Judge: Nick A. Dourbetas, Case: 2022-01242154, Date: 2022-11-04 Tentative Ruling

1. Demurrer to Amended Complaint
2. Demurrer to Cross-Complaint

3. Case Management Conference

Motion No. 1:

Defendant Yao Geng’s Demurrer to Plaintiff’s First Amended Complaint (“FAC”) is OVERRULED in part, and SUSTAINED in part. (See Code Civ. Proc. 430.10, subd. (e).)

The demurrer as to the 1st-3rd causes of action is overruled. The FAC states facts sufficient to state a cause of action.

The demurrer to the fourth cause of action is sustained without leave to amend. Constructive trust is a remedy, not a free standing cause of action. (See Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1023 fn. 3.) The demurrer is sustained with leave to allege this remedy in connection with an appropriate cause of action.

The demurrer to the 5th cause of action is sustained with leave to amend. The FAC fails to allege facts showing that defendant engaged in fraud or unlawful conduct. While allegations of breaching a contract and converting funds may be “unfair,” this is private dispute between two individuals and is not tethered to a legislatively declared policy or have an actual or threatened impact upon competition. (See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Company (1999) 20 Cal.4th 163, 186-87. )

Plaintiff to file an amended complaint within 15 days.

All requests for judicial notice are denied.

The parties are advised that the Court will not consider late filings in the future.

Defendant is ordered to give notice.

Motion No. 2:

Cross-defendant Shasha Wang’s Demurrer to the Cross-complaint is OVERRULED in its entirety. (See Code Civ. Proc. § 430.10, subd. (e) & (f).)

The Cross-complaint is not so poorly drafted that Defendant cannot reasonably respond.  (See Khoury v. Maly’s of California Inc. (1993) 14 Cal.App.4th 612, 616.) Thus, the demurrer on the grounds of uncertainty is overruled.

The general demurrer as to the 1st – 4th causes action are overruled as the cross-complaint states facts sufficient to state a cause of action.

Cross-defendant’s demurrer is based upon records are not before the court, as the court’s records do not include copies of the same or a request for judicial notice.

Cross-defendant is to respond, if at all, to the cross-complaint within 15 days.

The parties are advised that the Court will not consider late filings in the future.

Cross-defendant is ordered to give notice.