Judge: David Sotelo, Case: 21STCV14591, Date: 2022-08-02 Tentative Ruling

Case Number: 21STCV14591    Hearing Date: August 2, 2022    Dept: 40

MOVING PARTY:   Defendants, Jang Geun Chung, Sung Ki Lee, Yeon Ho Lee, and Sarah Pak.

This case involves a series of related actions involving The Oriental Mission Church (“OMC”) and lawsuits by its two leading members against one another for breaches of fiduciary duties and defalcations. 

This new action was filed by Senior Pastor Kim on April 16, 2021 and alleges that Defendants, including Elder and Board member Jang Geun Chung, along with church members Sung Ki Lee, Yeon Ho Lee, and Sarah Pak, who each are also alleged to have been or are still employed by OMC, have used their positions at OMC to engage in actions constituting breaches of fiduciary duties and other torts. 

These include (without much more detail) the attempted embezzlement of $210,000.00 of OMC funds in the way of cashier’s checks, (Complaint, Ex. A); freezing OMC’s operational bank account (letter from bank attached, (Complaint, Ex. B); filing incorrect Statements of Information with the California Secretary of State, misrepresenting the elected positions in the State filings [Complaint, Ex. C]; informing the United States Citizenship and Immigration Services (USCIS) that the OMC no longer needed the services of Reverend Chan Woo Kim; preventing OMC from obtaining a second PPP loan; cancelling the pastoral payroll authority at OMC; cancelling the salary of musical performers; and physically interfering with Church operations, including threatening Church members. 

Based on this claimed conduct, OMC alleges (1) breaches of fiduciary duty, (2) negligence, (3) fraud, (4) negligent interference with prospective economic advantage, (5) unfair competition, (6) accounting, (7) declaratory relief, and (8) injunctive relief.  While it is not clear who filed this action on behalf of OMC, it appears it was filed Senior Pastor Kim or his appointees.  

Defendants in this action (including Elder Chung) demurred to the on August 6, 2021, arguing that the Complaint should be dismissed because (1) the Court lacks jurisdiction over the Complaint’s claims based on the Establishment Clause, (2) OMC does not have capacity to sue because the suit is brought by Senior Pastor Kim or his appointees on behalf of OMC, (3) there are related actions alleging the same claims as those stated in this action, (4) all the causes are action are not sufficiently pled, and (5) all the causes of action are uncertainty pled. 

Plaintiff OMC provided a bare bones opposition and Defendants have replied.

Judicial Notice

The court may take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (d) and (h).)¿ The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request and furnishes the court with sufficient information to enable it to take judicial notice of the matter.  (Evid. Code, §¿453.)  The court, however, may not take judicial notice of the truth of the contents of the documents.¿ (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)¿ Documents are only judicially noticeable to show their existence and what orders were made such that the truth of the facts and findings within the documents are not judicially noticeable.¿ (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.) 

Here, Defendants seeks judicial notice of the OMC’s Bylaws and of five records of the Superior Court in the 20STCV42005 and 21STCV04092 actions.  (See Mot., Judicial Notice Request; Reply, Judicial Notice Request.)  That Court takes judicial notice of these documents as requested to the extent of the documents’ existence and court orders made therein, if any.

First, the Court SUSTAINS the demurrer at to paragraphs 23 through 31 as these do not constitute  PLEADINGS in any way, shape or form, under California law: A complaint shall contain a statement of the facts consisting of the cause of action in ordinary and concise language.  Counsel for Plaintiff is admonished to keep what should be opposition argument separate for fact pleadings.

Demurrer

Meet and Confer: The Court finds that Defendants satisfied the meet and confer requirement pursuant to Code of Civil Procedure section 430.41, subdivision (a)(3)(B).  (Kim Decl., ¶¶ 3-8.)

Demurrer: Here, Defendants demurs to Plaintiffs’ Complaint’s entire complaint on the grounds that: (1) this Court lacks jurisdiction to hear the claims stated in the Complaint; (2) those who brought this action lack standing to do so; (3) insufficient facts are alleged in the Complaint to support the causes of action state therein; and (4) the causes of action in the Complaint are uncertainly pled.

