Superior Court, State of California



DATE: Tuesday, 15 August 2023

TIME: 9:00 A.M.

Please note that for the indefinite future, all hearings will be conducted remotely as the Old Courthouse will be closed. This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Please use the Zoom link below.

“A person's name is to him or her the sweetest and most important sound in any language.”—Dale Carnegie. All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” Please inform the Court how you, or if your client is with you, you and your client prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers. You might also try but that site mispronounces my name.

You may use these links for Case Management Conferences and Trial Setting Conferences without Court permission. Informal Discovery Conferences and appearances on Ex Parte applications will be set on Order by the Court.

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APPEARANCES.

Appearances are usually held on the Zoom virtual platform. However, we are currently allowing in court appearances as well. If you do intend to appear in person, please advise us when you call to contest the tentative ruling so we can give you current instructions as to how to enter the building.

Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply. (See Jensen v. Superior Court (San Diego) (1984) 154 Cal.App.3d 533.). Counsel should use good quality equipment and with sufficient bandwith. Cellphones are very low quality in using a virtual platform. Please use the video function when accessing the Zoom platform. The Court expects to see the faces of the parties appearing on a virtual platform as opposed to listening to a disembodied voice.

For new Rules of Court concerning remote hearings and appearances, please review California Rules of Court, rule 3.672.

This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 8(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the Court at (408) 808-6856 before 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter.

Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d). A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c). Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.

All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.

While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.) As for personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are not required in all courthouses. If you appear in person and do wear a mask, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.

Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.

Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party. If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”

CIVILITY.

In the 48 years that this Judge has been involved with the legal profession, the discussion of the decline in civility in the legal profession has always been one of the top topics of continuing education classes.

This Court is aware of a study being undertaken led by Justice Brian Currey and involving various lawyer groups to redefine rules of civility. This Judge has told Justice Currey that the lack of civility is due more to the inability or unwillingness of judicial officers to enforce the existing rules.

The parties are forewarned that this Court may consider the imposition of sanctions against the party or attorney who engages in disruptive and discourteous behavior during the pendency of this litigation.

COURT REPORTERS.

This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.

This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter so that only one reporter appears and serves as the official reporter for that hearing.

PROTOCOLS DURING THE HEARINGS.

During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.

The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.

TROUBLESHOOTING TENTATIVE RULINGS.

To access a tentative ruling, move your cursor over the line number, hold down the “Control” key and click. If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. Another suggestion is to “clean the cache” of your browser. Finally, you may have to switch browsers. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.

This Court's tentative ruling is just that—tentative. Trial courts are not bound by their tentative rulings, which are superseded by the final order. (See Faulkinbury v. Boyd & Associates, Inc. (2010) 185 Cal.App.4th 1363, 1374-1375.) The tentative ruling allows a party to focus his or her arguments at a subsequent hearing and to attempt to convince the Court the tentative should or should not become the Court's final order. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 917.) If you wish to challenge a tentative ruling, please refer to a specific portion of the tentative ruling to which you disagree.

|LINE # |CASE # |CASE TITLE |TENTATIVE RULING |

|LINE 1 |21CV385675 |Michelle Santos v. Amandeep Singh |Order of Examination of Bohr Bandal. |

| | | |Continued from 13 June 2023. The parties should advise the court via |

| | | |the Tentative Ruling Protocol as to how they wish to proceed. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 2 |21CV385675 |Michelle Santos v. Amandeep Singh |Order of Examination of Amandeep Singh. |

| | | |Continued from 13 June 2023. The parties should advise the court via |

| | | |the Tentative Ruling Protocol as to how they wish to proceed. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 3 |22CV409212 |Yevgeniy Dukhovny, Faina Karasina v. Essex Property |Order On Defendant GE Appliance, Inc.’s Motion To Strike Prayer for |

| | |Trust, Inc., et al. |Punitive Damages From Plaintiffs’ Complaint. |

| | | |The motion to strike is GRANTED with 10 days’ leave to amend. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 4 |20CV368535 |Jinjue Zhang v. Benlin Yuan; Hong Lin; Camiwell, Inc. |Motion of Plaintiff Jinju Zhang To Compel Defendants . Benlin Yuan and|

