This case was last updated from Los Angeles County Superior Courts on 10/27/2018 at 20:26:18 (UTC).

SOO OK CHOI VS SAMUEL JINKYOO KANG ET AL

Case Summary

On 02/01/2018 SOO OK CHOI filed a Personal Injury - Other Personal Injury lawsuit against SAMUEL JINKYOO KANG. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is HOLLY J. FUJIE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2532

  • Filing Date:

    02/01/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

HOLLY J. FUJIE

 

Party Details

Petitioner and Plaintiff

CHOI SOO OK

Respondents and Defendants

NIW USA INC.

REX COUNSELOR USA INC.

DOES 1 THROUGH 100

KANG SAMUEL JINKYOO

Attorney/Law Firm Details

Petitioner and Plaintiff Attorney

MEDVEI LAW GROUP APC

Respondent and Defendant Attorneys

CHONG EDWARD J. ESQ.

KIM DAVID S. ESQ.

 

Court Documents

REQUEST FOR ENTRY OF DEFAULT

8/6/2018: REQUEST FOR ENTRY OF DEFAULT

DEFENDANTS' REPLY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT; ETC

8/10/2018: DEFENDANTS' REPLY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT; ETC

Minute Order

8/17/2018: Minute Order

ORDER RE: DEFENDANTS' DEMURRER

8/17/2018: ORDER RE: DEFENDANTS' DEMURRER

ANSWER TO UNVERIFIED FIRST AMENDED COMPLAINT

9/7/2018: ANSWER TO UNVERIFIED FIRST AMENDED COMPLAINT

NOTICE RE: CONTINUANCE OF HEARING

8/6/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE RE: CONTINUANCE OF HEARING

8/6/2018: NOTICE RE: CONTINUANCE OF HEARING

OPPOSITION OF PLAINTIFF TO DEMURRER TO FIRST AMENDED COMPLAINT OF DEFENDANTS KANG, MW USA, INC., AND REX COUNSELOR, INC. AND OPPOSITION TO REQUEST FOR JUDICIAL NOTICE; ETC

8/6/2018: OPPOSITION OF PLAINTIFF TO DEMURRER TO FIRST AMENDED COMPLAINT OF DEFENDANTS KANG, MW USA, INC., AND REX COUNSELOR, INC. AND OPPOSITION TO REQUEST FOR JUDICIAL NOTICE; ETC

DEMURRER TO FIRST AMENDED COMPLAINT

7/26/2018: DEMURRER TO FIRST AMENDED COMPLAINT

DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR DEMURRER TO THE FIRST AMENDED COMPLAINT

7/26/2018: DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR DEMURRER TO THE FIRST AMENDED COMPLAINT

NOTICE OF RELATED CASE

7/31/2018: NOTICE OF RELATED CASE

REQUEST FOR ENTRY OF DEFAULT

6/29/2018: REQUEST FOR ENTRY OF DEFAULT

REQUEST FOR ENTRY OF DEFAULT

6/29/2018: REQUEST FOR ENTRY OF DEFAULT

STATEMENT OF DAMAGES

6/29/2018: STATEMENT OF DAMAGES

STATEMENT OF DAMAGES

6/29/2018: STATEMENT OF DAMAGES

REQUEST FOR ENTRY OF DEFAULT

6/29/2018: REQUEST FOR ENTRY OF DEFAULT

STATEMENT OF DAMAGES

6/29/2018: STATEMENT OF DAMAGES

STATEMENT OF DAMAGES

6/29/2018: STATEMENT OF DAMAGES

30 More Documents Available

 

Docket Entries

  • 09/07/2018
  • Answer to First Amended Complaint; Filed by Samuel Jinkyoo Kang (Defendant); NIW USA, Inc. (Defendant); Rex Counselor USA, Inc. (Defendant)

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  • 09/07/2018
  • ANSWER TO UNVERIFIED FIRST AMENDED COMPLAINT

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  • 08/17/2018
  • at 08:33 AM in Department 56; Hearing on Demurrer - without Motion to Strike (DEMURRER; Overruled) -

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  • 08/17/2018
  • ORDER RE: DEFENDANTS' DEMURRER

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  • 08/17/2018
  • Order; Filed by Court

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  • 08/17/2018
  • Minute Order

