This case was last updated from Los Angeles County Superior Courts on 06/29/2019 at 00:30:51 (UTC).

RONALD KIM ET AL VS PALM TREE INVESTMENTS INC ET AL

Case Summary

On 04/09/2015 RONALD KIM filed a Personal Injury - Other Personal Injury lawsuit against PALM TREE INVESTMENTS INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELIA WEINBACH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8348

  • Filing Date:

    04/09/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ELIA WEINBACH

 

Party Details

Plaintiffs, Defendants, Petitioners and Respondents

DOES 1 THROUGH X

KIM RONALD

PARK PETER

HA KI WON

PALM TREE INVESTMENTS INC.

HANKOOK PROPERTY MANAGEMENT CO. INC.

HA KEE WHAN

SHIN DONG JOON-DOE 18

PALMTREE AT WILSHIRE INC. [DOE 11]

LEWIS VERNON-14

YOONS SECURITY [DOE 20]

YANG AREUM AKA YANG ARUM-DOE 17

PALM TREE LA [DOE 3]

LOWELL MICHAEL L.-DOE 15

PALM TREE L.A. [DOE 4]

SAM HAN INTERNATIONAL INC. [DOE 1]

CHOI SOON HEE-DOE 13

KIM JAE WON-DOE 19

HILL MARKEY ANTHONY-DOE 16

PAUL HWANG [DOE 6]

5 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICES OF EDI M.O. FAAL

DORSETT DANA MOON ESQ.

DAGHER NICHOLAS F.

Defendant and Respondent Attorneys

JANG MICHAEL

GMELICH THOMAS P. ESQ.

GMELICH THOMAS P.

JANG MICHAEL G.

FLOCK JOHN K.

 

Court Documents

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

1/17/2018: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

Ex Parte Application

6/21/2019: Ex Parte Application

SUMMONS

4/9/2015: SUMMONS

COMPLAINT FOR DAMAGES 1. BATTERY; ETC

4/9/2015: COMPLAINT FOR DAMAGES 1. BATTERY; ETC

ORDER AND STIPULATION TO CONTINUE TRIAL, ECT

9/1/2015: ORDER AND STIPULATION TO CONTINUE TRIAL, ECT

DECLARATION OF HEATHER E. HORN AND CORRECTED PROOF OF SERVICE ON MOTION TO BE RELIEVED AS COUNSEL OF RECORD

10/18/2016: DECLARATION OF HEATHER E. HORN AND CORRECTED PROOF OF SERVICE ON MOTION TO BE RELIEVED AS COUNSEL OF RECORD

NOTICE OF WITHDRAWAL OF MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF, PETER PARK AND IMPOSITION OF MONETARY SANCTIONS

10/28/2016: NOTICE OF WITHDRAWAL OF MOTION TO COMPEL INDEPENDENT MEDICAL EXAMINATION OF PLAINTIFF, PETER PARK AND IMPOSITION OF MONETARY SANCTIONS

PALM TREE INVESTMENT'S OPPOSITION TO PLAINTIFF RONALD KIM'S EX PARTE APPLICATION TO CONTINUE TRIAL, REOPEN DISCOVERY, AND AMEND COMPLAINT; ETC.

3/20/2017: PALM TREE INVESTMENT'S OPPOSITION TO PLAINTIFF RONALD KIM'S EX PARTE APPLICATION TO CONTINUE TRIAL, REOPEN DISCOVERY, AND AMEND COMPLAINT; ETC.

