Case Number: 19PSCV00181 Hearing Date: February 18, 2020 Dept: J

HEARING DATE: Tuesday, February 18, 2020

NOTICE: Motions #1 and #2: OK[1]

RE: He v. Chen, et al. (19PSCV00181)

______________________________________________________________________________

1. Plaintiff Carrien Qian He’s MOTION TO COMPEL [FURTHER] RESPONSES TO REQUESTS FOR ADMISSIONS, SET ONE

Responding Party: Defendant, Jay Min Chen[2]

2. Plaintiff Carrien Qian He’s MOTION TO COMPEL [FURTHER] RESPONSES TO FORM INTERROGATORIES, SET ONE

Responding Party: Defendant, Jay Min Chen

3. Plaintiff’s Carrien Qian He’s MOTION FOR PRELIMINARY INJUNCTION

Responding Party: Defendant, Jay Min Chen.

Tentative Ruling

1. Plaintiff Carrien Qian He’s Motion to Compel Further Responses to Requests for

Admissions, Set One is GRANTED. Chen ordered to provide further, verified responses to

Plaintiff’s Requests for Admissions, Set One within 15 days. Sanctions are awarded against

Chen and his attorneys of record, jointly and severally, in the reduced amount of $510.00,

and are payable within 30 days.

2. Plaintiff Carrien Qian He’s Motion to Compel Further Responses to Form

Interrogatories, Set One is GRANTED. Chen is ordered to provide further, verified

responses to Plaintiff’s Form Interrogatories, Set One (Nos. 2.5 and 17.1 as it pertains to

Requests for Admissions Nos. 2-7, 13-17 and 25-39) within 15 days. Sanctions are awarded

against Chen and his attorneys of record, jointly and severally, in the reduced amount of

$510.00, and are payable within 30 days.

3. Plaintiff Carrien Qian He’s Motion for Preliminary Injunction is DENIED.

Background

Plaintiff Carrien Qian He (“He”) alleges that, on or about October 11, 2016, Jay Min Chen (“Chen”) and Hui Kwong Hung aka William Kwong Hung and William Kwong Hung (“Hung”) told Plaintiff that (1) Plaintiff, Chen and Hung would jointly open, own and operate a Golden Corral restaurant in which Plaintiff would own 50%, Chen would own 42% and Hung would own 8% and that (2) they would split the profits of the restaurant proportionally to their respective ownership percentages. Pursuant to their conversations, Plaintiff, Chen and Hung entered into a Golden Corral Franchise Agreement and incorporated Golden Globalinks (“Globalinks”) for the purpose of operating a Golden Corral restaurant in Ontario. At the first Globalink shareholder’s meeting, Plaintiff, Chen and Hung were given proportional ownership stock shares, Plaintiff and Chen were appointed as Directors, and Plaintiff became Chief Executive Officer, Secretary Chief Financial Officer, President, and Chairman of the Board of Directors. On or about August 1, 2016, Globalinks entered into a Standard Form Shopping Center Lease (“Lease”) for the restaurant. On or about April 4, 2017, Globalinks obtained a $2,136,000.00 Small Business Administration (“SBA”) loan from United Pacific Bank (“Bank”) for the purpose of renovating and constructing, as well as equipment for, the restaurant. Plaintiff alleges that since October 2016, Chen and Hung, by utilizing a shell corporation, XTR LLC, have conspired and engaged in embezzling and converting Globalinks’ assets for their own personal gain. Plaintiff alleges that on October 18, 2018, without authorization, Chen and Hung filed a new statement of information with the California Secretary of State, naming Hung a Director of Globalinks.

Chen, in turn, seeks the involuntary dissolution of Globalinks and alleges that He has engaged in “brutal physical attacks” on Chen.

On February 20, 2019, He filed a complaint, asserting causes of action against Defendants Chen, Hung and XTR, Nominal Defendant Globalinks and Does 1-30 for:

Conversion

Unauthorized Transfer of Corporate Assets

Breach of Fiduciary Duty

Embezzlement

Fraud and Concealment

Negligent Misrepresentation and Concealment

Unjust Enrichment

Removal of Director Corp Code § 304

Accounting

Declaratory Relief

Violation of Business & Professions Code §§ 17200, et seq.

