Case Number: BC708515 Hearing Date: June 18, 2019 Dept: 24

Defendants David S. Kim, David S. Kim & Associates and Moses Moon Park’s motion for reconsideration is DENIED.

On June 1, 2018, Plaintiff Eden Hill Mission (“Eden Hill”) and Jeff Kern (“Kern”) (collectively, “Plaintiffs”) filed a complaint against Defendants David S. Kim (“Kim”), David S. Kim & Associates (the “Firm”), and Moses Moon Park (“Park”). The First Amended Complaint (“FAC”) arises out of a series of litigation over the control of Eden Hill, a non-profit religious organization. On December 5, 2018, the Court sustained Defendants’ demurrer to the FAC as to the first and second causes of action with leave to amend and overruled it as to the third. On December 21, 2018, Plaintiffs filed a Second Amended Complaint (“SAC”), alleging 1) legal malpractice by Eden Hill against Kim and the Firm; 2) breach of fiduciary duty by Eden Hill against Kim and the Firm; and 3) malicious prosecution by Kern against Defendants.

The SAC alleges that Park and Plaintiffs have a long history of litigation. Eden Hill owns a wilderness property in San Bernardino National Forest, where it hosts religious ceremonies. In the early 2000s, Eden Hill underwent building projects, funded in part by Kern. Eden Hill hired Park as a part of these projects, and allowed him to live on the property. Kern suspected Park of embezzling funds, and evicted him. Park subsequently brought a case against Kern in 2004, which settled, but this only commenced the series of litigation.

In 2012, Defendants filed a lawsuit styled as Eden Hill Mission v. Kern, et al. San Bernardino County Superior Court (“SBCSC”) Case No. CIV DF1206578 (“the Underlying Suit”), purportedly brought by Eden Hill through the unanimous vote of Eden Hill’s newly elected board of directors. Kim and the Firm represented “Eden Hill Mission” in the Underlying Suit. In this suit, Defendants, on behalf of Eden Hill, alleged that Kern was liable for breaches of duties owed to Eden Hill, and sued for declaratory relief to find that Eden Hill was controlled by certain individuals, not Kern, and that certain board elections in 2011-2012 were valid.

In 2015, Eden Hill filed a separate lawsuit against Park, styled Eden Hill v. Park, SBCSC Case No. CIV DS1511669 (the “Declaratory Relief Action”). This suit requested declaratory relief that Kern was the president and Director of Eden Hill, and Park was not an agent or officer of Eden Hill, and that the purported board elections in 2011-2012 were invalid. Default was taken in the Declaratory Relief Action. Kim and the Firm appeared as counsel to Park in the declaratory relief action, despite claiming to represent Eden Hill in the underlying action.

In 2017, the underlying action proceeded to trial. The court held in its final judgment for Kern, finding that the by-laws offered into evidence by Park were forgeries and that the supposed officers and directors under his control were not validly elected. Post-trial, Eden Hill requested its client files from Kim and the Firm, but Kim and the Firm denied representing Eden Hill.

On January 22, 2019, Defendants filed a demurrer to the SAC’s first and second causes of action, arguing that Eden Hill lacked standing to assert these causes against Kim and the Firm because there is no duty alleged. On April 4, 2019, after full briefing on the matter and oral arguments, the Court took the matter under submission. Later that day, the Court issued a written order overruling the demurrer, and ordered Defendants to answer.

On April 16, 2019, Defendants filed a motion for reconsideration “and/or clarification” of the court’s order. On May 30, 2019, Plaintiffs filed an opposition. On June 11, 2019, Defendants filed a reply.

Legal Standard

A non-prevailing party may make a motion to reconsider and enter a different order under the following conditions: (1) brought before the same judge that made the order sought to be reconsidered; (2) made within 10 days after service upon the party of the notice of entry of the order (extended under CCP § 1013 for type of service); (3) based on new or different facts, circumstances or law than those before the court at the time of the original ruling; (4) supported by a declaration stating the previous order, by which judge it was made, and the new or different facts, circumstances or law claimed to exist; and (5) the motion must be made and decided before entry of judgment. (CCP §1008.) “To be entitled to reconsideration, a party should show that (1) evidence of new or different facts exist, and (2) the party has a satisfactory explanation for failing to produce such evidence at an earlier time.” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.)

Discussion

Defendants’ motion presents no new or different facts, circumstances, or law. (CCP § 1008.) Instead, the motion re-asserts the same legal and factual position held at the underlying demurrer, with no citations to new law or circumstances.

Essentially, Defendants request that the Court reconsider its ruling claiming they do not believe the Court considered its own ruling, or the implications of the ruling. This, of course, is impossible. The Court wrote the tentative ruling.[1] Naturally, the Court considered its own tentative ruling, as well as the concerns Defendants expressed in their demurrer papers, and in this motion, regarding attorney client privilege and other discovery issues. The Court also heard oral arguments and took the matter under submission. Based on those arguments, the Court overruled the demurrer. The Court determined that the SAC states ultimate facts of representation, and thus duty, which is enough for pleading purposes. If Defendants contend that they did not represent Eden Hill, they may take that factual position. The Court did not rule that Kim and the Firm represented Eden Hill, only that the SAC stated so. The Court simply determined that the pleadings are not the appropriate juncture to make such a ruling one way or the other. Whether Kim and the Firm represented Eden Hill will depend on how the evidence and the facts develop, and whether that evidence support Defendants’ version of the events.

Defendants also request clarification of its ruling. Defendants cite no authority for such a request, under CCP section 1008 or otherwise.

Accordingly, the motion is DENIED. The Court is not inclined to grant sanctions at this time, despite the legally unfounded nature of the motion.

Moving party is ordered to give notice.

[1] Notably, the Court is not required to issue tentative rulings. (CRC Rule 3.1308(e).) This Court does issue such rulings as a matter of courtesy to the parties, and to focus the arguments of counsel at the hearing. Defendants cite no authority that the Court is required to issue written rulings on demurrer, or that the Court is required to follow its own tentative rulings after hearing oral arguments.