Judge Katherine Chilton, Case 21STLC01024 2022-08-15 Tentative Ruling

MOVING PARTY: Counsel Christopher Delaplane, for Defendants Katherine Kim and KLK Forte Industry, Inc.

Counsel Christopher Delaplane’s Motion to Be Relieved as Counsel as to (1) Defendant Katherine Kim and (2) Defendant KLK Forte Industry, Inc. is GRANTED and the Order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on Defendant has been filed with the court.” (Ibid.)

On February 5, 2021, Plaintiff Romex Textiles, Inc. (“Plaintiff”), filed an action against Defendants Honey Punch America, Inc., dba Honey Belle (“Honey Punch”); KLK Forte Industry, Inc., dba Wild Honey, dba Honey Punch, dba Honey Belle, dba Honey Pop (“KLK”); Honey Punch USA (“Honey USA”); Honey Global IP LLC (“Honey Global”); The Honey Companies LLC (“Honey Comp.”); Katherine Kim aka Katherine Hee Kim aka Kathy Kim aka Katherine Lee aka Hyun Hee Kim, an individual (“Katherine”); Kenny In Hwang aka Kenny Kwon Hwang aka Kenny Hwang, an individual, dba Honey Punch, dba Honey Punch America, dba Style Melody (“Kenny”) (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 – fraud, (8) intentional misrepresentation, and (9) negligent misrepresentation.

On November 16, 2021, Defendants Katherine and KLK filed an Answer denying all allegations in the Complaint.

On July 28, 2022, Defendants Katherine and KLK’s Counsel, Christopher E. Delaplane, filed the instant Motion to Be Relieved as Counsel (the “Motion”). Hearing for the Motion was initially set for November 8, 2022; however, the hearing was advanced to August 15, 2022. (8-1-22 Minute Order, p. 5.) No opposition has been filed.

Code of Civil Procedure § 284 states that “the attorney in an action…may be changed at any time before or after judgment or final determination, as follows: (1) upon the consent of both client and attorney…; (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc. § 284; CRC 3.1362.) The withdrawal request may be denied if it would cause an injustice or undue delay in proceeding; but the court's discretion in this area is one to be exercised reasonably. (See Mandell v. Superior (1977) 67 Cal.App.3d 1, 4; Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.)

In making a motion to be relieved as counsel, the attorney must comply with procedures set forth in Cal. Rules of Court, Rule 3.1362. The motion must be made using mandatory forms:

1. Notice of Motion and Motion to be Relieved as Counsel directed to the client – (MC-051);

2. Declaration “stating in general terms and without compromising the confidentiality of the attorney-client relationship” the reasons that the motion was brought (MC-052);

(Ibid.) The forms must be timely filed and served on all parties who have appeared in the case. (Ibid.) If these documents are served on the client by mail, there must be a declaration stating either that the address where client was served is “the current residence or business address of the client” or “the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.” (Cal. Rules of Court, rule 3.1362(d)(1).)

On July 28, 2022, Counsel Christopher E. Delaplane (“Delaplane”) moved the Court to relieve him as attorney of record for Defendants Kim and KLK. (Mot. (MC-051).) Counsel Delaplane properly filed a Notice of Motion and Motion (MC-051) and Revised Notice of Motion on August 1, 2022, after the hearing for the Motion was advanced to August 15, 2022. Counsel also filed a Declaration in Support of the Motion (MC-052) stating that the Motion is due to “a breakdown in the attorney-client relationship such that Delaplane Law Group, APC and its associated attorneys can no longer effectively represent Katherine Kim and KLK Forte Industry, Inc.” (Delaplane Decl., MC-052, p. 1.) Counsel has served Defendants Kim and KLK at Defendants’ last known address at 106 ½ Judge John Aiso Street, Los Angeles, CA 90012, and has confirmed the address by telephone within the past 30 days. (Ibid. at p. 2.) Counsel has also filed a Proposed Order (MC-053.) All documents were filed with the Court and served on all the parties in the case on July 28, 2022. (Mot. p. 3; Delaplane Decl. p. 3; Proposed Order p. 3.) Initially, the hearing on the motion was set for November 8, 2022; however, on August 1, 2022, the Court on its own motion and in the presence of all parties, advanced the hearing to August 15, 2022. Thus, service is considered timely.

Given that Counsel Delaplane has satisfied all procedural requirements for filing the Motion and because there is no showing that withdrawal would cause injustice or undue delay in the proceedings, the Court GRANTS Counsel Delaplane’s Motion to be Relieved as Counsel for Defendants Katherine Kim and KLK Forte Industry, Inc.

For the foregoing reasons, Counsel Christopher Delaplane’s Motion to Be Relieved as Counsel as to (1) Defendant Katherine Kim and (2) Defendant KLK Forte Industry, Inc. is GRANTED and the Order will be signed at the hearing. “After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case.” (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective “until proof of service of a copy of the signed order on Defendant has been filed with the court.” (Ibid.)

[1] The hearing on the Motion was initially set for November 8, 2022. On August 1, 2022, in the presence of both parties, the Court, on its own motion, advanced the date of the hearing to August 15, 2022. (8-1-22 Minute Order, p. 5.). Although Code of Civil Procedure § 1005(b) requires all moving and supporting papers to be served at least 16 court days before the hearing, with an additional five calendar days in case of service by mail, both parties were present in Court and informed about the new hearing date. (Ibid.)

