Judge: David Sotelo, Case: 21STCV45077, Date: 2022-09-20 Tentative Ruling
Case Number: 21STCV45077 Hearing Date: September 20, 2022 Dept: 40
MOVING PARTY: 1. Defendants
Caroline Kyung Lee,
Freeman Wang, and
Your Home Sold Guaranteed Realty, Inc. (Demurrer) and
2. Motion to Strike Yun Plaintiffs’ First Amended Complaint); and
3.
Stephanie Yun (Demurrer to Lee, Wang, and YHSG Realty’s Cross-Complaint).
Plaintiffs Suk Young
Yun and Mying Ja Yun (the “Yun
Plaintiffs”) sue Caroline Kyung Lee (“Lee”) and Lee’s supervisor realtor
and realty brokerage group Freeman Wang and Your Home Sold Guaranteed Realty
(“YHSG Realty,” allegedly owned by Lee and Wang), alleging that—while acting as
realtor for the Yuns Plaintiffs in the
sale of a property, (“Subject
Property”)—Defendants engaged in
various actions amounting to Breaches of Fiduciary Duty, Conversion, Trespass to Real Property.
Defendants Lee,
Wang, and YHSG Realty bring a Cross-Complaint for Total and Partial Implied and
Equitable Indemnity, Comparative Fault, and Declaratory Relief against
Stephanie Yun (“Stephanie”), Plaintiffs’ daughter —on
the grounds that Stephane was also responsible for the harm suffered by Plaintiffs
while she acted as durable power of attorney for her parents during the sale of
the Subject Property.
Stephane brings her
own Cross-Complaint against Caroline K. Lee, based on distinct facts that, during
Lee’s representation of Stephanie’s parents in the sale, Lee wrongfully disclosed
Stephanie’s’ confidential information to the Yun’s—Stephanie’s parents.
After review, the
Court rules as follows:
Demurrer to Complaint: Lee, Wang, and YHSG Realty’s
Demurrer to the Yun Plaintiffs’ First Amended Complaint is SUSTAINED, in Part,
and OVERRULED, in Part:
(1) OVERRULED as to the Fourth and Fifth causes of action
for Conversion and Trespass to Real Property, with respect only to Defendants Lee
and Wang, because the FAC sufficiently pleads these claims against these
defendants;
(2) SUSTAINED, With Leave, as to Fourth and Fifth causes of
action for Conversion and Trespass to Real Property, with respect only to
Defendant YHSG Realty, Inc. because the FAC cannot allege that YHSG—a
brokerage company with no corporeal form—engaged in these torts against the Yun
Plaintiffs directly and because the FAC does not sufficiently aver evidentiary
facts pleading agency liability for YHSG Realty, as tied to Defendants Lee,
Wang, or Does 1-50;
(3) SUSTAINED, With Leave, as to Sixth cause of action for
Tort of Another, as to Lee, Wang, and YHSG Realty, because the FAC fails to
sufficiently plead facts amounting to this tort; and
(4) SUSTAINED, Without Leave, on the Seventh cause of action
for Civil Conspiracy, because Civil Conspiracy is not a cognizable legal claim.
Strike: Lee, Wang, and YHSG Realty’s Motion to Strike
the attorney’s fees—is GRANTED, With Leave, because the only grounds alleged
for attorney’s fees in the FAC—the cause of action for Tort of Another—did not
survive Demurrer and thus, no grounds are pleaded in the FAC to support
attorney’s fees, making them irrelevant and improper.
Demurrer to Cross-Complaint: Stephanie Yun’s Demurrer
to the Lee, et al. Cross-Complaint is SUSTAINED, in Full, With Leave, as to all
four causes of action in this Cross-Complaint—i.e., Total and Partial Implied
and Equitable Indemnity, Comparative Fault, and Declaratory Relief—because the
Lee, et al. Cross-Complaint fails to allege sufficient evidentiary averments to
state viable claims for these causes of action.
The Yun Complaint
This action was initiated by Suk Young Yun and Mying Ja Yun on December 10, 2021. The operative First
Amended Complaint alleges eight causes of action:
(1) Breach of
Fiduciary Duty;
(2) Fraud;
(3) Negligence;
(4) Conversion;
(5) Trespass to Real
Property;
(6) Tort of Another;
(7) Civil
Conspiracy; and
(8) Intentional
Infliction of Emotional Distress (“IIED”).
I.
Meet and Confer: The Court is satisfied that
Defendants satisfied the meet and confer requirement pursuant to Code of Civil
Procedure section 430.41, subdivision (a)(3)(A). (Demurrer & Strike Mot. to
FAC, Jones Decl., ¶¶ 1-4; cf. Opp’n to Demurrer to FAC, 4:15-24; Opp’n to
Demurrer to FAC, Yun Decl., ¶¶ 3-6.)