| | | |Hong Lin To Provide Further Responses To Request For Production Set 1,|

| | | |Nos. 22 and 26 and Set 2, Nos. 34, 35, 37, 39, and 41 and Request For |

| | | |Sanctions. |

| | | |The motion of plaintiff to compel defendants to provide further |

| | | |responses to request for production of documents is GRANTED. |

| | | |Defendants are to provide code-compliant responses within 20 days of |

| | | |the filing and service of this order. |

| | | |The request of plaintiff for monetary sanctions is GRANTED IN PART. |

| | | |This Court will order that the defendants pay to counsel for plaintiff|

| | | |the sum of $5000.00 within 20 days of the filing and service of this |

| | | |Order. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 5 |21CV391687 |Oswald Campesato v. Jiahua Huang; Jane Wang. |Motion of Defendant Jane Wang to Compel Plaintiff to Respond to Form |

| | | |Interrogatories, Set One, Request for Production of Documents, Set |

| | | |One, to Deem Matters to Be Admitted, and for Monetary Sanctions. |

| | | |The motion is DENIED. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 6 |21CV391687 |Oswald Campesato v. Jiahua Huang et al. |Motion of Defendants to Set Aside Court Order Entered on 20 April |

| | | |2023. |

| | | |The motion is DENIED. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 7 |21CV391687 |Oswald Campesato v. Jiahua Huang et al. |Motion of Defendants Jane Wang for Reconsideration of Default Judgment|

| | | |etc. |

| | | |The motion is DENIED. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 8 |21CV377862 |Lan Bui v. Hardip Singh |Motion of Plaintiff for Attorney’s Fees. |

| | | |No opposition has been filed. |

| | | |Counsel for plaintiff seeks attorney’s fees in the amount of |

| | | |$54,632.11. |

| | | |The request is GRANTED. However, since no opposition has been filed, |

| | | |the Court will deduct $2,200.00 for reviewing opposition in preparing |

| | | |a reply brief. Therefore, this Court will award to plaintiff the sum |

| | | |of $52,432.11. Defendants are to pay that sum to counsel for |

| | | |plaintiff within 20 days of the filing and service of this Order |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 9 |2015-1-CV-286652 |Wei Peng “Michal” Zhang et al. v. Hardip Singh et al. |Motion of Plaintiff for Attorney’s Fees. |

| | | |No opposition has been filed. |

| | | |Counsel for plaintiff seeks attorney’s fees in an amount “no less than|

| | | |$4,422.17.” |

| | | |The request is GRANTED. Defendants are to pay that sum to counsel for|

| | | |plaintiff within 20 days of the filing and service of this Order |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 10 |23CV415532 |In re: J. G. Wentworth Originations, LLC |Petition of J. G. Wentworth Originations, LLC For Approval of Transfer|

| | | |of Payment Rights (Belen Carrillo). |

| | | |Petition of J. G. Wentworth Originations LLC For Approval For Transfer|

| | | |Of Payment Rights. |

| | | |Petitioner seeks an order giving to it the ability to buy a portion of|

| | | |a structured settlement payment from the payee, Belen Carrillo, that |

| | | |was received as a settlement in a personal injury action. |

| | | |An appropriate declaration from the payee is included. |

| | | |When the original settlement was completed, the future periodic |

| | | |payments that are the subject of the proposed transfer were solely |

| | | |monetary in nature and were not intended to provide for necessary |

| | | |living expenses or for medical expenses. |

| | | |California Insurance Code, § 10136(b) requires that at least ten days |

| | | |prior to the effective date of the transfer agreement, the transferee |

| | | |shall provide the payee with a separate written disclosure statement. |

| | | |The disclosure statement must be in at least 12-point type unless |

| | | |otherwise indicated and accurately completed with the information that|

| | | |applies to the transfer agreement in a form substantially similar to |

| | | |that set forth in California Insurance Code, § 10136(b). The required |

| | | |separate written disclosure is attached to the moving papers. |

| | | |The petition is GRANTED. Petitioner is to submit an appropriate form |

| | | |for signature by this Court. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 11 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 12 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 13 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 14 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 15 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 16 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 17 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 18 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 19 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 20 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 21 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 22 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 23 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 24 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 25 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 26 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 27 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 28 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 29 | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 30 | | |SEE ATTACHED TENTATIVE RULING. |

