SIMON BAE
KOREAN UNITY PRESS, U.S.A.
3010 WILSHIRE BLVD.
LOS ANGELES, CALIFORNIA 90010
Plaintiff in pro per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
SIMON BAE,
Plaintiff,
vs.
KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC.; YONG TAE LEE; and DOES 1 to 50, inclusive.
Defendant.
Case No. BC340669
Filed: September 30, 2005
PLAINTIFF'S DECLARATION IN SUPPORT OF PLAINTIFF’S OPPOSITION & OBJECTION TO DEFENDANT’S EX-PARTE APPLICATION FOR ORDER CONTINUING THE TRIAL AND REQUEST TO REOPEN DISCOVERY
Date: October 23, 2006
Time: 08:30 a.m.
Dept.: 68
DECLARATION OF SIMON BAE
I, SIMON BAE, declare as follows:
1. I am Plaintiff in pro per in the above-captioned case originally set for trial on October 30, 2006. Plaintiff submits this declaration in opposition to KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. (hereinafter “KAFLA”) and its last minute request for more than a ten (10) months continuance until July 2007.
2. Approximately two weeks prior to the date set for trial of this action, Defendant’s attorney, Dana M. Dorsett asked for a continuance of the trial on the ground that the former attorney for KFALA has withdrawn about forty (40) days prior to the trial. No exigent circumstance such as the counsel’s illness or death has been identified as the reason for the withdrawal.
3. About one months after the withdrawal, Dana M. Dorsett filed an ex parte application for an order of continuing the trial and reopening discovery. During the one month, the new attorney did not try to file a notice motion for a continuance.
4. On the date of the scheduled hearing for the application, not before 10 a.m. one day before the hearing date, October 17, 2006, Plaintiff was served with the application.
5. KAFLA, its former attorney and new attorney failed to show any good cause for a continuance sought two (2) weeks before the scheduled trial date..
6. KAFLA, its former attorney and new attorney also failed to show any exigent reason or justification for their failure to file a noticed motion for a continuance instead of filing the ex parte application.
7. Before and after the former attorney’s withdrawal, KAFLA, its former attorney and new attorney had enough time and opportunity to make themselves ready for the scheduled trial, but failed to use due diligence to do so.
8. For these reasons, and because KAFLA’s motion is too late and not properly noticed, it should be denied.
Executed in Los Angeles, California on October 19, 2006
______________________________
Simon Bae, Plaintiff in pro per.
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SIMON BAE
KOREAN UNITY PRESS, U.S.A.
3010 WILSHIRE BLVD. #1000
LOS ANGELES, CALIFORNIA 90010
Plaintiff in pro per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
SIMON BAE,
Plaintiff,
vs.
KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC.; YONG TAE LEE; and DOES 1-50, inclusive.
Defendant.
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) Case No. BC340669
Filed: September 30, 2005
PLAINTIFF’S DECLARATION IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S EX PARTE APPLICTION FOR CONTINUANCE
Date: October 30, 2006
Time: 08:30 a.m.
Place: 68
DECLARATION OF SIMON BAE
I, SIMON BAE, declare as follows:
1. I am Plaintiff in pro per in the above-captioned case originally set for trial on October 30, 2006. Plaintiff submits this declaration in opposition to YONG TAI LEE (hereinafter “LEE”)’s last minute request for more than a six (6) months continuance until April 2007.
2. One (1) week prior to the scheduled trial date, LEE’s attorney, Henry Lee asked for a continuance of the trial on the ground that one of the isses of the present case is related to another case (hereinafter “Pending Action”) which has been pending even before Plaintiff filed the original complaint for the present action one (1) year ago.
3. Henry Lee has been representing Defendants in the Pending Action before the initiation of the present action. However, the applicant has never moved for a continuance or a stay based on the same alleged reason until the last week before the trial.
