Judge: Christian R. Gullon, Case: 19PSCV00397, Date: 2023-09-13 Tentative Ruling

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Case Number: 19PSCV00397    Hearing Date: December 6, 2023    Dept: O

Tentative Ruling

 

Plaintiff Mark Liu’s Application for Default Judgment is DENIED with prejudice.

 

Background   

 

Plaintiff Mark Liu (“Plaintiff”) alleges as follows: On or about March 2019, Plaintiff and Defendant Xuefan Liu (“X. Liu”) entered into an oral contract, wherein Defendant X. Liu agreed to wire funds that Plaintiff provided to Defendant to an account at JP Morgan Chase Bank, but Defendant failed to do so.

 

On May 20, 2019, Plaintiff filed a First Amended Complaint, asserting causes of action against X. Liu, Shi Qiang Zhang (“S. Zhang”), Lina Zhang (“L. Zhang”) and Does 1-10 for:

 

1.     Breach of Contract

2.     Fraud

3.     Conversion

4.     Common Counts (i.e., Money Had and Received)

 

On November 9, 2019, X. Liu’s and S. Zhang’s defaults were entered. On July 23, 2020, Plaintiff dismissed L. Zhang, without prejudice.

 

On July 23, 2020, Plaintiff dismissed Defendant L. Zhang. Thus, remaining defendants are X. Liu and S. Zhang.

 

On September 1, 2020, the court denied without prejudice Plaintiff’s application for default judgment.

 

On March 15, 2022, Plaintiff re-filed its application for default judgment, which the court again denied.

 

On March 21, 2023, Plaintiff filed its third application for entry of default judgment, which the court on 9/13/23 denied.

On November 15, 2023, Plaintiff filed a supplemental declaration.

 

Discussion

 

On multiple occasions, the court has noted that there are no allegations as to S. Zhang. In its supplemental declaration, Plaintiff argues that this court is confused. (Supp. Motion., p. 2: 9-10 [“Is that the confusion?”].)

 

This court is not confused.

 

The mere fact that S. Zhang is a named defendant does not render the FAC well pled, which is a necessary condition for purposes of a default judgment. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 272-286.)

 

Turning to the 2nd COA for fraud and 3rd COA for Conversion, while S. Zhang is a named Defendant, the COAs are not well-pled. It is well-established that fraud must be pleaded with specificity. People ex rel. Harris v. Rizzo, 214 Cal. App. 4th 921, 154 Cal. Rptr. 3d 443 (2d Dist. 2013); Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC, 162 Cal. App. 4th 858, 76 Cal. Rptr. 3d 325 (6th Dist. 2008); Philipson & Simon v. Gulsvig, 154 Cal. App. 4th 347, 64 Cal. Rptr. 3d 504 (4th Dist. 2007), as modified on denial of reh'g, (Aug. 29, 2007). In particular, fraud allegations must be pled with more detail than other causes of action.(Apollo Capital Fund, LLC v. Roth Capital Partners, LLC, 158 Cal. App. 4th 226, 70 Cal. Rptr. 3d 199 (2d Dist. 2007).) Thus, each element in a cause of action for fraud must be factually and specifically alleged in a proper manner.  General and conclusory allegations do not suffice, and the policy of liberal construction of the pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect. (Cadlo v. Owens-Illinois, Inc., 125 Cal. App. 4th 513, 23 Cal. Rptr. 3d 1 (1st Dist. 2004), as modified, (Dec. 30, 2004); Murphy v. BDO Seidman, LLP, 113 Cal. App. 4th 687, 6 Cal. Rptr. 3d 770 (2d Dist. 2003), as modified on denial of reh'g, (Dec. 24, 2003).

 

Here, Plaintiff alleges that “Defendants represented to Plaintiff that if Plaintiff provided funds to Defendants, Defendants would have all of the funds wired (except for a fee) to the bank account designated by Plaintiff.” This conclusive allegation does not meet the particularity requirement. When did S. Zhang make the promise? How did S. Zhang make the promise? Where did S. Zhang make the promise? Did all the Defendants at one time, in one sentence, and in one utterance make the promise to Plaintiff about making the money transfer?

 

Plaintiff maintains that “it would be appreciated if the Court would clarify what it wants because, again, the undersigned does not understand the Court's comment because there are allegations against S. Zhang.” (Supp. Motion p. 3:6-7.) It is not the court’s responsibility to create Plaintiff’s case. The court directs Plaintiff to pleading standards. The application is denied with prejudice; should Plaintiff seek judgment against S. Zhang, it is to file a second amended complaint.

 

As for Chan’s declaration, Plaintiff concedes its error, but then points the court to the declaration of another individual who provides summaries of the transactions. (See DECLARATION OF SUCH EN LUO IN SUPPORT OF REQUEST FOR ENTRY OF DEFAULT JUDGMENT filed on 3/21/23.) Luo’s declaration is inadmissible as Luo is merely a law school graduate who is fluent in Mandarin; she is not an expert/certified translator to provide summaries.

 

Conclusion

 

Based on the foregoing, Plaintiff’s application for default judgment is denied with prejudice.