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| | |

|SUPERIOR COURT, STATE OF CALIFORNIA | |

|COUNTY OF SANTA CLARA | |

| | |

|DEPARTMENT 20 | |

| | |

|161 North First Street, San Jose, CA 95113 | |

|408.882.2320 · 408.882.2296 (fax) | |

|smanoukian@ | |

| |(For Clerk's Use Only) |

|CASE NO.: |22CV409212 |Yevgeniy Dukhovny, Faina Karasina v. Essex Property Trust, Inc., et al. |

|DATE: 15 August 2023 |TIME: 9:00 AM |LINE NUMBERS: 03 |

|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |

|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 14 August 2023. Please specify |

|the issue to be contested when calling the Court and Counsel. |

|---oooOooo--- |

|Order On Defendant GE Appliance, Inc.’s |

|Motion To Strike Prayer for Punitive Damages |

|From Plaintiffs’ Complaint. |

I. Statement of Facts.

On 4 May 2022, decedent Leonid Samoylovich aka Joseph Dukhovny (“Decedent”) and his ex-wife, plaintiff Faina Karasina (“Ms. Karasina”), were in an apartment building owned by defendant Essex Property Trust, Inc. in Mountain View, California. (Compl., ¶ 16.) Around 1:00 PM, a fire broke out on the second floor of the apartment building, in unit 232. (Ibid.)

Within minutes, the fire vented into the hallway of the apartment building, filling the area with smoke. (Compl., ¶ 16.) Decedent and Ms. Karasina attempted to flee their apartment building but were overcome with smoke. (Ibid.) The hallway exit sign was not illuminated at the time and there were no markings on the ground to advise residents where to go after exiting their unit. (Ibid.) Ms. Karasina managed to walk down the hallway and exit the building. (Ibid.)

However, Decedent was unable to find the exit and was also unable to re-enter his unit because he could not see the electronic pad for the keyless entry due to the smoke. (Ibid.) The apartment building lacked an internal sprinkler system and the hallway had multiple internal fire doors that were not properly maintained. (Ibid.) Further, the residents were not provided with instruction or training on how to exit. (Ibid.)

Thereafter, Decedent was declared dead at 3:07 PM at El Camino Health Hospital due to smoke inhalation. (Compl., ¶ 17.) He was eighty-three years old and in great physical condition at the time of his death. (Id. at ¶ 16.)

The fire was found to have started in the kitchen of unit 232. (Compl., ¶ 17.) In the kitchen was a Chefman, Inc. air fryer and GE Appliance, Inc. cooking range and refrigerator. The Mountain View Fire Department determined the source and origin of the fire was “inclusive.”[1] (Ibid.)

Decedent’s adult son, Yevgeniy Dukhovny, and Ms. Karasina, bring this action against defendants Aleksander Dukhovny, Decedent’s other son; Essex Property Trust, Inc.; Alex Downin and Megan Carr, the tenants of unit 232; Chefman, Inc., the designer, manufacturer, and seller of the air fryer in unit 232; and GE Appliance, Inc. (“GE”), the designer, manufacturer, and seller of the cooking range and refrigerator in unit 232.

On 28 December 2022,[2] Plaintiffs filed their Complaint, asserting the following causes of action:

1) Negligence [against all defendants];

2) Strict Products Liability [against Chefman, Inc. and GE];

3) Negligence-Product Manufacture Defect [against Chefman, Inc. and GE];

4) Negligence-Failure to Warn [against Chefman, Inc. and GE];

5) Survival Action [by Yevgeniy Dukhovny on behalf of Decedent against all defendants].

Defendant GE moves to strike punitive damages from Plaintiffs’ complaint.

II. Motion to Strike.

A. Legal Standard.

Pursuant to Code of Civil Procedure section 436, a Court may strike out: 1) any irrelevant, false, or improper matter inserted into any pleading or 2) strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (See Code of Civil Procedure, § 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code of Civil Procedure, § 437, subdivision (a).) In ruling on a motion to strike, a court reads the complaint as a whole, all parts in their context, and assumes the truth of all well-pleaded allegations. (Clauson v. Superior Ct. (1998) 67 Cal.App.4th 1253, 1255.)

B. Punitive Damages.

Defendant GE moves to strike the following portion of Plaintiffs’ prayer for damages in the Complaint:

“6. For punitive damages as to the cause of action for Product Liability[.]”

GE argues Plaintiffs fail to sufficiently allege “‘ultimate facts of the defendant’s oppression fraud or malice” (GE’s Motion to Strike, p. 2:25-27) and specifically, Plaintiffs fail to sufficiently allege facts to maintain a demand for punitive damages against a corporate defendant such as GE (id. at p. 3:13-18).

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Fraud is an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [internal citations and quotations omitted].)

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint.” (Monge v. Superior Ct. (1986) 176 Cal.App.3d 503, 510.)

