Case Name: Jiahui Wang, et al. v. Hanping Hou
Case No.: 18-CV-328943

Currently before the Court are the following matters: (1) the motion by defendant Hanping Hou (“Defendant”) to join non-party Yi Qin as a party to the action or, alternatively, to dismiss the action; and (2) the motion by Defendant to compel plaintiffs Jiahui Wang and Wei Qin (collectively, “Plaintiffs”) to provide further responses to form interrogatories, set one (“FI”), special interrogatories, set one (“SI”), and requests for production of documents, set one (“RPD”).

Factual and Procedural Background

This is an action for fraud, breach of contract, and common counts. Plaintiffs allegedly loaned money to Defendant, a family friend, who thereafter failed to pay them back. (Complaint, ¶¶ 12-14.)

Specifically, in July 2016, Defendant told Yi Qin that she urgently needed money and “would repay [money loaned to her] in or around one year.” (Complaint, ¶¶ 15 & 19.) Yi Qin reached out to his relatives regarding Defendant’s request. (Id. at ¶ 15.) Wei Qin then agreed to loan Defendant money, and Yi Qin informed Defendant of the same. (Id. ¶ 16.) Defendant sent her bank account information to Yi Qin, who forwarded it to Wei Qin. (Ibid.) On July 15, 2016, Wei Qin wired Defendant approximately $650,522. (Id. at ¶¶ 17-19.) Despite several demands for payment, Defendant refused to repay the loan. (Id. at ¶¶ 20, 28, 32, 39, & 44.)

In January 2018, Defendant told Yi Qin that she wanted to “borrow money for short term in or around a month.” (Complaint, ¶ 21.) Yi Qin told his relatives that Defendant wanted to borrow approximately $317,460. (Ibid.) Jiahui Wang agreed to loan Defendant money, and Yi Qin informed Defendant of the same. (Ibid.) Defendant sent her bank account information to Yi Qin, who forwarded it to Jiahui Wang. (Ibid.) On January 3, 2018, Jiahui Wang wired Defendant approximately $317,460. (Id. at ¶¶ 22-23.) Despite several demands for payment, Defendant refused to repay the loan. (Id. at ¶¶ 28, 32, 39, & 44.)

Based on the foregoing allegations, Plaintiffs filed a complaint against Defendant, alleging causes of action for: (1) fraud; (2) breach of contract; (3) money had and received; (4) restitution; and (5) conversion.

Subsequently, Defendant demurred to the complaint on the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).) According to the minute order dated November 13, 2018, the court (Hon. Theodore C. Zayner) adopted its tentative ruling, which overruled Defendant’s demurrer in its entirety.

Thereafter, Defendant filed an answer to the complaint on December 5, 2018, generally denying the allegations of the complaint and alleging various affirmative defenses. On December 12, 2018, Defendant filed an amended answer, in which she admitted and denied various allegations of the complaint and alleged various affirmative defenses.

Discovery Dispute

In December 2018, Defendant served Plaintiffs with the FI, SI, and RPD. Plaintiffs requested an extension of time to respond to the discovery, which Defendant granted. Plaintiffs served Defendant with their responses to the FI, SI, and RPD on January 31, 3019.

Subsequently, the parties’ counsel meet and conferred over several days regarding the sufficiency of Plaintiffs’ responses to the discovery. However, the parties were unable to informally resolve the discovery dispute.

On March 8, 2019, Defendant filed the instant motion to join Yi Qin as a party to the action or, alternatively, dismiss the action. Defendant filed the instant motion to compel Plaintiffs to provide further responses to the FI, SI, and RPD on March 18, 2019. Plaintiffs filed papers in opposition to both motions on May 22, 2019. On May 28, 2019, Defendant filed reply papers in support of her motions.

Discussion

I. Motion to Join Yi Qin as a Party or, Alternatively, to Dismiss the Action

Defendant moves to join Yi Qin as a party to the action under Code of Civil Procedure sections 378-379 and 389, subdivision (a) or, alternatively, dismiss the action under Code of Civil Procedure section 389, subdivision (b).