On March 29, 2019, He filed a “Notice of Errata” to the complaint. On April 15, 2019, Chen filed a First Amended Cross-Complaint (“FACC”) asserting causes of action against Globalinks, He and Roes 1-10 for:

Involuntary Dissolution

Battery

On October 29, 2019, He dismissed Hung with prejudice.

The Final Status Conference is set for April 20, 2020. Trial is set for April 28, 2020.

1. Motion to Compel Furthers Re: Requests for Admissions

Legal Standard

A party may move to compel further responses to requests for admission if the propounding party deems that (1) an answer to a particular request is evasive or incomplete, or (2) an objection to a particular request is without merit or too general. (CCP § 2033.290(a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (CCP §§ 2016.040, 2033.290(b)(1).)

Notice of the motion must be provided within 45 days of service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing. (CCP § 2030.300(c).) The responding party has the burden of justifying the objections to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. (CCP § 2033.290(b)(2).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories or requests for admissions, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make it unjust to impose sanctions. (CCP § 2033.290(d).)

Discussion

Plaintiff moves the court for an order compelling Chen to provide further responses to Plaintiff’s Requests for Admissions, Set One, Nos. 2-7, 13-17 and 25-39. Plaintiff further seeks sanctions in the amount of $2,805.00 against Chen and his attorneys of record.

November 5, 2018 General Order

Pursuant to the November 5, 2018 General Order Re Mandatory Electronic Filing for Civil (“General Order”), litigants are required to provide printed courtesy copies of all filings, including pleadings and motions (including attachments such as declarations and exhibits) of 26 pages or more, pleadings and motions that include points and authorities and Motions to Compel Further Discovery. Here, the court did not receive a courtesy copy of the papers filed by Plaintiff. Counsel for Plaintiff is admonished. Counsel is instructed to comply with the court’s General Order in future filings.

Merits

On July 15, 2019, Plaintiff propounded the subject discovery. (Yabko Decl., ¶3, Exh. A.) Chen was subsequently granted extensions up until September 5, 2019 to provide responses. (Id., ¶4.) Plaintiff received Chen’s responses on September 5, 2019. (Id., ¶5, Exh. B.) On September 12, 2019, Plaintiff’s counsel Ryan Yabko (“Yabko”) sent a meet and confer letter to Chen’s counsel Stephan Thomas (“Thomas”), wherein he requested further responses by September 20, 2019. (Id., ¶6, Exh. C.) Yabko subsequently gave Thomas until September 30, 2019 within which to respond to the September 12, 2019 meet and confer letter. (Id., ¶7.) On September 30, 2019, Thomas responded to the meet and confer letter and agreed to provide further responses to some of the requests in issue. (Id., ¶7, Exh. D.) On October 4, 2019, Yabko sent a second meet and confer letter to Thomas, requesting a response by October 8, 2019. (Id., ¶8, Exh. E.) On October 8, 2019, Thomas requested an extension to respond. (Id., ¶9.) Yabko asked for clarification as to whether the extension was either to provide further responses or simply to respond to the October 4, 2019 letter, but did not receive a clear response. (Id.) Yabko advised that Chen could provide a response by October 11, 2019, but that a motion to compel furthers would be filed if no responses were received. (Id.) Yabko received Chen’s Amended Responses on October 15, 2019, but they did not address any of the requests at issue. (Id., Exh. F.) The motion was filed on October 18, 2019.

Again, the Requests for Admissions in dispute are Nos. 2-7, 13-17 and 25-39.

Nos. 2-6 and 36-39

Chen’s objection that Nos. 2-6 and 36-39are “harassing” is not well-taken. Chen has not shown that the requests are unduly repetitive or that preparing responses would somehow impose an “unjust burden” on him. (Cembrook v. Sup. Ct. (Sterling Drug, Inc.) (1961) 56 Cal.2d 423, 428.) Also, responses to requests for admission “shall be as complete and straightforward as the information reasonable available to the responding party permits” (CCP § 2033.220(a)); accordingly, Chen’s reference to other discovery responses is improper. Further responses are warranted.