Sufficiency Standard on Demurrer: A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v.
Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd.
(e).) “To survive a [general sufficiency] demurrer, the complaint need only
allege facts sufficient to state a cause of action; each evidentiary fact that
might eventually form part of the plaintiff’s proof need not be alleged.” (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In
testing the sufficiency of the cause of action, the demurrer admits the truth
of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit
contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 713.)
FAC, Fourth Cause of Action, Conversion: OVERRULED,
as to Defendants Lee and Wang; SUSTAINED, With Leave, as to Defendant YHSG
Realty.
“Conversion is the wrongful exercise of dominion over the
property of another … [and its] elements … are: (1) the plaintiff’s ownership
or right to possession of the property; (2) the defendant’s conversion by a
wrongful act or disposition of property rights; and (3) damages.” (Lee v.
Hanley (2015) 61 Cal.4th 1225, 1240.)
Lee and Wang
The Fourth cause of action alleges conversion against
Defendants Lee, Wang, YHSG Realty, and Does 1-50 on the grounds that “[o]n or
about October 25, 2021, Defendants, including DOES 1-50, without Plaintiffs’
consent, intentionally and substantially interfered with Plaintiffs’ personal
properties by taking the personal properties and misappropriating funds for
their own personal use and enjoyment.” (FAC, ¶ 63; see FAC, ¶¶ 60-69.) The FAC
further ties liability to the Defendants by assigning them as the principals of
Does 1-50 as the agents who converted property from the Subject Property or, in
the alternative, assigning liability to Does 1-50 for any conversion
perpetrated by the Defendants as the Does’ agents. (FAC, ¶¶ 66-67.) Last, the
FAC pleads Lee and Wang are the owners of YHSG Realty. (FAC, ¶ 2.)
On Demurrer, Defendants Lee, Wang, and YHSG Realty argue
that the FAC’s fourth cause of action for Conversion fails as stated because: the
FAC pleads at paragraph 26 that “unknown assailants” burglarized the Subject
Property; the FAC fails to plead that the unknown assailants entered the
Property through the use of the key in the lock box left by Lee on the
Property; and the FAC fails to sufficiently plead a connection between the
unknown assailants and Defendants Lee, Wang, and YHSG Realty for the purposes
vicarious liability through a principal-agent relationship. (Demurrer to FAC,
3:18-4:19.)
On Opposition, the Yun Plaintiffs argue that paragraph 63
specifically alleges that “Defendants, including DOES 1-50, without Plaintiffs’
consent, intentionally and substantially interfered
with Plaintiffs’ personal properties by taking the personal
properties and misappropriating funds for their own personal use and
enjoyment.” (Opp’n to Demurrer to FAC, 5:22-27; see FAC, ¶ 63.) Without pin
cites, the Opposition also refers to the FAC’s allegations that Lee, Wang, and
YHSG maintained the lock box on the Property for third-party use and that Lee
allowed people to enter the home without supervision. (Opp’n to Demurrer to
FAC, 5:27-6:2; see FAC, ¶¶ 14-15, 17, 26.) The remainder of the Opposition
focuses on the argument that “Defendants are held liable under the theory of
negligence by their breach of their duties which directly and proximately
caused the act of conversion and trespass to be committed.” (See Opp’n to
Demurrer to FAC, 6:15-7:24.)
On Reply—and through new counsel—Defendants Lee, Wang, and
YHSG Realty expound on their arguments on Demurrer, arguing that the Yun
Plaintiffs fail to allege (1) an agency relationship between Doe Defendants
(the parties the Defendants claim are the unknown assailants) and Defendants
Lee, Wang, and YHSG Realty and (2) that the conversion was within any supposed
agency relationship between these Defendants and the unknown assailants who
burglarized the Subject Property. (Reply for Demurrer to FAC, 3:1-5:2 [making
same Reply argument for Conversion and Trespass to Real Property claims].)
The FAC is sufficiently pleaded as to the Conversion,
insofar as the claim relates to Defendants Lee and Wang, and even if the claim
could be difficult to support at summary adjudication, trial, or other
evidentiary and dispositive proceedings.
First, the FAC pleads ownership by the Yun Plaintiffs of
various “irreplaceable family jewels, cash, and personal possessions.” (FAC, ¶
61.)
