Choi v. Kang CA2/2

Filed 1/31/23 Choi v. Kang CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SOO OK CHOI, B316549

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC692532)
v.

SAMUEL JINKYOO KANG et al.,

Defendants and Appellants.

APPEAL from an order and judgment of the Superior Court
of Los Angeles County. Holly J. Fujie, Judge. Affirmed in part,
reversed and remanded in part.

David S. Kim & Associates, David S. Kim and Todd A.
Fuson for Defendants and Appellants.

Medvei Law Group and Sebastian M. Medvei for Plaintiff
and Respondent.
______________________________
 A default judgment was entered in favor of plaintiff and
respondent Soo Ok Choi and against defendants and appellants
Samuel Jinkyoo Kang (Kang), NIW USA, Inc. (NIW), REX
Counselor, Inc. (REX), and Yoonsun Ban (Ban) following:
(1) REX and Ban’s failure to answer plaintiff’s first amended
complaint (FAC), and (2) the trial court’s order imposing
terminating sanctions against Kang and NIW for failure to
comply with discovery orders (Code Civ. Proc., § 2023.030, subd.
(d)).1 Defendants appeal, arguing that the trial court erred in
imposing terminating sanctions and entering a default judgment
for excessive damages.2
We affirm in part and reverse in part. We conclude that
the trial court did not abuse its discretion in imposing
terminating sanctions against Kang and NIW for their failure to
comply with discovery orders. However, we agree with
defendants that the damage award must be reversed because it
exceeds the amount identified in the FAC.
FACTUAL AND PROCEDURAL BACKGROUND
The pleadings
On February 1, 2018, plaintiff brought this action against
defendants (and others) alleging violation of the Immigration
Consultants Act (the ICA; Bus. & Prof. Code, § 22440 et seq.). In
the operative FAC, she sought, inter alia, general and special
damages, treble damages, and civil penalties in the amount “of

1
All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.

2
Defendants do not challenge the entry of Ban and REX’s
defaults as a result of their failure to answer the FAC.

2
$100,000 for each individual violation of the ICA, estimated to
exceed $2,000,000.” And, she requested costs and attorney fees.
As is relevant to the issues raised in this appeal, Kang and
NIW filed an answer to the FAC. Ban and REX never answered
the FAC and their defaults were entered.
Order to comply with plaintiff’s discovery requests (Dec. 2, 2019)
Early in the litigation, plaintiff served a number of
discovery requests upon defendants, including, inter alia, special
interrogatories to Kang and a request for production of
documents to NIW. Defendants objected, and the parties met
and conferred in an effort to resolve their dispute. When no
resolution was reached, plaintiff brought multiple motions to
compel further responses to the discovery.3
In advance of those motions, the trial court ordered the
parties to attend an informal discovery conference on
December 2, 2019. At that conference, the parties stipulated to
the issuance of the following order: “Defendants shall serve
complete, code-compliant and verified responses to [three sets of
form interrogatories, four sets of requests for admission, one set
of special interrogatories, and three sets of requests for
production of documents] by December 31, 2019, close of
business.”
Order to comply with trial court order compelling defendants to
respond to plaintiff’s discovery requests (Aug. 11, 2020)
When defendants failed to provide the court-ordered
discovery responses, plaintiff brought a motion to compel

3
These motions are not part of the appellate record.

3
compliance with the trial court’s December 2, 2019, order.
Plaintiff also requested terminating sanctions.
Defendants failed to oppose the motion and did not appear
at the hearing.
On August 11, 2020, the trial court denied plaintiff’s
request for terminating sanctions: “The Court finds that while
Defendants failed to comply with the Court’s December 2, 2019
. . . 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.” However, the trial court did
order defendants to comply with the December 2, 2019, order and
provide “complete, code-compliant, and verified discovery
responses” by no later than September 4, 2020. The trial court
continued: “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.”
Second order to comply with trial court order compelling
defendants to respond to plaintiff’s discovery requests (Oct. 22,
2020)
When defendants failed to provide discovery responses by
September 4, 2020, plaintiff brought another motion for
terminating sanctions. Again, defendants failed to oppose the
motion.
On October 22, 2020, the trial court again ordered
defendants “to provide code-compliant verified responses without
objections” by October 29, 2020. In so ruling, the trial court
again warned defendants that if they failed to comply, plaintiff
could file an ex parte application for terminating sanctions.