A. Judicial Notice

In connection with their motion to join Yi Qin as a party to the action or, alternatively, dismiss the action, Plaintiffs ask the Court to take judicial notice of the tentative ruling on Defendant’s demurrer to the complaint.

The tentative ruling is not a proper subject of judicial notice because Plaintiffs do not establish that it is relevant to a material issue before the Court. (See Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18 [“ ‘There is … a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter to be judicially noticed must be relevant to a material issue.’ [Citations.]”].)

Accordingly, Plaintiffs’ request for judicial notice is DENIED.
On its own motion, the Court takes judicial notice of Defendant’s demurrer to the complaint, answer, and amended answer. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records]; see also People v. Woodell (1998) 17 Cal.4th 969B, 455 [“Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached-in the documents such as orders, statements of decision, and judgments-but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.’ ”]; Smith v. Selma Community Hosp. (2010) 188 Cal.App.4th 1, 45 [a court may take judicial notice of matters on its own motion].)

B. Legal Standard

Code of Civil Procedure sections 378 and 379 govern permissive joinder of plaintiffs and defendants, i.e., the parties the plaintiff may join, if he or she chooses. (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) ¶¶ 2:150 & 2:205.) Because joinder is merely permissive under these sections, a defendant cannot compel a plaintiff to join others with similar claims as co-plaintiffs in a single action. (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) ¶ 2:206.) Instead, a defendant’s remedy when faced with multiple suits by plaintiffs with similar claims is a motion to consolidate (see Code Civ. Proc., § 1048, subd. (a) or, if the actions are pending in different courts, a motion to coordinate (see Code Civ. Proc., § 404). (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) ¶ 2:206.)
Code of Civil Procedure section 389 governs compulsory joinder of a party. (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) ¶¶ 2:150-2:151.) A plaintiff must join as parties to the action all persons whose interests are so directly involved that the court cannot render a fair adjudication in their absence. (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) ¶¶ 2:151 & 2:156.) Specifically, Code of Civil Procedure section 389, subdivision (a) states, “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.”

If any such person is allied in interest with plaintiff, but refuses to join as co-plaintiff, he or she may be sued as a defendant (or “involuntary plaintiff”) and the complaint must state the reasons why such person was so joined. (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) ¶ 2:158, citing Code Civ. Proc., § 382.)

If such a person cannot be joined (because he or she is not subject to service of process or the statute of limitations has run, etc.), the court must decide whether the action should proceed without that person or, instead, be dismissed. (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) ¶¶ 2:160 & 2:193.) Specifically, Code of Civil Procedure section 389, subdivision (b) provides, “If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.”

Notably, nonjoinder of a party must be raised by a defendant at the outset of the action or defendant waives the defect. (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) ¶¶ 2:185-2:187, 2:190, 2:196, 6:475; Code Civ. Proc., §§ 430.10, subd. (d) & 430.80, subd. (a); Irer v. Gawn (1929) 99 Cal.App. 17, 31 [“An objection on the ground of nonjoinder of parties plaintiff or defendant must be presented by demurrer or answer in the manner provided by statute, or it will be deemed to have been waived.”]; Security-First Nat. Bk. V. Cooper (1944) 62 Cal.App.2d 653, 664; Wolff v. Hoaglund (1970) 11 Cal.App.3d 227, 232.) In other words, if a defendant believes that some person with a material interest in the subject of the action has not been joined, the defendant may object either by special demurrer or by affirmative defense in the answer. (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) ¶¶ 2:185-2:187, 2:190, 2:196, 6:475; Code Civ. Proc., §§ 430.10, subd. (d) & 430.80.) Only if the objection has been raised by demurrer or as a defense in the answer may the defendant move to compel joinder and/or dismiss the action. (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) ¶¶ 2:185-2:187, 2:188-2:190, 2:196, 6:475; Code Civ. Proc., §§ 430.10, subd. (d) & 430.80.)
C. Merits of Motion

Defendant argues that the Court should order Yi Qin be made a party to this action under Code of Civil Procedure sections 378-379 and 389, subdivision (a) because it is her position that she obtained the loans at issue from Yi Qin, not Plaintiffs. Defendant contends that, therefore, Yi Qin “shares common question of law and fact with the parties,” “this court cannot give complete relief unless Yi Qin is joined,” “any judgment might prejudice the rights of Yi Qin (as the legal owner of the loans),” and she “might be exposed to multiple liability if Yi Qin is not joined.” (Mem. Ps. & As., p. 1:6-20.)