Plaintiff Romex Textiles’ Motion to Deem Requests for Admission, Set One, Admitted is GRANTED. Plaintiff’s Request for Sanctions is also GRANTED in the amount of $252.87 as to each Defendant.

Plaintiff Romex Textiles’ Motion to Compel Discovery, Form Interrogatories, Set One, is GRANTED. Plaintiff’s Request for Sanctions is also GRANTED in the amount of $252.87 as to each Defendant.

On November 16, 2021, Defendants Katherine and KLK filed an Answer denying all allegations in the Complaint.

On July 15, 2022, Plaintiff filed the instant Motion to Deem Requests for Admission, Set One, Admitted (“Motion – RFAs”) and a request for sanctions in the amount of $252.87 against each defendant, Defendant Kim and Defendant KLK.

Plaintiff also filed the instant Motion to Compel Discovery, Form Interrogatories, Set One, (“Motion – Form Interrogatories) on July 15, 2022, and a request for sanctions in the amount of $252.87 against each defendant, Defendant Kim and Defendant KLK.

Under Code of Civil Procedure 2033.280(b), failure to respond to requests for admission in a timely manner allows the requesting party to “move for an order that…the truth of any matters specified in the requests be deemed admitted” by the party that failed to respond. The requesting party’s motion must be granted by the court, “unless [the court] finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc. § 2033.280(c).) Since such motion is in response to failure to respond, there is no requirement to meet and confer prior to moving to deem the requests for admission admitted. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007), 148 Cal.App.4th 390, 411.). By failing to timely respond, the party to whom the requests are directed waives any objection to the requests, including one based on privilege or work product. (Code Civ. Pro. § 2033.280(a).)

Here, Plaintiff served Requests for Admission, Set One, on Defendants Kim and KLK, on or about June 1, 2022. (Mot. – RFAs, p. 11, Tabibi Decl. ¶ 2; Exs. 1-2.) According to Plaintiff’s counsel, Defendants did not submit any responses by the deadline of July 6, 2022, and as of the date of the instant Motion filed on July 15, 2022. (Tabibi Decl. ¶¶ 2-3.) As a result, Plaintiff filed the instant Motion.

Since Plaintiff has demonstrated that Defendants Kim and KLK have failed to respond to the Requests for Admission by the deadline, the Court deems the truth of the statements in the Request for Admissions admitted.

A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260(a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling response to the discovery. (Code Civ. Proc. § 2030.290(b).) Once compelled to respond, the party waives the right to make any objections, including ones based on privilege or work-product protection. (Code Civ. Proc. § 2030.290(a).) There is no time limit for a motion to compel responses to interrogatories other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., §§ 2024.020(a), 2030.290.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (See Code Civ. Proc. § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.)

Here, Plaintiff served Form Interrogatories, Set One, on Defendants Kim and KLK, on or about June 1, 2022. (Mot. – Form Interr., p. 10, Tabibi Decl. ¶ 2; Exs. 1-2.) According to Plaintiff’s counsel, Defendants did not submit any responses by the deadline of July 6, 2022, and as of the date of the instant Motion filed on July 15, 2022. (Tabibi Decl. ¶¶ 2-3.) As a result, Plaintiff filed the instant Motion.

For the reasons discussed above, Plaintiff’s Motion to Compel Responses to Form Interrogatories, Set One, is GRANTED.

Code of Civil Procedure § 2023.030(a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone because of that conduct. Misuse of discovery includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc. § 2023.010(d)).

Furthermore, courts are obligated to impose monetary sanctions in cases where a “failure to serve a timely response to requests for admission necessitated this motion.” (Ibid.) Sanctions are calculated based on “reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Ibid. § 2023.030(a)).

Here, Defendants Kim and KLK have failed to respond to the Plaintiff’s Requests for Admission. Thus, the Court is obligated to impose monetary sanctions. Defendants have also failed to respond to Plaintiff’s Form Interrogatories, Set One, so the Court may impose sanctions for failure to respond.

For the Motion to Deem Requests for Admission Admitted, Plaintiff requests $252.87 as to each Defendant based on the following calculation: attorney’s fees for half an hour reviewing the file and preparing the Motion at a rate of $475 per hour, and filing fees in the sum of $61.50. Although the Court cannot follow Plaintiff’s calculation, the Court finds Plaintiff’s request of $252.87 as to each Defendant to be reasonable.

For the Motion to Compel Discovery, Form Interrogatories, Plaintiff similarly requests $252.87 as to each Defendant based on the same calculation. The Court finds Plaintiff’s request to be reasonable.

Plaintiff Romex Textiles’ Motion to Deem Requests for Admission, Set One, Admitted is GRANTED. Plaintiff’s Request for Sanctions is also GRANTED in the amount of $252.87 as to each Defendant.

Plaintiff Romex Textiles’ Motion to Compel Discovery, Form Interrogatories, Set One, is GRANTED. Plaintiff’s Request for Sanctions is also GRANTED in the amount of $252.87 as to each Defendant.

Each Defendant is ordered to pay sanctions to Plaintiff’s counsel within 20 days’ notice of this Order.