Judge: Upinder S. Kalra, Case: 20STCV46963, Date: 2022-08-04 Tentative Ruling
Case Number: 20STCV46963 Hearing Date: August 4, 2022 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: August
4, 2022
CASE NAME: City of Los Angeles, acting by and through the
Los Angele Department of Water and Power v. Yunhee Min
CASE NO.: 20STCV46963
CROSS-DEFENDANT’S
DEMURRER WITH MOTION TO STRIKE
MOVING PARTY: Cross-Defendant
Yunhee Min
RESPONDING PARTY(S): Cross-Complainant Chris Min
REQUESTED RELIEF:
1. An
order sustaining the demurrer as the first cause of action, without leave to
amend.
TENTATIVE RULING:
1. Demurrer
as to the first cause of action is SUSTAINED, without leave to amend.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On December 8, 2020, Plaintiff City of Los
Angeles, acting by and through the Los Angeles Department of Water and Power
(“plaintiff” or “LADWP”) filed this action against Defendant Yunhee Min,
alleging causes of action for:
C/A 1: Account Stated
C/A 2: Book Account
C/A 3: Goods and Services
Rendered
Plaintiff alleges that defendant was a customer
of record at 440 S. Wilton Place, Los Angeles, California 90024. Plaintiff had
an account with LADWP and became indebted to LADWP in the sum of $59,134.92
from August 4, 2015 through November 24, 2020 for water, sewer, electric,
and/or sold waste/resources services. Defendant is a current LAWDP customer and
is still receiving bills per the billing cycle schedule. Defendant also owes
$1,207.36 on another account with LADWP.
On April 6, 2021, plaintiff filed two doe
amendments, substituting defendant Brandon Min for Doe 1 and substituting defendant
Chris Min for Doe 2.
On July 27, 2021, defendant Chris Min, in pro
per, filed a cross-complaint against cross-defendants LAWDP, Yunhee Min, and
Jeffrey Siegel, as administrator of the estate of Byung Ok Min, for:
C/A 1: Damages and Other
Relief (against Yunhee Min and Siegel)
C/A 2: Equitable Indemnity
(against all cross-defendants)
C/A 3: Contribution
(against all cross-defendants)
C/A 4: Violation of Penal
Code § 487(a) (against all cross-defendants)
He alleges that he is a victim of grand theft by
Yunhee Min, who is his older sister. Defendant Brandon Min is his son. He
alleges that Brandon Min has a 15% ownership interest, Yunhee Min has a 15%
ownership interest, and Siegel (as administrator of estate of Byung Ok Min) has
a 70% ownership interest in the property. Chris Min has no interest in the
property “other than a percentage from the estate of Byung Ok Min.”
Accordingly, he alleges that Yunhee Min is responsible for her percentage
interest in the property as it relates to the bill at issue with the LADWP.
On August 19, 2021, defendant Brandon Min, in
pro per, filed a cross-complaint against cross-defendants LAWDP, Yunhee Min,
and Jeffrey Siegel, as administrator of the estate of Byung Ok Min, for:
C/A 1: Damages and Other
Relief (against Yunhee Min and Siegel)
C/A 2: Equitable Indemnity
(against all cross-defendants)
C/A 3: Contribution
(against all cross-defendants)
C/A 4: Violation of Penal
Code § 487(a) (against all cross-defendants)
On September 27, 2021, Cross-Defendant Yunhee Min filed a
Demurrer as to Chris Min’s Cross Complaint with a reservation date of February
1, 2022 an as to Brandon Min’s Cross Complaint on January 20, 2022.
On January 20, 2022, the Court sustained without leave to amend
Yunhee Min’s Demurrer to Brandon Min’s Cross Complaint.
On February 1, 2022, the Court sustained with leave to amend
Yunhee Min’s Demurrer to Chris Min’s Cross Complaint.