NOTICE OF RULING RE MOTION FOR LEAVE TO FILE [PROPOSED] FIRST AMENDED COMPLAINT

4/26/2017: NOTICE OF RULING RE MOTION FOR LEAVE TO FILE [PROPOSED] FIRST AMENDED COMPLAINT

NOTICE OF RULING RE MOTION FOR LEAVE TO FILE [PROPOSED] FIRST AMENDED COMPLAINT

4/27/2017: NOTICE OF RULING RE MOTION FOR LEAVE TO FILE [PROPOSED] FIRST AMENDED COMPLAINT

AMENDMENT TO COMPLAINT

5/25/2017: AMENDMENT TO COMPLAINT

AMENDMENT TO COMPLAINT

5/25/2017: AMENDMENT TO COMPLAINT

AMENDMENT TO COMPLAINT

5/25/2017: AMENDMENT TO COMPLAINT

PROOF OF SERVICE SUMMONS AND FIRST

6/27/2017: PROOF OF SERVICE SUMMONS AND FIRST

DEFENDANT, KEE WHAN HA'S ANSWER TO FIRST AMENDED COMPLAINT; DEMAND FOR JURY TRIAL

7/12/2017: DEFENDANT, KEE WHAN HA'S ANSWER TO FIRST AMENDED COMPLAINT; DEMAND FOR JURY TRIAL

SPECIALLY APPEARING DEFENDANTS, HANKOOK PROPERTY MANAGEMENT, INC., IL KYU CHOI, JAE WON KIM, AREUM YANG AND DONG JOON SHIN'S REPLY TO OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED

8/9/2017: SPECIALLY APPEARING DEFENDANTS, HANKOOK PROPERTY MANAGEMENT, INC., IL KYU CHOI, JAE WON KIM, AREUM YANG AND DONG JOON SHIN'S REPLY TO OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED

NOTICE OF MOTION AND MOTION OF SPECIALLY APPEARING DEFENDANTS, HANKOOK PROPERTY MANAGEMENT, INC., IL KYU CHOI, JAE WON KIM, AREUM YANG AND; ETC.

9/8/2017: NOTICE OF MOTION AND MOTION OF SPECIALLY APPEARING DEFENDANTS, HANKOOK PROPERTY MANAGEMENT, INC., IL KYU CHOI, JAE WON KIM, AREUM YANG AND; ETC.

ORDER RE: SPECIALLY-APPEARING DEFENDANTS' MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT

10/24/2017: ORDER RE: SPECIALLY-APPEARING DEFENDANTS' MOTION TO QUASH SERVICE OF SUMMONS AND FIRST AMENDED COMPLAINT

159 More Documents Available

 

Docket Entries

  • 06/21/2019
  • at 08:30 AM in Department 56; Hearing on Ex Parte Application (FOR ORDER CONTINUING HEARING DATE AND TRIAL DATE; MEMORANDUM OF POINTS AND AUTHORITIES) - Held

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  • 06/21/2019
  • Ex Parte Application (PLAINTIFF?S NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION FOR ORDER CONTINUING HEARING DATE AND TRIAL DATE; MEMORANDUM OF POINTS AND AUTHORITIES); Filed by Ronald Kim, an Individual (Plaintiff)

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  • 06/21/2019
  • Minute Order ( (Hearing on Ex Parte Application FOR ORDER CONTINUING HEARING ...)); Filed by Clerk

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  • 02/26/2019
  • Declaration (of Kee Whan Ha in support of Motion for Summary Judgment); Filed by Kee Whan Ha (Defendant)

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  • 02/19/2019
  • at 08:30 AM in Department 56; Case Management Conference - Held

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  • 02/19/2019
  • at 08:30 AM in Department 56; Hearing on Motion for Summary Judgment (adjudication) - Held - Continued

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  • 02/19/2019
  • Minute Order ( (Case Management Conference; Hearing on Motion for Summary Jud...)); Filed by Clerk

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  • 02/19/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Clerk

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  • 01/24/2019
  • Opposition ( TO DEFENDANT?S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES; EXHIBITS; DECLARATION OF NICHOLAS DAGHER, ESQ.; EXHIBITS); Filed by Ronald Kim, an Individual (Plaintiff)

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  • 01/16/2019
  • at 08:30 AM in Department 56; Case Management Conference - Not Held - Continued - Court's Motion

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377 More Docket Entries
  • 08/13/2015
  • Opposition Document; Filed by Ronald Kim, an Individual (Plaintiff); Peter Park (Plaintiff)

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  • 08/13/2015
  • OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

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  • 05/28/2015
  • Motion to Strike; Filed by Palm Tree Investments, Inc. (Defendant)

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  • 05/28/2015
  • NOTICE OF MOTION AND MOTION OF DEFENDANT, PALM TREE INVESTMENT, INC. TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

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  • 05/26/2015
  • Answer; Filed by Defendant/Respondent

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  • 05/26/2015
  • DEFENDANT' KEE WHAN HA'S ANSWER TO PLAINTIFFS UNVERIFIED COMPLAINT

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  • 04/09/2015
  • COMPLAINT FOR DAMAGES 1. BATTERY; ETC

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  • 04/09/2015
  • SUMMONS

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  • 04/09/2015
  • Summons; Filed by Ronald Kim, an Individual (Plaintiff); Peter Park (Plaintiff)

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  • 04/09/2015
  • Complaint; Filed by Ronald Kim, an Individual (Plaintiff); Peter Park (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: BC578348    Hearing Date: November 23, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

RONALD KIM, etc.,

Plaintiff,

vs.