“Punitive damages are awarded not to compensate a tort victim but to punish persons ‘guilty of recklessness or wickedness.’” (Cruz v. Homebase (2000) 83 Cal.App.4th 160, 166 (Homebase).) “Punitive damages may be awarded in a products liability case.” (Siva v. General Tire & Rubber Co. (1983) 146 Cal.App.3d 152, 158.) However, “[c]orporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation.” (Homebase, supra, 83 Cal.App.4th at p. 167.)

Instead, as GE notes in its motion, “the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civil Code, § 3294, subdivision (b); see also GE’s Motion to Strike, p. 3:7-10.) Thus, Plaintiffs must plead facts showing GE’s advance knowledge, authorization, or ratification of the oppression, fraud, or malice on the part of an officer, director, or managing agent of GE. (See Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 167-168 (Grieves) [granting motion to strike punitive damages against corporation where plaintiff failed to allege knowledge, authorization, or ratification of a corporate managing agent].)

Specifically, Plaintiffs must plead that GE had “(1) advance knowledge of the employee’s unfitness; (2) authorization or ratification of the wrongful conduct; and (3) personal culpability.” (Id. at p. 167.)

The Court first notes Plaintiffs’ opposition does not address GE’s argument seeking punitive damages against a corporate defendant. (Glendale Redevelopment Agency v. Parks (1993) 18 Cal.App.4th 1409, 1424 [issue is impliedly conceded by failing to address it].) Moreover, the opposition merely recites case law and then provides a copy of the second through fourth causes of action found in the Complaint with no argument or analysis. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [“citing cases without any discussion of their application to the present case results in forfeiture”].)

That being said, the Court does not find sufficient allegations of GE’s knowledge, authorization, or ratification or act of oppression, fraud, or malice on the part of a managing agent of GE. Moreover, while the Complaint contains allegations that GE “knew or should have known that their product’s likelihood and severity of potential harm from the product and the severity of potential harm far outweighs the Defendants’ burden to take safety measures to reduce and/or avoid the harm” (Compl., ¶ 34[3]) and GE “knew or reasonably should have known” that the products were dangerous or “likely to be dangerous when used or misused in a reasonably foreseeable manner” (id. at ¶ 39), the Complaint is specifically devoid of any allegations regarding the malicious or oppressive acts of any managing agent of GE. (See e.g., Grieves, supra, 157 Cal.App.3d at p.166 [“absent from the complaint is any assertion an officer, director or managing agent of [defendant corporation] was personally responsible for any of the acts allegedly performed by [defendant corporation”].) Thus, the Complaint does not sufficiently allege the elements of punitive damages against a corporate defendant.

Plaintiffs additionally argue, based on the above-referenced allegations, that GE’s conduct amounts to a conscious disregard of safety. (See Plaintiffs’ Opposition, p. 5:17-20.) While a “conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code[,] [i]n order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of [its] conduct and that [it] willfully and deliberately failed to avoid those consequences. Consequently, to establish malice, ‘it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless.’” (Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1044 [internal citations and quotations omitted]; see also Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.)

Here, the Complaint does not allege facts to establish GE was both aware of the probable dangerous consequences of its conduct and willfully and deliberately failed to avoid those consequences. (See Grieves, supra, 157 Cal.App.3d at p. 167 [“even if we interpret [defendants’] ‘knowledge’ as describing a state of mind from which conscious disregard of [plaintiff’s] rights might be inferred -- ‘a state of mind which would sustain an award of punitive damages’ . . ., we cannot ignore the recurring theme underlying [plaintiff’s] claim, i.e., that [defendants’] conduct was, at most, negligent”].)

Accordingly, the motion to strike punitive damages is GRANTED with 10 days’ leave to amend. (See Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360 [regarding demurrers and motions to strike, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question].) 

IV. Tentative Ruling.

The tentative was duly posted.

