This case was last updated from Los Angeles County Superior Courts on 06/06/2019 at 04:24:59 (UTC).

WILD CHANG ET AL VS FARMERS INSURANCE COMPANY INC ET AL

Case Summary

On 02/16/2017 WILD CHANG filed a Contract - Insurance lawsuit against FARMERS INSURANCE COMPANY INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MARC MARMARO. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0876

  • Filing Date:

    02/16/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Insurance

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MARC MARMARO

 

Party Details

Plaintiffs and Petitioners

CHANG WILD

FARMERS INSURANCE COMPANY INC

LO KENNETH

Respondents and Defendants

STACY CHEN INSURANCE AGENCY

CHERN STACY

DOES 1 TO 100

FIRE INSURANCE EXCHANGE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

FITZGERALD PAUL D. ESQ.

SAFAIE MAJID

Respondent and Defendant Attorney

SCHER GREGORY B. ESQ.

 

Court Documents

Minute Order

10/15/2018: Minute Order

Ex Parte Application

10/15/2018: Ex Parte Application

Substitution of Attorney

10/31/2018: Substitution of Attorney

Substitution of Attorney

10/31/2018: Substitution of Attorney

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/22/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice

1/31/2019: Notice

REQUEST FOR DISMISSAL

1/26/2018: REQUEST FOR DISMISSAL

DEFENDANT'S ANSWER TO COMPLAINT

1/26/2018: DEFENDANT'S ANSWER TO COMPLAINT

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

COMPLAINT AGAINST DEFENDANTS FOR DAMAGES FOR: 1. TORTIOUS BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING; ETC

2/16/2017: COMPLAINT AGAINST DEFENDANTS FOR DAMAGES FOR: 1. TORTIOUS BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING; ETC

SUMMONS

2/16/2017: SUMMONS

FIRST AMENDED COMPLAINT AGAINST DEFENDANTS FOR DAMAGES FOR: 1. TORTIOUS BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING, ETCX

4/14/2017: FIRST AMENDED COMPLAINT AGAINST DEFENDANTS FOR DAMAGES FOR: 1. TORTIOUS BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING, ETCX

NOTICE OF CASE MANAGEMENT CONFERENCE

4/18/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

ORDER TO SHOW CAUSE HEARING

4/18/2017: ORDER TO SHOW CAUSE HEARING

NOTICE OF CASE MANAGEMENT CONFERENCE

4/18/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

SUBSTITUTION OF ATTORNEY

5/17/2017: SUBSTITUTION OF ATTORNEY

SUBSTITUTION OF ATTORNEY

5/17/2017: SUBSTITUTION OF ATTORNEY

FIRST AMENDED SUMMONS

5/17/2017: FIRST AMENDED SUMMONS

18 More Documents Available

 

Docket Entries

  • 02/05/2019
  • Docketat 10:00 AM in Department 37; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 01/31/2019
  • DocketNotice (of Case Reassignment); Filed by Wild Chang (Plaintiff); Kenneth Lo (Plaintiff)

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  • 01/28/2019
  • Docketat 08:34 AM in Department 37; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 01/22/2019
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 10/31/2018
  • DocketSubstitution of Attorney; Filed by Wild Chang (Plaintiff)

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  • 10/31/2018
  • DocketSubstitution of Attorney; Filed by Kenneth Lo (Plaintiff)

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  • 10/15/2018
  • Docketat 08:30 AM in Department 37; Ex-Parte Proceedings

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  • 10/15/2018
  • DocketEx Parte Application (and Application for an Order); Filed by Wild Chang (Plaintiff); Kenneth Lo (Plaintiff)

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  • 10/15/2018
  • DocketMinute Order ((Ex-Parte Proceedings)); Filed by Clerk

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  • 03/27/2018
  • Docketat 08:30 AM in Department 37; Unknown Event Type

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36 More Docket Entries
  • 04/18/2017
  • DocketORDER TO SHOW CAUSE HEARING

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  • 04/18/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/18/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/18/2017
  • DocketORDER TO SHOW CAUSE HEARING

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  • 04/18/2017
  • DocketOSC-RE Other (Miscellaneous); Filed by Clerk

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  • 04/14/2017
  • DocketFirst Amended Complaint; Filed by Wild Chang (Plaintiff); Kenneth Lo (Plaintiff)

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  • 04/14/2017
  • DocketFIRST AMENDED COMPLAINT AGAINST DEFENDANTS FOR DAMAGES FOR: 1. TORTIOUS BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING, ETCX

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  • 02/16/2017
  • DocketComplaint; Filed by Wild Chang (Plaintiff); Kenneth Lo (Plaintiff); Farmers Insurance Company, Inc (Plaintiff)

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  • 02/16/2017
  • DocketSUMMONS

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  • 02/16/2017
  • DocketCOMPLAINT AGAINST DEFENDANTS FOR DAMAGES FOR: 1. TORTIOUS BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING; ETC

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Tentative Rulings

Case Number: ****0876 Hearing Date: April 20, 2022 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

WILD CHANG, et al,

Plaintiffs,

vs.

FARMERS INSURANCE COMPANY, et al.,

Defendants.

Case No.:

****0876 c/w 21STCV03453

Hearing Date:

April 20, 2022

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

MOTION FOR TERMINATING SANCTIONS OR, IN THE ALTERNATIVE, EVIDENTIARY SANCTIONS AND MONETARY SANCTIONS AND REDUCTION OF ALL MONETARY SANCTIONS INTO A JUDGMENT

AND RELATED CROSS-ACTION

Background

On February 16, 2017, Plaintiffs Wild Chang (“Chang”) and Kenneth Lo (“Lo”) filed the lead action against Defendants Farmers Insurance Company, Inc. (“Farmers”), Fire Insurance Exchange (“FIE”), Stacy Chern Insurance Agency (“Chern Insurance”), and Stacy Chern (“Chern”). On January 28, 2021, Chang, Lo, and Wild Chang, Jr. (“Chang, Jr.”) (collectively, “Plaintiffs”) filed the second action against Farmers, FIE, Chern, and Woolls Peer Dollinger & Scher (“WPDS”). The two cases were subsequently consolidated, and the operative Third Amended Complaint (“TAC”) was deemed filed on July 22, 2021 in the consolidated cases.

In the TAC, Plaintiffs assert causes of action for (1) fraud, (2) tortious breach of implied covenant of good faith and fair dealing, (3) breach of contract, (4) unfair business practices, (5) professional negligence, and (6) emotional distress, arising out of an insurance coverage dispute. Defendants demurred to causes of action in the TAC, and on October 22, 2021, the Court issued an order sustaining the demurrer. The claims at issue following rulings on Defendants’ amended demurrers and special motion to strike are breach of contract and breach of the covenant of good faith and fair dealing against FIE only, and professional negligence against Chern only.

FIE served the discovery requests that are the subject of this motion on May 8, 2019, August 19, 2019, and May 1, 2020. (Zapf Decl., 3.) On June 2, 2020, defendants filed eight motions to compel discovery (propounded May 8, 2019 and August 19, 2019). (Zapf Decl., 3.) On October 28, 2020, Department 37 of this Court ordered Plaintiffs to provide verified responses and supplemental responses to a number of discovery requests within thirty days and pay monetary sanctions in the total amount of $2,748. (Zapf Decl., 4, Ex. A.) The Court thereafter modified its Order, via ex parte application and extended Plaintiffs’ deadline to pay the sanctions granted on October 28, 2020 to March 31, 2021. (Zapf Decl., 4.)

On January 10, 2021, Plaintiffs served tardy further responses that consisted solely of objections. (Zapf Decl., 5.) Around this same time, Plaintiffs served responses to discovery originally propounded on May 1, 2020, that consisted solely of objections, which were six months late. (Zapf Decl., 6.)

Thereafter, Defendants attend four separate hearings on February 25, 2021, February 26, 2021, March 1, 2021 and March 4, 2021 pertaining to eight motions to compel. (Zapf Decl., 8.) On these dates, the Court ordered Plaintiffs to provide verified supplemental responses without objection to a number of discovery requests and ordered that Plaintiffs pay a total of $4,635.20 in monetary sanctions. (Zapf Decl., 8, Ex. B.) Notwithstanding the court orders dated February 25, 2021, February 26, 2021, March 1, 2021, and March 4, 2021 requiring Plaintiffs to serve supplemental responses to discovery within 30 days, no additional responses have been served, nor have any sanctions been paid. (Zapf Decl., 9.) Following transfer to Department 50, the parties conducted an IDC with the Court on September 9, 2021, which was unsuccessful in resolving the parties’ dispute. (Zapf Decl., 11.) Plaintiffs have still not provided any further responses to the discovery that they were ordered to supplement over a year ago, despite efforts by defendants. (Zapf Decl., 12.)

FIE and Chern (jointly, “Defendants”) now move for an order for terminating sanctions, striking the operative TAC and entering judgment against Plaintiffs. Alternatively, Defendants seek evidentiary sanctions, monetary sanctions, and a reduction of all monetary sanctions into a judgment. Plaintiffs oppose.

Legal Standard

Once a motion to compel further responses is granted, continued failure to respond or inadequate responses may result in more severe sanctions. (See e.g., Code Civ. Proc., 2031.310(i).) Disobeying a court order to provide discovery is a misuse of the discovery process. (Code Civ. Proc., 2023.010(g).) There are a broad range of sanctions available against anyone engaging in conduct that is a misuse of the discovery process, including the issuance of monetary, evidentiary, contempt, and terminating sanctions. (Code Civ. Proc., 2023.030.)

The Court may impose a terminating sanction by an order striking a pleading, dismissing any part of an action, or rendering a judgment by default. (Code Civ. Proc., 2023.030(d).) “[T]he sanctioned party’s history as a repeat offender is not only relevant, but also significant, in deciding whether to impose terminating sanctions.” (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1106.) “A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)

Discussion

Defendants argue that terminating sanctions are warranted in this case. As set forth above, Defendants provide evidence that after being ordered on October 28, 2020 to serve supplemental responses within 30 days, Plaintiffs served tardy responses that consisted solely of objections. (Zapf Decl. 5.) Defendants also note that by refusing to obey the October 28, 2020 order, and by refusing to respond to other long-outstanding discovery, Defendants were required to bring eight additional motions to compel. Defendants assert that Plaintiffs have disregarded all the Court’s orders requiring supplemental responses be served and all of Defendants efforts to request compliance. (Zapf Decl. 9-12.) Defendants assert that Plaintiffs refusal to comply with five Court orders to respond to discovery and multiple Court orders to pay sanctions show that less severe sanctions will not produce compliance with the discovery rules.

As an initial matter, Plaintiffs assert that they have filed five petitions for writs of mandamus to vacate the subject orders dated October 28, 2020, February 25, 2021, February 26, 2021, dated March 1, 2021, and March 4, 2021, and argue that pending the final resolutions, those orders must be moot. (Opp’n at p. 3:1-6.) Defendants’ note that Plaintiffs’ opposition cites no support for their position that the filing of the writs moots the orders. In addition, Defendants indicate that they “were first served with these Writs on April 7, 2022. Defendants were thereafter also served with rejection notices stating the Court of Appeal had rejected all five filings.” (Reply at p. 2:21-23.) Defendants note that “[i]f an appeal from the court’s order is perfected, by statute the trial court generally loses subject matter jurisdiction over any matter affected by the appeal. This automatic stay provision does not, however, apply to writ proceedings. Statutes governing petitions for writs of mandate contain no analogous automatic stay provision.(Paul Blanco's Good Car Co. Auto Group v. Superior Court (2020) 56 Cal.App.5th 86, 97–98 [internal citations omitted, emphasis in original].) Thus, the Court will proceed with considering the merits of Defendants’ motion.

In their opposition, Plaintiffs cite to Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615, where the Court of Appeal found that “a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.” However, Defendants seek terminating sanctions here for both Plaintiffs’ failure to pay monetary sanctions and for Plaintiffs’ failure to comply with orders that they provide discovery responses. In any event, the Court finds that it is appropriate to issue evidentiary sanctions at this time in order to produce Plaintiffs’ compliance with the discovery rules. Defendants cite to Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228, where the Court of Appeal found that “[w]here a party has refused to supply information relevant to a particular claim, an order precluding that claim is an appropriate sanction….Here the court imposed an issue-preclusion sanction against [plaintiff] for failure to produce his personal financial records. As in Caryl Richards, supra, this sanction put the demanding party in the position in which it would have been had that discovery been entirely favorable, i.e., the documents would have shown [plaintiff] suffered no economic loss. In choosing this sanction, the court was attempting to tailor the sanction to the harm caused by the withheld discovery.” The Sauer Court noted that “[i]mposition of a lesser sanction would have allowed [plaintiff] to benefit from his delay by forcing [the real party in interest] into the unfavorable position of proceeding to trial ill-prepared to meet [plaintiff’s] $1.5 million damage claim…[plaintiff’s] failure to produce the requested documents was not a mere technical violation of a discovery rule. Thus, the court was justified in finding [real party in interest] was prejudiced by [plaintiff’s] noncompliance with the discovery order. Moreover, in addition to [real party in interest’s] right to obtain the proper objects of discovery, what is at stake here is the integrity of the discovery process and the interest of the court in compelling obedience to its judgments, orders and process. The trial court should not exercise its discretion to reward the type of brinkmanship displayed by [plaintiff] here.” (Id. at p. 230 [internal quotations and citations omitted].)

Defendants seek (1) evidentiary sanctions precluding evidence that FIE or Chern breached their duties to Plaintiffs, (2) evidentiary sanctions precluding evidence of tort damages, and (3) evidentiary sanctions precluding evidence regarding any work that has been or needs to be completed on the property. Defendants indicate that in their Special Interrogatories (Set 4) propounded on Plaintiffs on May 1, 2020, Defendants sought the facts, witnesses and evidence in support of Plaintiffs contentions that that Defendants breached their duties to Plaintiffs. (Zapf Decl., 13.) In Defendants’ Request for Production (Set 4) also propounded on Plaintiffs on May 1, 2020, Defendants sought Plaintiffs’ supporting evidence of alleged breach. (Zapf Decl., 13.) In Defendants Special Interrogatories (Set 4) propounded on Plaintiffs on May 1, 2020, Defendants sought the facts, witnesses, and evidence in support of Plaintiffs’ contentions that Defendants engaged in conduct that was willful, fraudulent or oppressive and in support of Plaintiffs’ contentions that Plaintiffs are entitled to punitive damages. (Zapf Decl., 14.) In Defendants’ Request for Production (Set 4) also propounded on Plaintiffs on May 1, 2020, Defendants sought any evidence in support of punitive damages. (Zapf Decl., 14.) Lastly, Defendants indicate that in their Special Interrogatories (Set 2) propounded on Plaintiffs on May 8, 2019, Defendants sought information regarding work Plaintiffs contend various third-parties completed on the property at issue (e.g. for Plaintiffs to describe the work completed, identify every room and/or area of the property work was performed, what item(s) were fixed and/or repaired and the date(s) said work was completed). (Zapf Decl., 15.) In this same set, Defendants also sought writings that evidence the repairs still needed at the property, as Plaintiffs have not distinguished between repairs it contends have already been completed versus repairs still needed. (Zapf Decl., 15.) As set forth above, Defendants provide evidence that Plaintiffs have still not provided any further responses to the discovery that they were ordered to supplement over a year ago, despite efforts by defendants. (Zapf Decl., 12.) Defendants argue that “[m]onetary sanctions will not cure the harm suffered by Defendants. Defendants cannot be

required to prepare for trial with their hands tied behind their backs.” (Mot. at p. 11:25-26.)

