Judge Thomas D. Long, Case 20STCV34811 2022-12-13 Tentative Ruling

On September 11, 2020, Plaintiffs Jae Duck Chung and Chong Hui Chong (collectively, “Plaintiffs”) filed this action against Defendants Healthy Land, Inc., Theresa H. Hwang, and Ambrosio Hwang (collectively, “Defendants”). “The parties and relevant individuals share a last name. For clarity, convenience, and in order to avoid confusion, we refer to them by their first names and intend no disrespect.” (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)

“If a deponent fails to answer any question . . . that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer . . . .” (Code Civ. Proc., § 2025.480, subd. (a).) The court shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel an answer or production, 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. (Code Civ. Proc., § 2025.480, subd. (j).)

On April 1, 2022, Plaintiffs conducted Ambrosio’s deposition. (Heath Decl. ¶ 2.) On August 19, 2022, Plaintiffs conducted the second volume of Ambrosio’s deposition, where he refused to answer certain questions. (Heath Decl. ¶ 4.) On September 13, 2022, Plaintiffs’ counsel sent a meet-and-confer email to Defendants’ counsel. (Heath Decl. ¶ 5 & Ex. B.)

On October 28, 2022, the parties participated in an Informal Discovery Conference. (Heath Decl. ¶ 7.) Later that afternoon, Plaintiffs’ counsel emailed Defendants’ counsel: “Per the discussion at today’s Informal Discovery Conference, please advise by no later than the close of business on Monday, October 31, 2022 whether or not Ambrosio Hwang will provide verified, written responses to interrogatories relating to the questions which were addressed in today’s IDC as well as in my September 13, 2022 ‘meet and confer’ correspondence regarding his refusal to answer key questions at his deposition.” (Motion, Ex. D.)

On November 1, 2022 at 3:30 p.m., Defendants’ counsel replied: “Mr. Hwang will provide verified written responses to interrogatories relating to the questions in your meet and confer email in lieu of a further deposition.” (Motion, Ex. E.) About twenty minutes later, Plaintiffs’ counsel responded: “We provided a deadline to respond and like many other deadlines in this case, you ignored it. I’m afraid your reply is too little, too late. Moreover, given your prior misrepresentations, we have no reason to believe you will follow through on any of your promises. Sadly, this appears to be yet another delay tactic.” (Motion, Ex. F.)

On November 14, 2022, Plaintiffs filed a motion to compel Ambrosio to appear for a further deposition.

It is undisputed that Ambrosio failed to answer some questions at his prior deposition. But the parties appeared to reach a resolution about these questions at the Informal Discovery Conference—a process that, according to this Department’s Courtroom Information, is intended to eliminate any need for a motion and conserve both client and judicial resources.

Furthermore, Plaintiffs’ counsel’s October 28, 2022 email did not attach the interrogatories and asked only for a confirmation that Ambrosio would agree to provide verified, written responses to interrogatories—something that Defendants’ counsel already offered to ensure at the Informal Discovery Conference. (Rios Decl. ¶ 11.) Although Defendants’ counsel replied almost a day after Plaintiffs’ deadline, Defendants’ further acceptance or response, as demanded by Plaintiffs’ counsel, was unnecessary.

Plaintiffs argue that “Defendant did not state when he would respond, that verifications would be provided . . . and that the responses would be without objections.” (Motion at p. 6.) Defendants could not reasonably state when Ambrosio would provide responses because Plaintiffs had not yet sent the interrogatories. And Defendants’ counsel has confirmed that Ambrosio “will provide verified written responses.” (Motion, Ex. E.) If Ambrosio does object and Plaintiffs believe the objections are improper, they may file the appropriate motion to compel further responses.

In sum, this motion is unnecessary. Defendants have agreed—both at the Informal Discovery Conference and subsequently via email—to provide verified written responses to interrogatories (relating to the questions in Plaintiffs’ meet and confer email) in lieu of a further deposition. Defendants are complying with the agreed-upon resolution from the Informal Discovery Conference, and there is no indication that they will refuse to respond. Instead, it appears that Plaintiffs—not Defendants—are unnecessarily delaying. The motion is therefore denied.

For these reasons, the Court finds that Plaintiffs did not act with substantial justification in bringing this motion. Accordingly, Defendants’ request for sanctions of $1,600.00 is granted. (Code Civ. Proc., § 2025.480, subd. (j).)

Defendants’ request for sanctions is GRANTED. Plaintiffs are ordered to pay sanctions of $1,600.00 to Defendants within 10 days.

The motion to compel further deposition refers to Plaintiff Chong Hui Chong “and her now deceased husband.” (Motion at p. 3.) It continues to refer to “Plaintiff” in the singular form. Thus, it appears that Plaintiff Jae Duck Chung may be deceased and can no longer prosecute his claims.

“A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest . . . and an action may be commenced by the decedent’s personal representatives or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., § 377.30.) After the death of a plaintiff, the court, on motion, shall allow a pending action that does not abate to be continued by the decedent’s personal representative or successor-in-interest. (Code Civ. Proc., § 377.31.)

No successor-in-interest has moved to continue Jae Duck Chung’s claims, and no dismissal has been filed.

Accordingly, an Order to Show Cause Re: Substitution of Successor-in-Interest or Dismissal is scheduled for 12/27/2022 at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse (December 27, 2022). If Jae Duck Chung’s successor-in-interest contends that his causes of action survive and wishes to continue this action, they must comply with the requirements of Code of Civil Procedure section 377.32 by this date. Otherwise, the Court will dismiss Jae Duck Chung’s claims.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court