This case was last updated from Los Angeles County Superior Courts on 08/11/2021 at 21:34:52 (UTC).

DO WOO KIM VS JOON CHUL PARK

Case Summary

On 12/11/2019 DO WOO KIM filed a Contract - Business lawsuit against JOON CHUL PARK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI, RICHARD E. RICO and MICHAEL L. STERN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4758

  • Filing Date:

    12/11/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Business

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JON R. TAKASUGI

RICHARD E. RICO

MICHAEL L. STERN

 

Party Details

Plaintiffs and Cross Defendants

KIM DO WOO AN INDIVIDUAL

THE WILTON KOREAN PRESBYTERIAN CHURCH IN LOS ANGELES NON-PROFIT RELIGIOUS CORPORATION

KIM DO RIM AN INDIVIDUAL

KIM DO WOO

KIM DO RIM

CHO HAE HWAN

Defendants

BUCHANAN & PATTERSON LLP A CALIFORNIA LIMITED LIABILITY PARTNERSHIP

PARK JOON CHUL AN INDIVIDUAL

HAN HYUN JONG AN INDIVIDUAL

CHO MARY S. AN INDIVIDUAL

LEE MARIAN K. AN INDIVIDUAL

YOON YOUNG SHIN AN INDIVIDUAL

CHO JONG SOO AN INDIVIDUAL

KIM JAMES

YOON YOUNG SHIN

KIM JONATHAN

HAN HYUN JONG

Cross Plaintiffs and Defendants

HAN HYUN JONG

CHU NEE DON

CHO YONG CHUL

PARK DAE WON

6 More Parties Available

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

NAKATSU DAVID Y.

NAKATSU DAVID

KIM JAE SOO

Defendant and Cross Plaintiff Attorney

LEE W. DAN

 

Court Documents

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

7/19/2021: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

Statement of Decision - FINAL STATEMENT OF DECISION

7/26/2021: Statement of Decision - FINAL STATEMENT OF DECISION

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW RE: STATEMENT OF DECISION) OF 07/26/2021, FINAL STATEMENT OF DECISION

7/26/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW RE: STATEMENT OF DECISION) OF 07/26/2021, FINAL STATEMENT OF DECISION

Statement of Decision - PROPOSED STATEMENT OF DECISION

6/17/2021: Statement of Decision - PROPOSED STATEMENT OF DECISION

Request for Dismissal

2/1/2021: Request for Dismissal

Answer - ANSWER AMENDED ANSWER TO AMENDED SECOND AMENDED COMPLAINT

2/24/2021: Answer - ANSWER AMENDED ANSWER TO AMENDED SECOND AMENDED COMPLAINT

Separate Statement

4/9/2021: Separate Statement

Exhibit List

5/3/2021: Exhibit List

Exhibit List

5/13/2021: Exhibit List

Declaration - DECLARATION DECLARATION OF HWI YONG KIM

5/17/2021: Declaration - DECLARATION DECLARATION OF HWI YONG KIM

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

5/17/2021: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Objection - OBJECTION EVIDENTIARY OBJECTION TESTIMONY OF NEE DON CHU

5/21/2021: Objection - OBJECTION EVIDENTIARY OBJECTION TESTIMONY OF NEE DON CHU

Minute Order - MINUTE ORDER (NON-JURY TRIAL)

5/24/2021: Minute Order - MINUTE ORDER (NON-JURY TRIAL)

Notice of Change of Firm Name

12/21/2020: Notice of Change of Firm Name

Proof of Service (not Summons and Complaint)

12/17/2020: Proof of Service (not Summons and Complaint)

Request for Dismissal

8/5/2020: Request for Dismissal

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT BY DEFENDANTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

8/6/2020: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT BY DEFENDANTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

Amended Complaint - AMENDED COMPLAINT (1ST)

1/6/2020: Amended Complaint - AMENDED COMPLAINT (1ST)

124 More Documents Available

 

Docket Entries

  • 10/01/2021
  • Hearing10/01/2021 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Filing of Proposed Judgment

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  • 08/31/2021
  • Hearing08/31/2021 at 09:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for New Trial

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  • 08/31/2021
  • Hearing08/31/2021 at 09:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other New Trial

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  • 08/19/2021
  • Hearing08/19/2021 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Non-Appearance Case Review

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  • 08/09/2021
  • DocketOpposition (OPPOSITION? ?TO? ?MOTION? ?FOR?? NEW? ?TRIAL;? ?MEMORANDUM?? OF? ?POINTS? ?AND?? AUTHORITIES;?? DECLARATION? ?OF? ?DAVID? ?Y.?? NAKATSU? ?); Filed by The Wilton Korean Presbyterian Church in Los Angeles, Non-Profit Religious Corporation (Plaintiff); Do Rim Kim (Plaintiff); Do Woo Kim (Plaintiff)

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  • 08/05/2021
  • DocketMemorandum of Points & Authorities; Filed by Joon Chul Park (Defendant); Jong Soo Cho, an individual (Defendant); Mary S. Cho, an individual (Defendant) et al.

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  • 08/03/2021
  • DocketNotice of Hearing of Motion for New Trial; Filed by Clerk

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  • 07/30/2021
  • DocketNotice of Intent to Move for New Trial; Filed by Joon Chul Park (Defendant); Jong Soo Cho, an individual (Defendant); Mary S. Cho, an individual (Defendant) et al.

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  • 07/26/2021
  • Docketat 3:06 PM in Department 17, Jon R. Takasugi, Presiding; Non-Appearance Case Review

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  • 07/26/2021
  • Docketat 1:58 PM in Department 17, Jon R. Takasugi, Presiding; Non-Appearance Case Review

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159 More Docket Entries
  • 01/06/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Do Woo Kim, an individual (Plaintiff)

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  • 01/06/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Do Woo Kim, an individual (Plaintiff)

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  • 01/06/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Do Woo Kim, an individual (Plaintiff)

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  • 12/18/2019
  • DocketNotice of Related Case; Filed by Do Woo Kim, an individual (Plaintiff)

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  • 12/17/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 12/17/2019
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 12/11/2019
  • DocketCivil Case Cover Sheet; Filed by Jae Soo Kim (Attorney); Do Woo Kim, an individual (Plaintiff); Do Rim Kim, an individual (Plaintiff) et al.

