Downey Acute Care Management Group vs. Bill Hoon Kim

Motion for Leave to Intervene

Cal. Super. - 4th Dist.November 1, 2016

© 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O Todd A. Green (Bar No. 174485) tgreen@GreenLLP.com GREEN LLP Cannery Village 419 31* Street, Suite A Newport Beach, California 92663 Telephone: (949) 288.6565 Facsimile: (949) 288.6565 Attorneys for Intervenor Richard Guess, M.D., Inc. SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUSTICE CENTER DOWNEY ACUTE CARE MEDICAL GROUP, a California partnership Plaintiff, V. BILL HOON KIM,an individual; RICHARD MINOT, an individual; MINOT ACCOUNTANCY CORPORATION,a California corporation; and DOES 1 — 100, inclusive, Defendants. RICHARD GUESS, M.D, INC., Intervenor. Case No. 30-2016-00884203-CU-MC-CIC Assigned for all purposes to: Hon. Theodore Howard Dept. C18 NOTICE OF MOTION AND MOTION FOR LEAVE TO INTERVENE IN ACTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF TODD A. GREEN IN SUPPORT THEREOF [Cal. Code of Civ. Proc. § 387] Hearing Date: December 8, 2016 Time: 1:30 p.m. Dept.: C18 Res No. 72477298 Complaint Filed: November 1, 2016 Trial Date: None Set MOTION FOR LEAVE TO INTERVENE © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICEthat on December 8, 2016 at 1:30 p.m., or as soon thereafter as the matter may be heard in Department C18 of the above-entitled court, located at 700 Civic Center Drive West, Santa Ana, California 92701, proposed intervenor RICHARD GUESS, MD, INC. (“Guess”) will and hereby does move the Court for an order permitting Guess to intervene in this action for the limited purpose of opposing a motion by plaintiff, DOWNEY ACUTE CARE MEDICAL GROUP (“DACMG”),to stay an arbitration to which Guess is a party. This motion is based on the ground that Guess has an interest in the outcome of DACMG’s motion to stay the arbitration. This motion is based on Code of Civil Procedure section 387, the attached complaint in intervention, this Notice of Motion, the attached Memorandum of Points and Authorities, the declaration of Todd A. Green attached hereto, the pleadings and papers on file herein and on such other written and oral argument as may be presented at the hearing on this matter. Dated: November _g, 2016 GREEN LLP By: Jedd (Frean Todd A. Green dq Attorneys for Intervenor Richard Guess, M.D., Inc. 2 MOTION FOR LEAVE TO INTERVENE © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Guess seeks leave to intervene in this action for the limited purpose of opposing a motion by DACMG to stay an arbitration that is pending between Guess and DACMG. The hearing in that arbitration was set to commence less than twenty-four hours after DACMG filed this lawsuit and sought a stay by ex parte application. II. STATEMENT OF FACTS DACMG and Guess are parties to an arbitration presided over by the American Arbitration Association. Guessis the Claimant and Cross-Respondent. DACMG is the Respondent and Cross- Claimant. There are no other parties to the Arbitration. The hearing in the Arbitration was set to begin on November 2, 2016. On November 1, 2016, DACMGfiled this lawsuit. Guessis not a party. On that same day — one day before the Arbitration hearing was scheduled to commence — DACMG appeared ex parte in this action and requested a stay of the Arbitration during the pendency of this lawsuit. Because Guess was not a party to the lawsuit, Guess was not present at the ex parte. At the ex parte, the Court, Judge Sheila Fell presiding, granted a temporary stay of the arbitration and set DACMG’s motion to stay for hearing on December 8, 2016. The Court stated that the ex parte papers would be deemed to be the moving papers. See Minute Order dated November 1, 2016. III. DISCUSSION A. Legal Standard Upon timely application, any person “who has an interest in the matter in litigation, or in the success of either of the parties . . . may intervene in the action or proceeding.” Cal. Civ. Proc. Code § 387, subd. (a). The statute should be liberally construed in favor of intervention. See Lindelli v. Town ofSan Anselmo, 139 Cal.App.4th 1499 (2006). 