This case was last updated from Los Angeles County Superior Courts on 08/29/2021 at 01:03:30 (UTC).

WENJUAN LUO VS CHENLONG TAN

Case Summary

On 08/15/2019 WENJUAN LUO filed a Labor - Other Labor lawsuit against CHENLONG TAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY W. ALARCON. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9272

  • Filing Date:

    08/15/2019

  • Case Status:

    Other

  • Case Type:

    Labor - Other Labor

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GREGORY W. ALARCON

 

Party Details

Plaintiff

LUO WENJUAN

Defendants

TAN CHENLONG AKA LAWRENCE TAN

MII STRATEGY INC. A CALIFORNIA CORPORATION

MII STRATEGY INC.

TAN CHENLONG

Attorney/Law Firm Details

Plaintiff Attorneys

MARKS PAUL

MARKS PAUL S.

Defendant Attorney

HSU RAY

 

Court Documents

Complaint

8/15/2019: Complaint

Declaration - DECLARATION OF MINH PHAN, ESQ. IN SUPPORT OF MOTION TO DEEM RFA'S ADMITTED

4/20/2021: Declaration - DECLARATION OF MINH PHAN, ESQ. IN SUPPORT OF MOTION TO DEEM RFA'S ADMITTED

Declaration - DECLARATION OF MINH PHAN, ESQ. IN SUPPORT OF MOTION TO COMPEL COMPLIANCE IN ACCORDANCE WITH PLAINTIFF'S RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS

4/20/2021: Declaration - DECLARATION OF MINH PHAN, ESQ. IN SUPPORT OF MOTION TO COMPEL COMPLIANCE IN ACCORDANCE WITH PLAINTIFF'S RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS

Motion to Compel - MOTION TO COMPEL COMPLIANCE IN ACCORDANCE WITH PLAINTIFF'S RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS

4/20/2021: Motion to Compel - MOTION TO COMPEL COMPLIANCE IN ACCORDANCE WITH PLAINTIFF'S RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS

Separate Statement

4/20/2021: Separate Statement

Motion to Deem RFA's Admitted

4/20/2021: Motion to Deem RFA's Admitted

Motion to Compel - MOTION TO COMPEL PLAINTIFF'S RESPONSES TO DEFENDANT'S SPECIAL INTERROGATORIES, SET ONE

4/22/2021: Motion to Compel - MOTION TO COMPEL PLAINTIFF'S RESPONSES TO DEFENDANT'S SPECIAL INTERROGATORIES, SET ONE

Declaration - DECLARATION OF MINH PHAN, ESQ. IN SUPPORT OF MOTION TO COMPEL

4/22/2021: Declaration - DECLARATION OF MINH PHAN, ESQ. IN SUPPORT OF MOTION TO COMPEL

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT MII STRATEGY, INC.S NOTICE OF MOTION AND MOTION FOR AN ORDER DEEMING THE TRUTH OF ALL MATTERS ADMITTED IN REQUESTS FOR ADMISSION, SET ONE

5/3/2021: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT MII STRATEGY, INC.S NOTICE OF MOTION AND MOTION FOR AN ORDER DEEMING THE TRUTH OF ALL MATTERS ADMITTED IN REQUESTS FOR ADMISSION, SET ONE

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT MII STRATEGY, INC.S NOTICE OF MOTION AND MOTION TO COMPEL COMPLIANCE IN ACCORDANCE WITH PLAINTIFF WENJUAN LUOS RESPONSES TO DEFENDANTS RE

5/3/2021: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT MII STRATEGY, INC.S NOTICE OF MOTION AND MOTION TO COMPEL COMPLIANCE IN ACCORDANCE WITH PLAINTIFF WENJUAN LUOS RESPONSES TO DEFENDANTS RE

Reply - REPLY OF DEFENDANT TO PLAINTIFF'S OPPOSITION TO MOTION TO DEEM RFA'S ADMITTED

5/7/2021: Reply - REPLY OF DEFENDANT TO PLAINTIFF'S OPPOSITION TO MOTION TO DEEM RFA'S ADMITTED

Reply - REPLY OF DEFENDANT TO PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL COMPLIANCE

5/7/2021: Reply - REPLY OF DEFENDANT TO PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL COMPLIANCE

Proof of Service (not Summons and Complaint)

5/13/2021: Proof of Service (not Summons and Complaint)

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL COMPLIANCE IN ACCORDANCE WITH PLA...)