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  • 12/11/2019
  • DocketSummons (on Complaint); Filed by Jae Soo Kim (Attorney)

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  • 12/11/2019
  • DocketComplaint; Filed by Do Woo Kim, an individual (Plaintiff); Do Rim Kim, an individual (Plaintiff); The Wilton Korean Presbyterian Church in Los Angeles, Non-Profit Religious Corporation (Plaintiff)

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  • 12/11/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

b'

Case Number: 19STCV44758 Hearing Date: September 1, 2021 Dept: 17

Superior\r\nCourt of California

\r\n\r\n

County of Los Angeles

\r\n\r\n

\r\n\r\n

DEPARTMENT\r\n17

\r\n\r\n

\r\n\r\n

TENTATIVE\r\nRULING

\r\n\r\n

\r\n\r\n\r\n \r\n \r\n \r\n \r\n \r\n \r\n
\r\n

HEA\r\n SOOK CHOI ELKJER

\r\n

\r\n

vs.

\r\n

\r\n

CHARLES\r\n MALONEY, et al.

\r\n

\r\n
\r\n

Case No.: \r\n 21STCV08078

\r\n

\r\n

\r\n

\r\n

Hearing\r\n Date: September 1, 2021

\r\n
\r\n\r\n\r\n\r\n

\r\n\r\n

\r\n\r\n

Defendants’ demurrer is SUSTAINED, WITH 15 DAYS LEAVE\r\nTO AMEND.

\r\n\r\n

\r\n\r\n

On 3/2/2021, Plaintiff Hea Sook Choi Elkjer (Plaintiff)\r\nfiled suit against Charles Maloney, Kyungja Shin Maloney, and Shin MRI, LLC\r\n(collectively, Defendants), alleging: (1) breach of contract; and (2) common\r\ncounts.

\r\n\r\n

\r\n\r\n

Now, Defendants demur to Plaintiff’s Complaint.

\r\n\r\n

\r\n\r\n

Legal Standard

\r\n\r\n

\r\n\r\n

A\r\ndemurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v.\r\nMirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When\r\nconsidering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City\r\nof Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer\r\nproceeding, the defects must be apparent on the face of the pleading or via\r\nproper judicial notice.¿ (Donabedian\r\nv. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the\r\npleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only\r\nwhere the defects appear on the face of the pleading or are judicially\r\nnoticed.”¿ (SKF\r\nFarms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved\r\nin a demurrer hearing is whether the complaint, as it stands, unconnected with\r\nextraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th\r\nat p. 747.)

\r\n\r\n

\r\n\r\n

Discussion

\r\n\r\n

\r\n\r\n

Defendants argue that Plaintiff has not set forth\r\nsufficient facts to state a claim for either cause of action because Plaintiff\r\nhas not alleged facts which could show privity of contract.

\r\n\r\n

\r\n\r\n

The agreement attached as “Exhibit A” to Plaintiff’s\r\nComplaint shows an agreement between three parties—Dr. James Elkjer, Charles\r\nMaloney, and Kyungja Shin Elkjer—to sell partnership interests in Shin MRI, LLC.\r\nPlaintiff does not appear as a signatory to the contract, and does not allege\r\nfacts which could show that she is a party to the contract. “Someone who is not\r\na party to the contract has no standing to enforce the contract or to recover\r\nextra-contract damages for wrongful withholding of benefits to the contracting\r\nparty.” (Hatchwell v. Blue Shield of California (1988) 198 Cal.App.3d\r\n1027, 1034.)

\r\n\r\n

\r\n\r\n

Plaintiff\r\nmust allege facts which could show that she has standing to pursue breach of contract and common counts causes\r\nof action based on a contract to which she is not a party.

\r\n\r\n

\r\n\r\n

Based\r\non the foregoing, Defendants’ demurrer is sustained, with 15 days leave to\r\namend.

\r\n\r\n

\r\n\r\n

It is so ordered.

\r\n\r\n

\r\n\r\n

Dated: August \r\n, 2021

\r\n\r\n

\r\n\r\n

Hon. Jon R.\r\nTakasugi\r\n Judge of the\r\nSuperior Court

\r\n\r\n

\r\n\r\n

\r\n\r\n

Parties who intend to submit on this tentative must\r\nsend an email to the court at smcdept17@lacourt.org\r\nby 4 p.m. the day prior as directed by the instructions provided on the court\r\nwebsite at www.lacourt.org. If a party submits\r\non the tentative, the party’s email must include the case number and must\r\nidentify the party submitting on the tentative. \r\nIf all parties to a motion submit, the court will adopt this\r\ntentative as the final order. If the department\r\ndoes not receive an email indicating the parties are submitting on the\r\ntentative and there are no appearances at the hearing, the motion may be placed\r\noff calendar.

\r\n\r\n

\r\n\r\n

Due to Covid-19, the court is\r\nstrongly discouraging in-person appearances. Parties, counsel, and court reporters present\r\nare subject to temperature checks and health inquiries, and will be denied\r\nentry if admission could create a public health risk. The court encourages the parties wishing to\r\nargue to appear via L.A. Court Connect. \r\nFor more information, please contact the court clerk at (213)\r\n633-0517. Your understanding during\r\nthese difficult times is appreciated.

