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This case was last updated from Los Angeles County Superior Courts on 01/19/2021 at 00:54:00 (UTC).

GREEN MUTUAL PROPERTY AND INVESTMENT CO., ET AL VS. WILSHIRE BANK ET AL

Case Summary

On 07/18/2013 GREEN MUTUAL PROPERTY AND INVESTMENT CO filed a Contract - Other Contract lawsuit against WILSHIRE BANK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JAMES C. CHALFANT, HOLLY E. KENDIG, MICHAEL JOHNSON and RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5574

  • Filing Date:

    07/18/2013

  • 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

JAMES C. CHALFANT

HOLLY E. KENDIG

MICHAEL JOHNSON

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiffs, Defendants and Respondents

RO CHAHM

GREEN MUTUAL PROPERTY INVESTMENT

RO CHAHN

GREEN MUTAL EQUITY INC.

RO OCK KUN

Plaintiff and Petitioner

RO CHAHN

Defendants and Respondents

AHN JAMES

DOES 1

GREEN MUTUAL PROPERTY INVESTMENT

KIM DONG II

SAE HAN BANK

STEWART DEFAULT SERVICES

WILSHIRE BANK

DOES 1-20

ROBERT AHN

AHN ROBERT

AHN JAMES HYOJIN

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

TRAINA PAUL ALLAN

RAVIPUDI RAHUL

ZUSSMAN MARC IRWIN

ZUSSMAN MARC I. ESQ.

MOEST ROBERT C. ESQ.

Defendant and Respondent Attorneys

YANG KEVIN W.

BOLSTAD DAVID C. ESQ.

PARK HEESOK ESQ.

KIM JESSIE Y.

BOLSTAD DAVID CHARLES

YANG KEVIN WENSHUO

PARK HEESOK

ECOFF LAWRENCE C.

 

Court Documents

Certificate of Mailing for - Certificate of Mailing for Minute Order (COURT ORDER RE: PEREMPTORY CHALLENGE AGAINST JUDGE HOLLY E. K...) of 12/18/2018

12/18/2018: Certificate of Mailing for - Certificate of Mailing for Minute Order (COURT ORDER RE: PEREMPTORY CHALLENGE AGAINST JUDGE HOLLY E. K...) of 12/18/2018

Case Management Order

4/25/2019: Case Management Order

PLAINTIFF?S COMPLAINT FOR (1) FRAUD; MORTGAGE DECEIPT; WRONGFUL TRUSTEE SALES (NON-JUDICIAL FORECLOSURE); ETC

7/18/2013: PLAINTIFF?S COMPLAINT FOR (1) FRAUD; MORTGAGE DECEIPT; WRONGFUL TRUSTEE SALES (NON-JUDICIAL FORECLOSURE); ETC

ORDER ON COURT FEE?WAIVER (SUPERIOR COURT) - ?

7/19/2013: ORDER ON COURT FEE?WAIVER (SUPERIOR COURT) - ?

NOTICE OF CASE MANAGEMENT CONFERENCE

7/22/2013: NOTICE OF CASE MANAGEMENT CONFERENCE

ORDER ON COURT FEE WAIVER AFTER HEARING (SUPERIOR COURT)

8/20/2013: ORDER ON COURT FEE WAIVER AFTER HEARING (SUPERIOR COURT)

DEFENDANTS STEWART DEFAULT SERVICES, SAEHAN BANK, AND DONG IL KIM?S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS? DEMURRER TO COMPLAINT

8/20/2013: DEFENDANTS STEWART DEFAULT SERVICES, SAEHAN BANK, AND DONG IL KIM?S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS? DEMURRER TO COMPLAINT

Minute Order -

8/28/2013: Minute Order -

REQUEST FOR ENTRY OF DEFAULT

12/26/2013: REQUEST FOR ENTRY OF DEFAULT

NOTICE OF RULING

12/30/2013: NOTICE OF RULING

DEFENDANT JAMES HYOJIN AHN AND ROBERT AHN?S NOTICE OF DEMURRERS AND DEMURRERS TO PLAINTIFFS? SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

9/12/2014: DEFENDANT JAMES HYOJIN AHN AND ROBERT AHN?S NOTICE OF DEMURRERS AND DEMURRERS TO PLAINTIFFS? SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