4. Between September 20 and October 17, Henry Lee told KAFLA’s attorney (Dana M. Dorsett) twice that he would certainly file an ex parte application based on appeals filed in this matter, according to Dana M. Dorsett’s declaration for KAFLA’s ex parte application.
5. A few days after the deposition of Plaintiff, on about October 9, Henry Lee asked Plaintiff to stipulate for a continuance but did not explain anything about the planned ex parte application or the time and place of the hearing.
6. Even after KAFLA filed its ex parte application for a continuance on October 17, 2006,
Henry Lee has never notified Plaintiff of the planned ex parte application until he actually filed the application at the hearing for KAFLA’s which was just one (1) week before the scheduled trial date.
7. The hearing for the ex parte application filed by Henry Lee has been scheduled on October 30, 2006, which was originally the scheduled trial date.
8. Among three major issues of the present action, only one issue is partially related to the Pending Action. The present case cannot be finally decided until all of the three issues are resolved respectively.
9. Because LEE’s application fails to show any good cause for continuance and any exigent reason for his failure to file a notice motion when it was possible, and the application is too late and not properly noticed, the ex parte application should be denied.
Date: October 25, 2006
By:
Simon Bae
Plaintiff in pro per
=====================================================================
SIMON BAE
KOREAN UNITY PRESS, U.S.A.
3010 WILSHIRE BLVD.
LOS ANGELES, CALIFORNIA 90010
Plaintiff in pro per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
SIMON BAE,
Plaintiff,
vs.
KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC.; YONG TAE LEE; and DOES 1 to 50, inclusive.
Defendant.
Case No. BC340669
Filed: September 30, 2005
PLAINTIFF'S OPPOSITION & OBJECTION TO DEFENDANT’S EX-PARTE APPLICATION FOR ORDER CONTINUING THE TRIAL AND REQUEST TO REOPEN DISCOVERY;
MEMORANDUM OF POINTS & AUTHORITIES; DECLARATION IN SUPPORT OF PLAINTIFF’S OPPOSITION
Date: October 23, 2006
Time: 08:30 a.m.
Dept.: 68
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
I. STATEMENT OF FACTS
On September 30, 2005, Plaintiff, SIMON BAE filed a complaint against Defendants, KOREAN AMERICAN FEDERATION OF LOS ANGELES, INC. (hereinafter “KAFLA”) and YONG TAE LEE (hereinafter “LEE”, in order to enjoin them from acting under the invalid bylaws which the board members of KAFLA attempted to amend beyond their authorities in 2004 and seek damages from Defendants’ acts in connection with the invalid amendment of the bylaws and subsequent exercise of their authorities pursuant to the invalid bylaws.
For a year after filing the complaint, the parties have substantially finished all pretrial procedures including discovery and the trial date has been set on October 30, 2006. About 40 days before the trial date, on September 20, 2006, the former counsel for KAFLA, James Lee filed a motion to withdraw. No exigent circumstance such as the counsel’s illness or death has been identified as the reason for the withdrawal.
About one months after the withdrawal, Dana M. Dorsett filed an ex parte application for an order of continuing the trial and reopening discovery. On the date of the scheduled hearing for the application, not before 10 a.m. one day prior to the hearing date, October 17, 2006, Plaintiff was served with the application.
II. EX PARTE APPLICATION FOR AN ORDER OF CONTINUING THE TRIAL SHOULD BE DENIED BECAUSE THE MOVING PARTY FAILS TO SHOW ANY GOOD CAUSE.
“The dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” Cal. Rules Court §375(a) (West 2006). Further, California Government Code requires to compel attorneys and litigants to prepare and resolve all litigation without delay, to seek to meet the standards for timely disposition adopted pursuant to Section 68603, to commence trials on the date scheduled, and to adopt and utilize a firm, consistent policy against continuances, to the maximum extent possible and reasonable, in all stages of the litigation. Cal. Gov. Code §68607 (West 2006). Along this line, within the court’s discretion, a continuance may be granted only upon an affirmative showing of good cause requiring the continuance. Cal. Rules Court §375(c) (West 2006).
