Judge Ashfaq G. Chowdhury, Case Number: 21PSCV01086, Date: 2025-04-30 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 21PSCV01086, Date: 2025-04-30 Tentative Ruling

Hearing Date: 03/20/2025 – 8:30am
Case No. 24NNCV03633
Trial Date: UNSET
Case Name: GUISHENG XU, an individual, v. JIAQI HAN, an individual; FUZHOU LIU, an individual; YINMING LIU, an individual; FIRST STOP AUTO LLC, a California limited liability company; and DOES 1 to 10, inclusive

TENTATIVE RULING ON MOTION TO VACATE AND SET ASIDE DEFAULT AND DEFAULT JUDGMENT

RELIEF REQUESTED¿¿¿
“Defendant YINMING LIU will and hereby does move this court for an order vacating and setting aside the default entered on October 11, 2024, and subsequent default judgment entered on February 4, 2025, on the grounds:

a) the Summons and Complaint purportedly served on him by substituted service on August 27, 2024, were not properly served on him and hence the default and default judgment are void;

b) alternatively, on the grounds set forth in Code of Civil Procedure section 473.5.

A copy of Defendant’s proposed Demurrer is attached to this Motion as Exhibit “C.”

The relief requested by this Motion is based upon this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the declarations of Defendant Yinming Liu and Eugene R. Long, all pleadings and documents currently on file with the Court as well as such other oral or documentary evidence as may be presented at the time of hearing on this Motion.”

(Def. Mot. p. 2.)

PROCEDURAL

Moving Party: Defendant, Yinming Liu (Defendant or Movant)

Opposing Party: Plaintiff, Guisheng Xu

Proof of Service Timely Filed (CRC, Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Moving Papers: Notice/Motion [filed 2/10/2025]; Amended Notice/Motion [filed 2/24/2025];

Opposition Papers: Opposition

Reply Papers: Reply

BACKGROUND

Plaintiff, Guisheng Xu, filed the instant action on 8/19/2024 against Defendants – (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, (4) First Stop Auto LLC, a California limited liability company, and (5) Does 1 to 10, inclusive.

Entry of default was entered against all of the non-Doe Defendants on 10/11/2024.

Does 1 to 10 were dismissed from the Complaint on 10/29/2024.

On 02/04/2025, default judgment was entered against (1) Jiaqi Han, an individual, (2) Fuzhou Liu, an individual, (3) Yinming Liu, an individual, and (4) First Stop Auto LLC, a California limited liability company.

For purposes of this hearing, the Court considers Defendant, Yinming Liu’s, amended notice/motion filed on 2/24/2025 and not the earlier filed notice/motion that was filed on 2/10/2025.

ANALYSIS
Preliminary Matter

In the instant action, Plaintiff filed four proofs of substituted service on 8/29/2024 for all of the named Defendants in this action.

Moving Defendant, Yinming Liu, moves for an order to vacate and set aside the default and default judgments entered against him on the basis that he was not properly served.

Movant appears to move pursuant to CCP § 473(d), and in the alternative, § 473.5.

The Court notes that neither party’s papers is a model of clarity. For example, neither party makes clear why § 473(d) or § 473.5 is or is not the appropriate statute to move under to vacate the default/default judgment. Generally speaking, Defendant argues that service upon him was improper, and Plaintiff argues that service upon Defendant was proper. To the Court, this motion appears to be akin to a motion to quash service of summons. Either way, since Defendant’s motion does not make clear why § 473(d) or § 473.5 is the appropriate statute, and since Plaintiff did not oppose Defendant’s motion on the grounds that those two statutes are not the proper statutes, the Court will assume Defendant moved under the proper statute.

Substantive

On 8/29/2024, Plaintiff filed a proof of service of summons that alleged substituted service on Defendant, Yinming Liu, on 8/27/2024.

Defendant, Yinming Liu, argues that service upon him was not proper.

Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.)

As to how Defendant believes that service upon him was improper is not entirely clear. Many times Defendant asserts arguments without citing legal authority. Or at times, Defendant will make reference to legal authority, but in no clear manner does Defendant explain how his argument is tied to the legal authority that he cited.

For example, Defendant first appears to argue that service upon him was not valid because Plaintiff did not personally serve him.

The argument that service was improper because Defendant was not personally served appears to be unavailing for several reasons.

