This case was last updated from Los Angeles County Superior Courts on 12/23/2020 at 15:10:05 (UTC).

PANOPUS PLC VS PHILOUS, INC.

Case Summary

On 08/24/2017 PANOPUS PLC filed a Contract - Other Contract lawsuit against PHILOUS, INC. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. MATZ and CURTIS A. KIN. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7111

  • Filing Date:

    08/24/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. MATZ

CURTIS A. KIN

 

Party Details

Plaintiffs

AUSSIE MEX S.A. DE C.V. A MEXICAN CORP.

PANOPUS PLC.

PLC. PANOPUS

AUSSIE MEX S.A. DE C.V. A MEXICAN CORPORATION

PLC. A MALAYSIAN CORPORATION PANOPUS

Defendants

PHILOUS INC.

EUM JOSEPH

OROZCO ALFONSO SANCHEZ

HONG SEOK PIL

GROUPO MINERO PHILOUS DE MEXICO S.A.DE CV

BRIAN CHUL LEE (DOE 1)

BRIAN CHUL LEE DOE 1

LEE AN INDIVIDUAL BRIAN CHIU

EUM AN INDIVIDUAL JOSEPH

PHILOUS INC. A CALIFORNIA CORPORATION

HONG AN INDIVIDUAL SEOK PIL

Attorney/Law Firm Details

Plaintiff Attorneys

PETER T. STEINBERG ESQ.

STEINBERG PETER TODD

Defendant Attorneys

LAW OFFICES OF JOHN LEE

LEE JOHN BYUNG

PARK DANIEL MINSOO

 

Court Documents

Status Report

2/13/2020: Status Report

Opposition - OPPOSITION PLAINTIFFS PANOPUS, PLC, AND AUSSIE MEX, S.A. DE C.V.'S OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

2/13/2020: Opposition - OPPOSITION PLAINTIFFS PANOPUS, PLC, AND AUSSIE MEX, S.A. DE C.V.'S OPPOSITION TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

Minute Order - MINUTE ORDER (STATUS CONFERENCE (POST-MANDATORY SETTLEMENT CONFERENCE))

2/19/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE (POST-MANDATORY SETTLEMENT CONFERENCE))

Reply - REPLY REPLY IN SUPPORT OF MOTION FOR JUDGMENT

2/21/2020: Reply - REPLY REPLY IN SUPPORT OF MOTION FOR JUDGMENT

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS)

2/28/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS)

Notice of Ruling

2/28/2020: Notice of Ruling

Amended Complaint

3/9/2020: Amended Complaint

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

3/12/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW) OF 03/12/2020

3/12/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW) OF 03/12/2020

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/23/2020

3/23/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/23/2020

Minute Order - MINUTE ORDER (COURT ORDER)

3/23/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Demurrer - without Motion to Strike

4/13/2020: Demurrer - without Motion to Strike

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW) OF 04/15/2020

4/15/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW) OF 04/15/2020

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

4/15/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

Notice - NOTICE OF MINUTE ORDER CONTINUING TRIAL SETTING CONFERENCE

4/23/2020: Notice - NOTICE OF MINUTE ORDER CONTINUING TRIAL SETTING CONFERENCE

Opposition - OPPOSITION PLAINTIFFS PANOPUS PLC. AND AUSSIX MEX, S.A. DE C.V.'S OPPOSITION TO DEFENDANT'S DEMURRER

5/22/2020: Opposition - OPPOSITION PLAINTIFFS PANOPUS PLC. AND AUSSIX MEX, S.A. DE C.V.'S OPPOSITION TO DEFENDANT'S DEMURRER

Reply - REPLY IN SUPPORT OF DEMURRER

5/29/2020: Reply - REPLY IN SUPPORT OF DEMURRER

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; TRIAL SETTING...)

6/26/2020: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE; TRIAL SETTING...)

75 More Documents Available

 

Docket Entries

  • 03/19/2021
  • Hearing03/19/2021 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Hearing on Motion for Terminating Sanctions

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  • 02/01/2021
  • Hearing02/01/2021 at 09:00 AM in Department E at 600 East Broadway, Glendale, CA 91206; Non-Jury Trial

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  • 01/21/2021
  • Hearing01/21/2021 at 10:00 AM in Department E at 600 East Broadway, Glendale, CA 91206; Final Status Conference

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  • 12/15/2020
  • DocketMotion for Terminating Sanctions; Filed by JOSEPH EUM, an individual (Defendant)

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Compel (Responses to Requests for Production of Documents, Set One) - Held

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Compel (Responses to Form Interrogatories-General Set One, and Special Interrogatories, Set One) - Held

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Compel (For an Order Deeming the Request for Admission propounded to Plaintiff Aussie Mex, S.A. DE C.V., be Admitted) - Held

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Compel (Responses to Request for Production of Documents, Set One) - Held

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion for Order (Deeming the Requests for Admission Propounded to Plaintiff Panopus, PLC., be Admitted) - Held

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Compel (Responses to Form Interrogatories- General, Set One, and Special Interrogatories, Set One) - Held

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157 More Docket Entries
  • 10/24/2017
  • DocketMinute order entered: 2017-10-24 00:00:00; Filed by Clerk

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  • 08/29/2017
  • DocketRequest For Copies

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  • 08/24/2017
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 08/24/2017
  • DocketComplaint filed-Summons Issued

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  • 08/24/2017
  • DocketSummons; Filed by null

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  • 08/24/2017
  • DocketSummons Filed

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  • 08/24/2017
  • DocketNotice (of OSC)

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  • 08/24/2017
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 08/24/2017
  • DocketCivil Case Cover Sheet

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  • 08/24/2017
  • DocketNotice of Case Management Conference

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Tentative Rulings

b"

