Case Number: GC050360    Hearing Date: August 01, 2014    Dept: A

Wang v Basba

MOTION FOR RECONSIDERATION
MOTIONS TO COMPEL FURTHER RESPONSES (2)

Calendar: 14
Case No: GC050360
Date: 8/1/14

MP: Defendants, Benju Basba and Rebecca Basba
RP: Plaintiffs, Charles Wang and Anita Wang

RELIEF REQUESTED:
1. Reconsideration of the June 25, 2014 Order granting the Plaintiffs’ application for a Writ of Attachment and denying the Defendants’ motion to quash.
2. Order compelling Plaintiff, Anita Wang, to serve further responses to form interrogatories; order imposing monetary sanctions of $3,910 on Plaintiff.
3. Order compelling Plaintiff, Charles Wang, to serve further responses to form and special interrogatories; order imposing monetary sanctions of $3,910 on Plaintiff.

CHRONOLOGY:
Discovery Served: February 27, 2014
Responses Served: April 7, 2014
Supplemental Responses Served: June 19, 2014

Motions Filed: July 7, 2014 (Timely)

DISCUSSION:
The Plaintiffs claim that the Defendant, Benju Basba, breached an agreement to repay $1,000,000 under a promissory note. Further, the Plaintiffs claim that Defendant, Rebecca Basba, is liable because she was married to Benju Basba at the time of the loan and that Benju Basba made a fraudulent conveyance to Rebecca Basba to avoid paying the debt.

This hearing concerns the Defendants’ motion for reconsideration and the Defendants’ discovery motions.

1. Motion for Reconsideration
The Defendants request that the Court reconsider the June 25, 2014 order granting the Plaintiffs’ application for a writ of attachment. On June 25, 2014, the Court granted the Plaintiffs’ application for a writ of attachment and denied the Defendants’ motion to quash.
Under CCP section 1008(a), any party affected by a Court’s order may seek reconsideration of that order by filing an application within 10 days after service of the notice of entry of the order. The application must be based on new or different facts, circumstances, or law, and be made to the same judge that made the order (italics added for emphasis). The party making the application must state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. CCP section 1008(e) states that CCP section 1008 specifies the Court’s jurisdiction with regard to applications for reconsideration and that no application to reconsider any order may be considered unless made according to section 1008. The language of CCP section 1008(e) makes it absolutely clear that a Court’s power to hear successive motions is restricted to motions that comply with CCP section 1008, subdivisions (a) and (b). Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal. App. 4th 197, 211.
A review of the Defendants’ motion reveals that it fails to comply with CCP section 1008(a). The Defendants’ attorney, Gene Tu, submitted a declaration in which he authenticated the exhibits, which are copies of the Court’s minute order and tentative rulings. Mr. Tu does not state what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.
Further, the motion does not identify the new or different facts, circumstances, or law. Instead, the Defendants recite prior rulings concerning other motions and then concludes that the Court should have denied the Plaintiffs’ application for a writ of attachment and granted the Defendants’ motion to quash. The Court’s prior rulings are not “new” facts, circumstances, or law and this is insufficient to support a motion for reconsideration. Further, as noted above, the Court has no jurisdiction to hear a motion for reconsideration unless it complies with CCP section 1008.

California law authorizes the Court, on its own motion, to reconsider its prior interim orders. Le Francois v. Goel (2005) 35 Cal. 4th 1094, 1107-1108. The Supreme Court found that it does not matter whether the “judge has an unprovoked flash of understanding in the middle of the night” or acts in response to a party’s suggestion. Id. If a Court believes that one of its prior interim orders should be reconsidered, it is able to reconsider that order and issue a different order no matter how it came to acquire that belief. Id.
The Court issued a tentative ruling on June 25, 2014 in which it expressly identified the bases for its order granting the application for a writ of attachment. The Court found that the Plaintiffs had provided evidence that the Defendants had engaged in a fraudulent conveyance. Under Civil Code section 3439.07, the Court may issue writs of attachment or other provision remedies against the asset transferred or its proceeds. Accordingly, there were grounds to grant the application for a writ of attachment.
Further, the Court had taken under submission the Defendants’ motion to quash the subpoena for bank records of Rebecca Du Basba. Since the Court found that there was evidence of a fraudulent conveyance involving the property, the bank records are subject to discovery because they are directly related to the issue of whether there was a fraudulent conveyance of the property. Accordingly, there were grounds to deny the Defendants’ motion to quash.

Therefore, the Court will deny the Defendants’ motion for reconsideration.

2. Motions to Compel Further Responses
The Defendant seeks further responses to the following interrogatories:

1) form interrogatory 17.1 from Plaintiff, Anita Wang; and
2) form interrogatory 17.1 and special interrogatories 2, 3, 5, 6, 7, and 8 from Plaintiff, Charles Wang; and

Under CCP section 2030.300, the Court may order a party to serve further responses to interrogatories when the responses are incomplete or evasive or when they contain unmerited objections. Further, CRC rule 3.1345 requires a motion seeking to compel further responses to be accompanied by a separate statement that includes the following:

1) The text of the request, interrogatory, question, or inspection demand;
2) The text of each response, answer, or objection, and any further responses or answers;
3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;
4) If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;
5) If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and
6) If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.

