This case was last updated from Los Angeles County Superior Courts on 10/26/2020 at 08:20:33 (UTC).

TNIS SYSTEMS INC VS PRIMECOM USA LLC ET AL

Case Summary

On 04/06/2018 TNIS SYSTEMS INC filed a Contract - Other Contract lawsuit against PRIMECOM USA LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DALILA CORRAL LYONS and DAVID J. COWAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1011

  • Filing Date:

    04/06/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DALILA CORRAL LYONS

DAVID J. COWAN

 

Party Details

Plaintiffs, Petitioners, Cross Defendants and Not Classified By Court

TNIS SYSTEMS INC.

KIM GABRIEL AN INDIVIDUAL

KIM GABRIEL AKA KIM CHULWOO AN INDIV.

KIM GABRIEL AKA CHULWOO AN INDIV.

KIM GABRIEL AKA CHULWOO KIM

KIM CHULWOO

Defendants, Respondents, Cross Plaintiffs and Not Classified By Court

DOES 1-20

HJ COMMUNICATION LLC

PRIMECOM USA LLC

HJ PNA INC. A CALIFORNIA CORPORATION

HJ COMMUNICATIONS LLC A CALIFORNIA LIMITED LIABILITY COMPANY

TNIS SYSTEMS INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

JUNG LAW P.C.

JUNG KAREN E.

JUNG KAREN

Defendant and Respondent Attorneys

MYUNG S. CALVIN ESQ.

LAW OFFICES OF LEE & PARK

S. CALVIN MYUNG ESQ

ESQ S. CALVIN MYUNG

MYUNG S CALVIN

LEE SANG I

MYUNG S. CALVIN

Defendant and Cross Plaintiff Attorneys

LAW OFFICES OF LEE & PARK

LEE SANG I

Plaintiff and Cross Defendant Attorney

JUNG KAREN E.

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 09/08/2020

9/8/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 09/08/2020

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC); STATUS CONFERENCE RE: SE...)

8/4/2020: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC); STATUS CONFERENCE RE: SE...)

Answer

7/21/2020: Answer

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: SETTLEMENT)

3/12/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: SETTLEMENT)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER REGARDING NOTICE OF RELATED CASE) OF 02/25/2020

2/25/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER REGARDING NOTICE OF RELATED CASE) OF 02/25/2020

Declaration - DECLARATION OF PLAINTIFF'S COUNSEL RE COMPLIANCE WITH MEET AND CONFER PRIOR TO FINAL STATUS CONFERENCE

11/15/2019: Declaration - DECLARATION OF PLAINTIFF'S COUNSEL RE COMPLIANCE WITH MEET AND CONFER PRIOR TO FINAL STATUS CONFERENCE

Other - - RULING: OCTOBER 17, 2019

10/17/2019: Other - - RULING: OCTOBER 17, 2019

Motion to Quash

10/7/2019: Motion to Quash

Reply - REPLY BRIEF OF CROSS DEFENDANT GABRIEL KIM TO THE OPPOSITION OF DEFENDANT/CROSS COMPLAINANT HJC COMMUNICATIONS, LLC TO MOTION TO DISQUALIFY COUNSEL SANG LEE; SUPPORTING DECLARATION OF KEVIN K

9/16/2019: Reply - REPLY BRIEF OF CROSS DEFENDANT GABRIEL KIM TO THE OPPOSITION OF DEFENDANT/CROSS COMPLAINANT HJC COMMUNICATIONS, LLC TO MOTION TO DISQUALIFY COUNSEL SANG LEE; SUPPORTING DECLARATION OF KEVIN K

Opposition - OPPOSITION TO CROSS-DEFENDANT GABRIEL KIMS MOTION TO DISQUALIFY COUNSEL SANG LEE; DECLARATION OF SANG LEE; DECLARATION OF YOUNGSOO YOO

9/10/2019: Opposition - OPPOSITION TO CROSS-DEFENDANT GABRIEL KIMS MOTION TO DISQUALIFY COUNSEL SANG LEE; DECLARATION OF SANG LEE; DECLARATION OF YOUNGSOO YOO

Motion to Disqualify Counsel

8/27/2019: Motion to Disqualify Counsel

Minute Order - MINUTE ORDER (COURT ORDER - REGARDING NOTICE OF RELATED CASE FILED BY PLAIN...)