\r\n\r\n

'b"

Case Number: 19STCV44758 Hearing Date: August 31, 2021 Dept: 17

Superior\r\nCourt of California

\r\n\r\n

County\r\nof Los Angeles

\r\n\r\n

\r\n\r\n

DEPARTMENT 17

\r\n\r\n

\r\n\r\n

TENTATIVE RULING

\r\n\r\n

\r\n\r\n\r\n \r\n \r\n \r\n \r\n
\r\n

DO\r\n WOO KIM, et al.

\r\n

\r\n

vs.

\r\n

\r\n

JOON\r\n CHUL PARK, et al.

\r\n

\r\n

\r\n Defendants.

\r\n
\r\n

Case No.: \r\n 19STCV44758

\r\n

(Related\r\n to: 19STCP02628; 19STCP04605; 19STCV16827 \r\n

\r\n

\r\n

\r\n

\r\n

Hearing\r\n Date: August 31, 2021

\r\n
\r\n\r\n

\r\n\r\n

Defendants’ motion for a new trial is DENIED.

\r\n\r\n

\r\n\r\n

On 10/5/2020, Do Woo Kim, Do Rim Kim, and the Wilton\r\nKorean Presbyterian Church in Los Angeles filed an amended second amended\r\ncomplaint (SAC)[1]\r\nagainst Joon Chul Park, Mary S. Cho, Jong Soon Cho, Hyun Jong Han, Marian K.\r\nLee aka Kyung Mi Lee, Young Shin Yoon, Joon Chul Park, Un Young Kim, Jonathan\r\nKim, James Kim, and Sharon Kyoung Ok, alleging: (1) declaratory\r\nrelief—injunctive relief; (2) conversion; (3) negligence; (4) negligent\r\ninfliction of emotional distress; and (5) intentional infliction of emotional\r\ndistress.

\r\n\r\n

\r\n\r\n

From 5/24/2021 to 6/7/2021, a bench trial was conducted.

\r\n\r\n

\r\n\r\n

On 7/26/2021, the Court issued its final statement of\r\ndecision and ruled in favor of Plaintiffs.

\r\n\r\n

\r\n\r\n

Now, Defendants move for a new trial.

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Legal\r\nStandard

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\r\n\r\n

A motion for new trial is a creature of statute; accordingly,\r\nif the trial court grants such relief without conforming to the statutory\r\nprocedures, the order will be void as an excess of jurisdiction.¿(Neal v. Montgomery Elevator Co.¿(1992) 7 Cal.App.4th 1194, 1198.)¿Section 657 only permits a new trial on seven\r\ngrounds: (1) irregularity in the proceedings of the court, jury or adverse\r\nparty, or any order of the court or abuse of discretion by which either party\r\nwas prevented from having a fair trial; (2) misconduct of the jury; (3)\r\naccident or surprise, which ordinary prudence could not have guarded against;\r\n(4) newly discovered evidence; (5) excessive or inadequate damage; (6)\r\ninsufficiency of the evidence to justify the verdict or other decision, or the\r\nverdict or other decision is against law; and (7) error in law, occurring at\r\nthe trial and excepted to by the party making the application.¿ Irregularities in the proceedings under section\r\n657 refers to matters which appellant cannot fully present by exceptions taken\r\nduring the¿progress of the trial, and which must\r\ntherefore, appear by affidavits.¿(Gibbons v. Los Angeles\r\nBiltmore Hotel Co.¿(1963) 217¿Cal.¿App. 2d 782, 791.)¿Where the error can be\r\ncalled to the direct attention of the court at the time the error occurs, such\r\nerror does not constitute an irregularity under section 657. (Id.)¿¿

\r\n\r\n

\r\n\r\n

Discussion\r\n

\r\n\r\n

\r\n\r\n

Defendants move for a new trial\r\n“based on the following newly discovered evidence, which Defendants could not\r\nhave discovered and produced at the trial: (i) the minutes of the regular\r\nsession meeting dated June 15, 2014; (ii) the testimony of Hyun Woo Shin\r\nregarding the purported bylaws dated January 15, 2010; and (iii) the video\r\nrecording of a regular session meeting held on April 28, 2019.” (Motion, 3:\r\n24-28.)

\r\n\r\n

\r\n\r\n

The trial court may “grant a motion for a new trial where the moving party\r\nhas discovered new, material evidence which could not, with reasonable\r\ndiligence, have been discovered and produced at trial.” (Sherman v. Kinetic\r\nConcepts, Inc. (1998) 67 Cal.App.4th 1152, 1153-54.) The essential elements\r\nwhich must be established are (1) the evidence is newly discovered; (2)\r\nreasonable diligence has been exercised in its discovery and production; and\r\n(3) the evidence is material to the movant's case.

\r\n\r\n

\r\n\r\n

The Court\r\naddresses each piece of evidence raised by Defendants in turn.

\r\n\r\n

\r\n\r\n

As for the\r\nBook minutes, Defendants argue that the Minutes Book was in the exclusive\r\npossession and control of Do Rim Kim prior to trial. While the Book was\r\nproduced by Do Rim Kim’s testimony at trial, “[s]ince the Book was introduced\r\nin the middle of the trial, Defendants did not have adequate time to review\r\nit.” (Motion, 4: 6-7.) Defendants contend that the minutes dated 6/15/14\r\ninclude a resolution to establish a board of directors, and that this refutes\r\nDo Rim Kim’s testimony that the board was instituted at the 1/10/2010 board\r\nmeeting.

\r\n\r\n

\r\n\r\n

In\r\nopposition, Plaintiffs contend that Defendants had more than two years to\r\nprocure the minutes in discovery, and note that Defendants did not request more\r\ntime to review the Book during trial, nor did they request a continuance of the\r\ntwo week trial.

