Judge: Joel L. Lofton, Case: 19STCV11399, Date: 2023-06-20 Tentative Ruling

Case Number: 19STCV11399    Hearing Date: June 20, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      June 20, 2023                                      TRIAL DATE: July 25, 2023

CASE:                         SHIN P. YANG, ESQ., individually; SHIN P. YANG, ESQ. dba LAW OFFICES OF SHIN P. YANG v. KAZN AM 1300, a business entity of unknown form; MULTICULTURAL RADIO BROADCASTING, INC., a foreign corporation; MULTICULTURAL RADIO BROADCASTING LICENSEE, LLC, a foreign limited liability corporation; ARTHUR LIU, an individual and DOES 1 through 200, inclusive. 

CASE NO.:                 19STCV11399

MOTION FOR SUMMARY JUDGMENT

MOTION FOR LEAVE TO AMEND

MOVING PARTY:               Motion for summary judgment filed by Defendants Kazn AM 1300, Arthur Liu, Yvonne Liu (“Moving Parties”)

                                                Motion for leave to amend filed by Plaintiff Shin P. Yang and                                                         Shin P. Yang, ESQ dba Law Offices of Shin P. Yang

SERVICE:                              Motion for summary judgment filed April 6, 2023

                                                 Motion for leave to amend filed May 31, 2023

OPPOSITION:                       Opposition to motion for summary judgment filed June 7, 2023  

                                                 Opposition to motion for leave to amend filed June 9, 2023

REPLY:                                   Reply to motion for summary judgment filed June 15, 2023

                                                  Reply to motion for leave to amend filed June 12, 2023

RELIEF REQUESTED

             Defendants move for summary judgment, or in the alternative for summary adjudication, as to each cause of action in Plaintiff’s complaint.

            Plaintiff moves for leave to amend the complaint.

BACKGROUND

             This case arises out of Plaintiff Shin P. Yang’s (“Plaintiff”) that Defendants KAZN AM 1300 (“KAZN”), Multicultural Radio Broadcasting, Inc. (“MRBI”), Multicultral Radio Broadcasting Licensee, LLC, and Arthur Liu (“Liu”) (collectively “Defendants”) reneged on an agreement to advertise his legal services on air.

            Plaintiff filed a first amended complaint on August 23, 2019, alleging six causes of action for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) negligent interference with prospective economic relations, (4) intentional interference with prospective economic relations, (5) inducing breach of contract, and (6) intentional interference with contractual relations.

TENTATIVE RULING

             Plaintiff’s motion for leave to amend is DENIED.

            Defendant’s motion for summary judgment, or in the alternative for summary adjudication, is DENIED as to Plaintiff’s first, second, fifth, and sixth causes of action.

            Defendant’s motion for summary judgment, or in the alternative for summary adjudication, is GRANTED as to Plaintiff’s third and fourth causes of action.

OBJECTIONS TO EVIDENCE

            Defendants’ objections are overruled.

REQUESTS FOR JUDICIAL NOTICE

Defendants’ request for judicial notice is denied.

LEGAL STANDARD

Summary Judgment

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) “A party may move for summary judgement in an action or proceeding if it is contented that the action has no merit or that there is no defense to the action or proceeding.” (Code of Civil Procedure section 473c subd. (a)(1).) “The motion for summary judgment 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 a judgment as a matter of law.” (Code of Civil Procedures section 473c subd. (c).)

A three-step analysis is employed in ruling on motions for summary judgment. First, the court identifies the issues framed by the pleadings. Next, the court determines, when the moving party is the defendant, whether it has produced evidence showing one or more of the elements of the cause of action cannot be established or there is a complete defense to that cause of action. If the defendant does so, the burden shifts to the plaintiff to show the existence of a triable issue of material fact as to that cause of action or defense. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”  (Ibid.; see also Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) 

“A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to establish an essential element. (Veera v. Banana Republic, LLC, (2016) 6 Cal.App.5th 907, 914.)

Motion for Leave to Amend

Code of Civil Procedure section 473, subdivision (a)(1), provides in relevant part:  “The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” Trial courts have discretion to permit amendments, which should be exercised liberally in favor of amendments to promote the judicial policy to resolve all disputed matters in one lawsuit. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047. “But this policy applies only [w]here no prejudice is shown to the adverse party.” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175, quotation marks omitted.)