Case Number: ****7111 Hearing Date: July 23, 2021 Dept: E

Hearing Date: 07/23/2021 (8:30am)
Case No: ****7111 Trial Date: Not Set
Case Name: Panopus Plc v. Philous, Inc.
TENTATIVE RULING ON MOTION FOR TERMINATING SANCTIONS AND REQUEST FOR MONETARY SANCTIONS
Moving Party: Defendant Joseph Eum
Responding Party: Plaintiff Aussie Mex, S.A. de C.V., a Mexican Corporation (No Opposition)
Notice: timely, proper
RELIEF REQUESTED:
Defendant, Mr. Eum, requests an order dismissing Plaintiff Aussie Mex S.A. de C.V.’s claims against Defendant which were alleged in Second Amended Complaint and also order Aussie Mex to pay for monetary sanctions of $1,068.91. (Def.[‘s] Motion For Terminating Sanctions (“MTS”), p.4,7) In the alternative of dismissing the action, Defendant requests the appropriate issue and evidentiary sanctions be imposed precluding Plaintiff Aussie Mex S.A. de C.v., from presenting any evidence, including testimony on any of the matter addressed by the unanswered discovery. (MTS, p.4)
BACKGROUND:
The gravamen of this case is fraud arising from an agreement to lease mining equipment in Mexico between Plaintiff Aussie Mex, S.A. de C.v. (“Aussie Mex”) and defendant Groupo Minero Philous de Mexico, S.A. de C.V. Aussie Mex alleges that the individual defendants made fraudulent misrepresentations to induce Aussie Mex into entering the agreement with Philous de Mexico. (MTS, p.3)
Defendant, Mr. Eum, served written discovery requests to Aussie Mex, however, Aussie Mex refused to respond. (Id.) On March 26, 2021, the court granted Mr. Eum's Motions to Compel Initial Responses to written discovery (Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production of Documents (Set One)) and ordered Aussie Mex to serve responses, without objection within 15 days and pay monetary sanctions in the amount of $998.00 within 30 days. (MTS, Ex.1). Aussie Mex has not provided responses, nor has it paid for sanctions. (MTS, p.6).
In Defendant’s “Reply,” Defendant further stated that on May 14, 2021 the Court granted Mr. Eum’s Motion to Deem Matters Admitted (Request for Admissions Set One and Set Two)) and ordered Aussie Mex to pay monetary sanctions in the amount of $586.65 within 30 days. (Def. Reply, p.2).
ANALYSIS:
Legal Standard
Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” ; (Code ;Civ. Proc., ;; 2030.290, ;subd. (c), 2023.010, ;subd. (c); ;R.S. Creative, Inc. v. Creative Cotton, Ltd. ;(1999) 75 Cal.App.4th 486, 495.) ; ;The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. ; (Code ;Civ. Proc., ; 2023.030, ;subd. (d).) ; Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order ;to provide discovery. ; (Code ;Civ. Proc., ; 2023.010, ;subds. (d), (g).) ; A terminating sanction may be imposed by an order dismissing part ;or all of the action. ; (Code ;Civ. Proc., ; 2023.030, ;subd. (d)(3).) ; ; ;
The court is to consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent to the propounding party, and the number of formal and informal attempts to obtain discovery. ; (Lang v. Hochman ;(2000) 77 Cal.App.4th 1225, 1246.) ; If a lesser sanction fails to curb abuse, a greater sanction is warranted. ; (Van Sickle v. Gilbert ;(2011) 196 Cal.App.4th 1495, 1516.) ; However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” ; (Deyo ;v. ;Killbourne ;(1978) 84 Cal.App.3d 771, 787.) ; ;Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. ;(Doppes ;v. Bentley Motors, Inc. ;(2009) 174 Cal.App.4th 967, 992.) ;
Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. ; ;(Fairfield v. Superior Court for Los Angeles County ;(1966) 246 Cal.App.2d 113, 118.) ; Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. ; (Deyo, ;supra, ;84 Cal.App.3d at p. 787; ;Fred Howland Co. v. Superior Court of Los Angeles County ;(1966) 244 Cal.App.2d 605, 610-611.) ; ;The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. ; (Deyo, ;supra, 84 Cal.App.3d at p. 788; ;Cornwall v. Santa Monica Dairy Co. ;(1977) 66 Cal.App.3d 250; Evid. Code, ;; 500, 605.) ;
Discussion
Plaintiff violated the court’s order by failing to provide initial responses to the court’s order granting Defendant’s motion to compel initial responses on March 26, 2021. Plaintiff was served with the court’s order granting Plaintiff’s motion to compel and to pay monetary sanctions on March 30, 2021 and did not comply within the 15 and 30 day period set by the court. (MTS, p.6). Further, Plaintiff has a history of disregarding the Court’s orders. On November 13, 2020 the Court ordered a tentative ruling GRANTING Defendant’s unopposed motion to compel responses to form interrogatories-general, set one, and special interrogatories, set one; motion to compel responses to requests for production of documents, set one; and motion for an order deeming the requests for admission be admitted. (See 11/13/2020 Minute Order entered by Clerk). The Court noted that for failing to comply with its discovery obligations and thereby forcing defendant Joseph Eum to file these three motions, the Court imposes a total of $1,934.95 in monetary sanctions on plaintiff. (See 11/13/2020 Minute Order). Further, as noted in Defendant’s Reply, the Court issued a Minute Order on 5/14/2021 GRANTING Defendant’s unopposed motion for an order deeming requests for admission be admitted against Plaintiff Aussie Mex and imposed sanctions for a total of $586.65 due to be paid within 30 days. (See Minute Order 5/14/2021).
Given Plaintiff’s apparent disinterest in litigating this case and failure to respond to discovery and pay sanctions and failure to comply with the order after receiving notice, the Court finds that Plaintiff understood his obligations to answer discovery and that Plaintiff willfully failed to comply. Given that the earlier monetary sanctions had no effect on Plaintiff’s willingness to respond to discovery, the Court finds that lesser sanctions will not curb the abuse.
RECOMMENDED RULING:
The motion for terminating sanctions is GRANTED, and Plaintiff’s action is hereby dismissed with prejudice. The Court declines to further impose monetary sanctions.
"


Case Number: ****7111    Hearing Date: May 14, 2021    Dept: E

MOTION TO DEEM MATTERS ADMITTED

Date: 5/14/21 (8:30 AM)

Case: Panopus Plc et al. v. Philous, Inc. et al. (****7111)

TENTATIVE RULING:

Defendant Joseph Eum’s UNOPPOSED Motion for an Order Deeming Requests for Admission be Admitted against Plaintiff Aussie Mex, S.A. de C.V. is GRANTED.

Defendant Joseph Eum served Requests for Admission, Set One and Requests for Admission, Set Two on plaintiff Aussie Mex, S.A. de C.V. by mail and email on January 21, 2021 and February 1, 2021, respectively. (Park Decl. ¶ 2 & Exs. 1, 2.) The deadlines to serve responses were February 25, 2021 and March 8, 2021, respectively. (CCP ;; 2033.250(a) [discovery responses due 30 days after service]; 1013(a) [five calendar days added for mailing).) Plaintiff Aussie Mex, S.A. de C.V. failed to respond to either set of Requests for Admission. (Park Decl. ¶ 3.) Accordingly, all objections are waived. (CCP ; 2033.280(a).)