Plaintiffs’ opposition does not address the Sauer case or the evidentiary sanctions requested by Defendants. Plaintiffs assert that “[a]fter discovery of the Fraud under the Modus Operandi by Defendants, Plaintiffs simply could not respond Defendants’ further discovery requests that were designed to frame that Plaintiffs had purchased the Membership in FIRE EXCHANGE, not the Insurance from FARMERS INSURANCE on April 29, 2014.” (Decl. of

Wild Chang, Kenneth Lo and Wild Chang, Jr., 4.) The Court does not find that this is an adequate explanation for Plaintiffs’ failure to provide discovery responses in accordance with the Court’s orders and finds that the evidentiary sanctions requested by Defendants are warranted.

The Court also finds that monetary sanctions are warranted for Plaintiff’s failure to comply with the Court’s October 28, 2020, February 25, 2021, February 26, 2021, March 1, 2021, and March 4, 2021 orders. As set forth above, a monetary sanction may be imposed against one engaging in the misuse of the discovery process. (Code Civ. Proc., 2023.030(a).) Defendants seek monetary sanctions against Plaintiffs in the amount of $2,279 in connection with Defendants’ work on the instant motion. (Zapf Decl., 16.) The Court finds that this amount is reasonable.

Lastly, the Court notes that Defendants “seek an order reducing the total amount of sanctions due to a monetary judgment, so Defendants can collect upon the $7,383.20 previously outstanding, plus $2,279 for the present motion, since Plaintiffs have shown they have no intent to actually pay the monetary sanctions.” (Mot. at p. 13:6-9.) However, because Defendants have not cited any legal authority in support of this request, the Court declines to issue such a judgment.

Conclusion

Based on the foregoing, Defendants’ motion is granted in part and denied in part. The Court grants Defendants’ request for evidentiary sanctions limiting what Plaintiffs can introduce at trial (i.e., evidentiary sanctions precluding (1) evidence that FIE or Chern breached their duties to Plaintiffs, (2) evidence of tort damages, and (3) evidence regarding any work that has been or needs to be completed on the property. The Court also grants Defendants’ request for monetary

sanctions and orders Plaintiffs to pay $2,279 to Defendants within 30 days of the date of this Order. Defendants’ motion is otherwise denied.

Defendants are ordered to provide notice of this Order.

DATED: April 20, 2022

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court



Case Number: ****0876 Hearing Date: March 17, 2022 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

WILD CHANG, et al.,

Plaintiffs,

vs.

FARMERS INSURANCE COMPANY, et al.,

Defendants.

Case No.:

****0876 c/w 21STCV03453

Hearing Date:

March 17, 2022

Hearing Time:

2:00 p.m.

[TENTATIVE] ORDER RE:

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

On February 16, 2017, Plaintiffs Wild Chang (“Chang”) and Kenneth Lo (“Lo”) filed the lead action against Defendants Farmers Insurance Company, Inc. (“Farmers”), Fire Insurance Exchange (“FIE”), Stacy Chern Insurance Agency (“Chern Insurance”), and Stacy Chern (“Chern”). On January 28, 2021, Chang, Lo, and Wild Chang, Jr. (“Chang, Jr.”) (collectively, “Plaintiffs”) filed the second action against Farmers, FIE, Chern, and Woolls Peer Dollinger & Scher (“WPDS”). The two cases were subsequently consolidated, and the operative Third Amended Complaint (“TAC”) was deemed filed on July 22, 2021 in the consolidated cases.

In the TAC, Plaintiffs assert causes of action for (1) fraud, (2) tortious breach of implied covenant of good faith and fair dealing, (3) breach of contract, (4) unfair business practices, (5) professional negligence, and (6) emotional distress, arising out of an insurance coverage dispute. Defendants demurred to all causes of action in the TAC, and on October 22, 2021, the Court issued an order sustaining the demurrer in its entirety. The claims at issue following rulings on Defendants’ amended demurrers and special motion to strike are breach of contract and breach of the covenant of good faith and fair dealing against FIE only, and professional negligence against Chern only.

Plaintiffs now move for an order granting summary judgment in Plaintiffs’ favor. No opposition to the motion was filed.

Procedural Issues

As an initial matter, the arguments in Plaintiffs’ motion largely appear to concern Plaintiffs’ allegations of fraud. (See Mot. at p. 5:21-8:28; 10:16-13:14; 15:1-15:27.) However, on October 14, 2021, the Court issued an order granting in part Defendants’ amended special motion to strike complaint pursuant Code of Civil Procedure section 425.16, ruling that all causes of action against WPDS are ordered stricken. In addition, on October 22, 2021, the Court issued an order on Defendants’ amended demurrers to the TAC, which provides, inter alia, that Defendants’ first cause of action for fraud is sustained without leave to amend.

Moreover, the Court notes that Plaintiffs filed “Exhibits 1-18 to Plaintiffs’ Motion for Summary Judgment and Separate Statement” and “Exhibits 19-43 to Plaintiffs’ Motion for Summary Judgment and Separate Statement.” However, “[t]o authenticate a writing, its proponent must introduce ‘evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is....’ (Evid. Code, 1400; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 524–526, 67 Cal.Rptr. 761, 439 P.2d 889 [a document is not presumed to be what it purports to be].)” (O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, 249, disapproved of on other grounds by Flanagan v. Flanagan (2002) 27 Cal.4th 766 [41 P.3d 575].) The Court finds that Plaintiffs have not properly authenticated the exhibits filed in connection with the motion.

Based on the foregoing, Plaintiffs’ motion is denied without prejudice. Plaintiffs are ordered to provide notice of this ruling.

DATED: March 17, 2022

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court



Case Number: ****0876 Hearing Date: March 10, 2022 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

WILD CHANG, et al.,

Plaintiffs,

vs.

FARMERS INSURANCE COMPANY, et al.,

Defendants.

Case No.:

****0876 c/w 21STCV03453

Hearing Date:

March 10, 2022

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFFS’MOTION FOR AN ORDER TO PROCEED CASE UNDER CONSOLIDATED COMPLAINT, VACATING THE INFORMAL DISCOVERY CONFERENCES BY WOLLS PEER DOLLINGER & SCHER for FIRE INSURANCE EXCHANGE DUE TO INCOMPABILITY WITH THE CONSOLIDATION AND THE CONSOLIDATED THIRD AMENDED COMPLAINT

Background

On February 16, 2017, Plaintiffs Wild Chang (“Chang”) and Kenneth Lo (“Lo”) filed the lead action against Defendants Farmers Insurance Company, Inc. (“Farmers”), Fire Insurance Exchange (“FIE”), Stacy Chern Insurance Agency (“Chern Insurance”), and Stacy Chern (“Chern”). On January 28, 2021, Chang, Lo, and Wild Chang, Jr. (“Chang, Jr.”) (collectively, “Plaintiffs”) filed the second action against Farmers, FIE, Chern, and Woolls Peer Dollinger & Scher (“WPDS”). The two cases were subsequently consolidated, and the operative Third Amended Complaint (“TAC”) was deemed filed on July 22, 2021 in the consolidated cases.

In the TAC, Plaintiffs assert causes of action for (1) fraud, (2) tortious breach of implied covenant of good faith and fair dealing, (3) breach of contract, (4) unfair business practices, (5) professional negligence, and (6) emotional distress, arising out of an insurance coverage dispute. Defendants demurred to all causes of action in the TAC, and on October 22, 2021, the Court issued an order sustaining the demurrer in its entirety. The claims at issue following rulings on Defendants’ amended demurrers and special motion to strike are breach of contract and breach of the covenant of good faith and fair dealing against FIE only, and professional negligence against Chern only.

Plaintiffs now move for an order “to proceed the Consolidated Case under the Consolidated Third Amended Complaint,” “[t]o stay all proceedings initiated or otherwise perverted under the former, pre-discovery of the fraud by FARMERS INSURANCE acting in concert with Woolls Peer Dollinger & Scher (“WDPS”) and other Defendants,” and “[t]o order WPDS, FARMERS INSURANCE, FIRE EXCHANGE and all other Defendants to produce any writing that repudiates the Evidence of Property dated April 29 issued to Plaintiffs, or otherwise proves Plaintiffs’ knowledge, consent or signatures to the alleged conversion.” FIE and Chern (jointly, “Defendants”) oppose.

Discussion

As a threshold matter, the Court agrees with Defendants that it is unclear what Plaintiffs are requesting by the instant motion.

First, Plaintiffs seek “[t]o proceed the Consolidated Case under the Consolidated Third Amended Complaint.” (Mot. at p. 2:5-6.) Per the Court’s August 2, 2021 minute order, “[t]he Court and the parties agreed that the Third Amended Complaint filed in ****0876 is now the operative pleading for the consolidated cases of ****0876 and 21STCV03453, under the number of the lead case ****0876.” Thus, the foregoing cases are already consolidated.

Second, Plaintiffs seek an order “to stay all proceedings initiated or otherwise perverted under the former, pre-discovery of the fraud by FARMERS INSURANCE acting in concert with Woolls Peer Dollinger & Scher (“WPDS”) and other Defendants.” (Mot. at p. 2:7-9.) Plaintiffs seek this order “to avoid making the court-ordered consolidation into the new Third Amended Complaint…a phantom consolidation.” (Mot. at p. 2:10-13.) The Court is unclear as to what this means or requests. Plaintiffs also seek this order to “avoid making the wrongful rulings as executed by the former court,” and to avoid “WPDS on the one hand, to play the tricks of maliciously prosecuting and maliciously defending ‘untenable’ claims or positions,” and “WPDS, on the other hand, to withhold the groundless and refiled ‘Demurrers’ and Anti-SLAPP Motion.” (Mot. at p. 2:14-25.) The Court is also unclear as to what this means or requests.

In addition, Plaintiffs seek to stay the proceedings “to avoid potential conflicting rulings.” (Mot. at p. 3:3.) As noted by Defendants, it is unclear what Plaintiffs contend may be conflicting.

Third, Plaintiffs seek an order that WPDS, Farmers, FIE, and all other Defendants “produce any writing that repudiates the Evidence of Property dated April 29 issued to Plaintiffs, or otherwise proves Plaintiffs’ knowledge, consent or signatures to the alleged conversion as required by Cal. Corp. Code, Sec. 18035 (a).” (Mot. at p. 3:11-15.) As Defendants note, the proper procedure to obtain documents is to request their production through discovery requests and, if necessary, to file a motion to compel.

Lastly, although not set forth in Plaintiffs’ notice of motion, Plaintiffs request that the Court take IDCs scheduled for September 9, 2021 and September 10, 2021 off-calendar. (Mot. at p. 18:5-8.) This request is moot and unsupported by any legal authority, as Defendants note.

Conclusion

Based on the foregoing, Plaintiffs’ motion is denied. Plaintiffs are ordered to provide notice of this Order.

DATED: March 10, 2022

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court



Case Number: ****0876 Hearing Date: March 8, 2022 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

WILD CHANG, et al.,

Plaintiffs,

vs.

FARMERS INSURANCE COMPANY, et al.,

Defendants.

Case No.:

****0876 c/w 21STCV03453

Hearing Date:

March 8, 2022

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

MOTION FOR PROTECTIVE ORDER AND FOR SANCTIONS;

PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO DEFENDANTS FOR [SIC] SPECIAL INTERROGATORIES (SET TWO) AND REQUEST FOR SANCTIONS;

PLAINTIFF’S MOTION TO COMPEL DEFENDANTS FOR [SIC] REQUESTS FOR ADMISSION (SET TWO) AND

REQUEST FOR SANCTIONS;

PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO DEFENDANTS FOR [SIC] DEMAND FOR PRODUCTION OF DOCUMENTS (SET THREE) AND REQUEST FOR SANCTIONS

Background

On February 16, 2017, Plaintiffs Wild Chang (“Chang”) and Kenneth Lo (“Lo”) filed the lead action against Defendants Farmers Insurance Company, Inc. (“Farmers”), Fire Insurance Exchange (“FIE”), Stacy Chern Insurance Agency (“Chern Insurance”), and Stacy Chern (“Chern”). On January 28, 2021, Chang, Lo, and Wild Chang, Jr. (“Chang, Jr.”) (collectively, “Plaintiffs”) filed the second action against Farmers, FIE, Chern, and Woolls Peer Dollinger & Scher (“WPDS”). The two cases were subsequently consolidated, and the operative Third Amended Complaint (“TAC”) was deemed filed on July 22, 2021 in the consolidated cases.

In the TAC, Plaintiffs assert causes of action for (1) fraud, (2) tortious breach of implied covenant of good faith and fair dealing, (3) breach of contract, (4) unfair business practices, (5) professional negligence, and (6) emotional distress, arising out of an insurance coverage dispute. Defendants demurred to all causes of action in the TAC, and on October 22, 2021, the Court issued an order sustaining the demurrer in its entirety. The claims at issue following rulings on Defendants’ amended demurrers and special motion to strike are breach of contract and breach of the covenant of good faith and fair dealing against FIE only, and professional negligence against Chern only.[1]

On February 22, 2021, Plaintiffs propounded Special Interrogatories (Set Two), Demand for Production of Documents (Set Three), and Request for Admissions (Set Two) on Defendants. (Zapf Decl. in Support of Motion for a Protective Order, 6, 14, 20, Exs. A-C.) FIE, Chern Insurance, and Chern (collectively, “Defendants”) move the Court for an order that Defendants not be required to answer the subject discovery and that Defendants not be required to produce specified documents.[2] Defendants also seek monetary sanctions. Plaintiffs oppose.

