Judge: Anne Richardson, Case: 22STCV19312, Date: 2023-02-14 Tentative Ruling
Case Number: 22STCV19312 Hearing Date: February 14, 2023 Dept: 40
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SARAH DALISAY, et al., Plaintiffs, v. MYEONGJA CHOI, Defendant. |
Case No.: 22STCV19312 Hearing Date: 2/14/23 Trial Date:
Not Set [TENTATIVE] RULING RE: 1) Sarah Dalisay, Hun B. Park, and Jashikdl
Inc.’s Demurrer to Myeongja Choi’s Cross-Complaint. |
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MYEONGJA CHOI, Cross-Complainant, v. SARAH DALISAY, et al., Cross-Defendants. |
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MOVING PARTY: Cross-Defendants Sarah
Dalisay, Hun B. Park, and Jashikdl Inc.
OPPOSITION: Cross-Complainant Myeongja
Choi
Background: On
June 13, 2022, Sarah Dalisay and Hun B. Park brought this action against
Myeongja Choi, asserting causes of action for:
1)
Financial Elder Abuse
2)
Breach of Fiduciary Duty
3)
Fraudulent Misrepresentation
4)
Unjust Enrichment
5)
Cancellation of Written Instrument
6)
Quiet Title
7)
Imposition of Constructive Trust
8)
Conversion
Dalisay is the
daughter of Park and has power of attorney over Park. Dalisay and Park allege
Choi took advantage of Park in his old age by diverting funds from Park’s bank
account, stealing cash from Park, tricking Park into purchasing personal
property for Choi, and tricking Park into conveying 50% ownership of the property
located at 207 S. Serrano Avenue, Los Angeles, CA 90004 (the “Serrano
Property”) to Choi.
On September 6,
2022, Choi cross-complained against Sarah
Dalisay, Hun B. Park, Jashikdl Inc., Matt Ehrlich, and NAI Capital Commercial,
Inc., asserting causes of action for:
1)
Contractual Fraud
2)
Conspiracy to Commit Fraud
3)
Cancellation of Written Instrument
4)
Common Counts
5)
Unjust Enrichment
6)
Quiet Title
7)
Declaratory Relief
Choi alleges she
jointly holds title to the Serrano Property with Jashikdl Inc., who is the
alter ego of Park. Choi further alleges Dalisay and Park conspired with real
estate agent Ehrlich and his firm NAI Capital Commercial, Inc. to forge her signature
on a California Residential Purchase Agreement (“Purchase Agreement”) and
fraudulently sell the Serrano Property to nonparty Ronen Henn. Choi also
alleges Dalisay, Park, and Jashikdl Inc. have failed to repay the $286,992.86 they
borrowed from her.
On November 8,
2022, Dalisay, Park, and Jashikdl Inc. (collectively “Demurring
Cross-Defendants”) demurred to each cause of action in the cross-complaint. On
January 27, 2023, Choi filed an opposition, and on February 6, 2023, Demurring
Cross-Defendants filed a reply.
The Court considered the moving papers,
the opposition, and the reply and rules as follows:
Meet and Confer:
SATISFIED
“Before filing a demurrer…the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of
determining whether an agreement can be reached that would resolve the
objections to be raised in the demurrer.” CCP § 430.41(a).
On October 7, 2022,
counsel for Demurring Cross-Defendants spoke to opposing counsel about this
demurrer but was unable to come to an agreement. (Rios Decl., ¶ 4.) The meet
and confer requirement has been satisfied.
Demurrer:
Legal Standard
A demurrer tests the sufficiency of the pleading at issue as a
matter of law. City of Chula Vista v. County of San Diego (1994) 23
Cal.App.4th 1713, 1719. A demurrer may be sustained where the complaint fails
to state facts sufficient to constitute a cause of action.
CCP § 430.10(e). The ultimate facts alleged in the complaint must be
deemed true, as well as all facts that may be implied or inferred from those
expressly alleged. Marshall v. Gibson, Dunn & Crutcher (1995) 37
Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984)
155 Cal.App.3d 103, 133 [“On demurrer, pleadings are read liberally and
allegations contained therein are assumed to be true.”]. However, the Court
does not assume the truth of allegations expressing conclusions of law or
allegations contradicted by the exhibits to the complaint or by matters of
which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates
(1995) 36 Cal.App.4th 698, 709.
If the demurrer is sustained, plaintiff “has the burden of proving
the possibility of cure by amendment.” Czajkowski v. Haskell & White,
LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice
Corp. (2004) 120 Cal.App.4th 72, 78-79). Leave to amend must be allowed
where there is a reasonable possibility of successfully stating a cause of
action. Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.
Analysis
Demurring Cross-Defendants demur on grounds that each cause of
action in the cross-complaint fails to state facts sufficient to constitute a
cause of action. Code Civ. Proc. § 430.10(e).
