Tentative Rulings

Case Number: ****2825 Hearing Date: August 2, 2022 Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Cross-Defendant Jee Joon Choi’s Motion for Judgment on the Pleadings is GRANTED. Cross-Complainant is granted thirty days leave to file a First Amended Cross-Complaint.

FACTUAL BACKGROUND

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

The Cross-Complaint alleges that Choi is working with Non-Party Young Eun Choi (“Young”) to divert funds away from Han for their own benefit. (XC 8.) Jee and Young have “engaged in specific actions to interfere with [Han’s] efforts to marshal [Decedent’s] assets in Korea, and receive all income derived therefrom, as she is obligated to do and report in the Probate Matter.” (XC 9.)

PROCEDURAL HISTORY

On August 18, 2017, Choi filed the original Complaint alleging a single cause of action for fraud.

On September 8, 2017, Choi filed the First Amended Complaint alleging the same cause of action for fraud.

On November 29, 2017, Han filed the Cross-Complaint asserting fifteen causes of action:

1. Fraud;

2. Conversion;

3. Conspiracy to Commit Fraud;

4. Prima Facie Tort;

5. Intentional Infliction of Emotional Distress;

6. Intentional Interference with Contract;

7. Intentional Interference with Prospective Economic Advantage;

8. Negligent 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; and

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 May 19, 2021, this Court granted Han’s Motion for Summary Judgment.

On June 15, 2021, this Court entered judgment.

On August 12, 2021, Choi filed a Notice of Appeal.

On July 11, 2022, Choi filed the instant Motion for Judgment on the Pleadings.

On July 20, 2022, Han filed an Opposition.

On July 26, 2022, Choi filed a Reply.

DISCUSSION

I. MOTION FOR JUDGMENT ON THE PLEADINGS

A defendant may file a motion for judgment on the pleadings after filing an answer and the time to demur has expired. (Code Civ. Proc., 438(f)(2).) A defendant may move for judgment on the pleadings on the ground that the “complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., 438(c)(1)(B)(ii).)

Thus, the standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Ibid.)

Judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. The judge hearing the motion cannot consider discovery admissions or other evidence controverting the pleadings. Rather, the pleading under attack must be accepted as true. (Code Civ. Proc., 438(d); Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516; Lance Camper Mfg. Corp. v. Republic Indem. Co. of America (1996) 44 Cal.App.4th 194, 198; Cloud v. Northrop Grumman. Corp. (1998) 67 Cal.App.4th 995, 999.)

A motion for judgment on the pleadings may be granted with or without leave to file an amended complaint. (Code Civ. Proc., 438(h)(1).) If the former, the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint. (Code Civ. Proc., 438(h)(2).) Leave to amend should be granted if there is any reasonable possibility that plaintiff can state good cause of action. (Eckler v. Neutrogena Corporation (2015) 238 Cal.App.4th 433.) Leave to amend a complaint is entrusted to the sound discretion of the trial court. (Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal.App.4th 497.)

Similar to where a demurrer is sustained, the plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173, quoting Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79, internal quotations omitted.)

Here, Choi moves for judgment on the pleadings, arguing that Han does not have standing to bring the action in her individual capacity. Choi notes that upon a decedent’s death, the right to bring a claim or an action lies with the personal representative. (Holland v. Knight (1917) 177 Cal. 507.) Choi contends that, though the Cross-Complaint alleges that Han has been appointed as the sole executor of Decedent’s will in the probate matter (XC at p.2), the action was brought by Han in her individual capacity. Accordingly, Choi argues, Han does not have standing to bring the Cross-Complaint, and his Motion for Judgment on the Pleadings must be granted.

In opposition, Han makes two arguments.

1. Individual Harm

First, Han argues that the Motion should be denied, as the Cross-Complaint repeatedly alleges harm caused to Han as an individual, not just to the Estate. However, as Choi notes in the Reply, while the Complaint does allege damage to Han as an individual, the factual allegations preceding those individual damage claims clearly indicate that the harm caused to Han is related to disputes over the Estate, not to her as an individual.

Moreover, the Cross-Complaint alleges that this “matter arises out of a deceptive, shameful, and manipulative scheme by cross-defendant, who are aunt and uncle of [Han], to deprive [Han] of her inheritance from her biological mother in the approximate sum of $61,000,000 and to divert such assets for their own benefit. (XC at p. 2.) Accordingly, it is clear that the gravamen of the Cross-Complaint relates to harm caused to Decedent’s estate, rather than to Han as an individual.

2. Probate Code Section 850

Next, Han argues that she has standing to bring the Cross-Complaint pursuant to Probate Code Section 850.

Probate Code sections 850 to 859, of division 2, part 19, govern conveyances or transfers of property claimed to belong to a decedent or other person. (Estate of Kraus (2010) 184 Cal.App.4th 103, 110.) In other words, Prob C 850, et seq., provides a mechanism for court determination of rights in property claimed to belong to a decedent or another person. (Estate of Young (2008) 160 Cal.App.4th 62, 75.) Probate Code section 850 permits, for example, the personal representative or any interested person to file a petition in probate requesting a court order when a decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another. (Prob C 850(a)(2)(C); Estate of Yool (2007) 151 Cal.App.4th 867, 873 – 874.)

As Choi notes in his reply, Han is not petitioning the Court for adjudication of adverse claims to Decedent’s property, but rather alleging that Choi is interfering with her role as executor of Decedent’s estate, so section 850 does not apply.

3. Leave to Amend

Finally, Han asks that, should the instant motion be granted, she is granted leave to amend to bring the Cross-Complaint as the representative for Decedent’s estate.

In response, Choi argues that leave to amend is improper. Choi contends that the statute of limitations has run, and that adding Han as a representative of the estate would “seek to enforce an independent right or impose greater liability upon the defendant,” therefore not relating back to the original Cross-Complaint. (Reply at p. 6; quoting Bartalo v. Sup.Ct (1975) 51 Cal.App.3d 526, 533.)

However, Cox v. San Joaquin Light & Power Corp. ((1917) 33 Cal.App. 522), is on point here.

In Cox, plaintiff brought a wrongful death claim against her former husband’s employer as an individual. Two years later, she sought leave to amend the Complaint, seeking only to set forth that plaintiff was the administratix of her former husband’s complaint, and that she brought suit in that capacity. (Cox, 33 Cal.App, 523.) Defendant opposed, arguing that the amendment would be a fundamental change of the cause of action. The trial court granted leave to amend. The Court of Appeal affirmed, holding:

[T]he change effected by the amendment is obviously in no just sense the bringing of a new action. It is one of form rather than of substance, and in the interests of justice is to be treated as such, rather than to adopt a view which would result in an irretrievable bar to all remedy. Under the modern doctrine, the discretionary power of the court to such end is to be liberally exerted in favor of, rather than against, the disposition of a case upon its merits; and [the court] is entirely satisfied after further examination of the question induced by the reargument that. . . the defect involved is one which may be cured by amendment. (Cox, 33 Cal.App, 527.)

Here, as in Cox, amending the Cross-Complaint to be brought by Han in her representative capacity is a question of form that in no way affects Choi’s legal rights. Forbidding that amendment due to procedural questions would be contrary to the interests of justice.

Finally, the Court notes that, even were Cox not directly on point, Choi’s invocation of the statute of limitations nearly four years after he filed an Answer to the same pleading clearly constitutes good cause for equitable estoppel. As such, leave to amend would be granted even without Cox.

Accordingly, Cross-Defendant’s Motion for Judgment on the Pleadings is GRANTED. Cross-Complainant is granted thirty days to file a First Amended Cross-Complaint brought in her representative capacity.

DATED: August 2, 2022

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: ****2825 Hearing Date: March 10, 2022 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 Attorney Jinhee Kim (“Kim”) of the law firm Jinhee Kim and Jipyong LLC, attorney for Plaintiff/Cross-Defendant Jee Hoon Choi (“Choi”). Kim has submitted a declaration stating that the firm and the attorney of record have been dismissed by Choi and that there is no attorney-client relationship at this time. Kim states that Choi is looking for new representation but has declined to sign form MC-050. The motion complies with the above requirements. No oppositions have been filed to the Motion.

Accordingly, Attorney Jinhee Kim of the law firm Jinhee Kim and Jipyong LLP, attorney for Plaintiff/Cross-Defendant Jee Hoon Choi’s Motion to be Relieved as Counsel is GRANTED.

Date: March 9, 2022

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: ****2825 Hearing Date: March 9, 2022 Dept: 78

Matt--you may not know it, but Cynthia and Grace do. While Dick and Lyla and their family were and have been close to us for over 45 years in the sense that they were living in one of the few houses occupied up here when we started to build our house across the street, we actually weren't "as close" as others, people in the church and throughout Los Angeles and beyond whose lives were touched in ways disallowed probably never even just by having known to him are

Case Number: ****2825    Hearing Date: May 19, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Defendant and Cross-Complainant Romy Tiffanie Han’s Motion for Summary Judgment on the First Amended complaint is GRANTED.

FACTUAL BACKGROUND

This is an action for fraud. The First Amended Complaint alleges as follows. Plaintiff Jee Hoon Choi (“Choi”) is the brother of the late Jee Hyun Han (“Jee Han”), who died in October 2016 with assets. (FAC ¶¶ 8-10.) Choi owns and operates a company in Hong Kong and formed a company in Korea named Dong In Ga. (FAC ¶ 13.) Defendant Romy Tiffanie Han (“Han”) has filed numerous lawsuits in Korea attempting to take control of Choi’s company and has created a fraudulent handwritten will of Hyun and living trust to try to take Choi’s company assets in Korea . (FAC ¶¶ 11-12.) The Complaint alleges that Han is using the fraudulent will and living trust in the US probate court system to influence the courts in Korea and take Choi’s corporate interests. (FAC ¶ 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 March 4, 2021, Han filed the instant Motion for Summary Judgment.