V. Conclusion and Order.

The motion to strike is GRANTED with 10 days’ leave to amend.

|___________________________ |______________________________________________ |

|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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|SUPERIOR COURT, STATE OF CALIFORNIA | |

|COUNTY OF SANTA CLARA | |

| | |

|DEPARTMENT 20 | |

| | |

|161 North First Street, San Jose, CA 95113 | |

|408.882.2320 · 408.882.2296 (fax) | |

|smanoukian@ | |

| | |

| |(For Clerk's Use Only) |

|CASE NO.: |20CV368535 |Jinjue Zhang v. Benlin Yuan; Hong Lin; Camiwell, Inc. |

|DATE: 14 August 2023 |TIME: 9:00 am |LINE NUMBER: 04 |

|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |

|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 14 August 2023. Please specify |

|the issue to be contested when calling the Court and Counsel. |

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|Order on Motion of Plaintiff Jinju Zhang To Compel Defendants |

|Benlin Yuan and Hong Lin To Provide Further Responses |

|To Request For Production Set 1, Nos. 22 and 26 |

|and Set 2, Nos. 34, 35, 37, 39, and 41 and Request For Sanctions. |

I. Statement of Facts.

In this lawsuit[4], plaintiff alleges causes of action for:

1. Breach of fiduciary duty;

2. unfair competition;

3. violation of Corporations Code, §§ 1601 and 1602; and

4. accounting.

Camiwell, Inc., formerly Camiwell, LLC, is an information technology company based in Santa Clara, California and operated by Zhang and his wife. The officers are Zhang, Yuan, and Hui Sun (“Sun”). The directors and shareholders are Zhang, Yuan, and Lin. Yuan is a 40% shareholder, Zhang is a 35% shareholder, and Lin is a 25% shareholder. Lin and Yuan are married and therefore control 65% of Camiwell, Inc. together. (Complaint, ¶ 12.)

Additionally, Camiwell US has a related entity, Camiwell Canada that is located in Canada and owned exclusively by Defendants. Camiwell, Inc. and Camiwell Canada are related as they perform the same business services, share the same website, have substantially the same customers, and share the same ownership (other than Zhang, Who is only a shareholder of Camiwell, Inc.). Additionally, Plaintiff believes that Camiwell, Inc. and Camiwell Canada utilize the same 0r substantially similar employees. (Complaint, ¶¶ 15, 16.)

Until the end of 2018, Camiwell Inc.’s main customer was Beijing Asiacom Technology Co. Ltd. (“Asiacom”), which is a contractor for large Chinese technology companies. Asiacom would subcontract their IT work to Camiwell, Inc., amounting to about 95% of Camiwell Inc.’s business. Plaintiff Zhang believes that Yuan and/or his brother hold an ownership interest in Asiacom. (Complaint, ¶ 17.)

Beginning in 2018, Yuan began negotiating with Asiacom regarding Asiacom’s acquisition of Camiwell, Inc. Zhang did not become aware of this until around April or May 2018. Zhang and Yuan were ultimately unable to agree to the terms of the acquisition and the acquisition fell through towards the end 0f 2018. After the acquisition fell through, Beijing Asiacom entered the Canadian and US markets by merging with Camiwell Canada and creating and operating Asiacom Americas Inc. in the United States (“Asiacom US”). Plaintiff Zhang believes that Yuan and/or his brother have an equity interest in Asiacom US. (Complaint, ¶ 18.)

Plaintiff contends that the defendants engaged in a scheme to deprive plaintiff of money to which he is entitled. Plaintiff contends that defendants accomplished this by transferring Camiwell Inc.’s (“Camiwell US”) assets and business to Beijing Asiacom Technology Co. Ltd. (“Asiacom”) and Asiacom Americas Inc. (“Asiacom US”), either directly or through Camiwell Inc., a separate entity from Camiwell US, located in Canada (“Camiwell Canada”). Additionally, the Complaint alleges that defendants transferred a substantial amount of money from Camiwell US to Camiwell Canada without any justification or explanation for the transfer. (Complaint, ¶¶ 19-26.)

II. Plaintiffs’ Motion to Compel Defendants to Provide Further Responses to Discovery Requests.[5]

The initial request for production of documents, set one, was served on 27 September 2021. Defendants served unverified responses and the parties engaged in extensive “meet and confer” discussions. Defendants eventually served a third amended response to set one.

In the interim, on 04 August 2022, plaintiff served request for production of documents, set two. Again, the parties engaged in several “meet and confer” discussions, which ended on 27 April 2023.

The parties agreed on multiple occasions to grant reciprocal extensions of time and it appears that this particular motion is timely.[6]

This Court understands that the parties have a protective order in place.

III. Analysis.

A. Motions to Compel Further Responses in General.

On receipt of response to requests for production of documents, the propounding party may move for an order compelling further responses if, among other grounds, “[a] representation of inability to comply is inadequate, incomplete, or evasive" or "[a]n objection in the response is without merit 0r too general." (Code of Civil Procedure, § 2031.310(a).)

