Judge Michelle Williams Court, Case 20STCV46960 2022-09-08 Tentative Ruling

Judge: Michelle Williams Court, Case: 20STCV46960, Date: 2022-09-08 Tentative Ruling

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Case Number: 20STCV46960 Hearing Date: September 8, 2022 Dept: 74

20STCV46960 DAHADA SERVICE AMERICA, INC. vs MIN CHUL JEON

(1) Defendant/Cross-Complainant Min Chul Jeon’s Motion to Compel Further Responses to Request for Production, Set One, and Imposition of Monetary Sanctions in the Amount of $2,068.91 against Plaintiff is GRANTED. Plaintiff/Cross-Complainant Dahada Service America, Inc. is ordered to produce all responsive documents consistent with its statements of compliance in its May 10, 2021 responses to Defendant Min Chul Jeon’s Request for Production of Documents, Set No. One within 30 days. Pursuant to Code of Civil Procedure section 2031.320(b), the Court imposes sanctions against Plaintiff/Cross-Complainant Dahada Service America, Inc. and its counsel of record in the amount of $468.91 payable to Defendant/Cross-Complainant Min Chul Jeon via their attorney of record within 60 days.

(2) Defendant/Cross-Complainant Min Chul Jeon’s Motion to Compel Initial Responses to Form Interrogatories – General, Set One, and Request for Imposition of Monetary Sanctions in the Amount of $1,268.91 against Plaintiff/Cross-Defendant Dahada Service America, Inc. is GRANTED. Plaintiff/Cross-Complainant Dahada Service America, Inc. is ordered to serve complete, verified, code-compliant responses Defendant/Cross-Complainant Jeon’s Form Interrogatories – General, Set One without objection within 20 days. Pursuant to Code of Civil Procedure section 2030.290(c), the Court imposes sanctions against Plaintiff/Cross-Complainant Dahada Service America, Inc. in the amount of $468.91 payable to Defendant/Cross-Complainant Min Chul Jeon via their attorney of record within 60 days.

Background

On December 8, 2020, Plaintiff Dahada Service America, Inc. filed this action against Defendants Min Chul Jeon, John Lee, Nationwide Freight Solution, Inc., Steve W. Kim, KTS Trucking, Inc., AM Trucking Transportation, Inc. The complaint asserts twelve causes of action arising out of allegations that Jeon embezzled more than $500,000.00 from Plaintiff.

On February 3, 2021, Min Chul Jeon, John Lee, and AM Trucking Transportation, Inc. filed a cross-complaint against Hyuk Jae Kim, Dahada Service America, Inc., Truck King. Inc., Jeong Eun Yeon, Luis Torres, Jaejun Ka, and Samuel Choi asserting twelve causes of action.

Motion to Compel Further Responses to Request for Production

On February 18, 2022, Defendant/Cross-Complainant Min Chul Jeon filed a motion seeking to compel Plaintiff to produce documents consistent with their statements of compliance.

The Court notes Defendant’s motion is captioned as a motion to compel further responses, the footer of each page states it is a “motion to compel documents in response to request for production of documents, set one,” and the Notice of Motion states the motion “will be made pursuant to section 2031.300 (b) of the Code of Civil Procedure, which provides that the party propounding interrogatories may move for an order compelling responses to the interrogatories.”

However, the body of the memorandum relies entirely upon Code of Civil Procedure section 2031.320, which governs motions to compel compliance with statements of compliance in response to requests for production.

The motion was properly served and is unopposed. (Code Civ. Proc. § 1005(c).)

Standard

Pursuant to Code of Civil Procedure section 2031.320(a), “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.” There is no time limit for bringing this motion, except for the generally applicable discovery cut-off, and there is no meet and confer requirement.

Plaintiff/Cross-Complainant Must Provide Responsive Documents

On March 25, 2021, Defendant/Cross-Complainant Jeon served Request for Production of Documents, Set One upon Plaintiff/Cross-Complainant Dahada Service America, Inc. (Park Decl. ¶ 2, Ex. 1.) Plaintiff provided a written response on May 10, 2021. (Id. ¶ 3, Ex. 2.) Despite Plaintiff’s statements of compliance, it failed to produce responsive documents. (Id. ¶ 3.) Accordingly, the motion is GRANTED. (Code Civ. Proc. § 2031.320(a).)

