This case was last updated from Los Angeles County Superior Courts on 10/14/2020 at 16:15:50 (UTC).

FENG JIANG VS ANPING ZENG

Case Summary

On 04/04/2018 FENG JIANG filed a Property - Other Property Fraud lawsuit against ANPING ZENG. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RUTH ANN KWAN, SUSAN BRYANT-DEASON, DAVID J. COWAN and CHRISTOPHER K. LUI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0563

  • Filing Date:

    04/04/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RUTH ANN KWAN

SUSAN BRYANT-DEASON

DAVID J. COWAN

CHRISTOPHER K. LUI

 

Party Details

Plaintiffs, Petitioners and Not Classified By Court

JIANG FENG

FENG JIANG

JIANG FENG AKA JIANG FENG AN INDIVIDUAL

ANPING ZENG

Defendants, Respondents and Not Classified By Court

DOES 1 TO 10

ANPING ZENG

ZENG ANPING

ZENG ANPING AKA ZENG ANPING AN INDIVIDUAL

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

YOUNG GEORGE L. ESQ.

Attorney at Law Offices of George L. Young, APC

2485 Huntington Drive, Suite 100

San Marino,, CA 91108-2622

YOUNG GEORGE L.

WU YAW-JIUN GENE

Defendant and Respondent Attorneys

TROUTMAN SANDERS LLP

CHANG EUDEEN Y.

GROCHOW LAUREN ELIZABETH

GILLILAND KEVIN

DEAGLE WYNTER L

 

Court Documents

Notice of Change of Firm Name

9/18/2020: Notice of Change of Firm Name

Declaration - DECLARATION OF YAW-JIUN (GENE) WU ISO RESPONSE TO OSC

8/20/2020: Declaration - DECLARATION OF YAW-JIUN (GENE) WU ISO RESPONSE TO OSC

Declaration - DECLARATION OF KEVIN GILLILAND IN SUPPORT OF DEFENDANT ANPING ZENGS SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR TERMINATING SANCTIONS, MONETARY SANCTIONS OR ALTERNATIVELY EVIDENTIARY SA

8/4/2020: Declaration - DECLARATION OF KEVIN GILLILAND IN SUPPORT OF DEFENDANT ANPING ZENGS SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR TERMINATING SANCTIONS, MONETARY SANCTIONS OR ALTERNATIVELY EVIDENTIARY SA

Request for Judicial Notice

7/21/2020: Request for Judicial Notice

Declaration - DECLARATION OF BARRY FLORENCE

7/21/2020: Declaration - DECLARATION OF BARRY FLORENCE

Motion for Terminating Sanctions

3/30/2020: Motion for Terminating Sanctions

Notice of Case Management Conference

3/6/2020: Notice of Case Management Conference

Association of Attorney

10/24/2019: Association of Attorney

Motion to Compel - MOTION TO COMPEL COMPLIANCE WITH COURT ORDER, RESPONSES TO DOC REQUESTS, FOR SANCTIONS AND PROTECTIVE ORDER

9/24/2019: Motion to Compel - MOTION TO COMPEL COMPLIANCE WITH COURT ORDER, RESPONSES TO DOC REQUESTS, FOR SANCTIONS AND PROTECTIVE ORDER

Demurrer - without Motion to Strike

8/14/2019: Demurrer - without Motion to Strike

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS; HEARING ON M...)

7/23/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS; HEARING ON M...)

Request for Judicial Notice

6/26/2019: Request for Judicial Notice

Declaration in Support of Ex Parte Application

7/10/2019: Declaration in Support of Ex Parte Application

Opposition - OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

7/10/2019: Opposition - OPPOSITION TO MOTION FOR JUDGMENT ON THE PLEADINGS

Request for Judicial Notice

7/16/2019: Request for Judicial Notice

REPLY TO MOTION FOR UNDERTAKING PURSUANT TO CODE OF CIVIL PROCEDURE 1030

9/13/2018: REPLY TO MOTION FOR UNDERTAKING PURSUANT TO CODE OF CIVIL PROCEDURE 1030

SUPPLEMENTAL DECLARATION OF ZHIQIANG ZHOU IN SUPPORT OF DEFENDANT'S REPLY TO MOTION FOR UNDERTAKING PURSUANT TO CODE OF CIVIL PROCEDURE 1030

