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ClV-130
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and addres FOR COURT USE ONLY
Frank J. Perretta SBN126947 | M. Jonathan Robb, Jr. SBN 290457
| Miller, Morton, Caillat & Nevis, LLP
50 W. San Fernando Street, Suite 1300
San Jose, CA 95113
TELEPHONE NO: (408) 292-1765 FAX NO. Ontona(’48) 436-8272
EMAIL ADDRESS (Optiona): fjp(@millermorton.com | mir@millermorton.com
ATTORNEY FOR (wame): Patrick Lin, et al. - Defendants
SUPERIOR COURT OF CALIFORNIA, COUNTY OF Santa Clara
STREET ADDRESS: 191 N. First Street
MAILING ADDRESS:
CITY AND ZIP CODE: San Jose, CA 95113
BRANCH NAME! Downtown
PLAINTIFF/PETITIONER: Sherry Hsieh, et al.
DEFENDANT/RESPONDENT: Patrick Lin, et al
NOTICE OF ENTRY OF JUDGMENT CASE NUMBER:
OR ORDER 2015-1-CV-287361
(Check one). (7) uNuimiTeD CASE [J uimitep case
(Amount demanded (Amount demanded was
exceeded $25,000) $25,000 or less)
TO ALL PARTIES
41. A judgment, decree, or order was entered in this action on (date): February 20, 2018
2. Acopy of the judgment, decree, or order is attached to this notice.
\ OSE],
Date: April 12, 2018
M. Jonathan Robb, Jr.
(VBE OF PRINT NAME OF ATTORNEY [-] PARTY WITHOUT ATTORNEY) {SIGNATURE}
Page 1 of 2
Form Approved for Optional Use www: courtinfo.ca.gov
Judicial Council of California NOTICE OF ENTRY OF JUDGMENT OR ORDER
CiV-130 [New January 1, 2010]
CIV-130
PLAINTIFF/PETITIONER: Sherry Hsieh, et al. CASE NUMBER:
2015-1-CV-287361
DEFENDANT/RESPONDENT: Patrick Lin, et al.
PROOF OF SERVICE BY FIRST-CLASS MAIL
NOTICE OF ENTRY OF JUDGMENT OR ORDER
(NOTE: You cannot serve the Notice of Entry of Judgment or Order if you are a party in the action. The person who served
the notice must complete this proof of service.)
1 | am at least 18 years old and not a party to this action. | am a resident of or employed in the county where the mailing took
place, and my residence or business address is (specify): Miller, Morton, Caillat & Nevis, LLP
50 W. San Fernando Street, Suite 1300, San Jose, CA 95113
2. | served a copy of the Notice of Entry of Judgment or Order by enclosing it in a sealed envelope with postage
fully prepaid and (check one):
deposited the sealed envelope with the United States Postal Service.
b. [__] placed the sealed envelope for collection and processing for mailing, following this business's usual practices,
with which | am readily familiar. On the same day correspondence is placed for collection and mailing, it is
deposited in the ordinary course of business with the United States Postal Service.
3. The Notice of Entry of Judgment or Order was mailed:
a. on (date): April 12, 2018
b. from (city and state): San Jose, California
4. The envelope was addressed and mailed as follows:
a. Name of person served: c. Name of person served:
Sherry Hsieh Yeao-Nan Hsieh
Street address: 52 Dunbarton Court Street address: 52 Dunbarton Court
City: San Ramon City: San Ramon
State and zip code: CA 94583 State and zip code: CA 94583
Name of person served: Name of person served:
man chou
Street address: (01% La woda prive Street address:
City:cupertino City:
State and zip code: 4 “S014 State and zip code:
Cc) Names and addresses of additional persons served are attached. (You may use form POS-030(P).)
5. Number of pages attached 9
| declare under penalty of perjury under the laws of the State of California that the foregoing is true, yd correct.
Date: April 12, 2018
Julia C. Tien
(TYPE OR PRINT NAME OF DECLARANT) (si IRE OF DECLAR, iT)
Page 2 of 2
CIV-130 [Now January 1, 2010} NOTICE OF ENTRY OF JUDGMENT OR ORDER
——
c i bey c
FEB 2 4 2018
H
Samp Ciara
Erbe BROUTY
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
10
i
12 | SHERRY HSIEH, et al., | Case No.: 2015-1-CV-287361
Plaintiffs, | ORDER RE: MOTION TO COMPEL
i
14 VS
DECISION ON SUBMITTED MATTER
15
PATRICK LIN, et al.,
16
17 Defendants.
18
et a
19
20 The motion to compel filed by defendants Patrick Lin and Rosa Lin came on for hearing
21 before the Honorable Mary E. Arand on January 9, 2018, at 9:00 a.m. in Department 9. The
22 matter having been submitted, the Court orders as follows:
23 This is a breach of contract and fraud action initiated by plaintiffs Sherry Hsieh
24 (“Sherry”) and Yeao-Nan Hsieh (“Yeao-Nan”) (collectively “Plaintiffs”) against defendants
25
Patrick Lin (“Patrick”) and Rosa Lin (“Rosa”) ( collectively “Defendants”), who are husband
and!
26 wife, and their children Jemmy Lin (“Jemmy”) and May Lin (“May”) !.
27
a —
28
‘The Court will refer to the parties by their first names for clarity and not out of disrespect
. (See Rubenstein v.
Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fi, 1.)
