Judge: Mark C. Kim, Case: 20LBCV00353, Date: 2023-02-21 Tentative Ruling



Case Number: 20LBCV00353    Hearing Date: February 21, 2023    Dept: S27

1.     Background Facts

On August 6, 2020, Plaintiff M.I.AIR Corporation filed its Complaint against Defendant Hanseo University for causes of action arising out of an alleged failure to pay in connection with the Parties’ flight training agreement.

 

On November 2, 2022, Defendant/Cross-Complainant Hanseo University filed its Cross-Complaint against Plaintiff/Cross-Defendant M.I.AIR Corporation and against Cross-Defendants Hanseo USA, LLC and Han Gap-Su (a.k.a. Sebastian Han). The causes of action include breach of contract and claim and delivery (against M.I.AIR Corporation), claim and delivery (against Hanseo USA, LLC and Han Gap-Su), and conversion against (M.I.AIR Corporation, Hanseo USA, LLC, and Han Gap-Su).

 

On December 23, 2022, M.I.AIR Corporation and Han Gap-Su (“Cross-Defendants”) filed their Demurrer to the Cross-Complaint (“Demurrer”).

 

On February 6, 2023, Hanseo University (“Cross-Complainant”) filed its Opposition to Demurrer to Cross-Complaint (“Opposition”).

 

On February 14, 2023, Cross-Defendants filed their Reply to Defendant Hanseo University, an Unknown Foreign Business Entity’s, Opposition to Demurrer (“Reply”).

 

2.     Demurrer to Cross-Complaint

a.     Standard on 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. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

 

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 31.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50, subdivision (a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. Per Code of Civil Procedure section 430.10, subdivision (a), a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, a demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

 

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Fin. Corp. of Am. v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

 

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

 

b.     Meet and Confer

On December 23, 2022, Cross-Defendants filed their Declaration of Demurring or Moving Party Regarding Meet and Confer. The Declaration adequately establishes the Parties met and conferred prior to filing of the Demurrer. The Court will therefore rule on the Demurrer on its merits.

 

c.     Discussion

Cross-Defendants demur as to the Cross-Complaint on the following grounds: (i) that Cross-Complainant lacks standing to sue; (ii) that there is misjoinder of parties; (iii) that the second and third causes of action do not meet procedural requirements; and (iv) that the second, third, and fourth causes of action are deficiently pled. (Demurrer, pp. 7:16–17, 8:20–21, 9:25–26, 10:14–16, and 11:8–9.)

 

i.              Standing

“[T]he question of standing to sue is different from that of capacity.¿Incapacity is merely a legal disability, such as infancy or insanity, which deprives a party of the right to come into court.¿The right to relief, on the other hand, goes to the existence of a cause of action. . . . Where the complaint states a cause of action in someone, but not in the plaintiff, a general demurrer for failure to state a cause of action will be sustained.” (Parker v. Bowron (1953) 40 Cal.2d 344, 351.) 

 

Here, Cross-Defendants argue that Cross-Complainant lacks standing because the Cross-Complaint is silent as to ownership of the aircraft in question. (Demurrer, p. 8:6–16.) Yet Cross-Complainant has alleged among other things that “Cross-Defendants may have taken actions to convert Hanseo Korea’s [i.e., Cross-Complainant’s] property (the lease aircrafts) for their own use or benefit” and that “the Lease Aircrafts are owned by and belong to Hanseo Korea [i.e., Cross-Complainant].” (Cross-Complaint, ¶¶ 13, 32.) Cross-Complainant has made sufficient allegations of its property ownership to convey standing for its filing of the Cross-Complaint.

 

The Court OVERRULES the Demurrer on the grounds of standing.

 

ii.             Joinder of Parties

“All persons may be joined in one action as defendants if there is asserted against them:

(1) Any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or (2) A claim, right, or interest adverse to them in the property or controversy which is the subject of the action.” (Code Civ. Proc., § 379, subd. (a).) “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: . . . There is a defect or misjoinder of parties.” (Code Civ. Proc., § 430.10, subd. (d).)

