Judge: Michael P. Linfield, Case: 20STCV26293, Date: 2022-09-30 Tentative Ruling

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Case Number: 20STCV26293    Hearing Date: September 30, 2022    Dept: 34

SUBJECT:                 Application and Order for Appearance and Examination

Moving Party:          Cross Complainant Los Immanuel Mission Church

Requested Party:    Kay Jae Won Chun

SUBJECT:                 Application and Order for Appearance and Examination

Moving Party:          Cross Complainant Los Immanuel Mission Church

Requested Party:    Eun Sang Chun

I.           BACKGROUND

On July 13, 2020, Plaintiff LA Legends, LLC filed a complaint against Defendants Los Angeles Immanuel Mission Church, Paul Ho Rye, Jongkil Ryu, Jae Gyoo Jang, and Robin Windom, alleging the following causes of action:

1.           Breach of Promissory Note

2.           Common Count

3.           Account Stated

4.           Conspiracy to Defraud

5.           Conversion by Forgery

6.           Fraud and Deceit (Promise Made Without Intention to Perform)

7.           Fraud and Deceit (Intentional Misrepresentation)

8.           Cancellation of Instrument

9.           Forgery in Violation of Penal Code 470 PC

On August 4, 2020, Cross-Complainants Los Immanuel Mission Church, Jongkil Ryu, Paul Ho Ryu, and Jae Gyoo Jang filed a cross-complaint against Kathy Lee, C&L Development Company, LLC, Young Tackgo aka Young Tockgo, Jane Tackgo aka Jane Tockgo, Eon Escrow, Inc., and Robin Windom to allege the following causes of action:

1.           Fraud (Intentional Misrepresentation)

2.           Concealment

3.           Conversion

4.           Breach of Fiduciary Duty of Undivided Loyalty

5.           Breach of Fiduciary to Exercise Due Care

6.           Breach of Fiduciary Duty to Exercise Due Care

7.           Total Equitable Indemnity

8.           Implied Contractual Indemnity

9.           Contribution

10.       Declaratory Relief

11.       Elder Abuse

On September 29, 2020, pursuant to a request from Cross-Complainants, Cross-Defendant Robin Windom was dismissed without prejudice from the cross-complaint.

On October 21, 2020, Cross-Complainants filed an amendment to the cross-complaint, to replace Cross-Defendant ROE 1 with Jung W. Chun aka Jung Won Chun.

On November 19, 2020, the Court sustained Cross-Defendant C&L Development Company, LLC’s demurrer to the cross-complaint without leave to amend as to the seventh, eighth, ninth, and tenth causes of action and with leave to amend as to the first and third causes of action. The Court also granted Cross-Defendant C&L Development Company, LLC’s motion to strike.

On November 30, 2020, Cross-Complainants filed a first amended cross-complaint (“FACC”) against Cross-Defendants Kathy Lee, Jung W. Chun aka Jung Won Chun, C&L Development, LLC, Young Tackgo aka Young Tockgo, Jane Tackgo aka Jane Tockgo, and Eon Escrow, Inc. to allege the same causes of action.

On August 23, 2021, the Court orders the Complaint filed by LA Legends LLC on July 13, 2020 dismissed without prejudice. (Minute Order, August 23, 2021, p. 1.)

On May 12, 2022, Cross Complainant Los Immanuel Mission Church filed two Applications and Orders for Appearance and Examination. No oppositions were filed.

On June 17, 2022, the Court denied Cross Complainant’s Applications and Orders for Appearance and Examination against Eun Sang Chun and Kay Jae Won Chun.

On June 20, 2022, Cross Complainant Los Immanuel Mission Church filed two Applications and Orders for Appearance and Examination against Eun Sang Chun and Kay Jae Won Chun. No oppositions were filed.

On July 20, 2022, the Court granted Cross-Complainant Los Angeles Immanuel Church’s Applications and Orders for Appearance and Examination of Eun Sang Chun and Kay Jae Won Chun.

On August 15, 2022, Cross Complainant Los Immanuel Mission Church filed two Applications and Orders for Appearance and Examination against Eun Sang Chun and Kay Jae Won Chun. No oppositions were filed.

On August 31, 2022, non-parties Eun Sang Chun and Kay Jae Won Chun failed to appear at the hearing scheduled for August 31, 2022. The Court issued and held bench warrants for each non-party until September 30, 2022 and set bail for each non-party in the amount of $5,000.00 each. The Court continued the Hearing on Application for Order For Appearance and Examination until September 30, 2022.

II.        ANALYSIS

A.          Legal Standard

(a)        “Upon ex parte application by a judgment creditor who has a money judgment and proof by the judgment creditor by affidavit or otherwise to the satisfaction of the proper court that a third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor in an amount exceeding two hundred fifty dollars ($250), the court shall make an order directing the third person to appear before the court, or before a referee appointed by the court, at a time and place specified in the order, to answer concerning such property or debt. The affidavit in support of the judgment creditor's application may be based on the affiant's information and belief.

(b)       Not less than 10 days prior to the date set for examination, a copy of the order shall be:

1)          Served personally to the third person.

2)          Served personally or by mail on the judgment debtor.

(e)        An order made pursuant to subdivision (a) shall contain the following statements in 14-point boldface type if printed or in capital letters if typed:

1)          NOTICE TO PERSON SERVED. If you fail to appear at the time and place specified in this order, you may be subject to arrest and punishment for contempt of court and the court may make an order requiring you to pay the reasonable attorney's fees incurred by the judgment creditor in this proceeding.

2)          NOTICE TO JUDGMENT DEBTOR. The person in whose favor the judgment was entered in this action claims that the person to be examined pursuant to this order has possession or control of property which is yours or owes you a debt. This property or debt is as follows: (Description of property or debt). If you claim that all or any portion of this property or debt is exempt from enforcement of the money judgment, you must file your exemption claim in writing with the court and personally serve a copy on the judgment creditor not later than three days before the date set for the examination. You must appear at the time and place set for this examination to establish your claim of exemption or your exemption may be waived.” (CCP § 708.120(a, b, e).)

B.          Discussion

The registered process server Kimanh Tran attests that on August 20, 2022 at 8:09 PM, she personally served the instant applications and order for appearance and examination on Kay Jae Won Chun and Eun Sang Chun at 1131 Regal Canyon Drive, Walnut, CA 91789. (Proof of Service (Kay Chun), filed August 22, 2022, ¶¶ 2-5, 7, 8; Proof of Service (Eun Chun), filed August 22, 2022, ¶¶ 2-5, 7, 8.)

The Court finds no evidence that notice of its Minute Order of August 31, 2022 was served on either Kay Jae Won Chun or Eun Sang Chun.

III.     CONCLUSION