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  • 08/15/2018
  • at 08:31 AM in Department 56; Case Management Conference (Conference-Case Management; Continued by Court) -

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  • 08/10/2018
  • DEFENDANTS' REPLY TO OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT; ETC

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  • 08/10/2018
  • Reply/Response; Filed by Samuel Jinkyoo Kang (Defendant)

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  • 08/06/2018
  • Request for Entry of Default / Judgment; Filed by Plaintiff/Petitioner

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64 More Docket Entries
  • 02/08/2018
  • DEMAND FOR JURY TRIAL AND NOTICE OF POSTING OF FEES

    Read MoreRead Less
  • 02/08/2018
  • PROOF OF SERVICE SUMMONS

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  • 02/08/2018
  • CIVIL DEPOSIT

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  • 02/08/2018
  • PROOF OF SERVICE SUMMONS

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  • 02/08/2018
  • Proof of Service (not Summons and Complaint); Filed by Soo Ok Choi (Plaintiff)

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  • 02/02/2018
  • Notice of Related Cases

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  • 02/02/2018
  • Notice of Related Case; Filed by Soo Ok Choi (Plaintiff)

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  • 02/01/2018
  • Complaint; Filed by Soo Ok Choi (Plaintiff)

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  • 02/01/2018
  • SUMMONS

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  • 02/01/2018
  • COMPLAINT FOR DAMAGES: 1. VIOLALION OF THE IMMIGRATION CONSULTANTS ACT.

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Tentative Rulings

Case Number: BC692532    Hearing Date: January 12, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SOO OK CHOI,

Plaintiff,

vs.

SAMUEL JINKYOO KANG, et al.,

Defendants.

CASE NO.: BC692532

[TENTATIVE] ORDER RE: MOTION FOR TERMINATING SANCTIONS OR, IN THE ALTERNATIVE, TO COMPEL COMPLIANCE WITH COURT ORDERS AND REQUEST FOR MONETARY SANCTIONS

Date: January 12, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Soo Ok Choi

RESPONDING PARTIES: Samuel Jinkyoo Kang (“Kang”); NIW USA, Inc. (“NIW”); and Rex Counselor USA, Inc. (“RCU”)

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

BACKGROUND

On April 30, 2019, Plaintiff filed a request for an Informal Discovery Conference (“IDC”) and requested that such IDC be set for April 30, 2019. Plaintiff’s request for an IDC stated that: (1) Kang served all objections to discovery that was propounded upon Kang; (2) Plaintiff had met and conferred with the prior counsel of Kang who stated that supplemental responses would be provided; (3) no supplemental responses were provided; and (4) the discovery at issue was form interrogatories, requests for admissions, and requests for production of documents.

On April 30, 2019, the Court issued a minute order as to the IDC which stated that: (1) the IDC was held; (2) the Court and counsel met and conferred in chambers regarding pending issues; and (3) counsel was to prepare a notice of ruling on issues resolved.

On June 5, 2019, Plaintiff filed a request for an IDC. The IDC request stated that RCU, NIW, and Kang all served objections as to their responses to discovery that was propounded upon them. On June 27, 2019, the Court issued a minute order as to the IDC which stated that: (1) there was no appearance by counsel for Defendants; (2) the IDC was placed off calendar; (3) notice was not required; and (4) counsel for Plaintiff could file a motion to compel.

On November 1, 2019, Plaintiff filed the following discovery motions: (1) a motion to compel Kang’s further responses to form interrogatories, set one; (2) a motion to compel Kang’s further responses to the request for production of documents, set one; (3) a motion to compel the further responses of NIW to the form interrogatories, set one; (4) a motion to compel the further responses of NIW to the request for production of documents, set one; (5) a motion to compel the further responses of RCU to the form interrogatories, set one; and (6) a motion to compel the further responses of RCU to the request for production of documents, set one.

On December 2, 2019, the Court held an IDC. The Court’s minute order thereto stated that the parties appeared for an IDC and stipulated that Defendants would serve complete, code-compliant, and verified responses by the close of business on December 31, 2019. Defendants were to serve responses to the following discovery: (1) three sets of form interrogatories (one set as to each defendant); (2) four sets of requests for admissions (one for each defendant and a second set as to Kang); (3) one set of special interrogatories; and (4) three sets of requests for production, one as to each defendant. The Court vacated the hearings on Plaintiff’s motions to compel further responses.

