Judge: Elaine Lu, Case: 23STCV14431, Date: 2024-02-22 Tentative Ruling

Case Number: 23STCV14431    Hearing Date: February 22, 2024    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

            On June 21, 2023, Plaintiff the Council of Korean Churches in Southern California (“Plaintiff” or “KCSC”) filed the instant action against Defendants Yong Jun Kim (“YJK”), Yong Bong Choe (erroneously sued as Yong Bong Choi) (“Choe”), and Paul Jung (“Jung”) (collectively “Defendants”).  The complaint asserts three causes of action for (1) Permanent Injunction, (2) Declaratory Relief [CCP § 1060], and (3) Ultra Vires [Corp. Code § 9141(a)].

            On August 14, 2023, Defendants filed a demurrer.  No opposition or reply has been filed.

Allegations of the Operative Complaint

            The complaint alleges that:

            Plaintiff KCSC is a religious organization incorporated in California.  (Complaint ¶¶ 1-2, Exh. A [Articles of Incorporation].) 

            “Defendants conducted general assembly on November 28, 2022, by advertising on November 14, 2022, through the newspaper (in violation of Bylaw Article 12- Section 4) and made hires to the directors and officers and changed bylaws, in violation of KCSC Bylaws. To become the Session's Directors, candidate must go through mutual decision by Chancellor President and Vice President as required by Article 19 - Sections 7 and 8. Also, to create the operation directors, candidate must go through mutual decision by Chancellor President and Vice President as required by Article 32. Defendants had a duty to notify and receive approval from both Chancellor President and Vice President according to the bylaws. Defendants breached their duty by circumventing the Session's decision making and hiring protocol as outlined in Bylaws. Defendants inappropriately and exclusively hired and made decisions for directors in violation of Bylaws.”  (Id. ¶ 4.)  “Defendants also filed the statement of information with new officers and directors of KCSC to the California Secretary of State.”  (Id. ¶ 5.)

            “Defendants also conducted inauguration of KCSC’s new president and vice-president, even with general assembly, in violation of KCSC.”  (Id. ¶ 6.)  “Defendants alleged that their new KCSC is the correct KCSC, instead of current KCSC.”  (Id. ¶ 7.) 

            “The plaintiff is asking that the Court render a judgment of permanent injunction (as well as a temporary restraining order and preliminary injunction) whereby such defendants and whoever was wrongfully appointed and employed by said defendant not interfere with the operations of the KCSC, that the wrongfully appointed members/directors stop representing the KCSC and stop using the KCSC name, and for Defendants to cease from hiring, appointing, and calling any staff members without the proper notification and approval from the KCSC council according to the Bylaws.”  (Id. ¶ 8.)

            “Defendant YONG JUN KIM, YONG BONG CHOI, PAUL JUNG, who were wrongfully appointed as directors or officers, who violated the bylaws, without authorization by the KCSC refuse to halt their unauthorized activities and refuse to leave their illusory positions from KCSC. The Defendants altogether have been causing the KCSC to suffer irreparable harm committing wrongful and unlawful acts, such as establishing, appointing and hiring of staff personnel, directors, officers without proper authorization of the Chancellor VP and Session in violation of the Bylaws, and misrepresenting their identities as KCSC directors as pointed out in emergency KCSC meeting (Exhibit B) for advantage in the internal conflict they caused in the KCSC.”  (Id. ¶ 9.)

Legal Standard

A demurrer 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.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

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

Meet and Confer Requirement

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (CCP § 430.41(a)(2).)  The demurring party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading.  (Id.¿at (a).)

Here, there is no indication that Defendants even attempted to meet and confer with Plaintiff’s counsel before filing the instant demurrer, as required.  Failure to meet and confer is not a ground for denial, (CCP § 430.41(a)(4)).  On this occasion, the Court will address the merits of the demurrer notwithstanding Defendants’ failure to meet and confer.  However, any future failure to meet and a confer will result in the respective motion being taken off calendar. 