1
ORDER RE: MOTION TO COMPEL
According to the allegations of the first amended complaint (“FAC”), Plaintiffs’ claims
are predicated on two oral contracts. First, on February 5, 2003, Patrick, then a resident of
California, borrowed $56,000.00 from Plaintiffs, which he orally promised to repay with 10%
compound interest, (FAC, 4.) Rosa is equally responsible for the loan as Patrick’s wife. (ld.
at { 5.) Defendants never repaid the loan. (ld. at § 8.)
Next, in August 2004, Defendants orally agreed to lease a residence located in Saratoga,
California from Plaintiffs on a month-to-month basis. (FAC,{ 10.) In October 2004, without
giving notice to Plaintiffs, Defendants permanently left California and moved to Taiwan. (Jd. at
11-12.) Upon their departure, Jemmy orally agreed to take over his parents’ lease starting
10 December 1, 2004. (/bid.) Thereafter, May orally agreed to take over Jemmy’s lease from July
11 1, 2013 to June 30, 2015. (Jd. at § 15.) None of the Lin family fully paid their rent, despite
12 representations they would do so. (dd. at ] 13-16.) Even though Defendants no longer lived at
13 the rental property, they are liable as guarantors for their children. (Jd. at9 19.)
14 Plaintiffs assert causes of action for breach of oral contract, fraud, and common counts.
15 On July 12, 2017, Patrick and Rosa separately served essentially identical form interrogatories,
16 special interrogatories, requests for admissions, and requests for production on both Sherry
and
17 Yeao-Nan, totaling eight sets of written discovery. (Robb Decl., Exhs. A-P.) It is undisputed
18 that Plaintiffs served untimely substantive responses to that discovery on August 26,
2017. (Jd.
19 at Exhs. Q-HH.) Defendants considered the responses to be deficient in numerous respects, For
20 example, Plaintiffs’ responses did not answer some of the individual requests. Further,
response:
21 to many requests were incomplete. For instance, Sherry’s original response to RPD No.
40 was
22 “ssssssss.” (Robb Decl., Exh. EE.) Defendants’ counsel attempted to meet and confer
with
23 Plaintiffs, who were self-represented at the time, but never received a response. (id.
at [§ 40-43
24 Defendants subsequently filed a motion for an order compelling Plaintiffs to provide
25 further responses to numerous form interrogatories, special interrogatories, and requests
for
26 production, deeming numerous requests for admissions admitted, and awarding
them monetary
27
28
2
ORDER RE: MOTION TO COMPEL,
a
sanctions.’ At the hearing on November 9, 2017, the Court was informed Plaintiffs had obtained
counsel, who stated he would amend the admittedly deficient discovery responses. To allow
Plaintiffs to prepare amended responses, the Court continued the hearing to January 9, 2018.
The Court ordered Defendants to file supplemental papers, including an amended notice of
motion, separate statement, declaration with the amended responses attached thereto, and
supporting memorandum. The Court stated the purpose of requiring Defendants to file
supplemental papers was to clarify what requests remain at issue after the service ofamended
responses and simplify the original moving papers, which were presented in a confusin
g manner.
Defendants subsequently filed the requested supplemental papers in which they state
10 Plaintiffs provided amended responses to all of the discovery at issue with the exception of
six
11 requests propounded on Sherry, rendering the majority of the motion moot. Defendants
12 presently seek an order compelling Sherry to provide further responses to Patrick’s requests
for
13 production, set two (“RPD”), Nos. 27-32, deeming admitted Patrick’s requests
for admissions,
14 set two (“RFA”), Request No. 51, and awarding them monetary sanctions.>
15 1 Merits of the Motion
16 A. Requests for Production
17 Patrick moves to compel Sherry to further respond to RPD Nos, 27-32, which seek
18 documents reflecting the residency and travel of Defendants, any cashing
of any checks paid to
19
20
21
22
23 ? The requests originally at issue were: (1) Patrick’s form interrogatories, set two,
Sherry and Yeao-Nan; (2) Rosa’s form interrogatories, set one, No. 17.1 » Propou
No. 17.1, propounded on both
nded on Sherry; (3) Rosa’s form
24 interrogatories, set two, No. 17.1, propounded on Yeao-Nan; (4) Patrick’ »
's special interrogatories, two set, Nos. 19-
53, propounded on both Sherry and Yeao-Nan; (5) Rosa’s special interro;
gatories, set one, Nos. 1-35, propounded on
25 both Sherry and Yeao-Nan; (6) Patrick’ Ss requests for admissions, set two,
No: s. 24 and 51, propounded on Sherry;
{7) Patrick’s requests for admissions, set two, No. 24, propounded on Yeao-]
Nan; (8) Patrick’: 's requests for
26 production, set two, Nos. 18-32 and 37-44, propounded on both Sherry
and Yeao-Nan; and ( 9) Rosa’s requests for
production, set one, Nos. 1-15 and 23-27, propounded on both Sherry
and Yeao-Nan.
27
> The Court notes the proposed order submitted with the su pplemental papers
only mentions RPD Nos. 29-32 and
28 RFA No. 51. However, the other supplemental Papers cle; arly indicate that
Defendants seek further responses to
RPD Nos. 27-29, The Court will therefore treat the motiot nas seeking to compel
further responses to RPD Nos. 27-
32 and RFA No. 51.
