This case was last updated from Los Angeles County Superior Courts on 02/29/2020 at 12:01:51 (UTC).

MELODY HSIEH VS. SLIM GLOW CORP, ET AL

Case Summary

On 08/15/2017 MELODY HSIEH filed an Other lawsuit against SLIM GLOW CORP. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are DONNA FIELDS GOLDSTEIN and BENNY C. OSORIO. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7203

  • Filing Date:

    08/15/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DONNA FIELDS GOLDSTEIN

BENNY C. OSORIO

 

Party Details

Plaintiffs, Cross Defendants and Not Classified By Court

HSIEH MELODY

HORNSTRA STEVE

Defendants, Cross Plaintiffs and Not Classified By Court

WEI YAN XUE

BEAUTIFUL GLOW

SLIM GLOW CORP A CALIFORNIA

GLOW BEAUTIFUL

WEI RUNCONG AKA JAY WEI

San Gabriel, CA 91776

HORNSTRA STEVE

LING HAIXIA

San Gabriel, CA 91776

SLIM GLOW CORP. A CALIFORNIA BEAUTIFUL GLOW

HSIEH MELODY

Other

DERRICK F. COLEMAN

Attorney/Law Firm Details

Plaintiff Attorneys

BECKER LAW GROUP

SHEAR BRIAN EDWARD

Defendant and Cross Plaintiff Attorneys

WILLIAM L. NIU

CRAIG T. BYRNES

LAW OFFICE OF PAUL P. CHENG & ASSOCIATES

CHENG PAUL PO REN

TOM TRAVIS JAMES

HSU KENNETH KENG-JEN

NIU WILLIAM LI

GALLO JAMES ANDREW

BYRNES CRAIG T.

Cross Defendant Attorney

RITHOLZ ANDREW

 

Court Documents

Notice - NOTICE OF HEARING

11/1/2019: Notice - NOTICE OF HEARING

Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

1/12/2018: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

Minute Order - MINUTE ORDER ENTERED: 2018-06-29 00:00:00

6/29/2018: Minute Order - MINUTE ORDER ENTERED: 2018-06-29 00:00:00

Declaration - DECLARATION OF BRIAN E. SHEAR ISO MOTION FOR EVIDENTIARY SANCTIONS RE RFP SET TWO

9/18/2019: Declaration - DECLARATION OF BRIAN E. SHEAR ISO MOTION FOR EVIDENTIARY SANCTIONS RE RFP SET TWO

Reply - REPLY DECLARATION IN SUPPORT OF MOTION FOR EVIDENTIARY SANCTIONS

8/30/2019: Reply - REPLY DECLARATION IN SUPPORT OF MOTION FOR EVIDENTIARY SANCTIONS

Separate Statement

7/19/2019: Separate Statement

Notice - NOTICE OF NUNC PRO TUNC ORDER

5/21/2019: Notice - NOTICE OF NUNC PRO TUNC ORDER

Notice of Ruling

5/3/2019: Notice of Ruling

Declaration - DECLARATION DECLARATION OF MELODY HSIEH IN OPPOSITION TO DEFENDANT/CROSS COMPLAINANT YAN XUE WEI'S MOTION FOR A PROTECTIVE ORDER TO QUASH PLAINTIFF/CROSS DEFENDANT MELODY HSIEH'S DEPOS

4/15/2019: Declaration - DECLARATION DECLARATION OF MELODY HSIEH IN OPPOSITION TO DEFENDANT/CROSS COMPLAINANT YAN XUE WEI'S MOTION FOR A PROTECTIVE ORDER TO QUASH PLAINTIFF/CROSS DEFENDANT MELODY HSIEH'S DEPOS

Opposition - OPPOSITION OPPOSITION TO DEFENDANT AND CROSS-COMPLAINANT YAN XUE WEI'S MOTION FOR A PROTECTIVE ORDER TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ISSUED TO EAST WEST BA

4/15/2019: Opposition - OPPOSITION OPPOSITION TO DEFENDANT AND CROSS-COMPLAINANT YAN XUE WEI'S MOTION FOR A PROTECTIVE ORDER TO QUASH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ISSUED TO EAST WEST BA

