Judge: Joel L. Lofton, Case: 22AHCV00513, Date: 2023-02-21 Tentative Ruling
Case Number: 22AHCV00513 Hearing Date: February 21, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: February
21, 2023 TRIAL DATE: No date set.
CASE: XINRUI WU v. LAW
OFFICE OF HWANG & WEISS, a California Professional Corporation; POMONA HOLY
CHURCH, a non-profit religious corporation; POMONA INTERNATIONAL CHURCH, a
non-profit religious corporation; ANDREW BAOSONG HWANG, ESQ., and individual;
and DOES 1 through 20, inclusive.
CASE NO.: 22AHCV00513
DEMURRER
WITH MOTION TO STRIKE
DEMURRING PARTY: Defendants Pomona Holy Church and
Pomona International Church (“Demurring Parties”)
RESPONDING PARTY: Plaintiff
Xinrui Wu
SERVICE: Filed October 12, 2022
OPPOSITION: Filed February 7, 2023
REPLY: No
reply filed.
RELIEF
REQUESTED
Demurring Parties demurrer to Plaintiff’s first, second, third, fourth,
and fifth causes of action.
Demurring Parties move
to strike Plaintiff’s prayer for punitive damages.
BACKGROUND
This case arises out of Plaintiff Xinrui Wu’s
claim that Defendant Andrew Baosong Hwang (“Hwang”) made various misrepresentations
about Plaintiff’s ability to apply for an EB-4 visa as a religious worker. Plaintiff
filed this complaint against Hwang, the Law Office of Hwang & Weiss, Pomona
Holy Church, and Pomona International Church, alleging nine causes of action
for (1) international (sic) misrepresentation, (2) negligent misrepresentation,
(3) fraudulent concealment, (4) breach of the implied covenant of good faith
and fair dealing, (5) breach of fiduciary duty, (6) conversion, (7)
professional negligence, (8) unjust enrichment, and (9) common count.
TENTATIVE RULING
Demurring
Parties’ demurrer to Plaintiff’s first, second, third, and fifth causes of
action are OVERRULED.
Demurring
Parties’ demurrer to Plaintiff’s fourth cause of action is SUSTAINED with leave
to amend.
Demurring
Parties’ motion to strike is DENIED.
LEGAL STANDARD
Demurrer
A general
demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to
constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or by proper judicial
notice. (Code Civ. Proc. section
430.30(a).) A demurrer tests the pleadings alone and not the evidence or
other extrinsic matters. (SKF Farms v. Superior Court (1984) 153
Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn v.
Mirda, supra, 147 Cal.App.4th 740, 747.)
Additionally, a
special demurrer to a complaint may be brought on the ground the pleading is
uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based
on uncertainty is disfavored and will be strictly construed even when the
pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14
Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if
the pleading is so incomprehensible that a defendant cannot reasonably
respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208
Cal.App.4th 1125, 1135.)
Motion to Strike
Any party, within the time allowed to respond to a pleading
may serve and file a notice of motion to strike a pleading or any part
thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The
court may, upon a motion, or at any time in its discretion, and upon terms
it deems proper, strike any irrelevant, false, or improper matter inserted in
any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may
also strike all or any part of any pleading not drawn or filed in conformity
with California law, a court rule, or an order of the court. (Code Civ.
Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one
that is not essential to the statement of a claim or defense; is neither
pertinent to nor supported by an otherwise sufficient claim or defense; or a
demand for judgment requesting relief not supported by the allegations of the
complaint. (Code Civ. Proc., 431.10, subd. (b).) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (Code Civ. Proc., § 437.)