PALM TREE INVESTMENT, INC., etc., et al.,

Defendants.

CASE NO.: BC578348

[TENTATIVE] ORDER RE: MOTION TO DISMISS FOR FAILURE TO BRING TO TRIAL

Date: November 23, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant Palm Tree Investment, Inc. (“Moving Defendant”)

The Court has considered the moving papers. No opposition papers were filed.

BACKGROUND

The complaint in this action was filed on April 9, 2015. Moving Defendant filed a motion (the “Motion”) for an order to dismiss this action due to Plaintiff’s failure to bring this action to trial within five years and six months.

JUDICIAL NOTICE

The Court GRANTS Moving Defendant’s request for judicial notice.

DISCUSSION

An action shall be brought to trial within five years after the action is commenced against the defendant. (Code Civ. Proc. § 583.310.) In computing the time within which an action must be brought to trial, there shall be excluded the time during which any of the following conditions exist: (1) the jurisdiction of the court to try the action was suspended; (2) prosecution or trial of the action was stayed or enjoined; or (3) bringing the action to trial, for any other action, was impossible, impracticable, or futile. (Code Civ. Proc. § 583.340(a)-(c).) An action must be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time set forth in Code Civ. Proc. § 583.310. (Code Civ. Proc. § 583.360.) The time period set forth in Code Civ. Proc. § 583.310 begins to run on the date the original complaint in an action is filed. (Davalos v. County of Los Angeles (1983) 142 Cal.App.3d 57, 63.) The California Judicial Council has enacted Emergency Rule 10, in response to the COVID-19 pandemic, which states that the time in which to bring an action to trial—including under Code Civ. Proc. § 583.310—is extended by six months for a total time of five years and six months.

Here, the Court finds that including the extension provided in Emergency Rule 10, Plaintiff was required to bring this action to trial by October of 2020. Without the extension provided by Emergency Rule 10, Plaintiff would have been required to commence trial by April 9, 2020. Due to the current COVID-19 pandemic, however, it is impossible for Plaintiff to bring this action to jury trial due to pandemic-related health precautions as well as restrictions on jury trials. It has been impossible for Plaintiff to bring this case to jury trial since March 16, 2020, and that impossibility will extend to at least January 21, 2021, when jury trials on non-preference matters will re-commence. For that period of time, civil jury trials have been effectively stayed or the period of time to bring the action to trial tolled. Under Code Civ. Proc. § 583.350, when less than six months would otherwise remain to bring an action to trial after the end of the stay or tolling period, the actions shall not be dismissed if it is brought to trial within six months after the end of the period of tolling. For purposes of bringing this action to trial, the five years has not yet run.

Therefore, the Court DENIES the Motion.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 23rd day of November 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC578348    Hearing Date: August 13, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

RONALD KIM, etc.,

Plaintiff,

vs.

PALM TREE INVESTMENT, INC., etc., et al.,

Defendants.

CASE NO.: BC578348

[TENTATIVE] ORDER RE: MOTION TO TAX COSTS

Date: August 13, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Ronald Kim

RESPONDING PARTY: Defendant Kee Whan Ha

The Court has considered the moving and opposition papers. No reply papers were filed.

BACKGROUND

Plaintiffs Ronald Kim and Peter Park (“Park”) filed a complaint against Defendants alleging causes of action against Defendants for: (1) battery; (2) assault; and (3) negligence. Plaintiff’s operative First Amended Complaint (“FAC”) arises from an alleged assault and battery in connection with Plaintiff’s patronage at the Palm Tree LA Restaurant. Plaintiff filed the FAC against Defendants alleging causes of action for: (1) battery; (2) assault; (3) negligence; and (4) negligent supervising, supervision, training, or retention.