4
Defendants partially comply with the trial court order; plaintiff’s
ex parte application for terminating sanctions
On October 29, 2020, defendants provided partial responses
to plaintiff’s discovery requests. Missing was any response from
NIW to the request for production of documents propounded to it
and any response from Kang to the special interrogatories
propounded to him.
Defendants’ counsel submitted a declaration in opposition
to the ex parte application. He averred that when he emailed the
discovery responses, he “could not email the documents, because
the file was too large, even sent by itself. I e-mailed counsel
separately, stating this fact, and assuring him I would produce
the documents the next day, by personal service. This did
occur—I brought the documents (and printouts of all the
discovery responses) to Plaintiff’s counsel’s office myself and
personally handed it in an envelope to the receptionist.”
Counsel added: “In addition when emailing the documents,
I inadvertently failed to include one document, Defendant Kang’s
responses to Special Interrogatories, although that document had
been created and verified. . . . The Responses to Special
Interrogatories [were] also served personally in the envelope to
counsel’s office.”
After entertaining oral argument, the trial court denied
plaintiff’s ex parte application.4

4
We were not provided with a reporter’s transcript or settled
statement setting forth the trial court’s reasons for denying the
ex parte application.

5
Third order to comply with trial court order compelling
defendants to respond to plaintiff’s discovery requests (Jan. 12,
2021)
Because defendants’ responses to her discovery requests
were still defective, on or about November 30, 2020, plaintiff
brought another motion for terminating sanctions.
The trial court denied plaintiff’s request for terminating
sanctions: “Plaintiff’s counsel . . . 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. . . .
[Counsel], 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 [defense counsel’s] declaration . . . that discovery
obligations were satisfied by Kang and NIW in their entirety; and
(2) attachment to [defense counsel’s] declaration . . . for the Court
to ascertain the sufficiency of Kang and NIW’s discovery
responses.” Thus, the trial court expressly “exercise[d] its
discretion and [found] that terminating sanctions [were] not
appropriate at [that] time.”
“The Court, however, [did] order Defendants to comply with
the Court’s October 22, 2020 discovery order in its entirety given
that Defendants present[ed] no evidence of compliance.
Defendants [were] 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

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following discovery: (1) NIW [was] to provide responses to
Plaintiff’s Request for Production of Documents, Set One; and
(2) Kang [was] ordered to provide responses to Plaintiff’s Special
Interrogatories, Set One.” Defendants were cautioned: “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.”
Order for terminating sanctions (Feb. 25, 2021)
Defendants again did not comply, prompting plaintiff to
bring yet another motion for terminating sanctions. Defendants
did not file an opposition to the motion, although defense counsel
submitted a responsive declaration. He averred that “there is no
evidence that Defendants have not complied with the Court’s
discovery orders.”
On February 25, 2021, the trial court granted plaintiff’s
motion, reasoning: “Given Defendants’ history of not complying
with this Court’s discovery orders and the lack of opposition to
the Motion, the Court GRANTS the Motion.” Kang and NIW’s
defaults were entered.
Judgment and appeal
Plaintiff then submitted her default judgment package to
the trial court. The packet was supported by declarations from
plaintiff and her attorney, detailing defendants’ violations of the
ICA.
Ultimately, a default judgment in the amount of
$21,105,135 was entered against Kang, NIW, and Rex, including