9/13/2018: SUPPLEMENTAL DECLARATION OF ZHIQIANG ZHOU IN SUPPORT OF DEFENDANT'S REPLY TO MOTION FOR UNDERTAKING PURSUANT TO CODE OF CIVIL PROCEDURE 1030

Minute Order -

9/20/2018: Minute Order -

169 More Documents Available

 

Docket Entries

  • 09/27/2021
  • Hearing09/27/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Leave to File Second Amended Complaint

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  • 08/26/2021
  • Hearing08/26/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Status of Appeal

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  • 09/18/2020
  • DocketNotice of Change of Firm Name; Filed by Feng Jiang (Plaintiff)

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  • 08/27/2020
  • Docketat 08:30 AM in Department 20, David J. Cowan, Presiding; Hearing on Motion for Leave (to File Second Amended Complaint) - Held - Continued

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  • 08/27/2020
  • Docketat 08:30 AM in Department 20, David J. Cowan, Presiding; Order to Show Cause Re: (Stay) - Held - Continued

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  • 08/27/2020
  • DocketNotice of Ruling; Filed by Feng Jiang (Plaintiff)

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  • 08/27/2020
  • DocketMinute Order ( (Order to Show Cause Re: Stay; Hearing on Motion for Leave to ...)); Filed by Clerk

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  • 08/20/2020
  • DocketDeclaration (Of Yaw-Jiun (Gene) Wu ISO Response to OSC); Filed by Feng Jiang (Plaintiff)

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  • 08/20/2020
  • DocketBrief (in Response to Order to Show Cause re Stay); Filed by Anping Zeng (Defendant)

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  • 08/20/2020
  • DocketDeclaration (of Kevin Gilliland in support of Brief in Response to Order to Show Cause re Stay); Filed by Anping Zeng (Defendant)

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230 More Docket Entries
  • 06/04/2018
  • DocketMinute order entered: 2018-06-04 00:00:00; Filed by Clerk

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  • 06/01/2018
  • DocketProof-Service/Summons; Filed by Feng Jiang (Plaintiff)

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  • 06/01/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/04/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 05/04/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 05/04/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 05/04/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/04/2018
  • DocketComplaint; Filed by Feng Jiang (Plaintiff)

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  • 04/04/2018
  • DocketCOMPLAINT FOR DAMAGES

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  • 04/04/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC700563    Hearing Date: August 27, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20

Hearing Date: Thursday, August 27, 2020

Case Name: Jiang v. Zeng

Case No.: BC700563

Motion: Leave to File SAC and OSC re: Stay

Moving Party: Defendant Zeng (Sanctions); Plaintiff Jiang (Leave to File SAC)

Responding Party: Plaintiff Jiang (Sanctions); Defendant Zeng (Leave to File SAC)

Notice: OK

Ruling: Jiang’s Motion for Leave to File the Second Amended Complaint is CONTINUED to August 26, 2021 at 8:30 a.m. in this Department.

The Court issues an OSC re: status of appeal for August 26, 2021 at 8:30 a.m. in this Department.

All matters in this action are now stayed—including Jiang’s court-ordered deposition—pending the outcome of Jiang’s appeal and further order of this Court. The stay shall not affect any monetary sanctions imposed on Jiang thus far.

Zeng to give notice.

 

 

BACKGROUND

 

On May 29, 2015, Anping Zeng filed a complaint against Los Angeles Film Regional Center II, LP and Feng Jiang, seeking declaratory relief on a controversy over Zeng and Jiang’s ownership of a “unit” of Los Angeles Film Regional Center. This action is case no. BC583483, the “Los Angeles Film Case.”

On April 4, 2018, Plaintiff Feng Jiang filed a Complaint against Defendant Anping Zeng. Plaintiff and Defendant divorced in 2011.

On July 5, 2018, Judge Hill found the Los Angeles Film Case not related to this case.

On March 30, 2020, Zeng filed this Motion for Sanctions after Jiang and his handwriting expert, Mr. Black, failed to appear for multiple noticed and court-ordered depositions.

On April 2, 2020, Jiang filed a Notice of Substitution of Attorney, substituting former counsel Mr. Young for current counsel, Mr. Wu.

