Judge: Lynette Gridiron Winston, Case: 24PSCV02454, Date: 2025-05-13 Tentative Ruling
Case Number: 24PSCV02454 Hearing Date: May 13, 2025 Dept: 6
CASE NAME: Man Kan Sun v. Qi Chen, et al.
2. Defendant Zixin Ni’s Motion to Strike Portions of Complaint
TENTATIVE RULING
The Court SUSTAINS Defendant Zixin Ni’s demurrer to the First and Third Causes of Action of Plaintiff’s complaint with 20 days’ leave to amend.
The Court DENIES Defendant Zixin Ni’s motion to strike portions of the complaint as moot.
Defendant Zixin Ni is ordered to give notice of the Court’s ruling within five calendar days of this order.
BACKGROUND
This is a theft case. On July 30, 2024, plaintiff Man Kan Sun (Plaintiff) filed this action against defendants Qi Chen (Chen), Zixin Ni, also known as, Kinsley Ni (Ni) (collectively, Defendants), and Does 1 through 50, alleging causes of action for civil theft/conversion/robbery/extortion, assault and battery, and fraud.
On April 14, 2025, Ni filed a demurrer and motion to strike. On April 30, 2025, Plaintiff opposed both motions. Ni did not reply.
LEGAL STANDARD – Demurrer
A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (Donabedian).) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id. at pp. 993-994.)
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].)
A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits”].)
A demurrer can only be sustained when it disposes of an entire pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046-1047.)
DISCUSSION – Demurrer
Meet and Confer
Per Code of Civil Procedure section 430.41, subdivision (a), Ni was required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Ni’s efforts to meet and confer sufficient. (Chuang Decl., ¶ 3.)
First Cause of Action – Civil Theft/Conversion/Robbery/Extortion
To state a cause of action for conversion, the plaintiff must allege facts demonstrating the plaintiff owns or has the right to possess certain personal property, the defendant acted in a manner inconsistent with plaintiff’s property rights, and damages. (Regent All. Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177, 1181.) Civil conspiracy is not an independent tort, but rather is a means of imposing tort liability on others who participate in a tort even though they may not directly commit that tort. (City of Indus. v. City of Fillmore (2011) 198 Cal.App.4th 191, 211.) The elements of a civil conspiracy are two or more persons forming a group who agree to a common plan or design to commit a tort, a wrongful act is committed per the agreement, and damages result. (Ibid.)
Ni demurs to the First Cause of Action for civil theft/conversion/robbery/extortion on the grounds that it is conclusory and fails to allege a conspiracy with specificity required under California law. Ni contends the complaint fails to allege the elements of a civil conspiracy with particularity and improperly relies on conclusory allegations. Ni contends Plaintiff improperly attempts to lump Defendants together in this cause of action with the bare allegation that they conspired with each other.
In opposition, Plaintiff contends the complaint alleges sufficient facts to state a cause of action here. Plaintiff contends it alleges among other things that Ni fraudulently represented that she sought education at South Hills Academy as part of a ruse to gain immigration benefits and financial support. Plaintiff contends the complaint alleges Ni knowingly accepted benefits of free room, board, transportation, and tuition subsidies from Plaintiff, and that after Ni failed academically and was caught cheating, she and her mother attempted to use forged academic records to obtain additional financial assistance. Plaintiff then contends that the complaint alleges Ni was aware of and conspired with Chen to extract $100,000 from Plaintiff under threat of physical harm. Plaintiff contends the complaint alleges Ni actively assisted Chen in securing that $100,000 before absconding with the money back to China.
The Court finds the complaint does not allege sufficient facts to state a cause of action for conversion against Ni. The complaint does not allege any facts demonstrating that Ni was involved with Chen physically threatening Plaintiff to extract $100,000.00 from Plaintiff. (Compl., ¶¶ 29-37.) The complaint also does not allege any facts demonstrating Ni was involved with any plans to so threaten Plaintiff or that Ni was aware Chen had extracted the $100,000.00 from Plaintiff before Ni and Chen returned to China. (Compl., ¶¶ 29-37.) The alleged issues with Ni’s academic performance at South Hills Academy, trying to transfer to a different school, or accepting Plaintiff’s beneficence also do not demonstrate that Ni was involved with Chen’s extraction of the $100,000.00 from Plaintiff. (See Compl., ¶¶ 9-37.) Additionally, Plaintiff’s allegations that Defendants “concocted a plan to extort a large sum of money” is conclusory, which the Court disregards on a demurrer. (Compl., ¶ 29; Daniels v. Select Portfolio Servicing, Inc. (2022) 246 Cal.App.4th 1150, 1173, disapproved on other grounds by Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal. 5th 905 [conclusory allegations of conspiracy do not withstand demurrer].)
Based on the foregoing, the Court SUSTAINS the demurrer to the First Cause of Action with 20 days’ leave to amend.