On August 11, 2020, the Court held a hearing on Plaintiff’s unopposed motion for terminating sanctions, which the Court granted in part. Although the Court found that Defendants failed to comply with the December 2, 2019 IDC order, the Court declined to impose terminating sanctions against Defendants. The Court, however, ordered Defendants to comply with the Court’s December 2, 2019 IDC order by the close of business on September 4, 2020[1]. As to Plaintiff’s motion, the Court granted Plaintiff’s request for monetary sanctions and awarded sanctions against Defendants and their attorneys, David S. Kim and Todd Fuson, in the reasonable amount of $560.00. The Court’s August 11, 2020 order stated that monetary sanctions were to be paid within 20 days of such order.

On September 25, 2020, Plaintiff filed another motion for terminating sanctions, and a hearing on such motion was held on October 22, 2020. The Court denied Plaintiff’s motion without prejudice; however, the Court’s order stated that: (1) counsel for Defendants was to provide code-compliant verified responses without objections within one week of the Court’s order; and (2) if Defendants failed to comply with such order, Plaintiff was to submit an ex parte application for an order granting a motion for terminating sanctions.

The Ex Parte Application

On November 2, 2020, Plaintiff filed an ex parte application for an order granting a motion for terminating sanctions based on Defendants’ failure to comply with the October 22, 2020 order. The Court held on hearing on Plaintiff’s ex parte application that same day and denied the ex parte application.

The Current Motion

Plaintiff filed a motion (the “Motion”) for terminating sanctions in which Plaintiff seeks : (1) to strike the answers of Kang and NIW, and ordering that judgment be entered against those Defendants; or (2) alternatively, an order compelling Defendants’ compliance with the Court’s orders of December 2, 2019, August 11, 2020, and October 22, 2020. The Motion also seeks monetary sanctions in the amount of $3,825.00 against Defendants and their attorneys, David S. Kim and Todd Fuson of David S. Kim & Associates.

DISCUSSION

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) 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. (Id.) Continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Id.) Where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction. (Id.) A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Where discovery sanctions are requested against a party, there must be: (1) a failure to comply with a court order; and (2) the failure must be willful. (Id.) A decision to order terminating sanctions should not be made lightly. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.) A trial court can impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Id. at 701.) Where a trial court imposes a terminating sanction, a trial court can strike out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. (Id.) A trial court’s order to impose terminating sanctions will be reversed only if it was arbitrary, capricious, or whimsical. (Id. at 702.) 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. (Id.) Trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) Terminating sanctions are warranted when a party’s lack of compliance with the discovery process has caused the opposing party prejudice. (Doppes, supra, 174 Cal.App.4th 967, 989.)

Issue No.1: Terminating Sanctions

Plaintiff’s counsel, Sebastian Medvei (“Medvei”), declares Kang and NIW failed to comply with the Court’s October 22, 2020 order—as well as prior discovery orders—because NIW and Kang provided late and non-compliant responses to certain outstanding discovery. (Medvei Decl. at ¶ 9.) Medvei, however, did not attach such responses as an exhibit to his declaration so the Court cannot ascertain the sufficiency of such purported defective discovery responses. Moreover, while the opposition argues that Kang and NIW eventually complied with the Court’s October 22, 2020 order and the motion for terminating sanctions should not be granted, there is no: (1) statement in the declaration of Todd Fuson that discovery obligations were satisfied by Kang and NIW in their entirety; and (2) attachment to the declaration of Todd Fuson for the Court to ascertain the sufficiency of Kang and NIW’s discovery responses.

The Court exercises its discretion and finds that terminating sanctions are not appropriate at this time. The declaration of Medvei does not state that Plaintiff has been prejudiced by the actions of Defendants.

The Court exercises its discretion and DENIES Plaintiff’s request to impose terminating sanctions against Kang and NIW.

The Court, however, does order Defendants to comply with the Court’s October 22, 2020 discovery order in its entirety given that Defendants present no evidence of compliance. Defendants are ordered to comply with such order by serving complete, code-compliant, and verified discovery responses, without objection, within one week of this order as to the following discovery: (1) NIW is to provide responses to Plaintiff’s Request for Production of Documents, Set One; and (2) Kang is ordered to provide responses to Plaintiff’s Special Interrogatories, Set One. If Kang and NIW do not comply with such order or flout the discovery process in another manner, and Plaintiff files another motion for terminating sanctions in the future, the Court will consider issuing terminating sanctions.

