Judge Stephen I. Goorvitch, Case 19STCV18229 2022-08-11 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 19STCV18229, Date: 2022-08-11 Tentative Ruling

Case Number: 19STCV18229 Hearing Date: August 11, 2022 Dept: 39

Justin Jennings v. Samuel Jinkyoo Kang, et al.

Case No. 19STCV18229

Motion to Compel Further Responses

Motion for Terminating Sanctions

Plaintiff Justin Jennings (“Plaintiff”) moves to compel further responses from Defendant Samuel Jinkyoo Kang (“Defendant”) to Requests for Production, set one (“RPD”). Plaintiff also moves for a terminating sanction based upon Defendant’s failure to comply with the Court’s order of April 29, 2022.

A. Motion to Compel Further Responses

If the propounding party deems responses to requests for production of documents unsatisfactory, the propounding party may move to compel further responses. The Court rules as follows:

RPD #1 – Granted. Defendant’s response does not comply with section 2031.230. This response is not code-compliant because it does not state clearly that Defendant has no itemized wage statements beyond the pay stubs and whether the wage statements never existed or were destroyed, lost, misplaced, or stolen, or were never or no longer are in the possession, custody, or control of Defendant. (See Code Civ. Proc., § 2031.230.)

RPD #2 – Denied

RPD #3 – Denied

RPD #4 – Granted. Defendant’s response does not comply with section 2031.230.

RPD #5 – Granted. Defendant’s response does not comply with section 2031.230.

RPD #6 – Granted. Defendant’s response does not comply with section 2031.230.

RPD #9 – Denied.

RPD #10 – Granted. The response does not make clear whether Defendant is responding in whole or in part, as required by Code of Civil Procedure section 2031.220. Specifically, the response does not address “Defendant’s employment policies and practices.” If no such documents exist, Defendant must comply with section 2031.230.

RPD #12 – Granted. The response does not comply with section 2031.220 and, if applicable, section 2031.230.

RPD #13 – Granted. The response does not comply with section 2031.220 and, if applicable, section 2031.230.

RPD #14 – Granted. The response does not comply with section 2031.220 and, if applicable, section 2031.230.

RPD #15 – Granted. The request is clear: Plaintiff seeks all documents or materials evidencing communications between Plaintiff and Defendant, i.e., correspondence and all documents referencing such correspondence.

RPD #17 – Granted. The response does not comply with section 2031.220 and, if applicable, section 2031.230.

RPD #21 – Granted. The response does not comply with sections 2031.220 and, if applicable, section 2031.230.

RPD #34 – Granted. The response does not comply with sections 2031.220 and, if applicable, section 2031.230.

RPD #35 – Granted in part; denied in part. Plaintiff alleges that he was terminated in violation of public policy because he raised concerns that Defendant was violating the Immigration Consultants Act (the “ICA”). The ICA requires written contracts to contain certain information, per Business and Professions Code section 22442(b). This discovery is relevant to establish that Plaintiff had a good-faith belief that Defendant was violating the ICA, which is an element of a wrongful termination claim. Plaintiff alleges that he discovered the issue in or about September 2018, and was terminated on October 5, 2018. Therefore, the Court orders Defendant to produce copies of such contracts from August 1, 2018, to October 5, 2018. The Court would reconsider this order if Defendants stipulate that Plaintiff had a good-faith belief that they were violating the ICA.

RPD #36 – Granted in part; denied in part. The ICA requires signed receipts to each client, per Business and Professions Code section 22442(a). This discovery arguably is relevant to establish that Plaintiff had a good-faith belief that Defendant was violating the ICA, , which is an element of a wrongful termination claim. Plaintiff alleges that he discovered the issue in or about September 2018, and was terminated on October 5, 2018. Therefore, the Court orders Defendant to produce copies of such receipts from August 1, 2018, to October 5, 2018. The Court would reconsider this order if Defendants stipulate that Plaintiff had a good-faith belief that they were violating the ICA.

RPD #37 – Granted in part; denied in part. The ICA requires an immigration consultant to maintain a bond, per Business and Professions Code section 22442.1. This discovery arguably is relevant to establish that Plaintiff had a good-faith belief that Defendant was violating the ICA, which is an element of a wrongful termination claim. Plaintiff alleges that he discovered the issue in or about September 2018, and was terminated on October 5, 2018. Therefore, the Court orders Defendant to produce information sufficient to demonstrate whether Defendant complied with all bond requirements from August 1, 2018, to October 5, 2018. The Court would reconsider this order if Defendants stipulate that Plaintiff had a good-faith belief that they were violating the ICA.

RPD #38 through RPD #40 – Denied. This information is not reasonably calculated to lead to admissible evidence, is not relevant, and is cumulative of other discovery.

B. Motion for Terminating Sanctions

On April 29, 2022, the Court ordered Defendants to provide responses, without objections, to all outstanding discovery requests within thirty (30) days. Defendant did not provide code-compliant responses to the Requests for Production, in violation of the Court’s order of April 29, 2022. Because the Court has granted the instant motion, the Court shall afford Defendant an opportunity to correct the issue. The Court continues the motion for terminating sanctions to September 20, 2022, at 9:00 a.m. The Court provides notice that if Defendant does not comply with this order, which shall constitute compliance with its order of April 29, 2022, absent good cause, the Court intends to grant the motion for terminating sanctions.

C. Monetary Sanctions

Plaintiff seeks sanctions against Defendant and his counsel of record, Todd Fusion and David S. Kim, in the amount of $4,560. The Court finds that Defendant has abused the discovery process—and violated this Court’s order of April 29, 2022—by failing to provide code-compliant responses. The responses do not evidence a good-faith attempt to comply with Defendant’s outstanding discovery obligations. The Court finds that the requested amount is fair and appropriate under the circumstances. Therefore, the Court grants the request and orders Defendant and his counsel-of-record, David S. Kim Esq., jointly and severally, to pay discovery sanctions to Plaintiff, by and through counsel, within thirty (30) days.

D. Conclusion and Order

The Court rules as follows:

1. Plaintiff’s motion to compel further responses to the Requests for Production, Set One, is granted in part and denied in part. The Court orders Defendant to provide code-compliant responses, without objections, within twenty (20) days.

2. The Court continues the hearing on Plaintiff’s motion for terminating sanctions to September 20, 2022, at 9:00 a.m. The Court orders Plaintiff’s counsel to file a declaration on or before September 13, 2022, informing the Court whether Defendant has complied with his outstanding discovery obligations. If not, Plaintiff’s counsel shall attach a copy of the responses to his declaration. The Court provides notice that if Defendant does not comply with his outstanding discovery obligations, per the Court’s order of April 29, 2022, and the instant order, absent good cause, the Court intends to grant the motion for terminating sanctions.

3. The Court orders Defendant and his counsel-of-record, David S. Kim Esq., jointly and severally, to pay discovery sanctions in the amount of $4,560 to Plaintiff, by and through counsel, within thirty (30) days.

4. Plaintiff’s counsel shall provide notice and file proof of such with the Court.