On April 20, 2020, Judge Rice issued judgment in favor of Zeng following a bench trial in the Los Angeles Film Case. Judge Rice’s ruling addressed the dispute over enforceability of two divorce settlement agreements executed by Zeng and Jiang in September and November 2011.

On June 30, 2020, Jiang filed a Motion for Leave to File a Second Amended Complaint. The Second Amended Complaint asserts contract claims based on the November 2011 divorce agreement, which was the subject of Judge Rice’s April 20 judgment.

On July 28, 2020, after hearing argument from the parties, the Court took this motion under submission and requested supplemental briefing regarding Jiang’s Declaration, which is written in English, in light of Jiang’s representations that he does not understand written English.

On August 4, 2020, Zeng and Jiang filed their Supplemental Briefs.

On August 17, 2020, the Court issued its final ruling granting in part and denying in part the motion for sanctions. The Court imposed monetary sanctions of $8,000 on Jiang alone. The Court denied the OSC re: contempt, finding there was insufficient evidence of willful refusal to comply with court orders. The Court issued an evidentiary sanction precluding the testimony of handwriting expert Mr. Black at trial, but denied any other evidentiary sanctions and denied terminating sanctions. The Court ordered Jiang to submit to deposition before the end of September. The Court continued Jiang’s Motion for Leave to File the SAC to August 27, 2020 and issued an OSC re: stay pending Jiang’s appeal, also set for August 27, 2020.

On August 20, 2020, Jiang and Zeng filed Supplemental Briefs in response to the OSC re: stay pending appeal.

DISCUSSION

The critical issue on Jiang’s Motion for Leave to File the SAC is whether, and to what extent, Judge Rice’s April 20 judgment in the Los Angeles Film action has res judicata effect barring the SAC. Zeng contends the claims asserted in the SAC are obviously barred and subject to demurrer based on Judge Rice’s judgment that the September 2011 agreement is enforceable. Jiang contends the judgment lacks res judicata effect because Jiang has appealed the judgment. (Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal. App. 4th 1168, 1174 (no res judicata until appeal exhausted or time to appeal expired.)) On August 17, 2020, the Court issued an OSC re: why this case should not be stayed pending appeal, finding that a stay may allow the Court to determine whether Jiang’s claims are barred by res judicata. The Court also ordered the parties to address whether Jiang’s deposition should be delayed until after the Court is able to decide the motion for leave, in case the SAC would affect the scope of Jiang’s deposition. On August 20, 2020, the parties submitted supplemental briefing in response to the OSC re: stay.

From review of the supplemental briefing, the Court notes that Zeng supports the stay and Jiang is similarly amenable to the stay—provided that the Court rules on the Motion for Leave to File the SAC. Jiang argues that, unless the Court allows the filing of the SAC, the Court is bound by Judge Hill’s July 5, 2018 order finding these cases are not related. Jiang argues there are no overlapping issues unless and until the SAC is filed. Thus, issuing a stay would be an improper reconsideration of Judge Hill’s order finding the cases not related if the stay is issued without Jiang filing the SAC. Zeng argues Judge Hill lacked certain critical information in finding the cases not related in mid-2018—specifically, Jiang did not produce the November 2011 divorce agreement until August 2019, shortly before trial in the Los Angeles Film Case.

The November 2011 divorce agreement is what ties this action regarding the Dagu Road Property to the Los Angeles Film Case. If Judge Hill was not aware of the November 2011 Agreement, then Judge Hill could not have considered it in finding these cases not related. The Complaint in this action explicitly pertains to the Dagu Road Property, which is also the subject of the November 2011 Agreement that Judge Rice addressed in the Los Angeles Film Case trial. Thus, there are now overlapping issues between the two cases regardless of whether the SAC is filed; the Motion for Leave itself raises issues common to both proceedings. Thus, the Court does not reconsider Judge Hill’s ruling that these cases are not related—factual circumstances have changed substantially since mid-2018.

Moreover, the Court cannot grant the Motion for Leave without addressing Zeng’s res judicata argument. As discussed, Zeng’s res judicata argument hinges on the outcome of Jiang’s appeal. Indeed, Jiang recognizes that “the preclusive impact of Judge Rice’s ruling on this case is, at best, uncertain.” (Supp. Brief, p. 3:23.) Similarly, “Jiang agrees that if Judge Rice’s Judgment is upheld, then some of the issues encompassed therein may be relevant to this action and may even have some issue preclusive effect in this case.” (Supp. Brief, p. 4:16-18.) Thus, the Court cannot properly resolve the res judicata issue while Jiang’s appeal is pending.

Jiang next argues that continuing the Motion for Leave will engender a statute of limitations issue, but does not identify which claims are at risk of being timebarred or identify the applicable statute of limitations. Nonetheless, the Court finds the stay pending appeal will toll an applicable statute of limitations under CCP sec. 356. Mission West Properties L.P. v. Republic Properties Corp. (2011) 197 Cal.App.4th 707 is on point. In Mission West, the trial court stayed an action pending disposition of a concurrent action in Maryland. After the stay was lifted, the defendants filed a cross-complaint. The plaintiffs demurred on statute of limitations grounds, but the trial court found the crossclaims were not barred “because the action had been stayed during the pendency of the Maryland action, thus tolling the running of the limitations periods.” (Id. at 720.) On appeal, the Sixth District concluded that, “[u]nquestionably, the limitations period . . . was tolled between the imposition of the stay on May 15, 2001 and the order lifting the stay, which apparently occurred on July 10, 2006.” (Id.) “Under Code of Civil Procedure section 356, the period of the stay ‘is not part of the time limited for the commencement of the action.’” (Id.) Thus, “Appellants' resort to the applicable statutes of limitations is without foundation.” (Id.)

Similarly here, a stay pending disposition of Jiang’s appeal “unquestionably” tolls the applicable statutes of limitations for Jiang’s claims—at least to the extent that those statutes of limitations have not already expired. (See also Ambriz v. Kress (1983) 143 Cal.App.3d 963, 971 (“The time this matter was on appeal is excluded from the time in which the motion for contribution had to be brought” under CCP sec. 356.)) Therefore, Jiang will not be prejudiced by continuing the Motion for Leave and imposing a stay pending disposition of Jiang’s appeal.

In view of the foregoing, the Court finds that continuing the Motion for Leave will not prejudice Jiang. All matters in this action are now stayed—including Jiang’s court-ordered deposition, as neither party opposes staying the deposition—pending the outcome of Jiang’s appeal and further order of this Court. The stay shall not affect any monetary sanctions imposed on Jiang thus far. The Motion for Leave is CONTINUED to August 26, 2021 at 8:30 a.m.; the Court also issues an OSC re: status of appeal for August 26, 2021 at 8:30 a.m.

CONCLUSION

Jiang’s Motion for Leave to File the Second Amended Complaint is CONTINUED to August 26, 2021 at 8:30 a.m. in this Department.

The Court issues an OSC re: status of appeal for August 26, 2021 at 8:30 a.m. in this Department.

All matters in this action are now stayed—including Jiang’s court-ordered deposition—pending the outcome of Jiang’s appeal and further order of this Court. The stay shall not affect any monetary sanctions imposed on Jiang thus far.

Zeng to give notice.

Case Number: BC700563    Hearing Date: July 28, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date: Tuesday, July 28, 2020

Case Name: Jiang v. Zeng

Case No.: BC700563

Motion: Sanctions and Leave to File SAC

Moving Party: Defendant Zeng (Sanctions); Plaintiff Jiang (Leave to File SAC)

Responding Party: Plaintiff Jiang (Sanctions); Defendant Zeng (Leave to File SAC)

Notice: OK


Ruling: Zeng’s Motion for Sanctions is GRANTED IN PART AND DENIED IN PART. The Court DENIES WITHOUT PREJUDICE Zeng’s request for monetary sanctions. The Court DENIES the OSC re: contempt for insufficient evidence of willful refusal to comply with court orders.

The Court GRANTS the request for an evidentiary sanction precluding the testimony of Mr. Black at trial. Mr. Black is not ordered to submit to deposition.

The Court DENIES the request for terminating sanctions and/or evidentiary sanctions precluding Jiang from testifying.

The Court orders Jiang submit to deposition before the end of September. Unjustified failure to attend will result in sanctions as appropriate.