Issue No.2: Monetary Sanctions

Code Civ. Proc. § Section 2023.030 provides that 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. A misuse of the discovery process includes disobeying a court order to provide discovery. (Doppes, supra, 174 Cal.App.4th 967, 991.)

The Court exercises its discretion and GRANTS Plaintiff’s request for monetary sanctions against Kang, NIW, and their attorneys David S. Kim and Todd Fuson in the reasonable amount of $3,825.00. Monetary sanctions are to be paid within 20 days of the date of this order by Kang and NIW, and their attorneys David S. Kim and Todd Fuson.

The Motion is therefore GRANTED IN PART. The Court declines to impose terminating sanctions against Kang and NIW; however, as stated above, the Court will award Plaintiff monetary sanctions.

Moving party is ordered to give notice of this ruling.

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

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

Dated this 12th day of January 2021

Hon. Holly J. Fujie

Judge of the Superior Court


[1] Defendants were ordered to comply by serving complete, code-compliant, and verified discovery responses according to the Court’s December 2, 2019 IDC order. Moreover, the Court stated that if Defendants: (1) did not comply with such order; or (2) flouted the discovery process in another manner, and if Plaintiff filed a motion for terminating sanctions in the future, the Court would consider issuing terminating sanctions.

Case Number: BC692532    Hearing Date: October 22, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SOO OK CHOI,

Plaintiff,

vs.

SAMUEL JINKYOO KANG, et al.,

Defendants.

CASE NO.: BC692532

[TENTATIVE] ORDER RE: MOTION FOR TERMINATING SANCTIONS AND REQUEST FOR MONETARY SANCTIONS

Date: October 22, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Soo Ok Choi

The Court has considered the moving papers. No opposition papers were filed. Any opposition papers were required to be filed and served at least nine court days prior to the hearing. (Code Civ. Proc. § 1005(b).)

BACKGROUND

On May 18, 2018, Plaintiff filed the operative First-Amended Complaint (“FAC”) against Defendants alleging a single cause of action for violation of the Immigration Consultant Act (“ICA”) pursuant to California Business and Professions Code, Section 22440, et seq. Plaintiff’s complaint arises from Defendants’ alleged improper actions with respect to her National Interest Waiver (“NIW”) petition for immigration purposes.

Discovery-Related Procedural History

On April 30, 2019, Plaintiff filed a request for an Informal Discovery Conference (“IDC”) and requested that such IDC be set for April 30, 2019. Plaintiff’s request for an IDC indicated that: (1) Defendant Samuel Kang (“Kang”) served all objections to discovery that was propounded upon Kang; (2) Plaintiff had met and conferred with the prior counsel of Kang who stated that supplemental responses would be provided; (3) no supplemental responses were provided; and (4) the discovery at issue was form interrogatories, requests for admissions, and requests for production of documents.

On April 30, 2019, the Court issued a minute order in connection with the IDC. The Court’s minute order indicated that: (1) the IDC was held; (2) the Court and counsel met and conferred in chambers regarding pending issues; and (3) counsel was to prepare a notice of ruling with respect to issues resolved.

On June 5, 2019, Plaintiff filed a request for an IDC. The IDC request indicated that Defendants Rex Counselor USA, Inc. (“RCU”), NIW USA, Inc. (“NIW”), and Kang all served objections with respect to their responses to discovery that was propounded upon them. On June 27, 2019, the Court issued a minute order in connection with the IDC which indicated that: (1) there was no appearance by counsel for Defendant; (2) the IDC was placed off calendar; (3) notice was not required; and (4) counsel for Plaintiff could file a motion to compel.

On November 1, 2019, Plaintiff filed the following discovery motions: (1) a motion to compel Kang’s further responses to form interrogatories, set one; (2) a motion to compel Kang’s further responses to the request for production of documents, set one; (3) a motion to compel the further responses of NIW to the form interrogatories, set one; (4) a motion to compel the further responses of NIW to the request for production of documents, set one; (5) a motion to compel the further responses of RCU to the form interrogatories, set one; and (6) a motion to compel the further responses of RCU to the request for production of documents, set one.

On December 2, 2019, the Court held an IDC. The Court’s minute order in connection thereto indicated that the parties appeared for an IDC and stipulated that Defendants would serve complete, code-compliant, and verified responses by the close of business on December 31, 2019. Defendants were to serve responses to the following discovery: (1) three sets of form interrogatories (one set as to each defendant); (2) four sets of requests for admissions (one for each defendant and a second set as to Kang); (3) one set of special interrogatories; and (4) three sets of requests for production, one with respect to each defendant. The Court vacated the hearings on Plaintiff’s motions to compel further responses.

Plaintiff’s First Motion for Terminating Sanctions

On July 8, 2020, Plaintiff filed and served a motion for terminating sanctions and a request for monetary sanctions against Defendants and their attorneys. Plaintiff sought to strike the answer of Kang, NIW, and RCU and requested that a judgment be entered against those Defendants. Plaintiff also sought monetary sanctions in the amount of $3,404.00 against Defendants and Defendants’ attorneys. Plaintiff’s motion was made on the grounds that Defendants willfully disobeyed the Court’s December 2, 2019 order, which required them to provide responses without objection to every set of discovery propounded in this case by December 31, 2019. Plaintiff’s motion was unopposed.

On August 11, 2020, the Court held a hearing on Plaintiff’s motion for terminating sanctions, which the Court granted in part. The Court denied Plaintiff’s request to impose terminating sanctions against Defendants because the Court found that: (1) Defendants had only failed to comply with one order of this Court with respect to discovery; and (2) the declaration of Plaintiff’s counsel in support of the motion for terminating sanctions did not indicate that Plaintiff had been prejudiced by the actions of Defendants. The Court, however, ordered Defendants to comply with the Court’s December 2, 2019 IDC order by the close of business on September 4, 2020. The Court’s ruling stated that if Defendants did not comply with such order or flouted the discovery process in another manner, and Plaintiff filed another motion for terminating sanctions, the Court would consider issuing terminating sanctions. The Court also granted Plaintiff’s request for monetary sanctions and awarded Plaintiff sanctions in the reasonable amount of $560.00, which were to be paid to Plaintiff within 20 days of the Court’s order.

The Current Motion

On September 25, 2020, Plaintiff filed and served a motion for terminating sanctions and a request for monetary sanctions against Defendants and their attorneys. Plaintiff seeks to strike the answer of Kang, NIW, and RCU and requests that a judgment be entered against those Defendants. Plaintiff also seeks monetary sanctions in the amount of $2,075.00 against Defendants and Defendants’ attorneys. Plaintiff’s motion is made on the grounds that Defendants: (1) willfully disobeyed the Court’s December 2, 2019 order, which required them to provide responses without objection to every set of discovery propounded in this case by December 31, 2019; and (2) willfully disobeyed this Court’s August 11, 2020 order, which required them to provide responses to the same discovery by September 4, 2020. The declaration of Sebastian Medvei (“Medvei”) in support of Plaintiff’s motion states that Plaintiff has been prejudiced by Defendants’ discovery conduct. Plaintiff’s motion is unopposed.

The Court GRANTS Plaintiff’s motion for terminating sanctions as it is unopposed. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) With respect to monetary sanctions, upon reviewing the declaration of Medvei, the Court exercises its discretion and awards Plaintiff reasonable monetary sanctions in the amount of $325.00. (Code Civ. Proc. § 2023.030.) Monetary sanctions are to be paid within 20 days of the date of this order to Plaintiff by Defendants and their attorneys, David S. Kim and Todd Fuson.

Moving party is ordered to give notice of this ruling.

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

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

Dated this 22nd day of October 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC692532    Hearing Date: August 11, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SOO OK CHOI,

Plaintiff,

vs.

SAMUEL JINKYOO KANG, et al.,

Defendants.

CASE NO.: BC692532

[TENTATIVE] ORDER RE: MOTION FOR TERMINATING SANCTIONS AND REQUEST FOR MONETARY SANCTIONS

Date: August 11, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Soo Ok Choi

The Court has considered the moving papers. No opposition papers were filed. Any opposition papers were required to be filed and served at least nine court days prior to the hearing. (Code Civ. Proc. § 1005(b).)