Second, the FAC explicitly pleads that “[o]n or about
October 25, 2021, Defendants, including DOES 1-50, without Plaintiffs’ consent,
intentionally and substantially interfered with Plaintiffs’ personal properties
by taking the personal properties and misappropriating funds for their own personal
use and enjoyment.” (FAC, ¶ 63; see also Demurrer to FAC, 3:18-4:19 & Reply
for Demurrer to FAC, 3:1-5:2 [failing to address paragraph 63 while devoting
majority of arguments to agency theory of liability].) While such averments
could be conclusory without further evidentiary pleadings, the fourth cause of
action incorporates prior allegations made in the FAC (FAC, ¶ 60) and the FAC’s
prior allegation go into sufficient detail to plead Conversion, including
describing what occurred on October 25, 2021 (FAC, ¶ 26), the inferable use of
the lock box key by the Defendants and/or Does 1-50 to enter the Subject
Property on October 25, 2021 (FAC, ¶¶ 48-50), the (seemingly) ongoing LAPD
investigation into the burglary (FAC, ¶ 26), and apparent obfuscation of the
investigation by the Defendants (FAC, ¶¶ 27, 30), though the Court notes that the
FAC could more clearly plead manner of entry used by the burglars (see FAC, ¶¶
26, 48-50, 63).
(The Court briefly notes that although the FAC is
contradictory in pleading that the burglary and conversion of chattel were
committed by “unknown assailants” on one hand (FAC, ¶ 26), and by the Lee,
Wang, YHSG Realty, and Does 1-50 on the other (FAC, ¶ 63), the Court is
satisfied for the purposes of this Demurrer that the FAC’s fourth cause of
action pleads the Defendants, i.e., Lee, Wang, YHSG Realty, and Does 1-50, converted
the Yun Plaintiffs’ personal property (FAC, ¶ 63).)
Third, the FAC pleads these actions led to damages of at
least $100,000. (FAC, ¶¶ 62, 68.)
The Defendants’ Demurrer to the FAC’s Fourth cause of action
for Conversion is thus OVERRULED as to Defendants Lee and Wang.
YHSG Realty
Such allegations, however, do not reach YHSG Realty, Inc. because
YHSG is not a corporeal being who could have burglarized the Subject Property
on October 25, 2021 (FAC, ¶ 13 [YHSG is an incorporated “brokerage [company]”]).
YHSG itself therefore cannot itself, in a physical sense, have acted to convert
the Yuns’ personal belongings.
The Court thus turns to the FAC’s agency pleadings to
determine whether the FAC sufficiently pleads Conversion against YHSG Realty
through vicarious liability.
“[A] principal may be liable for the torts of an agent
committed in the scope of authority (Turner v. N.B. & M.R.R. Co.
(1868), 34 Cal. 594, 599), … [where such a] theory of vicarious liability is
[premised] not … on the fact that the principal is negligent if he fails to
supervise the agent,” but rather, imposing liability on the “principal … as a
matter of public policy, in order to promote safety for third persons [because]
… the principal is [in effect] holding out the agent as competent and fit to be
trusted, and thereby, in effect, warranting good conduct and fidelity of the
agent. (Bk. of Cal. v. W.U. Tel. Co. (1877), 52 Cal. 280, 288.)” (Noble
v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 663.)
An allegation of agency is itself an ultimate fact that need
not be further explained or supported by other factual allegations. (Skopp
v. Weaver (1976) 16 Cal.3d 432, 439; Kiseskey v. Carpenters’ Trust for
So. California (1983) 144 Cal.App.3d 222, 230 [“The general allegation
of¿agency¿is one of ultimate fact, sufficient against a¿demurrer”].) “But where
factual allegations are based on information and belief, the plaintiff must
allege ‘information that “lead[s] [the plaintiff] to believe that the
allegations are true.”’ [Citation.]” (Brown v. USA Taekwondo (2019) 40
Cal.App.5th 1077, 1106.) Further, there is an exception to the rule that
general allegations of agency are sufficient where specific allegations in the
pleadings show that no agency relationship exists. (Garton v. Title Ins.
& Trust Co. (1980) 106 Cal.App.3d 365, 376.)
Here, the FAC pleads that Does 1-50 are either agents or
principals of Lee, Wang, and YHSG Realty. (FAC, ¶¶ 66-67.) The FAC also pleads
Lee and Wang as “owners” of YHSG Realty. (FAC, ¶ 2.)
After review, the Court finds that the FAC does not sufficiently
plead agency principles to tie YHSG Realty to the alleged conversion, for which
reason the Court SUSTAINS the Demurrer to the FAC’s fourth cause of action as to
YHSG Realty.
