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This case was last updated from Los Angeles County Superior Courts on 12/29/2020 at 19:43:35 (UTC).

DAISY SANDOVAL VS LAW OFFICES OF MOON KIM ET AL

Case Summary

On 04/26/2011 DAISY SANDOVAL filed a Labor - Wrongful Termination lawsuit against LAW OFFICES OF MOON KIM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are KEVIN C. BRAZILE, SAMANTHA JESSNER, JAMES E. BLANCARTE, DAVID J. COWAN and EDWARD B. MORETON. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0381

  • Filing Date:

    04/26/2011

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

KEVIN C. BRAZILE

SAMANTHA JESSNER

JAMES E. BLANCARTE

DAVID J. COWAN

EDWARD B. MORETON

 

Party Details

Plaintiff

SANDOVAL DAISY

Appellants and Not Classified By Court

MOON KI KIM AN INDIVIDUAL

SALYER DAVID A.

LEE LINDA

KLEIN A. JOEL ESQ.

JANNEY & JANNEY

Defendants

DOES 1 THROUGH 20

LAW OFFICES OF MOON KIM PROFESSIONAL

Respondent and Assignee

LARSON ANDREW DBA HCR BEVERLY HILLS

Attorney/Law Firm Details

Plaintiff Attorneys

BERKE MICHAEL N

PETERS JAMES J.

Defendant Attorneys

HENRY M. LEE LAW CORPORATION

SHPALL WILLIAM ESQ.

Not Classified By Court Attorney

YANG LISA J

 

Court Documents

Motion for Order - MOTION FOR ORDER RECALLING OR QUASHNG WRIT OF EXECUTION; VACATING ORDER; RELEASING PROPERTY; AWARDING FEES AND COSTS

7/29/2019: Motion for Order - MOTION FOR ORDER RECALLING OR QUASHNG WRIT OF EXECUTION; VACATING ORDER; RELEASING PROPERTY; AWARDING FEES AND COSTS

Minute Order - MINUTE ORDER (COURT ORDER RE REASSIGNMENT PURSUANT TO RECUSAL)

8/1/2019: Minute Order - MINUTE ORDER (COURT ORDER RE REASSIGNMENT PURSUANT TO RECUSAL)

Declaration - DECLARATION DECLARATION OF GEORGE BUSU

8/2/2019: Declaration - DECLARATION DECLARATION OF GEORGE BUSU

Motion to Amend Judgment - MOTION TO AMEND JUDGMENT TO INCLUDE ALTER EGO INDIVIDUAL

10/29/2019: Motion to Amend Judgment - MOTION TO AMEND JUDGMENT TO INCLUDE ALTER EGO INDIVIDUAL

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW RE PRELIMINARY INJUCTION

10/31/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW RE PRELIMINARY INJUCTION

Appeal - Notice Court Reporter to Prepare Appeal Transcript - APPEAL - NOTICE COURT REPORTER TO PREPARE APPEAL TRANSCRIPT ;B301051, NOA 9/11/19;

11/12/2019: Appeal - Notice Court Reporter to Prepare Appeal Transcript - APPEAL - NOTICE COURT REPORTER TO PREPARE APPEAL TRANSCRIPT ;B301051, NOA 9/11/19;

Opposition - OPPOSITION NON-PARTY MOON KI KIM'S OPPOSITION TO MOTION TO AMEND JUDGMENT TO INCLUDE ALTER EGO INDIVIDUAL

2/6/2020: Opposition - OPPOSITION NON-PARTY MOON KI KIM'S OPPOSITION TO MOTION TO AMEND JUDGMENT TO INCLUDE ALTER EGO INDIVIDUAL

Reply - REPLY TO MOTION TO AMEND JUDGMENT TO INCLUDE ALTER EGO

2/11/2020: Reply - REPLY TO MOTION TO AMEND JUDGMENT TO INCLUDE ALTER EGO

Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH DEPOSITION SUBPOENAS FOR BUSINESS ...)

7/13/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH DEPOSITION SUBPOENAS FOR BUSINESS ...)

Separate Statement

8/12/2020: Separate Statement

AMENDED ANSWER OF DEFENDANT, LAW OFFICES OF MOON KIM, PROFESSIONAL CORPORATION, TO PLAINTIFF S UNVERIFIED COMPLAINT

6/16/2011: AMENDED ANSWER OF DEFENDANT, LAW OFFICES OF MOON KIM, PROFESSIONAL CORPORATION, TO PLAINTIFF S UNVERIFIED COMPLAINT

CASE MANAGEMENT STATEMENT -

6/28/2011: CASE MANAGEMENT STATEMENT -

Proof of Service -

10/20/2011: Proof of Service -

ORDER GRANTING EX PARTE APPLICATION TO CONTINUE MOTION FOR PROTECTIVE ORDER SETTING DEPOSITION PRIORITY, DECLARATION OF R. WILLIAM SR PALL

11/2/2011: ORDER GRANTING EX PARTE APPLICATION TO CONTINUE MOTION FOR PROTECTIVE ORDER SETTING DEPOSITION PRIORITY, DECLARATION OF R. WILLIAM SR PALL

PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

12/6/2011: PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

SUBSTITUTION OF ATTORNEY -

2/19/2013: SUBSTITUTION OF ATTORNEY -

NOTICE OF SETTLEMENT OF ENTIRE CASE

5/15/2013: NOTICE OF SETTLEMENT OF ENTIRE CASE

Minute Order -

8/15/2013: Minute Order -

155 More Documents Available

 

Docket Entries

  • 04/06/2021
  • Hearing04/06/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 04/06/2021
  • Hearing04/06/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Quash Deposition Subpoenas

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  • 04/06/2021
  • Hearing04/06/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Quash Deposition

