Judge: Gregory Keosian, Case: 21STCV23782, Date: 2022-10-31 Tentative Ruling

Case Number: 21STCV23782    Hearing Date: October 31, 2022    Dept: 61

Cross-Defendants Mi In Fashion, Eli Kim, Tommy Lee, Eunice Kim, and Young Mi Lee’s Motion for Sanctions against Cross-Complainant ENK Apparel, Inc. is GRANTED in part, and monetary sanctions in the amount of $4,561.65 are awarded against Defendant and Cross-Complainant Enk Apparel, Inc. and its counsel. 

I.                   Motion for SANCTIONS

Misuse of the discovery process may result in the imposition of a variety of sanctions. These include payment of costs, sanctions barring the introduction of certain evidence, sanctions deeming that certain issues are determined against the offending party, and sanctions terminating an action in favor of the aggrieved party. Misuse of the discovery process includes failing to respond or submit to authorized discovery, providing evasive discovery responses, disobeying a court order to provide discovery, unsuccessfully making or opposing discovery motions without substantial justification, and failing to meet and confer in good faith to resolve a discovery dispute when required by statute to do so. The court may impose sanctions to the extent authorized by the chapter governing any particular discovery method or any other provision of this title.

The trial court has broad discretion to impose sanctions for violations of court orders, including those intended to compel compliance with a party's disclosure and discovery obligations, subject to reversal only for arbitrary or capricious action.

(In re Marriage of Eustice (2015) 242 Cal.App.4th 1291, 1308–1309, internal quotation marks, citations, and alterations omitted.)

Cross-Defendants Mi In Fashion, Tommy Lee, Eli Kim, Eustice Kim, and Young Mi Lee move for monetary, issue, evidentiary, and terminating sanctions against Defendant Enk Apparel based on Defendant’s filing of 20 motions to compel and deem admitted against them on July 27, 2022, which were withdrawn on September 9, 2022, after Cross-Defendants filed an opposition.

Per Defendant’s discovery motions, Cross-Defendants were each personally served on May 12, 2022, and the proofs of service filed on that day indicate that each was served at the same address on East Adams Boulevard in Los Angeles. Discovery was thereafter propounded upon Cross-Defendants on June 6, 2022, to which they failed to respond.

Cross-Defendants filed an opposition to the motions on September 7, 2022, denying that they had been served with a summons and complaint on the dates identified in the proof of service, and stating they had only appeared in this motion on June 8, 2022, when they had jointly filed a motion to strike against Defendant’s cross-complaint. Counsel for Cross-Defendants, Chan Yong Jeong, states that although he was counsel for Mi In Fashion when the discovery was sent, he was not served with the discovery at issue, despite statutory requirements that discovery requests be served not only upon the party to whom they are directed, but upon all parties who have appeared in the litigation. (Code Civ. Proc. §§ 2030.080, subd. (b); 2031.040; 2033.070.) After these arguments were presented in the opposition of September 7, 2022, Defendant withdrew the motions on September 9, 2022, against Cross-Defendants’ objections.

Thus Cross-Defendants argue that they were made to incur substantial fees — $21,000.00 for 42 hours of attorney work were claimed in opposition to the motions to compel (9/7/22 Jeong Decl. ¶ 25) — based on false proofs of service and mis-served discovery, delivered upon them while they had not yet appeared in this action, and without the knowledge of the attorney who represented the only of the cross-defendants to have actually appeared in this case. (Motion at pp. 5–9.)

Defendant in opposition stands by the prior service, but does little to rebut the evidence or argument that Cross-Defendants present. Defendant contends that all Cross-Defendants were personally served, as stated in the proofs of service filed on May 12, 2022. (Lee Decl. ¶ 3.) Defendant contends that it re-served the same discovery requests on the same date that it withdrew its prior motions, out of consideration for the arguments that Cross-Defendants raised in their opposition. (Lee Decl. ¶ 9.) Defendant further argues that this court cannot grant sanctions with respect to the discovery motions at issue, as they have been withdrawn, and have not been denied. (Opposition at p. 6.) Finally, Defendant argues that Cross-Defendants waived their arguments with respect to lack of service by failing to file a motion to quash. (Opposition at pp. 6–7.)

Defendant’s procedural objections to this motion are unpersuasive. It argues that no sanctions may be awarded since the motions were withdrawn. But misuse of discovery encompasses making a motion “unsuccessfully and without substantial justification,” not merely when a motion is denied. (Opposition at p. 6.) Defendant also argues that Cross-Defendants waived any argument as to personal jurisdiction by failing to make the argument in a motion to quash. (Opposition at pp. 6–7.) But this argument too is without merit, since Cross-Defendants’ position is not based on this court’s lack of jurisdiction, but upon the untimely service of discovery requests.

There is thus some merit to Cross-Defendants’ position in this motion. The Discovery Act describes, among the types of conduct constituting misuse of the discovery process, “[m]aking or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” (Code Civ. Proc. § 2023.010, subd. (h).) There can be little question that Defendant’s motions to compel and deem admitted were unsuccessful, as they were withdrawn after Cross-Defendants filed their opposition, and Defendant obtained no relief therefrom. The motions were also maintained without substantial justification, as Defendant was made aware within a day of Cross-Defendants’ objections based on lack of service to Mi in Fashion’s counsel, who by the time of the motions’ filing, represented all Cross-Defendants. (9/7/22 Jeong Decl. Exh. 8; CRC Rule 1.21, subd. (a) [requiring service upon a party’s attorney when that party is represented].) While it is unclear whether Defendant was made aware of Cross-Defendants’ objections based on the failure to personally serve the summons, Defendant in opposition to this motion makes no response to Cross-Defendants’ specific and persuasive declarations that no such service was made upon them. (Young Mi Lee Decl. ¶ 7; Henry Yoo Decl. ¶ 7; Eli Kim Decl. ¶ 10; Eunice Kim Decl. ¶ 12.)

Of the sanctions that Cross-Defendants seek in their motion — issue, evidentiary, terminating, and monetary — monetary sanctions are the most appropriate here. Defendant should have known to serve the discovery at issue upon Cross-Defendants’ counsel, rather than serving the discovery in a manner calculated to catch the parties flat-footed. A more drastic sanction, at the same time, would be inappropriate. Although Cross-Defendants have shown that they were not personally served with the summons and cross-complaint, there is no indication that Defendant knew about this failure, or that the proofs of service were drafted according to Defendant’s design.

Cross-Defendants seek $31,800.00 in monetary sanctions, representing 63 hours of attorney work at the rate of $500 per hour plus $300 in filing fees, including 17 hours reviewing the motions to compel, 12 hours investigating the proofs of service, 22 hours drafting the opposition materials therefore, and nine hours preparing and defending the present motion. (Jeong Decl. ¶ 25.)

This amount is excessive. It was unreasonable to spend 17 hours reviewing 20 motions to compel with effectively identical fact patterns, and to expend 22 hours drafting opposition materials for such a simple subject matter. The amount sought is therefore unreasonable on its own terms. What’s more, although Defendant was on notice of Cross-Defendants’ objections based on the failure to serve the discovery upon Mi In Fashion’s attorney, it appears that Cross-Defendants failed to apprise Defendant of their objections based on the service of summons until they filed their oppositions — i.e. until they had incurred most of the fees they now seek in this motion.

Accordingly, of the monetary sanctions that Cross-Defendants seek here, it is entitled to $4,561.65, representing nine hours of work preparing and defending the instant motion, and paying the filing fee therefore.

The motion for sanctions is GRANTED in part, and monetary sanctions in the amount of $4,561.65 are awarded against Defendant and Cross-Complainant Enk Apparel, Inc. and its counsel.