Judge Stephen I. Goorvitch, Case Number: 23STCV19847, Date: 2024-01-24 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCV19847, Date: 2024-01-24 Tentative Ruling

Case Number: 23STCV19847 Hearing Date: January 24, 2024 Dept: 39

Yi Huang, et al. v. Desheng Xu

Case No. 23STCV19847

Demurrer and Case Management Conference

Plaintiffs Yi Huang and Meihua Chen (collectively, “Plaintiffs”) filed this wage and hour case against Defendant Desheng Xu (“Defendant”). Defendant filed a cross-complaint asserting causes of action for: (1) breach of contract, (2) fraud, (3) unjust enrichment, and (4) financial elder abuse. Now, Plaintiffs demur to the second, third, and fourth causes of action.

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

As an initial matter, there is no cause of action for unjust enrichment. Unjust enrichment is a remedy, not a cause of action. (Melchior v. New Line Productions, Inc. (2003) 106 Cal. App. 4th 779, 794.) Therefore, the Court sustains Plaintiffs’ demurrer to the third cause of action without leave to amend.

The Court also sustains Plaintiffs’ demurrer to the second cause of action, fraud, which must be plead with particularity. “This means: (1) general pleading of the legal conclusion of fraud is insufficient; and (2) every element of the cause of action for fraud must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect.” (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) To state a claim for promissory fraud, Plaintiffs must allege specific factual circumstances beyond a breach of contract, i.e., facts that reflect Defendants’ contemporaneous intent not to repay the money. (Hills Transportation Co. v. Southwest Forest Ind., Inc. (1968) 266 Cal.App.2d 702, 707.) Defendant fails to do so in this case. Defendant merely alleges that Huang borrowed money, promising to repay Defendant, but failed to do so. Defendant alleges no facts suggesting that Huang had no intention of honoring this promise when he borrowed the money.

Similarly, Defendant alleges insufficient facts to support a claim for financial elder abuse. The Elder Abuse and Dependent Adult Civil Protection Act defines an elder as “any person residing in this state, 65 years of age or older.” (Welf. & Inst. Code, § 15610.27.) The statute prohibits “[a]buse of an elder or a dependent adult[,]” which is defined as “physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering[.]” (Welf. & Inst. Code, § 15610.07.) “‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. . . . (b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code, § 15610.30, subd. (a)-(b).) Because it is a statutory claim, Defendant must allege the cause of action for elder abuse with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Defendant alleges, “[Plaintiffs have] been wrongful[l]y, fraudulently, appropriating and retaining [Defendant’s] money over the years with the intent of wrongful use and intent to defraud.” (Cross-Complaint, ¶ 42.) Defendant does not allege any specific facts regarding the elder abuse. Defendant alleges only that Plaintiff borrowed money and did not repay the loan as promised, which is insufficient.

Based upon the foregoing, the Court orders as follows:

1. The Court sustains Plaintiffs’ demurrer to the second, third, and fourth causes of action in the cross-complaint.

2. The Court grants leave to amend with respect to the second and fourth causes of action.

3. The Court denies leave to amend with respect to the third cause of action.

4. Defendant may file an amended cross-complaint within thirty (30) days.

5. Based upon the stipulation of the parties, the Court proceeded with the case management conference before Plaintiffs file an answer to the cross-complaint. The Court sets the following dates:

Final Status Conference: July 3, 2024, at 9:00 a.m.

Trial: July 15, 2024, at 9:30 a.m.

The parties shall file joint trial documents on or before June 26, 2024. A list of the required trial documents may be found on the Court’s website (www.LACourt.org) under the “Civil” tab in the “Courtroom Information” section. The parties shall identify all witnesses they intend to call in their respective cases-in-chief, and identify and produce all documents that they intend to introduce in their respective cases-in-chief, on or before June 26, 2024.

6. The parties shall follow all courtroom procedures for Department #39. Jury fees shall be posted on or before February 29, 2024, or the parties shall waive jury.

7. Plaintiffs’ counsel shall provide notice and file proof of such with the Court.