Case Number: EC066372 Hearing Date: June 08, 2018 Dept: NCD

TENTATIVE RULING

Calendar: 10

Date: 6/8/18

Case No: EC 066372

Case Name: Cheng, et al. v. Yang Trial Date: October 15, 2018

MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES

(CCP § 2030.300, et seq.)

Moving Party: Plaintiff Bi Qin Cheng

Responding Party: Defendant Xiao Qing Yang, in pro per (No Opposition)

RULING:

[No Opposition]

Plaintiff Bi Qin Cheng’s Motion to Compel Further Responses from Defendant Xiao Qing Yang to Plaintiff Bi Qin Cheng’s Form Interrogatories—General (Set No. One) is GRANTED.

Defendant Xiao Qing Yang is ordered to serve further complete responses to Form Interrogatories Nos. 15.1, and 50.2 through 50.6, inclusive, which provide all information requested, within ten days.

Further responses to be served within ten days.

Monetary sanctions in the amount of $1,460.00 [$1,985 requested] are awarded against defendant Xiao Qing Yang, payable within 30 days to plaintiff’s counsel. CCP sections 2030.300(d), 2031.310(d), 2023.010(f), 2023.030(a).

There is an untimely opposition filed (5 court days late). It does not address this motion, but opposes a demurrer and will not be considered by the court. Hence, the court in its discretion has refused to consider the untimely “Opposition,” filed five court days late, and which does not address the motion on calendar.

RELIEF REQUESTED:

Further Responses to Form Interrogatories—General (Set No. One)

CHRONOLOGY

Date Discovery served: December 7, 2017

Date Responses served: January 25, 2018 untimely

Date Motion served: March 23, 2018 timely (Extension, Ex. 1) de

Meet and Confer? Decl., para. 7 (Defendant will not speak to plaintiff’s counsel)

FACTUAL BACKGROUND:

Plaintiffs Bi Qin Cheng and Chang Zheng Zou allege that in September of 2006, they entered into an oral agreement with Bi Hang Cheng and defendant Xiao Qing Yang to collectively purchase real property in Ontario. Plaintiffs allege that it was agreed that the parties would share in the liabilities and profits of the property, holding the property as tenants in common, and that all profits would be shared based on each purchaser’s interest in the subject property. Bi Hang Cheng is not a party to this action, but was a purchaser of the property.

The parties sold the subject property, and escrow closed in November of 2014. In October of 2016, plaintiffs discovered that defendant had caused plaintiff to receive incorrect shares of the sales proceeds and that there were certain deductions listed in the Final Settlement Statement which plaintiffs sought to have verified. Plaintiffs allege that defendant included in the final settlement of the subject property her own personal liabilities, such defendant’s personal liability to a law firm, as well as various fraudulent charges, and made various deductions which are unexplained and not supported by documentation, which has resulted in plaintiffs receiving incorrect shares of the sale proceeds.

Plaintiffs also allege that defendant forged plaintiffs’ names on certain escrow documents in order for defendant to receive a larger share of the sale proceeds.

The First Amended Complaint alleges causes of action for breach of contract, breach of fiduciary duty, breach of duty of good faith and fair dealing, fraud and conversion.

Evidently, defendant has served a cross-complaint on plaintiffs, but has not yet filed it with the court.

ANALYSIS:

Procedural

Meet and Confer

Under CCP § 2030.300, a where a party brings a motion to compel a further response to interrogatories such a motion “shall be accompanied by a meet and confer declaration under Section 2016.040.”

Section 2016.040 requires:

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

The meet and confer declaration here is not ideal, as it does not show that plaintiff made an attempt at an informal resolution of each issue presented by the motion. Instead, the declaration indicates that defendant would not meet and confer, but kept disconnecting from phone calls, despite plaintiff having a mandarin translator available on one call. [Yu Decl., para. 7]. It is not clear why plaintiff’s counsel did not mail a letter addressing each issue raised by the motion, in order to satisfy the statutory meet and confer obligation. The motion could be denied for failure of plaintiff to show an appropriate meet and confer prior to filing the motion, but the court elects not to do so. However, there is no timely opposition, so no objection exists on this ground. The court will consider the motion.

Substantive

Under CCP sec. 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action…if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The section specifically provides that “discovery may relate to the claim or defense of the party seeking discovery or of any other party,” and that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any…tangible thing.”

CCP sec. 2030.300(a) provides that if the party propounding interrogatories deems that an objection is without merit or too general or that “an answer to a particular interrogatory is evasive or incomplete”, “the propounding party may move for an order compelling a further response…”

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. The granting or denial of a motion to compel is in the discretion of the trial court. Id. A court should generally consider the following factors:

The relationship of the information sought to the issues framed in the pleadings;

The likelihood that disclosure will be of practical benefit to the party seeking discovery;

The burden or expense likely to be encountered by the responding party in furnishing the information sought.

Columbia Broadcast System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.

Form Interrogatory No. 15.1

Form Interrogatory No. 15.1 requests that the party identify each material allegation and affirmative defense in its pleading and for each state the facts, witnesses, and documents supporting the allegation or defense.

The response is:

“I don’t know.”

The motion argues that this is a simple contention interrogatory, that plaintiff is entitled to a complete response, and that here it would involve only information concerning the denial of material allegations of the complaint and eight affirmative defenses, some of which may be set at rest by discovery of this nature.

This is a straightforward contention interrogatory. As noted above, “discovery may relate to the claim or defense of the party seeking discovery or of any other party…” CCP section. 2017.010.

CCP sec. 2030 .010(a) specifically permits the propounding of contention interrogatories:

“An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or a contention that relates to fact or the application of law to facts, or would be based on information obtained or legal theories developed in anticipation of litigation.”

This is an approved Judicial Council form interrogatory, which has never been subject to any cited case law interpretation limiting its use. This is not a particularly complex case, and the answer asserts only fairly straightforward affirmative defenses. The action is no different from any other civil litigation in which the parties are expected to permit discovery of the information sought here, in effect, the fact, witnesses and documents supporting defendant’s respective claims and defenses. The motion is granted and a further complete response is ordered served.

Form Interrogatories Nos. 50.1-50.6

These interrogatories seek information concerning each agreement alleged in the pleading, including facts concerning its nature, breach, performance or excuse for nonperformance, termination, enforceability and ambiguity.

The response to each interrogatory is the same:

“I and three individuals had an oral contract for the ownership and operation of an apartment house at 949 N. Vine Ave., Ontario, CA 91762. The property was sold and the profits distributed. There was a mistake in the calculation of the amounts due to the partners. My share was $46,252.22 less than I would have received with a correct calculation of shares of profits. I am now seeking reimbursement of the $46,252.22 that was distributed to the other three partners of the venture. As they have refused to correct the mistake, I am filed my cross-complaint to obtain a judgment against them for $46,252.22.”

This is clearly incomplete, and refers to a cross-complaint, not the answer, which is the subject of the interrogatory.

Under CCP § 2030.220:

“(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

The motion is granted, and further full and complete responses ordered served.

Sanctions

Moving party seeks sanctions.

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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.”

Under CCP § 2023.010, misuse of the discovery process includes “(f) making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

Under CRC Rule 3.1348(a): “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

In this case, defendant has made evasive and incomplete responses, and made the motion necessary. There is no opposition to the motion, so no substantial justification or injustice has been established. Sanctions should be awarded. The sanctions sought are $1,985. 1.5 hours at $350 per hour is requested to prepare a reply, which is not required, given the untimely opposition, therefore, the court is deducting the 1.5 hours, given that no timely opposition has been filed. Therefore, the sanctions are reduced to $1,400.00 for attorney time.