5/14/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL COMPLIANCE IN ACCORDANCE WITH PLA...)

Opposition - OPPOSITION PLAINTIFF S OPPOSITION TO DEFENDANT MII STRATEGY, INC.S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE

5/17/2021: Opposition - OPPOSITION PLAINTIFF S OPPOSITION TO DEFENDANT MII STRATEGY, INC.S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE

Reply - REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL

5/21/2021: Reply - REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL PLAINTIFF'S RESPONSES TO SPECIAL ...)

5/28/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL PLAINTIFF'S RESPONSES TO SPECIAL ...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [NOTICE OF SETTLEMENT]

6/29/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [NOTICE OF SETTLEMENT]

42 More Documents Available

 

Docket Entries

  • 08/27/2021
  • Docketat 09:00 AM in Department 34; Final Status Conference - Not Held - Vacated by Court

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  • 08/19/2021
  • DocketRequest for Dismissal; Filed by Wenjuan Luo (Plaintiff)

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  • 06/29/2021
  • DocketCertificate of Mailing for ([Notice of Settlement]); Filed by Clerk

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  • 05/28/2021
  • Docketat 08:30 AM in Department 34; Hearing on Motion to Compel (Plaintiff's Responses to Special Interrogatories, Set One From Defendant MII Strategy, Inc.) - Held

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  • 05/28/2021
  • DocketMinute Order ( (Hearing on Motion to Compel Plaintiff's Responses to Special ...)); Filed by Clerk

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  • 05/21/2021
  • DocketReply (to Plaintiff's Opposition to Motion to Compel); Filed by MII Strategy Inc. (Defendant)

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  • 05/17/2021
  • DocketOpposition (Plaintiff s Opposition to Defendant MII Strategy, Inc.s Motion to Compel Further Responses to Special Interrogatories, Set One); Filed by Wenjuan Luo (Plaintiff)

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  • 05/14/2021
  • Docketat 08:30 AM in Department 34; Hearing on Motion to Compel (Plaintiff's Responses to Special Interrogatories, Set One From Defendant MII Strategy, Inc.) - Not Held - Rescheduled by Party

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  • 05/14/2021
  • Docketat 08:30 AM in Department 34; Hearing on Motion to Deem Request for Admissions Admitted - Held - Motion Denied

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  • 05/14/2021
  • Docketat 08:30 AM in Department 34; Hearing on Motion to Compel (Compliance in Accordance with Plaintiff's Responses to Request for Prodocution of Documents) - Held - Motion Granted

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51 More Docket Entries
  • 09/30/2019
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 09/27/2019
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Chenlong Tan (Defendant)

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  • 09/10/2019
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 09/10/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 08/30/2019
  • DocketProof of Personal Service; Filed by Wenjuan Luo (Plaintiff)

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  • 08/15/2019
  • DocketComplaint; Filed by Wenjuan Luo (Plaintiff)

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  • 08/15/2019
  • DocketSummons (on Complaint); Filed by Wenjuan Luo (Plaintiff)

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  • 08/15/2019
  • DocketCivil Case Cover Sheet; Filed by Wenjuan Luo (Plaintiff)

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  • 08/15/2019
  • DocketCivil Case Cover Sheet; Filed by Wenjuan Luo (Plaintiff)

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  • 08/15/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: *******9272    Hearing Date: August 26, 2020    Dept: 34

SUBJECT: Demurrer to FAC

Moving Party: Defendants Chenlong Tan and MII Strategy, Inc.

Resp. Party: Plaintiff Wenjuan Luo

The demurrer is OVERRULED as to the first and second cause of action.

The demurrer is SUSTAINED with leave to amend as to the thirteenth cause of action.

The demurrer is SUSTAINED without leave to amend as to the fifteenth cause of action.

PRELIMINARY COMMENTS:

Plaintiff’s Opposition to the Demurrer is barely three pages long. Plaintiff cites to no authority in opposition to Defendant’s arguments; the most that Plaintiff musters is the statement that “there is enough ‘there’ there.” (Opposition, p. 2:10.) The remainder of the “opposition” is pure argument of counsel.

