This case was last updated from Los Angeles County Superior Courts on 07/17/2021 at 13:46:07 (UTC).

KOREAN WESTERN PRESBYTERIAN CHURCH OF LOS ANGELES VS JONG SUK CHOI, ET AL.

Case Summary

On 11/06/2019 KOREAN WESTERN PRESBYTERIAN CHURCH OF LOS ANGELES filed a Contract - Business lawsuit against JONG SUK CHOI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JAMES C. CHALFANT and MONICA BACHNER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0062

  • Filing Date:

    11/06/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Business

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JAMES C. CHALFANT

MONICA BACHNER

 

Party Details

Plaintiffs and Cross Defendants

KOREAN WESTERN PRESBYTERIAN CHURCH OF LOS ANGELES A CALIFORNIA NONPROFIT RELIGIOUS CORPORATION

KOREAN WESTERN PRESBYTERIAN CHURCH OF LOS ANGELES

RA MYUNG CHUL

KO JOO MO

KIM BONG KYU

CHOI KEUN HO AKA PAUL CHOI

Defendants and Cross Plaintiffs

CHOI JONG SUK AKA OLAF J. CHOI AN INDIVIDUAL

LA OPEN DOOR PRESBYTERIAN CHURCH A CALIFORNIA NONPROFIT RELIGIOUS CORPORATION

THE WESTERN PRESBYTERY OF THE HAPDOING IN USA A CALIFORNIA NONPROFIT RELIGIOUS CORPORATION

PARK HUN SUNG AN INDIVIDUAL

PARK HUN SUNG

LA OPEN DOOR PRESBYTERIAN CHURCH

THE WESTERN PRESBYTERY OF THE HAPDONG IN USA

YUN NATHANAEL AKA NEUNG GU YUN AN INDIVIDUAL

KIM SAMUEL AKA SEUNG GON KIM AN INDIVIDUAL

KIM CHANG ROK

THE WESTERN PRESBYTERY OF THE HAPDOING IN USA

WORLD KOREAN PRESBYTERIAN CHURCH A CALIFORNIA NONPROFIT RELIGIOUS CORPORATION

Attorney/Law Firm Details

Plaintiff Attorneys

LEE W. DAN

LIM SHI YOUNG

Defendant and Cross Plaintiff Attorneys

FLORENCE ESQ BARRY

FLORENCE BARRY G.

SOHN CARL JAMES

DE LORIMIER PAUL

KIM STEVEN CHUL

 

Court Documents

Declaration - DECLARATION OF S. YOUNG LIM

12/31/2020: Declaration - DECLARATION OF S. YOUNG LIM

Minute Order - MINUTE ORDER (COURT ORDER)

1/13/2021: Minute Order - MINUTE ORDER (COURT ORDER)

Minute Order - MINUTE ORDER (EX PARTE APPLICATION OF DEFENDANTS, JONG SUK CHOI AND THE WE...)

1/21/2021: Minute Order - MINUTE ORDER (EX PARTE APPLICATION OF DEFENDANTS, JONG SUK CHOI AND THE WE...)

Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION PURSUANT TO CALIFORNIA CORPORATION

3/25/2021: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION PURSUANT TO CALIFORNIA CORPORATION

Declaration - DECLARATION OF S. YOUNG LIM IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DISSOLVE AN ORDER OF PRELIMINARY INJUNCTION DATED JANUARY 16, 2020

4/20/2021: Declaration - DECLARATION OF S. YOUNG LIM IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DISSOLVE AN ORDER OF PRELIMINARY INJUNCTION DATED JANUARY 16, 2020

Declaration - DECLARATION OF STEVEN C. KIM

6/3/2021: Declaration - DECLARATION OF STEVEN C. KIM

Declaration - DECLARATION OF STEVEN C. KIM IN SUPPORT OF MOTION TO COMPEL DEPOSITION

6/14/2021: Declaration - DECLARATION OF STEVEN C. KIM IN SUPPORT OF MOTION TO COMPEL DEPOSITION

Declaration - DECLARATION OF STEVEN C. KIM IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED VERIFIED COMPLAINT

7/15/2020: Declaration - DECLARATION OF STEVEN C. KIM IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED VERIFIED COMPLAINT

Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

8/24/2020: Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

Declaration - DECLARATION OF STEVEN C. KIM IN SUPPORT OF DEFENDANTS' DEMURRER AND MOTION TO STRIKE

9/4/2020: Declaration - DECLARATION OF STEVEN C. KIM IN SUPPORT OF DEFENDANTS' DEMURRER AND MOTION TO STRIKE

Declaration - DECLARATION OF STEVEN C. KIM IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR AN ORDER TO FIX A HEARING DATE PURSUANT TO CALIFORNIA CORPORATIONS CODE

10/20/2020: Declaration - DECLARATION OF STEVEN C. KIM IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR AN ORDER TO FIX A HEARING DATE PURSUANT TO CALIFORNIA CORPORATIONS CODE

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER - ORDER ON EX PARTE APPLICATION FOR MOTION FOR RE...) OF 03/16/2020

3/16/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER - ORDER ON EX PARTE APPLICATION FOR MOTION FOR RE...) OF 03/16/2020

Brief - BRIEF SUPPLEMENTAL PART TWO

2/27/2020: Brief - BRIEF SUPPLEMENTAL PART TWO

Brief - BRIEF BRIEF (PLAINTIFF'S SUPPLEMENTAL BRIEF RE: NOTICE OF STAY DUE TO PLAINTIFF'S FILING OF CHAPTER 11 BANKRUPTCY PETITION AS OF FEBRUARY 15, 2020)

2/19/2020: Brief - BRIEF BRIEF (PLAINTIFF'S SUPPLEMENTAL BRIEF RE: NOTICE OF STAY DUE TO PLAINTIFF'S FILING OF CHAPTER 11 BANKRUPTCY PETITION AS OF FEBRUARY 15, 2020)

Brief - BRIEF SUPPLEMENTAL BRIEF ON THE ISSUE OF WHY PLAINTIFF'S BANKRUPTCY FILING DOES NOT STAY THIS CASE AND THE HEARING ON MOTION FOR RECONSIDERATION

2/19/2020: Brief - BRIEF SUPPLEMENTAL BRIEF ON THE ISSUE OF WHY PLAINTIFF'S BANKRUPTCY FILING DOES NOT STAY THIS CASE AND THE HEARING ON MOTION FOR RECONSIDERATION

Order - ORDER PRELIMINARY INJUNCTION

1/16/2020: Order - ORDER PRELIMINARY INJUNCTION

Proof of Personal Service

11/18/2019: Proof of Personal Service

Declaration in Support of Ex Parte Application

11/13/2019: Declaration in Support of Ex Parte Application

333 More Documents Available

 

Docket Entries

  • 01/18/2022
  • Hearing01/18/2022 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 01/03/2022
  • Hearing01/03/2022 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/16/2021
  • Hearing12/16/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/14/2021
  • Hearing12/14/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/13/2021
  • Hearing12/13/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/10/2021
  • Hearing12/10/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/09/2021
  • Hearing12/09/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/08/2021
  • Hearing12/08/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/06/2021
  • Hearing12/06/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/02/2021
  • Hearing12/02/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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435 More Docket Entries
  • 11/15/2019
  • DocketEx Parte Application (for Temporary Restraining Order and Order to Show Cause re. Preliminary Injunction); Filed by Korean Western Presbyterian Church of Los Angeles (Plaintiff)

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  • 11/15/2019
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Korean Western Presbyterian Church of Los Angeles (Plaintiff)

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  • 11/15/2019
  • DocketOrder (Temporary Restraining Order and Issuance of Order to show cause re: preliminary injunction); Filed by Korean Western Presbyterian Church of Los Angeles (Plaintiff)

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  • 11/13/2019
  • DocketDeclaration in Support of Ex Parte Application; Filed by Korean Western Presbyterian Church of Los Angeles (Plaintiff)

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  • 11/13/2019
  • DocketDeclaration in Support of Ex Parte Application; Filed by Korean Western Presbyterian Church of Los Angeles (Plaintiff)

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  • 11/13/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 11/06/2019
  • DocketCivil Case Cover Sheet; Filed by Korean Western Presbyterian Church of Los Angeles (Plaintiff)

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  • 11/06/2019
  • DocketSummons (on Complaint); Filed by Korean Western Presbyterian Church of Los Angeles (Plaintiff)

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  • 11/06/2019
  • DocketComplaint; Filed by Korean Western Presbyterian Church of Los Angeles (Plaintiff)

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  • 11/06/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: 19STCV40062    Hearing Date: May 3, 2021    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

KOREAN WESTERN PRESBYTERIAN CHURCH OF LOS ANGELES,

vs.

JONG SUK CHOI aka OLOF J. CHOI, et al.

Case No.: 19STCV40062

[Related Case: 19STCV36339]

Hearing Date: May 3, 2021

Defendants’ motion to dissolve the preliminary injunction is denied.

To the extent Defendants’ request, in the alternative, for clarification of the Preliminary Injunction is a request the Court modify the Injunction to permit Defendants to conduct church services at KWPC’s Property, the request for modification is moot.

Defendants Rev. Jong Suk Choi aka Olaf J. Choi (“Choi”) and The Western Presbytery of the Hapdong in USA (“Hapdong”) (collectively “Defendants”) move for dissolution of the January 16, 2020 preliminary injunction (“Preliminary Injunction”). In the alternative, Defendants seek “clarification” of the Preliminary Injunction to allow Defendants and their group of members of Plaintiff Korean Western Presbyterian Church of Los Angeles (“KWPC”) to conduct worship services on the church premises. Defendants move on the grounds that the ends of justice will be served by the dissolution, or in the alternative, clarification of the Preliminary Injunction. (Notice of Motion, pgs. 1-2.)

The Court notes that while Defendants move in the alternative for “clarification” of the Preliminary Injunction, it seems this is a request for a modification of the Preliminary Injunction to permit Defendants (the Choi Faction) to conduct worship services at KWPC’s premises. (Motion, pg. 13.) The Preliminary Injunction clearly enjoins Choi and his followers from accessing KWPC’s Property and, as such, clarification is not necessary.

Requests for Judicial Notice

Defendants’ 1/5/21 request for judicial notice is denied as to the documents in the instant case file, for which there is no need to take judicial notice because the Court can always review the file for the case at hand. (D-RJN Exhs. 1-10, 13, 15, 19-22.) Defendants’ request for judicial notice of the February 21, 2020 Court Transcript is denied; however, the Court may consider the transcript in the same manner as the case file. (D-RJN, Exh. 12.) Defendants’ request for judicial notice is granted as to (1) the Declaration of Lee in the Bankruptcy Court, (2) WKPC’s Statement of Information, (3) the Bankruptcy Court’s memorandum of decision re: Trustee, (4) the Bankruptcy Court’s memorandum of decision re: automatic stay, and (5) the Stipulation entered into between the Trustee and Plaintiffs’ counsel in the Bankruptcy Court. (D-RJN, Exhs. 11, 14, 16-18.) However, the Court will not take judicial notice of the truth of the matters asserted within the documents.

Plaintiffs’ 4/20/21 request for judicial notice is denied as to the documents in the instant case file, for which there is no need to take judicial notice because the Court can always review the file for the case at hand. (P-RJN, Exhs. 1-5.)

Background

This case involves a dispute as to the control of the governing body of the KWPC between the so-called “Ko Faction” (plaintiffs) and the so-called “Choi Faction” (defendants). (See FAC, ¶¶3, 8, 41-45.) On November 6, 2019, KWPC filed the instant lawsuit for declaratory relief, injunctive relief, conspiracy, and unfair business practices against Choi, Hapdong, LA Open Door Presbyterian Church (“LAOD”) [dismissed 12/23/20] and Hun Sung Park (“Park”) [dismissed 12/23/20].

On November 15, 2019, Department 85 Judge James Chalfant granted KWPC’s ex parte application for a TRO, and on January 16, 2020, Judge Chalfant granted KWPC’s preliminary injunction. Specifically, the Court ordered: (1) Choi will be enjoined from using KWPC’s name, logo, website, telephone number, fax number, federal and state tax identification numbers, and federal employer identification numbers; and (2) Choi, Hapdong, and LAOD will be enjoined from interfering with KWPC’s possession, control, and management of its property located at 1218 S. Fairfax Avenue, Los Angeles California 90019 (“Property”), entering on to the Property without permission, and disrupting and/or interfering with KWPC’s meetings, events, and activities on the Property. (1/16/20 Ruling, pg. 16; Order.)

The Court granted the injunction on the grounds Defendants failed to establish the legitimacy of the request that Hapdong appoint Choi as KWPC’s pastor since the only evidence of KWPC’s dual membership with both the LA Presbytery and the Hapdong (that would legitimize such a request) was Choi’s declaration, whereas KWPC disputed Hapdong’s authority. (1/16/20 Ruling, pg. 13.) As such, the Court found the evidence showed KWPC was governed by the LA Presbytery and is not a member of Hapdong, and as such, no action by or on behalf of Hapdong has any bearing on the control or management of KWPC’s property including its purported October 29, 2019 appointment of Choi, and subsequent meetings held by Choi. (1/16/20 Ruling, pg. 13.) The Court found its conclusion that Defendants did not control or manage KWPC’s Property sufficient to support KWPC’s probability of success that Defendants are interfering with KWPC’s control of its Property. (1/16/20 Ruling, pg. 15.) The Court also found the balance of hardships weighed in favor of KWPC since if an injunction is not issued, KWPC would suffer harm from Defendants’ continued interference with its property rights and exercise of religious activities on its Property. (1/16/20 Ruling, pg. 15.)

The ruling was based on the conclusion that Defendants had not shown the legitimacy of the October 2019 request by Elder Yun and Reverend Samuel King that Hapdong appoint Choi as KWPC’s pastor. According to Choi, the request was appropriate because KWPC has dual membership with both the LA Presbytery and Hapdong, however there was no documentary evidence to support this dual membership other than Choi’s declaration and KWPC disputed that Hapdong had any authority and denied that it was a member of or had any affiliation with Hapdong.

[The Court notes at the time the preliminary injunction was applied for and issued, KWPC was the only plaintiff in the action since plaintiffs Joo Mo Ko (“Ko”), Bong Kyu Kim (“Elder Kim”), and Muyng Chul Ra (“Ra”) were not added as plaintiffs until August 6, 2020.]

Defendants applied ex parte for reconsideration of the injunction; the Court continued the hearing for the application to February 21, 2020. However, on February 14, 2020, KWPC filed a voluntary Chapter 11 bankruptcy petition, and on March 10, 2020, the Court ordered the instant action stayed. Accordingly, Judge Chalfant stayed Defendants’ reconsideration application.

On April 24, 2020, the Bankruptcy Court appointed Jason Rund a Chapter 11 Trustee (“Trustee”) to represent KWPC; in a stipulation between Trustee and counsel for KWPC, the Trustee made clear, “[a]t least at present, [it] intends to remain neutral with respect to the dispute between the ‘Ko Faction’ and the ‘Choi Faction’ over control of [KWPC] and its property,” with neither the Ko Faction nor the Choi Faction representing they have authority to act on behalf of KWPC. (D-RJN, Exhs. 16, 17, 18 [Stipulation, pg. 3].)

On April 21, 2020, the Bankruptcy Court lifted the automatic stay. On July 28, 2020, the Court granted KWPC’s motion for leave to amend its pleading permitting it to file a first amended complaint (“FAC”) naming Ko, Elder Kim, and Ra as additional plaintiffs and Yun, Rev. Kim, and Chang Kim as additional defendants. (Court’s 7/28/20 Ruling, FAC filed 8/6/20.) On September 15, 2020, Defendants applied ex parte for an order granting their motion for reconsideration of the Preliminary Injunction or, in the alternative, setting their motion for reconsideration of the Preliminary Injunction for hearing. On September 16, 2020, the Court granted Defendants’ request to set the motion for reconsideration for hearing and scheduled the hearing for November 11, 2020. The Court published its tentative ruling in advance of the hearing, however, was unavailable, and accordingly continued the hearing to December 15, 2020.

On December 15, 2020, the Court [Department 85] granted Defendants’ motion for reconsideration of the January 16, 2020 Preliminary Injunction and, after reconsideration, denied it on the merits. The ruling considered the parties’ original filings as well as evidence submitted in support of Defendants’ September 15, 202 ex parte application and Plaintiffs’ October 29, 2020 filings in opposition in ruling on the motion but did not consider the parties’ unauthorized filings filed after November 11, 2020. (12/15/20 Ruling, pg. 3.) The Court found that the decisions reached at the June 2, 2020 General Assembly of the World Korean Presbyterian Church (“WKPC”), including upholding Ko and Ra’s dismissal and that meetings held on November 1, 7, and 18 were void, did not bear on the Preliminary Injunction. (12/15/20 Ruling, pgs. 9-10.) The Court noted the Preliminary Injunction was based on the fact Hapdong was a third party for which no authority had been shown for it to appoint Choi as KWPC’s interim moderator, and accordingly, the Session meeting held by Choi in that capacity calling to remove Ko and, discontinue KWPC’s membership in the LA Presbytery, and join the California Presbytery was ineffectual. (12/15/20 Ruling, pg. 10.) The Court found that since the General Assembly decision did not address Hapdong or the November 5, 2019 vote, it did not affect the portion of the Preliminary Injunction ruling that relied on Hapdong’s lack of authority. (12/15/20 Ruling, pg. 10.) In addition, the Court noted Plaintiffs submitted evidence that during a November 17, 2019 Meeting, KWPC withdrew from WKPC, and as such, KWPC was no longer subject to WKPC’s authority or the resolutions reached in its June 2020 General Assembly. (12/15/20 Ruling, pg. 10.) While the Court previously found KWPC was governed by the LA Presbytery and was not a member of Hapdong (for the purposes of concluding Hapdong could not control KWPC’s property), Plaintiffs submitted evidence KWPC withdrew from the LA Presbytery and WKPC, and Defendants failed to rebut this disassociation. (12/15/20 Ruling, pg. 10.) Accordingly, the Court found there was no reason to dissolve the preliminary injunction based on the WKPC’s June 2020 General Assembly decision. (12/15/20 Ruling, pg. 10.) The Court also considered Defendants’ argument that since the Trustee is in charge of KWPC’s property, neither faction controls KWPC’s access for services, rendering the Preliminary Injunction unnecessary. The Court found Defendants failed to demonstrate the injunction is unnecessary given the Bankruptcy Court’s conclusion dismissal would not be proper because of the risk of dissipation of assets which supports Plaintiffs’ argument that the preliminary injunction should be maintained to protect the status quo and prevent potential harm from sale of KWPC property. (12/15/20 Ruling, pg. 10.)

On December 23, 2020, LAOD and Park were dismissed from the action pursuant to the December 18, 2020 Notice of Dismissal filed by Plaintiffs. Plaintiffs also dismissed Yun on December 23, 2020. Given the dismissals of LAOD and Park, the action’s remaining defendants are Choi, Rev. Kim, Chang Kim, and Hapdong. Rev. Kim and Chang Kim are not moving parties on the instant motion.

On January 5, 2021, Defendants Choi and Hapdong filed the instant motion. On April 20, 2021, Plaintiffs KWPC, Ko, Elder Kim, and Ra (collectively, “Plaintiffs”) filed an opposition to the instant motion. On April 26, 2021, Defendants filed a reply and on April 27, 2021, Defendants filed an amended page 5 of the reply.

On April 8, 2021, Judge Chalfant in Department 85 granted KWPC’s motion for a determination of the validity of purported removal, election, or appointment of directors of KWPC pursuant to California Corporations Code §9418. [As a preliminary matter, the Court found KWPC did not have standing to bring the motion given the motion must be brought by a director, member, or person with a right to vote and given KWPC lacked the Trustee’s authority to file the motion; however, the Court found the individual plaintiffs had standing to seek Section 9814 relief. (4/13/21 Notice of 4/8/21 Ruling, pg. 14.)] Specifically, the Court ruled Plaintiffs Ko, Elder Kim, and Ra were duly elected or appointed to the Board (Session); the Court noted that whether Ko, Elder Kim, and Ra were properly removed by the LA Presbytery and/or the General Assembly of WKPC or whether they currently remain as directors is an issue for trial of the main case. [The LA Presbytery is a regional governing body of the national church known as the WKPC.] As such, the April 8, 2021 ruling only addressed whether the Ko Faction’s appointment was proper.

On April 21, 2021 the Court overruled Defendants’ demurrer to the FAC as to KWPC in its ruling on submitted matter.

Procedural Issues

Plaintiffs argue Defendants’ request for clarification of the Preliminary Injunction must be brought before Judge Chalfant and does not address an aspect of the ruling requiring clarification. (Opposition, pg. 10.) However, it appears Defendants’ request for clarification is a request that the Court modify the Preliminary Injunction so that Choi and the KWPC members who follow him may conduct services on KWPC’s Property. (Motion, pg. 13.) Given the Preliminary Injunction enjoins Choi from accessing KWPC’s Property, a request that the Court allow for Choi to conduct services there would amount to a modification of the Preliminary Injunction. As such, this request is properly brought before this Court. (LASC Rule 2.7(b)(1)(H)(i).)

Plaintiffs argue Defendants’ request for modification of the Preliminary Injunction is moot since Choi and his followers conduct their meeting pursuant to the Trustee’s permission. (Opposition, pg. 10.) Plaintiffs assert that given the Trustee’s possession, control, and management of KWPC’s Property during the pendency of the bankruptcy proceeding, there is no need to modify the Preliminary Injunction since Defendants are permitted to use and occupy the Property pursuant to the Trustee’s permission. (Opposition, pg. 10.) In reply, Defendants do not address the mootness of their request, and concede the Trustee does not object to Choi and his followers conducting worship services at KWPC’s Property. (See Reply, pg. 5 [“The trustee does not take any position as to whether Defendants the Choi Faction’s use of the church facilities is permissible under the preliminary injunction. But the trustee does not have an objection to Rev. Choi and his followers conducting worship services and using the church facilities for related purposes (provided they adhere to applicable state and local safety restrictions and protocols).”].) Accordingly, the Court finds Defendants’ request for modification of the Preliminary Injunction is moot.

Defendants object to Ko, Elder Kim, and Ra’s filing of an opposition together with KWPC and on KWPC’s behalf. (Reply, pg. 2.) Defendants argue Ko, Elder Kim, and Ra (collectively, “Individual Plaintiffs”) lack authority to oppose the motion given it stipulated it has no authority to act on behalf of KWPC and KWPC remains neutral. (Reply, pg. 2.) Defendants note the injunction was issued in favor of KWPC, not in favor of the Individual Plaintiffs who were not parties to the action at the time the injunction was issued. In addition, Defendants assert only the Trustee has authority to act on behalf of KWPC, and the Trustee has not filed an opposition to the instant motion. Here, the evidence suggests KWPC lacks the Trustee’s authority to file the opposition; the Trustee agreed KWPC would remain neutral, and Trustee has not filed an opposition. In addition, since the Preliminary Injunction was not granted to Individual Plaintiffs, they are not entitled to oppose its dissolution.

Motion to Dissolve Preliminary Injunction

On noticed motion, the Court may modify or dissolve a preliminary injunction upon a showing that there has been a material change in the facts upon which the injunction was granted, that the law upon which the injunction was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction. (C.C.P. §533.) The judge must dissolve the preliminary injunction if it appears to have been issued on insufficient grounds and must modify or vacate it if the circumstances or law have changed or the ends of justice would be served. (C.C.P. §533; Salazar v. Eastine (1995) 9 Cal.4th 836, 849-50.)

In the Central District, a motion to dissolve or modify a preliminary injunction issued by a Writs and Receivers judge is heard in the I/C court. (LASC Rule 2.7(b)(1)(H)(i).)

In their Notice of Motion, Defendants argue the motion is based on the grounds that the ends of justice will be served by the dissolution of the preliminary injunction; however, the motion does not include argument supporting this assertion. (Notice of Motion, pg. ii.) In addition, while the motion refers to C.C.P. §533 for the Court’s authority to dissolve an injunction on a showing there has been a material change in the facts upon which the injunction was granted, the motion does not explain how a change in facts (upon which the injunction was granted) warrant the injunction’s dissolution. (Motion, pg. 3.)

Defendants failed to establish a material change in the facts upon which the Preliminary Injunction was granted warrant its dissolution. A review of the evidence demonstrates Defendants have not presented “new facts” warranting dissolution of the injunction beyond those already presented to and considered by Judge Chalfant in denying the motion for reconsideration on the merits given his December 15, 2020 Ruling carefully considers evidence included in Defendants’ September 15, 2020 ex parte application and supporting declarations, as well as evidence submitted by Plaintiffs in response. As such, while the original motion for reconsideration was filed prior to KWPC’s bankruptcy, the appointment of the Trustee, or the June 2020 General Assembly, the Court has already ruled that these events did not qualify as a material change in the facts upon which the injunction was granted to allow for dissolution. As such, Defendants’ argument in reply that several events could not have been raised in the motion for reconsideration because they had not occurred is without merit; the Court considered these events in ruling on the motion on the merits. (Reply, pg. 3.) In reply, Defendants argue there has been a material change in the facts upon which the injunction was granted because the injunction was granted to prevent church members from engaging in physical altercations and, at that time, the two Factions sought control of KWPC’s Property, but now, neither Faction has control. (Reply, pgs. 4-5.) However, this misstates the basis for the Court’s granting of the preliminary injunction. Moreover, the fact the two Factions sought control and now neither Faction has control does not necessarily qualify as a change in a material fact upon which the Preliminary Injunction was granted. Notably, the cited material changes were considered by Judge Chalfant in finding an order for dissolution of the injunction was not warranted on the same basis. As such, Defendants’ argument is without merit. The Court acknowledges there have clearly been

Defendants assert the Preliminary Injunction involves the use of KWPC’s Property, which is under the exclusive control of the Trustee pursuant to the Bankruptcy Court’s order and, as such, the injunction is no longer necessary since any improper use of the Property will be dealt with in the Bankruptcy Court. (Reply, pg. 2.) However, the standard for determining whether an injunction should be dissolved is whether the facts upon which the injunction was granted have changed, which Defendants have not necessarily established. Moreover, while the Trustee is presently in control of KWPC’s property and has agreed to remain neutral, the stipulation clearly limits such an agreement to “at least at present.” As such, Defendants have not sufficiently established that the present neutrality of the Trustee amounts to a material change in fact that warrants dissolution of the Preliminary Injunction. Moreover, since filing the motion, Trustee has agreed to permit Defendants to conduct services at KWPC’s property, which was Defendants’ goal in bringing the instant motion based on their request for clarification. Defendants have not established they are entitled to an order dissolving the Preliminary Injunction.