Declaration - DECLARATION OF KENNETH HSU IN SUPPORT OF OPPOSITION TO PLAINTIFF'S MOTIONS TO COMPEL

4/10/2019: Declaration - DECLARATION OF KENNETH HSU IN SUPPORT OF OPPOSITION TO PLAINTIFF'S MOTIONS TO COMPEL

Motion for Protective Order

3/28/2019: Motion for Protective Order

Motion for Protective Order

3/28/2019: Motion for Protective Order

Declaration - DECLARATION OF KENNETH HSU

3/11/2019: Declaration - DECLARATION OF KENNETH HSU

Proof of Service (not Summons and Complaint)

3/11/2019: Proof of Service (not Summons and Complaint)

Notice of Case Management Conference

8/15/2017: Notice of Case Management Conference

Motion to Compel - Motion to Compel deposition of Thao Huynh and production of documents; request for order awarding monetary sanctions against Slim Glow Corp. and The Law Offices of Paul P. Cheng; an

12/10/2018: Motion to Compel - Motion to Compel deposition of Thao Huynh and production of documents; request for order awarding monetary sanctions against Slim Glow Corp. and The Law Offices of Paul P. Cheng; an

Answer -

8/14/2018: Answer -

299 More Documents Available

 

Docket Entries

  • 02/18/2020
  • Docketat 08:30 AM in Department B; Case Management Conference - Held

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  • 02/18/2020
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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  • 12/16/2019
  • Docketat 09:30 AM in Department B; Jury Trial - Not Held - Advanced and Vacated

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  • 12/10/2019
  • DocketNotice of Ruling; Filed by Melody Hsieh (Plaintiff)

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  • 12/05/2019
  • Docketat 08:30 AM in Department B; Final Status Conference - Not Held - Advanced and Vacated

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  • 11/15/2019
  • Docketat 08:30 AM in Department B; Hearing on Motion for Sanctions (reEvidentiary Sanctions filed by M. Hsieh) - Held - Motion Granted

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  • 11/15/2019
  • Docketat 08:30 AM in Department B; Hearing on Motion for Terminating Sanctions - Held - Motion Granted

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  • 11/15/2019
  • Docketat 08:30 AM in Department B; Hearing on Motion for Sanctions (reEvidentiary Sanctions) - Held - Motion Granted

    Read MoreRead Less
  • 11/15/2019
  • DocketMinute Order ( (Hearing on Motion for Terminating Sanctions; Hearing on Motio...)); Filed by Clerk

    Read MoreRead Less
  • 11/15/2019
  • DocketRequest for Entry of Default / Judgment; Filed by Melody Hsieh (Plaintiff)

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364 More Docket Entries
  • 10/05/2017
  • DocketOpposition; Filed by Melody Hsieh (Plaintiff)

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  • 09/29/2017
  • DocketNotice; Filed by Yan Xue Wei (Defendant)

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  • 09/21/2017
  • DocketNotice of Hearing on Demurrer; Filed by Yan Xue Wei (Defendant)

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  • 09/05/2017
  • DocketProof of Service of Summons and Complaint; Filed by Melody Hsieh (Plaintiff)

    Read MoreRead Less
  • 09/05/2017
  • DocketProof of Service of Summons and Complaint; Filed by Melody Hsieh (Plaintiff)

    Read MoreRead Less
  • 08/15/2017
  • DocketCivil Case Cover Sheet; Filed by Melody Hsieh (Plaintiff)

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  • 08/15/2017
  • DocketComplaint filed-Summons Issued; Filed by Melody Hsieh (Plaintiff)

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  • 08/15/2017
  • DocketSummons; Filed by Melody Hsieh (Plaintiff)

    Read MoreRead Less
  • 08/15/2017
  • DocketNotice of Case Management Conference; Filed by Court

    Read MoreRead Less
  • 08/15/2017
  • DocketOSC-Failure to File Proof of Serv; Filed by Court

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Tentative Rulings

Case Number: EC067203    Hearing Date: November 15, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

melody hsieh,

Plaintiff,

v.

SLIM GLOW CORP, et al.,

Defendants.