First, the FAC is replete with references to the lock box on
the Property (FAC, ¶¶ 14-15, 17, 26-27, 30, 45, 48-50), and the FAC ties in Lee,
Wang, and Does 1-50 to the burglary and conversion of chattel from the Subject
Property on October 25, 2021 (FAC, ¶¶ 26, 63). The FAC’s pleadings also allow
for the inference that the burglary was achieved through use of the key in the
lock box left behind by Defendant Lee on the Property for the purposes of
giving the buyer access to the Subject Property before escrow closed. (FAC, ¶¶ 17,
48-50.) However, to the extent that these allegations plead agency, they
connote an agency relationship between Defendant Lee and Does 1-50 rather than
YHSG Realty and any other Defendant. Indeed, the allegations regarding the lock
box in the FAC are clear that Defendant Lee left the lock box on the Property. (See,
e.g., FAC, ¶¶ 14-15, 17.) Nothing directly connects the alleged burglary to
YHSG Realty other than the allegations that YHSG Realty’s owners and
unidentified agents were involved in the burglary and subsequent conversion of
the Yuns’ property. (FAC, ¶ 63.)
Second, even if Lee, Wang, or Does 1-50 were agents of YHSG
Realty on October 25, 2021, i.e., when the burglary of the Subject Property
occurred (FAC, ¶ 26)—something the Court has not found is pleaded in the FAC
either way—the FAC does not properly plead that any such conversion occurred
within the scope of Lee’s, Wang’s, or Does 1-50’s individual agency of YHSG
Realty. Otherwise stated, even though the FAC pleads that Lee, Wang, YHSG
Realty, and Does 1-50 are connected Defendants, involved in varying degrees in
the realtor business, the FAC does not provide a basis for inferring that a
tort committed by any one Defendant was committed within the scope of agency to
YHSG Realty. (See FAC, ¶¶ 12-31, 32-69.)
FAC, Fifth Cause of Action, Trespass to Real Property:
OVERRULED, as to Defendants Lee and Wang; SUSTAINED, With Leave, as to
Defendant YHSG Realty.
“‘Trespass is an unlawful interference with possession of
property.’ The elements of trespass are: (1) the plaintiff’s ownership or
control of the property; (2) the defendant’s intentional, reckless, or
negligent entry onto the property; (3) lack of permission for the entry or acts
in excess of permission; (4) harm; and (5) the defendant’s conduct was a
substantial factor in causing the harm. (See CACI No. 2000.)” (Ralphs
Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-62
[internal citation omitted.)
The FAC pleads Trespass to Real Property against Lee, Wang,
YHSG Realty, and Does 1-50 based on incorporated allegations related to the
conversion of chattel from the Subject Property on October 25, 2021 by Lee,
Wang, YHSG Realty, and/or Does 1-50. (FAC, ¶ 70-73; see FAC, ¶¶ 26, 63
[incorporated allegations from prior claims providing background allegations
for the trespass of real property that led to the conversion of the Yun
Plaintiffs’ personal property].)
On Demurrer, Lee, Wang, and YHSG Realty argue, in full, that
“[t]he FAC fails to allege facts to establish that Defendants entered the
Property without permission or in excess of permission” and “[l]ikewise … fails
to allege facts to show that Defendants permitted any other persons to enter
the Property without such permission.” (Demurrer to FAC, 4:20-28; see also Reply
for Demurrer to FAC, 3:1-5:2 [making same Reply argument for Conversion and
Trespass to Real Property claims].)
Here, the Court has found that the FAC pleads sufficient
facts to tie Defendants Lee and Wang—in addition to Does 1-50—to the conversion
of the Yun’s chattel from the Subject Property. (See Conversion discussion
supra re: Lee and Wang; see also FAC, ¶¶ 48-50, 63.)
The Court concludes that these allegations similarly support
a finding that the FAC sufficiently avers that Lee, Wang, and Does 1-50
trespassed onto the Subject Property on October 25, 2021 by using the lock box
key that Lee had left behind on the Property (FAC, ¶¶ 48-50, 63), at a time
when the Yun Plaintiffs owned the house (FAC, ¶¶ 12 [home owned by Yuns as of
at least February 7, 2021], 25 [Property sold on October 26, 2021, one day
after burglary]), without the permission of the Yuns (FAC, ¶ 17 [“…
understanding that the Yuns would be informed of any visits in advance”]) under
circumstances where the Yuns clearly could have not known the house would be
visited and ultimately burglarized on October 25, 2021 (see FAC, ¶ 26),
resulting in at least $100,000 in damages due to lost valuable possessions
worth that amount (FAC, ¶¶ 62, 68), with the Defendants being the only factor
involved in causing harm to the Yuns (FAC, ¶ 63).
The Demurrer to the FAC’s Sixth cause of action is thus OVERRULED
as to Defendants Lee and Wang.
However, the Demurrer is SUSTAINED, With Leave, as to
Defendant YHSG Realty because YHSG Realty is a company that cannot itself
trespass property in a corporeal sense (FAC, ¶ 13) and because the Court adopts
its Conversion discussion to support a finding that the FAC does not adequately
plead that any Defendant—Lee, Wang, or Does 1-50—was acting within any scope of
agency for YHSG Realty on October 25, 2021. (See Conversion discussion supra
re: YHSG Realty.)
