International Trade Inc. (“CBA”) (collectively, “Plaintiffs”) allege that in a series of covert actions beginning around 2011, Defendant Yu Xin An (“An”), with the advice and assistance of her mother Zhang Shuhua, acting in connection with other Defendants, conspired to take steps to orchestrate the unauthorized and illegal theft of money and property belonging to Plaintiffs in separate schemes totaling over $30,000,000.00 USD in value.

The action was commenced on September 09, 2015. The Seventh Amended Complaint (“7AC”), filed June 14, 2018, alleges causes sounding it (1) Common Count for Money Lent by Xin against An; (2) Conversion by Zhong against An; (3) Fraudulent Concealment by Zhong against An; (4) Breach of Fiduciary Duty by Zhong against An; (5) Fraudulent Concealment by Xin and Norman AA against An, Halit James Ma (“Ma”), Jack Shao aka Chuang Shao (“J. Shao”), Fei Zhou aka Pandora Shao aka Pandora Feizhou Shao (“P. Shao”), and Alliance Global (“Alliance”); (6) Fraudulent Concealment by Xin and CBA against An, Ma, Alliance, J. Shao, P. Shao; (7) Fraudulent Concealment by Xin and CBA against An; (8) Breach of Fiduciary Duty by Xin and CBA against J. Shao, Ma, Alliance, Global Escrow Services, Inc. (“Global”); (9) Fraudulent Concealment by Xin and CBA against Ma and Alliance; (10) Breach of Fiduciary Duty by CBA against Global; (11) Quiet Title by Norman AA against An re: Arcadia Home; (12) Quiet Title by CBA against An re: Arcadia Land; (13) Quiet Title by CBA against An re: Covina Land; (14) Constructive Trust in favor of Xin, Norman AA, and CBA; (15) Conversion by Xin and CBA against J. Shao; (16) Conversion by Xin against An and Zhang; (17) Common Count for Money Lent by Zhong against An; and (18) Negligence or Negligence Per Se by Xin, CBA, and Norman AA against Global.

PRESENTATION:

On June 07, 2019, the Honorable Judge John Kralik recused himself from the case, and it was transferred to Department A and set for hearing on August 09, 2019.

Defendant East West Bank (“EWB”) filed the instant motions on July 14, 2020, Plaintiffs filed oppositions to both motions on August 3, 2020, and EWB filed replies to both motions on August 7, 2020.

On July 16, 2020, EWB filed a joint stipulation by and between all parties to continue the trial date to January 25, 2021, or to a date convenient to the Court's calendar, with all trial, discovery, motion, and expert discovery cut-off dates continued according to code.

RELIEF REQUESTED:

EWB moves for an order compelling Plaintiffs to provide responses without objection to (1) EWB's requests for production, set two, to Zhong; (2) EWB's requests for production, set two, to Norman; (3) EWB's supplemental request for production, number one, to Norman; and (4) EWB's supplemental request for production, number one, to Zhong. EWB further requests associated sanctions against Zhong, Norman, and their counsel, Mark Von Esch, in the amount of $1560.

EWB moves for an order compelling Plaintiffs to provide responses without objection to (1) EWB's special interrogatories, set two, to Zhong; (2) EWB's supplemental interrogatory, number one, to Norman; and (3) EWB's supplemental interrogatory, number one, to Zhong. EWB further requests associated sanctions against Zhong, Norman, and their counsel, Mark Von Esch in the amount of $2,460.

DISCUSSION:

Standard of Review – Motion to Compel RFP

A motion to compel responses may be brought where a responding party fails to timely respond to written discovery. (Code Civ. Proc., § 2031.300.) No meet and confer is necessary where a party fails to respond to written discovery. (See Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 906.) Sanctions are mandatory for a party making or opposing a motion, except when the party making or opposing the motion is determined by the Court to have been acting with substantial justification, or that other circumstances would render the imposition of sanctions unjust. (Code Civ. Proc., § 2031.300, subd. (c).) Under the Civil Discovery Act, the Court is only entitled to impose monetary sanctions in the amount of “reasonable expenses, including attorney’s fees, incurred by anyone as a result of” the misuse of discovery. (Code Civ. Proc., § 2023.030, subd. (a).) The purpose of discovery sanctions is “not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285, 301.) Consequently, “[t]he trial court cannot impose sanctions for misuse of the discovery process as a punishment.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.)

Standard of Review – Motion to Compel Responses to Interrogatories

A motion to compel responses to interrogatories may be brought where a responding party fails to timely respond to written discovery. Code of Civ. Proc. §2030.290. No meet and confer is necessary where a party fails to respond to written discovery. See Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 906. An untimely responding party waives all objections, including privilege, unless they subsequently serve responses in substantial compliance with the Civil Discovery Act and demonstrate that their failure is the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2030.290, subd. (a).) Sanctions are mandatory for a party making or opposing a motion, except when the party making or opposing the motion is determined by the Court to have been acting with substantial justification, or that other circumstances would render the imposition of sanctions unjust. (Code Civ. Proc., § 2030.290, subd. (c).) Under the Civil Discovery Act, the Court is only entitled to impose monetary sanctions in the amount of “reasonable expenses, including attorney’s fees, incurred by anyone as a result of” the misuse of discovery. (Code Civ. Proc., § 2023.030, subd. (a).) The purpose of discovery sanctions is “not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285, 301.) Consequently, “[t]he trial court cannot impose sanctions for misuse of the discovery process as a punishment.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.)

Merits

A portion of the both motions has been mooted as per Plaintiffs' Declaration of Mark Von Esch, which states that the relevant responses and interrogatories have been served as of July 30, 2020 and August 3, 2020, respectively.

Sanctions

EWB admits the service of the responses but (1) maintains its request for monetary sanctions and (2) further argues for an order compelling code-compliant responses. EWB argues that sanctions should still apply as to both motions, as Defendants failed to act with substantial justification or circumstances making sanctions unjust. EWB contends that Plaintiffs were served with the requests for production, set one, and set two, on December 23, 2019 and February 24, 2020, respectively. (Decl. Slater, Exh. A, B, C, D.) EWB contends the responses were served on August 3, 2020, making the delay seven and five months, respectively, for set one and set two. EWB further argues it attempted to meet and confer with Plaintiffs regarding both discovery requests three times in March and June without a response. (Decl. Slater, ¶¶ 5, 6, 7.) Defendants state in the Declaration of Mark Von Esch that Ms. Jennifer Slater's June email was placed in the spam folder regarding both discovery motions, and that the interrogatory request was propounded during a time it was unavailable.

The Court finds that Defendants fail to show "substantial justification, or that other circumstances would render the imposition of sanctions unjust" pursuant to CCP § 2031.300(c) and CCP § 2030.290(c). Thus, the Court will award Plaintiffs sanctions (1) for the requests for production motion in the amount of $1,560, representing 5 hours of work at $300 per hour plus a $60 filing fee; and (2) for the interrogatory motion in the amount of $2,460, representing 8 hours of work at $300 per hour plus a $60 filing fee.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant East West Bank’s Motion to Compel Requests for Production and Motion to Compel Interrogatories came on regularly for hearing on August 14, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO COMPEL REQUESTS FOR PRODUCTION IS MOOTED, WITH SANCTIONS AWARDED FOR PLAINTIFFS IN THE AMOUNT OF $1,560.

THE MOTION TO COMPEL INTERROGATORIES IS MOOTED, WITH SANCTIONS AWARDED FOR PLAINTIFFS IN THE AMOUNT OF $2,460.

DATE: _______________ _______________________________

JUDGE