Further, the majority of Plaintiff’s “opposition” is a diatribe against demurrers for “uncertainty.” Plaintiff states that he “cannot put this demurrer opposition to rest without climbing on a soap box, and thus respectfully requests the Court’s indulgence.” (Opposition, p. 2:13-14.) In the future, Plaintiff need not waste his time, opposing counsel’s time, or the Court’s time by “climbing on a soap box.”

BACKGROUND:

This action arises out of allegations from Plaintiff Wenjuan Luo that her employer, Defendants Chenlong Tan and MII Strategy, Inc., initiated a pattern and practice of sexual harassment and failure to properly compensate Plaintiff during Plaintiff’s employment with Defendants.

On August 15, 2019, Plaintiff Wenjuan Luo commenced this action and on May 13, 2020, filed a first amended complaint (“FAC”)

against Defendants Chenlong Tan (aka Lawrence Tan) and MII Strategy, Inc.

Plaintiff alleges causes of action for (1) discrimination based on sex harassment; (2) retaliation for reporting and/or not submitting to sex harassment; (3) fraud by intentional misrepresentation; (4) fraud by concealment; (5) failure to provide required meal periods; (6) failure to provide required rest breaks; (7) failure to pay overtime wages; (8) failure to pay wages due to a terminated employee; (9) failure to maintain mandatory employment records; (10) failure to provide adequate wage statements; (11) violation of the Business and Professions Code; (12) breach of contract; (13) negligence; (14) intentional infliction of emotional distress; and (15) negligent infliction of emotional distress.

On June 30, 2020, Defendants filed the instant demurrer to the first, second, thirteenth, and fifteenth causes of action on the grounds that (1) they fail to state facts sufficient to constitute causes of action and (2) they are uncertain.

ANALYSIS:

A. Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., ;;422.10, 589.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 430.50(a) (can be taken to the entire complaint or any cause of action within).

A demurrer may be brought under Code of Civil Procedure section 430.10(e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., ; 430.10(f).

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

B. Discussion

1. First Cause of Action: Discrimination – Sex Harrassment

 

Plaintiff’s first cause of action is for discrimination based on sex harassment, pursuant to Civil Code sections 51.7 and 51.9. (FAC, ¶ 16.)

Civil Code ; 51.7 provides that “[a]ll persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 . . . .” (Civ. Code ; 51.7, subd. (b).) Section 51 includes the following listed characteristics: sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.(Civ. Code, ; 51, subd. (b).)

Under Civil Code section 51.9, a sexual harassment cause of action is established if Plaintiff proves the following elements: (1) there is a business, service, or professional relationship between the plaintiff and defendant, such as with a physician; (2) the defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe; and (3) as a result, the plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right. (Civ. Code, ;51.9.)

Conduct is “pervasive” if the acts are so egregious as to alter the conditions of the underlying professional relationship and must consist of more than a few isolated incidents. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1048.) An isolated incident of harassing conduct may qualify as “severe” when it consists of a physical assault or the threat thereof. (Id.)

Defendants demur to the first cause of action on the grounds that “Plaintiff does not allege that she was subjected to violence or threat of violence” which is required to assert a claim pursuant to Civil Code section 51.7. (Demurrer, p. 5:11-19.)

Although Plaintiff references both Civil Code sections 51.7 and 51.9, this cause of action is really for Civil Code section 51.9. “Irrespective of the labels attached by the pleader to any alleged cause of action, [the court] examine[s] the factual allegations of the complaint, to determine whether they state a cause of action on any available legal theory.” (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764,773.) The Court finds that Plaintiff sufficiently alleges a cause of action for sex harassment pursuant to Civil Code section 51.9 to put Defendants on sufficient notice of the claim against them. In the FAC, Plaintiff alleges:

