Judge: Joel R Wohlfeil, Case: 37-2019-00056185-CU-BT-CTL, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 17, 2024

04/19/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Business Tort Motion Hearing (Civil) 37-2019-00056185-CU-BT-CTL YENG MIDAS TOUCH INC VS. TANACHAI EDDIE PHANICHKUL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 03/25/2024

The Motion (ROA # 251) of Defendant Tanachai 'Eddie' Phanichkul ('Defendant' or 'Phanichkul') for an award of cost of proof sanctions against Plaintiff Yeng Midas Touch, Inc. ('Plaintiff' or 'YMT''), is GRANTED IN PART and DENIED IN PART.

The Court awards cost of proof sanctions in the reasonable amount of $135,714.40.

Plaintiff's evidentiary objections (ROA # 262) are OVERRULED IN PART and SUSTAINED IN PART.

The objections are, except as noted, OVERRULED. The objections to Vivoli Decl., Paragraphs 36 and 37, are SUSTAINED.

The appellate decision in this action (Yeng Midas Touch, Inc. v. Phanichkul (Cal. Ct. App., Nov. 29, 2023, No. D080981) 2023 WL 8247625) remanded 'the matter to the trial court for further consideration of the motion for cost of proof sanctions pursuant to Code of Civil Procedure section 2033.420 consistent with the opinions expressed herein.' Id. at *11.

'If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.' Code Civ. Proc. 2033.420(a).

'The court shall make this order unless it finds any of the following: ... ¶ ... (1) An objection to the request was sustained or a response to it was waived under Section 2033.290 .... ¶ ... (2) The admission sought was of no substantial importance .... ¶ ... (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter .... ¶ ... (4) There was other good reason for the failure to admit.' The appellate court concluded that there is 'no evidence, or argument, in the record to support ... a conclusion' there were any reasonable grounds to deny these requests. Yeng Midas Touch, Inc. v. Phanichkul, supra at *10.

'Similarly, the record is devoid of any evidence establishing any other good reason for their denial of the Specified-Accounts RFAs, and YMT did not seriously argue this alternative exception in the trial court or on appeal.' Id. Calendar No.: Event ID:  TENTATIVE RULINGS

3103496 CASE NUMBER: CASE TITLE:  YENG MIDAS TOUCH INC VS. TANACHAI EDDIE PHANICHKUL  37-2019-00056185-CU-BT-CTL Plaintiff's opposition to this Motion argues there was 'good cause' for not admitting the disputed RFA.

However, the appellate opinion has already found good cause lacking for the Specified Account RFAs.

The Court's review of the proceedings leads to the same conclusion.

Plaintiff's opposition to this Motion also states it 'properly denied' some of the Specified Account RFAs.

However, again, the appellate opinion has already addressed and rejected this argument: '... there was essentially no credible evidence or argument to support the trial court's finding that YMT had a reasonable belief that it could prevail on these specific issues, or that other good reason existed for its denial of the Specified-Account RFAs ....' Id. The hourly rates billed by Attorney Vivoli ($595 / hr) and Attorney Saccuzzo ($425 / hr) are reasonable and reflect the rates charged within the legal community given counsels' experience and expertise.

In addition, the detailed declaration of Mr. Vivoli, the declaration of Defendant and the compendium of exhibits consist of sufficient evidence of the total hours incurred proving the truth of matters Plaintiff refused to admit (including the appeal), as well as the hours incurred drafting this Motion, the prior cost of proof motion and attending both hearings. The relative complexity and length of this litigation, as well as the Court's recollection of the trial, also support the claimed total hours incurred and billed by counsel.

On the other hand, admissible evidence has not been submitted supporting the attorney fees incurred by former counsel, Witham Mahoney & Abbott, LLP and Mary Wyman. Paragraph 36 of the Vivoli declaration is inadmissible. This aspect of the requested award is denied.

The Court agrees with the assessment stated at paragraph 32 of Mr. Vivoli's declaration that eighty percent (80%) of the litigation time was spent proving the truth of matters Plaintiff refused to admit. This assessment is supported by the Court's experience during the trial. This will result in a twenty percent (20%) reduction of this aspect of the requested award.

Similarly, the Court agrees with the assessment stated at paragraph 39 of Mr. Vivoli's declaration that seventy percent (70%) of the time incurred on the appeal was spent addressing the issue of the cost of proof sanctions. This will result in a thirty percent (30%) reduction of this aspect of the requested award.

Paragraph 41 of the Vivoli declaration seeks to recover $27,576.35 in costs that have already been taxed via a May 20, 2022 order (ROA # 190). However, no authority is provided for the assertion that section 2033.420 can be used to revive otherwise inappropriate costs. This amount is not awarded.

Paragraph 41 of the Vivoli declaration seeks to recover '$2,800 in unreimbursed travel costs incurred in connection with appearing for depositions that YMT canceled at the last minute.' However, no authority is provided for the assertion that section 2033.420 can be used to compel the payment of this travel expense. This amount is not awarded.

Based on the analysis set forth above, the total award is calculated as follows: $79,444.40: litigation of issues Plaintiff refused to admit ($99,305.50 x .8, Vivoli declaration at ¶ 37); $9,860.00: preparing first cost of proof sanctions motion (Vivoli declaration at ¶ 38); $24,990: appeal (($35,700 x .7, Vivoli declaration at ¶ 39); and $21,420.00: preparing second cost of proof sanctions motion (Vivoli declaration at ¶ 40) $135,714.40 TOTAL Calendar No.: Event ID:  TENTATIVE RULINGS

3103496