3
ORDER RE: MOTION TO COMPEL
Sherry by any of the defendants, and financial assets owned by Sherry between 2002 and the
present. *
Code of Civil Procedure section 203 1.310 provides a propounding party may move for an|
order compelling a further response to an inspection demand if that party considers the
substantive responsive to be deficient. The propounding party must make a threshold showing off
good cause for the discovery sought. (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish
good cause, the moving party must make “a fact-specific showing of relevance.” (Glenfeld
Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Discovery is
generally allowed for any non-privileged matters that are relevant to the subject matter involved
10 in the action “if the matter either is itself admissible in evidence or appears reasonably calculated
It to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) Information is
12 relevant to the subject matter if it might reasonably assist a party in evaluating its case, preparing
13 for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539,
14 1546.) Courts liberally construe the relevance standard, and any doubts as to whether a request
15 seeks information within the scope of discovery are generally resolved in favor ofallowing
16 discovery, (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)
17 Patrick contends there is good cause for the discovery sought. As to the travel
18 documents, Patrick aptly asserts good cause exists because the documents will help him
evaluate
19 Plaintiffs’ allegations relating to the statute of limitations. (See FAC, {§ 7, 11.) For
context,
20 Plaintiffs allege the statute of limitations is tolled pursuant to Code of Civil Procedure
section
21 351, which provides that the limitations period is tolled while the defendan
t is out of state, asa
22 result of Defendants’ absence from California since 2004, (/bid.) As such, documents relating
23 to Defendants’ absence from California are relevant to Plaintiffs’ claims. With respect
to the
24 financial documents, including financial statements and checks authored
by Defendants and
25 cashed by Sherry, Patrick persuasively argues such information will help him evaluate
whether
26
27
28 * Even though the motion as originally framed was brought by both Defendan
ts without distinguishing between the
individual requests,Patrick will solely be addressed as the moving party in addressing the
merits of the motion
because the remaining requests at issue were propounded by him.
4
ORDER RE: MOTION TO COMPEL
he repaid Sherry for the $56,000.00 loan and fully paid their rent. Consequently, Patrick
establishes good cause exists for the discovery sought.
Turning to the substantive responses, a responding party may respond to an inspection
demand by agreeing to comply or representing that he or she is unable to comply. (Code Civ.
Proc., § 2031.210, subd. (a)(1)-(2).) If a party agrees to comply with an inspection demand, he
or she must state whether the production will be allowed in whole or in part and whether all
demanded documents that are in the possession, custody, or control of that party will be included
in the production. (Code Civ. Proc., § 2031.220.) Ifa party represents he or she is unable to
comply, he or she must indicate a diligent search and reasonable inquiry was undertaken, state
10 the reason the documents could not be located (e.g., lost, destroyed, never existed), and identify
11 any individuals he or she believes might have the requested documents. (Code Civ. Proc.,
12 § 2031.230.)
13 Sherry’s responses clearly do not meet these standards. In response to RPD No, 27,
14 which seeks all documents relating to Rosa’s residency between 2002 and the present, Sherry
15 responded that “Rosa Wang should show the passport or the tax he filed to proof how long he
16 has lived in California since December 2002.” (Robb Decl., Exh, EE.) This
response is not
17 code-compliant because it is neither an agreement to comply nor a statement of
inability to
18 comply. RPD Nos. 28 and 29 seek similar documents as RPD No. 27, to which
Sherry provided
19 comparable non-code-compliant responses. RPD Nos. 30-32 seek documents relating
to
20 Sherry’s cashed checks and financial assets. Sherry provided a nearly identical
response to each
21 Tequest, stating the “[clopies of checks [or statements] sent to attorney
David Henshaw.”> (/bid.)
22 This response is presumably intended to be a statement of compliance
as Sherry appears to
23 represent that the responsive documents have already been produced to Defenda
nts’ prior
24 attorney. It is not code-compliant, however, because it does not state whether
production is
25 allowed in whole or in part and whether Sherry will produce all documents in her
possession,
26
27
28
$ David Henshaw was Defendants’ prior counsel in this action.
5
ORDER RE: MOTION TO COMPEL
custody, and control. (See Code Civ. Proc., § 2031.220.) Because the responses are not code-
compliant, further responses to RPD Nos. 27-32 are warranted.
B. Requests for Admissions
Patrick seeks an order deeming RFA No. 51 admitted. The party to whom requests for
admissions have been propounded is required to serve a response within 30 days or on any later
date to which the parties have agreed. (Code Civ. Proc., §§ 2033.250, 2033.260.) If the party to
whom requests for admissions are directed fails to serve a timely response, the propounding
party may move for an order that the truth of any matter specified therein be deemed admitted,
(Code Civ. Proc., § 2033.280, subd. (b).) The moving party need only show that the discovery
10 was propounded and a timely response was not served. (Demyer v. Costa Mesa Mobile Home
11 Estates (1995) 36 Cal.App.4th 393, 395, disapproved of on another point by Wilcox v.
12 Birtwhistle (1999) 21 Cal.4th 973.) The court must make this order unless it finds that the
13 responding party served a proposed response before the hearing on the motion that is
14 substantially code-compliant, (Code Civ. Proc., § 2033.280, subd. (c).)
IS Here, it is undisputed Sherry has not responded to RFA No. 51. Sherry’s response to
16 RFA No. 51 was omitted from her original responses to the RFA. (See Robb Decl., Exh. 1.)
17 Sherry also did not respond to RFA No. 51 in her amended responses. (See Supp. Robb Decl.,
18 Exh. LL.) There is nothing to suggest Sherry submitted or plans to submit a proposed
response
19 to RFA No. 51 prior to this hearing. As such, RFA No. 51 should be deemed admitted.
20 Sherry does not advance any arguments compelling a contrary conclusion. First, Sherry
21 argues the RFA violates Code of Civil Procedure section 2033.050 because more
than 35
22 Tequests were contained therein and Patrick did not serve a declaration for additional discover
y
23 as required. This argument lacks merit as Patrick’s attorney served Sherry with such
a
24 declaration. (See Robb Decl., Exh. I.) Next, Sherry argues Patrick’s reservation of a hearing
25 date for a motion for summary judgment indicates he “already [has] evidence [he]
need[s]”
26 because such a motion requires establishing there are no triable issues of material
fact. (Opp., p.