DEFENDANT WILSHIRE BANK?S REQUEST FOR JUDICIAL NOTICE

2/13/2015: DEFENDANT WILSHIRE BANK?S REQUEST FOR JUDICIAL NOTICE

PLAINTIFFS GREEN MUTUAL PROPERTY & INVESTMENT, INC., OCK KUN RO, AND GREEN MUTUAL EQUITY, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS JAMES HYOJIN AHN AND ROBERT AHN'S DEMU

4/7/2015: PLAINTIFFS GREEN MUTUAL PROPERTY & INVESTMENT, INC., OCK KUN RO, AND GREEN MUTUAL EQUITY, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS JAMES HYOJIN AHN AND ROBERT AHN'S DEMU

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS JAMES HYOJIN AHN'S AND ROBERT AHN'S DEMURRER TO PLAINTIFFS' THIRD-AMENDED COMPLAINT

6/22/2015: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS JAMES HYOJIN AHN'S AND ROBERT AHN'S DEMURRER TO PLAINTIFFS' THIRD-AMENDED COMPLAINT

Minute Order -

3/21/2016: Minute Order -

Minute Order -

4/27/2016: Minute Order -

NOTICE OF APPEAL/CROSS-APPEAL (UNLIMITED CIVIL CASE)(APPELLATE)

6/14/2016: NOTICE OF APPEAL/CROSS-APPEAL (UNLIMITED CIVIL CASE)(APPELLATE)

NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

6/16/2016: NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

137 More Documents Available

 

Docket Entries

  • 09/13/2021
  • Hearing09/13/2021 at 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 09/08/2021
  • Hearing09/08/2021 at 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 12/15/2020
  • DocketSubstitution of Attorney; Filed by James Hyojin Ahn (Defendant)

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  • 12/15/2020
  • DocketSubstitution of Attorney; Filed by Robert Ahn (Defendant)

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  • 11/09/2020
  • Docketat 3:41 PM in Department 47, Randolph M. Hammock, Presiding; Ruling on Submitted Matter

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  • 11/09/2020
  • DocketFinal Ruling - Motion to Recuse Counsel for Defendants; Filed by Clerk

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  • 11/09/2020
  • DocketMinute Order ( (Ruling on Submitted Matter)); Filed by Clerk

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  • 11/09/2020
  • DocketCertificate of Mailing for ((Ruling on Submitted Matter) of 11/09/2020, Final Ruling); Filed by Clerk

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  • 10/14/2020
  • DocketBrief (Plaintiff's supplemental brief to its' Motion to Recuse Defendants' counsel); Filed by Green Mutual Property Investment (Plaintiff)

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  • 10/07/2020
  • DocketOpposition (DEFENDANTS JAMES HYOJIN AHN AND ROBERT AHN?S SUPPLEMENTAL OPPOSITION TO PLAINTIFF GREEN MUTUAL PROPERTY INVESTMENT?S MOTION TO RECUSE DEFENDANTS? COUNSEL; DECLARATIONS OF DAVID BOLSTAD AND ROBERT AHN IN SUPPORT THEREOF); Filed by James Hyojin Ahn (Defendant); Robert Ahn (Defendant)

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281 More Docket Entries
  • 07/22/2013
  • DocketORDER TO SHOW CAUSE HEARING

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  • 07/22/2013
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 07/22/2013
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 07/22/2013
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 07/19/2013
  • DocketORDER ON COURT FEEWAIVER (SUPERIOR COURT) -

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  • 07/19/2013
  • DocketORDER ON COURT FEEWAIVER (SUPERIOR COURT) -

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  • 07/19/2013
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 07/18/2013
  • DocketPLAINTIFFS COMPLAINT FOR (1) FRAUD; MORTGAGE DECEIPT; WRONGFUL TRUSTEE SALES (NON-JUDICIAL FORECLOSURE); ETC

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  • 07/18/2013
  • DocketRequest to Waive Court Fees; Filed by Chahn Ro (Plaintiff)

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  • 07/18/2013
  • DocketComplaint; Filed by Chahn Ro (Plaintiff)

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Tentative Rulings

Case Number: BC515574    Hearing Date: April 7, 2021    Dept: 47

Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: April 7, 2021 TRIAL DATE:  September 13, 2021
CASE:  Green Mutual Property & Investment Co., et al. v. Wilshire Bank, et al. 
CASE NO.:  BC515574
 
