Judge Lee W. Tsao, Case Number: 23NWCV04206, Date: 2024-06-20 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV04206, Date: 2024-06-20 Tentative Ruling

Case Number: 23NWCV04206 Hearing Date: June 20, 2024 Dept: C

BAEK v. TISHBI

CASE NO.: 23NWCV04206

HEARING: 06/20/24

#13

Defendant Dietz International Public Adjusters of California’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend.

Moving Party to give notice.

This fraud action was filed by Plaintiff SEUNG JAE BAEK (“Baek”) on December 29, 2023. Plaintiff alleges the following relevant facts: “On or about 07/18/2022, BAEK and other lots of persons and entities were sued by ELLIOT... (Case No. 22 STCV 03159), where BAEK was served on or about 01/25/2023. [¶] In said case, ELLIOT… argued that BAEK fraudulently transferred inventories…using false invoices prior to the fire (i.e. Arson). [¶] Thereafter, BAEK had been reasonably and diligently investigating said factual argument of above case, since 03/02/2023, finding ELLIOT’s intent: 1) to cover up his planned fire and 2) to void, excuse and release his duty and/or liability to pay to the US. Truste in the course of Bankruptcy proceeding. [¶]… ELLIOTT and his Co-conspirator JEFF deliberately and fraudulent falsified (faked) material facts of BAEK’s business invoices (i.e., Day Trippin). [¶] On 7/5/2019, ELLIOTT and STEPHEN in recognition of Falsified (faked) Invoices… brought to the Insurance Claim Broker, DIETZ. [¶]…Insurance claim broker (i.e. Dietz International Public Adjusters of California) designed and encouraged this falsification of invoices, so as to maximize claim amount.” (Complaint ¶¶10-15.) “ELLIOT and JEFF changed, altered and modified material facts of BAEK’s invoices, exactly matching to the material terms of Insurance policy Declaration in that: 1) billing address of faked invoices to the same site of fire as insurance policy indicating at 1901 E. 55^th St., Vernon CA 90058; and 2) Numbers of Item shipped and their Prices to Increase of Inventories value burned and scored.” (Complaint ¶16.) Thereafter, more than $4,200,000.00 of the claim amount was determined to pay upon Dietz’s brokerage, where $163,936.20 was paid to Dietz International. (Complaint ¶17.) “[I]t was clear that BAEK was a ‘Scapegoat,’ maliciously and deliberately being used by ELLIOT, who wanted to cover up his planned ARSON.” (Complaint ¶19.)

Plaintiff’s Complaint asserts the following causes of action:

(1) Fraudulent Misrepresentation;

(2) Falsification of Documents (Negligence Per Se); and

(3) Negligence

The Court notes that as of June 14, 2024, this action has not been deemed related to any other pending civil action throughout the Los Angeles Superior Court, and no Notice of Related case has been filed in this action.

Defendant Dietz International Public Adjusters of California (“Dietz”) specially and generally demurs to the first and second causes of action.

Uncertainty

Dietz argues that the first and second causes of action 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 Dietz’s other arguments that it understands what the Complaint 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 – Fraudulent Misrepresentation

The elements of a fraudulent misrepresentation cause of action are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Engalia v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.)

“Fraud must be pleaded with specificity… [t]o withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings. (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.) “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)

This lawsuit arises out of an insurance fraud scheme. Defendant Elliot Tishibi (“Tishibi”) confided in Baek a plan to set fire to their business to collect insurance proceeds. Baek agreed to keep the scheme a secret, but eventually disclosed the scheme after Tishibi sued Baek for fraudulent transfer.

Dietz argues that whatever the dispute between Baek and Tishibi, the Complaint does not state a cause of action against Dietz.

The Complaint alleges that Tishibi and Defendant Stephen Jung brought falsified invoices to Dietz, their insurance claim broker. (¶14.) Dietz “designed and encouraged this falsification of invoices” so as to maximize the claim amount. (¶15.) Dietz was paid $163,936.20 from the proceeds of the claim. (¶17.)

The demurrer to the first cause of action is SUSTAINED with 30 days leave to amend. As alleged, the Complaint does not allege any facts tending to show how or when Dietz “designed and encouraged” false invoices, how Dietz knew the invoices were false, how Baek relied upon the false invoices, and what damages Baek has suffered (if any). The only damages alleged appear to be for the recovery of damages claimed in the other unrelated civil action. (see Complaint, Prayer ¶3.)

Second Cause of Action – Falsification of Documents (Negligence Per Se)

As argued in the instant Demurrer, negligence per se is not a separate and independent cause of action. (Ev. Code §669; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256.) Negligence per se is not a separate cause of action, as it is rooted in the underlying theory of negligence. (Quiroz at 1256.) While some cases have allowed negligence per se to be alleged, even where a claim for general negligence is barred, those cases involve unique circumstances not presented here. (Capri v. L.A. Fitness Int’l, LLC (2006) 136 Cal.App.4th 1078.)

In light of the liberality associated with granting leave to amend, and to the extent that Plaintiff is able to do so, leave to amend is granted. The demurrer to the second cause of action is SUSTAINED with 30 days leave to amend.