Judge Barbara M. Scheper, Case 20STCV47732 2022-08-16 Tentative Ruling

Judge: Barbara M. Scheper, Case: 20STCV47732, Date: 2022-08-16 Tentative Ruling

Case Number: 20STCV47732 Hearing Date: August 16, 2022 Dept: 30

Dept. 30

Calendar No.

Cho vs. Wincore, Inc., et. al., Case No. 20STCV47732

Tentative Ruling re: Defendants’ Motion for Sanctions

Defendants Wincore, Inc. and Yookwang Won (collectively, Defendants) move for an order imposing evidentiary sanctions against Plaintiff Young Won Cho (Plaintiff). The motion is denied.

A judge has broad discretion to impose discovery sanctions in a civil proceeding, and is subject to reversal only for arbitrary, capricious, or whimsical action. (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.) “The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the discovery but to impose punishment.” (Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 489.) In other words, for discovery abuse, “[t]he penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (McArthur v. Bockman (1989) 208 Cal.App.3d 1076, 1080.) Discovery sanctions are meant to “protect the interests of the party entitled to but denied discovery,” and should not operate to “put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.” (Siry Investment, LP. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1118.)

While the power to impose discovery sanctions is broad, there are two requirements that must be met before the imposition of issue, evidentiary, or terminating sanctions: (1) there must be a failure to comply with court-ordered discovery; and (2) the failure must be willful. (See Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; but see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291 [“willfulness is no longer a requirement for the imposition of discovery sanctions”].) Generally, these two requirements are “absolutely prerequisite” to the imposition of discovery sanctions. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.)

Factors relevant to the discretionary imposition of discovery sanctions include the amount of time the party has had to answer; the difficulty in obtaining answers; the materiality of the unanswered questions; whether the party has acted in good faith and with reasonable diligence; the existence of prior orders compelling discovery; and whether a sanction short of default would be an appropriate remedy. (Deyo, 84 Cal.App.3d at 796–797.)

Defendants seek evidentiary sanctions against Plaintiff on the grounds that Plaintiff ‘s counsel has improperly acquired documents from the third-party Hanmi Bank (Hanmi).

Plaintiff first issued a deposition subpoena to Hanmi on May 26, 2022, requesting production of all documents related to the valuation of the real property at issue in this action. (Rios Decl. ¶ 3.) The topics of examination listed concerned any loan for the purchase of the real property, the loan obtained for purchase of D&T Recycling, Inc., and any appraisal or valuation of the real property. (Rios Decl. ¶ 3.) Defendants claim that, during the deposition, Plaintiff’s counsel improperly sought information outside the scope of the topics for examination. (Rios Decl. ¶ 4.)

Plaintiff issued another subpoena to Hanmi on June 14, 2022, requesting the business appraisal report for D&T Recycling, Inc. (Rios Decl. ¶ 5.) The production date listed on the subpoena was June 29, 2022, after the discovery cut-off date of June 18. (Rios Decl. ¶ 5.) On June 16, Plaintiff notified Defendants that the deposition would be taken off-calendar. (Rios Decl. ¶ 7.) On June 17, counsel for Defendants learned from the custodian of Hanmi that Hanmi had met and conferred with Plaintiff’s counsel regarding the second subpoena, and that they agreed to have Plaintiff take the deposition off-calendar in exchange for the production of the “Valuation Analysis Report Related to the Business Value of D&T Recycling, Inc. as of July 31, 2019.” (Rios Decl. ¶ 8.)

The facts presented do not present grounds for the imposition of discovery sanctions against Plaintiff. Defendants have not shown that Plaintiff has failed to comply with any court-ordered discovery; “absent unusual circumstances, [to impose nonmonetary sanctions] there must be a failure to comply with a court order.” (Biles, supra, 124 Cal.App.4th at 1327.) Plaintiff’s purported failure to comply with the statutory procedures under the Discovery Act is not equivalent to a failure to comply with a court order; furthermore, absent any violation of court-ordered discovery, Defendants have also not shown that Plaintiff has willfully disobeyed a court order. Defendants thus have established neither of the two conditions “absolutely prerequisite” to the imposition of discovery sanctions. (Vallbona, supra, 43 Cal.App.4th at 1545.)

Accordingly, the motion for sanctions is denied.