27 2:15-16.) This has no bearing on whether Sherry is required to respond to discover
y. The fact
28
6
ORDER RE: MOTION TO COMPEL
Patrick reserved a date for a summary judgment hearing is simply irrelevant to the issues before
the Court.
Cc. Conclusion
Accordingly, the motion is GRANTED IN PART and DENIED IN PART. The motion is|
GRANTED to the extent Patrick seeks an order deeming RFA No. 51 admitted and compelling
further responses to RPD Nos. 27-32. Sherry shall serve verified code-compliant further
tesponses to the RPD, without objections, within 20 calendar days of notice of entry of this
Order signed by the Court. The remainder of the motion is DENIED as MOOT.
Ul. Request for Sanctions
10 Defendants seek an order imposing monetary sanctions on both Sherry and Yeao-Nan
11 pursuant to Code of Civil Procedure sections 2031.310, subdivision (h), 2030.300, subdivision
12 (d), and Code of Civil Procedure section 2033.280, subdivision (c). The former two statutes deal
13 with the imposition of sanctions in connection with motions to compel further response
s to
14 inspection demands and interrogatories, and the latter statute governs the imposition of sanctions
15 relative to motions to deem requests for admissions admitted.
16 As to inspection demands and interrogatories, sanctions shall be imposed against any
17 party who unsuccessfully opposes a motion to compel further responses unless the party
subject
18 to sanctions acted with substantial justification or other circumstances would make imposing
19 sanctions unjust. (Code Civ. Proc., §§ 2030.300 subd. (d), 2031.310, subd. (h).) The court may
20 award sanctions even when the requested discovery was provided to the moving party
after the
21 motion was filed. (Cal. Rules of Court, rule 3.1 348(a).)
22 Here, although Defendants technically did not prevail on the majority of their motion
23 since Plaintiffs served amended responses rendering it largely moot (after the motion
was filed),
24 they are nonetheless entitled to sanctions to the extent their motion seeks to compel
further
25 responses to the form interrogatories, special interrogatories, and requests for producti
on as
26 Plaintiffs did not act with substantial justification in opposing this motion and there
are no
27 circumstances that would make the imposition of sanctions unjust.
28
7
ORDER RE: MOTION TO COMPEL
In light of this conclusion, it is unnecessary to address whether Defendants may also be
entitled to an award of monetary sanctions pursuant to Code of Civil Procedure section
2033.280, subdivision (c) in connection with their request for an order deeming the requests for
admissions admitted.6 Even assuming Defendants are not entitled to sanctions, the Court’s
award would not be different. To be clear, the amount of sanctions awarded is not dependent on
the requests for admissions as they were a nominal portion of the motion.
At the hearing, then counsel for Plaintiffs (who has since withdrawn from the case)
argued against the imposition of sanctions. The Court does not find those arguments persuasive,
but will adopt the tentative ruling that already reduced the amount of sanctions the Court will
10 award.
11 Defendants request sanctions in the amount of $5,000.00, accounting for at least 20 hours
12 of time at $275.00 per hour for drafting the original and supplemental papers.” (Supp. Robb
13 Decl., 23.) Even though Defendants were required to draft amended papers, the Court does not|
14 consider 20 hours of time spent to be reasonable given the limited number of requests at issue
in
45 the amended papers and the relative simplicity of the motion. Instead, the Court finds 10 hours
16 of time spent to be more reasonable. Accordingly, Defendants’ request for monetar
y sanctions is
17 GRANTED IN PART in the amount of $2,750.00 (10 hours x $275.00). Plaintiffs shall
jointly
18 pay this sanction to Defendants’ counsel within 20 calendar days of this notice
of entry of the
19 signed Order.
20
21
22 Date: [v0 je \e €
23 Mary E. Ararfd
Judge of the Superior Court
24
25
26
° This statute provides that an award of monetary sanctions in connecti
on with a motion to deem requests for
27 admissions admitted is mandatory if the responding party failed to timely
respond to the subject discovery and serve
substantially code-compliant responses. (See St. Mary v. Superior Court
(2014) 223 Cal.App.4th 762, 779-780.)
28
” Defendants acknowledge that 20 hours at anhourly rate of $275.00 exceeds
$5,000.00, but do not seek the full
amount of money for time spent on the motion.
8
ORDER RE: MOTION TO COMPEL
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SA CLARA
f DOWNT OWN © © RTHO
eee
ay N
SAN J RN: 9 3
TVEL DIVISION
FEB 9 1 2018
sopA teen
RE: Bibiaeke He i anton
Serta Clam
S. Hsieh, et al vs P. Lin, et al es DALY
Case Number: 2015-1-CV-287361
PROOF OF SERVICE
ORDER ON SUBMITTED MATTER: MOTION TO COMPEL was delivered to the parties listed below the above
entitled case as set forth in the sworn declaration below.
fy @ patty fepresented by you, or a witness to be called on behalf of that party need an accommodation under the American
with:
Disabilities Act. please contact the Court Administrator's office at (408) 882-2700, or use the Court's TOD line
(408) 882-2690 or the
Voioe/TDD California Relay Service (800) 735-2922.
DECLARATION OF SERVICE BY MAIL; | declare that | served this notice by enclosing a true
copy in a sealed envelope, addressed to
ach person whose name is shown below. and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose.
