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This case was last updated from Los Angeles County Superior Courts on 05/02/2021 at 13:35:21 (UTC).

BOLUN ALLEN DENG VS JOSEPH LIU, ET AL.

Case Summary

On 05/08/2019 BOLUN ALLEN DENG filed a Contract - Other Contract lawsuit against JOSEPH LIU. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4480

  • Filing Date:

    05/08/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

DENG BOLUN ALLEN

Defendants

LIU JOSEPH

JTNA MANAGEMENT INC. A CALIFORNIA CORPORATION

JSL PLAZA PUENTE HILLS LLC A CALIFORNIA LIMITED LIABILITY COMPANY

Attorney/Law Firm Details

Plaintiff Attorney

COWHIG FRANCIS JOHN

Defendant Attorney

JUNG HAROLD

 

Court Documents

Opposition (name extension) - Opposition Plaintiff's Opposition to Defendants Demurrer to Plaintiff's Second Amended Compalint

4/9/2021: Opposition (name extension) - Opposition Plaintiff's Opposition to Defendants Demurrer to Plaintiff's Second Amended Compalint

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

4/15/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Amended Complaint - Amended Complaint Second Amended (2nd)

2/10/2021: Amended Complaint - Amended Complaint Second Amended (2nd)

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

3/1/2021: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 01/07/2021

1/7/2021: Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 01/07/2021

Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

12/21/2020: Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

Opposition (name extension) - Opposition Plaintiff's Opposition to Defendants Demurrer to Plaintiff's First Amended Complaint

12/21/2020: Opposition (name extension) - Opposition Plaintiff's Opposition to Defendants Demurrer to Plaintiff's First Amended Complaint

Minute Order - Minute Order (Ruling on Submitted Matter)

12/30/2019: Minute Order - Minute Order (Ruling on Submitted Matter)

Certificate of Mailing for - Certificate of Mailing for [Minute Order (Ruling on Submitted Matter)]

12/30/2019: Certificate of Mailing for - Certificate of Mailing for [Minute Order (Ruling on Submitted Matter)]

Memorandum of Costs (Summary) - Memorandum of Costs (Summary)

1/23/2020: Memorandum of Costs (Summary) - Memorandum of Costs (Summary)

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

5/21/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Minute Order - Minute Order (Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer)

7/1/2020: Minute Order - Minute Order (Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer)

Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Non-Jury Trial) of 10/28/2020

10/28/2020: Certificate of Mailing for - Certificate of Mailing for (Court Order Re: Non-Jury Trial) of 10/28/2020

Minute Order - Minute Order (Court Order Re: Non-Jury Trial)

10/28/2020: Minute Order - Minute Order (Court Order Re: Non-Jury Trial)

Civil Case Cover Sheet - Civil Case Cover Sheet

5/8/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Complaint - Complaint

5/8/2019: Complaint - Complaint

Summons - Summons on Complaint

5/8/2019: Summons - Summons on Complaint

First Amended Standing Order - First Amended Standing Order

5/8/2019: First Amended Standing Order - First Amended Standing Order

16 More Documents Available

 

Docket Entries

  • 05/11/2022
  • Hearing05/11/2022 at 10:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 07/01/2021
  • Hearing07/01/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 04/15/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 04/15/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 04/15/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 04/15/2021; Result Type to Held

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  • 04/09/2021
  • DocketOpposition Plaintiff's Opposition to Defendants Demurrer to Plaintiff's Second Amended Compalint; Filed by: Bolun Allen Deng (Plaintiff)

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  • 03/01/2021
  • DocketDemurrer - without Motion to Strike; Filed by: JSL Plaza Puente Hills, LLC, a California limited liability company (Defendant)

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  • 03/01/2021
  • DocketUpdated -- Demurrer - without Motion to Strike To Plaintiff's Second Amended Complaint;: Name Extension: To Plaintiff's Second Amended Complaint;; As To Parties: removed

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  • 03/01/2021
  • DocketUpdated -- Demurrer - without Motion to Strike To Plaintiff's Second Amended Complaint;: As To Parties: removed

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  • 03/01/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 04/15/2021 at 10:30 AM in Spring Street Courthouse at Department 25

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  • 02/10/2021
  • DocketAmended Complaint Second Amended (2nd); Filed by: Bolun Allen Deng (Plaintiff); As to: JSL Plaza Puente Hills, LLC, a California limited liability company (Defendant); JTNA Management, Inc., a California corporation (Defendant); Joseph Liu (Defendant)

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31 More Docket Entries
  • 09/16/2019
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 11/05/2019 at 10:30 AM in Stanley Mosk Courthouse at Department 94