Pursuant to CCP ; 2033.280(b), the motion is GRANTED. The Court deems as admitted against plaintiff Aussie Mex, S.A. de C.V. the matters set forth in Requests for Admission, Sets One and Two, served on January 21, 2021 and February 1, 2021, respectively.

For failing to comply with its discovery obligations and thereby forcing defendant Joseph Eum to file this motion, the Court imposes monetary sanctions based on 1.5 hours of work (instead of the 4.5 hours claimed) at an hourly rate of $350, plus $61.65 in filing fees, for a total of $586.65. Such sanctions are ordered to be paid to defendant Joseph Eum’s counsel of record within thirty (30) days hereof.

The Court declines to consider defendant’s request for terminating sanctions, made for the first time in defendant’s reply brief and nowhere mentioned in the notice of motion.



Case Number: ****7111    Hearing Date: March 26, 2021    Dept: E

MOTIONS FOR TERMINATING SANCTIONS (2)

MOTIONS TO COMPEL INITIAL RESPONSES (2)

Date: 3/26/21 (10:00 AM)

Case: Panopus Plc et al. v. Philous, Inc. et al. (****7111)

TENTATIVE RULING:

Defendant Joseph Eum’s UNOPPOSED Motion for Terminating Sanctions is DENIED as MOOT.

Defendant Seok Pil Hong’s UNOPPOSED Motion for Terminating Sanctions is GRANTED IN PART.

Defendant Joseph Eum’s UNOPPOSED Motion to Compel Responses to Form Interrogatories-General, Set One, and Special Interrogatories, Set One from Plaintiff Aussie Mex, S.A. de C.V. is GRANTED.

Defendant Joseph Eum’s UNOPPOSED Motion to Compel Responses to Requests for Production of Documents, Set One from Plaintiff Aussie Mex, S.A. de C.V. is GRANTED.

I. DEFENDANT JOSEPH EUM’S MOTION FOR TERMINATING SANCTIONS AGAINST PLAINTIFF PANOPUS, PLC

Defendant Joseph Eum moves for terminating sanctions against plaintiff Panopus, PLC (“Panopus”) for failing to comply with the Court’s November 13, 2020 discovery order.

On November 13, 2020, the Court ordered Panopus to serve initial verified responses, without objection, to defendant Eum’s first sets of Form Interrogatories-General, Special Interrogatories, and Requests for Production of Documents within 15 days, which corresponds to November 30, 2020, since November 28, 2020 fell on a Saturday. (CCP ; 12a(a).) The Court also imposed monetary sanctions in the amount of $1,934.95 against Panopus to be paid to defendant Eum’s counsel of record within 30 days.

Even though Panopus has failed to follow the Court’s Order and respond to discovery, this motion is moot. The only cause of action asserted by Panopus against Eum was the second cause of action for Fraud – Intentional Misrepresentation of Fact. On January 29, 2021, the Court granted Eum’s Motion for Judgment on the Pleadings as to the second cause of action without leave to amend. Therefore, Eum is already entitled to judgment against Panopus.

Accordingly, the motion is DENIED as MOOT. Because Panopus’ claims against Eum have already been dismissed, the Court declines to award additional monetary sanctions against Panopus.

II. DEFENDANT SEOK PIL HONG’S MOTION FOR TERMINATING SANCTIONS AGAINST PLAINTIFFS PANOPUS, PLC AND AUSSIE MEX, S.A. DE C.V.

Defendant Seok Pil Hong moves for terminating sanctions against plaintiffs Panopus, PLC (“Panopus”) and Aussie Mex, S.A. de C.V. (“Aussie”) for failing to comply with the Court’s December 4, 2020 discovery order.

On December 4, 2020, the Court ordered plaintiffs Panopus and Aussie to serve initial verified responses, without objection, to defendant Hong’s respective first sets of Form Interrogatories-General, Special Interrogatories, and Requests for Production of Documents within 15 days, which corresponds to December 21, 2020, since December 19, 2020 fell on a Saturday. (CCP ; 12a(a).) The Court also imposed monetary sanctions in the amount of $1,059.95 against Panopus and $1,059.95 against Aussie to be paid to defendant Hong’s counsel of record within 30 days.

With respect to Panopus, this motion is moot. The only cause of action asserted by Panopus against Hong was the second cause of action for Fraud – Intentional Misrepresentation of Fact. On January 29, 2021, the Court granted Hong’s Motion for Judgment on the Pleadings as to the second cause of action without leave to amend. Therefore, Hong is already entitled to judgment against Panopus. Accordingly, the motion as to Panopus, PLC is DENIED as MOOT.

With respect to Aussie, the causes of action Aussie asserted against Hong were the third cause of action for Fraud – Intentional Misrepresentation of Fact and the fourth cause of action for Conversion. On January 29, 2021, the Court granted Hong’s Motion for Judgment on the Pleadings as to the third cause of action without leave to amend but denied the motion as to the fourth cause of action. Accordingly, the only surviving cause of action that Aussie asserted against defendant Hong is the fourth cause of action for Conversion.

Generally, the trial court may terminate a party’s action as a sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)

Aussie failed to serve responses to Hong’s first sets of discovery by December 21, 2020. (Park Decl. ¶ 3.) On December 22, 2020, Hong followed up with Aussie about the status of the compelled discovery responses. (Park Decl. ¶ 4 & Ex. 1.) To date, Aussie has not provided any responses. (Park Decl. ¶ 6.) The Court notes that Aussie appeared at the December 4, 2020 hearing and waived notice. Accordingly, it cannot be said that Aussie did not know about its obligations to respond to Hong’s discovery. The record shows that despite Hong’s formal and informal attempts to obtain discovery responses, Aussie refuses to provide responses, as ordered by the Court on December 4, 2020.

“In the context of sanctions against a party for willful refusal to furnish discovery, it has been held that the responding party has the burden of proving the lack of willfulness of his failure to perform.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 201, citing Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 489; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 788.) By failing to file an opposition to this motion, despite proper service, Aussie fails to meet its burden to demonstrate its lack of willfulness and accordingly why terminating sanctions should not be imposed.