Demurrer to Entire Complaint, Code Civ. Proc., § 430.10, subds. (a)-(c): OVERRULED

Jurisdiction and Establishment Clause - Code Civ. Proc., § 430.10, subd. (a)

A demurrer may be made to a complaint or cross-complaint on the basis that the court does not have jurisdiction over the subject matter of the cause of action in the pleading.  (Code Civ. Proc., § 430.10, subd. (a).)  Defendants here argue that the Court does not have jurisdiction to hear the present action because “all named defendants are current church members and the subject matters contained in the complaint are to be adjudicated by the OMC Session ‘based on the teachings of the Bible while maintaining the sanctity and peace of the Church’” consistent with provisions of the Bylaws of The Oriental Mission Church.  (See Demurrer, 3:13-5:19.)  “For these reasons,” argue Defendants, “this Court does not have jurisdiction over the subject matters (which are ecclesiastical matters) contained in the complaint as the Court’s involvement will be in violation of the Establishment Clause.”  However, a plain reading of defendants’ argument essentially amounts to: where our Bylaws provide for internal resolution of Member malfeasance, the laws of California do not apply.  The Court will not support such a finding.  Neither do Defendants provide any statutory or precedential support for their position outside of noting that the Honorable John P. Doyle judicially noticed OMC’s Bylaws.  However, the Court admonishes Defendants not to conflate judicial notice of the existence of a document providing structure to an organization to judicial notice of a nonexistent lack of jurisdiction over torts in the State of California.  Further, it is baffling for Defendants to argue on the one hand that this Court should judicially notice Department 58’s recognition of OMC’s Bylaws and on the other hand that the Court should decline to exercise jurisdiction over matters in the Complaint based on lack of jurisdiction over matters related to OMC.  Defendants’ demurrer to the Complaint based on lack of jurisdiction is OVERRULED.

Capacity - Code Civ. Proc., § 430.10, subd. (b)

A defendant can file a special demurrer on the ground that the person who filed the complaint does not have the legal capacity to sue.  (Code Civ. Proc., § 430.10, subd. (b).)  Capacity is a person’s ability to file (or defend) a suit.  (See Color-Vue, Inc v. Abrams (1966) 44 Cal.App.4th 1599, 1604.)  In general, any person or legal entity, including “artificial persons” such as corporations, partnerships, and associations, has capacity to file suit.  (Am. Alt. Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 559.)  A party lacks capacity if it suffers from a general disability, such as infancy, insanity, or some defect in how it has sued.  (Klopstock v. Superior Ct. (1941) 17 Cal.2d 13, 18; Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1592; see Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 641 [finding a corporation cannot prosecute or defend an action while its corporate status is suspended for failure to pay taxes].)  A plaintiff is not generally required to allege in the complaint the plaintiff's capacity to sue, because capacity to sue is not an element of the plaintiff's cause of action.  (Color-Vue, supra, 44 Cal.App.4th at p. 1605.)  A religious corporation has the capacity to sue and to be sued.  (See Corp. Code, § 10007, subd. (a); Am Alt., supra, 42 Cal.App,4th at p. 551.)

Here, Defendants allege that OMC does not have capacity to bring this action not because OMC as a corporation lacks capacity to sue, but rather, because the OMC representatives that bring this suit in OMC’s name do not have capacity to sue.  A distinction should be drawn between the lack of legal capacity to sue and the lack of standing to sue; legal capacity is the right to come into court, while standing to sue relates to the right to relief from the court.  (Klopstock, supra, 17 Cal. 2d at p. 18.)  “Every action must be prosecuted in the name of the real party in interest,” i.e., “the person who possesses the right to sue under the substantive law involved;” “anyone other than a real party in interest lacks standing and is subject to a [general] demurrer for the failure to state a cause of action.”  (City of Brentwood v. Campbell (2015) 237 Cal. App. 4th 488, 504.)  Here, the action is brought by OMC in its own name, not by OMC through Senior Pastor Kim in a representative capacity.  Further, a religious corporation has capacity to sue.  Consequently, there is no question that OMC has the capacity to bring this action and therefore, section 430.10, subdivision (b) is no bar to this action insofar as OMC has capacity to sue.  Instead, a demurrer may more properly lie in the position that OMC is not entitled to relief because OMC is not authorized to file this lawsuit.

Accordingly, Defendants’ demurrer to the Complaint in this action on the ground of lack of capacity is OVERRULED.