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  • 09/16/2019
  • DocketDemurrer - without Motion to Strike; Filed by: Joseph Liu (Defendant); JSL Plaza Puente Hills, LLC, a California limited liability company (Defendant); JTNA Management, Inc., a California corporation (Defendant)

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  • 05/08/2019
  • DocketNon-Jury Trial scheduled for 11/04/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 05/08/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 05/11/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 05/08/2019
  • DocketComplaint; Filed by: Bolun Allen Deng (Plaintiff); As to: Joseph Liu (Defendant); JSL Plaza Puente Hills, LLC, a California limited liability company (Defendant); JTNA Management, Inc., a California corporation (Defendant)

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  • 05/08/2019
  • DocketSummons on Complaint; Issued and Filed by: Bolun Allen Deng (Plaintiff); As to: Joseph Liu (Defendant); JSL Plaza Puente Hills, LLC, a California limited liability company (Defendant); JTNA Management, Inc., a California corporation (Defendant)

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  • 05/08/2019
  • DocketCivil Case Cover Sheet; Filed by: Bolun Allen Deng (Plaintiff); As to: Joseph Liu (Defendant); JSL Plaza Puente Hills, LLC, a California limited liability company (Defendant); JTNA Management, Inc., a California corporation (Defendant)

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  • 05/08/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 05/08/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 05/08/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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Tentative Rulings

Case Number: 19STLC04480    Hearing Date: April 15, 2021    Dept: 25

HEARING DATE: Thu., April 15, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Deng v. Liu, et al. COMPL. FILED: 05-08-19

CASE NUMBER: 19STLC04480 DISC. C/O: 06-01-21

NOTICE: OK DISC. MOT. C/O: 06-16-21

TRIAL DATE: 07-01-21

PROCEEDINGS: DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT

MOVING PARTY: Defendants JSL Plaza Puente Hills, LLC, JTNA Management, Inc., and Joseph Liu

RESP. PARTY: Plaintiff Bolun Allen Deng

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants’ Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to the first cause of action and SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND as to the second cause of action.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on April 9, 2021 [ ] Late [ ] None

REPLY: None filed as of April 12, 2021 [ ] Late [X] None

ANALYSIS:

  1. Background

On May 8, 2019, Plaintiff Bolun Allen Deng (“Plaintiff”) filed a Complaint for rescission of contract and money had and received against Defendants JSL Plaza Puente Hills, LLC (“JSL”), JTNA Management, Inc. (“JTNA”), and Joseph Liu (“Liu”) (collectively, “Defendants”).

Defendants filed a demurrer to the Complaint on September 16, 2019. The Court sustained the demurrer in part and overruled it in part on November 5, 2019. (11/5/19 Minute Order.) Defendants filed an Answer on January 23, 2020, but Plaintiff filed a First Amended Complaint (the “FAC”) on January 24, 2020. Defendants filed a motion to strike the FAC on February 25, 2020, which was denied on July 1, 2020. (7/1/20 Minute Order.)

On July 14, 2020, Defendants filed a demurrer to Plaintiff’s FAC. The Court sustained the demurrer with 20 days’ leave to amend as to both causes of action on January 7, 2021. (1/7/21 Minute Order.)

Plaintiff filed a Second Amended Complaint (the “SAC”) alleging breach of contract and money had & received causes of action on February 10, 2021. Defendants filed the instant Demurrer to Plaintiff’s Second Amended Complaint (the “Demurrer”) on March 1, 2021 and Plaintiff filed an Opposition on April 9. No reply brief was filed.

  1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

  1. Discussion

The Demurrer includes a meet and confer declaration as required by Code of Civil Procedure section 430.41.

  1. First Cause of Action – Breach of Contract

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

Plaintiff alleges the following: (1) Defendant JSL owns property located at 18204 Gale Ave., Unit I, City of Industry, CA 91749 (the “Property”); (2) that Defendant JTNA represented to Plaintiff it managed and accepted payments for the Property; (3) that Defendant Liu is the managing member and agent for service of process for Defendant JSL and is the President, Secretary, CFO, Director, and agent for service of process for Defendant JTNA; (4) that on or about August 4, 2018, Plaintiff and Defendant JSL entered into a lease agreement for the Property (the “Lease Agreement”) for a period of fifteen years and a commencement date of August 4, 2018 (the “Commencement Date”); (5) that Defendant Liu signed the Lease Agreement on behalf of Defendant JSL; (6) that Defendant JSL was to deliver the premises on the Commencement Date; (7) that Plaintiff delivered a rent deposit cashier’s check of $21,173.60 pursuant to the terms of the Lease Agreement and in exchange for possession of the Property; (8) that on or about August 14, 2018, Plaintiff informed Defendant JTNA he wished to cancel the Lease Agreement; (9) that Defendants refused to return the rent deposit and failed to deliver possession in the alternative; (10) that although the Lease Agreement states Defendant JSL would work towards securing planning, building, and safety approval by the City, the lease Commencement Date remained August 4, 2018 with an estimation that Defendant JSL would deliver the Property to Plaintiff before December 31, 2020; (11) that Plaintiff performed all terms of the contract; (12) that under Paragraph 3.3 of the Lease Agreement, the Agreement would terminate if the Property was not delivered within 120 days after the Commencement Date; and (13) that as a result of Defendants’ acts, Plaintiff has been damaged in the amount of $21,173.60 plus attorney’s fees and costs. (SAC, ¶¶ 3-5, 14-28.)