Based on the foregoing, Defendants’ motion for dissolution of the Preliminary Injunction is denied. To the extent Defendants’ request for clarification of the Preliminary Injunction is a request the Court modify the Injunction to permit Defendants to conduct church services at KWPC’s Property, the request for modification is moot.

Dated: May _____, 2021

Hon. Monica Bachner

Judge of the Superior Court

Case Number: 19STCV40062    Hearing Date: April 13, 2021    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

KOREAN WESTERN PRESBYTERIAN CHURCH OF LOS ANGELES,

vs.

JONG SUK CHOI aka OLOF J. CHOI, et al.

Case No.: 19STCV40062

[Related Case: 19STCV36339]

Hearing Date: April 13, 2021

Defendants’ demurrer to the first amended complaint is overruled as to Plaintiff Korean Western Presbyterian Church of Los Angeles.

Defendants’ motion to strike the FAC is denied.

  1. Demurrer

    Defendants Rev. Jong Suk Choi aka Olaf J. Choi (“Choi”), Nathanael Yun aka Neung Gu Yun (“Yun”), Samuel Kim aka Seung Gon Kim (“Rev. Kim”), Chang Rok Kim (“Chang Kim”), and The Western Presbytery of the Hapdong in USA (“Hapdong”) (collectively “Defendants”) demur to all causes of action asserted in the first amended complaint (“FAC”) filed by Plaintiffs Korean Western Presbyterian Church of Los Angeles (“KWPC”), Joo Mo Ko (“Ko”), Bong Kyu Kim (“Elder Kim”), and Muyng Chul Ra (“Ra”) (collectively “Plaintiffs”) on August 6, 2020. Defendants demur on the grounds KWPC lacks standing to sue and there is no actual controversy and the FAC seeks relief beyond the scope of the Bankruptcy Court’s relief from automatic stay. (Notice of Demurrer, pg. ii; C.C.P. §§430.10, 367.) The Court notes Defendants’ demurrer is limited to whether KWPC is entitled to pursue the instant action and is not addressed at the other named plaintiffs Ko, Elder Kim, and Ra.

    Requests for Judicial Notice

    Defendants’ 9/4/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted within the documents. (D-RJN, Exhs. 1-5.)

    Plaintiffs’ 12/31/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted within the documents. (P-RJN, Exhs. 1-6.)

    Procedural Background

    On November 6, 2019, KWPC filed the instant lawsuit for declaratory relief, injunctive relief, conspiracy, and unfair business practices against Choi, Hapdong, LAOD, and Park. On February 14, 2020, KWPC filed a voluntary Chapter 11 bankruptcy petition, and on March 10, 2020, the Court ordered the instant action stayed. On April 21, 2020, the Bankruptcy Court lifted the automatic stay and on April 24, 2020, KWPC moved for leave to file a FAC. Specifically, KWPC sought leave to amend to add Presbyterian Church in Korea (Hapdong) (“PCK”), Dan In Choe (“Choe”), Jung Gi Na (“Na”), Yun, Rev. Kim, and Chang Kim as additional defendants and Ko, Elder Kim, and Ra as additional plaintiffs. [The Court notes KWPC’s motion for leave to amend refers to Choe as both “Dan In Chae” and “Dan In Choe.”] On July 28, 2020, the Court granted KWPC’s motion for leave to amend its pleading as requested in its motion and reply, permitting KWPC to file an amended pleading that would name Ko, Elder Kim, and Ra as additional plaintiffs and PCK, Choe, Na, Yun, Rev. Kim, and Chang Kim as additional defendants. (Court’s 7/28/20 Ruling.) On August 6, 2020, Plaintiffs filed the FAC, which did name the additional plaintiffs requested; however, only Yun, Rev. Kim, and Chang Kim were added as defendants, and PCK, Choe, and Na were not added as defendants. The instant demurrer was filed on September 4, 2020.

    On December 17, 2020, the Court granted Defendants’ motion for disqualification of Plaintiffs’ counsel W. Dan Lee (“Attorney Lee”) and his firm METAL Law Group, LLP (collectively “Counsel Lee”) as their attorney of record. (Court’s 12/17/20 Ruling on Submitted Matter.) Specifically, the Court disqualified Counsel Lee on the grounds Attorney Lee previously represented KWPC and its Session members, including Yun, in a previous action that was substantially related to the instant matter. (Court’s 12/17/20 Ruling on Submitted Matter, pgs. 4-5.)

    On December 18, 2020, Plaintiffs filed a Notice of Dismissal for Defendants LA Open Door Presbyterian Church (“LAOD”) and Hun Sung Park (“Park”), who were not parties to the instant demurrer, and the Court entered their dismissals on December 23, 2020. Plaintiffs also filed a December 18, 2020 Notice of Dismissal of demurring defendant Yun, whose dismissal was entered on December 23, 2020. The Court notes Yun had recently been added to the action pursuant to KWPC’s request for leave to amend, and the Court had recently disqualified Plaintiffs’ Counsel based on Attorney Lee’s successive representation of Yun. On December 31, 2020, Attorneys S. Young Lim and Jessie Y. Kim of Park & Lim (collectively, “Park & Lim”) filed a motion for reconsideration of the Court’s ruling disqualifying Counsel Lee. Given the dismissals, the moving defendants on the demurrer consist of Choi, Rev. Kim, Chang Kim, and Hapdong. In addition, given the dismissals of LAOD and Park, moving defendants are the action’s only remaining defendants.

    On December 31, 2020, Park & Lim filed an opposition to the demurrer on behalf of Plaintiffs. On January 7, 2021, Defendants filed a reply. The Court continued the hearing on the demurrer from January 14, 2021 to January 29, 2021, and thereafter to March 25, 2021. On March 9, 2021, the Court denied Plaintiffs’ motion for reconsideration. On March 18, 2021, Defendants filed a second reply to Plaintiffs’ opposition.

    At the hearing on the motion on March 25, 2021, Plaintiffs argued KWPC had to be included in the instant action as a nominal plaintiff. The Court allowed supplemental briefing on this issue and continued the hearing to April 13, 2021. On April 1, 2021, Plaintiffs filed supplemental briefing and on April 6, 2021, Defendants filed a supplemental reply.

    Background of Action

    This case involves a dispute as to the control of the governing body of the KWPC between the so-called “Ko Faction” and the so-called “Choi Faction”. (See FAC, ¶¶3, 8, 41-45.)

    In March 2018, Yun and Plaintiffs Elder Kim and Ko were the governing body of the KWPC, known as the Session. In March 2018, the KWPC Session directed Counsel Lee to file the lawsuit in Case No. BC698722 Korean Western Presbyterian Church v. Geon Oh Seo, et al., filed 3/20/18 in Department 62 (“the First Action”), which involved KWPC’s internal governance dispute over its property. The First Action was resolved in favor of KWPC when the Court granted its motion for summary judgment. (7/25/19 Notice of Entry of Judgment.)

    On October 10, 2019, a new lawsuit relating to church governance was filed by former or current members of KWPC against KWPC, Yun, Elder Kim, Ko, Rev. Kim (Yun’s brother-in-law and KWPC’s founding pastor), LAOD, Park, Suk Ho Jin and Korean Western Presbyterian Church Foundation in Case No. 19STCV36339, captioned Kook Bong Lee, et al. vs. Nathanael Yun, et al. in Department 71 (“the Second Action”). On November 6, 2019, KWPC filed the instant lawsuit for declaratory and injuctive relief against Choi, Park, Hapdong, and LAOD, Case No 19STCV40062, Korean Western Presbyterian Church v. Geon Oh Seo, et al. (the “instant action”). On November 15, 2019, Department 85 Judge James Chalfant granted KWPC’s ex parte application for a TRO and on January 16, 2020, granted a preliminary injunction. Defendants applied ex parte for reconsideration of the injunction, and on January 27, 2020, the Court continued the hearing for the application to February 21, 2020. However, on February 18, 2020, Ko filed for bankruptcy on behalf of KWPC and filed a Notice of Stay in the instant case. Accordingly, on March 16, 2020, the Court stayed the instant action and Judge Chalfant stayed Defendants’ reconsideration application.

    On April 24, 2020, the Bankruptcy Court entered two separate Orders based on two Memoranda of Decision relating to whether to appoint a Chapter 11 Trustee and whether a limited relief from stay is warranted. (Demurrer, pgs. 1-2; RJN, Exhs. 2, 4.) The Bankruptcy Court appointed a Chapter 11 Trustee (“Trustee”) to represent KWPC; the Trustee made clear KWPC would remain neutral “at this time” and the instant action would resolve the dispute between the factions, with neither the Ko Faction nor the Choi Faction representing they have authority to act on behalf of KWPC. (D-RJN, Exh. 5.)

    On July 28, 2020, the Court granted KWPC’s motion for leave to amend the complaint, and Yun, Rev. Kim, and Chang Kim were added as defendants in the first amended complaint (“FAC”) filed on August 6, 2020. As noted above, Plaintiffs dismissed Yun from the action in December 2020.

    Procedural Issues

    Defendants argue the filed FAC differs from the Proposed FAC the Court approved in ruling on KWPC’s motion for leave to amend, and as such, the FAC is subject to demurrer and motion to strike. (Demurrer, pgs. 5-6.) However, Defendants fail to establish how a pleading filed without leave renders it subject to demurrer. As such, Defendants’ demurrer to the FAC on the grounds it is different form the Proposed FAC is overruled.

    Standing

    Defendants argue KWPC lacks standing to pursue the instant action given its stipulated assertion to remain neutral and the Bankruptcy Court’s limited order lifting the stay for the sole purpose of determining the governing body of KWPC. (Demurrer, pgs. 6-7.) Therefore, only the Trustee may act on KWPC’s behalf, and given Trustee’s assertion KWPC will remain neutral, KWPC lacks standing to pursue declaratory and injunctive relief based on the Ko Faction’s purported control of KWPC. Defendants argue the FAC accordingly does not state facts sufficient to constitute a cause of action warranting sustaining the demurrer. In opposition, Plaintiffs argue the Bankruptcy Court Stipulation does not establish as a matter of law the KWPC lacks standing. (Opposition, pgs. 4-5.) The Court agrees as the stipulation states “[a]t least at present, the Trustee intends to remain neutral with respect to the dispute between the “Ko Faction” and the “Choi Faction” over control of [KWPC] and its property.”

    Lack of Actual Controversy

    Plaintiffs’ declaratory relief cause of action is based on allegations that the Ko Faction contends the Board consisting of Ko, Elder Kim, and Ra represents KWPC in the instant action and the Bankruptcy case and that the Ko Faction Board has the right to process, control and manage KWPC’s property at the exclusion of Defendants subject to LAOD’s commercial lease agreement with KWPC, contrary to Defendants’ contention that the Choi Faction Session has the right to possess, control and manage KWPC property at the exclusion of the Ko Faction. (FAC ¶¶41-43.) Plaintiffs allege there is accordingly an actual controversy involving judiciable questions relating to the parties’ respective property rights, including the Bankruptcy Case. (FAC ¶44.) Defendants argue KWPC’s stipulated neutral stance establishes there is no actual controversy between KWPC and Defendants warranting that the demurrer be sustained without leave to amend as to KWPC. (Demurrer, pgs. 7-8.) As Plaintiff assert in opposition, the Trustee only stipulated to remain neutral “at least at present” which does not affirm there is no judiciable controversy with Defendants, and as such, the instant action should go forward to determine the governing party of KWPC. (Opposition, pg. 8.)

    Motion to Strike

    Defendants move to strike the entire FAC or, in the alternative, the following portions thereof: (1) FAC, pg. 9, ¶A lines 12-14 (Prayer), and (2) FAC, pg. 9, ¶A, lines 13-23 (Prayer). Defendants’ motion is made on the grounds that: (1) the FAC is not the Proposed FAC approved by the Court in granting leave to amend; (2) Plaintiffs lack standing to seek the above quoted judgment; (3) there is no actual controversy between KWPC and Defendants; and (4) the cited prayer for relief is beyond the scope of the Bankruptcy Court’s relief from automatic stay. (Notice of Motion, pg. ii.)

    C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” [The Court notes Defendants’ motion fails to cite to C.C.P. §436 as the authority for the instant motion.]

    The Court declines to strike the FAC in its entirety due to differences between the filed FAC and the Proposed FAC that was submitted with Plaintiffs’ motion for leave to amend. While the FAC deletes certain allegations and exhibits from the Proposed FAC, Defendants fail to argue how the differences in the pleadings exceed the scope of amendment granted by the Court in allowing Plaintiffs leave to amend. Moreover, for the reasons discussed above, Defendants have not established further grounds for relief.

    Dated: April _____, 2021

    Hon. Monica Bachner

    Judge of the Superior Court

Case Number: 19STCV40062    Hearing Date: April 8, 2021    Dept: 85

Korean Western Presbyterian Church of Los Angeles, et al. v. Jong Suk Choi, et al., 19STCV40062

Tentative decision on motion for determination of validity of Board of Directors: granted

Plaintiffs Korean Western Presbyterian Church of Los Angeles (“Church”), Joo Mo Ko (“Ko”), Bong Kyu Kim (“Elder Kim”), and Myung Chul Ra (“Ra”) move for a determination pursuant to Corporations Code[1] section 9418, that the Church’s Board of Directors consists of Plaintiffs Ko, Kim, and Ra as validly elected or appointed.

The court has read and considered the moving papers, opposition,[2] and reply,[3] and renders the following tentative decision.

A. Statement of the Case

1. Complaint

Plaintiff Church commenced this proceeding on November 6, 2019 against Defendants Jong Suk Choi (“Choi”), the Western Presbytery of the Hapdong in USA (“Hapdong”), LA Open Door Presbyterian Church (“LAOD”), and Hun Sung Park (“Park”). The operative pleading is the First Amended Complaint (“FAC”) filed on August 6, 2020, which alleges a cause of action for declaratory relief and seeks the remedy of injunctive relief. The FAC added Plaintiffs Ko, Kim, and Ra and Defendants Neung Gu Yun (“Yun”), Chang Rok Kim (“Chang Kim”), and Samuel aka Seung Gon Kim (“Seung Kim”) and alleges in pertinent part as follows.

Church is, and has always been, predominantly a Korean-speaking ethnic church located in the Los Angeles County. On March 3, 1972, Church was first organized as an independent Presbyterian church. On October 11, 1973, Church was registered as a California non-profit religious corporation.

For over 30 years, from its establishment in 1972 until May 2003, Church operated as an independent Presbyterian Church without affiliation with any national church or denomination, and it was not controlled by any higher ecclesiastical governing bodies commonly known as presbyteries and general assembly.

In May 2003, Church joined the Los Angeles Presbytery (“LA Presbytery”), a regional governing body of the national church known as the Korean American Presbyterian Church, a Pennsylvania corporation doing business in California as KAPC, Inc. (“KAPC”). In 2014, Church withdrew its membership from KAPC and joined a newly organized national church known as the World Korean Presbyterian Church, a California non-profit religious corporation (“WKPC”). WKPC is a spin-off denomination from KAPC and was organized as a California non-profit religious corporation in June 2014. Both KAPC and WKPC have adopted the same Book of Church Order (“BOCO”) as their constitution for faith and polity.

At a special congregational meeting held on November 17, 2019, Church terminated its affiliation with WKPC, effective that date. Accordingly, since November 17, 2019 to date, Church is an independent Presbyterian church. The November 17, 2019 meeting was held in full compliance with the notice and other requirements of the BOCO and was effective in terminating Church’s affiliation with WKPC.

Defendants contend that Church is a member church of, and therefore is governed by, Hapdong. Defendants contend that Hapdong appointed Choi as a temporary senior pastor of Church at a meeting of October 29, 2019 and that the Session consisting of Defendants Choi, Yun, Seung Kim, and Chang Kim has the right to possess, manage, and control Church’s property. Further, Defendants contend that Church and LAOD are practically merged as one church, LAOD is a de facto owner of Church’s real property, and Defendant Pastor Park is senior pastor of both Church and LAOD.

As a result, Plaintiffs allege that declaratory relief is necessary to prevent Defendants from interfering with Plaintiffs’ ability to manage and control Church’s property and under section 9418 an injunction should be issued enjoining Defendants from interfering with the Session consisting of Plaintiffs Ko, Kim, and Ra.

2. Course of Proceedings

On November 15, 2019, the court granted Church’s ex parte application for a temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”) and set the OSC hearing date for December 5, 2019.

On November 26, 2019, the court denied Defendants’ ex parte application for immediate termination of the TRO and continued the OSC to January 16, 2020. The court also informed the parties that it would not rely on the Complaint as evidence. On January 16, 2020, the court granted Church’s application for a preliminary injunction.

On January 27, 2020, Defendants applied ex parte for reconsideration of the January 16, 2020 preliminary injunction. The court set a hearing on the application for February 21, 2020, instructing Defendants to file and serve supplemental moving papers by February 13, 2020 and Plaintiffs to file and serve any supplemental opposition by February 19, 2020.

On February 18, 2020, Church filed a Notice of Stay of Proceedings based on an automatic stay from its bankruptcy filing in the Central District of California.

At the February 21, 2020 hearing, the court noted that Church had filed for bankruptcy and a Notice of Stay of Proceedings. The court also noted that the parties had appeared in Department 71 two days earlier to discuss the bankruptcy stay issue, and Judge Bachner continued the matter to March 10, 2020. The court continued the application to reconsider until after Judge Bachner’s decision on the effect of the bankruptcy filing.

In deferring reconsideration, the court noted, based on Defendants’ moving papers and without the benefit of Church’s opposition, the following: (1) the undisputed principle is that the court does not have authority to decide who is the appropriate pastor for Church, but does have authority to decide who controls the property where the worship services occur. Def. Ex. 1, p.6; (2) the court granted the preliminary injunction on the basis that Hapdong was a third party which appointed Reverend Choi as pastor and to be in control of Church property, and the court did not see any evidentiary basis on which Hapdong could do so. Id.; (3) the key meeting was the LA Presbyery’s decision which was infected by Hapdong’s intrusion. Id.; (4) Defendants’ evidence stated that Church has a dual membership in Hapdong and Church. Id., p. 7; and (5) Church’s General Assembly, through the Moderator and special committee, all approved Reverend Choi, who was appointed by Hapdong. Id. Based on this evidence, the court stated that “Defendants have a pretty good case for reconsideration.” Id.

On March 10, 2020, the parties appeared before Judge Bachner, the I/C judge for this case, to discuss the effect of the bankruptcy filing. Judge Bachner stayed the entire action. The parties also agreed that cases 19STCV40062, 19STCV36339 and 20STCV06255 should be related.

On March 16, 2020, this court followed Judge Bachner’s lead and stayed Defendant Hapdong’s application for reconsideration of the preliminary injunction.

After relief from the bankruptcy court was obtained, on September 16, 2020 the court granted Defendants’ ex parte application to set the motion for reconsideration of the preliminary injunction, setting the hearing for November 12, 2020. The court issued a tentative decision for the November 12 hearing but became unavailable on that date. Per the parties’ stipulation, the hearing was continued to December 15, 2020.

On December 15, 2020, the court granted Defendants’ motion for reconsideration of the January 16, 2020 preliminary injunction and, after reconsideration, denied it on the merits. The court also granted Plaintiffs’ motion to fix a hearing date under Section 9418, scheduling the hearing for April 8, 2021.

On February 10, 2021, the court denied Defendants’ ex parte application for an order continuing the hearing on Plaintiffs’ section 9418 motion.

B. Applicable Law

A director, member, or any person who had the right to vote in the election, may file suit for determination of the validity of any election or appointment of any director of a religious non-profit corporation. §9418(a). The court, in conformity with the articles and bylaws of the corporation to the extent feasible, may determine that the person entitled to the office of director or may order a new election to be held or appointment to be made, may determine the validity of membership and the right of persons to vote, and may direct such other relief as is just and proper. §9418(c). The hearing shall be held within five days of filing the complaint unless good cause exists for a later date.

Special meetings of the members of a non-profit religious corporation may be called by five percent or more of the members. §9411(b).[4] The board of directors must expeditiously set a time and place for the special meeting and the pertinent officer shall cause notice to be given to members. §9411(c).

C. Statement of Facts[5]

1. Plaintiffs’ Evidence[6]

Church is, and has always been, predominantly a Korean-speaking ethnic church located in the Los Angeles County. Elder Kim Decl., ¶3. On March 3, 1972, Church was first organized as an independent Presbyterian church. Id. On October 11, 1973, Church was registered as a California nonprofit religious corporation. Id., Ex. 2.

Church’s Articles of Incorporation (“Articles”) provide that it is a non-profit corporation operated exclusively for religious and charitable purposes. Elder Kim Decl., ¶4, Ex. 2. Since the Church’s incorporation in 1973 to date, its affairs and activities have been conducted in compliance with the Articles. Church is organized pursuant to non-profit corporation law of California. Elder Kim Decl., ¶4, Ex. 2. The authorized number and members of the non-profit corporation, their voting rights and privileges shall be as set forth in the Bylaws. Elder Kim Decl., ¶4, Ex. 2. The Articles have never been amended. Elder Kim Decl., ¶5.

Church’s Bylaws were certified by the then-President and Defendant Seung Kon Kim and Secretary Woo Hyun Lee and notarized on August 26, 1973. Elder Kim Decl., ¶6, Ex. 3. The Bylaws provide that the corporation’s business shall be conducted by a Board of Directors (“Board”) of no more than 12 and no less than three persons. Elder Kim Decl., ¶6, Ex. 3. A special meeting of the Board may be called by the President at any time as may be necessary. Elder Kim Decl., ¶6, Ex. 3. A quorum of Board members shall be not less than three and business shall be conducted by a majority vote of the Board. Elder Kim Decl., ¶6, Ex. 3.

The term of a Board member shall be determined from time to time by the Board. Elder Kim Decl., ¶6, Ex. 3. Members of the Board shall be elected by the regular members of the corporation with such qualifications as determined by the regular members. Elder Kim Decl., ¶6, Ex. 3. Vacancies on the Board shall be filled by the Board as they occur, and a person chosen as Board member shall serve until the next annual election. Elder Kim Decl., ¶6, Ex. 3.

Each regular member shall have one vote at all meetings of members. Elder Kim Decl., ¶6, Ex. 3. All memberships shall be for the life of such member or until otherwise terminated. Elder Kim Decl., ¶6, Ex 3.

Since its incorporation in 1973 to date, Church has conducted its affairs and activities in compliance with the foregoing Bylaws. Elder Kim Decl., ¶7. To date, none of the Bylaws have ever been amended or altered. Id.

For over 30 years, from its organization in 1972 until 2003, Church operated as an independent Presbyterian church without affiliation with any national church, and not controlled by any higher ecclesiastical governing bodies commonly known as presbyteries and general assembly. Elder Kim Decl., ¶8. Church’s affairs were conducted by the Board pursuant to the Articles and Bylaws without any interference, control, and/or directions from any higher ecclesiastical governing bodies. Id.

In 2003, Church joined the LA Presbytery, a regional governing body of the national church, KAPC, which is a Pennsylvania corporation doing business in California as KAPC, Inc. Elder Kim Decl., ¶9; Lim Decl., Ex. 25.

In 2014, Church withdrew its membership from KAPC. Elder Kim Decl., ¶10. During Church’s affiliation with KAPC from 2003 through 2014, its affairs were conducted by the Session -- which is analogous to the Board -- pursuant to the Book of Church Order (“BOCO”) as well as the Articles and Bylaws. Id. Under KAPC, the Session consisted of pastor(s) and elder(s). Id.

On February 16, 2014, Church joined WKPC, a newly organized national church and California non-profit religious corporation that was a spin-off denomination from KAPC and organized in 2014 as a California nonprofit religious corporation. Elder Kim Decl., ¶11; Lim Decl., Ex. 26. Both KAPC and WKPC adopted the same BOCO as their respective constitution for faith and polity. Elder Kim Decl., ¶11, Ex. 4.

At a regular presbytery meeting on March 13, 2018, the LA Presbytery commissioned a Judicial Settlement Committee (“Committee”) over Church’s affairs with full authority under the BOCO. Reverend Suk Ho Jin (“Jin”), the then-moderator of LA Presbytery, presided over the March 13, 2018 presbytery meeting. Ko Decl., ¶2; Lim Decl., Ex. 6. The Committee acted on behalf of LA Presbytery in dealing with Church matters, including its pastor, session, officers, members, and property. Id. Jin was appointed as the chair of the Committee, and Ko was the then-vice moderator of the LA Presbytery and served as the vice-chair of the Committee. Id.