Case No.: EC067203

Hearing Date: November 15, 2019

[TENTATIVE] order RE:

Motions for evidentiary sanctions; and

motion for termination sanctions

BACKGROUND

  1. Allegations

Plaintiff Melody Hsieh (“Plaintiff”) commenced this action on August 15, 2017 against Defendants Slim Glow Corp. dba Beautiful Glow (“Slim Glow”) and Yan Xue Wei (“Wei”) for breach of fiduciary duty, corporate waste, accounting, constructive trust, wrongful termination in violation of public policy, fraud and deceit, and breach of contract. Plaintiff alleges that she was fraudulently induced by Wei in 2012 to open a beauty and wellness spa together. Plaintiff alleges she invested thousands of hours and money over 5 years to make the spa what it is today. Plaintiff alleges she is a 49% shareholder and director of Slim Glow, and Wei is a 51% shareholder, director, and CEO of Slim Glow. Plaintiff alleges that Wei instituted a new timecard system for clocking in and out of the spa, and terminated Plaintiff on the basis that Plaintiff failed to abide to the timecard system. Plaintiff also alleges Wei has undertaken fraudulent conduct to deceive spa customers.

  1. Relevant Background and Motions for Evidentiary and/or Monetary Sanctions

The Court notes that on August 30, 2019, the Court granted the motion to be relieved as counsel of Slim Glow’s then counsel, Kenneth K. Hsu and Travis J. Tom of Chang & Cote, LLP. Thereafter, on September 24, 2019, Slim Glow filed a Substitution of Attorney – Civil form which states that has retained new legal counsel, James A. Gallo.

On September 16, 2019, Wei filed a Substitution of Attorney stating that she is representing herself and she is no longer represented by counsel.

At issue are 3 motions filed by Plaintiff—two against Slim Glow and one against Wei.

On September 18, 2019, Plaintiff filed 2 motions for evidentiary and/or monetary sanctions against Slim Glow and its former counsel of record, Chang & Cote, LLP for failure to obey the Court’s order to serve further responses without objection and to produce documents in response to Plaintiff’s Request for Production of Documents, sets one and two (“RPD-1” and “RPD-2”, respectively). Slim Glow untimely filed oppositions to the motions on October 18, 2019. Plaintiff filed reply briefs the same day. Plaintiff’s motions for evidentiary sanctions against Slim Glow were initially set for hearing on October 25, 2019. At the request of counsel, the Court continued the hearing to November 15, 2019.

On October 11, 2019, Plaintiff filed a motion for terminating and monetary sanctions against Wei for failing to comply with multiple discovery orders and her refusal to comply with discovery obligations. The Court is not in receipt of an opposition brief from Wei.

PLAINTIFF’S MOTIONS FOR EVIDENTIARY SANCTIONS AGAINST SLIM GLOW

  1. Untimely Oppositions by Slim Glow

According to CCP §1005(b), all moving and supporting papers shall be filed at least 16 court days before the hearing; all opposing papers shall be filed with the court and served at least 9 court days before the hearing; and all reply papers at least 5 court days before the hearing. Pursuant to CRC, Rule 3.1300(d), the court may in its discretion refuse to consider a late filed paper.

Slim Glow untimely filed opposition briefs to the motions. The oppositions are comprised of a declaration from counsel and exhibits. In the declarations, James A. Gallo states that he contacted Plaintiff’s counsel to ask whether there was an extension of time to bring the motions for sanctions since the September 18, 2019 filing date was beyond the statutory limitation for bringing the motions.

However, the sanctions motions were timely filed at least 16 court days before the hearing (i.e., before October 2, 2019). In reply, Plaintiff argues that she timely filed her motions on September 18, 2019. To the extent Slim Glow relies on an email by Brian Shear (Plaintiff’s counsel) to Kenneth K. Hsu (Slim Glow’s prior counsel), dated July 17, 2019 agreeing to a 45-day extension to file motions to compel relating to Slim Glow’s Supplemental Reponses to Plaintiff’s RPDs, Plaintiff argues that her counsel understood that this meant an extension from the original, applicable due dates, rather than the date from the email. (According to Plaintiff, Plaintiff’s motions to compel were originally due by August 9, 2019, or 50 days after Slim Glow mail-served supplemental responses on June 20, 2019; thus, Plaintiff argues the 45-day extension was 45 days from August 9, which would be September 23, 2019.)

Based on the language from Plaintiff’s counsel’s email, it is not entirely clear when the 45-day extension began. However, the Court notes that the supposed extension was for motions to compel. The motions at issue are motions for sanctions. Unlike motions to compel further, which have a 45-day limitation (see CCP §2031.310(c)), motions for terminating, evidence, issue, and/or monetary sanctions do not have this specific time limitation. (See CCP §2023.030.)

The Court will consider the motions on their merits. The Court further notes that Slim Glow does not contest the substantive merits of the sanctions motions.

  1. Evidentiary Sanctions

The Court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (CCP §2023.030(c).) Evidence sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1426.) Two prerequisites for the imposition of non-monetary sanctions are: (1) there must be a failure to comply; and (2) the failure must be willful. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.) Any motion for evidentiary sanctions must be accompanied by a separate statement. (CRC Rule 3.1345(a)(7).)

Plaintiff moves for evidentiary sanctions, arguing that Slim Glow has failed to comply with the Court’s April 29, 2019 order, whereby Slim Glow was required to produce all documents and ESI without objection to RPD-1 Nos. 22, 25, 32, 38, 45, 48, 55, 57, 59, 60, and 67-72; and RPD-2 Nos. 74-76, 78-80, 82, 83, 85-87, 94-101, 106, and 112. Plaintiff argues that though Slim Glow served supplemental responses on June 20, 2019, they were not compliant with the Court’s order because they contained reservation of rights and numerous objections and privileges. (Mot. re RPD-1 at p.9; Mot. re RPD-2 at p.9.) On July 1, 2019, Plaintiff received limited electronic data responsive to the RPDs regarding Slim Glow’s QuickBooks backup files and adjusted journal entries. Plaintiff argues despite efforts to meet and confer with Slim Glow’s former counsel, Chang & Cote, she has still not received full, compliant responses and production of documents.

By way of background, the RPD-1 requests at issue seek the production of: (22, 57) Slim Glow’s bank account records and merchant credit card statements; (25) photographs, videos, and statements relating to Plaintiff; (32) videos of Slim Glow’s premises; (38, 55) loans made by Slim Glow to Wei, and documents related thereto; (43, 45, 48, 59, 60) Slim Glow’s cash reports, daily sales reports, customer files/folders, employee personnel files, payroll spreadsheets; (49) Slim Glow’s reimbursements for purchases by Wei; and (67-72) documents relating to Slim Glow’s damages suffered as a result of Plaintiff, its affirmative defenses, and allegations in the cross-complaint. The RPD-2 requests at issue seek the production of: (74-76, 78-80) Slim Glow’s monthly balance sheets, cash flow statements, monthly profit and loss statements, tax work papers, communications with Andrew Lam (CPA), and tax estimates and payments from 2012 to 2018; (82-83, 85-87) checking account statements for Bank of the West, canceled check images, and deposit slips; (93-101, 106) Slim Glow’s general ledgers, handwritten cash and check sales details, handwritten petty cash balances, biweekly payroll details spreadsheet, SpaBooker related documents, Quickbook audit logs, and adjusted journal entry reports; and (112) all backups of accounting software.

Plaintiff argues that she has been forced to file numerous discovery motions against Slim Glow as well as motions related to Slim Glow’s failure to obey Court orders in the past. Nevertheless, she argues that Slim Glow continues to abuse the discovery process. Based on Slim Glow’s conduct, Plaintiff seeks evidentiary sanctions against Slim Glow and its counsel and witnesses from:

“[O]ffering any oral and/or documentary evidence at trial relating or in opposition to Plaintiff’s Fifth Cause of Action for Wrongful Termination in Violation of Public Policy and relating or supporting Slim Glow’s Cross-Complaint. Merely prohibiting Slim Glow from introducing documents not produced during discovery would actually benefit Slim Glow. Slim Glow can deny the allegations of wrongful termination and assert its affirmative cross-claims through perjured testimony and select documents. Meanwhile, Plaintiff will be unable to present the true picture, to prove her wrongful termination claim and to defend against the cross-claims.”