BACKGROUND

On May 18, 2018, Plaintiff filed the operative First-Amended Complaint (“FAC”) against Defendants alleging a single cause of action for violation of the Immigration Consultant Act (“ICA”) pursuant to California Business and Professions Code, Section 22440, et seq. Plaintiff’s complaint arises from Defendants’ alleged improper actions with respect to her National Interest Waiver (“NIW”) petition for immigration purposes.

On April 30, 2019, Plaintiff filed a request for an Informal Discovery Conference (“IDC”) and requested that such IDC be set for April 30, 2019. Plaintiff’s request for an IDC indicated that: (1) Defendant Samuel Kang (“Kang”) served all objections to discovery that was propounded upon Kang; (2) Plaintiff had met and conferred with the prior counsel of Kang who stated that supplemental responses would be provided; (3) no supplemental responses were provided; and (4) the discovery at issue was form interrogatories, requests for admissions, and requests for production of documents.

On April 30, 2019, the Court issued a minute order in connection with the IDC. The Court’s minute order indicated that: (1) the IDC was held; (2) the Court and counsel met and conferred in chambers regarding pending issues; and (3) counsel was to prepare a notice of ruling with respect to issues resolved.

On June 5, 2019, Plaintiff filed a request for an IDC. The IDC request indicated that Defendants Rex Counselor USA, Inc. (“RCU”), NIW USA, Inc. (“NIW”), and Kang all served objections with respect to their responses to discovery that was propounded upon them. On June 27, 2019, the Court issued a minute order in connection with the IDC which indicated that: (1) there was no appearance by counsel for Defendant; (2) the IDC was placed off calendar; (3) notice was not required; and (4) counsel for Plaintiff could file a motion to compel.

On November 1, 2019, Plaintiff filed the following discovery motions: (1) a motion to compel Kang’s further responses to form interrogatories, set one; (2) a motion to compel Kang’s further responses to the request for production of documents, set one; (3) a motion to compel the further responses of NIW to the form interrogatories, set one; (4) a motion to compel the further responses of NIW to the request for production of documents, set one; (5) a motion to compel the further responses of RCU to the form interrogatories, set one; and (6) a motion to compel the further responses of RCU to the request for production of documents, set one.

On December 2, 2019, the Court held an IDC. The Court’s minute order in connection thereto indicated that the parties appeared for an IDC and stipulated that Defendants would serve complete, code-compliant, and verified responses by the close of business on December 31, 2019. Defendants were to serve responses to the following discovery: (1) three sets of form interrogatories (one set as to each defendant); (2) four sets of requests for admissions (one for each defendant and a second set as to Kang); (3) one set of special interrogatories; and (4) three sets of requests for production, one with respect to each defendant. The Court vacated the hearings on Plaintiff’s motions to compel further responses.

On July 8, 2020, Plaintiff filed and served a motion for terminating sanctions and a request for monetary sanctions against Defendants and their attorneys. Plaintiff seeks to strike the answer of Kang, NIW, and RCU and requests that a judgment be entered against those Defendants. Plaintiff seeks monetary sanctions in the amount of $3,404.00 against Defendants and Defendants’ attorneys.

Plaintiff’s motion is made on the grounds that Defendants willfully disobeyed the Court’s December 2, 2019 order, which required them to provide responses without objection to every set of discovery propounded in this case by December 31, 2019. Plaintiff’s motion is unopposed.

Declaration of Plaintiff’s Counsel

Plaintiff’s counsel, Sebastian M. Medvei (“Medvei”) relevantly declares that: (1) most of the discovery that is the subject of the instant motion was originally responded to back on June 22, 2018 (Medvei Decl. at ¶ 4); (2) each of the discovery requests was targeted at discoverable information needed to establish each violation of the ICA by Defendants (Id.); (3) Defendants refused to answer any of the discovery and, instead, interposed the same boilerplate objections to each discovery request without regard to the call of the question (Id.); (4) meet and confer efforts took place and Defendants’ counsel repeatedly agreed to provide supplemental responses (Id. at ¶ 5); (5) Defendant did now show up to the June 27, 2019 IDC (Id.); (6) at the December 2, 2019 IDC, Defendants, by and through counsel Todd Fuson, again agreed to respond in full to each of the eleven sets of discovery requests to which Defendants had previously asserted boilerplate objections (Id. at ¶ 6); (7) the Court entered an order directing Defendants to respond to each of the eleven sets of discovery on or before December 31, 2019 (Id. at ¶ 6); (8) Plaintiff provided a brief extension of two weeks after December 31, 2019 for Defendants to comply with the Court’s order (Id.); and (9) Defendants continue to refuse to obey the Court’s December 2, 2019 order, and are willfully disobeying the Court’s order and willfully refusing to participate in discovery in this case. (Id.)