Jiang’s Motion for Leave to File the Second Amended Complaint is CONTINUED to August 27, 2020 at 8:30 a.m. in this Department pending the outcome of Jiang’s appeal. The Court also issues an OSC re: stay for August 27, 2020 at 8:30 a.m. in this Department.

Zeng to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect.


 

 

 

 

 

 

 

BACKGROUND

 

On April 4, 2018, Plaintiff Feng Jiang filed a Complaint against Defendant Anping Zeng. Plaintiff and Defendant divorced in 2011.

On June 18, 2019, the Court granted Zeng’s motion to compel and ordered Jiang to attend a deposition in Hong Kong “before the end of July”

On July 23, 2019, the Court ordered Jiang to provide further responses to Zeng's requests for production. The Court further imposed $1,500 in sanctions against Jiang and his former counsel.[1]

On July 24, 2019, Zeng noticed Jiang’s deposition for July 31, 2019.

On July 31, 2019, the parties executed a stipulation to continue Jiang’s deposition to August 26, 2019 due to a scheduling conflict (the “Deposition Stipulation”). The Deposition Stipulation provided that the parties would “meet and confer and come to a mutual agreement regarding a second date” if Jiang’s deposition was not completed on August 26, 2019.

On August 23, 2019, Zeng noticed the deposition of Mr. James Black, a handwriting expert or consultant retained by Jiang, for September 3, 2019.

On August 26, 2019, Zeng took Jiang’s deposition in California (not Hong Kong) but Jiang terminated the deposition early, claiming that he felt too ill to continue.

On September 3, 2019, Black failed to appear for the noticed deposition.

On September 24, 2019, Zeng filed a motion to compel compliance with the July 23 Order due to Jiang’s failure to serve code-compliant responses. Zeng also moved to compel responses to document requests and sought to delay her deposition by Jiang until after Jiang provided the necessary discovery. Zeng also requested sanctions.

On October 4, 2019, Jiang served supplemental responses to the requests for production.

On October 25, 2019, Zeng noticed Jiang’s deposition again for November 4, 2019.

On November 4, 2019, Jiang failed to appear for his noticed deposition.

On November 22, 2019, the Court ordered Jiang to attend a second deposition session on January 21, 2020 in order to continue the August 26 deposition. The Court also ordered Mr. Black to submit to deposition on January 24, 2020. The dates selected were agreed upon by the parties. Zeng then withdrew her September 24 motion to compel.

On January 21, 2020, Jiang once again failed to appear for deposition.

On January 24, 2020, Black failed to appear for deposition.

On March 30, 2020, Zeng filed this Motion for Sanctions.

On April 20, 2020, Judge Rice issued judgment in favor of Zeng following a bench trial in BC583483 (the “Los Angeles Film Case”), another action between Zeng and Jiang involving a dispute over the enforceability of two divorce settlement agreements executed in September and November 2011.

On June 30, 2020, Jiang filed a Motion for Leave to File a Second Amended Complaint. The Second Amended Complaint asserts contract claims based on the November 2011 divorce agreement, which was the subject of Judge Rice’s April 20 judgment.

On July 15, 2020, Jiang filed an Opposition to the Motion for Sanctions. Zeng filed an Opposition to the Motion for Leave.

On July 21, 2020, Zeng and Jiang filed their respective Replies.

DISCUSSION

Sanctions

Zeng seeks terminating and/or evidentiary sanctions against Jiang for noncompliance with the Court’s orders compelling attendance at depositions and code-compliant responses to requests for production. Generally, Jiang argues these errors are (1) insufficient to warrant terminating sanctions and (2) attributable to his former counsel, Mr. Young, who allegedly failed to inform Jiang and Mr. Black of their discovery obligations and relevant court orders.

The “terminating sanction is a drastic penalty and should be used sparingly.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) A “terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Id.) It is an abuse of discretion to impose terminating sanctions without “a meaningful effort” to determine whether monetary, issue, or evidentiary sanctions would be effective. (Id. at 605.) It is also relevant whether the violation was willful or negligent, “the detriment to the propounding party, and the number of formal or informal attempts to obtain the discovery. (See Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.) As a general rule, the negligence of counsel is attributable to the client and the client may be sanctioned for an attorney’s negligence in meeting discovery obligations; however, counsel’s unilateral and willful violations of discovery orders cannot be attributed to the client. (Sauer v. Superior Court (1987 195 Cal.App.3d 213, 231.) Issue and evidentiary sanctions are a middle ground between monetary and terminating sanctions; however, a motion for issue or evidentiary sanctions must be accompanied by a separate statement. (CRC Rule 3.1345(a)(7).)

