PiLLs r
2 7H 7
6 IN THE SUPERIOR COURT OF GUAM 7
8 SONG-CHUKO, CiVIL CASE NO. CVO211-19 9 Plaintiff, 10 DECISION AND ORDER 11 vs.
12 WiLLIAM KANG, 13
14 Defendant.
15 INTRODUCTION 16 This matter came before the Honorable Vernon P. Perez on September 9, 2021, for 17 hearing on Plaintiff Song-Chu Ko’s (“Plaintiff’) Motion for Sanctions. Present remotely via 18 Zoom was Attorney William B. Brennan on behalf of Plaintiff. Defendant William Kang 19 (“Defendant”) was not present, and currently represents himself pro se. Having reviewed the 20 pleadings, the arguments presented, and the record, the Court now issues the following Decision 21 and Order GRANTING Plaintiffs Motion for Sanctions. 22 BACKGROUND 23 This matter commenced on April 2, 2019 with the filing of Plaintiff’s Verified 24 Complaint for a Temporary Restraining Order, Preliminary and Permanent Injunctions, and 25 Damages. On April 26, 2019, Defendant filed his Answer and Counterclaim, also seeking 26 damages and restraining orders against Plaintiff. The parties are mutually restrained from 27 contacting each other and are ordered not to harass, abuse, threaten, disturb the peace and well- 28
Ko vs. Kang Case No. CVO21 1-19 Decision and Order
Page 1 of 5 1 being of each other, pursuant to orders issued by the Court in a Preliminary Injunction and 2 Restraining Order filed May 10, 2019. Defendant was initially represented in this matter by 3 Attorney Joshua Walsh, and later represented by Attorney Jeffrey A. Cook. See Substitution of 4 Counsel, Mar. 26, 2019. 5 On October 29, 2020, Attorney Cook filed a Motion to Withdraw as Counsel for 6 Defendant, indicating that Defendant “could not afford to fight the case and wanted to drop the 7 case,” that Defendant “approved a letter from me to Plaintiff’s counsel advising Plaintiff’s 8 counsel of Mr. Kang’s intention not to pursue defending or protecting this lawsuit,” and that he 9 has not had any contact with Defendant since an email sent on August 12, 2020, and that 10 Defendant did not respond to an October 8, 2020 letter requesting he sign a substitution of ii counsel substituting Attorney Cook out and Defendant representing himself in pro se. (Decl. of 12 Attorney Cook, Oct. 29, 2020). See also Mot. Withdraw at 2-3, Oct. 29, 2020. On November 13 19, 2020, the Court granted Attorney Cook’s Motion to Withdraw. (Minute Entry, Nov. 19, 14 2020; Order Granting Mot. Withdraw as Counsel, Aug. 11, 2021). is On June 22, 2021, Plaintiff filed the instant Motion, moving the Court to sanction 16 Defendant for his nonappearance and failure to participate in this matter. Also filed in support 17 of the Motion for Sanctions on June 22, 2021 were a Declaration of Counsel and a GRCP Rule 18 37 and CVR 37.1 Stipulation.’ No response to the Motion was filed by Defendant. The Court 19 first set the matter for hearing on August 10, 2021, and then continued the Motion Hearing to 20 September 9, 2021 to ensure Defendant was served notice of the hearing. Defendant did not 21 appear at the September 9, 2021 hearing. At the conclusion of the September 9, 2021 Motion 22 Hearing, the Court gave its inclinations on the record and placed the matter under advisement. 23 DISCUSSION 24 Plaintiff first moves the Court to sanction Defendant for his nonappearance at a noticed
25 deposition on January 13, 2021 by ordering Defendant to pay Plaintiff the reasonable costs
27 Although captioned as a Stipulation pursuant to GRCP Rule 37, Defendant did not sign the Stipulation, with Plaintiff setting forth on page 2 of the Stipulation that “Defendant failed to respond with his position related to the 28 Plaintiff’s Motion for Sanctions.”