Related Action Pending on Same Claims - Code Civ. Proc., § 430.10, subd. (c)

A defendant can file a special demurrer to a complaint under Code of Civil Procedure section 430.10, subdivision (c) on the ground that there is another action pending between the same parties on the same cause of action.  (Code Civ. Proc., § 430.10, subd. (c); see Bescos v. Bank of Am. (2003) 105 Cal.App.4th 378, 396-97.)  A demurrer filed on this ground is sometimes referred to as a plea in abatement.  (See Plant Insulation Co. v. Fibreboard Corp. (1992) 224 Cal.App.3d 781, 787.)  If a demurrer is sustained on this ground, the second action should be stayed, but not dismissed, pending the termination of the first action.  (Id. at p. 788.)  To success on a plea in abatement demurrer, the movant must show three things: (1) there are multiple actions pending in California courts, (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574); (2) the parties in both actions are the same and stand in the same relative position as plaintiff and defendant, (see Plant Insulation, supra, 224 Cal.App.3d at p. 787); and (3) both actions are based on substantially the same action, i.e., judgment in the first action would bar recovery in the second action, (Lord v. Garland (1946) 27 Cal.2d 840, 848.)

Here, there are two actions related to the present action: LASC 20STCV42005 and 21STCV04092.  In the 20STCV42005 action, OMC is a plaintiff, as is Elder Chung, and Senior Pastor Kim is a defendant, as are Administrative Pastor In Chan Park and former CFO Kwang Chan Kim.  The FAC alleges conversion, declaratory relief, injunctive relief, removal of corporate director, and appointment of corporate director.  The 21STCV04092 action involves OMC Elder Chung and various defendants in this action, against Senior Pastor Kim, Kwang Chan Kim, and Jongkoo Cho, seeking a determination of the validity of the appointment of the latter two defendants to the OMC’s Session, as well as declaratory relief.  Based on these circumstances, there are multiple actions pending in California courts related to the parties in this action.  However, the parties do not stand in the same relative position as plaintiff and defendant.  In this action, Senior Pastor Kim and individuals associated with him appear to have filed this Complaint, making the Plaintiffs along with OMC, whereas Kim is a defendant in actions 20STCV42005 and 21STCV04092.  Further, the claims in this action differ from those in the related actions.  In 21STCV04092, Elder Chung objected to Senior Pastor Kim’s attempted election of two new members to OMC’s board (the Session) and nothing else, differing completely from the eighth putative causes of action in this Complaint.  The claims in this action do overlap with those in 20STCV42005, but do not completely overlap as to bar recovery in the second action.  Both actions allege cross breaches of fiduciary duties to OMC by Elder Chung or Senior Pastor Kim in turn, as well as claims for declaratory and injunctive relief.  However, the present action also includes claims for negligence, fraud, negligent interference with prospective economic advantage, unfair competition, and accounting.  Thus, demur is not proper based on Code of Civil Procedure section 430.10, subdivision (c), because the two related actions to this suit (20STCV42005 and 21STCV04092) would not bar recovery in this action.

Accordingly, Defendants’ demurrer to the Complaint in this action on the ground of related actions pending on the same claims is OVERRULED.

First Cause of Action, Breach of Fiduciary Duty: OVERRULED

Sufficiency - Code Civ. Proc., § 430.10, subd. (e)

Standard: A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).)  This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  “To survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.”  (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)  For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.  (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)  A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.”  (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  The face of the complaint includes exhibits attached to the complaint.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)  If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.  (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Analysis: “A fiduciary relationship is ‘“‘any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party.  Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent ….’”’” (Wolf v. Sup. Ct. (2003) 107 Cal.App.4th 25, 29 [internal citations omitted].)  The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.  (Knox v. Dean (2012) 205 Cal.App.4th 417, 432-33.)  No fraudulent intent is required.  (See Civ. Code, § 1573 [defining “constructive fraud”].)

It appears—though this is not clear--that Defendants are all volunteer church members are OMC.  Volunteers can be liable to a corporation for torts committed within the scope of their volunteering.  (Corp. Code, § 9247, subd. (a).)  The Complaint at paragraph 17 alleges that all Defendants have “volunteered to serve the interests of OMC.”  Therefore, the Complaint alleges duty.  The Complaint also alleges breach at paragraph 18, and damages with causation at paragraph 19.

