Judge: Katherine Chilton, Case: 21STLC01024, Date: 2022-12-19 Tentative Ruling
Case Number: 21STLC01024 Hearing Date: December 19, 2022 Dept: 25
PROCEEDINGS: MOTION
FOR ORDER IMPOSING TERMINATING, EVIDENTIARY, OR ISSUE SANCTIONS
MOVING PARTY: Plaintiff
Romex Textiles, 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 Romex Textiles’ Motion for Terminating Sanctions,
Striking Defendants’ Answer is GRANTED.
The Answer filed by Defendants Kim
and KLK on November 16, 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 March 16, 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 December 14, 2022. [ ] Late [X] None
REPLY: None
filed as of December 14, 2022. [ ] Late [X] None
ANALYSIS:
I.
Background
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 Companies”); Katherine Kim aka Katherine Hee Kim aka
Kathy Kim aka Katherine Lee aka Hyun Hee Kim, an individual (“Kim”); 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 Kim
and KLK filed an Answer to the Complaint.
On August 1, 2022, the Court
granted Plaintiff’s Motion to Compel Depositions of Defendants KLK and Kim but
denied Plaintiff’s Demand for Production of Documents and Things at Said
Deposition. (8-1-22 Minute Order.) The Court also granted Plaintiff’s request
for sanctions in the amount of $252.87, to be paid within thirty (30) days’
notice of the Court order. (Ibid.)
On August 2, 2022, pursuant to
Plaintiff’s request, the Court dismissed Defendant Kenny from the case without
prejudice. (8-2-22 Request for
Dismissal.)
On August 3, 2022, based on
Plaintiff’s request, the Court entered default against the following
Defendants: Honey Punch, Honey USA, Honey Global, and Honey Companies. (8-3-22 Request for Default.)
On August 15, 2022, the Court granted
Counsel Christopher Delaplane’s Motion to be Relived as Counsel as to
Defendants Kim and KLK and signed the Order on the same day. (8-15-22
Order; 8-15-22 Minute Order.)
On the same day, the Court granted
Plaintiff’s Motion to Deem Requests for Admission, Set One, Admitted, as well Plaintiff’s
request for sanctions in the amount of $252.87 as to each Defendant, Kim and
KLK. (Ibid.) The Court also granted Plaintiff’s Motion to
Compel Form Interrogatories, Set One, and Plaintiff’s request for sanctions in
the amount of $252.87 as to each Defendant, Kim and KLK. (Ibid.)
On November 9, 2022, Plaintiff
filed the instant Motion for Terminating, Evidentiary, or Issue Sanctions (“Motion”). No opposition has been filed.
On November 14, 2022, the Court
denied Plaintiff’s Ex Parte Application for Terminating or Issue Sanctions, in
the Alterative, for Order Shortening Time, and/or Continuance of Trial
Date. (11-14-22 Minute Order.) The Court, on its own motion, continued the
trial date to January 18, 2023. (Ibid.)
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 KLK and Kim:
(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 $22,259.00 prayed for in Plaintiff’s Complaint.
Alternatively,
(C) Evidence
sanctions restricting Defendants from presenting evidence that:
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
$22,259.00 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. (Ibid. at p. 3.) Defendants have also violated the Court’s
order to appear at the deposition set by Plaintiff. (Ibid. at p. 2.)
On or about
June 1, 2022, Plaintiff propounded written discovery requests on Defendants Kim
and KLK and also scheduled a deposition.
(Ibid. at p. 5, Tabibi Decl. ¶ 3, Ex. 1.) Defendants did not provide any responses, so
on July 15, 2022, Plaintiff moved the court to compel Defendants to respond to
the discovery. (Mot. p. 6.) On August 15, 2022, the Court granted
Plaintiff’s Motion to Compel and ordered Defendants to serve responses and pay
sanctions in the amount of $252.87, as to each Defendant. (Ibid., Ex. 2; 8-15-22 Minute
Order.) As of the date of the instant
Motion, Defendants have failed to respond to the discovery or pay the
sanctions. (Ibid.; Tabibi Decl. ¶
5.)
Plaintiff
also states that Defendants have willingly violated the Court’s orders, which
justified 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 order” and “an abuse/misuse of the discovery
process,” thus, warranting the imposition of sanctions. (Ibid. at pp. 8-9.)
The Court makes the following
findings. On November 16, 2021,
Defendants Kim and KLK filed an Answer to the Complaint. On August 1, 2022, the Court granted
Plaintiff’s Motion to Compel Depositions of Defendants KLK and Kim but denied
Plaintiff’s Demand for Production of Documents and Things at Said Deposition. (8-1-22 Minute Order.) The Court also granted Plaintiff’s request
for sanctions in the amount of $252.87, as to each Defendant, to be paid within
thirty (30) days’ notice of the Court order.
(Ibid.) Plaintiff does not
provide any evidence that it set a deposition date following the Court’s August
1, 2022, Order.
On August 15, 2022, Counsel
Christopher Delaplane’s was relieved from representing Defendants KLK and Kim. (8-15-22 Order; 8-15-22 Minute Order.)
On the same day, the Court granted
Plaintiff’s Motion to Deem Requests for Admission, Set One, Admitted, and
Plaintiff’s request for sanctions in the amount of $252.87 as to each
Defendant, Kim and KLK. (8-15-22 Minute
Order.) The Court also granted
Plaintiff’s Motion to Compel Form Interrogatories, Set One, and Plaintiff’s request
for sanctions in the amount of $252.87 as to each Defendant, Kim and KLK. (Ibid.)
As of the date of the instant
Motion, Defendants have not provided responses to the Form Interrogatories or
paid the sanctions for the Motion to Compel Form Interrogatories or Motion to
Deem Requests for Admission Admitted.
Thus,
since filing an Answer, Defendants 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
Romex Textiles’ Motion
for Terminating Sanctions, Striking Defendants’ Answer is GRANTED.
The Answer filed by Defendants Kim
and KLK on November 16, 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 MARCH 16, 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.
The Clerk hereby gives notice to
the moving party, who is ordered to give notice.
Certificate of Mailing is attached.