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  • 04/06/2021
  • Hearing04/06/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Amend Judgment

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  • 12/21/2020
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 12/03/2020
  • Docketat 08:30 AM in Department 20, David J. Cowan, Presiding; Hearing on Motion to Compel Further Discovery Responses - Held - Continued

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  • 12/03/2020
  • Docketat 08:30 AM in Department 20, David J. Cowan, Presiding; Hearing on Motion to Quash (Deposition) - Held - Continued

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  • 12/03/2020
  • Docketat 08:30 AM in Department 20, David J. Cowan, Presiding; Hearing on Motion to Quash (Deposition Subpoenas) - Held - Continued

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  • 12/03/2020
  • Docketat 08:30 AM in Department 20, David J. Cowan, Presiding; Hearing on Motion to Amend Judgment (to Include Alter Ego Individual) - Held - Continued

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  • 12/03/2020
  • DocketMinute Order ( (Hearing on Motion to Amend Judgment to Include Alter Ego Indi...)); Filed by Clerk

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271 More Docket Entries
  • 06/13/2011
  • DocketAnswer; Filed by Law Offices of Moon Kim, Professional (Defendant)

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  • 06/06/2011
  • DocketProof-Service/Summons; Filed by Daisy Sandoval (Plaintiff)

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  • 06/06/2011
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/31/2011
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/31/2011
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 05/31/2011
  • DocketORDER TO SHOW CAUSE HEARING

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  • 05/31/2011
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/26/2011
  • DocketComplaint; Filed by Daisy Sandoval (Plaintiff)

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  • 04/26/2011
  • DocketCOMPLAINT FOR DAMAGES FOR: I. Pregnancy Discrimination; ETC

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  • 04/26/2011
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC460381    Hearing Date: April 6, 2021    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20


Hearing Date: Tuesday, April 6, 2021

Case Name: Sandoval v. Law Offices of Kim

Case No.: BC460381

Motion: Amend Judgment; Motions to Quash Deposition Subpoenas

Moving Party: Plaintiff Andrew Larson (Amend Judgment);

Moon Ki Kim (Quash Subpoenas)

Responding Party: Kim (Amend Judgment);

Plaintiff Larson (Quash Subpoenas)

Notice: OK


Ruling: The Motion to Amend Judgment is DENIED WITHOUT PREJUDICE.

The Motions to Quash are GRANTED.

Kim to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


 

BACKGROUND

On April 26, 2011, Plaintiff Sandoval filed a Complaint against Law Offices of Kim stating claims for pregnancy discrimination arising out of her employment at the Law Offices. Nominal defendant Moon Ki Kim practiced law through the Law Offices of Kim until 2013.

On April 18, 2013, following mediation, Sandoval settled with the Law Offices. Kim executed the settlement.

On August 14, 2013, the Court entered stipulated judgment in Sandoval’s favor against “Law Offices of Moon Kim” for $160,000.

On January 25, 2017, Sandoval assigned the judgment to Andrew Larson.

On May 8, 2019, the Court (by Judge Edward B. Moreton) signed an Affidavit of Identity and Order to add Kim to the judgment as an additional judgment debtor.

On September 11, 2019, Kim appealed from the Affidavit of Identity and Order.

On October 29, 2019, Larson filed a Motion to Amend Judgment to add Moon Ki Kim as a judgment debtor on the basis that Law Offices of Moon Kim is Kim’s alter ego.

On February 6, 2020, Kim filed an Opposition.

On February 11, 2020, Larson filed a Reply.

On February 20, 2020, the Court (by Judge James E. Blancarté) continued the hearing on this motion in view of Kim’s pending appeal of the Affidavit of Identity and Order.

On July 7, 2020, Kim filed a First Status Report re: pending appeal informing the Court of Judge Blancarté’s previous order continuing the motion.

On July 13, 2020, the Court continued the Motions to Quash Deposition Subpoenas and Motion to Amend Judgment to December 3, 2020 pending resolution of Kim’s appeal.

On November 30, 2020, Kim filed a Second Status Report indicating the appellate case was fully briefed but no hearing had been set for argument.

On December 3, 2020, the Court continued the Motions to Quash Deposition Subpoenas and Motion to Amend Judgment to April 6, 2021 pending the conclusion of the appeal.

On March 18, 2021, the Court of Appeal issued its opinion on Kim’s appeal.

On April 1, 2021, Kim filed a Third Status Report indicating the appeal had concluded.

On April 2, 2021, Larson filed a Status Report regarding the appeal.

DISCUSSION

The Motion to Amend Judgment is now ripe for decision. The appeal has concluded, and the Court of Appeal has expressly endorsed the procedure recommended here by Judge Blancarte—a noticed motion under CCP sec. 187 to designate Moon Kim as an alter ego judgment debtor. However, Larson has not met his “burden of demonstrating, by a preponderance of the evidence” that (1) Kim controlled the underlying litigation such that he was “virtually represented in the litigation” through the Law Offices, (2) “there was such a unity of interest and ownership . . . that separate personalities . . . did not exist,” and (3) “an inequitable result will follow” unless Kim is named as a judgment debtor. (Highland Springs Conference & Training Center v. City of Banning (2016) 244 Cal.App.4th 267, 289; Relentless Air Racing LLC v. Airborne Turbine Ltd. Partnership (2013) 222 Cal.App.4th 811, 815-16.)

At the outset, the Court denies Larson’s request for judicial notice of documents concerning the suspension of Roger W. Shpall and corporate documents signed by Shpall. The disciplinary measures taken against Shpall are irrelevant to whether Kim is an alter ego of the Law Offices. Larson’s arguments that Kim’s retention of Shpall was improper, or that he was not authorized to sign the certificate of dissolution for the Law Offices, are irrelevant in the context of this motion.  

