Judge Lynne M. Hobbs, Case Number: 23STCV21849, Date: 2024-07-11 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV21849, Date: 2024-07-11 Tentative Ruling

Case Number: 23STCV21849 Hearing Date: July 11, 2024 Dept: 61

MIN JIANG, AN INDIVIDUAL, vs STEVEN ZHI QIN, AN INDIVIDUAL, , et al.

TENTATIVE

Defendant Home Times Group, Inc.’s Demurrer and Motion to Strike the Second Amended Complaint is SUSTAINED as to the third cause of action for conversion without leave to amend, and OVERRULED as to the other causes of action. The motion to strike is DENIED.

Plaintiff to give notice.

DISCUSSION

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“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.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant Home Times Group, Inc. (Home) demurrers to each cause of action contained in Plaintiff Min Jiang’s (Plaintiff) Second Amended Complaint (SAC). Defendant argues that the first cause of action for fraud fails because the fraudulent representations alleged on the part of Defendant Hua Guo (Guo) are not attributable to it because Guo was an independent contractor, rather than an employee, as demonstrated by the 2005 independent contractor agreement entered between them. (Demurrer at pp. 9–10.) The same argument supports Defendant’s demurrer against the second and fourth causes of action for unjust enrichment and breach of fiduciary duty. (Demurrer at pp. 10–11, 12–13.) Defendant argues that the third cause of action for conversion may only be directed toward the conversion of personal property, not real property. (Demurrer at pp. 11–12.) Defendant finally argues that the claims are time-barred, because the real property deeds put Plaintiff on constructive notice of the transfers of her purported interest in the property. (Demurrer at pp. 13–14.)

Defendant’s arguments against the first, second, and fourth causes of action, as well as the prayer for punitive damages, rest upon a 2005 independent contractor agreement, which apparently limits the scope of Guo’s work for Defendant. (Chiang Decl. Exh. D.) But this agreement is neither part of the SAC nor a judicially noticeable matter under Evidence Code § 452, and as such it forms no basis for disposition of any claim on demurrer. (See Hahn, supra, 147 Cal.App.4th at p. 747.) None of Defendant’s arguments based on Guo’s purported status as an independent contractor — which are most of them — is properly before the court.

Defendant’s argument from the statute of limitations fares little better, because it relies exclusively on an erroneous claim of constructive notice offered to Plaintiff as a matter of law. (Demurrer at p. 13.) Such constructive notice is purportedly offered by publicly recorded grant deeds. (Ibid.) But as this court noted in its prior ruling on Defendant’s earlier demurrer, there is no authority for the proposition that these publicly recorded documents would have given constructive notice to Plaintiff. Rather, ““[w]here fraud is involved, public records are not constructive notice of the true facts to the defrauded party.” (Gross v. Needham (1960) 184 Cal.App.2d 446, 460.)

Defendant also rehashes another argument, rejected in the prior demurrer, that Plaintiff cannot claim Defendant acted as her agent absent a written agreement. (Motion at p. 6.) This argument is contrary to cast authority stating that the requirement of a written agreement is a “consumer protection mechanism to protect real estate sellers and purchasers from the assertion of false claims by brokers for commissions,” and does not prohibit “an action by a principal against his or her broker to disgorge a commission already paid on the ground that the broker breached its fiduciary duty and obtained a secret profit.” (Westside Estate Agency, Inc. v. Randall (2016) 6 Cal.App.5th 317, 324–325.) These arguments furnish no basis to sustain the demurrer.

The sole argument advanced by Defendant with any merit is the argument addressed to the third cause of action for conversion, which targets the conversion of Plaintiff’s two-thirds interest in the real property that she purchased. (SAC ¶ 52.) “[C]onversion of real property . . . is not a recognized tort.” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1282.) Accordingly, the demurrer is SUSTAINED as to the third cause of action, without leave to amend.

The demurrer is therefore SUSTAINED without leave to amend, and is otherwise OVERRULED. The arguments in the motion to strike are duplicative of those raised on demurrer, and the motion is therefore DENIED.