On a motion to compel further responses to inspection demand, it is the moving party’s burden to show good cause (i.e., relevance, specific facts justifying discovery). (Code of Civil Procedure, § 2031.310(b).) If good cause is shown, the responding party must justify its objections. Kirkland v. Superior Court (Guess?, Inc.) (2002) 95 Cal.App.4th 92, 98.)

B. Defendants’ Responses.

Defendants objected to the discovery requests at issue with boilerplate responses, including the grounds of lack of relevance, burdensome, harassing, privilege, and on the basis that “ it seeks information that is not required to be provided and/or that it imposes obligations on the Responding Parties, that go beyond the scope of permissible discovery under the California Code of Civil Procedure. . . . .”

C. Objections in General.

To help the parties understand this Court’s view of discovery obligations in general, the following is offered:

1. Relevance.

“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.” (Code of Civil Procedure, § 2017.010.)

Discovery is allowed for any matters that are relevant to the subject matter of the action, not privileged, and reasonably calculated to lead to the discovery of admissible evidence. (See Code of Civil Procedure, § 2017.010; Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223.) Information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) These relevance standards are applied liberally with any doubt generally resolved in favor of discovery. (See Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)

Evidence Code, § 210’s definition of “relevant evidence” confuses admissibility and discoverability, and the more useful statute is Code of Civil Procedure, § 2017.010, which allows discovery of “matters” (not “evidence”) relevant to the subject matter of the pending action, including matters reasonably calculated to lead to the discovery of admissible evidence and the identity and location of witnesses and documents.

“Relevancy to the subject matter of the litigation is a much broader concept than relevancy to the precise issues presented by the pleadings. The subject matter of the action is the circumstances and facts out of which the cause of action arises; it is the property, contract, or other thing involved in the dispute; it is not the act or acts which constitute the cause of action, but describes physical facts in relation to which the suit is prosecuted. Information is "relevant to the subject matter if its discovery will tend to promote settlement or assist the party in preparing for trial.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1760.)

“[I]n order to be discoverable, the information sought must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence.” (Norton v. Superior Court (1994) 24 Cal. App. 4th 1750, 1755.)

“In the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. Admissibility is not the test, and it is sufficient if the information sought might reasonably lead to other admissible evidence.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448; See Gonzalez v. Superior Court (City of San Fernando) (1995) 33 Cal.App.4th 1539, 1546; Lipton v. Superior Court (Lawyers’ Mutual Insurance Co.) (1996) 48 Cal.App.4th 1599,1611; Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013.)

Where privacy rights are involved, a party must show direct relevance to a cause of action or defense that is essential for a determination of the truth of the matter in dispute. (See Britt v. Superior Court (San Diego Unified Port District) (1978) 20 Cal.3d 844, 855-856; Harris v. Court (Smets) (1992) 3 Cal.App.4th 661, 665.)

“Ultimately, it is for the court that oversees the trial in this matter to determine whether evidence pertaining to footprinting or any other area of inquiry is relevant and admissible. In resolving a discovery dispute, the court is in no position to make that determination. It can only attempt to foresee whether it is possible that information in a particular subject area could be relevant or admissible at the time of trial.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1397.)

“Our discovery statute recognizes that “the identity and location of persons having [discoverable] knowledge” are proper subjects of civil discovery. (Code of Civil Procedure, § 2017.010; see Judicial Council of Cal. Form Interrogatories Nos. 12.1–12.7.)” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 374.)

In exercising its discretion in determining what is relevant for purposes of discovery, this Court follows the approach articulated in Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1761 and Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1497:

“In accordance with the liberal policies underlying the discovery procedures, California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California's liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. In doing so, the courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party's case or to efficacious settlement of the dispute. The courts have also taken the view that wherever possible objections to discovery should be resolved by protective orders addressing the specific harm shown by the respondent as opposed to a more general attack on the ‘relevancy’ of information the proponent seeks to discover.”

2. “Fishing Expeditions.”

“[T]he claim that a party is engaged upon a fishing expedition is not, and under no circumstances can be, a valid objection to an otherwise proper attempt to utilize the provisions of the discovery statutes. Should the so-called fishing expedition be subject to other objections, it can be controlled.” (Greyhound Corp. v. Superior Court of Merced County (1961) 56 Cal.2d 355, 386).

