Judge: Anne Richardson, Case: 19STCV07632, Date: 2023-12-15 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 19STCV07632    Hearing Date: December 18, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Pleadings Framing Motion

On March 4, 2019, Plaintiff Western Union Financial Services Inc. (Western Union) sued individual defendants Kelly Ranghee Kang [wife] and Jeong Hoon Kang [husband], and entity defendants RJN Group, Inc. and RK Deli Corporation, all of who/which operate/do business as a grocery market named Aloha Deli Market.

The operative November 18, 2021 Second Amended Complaint (SAC) alleges ten claims: (1) Breach of Written Contract; (2) Account Stated; (3) Open Book Account; (4) Breach of Fiduciary Duty; (5) Conversion; (6) Unjust Enrichment; (7) Common Counts; (8) Violation of Voidable Transfers Act [Civil Code § 3439.04]; (9) Violation of Voidable Transfers Act [Civil Code § 3439.05]; and (10) Civil Conspiracy.

The claims arise from allegations that Defendants failed to remit $98,760.17 to Western Union—seemingly as part of Western Union transactions effected at the Aloha Deli Market—with a 2% penalty interest imposed on these owed monies beginning December 31, 2018.

Status of Defendants

On January 18, 2022, Western Union appears to have effected service of the SAC on all Defendants.

On March 1, 2022, Defendants Kelly Ranghee Kang and Jeong Hoon Kang filed an Answer to the SAC.

On May 5, 2022, Western Union obtained an entry of default against Defendants RJN Group, Inc.

On May 23, 2022, Western Union again effected service of the SAC on Defendant RK Deli Corporation.

On July 19, 2022, Western Union obtained an entry of default against Defendant RK Deli Corporation.

Motion Before the Court

On September 26, 2023, Western Union moved for an order granting summary adjudication as to Western Union’s first, third, fifth, and seventh causes of action against Defendant Kelly Ranghee Kang, individually and dba Aloha Deli Market.

On December 1, 2023, the Court held a Post-Mediation Status Conference, at which Defendants made no appearances. At that time, Western Union’s counsel informed the Court of their attempts to communicate with Defendant to schedule a mediation session and that they had not received any responses.

Western Union’s motion is unopposed by all Defendants and is now before the Court.

Motion for Summary Adjudication

Legal Standard

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact for trial or that the moving party is entitled to a judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) A party may also seek summary adjudication of select causes of action, affirmative defenses, claims for damages, or issues of duty, which may be made by a standalone motion or as an alternative to a motion for summary judgment and proceeds in all procedural respects like a motion for summary judgment. (Code Civ. Proc., § 437c, subds. (f)(1)-(2), (t); see Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855, questioned by dictum in Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1094, fn. 2 [finding that summary adjudication may be granted as to separate factual grounds supporting a claim stated as a single count because the separate grounds state a separate cause of action].) The moving party bears the initial burden of production to make prima facie showing no triable material fact issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) This burden on summary judgment or adjudication “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Id. at p. 850, fn. 11.) If the moving party meets this burden, the burden shifts to the opposing party to make a rebuttal prima facie showing that a triable issue of material fact exists. (Id. at p. 849.) “[I]n ruling on motions for summary judgment courts are to ‘“liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”‘ [Citations].” (Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, 760.)

I.

Summary Adjudication, SAC, First, Fifth, and Seventh Causes of Action: DENIED, without prejudice.

Western Union moves for an order granting summary adjudication as to Western Union’s first, fifth, and seventh causes of action against Defendant Kelly Ranghee Kang, individually and dba Aloha Deli Market.

Western Union’s motion cites to its separate statement at various undisputed material facts to in turn cite to evidence supporting the elements for each of these three causes of action. (See Motion (Mot.,), pp. 6-8, citing Mot., Separate Statement (Sep. St.), Undisputed Material Fact (UMF) Nos. 1-9 [evidence supporting showing for one or more of the elements of breach of contract], 13-15 [same for conversion claim], 16-18 [same for money had and received claim].)

