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Chung v. Nara Bancorp, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Feb 1, 2012
B229826 (Cal. Ct. App. Feb. 1, 2012)

Opinion

B229826

02-01-2012

THOMAS CHUNG, Plaintiff and Appellant, v. NARA BANCORP, INC., et al., Defendants and Respondents.

Russ, August & Kabat, Steven M. Goldberg and Robert F. Gookin, for Plaintiff and Appellant. DLA Piper US, Perrie M. Weiner and Robert D. Weber, for Defendants and Respondents.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC391222)

APPEAL from a judgment of the Superior Court of Los Angeles County. Carl J. West, Judge. Affirmed.

Russ, August & Kabat, Steven M. Goldberg and Robert F. Gookin, for Plaintiff and Appellant.

DLA Piper US, Perrie M. Weiner and Robert D. Weber, for Defendants and Respondents.

Thomas Chung (Chung) appeals the summary judgment entered in favor of Chong Moon Lee (Lee), Ho Yang (Yang), Ki Suh Park (K. Park), Jesun Paik (Paik), John Park (J. Park), Yong Hwan Kim (Y. Kim), Howard Gould (Gould), James Staes (Staes), Scott Yoon-Suk Whang (Whang), Terry Schwakopf (Schwakopf), and Min Jung Kim (M. Kim) (collectively defendants) as to causes of action in Chung's complaint. The question is whether sections 102, subdivision (b)(7) and 141, subdivision (e) of the Delaware Code, title 8, shield the defendants from liability. Because they do, we find no error and affirm.

All further statutory references are to the Delaware Code, title 8, unless otherwise indicated.

FACTS

Background

Nara Bancorp, Inc. (Nara) is a Delaware corporation that is the holding company for Nara Bank (Bank). From October 2002 to September 2003, Chung served as the chairman of Nara's board of directors. During that same time, Benjamin Hong (Hong) was Nara's chief executive officer (CEO). And starting in September 2002, he was also a board member.

In October 2002, Nara's financial results for 2002 were on pace to miss analyst's expectations and the company's internal net income targets.

Hong prepared a letter dated October 10, 2002 (Letter), that stated: "The board of directors of [Bank] appreciates your decision not to withdraw the half of the profit share due to you in 2003 and 2004. Your decision would help the bank's smoother earnings curve in the future. [¶] In appreciation of your contribution, as such, the board has agreed to compensate you monetarily in the future. [Bank] will provide you with automobile expenses, Wilshire country club dues and expenses, and reasonable monetary compensation for your extra work as ex-CEO of [Bank]. All of these expenses, however, should not exceed the total of the profit share that is not claimed by you before your retirement. If you should serve as a [Bank] board member, the regular board compensation will be provided to you additionally."

Chung signed the Letter. Hong forfeited $599,950, which was 43 percent of his 2002 bonus.

The earnings impact of Hong's forfeiture amounted to approximately 6.5 cents of Nara's 2002 earnings per share on an after tax basis. Nara's ultimate earnings per share for the fiscal year ended December 31, 2002, was $1.96. That figure exceeded internal targets by one cent and analysts' expectations by two cents. Without the forfeiture, the earnings per share would have fallen short of analysts' expectations by four cents. When Nara issued its 2002 financial statements, they did not reflect an obligation for the unpaid portion of Hong's bonus.

The investigation; the restatement; the final report

In the spring of 2005, Nara's audit committee formed a special subcommittee (subcommittee) to investigate the Letter. The subcommittee then hired the law firm of Fulbright & Jaworski LLP (Fulbright) to conduct the investigation. In turn, Fulbright engaged a forensic accounting company called Navigant Consulting, Inc. (Navigant) to assist on the project.

The subcommittee met on March 24, 2005, to hear a presentation by Fulbright and Navigant. Daniel Mills (Mills) of Crowe Chizek and Company LLC (Chizek), Nara's independent auditor, participated in the meeting by telephone. At that meeting, Fulbright and Navigant personnel recommended that Nara restate its 2002 financial statements to account for a liability to Hong for $599,950. So did Mills. The subcommittee passed a resolution to follow the recommendation. The next day, Nara's board of directors convened. Victor Hsu (Hsu) of Fulbright discussed the events and chronology surrounding the Letter as well as the text and meaning of the Letter. He then presented an accounting analysis, a restatement analysis and a disclosure analysis. Hsu opined that the Letter reflected a quid pro quo arrangement and that this arrangement had not been properly accounted for and disclosed in Nara's annual report for 2002. After he offered the recommendation of Fulbright and Navigant to restate the financials, a motion was made and seconded to adopt the recommendation. The board resolved to issue a restatement.

