Lawzilla Additional Information:
Per the Santa Clara court records defendant is represented by attorney Breck Milde of Hopkins & Carley who is involved in the sanctions being ordered by the court.

Case Name: Bic D. Pho, et al. v. Eastwest Trading Co, LLC, et al.

Case No.: 16CV300343

Motion to Compel Further Response and Production by Vy Nguyen to Second Set of Requests for Production, and for Issuance of Monetary Sanctions

Factual and Procedural Background

On January 4, 2016, defendant EastWest Trading Co, LLC, dba EastWest Trading, LLC (“EastWest”), by its then authorized agent and member, Alan Huynh, entered into a written partnership agreement with plaintiff Bic D. Pho (“Pho”) to form a partnership, defendant Properties & Beyond Partnership (“PBP”). (Complaint, ¶¶4 and 12.) Pursuant to the partnership agreement, plaintiff Pho provided construction management and other services including evaluation, acquisition, permitting, renovation, and construction of real properties commonly known as:

(1) 909 Reed Avenue, Sunnyvale, CA 94086
(2) 1062 Summerview, San Jose, CA 95132
(3) 4186 Hamilton Park Drive, San Jose, CA 95130
(4) 324 Willow Street, San Jose, CA 95110
(5) 354 Sand Hill Road, Scotts Valley, CA 95066 (Complaint, ¶14.)

Plaintiff Pho advanced costs for the development and construction of these real properties for the benefit of the PBP. (Complaint, ¶15.) Plaintiff Pho gave receipts and spreadsheets for costs he advanced to defendant Vy Le Nguyen (“Nguyen”), a member of defendant EastWest. (Complaint, ¶¶3 and 16.) Defendant Nguyen maintained control of all financial accounts of or for PBP and EastWest, as well as for defendant Pro Legal Services Corporation (“PLSC”). (Complaint, ¶17.) Defendants Nguyen and Jiang Kuang (“Kuang”), another member of EastWest, purchased properties in their own name and in the name of EastWest rather than in the name of PBP in contravention of the partnership agreement. (Complaint, ¶18.) Plaintiff Pho was not paid for his services as an employee. (Complaint, ¶19.) Plaintiff Pho was not paid for the vast majority of the costs he advanced. (Complaint, ¶20.) Plaintiff Pho was not provided access to PBP partnership accounts, records and accountings. (Complaint, ¶21.)

On June 29, 2016, defendant Nguyen emailed plaintiff Pho terminating Pho’s employment. (Complaint, ¶22.) In July 2016, defendant Nguyen issued to plaintiff iDragon, LLC four checks purportedly representing to Pho that they were partial payments/ reimbursement of costs and expenses. (Complaint, ¶23.) On July 8, 2016, defendant Nguyen stopped payment on each of the checks, knowing plaintiff Pho traveled out of state and needed the payments for travel and other purposes. (Complaint, ¶¶24 – 25.)

On September 26, 2016, plaintiff Pho filed a complaint against defendants EastWest, PBP, Nguyen, Kuang, PLSC, and Properties & Beyond Corporation asserting causes of action for:

(1) Breach of Employment Contract
(2) Termination of Employment in Violation of Public Policy
(3) Wages and Hours Violations
(4) Bad Check Action
(5) Accounting

On December 6, 2016, defendants filed an answer to plaintiff Pho’s complaint.

Discovery Dispute

On December 7, 2017, plaintiff Pho served, by mail, a second set of Request for Production of Documents (“RPD”) on defendant Nguyen. Based on the date of mail service, defendant Nguyen’s responses were due to be served by January 11, 2018.

[According to defendant Nguyen’s counsel, plaintiff Pho served, by hand delivery, the RPD at issue on January 5, 2018 together with a separate RPD directed to defendant Jiang Kuang. Since neither party provided an actual copy of the RPD at issue or a proof of service thereof, the court is inclined to believe plaintiff Pho’s counsel’s representation that the RPD at issue was served, by mail, on December 7, 2017 and not served, by hand delivery, on January 5, 2018. The December 7, 2017 mail service date is more credible and consistent with plaintiff’s counsel’s email, infra.]

Having received no response by January 11, 2018, plaintiff’s counsel emailed defendant Nguyen’s counsel on January 15, 2018 advising defendant Nguyen that objections had been waived and inquiring if any response will be provided.

On January 18, 2018, defendant Nguyen’s counsel responded stating, “My staff inadvertently failed to calendar the deadline for responding to the second set of RFPs directed to Vy Le Nguyen, so that response will be served this week.”

On January 19, 2018, defendant Nguyen served plaintiff with a response to the RPD, set two.

On January 22, 2018, plaintiff’s counsel received “limited bank statements from one Wells Fargo account at the recommenced deposition of Jiang Kuang.”

Unsatisfied with defendant Nguyen’s response to the RPD, set two, on January 27, 2018, plaintiff’s counsel sent a letter to defendant Nguyen’s counsel to meet and confer asking for amended responses and production of responsive documents.

On February 2, 2018, plaintiff’s counsel emailed defendant Nguyen’s counsel again asking for production of responsive documents. Defendant Nguyen’s counsel responded stating, “I will get you all of the documents that my clients have provided by next week.”

On February 16, 2018, plaintiff’s counsel received “limited time period checks from one Wells Fargo account – it appears, the account number being blacked out – and some lien and escrow documents at the commencement of a deposition of Vy Nguyen.”