In opposition, Plaintiffs argue that the Yi Qin should not be joined as a party to this action. Initially, Plaintiffs contend that much of the evidence offered in support of Defendant’s motion is inadmissible. Plaintiffs also point out that Yi Qin has not claimed any interest in the subject loans. Plaintiffs assert that Defendant will not suffer any prejudice if Yi Qin is not joined as a party to this action.

As a threshold matter, though not addressed by the parties, the Court notes that Defendant’s objection to the nonjoinder of Yi Qin is waived because Defendant did not raise the objection in her demurrer, answer, or amended answer. (Code Civ. Proc., §§ 430.10, subd. (d) & 430.80, subd. (a).) Consequently, Defendant cannot now move to compel joinder or dismiss the action.

Even if Defendant had not waived her objection to the nonjoinder of Yi Qin, her motion would still fail. Because joinder is merely permissive under Code of Civil Procedure sections 378 and 379, Defendant cannot compel Plaintiffs to join Yi Qin under those sections. Furthermore, Defendant cannot compel Plaintiffs to join Yi Qin under Code of Civil Procedure section 389, subdivision (a) because there is no evidence in the record that Yi Qin claims any interest in the subject loans and complete relief can be accorded among Plaintiffs and Defendant in Yi Qin’s absence. (See Code Civ. Proc., § 389, subd. (a).) Finally, Defendant cannot move to dismiss the action under Code of Civil Procedure section 389, subdivision (b) because Yi Qin is not a person as described in paragraph (1) or (2) of Code of Civil Procedure section 389, subdivision (a). (See Code Civ. Proc., § 389, subd. (b).)

Accordingly, Defendant’s motion to join Yi Qin as a party to the action or, alternatively, dismiss the action is DENIED.

II. Motion to Compel Further Responses to the FI, SI, and RPD

Defendant moves to compel Plaintiffs to provide further responses to FI No. 2.6(b), SI Nos. 1-2 and 4-5, and RPD Nos. 5-6 under Code of Civil Procedure sections 2030.300 and 2031.310.

A. Effect of Service of Amended Responses

As an initial matter, Plaintiffs served Defendant with amended responses to the FI and SI on May 22, 2019, more than two months after the instant motion was filed. (See Ryan Reply Dec., Ex. 3; see also Wang Dec., ¶ 9.) Plaintiffs assert that the motion is, therefore, moot as to FI No. 2.6(b) and SI Nos. 1-2. Plaintiffs contend that the motion should still proceed as to SI Nos. 4-5.

In her reply papers, Defendant advises the Court that she is satisfied with Plaintiffs’ amended response to FI No. 2.6(b). Defendant contends that Plaintiffs’ amended responses to SI Nos. 1-2 and 4-5 are still deficient.

When amended discovery responses are served after a motion to compel is filed, the Court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) Through this discretion, the Court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Id., at p. 409.)

Here, Defendant provided the Court with a copy of Plaintiffs’ amended responses to the FI and SI. In its amended responses, Plaintiffs substantially changed their responses to FI No. 2.6(b) and SI Nos. 1-2. Plaintiffs’ amended responses to SI Nos. 4-5 are identical to Plaintiffs’ original responses to those requests.

As Defendant states that she is satisfied with Plaintiffs’ amended response to FI No. 2.6(b), the Court in its discretion deems the instant motion to compel a further response to FI No. 2.6(b) to be MOOT.

Furthermore, the Court is not prepared to address the sufficiency of Plaintiffs’ amended responses to SI Nos. 1-2 given the substantial changes made to those responses and the fact that the parties have not yet met and conferred regarding any purported deficiencies in the amended responses. Thus, the Court in its discretion deems the instant motion to compel further responses to SI Nos. 1-2 to be MOOT.

