Judge Robert S. Draper, Case 21STCV31582 2023-05-15 Tentative Ruling

Judge: Robert S. Draper, Case: 21STCV31582, Date: 2023-05-15 Tentative Ruling

Case Number: 21STCV31582 Hearing Date: May 15, 2023 Dept: 78

Department 78, Stanley Mosk

May 15, 2023

21STCV31582

Motion for Judgment on the Pleadings filed by Defendant Hyun John Oh

DECISION

All parties to the motion are ordered to appear (remotely or in person) at the hearing.

Moving Party Defendant Hyun John Oh is ordered to file proof of service of the motion on both Plaintiff and Co-Defendant Woo Yeon Lee in advance of the hearing date.

Since Defendant Oh’s motion for judgment on the pleadings is procedurally improper, the Court regards it instead as a demurrer to Plaintiff’s FAC.

The Court sustains the demurrer.

At the hearing, the Court wishes to hear from Plaintiff on the issue of leave to amend as Plaintiff filed no opposition to the motion.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

Discussion

Factual Background

The Court accepts the allegations in plaintiff’s FAC as true for the purpose of evaluating the pleading’s sufficiency.

According to Plaintiff, she and Defendants “agreed to form a partnership to purchase” a property at 444 S. Gramercy Place, #26, in Los Angeles (the “Subject Property”) on July 1, 2020. (FAC, p.3, ¶¶ BC-1 and BC-2.) Defendant Lee “named only herself, managing partner, on the property title for the purpose of efficiently managing the partnership property.” (Id., p.3, ¶ BC-1.) She then “chang[ed] her role to that of holding the Subject Property for her personal use and benefit.” (Id., p. 3, ¶ BC-2.) Plaintiff claims Defendants occupied the Subject Property rent-free, failed to disclose financial information to the partnership, and wrongfully excluded Plaintiff from partnership business. (Ibid.)

Plaintiff Jinhee Cho sued Defendant Woo Yeon Lee on August 26, 2021 for breach of contract and common counts. Plaintiff filed the operative first amended complaint on October 5, 2022 against Defendant Lee and Does 1 through 10. The FAC lists three causes of action: breach of contract, common counts, and breach of fiduciary duty. Plaintiff seeks $169,000 plus interest in actual damages, $400,000 in punitive damages, and attorneys’ fees according to proof. The first amended complaint attaches a contract between Plaintiff and Defendant Lee. Defendant Oh does not appear to be mentioned in the contract.

Plaintiff added Defendant Hyun John Oh, the moving party here, by a Doe 1 amendment on March 20, 2023.

Defendant Oh now moves for judgment on the pleadings. As noted below, a motion for judgment on the pleadings is premature, so the Court regards the motion as a demurrer.

Plaintiff does not oppose.

Analysis

A. Defendant should have demurred rather than moving for judgment on the pleadings

At this stage of litigation, Defendant Oh should have demurred to Plaintiff’s FAC rather than moving for judgment on the pleadings. A defendant may move for judgment on the pleadings only after “the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired.” (Code Civ. Proc., § 438(f)(2).)

Defendant filed the instant motion only seven days after being added to the FAC by amendment.

However, “[t]he law does not require a useless act” (Sun-Maid Raisin Growers of Cal. v. Paul (1964) 229 Cal.App.2d 368, 374), and the Court sees no purpose in forcing Defendant to make a different filing, on the same grounds, merely for failure to label it properly.

B. Plaintiff’s FAC Contains No Specific Allegations as to Defendant Oh/ Doe 1

The FAC contains no factual allegations setting forth Defendant Oh/Doe 1’s actions with respect to this contract dispute.

The FAC alleges Doe 1 “[was an] agent or employee of the named defendant and acted within the scope of that agency or employment.” (FAC ¶ 4(b)(1).) That sole mention does not tie Doe 1 to any of the causes of action pled here as this is a contract dispute.

Plaintiff refers to Doe 1 at paragraph BC-1 on page 3 of her FAC, suggesting that Lee and Doe 1 made a written agreement with her. But the written agreement attached to the complaint is dated July 31, 2020, and does not mention Oh. She then alleges at paragraph BC-2, on the same page, that “Defendant 1” “repudiated the July 1, 2020 agreement” – which, if she intends to refer to the agreement attached to her pleading, again does not carry a July 1 date and does not mention Oh.

Plaintiff’s second cause of action claims a “Defendant 1” owes her money on an open book account, but does not identify any instrument on which the alleged debt is based.

Her third cause of action reiterates the allegations from the first, while also saying that “Plaintiff and defendant and Does 1 to 10 agreed to form a partnership . . . who named only herself”, meaning ostensibly defendant Lee, rather than Oh.

C. Conclusion

Plaintiff’s FAC fails to state a claim and is fatally uncertain as regards to Defendant Oh.