Applicable Law

Code of Civil Procedure “[s]ection 187 grants every court the power and authority to carry its jurisdiction into effect,” including by “amend[ing] a judgment to add an alter ego of an original judgment debtor.” (Highland, supra, 244 Cal.App.4th at 280.) “Amending a judgment to add an alter ego of an original judgment debtor ‘is an equitable procedure based on the theory that the court is not amending the judgment to add a new defendant but is merely inserting the correct name of the real defendant.’” (Id. (quoting McClellan v. Northridge Park Townhome Owners Assn. (2001) 89 Cal.App.4th 746, 752).) Such amendment must be achieved “by noticed motion,” and the Court “may rule on the motion based solely on declarations and other written evidence” without an evidentiary hearing. (Id.) “The decision to grant or deny the motion lies within the sound discretion of the trial court.” (Id.) However, “[a]lter ego ‘is an extreme remedy, sparingly used’” and the “standards for the application of alter ego principles are high”; therefore, alter ego liability is imposed “reluctantly and cautiously.” (Id. at 281.)

“To prevail on the motion, the judgment creditor must show, by a preponderance of the evidence, that: ‘(1) the parties to be added as judgment debtors had control of the underlying litigation and were virtually represented in that proceeding; (2) there is such a unity of interest and ownership that the separate personalities of the entity and the owners no longer exist; and (3) an inequitable result will follow if the acts are treated as those of the entity alone.’” (Id. (quoting Relentless, supra, 222 Cal.App.4th at 815-16).) (id. at p. 815, 166 Cal.Rptr.3d 421) A finding of unity of interest and ownership may arise from “the commingling of funds and assets of the two entities, identical equitable ownership in the two entities, use of the same offices and employees, disregard of corporate formalities, identical directors and officers, and use of one as a mere shell or conduit for the affairs of the other” as well as “[i]nadequate capitalization of the original judgment debtor,” though these factors are not exhaustive. (Id. at 281 (quoting Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1342); see Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 811-12 (listing factors to consider).) “No single factor governs; courts must consider all of the circumstances of the case in determining whether it would be equitable to impose alter ego liability.” (Id. at 281.)

Application to Facts

Here, Larson contends there is a sufficient unity of ownership and interest for several reasons, but principally that “[t]here is no evidence” of the following: “that stock was ever issued for the Kim corporation”; “that the Kim corporation observed any of the mandatory formalities in the conduct of a corporation”; or “that the Kim corporation obtained any of the required certificates or registrations required to practice law through a corporate entity.” (Motion, p. 8.) This improperly reverses the burden of proof. Larson must demonstrate by a preponderance of the evidence the unity of interest and ownership here. (Highland, supra, 244 Cal.App.4th at 280.) Kim is not obligated to prove he is not the alter ego of the Law Offices.

To the extent Larson relies on the failure to register the Law Offices with the State Bar, as required by Bus. & Prof. Code sec. 6160 and State Bar Rule 3.150 et seq., this argument is unpersuasive. The Court is unaware of any authority applying the “extreme remedy” of alter ego amendment merely because the practice of law through the corporation was not authorized. The “disregard of corporate formalities” is merely one of many factors to consider in the context of “all of the circumstances of the case.” (Highland, supra, 244 Cal.App.4th at 281.) Similarly, to the extent Larson argues it was improper for Roger Shpall to act on behalf of the Law Offices during his bar suspension, this does not tend to show unity of ownership and interest between Kim and the Law Offices. As discussed below, Larson incorrectly argues Kim needs to justify his alleged improper conduct to resist the equitable remedy Larson seeks, but this reflects a misunderstanding of the doctrine of unclean hands.

Larson also claims the Kim corporation “failed to have adequate capitalization so as to protect its creditors” and claims “Kim continued to practice after the corporate dissolution.” (Motion, p. 9.) However, Larson has supplied no evidence supporting either assertion; Larson has not indicated the factual basis for his conclusion that the Law Offices have inadequate capitalization and does not offer any proof of Kim’s continued law practice. (Larson references “Exhibit G to Attorney Kim’s ex parte declaration,” but without further detail the reference is unclear to the Court.) Wells Fargo Bank v. Weinberg (2014) 227 Cal.App.4th 1 is distinguishable, as in that case, the party seeking to amend the judgment “offer[ed] evidence that Weinberg, who owned his professional corporation, stopped its operation, but continued to practice law as a sole proprietor using the same name, in the same location, using the same equipment” and “paid himself and other family members $420,981.78 from the corporation.” (Id. at 5.) There is no analogous evidence here of continuous practice by Kim, much less under “the same name [and] in the same location,” and no evidence Kim commingled funds. Larson also asserts that Kim “had control over the litigation, [thereby] insuring that naming such person post-judgment as a defendant will not violate their rights to due process.” (Motion, p. 9.) Again, this is merely a conclusion where unsupported by any argument or competent evidence.

