This case was last updated from Los Angeles County Superior Courts on 05/25/2019 at 03:47:05 (UTC).

YAN LI VS APRIL LIN

Case Summary

On 12/12/2017 YAN LI filed a Property - Other Real Property lawsuit against APRIL LIN. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judge overseeing this case is GLORIA WHITE-BROWN. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9873

  • Filing Date:

    12/12/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GLORIA WHITE-BROWN

 

Party Details

Plaintiffs and Cross Defendants

MESARICA MANAGEMENT LLC

LI YAN

STATE FARM GENERAL INS. CO.

LIN PEIZHEN

YOUNG LILI

Defendants and Cross Plaintiffs

CHENG JUI YUAN

HAN REALTY

MOON MANAGEMENT CONSULTING LLC

LI SHIGANG

LIN APRIL

YANG ZHIGANG

HAN INTERNATIONAL GROUP INC. DBA HAN REALTY

Attorney/Law Firm Details

Plaintiff Attorneys

PLEASANT JOSEPH M

FU DAVID DAI-WUNG

Defendant Attorneys

ALKANA EUGENE

CHEN PETER C ESQ.

Cross Plaintiff Attorney

HAND ESQ. J. THOMAS

 

Court Documents

Civil Case Cover Sheet

12/12/2017: Civil Case Cover Sheet

Unknown

12/12/2017: Unknown

Summons

12/12/2017: Summons

Complaint

12/12/2017: Complaint

Notice of Case Management Conference

12/14/2017: Notice of Case Management Conference

Unknown

12/15/2017: Unknown

Unknown

12/15/2017: Unknown

Unknown

12/15/2017: Unknown

Unknown

12/15/2017: Unknown

Unknown

12/15/2017: Unknown

Cross-Complaint

1/12/2018: Cross-Complaint

Declaration

1/12/2018: Declaration

Unknown

2/16/2018: Unknown

Unknown

2/16/2018: Unknown

Unknown

2/16/2018: Unknown

Unknown

2/27/2018: Unknown

Unknown

3/2/2018: Unknown

Unknown

3/5/2018: Unknown

66 More Documents Available

 

Docket Entries

  • 05/23/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name) (DOE 1 ZHIGANG YANG); Filed by Yan Li (Plaintiff); Mesarica Management, LLC (Plaintiff)

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  • 02/28/2019
  • Docketat 08:30 AM in Department J, Gloria White-Brown, Presiding; Case Management Conference - Held - Continued

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  • 02/28/2019
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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  • 02/25/2019
  • DocketRequest for Dismissal; Filed by Yan Li (Plaintiff); Mesarica Management, LLC (Plaintiff)

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  • 02/13/2019
  • DocketNotice (Notice of Unavailability of Counsel); Filed by April Lin (Cross-Complainant); Shigang Li (Cross-Complainant); Han International Group, Inc. (Cross-Complainant) et al.

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  • 02/13/2019
  • DocketCase Management Statement; Filed by State Farm General Ins. Co. (Plaintiff in Intervention)

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  • 02/04/2019
  • DocketNotice of Rejection - Pleadings; Filed by Clerk

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  • 01/30/2019
  • DocketMinute Order; Filed by Clerk

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  • 01/02/2019
  • DocketNotice (Notice of Case Reassignment); Filed by Yan Li (Plaintiff); Mesarica Management, LLC (Plaintiff)

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  • 12/26/2018
  • DocketAnswer; Filed by Han International Group, Inc. (Defendant); April Lin (Defendant); Shigang Li (Defendant) et al.

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98 More Docket Entries
  • 12/15/2017
  • DocketRtn of Service of Summons & Compl; Filed by Yan Li (Plaintiff); Mesarica Management, LLC (Plaintiff)

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  • 12/15/2017
  • DocketRtn of Service of Summons & Compl; Filed by Yan Li (Plaintiff); Mesarica Management, LLC (Plaintiff)

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  • 12/15/2017
  • DocketRtn of Service of Summons & Compl; Filed by Yan Li (Plaintiff); Mesarica Management, LLC (Plaintiff)

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  • 12/15/2017
  • DocketRtn of Service of Summons & Compl; Filed by Yan Li (Plaintiff); Mesarica Management, LLC (Plaintiff)

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  • 12/14/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 12/12/2017
  • DocketComplaint; Filed by Yan Li (Plaintiff); Mesarica Management, LLC (Plaintiff)

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  • 12/12/2017
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 12/12/2017
  • DocketSummons (on Complaint)

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  • 12/12/2017
  • DocketCivil Case Cover Sheet

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  • 03/08/2011
  • DocketReply To Motion; Filed by Yan Li (Plaintiff)

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Tentative Rulings

Case Number: ****9873 Hearing Date: May 13, 2022 Dept: R

Plaintiffs Yan Li and Mesarica Management LLC’s Motion for Monetary Sanctions of $4,387.00 Against Defendant April Lin’s Counsel J ack W. Chao, and Pleadings Sanctions to Strike the Motion for Summary Judgment Filed by Defendant April Lin Set for Hearing on May 2, 2022

Responding Party: Defendant, April Lin

Tentative Ruling

Plaintiffs Yan Li and Mesarica Management LLC’s Motion for Monetary Sanctions of $4,387.00 Against Defendant April Lin’s Counsel J ack W. Chao, and Pleadings Sanctions to Strike the Motion for Summary Judgment Filed by Defendant April Lin Set for Hearing on May 2, 2022 is GRANTED IN PART. The Motion for Summary Judgment is TAKEN OFF CALENDAR.

Background

This case arises from alleged misrepresentations in leasing a property.

Plaintiff Yan Li (“Plaintiff”) owns the property located at 20711 E. Mesarica Road in San Dimas (“Property”) and manages same through Plaintiff Mesarica Management, LLC. On or about 4/5/16, Yan entered into a “Lease Listing Agreement—Exclusive Authorization to Lease or Rent” with Han International Group Inc. dba Han Realty (“Han”). Plaintiff alleges that Han’s supervising broker, April Lin (“A. Lin”), represented to Plaintiff that her friend Shigang Li (“S. Li”) was interested in leasing the Property for himself and his son to use when they visited from overseas, and that S. Li was also looking to operate a consulting business on the Property. When Plaintiff objected to S. Li as a tenant for his lack of credit history in the United States, A. Lin promised she would also be a tenant on the lease. Plaintiff contends that A. Lin, S. Lim Jui Yan Cheng (“Cheng”) and Moon Management Consulting, LLC (“Moon”) failed to disclose their intent to operate short-term rentals and use the Property to operate businesses for profit, including social events such as parties and weddings. Plaintiff alleges that the Property was severely damaged during a 3/25/17 social event.

On December 12, 2017, Plaintiff filed a complaint asserting causes of action against Defendants A. Lin, Han, S. Li, Cheng, Moon and Does 1-10 for:

1. Fraud,

2. Breach of Contract—Listing Agreement,

3. Breach of Fiduciary Duty,

4. Professional Negligence,

5. Breach of Contract—Lease Agreement, and

6. Negligence

On October 19, 2018, the court issued its Ruling on Lily Young’s Demurrer to the First Amended Cross-Complaint (“FACC”) where it SUSTAINED the first through fifth causes of action reasoning that: Defendant April Lin as the employing broker and Han’s principal officer had a duty to supervise their sales agent, Young, and has an obligation to exercise reasonable supervision over the activities of his or her salesperson. As such, “the knowledge that young had as Han’s sales agent would appear to be equally attributable to A. Lin as Han’s designated officer.”

On May 23, 2019, Plaintiff filed an Amendment to Complaint adding Zhigang Yang (“Defendant Yang”) as Doe 1.

On October 21, 2019, after taking Plaintiffs’ MSJ under submission, ruled as follows:

Plaintiffs Yan Li's and Mesarica Management, LLC's Motion for Summary Judgement is DENIED. Plaintiffs' Motion for Summary Adjudication is DENIED in its entirety as against Defendant Zhigang Yang. Plaintiffs' Motion for Summary Adjudication is otherwise DENIED in part (i.e., as to Issues Nos. 1 and 2) and GRANTED in part (i.e., as to Issues Nos. 3-6).

On July 8, 2020, Plaintiff filed its First Amended Complaint (“FAC”).

On December 24, 2020, Plaintiff filed discovery motions, specifically for:

1. Motion to Deem Request for Admissions Admitted,

2. Motion to Compel Discovery (not “Further Discovery”) Form Interrogatories, Set One, For Defendant Yang,

3. Request for Production of Documents, Set One, for Defendant Yang,

4. Motion to Compel Discovery (not “Further Discovery”) Special Interrogatories, Set One, for Defendant Yang.

On March 8, 2021, the court granted all four discovery motions and reduced the monetary award of sanctions.

On January 10, 2022, this court held the following: The Motion for Sanctions filed by Yan Li on 08/31/2021 as to Defendant Zhigang Yang for Misuse of the Discovery Process is Granted in Part. The Court grants the motion as to Terminating Sanctions (by striking Defendant’s Answer to the FAC and placing him in Default), but Denies Plaintiff's request for Monetary Sanctions.

On February 14, 2022, Defendant April Lin filed the Motion for Summary Judgment, or, in the Alternative, Motion for Summary Adjudication (which is the subject to the instant Motion).

On March 14, 2022, Plaintiffs filed the instant Motion.[1]

On March 18, 2022, Defendant filed her Opposition to the instant Motion.

On May 5, 2022, Plaintiffs filed a Reply.

The hearing on the instant Motion is scheduled for 05/13/2022. The MSJ is scheduled for 06/14/2022. The hearing on the Motion to Disqualify Counsel is scheduled for 08/02/2022.[2]

Legal Standard

Plaintiffs bring forth the instant Motion under Code of Civil Procedure (“CCP”) section 128.7.

An attorney or unrepresented party who presents a motion to the court makes an implied certification as to its legal and factual merit, which is subject to sanctions for violation of this certification under Code of Civil Procedure section 128.7. (Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619, 623.) The Court may impose sanctions for conduct that violates any one of the requirements set forth in Code of Civil Procedure section 128.7, subdivision (b). (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976.)

Code of Civil Procedure section 128.7, subdivision (b) provides:

(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Only “an attorney or unrepresented party may be sanctioned” under the statute. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.)

“Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. [Citation.]” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189.) “A claim is factually frivolous if it is ‘not well grounded in fact’ and is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’ [Citation.] In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ [Citations.]” (Id.) No showing of bad faith is required. (In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1221.)