\r\n\r\n

\r\n\r\n

The Court\r\nagrees with Plaintiffs. By Defendants own admission, the Book was produced during\r\ntrial, was copied that evening it was first discussed, and was available\r\nfor review. While Defendants may argue they had insufficient time, Defendants\r\nat no time raised this issue with the Court. Moreover, Defendants have not\r\nadequately explained why they did not procure the full Book of Minutes through\r\ndiscovery at any point prior to trial given that their knowledge that Minute\r\nBook existed. Defendants contend that it was in exclusive control of Do Rim\r\nKim, but do not present any argument that the Book was intentionally withheld\r\nby any party. Taken together, Plaintiffs have not presented sufficient evidence\r\nto show that the evidence is newly discovered (since it was made available during\r\ntrial) or that reasonable diligence was exercised in its discovery (since\r\nDefendants have not provided any explanation as to why they did not move to\r\ndiscover it at an earlier date.) (Sherman, supra, 67 Cal.App.4th at\r\np. 1153-54.)

\r\n\r\n

\r\n\r\n

As for the testimony of Hyon Woo\r\nShin, Defendants argue that he was not called as a trial witness because he\r\ncould not be found to personally serve a trial subpoena. Defendants contend\r\nthat he was an associate pastor at Wilton Church and that they are “informed\r\nand believe that Shin has personal knowledge as to the bylaws dated January 15,\r\n2010.” (Motion, 4:28-5:2.) The only explanation provided for why he was not\r\ncalled earlier is “[a]fter the trial, Defendants have now discovered where he\r\nresides.” (Motion, 5:1-2.)

\r\n\r\n

\r\n\r\n

The Court is unpersuaded. As\r\nPlaintiffs noted in opposition, Hyon Woo Shin was known to Defendants at the\r\ntime of trial and no attempts were made to inform the Court that a witness was\r\nunavailable. (Motion, 7:17-18.) What’s more, Defendants have not provided any\r\ndetail of the efforts they undertook to locate Hyon Woo Shin during or\r\nprior to trial, nor have they explained how or why they were able to discover\r\nwhere he resides after trial. Accordingly, Plaintiffs have not set forth\r\nsufficient evidence to show reasonable diligence was exercised to locate Hyon\r\nWoo Shin prior to trial. (Sherman, supra,\r\n67 Cal.App.4th at p. 1153-54.)

\r\n\r\n

\r\n\r\n

Finally, as to the video recording of a regular session\r\nmeeting held on April 28, 2019, Defendants argue that “[t]his video recording\r\nwas not available at the trial because it was accidentally deleted. It is now\r\nrecovered and will presented at a new trial.” (Motion, 5: 9-10.) Just as with the location\r\nof Hyon Woo Shin, Defendants’ explanation of how this evidence was recovered is\r\nwoefully inadequate. Defendants have not set forth any evidence to show the\r\nefforts undertaken to recover this video prior to trial or how the video was\r\nactually recovered. Accordingly, Defendants have not shown that the video could\r\nnot have been recovered prior to trial with reasonable diligence. (Sherman, supra, 67 Cal.App.4th at p.\r\n1153-54.)

\r\n\r\n

\r\n\r\n

Defendants have failed to\r\nshow that any of the evidence presented here could not have been discovered\r\nwith reasonable diligence and produced at trial. (Sherman, supra,\r\n67 Cal.App.4th at p. 1153-54.)

\r\n\r\n

\r\n\r\n

\r\n\r\n

Based on the foregoing, Defendants’\r\nmotion for a new trial is denied.

\r\n\r\n

\r\n\r\n

\r\n\r\n

It is so ordered.

\r\n\r\n

\r\n\r\n

Dated: August \r\n, 2021

\r\n\r\n

\r\n\r\n

Hon. Jon R.\r\nTakasugi\r\n Judge of the\r\nSuperior Court

\r\n\r\n

\r\n\r\n

\r\n\r\n

Parties who intend to submit on this tentative must\r\nsend an email to the court at smcdept17@lacourt.org\r\nby 4 p.m. the day prior as directed by the instructions provided on the court\r\nwebsite at www.lacourt.org. If a party submits\r\non the tentative, the party’s email must include the case number and must\r\nidentify the party submitting on the tentative. \r\nIf all parties to a motion submit, the court will adopt this\r\ntentative as the final order. If the department\r\ndoes not receive an email indicating the parties are submitting on the\r\ntentative and there are no appearances at the hearing, the motion may be placed\r\noff calendar.

\r\n\r\n

\r\n\r\n

Due to Covid-19, the court is\r\nstrongly discouraging in-person appearances. Parties, counsel, and court reporters present\r\nare subject to temperature checks and health inquiries, and will be denied\r\nentry if admission could create a public health risk. The court encourages the parties wishing to\r\nargue to appear via L.A. Court Connect. \r\nFor more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult\r\ntimes is appreciated.

\r\n\r\n

\r\n\r\n
\r\n\r\n
\r\n\r\n\r\n\r\n
\r\n\r\n

[1]\r\nPlaintiffs’ initial SAC was filed in error, given that they had not obtained\r\nleave of court to file an amended complaint. The parties stipulated to allow\r\nPlaintiffs to file the SAC again, and the Court instructed Plaintiffs to label\r\nthe renewed SAC as the Amended Second Amended Complaint to lessen confusion.

\r\n\r\n

\r\n\r\n
\r\n\r\n
"

Case Number: 19STCV44758    Hearing Date: April 23, 2021    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

DO WOO KIM, et al.

vs.

JOON CHUL PARK, et al.

Defendants.

Case No.: 19STCV44758

(Related to: 19STCP02628; 19STCP04605; 19STCV16827

Hearing Date: April 23, 2021

Plaintiffs’ motion for summary adjudication of the first cause of action is DENIED.

On 10/5/2020, Do Woo Kim, Do Rim Kim, and the Wilton Korean Presbyterian Church in Los Angeles filed an amended second amended complaint (SAC)[1] against Joon Chul Park, Mary S. Cho, Jong Soon Cho, Hyun Jong Han, Marian K. Lee aka Kyung Mi Lee, Young Shin Yoon, Joon Chul Park, Un Young Kim, Jonathan Kim, James Kim, and Sharon Kyoung Ok, alleging: (1) declaratory relief—injunctive relief; (2) conversion; (3) negligence; (4) negligent infliction of emotional distress; and (5) intentional infliction of emotional distress.

While Plaintiffs technically filed a motion for summary judgment, Plaintiffs apparently only seek summary adjudication of the first cause of action. (“ Plaintiff/Cross-Defendant [sic] will move this court…for an order granting Plaintiff's [sic] motion for summary judgment for Plaintiffs' first cause of action for declaratory Judgement [sic] cause of action as alleged in a related case a complaint (WOO vs. Park) LASC Case. No. 19STCV44758 as well as the lead case LASC Case No. 19STCV16827. (‘CHURCH V. HAN’) on the grounds that there are no triable issues of material fact and thus Plaintiff [sic] is entitled to judgment as a matter of law”.)

Accordingly, the Court treats this as a motion for summary adjudication and limits its analysis to the declaratory relief cause of action alone.

Factual Background

This is one of four cases related to a corporate governance dispute that arose among the directors of Church. The lead case was initiated by the Kim Brothers; they allege that they are the true members of Church’s board and are correspondingly authorized to act on Church’s behalf. (Kim Brothers’ First Amended Complaint (“KBFAC”) ¶¶ 33, 35.) They further allege that an opposing group of directors had a sham election on June 23, 2019 which did not lead to the installation of a new board of directors. (KBFAC ¶ 34.)

Discussion

Here, Plaintiffs seek a judicial determination that the 2010 Bylaws were valid, that the subsequent 6/23/2019 election electing Rim was properly conducted, and that the 6/23/2019 election electing Han’s 6/23/2019 was invalid.

First, Plaintiffs have not submitted sufficient evidence to allow this Court to determine whether the 2010 Bylaws were properly adopted. Their motion’s section entitled “the Bylaws” which discusses the adoption of the Bylaws consists only of:

1. On 3-26,2006, CHURCH decided to adopt the bylaw. Pastor Steve was to draft the bylaw. Pastor Steve prepared the bylaw. See Exhibit I Old Bylaws. (“OLD BYLAW”). See also Resolution.

2. In 2010, CHURCH adopted the bylaw (“OLD BYLAW”). However, HAN alleges that this bylaw was not properly adopted. See Exhibit I. See also Cross Complaint.

(Motion, 2:8-12.)

Plaintiffs’ Separate Statement does not contain any additional evidence on this issue. Accordingly, the only evidence Plaintiffs have cited on this issue establishes that new bylaws were drafted and adopted, and that Defendant Han alleges these bylaws were not properly adopted. This evidence does not speak to the process by which the bylaws were adopted. As a result, the Court does not have before it any evidence that would show the manner in which the Bylaws were adopted, and thus Plaintiffs have not met their burden to show the Bylaws were properly adopted.

Next, the Court turns its analysis to whether or not the elections were properly conducted under the California Corporations Code.

California Corporations Code section 9411(c) provides:

  
(a) Subject to the provisions of this chapter, regular and special meetings of members shall be called, noticed and held as may be ordered by the board
 
b) Special meetings of members for any lawful purpose may be called by the board or the chairman of the board or the president. In addition, special meetings of members for any lawful purpose may be called by 5 percent or more of the members.
 
California Corporations Code section 9410 provides:
 

(a) In the absence of a contrary provision in the articles or bylaws, the provisions of this chapter shall apply to any regular or special meeting of members or obtaining approval of members (Section 5034) or approval of a majority of members (Section 5033). The articles or bylaws may provide any reasonable method of calling, noticing, and holding such meetings or obtaining such approvals.

 
 Here, Plaintiffs submitted evidence that on 5/26/2019 Han submitted a notice of special meeting to demand an election to amend the bylaws and select the Board of Directors. (Exh. E.) Plaintiffs also note that under Corporations Code section 9411, subdivision (b), special meetings may also be called by the chairman of the board alone. Plaintiffs submitted evidence that notice of this special meeting was provided by 6/7/2019, within 20 days of Han’s demand. (See Exs. F1-F2.) 
 
 However, while Plaintiff claim that Han then served a “fraudulent and invalid Notice of Election,” the exhibit identified (i.e., Exhibit E) does not show this. Exhibit E is Han’s original demand for election. The Court could not locate the purportedly invalid Notice of Election among Plaintiffs’ papers. 
 

Moreover, while Plaintiffs claim that Han’s notice was served “to only two people and not the CHURCH membership and is therefore invalid,” Plaintiff has not submitted proof to establish this. Plaintiff cites to Rim Decl., ¶ 35, which corresponds to Exhibit Q2a. While the Court could not locate an Exhibit Q2a, the Court could locate an Exhibit Q2. However, Exhibit Q2 contains copies of election ballots, and in no way establishes the manner in which Han’s notice of election was served. Out of diligence, the Court cross-referenced ¶ 35 in a separate declaration submitted by Rim (though no distinction was made between these declarations in Plaintiffs’ moving papers), and there, the only support provided for the contention that Han only served two people was a citation to “Exhibit 1 of Plaintiff’s Declaration of You Chung Kim See Exhibit B2.” The Court could not locate any declaration from any individual named You Chung Kim, and no such declaration was named in Plaintiff’s submitted Exhibit List. Exhibit B2 is a declaration from Han in support of his temporary restraining order application, and thus is unrelated to establishing the manner in which Han’s notice of election was served.

 
 Plaintiffs also claim that after they decided to advance the election date from July 28, 2019 to June 22, 2019, they sent adequate notice of this advancement. Plaintiffs claim that Rim contacted each name appearing on Church records via phone and text message to provide notice, but, again, the exhibit referenced shows no such thing. The cited provision, “Rim Decl., ¶ 37” corresponds to Exhibit Q4, which apparently is a certification of the June 22, 2019 election results.  