MOTION FOR LEAVE TO FILE CROSS-COMPLAINT
 
MOVING PARTY: Defendant Bank of Hope
RESPONDING PARTY(S): “Plaintiffs”
CASE HISTORY:
07/18/13: Complaint filed.
12/26/13: First Amended Complaint filed.
07/30/14: Second Amended Complaint filed.
05/19/15: Third Amended Complaint filed.
06/06/16: Judgment of dismissal entered in favor of Defendants Wilshire Bank, James Hyojin Ahn, and Robert Ahn and against all Plaintiffs.
12/03/18: Judgment of dismissal reversed as to Plaintiff Green Mutual Property & Investment Co.’s claims against Defendants Wilshire Bank, James Hyojin Ahn, and Robert Ahn
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiffs allege that Defendants fraudulently enticed them into buying a bad note.
Defendant Bank of Hope moves for leave to file a cross-complaint.
TENTATIVE RULING:
Defendant Bank of Hope’s motion for leave to file a cross-complaint is GRANTED. A standalone copy of the cross-complaint is to be filed within 2 days and served within 10 days of the date of this order.
//
//
DISCUSSION:
Motion for Leave to File Cross-Complaint
Defendant Bank of Hope seeks to file a cross-complaint to assert causes of action for indemnity and declaratory relief against Green Mutual Equity and Chahn Ro. (Declaration of S. Young Lim ¶ 9 & Exh. 1 [proposed cross-complaint].)
CCP § 428.50 provides:
(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.
(b) Any other cross-complaint may be filed at any time before the court has set a date for trial.
(c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.
(Bold emphasis added.)
As to compulsory cross-complaints – which would include a cross-complaint for indemnity based on the same transaction alleged in the complaint  – CCP § 426.50 provides:
A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.
(Bold emphasis and underlining added.)  
The Court previously found that the interests of judicial economy and the interest of justice would be served by having these claims resolved together with Plaintiff’s claims. However, the Court previously continued the hearing on this motion to give Defendant an opportunity to demonstrate its good faith in waiting to allege its claims against Green Mutual Equity and Chahn Ro until nearly two years after it filed its answer. 
The moving party’s bad faith is the only basis on which the Court may deny leave to file a compulsory cross-complaint. (CCP § 426.50; Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99 [“A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result.”].) “Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” (Ibid.) Rather, bad faith is “defined as ‘[t]he opposite of “good faith,” generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake . . . , but by some interested or sinister motive[,] . . . not simply bad judgment or negligence, but rather . . . the conscious doing of a wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will.’” (Id. at 100.)
Here, there has been no demonstration of bad faith on Defendant’s part. In a supplemental declaration, Attorney S. Young Lim indicates that he “did not review the terms of the Loan Agreement in great detail” when Defendant answered the complaint in 2019, because “GME and Chahn Ro had already been dismissed from this lawsuit.” (Declaration of S. Young Lim ¶ 4.) Rather, he indicates that he reviewed the Loan Assignment “[i]n or around February 2021,” while preparing a deposition subpoena for Chahn Ro, and learned of the indemnity provision. (Id. ¶ 5.) 
Plaintiff argues that Defendant’s counsel must have known about the indemnity clause earlier than February 2021 and that the knowledge of Defendant’s prior counsel must be imputed to its current counsel. Yet a compulsory cross-complaint is to be filed “at the same time as the answer to the complaint,” as Plaintiff notes. (CCP § 428.10(a).) Given that Bank of Hope did not file its answer until 2019, the relevant time period to address is the two years following the filing of its answer. Plaintiff has not demonstrated that Defendant’s counsel acted in bad faith in failing to do so. At most, the facts indicate potential neglect, as opposed to a dishonest intent. Nor has Plaintiff explained why it failed to file an opposition to the original motion, opposing it only after the Court ordered supplemental briefing. 
To the extent that Plaintiff argues that this would be a permissive cross-complaint as opposed to a compulsory cross-complaint, the bad-faith inquiry is irrelevant to the determination of a motion for leave to file a permissive cross-complaint. Rather, the relevant inquiry is whether the “interest of justice” warrants allowing the cross-complaint, and the Court had already found that it does under these circumstances.
Nor have Plaintiffs shown that they would suffer any prejudice if this motion were granted. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1118.) Plaintiffs make only a conclusory assertion that they would be “severely prejudiced” if the motion were granted (Declaration of John W. Shaller ¶ 6), without any actual showing of prejudice. This is insufficient given that the applicable statute is to be “liberally construed to avoid forfeiture of causes of action.” (CCP § 426.50.)
Accordingly, Defendant’s motion is GRANTED. A standalone copy of the cross-complaint is to be filed within 2 days and served within 10 days of the date of this order.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated:   April 7, 2021 ___________________________________
Theresa M. Traber
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.