DISCUSSION

            Motion for Leave to Amend

            Plaintiff seeks leave to file a second amended complaint to allege a prayer for punitive damages and to allege facts to reintroduce MRBI as a defendant. On November 22, 2019, Defendants’ demurrer to Plaintiff’s first amended complaint was sustained in part, resulting in no causes of action remaining against MRBI. Further, Plaintiff’s prayer for punitive damages was struck.

            “ ‘Generally, “the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment.’ ” ’ ” (Eng v. Brown (2018) 21 Cal.App.5th 675, 706-707.)

            “[U]nwarranted delay in seeking leave to amend may be considered by the trial court when ruling on a motion for leave to amend [citation], and appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is ‘ “offered after long unexplained delay ... or where there is a lack of diligence” ’ [citation]. Thus, when a plaintiff seeks leave to amend his or her complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, even though the plaintiff has been aware of the facts upon which the amendment is based, ‘[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.’ ” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280.

            Plaintiff’s motion faces several timing-based issues. Defendants filed their motion for summary judgment on April 6, 2023, with a hearing date set for June 20, 2023. Plaintiff filed this motion for leave to amend on May 31, 2023, less than a month before the hearing on the motion for summary judgment. Trial is also set for July 25, 2023, and Plaintiff seeks to reintroduce a Defendant that has purportedly been excluded from this case for over three years. Plaintiff also provides that he discovered the facts giving rise to the allegations on November 7, 2022. (Pierry Decl. ¶ 18.) Even taking Plaintiff’s arguments at face value, Plaintiff waited over six months and until after a motion for summary judgment was filed to file the motion for leave to amend.

            Additionally, Plaintiff provides the new facts learned on November 7, 2022, were from the deposition of Felix Guo, who provided the reasoning for termination of the contract based on a phone call where Yvonne Liu (“Yvonne”) demanded a change to the language of the advertisement to protect the “special guest” status she and her husband has with Air China. (Ibid.) However those allegations are present in Plaintiff’s first amended complaint, which was filed in August of 2019. (FAC ¶¶ 16, 23, 34, and 40.) Plaintiff does not provide why the request for amendment was not made earlier. (California Rules of Court, Rule 3.1324, subd. (b)(4).)

            Plaintiff’s motion for leave to amend also suffers from substantive problems. Plaintiff asserts that he should be allowed to plead a prayer for punitive damages based on allegations presented in his causes of action for breach of the implied covenant of good faith and fair dealing and intentional interference with prospective economic relations. Plaintiff also seeks to reallege facts against MRBI.

            “ ‘[L]eave to amend should not be granted where … amendment would be futile.’ ” (Nelson v. Tucker Ellis, LLP (2020) 48 Cal.App.5th 827, 848.) “Moreover, even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” (Melican v. Regents of University of California, supra, 151 Cal.App.4^th at p. 175, quotation marks omitted.)

            First, “[s]ince a party ‘may not recover in tort for ... breach of the implied covenant of good faith and fair dealing,’ an ‘award of punitive damages’ is not permitted on such a claim.” (Spinks v. Equity Residential Briarwood Apartments 171 Cal.App.4th 1004, 1054.) Further, punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a). A plaintiff seeking punitive damages “must include specific factual allegations showing that defendant's conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages. [Citation.] Punitive damages my not be pleaded generally.” (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.)

            Plaintiff’s proposed amendments only contain conclusory statements that Defendants were guilty of fraud, oppression, or malice and thus fail to allege facts sufficient to establish a prayer for punitive damages. Plaintiff’s motion for leave to amend to seek a prayer for punitive damages is futile.

            It is not so clear at the present juncture whether Plaintiff’s allegations against MRBI are sufficient to state a claim. However, based on Plaintiff’s delay in filing this motion for leave to amend until the eve of the hearing for Defendants’ motion for summary, the court finds that leave to amend would prejudice Defendants based on Plaintiff’s unwarranted delay.

            Plaintiff’s motion for leave to file a second amended complaint is denied.

