James Kim v. Anh Vu, et al.		CASE NO. 113CV252824
DATE: 7 November 2014	TIME: 9:00	LINE NUMBER: 6

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 6 November 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 6 November 2014, the motion of plaintiff James Kim to compel [further responses to] Request for Production of Documents & Inspection Demand; for Attorney Fees, Expense, and Sanctions was argued and submitted. Defendant Anh Vu filed a formal opposition to the motion and requests monetary sanctions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

1. Statement of Facts

Plaintiff James Kim (“Kim”), a California licensed attorney[2], alleges that on or about 15 July 2012, police arrived at his house due to a loud argument between Thuy Pham (“Pham”) and Pham’s parents. (Complaint, ¶¶1 and 5.) Defendant Anh Vu (“Vu”) defamed Kim by making the following false and unprivileged statements: (1) Kim was not a good person; (2) Kim was a type of person who steals and defrauds people for money; (3) Vu knew Kim was not honest and is an unethical attorney. (Complaint, ¶7.) Kim first learned of Vu’s defamatory statements in August 2013. (Complaint, ¶7.)

On 11 September 2013, Kim filed a complaint against Vu asserting a single cause of action for defamation (slander). On 10 October 2013, Vu responded by filing a demurrer and special motion to strike (anti-SLAPP) Kim’s complaint. On 12 December 2013, the court (Hon. Kirwan) denied Vu’s special motion to strike and overruled Vu’s demurrer. On 18 December 2013, Vu filed an answer to the complaint.

On 5 September 2014, Kim filed a Doe amendment naming Olivia Nguyen, Ronald Talmo, Nguyen Duy Cuong, Trung Pham, Tao Pham, Be Truong, and An Duc Nguyen as defendants.

On 10 September 2014, Kim filed a motion for leave to amend the complaint.  He sought to add causes of action for 1) libel, 2) slander, 3) public disclosure of private acts, 4) false light, 5) negligence, 6) abuse of process, 7) violation of Penal Code § 11172—false report, 8) conspiracy, 9) aiding and abetting, & 10) injunctive relief.

On 14 October 2014, the Court (Hon. Lucas) denied Kim’s motion for leave to amend, purportedly due to “Plaintiff’s failure to comply with CCP § 1710.4.”  (Plaintiff’s reply brief, page 1, line 28.)[3]

1. Discovery Dispute

On 24 September 2013, plaintiff Kim served defendant Vu with a first set of requests for production of documents and inspection demand (“RPD”). (See ¶3, Declaration of James T. Kim in Support of Motion to Compel, etc. (“Declaration Kim”).) [Defendant Vu’s counsel declares plaintiff served the RPDs at issue on 17 April 2014. (See ¶1, Declaration of Scott D. Hughes in Support of Defendant’s Opposition, etc. (“Declaration Hughes”).) Since timing is not at issue in this motion, the court need not resolve this factual discrepancy.]

Discovery was stayed in October 2013 when Vu filed her special motion to strike. (See ¶4, Declaration Kim.) After the court denied Vu’s special motion to strike, plaintiff Kim extended the time for Vu to respond to the RPDs until 22 May 2014. (See ¶¶4 – 5, Declaration Kim.)

On 27 May 2014, defendant Vu served plaintiff Kim, by mail, with her responses to RPDs. (See ¶6, Declaration Kim; see ¶2, Declaration Hughes.)

Unsatisfied with Vu’s responses to RPDs, plaintiff Kim sent a meet and confer letter to Vu on 11 August 2014. (See ¶7, Declaration Kim.)

On 27 August 2014, Vu served plaintiff Kim, by mail, with supplemental responses to RPDs. (See ¶7, Declaration Kim; see ¶4, Declaration Hughes.)

Unsatisfied with Vu’s supplemental responses to RPDs, plaintiff Kim sent a meet and confer letter to Vu on 9 September 2014. (See ¶8, Declaration Kim.)

On 12 September 2014, Vu served plaintiff Kim, by mail, with further supplemental responses to RPDs. (See ¶9, Declaration Kim.) The further supplemental responses were identical to the supplemental responses Vu previously served on 27 August 2014. (See ¶10, Declaration Kim.) [Defendant Vu’s counsel denies serving further supplemental responses. (See, ¶6, Declaration Hughes.) Vu’s counsel acknowledges, however, that Vu reaffirmed her supplemental responses. (Id.)]

On 16 September 2014, plaintiff Kim filed the instant motion to compel seeking further responses to RPD, Nos. 1 – 6, 8, 9, and 12 – 15.

On 27 October 2024, defendant Vu filed an opposition to the motion.

On 31 October 2014, plaintiff Kim filed a reply brief.

III.     Discussion

1. Motion to Compel Further Response to RPD
2. 1.            Legal Standard

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

• A statement of compliance with the demand is incomplete.
• A representation of inability to comply is inadequate, incomplete, or evasive.
• An objection in the response is without merit or too general.

(Code Civ. Proc. [“CCP”], § 2031.310, subd. (a)(1) – (3).) The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP, § 2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.)