Plaintiffs separately move for an order compelling Defendants to provide further responses to Special Interrogatories (Set Two), Demand for Production of Documents (Set Three), and for an order that the truth of each matter specified in the Request for Admissions (Set Two) be deemed admitted. Plaintiffs seek monetary sanctions. Defendants oppose.[3]

Defendants’ Motion for a Protective Order

Evidentiary Objections

The Court rules on Defendants’ evidentiary objections to the Declaration of Wild Chang and Kenneth Lo as follows:

Objection 1: sustained

Discussion

Code of Civil Procedure section 2019.030, subdivision (a)Code of Civil Procedure section 2019.030, subdivision (a)Code of Civil Procedure section 2019.030, subdivision (a)Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_1","Original_string":"Code of Civil Procedure section 2019.030, subdivision (a)","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":3200,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 2019.030","Start":3200,"Story":"wdMainTextStory"},"TOA":"","html":"

Code of Civil Procedure section 2019.030, subdivision (a)

"}" docpart="14028C00ED1047618FDFA574AA7BDC5A">Code of Civil Procedure section 2019.030, subdivision (a) provides that “[t]he court shall restrict the frequency or extent of use of a discovery method provided in Section 2019.010Section 2019.010Section 2019.010SectionOnlyciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_5","Original_string":"Section 2019.010","Page":null,"Parallel":null,"Pattern":"SectionOnly","PinPage":null,"ReadOrderIndex":3365,"Refers_To":null,"ShortText":"Section 2019.010","Start":3365,"Story":"wdMainTextStory"},"TOA":"","html":"

Section 2019.010

"}" docpart="14028C00ED1047618FDFA574AA7BDC5A">Section 2019.010 if it determines…[that] [t]he discovery sought is unreasonably cumulative or duplicative . . . [or] [t]he selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” (Code Civ. Proc., 2019.030(a)Code Civ. Proc., 2019.030(a)Code Civ. Proc., 2019.030(a)Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_2","Original_string":"Code Civ. Proc., 2019.030(a)","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":3685,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 2019.030","Start":3685,"Story":"wdMainTextStory"},"TOA":"","html":"

Code Civ. Proc., 2019.030(a)

"}" docpart="14028C00ED1047618FDFA574AA7BDC5A">Code Civ. Proc., 2019.030(a).) Similarly, the court may limit the scope of discovery if it determines that “the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Code Civ. Proc., 2017.020(a)Code Civ. Proc., 2017.020(a)Code Civ. Proc., 2017.020(a)Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_3","Original_string":"Code Civ. Proc., 2017.020(a)","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":3965,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 2017.020","Start":3965,"Story":"wdMainTextStory"},"TOA":"","html":"

Code Civ. Proc., 2017.020(a)

"}" docpart="14028C00ED1047618FDFA574AA7BDC5A">Code Civ. Proc., 2017.020(a).) A motion for protective order is the appropriate vehicle for the court to make these determinations. (Code Civ. Proc., 2019.030(b), 2017.020(a)Code Civ. Proc., 2019.030(b), 2017.020(a)Code Civ. Proc., 2019.030(b), 2017.020(a)Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_4","Original_string":"Code Civ. Proc., 2019.030(b), 2017.020(a)","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":4100,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 2019.030","Start":4100,"Story":"wdMainTextStory"},"TOA":"","html":"

Code Civ. Proc., 2019.030(b), 2017.020(a)

"}" docpart="14028C00ED1047618FDFA574AA7BDC5A">Code Civ. Proc., 2019.030(b), 2017.020(a).)

Finally, monetary sanctions shall be imposed against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, 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., 2019.030(c), 2017.020(b)Code Civ. Proc., 2019.030(c), 2017.020(b)Code Civ. Proc., 2019.030(c), 2017.020(b)Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_6","Original_string":"Code Civ. Proc., 2019.030(c), 2017.020(b)","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":4471,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 2019.030","Start":4471,"Story":"wdMainTextStory"},"TOA":"","html":"

Code Civ. Proc., 2019.030(c), 2017.020(b)

"}" docpart="14028C00ED1047618FDFA574AA7BDC5A">Code Civ. Proc., 2019.030(c), 2017.020(b).)

  1. Special Interrogatories

Defendants contend that a protective order is necessary here because the Special Interrogatories (Set Two) are excessive, burdensome, and duplicative. Defendants note that the Special Interrogatories (Set Two) consist of 583 additional interrogatories, bringing the total propounded to date to 687. (Zapf Dec., 5, 6; Ex. A.)

Defendants also note that Plaintiffs propounded Special Interrogatories (Set One), Request for Admission (Set One) and Request for Production (Set Two), in July 2019. (Zapf Decl., 3.) Defendants assert that pursuant to this discovery, they produced the claim file, policy, agent file, and underwriting file pertaining to the insureds, consisting of 4,271 pages of documents. (Zapf Decl., 3.) Defendants assert that many of the interrogatories in the Special Interrogatories (Set Two) thus request information equally available to Plaintiffs.

Defendants also assert that many interrogatories seek information and documents that are confidential and/or constitute trade secrets, and that other interrogatories seek information protected by the attorney-client privilege and privacy concerns. (Mot. at pp. 5:22-6:11.)

Defendants contend that to respond to the 583 interrogatories, even if they consist mainly of objections, would require Defendants’ counsel to expend an excessive amount of time. (Zapf Dec., 12.) They assert that if Defendants’ counsel expended only four (4) minutes per response, it would take almost 40 man-hours to respond solely to the interrogatories. (Zapf Dec., 12.)

In the opposition, Plaintiffs’ primary argument is that the discovery requests at issue are relevant, material and nonprivileged. But as Defendants note in the reply, Plaintiffs fail to address the substantive issues raised in Defendants’ moving papers.

Based on the foregoing, the Court agrees with Defendants that the 583 new special interrogatories propounded by Plaintiffs are excessive, unduly burdensome, and unreasonably duplicative.

  1. Demand for Production of Documents

Defendants also assert that a protective order is necessary as to Plaintiffs’ Demand for Production of Documents (Set Three). Defendants note that Plaintiffs have propounded 553 additional requests for production, bring the total to 634. (Zapf Dec., 5, 14; Ex. B.)

Defendants assert that many of the requests seek documents equally available to Plaintiffs, as they already have Defendants’ claim file, policy, agent file, and underwriting file. (Zapf Dec., 3.) Defendants also contend that the definitions in the Demand for Production of Documents complicate the already overbroad, excessive requests. (Mot. at p. 8:6-7; Zapf Dec., 14; Ex. B.)

Defendants note that Plaintiffs request documents relating to the formation and operation of “Farmers” (defined to include “FIE”) with no temporal or specific subject matter limits. (Zapf Dec., 14; Ex. B.) Defendants assert that FIE has approximately 1.4 million policies of insurance in force nationwide. (Giles Dec., 5.) Defendants thus assert that Plaintiffs’ requests are overbroad and seek voluminous information not relevant to the issues at hand.

Defendants also assert that many requests seek information and documents that are confidential and/or constitute trade secrets, and that other requests seek information protected by the attorney-client privilege and privacy concerns. (Mot. at pp. 8:13-9:20.) Defendants also object that many requests are irrelevant.

Defendants assert that responding to the 553 requests would also require Defendants’ counsel to expend an excessive amount of time. (Zapf Dec., 18.) They assert that if Defendants’ counsel expended only four (4) minutes per response, it would take approximately 37 hours to respond to the requests alone, not including the time to search for and produce any relevant documents. (Zapf Dec., 18.)

As was the case with the special interrogatories, Plaintiffs also fail to address the substantive issues raised in Defendants’ moving papers as to the Demand for Production of Documents. The Court agrees with Defendants that the 553 additional requests are excessive, unduly burdensome, and unreasonably duplicative.

  1. Requests for Admission

Defendants note that Plaintiffs have propounded 17 additional requests for admission in their Request for Admission (Set Two). (Zapf Dec., 5, 20; Ex. C.) Defendants assert although they would not normally object to this number of requests alone, the cumulative nature of the discovery concurrently propounded is excessive, overbroad and burdensome considering the total number of hours these responses are expected to entail. The Court does not agree that 17 additional request for admission are excessive.

Thus, based on the foregoing, the Court grants Defendants’ motion as to Plaintiffs’

Special Interrogatories (Set Two) and Demand for Production of Documents (Set Three). The Court denies the motion as to the Request for Admission (Set Two).

Plaintiffs’ Motions to Compel

In light of the foregoing, Plaintiffs’ motions to compel further responses to the Special Interrogatories (Set Two) and Demand for Production of Documents (Set Three) are moot. What remains is Plaintiffs’ motion for an order that the truth of each matter specified in the Request for Admission (Set Two) to Defendants be deemed admitted.

If a party to whom requests for admission are directed fails to serve a timely response, the requesting party may move for an order that the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction. (Code Civ. Proc., 2033.280, subd. (b)Code Civ. Proc., 2033.280, subd. (b)Code Civ. Proc., 2033.280, subd. (b)Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_7","Original_string":"Code Civ. Proc., 2033.280, subd. (b)","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":11606,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 2033.280","Start":11606,"Story":"wdMainTextStory"},"TOA":"","html":"

Code Civ. Proc., 2033.280, subd. (b)

"}" docpart="14028C00ED1047618FDFA574AA7BDC5A">Code Civ. Proc., 2033.280, subd. (b).)

However, if the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response that is substantially Code-compliant, the motion may not be granted. (Code Civ. Proc., 2033.280, subd. (c)Code Civ. Proc., 2033.280, subd. (c)Code Civ. Proc., 2033.280, subd. (c)Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_8","Original_string":"Code Civ. Proc., 2033.280, subd. (c)","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":11860,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 2033.280","Start":11860,"Story":"wdMainTextStory"},"TOA":"","html":"

Code Civ. Proc., 2033.280, subd. (c)

"}" docpart="14028C00ED1047618FDFA574AA7BDC5A">Code Civ. Proc., 2033.280, subd. (c).)

Defendants provide evidence that because their motion for protective order had been filed but not yet heard, Defendants did serve timely responses to PlaintiffsRequest for Admissions (Set Two) on April 28, 2021. (Zapf Decl., 11; Ex. 3 to Decl. of Wild Chang and Kenneth Lo.)[4] Based on the foregoing, Plaintiffs’ motion is denied.

Conclusion

Based on the foregoing, Defendants’ motion for protective order is granted in part and denied in part. The Court orders Plaintiffs to redraft the Special Interrogatories (Set Two) to include no more than 35 interrogatories that are compliant with Code of Civil Procedure section 2030.060Code of Civil Procedure section 2030.060Code of Civil Procedure section 2030.060Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_10","Original_string":"Code of Civil Procedure section 2030.060","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":12702,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 2030.060","Start":12702,"Story":"wdMainTextStory"},"TOA":"","html":"

Code of Civil Procedure section 2030.060

"}" docpart="14028C00ED1047618FDFA574AA7BDC5A">Code of Civil Procedure section 2030.060. The Court further orders Plaintiffs to redraft the Demand for Production of Documents (Set Three) to include no more than 35 requests for production that are compliant with Code of Civil Procedure section 2031.030Code of Civil Procedure section 2031.030Code of Civil Procedure section 2031.030Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_11","Original_string":"Code of Civil Procedure section 2031.030","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":12918,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 2031.030","Start":12918,"Story":"wdMainTextStory"},"TOA":"","html":"

Code of Civil Procedure section 2031.030

"}" docpart="14028C00ED1047618FDFA574AA7BDC5A">Code of Civil Procedure section 2031.030.

The Court also grants Defendants’ request for monetary sanctions in part. The Court finds that an award of $1,030.65 ($190 x 5.1 hours + $61.65 filing fees) is reasonable. (See Zapf Decl. 21.) Therefore, the Court orders Plaintiffs to pay $1,030.65 in monetary sanctions to Defendants within 30 days of the date of service this Order.

Plaintiffs’ motion to compel further responses to Special Interrogatories (Set Two) and Demand for Production of Documents (Set Three) is moot. Plaintiffs’ motion for an order that the truth of each matter specified in the Request for Admission (Set Two) be deemed admitted is denied.

Defendants are ordered to provide notice of this Order.

DATED: March 8, 2022

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1]See Zapf Decl. in Support of Defendants’ Opposition to Plaintiffs’ Motion to Compel Defendants’ Requests for Admission (Set Two), 14.

[2]In the alternative, Defendants request a protective order limiting the discovery to which Defendants are obligated to respond. (Mot. at p. 10:15-16.)

providing Defendants additional time to so respond.

[3]Based on the Declaration of Jesse Gutierrez, the Court exercises its discretion to consider Defendants’ late-filed opposition to Plaintiffs’ motion to compel responses to Requests for Admission. (Cal. Rules of Court, rule 3.1300(d).) In addition, the Court notes that the proof of service attached to the opposition indicates that it was timely served on February 23, 2022.

[4]Defendants note that an April 9, 2021 email from Plaintiffs demanded responses to the Request for Admission (Set Two) and other discovery requests by April 28, 2021. (Zapf Decl., 12, Ex. B.)



b"

Case Number: ****0876 Hearing Date: October 22, 2021 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

WILD CHANG, et al.,

Plaintiffs,

vs.

FARMERS INSURANCE COMPANY, et al.,

Defendants.

Case No.:

****0876 c/w 21STCV03453

Hearing Date:

October 22, 2021

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANTS’ AMENDED DEMURRERS TO THIRD AMENDED COMPLAINT

Background

On February 16, 2017, Plaintiffs Wild Chang (“Chang”) and Kenneth Lo (“Lo”) filed the lead action against Defendants Farmers Insurance Company, Inc. (“Farmers”), Fire Insurance Exchange (“FIE”), Stacy Chern Insurance Agency (“Chern Insurance”), and Stacy Chern (“Chern”). On January 28, 2021, Chang, Lo, and Wild Chang, Jr. (“Chang, Jr.”) (collectively, “Plaintiffs”) filed the second action against Farmers, FIE, Chern, and Woolls Peer Dollinger & Scher (“WPDS”) (collectively, “Defendants”). The two cases were subsequently consolidated, and the operative Third Amended Complaint (“TAC”) was deemed filed on July 22, 2021 in the consolidated cases.

In the TAC, Plaintiffs assert causes of action for (1) fraud, (2) tortious breach of implied covenant of good faith and fair dealing, (3) breach of contract, (4) unfair business practices, (5) professional negligence, and (6) emotional distress, arising out of an insurance coverage dispute relating to the residential property located at 2798 Native Avenue, Rowland Heights, California 91748 (the “Subject Property”).

Defendants now demur to all causes of action.[1] Plaintiffs oppose.

Request for Judicial Notice

The Court grants Defendants’ request for judicial notice in its entirety.