Larson also argues “Kim has the burden to prove both a legal right to protection through the corporate entity, and clean hands in dealing with Ms. Sandoval and her assignee.” (Motion, p. 9.) Larson relies on Civ. Code sec. 3517 (“No one can take advantage of [their] own wrong”), Katz v. Karllson (1948) 84 Cal.App.2d 469, 475, and Lynn v. Duckel (1956) 46 Cal.2d 845, 850. None of these authorities support Larson’s position—Kim does not bear the burden of proving clean hands where he is not requesting any equitable relief from the Court. Rather, Larson is seeking equitable relief adding Kim as a judgment debtor. (Highland, supra, 244 Cal.App.4th at 280 (“Amending a judgment to add an alter ego of an original judgment debtor ‘is an equitable procedure…’”))

The cases supplied indicate only that the party seeking affirmative equitable relief—“a party, who, as actor, seeks to set the judicial machinery in motion and obtain some remedy”—may need to prove clean hands. (Katz, supra, 84 Cal.App.2d at 475.) “The burden is on the one coming into a court of equity for relief to prove not only his legal rights but his clean hands, and he may not rely on any deficiencies that may be laid at the door of the defendants.” (Id.) Similarly, Lynn held that equitable relief is unavailable to “a party who, as actor, seeks to set judicial machinery in motion and obtain some remedy, [but] has violated conscience, good faith or other equitable principle in his prior conduct.” (Lynn, supra, 46 Cal.2d at 850.) That rule has no application to a party opposing another party’s request for equitable relief; Larson cannot obtain equitable remedies merely by asserting that Kim has unclean hands and demanding he prove otherwise, nor can he prevail by proving that Kim has unclean hands.

The Motion to Amend Judgment is DENIED WITHOUT PREJUDICE. Larson failed to carry his burden to show, by a preponderance of the evidence, each of the elements required to amend the judgment under an alter ego theory.

Motions to Quash Subpoenas for Production of Documents

Kim also seeks to quash deposition subpoenas served by Larson on Wells Fargo Bank and Bank of America. Larson did not file Oppositions to the Motions to Quash. Generally, the subpoenas seek Kim’s financial information regardless of whether the financial information is connected to the Law Offices.[1] The nature of the requests for Kim’s private financial information indicate Larson is seeking evidence to support his collection efforts against Kim, including to support his argument that Kim should be named as an additional judgment debtor.

In “the context of postjudgment enforcement proceedings, ‘the use of a subpoena duces tecum to discover and inspect relevant documents is an accepted practice.’” (Shrewsbury Mgmt., Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1225.) “[S]ince the scope of a judgment debtor examination under section 708.110 has been interpreted to permit a wide scope of inquiry into the judgment debtor's finances [cite], it follows that the scope of a subpoena duces tecum served on a third party that is tethered to the examination of the judgment debtor . . . must be similarly broad.” (Id.) Thus, “when a subpoena duces tecum is tethered to an examination [of the judgment debtor] under section 708.110, the scope of discoverable documents must be broadly construed to include matters relating to the ‘property and business affairs of the judgment debtor’ . . . and is not limited by section 708.120.” (Id. at 1228.) However, when the subpoena is tethered to an examination of a third party under section 708.120, the scope of discovery is not so broad. (See Fox Johns Lazar Pekin & Wexler, APC v. Superior Court (2013) 219 Cal.App.4th 1210, 1219-1222 (finding subpoena “to help prepare [the creditor] for the examination of [the debtor] and to confirm the existence of the subject property and debt” must be limited to the scope provided in CCP sec. 708.120.))

Here, Larson served subpoenas on Wells Fargo and Bank of America generally seeking Kim’s financial information, typically but not always in connection with the Law Offices. In the Court’s view, the subpoenas here are tethered to an examination of a third party, Kim, rather than the judgment debtor, the Law Offices. (Id. at 1222 (“A subpoena must be tethered to a case.”)) As Kim is not a judgment debtor, examination of his finances is in the nature of a third party examination; therefore, the subpoenas are subject to the narrower scope of Section 708.120. “Under its plain meaning, this statutory language provides the trial court with the authority to permit a creditor to seek information regarding the existence of the debtor's property in the third party's possession and/or a debt owed to the debtor. A third party document subpoena must therefore be limited to ‘confirm[ing] the existence of the subject property [and/or] debt.’” (Finance Holding Co. LLC v. The American Institute of Certified Tax Coaches, Inc. (2018) 29 Cal.App.5th 663, 682.)

Larson does not argue the subpoenas are within the scope of permissible postjudgment discovery under Section 708.120 and does not address the privacy objections Kim raises. The broad requests for his financial information do not appear to be limited to confirming the existence of the Law Offices’ debt to Larson, nor are they premised on a showing that Kim “has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor.” (Id.) The Motions to Quash are GRANTED—Kim is not a judgment debtor and the broad requests for his personal financial information exceed the scope of third party postjudgment discovery permitted by CCP sec. 708.120.

CONCLUSION

The Motion to Amend Judgment is DENIED WITHOUT PREJUDICE.

The Motions to Quash are GRANTED.

Kim to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear remotely by LA Court Connect rather than in person.


[1] For example, Larson seeks any documents reflecting “correspondence of any nature including, but not limited to, letters to the bank, letters from the bank, notes, memoranda to the file, collateral agreements, credit reports, financial statements, loan applications, debit memos, cash in tickets, bank checks, credit memos, cash out tickets, signature cards, and memoranda for all financial accounts in which Moon K. Kim[] individually or as a corporate officer of Law Offices of Moon Kim, claims or is indicated as having an ownership interest, irrespective of whether interests are legal or beneficial, both in whole and in part, including those in which Michael S. Kim[], individually, or with any other third party or parties, claims or is indicating as having an ownership interest in, irrespective of whether interests are legal or beneficial, both in whole and in part, including, without limitation bank accounts, savings accounts, checking accounts, money market accounts, safety deposit box, savings and loan accounts, certificates of deposit, time deposits, investment accounts, trust accounts, custodial accounts, credit union accounts, and all other holdings of funds by any third party or parties or third party institutions, including but not limited to check registers, bank books deposit slips, deposited checks, reconciliation statements, inter-bank transfers of money, wire transfers, canceled checks with both the front and the back of the checks, check stubs, documents showing monies deposited into, and withdrawn from, such accounts, and all bank statements.