On November 1, 2019, the Court granted Defendant’s motion for summary judgment. On January 30, 2020, the Court entered judgment in favor of Defendant and against Plaintiff. On February 11, 2020, Defendant filed a memorandum of costs. Defendant seeks $28,300.16 in costs for the following categories of costs: (1) filing and motion costs; (2) deposition costs; (3) service of process; (4) witness fees; and (5) other.

Plaintiff filed a motion to tax Defendant’s claimed costs pursuant to California Code of Civil Procedure, Section 1033.5. Plaintiff asserts that Defendant is only entitled to recover only those reasonable costs against him and that the costs must be apportioned between himself and Park. Plaintiff contends that: (1) Defendant has the burden of proof to establish the recoverability of each item of costs claimed in their memorandum of costs; (2) Defendant can only recover as costs those expenses which are specifically authorized by statute; (3) the Court should tax any item for which costs claimed are not reasonable in amount; and (4) the claimed costs are subject to apportionment.

Defendant opposes Plaintiff’s motion and contends that: (1) Plaintiff has failed to identify the costs that he seeks to challenge and has failed to submit a supporting declaration; and (2) Plaintiffs did not assert separate theories of liability to warrant apportionment of costs.

DISCUSSION

A prevailing party “includes the party with a net monetary recovery . . . [or] a defendant in whose favor a dismissal is entered.” (Code Civ. Proc. § 1032(a)(4).) “Except as otherwise provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc. § 1032(a)(4).) “Under the common law rule, parties to litigation must bear their own costs. The right to recover any of such costs is determined entirely by statute.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 71.) “In ruling upon a motion to tax costs, the trial court’s first determination is whether the statute expressly allows the particular item and whether it appears proper on its face. If so, the burden is on the objecting party to show [the costs] to be unnecessary or unreasonable.” (Id.) “Where costs are not expressly allowed by the statute, the burden is on the party claiming the costs to show that the charges were reasonable and necessary.” (Id.) “Whether a costs item was reasonably necessary to the litigation presents a question of fact for the trial court.” (Id.) “[T]he items on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred.” (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) “There is no requirement that copies of bills, invoices, statements, or any other such documents be attached to the memorandum. Only if the costs have been put in issue via a motion to tax costs must supporting documentation be submitted.” (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Once a party shows that an expense or cost was necessarily incurred “the burden is upon the moving party to establish the illegality of the challenged items; otherwise the amount demanded in the verified cost bill is controlling.” (Wilson v. Nichols (1942) 55 Cal.App.2d 678, 682-683.) “[T]he losing party has the burden to present evidence and prove that the claimed costs are not recoverable.” (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.) “[Nevertheless], because the right to costs is governed strictly by statute . . . a court has no discretion to award costs not statutorily authorized.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) California Code of Civil Procedure, Section 1033.5(c)(4) gives a court discretion to allow or deny a claimed cost where it is not explicitly allowed or prohibited by Section 1033.5.

Issue No. 1: Procedural Non-Compliance

Defendant contends that Plaintiff’s motion is procedurally deficient, as Plaintiff does not indicate which costs he seeks to tax and Plaintiff failed to submit a supporting declaration.

California Rules of Court, Rule 3.1700(b)(2) says that “[u]nless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” A party seeking to reduce or tax an item of costs has the “burden of proof that the [cost] was unnecessary.” (County of Kern v. Ginn (1983) 146 Cal.App.3d 1107, 1113.) Affidavits must be submitted in support of a motion to tax costs and a court will not rely on mere arguments. (Id. at 1113-1114.)

Plaintiff’s notice of motion indicates that he seeks to tax Defendant’s claimed costs. Plaintiff does not, however, indicate whether he seeks to tax all of Defendant’s claimed costs and he does not refer to each item of costs that he seeks to tax as required by California Rules of Court, Rule 3.1700(b)(2). Moreover, Plaintiff failed to submit a declaration in support of his motion to tax costs. Thus, Plaintiff has not met his burden to tax any costs pursuant to Ginn as his motion is procedurally deficient.

Issue No.2: Apportionment of Costs

Although not necessary to address due to the procedural deficiencies of Plaintiff’s motion, the Court will address Plaintiff’s argument that costs should be apportioned between himself and Park.