The Court grants Plaintiffs’ request for judicial notice as to Exhibits 1, 2, 5, and 6. The Court denies Plaintiffs’ request for judicial notice as to Exhibits 3, 4, 7, and 8. The Court sustains Defendants’ objections to Exhibits 7 and 8. As to Exhibits 5, and 6, the Court takes judicial notice only as to the fact of the filing of those declarations. The Court does not take judicial notice of the truth of the matters asserted therein.

The Court notes that Plaintiffs filed a supplemental declaration on October 4, 2021, and a second supplemental declaration on October 13, 2021. Plaintiffs were not granted leave to file supplemental briefing, and Plaintiffs offer no authority in support of the filings. Therefore, the Court does not consider Plaintiffs’ supplemental declarations.

Discussion

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, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. ((Code Civ. Proc., ; 430.10(f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. ((Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

    1. Uncertainty

As an initial matter, the Court overrules the special demurrer. Other than referencing Code of Civil Procedure section 430.10, subdivision (f), Defendants offer no argument that demonstrates that any of the causes of action are uncertain.

    1. Fraud as to Farmers, FIE, and Chern

To plead a cause of action for fraud, a plaintiff must plead facts showing the following elements: (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. ((Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In Lazar v. Superior Court (1996) 12 Cal.4th 631, 645, the California Supreme Court addressed the requirement that “fraud must be pled specifically; general and conclusory allegations do not suffice.” The Lazar court explained that “[t]his particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Ibid. [emphasis in original].)

Here, Plaintiffs’ fraud claim is pled using five conclusory paragraphs which follow 63 paragraphs of relatively undifferentiated factual matter. This sort of “chain letter” style of pleading—“wherein each claim for relief incorporates by reference all preceding paragraphs”—is inherently disfavored. ((International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1179.) Here, it is impermissible because it masks the true nature of the fraud claim and makes it impossible to tell which facts go to which elements of the fraud cause of action. It is unclear which misrepresentations are alleged to be the basis of the fraud, who said them and when and how, and the action Plaintiffs took in reliance on those misrepresentations.

Accordingly, Defendants’ demurrer to the first cause of action is sustained.

    1. Tortious breach of implied covenant of good faith and fair dealing and breach of contract as to Farmers and Chern

Nestled among the other allegations and causes of action regarding Defendants’ broader business practices, the second and third causes of action consist of a straightforward claim for an insurer’s breach of insurance contract and associated bad faith claim. Defendants argue that while both of these causes of action can be maintained against FIE, both must fail as to all other defendants because they are not parties to the underlying contract. The Court agrees.

Plaintiffs allege that they purchased “insurance” for the Subject Property on or about April 29, 2014. (TAC, ¶ 18, Ex. 3.) Plaintiffs attach as Exhibit 3 to the TAC a document entitled “Evidence of Property Insurance,” which Plaintiffs allege is a “legal, valid and binding contract” between Lo and Chang, on the one hand, and Farmers, on the other hand. (TAC, ¶ 21.) But, as noted by Defendants, the document is a certificate of insurance, and thus, not a contract. ((See Empire Fire & Marine Ins. Co. v. Bell (1997) 55 Cal.App.4th 1410, 1423, fn. 25 [“A certificate of insurance is merely evidence that a policy has been issued. [Citation.] It is not a contract between the insurer and the certificate holder.”].)

Defendants also point out that Plaintiffs have alleged in a previous version of the complaint that insurance had been in place for the Subject Property prior to the Certificate of Insurance being issued in April 2014. Indeed, in both the Second Amended Complaint and the TAC, Plaintiffs allege that the certificate of insurance was issued for purposes of a refinance of the Subject Property. (Defendants’ RFJN, Ex. 2, ¶ 11; TAC, ¶ 18.) And the declarations pages of the insurance policy show that it was FIE who issued the subject insurance policy, not Farmers. (TAC, Ex. 5, p. 2; Ex. 9, p. 6; Ex. 10, p. 3; Ex. 14, p. 1.)

Plaintiffs offer no legal theory in opposition under which non-contracting parties can be held liable on the contract, and Plaintiffs’ arguments relating to the alleged fraudulent conduct by Defendants are insufficient to satisfy the elements of a contract-based claim.

Therefore, demurrer to the third and fourth causes of action as asserted against Farmers and Chern is sustained.

    1. Unfair business practices as to Farmers and Chern

Plaintiffs’ fourth cause of action is for unfair business practices. California’s Unfair Competition Law (UCL), codified at Business and Professions Code section 17200 et seq., prohibits “any unlawful, unfair, or fraudulent business act or practice.” (Bus. & Prof. Code ; 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610.) A UCL plaintiff must plead and prove that the defendant engaged in a business practice that was either “unlawful (i.e., is forbidden by law), unfair (i.e., harm to victim outweighs any benefit) or fraudulent (i.e., is likely to deceive members of the public).” ((Albillo v. Intermodal Container Services, Inc. (2003) 114 Cal.App.4th 190, 206.) “Through the UCL a plaintiff may obtain restitution and/or injunctive relief against unfair or unlawful practices.” ((Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 [internal quotations omitted].) Money damages are not available. (Kaldenbach v. Mutual of Omaha Life Insurance Co. (2009) 178 Cal.App.4th 830, 847.)

First, as discussed, because these Defendants were not parties to the insurance contract, and because there does not appear to be any basis for holding them liable on the contract, there can be no UCL claim against them that is derivative of the insurance contract, either. To the extent the UCL claim is based on these Defendants’ participation in the alleged “criminal enterprise,” it is not clear from the TAC how or why the alleged business practice is wrongful in any way. The “gist” of Plaintiffs’ allegations is that they believed that they contracted for insurance with Farmers but ended up with a “self-owned membership” in an unincorporated association. Plaintiffs’ allege that this business arrangement or structure is fraudulent because it allows Farmers and its agents to escape legal liability arising from the sale of deceptive insurance to consumers. However, the facts as alleged in the TAC do not bear out this alleged scheme. Importantly, Plaintiffs are not alleging that they were not actually insured. And Plaintiffs do not explain how they were harmed by being insured through an insurance exchange as opposed to some other type of insurance company.

Accordingly, the demurrer to the fourth cause of action as asserted against Farmers and Chern is sustained.

    1. Professional negligence as to FIE and Farmers

Plaintiffs’ fifth cause of action is for professional negligence, the elements of which are “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” ((Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095 [internal quotations omitted].)

Defendants argue that Plaintiffs cannot maintain a cause of action for professional negligence against Farmers and FIE because both are insurance companies, not professionals. Therefore, the only duty that could possibly be owed by Farmers and FIE to their insureds is a duty of good faith and fair dealing. The Court notes that Plaintiffs offer no rebuttal to this argument. Therefore, the demurrer is sustained.

    1. Emotional Distress

The sixth cause of action for emotional distress appears to be two-pronged. First, Plaintiffs appear to allege a cause of action for intentional infliction of emotional distress (IIED) as to Chang and Lo against Farmers, based on Farmers’ alleged failure to pay the full value of Plaintiffs’ insurance claim. (TAC, ¶¶ 97-100.)

Second, Plaintiffs appear to allege a cause of action for negligent infliction of emotional distress (NIED) under a bystander theory that applies only to Chang, Jr., who is Chang’s son. In support of the bystander theory, Plaintiffs allege that Chang, Jr. was physically present “at the scene,” that he “contemporaneously observed” the scene, and that a close blood relationship existed between Chang and Chang, Jr. (TAC, ¶¶ 94-96.)

Defendants argue that the IIED claim must fail because it is entirely duplicative of the bad faith claim. Defendants also argue that because Farmers did not issue the insurance policy, it could not have failed to properly adjust the claim. The Court finds this argument well-taken.

Next, Defendants argue that the NIED claim must fail because the elements of the claim have not been established. The only allegations related to Chang, Jr.’s emotional distress are that on June 8, 2015, Chang, Jr. could not wake his father because his father had suffered a stroke. (TAC, ¶ 45.) But Plaintiffs do not allege that Chang’s stroke was directly caused by anything Farmers, or any of the other defendants, did. ((See Thing v. La Chusa (1989) 48 Cal.3d 644, 647 [limiting NIED bystander claims to those where the plaintiff “is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim”].)

Accordingly, the demurrer to the sixth cause of action is sustained.

Conclusion

Based on the above analysis, Defendants’ demurrer is sustained in its entirety.

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.” ((Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” ((Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The Court finds that Plaintiffs have failed to meet that burden with regard to the demurrer to the first through fifth causes of action, and therefore, the demurrer to those causes of action is sustained without leave to amend.

The Court orders Defendant Farmers to file and serve a proposed judgment of dismissal within 30 days of the date of this order. (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168,

186 [“An order sustaining a demurrer without leave to amend is not a final judgment; a judgment of dismissal follows such an order as a matter of course.”].)

Defendants are ordered to give notice of this ruling.

DATED: October 22, 2021 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] Among other things, Defendants argue that all causes of action against WPDS must fail. However, on October 14, 2021, the Court issued an order granting, in part, Defendants’ special motion to strike. As a result of that order, all causes of action against WPDS have already been dismissed.

"


b'

Case Number: ****0876 Hearing Date: October 14, 2021 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

WILD CHANG, et al.,

Plaintiffs,

vs.

FARMERS INSURANCE COMPANY, et al.,

Defendants.

Case No.:

****0876 c/w 21STCV03453

Hearing Date:

October 14, 2021

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANTS’ AMENDED SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CCP ; 425.16; and

DEFENDANTS’ AMENDED DEMURRERS TO THIRD AMENDED COMPLAINT

Background

On February 16, 2017, Plaintiffs Wild Chang and Kenneth Lo filed the lead action against Defendants Farmers Insurance Company, Inc. (“Farmers”), Fire Insurance Exchange (“FIE”), Stacy Chern Insurance Agency (“Chern Insurance”), and Stacy Chern (“Chern”). On January 28, 2021, Plaintiffs Wild Chang, Kenneth Lo, and Wild Chang, Jr. filed the second action against Farmers, FIE, Chern, and Woolls Peer Dollinger & Scher (“WPDS”) (collectively, “Defendants”). The two cases were subsequently consolidated, and the operative Third Amended Complaint (“TAC”) was deemed filed on July 22, 2021 in the consolidated cases.

Defendants move to strike the TAC pursuant to Code of Civil Procedure section 425.16 on the grounds that all causes of action against WPDS as well as the fraud cause of action as to all Defendants arise from protected activity and are legally without merit. Plaintiffs oppose.

The Defendants’ Demurrer to the Third Amended Complaint is continued to October 22, 2021, at 8;30 a.m. in Dept. 50.

Discussion

    1. Evidence

The Court grants Defendants’ request for judicial notice filed in support of the anti-SLAPP motion in its entirety (Exhibits 1-9 and Item 10).

The Court grants Plaintiffs’ request for judicial notice as to Exhibits 1, 2, 5, and 6. The Court denies Plaintiffs’ request for judicial notice as to Exhibits 3, 4, and 7-10. As to Exhibits 5 and 6, the Court takes judicial notice only as to the fact of the filing of those declarations. The Court does not take judicial notice of the truth of the matters asserted therein.

The Court notes that Plaintiffs filed a supplemental declaration on October 4, 2021, and a second supplemental declaration on October 13, 2021. Plaintiffs were not granted leave to file supplemental briefing, and Plaintiffs offer no authority in support of such a filing. Therefore, the Court does not consider Plaintiffs’ supplemental declaration.

    1. Legal Standard

The anti-SLAPP statute is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [internal quotations omitted].) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid)

    1. Prong One: Protected Activity

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.)

An act in furtherance of a person’s right of petition or free speech includes the following:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(Code Civ. Proc., ; 425.16, subd. (e).)

In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490-491.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [emphasis in original].) In making this determination, the Court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Ibid.) “The anti-SLAPP statute should be broadly construed and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct.” (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519 [internal citations omitted].)

As alleged in the TAC, on December 16, 2014, an accidental fire broke out in the crawl space underneath Plaintiffs’ home. (TAC, ¶ 25.) The fire department was successful at extinguishing the fire, but the property was extensively damaged as a result. (TAC, ¶¶ 26-27.) Plaintiffs opened an insurance claim with Defendants. (TAC, ¶ 29.) The Complaint contains a detailed series of allegations regarding Defendants’ investigation of the damage, Plaintiffs’ communication with Defendants, and Defendants’ ultimate refusal to pay the claim. (TAC, ¶¶ 28-52.) Dovetailed into the allegations regarding Plaintiffs’ claims are the broader allegations regarding Farmers’ and Fire’s handling of the insurance policy. (TAC, ¶ 43 [“On or about March 17, 2015, 3 months after the fire, Plaintiffs’ investigations counsel was finally able to obtain a copy of the ‘insurance policy’, which is now known to be a mere ‘self-owned membership’ in an incorporated associat[ion], not an ‘insurance policy’ underwritten by [Farmers] to Plaintiffs, contrary to the terms and conditions of the ‘insurance’ sold and bought on April 29, 2014.”].) At one point, Defendants offered to settle for $19,925.91, which Plaintiffs maintain is grossly deficient. (TAC, ¶ 52.) A later CCP ; 998 offer in the total amount of $28,485.12 was also rejected by Plaintiffs. (TAC, ¶ 57.)

Defendants contend that all causes of action against WPDS arise exclusively out of WPDS’s role as defense counsel in this lawsuit. In the TAC, Plaintiffs essentially allege two “wrongs”. First, Plaintiffs allege that they were wronged when their insurance claim was denied. Second, Plaintiffs allege that they were wronged when Defendants, acting in concert with one another, attempted to fraudulently convert the insurance purchased by Plaintiffs into a self-owned membership in an inter-insurance exchange. This was done in order to insulate Farmers and its agents from all liability arising from the “insurance” sold to Plaintiffs. As a result, Plaintiffs believed that they had purchased insurance from Farmers when in fact, their insurance was through FIE. The Court will refer to this second “wrong” as the “fraudulent scheme.”

Defendants focus their anti-SLAPP motion on the fraudulent scheme. And the Court notes that Plaintiffs do not allege that WPDS engaged in any conduct related to the denial of their insurance claim.

Defendants argue that the claims against WPDS arise exclusively out of WPDS’s role as defense counsel in this lawsuit. The allegations relating to WPDS are as follows:

The Court finds that this conduct falls within the ambit of Code of Civil Procedure section 425.16, and specifically written or oral statements or writings made in connection with an issue under consideration or review by a judicial body. Although Plaintiffs make various arguments in opposition, the Court finds Plaintiffs’ arguments meritless. Besides being conclusory and brief, Plaintiffs’ only argument in opposition to the prong one analysis is to assert that the anti-SLAPP statute does not protect WPDS from participating in an attempted fraudulent conversion. But Plaintiffs engage in no analysis of the actual conduct alleged and identified in the TAC.