7
attorney fees ($79,500) and costs ($2,135).5 A default judgment
was also entered against Ban in the amount of $2,081,635,
including attorney fees and costs.6
This timely appeal ensued.
DISCUSSION
I. Terminating Sanctions
A. Standard of review and relevant law
“California discovery law authorizes a range of penalties for
conduct amounting to ‘misuse of the discovery process.’
[Citations.] As relevant here, misuses of the discovery process
include . . . ‘[m]aking an evasive response to discovery’ [citations];
and ‘[d]isobeying a court order to provide discovery’ [citations].”
(Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991
(Doppes).) Section 2023.030, subdivision (d), permits the trial
court to impose a terminating sanction for misuse of the
discovery process. (See Doppes, supra, at p. 991.)
As the parties agree, “[t]he trial court has broad discretion
in selecting discovery sanctions, subject to reversal only for
abuse. [Citations.] The trial court should consider both the
conduct being sanctioned and its effect on the party seeking
discovery and, in choosing a sanction, should ‘“attempt[] to tailor
the sanction to the harm caused by the withheld discovery.”’
[Citation.] The trial court cannot impose sanctions for misuse of
the discovery process as a punishment. [Citation.]” (Doppes,
supra, 174 Cal.App.4th at p. 992.)

5
The default judgment included $1,023,500 in general
damages and $20 million in civil penalties.

6
The monetary judgment against Ban was limited to
$2 million in civil penalties as pled in the FAC.

8
 “The discovery statutes evince an incremental approach to
discovery sanctions, starting with monetary sanctions and ending
with the ultimate sanction of termination. . . . If a lesser sanction
fails to curb misuse, a greater sanction is warranted: continuing
misuses of the discovery process warrant incrementally harsher
sanctions until the sanction is reached that will curb the abuse.
‘A decision to order terminating sanctions should not be made
lightly. But 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.’ [Citation.]” (Doppes,
supra, 174 Cal.App.4th at p. 992, fn. omitted.)
B. Trial court did not abuse its discretion in granting
plaintiff’s motion for terminating sanctions
On December 2, 2019, defendants stipulated to a court
order that they serve complete responses to plaintiff’s discovery
by December 31, 2019. They did not comply, forcing plaintiff to
file several motions to compel compliance and for sanctions, all of
which were at least partly successful. After being given
numerous opportunities to comply with trial court orders, Kang
never filed proper responses to plaintiff’s special interrogatories
and NIW never filed proper responses to the request for
production of documents. Pursuant to well-established legal
authority, under these circumstances, the trial court did not err
in imposing terminating sanctions against Kang and NIW.
(Steven M. Garber & Associates v. Eskandarian (2007) 150
Cal.App.4th 813, 820.)

9
 Urging us to reverse, Kang and NIW insist that they had
complied with all outstanding discovery requests.7 But, based
upon its familiarity with the case and the evidence submitted in
support of the discovery motions, the trial court acted well within
its discretion in finding otherwise. Kang and NIW were given
numerous opportunities to respond properly to plaintiff’s
discovery requests; in fact, they were ordered multiple times by
the trial court to serve complete, code-compliant, verified
discovery responses without objection. Yet, there was no
evidence that they ever fully did so.8
Finally, defendants argue that the trial court only imposed
terminating sanctions to punish them. There is no such evidence
in the appellate record; in fact, as set forth above, it appears that
the trial court imposed terminating sanctions as a last resort—
over a year after it first ordered defendants to comply with

7
Specifically, defendants claim that “[f]ull, code compliant
responses were in fact served through email, on October 29,
2020.” But the appellate record shows that claim to be false. In
fact, defense counsel admitted that he could not serve all
discovery responses via e-mail and at least one set of responses
was inadvertently omitted.

8
Likewise, on appeal, defendants direct us to nothing to
support their claim that they fully complied with the trial court’s
discovery orders. “‘[I]t is a fundamental principle of appellate
procedure that a trial court judgment is ordinarily presumed to
be correct and the burden is on an appellant to demonstrate, on
the basis of the record presented to the appellate court, that the
trial court committed an error that justifies reversal.’” (People v.
Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891,
899.)