“At the time of her hire, Plaintiff was a recent college graduate. Immediately upon her hiring, Defendant Tan initiated a pattern and practice of unlawful sexual harassment. Specifically, he made inappropriate workplace comments; leered at her; invited her to his hotel room on a business trip; touched her inappropriately; asked her to work from his home past midnight on more than one occasion; and made overtures of a personal nature. The entreaties and the inappropriate conduct were persistent, and on each occasion Plaintiff rebuffed Defendant Tan. When Plaintiff rebuffed his advances for the last time, Tan became irate and engaged in a pattern and practice of retaliation. He began ignoring her and he stopped doing the things necessary for her and for the business to maintain a good working environment. He removed himself from the workplace, further breaking the promises he had made that he would work on growing the business. Finally, it got to the point where Plaintiff felt she was being discriminated against for having rebuffed his sexual advances; Plaintiff further felt that she was being constructively discharged by Defendant Tan.” (FAC, ¶ 13.)

This is more than sufficient. The Court OVERRULES the demurrer to the first cause of action.

2. Second Cause of Action: Retaliation

 

“The elements of a section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation.” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.) To establish a prima facie case of retaliation, “plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Id.) “[A]n employee need not prove an actual violation of law; it suffices if the employer [subjected him to an adverse employment action] for reporting his “reasonably based suspicions” of illegal activity. [Citation.]” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 87.)

Defendants demur to the second cause of action for retaliation on the grounds that “Plaintiff fails to elaborate any further respect to the basic fats that would form the elements of a retaliation claim.” (Demurrer, p. 6:18-19.) For example, Defendants argue that “Plaintiff fails to allege when she disclosed this information,” “when Plaintiff’s employment ended,” any “facts describing the protected activity that Plaintiff allegedly engaged in,” or facts “that would suggest that Plaintiff’s termination had any relation to her engaging in said protected activities.” (Id. at p. 6:19-24.)

The Court finds that Plaintiff sufficiently and clearly alleges facts to support a cause of action for retaliation that puts Defendants on notice of the claim against them.

In the FAC, Plaintiff alleges that she “registered complaints to Defendants about, among other things, the harassment she was enduring; the failure of Defendants to pay her and others properly; and Defendants’ mistreatment of her and other employees.” (FAC, ¶ 21.) Specifically, Plaintiff alleges that “immediately upon her hiring, Defendant Tan initiated a pattern and practice of unlawful sexual harassment. Specifically, he made inappropriate workplace comments; leered at her; invited her to his hotel room on a business trip; touched her inappropriately; asked her to work from his home past midnight on more than one occasion; and made overtures of a personal nature. The entreaties and the inappropriate conduct were persistent, and on each occasion Plaintiff rebuffed Defendant Tan. When Plaintiff rebuffed his advances for the last time, Tan became irate and engaged in a pattern and practice of retaliation. He began ignoring her and he stopped doing the things necessary for her and for the business to maintain a good working environment. He removed himself from the workplace, further breaking the promises he had made that he would work on growing the business. Finally, it got to the point where Plaintiff felt she was being discriminated against for having rebuffed his sexual advances; Plaintiff further felt that she was being constructively discharged by Defendant Tan.” (Id. at ¶ 13.) Plaintiff further alleges that “in retaliation for making said complaints and rebuffing Defendant Tan’s sexual advances, Defendants terminated her employment.” (Id. at ¶ 21.) Further, Plaintiff alleges that “less than a year after being hired, Plaintiff was constructively discharged.” (Id. at ¶ 14.)

This too is sufficient. The Court OVERRULES the demurrer to the second cause of action.

3. Thirteenth Cause of Action: Negligence

 

The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)

Defendants argue that “Plaintiff claims that she ‘suffered harm as a result of Defendants’ negligence,’ but aside from this vague statement, there are no facts alleged in the Complaint that would she that Plaintiff has a claim for negligence here.” (Demurrer, p. 7:6-8, citing Complaint [sic], ¶ 59.) Defendants maintain that “Plaintiff’s Complaint is more-or-less an action for the following claims: harassment; retaliation; fraud; various wage and hour violations; breach of contract; and intentional infliction of emotional distress.” (Id. at . 7:8-10.) Defendants argue that “none of the facts in these claims, however, support a separate claim for negligence.” (Id. at p. 7:10-11.)

In opposition, Plaintiff argues that “the negligence claim is good – or, respectfully, an amendment should be allowed.” (Opp., p. 1:22-23.) Plaintiff maintains that the conduct complained of in the harassment claims could be found by a trier of fact to be negligent, instead of intentional. (Id. at p. 1:25-28, 2:4-7.)

