Judge: Margaret L. Oldendorf, Case: 23AHCV00045, Date: 2023-08-22 Tentative Ruling


Case Number: 23AHCV00045    Hearing Date: August 22, 2023    Dept: P

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

NAVIGATORS REAL ESTATE, INC., DBA PINNACLE REAL ESTATE GROUP, a California corporation,

 

                                            Plaintiff,

vs.

 

LIPING HUANG, an individual; JACK WEI CHAO, an individual; LINA TA, an individual,

 

                                            Defendants.

 

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AND RELATED CROSS-ACTION

 

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Case No.: 23AHCV00045

 

 

[TENTATIVE] ORDER SUSTAINING DEMURRER TO HUANG CROSS-COMPLAINT WITH LEAVE TO AMEND

 

Date:   August 22, 2023

Time:  8:30 a.m.

Dept.:  P

 

          I.        INTRODUCTION

          In this action, Plaintiff Pinnacle Real Estate Group alleges it entered into a commission agreement with Defendant Liping Huang for the sale of real property owned by her in Monrovia. The agreement was for a fixed commission, payable to Pinnacle in the amount of $316,350. Pinnacle alleges it performed its part of the agreement; but that Huang failed to pay the commission as she was convinced by Defendants Jack Wei Chao and Lina Ta not to go through with the transaction.

          The underlying complaint alleges breach of contract against Huang, and intentional interference with contractual relations against Chao and Ta. Huang responded with a cross-complaint against Pinnacle and others. Pinnacle demurs to the cross-complaint on the basis that no damages are alleged, and that the declaratory relief action is redundant of claims in the main action. The demurrer has merit, and is therefore sustained.

 

II.       LEGAL STANDARD

Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer tests the legal sufficiency of a complaint. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247.

 

          III.     DISCUSSION

          A.       Insufficient Notice

          Huang’s opposition correctly notes that the demurrer was filed and served with insufficient notice. Code Civ. Proc. §1005 requires all moving papers to be filed and served at least 16 court days prior to the hearing. Pinnacle’s demurrer was served August 2 and filed August 3 -- only 13 court days prior to the hearing.

          Huang also points out that California Rules of Court, rule 3.1320(e) requires that a demurrer state in its caption the name of the demurring party. The caption of this demurrer does not comply with this requirement.

          “[T]he appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.” Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. Where a party objects to untimely notice and does not argue the merits, the defective notice is not waived. Robinson v. Wood (2008) 168 Cal.App.4th 1258, 1267.

          Here, because Huang has opposed the demurrer on the merits, the procedural defects are waived.

          B. Summary of Allegations of the Cross-Complaint

          Huang alleges as follows:

¶1       Huang resides in China and owns real property at 325 N. Terrace Drive, Monrovia.

¶¶2-9 Defendants are identified as Pinnacle, its agents E.G. Chen, B.H. Chen, and P.L. Gong; California Escrow Group, Inc. (CA Escrow) and its agents S. Wang and J. Zheng; and J. Shao, the buyer.

¶16     In 2020 Huang visited the U.S. and met E.G. Chen.

¶17     E.G. Chen knew Huang did not read or understand English.

¶18     E.G. Chen knew Huang’s son was incarcerated in 2022.

¶19     E.G. Chen knew Huang suffered major anxiety and was mentally incompetent in 2022.

¶20     E.G. Chen solicited Huang using WeChat for purposes of selling the property.

¶21     On December 6, 2022, E.G. Chen caused Huang to e-sign a fixed $315,360 commission agreement, a California Residential Purchase Agreement, and Joint Escrow Instructions for the premises, from a remote location in China.

¶22     Huang e-signed the documents but did not understand their terms.

¶23     E.G. Chen’s employer Pinnacle acted as a dual agent.

¶24     E.G. Chen did not disclose to Huang that Pinnacle represented both buyer and seller.

¶25     E.G. Chen caused additional escrow documents to be sent to Huang via email, including a $1,027,000 note secured by the premises to benefit J. Shao by reducing his purchase funds by $1,027,000.

¶26     On December 13, 2022, Huang executed a Special Power of Attorney appointing Lina Ta as her agent for the transaction.

¶27     On December 16, 2022, Ta retained Chao to represent her, as she does not understand English or real estate law.

¶28     On December 23, 2022 Chao, as Huang’s representative, disputed the RPA agreements with attorney Charles Pok, who represented Pinnacle and the buyer.

          Based on these facts, Huang alleges the following causes of action:

1. Fraud

2. Breach of Fiduciary Duty

3. Civil Conspiracy

4. Negligence

5. Declarative Relief.

 

          C. The Demurrer is Sustained

          Cross-Defendants Pinnacle, J. Shao, G. Chen, and P.L. Gong

demur to the Cross-Complaint on the ground that, accepting all allegations as true, no cause of action is alleged because the facts do not demonstrate that Huang has been damaged. This argument has merit. The Cross-Complaint, as pled, does not demonstrate that Huang has suffered any harm. Damage is a necessary element of fraud (Lim v. The.TV Corp International (2002) 99 Cal.App.4th 684, 694); breach of fiduciary duty (O’Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215); civil conspiracy (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 212); and negligence (Thomas v. Stenberg (2012) 206 Cal.App.4th 654,662).

          Huang opposes the demurrer by arguing that her pre-litigation attorney fees and investigation costs are her damages. This argument fails as those are not damages resulting from any of the torts that have been alleged. In any amended pleading, Huang must allege facts that identify what damage she suffered as a result of the alleged fraud, breach of fiduciary duty, conspiracy, and negligence.

          Declaratory relief is barred for a different reason: declaratory relief cannot be used for the purpose of determining issues that can be established in the underlying claims. General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470-471.

 

IV.     CONCLUSION AND ORDER

          The cross-defendants’ Demurrer is sustained for the reasons set forth in the moving papers and as set forth above. Huang is granted 10 days to file an amended cross-complaint.          

          Moving parties are ordered to give notice.

 

 

         

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT