Case Number: KC069018 Hearing Date: May 24, 2018 Dept: J

Re: Jun Zhou, et al. v. Tony Yu, etc., et al. (KC069018)

MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF FORM INTERROGATORIES PROPOUNDED TO DEFENDANT EAST MISSION 8 AND FOR MONETARY SANCTIONS

Moving Party: Plaintiff Jun Zhou

Respondent: Defendant East Mission 8 Investment, Inc.

POS: Moving OK; Opposing OK

Plaintiffs are Chinese residents who decided to look into the California real estate investment market, with the intention of locating an upscale residential property, purchasing same and then either living in it or leasing it. Plaintiffs alleges that they entered into an oral contract with Tony Xz Yu (“Yu”) wherein Yu would locate a suitable property, negotiate on their behalf and then arrange the paperwork for the purchase of same. Yu thereafter located the residential property located at 3068 Windmill Drive in Diamond Bar (“subject property”) for their purchase, but allegedly misrepresented the amount of the sales price, real estate transfer fees and fees for build-ins and fixtures. Plaintiffs further allege that an unknown person forged their names on a grant deed transferring the Subject Property to Zhidong Li (“Li”). Li subsequently deeded the Subject Property back to plaintiffs. The complaint was filed on 1/19/17. The First Amended Complaint, filed 3/14/17, asserts causes of action therein for:

1. Fraud

2. Identity Theft

3. Breach of Fiduciary Duty

4. Negligence

5. Violation of the Racketeer Influenced and Corrupt Organizations Act

On 7/7/17, plaintiff dismissed Brenda Fonmin and John L. Fonmin, with prejudice. On 7/7/17, plaintiff dismissed Brenda Fonmin and John L. Fonmin, with prejudice.

The Second Amended Complaint, deemed filed 12/1/17, asserts causes of action therein for:

6. Fraud

7. Identity Theft

8. Breach of Fiduciary Duty

9. Negligence

10. Violation of the Racketeer Influenced and Corrupt Organizations Act

11. Negligence

12. Aiding and Abetting

On 12/5/17, Defendants East Mission 8 Investment Inc. and South Fremont 8 Investment, Inc. filed their cross-complaint, asserting causes of action therein for:

1. Equitable Indemnity

2. Quantum Meruit

A Case Management Conference is set for 6/15/18.

Plaintiff Jun Zhou (“plaintiff”) moves the court, per CCP § 2030.300, for an order compelling Defendant East Mission 8 Investment Inc. (“defendant”) to provide further responses to her Form Interrogatories—General, Set No. One (i.e., Nos. 15.1 and 17.1(d)). Plaintiff also seeks an award of $1,260.00 in sanctions against defendant.

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.” CCP § 2030.300(a). “A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP § 2030.300(b). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” CCP § 2030.300(b).

Zhou served the subject discovery on 5/7/17. (Li Decl., ¶ 2, Exhibit “A”). On 5/19/17, defendant served its responses, which consisted of an objection that the subject discovery violated CCP § 1030(e). On 8/28/17, defendant provided responses. These are not attached in support of the motion. On 11/30/17, Zhou and Plaintiff Yijuan Huang’s “Motion to Compel Answers and Responses to Discovery Without Objection or in the Alternative, to Compel Further Answers and Responses without Objection” was ordered off calendar. On 12/29/17, defendant provided responses. (Chen Decl., ¶ 5, Exhibit “E”). On 1/12/17, Zhou’s counsel Yichang Chen (“Chen”) sent a meet and confer letter to defendant’s counsel Tom Tsay (“Tsay”), requesting, inter alia, further responses to Form Interrogatories Nos. 1.1, 15.1 and “17” (regarding Requests for Admissions [“RFA”] Nos. 6 and 15-17) by 1/19/18. (Id.). On 1/22/18, Chen sent a further meet and confer letter to Tsay, requesting that defendant produce documents identified in its responses to Form Interrogatories Nos. 15.1 and 17.1(d) by the end of 1/26/18. (Id.). On 2/5/18, defendant served further responses. (Id., ¶ 6, Exhibit “F”). Defendant produced “some responsive documents” on 2/21/18. (Id.). On 3/5/18, Chen sent another meet and confer letter to Tsay, requesting, inter alia, further responses to Form Interrogatories Nos. 15.1, “17” (regarding RFA Nos. 15-16) and 17.1(c) & (d). (Id.). No further responses were received. (Id.).

The 45-day deadline for filing this instant motion would have commenced running, at the latest, when “some responsive documents” were produced on 2/21/18. This instant motion, however, was not filed until well after the deadline had expired, on 5/2/18.

“Delaying the motion beyond the 45-day time limit waives the right to compel a further response to the interrogatories. [CCP § 2030.300(c); see Vidal Sassoon, Inc. v. Sup. Ct. (Halpem) (1983) 147 Cal.App.3d 681, 685—court lacks jurisdiction to order further answers after 45 days].” Weil & Brown, et al., CAL.PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 8:1146 (emphasis theirs).

In reply, Zhou claims that
the motion is not untimely, because Chen sent a meet and confer letter to Tsay
on 3/5/18, requesting further responses by 3/6/18, and, in response, received a
letter on 3/6/18 “ask[ing] Plaintiff to hold off on the motion until after
March 15, 2018, clearly an acknowledgment of the extension.” (Reply, 3:22-24).
That is not how the 3/6/18 letter reads; rather, the letter, which was from
Tsay’s assistant, James Hsiao, reads as follows:

“We are in receipt of your
meet and confer letter dated March 5, 2018 demanding our clients East Mission 8
Investment Inc. and South Fremont 8 Investment Inc. to provide you with further
responses to the above-referenced discovery matters by March 6, 2018 or you
will file motions to compel. This letter informs you that as stated in ‘Notice
of Unavailability,’ attorney Tom C. Tsay is currently in Taiwan taking care of
his family matters and will not be back until after March 15, 2018. Please
discuss the issues with him after he returns to the States…” (Reply, Chen
Decl., ¶ 6, Exhibit “E”).

The 3/6/18 letter in no way
indicated that Tsay “promised” to respond after 3/15/18 or granted Zhou an
extension of time to file the motion, and Chen does not advise the court as
to what efforts he made, if any, to contact Tsay on or after 3/15/18. Chen still had adequate opportunity to timely file this motion after the 3/15/18 date that Tsay was to return.

The motion, then, is denied. The court awards sanctions to defendant in the reduced amount of $375.00 (i.e., $250.00/hour for 1.5 hours opposition drafting/appearance time), payable by counsel for plaintiff to counsel for defendant within 10 days.