4/3/2019: Minute Order - MINUTE ORDER (COURT ORDER - REGARDING NOTICE OF RELATED CASE FILED BY PLAIN...)

Answer - Answer to the First-AMended

10/17/2018: Answer - Answer to the First-AMended

CASE MANAGEMENT STATEMENT -

7/16/2018: CASE MANAGEMENT STATEMENT -

REPLY TO OPPOSITION TO DEFENDANT PRIMECOM USA, LLC?S PETITION TO COMPEL ARBITRATION, AND REQUEST FOR STAY OF PROCEEDINGS

7/9/2018: REPLY TO OPPOSITION TO DEFENDANT PRIMECOM USA, LLC?S PETITION TO COMPEL ARBITRATION, AND REQUEST FOR STAY OF PROCEEDINGS

DECLARATION OF S. CALVIN MYUNG IN SUPPORT OF DEFENDANT PRIMECOM USA, LLC'S PETITION TO COMPEL ARBITRATION, AND REQUEST FOR STAY OF PROCEEDINGS

5/16/2018: DECLARATION OF S. CALVIN MYUNG IN SUPPORT OF DEFENDANT PRIMECOM USA, LLC'S PETITION TO COMPEL ARBITRATION, AND REQUEST FOR STAY OF PROCEEDINGS

ORDER TO SHOW CAUSE HEARING

4/17/2018: ORDER TO SHOW CAUSE HEARING

COMPLAINT FOR (1) BREACH OF CONTRACT - SERVICE AGREEMENT ;ETC

4/6/2018: COMPLAINT FOR (1) BREACH OF CONTRACT - SERVICE AGREEMENT ;ETC

121 More Documents Available

 

Docket Entries

  • 03/29/2021
  • Hearing03/29/2021 at 09:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 03/18/2021
  • Hearing03/18/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/19/2020
  • Hearing11/19/2020 at 11:00 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Informal Discovery Conference (IDC)

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  • 10/06/2020
  • Docketat 08:30 AM in Department 20, David J. Cowan, Presiding; Hearing on Motion to Disqualify Counsel - Not Held - Rescheduled by Court

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  • 10/01/2020
  • DocketRuling: October 1, 2020; Filed by Clerk

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  • 09/30/2020
  • Docketat 10:00 AM in Department 20, David J. Cowan, Presiding; Hearing on Motion to Disqualify Counsel - Not Held - Rescheduled by Court

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  • 09/30/2020
  • Docketat 1:30 PM in Department 20, David J. Cowan, Presiding; Informal Discovery Conference (IDC) - Not Held - Taken Off Calendar by Court

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  • 09/30/2020
  • Docketat 1:30 PM in Department 20, David J. Cowan, Presiding; Hearing on Motion to Quash (Deposition Subpoena for Production of Business Records by Plaintiff Gabriel Kim, Filed by Defendants, HJC Communication LLC and HJ PNA Inc) - Held - Motion Denied

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  • 09/30/2020
  • Docketat 1:30 PM in Department 20, David J. Cowan, Presiding; Hearing on Motion to Disqualify Counsel (Sang Lee; Filed by Plaintiff/Cross-Defendant) - Held - Motion Denied

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  • 09/30/2020
  • Docketat 1:30 PM in Department 20, David J. Cowan, Presiding; Status Conference (ReSettlement) - Held

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205 More Docket Entries
  • 04/23/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 04/23/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 04/17/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 04/17/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/17/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 04/17/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/06/2018
  • DocketCOMPLAINT FOR (1) BREACH OF CONTRACT - SERVICE AGREEMENT ;ETC

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  • 04/06/2018
  • DocketComplaint; Filed by Gabriel, Kim, an individual (Plaintiff)

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  • 04/06/2018
  • DocketSUMMONS

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  • 04/06/2018
  • DocketComplaint; Filed by null

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Tentative Rulings

Case Number: BC701011    Hearing Date: September 30, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Date: Wednesday, September 30, 2020

Case Name: TNIS Systems, Inc. v. Primecom USA, LLC et al.