DISCUSSION
Allegations
Plaintiff alleges that starting around February 2019, Plaintiff
received legal consultation from Hwang regarding an EB-4 visa. (Complaint ¶ 13.) Plaintiff
alleges that around May 2019, Hwang represented that Plaintiff and his wife met
the requirements for the EB-4 visa application. (Id. ¶ 15.) Plaintiff alleges that around July 2019,
Hwang represented that the attorney’s fees for an EB-4 application would be
$300,000. (Id. ¶ 16.) Plaintiff alleges he agreed to retain Hwang
and paid $50,000 to Hwang. (Id. ¶ 17.) Plaintiff alleges he provided
Hwang a blank check, who wrote the recipient of the check as Defendant Pomona
Holy Church. (Ibid.) Plaintiff alleges that Hwang did not provide a
retainer agreement. (Id. ¶ 18.) Plaintiff alleges that Hwang informed
Plaintiff that one of his two churches would be the petitioner for Plaintiff’s
EB-4 visa application. (Ibid.) Plaintiff alleges that after Defendants
failed to apply for an EB-4 visa on his behalf, he demanded a refund. (Id. ¶
23.) Plaintiff alleges that Defendants failed to provide a refund. (Id.
¶ 24.)
Plaintiff argues that Hwang is the
Chief Executive Officer, Secretary, and Chief Financial Officer of Moving
Parties. (Opposition at p. 6:5-6.) However, those allegations are not found in
Plaintiff’s pleading.
First Cause of Action for Intentional
Misrepresentation
Plaintiff’s
first cause of action brings a claim for “international misrepresentation.”
However, the allegations and the parties’ argument demonstrate that Plaintiff
sought to allege a claim for intentional misrepresentation.
“The essential
elements of a count for intentional misrepresentation are (1) a
misrepresentation, (2) knowledge of falsity, (3) intent to induce
reliance, (4) actual and justifiable reliance, and (5) resulting damage.”
(Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-31.)
Plaintiff
alleges that Hwang made various misrepresentations that Plaintiff would be a
successful EB-4 applicant. (Complaint ¶ 27.) Plaintiff alleges Hwang knew the statements were false (id.
¶¶ 28-29), intended to induce Plaintiff’s reliance (id. ¶ 30), and
damages (id. ¶ 31.) Plaintiff also alleges that each Defendant ratified
Hwang’s actions. (Id. ¶
37.)
Demurring
Parties argue that Plaintiff’s first cause of action fails because they did not
make a misrepresentation to Plaintiff. Demurring Parties specifically argue
that they do not provide legal services and that therefore they could not have
made a misrepresentation regarding Plaintiff’s EB-4 visa. Demurring Parties also
argue that Plaintiff’s reliance was unreasonable because they do not provide
legal services.
Demurring
Parties’ arguments are unavailing. Demurring Parties are essentially arguing
that because they do not practice law, they could not have made a
misrepresentation about the law. However, Plaintiff alleges that Hwang
practices law and made the statements on Demurring Parties’ behalf
(Complaint ¶ 6) and that Demurring Parties ratified Hwang’s
actions (id. ¶ 37). At this
stage, Plaintiff’s claims are sufficient to allege that Demurring Parties
engaged in intentional misrepresentation by and through Hwang’s conduct.
Demurring Parties’ demurrer to Plaintiff’s first cause of action is overruled.
Second
Cause of Action for Negligent Misrepresentation
Demurring Parties argue that Plaintiff’s
second cause of action for negligent misrepresentation fails because they did
not owe Plaintiff a duty and Plaintiff fails to allege misrepresentation of a
past or existing material fact.
The elements of negligent
misrepresentation are “[m]isrepresentation of a past or existing material fact,
without reasonable ground for believing it to be true, and with intent to
induce another's reliance on the fact misrepresented; ignorance of the truth
and justifiable reliance on the misrepresentation by the party to whom it was
directed; and resulting damage. (Hydro-Mill Co., Inc. v. Hayward, Tilton,
& Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154.)
First, Demurring Parties argue that
owed no duty to Plaintiff but do not substantiate or expand on that argument in
any way. Demurring Parties’ argument is thus rejected. Further, Plaintiff
alleges that Hwang provided legal services to Plaintiff and planned to use
Demurring Parties as part of the services provided. (Complaint ¶ 18.) Second, Plaintiff partly relies on
representations regarding future events that would not be sufficient to allege
a claim for negligent misrepresentation, such as that Plaintiff “could become a
successful applicant”. (Id. ¶ 40.) However, Plaintiff alleges that Hwang
stated he would provide legal services regarding Plaintiff’s EB-4 visa, but that
those statements were false. (Id. ¶ 16-19.)