Case Number: BC515574    Hearing Date: March 18, 2021    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 18, 2021 TRIAL DATE: September 13, 2021

CASE: Green Mutual Property & Investment Co., et al. v. Wilshire Bank, et al.

 

CASE NO.: BC515574

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

MOVING PARTY: Defendant Bank of Hope

RESPONDING PARTY(S): No opposition on eCourt as of March 16, 2021

CASE HISTORY:

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that Defendants fraudulently enticed them into buying a bad note.

Defendant Bank of Hope moves for leave to file a cross-complaint.

TENTATIVE RULING:

Unless Defendant can demonstrate its good faith at or before the hearing, Defendant Bank of Hope’s motion for leave to file a cross-complaint will be DENIED WITHOUT PREJUDICE.

If Defendant demonstrates its good faith at or before the hearing, the motion will be GRANTED. If so, a standalone copy of the cross-complaint is to be filed within 2 days and served within 10 days of the date of this order.

DISCUSSION:

Motion for Leave to File Cross-Complaint

Defendant Bank of Hope seeks to file a cross-complaint to assert causes of action for indemnity and declaratory relief against Green Mutual Equity and Chahn Ro. (Declaration of S. Young Lim ¶ 9 & Exh. 1 [proposed cross-complaint].)

CCP § 428.50 provides:

(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.

(b) Any other cross-complaint may be filed at any time before the court has set a date for trial.

(c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.

(Bold emphasis added.)

Although the proposed cross-defendants are no longer parties to the action, Defendant acknowledges that the proposed cross-complaint for indemnity “arises out of the same transaction as the Third Amended Complaint filed in this action.” (Motion, at p. 5.) Under CCP § 426.30, a party against whom a complaint has been filed and served who “fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff” waives the right to assert that cause of action, unless the party meets the requirements of CCP § 426.50 that are discussed herein. A “related cause of action” is one that “arises out of the same transaction . . . as the cause of action which the plaintiff alleges in his complaint.” (CCP § 426.10(c).) The proposed cause of action for indemnity here arises out of the same transaction alleged in the complaint, and Defendant, as the successor to Saehan Bank, had the right to assert indemnity based on the Loan Assignment Agreement when it filed and served its answer in 2019. Thus, Defendant must comply with the statutory requirements applicable to a compulsory cross-complaint.

As to compulsory cross-complaints, CCP § 426.50 provides:

A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.

(Bold emphasis and underlining added.)

Here, Plaintiff has not opposed this motion and, therefore, has not shown that he would suffer any prejudice thereby. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1118.) The Court also finds that the interests of judicial economy and the interest of justice would be served by having these claims resolved together with Plaintiff’s claims. However, Defendant has provided the Court with no basis on which to determine whether Defendant acted in good faith in waiting to allege its claims against Green Mutual Equity and Chahn Ro until nearly two years after it filed its answer. (Lim Decl. ¶ 8.) It may be that Defendant has an explanation for waiting to file this motion until then, but it has not provided one.

Accordingly, unless Defendant can demonstrate its good faith at or before the hearing, Defendant’s motion for leave to file a cross-complaint will be DENIED WITHOUT PREJUDICE.

If Defendant demonstrates its good faith at or before the hearing, the motion will be GRANTED. If so, a stand-alone copy of the cross-complaint is to be filed within 2 days and served within 10 days of the date of this order.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: March 18, 2021 ___________________________________

Theresa M. Traber

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.

Case Number: BC515574    Hearing Date: September 30, 2020    Dept: 47

Green Mutual Property & Investment Co., et al. v. Wilshire Bank, et al.

 

 GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

MOTION TO RECUSE COUNSEL FOR DEFENDANTS JAMES HYOJIN AHN AND ROBERT AHN

MOVING PARTY: Plaintiff Green Mutual Property & Investment Co.