Jiang asserts two main excuses for his (and Mr. Black’s) sequential failures to appear for noticed depositions: (1) that Mr. Young failed to inform Jiang and Black of the depositions and (2) that Mr. Black was not required to appear because Jiang does not plan on calling him as an expert witness. The latter argument is rejected as irrelevant—the November 22, 2019 Order specifically ordered Mr. Black’s deposition on January 24, 2020 upon the agreement of the parties and Jiang has only just now objected to that order. Whether Jiang intends to call Mr. Black does not change the fact that Mr. Black did not appear for a court-ordered deposition. However, Jiang attributes this to Mr. Young’s negligence in failing to inform him and Black of the noticed depositions. Jiang’s position is not particularly credible, especially in light of Judge Rice’s in camera review of Jiang’s passport—which indicated that Jiang may have been in California when he represented to the Court that he was in China to delay a deposition, as well as other evidence of misuse of the discovery process.

However, imposition of terminating sanctions is improper if a lesser sanction would motivate compliance with discovery obligations. (Lopez, supra, 246 Cal.App.4th 604.) Now that Jiang is represented by new counsel, the Court can order that Jiang’s deposition proceed again and if Jiang again fails to appear, the Court will assess as sanctions a portion of the fees now sought and further evidentiary sanctions if needed. As Jiang is now represented by new counsel, the Court seeks to give new counsel some benefit of the doubt in assuming that they will comply with Jiang’s discovery obligations and the orders of this Court. Nonetheless, the Court will impose sanctions later if violations persist.

At this point, evidentiary sanctions cannot be imposed because Zeng has not specifically identified any subject that Jiang failed to testify upon and no separate statement has been provided. (CRC Rule 3.1345.) No basis has been shown to generally bar Jiang’s testimony, which would be an extreme sanction. Issue or evidentiary sanctions may be warranted by evasive or dishonest conduct at Jiang’s deposition.

The Court does not intend to require Mr. Black attend a deposition—Jiang has indicated Mr. Black will not be called for trial and the Court intends to hold Jiang to that assurance. The Court therefore GRANTS the request for an evidentiary sanction precluding Jiang from calling Mr. Black as a witness at trial or submitting Mr. Black’s expert reports. No deposition is needed because Mr. Black is merely a “consultant” for Jiang, not a trial witness.

On July 15, 2020, Jiang served Amended Responses with his Opposition, including production of nearly one thousand pages of new documents. Zeng construes this belated production as evidence Jiang was previously withholding responsive documents. Zeng’s view is not persuasive—the Supplemental Responses were prepared and served by Mr. Young rather than Jiang’s current counsel. Jiang’s current counsel, who prepared the Amended Responses, by definition cannot “withhold” documents as counsel had nothing to do with Jiang’s allegedly defective responses. Zeng does not argue the Amended Responses were deficient in any way, unlike the Supplemental Responses. As Jiang has now produced responsive documents, terminating sanctions would be excessive and unnecessary. (Lopez, supra, 246 Cal.App.4th at 604 (“trial court should select a sanction that is ‘tailor[ed] ... to the harm caused by the withheld discovery’”); but see Sinaiko Healthcare Consulting Inc. v. Pacific Healthcare Consultants (2007) 184 Cal.App.4th 390, 409 (discovery sanctions may be imposed even if the requested discovery was provided after filing of motion for sanctions.))

Zeng argues sanctions would be proper for Jiang’s failure to timely pay the $1,500 sanction imposed by Judge Kwan on July 23, 2019. Jiang did not pay the $1,500 sanction until July 14, 2020, almost a year later. Jiang argues the sanctionable error was unintentional, not willful, because Mr. Young never informed Jiang of the sanction order. An attorney’s negligence may be imputed to the client, but an attorney’s willful noncompliance cannot. (See Sauer, supra, 195 Cal.App.3d at 231.) However, Zeng notes Jiang was in fact present in the courtroom on July 23, 2019 when Judge Kwan imposed sanctions, casting some doubt on Jiang’s claim of ignorance. In any event, evidentiary or terminating sanctions are not properly imposed for nonpayment of monetary sanctions. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 (unpaid sanctions can be enforced as a judgment and therefore are not a basis for further sanctions.))

