Judge: Curtis A. Kin, Case: 21STCV40805, Date: 2023-03-23 Tentative Ruling
Case Number: 21STCV40805 Hearing Date: March 23, 2023 Dept: 72
MOTIONS(3) FOR ISSUE
AND MONETARY SANCTIONS (3)
Date: 3/23/23
(8:30 AM)
Case: 12 Albany, LLC v. OG Farmz,
Inc. et al. (21STCV40805)
TENTATIVE
RULING:
Plaintiff 12 Albany, LLC’s UNOPPOSED Motion for Issue and
Monetary Sanctions against Defendant Chong
Sang Eric Tak is GRANTED IN PART.
Plaintiff 12 Albany, LLC’s UNOPPOSED Motion for Issue and
Monetary Sanctions against Defendant OG
Farmz, Inc. is GRANTED IN PART.
Plaintiff 12 Albany, LLC’s UNOPPOSED Motion for Issue and
Monetary Sanctions against Defendant The
One1 Entertainment, Inc. is GRANTED IN PART.
Plaintiff 12 Albany, LLC moves for issue sanctions against
defendants Chong Sang Eric Tak, OG Farmz, Inc., and The One1 Entertainment,
Inc. based on the violation of a court order compelling responses to discovery.
On December 13, 2022, the Court granted plaintiff’s motions
to compel responses from defendants to Form Interrogatories-General, Set One.
(Chung Decls. ¶¶ 4 & Exs. B.) Defendants did not file any opposition to the
motions. (12/13/22 Minute Order at 1.) The Court ordered defendants to serve
written verified responses, without objection, to their respective Form
Interrogatories-General, Set One within 15 days. (Id.) Defendants
did not attend the hearing on December 13, 2022. However, plaintiff served
notice of the ruling on defendants. (Id.) The responses were due on
December 30, 2022. (See CCP § 1010.6(a)(3)(B) [two court days added with
email service of notice].) On January 6, 2023, having received no responses,
plaintiff attempted to meet and confer with defendants concerning the missing
responses. (Chung Decls. ¶¶ 6 & Ex. 6.)
Despite service of the notice of ruling and plaintiff’s
attempt to meet and confer, defendants have not served responses to plaintiff’s
discovery ordered by the Court on December 13, 2022. (Chung Decls. ¶¶ 7.)
After the Court issues an order compelling a response to
interrogatories, if the party fails to comply with the order, the Court may
make orders that are just, including the imposition of an issue sanction. (CCP
§ 2030.290(c).) “The court may impose an issue sanction ordering that
designated facts shall be taken as established in the action in accordance with
the claim of the party adversely affected by the misuse of the discovery
process.” (CCP § 2023.030(b).)
A court may impose issue sanctions that are “properly
tailored to the specific harm caused by such withheld discovery.” (Vallbona
v. Springer (1996) 43 Cal.App.4th 1525, 1548.) “Only two facts are
absolutely prerequisite to imposition of [a discovery] sanction: (1) there must
be a failure to comply…and (2) the failure must be wilful [citation].” (Calvert
Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d 901, 904.)
Here, the Court finds that, under the circumstances,
defendants’ failure to respond to the discovery as ordered by the Court was
willful. Simply put, defendants failed to respond to plaintiff’s form
interrogatories initially, failed to oppose plaintiff’s motions to compel
responses to such interrogatories, and further failed to produce responses to the
subject interrogatories after having been served notice of the Court’s order to
respond and after plaintiff attempted to meet and confer regarding the
interrogatories.
Accordingly, the Court finds that issue sanctions
appropriately tailored to the violation at issue are warranted. Plaintiff’s
requested issue sanctions correspond to the contents of Form Interrogatory Nos.
15.1 and 50.1, which were served on defendants, and accordingly are tailored to
the harm caused by defendants’ failure to respond. (Chung Decls. ¶ 2 & Exs.
A.)
As set forth in plaintiff’s Memorandum of Points and
Authorities, the Court designates the following facts as established in the
instant action:
1.
The Loan and Security Agreement (Exhibit A to
Complaint) is a true and correct copy of an agreement entered into between
plaintiff 12 Albany, LLC, on the one hand, and defendants Chong Sang Eric Tak
and OG Farmz, Inc., on the other hand.
2.
The Term Promissory Note (Exhibit B to Complaint) is a
true and correct copy of an agreement entered into between plaintiff 12 Albany,
LLC, on the one hand, and defendants Chong Sang Eric Tak and OG Farmz, Inc., on
the other hand.