“The right to recover costs under California law is governed by statute.” (Smock v. State of California (2006) 138 Cal.App.4th 883, 889.) “Code of Civil Procedure section 1032, subdivision (b), provides that costs are awarded to a prevailing party as a matter of right. Apportionment of costs is authorized, at the court’s discretion, only under those comparatively unusual circumstances when the court must determine which party prevailed.” (Id.)

Here, the Court finds that under Smock apportionment of costs is not warranted because it is clear that Defendant prevailed on his motion for summary judgment. Judgment was entered against Plaintiff and in favor of Defendant. The Court will therefore not apportion costs between Park and Plaintiff.

Therefore, Plaintiff’s motion to tax costs is DENIED.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 13th day of August 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC578348    Hearing Date: February 13, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

RONALD KIM, etc.

Plaintiff,

vs.

PALM TREE INVESTMENT, INC., etc., et al.,

Defendants.

CASE NO.: BC578348

[TENTATIVE] ORDER RE: MOTION TO ENFORCE SETTLEMENT

Date: February 13, 2020

Time: 8:30 a.m.

Dept. 56

FSC: March 30, 2020

Jury Trial: April 6, 2020

MOVING PARTY: Defendant Palm Tree Investment, Inc. (“Moving Defendant”)

The Court has considered the moving papers. No opposition papers were filed.

BACKGROUND

Plaintiff’s First Amended Complaint (“FAC”) arises from an alleged assault and battery in connection with Plaintiff’s patronage at the Palm Tree LA Restaurant. Plaintiff filed the FAC against Defendants alleging causes of action for: (1) battery; (2) assault; (3) negligence; and (4) negligent supervising, supervision, training or retention.

On November 27, 2019, Moving Defendant filed a motion for the Court to enforce the terms of settlement reached between the parties. Moving Defendant asserts that Plaintiff has since obtained new counsel that refuses to comply with the settlement reached between the parties. Moving Defendant’s counsel, John K. Flock, declares that on April 2, 2017, Plaintiff agreed to execute a release of all claims and dismiss his complaint in exchanged for payment of $15,000.00 and Plaintiff set forth the settlement terms in an e-mail to defense counsel. (Flock Decl. at ¶ 2 and Exhibits A and B.)

The Court GRANTS Moving Defendant’s motion to enforce settlement as it is unopposed. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 13th day of February 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC578348    Hearing Date: November 01, 2019    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

RONALD KIM, etc.

Plaintiff,

vs.

PALM TREE INVESTMENT, INC., etc., et al.,

Defendants.

CASE NO.: BC578348

[TENTATIVE] ORDER RE: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Date: November 1, 2019

Time: 8:30 a.m.

Dept. 56

Jury Trial: January 13, 2020

MOVING PARTIES: Defendant Kee Whan Ha (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Ronald Kim

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff’s First Amended Complaint (“FAC”) arises from an alleged assault and battery in connection with Plaintiff’s patronage at the Palm Tree LA Restaurant. Plaintiff filed the FAC against Defendants alleging causes of action for: (1) battery; (2) assault; (3) negligence; and (4) negligent supervising, supervision, training or retention.

On July 19, 2018, Moving Defendant filed a motion for summary judgment, or in the alternative summary adjudication, on the grounds that no triable issue exists as to any material facts against Moving Defendant, and Moving Defendant is entitled to judgment as a matter of law. In the alternative, in the event that summary judgment cannot be granted, Moving Defendant requests summary adjudication as to each cause of action in the FAC.

On January 16, 2019, as indicated by the Court’s order with respect to the motion for summary judgment/adjudication, the Court continued the hearing on Moving Defendant’s motion for summary judgment/adjudication because: (1) in his reply brief, Moving Defendant noted that he had not received Plaintiff’s memorandum of points and authorities in opposition to his motion despite requesting this from Plaintiff; and (2) the Court also did not receive Plaintiff’s memorandum of points and authorities. The Court ordered Plaintiff’s memorandum of points and authorities to be filed and served by January 18, 2019 and indicated that Moving Defendant had the option to file a supplemental reply brief by February 4, 2019. The Court ordered Plaintiff to give notice of the Court’s January 16, 2019 order.