Case No.: BC701011/19STCV33104

Motion: Disqualify Counsel; Quash Deposition Subpoena

Moving Party: Plaintiff Kim (Disqualify); Defendants HJC and HJ PNA (Quash)

Responding Party: Defendants HJC and HJ PNA (Disqualify); Plaintiff Kim (Quash)

Notice: OK


Ruling: The Motion to Disqualify Counsel is DENIED.

The Motion to Quash Deposition Subpoena is DENIED.

HJC to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


 

BACKGROUND

On April 6, 2018, TNIS Systems Inc. filed a complaint against Defendants PrimeCom USA, Inc., HJ Communication, LLC (“HJC”), and Does 1 through 20 for breach of contract – service agreement; fraud – intentional misrepresentation; fraud - concealment; breach of contract – HJC oral agreement; negligence; and unfair competition. This is the TNIS action, case no. BC701011.

¿On May 29, 2018, HJC filed the Cross-Complaint against Gabriel Kim (“Kim”) and Roes 1-20 for breach of fiduciary duty; breach of the duty of loyalty; breach of the duty of confidence; conversion; misappropriation of trade secret; interference with contractual relations; unfair competition; unjust enrichment; money had and received; breach of contract;  common count – services provided; account stated; and open book account.

¿On August 8, 2018, HJC filed the First Amended Cross-Complaint (“FAXC”) against TNIS, Kim, and Roes 1-20 stating the same claims, but separate breach of contract claims against Kim and against Kim and TNIS. The FAXC alleges Kim was a member and officer of HJC owing fiduciary duties to HJC and that Kim breached those fiduciary duties by appropriating HJC’s commercial opportunities for himself and TNIS.  HJC alleges Kim and TNIS are alter egos.

On September 17, 2019, Kim filed a Complaint against HJC, HJ PNA, Inc., and Does, stating claims for fraud by false promise and intentional misrepresentation, conversion, rescission, breach of contract, common counts, and unfair competition. The Complaint alleges HJ PNA is an alter ego of HJC. This is the Kim action, case no. 19STCV33104.

On October 17, 2019, the Court, by Judge Dalila C. Lyons, denied Kim’s motion to disqualify opposing counsel Sang Lee (representing HJC and HJ PNA) on the grounds that Kim had a former attorney-client relationship with Mr. Lee arising from Mr. Lee’s representation of the HJC LLC and that Mr. Lee would be called as a witness. Judge Lyons found no evidence of a former attorney-client relationship and found that Kim had not shown Mr. Lee’s testimony was genuinely needed for any significant issues.

On March 12, 2020, the Court consolidated the TNIS action and Kim action.

On April 3, 2020, Kim served a deposition subpoena for production of business records on HJC, seeking bank records, loan documents, and fund transfers by and for HJC and HJ PNA.

On May 18, 2020, HJC filed a Motion to Quash the Deposition Subpoena.

On July 23, 2020, the parties submitted a Joint Statement ahead of an informal discovery conference (IDC) on the motion to quash deposition subpoena.

On August 4, 2020, the Court conducted an IDC regarding the deposition subpoena. The IDC did not resolve the dispute.

On August 19, 2020, Kim filed another Motion to Disqualify, again seeking to disqualify Mr. Lee on the grounds that Mr. Lee previously represented Kim as a member of HJC and that Mr. Lee would have necessary testimony.

On September 17, 2020, HJC filed an Opposition to the Motion to Disqualify.

On September 23, 2020, Kim filed a Reply in support of the Motion to Disqualify.

ANALYSIS

Evidentiary Objections and Request for Judicial Notice

Defendants’ Objections to the Jung Declaration are OVERRULED.