At the pleading stages, Plaintiff’s allegations are sufficient to
state a claim for negligent misrepresentation. Demurring Parties’
demurrer to Plaintiff’s second cause of action is overruled.
Third Cause of Action for Fraudulent
Concealment
Demurring Parties argue that Plaintiff
fails to allege that they owed a duty of care to Plaintiff.
“[T]he elements of an action for
fraud and deceit based on concealment are: (1) the defendant must have concealed
or suppressed a material fact, (2) the defendant must have been under a duty to
disclose the fact to the plaintiff, (3) the defendant must have intentionally
concealed or suppressed the fact with the intent to defraud the plaintiff, (4)
the plaintiff must have been unaware of the fact and would not have acted as he
did if he had known of the concealed or suppressed fact, and (5) as a result of
the concealment or suppression of the fact, the plaintiff must have sustained
damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230,
248.)
Plaintiff alleges that Plaintiff,
Hwang, and all other defendants “maintained a business relationship and
maintained a fiduciary relationship based on legal services provided by Andrew
Hwang”. (Complaint ¶ 50.) Plaintiff also alleges
that Hwang represented that one of his two churches would apply for Plaintiff’s
EB-4 visa. (Id. ¶ 18.) Plaintiff alleges that Hwang failed to disclose
that the checks were being written to Pomona Holy Church instead of Hwang’s law
office and that the money was deposited into Pomona Holy Church’s bank account.
Plaintiff’s allegations are
sufficient to allege a duty to disclose by Hwang on behalf of Demurring
Parties. Demurring Parties’ demurrer to Plaintiff’s third cause of action is
overruled.
Fourth
Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealings
Demurring
Parties argue that Plaintiff’s fourth cause of action fails because the only
agreement alleged was between Plaintiff and Hwang.
“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.)
In opposition, Plaintiff argues that
his complaint alleges an arrangement for Hwang to provide legal services,
including using Demurring Parties as a petitioner for the EB-4 visa. However,
those allegations are not sufficient to allege the existence of an agreement
between Plaintiff and Demurring Parties. The only agreement alleged is between
Hwang and Demurring Parties. Demurring Parties’ demurrer to Plaintiff’s
fourth cause of action is sustained with leave to amend.
Fifth Cause of Action for
Breach of Fiduciary Duty
Demurring
Parties argue that Plaintiff fails to allege the existence of a fiduciary duty
they owed Plaintiff.
“The elements of a cause of action
for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2)
the breach of that duty; (3) damage proximately caused by that breach.” (IIG
Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 646.)
Plaintiff alleges that all
defendants maintained a business relationship and fiduciary relationship with
Plaintiff based on the legal services provided by Hwang. (Complaint ¶ 73.) Plaintiff alleges that Hwang acted in
concert with and on behalf of Demurring Parties. Demurring Parties’ demurrer to
Plaintiff’s fifth cause of action is overruled.
Motion to Strike Punitive Damages
Demurring Parties also move to strike Plaintiff’s prayer for punitive
damages against them.
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.)
Demurring
Parties argue that Plaintiff’s claims fail to state facts sufficient to allege
a prayer for punitive damages because their underlying claims fail. However,
the court has overruled Demurring Parties’ demurrer as to Plaintiff’s first,
second, third, and fifth causes of action. Because Demurring Parties’ motion to
strike is predicated on their demurrer, their motion to strike fails as well.
Plaintiff has alleged fraudulent conduct to maintain a claim for punitive
damages against Demurring Parties. Demurring Parties’ motion to strike is
denied.
CONCLUSION
Demurring Parties’
demurrer to Plaintiff’s first, second, third, and fifth causes of action are
OVERRULED.
Demurring
Parties’ demurrer to Plaintiff’s fourth cause of action is SUSTAINED with 20
days leave to amend.
Demurring
Parties’ motion to strike is DENIED.
Moving Party
to give notice
Dated: February 21,
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