Case Number: BC460381    Hearing Date: July 13, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date: Monday, July 13, 2020

Case Name: Sandoval v. Law Offices of Kim

Case No.: BC460381

Motion: Amend Judgment; Motions to Quash Deposition Subpoenas

Moving Party: Plaintiff Andrew Larson (Amend Judgment);

Nominal Defendant Moon Ki Kim (Quash Subpoenas)

Responding Party: Nominal Defendant Kim (Amend Judgment);

Plaintiff Larson (Quash Subpoenas)

Notice: OK


Ruling: The Motion to Amend Judgment and Motions to Quash are CONTINUED to December 3, 2020 at 8:30 a.m. in Dept. 20 pending the status of Kim’s appeal.

Larson to give notice.


BACKGROUND

On April 26, 2011, Plaintiff Sandoval filed a Complaint against Law Offices of Kim stating claims for pregnancy discrimination arising out of her employment at the Law Offices. Nominal defendant Moon Ki Kim practiced law through the Law Offices of Kim until 2013.

On April 18, 2013, following mediation, Sandoval settled with the Law Offices. Kim executed the settlement.

On August 14, 2013, the Court entered stipulated judgment in Sandoval’s favor against “Law Offices of Moon Kim” for $160,000.

On January 25, 2017, Sandoval assigned the judgment to Andrew Larson.

On May 8, 2019, the Court (by Judge Edward B. Moreton) signed an Affidavit of Identity and Order to add Kim to the judgment as an additional judgment debtor.

On September 11, 2019, Kim appealed from the Affidavit of Identity and Order.

On October 29, 2019, Larson filed a Motion to Amend Judgment to add Moon Ki Kim as a judgment debtor on the basis that Law Offices of Moon Kim is Kim’s alter ego.

On February 6, 2020, Kim filed an Opposition.

On February 11, 2020, Larson filed a Reply.

On February 20, 2020, the Court (by Judge James E. Blancarté) continued the hearing on this motion in view of Kim’s pending appeal of the Affidavit of Identity and Order.

On July 7, 2020, Kim filed a status report re: pending appeal informing the Court of Judge Blancarté’s previous order continuing the motion.

DISCUSSION

The Motion is CONTINUED pending progress on Kim’s appeal from the Affidavit of Identity and Order. Kim’s appeal is a basis for continuance for three reasons.

First, waiting for the appeal to resolve will promote judicial economy. The appellate court is currently addressing the legal relationship between Kim and the Law Offices, even though it is not addressing the specific alter ego argument at issue here. If the Court of Appeal affirms, this would obviate the need to analyze the alter ego issue because Larson would be able to add Kim to the judgment on the independent basis of an Affidavit of Identity. If the Court grants this motion and the Court of Appeal subsequently affirms Judge Moreton, the Court would have merely sped up the timeline for Larson’s requested relief. Ruling on a secondary theory for Larson’s requested relief where the Court of Appeal is already considering Larson’s primary theory is not an effective use of the Court’s time. That would be notably inefficient regardless of whether there is any risk of interfering with the appellate proceedings.

Second, and on that subject, Larson’s motion does pose some risk of interference with the pending appeal. The relief sought is, in practical effect, the same relief Larson sought before Judge Moreton (namely, adding Kim to the judgment). Judge Moreton granted that relief by way of the Affidavit of Identity and Order to add Kim. If this Court grants the motion to amend the judgment, this would provide Larson the same relief already obtained subject to a pending appeal. Granting the requested relief would, therefore, disrupt the status quo pending appeal. Indeed, granting the motion would moot the appeal to some degree where it would effectively allow Larson to prevail regardless of the outcome of appeal by granting relief on an alternative basis. It would also effectively enforce Judge Moreton’s Order to add Kim, which is on appeal.

Consider the following array of outcomes. If the Court grants this motion and the appellate court affirms Judge Moreton, the Court will have merely expedited Larson’s relief despite an appeal. It is not clear that this is a more desirable outcome than allowing the appeal to timely resolve. If the Court denies this motion and the appellate court affirms, Larson will still obtain the requested relief, but at the unnecessary expense of the Court’s time resolving this motion with an appeal pending on practically the same issue. If the Court grants this motion and the appellate court reverses Judge Moreton, there will likely be further conflict over whether Kim should be added to the judgment on this alternative basis despite the appellate court’s findings. But if the Court continues this motion and the appellate court reverses, the Court will be in a better position to address these alter ego arguments against the backdrop of the appellate court’s analysis. If the appellate court affirms, the Court simply will not need to address Larson’s alter ego arguments, saving valuable time for everyone. Thus, it is clear that a continuance produces the fairest and most efficient results regardless of the outcome on appeal.

Third, Larson will not be prejudiced by a continuance for the appeal to proceed. Indeed, Larson has already requested extensions for briefing deadlines in the Court of Appeal. A party is not prejudiced by ordinary resolution of an appeal. Moreover, Larson acquired the judgment from Sandoval in 2017—there is no reason to think further delay to resolve Kim’s appeal would meaningfully prejudice Larson. Amending a judgment to add an alter ego is “an extreme remedy, sparingly used,” and the Court does not want to prematurely resolve this matter where the Court of Appeal is actively considering a related issue. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 539.)

Kim’s motions to quash Larson’s deposition subpoenas are also CONTINUED. Whether the subpoenas are proper depends upon whether Kim is properly added as a judgment debtor. The Affidavit of Identity is currently on appeal and Larson’s motion has been continued. Service of subpoenas is premature before Kim has been finally found to be an additional judgment debtor. Moreover, Larson has not opposed the motions to quash these deposition subpoenas.  

Accordingly, Larson’s Motion to Amend Judgment and Kim’s Motions to Quash are all CONTINUED to December 3, 2020 at 8:30 a.m. in Dept. 20 pending the status of Kim’s appeal.