Nos. 7 and 13-17

Chen’s “vagueness” objections are not well-taken. The requests are reasonably straightforward. Chen owes a duty to respond in good faith as best as he can, and may not deliberately misconstrue a question so as to provide an evasive answer. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Further responses are warranted.

Nos. 25-35

Chen’s relevancy objection is not well-taken, inasmuch as this case pertains to Plaintiff’s and Chen’s ownership interests in, and operation of, the restaurant via Globalinks.

The motion, then, is GRANTED in its entirety. Chen is ordered to provide further, verified

responses to Plaintiff’s Requests for Admissions, Set One within 15 days.

Sanctions

Plaintiff seeks sanctions in the amount of $2,805.00 against Chen and his attorneys of record [calculated as follows: 5 hours meeting/conferring, plus 1.7 hours preparing motion, plus 4 hours traveling to/from hearing, plus 1.5 hours appearance time at $225.00/hour, plus $60.00 filing fee]. The court determines that the sanctions request is excessive. The court awards sanctions, jointly and severally against Chen and his attorneys of record, in the reduced amount of $510.00 (i.e., 2 hours at $225.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days.

2. Motion to Compel Furthers Re: Form Interrogatories

Legal Standard

A party may move to compel further responses to interrogatories if the propounding party deems that (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, or (3) an objection to an interrogatory is without merit or too general. (CCP § 2030.300(a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (CCP §§ 2016.040, 2030.300(b).)

Notice of the motion must be provided within 45 days of service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing. (CCP § 2030.300(c).) The responding party has the burden of justifying the objections to the requests. (Coy, supra, 58 Cal.2d 210 at 220-221.)

In lieu of a separate statement required under the CRC, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. (CCP § 2030.300(b)(2).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories or requests for admissions, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make it unjust to impose sanctions. (CCP § 2030.300(d).)

Discussion

Plaintiff moves the court for an order compelling Chen to provide further responses to Form Interrogatories, Set One, Nos. 2.5 and 17.1. Plaintiff further seeks sanctions in the amount of $2,737.50 against Chen and his attorneys of record.

November 5, 2018 General Order

Counsel for Plaintiff is admonished for failing to comply with the court’s November 5, 2018 General Order (“General Order”). Counsel is instructed to comply with the court’s General Order in future filings.

Merits

See synopsis of Motion #1.

Again, the Form Interrogatories in dispute are Nos. 2.5 and 17.1.

Chen has failed to answer No. 2.5 and each of its subparts. No. 2.5 is merely designed to elicit the residential history of parties. Chen has not interposed an objection. A further response to same is warranted.

As to No. 17.1, Chen must provide a further response as it pertains to Requests for Admissions Nos. 2-7, 13-17 and 25-39, based upon the ruling made on Motion #1.

The motion, then, is GRANTED. Chen is ordered to provide further, verified responses to

Plaintiff’s Form Interrogatories, Set One (Nos. 2.5 and 17.1 as it pertains to Requests for

Admissions Nos. 2-7, 13-17 and 25-39) within 15 days.

Sanctions

Plaintiff seeks sanctions in the amount of $2,737.50 against Chen and his attorneys of record [calculated as follows: 5 hours meeting/conferring, plus 1.4 hours preparing motion, plus 4 hours traveling to/from hearing, plus 1.5 hours appearance time at $225.00/hour, plus $60.00 filing fee]. The court determines that the sanctions request is excessive. The court awards sanctions, jointly and severally against Chen and his attorneys of record, in the reduced amount of $510.00 (i.e., 2 hours at $225.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days.

3. Motion for Preliminary Injunction

Legal Standard

“The purpose of a preliminary injunction is the preservation of the status quo until a final determination of the merits of the action.” (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 832.) “To issue an injunction is the exercise of a delicate power, requiring great caution and sound discretion, and rarely, if ever, should be exercised in a doubtful case.” (Willis v. Lauridson (1911) 161 Cal. 106, 117.)