On May 5, 2021, Plaintiff filed an Opposition.

On May 14, 2021, Han filed a Reply.

DISCUSSION

1. OBJECTIONS

   Han objects to the Declaration of Choi filed in Opposition to her Motion for Summary Judgment. The Court GRANTS Objections Nos. 2, 4-9, 11, 15-16, 22 on the grounds of lack of personal knowledge and lack of foundation; 10, 12-13, 18 on the grounds of hearsay and lack of personal knowledge; 19-21, 23 on the grounds of litigation privilege and lack of personal knowledge.

   The Court DENIES Objections Nos: 1, 3, 14, 17, 24, and 25, on the grounds that the Court finds the objections of irrelevance to be insufficient grounds to grant an objection to these selections.

2. REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code ; 452, subds. (c), (d), and (h).)

Han requests judicial notice of the First Amended Complaint filed in this action, and two Orders from the probate matter, Case No. 17STPB03652. The Court GRANTS these requests.

1. MOTION FOR SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. ; 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. ; 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. ; 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Neither a moving or responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

1. First Cause of Action – Fraud

The FAC alleges that in February 2016, Plaintiff Choi’s sister, Jee Han, was in failing health and contacted Choi to find her estranged daughter, Defendant Han. (FAC ¶ 7.) Jee Han had not seen her daughter for over 30 years, since Han was 5 years old. (FAC ¶ 8.) After Jee Han died with assets in September 2016, Han sued Choi in Korea to take Choi’s company and its assets. (FAC ¶ 10.) The Korean court rule in favor of Choi. (FAC ¶ 10.) The FAC alleges that Han fraudulently created a false will and living trust to attempt to take Choi’s company. (FAC ¶¶ 11-12.) The FAC alleges that Han “continues to adjudicate this matter in Korea by fraudulently using fake documents created in the United States and the United States Probate courts to influence a valid Korean Judgment.” (FAC ¶ 17.)

In her declaration in support of the Motion, Han declares that Jee Hahn executed the two wills which Choi claims are “fake documents” and that true and correct copies of those documents are attached to her declaration.[1] Han established a prima facie case that the wills are valid and not false or fraudulent. This requires Choi to submit admissible evidence showing that there is a triable issue of material fact on the validity of the wills. The only “evidence” Choi has submitted however is paragraph 12 of his declaration which begins “I am informed and believe that…” and proceeds to recount not a discussion with Jee Han but a claimed conversation with his girlfriend in which she allegedly told him that she had had a conversation with Jee Han and Jee Han told her that she did not want to sign the documents.. This double hearsay is neither admissible nor sufficient to raise a triable issue of material fact on the issue of the authenticity of the wills.

With respect to Choi’s fraudulent misrepresentation claim, the elements of a cause of action for fraudulent misrepresentation are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. ; (See ;Lazar v. Superior Court ;(1996) 12 Cal.4th 631, 638.) ;

Han states in paragraph 13 of her declaration that she had no communications with Choi before Jee Han’s death regarding Jee Han’s will or estate plan. This is sufficient to establish a prima facie case on the fraudulent misrepresentation claim. But instead of contesting this fact, Choi in his declaration confirms it, recounting in paragraph 20 only a conversation he had with Han in November 2016 in which Han advised him of the wills and asked for his help in locating assets of Jee Han. Since, as shown by the declarations of both Han and Choi, this conversation was immediately before the barrage of lawsuits in Korea between them, Choi can hardly claim that he relied upon anything said in this conversation, nor has he attempted to do so. And, as the court in Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1557 stated, “It is essential ... that the person complaining of fraud actually have relied on the alleged fraud, and suffered damages as a result.” On this basis alone, therefore, Han is entitled to summary judgment on Choi’s cause of action for fraud.[2]

As set forth above, one basic problem with Choi’s attempt to avoid summary judgment is the fact that Han has presented admissible evidence rebutting each claim of fraud Choi makes in his complaint and Choi has submitted no admissible evidence which establishes that there is a triable issue of a material on any claim of fraud. There is also, however, a fundamental legal problem with the causes of action Choi is attempting to maintain.

Each of Choi’s claims are based either on documents presented by Han in the California probate proceedings or claims made by Han in the Korean courts. These statements and documents are clearly protected by the litigation privilege applicable under California Civil Code section 47. And this privilege is absolute. As the Court stated in People ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 958, as modified (Feb. 1, 2008), “the absolute privilege is interpreted broadly to apply to any communication, not just a publication, having ‘some relation’ to a judicial [or quasi-judicial] proceeding,” irrespective of the communication's maliciousness or untruthfulness.”

Accordingly, Defendant and Cross-Complainant Romy Tiffanie Han’s Motion for Summary Judgment on the First Amended complaint is GRANTED.

Dated: May 19, 2021

___________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: ****2825    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: ****2825    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: ****2825    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