“The California Legislature essentially sought to replicate rule 11 [of the Federal Rules of Civil Procedure] when it enacted section 128.7.” (Musaelian v. Adams (2009) 45 Cal.4th 512, 518, fn. 2.) As a result, federal case law construing rule 11 is persuasive authority on the meaning of Code of Civil Procedure section 128.7. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) Under rule 11, even though an action may not be frivolous when it is filed, it may become so if later-acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the client's claims. (See Childs v. State Farm Mutual Automobile Insurance Company (5th Cir. 1994) 29 F.3d 1018, 1024-1026.) As a result, a plaintiff's attorney cannot “just cling tenaciously to the investigation he had done at the outset of the litigation and bury his head in the sand.” (Id. at 1025.)

In addition, Code of Civil Procedure section 128.7 “contains a safe harbor provision. It requires the party seeking sanctions to serve on the opposing party, without filing or presenting it to the court, a notice of motion specifically describing the sanctionable conduct. Service of the motion initiates a 21-day ‘hold’ or ‘safe harbor’ period. [Citations.] During this time, the offending document may be corrected or withdrawn without penalty. If that occurs, the motion for sanctions ‘‘shall not’’ be filed. [Citations.] By mandating a 21-day safe harbor period to allow correction or withdrawal of an offending document, section 128.7 is designed to be remedial, not punitive. [Citation.]” (Li v. Majestic Industry Hills, LLC (2009) 177 Cal.App.4th 585, 590-591.) (Emphasis added.)

Discussion

Plaintiffs’ Arguments

Plaintiffs bring forth the instant motion on the grounds that the court previously adjudicated the very matters subject to Defendant’s motion for summary judgment. Specifically, Plaintiffs explains that on October 21, 2019, the court granted summary adjudication on the third through six causes of action (breach of fiduciary duty, professional negligence, breach of contract, and negligence, respectively). Therefore, as the matters therein summarily adjudicated are deemed established, “there is no revisiting of these issues, unless on appeal.” (Motion p. 6:18-22.)

Indeed, a review of the court’s October 21, 2019 tentative (adopted as the final ruling), reveals the following issues were discussed and resolved:

Issue No. 3: There is no triable issue of material fact on the third cause of action (i.e., Breach of Fiduciary Duty) because A. Lin and Han breached their fiduciary duty by concealing and acting against Plaintiffs’ interest, notably that Paragraph 43 of the Lease Agreement (‘Changes’) provides that the Lease is the final expression of the parties’ agreement with respect to their respective rights and obligations, therefore, the alleged oral statement Young told S. Li that Li that S. Li “could do whatever he wanted” with the property once it was rented was not integrated into the contract.

Issue No. 4: There is no triable issue of material fact on the fourth cause of action (i.e., Professional Negligence) because A. Lin and Han did not meet the ordinary standard of care required of them as professional licensed real estate brokers (as a professional negligence cause of action is rooted in the breach of fiduciary duty cause of action).

Issue No. 5: There is no triable issue of material fact on the fifth cause of action (Breach of Contract—Lease Agreement) because A. Lin, S. Li, Chen and Moon Management breached the Lease Agreement by subletting the property, by allowing party attendees to damage the property and by failing to pay rent.

Issue No. 6: There is no triable issue of material fact on the sixth cause of action (i.e., Negligence) because A. Lin, S. Li, Chen and Moon Management were negligent as tenants of the property as “a tenant of residential premises has a statutory duty to keep the premises clean and to refrain from causing damage to the premises,” which was breached when on or about March 25, 2018, Defendants sublet the Property to third parties; that on or about March 25, 2017, a wild party was held at the Property; the Property was substantially damaged. (Civil Code 1941.2; see also Civil Code 1920.)

Consequently, with no appeal of the court’s October 21, 2019 ruling, issues #3-#6 have been adjudicated.

As for the first two causes of action, based on purported wrongdoing by Lily Young, Plaintiffs argue that “those were also decided under the demurrers to the cross-complaint and the FACC.” Specifically, Plaintiffs articulate that the court found that April Lin can not excuse herself by alleging wrongdoing of her subordinate agent, Lily Young, because:

A. Lin, as the employing broker and Han’s principal officer . . had a duty to supervise their sales agent, Young. A broker licensee has an obligation to exercise reasonable supervision over the activities of his or her salespersons and the officer designated by a corporate broker license is obligated to exercise reasonable supervision and control of the activities of the corporation for which a real estate license is required. Business and Professions Code 10177(h). The knowledge that Young had as Han’s sales agent would appear to be equally attributable to A. Lin as Han’s designated officer.

(Court’s March 15, 2018 Tentative Ruling; see Ex. 4 of Motion) (emphasis added).

Accordingly, as this very issue—that Young’s conduct was imputed onto April Lin—appears to summarize the crux of April Lin’s pending MSJ, then the MSJ is inappropriate as the court already adjudicated the matter.

Defendant’s Arguments in Opposition

In Opposition, Defendant focuses on the latter phrase of CCP section 437c(f)(2). The statute specifically provides:

A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.

Here, Defendant explains that after the 10/21/19 prior interim ruling on issues #3-#6 under CCP section 437c(f)(2), the following new facts (amongst others) have been discovered (Opp. pp. 6-7):

- On 03/5/20, Plaintiffs amended the complaint and admitted the Listing Agreement was expired in the FAC making “a valid Listing Agreement” a triable issue of material fact, where both the prior ruling and the two prior demurrer rulings were based upon;

- On 03/17/2022, Young admitted she forged April Lin’s initial on the Listing Agreement;

- Young worked for Yan Li in 2015, before the 04/5/2016 forged Listing, and after the 03/25/2017 damage incident, up to the present,

- On 02/28/2022, handwriting expert confirmed the “Broker’s initial” on the Listing Agreement was forged and not produced by Defendant April Lin.

Additionally, Defendant, citing to Keidatz v. Albany, 39 Cal.2d 826, argue that judgment entered on a demurrer does not have such a broad res judicata effect. (Opp. p. 4:19-21.)

In sum, Defendant argues that the motion is unwarranted because the “Plaintiffs amended factual allegations in the FAC by admitting the Listing Agreement was expired, making a real estate agency relationship between the Plaintiffs and the Defendants a triable issue of material fact” and the newly discovered facts about the forged signature establish that “Defendant April Lin is entitled to the reassertion of Issues #3-#6.” (Opp. p. 10:11-19) (emphasis added).

To the court, such an “entitlement to reassertion of issues” reads as a motion for reconsideration. Aside from the concern that the MSJ attempts to relitigate issues already adjudicated, the issue remains that any motion for reconsideration must be made “…within 10 days after service upon the party of written notice of entry of the order…” (CCP 1008(a).) Here, as the demurrer and MSJ at issue were decided in 2018 and 2019, the motions are undeniably untimely.

Second, citing to Le Francois v. Goel (2005) 35 Cal.4th 1094, Plaintiffs argue that sections 437c, subdivision (f)(2) prohibits a party from making a renewed motion[] not based on new facts or law, but do not limit a court’s ability to reconsider its previous interim orders on its motion.” (Id. at 1096, 1097) (Italics original). Defendant’s Opposition fails to address this point.

Therefore, as CCP section 437c(f)(2) does not authorize a renewed summary judgment motion or summary adjudication motion on causes of action that the court granted in Plaintiffs’ favor, issues #3-6 have been frivolously re-asserted in the MSJ Motion.

As for the first two issues addressed in Demurrers, Plaintiffs in Reply contend Defendant misstates the case’s holding in Keidatz as the case “was referring only to the scope of res judicata effect on a judgment entered on a demurrer versus a judgment entered after trial; it did not categorically say there was no res judicata effect.” (Reply p. 5:21-24.) In Keidatz, plaintiffs alleged that they were induced to buying a new-constructed home from defendants by false representations. The trial court entered judgment for defendants after sustaining a demurrer. Thereafter, plaintiffs filed an action for damages, which resulted in the trial court granting defendant’s motion for summary judgment. The Supreme Court of California confronted the issue of the “scope of the doctrine of res judicata” when a judgment is entered after a demurrer. (Id. at 828.) The court, reversing the judgment holding that the judgment sustaining demurrer to plaintiff's action for rescission on ground that action was barred by laches and for failure to rescind promptly did not bar present action for damages for fraud, when present action was based on added allegation, absent from former complaint, explained that “[i]t is a judgment on the merits to the extent that it adjudicates that the facts alleged do not constitute a cause of action, and will, accordingly, be a bar to a subsequent action alleging the same facts.” (Id) (emphasis added). As such, the court is unpersuaded by Plaintiffs’ contention that res judicata applies.

That said, even if res judicata does not apply, the court agrees with Plaintiffs that the MSJ lacks legal support as to the first cause of action for fraud and second cause of action for breach of lease listing agreement because the court’s demurrer found that Young’ s misconduct is imputed to April Lin, which are now the facts of the case. Said differently, Defendant Lin’s MSJ disregards the findings held in the demurrer.

As such, it appears that the MSJ is devoid of legal basis.

Conclusion

Based on the foregoing, Plaintiffs Yan Li and Mesarica Management LLC’s Motion for Monetary Sanctions of $4,387.00 Against Defendant April Lin’s Counsel J ack W. Chao, and Pleadings Sanctions to Strike the Motion for Summary Judgment Filed by Defendant April Lin Set for Hearing on May 2, 2022 is GRANTED IN PART AND DENIED IN PART. The court STRIKES the MSJ but the court declines to impose monetary sanctions.[3]


[1] Plaintiffs emphasize that the point of this motion is ‘not to obtain sanctions, but to avoid putting the court and Plaintiffs through a misguided round of yet more summary judgment activity.” (Motion p. 2:23-26.)

[2] On Calendar, there appears to be another hearing on Motion for Sanctions scheduled for 07/07/2022.

[3] The court did not use Defendant’s submitted evidence; therefore, it need not address the evidentiary objections.



b'

Case Number: ****9873 Hearing Date: December 29, 2021 Dept: R

Plaintiff’s Motion for Terminating Sanctions, or in the Alternative, Issue and Evidentiary Sanctions, Plus Monetary Sanctions in the Amount of $3,091.65 Against Defendant Zhigang Yang for Misuse of the Discovery Process.

Responding Party: Defendant Zhigang Yang

Tentative Ruling

Plaintiff’s Motion for Terminating Sanctions, or in the Alternative, Issue and Evidentiary Sanctions, Plus Monetary Sanctions in the Amount of $3,091.65 Against Defendant Zhigang Yang for Misuse of the Discovery Process is CONTINUED PENDING THE RECIEPT OF THE INFORMATION BELOW.