FAC, Sixth Cause of Action, Tort of Another: SUSTAINED,
With Leave.
“The tort of another doctrine holds that ‘[a] person who
through the tort of another has been required to act in the protection of his
interests by bringing or defending an action against a third person is entitled
to recover compensation for the reasonably necessary loss of time, attorney’s
fees, and other expenditures thereby suffered or incurred.’” (Mega RV
Corporation v. HWH Corporation (2014) 225 Cal.App.4th 1318, 1337 [quoting Prentice
v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620].) “The
tort of another doctrine is not really an exception to the American rule, but
simply ‘an application of the usual measure of tort damages.’” (Ibid. [quoting
Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310].) “The tort of another
doctrine does not allow a party to recover the fees and costs involved in
litigating directly with a negligent defendant.” (Gorman v. Tassajara
Development Corp. (2009) 178 Cal.App.4th 44, 80.) This doctrine “does not
apply to the situation where a plaintiff has been damaged by the joint
negligence of codefendants.” (Ibid. [citing Vacco Industries, Inc. v.
Van Den Berg (1992) 5 Cal.App.4th 34, 57).) “[A] party seeking to recover
attorney fees and costs as tort damages ordinarily should plead and prove them
to the fact-finder ….” (Id. at 79.)
The FAC pleads Tort of Another against Lee, Wang, YHSG
Realty, and Does 1-50 on the grounds that “[t]he tortious conduct of
Defendants, Does 1-50, and each of all of them, have forced Plaintiffs to incur
the expense of pursuing this action against Defendants, Does 1-50, and each of
them.” (FAC, ¶ 75; see FAC, ¶¶ 74-77.)
After consideration—and as argued by Defendants Lee, Wang,
and YHSG Realty (Demurrer to FAC, 5:1-21; Reply for Demurrer to FAC, 5:4-6:13)—the
Court finds that the FAC fails to plead grounds on which the Yun Plaintiffs can
base a Tort of Another claim against these Defendants and Does 1-50 because the
FAC’s pleadings do not establish circumstances in which the Yun Plaintiffs
brought this action to protect themselves or somehow ameliorate the tort of
another person (not one of the Defendants) against the Defendants (Lee, Wang,
YHSG Realty, and Does 1-50).
Nor does anything in the Yun Plaintiffs’ Opposition provide
grounds for this Court to change its conclusion. (See Opp’n to Demurrer to FAC,
7:26-8:12, 8:13-9:10.) To provide a contextual example, if the FAC had pleaded that
the “irreplaceable family jewels, cash, and personal possessions” stolen from
the Subject Property (FAC, ¶ 26) instead belonged to some other person—e.g., a
family friend not one of the Defendants or the Yun Plaintiffs—and that such
personal belongings were being held at the Subject Property in the trust of the
Yun Plaintiffs, then the FAC could perhaps have pleaded a proper claim of Tort
of Another against Lee, Wang, and Does 1-50 on the grounds that the Yun
Plaintiffs are now at risk of damages to their family friend, who could seek
satisfaction for these losses from the Yun Plaintiffs (even if the same claim could
not, as pleaded, lie against YHSG Realty due to the FAC’s failure to properly
plead agency tying YHSG to the trespass onto and conversion from the Subject
Property). However, these are not the circumstances pleaded in the FAC; rather,
the FAC pleads that the stolen personal property belonged to Yun Plaintiffs and
all harm was incurred by the Yun Plaintiffs. (See, e.g., FAC, ¶ 26 [“$100,000
in losses were incurred by the Yuns, including irreplaceable family jewels,
cash, and personal possessions”].)
The Demurrer is thus SUSTAINED to the FAC’s Sixth cause of
action, but With Leave, in the event the facts underlying this cause of action
merit amendment of the claim and inclusion in a subsequent pleading.
FAC, Seventh Cause of Action, Civil Conspiracy: SUSTAINED,
Without Leave.
The FAC’s Seventh cause of action pleads Civil Conspiracy
against Lee, Wang, YHSG Realty, and Does 1-50 on the grounds that “all
Defendants … played active roles in the acts described above with the actual
intent to assist Defendants and/or nonparties, in the conversion of Plaintiffs’
properties” and “trespass of real property.” (FAC, ¶¶ 79, 81.)
Lee, Wang, and YHSG Realty demur to the FAC’s seventh cause
of action on the grounds that “[c]ivil conspiracy is not a cause of action”
pursuant to Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7
Cal.4th 503, 510-11. The Court agrees.
