Byong W Yoo vs. Jean ChongMotion for Summary JudgmentAdjudicationCal. Super. - 4th Dist.August 14, 2017A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 AN Un W N CE RR IT OS , CA LI FO RN IA 9 0 7 0 3 - 9 3 6 4 N o [\ ®] N o N o N o N o N o No — — — — — —_ —_ — —_ J AN Dn ES N Ww N o — oo \ O c o J aN w n ES N Ww N o p— DN oo ATKINSON, ANDELSON, LOYA, RUUD & ROMO A Professional Law Corporation Edward C. Ho EHo@aalrr.com Shawn M. Ogle SOgle @aalrr.com 12800 Center Court Drive South, Suite 300 Cerritos, California 90703-9364 Telephone: (562) 653-3200 Fax: (562) 653-3333 State Bar No. 176144 State Bar No. 266259 ELECTRONICALLY FILED Superior Court of California, County of Orange 01/24/2018 at 03:09:00 FM Clerk of the Superior Court By Wnique Ramirez, Deputy Clerk Attorneys for Defendants and Cross-Complainants JEAN CHONG and KOREY CHONG, SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE—CENTRAL JUSTICE CENTER BYONG W. YOO and HWA YOO, Plaintiffs, v. JEAN CHONG and KOREY CHONG, and DOES 1 through 25, inclusive, Defendants. JEAN CHONG and KOREY CHONG, Cross-Complainants, v. PREMIER FOOD SAFETY CORPORATION, BYONG W. YOO, HWA YOO, DIRK YOO, DONALD YOO and ROES 1 through 20, inclusive, Cross-Defendants. Case No. 30-2017-00937524-CU-CO-CIC Assigned for All Purposes to: Hon. Walter Schwarm Department C-19 NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS- COMPLAINANTS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION Hearing Date: March 13, 2018 Time: 1:30 p.m. Dept: C19 Complete Set of Moving Papers: 1. Notice of Motion and Motion; 2. Memorandum of Points and Authorities; 3. Separate Statement; and 4. Compendium of Evidence (including Ho Decl., J. Chong Decl., and K. Chong Decl.) Complaint Filed: August 14, 2017 Trial Date: March 28, 2018 NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-COMPLAINANTS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 AN Un W N CE RR IT OS , CA LI FO RN IA 9 0 7 0 3 - 9 3 6 4 N o [\ ®] N o N o N o N o No No — — — — — —_ —_ — — J AN Dn ES N Ww N o — oo \ O c o J aN w n ES N Ww N o p— DN oo TO ALL PARTIES AND THEIR COUNSEL OF RECORD, PLEASE TAKE NOTICE THAT on March 13, 2018 at 1:30 p.m., or as soon thereafter as the motion may be heard, in Department C-19 of the above-entitled court located at 700 Civil Center Drive West, Santa Ana California, 92701, defendants and cross-complainants Jean Chong and Korey Chong (collectively “Chongs”) jointly and severally will and hereby do move the Court pursuant to Code of Civil Procedure section 437¢ for summary judgment in favor of the Chongs against the First Amended Complaint (“FAC”) and each causes of action of plaintiffs and cross-complaints Byong and Hwa Yoo (“Yoo0s”), and for costs of suit incurred herein and such other relief as may be just. This motion is made on the grounds set forth in the attached memorandum of points and authorities and separate statement of undisputed material facts, including that: (i) each of the Yoos’ claims is time barred and, in the alternative, the Yoos have not properly alleged facts that any of their claims are timely. (ii) Also in the alternative, the Yoos’ second claim for unjust enrichment fails because: (a) there is no recognized cause of action for unjust enrichment; (b) the Yoos have not alleged that they lack adequate remedies at law; (c) the Yoos do not lack adequate remedies at law; and (d) the Yoos cannot establish the elements of causation or damages (to the extent elements of the claim), that any dividends allocated to the Chongs were unjust, or that it would be inequitable for the Chongs to retain such dividends. (iii) Also in the alternative, the Yoos’ third claim for conversion fails because: (a) the Yoos cannot establish the elements of causation or damages (b) the Yoos cannot establish the element of lack of consent; and (c) the claim sounds in fraud but fraud is not pleaded with the required specificity. (iv) Also in the alternative, the Yoos’ fourth claim for constructive fraud fails because: (a) the Yoos cannot establish the elements of causation or damages; (b) the Yoos cannot establish the elements of non-disclosure or misrepresentation; and (c) the claim sounds in fraud but fraud is not pleaded with the required specificity. (v) Also in the alternative, the Yoos’ fifth claim for financial elder abuse fails because: (a) the Yoos cannot establish the elements of causation or damages; (b) the Yoos cannot establish the elements of wrongful conduct; and (c) the claim sounds in fraud but fraud is not pleaded with the required specificity. (vi) Also in the alternative, the Yoos’ sixth claim for cancellation of instruments fails because: it is non justiciable and the claim sounds in fraud, but fraud is not pleaded with the required specificity. . NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-COMPLAINANTS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 C E R R I T O S , C A L I F O R N I A 9 0 7 0 3 - 9 3 6 4 AN Un W N N N N N N N N N N E m m em em m T em TT e m c o NN O N Wn kA W N = O 0 0 N D R E W I N D In the alternative, under Code of Civil Procedure section 437¢c(f), the Chongs will and hereby do move the Court for an order that they are entitled to summary adjudication on the issue that the Yoos cannot recover compensatory damages or compensatory monetary recovery because the Yoos approved of, consented to, and/or acquiesced in the allocation of dividends to the Chongs upon which their claims for compensatory damages or compensatory monetary recovery is based. In the alternative, under Code of Civil Procedure section 437¢c(f), the Chongs will and hereby move for an order that they are entitled to summary adjudication on each cause of action for the reasons previously stated, including on: (i) The Yoos’ first claim for declaratory relief as the claim is time barred and, in the alternative, the Yoos have not properly alleged facts that it is timely. (ii) The Yoos’ second claim for unjust enrichment because: (a) the claim is time barred and, in the alternative, the Yoos have not properly alleged facts that it is timely; (b) there is no recognized cause of action for unjust enrichment; (c) the Yoos have not alleged that they lack adequate remedies at law; (d) the Yoos do not lack adequate remedies at law; and (e) the Yoos cannot establish the elements of causation or damages (to the extent elements of the claim), that any dividends allocated to the Chongs were unjust, or that it would be inequitable for the Chongs to retain such dividends. (iii) The Yoos’ third claim for conversion because: (a) the claim is time barred and, in the alternative, the Yoos have not properly alleged facts that it is timely; (b) the Yoos cannot establish the elements of causation or damages; (c) the Yoos cannot establish the element of lack of consent; and (d) the claim sounds in fraud but fraud is not pleaded with the required specificity. (iv) The Yoos’ fourth claim for constructive fraud because: (a) the claim is time barred and, in the alternative, the Yoos have not properly alleged facts that it is timely; (b) the Yoos cannot establish the elements of causation or damages; (c) the Yoos cannot establish the elements of non-disclosure or misrepresentation; and (d) the claim sounds in fraud but fraud is not pleaded with the required specificity. (v) The Yoos’ fifth claim for financial elder abuse because: (a) the claim is time barred and, in the alternative, the Yoos have not properly alleged facts that it is timely; (b) the Yoos cannot establish the elements of causation or damages; (c) the Yoos cannot establish the elements of wrongful conduct; and (d) the claim sounds in fraud but fraud is not pleaded with the required specificity. (vi) The Yoos’ sixth claim for cancellation of instruments because: (a) the claim is time barred and, in the alternative, the Yoos have not properly alleged facts -- NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-COMPLAINANTS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 AN Un W N CE RR IT OS , CA LI FO RN IA 9 0 7 0 3 - 9 3 6 4 N o [\ ®] N o N o N o N o No No — — — — — —_ —_ — — J AN Dn ES N Ww N o — oo \ O c o J aN w n ES N Ww N o p— DN oo that it is timely; (b) it is non justiciable; and (c) the claim sounds in fraud but fraud is not pleaded with the required specificity. PLEASE TAKE FURTHER NOTICE THAT Korey Chong is individually entitled to summary adjudication and hereby does so move, in addition to and in the alternative to the grounds already stated, for an order on the issue that the Yoos’ cannot recover compensatory damages or compensatory monetary recovery and on any claim that seeks such relief against him because such claims to relief are based on the dividends earned by the Chongs and, for all relevant times, Korey Chong earned dividends from defendant Premier Food Safety Corporation (“Premier”) in an amount no greater than that commensurate with an ownership percentage in Premier that the Yoos concede he has. Please take further notice that Korey Chong is individually entitled to summary adjudication and hereby does so move, in addition to and in the alternative to the grounds already stated, for an order that he is entitled to summary adjudication on: (i) The Yoos’ second claim for unjust enrichment because the Yoos cannot establish the elements of causation or damages (to the extent elements of the claim), that any dividend allocation to the Korey Chong was unjust, or that it would be inequitable for him to retain such dividends where at all relevant times Korey Chong earned dividends from Premier in an amount no greater than that commensurate with an ownership percentage in Premier that the Yoos concede he has. (iii) The Yoos’ third claim for conversion because, at all relevant times, Korey Chong earned dividends from Premier in an amount no greater than that commensurate with an ownership percentage in Premier that the Yoos concede he has, and thus the Yoos cannot establish the elements of lack of consent, causation, or damages. (iv) The Yoos’ fourth claim for constructive fraud because at all relevant times, Korey Chong earned dividends from Premier in an amount no greater than that commensurate with an ownership percentage in Premier that the Yoos concede he has, and thus the Yoos cannot establish the elements causation or damages. (v) The Yoos’ fifth claim for financial elder abuse because, at all relevant times, Korey Chong earned dividends from Premier in an amount no greater than that commensurate with an ownership percentage in Premier that the Yoos concede he has, and thus the Yoos cannot establish the elements of causation damages. PLEASE TAKE FURTHER NOTICE THAT the Chongs will and hereby do move the Court for an order that they are entitled to summary adjudication in their favor on their sixth cause of action -4- NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-COMPLAINANTS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 AN Un W N CE RR IT OS , CA LI FO RN IA 9 0 7 0 3 - 9 3 6 4 N o [\ ®] N o N o N o N o No No — — — — — —_ —_ — — J AN Dn ES N Ww N o — oo \ O c o J aN w n ES N Ww N o p— DN oo for declaratory relief. The Chongs are entitled to summary adjudication in their favor because Premier and the Yoos are estopped as a matter of law from denying that Jean Chong owns 36.5% of Premier’s shares and that Korey Chong owns 1.5% of Premier’s shares and/or estopped from contending the Yoos or any other shareholders have ownership stakes inconsistent with the Chongs’ collective 38% ownership stake in Premier. In the alternative, the Chongs are entitled to summary adjudication in their favor because Premier and the Yoos have admitted that Jean Chong owns 36.5% of Premier’s shares and that Korey Chong owns 1.5% of Premier’s shares and/or admitted that the neither the Yoos nor or any other shareholders have ownership stakes inconsistent with the Chongs’ collective 