At the previous hearing, the Court noted that Plaintiff’s allegations did not demonstrate he performed all conditions, covenants, and promises as required by the Lease Agreement. (1/7/21 Minute Order.) Specifically, the Court noted that Plaintiff signed the Lease Agreement on August 4, 2018, but sought to cancel it only ten days later, on August 14, 2021. (Id.) Thus, the Court stated, it appeared that Plaintiff repudiated the Lease Agreement before Defendants’ allegedly breached it. (Id.)

Plaintiff has not addressed the Court’s concerns. Plaintiff alleges that, pursuant to Subsection 3.3 of the Lease Agreement, if possession is not delivered within 120 days of the Commencement Date, then the Lease Agreement would terminate unless other agreements are reached between the parties. (SAC, ¶ 26.) Plaintiff alleges Defendants did not deliver possession within 120 days of the Commencement Date. (Id. at ¶ 26.)

Section 3.3, in its entirety, provides:

“Lessor agrees to use its best commercially reasonable efforts to deliver possession of the Premises to Lessee by the Commencement Date. If, despite said efforts, Lessor is unable to deliver possession by such date, Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or change the Expiration Date. Lessee shall not, however, be obligated to pay Rent or perform its other obligations until Lessor delivers possession of the Premises and any period of rent abatement that Lessee would otherwise have enjoyed shall run from the date of delivery of possession and continue for a period equal to what Lessee would otherwise have enjoyed under the terms hereof, but minus any days of delay caused by the acts or omissions of Lessee. If possession is not delivered within 60 days after the Commencement Date, as the same may be extended under the terms of any Work Letter executed by the Parties, Lessee may, at its option, by notice in writing within 10 days after the end of such 60 day period, cancel this Lease, in which event, the Parties shall be discharged from all obligations hereunder. If such written notice is not received by Lessor within said 10 day period, Lessee’s right to cancel shall terminate. If possession of the premises is not delivered within 120 days after the Commencement Date, this lease shall terminate unless other agreements are reached between Lessor and Lessee, in writing.”

(SAC, Exh. A, § 3.3) (Emphasis added.)

Based on the above, the earliest that Plaintiff was permitted to cancel the Lease Agreement for failure to deliver possession of the Property was 61 days after the Commencement Date. (See id.) However, Plaintiff’s allegations demonstrate he notified Defendant JTNA of his intent to cancel the Lease Agreement on August 14, 2018, only ten days after executing the Lease Agreement. (SAC ¶¶ 14, 17, Exh. A.) Thus, by canceling the Lease Agreement only ten days after it was executed and failing to adhere to the minimum 60-day allowance provided to Defendant JSL for a delay in the delivery of possession of the Property, Plaintiff appears to have breached the Lease Agreement without allowing Defendant JSL to perform. As such, Plaintiff cannot establish an essential element of a breach of contract cause of action, i.e., that Plaintiff performed or was excused from performing.

Accordingly, the Demurrer as to the first cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

  1. Second Cause of Action – Common Count - Money Had and Received

“A cause of action for money had and received is stated if it is alleged [that] 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.’… [Citation].” (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.) “In an action on an express contract, a claim for money had and received is permitted where there has been a total failure of consideration. [Citation.] ‘Failure of consideration is the failure to execute a promise, the performance of which has been exchanged for performance by the other party.’ [Citation.] ‘[T]he failure of consideration is total…[where] nothing of value has been received under the contract by the party…’ seeking restitution. [Citation.] Where the failure of consideration is total, ‘the law implies a promise on the part of the other to repay what has been received by him under the contract…’ [Citation.] Such a promise is implied because the ‘defendant cannot in equity and good conscience retain the benefits of the agreement and repudiate its burdens…’ [Citation.]” (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 230.)

Here, Plaintiff alleges the existence of an express contract, the Lease Agreement. Plaintiff also alleges (1) that Plaintiff delivered to Defendants, and Defendants accepted, a deposit of $21,173.60; (2) that Defendants failed to deliver possession of the Property in exchange for the rent deposit; (3) that Defendants failed to return the rent deposit; (4) that as a result of Defendants’ breach, Plaintiff has been unable to operate a restaurant; (5) that it has been more than 120 days since the Commencement Date; and (6) that the rent deposit was had, but not used for the benefit of Plaintiff and therefore, Plaintiff is entitled to a return of the rent deposit. (SAC, ¶¶ 29-31.)