Half of the UMFs supporting the first cause of action cite evidence that was not attached to the moving papers. (See Mot., Sep. St., UMF Nos. 1-4, 6, 8, citing, in relevant part, Mot., Badilla Decl., Exs. A-B & Mot., Spector Decl., Ex. A [no attachments].) And two out of the three respective UMFs supporting summary adjudication of the fifth and seventh causes of action cite evidence that was not attached to the moving papers. (Mot., Sep. St., UMF Nos. 14-15, citing, in relevant part, Mot., Spector Decl., Ex. B [no attachments, fifth cause of action]; UMF Nos. 17-18, citing, in relevant part, Mot., Spector Decl., Ex. B [no attachments, seventh cause of action].)

Given that parts of the evidence in support of summary adjudication of these three causes of action are missing, the Court cannot grant the relief requested as to these claims.

Western Union’s motion is thus DENIED as to the SAC’s first, fifth, and seventh causes of action, without prejudice.

II.

Summary Adjudication, SAC, Third Cause of Action: DENIED, without prejudice.

“A book account may furnish the basis for an action on a common count ‘“… when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.”’ [Citations.] A book account is described as ‘open’ when the debtor has made some payment on the account, leaving a balance due. [Citation].” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.)

Importantly, “‘[an open] book account may be deemed to furnish the foundation for a suit in assumpsit … only when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.’ … ‘The term “account,” … clearly requires the recording of sufficient information regarding the transaction involved in the suit, from which the debits and credits of the respective parties may be determined, so as to permit the striking of a balance to ascertain what sum, if any, is due to the claimant.’” (Robin v. Smith (1955) 132 Cal.App.2d 288, 291, internal citations omitted.)

“The law does not prescribe any standard of bookkeeping practice which all must follow, regardless of the nature of the business of which the record is kept. … [I]t makes no difference whether the account is kept in one book or several so long as they are permanent records, and constitute a system of bookkeeping as distinguished from mere private memoranda.” (Egan v. Bishop (1935) 8 Cal.App.2d 119, 122.) “[T]he mere entry of dates and payments of certain sums in the credit column of a ledger or cash book under the name of a particular individual, without further explanation regarding the transaction to which they apply, may not be deemed to constitute a ‘book account’ upon which an action in assumpsit may be founded.” (Tillson v. Peters (1940) 41 Cal.App.2d 671, 679.)

Western Union cites exclusively the declaration of its Director of Platform Operations, Jorge Ramirez Badilla, to support summary adjudication of the Complaint’s third cause of action. (Mot., pp. 6-7, citing Mot., Sep. St., UMF Nos. 10-12, in turn citing Mot., Badilla Decl., ¶¶ 1-13.)

However, if an open book account claim must be premised on “a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant” (Robin v. Smith, supra, 132 Cal.App.2d at p. 291), then the Court is lacking the most critical piece of evidence to grant summary adjudication of this claim: an actual statement of the debits and credits of the transactions between the parties that provides sufficient evidence on summary adjudication of the open book account at issue. Even if Western Union had attached the exhibits it failed to attach to its motion, as discussed above in Section I, none of those documents were a statement of debits and credits. (See Mot., Badilla Decl., ¶¶ 4, 12 [Agency Agreement, Guaranty Agreement]; Mot., Spector Decl., ¶¶ 2, 4, Exs. A-B [copies of Requests for Admission served on Defendant].)

Western Union’s motion is thus DENIED as to the SAC’s third cause of action, without prejudice. 

Conclusion

Plaintiff Western Union Financial Services, Inc.’s Motion for Summary Adjudication of First, Third, Fifth, and Seventh Causes of Action Against Defendant Kelly Ranghee Kang, individually and dba Aloha Deli Market is DENIED, without prejudice.