Judge Peter A. Hernandez, Case Number: 23PSCV01436, Date: 2023-08-24 Tentative Ruling

Plaintiffs/Cross-Defendants Wanda Moving, Inc.’s and 2Cube Global Inc.’s Demurrer to Cross-Complaint is SUSTAINED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

Plaintiffs Wanda Moving, Inc. (“WMI”) and 2Cube Global Inc. (“2Cube”) (together, “Plaintiffs”) allege as follows:

Plaintiffs are in the business of providing logistics and warehousing services for imports of goods from China to the United States. 2Cube acts as a “3PL” or third party logistics provider for WMI by procuring transportation services for delivery orders received by WMI. Xiaojun Xu (“Xu”) was hired by 2Cube as a truck driver to deliver various goods to customers. From approximately January 2023 to present, Xu conspired with Pak Ho Lo (“Lo”), Swap Meet Depot (“SWAP”), MMS Depot (“MMS”) by stealing a portion of goods belonging to Plaintiffs from each delivery and delivering same to a warehouse in El Monte where SWAP and MMS are located.

On June 22, 2023, Lo and SWAP filed a cross-complaint, asserting causes of action against Chaoseng Zhao, Shengdong Zhao (“S. Zhao”), Liming Wang, 2Cube, Zexing Zhao (“Z. Zhao”), WMI and Does 1-200 for:

On August 22, 2023, Plaintiffs filed a First Amended Complaint, asserting causes of action against Xu, Lo, SWAP, MMS and Does 1-200 for:

On August 24, 2023, an “Order Re: Defendants’ Contempt for Defendants’ Failure to Abide by this Court’s May 24, 2023 and July 10, 2023 Orders” was entered.

On September 26, 2023, Intelligent Express Inc. (“Intelligent”) and Xu filed a cross-complaint, asserting causes of action against WMI, 2Cube, Derb Inc. and Does 1-50 for:

On November 30, 2023, the court granted WMI’s, 2Cube’s, S. Zhao’s and Z. Zhao’s Special Motion to Strike Lo’s and SWAP’s cross-complaint.

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or are uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

WMI and 2Cube demur, per Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the first through fourth causes of action in Intelligent’s and Xu’s cross-complaint, on the basis that they fail to state facts sufficient to constitute causes of action and are uncertain.

At the outset, the court notes that the instant demurrer was originally set for hearing on January 2, 2024; on that date, the court continued the hearing to January 23, 2024 based on counsel’s competing declarations regarding whether an adequate meet and confer had transpired and instructed moving party’s counsel to file a declaration in compliance with Code of Civil Procedure § 430.41 “at least nine court days prior to the continued hearing date” (i.e., January 9, 2023).

On January 10, 2024, WMI and 2Cube filed the “Declaration of Heidi M. Cheng in Support of Cross-Defendants Wanda Moving Inc. and 2Cube Global Inc.’s Demurrer to Cross-Complaint.” Although the declaration is untimely, the court is satisfied that sufficient meet and confer efforts have now transpired. The court will proceed to the merits of the demurrer.

First and Fourth Causes of Action (i.e., Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing, Respectively)

WMI and 2Cube assert that Intelligent and Xu have not adequately pled the existence of a written contract by alleging either its terms or legal effect.

Intelligent and Xu have alleged that Intelligent, a trucking company operated by Xu (Cross-Complaint, ¶ 14), had an oral contract with WMI and 2Cube (Id., ¶ 15); that Intelligent’s and Xu’s oral contract with WMI and 2Cube began in 2022 (Id., ¶ 16), wherein Intelligent would make various trailer deliveries for WMI and 2Cube (Id., ¶ 17) and that, between January 2023 and February 2023, WMI and 2Cube failed to pay Intelligent for deliveries that had already been made (Id., ¶ 19). Intelligent and Xu have also alleged that WMI and 2Cube entered into “a series of agreements” with Intelligent and Xu to hire Intelligent and Xu for delivery services (Id., ¶ 60), which were “documented with invoices and WeChat messages” (Id., ¶ 62); that WMI and 2Cube timely made multiple deliveries from the period of January 2023 to February 2023 (Id., ¶ 61) and that WMI and 2Cube failed to pay Intelligent and Xu “in the full amount of the oral contract.” (Id., ¶¶ 65).

The above allegations indicate that Intelligent and Xu have not, in fact, alleged any written contract. It is unclear, however, based on the above allegations how many oral contracts Intelligent and Xu allege existed, the parties to same and the terms of same.[2] No translation has been provided for portions of the WeChat messages (which are in large part illegible) attached as Exhibit D and various Bills of Lading attached as Exhibit E to the cross-complaint, which is in violation of California Rules of Court rule 3.1110, subdivision (g) (i.e., “[e]xhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter”).

WMI’s and 2Cube’s demurrer to the first and fourth causes of action, then, is sustained.

“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 [internal quotations and citation omitted]).

Intelligent and Xu have alleged that they had a right to possess $53,500 “for the service rendered and confiscated trailer.” (Cross-Complaint, ¶ 68). However, “the simple failure to pay money owed does not constitute conversion. A cause of action for conversion of money can be stated only where a defendant interferes with the plaintiff's possessory interest in a specific, identifiable sum.” (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 284). Intelligent and Xu, moreover, do not seek to recoup the trailer itself but to be paid monies for it.

WMI and 2Cube assert that Intelligent’s and Xu’s third cause of action fails because it is predicated on the same alleged conduct that is the subject of Intelligent’s and Xu’s other, failed causes of action. The court agrees.

[1] The demurrer was filed (and served via email) on November 29, 2023 and originally set for hearing on January 2, 2024. On January 2, 2024, the court continued the hearing to January 23, 2024. On January 2, 2024, moving party filed (and served via mail and email) a “Notice of Ruling,” advising therein of the new January 23, 2024 hearing date.

[2] Intelligent and Xu, moreover, now state that “Intelligent. . . had an oral contract and series of written agreements with [WMI] and 2Cube” (Opp., 3:22-23).