Judge: Jill Feeney, Case: 21STCV35370, Date: 2023-07-10 Tentative Ruling
Case Number: 21STCV35370 Hearing Date: July 10, 2023 Dept: 78
Superior Court of California
County of Los Angeles
Department 78
BOW TIE REALTY & INVESTMENT, INC.,
Plaintiff;
vs.
CHUNG SOONKYO, LLC, et al.,
Defendants. Case No: 21STCV35370
Hearing Date: July 10, 2023
[TENTATIVE] RULING RE:
DEFENDANTS CHUNG SOONKYO, LLC, COMET HYESUNG, LLC, AND CAROLINE S. LEE’S MOTION FOR PROTECTIVE ORDER; DEFENDANTS CHUNG SOONKYO, LLC, COMET HYESUNG, LLC, AND CAROLINE S. LEE’S MOTION FOR RECONSIDERATION.
Defendants Chung Soonkyo, LLC, Comet Hyesung, LLC, and Caroline S. Lee’s Motion for Protective Order is DENIED.
Defendants Chung Soonkyo, LLC, Comet Hyesung, LLC, and Caroline S. Lee’s Motion for Reconsideration is DENIED.
Moving party to provide notice and to file proof of service of such notice within five days after the date of this order.
FACTUAL BACKGROUND
This is an action for declaratory relief and fraudulent transfer. The Complaint alleges as follows.
On September 16, 2019, Plaintiff Bow Tie Realty & Investment, Inc. (“Plaintiff”) was awarded judgment against Defendant Caroline S. Lee (“Lee”) in the amount of $672,892.19 in Caroline S. Lee v. Jong Han Lee, et al., Case No. BC697147 (“First Lawsuit”). That judgment included an award based on a claim of fraud arising out of Lee’s fraudulent inducement to enter a contract. (Complaint ¶ 7.)
A second lawsuit between the parties also resulted in a judgment in favor of Plaintiff on June 21, 2021, in the amount of $46,903.69. That judgment was rendered in Bow Tie Realty & Investment v. Caroline Lee, et al., Case No. 20STCV14403 (“Second Lawsuit”). Plaintiff alleges that this Second Lawsuit was based on claimed fraudulent transfers by Caroline S. Lee. (Complaint ¶ 8.)
A supersedeas bond was posted by the Defendant Lee in the First Lawsuit. (Complaint ¶ 8.) This resulted in the Second Lawsuit becoming moot, and therefore Plaintiff dismissed that suit, without prejudice, although Plaintiff has a money judgment from the Second Lawsuit which remains. (Complaint ¶ 8.)
In attempting to enforce the Second Judgment (for $46,903.69) Plaintiff learned that Caroline S. Lee has engaged in other fraudulent transfers. One such transfer is a July 9, 2020, transfer to Defendant Chung Soonkyo, LLC, a limited liability company that Lee owns. (Complaint ¶ 9.)
PROCEDURAL HISTORY
On September 27, 2021, Plaintiff filed the Complaint.
On October 6, 2021, Plaintiff filed three Notices of Lis Pendens.
On November 4, 2021, Defendants filed a Motion to Expunge Lis Pendens.
On February 2, 2022, the Court denied Defendants’ Motion to Expunge Lis Pendens and granted Plaintiff’s Request for Monetary Sanctions against Plaintiff.
On January 17, 2023, Plaintiff filed two Motions to Compel Discovery and a Motion to Deem Requests for Admission Admitted. All three motions were granted.
On February 21, 2023, Defendants filed a Motion for Protective Order. That Motion was denied.
On March 6, 2023, Defendants filed the instant Motion for Reconsideration.
On March 24, 2023, Defendants filed the instant Motion for Protective Order.
On June 26, 2023, Plaintiff filed an Opposition to each motion.
DISCUSSION
I. MOTION FOR PROTECTIVE ORDER
Defendants move for a protective order granting Defendants a time extension to respond to all discovery requests and mandating that Plaintiff “may make written request of defendants, for prior advisement to the Court from Ms. Lee’s licensed physician of those medical limitations that should accompany responses to written discovery requests, prior to Ms. Lee’s being scheduled for responding to any of Plaintiff’s written discovery requests, including but not limited to requests for admission.”
Defendants’ Motion for Protective Order is identical to the Motion for Protective Order Defendants filed on February 21, 2023. In denying that motion, the Court found that the motion was moot as Plaintiff’s requests for admission had already been deemed admitted, and that the protective order was far too broad to be enforceable.
Defendants improperly file the same motion again and present no new arguments or facts.
Accordingly, Defendants’ Motion for Protective Order is DENIED.
II. MOTION FOR RECONSIDERATION
Next, Defendants move for reconsideration of this Court’s February 21, 2023, Order granting Plaintiff’s Request to Deem Requests for Admission Admitted.
“When an application for an order has been made to a judge, or to a court, and refused in whole . . . any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (Code Civ. Proc., § 1008, subd., (a) (“Section 1008”).) “When a motion is granted or denied, unless the court otherwise orders, notice of the court’s decision or order shall be given by the prevailing party to all other parties or their attorneys, in the manner provided in this chapter, unless notice is waived by all parties in open court and is entered in the minutes.” (Code Civ. Proc., § 1019.5, subd. (a).)
Here, Defendants argue that the Court should reconsider its order as Defendants’ Counsel was incapacitated at the time of the hearing and was unable to argue the matter.
As an initial matter, Defendants’ motion is untimely. Defendants were electronically served with the notice of ruling on February 21, 2023. Accordingly, a Motion for Reconsideration would have been timely filed by Friday, March 3, 2023. The instant motion is untimely.
Addressing the merits of Defendants’ argument, Defendants note that “[a]pparently opposing counsel and the court were unaware of the impaired health condition of defense counsel because nothing in the minutes reveals any recognition of defense counsel’s health status. Defendants had filed a declaration and motion for protective order but these were not made part of the February 21, 2023, proceedings.”
The record indicates that Defendants did file a declaration detailing Defendants’ Counsel’s inability to attend that hearing on the day of the hearing; as it was filed on that same day, it is extremely unlikely the declaration was filed before the 8:30 am hearing, and even more unlikely that it appeared in the Court’s docket prior to the hearing.
Defendants contend that the Court’s failure to consider Defense Counsel’s inability to appear at that hearing constitutes a new fact that warrants reconsideration.
Defendants’ argument is unavailing.
“[T]he party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457 [emphasis added].) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)
Here, Defendants contend that Defense Counsel was unable to attend the hearing because of an undisclosed injury, for which Defense Counsel sought medical care on February 15, 2023. (Karpeles Decl. ¶ 7.) Defendants proffer no explanation for why the Court was not informed of Counsel’s inability to attend until after the hearing.
Moreover, Defendants offer no explanation for why an Opposition was not filed addressing the motion on the merits, or what argument Defense Counsel would have made at hearing, had he attended.
The Court sees no reason that Defense Counsel’s attendance at the hearing would have affected the outcome of a Motion to Deem Requests for Admission Admitted where Defendants do not assert that they served RFA responses whatsoever, and indeed concede that they did not in their Motion for Protective Order.
The Court finds that the instant motion is both untimely and without merit. Accordingly, Defendants’ Motion for Reconsideration is DENIED.
DATED: July 10, 2023
___________________________
Hon. Jill Feeney
Judge of the Superior Court