First Cause of Action: Contractual Fraud
Here, Choi’s cause of action for contractual fraud is misplaced.
Choi alleges that one of the cross-defendants forged her signature on the
Purchase Agreement conveying the Serrano Property on January 21, 2022. (X-Compl.,
¶ 23.) But Choi does not allege this was done with an intent to induce her to
rely or otherwise act, or that she justifiably relied and/or acted based on
this misrepresentation. Ostensibly it was the buyer, nonparty Ronen Henn, who
justifiably relied on the alleged misrepresentation. Choi has not pled a
misrepresentation that she justifiably relied on, and thus Choi has not
sufficiently pled contractual fraud.
Accordingly, the demurrer to
the first cause of action for contractual fraud is SUSTAINED.
Second Cause
of Action: Conspiracy to Commit Fraud
“Civil conspiracy is not an independent tort. Instead, it is a
legal doctrine that imposes liability on persons who, although not actually
committing a tort themselves, share with the immediate tortfeasors a common
plan or design in its perpetration.” City of Industry v. City of Fillmore
(2011) 198 Cal.App.4th 191, 211-212 (quotation marks omitted).
As explained above, Choi fails to plead the underlying tort of
fraud, and thus there is no liability to impose on other cross-defendants. Conspiracy
to commit fraud is not an independent cause of action.
Accordingly, the demurrer to
the second cause of action for conspiracy to commit fraud is SUSTAINED.
Third Cause of
Action: Cancellation of Written Instrument
For cancellation of a written instrument a cross-complainant must
show: (1) a written instrument; (2) a reasonable apprehension that it may cause
serious injury to someone; (3) as to whom it is void or voidable. See Civ. Code
§ 3412 [“A written instrument, in respect to which there is a reasonable
apprehension that if left outstanding it may cause serious injury to a person
against whom it is void or voidable, may, upon his application, be so adjudged,
and ordered to be delivered up or canceled.”].
Choi has pled the requisite elements. Choi pleads the existence of
a Residential Purchase Agreement for the Serrano Property. (X-Compl., ¶ 17.) Choi
pleads the Purchase Agreement will cause her injury—specifically, a loss of her
property rights. (X-Comp., ¶ 65.) And assuming Choi is a rightful owner of the
Serrano Property and did not agree to sell it, the Purchase Agreement for the
Property would be voidable by Choi.
Demurring Cross-Defendants argue Choi has not sufficiently pled
where and when the allegedly false instrument was executed. However, Choi
pleads the Purchase Agreement was executed on January 21, 2022. (X-Compl., ¶
17.) The Court does not see why Choi must plead where the Purchase Agreement
was executed—it’s not relevant to the cause of action.
Accordingly, the demurrer to
the third cause of action for cancellation of written instrument is OVERRULED.
Fourth Cause
of Action: Common Counts
The required elements of a common count claim are “(1) the
statement of indebtedness in a certain sum, (2) the consideration, i.e., goods
sold, work done, etc., and (3) nonpayment. A cause of action for money had and
received is stated if it is alleged the defendant is indebted to the plaintiff
in a certain sum for money had and received by the defendant for the use of the
plaintiff.” Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th
445, 460 (citation and quotation marks omitted).
Here, Choi pleads the requisite elements. The cross-complaint
states that Demurring Cross-Defendant asked for and received $286,992.86
from Choi. (X-Comp., ¶ 67.) As consideration, Demurring Cross-Defendant’s
allegedly agreed to repay Choi upon her demand. (Id., ¶ 68.) According
to the cross-complaint, however, Demurring Cross-Defendants have failed to
repay Choi despite her demands. (Id., ¶ 69.)
Demurring Cross-Defendants
argue Choi has not pled specifics regarding when the various cross-defendants
agreed to repay Choi, how much was agreed to be paid back, the method of
payment, or if the payment would be in installments or one sum. Unlike fraud,
however, common counts do not need to be pled with particularity. Choi has pled
the necessary elements in her cross-complaint.
Demurring Cross-Defendants also
argue the defense of laches bars Choi from raising her claims. To assert a
defense of laches a cross-defendant must show: (1) Failure to assert a right;
(2) unreasonable delay; and (3) resulting prejudice to the adverse party. In
re Marriage of Powers (1990) 218 Cal. App. 3d 626, 642; see also Barndt
v. County of L.A. (1989) 211 Cal.App.3d 397, 403 fn.1 (“If the complaint
merely discloses the lapse of a long period of time without affirmatively
showing or necessarily implying any injury to the defendant therefrom, it does
not show laches on its face, and a demurrer should not be sustained.”).
Demurring Cross-Defendants have not established that they have been prejudiced
by Choi’s delay in asserting her claims. Conversely, Demurring Cross-Defendants
are the ones who raised the allegation that Choi lent Park money in their
complaint. (Compl., ¶ 1.) More to the point, the cross-complaint does not show
prejudice to any of the cross-defendants on its face, and thus the Court cannot
sustain a demurrer to the cross-complaint based on the doctrine of laches.
Accordingly, the demurrer to the
fourth cause of action for common counts is OVERRULED.
Fifth Cause of
Action: Unjust Enrichment
“The elements for a claim of unjust enrichment are receipt of a
benefit and unjust retention of the benefit at the expense of another. The
theory of unjust enrichment requires one who acquires a benefit which may not
justly be retained, to return either the thing or its equivalent to the
aggrieved party so as not to be unjustly enriched.” Lyles v. Sangadeo-Patel
(2014) 225 Cal.App.4th 759, 769 (quotation marks and citations omitted).
However, “[u]njust enrichment is not a cause of action”; it is
simply “a restitution claim.” Hill v. Roll International Corp. (2011)
195 Cal.App.4th 1295, 1307; see also Melchior v. New Line Productions, Inc.
(2003) 106 Cal.App.4th 779, 793 [“there is no cause of action in California for
unjust enrichment”].
Choi may claim unjust enrichment on the basis of her causes of
action, but unjust enrichment is not an independent cause of action.
Accordingly, the demurrer to
the fifth cause of action for unjust enrichment is SUSTAINED.
Sixth Cause of
Action: Quiet Title
An action for quiet title seeks “to establish title against
adverse claims to real or personal property or any interest therein.” Code Civ.
Proc., § 760.020(a). In an action for quiet title, a plaintiff or
cross-complainant must plead: (1) “[a] description of the property that is the
subject of the action,” specifically the location of tangible personal property
and the legal description and street address or common designation of real
property, (2) “[t]he title of the plaintiff as to which a determination under
this chapter is sought and the basis of the title,” (3) “[t]he adverse claims
to the title of the plaintiff against which a determination is sought,” (4)
“[t]he date as of which the determination is sought,” and (5) “[a] prayer for
the determination of the title of the plaintiff against the adverse claims.”
Code Civ. Proc., § 761.020.
Here, Choi pleads all the requisite elements in her
cross-complaint. The cross-complaint describes the Serrano Property as the
property located at 207 S Serrano Avenue, Los Angeles, CA 90004.
(X-Compl., ¶ 15.) Choi pleads
she holds joint title to the Serrano Property. (Id., ¶ 16.) Choi seeks a
determination that she holds an undivided joint ownership interest in the Serrano
Property, and requests the Court make a determination that her ownership in the
Property was conveyed on October 13, 2016. (Id., ¶¶ 74-75.) Finally,
Choi prays the Court enter judgment quieting title in Choi’s favor against
plaintiffs. (Id., ¶ 76.)
Demurring Cross-Defendants argue the cross-complaint contains no
specificity as to what sort of conveyance was used for the Serrano Property, whether
it was from an individual or company, or the method or instrument through which
the Property was conveyed. Demurring Cross-Defendants, however, provide no
legal authority holding that a cause of action for quiet title must plead such
specifics. Choi has pled the elements required by controlling case law.
Accordingly, the demurrer to
the sixth cause of action for quiet title is OVERRULED.
Seventh Cause
of Action: Declaratory Relief
"A
complaint for declaratory relief is legally sufficient if it sets forth facts
showing the existence of an actual controversy relating to the legal rights and
duties of the respective parties under a written instrument and requests that
these rights and duties be adjudged by the court." Maguire v. Hibernia
S. & L. Soc. (1944) 23 Cal.App.2d 719, 728.
Demurring
Cross-Defendants argue that the Court, under Code of Civil Procedure section
1061, may sustain a general demurrer to a complaint if in its discretion it appears
declaratory relief is not necessary and proper at the time and under all the
circumstances. The Court declines this option. At the demurrer stage, the Court
must accept all well-pleaded facts in the cross-complaint as true. Accepting
the facts in the cross-complaint as true, there is a controversy over ownership
of the Serrano Property and the written conveyance of the Property via the
Purchase Agreement allegedly executed on January 21, 2022.
Accordingly, the demurrer to the
seventh cause of action for declaratory relief is OVERRULED.
Conclusion
Cross-Defendants Sarah Dalisay, Hun B. Park, and Jashikdl Inc.’s demurrer
to the first, second, and fifth causes of action in Myeongja Choi’s
cross-complaint is SUSTAINED.
Cross-Defendants Sarah Dalisay, Hun B. Park, and Jashikdl Inc.’s demurrer
to the third, fourth, sixth, and seventh causes of action in Myeongja Choi’s
cross-complaint is OVERRULED.