CA on February 21, 2018, CLERK OF THE COURT, by Julie Nashed, Deputy.
ce: Sherry Hsieh 52 Dunbarton Ct San Ramon CA 94583
Yeao-Nan Hsieh §2 Dunbarton Ct San Ramon CA 94583
Frank Joseph Perretta Miller Morton Caillat & Nevis 60 W San Fernando Suite 1800 San Jose CA 95113
~~
CW-9027 REV 12/08/76 PROOF OF SERVICE
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ClV-130 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and addres FOR COURT USE ONLY Frank J. Perretta SBN126947 | M. Jonathan Robb, Jr. SBN 290457 | Miller, Morton, Caillat & Nevis, LLP 50 W. San Fernando Street, Suite 1300 San Jose, CA 95113 TELEPHONE NO: (408) 292-1765 FAX NO. Ontona(’48) 436-8272 EMAIL ADDRESS (Optiona): fjp(@millermorton.com | mir@millermorton.com ATTORNEY FOR (wame): Patrick Lin, et al. - Defendants SUPERIOR COURT OF CALIFORNIA, COUNTY OF Santa Clara STREET ADDRESS: 191 N. First Street MAILING ADDRESS: CITY AND ZIP CODE: San Jose, CA 95113 BRANCH NAME! Downtown PLAINTIFF/PETITIONER: Sherry Hsieh, et al. DEFENDANT/RESPONDENT: Patrick Lin, et al NOTICE OF ENTRY OF JUDGMENT CASE NUMBER: OR ORDER 2015-1-CV-287361 (Check one). (7) uNuimiTeD CASE [J uimitep case (Amount demanded (Amount demanded was exceeded $25,000) $25,000 or less) TO ALL PARTIES 41. A judgment, decree, or order was entered in this action on (date): February 20, 2018 2. Acopy of the judgment, decree, or order is attached to this notice. \ OSE], Date: April 12, 2018 M. Jonathan Robb, Jr. (VBE OF PRINT NAME OF ATTORNEY [-] PARTY WITHOUT ATTORNEY) {SIGNATURE} Page 1 of 2 Form Approved for Optional Use www: courtinfo.ca.gov Judicial Council of California NOTICE OF ENTRY OF JUDGMENT OR ORDER CiV-130 [New January 1, 2010] CIV-130 PLAINTIFF/PETITIONER: Sherry Hsieh, et al. CASE NUMBER: 2015-1-CV-287361 DEFENDANT/RESPONDENT: Patrick Lin, et al. PROOF OF SERVICE BY FIRST-CLASS MAIL NOTICE OF ENTRY OF JUDGMENT OR ORDER (NOTE: You cannot serve the Notice of Entry of Judgment or Order if you are a party in the action. The person who served the notice must complete this proof of service.) 1 | am at least 18 years old and not a party to this action. | am a resident of or employed in the county where the mailing took place, and my residence or business address is (specify): Miller, Morton, Caillat & Nevis, LLP 50 W. San Fernando Street, Suite 1300, San Jose, CA 95113 2. | served a copy of the Notice of Entry of Judgment or Order by enclosing it in a sealed envelope with postage fully prepaid and (check one): deposited the sealed envelope with the United States Postal Service. b. [__] placed the sealed envelope for collection and processing for mailing, following this business's usual practices, with which | am readily familiar. On the same day correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service. 3. The Notice of Entry of Judgment or Order was mailed: a. on (date): April 12, 2018 b. from (city and state): San Jose, California 4. The envelope was addressed and mailed as follows: a. Name of person served: c. Name of person served: Sherry Hsieh Yeao-Nan Hsieh Street address: 52 Dunbarton Court Street address: 52 Dunbarton Court City: San Ramon City: San Ramon State and zip code: CA 94583 State and zip code: CA 94583 Name of person served: Name of person served: man chou Street address: (01% La woda prive Street address: City:cupertino City: State and zip code: 4 “S014 State and zip code: Cc) Names and addresses of additional persons served are attached. (You may use form POS-030(P).) 5. Number of pages attached 9 | declare under penalty of perjury under the laws of the State of California that the foregoing is true, yd correct. Date: April 12, 2018 Julia C. Tien (TYPE OR PRINT NAME OF DECLARANT) (si IRE OF DECLAR, iT) Page 2 of 2 CIV-130 [Now January 1, 2010} NOTICE OF ENTRY OF JUDGMENT OR ORDER —— c i bey c FEB 2 4 2018 H Samp Ciara Erbe BROUTY SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 i 12 | SHERRY HSIEH, et al., | Case No.: 2015-1-CV-287361 Plaintiffs, | ORDER RE: MOTION TO COMPEL i 14 VS DECISION ON SUBMITTED MATTER 15 PATRICK LIN, et al., 16 17 Defendants. 18 et a 19 20 The motion to compel filed by defendants Patrick Lin and Rosa Lin came on for hearing 21 before the Honorable Mary E. Arand on January 9, 2018, at 9:00 a.m. in Department 9. The 22 matter having been submitted, the Court orders as follows: 23 This is a breach of contract and fraud action initiated by plaintiffs Sherry Hsieh 24 (“Sherry”) and Yeao-Nan Hsieh (“Yeao-Nan”) (collectively “Plaintiffs”) against defendants 25 Patrick Lin (“Patrick”) and Rosa Lin (“Rosa”) ( collectively “Defendants”), who are husband and! 26 wife, and their children Jemmy Lin (“Jemmy”) and May Lin (“May”) !. 27 a — 28 ‘The Court will refer to the parties by their first names for clarity and not out of disrespect . (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fi, 1.) 1 ORDER RE: MOTION TO COMPEL According to the allegations of the first amended complaint (“FAC”), Plaintiffs’ claims are predicated on two oral contracts. First, on February 5, 2003, Patrick, then a resident of California, borrowed $56,000.00 from Plaintiffs, which he orally promised to repay with 10% compound interest, (FAC, 4.) Rosa is equally responsible for the loan as Patrick’s wife. (ld. at { 5.) Defendants never repaid the loan. (ld. at § 8.) Next, in August 2004, Defendants orally agreed to lease a residence located in Saratoga, California from Plaintiffs on a month-to-month basis. (FAC,{ 10.) In October 2004, without giving notice to Plaintiffs, Defendants permanently left California and moved to Taiwan. (Jd. at 11-12.) Upon their departure, Jemmy orally agreed to take over his parents’ lease starting 10 December 1, 2004. (/bid.) Thereafter, May orally agreed to take over Jemmy’s lease from July 11 1, 2013 to June 30, 2015. (Jd. at § 15.) None of the Lin family fully paid their rent, despite 12 representations they would do so. (dd. at ] 13-16.) Even though Defendants no longer lived at 13 the rental property, they are liable as guarantors for their children. (Jd. at9 19.) 