Plaintiff failed to give notice of this Court’s January 16, 2019 order as he was instructed to do by the Court. No notice of ruling was filed with the Court by Plaintiff. Also, Plaintiff’s opposition was not filed until January 24, 2019 despite the Court ordering Plaintiff to file and serve his opposition by January 18, 2019. Even when it was filed, there was no proof of service filed in connection with Plaintiff’s opposition. Plaintiff is ordered to bring evidence of a filed proof of service to the hearing and the Court will discuss the effect, if any, the filed proof of service has on this Court’s ruling.

EVIDENTIARY OBJECTIONS

The Court OVERRULES Plaintiff’s evidentiary objections numbers 1, 2,3, 4, 5, and 6 to Moving Defendant’s evidence in support of his motion for summary judgment, or in the alternative, for summary adjudication.

The Court SUSTAINS Moving Defendant’s evidentiary objections numbers 1 and 2 to the evidence offered in support of Plaintiff’s opposition to Moving Defendant’s motion for summary judgment, or in the alternative, summary adjudication. Even if the Court were to consider Plaintiff’s evidence, it would not allow the finding of a triable issue of material fact.

DISCUSSION

“Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.) “[A] party may not defeat summary judgment by means of declarations or affidavits which contradict that party’s deposition testimony or sworn discovery responses.” (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 459; see also D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 25.) A plaintiff cannot “rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists.” (Code Civ. Proc. § 437c(p)(2).) “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he or she is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 828.) Once the moving party has met its burden, the burden then shifts to the non-moving party to show that there is a triable issue as to any material fact. (Id. at 849.) With respect to a motion for summary judgment “the moving party’s affidavits are strictly construed while those of the opposing party are liberally construed.” (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 990.) With respect to a motion for summary judgment “if it is not set forth in the separate statement, it does not exist.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313.)

“A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the causes of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc. § 437c(p)(2).) By contradicting prior discovery responses, a party cannot create a triable issue of material fact. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087-1090.) The trial court “give[s] great weight to admissions made in discovery and disregard[s] contradictory and self-serving affidavits of the party.” (Id. at 1087.) “Summary adjudication motions are procedurally identical to summary judgment motions.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 859.) “To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the action has no merit or that there is no defense.” (Id.) “[T]he moving defendant may (through factually vague discovery responses or otherwise) point to the absence of evidence to support the plaintiff’s case. When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.) “When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact.” (Id.) “If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.” (Id.)

“[S]ummary judgment law explicitly recognizes deposition transcripts are admissible . . . and decisional authority upholds their use to shift the burden of proof and grant such a motion.” (Villa v. McFerren (1995) 35 Cal.App.4th 733, 749.) California Code of Civil Procedure, Section 437c(e) says that “[S]ummary judgment may denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” In connection with a motion for summary judgment “the burden does not shift to the plaintiff unless the moving defendant first meets its burden of showing that the plaintiff cannot establish at least one element of its cause of action.” (Certain Underwriters at Lloyd’s of London v. Superior Court (1997) 56 Cal.App.4th 952, 956.) “Under [the court’s] holding in Leslie . . . this initial burden can be met by the presentation of factually vague discovery responses or otherwise –but we know of no case suggesting that section 437c permits the moving defendant to meet its initial burden without any showing at all.” (Id.)

Issue No. 1: Battery Cause of Action

Moving Defendant asserts that Plaintiff’s battery cause of action has no merit because Plaintiff cannot produce any admissible evidence that Moving Defendant intended to harm or touch him.

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669.)