            Motion for Summary Judgment

            Defendants move for summary judgment, or in the alternative for summary adjudication, as to each of Plaintiff’s six causes of action alleged in the FAC.

            First Cause of Action for Breach of Contract

            Defendants, specifically KAZN, move for summary judgment as to Plaintiff’s first cause of action for breach of contract on the basis that Plaintiff is unable to establish KAZN breached the contract.

            The essential elements of a breach of contract are: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damages to the plaintiff. (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th. 425, 433.)

            Plaintiff alleges he entered into two contracts with KAZN on March 20, 2019, to air an advertisement through KAZN and for an on-air live interview. (FAC ¶ 12.) KAZN asserts that it did not breach the contracts because it permissible cancelled them. Both contracts had a term that read: “The contents of all radio spots must comply with regulations set by FCC and FTC. KAZN reserves the right to stop or cancel any spot with inappropriate, illegal or exaggerated wordings.” (SSUF No. 4.) Both contracts also had a provision that stated: “The station reserves the right to change or adjust program time slots, hosts or contents without prior notice to clients. Should any spots miss airing, the station will place equal amount of make-good spots within two weeks.” (SSUF No. 5.)

            KAZN argues that it did not breach because it cancelled the advertisements and contents because they contained inappropriate content. KAZN’s arguments fail. First, KAZN does not present evidence or even expressly state that the advertisements were inappropriate, but rather argues that “[i]n KAZN’s and Yvonne Liu’s opinion, Plaintiff’s advertisements and interview contents contained an inappropriate reference.” (Motion at p. 10:21-22, emphasis added.)

            Further, KAZN’s evidence does not establish that the contracts contained inappropriate materials. In her deposition, Yvonne Liu stated she did not believe the content and subject matter of the advertisement and interview were appropriate. (Lee Decl. ¶ 2, Exhibit C at p. 31:6-16.) In contrast, when Felix Guo was asked whether he terminated the contract because the advertisement contained inappropriate language, he responded by saying “I wouldn’t say inappropriate language per se. It is the radio station’s standing in this case.” (Lee Decl. ¶ 3, Exhibit B at p. 65:21-25.) KAZN’s evidence, at best, demonstrates that Yvonne Liu thought the advertisement and interview contained inappropriate content. KAZN’s evidence does not demonstrate that the contents were factually inappropriate so as to permissibly allow for termination of the contracted.

            Defendants also argue that they properly cancelled the contracted based on the first amendment. “[I]t is axiomatic that the ‘constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state.’ [Ciation.] Thus, it is ‘undisputed that the First Amendment of the United States Constitution only applies to government actors; it does not apply to private corporations or persons.’ ” (Federal Agency of News LLC v. Facebook, Inc. (N.D. Cal. 2020) 432 F.Supp.3d 1107, 1121.) It undisputed that the contracts were between a KAZN and Plaintiff (SSUF Nos. 1-4), which does not implicate any government action or actors. Defendants’ First Amendment arguments are inapplicable here.

            KAZN has failed to meet its burden. Defendant’s motion for summary judgment as to Plaintiff’s first cause of action is denied.

            Second Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealings

            Defendants argue that Plaintiff’s second cause of action fails because Plaintiff’s first cause of action fails.

            “Under California law, every contract includes an implied covenant of good faith and fair dealing.” (Prager University v. Google LLC (2022) 85 Cal.App.5th 1022, 1039.) The covenant “exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349.)  

            However, because Defendants’ motion for summary judgment was denied as to Plaintiff’s first cause of action for breach of contract and because Defendants provide no other grounds for this motion, Defendants’ motion for summary judgment as to Plaintiff’s second cause of action for breach of the implied covenant of good faith and fair dealings is denied.

            Third and Fourth Causes of Action for Interference with Prospective Economic Relations

            Defendants move for summary judgment as to Plaintiff’s third and fourth causes of action for negligent interference with prospective economic relations and intentional interference with prospective economic relations, respectively, on the basis that Yvonne and Arthur were not third parties and did not engage in independently wrongful conduct.

            “The elements of a claim of interference with economic advantage and prospective economic advantage are: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional [or negligent] acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404, internal quotation marks omitted.) “The difference between intentional interference and negligent interference with prospective economic advantage relates to the defendant's intent.” (Id. at p. 1404, fn. 10.)