Background

This case arises from alleged misrepresentations in leasing a property.

Plaintiff Yan Li (“Plaintiff”) owns the property located at 20711 E. Mesarica Road in San Dimas (“Property”) and manages same through Plaintiff Mesarica Management, LLC. On or about 4/5/16, Yan entered into a “Lease Listing Agreement—Exclusive Authorization to Lease or Rent” with Han International Group Inc. dba Han Realty (“Han”). Plaintiff alleges that Han’s supervising broker, April Lin (“A. Lin”), represented to Plaintiff that her friend Shigang Li (“S. Li”) was interested in leasing the Property for himself and his son to use when they visited from overseas, and that S. Li was also looking to operate a consulting business on the Property. When Plaintiff objected to S. Li as a tenant for his lack of credit history in the United States, A. Lin promised she would also be a tenant on the lease. Plaintiff contends that A. Lin, S. Lim Jui Yan Cheng (“Cheng”) and Moon Management Consulting, LLC (“Moon”) failed to disclose their intent to operate short-term rentals and use the Property to operate businesses for profit, including social events such as parties and weddings. Plaintiff alleges that the Property was severely damaged during a 3/25/17 social event.

On December 12, 2017, Plaintiff filed a complaint asserting causes of action against Defendants A. Lin, Han, S. Li, Cheng, Moon and Does 1-10 for:

1. Fraud,

2. Breach of Contract—Listing Agreement,

3. Breach of Fiduciary Duty,

4. Professional Negligence,

5. Breach of Contract—Lease Agreement, and

6. Negligence

On May 23, 2019, Plaintiff filed an Amendment to Complaint adding Zhigang Yang (“Defendant Yang”) as Doe 1.

On July 8, 2020, Plaintiff filed its First Amended Complaint (“FAC”).

On December 24, 2020, Plaintiff filed discovery motions, specifically for:

1. Motion to Deem Request for Admissions Admitted,

2. Motion to Compel Discovery (not “Further Discovery”) Form Interrogatories, Set One, For Defendant Yang,

3. Request for Production of Documents, Set One, for Defendant Yang,

4. Motion to Compel Discovery (not “Further Discovery”) Special Interrogatories, Set One, for Defendant Yang.

On March 8, 2021, the court granted all four discovery motions and reduced the monetary award of sanctions.

On August 31, 2021, Plaintiff filed the instant Motion for Sanctions.

On October 5, 2021, Plaintiff filed a “Reply Regarding Lack of Opposition to Motion for Sanctions.”

On December 8, 2021, Defendant filed his Opposition to Plaintiff’s Motion for Sanctions.

On December 15, 2021, Plaintiff filed a Reply and an Objection to Evidence Submitted by Defendant Zhang in Support of His Opposition to Plaintiff’s Motion for Sanctions.

The instant Motion for Terminating Sanctions is before the court with a scheduled hearing on Wednesday, December 29, 2021 at 10:00 a.m. The Final Status Conference (“FSC”) is scheduled for June 6, 2022 with a jury trial scheduled on June 14, 2022.

Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (CCP, 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) Pursuant to CCP Section 2023.030(d):

The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(CCP 2023.030(d).)

Untimeliness of the Opposition

Plaintiff takes issue with the timing of Defendant’s Opposition. The court agrees it is untimely.

While Defendant’s opposition was timely filed pursuant to the California Code of Civil Procedure section 1005 subdivision (d), which would allow for filing of the opposition until December 15, 2021 and Defendant filed its opposition on December 8, 2020, the court’s order required a different filing time. Specifically, the court’s October 18, 2021 required that the “Brief re: Tentative Ruling is to be filed and served by 12/1/2021.” The Brief was in reference to an opposition.

Accordingly, the Opposition was filed about one week too late.

Discussion

The issue is whether Defendant’s conduct—not complying with the court’s March 8, 2021 order that directed Defendant to respond to respond to Plaintiff’s discovery requests within 20 days and Defendant’s unresponsive to Plaintiff’s follow-up letters regarding the lack of discovery responses—exhibits sufficient disinterest in the present litigation to warrant the imposition of terminating sanctions.[1] The court does not have enough information to provide an informed answer.

While a pro-per litigant is treated like any other party and is entitled to the same (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-47), the matter here becomes more complicated because Defendant Zhang may be incarcerated.[2] If Defendant Zhang is incarcerated, then this could very well be the reason for his inability to actively partake in litigation.

Accordingly, Defense Counsel, Zulu Ali, is to provide the court with written responses to the following questions by ______________:

(1) Whether Defendant Zhang is incarcerated,

(2) If Defendant Zhang is incarcerated, where he is incarcerated,

(3) If Defendant Zhang is incarcerated, have arrangements been made to have him appear telephonically or via video at subsequent hearings,

(4) Whether arrangements been made for interpreters at future hearings, and

(5) Whether any pending criminal cases impede Defendant Zhang’s ability to comply with discovery requests.

Additionally, Defense Counsel is to provide the court with information as to whether Defense Counsel is up to speed on the case to provide discovery responses. The court acknowledges Defense Counsel was recently retained (on October 15, 2021) and wants to ensure Defense Counsel can resolve the outstanding discovery of his client.

Lastly, the Parties are ordered to meet and confer to resolve the outstanding discovery matters without court intervention. The declaration of Plaintiff’s Counsel, Samuel H. Jones, is void of statements indicating attempts to meet and confer with Defendant. Moreover, the docket does not reveal that after the Substitution of Attorney was filed, Plaintiff’s Counsel attempted to meet and confer with Defense Counsel.

Conclusion

Based on the foregoing, the hearing is CONTINUED TO ________________. If before INSERT DATE HEARING IS CONTINUED TO the Parties resolve Defendant Zhang’s outstanding discovery, then this motion will be taken off calendar.

Dates will be selected after conferring with counsel on 12/29/21.


[1] The court notes Defendant paid the monetary sanctions as required in the court’s March 8, 2021 order. (Motion p. 5, see also Jones Decl., 9, 11.)

[2] See January 22, 2021 Minute Order. Defendant Yang did not appear but called in explaining that he was in custody. The court ordered Defendant Yang to submit “In-Custody” documentation to the court by 1/25/21. To date, no such documentation has been received and no mention of such is made in Defendant’s Opposition.

'


b'

Case Number: ****9873 Hearing Date: October 18, 2021 Dept: R

Plaintiff Yan Li’s MOTION FOR TERMINATING SANCTIONS, OR IN THE

ALTERNATIVE, ISSUE AND EVIDENTIARY SANCTIONS PLUS MONETARY

SANCTIONS

Responding Party: None (unopposed, as of 10/12/21, 4:53 p.m.; due 10/4/21)

Tentative Ruling

Plaintiff Yan Li’s Motion for Terminating Sanctions is GRANTED. Defendant Zhigang

Yang’s answer to Plaintiffs’ FAC is stricken. Plaintiff Yan Li’s request for monetary

sanctions is denied.

Background

Plaintiff Yan Li (“Yan”) owns the property located at 20711 E. Mesarica Road in San Dimas (“subject property”) and manages same through Plaintiff Mesarica Management, LLC (“Mesarica”). On or about April 5, 2016, Yan entered into a “Lease Listing Agreement—Exclusive Authorization to Lease or Rent” with Han International Group Inc. dba Han Realty (“Han”). Yan alleges that Han’s supervising broker, April Lin (“A. Lin”), represented to Yan that her friend Shigang Li (“S. Li”) was interested in leasing the subject property for himself and his son to use when they visited from overseas, and that S. Li was also looking to operate a consulting business on the subject property. When Yan objected to S. Li as a tenant for his lack of credit history in the United States, A. Lin promised she would also be a tenant on the lease. Yan contends that A. Lin, S. Lim Jui Yuan Cheng and Moon Management Consulting, LLC (“Moon”) failed to disclose their intent to operate short-term rentals and use the subject property to operate businesses for a profit, including social events such as parties and weddings. Yan alleges that the subject property was severely damaged during a March 25, 2017 social event.

On March 15, 2018, the court sustained Plaintiffs’ demurrer to A. Lin, et al.’s cross-complaint, without leave to amend. On August 6, 2018, S. Li, Cheng and Moon filed their First Amended Cross-Complaint (“FACC”), asserting causes of action therein against Lili Young (“Young”) and Does 1-10 for:

  1. Fraud
  2. Fraud and Deceit by Intentional Misrepresentation
  3. Fraud and Deceit by Concealment and Nondisclosure of Known Facts
  4. Negligent Misrepresentation
  5. Breach of Fiduciary Duty
  6. Equitable Indemnity
  7. Contribution

On October 19, 2018, the court sustained Young’s demurrer to the FACC without leave to amend.

On November 15, 2018, Plaintiff-In-Intervention State Farm General Ins. Co. filed its complaint in intervention. On February 25, 2019, Plaintiffs dismissed Cheng, without prejudice.

On May 23, 2019, Plaintiffs filed an Amendment to Complaint, wherein Zhigang Yang (“Yang”) was substituted in lieu of Doe 1.

On July 8, 2020, Plaintiffs filed a First Amended Complaint (“FAC”), asserting causes of action against Defendants A. Lin, Han, S. Li, Yang, Moon and Does 1-10 for:

  1. Fraud
  2. Breach of Contract—Listing Agreement
  3. Breach of Fiduciary Duty
  4. Professional Negligence
  5. Breach of Contract—Lease Agreement
  6. Negligence

On August 10, 2020, S. Li’s default was entered on the FAC. On August 19, 2021, Han’s and Moon’s defaults were entered on the FAC.

The Final Status Conference is set for May 2, 2022. Trial is set for May 10, 2022.

Legal Standard

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. (Code Civ. Proc., ; 2025.450, subd. (h) [depositions]; ; 2030.290, subd. (c) [interrogatories]; ; 2031.300, subd. (c) [demands for production of documents].)

Code of Civil Procedure ; 2023.030 provides, in relevant part, that, “[t]o the extent authorized by the chapter governing any particular discovery method. . ., the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . .”

“The court may impose a terminating sanction by one of the following orders: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. . . (3) An order dismissing the action, or any part of the action, of that

party. . .” (Code Civ. Proc., ; 2023.030, subd. (d).)

“Misuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . (g) Disobeying a court order to provide discovery . . .” (Code Civ. Proc., ; 2023.010.)