RESPONDING PARTY(S): Defendants James Hyojin Ahn and Robert Ahn

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that Defendants fraudulently enticed them into buying a bad note. The only remaining Plaintiff is Green Mutual Property & Investment Co.

Plaintiff moves to recuse counsel for Defendants James Hyojin Ahn and Robert Ahn.

TENTATIVE RULING:

Plaintiff Green Mutual Property & Investment Co.’s motion to recuse Defendants James Hyojin Ahn and Robert Ahn’s counsel is GRANTED. Said defendants will now each represent themselves, individually, at this time until and unless a formal substitution of attorney is filed, which replaces each of them with a new attorney of record, collectively or otherwise.

DISCUSSION:

Motion to Recuse Counsel

Motion to “Rescue”?

At the outset, the Court commends Plaintiff for filing a truly novel motion, described in its notice as a “Motion to Rescue” Defendants’ counsel. (Notice, at p. 2, bold emphasis added.) It may be that Defendants’ counsel would like to be rescued from this case, but alas, Plaintiff has not pointed to any basis in the Code or the court rules for this Court to grant or deny a motion to rescue. Defendants’ counsel could also use a motion to be relieved as counsel to rescue himself. Of course, in the caption of this motion, this Court is identified as “Hon. Raldolph M. Hammock” and Plaintiff refers to itself as “GREEN MUTUAL PRORPERTY & INVESTMENT,” and therefore the Court will consider this motion as one to recuse, or disqualify, defense counsel. But for future reference, a little proofreading never hurt anyone.

Defendants’ Request for Judicial Notice

Defendants seek judicial notice of 21 documents. The request is GRANTED as to Exhibits 1 to 20 per Evidence Code § 452(d) (court records).

The request is DENIED as to Exhibit 21, which is an Orange County Bar Association formal ethics opinion. This is not a court record as Defendants contend, and Defendants have not suggested any other basis on which this opinion would be subject to judicial notice. (Cf. Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325 [“Because the State Bar is an administrative arm of the court only in its admissions and disciplinary functions [citation], the record of [other actions taken by the State Bar are] not subject to judicial notice as a record of the acts of the judicial department under subdivision (c) of Evidence Code section 452. Although the State Bar has been described as a public corporation and akin to a state public body or agency [citation], subdivision (c) does not clearly make its actions matters subject to judicial notice as acts of either the legislative or executive department.”].)

Analysis

Plaintiff moves to disqualify defense counsel David Bolstad and his firm, Safarian Choi & Bolstad LLP, on the ground that Bolstad has a conflict of interest that requires his disqualification.

When deciding a motion to disqualify counsel, “[t]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.”

(O'Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1124, citation omitted.)

Plaintiff argues that Bolstad must be disqualified because he represented Plaintiff in a related case that was dismissed in 2014.

It is well established that an attorney, after severing his or her relationship with a client, “may not do anything which will injuriously affect his former client in any matter in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.” (Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 573–574 [15 P.2d 505]; accord, People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, 155 [172 Cal. Rptr. 478, 624 P.2d 1206]; Fiduciary Trust Internat. of California v. Superior Court (2013) 218 Cal.App.4th 465, 485 [160 Cal. Rptr. 3d 216].) This prohibition is grounded in both the California State Bar Rules of Professional Conduct, former rule 3-310(E) in effect until November 1, 2018, and rule 1.9, effective November 1, 2018, and governing case law. (See City National Bank v. Adams (2002) 96 Cal.App.4th 315, 323–324 [117 Cal. Rptr. 2d 125].)

The disqualification standards applicable in these cases of successive representation “focus on the former client’s interest ‘in ensuring the permanent confidentiality of matters disclosed to the attorney in the course of the prior representation.’” (Charlisse C., supra, 45 Cal.4th at pp. 159–160; see Neal v. Health Net, Inc. (2002) 100 Cal.App.4th 831, 840 [123 Cal. Rptr. 2d 202] [“at the core of California's disqualification jurisprudence is a concern for the confidentiality of lawyer-client communications”].) Disqualification is required if the current representation involves the legal services performed by the attorney for the former client (e.g., Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 111 [14 Cal. Rptr. 2d 184]; Dill v. Superior Court (1984) 158 Cal.App.3d 301, 306 [205 Cal. Rptr. 671]) or, even if not the same matter, if a substantial relationship exists between the former representation and the current representation (SpeeDee Oil, supra, 20 Cal.4th at p. 1146 [“[w]here an attorney successively represents clients with adverse interests, and where the subjects of the two representations are substantially related, the need to protect the first client's confidential information requires that the attorney be disqualified from the second representation”]; Flatt v. Superior Court (1994) 9 Cal.4th 275, 283 [36 Cal. Rptr. 2d 537, 885 P.2d 950] [“[w]here the requisite substantial relationship between the subjects of the prior and the current representations can be demonstrated, access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed and disqualification of the attorney's representation of the second client is mandatory”]; M’Guinness v. Johnson (2015) 243 Cal.App.4th 602, 614 [196 Cal. Rptr. 3d 662]).