First, Plaintiff’s proof of service lists service upon Defendant via substituted service; it does not list service upon Defendant via personal service.

Second, it does not appear that Defendant has to be personally served, because substituted service is an alternative to personal service.

As explained in American Express Centurion Bank v. Zara:

The Code of Civil Procedure specifies the various methods by which service may be made upon defendants who are sued as individuals.

The method described as “personal service” means service that is accomplished “by personal delivery of a copy of the summons and of the complaint to the person to be served.” (§ 415.10.) If the complaint and summons were personally delivered to, i.e., handed to, defendant then he could be said to have been “personally served.”

A defendant may also be “personally” served by delivering a copy of the summons and complaint to an agent authorized to accept service on behalf of that defendant. (§ 416.90; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶¶ 4:128 to 4:132, pp. 4–19 to 4–21; (rev. # 1, 2010) ¶ 4:184, p. 4–27 (rev. # 1, 2004) (hereafter Weil & Brown, Civil Procedure Before Trial).) An authorized agent might include, for example, an attorney who has been expressly authorized to accept service, or a sheriff or jailer having custody of a prisoner. (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:128, p. 4–19, ¶¶ 4:130.2, 4:132, pp. 4–20 to 4–21.)

Another alternative available for serving individual defendants is what is commonly known as “substitute service.” Substitute service on an individual is accomplished by “leaving a copy of the summons and complaint **103 at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address ..., at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” (§ 415.20, subd. (b).)

However, an individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint “cannot with reasonable diligence be personally delivered” to the individual defendant. (§ 415.20, subd. (b); Evartt v. Superior Court (1979) 89 Cal.App.3d 795, 801, 152 Cal.Rptr. 836.) Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as “ ‘reasonable diligence.’ ” (Weil & Brown, Civil Procedure Before Trial, supra, ¶ 4:196, p. 4–30.)

(American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.)

Thus, Defendant’s argument that service was improper because he was not personally served is unavailing.

Substituted Service – Usual Place of Business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Further, Plaintiff’s proof of service checks a box for substituted service via business to “a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served.” The proof of service also indicates that the documents were left with “Jane Doe – Angela, refused last name (Gender: F Age: 35 Height : 6’0” Weight: 120 Race: Asian American Hair: Black Other: Hazel Eyes) Manager.”

Under CCP § 415.20(b), substitute service is effectuated when:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

(CCP § 415.20(b).)

Defendant appears to be arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” and because service was not left with “a person apparently in charge of his or her office, place of business, or usual mailing address.”

Attached to the motion, the declaration of Defendant Yinming Liu is attached.

In relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic] by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

3. The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business. The building does not have any front desk person or onsite management office. The corporate defendant First Stop Auto LLC is a dormant entity with no revenue, employees, or operations. It does not have any manager, employees, or representatives at that address.

4. I first became aware of this lawsuit on January 2, 2025, upon receipt of a WeChat message from defendant Fuzhou Liu. A review of the lawsuit revealed that it concerns a dispute concerning an unpaid loan of $50,000 between two individuals, Plaintiff and Mr. Fuzhou Liu. It has nothing to do with me as an individual or the corporate defendant, First Stop Auto LLC.

5. On February 4, 2025, I appeared at the Court and sought to express my position to the Court. The Court advised me that it cannot give me any legal advice and the only advice to me was to retain a lawyer to file a motion for relief. Accordingly, I have retained the law firm of WHGC, PLC to file this Motion.

(Liu Decl. ¶¶ 2-5.)

To the extent that Defendant is arguing that substitute service was not proper under § 415.20(b) because he was not served at his “usual place of business,” Defendant’s declaration appears to address this in ¶ 3 of the Liu declaration wherein Liu states, “The address of 314 Garvey Avenue Monterey Park, CA 91755 is a small building with several businesses at that location, and it is not my place of business.” (Liu Decl. ¶ 3.)

In Opposition, Plaintiff argues that Defendant Yinming Liu was in fact properly substitute served at his “usual place of business.” Plaintiff argues that Liu is making misrepresentations to the Court and that the 314 Garvey address is in fact Liu’s “usual place of business.”

To support this argument, Plaintiff attaches the declaration of Plaintiff’s attorney (Tom F.Y. King), along with Exhibits A-E cited in King’s declaration.