Medvei further declares that: (1) he is seeking an hourly rate of $500.00 in connection with Plaintiff’s motion (Id. at ¶ 7); (2) he has been attorney of record on hundreds of cases and has recovered fees of up to $1,000.00 per hour over the past five years (Id.); (3) he anticipates spending a total of 6.5 hours with respect to Plaintiff’s motion including .5 hours in connection with any opposition and 2 hours drafting a reply brief (Id. at ¶ 8); (4) he incurred a $60.00 filing fee in connection with Plaintiff’s motion and will incur a $94.00 CourtCall fee (Id.); and (5) the total sanctions being sought in connection with Plaintiff’s motion is $3,404.00.

DISCUSSION

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “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.” (Id.) “[C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Id.) Where discovery violations are “willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction.” (Id.) “A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Where discovery sanctions are requested against a party, there must be: (1) a failure to comply with a court order; and (2) the failure must be willful. (Id.) “A decision to order terminating sanctions should not be made lightly.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.) A trial court can impose a terminating sanction “against anyone engaging in conduct that is a misuse of the discovery process.” (Id. at 701.) Where a trial court imposes a terminating sanction, a trial court can “strik[e] out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.” (Id.) A trial court’s order to impose terminating sanctions will be reversed only if it “was arbitrary, capricious, or whimsical.” (Id. at 702.) “[W]here 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.” (Id.) “[T]rial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) Terminating sanctions are warranted when a party’s lack of compliance with the discovery process has caused the opposing party prejudice. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 989.)

Issue No.1: Terminating Sanctions

The Court incorporates its recitation of the declaration of Medvei from above and applies it to the Court’s discussion of terminating sanctions. The Court finds that while Defendants failed to comply with the Court’s December 2, 2019 IDC order, terminating sanctions are not appropriate at this time. Defendants have only failed to comply with one order of this Court with respect to discovery. Defendants have not shown a pattern of defiance with respect to orders in connection with discovery. Moreover, the declaration of Medvei does not indicate that Plaintiff has been prejudiced by the actions of Defendants.

The Court exercises its discretion and DENIES Plaintiff’s request to impose terminating sanctions against Defendants.

The Court, however, does order Defendants to comply with the Court’s December 2, 2019 IDC order. Defendants are ordered to comply with such order by serving complete, code-compliant, and verified discovery responses pursuant to the Court’s December 2, 2019 IDC order by the close of business on September 4, 2020. If Defendants do not comply with such order or flouts the discovery process in another manner, and Plaintiff files a motion for terminating sanctions in the future, the Court will consider issuing terminating sanctions.

Issue No.2: Monetary Sanctions

California Code of Civil Procedure, Section 2023.030 provides that “[t]he 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.” A misuse of the discovery process “include[s] . . . [d]isobeying a court order to provide discovery.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.)

The Court incorporates the declaration of Medvei from above and applies it to the Court’s discussion of monetary sanctions against Defendants and their attorneys consisting of David S. Kim and Todd Fuson of David S. Kim & Associates. Defendants have failed to comply with this Court’s December 2, 2019 order.

The Court exercises its discretion and GRANTS Plaintiff’s request for monetary sanctions against Defendants and their attorneys David S. Kim and Todd Fuson in the reasonable amount of $560.00 which represents the 1-hour counsel spent drafting Plaintiff’s motion for terminating sanctions (Medvei Decl. at ¶ 8) and the $60.00 filing fee. Monetary sanctions are to be paid within 20 days of the date of this order by Defendants and their attorneys David S. Kim and Todd Fuson.

Plaintiff’s motion for terminating sanctions is GRANTED IN PART. The Court declines to impose terminating sanctions against Defendants; however, as indicated above, the Court will award Plaintiff monetary sanctions.

Moving party is ordered to give notice of this ruling.

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

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

Dated this 11th day of August 2020

Hon. Holly J. Fujie

Judge of the Superior Court