Further, the discovery at issue pertains to the Conversion cause of action asserted against Hong by Aussie. The Special Interrogatories, Set One referenced paragraphs of the original Complaint. Hong sought facts, witnesses, and documents supporting paragraphs 35 and 36 of the original Complaint concerning the Conversion cause of action. (Park Decl. re: Aussie Interrogatories filed 9/15/20 ¶ 2 & Ex. 2, Special Interrogatory Nos. 28-33.) In Form Interrogatories, Set One, Hong sought the identification of witnesses and documents concerning the events underlying this action. (Park Decl. re: Aussie Interrogatories filed 9/15/20 ¶ 2 & Ex. 1, Form Interrogatory Nos. 12.1 to 12.7.) Hong also sought information regarding the contract between Aussie and Groupo Minero Philous de Mexico S.A. de C.V. from which the Conversion cause of action arose. (Park Decl. re: Aussie Interrogatories filed 9/15/20 ¶ 2 & Ex. 1, Form Interrogatory Nos. 50.1 to 50.6; Compl. ¶ 35 & Ex. B.) In the Requests for Production, Set One, Hong sought the production of documents identified in the Form Interrogatories and Special Interrogatories. (Park Decl. re: Aussie Requests for Production filed 9/15/20 ¶ 2 & Ex. 1, Request Nos. 18, 19, 21-23, 25-28.) Because the subject discovery pertains to Aussie’s remaining claim against Hong, Aussie’s refusal to respond to discovery is detrimental to Hong’s ability to defend against the Conversion claim.

A court is not required to impose sanctions in a graduated fashion but may apply “the ultimate sanction” against a party who has persisted in refusing to comply with discovery obligations. (Deyo, 84 Cal.App.3d at 793.) “The unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction . . . .” (Scherrer v. Plaza Marina Coml. Corp. (1971) 16 Cal.App.3d 520, 524.) Here, the Court notes that it imposed monetary sanctions on December 4, 2020 in connection with Aussie’s discovery violation, but that lesser sanction appears to have been ineffective in bringing about corrective action by Aussie. Further, the Court notes that, on December 4, 2020, the Court also deemed Aussie to have admitted the Request for Admissions to which Aussie had not responded. That rather serious consequence for Aussie’s failure to meet its discovery obligations also appears to have had no effect on securing Aussie’s compliance with its obligations.

Based on the willfulness exhibited by Aussie in failing to comply with the December 4, 2020 discovery order, the detriment to Hong resulting therefrom, and the demonstrated ineffectiveness of lesser sanctions, the Court finds that terminating sanctions are appropriate under the circumstances. Based on plaintiff Aussie’s misuse of the discovery process, the motion is GRANTED IN PART as to Aussie Mex, S.A. de C.V. This action is hereby dismissed with prejudice as to all claims and causes of action asserted by plaintiff Aussie Mex, S.A. de C.V. against defendant Seok Pil Hong.

Having imposed the “ultimate sanction” of terminating plaintiff Aussie Mex, S.A. de C.V.’s case, the Court declines to award additional monetary sanctions as requested by defendant Seok Pil Hong.

III. DEFENDANT JOSEPH EUM’S MOTIONS TO COMPEL RESPONSES TO FORM INTERROGATORIES-GENERAL, SET ONE; SPECIAL INTERROGATORIES, SET ONE; AND REQUESTS FOR PRODUCTION, SET ONE FROM PLAINTIFF AUSSIE MEX, S.A. DE C.V.

On December 2, 2020, defendant Joseph Eum served the first sets of Form Interrogatories, Special Interrogatories, and Requests for Production of Documents on plaintiff Aussie Mex, S.A. de C.V. by mail and email. (Park Decls. ¶ 2 & Exs. 1, 2.) The latest possible deadline to serve responses to the discovery was January 6, 2020. (CCP ;; 2030.260(a), 2031.260(a) [discovery responses due 30 days after service]; 1013(a) [five calendar days added for mailing).) Plaintiff Aussie Mex, S.A. de C.V. failed to respond to the discovery. (Park Decls. ¶ 3.) Accordingly, all objections are waived. (CCP ;; 2030.290(a); 2031.300(a).)

Pursuant to CCP ;; 2030.290(b) and 2031.300(b), the Motions to Compel Responses to (1) Form Interrogatories-General, Set One; Special Interrogatories, Set One; and (2) Requests for Production of Documents, Set One are GRANTED. Plaintiff Aussie Mex, S.A. de C.V. is ordered to serve written verified responses without objection to the first sets of Form Interrogatories, Special Interrogatories and Requests for Production of Documents and produce responsive documents to Requests for Production of Documents within 15 days hereof.

For failing to comply with its discovery obligations and thereby forcing defendant Joseph Eum to file these two (2) motions, the Court imposes monetary sanctions based on 2.5 hours of work (instead of the 9 hours claimed) at an hourly rate of $350.00, plus $123.30 in filing fees, for a total of $998.30. Such sanctions are ordered to be paid to defendant Joseph Eum’s counsel of record within thirty (30) days hereof.



Case Number: ****7111    Hearing Date: January 29, 2021    Dept: E

MOTION FOR JUDGMENT ON THE PLEADINGS

[CCP ; 438 et. seq.]

Date: 1/29/20 (10:00 AM)

Case: Panopus Plc et al. v. Philous, Inc. et al. (****7111)

TENTATIVE RULING:

Defendants Seok Pil Hong and Joseph Eum’s Motion for Judgment on the Pleadings is GRANTED IN PART and DENIED IN PART.

The Court takes judicial notice of its minute orders dated November 13, 2020 and December 4, 2020. (Evid. Code ; 452(d).) The Court also takes judicial notice of Requests for Admission served on plaintiffs Panopus, PLC (“Panopus”) and Aussie Mex, S.A. de C.V. (“Aussie”). (See Evid. Code ; 452(h) (facts and propositions not reasonably subject to dispute); Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-05 [“The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court”].)

I. SECOND CAUSE OF ACTION: FRAUD – INTENTIONAL MISREPRESENTATION OF FACT ASSERTED BY PANOPUS

The second cause of action for Fraud asserted by Panopus is based on defendant Eum and Hong’s alleged intentional misrepresentations to officers of Panopus that Philous, Inc. (“Philous”) would deliver the iron ore to plaintiff Panopus. (SAC ¶ 20.) Eum and Hong allegedly never intended to deliver the iron ore to Panopus. (SAC ¶ 21.)

With respect to defendant Eum, Request No. 17 served on Panopus states: “Admit that Defendant Joseph Eum did not make any fraudulent representations to Panopus, PLC., regarding the sale of the iron ore.” (Park Decl. ¶ 2 & Ex. 1.) On November 13, 2020, the Court deemed the matter set forth in this request admitted. With respect to defendant Hong, Request No. 17 served on Panopus states: “Admit that Defendant Seok Pil Hong did not make any fraudulent representations to Panopus, PLC., regarding the sale of the iron ore.” (Park Decl. ¶ 3 & Ex. 2.) On December 4, 2020, the Court deemed the matter set forth in this request admitted.

Because Panopus admitted that defendants Eum and Hong did not make any fraudulent representations to it regarding the sale of the iron ore, Eum and Hong are entitled to judgment on the pleadings as to the second cause of action.

Further, defendant Hong allegedly signed a false audit certificate in September 2014 stating that Philous held 1,275 tons of iron ore. (SAC ¶ 20.) This allegation is negated by Panopus’ admission to Request No. 18, which states: “Admit that Panopus is not aware of any facts to support the contention that Seok Pil Hong signed false audit statements in September 2014. (Park Decl. ¶ 3 & Ex. 2.) On December 4, 2020, the Court deemed the matter set forth in this request admitted.

Accordingly, plaintiffs cannot establish that defendants Eum and Hong made any fraudulent statements to Panopus. The motion as to the second cause of action is GRANTED without leave to amend as to defendants Eum and Hong.

II. THIRD CAUSE OF ACTION: FRAUD – INTENTIONAL MISREPRESENTATION OF FACT ASSERTED BY AUSSIE

With respect to defendant Hong, Request No. 1 states: “Admit that Seok Pil Hong did not make any fraudulent representations to Aussie Mex, S.A. de C.V. regarding the lease of mining equipment.” The third cause of action asserted by Aussie is based on the assertion that Hong and Eum represented to Aussie that Philous Mexico, for which Hong and Eum served as officers, would promptly pay for the cone crusher. (SAC ¶¶ 8, 9, 26.) The Agreement between Aussie and Philous Mexico was for the lease of mining equipment, specifically a cone crusher. (SAC ¶ 15, Ex. B at ;; 2, 4.) On December 4, 2020, the Court deemed the matter set forth in Request No. 1 admitted. Because Aussie admitted that Hong made no fraudulent representations regarding the lease of mining equipment, Hong is entitled to judgment on the pleadings in his favor as to the third cause of action.

With respect to defendant Eum, however, defendants present no requests for admission pertaining to any misrepresentations that Eum made to Aussie. Defendants argue that admissions can be used by all parties joined after the admissions were made. (Reply at 4 [citing Swedberg v. Christiana Community Builders (1985) 175 Cal.App.3d 138, 144 [“We believe the Legislature intended to allow one party in a case to enjoy the benefits of discovery obtained by other parties in that same case. . . . [A]dmissions may be used by all parties to a single action”]].) While this may be true, the text of the requests for admission must still be pertinent to the issue which may dispose of the cause of action. Here, none of the Requests for Admission served on Aussie pertain to any representations made by Eum. (Park Decl. ¶ 3 & Ex. 2.) Moreover, the moving papers state that only Hong seeks judgment on the pleadings as to the third cause of action. (Mot. at 6.)

Accordingly, the motion is GRANTED without leave to amend as to defendant Hong and DENIED as to defendant Eum.

III. FOURTH CAUSE OF ACTION: CONVERSION ASSERTED BY AUSSIE

The elements of a conversion claim are: (1) plaintiff owned an item of personal property; (2) defendant intentionally and substantially interfered with plaintiff’s property by preventing plaintiff from having access to the property or destroying the property; (3) plaintiff did not consent; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 2100.)

Here, none of the Requests for Admission served on Aussie conclusively negate any of the elements of a conversion claim. (Park Decl. ¶ 3 & Ex. 2.) While Aussie admitted that Hong is not in possession of the “equipment” (Request No. 4), the specific equipment is not set forth in the request for admission. Even if the equipment referred to a cone crusher, the admission does not foreclose the possibility that Hong has interfered with Aussie’s access to the cone crusher through other methods that do not require Hong to be in possession of the cone crusher. While Aussie admitted that Aussie’s affiliate, Panopus, breached a contract to purchase iron ore (Request No. 5), thus rendering the lease agreement attached to the Second Amended Complaint as Exhibit B unnecessary, defendants do not set forth any provision in the lease agreement that conditions the lease payment on Panopus’ compliance with its agreement to purchase iron ore from Philous. While Aussie admitted that the “equipment” is subject to a lien in favor of Aussie’s creditors (Request No. 7), the equipment is not defined in the request for admission. Further, even if the equipment referred to the cone crusher, the admission does not conclusively establish that Aussie has no ownership interest in the cone crusher; the liens could be for less than the market value of the cone crusher. While Aussie admitted that it has filed a legal action in Mexico in connection with the alleged breach of an agreement to lease equipment, it is unclear how this negates any element of the conversion cause of action.

With respect to defendant Eum, even if Eum could use the requests for admission that Hong served on Aussie for Eum’s benefit, none of the Requests for Admission negate Aussie’s conversion claim for the same reasons stated above. Moreover, the moving papers state that only Hong seeks judgment on the pleadings as to the fourth cause of action. (Mot. at 6.)

Accordingly, the motion as to the fourth cause of action is DENIED as to defendants Eum and Hong.

In summary, with respect to defendant Joseph Eum, the motion is GRANTED without leave to amend as to the second cause of action and DENIED as to the third and fourth causes of action. With respect to defendant Seok Pil Hong, the motion is GRANTED without leave to amend as to the second and third causes of action and DENIED as to the fourth cause of action.



Case Number: ****7111    Hearing Date: December 04, 2020    Dept: E

MOTIONS TO COMPEL DISCOVERY (4) AND TO DEEM MATTERS ADMITTED (2)

Date: 12/4/20 (8:30 AM)

Case: Panopus Plc et al. v. Philous, Inc. et al. (****7111)

TENTATIVE RULING:

Defendant Seok Pil Hong’s UNOPPOSED (1) Motion to Compel Responses to Form Interrogatories-General, Set One, and Special Interrogatories, Set One from Plaintiff Panopus, PLC; (2) Motion to Compel Responses to Requests for Production of Documents, Set One from Plaintiff Panopus, PLC; (3) Motion for an Order Deeming the Requests for Admission be Admitted against Plaintiff Panopus, PLC; (4) Motion to Compel Responses to Form Interrogatories-General, Set One, and Special Interrogatories, Set One from Plaintiff Aussie Mex, S.A. de C.V.; (5) Motion to Compel Responses to Requests for Production of Documents, Set One from Plaintiff Aussie Mex, S.A. de C.V.; and (6) Motion for an Order Deeming the Requests for Admission be Admitted against Plaintiff Aussie Mex, S.A. de C.V. are GRANTED.

