Judge: Robert S. Draper, Case: BC672825, Date: 2022-08-02 Tentative Ruling

Case Number: BC672825    Hearing Date: August 2, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Cross-Defendant Jee Joon Choi’s Motion for Judgment on the Pleadings is GRANTED. Cross-Complainant is granted thirty days leave to file a First Amended Cross-Complaint.

FACTUAL BACKGROUND

This is an action for fraud. The First Amended Complaint alleges as follows. Plaintiff/Cross-Defendant Jee Hoon Choi (“Choi”) is the brother of the late Jee Hyun Han (“Decedent”), who died in October 2016 with assets. (FAC ¶¶ 8-10.) Choi owns and operates a company in Hong Kong and formed a company in Korea named Dong In Ga. (FAC ¶ 13.) Defendant/Cross-Complainant Romy Tiffanie Han (“Han”) has filed numerous lawsuits in Korea attempting to take control of Choi’s company and has created a fraudulent will and living trust on Decedent’s behalf to try to take Choi’s company assets in Korea. (FAC ¶¶ 11-12.) The Complaint alleges that Han is using the fraudulent will and living trust in the US probate court system to influence the courts in Korea and take Choi’s corporate interests. (FAC ¶ 16.)

The Cross-Complaint alleges that Choi is working with Non-Party Young Eun Choi (“Young”) to divert funds away from Han for their own benefit. (XC ¶ 8.) Jee and Young have “engaged in specific actions to interfere with [Han’s] efforts to marshal [Decedent’s] assets in Korea, and receive all income derived therefrom, as she is obligated to do and report in the Probate Matter.” (XC ¶ 9.)

PROCEDURAL HISTORY

On August 18, 2017, Choi filed the original Complaint alleging a single cause of action for fraud.

On September 8, 2017, Choi filed the First Amended Complaint alleging the same cause of action for fraud.

On November 29, 2017, Han filed the Cross-Complaint asserting fifteen causes of action:

1.    Fraud;

2.    Conversion;

3.    Conspiracy to Commit Fraud;

4.    Prima Facie Tort;

5.    Intentional Infliction of Emotional Distress;

6.    Intentional Interference with Contract;

7.    Intentional Interference with Prospective Economic Advantage;

8.    Negligent Interference with Prospective Economic Advantage;

9.    Unfair Competition;

10. Unjust Enrichment;

11. Imposition of Constructive Trust;

12. Accounting;

13. Negligence;

14. Breach of Fiduciary Duty; and

15. Tortious Interference with Expected Inheritance.

On February 1, 2018, Choi filed an Answer to the XC.

On December 11, 2018, Han filed an Answer to the Complaint.

On May 19, 2021, this Court granted Han’s Motion for Summary Judgment.

On June 15, 2021, this Court entered judgment.

On August 12, 2021, Choi filed a Notice of Appeal.

On July 11, 2022, Choi filed the instant Motion for Judgment on the Pleadings.

On July 20, 2022, Han filed an Opposition.

On July 26, 2022, Choi filed a Reply.

DISCUSSION

I.               MOTION FOR JUDGMENT ON THE PLEADINGS

A defendant may file a motion for judgment on the pleadings after filing an answer and the time to demur has expired. (Code Civ. Proc., § 438(f)(2).) A defendant may move for judgment on the pleadings on the ground that the “complaint does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438(c)(1)(B)(ii).) 

Thus, the standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Ibid.) 

Judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. The judge hearing the motion cannot consider discovery admissions or other evidence controverting the pleadings. Rather, the pleading under attack must be accepted as true. (Code Civ. Proc., § 438(d); Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516; Lance Camper Mfg. Corp. v. Republic Indem. Co. of America (1996) 44 Cal.App.4th 194, 198; Cloud v. Northrop Grumman. Corp. (1998) 67 Cal.App.4th 995, 999.) 

A motion for judgment on the pleadings may be granted with or without leave to file an amended complaint. (Code Civ. Proc., § 438(h)(1).) If the former, the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint. (Code Civ. Proc., § 438(h)(2).) Leave to amend should be granted if there is any reasonable possibility that plaintiff can state good cause of action. (Eckler v. Neutrogena Corporation (2015) 238 Cal.App.4th 433.) Leave to amend a complaint is entrusted to the sound discretion of the trial court. (Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal.App.4th 497.) 

Similar to where a demurrer is sustained, the plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173, quoting Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79, internal quotations omitted.) 