Finally, the Court, in its discretion, will examine Plaintiffs’ amended responses to SI Nos. 4-5 determine if the amended responses are code-compliant because the amended responses are identical to Plaintiffs’ original responses to SI Nos. 4-5.

B. Remaining Requests at Issue

The remaining requests at issue are SI Nos. 4-5 and RPD Nos. 5-6.

1. Legal Standard

If a party demanding a response to an interrogatory deems that an answer to a particular interrogatory is evasive or incomplete, an exercise of the option to produce documents is unwarranted or inadequate, or an objection to an interrogatory is without merit or too general, that party may move for an order compelling a further response. (Code Civ. Proc., § 2030.300, subd. (a)(1)–(3).) If a timely motion to compel a further response to an interrogatory has been filed, the burden is on the responding party to justify any objection to the discovery request. (Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255.)

If a party demanding a response to a request for production of documents deems that a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general, that party may move for an order compelling a further response. (See Code Civ. Proc., § 2031.310, subd. (a).) On a motion to compel a further response to a request for production of documents, it is the moving party’s burden to demonstrate good cause for the discovery sought. (Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) “Good cause” requires a showing or 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. Super. Ct. (1997) 53 Cal.4th 1113, 1117.) Once good cause has been shown, the burden shifts to the responding party to justify any objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

2. Analysis

SI Nos. 4-5 ask Plaintiffs to describe in detail “the source of income [relating] to” the money that they allegedly lent to Defendant. RPD Nos. 5-6 ask Plaintiffs to produce all documents relating to the source of income for the money they allegedly loaned to Defendant.

In their responses, Plaintiffs objected to the requests on the grounds of relevance, vagueness, ambiguity, overbreadth, compound, unduly burdensome, and privacy. Without waiving and subject to those objections, Plaintiffs further stated that “no such information and/or documents are currently available and/or to be located to be produced at this time upon reasonable and diligent inquiries and search by [Plaintiffs].”

As an initial matter, there is good cause for the discovery sought by the RPD. Defendant alleges that Yi Qin owned the funds at issue and she borrowed the money from Yi Qin, not Plaintiffs. In her moving papers, Defendant explains that her allegation is based on the fact that Yi Qin often deposits his personal funds in his relatives’ bank accounts in China for various reasons and Yi Qin never told her that the funds loaned to her were from a third party. The RPD seek documents regarding the source of the money that Plaintiffs allegedly loaned to Defendant. Such documents will help Defendant evaluate the merits of her defense and prepare for trial.

With respect to Plaintiffs’ numerous objections to the discovery requests, except as expressly discussed below, Plaintiffs do not defend their objections. Thus, the Court finds that the undefended objections are without merit and are overruled. (See Coy v. Super. Ct. (Wolcher, et al.) (1962) 58 Cal.2d 210, 220-221.)

Plaintiffs first attempt to justify their objections to the SI and RPD on the ground of relevance. As explained above, Defendant alleges that Yi Qin owned the funds at issue and she borrowed the money from Yi Qin, not Plaintiffs. In her moving papers, Defendant explains that her allegation is based on the fact that Yi Qin often deposits his personal funds in his relatives’ bank accounts in China for various reasons and Yi Qin never told her that the funds loaned to her were from a third party. The SI and RPD seek information and documents regarding the source of the money that Plaintiffs allegedly loaned to Defendant. Such information and documents will help Defendant evaluate the merits of her defense and prepare for trial. Thus, the discovery sought by the requests is directly relevant to Defendant’s defense. Consequently, Plaintiffs’ relevance objections are overruled.

Plaintiffs also attempt to defend their objections to the requests on the ground of vagueness and ambiguity. A vagueness and ambiguity objection will only be sustained if the request is unintelligible. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [“[W]here the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.”].) Here, Plaintiffs do not assert that the requests, as drafted, are unintelligible. Moreover, the requests adequately define the term “YOU” and the terms “income” and “paid” are readily understandable by reference to their plain meaning. Thus, Plaintiffs’ objections on the grounds of vagueness and ambiguity are overruled.

