Judge Robert B. Broadbelt, Case Number: 24STCV22915, Date: 2025-04-15 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 24STCV22915, Date: 2025-04-15 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

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

The court (1) grants defendant Joshua Kim’s request for judicial notice of fact numbers 1-4, as set forth in the Restraining Order After Hearing (Order of Protection), and (2) takes judicial notice of the existence of the Restraining Order After Hearing (Order of Protection). (Evid. Code, § 452, subd. (d); South Lake Tahoe Property Owners Group v. City of South Lake Tahoe (2023) 92 Cal.App.5th 735, 751 [court may take judicial notice of orders, findings of facts and conclusions of law, and judgments within court records].)

The court denies defendant Joshua Kim’s request for judicial notice of fact number 5 because the subject court order does not include a finding of that fact. (Evid. Code, § 452, subd. (d); South Lake Tahoe Property Owners Group, supra, 92 Cal.App.5th at p. 751.)

Plaintiff Peter Yong Kim (“Plaintiff”) filed this action against defendant Joshua Kim, a/k/a Sung Joon Kim (“Defendant”) on September 5, 2024. The Complaint alleges six cause of action for (1) conversion by way of identity theft; (2) receiving stolen property; (3) resulting trust; (4) constructive trust; (5) unjust enrichment; and (6) injunctive relief.

Defendant now moves the court for an order (1) sustaining his demurrer to each cause of action alleged in Plaintiff’s Complaint, and (2) striking from the Complaint the request for punitive damages and supporting allegations.

The court overrules Defendant’s demurrer to each cause of action on the ground of uncertainty because the Complaint is not ambiguous or unintelligible and therefore is not uncertain. (Code Civ. Proc., § 430.10, subd. (f).)

The court notes, as a threshold matter, that Defendant has asserted that this action is litigation abuse in the context of domestic violence. (Notice of Dem., p. 3:20-27.) The court has taken judicial notice of the existence of the Restraining Order After Hearing (Order of Protection) issued on August 11, 2021 and in effect until August 11, 2026, which (1) names as protected persons Christina Kim, Defendant, and Su Jin Kim, (2) names as the restrained person Plaintiff, and (3) orders that Plaintiff must not, inter alia, contact the protected people directly or indirectly or disturb the peace. (RJN Ex. A, ¶¶ 1-4, 6.) The court further acknowledges, as Defendant has raised, that in Family Code section 6309, the Legislature has recognized that “[d]omestic violence survivors who enter the family or civil court systems seeking protection often face ongoing abuse in the form of litigation abuse.” (Fam. Code, § 6309, subd. (a)(1)(C).) The court takes seriously the risk of litigation abuse. However, Defendant did not cite authority, in his moving papers, establishing that the existence or violation of the Restraining Order After Hearing (Order of Protection) prevents Plaintiff from maintaining this action against Defendant.[1]

The court overrules Defendant’s demurrer to the first cause of action for conversion by way of identity theft because it states facts sufficient to constitute a cause of action since Plaintiff has sufficiently alleged facts establishing (1) Plaintiff’s ownership rights to the $46,050 in Plaintiff’s EDD account (Compl., ¶¶ 9-10), (2) Defendant’s conversion of that sum by the wrongful act of theft (Compl., ¶¶ 10, 13), and (3) damages from the loss of those funds (Compl., ¶ 14). (Code Civ. Proc., § 430.10, subd. (e); Lee v. Hanley (2015) 61 Cal.4th 1225, 1240 [elements of conversion].)

The court overrules Defendant’s demurrer to the second cause of action for receiving stolen property because (1) Defendant has not met his burden (i) to show that it does not state facts sufficient to constitute a cause of action on the ground that Plaintiff abandoned the subject property since (A) although the Restraining Order After Hearing includes an order that the petitioner, i.e., Christina Kim, was granted exclusive use of the residence located at 400 S. Lafayette Park Place, Apartment 111 (the location from which Defendant is alleged to have taken Plaintiff’s property (Compl., ¶ 18)), Defendant did not cite authority to establish that Plaintiff’s failure to take that property constitutes abandonment thereof and therefore cannot constitute the stolen property that is the subject of this cause of action, and (B) this cause of action also appears to be based on the alleged receipt of Plaintiff’s EDD funds (Compl., ¶ 20), which Defendant did not address, and (ii) to show that it does not state facts sufficient to constitute a cause of action on the ground that it is necessarily barred by the statute of limitations, and (2) it states facts sufficient to constitute a cause of action since Plaintiff has alleged facts establishing (i) that Plaintiff’s property was stolen (Compl., ¶¶ 18, 20), (ii) that Defendant received, withheld, and concealed from Plaintiff the subject property and EDD funds (Compl., ¶ 20), and (iii) Defendant knew that the property was stolen (Compl., ¶ 21). (Code Civ. Proc., § 430.10, subd. (e); Raja Development Co., Inc. v. Napa Sanitary District (2022) 85 Cal.App.5th 85, 92 [“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred”] [internal quotation marks omitted]; Pen. Code, § 496, subd. (a); Finton Construction, Inc. v Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 213 [elements of claim under Penal Code section 496]; Switzer v. Wood (2019) 35 Cal.App.5th 116, 119 [“Although section 496 defines a criminal offense, it also provides an enhanced civil remedy in the event there has been a violation of the statute . . . .”].)