A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 disapproved of on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.; Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) “Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Young, supra, 212 Cal.App.3d at 118-119 [internal quotations and citation omitted].) “Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous

noncompliance with a rule or order and it appears a less severe sanction would not be effective.” (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326 [quotation marks and citation omitted].)

Discussion

Yan moves the court for an order imposing terminating, sanctions, or in the alternative, issue

and evidentiary sanctions against for “repeated misuse of the discovery process” and for failure to comply with the court’s March 8, 2021 discovery order. Yan also seeks monetary sanctions against Yang in the amount of $3,091.65.

Request for Judicial Notice

Yan’s Request for Judicial Notice (“RJN”) is granted.

Merits

Procedural Deficiencies

Yan’s motion is not accompanied by a California Rules of Court (“CRC”) Rule 3.1345 separate statement (i.e., “[A]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: . . . (7) For issue or evidentiary sanctions” [emphasis added]).

Yan’s request for issue or evidentiary sanctions, then, is summarily denied.

Merits

On December 24, 2020, Yan filed the following motions: (1) Motion to Deem the Truth of Matter Specified in Requests for Admissions, Set One, for Defendant Zhigang Yang Admitted and Conclusively Established, (2) Motion to Compel Responses to Form Interrogatories, Set One, for Defendant Zhigang Yang, (3) Motion to Compel Responses to Special Interrogatories, Set One, for Defendant Zhigang Yang and (4) Motion to Compel Responses to Request for Production of Documents, Set One, for Defendant Zhigang Yang. (Jones Decl., ¶ 4.) Yang did not file any opposition to these motions. (Id., ¶ 5.) On January 22, 2021, the court held a hearing for an Order to Show Cause and Possible Sanctions Regarding Zhigang Yang’s Failure to Appear; at that time, the court continued hearing on the above discovery motions (then scheduled for January 27, 2021) to March 8, 2021 to enable the parties to meet and confer regarding discovery. (Id., ¶ 6, Exh. A.) On January 26, 2021, Yan’s counsel, Samuel Jones (“Jones”) met and conferred with Yang, with Mandarin translation assistance provided by Natalie Goh, a paralegal in Jones’s office. (Id., ¶ 7.) The meet and confer was unsuccessful. (Id.) On March 8, 2021, the court ordered Yang to serve on Yan verified responses, without objections, to Yan’s Form and Special Interrogatories and Request for Production of Documents, Sets One, within 20 days and awarded sanctions of $361.65 on each of the four motions, payable within 30 days. (Id., ¶ 8, Exh. B.)

On March 12, 2021, Plaintiffs filed a “Notice of Ruling,” advising therein of the court’s March 8, 2021 order. Although Yang paid the monetary sanctions, he did not provide any discovery responses by March 29, 2021. (Id., ¶ 9.) On May 5, 2021, Jones sent Yang a letter regarding Yang’s lack of responses. (Id., ¶ 10, Exh. C.) Yang did not respond to the letter. (Id.) Yang has not provided any responses, as of August 31, 2021 (i.e., the filing date of the motion). (Id., ¶ 11.)

The court determines that Yang’s failure to comply with the March 8, 2021 order amounts to willful disobedience. The March 8, 2021 minute order reflects that Yang appeared at the hearing. Yang was also served with Plaintiffs’ March 12, 2021 “Notice of Ruling.” Yan’s counsel also sent Yang a letter dated May 5, 2021, reminding Yang of the court’s March 8, 2021 order and requesting compliance on or before May 12, 2021. Furthermore, although Yang was properly served with the instant motion, Yang did not oppose it. Although terminating sanctions are a harsh penalty, the above evidence demonstrates that Yang’s compliance with the court’s orders cannot be achieved through lesser sanctions.

The motion is granted. The court orders Yang’s answer to Plaintiffs’ FAC stricken.

Monetary Sanctions

Yan also seeks monetary sanctions in the amount of $3,091.65 [calculated as follows: 9.1 hours preparing motion plus 1.0 hour attending hearing at $300.00/hour plus $61.65 filing fee.]

The court determines that an award of terminating sanctions alone is sufficient. Yan’s request for monetary sanctions is declined.'


Case Number: ****9873    Hearing Date: March 8, 2021    Dept: J

HEARING DATE: Monday, March 8, 2021

NOTICE: OK[1]

RE: Li, et al. v. Lin, et al. (****9873)

______________________________________________________________________________

1. Plaintiff Yan Li’s MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN

REQUESTS FOR ADMISSIONS, SET ONE, FOR DEFENDANT ZHIGANG YANG

ADMITTED AND CONCLUSIVELY ESTABLISHED

Responding Party: None (unopposed, as of 2/26/21, 8:25 a.m.; due 1/13/21)

2. Plaintiff Yan Li’s MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, SET ONE, FOR DEFENDANT ZHIGANG YANG

Responding Party: None (unopposed, as of 2/26/21, 8:25 a.m.; due 1/13/21)

3. Plaintiff Yan Li’s MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE, FOR DEFENDANT ZHIGANG YANG

Responding Party: None (unopposed, as of 2/26/21, 8:25 a.m.; due 1/13/21)

4. Plaintiff Yan Li’s MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FOR DEFENDANT ZHIGANG YANG

Responding Party: None (unopposed, as of 2/26/21, 8:25 a.m.; due 1/13/21)

Tentative Ruling

1. Plaintiff Yan Li’s Motion to Deem the Truth of Matters Specified in Requests for

Admissions, Set One, for Defendant Zhigang Yang Admitted and Conclusively Established

is GRANTED. Pursuant to Code Civil Procedure ; 2033.280, subdivision (b), the court

orders that the truth of the matters specified in the Requests for Admissions, Set One,

propounded by Yan to Yang be deemed admitted. Sanctions are awarded in the reduced

amount of $361.65 and are payable within 30 days of the date of the hearing.

2. Plaintiff Yan Li’s Motion to Compel Responses to Form Interrogatories, Set One, for

Defendant Zhigang Yang is GRANTED. Yang is ordered to serve on Yan verified

responses, without objections, to Yan’s Form Interrogatories, Set One within 20 days.

Sanctions are awarded in the reduced amount of $361.65 and are payable within 30 days.

3. Plaintiff Yan Li’s Motion to Compel Responses to Special Interrogatories, Set One, for

Defendant Zhigang Yang is GRANTED. Yang is ordered to serve on Yan verified

responses, without objections, to Yan’s Special Interrogatories, Set One within 20 days.

Sanctions are awarded in the reduced amount of $361.65 and are payable within 30 days.

4. Plaintiff Yan Li’s Motion to Compel Responses to Request for Production of Documents,

Set One, for Defendant Zhigang Yang is GRANTED. Yang is ordered to serve on Yan

verified responses, without objections, to Yan’s Request for Production of Documents, Set

One within 20 days. Sanctions are awarded in the reduced amount of $361.65 and are

payable within 30 days.

Background

Plaintiff Yan Li (“Yan”) owns the property located at 20711 E. Mesarica Road in San Dimas (“subject property”) and manages same through Plaintiff Mesarica Management, LLC (“Mesarica”). On or about April 5, 2016, Yan entered into a “Lease Listing Agreement—Exclusive Authorization to Lease or Rent” with Han International Group Inc. dba Han Realty (“Han”). Yan alleges that Han’s supervising broker, April Lin (“A. Lin”), represented to Yan that her friend Shigang Li (“S. Li”) was interested in leasing the subject property for himself and his son to use when they visited from overseas, and that S. Li was also looking to operate a consulting business on the subject property. When Yan objected to S. Li as a tenant for his lack of credit history in the United States, A. Lin promised she would also be a tenant on the lease. Yan contends that A. Lin, S. Lim Jui Yuan Cheng and Moon Management Consulting, LLC (“Moon”) failed to disclose their intent to operate short-term rentals and use the subject property to operate businesses for a profit, including social events such as parties and weddings. Yan alleges that the subject property was severely damaged during a March 25, 2017 social event.

On March 15, 2018, the court sustained Plaintiffs’ demurrer to A. Lin, et al.’s cross-complaint, without leave to amend. On August 6, 2018, S. Li, Cheng and Moon filed their First Amended Cross-Complaint (“FACC”), asserting causes of action therein against Lili Young (“Young”) and Does 1-10 for:

  1. Fraud
  2. Fraud and Deceit by Intentional Misrepresentation
  3. Fraud and Deceit by Concealment and Nondisclosure of Known Facts
  4. Negligent Misrepresentation
  5. Breach of Fiduciary Duty
  6. Equitable Indemnity
  7. Contribution

On October 19, 2018, the court sustained Young’s demurrer to the FACC without leave to amend.

On November 15, 2018, Plaintiff-In-Intervention State Farm General Ins. Co. filed its complaint in intervention. On February 25, 2019, Plaintiffs dismissed Cheng, without prejudice.

On May 23, 2019, Plaintiffs filed an Amendment to Complaint, wherein Zhigang Yang (“Yang”) was substituted in lieu of Doe 1.

On July 8, 2020, Plaintiffs filed a First Amended Complaint, asserting causes of action against Defendants A. Lin, Han, S. Li, Yang, Moon and Does 1-10 for:

  1. Fraud
  2. Breach of Contract—Listing Agreement
  3. Breach of Fiduciary Duty
  4. Professional Negligence
  5. Breach of Contract—Lease Agreement
  6. Negligence

On August 10, 2020, S. Li’s default was entered.

A Status Conference Re: Discovery is set for March 8, 2021. The Final Status Conference is set for April 4, 2022. Trial is set for April 12, 2022.

1. Motion to Deem Requests for Admission Admitted

Legal Standard

A response to requests for admission is due 30 days after service. (Code Civ. Proc., ;

2033.250, subd. (a).) If a party to whom the requests for admission are directed fails to serve a

timely response, the requesting party may move for an order that the genuineness of any

documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ.

Proc., ; 2033.280, subd. (b).)

The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (Code Civ. Proc., ; 2033.280, subd. (c).) It is mandatory that the court impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. (Code Civ. Proc., ; 2033.280, subd. (c).

Discussion

Yan moves the court for an order deeming the truth of all matters specified in Yan’s Request for Admissions, Set One, admitted and conclusively established. Yan also seeks sanctions against Yang in the amount of $1,381.65.

