Judge: Curtis A. Kin, Case: 21STCV40099, Date: 2023-01-26 Tentative Ruling
Case Number: 21STCV40099 Hearing Date: January 26, 2023 Dept: 72
DEMURRER TO CROSS-COMPLAINT
Date: 1/26/23
(9:30 AM)
Case: James Cheung v. Berkeley
Research Group, LLC et al. (21STCV40099)
TENTATIVE
RULING:
Cross-defendant James Cheung’s Demurrer to Cross-Complaint
is OVERRULED.
A.
REQUIREMENT TO MEET AND CONFER
As a preliminary matter, cross-defendant James Cheung did
not file any declaration indicating an attempt to meet and confer with
cross-complainant Roger Han before filing the demurrer, as required by CCP §
430.41(a)(3). Even though defendant is self-represented, “mere
self-representation is not a ground for exceptionally lenient treatment. Except
when a particular rule provides otherwise, the rules of civil procedure must
apply equally to parties represented by counsel and those who forgo attorney
representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–85.)
Cross-defendant Cheung is admonished to comply with the meet
and confer requirements of the Code of Civil Procedure. Notwithstanding this
admonition, “[a] determination by the court that the meet and confer process
was insufficient shall not be grounds to overrule or sustain a demurrer.” (CCP
§ 430.41(a)(4).) The Court rules on the merits of the demurrer.
B.
FIRST CAUSE OF ACTION – FRAUD: INTENTIONAL
MISREPRESENTATION
Cross-defendant Cheung demurs to the first cause of action
for fraud on the ground that the intentional misrepresentations alleged in the
Cross-Complaint were made by cross-defendant Eric Kwon.
Cross-complainant’s basis for asserting liability against
Cheung for fraud is conspiracy. (XC ¶ 17.) “Conspiracy is not a cause of
action, but 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.”
(Applied Equipment Corp. v. Litton
Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-11.) “To support a conspiracy
claim, a plaintiff must allege the following elements: (1) the formation and
operation of the conspiracy, (2) wrongful conduct in furtherance of the
conspiracy, and (3) damages arising from the wrongful conduct.” (AREI II
Cases (2013) 216 Cal.App.4th 1004, 1022, internal quotations omitted.)
“While a complaint must contain more than a bare allegation the defendants
conspired, a complaint is sufficient if it apprises the defendant of the
character and type of facts and circumstances upon which she was relying to
establish the conspiracy.” (Id., internal quotations omitted.)
Here, cross-complainant alleges that Cheung conspired with
Kwon to induce cross-complainant to sign the purchase agreement for the subject
properties. (XC ¶¶ 17, 18.) The purpose of the conspiracy was to cause the
purchase agreement to be cancelled and assert a frivolous claim against
cross-complainant for the excess $2 million. (XC ¶¶ 22, 29.) Cheung furthered
the conspiracy by assuring cross-complainant that Kwon’s representations that
Kwon would handle the licensing, permits, and compliance with the municipal
government agencies and provide due diligence documents necessary for Roger Han
to obtain funding for the purchase, among other representations, were true. (XC
¶ 15(1-3).) As a result of Kwon’s misrepresentations and Cheung’s furtherance
of the conspiracy, cross-complainant suffered damages. (XC ¶¶ 24, 31.) Cheung’s
participation in the conspiracy is sufficiently alleged.
With respect to Kwon’s
alleged misrepresentations, they are pled with sufficient particularity.
Cross-complainant alleges that, on February 7, 2021, Kwon represented he would
use his experience as an architect and connection with the City of Los Angeles
to obtain the required permits and licenses and provide due diligence documents
necessary for cross-complainant to obtain funding for the purchase. (XC ¶
15(1-3).) These allegations are adequately specific. Any perceived ambiguity
can be clarified in discovery. (Charpentier v. Los
Angeles Rams Football Co. (1999)
75 Cal.App.4th 301, 312 [“Defendant
cannot persuasively complain it misunderstands the fraud claim made here. If,
as it complains, it is confused as to who made the representations and by what
means, a little discovery should clear that up”].)
The demurrer to the first cause of action is OVERRULED.
C.
SECOND CAUSE OF ACTION – NEGLIGENT
MISREPRESENTATION
Cheung maintains that the second cause of action is not pled
with sufficient particularity. (See Cadlo v. Owens-Illinois, Inc. (2004)
125 Cal.App.4th 513, 519 [like intentional misrepresentation, negligent
misrepresentation must be pled with specificity].) This assertion is unavailing
for the same reasons discussed with respect to the first cause of action based
on intentional misrepresentation.
The demurrer to the second cause of action is OVERRULED.
D.
THIRD CAUSE OF ACTION – BREACH OF ORAL AGREEMENT
#1
Cheung demurs to the third cause of action on the ground
that it fails to state a claim upon which relief can be granted. However, the
third cause of action is asserted against cross-defendant Kwon. (XC at
10:19-21.) Accordingly, Cheung has no standing upon which to demur to the third
cause of action.
The demurrer to the third cause of action is OVERRULED.
E.
FOURTH CAUSE OF ACTION – BREACH OF ORAL
AGREEMENT #2
The elements of a breach of contract cause of action are: (1)
plaintiff and defendant entered into a contract; (2) plaintiff did all, or
substantially all, of the things required under the contract; (3) all
conditions required for defendant’s performance occurred; (4) defendant failed
to perform under the contract; (5) plaintiff was harmed; and (6) defendant’s
breach was a substantial factor in causing plaintiff harm. (CACI 303.)
Cross-complainant alleges that, in June 2021,
cross-complainant and Cheung agreed to extend the closing of the sale until
July 26, 2021 while Kwon attempted to obtain permits and licenses and prepared
due diligence documents. (XC ¶ 46.) Cross-complainant fully performed under the
agreement. (XC ¶ 47.) Cheung allegedly breached this agreement by unilaterally
cancelling the purchase agreement. (XC ¶¶ 46, 48.) Cross-complainant was harmed
due to Cheung’s breach. (XC ¶ 49.) The breach of oral agreement cause of action
is sufficiently stated.
Cheung maintains that he was merely following a remedy
provided in the purchase agreement and that communications ceased after June
27, 2021. Cheung does not cite any authority indicating that a demurrer can be
sustained on these grounds. Arguments without any legal authority are without
merit. (Kensington University v. Council for Private Postsecondary etc.
Education (1997) 54 Cal.App.4th 27, 42-43.)
The demurrer to the fourth cause of action is OVERRULED.
F.
UNCERTAINTY
Cheung also argues that the demurrer should be sustained for
uncertainty. “A demurrer for uncertainty is strictly construed, even where a
complaint is in some respects uncertain, because ambiguities can be clarified
under modern discovery procedures.” (Khoury v. Maly's of California, Inc.
(1993) 14 Cal.App.4th 612, 616.)
As discussed above, the Cross-Complaint is clearly based on
cross-complainant’s agreement to purchase the subject properties based on
misrepresentations from Kwon and assurances from Cheung. Cross-complainant
alleges that Kwon and Cheung induced him to enter into the purchase agreement,
only to cause the purchase agreement to be cancelled and assert a frivolous
claim against him.
The demurrer based on uncertainty is OVERRULED.
Ten (10) days to answer.