Motion for Summary Judgment and/or Adjudication
Given the above, the Court finds that Defendant is the prevailing party and that the attorney fees sought are reasonable under the circumstances and pursuant to a lodestar analysis.
The Motion for Attorney Fees and Costs is GRANTED in the amount requested. The Court finds that Defendant Antigua Owner’s Association of Monarch Beach is entitled to $5,602.50 in attorney fees plus $120.00 in costs, for a total of $5,722.50.
Moving Party to give notice.
7. 30-2022-01246328 1. Motion for Attorney Fees
Aznavian vs. Castle Plaintiff Camillia Aznavian moves the Court for an Order for Attorneys’ Fees. Mortgage Corporation This motion is DENIED.
A plaintiff who obtains a default judgment by written declaration, as here, may not seek fees by means of a postjudgment motion. Plaintiff is entitled only to those fees included in the default judgment. [Garcia v. Politis (2011) 192 CA4th 1474, 1479.] Here, no attorney’s fees were included in the Default Judgment; and thus, none can be recovered.
Clerk to give notice.
8. 30-2022-01276823 1. Motion for Summary Judgment and/or Adjudication
Bethesda University vs. Plaintiff Bethesda University (“Plaintiff” or “Bethesda”) moves for summary judgment or Kim summary adjudication against Defendants Pan-Ho Kim; Kyung Moon Kim; Young Hoon Lee; Sun Wook Hwang; Seung Hyun Moon; Samuel Minje Cho; Chun Soo Kim; Ji Yeon Kim; Esther Cho; Ho Yun Jun; Yong Woo Choi; Han Yeh Chang; Yong Jun Kim; Yu Chul Chin; Byeong Cho Yang; and Seunghwa Ji (“Defendants”) on the first cause of action for fraudulent deceit, second cause of action for breach of fiduciary duty, and of the fact that Plaintiff is entitled to recover at least $4,310,249.21 in damages for the period June 1, 2022 through May 31, 2023 on the first and second causes of action.
Plaintiff has not sought summary adjudication or summary judgment with regard to the third cause of action for declaratory relief. Thus, complete summary judgment cannot be granted and the motion to the extent it seeks summary judgment is DENIED.
A plaintiff moving for summary adjudication bears the initial burden of proving each element of the cause of action. (Code Civ. Proc., § 437c(p)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id., § 437c(f)(1).)
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Fraudulent Deceit The “elements of a cause of action for fraud are: (1) a misrepresentation, which includes a concealment or nondisclosure; (2) knowledge of the falsity of the misrepresentation i.e., scienter; (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damages.” (Cadlo v. Owens-Illinois, Inc. (2005) 125 Cal.App.4th 513, 519.)
Plaintiff’s motion is supported by the Declaration of Seung Je Cho, its former President. Mr. Cho asserts that during the period of June 1, 2022 through May 31, 2023, Defendants claimed to be Bethesda’s governing board and officers and acted as though they controlled Bethesda’s
governance and finances. (Declaration of Seung Je Cho, ¶¶ 5-6.) Defendants communicated to Bethesda employees and its banks and financial institutes that they were authorized signatories and, based on these representations, Bethesda’s staff and counterparties treated Defendants as having authority to sign checks, direct wire transfers, and approve commercial credit-card charges for Bethesda. (Id. ¶¶ 7-8.)
Mr. Cho’s declaration does not satisfy Plaintiff’s burden as the moving party of showing that all defendants committed fraud. Mr. Cho points to no specific statements or misrepresentations made by any of the defendants or any facts regarding justifiable reliance on any misrepresentations. Further, actual fraud is generally a question of fact. (Civ. Code, § 1574.)
Moreover, Plaintiff claims as its damages all of the actual expenses incurred during the relevant time period which, as Defendants point out, includes legitimate expenses such as payments for utilities. Plaintiff offers no persuasive argument as to why these routine expenses should be included in Plaintiff’s claimed damages resulting from the purported fraud. Mr. Cho asserts that “[m]any of these expenditures would not have been authorized had a legitimate board been in control of Bethesda during this period.” (Cho Decl., ¶ 16.) However, this impliedly concedes that some of the expenditures would have been authorized in the ordinary course of business.
In light of the above, the motion as to the fraud cause of action is DENIED.
Breach of Fiduciary Duty “The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach. [Citation.]” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 646.)
Plaintiff argues that Defendants, as de facto directors and officers, owed Bethesda fiduciary duties of loyalty and care which were breached by Defendants’ use of university resources toward expenditures that are inconsistent with Bethesda’s educational mission and historical practices.
As with the fraud claim, Plaintiff has failed to carry its burden to show that the claimed total of damages were proximately caused by any breach of fiduciary duty by Defendants. Again, the only evidence in support is Mr. Cho’s declaration, which fails to establish that all of the transactions included in the total were improper and would not have been authorized by a legitimate board.
Thus, the motion as to the breach of fiduciary duty cause of action is DENIED.
The motion as to the third issue of the amount of damages Plaintiff is entitled to recover is also DENIED based on Plaintiff’s failure to establish that all damages were proximately caused by any misconduct of Defendants.
Defendants’ evidentiary objections nos. 1-15 are OVERRULED.
Moving party to give notice.