“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. [Citation.] By participation in a civil
conspiracy, a coconspirator effectively adopts as his or her own the torts of
other coconspirators within the ambit of the conspiracy. [Citation.] In this
way, a coconspirator incurs tort liability co-equal with the immediate
tortfeasors.” (City of Industry v. City of Fillmore (2011) 198
Cal.App.4th 191, 211-12 [quoting Applied Equipment Corp. v. Litton Saudi
Arabia Ltd. (1994) 7 Cal.4th 503, 510-11] & 212 [“constru[ing] the
fifth count for fraud and the tenth count for conspiracy together as a single
count for fraud”].)
Here, the Court takes the Second Appellate District’s lead
and reads the FAC’s fourth cause of action for Conversion and fifth cause of
action for Trespass of Real Property as being supplemented by the allegations
made by the FAC’s seventh cause of action for Civil Conspiracy because the Yun
Plaintiffs simply seek to use conspiracy principles to assign liability to each
Defendant for the conversion and trespass to real property committed by each of
the other Defendants (i.e., Lee, Wang, YHSG Realty, or Does 1-50). (See FAC, ¶¶
79, 81; see also City of Industry, supra, 198 Cal.App.4th at p. 212.)
II.
Meet and Confer: The Court finds that Defendants Lee,
Wang, and YHSG Realty have satisfied the meet and confer requirement pursuant
to Code of Civil Procedure section 435.5, subdivision (a)(3)(A).¿ (Demurrer
& Strike Mot., Jones Decl., ¶¶ 1-4; cf. Opp’n to Strike Mot., 4:5-14; Opp’n
to Strike Mot., Yun Decl., ¶¶ 3-6.)
Legal Standard: Any party, within the time allowed to
respond to a pleading may serve and file a notice of motion to strike the whole
or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of
Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in
its discretion and upon terms it deems proper: (1) strike out any irrelevant,
false, or improper matter inserted in any pleading; or (2) strike out all or
any part of any pleading not drawn or filed in conformity with the laws of
California, a court rule, or an order of the court. (Code Civ. Proc. § 436,
subd. (a)-(b); Stafford v. Shultz¿(1954) 42 Cal.2d 767, 782 [“Matter in
a pleading which is not essential to the claim is surplusage; probative facts
are surplusage and may be stricken out or disregarded”].) However, Courts have
noted that a motion to strike should be applied cautiously and sparingly
because it is used to strike substantive defects. (PH II, Inc. v. Superior
Court (1995) 33 Cal.App.4th 1680, 1682-83.) A party cannot use a motion to
strike as a “line-item veto.” (Id. at p. 1683 [“We emphasize that such
use of the motion to strike should be cautious and paring” and “have no
intention of creating a procedure ‘line-item veto’ for the civil defendant”].)
For the purposes of a motion to strike pursuant to Sections
435 to 437 of the Code of Civil Procedure, the term “pleading” means a
demurrer, answer, complaint, or cross-complaint. (Code Civ. Proc., § 435, subd.
(a).) An immaterial allegation or irrelevant matter in a pleading entails (1)
an allegation that is not essential to the statement of a claim or defense, (2)
an allegation that is neither pertinent to nor supported by an otherwise
sufficient claim or defense, or (3) a demand for judgment requesting relief not
supported by the allegations of the complaint or cross-complaint. (Code Civ.
Proc.,¿§¿431.10, subds. (b)(1)-(3).)
Attorney’s Fees: GRANTED, With Leave.
On Motion to Strike, Defendants Lee, Wang, and YHSG Realty seek
a Court order striking the attorney’s fees request from the FAC’s
prayer—specifically removing “reasonable attorney’s fees and” from Prayer for
Relief, page 17, line 24—on the grounds that this prayer is “improper and
should be stricken because the FAC does not allege facts to establish
Plaintiffs’ entitlement to a fee award.” (Strike Mot., 3:2-3; see also Strike
Mot., Notice, 1:26-2:6; Strike Mot., 3:2-3:26.)
III.
Meet and Confer: The Court is satisfied that the
Cross-Complainant Stephanie Yun (“Stephanie”) satisfied the meet and confer
requirement pursuant to Code of Civil Procedure section 430.41, subdivision
(a)(3)(A). (Demurrer to Lee, et al. Cross-Complaint, Yun Decl., ¶¶ 7-12.)
Uncertainty Standard on Demurrer: A demurrer to a
pleading lies where the pleading is uncertain, ambiguous, or unintelligible. (Code
Civ. Proc. § 430.10, subd. (f).) “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 a result, a
special demurrer for uncertainty is not intended to reach failure to incorporate
sufficient facts in the pleading but is directed only at uncertainty existing
in the allegations already made. (People v. Taliaferro (1957) 149
Cal.App.2d 822, 825.) Where complaint is sufficient to state a cause of action
and to apprise defendant of issues he is to meet, it is not properly subject to
a special demurrer for uncertainty. (See ibid.; see also Gressley v.