King states as follows:

2. In or about August 2024, I searched, downloaded, and printed a statement of information filed with California Secretary of State filed by Yinming Liu on behalf First Stop Auto LLC on August 13, 2024. Attached hereto as Exhibit A is a true and correct copy of the statement of information I obtained from California Secretary of State website. It shows Yingming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC, located at 314 E Garvey Ave, Monterey Park, CA 91755.

3. Previously, before Yinming Liu filed the August 13, 2024 statement, I also searched and download a statement of information Yinming Liu filed with California Secretary of State the year before on July 5, 2023, which also shows Yinming Liu as the CEO, member, manager, and agent for service of process of First Stop Auto LLC located at 314 E Garvey Ave, Monterey Park, CA 91755. A true and correct copy of said statement is attached hereto as Exhibit B.

4. In January 2025, after the three individual defendants appeared in court to try to argue their case on January 16, 2025, I searched, found, and download from California Secretary of State website a statement of information filed by Yinming Liu on January 3, 2025 moving the company address to 797 E Arrow Hwy, Azusa, CA 91702, a copy of which is attached hereto as Exhibit C. I also found and downloaded a statement of information filed on January 16, 2025 by co-defendants Jiaqi Han moving the company address back to 314 E Garvey Ave, Monterey Park, CA 91755 and removing Yinming Liu's name from the company. A true and correct copy of said statement is attached hereto as Exhibit D.

5. As a result of the two successively filed statement of information First Stop Auto LLC filed with California Secretary of State in January 2025, all previously filed statement of information were purged from the public record. I inquired on this matter online and discovered that it is the policy of California Secretary of State to only keep the two most recently filed statement of information for an entity for public record. Attached hereto are search results from Google based on the search terms "California Secretary of State purging prior statement of information." The search result shows a general result followed by links to specific webpage results. Attached hereto as Exhibit E is a page from the general search result and a specific search results from California Secretary of State website.

(King Decl. ¶¶ 2-5.)

However, even assuming the truth of King’s declaration and the attached exhibits, Plaintiff’s argument is not on point and appears to miss the mark.

For example, to the extent that the California Secretary of State lists Yinming Liu as manager, member, CEO, and agent for service of process at the 314 E Garvey address, that information is applicable to First Stop Auto LLC. That information says nothing about the Defendant as an individual that is filing the instant motion. The instant proof of service that Defendant is arguing is improper is the proof of service as to the individual, Yinming Liu. Yinming Liu is arguing that the 314 address is not his usual place of business. At best, the information attached from the California Secretary of State would maybe seem to indicate that Yinming Liu could accept service at the 314 E Garvey address for First Stop Auto LLC since he was listed as agent of service of process for First Stop Auto LLC. However, to reiterate, that information says nothing about where Yinming Liu, the individual’s usual place of business is. At best, it may show where First Stop Auto LLC’s usual place of business is. Ultimately, First Stop Auto LLC is not moving to vacate default/quash service of summons. Here, moving Defendant is Yinming Liu the individual.

At best, maybe the successive filings with the Secretary of State tests Liu’s credibility for changing the address of First Stop Auto LLC and changing the name of the agent for service of process. However, again, even assuming there were bad faith, the Court fails to see how Plaintiff’s arguments addresses the usual place of business of the moving Defendant, Yinming Liu, the individual.

Despite all this, in Defendant’s Reply Defendant confusingly argues that even if 314 E Garvey were Liu’s place of business, service was not proper because the crucial question is whether service was proper where Plaintiff served an unknown individual at a location that housed several other businesses where there is no indication that the individual ever informed Liu of service.

Therefore, the Court will hear argument from the parties about the “usual place of business” of Defendant.

Substituted Service – Person Apparently in Charge of his or her office, place of business

The proof of service pertaining to Defendant, Yinming Liu, states that Defendant was substitute served at “314 E Garvey Ave Monterey Park, CA 91755.”

Under CCP § 415.20(b), substitute service is effectuated when:

(CCP § 415.20(b).)

Defendant argues that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship.

Further, in relevant part, Liu’s declaration states:

2. Plaintiff Guisheng Xu, states that service of a Summons and Complaint was affected [sic]by substitute service on me on August 27, 2024. Plaintiff claims that substitute service was made by serving on one Jane Doe – “Angela” -- who refused to provide her last name, who held a position as a “Manager.” I do not know this individual nor do I have any personal or business relationship with her.

(Liu Decl. ¶¶ 2-5.)

Defendant’s argument – that the individual who was served on Defendant’s behalf is not an individual with whom Liu had any personal or business relationship – is confusing because it isn’t entirely clear what portion of § 415.20(b) Defendant is arguing that Plaintiff did not comply with.

Presumably, Defendant is trying to argue that “Jane Doe – Angela” was not “a person apparently in charge of his or her office, place of business,” and thus service was improper. Defendant’s declaration does not state that Jane Does/Angela was not “a person apparently in charge of his or her office or place of business” in any explicit terms. Instead, the Liu declaration states in relevant part, “I do not know this individual nor do I have any personal or business relationship with her.” (Liu Decl. ¶ 2.)

In Opposition, Plaintiff does not address Defendant’s argument regarding the individual that was allegedly served in any clear manner. Plaintiff’s Opposition seems to mainly contest that 314 E Garvey was in fact the usual place of business of Defendant. It seems like Plaintiff attempts to argue that Defendant is not credible based on the filing with the secretary of state because Defendant would know the people at the 314 E Garvey address because it is his address.

In Reply, Defendant argues that the key issue here is that Plaintiff served an unknown individual that housed several other businesses where there is no indication that the individual ever informed Liu of the service.

Here, the Court will hear argument. Defendant appears to be arguing, although not explicitly stated in Defendant’s motion or Defendant’s declaration, that “Jane Doe – Angela” was not a person apparently in charge of his or her office, or place of business. Opposition does not do much to contest this argument. Plaintiff’s Opposition seems to just be implying that Defendant would in fact know who Angela is because the 314 Garvey address is Defendant’s business. The Reply reiterates that Defendant has no idea who Angela is and that there is no evidence to suggest that she worked with or for Liu.

473.5

Under CCP § 473.5(a):

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(CCP § 473.5(a).)

Defendant argues that the Summons and Complaint did not result in actual notice to Liu for Liu to defend the action.

However, the Court notes that neither party’s arguments regarding § 473.5 adds any further substance to their arguments. Plaintiff’s arguments that Defendant did in fact have notice are based on the same arguments previously discussed, i.e., Plaintiff argues that Defendant is lying and in fact had notice because Defendant is/was CEO of First Stop Auto LLC which is located at 314 E Garvey.

Overall

Dill v. Berquist Construction Co. states:

It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper. (M. Lowenstein & Sons, Inc. v. Superior Court (1978) 80 Cal.App.3d 762, 770 [145 Cal.Rptr. 814], quoting from Judicial Council Rep., supra, com. to § 417.10, p. 56; but see Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 255, fn. 7 [211 Cal.Rptr. 517, 695 P.2d 1058], overruling Lowenstein on a related issue.) However, that presumption arises only if the proof of service complies with the statutory requirements regarding such proofs.

(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441-1442.)

Here, Defendant appears to have shown how Plaintiff’s proof of service as to moving Defendant did not comply with the statutory requirements for proof of substituted service. Defendant appears to have shown this by showing that the location served was not his usual place of business. Plaintiff’s argument in Opposition appeared to be unavailing because at best Plaintiff may have shown that the address served was First Stop Auto LLC’s usual place of business; however, First Stop Auto LLC is not seeking to vacate the default/default judgment. Here, moving Defendant is Yinming Liu. Plaintiff did not submit proof or evidence about Yinming Liu, the individual’s, usual place of business. Even setting aside the issue of “usual place of business” and focusing on whether or not a “person apparently in charge of his or her office or place of business” was served, Defendant seems to argue that he had no idea who the person is that Plaintiff served. In Opposition, Plaintiff simply seems to argue that Defendant is lying and Defendant would know who was served because the location served was where Defendant’s business was located.

Dill v. Berquist Construction Co. states, “In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant. When a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.)

Tentatively, the Court plans to GRANT, Defendant Yinming Liu’s motion to vacate the default and default judgment entered against Yinming Liu. The Court notes that this order does not apply to the other Defendants, as no other Defendants moved to vacate default/judgment.

Case Number: 21PSCV01086 Hearing Date: April 30, 2025 Dept: E

Hearing Date: 04/30/2025 – 8:30am

Case No: 21PSCV01086
Trial Date: 9/8/2025

Case Name: ERIC CHEN, a natural person and CINDY CHOU, a natural person v. JAMES WU, a natural person; US LIFE MANAGEMENT CORPORATION, a California Corporation; CHIHUANG WU, a natural person; PUHUI WU, a natural person; and DOES 1-100 inclusive

[DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ ADJUDICATION]

MOTION 1 (Res ID 0871)

Moving Party: Defendants, Chihuang Wu and Pihui Wu (Defendants or Movants)

Responding Party: Plaintiffs, Eric Chen and Cindy Chou

Proof of service timely filed (CRC 3.1300(c)): Ok

Moving Papers filed on 2/16/2023: Notice of Motion; Memorandum; Separate Statement; Proposed Order; Evidence and Declarations in Support

Moving Papers filed on 5/18/2023: Amended Notice of Motion and Motion; Amended Separate Statement

Opposition Papers filed on 4/21/2023: Opposition; Separate Statement; Proof of Service;

Opposition Papers filed on 4/10/2025: Opposition; Response to Amended Separate Statement; Compendium of Evidence; Proposed Order; Proof of Service; Declaration of Pfrancez C. Quijano; Declaration of Eric Chen

Reply Papers filed 4/28/2023: Reply

Reply Papers filed 4/18/2025: Reply

75/80 Days

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing. If the notice is served by mail, the required 81-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81-day period of notice shall be increased by two court days.” (CCP § 437c(2).)

Here, Defendants’ motion is timely.

RELIEF REQUESTED
The Relief Requested based on Amended Notice filed on 5/18/2023:

Defendants CHIHUANG WU and PIHUI WU (collectively "Owners" and/or “Defendants”) will and hereby do move pursuant to California Code of Civil Procedure (“CCP”) §437c for summary judgment on First Cause of Action for Breach of Contract and the Second Cause of Action for Specific Performance alleged against them by Plaintiffs ERIC CHEN and CINDY CHOU (collectively “Plaintiffs”) in the operative Complaint filed by Plaintiffs on December 30, 2021, or alternatively for summary adjudication, and which Motion is made as to the following:

1. Issue No. 1: Owners have no liability on Plaintiffs’ First Cause of Action for Breach of Written Contract because the Owners did not sign the Residential Purchase Agreement, and did not breach that agreement.

2. Issue No. 2: Plaintiffs’ First Cause of Action for Breach of Written Contract is unenforceable under Civil Code § 1624(a)(3).

3. Issue No. 3: Owners have no liability on Plaintiffs’ Second Cause of Action for Specific Performance because Owners did not sign the Residential Purchase Agreement, and did not breach that agreement

4. Issue No. 4: Plaintiffs’ Second Cause of Action for Specific Performance is barred because the alleged contract for the sale of real property unenforceable under Civil Code §1624(a)(3).

(Def. Amend. Not. p. 1-2.)

BACKGROUND
Plaintiffs filed a Complaint on 12/30/2021. The Complaint stems from allegations by the Plaintiffs that Defendants backed out of a sale for property. The Complaint alleges four causes of action for – (1) Breach of Contract, (2) Specific Performance, (3) Breach of Fiduciary Duties, and (4) Fraud.

On 10/13/2023, Plaintiffs named Doe 1 as Chi-Huang Wu as Trustee of the Chi-Huang Wu and Pi-Hui Weng Wu Revocable Trust dated December 14, 2000.

Further, on 10/13/2023, Plaintiffs named Doe 2 as Pi-Hui Weng Wu (aka Pi-Hui Wu) as Trustee of the Chi-Huang Wu and Pi-Hui Weng Wu Revocable Trust dated December 14, 2000.

On 4/1/2025, Plaintiffs filed a request for dismissal to dismiss the second cause of action for specific performance as to all Defendants and to dismiss the first cause of action for breach of contract as to Defendants James Wu and USA Life Management Corporation.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

Code of Civil Procedure section 437c, subdivision (a) provides that “a party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c).) In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (Id.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP §437c(p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP §437c(f)(2).)

ANALYSIS

Causes of Action

Moving Defendants’ (Chihuang Wu and Pihui Wu) MSJ/MSA pertains to the first cause of action for breach of contract and the second cause of action for specific performance. Although Defendants’ MSJ/MSA pertained to the second cause of action, on 4/1/2025, Plaintiffs filed a request for dismissal against all Defendants with respect to the second cause of action.

Plaintiffs’ Complaint did not allege the third and fourth causes of action against Defendants.

Therefore, Defendants’ MSJ/MSA only pertains to the first cause of action.

Notice

Defendants initially filed the notice of motion and supporting memorandum on 2/16/2023. Based on the 5/5/2023 Minute Order, Defendants were directed to file an amended separate statement.

On 5/18/2023 Defendants filed an amended separate statement.

Further, on 5/18/2023, Defendants filed a document titled, “AMENDED NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS CHIHUANG WU AND PIHUI WU; OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION.” This document appears to only be an amended notice of motion, and not a motion/memorandum itself.

Therefore, since there was no amended motion/memorandum filed with the amended notice that was filed on 5/18/2023, it appears as if Defendants intended that the original memorandum/motion filed on 2/16/2023 to be the motion/memorandum that is to accompany the amended notice filed on 5/18/2023.

If this is not the case, the parties should address this at the hearing.

First Cause of Action – Breach of Contract
Defendants argue that they have no liability to Plaintiffs for breach of contract because they did not sign the proposed residential purchase agreement located in Defendants’ Exhibit 4. Problematic with Defendants’ argument is that Defendants are assuming that the contract that forms the basis of Plaintiffs’ Complaint is the residential purchase agreement in Exhibit 4.

The Complaint is unclear as to what exactly the alleged contract even is; however, Defendants did not demur to the Complaint to gain clarity as to what the Complaint is alleging forms the basis of the breach-of-contract cause of action.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186 citing Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)

Defendants cite to Civil Code 1550 which states, ““It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration.” (Civ. Code §1550.)

However, Defendants miss the forest for the trees by citing to Civil Code § 1550 because those appear to be sub-elements to the first element (the existence of the contract) of a breach-of-contract cause of action.

“Where the existence of a contract is at issue and the evidence is conflicting or admits of more than one inference, it is for the trier of fact to determine whether the contract actually existed. But if the material facts are certain or undisputed, the existence of a contract is a question for the court to decide.” (HM DG, Inc. v. Amini (2013) 219 Cal.App.4th 1100, 1109.)

Therefore, Defendants did not meet their initial burden in showing that the first element of a breach-of-contract cause of action (existence of the contract) cannot be established because Defendants assume that the breach-of-contract cause of action is based on the residential purchase agreement in Defendants’ Exhibit 4.

Further, Plaintiffs submitted the declaration of Plaintiff Eric Chen which stated, “We believed that we had an agreement for the sale and purchase of the Property, which is reflected on the several writings, consisting of the text messages and email communications, and the Purchase Agreement.” (Decl. Eric Chen ¶ 24.)

Therefore here, since the existence of the contract is at issue, it is for the trier of fact to determine whether the contract actually existed.

Defendants also argue that under the statute of frauds, Plaintiffs’ cause of action for breach of contract is barred because Plaintiffs admit that Defendants never signed a written contract to sell the property to Plaintiffs.

Defendants also argue that Plaintiffs admit that owners never provided any signed writing granting authority to the brokers to bind them to a sale of property, thus the statue of frauds precludes Plaintiffs’ breach-of-contract claim.

Under Civil Code § 1624(a)(3):

The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party’s agent:

(3) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged.

(Civ. Code § 1624(a)(3).)

Problematic with Defendants’ argument in asserting the affirmative defense of the statute of frauds is that Plaintiffs’ Opposition argues that Defendants are equitably estopped from asserting that defense.

As stated in Chavez:

Courts, however, “have the power to apply equitable principles to prevent a party from using the statute of frauds where such use would *1058 constitute fraud.” (Juran v. Epstein (1994) 23 Cal.App.4th 882, 895, 28 Cal.Rptr.2d 588.) “Without the qualifying doctrine of estoppel in a proper case the statute would encourage rather than prevent the perpetration of frauds.” (Wilk v. Vencill (1947) 30 Cal.2d 104, 108, 180 P.2d 351.) Accordingly, equitable estoppel may preclude the use of a statute of frauds defense. (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068, 60 Cal.Rptr.2d 908 (Byrne ).) “ ‘The doctrine of estoppel has been applied where an unconscionable injury would result from denying enforcement after one party has been induced to make a serious change of position in reliance on the contract or where unjust enrichment would result if a party who has received the benefits of the other's performance were allowed to invoke the statute.’ ” (Redke v. Silvertrust (1971) 6 Cal.3d 94, 101, 98 Cal.Rptr. 293, 490 P.2d 805.) Generally, “four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” (Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305, 61 Cal.Rptr. 661, 431 P.2d 245.) Whether a party is precluded from using the statute of frauds defense in a given case is generally a question of fact. (Byrne, supra, at p. 1068, 60 Cal.Rptr.2d 908.)

(Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1057-58.)

Since preclusion of the statute of frauds defense is a question of fact, the Court does not find Defendants’ argument – that the statute of frauds prevents Plaintiffs from bringing their breach-of-contract claim – to be availing.

TENTATIVE RULING Motion 1 (Res ID 0871)

Defendants’, Chihuang Wu and Pihui Wu, MSJ/MSA is DENIED; Defendants did not meet their initial burden in demonstrating an element of a breach-of-contract cause of action could not be established. Defendants’ MSJ/MSA is DENIED as moot with respect to the second cause of action.

Further, the Court notes that Defendants’ and Plaintiffs’ separate statements were difficult to decipher. It was difficult to determine how the parties’ separate statements were connected to the arguments in their motions/opposition.

As stated in Beltran:

As we mentioned, one of the purposes of the Separate Statement is “to permit the trial court to focus on whether [the material] facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at p. 1210, 35 Cal.Rptr.3d 411.) This can only be accomplished by both parties preparing **852 the Separate Statement according to the statute and Rules of Court and acting in good faith. The moving party must include only material statements of fact, not incidental and background facts. The opposing party must concede facts that are truly undisputed and only add facts that are material.

…

Trial courtsshould not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement – and an inappropriate separate statement includes an overly long document that includes multiple nonmaterial facts in violation of the Rules of Court. Courts should also not hesitate to disregard attempts to game the system by the opposing party claiming facts are “disputed” when the uncontroverted evidence clearly shows otherwise.

(Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 876; Fn. 5 states, “In certain instances, particularly before granting summary judgment or adjudication, an opportunity to correct deficiencies in the separate statement may be appropriate. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at pp. 1215-1216, 35 Cal.Rptr.3d 411; see Rush v. White Corp. (2017) 13 Cal.App.5th 1086, 1100, 221 Cal.Rptr.3d 240.).”)

Note: It appears as if Defendants are also arguing that there is no breach-of-contract cause of action because Plaintiffs cannot produce any signed agreement by the Defendants. In that case, it appears that Defendants’ statute of frauds argument is much stronger because they aren’t necessarily assuming what the contract is, but instead saying, there are no contracts out there (at all) that are signed by Defendants. See UMF 38 in the opposition separate statement; Plaintiffs’ “dispute” UMF 38, but it really isn’t clear if they actually have any evidence to dispute it.

As stated in Rader Co.:

With regard to the subscription requirement of the statute of frauds, “[i]f one of a series of papers which appear to have some relation to the same matter is signed by the party to be charged, this is enough, as all the papers are to be considered together as forming one contract or memorandum.” (Thompson v. Walsh (1946) 76 Cal.App.2d 188, 194, 172 P.2d 745.) Further, subscription does not require that the signature appear at the end of the instrument, nor that it be handwritten. The name of the party will satisfy the statutory requirement if it were intended as a signature, i.e., as an authentication, but not if it appears for some other purpose, as for mere identification. (1 Witkin, Summary of Cal.Law (8th ed. 1973) Contracts, §§ 211, 213, pp. 191–192.)

(Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 23.)

The Court will ask the parties to address this issue.

MOTION 2 (Res ID 8344)

Moving Party: Defendants, James Wu and USA Life Management Corporation (Defendants or Movants)

Responding Party: Plaintiffs, Eric Chen and Cindy Chou

Proof of service timely filed (CRC 3.1300(c)): Ok

Moving Papers filed on 2/23/2023: Notice of Motion; Proposed Order; Request for Judicial Notice; Separate Statement; Memorandum; Evidence and Declarations in Support

Moving Papers filed on 5/18/2023: Amended Notice of Motion and Motion; Amended Separate Statement

Opposition Papers filed on 4/10/2025: Opposition; Declaration of Pfrancez C. Quijano; Declaration of Eric Chen; Compendium of Evidence; Declaration of Jay Hibert; Proposed Order; Proof of Service;

Opposition Papers filed on 4/11/2025: Response to Amended Separate Statement

Reply Papers filed 4/18/2025: Reply

75/80 Days

Here, Defendants’ motion is timely.

RELIEF REQUESTED

“Defendants JAMES WU and USA LIFE MANAGEMENT CORPORATION (collectively "Brokers" and/or “Defendants”) will and hereby do move pursuant to California Code of Civil Procedure (“CCP”) §437c for summary judgment on First Cause of Action for Breach of Contract, the Second Cause of Action for Specific Performance, the Third Cause of Action for Breach of Fiduciary Duty, and the Fourth Causes of Action for Fraud, as alleged against them by Plaintiffs ERIC CHEN and CINDY CHOU (collectively “Plaintiffs”) in the operative Complaint filed by Plaintiffs on December 30, 2021, or alternatively for summary adjudication, and which Motion is made as to the following:

1. Issue No. 1: Brokers have no liability on Plaintiffs’ First Cause of Action for Breach of Written Contract because the Brokers did not own the Property, did not sign the Residential Purchase Agreement on behalf of Sellers as being accepted, and did not breach the Residential Purchase Agreement.

2. Issue No. 2: Brokers have no liability on Plaintiffs’ Second Cause of Action for Specific Performance because the Brokers did not own the Property, did not sign the Residential Purchase Agreement on behalf of Sellers as being accepted, and did not breach the Residential Purchase Agreement.

3. Issue No. 3: Brokers have no liability on Plaintiffs’ Third Cause of Action for Breach of Fiduciary Duty because the Brokers fulfilled all required duties owed to Owners and Plaintiffs while working in a dual agent capacity, and breached no fiduciary duties owed to Plaintiffs.

4. Issue No. 4: Brokers have no liability on Plaintiffs’ Fourth Cause of Action for Fraud because the Brokers made no fraudulent statements to Plaintiffs, and Plaintiffs cannot make any showing that they either justifiably relied on statements made by Brokers to their detriment or of having suffered any damages.

(Def. Mot. p. 2.)

ANALYSIS

Causes of Action

Moving Defendants’ (James Wu and USA Life Management Corporation) MSJ/MSA pertains to all four causes of action in the Complaint.

However, on 4/1/2025, Plaintiffs filed a request for dismissal against all Defendants with respect to the second cause of action and a request for dismissal as to Defendants James Wu and USA Life Management Corporation with respect to the first cause of action.

Therefore, Defendants’ MSJ/MSA is no longer applicable with respect to the first and second causes of action, and this MSJ/MSA only pertains to the third and fourth causes of action.

Notice

Defendants initially filed the notice of motion and supporting memorandum on 2/23/2023. Based on the 5/5/2023 Minute Order, Defendants were directed to file an amended separate statement.

On 5/18/2023 Defendants filed an amended separate statement.

Further, on 5/18/2023, Defendants filed a document titled, “AMENDED NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS JAMES WU AND USA LIFE MANAGEMENT CORPORATION; OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION.” This document appears to only be an amended notice of motion, and not a motion/memorandum itself.

Therefore, since there was no amended motion/memorandum filed with the amended notice that was filed on 5/18/2023, it appears as if Defendants intended that the original memorandum/motion filed on 2/23/2023 to be the motion/memorandum that is to accompany the amended notice filed on 5/18/2023.

If this is not the case, the parties should address this at the hearing.

TENTATIVE RULING MOTION 2

Defendants’ (James Wu and USA Life Management Corporation) MSJ/MSA pertains to the third cause of action for breach of fiduciary duty and the fourth cause of action for fraud.

The Court does not understand Defendants’ or Plaintiffs’ arguments with respect to these causes of action.

Because Defendants have the initial burden, the Court is inclined to deny Defendants’ MSJ/MSA with respect to the third and fourth causes of action because the Court cannot follow Defendants’ arguments, thus Defendants did not satisfy their initial burden.

The Court to hear argument.

Request for Judicial Notice

Defendants requested judicial notice of The Declaration of Plaintiff Eric Chen executed on May 11, 2022 and filed on the same day as part of and in support of Plaintiffs' Opposition to the Motion for an Order Expunging the Lis Pendens in this same matter.

The Court grants Defendants’ request for judicial notice; Plaintiffs did not oppose Defendants’ request for judicial notice.

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