Accordingly, the Court does not have before it adequate evidence to support a reasonable inference that Plaintiffs complied with notice requirements under the California Corporations Code. (See Corp. Code § 5511(a).)

Based on the foregoing, Plaintiffs’ motion for summary adjudication is denied.

It is so ordered.

Dated: April , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.


[1] Plaintiffs’ initial SAC was filed in error, given that they had not obtained leave of court to file an amended complaint. The parties stipulated to allow Plaintiffs to file the SAC again, and the Court instructed Plaintiffs to label the renewed SAC as the Amended Second Amended Complaint to lessen confusion.

Case Number: 19STCV44758    Hearing Date: March 23, 2021    Dept: 17

Off Calendar.Defendants filed a notice of withdrawal of the demurrer on 2/24, but failed to remove the motion from the calendar

Case Number: 19STCV44758    Hearing Date: February 01, 2021    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

DO WOO KIM, et al.

vs.

JOON CHUL PARK, et al.

Defendants.

Case No.: 19STCV44758

(Related to: 19STCP02628; 19STCP04605; 19STCV16827

Hearing Date: February 1, 2021

Plaintiffs’ motion to set aside the 8/6/2020 dismissal is GRANTED.

On October 5, 2020, Do Woo Kim, Do Rim Kim, and the Wilton Korean Presbyterian Church in Los Angeles filed a second amended complaint (SAC) against Joon Chul Park, Mary S. Cho, Jong Soon Cho, Hyun Jong Han, Marian K. Lee aka Kyung Mi Lee, Young Shin Yoon, Joon Chul Park, Un Young Kim, Jonathan Kim, James Kim, and Sharon Kyoung Ok, alleging: (1) declaratory relief—injunctive relief; (2) conversion; (3) negligence; (4) negligent infliction of emotional distress; and (5) intentional infliction of emotional distress.

Now, Plaintiffs Do Rom Kim and Wilton Presbyterian Church (collectively, Plaintiffs) move the Court to set aside their accidental dismissal of Plaintiff’s second cause of action.

Legal Standard

Code of Civil Procedure (CCP) section 473, subdivision (b) provides:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

The mandatory relief provision of Code of Civil Procedure section 473 subs. (b) provides, in part:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk..., or (2) resulting default judgment or dismissal entered....

Discussion

Plaintiffs contend that the dismissal of their second cause of action was based on attorney error. Specifically, Plaintiffs explain:

On 8/6/2020, attorney David Y. Nakatsu, in an effort to simplify the case dismissed certain parties as to the 2nd, 3rd, 4th and 5th causes of action. The 2nd cause of action for Conversion was not meant to be included on this list as it is the heart of case 19STCV44758 before the court. Due to attorney error, this attorney included the 2nd cause of action on his request for dismissal by accident.

This error was discovered in September, and counsel attempted to file a notice of errata on 9/21/20. However, a notice of errata is insufficient to reverse an entered dismissal of a cause of action. Counsel discovered that the notice of errata had been rejected on 11/27/2020, and immediately prepared this CCP 473, subdivision (b) motion.

Plaintiffs’ motion was accompanied by a corrected copy of the Request for Dismissal. Plaintiff also submitted a declaration from Mr. Nakatsu in which he takes responsibility for the error, and explains that he accidentally included the second cause of action in his request for dismissal, despite only having intended to dismiss the third, fourth, and fifth causes of action.

Based on the submitted evidence, the Court is persuaded that the dismissal of the second cause of action was the result of a reasonable mistake. (CCP § 473(b).) Accordingly, the Court will exercise its discretion to set aside the 8/6/2020 dismissal. Given that Defendants currently have a pending demurrer, Defendants’ request that they be able to file an additional demurrer to the newly reinstated second cause of action is granted. Plaintiffs are to file the corrected Request for Dismissal immediately.

It is so ordered.

Dated: January , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Case Number: 19STCV44758    Hearing Date: October 05, 2020    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

DO WOO KIM, an individual; DO RIM KIM, an individual; THE WILTON KOREAN PRESBYTERIAN CHURCH IN LOS ANGELES, a California nonprofit religious corporation,

Plaintiffs,

vs.

JOON CHUL PARK, an individual; MARY S. CHO, an individual; JONG SOON CHO, an individual; HYUN JONG HAN, an individual; MARIAN K. LEE, AKA Kyung Mi Lee, an individual; YOUNG SHIN YOON, an individual; JOON CHUL PARK, an individual; UN YOUNG KIM, an individual; JONATHAN KIM, an individual; JAMES KIM, an individual, SHARON KYOUNG OK, an individual, & DOES 1 through 50, inclusive,

Defendants.

Case No.: 19STCV44758 

Hearing Date: October 5, 2020

Defendants’ demurrer and motion to strike the SAC is MOOT.

The instant case is related to case numbers 19STCV16827, 19STCP04605, and 19STCP02628. The lead related case is number 19STCV16827.

On December 11, 2019, Plaintiffs Do Woo Kim, Do Rim Kim, and The Wilton Korean Presbyterian Church in Los Angeles (collectively “Plaintiffs”) filed the instant case against Defendants Joo Chul Park, Mary S. Cho, Jong Soon Cho, Young Shin Yoon, Hyun Jong Han, Marian K. Lee, Buchanan & Patterson, LLP, and Does 1 – 50.

On January 6, 2020, Plaintiffs filed a First Amended Complaint (“FAC”) against the same defendants. The FAC alleges six causes of action: (1) declaratory judgment-injunctive relief; (2) conversion; (3) assault; (4) battery; (5) intentional infliction of emotional distress; and (6) order dissolving church.