On February 11, 2020, defendant Seok Pil Hong served the first sets of Form Interrogatories-General, Special Interrogatories, Requests for Production of Documents, and Requests for Admission on plaintiffs Panopus, PLC and Aussie Mex, S.A. de C.V. (Park Decls. ¶ 2 & Exs. 1, 2.) The deadline to serve responses to the discovery was March 17, 2020. (CCP ;; 2030.260(a), 2031.260(a), 2033.250(a) [discovery responses due 30 days after service]; 1013(a) [five calendar days added for mailing).) Plaintiffs Panopus, PLC and Aussie Mex, S.A. de C.V. failed to respond to their respective discovery. (Park Decls. ¶ 3.) Accordingly, all objections are waived. (CCP ;; 2030.290(a); 2031.300(a); 2033.280(a).)

Pursuant to CCP ;; 2030.290(b) and 2031.300(b), the Motions to Compel Responses to Form Interrogatories-General, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One are GRANTED. Plaintiffs Panopus, PLC and Aussie Mex, S.A. de C.V. are ordered to serve written verified responses without objection to their respective first sets of Form Interrogatories, Special Interrogatories and Requests for Production of Documents and produce responsive documents to their respective Requests for Production of Documents within 15 days hereof.

As to the first sets of Requests for Admission, pursuant to CCP ; 2033.280(b), the motions are GRANTED. The Court deems as admitted against plaintiffs Panopus, PLC and Aussie Mex, S.A. de C.V. the matters set forth in the respective Requests for Admissions served on them on February 11, 2020.

For failing to comply with their discovery obligations and thereby forcing defendant Seok Pil Hong to file these six (6) motions, the Court imposes monetary sanctions based on 5 hours of work (instead of the 27 hours claimed) at an hourly rate of $350.00, plus $369.90 in filing fees, for a total of $2,119.90. Such sanctions shall be split evenly between plaintiffs Panopus, PLC and Aussie Mex, S.A. de C.V., with each owing $1,059.95. Such sanctions are ordered to be paid to defendant Seok Pil Hong’s counsel of record within thirty (30) days hereof.



Case Number: ****7111    Hearing Date: November 13, 2020    Dept: E

MOTIONS TO COMPEL INITIAL RESPONSES TO DISCOVERY AND TO DEEM MATTERS ADMITTED (3)

Date: 11/13/20 (8:30 AM)

Case: Panopus Plc et al. v. Philous, Inc. et al. (****7111)

TENTATIVE RULING:

Defendant Joseph Eum’s UNOPPOSED Motion to Compel Responses to Form Interrogatories-General, Set One, and Special Interrogatories, Set One; Motion to Compel Responses to Requests for Production of Documents, Set One; and Motion for an Order Deeming the Requests for Admission be Admitted are GRANTED.

On February 11, 2020, defendant Joseph Eum served the first sets of Form Interrogatories-General, Special Interrogatories, Requests for Production of Documents, and Requests for Admission on plaintiff Panopus, PLC. (Park Decls. ¶ 2 & Exs. 1, 2.) The deadline to serve responses to the discovery was March 17, 2020. (CCP ;; 2030.260(a), 2031.260(a), 2033.250(a) [discovery responses due 30 days after service]; 1013(a) [five calendar days added for mailing).) Plaintiff Panopus, PLC failed to respond to the discovery. (Park Decls. ¶ 3.) Accordingly, all objections are waived. (CCP ;;2030.290(a); 2031.300(a).)

Pursuant to CCP ;; 2030.290(b) and 2031.300(b), the Motions to Compel Responses to Form Interrogatories-General, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One are GRANTED. Plaintiff Panopus, PLC is ordered to serve written verified responses without objection to the first sets of Form Interrogatories, Special Interrogatories and Requests for Production of Documents and produce responsive documents to the Requests for Production of Documents within 15 days hereof.

As to the first set of Requests for Admission, pursuant to CCP ; 2033.280(b), the motion is GRANTED. The Court deems as admitted against plaintiff Panopus, PLC the matters set forth in the Requests for Admissions served on February 11, 2020.

For failing to comply with its discovery obligations and thereby forcing defendant Joseph Eum to file these three (3) motions, the Court imposes a total of $1,934.95 in monetary sanctions on plaintiff Panopus, PLC, based on 5 hours of work (instead of the 13.5 hours claimed) at an hourly rate of $350.00, plus $184.95 in filing fees. Monetary sanctions shall be paid to defendant Joseph Eum’s counsel of record within thirty (30) days hereof.



Case Number: ****7111    Hearing Date: September 18, 2020    Dept: E

DEMURRER

[CCP ;430.10 et. seq.]

Date: 9/18/20 (10:00 AM)

Case: Panopus Plc et al. v. Philous, Inc. et al. (****7111)

TENTATIVE RULING:

Defendants Seok Pil Hong and Joseph Eum’s Demurrer to the Second Amended Complaint is OVERRULED.

Defendants contend the third cause of action for Fraud relating to the cone crusher contract is defective due to the sham pleading doctrine. “‘[U]nder the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. [Citations omitted].’” (State ex rel. Metz v. CCC Info. Servs., Inc.) (2007) 149 Cal. App. 4th 402, 412.

Defendants argue that, in the original Complaint, plaintiff Aussie Mex, S.A. de C.V. (“Aussie”) does not allege that defendants Hong and Eum were officers of Groupo Minero Philous de Mexico (“Philous Mexico”). (Compl. ¶ 4.) Rather, the Complaint alleges that Philous Mexico was operated by Alfonso Sanchez Orozco. (Compl. ¶ 4.) Based on this, defendants contend Aussie has admitted only Orozco made the fraudulent promise to pay. But, in the original Complaint, plaintiff Aussie alleged that Hong, in addition to Orozco, promised Aussie on behalf of Philous Mexico that Philous Mexico would pay for the cone crusher and return the equipment upon termination of the rental agreement. (Compl. ¶ 29.) Thus, subsequent allegations that Hong made fraudulent representations to plaintiff Aussie on behalf of Philous Mexico do not constitute sham pleadings. Further, contrary to defendants’ contention (Demurrer at 7), Aussie has never previously admitted that Hong and Eum did not work for Philous Mexico. Hong and Eum could be officers of both Philous, as alleged throughout this action (Compl. ¶ 7; First Amended Complaint [“FAC”] ¶¶ 5, 6; Second Amended Complaint [“SAC”] ¶¶ 5, 6), and Philous Mexico, as is now alleged in the SAC (SAC ¶¶ 8, 9).

