Judge: Michael P. Linfield, Case: 21STCV47329, Date: 2024-03-27 Tentative Ruling
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Case Number: 21STCV47329 Hearing Date: March 27, 2024 Dept: 34
SUBJECT: Motion for
Judgment on the Pleadings as to the First Amended Complaint
Moving Party: Mira
Jeon Kim
Resp. Party: None
SUBJECT: Motion to
Compel Plaintiff to Respond to Form Interrogatories, Set One
Moving Party: Mira
Jeon Kim
Resp. Party: None
SUBJECT: Motion to
Compel Plaintiff to Respond to Special Interrogatories, Set One
Moving Party: Mira
Jeon Kim
Resp. Party: None
SUBJECT: Motion to
Compel Plaintiff to Respond to Request for Production, Set One
Moving Party: Mira
Jeon Kim
Resp. Party: None
The MJOP is DENIED without prejudice.
The FROGs Motion, the SROGs Motion, and the RPDs Motion are
GRANTED in part. Jan Bidasha shall serve responses to the discovery propounded,
without objections, within thirty (30) days of the issuance of this Order.
The
Requests for Monetary Sanctions are DENIED.
BACKGROUND:
On December 29,
2021, Jan Bidasha filed her Verified Complaint against Novastar, LLC, Philip
Landau, and Mira Jeon Kim on causes of action for quiet title, declaratory
relief, injunctive relief, and violation of Business and Professions Code
section 17200.
On September
19, 2022, Jan Bidasha filed her Verified First Amended Complaint (“FAC”).
On October 6,
2022, Defendant Mira Jeon Kim filed: (1) Verified Answer to the FAC; and (2)
Cross-Complaint against Jan Bidasha, Philip Landau, and Novastar, LLC (“Kim
Cross-Complaint”).
On October
24, 2022, Novastar, LLC and Philip Landau filed their Verified Answer to the
FAC.
On November
9, 2022, Novastar, LLC and Philip Landau filed: (1) Answer to the Kim
Cross-Complaint; and (2) Cross-Complaint against Mira Jeon Kim (“Novastar and
Landau Cross-Complaint”).
On November
17, 2022, Jan Bidasha filed her Answer to the Kim Cross-Complaint.
On November
22, 2022, Novastar, LLC and Philiip Landau filed their First Amended
Cross-Complaint (“Novastar and Landau FACC”).
On March 21,
2023, the Court sustained, without leave to amend, Mira Jeon Kim’s demurrer to
the Novastar and Landau FACC.
On December
13, 2023, Mira Jeon Kim filed: (1) Motion for Judgment on the Pleadings as to
First Amended Complaint (“MJOP”); (2) Motion to Compel Plaintiff to Respond to
Form Interrogatories, Set One (“FROGs Motion”); (3) Motion to Compel Plaintiff
to Respond to Special Interrogatories, Set One (“SROGs Motion”); and (4) Motion
to Compel Plaintiff to Respond to Request for Production, Set One (“RPDs
Motion”). In support of each of these motions, Mira Jeon Kim concurrently filed
a Proposed Order. In addition, a Request for Judicial Notice was filed in
support of the MJOP.
No
oppositions or other responses were filed to these four motions.
ANALYSIS:
I.
Motion for Judgment on the Pleadings
A. Request
for Judicial Notice
Mira Jeon Kim
requests that the Court take judicial notice of:
(1) the Cross-Complaint
filed in case BC664498 in the Superior Court of California, County of Los
Angeles;
(2) the First Amended
Complaint filed in case BC558394 in the Superior Court of California, County of
Los Angeles;
(3) the Motion for
Judgment on the Pleadings filed in case BC558394 in the Superior Court of
California, County of Los Angeles;
(4) Request for
Judicial Notice in support of the Motion for Judgment on the Pleadings filed in
case BC558394 in the Superior Court of California, County of Los Angeles; and
(5) Notice of Entry
of Judgment filed in case BC558394 in the Superior Court of California, County
of Los Angeles.
“While
courts may notice official acts and public records, we do not take judicial
notice of the truth of all matters stated therein.” (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7
Cal.4th 1057, 1063–1064 [cleaned up], overruled on other grounds by Lorillard
Tobacco Co. v. Reilly (2001) 533 U.S. 525 and In re Tobacco Cases II (2007)
41 Cal.4th 1257, 1276.)
The Court GRANTS
judicial notice of the existence and filing of each of these items, but not of the
truth of the assertions contained in the filings.
B. Legal
Standard
“A party may move for judgment on the pleadings.”
(Code Civ. Proc., § 438, subd. (b)(1).)
The motion provided for in this section may only be
made on one of the following grounds: . . . (B) If the moving party is a defendant,
that either of the following conditions exist: (i) The court has no
jurisdiction of the subject of the cause of action alleged in the complaint.
(ii) The complaint does not state facts sufficient to constitute a cause of
action against that defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B).)
“A motion for
judgment on the pleadings performs the same function as a general demurrer, and
hence attacks only defects disclosed on the face of the pleadings or by matters
that can be judicially noticed.” (Cloud v. Northrop Grumman Corp. (1998)
67 Cal.App.4th 995, 999, citations omitted.)
“In deciding
or reviewing a judgment on the pleadings, all properly pleaded material facts
are deemed to be true, as well as all facts that may be implied or inferred
from those expressly alleged.” (Fire Ins. Exch. v. Super. Ct. (2004) 116
Cal.App.4th 446, 452.)
C. Discussion
Mira Jeon Kim moves the Court for judgment on the pleadings
regarding the FAC. (MJOP, p. 18:2–4.)
