Case Name: Nunez v. West Coast Wings Fremont, Inc., et al.
Case No.: 2016-1-CV-294599

This is a dispute as to the investment in a limited liability company. As alleged in the complaint, Plaintiff Sukanya Nunez (“Plaintiff”) is the surviving spouse and sole beneficiary of the estate of Benigno Nunez (“Benigno”). (See complaint, ¶ 2.) Benigno made capital investments in 2005 to West Coast Wings, LLC (“LLC”), with Tam Vu and Tony Lam and others. (See complaint, ¶ 19.) Two years later, the LLC formed and assigned its franchisee interest to WCW Union City. (Id.) The LLC later formed the other WCW entities named as defendants and distributed its assets among them. (Id.) In late 2009, Benigno Nunez stopped receiving dividend payments and in April 2010, he died. (See complaint, ¶ 21.) Plaintiff sought counsel to obtain the dividend payments since 2009, and the attorney for the West Coast Wings entities requested a probate court order in order for Plaintiff to receive the payments. In September 2013, Plaintiff obtained the court order to transfer all shares owned by Benigno to Plaintiff. Plaintiff began receiving some dividend checks, but the attorney for the West Coast entities stated that there were no other distribution checks after December 2014. In 2015, Plaintiff was elected as director of the LLC; however, in spite of her position, she has been unable to inspect the financial documents. (See complaint, ¶¶ 22-26.) Plaintiff contends that Lam, Vu and LaVigne are dominating the LLC, thereby preventing her from access to the records. (See complaint, ¶ 19.)

These parties have had issues with discovery throughout this action, and the Court has noted that the parties’ counsel did not understand what the term “compound” meant, and defendants’ counsel misunderstands the scope of relevance. Now, defendant Anh Tuan Lam aka Tony Lam (“Lam”) moves to compel further responses to requests for admissions numbers (“RFAs”) 3-5, 12-14, and 20-25 and form interrogatory number (“FI”) 17.1.

On January 12, 2017, Plaintiff served discovery responses. On January 19, 2017, defendants’ counsel sent a meet and confer email regarding certain FIs and RFAs 3-5, 12-14, and 20-25. The parties agreed to table discussions related to the responses until after defendants provided discovery responses related to WCW businesses. On July 10, 2017, defendants provided those responses, and on July 27, 2017, defendants’ counsel emailed Plaintiff’s counsel regarding the provision of amended responses, merely stating:

Now that you have been provided with Milpitas;; [sic] San Jose’s and Story’s discovery responses, I want to discuss your client’s evasive responses.

I emailed you back on or about January 19, 2017 a meet & confer letter, and now that you have all discovery, please confirm whether your client will amend her responses or not, otherwise, I will have a [sic] file a motion to compel further responses, which I rather not do.

Please respond by August 1, 2017, otherwise I will move forward with a motion to compel further responses.

(Pham decl., exh. 4.)

On August 3, 2017, Plaintiff served verified further responses to RFAs 3-5, 12-14 and 20-22.

Nevertheless, defendant Lam filed a motion to compel further responses to RFAs and FI 17.1 without further meet and confer efforts. Instead, Lam’s counsel provided a declaration merely stating that “[a]ny meet & confer efforts would be futile.” Lam also requests monetary sanctions.

Motion to compel further response to FI 17.1

Here, the separate statement does not include any responses or reference to FI 17.1. Rule of Court 3.1345, subdivisions (a)(2) and (c) require the moving party to include the text of the interrogatory, the text of the response, and, a statement of the factual and legal reasons for compelling further responses. In reply, Lam’s counsel argues that “Mr. Pham did not include Plaintiff [sic] amended responses to Form Interrogatory No. 17.1 because any amendment to Form Interrogatory No. 17.1 would be strictly contingent upon whether the Court compels Plaintiff to amend her responses to the Request for Admissions sought by this Motion and thus, Mr. Pham did not include Plaintiff’s amended responses to No. 17.1 because he did not think it was necessary to include such amended responses in the interest of judicial and party economy.” Aside from the argument being a run-on sentence, it also contradicts the plain language of the mandate of Rule of Court 3.1345. The motion to compel a further response to FI 17.1 is DENIED.

Motion to compel further responses to RFAs 3-5, 12-14, 20-25

Lam’s counsel, Mr. Bao-Quan P. Pham, apparently believes that he adequately met and conferred regarding the amended responses provided on August 3, 2017, when he emailed Plaintiff’s counsel in January 2017, and then followed up without any further specificity on July 27, 2017—again, prior to the receipt of the amended responses. Yet, in reply, Mr. Pham asks “how can Mr. Jiang honestly claim that Mr. Pham has not reasonably met & conferred, when he has done so on at least three separate attempts without any meaningful change from Plaintiff?” Mr. Pham apparently fails to understand the concept of meeting and conferring. The Santa Clara County Bar Association Code of Professionalism mandates that “[a] lawyer should engage in a meaningful and good faith effort to resolve discovery disputes and should only bring discovery issues to the court for resolution after these efforts have been unsuccessful.” (Santa Clara County Bar Association Code of Professionalism, § 9 (“Discovery”); id. at § 10 (“Motion Practice”) (stating that “[a] lawyer should engage in a good faith effort to resolve the issue before filing a motion… [i]n particular, civil discovery motions should be filed sparingly… [a] lawyer should speak personally with opposing counsel or a self-represented litigant and engage in a good faith effort to resolve or informally limit an issue in complying with any meet and confer requirement imposed by law”).) Here, Mr. Pham did not even contact Plaintiff’s counsel after he received the amended responses. Lam cannot claim to have met and conferred in good faith as to any of the RFAs, but particularly as to RFAs 3-5, 12-14 and 20-22.

As to RFAs 23-25, Plaintiff unqualifiedly denied the responses. Mr. Pham’s arguments presented in his meet and confer efforts are simply inapplicable to the responses to RFAs 23-25. It appears that Mr. Pham mistakenly sought to compel further responses to RFAs 23-25 as a result of miscommunication in the January meet and confer efforts. Regardless, Lam does not articulate a basis to compel any further responses to RFAs 23-25.

The motion to compel further responses to RFAs 3-5, 12-14 and 20-25 is DENIED.

Requests for monetary sanctions

In connection with his motion to compel further responses, Lam requests monetary sanctions in the amount of $2,660 against Plaintiff. Lam did not substantially prevail in his motion. Additionally, considering Lam’s counsel’s lacking meet and confer efforts, the request for monetary sanctions for five hours of meet and confer efforts is excessive. Lam’s request for monetary sanctions is DENIED.

In connection with his opposition to the motion to compel, Plaintiff requests monetary sanctions in the amount of $2,870 against Lam and his counsel. The request is code compliant. Plaintiff has substantially prevailed in opposing the motion. Lam’s counsel did not act with substantial justification in making the motion and there are no other circumstances that make the imposition of the sanction unjust. However, the amount of the monetary sanctions sought is excessive. Moreover, the circumstances are the error of Lam’s counsel. Accordingly, Plaintiff’s request for monetary sanctions is GRANTED in the amount of $1,000 against counsel for defendant Lam, Bao-Quan P. Pham. Defendant Lam’s counsel, Bao-Quan P. Pham, shall pay counsel for Plaintiff $1,000 within 10 days of this Order.

The Court shall prepare the Order.