For the negligence claim, Plaintiff alleges that she “repeats and incorporates by reference at this point all preceding paragraphs of this complaint.” (FAC, ¶ 58.) Further, Plaintiff alleges that she “suffered harm as a result of Defendants’ negligence, in an amount to be proven at trial, but not less than $2,000,000.” (Id. at ¶ 59.)

The Court finds that Plaintiff fails to allege facts to support all the elements of a negligence cause of action, such as who owed Plaintiff a duty, how that duty was breached, proximate cause, and damages.

The Court SUSTAINS the demurrer with leave to amend as to the thirteenth cause of action.

4. Fifteenth Cause of Action: Negligent Infliction of Emotional Distress

California courts have repeatedly recognized that negligent infliction of emotional distress is not an independent tort, but the tort of negligence such that the traditional elements of duty, breach of duty, causation, and damages apply. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 884.) Therefore, to plead negligent infliction of emotional distress, a plaintiff must establish negligence. (Id. at p. 882.)

Defendants demur to the fifteenth cause of action on the grounds that negligent infliction of emotional distress is not an independent cause of action. (Demurrer, p. 7:17-18.)

In opposition, Plaintiff states that she “is willing to concur that the claim for negligent infliction of emotional distress rises or falls based on the negligence claim.” (Opp., p. 1:21-22.)

As explained above, the Court finds that the negligence cause of action is insufficiently plead, thus the negligent infliction of emotional distress is insufficiently plead as well.

The Court SUSTAINS the demurrer without leave to amend as to the fifteenth cause of action.



Case Number: *******9272    Hearing Date: May 14, 2021    Dept: 34

SUBJECT: (1) Motion to Compel Compliance

Moving Party: Defendant MII Strategy, Inc.

Resp. Party: Plaintiff Wenjuan Luo

(1) Motion to Deem the Truth of the Matters Admitted in the Requests for Admission

Moving Party: Defendant MII Strategy, Inc.

Resp. Party: Plaintiff Wenjuan Luo

The motion to compel compliance is GRANTED.

The motion to deem the truth of the matters admitted in the requests for admission is GRANTED.

The Court GRANTS Defendant’s requests for sanctions against Plaintiff in the amount of $1,770.00.

BACKGROUND:

This action arises out of allegations from Plaintiff Wenjuan Luo that her employer, Defendants Chenlong Tan and MII Strategy, Inc., initiated a pattern and practice of sexual harassment and failure to properly compensate Plaintiff during Plaintiff’s employment with Defendants.

On August 15, 2019, Plaintiff Wenjuan Luo commenced this action and on May 13, 2020, filed a first amended complaint (“FAC”)

against Defendants Chenlong Tan (aka Lawrence Tan) and MII Strategy, Inc.

Plaintiff alleges causes of action for (1) discrimination based on sex harassment; (2) retaliation for reporting and/or not submitting to sex harassment; (3) fraud by intentional misrepresentation; (4) fraud by concealment; (5) failure to provide required meal periods; (6) failure to provide required rest breaks; (7) failure to pay overtime wages; (8) failure to pay wages due to a terminated employee; (9) failure to maintain mandatory employment records; (10) failure to provide adequate wage statements; (11) violation of the Business and Professions Code; (12) breach of contract; (13) negligence; (14) intentional infliction of emotional distress; and (15) negligent infliction of emotional distress.

On August 26, 2020, the Court overruled Defendants’ demurrer to the first and second causes of action; sustained with leave to amend as to the thirteenth cause of action; and sustained without leave to amend as to the fifteenth cause of action.

On April 20, 2021, Defendant MII Strategy, Inc. filed the instant motions (1) to compel compliance in regard to the request for production of documents; and (2) to deem the truth of all matters admitted in requests for admission.

ANALYSIS:

I. Motion to Compel Compliance

A. Legal Standard

Code of Civil Procedure section 2031.320, subdivision (a) states:

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., ; 2031.320, subd. (a).)