(Mot. re RPD-1 at p.14; Mot. re RPD-2 at p.14.) In footnote 1 of the moving papers, Plaintiff states that a jury instruction notifying the jury that it may make a negative inference from Slim Glow’s inability to produce stronger evidence would be even weaker and less useful to Plaintiff than an order prohibiting Slim Glow from introducing documents not produced during discovery.

The Court is not in receipt of a substantive opposition brief from Slim Glow. As noted above, it appears that Slim Glow recently obtained new counsel on September 24, 2019. Thus, at the hearing, the Court is inclined to take arguments from Slim Glow and its new counsel.

However, the Court is inclined to impose a limited evidence sanction as follows against Slim Glow for its repeated evasiveness with the discovery process, such that: Slim Glow is precluded from offering any documentary evidence in its defense on the operative complaint and affirmative showing on its claims in its operative cross-complaint that it has not produced to Plaintiff as of this date. At this time, the Court cannot make any further or more specific evidentiary sanctions as requested by Plaintiff as the Court is not in receipt of what documents have and have not actually been produced.

Plaintiff may file motions in limine closer to the date of trial for any further, specific requests for excluding evidence at trial, including oral testimony that is unsupported by documentary evidence. The Court also reserves the right to make additional orders in limine to prevent any prejudice to Plaintiff as the result of Slim Glow’s failure to produce information.

  1. Monetary Sanctions

CCP §2023.030(a) states: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Plaintiff seeks monetary sanctions against Slim Glow and its former counsel of record, Chang & Cote, in the sums of $11,370 and $10,020 in connection with RPD-1 and RPD-2 motions, respectively.

Notwithstanding the ruling on the evidence sanctions, the Court awards monetary sanctions to Plaintiff against Slim Glow only in the amount of $4,620 (10 hours total x $450/hour, plus $120 in filing fees).

PLAINTIFF’S MOTION FOR TERMINATING SANCTIONS AGAINST WEI

Plaintiff moves for terminating sanctions in the form of an order dismissing with prejudice Wei’s cross-complaint and an order rendering judgment by default against Wei and in favor of Plaintiff on the complaint. Plaintiff also seeks monetary sanctions in the amount of $12,600 against Wei.

  1. Terminating Sanctions

CCP §2023.030 permits the Court to impose terminating sanctions for discovery misuses, which are defined by CCP §2023.010 to include the failure to respond to an authorized method of discovery and the failure to comply with a Court discovery order. The Court weighs the following factors when considering the present motion: (1) defendants’ conduct, indicating whether their actions were willful; (2) the detriment to the party seeking discovery; and (3) the number of formal and informal unsuccessful attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) 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.)

Plaintiff moves for terminating sanctions against Wei, arguing that Wei has disobeyed the Court’s order in connection with Plaintiff’s RPDs, sets 1, 2, and 3, and repeatedly failed to appear for her own deposition and for the deposition on behalf of Slim Glow. Plaintiff argues she was forced to file 9 discovery motions against Wei (and 6 against Slim Glow). The Court largely granted Plaintiff’s motions to compel Wei to provide further responses to RPD, sets 1, 2, and 3, as well as Plaintiff’s motion to compel Wei to comply with the Court’s prior discovery order. On September 13, 2019, the Court granted Plaintiff’s motion for evidence sanctions against Wei, such that she is precluded from offering any document in her defense that she has not produced to Plaintiff, and imposed monetary sanctions in the amount of $5,010.

In arguing that imposing terminating sanctions is proper, Plaintiff argues that Wei has engaged in a number of discovery abuses, has failed to comply with Court orders, served only objections to the discovery at issue, and on September 16, 2019 (prior to Wei’s former counsel substituting out) again served non-code compliant responses and boilerplate objections that the Court already overruled. Plaintiff also argues that Wei failed to attend her October 8, 2019 deposition (individual) and her October 9, 2019 deposition as Slim Glow’s PMK, such that Wei failed to appear on 4 separate occasions.

The Court is inclined to impose terminating sanctions against Wei. (Doppes v. Bentley Motors, Inc.  fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. … A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction”].)