However, the Court finds that the fraud cause of action as asserted against the non-WPDS Defendants is not based on written or oral statements made in connection with litigation. Defendants identify the gravamen of Plaintiffs’ fraud claim as the allegation that Defendants tricked Plaintiffs in a “bait and switch” scheme whereby Plaintiffs obtained a “self-owned membership” instead of an insurance policy issued by Farmers. Defendants then argue that the activity that gives rise to liability is Defendants’ legal defense in this lawsuit, and specifically, the position that FIE is a “self-owned membership.” But Defendants do not point to any specific allegations in the TAC that bears this theory of liability out. While WPDS’s conduct is protected activity, the allegation that FIE, Farmers, and Chern tricked Plaintiffs into believing that they were issued an insurance policy by Farmers when instead Plaintiffs were participants in an inter-insurance exchange has no apparent connection to litigation activity.

    1. Prong Two: Probability of Prevailing

On prong two of the anti-SLAPP analysis, a “plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476 [internal quotations omitted].) In making the prong two determination, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., ; 425.16, subd. (b)(2).) “The court does not, however, weigh [defendant’s] evidence against the plaintiff’s, in terms of either credibility or persuasiveness. Rather, the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)

Defendants argue that the litigation privilege applies to bar all causes of action asserted against WPDS. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 323 [noting that the litigation privilege is “relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing”].)

Civil Code section 47, subdivision (b) states: “[a] privileged publication or broadcast is one made . . . [i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2.” The litigation privilege applies to statements made prior to legal proceedings, or afterwards, if the statements are made in furtherance of the objects of the proceedings. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1272.) In other words, the statements must “be connected with, or have some logical relation to, the [proceeding].” (Ibid., citing Hawran v. Hixson (2012) 209 Cal.App.4th 256, 283.)

The statements identified above attributed to WPDS are statements made in connection with this litigation, and so the litigation privilege applies to bar liability as to WPDS. Plaintiffs do not argue otherwise. Plaintiffs also do not argue that liability against WPDS is based on any other conduct. Therefore, the Court finds that all causes of action against WPDS are properly stricken.

Conclusion

For the reasons set forth above, Defendants’ special motion to strike is granted in part. All causes of action against WPDS are ordered stricken. Defendants’ special motion to strike is otherwise denied.

Defendants are to give notice of this ruling.

DATED: October 14, 2021 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

'


Case Number: ****0876    Hearing Date: March 04, 2021    Dept: 37

HEARING DATE: March 4, 2021

CASE NUMBER: ****0876

CASE NAME: Wild Chang, et al. v. Farmers Insurance Company Inc., et al.

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTIES: Plaintiffs, Wild Chang and Kenneth Lo

TRIAL DATE: April 27, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Compel Further Responses to Special Interrogatories, Set Two from Wild Chang

OPPOSITION: February 19, 2021

REPLY: February 25, 2021

TENTATIVE: FIE’s motion is granted. Chang is ordered to serve verified, supplemental responses within 30 days. FIE’s request for sanctions is granted in the amount of $650.65. Further failures to provide code compliant responses may result in further sanctions, including exclusion orders. FIE is to give notice.

MOTION: Defendant’s Motion to Compel Further Responses to Requests for Production, Set Two from Wild Chang

OPPOSITION: February 19, 2021

REPLY: February 25, 2021

TENTATIVE: FIE’s motion is granted as to the request to compel further responses to requests for production, set two and request for monetary sanctions, in the amount of $650.65. The motion is otherwise denied. Chang is ordered to serve verified, supplemental responses within 30 days and to produce documents. Further failures to provide code compliant responses and document production may result in further sanctions, including exclusion orders. FIE is to give notice.

Background

This is an insurance coverage dispute arising in connection with property located at 2798 Native Avenue, Rowland Heights, California, 91748. (the “Property”). Plaintiff Wild Chang (“Chang”) alleges that in or about 1994, he had the property insured through Defendant, Farmer’s Insurance Exchange Company, Inc. (“Farmers”) According to the Complaint, the Property suffered fire damage in 2014, after which Farmers allegedly failed to properly investigate the damage and failed to properly assess the fair value of repairs required to the Property. Specifically, the Complaint alleges that although Chang made repeated requests for accommodation while the Property was being repaired so that he and his 13-year-old son could have a place to live and that in response Farmers allegedly failed to comply with these reasonable requests. Finally, Farmers allegedly concluded investigation into the Property’s fire damage by sending a check for $19,925.91 in compensation, which was allegedly far under the estimated restoration costs of $128,202.99 to $145,881.84. The Complaint also names as a defendant moving party, Fire Insurance Exchange. (“FIE”)

Plaintiffs Chang and Kenneth Lo’s (“Lo”) Complaint alleges the following causes of action: (1) breach of implied covenant of good faith and fair dealing, (2) breach of contract, (3) unfair business practices (Business and Professions Code ; 17200), (4) intentional infliction of emotional distress, (5) breach of fiduciary duty, (6) professional negligence. Defendants Fire Insurance Exchange Corporation (“FIE”) and Stacy Chern (“Chern”) are also named in the Complaint. The Complaint alleges that Chern is liable for acting in bad faith by threatening to terminate Plaintiffs’ insurance in the course of investigation into the fire damage rather than properly investigate the damage.

On April 14, 2017, Plaintiffs filed a First Amended Complaint (“FAC”), alleging the same causes of action.

On August 31, 2017, Plaintiffs filed a Second Amended Complaint (“SAC”). The SAC only alleges the following four causes of action: (1) tortious breach of implied covenant of good faith and fair dealing, (2) breach of contract, (3) unfair business practices (Business and Professions Code ; 17200), (4) professional negligence.

FIE now moves to compel further responses to Special Interrogatories and Requests for Production, Sets Two from Chang. Plaintiffs oppose the motions.

Procedural History

FIE served Chang with Requests for Production and Special Interrogatories, Sets Two on May 8, 2019. (Declaration of Caitlin Zapf in Support of Motion to Compel Further Responses to Special Interrogatories (“Zapf SROG Decl.”), ¶ 3, Exh. A; Declaration of Caitlin Zapf in Support of Motion to Compel Further Responses to Requests for Production (“Zapf RFP Decl.”), ¶ 3, Exh. A.)

Chang served amended responses to Special Interrogatories, Set Two on August 7, 2019. (Zapf SROG Decl. ¶ 5, Exh. B.) Chang also served amended responses to Requests for Production, Set Two on August 7, 2019. (Zapf RFP Decl. ¶ 4, Exh. C.)

On August 28, 2020, the court granted FIE’s motions to compel responses to various discovery from Plaintiffs. Specifically, the court ordered Chang to provide further responses to Special Interrogatories, Set Two and pay sanctions. (see October 28, 2020 Minute Order) The court also ordered Chang to provide further responses to Requests for Production, Set Two and pay sanctions. (Id.)

On December 24, 2020, the court granted Plaintiffs’ Ex Parte Application Allowing Moratorium and Installments for Discovery Sanctions. Plaintiffs’ deadline to pay sanctions was extended to March 31, 2021.

On January 10, 2021, Chang served further responses to Special Interrogatories and Requests for Production, Sets Two. (Zapf SROG Decl., ¶ 9, Exh. E; Zapf RFP Decl. ¶ 10, Exh. E.)

Meet and Confer Efforts

A motion to compel further responses “shall be accompanied by a meet and confer declaration.”  (Code Civ. Proc., ;; 2030.300, subd. (b)(1), 2031.310, subd. (b)(2).)  The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., ; 2016.040.)  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel….  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).)  

On December 21, 2019, FIE’s counsel called and emailed Chang to remind him of his outstanding discovery responses that the court ordered due by November 27, 2019. (see Zapf SROG Decl. ¶ 9.)

After receiving Chang’s further responses on January 10, 2021, FIE’s counsel Caitlin Zapf attests that she made multiple attempts to meet and confer with Plaintiffs but that they have not responded. (see Zapf SROG Decl. ¶ 11.) Specifically, Zapf attests that she sent a meet and confer letter on January 11, 2021 and followed up on January 14, 2021, requesting Plaintiffs’ availability for an Informal Discovery Conference. (“IDC”) (see Zapf SROG Decl. ¶ 11.) Zapf attestse that she also followed up on January 19, 2021 but did not receive a response. (see Zapf SROG Decl. ¶ 11.)

The Zapf Declaration is sufficient for purposes of Code of Civil Procedure, sections 2030.300 and 2031.310.

Discussion

  1. Legal Authority

On receipt of responses to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (Code Civ. Proc., ; 2030.300, subd. (a)(1)-(3).) Similarly, on receipt of responses to requests for production, the propounding party may move for an order compelling a further response if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection is without merit. (Code Civ. Proc., ; 2031.310, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

  1. Timeliness

Pursuant to Code of Civil Procedure sections 2030.300, subdivision (c) and section 2031.310, subdivision (c), a motion to compel further responses to interrogatories or requests for production must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., ;; 1013, subd. (a); 2030.300, subd. (c), 2031.310, subd. (c).) The 45-day requirement of Code of Civil Procedure, section 2030.300, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

FIE’s motions are based on Chang’s further responses to Requests for Production and Special Interrogatories, Sets Two, both served on January 10, 2021. As such, FIE’s motion to compel deadline was February 24, 2021. FIE’s motions were filed on January 27, 2021 and are thus timely.

  1. Analysis

FIE contends that Chang must be ordered to provide further responses to Special Interrogatories, Set Two, numbers 11, 12, 13, 15, 20, and 21. Additionally, FIE moves for evidentiary sanctions against Chang in connection with Requests for Production, Set Two or, in the alternative, for an order compelling further responses. The court will address each interrogatory or request individually.

  1. Special Interrogatories: numbers 11, 12, 13, 15, 20, 21

No. 11: DESCRIBE all work Gang Rao completed at the PROPERTY. (The term "DESCRIBE" means to state what type of work was completed, identify every room and/or area of the PROPERTY work was performed, what was item(s) were fixed and/or repaired and the date(s) said work was completed.)

Chang’s August 7, 2019 response stated that Gang Rao was “able to do limited restoration work” given the “grossly deficient funds” tendered by Defendants. (Separate Statement in Support of Motion, 2.) However, Chang’s January 10, 2021 response stated that this is just “another example of false advertisement” by Defendants and that Defendants should stop “such unfair, dishonest and unreasonable practices.” (Id.) Chang’s response also now stated that Gang Rao was “unable to complete the work needed to repair the fire damages.” (Id.)

FIE contends that a further response to this interrogatory is required because the January 10, 2021 further responses only consist of improper objections and arguments. (Separate Statement in Support of Motion, 3.) In opposition, Chang contends that FIE’s motion must be denied because he produced documents and responses on November 30, 2020. (Opposition, 2.) Chang also contends that FIE’s motion is moot pending the court’s ruling on Plaintiffs’ motion to consolidate. (Opposition, 7.) However, Chang does not demonstrate that he served supplemental responses and produced documents on November 30, 2020.

The court agrees with FIE that a further response is required. Chang’s January 10, 2021 further response is nonresponsive and contains improper argument and objections. Further, the January 10, 2021 response is contradictory to Chang’s prior responses, as the response now states that restoration work was unable to done after stating that “limited” restoration work was done.

For these reasons, FIE’s motion is granted as to this interrogatory.

No. 12: DESCRIBE all work Connie completed at the PROPERTY

Chang’s August 7, 2019 response stated that Connie was “only able to clean the kitchen, the laundry room and the bath rooms, but not other living areas.” (Separate Statement in Support of Motion, 3.) Chang’s January 10, 2021 response stated similar arguments as interrogatory 11 about FIE’s interrogatories being “false advertisement.” (Id.) The January 10, 2021 response also stated that the interrogatory was “already answered, as re-inspected by Defendants’ agents.”

FIE contends that a further response to this interrogatory is required because the January 10, 2021 further responses only consist of improper objections and arguments. (Separate Statement in Support of Motion, 4.) The court agrees with FIE that a further response is required. Chang’s January 10, 2021 further response is nonresponsive and contains improper argument and objections. It is additionally unintelligible, as the court is unable to determine what Chang’s statement that this interrogatory was “already answered” refers to.

For these reasons, FIE’s motion is granted as to this interrogatory.

No. 13: DESCRIBE all work Home Carpet Company completed at the PROPERTY

Chang’s August 7, 2019 response stated that Home Carpet “was only able to do limited areas on the first floor, but not other living areas.” (Separate Statement in Support of Motion, 4.) Chang’s January 10, 2021 response stated similar arguments as interrogatory 11 about FIE’s interrogatories being “false advertisement.” (Id.) The January 10, 2021 response also stated that the interrogatory was “already answered, as re-inspected by Defendants’ agents.”

FIE contends that a further response to this interrogatory is required because the January 10, 2021 further responses only consist of improper objections and arguments. (Separate Statement in Support of Motion, 5.) The court agrees with FIE that a further response is required. Chang’s January 10, 2021 further response is nonresponsive and contains improper argument and objections. It is additionally unintelligible, as the court is unable to determine what Chang’s statement that this interrogatory was “already answered” refers to.

For these reasons, FIE’s motion is granted as to this interrogatory.

No. 15: DESCRIBE all work Base Flow Plumbing completed at the PROPERTY.

Chang’s August 7, 2019 response stated that Plaintiffs “had to advance the repair cost to Base Flow Plumbing to repair the pipe damages caused by the fire incident in order to prevent flooding.” (Separate Statement in Support of Motion, 5.) Chang’s January 10, 2021 response stated similar arguments as interrogatory 11 about FIE’s interrogatories being “false advertisement.” (Id., 6) The January 10, 2021 response also stated that the interrogatory was “already answered, as re-inspected by Defendants’ agents.”

FIE contends that a further response to this interrogatory is required because the January 10, 2021 further responses only consist of improper objections and arguments. (Separate Statement in Support of Motion, 6.) The court agrees with FIE that a further response is required. Chang’s January 10, 2021 further response is nonresponsive and contains improper argument and objections. It is additionally unintelligible, as the court is unable to determine what Chang’s statement that this interrogatory was “already answered” refers to.

No. 20: If the response to Interrogatory no. 19 is in the affirmative, state what additional work is needed to repair the damages caused by the FIRE.

Chang’s August 7, 2019 states that documents in Exhibit 1 support his claims for injuries. (Separate Statement in Support of Motion, 7.) Chang’s January 10, 2021 response stated similar arguments as interrogatory 11 about FIE’s interrogatories being “false advertisement.” (Id.) The January 10, 2021 response also stated that the interrogatory was “already answered, as re-inspected by Defendants’ agents.”