Defendants argue that the Complaint fails to allege a breach of a fiduciary duty because “[t]he only person the law imposes a fiduciary duty is CHUNG who is a board member.”  (Demurrer, 6:23-24.)  However, this position is incorrect, as volunteers of a nonprofit corporation can be liable to a third party for torts committed by the volunteer in the scope of their volunteering.  (Corp. Code, § 9247, subd. (a).)  A volunteer is exempt from liability only where (1) the act or omission was within the scope of the director’s or executive officer’s duties, (2) the act or omission was performed in good faith, (3) the act or omission was not reckless, wanton, intentional, or grossly negligent, and (4) damages caused by the act or omission are covered pursuant to a liability insurance policy issued to the corporation, either in the form of a general liability policy or a director’s or officer’s liability policy, or personally to the director or executive officer.  (Corp. Code, § 9247, subds. (a)(1)-(4).)

Defendants’ demurrer to the Complaint’s First cause of action on the grounds of insufficiency of pleading is OVERRULED.

Uncertainty - Code Civ. Proc., § 430.10, subd. (f)

Standard: A demurrer to a pleading lies where the pleading is uncertain.  (Code Civ. Proc. § 430.10, subd. (f).)  Uncertain language includes ambiguous and unintelligible language.  (Ibid.)   “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  As a result, a special demurrer for uncertainty is not intended to reach failure to incorporate sufficient facts in the pleading but is directed only at uncertainty existing in the allegations already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825.)  Where complaint is sufficient to state a cause of action and to apprise defendant of issues he is to meet, it is not properly subject to a special demurrer for uncertainty. (See ibid.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 643 [“[a] special demurrer [for uncertainty] should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet”].)

Analysis: The First cause of action is sufficiently pled as to overcome demurrer based on Section 430.10, subdivision (e) [sufficiency], of the Code of Civil Procedure.  Therefore, the cause of action cannot be said to be uncertain, as it sufficiently apprises Defendants that they are facing a allegations of breach of fiduciary duties. 

Second Cause of Action, Negligence: OVERRULED

Sufficiency - Code Civ. Proc., § 430.10, subd. (e)

The elements of a cause of action for negligence are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.”’”  (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)  “Breach is the failure to meet the standard of care.”  (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.)  “The element of causation requires there to be a connection between the defendant’s breach and the plaintiff’s injury.”  (Coyle, supra, 24 Cal.App.5th at p. 645.)

Here, the Complaint sufficiently alleges negligence at paragraphs 21 to 25 by alleging that all Defendants owed OMC a duty based on being volunteers at OMC; that Defendants breached their duty to OMC by committing certain acts, such as freezing OMC’s bank accounts, filing incorrect statements with the California Secretary of State, and cancelling payroll; that each defendant is liable for the other’s conduct based on conspiratorial liability; and that Defendants’ conduct caused OMC damages.  Accordingly, demurrer to the second cause of action based on sufficiency is OVERRULED.  As a result, Defendants’ demurrer to the Complaint’s second cause of action on the grounds of uncertainty in pleading is OVERRULED.

Third Cause of Action, Fraudulent Concealment: SUSTAINED WITH LEAVE TO AMEND

Sufficiency - Code Civ. Proc., § 430.10, subd. (e)

“[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.”  (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4^th 230, 248.)  ¿“In California, fraud must be pled specifically; general and conclusory allegations do not suffice.¿ [Citations.]¿ Thus the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.¿ [Citation.]¿ This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.¿ [Citation.]”¿ (Small v. Fritz Cos., Inc. (2003) 30 Cal.4th 167, 184.) 

Here, Defendants’ demurrer to the Third cause of action is SUSTAINED WITH LEAVE TO AMEND because the Complaint does not state which of the Defendants concealed which of the eighth concealed facts stated at paragraph 29 of the Complaint.  Such lack of pleading fails to satisfy the precedent established in Small v. Fritz Cos., Inc.  The Court does not consider whether demurrer based on uncertainty is proper.

Fourth and Fifth Causes of Action, Intentional and Negligent Interference with Prospective Economic Advantage: SUSTAINED WITH LEAVE TO AMEND

Sufficiency - Code Civ. Proc., § 430.10, subd. (e)

Intentional and negligent interference with prospective economic advantage both, in part, require showing the existence between the plaintiff and some third party of an economic relationship that contains the probability of future economic benefit to the plaintiff and the defendant’s knowledge of that relationship.  (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512 [intentional interference]; Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 1005 [negligent interference].)