3 MOTION FOR LEAVE TO INTERVENE © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O B. The Court Should Grant Guess Leave To Intervene for the Limited Purpose of Opposing DACMG’s Motion To Stay the Arbitration Clearly, Guess has an interest in the motion by DACMGto stay the arbitration to which it is the only other party. This is a sufficient interest to grant Guess’ motion for leave to intervene for the limited purpose of opposing DACMG’s motion. IV. CONCLUSION For all of the foregoing reasons, Guess respectfully requests that the Court grantthis motion for leave to intervene in this action for the limited purpose of opposing DACMG’s motion to stay the Arbitration. Dated: November 5, 2016 GREEN LLP By: Todd reer Todd A. Green (/ Attorneys for Intervenor Richard Guess, M.D., Inc. 4 MOTION FOR LEAVE TO INTERVENE © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O DECLARATION OF TODD A. GREEN I, Todd A. Green, declare as follows: 1. Tam the attorney of record for Richard Guess, MD, Inc. (“Guess”). The matters set forth herein are true and correct of my own personal knowledge, and if called upon as a witness, I could and would testify competently thereto. 2. DACMG and Guess are parties to an arbitration presided over by the American Arbitration Association and designated as Case No. 01-15-003-1764 (the “Arbitration”). Guess is the Claimant and Cross-Respondent. DACMG is the Respondent and Cross-Claimant. There are no other parties to the Arbitration. 3. The hearing in the Arbitration was set to begin on November 2, 2016. 4. On November 1, 2016, DACMGfiled this lawsuit. Guessis not a party. On that same day — one day before the Arbitration hearing was scheduled to commence — DACMG appeared ex parte in this action and requested a stay of the Arbitration during the pendency of this lawsuit. Because Guess was not a party to the lawsuit, Guess was not present at the ex parte. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. iE __Todd A. Green Dated: November _5, 2016 5 MOTION FOR LEAVE TO INTERVENE © 0 J O N L n B A W N N N N N N N N N N E m e m e m e m e m e m p m e d c o N N O N L n BR A W N Y D = O O 0 0 N N N R E W I N D = O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the county of Orange, State of California. Iam over the age of 18 and not a party to the within action; my business address is 419 31% Street, Suite A, Newport Beach, California 92663. On November 5, 2016 I served the document (s) described as NOTICE OF MOTION AND MOTION FOR LEAVE TO INTERVENE IN ACTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF TODD A. GREEN IN SUPPORT THEREOF in this action in the following manner: David C. Voss, Jr. dave@vsbllp.com Voss, Silverman & Braybrooke LLP 4640 Admiralty Way Suite 800 Marina Del Rey, CA 90292 [] (BY MAIL) I enclosed the documents in a sealed envelope addressed to the persons listed above and deposited the envelope with the U.S. Postal Service with postage thereon fully prepaid. The envelope was placed in the mail at Newport Beach, CA. [] (BY FAX) I transmitted, pursuant to Rules 2001 et seq., the above-described document by facsimile machine (which complied with Rule 2003 (3), to the above- listed fax number (s). The transmission originated from facsimile phone number 949.288.6565 and wasreported as complete and without error. The facsimile machine properly issued a transmission report, a copy of which is attached hereto. [ ] (BY OVERNIGHT DELIVERY) I caused said envelope (s) to be delivered overnight via an overnight delivery service in lieu of delivery by mail to the addressee (8). [ X] (BY ELECTRONIC SERVICE) I caused the documents to be sent to the persons at the electronic notification addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. [ ] (PERSONAL) I caused DDS Attorney Service to personally serve the addressee(s). Executed on November 5, 2016 at Newport Beach, California. [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Todd Green 6 MOTION FOR LEAVE TO INTERVENE