On 06/01/2018 EDEN HILL MISSION filed a Contract - Professional Negligence lawsuit against DAVID S KIM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
EDEN HILL MISSION
THE MALONEY FIRM APC
STAR ESTATE CORPORATION
KROPFF JAMES B.
MALONEY PATRICK M.
SMITH GREGORY M.
DANIEL E. PARK LAW CORPORATION
JK LAW FIRM APC
PARK DANIEL E.
CIANCI CHRISTOPHER C.
PARK MOSES MOON
DOES 1 THROUGH 10
KIM DAVID S.
DAVID S. KIM & ASSOCIATES
MALONEY PATRICK M. ESQ.
MALONEY PATRICK MERRITT ESQ.
MALONEY PATRICK M ESQ.
LEE HENRY MIN
KIM DAVID S
KIM DAVID S ESQ.
FUSON TODD ANDREW
FUSON TODD A
FUSON TODD A. ESQ.
KIM DAVID S. ESQ.
MALONEY PATRICK M ESQ.
8/5/2020: Request for Judicial Notice
3/5/2020: Ex Parte Application - EX PARTE APPLICATION PLAINTIFFS' EX PARTE APP. TO CONT. TRIAL AND RELATED DATES; CONT. MSA HEARING
2/6/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS) OF 02/06/2020
10/28/2019: Opposition - OPPOSITION PLAINTIFFS / CROSS-DEFENDANTS EDEN HILL MISSION AND JEFF KERN'S OPPOSITION TO DEFENDANT/CROSS-COMPLAINT REQUEST FOR ENTRY OF DEFAULT
6/18/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR RECONSIDERATION)
5/30/2019: Opposition - OPPOSITION TO DEFENDANTS' MOTION FOR RECONSIDERATION AND/OR CLARIFICATION OF COURT'S RULING OVERRULING THE DEMURRER; REQUEST FOR SANCTIONS OF $5,400; DECLARATION OF GREGORY M. SMITH
5/3/2019: Cross-Complaint - CROSS-COMPLAINT DAVID S. KIM AND DAVID S. KIM & ASSOCIATES CROSS-COMPLAINT FOR EQUITABLE INDEMNITY AND IMPLIED INDEMNITY
5/7/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY...)
4/25/2019: Opposition - OPPOSITION PLAINTIFFS NOTICE OF NON-OPPOSITION TO PLAINTIFFS MOTION TO COMPEL DAVID S. KIMS RESPONSES TO REQUESTS FOR PRODUCTION RESERVATION ID: 911694571646
4/4/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10)) OF 04/04/2019
1/23/2019: Motion to Deem RFA's Admitted
11/16/2018: Request for Judicial Notice - Plaintiff's Request for Judicial Notice in Support of Opposition to Anti-Slapp Motion
12/3/2018: Order - Order Ruling Re: Special Motion to Strike Complaint pursuant to CCP Section 425.16 (Anti-SLAPP)
10/9/2018: Demurrer - without Motion to Strike -
11/8/2018: Minute Order - Minute Order (Case Management Conference)
11/16/2018: Opposition - Plaintiffs' Opposition to Anti-Slapp Motion
10/16/2018: Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion)
9/18/2018: PROOF OF SERVICE SUMMONS -
Hearing11/08/2021 at 10:00 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing10/28/2021 at 09:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
DocketObjection (OBJECTION TO PROPOSED JUDGMENT); Filed by Jeff Kern (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 24; Post-Mediation Status Conference - HeldRead MoreRead Less
Docketat 08:30 AM in Department 24; Trial Setting Conference - HeldRead MoreRead Less
DocketMinute Order ( (Post-Mediation Status Conference; Trial Setting Conference)); Filed by ClerkRead MoreRead Less
DocketRequest for Dismissal; Filed by David S. Kim (Cross-Complainant)Read MoreRead Less
DocketNotice of Ruling; Filed by Eden Hill Mission (Plaintiff); Jeff Kern (Plaintiff)Read MoreRead Less
Docketat 10:30 AM in Department 24; Hearing on Motion for Summary Judgment - Held - Motion GrantedRead MoreRead Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro TemporeRead MoreRead Less
DocketFirst Amended Complaint; Filed by Eden Hill Mission (Plaintiff); Jeff Kern (Plaintiff)Read MoreRead Less
DocketComplaint ((1st)); Filed by Eden Hill Mission (Plaintiff); Jeff Kern (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 24; Unknown Event TypeRead MoreRead Less
DocketNOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICERead MoreRead Less
DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Eden Hill Mission (Plaintiff); Jeff Kern (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGES FOR: 1. LEGAL MALPRACTICE, ETCRead MoreRead Less
Case Number: BC708515 Hearing Date: August 21, 2020 Dept: 24
Defendants David S. Kim and David S. Kim & Associates' motion for summary adjudication is GRANTED as to issues nos. 1, 2 and 4.
On June 1, 2018, Plaintiff Eden Hill Mission (“Eden Hill”) and Jeff Kern (“Kern”) (collectively, “Plaintiffs”) filed a complaint against Defendants David S. Kim (“Kim”), David S. Kim & Associates (the “Firm”) (collectively “Kim Defendants”), and Moses Moon Park (“Park”). The action arises out of a series of litigation over the control of Eden Hill, a non-profit religious organization. On December 5, 2018, the Court sustained Defendants’ demurrer to the First Amended Complaint as to the first and second causes of action with leave to amend and overruled it as to the third. On December 21, 2018, Plaintiffs filed a Second Amended Complaint (“SAC”), alleging 1) legal malpractice by Eden Hill against Kim Defendants; 2) breach of fiduciary duty by Eden Hill against Kim Defendants; and 3) malicious prosecution by Kern against Defendants.
The SAC alleges that Park and Plaintiffs have a long history of litigation. Eden Hill owns a wilderness property in San Bernardino National Forest, where it hosts religious ceremonies. In the early 2000s, Eden Hill underwent building projects, funded in part by Kern. Eden Hill hired Park as a part of these projects, and allowed him to live on the property. Kern suspected Park of embezzling funds, and evicted him. Park subsequently brought a case against Kern in 2004, which settled, but this only commenced the series of litigation.
In 2012, Defendants filed a lawsuit styled as Eden Hill Mission v. Kern, et al. San Bernardino County Superior Court (“SBCSC”) Case No. CIV DF1206578 (“the Underlying Suit”), purportedly brought by Eden Hill through the unanimous vote of Eden Hill’s newly elected board of directors. Kim Defendants represented “Eden Hill Mission” in the Underlying Suit. In this suit, Defendants, on behalf of Eden Hill, alleged that Kern was liable for breaches of duties owed to Eden Hill, and sued for declaratory relief to find that Eden Hill was controlled by certain individuals, not Kern, and that certain board elections in 2011-2012 were valid.
In 2015, Eden Hill filed a separate lawsuit against Park, styled Eden Hill v. Park, SBCSC Case No. CIV DS1511669 (the “Declaratory Relief Action”). This suit requested declaratory relief that Kern was the president and Director of Eden Hill, and Park was not an agent or officer of Eden Hill, and that the purported board elections in 2011-2012 were invalid. Default was taken in the Declaratory Relief Action. Kim Defendants appeared as counsel to Park in the declaratory relief action, despite claiming to represent Eden Hill in the underlying action.
In 2017, the underlying action proceeded to trial. The court held in its final judgment for Kern, finding that the by-laws offered into evidence by Park were forgeries and that the supposed officers and directors under his control were not validly elected. Post-trial, Eden Hill requested its client files from Kim Defendants, but Kim Defendants denied representing Eden Hill.
On April 24, 2019, Kim Defendants filed an answer to the SAC. On May 3, 2019, Kim Defendants filed a cross-complaint against Eden Hill, Kern, Patrick M. Maloney, Gregory M. Smith, The Maloney Firm APC, Daniel E. Park, Christopher C. Cianci, Daniel E. Park Law Corporation, Joshua Phelps, Charles Ludd, Jean Kwon, JK Law Firm APC, James B. Kropff, Star Estate Corporation, and Samuel Yu . The operative First Amended Cross-Complaint (“FACC”) maintains two causes of action for: 1) equitable indemnity; and 2) declaratory relief and equitable apportionment. Cross-Complainants dismissed Patrick M. Maloney, Gregory M. Smith, and The Maloney Firm from the CC on May 22, 2019.
On January 27, 2020, Kim Defendants filed the instant motion for summary adjudication of each cause of action. Kim Defendants notice four issues: 1) the First Cause of Action for Legal Malpractice against Kim Defendants, because the instant litigation was filed beyond the applicable statute of limitations; 2) the Second Cause of Action for Breach of Fiduciary Duty against Kim Defendants, because the instant litigation was filed beyond the applicable statute of limitations; 3) the Third Cause of Action for Malicious Prosecution against Kim Defendants, because the instant litigation was filed beyond the applicable statute of limitations; and 4) the Third Cause of Action for Malicious Prosecution against Kim Defendants, because Plaintiff cannot prove an essential element of the claim.
On August 5, 2020, Plaintiff filed an opposition. On August 14, 2020, Defendants filed a reply.
Summary Judgment Standard
A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP §437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See CCP §437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See CCP §437c(o)(2); Union Bank, supra, 31 Cal.App.4th at 583.)
In order to obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457.) “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” (Ibid.) “Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.” (See Mitchell, supra, 127 Cal.App.4th at 467.)
Until the defendant meets this evidentiary burden, the plaintiff has no burden to present evidence showing a triable issue of fact. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; see also Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940, citing Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [“[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff”].)
Requests for Judicial Notice
The Court grants both parties’ requests for judicial notice. (Evid Code § 452(d).)
Issues Nos. 1-2: Statute of Limitations and Malpractice
First, Kim Defendants present two nearly identical issues: whether the statute of limitations for malpractice claims applies to the first and second causes of action. Kim Defendants contend that it applies to both. Given the overlapping facts and law of these issues, the Court will address them together.
A legal malpractice action requires a plaintiff to plead and prove the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise, a breach of that duty, a proximate causal connection between the breach and the resulting injury, and actual loss or damage resulting from the attorney's negligence. (Charnay v. Cobert (2006) 145 Cal.App.4th 170.) Generally, an attorney has no professional obligation to nonclients and thus cannot be held liable to nonclients for the consequences of the attorney's professional negligence. (Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1294; Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523, 529 [“an attorney will normally be held liable for malpractice only to the client with whom the attorney stands in privity of contract, and not to third parties”].)
To allege a breach of fiduciary duty, a plaintiff must allege: 1) the existence of a fiduciary duty; 2) breach of that duty; and 3) damage caused by the breach. (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932.) An attorney client relationship creates a fiduciary duty on the part of the attorney to the client in the context of the representation. (See Charnay, supra, 145 Cal.App.4th at 182; Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.)
Pursuant to CCP section 340.6, legal malpractice claims must be brought either "one year after actual or constructive discovery, or four years after occurrence (the date of the wrongful act or omission), whichever occurs first." (Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 966.) These limitations periods are tolled during the times that: (i) the client has not sustained actual injury, (ii) the negligent attorney continues to represent the client, (iii) the attorney willfully conceals facts constituting the negligence, or (iv) the plaintiff is under a disability that restricts the plaintiff's ability to commence legal action. (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 567.) Claims sounded in legal malpractice are time barred under the one-year malpractice statute of limitations, including breach of fiduciary duty causes. (See Stoll v. Superior Court (1992) 9 Cal.App.4th 1362, 1364.)
Kim Defendants move against the legal malpractice/breach of fiduciary duty causes, claiming Kern, as a representative of Eden Hill, knew or should have known of Kim’s role purporting to represent Eden Hill in the underlying litigation that was filed in 2012. They argue that at that moment, the claim accrued. Defendants argue that there is no injury, but if there is, then the injury would have immediately been upon discovery. They also argue, in part, that the period was not tolled by continuing representation because there was never any representation in the first place.
This is largely a re-tread of the MJOP the Court considered in March. However, here, the Court has the benefit of not having to accept the factual allegations of the SAC as true if properly disputed by Defendants. Kim Defendants are now allowed to show that there was no representation, which has been the critical element in all of the prior written motions. Kim Defendants show evidence to meet their initial burden as to this point.
