Judge Thomas D. Long, Case Number: 19STCV42531, Date: 2023-08-17 Tentative Ruling

On November 22, 2019, Plaintiffs Streaming IQ Inc., and Moussa Lavaee (collectively, “Plaintiffs”) filed this action against Defendants Steven Lin, Keith Hoang, AboveLab Inc., Skisen Corporation, GoJoy Inc., and Kaurat Reserves Ltd. (collectively, “Defendants”).

On November 17, 2020, November 24, 2020, and February 25, 2021, the Court granted Plaintiffs’ motions to compel discovery and further discovery in whole or in part.

On March 23, 2021, the Court granted Defendants’ ex parte application to stay this action pending the resolution of criminal proceedings against Lin.

On April 3, 2023, Plaintiffs filed a motion for terminating sanctions due to Defendants’ failure to comply with the Court’s November 17, 2020, November 24, 2020, and February 25, 2021 discovery orders.

A court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d).) Misuse of the discovery process includes failing to respond to discovery, unjustifiably making unmeritorious objections to discovery, and disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010.) “The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’ [Citation.] Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.)

According to Plaintiffs, Defendants never complied with the Court’s prior discovery orders. (Ahn Decl. ¶¶ 6, 8, 11.) After the Court lifted the stay, Plaintiffs’ counsel requested that Defendants comply with the orders and provide dates for Defendants’ depositions, but they did not respond. (Ahn Decl. ¶¶ 14, 15.)

Defendants contend that their special interrogatory responses and document production will be served before the hearing on this motion. (Opposition at p. 2.) Defendants have also now paid the monetary sanctions. (Reply at p. 2.) At the hearing, the parties should be ready to advise the Court about the status of Defendants’ production, especially because Plaintiffs “graciously agreed to consider withdrawing this Motion once [they] receive the responses and payments requested.” (Reply at p. 2.)

Defendants also argue that Lin’s assertion of his Fifth Amendment rights moots the prior orders. (Opposition at pp. 6-7.) This invocation of privilege does not override the Court’s prior orders. On November 24, 2020, Defendants were ordered to provide verified responses without objections within 15 days. On February 25, 2021, Defendants were ordered to provide further responses to form interrogatories and special interrogatories. These remain valid court orders. If Lin intends to assert his Fifth Amendment rights in response to future discovery requests, including at his deposition, he may still do so. But as the Court explained in its February 24, 2023 order, objections on Fifth Amendment grounds must specifically claim the privilege and the Court must conduct a particularized inquiry with respect to each specific claim of privilege to determine whether the privilege applies. (See Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1044-1045; Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1124.) The Court makes no ruling on the merits of any Fifth Amendment privilege at this time because those claims are not yet before the Court.

Under the totality of the circumstances, Plaintiffs have not shown a history of willful discovery abuse by Defendants, and the Court cannot find that less severe sanctions would be ineffective and that terminating sanctions are warranted.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court