Third Cause of Action – Fraud
To state a cause of action for fraud, the plaintiff must allege facts demonstrating, “(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff. [Citation.]” (Graham v. Bank of Am., N.A. (2014) 226 Cal.App.4th 594, 605-606, internal quotation marks omitted (Graham).) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. Thus the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Ct. (1996) 12 Cal.4th 631, 645, internal quotation marks and citations omitted, italics in original (Lazar).
Ni demurs to the Third Cause of Action for fraud on the grounds that it is conclusory and fails to allege the elements of fraud with the specificity required under California law. Ni contends Plaintiff’s fraud claim again simply lumps Defendants together without specifying how her claim against Ni meets each of the required elements of fraud, which is insufficient in light of the strict pleading requirements for fraud claims. Ni contends Plaintiff’s allegations are conclusory and fail to allege Ni making any specific representations, let alone the how, when, or where of any such representations. Ni contends Plaintiff completely fails to allege how Defendants misrepresented Ni’s desire to attend South Hills Academy and how that harmed Plaintiff. Ni contends Plaintiff’s damages in this action are based on the $100,000.00 she paid to Chen, not any damages to South Hills Academy from enrolling Ni in the school.
In opposition, Plaintiff contends to have pleaded sufficient facts to maintain a cause of action against Ni for fraud. Plaintiff contends to allege facts showing Ni’s knowledge, participation, and benefit from a fraudulent scheme. Plaintiff contends Ni misrepresented her academic intent, engaged in deception with fabricated transcripts, and conspired to obtain funds under false premises.
The Court finds the complaint fails to allege sufficient facts to state a cause of action for fraud. Ni correctly contends that the complaint does not allege Ni having made any knowingly false representations to Plaintiff, nor does it allege how, when, where, or by what means such misrepresentations were purportedly made. (See Compl., ¶¶ 9-37; Lazar, supra, 12 Cal.4th at p. 645.) Even assuming Ni made such a misrepresentation, the complaint does not allege sufficient facts demonstrating Defendants misrepresented Ni’s desire to attend South Hills Academy. At most, the complaint alleges Ni started having academic problems sometime after attending, and that she even did well academically at one point. (Compl., ¶¶ 9-27.) Ni also correctly contends that the complaint does not allege any facts demonstrating how Ni’s academic problems at South Hills Academy or the fabrication of transcripts harmed Plaintiff. (See Compl., ¶¶ 9-37; Graham, supra, 226 Cal.App.4th 594, 605-606.) Additionally, the $100,000.00 Plaintiff allegedly paid Chen under duress was the result of a physical threat, not misrepresentations. (See Compl., ¶¶ 29-37.)
Based on the foregoing, the Court SUSTAINS the demurrer to the Third Cause of Action with 20 days’ leave to amend.
LEGAL STANDARD – Motion to Strike
“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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Id., § 436.)
DISCUSSION – Motion to Strike
Meet and Confer
Per Code of Civil Procedure section 435.5, subdivision (a), Ni was required to meet and confer in person, by telephone, or by video conference before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Ni’s efforts to meet and confer sufficient. (Chuang Decl., ¶ 3.)
Punitive Damages
A claim for punitive damages is subject to a motion to strike when the allegations fail to rise to the level of malice, oppression, or fraud necessary under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.)
Ni seeks to strike the punitive damages allegations from the First and Third Causes of Action and the corresponding requests for those causes of action in the Prayer for Relief of the complaint on the grounds that the allegations in the complaint are insufficient to support Plaintiff’s requests for punitive damages.
In opposition, Plaintiff contends to allege that Ni actively engaged in a scheme to extract money based on false pretenses, which would amount to intentional misrepresentation and deceit. Plaintiff contends these facts demonstrate actual fraud. Plaintiff contends Ni’s alleged participation in coercive acts with Chen ultimately culminated into pressuring Plaintiff to transfer money in China, and demonstrates a willful and conscious disregard for Plaintiff’s rights. Plaintiff contends the complaint alleges Ni’s role in a coercive financial scheme and a pattern of deceit and abuse. Plaintiff contends to have alleged fraud and intentional wrongdoing, which support punitive damages claims.
Given the Court’s sustaining of the demurrer to both the First and Third Causes of Action for the reasons set forth above, the motion to strike the punitive damage allegations is moot.
Based on the foregoing, the Court DENIES Ni’s motion to strike as moot.
CONCLUSION
The Court SUSTAINS Defendant Zixin Ni’s demurrer to the First and Third Causes of Action of Plaintiff’s complaint with 20 days’ leave to amend.
The Court DENIES Defendant Zixin Ni’s motion to strike portions of the complaint as moot.
Defendant Zixin Ni is ordered to give notice of the Court’s ruling within five calendar days of this order.