Byong W Yoo vs. Jean Chong

Motion to Compel Deposition Oral or Written

Cal. Super. - 4th Dist.August 14, 2017

A T K I N S O N , A N D E L S O N , L o y A , R u u b & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 £ 3 NI bo & 5 ro b o £ 5 K a — i . ,_ CE RR IT OS , CA LI FO RN IA 9 0 7 0 3 - 9 3 6 4 — i ~ a 19 ) EE S Ww NS ) pd oO \O 0 ~ aN wn EA N Ww No —_ oo bo 0 ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Law Corporation Edward C. Ho State Bar No. 176144 EHo@aalrr.com Shawn M. Ogle State Bar No. 266259 SOgle@aalrr.com 12800 Center Court Drive South, Suite 300 Cerritos, California 90703-9364 Telephone: (562) 653-3200 Fax: (562) 653-3333 Attorneys for Defendants and Cross-Complainants JEAN CHONG and KOREY CHONG, ELECTRONICALLY FILED Superior Court of California, County of Orange 0216/2018 at 04:12:00 Fi Clerk of the Superior Court By Wary Johnson, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER BYONG W. YOO and HWA YOO, Case No. 30-2017-00937524-CU-CO-CJC Plaintiffs, Assigned to Hon. Walter Schwarm Ye. JEAN CHONG and KOREY CHONG, and DOES 1 through 25, inclusive, Department C-19 NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS- COMPLAINANTS TO COMPEL COMPLIANCE OF DELIANA PARK WITH Defendants. DEPOSITION SUBPOENA; JEAN CHONG and KOREY CHONG, Cross-Complainants, Vv. PREMIER FOOD SAFETY CORPORATION, BYONG W. YOO, HWA YOO, DIRK YOO, DONALD YOO and ROES 1 through 20, inclusive, Cross-Defendants. Hearing Date: Time: Dept: Reservation ID: 72756399 MEMORANDUM OF POINTS AND AUTHORITIES April 10,2018 1:30 p.m. C19 Complaint Filed: August 14, 2017 Trial Date: March 28, 2018 NOTICE OF MOTION AND MOTION TO COMPEL COMPLIANCE OF DELIANA PARK WITH DEPOSITION SUBPOENA; MEMORANDUM OF POINTS AND AUTHORITIES A T K I N S O N , A N D E L S O N , L o Y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S A T L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 ed KS E d ha t i . ba E S Ka — ,_ L CE RR IT OS , CA LI FO RN IA 8 0 7 0 3 - 9 3 6 4 i. ~ AN Wn Ee 2 No —_ o © oo 2 AN Wn SN Ww No ] — No oo TO ALL PARTIES AND THEIR COUNSEL OF RECORD PLEASE TAKE NOTICE THAT on April 10, 2018 at 1:30 p.m., or as soon thereafter as the motion may be heard, in Department C-19 of the above-entitled court located at 700 Civil Center Drive West, Santa Ana California, 92701, defendants and cross-complainants Jean Chong and Korey Chong will and hereby do move the Court pursuant to Code of Civil Procedure sections 1987.1 and 2025.480 for an order compelling Deliana Park to comply with the deposition subpoena defendants and cross-complainants caused to be issued to and served on her and appear for deposition as soon as practicable and before the trial in this matter. This motion is made on the grounds that Ms. Park has unjustifiably refused to comply with the deposition subpoena. This motion is based on the attached Memorandum of Points and Authorities, the concurrently filed Separate Statement, the concurrently filed Declarations of Jean Chong and Edward Ho, and all other pleadings, papers, records and documentary materials on file or deemed to be on file in this action, and the oral arguments of the parties made at the hearing on this motion. Dated: February 16, 2018 ATKINSQO ON, LOYA, RUUD & ROMO v By: E¥ward C. H Attorneys for Defendants JEAN CHONG and KOREY CHONG 2. NOTICE OF MOTION AND MOTION TO COMPEL COMPLIANCE OF DELIANA PARK WITH DEPOSITION SUBPOENA; MEMORANDUM OF POINTS AND AUTHORITIES A T K I N S O N , A N D E L S O N , L o Y A , R u u p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S A T L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 A ~N O Y W n B O N N N N N N N r m ee e T ma ee e d ed pe d pe d oo NN NN nn A W N O O N Y W N I. INTRODUCTION This motion by Jean and Korey Chong (“Chongs™) to compel compliance with the deposition subpoena issued to Deliana Park (“Park”) boils down to whether the Chongs should be entitled to take discovery from a percipient witness on material factual contentions made by Byong and Hwa Yoo (“Y00s”), who in their action against the Chongs seek to obtain millions in damages. The Court should grant the motion. A core dispute in the case is whether the Yoos in 2009 voluntarily transferred to their children 55% of the shares in Premier Food Safety Corporation (“Premier”), so that the Yoos’ ownership stake went from 85% to 30%. The Yoos allege they did not make any voluntarily transfer but rather only agreed to a profit sharing arrangement with their children. The Yoos argue that any share transfer was a result of a fraudulent scheme perpetuated by the Chongs and Dirk Yoo, who allegedly schemed with Premier’s accountant to manipulate tax documents to & reflect share transfers. Important to the Yoos theory is their contention that they are “vulnerable elders,” who do not adequately understand English, and have diminished physical and