First, the Court agrees that an objectively reasonable person in Eden Hill’s position would have been put on notice of the malpractice (i.e. the misappropriation of Eden Hill’s name by Kim) immediately in 2012. Kern, as Eden Hill’s agent, had actual knowledge of the Kim Firm’s alleged wrongful in 2012 upon notice of the lawsuit. (SSMF 10.) Given he contends in the SAC that Park and his board were not the true representatives of Eden Hill, he would have immediately known of that Kim was falsely representing Eden Hill. This also shows immediate injury, since Eden Hill (and Kern) would have immediately began incurring costs for legal representation.
Kim Defendants argue that the tolling category for continuing representation does not apply since there was never any representation in the first place. Except in limited circumstances, the relationship can only be created by contract, express or implied. (Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729.) An attorney-client relationship is not created by the unilateral declaration of one party to the relationship. (Fox v. Pollack (1986) 181 Cal.App.3d 954, 959.) Nonclients, such as successor fiduciaries, intended named beneficiaries of an attorney's services or those to whom the risk of harm was foreseeable, may have standing to sue for legal malpractice. (Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523, 529.) When the evidence is undisputed, the question of whether an attorney-client relationship exists is one of law. (Responsible Citizens, supra, 16 Cal.App.4th at 1732–1733.)
Kim Defendants present evidence that the they represented one faction for control of Eden Hill led by Park and a group who had been elected as the Board of Directors. (SSMF 2.) The other faction was led by Kern and represented by The Law Offices of James B. Kropff. (SSMF 3.) Kim states that he never met with Kern, he nor his law firm never signed any retainer agreement with Kern, never gave Kern any legal advice, never did anything that would give Kern any reason to believe that he was his attorney. (SSMF 10; Kim Decl., ¶ 26.)
As noted, Kim Defendants present evidence that Eden Hill had knowledge of the purported malpractice in 2012, actual damages in 2012, and no continuing representation. The SAC does not allege that Kim willfully concealed facts constituting the negligence from Eden Hill or that Eden Hill, as a corporation, was under a disability that restricted its ability to commence an action. Thus, the above evidence is sufficient to shift the burden.
Plaintiffs attempt to dispute these facts by pointing to Kim’s declarations and assertions in the underlying case that he represented “Eden Hill Mission” through Kim’s declarations in the underlying suit. (See e.g. SSMF 1-3, 7, 10; Plaintiffs’ RJN 1-16.) Plaintiffs therefore conclude there is a dispute of fact over when the representation ended, since Kim admitted that he was representing “Eden Hill Mission” within the statutory period.
However, this fails provide substantial evidence in the context of this case, considering the undisputed allegations of the SAC and Defendants’ presented evidence. While facially, the declarations show that Kim declared that he represented “Eden Hill Mission,” this does not provide substantial evidence that he truly represented Eden Hill, but rather the Park faction in the underlying dispute, despite their use of the name Eden Hill Mission. This evidence is actually consistent with the Kim Defendants’ presented evidence to that end. Plaintiffs admit that the issue adjudicated in the underlying action was that Kim, and his ‘faction’ of alleged Eden Hill Mission board members led by Moses Park, had no standing to act on behalf of Eden Hill Mission. The Court agrees that it this point, Plaintiffs argument to the contrary is purely semantic, without substance. Thus, Plaintiffs fail to dispute Defendants’ presented evidence that there was no continuing representation tolling the statute of limitations. This also shows that there was no representation/fiduciary relationship, but that issue was not specifically noticed here.
Accordingly, Kim Defendants’ motion is GRANTED as to these issues.
Issue 3: Statute of Limitations and Malicious Prosecution
Kim Defendants argue that the cause is barred by CCP section 340.6, since the cause sounds in legal malpractice as it is based on Kim’s alleged professional misconduct. True, CCP section 340.6 applies to claims sounded in legal malpractice, including malicious prosecution.
(See Connelly v. Bornstein (2019) 33 Cal.App.5th 783, 793-799.) Kim and the Firm contend that the same logic discussed above applies and bars the cause of action. However, the applicability of the statute of limitations does not dictate when accrual of a separate claim occurs. For accrual, the essential elements must be sufficiently formed.