On March 14, 2018, the Committee, acting on behalf of LA Presbytery, held a meeting and removed Church’s then-pastor, Geon Oh Seo, from all pastoral duties and authorities, pursuant to Chapter 9 (The Presbytery), Article 6 (Duties), subd. 1, p. 52 of BOCO. Ko Decl., ¶3; Lim Decl., Ex. 6. In the absence of a moderator (and pastor) for the Church, the Committee appointed Ko as Church’s interim moderator, effective March 14, 2018. Id.

Since March 14, 2018 until Church’s November 17, 2019 withdrawal from WKPC, Ko was the duly appointed as an interim moderator of Church’s Session, and that appointment was never revoked, modified, or altered. Ko Decl., ¶4, Ex. 19. From March 14, 2018 through October 31, 2019, the Board (or Session) consisted of Ko, (appointed as moderator by LA Presbytery), Elder Kim (elected in April 1997), and Yun (elected in May 2002). Ko Decl., ¶4; Elder Kim Decl., ¶22.

Yun was removed by a vote of the Session as of October 31, 2019 for petitioning Hapdong to appoint Defendant Choi as senior pastor. Elder Kim Decl., ¶22, Ex. 19. Thereafter, the Session consisted of Ko as moderator and Elder Kim as clerk. Id.

Church terminated its affiliation with WKPC at a special congregational meeting on November 17, 2019. Elder Kim Decl., ¶13. At the time, Church’s affairs were subject to the governing rules set forth in the BOCO and its Articles and Bylaws. Id. There is no provision in BOCO which prevented Church from terminating its affiliation with WKPC and Church’s withdrawal from WKPC was done in compliance with BOCO’s provisions. Id.

Specifically, pursuant to Chapter 19 (Meetings), Article 1 (Congregational Meetings), subd. 2 (Calling the Meeting), p. 70 of the BOCO, a congregational meeting shall be convened by the Session when the Session deems it necessary, or when a request is made by the Board, by one-third of the communicant members, or by the higher court. Elder Kim Decl., ¶14, Ex. 4, p.70. On November 9, 2019, the Session was convened and decided to call a special congregational meeting for Sunday, November 17, 2019, immediately following the regular 2:30 p.m. service (the “November 9 Resolution”). Both Ko and Elder Kim were present at the November 9 session meeting. Elder Kim Decl., ¶14. Ko was the moderator and Elder Kim was the clerk of the Session at the meeting. Id., Ex. 20.

The BOCO required the Session to give public notice of the meeting to the congregation, stating the date, the place, and the agenda of the meeting, one week in advance. In conformity with the November 9 Resolution, the Notice of the November 17 congregational meeting was announced to the congregation in the November 10, 2019 weekly worship bulletin, stating that a special congregational meeting shall be convened on the next Sunday, November 17, 2019, following the 3:30 p.m. service at a chapel for purposes of Pastoral Calling of Ko and Withdrawal from the WKPC denomination. Elder Kim Decl., ¶15, Exs. 21, 22. The Notice of the November 17 congregational meeting was further noticed in the November 17, 2019 weekly worship bulletin. Elder Kim Decl., ¶15, Ex. 22.

At the November 17 congregational meeting, nine of ten regular members, including Elder Kim, were present. This number constituted a quorum per the BOCO, which provides that a quorum shall consist of those in attendance at the appointed time. Elder Kim Decl., ¶16, Ex. 23. Pursuant to the LA Presbytery’s resolution(s) of March 14 and 18, 2018 (Lim Decl., Ex. 6), Ko had been an interim moderator of the Session since March 2018 and was still moderator at the November 17, 2019 congregational meeting because no pastor had been installed for Church. Elder Kim Decl., ¶18. Although Yun had been the Session’s clerk, he was removed as of October 31, 2019. Elder Kim Decl., ¶18. Elder Kim became the clerk of the Session and was the clerk on November 17. Id.

At the November 17 congregational meeting, Church adopted the following resolutions effective that date: (1) Church ceased its affiliation with WKPC and withdrew therefrom; (2) Ko was called and accepted as senior pastor of Church; and (3) Church shall operate as an independent Presbyterian church until the Board decides otherwise. Elder Kim Decl., ¶20. Pursuant to the November 17 resolution, Church – without affiliation with or interference by any national church – is managed by its Board in conformity with the Articles and Bylaws and has been from November 17, 2019 to the present date. Elder Kim Decl., ¶21; Ko Decl., ¶5.

As a result of Yun’s removal from the Session on October 31, 2019, the Board (Session) needed to appoint a director to meet the minimum number of directors under Article I, Section 5 of the Bylaws. Elder Kim Decl., ¶24; Ko Decl., ¶¶ 8-9. Immediately following the November 17 congregational meeting, Ko as Church’s President, called a special meeting of the Board on November 17, 2019, pursuant to Article II, Section 10 of the Bylaws. Elder Kim Decl., ¶25, Ex. 24; Ko Decl., ¶10; Ra Decl., ¶2. At the special board meeting, the Board appointed Ra to fill Yun’s vacancy until the next annual election. Id. Due to COVID 19 pandemic, Church has not been able to call and hold the annual election to date. Id.

Church’s Articles make no reference to its affiliation with a particular national church, other than that its specific and primary purposes are to organize and operate a Christian church of denominational faith exclusively for religious and charitable purposes. Elder Kim Decl., ¶26, Ex. 2. Since its organization in 1972 to date, Church – whether being affiliated with any national church or not – has always operated in conformity with the Presbyterian faith and practice based upon The Westminster Confession of Faith and Catechism. Id.

The Session has been, and acted as, the Board. Elder Kim Decl., ¶27. For instance, the founding pastor, Defendant Seung Kim and Elders Chong Sik Lee and Young Chul Shin, who were among the initial incorporators, were installed as pastor and elder on December 15, 1974. Id. Thereafter, Church regularly elected elders, including Elder Kim in April 1997 and Yun in May 2002. Id., Ex. 5. By the time of Church’s prior governance dispute in 2018 concerning the then pastor Geon Oh Seo and director Yong Ki Kim, Church’s Board (Session) included three serving elders: Elder Kim, Yun, Yong Ki Kim and then pastor Geon Oh Seo. Id.

Elder Kim was elected and installed as an elder of the Church in April 1997, at which time the Church was an independent Presbyterian church. Elder Kim Decl., ¶28, Ex. 5. Since his election and installation in April 1997 to date, Elder Kim has been a member of the Board. Id. No term limit for directors is provided under Article II, Section 7 of the Bylaws. Id., Ex. 23. Further, at the November 17 congregational meeting, Church decided it would be maintained as an independent Presbyterian church, a California non-profit religious corporation and that the Session is to be the governing body of Church. Id. Elder Kim was duly elected as a director of Church pursuant to the Bylaws and is still a director. Id.

Ko is a member of Church’s Board and President by virtue of his position as senior pastor. Ko Decl., ¶6. From March 14, 2018 through November 17, 2019, Ko, as an interim moderator of Church appointed by LA Presbytery of WKPC, was a member of Church’s Board. Id. Since Church’s November 17, 2019 withdrawal from WKPC, Ko, as senior pastor, has remained a member of Church’s Board. Id.

2. Defendants’ Evidence[7]

Yun has been a member of Church for more than 38 years and was elected as a ruling elder in 2002. Yun Decl., ¶1. Yun has served as a member of the Session, the governing body of Church, for more than 17 years. Id. Since 2014, Yun has been the Secretary/Clerk of the Session. Yun Decl., ¶2.

Church belonged to the LA Presbytery, a regional governing body of the national denomination WKPC. Yun Decl., ¶3. On November 5, 2019, Church severed its relationship with LA Presbytery and joined the California Presbytery (''Cal Presbytery''). Id. Both LA Presbytery and Cal Presbytery are presbytery members of WKPC. Id.

In March 2018, the LA Presbytery removed a former senior pastor and appointed Ko (to serve as an interim senior pastor. Yun Decl., ¶4. As an interim senior pastor, Ko became a member of the Session. Id. Since Ko’s appointment, the Session consisted of three people, Ko, Elder Kim, and Yun. Id.

On September 8, 2019, Yun, as Clerk of the Session, sent a letter to the LA Presbytery requesting that it appoint Church’s current assistant pastor, Defendant Choi, as a new interim senior pastor. Yun Decl., ¶11. Lee, as attorney for Church, met with Yun and other Session members on September 12, 2019 to discuss Choi’s appointment. Id. Yun expressed the reasons for Choi’s appointment, including that an overwhelming number of Church members had complained about Ko’s sermons. Yun Decl., ¶11. Lee reviewed documents relating to Choi’s appointment and expressed his legal opinion that the document Yun had prepared did not accurate reflect the decision of the Session. Id., Ex. 10. On October 15, 2019, Lee sent an email to the Session advising it as to the procedure in appointing a new senior pastor. Yun Decl., ¶12, Ex. 11.

On November 13, 2019, Choi informed Yun that he had received a letter from Lee stating there would be an ex parte hearing on November 15, 2019. Yun Decl., ¶13. Yun was unaware why Church would file suit against Choi. The Session never held a meeting approving a suit against Choi or authorizing Lee to commence a suit. Yun Decl., ¶¶ 13-14.

Church is presently divided into two factions, with one faction made up of Ko and Elder Kim and the other of Yun and Choi. Yun Decl., ¶18.

When the bankruptcy court appointed a Chapter 11 Trustee for Church, Chang Kim agreed to work for the Trustee in managing the Church property and handling its financial matters. Chang Kim Decl., ¶2. The Trustee has been paying Chang Kim a monthly salary. Id. As part of his duties, Chang Kim has been receiving offerings from Church members. Chang Kim Decl., ¶4. He received the offerings from Church members who follow Choi, but he has not received any offerings from Ko or the members who follow him. Id. Chang Kim turned all offerings over to the Trustee. Id.

Church also receives monthly rent payments from LAOD and small payments from an oil company, which Chang Kim collects and turns over to the Trustee. Chang Kim Decl., ¶5. Chang Kim has reviewed the Trustee’s monthly reports for the period from May 2020 to January 2021. Chang Kim Decl., ¶6, Exs. 1, 2. The Trustee’s reports show that the income from offerings is solely from Church members who have attended Choi’s services. Chang Kim Decl., ¶7, Exs. 1, 2.

There was no Church congregational meeting on November 17, 2019 and no announcement of any congregational meeting on November 10, 2019. Comp. Decls.[8] ¶2. Church members have never voted to withdraw Church’s affiliation with WKPC and Church is still a member of WKPC. Comp. Decls. ¶3.

Ko and Elder Kim have continued to attend LA Presbytery meetings as if KWPC is a member church of LA Presbytery of WKPC. Ho Kim Decl., ¶¶ 3-4; Ki Duck Park Decl., ¶¶ 3-4; Jong Kyu Lee Decl., ¶¶ 3-4. Although Ko was removed from LA Presbytery on November 23, 2019, he continues to claim that he is still a member. Kim Decl., ¶4; Jong Kyu Lee Decl., ¶5, Ex. 1.

At a January 26, 2021 informal discovery conference, Plaintiffs Ko, Kim, and Ra agreed to provide full code-compliant responses to interrogatories and requests for admission within 30 days. Kee Decl., ¶¶ 4-6. On February 26, 2012, Plaintiffs served their further responses. Kim Decl., ¶¶ 4-6, Exs. 7-8, 13-14, 19-20.

3. Reply Evidence

Church belonged to WKPC until its withdrawal on November 17, 2019. Ko Reply Decl., ¶2. Until then, Church was governed by the BOCO, the then-constitution and ordinances of WKPC. Id. Pursuant to Chapter 8, Article 5 of the BOCO, the Session, as the governing body of Church, was charged with the admission and dismissal of Church members. Ko Reply Decl., ¶3.

In early November 2019, Hapdong notified Ko that it had appointed Choi, the then-part-time associate pastor of the Church, as new senior pastor as of October 29, 2019. Id.

At the time, Church was a member church of the LA Presbytery. Id. Thereafter, the LA Presbytery notified Ko that Choi, Yun, and Seung Kim had held a special congregational meeting on November 5, 2019 and withdrew from the LA Presbytery of WKPC. Id. A group of Church members left the Church and followed Choi. Id. The Session dismissed those members as of November 5, 2019. Id.

None of the 31 KWPC members who claim to have not been notified of the November 17, 2019 meeting ever attended Sunday worship services presided over by Ko from November 1, 2019 to date. Ko Reply Decl., ¶5. None attended worship service on November 10, 2019 when the notice of the November 17, 2019 special congregational meeting was announced as well as provided in the weekly bulletin dated November 10, 2019. Id. Nor did any attend worship service on November 17, 2019 when Church convened the special congregational meeting to withdraw from WKPC. Id.

D. Analysis

Plaintiffs Church, Ko, Kim, and Ra move for move for a determination pursuant to section 9418 that Church’s Board consists of Plaintiffs Ko, Kim, and Ra who were validly elected or appointed. Defendants Choi, Chang Kim, Seung Kim, and Hapdong oppose.

1. Scope of the Section 9418 Trial

Defendants wrongly refer to the instant motion as seeking summary judgment. Opp. at 1. They also wrongly suggest that the motion seeks to set a hearing date under section 9418. Opp. at 6. As Plaintiffs reply (Reply at 2-3), on December 15, 2020 the court granted Plaintiffs’ motion to fix a hearing date and the hearing for the instant date. The hearing is a section 9418 trial to determine the validity of the appointment or election of Ko, Kim, and Ra as Church’s directors. There will be no other proceeding on this narrow issue.

This section 9418 trial concerns only a single issue: the valid appointment or election of Ko, Kim, and Ra as Session members. The trial of the validity of a director’s appointment or election, which is conducted solely on paper, cannot be expanded to undermine a party’s jury right or right to live testimony on other claims. For this reason, and despite Plaintiffs’ suggestion to the contrary (Mot. at 8), the court will not address who should be the current members of the Session. Nor will the court address the validity of Church’s November 17, 2019 withdrawal from WKPC or the WKPC General Assembly’s June 2020 ratification of the removal and expulsion of Ko and Ra, and of Choi’s installation as Church’s pastor. Those factual issues are hotly disputed and must be addressed in the main trial before the I/C court.

2. Procedural Issues

Defendants assert that the motion should be denied as procedurally defective because (1) it is based on the unfiled proposed FAC, which is not the operative pleading and does not seek any relief under section 9418, (2) Church has no standing to seek the requested relief, and (3) section 9418 is not applicable.

a. The Proposed FAC

Defendants assert that the motion is improperly based on the proposed FAC (Def. RJN Ex. 22), which was never filed and is materially different from the filed FAC. Opp. at 5-6. Defendants also contend that the court cannot grant relief pursuant to section 9418 because neither the proposed FAC nor the filed FAC seek relief pursuant to section 9418 and only request declaratory and injunctive relief. Opp. at 6-7.

Defendants’ claim that the motion is based on the proposed FAC rather than the filed FAC is untenable. While not entirely clear, Defendants’ argument appears to be that the notice of motion and motion filed on July 7, 2020 state that the motion is based on the proposed FAC. Opp. at 4, n.3. While true, that is only because the FAC had not yet been filed. The I/C court granted leave to file the FAC on July 28, 2020 (Def. RJN Ex. 24) and the FAC was filed on August 6, 2020. Plaintiffs’ memorandum in support of the motion was filed on January 13, 2021, long after the FAC was filed, and does not refer to the proposed FAC. As such, the motion is based on the then filed FAC.[9]

As for Defendants’ claim that the filed FAC fails to seek relief pursuant to section 9418, the FAC expressly states that it seeks the court’s determination, pursuant to section 9418, that the Ko Faction has the right to possess, manage and control its real and personal property of the Church. FAC ¶15. The FAC’s prayer then seeks relief that the Ko Faction has the right to possess, control, and manage KWPC’s property. While Plaintiffs should have provided better notice by pleading a separate section 9418 count and seeking relief under that law, Defendants received sufficient notice of the claim.

b. Standing

Defendants argue that the motion must be denied because it is brought solely by Church, which does not have standing to seek section 9418 relief. Opp. at 5, 7-8. Defendants also note that the bankruptcy Trustee alone is authorized to act on Church’s behalf. Opp. at 7. The motion was filed without the Trustee’s approval and the parties stipulated that Church was to remain neutral. Opp. at 7-8. Because Church must be neutral, there is no justiciable controversy and the Church has no standing. Id.

Defendants are correct with respect to Church, both under section 9418 and the Trustee’s authority. Church cannot seek the validity of the appointment or election or director under section 9418; only a director, member, or person with a right to vote can do so. Church is none of these. Additionally, Church lacks the Trustee’s authority to file this motion.[10]

However, Church in not the only Plaintiff bringing this motion. Defendants make a conclusory claim that Church is the only moving party (Opp. at 6) and appear to be relying on Plaintiffs’ July 7, 2020 notice of motion, which states: “[C]ounsel for Plaintiff [KWPC] will, and hereby does, move this Court for an order fixing a hearing date to determine the validity of purported removal, election, or appointment of directors of [KWPC]...pursuant to California Corporations Code...section 9418.”

As discussed ante, Ko, Elder Kim, and Ra were not yet added Plaintiffs when the notice of motion was filed. But Ko, Elder Kim, and Ra were added as Plaintiffs in the FAC filed on August 6, 2020. Plaintiffs’ memorandum filed on January 13, 2021 clearly states that Plaintiffs Church, Ko, Elder Kim, and Ra seek a determination that Church’s Board consists of Ko, Elder Kim, and Ra as validly elected or appointed. Mot. at 5. While Church has no standing, the individual Plaintiffs do have standing to seek section 9814 relief.

2. Merits

Plaintiffs argue that the court should determine that Church’s Board (Session) consists of Ko, Elder Kim, and Ra and has consisted of those three members from November 17, 2019 to date. Mot. at 15.

Plaintiffs present a detailed history of Church, which was organized in 1972 as an independent Presbyterian church and registered as a California non-profit religious corporation. For over 30 years, from its organization in 1972 until 2003, Church operated as an independent Presbyterian church without affiliation with any national church, and not controlled by any higher ecclesiastical governing bodies commonly known as presbyteries and general assembly. Church’s affairs were conducted by the Board pursuant to its Articles and Bylaws without any interference, control, and/or directions from any higher ecclesiastical governing bodies.

Church’s Articles provide that it is a non-profit corporation operated exclusively for religious and charitable purposes. The authorized number and members of Church and their voting rights are set forth in the Bylaws.

The Session always has acted as Church’s Board. The Bylaws provide that the corporation’s business shall be conducted by a Board of no more than 12 and no less than three persons. A quorum of Board members shall be not less than three and business shall be conducted by a majority vote of the Board. The term of a Board member shall be determined by the Board. Members of the Board shall be elected by the regular members of the corporation with such qualifications as determined by the regular members. Each regular member shall have one vote at all meetings of members. All memberships shall be for the life of such member or until otherwise terminated.

Vacancies on the Board shall be filled by the Board as they occur, and a person chosen as Board member shall serve until the next annual election. A special meeting of the Board may be called by the President at any time as may be necessary.

In 2003, Church joined the LA Presbytery a regional governing body of the national church, KAPC. During Church’s affiliation with KAPC from 2003 through 2014, its affairs were conducted by the Session -- which is analogous to the Board -- pursuant to the BOCO as well as Church’s Articles and Bylaws. Under KAPC, the Session consisted of pastor(s) and elder(s). In 2014, Church withdrew its membership from KAPC.

On February 16, 2014, Church joined WKPC, a newly organized national church that was a spin-off from KAPC. Both KAPC and WKPC adopted the BOCO as their respective constitution for faith and polity.

At a March 13, 2018 meeting, the LA Presbytery of WKPC commissioned a Committee over Church’s affairs with full authority under the BOCO. The Committee acted on behalf of LA Presbytery in dealing with Church matters, including its pastor, session, officers, members, and property. On March 14, 2018, the Committee held a meeting and removed Church’s then-pastor, Geon Oh Seo. In the absence of a moderator (and pastor), the Committee appointed Ko as Church’s interim moderator, effective March 14, 2018.

From March 14, 2018 until Church’s November 17, 2019 withdrawal from WKPC, Ko was the duly appointed as an interim moderator of the Session and that appointment was never revoked, modified, or altered. Ko Decl., ¶4, Ex. 19. From March 14, 2018 through October 31, 2019, the Board (Session) consisted of Ko, (appointed as moderator by LA Presbytery), Elder Kim (elected in April 1997), and Yun (elected in May 2002). Ko Decl., ¶4; Elder Kim Decl., ¶22.

Yun was removed by a vote of the Session as of October 31, 2019 for petitioning Hapdong to appoint Defendant Choi as senior pastor. Elder Kim Decl., ¶22, Ex. 19. Thereafter, the Session consisted of Ko as interim moderator and Elder Kim as clerk. Id.

As a result of Yun’s removal, the Session needed to appoint a director to meet the Bylaws’ minimum number of three directors. Elder Kim Decl., ¶24; Ko Decl., ¶¶ 8-9. Immediately following the November 17 congregational meeting, Ko, as Church’s President, called a special meeting of the Board pursuant to Article II, Section 10 of the Bylaws. Elder Kim Decl., ¶25, Ex. 24; Ko Decl., ¶10; Ra Decl., ¶2. At the special meeting, the Board appointed Ra to fill Yun’s vacancy until the next annual election. Id. Due to COVID 19 pandemic, Church has not been able to call and hold the annual election to date. Id.

Plaintiffs also present evidence that, at a November 17, 2019 congregational meeting, Church adopted the following resolutions: (1) Church ceased its affiliation with WKPC and withdrew therefrom; (2) Ko was called and accepted as senior pastor of Church; and (3) Church shall operate as an independent Presbyterian church until the Board decides otherwise. Elder Kim Decl., ¶20. Pursuant to the November 17 resolution, Church has been managed by its Board in conformity with the Articles and Bylaws to the present date. Elder Kim Decl., ¶21; Ko Decl., ¶5.

As a result of this evidence, Plaintiffs assert they have established that: (1) Ko has been a member of the Board since his appointment as interim moderator since March 14, 2018 and was elected as senior pastor at the November 17, 2019 meeting; (2) Elder Kim has been a member of the Board since his election and installation as an elder of the Church in April 1997; and (3) Ra is and has been a member of the Board since his appointment to fill Yun’s vacancy at a special board meeting on November 17, 2019. Mot. at 16-18.[11]

Defendants do not dispute the validity of the appointments of Ko and Elder Kim appointment as Board members. Nor do they challenge Plaintiffs’ compliance with the Bylaws concerning the removal of Yun from the Session, the need for the Session to appoint a director to fill the three-director minimum, and the adequacy of the notice for a special Board meeting on November 17, 2019 pursuant to Article II, Section 10 of the Bylaws to appoint Ra to fill Yun’s vacancy until the next annual election. Elder Kim Decl., ¶25, Ex. 24; Ko Decl., ¶10; Ra Decl., ¶2.

Instead, Defendants contend that the motion should be denied because more than 30 Church members were not notified of the November 17, 2019 congregational meeting (Opp. at 8-9), Plaintiffs have provided evasive discovery responses to conceal the fact that the November 17, 2019 meeting never occurred (Opp. at 9-12), Ko was not elected but was only appointed by WKPC, and WKPC’s General Assembly confirmed the removal and expulsion of Ko and Ra on June 2, 2020. Opp. at 12-13.[12]

None of these defenses affect the narrow issue to be decided, which is whether Ko, Ra, and Elder Kim were validly appointed or elected to the Board (Session). The fact that Ko was appointed and not elected is irrelevant because either suffices for a section 9148 determination. The court concludes that all of Ko, Elder Kim, and Ra were validly appointed or elected.

Obviously, this conclusion does not resolve the principal dispute between the parties, which concerns not so much the appointments/elections of Ko and Elder Kim or the November 17, 2019 Board meeting at which Ra was appointed to fill a director vacancy, but rather the purported congregational meeting on the same date at which Church withdrew from WKPC and the effectiveness of the General Assembly’s June 2, 2020 ratification of LA Presbytery’s November 23, 2019 decision to remove and expel Ko and Ra and confirmation that Church properly had withdrawn from LA Presbytery and joined California Presbytery. Opp. at 13.

Defendants raise a question whether the November 17, 2019 withdrawal ever occurred. Defendants have declarations from 31 Church members that they never received any notice of a congregational meeting and Defendants also note that Plaintiffs’ declarations shortly after that date fail to mention the November 17 congregational meeting.

Plaintiffs explain that none of the declarants states that he or she attended Ko’s worship service held on November 10 or 17, 2019. Reply at 8-9. If they had, they would have seen the worship bulletins for those dates. Elder Kim Decl., Exs. 21-22. The minutes of the November 9 Session meeting and November 17, 2019 congregational meeting support of Plaintiffs’ claim that the November 17, 2019 meeting actually occurred. Elder Kim Decl., Exs. 20, 23.

Even if the November 19, 2019 congregational meeting occurred, there is a question whether it was properly noticed. The BOCO requires “public notice” of a congregational meeting. Elder Kim Decl., ¶11, Ex. 4, p. 70. It seems plain that notice was given only to the Ko Faction in the church bulletin for Ko’s worship service and not also to the church bulletin for Choi’s worship service. This may well not be the public notice that is required; the notice certainly could have been posted in Church’s facility.

Plaintiffs explain that the Session dismissed the Choi Faction’s members as of November 5, 2019. Ko Reply Decl., ¶3. Therefore, notice to the Choi Faction was not required. Plaintiffs provide no documentary evidence of the dismissal or who was dismissed.

The court will not address these factual issues, which concern the removal of Ko and Ra from the Board, not their appointment or election. As such, these are issues for trial of the remaining claims.

E. Conclusion

The motion for a determination pursuant to section 9418 is granted. Plaintiffs Ko, Elder Kim, and Ra were duly elected or appointed to the Board (Session). Whether they were properly removed by the LA Presbytery and/or WKPC’s General Assembly or currently remain as directors is an issue for trial of the main case.


[1] All statutory references are to the Corporations Code unless otherwise stated.

[2] Defendants’ 23-page opposition greatly exceeds the 15-page limit of CRC 3.1113(d). There have been multiple law and motion matters in the case -- three in Department 85 alone (a TRO/OSC, motion to reconsider, and motion to set section 9418 hearing) – and defense counsel should know the page limits of CRC 3.1113(d). In lieu of declining to consider the opposition at all, the court has exercised its discretion to consider only the first 15 pages. The court also has not considered the opposition’s footnotes because they do not meet the 12-point type requirement of CRC 2.104.

[3] While Church provided a courtesy copy of its reply, it was not filed. The 11-page reply exceeds the ten-page limit of CRC 3.1113(d) and the court has read and considered only the first ten pages.

[4] “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.” §9411(b).

[5] The court has ruled on the parties’ written objections, and the clerk is ordered to scan and electronically file the rulings.

[6] Plaintiffs request judicial notice of (1) the fact that Church filed the instant lawsuit on November 6, 2019, at which time Ko, Elder Kim, and Ra were not named Plaintiffs; (2) the FAC (Lim Decl., Ex. 1); (3) Church’s Articles of Incorporation (Elder Kim Decl., Ex. 2); (4) the fact that Church’s Articles of Incorporation have never been amended; (5) Church’s Bylaws (Elder Kim Decl., Ex. 3); (6) Church’s history in its 2017 directory (Elder Kim Decl., Ex. 5); (7) the fact that Church filed a lawsuit on March 20, 2018, captioned Korean Western Presbyterian Church v. Geon Oh Seo, et al., under LASC case number BC698722 (the “First Action”); (8) the declarations of Won Moo Lee, Suk Ho Jin, and Joo Mo Ko filed in the First Action on March 22, 2018 in support of Church’s ex parte application for TRO and OSC (Exs. A-C); (9) declarations of Geon Oh Seo, Chris Hwang, Joyce Park, Won Bae Park aka Tony Park, and Jiyoung Kym filed in Opposition to the OSC in the First Action (Lim Decl., Ex. 7); (10) the FAC filed in the First Action (Lim Decl., Ex. 8); (11) the court’s March 22, 2018 order granting Church’s ex parte application for a TRO/OSC in the First Action (Lim Decl., Ex. 9); (12) the court’s May 8, 2018 decision issuing a preliminary injunction in the First Action (Lim Decl., Ex. 10); (13) a June 13, 2019 minute order granting Church’s motion for summary judgment in the First Action (Lim Decl., Ex. 12); (14) a July 26, 2019 Notice of Entry of Judgment of Permanent Injunction filed in the First Action (Lim Decl., Ex. 12); (15) the November 15, 2019 TRO/OSC in the instant case (Lim Decl., Ex. 13); (16) the court’s January 16, 2020 decision granting Church’s application for a preliminary injunction (Lim Decl., Ex. 14); (17) Church’s April 8, 2020 Statement of Information filed with the Secretary of State (Lim Decl., Ex. 15); (18) the fact that Church filed a voluntary chapter 11 bankruptcy petition in the Central District of California on February 14, 2020; (19) the fact that Church filed a Notice of Stay of Proceedings on February 18, 2020; (20) the bankruptcy court’s April 21, 2020 Memorandum Decision re: Automatic Stay (Lim Decl., Ex. 16); (21) the bankruptcy court’s April 21, 2020 Memorandum Decision re: Trustee Appointment (Lim Decl., Ex. 17); (22) the court’s December 15, 2020 decision granting reconsideration and denying motion on the merits (Lim Decl., Ex. 18); (23) a December 15, 2020 Notice of Ruling that the court granted Church’s motion to set a section 9418 hearing date for April 8, 2021 (Lim Decl., Ex. 18); (24) Church’s Statement of Designation filed with the California Secretary of State on July 31, 2013 (Lim Decl., Ex. 25); (25) the Articles of Incorporation of World Korean Presbyterian Church (“WKPC”) (Lim Decl., Ex. 26); (26) the Articles of Incorporation of Hapdong (Lim Decl., Ex. 27); (27) a declaration of Jong Suk Choi previously submitted in opposition to Church’s request for preliminary injunction in the instant action (Lim Decl., Ex. 28); (28) a declaration of Nathanael Yun, previously submitted in opposition to Church’s request for preliminary injunction in the instant action (Lim Decl., Ex. 29); (29) a declaration of Bocheon Seo submitted in opposition to Church’s request for preliminary injunction in the instant action (Lim Decl., Ex. 30); (30) a declaration of Suk Ho Jin submitted in opposition to Church’s request for preliminary injunction in the instant action (Lim Decl., Ex. 31); (31) a declaration of Ki Duk Park submitted in opposition to Church’s request for preliminary injunction in the instant action (Lim Decl., Ex. 32); (32) a declaration of Jung Gi Na submitted in opposition to Church’s request for preliminary injunction in the instant action (Lim Decl., Ex. 33); and (33) a declaration of Bocheon Seo submitted in support of Defendants’ motion to reconsider the court’s January 16, 2020 order in the instant action (Lim Decl., Ex. 34).

There is no need to judicially notice documents from the case file (Exs. 1, 2, 13-14, 16, 18 (both exhibits), 22-23, and 28-34) because a judge can always review the file for the case at hand. The court declines to judicially notice any of the requested “facts” (Requests 1-7, 16-26). Exhibits 2, 3, 5, 4-6, and 26-27 are not subject to judicial notice and the requests are denied. The existence of Exhibits A-C, 7-12, 13-14, and 16-17, but not the truth of their contents, is judicially noticed. Evid. Code §452(d); Sosinsky v. Grant, (1992) 6 Cal.App.4th 1548, 1551 (judicial notice of findings in court documents may not be judicially noticed). The request is granted as to Exhibits 15 and 25. Evid. Code §452(c).

[7] Defendants request judicial notice of the following: (1) Plaintiffs’ November 15, 2019 ex parte application for TRO/OSC (Ex. 1); (2) Plaintiff’s opposition to Defendant Choi’s November 26, 2019 ex parte application for termination of TRO (Ex. 2); (3) Plaintiffs’ December 5, 2019 memorandum in support of preliminary injunction (Ex. 3); (4) a Ra declaration filed in support of Plaintiffs’ application for preliminary injunction (Ex. 4); (5) an Elder Kim declaration filed in support of Plaintiffs’ application for preliminary injunction (Ex. 5); (6) a Ko declaration #2 filed in support of Plaintiffs’ application for preliminary injunction (Ex. 6); (7) Plaintiffs’ reply for application for preliminary injunction (Ex. 7); (8) Defendants’ compendium of declarations filed in opposition to Plaintiffs’ application for preliminary injunction (Ex. 8); (9) the court’s January 16, 2020 tentative decision granting the application for preliminary injunction (Ex. 9); (10) Plaintiffs’ opposition to Hapdong’s ex parte application for reconsideration of the preliminary injunction (Ex. 10); (11) a Lee declaration in support of opposition to emergency motion to dismiss Chapter 11 case in the bankruptcy court (Ex. 11); (12) a reporter’s transcript of the February 21, 2020 proceedings in the instant case (Ex. 12); (13) a Yun declaration in support of Hapdong’s opposition to Plaintiff’s application for preliminary injunction (Ex. 13); (14) WKPC’s Statement of Information filed May 27, 2020 (Ex. 14); (15) an Elder Kim declaration filed in opposition to Defendants’ motion to disqualify Lee as Plaintiffs’ counsel (Ex. 15); (16) the bankruptcy court’s memorandum decision to appoint Chapter 11 Trustee (Ex. 16); (17) the bankruptcy court’s memorandum decision that the automatic stay covers state court litigation and modifying the stay so that litigation may proceed (Ex. 17); (18) a stipulation entered into between the bankruptcy trustee and Plaintiffs’ counsel in the bankruptcy court (Ex. 18); (19) a Seo declaration in support of Defendant’s ex parte application (Ex. 19); (2) Exhibits 9-12 of the Elder Kim declaration filed on October 29, 2020 (Ex. 20); (21) the preliminary injunction entered on January 16, 2020 (Ex. 21); (22) Plaintiffs’ proposed FAC (Ex. 22); (23) Plaintiff’s filed FAC (Ex. 23); (24) the court’s July 28, 2020 decision granting Plaintiffs’ motion for leave to amend (Ex. 24); and (25) Plaintiffs’ opposition to Defendants’ motion for reconsideration (Ex. 25).

There is no need to judicially notice documents in the instant case file (Exhibits 1-10, 13, 15, 19-25) because the judge can always review the file for the case at hand. The court cannot judicially notice a reporter’s transcript (Ex. 12), but a transcript from the pending case may always be considered just like the court file. The request is granted as to the existence of the remaining exhibits (Exs. 11, 14, 16-18), but not the truth of their contents. Evid. Code §452(d); Sosinsky v. Grant, supra, 6 Cal.App.4th at 1551.

[8] Defendants submitted a Compendium of Declarations containing 31 declarations by KWPC members. Most of these declarations contain certain identical statements and are cited collectively for those statements.

[9] Defendants note that the filed FAC is shorter than the proposed FAC and attaches fewer exhibits. Opp. at 4. Since Plaintiffs’ memorandum is based on the filed FAC, the differences are immaterial.

[10] Defendants also argue that Church failed to exhaust remedies by asking WKPC for a ruling. Opp. at 6. Plaintiffs note that there is no provision in the BOCO prohibiting it from withdrawing from WKPC or requiring WKPC’s approval for such a withdrawal. Reply at 3.

[11] Plaintiffs assert that the court has previously considered and rejected all of Defendants’ arguments against the validity of Ko, Elder Kim, and Ra’s positions on the Board. Defendants specifically contended that (a) Hapdong replaced Ko with Defendant Choi as interim moderator and senior pastor as of October 29, 2019, (b) Church led by Choi withdrew from the LA Presbytery on November 5, 2019, (c) Ko’s appointment by the LA Presbytery was terminated as of November 5, 2019, and (d) the LA Presbytery’s expulsion of Ko and Ra on November 23, 2019 was affirmed by the General Assembly in June 2020. Mot. at 19. Plaintiffs note that the court ruled on Church’s application for a preliminary injunction and Defendants’ motion for reconsideration that (1) Hapdong’s appointment of Choi as interim moderator had no effect on Church’s governance, (2) Church’s withdrawal from LA Presbytery led by Choi was ineffectual, and (3) the General Assembly’s ratification of the dismissal of Ko and Ra had no effect on Church’s governance. Mot. at 19-21; Lim Decl., Exs. 14, 18.

It is true that the court made these rulings, but a court’s ruling on a preliminary injunction is not a binding factual determination for trial. Yee v. American National Insurance Co., (2015) 235 Cal.App.4th 453, 457-58 (preliminary injunction does not determine merits unless it is a pure issue of law). As a result, both sides were free to present new or different evidence on any issue pertinent to section 9418, and both sides remain able to present such evidence at the trial of the remaining claims so long as it is not foreclosed by the section 9418 determination.

[12] In the unconsidered portions of their opposition, Defendants argue that Plaintiffs are taking a contradictory position from that which was previously advocated. Plaintiffs now say that Church withdrew from WKPC on November 17, 2019, but through February 21, 2020 Plaintiffs contended that Church is a member of WKPC, as shown by the following: (a) declarations of Ko and Ra filed on December 4, 2019, which state that Ra and Choi were appointed as acting members of the Session on November 1, 2019. Opp. at 16; Def. RJN Exs. 4, 6. Since Choi was not in attendance, the November 9, 2019 Session meeting was a sham. Opp. at 16-17; (b) the November 10, 2019 weekly bulletin could not have been distributed because the Ko Faction claimed that Defendants verbally harassed them on November 3 and 10, 2019, respectively. Opp. at 17; (c) Plaintiff’s November 15, 2019 ex parte application did not mention that there had been a November 9 Session meeting calling for a November 17, 2019 congregational meeting. Opp. at 17; (d) Plaintiffs’ November 26 and December 5, 2019 court filings also never mention the November 17, 2019 meeting, yet they discuss November 18 and 23 LA Presbytery meetings. Opp. at 18-19; (e) Plaintiff’s January 9, 2020 declarations claim that Church is a member of the LA Presbytery of WKPC and do not refer to the November 17, 2019 meeting. Opp. at 19-20; (f) as a result of Plaintiffs’ declarations, the court’s preliminary injunction ruling concluded that Church is a member of WKPC. Opp. at 20; and (f) on January 24, 2020, Plaintiffs filed declarations in opposition to Defendants’ ex parte application for reconsideration which fail to refer to the November 17, 2019 meeting. Opp. at 21.

Case Number: 19STCV40062    Hearing Date: March 9, 2021    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

KOREAN WESTERN PRESBYTERIAN CHURCH OF LOS ANGELES,

vs.

JONG SUK CHOI aka OLOF J. CHOI, et al.

Case No.: 19STCV40062

[Related Case: 19STCV36339]

Hearing Date: March 9, 2021

Plaintiffs’ motion for reconsideration is denied.

Plaintiffs Korean Western Presbyterian Church of Los Angeles (“KWPC”), Joo Mo Ko (“Ko”), Bong Kyu Kim (“Elder Kim”), and Muyng Chul Ra (“Ra”) (collectively “Plaintiffs”) move for reconsideration of the Court’s December 17, 2020 ruling (“Ruling”) granting the motion of then-Defendants Rev. Jong Suk Choi aka Olaf J. Choi (“Choi”), Nathanael Yun aka Neung Gu Yun (“Yun”), and The Western Presbytery of the Hapdong in USA (“Hapdong”) to disqualify W. Dan Lee (“Counsel Lee”) and his firm METAL Law Group, LLP (collectively “Counsel”) as attorney of record for Plaintiffs. (Notice of Motion, pgs. 1-2; C.C.P. §§1008, 128(a)(8).) While Defendants Chang Rok Kim (“Chang Kim”), and Samuel Kim aka Seung Gon Kim (“Rev. Kim”) were not parties to the original motion to disqualify, they join Defendants Hapdong and Choi in filing an opposition to the instant motion for reconsideration.

Plaintiffs’ 12/31/21 request for judicial notice is granted. (P-RJN, Nos. 1-4.) However, the Court will not take judicial notice of the truth of the matters asserted in the documents.

Defendants’ 2/24/21 request for judicial notice is granted. (D-RJN, Exhs. 1-15.) However, the Court will not take judicial notice of the truth of the matters asserted in the documents.

Background of Action and Instant Motion

This case involves a dispute as to the control of the governing body of the KWPC between the so-called “Ko Faction” and the so-called “Choi Faction”. (See FAC, ¶¶3, 8, 41-45.)

In March 2018, Yun and Plaintiffs Elder Kim and Ko were the governing body of the KWPC, known as the Session. In March 2018, the KWPC Session directed Counsel to file the lawsuit in Case No. BC698722 Korean Western Presbyterian Church v. Geon Oh Seo, et al., filed 3/20/18 in Department 62 (“the First Action”), which involved KWPC’s internal governance dispute over its property. Yun was not a plaintiff in the First Action. However, the First Action defendants filed a cross-complaint for defamation against KWPC and its governing members, and in defending against this cross-complaint, Counsel represented cross-defendants, including Yun. The cross-complaint was dismissed with prejudice. (5/20/19 Notice of Entry of Judgment in First Action.) The First Action was resolved in favor of KWPC when the Court granted its motion for summary judgment. (7/25/19 Notice of Entry of Judgment.)

On October 10, 2019, a new lawsuit relating to church governance was filed by former or current members of KWPC against KWPC, Yun, Elder Kim, Ko, Samuel Kim aka Seung Gon Kim (“Rev. Kim”) (Yun’s brother-in-law and KWPC’s founding pastor), LAOD, Park, Suk Ho Jin and Korean Western Presbyterian Church Foundation in Case No. 19STCV36339, captioned Kook Bong Lee, et al. vs. Nathanael Yun, et al. in Department 71 (“the Second Action”). Counsel appeared for KWPC, Ko, and Elder Kim; however, Yun and Rev. Kim retained separate attorneys, Carl Sohn and Steven Kim (“Sohn & Kim”), who had been representing Yun in the instant action prior to his dismissal, and still represent Rev. Kim in the instant action.

On November 6, 2019, KWPC filed the instant lawsuit for declaratory relief and injunctive relief against Choi, Park, Hapdong, LAOD, and Park, Case No. 19STCV40062, Korean Western Presbyterian Church v. Geon Oh Seo, et al. (the “instant action”), and to which Yun, Rev. Kim, and Chang Kim were added as defendants following the Court granting leave to amend on July 28, 2020, and the filing of the first amended complaint (“FAC”) on August 6, 2020. Notably, Plaintiff KWPC moved for leave to add Yun as a defendant in the amended pleading. The Court notes Sohn & Kim represent remaining defendants Rev. Kim, Chang Kim, Hapdong, and Choi in the instant action.

On October 28, 2020, Choi, Yun, and Hapdong filed the underlying motion to disqualify Counsel as Plaintiffs’ counsel. At the December 10, 2020 hearing on the motion, the Court took the matter under submission, and on December 17, 2020, the Court issued its Ruling on Submitted Matter. In its Ruling, the Court noted as a preliminary matter, Choi and Hapdong lacked standing to bring the motion to disqualify given they submitted no evidence suggesting they were ever represented by Counsel in a manner giving rise to an attorney-client relationship such that Counsel’s successive representation of Plaintiffs in the instant action was improper. (Ruling, pg. 4.) The Court granted the motion to disqualify on the grounds that Counsel’s then-representation of Plaintiffs and prior representation of Defendant Yun amounted to improper successive representation, for which Rule of Professional Conduct 1.9(a) required disqualification. (See Ruling, pgs. 4-5; see also Rule 1.9(a) [“A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed written consent.”].) Specifically, the Court found Yun presented evidence of the following: (1) the former matter in which Counsel represented Yun was substantially related to the current matter; (2) given their respective positions in the instant action, the interests of Counsel’s clients, Plaintiffs KWPC, Ko and Elder Kim, were adverse to those of Yun; and (3) Yun had not given informed written consent to Counsel’s then-representation. The Court also noted Counsel must refrain from taking part in factional disputes such as those that are at issue in the instant action. (Ruling, pg. 5, citing Goldstein v. Lees (1975) 46 Cal.App.3d 614, 622.) Accordingly, as of December 17, 2020, Counsel was disqualified as counsel, and the Court set a status conference on the representation of Plaintiffs.

On December 18, 2020, Counsel filed a request for dismissal of Yun, without prejudice, and a request for dismissal of Defendants LA Open Door Presbyterian Church (“LAOD”) and Hun Sung Park (“Park”), without prejudice, on behalf of Plaintiffs. On December 23, 2020, the Court entered the dismissals. On December 31, 2020, Attorneys S. Young Lim and Jessie Y. Kim of Park & Lim (collectively, “Park & Lim”) filed the instant motion for reconsideration on behalf of Plaintiffs. On February 24, 2021, Defendants Hapdong, Choi, Chang Kim, and Rev. Kim (collectively, “Defendants”) filed an opposition to the instant motion. On March 2, 2021, Plaintiffs filed their reply.

Procedural Issues

Defendants argue Counsel’s dismissal of Yun is improper and void because Counsel was disqualified on December 17, 2020, and therefore lacked authority to take any action on Plaintiffs’ behalf on December 18, 2020. (Opposition, pgs. 9-10.) Defendants only cite to authority in an “analogous situation” relating to whether a disqualified judge has any power to act in a proceeding after his or her disqualification for the position that the dismissal was void. Defendants have not cited authority supporting their position that the instant dismissal is void. In reply, Plaintiffs only address this argument in the context of refuting Defendants’ assertion the instant motion is not based on a new fact and assert the argument is one of “form over substance.” (Reply, pg. 8, fn. 1.) Plaintiffs also note they dispute that the dismissal of Yun is void. (Reply, pg. 8, fn. 1.) Defendants have not made a sufficient showing that the disqualification of Counsels renders the dismissal of Yun void. Even assuming, arguendo, the dismissal is void, Plaintiffs would seek to dismiss Yun and move for reconsideration on the same grounds as in the instant motion. Accordingly, in the interests of judicial efficiency, the Court finds the dismissal of Yun was not void as a result of Counsel’s disqualified status.

Defendants also argue the dismissal of Yun was improper because Yun is an indispensable party as a member of the KWPC Session governing body and the underlying dispute of the instant action is which faction, the Choi Faction or the Ko Faction, is the true governing body of the KWPC. (Opposition, pgs. 10-11, citing C.C.P. §389.) [The Court notes Defendants incorrectly assert the Court found Plaintiffs Ra, Kim, and Ko were indispensable parties in ruling on the motion for leave to file a FAC; however, the Court only acknowledged Defendants’ argument relating to Ra, Kim, and Ko, and, in light of KWPC’s request in reply to add Ra, Kim, and Ko as plaintiffs, granted the request, and no ruling as to the parties’ indispensability was issued. (Court’s 7/28/20 Ruling.)] Plaintiffs argue that where indispensable parties are not joined, the proper procedure is for the Court to take judicial notice of their absence, order them brought in, and dismiss the action without prejudice if they are not brought in, and on this basis argue Yun must be rejoined as a party or this case must be dismissed. (Opposition, pgs. 10-11, citing County of Los Angeles v. Superior Court of Los Angeles County (1941) 17 Cal.2d 707.) However, Defendants do not address how the holding in County applies to the instant action beyond standing for the general proposition that indispensable parties must be joined. Here, Defendants argue the indispensability of the dismissed Defendant Yun precludes Plaintiffs from dismissing Yun and/or using his dismissal as a “new fact” for the purposes of the instant motion for reconsideration. However, Defendants do not cite to authority supporting this position. In reply, Plaintiffs dispute Defendants’ contention that Yun is indispensable, and assert the only indispensable party is KWPC. (Reply, pg. 9.) Plaintiffs argue that if Defendants believe Yun is indispensable, they should move to join Yun as an indispensable party, and until such a motion is made, Yun’s dismissal is valid and provides proper grounds for the instant motion for reconsideration. (Reply, pg. 9.) The Court finds the potential that Yun is an indispensable party and will therefore be required to re-enter the instant action is not presently before the Court to bar Defendants’ from arguing his dismissal is a “new fact” for the purposes of the instant motion. In addition, Defendants have not filed a motion to add Yun as an indispensable party.

Defendants argue the instant motion must not be recognized because it was filed by Park & Lim, who have not substituted in as Plaintiffs’ counsel of record in the instant action following Counsel’s disqualification. (Opposition, pgs. 11-12.) Specifically, Defendants argue that pursuant to C.C.P. §285, a formal substitution of attorney must be filed for the Court to recognize Park & Lim as Plaintiffs’ counsel of record as opposed to Counsel. C.C.P. §285 provides that, “When an attorney is changed, as provided in [C.C.P. §284], written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party. Until then he must recognize the former attorney.” C.C.P. §284 provides that, “The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Emphasis added.) In reply, Plaintiffs argue C.C.P. §285 is not applicable because the attorney was not changed as provided in C.C.P. §284, involves a change of attorney upon consent or application resulting in an order of the Court. (Reply, pg. 9, C.C.P. §284(2).) Here, the change in counsel resulted from the Court’s granting Defendants’ motion to disqualify, not from Counsel or Plaintiffs’ application to change counsel, and as such, the requirements of C.C.P. §285 do not apply. Accordingly, the Court will recognize the motion notwithstanding its filing by Park & Lim.

Motion for Reconsideration

C.C.P. §1008(a) provides, as follows: “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

A party seeking reconsideration “must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time. If the trial court believes reconsideration is warranted, it can amend, modify or revoke its previous order.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457 (Citations Omitted).) The moving party for reconsideration must show that “it could not, with reasonable diligence, have discovered and produced [the evidence] at the time of the prior motion. A motion for reconsideration will be denied absent a strong showing of diligence.” (Forrest v. State of California Department of Corporations (2007) 150 Cal.App.4th 183, 203 (Citations Omitted).)

Plaintiffs move for reconsideration of the Court’s Ruling based on the new fact that Yun has been dismissed from the instant action. (Motion, pg. 5.) Plaintiffs argue the potential conflict based on the possibility that confidential information may be used to the detriment of a former client has been removed given Yun’s dismissal, and as such the grounds for granting the motion no longer exist. (Motion, pgs. 6-8.) Plaintiffs also argue there is (and was) no confidential information supporting Defendants’ motion to disqualify counsel, and as such, the Court should reconsider its motion to disqualify counsel even if Yun had not been dismissed. (Motion, pgs. 6-8.) However, this second argument is not based on new facts, and as such, it is not the proper basis for a motion for reconsideration pursuant to C.C.P. §1008.