14 Plaintiffs assert causes of action for breach of oral contract, fraud, and common counts. 15 On July 12, 2017, Patrick and Rosa separately served essentially identical form interrogatories, 16 special interrogatories, requests for admissions, and requests for production on both Sherry and 17 Yeao-Nan, totaling eight sets of written discovery. (Robb Decl., Exhs. A-P.) It is undisputed 18 that Plaintiffs served untimely substantive responses to that discovery on August 26, 2017. (Jd. 19 at Exhs. Q-HH.) Defendants considered the responses to be deficient in numerous respects, For 20 example, Plaintiffs’ responses did not answer some of the individual requests. Further, response: 21 to many requests were incomplete. For instance, Sherry’s original response to RPD No. 40 was 22 “ssssssss.” (Robb Decl., Exh. EE.) Defendants’ counsel attempted to meet and confer with 23 Plaintiffs, who were self-represented at the time, but never received a response. (id. at [§ 40-43 24 Defendants subsequently filed a motion for an order compelling Plaintiffs to provide 25 further responses to numerous form interrogatories, special interrogatories, and requests for 26 production, deeming numerous requests for admissions admitted, and awarding them monetary 27 28 2 ORDER RE: MOTION TO COMPEL, a sanctions.’ At the hearing on November 9, 2017, the Court was informed Plaintiffs had obtained counsel, who stated he would amend the admittedly deficient discovery responses. To allow Plaintiffs to prepare amended responses, the Court continued the hearing to January 9, 2018. The Court ordered Defendants to file supplemental papers, including an amended notice of motion, separate statement, declaration with the amended responses attached thereto, and supporting memorandum. The Court stated the purpose of requiring Defendants to file supplemental papers was to clarify what requests remain at issue after the service ofamended responses and simplify the original moving papers, which were presented in a confusin g manner. Defendants subsequently filed the requested supplemental papers in which they state 10 Plaintiffs provided amended responses to all of the discovery at issue with the exception of six 11 requests propounded on Sherry, rendering the majority of the motion moot. Defendants 12 presently seek an order compelling Sherry to provide further responses to Patrick’s requests for 13 production, set two (“RPD”), Nos. 27-32, deeming admitted Patrick’s requests for admissions, 14 set two (“RFA”), Request No. 51, and awarding them monetary sanctions.> 15 1 Merits of the Motion 16 A. Requests for Production 17 Patrick moves to compel Sherry to further respond to RPD Nos, 27-32, which seek 18 documents reflecting the residency and travel of Defendants, any cashing of any checks paid to 19 20 21 22 23 ? The requests originally at issue were: (1) Patrick’s form interrogatories, set two, Sherry and Yeao-Nan; (2) Rosa’s form interrogatories, set one, No. 17.1 » Propou No. 17.1, propounded on both nded on Sherry; (3) Rosa’s form 24 interrogatories, set two, No. 17.1, propounded on Yeao-Nan; (4) Patrick’ » 's special interrogatories, two set, Nos. 19- 53, propounded on both Sherry and Yeao-Nan; (5) Rosa’s special interro; gatories, set one, Nos. 1-35, propounded on 25 both Sherry and Yeao-Nan; (6) Patrick’ Ss requests for admissions, set two, No: s. 24 and 51, propounded on Sherry; {7) Patrick’s requests for admissions, set two, No. 24, propounded on Yeao-] Nan; (8) Patrick’: 's requests for 26 production, set two, Nos. 18-32 and 37-44, propounded on both Sherry and Yeao-Nan; and ( 9) Rosa’s requests for production, set one, Nos. 1-15 and 23-27, propounded on both Sherry and Yeao-Nan. 27 > The Court notes the proposed order submitted with the su pplemental papers only mentions RPD Nos. 29-32 and 28 RFA No. 51. However, the other supplemental Papers cle; arly indicate that Defendants seek further responses to RPD Nos. 27-29, The Court will therefore treat the motiot nas seeking to compel further responses to RPD Nos. 27- 32 and RFA No. 51. 3 ORDER RE: MOTION TO COMPEL Sherry by any of the defendants, and financial assets owned by Sherry between 2002 and the present. * Code of Civil Procedure section 203 1.310 provides a propounding party may move for an| order compelling a further response to an inspection demand if that party considers the substantive responsive to be deficient. The propounding party must make a threshold showing off good cause for the discovery sought. (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the moving party must make “a fact-specific showing of relevance.” (Glenfeld Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Discovery is generally allowed for any non-privileged matters that are relevant to the subject matter involved 10 in the action “if the matter either is itself admissible in evidence or appears reasonably calculated It to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) Information is 12 relevant to the subject matter if it might reasonably assist a party in evaluating its case, preparing 13 for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 14 1546.) Courts liberally construe the relevance standard, and any doubts as to whether a request 15 seeks information within the scope of discovery are generally resolved in favor ofallowing 16 discovery, (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) 17 Patrick contends there is good