Judge Robert B. Broadbelt, Case Number: 24STCV04935, Date: 2024-10-17 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 24STCV04935, Date: 2024-10-17 Tentative Ruling

The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

Defendants Ju Yu Kim (“Kim”), Roy Chang (“Chang”), and Gina Han (“Han”) (collectively, “Defendants”) move the court for an order sustaining their demurrer to each cause of action alleged against them by plaintiffs Pastor Victor Chey and T.A. Chey (“Plaintiffs”) in their Complaint on the ground that they do not state facts sufficient to constitute causes of action and are uncertain.

The court sustains defendants Chang and Han’s demurrer to the first cause of action for financial elder abuse because it does not state facts sufficient to constitute a cause of action against those defendants since Plaintiffs have not alleged specific facts establishing that they assisted in taking, secreting, appropriating, or obtaining the personal property of decedent Geroge Chey (“Decedent”) for a wrongful use or with intent to defraud. (Code Civ. Proc., § 430.10, subd. (e); Wel. & Inst. Code, § 15610.30, subd. (a)(2); Compl., p. 25:9-16 [alleging, in conclusory fashion, that defendants Chang and Han acted in concert and came into a mutual understanding to accomplish their unlawful plan]; Travelers Indemnity Company of Connecticut v. Navigators Specialty Insurance Company (2021) 70 Cal.App.5th 341, 358 [court does not assume the truth of contentions, deductions, or conclusions of law].)

The court overrules defendant Kim’s demurrer to the first cause of action for financial elder abuse because it states facts sufficient to constitute a cause of action since Plaintiffs have alleged facts establishing that Kim took the personal property of Decedent, an elder, for a wrongful purpose by using Decedent’s credit card for “lavish dinner parties in the thousands” and to pursue “her own legal ends with Han & Park . . . as she began her scheme to take [Decedent’s] properties.” (Code Civ. Proc., § 430.10, subd. (e); Compl., p. 6, ¶ 22 [alleging that Kim married Decedent while Decedent was in his 80s], p. 23, ¶ 16 [incorporating prior allegations], ¶ 18, p. 19, ¶¶ 98-102 [alleging use of Decedent’s credit card without his knowledge]; Wel. & Inst. Code, §§ 15610.27 [defining elder to be any person residing in California that is 65 years of age or older], 15610.30, subds. (a)(1), (a)(3) [defining financial elder abuse]; Dem., p. 8:1-4 [demurring to this cause of action only on the ground that Plaintiffs did not allege facts showing that Defendants took Decedent’s property].)

The court sustains Defendants’ demurrer to the second cause of action for interference with right to inherit because it does not state facts sufficient to constitute a cause of action since, although California has recognized the tort of intentional interference with expected inheritance, it “is only available when the aggrieved party has essentially been deprived of access to the probate system[,]” and Plaintiffs have not alleged that they were so deprived and do not have an adequate remedy in the Probate Court. (Code Civ. Proc., § 430.10, subd. (e); Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1053 [“the tort of IIEI is only available when the aggrieved party has essentially been deprived of access to the probate system”].)

The court sustains defendant Kim’s demurrer to the third cause of action for constructive fraud because (1) it does not state facts sufficient to constitute a cause of action since Plaintiffs have not alleged specific facts establishing each element of fraud with the requisite particularity, and (2) it is ambiguous and unintelligible and therefore uncertain since Plaintiffs have alleged that Kim (i) “used the confidence placed in her by Plaintiff Geroge[,]” which appears to be referring to Decedent, who is not a plaintiff in this action, and (ii) “threatened Plaintiffs that he would be alone with no one to care for him[,]” which again appears to refer to conduct or statements made to Decedent despite the inclusion of “Plaintiffs,” such that it is unclear to whom Kim’s alleged conduct was directed. (Code Civ. Proc., § 430.10, subds. (e), (f); Compl., p. 29, ¶¶ 51-52 [emphasis added]; Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131 [elements of constructive fraud]; Lauckhart v. El Macero Homeowners Assn. (2023) 92 Cal.App.5th 889, 903 [“Fraud must be pleaded with particularity. General and conclusory allegations are inadequate”].)