Williams (1961) 193 Cal.App.2d 636, 643 [“[a] special demurrer [for
uncertainty] should be overruled where the allegations of the complaint are
sufficiently clear to apprise the defendant of the issues which he is to
meet”].)
Cross-Complaint, First and Second Causes of Action, Total
and Partial Implied and Equitable Indemnity: SUSTAINED, With Leave.
“In general, indemnity refers to ‘the obligation resting on
one party to make good a loss or damage another party has incurred.’
[Citation.]” (Prince v. Pacifica Gas & Electric Co. (2009) 45
Cal.4th 1151, 1157.) California courts recognize two forms of indemnity: express
indemnity and equitable indemnity. (Ibid. [“[a]lthough the foregoing
categories of indemnity were once regarded as distinct, we now recognize there
are only two basic types of indemnity: express indemnity and equitable
indemnity”].) Equitable indemnity encompasses claims of implied indemnity. (Ibid.
[“implied contractual indemnity is now viewed simply as ‘a form of equitable
indemnity’”].)
In order to properly plead a cause of action for equitable
and implied indemnity, a party must sufficiently allege (1) that both the
indemnitor and the indemnitee have a joint legal obligation to another for
damages (Prince, supra, 45 Cal.4th at pp. 1158 [unlike express
indemnity, equitable and implied indemnity are “‘premised on a joint legal
obligation to another for damages’”]; see also Western Steamship Lines, Inc.
v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 114), (2) a showing
of fault on the part of the indemnitor, and (3) resulting damages to the
indemnitee for which the indemnitor is equitably responsible (C.W. How
Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700).
The Cross-Complaint’s total and partial indemnity claims are
pleaded generally, without evidentiary averments. (Lee, et al. Cross-Complaint,
¶¶ 13-16 [total indemnity], 17-20 [partial indemnity].) However, the claims
incorporate previously pleaded facts, including that Stephanie’s September 9,
2021 durable power of attorney imposed on her a fiduciary duty to her parents and
that Stephanie breached this duty by, among other things, “failing to explain
the relevant transactions in Plaintiffs’ native language; failing to manage
Plaintiffs’ affairs in a due, appropriate, and legally sufficient manner; and
failing to prevent any security risks that the lock box at the [Subject
Property] based on [Ms.] Yun’s superior knowledge of the contents of that house.”
(Lee, et al. Cross-Complaint, ¶¶ 10-11, 13 [incorporation], 17 [incorporation].)
On Demurrer and in relevant part, Stephanie—representing herself—argues
that the sole basis for these indemnity claims involves conclusory allegations
of fact with in sufficient evidentiary averments to support these causes of
action. (See Demurrer to Lee, et al. Cross-Complaint, 8:25-9:8.)
On Opposition—and through counsel different than counsel
that drafted the Lee, et al. Cross-Complaint—Lee, Wang, and YHSG Realty argue
that paragraphs 9-10, 12, 14, 15, 18, and 19-20 sufficiently plead total (“full”)
or partial implied and equitable indemnity (Opp’n to Demurrer to Lee, et al.
Cross-Complaint, 5:14-28) and provide legal reasoning to support their
arguments (Opp’n to Demurrer to Lee, et al. Cross-Complaint, 6:1-8:6).
On Reply, Stephanie repeats her argument that the Cross-Complaint’s
conclusory indemnity pleadings fail in face of her sufficiency Demurrer. (Reply
for Demurrer to Lee, et al. Cross-Complaint, 3:6-5:14.)
After review, the Court agrees with Stephanie. To illustrate,
Paragraph 11 of the Lee, et al. Cross-Complaint—describing how Ms. Yun breached
fiduciary duties to her parents, the Yun Plaintiffs—is full of ultimate fact
pleading with no evidentiary averments to support such conclusions of fact.
(Lee, et al. Cross-Complaint, ¶ 11 [“failing to explain the relevant
transactions in Plaintiffs’ native language; failing to manage Plaintiffs’
affairs in a due, appropriate, and legally sufficient manner; and failing to
prevent any security risks that the lock box at the [Subject Property] based on
[Ms.] Yun’s superior knowledge of the contents of that house”—i.e., alleged
fault on part of indemnitor].) The remaining factual background pleaded in the
Lee, et al. Cross-Complaint fare no better. (Lee, et al. Cross-Complaint, ¶¶ 10
[joint legal obligation], 12 [damages].)
Third Cause of Action, Comparative Fault: SUSTAINED,
With Leave.
