Judge: Thomas Falls, Case: 22PSCV00487, Date: 2023-03-20 Tentative Ruling

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Case Number: 22PSCV00487    Hearing Date: March 20, 2023    Dept: O

Hearing date:                          March 20, 2023

RE:                                          Peter Tran v. Michael Lin, et al. (22PSCV00487)

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DEMURRER OF DEFENDANTS JACK LIN AND ACT HOLDING INVESTMENTS, LLC TO FIRST AMENDED COMPLAINT

Responding Party: Plaintiff

Tentative Ruling

DEMURRER OF DEFENDANTS JACK LIN AND ACT HOLDING INVESTMENTS, LLC TO FIRST AMENDED COMPLAINT is SUSTAINED without leave to amend as Plaintiff failed to cure the deficiency on amendment.

Background

This is a contracts case. Plaintiff PETER TRAN (“Plaintiff”) alleges the following against Defendants MICHAEL LIN (“Michael”), an individual; JACK LIN, an individual; ACT CONSTRUCTION, LLC aka ACT CONSTRUCTION, INC., an unregistered entity; ACT HOLDING INVESTMENTS, LLC, a California Limited Liability Company; and DOES 1-20: Plaintiff and Michael have been friends for years. Michael fraudulently induced Plaintiff to make investments in properties, using Act Construction to renovate and sell the properties at an alleged profit.[1] Plaintiff has loaned Defendants $500,000, some secured by promissory notes, which have not been paid.

On May 23, 2022, Plaintiff filed suit against Defendants for:

1.      Breach of Written Contract – Count 1;

2.      Breach of Written Contract – Count 2;

3.      Breach of Written Contract – Count 3;[2]

4.      Fraudulent Inducement;

5.      Intentional Misrepresentation;

6.      Negligent Misrepresentation; and

7.      Conversion

On July 14, 2022, JACK LIN, ACT CONSTRUCTION, LLC aka ACT CONSTRUCTION, INC., and ACT HOLDING INVESTMENTS, LLC (collectively, “Defendants”) filed the Motion to Strike.

On July 15, 2022, Defendants filed a Demurrer with a motion to strike, which the court sustained in part and overruled in part.

On September 21, 2022, Plaintiff filed his First Amended Complaint (“FAC”).

On January 17, 2023, defendants filed the instant demurrer.

On January 25, 2023, Plaintiff filed his opposition.

On January 31, 2023, Defendants filed their reply.

I.                   Demurrer

Legal Standard

A demurrer may be made on the grounds that, inter alia, the pleading does not state facts sufficient to constitute a cause of action and/or that the pleading is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Defendants demur to the 7^th cause action for conversion.

Previously, the court sustained the demurrer with leave to amend for the following reason:

“Plaintiff asserts a conversion cause of action based upon the “$500,000 Plaintiff loaned/invested with Defendants.” Thus, as the property identified is the loan but the failure to pay does not constitute a sufficient wrongful act to support a claim for conversion, then the complaint fails to state sufficient facts.

As the FAC again states that the sum is a loan, Plaintiff has failed to cure the defect.

Conclusion

Therefore, demurrer is sustained without leave to amend.