The court sustains Defendants’ demurrer to the fourth cause of action for fraud and deceit because it does not state facts sufficient to constitute a cause of action since (1) to the extent that it is alleged against defendants Chang and Han, Plaintiffs did not allege facts establishing each element of the cause of action against them, and (2) Plaintiffs have not alleged, with the requisite particularity, the (i) alleged misrepresentations made by defendant Kim to Plaintiffs, (ii) her knowledge of the misrepresentations’ falsity, (iii) her intent to induce Plaintiffs’ reliance thereon, (iv) Plaintiffs’ justifiable and actual reliance, and (v) Plaintiffs’ resulting damage. (Code Civ. Proc., § 430.10, subd. (e); Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1245 [elements of intentional misrepresentation]; Lauckhart, supra, 92 Cal.App.5th at p. 903.)

The court further notes that this cause of action does not clearly identify the defendants against whom this cause of action is brought. (Compl., p. 29:25 [alleging, without specification, “Count 4 – Fraud and Deceit].) Although Plaintiffs have alleged that defendant Kim committed fraud in the allegations supporting this cause of action, it is unclear whether Plaintiffs have alleged this cause of action against any other defendants. (Compl., p. 30:5-7.) The court therefore sustains Defendants’ demurrer to this cause of action on the ground of uncertainty because it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10, subd. (f).)

The court sustains Defendants’ demurrer to the fifth cause of action for conspiracy to defraud and undue influence because it does not state facts sufficient to constitute a cause of action since (1) Plaintiffs did not allege facts establishing the formation and operation of a conspiracy, and (2) even if Plaintiffs did allege the formation and operation of a conspiracy, Plaintiffs did not allege facts sufficient to constitute the underlying tort of fraud for the reasons set forth above. (Code Civ. Proc., § 430.10, subd. (e); Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1291 [explaining that civil conspiracy is not an independent cause of action, but a theory of co-equal liability, and requires “the actual commission of a tort”].)

The court sustains Defendants’ demurrer to the sixth cause of action for breach of fiduciary duty because it is ambiguous and unintelligible and therefore uncertain because (1) it states that it is alleged “against Defendants and Defendant Han & Park” but (2) it does not appear to allege facts establishing that Defendants breached fiduciary duties to Plaintiffs, and instead appears to concern the conduct of defendant Han & Park only. (Code Civ. Proc., § 430.10, subd. (f); Compl., p. 33:20-21; Compl., p. 33, ¶ 92 [alleging that defendants Mr. Han, Ms. Park, and Han & Park owed a fiduciary duty to Decedent].)

The court sustains defendant Kim’s demurrer to the eighth cause of action for fraudulent concealment because it does not state facts sufficient to constitute a cause of action since Plaintiffs have not alleged facts, with the requisite particularity, establishing that Kim concealed or suppressed a material fact that she had a duty to disclose to Plaintiffs, with the intent to defraud Plaintiffs, and that caused Plaintiffs harm. (Code Civ. Proc., § 430.10, subd. (e); Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162 [elements of fraudulent concealment].)

The court sustains Defendants’ demurrer to the ninth cause of action for economic duress because (1) it does not state facts sufficient to constitute a cause of action because economic duress is a defense to the enforcement of a contract but is not an affirmative cause of action, and (2) it is ambiguous and unintelligible and therefore uncertain. (Code Civ. Proc., § 430.10, subds. (e), (f); Perez v. Uline, Inc. (2007) 157 Cal.App.4th 953, 950 [applying economic duress to set aside settlement agreement].)

The court sustains Defendants’ demurrer to the 10th cause of action for intentional misrepresentation because it does not state facts sufficient to constitute a cause of action since (1) to the extent it is alleged against defendants Chang and Han, Plaintiffs have not alleged any misrepresentations made to them by those defendants, and (2) Plaintiffs have not alleged, with the requisite particularity, facts establishing that (i) Kim made misrepresentations to Plaintiffs (ii) with the intent to induce Plaintiffs’ reliance thereon, and (iii) Plaintiffs reasonably and justifiably relied on the misrepresentations made by defendant Kim. (Code Civ. Proc., § 430.10, subd. (e); Aton Center, Inc., supra, 93 Cal.App.5th at p. 1245 [elements of intentional misrepresentation].) The court notes that, for example, Plaintiffs have alleged that they “relied on Defendant [Kim] that she was taking good care of his father.” (Compl., p. 39, ¶ 122.) However, this fact does not allege that Kim represented that she would be caring for Plaintiffs’ father, and instead alleges that Plaintiffs relied on Kim to take care of their father. (Ibid.) Moreover, even if the court were to construe the Complaint as alleging that Kim made such a misrepresentation, Plaintiffs did not allege that Kim intended Plaintiffs to rely on that misrepresentation and that Plaintiffs actually and justifiably relied on it.

The court sustains Defendants’ demurrer to the 11th cause of action for promissory fraud because it does not state facts sufficient to constitute a cause of action since (1) to the extent it is alleged against defendants Chang and Han, Plaintiffs have not alleged that those defendants made promises regarding material facts without any intention of performing them to Plaintiffs, and (2) Plaintiffs did not allege specific facts establishing (i) that Kim made a promise regarding a material fact without any intention of performing it, (ii) Kim’s intent not to perform the promise at the time it was made, (iii) Kim’s intent to deceive Plaintiffs, and (iv) Plaintiffs’ reasonable reliance.[1] (Code Civ. Proc., § 430.10, subd. (e); Missakian v. Amusement Industry, Inc. (2021) 69 Cal.App.5th 630, 654 [elements of promissory fraud].)

The court sustains Defendants’ demurrer to the 12th cause of action for intentional infliction of emotional distress because it does not state facts sufficient to constitute a cause of action against Defendants. (Code Civ. Proc., § 430.10, subd. (e).)

First, as to defendants Chang and Han, Plaintiffs did not allege facts establishing that they engaged in extreme and outrageous conduct by failing to allege facts regarding their conduct in support of this cause of action. (Compl., p. 42, ¶ 138 [alleging that defendant Kim’s behavior was extreme and outrageous].)

Second, as to defendant Kim, the court finds that Plaintiffs have not alleged facts establishing that she directed extreme and outrageous conduct at Plaintiffs. The court acknowledges that Plaintiffs have alleged facts regarding her treatment of Decedent, including that she elected not to call 911 when Decedent “lay on the ground unable to move.” (Compl., p. 7, ¶ 30, p. 8, ¶¶ 32-33.) However, the extreme and outrageous conduct “must be conduct directed at the plaintiff, or occur in the presence of the plaintiff of whom the defendant is aware.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273 [internal quotation marks and citation omitted] [emphasis in original].) Here, Plaintiffs have not alleged facts establishing that defendant Kim engaged in extreme and outrageous conduct directed at them, and therefore has not alleged facts sufficient to constitute a cause of action for intentional infliction of emotional distress. (Ibid.)

The court sustains Defendants’ demurrer to the 13th cause of action for civil conspiracy because it does not state facts sufficient to constitute a cause of action since (1) Plaintiffs did not allege facts establishing the formation and operation of a conspiracy, and (2) even if Plaintiffs did allege the formation and operation of a conspiracy, Plaintiffs did not allege facts sufficient to constitute the underlying tort of fraud for the reasons set forth above. (Code Civ. Proc., § 430.10, subd. (e); Navarrete, supra, 237 Cal.App.4th at p. 1291; Compl., p. 43, ¶ 147 [alleging the underlying tort to be “criminal fraud and financial abuse”].)

The court sustains Defendants’ demurrer to the 15th cause of action for promissory estoppel because it does not state facts sufficient to constitute a cause of action since (1) as to defendants Chang and Han, Plaintiffs did not allege any facts regarding their conduct, and (2) as to defendant Kim, Plaintiffs did not allege specific facts establishing that she made clear and unambiguous promises to Plaintiffs, on which they reasonably and foreseeably relied, and that they suffered injury as a result thereof. (Code Civ. Proc., § 430.10, subd. (e); Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945 [elements of promissory estoppel claim]; Compl., p. 44, ¶ 162 [generally alleging that Plaintiffs relied on defendant Kim’s promises].)