Ko vs. Kang Case No. CVO2Y 1-19 Decision and Order
Page 2 of 5 i incurred in setting up the deposition and the costs of bringing the instant Motion. See Mot. 2 Sanctions at 4-5, Jun. 22, 2021. Rule 37 of the Guam Rules of Civil Procedure provides for 3 relief for a party when there is a failure of another party to make disclosure or cooperate in 4 discovery. Pursuant to Rule 37, if a party fails to appear for his/her own deposition after being 5 served with a proper notice, “the court shall require the party failing to act or the attorney 6 advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by 7 the failure unless the court finds that the failure was substantially justified or that other 8 circumstances make an award of expenses unjust.” Guam R. Civ. P. 37(d). 9 Here, there is no dispute that Defendant was properly noticed, that Defendant failed to 10 appear, or that Defendant’s failure to appear was not substantially justified. Defendant has not 11 provided counsel for Plaintiff or this Court any explanation for his failure to appear at his 12 properly noticed deposition. further, there are no other circumstances before the Court at this 13 time indicating that an award of expenses would be unjust. Therefore, pursuant the Rule 37, the 14 Court must require Defendant to pay reasonable expenses, including attorney fees, caused by 15 Defendant’s failure to appear at the deposition. The Court ORDERS Defendant to pay Plaintiff 16 reasonable costs incurred in the noticed deposition on January 13, 2021 in arranging the 17 depositions via the court reporter as well as reasonable attorney’s fees incurred in bringing the 18 instant Motion. 19 Plaintiff also moves the Court to sanction Defendant beyond fees and costs by striking 20 Defendant’s Answer and entering default against him. (Mot. Sanctions at 5-9). Plaintiff argues 21 default against Defendant is warranted as a Rule 37 sanction “due to [Defendant’sj willful 22 conduct that has frustrated the Plaintiff’s attempts at discovery since October of 2020.” Id. at 23 10. Rule 37 also provides for default judgments as an available sanction for discovery 24 violations and failing to comply with a court order. See Guam R. Civ. P. 37(b)(2)(C) (“An 25 order striking out pleadings or parts thereof, or staying further proceedings until the order is 26 obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by 27 default against the disobedient party.”). The Court has the “discretion to impose the extreme 28 sanction of dismissal or default where there has been flagrant, bad faith disregard of discovery
Ko vs. Kong Case No. CVO2I1-19 Decision and Order
Page 3 of 5 i duties.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990) (citing National Hockey 2 League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976). 3 To determine whether default is appropriate as a Rule 37 sanction, the Court considers: 4 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 5 dockets; (3) the risk of prejudice to [the party seeking sanctions]; (4) the public policy favoring 6 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. (citing 7 Malone v. U.S. Postal Service, 833 f.2d 128, 130 (9th Cir. 1987)) (alteration in original). “The 8 first two of these factors favor the imposition of sanctions in most cases, while the fourth cuts
9 against a default or dismissal sanction. Thus the key factors are prejudice and availability of 10 lesser sanctions.” Id. 11 Here, Defendant has frustrated Plaintiff’s ability to complete discovery, despite attempts 12 by Plaintiff’s counsel to communicate with Defendant since October 2020. Although public 13 policy favors addressing this matter on the merits, Defendant is not participating at all.
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PiLLs r
2 7H 7
6 IN THE SUPERIOR COURT OF GUAM 7
8 SONG-CHUKO, CiVIL CASE NO. CVO211-19 9 Plaintiff, 10 DECISION AND ORDER 11 vs.
12 WiLLIAM KANG, 13
14 Defendant.
15 INTRODUCTION 16 This matter came before the Honorable Vernon P. Perez on September 9, 2021, for 17 hearing on Plaintiff Song-Chu Ko’s (“Plaintiff’) Motion for Sanctions. Present remotely via 18 Zoom was Attorney William B. Brennan on behalf of Plaintiff. Defendant William Kang 19 (“Defendant”) was not present, and currently represents himself pro se. Having reviewed the 20 pleadings, the arguments presented, and the record, the Court now issues the following Decision 21 and Order GRANTING Plaintiffs Motion for Sanctions. 22 BACKGROUND 23 This matter commenced on April 2, 2019 with the filing of Plaintiff’s Verified 24 Complaint for a Temporary Restraining Order, Preliminary and Permanent Injunctions, and 25 Damages. On April 26, 2019, Defendant filed his Answer and Counterclaim, also seeking 26 damages and restraining orders against Plaintiff. The parties are mutually restrained from 27 contacting each other and are ordered not to harass, abuse, threaten, disturb the peace and well- 28
Ko vs. Kang Case No. CVO21 1-19 Decision and Order
Page 1 of 5 1 being of each other, pursuant to orders issued by the Court in a Preliminary Injunction and 2 Restraining Order filed May 10, 2019. Defendant was initially represented in this matter by 3 Attorney Joshua Walsh, and later represented by Attorney Jeffrey A. Cook. See Substitution of 4 Counsel, Mar. 26, 2019. 5 On October 29, 2020, Attorney Cook filed a Motion to Withdraw as Counsel for 6 Defendant, indicating that Defendant “could not afford to fight the case and wanted to drop the 7 case,” that Defendant “approved a letter from me to Plaintiff’s counsel advising Plaintiff’s 8 counsel of Mr. Kang’s intention not to pursue defending or protecting this lawsuit,” and that he 9 has not had any contact with Defendant since an email sent on August 12, 2020, and that 10 Defendant did not respond to an October 8, 2020 letter requesting he sign a substitution of ii counsel substituting Attorney Cook out and Defendant representing himself in pro se. (Decl. of 12 Attorney Cook, Oct. 29, 2020). See also Mot. Withdraw at 2-3, Oct. 29, 2020. On November 13 19, 2020, the Court granted Attorney Cook’s Motion to Withdraw. (Minute Entry, Nov. 19, 14 2020; Order Granting Mot. Withdraw as Counsel, Aug. 11, 2021). is On June 22, 2021, Plaintiff filed the instant Motion, moving the Court to sanction 16 Defendant for his nonappearance and failure to participate in this matter. Also filed in support 17 of the Motion for Sanctions on June 22, 2021 were a Declaration of Counsel and a GRCP Rule 18 37 and CVR 37.1 Stipulation.’ No response to the Motion was filed by Defendant. The Court 19 first set the matter for hearing on August 10, 2021, and then continued the Motion Hearing to 20 September 9, 2021 to ensure Defendant was served notice of the hearing. Defendant did not 21 appear at the September 9, 2021 hearing. At the conclusion of the September 9, 2021 Motion 22 Hearing, the Court gave its inclinations on the record and placed the matter under advisement. 23 DISCUSSION 24 Plaintiff first moves the Court to sanction Defendant for his nonappearance at a noticed
25 deposition on January 13, 2021 by ordering Defendant to pay Plaintiff the reasonable costs
27 Although captioned as a Stipulation pursuant to GRCP Rule 37, Defendant did not sign the Stipulation, with Plaintiff setting forth on page 2 of the Stipulation that “Defendant failed to respond with his position related to the 28 Plaintiff’s Motion for Sanctions.”
Ko vs. Kang Case No. CVO2Y 1-19 Decision and Order
Page 2 of 5 i incurred in setting up the deposition and the costs of bringing the instant Motion. See Mot. 2 Sanctions at 4-5, Jun. 22, 2021. Rule 37 of the Guam Rules of Civil Procedure provides for 3 relief for a party when there is a failure of another party to make disclosure or cooperate in 4 discovery. Pursuant to Rule 37, if a party fails to appear for his/her own deposition after being 5 served with a proper notice, “the court shall require the party failing to act or the attorney 6 advising that party or both to pay the reasonable expenses, including attorney’s fees, caused by 7 the failure unless the court finds that the failure was substantially justified or that other 8 circumstances make an award of expenses unjust.” Guam R. Civ. P. 37(d). 