The Court shall impose monetary sanctions against a party who unsuccessfully opposes a motion to compel compliance. (Cal. Code Civ. Proc. ; 2031.320, subd. (b)

B. Discussion

1. Compelling Compliance

Defendant MII Strategy, Inc. moves for an order compelling compliance in accordance with Plaintiff’s responses to Request for Production of Documents, Set One. (Compliance Motion, p. 1:23-25.) Defendant brings this motion “on the grounds that Plaintiff repeatedly failed to produce any documents in accordance with her discovery responses that she will produce all documents within its possession, custody, and control.” (Id. at p. 2:1-3.)

In opposition, Plaintiff acknowledges that “the current motion is undoubtedly meritorious.” (Compliance Opp., p. 1:25.)

The Court finds that Plaintiff conceded that she failed to comply with her statement by producing documents responsive to Request for Production of Documents, Set One.

Therefore, the Court GRANTS Defendant’s motion to compel Plaintiff to comply with her statement to produce responsive documents to Request for Production of Documents, Set One.

2. Sanctions

Defendant moves for monetary sanctions against Plaintiff in the amount of $1,325.00. (Compliance Motion, p. 1:25-26.) Defendant incurred $60.00 for the motion filing fee and $15.00 for the LA Court Connect fee. (Phan Decl., ¶14.) Defendant’s counsel’s hourly rate is $250.00 and Defendant’s counsel:

· Spent 2.5 hours on the motion;

· Estimates spending 0.5 hours on the opposition;

· Estimates spending 1.5 hours on the reply; and

· Estimates spending 0.5 hours at the hearing. (Id. at ¶¶ 14-17.)

In opposition, Plaintiff argues that “there is no need for a reply brief, such that sanctions should be reduced to an amount under $1000.” (Compliance Opp., p. 1:26-27.)

Defendant is entitled to sanctions against Plaintiff and her counsel because Defendant is successful in bringing this motion. 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 $960.00.

The Court GRANTS Defendant’s request for sanctions against Plaintiff in the amount of $960.00.

II. Motion to Deem Requests for Admission Admitted

A. Legal Standard

California Code of Civil Procedure requires a response from the party to whom the request for admissions is directed within 30 days after service of the request for admissions. (Code Civ. Proc., ; 2033.250(a).) If the party fails to serve a timely response, “the party to whom the requests for admission are directed waives any objection to the requests.” (Code Civ. Proc., ; 2033.280(a).) The requesting party may then “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for monetary sanction under Chapter 7.” (Code Civ. Proc., ; 2033.280(b).)

A motion to deem admitted requests for admissions lies based upon a showing of failure to respond timely. (Code Civ. Proc., ;2033.280(b); Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2020) ¶ 8:1370.) Requests for admissions must be deemed admitted where no responses in substantial compliance were served before the hearing. (Code Civ. Proc., ;2033.280(c); Edmon & Karnow, supra, at ¶ 8:1375.)

The Civil Discovery Act requires discovery responses to be signed under oath. (Code Civ. Proc., ;; 2030.210(a), 2030.250(a), 2031.210(a), 2031.250(a), 2033.210(a) and 2033.240(a).) The purpose of the verification is to clearly set forth the facts in the response. (Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657.) The responses must be based on personal knowledge. (Code Civ. Proc., ; 2030.220(c).) Further, “[u]nsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)

A court will deem requests admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., ; 2033.280(c).)

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., ; 2033.280(c).)

B. Discussion

1. Requests for Admission

 

Defendant moves for an order deeming the truth of all matters admitted in its Requests for Admission, Set One that was propounded to Plaintiff. (RFA Motion, pp. 1:26-2:1.) Defendant brings this motion “on the ground that Plaintiff failed to serve verified responses to Defendant’s RFA, Set 1.” (Id. at p. 2:4-5.)

In opposition, Plaintiff acknowledges that she “did neglect to include verifications with the RFA responses.” (RFA Opp., p. 1:19-20.) Plaintiff urges the denial of this motion upon filing and service of code-compliant responses in advance of the hearing. (Id. at p. 1:26-28.)

In reply, Defendant argues that it “has not received any verifications to Plaintiff’s discovery responses as of the date of this filing.” (RFA Reply, p. 2:6-7.)

