Judge: Cherol J. Nellon, Case: 24STCV06929, Date: 2025-02-25 Tentative Ruling

Case Number: 24STCV06929    Hearing Date: February 25, 2025    Dept: 14

#7

Case Background

This is an action for breach of contract, breach of the covenant of good faith and fair dealing, interference with business relationship, intentional interference with prospective economic advantage, violation of California law, and preliminary injunction. Plaintiff alleges that it entered into a lease agreement with Online Edugo. In January 2024, Open Bank foreclosed on the property without giving Plaintiff the opportunity to purchase the building from the new owner at the bidding price. Open Bank changed the locks to the building and entered the school premises during school hours, disrupting Plaintiff’s business.

On March 20, 2024, Ivyi, Inc. (erroneously named Ivy, Inc.) (Ivyi) filed its Complaint against Open Bank, Min J. Kim, Jeff Kim, and Eric Jiang.

On May 7, 2024, Open Bank filed its Cross-Complaint against Ivyi, Inc., Ki Hyon Kim (A. Kim), and Hee Jung Kim (C. Kim).

On October 25, 2024, the Court sustained Open Bank’s demurrer in part and granted Open Bank’s motion to strike. The Court allowed Plaintiff’s bankruptcy Trustee leave to amend.

On January 23, 2025, Open Bank filed this motion to dismiss the Complaint.

Instant Pleading

Open Bank moves to dismiss Plaintiff’s Complaint with prejudice.

Decision

Open Bank’s motion to dismiss is GRANTED in part. Plaintiff’s Complaint is dismissed as to Open Bank only.

Discussion

Open Bank moves to dismiss Plaintiff’s Complaint on the grounds that Plaintiff’s Bankruptcy Trustee failed to amend the Complaint after the Court sustained Open Bank’s demurrer and granted its motion to strike.

The Court may dismiss a complaint as to a particular defendant if, after a demurrer or motion to strike to the complaint is sustained with leave to amend, the plaintiff fails to amend within the time allowed by the court and either party moves for dismissal. (Code Civ. Proc. section 581, subd. (f)(2) and (f)(4).)

Here, the Court sustained in part Open Bank’s demurrer and granted its motion to strike with 15 days leave to amend. Because Plaintiff is in Bankruptcy, its Bankruptcy Trustee alone had standing to continue litigating this matter. After the Court issued its October 2024 orders sustaining the demurrer and granting the motion to strike, Open Bank’s counsel served the Bankruptcy Trustee with notice of the order. (Crowell Decl., ¶3.) The Trustee did not file an amended complaint within 15 days after the Court’s order. Because the Trustee did not file an amended complaint in the time allotted, the motion to dismiss is GRANTED.

The Court notes that Open Bank requests dismissal with prejudice. However, Open Bank fails to explain or support this request. As the Court noted in its previous order, a debtor in bankruptcy regains standing to sue after a Trustee abandons a cause of action. Given that Plaintiff may now have standing to continue litigating its claims against Open Bank, the Court does not find that dismissal with prejudice is appropriate at this time.

Conclusion

Open Bank’s motion to dismiss is GRANTED in part. Plaintiff’s Complaint is dismissed as to Open Bank only.