“In considering whether to issue a preliminary injunction, a court evaluates two interrelated factors: the likelihood plaintiff will prevail on the merits at trial and the interim harm to plaintiff or defendant if the court denies or grants the preliminary injunction. Plaintiff carries the burden of proof and persuasion on these issues.” (Drakes Bay Oyster Co. v. California Coastal Com. (2016) 4 Cal.App.5th 1165, 1171.)

“The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction.” (Butt v. State of California (1992) 4 Cal.4th 668, 678.) “[A]n injunction should not issue where there is no possibility of success even though its issuance might prevent irreparable harm. . . Where there is indeed no likelihood that the plaintiff will prevail, an injunction favoring the plaintiff serves no valid purpose and can only cause needless harm.” (American Academy of Pediatrics v. Van de Camp (1989) 214 Cal.App.3d 831, 838.)

Discussion

Plaintiff moves the court for a preliminary injunction, enjoining Chen from (1) visiting the Globalinks restaurant, (2) contacting any of the Globalinks restaurant’s employees, (3) visiting Plaintiff and any member of Plaintiff’s family’s residences and from (4) contacting Plaintiff and any member of her family.

Plaintiff’s request is DENIED. Plaintiff has failed to establish the likelihood she will prevail on the merits at trial and/or that she will suffer more harm if the relief is denied than Chen would suffer if the relief is granted.

There is no indication that Chen has visited Plaintiff’s residence since November 24, 2019. Plaintiff has not provided the court with a translation of the allegedly “threatening” note left by Chen at Plaintiff’s residence on November 24, 2019. There is no indication that Chen has had contact with Plaintiff’s family members since before November 24, 2019. Plaintiff has not submitted declarations from any of her family members.

It is undisputed that Chen is a partial owner of the restaurant; as such, he has a financial interest therein. There is no indication that Chen has visited the restaurant since January 3, 2020. The text message attached as Exhibit C to Plaintiff’s declaration is not authenticated and is not threatening in nature. Plaintiff represents that on January 8, 2020 Chen contacted “manager Ramiro;” no declaration, however has been provided from this individual. Although Plaintiff has provided declarations from business managers Felix Diaz Brido (“Brido”) and Patricia Ochoa (“Ochoa”), it is unclear that Brido and Ochoa personally observed the events of December 24, 2019, January 1, 2020 and January 2, 2020 or, if they did, that Chen communicated with either of them directly. There are no declarations from any employees corroborating Brido’s and Ochoa’s statements that Chen “forced [them] to exchange phone numbers and informed them contact [sic] for information,” “demand[ed] that they give him their personal cell phone number,” “told the employees not to tell anybody that they were giving him their cell phone number,” “stated he was an only owner so they had to comply with what he said,” “he told employees he was the only boss and they had to do what he said,” that [h]e told the employees that if they won’t listen, then they will get fired by him,” and that Chen videotaped employees without their permission. (Brido Decl., ¶¶4-5; Ochoa Decl., ¶¶4-5.)

[1] On January 9, 2020, Plaintiff filed an “Ex Parte Application for (1) An Immediate Temporary restraining Order, an Order Shortening Time to Hear Plaintiff’s Motion for Preliminary Injunction and (2) Advancing Plaintiff’s Motions to Compel Defendant Chen’s Discovery Responses;” Chen filed an opposition thereto that same day. On January 10, 2020, the court granted the ex parte application in part, only as to the Order Shortening Time to hear Motion for Preliminary Injunction. The court scheduled a hearing on Motion for Preliminary Injunction for February 18, 2002 and ordered moving party to give notice. On January 21, 2020, Plaintiff filed a “Notice of Hearing,” advising therein of the February 18, 2020 hearing date; it had been mail-served on January 10, 2020.

[2] Oppositions to Motions #1 and #2 served contrary to CCP § 1005(c).