“[F]ishing expeditions are permissible in some cases. (Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355, 385 [although fishing may be improper or abused in some cases, that "is not of itself an indictment of the fishing expedition per se"].)” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

3. Balancing Benefits And Burdens.

“[T]he court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression. In granting or refusing such order the court may impose upon either party or upon the witness the requirement to pay such costs and expenses, including attorney's fees, as the court may deem reasonable.” (Greyhound Corp. v. Superior Court of Merced County, supra at 370-371.)

“It is important to note at this point that we construe these objections as containing an implicit refusal to produce the items sought. It is true that Kim also raised the objection of ‘vague, ambiguous, and unintelligible’ to, for example, the demand for production of ‘Any and all bills, statements, invoices, and similar documents evidencing expenses alleged to have been incurred as a result of this incident. This request includes, but is not limited to, all medical bills, drug receipts, automobile repair bills and estimates, etc.’ However, we construe this as a ‘nuisance’ objection, and not as an attempt to justify a complete failure to comply. Had Kim relied on this objection to the extent of refusing to produce any medical bills or expense documentation, it is beyond question that this would have been subject to sanction.” (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 901.)

“[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Superior Court Superior Court (1961) 56 Cal.2d 407, 418.) A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship e.g., specific facts as to how much work, time, and expense would be required to respond and/or produce responsive documents. (Id. at p. 417-418; Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318 [review of documents would require 5 claims adjusters, working full time for six weeks each]; Williams v. Superior Court (2017) 3 Cal.5th 531, 549.)

Nowadays, the vast majority of businesses maintain records that are stored electronically and it appears that the requested information could be obtained with appropriate search terms. (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1253.)

On September 30 1955 act are changed to vehicle accident: card here said promise 42,012 In ruling on the objection, the court should balance the purpose and need for the information against the burden that production entails, including costs. (West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d at p. 418.) Generally, the party or deponent seeking a protective order must show that the burden, expense, or intrusiveness due to the discovery request clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.020; see also Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110-1111.)

Any discovery request, even an initial one, can be misused in an attempt to generate settlement leverage by creating burden, expense, embarrassment, distraction, etc. It is a judge's responsibility to control such abuse. (cf. Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 221 [discovery abuse is a spreading cancer; judges must be aggressive in curbing abuse; discovery statutes are prone to misuse absent judicial consideration for burden; courts must insist that discovery be used to facilitate litigation rather than as a weapon].)” (Obregón v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

4. Privilege.

"The attorney-client privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts upon which the communications are based (Benge v. Superior Court (1982) 131 Cal.App.3d 336, 349) and it does not extend to independent witnesses. (Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 143) or their discovery. (See also, Smith v. Superior Court (1961) 189 Cal.App.2d 6, 13; City & County of San Francisco v. Superior Court (1958) 161 Cal.App.2d 653, 656) Nor can the identity and location of persons having knowledge of relevant facts be concealed under the attorney work product rule of Code of Civil Procedure section 2018. (City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 73, quoting Code Civ. Proc., former § 2016.)” (Aerojet-General Corp. v. Transp. Indem. Ins. (1993) 18 Cal.App.4th 996, 1004.)

The extent of the privilege is not limitless. The privilege will not be upheld when (1) the circumstances indicate an intentional waiver of the privilege; (2) the gravamen of the lawsuit is inconsistent with the privilege; or (3) a public policy greater than that of the confidentiality of tax returns is involved. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 721.) The exception to privilege is narrow and applies only "when warranted by a legislatively declared public policy." (Weingarten v. Superior Court (Pointe San Diego Residential Community) (2002) 102 Cal.App.4th 268 (citing Schnabel v. Superior Court (1993) 5 Cal.4th 704, 721).)

“If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information or other parties to evaluate the merits of that claim, including, if necessary, a privilege log. (Code of Civil Procedure, § 2031.240(c)(1).[7])

The party asserting a privilege has the burden of proving the essential elements of the privilege. (Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 825.)

In Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, the Court stated: “[A] responding party may object to an interrogatory that seeks privileged information by clearly stating the objection and the particular privilege invoked. But the existence of a document containing privileged information is not privileged. [Citations.] Interrogatories may be used to discover the existence of documents in the other party's possession. [Citation.] If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document. [Citation.] [Consequently,] a 'privilege log' is unnecessary with regard to answering interrogatories seeking the identification of documents. [Citation.]” (Id. at p. 293, last italics added.) A party has “no right to refuse to identify documents in response to interrogatories, even if [it] may properly refuse to produce them later, based upon a claim of privilege. [Citation.]” (Id. at p. 294.)

A record log should be prepared that sufficiently allows a determination of whether each withheld document is or is not (in) fact privileged. (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 130.)