On February 25, 2022, Cross-Complainant Chris Min filed the First Amended Cross-Complaint, alleging
four causes of action:
C/A: Damage and other relief
C/A: Equitable Indemnity
C/A: Contribution
C/A: Violations of Penal Code §
487(a)
The current Demurrer was filed by Cross-Defendant Yunhee Min
on May 6, 2022. Cross-Complainant filed an untimely Opposition on July 25,
2022. Cross-Defendant filed a reply on July 28, 2022.
LEGAL STANDARD
Judicial Notice:
1. The
Letters of Administration issued on January 8, 2018 in the Los Angeles Superior
Court in Estate of Byung Ok Min (L.A. Super. Ct. Case No. BP161243)
2. The
Verified Cross-Complaint filed by Chris Min on October 9, 2015 in the Los
Angeles Superior Court in Yunhee Min v. Chris Min (L.A. Super. Ct. Case No.
BC584100)
3. The
Request for Dismissal filed by Chris Min in October 2016 in the Los Angeles
Superior Court in Yunhee Min v. Chris Min (L.A. Super. Ct. Case No. BC584100).
4. The
Complaint filed by Chris Min on April 6, 2021 in the case, Chris Sh Min v.
Yunhee Min (L.A. Super. Ct. Case No. 21STCV13107).
5. The
Honorable Curtis A. Kin’s September 9, 2021 Minute Order in Chris Sh Min v.
Yunhee Min (L.A. Super. Ct. Case No. Case No. 21STCV13107).
Procedural Matters:
Meet and Confer:
The Declaration of Michelle J. Correl, counsel for
Cross-Defendant, indicates that she spoke with Cross-Complainant on April 18,
2022, but was unable to reach an agreement. (Dec. Correll, ¶ 7).
Untimely Opposition:
Cross-Complainant’s opposition was filed late; it was due on
July 22, 2022, but was filed July 25, 2022. Additionally, it was not served
adequately as required under CCP § 1005(c), as it was not served by a means
“reasonably calculated to ensure delivery to the other party or parties not
later than the close of the next business day.” Yunhee’s counsel discovered the
opposition because she checked the online docket. Cross-Complainant did not
provide any reason as to why the opposition was late. Yunhee’s counsel has
still not receive a copy of the opposition. Further, in the RJN 5, the minute
order from Judge Kin indicates that the same situation occurred: failure to
file timely and to ensure that delivery was adequate. There, Judge Kin
considered the opposition in his discretion as Defendant was able to file a
substantive reply. Here, the court will, in its discretion, consider the
opposition, with the admonishment that Cross-Complainant is required to file
responses in a timely manner.
Service:
Cross-Defendant indicates that the Demurrer was served via
overnight delivery. As for Cross-Complainant, as indicated above, the
opposition was never served on Cross-Defendant.
ANALYSIS:
Cross-Defendant Yunhee demurs on the grounds that the first
cause of action in the First Amended Cross-Complaint filed by Cross-Complainant
Chris is barred by the doctrine of res judicata, fails to state sufficient
facts to constitute a cause of action, is barred by statute of limitations, and
is uncertain, ambiguous, and unintelligible.
Cross-Complainant argues that all four causes of action in
the FACC are sufficient. Specifically, Cross-Complainant presents arguments
that the fourth cause of action, which is not subject to the present demurrer. Additionally,
Cross-Complainant contends that the first cause of action is for declaratory
relief. However, as Cross-Defendant asserts, that is not alleged in the FACC.
1. Res
Judicata:
Cross-Defendant
Yunhee argues that this first cause of action is barred by res judicata. The
elements of res judicata are: “(1) a claim or issue raised in the present action
is identical to a claim or issue litigated in a prior proceeding; (2) the prior
proceeding resulted in a final judgment on the merits, and (3) the party
against whom the doctrine is being asserted was a party or in privity with a
party to the prior proceeding.” (Boeken
v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797).
