Judge Katherine Chilton, Case 20STLC00821 2023-02-22 Tentative Ruling

Judge: Katherine Chilton, Case: 20STLC00821, Date: 2023-02-22 Tentative Ruling

Case Number: 20STLC00821 Hearing Date: February 22, 2023 Dept: 25

PROCEEDINGS: MOTION FOR ORDER IMPOSING TERMINATING, EVIDENTIARY, OR ISSUE SANCTIONS

MOVING PARTY: Plaintiff Design Collection, Inc.

RESP. PARTY: None

MOTION FOR ORDER IMPOSING

TERMINATING, EVIDENTIARY, OR ISSUE SANCTIONS

(CCP §§ 2023.010, 2030.030, 2030.040, et seq.)

TENTATIVE RULING:

Plaintiff Design Collection, Inc.’s Motion for Terminating Sanctions, Striking Defendants’ Answer is GRANTED. The Answer filed by Defendants Kim and KLK on November 17, 2021, is ordered stricken.

Plaintiff may file a request for entry of default.

The Court now sets the matter as follows: Order to Show Cause Re: Entry of Default and Default Judgment/Dismissal is scheduled for APRIL 26, 2023 at 9:30 AM in Department 25 at Spring Street Courthouse. Failure to appear or failure to enter default judgment by the next hearing date may result in the case being dismissed.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) [OK]

[X] Correct Address (CCP §§ 1013, 1013a) [OK]

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) [OK]

OPPOSITION: None filed as of February 16, 2023. [ ] Late [X] None

REPLY: None filed as of February 16, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On January 27, 2020, Plaintiff Design Collection, Inc. (“Plaintiff”) filed an action against Defendants Honey Punch America, Inc., dba Honey Belle (“Honey Punch”); KLK Forte Industry, Inc., dba Wild Honey (“KLK”); Honey Punch USA (“Honey USA”); Katherine Kim aka Katherine Hee Kim aka Kathy Kim aka Katherine Lee aka Hyun Hee Kim (“Kim”) (collectively “Defendants”) for (1) breach of contracts, (2) open account, (3) account stated, (4) goods sold and delivered (quantum valebant), (5) conversion, (6) claim and delivery, (7) promise without intent to perform, (8) intentional misrepresentation, and (9) negligent misrepresentation. On February 8, 2021, Plaintiff filed an Amended Complaint, which added business names for certain Defendants and added the following Defendants: Honey Global IP, LLC (“Honey Global”), The Honey Companies, LLC (“Honey Co.”), and Kenny In Hwang, aka Kenny Kwon Hwang, aka Kenny Hwang, dba Honey Punch, dba Honey Punch America, dba Style Melody (“Kenny”).

On November 17, 2021, Defendants Kim and KLK filed a joint Answer to the First Amended Complaint.

On January 6, 2022, the Court dismissed the case without prejudice because Plaintiff did not appear at the hearing. (1-6-22 Minute Order.) The dismissal was set aside and vacated on May 5, 2022, based on Plaintiff’s Motion to Set Aside/Vacate Dismissal. (5-5-22 Minute Order.)

On May 20, 2022, pursuant to Plaintiff’s request, default was entered against Defendants Honey Punch, Honey Global, and Honey Co. (5-20-22 Request.)

On July 5, 2022, Counsel Christopher Delaplane filed a Motion to Be Relieved as Counsel as to Defendant KLK. Counsel’s Motion was granted on September 26, 2022. (9-26-22 Minute Order.)

On July 19, 2022, pursuant to Plaintiff’s request, the Court dismissed Defendant Kenny without prejudice. (7-18-22 Request for Dismissal.)

On August 22, 2022, the Court granted Plaintiff’s Motion to Deem Requests for Admission, Set One, Admitted, and request for sanctions in the amount of $252.87, as to each Defendant, Kim and KLK. (8-22-22 Minute Order.) The Court also granted Plaintiff’s Motion to Compel Discovery – Form Interrogatories, Set One, and request for sanctions in the amount of $252.87, as to each Defendant, Kim and KLK. (Ibid.)

On November 16, 2022, Plaintiff filed a Motion for Order Imposing Terminating, Evidentiary, or Issue Sanctions, and Monetary Sanctions against Defendants Kim and KLK (“Motion”). It appears that the same Motion was also filed on November 18, 2022. No opposition has been filed.

On December 14, 2022, Plaintiff filed an Ex Parte Application for an Order Shortening Time for the Motion and/or Continuing Trial. The Court denied Plaintiff’s Ex Parte Application; however, it continued the trial date to March 15, 2023. (12-16-22 Minute Order.)

II. Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010(d), (g), 2023.030; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)

Code of Civil Procedure § 2030.040 requires that “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” Furthermore, the notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought. (Code of Civ. Proc. § 2030.040.)

Monetary sanctions may be imposed “ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct…unless [the Court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civ. Proc. § 2030.030(a).)

Issue sanctions may be imposed “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. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (Code of Civ. Proc. § 2030.030(b).)

Evidence sanctions may be imposed “by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code of Civ. Proc. § 2030.030(c).)

In more extreme cases, the Court may also impose terminating sanctions by “striking out the pleadings or parts of the pleadings,” “staying further proceedings,” “dismissing the action, or any part of the action,” or “rending a judgment by default” against the party misusing the discovery process. (Code of Civ. Proc. § 2030.030(d).) The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) “Although in extreme cases a court has the authority to order a terminating sanction as a first measure [citations], a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605.)

III. Discussion

Plaintiff moves for an order imposing the following sanctions on Defendants Kim and KLK:

(A) Terminating sanctions in the form of striking Defendants’ Answer and entering default judgment against Defendants.