Moving Defendant presents the undisputed facts that: (1) prior to arriving at the Palm Tree LA Restaurant, Plaintiff and Peter Park went to the Hudson where they ordered and drank two double scotches (UMF 1); (2) at approximately 12:45 a.m., they arrived at the Palm Tree LA Restaurant and Plaintiff ordered a scotch and began to drink (UMF 2); (3) Plaintiff admits to speaking to the bar manager, Aron Yang and complaining about a female waitress who asked for them to pay a cash tip, explains that Ms. Yang was rude to them, and that the waitres s took his plate away while eating which he considered an insult (UMF 3); (4) Plaintiff attempted to leave the bar with a bottle of scotch in violation of Business and Professions Code Section 23396 (UMF 4); (5) the security guard explained that leaving with a bottle was illegal and demanded that Plaintiff give him the bottle, and Plaintiff returned to the bar area because he was concerned about Mr. Park who was not with him (UMF 5); (6) Mr. Yang spoke to two males sitting at the bar who became agitated and hostile towards them and the two males sitting at the bar then started to yell profanities and threaten Plaintiff (UMF 6); (7) one of the male sitting at the bar grabbed Mr. Park (UMF 7); (8) the other male at the bar grabbed Mr. Park and jumped up (UMF 8); (9) several waiters grabbed Mr. Park and held him down while two males continued to punch Mr. Park causing him to fall to the floor (UMF 9); (9) Plaintiff went to the male who first grabbed Mr. Park and began “punching him” (UMF 10); (10) Plaintiff was then tackled by several waiters who began to punch and kick him (UMF 11); (11) restaurant manager, Paul Hwang, hit him in the chest with a flashlight and told him to leave (UMF 12); and (12) the two security guards grabbed Plaintiff and walked him off the property. (UMF 13.)

Moving Defendant presents evidence that: (1) Kyu Choi is the President and Chief Executive Officer of Palm Tree Investment, Inc. (Moving Defendant’s Compendium of Exhibits in Support of MSJ, Exhibit C at 8:6-8); (2) Moving Defendant never met Plaintiff (Ha Decl. at ¶ 2); (3) Moving Defendant was not present at the Palm Tree LA Restaurant when the incident took place on August 24, 2014 (Id. at ¶ 3); (4) at no time did Moving Defendant manage, own, or control the Palm Tree LA Restaurant (Id. at ¶ 4); (5) at no time did Moving Defendant hire any manager or employee of the Palm Tree LA Restaurant (Id. at ¶ 5); (6) at no time was any manager or employee of the Palm Tree LA authorized to act on behalf of Moving Defendant (Id. at ¶ 6); (7) at no time did Moving Defendant instruct Palm Tree LA Restaurant managers or employees how to perform their jobs (Id. at ¶ 7); and (8) Moving Defendant had no involvement in the August 24, 2014 incident at the Palm Tree LA Restaurant. (Id. at ¶ 8.)

Moving Defendant has met his burden in showing there is no triable issue of material fact with respect to Moving Defendant not touching Plaintiff, causing Plaintiff to be touched, or intending to harm Plaintiff. The burden now shifts to Plaintiff to show that a triable issue of material fact exists.

Plaintiff fails to dispute thirteen of eighteen facts in support of Moving Defendant’s motion for summary judgment. The facts that Plaintiff does in fact dispute—UMF numbers 14, 15, 16, 17, and 18—he fails to dispute with admissible evidence. As such, Plaintiff has not met his burden in showing a triable issue of material fact with respect to the first cause of action for battery.

Issue No. 2: Assault Cause of Action

Moving Defendant asserts that Plaintiff’s assault cause of action has no merit because Plaintiff cannot produce any admissible evidence that Moving Defendant intended to harm or touch him.

“The essential elements of a cause of action for assault are: (1) defendant acted with the intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

The Court incorporates its discussion with respect to the first cause of action for battery above and applies it to the second cause of action for assault.

The Court finds that Plaintiff has failed to show a triable issue of material fact as Plaintiff possesses no admissible evidence to meet its burden in showing a triable issue of material fact with respect to the second cause of action.

Issue No. 3: Negligence Cause of Action

Moving Defendant asserts that Plaintiff’s negligence claim has no merit because Plaintiff cannot produce any admissible evidence to establish that Moving Defendant owed or breached a duty of care.

“The elements of a cause of action are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “[T]he existence of duty is a question of law for the court.” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.) “Duty, being a question of law, is particularly amenable to resolution by summary judgment.” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 465.) A court considers various factors in ascertaining whether a duty of care exists such as “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