Next, Plaintiffs attempt to justify their objections on the ground of undue burden, arguing that they are seniors retired in China and may not be able to obtain their own financial records. Plaintiffs’ undue burden objection lacks merit because they do not present any evidence regarding the quantum of work that would be required for them substantively respond to the request. (West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal. 2d 407, 417 (West) [an “objection based upon burden must be sustained by evidence showing the quantum of work required”].) Thus, their undue burden objections are overruled.

Lastly, Plaintiffs attempt to defend their objections to the requests on the ground of privacy. When a person objects to a discovery request on the ground of privacy, he or she must demonstrate disclosure of the information sought would invade a legally protected privacy interest. (See Alch v. Super. Ct. (2008) 165 Cal.App.4th 1412, 1423.) If the discovery sought invades a cognizable privacy interest, the proponent of the discovery must demonstrate the information sought is directly relevant to a claim or defense. (Id. at pp. 1426-1427 & 1433.) If the information sought is directly relevant, a court must then balance the right to privacy against the countervailing right to discover relevant information to litigate the case. (Id. at pp. 1426-1427.)

Plaintiffs assert that they have a right to privacy in their financial records. This assertion is well-taken. (See Moskowitz v. Super. Ct. (2017) 137 Cal.App.3d 313, 315 [“Personal financial information comes within the zone of privacy protected by article I, section 1 of the California Constitution.”], disapproved of on other grounds by Williams v. Super. Ct. (2017) 3 Cal.5th 531.)

Consequently, Defendant must demonstrate that the information and documents sought are directly relevant to a claim or defense. (See Harris v. Super. Ct. (1992) 3 Cal.App.4th 661, 665.) For the reasons already explained, Defendant has adequately shown that the discovery sought is directly relevant to his defense of this action.

Because the sought-after discovery is directly relevant, the Court must balance Plaintiffs’ right to privacy against Defendant’s countervailing right to discover the relevant information and documents. “Privacy concerns are not absolute; they must be balanced against other important interests.” (Hill v. Nat’l Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37.) Such interests include the public interest in the ascertainment of truth in all legal proceedings. (Alch, supra, 165 Cal.App.4th at 1437.) A court may also consider “[p]rotective measures, safeguards and other alternatives may minimize the privacy intrusion.” (Pioneer Elecs. (USA), Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 371.) “For example, if the intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged.” (Ibid.)

On balance, the Court finds that Defendant’s right to the sought-after discovery outweighs Plaintiffs’ right to privacy given that the discovery can be adequately protected by means of a protective order. Therefore, Plaintiffs’ privacy objection is overruled.

Plaintiffs’ substantive responses to the requests are also deficient. Plaintiffs state that responsive information and documents are not “currently available” and/or cannot be “located to be produced.” However, with respect to the SI, Plaintiffs must provide the information sought to be discovered (see Code Civ. Proc., § 2030.210) or, if they do not have personal knowledge sufficient to respond fully to the interrogatories, Plaintiffs must so state, but first 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 Defendant (see Code Civ. Proc., § 2030.220). Regarding the RPD, if Plaintiffs are unable to comply with the requests, they must affirm that a diligent search and a reasonable inquiry was made in an effort to comply with that demand; 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 their possession, custody, or control; and set forth the name and address of any natural person or organization known or believed by them to have possession, custody, or control of that item or category of item. (See Code Civ. Proc., § 2031.230.)

3. Conclusion

Accordingly, Defendant’s motion to compel Plaintiffs to provide further responses to SI Nos. 4-5 and RPD Nos. 5-6 is GRANTED. Within 30 days of the date of filing of the Order, Plaintiffs shall serve Defendant with verified, code-compliant further responses SI Nos. 4-5 and RPD Nos. 5-6, without objections, and produce documents in accordance with their responses. Production of any responsive documents shall be subject to a protective order, and the parties shall meet and confer on the language of an appropriate protective order.