cause for the discovery sought. As to the travel 18 documents, Patrick aptly asserts good cause exists because the documents will help him evaluate 19 Plaintiffs’ allegations relating to the statute of limitations. (See FAC, {§ 7, 11.) For context, 20 Plaintiffs allege the statute of limitations is tolled pursuant to Code of Civil Procedure section 21 351, which provides that the limitations period is tolled while the defendan t is out of state, asa 22 result of Defendants’ absence from California since 2004, (/bid.) As such, documents relating 23 to Defendants’ absence from California are relevant to Plaintiffs’ claims. With respect to the 24 financial documents, including financial statements and checks authored by Defendants and 25 cashed by Sherry, Patrick persuasively argues such information will help him evaluate whether 26 27 28 * Even though the motion as originally framed was brought by both Defendan ts without distinguishing between the individual requests,Patrick will solely be addressed as the moving party in addressing the merits of the motion because the remaining requests at issue were propounded by him. 4 ORDER RE: MOTION TO COMPEL he repaid Sherry for the $56,000.00 loan and fully paid their rent. Consequently, Patrick establishes good cause exists for the discovery sought. Turning to the substantive responses, a responding party may respond to an inspection demand by agreeing to comply or representing that he or she is unable to comply. (Code Civ. Proc., § 2031.210, subd. (a)(1)-(2).) If a party agrees to comply with an inspection demand, he or she must state whether the production will be allowed in whole or in part and whether all demanded documents that are in the possession, custody, or control of that party will be included in the production. (Code Civ. Proc., § 2031.220.) Ifa party represents he or she is unable to comply, he or she must indicate a diligent search and reasonable inquiry was undertaken, state 10 the reason the documents could not be located (e.g., lost, destroyed, never existed), and identify 11 any individuals he or she believes might have the requested documents. (Code Civ. Proc., 12 § 2031.230.) 13 Sherry’s responses clearly do not meet these standards. In response to RPD No, 27, 14 which seeks all documents relating to Rosa’s residency between 2002 and the present, Sherry 15 responded that “Rosa Wang should show the passport or the tax he filed to proof how long he 16 has lived in California since December 2002.” (Robb Decl., Exh, EE.) This response is not 17 code-compliant because it is neither an agreement to comply nor a statement of inability to 18 comply. RPD Nos. 28 and 29 seek similar documents as RPD No. 27, to which Sherry provided 19 comparable non-code-compliant responses. RPD Nos. 30-32 seek documents relating to 20 Sherry’s cashed checks and financial assets. Sherry provided a nearly identical response to each 21 Tequest, stating the “[clopies of checks [or statements] sent to attorney David Henshaw.”> (/bid.) 22 This response is presumably intended to be a statement of compliance as Sherry appears to 23 represent that the responsive documents have already been produced to Defenda nts’ prior 24 attorney. It is not code-compliant, however, because it does not state whether production is 25 allowed in whole or in part and whether Sherry will produce all documents in her possession, 26 27 28 $ David Henshaw was Defendants’ prior counsel in this action. 5 ORDER RE: MOTION TO COMPEL custody, and control. (See Code Civ. Proc., § 2031.220.) Because the responses are not code- compliant, further responses to RPD Nos. 27-32 are warranted. B. Requests for Admissions Patrick seeks an order deeming RFA No. 51 admitted. The party to whom requests for admissions have been propounded is required to serve a response within 30 days or on any later date to which the parties have agreed. (Code Civ. Proc., §§ 2033.250, 2033.260.) If the party to whom requests for admissions are directed fails to serve a timely response, the propounding party may move for an order that the truth of any matter specified therein be deemed admitted, (Code Civ. Proc., § 2033.280, subd. (b).) The moving party need only show that the discovery 10 was propounded and a timely response was not served. (Demyer v. Costa Mesa Mobile Home 11 Estates (1995) 36 Cal.App.4th 393, 395, disapproved of on another point by Wilcox v. 12 Birtwhistle (1999) 21 Cal.4th 973.) The court must make this order unless it finds that the 13 responding party served a proposed response before the hearing on the motion that is 14 substantially code-compliant, (Code Civ. Proc., § 2033.280, subd. (c).) IS Here, it is undisputed Sherry has not responded to RFA No. 51. Sherry’s response to 16 RFA No. 51 was omitted from her original responses to the RFA. (See Robb Decl., Exh. 1.) 17 Sherry also did not respond to RFA No. 51 in her amended responses. (See Supp. Robb Decl., 18 Exh. LL.) There is nothing to suggest Sherry submitted or plans to submit a proposed response 19 to RFA No. 51 prior to this hearing. As such, RFA No. 51 should be deemed admitted. 