Alternatively,

(B) Issue sanctions in the form of deeming the following statements admitted:

a. Defendants Kim and KLK are joint venturers with each other and with all other Defendants;

b. Defendants Kim and KLK were parties and/or beneficiaries to all contracts engaged in by each other and by all corporate Defendants;

c. Defendants Kim and KLK are the alter egos of each other and all other corporate Defendants;

d. Defendants Kim and KLK controlled the property of each other and all other corporate Defendants;

e. Defendant Kim used Defendant KLK and all other corporate defendants as mere shells for the conducting of Defendant Kim’s personal business;

f. Defendant Kim and Defendant KLK owe Plaintiff the sum of $16,168.07 prayed for in Plaintiff’s Complaint.

Alternatively,

a. Defendants Kim and KLK were not joint venturers with each other and with all other Defendants;

b. Defendants Kim and KLK were not parties and/or beneficiaries to all contracts engaged in by each other and/or any and all of the corporate Defendants;

c. Defendants Kim and KLK were not the alter egos of each other any and all corporate Defendants;

d. Defendants Kim and KLK did not control the property of each other and all other corporate Defendants;

e. Defendant Kim did not use Defendant KLK and/or any and all other corporate defendants as mere shells for conducting of Defendant Kim’s personal business;

f. Defendants Kim and KLK do not owe Plaintiff the sum of $16,168.07 prayed for in Plaintiff’s Complaint.

(Mot. pp. 2-3.) Plaintiff states that Defendants have not provided responses to Form Interrogatories, Set One, and subsequently, failed to adhere to the Court’s order to produce responses to these Interrogatories and pay sanctions for two discovery motions. (Ibid. at p. 3.)

On or about June 1, 2022, Plaintiff propounded written discovery requests on Defendants Kim and KLK and scheduled a deposition. (Ibid. at p. 5, Tabibi Decl. ¶ 3, Ex. 1.) Defendants did not provide any responses, so on July 26, 2022, Plaintiff moved the court to compel Defendants to respond to the discovery. (Mot. p. 6; Tabibi Decl. ¶¶ 3-4.) On August 22, 2022, the Court granted Plaintiff’s Motion to Compel Responses to Form Interrogatories and Deem Requests Admitted and ordered Defendants to pay sanctions in the amount of $252.87, as to each Defendant, for each Motion. (Mot. p. 6; Tabibi Decl. ¶ 4, Ex. 2; 8-22-22 Minute Order.) As of the date of the instant Motion, Defendants have failed to respond to the discovery or pay the sanctions. (Mot. p. 6; Tabibi Decl. ¶ 5.)

Plaintiff also states that Defendants have willingly violated the Court’s orders, which justifies sanctions. (Mot. p. 6.)

Furthermore, Plaintiff argues that several of the issues presented in the discovery requests are central to the case and the question of liability. (Ibid. at p. 7.) Therefore, “[i]t is unjust that Plaintiff should be forced in any manner to litigate such issues of liability under blinded conditions of having entire lack of knowledge of the content and scope of potential evidence which Defendants may be concealing through their refusal to comply with discovery.” (Ibid.) Based on “principals of justice and equity,” sanctions should be imposed so that Defendants are “precluded from putting on any undisclosed defenses.” (Ibid.) Defendants’ failure to produce discovery responses and pay sanctions is “detrimental and/or prejudicial to Plaintiff” and is “believed to have been committed in bad faith and in deliberate effort to thwart lawful discovery.” (Ibid. at p. 8.) It “represents an evasion and disobeying of this Court’s orders pursuant to Code of Civil Procedure § 2025.220 and an abuse/misuse of the discovery process under Code of Civil Procedure §§ 2023.010(d) and (g),” thus, warranting the imposition of sanctions. (Ibid. at pp. 8-9.)

The Court makes the following findings. On November 17, 2021, Defendants Kim and KLK filed a joint Answer to the Complaint. On August 22, 2022, the Court granted Plaintiff’s Motion to Deem Requests for Admission, Set One, Admitted, and request for sanctions in the amount of $252.87 as to each Defendant, Kim and KLK. (8-22-22 Minute Order.) The Court also granted Plaintiff’s Motion to Compel Discovery – Form Interrogatories, Set One, and request for sanctions in the amount of $252.87 as to each Defendant, Kim and KLK. (Ibid.) Plaintiff does not provide any evidence that it scheduled a date to depose Defendants.

On September 26, 2022, Counsel Christopher Delaplane was relieved from representing Defendant KLK. (9-26-22 Order; 9-26-22 Minute Order.)

As of the date of the instant Motion, Defendants have not provided responses to the Form Interrogatories or paid the sanctions related to the Motion to Compel or Motion to Deem Requests for Admission Admitted.

Thus, since filing an Answer, Defendants Kim and KLK have failed to participate in the litigation and have not responded to discovery requests. Defendants have also failed to oppose the instant Motion. It appears that Defendants have willfully abandoned this litigation. Although terminating sanctions are a harsh penalty, the history in the instant case demonstrates that Defendants are unwilling to comply with the Plaintiff’s requests or the Court’s orders and thus, lesser sanctions have not been effective in producing compliance. Defendants have not opposed the instant Motion to argue that their failure to engage in discovery efforts has been due to inability to comply, as opposed to bad faith.

For these reasons, the Court finds an order striking Defendants’ Answer to be appropriate. Defendants Kim and KLK’s Answer is HEREBY STRICKEN. Plaintiff may file a request for the entry of default.

IV. Conclusion & Order

For the foregoing reasons,

Plaintiff Design Collection, Inc.’s Motion for Terminating Sanctions, Striking Defendants’ Answer is GRANTED. The Answer filed by Defendants Kim and KLK on November 17, 2021, is ordered stricken.

Plaintiff may file a request for entry of default.

Moving party is ordered to give notice.