Defendants’ Objections to the Kevin Kim Declaration are OVERRULED.

Defendants’ Request for Judicial Notice is GRANTED as to all requested documents, which include Judge Lyons’ October 17, 2019 order denying Kim’s previous motion to disqualify and several related pleadings filed by the parties.

 

Disqualification—Existence of Attorney-Client Relationship

“[B]efore the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356) If a party without a cognizable legal injury could bring a motion to disqualify, such motions would be strategically exploited as a litigation tactic. (Id. at 1358)

Here, Kim has not established an attorney-client relationship and therefore lacks standing to bring this motion. Kim has not established an attorney-client relationship between Mr. Lee and himself insofar as he was a partner for HJC, which Mr. Lee represented. Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717 is on point. There, the court rejected a “bright line rule that an attorney representing a partnership automatically represents each individual partner as to the partner's personal interests” because such a rule “would, when combined with the per se disqualification rule applied to concurrent representation of conflicting interests, cause unjust consequences when the individual partner had no reasonable expectation of the attorney's loyalty in matters unrelated to the partnership affairs.” (Id.) That rule “would unfairly penalize third parties by depriving them of their chosen counsel . . . [without] any offsetting benefit to the public or the legal profession.” (Id.) The court also rejected “a bright line rule that a partnership attorney may never have a duty of loyalty to individual partners,” which would “undermine public confidence in lawyers by permitting an attorney to represent an adverse party when the individual partner had a reasonable expectation that the attorney would not do so.” (Id.)

The court therefore held that whether a partnership attorney impliedly represents individual members depends on the totality of the circumstances. (Id.) “An implied contract is one, the existence and terms of which are manifested by conduct.” (Id.) Factors to consider include (non-exhaustively) “[t]he type and size of the partnership,” “the nature and scope of the attorney's engagement by the partnership,” “[t]he kind and extent of contacts, if any, between the attorney and the individual partner,” and “the attorney's access to information (e.g., partnership financial information) relating to the individual partner's interests.” (Id. at 1733.) But above all other factors, “primary attention should be given to whether the totality of the circumstances, including the parties' conduct, implies an agreement by the partnership attorney not to accept other representations adverse to the individual partner's personal interests.” (Id. at 1733.) Any disqualification decision must also be balanced against the right to choose one’s attorney. (Id. (“[d]isqualification . . . would unfairly penalize third parties by depriving them of their chosen counsel . . . [without] any offsetting benefit to the public or the legal profession.”))

Here, Kim has not established an attorney-client relationship. Though the size of the partnership is small, which favors finding representation of individual partners, Mr. Lee had virtually no communications with Kim individually. (Supp. Kim Decl., para. 8.) Kim “admits that, during such calls [with Mr. Lee], KT Kim led the calls . . . [Gabriel Kim] hardly or never spoke.” (Reply at p. 8:5-6.) This factor alone weighs strongly against the existence of an attorney-client relationship between Mr. Lee and Kim due to the absence of affirmative conduct by Mr. Lee. All of Kim’s alleged interactions with Mr. Lee concerned HJC’s operations in general rather than Kim’s individual interests as a partner of HJC. Mr. Lee never individually discussed the Operating Agreement or Option Agreement with Kim; Kim never asked Mr. Lee about these Agreements, even though he drafted them. Mr. Lee did not offer the Operating Agreement to Kim to sign; Yoo did. There is no evidence indicating Mr. Lee had a one-on-one relationship with the other individual partner, KT Kim. Even though he “hardly or never spoke,” Kim claims that “[w]hen such calls were made, [Kim] intended that Mr. Lee provide legal advice for the business as well as for each member, including Gabriel Kim.” (Id. at p. 8:10-12.) But this intent was not manifested on calls with Mr. Lee. Kim indicates he failed to have independent counsel review the draft operating agreement “because he believed that Mr. Lee incorporated the issues raised previously by KT Kim and Gabriel Kim,” but fails to show this belief was justified and fails to provide any evidence Mr. Lee knew or believed Kim would not have the Agreement reviewed by independent counsel. (Id. at p. 8:12-15.)

Thus, on these facts, the “kind and extent of contacts” is not suggestive of individual representation. Similarly, the “nature and scope of the attorney’s engagement with the partnership” was limited to partnership matters and did not embrace either partner’s individual matters. Kim does not contend Mr. Lee had access to confidential partnership information that would prejudice Kim. (Responsible Citizens, supra, at 1733.) Therefore, the sole factor supporting an attorney-client relationship is the size of the LLC because the nature and scope of Mr. Lee’s work did not embrace individual partners’ matters and there is no evidence Mr. Lee had one-on-one communications with either partner. Kim’s claim that he “intended that Mr. Lee provide legal advice for the business as well as for each member” is unsupported—indeed, inconsistent with—the evidence before the Court. (See also Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578 (the Court is only permitted to consider as evidence “the declarations filed in support of and in opposition to the motion” but not “an unverified “Statement of Facts” [or] memoranda of points and authorities.”)) Kim fails to identify any factual support for his belief that Mr. Lee had agreed not to “accept other representations adverse” to Kim’s interests where Mr. Lee had no individual contacts with Kim. (See RFJN, Ex. F (Judge Lyons’ 10/17/19 Order finding no evidence of an attorney-client relationship between Mr. Lee and Kim.)) Therefore, under Responsible Citizens, the Court finds Mr. Lee did not have an attorney-client relationship with Kim. The foregoing accepts the evidence introduced by Kim as credible for sake of argument—the Court recognizes that Mr. Lee disputes such call(s) took place, but even assuming the calls took place, no attorney-client relationship would thereby exist.

Fiduciary Trust International of California v. Superior Court (2013) 218 Cal.App.4th 465 is similarly distinguishable. It was undisputed in that case that the disqualified attorney had had an (express) attorney-client relationship with both the husband and the wife in setting up their marital trust. Here, Kim has not established an express or implied attorney-client relationship with Mr. Lee individually. “[R]epresentation of individual partners does not automatically flow from representation of the partnership. Something more is required to create an attorney-client relationship with a partner.” (Responsible Citizens, supra, 16 Cal.App.4th at 1731.)

Johnson v. Superior Court (1995) 38 Cal.App.4th 463 is also distinguishable. The Johnson court, despite applying the Responsible Citizens factors discussed above, did not address whether an attorney representing a partnership also represented the individual partners. (Id. at 479 (“Whether this constituted Neils an attorney, literally, for the individual limited partners, is of no great moment.”)) Instead, the Johnson court addressed whether the partnership attorney’s duty of loyalty to the partnership extends to “all partners in terms of their entitlement to benefits from the partnership” and, on the facts presented, found the duty of loyalty would so extend “if the facts presented on summary adjudication are proved at trial.” (Id. at 479.) The attorney therefore would have “had a duty to the partnership to look out for all the partners' interests, and if this could not be accomplished because of conflicts of interest among them he had a duty to terminate the representation” if those facts were established. (Id. at 478.) As discussed above, Kim has provided insufficient evidence that a relationship exists under Responsible Citizens. The posture is therefore quite different than in Johnson.

Here, Kim is unable to show “conflicts of interest among” the partners such that Mr. Lee would be required to withdraw from representing HJC under Johnson. Johnson is distinguishable in one key respect: the attorney formally represented the partnership, MHP, but performed work for the general partner, TEI, which was “to the detriment of the partnership” and the benefit of TEI. (Id. at 478.) This “violated his duty of care and loyalty to the partnership,” his actual client. (Id.) As a result, the “partnership would have had a cause of action against Neils, and failing the institution of such, the limited partners could have brought a derivative action.” (Id.) Here, it is not contended that Mr. Lee performed work for KT Kim at Gabriel Kim’s expense, as was the case in Johnson. Johnson is therefore distinguishable.

Disqualification—Witness Advocate Rule

Further, Kim has not made a showing sufficient to invoke the witness advocate rule. When “an adversary declares his intent to call opposing counsel as a witness, prior to ordering disqualification of counsel, the court should determine whether counsel's testimony is, in fact, genuinely needed.” (Reynolds v. Superior Court (1986) 177 Cal.App.3d 1021, 1028.) Factors relevant to necessity include “the significance of the matters to which he might testify, the weight his testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which these matters may be independently established.” (Comden v. Superior Court (1978) 20 Cal.3d 906, 913.)

Here, Kim seeks to disqualify Mr. Lee on the grounds that Kim “wishes to know whether Mr. Lee as the only legal adviser for HJC was ever asked by HJC (or any of its affiliates controlling HJC), in 2017, to prepare any corporate documents to reflect that Kim was to have a membership interest in HJC upon Kim’s money transfer to HJC.” (Reply at p. 3:21-24.) Kim admits Mr. Lee does not have exclusive knowledge of this issue, but argues Youngsoo Yoo “cannot be obtained practically as a witness for testimony relating to this issue” because Yoo lives in Korea and is no longer affiliated with HJC and PNA. (Id. at p. 4:1-3.)

While the “availability of other witnesses” is a necessity factor, the availability of other “documentary evidence” is an adequate substitute for witness testimony. (Comden, supra, at 913.) Kim has not shown that documentary evidence would be inadequate, particularly as Kim is seeking documentary evidence to support his alter ego theory in the deposition subpoena that is the subject of HJC’s motion to quash. More importantly, Kim does not address Mr. Lee’s arguments that his testimony on these matters would be inadmissible, much less Judge Lyons’ previous conclusions on that point. (Opposition at p. 9:19-24; see RFJN Ex. F (10/17/19 Order finding Mr. Lee’s testimony on these matters would likely be inadmissible.)). Indeed, Kim indicates he “did try to depose Mr. Lee in preparing to try the TNIS case” by issuing a subpoena (Jung Decl., para. 5), but Mr. Lee “objected, refusing to appear and testify.” (Reply at p. 4:20-22.) Kim does not clarify whether he moved to compel Mr. Lee’s attendance and, if so, whether the Court found Mr. Lee’s refusal appropriate. The Court finds mere service of a subpoena minimally significant if Kim did not seek to force Mr. Lee to comply, particularly if there are credible issues as to whether Mr. Lee’s testimony would be admissible. The Court is similarly unpersuaded by Kim’s argument that HJC’s failure to produce its retainer agreement with Mr. Lee “should be construed against [it] in determining whether Mr. Lee owes a duty of loyalty” to Kim. It is unclear to the Court why Kim, as one of only two HJC partners, is unable to produce the retainer agreement.

In sum, Kim has not shown that the matters Mr. Lee would testify about are “significant” or that Mr. Lee’s testimony would have great weight in resolving those matters. Kim seeks testimony regarding his alter ego theory—which may be adequately supported by the documents sought in Kim’s deposition subpoena. Kim seeks testimony regarding whether Mr. Lee was instructed to prepare documents reflecting a membership interest on the theory that, if Mr. Lee was not so instructed, this would be prima facie evidence of intent to defraud. Such testimony would not have great weight in resolving the “intent to defraud” element; moreover, Kim has not addressed Mr. Lee’s arguments that such testimony would be inadmissible. Further, it is not clear that this potential circumstantial evidence of intent to defraud is sufficiently significant to override a party’s right to choose their own counsel.

Finally, the Court observes that Judge Lyons already denied a motion on the same grounds back in October. Judge Lyons found “Kim has failed to meet his burden to show Lee had an attorney-client relationship with Kim individually” because Kim “list[ed] things Lee did not do only” and failed to provide evidence of affirmative actions or communications between him and Mr. Lee. (RFJN Ex. F.) Further, Kim did “not say Lee told him to sign the Operating Agreement or Option Agreement; that directive came from” Youngsoo Yoo. (Id.) Judge Lyons also addressed Kim’s witness advocacy argument, finding Kim had not shown Mr. Lee’s testimony was genuinely needed and that the issues for which Kim sought Mr. Lee’s testimony were “not significant.” (Id.) Given that Judge Lyons has already assessed and rejected the same arguments Kim asserts here, this Motion is in effect an untimely motion for reconsideration; moreover, to the extent Kim alleges new facts, Kim offers no explanation for his failure to provide those facts to Judge Lyons. Kim’s point that this is a separate action is not convincing, as this action and the TNIS action were consolidated months before Kim filed this Motion. 