20 Sherry does not advance any arguments compelling a contrary conclusion. First, Sherry 21 argues the RFA violates Code of Civil Procedure section 2033.050 because more than 35 22 Tequests were contained therein and Patrick did not serve a declaration for additional discover y 23 as required. This argument lacks merit as Patrick’s attorney served Sherry with such a 24 declaration. (See Robb Decl., Exh. I.) Next, Sherry argues Patrick’s reservation of a hearing 25 date for a motion for summary judgment indicates he “already [has] evidence [he] need[s]” 26 because such a motion requires establishing there are no triable issues of material fact. (Opp., p. 27 2:15-16.) This has no bearing on whether Sherry is required to respond to discover y. The fact 28 6 ORDER RE: MOTION TO COMPEL Patrick reserved a date for a summary judgment hearing is simply irrelevant to the issues before the Court. Cc. Conclusion Accordingly, the motion is GRANTED IN PART and DENIED IN PART. The motion is| GRANTED to the extent Patrick seeks an order deeming RFA No. 51 admitted and compelling further responses to RPD Nos. 27-32. Sherry shall serve verified code-compliant further tesponses to the RPD, without objections, within 20 calendar days of notice of entry of this Order signed by the Court. The remainder of the motion is DENIED as MOOT. Ul. Request for Sanctions 10 Defendants seek an order imposing monetary sanctions on both Sherry and Yeao-Nan 11 pursuant to Code of Civil Procedure sections 2031.310, subdivision (h), 2030.300, subdivision 12 (d), and Code of Civil Procedure section 2033.280, subdivision (c). The former two statutes deal 13 with the imposition of sanctions in connection with motions to compel further response s to 14 inspection demands and interrogatories, and the latter statute governs the imposition of sanctions 15 relative to motions to deem requests for admissions admitted. 16 As to inspection demands and interrogatories, sanctions shall be imposed against any 17 party who unsuccessfully opposes a motion to compel further responses unless the party subject 18 to sanctions acted with substantial justification or other circumstances would make imposing 19 sanctions unjust. (Code Civ. Proc., §§ 2030.300 subd. (d), 2031.310, subd. (h).) The court may 20 award sanctions even when the requested discovery was provided to the moving party after the 21 motion was filed. (Cal. Rules of Court, rule 3.1 348(a).) 22 Here, although Defendants technically did not prevail on the majority of their motion 23 since Plaintiffs served amended responses rendering it largely moot (after the motion was filed), 24 they are nonetheless entitled to sanctions to the extent their motion seeks to compel further 25 responses to the form interrogatories, special interrogatories, and requests for producti on as 26 Plaintiffs did not act with substantial justification in opposing this motion and there are no 27 circumstances that would make the imposition of sanctions unjust. 28 7 ORDER RE: MOTION TO COMPEL In light of this conclusion, it is unnecessary to address whether Defendants may also be entitled to an award of monetary sanctions pursuant to Code of Civil Procedure section 2033.280, subdivision (c) in connection with their request for an order deeming the requests for admissions admitted.6 Even assuming Defendants are not entitled to sanctions, the Court’s award would not be different. To be clear, the amount of sanctions awarded is not dependent on the requests for admissions as they were a nominal portion of the motion. At the hearing, then counsel for Plaintiffs (who has since withdrawn from the case) argued against the imposition of sanctions. The Court does not find those arguments persuasive, but will adopt the tentative ruling that already reduced the amount of sanctions the Court will 10 award. 11 Defendants request sanctions in the amount of $5,000.00, accounting for at least 20 hours 12 of time at $275.00 per hour for drafting the original and supplemental papers.” (Supp. Robb 13 Decl., 23.) Even though Defendants were required to draft amended papers, the Court does not| 14 consider 20 hours of time spent to be reasonable given the limited number of requests at issue in 45 the amended papers and the relative simplicity of the motion. Instead, the Court finds 10 hours 16 of time spent to be more reasonable. Accordingly, Defendants’ request for monetar y sanctions is 17 GRANTED IN PART in the amount of $2,750.00 (10 hours x $275.00). Plaintiffs shall jointly 18 pay this sanction to Defendants’ counsel within 20 calendar days of this notice of entry of the 19 signed Order. 20 21 22 Date: [v0 je \e € 23 Mary E. Ararfd Judge of the Superior Court 24 25 26 ° This statute provides that an award of monetary sanctions in connecti on with a motion to deem requests for 27 admissions admitted is mandatory if the responding party failed to timely respond to the subject discovery and serve substantially code-compliant responses. (See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 779-780.) 28 ” Defendants acknowledge that 20 hours at anhourly rate of $275.00 exceeds $5,000.00, but do not seek the full amount of money for time spent on the motion. 8 ORDER RE: MOTION TO COMPEL SUPERIOR COURT OF CALIFORNIA COUNTY OF SA CLARA f DOWNT OWN © © RTHO eee ay N SAN J RN: 9 3 TVEL DIVISION FEB 9 1 2018 sopA teen RE: Bibiaeke He i anton Serta Clam S. Hsieh, et al vs P. Lin, et al es DALY Case Number: 2015-1-CV-287361 PROOF OF SERVICE ORDER ON SUBMITTED MATTER: MOTION TO COMPEL was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. fy @ patty fepresented by you, or a witness to be called on behalf of that party need an accommodation under the American with: Disabilities Act. please contact the Court Administrator's office at (408) 882-2700, or use the Court's TOD line (408) 882-2690 or the Voioe/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL; | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to ach person whose name is shown below. and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose. CA on February 21, 2018, CLERK OF THE COURT, by Julie Nashed, Deputy. ce: Sherry Hsieh 52 Dunbarton Ct San Ramon CA 94583 Yeao-Nan Hsieh §2 Dunbarton Ct San Ramon CA 94583 Frank Joseph Perretta Miller Morton Caillat & Nevis 60 W San Fernando Suite 1800 San Jose CA 95113 ~~ CW-9027 REV 12/08/76 PROOF OF SERVICE