On April 9, 2020, Defendants Joo Chul Park, Mary S. Cho, Jong Soon Cho, Young Shin Yoon, Hyun Jong Han, and Marian K. Lee (collectively “Defendants”) filed a demurrer with motion to strike punitive damages to the FAC.

On April 16, 2020, Plaintiffs filed a Second Amended Complaint (“SAC”). The SAC alleges six causes of action: (1) declaratory judgment-injunctive relief; (2) conversion; (3) negligent; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; and (6) order dissolving church.

On April 27, 2020, Defendants filed an amended demurrer to the SAC. Defendants, however, did not file an amended motion to strike the SAC.

On June 12, 2020, Plaintiffs filed a Motion for Leave to File a SAC.

On August 5, 2020, Plaintiffs filed a request for dismissal as to Defendant Buchanan & Patterson, LLP. Dismissal was entered on August 6, 2020.

On August 6, 2020, Plaintiffs filed a request for dismissal. The request indicate dismissal is without prejudice as to “All Plaintiffs against all Defendants as to CAUSE OF ACTION SIX DISOLUTION [sic] ONLY.” Dismissal was entered on August 11, 2020.

Also, on August 6, 2020, Plaintiffs Do Rim Kim and Wilton Presbyterian Church in Los Angeles filed a request for dismissal as to the second, third, fourth, and fifth causes of action against all defendants. Plaintiff Do Woo Kim did not join in the dismissal. Dismissal was entered on August 11, 2020.

On August 19, 2020, the Court held a hearing on the demurrer and motion to strike. At the hearing, the parties stipulated to allow Plaintiffs to file a SAC. The Court accepted the stipulation of counsels. The Court ordered Plaintiffs to refile the corrected SAC within 10 days. The Court further continued the hearing date on the demurrer and motion to strike to October 5, 2020. The Court vacated the Motion for Leave to Amend SAC.

On August 31, 2020, Plaintiffs filed and served the operative SAC. The operative SAC alleges six causes of action against Defendants Joon Chul Park, Mary S. Cho, Jong Soon Cho, Hyun Jong Han, Marian K. Lee aka Kyung Mi Lee, Young Shin Yoon, Joon Chul Park (repetitive), Un Young Kim, Jonathan Kim, James Kim, Sharon Kyoung Ok, and Does 1 through 50. The six causes of action are: (1) declaratory judgment-injunctive relief; (2) conversion; (3) negligence; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; and (6) order dissolving church.

On September 2, 2020, Defendants Hyun Jong Han, Yong Chul Cho, Dae Won Park, and Nee Don Chu filed a cross-complaint for declaratory and injunctive relief against Do Woo Kim, Do Rim Kim, Hae Hwan Cho, and Roes 1 through 25.

On September 3, 2020, Defendants Hyun Jong Han, Yong Chul Cho, Dae Won Park, and Nee Don Chu filed a First Amended Cross-Complaint against Do Woo Kim, Do Rim Kim, Hae Hwan Cho, and Roes 1 through 25.

On September 21, 2020, Plaintiffs filed a Notice of Errata re: Request for Dismissal filed on August 6, 2020—which was entered on August 11, 2020. Plaintiffs explain that, due to inadvertent error and mistake, Plaintiffs added a request to dismiss the second cause of action, i.e., conversion. The second cause of action was not meant to be dismissed. Therefore, only the third, fourth, and fifth causes of action were meant to be dismissed.

Legal Standards

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code of Civ. Proc., § 437.) A motion to strike must be accompanied by a meet and confer declaration in compliance with Code of Civil Procedure section 435.5.

Before filing a demurrer or motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading sought to be stricken or demurred to, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer and motion to strike. (See Code of Civ. Proc. §§ 430.41, 435.5.)

Factual Background

This action arises out of a dispute between The Wilton Korean Presbyterian Church in Los Angeles’s (“Church”) board of directors and all defendants. (SAC ¶ 18.) Plaintiffs allege that Defendant Un Young Kim holds title to two of Church’s properties located at 4938 Maplewood Ave., Los Angeles, CA 90004 and 4843 Rosewood Ave., Los Angeles, CA 90004. (SAC ¶ 30.) Plaintiffs allege that Un Young Kim, Johnathan Kim, and James Kim hid the properties from Church and refused to transfer titles back to Church. (SAC ¶¶ 31-32.) Plaintiffs allege that all defendants slandered title to the Church’s properties, converted and misused and/or misappropriated the Church’s funds. (SAC ¶¶ 34-35.)

Discussion

As a preliminary matter, except for Plaintiff Do Woo Kim, Plaintiffs Do Rim Kim and Church dismissed their second, third, fourth, and fifth causes of action against Defendants. Dismissal was entered on August 11, 2020. The Court notes Plaintiffs filed a Notice of Errata on September 21, 2020 seeking to remove the second cause of action from their request for dismissal. However, this is an improper procedure for relief based on counsel’s mistake or inadvertence. Additionally, Plaintiffs requested dismissal of their sixth cause of action for order dissolving church against all defendants. Dismissal was entered on August 11, 2020. Thus, the operative SAC’s sixth cause of action is impermissible as against the moving Defendants.

The remaining causes of action in this demurrer are numbers three, four, and five by Plaintiff Do Woo Kim (“Woo”) against Defendants.

The procedural history of the instant case is worth discussion. Here, Plaintiffs improperly filed a first SAC without leave of court on April 16, 2020. Defendants filed the instant amended demurrer on April 27, 2020. Plaintiffs and Defendants filed their respective oppositions and reply on August 6, 2020, and August 10, 2020. Subsequently, on August 19, 2020, the Court, by stipulation of the parties, allowed Plaintiffs to file a renewed second SAC. The second operative SAC was filed on August 31, 2020. To date, no renewed demurrer or motion to strike was filed.

Pursuant to Code of Civ. Proc., § 430.40, subd. (a), “[a] party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties.” “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.”

