Judge: Lee W. Tsao, Case: 19NWCV00633, Date: 2023-01-05 Tentative Ruling

Case Number: 19NWCV00633    Hearing Date: January 5, 2023    Dept: C

KIM v. S&H BUSINESS MANAGEMENT, INC.

CASE NO.:  19NWCV00633

HEARING:  01/05/23

#4

TENTATIVE ORDER

     I.        Defendants’ Motion to Vacate Order on Plaintiff’s Motion to Compel Further Responses to Requests for Production (set one) is DENIED.

    II.        Plaintiff’s Request for Sanctions is GRANTED.  Plaintiff’s Motion for Order to Show Cause Re: Contempt For Refusal to Comply with the May 24, 2022 Order and September 6, 2022 Order is DENIED without prejudice. Plaintiff’s request for monetary sanctions is GRANTED in the amount of $1,000.00.

Plaintiff to give Notice.

Motion to Vacate September 6, 2022 Order

Defendants S&H MANAGEMENT, INC. and BYUNG HA CHANG (collectively “Defendants”) move to vacate this Court’s September 6, 2022 Order GRANTING Plaintiff’s Motions to Compel Further Responses under the discretionary portion of CCP §473(b).

Defendants’ Counsel did not appear at the September 6, 2022 hearing. Although Defendants filed substantive Oppositions to the discovery Motions at issue on August 23, 2022—Defendants now contend that the September 6, 2022 Order should be vacated because Defendants’ Counsel’s failure to appear at the hearing was due to his mistaken belief that the hearing was removed from the docket/taken off calendar. (See Choi Decl., Ex. 3.) In support of this argument, Attorney Choi attaches a screenshot of the Case Summary for this case dated September 2, 2022. The September 2, 2022 screenshot shows no upcoming future hearings. (Id.)

Under the discretionary portion of CCP §473(b), the Court may relieve a party from an order or proceeding taken against him or her based upon mistake, inadvertence, surprise, or excusable neglect. The Court must look at whether the mistake or neglect was the type of error that a reasonably prudent person under similar circumstances might have made. (Bettencourt v. Los Rios Comm. College Dist. (1986) 42 Cal.3d 270, 276.)

The motion is DENIED.

The September 6, 2022 Order was not the result of any mistake, inadvertence, or surprise. It is undisputed that Defendants were aware of the underlying Motions and filed substantive Oppositions thereto. Although the screenshot of the case summary provided by Defendants’ Counsel indicates that on September 2, 2022, there were no future hearings on calendar—the Motions were not actually vacated, continued, or taken off-calendar. Indeed, a tentative order was issued prior to September 6, 2022, the Motions were heard on September 6, 2022, and an Order was issued after the hearing. Defendants’ Counsel does not state or contend that he received Notice that the Motions at issue were being taken off-calendar, vacated, or continued either by this Court or by any other parties in this action. If a matter was removed from the docket/this Court’s calendar, the matter would not have been called for hearing and all parties/this Court would have been notified.  Given the apparent error in the court’s case management system, it was incumbent upon Defendants’ Counsel to confirm the previously scheduled hearing date with either the court or opposing counsel first thing in the morning on September 6, 2022, rather than wait until 11:31 a.m. to inquire if the hearing was taken off-calendar.  (See Operini decl., Ex. 4.) 

Defendants’ Counsel relies on language in Plaintiff’s CMC Statement filed on August 29, 2022, stating “the instant action and the related action (20NWC00021) have been stayed to allow the parties to determe [sic] the fair value of S&H.”  (See Case Management Statement, Ex. 2, p. 2.)  Page 4 of the CMC Statement, however, contains the following language, “The court lifted the stay in this action on December 22, and the case is back on the regular litigation calendar to move forward with discovery and prepare for trial.  Accordingly, multiple discovery motions are anticipated to prosecute the case including the pending one set for September 6, 2022.”  (Id., at p. 4.)  It is clear and undisputed that the stay of this case was lifted on December 22, 2021.  (Order, 12/22/21.) Any conflicting statements/representations contained in Plaintiff’s CMC statement would not change the true status of this case—it is clear that there was no stay in effect on/about September 2022.