Here, the Complaint fails to allege a third party and an economic relationship with a probability of future economic benefit to OMC.  At paragraphs 39 and 50, the Complaint generally alleges that Defendants intentionally and negligently interfered with OMC’s prospective economic advantage by (1) freezing OMC’s bank accounts, (2) interfering with OMC obtaining a PPP loan, and (3) cancelling OMC’s pastoral payroll without authorization.  The Complaint alleges in the same paragraphs that this conduct by the Defendants interfered with “Plaintiff’s entitlement to tithes.”  From these allegations, the Court can only conclude that the third party in these claims are OMC’s parishioners who give tithes to the Church or other sources of donations to the OMC.  Further, from these allegations, the Court can only conclude that the Complaint does not sufficiently plead how the alleged wrongful conduct at paragraphs 39 and 50 caused the reduction of tithes collected by Plaintiff OMC.

Accordingly, Defendants’ demurrer to the Fourth and Fifth causes of action are SUSTAINED WITH LEAVE TO AMEND.  The Court does not consider whether these claims were uncertainty pled as to sustain demurrer.

Sixth Cause of Action, Unfair Competition under California Business & Professions Code: SUSTAINED WITHOUT LEAVE TO AMEND

Sufficiency - Code Civ. Proc., § 430.10, subd. (e)

Unfair competition is any unlawful, unfair, or fraudulent business practice or act and unfair, deceptive, untrue, or misleading advertising.¿ (Bus. & Prof. Code, § 17200.)¿ “An unlawful business practice or act within the meaning of the [Unfair Competition Law (“UCL”)] is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.”¿ (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 351 [internal quotations omitted].)¿ A plaintiff needs to identify statutory, regulatory, or decisional law that the defendant has violated.  (Id. at 352.)  Unfair competition “borrows” violations of other laws and authorizes a separate action pursuant to unfair competition.¿ (See Farmers Ins. Exch. V. Superior Court (1992) 2 Cal.4th 377, 383.)¿ Unfair conduct in unfair competition actions must be violative of public policy and “tethered to specific constitutional, statutory, or regulatory provisions.”  (Scripps Clinic v. Sup. Ct. (2003) 108 Cal.App.4th 917, 940.)

Here, paragraph 56 reincorporates all conduct by defendants and states that “[a]s a result of such unlawful, unfair or fraudulent business acts of [sic] practices, Plaintiff has incurred actual damages, including, without limitation, the loss of portions of the tithe.”  Such a cause of action is not, however, tied to a specific constitutional, statutory, or regulatory provision.  Rather, Plaintiff moors its cause of action on common law torts.  Further, as pled in the Complaint, it is unclear how breaches of fiduciary duties from volunteer conduct at a religious nonprofit could result in unfair business practices against the nonprofit.  As a result, there is no proper basis for the sixth cause of action.

Accordingly, Defendants’ demurrer to the Complaint’s Sixth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.  The Court therefore does not determine whether uncertainty is a proper basis on which to demur to this cause of action.

Seventh Cause of Action, Accounting: OVERRULED

Sufficiency - Code Civ. Proc., § 430.10, subd. (e)

An action for an accounting has two elements: (1) “that a relationship exists between the plaintiff and defendant that requires an accounting” and (2) “that some balance is due the plaintiff that can only be ascertained by an accounting.”  (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.)  “An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation” such that a complaint seeking an accounting cannot state the precise amount of damages sought.  (See ibid.)

Here, the Complaint sufficiently alleges a claim for accounting.  Paragraphs 59 to 62 allege that Defendants were in a relationship with Plaintiff OMC wherein Defendants were volunteers at the OMC who engaged in defalcations of Church property.  OMC requests an accounting of the property it believes it has lost as a result of Defendants’ conduct, the “exact amount of money” of which “is unknown to Plaintiff and cannot be ascertained.”  (Complaint, ¶ 60.)  Such allegations properly constitute an accounting claim.

Accordingly, Defendants’ demurrer to the Complaint Seventh cause of action is OVERRULED.

Uncertainty - Code Civ. Proc., § 430.10, subd. (f)

As Defendants’ demurrer to the Complaint Seventh cause of action based on sufficiency was overruled, Defendants’ demurrer to the same claim based on uncertainty grounds is OVERRULED.