10
plaintiff’s discovery requests. In any event, without a reporter’s
transcript or an agreed or settled statement of the proceedings at
the relevant hearings, we do not know the basis of the trial
court’s reasoning. (Rhule v. WaveFront Technology, Inc. (2017)
8 Cal.App.5th 1223, 1228–1229.)
II. Damage award
A. Standard of review and relevant law
1. Default judgment damages
As set forth above, section 2023.030 authorizes “a court to
strike an answer as a sanction for misuse of the discovery
process. Once the answer is stricken, the case proceeds as if the
defendant had never responded to the complaint. [Citation.]
Section 580, subdivision (a), limits the amount of damages a
court may award whenever an answer has not been filed, or has
been stricken: ‘The relief granted to the plaintiff, if there is no
answer, cannot exceed that which he or she shall have demanded
in his or her complaint.’” (Electronic Funds Solutions, LLC v.
Murphy (2005) 134 Cal.App.4th 1161, 1173.) Section 580 applies
to default judgments rendered as discovery sanctions. (Electronic
Funds Solutions, LLC v. Murphy, supra, at p. 1175.)
“[A] default judgment rendered in violation of section 580 is
void . . . because it is beyond the court’s jurisdiction to enter such
a judgment.” (Dhawan v. Biring (2015) 241 Cal.App.4th 963,
974.) “The issue of whether a judgment is void on its face is a
question of law, which we review de novo. [Citations.]” (Calvert
v. Al Binali (2018) 29 Cal.App.5th 954, 961.)
2. The ICA
“California’s immigration consultants act . . . (Bus. & Prof.
Code, § 22440 et seq.) regulates nonattorneys who offer advice or
assistance to a particularly vulnerable population, immigrants

11
seeking legal residency in the United States.” (Mendoza v.
Ruesga (2008) 169 Cal.App.4th 270, 274, fn. omitted.)
Business and Professions Code section 22446.5, subdivision
(a), allows a person aggrieved by an immigration consultant to
“bring a civil action for injunctive relief or damages, or both. If
the court finds that the defendant has violated a provision of this
chapter, it shall award actual damages, plus an amount equal to
treble the amount of actual damages or one thousand dollars
($1,000) per violation, whichever is greater.” (Bus. & Prof. Code,
§ 22446.5, subd. (a).)
In addition, the ICA provides for “a civil penalty not to
exceed one hundred thousand dollars ($100,000) for each
violation, to be assessed and collected in a civil action brought by
any person injured by the violation.” (Bus. & Prof. Code, § 22445,
subd. (a)(1); see also Bus. & Prof. Code, § 22445, subd. (a)(2)
[“The court shall impose a civil penalty for each violation of this
chapter”].)
B. Trial court awarded excessive damages against Kang,
NIW, and REX
In her FAC, plaintiff alleges that defendants “violated each
and every provision of” the ICA. The FAC specifies 18 categories
of violations. She prays for “general and special damages,” as
well as “treble damages” under the ICA. She also asks for “a civil
penalty of $100,000 for each individual violation of the ICA,
estimated to exceed $2,000,000.”
These allegations are insufficient to sustain a judgment
against Kang, NIW, and REX in the amount of $21,105,135. “The
purpose of section 580 is to require the plaintiff to provide notice
of the maximum amount of the defendant’s potential liability.”
(Electronic Funds Solutions, LLC v. Murphy, supra,

12
134 Cal.App.4th at p. 1174.) The FAC here, however, seeks
damages “estimated to exceed” $2 million. “Thus, rather than
giving defendants notice of their maximum liability, the [FAC]
purports to provide notice of their minimum liability. Other than
stating that damages will be at least [$2 million], the [FAC]
provides notice no better than pleadings which seek ‘damages
according to proof.’ [Citation.] Indeed, nothing in the [FAC]
would give anyone reason to suspect a default judgment could be
entered specifying” special and general damages in the amount of
$20 million, an amount ten times greater than the amount
expressly requested in the FAC. (Electronic Funds Solutions,
LLC v. Murphy, supra, 134 Cal.App.4th at p. 1174.)
The instant case is distinguishable from People ex rel.
Lockyer v. Brar (2005) 134 Cal.App.4th 659 (Brar). “In Brar, the
Attorney General filed suit against an attorney who repetitively
filed ‘shakedown’ lawsuits against small businesses. Although
the Attorney General’s complaint sought damages ‘in an amount
of not less than $1,000,000,’ [the court of appeal] affirmed a
$1,787,500 default judgment. Because the Attorney General’s
complaint stated it was seeking a statutory penalty of $2,500 per
violation of the unfair competition law [citation], and that
approximately 500 [businesses] had been named . . . in each of at
least three separate lawsuits, the defendant could have
calculated potential damages from the face of the complaint of at
least $3.75 million (i.e., $2,500 times 1,500). In the present
situation, nothing in the [FAC] provided defendants with
information sufficient to calculate” damages in excess of
$21 million. (Electronic Funds Solutions, LLC v. Murphy, supra,
134 Cal.App.4th at p. 1174.)