The Court is familiar with this case and is well aware that Plaintiff has filed numerous discovery motions seeking Wei’s responses to discovery. Despite the Court’s numerous orders requiring Wei to produce documents and provide non-evasive responses, Wei has still failed to provide responses. This prompted the Court to grant Plaintiff’s motion to impose evidentiary and monetary sanctions against Wei. Despite such orders against Wei, it does not appear that Wei has complied with the Court’s orders. According to Plaintiff, Wei (through her former counsel) tried to invoke the Fifth Amendment privilege to cancel the depositions, but Wei did not attend her deposition to invoke such rights nor did she move for a protective order.

Also, this motion is unopposed and Wei has not informed the Court whether she has retained substitute counsel. It appears that despite the Court’s numerous discovery orders, Wei has willfully disobeyed the orders by failing to provide code-compliant responses without objection.

Thus, the motion for terminating sanctions against Wei is granted.

  1. Monetary Sanctions

In the memorandum of points and authorities, Plaintiff seeks $12,600 against Wei, which accounts for the 20 hours spent by counsel to prepare the moving papers, 5 hours reviewing opposition papers and drafting a reply brief, and 3 hours attending the hearing at $450/hour, plus $50 in costs.

The Court declines to award monetary sanctions to Plaintiff for filing this motion.

First, although the caption states that Plaintiff is seeking monetary sanctions against Wei in the caption of the moving papers, the body of the notice of the motion fails to state that she is seeking monetary sanctions, the legal basis for such sanctions, and the amount of such sanctions. (See CCP §2023.040.)

Second, discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Doppes v. Bentley Motors, Inc. As discussed above, the Court finds that the imposition of terminating sanctions is sufficient to protect Plaintiff’s interest as the party denied discovery.

CONCLUSION AND ORDER

The Court is inclined to grant Plaintiffs’ motions against Slim Glow by imposing a limited evidence sanction, such that: Slim Glow is precluded from offering any documentary evidence in its defense on the operative complaint and affirmative showing on its claims in its operative cross-complaint that it has not produced to Plaintiff as of this date. Plaintiff may file motions in limine closer to the date of trial for any further, specific requests for excluding evidence at trial, including oral testimony that is unsupported by documentary evidence. The Court also reserves the right to make additional orders in limine to prevent any prejudice to Plaintiff as the result of Slim Glow’s failure to produce information. The Court is also inclined to impose monetary sanctions against Slim Glow in the amount of $4,620. As noted above, the Court will allow Slim Glow’s counsel to present any updates or arguments regarding the discovery at issue in this action, which may show whether sanctions are or are not warranted.

The Court grants Plaintiff’s motions for terminating sanctions against Wei. Wei’s cross-complaint is dismissed with prejudice, and the Court hereby enters judgment by default against Wei on the complaint. (CCP §2023.030(d).) The Court denies Plaintiff’s request for monetary sanctions against Wei.

Plaintiff shall provide notice of this order.

Case Number: EC067203    Hearing Date: October 25, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

melody hsieh,

Plaintiff,

v.

SLIM GLOW CORP, et al.,

Defendants.

Case No.: EC067203

Hearing Date: October 25, 2019

[TENTATIVE] order RE:

Motions for evidentiary sanctions

BACKGROUND

  1. Allegations

Plaintiff Melody Hsieh (“Plaintiff”) commenced this action on August 15, 2017 against Defendants Slim Glow Corp. dba Beautiful Glow (“Slim Glow”) and Yan Xue Wei (“Wei”) for breach of fiduciary duty, corporate waste, accounting, constructive trust, wrongful termination in violation of public policy, fraud and deceit, and breach of contract. Plaintiff alleges that she was fraudulently induced by Wei in 2012 to open a beauty and wellness spa together. Plaintiff alleges she invested thousands of hours and money over 5 years to make the spa what it is today. Plaintiff alleges she is a 49% shareholder and director of Slim Glow, and Wei is a 51% shareholder, director, and CEO of Slim Glow. Plaintiff alleges that Wei instituted a new timecard system for clocking in and out of the spa, and terminated Plaintiff on the basis that Plaintiff failed to abide to the timecard system. Plaintiff also alleges Wei has undertaken fraudulent conduct to deceive spa customers.

  1. Relevant Background and Motions for Evidentiary and/or Monetary Sanctions

The Court notes that on August 30, 2019, the Court granted the motion to be relieved as counsel of Slim Glow’s then counsel, Kenneth K. Hsu and Travis J. Tom of Chang & Cote, LLP. Thereafter, on September 24, 2019, Slim Glow filed a Substitution of Attorney – Civil form which states that has retained new legal counsel, James A. Gallo.

On September 18, 2019, Plaintiff filed the instant motions for evidentiary and/or monetary sanctions against Slim Glow and its former counsel of record, Chang & Cote, LLP for failure to obey the Court’s order to serve further responses without objection and to produce documents in response to Plaintiff’s Request for Production of Documents, sets one and two (“RPD-1” and “RPD-2”, respectively).

Slim Glow untimely filed oppositions to the motions on October 18, 2019. Plaintiff filed reply briefs the same day.

DISCUSSION

  1. Untimely Opposition

According to CCP §1005(b), all moving and supporting papers shall be filed at least 16 court days before the hearing; all opposing papers shall be filed with the court and served at least 9 court days before the hearing; and all reply papers at least 5 court days before the hearing. Pursuant to CRC, Rule 3.1300(d), the court may in its discretion refuse to consider a late filed paper.

Slim Glow untimely filed opposition briefs to the motions. The oppositions are comprised of a declaration from counsel and exhibits. In the declarations, James A. Gallo states that he contacted Plaintiff’s counsel to ask whether there was an extension of time to bring the motions for sanctions since the September 18, 2019 filing date was beyond the statutory limitation for bringing the motions.

However, the sanctions motions were timely filed at least 16 court days before the hearing (i.e., before October 2, 2019). In reply, Plaintiff argues that she timely filed her motions on September 18, 2019. To the extent Slim Glow relies on an email by Brian Shear (Plaintiff’s counsel) to Kenneth K. Hsu (Slim Glow’s prior counsel), dated July 17, 2019 agreeing to a 45-day extension to file motions to compel relating to Slim Glow’s Supplemental Reponses to Plaintiff’s RPDs, Plaintiff argues that her counsel understood that this meant an extension from the original, applicable due dates, rather than the date from the email. (According to Plaintiff, Plaintiff’s motions to compel were originally due by August 9, 2019, or 50 days after Slim Glow mail-served supplemental responses on June 20, 2019; thus, Plaintiff argues the 45-day extension was 45 days from August 9, which would be September 23, 2019.)

Based on the language from Plaintiff’s counsel’s email, it is not entirely clear when the 45-day extension began. However, the Court notes that the supposed extension was for motions to compel. The motions at issue are motions for sanctions. Unlike motions to compel further, which have a 45-day limitation (see CCP §2031.310(c)), motions for terminating, evidence, issue, and/or monetary sanctions do not have this specific time limitation. (See CCP §2023.030.)

The Court will consider the motions on their merits. The Court further notes that Slim Glow does not contest the substantive merits of the sanctions motions.

  1. Evidentiary Sanctions

The Court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (CCP §2023.030(c).) Evidence sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1426.) Two prerequisites for the imposition of non-monetary sanctions are: (1) there must be a failure to comply; and (2) the failure must be willful. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.) Any motion for evidentiary sanctions must be accompanied by a separate statement. (CRC Rule 3.1345(a)(7).)

Plaintiff moves for evidentiary sanctions, arguing that Slim Glow has failed to comply with the Court’s April 29, 2019 order, whereby Slim Glow was required to produce all documents and ESI without objection to RPD-1 Nos. 22, 25, 32, 38, 45, 48, 55, 57, 59, 60, and 67-72; and RPD-2 Nos. 74-76, 78-80, 82, 83, 85-87, 94-101, 106, and 112. Plaintiff argues that though Slim Glow served supplemental responses on June 20, 2019, they were not compliant with the Court’s order because they contained reservation of rights and numerous objections and privileges. (Mot. re RPD-1 at p.9; Mot. re RPD-2 at p.9.) On July 1, 2019, Plaintiff received limited electronic data responsive to the RPDs regarding Slim Glow’s QuickBooks backup files and adjusted journal entries. Plaintiff argues despite efforts to meet and confer with Slim Glow’s former counsel, Chang & Cote, she has still not received full, compliant responses and production of documents.

