Judge Stephen P. Pfahler, Case Number: 22STCV04880, Date: 2024-04-02 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 22STCV04880, Date: 2024-04-02 Tentative Ruling

Case Number: 22STCV04880 Hearing Date: April 2, 2024 Dept: 68

Dept. 68

Date: 4-2-24

Case 22STCV04880

Trial Date: 5-6-24

SUMMARY JUDGMENT

MOVING PARTY: Plaintiff, Yu Chen

RESPONDING PARTY: Defendant, Cong Ye

RELIEF REQUESTED

Motion for Summary Judgment on the First Amended Complaint

SUMMARY OF ACTION

In 2021, Plaintiff Yu Chen deposited $105,000 into the bank account of Defendant Cong Ye. The parties purportedly agreed that Defendant would hold and return the funds upon request of Defendant. Instead, on December 8, 2021, when Plaintiff requested a return of the funds, and Defendant agreed, on December 9, 2021, Defendant transferred all funds to an unspecified relative. Defendant subsequently paid $25,000 back to Plaintiff, but $79,000 remains outstanding.

On February 8, 2022, Plaintiff filed a complaint for conversion, common count, constructive trust, and violation of Penal Code section 496. Defendant, in pro per, answered the complaint on April 8, 2022. On October 14, 2022, Plaintiff substituted in JPMorgan Chase Bank, NA for Doe 6. On January 17, 2023, Plaintiff dismissed the first, and fourth causes of action as to JPMorgan Chase Bank only. On February 1, 2023, the court sustained the demurrer of JPMorgan Chase Bank, NA with leave to amend.

On February 21, 2023, Plaintiff filed a first amended complaint for Conversion, Common Count: Money Had and Received, Violation of Penal Code section 496, and Unjust Enrichment. Defendant Ye, in pro per, answered the first amended complaint on April 17, 2023. On May 15, 2023, the court ordered the dismissal of JPMorgan Chase Bank, NA. with prejudice.

RULING: Denied.

Request for Judicial Notice: Granted.

The court takes judicial notice of the filed pleadings, but not the content for the truth of the matter stated in any and all of the filed documents.

Plaintiff Yu Chen moves for summary judgment on the second cause of action for Common Count: Money Had and Received, and the fifth cause of action for Unjust Enrichment. Plaintiff moves for relief on grounds that defendant Ye owes the outstanding balance due following the deposit and transfer of funds to a third party. Ye, in a pro per filed opposition, admits to the agreement to hold onto the funds, but maintains the deposit was the result of Plaintiff seeking to conceal assets during a pending divorce. The court electronic filing system shows no reply on file at the time of the tentative ruling publication cutoff.

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Plaintiff need not disprove all defenses, if the elements of a cause of action are made. (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 564; WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532.) “An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

The motion itself provides improper notice in that Plaintiff only seeks summary judgment on two of the five pending causes of action, and otherwise fails to separately move for summary adjudication on the individual causes of action. (Code Civ. Proc., § 437c, subd. (c), (f)(1).) The court can therefore neither accord complete relief on the entire first amended complaint pursuant to the motion for summary judgment, or consider any alternative unmade motion for summary adjudication. (Jimenez v. Protective Life Ins. Co. (1992) 8 Cal.App.4th 528, 535; Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 974 (footnote 4); Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545–1546 [“The language in Code of Civil Procedure section 437c subdivision (f) makes it clear that a motion for summary adjudication cannot be considered by the court unless the party bringing the motion duly gives notice that summary adjudication is being sought”].)

The motion is therefore DENIED on this basis. Even if the court considered the merits of the motion, the court finds Plaintiff insufficiently establishes the subject claims.

2^nd Cause of Action: Common Count: Money Had and Received

A common count requires the following elements: a statement of indebtedness, consideration, and nonpayment. (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4^th 445, 460; Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454; Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623 [“A cause of action is stated for money had and received if the defendant is indebted to the plaintiff in a certain sum ‘for money had and received by the defendant for the use of the plaintiff’”].)

Other than a statement of an agreed upon placement of the funds into the account of Defendant, and a return upon demand, the court finds no evidence of any basis of consideration under the common counts standard. [Declaration of Yu Chen.] (Allen v. Powell (1967) 248 Cal.App.2d 502, 510.) The court declines to consider the separate argument presented in the declaration of Feng Bo regarding an effort to enter into a settlement agreement, or the request for admissions. [Declaration of Feng Bo; Appendix of Evidence.] Said issues are neither presented in the operative pleading, nor addressed in the points and authorities. Thus, the court declines to find Plaintiff sufficiently establishes the burden of proof required for summary judgment. (Code Civ. Proc., § 437c, subd. (p)(1).) The motion is therefore denied on this additional basis as well.

5^th Cause of Action: Unjust Enrichment

The Second Appellate District no longer recognizes unjust enrichment as a cause of action. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) “Unjust enrichment is a ‘general principle, underlying various legal doctrines and remedies,’ rather than a remedy itself.” (Ibid.) This remedy may still be pled in conjunction with a valid cause of action. (Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911; Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1535.) The court declines to consider the subject cause of action independent to any other potentially tethered viable cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) The motion is therefore denied on this additional basis as well.

The motion for summary judgment is DENIED.

Bench trial remains set for May 6, 2024.

Plaintiff to give notice to parties.