First, Plaintiff does not allege which Defendant took the money. In addition, as discussed in Subsection A above, Plaintiff’s allegations do not demonstrate there has been a total failure of consideration on Defendants’ part. Indeed, Plaintiff’s allegations demonstrate he repudiated the Lease Agreement only ten days after it was signed but did not allege any justification excusing his non-performance. Plaintiff’s allegations do not demonstrate Defendants are required, in equity and good conscience, to return the rent deposit.

Thus, the Demurrer as to the second cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

  1. Conclusion & Order

For the foregoing reasons, Defendants’ Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to the first cause of action and WITH 20 DAYS’ LEAVE TO AMEND the second cause of action.

Moving party is ordered to give notice.

Case Number: 19STLC04480    Hearing Date: January 07, 2021    Dept: 25

HEARING DATE: Thu., January 7, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Deng v. JSL Plaza Puente Hills, LLC COMPL. FILED: 05-08-19

CASE NUMBER: 19STLC04480 DISC. C/O: 06-01-21

NOTICE: OK DISC. MOT. C/O: 06-16-21

TRIAL DATE: 07-01-21

PROCEEDINGS: DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

MOVING PARTY: Defendants JSL Plaza Puente Hills, LLC, JTNA Management, Inc., and Joseph Liu

RESP. PARTY: Plaintiff Bolun Allen Deng

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants’ Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE FIRST AND SECOND CAUSES OF ACTION.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on December 21, 2020 [ ] Late [ ] None

REPLY: None filed as of January 5, 2021 [ ] Late [X] None

ANALYSIS:

  1. Background

On May 8, 2019, Plaintiff Bolun Allen Deng (“Plaintiff”) filed a complaint for rescission of contract and money had and received against Defendants JSL Plaza Puente Hills, LLC (“JSL”), JTNA Management, Inc. (“JTNA”), Joseph Liu (“Liu”).

Defendants filed a demurrer on September 16, 2019. The Court sustained the demurrer in part and overruled it in part on November 5, 2019. (11/5/19 Minute Order.) Defendants filed an Answer on January 23, 2020, but Plaintiff filed a First Amended Complaint on January 24, 2020.

Defendants filed a motion to strike the FAC on February 25, 2020, which was denied on July 1, 2020. (7/1/20 Minute Order.)

Defendants filed the instant Demurrer to Plaintiff’s First Amended Complaint (the “Demurrer”) on July 14, 2020. Plaintiff filed an Opposition on December 21, 2020. To date, no reply has been filed.

  1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

  1. Discussion

  1. Meet and Confer Requirement

Defendants’ counsel states that on July 1, 2020, he sent Plaintiff’s counsel a meet and confer letter and asked for a response no later than July 9, 2020 but did not hear back from Plaintiff’s counsel. (Dem., Jung Decl., ¶¶ 2-3, Exh. A.) This is insufficient. Code of Civil Procedure section 430.41, subdivision (a), specifically requires the moving party to meet and confer “in person or by telephone.” Although the Court recognizes meetings in person are difficult due to the COVID-19 pandemic, Defendants counsel does not indicate there was even an attempt to contact Plaintiff’s counsel via telephone.

However, a determination that the meet and confer process is insufficient does not constitute grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).) In addition, based on the issues presented, the Court finds that it is in the interests of judicial economy to proceed and make a ruling on the merits.

  1. Plaintiff’s Procedural Arguments

Plaintiff argues the demurrer should be dismissed based on several procedural issues.

First, Plaintiff argues the Demurrer is untimely because the FAC was filed on January 24, 2020, but the Demurrer was filed almost 7 months later, on July 14, 2020. (Oppo., p. 5:3-12.) Plaintiff also argues that because Defendants’ motion to strike was denied on July 1, 2020, Defendants were required to file an answer. (Oppo., pp. 3:22-4:5.) A defendant can demur to the complaint within the same time he has to respond to it, that is, 30 days. (Code Civ. Proc., §§ 412.20, subd. (a)(3), 430.40, subd. (a).) Filing a motion to strike without demurring to the complaint does not extend the time within which to demur. (Code Civ. Proc., § 585, subd. (f).) However, courts may consider an untimely demurrer in their discretion. (Jackson v. Doe (2011) 192 Cal.App.4th 749; See also McAllister v. County of Monterrey (2007) 147 Cal.App.4th 253, 282 [finding the court acted within its broad discretion to consider an untimely demurrer where plaintiff did not take defendant’s default and did not demonstrate plaintiff was prejudiced by the delay].) Code of Civil Procedure section 473, subdivision (a), provides that “[t]he court may, in furtherance of justice, and on any terms as may be proper,…enlarge the time for answer or demurrer.”