In the FAC, plaintiff Aussie alleges that Hong and Eum, individually and on behalf of Philous, Inc. (“Philous”) and Philous Mexico, promised to make payments for the cone crusher and return the equipment after termination of the rental agreement. (FAC ¶ 23.) In so alleging, the FAC omits any allegation that Orozco made such fraudulent representations to Aussie. (See FAC ¶ 23.) That omission hardly indicates plaintiff has engaged in sham pleading. To begin with, the omission of Orozco’s representations and the addition of Hong and Eum’s representations in the FAC are not inconsistent with the allegations in the original Complaint that Orozco made fraudulent representations. Indeed, with respect to the motion for judgment on the pleadings as to this cause of action in the original Complaint, the Court granted the motion with leave to amend because Hong’s fraudulent misrepresentations were not pled with sufficient specificity. (See 2/28/20 Minute Order.) Because the allegation concerning Orozco was not harmful to Aussie’s Fraud cause of action in the original Complaint, the Court does not view the omission of allegations concerning Orozco in the FAC as an effort to engage in sham pleading to avoid an attack on demurrer. With respect to Eum, Eum’s purported misrepresentations added to the FAC are not necessarily inconsistent with the original Complaint. Aussie never alleged that only Hong and Orozco made fraudulent representations and thus the addition of allegations relating to Eum is not inconsistent with the original Complaint.

In the SAC, plaintiff Aussie now adds the allegation that Hong and Eum are officers of Philous Mexico. (SAC ¶¶ 8-9.) Aussie maintains its allegation from the FAC that Hong and Eum falsely promised on behalf of Philous Mexico that it would pay for the cone crusher and return the equipment after termination of the rental agreement. Unlike the FAC, the SAC now alleges Hong and Eum’s authority to speak on behalf of Philous Mexico. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 [“The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”].)

For the reasons stated above, defendants’ argument that the SAC is a sham pleading is not well taken.

Defendants also contend that plaintiff Aussie fails to set forth the fraud with the requisite specificity. Aussie alleges that to entice Aussie to enter into the cone crusher contract, Hong and Eum promised Aussie that its affiliate, Philous Mexico would promptly pay for the equipment, properly care for the same, and return the equipment upon termination of the rental agreement. (SAC ¶ 26.) Hong also allegedly represented to Aussie and Panopus that Philous needed the equipment to fulfill the iron ore contract. (SAC ¶ 26.) Aussie alleges that the representations were made to entice it to enter into the cone crusher contract, which was entered on December 18, 2013. ((SAC ¶ 26 & Ex. B.)

In the SAC, Aussie adds allegations regarding how (verbally over the phone and in person and in writing) and when the false promises were made (in the months leading up to the December 2013 cone crusher contract and from April to October 2014). (SAC ¶ 26.) Plaintiff Aussie does not expressly allege the individuals from Aussie to whom Hong and Eum spoke. However, the cone crusher contract was signed by Octavio Salvador Erquiaga on behalf of Aussie. (SAC & Ex. B.) Accordingly, it can be inferred that Hong and Eum made the alleged fraudulent promise to pay to Erquiaga. The allegations in the SAC are sufficient for pleading purposes.

The demurrer to the third cause of action is OVERRULED.



Case Number: ****7111    Hearing Date: June 26, 2020    Dept: E

DEMURRER

[CCP ;430.10 et. seq.]

Date: 6/26/20 (2:00 p.m.)

Case: Panopus Plc et al. v. Philous, Inc. et al. (****7111)

TENTATIVE RULING:

Defendants Seok Pil Hong and Joseph Eum’s Demurrer to the First Amended Complaint (“FAC”) is OVERRULED IN PART and SUSTAINED IN PART.

On April 15, 2020, the Court continued the hearing to May 26, 2020 but ordered briefing based on the original hearing date of May 8, 2020. Therefore, the opposition was due on April 27, 2020, nine court days before the hearing date, as required by CCP ; 1005(b). Even though the opposition was filed late on May 22, 2020, the Court exercises its discretion and considers the opposition. (Cal. Rule of Court 3.1300(d) [“If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)

I. SECOND CAUSE OF ACTION: FRAUD (IRON ORE AGREEMENT)

With respect to the second cause of action for Fraud – Intentional Misrepresentation of Fact asserted by Panopus, Plc (“Panopus”), defendants argue that the authority of Hong and Eum to speak on behalf of Philous, Inc. (“Philous”) must be alleged. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 [“The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”].) Panopus alleges that Hong and Eum are officers and directors of Philous. (FAC ¶¶ 5, 6.) The iron ore contract also states that Hong is the legal representative of Philous. (FAC Ex. A at p. 1.) These allegations are sufficient for pleading purposes.

With respect to whether the allegations are sufficiently specific, Panopus alleges that, in December 2013, when Hong and Eum caused Philous, Inc. (“Philous”) to enter to the iron ore contract, Hong and Eum represented to Phil Thomas and Octavio Erquiaga of Panopus verbally and in writing that Philous would honor its contract and deliver the iron ore to Panopus. (FAC ¶ 17.) Panopus also alleges that numerous times, prior to execution of the contract by all parties and up to October 2014, Eum and Hong represented verbally and in email that the iron ore would be delivered. (Id.) Panopus also alleges that in September 2014, Hong signed an audit certificate stating that Philous held 1,275 tons of iron ore and emailed the certificate to Thomas on behalf of Panopus. (Id.) Based on these allegations, Panopus alleges that from December 2013 to October 2014, Hong and Eum made fraudulent representations that enticed Panopus to entering into the iron ore contract, as well as caused Panopus to remain confident up to October 2014 that the iron ore would be delivered to Panopus, even though the contract provided up to December 31, 2013 to for Philous to deliver the iron ore. (FAC Ex. A.) Notwithstanding the lack of specific dates of the representations, the allegations are sufficiently specific.

The demurrer to the second cause of action is OVERRULED.

II. THIRD CAUSE OF ACTION: FRAUD (CONE CRUSHER AGREEMENT)

With respect to the third cause of action for Fraud – Intentional Misrepresentation of Fact asserted by Aussie Mex S.A. De C.V. (“Aussie”), Aussie sufficiently alleges dates of the representations. Aussie alleges that the representations were made to entice it to enter into the cone crusher contract, which was entered on December 18, 2013. (FAC ¶ 23 & Ex. B.)