mental capacity, and thus were exploited and allegedly did not understand what occurred until June 2017. While the Chongs believe that the Yoos’ contentions are debunked by the existing record, the Chongs are nevertheless entitled to take discovery on those factual contentions. And Park is a percipient witness to those and other assertions. Premier is a small family owned and operated company, and Park is a member of the family. She is the wife of Dirk Yoo who is Premier’s CEO and the Yoos’ son. Park has been around the Yoos, observed them, and is thus in a position to testify to facts concerning their vulnerability, their physical or mental acuity, and their ability to understand English, among other things. Byong Yoo has also claimed to have suffered emotional distress, about which Park may be in a position to provide evidence. Elsewhere, the Yoos have directly made “family functions” relevant to this case. Park has also attended Premier business meetings. The liberal policy favoring discovery generally applies with equal force to discovery sought from third-parties. The Chongs do not seek to harass Park. Rather, she is one of the few non-party witnesses in this case who can testify to factual contentions made by the Yoos, and the Chongs seek to take her deposition to test those contentions. She should be ordered to attend deposition. _3- NOTICE OF MOTION AND MOTION TO COMPEL COMPLIANCE OF DELIANA PARK WITH DEPOSITION SUBPOENA; MEMORANDUM OF POINTS AND AUTHORITIES A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S A T L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 C E R R I T O S , C A L I F O R N I A 8 0 7 0 3 - 9 3 6 4 N o b o N o N o N o N o N o No — — — — — — — — — ~I AN Ln + wa BD — © Oo o o ~J AN Ww nN w ho —_ No 0 II. STATEMENT OF FACTS Premier is a family company in which all the shareholders are and have always been family members, all executives are and have always been family members, and six of the seven directors are family members. (See, e.g., Ex. 11 to Ho Decl. at 42; J. Chong Decl. 2-6.) Premier was formed by the Yoos in 2003. (First Amended Complaint [“FAC™], 47.) The initial shareholders were the Yoos, the parents of Dirk Yoo, Jean Chong, and Donald Yoo. (J. Chong Decl. 43.) Korey Chong is married to Jean. Dirk, Jean, Donald, and Korey have all worked for Premier at various times. (Id.) Between 2005 and 2009, the Yoos made multiple transfers of their shares to their children and to Korey. As a result, in 2009, the ownership of Premier was: (i) Byong 30%; (ii) Jean 37.5%; (iil) Korey 2.5%; (iv) Dirk 25%; and (v) Donald 5%. (Jd. 3-4.) After additional share transfers within the family, the ownership of Premier at the beginning of 2013 was: (i) Byong 14%; (ii) Hwa 14%; (iii) Jean 36.5%; (iv) Korey 1.5%; (v) Dirk 24%; and (vi) Donald 10%. (/d. 14, 6.) A central theory of the Yoos is that they did not agree to transfer shares in 2009. Rather, they allege that in 2009 Jean and Dirk approached Byong about increasing their shares of Premier profits, to which Byong agreed “on the condition that Dirk and Jean continued to work” for Premier. (FAC 13.) The FAC does not explain what form the alleged “profit sharing arrangement” was to take, but it does allege that the Yoos never voluntarily agreed to any share transfers. (Id. j11, 12, 13.) It alleges that Dirk and the Chongs colluded with Premier’s accountant to improperly transfer the shares. (Id. 14.) The Yoos assert that Dirk and the Chongs exploited Byong’s supposed physical and mental fragility in effectuating the share transfers It alleges that because of Byong’s “age and fragile health condition and limited ability to communicate in English” he “was at relevant times [] a dependent and vulnerable elder.” (/d. §8.) This allegation is incorporated into each cause action asserted by the Yoos. (Id. 1119, 28, 30, 37, 42, 51.) Elsewhere the Yoos maintain the Chongs “exercise{ed] undue pressure and influence over” the Yoos. (Id. §38.) In discovery, the Yoos contend that Byong has been mentally and cognitively impaired since 2006, and that as a result he has become increasingly reliant on his family members, including in the management of Premier. (Ex. 2 to Ho Decl. at 2:20-3:8; 5:20-6:8.) They further contend Byong has been physically impaired since 2006 also necessitating him to rely on his family. (/d. at 8:19-9:5 ¢f. Ex. -4- NOTICE OF MOTION AND MOTION TO COMPEL COMPLIANCE OF DELIANA PARK WITH DEPOSITION SUBPOENA; MEMORANDUM OF POINTS AND AUTHORITIES A T K I N S O N , A N D E L S O N , L o y A , R u u p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S A T L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 CE RR IT OS , CA LI FO RN IA 90 70 3- 93 64 [\ ®] N o N o N o b o [\ ) r o b o — — —_ —_ — — — — — — ~ [@ )} Wn EN WI No — Lo m) \ O o o ~ oN wn + Ww [3 ] — Annette P. Siulagi y - 12 = PROOF OF SERVICE