As in the McAllister case, Plaintiff did not take Defendants’ default and has not demonstrated or explained how the delay has prejudiced him. Thus, the Court exercises its broad discretion to consider the untimely demurrer.

Plaintiff also argues Defendants violated California Rules of Court, rule 3.1320(d) because Defendants reserved a hearing nearly 5 months after the Demurrer was filed. (Oppo., p. 6:6-14.) Rule 3.1320(d) provides that “[d]emurrers must be set for hearing not more than 35 days following the filing of the demurrer or on the first date available to the court thereafter.” (Emphasis added.) First, Plaintiff does not explain why a violation of Rule 3.1320, subdivision (d), would constitute sufficient grounds to dismiss or overrule the Demurrer in its entirety. Second, the Court’s calendar has been severely impacted by the COVID-19 pandemic, often making it difficult to obtain earlier hearing dates. Thus, the Court finds this argument unpersuasive.

Lastly, Plaintiff argues Defendants’ special demurrer is not permitted in limited jurisdiction court. (Oppo., p. 4:9-26.) This argument is similarly unavailing. Defendants demur on the basis that Plaintiff failed to allege sufficient facts as to all causes of action and against Defendants JTNA and Liu specifically. (Dem., p. 2:1-6; p. 6:2-20.) This is a general demurrer.

  1. First Cause of Action – Breach of Contract

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

Plaintiff alleges the following: (1) that Defendant JSL owns property located at 18204 Gale Ave., Unit I, City of Industry, CA 91749 (the “Property”); (2) that Defendant JTNA represented to Plaintiff it managed and accepted payments for the Property; (3) that Defendant Liu is the managing member and agent for service of process for Defendant JSL and is the President, Secretary, CFO, Director, and agent for service of process for Defendant JTNA; (4) that on or about August 4, 2018, the parties entered into a lease agreement for the Property (the “Lease Agreement”) for a period of fifteen years and a commencement date of August 4, 2018 (the “Commencement Date”); (5) that Defendant Liu signed the Lease Agreement on behalf of Defendant; (6) that Defendant JSL was to deliver the premises on the Commencement Date; (7) that Plaintiff delivered a rent deposit cashier’s check of $21,173.60 pursuant to the terms of the Lease Agreement and in exchange for possession of the Property; (8) that on or about August 14, 2018, Plaintiff informed Defendant JTNA he wished to cancel the agreement; (9) that Defendants refused to return the rent deposit and failed to deliver possession in the alternative; (10) that although the Lease Agreement states Defendant JSL would work towards securing planning, building, and safety approval by the City, the lease Commencement Date remained August 4, 2018 with an estimation that Defendant JSL would deliver the Property to Plaintiff before December 31, 2020; (11) that Plaintiff performed all terms of the contract; (12) that under Paragraph 3.3 of the Lease Agreement, the Agreement would terminate if the Property was not delivered within 120 days after the Commencement Date; and (13) that as a result of Defendants’ acts, Plaintiff has been damaged in the amount of $21,173.60 plus attorney’s fees and costs. (FAC, ¶¶ 3-5, 13-17, 19-25.)

As Defendants point out, Paragraph 3.3 of the Lease Agreement states that “[i]f possession of the [Property] is not delivered within 120 days after the Commencement Date, this Lease shall terminate unless other agreements are reached” between Plaintiff and Defendant JSL.” (FAC., Exh. A.) The other agreement reached is memorialized in Paragraph 54, which states that “[k]ey delivery would be on or prior to 12/31/20.” (Id.) Plaintiff acknowledges this provision in his FAC, but states he relied on Defendant’s representations that key delivery would “not be long.” (FAC., ¶ 17.) However, “facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence.” (Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767-68.) Thus, Paragraph 54 is given precedence over Plaintiff’s contrary allegations. In any case, additional allegations are needed regarding the representations, such as who made the representations, when they were made, and whether the alleged representations were written or oral, for the Court to determine whether they constituted another agreement that modified the terms of the Lease Agreement under Paragraph 3.3.

In addition, Plaintiff’s allegations do not demonstrate he performed all conditions, covenants, and promises required of him. Specifically, Plaintiff signed the Lease Agreement on August 4, 2018 but sought to cancel the agreement only ten days later, on August 14, 2018. (FAC, ¶¶ 13, 16.) Thus, it appears that Plaintiff repudiated the Lease Agreement before Defendant JSL’s alleged breach occurred.