The court sustains Defendant’s demurrer to the third cause of action for resulting trust because it does not state facts sufficient to constitute a cause of action since (1) “[a] resulting trust arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest[,]” and (2) Plaintiff has not alleged facts establishing the creation of a resulting trust based on the circumstances alleged in the Complaint. (Code Civ. Proc., § 430.10, subd. (e); Lloyd’s Bank California v. Wells Fargo Bank (1986) 187 Cal.App.3d 1038, 1042; Laing v. Laubach (1965) 233 Cal.App.2d 511, 515 [“‘A resulting trust arises when the legal estate is transferred under such circumstances that the intent appears, or is inferred, that the beneficial interest should not be enjoyed with the legal title’”].)

The court overrules Defendant’s demurrer to the fourth cause of action for constructive trust because it states facts sufficient to constitute a cause of action since Plaintiff has alleged facts establishing (1) Plaintiff’s right to the property that is the subject of this action (Compl., ¶¶ 8, 18, 20, 32), and (2) Defendant’s acquisition of that property by the wrongful act of theft (Compl., ¶ 32). (Code Civ. Proc., § 430.10, subd. (e); Optional Capital, Inc. v. DAS Corp. (2014) 222 Cal.App.4th 1388, 1402 [“A constructive trust ‘may be imposed in practically any case where there has been a wrongful acquisition or detention of property to which another is entitled, but the party attempting to establish the constructive trust must establish the claim by clear and convincing evidence’”].)

The court overrules Defendant’s demurrer to the fifth cause of action for unjust enrichment because (1) there is a split in authority regarding the characterization of unjust enrichment as a cause of action, and (2) Plaintiff has alleged facts sufficient to constitute a cause of action for unjust enrichment since he has alleged that Defendant has received the benefit of Plaintiff’s property and funds at the expense of Plaintiff (Compl., ¶¶ 8, 18, 20, 35). (Code Civ. Proc., § 430.10 subd. (e); Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769 [“The elements for a claim of unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another”] [internal quotation marks omitted]; Sepanossian v. National Ready Mix Company, Inc. (2023) 97 Cal.App.5th 192, 206 [“As an initial matter, ‘[t]here is no cause of action in California labeled “unjust enrichment”’”].)

The court sustains Defendant’s demurrer to the sixth cause of action for injunctive relief because (1) “‘[i]njunctive relief is a remedy, not a cause of action[,]’” and (2) Plaintiff has not identified a cause of action pursuant to which he may obtain injunctive relief. (Code Civ. Proc., § 430.10, subd. (e); Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734.)

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. v. Parth (2016) 248 Cal.App.4th 268, 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 Plaintiff has not met his burden to articulate how he can amend his third and sixth causes of action to render them sufficient and therefore sustains Defendant’s demurrer to those causes of action without leave to amend.

Defendant moves the court for an order striking from the Complaint Plaintiff’s requests for punitive damages, set forth in (1) paragraphs 15 and 27 of the Complaint, and (2) paragraph 7 of the prayer. Defendant also appears to request, in his memorandum of points and authorities, an order striking Plaintiff’s requests for treble damages and attorney’s fees pursuant to Penal Code section 496.[2]

First, the court grants Defendant’s motion to strike the requests for punitive damages because, although Plaintiff has alleged facts sufficient to constitute a claim for conversion, Plaintiff did not allege facts establishing that Defendant is guilty of malice, oppression, or fraud. (Code Civ. Proc., § 436; Civ. Code, § 3294, subds. (a), (c); Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 716 [“Something more than the mere commission of a tort is always required for punitive damages”] [internal quotation marks omitted].)

Second, the court denies Defendant’s motion to strike Plaintiff’s requests for treble damages and attorney’s fees pursuant to Penal Code section 496 because the court has found, for the reasons set forth above, that Plaintiff has stated facts sufficient to constitute a cause of action under Penal Code section 496, such that Plaintiff’s requests for treble damages and attorney’s fees pursuant to that statute are not improper. (Code Civ. Proc., § 436; Pen. Code, § 496, subd. (c) [allowing for recovery of three times the amount of actual damages and attorney’s fees].)

The court overrules defendant Joshua Kim’s demurrer to plaintiff Peter Yong Kim’s first, second, fourth, and fifth causes of action.

The court sustains defendant Joshua Kim’s demurrer to plaintiff Peter Yong Kim’s third cause of action for resulting trust and sixth cause of action for injunctive relief without leave to amend.

The court grants defendant Joshua Kim’s request to strike plaintiff Peter Yong Kim’s request for punitive damages with leave to amend.

The court grants plaintiff Peter Yong Kim 20 days leave to file a First Amended Complaint that cures the defects in the request for punitive damages set forth in this order.

[1] Family Code section 6309 reflects the intent of the Legislature “[t]o provide for separation and to prevent future acts of domestic violence by streamlining any domestic violence restraining order discovery to expedite the adjudication of requests for restraining orders and prevent abusive litigation tactics that interfere with legislative intent to protect domestic violence victims[,]” and therefore sets forth limitations on discovery. (Fam. Code, § 6309, subds. (a)(2)(C), (b), (c).)

[2] Defendant’s notice of motion does not request this relief. (Notice of Mot., p. 2:2-6.) However, the court has exercised its discretion to overlook that omission since the memorandum of points and authorities clearly requests such an order. (Memo., p. 6:2-7; Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 909 [“‘As a general rule, the trial court may consider only the grounds stated in the notice of motion. [Citations.] An omission in the notice may be overlooked if the supporting papers make clear the grounds for relief sought’”].)

peter yong kim ; Plaintiff, vs. joshua kim a/k/a sung joon kim , et al.; Defendants.	Case No.:	24STCV22915

	Hearing Date:	April 15, 2025

	Time:	10:00 a.m.

	[tentative] Order RE: (1) defendant’s demurrer to complaint (2) defendant’s motion to strike portions of complaint