Judge: Michael Shultz, Case: TC029210, Date: 2023-02-28 Tentative Ruling
Case Number: TC029210 Hearing Date: February 28, 2023 Dept: A
TC029210 Kris Park v. Chul Woong Chung, et al.
[TENTATIVE] ORDER
This is a derivative action filed
by Plaintiff, Kris Park, on behalf of SIWY Denim, Inc. (“SIWY”). Plaintiff
alleges that Defendants conspired to embezzle funds from SIWY. Plaintiff
alleges claims for: (1) breach of fiduciary duty, (2) conversion, (3)
constructive trust, (4) concealment, and (5) declaratory relief. On December 6,
2022, the Court granted the motion to relieve Kenneth T. Haan as counsel for
Plaintiff asks for an order to
strike Kim’s answer for failing to comply with the Court’s order of December 1,
2022 to appear for a deposition scheduled by Plaintiff. Plaintiff also asks for
an order imposing monetary sanctions. Plaintiff served the motion on Defendant
Kim, who has not filed an opposition.
Refusing to comply with a court
order to provide discovery constitutes an abuse of the discovery process. (Code Civ. Proc., § 2023.010(g). The
court may impose terminating and other sanctions against the non-complying
party by striking that party’s pleadings and rendering a judgment by default. (Code Civ. Proc., § 2023.030(d)(1) and (4)).
On December 1, 2022, the Court
granted Plaintiff’s motion to compel Kim’s deposition and ordered Kim to appear
within 14 days. (Min. Ord. 12/1/22). Plaintiff
communicated with former defense counsel and Defendant Kim about the Court’s
order compelling his appearance. (Decl. of James Beck ¶ 14). Defendant
did not respond. (Id).
While terminating sanctions are a
drastic measure, "there is no question that a court is empowered to apply
the ultimate sanction against a litigant who persists in the outright refusal
to comply with his discovery obligations [citation omitted].” (Deyo
v. Kilbourne (1978) 84 Cal.App.3d 771, 793).
Accordingly, the motion is
GRANTED. The Court strikes the answer filed on Defendant’s behalf on January 9,
2020. Plaintiff is ordered to comply with Code Civ. Proc., § 585 to obtain a
judgment by default. The Court imposes monetary sanctions against Defendant,
Minkyu Kim, in the reduced amount of $700 ($350/hour x 2 hours) and $82.20 in
costs for a total of $782.20, payable to Plaintiff within 10 days.