5. “Vague and Ambiguous.”

Occasionally party subject to discovery requests on the grounds that the requests are “vague and ambiguous.”  This objection is not well taken and may be treated as a nuisance objection, exposing the responding party to sanctions.  (Standon v. Superior Court (Kim) (1990) 225 Cal.App.3d 898, 903; see also Manzetti v. Superior Court (Fitzgerald) (1993) 21 Cal.App.4th 373, 377.)

6. “Boilerplate” Responses.

A party may not incorporate comprehensive boilerplate objections into each response. Objections must be tailored to each discovery request. (Scottsdale Insurance Co. v. Superior Court (1997) 59 Cal.App.4th 263, 275; Standon Co. v. Superior Court (Kim) (1990) 225 Cal.App.3d 898, 901. Providing an identical response to each discovery request which consists of objections can be considered as boilerplate objections which are improper and sanctionable.

7. Documents in Possession of “Third Parties.”

A party can be compelled to produce records located in another state or country if they are shown to be under the party's control. (See Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 810-811, 212 [Los Angeles partner in national accounting firm subpoenaed to produce records from partnership office in New York for trial in California]; see Padron v. Watchtower Bible and Tract Society of New York (2017) 16 Cal.App.5th 1246, 1256 (imposing daily monetary sanctions where defendant did “not file [] any declarations or evidence refuting that it does not have access to . . . files either directly or indirectly. . . .”.)]

D. Defendant’s Responses.

1. Requests for Production, Set One, Nos. 22, 26.

These requests seek documents concerning contracts between Camiwell Canada and Asiacom-US and records of Camiwell-Canada that are in the possession of the defendants for the period between 01 January 2016 and to the present.

This Court will OVERRULE the objections. This Court believes that the requests are germane to the issues raised in the cause of action in the complaint. As noted above, a protective order is already in place to protect any confidential information. Defendants are to provide code-compliant responses within 20 days of the filing and service of this order. If they wish to stand on any claim of privilege, they are to prepare an appropriate privilege log in order to test the bona fides of the claim of privilege.

2. Set 2, Nos. 34, 35, 37, 39, and 41.

These requests seek copies of documents memorializing purchases, sales, loan agreements, corporate meetings, shareholder and board meetings, etc. involving Camiwell Canada.

This Court will OVERRULE the objections. This Court believes that the requests are germane to the issues raised in the cause of action in the complaint. As noted above, a protective order is already in place to protect any confidential information. Defendants are to provide code-compliant responses within 20 days of the filing and service of this order. If they wish to stand on any claim of privilege, they are to prepare an appropriate privilege log in order to test the bona fides of the claim of privilege.

E. Sanctions.

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code of Civil Procedure, § 2023.040.)

Plaintiff requests monetary sanctions in the amount of $13,148.00 (discounted from $17,954.00). The request is code compliant but seems excessive. This Court understands that the bulk of the request is for efforts to meet and confer which counsel are expected to do as a precursor to any discovery motion.

This Court will order that the defendants pay to counsel for plaintiff the sum of $5,000.00 within 20 days of the filing and service of this Order.

IV. Tentative Ruling.

The tentative ruling in this matter was duly posted.

V. Conclusion and Order.

The motion of plaintiff to compel defendants to provide further responses to request for production of documents is GRANTED. Defendants are to provide code-compliant responses within 20 days of the filing and service of this order.

The request of plaintiff for monetary sanctions is GRANTED IN PART. This Court will order that the defendants pay to counsel for plaintiff the sum of $5000.00 within 20 days of the filing and service of this Order.

|_____________________________________ |__________________________________________________________ |

|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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[1] It is not clear if the fire department determined the source of the fire was “inclusive,” meaning it was started by all three appliances, or if “inclusive” is a typographical error meant to say “inconclusive.” (See Compl., ¶ 17.)

[2] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600-68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(c) and (b)(2)(c).

[3] Plaintiffs’ Complaint contains two paragraphs 34. The Court is referring to Paragraph 34 on p. 6.

[4] This lawsuit was filed on 20 July 2020. This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).

[5] Plaintiff entered into a stipulation with defendant Camiwell, Inc. concerning its discovery responses and that defendant is not affected by this motion.

[6] “Unless notice of this motion [to compel further responses] is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the inspection demand.” (Code of Civil Procedure, § 2031.310(c).)

[7]"It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law." ((Code of Civil Procedure, § 2031.240(c)(2).)

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