Discussion

            Defendants assert that the entire action is barred by res judicata and that the complaint fails to state a claim against each defendant and is uncertain.

Defendants Fail to Show That the Complaint is Barred by Res Judicata

“‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) Res Judicata has been used to refer to both claim and issue preclusion. (Ibid., Fn. 7.) The doctrine has two aspects: it applies to both a previously litigated cause of action, referred to as claim preclusion, and to an issue necessarily decided in a prior action, referred to as issue preclusion. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828; Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 604.)

This distinction is essential to understanding the analysis below, as courts have oft-noted the “seemingly ineradicable confusion over the distinctions between ‘res judicata’ (claim preclusion) and ‘collateral estoppel’ (issue preclusion).” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 541, Fn. 21.) 

Issue preclusion applies only to issues that were actually litigated in the earlier matter; whereas claim preclusion extends to all legal theories, proofs, and demands for relief that might have been presented in the first matter, provided both suits assert the same cause of action.  (Ibid. citing Landeros v. Pankey (1995) 39 Cal.App.4th 1167, 1171; Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 148; Mycogen Corp. v. Monsanto Corp. (2002) 28 Cal.4th 888, 897; Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1687.) “Res judicata [claim preclusion] bars the relitigation not only of claims that were conclusively determined in the first action, but also matter that was within the scope of the action, related to the subject matter, and relevant to the issues so that it could have been raised” and includes ‘matters which were raised or could have been raised, on matters litigated or litigable.’” (Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1674-1675; accord Mark v. Spencer (2008) 166 Cal.App.4th 219, 229 [bars claims that parties had a fair opportunity to litigate].)  Claim preclusion applies as a bar to splitting a cause of action for partial, later litigation, or relitigation of the same cause of action based upon on another legal theory or associated with different relief, that could have been sought in the prior action. (Noble v. Draper (2008) 160 Cal.App.4th 1, 10; Hamilton v. Asbestos Corp., Ltd.  (2000) 22 Cal.4th 1127, 1146.)  Its purpose is “to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation.” (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 829.)

“‘The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.’ [Citation.]” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.)

Here, Defendants claim that this case is related to a prior case – The Council of Korean Churches Corporation v. Yong Jun Kim, et al., LASC Case No. 21STCV44039 – and that this prior related case serves as res judicata to the instant action.  However, Defendants have not properly raised this issue. 

First, if Defendants contend that the instant action is related to a prior action, they are required to file a notice of related cases in both actions so that the Court can determine whether the actions are related.  (Cal. Rules of Court, Rule 3.300(b), [“Whenever a party in a civil action knows or learns that the action or proceeding is related to another action or proceeding pending, dismissed, or disposed of by judgment in any state or federal court in California, the party must serve and file a Notice of Related Case.”].)  Merely claiming the actions are related in a motion is insufficient.

Second, Defendants have not requested judicial notice of any documents but have rather attached what appears to be the final judgment in The Council of Korean Churches Corporation v. Yong Jun Kim, et al., LASC Case No. 21STCV44039 and the tentative interlocutory judgment referred to in the final judgment.  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  Attaching evidence to a demurrer is a request to consider extrinsic matters outside the pleadings.  For purposes of ruling on a demurrer, the Court cannot consider extrinsic matters that are not properly judicially noticed.

The Court shall take judicial notice of documents such as Court records if a party properly requests it.  (Evid. Code, §§ 452(d), 453.)  As set forth in the rules of Court, “[a]ny request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).”  (Cal. Rules of Court, Rule 3.1113(l).)  Merely attaching the documents as an exhibit to the demurrer fails to comply with these requirements.  The fact that Defendants are in pro per does not excuse the lack of properly requesting judicial notice or properly requesting that the Court relate the actions.  “[P]ro per litigants are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure.”  (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.)  Rather, in pro per litigants are “entitled to treatment equal to that of a represented party.”  (Ibid.) 