The Court incorporates its discussion with respect to the first cause of action for battery above and applies it to the third cause of action for negligence and finds that Moving Defendant has met its burden and has shown that there is no triable issue of fact with respect to the issue of duty or breach because Moving Defendant has provided evidence that: (1) Kyu Choi is the President and Chief Executive Officer of Palm Tree Investment, Inc. (Moving Defendant’s Compendium of Exhibits in Support of MSJ, Exhibit C at 8:6-8); (2) Moving Defendant never met Plaintiff (Ha Decl. at ¶ 2); (3) Moving Defendant was not present at the Palm Tree LA Restaurant when the incident took place on August 24, 2014 (Id. at ¶ 3); (4) at no time did Moving Defendant manage, own, or control the Palm Tree LA Restaurant (Id. at ¶ 4); (5) at no time did Moving Defendant hire any manager or employee of the Palm Tree LA Restaurant (Id. at ¶ 5); (6) at no time was any manager or employee of the Palm Tree LA authorized to act on behalf of Moving Defendant (Id. at ¶ 6); (7) at no time did Moving Defendant instruct Palm Tree LA Restaurant managers or employees how to perform their jobs (Id. at ¶ 7); and (8) Moving Defendant had no involvement in the August 24, 2014 incident at the Palm Tree LA Restaurant. (Id. at ¶ 8.) The burden now shifts to Plaintiff to show a triable issue of material fact.

The Court finds that Plaintiff has failed to show a triable issue of material fact as Plaintiff possesses no admissible evidence whatsoever to meet its burden in showing a triable issue of material fact exists on the issues of duty or breach of said duty.

Issue No. 4: Negligent Supervising, Supervision, Training or Retention Cause of Action

Moving Defendant argues that Plaintiff’s fourth cause of action has no merit because Plaintiff cannot produce evidence that Moving Defendant hired Paul Hwang or any other employee of Palm Tree LA Restaurant.

“An employer may be liable to a third person for the employer’s negligence in hiring or retaining an employee who is incompetent or unfit.” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564-1565.) “Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)

The Court incorporates its above discussion with respect to the third cause of action for negligence and applies it to the fourth cause of action for negligent supervising, supervision, training, or retention. Moving Defendant has met his burden in showing that there is no triable issue of material fact with respect to the issue of Moving Defendant hiring or retaining an employee of Palm Tree LA Restaurant because Moving Defendant presents evidence that: (1) at no time did Moving Defendant manage, own, or control the Palm Tree LA Restaurant (Ha Decl. at ¶ 4); (2) at no time did Moving Defendant hire any manager or employee of the Palm Tree LA Restaurant (Id. at ¶ 5); (3) at no time was any manager or employee of the Palm Tree LA authorized to act on behalf of Moving Defendant (Id. at ¶ 6); (4) at no time did Moving Defendant instruct Palm Tree LA Restaurant managers or employees how to perform their jobs (Id. at ¶ 7); and (5) Moving Defendant had no involvement in the August 24, 2014 incident at the Palm Tree LA Restaurant. (Id. at ¶ 8.) The burden now shifts to Plaintiff to show a triable issue of material fact.

The Court finds that Plaintiff has failed to show a triable issue of material fact as Plaintiff possesses no admissible evidence whatsoever to meet its burden in showing a triable issue of material fact with respect to the fourth cause of action.

Issue No. 5: Substantial Factor

Moving Defendant asserts that none of Plaintiff’s causes of action has any merit because Plaintiff cannot establish by admissible evidence that Moving Defendant was a substantial factor in causing his injuries.

“For a condition to be a cause of an injury, it must be the cause in fact of the injury.” (Muffett v. Royster (1983) 147 Cal.App.3d 289, 307.) “California has definitively adopted the substantial factor test of the Restatement Second of Torts for cause-in-fact determinations.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969.) “Under that standard, a cause in fact is something that is a substantial factor in bringing about the injury.” (Id.) “The substantial factor standard generally produces the same results as does the but for rule of causation which states that a defendant’s conduct is cause of the injury if the injury would not have occurred but for that conduct.” (Id.) “If the conduct which is claimed to have caused injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries.” (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 696.)

The Court incorporates the entirety of its discussion pursuant to the first cause of action for battery and applies it here to the discussion with respect to Moving Defendant being a substantial factor in causing Plaintiff’s injuries.

Plaintiff possesses no admissible evidence as explained above. As such, Plaintiff cannot show that a triable issue exists with respect to Moving Defendant being a substantial factor in bringing about his injuries.

The Court GRANTS Moving Defendant’s motion for summary judgment in full.

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 1st day of November 2019

Hon. Holly J. Fujie

Judge of the Superior Court

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