According to Chung, Mills did not believe on March 24, 2005, that the 2002 financial statement should be restated. But Paik testified in his deposition to the contrary. None of Chung's record citations support the contention that Mills was a dissenting voice. In any event, Chung tacitly concedes that by June 2005, Mills did agree that restatement was necessary. Hsu sent an e-mail to Mills on June 2, 2005, and discussed their apparent dispute as to whether to categorize the $599,950 liability as accruing on the Letter's quid pro quo arrangement or on the unpaid portion of the bonus per Hong's employment agreement. Mills sent an e-mail on June 3, 2005, in which he also discussed how to categorize the liability but otherwise indicated his support for a restatement of the 2002 financials.

On March 30, 2005, Nara filed a Form 8-K with the United States Securities and Exchange Commission (SEC). Nara disclosed the Letter and stated that the subcommittee "determined that the failure to disclose and account for the arrangement to reimburse certain expenses . . . up to approximately $600,000 contemplated by the Letter had a material effect on [Nara's] previously issued consolidated financial statements for the year ended December 31, 2002." Thus, according to the Form 8-K, the subcommittee and Nara's board concluded that Nara should restate its consolidated financial statement for that year.

The SEC requires companies to file annual reports on a Form 10-K, quarterly reports on a Form 10-Q and notify the SEC and shareholders of major events on a Form 8-K. (<http://www/sec/gov/answers/form8k.htm>[as of Jan. 27, 2012].)

On June 9, 2005, Fulbright and Navigant issued a report to the subcommittee and concluded that "an expense reimbursement and compensation liability in the full amount of the bonus forfeiture, $599,950, should have been booked" in Nara's 2002 financial statement, and that Nara should restate the 2002 financial statement to account for that $599,950 liability.

The Hong arbitration

Nara and Bank initiated arbitration against Hong and claimed that the Letter was never properly disclosed by Hong to Nara and Bank, and that the Letter created an obligation by Nara and Bank that should have been set forth as a liability on Nara's and Bank's financial statements in 2002. According to Nara and Bank, when they restated the 2002 financial statements, they suffered enormous damages. Hong filed a counterclaim to recover a 2004 bonus for $742,201. A panel of three arbitrators found in favor of Hong. They concluded the Letter "did not document or create a new legal obligation from [Nara and Bank] to Hong and therefore did not have to be reported as a liability;" "Hong's agreement not to take the full bonus to which he was contractually entitled in 2002, and the reason there for, were not required to be disclosed in the various public earnings releases and 10Q and 10K reports filed by [Nara and Bank] for the quarterly and annual periods involved;" and as "a consequence of the foregoing, there was no requirement in 2005 to restate the financial statements of 2002." In addition, the arbitrators concluded that Hong was entitled to his 2004 bonus and awarded him $742,201 plus 10 percent interest.

Events in 2008

In 2008, Nara's board considered whether to revise the restatement of the 2002 financial statement, and whether to sue Fulbright, Navigant and Chizek. The board decided not to take action. In addition, the board issued a Form 8-K disclosing that it lost the Hong arbitration. However, the board did not disclose the specifics as to why Nara lost.

One of Chung's experts stated in a declaration that Nara improperly reported Hong's forfeiture as income in 2007 instead of reporting it in a second restatement of the 2002 financial statements.

