Judge Lee W. Tsao, Case 22NWCV00380 2023-02-23 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV00380, Date: 2023-02-23 Tentative Ruling

Case Number: 22NWCV00380 Hearing Date: February 23, 2023 Dept: C

KIM v. SEKERO ONE, INC.

CASE NO.: 22NWCV00380

HEARING: 02/23/23

TENTATIVE ORDER

Defendants SEKERO ONE, INC.; SEKERO INTERNATIONAL, INC.; JONG H. CHOI; and HAEUN E. CHOI’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend in part and SUSTAINED without leave to amend in part.

Moving Party to give notice.

Plaintiff’s Request for Judicial Notice is DENIED as to: (1) Confirmation of Agreement on the date of February 3, 2020 to reconfirm Telephone Conversation between Joo Hwan Kim and Jong H. Choi; and (2) Invoice of transaction of January 2020 ($19,500.00) issued by Joo Hwan Kim individually upon agreement and directly shipped to Jong H. Choi. These documents are not judicially noticeable. (See Cal. Ev. Code §452.)

Plaintiff’s Request for Judicial Notice is GRANTED as to the Business Search of Sekero International, Inc. (Cal. Ev. Code §452.)

This action was filed by Plaintiff JOO HWAN KIM (pro per) (“Plaintiff”) on May 17, 2022. Plaintiff alleges the following relevant facts: “Plaintiff and defendants were Merchants in the transaction of goods… under UCC (II). Plaintiff was a distributer of Grain (Rice) and defendants were Manufacturer of Grain-based food (i.e., Rice cake and etc.), legally being required Good Faith.” (Complaint ¶7.) “Plaintiff and defendants (merchants) had customarily been trading the good… more than twenty (20) years since 2001.” (Complaint ¶9.) “On 11/21/19, during the course of transaction, however, the defendants suddenly closed their business (i.e. Sekero International, Inc.) and same date (11/21/19) established new company (i.e. Sekero One, Inc.).” (Complaint ¶10.) “The transaction had nonetheless been continued regardless of changing the name of business until 01/30/2020, unexpectedly informing no more supplying the Rice to them without any cause.” (Complaint ¶11.) “The remaining balance then was $19,500.00… unfortunately causing other directly-related chain damage ($7,500.00) to the farmers… because the plaintiff customarily and traditionally could not paid to the farmer-suppliers.” (Complaint ¶12.) “Although the defendants have been continuously doing same type of business until their sudden notice not to ship the grain (Rice) without any reasonable and good cause, they never had paid any balance, nor had they communicated therewith.” (Complaint ¶13.) “Recently, however, they have officially denied to pay the balance and other directly-related chain damage, totaling $27,000.00.” (Complaint ¶14.)

Plaintiff asserts the following causes of action: (1) Breach of Contract (UCC); (2) Violation of Implied Covenant of Good Faith and Fair Dealing; and (3) Unjust Enrichment.

Defendants’ SEKERO ONE, INC.; SEKERO INTERNATIONAL, INC.; JONG H. CHOI; and HAEUN E. CHOI (“Defendants”) specially and generally demur to the entire Complaint.

Uncertainty

Defendants argue that Plaintiff’s claims are fatally uncertain. This argument lacks merit because “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Moreover, demurrers for uncertainty are disfavored and will only be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif. Inc. (1993) 14 Cal.App.4th 612, 616.) 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.” (Ibid.) Here, it is clear from Defendants’ other arguments that they understand what Plaintiff at least attempts to allege, and there is no true uncertainty. The Demurrer is not sustained on the basis of uncertainty.

First Cause of Action – Breach of Contract

Defendants argue that this claim fails because the nature of the contract cannot be ascertained from the pleading. Specifically, Defendants argue that Plaintiff fails to allege whether the contract is written or oral, and fails to plead the terms of any contract.

A demurrer may be sustained if, “[i]n any action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (CCP §430.10(g).)

Here, Plaintiff fails to allege whether the contract at issue was written, oral, or implied. The demurrer is SUSTAINED with 30 days leave to amend.

Second Cause of Action – Breach of Implied Covenant of Good Faith and Fair Dealing

“The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract. [Citations Omitted.]” (Smith v. San Francisco (1990) 225 Cal.App.3d 38, 49.)

As indicated above, Plaintiff has failed to allege the existence of a contractual relationship between the parties. The demurrer to the second cause of action is SUSTAINED with 30 days leave to amend.

Third Cause of Action – Unjust Enrichment

There is a split of authority across the appellate courts regarding whether unjust enrichment is a cause of action or a principle of law. Jogani v. Superior Court (2008) 165 Cal.App.4^th 901, 911 and Melchior v. New Line Prods., Inc. (2003) 106 Cal.App.4^th 779, 794 hold that unjust enrichment is a principle underlying various doctrines and remedies, including quasi-contract. On the other hand, Hirsch v. Bank of America (2003) 107 Cal.App.4^th 708, First Nationwide Savings v. Perry (1992) 11 Cal.App.4^th 1657, and Lectrodryer v. Seoul Bank (2000) 77 Cal.App.4^th 723 view it as a separate cause of action.

Regardless of whether unjust enrichment is a cause of action or not, Plaintiff may still allege it as a theory supporting the remedy of rescission. A complaint may state multiple legal theories upon which recovery might be predicated for one claim for relief. (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal. App. 4^th 334, 351.) Indeed, the Court may recognize a cause of action based on quasi-contract to obtain the remedy of restitution. (See McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490.) However, here, Plaintiff does not allege a claim for restitution based on quasi-contract.

In Opposition, Plaintiff indicates that “Opposing party accepts and deletes Third Cause of Action (Unjust Enrichment).” (Opp. 2:12-13.). Therefore, the demurrer to the third cause of action is SUSTAINED without leave to amend.