Case Number: BC678130 Hearing Date: September 10, 2019 Dept: 47

Steve Shin Sok Chon v. Cindy Heesung Chon

MOTION FOR RECONSIDERATION AND CLARIFICATION OF THE COURT’S APRIL 24, 2019 ORDER DENYING DEFENDANT’S MOTION TO QUASH THIRD PARTY SUBPOENAS OF PACIFIC CITY BANK

MOVING PARTY: Defendant Cindy Heesung Chon

RESPONDING PARTY(S): Plaintiff Steve Shin Sok Chon

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that he and Defendant (his daughter) agreed that Plaintiff would loan Defendant a certain amount of money which Defendant would use to purchase real property, and when the property was sold, Plaintiff would receive his investments back, plus profits in the amount of his percentage ownership in the properties, proportionate to his share of funds contributed toward the purchase price. Defendant also allegedly transferred Plaintiff’s burial plot to Defendant’s name without authorization.

Defendant moves for reconsideration and clarification of the Court’s April 24, 2019 order denying her motion to quash third-party subpoenas for production of bank records from Pacific City Bank as to Defendant and her late mother (and Plaintiff’s late ex-wife), Boh Hee Chon.

TENTATIVE RULING:

Defendant Cindy Heesung Chon’s motion for reconsideration and clarification of the Court’s April 24, 2019 order denying Defendant’s motion to quash third party subpoenas of Pacific City Bank is DENIED with prejudice.

Plaintiff’s request for sanctions is DENIED.

DISCUSSION:

Motion for Reconsideration

Defendant seeks reconsideration of the Court’s order denying her motion to quash a third-party subpoena directed to Pacific City Bank.

CCP § 1008 provides, in relevant part:

(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

* * *

(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.

(CCP § 1008(b), (d), (e) (bold emphasis added).)

In connection with a motion for reconsideration, there must be “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; see also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658 (“With regard to new facts, ‘ “ ‘the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.’ ” ’ (Citations omitted.)).

In addition to raising arguments that have nothing to do with the Court’s order denying the motion to quash, Defendant argues that “new or different facts, circumstances or law” exist because the Court “referenced a new theory of potential liability” – that “Plaintiff may had [sic] a community property interest in assets obtained by Defendant by [sic] her mother” – in its ruling. (Motion, at p. 4.) Defendant argues she has “new evidence” that Defendant cannot allege this theory, and therefore her motion to quash the subpoenas should not have been denied. This argument is not persuasive.

Defendant’s motion was denied on a number of grounds, including (1) it was filed “beyond the December 6, 2018 discover[y] cutoff date” (Ruling, at p. 2.); (2) Defendant did not “submit a separate statement, as required by CRC Rule 3.1345(a)(5)” (Ibid.); and (3) “Plaintiff has a need to discover whether Defendant committed elder abuse against Plaintiff by converting CDs held in the name of Boh Hee Chon which would presumably be community property as to funds acquired during the marriage between Plaintiff and Boh Hee Chon which outweighs Defendant’s right of privacy in her bank records.” (Id. at p. 3.) As to this last point, the Court specifically considered and rejected the same argument Defendant claims is “new” in this motion:

Moving party may be correct that this claim may not turn out to be legally viable, in view of the apparent divorce decree rendered between Plaintiff and his late-wife; however, this does not prevent, per se, the Plaintiff’s right to discover the facts so he may attempt to assert such an additional claim. That bridge will be crossed at that time, if needed.

(Id. at p. 3 n.1.)

The viability of any potential additional claims was not at issue in the context of the motion to quash; as the Court noted, “it is well settled law that a Plaintiff is entitled to conduct discovery to determine whether there [are] grounds for asserting any additional claims.” (Id. at p. 3 (bold emphasis added).)

Thus, Plaintiff has not presented any new or different facts, law or circumstances which were not previously considered by the Court in issuing its April 24, 2019 ruling. Accordingly, the motion for reconsideration is DENIED.

Request for Clarification

As for Defendant’s request that the Court clarify whether Plaintiff is entitled to ten years of records from April 24, 2019 or when the subpoena was first sent, the Court does not feel that further clarification is required. Denying the motion to quash the subpoena means that the subpoena remains “as is.” Defendant is directed to the subpoena itself.

Accordingly, Defendant’s request for clarification is DENIED.

Plaintiff’s Request for Sanctions

Buried on the second-to-last page of his opposition – and not noticed in its caption – Plaintiff vaguely argues that “sanctions are appropriate,” referencing both CCP § 128.5 and § 128.7. (Oppo., at p. 5.) The amount of sanctions requested is not mentioned outside of the Declaration of Attorney Albert Ng, which requests sanctions in the amount of $1,000. The person or entity against whom sanctions are sought is never mentioned. See e.g., CCP § 2023.040 [Request for sanctions involving the discovery process must “identify each person, party, and attorney against whom sanctions is sought.”]

A motion for sanctions under either CCP § 128.5 or § 128.7 must be “made separately from other motions or requests.” (CCP § 128.5(f)(1)(A) (emphasis added); CCP § 128.7(c)(1) (emphasis added).) The fact that CCP § 1008(d) provides that a violation of that section “may be punished as a contempt and with sanctions as allowed by Section 128.7” does not do away with the requirements of that section.

Plaintiff’s request for sanctions is DENIED based upon these procedural defects.[1]

IT IS SO ORDERED.

DATE: September 10, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] However, if there were no such procedural defects, this Court agrees with Plaintiff that sanctions were warranted against Defendant’s attorneys for this utterly specious motion, which should never have been filed in the first place.