By way of background, the RPD-1 requests at issue seek the production of: (22, 57) Slim Glow’s bank account records and merchant credit card statements; (25) photographs, videos, and statements relating to Plaintiff; (32) videos of Slim Glow’s premises; (38, 55) loans made by Slim Glow to Wei, and documents related thereto; (43, 45, 48, 59, 60) Slim Glow’s cash reports, daily sales reports, customer files/folders, employee personnel files, payroll spreadsheets; (49) Slim Glow’s reimbursements for purchases by Wei; and (67-72) documents relating to Slim Glow’s damages suffered as a result of Plaintiff, its affirmative defenses, and allegations in the cross-complaint. The RPD-2 requests at issue seek the production of: (74-76, 78-80) Slim Glow’s monthly balance sheets, cash flow statements, monthly profit and loss statements, tax work papers, communications with Andrew Lam (CPA), and tax estimates and payments from 2012 to 2018; (82-83, 85-87) checking account statements for Bank of the West, canceled check images, and deposit slips; (93-101, 106) Slim Glow’s general ledgers, handwritten cash and check sales details, handwritten petty cash balances, biweekly payroll details spreadsheet, SpaBooker related documents, Quickbook audit logs, and adjusted journal entry reports; and (112) all backups of accounting software.

Plaintiff argues that she has been forced to file numerous discovery motions against Slim Glow as well as motions related to Slim Glow’s failure to obey Court orders in the past. Nevertheless, she argues that Slim Glow continues to abuse the discovery process. Based on Slim Glow’s conduct, Plaintiff seeks evidentiary sanctions against Slim Glow and its counsel and witnesses from:

“[O]ffering any oral and/or documentary evidence at trial relating or in opposition to Plaintiff’s Fifth Cause of Action for Wrongful Termination in Violation of Public Policy and relating or supporting Slim Glow’s Cross-Complaint. Merely prohibiting Slim Glow from introducing documents not produced during discovery would actually benefit Slim Glow. Slim Glow can deny the allegations of wrongful termination and assert its affirmative cross-claims through perjured testimony and select documents. Meanwhile, Plaintiff will be unable to present the true picture, to prove her wrongful termination claim and to defend against the cross-claims.”

(Mot. re RPD-1 at p.14; Mot. re RPD-2 at p.14.) In footnote 1 of the moving papers, Plaintiff states that a jury instruction notifying the jury that it may make a negative inference from Slim Glow’s inability to produce stronger evidence would be even weaker and less useful to Plaintiff than an order prohibiting Slim Glow from introducing documents not produced during discovery.

   

However, the Court is inclined to impose a limited evidence sanction as follows against Slim Glow for its repeated evasiveness with the discovery process, such that: Slim Glow is precluded from offering any documentary evidence in its defense on the operative complaint and affirmative showing on its claims in its operative cross-complaint that it has not produced to Plaintiff as of this date. At this time, the Court cannot make any further or more specific evidentiary sanctions as requested by Plaintiff as the Court is not in receipt of what documents have and have not actually been produced.

Plaintiff may file motions in limine closer to the date of trial for any further, specific requests for excluding evidence at trial, including oral testimony that is unsupported by documentary evidence. The Court also reserves the right to make additional orders in limine to prevent any prejudice to Plaintiff as the result of Slim Glow’s failure to produce information.

  1. Monetary Sanctions

CCP §2023.030(a) states: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Plaintiff seeks monetary sanctions against Slim Glow and its former counsel of record, Chang & Cote, in the sums of $11,370 and $10,020 in connection with RPD-1 and RPD-2 motions, respectively.

Notwithstanding the ruling on the evidence sanctions, the Court awards monetary sanctions to Plaintiff against Slim Glow only in the amount of $4,620 (10 hours total x $450/hour, plus $120 in filing fees).

CONCLUSION AND ORDER

The Court grants Plaintiff’s motion for evidence sanctions against Slim Glow to a limited extent as stated above.

The Court grants monetary sanctions in a reasonable amount of $4,620 against Slim Glow only. Sanctions are to be paid to Plaintiff, by and through counsel, within twenty (20) days of notice of this order.

Plaintiff shall provide notice of this order.