The Court finds that Defendant properly served its discovery requests, the time to respond has expired, and Plaintiff has failed to provide timely responses, as “[u]nsworn responses are tantamount to no responses at all.” (Appleton, supra, 206 Cal.App.3d at p. 636.) Plaintiff has not demonstrated that verifications have been served.

This Court does not understand why Plaintiff has not provided the required responses. “[W]oe betide the party who fails to serve responses before the hearing. In that instance, the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party. One might call it ‘two strikes and you're out’ as applied to civil procedure.” (Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395–396, disapproved on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983.)

The Court GRANTS Defendant’s motion to deem the truth of all matters admitted in requests for admission.

2. Sanctions

Defendant requests that the Court impose monetary sanctions against Plaintiff in the amount of $1,200.00. (RFA Motion, p. 2:1-2.) Defendant incurred $60.00 for the motion filing fee and $15.00 for the LA Court Connect fee. (Phan Decl., ¶ 11.) Defendant’s counsel’s hourly rate is $250.00 and Defendant’s counsel:

· Spent 2 hours on the motion;

· Estimates spending 0.5 hours on the opposition;

· Estimates spending 1.5 hours on the reply; and

· Estimates spending 0.5 hours at the hearing. (Id. at ¶¶ 11-14.)

In opposition, Plaintiff argues that “a reply brief is not necessary here, and that sanctions should therefor[e] be capped at about $800.” (RFA Opp., p. 2:1-2.)

Defendant is entitled to sanctions against Plaintiff and her counsel because Defendant is successful in bringing this motion. 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 $810.00.

The Court GRANTS Defendant’s request for sanctions against Plaintiff in the amount of $810.00.



Case Number: *******9272    Hearing Date: May 28, 2021    Dept: 34

SUBJECT: Motion to Compel Responses to Special Interrogatories

Moving Party: Defendant MII Strategy, Inc.

Resp. Party: Plaintiff Wenjuan Luo

The motion to compel responses to special interrogatories is DENIED.

The Court DENIES Defendant’s request for sanctions.

The Court GRANTS Plaintiff’s request for sanctions against Defendant MII Strategy, Inc. in the amount of $1,355.07.

BACKGROUND:

This action arises out of allegations from Plaintiff Wenjuan Luo that her employer, Defendants Chenlong Tan and MII Strategy, Inc., initiated a pattern and practice of sexual harassment and failure to properly compensate Plaintiff during Plaintiff’s employment with Defendants.

On August 15, 2019, Plaintiff Wenjuan Luo commenced this action and on May 13, 2020, filed a first amended complaint (“FAC”)

against Defendants Chenlong Tan (aka Lawrence Tan) and MII Strategy, Inc.

Plaintiff alleges causes of action for (1) discrimination based on sex harassment; (2) retaliation for reporting and/or not submitting to sex harassment; (3) fraud by intentional misrepresentation; (4) fraud by concealment; (5) failure to provide required meal periods; (6) failure to provide required rest breaks; (7) failure to pay overtime wages; (8) failure to pay wages due to a terminated employee; (9) failure to maintain mandatory employment records; (10) failure to provide adequate wage statements; (11) violation of the Business and Professions Code; (12) breach of contract; (13) negligence; (14) intentional infliction of emotional distress; and (15) negligent infliction of emotional distress.

On August 26, 2020, the Court overruled Defendants’ demurrer to the first and second causes of action; sustained with leave to amend as to the thirteenth cause of action; and sustained without leave to amend as to the fifteenth cause of action.

On May 14, 2021, the Court granted Defendant MII Strategy, Inc.’s motions (1) to compel compliance in regard to the request for production of documents; and (2) to deem the truth of all matters admitted in requests for admission. The Court also granted Defendant’s request for sanctions in the amount of $1,770.00.

Before the Court is Defendant MII Strategy, Inc.’s motion to compel Plaintiff’s responses to the Special Interrogatories, Set One and for monetary sanctions against Plaintiff in the amount of $1,325.00, filed on April 22, 2021.

ANALYSIS:

I. Motion to Compel Responses to Special Interrogatories

A. Legal Standard

California Code of Civil Procedure requires a response from the party to whom special interrogatories are propounded within 30 days after service of the requests, unless the time is extended by agreement of the parties. (Code Civ. Proc., ;; 2030.260(a), 2030.270(a).) If a party fails to serve timely responses, "the party making the demand may move for an order compelling response to the demand.” (Code Civ. Proc. ; 2030.300(b).) By failing to respond, the offending party waives any objection to the demand. (Code Civ. Proc. ; 2030.290(a).)