Mira Jeon Kim argues: (1) that claim preclusion and issue
preclusion from case BC558394 bar this action against Mira Jeon Kim, even
though case BC664498 is still pending; (2) that Jan Bidasha cannot prevail in
case BC664498 on the quiet title claim; (3) that even if the lis pendens was
wrongfully withdrawn, Mira Jeon Kim would only be taking the property subject
the results of an action that cannot be successful because of issue preclusion;
(4) that Jan Bidasha’s claims for rescission and quiet title based upon
cancellation and rescission violate the applicable statute of limitations; and
(5) that Jan Bidasha is a bona fide purchaser for value and there are no
allegations in the Complaint to overcome that presumption. (MJOP, pp. 9:3–4,
14:12–13, 15:11–12, 16:1–2, 16:20–21.)
Jan Bidasha has not filed an opposition or other response to
the MJOP.
On January 18, 2022, the Court sitting in Department 14 found
that this matter (case 21STCV47329) and the other ongoing matter (case
BC664498) are related, and designated case BC664498 as the lead case. On July
18, 2023, after a new judicial officer had been assigned to Department 14 and a
peremptory challenge had been accepted, these two cases were ultimately
unrelated. Trial is scheduled for April 8, 2024 in case BC664498; trial is not
yet scheduled in this matter.
The core of the arguments made in the
MJOP regard issue preclusion (also known as collateral estoppel) and claim
preclusion (also known as res judicata). At this time, these arguments are
primarily based on the Judgment of Dismissal in case BC558394, dated September
29, 2017. However, that matter did not involve a claim for quiet title, and it
is unclear based on the materials submitted to the Court at this time to what
extent certain issues were actually litigated in case BC558394. Furthermore, it
appears that the issues present in this matter are likely to be actually tried
a couple weeks after the hearing on this motion.
Thus, Mira Jeon Kim’s MJOP is unripe.
These issues may be raised again after judgment is entered in case BC664498,
which was previously designated as the lead case.
D. Conclusion
The MJOP is DENIED without prejudice.
II. The Three
Discovery Motions
A. Legal
Standard
California Code of Civil Procedure requires a
response from the party to whom form interrogatories, special interrogatories,
and demand requests are propounded within 30 days after service of the
requests, unless the time is extended by agreement of the parties. (Code Civ.
Proc., §§ 2030.260, subd. (a), 2030.270, subd. (a), 2031.260, subd. (a),
2031.270, subd. (a).) If a party fails to serve timely responses, "the
party making the demand may move for an order compelling response to the
demand.” (Code Civ. Proc., § 2030.300, subd. (b).) By failing to respond, the
offending party waives any objection to the demand. (Code Civ. Proc., §
2030.290, subd. (a).)
For a motion to compel, all a propounding
party must show is that it properly served its discovery requests, that the
time to respond has expired, and that the party to whom the requests were
directed failed to provide a timely response. (See Leach v. Super. Ct.
(1980) 111 Cal.App.3d 902, 905, 906.) Indeed, "[o]nce [a party] 'fail[ed]
to serve a timely response,' the trial court had authority to grant [opposing
party's] motion to compel responses." (Sinaiko Healthcare Counseling,
Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)
The court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel motions for
interrogatories or requests for production, 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. If a party then fails
to obey an order compelling answers, the court may make those orders that are
just, including the imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Chapter 7 (commencing with Section 2023.010). In
lieu of or in addition to that sanction, the court may impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc.,
§§ 2030.290, subd. (c), 2031.300, subd. (c).)
B. The
Discovery Requests
Mira Jeon Kim moves the Court to order Jan Bidasha to respond
without objections to form interrogatories (“FROGs”), special interrogatories
(“SROGs”), and requests for production of documents (“RPDs”) propounded on
December 13, 2022. (FROGs Motion, p. 7:25–26 and Exh. A, Proof of Service;
SROGs Motion, p. 7:25–26 and Exh. A, Proof of Service; RPDs Motion, p. 7:2–3
and Exh. A, Proof of Service.) Counsel for Mira Jeon Kim declares that no
responses have been served. (Id., Decls. Broersma, ¶ 4.)
Jan Bidasha does not oppose or otherwise
respond to these discovery motions.
The Court does not have evidence before
it that would indicate responses to the discovery requests have been served.
Rather, the evidence before the Court indicates that responses to the discovery
requests have not been served.
The Court GRANTS in part the FROGs
Motion, the SROGs Motion, and the RPDs Motion. Jan Bidasha shall serve
responses to the discovery propounded, without objections, within thirty (30)
days of the issuance of this Order. The
Court has chosen 30 days because it did not want to interfere with the
currently-scheduled trial in Dept. 14; further, since trial in this matter has
not yet been scheduled, there is no impending deadline for discovery responses.
C. Sanctions
Mira Jeon Kim requests monetary sanctions for each of the
discovery motions.
At this time, monetary sanctions are not appropriate. Until
recently, this matter (case 21STCV47329) was related with another matter (case
BC664498), and this matter was scheduled for trial on December 11, 2023. This
motion for discovery was not filed until after that last trial date, and it is
possible that discovery in this matter might be moot after the upcoming trial
in the other matter. The Court finds that these circumstances mitigate against
issuing monetary sanctions at this time.
D. Conclusion
The FROGs Motion, the SROGs Motion, and the
RPDs Motion are GRANTED in part. Jan Bidasha shall serve responses to the
discovery ropounded, without objections, within thirty (30) days of the
issuance of this Order.
The
Requests for Monetary Sanctions are DENIED.