However, Hong and Eum’s authority to speak on behalf of Philous Mexico is not sufficiently alleged. Groupo Minero Philous de Mexico (“Philous Mexico”) is alleged to be the affiliate of Philous, but that does not mean that Hong and Eum are officers of Philous Mexico. (FAC ¶ 4; Tarmann, supra, 2 Cal.App.4th at p. 157.) Aussie also does not allege where and by what means Hong and Eum represented that they would pay for, care for, and return the cone crusher. (FAC ¶ 23; Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73, citing Hills Trans. Co. v. Southwest (1968) 266 Cal.App.2d 702, 707.)

The demurrer to the third cause of action is SUSTAINED.

III. FOURTH CAUSE OF ACTION: CONVERSION

With respect to the fourth cause of action for Conversion, the Court finds that Aussie did not engage in sham pleading to avoid demurrer. There is no showing that Aussie omitted Orozco from the Fraud and Conversion causes of action in an attempt to evade demurrer.

Defendants also contend that the iron ore contract discloses Panopus’ failure to pay Philous for delivery of 5,000 tons of iron ore, which purportedly contradicts Panopus’ allegation that it fulfilled its performance prior to demanding delivery. The iron ore contract’s imposition of an obligation upon Panopus to pay for the ore does not contradict Panopus’ allegation that it wired $218,750 to Philous in performance of its payment obligations. (FAC ¶ 17.)

Defendants also contend that Panopus’ allegation that Philous had ore but sold it to another customer contradicts Panopus’ allegations that defendant never had any iron to sell and that the audit certificate is false. (FAC ¶¶ 17, 18.) All the allegations could be true. First, Panopus never alleges that defendants did not have iron to sell, only that defendants never intended to deliver the iron to Panopus. (FAC ¶ 18.) Second, defendants could have sold the iron to another customer prior to September 2014, when Hong certified to Phil Thomas on behalf of Panopus that it held 1,275 tons of ore.

The demurrer to the fourth cause of action is OVERRULED.

Ten days leave to amend the third cause of action only.



Case Number: ****7111    Hearing Date: February 28, 2020    Dept: E

JUDGMENT ON THE PLEADINGS

[CCP ; 438]

Date: 2/28/20

Case: Panopus, PLC, et al. v. Philous, Inc., et al. (****7111)

TENTATIVE RULING:

Defendants Seok Pil Hong’s and Joseph Eum’s Motion for Judgment on the Pleadings is GRANTED with 10 days leave to amend as to the second and fourth causes of action and DENIED as to the fifth cause of action.

As an initial matter, the Court notes the motion was untimely filed under CCP ; 438(e). The Case Management Conference (“CMC”) was held on June 4, 2018. During the CMC, the trial was initially set for June 3, 2019. This motion for judgment on the pleadings was not filed until January 30, 2020. However, ; 438(e) provides explicitly for an untimely motion to be heard if the Court “otherwise permits,” and the Court in its discretion considers the motion on the merits, because the fraud causes of action are not pled with the required specificity, as discussed below.

I. SECOND CAUSE OF ACTION: FRAUD (IRON ORE AGREEMENT)

With respect to second cause of action for Fraud based on the iron ore agreement, this cause of action is not time-barred as defendants contend. “[A] demurrer based on an affirmative defense [such as the statute of limitations] will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.” (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.) While the iron ore agreement provides for delivery on December 31, 2013 (Comp. Ex. A at p. 4) and defendants allegedly failed to deliver iron ore as provided, plaintiff Panopus, PLC (“Panopus”) also alleges that defendants Eum and Hong misrepresented at “numerous and diverse times that the subject exportable iron ore would be delivered” and that Hong signed an audit certificate in September 2014 concerning the amount of ore Philous, Inc. held. (Compl. ¶ 18.) Based on these alleged misrepresentations, Panopus argues that it had reason to discover defendants’ fraud no earlier than late October 2014, when defendants stopped communicating with Panopus altogether. (Id. ¶ 19.) Accordingly, the allegations of the complaint do not necessarily compel the conclusion that the fraud respect to the iron ore agreement was untimely brought, as a trier of fact could conclude Panopus only had reason to suspect defendants of fraud sometime after defendants failed to deliver iron ore per the agreement, namely, when defendants cut off all contact about the failure to deliver iron ore.

Nevertheless, the Court finds that judgment on the pleading is appropriately granted as to the second cause of action because it is not pled with the requisite specificity. Panopus fails to allege how, when, where, to whom on behalf of Panopus, and by what means Eum and Hong represented that the iron ore would be delivered. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) Indeed, Panopus does not even allege whether these representations were made after defendants failed to deliver the iron ore. While Panopus alleges that Hong signed the audit certificate in September 2014 stating that Philous, Inc. held 1,275 tons of iron ore, Panopus does not state how, where, to whom on behalf of Panopus, and by what means Hong submitted the certificate to Panopus. While fraud causes of action may be pled with less specificity when defendants must necessarily possess full information or when defendants know more of the facts (Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217), plaintiff here is in a position to plead this cause of action with more specificity, as it was a participant in execution of the agreement. Accordingly, the motion as to the second cause of action is GRANTED with 10 days leave to amend.

II. FOURTH CAUSE OF ACTION: FRAUD (CONE CRUSHER AGREEMENT)

With respect to the fourth cause of action for Fraud based on the cone crusher agreement, plaintiff Aussie Mex, S.A. de C.V. (“Aussie”) sufficiently alleges that it discovered the fraud no earlier than late October 2014, when defendants stopped communicating with Aussie. Aussie alleges that Hong repeatedly assured Aussie that they would pay leasing fees on the cone crusher, which defendants needed to extract the iron ore. (Compl. ¶ 31.) As alleged, the fourth cause of action is not necessarily time-barred, as a trier of fact may determine whether it was reasonable for Aussie to discover the fraud in late October 2014, as opposed to June or July 2014 when defendants allegedly stop paying the leasing fees on the equipment.

Nonetheless, like the second cause of action, Aussie does not allege the purported fraud with the requisite specificity, including how, when, where, to whom on behalf of Aussie, and by what means Hong represented to Aussie that defendants would pay the rental fees on the cone crusher. Accordingly, the motion as to the fourth cause of action is GRANTED with 10 days leave to amend.

III. FIFTH CAUSE OF ACTION: CONVERSION

For the same reasons stated with respect to the fourth cause of action, the Court finds that the fifth cause of action for conversion is not necessarily time-barred. Further, the Court finds that Aussie sufficiently alleges Hong refused to return the cone crusher that Aussie leased to now-dismissed defendant Groupo Minero Philous de Mexico, S.A. de C.V. (Compl. ¶ 35.) Accordingly, the motion as to the fifth cause of action is DENIED.



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