FIE contends that a further response to this interrogatory is required because the January 10, 2021 further responses only consist of improper objections and arguments. (Separate Statement in Support of Motion, 7-8.) Additionally, FIE contends that the documents identified in Exhibit 1 are nonresponsive, as they do not distinguish between the work proposed and completed. (Id.)

The court agrees with FIE that a further response is required. Chang’s January 10, 2021 further response is nonresponsive and contains improper argument and objections. It is additionally unintelligible, as the court is unable to determine what Chang’s statement that this interrogatory was “already answered” refers to.

For these reasons, FIE’s motion is granted as to this interrogatory.

No. 21: If the response to Interrogatory no. 19 is in the affirmative, IDENTIFY all WRITINGS you have obtained that evidence the repairs still needed at the PROPERTY. (The term "IDENTIFY" when used in reference to WRITINGS means to describe the nature of the document, the date, the author and any recipients(s).

Chang’s response to interrogatory 21 is identical to his response to interrogatory 20. Thus, FIE’s motion is granted as to interrogatory 21 for the same reasons stated with respect to interrogatory 20.

  1. Request for Production No. 3

FIE’s request number 3 asks Chang for the following: “All WRITINGS you identified in your Response to Fire Insurance Exchange’s Special Interrogatories, Set Two.” (Separate Statement in Support of Motion, 2.) FIE contends that evidentiary sanctions are appropriate against Chang for his willful failure to serve substantive responses or, alternatively, that Chang should be ordered to serve substantive responses. (Motion, 3-4.) Specifically, FIE requests an evidentiary sanction that “Plaintiffs cannot introduce as evidence any WRITINGS in support of additional repairs needed at the PROPERTY that have not already been produced to FIE.” (Motion, 5.)

On August 7, 2019, Chang’s response stated: “Plaintiff has compiled a list of damages and injuries with supporting estimates and receipts numbering some 148 pages, as Exhibit 1 hereto produced.” (Id.) Chang’s further responses on January 10, 2021 contended that this request was “just another example of false advertisement” and stated that “therefore, any and all responses and WRITINGS produced” are “amended to mean for all Defendants.” (Id., 2-3.)

FIE contends that a further response is required because Chang’s January 10, 2021 response provides no substantive information but instead provides unintelligible argument and objections. (Id., 3.) In opposition, Chang contends that FIE’s motion must be denied because he produced documents and responses on November 30, 2020. (Opposition, 2.) Chang also contends that FIE’s motion is moot pending the court’s ruling on Plaintiffs’ motion to consolidate. (Opposition, 7.) However, Chang does not demonstrate that he served supplemental responses and produced documents on November 30, 2020.

The court agrees with FIE that a further response to this request is warranted. Chang’s January 10, 2021 response contains unintelligible argument and objections and is nonresponsive. Chang was required to identify and produce any documents he identified in response to Special Interrogatories, Set Two.

However, the court does not award evidentiary sanctions against Chang. Generally, the discovery statutes evince an incremental approach to sanctions, starting with monetary sanctions and ending with the ultimate sanction of dismissal.  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “[W]hen the rule or order violated concerns discovery, the trial court may impose sanctions that ‘are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he [or she] seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.’  [Citations.]”  (Rail Servs. of Am. v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 331-332, internal quotation marks omitted, quoting Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64, italics in Rail Services.) The court finds that monetary sanctions against Chang should be sufficient in this instance at this time.

For these reasons, FIE’s motion to compel further responses to Requests for Production, Set Two is granted.

Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., ; 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., ; 2023.010 (d).)

FIE requests $650.65 in sanctions in connection with each motion. Zapf attests in support of each request that her billing rate is $190 per hour. (see Zapf SROG Decl., ¶ 12.) Zapf further attests that she billed 2.1 hours preparing each motion and expects to bill another hour to prepare the reply on each motion and attend the hearing. (Id.)

The court is inclined to award sanctions against Chang and finds the requested amounts reasonable. Thus, FIE’s request for sanctions against Chang in connection with each motion is granted.

Conclusion

FIE’s motion is granted. Chang is ordered to serve verified, supplemental responses within 30 days. FIE’s request for sanctions is granted in the amount of $650.65. Further failures to provide code compliant responses may result in further sanctions, including exclusion orders. FIE is to give notice.

FIE’s motion is granted as to the request to compel further responses to requests for production, set two and request for monetary sanctions, in the amount of $650.65. The motion is otherwise denied. Chang is ordered to serve verified, supplemental responses within 30 days and to produce documents. Further failures to provide code compliant responses and document production may result in further sanctions, including exclusion orders. FIE is to give notice.



Case Number: ****0876    Hearing Date: March 01, 2021    Dept: 37

HEARING DATE: March 1, 2021

CASE NUMBER: ****0876

CASE NAME: Wild Chang, et al. v. Farmers Insurance Company Inc., et al.

TRIAL DATE: April 27, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Compel Further Responses to Requests for Production, Set Four from Wild Chang

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Wild Chang

OPPOSITION: Combined opposition February 16, 2021

REPLY: February 22, 2021

TENTATIVE: FIE’s motion is granted. FIE’s request for sanctions against Chang is also granted in the amount of $517.65. Chang is to provide verified supplemental responses, without objection, and to produce documents within 30 days. FIE is to give notice.

MOTION: Defendant’s Motion to Compel Further Responses to Requests for Production, Set Four from Kenneth Lo

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Kenneth Lo

OPPOSITION: Combined opposition February 16, 2021

REPLY: February 22, 2021

TENTATIVE: FIE’s motion is granted. FIE’s request for sanctions against Lo is also granted in the amount of $517.65. Lo is to provide verified supplemental responses, without objection, and to produce documents within 30 days. FIE is to give notice.

Background

This is an insurance coverage dispute arising in connection with property located at 2798 Native Avenue, Rowland Heights, California, 91748. (the “Property”). Plaintiff Wild Chang (“Chang”) alleges that in or about 1994, he had the property insured through Defendant, Farmer’s Insurance Exchange Company, Inc. (“Farmers”) According to the Complaint, the Property suffered fire damage in 2014, after which Farmers allegedly failed to properly investigate the damage and failed to properly assess the fair value of repairs required to the Property. Specifically, the Complaint alleges that although Chang made repeated requests for accommodation while the Property was being repaired so that he and his 13-year-old son could have a place to live and that in response Farmers allegedly failed to comply with these reasonable requests. Finally, Farmers allegedly concluded investigation into the Property’s fire damage by sending a check for $19,925.91 in compensation, which was allegedly far under the estimated restoration costs of $128,202.99 to $145,881.84. The Complaint also names as a defendant moving party, Fire Insurance Exchange. (“FIE”)

Plaintiffs Chang and Kenneth Lo’s (“Lo”) Complaint alleges the following causes of action: (1) breach of implied covenant of good faith and fair dealing, (2) breach of contract, (3) unfair business practices (Business and Professions Code ; 17200), (4) intentional infliction of emotional distress, (5) breach of fiduciary duty, (6) professional negligence. Defendants Fire Insurance Exchange Corporation (“FIE”) and Stacy Chern (“Chern”) are also named in the Complaint. The Complaint alleges that Chern is liable for acting in bad faith by threatening to terminate Plaintiffs’ insurance in the course of investigation into the fire damage rather than properly investigate the damage.

On April 14, 2017, Plaintiffs filed a First Amended Complaint (“FAC”), alleging the same causes of action.

On August 31, 2017, Plaintiffs filed a Second Amended Complaint (“SAC”). The SAC only alleges the following four causes of action: (1) tortious breach of implied covenant of good faith and fair dealing, (2) breach of contract, (3) unfair business practices (Business and Professions Code ; 17200), (4) professional negligence.

FIE now moves to compel each Plaintiff to provide further responses to Requests for Production, Set Four without objection. Plaintiffs oppose the motions.

Procedural History

FIE served each Plaintiff with Requests For Production, Set Four on May 1, 2020. (see Declaration of Caitlin R. Zapf in Support of Motion to Compel Further Responses to Requests for Production from Wild Chang (“Zapf Chang Decl.”), ¶ 3, Ex. A.) Each Plaintiff served his responses on January 11, 2021. (see Zapf Chang Decl. ¶ 4, Ex. B.)

Meet and Confer Efforts

A motion to compel further responses “shall be accompanied by a meet and confer declaration.”  (Code Civ. Proc., ;; 2031.310, subd. (b)(2).)  The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., ; 2016.040.)  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel….  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).)  

On January 11, 2021, FIE’s counsel Caitlin Zapf sent meet and confer letters to Plaintiffs stating that their objections were untimely and requesting Plaintiffs’ availability for an Informal Discovery Conference. (“IDC”) (see Zapf Chang Decl. ¶ 5, Ex. C.) Zapf sent follow-up meet and confer letters on January 14, 2021 and January 19, 2021. (Id.)

The Zapf Declaration is sufficient for purposes of Code of Civil Procedure, section 2031.310.

Discussion

  1. Legal Authority

On receipt of responses to requests for production, the propounding party may move for an order compelling a further response if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection is without merit. (Code Civ. Proc., ; 2031.310, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

  1. Timeliness

Pursuant to Code of Civil Procedure section 2031.310, subdivision (c), a motion to compel further responses to requests for production must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., ;; 1013, subd. (a); 2031.310, subd. (c).) The 45-day requirement of Code of Civil Procedure, section 2031.310, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (Sexton).)

Plaintiffs each served their responses to Requests for Production, Set Four on January 11, 2021. Thus, FIE’s motion to compel deadline was February 25, 2021. FIE’s motions were filed on January 27, 2021 and are thus timely.

  1. Analysis

FIE contends that each Plaintiff must be ordered to serve further responses to Requests for Production, Set Four without objection because each Plaintiff served his responses six months late and thus, waived all objections. (see FIE Motion to Compel Further Responses to Requests for Production from Chang (“FIE Chang Motion”), 3.)

Plaintiffs submit a combined opposition to both motions. Plaintiff’s opposition does not dispute that they were timely served with FIE’s discovery or that each of them served untimely responses on January 11, 2021. Instead, Plaintiff argues that FIE’s motions should be denied because “FIE’s Motions are extensions of frauds by Farmer’s,” and that additionally, Plaintiff’s pending motion to consolidate, if granted, would make FIE’s motions moot. (Opposition, 3-5.) However, Plaintiffs’ arguments fail, as Plaintiffs cite no authority for either argument and does not dispute that each of them served untimely responses.

FIE has demonstrated that each Plaintiff was properly served with Requests for Production, Set Four, and that each Plaintiff served untimely responses. Thus, the court agrees with FIE that each Plaintiff has waived his right to assert objections in his responses.

For these reasons, FIE’s motion to compel further responses, without objection from Chang is granted. FIE’s motion to compel further responses, without objection from Lo is granted.

Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., ; 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., ; 2023.010 (d).)

FIE requests $517.65 in sanctions in connection with each motion. Zapf attests in support of this request that her billing rate is $190 per hour and that she billed 1.4 hours in preparing each motion. (see Zapf Chang Decl. ¶¶ 6-7.) Zapf further attests that she anticipates spending another hour preparing each reply and attending the hearing on these motions. (Id.)

The court is inclined to award sanctions against Plaintiffs and finds the requested amounts reasonable. Thus, FIE’s request for sanctions against Chang is granted. FIE’s request for sanctions against Lo is also granted.

Conclusion

FIE’s motion is granted. FIE’s request for sanctions against Chang is also granted in the amount of $517.65. Chang is to provide verified supplemental responses, without objection, and to produce documents within 30 days. FIE is to give notice.

FIE’s motion is granted. FIE’s request for sanctions against Lo is also granted in the amount of $517.65. Lo is to provide verified supplemental responses, without objection, and to produce documents within 30 days. FIE is to give notice.



Case Number: ****0876    Hearing Date: February 26, 2021    Dept: 37

HEARING DATE: February 26, 2021

CASE NUMBER: ****0876

CASE NAME: Wild Chang, et al. v. Farmers Insurance Company Inc., et al.

TRIAL DATE: April 27, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Compel Further Responses to Special Interrogatories, Set Four from Wild Chang

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Wild Chang

OPPOSITION: Combined opposition February 16, 2021 late filed

REPLY: February 17, 2021

TENTATIVE: FIE’s motion is granted. FIE’s request for sanctions against Chang is also granted in the amount of $479.65. Chang is to provide verified supplemental responses, without objection to FIE’s Special Interrogatories, Set Four within 30 days. FIE is to give notice.

MOTION: Defendant’s Motion to Compel Further Responses to Special Interrogatories, Set Four from Kenneth Lo

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Kenneth Lo

OPPOSITION: Combined opposition February 16, 2021late filed

REPLY: February 17, 2021

TENTATIVE: FIE’s motion is granted. FIE’s request for sanctions against Lo is also granted in the amount of $479.65. Lo is to provide verified supplemental responses, without objection to FIE’s Special Interrogatories, Set Four within 30 days. FIE is to give notice.

Background

This is an insurance coverage dispute arising in connection with property located at 2798 Native Avenue, Rowland Heights, California, 91748. (the “Property”). Plaintiff Wild Chang (“Chang”) alleges that in or about 1994, he had the property insured through Defendant, Farmer’s Insurance Exchange Company, Inc. (“Farmers”) According to the Complaint, the Property suffered fire damage in 2014, after which Farmers allegedly failed to properly investigate the damage and failed to properly assess the fair value of repairs required to the Property. Specifically, the Complaint alleges that although Chang made repeated requests for accommodation while the Property was being repaired so that he and his 13-year-old son could have a place to live and that in response Farmers allegedly failed to comply with these reasonable requests. Finally, Farmers allegedly concluded investigation into the Property’s fire damage by sending a check for $19,925.91 in compensation, which was allegedly far under the estimated restoration costs of $128,202.99 to $145,881.84. The Complaint also names as a defendant moving party, Fire Insurance Exchange. (“FIE”)

Plaintiffs Chang and Kenneth Lo’s (“Lo”) Complaint alleges the following causes of action: (1) breach of implied covenant of good faith and fair dealing, (2) breach of contract, (3) unfair business practices (Business and Professions Code ; 17200), (4) intentional infliction of emotional distress, (5) breach of fiduciary duty, (6) professional negligence. Defendants Fire Insurance Exchange Corporation (“FIE”) and Stacy Chern (“Chern”) are also named in the Complaint. The Complaint alleges that Chern is liable for acting in bad faith by threatening to terminate Plaintiffs’ insurance in the course of investigation into the fire damage rather than properly investigate the damage.