Eighth Cause of Action, Declaratory Relief: OVERRULED

Sufficiency - Code Civ. Proc., § 430.10, subd. (e)

Any party claiming rights under a contract or under a written instrument other than a will or trust, or with respect to property, may bring an action for a declaration of his or her rights or duties with respect to the other.  (Code Civ. Proc., § 1060.)  However, the fundamental basis of declaratory relief is a present and actual controversy between the parties over a proper subject.  (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.)

Here, “Plaintiff … seeks an Order of this Court declaring that effective upon the issuance thereof that the elections held to date are valid, that the Statements of Information filed on Plaintiff’s behalf by its lawful CEO are valid and effective and all those to the contrary are not, that OMC is entitled to the immediate production and delivery of all of its own corporate and financial books and records, and that the Session as currently composed is lawful, appropriate and consistent with the intent of the By Laws.”  (Demurrer, 13:1-5.)  The controversy between the parties concerns “the application of the written By Laws of OMC, the right to make filings on its behalf, and the propriety of elections held by OMC during the interim period of time during which these Defendants have been trying to destroy OMC and/or steal its assets as a result of Chung being one of only two members of the Session.”  (Demurrer, 12:5-9.)  Based on these allegations, the Court finds that the eighth causes of action is sufficiently pled.  While the Court notes that Department 58 has previously ruled that Senior Pastor Kim’s election of Kwang Chan Kim and Joongkoo

Cho as Session members was invalid, (see 20STCV42005 July 21, 2021 Minute Order, p. 4), the Court finds that a controversy as to who is lawfully entitled under the OMC Bylaws to act on behalf of the Church. 

Accordingly, the demurrer to the Eighth cause of action based on sufficiency is OVERRULED.

Uncertainty - Code Civ. Proc., § 430.10, subd. (f)

As the demurrer to the eighth cause of action based on sufficiency was overruled, the demurrer to the same claim based on uncertainty in correspondingly OVERRULED as a cause of action that is sufficiently pled cannot be uncertain.

Ninth Cause of Action, Injunctive Relief: SUSTAINED WITHOUT LEAVE TO AMEND

Sufficiency - Code Civ. Proc., § 430.10, subd. (e)

A petition for injunctive relief may request either a permanent or preliminary injunction.  Regardless of the form, “an injunction is not itself a cause of action; rather, a cause of action must exist on which injunctive relief may be granted.”  (Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 356.)  Defendants demur to this cause of action on the basis that injunctive relief is relief for a claim rather than a claim in and of itself.  (Demurrer, 9:17-24.)  Defendants’ position has merit.  (See Allen v. Sacramento (2015) 234 Cal.App.4th 41, 48, 65 [trial court did not err in sustaining demurrer to cause of action for injunction brought by homeless persons challenging constitutionality of city's camping ordinance].)  Accordingly, Defendants’ demurrer to the Complaints’ ninth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.  The Court therefore does not analyze uncertainty grounds for demurring to this claim.

Conclusion

Defendants Jang Geun Chung, Sung Ki Lee, Yeon Ho Lee, and Sarah Pak’s Demurrer to Plaintiff The Oriental Mission Church’s Complaint based on subdivisions (a) through (c) of Code of Civil Procedure section 430.10 is OVERRULED.

Defendants Jang Geun Chung, Sung Ki Lee, Yeon Ho Lee, and Sarah Pak’s Demurrer to the Complaint’s First, Second, Seventh and Chung’s Demurrer to the Eighth causes of is OVERRULED as these claims are sufficiently and not uncertainly pled.

Defendants Jang Geun Chung, Sung Ki Lee, Yeon Ho Lee, and Sarah Pak’s Demurrer to the Complaint’s Third, Fourth and Fifth causes of action is SUSTAINED WITH LEAVE TO AMEND because the allegations pled therein do not sufficiently support the stated claims.

Defendants Jang Geun Chung, Sung Ki Lee, Yeon Ho Lee, and Sarah Pak’s Demurrer to the Complaint’s Sixth and Chungs’ Demurrer to the Ninth causes of action is SUSTAINED WITHOUT LEAVE TO AMEND because both claims are defective as a matter of law and therefore are incapable of curing, for which reason leave to amend is not merited.