38% ownership stake in Premier. The motion will be based on this notice and motion and motion, the concurrently filed memorandum of points and authorities in support, the concurrently filed separate statement of undisputed material facts, the concurrently filed compendium of evidence and the exhibits therein, the files and records in this action, and any further evidence or argument that the Court may properly receive at or before the hearing. Dated: January 24, 2018 ATKINSON, ANDELSON, LOYA, RUUD & ROMO By: /s/Edward C. Ho Edward C. Ho Shawn M. Ogle Attorneys for Defendants JEAN CHONG and KOREY CHONG -5- NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-COMPLAINANTS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 AN Un W N CE RR IT OS , CA LI FO RN IA 9 0 7 0 3 - 9 3 6 4 N o [\ ®] N o N o N o N o N o No — — — — — —_ —_ — —_ J AN Dn ES N Ww N o — oo \ O c o J aN w n ES N Ww N o p— DN oo PROOF OF SERVICE (CODE CIV. PROC. § 1013A(3)) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and am not a party to the within action; my business address is 12800 Center Court Drive South, Suite 300, Cerritos, California 90703-9364. On January 24, 2018, I served the following document described as NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-COMPLAINANTS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION on the interested parties in this action as follows: Christopher J. Koorstad 1235 N. Harbor Blvd. Suite 200 Fullerton, CA 92832 Richard S. Price, II 1235 N. Harbor Blvd. Suite 200 Fullerton, CA 92832 Scott R. Albrecht Samuels Green Steel LLP 19800 MacArthur Blvd. Suite 1000 Irvine, CA 92612 Robert E. Adel Friedman, Stroffe & Gerard, PC 19800 MacArthur Blvd. Suite 1100 Irvine, CA 92612 Attorneys for Plaintiffs and Cross-Defendants BYONG W YOO and HWA YOO Tel. 714-871-1132 Fax 714-871-5620 Email: cjkoorslaw @aol.com barbigrom @aol.com Attorneys for Defendant and Cross-Defendant DONALD YOO Tel. 714-871-1132 Fax 714-871-5620 Email: rspriceii@aol.com Attorneys for Defendant and Cross-Defendant DIRK YOO Tel. 949-263-0004 Fax 949-263-0005 Email: scott.albrecht@sgsattorneys.com salbrecht @sgsattorneys.com anat.pieter @sgsattorneys.com jnguyen @sgsattorneys.com Attorneys for PREMIER FOOD SAFETY CORPORATION Tel. (949) 265-1100 Fax (949) 265-1199 Email: radel @fsglawyers.com wtran @fsglawyers.com eromero@fsglawyers.com -6- NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-COMPLAINANTS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION A T K I N S O N , A N D E L S O N , L o y A , R u u b p & R o m o A P R O F E S S I O N A L C O R P O R A T I O N A T T O R N E Y S AT L A W 1 2 8 0 0 C E N T E R C O U R T D R I V E S O U T H , S U I T E 3 0 0 AN Un W N CE RR IT OS , CA LI FO RN IA 9 0 7 0 3 - 9 3 6 4 N o [\ ®] N o N o N o N o No No — — — — — —_ —_ — — J AN Dn ES N Ww N o — oo \ O c o J aN w n ES N Ww N o p— DN oo BY EMAIL: I sent such document(s) to the email address(es) listed above or on the attached Service List. Such document(s) was scanned and emailed to such recipient(s) and email confirmation(s) will be maintained with the original document in this office indicating the recipients’ email address(es) and time of receipt pursuant to CCP § 1013(a). BY ELECTRONIC SERVICE VIA ONE LEGAL: Complying with Local Rule of Court 352, California Rule of Court 2.253(a)(1)(2) and Code of Civil Procedure § 1010.6, I caused a true and correct copy of the document(s) to be served through One Legal at www.onelegal.com addressed to the parties shown herein appearing on the above-entitled case. The service transmission was reported as complete and a copy of One Legal’s Receipt/Confirmation Page will be maintained with the original document in this office. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 24, 2018, at Cerritos, California. /s/Julie A Garcia Julie A. Garcia TF NOTICE OF MOTION AND MOTION OF DEFENDANTS AND CROSS-COMPLAINANTS FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION