Judge: Stephen P. Pfahler, Case: 23STCV10421, Date: 2024-04-17 Tentative Ruling
Case Number: 23STCV10421 Hearing Date: April 23, 2024 Dept: 68
Dept.
68
Date:
4-23-24
Case:
23STCV10421
Trial
Date: First Trial, 9-9-24 c/f 6-3-24; Second Trial, 12-2-24 c/f 9-23-24
FURTHER ADMISSIONS
MOVING
PARTY: Defendant/Cross-Complainant, Jason Lee
RESPONDING
PARTY: Plaintiff/Cross-Defendant, Kelly Kim
RELIEF
REQUESTED
Motion
to Compel Further Responses to Request for Admissions (set one)
SUMMARY
OF ACTION
Plaintiff
Kelly Soojin Kim alleges Defendant Jason Lee approached her in “early 2021” to
establish a business relationship, whereby Lee would work with Kim at an
existing establishment owned and operated by Kim, and identified as Star Night.
Kim alleges Defendant proposed the joint venture in order to improve revenue at
Star Night given Lee’s prior operation of a similar restaurant business lost to
a fire. Lee purportedly represented to offer certain proprietary “secret”
recipes and “restaurant management know how” as part of said incentive.
In
March 2021, the parties entered into a shareholder agreement, identified as the
B&K Enterprise, Inc., Agreement between Shareholders. The agreement
provides Kim with a 51% ownership share of the of the B&K Enterprise, Inc.
business entity, and Lee with the remaining 49%. The agreement articulates
certain responsibilities between the owners based on either the first or second
floor location within the premises, and also provided Lee with the right to
open additional OB Bear Restaurant locations outside the state of California
without the consent of majority shareholder Kim.
The
parties’ working relationship was unsuccessful, with multiple accusations of
embezzlement and improper operational management practices. Lee subsequently
requested cessation from the partnership. Kim alleges Lee solicited the
purported business with the intention of either acquiring Star Night for
himself, or to destroy the business and open a new competing business upon
payment on the insurance casualty claim following the business premises fire.
Kim also contends that the failure to ever turn over the alleged secret recipes
constituted a violation of the partnership agreement, and therefore a lack of
consideration. Kim therefore denies any enforceable shareholder agreement,
thereby entitling Lee to any rights as a shareholder.
On
May 9, 2023, Kim filed a verified complaint for Breach of Contract; Breach of
Fiduciary Duty; Fraud [Cal. Civ. Code § 1710(1)]; Unfair Competition [Cal.
B&P Code §§ 17200 Et Seq.]; Rescission of Written Instrument Based Upon
Fraud [Cal. Civ. Code §§ 3399, 1571.73 and 1689(1)]; Declaratory Relief [C.C.P.
§ 1060]; and, Injunctive Relief. On June 26, 2023, Lee answered the complaint
and filed a cross-complaint for Involuntary dissolution of Corporation;
Accounting; Breach of Fiduciary Duty; Breach of Contract; Breach of Implied Covenant
of Good Faith and Fair Dealing; and Constructive Wrongful Discharge. On October
13, 2023, Lee filed a first amended cross-complaint for Involuntary dissolution
of Corporation; Accounting; Breach of Fiduciary Duty; Breach of Contract;
Breach of Implied Covenant of Good Faith and Fair Dealing; Constructive Wrongful
Discharge; Unjust Enrichment; and Theft by False Pretense.
Lee
confirms the represented terms of the deal, but also adds in an agreement for a
50-50 split of profits, with Lee receiving a $4,000/month salary as well. If
operations were successful, Lee would be entitled to a 1% share, thereby
rendering the parties equal shareholders. Lee also concedes to the agreement to
provide certain recipes, which apparently included a popular Korean fried
chicken recipe popular with customers. Lee also maintains tendering a $150,000
check to Kim towards the agreement.
Contrary
to Kim, Lee maintains the recipes were provided. Kim, however, began
interfering with operations. After “two or three months,” Lee sought to
negotiate the termination of the business relationship.
On
October 23, 2023, the court granted Plaintiff’s motion to bifurcate the trial
on the issue of shareholder status of defendant Lee.
RULING: Off-Calendar/Denied.
Defendant/Cross-Complainant,
Jason Lee moves to compel further responses to “attorneys eyes only” Request
for Admissions (set one) from Plaintiff Kelly Kim.
The
notice of motion was filed on March 21, 2024. The notice only identified the
parties and hearing without any points and authorities or declarations. On
April 5, 2024, Lee filed an amended notice of motion, separate statement, and
Declaration of Sean Post.
The amended notice of motion is untimely, in that it was
filed less than 16 court days from the hearing date. (Code Civ. Proc., § 1005,
subd. (b).) The original notice of motion was incomplete will not support the
amended notice given all of the additional items included in the motion.
Plaintiff properly objects to the untimeliness of the motion. The court
therefore denies the motion, takes the motion off-calendar, and declines to
consider the merits of the motion regardless of brief substantive challenges in
the opposition and reply.
Even if the court considered the merits, the motion redacts
the actual operative item and response. The court docket shows no order sealing
the records. If the parties are cooperating pursuant to a protective order,
Moving Party must make accommodations with court staff for the delivery of
unredacted copies for the court to review the items. The court therefore
declines to consider the motion, opposition or reply on this basis as well.
Motions to Compel Further Responses remain currently
scheduled for May 23, July 24, and August 15, 2024. As with the current motion,
the scheduled items only contain notices of motion. The court advises Moving
Party to adhere to cutoff dates in case any amended motions remain forthcoming.
The court also advises Moving Party that continuing, voluminous and contentious
discovery requests, which may include the repeated submission of unreadable
portions of operative item(s) to the court, may lead to referral to a referee
for consideration of any all items.
Lee to provide notice.