Through the doctrine of vicarious disqualification, the Supreme Court has extended the rules developed to protect a former client’s confidences to include the disqualified attorney’s entire law firm: “‘The rule of vicarious disqualification is based upon the doctrine of imputed knowledge,’ which posits that the knowledge of one attorney in a law firm is the knowledge of all attorneys in the firm. [Citation.] By ‘recogniz[ing] the everyday reality that attorneys, working together and practicing law in a professional association, share each other's, and their clients’, confidential information’ [citation], the vicarious disqualification rule ‘safeguards clients’ legitimate expectations that their attorneys will protect client confidences.’” (Charlisse C., supra, 45 Cal.4th at p. 161; accord, SpeeDee Oil, supra, 20 Cal.4th at pp. 1153–1154; see Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, 800–801 [108 Cal. Rptr. 3d 620] [although the presumption that knowledge of a client’s confidences should be imputed to all members of a tainted attorney’s law firm might be refuted by evidence that ethical screening will effectively prevent the sharing of confidences in a particular case, “vicarious disqualification should be automatic in cases of a tainted attorney possessing actual confidential information from a representation, who switches sides in the same case”]; see also Castaneda v. Superior Court, supra, 237 Cal.App.4th at p. 1449 [“no ethical wall could overcome the imputation of shared knowledge when an attorney who formerly represented—and therefore possessed confidential information regarding—a party switched sides in the same case”].)

(O'Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1124-1126, bold emphasis and underlining added.)

Defendants concede that their counsel represented Plaintiff in the related case, but they argue that they did not receive any confidential information in that case that is “substantially related” to this case. Defendants’ counsel declares that “[a]ll communications relating to GMPI were made indirectly through the Ahns.” (Declaration of David C. Bolstad ¶ 8.) They were retained by Plaintiff on February 14, 2013 to seek to intervene on its behalf and file a motion to expunge a lis pendens that had been recorded against its property, and “[a]ll information contained in the Ock Kun Ro Declaration filed in February 2013 in connection with the efforts to expunge a lis pendens, was provided to SCB by the Ahns.” (Id. ¶¶ 5, 8.)

Whether Defendants actually received confidential information is not the test, however, unless Defendants have shown that the two cases are not “substantially related,” in which case the Court would consider whether they actually received confidential information. Here, however, Defendants have not shown that the two cases are not “substantially related.” Indeed, the cases were deemed related because they “involve the same chain of events, the parties, witnesses and the same Trimax note.” (Reply, at p. 7.) Under those circumstances, “it is conclusively presumed” that the attorney “knows confidential information adverse to his or her former client.” (National Grange of Order of Patrons of Husbandry v. California Guild (2019) 38 Cal.App.5th 706, 716.)

Defendants also argue that this is a “thrust-upon” conflict – unliterally created by Plaintiff by “fundamentally changing its allegations and changing from a defendant to a plaintiff in the same action.” (Oppo., at p. 9.) Defendants rely on an Orange County Bar Association formal opinion (as to which the Court has denied Defendants’ request for judicial notice) for the uncontroversial proposition (arising from a case cited in that opinion) that an attorney who represents both a company acquiring another company and the acquired company may continue to represent one of them if that representation is not “substantially related” to the representation of the other client. That is not analogous if the two matters at issue are “substantially related,” as analyzed above.