Importantly, Defendants do not explain how or why Defendants’ Counsel’s appearance at the September 6, 2022 hearing could have resulted in a different outcome. As indicated above, the Motions were fully briefed and considered by this Court prior to the hearing. To the extent that Defendants seek reconsideration of this Court’s September 6, 2022 Order—that request would be denied. Under CCP §1008, the Court may entertain a motion for reconsideration based on a showing of new or different facts, law, or circumstances. (CCP §1008.)  “New or different facts” means facts that the moving party could not, with reasonable diligence, have discovered or produced earlier (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198.) Under CCP §1008, the burden “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (Wall St. Network, Ltd. (2005) 135 Cal.App.4th 206, 212-213.) As a result, a party seeking reconsideration must provide a satisfactory explanation for failing to present the information at the first hearing, and motion for reconsideration is properly denied where it is based on evidence that could have been presented in connection with the original motion. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 647, 690; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.) These requirements are not met here. Defendants’ Counsel does not explain what information he could have presented at the September 6, 2022 hearing to warrant reconsideration.

Motion for Contempt and Request for Sanctions

The “[d]isobedience of any lawful judgment, order, or process of the court” constitutes contempt. (CCP §1209(a)(5).) When contempt is committed outside the presence of the Court, a proceeding is commenced by the filing of an affidavit charging the facts constituting contempt. (CCP §1211.) The factual predicates to a finding of contempt are: (1) the rendition of a valid order; (2) actual knowledge of the order; (3) ability to comply; and (4) willful disobedience. (Conn. v. Sup. Ct. (1987) 196 Cal.App.3d 774, 784.)

The punishment for contempt is up to five days’ imprisonment and/or a fine of up to $1,000 for each contempt. (See CCP §1218(a).) In addition, a person who is subject to a court order as party to the action who is adjudged guilty of contempt for violating that court order may be ordered to pay the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by that party in connection with the contempt proceeding. (Id.) Civil contempt proceedings are quasi-criminal in nature because of the penalties which may be imposed. (In re Kreitman (1995) 40 Cal.App.4th 750, 754.) Thus, “guilt must be established beyond a reasonable doubt.” (Ross v. Superior Court of Sacramento County (1977) 19 Cal.3d 899, 913.)

CCP §2023.030 provides, in part: “To the extent authorized by this chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, may impose the [sanctions] against anyone engaging in conduct that is a misuse of the discovery process, including monetary and issue and terminating sanctions. (a). The court may impose a monetary sanction 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. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both.” (CCP §2023.030 (a).)  Failing to respond to an authorized method of discovery and disobeying a court order to provide discovery are both misuses of the discovery process.” (CCP §§2023.010 (d) and (g).)

The Court does not find that Defendants failed to comply with this Court’s May 24, 2022 Order—the Motions heard on that date were DENIED without prejudice due to Plaintiff’s failure to meet and confer in good faith. Thereafter, the Court issued a ruling on the merits on September 6, 2022, after the Court found that the parties adequately met and conferred. 

It appears to the court, however, that Defendants’ exploit the error in the court’s case management system to explain counsel’s non-appearance at the September 6, 2022 hearing.  Defendants’ selectively read Plaintiff’s CMC Statement to support their claims. The court finds that Defendants’ motion to vacate is frivolous and made for the purpose of delay; specifically, to avoid compliance with the court’s September 6, 2022 order.  Plaintiff’s Request for Monetary Sanctions is GRANTED.  Sanctions in the amount of $1,000.00 are imposed jointly and severally against Defendants and Sung Woo Choi of Logos Professional Law Corp. their attorney of record.

The court believes that said sanctions are sufficient to address Defendants’ conduct following the September 6, 2022 hearing.  The Motion for Contempt is DENIED without prejudice. 

Defendants are ORDERED to comply with this Court’s September 6, 2022 Order by no later than 15 days from the date of the Court’s issuance of this Order.