“The comparative fault doctrine ‘is designed to permit the
trier of fact to consider all relevant criteria in apportioning liability. The
doctrine “is a flexible, commonsense concept, under which a jury properly may
consider and evaluate the relative responsibility of various parties for an
injury (whether their responsibility for the injury rests on negligence, strict
liability, or other theories of responsibility), to arrive at an “equitable
apportionment or allocation of loss.’ [Citation.]” (Pfeifer v. John Crane,
Inc. (2013) 220 Cal.App.4th 1270, 1285.)
On Demurrer, Stephanie argues that the Comparative Fault
claim is not a cognizable legal claim upon which relief can be granted and
points to an admission by counsel for Lee, Wang, and YHSG admitting the same.
(Demurrer to Lee, et al. Cross-Complaint, 13:7-17.)
Under these circumstances—and although facts alleged, not a
label, determine the nature of a cause of action (see, e.g., Saunders v.
Cariss (1990) 224 Cal.App.3d 905, 908)—the Court finds sufficient grounds
exists to SUSTAIN Stephanie’s Demurrer to the Third cause of action.
The Court GRANTS LEAVE TO AMEND the Comparative Fault claim
into an Equitable Contribution claim in any amended pleading filed because of
this Order.
Cross-Complaint, Fourth Cause of Action, Declaratory
Relief: SUSTAINED, With Leave.
“To qualify for declaratory relief, [a party] would have to
demonstrate its action presented two essential elements: ‘(1) a proper subject
of declaratory relief, and (2) an actual controversy involving justiciable
questions relating to [the party’s] rights or obligations.’” (Jolley v.
Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909 [quoting Wilson
& Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559,
1582].)
The Cross-Complaint alleges Declaratory Relief based on
controversies existing between Lee, Wang, and YHSG Realty and Stephanie Yun as
to whether Lee, Wang, and YHSG Realty are entitled to indemnification from Stephanie
for liability imposed on these defendants based on allegations made against
them by the Yun Plaintiffs. (Lee, et al. Cross-Complaint, ¶¶ 24-28.)
On Demurrer and in relevant part, Stephanie argues that the
only bases for Declaratory Relief—the Lee, et al. Cross-Complaint’s
Indemnification and Comparative Fault claims—fail on Demurrer, for which
reason, the Declaratory Relief claim also fails. (Demurrer to Lee, et al.
Cross-Complaint, 13:18-21.)
On Opposition, Lee, Wang, and YHSG Realty argue that the
Indemnification and Comparative Fault claims should survive Demurrer and
support the Declaratory Relief claim. (Opp’n to Demurrer to Lee, et al.
Cross-Complaint, 9:13-27.)
Because the Court has sustained Stephanie’s Demurrer to the
Indemnification and Comparative Fault claims stated in the Lee, et al.
Cross-Complaint (see discussions supra), the Court likewise SUSTAINS Stephanie’s
Demurrer to the Declaratory Relief claim.
1.
Defendants’ Demurrer is SUSTAINED, in Part, and
OVERRULED, in Part, as follows:
OVERRULED as to the FAC’s Fourth and Fifth causes of
action for Conversion and Trespass to Real Property, with respect only to
Defendants Lee and Wang, because the FAC sufficiently pleads these claims
against these defendants;
SUSTAINED, With Leave, as to the FAC’s Fourth and Fifth
causes of action for Conversion and Trespass to Real Property, with respect
only to Defendant YHSG Realty, Inc. because the FAC cannot allege that
YHSG—a brokerage company with no corporeal form—engaged in these torts against
the Yun Plaintiffs directly and because the FAC does not sufficiently aver
evidentiary facts pleading agency liability for YHSG Realty, as tied to
Defendants Lee, Wang, or Does 1-50;
SUSTAINED, With Leave, as to the FAC’s Sixth cause of
action for Tort of Another, as to Lee, Wang, and YHSG Realty, because the
FAC fails to sufficiently plead facts amounting to this tort; and
SUSTAINED, Without Leave, as to the FAC’s Seventh cause
of action for Civil Conspiracy, because Civil Conspiracy is not a
cognizable legal claim.
2.
Defendants Motion to Strike attorney’s fees is
GRANTED, With Leave, because the only
grounds alleged for attorney’s fees in the FAC—the cause of
action for Tort of Another—did not survive Demurrer and thus, no grounds are
pleaded in the FAC to support attorney’s fees, making them irrelevant and
improper.
3.
Cross-Complainant Stephanie Yun’s Demurrer to the Cross-Complaint
is
SUSTAINED, in Full, With Leave, as to all four causes
of action in this Cross-Complaint—i.e., Total and Partial Implied and Equitable
Indemnity, Comparative Fault, and Declaratory Relief—because the Lee, et al.
Cross-Complaint fails to allege sufficient evidentiary averments to state viable
claims for these causes of action.
21 DAYS LEAVE TO AMEND is granted for amendment of these two
pleadings.