The elements of a claim for malicious prosecution include a prior action commenced by or at direction of defendant that lacked probable cause and was initiated with malice, coupled with a termination of the action in plaintiff's favor. (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 458.) The statute of limitations on a malicious prosecution cause of action commences to run upon entry of judgment in the prior action and continues to run to the date of filing the notice of appeal. (Connelly, supra, 33 Cal.App.5th at 790; see also Babb v. Superior Court (1971) 3 Cal.3d 841, 846; Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 457-458.) Simply put, the statute of limitations could not begin until all the essential elements of the cause of action were present, including the favorable termination element. Here, accrual did not occur until the judgment on June 2, 2017 at the earliest, as shown by the judicially noticeable facts. Under Kim Defendants logic, they would require Kern to file his suit immediately upon notice of the underlying suit in 2012. This does not make sense, since there can be no malicious prosecution claim before a favorable termination.
Applying the one year statute of limitations or the two year term, the cause of action was timely filed. At the earliest, the claim accrued on June 2, 2017. (SSMF 4.) This case was filed within one year on June 1, 2018. Therefore, Kim Defendants fail to meet their burden to show that the statute of limitations applies.
Accordingly, Kim Defendants’ motion is DENIED as to this issue.
Issue No. 4: Probable Cause
Kim Defendants attack the probable cause element of the malicious prosecution cause of action. As noted, the elements of a claim for malicious prosecution include a prior action commenced by or at direction of defendant that lacked probable cause and was initiated with malice, coupled with a termination of the action in plaintiff's favor. (Lanz, supra, 243 Cal.App.4th at 458.) A plaintiff suing for malicious prosecution must therefore show the underlying suit was commenced or continued without probable cause. (Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 313.) Whether probable cause existed for the prior action is a question of law for the court. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817.) This rule wards litigants against the danger that a lay jury would mistake a merely unsuccessful claim for a legally untenable one. (Ibid.)
Probable cause exists “if any reasonable attorney would have thought the claim tenable”—i.e., “arguably meritorious.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886.) Probable cause is lacking where a litigant relies on facts which he has no reasonable cause to believe are true, or where a litigant asserts a legal theory that is untenable under the facts known to him. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.) The trial court resolves this question in the first instance by making an "objective determination of the `reasonableness' of the defendant's conduct," determining "whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable." (Id. at 878.)
“What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact.” (Sheldon, supra, 47 Cal.3d at 877.) When evaluating a client's case and making an initial assessment of tenability, the attorney is entitled to rely on information provided by the client. (Swat-Fame v. Goldstein (2002) 101 Cal.App.4th 629.) An exception to this rule exists where the attorney is on notice of specific factual mistakes in the client's version of events. (Id. at 626-627.) Absent such notice, an attorney "may, without being guilty of malicious prosecution, vigorously pursue litigation in which he is unsure of whether his client or the client's adversary is truthful, so long as that issue is genuinely in doubt." (Tool Research Engineering Corp. v. Henigson (1975) 46 Cal.App.3d 675, 684 [disapproved on another ground in Sheldon, supra, 47 Cal.3d at 882-883].)
Here, Kim Defendants submit evidence is that Kim relied on specific facts and information supplied by Park as to Park’s interest in Eden Hill, both as to Park and as to the Board of Directors who purported to be the duly appointed and elected Board of Eden Hill. (UMF No. 17.) He states that even though the court in the underlying action found the documents to be fraudulent, he did not and still does not believe them to be forged, fabricated or false. (Kim Decl., 3.) Kim explains that the following facts were told to him by Park and his board of directors.
In early 2011, members of Eden Hill expressed concern that Kern had been misappropriating funds and that he was not operating the church pursuant to its aritcles of incorporation. (Kim Decl., ¶¶ 9-10.)
On January 13, 2011, the members of Eden Hill requested a special meeting of members pursuant to Cal. Corp. Code §§ 9411(b) and (c). Kern failed to provide notice so the members of Eden Hill called for a special meeting and provided notice for the special meeting through mail, in person, and through publication. (Kim Decl., ¶¶ 11-12, Exs. 8-9.) Sometime in April or May 2011, the members of Eden Hill elected the new members to the Board of Directors, including Park, Moses S. Kim, Ezrah E. Kim, Howard Harim Cho, Kiu Sork Bae, Soon Ok Na, and Esther J. Na. (Kim Decl., ¶ 13, Ex. 10.)These appointments continued throughout 2011 through 2016. (Kim Decl., ¶¶ 15-19.) The board later discovered in 2016 that Kern mismanaged Eden hill and were not following corporate formalities, as shown by Kern’s ignorance of the formalities in his deposition in the underlying case. (Kim Decl., ¶¶ 20-23.) In effect, he states that based on these representations and documents provided by his clients, he had probable cause to prosecute. Further, Kim has declared that he had no reason to disbelieve these facts and documentary information. (UMF No. 18.)
