17-CIV-04748 ZHE ZHANG, ET AL. VS. JAMES KING YOUNG, ET AL.

ZHE ZHANG JAMES KING YOUNG
JAMES CAI DANIEL J. MASH

MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FOR SANCTIONS AGAINST DEFENDANTS JAMES YOUNG AND MARGARITA YOUNG TENTATIVE RULING:

This matter concerns two motions concerning four parties: One motion by Plaintiff BLACK PINE GROUP against Defendant JAMES YOUNG and one motion by Plaintiff ZHE ZHANG against Defendant MARGARITA YOUNG. Plaintiffs, however, filed both motions as a single matter. The Court directs Plaintiffs’ counsel to file motions separately in the future.

A. BLACK PINE GROUP’s Motion to Compel JAMES YOUNG to Produce Documents

The motion is DENIED.

1. The motion identifies documents that purportedly have not been produced, but the motion does not indicate whether the missing documents are responsive to any document category. Plaintiff’s failure to specify the document categories places the burden on the Court to figure out whether the non-produced documents are responsive to any of the 45 categories. This is not the Court’s responsibility.

2. A motion to compel production of documents is proper when a party responds that he will comply with the request, but then fails to do so. (Code of Civ. Proc. Sect. 2031.320.) The motion identifies six types of documents that were not produced. (See Moving Sep. Stmt para. 4 at p.10-11; Moving P&A para 12 at pp.4-5). The motion offers no evidence that any of documents are, or ever were, in JAMES YOUNG’s possession, custody, or control. Therefore, the Court cannot determine that Defendant YOUNG “failed to permit” inspection of the documents or that his response (statement of compliance) included these documents.

B. BLACK PINE GROUP’s Motion to Compel Further Responses by JAMES YOUNG)

1. Category 16

The motion is GRANTED as to Category 16. The taxpayer privilege belongs to BLACK PINE, and it is BLACK PINE that is asking for the document. JAMES YOUNG offers no argument that a taxpayer is precluded from access to its own tax returns. A further response is required. Defendant JAMES YOUNG argues that producing the tax returns to other parties (e. g., Defendant Cenna) would violate the privilege. That issue is not before the Court; the only issue is the sufficiency of JAMES YOUNG’s written response, not the actual production of documents.

2. Categories 46 & 47

The motion is GRANTED as to Categories 46 and 47. Neither request is compound within the meaning of the Discovery Act. Both categories constitute a “reasonable particularization” of the respective categories.

Defendant JAMES YOUNG’s right of privacy argument is not fully set forth; he does not clearly identify any natural persons whose privacy is at issue, nor does the Opposition set forth the privacy rights of a family trust or a limited liability company. Further, the right of privacy is less when it pertains to a party to the action. Regardless, the responses to Categories 46 and 47 are deficient because they do not “identify with particularity any document” to which the objection is made. (See Code of Civ. Proc. Sect. 2031.240, subd. (b).)

C. BLACK PINE’s Motion for Sanctions against JAMES YOUNG

The motion for sanctions against JAMES YOUNG is DENIED. The motion to compel production of documents has no merit, but the motion to compel further responses does. Regardless, a request for sanctions “shall” include “a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code of Civ. Proc. Sect. 2023.040.) The supporting declaration fails to comply with this requirement. The declaration supporting the companion motion against Defendant MARGARITA YOUNG (below) states only that Plaintiff requests $7,000 against JAMES YOUNG, but contains no facts supporting the request. Plaintiff’s waiting until its Reply papers (Roshanian Declaration filed February 26, 2019) to submit facts supporting the request is insufficient; section 2023.040 specifically requires that the declaration of facts accompany the Notice of Motion, not be withheld until the Reply.

D. ZHANG’s Motion to Compel MARGARITA YOUNG to Produce of Documents. The motion is DENIED as moot. After Plaintiff filed this motion, MARGARITA YOUNG served, on February 16, 2019, a second Supplemental Response stating that she has no responsive documents. (Opposing Decl. of Mash para. 5, with Exhibit C). The Court cannot compel production of documents that a responding party states she does not have.

E. ZHANG’s Motion to Compel Further Responses from Margaret YOUNG.

The motion is DENIED as untimely. A motion to compel further responses must be filed within 45 days of the date when the responses were served. (Code of Civ. Proc. Sect. 2031.310, subd. (c).) If the motion is not brought within the 45-day period, the motion is waived. (Id.) After 45 days, the Court lacks jurisdiction over the matter other than to deny it. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

MARGARITA served her response to Request for Documents on September 18, 2018. The deadline for this motion was November 2, 2018 (45 days plus five additional days pursuant to Code of Civ. Procedure sect. 1013). Plaintiff filed this motion on January 17, 2019. The 45-day deadline may be extended, but the parties must agree in writing. No extension occurred here.

F. ZHANG’s Motion for Sanctions against MARGARITA YOUNG The motion for sanctions is DENIED. Both motions against Margarita Young are denied, and the supporting declaration fails to comply with the requirement of Code of Civ. Proc. sect 2023.040; the declaration does not set forth “facts supporting the amount of any monetary sanction sought” as that statute requires.

G. Ruling

1. BLACK PINE’s Motion to Compel Production of Documents by Defendant JAMES YOUNG is DENIED.

2. JAMES YOUNG shall serve a verified supplemental response to Demand for Production (Set Two), Category 16.

3. JAMES YOUNG shall serve verified supplemental responses to Demand for Production (Set Two), Categories 46 and 47. The response shall comply with Code of Civil Procedure section 2031.240, subd. (b), by (1) identifying with particularity every document to which an objection is made and (2) setting forth clearly the extent and specific ground for the objection.

4. JAMES YOUNG shall serve all verified supplemental responses to categories 16, 46, and 47, no later than March 22, 2019.

5. ZHE ZHANG’s motion to compel production of documents and motion to compel further responses from MARGARITA YOUNG are DENIED.

6. The respective motions for sanctions by BLACK PINE and ZHE ZHANG are DENIED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.