Further, the moving party can file an ex parte application when a noticed motion for a continuance cannot be filed. Therefore, the moving party must show an exigent reason for the ex parte application in addition to good causes for a continuance. However, as discussed below, the moving party fails to show any good cause for a continuance itself and the failure to follow the procedures for a noticed motion for a continuance. Accordingly, the ex parte application for an order of continuing the trial should be denied.
(1) The Substitution of the Counsel Fails to Show a Good Cause Because KAFLA and the New Counsel Had Enough Time to Make Themselves Ready for the Scheduled Trial Before and After the Former Counsel’s Withdrawal. Further, They Failed to Use Due Diligence to Meet the Trial Schedule or File a Noticed Motion for a Continuance.
The former counsel filed the motion for withdrawal forty (40) days before the trial date. The former counsel or KAFLA has never presented any exigent or unexpected reason for the withdrawal such as serious illness or death. Therefore, before and after the withdrawal, KAFLA and the former counsel had enough time to prepare for the withdrawal and make KAFLA ready to meet the scheduled trial. Even before the former counsel’s withdrawal, KAFLA should have considered and discussed the trial schedule. If it genuinely considered the necessity of a continuance, KAFLA should have tried to make itself prepared for the scheduled trial or file a noticed motion for a continuance as soon as possible. But now, more than a year after filing of the complaint and about two months after the former counsel’s withdrawal, KAFLA alleges it is not ready for the scheduled trial.
Further, after the new counsel started representing KAFLA, the new counsel had one month. During the one month, she could use due diligence in good faith to make herself ready and prepared for the scheduled trial. However, after the one month, the new counsel simply alleges that she just relied on the co-defendant counsel’s representation to make an ex parte application for a continuance for a month. Now, she simply alleges that she needs to reopen discovery and continue the trial until July 2007.
Moreover, KAFLA and its new counsel did not try to file a noticed motion for a continuance when it was possible. Even before the former counsel’s withdrawal, KAFLA should have considered and discussed the trial schedule. Right after beginning her representing KAFLA, the new counsel should have considered and discussed the trial schedule. Had a reasonable counsel genuinely considered the necessity of a continuance, the counsel would have not just wait for a month until it becomes too late for a notice motion of a continuance. Had a reasonable counsel genuinely thought the necessity of more time for discovery, the counsel would have not just wait for a month until just two weeks before the scheduled trial date. A notice motion for a continuance could be duly filed, but the counsels did not even discuss it and simply decided to file an ex parte application which was to be allowed only when the moving party could show an extreme exigency. Before it became too late to file a notice motion, the new counsel should have made sure that it would be filed by the co-defendant’s counsel or herself, but she simply waited without even discussing a noticed motion.
The present case is not seriously complicated enough to make a counsel spend more than a month to get familiar with it, to justify the ex parte application for a continuance, and to reopen discovery one year after filing the complaint. Further, the new counsel could and can cooperate with the co-party counsel who has been representing the co-defendant, Lee from the beginning of the present case. Even when a new counsel is genuinely not ready for a trial, courts did not allow a continuance when a co-party’s counsel’s representation of a party would substantially represent its co-party.
As discussed, the former counsel’s withdrawal was not due to any exigency, and KAFLA had enough time to make itself ready for the scheduled trial before and after the withdrawal. For more than one month period, the new counsel and KAFLA failed to use due diligence to make themselves ready and prepared for the scheduled trial and to file a noticed motion for a continuance when it was possible. Accordingly, the ex parte application for a continuance should be denied.
(2) Other Pending Cases in a Related Matter Fails to Show Any Good Cause Because the Cases Are Only Partially Related to Just One of three Major Issues.
The present case basically consists of three major issues: (1) whether the directors meeting of KAFLA had the authority to amend the bylaws in 2004, (2) whether, assuming arguendo the directors meeting had such authority, the directors meeting actually got approvals for the amendment from two thirds of the directors, and (3) whether, assuming arguendo two thirds of the directors approved the amendment, California Corporations Code allows such an amendment. Only the first issue is partially related to other pending cases. The second and the third issues can and should be resolved in the present action because the second issue is just a factual question about the directors meeting in 2004 and the third issue is a legal question to be determined by the presiding judge.
Each of three issues can independently support the court’s decision in favor of Plaintiff because Defendants are required to prove all three requirements of the issues. Notwithstanding decisions in other cases, the parties in the present case have to proceed the trial to get an ultimate resolution of the current case. Further, the moving party has not filed any noticed motion for a continuance based on other pending actions for more than a year since the complaint was filed. Therefore, the other pending cases fail to establish any good cause for a continuance on an ex parte application. Accordingly, the ex parte application for a continuance should be denied.
(3) Lack of Enough Discovery Fails to Show Any Good Cause Because There Is Neither Substantial Reason Nor Justification For Further Discovery.
If a discovery can be reopened by a new counsel’s simple dissatisfaction with the former counsel’s discovery, any party can reopen the discovery and continue a trial. The former counsel for KAFLA filed the motion for withdrawal forty (40) days before the scheduled trial. At the time, it was already too late to propound any further discovery request because the propounding party would have not been able to compel the response had the responding party object to the requests. After simply spending about two months, KAFLA cannot just argue for a continuance based on the necessity of further discovery which was already not allowed at the time of the withdrawal by the former counsel.
If it was really necessary, the former counsel should have tried to stipulate with Plaintiff or get a leave of the court, but he did not. If it was really necessary, the new counsel should have taken any necessary action as soon as possible, but she just simply waited for a month. Further, the moving party did not even identify any specific reason for the necessity of further discovery.
Moreover, KAFLA does not actually need any further discovery. The case focuses on the bylaws, the directors meeting in 2004, and California Corporations Code. As for the bylaws and the directors meeting, it is not Plaintiff but KAFLA who has dominant amount of evidence, documents, and witnesses. There is no justification for reopening discovery under these circumstances after spending more than a year since the complaint was filed.
As discussed, KAFLA, the former counsel, and the new counsel failed to show any good cause for a continuance based on discovery. Accordingly, the ex parte application for a continuance should be denied.
(4) KAFLA’s Plan to Revise its Bylaws in July 2007 Fails to Show Any Good Cause Because It Is Related to Just One of the Remedies Issues.
The moving party contends that the court should continue the trial for more than ten (10) months because KAFLA has a plan to revise the bylaws ten (10) months later, which is subject to any change of its own plan. The plan can be canceled or postponed for any reason.
Further, the planned revision would again be a violation the currently effective bylaws if it is amended at an annual meeting as KAFLA plans to. As stated in the complaint, the directors meeting does not have any authority to amend the bylaws, and whether the directors meeting has such authority itself is one of the major issues of the present case.
Even if KAFLA plans to get two thirds of the registered members’ votes as stated in the complaint, there would still be many issues about the detail which cannot be determined without the resolution of the current case. Therefore, such planned amendment would make the current case and situation even more complicated and the interests of KAFLA members more harmed. Further, even if KAFLA succeeds to amend the bylaws appropriately, it resolves just one of the damages stated in the complaint. There are still questions about the effectiveness of KAFLA and Lee’s official activities under the invalid bylaws conducted in the past and the damages resulted from such ineffective activities.
Under these circumstances, it is just unreasonable to continue the trial for more than ten (10) months until July 2007. Accordingly, the ex parte application for a continuance should be denied.
III. CONCLUSION
As discussed above, the moving party fails to show any good cause for a continuance and any justification for its failure to file a noticed motion for a continuance instead of the ex parte application. Accordingly, the ex parte motion for a continuance should be denied.
DATE: October 19, 2006
______________________________
Simon Bae
Plaintiff in pro per
* 발행인님에 의해서 게시물 복사되었습니다 (2006-11-02 11:30)
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