  1. Alter Ego Allegations

Plaintiff alleges that Defendants JSL and Liu (1) treated Defendant JTNA as their alter ego rather than a separate entity; (2) that Defendant JTNA was not adequately capitalized and was a mere shell, instrumentality, and conduit through which they could do business; (2) exercised complete dominion and control over JTNA and failed to follow corporate formalities; (3) comingled their funds and assets with Defendant JTNA and vice versa; and (4) created such a unity of interest and ownership that separateness between them did not exist. (FAC, ¶¶ 6-8.) Plaintiff further alleges that recognizing Defendant JTNA as a separate entity would allow Defendants JSL and Liu to escape personal liability, sanction fraud, and promote injustice. (Id.)

These allegations would be sufficient if Plaintiff alleged that Defendants JTNA and Liu treated Defendant JSL as their alter ego, that JSL was a mere shell, etc. (See Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235-36; First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 915-16.) However, as it was Defendant JSL, not Defendant JTNA or Liu, that is a party to the Lease Agreement, Plaintiff’s allegations are insufficient to allege alter ego liability for this cause of action.

Accordingly, the Demurrer as to the first cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

  1. Second Cause of Action – Money Had and Received

“A cause of action for money had and received is stated if it is alleged [that] 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.’… [Citation].” (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.) “In an action on an express contract, a claim for money had and received is permitted where there has been a total failure of consideration. [Citation.] ‘Failure of consideration is the failure to execute a promise, the performance of which has been exchanged for performance by the other party.’ [Citation.] ‘[T]he failure of consideration is total…[where] nothing of value has been received under the contract by the party…’ seeking restitution. [Citation.] Where the failure of consideration is total, ‘the law implies a promise on the part of the other to repay what has been received by him under the contract…’ [Citation.] Such a promise is implied because the ‘defendant cannot in equity and good conscience retain the benefits of the agreement and repudiate its burdens…’ [Citation.]” (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 230.)

Plaintiff alleges (1) that he delivered his rent deposit of $21,173.60; (2) that Defendants failed to deliver possession of the Property in exchange; (3) that as a result of Defendants’ breach, Plaintiff has been unable to operate his restaurant; and (4) that more than 120 days since the Commencement Date have elapsed and therefore the rent deposit was not used for the benefit of Plaintiff and should be returned. (FAC, ¶¶ 26-28.)

Defendants argue this cause of action fails because the Property has been developed for the benefit of Plaintiff and has been available for some time since the action was commenced, but Plaintiff refuses to take over possession. (Dem., p. 5:16-28.) However, as noted above, the Court only considers allegations, exhibits, and judicially noticed matters in ruling on the Demurrer. Because Defendants’ arguments would require the admission of evidence, they are not persuasive.

Defendants further argue the cause of action is inadequately pled, especially as to Defendant Liu “who has nothing to do with the money.” (Id.) The Court agrees. Plaintiff does not specify to whom the rent deposit was delivered. Because Defendant does not specify who the rent deposit was delivered to, it is unclear whether alter ego allegations are also required for this cause of action. In addition, the Court is not convinced there was a total “failure of consideration” as a result of Defendants’ failure to deliver the Property. As noted above, Paragraph 54 specified the date of key delivery would be on or before December 31, 2020. (FAC, Exh. A.) Plaintiff, however, commenced this action on May 8, 2019, more than a year before that date.

Thus, the Demurrer as to the second cause of action is also SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

  1. Conclusion & Order

For the foregoing reasons, Defendants’ Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE FIRST AND SECOND CAUSES OF ACTION.

Moving party is ordered to give notice.

Case Number: 19STLC04480    Hearing Date: July 01, 2020    Dept: 25

MOTION TO STRIKE ANSWER

(CCP § 436)

TENTATIVE RULING:

Defendants JSL Plaza Puente Hills, LLC, JTNA Management, Inc. and Joseph Liu’s Motion to Strike is DENIED. In addition, Plaintiff Bolun Allen Deng’s request for sanctions pursuant to CCP 128.5 is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on June 16, 2020 [ ] Late [ ] None

REPLY: None filed as of June 29, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On May 8, 2019, Plaintiff Bolun Allen Deng (“Plaintiff”) filed an action for rescission of contract and money had and received against Defendants JSL Plaza Puente Hills, LLC (“JSL”), JTNA Management, Inc. (“JTNA”), and Joseph Liu (“Liu”) (collectively, “Defendants”).

On September 16, 2019, Defendants filed a Demurrer. After taking the matter under submission, the Court sustained Defendants’ demurrer on December 30, 2019 as to the first cause of action for rescission of contract, and overruled as to the second cause of action for money had and received. (12/30/19 Minute Order.) The Court also ordered Plaintiff to allege additional facts that demonstrated Defendants JTNA and Liu were proper defendants in this action. (Id.) Plaintiff was granted 20 days’ leave to amend his pleading. (Id.)

