Judge: Thomas S. Mcconville, Case: 2022-01254464, Date: 2023-07-24 Tentative Ruling

Defendant Joon Kang’s demurrer to first amended complaint is SUSTAINED without leave to amend as to the third cause of action for conversion only, and otherwise OVERRULED.

Defendant shall answer the first amended complaint within 10 days of notice.

First cause of action for breach of contract. The first amended complaint (FAC) states facts sufficient to constitute this cause of action. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199 [a plaintiff may plead the legal effect of the contract rather than its precise language]; see also FAC ¶¶ 9-21, 31.)  

Second cause of action for fraud. The FAC states facts sufficient to constitute a cause of action for promissory fraud, with the requisite specificity. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, 645 [promissory fraud, elements, specificity]; see also FAC ¶¶ 9, 31, 32, 34-37.)

Third cause of action for conversion. The court previously sustained defendant’s demurrer to this cause of action without leave to amend. (9/8/22 Minute Order, pp. 4, 6.) As the court specifically explained at that time, “the simple failure to pay money owed does not constitute conversion.” (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 284; see PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.)

Fourth cause of action for unjust enrichment. The FAC states facts sufficient in support of a quasi-contractual claim to invoke the remedy of restitution for unjust enrichment. (See Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 661 [“unjust enrichment” is not a cause of action; it is instead synonymous with circumstances in which a plaintiff is entitled to a restitution remedy]; Professional Tax Appeal v. Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 238 [elements]; see also Russell City Energy Co., LLC v. City of Hayward (2017) 14 Cal.App.5th 54, 70 [a claim for restitution is permitted even if the party inconsistently pleads a breach of contract claim that alleges the existence of an enforceable agreement]; FAC ¶¶ 9-19, 48-53.) 

Fifth cause of action for common count. The FAC states facts sufficient to constitute this cause of action. (See Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [elements]; see also FAC ¶¶ 9-19, 54-57.)

Sixth cause of action for account stated. The FAC states facts sufficient to constitute this cause of action. (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 968 [account stated]; Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752-753 [elements]; see also FAC ¶¶ 58-60.)

Procedural concerns. For the purposes of efficiency and in the interests of justice, the court in its discretion has addressed defendant’s demurrer on the merits despite defendant’s failure to comply with the June 29, 2023 court order specifically directing him to meet and confer.  That same order also noted that defendant had previously failed to comply with statutory requirements regarding meeting and conferring.

Defendant should not expect the court to overlook the failure to comply with statutory procedural requirements in this case simply because defendant is self-represented. (See First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1 [“A party proceeding in propria persona ‘is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’ [Citation.] Indeed, ‘ “the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” ’ ”]; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)   

Given defendant’s repeat failure to comply with procedural requirements, and defendant’s failure to comply with this court’s lawful order of June 29, 2023, the court sets the matter for an order to show cause (“OSC”) why sanctions should not be levied against defendant under Code of Civil Procedure 177.5.  That OSC is set for September 8, 2023 at 9:00 a.m. in Department C28.  Defendant must provide the court with good cause or substantial justification for defendant’s failure to comply with the June 29, 2023 order.  Should defendant fail to show good cause, the court may impose monetary sanctions up to $1500.

Plaintiff shall give notice.