Judge: Daniel S. Murphy, Case: 20STCV37713, Date: 2022-09-19 Tentative Ruling

Case Number: 20STCV37713    Hearing Date: September 19, 2022    Dept: 32

BACKGROUND

            This action was initiated on October 1, 2020 when Plaintiff and Cross-Defendant Julie Bae (“Bae”) alleged defamation and intentional and negligent infliction of emotional distress against Defendants and Cross-Complainants Tae Eo (“Eo”) and Tae Wol Shin (“Shin”). Bae’s complaint arises from alleged statements made by Eo and Shin to the Bureau of Real Estate Complaint Intake Unit accusing Bae of deliberate misrepresentation in connection with the sale of a grocery store.

            On December 15, 2020, Eo and Shin (collectively “Cross-Complainants”) filed a cross-complaint against Bae, Choi, DJWT, Inc. (“DJWT”), United Escrow Co. (“United Escrow”), Duke Seo (“Seo”), Je Sung Yoo (“Yoo”), and Eunice Ko (“Ko”), alleging fraud, negligence, and breach of contract. The operative Second Amended Cross-Complaint alleges that Cross-Defendants sold Cross-Complainants a grocery store without the proper permits, which caused the store to be closed down. DJWT has its own cross-complaint against Eo and Shin for breach of contract, interference with contract, and conversion.

            On August3, 2022, the Court granted DJWT’s motion to compel further responses from Tae Wol Shin, ordering Shin to provide responses to FROGs and RFPs within 10 days. To date, Shin has not provided any responses. (Park Decl. ¶¶ 6, 9.) On August 19, 2022, DJWT filed the instant motion for terminating sanctions based on Shin’s violation of the court order.

LEGAL STANDARD

“[I]f a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . .” (Code Civ. Proc., § 2031.310, subd. (i).) In lieu of, or in addition, the court may also impose a monetary sanction. (Ibid.)

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “The 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.” (Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 959.)

DISCUSSION

Terminating sanctions are too drastic at this stage. Sanctions should be incremental and only end with the drastic solution of termination if lesser sanctions prove ineffective. (See Doppes, supra, 174 Cal.App.4th at p. 992.) The remedy should be proportional to the wrongdoing. (Wilson, supra, 163 Cal.App.3d at p. 959.) Here, Shin has only disobeyed one court order, and lesser sanctions have not been imposed. Under these circumstances, the Court is not inclined to immediately impose terminating sanctions. (See Doppes, supra, 174 Cal.App.4th at p. 992 [“The trial court has broad discretion in selecting discovery sanctions”].) The Court would have been inclined to consider issue, evidentiary, or monetary sanctions as an alternative, but DJWT did not request such sanctions.

CONCLUSION

            DJWT’s motion for sanctions is DENIED. Tae Wol Shin is to provide responses pursuant to the Court’s August 3, 2022 order within 10 days.

BACKGROUND

            This action was initiated on October
1, 2020 when Plaintiff and Cross-Defendant Julie Bae (“Bae”) alleged defamation
and intentional and negligent infliction of emotional distress against Defendants
and Cross-Complainants Tae Eo (“Eo”) and Tae Wol Shin (“Shin”). Bae’s complaint
arises from alleged statements made by Eo and Shin to the Bureau of Real Estate
Complaint Intake Unit accusing Bae of deliberate misrepresentation in
connection with the sale of a grocery store.

            On December 15, 2020, Eo and Shin
(collectively “Cross-Complainants”) filed a cross-complaint against Bae, Choi, DJWT,
Inc. (“DJWT”), United Escrow Co. (“United Escrow”), Duke Seo (“Seo”), Je Sung
Yoo (“Yoo”), and Eunice Ko (“Ko”), alleging fraud, negligence, and breach of
contract. The operative Second Amended Cross-Complaint alleges that Cross-Defendants
sold Cross-Complainants a grocery store without the proper permits, which
caused the store to be closed down. DJWT has its own cross-complaint against Eo
and Shin for breach of contract, interference with contract, and conversion.

            On August 22, 2022, DJWT filed the
instant motion to compel the deposition of Tae Eo.

LEGAL STANDARD

“If, after service of a deposition notice,
a party to the action or an officer, director, managing agent, or employee of a
party, or a person designated by an organization that is a party under Section
2025.230, without having served a valid objection under Section 2025.410, fails
to appear for examination, or to proceed with it, or to produce for inspection
any document … described in the deposition notice, the party giving the notice
may move for an order compelling the deponent’s attendance and testimony, and
the production for inspection of any document … described in the deposition
notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

MEET AND CONFER

            A motion to compel deposition must
be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2025.450,
subd. (b)(2).) The Court finds that DJWT has satisfied the meet and confer
requirement. (See Park Decl. ¶ 6.)

DISCUSSION

            On August 3, 2022, DJWT served a
notice of deposition for Eo scheduled for August 18, 2022. (Park Decl. ¶ 3, Ex.
A.) DJWT then texted and emailed a reminder to Eo on August 15, 2022. (Id.,
¶¶ 3-4.) Eo did not respond to either message and did not appear on August 18.
(Id., ¶¶ 5-6.) Eo also ignored DJWT’s request for an alternative date. (Id.,
¶ 6.)

            Eo’s opposition provides no
justification for the failure to appear. First, Eo argues that DJWT’s
cross-complaint is a sham and was filed for an ulterior purpose. (Opp.
4:18-22.) An opposition to a motion to compel discovery is not the place to
challenge the sufficiency of a cross-complaint. This argument has no bearing on
Eo’s discovery obligations.

Eo then argues without substantiation that
DJWT “had always been contesting irrelevant and unnecessary matters,
deliberately waiting for responding party’s death before trial.” (Opp.
5:21-22.) Eo does not articulate how the deposition request is irrelevant or
how DJWT has previously made irrelevant discovery requests. In fact, DJWT’s
prior motion to compel further responses was granted because the requests were
deemed relevant. (See August 3, 2022 Order re Mtn. to Compel.)

Eo further argues that the deposition
notice was “timely defective” because the deposition was scheduled for August
18 even though Eo only received the notice by mail on August 23. (Opp. 6:16-24.)
Eo attempts to rely on an envelope that he claims contained the notice of
deposition. (See Opp., Ex. 1.) However, that envelope contained DJWT’s motion
for terminating sanctions, not the deposition notice. (Park Reply Decl. ¶ 4.)
The proof of service attached to the deposition notice states that it was
mailed and emailed to Eo on August 3, 2022. (Park Decl., Ex. A.)

Lastly, Eo argues that DJWT has not
responded to Eo’s discovery requests. (Opp. 7:10-16.) The cited evidence
(Exhibit 2) does not indicate whether DJWT responded or whether its responses
were adequate. In any case, one party’s failure to respond to discovery does
not absolve the other party of their own discovery obligations.

The lack of substantial justification
warrants sanctions. DJWT reasonably requests $1,661.65. (See Park Decl. ¶ 7.)

CONCLUSION

            DJWT’s motion to compel deposition
is GRANTED. Tae Eo is to appear for deposition and produce requested documents
within 10 days. Sanctions are awarded against Eo in the amount of $1,661.65, to
be paid within 30 days.