Defendant Nguyen did not provide any further or amended response to the RPD at issue.

On March 5, 2018, plaintiff Pho filed the motion now before the court, a motion to compel defendant Nguyen’s further response to RPD, set two, and production of documents responsive thereto. In addition, plaintiff Pho requests monetary sanctions.

Discussion

I. Plaintiff Pho’s motion to compel defendant Nguyen’s further responses and production is GRANTED.

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:

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

(Code Civ. Proc., §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.” (Code Civ. Proc., §2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) 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.)

In reviewing the separate statement submitted by plaintiff Pho, the court finds plaintiff Pho has demonstrated good cause justifying the discovery sought by the inspection demand. In opposition, defendant Nguyen contends plaintiff Pho has not demonstrated good cause and argues the discovery being sought is “a far reaching and out of control fishing expedition … beyond the realm of any reasonable documentary discovery.” The court reminds the parties,

In the absence of contrary court order, a civil litigant’s right to discovery is broad. “[A]ny 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.” (Code Civ. Proc., § 2017.010; see Davies v. Superior Court (1984) 36 Cal.3d 291, 301, 204 Cal.Rptr. 154, 682 P.2d 349 [“discovery is not limited to admissible evidence”].) [Footnote.]

(Williams v. Superior Court (2017) 3 Cal.5th 531, 541.)

Before addressing any objections, defendant Nguyen begins by asking the court to relieve him from the waiver of objections. Code of Civil Procedure section 2031.300, subdivision (a) states:

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:
(a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:
(1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280.
(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(Emphasis added.)

The statutory language above requires any relief from waiver to be sought by motion. Defendant Nguyen’s request for relief raised in opposition does not satisfy the statutory requirement. Accordingly, defendant Nguyen’s request for relief from waiver is DENIED.

As indicated above, a demanding party may seek an order compelling a further response if “an objection in the response is without merit.” Since defendant Nguyen’s responses to the RPD at issue here each contain an objection and defendant Nguyen waived any objections, the objections asserted in defendant Nguyen’s responses to the RPD at issue are without merit. Plaintiff Pho is entitled to further amended responses, without objection.

Defendant Nguyen’s responses are also not Code-compliant. For example, defendant Nguyen’s response to RPD, number 37 states, “Responding Party is unable to comply with this request because the documents falling within the demanded category have never existed.”

“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.)

Defendant Nguyen’s response does not “affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.” For that reason, a further amended response is warranted.

In response to some of the RPDs at issue, defendant Nguyen asserted an objection based on the right to privacy. For example, defendant Nguyen’s response to RPD, number 41 states, in relevant part, “Further objection is made on the grounds that his request seeks production of documents protected by the right to privacy under Article I, section 1 of the Constitution of the State of California.” Defendant Nguyen does not justify the assertion of a privacy objection. For that reason, a further amended response is warranted.

As to some of the RPDs at issue, plaintiff Pho contends defendant Nguyen’s response representing an inability to comply is evasive. For example, with regard to RPD, number 37, plaintiff Pho contends defendant Nguyen’s response indicating documents never existed is false. RPD, number 37 asks for “All lending agreements between you and Jiang Kuang.” Plaintiff Pho cites deposition testimony from co-defendant Kuang, but a review of the deposition testimony does not demonstrably prove the falsity of defendant Nguyen’s response.

Accordingly, plaintiff Pho’s motion to compel defendant Nguyen’s further responses to RPD, set two, numbers 30 – 35, 37, 39, and 41 – 59 is GRANTED. Defendant Nguyen shall provide a Code-compliant further amended response, without objection, and produce documents responsive to RPD, numbers 30 – 35, 37, 39, and 41 – 59 within 20 days from entry of order.

II. Requests for sanctions.

Code of Civil Procedure section 2031.310, subdivision (h) mandates an award of monetary sanctions “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.”

Plaintiff’s counsel declares he and an assistant spent five hours and two hours, respectively, at the rates of $300 and $75 per hour, respectively, to prepare the papers in support of this discovery motion and incurred $60 to file this motion. In reply, plaintiff’s counsel declares he spent an additional three hours to review the defendant’s opposition and prepare a reply.

In opposition, defendant Nguyen contends sanctions should not be awarded against him because his conduct was reasonable and substantially justified. In addition, defendant Nguyen contends plaintiff Pho should be sanctioned because he failed to reasonably meet and confer in good faith and made opposing this motion more burdensome by refusing to provide an electronic version of his separate statement.

Plaintiff substantially prevailed on this motion and is entitled to an award of sanctions. Plaintiff adequately met and conferred prior to the filing of this motion. While the court is aware of a rule requiring a party to share an electronic version of a separate statement on a motion for summary judgment/ adjudication, the court is not aware of any similar rule with regard to discovery motions. (Cf. Cal. Rules of Court, rule 3.1350, subd. (i).) The court would encourage parties to cooperate in this regard, but plaintiff’s counsel failure/refusal to do so does not amount to sanctionable conduct. Plaintiff Pho’s request for monetary sanctions is GRANTED. Defendant Nguyen shall pay $2,710 to plaintiff Pho within 20 calendar days from entry of this order.

Defendant Nguyen’s request for monetary sanction is DENIED.