Finally, even overlooking these procedural errors and taking judicial notice of the Final Judgment and Tentative Interlocutory Judgment in The Council of Korean Churches Corporation v. Yong Jun Kim, et al., LASC Case No. 21STCV44039, (See Evid. Code, § 452(d)), the Court cannot conclude – at this juncture – that the instant action is necessarily barred due to res judicata by the prior action.  While there does appear to be some overlap of the same parties – i.e., Plaintiff KCSC and Defendant YJK – the claims in the instant action and prior action are not identical.  As noted in the attached Tentative Interlocutory Judgment, the conduct at issue in the prior action involved hirings in November of 2021 -- not in November of 2022 -- as alleged in the instant action. Thus, claim preclusion does not appear to apply. 

As to issue preclusion, Defendants have neither provided nor requested judicial notice of the underlying pleadings such that the Court can determine whether the claims raised in the instant action involve the same identical issues that were litigated and resolved in the prior action.  Accordingly, though res judicata may potentially bar the instant action, Defendants have not shown – for purposes of a demurrer – that the instant action is completely barred by res judicata.

First Cause of Action: Permanent Injunction

            Defendants assert that the first cause of action fails to allege a claim against Defendants.  The Court agrees as there is no cause of action for a permanent injunction.

            “Injunctive relief is a remedy, not a cause of action.”  (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.)  Thus, “‘[a] permanent injunction is merely a remedy for a proven cause of action. It may not be issued if the underlying cause of action is not established.’ [Citation.]”  (Ibid.)  “To qualify for a permanent injunction, the plaintiff must prove (1) the elements of a cause of action involving the wrongful act sought to be enjoined and (2) the grounds for equitable relief, such as, inadequacy of the remedy at law. [Citation.]”  (Ibid.)

            Here, Plaintiff KCSC fails to identify any cause of action that would warrant injunctive relief as requested.  Rather, KCSC merely asserts a purported cause of action for “Permanent Injunction.”  As there is no cause of action for permanent injunction, the first cause of action fails against Defendants.  Accordingly, Defendants’ demurrer to the first cause of action is SUSTAINED.

Third Cause of Action: Ultra Vires [Corp. Code § 9141(a)]

Defendants assert that the first cause of action fails to allege a claim against Defendants.  The Court agrees.

Corporations Code “Section 9141, subdivision (a) generally provides that an action cannot be brought to limit ‘the activities, purposes, or powers of the corporation or upon the powers of the members, officers, or directors, or the manner of exercise of such powers, contained in or implied by the articles’ unless the plaintiff is one of several designated persons[.]”  (Classis of Central California v. Miraloma Community Church (2009) 177 Cal.App.4th 750, 768.)  Section 9141 subdivision (a) gives standing to bring claims against officers/directors of a nonprofit religious corporation if “(1) by the authorized number of members (Section 5036), by any person authorized by the articles or bylaws to bring an action, or by the state to enjoin the doing or continuation of unauthorized activities by the corporation or its officers, or both, in cases where third parties have not acquired rights thereby, or (2) by the authorized number of members (Section 5036), by any person authorized by the articles or bylaws to bring an action, by any member suing in a representative suit, or by the corporation, against the officers or directors of the corporation for violation of their authority.”  (Corp. Code, § 9141(a), [Bold and Italics Added].) 

At most, Corporation Code section 9141(a), merely provides Plaintiff KCSC – as the corporation – with standing to sue Defendants for a violation of their authority.  However, Corporation Code section 9141(a) does not itself provide a cause of action.  “A violation of a state statute does not necessarily give rise to a private cause of action. [Citation.] Instead, whether a party has a right to sue depends on whether the Legislature has ‘manifested an intent to create such a private cause of action’ under the statute. [Citations.]”  (Vasquez v. Solo 1 Kustoms, Inc. (2018) 27 Cal.App.5th 84, 90.) 