Larson to give notice.

Case Number: BC460381    Hearing Date: February 20, 2020    Dept: 25

MOTION TO AMEND JUDGMENT

(CCP § 187)

TENTATIVE RULING:

Judgment Assignee Andrew Larson’s Motion to Amend Judgment to Include Alter Ego Individual is CONTINUED TO APRIL 27, 2020, at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE.

OPPOSITION: Filed on February 6, 2020 [ ] Late [ ] None

REPLY: Filed on February 11, 2020 [ ] Late [ ] None

ANALYSIS:

  1. Background & Discussion

On April 26, 2011, Plaintiff Daisy Sandoval (“Plaintiff”) filed an action for pregnancy discrimination and wrongful termination against Law Offices of Moon Kim, Professional Corporation (“Judgment Debtor”). On April 18, 2013, the parties signed a Stipulation for Settlement (the “Settlement Stipulation”). (Oppo., Kim Decl., ¶ 7, Exh. C.) On May 15, 2013, Plaintiff filed a Notice of Settlement of the Entire Case. On August 14, 2013, the Court entered Judgment by Stipulation against Judgment Debtor in the amount of $160,000.00. (8/14/13 Judgment.) Notably, neither the Settlement Stipulation, Notice of Settlement, nor the Judgment include Judgment Debtor’s designation as “A Professional Corporation”; the party is simply identified as “Law Offices of Moon Kim.”

On January 23, 2017, Plaintiff assigned her Judgment to Judgment Assignee Andrew Larson (“Judgment Assignee”). (1/25/17 Acknowledgement of Assignment.)

On May 8, 2019, Judge Moreton signed an Affidavit of Identity and Order to add non-party Moon Kim (“Kim”) as an additional name of Judgment Debtor. Essentially, the Court deemed Judgment Debtor to be “Law Offices of Moon Kim aka Moon Kim” or “Moon Kim dba Law Offices of Moon Kim.” A Writ of Execution was thereafter issued to levy Kim’s personal bank accounts. On August 4, 2019, this case was reassigned to Department 94.

On July 30, 2019, Kim filed a Motion for Order to Recall the Writ of Execution, to Vacate Order on Affidavit of Identity, to Release Property, and to Award Fees and Costs. In part, Kim argued that The Law Offices of Moon Kim, a corporation, and Moon Kim, an individual, are legally different entities. On August 20, 2019, the Court found, in pertinent part, Kim should have brought a noticed motion for reconsideration and to vacate the Affidavit of Identity and Order if Kim wanted to challenge it. (8/20/19.) The Court also noted that before filing a motion, if any, regarding theories of alter ego, Kim must file a motion to reconsider and vacate Department 44’s Affidavit of Identity and Order. (Id.)

On September 11, 2019, Kim filed a Notice of Appeal of the Affidavit of Identity and Order and the August 20, 2019 Order (the “Appeal”). (9/11/19 Notice of Appeal.)

On October 29, 2019, Judgment Assignee filed the instant Motion to Amend Judgment to Include Alter Ego Individual (the “Motion”). On February 6, 2020, Judgment Assignee filed an Opposition and on February 11, 2020, Kim filed a Reply.

As Kim has filed an Appeal of the Affidavit of Identity and Order and the August 20, 2019 Order, the Court continues the hearing on this Motion pending the resolution of the Appeal. If Judge Moreton’s Orders are affirmed, then the Court may amend the judgment pursuant to the Order, and any arguments in the instant Motion regarding whether the corporate veil was pierced would be moot.

  1. Conclusion & Order

For the foregoing reasons, Judgment Assignee Andrew Larson’s Motion to Amend Judgment to Include Alter Ego Individual is CONTINUED TO APRIL 27, 2020, at 10:30 a.m. in Department 25 SPRING STREET COURTHOUSE.

Moving party is ordered to give notice.

Case Number: BC460381    Hearing Date: December 03, 2019    Dept: 94

PRELIMINARY INJUNCTION

(Code Civ. Proc., § 526)

TENTATIVE RULING:

Andrew Larson dba HCR Beverly Hills’s request for a Preliminary Injunction is GRANTED.

The hearing on Andrew Larson dba HCR Beverly Hill’s Motion to Amend Judgment is advanced to Feb. 20, 2020 at 10:30 am in Department 94.

SUMMARY OF COMPLAINT: Action for wrongful termination.

RELIEF REQUESTED:

Issue a Preliminary Injunction enjoining non-party Moon Ki Kim (“Kim”) from spending, transferring, or wasting any of the subject funds in his Wells Fargo and Bank of America, N.A. Accounts (the “Bank Accounts”) and restraining the Los Angeles Sheriff’s Department from releasing any personal property to Kim or Kim’s business, the Law Offices of Moon Kim, Professional Corporation (the “Law Offices of Moon Kim”).

Plaintiff/Judgment Creditor Daisy Sandoval obtained a writ of execution against the personal property of non-party Moon Kim (“Kim”) by submitting an affidavit of identity. In the affidavit of identity, Judgment Creditor claims that “Moon Kim” is an additional name of Defendant/Judgment Debtor Law Offices of Moon Kim, Professional Corporation (“Judgment Debtor”). Kim claims that he is an individual separate and apart from the corporate Judgment Debtor in this action. Kim claims that he is neither a party to this action, nor has been properly served. Judgment Assignee, Andrew Larson dba HCR Beverly Hills (“Judgment Assignee”), now applies to the Court for a Preliminary Injunction pending resolution of his Motion to Amend Judgment to Include Alter Ego Individual, Moon Ki Kim. The Preliminary Injunction sought is necessary to prevent the Sheriff from releasing property to Kim and prevent Kim from hiding the funds that are currently frozen in his Wells Fargo and Bank of America Accounts pursuant to the Court’s August 20, 2019 order.