Previously, Cross-Complainant filed
a complaint in 2015 alleging causes of action including conversion, which was
later dismissed without prejudice after Cross-Complainant filed a Request for
Dismissal in 2016. In April 2021, Cross-Complainant filed a cause of action for
conversion based on the same allegations from the previous matter. Judge Kin
sustained Cross-Complainants demurrer on the grounds that the Chris lacked
standing to bring the action. (RJN Ex. 5). Cross-Complainant contends that because
this matter was sustained, without leave to amend based on the merits of the
case, and Cross-Complainant is asserting the same allegations, this cause of
action fails. Here, the allegations concern opening a fictitious bank
account (First Amended Cross-complaint “FACC” 4: 18-19), Yunhee contacted
Tenants about where to send rental payments, (FACC 4: 20-22), and Yunhee
deposited the renal payments (FACC 4: 23-24). The original Cross-Complaint
alleged that Yunhee procured false business name and granted ownership of the
property management company (RJN 4, Cross-Complaint ¶ 8), and Yunhee instructed
tenants where to put rental payments and then deposited them into the opened
bank account. (RJN 4, Cross-Complaint ¶ 13).
“[I]t is generally held that a
demurrer which is sustained for failure of the facts alleged to establish a
cause of action, is a judgment on the merits. However, this is true only if the
same facts are pleaded in the second action (Goddard v. Security Title Ins.
& Guar. Co., supra, 14 Cal.2d at p. 52, 92 P.2d 804), or if, although
different facts are pleaded, the new complaint contains the same defects as the
former. (Kanarek v. Bugliosi (1980)
108 Cal.App.3d 327, 334).
The Opposition does not address this issue, again merely
stating that the fourth cause of action for conversion and first cause of
action for declaratory relief are sufficient.
Res Judicata bars the current action. Judge Kin previously
sustained, without leave to amend, Cross-Defendant’s demurrer based on the same
allegations, on the grounds that Cross-Complainant lacked standing and that
Jeffrey Siegel, the administrator of the estate, had standing. (RJN 5). There
was a final judgment on the merits – demurrer sustained without leave to amend
based on lack of standing, the claim is identical to the previous issue –
fraudulent banking, telling tenants where to deposit rental payments, and
personal use of those rental payments, and the same parties – Cross-Complainant
is bringing the action against Cross-Defendant. Res judicata bars the
current action.
Therefore, the Demurrer to the First Cause of Action is
SUSTAINED, without leave to amend.
2. Lacks
Standing:
Next, Yunhee argues that Chris
lacks standing. The FACC indicates that Jeffrey Siegel is the “Administrator of
Byung Ok Min and has 70% undivided ownership interest in the Property.” (FACC pg. 2: 23-24). The FACC also alleges
that Chris has no interest at the property “other than a percentage as an
heir/beneficiary from the Estate of Byung Ck MIN.” Further, Chris states that
he and Siegel have spoken and Siegel’s “attorney feel that SIEGEL’s fiduciary
duty is to protect the assets of the estate and as such will most likely join
CHRIS in a claim against YUNHEE to recover the more than $100k funds for the
estate.” (FACC pg. 5: 8-10).
The Opposition does not address this issue, again merely
stating that the fourth cause of action for conversion and first cause of
action for declaratory relief are sufficient. As alleged in the FACC, the
administrator of the estate is Jeffrey Siegel. Under Cal. Prob. Code § 9650,
“The personal representative has the management and control of the estate and,
in managing and controlling the estate, shall use ordinary care and diligence.”
Therefore, Cross-Complainant lacks standing to bring this action.
Therefore, the Demurrer to the First Cause of Action is
SUSTAINED, without leave to amend.
3. Statute
of Limitations
Cross-Defendant argues that while
the first cause of action states damages, it discuses conversion. Even if res
judicata did not bar the current matter, the statute of limtiations does. For a
conversion action, under Code of Civil Procedure § 338(c), an action for
“taking, detaining, or injuring goods or chattels, including an action for the
specific recovery of personal property” must be brought within three years.
Because the initial complaint brought in 2015 contains allegations that
Cross-Complainant knew of the facts by October 9 2015, the current matter is
barred by statute of limitations. The original cross-complaint from 2015, RJN
2, provides that Cross-Defendant Yunhee filed a fictitious business name to
obtain bank accounts, and then informed tenants of where too deposit rent
checks and to whom to make them out – the fictious business name. (RJN 2, Comp.
¶ 27, 30).
Here, the same allegations are
raised. Cross-Defendant also argues that any tolling of the statute would have
stopped when the initial Cross-Complainant was dismissed in 2016. Judge Kin
previously indicated that the statute of limitations was not applicable because
“where a tort involves a continuing wrong, the statute of limitations does not
begin to run until the date of the last injury or when the tortuous acts cease.”
(Pugliese v. Superior Court (2007)
146 Cal.App.4th 1444, 1452). There, Judge Kin determined that the complaint
sufficiently alleged that the conversion was still ongoing. (RJN 5). However,
the current FACC fails to allege that the conversion is ongoing, rather the
FACC states that Yunhee set up the fictitious bank accounts, told the tenants
to send the payments to the specific mailbox, and then deposited that money in
the bank account. (FAC pg. 4, 18-25).
There are no allegations that there is an ongoing wrong.
Additionally, there are no dates past 2017 in the FACC. The current cause of
action is also barred by the statute of limitations.
Therefore, the Demurrer to the First Cause of Action is
SUSTAINED, without leave to amend.
4. Ambiguous,
Uncertain, and Unintelligible
Lastly, Cross-Defendant argues that the first cause of
action is ambiguous and uncertain. There are allegations of wrongdoing but
fails to “connect the dots to explain how the acts he alleges equate to harm to
him.” (Motion 11: 7-10). The FACC contains legal terms like “grant theft,”
“fraud,”, and “money laundering,” but does not have any factual allegations to
support these conclusions.
Chris Min names the first cause of action as a cause of
action for “damages and other relief,” but argues later that “[Chris] is a
victim of grand theft, as defined in Penal Code section 487(a), cross defendant
Yunhee Min and Roes 1 through 25 fraudulently stole money by false pretenses.”
Under Penal Code § 487(a), grand theft is committed when “When the money,
labor, or real property or personal property taken is of a value exceeding nine
hundred fifty dollars ($950).” (2022 Cal. Legis. Serv. Ch. 22 (A.B. 2356)). However,
any sort of civil action based on grand theft, such as embezzlement or
conversion, is not pleaded. Cross-Complainant fail to allege any of the facts
that would constitute any sort of conversion or embezzlement claim. Therefore,
the First Cause of Action is uncertain.
Therefore, the Demurrer to the First Cause of Action is
SUSTAINED, without leave to amend.
Leave to Amend
Leave to amend should be liberally
granted if there is a reasonable possibility an amendment could cure the
defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)
The Plaintiff has the burden of demonstrating that leave to amend should be
granted. (Goodman v. Kennedy (1976)
18 Cal.3d 335, 349 [“Plaintiff must show in what manner he can amend his
complaint and how that amendment will change the legal effect of his
pleading.”].) Here, Cross-Complainant asserts that leave to amend should be
granted, but fails to demonstrate how the above defects can be cured.
Motion to Strike:
Cross-Defendant moves to strike the following portion of the
FACC:
Page 4, lines 25-27: “Cross-defendants YUNHEE and SUK forged
a bond through a coverup between the two cross-defendants involving the use and
distribution of Cocaine which was demonstrated by a letter from YUNHEE to SUK,
is not refuted by cross-defendants YUNHEE and SUK.”
Because this portion is contained within the first cause of
action, which is SUSTAINED, without leave to amend, the Motion to Strike is
MOOT.
Conclusion:
For
the foregoing reasons, the Court decides the pending motion as follows:
Demurrer to the First Cause of
Action is SUSTAINED, without leave to amend.
Motion to Strike is MOOT.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: August
4, 2022 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court