In summary: the Court now DENIES WITHOUT PREJUDICE Zeng’s request for monetary sanctions—which may still be sought if Jiang does not appear for deposition.

The Court DENIES the request for an OSC re: contempt for insufficient evidence of willful refusal to comply with the Court’s orders rather than the negligence of Jiang’s former counsel.

The Court GRANTS the request for an evidentiary sanction precluding the testimony of Mr. Black at trial, as Jiang does not oppose this sanction and apparently does not intend to call Mr Black—this way, the parties will not have to incur unnecessary expenses deposing Mr. Black.

The Court DENIES the request for terminating sanctions and/or evidentiary sanctions precluding Jiang from testifying. The Court orders Jiang submit to deposition before the end of September. Unjustified failure to attend will result in sanctions as appropriate.

Leave to File SAC

The critical dispute on Jiang’s motion for leave is whether and to what extent Judge Rice’s April 20 judgment in Los Angeles Film action has res judicata effect barring the SAC. Zeng contends the claims asserted in the SAC are obviously barred and subject to demurrer based on Judge Rice’s judgment that the September 2011 agreement is enforceable. Jiang contends the judgment lacks res judicata effect because Jiang has appealed the judgment. (Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal. App. 4th 1168, 1174 (no res judicata until appeal exhausted or time to appeal expired.))

The Court finds it would be premature to grant leave where Judge Rice’s judgment is obviously relevant to the disposition of the claims in the SAC. Judge Rice has already conducted a bench trial on the enforceability of the September and November 2011 divorce agreements. To the extent Jiang’s claims are inconsistent with Judge Rice’s findings on enforceability, those claims would be facially subject to demurrer and it is not necessary to grant leave. The better course of action would be to stay proceedings pending the outcome of Jiang’s appeal. This would preserve the status quo pending appeal to minimize possible disruption and allow the Court to determine whether Jiang’s claims are clearly barred by res judicata. Though this action and the adjacent action were not deemed related in 2018, the actions now have overlapping issues due to the claims in the SAC and Judge Rice’s April 20, 2020 judgment.

Therefore, the Court issues an OSC re: why this case should not be stayed pending appeal. The parties should also address whether Jiang’s deposition should be delayed until after the Court is able to decide the motion for leave, in case the Second Amended Complaint would change the scope of Jiang’s deposition. Trial is likely to be delayed due to the logistical difficulties of trial during the COVID-19 pandemic, but if further delay is required to accommodate the appeal and deposition the Court will consider any requests.

 

CONCLUSION

 

The Motion for Sanctions is GRANTED IN PART AND DENIED IN PART.

The Court DENIES WITHOUT PREJUDICE Zeng’s request for monetary sanctions.

The Court DENIES the request for an OSC re: contempt for insufficient evidence of willful refusal to comply with court orders.

The Court GRANTS the request for an evidentiary sanction precluding the testimony of Mr. Black at trial. Mr. Black is not ordered to submit to deposition.

The Court DENIES the request for terminating sanctions and/or evidentiary sanctions precluding Jiang from testifying.

The Court orders Jiang submit to deposition before the end of September. Unjustified failure to attend will result in sanctions as appropriate.

Jiang’s Motion for Leave to File the Second Amended Complaint is CONTINUED to August 27, 2020 at 8:30 a.m. in this Department pending the outcome of Jiang’s appeal. The Court also issues an OSC re: stay for August 27, 2020 at 8:30 a.m. in this Department.

Zeng to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect.


[1] Jiang argues the Court’s order is ambiguous as to whether sanctions are imposed against Jiang, Jiang’s former counsel, or both. However, the order states that sanctions were requested against Jiang and his former counsel and subsequently imposes $1,500 in sanctions. The sole reasonable construction is that $1,500 sanctions were imposed, as requested, against both Jiang and his former counsel—as accurately reflected by the Notice of Ruling.