The complaint

Chung sued the defendants for breach of fiduciary duty and corporate waste. The following facts were alleged: In 2005, Lee, J. Park, K. Park, Paik, Y. Kim and Yang (2005 Directors) were on Nara's board. In 2008, Lee, J. Park, K. Park, Paik, Gould, Staes, Whang, Schwakopf and M. Kim (2008 Directors) were on the board. The 2005 Directors breached their fiduciary duty to Nara by hiring Fulbright and Navigant "to reach the predetermined conclusion that . . . the restatement of [Nara's] financials was required[;]" by issuing a Form 8-K that was false and misleading; and by failing to sue Fulbright, Navigant and Chizek for negligence. The 2008 Directors breached their fiduciary duty to Nara by failing to sue Fulbright, Navigant and Chizek for negligence; by failing to sue the 2005 Directors; by failing to issue a Form 8-K on behalf of Nara disclosing the findings in the award in the Hong arbitration; by improperly issuing financial statements in 2007 that purported to show profits which should have been correctly identified as income recognized in 2002; and by failing to restate the 2007 financial statements.

The corporate waste cause of action alleged that the defendants damaged Nara in a sum exceeding $54 million.

The motion for summary judgment; the ruling

The defendants moved for summary judgment based on the business judgment rule and the statutory protection of sections 102, subdivision (b)(7) and 141, subdivision (e). The trial court granted the motion.

This timely appeal followed.

STANDARD OF REVIEW

A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) "To assess the record for error, we utilize a three-step analysis: "First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]' [Citation.]" (Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 71.) "[W]e construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it." (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.)

DISCUSSION

According to Chung, there are triable issues as to whether the 2005 Directors can be held liable for the decision to restate the 2002 financials, and whether the 2008 Directors can be held liable for the following: (1) failing to take action against Fulbright and Navigant for their negligence; (2) failing to take action against Chizek for its audit affirming the decision to restate the 2002 financial statement; (3) failing to take action against the 2005 board of directors; (4) failing to issue a form 8K on behalf of Nara after the Hong arbitration disclosing the reasons set forth by the arbitrators for their decision; (5) improperly issuing financial statements in 2007 that purported to show profits which should have correctly been identified as income recognized in 2002, thereby inflating Nara's profitability in 2007; and (6) failing to restate the 2007 financial statements. We discuss these issues below.

I. Preliminary matter: Delaware law.

The defendants have invoked three defenses: the business judgment rule, section 102, subdivision (b)(7) and section 141, subdivision (e). To properly frame this appeal, it is necessary to explicate these defenses.

We start with the business judgment rule. It presumes that when a corporation's board of directors takes action, it is well-informed and honestly believes it is serving the best interests of the corporation and its shareholders. This presumption applies and generally shields a board from liability unless there is evidence of fraud, bad faith, or self-dealing, or if the board's decision cannot be attributed to any rational business purpose. (In re Walt Disney Co. Derivative Litigation (Del. Ch. 2005) 907 A.2d 693, 746-747.) However, "[e]ven if the [board] [has] exercised [its] business judgment, the protections of the business judgment rule will not apply if the [board] [has] made an 'unintelligent or unadvised judgment.'" (Id. at p. 748; McMullin v. Beran (Del. 2000) 765 A.2d 910, 922 ["The business judgment rule is rebutted if the plaintiff shows that the directors failed to exercise due care in informing themselves before making their decision"]; Smith v. Van Gorkom (Del. 1985) 488 A.2d 858, 872 ["[A] party attacking a board decision as uninformed must rebut the presumption that its business judgment was an informed one"].) The "concept of gross negligence is . . . the proper standard for determining whether a business judgment reached by a board of directors was an informed one." (Id. at p. 873.)

In re Caremark Intern. Inc. Deriv. Lit. (Del. Ch. 1996) 698 A.2d 959, 967-968, footnotes omitted, succinctly explained the business judgment rule this way: "What should be understood . . . is that compliance with a director's duty of care can never appropriately be judicially determined by reference to the content of the board decision that leads to a corporate loss, apart from consideration of the good faith or rationality of the process employed. That is, whether a judge or jury considering the matter after the fact, believes a decision substantively wrong, or degrees of wrong extending through 'stupid' to 'egregious' or 'irrational,' provides no ground for director liability, so long as the court determines that the process employed was either rational or employed in a good faith effort to advance corporate interests. To employ a different rule—one that permitted an 'objective' evaluation of the decision—would expose directors to substantive second guessing by ill-equipped judges or juries, which would, in the long-run, be injurious to investor interests. Thus, the business judgment rule is process oriented and informed by a deep respect for all good faith board decisions."