Yan’s counsel, Samuel H. Jones (“Jones”), represents, and the accompanying exhibits reflect, as follows: On September 1, 2020, Yan served the subject discovery on Yang’s then-counsel Eugene Alkana. (Jones Decl., ¶2, Exh. A.) On September 11, 2020, Jones emailed Alkana, who confirmed that he had sent the subject discovery to Yang both before and after he was relieved [i.e., on September 4, 2020] as Yang’s counsel. (Id., ¶3, Exh. B.) Responses were due on or before October 6, 2020. (Id., ¶4.) On October 8, 2020, Jones sent a letter to Yang regarding his lack of responses. (Id., ¶5, Exh. C.) On October 16, 2020, Jones sent a follow-up letter to Yang. (Id., ¶6, Exh. D.) No responses have been received. (Id., ¶7).

The motion is granted. Pursuant to Code Civil Procedure ; 2033.280, subdivision (b), the court orders that the truth of the matters specified in the Requests for Admissions, Set One, propounded by Yan to Yang be deemed admitted.

Sanctions

Yan seeks sanctions against Yang in the amount of $1,381.65 [calculated as follows: 2.4 hours preparing motion and meeting/conferring, plus 1 hour preparing reply, plus 1 hour attending hearing at $300.00/hour, plus $61.65 filing fee].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $361.65. Sanctions are payable within 30 days of the date of the hearing.

2. Motion to Compel Re: Form Interrogatories

Legal Standard

A response to interrogatories is due 30 days after service. (Code Civ. Proc., ; 2030.260, subd.

(a).) If a party to whom the interrogatories are directed fails to serve a timely response to it, the

party propounding the interrogatories may move for an order compelling response to the

interrogatories. (Code Civ. Proc., ; 2030.290, subd. (b).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes such a motion to compel, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., ; 2030.290, subd. (c).)

Discussion

Yan moves the court for an order compelling Yang to provide responses to Yan’s Form

Interrogatories, Set One, without objections. Yan also seeks sanctions against Yang in the

amount of $1,381.65.

See synopsis of Motion #1.

The motion is granted. Yang is ordered to serve on Yan verified responses, without objections, to

Yan’s Form Interrogatories, Set One within 20 days.

Sanctions

Yan seeks sanctions against Yang in the amount of $1,381.65 [See above re: calculation].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $361.65. Sanctions are payable within 30 days of the date of the hearing.

3. Motion to Compel Re: Special Interrogatories

Legal Standard

See Motion #2.

Discussion

Yan moves the court for an order compelling Yang to provide responses to Yan’s Special

Interrogatories, Set One, without objections. Yan also seeks sanctions against Yang in the

amount of $1,381.65.

See synopsis of Motion #1.

The motion is granted. Yang is ordered to serve on Yan verified responses, without objections, to

Yan’s Special Interrogatories, Set One within 20 days.

Sanctions

Yan seeks sanctions against Yang in the amount of $1,381.65 [See above re: calculation].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $361.65. Sanctions are payable within 30 days of the date of the hearing.

4. Motion to Compel Re: Requests for Production

Legal Standard

A response to a request for production of documents is due 30 days after service. (Code Civ.

Proc., ; 2031.260, subd. (a).) If a party to whom a request for production of documents is

directed fails to serve a timely response to it, the party making the demand may move for an

order compelling response to the demand. (Code Civ. Proc., ; 2031.300, subd. (b).)

The court shall impose a monetary sanction against any party, person, or attorney who

unsuccessfully makes or opposes such a motion to compel, unless it finds that the one subject to

the sanction acted with substantial justification or that other circumstances make the imposition

of the sanction unjust.” (Code Civ. Proc., ; 2031.300, subd. (c).)

Discussion

Yan moves the court for an order compelling Yang to provide responses to Yan’s Requests for

Production of Documents, Set One, without objections. Yan also seeks sanctions against Yang in

the amount of $1,381.65.

See synopsis of Motion #1.

The motion is granted. Yang is ordered to serve on Yan verified responses, without objections, to

Yan’s Requests for Production of Documents, Set One within 20 days.

Sanctions

Yan seeks sanctions against Yang in the amount of $1,381.65 [See above re: calculation].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $361.65. Sanctions are payable within 30 days of the date of the hearing.


[1] Motions #1-#4 were filed on December 24, 2020; Motions #1 and #2 were set for hearing on January 27, 2021 and Motions #3 and #4 were set for hearing on February 2, 2021. Amended proofs of service reflect that Motions #1-#4 were mail-served on December 28, 2020. On January 6, 2021, Plaintiffs filed (and mail-served) a “Notice of Rescheduled Hearings on Motions to Compel Discovery for Request for Production of Documents, Set One and Special Interrogatories, Set One Against Defendant Zhigang Yang,” advising therein that the February 2, 2021 hearing date on Motions #3 and #4 had been advanced to January 27, 2021. On January 22, 20201, the court, on its own motion, rescheduled the January 27 2021 hearing date on Motions #1-#4 to March 8, 2021; Plaintiffs’ counsel was ordered to give notice. On January 22, 2021, Plaintiffs filed (and served via email) a “Notice of Ruling,” advising therein of the rescheduled March 8, 2021 hearing date.



Case Number: ****9873    Hearing Date: January 27, 2021    Dept: J

HEARING DATE: Wednesday, January 27, 2021

NOTICE: OK[1]

RE: Li, et al. v. Lin, et al. (****9873)

______________________________________________________________________________

1. Plaintiff Yan Li’s MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN

REQUESTS FOR ADMISSIONS, SET ONE, FOR DEFENDANT ZHIGANG YANG

ADMITTED AND CONCLUSIVELY ESTABLISHED

Responding Party: None (unopposed, as of 1/15/21, 11:45 a.m.; due 1/13/21)

2. Plaintiff Yan Li’s MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, SET ONE, FOR DEFENDANT ZHIGANG YANG

Responding Party: None (unopposed, as of 1/15/21, 11:45 a.m.; due 1/13/21)

3. Plaintiff Yan Li’s MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE, FOR DEFENDANT ZHIGANG YANG

Responding Party: None (unopposed, as of 1/15/21, 11:45 a.m.; due 1/13/21)

4. Plaintiff Yan Li’s MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE, FOR DEFENDANT ZHIGANG YANG

Responding Party: None (unopposed, as of 1/15/21, 11:45 a.m.; due 1/13/21)

Tentative Ruling

1. Plaintiff Yan Li’s Motion to Deem the Truth of Matters Specified in Requests for

Admissions, Set One, for Defendant Zhigang Yang Admitted and Conclusively Established

is GRANTED. Pursuant to Code Civil Procedure ; 2033.280, subdivision (b), the court

orders that the truth of the matters specified in the Requests for Admissions, Set One,

propounded by Yan to Yang be deemed admitted. Sanctions are awarded in the reduced

amount of $361.65 and are payable within 30 days of the date of the hearing.

2. Plaintiff Yan Li’s Motion to Compel Responses to Form Interrogatories, Set One, for

Defendant Zhigang Yang is GRANTED. Yang is ordered to serve on Yan verified

responses, without objections, to Yan’s Form Interrogatories, Set One within 20 days.

Sanctions are awarded in the reduced amount of $361.65 and are payable within 30 days.

3. Plaintiff Yan Li’s Motion to Compel Responses to Special Interrogatories, Set One, for

Defendant Zhigang Yang is GRANTED. Yang is ordered to serve on Yan verified

responses, without objections, to Yan’s Special Interrogatories, Set One within 20 days.

Sanctions are awarded in the reduced amount of $361.65 and are payable within 30 days.

4. Plaintiff Yan Li’s Motion to Compel Responses to Request for Production of Documents,

Set One, for Defendant Zhigang Yang is GRANTED. Yang is ordered to serve on Yan

verified responses, without objections, to Yan’s Request for Production of Documents, Set

One within 20 days. Sanctions are awarded in the reduced amount of $361.65 and are

payable within 30 days.

Background

Plaintiff Yan Li (“Yan”) owns the property located at 20711 E. Mesarica Road in San Dimas (“subject property”) and manages same through Plaintiff Mesarica Management, LLC (“Mesarica”). On or about April 5, 2016, Yan entered into a “Lease Listing Agreement—Exclusive Authorization to Lease or Rent” with Han International Group Inc. dba Han Realty (“Han”). Yan alleges that Han’s supervising broker, April Lin (“A. Lin”), represented to Yan that her friend Shigang Li (“S. Li”) was interested in leasing the subject property for himself and his son to use when they visited from overseas, and that S. Li was also looking to operate a consulting business on the subject property. When Yan objected to S. Li as a tenant for his lack of credit history in the United States, A. Lin promised she would also be a tenant on the lease. Yan contends that A. Lin, S. Lim Jui Yuan Cheng and Moon Management Consulting, LLC (“Moon”) failed to disclose their intent to operate short-term rentals and use the subject property to operate businesses for a profit, including social events such as parties and weddings. Yan alleges that the subject property was severely damaged during a March 25, 2017 social event.

On March 15, 2018, the court sustained Plaintiffs’ demurrer to A. Lin, et al.’s cross-complaint, without leave to amend. On August 6, 2018, S. Li, Cheng and Moon filed their First Amended Cross-Complaint (“FACC”), asserting causes of action therein against Lili Young (“Young”) and Does 1-10 for:

  1. Fraud
  2. Fraud and Deceit by Intentional Misrepresentation
  3. Fraud and Deceit by Concealment and Nondisclosure of Known Facts
  4. Negligent Misrepresentation
  5. Breach of Fiduciary Duty
  6. Equitable Indemnity
  7. Contribution

On October 19, 2018, the court sustained Young’s demurrer to the FACC without leave to amend.

On November 15, 2018, Plaintiff-In-Intervention State Farm General Ins. Co. filed its complaint in intervention. On February 25, 2019, Plaintiffs dismissed Cheng, without prejudice.

On May 23, 2019, Plaintiffs filed an Amendment to Complaint, wherein Zhigang Yang (“Yang”) was substituted in lieu of Doe 1.

On July 8, 2020, Plaintiffs filed a First Amended Complaint, asserting causes of action against Defendants A. Lin, Han, S. Li, Yang, Moon and Does 1-10 for:

  1. Fraud
  2. Breach of Contract—Listing Agreement
  3. Breach of Fiduciary Duty
  4. Professional Negligence
  5. Breach of Contract—Lease Agreement
  6. Negligence

On August 10, 2020, S. Li’s default was entered.

The Final Status Conference is set for April 4, 2022. Trial is set for April 12, 2022.

1. Motion to Deem Requests for Admission Admitted

Legal Standard

A response to requests for admission is due 30 days after service. (Code Civ. Proc., ;

2033.250, subd. (a).) If a party to whom the requests for admission are directed fails to serve a

timely response, the requesting party may move for an order that the genuineness of any

documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ.