Plaintiffs’ motion is not accompanied by an affidavit from Plaintiffs’ attorney of record stating, “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” Rather, Plaintiffs only file declarations of Plaintiffs Ko and Elder Kim and of Counsel, none of which set forth the requisite information for a Section 1008 motion.

Plaintiffs also did not establish new or different facts, circumstances, or law to warrant reconsideration. The only new fact on which Plaintiffs rely is that Yun has been dismissed from the action. However, the Court’s prior ruling was based both on Counsel’s successive representation of Yun, as well as the finding that Counsel must refrain from taking part in factional differences such as those at issue in the current action. Given the instant action centers on a factional dispute between individuals regarding the governance of KWPC, for Counsel, who previously represented Yun to effectively take the side of Plaintiffs Elder Kim and Ko against Defendant Yun in representing KWPC, Counsel has effectively taken a stance in the factional dispute.

In addition, while Plaintiffs assert the dismissal is a “new fact,” Plaintiffs do not dispute the dismissal could be reversed and Yun added as a party again in the event Defendants file a motion to add indispensable party. As such, while Yun’s dismissal is a new circumstance of the current procedural posture of the case, it does not amount to a new fact to warrant reconsideration of the Court’s prior ruling.

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

Dated: March _____, 2021

Hon. Monica Bachner

Judge of the Superior Court

Case Number: 19STCV40062    Hearing Date: December 15, 2020    Dept: 85

Korean Western Presbyterian Church of Los Angeles, et al. v. Jong Suk Choi, et al., 19STCV40062

Tentative decision on (a) motion to reconsider: granted: (b) decision after reconsideration: denied

Defendant the Western Presbytery of the Hapdong in USA (“Hapdong”) moves for reconsideration of the court’s January 16, 2020 ruling granting a preliminary injunction in favor of Plaintiff Korean Western Presbyterian Church of Los Angeles (“Church”) enjoining (1) Defendant Jong Suk Choi aka Olaf J. Choi (“Choi”) from using the Church’s name, logo, and website, and (2) Defendants Choi, Hapdong, and LA Open Door Presbyterian Church (“LAOD”) from interfering with Church’s possession and control of its property located at 1218 S. Fairfax Avenue, Los Angeles, California 90019 (“Property”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

A. Statement of the Case

1. Complaint

Plaintiff Church commenced this proceeding on November 6, 2019 against Defendants Choi, Hapdong, LAOD, and Hun Sung Park (“Park”). The operative pleading is the First Amended Complaint[2] (“FAC”) filed on August 6, 2020, which alleges a cause of action for declaratory relief and seeks the remedy of injunctive relief. The FAC alleges in pertinent part as follows.

Church is, and has always been, predominantly a Korean-speaking ethnic church located in the Los Angeles County. On March 3, 1972, Church was first organized as an independent Presbyterian church. On October 11, 1973, Church was registered as a California nonprofit religious corporation.

For over 30 years, from its establishment in 1972 until May 2003, Church was, and operated as, an independent Presbyterian Church without being affiliated with any national church or denomination, nor being controlled by any higher ecclesiastical governing bodies commonly known as presbyteries and the General Assembly.

In May 2003, Church joined the Los Angeles Presbytery, a regional governing body of the national church known as the Korean American Presbyterian Church, a Pennsylvania corporation doing business in California as KAPC, Inc. (“KAPC”). In 2014, Church withdrew its membership from KAPC and joined a newly organized national church known as the World Korean Presbyterian Church, a California non-profit religious corporation (“WKPC”). Church is a spin-off denomination from KAPC and was organized as a California non-profit religious corporation in June 2014. Both KAPC and WKPC adopted, and still adopt, the same Book of Church Order (“BOCO”) as their respective constitution for faith and polity.

At a special congregational meeting held on November 17, 2019, Church terminated its affiliation with WKPC, effective November 17, 2019. Accordingly, since November 17, 2019 to date, Church is an independent Presbyterian church. The November 17, 2019 meeting was held in full compliance with the notice and other requirements of the BOCO and was effective in terminating Church’s affiliation with WKPC.

Defendants contend that Church is a member church of Hapdong and therefore is governed by Hapdong. Defendants contend that Hapdong appointed Choi as a Temporary Senior Pastor of Church at the meeting of October 29, 2019 and that the session consisting of Choi, Yun, Samuel Kim, and Chang Rok Kim has the right to possess, manage and control Church’s property. Further, Defendants contend that since Church and LAOD are practically merged as one church, LAOD is a de facto owner of KWPC’s real property and Pastor Hun Sung Park (“Park”) is senior pastor of both Church and LAOD.

As a result, Plaintiffs allege that declaratory relief is necessary to prevent Defendants from interfering with Plaintiffs’ ability to manage and control Church’s property.

2. Course of Proceedings

On November 15, 2019, the court granted Church’s ex parte application for a temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”) and set the hearing date for the matter for December 5, 2019.

On November 26, 2019, the court denied Defendants’ ex parte application for immediate termination of the TRO and continued the OSC. The court informed the parties that it would not rely on the Complaint as evidence.

On January 16, 2020, the court granted Church’s application for a preliminary injunction.

On January 27, 2020, the court continued the ex parte application for motion for reconsideration to February 21, 2020, instructing the parties to file and serve supplemental moving papers by February 13, 2020 and any supplemental opposition by February 19, 2020.

On February 18, 2020, Church filed a Notice of Stay of Proceedings, noting an automatic stay had been caused by its filing of a bankruptcy case in the Central District of California.

At the February 21, 2020 hearing, the court noted that Church filed for bankruptcy and a Notice of Stay of Proceedings. The court also noted that the parties had appeared in Department 71 two days earlier to discuss the bankruptcy stay issue, and Judge Bachner continued the matter to March 10, 2020. This department continued the application to reconsider until after Judge Bachner’s decision on the effect of the bankruptcy filing.

In doing so, the court noted -- based on Defendants’ moving papers and without the benefit of Church’s opposition – the following: (1) the undisputed principle is that the court does not have authority to decide who is the appropriate pastor for Church, but does have authority to decide who controls the property where the worship services occur. Def. Ex. 1, p.6. The court granted the preliminary injunction on the basis that Hapdong was a third party which appointed Reverend Choi as pastor and to be in control of Church property, and the court did not see any evidentiary basis on which Hapdong could do that. Id. The key meeting was the LA Presbyery’s decision which was infected by Hapdong’s intrusion. Id.

Defendants’ evidence in the motion to reconsider is that Church has a dual membership in Hapdong and KWPC. Id., p. 7. KWPC’s General Assembly, through the Moderator and special committee, all approved Reverand Choi, who was appointed by Hapdong. Id. The court stated that “Defendants have a pretty good case for reconsideration”. Id.

On March 10, 2020, the parties appeared before Judge Bachner for a case management conference to discuss the effect of the bankruptcy filing. Judge Bachner stayed the entire action. The parties also agreed that cases 19STCV40062, 19STCV36339 and 20STCV06255 should be related.

On March 16, 2020, this department followed Judge Bachner’s lead and stayed Defendant Western Presbytery (Hapdong)’s ex parte application for motion for reconsideration of the preliminary injunction in favor the pending bankruptcy court proceedings.

On September 16, 2020, the court granted Defendants’ ex parte application to set the motion for reconsideration of the preliminary injunction to November 12, 2020. The court issued a tentative decision for the hearing on that date but became unavailable for the hearing. Per the parties’ stipulation, the hearing was continued to the instant date.

After the tentative was issued and the hearing was continued, the parties filed unauthorized documents, including: (1) Defendants’ brief re: Plaintiff’s false representations to the court in its opposition, (2) a compendium of declarations in support of Defendants’ brief, (3) Defendants’ request to take judicial notice of 11 documents in the court file, a reporter’s transcript in the case dated February 21, 2020, and declarations of Nathanael Yun and Bong Kyu Kim in support of a motion to disqualify Plaintiff’s counsel set for hearing on December 10, 2010, and a Statement of Information for WKPC filed with the Secretary of State on May 27, 2020, and (4) Plaintiffs’ opposition to Defendants’ brief re: Plaintiff’s false representations.

None of these unauthorized briefs have been read or considered. This motion has been pending for almost a year and the court fully worked up its tentative ruling for November 12, 2020. The parties may not leapfrog from that ruling to supplemental briefing. The court has considered the documents filed prior to November 12, 2020 and the February 21, 2020 reporter’s transcript insofar as they are relevant to the motion. The Statement of Information and declarations on the motion to disqualify have no bearing on the motion to reconsider.

B. Applicable Law

1. Reconsideration

Code of Civil Procedure section 1008(a) provides for reconsideration of court orders. Section 1008(a)’s motion to reconsider is broad in scope and allows any party affected by the order to seek reconsideration and modification, amendment or vacation of prior orders. Relief under section 1008(a) is strictly limited; motions to reconsider must be brought within ten days of service of written notice of the original order.

A motion for reconsideration constitutes the exclusive means for a party seeking modification, amendment or revocation of an order. Morite of Calif. v. Sup. Ct. (1993) 19 Cal.App.4th 485, 490. To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas v. Barry Controls Corp., (“Kalivas”) (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.

2. Dissolution of Preliminary Injunction

The court may modify or dissolve and injunction upon a showing that there has been a material change in the facts upon which the injunction was granted or that the ends of justice would be served by the modification or dissolution of the injunction. CCP §533.

C. Statement of Facts[3]

1. Defendants’ Evidence

The court in the Bankruptcy Case (“BK Court”) has, in part, granted Defendants’ motion for relief from the automatic stay. Sohn Decl., ¶¶ 9-10, Exs. 2, 3. The BK Court issued two separate memorandum decisions, one appointing a Chapter 11 trustee for Church (“Trustee”) and a second finding that the automatic stay applies but that cause exists to modify the stay so that the state litigation may proceed. Sohn Decl., ¶10. Ex. 2, p.4; Ex. 3, p.17. The BK Court found that the Ko Faction (Ko, Bong Kim, and Ra) filed the Chapter 11 bankruptcy case in bad faith. Sohn Decl., ¶12, Ex. 2, p. 6.

On June 2, 2020, the 44th General Assembly of WKPC (“General Assembly”) met at its annual meeting. Seo Decl., ¶5, Exs. 5-6. The General Assembly was attended by 264 member pastors and 71 member elders. Seo Decl., ¶8. According to the provisions of the BOCO, all General Assembly documents containing the signatures of the Moderator and the Stated Clerk are authentic and official documents of the General Assembly indicating its official actions. Seo Decl., ¶¶ 14-15, Ex. 7.

The minutes of the June 2, 2020 meeting show that the General Assembly found: (1) the LA Presbytery headed by Reverend Suk Ho Jin (“Jin”) was the legitimate presbytery of WKPC; (2) the November 23, 2019 decision to expel Ko and Ra for attempting to take the property of the Church was approved; (3) Ko and Ra were dismissed from their jobs and expelled from WKPC; (4) the LA Presbytery meetings held on November 1, 7, and 18, 2019 were illegal meetings and all resolutions reached at said meetings are null and void; (5) Church’s session comprised of the Ko Faction is illegal and false and dissolved; and (6) BOCO, Chapter 10, Article 5, subdivision 2 gives the General Assembly power to form, merge, divide, and terminate presbyteries. Seo Decl., ¶11, Exs. 5-6.

Trustee for Church made clear that it remains neutral in this case to resolve the dispute between the facts and that neither the Ko Faction nor the Choi faction may represent that they have authority to act on behalf of Church. Kim Decl., ¶4. Trustee has indicated that Defendants may conduct worship services and other religious activities in Church premises and that he will not be opposing Defendants’ ex parte application for dissolution of the preliminary injunction. Kim Decl., ¶5, Ex. 9.

Trustee and the attorney for the Ko Faction,[4] Dan Lee, Esq. (“Lee”) entered into a formal stipulation wherein Trustee made clear that KWPC remains neutral and this case may resolve the dispute between the factions. Kim Decl., ¶4, Ex. 8. Neither the Ko Faction nor Western Presbytery (Hapdong) may represent that they have the authority to act on behalf of KWPC. Id.

2. Plaintiffs’ Evidence

Church was first organized in 1972 as an independent Presbyterian church. Bong Kim Decl., ¶4. Church registered as a California corporation on October 11, 1973. Bong Kim Decl., ¶4, Exs. 4A, 4B, 4C. From its establishment in 1972 until May 2003, the Church was an independent Presbyterian Church without affiliation with any national church. Bong Kim Decl., ¶7.

In May 2003, the Church joined the Los Angeles Presbytery, a regional governing body of the national Church known as the Korean American Presbyterian Church, a Pennsylvania corporation doing business as KAPC. Bong Kim Decl., ¶7, Ex. 13. During the Church’s affiliation with KAPC from 2003 through 2014, the affairs of the Church were conducted by the session, analogous to a board of directors, pursuant to the BOCO. Bong Kim Decl., ¶10. The session consisted of the teaching elder (known as ministers) and the ruling elders (elected by the regular members). Id.

On information and belief, in May 2013 a group of KAPC churches and pastors, including LAOD, a California nonprofit religious corporation, and LAOD’s senior pastor Hun Sung Park, were expelled from KAPC. Bong Kim Decl., ¶8, Ex. 15. In early 2014, the expelled churches and pastors, led by LAOD and Hun Sung Park, organized WKPC, a California nonprofit religious corporation. Bong Kim Decl., ¶8, Ex. 14.

In 2014, Church withdrew its membership from KAPC and joined WKPC. Bong Kim Decl., ¶9. During Church’s affiliation with WKPC from 2014 until November 17, 2019, Church’s affairs were conducted by the session, analogous to a board of directors, pursuant to the BOCO. Bong Kim Decl., ¶11. Both KAPC and WKPC adopted the same BOCO as their respective constitution for faith and polity. Id. The session, again, consisted of the teaching elder (known as ministers) and the ruling elders (elected by the regular members). Id.

In early 2018, Church had an internal dispute surrounding the then senior pastor Geon Oh Seo (“Seo”). In efforts to resolve the dispute, WKPC’s LA Presbytery, which was the regional governing body of Church, removed Seo from Church and as of March 14, 2018 appointed Reverend Ko, the then vice moderator of LA Presbytery, as interim pastor of Church. Bong Kim Decl., ¶4. Accordingly, from March 14, 2019 until Church’s withdrawal from WKPC (as of November 17, 2019), Ko was the pastor and moderator of Church duly appointed by LA Presbytery. Id.

Hapdong is a regional association or fellowship of pastors in the United States of WKPC’s national church in Seoul, Korea. Bong Kim Decl., ¶13, Ex. 16. On October 29, 2019, Hapdong purportedly appointed Choi as a Temporary Senior Pastor of Church (the “October 29 Appointment”). Bong Kim Decl., ¶13. Choi is a former part-time associate pastor of Church who was expelled from Church due to defiance and misconduct. Id.

Following the October 29 Appointment by Hapdong, Choi claimed that the session consisting of Nathanael Yun (“Yun”) and himself has the right to possess, control, and manage the Church’s property. Bong Kim Decl., ¶14. Yun is a former elder of the Church who was expelled along with Choi as of October 31, 2019. Id., Ex. 7.

Choi and Yun claimed, and still claim, that Church held a special congregation meeting on November 5, 2019, that Choi was the moderator and Yun was the clerk at said meeting, and that Church withdrew from the LA Presbytery as of November 5, 2019. Bong Kim Decl., ¶15, Ex. 8.

Prior to, and at the time of, Church’s special congregational meeting held on November 17, 2019, the affairs of Church were conducted in accordance with the BOCO as well as the By-Laws. Bong Kim Decl., ¶16, Exs. C, D. There is no provision in BOCO that prevents Church from terminating its affiliation with WKPC and/or withdrawing therefrom. Id.

On November 9, 2019, the session was convened and resolved to call a special congregational meeting for Sunday, November 17, 2019, immediately following the service (the “November 9 Resolution”). Bong Kim Decl., ¶18, Ex. 9. The Notice for the November 17, 2019 congregational meeting was announced to the congregation on the weekly worship bulletin dated November 10, 2019 and effectively stated that “a special congregational meeting shall be convened on the next Sunday, November 17, following the 3:30 p.m. service at a chapel for purposes of Pastoral Calling of Rev. Joo Mo Ko, and Withdrawal from the WKPC denomination.” Bong Kim Decl., ¶20, Ex. 10. The Notice of the November 17 special meeting was further announced on the following weekly worship bulletin on November 17, 2019. Bong Kim Decl., ¶20, Ex. 11.

Nine of ten regular members were present at the November 17, 2019 meeting, constituting a quorum in compliance with the BOCO. Bong Kim Decl., ¶21, Ex. 12. Ko was the moderator and Bong Ryu Kim was the clerk. Bong Kim Decl., ¶23. The following resolutions were approved and adopted, effective as of November 17, 2019, by the members present: (1) Church ceased its affiliation with WKPC and withdrew therefrom; (2) Ko was called and accepted as senior pastor of Church; and (3) Church remains, and operates as, an independent Presbyterian church. Bong Kim Decl., ¶24, Ex. 12.

As a result of the November 17 congregational meeting, the affairs of Church are currently conducted by the Board, pursuant to the By-Laws and Corp. Code section 9210(a). Bong Kim Decl., ¶25, Ex. 2. At a meeting held on November 17, 2019, immediately following the November 17, 2019 congregational meeting, the Board resolved to appoint the Ra to fill Yun’s vacancy as of November 17, 2019, until the next annual election. Bong Kim Decl., ¶26. Further, the Board appointed Ko as the chief executive officer, and Bong Kyu Kim as the chief financial officer and secretary of KWPC. Id.

On November 6, 2019, Church filed the instant lawsuit. Lee Decl., ¶3. On November 15, 2019, this Court issued the TRO against Pastor Choi, Hapdong, and LAOD and set the OSC for December 5, 2019. Id.

On November 16, 2019, Defendants retained new counsel and filed a substitution of attorney. Lee Decl., ¶4. On November 26, 2019, Defendants moved to dissolve the TRO or, in the alternative, to continue the OSC. Id. This court denied Defendants’ request for dissolution of TRO but continued the OSC to January 16, 2020. Id. On December 30, 2019, Defendants filed their opposition and Plaintiff filed its reply on January 9, 2020. Id.

On January 16, 2020, the court granted Plaintiff’s request for an order of preliminary injunction. Id. On January 27, 2020, Plaintiff posted the required undertaking pursuant to this Court’s order of January 16, 2020. Id.

On February 14, 2020 (the “Petition Date”), a voluntary chapter 11 petition was filed on behalf of the Church. Lee Decl., ¶5, Ex. 3. The commencement of the Bankruptcy Case created an estate under 11 U.S.C. § 541(a), which is comprised of all legal or equitable interests of the debtor in property as of the commencement of the case under 11 U.S.C. § 541(a)(1). Id.

On April 24, 2020, the BK Court entered an order modifying the automatic stay to allow the parties to the State Court Action – the Ko Faction, the Choi Faction, and WKPC – to proceed with this lawsuit to final judgments or orders as to the following issues: “who has current control over physical access to the real property for church services, who can examine books and records, who can use Debtor's name, who can speak for Debtor, who can make agreements for Debtor, who has signing authority over its bank accounts, etc.” Lee Decl., ¶6, Ex. 1. In addition, the BK Court entered an order for appointment of the Trustee. Lee Decl., ¶7, Ex. 2. On April 27, 2020, Jason Rund was appointed as the Trustee for Church/Debtor. Id.

On April 27, 2020, Plaintiff filed a motion for leave to amend the Complaint in this case to include Ko, Bong Kyu Kim, and Ra as Plaintiffs. The motion was granted on July 28, 2020,. Lee Decl., ¶8, Ex. 4. On August 6, 2020, the FAC was filed and served. Id. In addition, Plaintiff filed a motion for an order to fix a hearing date pursuant to Corp. Code section 9418, to determine which faction presents Church in compliance with the BK Court’s order lifting the automatic stay. Id.

D. Analysis

Defendants move for reconsideration of the court’s January 16, 2020 ruling granting a preliminary injunction in favor of Plaintiff Church on the basis that they have presented new evidence demonstrating that the preliminary injunction is no longer necessary.

A motion to reconsider under CCP section 1008(a) properly consists of two components: (a) whether the court should reconsider and (b) the decision on the merits of reconsideration. If the court decides in the negative on the first, it need not address the second.

1. The Preliminary Injunction

The preliminary injunction enjoined (1) Defendant Choi from using Church’s name, website, telephone number, fax number, federal and state tax identification numbers, and federal employer identification number and (2) all Defendants from interfering with Church’s possession, control, and management of its Property, entering onto the Property without permission, and disrupting and/or interfering with Church’s meetings, events, and activities on the Property.

The ruling was based on the conclusion that Defendants had not shown the legitimacy of the October 2019 request by Elder Yun and Samuel that Hapdong appoint Choi as Church pastor. According to Choi, this was possible because Church has dual membership with both the LA Presbytery and Hapdong. There was no documentary evidence to support this dual membership other than Choi’s declaration. Church disputed that Hapdong had any authority and denied that Church is a member of, or has any affiliation with, that presbytery.

The evidence supported Plaintiff’s conclusion that Church and LAOD are separate. LAOD has been a tenant at Church Property since November 2018. In September 2018, Church and LAOD began to talk about a possibility of merging the two churches, but only after their respective lawsuits were finalized. Park was rebuffed when he asked to be appointed by Hapdong to be Church’s interim moderator and pastor. Ko, who was indisputably Church’s interim moderator, told Park that he would have to transfer his membership to, and be appointed by, the LA Presbytery. By August 2019, Church had notified Park and LAOD that any further discussion of the merger would be tabled until the LAOD action was finalized, including satisfaction of the LAOD judgment.

Thus, the evidence showed that Church is governed by the LA Presbytery and is not a member of Hapdong. Consequently, no action by or on behalf of Hapdong has any bearing on the control and management of Church property. Specifically, Hapdong’s October 29, 2019 appointment of Choi as Church’s interim moderator was ineffectual. Since Choi had no authority, the session meeting held by him and Elder Yun on October 29, 2019 calling for a November 5, 2019 Church congregational meeting for Church to join the California Presbytery also was ineffectual. So was Church congregation’s November 5 vote to remove Ko from the Session and Church, discontinue Church’s membership in the LA Presbytery, and join the California Presbytery. Church further demonstrated that the November 5 congregational meeting was not properly noticed and convened as required by BOCO.

What about the validity of the LA Presbytery meetings of November 18 and 23, 2019? At a special meeting on November 18, 2019, the LA Presbytery ratified the Executive Officers Committee November 1 Resolution that, inter alia, (i) assumed jurisdiction of the session, (ii) expelled Elder Yun from Church and the LA Presbytery, (iii) expelled Defendant Choi from the LA Presbytery, and (iv) appointed Ra and Paul as acting members of the Session. The LA Presbytery also dismissed Jin as moderator of the LA Presbytery and made Ko the acting moderator until the next regular LA Presbytery meeting.

At a special LA Presbytery meeting called by Jin on November 23, 2019, the LA Presbytery found that the November 1 Resolution was false because Ko could not call a presbytery meeting. The meeting also was improperly noticed because there were no qualified Ruling Elder Commissioners at the November 18 meeting. The LA Presbytery also removed Ko, Ra, and Paul from Church and expelled and terminated Ko and Ra from the LA Presbytery.

Plaintiff contended that Jin could not call the November 23, 2019 LA Presbytery meeting because he had been removed as its moderator. Plaintiff also contends that the LA Presbytery denied Jin’s motion for the dismissal and expulsion of Ko and Ra.

The court concluded that it did not have the authority to resolve the parties’ dispute over the validity and result of the November 23 LA Presbytery meeting, at least insofar as it concerns who is the appropriate pastor, moderator, or member of Church or LA Presbytery. It was unnecessary to decide the court’s authority to resolve the notice and other BOCO compliance issues for these LA Presbytery meetings because LA Presbytery, or potentially Church, clearly should be in charge of Church property, while none of Choi, LAOD, or anyone affiliated with Hapdong controls or manages Church property.

2. Reconsideration

To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas v. Barry Controls Corp., (“Kalivas”) (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.

Defendants’ provide evidence establishing that, at WKPC’s June 2020 General Assembly meeting, the General Assembly found that: (1) the LA Presbytery headed by Reverend Suk Ho Jin (“Jin”) is the legitimate presbytery of WKPC; (2) the November 23, 2019 decision to expel Ko and Ra for attempting to take the property of the Church was approved; (3) Ko and Ra were dismissed from their jobs and expelled from the WKPC; (4) the LA Presbytery meetings held on November 1, 7, and 18, 2019 were illegal meetings and all resolutions reached at said meetings are null and void; (5) the Church’s session comprised of the Ko Faction is illegal and false and dissolved; and (6) the Book of Church Order (“BOCO”), Chapter 10, Article 5, subdivision 2 gives the GA power to form, merge, divide, and terminate presbyteries. Seo Decl., ¶11, Exs. 5-6. The GA also affirmed the appointment of Choi as the interim moderator and pastor of the Church and the reinstatement of Yun to the Church session. Seo Decl., 5.

Defendants also present evidence that the BK Court appointed the Trustee and found that the automatic stay applies but that cause exists to modify the stay so that the state litigation may proceed. Sohn Decl., ¶10. Ex. 2, p.4; Ex. 3, p.17. The BK Court also found that the Ko Faction (Ko, Elder Kim, and Ra) filed the Chapter 11 bankruptcy case in bad faith. Sohn Decl., ¶12, Ex. 2, p. 6.