Next, through statutory authorization, a corporation may include within its certificate of incorporation a limit on the personal liability of a director for monetary damages for breach of fiduciary duty. However, "such provision shall not eliminate or limit the liability of a director: (i) For any breach of the director's duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under § 174 of this title; or (iv) for any transaction from which the director derived an improper personal benefit." (§ 102, subd. (b)(7).)

Last, a member of a company's board of directors "shall . . . be fully protected in relying in good faith upon the records of the corporation and upon such information, opinions, reports or statements presented to the corporation by any of the corporation's officers or employees, or committees of the board of directors, or by any other person as to matters the member reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the corporation." (§ 141, subd. (e).)

These rules implicate the concept of good faith. "A failure to act in good faith may be shown, for instance, where the fiduciary intentionally acts with a purpose other than that of advancing the best interests of the corporation, where the fiduciary acts with the intent to violate applicable positive law, or where the fiduciary intentionally fails to act in the face of a known duty to act, demonstrating a conscious disregard for his duties." (In re Walt Disney Co. Derivative Litigation (Brehm v. Eisner) (Del. 2006) 906 A.2d 27, 67.) Gross negligence, without more, does not constitute bad faith. (Id. at pp. 64-65; Stone v. Ritter (Del. 2006) 911 A.2d 362, 369 ["a failure to act in good faith requires conduct that is . . . more culpable than[] the conduct giving rise to a violation of the fiduciary duty of care"].)

In our view, the statutory defenses create a higher hurdle to liability than the business judgment rule. (In re Citigroup Inc. Shareholder (Del. Ch. 2009) 964 A.2d 106, 125 ["the burden required for a plaintiff to rebut the presumption of the business judgment rule by showing gross negligence is a difficult one, and the burden to show bad faith is even higher"].) Thus, an irrational and grossly negligent decision may not be protected by the business judgment rule, but it could very well be protected by an applicable statutory defense.

II. The 2005 Directors.

Chung argues that there is a triable issue as to whether the 2005 Directors relied in good faith on their advisors when deciding to restate the 2002 financial statements.

We disagree.

It was undisputed below that Fulbright and Navigant had the requisite expertise to conduct the investigation, and that they were selected with reasonable care. The question, then, is whether the 2005 Directors in fact relied on the recommendation of Fulbright and Navigant. And if the 2005 Directors did rely, did they either act for a purpose other than advancing the best interests of Nara or intentionally fail to act in the face of a known duty to act? Alternatively, did the 2005 Directors act with the intent to violate the law?

Lee, J. Park, K. Park, Paik, and Yang declared that when they decided to restate the 2002 financial statements, they relied in good faith on the opinions, statements and reports presented by Fulbright and Navigant, and on the advice of Chizek. Based on this evidence, the 2005 Directors shifted the burden regarding their section 141, subdivision (e) defense.

The appellate record does not contain a declaration from Y. Kim. The defendants' separate statement, however, indicated he filed one.

We note that in the statement of facts in Chung's opening brief, one of the subheadings stated: "[Chung] Provides Expert Declarations Setting Forth Competent Evidence That Could Lead A Reasonable Jury To Find That [the 2005 Directors] Were Grossly Negligent." He summarized the declarations of Robert Untracht (Untracht) and Sam Wild (Wild).

According to Chung, Untracht opined: the record is devoid of evidence that the 2005 Directors exercised independent thought and judgment, or that they had the ability to make an informed determination as to the proper accounting to be made based on the Letter; the 2005 Directors did not inform themselves of all material facts; either they were inattentive to what they signed or they never reviewed the executed documents or they did not understand what they were signing; there is an inference that the 2005 Directors did not reveal the full extent of their knowledge to the investigators, or that they misled the investigators; the evidence suggests that the 2005 Directors failed to adequately consider the propriety of the actions taken by the Nara employee who instituted an outside investigation without consulting Lee, the chairman of Nara's board; at the time of the oral presentation by Fulbright and Navigant, the investigators were divided as to whether the Letter was an enforceable contract, whether Hong had forfeited his bonus, and whether the second paragraph of the Letter provided a quid pro quo for the foregone portion of the 2002 bonus; based on the application of generally accepted accounting principles, any compensation payable to Hong for future services, if any, would be properly reflected in the time period in which such payments were incurred; the 2005 Directors did not meet the standard of care to be expected of them because they totally deferred to the investigators notwithstanding such knowledge as the fact that Hong stated he forever relinquished a portion of his 2002 bonus; the 2005 Directors knew or should have known that their own experts opined that the term "smoother earnings curve" standing alone did not indicate any sinister activity and it was not improper to reduce expenditures to reach projected profits.