3.
The Revolving Promissory Note (Exhibit C to Complaint)
is a true and correct copy of an agreement entered into between 12 Albany, LLC,
on the one hand, and defendants Chong Sang Eric Tak and OG Farmz, Inc., on the
other hand.
4.
There are no parts of the Loan and Security Agreement
(Exhibit A to Complaint), Term Promissory Note (Exhibit B to Complaint) and
Revolving Promissory Note (Exhibit C to Complaint) (collectively, “Agreements”)
that are not in writing.
5.
There are no documents that evidence any parts of the
Agreements that are not in writing.
6.
There are no documents
that are part of any modification to the Agreements.
7.
There are no
modifications to the Agreements that are not in writing.
8.
There are no documents
that evidence any modifications to the Agreements that are not in writing.
9.
Defendants Chong Sang Eric Tak and OG Farmz, Inc.
breached the Agreements by failing and refusing to pay the principal balance of
$340,000 when due.
10.
Defendants Chong Sang Eric Tak and OG Farmz, Inc.’s
performance under the Agreements were not excused.
11.
The Agreements were not terminated by mutual agreement,
release, accord and satisfaction, nor novation.
12.
The Agreements are fully enforceable.
13.
The Agreements are not ambiguous.
14.
Defendants Chong Sang Eric Tak, OG
Farmz, Inc., and The One1 Entertainment, Inc. do not raise any special defense
in this Action.
15.
Defendants Chong Sang Eric Tak, OG
Farmz, Inc., and The One1 Entertainment, Inc. do not raise any affirmative
defense in this action.
16.
There are no facts to support any
denial or special or affirmative defense in this action.
17.
There are no documents or other
tangible things to support any denial or special or affirmative defense in this
action.
With respect to the
first, second, third, ninth, and tenth issue sanctions listed above, plaintiff
seeks to designate the facts set forth therein with respect to defendant The
One1 Entertainment, Inc. Form Interrogatory No. 50.1, the interrogatory which
corresponds to these sanctions, pertains to “each agreement alleged in the
pleadings.” (Chung Decls. ¶ 2 & Ex. A.) However, there is no agreement
alleged between plaintiff and The One1 Entertainment, Inc. The Agreements are
between plaintiff and defendants OG Farmz, Inc. and Tak. (Compl. ¶¶
10-12.) The first cause of action asserting breach of the Agreements is
asserted against OG Farmz, Inc. and Tak, not The One1 Entertainment, Inc.
(Compl. at 13:26.) Accordingly, the Court imposes the first, second, third,
ninth, and tenth issue sanctions listed above against OG Farmz, Inc. and Tak
only.
Plaintiff also seeks
to establish that all defendants do not deny any material allegation contained
in the Complaint. However, each defendant filed an Answer in which such defendant
generally denied each and every allegation of the Complaint. (See 2/4/22
Tak Answer; 2/28/22 The One1 Answer; 2/7/22 The One1 Answer.) The three Answers
remain operative. Accordingly, the requested issue sanction would conflict with
the general denial contained in the Answers and would constitute an overbroad
remedy in view of the conduct to be sanctioned.
The Court therefore declines to impose any issue sanction establishing
that defendants do not deny any material allegation in the Complaint.
For the foregoing
reasons, the motions are GRANTED IN PART. Issue sanctions are imposed as set
forth above.
For continuing to
fail to comply with discovery obligations and court orders, thereby causing
plaintiff to file these three motions, the Court also imposes monetary
sanctions on each defendant as
follows:
·
$661.67 against defendant Chong Sang Eric Tak
·
$661.67 against defendant OG Farmz, Inc.
·
$661.67 against defendant The One1 Entertainment,
Inc.
The monetary
sanctions are based on 1.5 hours of attorney Jay J. Chung’s time preparing all
three motions (instead of 1 hour for each motion) at an hourly rate of $550, 3
hours for the time associates spent in preparing the motion (instead of 2 hours
for each motion) at an hourly rate of $295, and 0.5 hours of attorney Chung’s
time preparing a notice of non-opposition and preparing for and attending the
hearing for all three motions (instead of 1 hours per motion for preparing a
reply and preparing for and attending the hearing) at an hourly rate of $550.
The total sanctions are allocated equally among each of the three defendants.
Monetary sanctions shall be paid to counsel for plaintiff 12
Albany, LLC within 30 days hereof.