These facts are sufficient to warrant reconsideration of the court’s preliminary injunction ruling. This is confirmed by the fact that the court stated at the February 21, 2020 hearing that “Defendants have a pretty good case for reconsideration”.

3. Merits

The merits of reconsideration turn on the significance of the General Assembly’s June 2, 2020 decision that the LA Presbytery headed by Reverend Jin is the legitimate presbytery of WKPC, Ko and Ra were dismissed from their jobs and expelled from the WKPC, the LA Presbytery meetings of November 18 and 23, 2019 were illegal meetings, and all resolutions reached at said meetings are null and void, the Church’s session comprised of the Ko Faction is illegal.

Defendants’ argue that the court is required to give deference to the decision of the highest tribunal of the denomination removing Ko and Ra from Church, thereby making the injunction unnecessary. App. at 7; Reply at 2-4.

It is true that the court must defer to the highest tribunal of the denomination for purely ecclesiastic matters. Serbian Eastern Orthodox Diocese v. Millivojevich, supra, 426 U.S. at 72425; Korean United Presbyterian Church v. Presbytery of the Pacific, (“Korean United”) (1991) 230 Cal.App.3d 480 (issues relating to a religious organization’s governance of its internal affairs are appropriately matters for the ecclesiastical adjudicatory bodies of that organization, and the court must defer to the decisions of those bodies).

In Korean United, supra, 230 Cal.App.3d 480, a primary leader of the local church persuaded a majority of the congregation that the church should leave the denomination.  230 Cal.App.3d at 494. The higher authority responded by appointing new leadership for the local church.  The higher authority determined that the minority represented the true church and was entitled to possession of church property.  Id.  The court held that which group is the “true church” is “clearly ecclesiastical” and the ecclesiastical authorities’ determination of the issue is binding for the court.  Id. at 500-03.

Thus, the court must defer to the General Assembly’s decision to the extent it bears on the preliminary injunction. It does not. The preliminary injunction was based on the fact that Hapdong was a third party for which no authority had been shown for it to appoint Choi as Church’s interim moderator. Since Choi had no authority, the session meeting held by him and Elder Yun on October 29, 2019 calling for a November 5, 2019 vote to remove Ko from the session and Church, discontinue Church’s membership in the LA Presbytery, and join the California Presbytery was ineffectual. The General Assembly’s decision says nothing about Hapdong or the November 5 vote and does not affect the portion of the preliminary injunction ruling that relied on Hapdong’s lack of authority.

The question becomes what is the impact of the General Assembly’s ratification of Ko and Ra’s dismissal from KWPC on November 23, 2019 and declaration that the November 1, 7, and 18 meetings were void? Seo Decl., Ex. 6. Plaintiffs’ evidence shows that at a meeting on November 17, 2019, Church adopted resolutions in which (1) Church withdrew from and ceased its affiliation with WKPC, (2) Ko was called and accepted as senior pastor of Church, and (3) Church remains, and operates as, an independent Presbyterian church. Bong Kim Decl., ¶24, Ex. 12. Plaintiffs’ evidence states the November 17, 2019 meeting was in full compliance with the requirements of BOCO. Opp. at 10-12.

If Church was no longer affiliated with and under the authority of WKPC on November 17, 2019, then the General Assembly’s June 2, 2020 decision cannot affect who controls Church’s property. Defendants dispute the effect of the November 17, 2019 meeting by arguing that Ko had already been removed as a moderator and had no authority to call the meeting. Reply at 2. The court already has addressed this in deciding that Hapdong lacked authority to appoint Choi. Defendants provide no further evidence of a dual membership between Hapdong and LA Presbytery.

Defendants also argue that Church could not disassociate from WKPC without consent from LA Presbytery and Hapdong. Reply at 2. Defendants provide no authority for this proposition, which would bear on the analysis if true. Their citation to headnotes in a case, Concord Christian Center, et al. v. Open Bible Standard Churches, et al., (“Concord”) (2005) 132 Cal.App.4th 1396, is not authority for this point because a court may not take judicial notice of the truth of the findings in a court document. Sosinsky v. Grant, (1992) 6 Cal.App.4th 1548, 1551. Nor is there any evidence that WKPC or LA Presbytery have the same operative requirements as the church in Concord.

In sum, the court previously found that the evidence shows Church is governed by the LA Presbytery and is not a member of Hapdong.  Consequently, no action by or on behalf of the Hapdong has any bearing on the control and management of Church property. Plaintiffs’ evidence shows that Church withdrew from LA Presbytery and WKPC and Defendants’ evidence does not rebut that disassociation. There is no reason to dissolve the preliminary injunction.

2. The Bankruptcy Court’s Decision

Defendants argue that the dispute is between the Ko Faction and the rightful members of Church. Choi is just a pastor sent by LA Presbytery to fill a vacant position and LAOD is just a tenant. Repl at 3. The BK Court appointed the neutral Trustee to assume all and full control of the Church, meaning that Ko, Ra, and Choi have no further role in the business affairs of Church and the injunction is no longer necessary. Id. Defendants assert that the BK Court found that Ko filed the Bankruptcy Case in bad faith and without legitimate reason. App. at 7. The BK Court had concerns that the Ko Faction plans to sell Church’s property to fund their litigation or disrupt the Choi Faction’s services. Reply at 4-5. The bankruptcy stay protects Church property from the Ko Faction’s raiding. Reply at 5. Since the Trustee is in charge, neither side controls Church access for services and a preliminary injunction is no longer necessary. Reply at 6.

Plaintiffs dispute that the injunction is no longer necessary due to the appointment of the Trustee. They argue that the Choi Faction wants to own Church’s real property while avoiding collection on a third-party judgment against LAOD by creditor Evangelical Christian Credit Union (“ECCU”). Opp. at 7. Plaintiffs assert the preliminary injunction is necessary to protect the status quo and prevent Defendants from dismissing the Bankruptcy Case and discharging the Trustee. Opp. at 5. There would be a risk that the assets would be dissipated or other irreparable harm done to Church’s property and the interests of creditors. Opp. at 5.

Plaintiffs also dispute Defendants’ assertions that the BK Court concluded the Bankruptcy Case was filed in bad faith. Plaintiffs note (Opp. at 6-7) that, while the BK Court concluded that the Bankruptcy Case was filed in bad faith, it also concluded there was no cause for dismissal and that there was other cause for relief and legitimate need for bankruptcy protection. Bong Kim Decl., Ex. 1, p.11; Ex. 2, p.6.

While Plaintiffs’ assertions as to Defendants’ ulterior motives in seeking to dissolve the preliminary injunction to seize control of the Church’s property are speculative and unsupported, they fail to demonstrate that the injunction is unnecessary. Despite finding that the Bankruptcy Petition was brought in bad faith, the BK Court also concluded that dismissal was not proper because of the risk of dissipation of assets and other harm. This supports Plaintiffs’ argument that the preliminary injunction should be maintained to protect the status quo and prevent any potential harm from sale of Church property.

Defendants have not demonstrated that the Trustee’s control over Church justifies dissolution of the preliminary injunction.

E. Conclusion

The motion for reconsideration is granted and, after reconsideration, is denied on the merits.


[1] Defendants’ reply brief refers to a concurrently filed Declaration of Nathanael Yun, but the court file does not reflect this document.

[2] The FAC added Joo Mo Ko (“Ko”), Bong Kyu Kim, and Myung Chul Ra (“Ra”) as Plaintiffs.

[3] The court overruled Plaintiffs’ written evidentiary objections. Plaintiffs request judicial notice of (1) the articles of incorporation for KWPC, KAPC, WKPC, LAOD, and Hapdong (Exs. 4A, 4B, 13-16), (2) two bankruptcy court’s decisions from In re: Korean Western Prebyterian Church of Los Angeles, Case No. 2:20-by-11675-NB “Bankruptcy Case”) (Exs. 1, 2), a stipulation in the Bankruptcy Case (Ex. 3), the appellate decision in B293615 (Ex. 5), and a transcript from the bankruptcy case hearing (Ex. 6). Exhibits 1, 2, 3, 4A, 4B, 5, and 13-16 are judicially noticed. Evid. Code §452(c), (d). A reporter’s transcript is not a court filed document and is not subject to judicial notice. The request is denied for Exhibit 6.

[4] Using the BK Court’s convention, the court will refer to the Ko Faction, the Choi Faction, and the LAOD Faction.

Case Number: 19STCV40062    Hearing Date: December 10, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

KOREAN WESTERN PRESBYTERIAN CHURCH OF LOS ANGELES,

vs.

JONG SUK CHOI aka OLOF J. CHOI, et al.

Case No.: 19STCV40062

[Related Case: 19STCV36339]

Hearing Date: December 10, 2020

Defendants’ motion for disqualification of counsel is denied.

Defendants Rev. Jong Suk Choi aka Olaf J. Choi (“Choi”), Nathanael Yun aka Neung Gu Yun (“Yun”), and The Western Presbytery of the Hapdong in USA (“Hapdong”) (collectively “Defendants”) move for an order disqualifying W. Dan Lee and his firm METAL Law Group, LLP (collectively “Counsel”) as attorney of record for Plaintiffs Korean Western Presbyterian Church of Los Angeles (“KWPC”), Joo Mo Ko (“Ko”), Bong Kyu Kim (“Elder Kim”), and Muyng Chul Ra (“Ra”) (collectively “Plaintiffs”). Defendants move for disqualification based on Counsel’s violation of the Rules of Professional Conduct (“the Rules”), actual conflict, Defendants’ exchange of confidential information with Counsel on matters raised in this lawsuit, and Counsel’s representation of KWPC during the relevant time period in another lawsuit. (Notice of Motion, pg. ii.)

The Court notes Defendants Samuel Kim aka Seung Gon Kim (“Rev. Kim”), LA Open Door Presbyterian Church (“LAOD”), Hun Sung Park (“Park”), Chang Rok Kim (“Chang Kim”) are not parties to the instant motion.

Requests for Judicial Notice

Defendants’ 10/28/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted within the documents. (D-RJN, Exhs. 1-9.)

Defendants’ 12/3/20 request for judicial notice is granted. However, the Court will not take judicial notice of the truth of the matters asserted within the documents. (Reply-RJN, Exhs. 1-4.)

Evidentiary Objections

Defendants’ 12/3/20 evidentiary objection to the Declaration of Elder Kim in its entirety on the grounds that it lacks a certificate of translation from a Court-certified interpreter and Counsel is not qualified to translate is sustained.

Defendants’ 12/3/20 evidentiary objections to the Declaration of Counsel are overruled as to ¶¶9, 13, 18, 15, and sustained as to ¶ 8.

Background

Counsel first represented KWPC in Case No. BC698722 Korean Western Presbyterian Church v. Geon Oh Seo, et al., filed 3/20/18 in Department 62 (“the First Action”), which involved KWPC’s internal governance dispute over its property, and during which time Yun was a member of the Session of the World Korean Presbyterian Church (“WKPC”), a non-party to the instant action, but at the time was the national church to which KWPC belonged, along with Plaintiffs Ko and Elder Kim. (Opposition, pg. 3, fn. 4.) The Court notes Yun was not a plaintiff in the First Action and was not represented by Counsel for the purposes of filing the complaint in the First Action, which was filed on behalf of KWPC. However, the First Action defendants filed a cross-complaint for defamation against KWPC and its governing members, and in defending against this cross-complaint, Counsel represented cross-defendants, including Yun. The cross-complaint was dismissed with prejudice. (5/20/19 Notice of Entry of Judgment in First Action.) In addition, the First Action was resolved in favor of KWPC when the Court granted its motion for summary judgment. (7/25/19 Notice of Entry of Judgment.)

On October 10, 2019, a new lawsuit relating to church governance was filed by former or current members of KWPC against KWPC, Yun, Elder Kim, Ko, Rev. Kim (Yun’s brother-in-law and KWPC’s founding paster), LAOD, Park, Suk Ho Jin and Korean Western Presbyterian Church Foundation in Case No. 19STCV36339, captioned Kook Bong Lee, et al. vs. Nathanael Yun, et al. in Department 71 (“the Second Action”). Counsel appeared for KWPC, Ko, and Elder Kim; however, Yun and Rev. Kim retained separate attorneys, Carl Sohn and Steven Kim (“Sohn and Kim”), who are also representing Yun and Rev. Kim in the instant action. On November 15, 2019, Department 62 declined to deem the First Action and the Second Action related.

On November 6, 2019, KWPC filed the instant lawsuit for declaratory relief and injunctive relief against Choi, Park, Hapdong, LAOD, and Park, Case No. 19STCV40062, Korean Western Presbyterian Church v. Geon Oh Seo, et al. (the “instant action”), and to which Yun, Rev. Kim, and Chang Kim were added as defendants following the Court granting leave to amend on July 28, 2020, and the filing of the first amended complaint (“FAC”) on August 6, 2020. The Court notes Sohn and Kim are not representing LAOD and Park in the instant action, however, they represent the remaining defendants.

Defendants’ motion is based on the argument that Counsel’s representation of KWPC in prior actions, during which time Counsel worked with Yun who was at the time a member of KWPC’s governing session, creates a conflict of interest that requires Counsel’s disqualification because Yun is now opposing party to KWPC in the instant action.

Legal Standard

“‘A trial court's authority to disqualify an attorney derives from the power inherent in every court [t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto. [Citations.]’ [citation] ‘. . . The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one's choice must yield to ethical considerations that affect the fundamental principles of our judicial process.’ [citation]” (Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, 791-792; citing C.C.P. §128(a)(5).)

In ruling on a motion to disqualify, the court should weigh: (1) the party's right to counsel of choice; (2) the attorney's interest in representing a client; (3) the financial burden on a client of change of counsel; (4) any tactical abuse underlying a disqualification motion; and (5) the principal that the fair resolution of disputes requires vigorous representation of parties by independent counsel. (Mills Land & Water Co. v. Golden West Refining Co.  (1986) 186 Cal.App.3d 116, 126.) Whether an attorney should be disqualified is a matter addressed to the sound discretion of the trial court. (Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113.)

“Disqualification in cases of successive representation is based on the prohibition against ‘employment adverse to a… former client where, by reason of the representation of the… former client, the [attorney] has obtained confidential information material to the employment.’” (See H.F. Ahmanson & Company v. Salomon Brothers, Inc. (1991) 229 Cal.App.3d 1445, 1451.)

However, “[b]efore an attorney may be disqualified from representing a party in litigation because his representation of that party is adverse to the interest of a current or former client, it must first be established that the party seeking the attorney’s disqualification was or is ‘represented’ by the attorney in a manner giving rise to an attorney-client relationship.” (Civil Serv. Comm’n v. Superior Court (1984) 163 Cal.App.3d 70, 76-77.) This is ordinarily a question of law, but “where there is a conflict in the evidence the factual basis for the determination must first be determined, and it is for the trial court to evaluate the evidence.” (Meehan v. Hopps (1956) 144 Cal.App.2d 284, 287.)  “The burden is on the party seeking disqualification to establish the attorney-client relationship.” (Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 729 [citing In re Lee G. (1991) 1 Cal.App.4th 17, 27].) That burden is not carried simply “by the unilateral declaration of one party to the relationship,” but rather by facts indicating an express or implied contract.  (Ibid.) “California law is settled that a client's subjective belief that an attorney-client relationship exists, standing alone, cannot create such a relationship….” (Zenith Ins. Co. v. Cozen O’Connor (2007) 148 Cal.App.4th 998, 1010.) “This is because a plaintiff cannot unilaterally establish an attorney-client relationship, and its hindsight ‘beliefs’ that such a relationship existed are thus legally irrelevant.  [Citation.] Instead, it is the intent and conduct of the parties that controls the question as to whether an attorney-client relationship has been created.  [Citation.]” (Ibid.)

“A former client may seek to disqualify a former attorney from representing an adverse party by showing the former attorney actually possesses confidential information adverse to the former client.  However, it is well settled actual possession of confidential information need not be proved in order to disqualify the former attorney.  It is enough to show a ‘substantial relationship’ between the former and current representation.  If the former client can establish the existence of a substantial relationship between representations, the courts will conclusively presume the attorney possesses confidential information adverse to the former client.”  (See H.F. Ahmanson & Companysupra, 229 Cal.App.3d at 1452.)  The substantial relationship test creates a conclusive presumption that during the former representation the attorney obtained knowledge of confidential information that may be used against the former client.  The function of the conclusive presumption is to avoid “disclosing the former client's confidences and secrets through an inquiry into the actual state of the lawyer's knowledge and [to make] clear the legal profession's intent to preserve the public's trust over its own self-interest.”  (See id. at 1453.) 

Some courts have relaxed the substantial relationship test because the conclusive presumption is over-inclusive.  In addition, the conclusive presumption “may impose a significant hardship on the current client…may unfairly limit the employment opportunities of lawyers…[and] may stifle development of expertise in complex areas of law.”  (See ibid.) Moreover, “disqualification motions based on an alleged substantial relationship between representations are commonly used for purely strategic purposes to delay the litigation, harass the opposing party or pressure for a more favorable settlement.”  (See id. at 1454.)  As a result, the “substantial relationship” test has been modified and refined. “Thus, the rule followed in California is that the attorney's possession of confidential information will be presumed only when ‘a substantial relationship has been shown to exist between the former representation and the current representation, and when it appears by virtue of the nature of the former representation or the relationship of the attorney to his former client confidential information material to the current dispute would normally have been imparted to the attorney.’”  (See ibid.; See also City National Bank v. Adams98 Cal.App.4th 315, 326 (2002).)  

In applying the “substantial relationship” test, the court should consider three factors: “(1) factual similarities between the two representations, (2) similarities in legal issues, and (3) the nature and extent of the attorney's involvement with the case and whether he was in a position to learn of the client's policy or strategy.”  (See Adams v. Aerojet-General Corp.(2001) 86 Cal.App.4th 1324, 1332.)  “The subject of a current representation is substantially related to the subject of a prior representation only if the issues are sufficiently similar to support a reasonable inference that the attorney in the course of the prior representation was likely to have obtained confidential information material to the current representation.”  (See Fremont Indemnity Co. v. Fremont General Corp., 143 Cal.App.4th 50, 67 (2006) [court concluded that disqualification “based on the prior representation of a party in a substantially related matter is not warranted”].)

Analysis

As a preliminary matter, Defendants submit no evidence establishing the threshold issue that Choi or Hapdong were at any time “represented” by Counsel in a manner giving rise to an attorney-client relationship. As such, Choi and Hapdong do not have standing to bring the instant motion. Rather, the record reflects that only Yun was previously represented by Counsel in the context of defending against the cross-complaint in the First Action.

Defendants have not submitted evidence suggesting Counsel’s representation of Yun in defending the defamation cross-complaint in the First Action was substantially related to Counsel’s representation of KWPC in the instant action for the purposes of warranting Counsel’s disqualification. In addition, while Defendants assert Yun worked closely with Counsel during Counsel’s representation of KWPC in the First Action, this does not establish the existence of an attorney-client relationship between Yun individually and Counsel. Rather, Defendants’ motion makes clear that Yun’s communications with Counsel in the First Action were done in Yun’s capacity as the official representative of KWPC, and on behalf of KWPC. (Decl. of Yun ¶¶6, 13.) There is no evidence suggesting Yun’s communications with Counsel either in Counsel’s representation of KWPC’s complaint in the First Action or in Counsel’s representation of the cross-defendants, including Yun, in defending against the First Action’s defamation cross-complaint involved Yun acting in an individual capacity as opposed to as a representative of Counsel’s corporate client, KWPC, which Counsel still represents. (See La Jolla Cove Motel & Hotel Apartments, Inc. v. Superior Court (2004) 121 Cal.App.4th 773, 784 [“In representing a corporation, an attorney’s client is the corporate entity, not individual shareholders or directors, and the individual shareholders or directors cannot presume that corporate counsel is protecting their interests.”].)

Moreover, Yun submits no evidence of confidential information he disclosed to Counsel that can be used against him. The Court notes Defendants’ motion asserts confidential communications included Yun’s communications with Counsel regarding issues raised in the First Action and Second Action, including a potential merger of KWPC and LAOD. (Motion, pgs. 4-8.) However, there is no evidence suggesting Yun’s participation in these communications involved anything beyond his role as a representative of KWPC, Counsel’s client at the time. In addition, while Yun declared Counsel was serving as counsel for LAOD, this is not competent evidence to establish the existence of an attorney-client relationship between Counsel and LAOD, and moreover, LAOD is not a party to the instant motion. (Decl. of Yun ¶16; Opposition, pg. 11.) As such, whether Counsel’s confidential communications with LAOD mandate disqualification is not presently before the Court.

There is no evidence suggesting the existence of factual similarities between Counsel’s representation of Yun in defending against the defamation cross-complaint and Counsel’s representation of KWPC in the instant action. In addition, there is no evidence suggesting the two actions involved similarities in legal issues. Finally, there is no evidence suggesting Counsel’s involvement with defending against the defamation cross-complaint in the First Action placed him in a position to learn of Yun’s strategy in pursuing the instant action.

In reply, Defendants assert Plaintiffs distort facts and raise untenable claims to distract the Court’s attention, including: (1) the State Bar investigation of whether Counsel disclosed confidential information; (2) the exaggeration of Plaintiffs’ claim the parties have heavily litigated against each other; (3) the unfoundedness of Plaintiff’s claims of prejudice and financial burden given the Bankruptcy Court ordered a neutral party placed in control of KWPC’s property pending the resolution of the governance disputes; (4) the fact the motion was not filed for tactical reasons; and (5) Plaintiffs’ bad faith filing for bankruptcy to fund their governance dispute litigation. (Reply, pgs. 2-4.) However, Defendants do not address how Counsel’s representation of KWPC and communication with Yun in his capacity as a representative of KWPC during the First Action and since satisfies the threshold issue of successive representation or the “substantial relationship” test, given it appears undisputed that Counsel’s only representation of Yun in his individual capacity was in defending against the defamation cross-complaint.

Based on the foregoing, Defendants’ motion to disqualify Counsel is denied.

Dated: December _____, 2020

Hon. Monica Bachner

Judge of the Superior Court

Case Number: 19STCV40062    Hearing Date: July 28, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

KOREAN WESTERN PRESBYTERIAN CHURCH OF LOS ANGELES,

vs.

JONG SUK CHOI aka OLOF J. CHOI, et al.

Case No.: 19STCV40062

[Related Case: 19STCV36339]

Hearing Date: July 28, 2020

Plaintiff Korean Western Presbyterian Church of Los Angeles’s motion for leave to file a first amended complaint is granted. Plaintiff is to file First Amended Verified Complaint that names Joo Mo Ko, Bong Kyu Kim, and Myun Chul Ra as additional plaintiffs and Chang Rok Kim as an additional defendant within 10 days.

Plaintiff Korean Western Presbyterian Church of Los Angeles (“Plaintiff”) moves for leave to file a first amended complaint (“FAC”) in this action to allege additional facts since the filing of the original complaint. (Notice of Motion, pgs. 1-2, Motion, pg. 3, C.C.P. §473(a)(1).) In addition, while not set forth in the notice, a review of the motion and Proposed FAC demonstrates Plaintiff seeks to remove the conspiracy and unfair business practices causes of action and add the following parties as defendants: (1) Presbyterian Church in Korea (Hapdong) (“PCK”); (2) Nathanael Yun (“Yun”) Samuel S. Kim (“Samuel Kim”); (3) Dan In Chae (“Chae”); and (4) Jung Gi Na (“Na”). (Motion, pgs. 3-4.) The Court notes Plaintiff does not seek to allege additional causes of action.

In reply, Plaintiff requests the Court also name Joo Mo Ko (“Ko”), Bong Kyu Kim (“Bong Kim”) and Myun Chul Ra (“Ra”) as additional plaintiffs and Chang Rok Kim (“Chang Kim”) as an additional defendant. (Reply, pg. 4.) Plaintiff asserts it will file the First Amended Verified Complaint within 10 days of the Court’s order, adding these individuals as parties. While Plaintiff did not request to name these individuals as additional plaintiffs and/or defendants in its motion or [Proposed] FAC, the Court grants leave for Plaintiff to amend its complaint as requested.

On November 6, 2019, Plaintiff filed its original complaint in this action against Defendants The Western Presbytery of the Hapdong in USA (“WPH”), Rev. Jong Suk Choi aka Olaf J. Choi (“Rev. Choi”), LA Open Door Presbyterian Church (“LAOD”), and Hun Sung Park (“Park”) (collectively “Defendants”) alleging causes of action for declaratory and injunctive relief, conspiracy, and unfair business practices. (See Complaint.) On January 24, 2020, LAOD and Park filed their answer. On January 27, 2020, Rev. Choi filed his answer. On January 28, 2020, WPH filed its amended answer. On February 14, 2020, Plaintiff filed a voluntary bankruptcy petition under Chapter 11 in the Central District California of the United States Bankruptcy Court and subsequently filed a Notice of Stay in the instant action. (Motion, pg. 3.) On March 10, 2020, the Court ordered the instant action stayed. On April 21, 2020, the bankruptcy court lifted the automatic stay. On April 24, 2020, Plaintiff filed the instant motion. On July 13, 2020, LAOD and Park (“Park Defendants”) filed an opposition to the instant motion. On July 15, 2020, Rev. Choi and WPH (“Choi Defendants”) filed an opposition to the instant motion. Plaintiff filed its reply on July 20, 2020.

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (C.C.P. §473(a)(1).)

