Case Number: BC653209
SANTA MONICA KOREAN CHURCH OF CHRIST ET AL VS JAE SUNG KWAK

Filing Date: 03/10/2017
Case Type: Defamation (Slander/Libel)

RELATED TO: BC657598

3/27/2018
Conference-Case Management
OSC Re: Corporate Status
Demurrer to Complaint
Motion To Strike Portions of Complaint

TENTATIVE RULING

The demurrer AS TO SANTA MONICA KORIEAN CHURCH OF CHRIST is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiff has provided no proof of revivor or payment of taxes in response to the OSC.

As to Plaintiff Choi, the demurrer is SUSTAINED WITH 10 DAYS LEAVE TO AMEND as to the 2nd and 3rd Causes of Action. The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 4th cause of action.

The Motion to strike is GRANTED as to the claim for attorney’s fees and the portions of the Complaint related thereto are stricken. As to the claim for punitive damages, that motion is DENIED as punitive damages are adequately pleaded under Civil Code §3294 based upon the claims set forth in paragraphs 24 – 26 of defamation cause of action as set forth in the First Cause of Action in the Complaint.

The matter is set for trial in accordance with the court’s available trial calendar on a date separate from the related case without prejudice to a motion to consolidate. A separate Case Management Conference ORDER is issued setting trial for 3/6/2019 at 9:30 a.m. and other pretrial dates and orders.

Discussion

Relative to the 2nd cause of action for breach of fiduciary duty, Choi’s argument is that Kwak had a fiduciary duty to him because Choi was a senior and founding member/pastor of the Church and CEO of the Church. In terms of the legal relations between the two, this argument implies that Kwak owed a duty to Choi because they were both officers in the same corporation. As distinct from the corporation itself, the court is not cited to any authority and no facts are yet pleaded that would impose a fiduciary duty on a co-officer. As such, the demurrer is sustained with 10 days leave to amend.

Relative to the 3rd cause of action for declaratory relief, the pleading is vague. There does not appear to be any legal controversy between Kwak and Choi, as distinguished from the Church. As such the demurrer is sustained with 10 days leave to amend.

The 4th “cause of action” for preliminary injunction is entirely inappropriate. A preliminary injunction is a provisional remedy, not a cause of action. Ivanoff v. Bank of America, N.A. (2017) 9 Cal. App. 5th 719, 734. Therefore the demurrer to this cause of action is sustained without leave to amend.

The motion to strike the allegations for attorney’s fees is granted as attorney fees are not recoverable in this action under the tort of another doctrine since Plaintiff must allege for such doctrine to apply that he was required to file some separate action as a result of Kwak’s alleged misfeasance. See Sooy v Peter (1990) 220 Cal. App. 3d 1305, 1309-10; Prentice v North American Title Guarantee Corporation (1963) 59 Cal. 2d 618, 620.

As to the motion to strike the punitive damages claims, the motion is denied as the pleadings meet the requirements of Civil Code §3294.Civ. Code § 3294 states, in relevant part, as follows:

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant…

(c) As used in this section, the following definitions shall apply:

(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury…”

“[A] conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ within the meaning of section 3294.” Brousseau v. Jarrett (1977) 73 C.A.3d 864, 872 (citations omitted).

G.D. Searle & Co v. Superior Court (1975) 49 C.A.3d 22, 26-27 states as follows:

“The phrase conscious disregard is sometimes used to describe the highly culpable state of mind which justifies an exemplary award. The majority opinion in Silberg v. California Life Ins. Co., supra, 11 Cal.3d at page 462, declares: “In order to justify an award of exemplary damages, the defendant must be guilty of oppression, fraud or malice. (Civ. Code, § 3294.) He must act with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights.”

Plaintiffs’ defamation allegations meet the requirements for a pleading of malice:

“24. Defendant caused to be published false and unprivileged communications tending directly to injure Pastor Choi in his spiritual and business reputation. Defendant also orally made false representations to Church members. Defendant falsely published, or caused to be published, that Pastor Choi had mishandled and/or misappropriated Church funds for the benefit of himself and to the detriment of the Church. Defendant also falsely published, or caused to be published, that Pastor Choi has taken various actions causing damage to the Church and causing people to leave the Church and that Pastor Choi made false statements to others, including Church members.

25. Defendant made these defamatory statements to many members of Church and also caused to be published defamatory statements in the Sunday Journal, a Korean newspaper widely disseminated to the Korean community in Los Angeles.

26. Defendant’s defamatory statements were designed and intended to diminish

Pastor Choi’s reputation and injure Pastor Choi in his good name and reputation as the founder and Senior Pastor of the Church.” (Complaint ¶¶ 24-26).

These allegations are more than mere negligence as is required to award punitive damages. The alleged intentional and wrongful destruction of another person’s reputation is something more than negligence. It is malice.

It may well be that Plaintiff cannot prove his claims, but that is the basis for an evidentiary motion, not a pleadings motion.

IT IS SO ORDERED:

___________________________
Frederick C. Shaller, Judge