CRC rule 3.1345 requires the separate statement to be “full and complete so that no person is required to review any other document in order to determine the full request and the full response.”
A review of the Defendant’s separate statement reveals that it is incomplete. Form Interrogatory 17.1 seeks information regarding responses to requests for admission that are not unqualified admissions in four subparts: the number of the request for admission, the facts upon which the response is based, the names, addresses, and telephone numbers of persons with knowledge of the facts, and the identity of documents that support the contention plus the name, address, and telephone number of the person who has each document. The Defendant’s separate statement does not indicate that the Plaintiffs responded to each subpart when they responded to form interrogatory 17.1. Instead, the Defendant’s separate statement includes only the portion of the Plaintiffs’ responses that addressed the second subpart. This creates the impression that the Plaintiffs’ responses are incomplete because the Plaintiffs did not respond to each subpart. The incomplete nature of the separate statement can be ascertained only by reviewing the actual text of the Plaintiffs’ responses, i.e., by reviewing other documents in order to determine the full response.
The Defendant’s separate statement violates the express requirements of CRC rule 3.1345 because the separate statement does not include the entire text of each response at issue. Further, the Defendant’s failure to comply with CRC rule 3.1345 creates the misleading impression that the Plaintiffs’ responses are incomplete, which could be grounds under CCP section 2030.300 to grant the motion.
Therefore, the Court will deny the Defendant’s motions to compel further responses because the Defendant did not draft separate statements that comply with CRC rule 3.1345.
Further, a review of the Plaintiffs’ actual responses, which are in exhibit 7 to the declaration of Defendant’s counsel, Gene Tu, reveals that the Plaintiffs served proper responses. The Plaintiffs addressed each subpart to form interrogatory 17.1, provided facts, identified the persons with knowledge of the facts, and identified the documents including the facts. In addition, the Plaintiff, Charles Wang, provided facts in response to special interrogatories 2, 3, 5, 6, 7, and 8, which are contention interrogatories. There are no grounds to find that the responses to the form interrogatories or to the special interrogatories are incomplete or evasive.
This dispute arises because the Defendant argues that the Plaintiffs merely repeated the facts that they alleged in their Complaint. The Defendant offers no legal authority holding that a party cannot repeat the facts alleged in their pleadings. Since the Plaintiffs provided their responses under penalty of perjury, their responses are not mere allegations, conjecture, or conclusions.
For example, the Plaintiffs denied a request that they admit that Charles Wang did not loan any money to the Defendant in request for admission 3. The Plaintiffs stated in their response to form interrogatory 17.1 concerning request for admission 3 that they lend the Defendant $500,000 on July 29, 2055 memorialized by two checks, that the Defendant provided a stock certificate as collateral for the loan, that the Defendant stated he would repay the $500,000 loan with interest, and that the Defendant asked for an additional loan of $500,000 in February of 2007, which the Plaintiffs loaned in March 2007 through three checks. This response is proper because it contains the facts supporting the denial of request for admission 3.
Another example is special interrogatory 2, which sought facts supporting Charles Wang’s contention that he loaned money to the Defendant. Charles Wang’s response included the same facts, e.g., he loaned the Defendant $500,000 on July 29, 2055 memorialized by two checks. This response is proper because it contains the facts supporting the contention in the pleadings.

Therefore, the Court will deny the Defendant’s two motions to compel further responses from the Plaintiffs because the Defendant failed to comply with CRC rule 3.1345 by providing the complete text of the Plaintiffs’ response and because a review of the Plaintiffs’ responses reveal that they are complete and not evasive.

The Plaintiffs request an award of monetary sanctions for the attorney’s fees that they incurred to oppose these two motions. Under CCP section 2030.300, there are grounds to impose monetary sanctions on the Defendant because he unsuccessfully sought to compel further responses to his interrogatories.
The Plaintiffs’ attorney, Matthew Pero, provides facts to demonstrate that he expects to spend 4 hours at $400 per hour on each opposition. The Court will adjust the hourly rate by reducing it to $250 per hour because this is a reasonable rate to bill for discovery motions.
Accordingly, the Court will impose monetary sanctions of $1,000 on the Defendant for each motion, i.e., $1,000 for the motion directed at Anita Wang and $1,000 for the motion directed at Charles Wang.

RULING:
1. DENY Defendant’s Motion for Reconsideration
2. DENY Defendant’s Motion to Compel Further Responses from Plaintiff, Anita Wang
: IMPOSE monetary sanctions on the Defendant, payable to the Plaintiff in the sum of $1,000.00 to be paid within thirty days.
2. DENY Defendant’s Motion to Compel Further Responses from Plaintiff, Charles Wang
: IMPOSE monetary sanctions on the Defendant, payable to the Plaintiff in the sum of $1,000.00 to be paid within thirty days