This is sufficient to shift the burden. Plaintiffs will need to provide facts which, if believed, would show a lack of probable cause.
Plaintiffs cite only one critical fact in opposition, the existence of an injunction in a separate action. Specifically, Plaintiffs cite to an injunction granted via default judgment in case no. CIVDS1511769 against Park. (Plaintiffs’ RJN Ex. 1.) The injunction provided that:
(i) Park has no right or authority to use or operate the Eden Hill Mission Church;
(ii) Kern is the President Chairman and Director of the Eden Hill Mission Church while Defendant is not a member director chairperson officer employee or agent of Eden Hill Mission Church;
(iii) any and all funds and assets Park has collected or seeks to collect from using or operating the Church or from conducting any action on behalf of or in the name of Eden Hill Mission Church are the property of Plaintiff not Park;
(iv) the purported election of Park to the Board of Directors of Eden Hill Mission Church on April 18, 2011 was invalid;
(v) the purported election of Park to be Chairman and President of Eden Hill Mission Church on May 17, 2011 was invalid;
(vi) The purported election of Park to be Chairman and President of Eden Hill Mission Church on January 24, 2012 was invalid;
(vii) Park and his agents, servants, employees, representatives, and those acting in concert or participating with him shall be and hereby are permanently enjoined and restrained from:
a. acting as and or carrying out or attempting to act or carry out the duties of Director Chairman and or President of Eden Hill Mission Church;
b. holding himself out as Director Chairman and or President of Eden Hill Mission Church;
c. incurring any expenses and or liabilities on behalf of the Eden Hill Mission Church; and
d. using operating and or conducting any action on behalf of or in the name of Eden Hill Mission Church
Plaintiff argues that Kim and the Firm had actual knowledge of the injunction because the firm represented Moses in CIVDS1511769, and tried to vacate the judgment twice. (Plaintiffs’ RJN Exs. 2-5.) Indeed, that shows that Kim Defendants likely had knowledge of the injunction/judgment which held that Park’s claims to Eden Hill Mission were unviable.
However, this injunction would only have bearing on Kim’s probable cause to continue prosecution if, in light of that knowledge, continuing the suit would have been unreasonable. In other words, would a reasonable attorney still believe the claim tenable despite the injunction.
Here, judicially noticeable documents demonstrate that Kim Defendants reasonably continued to prosecute the claim in light of the injunction. The issue of the Injunction and its application to the underlying action was presented to hat Court and fully briefed by the parties. (Def. RJN Exs. B-D.) The trial court in the Underlying Case ultimately ruled that the Injunction applied only to Park, and not to the other putative board members or to Kim, and allowed the matter to proceed to trial. (Def. RJN, Ex. E.) Thus, Kim Defendants, armed with approval from the court in the underlying action, continued to litigate the matter to trial. The Court cannot hold here that even though Kim knew about the injunction, it was unreasonable that he would continue to prosecute the claim in light of the court’s rulings regarding the injunction’s applicability to the underlying action. Therefore, the existence of the injunction does not substantially dispute Kim Defendants’ presented facts.
Plaintiffs present no further evidence regarding Kim Defendants’ probable cause.
Accordingly, Kim Defendants’ motion for summary adjudication is GRANTED.
Moving party is ordered to give notice.
Case Number: BC708515 Hearing Date: February 06, 2020 Dept: 24
Defendants David S. Kim and David S. Kim & Associates motion is CONTINUED to March 6, 2020 at 8:30 a.m.
Before filing a statutory motion for judgment on the pleadings, a moving party's counsel must meet and confer, in person or by telephone, with counsel for the party who filed the pleading subject to the judgment on the pleadings motion “for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (CCP § 439(a).)
Here, Defendants only submit a single email sent to then-counsel. (Fuson Decl., ¶ 3.) This does not comply with the requirement that the parties meet and confer, in person or by telephone. (CCP § 439(a).) Thus, Defendants failed to comply with the meet and confer requirements. The Court had already warned Defendants’ counsel to comply with the meet and confer obligations. (See 12/5/18 Minute Order [ruling on demurrer to FAC].) Plaintiffs have also stated that Defendants failed to meet and confer in the past, such as with the demurrer to the SAC.