The court sustains Defendants’ demurrer to the 17th cause of action for interference with prospective business advantage because it does not state facts sufficient to constitute a cause of action since (1) as to defendants Chang and Han, Plaintiffs have not alleged any facts describing their alleged wrongful acts or omission in support of this cause of action; (2) Plaintiffs have not alleged facts establishing each element of the tort of intentional interference with prospective business advantage; and (3) to the extent that Plaintiffs are again attempting to allege a cause of action for financial elder abuse, Plaintiffs have already alleged facts sufficient to constitute that cause of action against defendant Kim, such that this cause of action is duplicative and superfluous. (Code Civ. Proc., § 430.10, subd. (e); Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512 [elements of intentional interference with prospective economic advantage]; Compl., p. 46, ¶¶ 170-174 [alleging financial elder abuse]; Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [duplicative causes of action may be a basis for sustaining a demurrer].)

The court sustains Defendants’ demurrer to the 18th cause of action for declaratory and injunctive relief because it does not state facts sufficient to constitute a cause of action since Plaintiffs have not requested that the court issue “a declaration of [their] rights or duties with respect to” Defendants or with respect to property. (Code Civ. Proc., §§ 430.10 subd. (e), 1060.)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc., supra, 248 Cal.App.4th at p. 290.) To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The court finds that Plaintiffs have not met their burden to show how they can amend (1) each cause of action to render it sufficient against defendants Chang and Han, and (2) the second through sixth, eighth through 13th, 15th, 17th, and 18th causes of action as alleged against defendant Kim. The court therefore sustains the demurrer as to those causes of action without leave to amend.

The court denies Defendants’ request for monetary sanctions against Plaintiffs because Defendants did not comply with the safe harbor provision since Defendants served the demurrer on Plaintiffs on the same day that they filed it with the court. (Code Civ. Proc., § 128.5, subd. (f)(1)(B) [“If the alleged action or tactic is . . . the filing and service of a complaint . . . that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected”]; Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 551 [“Failure to comply with the safe harbor provisions ‘precludes an award of sanctions’”]; Demurrer, pp. 53-54 [proof of service of demurrer on Plaintiffs on April 15, 2024].)

The court denies Plaintiffs’ request for monetary sanctions against Defendants. (Opp., p. 21:14-15 [requesting the court overrule the demurrer and order Defendants to pay monetary sanctions].)

The court overrules defendant Ju Yun Kim’s demurrer to plaintiffs Pastor Victor Chey and T.A. Chey’s first cause of action for financial elder abuse.

The court sustains defendant Ju Yun Kim’s demurrer to plaintiffs Pastor Victor Chey and T.A. Chey’s second through sixth, eighth through 13th, 15th, 17th, and 18th causes of action without leave to amend.

The court sustains defendants Roy Chang and Gina Han’s demurrer to plaintiffs Pastor Victor Chey and T.A. Chey’s Complaint without leave to amend.

The court orders defendants Roy Chang and Gina Han to prepare, serve, and lodge a proposed judgment of dismissal as to those defendants no later than 10 days from the date of this order. (Code Civ. Proc., § 581, subd. (f)(1).)

The court orders defendant Ju Yun Kim to file an answer to plaintiffs Pastor Victor Chey and T.A. Chey’s Complaint no later than 10 days from the date of this order.

The court orders defendants Ju Yun Kim, Roy Chang, and Gina Han to give notice of this ruling.

[1] The court notes that Plaintiffs have alleged that defendant Kim received a total of $585,00 in loans that she has not paid back, and that “[t]he Trust needs these funds back.” (Compl., p. 40, ¶ 129 [emphasis added].) While Plaintiffs appear to have alleged that they are co-trustees of Decedent’s trust, they have brought this action in their capacities as individuals, and not as trustees. (Compl., p. 6, ¶ 25; Compl., p. 2:5 [defining Plaintiffs to be “Pastor Victor Chey and Timothy Chey”].)

pastor victor chey , et al.; Plaintiffs, vs. ju yun kim , et al.; Defendants.	Case No.:	24STCV04935

	Hearing Date:	October 17, 2024

	Time:	10:00 a.m.

	[tentative] Order RE: defendants’ demurrer to complaint