What Defendants appear to be arguing is that Plaintiff “manufactured” the conflict, and there is case law that does directly address that issue. In general, courts deny disqualification motions where the conflict has been “manufactured.” (Packer v. Superior Court (2014) 60 Cal.4th 695, 704-705 [noting that the opposition “claimed that the defense manufactured an apparent conflict by listing [the prosecutor’s] children as possible witnesses”].) For example, manufacturing a conflict by threatening to file suit against the opposing party’s counsel will not lead to disqualification. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 302.) Likewise, a party cannot manufacture a conflict by filing a cross-complaint and arguing that a conflict exists based on claims asserted in the cross-complaint – at least if the “cross-complaint has no chance of succeeding on the merits.” (Federal Home Loan Mortg. Corp. v. La Conchita Ranch Co. (1998) 68 Cal.App.4th 856, 862-863.) In other words, the “simple expediency of filing a cross-complaint” cannot be the sole basis on which to disqualify counsel, because “[a]ny other rule would give a party the power to reject its opponent’s choice of counsel.” (Id. at 862.)

Here, however, there is no evidence that the conflict was “manufactured.” Defendants feign shock that GMPI “magically transformed itself from a Defendant to a Plaintiff.” (Oppo., at p. 3.) Defendants have not shown, however, that these allegations have “no chance of succeeding on the merits.” (Ibid.) Indeed, although Plaintiff only obliquely references the appellate decision in this case, the remittitur contained in the court file does indicate that the Court of Appeal held that the “allegation in the third amended complaint that GM Equity purchased the Trimax Note as an agent for [GMPI] does not appear to be an attempt to circumvent a prior admission with an untruthful pleading, but rather an attempt to add clarity to ambiguous facts.” (Remittitur of Appellate Opinion, 12/3/2018, at pp. 13-14.) Thus, Defendants have not shown that GMPI was named as a Plaintiff in this action solely to manufacture a conflict requiring their counsel’s disqualification.

Finally, Defendants argue that Plaintiff waived any right to object to their representation by Plaintiff’s former counsel because Plaintiff was aware of the conflict for over six years. Plaintiff’s counsel denies that he was aware of the conflict over six years ago, declaring that he first became aware of it in December 2019. (Declaration of Marc I. Zussman ¶ 5.) It is undisputed, however, that Attorney Zussman substituted into the related case on April 24, 2014 and that GMPI had “intervened a year earlier and was represented by Mr. David Bolstad.” (Id. ¶¶ 2, 3.) If defense counsel is “conclusively presumed” to have received certain information by virtue of representing Plaintiff, it seems only fair to presume that counsel for Green Mutual Equity and Chahn Ro would be aware of the other parties in that litigation and who represented who. Indeed, all of Mr. Zussman’s proofs of service in the relevant period show that Mr. Bolstad was served, and presumably Mr. Zussman would be aware of all parties represented by Mr. Bolstad.

Given the equitable nature of a disqualification motion and the amount of time involved here, this is a tough call. Certainly, last-minute disqualification motions that amount to “trial tactics” or as a “tactical device to delay the litigation” may be denied on the ground of laches. (Liberty Nat'l Enterprises, L.P. v. Chicago Title Ins. Co. (2011) 194 Cal.App.4th 839, 847.) At the same time, Defendants have not attempted to show any prejudice arising from the delay, making only a conclusory assertion that disqualification “would severely prejudice the Ahns.” (Oppo., at p. 11.) When the opposing party fails to show extreme prejudice resulting from the delay, laches is generally inapplicable. (Fiduciary Trust Int'l of Calif. v. Superior Court (2013) 218 Cal.App.4th 465, 490.) Moreover, delay alone is not a sufficient reason to deny a motion for disqualification; even a motion made on the eve of trial will be denied if there has been no showing of undue prejudice. (In re Complex Asbestos Litig. (1991) 232 Cal.App.3d 572, 600.)

In light of the Court’s paramount concern – “to preserve public trust in the scrupulous administration of justice and the integrity of the bar” – Defendants’ choice of counsel in this case must yield to “ethical considerations that affect the fundamental principles of our judicial process.” (SpeeDee Oil, supra, 20 Cal.4th at 1145.) Moreover, in balancing the competing interests here, including Defendants’ right to counsel of their choice and its burden in connection with changing counsel, the Court notes that the trial date is approximately a year from now and there are no other motions set for hearing before the Final Status Conference in September 2021 at this time. As individuals, Defendants may also represent themselves until they are able to secure new counsel. As such, Defendants will not suffer any undue prejudice.

Accordingly, the motion to recuse Defendants’ counsel is GRANTED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: September 30, 2020 ___________________________________

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.

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