           

            Here, Cross-Defendants argue that Cross-Complainant has improperly joined Cross-Defendant Han Gap-Su because: (1) the Cross-Complaint does not allege any wrongdoing by Cross-Defendant Han Gap-Su; (2) that even if the allegations in the Cross-Complaint were correct, Cross-Defendant Han Gap-Su did not act in a personal capacity; and (3) that the Cross-Complaint fails to sufficiently plead how Cross-Defendant Han Gap-Su converted the alleged property or how he would be personally liable for the alleged conversion of the property. (Demurrer, p. 9:8–21.)

 

            The Court disagrees with Cross-Defendants’ arguments. According to the Cross-Complaint, Cross-Defendant Han Gap-Su “was the sole operator, director and/or owner of M.I. Air and Hanseo USA any actions taken on behalf of Hanse USA were done by or through [Han Gap-Su].” (Cross-Complaint, ¶ 5.) The Cross-Complaint goes on to allege, among other things: (1) that Cross-Defendant Han Gap-Su and/or the other Cross-Defendants have possession and control of the subject airplanes; (2) that Cross-Defendant Han Gap-Su has entered into agreements regarding the subject airplanes; (3) that Cross-Defendant Han Gap-Su has failed to return Cross-Complainant’s property; and (4) that Defendant Han Gap-Su has acted fraudulently, willfully, maliciously, and with a conscious disregard for Cross-Complainant’s rights. (Cross-Complaint, ¶¶ 30–31, 56–57, 62.) Cross-Complainant has made sufficient allegations of Cross-Defendant Han Gap-Su’s actions and culpability to properly join him as a Cross-Defendant.

           

            The Court OVERRULES the Demurrer on the grounds of misjoinder.

 

iii.            Procedural Requirements

“Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property (created, most commonly, by a contractual lien) may recover possession of that specific property before judgment. (See current § 511.010 et seq. [Claim and Delivery of Personal Property].)” (Waffer Int’l Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271, emphasis omitted.)

 

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.” (Code Civ. Proc., § 512.010, subd. (a).)

 

Here, Cross-Defendants argue that the Demurrer must be sustained without leave to amend because Cross-Complainant has not followed the required procedure for claim and delivery. (Demurrer, p. 10:8–12.) But the statute permissively allows a plaintiff (or, as is the case here, a cross-complainant) to apply for a writ of possession at any time after filing the complaint (or, as is the case here, a cross-complaint). (Code Civ. Proc., § 512.010, subd. (a).) Thus, Cross-Complainant is not late and can still follow the applicable procedures.

 

            The Court OVERRULES the Demurrer on the grounds of failing to follow the procedural requirements for claim and delivery.

 

iv.            Claim and Delivery

The Court repeats here the standard provided above regarding claim and delivery.

 

Here, Cross-Defendants argue that the cause of action for claim and delivery is deficiently pleaded as to both Cross-Defendants. (Demurrer, p. 10:14–16.) However, Cross-Complainant has alleged: (1) that it owns the aircraft at issue; (2) that the aircraft were to be returned to Cross-Complainant upon termination of the Lease Agreement between the Parties; (3) that the Lease Agreement has since terminated; and (4) that the aircraft are currently in the possession or control of Cross-Defendants M.I.AIR Corporation, Hanseo USA, and Han Gap-Su. (Cross-Complaint, ¶¶ 48–49, 51–52, 57.) These allegations are sufficient to constitute a cause of action for claim and delivery against Cross-Defendants M.I.AIR Corporation and Han Gap-Su.

 

The Court OVERRULES the Demurrer on the grounds that the second and third causes of action for claim and delivery are deficiently pleaded.

 

v.             Conversion

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) 

 

Here, Cross-Defendants argue that the cause of action for conversion is deficiently pleaded as to both Cross-Defendants. (Demurrer, p. 11:8–10.) However, Cross-Complainant has alleged: (1) that Cross-Complainant owns the aircraft; (2) that Cross-Defendants converted the aircraft for Cross-Defendants’ use and benefit; and (3) that Cross-Complainant has been damaged by this conversion. (Cross-Complaint, ¶¶ 60–61.) These allegations are sufficient to constitute a cause of action for conversion against Cross-Defendants M.I.AIR Corporation and Han Gap-Su.

 

The Court OVERRULES the Demurrer on the grounds that the fourth cause of action for conversion is deficiently pleaded.

 

3.     Conclusion

Cross-Defendant’s Demurrer is OVERRULED.

 

Cross-Defendants are ordered to give notice.

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.