In his opening brief, Chung stated: "At the time the [2005 Directors] announced the restatement there was a conflict in the opinions of their experts regarding the necessity for a restatement." The implication is that Chung was averring that the 2005 Directors knew about this alleged conflict at the time they made their decision. At oral argument, however, Chung clarified that the 2005 Directors had no idea about the conflict. Also, Chung clarified that the lawyer and accountant relied upon by the 2005 Directors ultimately agreed that a restatement was required but that they did not initially agree on the rationale.

Wild, per Chung, stated: the 2005 Directors knew or should have known that a restatement would have a serious and significant impact on the stock value and any decision that could result in a severe impact should be undertaken with the utmost care and knowledge that such action was necessary; it was not necessary for the financial statements for 2002 to disclose that Hong had given up a portion of his bonus in order to achieve earnings; the restatement was unnecessary and incorrect; Hong's reduction in compensation in 2002 was not a liability of Nara as of December 31, 2002, because it did not meet the definition of a liability as envisioned in the generally accepted accounting principles; if Chung and Hong agreed in 2002 that the reasonable monetary compensation for extra work as ex-CEO of Nara was indeed a contractual obligation, then no amount would be accruable at that point, and such amounts would be accruable only when and if such services were performed; had the 2005 Directors obtained a written waiver of the unpaid bonus, as Hong offered, the 2005 Directors could have avoided taking the act of issuing a restatement; the 2005 Directors did not comply with generally accepted accounting principles.

What immediately jumps out from the Untracht and Wild declarations is that neither one of them opined that the 2005 Directors acted in bad faith. But in his opening brief, Chung nonetheless argues that these declarations create a triable issue as to section 141, subdivision (e) because a reasonable jury could conclude that the decision of the 2005 Directors to restate the 2002 financial statement was grossly negligent and/or not made in good faith. Specifically, he argues that the 2005 Directors acted in bad faith because they were inattentive or uninformed as to the reasoning and findings of their advisors; because they relied on their advisors without question; and, in the alternative, they did not rely on anyone's advice. For support, he cites McCall v. Scott (2001 6th Cir.) 250 F.3d 997 (McCall) and Ryan v. Lyondell Chemical Company (2008) 2008 Del.Ch. LEXIS 125 (Ryan).

McCall held that the duty of good faith is breached when a director consciously disregards his duties to the corporation or consciously disregards a known risk and causes stockholders to suffer. (McCall, supra, 250 F.3d at p. 1001.) The plaintiffs' complaint accused "the directors not merely of 'sustained inattention' to their management obligations, but rather of 'intentional ignorance of' and 'willful blindness' to 'red flags' signaling fraudulent practices throughout" their corporation. (Ibid.) The court held that the plaintiffs' claims, if proven, would not be precluded by section 102, subdivision (b)(7). (McCall, supra, at p. 1001.)

Inescapably, McCall is distinguishable. It involved passive directors who did not, as here, make a decision based on recommendations from competent advisors. Nonetheless, Chung asks us to infer that the 2005 Directors disregarded duties or risks. We decline. Case law teaches that "[w]hen opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork. [Citation.]" (Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 161.) Simply put, it is unreasonable to infer that the 2005 Directors consciously disregarded duties or risks when they made their decision to issue the restatement only after hundreds of hours of investigation and only after receiving advice from competent professionals. Nor is it reasonable to infer that the 2005 Directors completely ignored the advice of Fulbright and Navigant when the 2005 Directors did exactly as they were advised.

