Case Name: Cheung v. Tse
Case No.: 1-13-CV-252171

This is an action for breach of contract. In early September 2011, plaintiff Levania Yue Juan Cheung (“Cheung” or “Plaintiff”) offered to lend $40,000 to defendant Kent Kin Sun Tse (“Tse” or “Defendant”). (See second amended complaint (“SAC”), ¶ 10.) Defendant accepted Plaintiff’s offer, and on September 14, 2011, Plaintiff tendered the check to Defendant and it was deposited on September 23 2011. (See SAC, ¶¶ 10-11.) Defendant refuses to pay back any amount of the loan. (See SAC, ¶ 16.) On July 13, 2015, Plaintiff filed the SAC, asserting causes of action for: breach of oral contract; money lent; restitution; money had and received; and, breach of implied-in-fact contract.

On May 12, 2014, Tse filed a cross-complaint (“XC”) against Cheung, asserting causes of action for fraud and intentional/negligent misrepresentation. The cross-complaint alleges that the first amended complaint seeking to recover $40,000 is premised on false allegations regarding her expenses and contributions toward family trips, causing Tse to incur substantial damages. (See XC, ¶¶ 27, 38.)

Defendant moves to compel further responses to requests for production of documents numbers 1-26 and to special interrogatories numbers 1-100.

Defendant’s request for judicial notice is GRANTED. (Evid. Code § 452, subd.(d).)

Special interrogatories

On June 15, 2015, counsel for Defendant, Ms. Boyes, sent a meet and confer letter regarding responses to special interrogatories (“SIs”) “[e]xpecting Plaintiff’s responses to all one-hundred special interrogatories and production of documents pursuant to the deposition notice to be provided no later than Monday, June 22, 2015.” On June 19, 2015, Ms. Boyes contacted Plaintiff to inform counsel that she had set the hearing on a motion to compel. Plaintiff’s counsel informed counsel that Ms. Boyes had acted prematurely in setting the hearing date, but Ms. Boyes did not wish to take the motion off calendar and filed her motion on June 22, 2015. Ms. Boyes has not properly met and conferred with regards to the special interrogatories.

Moreover, Defendant’s memorandum is unclear as to why the responses to each of the 100 interrogatories are deficient. Indeed, it appears that most—if not all—of the responses to special interrogatories are substantive in nature.

Defendant’s motion to compel further responses to SIs 1-100 is DENIED.

Requests for production of documents

On May 7, 2015, Plaintiff appeared for deposition and testified to a number of documents that she had but had yet to produce. On May 28, 2015, Ms. Boyes sent counsel for Plaintiff a letter noting that her testimony indicated that she had not performed a diligent search and a reasonable inquiry was not made with regards to prior requests for production of documents (“RPDs”). On June 15, 2015, Ms. Boyes sent the aforementioned letter and then filed the motion to compel on June 22, 2015. As with the motion to compel further responses to the SIs, the meet and confer efforts were lacking. Defendant’s motion compel further responses to the RPDs is DENIED without prejudice to the filing of another motion to compel further responses to RPDs, numbers 1-26 only after the parties have adequately met and conferred as to the RPDs.

Defendant’s request for monetary sanctions

Defendant has requested monetary sanctions in the amount of $2,486 against Plaintiff and her counsel. As Defendant did not prevail on his motions, the request for monetary sanctions is likewise DENIED.

Plaintiff’s request for issue sanctions

Pursuant to Code of Civil Procedure section 2023.030, subdivision (b), “Plaintiff requests the Court impose an issue sanction on Defendant by ordering that it be deemed established herein that Defendant has no facts in support of the affirmative defense of offset.” (Pl.’s opposition to Def.’s motion to compel further responses to SIs and RPDs, p.10:2-4.) According to Plaintiff, Defendant has ignored a court order to pay $11,645.00 in monetary sanctions in an unrelated case. Plaintiff cannot obtain discovery sanctions for discovery abuse in a separate, unrelated case. It may be an abuse of discretion for a trial court to issue a sanction that will preclude the presentation of a defense based on the failure to pay a monetary discovery sanction. (See Newland v. Sup. Ct. (1995) 40 Cal.App.4th 608, 610 [stating that a non-monetary sanction is not justified for the failure to pay a monetary sanction because a sanctions order has the full force and effect of a money judgment and is immediately enforceable through execution].)

Moreover, the contention that an affirmative defense to the action or proceeding is without merit based on the presented evidence is not resolved by an issue sanction. Plaintiff’s request for issue sanctions is DENIED.

The Court will prepare the order.