Proc., ; 2033.280, subd. (b).)

The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (Code Civ. Proc., ; 2033.280, subd. (c).) It is mandatory that the court impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. (Code Civ. Proc., ; 2033.280, subd. (c).

Discussion

Yan moves the court for an order deeming the truth of all matters specified in Yan’s Request for Admissions, Set One, admitted and conclusively established. Yan also seeks sanctions against Yang in the amount of $1,381.65.

Yan’s counsel, Samuel H. Jones (“Jones”), represents, and the accompanying exhibits reflect, as follows: On September 1, 2020, Yan served the subject discovery on Yang’s then-counsel Eugene Alkana. (Jones Decl., ¶2, Exh. A.) On September 11, 2020, Jones emailed Alkana, who confirmed that he had sent the subject discovery to Yang both before and after he was relieved [i.e., on September 4, 2020] as Yang’s counsel. (Id., ¶3, Exh. B.) Responses were due on or before October 6, 2020. (Id., ¶4.) On October 8, 2020, Jones sent a letter to Yang regarding his lack of responses. (Id., ¶5, Exh. C.) On October 16, 2020, Jones sent a follow-up letter to Yang. (Id., ¶6, Exh. D.) No responses have been received. (Id., ¶7).

The motion is granted. Pursuant to Code Civil Procedure ; 2033.280, subdivision (b), the court orders that the truth of the matters specified in the Requests for Admissions, Set One, propounded by Yan to Yang be deemed admitted.

Sanctions

Yan seeks sanctions against Yang in the amount of $1,381.65 [calculated as follows: 2.4 hours preparing motion and meeting/conferring, plus 1 hour preparing reply, plus 1 hour attending hearing at $300.00/hour, plus $61.65 filing fee].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $361.65. Sanctions are payable within 30 days of the date of the hearing.

2. Motion to Compel Re: Form Interrogatories

Legal Standard

A response to interrogatories is due 30 days after service. (Code Civ. Proc., ; 2030.260, subd.

(a).) If a party to whom the interrogatories are directed fails to serve a timely response to it, the

party propounding the interrogatories may move for an order compelling response to the

interrogatories. (Code Civ. Proc., ; 2030.290, subd. (b).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes such a motion to compel, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., ; 2030.290, subd. (c).)

Discussion

Yan moves the court for an order compelling Yang to provide responses to Yan’s Form

Interrogatories, Set One, without objections. Yan also seeks sanctions against Yang in the

amount of $1,381.65.

See synopsis of Motion #1.

The motion is granted. Yang is ordered to serve on Yan verified responses, without objections, to

Yan’s Form Interrogatories, Set One within 20 days.

Sanctions

Yan seeks sanctions against Yang in the amount of $1,381.65 [See above re: calculation].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $361.65. Sanctions are payable within 30 days of the date of the hearing.

3. Motion to Compel Re: Special Interrogatories

Legal Standard

See Motion #2.

Discussion

Yan moves the court for an order compelling Yang to provide responses to Yan’s Special

Interrogatories, Set One, without objections. Yan also seeks sanctions against Yang in the

amount of $1,381.65.

See synopsis of Motion #1.

The motion is granted. Yang is ordered to serve on Yan verified responses, without objections, to

Yan’s Special Interrogatories, Set One within 20 days.

Sanctions

Yan seeks sanctions against Yang in the amount of $1,381.65 [See above re: calculation].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $361.65. Sanctions are payable within 30 days of the date of the hearing.

4. Motion to Compel Re: Requests for Production

Legal Standard

A response to a request for production of documents is due 30 days after service. (Code Civ.

Proc., ; 2031.260, subd. (a).) If a party to whom a request for production of documents is

directed fails to serve a timely response to it, the party making the demand may move for an

order compelling response to the demand. (Code Civ. Proc., ; 2031.300, subd. (b).)

The court shall impose a monetary sanction against any party, person, or attorney who

unsuccessfully makes or opposes such a motion to compel, unless it finds that the one subject to

the sanction acted with substantial justification or that other circumstances make the imposition

of the sanction unjust.” (Code Civ. Proc., ; 2031.300, subd. (c).)

Discussion

Yan moves the court for an order compelling Yang to provide responses to Yan’s Requests for

Production of Documents, Set One, without objections. Yan also seeks sanctions against Yang in

the amount of $1,381.65.

See synopsis of Motion #1.

The motion is granted. Yang is ordered to serve on Yan verified responses, without objections, to

Yan’s Requests for Production of Documents, Set One within 20 days.

Sanctions

Yan seeks sanctions against Yang in the amount of $1,381.65 [See above re: calculation].

Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $361.65. Sanctions are payable within 30 days of the date of the hearing.


[1] Motions #1-#4 were filed on December 24, 2020; Motions #1 and #2 were set for hearing on January 27, 2021 and Motions #3 and #4 were set for hearing on February 2, 2021. Amended proofs of service reflect that Motions #1-#4 were mail-served on December 28, 2020. On January 6, 2021, Plaintiffs filed (and mail-served) a “Notice of Rescheduled Hearings on Motions to Compel Discovery for Request for Production of Documents, Set One and Special Interrogatories, Set One Against Defendant Zhigang Yang,” advising therein that the February 2, 2021 hearing date on Motions #3 and #4 had been advanced to January 27, 2021.



Case Number: ****9873    Hearing Date: October 13, 2020    Dept: J

HEARING DATE: Tuesday, October 13, 2020

NOTICE: See below[1]

RE: Li, et al. v. Lin, et al. (****9873)

______________________________________________________________________________

Defendant April Lin’s MOTION TO SET ASIDE DEFAULT AND GRANT LEAVE TO

FILE ANSWER

Responding Party: Plaintiff, Yan Li

Tentative Ruling

Defendant April Lin’s Motion to Set Aside Default and Grant Leave to File Answer is

DENIED.

Background

Plaintiff Yan Li (“Yan”) owns the property located at 20711 E. Mesarica Road in San Dimas (“subject property”) and manages same through Plaintiff Mesarica Management, LLC (“Mesarica”). On or about April 5, 2016, Yan entered into a “Lease Listing Agreement—Exclusive Authorization to Lease or Rent” with Han International Group Inc. dba Han Realty (“Han”). Yan alleges that Han’s supervising broker, April Lin (“A. Lin”), represented to Yan that her friend Shigang Li (“S. Li”) was interested in leasing the subject property for himself and his son to use when they visited from overseas, and that S. Li was also looking to operate a consulting business on the subject property. When Yan objected to S. Li as a tenant for his lack of credit history in the United States, A. Lin promised she would also be a tenant on the lease. Yan contends that A. Lin, S. Lim Jui Yuan Cheng and Moon Management Consulting, LLC (“Moon”) failed to disclose their intent to operate short-term rentals and use the subject property to operate businesses for a profit, including social events such as parties and weddings. Yan alleges that the subject property was severely damaged during a March 25, 2017 social event.

On March 15, 2018, the court sustained Plaintiffs’ demurrer to A. Lin, et al.’s cross-complaint, without leave to amend. On August 6, 2018, S. Li, Cheng and Moon filed their First Amended Cross-Complaint (“FACC”), asserting causes of action therein against Lili Young (“Young”) and Does 1-10 for:

  1. Fraud
  2. Fraud and Deceit by Intentional Misrepresentation
  3. Fraud and Deceit by Concealment and Nondisclosure of Known Facts
  4. Negligent Misrepresentation
  5. Breach of Fiduciary Duty
  6. Equitable Indemnity
  7. Contribution

On October 19, 2018, the court sustained Young’s demurrer to the FACC without leave to amend.

On November 15, 2018, Plaintiff-In-Intervention State Farm General Ins. Co. filed its complaint in intervention. On February 25, 2019, Plaintiffs dismissed Cheng, without prejudice.

On May 23, 2019, Plaintiffs filed an Amendment to Complaint, wherein Zhigang Yang (“Yang”) was substituted in lieu of Doe 1.

On July 8, 2020, Plaintiffs filed a First Amended Complaint, asserting causes of action against Defendants A. Lin, Han, S. Li, Yang, Moon and Does 1-10 for:

  1. Fraud
  2. Breach of Contract—Listing Agreement
  3. Breach of Fiduciary Duty
  4. Professional Negligence
  5. Breach of Contract—Lease Agreement
  6. Negligence

On August 10, 2020, A. Lin’s and S. Li’s defaults were entered.

A Trial Setting Conference is set for October 13, 2020.

Legal Standard

Relief under Code of Civil Procedure section 473 is either discretionary or mandatory. A motion for mandatory relief “must be made no more than six months after entry of judgment” and be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., ; 473, subd. (b).) The attorney affidavit of fault must contain a “straightforward admission of fault.” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) The attorney affidavit of fault, however, need not include an explanation of the reasons for the attorney’s mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.) “Relief is mandatory when a complying affidavit is filed, even if the attorney’s neglect is inexcusable.” (Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1033.) Relief must be granted “unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.” (Id.)

Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to “mistake, inadvertence, surprise, or excusable neglect.” (Code Civ., Proc., ; 473, subd. (b).) A motion for discretionary relief must be made “within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken.” (Id.) “The burden of proof is on the moving party who must establish his position by a preponderance of the evidence.” (Luz v. Lopes (1960) 55 Cal.2d 54, 62.)

A motion for relief under section 473, subdivision (b) “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . .” (Code Civ. Proc., ; 473, subd. (b).)

Discussion

A. Lin moves the court for an order setting aside the default entered against her on August 10, 2020 on the basis of inadvertence.

A. Lin represents that, although she was present at the July 8, 2020 hearing when Plaintiff’s motion for leave to file an amended complaint was granted, she did not understand the details of the court’s order (specifically, that the amended complaint was filed and served on July 8, 2020), because she is a native speaker of Mandarin Chinese and is not fluent in English, and there was no interpreter to help (A. Lin Decl., ¶2); that nobody gave her a copy of the amended complaint or the court order (Id.); that she brought the language issue to the court’s attention and that, while the court arranged for an interpreter for the September 4, 2020 hearing, that did not help her on July 8, 2020 (Id.); that she was never personally served with a copy of Plaintiff’s amended complaint (Id., ¶3); that the amended complaint came in the mail to her real estate office located at 207 1st Avenue, Arcadia, CA 91006 (“Arcadia Address”), from her former attorney, Eugene Alkana (“Alkana”), without any explanation (Id.); that she picked up her mail on August 15, 2020 (Id.); that she could not do regular business, including receiving mail, at her real estate office because it is a non-essential business under the coronavirus pandemic emergency orders (Id., ¶4); that she had no business reason to visit for mail collection anyways, as they had “zero business” due to the pandemic (Id.); that when she picked up her mail on August 15, 2020, she did not know how to calculate the due date for her answer (Id., ¶5) and that she immediately prepared her answer and filed it on Monday, August 17, 2020 (Id.)