ANALYSIS:

I. Background

On August 14, 2013, an unlimited jurisdiction court entered a stipulated judgment pursuant to Code of Civil Procedure section 664.6 in favor of Judgment Creditor Daisy Sandoval (“Judgment Creditor”) and against Judgment Debtor Law Offices of Moon Kim. On January 25, 2017, Judgment Creditor assigned her judgment to Judgment Assignee Andrew Larson dba HCR Beverly Hills (“Judgment Assignee”). On May 8, 2019, Judge Moreton signed an Affidavit of Identity and Order to add non-party Moon Kim (“Kim”) as an additional name of Judgment Debtor. In effect, the Court has deemed Judgment Debtor to be “Law Offices of Moon Kim aka Moon Kim” or “Moon Kim dba Law Offices of Moon Kim.” Soon after, Judge Moreton issued a Writ of Execution to levy Kim’s personal bank accounts (the “Bank Accounts”). On August 1, 2019, this case was reassigned from Judge Moreton in Department 44 to Department 94 in limited jurisdiction court.

On August 20, 2019, the Court denied Kim’s Motion to Quash Writ of Execution and for Attorney’s Fees. The Court also ordered that Judgment Assignee “is not to make any further attempts to collect the subject funds, and []Kim is ordered to not spend, transfer, or waste any of the subject funds, which are of issue, until further order of the court.” (Minute Order, 8/20/19.)

On Spetember 11, 2019, Kim filed a notice of appeal as to (1) the May 6, 2019 order on Judgment Assignee’s “AFFIDAVIT OF IDENTITY AND ORDER” and (2) The August 20, 2019 order “(1) recalling or quashing the Writ of Execution purporting to name Kim as a judgment debtor; (2) vacating the Order on Affidavid of Identity, filed on May 6, 2019; (3) releasing property of Kim from lien and custody; and (4) awarding reasonable fees and costs incurred by Kim” and related Nunc Pro Tunc order requiring Kim to file a motion to reconsider and vacate Department 44’s Affidavit of Identity and Order.

On October 29, 2019, Judgment Assignee filed a Motion to Amend Judmgent to Include Alter Ego Individual, Moon Ki Kim.

Before the Court is an Order to Show Cause Why a Preliminary Injunction Should Not Be Ordered. Judgment Assignee filed an Ex Parte Application for Temporary Restraining Order and Order to Show Cause re Preliminary Injunction on October 30, 2019. Kim filed an Opposition to Judgement Assignee’s Ex Parte Application on October 31, 2019. The Court issued a Temporary Restraining Order in this matter on October 31, 2019 and set the instant Order to Show Cause for hearing on December 3, 2019. The Court is not in receipt of an opposition or reply.

II. Discussion

  1. Whether a Preliminary Injunction Should Issue As Requested

Judgment Assignee brings the instant ex parte application for a Temporary Restraining Order and Order to Show Cause re Preliminary Injunction to restrain (1) Wells Fargo Bank, N.A. and Bank of America, N.A. (collectively, the “Banks”) from releasing any funds in Kim’s personal Bank Accounts to Kim, and (2) retrain the Los Angeles Sheriff’s Department from releasing any funds to Kim.

  1. Judgment Assignee’s Arguments

Judgment Assignee brings this application to freeze the funds in non-party Kim’s Bank Accounts. Judgment Assignee contends that following the Court’s August 20, 2019 order, which prohibited the Los Angeles Sheriff’s Department and Banks from releasing any funds to Kim, both the Los Angeles Sheriff’s Department and the Banks have violated this order. A Preliminary Injunction will merely enforce the existing court order in this matter by freezing the assets and collection efforts of both parties pending a full hearing on a theory of alter ego. If a Preliminary Injunction is not issued, Judgment Assignee will be harmed because he will lose any security for relief. Judgment Assignee is likely to prevail on his motion to amend judgment to include Kim as an alter ego individual because the Court already determined that Kim was the alter ego of entity defendant Law Offices of Moon Kim in the prior order on the Affidavit of Idenity and by issuing a writ of execution for the levy presently holding the safe-deposit at issue.

 

  1. Kim’s Arguments

Judgment Assignee’s request for a preliminary injunction should be denied because the only attempted change of the status quo was made by Judgment Assignee when he violated the Court’s August 20, 2019 order by placing levies on Kim’s Bank Accounts in early September 2019. Judgment Assignee’s request is purportedly limited to a safe deposit box; however, the proposed preliminary injunction is broadly worded to include all of Kim’s assets. No injunction should issue preventing Kim and his attorneys from transferring Kim’s funds to protect them from Judgment Assignee’s unauthorized collection activities. Finally, Judgment Assignee’s claim that Kim and/or the Los Angeles County Sheriff’s Office attempted to release funds after the Court’s August 20, 2019 order is false.

  1. Legal Standard

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. (See Scaringe v. J.C.C. Enterprises, Inc. (1988) 205 Cal.App.3d 1536.) The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396. 1402.) “An injunction may be granted…[w]hen it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” (Code Civ. Proc., § 526, subd. (a)(3).)

The trial court considers two factors in determining whether to issue a preliminary injunction: (1) the likelihood the applicant will prevail on the merits of its case at trial, and (2) the interim harm the applicant is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction. (Code Civ. Proc. § 526(a); see Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 866–867.) The balancing of harm between the parties “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain, supra, 205 Cal.App.4th at p. 867.) Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. (Doe v. Wilson (1997) 57 Cal.App.4th 296, 304.)

Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., ReadyLink Healthcare v. Cotton (2005) 126 Cal.App.4th 1006, 1016; Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150.) The burden of proof is on the party moving for the injunction. (See O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. (Code Civ. Proc. § 526, subd. (a)(4); Thayer Plymouth Center, Inc. v. Chrysler Motors (1967) 255 Cal.App.2d 300, 307.)

  1. Analysis

The following analysis first establishes the status quo and movant’s entitlement to a preliminary injunction then determines the likelihood of success on Judgment Assignee’s pending Motion to Amend Judgment to Include Alter Ego Individual, Moon Ki Kim (the “Motion”). and weighs the harm to each party if the Court issues a preliminary injunction pending determination on Judgment Assignee’s Motion.

  1. Status Quo

The last uncontested status which preceded the pending controversy was established in this Court’s August 20, 2019 order which states: “[Jusdgment Assignee is not to make any further attempts to collect the subject funds, and []Kim is ordered to not spend, transfer, or waste any of the subject funds, which are of issue, until further order of the court.” It is uncontested that leaving the Bank Accounts untouched remains the status quo in the pending action.

  1. Injunction to Prevent the Dissipation of Funds

Judgment Assignee argues that he is entitled to an injunction to bar the dissipation of funds pursuant to Code of Civil Procedure section 526, subdivision (a)(3).  Such an injunction is applicable only when there are specific, identifiable funds and the injunction is necessary to prevent dissipation of those funds.  (Heckmann v. Ahmanson (1985) 168 Cal. App. 3d 119, 136 (Heckmann).)  In Heckmann, the Court of Appeal determined that an injunction was proper when there was sufficient evidence to believe dissipation of a funds was occurring, and “absent injunctive relief, plaintiffs would be left with a ‘naked claim for damages ... to be obtained through an action at law.’ ” (Heckmann, supra, 168 Cal.App.3d at p. 136.) Moreover, the funds were identifiable as those acquired from the sale of stock at issue. (Id. p. 138.)

Here, Judgment Assignee identifies the funds as those contained in Kim’s Wells Fargo and Bank of America accounts, defined as the “Bank Accounts,” above. Judgment Assignee also identifies a safe deposit box that was levied by the Los Angeles Sheriff’s Department which the Sheriff’s Department stated its intent to release absent a court order. (App. p. 2:8-10.) In his opposition to the ex parte application, Kim contends that if the injunction issues, he and his lawyers will not be able to make any efforts to protect Kim from Judgment Assignee’s collections activities. (Opp. P. 2:19-20.) This is, in essence, an admission that Kim intends to hide his assets from Judgment Assignee. As in Heckmann, Judgment Assignee has adequately identified the funds as the Bank Accounts and the safe-deposit box. Moreover, Kim has confirmed Judgment Assignee’s argument that Kim intends to become judgment-proof absent a court order granting Judgment Assignee’s request for a preliminary injunction. The Court finds that Judgment Assignee meets his burden in establishing his entitlement to a preliminary injunction to prevent the dissipation of Kim’s funds.

  1. Likelihood Judgment Assignee Will Prevail In His Motion To Amend Judgment To Include Alter Ego Individual, Moon Ki Kim

Judgment Assignee provides evidence that he will prevail on the merits of his Motion. Judgment Assignee refers to the Judge Moreton’s May 8, 2019 order on the Affidavit of Identity in which Judge Moreton determined that that Kim was the alter-ego of the Law Offices of Moon Kim. Judge Moreton later issued a Writ of Execution to levy Kim’s personal bank accounts. Kim challenged this order on due process grounds claiming that he did not receive notice of the hearing on the Affidavit of Identity. This is sufficent to meet Judgment Assignee’s burden of establishing the likelihood of success on the merits of his Motion to Amend Judgment to Include Alter Ego Individual, Moon Ki Kim.

  1. Balancing Test; Interim Harm to Judgment Assignee Versus Harm to Kim

As discussed above in Section E, Part 2, Kim admits that the only identifiable harm to him is that he and his lawyers will not be able to make any efforts to protect Kim from collections activities. (Opp. P. 2:19-20.) This is, in essence, an admission that Kim intends to hide his assets from Judgment Assignee. If Kim is able to secrete his assets by transferring the funds currently held in his Bank Accounts, Judgment Assignee contends that he will not be able to collect on the judgment that he seeks to have amended to include Kim. As discussed in Section E, Part 2, it is necessary to preserve the status quo when there is evidence that a judgment debtor is secreting assets. Kim admits that he intends to avoid Judgement Assignee’s collection efforts. Kim does not identify any other harm Kim would suffer if his assets are frozen. As such, the Court determines that the interim harm to Judgment Assignee outweighs the harm to Kim.

III. Conclusion & Order

For the foregoing reasons, Judgment Assignee, Andrew Larson dba HCR Beverly Hill’s Ex Parte Application for Preliminary Injunction is GRANTED. The Court issues a preliminary injunction: (1) restraining the Los Angeles County Sheriff’s Department from releasing any property belonging to defendant, Law Offices of Moon Kim or non-party individual, Moon Ki Kim, pursuant to the Affidavit of Identity and Order, Notice of Levy, and Writ of Execution issued in this matter naming Kim as the judgment debtor; and (2) enjoining Kim, individually, and through his agents, assigns, partners, or an individual or entity acting in concert with Kim from obtaining, or making any efforts towards obtaining, the release of any property which is/are the subject of any Notice of Levy and Writ of Execution issued in this matter pursuant to the Affidavit of Identity and Order naming Kim as the judgment debtor.

The hearing on Andrew Larson dba HCR Beverly Hill’s Motion to Amend Judgment is advanced to Feb. 20, 2020,  at 10:30 am in Department 94.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the Los Angeles Superior Court’s website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the Order to Show Cause will be placed off calendar.

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