Since Defendants did not file a renewed demurrer and motion to strike to the superseding and operative SAC, Defendants’ demurrer and motion to strike filed on April 27, 2020 and April 9, 2020, respectively, is moot.

Additionally, Defendants are required to meet and confer with Plaintiffs, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer and motion to strike. (See Code of Civ. Proc. §§ 430.41, 435.5.) Defendants must also file a declaration stating their meet and confer efforts. (Code of Civ. Proc. § 430.41(3), 435.5(a)(3).) Defendants here, however, did not file a declaration pursuant to sections 430.41 and 435.5 regarding meet and confer efforts subsequent to Plaintiffs’ operative SAC.

Based on the foregoing, Defendant’s demurrer and motion to strike is moot.

It is so ordered.

Dated: October ___, 2020

Hon. Jon R. Takasugi

Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Case Number: 19STCV44758    Hearing Date: August 19, 2020    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

DO WOO KIM, et al.,

Plaintiffs,

vs.

JOON CHUL PARK, et al.,

Defendants.

Case No.: 19STCV44758

Hearing Date: August 19, 2020

The demurrer and motion to strike are CONTINUED pending the resolution of Plaintiffs’ motion for leave to file a second amended complaint.

On December 11, 2019, Plaintiffs Do Woo Kim, Do Rim Kim, and the Wilton Korean Presbyterian Church in Los Angeles (collectively, “Plaintiffs”) filed their complaint against Defendants Joon Chul Park, Mary S. Cho, Jong Soon Cho, Young Shin Yoon, Hyun Jong Han, Marian K. Lee, and Buchanan & Patter, LLP (collectively, “Defendants.”)

On January 6, 2020, Plaintiffs filed their first amended complaint (“FAC”) against Defendants for: (1) declaratory judgment-injunctive relief; (2) conversion; (3) assault; (4) battery; (5) intentional infliction of emotional distress; and (6) order dissolving church.

On April 9, 2020, defendants Joon Chul Park, Mary S. Cho, Jong Soon Cho, Young Shin Yoon, Hyun Jong Han, and Marian K. Lee (collectively, “Demurring Defendants”) demurred to the FAC.

On April 16, 2020, Plaintiffs filed their second amended complaint (“SAC”) against Defendants. Plaintiff also brought the SAC against two new defendants, Jonathan Kim and James Kim. Plaintiffs allege: (1) declaratory judgment-injunctive relief; (2) conversion; (3) negligence; (4) negligent infliction of emotional distress; (5) intentional infliction of emotional distress; and (6) order dissolving church.

On April 27, defendants Joon Chul Park, Mary S. Cho, Jong Soon Cho, Young Shin Yoon, Hyun Jong Han, and Marian K. Lee (collectively, “Demurring Defendants”) again demurred. They also filed a motion to strike.

On June 12, 2020, Plaintiffs filed a motion for leave to file a SAC (“Motion to Amend.”) Plaintiffs seek to: (1) add defendants James Kim and Jonathan Kim; (2) delete causes of action in the FAC for assault and battery; and (3) add causes of action to the SAC for negligence and negligent infliction of emotional distress. The Motion to Amend is scheduled for February 01, 2021.

On August 6, 2020, Plaintiffs dismissed Defendant Buchannan & Patterson, LLP. On August 11, Plaintiffs dismissed their sixth cause of action for order dissolving church as to all Defendants.

Legal Standard

I. Demurrer for Sufficiency

Demurring Defendants demur to the SAC under Code of Civil Procedure section 430.10(e) on the grounds it fails to state facts sufficient to constitute causes of action.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally, with a view to substantial justice between the parties. (Code Civ. Proc. § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at 747.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872.)

II. Demurrer for Uncertainty

Demurring Defendants demur to the SAC under Code of Civil Procedure section 430.10(f) on the grounds it is uncertain.

A demurrer to a pleading lies where the pleading is uncertain. (Code Civ. Proc. §430.10(f).) “Uncertain” includes ambiguous and unintelligible. (Id.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; see also Code Civ. Proc. §430.10(e).) Moreover, “[a] special demurrer should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643.)

Discussion

As an initial matter, the court discusses the implication of Plaintiffs filing their SAC without a court order.

A party may amend its pleading once without leave from the court. A party may do so before the answer or demurrer is filed, or after a demurrer is filed but before it is heard, if the amended complaint is filed and served no later than the date for filing an opposition to demurrer. (Code Civ. Proc. § 472(a).)

Plaintiffs filed their complaint on December 11, 2019. On January 6, 2020, before any defendant answered or demurred to the complaint, Plaintiffs filed their FAC. In filing their FAC, Plaintiffs exhausted their ability to amend their FAC without leave from the court. That is, any subsequent amendment to the FAC requires court approval. (Leader v. Health Industries of America, Inc. Despite not having court approval, Plaintiffs filed their SAC, the subject of Demurring Defendants’ demurrer. Two months later, on June 22, 2020, Plaintiffs filed their Motion to Amend, seeking to file their SAC and thereby asking the court for leave to amend their FAC. The court has yet to hear Plaintiffs’ Motion to Amend. As such, there has been no analysis as to whether Plaintiffs may file their SAC.

Generally, “courts should be liberal in allowing amendments to pleadings in furtherance of justice when they may be authorized without prejudice to the substantial rights of others.” (Bank of America Nat. Trust & Savings Ass'n v. Goldstein Given this great liberality in granting amendments, the court finds it appropriate to first analyze Plaintiffs’ Motion to Amend before ruling on Demurring Defendants’ demurrer to the SAC.

Accordingly, Demurring Defendants’ demurrer and motion to strike are continued pending the resolution of Plaintiffs’ Motion to Amend.

It is so ordered.

Dated: August 19, 2020

Hon. Jon R. Takasugi

Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

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