Here, Choi moves for judgment on the pleadings, arguing that Han does not have standing to bring the action in her individual capacity. Choi notes that upon a decedent’s death, the right to bring a claim or an action lies with the personal representative. (Holland v. Knight (1917) 177 Cal. 507.) Choi contends that, though the Cross-Complaint alleges that Han has been appointed as the sole executor of Decedent’s will in the probate matter (XC at p.2), the action was brought by Han in her individual capacity. Accordingly, Choi argues, Han does not have standing to bring the Cross-Complaint, and his Motion for Judgment on the Pleadings must be granted.

In opposition, Han makes two arguments.

1.    Individual Harm

First, Han argues that the Motion should be denied, as the Cross-Complaint repeatedly alleges harm caused to Han as an individual, not just to the Estate. However, as Choi notes in the Reply, while the Complaint does allege damage to Han as an individual, the factual allegations preceding those individual damage claims clearly indicate that the harm caused to Han is related to disputes over the Estate, not to her as an individual.

Moreover, the Cross-Complaint alleges that this “matter arises out of a deceptive, shameful, and manipulative scheme by cross-defendant, who are aunt and uncle of [Han], to deprive [Han] of her inheritance from her biological mother in the approximate sum of $61,000,000 and to divert such assets for their own benefit. (XC at p. 2.) Accordingly, it is clear that the gravamen of the Cross-Complaint relates to harm caused to Decedent’s estate, rather than to Han as an individual.

2.    Probate Code Section 850

Next, Han argues that she has standing to bring the Cross-Complaint pursuant to Probate Code Section 850.

Probate Code sections 850 to 859, of division 2, part 19, govern conveyances or transfers of property claimed to belong to a decedent or other person. (Estate of Kraus (2010) 184 Cal.App.4th 103, 110.) In other words, Prob C § 850, et seq., provides a mechanism for court determination of rights in property claimed to belong to a decedent or another person. (Estate of Young (2008) 160 Cal.App.4th 62, 75.) Probate Code section 850 permits, for example, the personal representative or any interested person to file a petition in probate requesting a court order when a decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another. (Prob C § 850(a)(2)(C); Estate of Yool (2007) 151 Cal.App.4th 867, 873 – 874.)

As Choi notes in his reply, Han is not petitioning the Court for adjudication of adverse claims to Decedent’s property, but rather alleging that Choi is interfering with her role as executor of Decedent’s estate, so section 850 does not apply.

3.    Leave to Amend

Finally, Han asks that, should the instant motion be granted, she is granted leave to amend to bring the Cross-Complaint as the representative for Decedent’s estate.

In response, Choi argues that leave to amend is improper. Choi contends that the statute of limitations has run, and that adding Han as a representative of the estate would “seek to enforce an independent right or impose greater liability upon the defendant,” therefore not relating back to the original Cross-Complaint. (Reply at p. 6; quoting Bartalo v. Sup.Ct (1975) 51 Cal.App.3d 526, 533.)

However, Cox v. San Joaquin Light & Power Corp. ((1917) 33 Cal.App. 522), is on point here.

In Cox, plaintiff brought a wrongful death claim against her former husband’s employer as an individual. Two years later, she sought leave to amend the Complaint, seeking only to set forth that plaintiff was the administratix of her former husband’s complaint, and that she brought suit in that capacity. (Cox, 33 Cal.App, 523.) Defendant opposed, arguing that the amendment would be a fundamental change of the cause of action. The trial court granted leave to amend. The Court of Appeal affirmed, holding:

[T]he change effected by the amendment is obviously in no just sense the bringing of a new action. It is one of form rather than of substance, and in the interests of justice is to be treated as such, rather than to adopt a view which would result in an irretrievable bar to all remedy. Under the modern doctrine, the discretionary power of the court to such end is to be liberally exerted in favor of, rather than against, the disposition of a case upon its merits; and [the court] is entirely satisfied after further examination of the question induced by the reargument that. . . the defect involved is one which may be cured by amendment. (Cox, 33 Cal.App, 527.)

Here, as in Cox, amending the Cross-Complaint to be brought by Han in her representative capacity is a question of form that in no way affects Choi’s legal rights. Forbidding that amendment due to procedural questions would be contrary to the interests of justice.

Finally, the Court notes that, even were Cox not directly on point, Choi’s invocation of the statute of limitations nearly four years after he filed an Answer to the same pleading clearly constitutes good cause for equitable estoppel. As such, leave to amend would be granted even without Cox.

Accordingly, Cross-Defendant’s Motion for Judgment on the Pleadings is GRANTED. Cross-Complainant is granted thirty days to file a First Amended Cross-Complaint brought in her representative capacity.

DATED: August 2, 2022                      ________________________ 

Hon. Robert S. Draper 

Judge of the Superior Court