“Trial courts are vested with the discretion to allow amendments to pleadings ‘in furtherance of justice.’ That trial courts are to liberally permit such amendments, at any stage of the proceeding, has been established policy in this state since 1901.” (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489.)

CRC 3.1324(b) provides, as follows: “[a] separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.”

Plaintiff’s motion substantially complies with CRC 3.1324. Plaintiff’s motion includes a declaration from Plaintiff’s counsel Dan Lee (“Lee”), which specifies the effect of the amendment and that the request for amendment was not made earlier due to the bankruptcy stay. (Decl. of Lee ¶¶6-8.) The Court notes Lee does not declare when facts giving rise to the amended allegations were discovered. The declaration includes a copy of the proposed FAC. (Decl. Lee ¶2; Exh. A.) The Court finds Defendants will not be prejudiced by the amendment. It appears the new allegations are based on the same underlying facts already alleged by Plaintiff, and as such, Defendants has been aware of the allegations since the onset of this case. To the extent Defendants dispute the allegations, they can challenge the pleadings by motion. Defendants’ oppositions do not directly address how granting Plaintiff leave to amend its pleadings will prejudice Defendants. Choi Defendants argue the Court has discretion to deny leave to amend when a proposed amendment fails to state a valid cause of action or defense, and Choi Defendants assert that Plaintiff’s claims fail because it does not have standing to assert the claims. (C-Opposition, pgs. 7-8.) Choi Defendants argue that because Ro, Bong Kim, and Ra are the real parties in interest they are indispensable parties, and Plaintiff’s failure to include them renders the pleading defective. (C-Opposition, pg. 9.) Choi Defendants also assert the proposed amendments exceed the scope of the Bankruptcy Court order. (C-Opposition, pgs. 9-11.) However, the Court has granted Plaintiff leave to add Ro, Bong Kim, and Ra as plaintiffs and Chang Kim as a defendant. In addition, to the extent Choi Defendants assert the FAC is defective or exceeds the scope of the Bankruptcy Court order, they are entitled to challenge it via demurrer or motion to strike. In opposition, the Park Defendants assert that LAOD’s rights under the lease would be prejudiced by Plaintiff’s action for declaratory relief that fails to include the written lease in the operative pleading. (P-Opposition, pgs. 3-4.) However, the lease was already included in the original complaint, and thus constitutes part of the record of the instant action whether it is included in the operative pleading. Park Defendants’ arguments do not sufficiently address how they will be prejudiced by the Court granting Plaintiff leave to amend its pleading. Trial is not yet set in this action. As such, the Court finds Defendants have not demonstrated they will be prejudiced if the Court permits Plaintiff leave to amend.

Based on the foregoing, Plaintiff’s motion for leave to file a FAC is granted. The Court also grants Plaintiff’s request in reply that Plaintiff have leave to add Ro, Bong Kim, and Ra as plaintiffs and Chang Kim as a defendant. Plaintiff is to file its FAC within 10 days.

Case Number: 19STCV40062    Hearing Date: January 16, 2020    Dept: 85

Korean Western Presbyterian Church of Los Angeles v. Jong Suk Choi, et al., 19STCV40062

Tentative decision on application for preliminary injunction: granted

Plaintiff Korean Western Presbyterian Church of Los Angeles (“Church”) applies for a preliminary injunction restraining (1) Defendant Jong Suk Choi aka Olaf J. Choi (“Choi”) from using the Church’s name, logo, and website, and (2) Defendants Choi, the Western Presbytery of the Hapdong in USA (“Western Presbytery (Hapdong)”), and LA Open Door Presbyterian Church (“LAOD”) from interfering with Church’s possession and control of its property located at 1218 S. Fairfax Avenue, Los Angeles, California 90019 (“Property”).

The court has read and considered the moving papers,[1] oppositions[2], and reply, and renders the following tentative decision.

A. Statement of the Case

1. Complaint

Plaintiff Church commenced this proceeding on November 6, 2019 against Defendants Choi, Hapdong, LAOD, and Hun Sung Park (“Park”), alleging causes of action for (1) conspiracy (2) unfair business practices in violation of Bus & Prof. Code section 17200 et seq., and (3) declaratory relief, also seeking the remedy of injunctive relief. The Complaint alleges in pertinent part as follows.

Defendants have made concerted efforts for LAOD to become a de facto owner of the Church’s property and to use Church as its shell for the purposes of avoiding enforcement of the judgment against LAOD entered on April 17, 2015 in the amount of $2,057,045.94 ("LAOD Judgment") in the lawsuit captioned LA Open Door Presbyterian Church v. Evangelical Christian Credit Union (LSAC Case No. BC49794) ("LAOD Action").

In this scheme, LAOD has misused Church as a medium to defraud judgment-creditor Evangelical Christian Credit Union ("ECCU"). As of the date of filing of the Complaint in this action, the LAOD Judgment, affirmed on appeal, is estimated at approximately $2,995,389,99.

On May 7, 2018, the court entered another judgment against LAOD in favor of judgment-creditor ECCU in the amount of $460,000. The second judgment was appealed (Appeal Case No. B298968), dismissed on August 23, 2019, and remittitur was issued on October 24, 2019.

Defendants' scheme is to (1) to cease all offerings from LAOD members in order to deplete LAOD’s assets, (2) transfer about 80 key members and major contributors of LAOD to Church so they can contribute there, (3) possess and control Church’s property, both real and personal, as de facto owner, all so LAOD can continue its operation without its assets levied by judgment-creditor ECCU while hiding inside Church as its shield. The goal of this scheme is for LAOD to avoid its judgment as well as to become a de facto owner of parcels, valued at in excess of $20,000,000, that are owned by Church. As a result of the scheme, LAOD has become an empty shell.

2. Course of Proceedings

On November 15, 2019, the court granted Church’s ex parte application for a temporary restraining order (“TRO”) and order to show cause re: preliminary injunction (“OSC”) and set the hearing date for the matter for December 5, 2019.

On November 26, 2019, the court denied Defendants’ ex parte application for immediate termination of the TRO and continued the OSC to the instant date. The court informed the parties that it would not rely on the Complaint as evidence.

According to proofs of service on file, Church personally served all Defendants with the Summons, Complaint, and the order on November 16, 2019.

B. Applicable Law

An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. CCP §525. An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[3] It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424.

The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623. The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402.

A preliminary injunction is issued after hearing on a noticed motion. The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).[4] Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150. Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. See CCP §527(a). For this reason, a pleading alone rarely suffices. Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007). The burden of proof is on the plaintiff as moving party. O’Connell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481.

A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. The concept of “inadequacy of the legal remedy” or “inadequacy of damages” dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565.

In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the “irreparable harm” that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. CCP §526(a)(2); 14859 Moorpark Homeowner’s Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636. Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304. The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920.

C. Book of Church Order

In order to form a church session, there shall be at least 20 communicant members of the church. The session will consist of the pastor and the ruling elders of the church. Chapter 8, Art. 1, Sohn Decl. Ex. 1, p.48.

The office of moderator of the session is filled by the pastor in charge of a local church. When a church is without a pastor, the presbytery to which the church belongs shall appoint a minister until a pastor Is installed, but in circumstances beyond control, the session may, even without the presence of a minister to act as moderator, take actions on church business, except for judicial cases and other matters of special importance. Chapter 8, Art. 4, Sohn Decl. Ex. 1, p.48.

The session has authority to exercise jurisdiction over its members and to discipline church members. Chapter 8, Art. 5, Sohn Decl. Ex. 1, p.48.

The presbytery shall have general oversight of sessions, local congregations, ministers, evangelists, candidates for ministry, and all the unorganized churches within its bounds. Chapter 9, Art. 6, Sohn Decl. Ex. 1, p.52.

The presbytery may entrust the work of appointing an interim pastor or any interim session moderator to the visitation committee or to a special committee, so that he may temporarily oversee the church without an installed pastor until the presbytery convenes. Chapter 9, Art. 6, Sohn Decl. Ex. 1, p.52.

When an internal dispute arises in the local church that is within the jurisdiction of a presbytery, regarding membership in the presbytery and the ownership of church property, the right to manage the church property shall temporarily be placed within the hands of the presbytery until the dispute is resolved and the normal operation of the church is restored. Chapter 9, Art. 6, Sohn Decl. Ex. 1, p.54.

The General Assembly shall consist of ministers and ruling elders commissioned by the respective presbyteries; their names shall be sent to the stated clerk of the General Assembly no less than two months before the meeting is convened. Chapter 10, Art. 2, J. Kim Decl. Ex. B-1, p.55.

The General Assembly shall meet annually on the date appointed. If for any reason the moderator is unable to be present, the vice-moderator or the moderator of the preceding assembly shall issue the call to order and shall remain in office until a new moderator is elected. No delegate shall have a right of membership in the General Assembly until he is enrolled and the roll is taken. Chapter 10, Art. 6, Kim Decl. Ex. B-1, p.56.

On the day appointed for the meeting, more than half of the presbyteries must be represented, and more than half of the ministers and ruling elders who are delegates must be present to constitute a quorum for the transaction of business. Chapter 10, Art. 3, J. Kim Decl. Ex. B-1, p.55.

The General Assembly shall superintend all the affairs of all the congregations and the courts and their interrelations and shall receive for action from the lower courts references, requests, complaints, appeals, questions, and cases that are lawfully submitted to the Assembly. Chapter 10, Art. 4, J. Kim Decl. Ex. B-1, p.55.

D. Statement of Facts[5]

1. Plaintiff’s Evidence[6]

a. Background

Church was incorporated as a California non-profit religious corporation in 1973. Ko Decl[7]. ¶7. Since its incorporation, Church has been a Presbyterian church in its ecclesiastical structure, whether as an independent church or affiliated with a national Presbyterian denomination. The Session – consisting of the teaching elder (called a pastor commissioned by the Presbytery) and the ruling elders (elected by the congregation) -- is the governing body of Church in managing its affairs, both corporate and ecclesiastical. Ko Decl. ¶7. The Session is analogous to a secular corporate board of directors. Ko Decl. ¶7.

As a Presbyterian church, Church is affiliated with a presbytery -- which is a regional governing body consisting of local churches and its minister -- for the purpose of carrying out common goals and missions under the Presbyterian faith and polity. Ko Decl. ¶8. The presbytery is affiliated with a national church or may exist as an independent presbytery without any national church affiliation. Ko Decl. ¶8. In 2013, Church was affiliated with the Central Presbytery of the Korean American Presbyterian Church ("KAPC"). KAPC. Ko Decl. ¶¶ 8-9.

Starting in early 2013, there was a dispute within KAPC surrounding Defendant Park and the ownership and control of the International Reformed University and Seminary ("IRUS"). Ko Decl. ¶9. After the KAPC annual national meeting in May 2013, a national church known as the World Korean Presbyterian Church ("WKPC"), a California non-profit religious corporation, broke out of KAPC and formed in 2014. Ko Decl. ¶9. The Los Angeles Presbytery (“LA Presbytery”) then withdrew its affiliation with KAPC and became affiliated with WKPC. Ko Decl. ¶9. Church also withdrew its affiliation with Central Presbytery of KAPC and became affiliated with the LA Presbytery of WKPC. Ko Decl. ¶9.

Both KAPC and WKPC have adopted the Book of Church Order ("BOCO"), which is most commonly used among Korean-American Presbyterian churches as their constitution and governing document. Ko Decl. ¶10. “Form of Government” in the BOCO sets forth the ecclesiastical governing principles as Presbyterian churches. Ko Decl. ¶10.

The LA Presbytery has the regional ecclesiastical authority over the affairs of the local churches, including (without limitation) organizing and dismissing the session, assuming jurisdiction of the session, supervising the affairs of the local churches, and resolving and making the final determination regarding any property dispute in a local church. Ko Decl. ¶14. Additionally, when an internal dispute arises in the local church that is within the jurisdiction of a presbytery, regarding membership in the presbytery and the ownership of church property, the right to manage church property shall temporarily be placed within the hands of the presbytery until the dispute is resolved and the normal operation of the local church is restored. Ko Decl. ¶14.

The session is the governing body of a church, even when the church is independent without any national church affiliation. Ko Decl. ¶11. Pursuant the BOCO, the pastor of the local church is the moderator of the session. When a church is without a pastor, the presbytery to which the church belongs shall appoint a minister until a pastor is installed. Ko Decl. ¶11.

The Session is exclusively charged with the authority to possess, control, and manage Church’s property, including the Property and parcels located at 1214 S. Fairfax Avenue, 1232 S. Fairfax Avenue, 1236 S. Fairfax Avenue, and 1244 S. Fairfax Avenue (collectively, "Church Property"). Ko Decl. ¶12.

b. March 2018 Dispute

In March 2018, there was a dispute between two factions in Church, with one faction supporting a former, ex-communicated senior pastor and the other faction recognized by the LA Presbytery. The dispute resulted in a lawsuit entitled Korean Western Presbyterian Church of l.os Angeles v. Geon Oh Seo, et al., BC 698722 ( the "Underlying Action"). Ko Decl. ¶15; Elder Kim Decl. ¶4. A judgment was entered in the Underlying Action on July 24, 2019 in favor of the Church and against all named defendants. Ko Decl. ¶15; Elder Kim Decl. ¶4.

Because of this dispute over Church property, the LA Presbytery commissioned a Dispute Resolution Committee to oversee the Session, and it also appointed Reverend Joo Mo Ko (“Ko”) as interim moderator and pastor of Church. Ko Decl. ¶16. Between March 2018 and November 1, 2019, the Session consisted of Ko (as interim moderator), Bong Kyu Kim ("Elder Kim"), and Nathanael Yun ("Elder Yun"). Ko Decl. ¶16; Elder Kim Decl. ¶¶ 5-6.

Elder Yun was removed from the Session on November 1, 2019. Ko Decl. ¶16; Elder Kim Decl. ¶¶ 5-6; Ra Decl. ¶4. Since November 1, 2019, the Session consists of Ko, Reverend Ra, and Reverend Paul K. Choi (“Paul”). Ko Decl. ¶16; Elder Kim Decl. ¶¶ 5-6; Ra Decl. ¶4.

c. Merger Discussions

Neither of Defendants Park and LAOD is a member of the LA Presbytery. Ko Decl. ¶17.

LAOD has been a tenant at Church Property since November 2018. Ko Decl. ¶17. LAOD and Church entered into a five-year commercial lease dated October 1, 2018 (“Lease"), for LAOD to rent the Property at a monthly rent of $15,000, commencing on November 1, 2018. Ko Decl. ¶18; Elder Kim Decl. ¶8. Under the Lease, LAOD was permitted to use 60% of the leased premises, and Church would use 40%. Ko Decl. ¶18; Elder Kim Decl. ¶8. Since the commencement of the Lease, LAOD has occupied and used almost 90% of Church Property. Elder Kim Decl. ¶8.

In late September 2018, Church and LAOD began to talk about a possibility of merging the two churches after their respective legal matters were finalized. Ko Decl. ¶17. At the time, the Church’s Underlying Action was pending and LAOD was dealing with judgment-creditor ECCU in the LAOD Action. Ko Decl. ¶17. Park assured Church that LAOD would not cause any harm to Church due to the LAOD Judgment. Ko Decl. ¶17. Based on that representation, Church agreed to discuss the merger. Ko Decl. ¶17.

In December 2018, Park expressed his desire to be an interim moderator and pastor of Church, appointed by Western Presbytery (Hapdong), so that he could oversee and control both LAOD and Church. Ko Decl. ¶19. Ko told Park that his request could not be granted unless he transferred his membership to the LA Presbytery and was appointed by it in compliance with BOCO. Ko Decl. ¶19. Park rejected Ko's suggestion. Ko Decl. ¶19.

By August 2019, it became apparent that LAOD could not resolve its legal matters with ECCU in the LAOD Action, let alone satisfy the LAOD Judgment. Ko Decl. ¶20. Church notified Park and LAOD that any further discussion of the merger would be tabled until the LAOD Action was finalized, including satisfaction of the LAOD Judgment. Ko Decl. ¶20. Park became furious and claimed that LAOD became a tenant only because two churches agreed to merge, and he argued that he was senior pastor of both LAOD and Church. Ko Decl. ¶20. Park claimed that LAOD and Church were one church under Park's pastoral authority. Ko Decl. ¶20.

Thereafter, Park unilaterally announced during services that LAOD’s name was changed to “Western Open Door Presbyterian Church” since the two churches agreed to merge. Church refuted the foregoing claims, especially the name change. Thereafter, Church ceased any further discussion of the merger. Ko Decl. ¶20.

d. Defendants’ Alleged Scheme

On November 9, 2018, a writ of execution was issued to enforce the LAOD Judgment. Ko Decl. ¶21. On July 9, 2019, the court appointed a receiver to enforce the LAOD Judgment (“July 9 Order”). Ko Decl. ¶21.

After the July 9 Order, Park instructed members of LAOD to make offerings outside LAOD’s regular services, which were diverted to undisclosed third parties. Ko Decl. ¶23. The Receiver’s most recent Inventory and Status Report dated September 18, 2019, states in part that LAOD's monthly operating expenses are approximately $90,000; LAOD collected over $114,000 per month until June 2019, and after that date it has collected less than $78 per week. Ko Decl. ¶23.

Park subsequently told Ko to cease all Church activities, including its Sunday service, which the Session rejected. Ko Decl. ¶24. Thereafter, Park caused Elder Yun to unilaterally submit a request at the LA Presbytery’s September 10, 2019 meeting to replace Ko with Defendant Choi as an interim moderator and pastor of Church. Ko Decl. ¶24. Elder Yun's request, submitted without the Session's approval, was rejected by the LA Presbytery. Ko Decl. ¶24.

After October 29, 2019, Defendant Choi, under Park's direction and acting on behalf of the Western Presbytery (Hapdong), asserted his right to possess, control and manage Church’s Property as pastor of Church. Ko Decl. ¶26.

On November 3, 2019, members of LAOD physically blocked Ko from entering the chapel to conduct the regularly scheduled service. Ko Decl. ¶26. Defendant Choi also distributed a purported worship bulletin of Church with his name as pastor of Church and held a purported worship service of Church with members of LAOD. Ko Decl. ¶26. In mid or late October 2019, Park instructed LAOD pastoral and administrative staff members to place stickers or tags with Church’s name on all of LAOD’s personal property to mislead the Receiver. Ko Decl. ¶26.

On November 1, 2019, LA Presbytery’s Executive Officers Committee held a meeting and adopted a Resolution, effective the same day, (i) assuming jurisdiction of the Session, (ii) expelling Elder Yun from Church and the LA Presbytery, (iii) expelling Defendant Choi from the LA Presbytery, and (iv) appointing Ra and Paul as acting members of the Session (the “November 1 Resolution”). Ko Decl. ¶27; Ra Decl. ¶¶ 4-5.

Following the November 1 Resolution, the Session dismissed Defendant Choi and notified him of his removal. Ko Decl. ¶27; Ra Decl. ¶¶ 4-5.

On November 5, 2019, Defendant Choi emailed his membership withdrawal from the LA Presbytery. Ko Decl. ¶¶ 28-20; Ra Decl. ¶6. Defendant Choi also submitted by email Church's purported notice of withdrawal from the LA Presbytery, a withdrawal that was allegedly decided at a special general congregational Church meeting on November 5, 2019. Ko Decl. ¶30; Ra Decl. ¶7. The November 5 congregational meeting did not meet any of the BOCO requirements for properly convening such a meeting. Ko Decl. ¶¶ 31-33.

On November 8, 2019, the LA Presbytery called a special meeting for November 18, 2019. At the November 18 special meeting, the LA Presbytery ratified the November 1 Resolution. Ko Decl. ¶¶ 34-35; Ra Decl. ¶¶ 9-10. It was further resolved that Reverend Suk Ho Jin (“Jin”) would be dismissed as moderator of the LA Presbytery and Ko would become the acting moderator until the next regular LA Presbytery meeting. Ko Decl. ¶¶ 34-35; Ra Decl. ¶¶ 9-10.

On November 23, 2019, Jin called a special LA Presbytery meeting to expel Ko and Ra and invalidate the November 1 Resolution. Ko Decl. ¶36; Ra Decl. ¶¶ 11-13; Elder Kim Decl. ¶7. Park and the moderator of the Western Presbytery (Hapdong) were present at the meeting and refused to leave when an objection was made to their presence. The LA Presbytery rejected the motion to expel Ko and Ra. Ko Decl. ¶ 37; Ra Decl. ¶14; Elder Kim Decl. ¶7.

Defendants continue to interfere with Church’s right to possess, control and manage its property. Elder Kim Decl. ¶9. On November 16, 2019, Defendant Choi entered Church property and removed Church's books and records, including checks, from its offices. Elder Kim Decl. ¶9. Defendant Choi also replaced Church office locks. Elder Kim Decl. ¶9. Church had to replace the locks at additional cost. Elder Kim Decl. ¶9.

2. Defendants’ Evidence

Choi had been a co-pastor at Church since April 2018, about the same time as Ko joined Church. Choi Decl. ¶2. Choi handled almost all administrative tasks for Church, including managing the Property. Choi Decl. ¶2.

In November 2018, LAOD and Church entered into the Lease. Choi Decl. ¶4. LAOD pays $15,000 per month in rent and its contribution is crucial to the upkeep of the Church’s operations. Choi Decl. ¶4. Church is not able to maintain the Property without LAOD’s rent payments. Choi Decl. ¶4. Because of this fact, Choi attended LAOD’s meetings to represent Church and maintain good relations. Choi Decl. ¶4.

Church and LAOD tentatively agreed to merge once they were able to resolve their legal issues. Choi Decl. ¶4. In September 2019, Ko changed his attitude towards LAOD and instructed Choi to cease activities with LAOD. Choi Decl. ¶5. This put Choi in a difficult position because he had established friendly relations with LAOD and wanted the relationship to continue. Choi Decl. ¶5. Elder Yun and Reverend Samuel Kim (“Samuel”) also wished to keep friendly relations and supported the merger with LAOD. Choi Decl. ¶5. Choi continued to try and maintain good relations. Choi Decl. ¶5.

In September 2019, Elder Yun, as Clerk of the Session, sent a letter to the LA Presbytery asking that it appoint Choi as Church’s interim moderator. Yun Decl. ¶10, Ex. 2. The LA Presbytery did not respond.

In October 2019, Elder Yun and Samuel requested that the LA Presbytery remove Ko from Church as an interim moderator and appoint Choi instead. Choi Decl. ¶¶ 6-7; Yun Decl. ¶10, Ex. 2. The request was appropriate because Ko was originally hired as an interim moderator to defend against a lawsuit. With that lawsuit now resolved, Church needed a more permanent leader. Choi Decl. ¶¶ 6-7; Yun Decl. ¶¶ 6-9. The LA Presbytery rejected the request. Choi Decl. ¶7.

Elder Yun and Samuel then submitted a request to the Western Presbytery (Hapdong) to appoint Choi as Church’s pastor. Choi Decl. ¶8; Yun Decl. ¶12, Ex. 4; Seo Decl. ¶4. This was possible because Church has a dual membership in both the LA Presbytery and Western Presbytery (Hapdong). Choi Decl. ¶8. On October 28, 2019, Elder Yun informed the LA Presbytery that Church would no longer accept Ko as interim moderator of the Session. Yun Decl. ¶14, Ex. 6.

On October 29, 2019, Western Presbytery (Hapdong) formally appointed Choi as Church’s interim moderator. Choi Decl. ¶8; Yun Decl. ¶15; Seo Decl. ¶5. Choi and Elder Yun held a Session meeting the same day wherein the Session decided: (1) to remove Ko from the Session and Church and revoke his responsibilities as interim moderator; (2) that Elder Yun, Samuel, and Choi would terminate their membership with the LA Presbytery; (3) call a Church congregational meeting on November 5, 2019; (4) Church’s congregation would join the California Presbytery under the WKPC General Assembly. Choi Decl. ¶8; Yun Decl. ¶16; Seo Decl. ¶5.

At Ko’s request, Jin, moderator of the LA Presbytery, called an Executive Committee meeting for November 1, 2019. Jin Decl. ¶4; Park Decl. ¶4. At the meeting, Ko purported to dismiss Choi and Elder Yun in violation of the BOCO, which requires that church elders be part of the meeting, and despite Jin’s advisement that the Executive Committee could not discipline local church members or expel Choi. Choi Decl. ¶9; Jin Decl. ¶¶ 4-5; Park Decl. ¶5. Thus, Ko and Ra passed the November 1 Resolution without having authority to do so. Jin Decl. ¶¶ 7-8; Yun Decl. ¶¶ 23-25; Park Decl. ¶¶ 6-7.

Choi notified Church’s congregation of a November 5 meeting, at which the 25 people in attendance unanimously voted to remove Ko from the Session and Church, discontinue Church’s membership in the LA Presbytery, and join the California Presbytery. Choi Decl. ¶10.

The General Assembly of WKPC (“General Assembly”) condemned Ko’s actions and expelled him from the LA Presbytery and WKPC on November 23, 2019. Choi Decl. ¶12A. On November 16, 2019, the Western Presbytery (Hapdong) issued an order removing Ko as moderator of Church and directed him not to conduct worship services at the Church. Seo Decl. ¶7, Ex.1.