In Ryan, the directors were sued for breach of fiduciary duty in connection with the sale of their company. The record indicated that the directors knew the company might be sold but they did not prepare or develop a strategy for maximizing shareholder value; they failed to confirm both before and after the deal that a better deal was not available; and they did not negotiate the offer. (Ryan, supra, 2008 Del. Ch. LEXIS at pp. *1-*2.) These facts raised the specter of bad faith. (Id. at p. *14.) No such specter has been raised by Chung. The 2005 Directors took informed and decisive action—right or wrong—and did not act in bad faith.

Secondarily, Chung suggests that if the 2005 Directors were guilty of gross negligence, then they were also guilty of bad faith. But the law of Delaware establishes the opposite. Accordingly, we have no cause to determine whether the 2005 Directors were guilty of gross negligence.

Based on the record, we conclude that section of section 141, subdivision (e) shields the 2005 Directors from liability.

In his opening brief, Chung contends that some of the 2005 Directors were not disinterested because they wanted to avoid liability for issuing an erroneous 2002 financial statement. As a result, Chung contends that those directors cannot rely on the business judgment rule. Because we base our decision on the statutory defenses, we need not reach this issue.

III. The 2008 Directors.

With respect to the 2008 Directors, Chung contends that there are multiple unidentified triable issues regarding their decisions following the Hong arbitration. This contention is unavailing.

It was undisputed below that Article XI of Nara's certificate of incorporation provides in part: "To the fullest extent permitted by Delaware law, as it may be amended and supplemented from time to time, a director of the corporation shall not be liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director." In addition, the separate statement indicated that the 2008 Directors exercised their business judgment in making postarbitration decisions, and that they relied on management and legal counsel to make all legally necessary public disclosures about the arbitration. To provide evidentiary support, Lee, J. Park, K. Park, Paik and Gould declared: "Following an arbitration decision in August 2007 concerning claims asserted by Nara against [Hong] arising from the Letter and Restatement, I considered whether any revision to the Restatement was warranted, and whether any legal action should be taken against the persons who recommended that Nara should restate its 2002 financial statements. Following significant consideration and deliberation by the Board, I and the Board exercised our business judgment and determined not to revise the Restatement, and that the commencement of legal action against those persons was not in the best interests of Nara and its shareholders at that time." In addition, each averred: "I and the Board relied in good faith upon Nara's management and legal counsel to make all legally necessary and appropriate public disclosures regarding the arbitration decisions." The declarations of these individuals were sufficient to implicate the protection of section 102, subdivision (b)(7) and, inferably, section 141, subdivision (e) because good faith and reliance on competent advice can be inferred.

In his opening brief, Chung offered a single paragraph to demonstrate reversible error regarding the 2008 Directors. Chung argued: "Critically, the 2008 Nara Board, unlike the 2005 Nara Board, never formed a 'Special Subcommittee' to determine what actions should be taken. Instead, and as acknowledged in [the defendants'] Motion for Summary Judgment, 'each of the then-serving directors exercised their business judgment.' Accordingly, because [the defendants'] post-arbitration inaction is the very antithesis of a 'textbook example of good corporate governance,' because there is no evidence that would indicate that [the defendants'] refusal to take post-arbitration actions is entitled to the protection of the business judgment rule, and because [Chung] has raised numerous issues of material triable fact with respect to [the defendants'] post-arbitration breaches, none of which were actually addressed in either the [motion for summary judgment] or the trial court's ruling, summary judgment on these allegations was improperly granted."

Having failed to properly address the statutory defenses with respect to the 2008 Directors, Chung waived his argument. Indeed, it "is not our responsibility to develop an appellant's argument." (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.)

All other issues raised by the parties are moot.
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DISPOSITION

The judgment is affirmed.

The defendants shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

J.

ASHMANN-GERST
We concur:

P. J.

BOREN

J.

CHAVEZ


Summaries of

Chung v. Nara Bancorp, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Feb 1, 2012
B229826 (Cal. Ct. App. Feb. 1, 2012)
Case details for

Chung v. Nara Bancorp, Inc.

Case Details

Full title:THOMAS CHUNG, Plaintiff and Appellant, v. NARA BANCORP, INC., et al.…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Date published: Feb 1, 2012

Citations

B229826 (Cal. Ct. App. Feb. 1, 2012)