Tentative Rulings

Case Number: BC672825    Hearing Date: April 16, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Plaintiff Jee Hoon Choi’s Motion for Leave to File Second Amended Complaint is DENIED.

FACTUAL BACKGROUND

This is an action for fraud. The Complaint alleges as follows. Plaintiff Jee Hoon Choi (“Choi”) is the brother of the late Jee Hyun Han (“Jee Hyun”), who died in October 2016 with assets. (Compl. ¶¶ 8-10.) Choi owns and operates a company in Hong Kong and formed a company in Korea named Dong In Ga. (Compl. ¶ 13.) Defendant Romy Tiffanie Han (“Han”) has filed numerous lawsuits in Korea to take control of Choi’s company and created a fraudulent handwritten will of Hyun and living trust to try to take Choi’s company assets in Korea . (Compl. ¶¶ 11-12.) The Complaint alleges that Han is using the US probate court system, regarding the fraudulent will and living trust, to influence the courts in Korea and take Choi’s corporate interests. (Compl. ¶ 16.)

In the Cross-Complaint (“XC”), Han alleges that the corporations are Hyun’s assets, and Han is Hyun’s beneficiary. (XC ¶¶ 7-9.)

PROCEDURAL HISTORY

Choi filed the original Complaint on August 18, 2017, alleging a single cause of action for fraud. On September 8, 2017, Choi filed the First Amended Complaint (“FAC”) alleging the same cause of action for Fraud.

Han filed the XC on November 29, 2017, alleging fifteen causes of action:

1. Fraud

2. Conversion

3. Conspiracy to commit fraud

4. Prima facie tort

5. IIED

6. Intentional interference with contract

7. Intentional interference with prospective economic advantage

8. Negligence interference with prospective economic advantage

9. Unfair competition

10. Unjust enrichment

11. Imposition of constructive trust

12. Accounting

13. Negligence

14. Breach of fiduciary duty

15. Tortious interference with expected inheritance

On February 1, 2018, Choi filed an Answer to the XC.

On December 11, 2018, Han filed an Answer to the Complaint.

On October 6, 2020, this Court granted Han’s Motion to Compel Overruling Objections and Compelling Further Responses to Request for Production of Documents, Set Seven.

On November 25, 2020, this Court granted Plaintiff’s counsel’s Motion to be Relieved as Counsel.

On March 16, 2021, Choi filed the instant Motion for Leave to File Second Amended Complaint.

On April 5, 2021, Han filed an Opposition.

On April 9, 2021, Choi filed a Reply.

DISCUSSION

1. MOTION FOR LEAVE TO AMEND COMPLAINT

Code Civ. Proc.¿section¿473¿subd. (a)(1)¿states that:¿¿¿ 

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.¿¿ 

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co.¿(2006) 142¿Cal.App.4th¿636, 642.)¿¿¿ 

“Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [Citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here¿inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali¿v. Farmers Group, Inc.¿(1996) 48¿Cal.App.4th¿471, 487.)¿¿¿ 

Pursuant to California Rule of Court Rule 3.1324, “[a] motion to amend a pleading before trial must: (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”¿¿ 

Such a motion must include a supporting declaration stating, “(1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (CRC Rule 3.1324,¿subd. (b).)¿¿ 

Here, Choi seeks leave to file a Second Amended Complaint. However, Choi does not state the proposed added/deleted allegations by page, paragraph, and line number (or by redline, in the alternative) as required by California Rules of Court Rule 3.1324. The Court can deduce that the proposed additions are extensive because the FAC alleged a single cause of action for fraud, and the proposed Second Amended Complaint (“SAC”) alleges thirteen causes of action. The Court cannot assess the proposed SAC without the page, paragraph, and line numbers of each change.

Choi has filed a supporting declaration pursuant to Rule 3.1324(b). This declaration of Jinhee Kim (“Kim”), while it addresses the fact that Kim became Choi’s new counsel on January 5, 2021, does not address why Choi’s request to file an SAC is being made nearly four years after the filing of the FAC. Kim declares that Defendants will not be prejudiced by the filing of an SAC. (Kim Decl., ¶ 17.) However, Kim does not provide any details as to how Defendants would not be prejudiced by Choi adding twelve causes of action and multiple new plaintiffs to the complaint in the final year before the deadline to bring the case to trial pursuant to Code of Civil Procedure section 583.310. Therefore, the Court cannot grant this Motion based on the information provided at this time.

Accordingly, Plaintiff Choi’s Motion for Leave to File Second Amended Complaint is DENIED.

Dated: April 16, 2021

___________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC672825    Hearing Date: January 05, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendant Romy Tiffanie Han’s Motion for Terminating Sanctions is GRANTED. The Court strikes the Complaint/First Amended Complaint and Jee Hoon Choi’s Answer to the Cross-Complaint. The Court further orders that Je Hoon Choi is precluded from introducing any evidence at the trial of the cross complaint in this action that Jee Hoon Choi should have produced in response to this Court’s October 6, 2020 Order.

FACTUAL BACKGROUND

This is an action for fraud. The Complaint alleges as follows. Plaintiff Jee Hoon Choi (“Choi”) is the brother of the late Jee Hyun Han (“Jee Hyun”), who died in October 2016 with assets. (Compl. ¶¶ 8-10.) Choi owns and operates a company in Hong Kong and formed a company in Korea named Dong In Ga. (Compl. ¶ 13.) Defendant Romy Tiffanie Han (“Han”) has filed numerous lawsuits in Korea take control of Choi’s company and created a fraudulent handwritten will of Hyun and living trust to try to take Choi’s company assets in Korea . (Compl. ¶¶ 11-12.) The Complaint alleges that Han is using the US probate court system, regarding the fraudulent will and living trust, to influence the courts in Korea and take Choi’s corporate interests. (Compl. ¶ 16.)

In the Cross-Complaint (“XC”), Han alleges that the corporations are Hyun’s assets, and Han is Hyun’s beneficiary. (XC ¶¶ 7-9.)

PROCEDURAL HISTORY

Choi filed the original Complaint on August 18, 2017, alleging a single cause of action for fraud. On September 8, 2017, Choi filed the First Amended Complaint (“FAC”) alleging the same cause of action for Fraud.

Han filed the XC on November 29, 2017, alleging fifteen causes of action:

1. Fraud

2. Conversion

3. Conspiracy to commit fraud

4. Prima facie tort

5. IIED

6. Intentional interference with contract

7. Intentional interference with prospective economic advantage

8. Negligence interference with prospective economic advantage

9. Unfair competition

10. Unjust enrichment

11. Imposition of constructive trust

12. Accounting

13. Negligence

14. Breach of fiduciary duty

15. Tortious interference with expected inheritance

On February 1, 2018, Choi filed an Answer to the XC.

On December 11, 2018, Han filed an Answer to the Complaint.

On October 6, 2020, this Court granted Han’s Motion to Compel Overruling Objections and Compelling Further Responses to Request for Production of Documents, Set Seven.

On November 25, 2020, this Court granted Plaintiff’s counsel’s Motion to be Relieved as Counsel.

On December 2, 2020, Han filed the instant Motion for Sanctions.

No Opposition has been filed.

On December 29, 2020, Han filed a Reply, noting she received no Opposition.

DISCUSSION

1. MOTION FOR TERMINATING SANCTIONS

The court may impose terminating sanctions, include an order striking pleadings, and order dismissing an action, or an order rendering judgment by default against a party, for conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030.) This conduct include “[f]ailing to respond or to submit to an authorized method of discovery,” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., § 2023.010.)  

Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)  Dismissal is a drastic measure, and terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective.  (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.)  “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.”  (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) 

A court may also impose issue, evidentiary, or monetary sanctions upon a party that has engaged in misuse of the discovery process. (Code Civ. Proc. § 2023.030.) “Absent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.” (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559.) 

Han moves for terminating sanctions because Choi has refused to comply with this Court’s October 6, 2020 order. (Motion at p. 11.) Han contends that since 2017 she has propounded seven sets of requests for production of documents with 222 individual requests for productions and four sets of special interrogatories with 92 individual interrogatories. (Motion at p. 11.) Han argues that in response to all discovery, “Choi has responded with delay and a never ending series of objections[.]” (Motion at p. 11.) Choi has not complied with his discovery obligations, orders made at the informal discovery conferences on August 15, 2019 and August 6, 2020, and the Court’s October 6, 2020 order. (Motion at pp. 11-12.) She argues that terminating sanctions are warranted due to the imminence of trial. (Motion at p. 12.)

The Court finds that Choi’s actions constitute discovery misconduct within the meaning of Code of Civil Procedure § 2023.010, subd. (d) [“Failing to respond or to submit to an authorized method of discovery.”]. On October 6, 2020, this Court ordered Choi to “serve substantive and complete responses, without objections, and [to] produce all documents responsive to Request for Production Nos. 131-222 within thirty (30) days of this Order.” (10/6/20 Order.) No such responses have been served. Further, Choi has engaged in discovery delays throughout the course of this action. On August 15, 2019, at an Informal Discovery Conference, this Court conferred with counsel and expressed concern on the record with Choi’s delay in exchanging documents and reminded the parties that it is the practice of this Court to impose sanctions, including terminating sanctions, for failure to participate in the discovery process. (Minute Order, 8/15/19.)

The Court’s October 6, 2020 order was clear and Choi’s failure to serve responses to the Request for Production amounts to willful disobedience of the Court’s orders. Choi has not opposed this motion, and there is nothing in the record constituting good cause to excuse Choi’s failure to obey the order. The Court does not believe that any lesser sanctions will compel compliance with the Court’s order.

Accordingly, the Motion for Terminating Sanctions is GRANTED. The Court strikes the Complaint/First Amended Complaint and Choi’s Answer to the Cross-Complaint. The Court further orders that Je Hoon Choi is precluded from introducing any evidence at the trial of the cross complaint in this action that Jee Hoon Choi should have produced in response to this Court’s October 6, 2020 Order.

Defendant/Cross Complainant to give notice.

Dated: January 5, 2021

___________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC672825    Hearing Date: November 25, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

1. MOTION TO BE RELIEVED AS COUNSEL¿

   Cal. Code of Civ. Proc. section 284 states that “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment or final determination” upon either consent of both client and attorney, or upon the order of the court under application of either the client of the attorney, after notice from one to the other. Cal. Rule of Court 3.1362 states the requirements for a motion to be relieved as counsel under Code Civ. Proc. section 284. No memorandum is required, but the motion must be accompanied by (1) a declaration stating why a motion has been brought instead of filing a consent (without compromising attorney-client confidentiality), (2) proof of service of the motion, and (3) all hearing dates scheduled in the action or proceeding, including the date of trial, if known. Additionally, “[t]he proposed order relieving counsel must be prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel--Civil (form MC-053) and must be lodged with the court with the moving papers.”¿

   The present motion is filed by Attorneys Timothy Yoo (“Yoo”) and Joyce Choi (“Choi”) of the law firm Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C., attorneys for Plaintiff and Cross-Defendant Jee Hoon Choi. Yoo and Choi have submitted a declaration stating that there has been a breakdown in communication between the attorneys and client, Jee Hoon Choi. The motion complies with the above requirements. No oppositions have been filed to the Motion. 

   Accordingly, Attorney Attorneys Timothy Yoo and Joyce Choi of the law firm Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, P.C., attorneys for Plaintiff and Cross-Defendant Jee Hoon Choi’s Motion to be Relieved as Counsel is GRANTED.

   Date: November 25, 2020

   _______________________________

   Hon. Robert S. Draper

   Judge of the Superior Court