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 Because the FAC here is wholly ineffective under section
580 to support a default judgment in excess of $2 million, the
damage award must be limited to that amount. (See, e.g., Becker
v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 492.)
In their appellate briefs, the parties focus on whether the
damage award is supported by substantial evidence. This
argument puts the cart before the horse. We only review the
evidence to support the default judgment after we have
determined that the damages are within the scope of what is
requested in the complaint. In other words, even if we assume
without deciding that the declarations offered in support of
plaintiff’s default judgment package are sufficient to support a
$20 million damage award, that award still cannot stand based
upon what is pled in the FAC.
In her respondent’s brief, plaintiff asserts that because she
served Kang, NIW, and REX with a statement of damages, they
were on notice of the damages being sought. In support, she
directs us to the request for entry of default judgment form.
There are at least two flaws with this argument.
First, “[s]tatements of damages are used only in personal
injury and wrongful death cases, in which the plaintiff may not
state the damages sought in the complaint. [Citation.] In all
other cases, when recovering damages in a default judgment, the
plaintiff is limited to the damages specified in the complaint.
[Citations.]” (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th
199, 206, fn. 4.) Thus, at best, plaintiff could serve a statement of
damages regarding her personal injury damages. But plaintiff
offers no legal authority to support her supposition that a
statement of damages can be used to put a defendant on notice of

14
civil penalties. (Benach v. County of Los Angeles (2007) 149
Cal.App.4th 836, 852.)
Second, the statement of damages identified on the request
for entry of default judgment form is insufficient as it did not
provide notice to defendants of the amount of damages sought
before their defaults were entered. (Electronic Funds Solutions,
LLC v. Murphy, supra, 134 Cal.App.4th at p. 1173; see also Sass
v. Cohen (2020) 10 Cal.5th 861, 877 [“The standard forms that
litigants must file for . . . judgment of default . . . must be
completed and filed before default may be taken [and] make clear
that plaintiffs are required to state a specific dollar amount as
the relief demanded”]; Jones v. Interstate Recovery Serv. (1984)
160 Cal.App.3d 925, 929 [“Where a default judgment is entered
without defendant being informed of the potential special
damages, the defendant lacks sufficient knowledge to make the
decision of defending against or ignoring plaintiff’s claims”].)
While we are reversing the judgment of $21 million against
Kang, NIW, and REX, we are not reversing or modifying the
attorney fee and cost award. On appeal, defendants assert that
plaintiff improperly received a double recovery for her costs and
attorney fees. After reviewing the appellate record, they are
mistaken. The entire attorney fee and cost award was entered
against all four defendants jointly and severally; the only reason
the amounts were differentiated was in an effort to award
$21,023,500 against Kang, NIW, and REX and $2 million against
Ban. In any event, in light of our conclusion that the entire
judgment against all four defendants is limited to $2 million, plus
attorney fees ($79,500) and costs ($2,135), there should be no
further confusion.

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 DISPOSITION
The order granting plaintiff’s motion for terminating
sanctions against Kang and NIW is affirmed. The default
judgment entered against Ban is affirmed. The default judgment
entered against Kang, NIW, and REX is reversed and the matter
is remanded to the trial court with directions to modify the
judgment to award plaintiff $2 million in damages, plus attorney
fees and costs, for a total of $2,081,635. Parties to bear their own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________________, J.
ASHMANN-GERST

We concur:

________________________, P. J.
LUI

________________________, J.
HOFFSTADT

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