Jin did not resign at the LA Presbytery meeting on November 18, 2019 and he was not dismissed. Jin Decl. ¶10; Park Decl. ¶15. Jin did not call the November 18, 2019 special Presbytery meeting and drafted a letter informing all members not to attend the meeting. Jin Decl. ¶14; Park Decl. ¶¶ 9-10. The General Assembly provided verification of the LA Presbytery’s membership with the WKPC. Na Decl. ¶7, Ex. 2. The Western Presbytery (Hapdong) also provided verification that Church is a member in it. Seo Decl. ¶8, Ex. 2.

Jin called the November 23, 2019 LA Presbytery meeting to censure Ko and Ra for improperly calling the November 18 meeting. Jin Decl. ¶15; Park Decl. ¶11. On November 16, 2019, the LA Presbytery received Choi and Elder Yun’s appeal from Ko’s order expelling them. Jin Decl. ¶17; Na Decl. ¶5. Jin and Reverend Ki Duck Park (“Ki”) investigated the appeal and added more charges against Ko, Ra, and Paul. Jin Decl. ¶17.

The November 18 LA Presbytery meeting was invalid because the meeting was improperly called, and all business conducted at the meeting is invalid. Ko cannot call a presbytery meeting; only Jin or Ki can call such a meeting. Jin Decl. ¶19. There also were no qualified ruling elders at the November 18 meeting. Jin Decl. ¶¶ 20-21.

At the November 23, 2019 LA Presbytery meeting, the LA Presbytery found that the November 1 Resolution was false. Jin Decl. ¶25, Ex. 2; Park Decl. ¶12. The LA Presbytery removed Ko, Ra, and Paul from Church and expelled and terminated Ko and Ra from the LA Presbytery. Jin Decl. ¶26, Ex. 1; Park Decl. ¶14. The LA Presbytery also censured those members who attended the meeting. Jin Decl. ¶26, Ex. 1. The local officers of the General Assembly were present at the November 23, 2019 meeting as observers and found that the meeting was properly called and held. Jin Decl. ¶27, Ex. 3; Na Decl. ¶¶ 9-11, Ex. 3.

Choi was not aware the TRO had taken effect on November 15, 2019 and did not intend to violate it when he arrived at the church on November 16, 2019. Choi Decl. ¶12B. Choi has not entered Church Property since November 16, 2019. Choi Decl. ¶12C.

3. Reply Evidence

LAOD is and has been a tenant at Church’s Property since October 2018, but it has not made any monthly rent payments since November 15, 2019. Elder Kim Reply Decl. ¶4.

Since 1980, Church has never been a member of, nor affiliated with, the Western Presbytery (Hapdong) and has never been under its jurisdiction or supervision. Elder Kim Reply Decl. ¶¶ 5-6; J. Kim Decl. ¶3; Lee Decl. ¶2; Yi Decl. ¶2; Chung Decl. ¶2; Nah Decl. ¶2; Lim Decl. ¶2; Ra Reply Decl. ¶2; Ko Reply Decl. ¶2.

At the November 18, 2019 meeting, Jin was removed as moderator of the LA Presbytery and Ko was appointed the acting moderator. Elder Kim Reply Decl. ¶9; J. Kim Decl. ¶¶ 4-5, Ex. B-2; Lee Decl. ¶¶ 3-4; Yi Decl. ¶¶ 3-4; Chung Decl. ¶¶ 3-4; Nah Decl. ¶¶ 3-4; Lim Decl. ¶¶ 3-4; Ra Reply Decl. ¶¶ 4-5; Ko Reply Decl. ¶¶ 4-5.

Jin presided over the November 23, 2019 meeting over the objection that he was no longer moderator. His motion for the dismissal and expulsion of Ko and Ra from the LA Presbytery also was denied. Elder Kim Reply Decl. ¶¶ 11-12; J. Kim Decl. ¶¶ 6-8, Ex. B-3; Lee Decl. ¶¶ 5-7; Yi Decl. ¶¶ 5-7; Chung Decl. ¶¶ 5-7; Nah Decl. ¶¶ 5-6; Lim Decl. ¶¶ 5-7; Ra Reply Decl. ¶¶ 6-8; Ko Reply Decl. ¶¶ 6-8.

The purported November 23, 2019 decision of the General Assembly (J. Kim Decl. Ex. B-4) did not comply with provisions of the BOCO in that: (1) the meeting was not held on the annual date for the General Assembly meeting; (2) no quorum was constituted; (3) more than half the presbyteries must be represented at a General Assembly meeting, (4) more than half of the ministers and ruling elders must be present to make a quorum, and (5) no resolution regarding the dismissal and/or expulsion of Ko and Ra had been adopted at the special meeting of the LA Presbytery. Just a few individuals “cannot make any decision on behalf of the General Assembly. J. Kim Decl. ¶¶ 9-17, Ex. B-1; Lee Decl. ¶¶ 8-16; Yi Decl. ¶¶ 8-16; Chung Decl. ¶¶ 8-16; Nah Decl. ¶¶ 8-16; Ra Reply Decl. ¶¶ 9-17; Ko Reply Decl. ¶¶ 9-17.

E. Analysis

This case is another in a distressing number of lawsuits disputing the usage and control of Church Property. Church applies for a preliminary injunction restraining Defendant Choi from using Church’s name, logo, website, and other information and restraining Choi, Western Presbytery (Hapdong), and LAOD from interfering with Church’s possession and control of its Property, entering the Property without permission, and disrupting and/or interfering with Church meetings, events, and activities on the Property.

1. Jurisdictional Issues

Defendants Western Presbytery (Hapdong) and Choi argue that this case is this case is not a dispute of who owns and controls Church Property. Rather, it is a dispute between minister Ko -- who was appointed by the LA Presbytery as interim moderator and not called by Church -- and the Session, over governance of Church. Western Pres. Opp. at 1-2; Choi Opp. at 2. They contend that the dispute is an ecclesiastical matter and the court must defer any inquiry to Ro’s termination as interim moderator, the LA Presbytery’s November 23, 2019 findings, and the General Assembly’s affirmance of the LA Presbytery’s November 23 findings. Id. at 6-7.

The LA Presbytery’s November 23, 2019 findings set aside, inter alia, the November 1 Resolution, which (a) assume jurisdiction over the Session, (b) expelled Choi, (c) appointed Ra and Paul as acting members of the Session, and (d) dismissed Jin as moderator of the LA Presbytery and made Ko the acting moderator. Ko Decl. ¶¶ 34-35; Ra Decl. ¶¶ 9-10. The LA Presbytery’s November 23, 2019 meeting also expelled Ko and Ra. Ko Decl. ¶36; Ra Decl. ¶¶ 11-13; Elder Kim Decl. ¶7. Also on November 23, 2019, the General Assembly affirmed these findings.

The operation of the First and Fourteenth Amendments of the United States Constitution mandates that California courts defer to the decisions of ecclesiastical courts or tribunals when such bodies make determinations which touch and concern matters of religious doctrine, including the governance, administration, and adjudication of the internal affairs of ecclesiastical institutions. See, e.g., Serbian Eastern Orthodox Diocese v. Millivojevich, (1976) 426 U.S. 696, 724-25; Korean United Presbyterian Church v. Presbytery of the Pacific, (“Korean United”) (1991) 230 Cal.App.3d 480, 502; and Korean Philadelphia Presbyterian Church v. California Presbytery, (2000) 77 Cal.App.4th 1069, 1089.

Issues relating to a religious organization’s governance of its internal affairs are appropriately matters for the ecclesiastical adjudicatory bodies of that organization, and the court must defer to the decisions of those bodies. Serbian Eastern Orthodox Diocese v. Millivojevich, supra, 426 U.S. at 724-25; Korean United, supra, 230 Cal.App.3d. at 500. Even when a church dispute involves questions of ownership of property and other assets, civil courts must defer to the authoritative decisions of hierarchical ecclesiastical bodies on any matters of internal church policy necessarily involved in resolving the issue. Episcopal Church Cases, (2009) 45 Cal.4th 467, 484; Concord Christian Center v. Open Bible Standard Churches, (2005) 132 Cal.App.4th 1396, 1412.

When adjudicating disputes which are susceptible to the application of neutral principles of law, such as property disputes, it is proper for the civil courts to apply those principles to the dispute, rather than deferring to the adjudicatory bodies of the relevant ecclesiastical organizations. See, e.g., Jones v. Wolf, (1979) 443 U.S. 595, 604 (a state is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute and holding that application of acceptable neutral-principles analysis involves the examination of certain religious documents for language purporting to create trusts in favor of the general church), and id. at 602 (“First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice, instead requir[ing] that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization, but that [s]ubject to these limitations, ...the First Amendment does not dictate that a state must follow a particular method of resolving church property disputes”).

In making decisions about property ownership, the court should consider deeds to the property, the local church’s articles of incorporation, the general church’s constitution, canons, and rules, and relevant statutes. Episcopal Church Cases, supra, 45 Cal.4th at 484. A religious organization’s constitution and bylaws includes canons, constitutions, or rules of other bodies, church traditions if sufficiently ascertainable; rules of a religious superior; and similar sources. New v. Kroger, (2008) 167 Cal.App.4th 800, 822 (citations omitted). Civil courts must accept the leaders’ of hierarchical churches interpretation of their own rules and canons. Id. at 825. Although the First Amendment proscribes courts from being involved in disputes over church doctrine, and courts must defer to the position of the highest ecclesiastical authority on questions of religious doctrine, a church cannot ignore its corporate form and duty to observe statutory corporate formalities. Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American District of the Assemblies of God, et al., (2009) 173 Cal.App.4th 420, 433-35 (church had not complied with statutory requirements in board elections).

In Korean United Presbyterian Church v. Presbytery of the Pacific, (“Korean United”) (1991) 230 Cal.App.3d 480, a primary leader of the local church persuaded a majority of the congregation that the church should leave the denomination. The higher authority responded by appointing new leadership for the local church. The higher authority determined that the minority represented the true church and was entitled to possession of church property. Id. at 494. The Korean United court held that which group is the “true church” is “clearly ecclesiastical” and the ecclesiastical authorities’ determination of the issue is binding for the court. Id. at 500-03.

This law demonstrates that the court cannot interfere in purely ecclesiastical matters, such as who is the appropriate Church pastor. The court should not delve into the LA Presbytery’s efforts on November 18 to dismiss Jin as moderator of the LA Presbytery and make Ko the acting moderator, or its efforts on November 23 to expel Ko and Ra. The court does not know – and does not need to know – who the appropriate pastor or interim moderator is for Church’s ecclesiastical issues. See Metropolitan Philip v. Steiger, (2000) 82 Cal.App.4th 923, 931-32 (court could not determine under neutral principles which group should lead the “true church”).

However, the court does not agree that this dispute lies between minister Ko and the Session over governance of Church, or at least not entirely. The dispute is also between the LA Presbytery, Church, and Western Presbytery (Hapdong) over control and management of Church Property. The court is not required to defer to any findings of the LA Presbytery or the General Assembly insofar as they bear on any person’s authority to manage Church Property. See also Reply at 5 (discussing cases that may permit marginal civil review of ecclesiastical decisions that are the product of fraud, collusion, or arbitrariness).

2. Probability of Success

Church asserts that it has demonstrated a probability of success because Choi was expelled from Church and the LA Presbytery pursuant to the November 1 Resolution, and he has no right to interfere with the Session’s right to control and manage the Church Property. Mot. at 19-20.

Church is a Presbyterian church in its ecclesiastical structure. Church also is a California non-profit religious corporation. Ko Decl. ¶7. As such, California’s law of corporate governance controls who runs Church’s secular affairs. BOCO is the constitution of the WKPC and is the highest governing document. The LA Presbytery is the regional governing body of WKPC of which Church is a member.[8] The Session – consisting of the teaching elder (a pastor commissioned by the Presbytery) and the ruling elders (elected by the congregation) -- is Church’s governing body in managing its affairs, both secular and ecclesiastical. Ko Decl. ¶7. The Session is analogous to a secular corporate board of directors. Ko Decl. ¶7. The pastor of a church is the session’s moderator. BOCO, p. 48. When a church lacks a pastor, the presbytery shall appoint an interim moderator who shall be a minister until a pastor is installed. BOCO, p. 48. The session shall purchase, own, manage, and sell a church’s real property. BOCO, p. 50. If any dispute arises regarding property ownership, the presbytery shall have the authority over the property until the dispute is resolved. BOCO, p. 50. Ko Decl., ¶3, 7, 15.

Church can be compelled to follow California law in corporate governance with respect to its Property. It also can be compelled to follow the religious documents of Church, the LA Presbytery, and WKPC to the extent that they concern ownership and control of Church Property. Jones v. Wolf, (1979) 443 U.S. 595, 606-07 (provisions in the constitution of general church can override local congregation’s desire to control local church property).

Plaintiffs application for a preliminary injunction turns on the legitimacy of the October 2019 request by Elder Yun and Samuel that Western Presbytery (Hapdong) appoint Choi as Church pastor. Choi Decl. ¶8; Yun Decl. ¶12, Ex. 4; Seo Decl. ¶4. According to Choi, this was possible because Church has dual membership with both the LA Presbytery and Western Presbytery (Hapdong). Choi Decl. ¶8. See also Yun Decl. ¶5

There is no documentary evidence to support this “dual membership” other than Choi’s declaration. Church disputes that Western Presbytery (Hapdong) had any authority and denies that Church is a member of, or has any affiliation with, that presbytery. Reply at 7-8. See Elder Kim Reply Decl. ¶¶ 5-6; J. Kim Decl. ¶3; Lee Decl. ¶2; Yi Decl. ¶2; Chung Decl. ¶2; Nah Decl. ¶2; Lim Decl. ¶2; Ra Reply Decl. ¶2; Ko Reply Decl. ¶2.

The evidence supports Plaintiff’s conclusion that Church and LAOD are separate. LAOD has been a tenant at Church Property since November 2018. Ko Decl. ¶17. In September 2018, Church and LAOD began to talk about a possibility of merging the two churches, but only after their respective lawsuits (the Underlying Action and the LAOD Action) were finalized. Ko Decl. ¶17. Park was rebuffed when he asked to be appointed by Western Presbytery (Hapdong) to be Church’s interim moderator and pastor. Ko, who was indisputably Church’s interim moderator, told Park that he would have to transfer his membership to, and be appointed by, the LA Presbytery. Ko Decl. ¶19. By August 2019, Church had notified Park and LAOD that any further discussion of the merger would be tabled until the LAOD Action was finalized, including satisfaction of the LAOD Judgment. Ko Decl. ¶20.

Thus, the evidence shows that Church is governed by the LA Presbytery and is not a member of the Western Presbytery (Hapdong). Consequently, no action by or on behalf of the Western Presbytery (Hapdong) has any bearing on the control and management of Church Property. Specifically, Western Presbytery (Hapdong)’s October 29, 2019 appointment of Choi as Church’s interim moderator was ineffectual. Since Choi had no authority, the Session meeting held by him and Elder Yun on October 29, 2019 calling for a November 5, 2019 Church congregational meeting for Church to join the California Presbytery also was ineffectual. So was Church congregation’s November 5 vote to remove Ko from the Session and Church, discontinue Church’s membership in the LA Presbytery, and join the California Presbytery. Choi Decl. ¶10. Church further demonstrates that the November 5 congregational meeting was not properly noticed and convened as required by BOCO. Mot. at 14, 20-21.

What about the validity of the LA Presbytery meetings of November 18 and 23, 2019? At a special meeting on November 18, 2019, the LA Presbytery ratified the Executive Officers Committee November 1 Resolution that, inter alia, (i) assumed jurisdiction of the Session, (ii) expelled Elder Yun from Church and the LA Presbytery, (iii) expelled Defendant Choi from the LA Presbytery,[9] and (iv) appointed Ra and Paul as acting members of the Session. Ko Decl. ¶¶ 27, 34-35; Ra Decl. ¶¶ 4-5, 9-10. The LA Presbytery also dismissed Jin as moderator of the LA Presbytery and made Ko the acting moderator until the next regular LA Presbytery meeting. Ko Decl. ¶¶ 34-35; Ra Decl. ¶¶ 9-10.

At a special LA Presbytery meeting called by Jin on November 23, 2019, the LA Presbytery found that the November 1 Resolution was false because Ko could not call a presbytery meeting. The meeting also was improperly noticed because there were no qualified Ruling Elder Commissioners at the November 18 meeting. Jin Decl. ¶¶ 19-21, 25, Ex. 2; Park Decl. ¶¶ 12, 14. The LA Presbytery also removed Ko, Ra, and Paul from Church and expelled and terminated Ko and Ra from the LA Presbytery. Jin Decl. ¶26, Ex. 1; Park Decl. ¶14.

Plaintiff contends that Jin could not call the November 23, 2019 LA Presbytery meeting because he had been removed as its moderator. Plaintiff also contends that the LA Presbytery denied Jin’s motion for the dismissal and expulsion of Ko and Ra. Elder Kim Reply Decl. ¶¶ 11-12; J. Kim Decl. ¶¶ 6-8, Ex. B-3; Lee Decl. ¶¶ 5-7; Yi Decl. ¶¶ 5-7; Chung Decl. ¶¶ 5-7; Nah Decl. ¶¶ 5-6; Lim Decl. ¶¶ 5-7; Ra Reply Decl. ¶¶ 6-8; Ko Reply Decl. ¶¶ 6-8. [10]

As stated ante, the court does not have the authority to resolve the parties’ dispute over the validity and result of the November 23 LA Presbytery meeting, at least insofar as it concerns who is the appropriate pastor, moderator, or member of Church or LA Presbytery. The court may or may not have the authority to resolve the notice and other BOCO compliance issues for the LA Presbytery meetings with respect to who controls Church Property. It is unnecessary to do so, however, because LA Presbytery, or potentially Church, clearly should be in charge of Church Property, while none of Choi, LAOD, or anyone affiliated with Western Presbytery (Hapdong) controls or manages Church Property.

Western Presbytery (Hapdong) argues that the Session is in charge of Church Property because BOCO permits a presbytery to manage church property only when there is an internal dispute within the church over property ownership and until the dispute is resolved can be addressed. West. Pres. Opp. at 8-9. However, that is exactly the case here.

Defendant Western Presbytery (Hapdong) also argues that (1) the LA Presbytery should have recalled Ko as interim moderator and allowed Church to have the minister of its choice as required by BOCO, and (2) the November 1 Resolution violated BOCO because (a) a presbytery cannot appoint the members of a session, (b) no resolution actually passed, and (c) Ko falsified the resolution and used it to obtain the TRO/OSC. West. Pres. Opp. at 8, 10-11. These arguments are untenable for the same reason that the court cannot decide who is the appropriate pastor, moderator, or Session member, and need not decide notice and other BOCO compliance issues for the LA Presbytery meetings to decide who controls Church Property.

Defendant Choi argues that BOCO only permits a presbytery to control real property, not personal property like bank accounts, website, and the like. Choi Opp. at 2. If arguendo LA Presbytery can only control Church’s real property under BOCO, Church would control that personal property. Such a conclusion would not aid Choi, whose authority stems from his purported appointment by Western Presbytery (Hapdong). Ko Decl. ¶29.

Choi also argues that Church’s Session did not authorize this lawsuit or the retention of Plaintiff’s counsel, pointing out that Ko as interim moderator is not authorized by BOCO to file a lawsuit and the Complaint is not signed by an officer of Church. Choi Opp. at 5-6. This is an issue of who properly controls Church. While Church does not state who authorized the suit, Elder Kim replies that he has not resigned from and remains a member of the Session. Kim Decl. ¶2. Implicit in this statement is that he, and potentially other members of the Session, authorized suit.

None of Choi, LAOD, or anyone affiliated with Western Presbytery (Hapdong) controls or manages Church Property, and that conclusion is sufficient to support Plaintiff’s probability of success that Defendants are interfering with Church’s control of its Property.[11]

3. Balance of Hardships

In determining whether to issue a preliminary injunction, the second factor which a trial court examines is the interim harm that plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach, (2014) 232 Cal.App.4th 1171, 1177. This factor involves consideration of the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo. Id.

If an injunction is not issued, Church will suffer harm from Defendants’ continued interference with its property rights and exercise of its religious activities on its Property.

If a preliminary injunction is issued, Defendant Western Presbytery (Hapdong) will suffer little harm as the status quo prior to its involvement will be maintained. Choi may suffer harm because he will lose is job as pastor of Church and will not be able to find other work as pastor while the case is pending and his security clearance may be at issue. Choi Opp. at 8; Choi Decl. ¶1.

The balance of hardships favors Church.

F. Conclusion

The application for a preliminary injunction is granted. Defendant Choi will be enjoined from using Church’s name, website, telephone number, fax number, federal and state tax identification numbers, and federal employer identification number. All opposing Defendants will be enjoined from interfering with Church’s possession, control, and management of its Property, entering onto the Property without permission, and disrupting and/or interfering with Church’s meetings, events, and activities on the Property.

The court must require a bond supporting the preliminary injunction. The purpose of a bond is to cover the defendant’s damages from an improvidently issued injunction. CCP §529(a). In setting the bond, the court must assume that the preliminary injunction was wrongly issued. Abba Rubber Co. v. Seaquist, (“Abba“) (1991) 235 Cal.App.3d 1, 15. The damages include any lost profits resulting from the injunction. See Allen v. Pitchess, (1973) 36 Cal.App.3d 321, 327-28. The attorney’s fees necessary to successfully procure a final decision dissolving the injunction also are damages that should be included in setting the bond. Abba, supra, 235 Cal.App.3d at 15-16. The greater the likelihood of the plaintiff prevailing, the less likely the preliminary injunction will have been wrongly issued, and that is a relevant factor for setting the bond. Oiye v. Fox, (2012) 211 Cal.App.4th 1036, 1062.

Church seeks a bond in the amount of $500. Choi seeks a bond of $100,000. The court will discuss the appropriate bond amount with the parties at the hearing.


[1] Plaintiff’s 19-page memorandum exceeds the 15-page limit of CRC 3.1113(d) by four pages. The court has exercised its discretion to read and consider it, but warns Plaintiff’s counsel to follow the page limit rules in the future.

[2] Defndants Western Presbytery of the Hapdong in the USA and Defendant Choi filed separate oppositions.

Defendant Choi purports to join the oppositions of both Defendant Western Presbytery and Defendants LAOD and Park, but the latter filed no opposition. LAOD and Park purport to join the oppositions of Defendants Western Presbytery (Hapdong) and Choi, but they filed no memorandum of points and authorities in support of the joinder. There is no statutory authority for a joinder, and certainly one would not be considered without a supporting memorandum. Plaintiff also states that it seeks no injunction against Park. Therefore, there are only two oppositions.

[3] The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713. A mandatory injunction — one that mandates a party to affirmatively act, carries a heavy burden: “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493.

[4] However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3).

[5] The court has ruled on the parties’ voluminous evidentiary objections by marking the courtesy copies provided to the court. The parties may review these rulings after the hearing.

[6] Defendant Choi objects to Plaintiff’s declarations supporting its moving papers because the declarant states in English that he/she is not fluent in English and that the declaration’s content was translated to him/her by Plaintiff’s counsel. Choi objects that Plaintiff should have used a certified interpreter and that the statement of “content” is vague. Choi Opp. at 5. While Choi is correct that a translator’s declaration should have been used, the objection is overruled. Choi also incorrectly relies on CRC 3.1110(g), which concerns the English translation of exhibits written in a foreign language, not declarations in English by persons not well-versed in English.

[7] Citations are to Ko’s second filed declaration. On November 26, 2019, the court informed Plaintiff’s counsel that the first Ko declaration impermissibly purported to incorporate by reference exhibits attached to the Complaint. The court also informed Plaintiff’s counsel that it would not consider the Complaint or its exhibits as evidence.

[8] The LA Presbytery previously was a member of the World Korean Presbyterian Church, but became affiliated with KAPC around 2014. Church, which had been a member of the Central Presbytery of KAPC, joined the LA Presbytery of WKPC. Ko Decl., ¶9.

[9] Defendant Choi also withdrew from the LA Presbytery on November 5, 2019. Ko Decl. ¶¶ 28-20; Ra Decl. ¶6.

[10] According to Defendants, local officers of the General Assembly of the WKPC – the Secretary General, Stated Clerk of the General Assembly, and three other officers -- were present as observers at the November 23, 2019 meeting. After the meeting, they met in a separate room and found that the meeting was properly called and that there was ample evidence to support its decision. Jin Decl. ¶27, Ex. 3; Na Decl. ¶¶ 9-11, Ex. 3.

Plaintiff correctly replies that the evidence of the purported November 23, 2019 decision of the General Assembly (J. Kim Decl. Ex. B-4) is too vague to be of value. This meeting also did not comply with BOCO in that (1) the November 23 meeting was not the annual meeting of the General Assembly, (2) more than half the presbyteries must be represented at a General Assembly meeting, and (3) more than half of the ministers and ruling elders must be present to make a quorum. J. Kim Decl. ¶¶ 9-17, Ex. B-1; Lee Decl. ¶¶ 8-16; Yi Decl. ¶¶ 8-16; Chung Decl. ¶¶ 8-16; Nah Decl. ¶¶ 8-16; Ra Reply Decl. ¶¶ 9-17; Ko Reply Decl. ¶¶ 9-17. Reply at 4-7. The November 23 meeting of a few General Assembly members adds nothing to the analysis.

[11] Plaintiff presents conclusory evidence that Defendants are engaging in a fraudulent scheme to defraud judgment-creditor ECCU in violation of Bus. & Prof. Code §17200. Mot. at 21-22. Plaintiff has not proved this legal theory (Choi Opp. at 2-3), but it does not impact the preliminary injunction issue that Defendants do not control Church Property.

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