For a motion to compel initial discovery responses, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, "[o]nce [a party] 'fail[ed] to serve a timely response,' the trial court had authority to grant [opposing party's] motion to compel responses." (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

The Civil Discovery Act requires discovery responses to be signed under oath unless the response contains only objections. (Code Civ. Proc., ; 2030.250, subd. (a).) The attorney for the responding party is required to sign any responses that contain an objection. (Code Civ. Proc., ; 2030.250, subd. (c).)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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., ; 2030.290, subd. (c).)

B. Discussion

1. Special Interrogatories

Pursuant to Code of Civil procedure section 2030.290, Defendant moves to compel Plaintiff to provide verified responses to its Special Interrogatories (“SPROG”), Set One “based on the grounds that Plaintiff repeatedly failed to produce any documents in accordance with her discovery responses that she will produce all documents within its possession, custody, and control.” (Motion, pp. 1:22-2:3.)

Defendant states that the “parties agreed to extend Plaintiff’s deadline to serve responses to September 1, 2020.” (Id. at p. 3:6-7, citing Phan Decl., ¶ 4.) Defendant asserts that “on or around September 1, 2020, Plaintiff served unverified responses to Defendant’s SPROG, Set 1.” (Id. at p. 3:7-8.) Defendant explains that “the unverified responses contained objections and the statement ‘definitions of YOU and YOUR include persons (e.g. investigators) who had no role in connection with the subject matter of the request.” (Id. at p. 3:8-10, citing Phan Decl., ¶ 5.) Defendant argues that “as of today’s date, no verified responses have been served on Defendant.” (Id. at p. 3:13-14, citing Phan Decl., ¶ 11.)

In opposition, Plaintiff argues that he “responded to the subject discovery with ‘all objections’” and that “the objections were meritorious because the definitions used in the interrogatories rendered each request objectionable.” (Opp., p. 2:8-10.) Plaintiff maintains that this motion should be denied because (1) it is untimely; (2) it omits from the title that it is seeking further responses to discovery, following the objections that were served on September 1, 2020; (3) Defendant fails to file the mandatory separate statement; and (4) the notice of motion fails to provide the required statutory notice as to the special interrogatories, referring instead to documents that have not been produced. (Id. at p. 2:14-24.)

Defendant brings a motion to compel initial responses, not further responses. (See Motion, pp. 1:22-2:1, citing Code Civ. Proc., ; 2030.290.) Therefore, it was not necessary for Defendant to file a separate statement. (Cal. Rules of Court, rule 3.1345(a)(2).)

However, the Court finds that Defendant’s motion to compel initial responses must be denied. It was proper for Plaintiff to serve unverified responses, as his responses to the special interrogatories were objections only. (Code Civ. Proc., ; 2030.250, subd. (a); Phan Decl., Ex. B.) Further, Plaintiff’s counsel signed the responses that contained objections only. (Code Civ. Proc., ; 2030.250, subd. (c); Phan Decl., Ex. B, p. 15.)

Because Plaintiff provided proper and timely responses, the Court DENIES Defendant’s motion to compel responses to the special interrogatories.

2. Sanctions

Defendant moves for monetary sanctions against Plaintiff in the amount of $1,325.00. (Motion, p. 1:24-25.) Because Defendant is unsuccessful in bringing this motion, Defendant’s request for sanctions is DENIED.

In opposition, Plaintiff requests sanctions against Defendant in the amount of $1,355.07 for filing an unmeritorious motion. (Opp., p. 2:25-26.) Plaintiff’s counsel declares that her hourly rate is $395.00, spent 3.40 hours on the opposition, and that Plaintiff has incurred $12.07 in filing fees. (Shikai Decl., ¶¶ 2-3.)

The Court finds that Plaintiff is entitled to sanctions against Defendant, as Plaintiff was successful in opposing this motion. The Court GRANTS Plaintiff’s request for sanctions against Defendant in the amount of $1,355.07.