Case Number: KC066542    Hearing Date: August 13, 2014    Dept: O

Mingfeng (USA) Packaging, Inc. v. Xiong (KC066542)

1. Plaintiff Mingfeng (USA) Packaging, Inc.’s MOTION TO ENFORCE SUBPOENA OVER OBJECTIONS

Respondent: Defendant Xiong

2. Plaintiff Mingfeng (USA) Packaging, Inc.’s MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES PROPOUNDED ON DEFENDANT XIONG

Respondent: Defendant Xiong

TENTATIVE RULING

1. Motion to Enforce Subpoena

Plaintiff Mingfeng (USA) Packaging, Inc.’s motion to enforce subpoena over objections is DENIED. No sanctions.

Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows: (1) To the consumer PERSONALLY, or AT HIS OR HER LAST KNOWN ADDRESS… or, if he or she is a party, to his or her attorney of record… (2) NOT LESS THAN 10 DAYS PRIOR TO THE DATE FOR PRODUCTION specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail. (3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail. (CCP 1985.3(b).) Upon good cause shown and provided that the rights of witnesses and consumers are preserved, a subpoenaing party shall be entitled to obtain an order shortening the time for service of a subpoena duces tecum or waiving the requirements of subdivision (b) where due diligence by the subpoenaing party has been shown. (CCP 1985.3(h).)

At the time of service of the subpoenas, Aohan and Xiaofeng were not parties to the action. Therefore, Plaintiff was required to comply with the “consumer notice” requirements of CCP 1985.3. While Plaintiff attempted to serve Aohan and Xiaofeng, service was defective. These individuals are citizens of China, and the attempted service through Defendant Frank Xiong is improper. Xiong is not authorized to accept service on their behalf.

Plaintiff contends the court should waive the requirements of CCP 1985.3(b) because Xiong opposed the motion on the consumers’ behalf, and therefore, their rights have been preserved. However, CCP 1985.3(h) also requires “due diligence,” and Plaintiff has not established due diligence in its attempt to serve the consumers in China.

Motion is DENIED.

Sanctions:
The court critically notes that Defendant Xiong failed to respond to Plaintiff’s attempt to meet and confer on the issues. Therefore, Xiong’s request for sanctions is denied. Now that Aohan and Xiaofeng are named Defendants, Plaintiff may re-serve its subpoenas upon Aohan and Xiaofeng as party litigants.

2. Motion to Compel Further Responses to Special Interrogatories

Plaintiff Mingfeng (USA) Packaging, Inc.’s motion to compel further responses to special interrogatories propounded on defendant Xiong is GRANTED as to Nos. 14, 17, 20, 23, and 34, and DENIED as to Nos. 4, 7, and 26. Defendant is ordered to serve supplemental responses within 10 days. No sanctions.

TIMELINESS:
Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. (CCP 2030.300(c).)

Responses to Special Interrogatories were mail-served on 4/11/14. During the meet and confer process, Defendant stated that it will supplement responses to some, but not all, interrogatories. Plaintiff granted Defendant an extension to supplement his responses and the parties agreed to a reciprocal extension to file the instant motion. At the same time, Plaintiff requested an extension to file the instant motion as to the other interrogatories that Defendant declined to supplement. The court finds Plaintiff’s request is reasonable. Rather than “splitting” one set of interrogatories into piecemeal motions to compel further responses, judicial efficiency favors resolution of this discovery dispute in one motion. The court finds that Defendant’s meet and confer letters were evasive and confusing as to the requested extension. The extension as to the other interrogatories should have applied (and could have been construed to apply) to the instant interrogatories because it pertains to the same set of interrogatories. The court finds the motion is timely.

MERITS:
CCP 2030.300 allows a party to file a motion compelling further answers to interrogatories if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP 2030.300(b).)

The court finds the parties have adequately met and conferred.
Each answer in the response must be “AS COMPLETE AND STRAIGHTFORWARD AS THE INFORMATION REASONABLY AVAILABLE TO THE RESPONDING PARTY PERMITS. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (CCP 2030.220(a) and (b).) 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. (CCP 2030.220(c).)

“If a question does require the responding party to make reference to a pleading or document, the pleading or document should be identified and summarized so the answer is fully responsive to the question.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784.)

Special Interrogatory Nos. 4, 7, 14, 17, 20, 23, 26, and 34 cross-reference Responses to No. 1. This cross-reference is improper per Deyo v. Kilbourne (1978) 84 Cal.App.3d 771. However, in the interest of judicial efficiency, this court has cross-referenced that response, and finds that the responses to Nos. 4, 7, and 26 are responsive. The court finds responses to Nos. 14, 17, 20, 23, and 34 are evasive and non-responsive. Responses such as “Money owed to me by Plaintiff” or “I was repaying money I owed him” are non-responsive and lacks the detail requested in the interrogatories. Further, Response to Interrogatory No. 1 does not answer Interrogatory No. 34, which asks why there was a separate set of invoices sent to U.S. Mint that had a lower cost price. The court finds the interrogatory is not vague or ambiguous.

Accordingly, the motion is GRANTED as to Nos. 14, 17, 20, 23, and 34, and DENIED as to Nos. 4, 7, and 26. No sanctions to either party.