The Motion is Untimely as it Relates to Privilege Issues

In the motion and accompanying separate statement, Defendant/Cross-Complainant Jeon states that “Plaintiff did not provide a privilege log as required by code.” (Mot. at 3:20. See e.g. Sep. Stmt. at 2:19-20.) The Discovery Act does not necessarily require a privilege log, only sufficient information to evaluate the privilege. (Code Civ. Proc. § 2031.240(c)(1) (“If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.”).)

Additionally, “[t]he propounding party's remedy when it deems ‘[a]n objection in the response is without merit or too general’ is to ‘move for an order compelling further response.’” (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1127.) A motion to compel further responses must be served within 45 days of the response. (Code Civ. Proc. § 2031.310(c).)

Plaintiff’s responses, including the invocation of privilege, were provided on May 10, 2021. Defendant/Cross-Complainant Jeon did not serve the motion until February 18, 2022, well beyond the 45-day deadline. “Failure to so move within the specified period constitutes a waiver of any right to compel a further response.” (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 902.) Accordingly, the motion is untimely as a motion to compel further responses and the Court does not make any orders regarding the claimed privilege or the request for a privilege log.

Sanctions

Pursuant to Code of Civil Procedure section 2031.320(b), “[t]he 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 compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Defendant/Cross-Complainant Jeon’s motion sought sanctions in the amount of $2,068.91 against Plaintiff/Cross-Complainant Dahada Service America, Inc. and its counsel. The sanction request includes “3 hours in the research and preparation of the motion and proposed order” and “an additional 2 hours to review any opposition, prepare a reply, and attend the hearing on the motion” at a rate of $400.00 per hour as well as the $60.00 filing fee and 8.91 in court fees. (Park Decl. ¶ 4.)

Defendant/Cross-Complainant Jeon’s sanction request is excessive. The motion was unopposed. Accordingly, Defendant/Cross-Complainant was not required to file a reply and may submit on the Court’s tentative ruling rather than personally attend the unopposed hearing. Additionally, Defendant/Cross-Complainant Jeon’s motion to compel compliance was not required to be accompanied by a separate statement, (Cal. R. Ct., rule 3.1345(a)), and the attorneys’ fees associated therewith are unreasonable. The Court finds one hour of attorney time and the claimed court costs to be the reasonable and appropriate sanctions under the circumstances.

Accordingly, the Court imposes sanctions in the amount of $468.91, consisting of one hour of attorney time at a rate of $400.00 per hour as well as the $68.91 in court fees against Plaintiff and its counsel.

Motion to Compel Responses to Form Interrogatories

On February 18, 2022, Defendant/Cross-Complainant Min Chul Jeon filed a motion to compel initial responses to Form Interrogatories – General, Set One from Plaintiff/Cross-Complainant Dahada Service America, Inc.

The motion was properly served and is unopposed. (Code Civ. Proc. § 1005(c).)

Standard

The propounding party may move for an order compelling a party to respond to the discovery request. (Code Civ. Proc. §§2030.290(b); Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) A party that fails to serve a timely response to the discovery request waives any objection to the request, including one based on privilege or the protection of attorney work product. (Code Civ. Proc. §§ 2030.290(a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a forty-five (45) day time limit or a separate statement requirement, and the propounding party does not have to demonstrate either good cause or that it satisfied a “meet and confer” requirement. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 404.)

Plaintiff/Cross-Complainant Must Provide Responses to Form Interrogatories – General, Set One

On March 25, 2021, Defendant/Cross-Complainant Jeon served Form Interrogatories – General, Set One upon Plaintiff/Cross-Complainant Dahada Service America, Inc. (Park Decl. ¶ 2, Ex. 1.) Jeon provided extensions through September 29, 2021, but no responses or objections were provided. (Id. ¶ 3.) Accordingly, Plaintiff/Cross-Complainant has waived all objections thereto and must provide complete, verified, code-complaint responses without objection within 20 days. (Code Civ. Proc. § 2030.290.)

Sanctions

Pursuant to Code of Civil Procedure section 2030.290(c), “[t]he 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 a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Defendant/Cross-Complainant Jeon’s motion sought sanctions in the amount of $1,268.91 against Plaintiff/Cross-Complainant Dahada Service America, Inc. only. The sanction request includes “1 hour in the research and preparation of the motion and proposed order” and “an additional 2 hours to review any opposition, prepare a reply, and attend the hearing on the motion” at a rate of $400.00 per hour as well as the $60.00 filing fee and 8.91 in court fees. (Park Decl. ¶ 4.)