            The first issue here is whether Yvonne and Arthur are third parties to the contract.

            “The tort duty not to interfere with the contract falls only on strangers—interlopers who have no legitimate interest in the scope or course of the contract's performance.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514.)

            To establish that Yvonne and Arthur were not strangers to the contract, Defendants assert that Yvonne and Arthur are owners of KAZN. The only piece of evidence Defendants cite in support of this position is from Felix Guo’s deposition where he states Yvonne is the “president” of the company and Arthur is “also the president”. (Lee Decl. ¶ 2, Exhibit B at p. 72:13-23.) Guo states that Yvonne and Arthur are co-owners of this company. (Ibid.) However, Defendants fail to provide context as to what company Guo is referring to. Also, Guo previously stated in his deposition that Arthur and Yvonne are co-owners of MRBI. (Id. at p. 48:8-9.) Defendants have thus failed to meet their burden of showing Plaintiff is unable to establish this element.

            The next issue is whether Yvonne and Arthur engaged in independently wrongful conduct.

            “An additional element is required. ‘The tort of intentional interference with prospective economic advantage is not intended to punish individuals or commercial entities for their choice of commercial relationships or their pursuit of commercial objectives, unless their interference amounts to independently actionable conduct. [Citation.]’ [Citation.] As such, courts require an additional element, that the alleged interference must have been wrongful by some measure beyond the fact of the interference itself. [Citation.] For an act to be sufficiently independently wrongful, it must be ‘unlawful, that is, ...it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.’ ” (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404.)

            Defendants argue that Plaintiff is unable to demonstrate an independently wrongful conduct because the only conduct Plaintiff asserts was wrongful included a phone call that led to the cancellation. (SSUF No. 13-14; 31.) Plaintiff asserts no other conduct that could provide a basis of liability. Defendants have met their burden of showing that Plaintiff cannot establish Yvonne and Arthur engaged in an independently wrongful conduct. In opposition, Plaintiff argues that Yvonne and Arthur engaged in wrongful conduct by breaching their fiduciary duty to MRBI. Plaintiff’s arguments contained strained logic and fail. Plaintiff fails to show how Defendants’ conduct towards MRBI establishes the basis for Plaintiff to bring this claim. As ruled on by the previous demurrer, MRBI is not part of the present contract. Plaintiff is not a part of MRBI or has any interest in it. Plaintiff fails to raise a triable issue of material fact.

            Defendants motion for summary judgment as to Plaintiff’s third and fourth causes of action for interference with prospective economic relations is granted.

            Fifth and Sixth Causes of Action

            Defendants move for summary judgment as to Plaintiff’s fifth and sixth causes of action for inducing breach of contract and intentional interference with contractual relations, respectively.

            “The tort of inducing breach of contract requires proof of a breach, whereas the tort of interference with contractual relations requires only proof of interference.” (Jenni Rivera Enterprises, LLC v. Latin World Entertainment Holdings, Inc. (2019) 36 Cal.App.5th 766, 782.)

            “The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. “ (Pacific Gas & Electric Co. v Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)

            Defendants argue that Plaintiff’s fifth and sixth causes of action fail because Yvonne and Arthur are not third parties and there was no breach, relying on their previous arguments. However, both of those arguments were rejected. Defendants’ evidence demonstrate that Yvonne and Arthur are co-owners of MRBI . However, the evidence in the record does not establish that they are co-owners of KAZN. Further, Defendants failed to establish that Plaintiff is unable to demonstrate KAZN breached the contract. Defendants have therefore failed to meet their burden. 

            Defendants’ motion for summary judgment as to Plaintiff’s fifth and sixth causes of action are denied.

CONCLUSION

             Plaintiff’s motion for leave to amend is DENIED.

            Defendant’s motion for summary judgment, or in the alternative for summary adjudication, is DENIED as to Plaintiff’s first, second, fifth, and sixth causes of action.

            Defendant’s motion for summary judgment, or in the alternative for summary adjudication, is GRANTED as to Plaintiff’s third and fourth causes of action.

            Moving Party to give notice.

Dated:   June 20, 2023                                                ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org