In sum: Kim has not established an attorney-client relationship with Mr. Lee, whether by direct agreement or indirectly through Mr. Lee’s representation of HJC. Kim therefore lacks standing to seek Mr. Lee’s disqualification. (Burman, supra, 186 Cal.App.4th at 1356.) Further, Kim has not shown that Mr. Lee’s testimony is “genuinely needed” for any significant issue. Therefore, the Motion is DENIED.

Quash Depo Subpoena

The Court has reviewed the Motion to Quash and the parties’ Joint Statement filed July 23, 2020. The Court recognizes that Kim has “narrow[ed] down the scope of documents being sought” to bank statements, bank account applications “and other documents showing authorized signers of the checking accounts of HJC and PNA,” check images, and loan applications of HJC and PNA. (Joint Statement at p. 3.)

The Motion to Quash is DENIED.

The Court rejects HJC’s objection that the matters sought are insufficiently specified under Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216. Kim has voluntarily narrowed and further specified the documents sought in the subpoena; the documents are sought only insofar as they are relevant to Kim’s alter ego theory as to HJC and PNA, specifically lack of corporate formalities and inadequate capitalization. The requests are therefore “reasonably particularized” as narrowed in the Joint Statement.

The Court rejects HJC’s burden objections. An “objection based upon burden must be sustained by evidence showing the quantum of work required.” (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) HJC fails to provide any evidence of “the quantum of work required” to respond, merely asserting the requested discovery is “unduly burdensome.”

The Court rejects HJC’s relevance and overbreadth objections. First, Evid. Code sec. 210 defines relevant evidence as “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” “The test of relevance is whether the evidence tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.” (People v. Garceau (1993) 6 Cal.4th 140, 177.) Here, the discovery at issue is sought to establish alter ego identity between HJC and PNA, and Kim has adequately explained how the discovery sought would tend to show inadequate capitalization and lack of corporate formalities (central factors in finding an entity is an alter ego of another). Further, the Court recognizes that Kim has now narrowed the scope of discovery and does not find the requests, as narrowed, to be overbroad.

The Court rejects HJC’s unsupported objections on the basis of unspecified privileges and constitutional privacy rights possessed by third parties. Once cognizable privacy objections are raised, “relevancy to the subject matter” is not the standard; the Court must determine whether the information is essential to determining the truth of the matters in dispute. (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) “The right to privacy in the California Constitution protects the individual’s reasonable expectation of privacy against a serious invasion.” (Crab Addison, Inc. v. Superior Court (2008) 169 Cal.App.4th 958, 966.) HJC has not identified the third parties whose privileges and rights are invoked, nor shown that compliance with Kim’s requests would constitute a “serious” invasion of those privileges or rights. HJC fails to cite authority relating to required consumer notices. The Court therefore rejects the privacy and privilege objections.

The Court further rejects HJC’s argument that the request for current bank account information is disallowed as a veiled attempt at a judgment debtor exam. HJC and PNA’s current bank account information is relevant to Kim’s alter ego theory, and therefore discoverable on that basis. Relevant discovery does not become irrelevant or improper to seek merely because the discovery would additionally be relevant to HJC and PNA’s ability to pay a judgment. There is no evidence that the primary purpose of this discovery is to conduct an improper judgment debtor exam, even if that is an unintended or unavoidable consequence of the discovery sought.

The Motion to Quash is therefore DENIED and HJC’s request for sanctions is DENIED.

CONCLUSION

The Motion to Disqualify Counsel is DENIED.

The Motion to Quash Deposition Subpoena is DENIED.

HJC to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.