Accordingly, the Court will continue the hearing to allow for code-compliant meet and confer efforts to take place, and for counsel to provide a code-compliant meet and confer declaration regarding these efforts at least five days in advance of the continued hearing.
Additionally, the Court sets an OSC re: Eden Hill’s attorney representation for the same day. A corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney. (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 729.) Moving party is ordered to give notice.
Case Number: BC708515 Hearing Date: January 07, 2020 Dept: 24
Gregory M. Smith, Esq., and The Maloney Firm, APC’s motion to be relieved as counsel is GRANTED.
On June 1, 2018, Plaintiff Eden Hill Mission (“Eden Hill”) and Jeff Kern (“Kern”) (collectively, “Plaintiffs”) filed a complaint against Defendants David S. Kim (“Kim”), David S. Kim & Associates (the “Firm”), and Moses Moon Park (“Park”). The action arises out of a series of litigation over the control of Eden Hill, a non-profit religious organization. On December 5, 2018, the Court sustained Defendants’ demurrer to the First Amended Complaint as to the first and second causes of action with leave to amend and overruled it as to the third. On December 21, 2018, Plaintiffs filed a Second Amended Complaint (“SAC”), alleging 1) legal malpractice by Eden Hill against Kim and the Firm; 2) breach of fiduciary duty by Eden Hill against Kim and the Firm; and 3) malicious prosecution by Kern against Defendants.
On April 24, 2019, Kim and the Firm (collectively, “Cross-Complainants”) filed an answer to the SAC. On May 3, 2019, Cross-Defendants filed a cross-complaint against Eden Hill, Kern, Patrick M. Maloney, Gregory M. Smith, The Maloney Firm APC, Daniel E. Park, Christopher C. Cianci, Daniel E. Park Law Corporation, Joshua Phelps, Charles Ludd, Jean Kwon, JK Law Firm APC, James B. Kropff, Star Estate Corporation, and Samuel Yu . The operative First Amended Cross-Complaint (“FACC”) maintains two causes of action for: 1) equitable indemnity; and 2) declaratory relief and equitable apportionment. Cross-Complainants dismissed Patrick M. Maloney, Gregory M. Smith, and The Maloney Firm from the CC on May 22, 2019.
On December 2 and 3, 2019, Gregory M. Smith, Esq., and The Maloney Firm, APC (“Counsel”) filed two motions to be relieved as counsel for Plaintiffs. No opposition was submitted. The motion as to Kern is at issue today.
The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (CCP § 284(2).) The attorney seeking to withdraw must take “reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel.” (Cal. Rules of Prof. Conduct, 3-700(A)(2). See, e.g., Vann v. Shilleh (1975) [holding withdrawal prejudicial where attorney withdraw from the representation of defendant on the Friday before trial began the following Monday].) “The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court.” (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.)
An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (CRC 3.1362(a), (c), (e).) The requisite forms must be served “on the client and on all parties that have appeared in the case.” (CRC, 3.1362(d).) When a client is served by mail, the attorney’s declaration must indicate that the client’s address was confirmed within the last 30 days and how it was confirmed. (Id.) If the attorney is unable to confirm the client’s current address, the declaration must state the reasonable efforts made within the last 30 days to obtain the client’s current address. (Id.)
Additionally, the declaration “must state in general terms and without compromising the confidentiality of the attorney client relationship why” a motion is brought instead of filing a substitution of attorney. (CRC, 3.1362(c).)
The Court finds that Counsel submits all the mandatory forms. Counsel states that an irreparable breakdown of the attorney-client relationship has occurred that cannot be disclosed without breaking attorney-client privilege. Counsel has served his client by mail at his last known address, which was confirmed within the past 30 days by telephone and email. The declaration notes that the following hearings are on calendar: 1) a status conference on Feb. 21, 2020; 2) the Final Status Conference on May 1, 2020; and 3) trial on May 12, 2020.
The Court finds that the client will not be prejudiced by the withdrawal since there are no dispositive motions pending and trial is not for 5 months. Therefore, the motion is GRANTED.