Judge: Maurice A. Leiter, Case: 21STCV31304, Date: 2023-01-03 Tentative Ruling

Case Number: 21STCV31304    Hearing Date: January 3, 2023    Dept: 54

Hearing Date: January 3, 2023

Department 54, Judge Maurice A. Leiter

Motion to Substitute Attorney and/or Dismiss Action and Impose Sanctions

Moving Party: Defendants Jae Yeun Lee, Dae Kun Lee, He Keuk Lee, Sun Hwan Kim and John S. Suh

Responding Party: Plaintiff Howard Kim and Los Angeles Korean 1st Presbyterian Church Corporation

T/R:    THE MOTION IS DENIED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, opposition, and reply.

Defendants move for an order substituting Defendants’ counsel, David S. Kim, as counsel for Plaintiff Los Angeles Korean 1st Presbyterian Church Corporation, dismissing the action, and imposing monetary sanctions on Plaintiffs’ counsel, Mary Lee. 

This is a dispute between two factions of the Los Angeles Korean 1st Presbyterian Church concerning who may run the Church. On December 14, 2021, Judge Chalfant, in Department 85, ruled on Defendants’ petition to determine the validity of the Church’s election of directors. Judge Chalfant found that Plaintiff Kim had not been properly elected as Senior Pastor of the Church and that the pre-election Session members (here Defendant Lee) were the proper Session members.  Judge Chalfant subsequently appointed a receiver to oversee a new election. After the election, the receiver was relieved.

Defendants assert that four church members ran to be Session members, but none received sufficient votes to be elected. Defendants represent that Defendant Lee is the only active Session member. Defendant Lee declares that he may make decisions on behalf of the church as the sole Session member. Lee also declares that on September 4, 2022, Lee made resolutions to dismiss this litigation on behalf of the Church and that Plaintiffs’ counsel, insofar as she represents the Church, be replaced by Defendants’ counsel, David S. Kim.

Defendants state that Plaintiffs’ counsel refuses to discontinue litigation, necessitating this motion. In opposition, Plaintiffs assert Defendants are in default and cannot file this motion. Plaintiffs also argue that Plaintiff Kim has standing to bring a derivative action on behalf of the Church under the Corporations Code. Plaintiffs note that Judge Chalfant suggested that the Church be named in this action (and Defendants consolidated action against Plaintiff) only as a nominal Defendant, but neither party made this change.

This Court agrees that this action would be better litigated as a derivative action. But Defendants have failed to establish that they are entitled to the requested relief or that the Court has the authority to grant the requested relief. Defendants are in default and may not seek this relief while in default. Nor do Defendants cite statutory or common law authority showing a defaulted Defendant can move for a substitution of counsel for the Plaintiff. Defendants also do not provide the Court with the actual corporate bylaws or resolutions made by Defendant Lee.

The Court suggests the parties meet and confer regarding amendment to the pleadings to establish a derivative action.

Defendants request sanctions against Plaintiffs’ counsel for refusing to remove herself as counsel and for filing the motion to waive Defendants’ answer, which was heard and denied by the Court on October 25, 2022. Defendants assert they complied with the Code of Civil Procedure’s safe harbor provision by notifying Plaintiffs’ counsel they would file a motion for sanctions if counsel did not withdraw the motion. CCP §§ 128.5(f)(1)(B), 128.7(c)(1) states that notice of motion as provided in CCP § 1010 must be served 21 days before it is served with the Court to allow the opposing party to withdraw the offending document. Sending an email stating Defendants would file a motion for sanctions is not a “notice of motion” under CCP § 1010.

Defendants’ motion is DENIED.