On January 23, 2020, Defendant JSL filed an Answer. On January 24, 2020, Plaintiff filed a First Amended Complaint (“FAC”).

On February 25, 2020, Defendants filed the instant Motion to Strike to Plaintiff’s First Amended Complaint (the “Motion”). On June 16, 2020, Plaintiff filed an Opposition. To date, no reply brief has been filed.

  1. Legal Standard & Discussion

A. Motion to Strike

1. Legal Standard

Code of Civil Procedure section 436 provides:

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

(Code Civ. Proc., § 436, subd. (b.))

Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).)

“‘Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. [Citation.]’” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.) If an amended pleading is filed after the time allowed, a party may obtain an order striking the amended pleading by way of noticed motion in accordance with Code of Civil Procedure section 1010. (Cal. Rules of Court, rule 3.1320, subd. (i).)

2. Discussion

As an initial matter, the Court notes that Defendants did not file a meet and confer declaration as required by Section 435.5. (Code Civ. Proc., § 435.5, subd. (a).) However, given the arguments raised in the complaint, the Court finds it is in the interest of judicial economy to issue a ruling on the merits.

Defendants argue that Plaintiff’s FAC should be stricken because it was untimely filed. (Mot., p. 3:21-23.) Specifically, they argue Plaintiff should have filed his FAC within 20 days of the Court’s December 30, 2019 order sustaining Defendants’ demurrer and granting Plaintiff 20 days’ leave to amend. (Id. at p. 3:10-23.) As the FAC was filed on January 24, 2020, that is, 25 days after the Court’s order, it is untimely. (Id.) In Opposition, Plaintiff argues that the notice of order was mailed by the Court Clerk on December 30, 2019, which extends Plaintiff’s period to amend by five days pursuant to Code of Civil Procedure section 1013a. (Oppo., p. 4:12-19.)

Plaintiff’s arguments are well-taken. “[T]he time to amend a complaint following a demurrer runs from the notice of that ruling, not from the ruling itself even if counsel is present.” (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691.) When service of the notice is made by mail, the time to amend is extended by five days. (Id. at p. 692; Code Civ. Proc., § 1013, subd. (a).) As the court clerk mailed a notice to both parties on December 30, 2019, Plaintiff’s time to amend the Complaint was extended by five days and was due no later than January 24, 2020.

Because Plaintiff’s FAC was timely filed on January 24, 2020, Defendants’ Motion is DENIED.

B. Plaintiff’s Request for Sanctions Pursuant to CCP 128.5

In his opposition, Plaintiff argues the Court should award sanctions against Defendants pursuant to Code of Civil Procedure section 128.5. (Oppo., p. 7:4-23.) However, “[a] motion for sanctions under this section shall be made separately from other motions or requests…” (Code Civ. Proc., § 128.5, subd. (f)(1)(A).) (Emphasis added.) Because Plaintiff did not make a separate request for sanctions pursuant to this section, his request is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Defendants JSL Plaza Puente Hills, LLC, JTNA Management, Inc. and Joseph Liu’s Motion to Strike is DENIED. In addition, Plaintiff Bolun Allen Deng’s request for sanctions pursuant to CCP 128.5 is also DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC04480    Hearing Date: November 05, 2019    Dept: 94

DEMURRER TO COMPLAINT

(CCP § 430.10)

TENTATIVE RULING:

Defendants JSL Plaza Puente Hills, LLC, JTNA Management, Inc., and Joseph Lius Demurrer to Complaint is OVERRULED IN PART and SUSTAINED IN PART.

ANALYSIS:

I. Background

On May 8, 2019, Plaintiff Bolun Allen Deng (“Plaintiff”) brought this action against Defendants JSL Plaza Puente Hills, LLC (“JSL”), JTNA Management, Inc. (“JTNA”), and Joseph Liu (“Liu”) (collectively, “Defendants”) for (1) rescission of contract and (2) money had and received. In response, Defendants filed a Demurrer to the Complaint on September 16, 2019. Plaintiff opposed the Demurrer on October 18. Defendants have submitted proof of a meet of confer effort they made as required by CCP § 430.41(a), which Plaintiff does not dispute as insufficient.

II. Legal Standard

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) “The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4th at p. 240.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

The Court liberally construes the pleading “with a view to substantial justice between the parties.” (CCP § 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.)

III. Discussion

A. Rescission of Contract (1st Cause of Action)

Rescission of contract “is not a cause of action; it is a remedy.” (Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 70.) Even though Plaintiff pleads rescission as a cause of action, “the nature of a cause of action does not depend on the label the plaintiff gives it or the relief the plaintiff seeks but on the primary right involved.” (Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 427.) Having reviewed the Complaint, the Court construes the Complaint as pleading a breach of contract claim for rescission as a remedy.

Plaintiff therefore must plead a cause of action for breach of contract. To do so, Plaintiff must plead “(1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

Plaintiff alleges that he executed a lease agreement with Defendants to rent a commercial property for the purpose of operating a Japanese fast food restaurant. (Compl. ¶ 8.) Plaintiff allegedly paid Defendant $21,173.60 as deposit and first month rent, but he has not acquired possession of the commercial property. (Id. ¶¶ 9, 15.) The lease specifies, however, that “[k]ey delivery will be on or prior to 12/31/20. Landlord does not guarantee the delivery date of key.” (Id. ¶ 11.) Plaintiff now claims that the stated term is ambiguous and unconscionable and seeks to rescind the lease agreement. (Id. ¶¶ 11, 15.) In the Demurrer, Defendant argues that “[h]ere we have the target date of the completion of the improvement and commencement of contract. If and only if, lessor is unable to deliver the possession due to events beyond lessor’s control by December 31, 2020, only then Plaintiff can seek rescission.” (Demurrer p. 4.) In essence, Defendants are contending that Plaintiff has failed to plead breach. The Court agrees.

“A party to a contract has two different remedies when it has been injured by a breach of contract or fraud and lacks the ability or desire to keep the contract alive. [Citation.] The party may disaffirm the contract, treating it as rescinded, and recover damages resulting from the rescission. [Citation.] Alternatively, the party may affirm the contract, treating it as repudiated, and recover damages for breach of contract or fraud. [Citation.]” (Wong v. Stoler (2015) 237 Cal.App.4th 1375, 1384.) Plaintiff must first sufficiently plead a breach of contract claim; only upon establishing such claim, may Plaintiff elect his remedy of either rescission or damages. Because Plaintiff has failed to sufficiently plead the element of breach, the Demurrer to the first cause of action is SUSTAINED.

If Plaintiff is seeking, in the alternative, declaratory relief that the lease agreement is invalid because it is unconscionable or lack mutual assent, this Court has no jurisdiction to grant declaratory relief. Such relief is prohibited in limited jurisdiction court under CCP § 580(b)(4). Nonetheless, Plaintiff may amend the Complaint to add a declaratory relief claim then seek reclassification to unlimited jurisdiction court.

B. Money Had & Received (2nd Cause of Action)

Defendants argue in a conclusory manner, without any authority, the following: “This cause of action raises no new facts or legal theory. This is simply a parasitic claim to the rescission cause of action. As such, demurrer to this cause of actions should also be sustained.” (Demurrer p. 5.)

A cause of action for money had and received is not parasitic claim. “A cause of action for money had and received is stated if it is alleged [that] 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.’’ . . .’ [Citation.]” (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.)

Moreover, “[a] point which is merely suggested by [a party’s] counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.” (Do It Urself Moving & Storage v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 35.) As here, Defendants’ conclusory arguments without authority as to the second cause of action are, therefore, disregarded. It follows that the Demurrer to the second cause of action is OVERRULED.

C. Proper Defendants

Defendants then contend that the lease agreement is only between Plaintiff and Defendant JSL. (Demurrer p. 5.) Defendants JTNA and Liu are not parties to the agreement and, therefore, not proper Defendants in this action. (Id.) In opposition, Plaintiff cites to paragraph seven of the Complaint in which he alleges that JTNA and Liu were agents, servants, employees, and/or co-conspirator of JSL. (Demurrer, citing to Compl. ¶ 7.) This conclusory allegation, however, is insufficient.

Here, the first cause of action is based on a breach of contract. Since JTNA and Liu are not parties to the lease agreement, Plaintiff must allege sufficient facts to show how JTNA and Liu would be liable for JSL’s breach of contract. Plaintiff has not alleged such facts here. As for the second cause of action based on money had or received, Plaintiff alleges that all Defendants accepted his $21,173.60, (Compl. ¶ 18), but this is contradicted by the lease agreement which provides that JSL is the sole landlord and beneficiary of Plaintiff’s rent payments, (id., Exh. A). (Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767-768 “‘[F]acts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence.”].) Plaintiff needs to allege more facts to explain this discrepancy. Accordingly, Defendants’ Demurrer to the Complaint based on JTNA and Liu A not being proper Defendants is SUSTAINED.

IV. Conclusion & Order

In light of the foregoing, the Demurrer to the second cause of action is OVERRULED, but it is SUSTAINED as to the first cause of action and JTNA and Liu not being proper Defendants. Plaintiff may amend his Complaint and file a new one within 20 days of this Order.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

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