Here, Corporation Code section 9141(a) does not itself set forth or provide a basis for relief or to bring a claim.  Thus, Corporation Code section 9141(a) cannot serve as a basis for a cause of action.  Therefore, Defendants’ demurrer to the third cause of action is SUSTAINED.

The Entire Complaint is Uncertain and Fails to Sufficiently Allege Causes of Action against Defendants

            Defendants assert that the entire complaint is uncertain.  The Court agrees.

            A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her.  (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Further, a pleading is subject to a demurrer for uncertainty, when it is unintelligible by “attempt[ing] to state numerous causes of action in a very loose and rambling manner without any attempt at separately stating them.”  (Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71, 73.)  However, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Khoury, supra, 14 Cal.App.4th at p.616.)

            Here, the complaint makes various allegations against unspecified defendants without any identification as to who Plaintiff is referring to.  For example, the complaint alleges that “Defendants conducted general assembly on November 28, 2022, by advertising on November 14, 2022, through the newspaper (in violation of Bylaw Article 12- Section 4) and made hires to the directors and officers and changed bylaws, in violation of KCSC Bylaws.”  (Complaint ¶ 4.)  However, the term “Defendants” is not defined in the complaint.  Nor is it clear that the term “Defendants” in the complaint is intended to reference the named Defendants in the instant action as the complaint specifically names the named Defendants.  (See e.g., Complaint ¶ 9, [“Defendant YONG JUN KIM, YONG BONG CHOI, PAUL JUNG, who were wrongfully appointed as directors or officers, who violated the bylaws, without authorization by the KCSC refuse to halt their unauthorized activities and refuse to leave their illusory positions from KCSC.”].)  It is unclear what Plaintiff is alleging.  Did the named Defendants wrongfully appoint themselves somehow?  Or did some unnamed parties appoint Defendants? 

            Further, the complaint is confusing in its choice of terminology.  For example, the complaint alleges that the unspecified defendants acted in violation of Plaintiff.  (Complaint ¶ 6, [“Defendants also conducted inauguration of KCSC's new president and vice-president, even with general assembly, in violation of KCSC.”].)  Plaintiff is an entity, thus actions cannot be “in violation of KCSC.” 

            Finally, the complaint is unclear as to who is bringing the instant action.  The complaint is purportedly on behalf of KCSC, but the complaint appears to concede that Defendants are the legally designated officers and directors of KCSC.  (Complaint ¶ 5, [“Defendants also filed the statement of information with new officers and directors of KCSC to the California Secretary of State.”].)  In fact, Plaintiff claims that there is a dispute over who runs KCSC yet fails to identify who is purporting to be the current KCSC.  (Complaint ¶ 7, [“Defendants alleged that their new KCSC is the correct KCSC, instead of current KCSC.”].)  While KCSC can bring a lawsuit, “a corporation, as an artificial entity created by law, can only act in its affairs through its natural person agents and representatives.”  (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)  Given the clear dispute and that Defendants appear to be the designated natural agents of KCSC, a clear allegation as to who is purporting to bring the action on behalf of KCSC is required.

            Accordingly, Defendants’ demurrer to the entire complaint for uncertainty is SUSTAINED.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p.348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) 

Here, it is unclear whether Plaintiff can successfully amend the complaint.  However, as this is the first time that a complaint has been sustained against Plaintiff’s complaint, the Court finds it is proper to allow Plaintiff an opportunity to cure the defects discussed in this order. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037.)  

CONCLUSIONS AND ORDER

Based on the foregoing, Defendants Yong Jun Kim, Yong Bong Choe (erroneously sued as Yong Bong Choi), and Paul Jung’s demurrer to the complaint is SUSTAINED WITH LEAVE TO AMEND.

Plaintiff is to file and serve an amended complaint within thirty (30) days of notice of this order.

The case management conference is continued to May 8, 2024 at 8:30 am.

Moving Party is to give notice and file proof of service of such.

DATED: February ___, 2024                                                 ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court