To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.)  Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

2. Good Cause

Plaintiff’s RPDs seek, generally, telephone records and documents evidencing communications between Vu and Pham’s parents, Vu’s sister, or others regarding plaintiff Kim.

In support of good cause, plaintiff Kim contends Vu’s responses to the RPDs are untruthful and/or not made in good faith. Plaintiff also contends the evidence is relevant to establishing communications existed between Vu and Pham’s parents. Plaintiff contends such circumstantial evidence would tend to prove plaintiff’s claims for conspiracy and/or aiding and abetting. However, no such claims have been made in the complaint and the court denied plaintiff’s motion for leave to amend due to the failure to comply with Civil Code, § 1714.10.[4] Plaintiff also notes that Vu has waived any objections due to her untimely response. However, Vu does not assert any objections in her response to the RPDs.

That Plaintiff Kim believes Vu’s responses to be untruthful and/or not made in good faith is not a sufficient showing of good cause.

3. Merits

Even if plaintiff had established good cause, there is no legal basis to compel any further response. Defendant responded to each of the RPDs with the following: “Following a diligent and reasonable inquiry for the requested documents, Defendant has determined that there is none in her possession, custody or control. Defendant does not know who might have such documents.”

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., §2031.230.)

In reply, plaintiff Kim contends Vu’s responses are still inadequate because the further supplemental responses were unverified.

However, in reviewing the evidence before the court, Vu provided a verification to her supplemental responses which were served on 27 August 2014. (See ¶4 and Exh. A, Declaration Hughes.) Since the further supplemental responses purportedly served on 12 September 2014 were substantively identical to the supplemental responses served on 27 August 2014, no further verification was necessary.

Defendant’s response is not inadequate, incomplete, or evasive. Consequently, Plaintiff Kim’s motion to compel further responses to RPDs is DENIED.

1. Request for Sanctions

“Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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., §2031.310, subd. (h).)

Since plaintiff did not prevail on this motion, his request for monetary sanctions is DENIED.

Defendant makes a counter request for monetary sanctions. In support of this request, defendant’s counsel declares he spent 8 hours preparing the opposition at the billing rate of $250 per hour. Defendant’s counsel anticipates spending another hour to review plaintiff’s reply and to prepare/ argue at the hearing. Defendant’s counsel also anticipates incurring $86 to participate at the hearing by Court Call.

The Court awards sanctions only for expenses actually incurred, not for anticipated expenses. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Defendant Vu’s request for monetary sanctions is GRANTED in the amount of $2,000.

1. Conclusion and Order

Plaintiff Kim’s motion to compel further responses to RPDs is DENIED.

Plaintiff Kim’s request for monetary sanctions is DENIED.

Defendant Vu’s request for monetary sanctions is GRANTED in the amount of $2,000. Plaintiff Kim shall pay $2,000 to defendant Vu within 20 calendar days of the date of the filing of this Order.

 

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[2] “The first page of each paper it must be in the following form: (1) In the space commencing 1 inch from the top of the page with line 1, to the left of the center of the page, the name, office address or, if none, residence address or mailing address (if different) telephone number, fax number and e-mail address (if available), and State Bar membership number of the attorney for the party and whose behalf the paper is presented, or of the party if he or she is appearing in person.”  (Rule of Court 2.111(1).)

[3] There is no such statute.  A review of the minute order for 14 October 2014 states that the motion was denied because of the “failure to comply with CCP 1714.10.”  This statute concerns causes of action against an attorney based on civil conspiracy with a client.”`

[4] Discovery is allowed for any matter that is not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.)  This Court is aware of the doctrine that deficiencies in the pleadings do not affect either party’s right to conduct discovery. (See Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794, 798; Union Mutual Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1, 12; Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436.)  “[I]t is well established that relevancy of the subject matter does not depend upon a legally sufficient pleading, nor is it restricted to the issues formally raised in the pleadings.  Relevancy of the subject matter is determined by the potential as well as actual issues in the case [citation omitted]; discovery is proper if it would be material to any possible issue raised by new allegations in an amended complaint.”  Union Mut. Life Ins. Co. v. Superior Court at 10.

However, the legislative purpose of § 1714.10 is to eliminate frivolous allegations that attorneys have conspired with their clients.  Judge Lucas recognized that the purpose is served by a construction that requires a prefiling procedure to determine whether the proposed conspiracy pleading is legally sufficient, and whether it is supported by a sufficient prima facie showing of facts to sustain a favorable decision if the evidence submitted by the petitioner is credited. If either of these requirements is not met, the petition must be denied.  If both are satisfied, it must be granted. This is a determination of law, not of fact. So construed, the statute provides a vehicle to preclude frivolous allegations of conspiracy without subjecting the allegations to a fact adjudicative screen that would violate the right to a jury trial (Cal. Const., art. I, § 16; Hung v. Wang (1992) 8 Cal App 4th 908. 

This Court therefore believes that the situation might be an exception to the general rule of discoverability stated above.