On April 14, 2017, Plaintiffs filed a First Amended Complaint (“FAC”), alleging the same causes of action.

On August 31, 2017, Plaintiffs filed a Second Amended Complaint (“SAC”). The SAC only alleges the following four causes of action: (1) tortious breach of implied covenant of good faith and fair dealing, (2) breach of contract, (3) unfair business practices (Business and Professions Code ; 17200), (4) professional negligence.

FIE now moves to compel each Plaintiff to provide further responses to Special Interrogatories, Set Four without objection. Plaintiffs oppose the motions.

Procedural History

FIE served each Plaintiff with Special Interrogatories, Set Four on May 1, 2020. (see Declaration of Caitlin R. Zapf in Support of Motion to Compel Further Responses to Special Interrogatories from Wild Chang (“Zapf Chang Decl.”), ¶ 3, Ex. A.) Each Plaintiff served his responses on January 11, 2021. (Zapf Chang Decl. ¶ 4, Ex. B.)

Meet and Confer Efforts

A motion to compel further responses “shall be accompanied by a meet and confer declaration.”  (Code Civ. Proc., ;; 2030.300, subd. (b)(1).)  The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., ; 2016.040.)  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel….  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).)  

On January 11, 2021, FIE’s counsel Caitlin Zapf sent meet and confer letters to Plaintiffs stating that their objections were untimely and requesting Plaintiffs’ availability for an Informal Discovery Conference. (“IDC”) (Zapf Chang Decl. ¶ 5, Ex. C.) Zapf sent follow-up meet and confer letters on January 14, 2021 and January 19, 2021. (Id.)

The Zapf Declaration is sufficient for purposes of Code of Civil Procedure, section 2030.300.

Discussion

  1. Legal Authority

On receipt of responses to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (Code Civ. Proc., ; 2030.300, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

  1. Timeliness

Pursuant to Code of Civil Procedure section 2030.300, subdivision (c), a motion to compel further responses to interrogatories must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., ;; 1013, subd. (a); 2030.300, subd. (c).) The 45-day requirement of Code of Civil Procedure, section 2030.300, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (Sexton).)

Plaintiffs each served their responses to Special Interrogatories, Set Four on January 11, 2021. Thus, FIE’s motion to compel deadline was February 25, 2021. FIE’s motions were filed on January 27, 2021 and are thus timely.

  1. Analysis

FIE contends that each Plaintiff must be ordered to serve further responses to Special Interrogatories, Set Four without objection because each Plaintiff served his responses six months late and thus, waived all objections. (see FIE Motion to Compel Further Responses to Special Interrogatories from Chang (“FIE Chang Motion”), 3-4.)

Plaintiffs submit a combined opposition to both motions. Plaintiff’s opposition does not dispute that they were timely served with FIE’s discovery or that each of time served untimely responses on January 11, 2021. Instead, Plaintiff argues that FIE’s motions should be denied because “FIE’s Motions are extensions of frauds by Farmer’s,” and that additionally, Plaintiff’s pending motion to consolidate, if granted, would make FIE’s motions moot. (Opposition, 3-4.) However, Plaintiffs’ arguments fail, as Plaintiffs cite no authority for either argument and does not dispute that each of them served untimely responses.

FIE has demonstrated that each Plaintiff was properly served with Special Interrogatories, Set Four, and that each Plaintiff served untimely responses. Thus, the court agrees with FIE that each Plaintiff has waived his right to assert objections in his responses.

For these reasons, FIE’s motion to compel further responses, without objection from Chang is granted. FIE’s motion to compel further responses, without objection from Lo is granted.

Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., ; 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., ; 2023.010 (d).)

FIE requests $479.65 in sanctions in connection with each motion. Zapf attests in support of this request that her billing rate is $190 per hour and that she billed 1.2 hours in preparing each motion. (see Zapf Chang Decl. ¶¶ 6-7.) Zapf further attests that she anticipates spending another hour preparing each reply and attending the hearing on these motions. (Id.)

The court is inclined to award sanctions against Plaintiffs and finds the requested amounts reasonable. Thus, FIE’s request for sanctions against Chang is granted. FIE’s request for sanctions against Lo is also granted.

Conclusion

FIE’s motion is granted. FIE’s request for sanctions against Chang is also granted in the amount of $479.65. Chang is to provide verified supplemental responses, without objection to FIE’s Special Interrogatories, Set Four within 30 days. FIE is to give notice.

FIE’s motion is granted. FIE’s request for sanctions against Lo is also granted in the amount of $479.65. Lo is to provide verified supplemental responses, without objection to FIE’s Special Interrogatories, Set Four within 30 days. FIE is to give notice.



Case Number: ****0876    Hearing Date: February 25, 2021    Dept: 37

HEARING DATE: February 25, 2021

CASE NUMBER: ****0876

CASE NAME: Wild Chang, et al. v. Farmers Insurance Company Inc., et al.

TRIAL DATE: April 27, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Compel Responses to Form Interrogatories, Set One from Wild Chang

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Wild Chang

OPPOSITION: Combined opposition February 10, 2021; Supplemental Opposition February 24, 2021

REPLY: February 17, 2021

TENTATIVE: FIE’s motion to compel further responses, without objection from Chang is granted. FIE’s request for sanctions against Chang is also granted in the amount of $669.65. Chang is to provide verified supplemental responses without objection within 30 days. FIE is to give notice.

MOTION: Defendant’s Motion to Compel Responses to Form Interrogatories, Set One from Kenneth Lo

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Wild Chang

OPPOSITION: Combined opposition February 10, 2021; Supplemental Opposition by Kenneth Lo February 24, 2021

REPLY: February 17, 2021

TENTATIVE: FIE’s motion to compel further responses, without objection from Lo is granted. FIE’s request for sanctions against Lo is also granted in the amount of $669.65. Lo is to provide verified supplemental responses without objection within 30 days. FIE is to give notice.

Background

This is an insurance coverage dispute arising in connection with property located at 2798 Native Avenue, Rowland Heights, California, 91748. (the “Property”). Plaintiff Wild Chang (“Chang”) alleges that in or about 1994, he had the property insured through Defendant, Farmer’s Insurance Exchange Company, Inc. (“Farmers”) According to the Complaint, the Property suffered fire damage in 2014, after which Farmers allegedly failed to properly investigate the damage and failed to properly assess the fair value of repairs required to the Property. Specifically, the Complaint alleges that although Chang made repeated requests for accommodation while the Property was being repaired so that he and his 13-year-old son could have a place to live and that in response Farmers allegedly failed to comply with these reasonable requests. Finally, Farmers allegedly concluded investigation into the Property’s fire damage by sending a check for $19,925.91 in compensation, which was allegedly far under the estimated restoration costs of $128,202.99 to $145,881.84. The Complaint also names as a defendant moving party, Fire Insurance Exchange. (“FIE”)

Plaintiffs Chang and Kenneth Lo’s (“Lo”) Complaint alleges the following causes of action: (1) breach of implied covenant of good faith and fair dealing, (2) breach of contract, (3) unfair business practices (Business and Professions Code ; 17200), (4) intentional infliction of emotional distress, (5) breach of fiduciary duty, (6) professional negligence. Defendants Fire Insurance Exchange Corporation (“FIE”) and Stacy Chern (“Chern”) are also named in the Complaint. The Complaint alleges that Chern is liable for acting in bad faith by threatening to terminate Plaintiffs’ insurance in the course of investigation into the fire damage rather than properly investigate the damage.

On April 14, 2017, Plaintiffs filed a First Amended Complaint (“FAC”), alleging the same causes of action.

On August 31, 2017, Plaintiffs filed a Second Amended Complaint (“SAC”). The SAC only alleges the following four causes of action: (1) tortious breach of implied covenant of good faith and fair dealing, (2) breach of contract, (3) unfair business practices (Business and Professions Code ; 17200), (4) professional negligence.

FIE now moves to compel each Plaintiff to provide further responses to Form Interrogatories, Set One without objection. Plaintiffs oppose the motions.

Procedural History

FIE served each Plaintiff with Form Interrogatories, Set One on May 1, 2020. (see Declaration of Caitlin R. Zapf in Support of Motion to Compel Further Responses to Form Interrogatories from Wild Chang (“Zapf Chang Decl.”), ¶ 3, Ex. A.) Each Plaintiff served his responses on January 11, 2021. (Zapf Decl. ¶ 4, Ex. B.)

Meet and Confer Efforts

A motion to compel further responses “shall be accompanied by a meet and confer declaration.”  (Code Civ. Proc., ;; 2030.300, subd. (b)(1).)  The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.  (Code Civ. Proc., ; 2016.040.)  “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel….  Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.”  (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).)  

On January 11, 2021, FIE’s counsel Caitlin Zapf sent meet and confer letters to Plaintiffs stating that their objections were untimely and requesting Plaintiffs’ availability for an Informal Discovery Conference. (“IDC”) (Zapf Chang Decl. ¶ 5, Ex. C.) Zapf sent follow-up meet and confer letters on January 14, 2021 and January 19, 2021. (Id.)

The Zapf Declaration is sufficient for purposes of Code of Civil Procedure, section 2030.300.

Discussion

  1. Legal Authority

On receipt of responses to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection is without merit or too general or an answer is evasive or incomplete. (Code Civ. Proc., ; 2030.300, subd. (a)(1)-(3).) The moving party must also include reasons why further answers should be ordered: legal or factual arguments why the answers given were incomplete or nonresponsive, or the objections invalid. (Cal. Rules of Court, rule 3.1345(c).) The responding party has the burden to justify objections in response to a motion filed to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

  1. Timeliness

Pursuant to Code of Civil Procedure section 2030.300, subdivision (c), a motion to compel further responses to interrogatories must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., ;; 1013, subd. (a); 2030.300, subd. (c).) The 45-day requirement of Code of Civil Procedure, section 2030.300, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (Sexton).)

Plaintiffs each served their responses to Form Interrogatories, Set One on January 11, 2021. Thus, FIE’s motion to compel deadline was February 25, 2021. FIE’s motions were filed on January 27, 2021 and are thus timely.

  1. Analysis

FIE contends that each Plaintiff must be ordered to serve further responses to Form Interrogatories, Set One without objection because each Plaintiff served his responses six months late and thus, waived all objections. (see FIE Motion to Compel Further Responses to Form Interrogatories from Chang (“FIE Chang Motion”), 3-4.)

Plaintiffs submit a combined opposition to both of FIE’s motions. In their opposition, Plaintiffs contend that they are “in the process of preparing full responses without objection” and “hope to have them completed before the hearing of this motion.” (Opposition, 1-2.) Plaintiffs do not dispute that their responses were untimely but instead contend that “in light of their personal circumstances,” any request for sanctions be denied. (Id.)

Well after the deadline for filing oppositions and even after the replies, on February 24, the day before the hearing, each Plaintiff filed a “SUPPLEMENTAL OPPOSITION TO MOTION TO COMPEL AND AMENDED RESPONSES TO FORM INTERROGATORIES, SET ONE.” Those documents are untimely and unauthorized briefings on the motion and will not be considered by the court.

FIE has demonstrated that each Plaintiff was properly served with Form Interrogatories, Set One, and that each Plaintiff served untimely responses. Thus, the court agrees with FIE that each Plaintiff has waived his right to assert objections in his responses.

For these reasons, FIE’s motion to compel further responses, without objection from Chang is granted. FIE’s motion to compel further responses, without objection from Lo is granted.

Monetary Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., ; 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., ; 2023.010 (d).)

FIE requests $669.65 in sanctions in connection with each motion. Zapf attests in support of this request that her billing rate is $190 per hour and that she billed 2.2 hours in preparing each motion. (see Zapf Chang Decl. ¶ 6.) Zapf further attests that she anticipates spending another hour preparing each reply and attending the hearing on these motions. (Id.)

The court is inclined to award sanctions against Plaintiffs and finds the requested amounts reasonable. Thus, FIE’s request for sanctions against Chang is granted. FIE’s request for sanctions against Lo is also granted.

Conclusion

FIE’s motion to compel further responses, without objection from Chang is granted. FIE’s request for sanctions against Chang is also granted in the amount of $669.65. Chang is to provide verified supplemental responses without objection within 30 days. FIE is to give notice.

FIE’s motion to compel further responses, without objection from Lo is granted. FIE’s request for sanctions against Lo is also granted in the amount of $669.65. Lo is to provide verified supplemental responses without objection within 30 days. FIE is to give notice.



Case Number: ****0876    Hearing Date: October 28, 2020    Dept: 37

HEARING DATE: October 28, 2020

CASE NUMBER: ****0876

CASE NAME: Wild Chang, et al. v. Farmers Insurance Company Inc., et al.

TRIAL DATE: April 27, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Compel Responses to Special Interrogatories, Set Three from Plaintiff Kenneth Lo

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Kenneth Lo

OPPOSITION: October 14, 2020

REPLY: October 21, 2020

TENTATIVE: FIE’s Motion to Compel Responses to Special Interrogatories, Set Three from Lo is granted. Lo is to serve verified responses 30 days. Sanctions are awarded against Plaintiff in the amount of $458, payable within 60 days of this date. FIE is to give notice.

MOTION: Defendant’s Motion to Deem Requests for Admissions, Set One Admitted as to Plaintiff Kenneth Lo

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Kenneth Lo

OPPOSITION: October 14, 2020 [

REPLY: October 21, 2020

TENTATIVE: FIE’s Motion to Deem Requests for Admission, Set One admitted as to Lo is granted. Requests for Admission, Set One is deemed admitted as to Lo. Sanctions are awarded against Plaintiff in the amount of $458, payable within 60 days of this date. FIE is to give notice.

MOTION: Defendant’s Motion to Compel Further Responses to Special Interrogatories, Set Two from Plaintiff Wild Chang

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Wild Chang

OPPOSITION: October 14, 2020

REPLY: October 21, 2020

TENTATIVE: FIE’s Motion to Compel Further Responses to Special Interrogatories, Set Two from Chang is granted. Chang is to serve verified, supplemental responses within 30 days. FIE’s request for sanctions is denied. FIE is to give notice.

MOTION: Defendant’s Motion to Compel Responses to Special Interrogatories, Set Three from Plaintiff Wild Chang

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Wild Chang

OPPOSITION: October 14, 2020

REPLY: October 21, 2020

TENTATIVE: FIE’s Motion to Compel Responses to Special Interrogatories, Set Three from Chang is granted. Chang is to serve verified responses 30 days. Sanctions are awarded against Plaintiff in the amount of $458, payable within 60 days of this date. FIE is to give notice.

MOTION: Defendant’s Motion to Compel Responses to Requests for Production, Set Three from Plaintiff Wild Chang

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Wild Chang

OPPOSITION: October 14, 2020

REPLY: October 21, 2020

TENTATIVE: FIE’s Motion to Compel Responses to Requests for Production, Set Three from Chang is granted. Chang is to serve verified responses within 30 days and produce responsive documents. Sanctions are awarded against Plaintiff in the amount of $458, payable within 60 days of this date. FIE is to give notice.

MOTION: Defendant’s Motion to Deem Requests for Admissions, Set One Admitted as to Plaintiff Wild Chang

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Wild Chang

OPPOSITION: October 14, 2020

REPLY: October 21, 2020

TENTATIVE: FIE’s Motion to Deem Requests for Admission, Set One admitted as to Chang is granted. Requests for Admission, Set One is deemed admitted as to Chang. Sanctions are awarded against Plaintiff in the amount of $458, payable within 60 days of this date. FIE is to give notice.

MOTION: Defendant’s Motion to Compel Further Responses to Requests for Production, Set Two from Plaintiff Wild Chang

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Wild Chang

OPPOSITION: October 14, 2020

REPLY: October 21, 2020

TENTATIVE: FIE’s Motion to Compel Further Responses to Requests for Production, Set Two from Chang is granted. Chang is to serve verified, supplemental responses within 30 days and produce responsive documents. FIE’s request for sanctions is denied. FIE is to give notice.

MOTION: Defendant’s Motion to Compel Responses to Requests for Production, Set Three from Plaintiff Kenneth Lo

MOVING PARTY: Defendant, Fire Insurance Exchange

OPPOSING PARTY: Plaintiff, Kenneth Lo

OPPOSITION: October 14, 2020

REPLY: October 21, 2020

TENTATIVE: FIE’s Motion to Compel Responses to Requests for Production, Set Three from Lo is granted. Lo is to serve verified responses within 30 days and produce responsive documents. Sanctions are awarded against Plaintiff in the amount of $458, payable within 60 days of this date. FIE is to give notice.

Background

This is an insurance coverage dispute arising in connection with property located at 2798 Native Avenue, Rowland Heights, California, 91748. (the “Property”). Plaintiff Wild Chang (“Chang”) alleges that in or about 1994, he had the property insured through Defendant, Farmer’s Insurance Exchange Company, Inc. (“Farmers”) According to the Complaint, the Property suffered fire damage in 2014, after which Farmers allegedly failed to properly investigate the damage and failed to properly assess the fair value of repairs required to the Property. Specifically, the Complaint alleges that although Chang made repeated requests for accommodation while the Property was being repaired so that he and his 13 year old son could have a place to live and that in response, Farmers allegedly failed to comply with these reasonable requests. Finally, Farmers allegedly concluded investigation into the Property’s fire damage by sending a check for $19,925.91 in compensation, which was allegedly far under the estimated restoration costs of $128,202.99 to $145,881.84.

Plaintiffs Chang and Kenneth Lo’s (“Lo”) Complaint alleges the following causes of action: (1) breach of implied covenant of good faith and fair dealing, (2) breach of contract, (3) unfair business practices (Business and Professions Code ; 17200), (4) intentional infliction of emotional distress, (5) breach of fiduciary duty, (6) professional negligence. Defendants Fire Insurance Exchange Corporation (“FIE”) and Stacy Chern (“Chern”) are also named in the Complaint. The Complaint alleges that Chern is liable for acting in bad faith by threatening to terminate Plaintiffs’ insurance in the course of investigation into the fire damage rather than properly investigate the damage.

On April 14, 2017, Plaintiffs filed a First Amended Complaint (“FAC”), alleging the same causes of action.

On August 31, 2017, Plaintiffs filed a Second Amended Complaint (“SAC”). The SAC only alleges the following four causes of action: (1) tortious breach of implied covenant of good faith and fair dealing, (2) breach of contract, (3) unfair business practices (Business and Professions Code ; 17200), (4) professional negligence.

On October 31, 2018, both Plaintiffs filed substitutions of attorney appointing Majid Safie as their attorney to replace Paul Fitzgerald. On June 12, 2019, Plaintiffs filed a Notice of Association of Attorney indicating that their current counsel, Robert Moest, has been associated into the action on behalf of both Plaintiffs. On July 2, 2019, Plaintiff Chang filed a substitution of attorney for Mr. Moest to replace Ms. Safaie as counsel of record. On October 2, 2020, Plaintiff Lo filed a substitution of attorney for Mr. Moest to replace Ms. Safaie as counsel of record. For some period in 2019, the files reflect Mr. Chang as being self-represented and Mr. Lo continuing to be represented by Mr. Moest, but the court file does not show a substitution filed by Plaintiff Chang after the July 2, 2019 substitution.

On September 11, 2019, all parties stipulated to continue the trial in this action from October 22, 2019 to May 4, 2020 due to Plaintiff Chang’s medical condition and subsequent need for extensive rehabilitation.

FIE now moves to deem Requests for Admissions, Set One admitted as to Plaintiffs Lo and Chang. Additionally, FIE moves to compel further responses to Requests for Production and Special Interrogatories, Sets Two from Chang. FIE also moves to compel responses to Special Interrogatories, Sets Three from Lo and Chang, as well as responses to Requests for Production Set Threes from Lo and Chang.

Plaintiffs oppose all motions and have filed a combined opposition as to all motions. FIE has filed a combined reply in support of all motions.

Because the parties have filed a combined opposition and combined reply, the court’s ruling will discuss all motions together.

Procedural History

FIE served Chang with Requests for Production, Set Two and Special Interrogatories, Set Two on May 8, 2019. (Declaration of Caitlin R. Zapf (“Zapf”) in support of Motion to Compel Further Responses to Requests for Production, Set Two (“Zapf RFP.2 Decl.”) from Chang, ¶ 3, Zapf Declaration in Support of Motion to Compel Further Responses to Special Interrogatories, Set Two (“Zapf SROG.2 Decl”) from Chang, ¶ 3.) FIE served Chang and Lo with ach of the remaining sets of discovery on August 19, 2019. (see generally Zapf Declaration in support of motions, ¶ 3.)

Chang served responses to Special Interrogatories, Set Two on June 11, 2019 which consisted only of objections. (Zapf SROG.2 Decl., ¶ 4, Exhibit B.) Chang also served responses to Requests for Production, Set Two on June 11, 2019, which also contained only objections. (Zapf RFP.2 Decl., ¶ 4, Exhibit B.) On June 24, 2019, Chang served additional responses to both Special Interrogatories, Set Two and Requests for Production, Set Two. (Zapf SROG.2 Decl. ¶ 5, Zapf RFP.2 Decl. ¶ 5.) Chang served second amended responses to both Requests for Production, Set Two and Special Interrogatories, Set Two on August 7, 2019. (Zapf SROG.2 Decl. ¶ 7, Exhibit E; Zapf RFP.2 Decl., ¶ 7.)

Chang and Lo have not responded to the remaining sets of discovery to date. (see, e.g. Zapf Declaration in Support of Motion to Compel Responses to Special Interrogatories, Set Three from Lo, ¶ 10.)

 

The Parties’ Meet and Confer Efforts

As to the two motions to compel further responses from Chang, Zapf attests that on July 11, 2019, she sent a meet and confer letter addressing the deficiencies in Chang’s June 24, 2019 responses. (Zapf SROG.2 Decl., ¶ 6, Exhibit D.) Zapf sent another meet and confer letter on August 19, 2019 addressing the deficiencies in Chang’s amended responses served August 7, 2019. (Zapf SROG Decl. ¶ 8, Exhibit F.) On August 26, 2019, Chang, who was self-represented at the time, sent a meet and confer letter contesting the issues raised in Zapf’s meet and confer letter. (Zapf SROG Decl. ¶ 9.) Zapf responded to Chang’s letter on the same day. (Zapf Decl. ¶ 10, Exhibit H.)

Additionally, Zapf attests that she sent a final meet and confer letter on May 1, 2020 advising Plaintiffs that FIE would bring motions to compel further responses as to Requests for Production, Set Two and Special Interrogatories, Set Two, and that FIE would also move to compel initial responses as to all discovery served on August 19, 2019. (Zapf Decl. ¶ 15.) Zapf attests that Plaintiffs have not responded to her August 26, 2019 or May 1, 2020 meet and confer letters. (Zapf Decl. ¶¶ 10, 15.)

Zapf filed a declaration in support of the motions to compel further responses by Mr. Lo, and that motion described similar efforts to meet and confer respecting those motions.

The court finds that the Zapf Declarations are sufficient to demonstrate FIE’s compliance with its statutory meet and confer obligations with regard to its Motions to Compel Further Responses..

Discussion

FIE contends that further responses to Requests for Production, Set Two and Special Interrogatories, Set Two are warranted because each set of discovery was properly served and seek basic information regarding Plaintiffs’ damages. FIE similarly contends that an order compelling initial responses to each of the above discussed sets of discovery is warranted because each of these sets of discovery seek basic information about Plaintiffs’ claims and Plaintiffs have repeatedly failed to provide this information since the commencement of this action.

Plaintiffs have filed one combined opposition to all motions to compel further responses, motions to compel responses, and motions to deem requests for admission admitted. Plaintiffs contend that each of the eight discovery motions before the court are “not necessary” because Plaintiffs planned to provide responses to all outstanding discovery “before the hearing of this motion.” (Opposition, 1-3.) Additionally, Plaintiffs contend that any delay in providing responses is entirely attributable to Chang’s medical condition and that as such, the timing of FIE’s discovery motions constitute bad faith because Chang started additional treatments shortly before these discovery motions were filed and thus could not have provided responses. (Opposition, 2-3.)

Chang attests in support of this opposition that in late 2019, he developed new symptoms following his previous heart surgery and was diagnosed with prostate cancer. (Chang Decl. ¶ 2.) Chang attests that he did not start radiation treatments due to additional testing required and complications from the COVID-19 pandemic. (Chang Decl. ¶ 4.) Further, Chang attests that his son had to withdraw from college to care for him through his treatment, but that because his son has since returned to college, he will not be able to conclude treatment until October 23, 2020. (Chang Decl. ¶ 5.) Finally, Chang attests that although he is “expected to recover many functions over time,” he has been told to expect impairments such as weakness and inability to concentrate for at least “six to eight weeks after treatment stops.” (Id.)

In reply, FIE contends that all discovery motions must be granted because Plaintiffs have not served further or initial responses to any of the sets of discovery as of the filing of FIE’s reply. (Reply, 2-3; Zapf Declaration in Support of Reply, ¶ 2.) Additionally, FIE contends that Chang’s illness is no excuse for Plaintiffs not to respond to discovery because the discovery has been pending since 2019, Lo does not attest that he is ill or otherwise unable to respond to discovery, and Plaintiffs are currently moving for leave to file a Third Amended Complaint, which is contradictory to Chang’s apparent contention that he is unable to engage in discovery. (Reply, 4-5.)

The court agrees with FIE that each of its discovery motions must be granted. FIE has demonstrated that its discovery was appropriately served on each of Chang and Lo. As to FIE’s motions to compel further responses, FIE has demonstrated that it met and conferred with Chang regarding his unsatisfactory responses and that Chang has not served supplemental responses. As to the motions to compel initial responses or to deem requests for admissions admitted, FIE has demonstrated that no responses have been received. Further, the court agrees with FIE that Chang’s illness, although unfortunate, does not absolve him of the need to respond to discovery which has been pending since May 2019 and August 2019. Additionally, Plaintiffs have submitted no evidence demonstrating that Lo is somehow unable to respond to discovery, so Lo must be ordered to respond.

Monetary Sanctions

FIE requests monetary sanctions in the following amounts as to each discovery motion before the court:

MTC Further Responses to RFP to Chang (Set Two): monetary sanctions in the amount of $705.00;

• MTC Further Responses to Special Interrogatories to Chang (Set Two): monetary sanctions in the amount of $819.00;

• MTC Chang’s Special Interrogatories (Set Three): monetary sanctions in the amount of $458.00;

• MTC Chang’s RFP (Set Three): monetary sanctions in the amount of $458.00;

• MTC Chang’s RFA (Set One): monetary sanctions in the amount of $458.00;

• MTC Lo’s Special Interrogatories (Set Three): monetary sanctions in the amount of $458.00;

• MTC Lo’s RFP (Set Three): monetary sanctions in the amount of $458.00;

• MTC Lo’s RFA (Set One): monetary sanctions in the amount of $458.00;

(Reply, 6.)

In light of the procedural history in this action and the circumstances attested to in Chang’s Declaration in support of Plaintiffs’ opposition, the court does not sanction Chang as to the motions to compel further responses, finding that doing so would be unjust. However, the court finds that some award of sanctions is warranted as to the instant discovery dispute at large. The court will award the remaining requests for sanctions against the Plaintiff in each motion as outlined above with regard to each of the motions to compel initial responses and motions to deem requests for admissions admitted. All sanctions are payable within 60 days from this date.

Conclusion

FIE’s Motion to Deem Requests for Admission, Set One admitted as to Lo is granted. Requests for Admission, Set One is deemed admitted as to Lo. Sanctions are awarded in the amount of $458. FIE is to give notice.

FIE’s Motion to Deem Requests for Admission, Set One admitted as to Chang is granted. Requests for Admission, Set One is deemed admitted as to Chang. Sanctions are awarded in the amount of $458. FIE is to give notice.

FIE’s Motion to Compel Responses to Special Interrogatories, Set Three from Lo is granted. Lo is to serve verified responses 30 days. Sanctions are awarded in the amount of $458. FIE is to give notice.

FIE’s Motion to Compel Responses to Special Interrogatories, Set Three from Chang is granted. Chang is to serve verified responses 30 days. Sanctions are awarded in the amount of $458. FIE is to give notice.

FIE’s Motion to Compel Responses to Requests for Production, Set Three from Chang is granted. Chang is to serve verified responses within 30 days and produce responsive documents. Sanctions are awarded in the amount of $458. FIE is to give notice.

FIE’s Motion to Compel Responses to Requests for Production, Set Three from Lo is granted. Lo is to serve verified responses within 30 days and produce responsive documents. Sanctions are awarded in the amount of $458. FIE is to give notice.

FIE’s Motion to Compel Further Responses to Special Interrogatories, Set Two from Chang is granted. Chang is to serve verified, supplemental responses within 30 days. FIE’s request for sanctions is denied. FIE is to give notice.

FIE’s Motion to Compel Further Responses to Requests for Production, Set Two from Chang is granted. Chang is to serve verified, supplemental responses within 30 days and produce responsive documents. FIE’s request for sanctions is denied. FIE is to give notice.



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