9 Here, there is no dispute that Defendant was properly noticed, that Defendant failed to 10 appear, or that Defendant’s failure to appear was not substantially justified. Defendant has not 11 provided counsel for Plaintiff or this Court any explanation for his failure to appear at his 12 properly noticed deposition. further, there are no other circumstances before the Court at this 13 time indicating that an award of expenses would be unjust. Therefore, pursuant the Rule 37, the 14 Court must require Defendant to pay reasonable expenses, including attorney fees, caused by 15 Defendant’s failure to appear at the deposition. The Court ORDERS Defendant to pay Plaintiff 16 reasonable costs incurred in the noticed deposition on January 13, 2021 in arranging the 17 depositions via the court reporter as well as reasonable attorney’s fees incurred in bringing the 18 instant Motion. 19 Plaintiff also moves the Court to sanction Defendant beyond fees and costs by striking 20 Defendant’s Answer and entering default against him. (Mot. Sanctions at 5-9). Plaintiff argues 21 default against Defendant is warranted as a Rule 37 sanction “due to [Defendant’sj willful 22 conduct that has frustrated the Plaintiff’s attempts at discovery since October of 2020.” Id. at 23 10. Rule 37 also provides for default judgments as an available sanction for discovery 24 violations and failing to comply with a court order. See Guam R. Civ. P. 37(b)(2)(C) (“An 25 order striking out pleadings or parts thereof, or staying further proceedings until the order is 26 obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by 27 default against the disobedient party.”). The Court has the “discretion to impose the extreme 28 sanction of dismissal or default where there has been flagrant, bad faith disregard of discovery
Ko vs. Kong Case No. CVO2I1-19 Decision and Order
Page 3 of 5 i duties.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990) (citing National Hockey 2 League v. Metro Hockey Club, Inc., 427 U.S. 639, 643 (1976). 3 To determine whether default is appropriate as a Rule 37 sanction, the Court considers: 4 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 5 dockets; (3) the risk of prejudice to [the party seeking sanctions]; (4) the public policy favoring 6 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Id. (citing 7 Malone v. U.S. Postal Service, 833 f.2d 128, 130 (9th Cir. 1987)) (alteration in original). “The 8 first two of these factors favor the imposition of sanctions in most cases, while the fourth cuts
9 against a default or dismissal sanction. Thus the key factors are prejudice and availability of 10 lesser sanctions.” Id. 11 Here, Defendant has frustrated Plaintiff’s ability to complete discovery, despite attempts 12 by Plaintiff’s counsel to communicate with Defendant since October 2020. Although public 13 policy favors addressing this matter on the merits, Defendant is not participating at all. This has 14 prejudiced Plaintiff as he is unable to ascertain Defendant’s knowledge of the facts forming the is basis of this matter or to defend against Defendant’s counterclaim. Most significantly, 16 according to Defendant’s prior counsel, Defendant advised him “based on numerous reasons he 17 could not afford to fight the case and he wanted to drop the case,” and that he “approved a letter
18 from me to Plaintiff’s counsel advising Plaintiffs counsel of [his] intention not to pursue
19 defending or protecting this lawsuit.” (Decl. of Counsel in Support of Mot. Withdraw, Oct. 29, 20 2020). Therefore, although it could order Defendant to participate in a deposition as an 21 alternative to striking Defendant’s Answer and Counterclaim, the Court finds such an order 22 would be unavailing. Accordingly, the Court finds that default should be entered against the
23 Defendant.
24 CONCLUSION 25 For the foregoing reasons, the Court hereby GRANTS Plaintiffs Motion for Sanctions. 26 The Court ORDERS Defendant to pay Plaintiff reasonable costs incurred in the noticed
27 deposition on January 13, 2021 in arranging the depositions via the court reporter as well as
28 reasonable attorney’s fees incurred in bringing the instant Motion. Plaintiff shall submit for the
Ko vs. Kong Case No. CVO2 11-19 Decision and Order
Page 4 of 5 . I Court’s review his reasonable costs incurred prior to the hearing set forth below. Further, the 2 Court hereby STRIKES Defendant’s Answer and Counterclaim filed April 26, 2019, and 3 ENTERS DEFAULT against Defendant on Plaintiff’s first Amended Verified Complaint for 4 Temporary Restraining Order, Preliminary and Permanent Injunctions, and Damages. A 5 Default Hearing is set for MVev’ at via Zoom: Meeting ID: 32$- 6 483-6667; Passcode: 992379. 7 IT IS SO ORDERED this day of October, 2021. 8
11 HONORABLE VERNON P. PEREZ Judge, Superior Court of Guam 12
21 SERVICE VIA E-MAa acknowledge that an electronic 22 of copy the original was e-mailed to:
23 A tA) J&’ 24 Date: iime:iP/ ‘itz 25 Joseph Samba, Jr. Deputy Clerk, Superior Court ofGuam 26
Ko vs. Kong Case No. CVO2YI-19 Decision and Order
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