The court queries whether A. Lin is capable of submitting and executing a declaration in English, due to her above-cited language limitations.

On July 8, 2020, the court granted Plaintiff’s Motion to Amend Complaint and Alkana’s Motions to Be Relieved as Counsel of Record for A. Lin, Moon S. Li and Han; the former motion was deemed filed and served on that date, with 20 days given to Defendants to answer, and the latter motions were granted effective upon the filing of the proof of service showing service of the signed orders upon the clients. The court also set an Order to Show Cause Re: Representation of Corporation and a Trial Setting Conference for July 28, 2020. A. Lin appeared at the July 8, 2020 hearing. On July 13, 2020, Plaintiff served a “Notice of Court Ruling Re July 10, 2020 Hearing on Plaintiff’s Motion for Leave to Amend/Amendment for Complaint; Alkana’s Four Motions to be Relieved as Counsel; Trial Setting Conference; OSC Re: Representation of Corporation,” which was mail-served to Alkana and A. Lin at the Arcadia Address. On July 20, 2020, Alkana filed proofs of service on the orders granting his Motions to Be Relieved as Counsel; that day, Yang (whom Plaintiff represents is A. Lin’s husband) answered the FAC.

On July 28, 2020, a Trial Setting Conference and OSC Re: Representation of Corporation was held; A. Lin appeared. The July 28, 2020 minute order reflected that Mandarin interpreter Yajing Dong interpreted for A. Lin. At that time, the court continued the hearing to August 18, 2020, instructed A. Lin to hire counsel for corporate defendants, and ordered Plaintiff’s counsel to give notice. On July 30, 2020, Plaintiff filed a “Notice of Continuance of the Trial Setting Conference and OSC Re: Representation of Corporation;” A. Lin was mail-served with same that day at the Arcadia Address.

The court determines that, even if A. Lin’s declaration is considered, A. Lin has failed to show inadvertence. A. Lin provided the Arcadia Address as her address of record for this litigation. Although A. Lin may have been prohibited from conducting real estate business as a result of the coronavirus pandemic, there were no orders from in effect precluding A. Lin from going to the Arcadia Address and retrieving her mail. If the business was closed, A. Lin would be the only person there and thus would have had minimal, if any, risk of exposure. Additionally, A. Lin was present at the July 8, 2020 hearing and was represented by Alkana until July 20, 2020. Even if the court were to accept A. Lin’s proffered language limitation as fact, the court notes both that Yang was able to file his answer on July 20, 2020 and that an interpreter was present during the July 28, 2020 hearing.

The motion, then, is denied.


[1] The motion was filed on September 18, 2020 (mail-served September 16, 2020) for an October 13, 2020 hearing date. Although the motion itself was timely filed, A. Lin did not provide an additional 5 calendar days’ notice for mailing, as per Code of Civil Procedure ; 1005, subdivision (b). With that said, the motion is opposed on its merits: “It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) Accordingly, the court will entertain the motion on its merits.



Case Number: ****9873    Hearing Date: September 04, 2020    Dept: J

HEARING DATE: Friday, September 4, 2020

NOTICE: OK[1]

RE: Li, et al. v. Lin, et al. (****9873)

______________________________________________________________________________

Counsel for Zhigang Yang’s (i.e., Eugene S. Alkana, APLC) MOTION TO BE

RELIEVED AS COUNSEL

Responding Party: None (unopposed, as of 8/24/20, 3:31 p.m.; due 8/24/20)

Tentative Ruling

Counsel for Zhigang Yang’s (i.e., Eugene S. Alkana, APLC) Motion to be Relieved as

Counsel is GRANTED, effective upon the filing of the proof of service reflecting service of

the signed order upon the Client.

Background

Plaintiff Yan Li (“Yan”) owns the property located at 20711 E. Mesarica Road in San Dimas (“subject property”) and manages same through Plaintiff Mesarica Management, LLC (“Mesarica”). On or about April 5, 2016, Yan entered into a “Lease Listing Agreement—Exclusive Authorization to Lease or Rent” with Han International Group Inc. dba Han Realty (“Han”). Yan alleges that Han’s supervising broker, April Lin (“A. Lin”), represented to Yan that her friend Shigang Li (“S. Li”) was interested in leasing the subject property for himself and his son to use when they visited from overseas, and that S. Li was also looking to operate a consulting business on the subject property. When Yan objected to S. Li as a tenant for his lack of credit history in the United States, A. Lin promised she would also be a tenant on the lease. Yan contends that A. Lin, S. Lim Jui Yuan Cheng and Moon Management Consulting, LLC (“Moon”) failed to disclose their intent to operate short-term rentals and use the subject property to operate businesses for a profit, including social events such as parties and weddings. Yan alleges that the subject property was severely damaged during a March 25, 2017 social event.

On March 15, 2018, the court sustained Plaintiffs’ demurrer to A. Lin, et al.’s cross-complaint, without leave to amend. On August 6, 2018, S. Li, Cheng and Moon filed their First Amended Cross-Complaint (“FACC”), asserting causes of action therein against Lili Young (“Young”) and Does 1-10 for:

  1. Fraud
  2. Fraud and Deceit by Intentional Misrepresentation
  3. Fraud and Deceit by Concealment and Nondisclosure of Known Facts
  4. Negligent Misrepresentation
  5. Breach of Fiduciary Duty
  6. Equitable Indemnity
  7. Contribution

On October 19, 2018, the court sustained Young’s demurrer to the FACC without leave to amend.

On November 15, 2018, Plaintiff-In-Intervention State Farm General Ins. Co. filed its complaint in intervention. On February 25, 2019, Plaintiffs dismissed Cheng, without prejudice.

On May 23, 2019, Plaintiffs filed an Amendment to Complaint, wherein Zhigang Yang (“Yang”) was substituted in lieu of Doe 1.

On July 8, 2020, Plaintiffs filed a First Amended Complaint, asserting causes of action against Defendants A. Lin, Han, S. Li, Yang, Moon and Does 1-10 for:

  1. Fraud
  2. Breach of Contract—Listing Agreement
  3. Breach of Fiduciary Duty
  4. Professional Negligence
  5. Breach of Contract—Lease Agreement
  6. Negligence

On August 10, 2020, A. Lin’s and S. Li’s defaults were entered.

An Oder to Show Cause Re: Representation of Corporation and a Trial Setting Conference are set for September 4, 2020.

Discussion

Eugene S. Alkana, APLC, seeks to be relieved as counsel of record for Yang (“Client”).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of

justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.)

California Rule of Court (“CRC”) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure ; 284(2) is brought instead of filing a consent under section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.

Attorney Eugene S. Alkana (“Alkana”) states in his declaration that “[t]here has been a breakdown in the attorney-client relationship and inability to communicate with the client. Defendant has ample time to obtain replacement counsel, so he is not prejudice[d] if this motion is granted.”

Alkana states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with his declaration and that he has been able to confirm, within the past 30 days, that the address is current, via conversation.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above

have been sufficiently met. Accordingly, the motion is granted, effective upon the filing of the

proof of service reflecting service of the signed order upon the Client.


[1] The motion was filed and mail-served on July 15, 2020 and originally set for hearing on October 2, 2020. On August 18, 2020, moving counsel filed (and mail-served) a “Notice of Advanced Hearing on the Motion to Be Relieved as Counsel, TSC, OSC,” advising therein that the October 2, 2020 hearing date on the motion had been rescheduled to September 4, 2020 at 10:00 a.m.



Case Number: ****9873    Hearing Date: July 08, 2020    Dept: J

HEARING DATE: Wednesday, July 8, 2020

NOTICE: Motion #1: OK

Motions #2-#5: See below[1]

RE: Li, et al. v. Lin, et al. (****9873)

______________________________________________________________________________

 

1. Plaintiff Yan Li’s MOTION TO AMEND COMPLAINT

Responding Party: Defendants April Lin, Han International Group, Inc. dba Han Realty, Moon Management Consulting, LLC, Shigang Li and Zhigang Yang

2. Counsel for Shigang Li’s (i.e., Eugene S. Alkana, Esq. of Eugene S. Alkana, APLC)

MOTION TO BE RELIEVED AS COUNSEL

Responding Party: None (unopposed, as of 6/26/20, 8:32 a.m.; due 6/24/20)

3. Counsel for Moon Management Consulting, LLC’s (i.e., Eugene S. Alkana, Esq. of

Eugene S. Alkana, APLC) MOTION TO BE RELIEVED AS COUNSEL

Responding Party: None (unopposed, as of 6/26/20, 8:32 a.m.; due 6/24/20)

4. Counsel for April Lin’s (i.e., Eugene S. Alkana, Esq. of Eugene S. Alkana, APLC)

MOTION TO BE RELIEVED AS COUNSEL

Responding Party: None (unopposed, as of 6/26/20, 8:32 a.m.; due 6/24/20)

5. Counsel for Han International Group Inc. dba Han Realty’s (i.e., Eugene S. Alkana,

Esq. of Eugene S. Alkana, APLC) MOTION TO BE RELIEVED AS COUNSEL

Responding Party: None (unopposed, as of 6/26/20, 8:32 a.m.; due 6/24/20)

Tentative Ruling

1. Plaintiff Yan Li’s Motion to Amend Complaint is GRANTED.

2. Counsel for Shigang Li’s (i.e., Eugene S. Alkana, Esq. of Eugene S. Alkana, APLC)

Motion to be Relieved as Counsel is GRANTED, contingent upon counsel for S. Li’s

production of a proof of service reflecting CCP ; 1005(b) compliance regarding notice of

the July 8, 2020 hearing date/time and effective upon the filing of the proof of

service showing service of the signed order upon the Client.

3. Counsel for Moon Management Consulting, LLC’s (i.e., Eugene S. Alkana, Esq. of

Eugene S. Alkana, APLC) Motion to be Relieved as Counsel is GRANTED, contingent

upon counsel for Moon’s production of a proof of service reflecting CCP ; 1005(b)

compliance regarding notice of the July 8, 2020 hearing date/time and effective upon

the filing of the proof of service showing service of the signed order upon the Client. The

court sets an Order to Show Cause Re: Representation of LLC for July 22, 2020, 10 a.m.

4. Counsel for April Lin’s (i.e., Eugene S. Alkana, Esq. of Eugene S. Alkana, APLC)

Motion to be Relieved as Counsel is GRANTED, contingent upon counsel for A. Lin’s

production of a proof of service reflecting CCP ; 1005(b) compliance regarding notice of

the July 8, 2020 hearing date/time and effective upon the filing of the proof of

service showing service of the signed order upon the Client.

5. Counsel for Han International Group Inc. dba Han Realty’s (i.e., Eugene S. Alkana,

Esq. of Eugene S. Alkana, APLC) Motion to be Relieved as Counsel is GRANTED,

contingent upon counsel for Han’s production of a proof of service reflecting CCP ;

1005(b) compliance regarding notice of the July 8, 2020 hearing date/time and effective

upon the filing of the proof of service showing service of the signed order upon the Client.

The court sets an Order to Show Cause Re: Representation of Corporation for

July 22, 2020, 10 a.m.

Background

Plaintiff Yan Li (“Yan”) owns the property located at 20711 E. Mesarica Road in San Dimas (“subject property”) and manages same through Plaintiff Mesarica Management, LLC (“Mesarica”). On or about April 5, 2016, Yan entered into a “Lease Listing Agreement—Exclusive Authorization to Lease or Rent” with Han International Group Inc. dba Han Realty (“Han”). Yan alleges that Han’s supervising broker, April Lin (“A. Lin”), represented to Yan that her friend Shigang Li (“S. Li”) was interested in leasing the subject property for himself and his son to use when they visited from overseas, and that S. Li was also looking to operate a consulting business on the subject property. When Yan objected to S. Li as a tenant for his lack of credit history in the United States, A. Lin promised she would also be a tenant on the lease. Yan contends that A. Lin, S. Lim Jui Yuan Cheng (“Cheng”) and Moon Management Consulting, LLC (“Moon”) failed to disclose their intent to operate short-term rentals and use the subject property to operate businesses for a profit, including social events such as parties and weddings. Yan alleges that the subject property was severely damaged during a March 25, 2017 social event.

On December 12, 2017, Plaintiffs filed a complaint, asserting causes of action against Defendants A. Lin, Han, S. Li, Cheng, Moon and Does 1-10 for:

  1. Fraud
  2. Breach of Contract—Listing Agreement
  3. Breach of Fiduciary Duty
  4. Professional Negligence
  5. Breach of Contract—Lease Agreement
  6. Negligence
  7.  

On March 15, 2018, the court sustained Plaintiffs’ demurrer to A. Lin, et al.’s cross-complaint, without leave to amend. On August 6, 2018, S. Li, Cheng and Moon filed their First Amended Cross-Complaint (“FACC”), asserting causes of action therein against Lili Young (“Young”) and Does 1-10 for:

  1. Fraud
  2. Fraud and Deceit by Intentional Misrepresentation
  3. Fraud and Deceit by Concealment and Nondisclosure of Known Facts
  4. Negligent Misrepresentation
  5. Breach of Fiduciary Duty
  6. Equitable Indemnity
  7. Contribution

On October 19, 2018, the court sustained Young’s demurrer to the FACC without leave to amend.

On November 15, 2018, Plaintiff-In-Intervention State Farm General Ins. Co. filed its complaint in intervention. On February 25, 2019, Plaintiffs dismissed Cheng, without prejudice.

On May 23, 2019, Plaintiffs filed an Amendment to Complaint, wherein Zhigang Yang (“Yang”) was substituted in lieu of Doe 1.

A Trial Setting Conference is set for July 8, 2020.

1. Motion to Amend Complaint

Legal Standard

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” (Code Civ. Proc., ; 473, subd. (a)(1); and see ; 576 [“Any judge, at any time before or after commencement or trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order”].)

“[T]he trial court has wide discretion in allowing the amendment of any pleading.” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135.) “[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments ‘relate to the same general set of facts.’” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048, quoting Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 489.) “[E]ven if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer motion for judgment on the pleadings or other appropriate proceedings.’” (Id., quoting California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.)

Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) However, “even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial. . . denial may rest upon the lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party.” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 940.)

Also, “[a] motion to amend a pleading before trial must: (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.” (California Rules of Court (“CRC”) Rule 3.1324(a).)

Additionally, “[a] separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (CRC Rule 3.1324(b).)

Discussion

Plaintiffs move the court for an order granting leave to amend the complaint to “correct an inadvertent omission of facts with respect to the cause of action for breach of the Listing Agreement” and to “provide additional facts to establish alter ego liability against Defendant ZHIGANG YANG with respect to Defendant MOON MANAGEMENT CONSULTING, LLC’s actions, as well as against the DOE defendants in general.” (Motion, 2:7-11.)

The motion is granted. The motion reflects compliance with CRC Rule 3.1324(a) and counsel’s declaration reflects compliance with subsection (b). On October 21, 2019, the court summarily denied Plaintiffs’ Motion for Summary Adjudication in its entirety as against Zhigang Yang, on the basis that the complaint, inter alia, was devoid of alter ego allegations directed against Doe defendants. The court, on that date, further denied Plaintiffs’ Motion for Summary Adjudication as to the second cause of action (i.e., for Breach of Contract—Listing Agreement) against the other defendants on the basis that the “Listing Agreement, on its face, shows that the listing expired on July 5, 2016, over two months prior to the execution of the Lease” and that “[n]o extension of the term of the Listing Agreement was pled in Plaintiffs’ complaint.” Plaintiffs seek to correct the complaint to address these issues. Additionally, the June 22, 2020 trial date was vacated.

2. Motion to be Relieved Re: Shigang Li

Eugene S. Alkana, Esq. (“Alkana”) of Eugene S. Alkana, APLC, seeks to be relieved as counsel

of record for S. Li (“Client”).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of

justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.)

California Rule of Court (“CRC”) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure ; 284(2) is brought instead of filing a consent under section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)). The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.

Alkana states in his declaration that “[t]here has been a breakdown in the attorney-client relationship and inability to communicate with the client. Defendant has ample time to obtain replacement counsel, so he is not prejudice[d] if this motion is granted.”

Alkana states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with his declaration and that he has been able to confirm, within the past 30 days, that the address is current, via conversation.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above

have been sufficiently met. Accordingly, the motion is granted, contingent upon counsel for S.

Li’s production of a proof of service reflecting CCP ;1015 compliance regarding notice of the

July 8, 2020 hearing date/time and effective upon the filing of the proof of service showing

service of the signed order upon the Client.

3. Motion to Be Relieved as Counsel Re: Moon Management Consulting, LLC

Alkana also seeks to be relieved as counsel of record for Moon (“Client”).

Alkana states in his declaration that “[t]here has been a breakdown in the attorney-client relationship and inability to communicate with the client. Defendant has ample time to obtain replacement counsel, so he [sic] is not prejudice[d] if this motion is granted.”

Alkana states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with his declaration and that he has been able to confirm, within the past 30 days, that the address is current, via conversation.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above

have been sufficiently met. Accordingly, the motion is granted, contingent upon counsel for

Moon’s production of a proof of service reflecting CCP ;1015 compliance regarding notice of

the July 8, 2020 hearing date/time and effective upon the filing of the proof of service showing

service of the signed order upon the Client.

The court sets an Order to Show Cause Re: Representation of LLC for July 22, 2020, 10 a.m.

Motion to Be Relieved as Counsel Re: April Lin

Alkana seeks to be relieved as counsel of record for A. Lin (“Client”).

Alkana states in his declaration that “[t]here has been a breakdown in the attorney-client relationship and inability to communicate with the client. Defendant has ample time to obtain replacement counsel, so he [sic] is not prejudice[d] if this motion is granted.”

Alkana states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with his declaration and that he has been able to confirm, within the past 30 days, that the address is current, via conversation.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above

have been sufficiently met. Accordingly, the motion is granted, contingent upon counsel for A.

Lin’s production of a proof of service reflecting CCP ;1015 compliance regarding notice of the

July 8, 2020 hearing date/time and effective upon the filing of the proof of service showing

service of the signed order upon the Client.

5. Motion to Be Relieved as Counsel Re: Han International Group Inc. dba Han Realty

Alkana seeks to be relieved as counsel of record for Han (“Client”).

Alkana states in his declaration that “[t]here has been a breakdown in the attorney-client relationship and inability to communicate with the client. Defendant has ample time to obtain replacement counsel, so he [sic] is not prejudice[d] if this motion is granted.”

Alkana states that he has served the Client by mail at the Client’s last known address with copies of the motion papers served with his declaration and that he has been able to confirm, within the past 30 days, that the address is current, via conversation.

The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above

have been sufficiently met. Accordingly, the motion is granted, contingent upon counsel for

Han’s production of a proof of service reflecting CCP ;1015 compliance regarding notice of the

July 8, 2020 hearing date/time and effective upon the filing of the proof of service showing

service of the signed order upon the Client.

The court sets an Order to Show Cause Re: Representation of Corporation for

July 22, 2020, 10a.m.


[1] Motion #1 was filed and mail-served on March 5, 2020 and originally set for hearing on April 2, 2020. On March 18, 2020, the court rescheduled the hearing for Motion #1, on the court’s own motion, to June 11, 2020; the court provided notice of same. Motion #2 was filed and mail-served on March 18, 2020 and originally set for hearing on May 4, 2020. Motion #3 was filed on March 23, 2020 (mail-served on March 18, 2020) and originally set for hearing on May 4, 2020. Motions #4 and #5 were filed and mail-served on April 1, 2020 and originally set for hearing on May 22, 2020. On March 24, 2020, the court rescheduled the hearings for Motions #2 and #3, on the court’s own motion, to June 11, 2020; the court provided notice of same to counsel. On April 1, 2020, Plaintiffs filed (mail-served March 31, 2020 to counsel) a “Notice of Continuance of Trial and Two Hearings (Motion to Amend and Motion to be Relieved),” advising of the continued June 11, 2020 hearing date on Motions #1-#3. On April 16, 2020, the court continued the hearings on Motions #1-#5 to July 8, 2020; notice was provided to all counsel. On May 4, 2020, the court, on its own motion, continued the time of the July 8, 2020 hearing date (i.e., to 10:00 a.m.); notice was provided to all counsel. There is no indication on ecourt, as of June 26, 2020 at 8:32 a.m., that the clients re: Motions #2-#5 have been given notice of the July 8, 2020 hearing date/time.



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