This case was last updated from Los Angeles County Superior Courts on 09/24/2021 at 07:03:41 (UTC).

KYUNG AE CHO VS SAMUEL SIMS, ET AL.

Case Summary

On 11/03/2020 KYUNG AE CHO filed a Contract - Other Contract lawsuit against SAMUEL SIMS. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9299

  • Filing Date:

    11/03/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

CHO KYUNG AE

Defendants

SIMS SAMUEL

MOTROCADE INC. A CALIFORNIA CORP

JULJULI INC. A CALIFORNIA CORP.

Attorney/Law Firm Details

Defendant Attorney

DIBA KASEY

 

Court Documents

Answer - Answer

5/3/2021: Answer - Answer

Notice (name extension) - Notice OF RULING OF DEFENDANTS SAMUEL SIMS AND MOTORCADE, INC.S DEMURRER TO FIRST AMENDED COMPLAINT

4/13/2021: Notice (name extension) - Notice OF RULING OF DEFENDANTS SAMUEL SIMS AND MOTORCADE, INC.S DEMURRER TO FIRST AMENDED COMPLAINT

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

4/13/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Reply (name extension) - Reply Defendants Samuel Sims and Motorcade, Inc.'s Reply to Opposition to Demurrer to First Amended Complaint

4/6/2021: Reply (name extension) - Reply Defendants Samuel Sims and Motorcade, Inc.'s Reply to Opposition to Demurrer to First Amended Complaint

Opposition (name extension) - Opposition of defendants' demurrer

3/26/2021: Opposition (name extension) - Opposition of defendants' demurrer

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

3/18/2021: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Notice (name extension) - Notice OF WITHDRAWAL OF DEFENDANTS DEMURRER TO COMPLAINT

3/2/2021: Notice (name extension) - Notice OF WITHDRAWAL OF DEFENDANTS DEMURRER TO COMPLAINT

Proof of Personal Service - Proof of Personal Service

1/19/2021: Proof of Personal Service - Proof of Personal Service

Proof of Personal Service - Proof of Personal Service

1/19/2021: Proof of Personal Service - Proof of Personal Service

Proof of Personal Service - Proof of Personal Service

1/19/2021: Proof of Personal Service - Proof of Personal Service

Other - (name extension) - Other - First Amended Complaint for Damage

2/18/2021: Other - (name extension) - Other - First Amended Complaint for Damage

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

1/27/2021: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

1/13/2021: Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

Summons - Summons on Complaint

11/18/2020: Summons - Summons on Complaint

First Amended Standing Order - First Amended Standing Order

11/3/2020: First Amended Standing Order - First Amended Standing Order

Complaint - Complaint

11/3/2020: Complaint - Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

11/3/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

11/4/2020: Notice of Rejection - Pleadings - Notice of Rejection - Pleadings

7 More Documents Available

 

Docket Entries

  • 11/07/2023
  • Hearing11/07/2023 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 05/03/2022
  • Hearing05/03/2022 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 05/03/2021
  • DocketAnswer; Filed by: Samuel Sims (Defendant); Motrocade Inc. a California Corp (Defendant); As to: Kyung Ae Cho (Plaintiff)

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  • 04/13/2021
  • DocketNotice OF RULING OF DEFENDANTS SAMUEL SIMS AND MOTORCADE, INC.?S DEMURRER TO FIRST AMENDED COMPLAINT; Filed by: Samuel Sims (Defendant); Motrocade Inc. a California Corp (Defendant); As to: Kyung Ae Cho (Plaintiff); Samuel Sims (Defendant); Motrocade Inc. a California Corp (Defendant) et al.

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  • 04/13/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 04/13/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 04/13/2021 at 10:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 04/13/2021; Result Type to Held

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  • 04/06/2021
  • DocketReply Defendants Samuel Sims and Motorcade, Inc.'s Reply to Opposition to Demurrer to First Amended Complaint; Filed by: Samuel Sims (Defendant); Motrocade Inc. a California Corp (Defendant)

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  • 03/26/2021
  • DocketOpposition of defendants' demurrer; Filed by: Kyung Ae Cho (Plaintiff)

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  • 03/18/2021
  • DocketUpdated -- Demurrer - without Motion to Strike DEMURRER TO FIRST AMENDED COMPLAINT;: Name Extension: DEMURRER TO FIRST AMENDED COMPLAINT;; As To Parties: removed

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  • 03/18/2021
  • DocketDemurrer - without Motion to Strike; Filed by: Samuel Sims (Defendant); Motrocade Inc. a California Corp (Defendant)

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9 More Docket Entries
  • 01/13/2021
  • DocketNotice of Rejection - Pleadings; Filed by: Clerk

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  • 11/18/2020
  • DocketSummons on Complaint; Filed by: Kyung Ae Cho (Plaintiff)

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  • 11/04/2020
  • DocketNon-Jury Trial scheduled for 05/03/2022 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 11/04/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 11/07/2023 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 11/04/2020
  • DocketNotice of Rejection - Pleadings; Filed by: Clerk

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  • 11/03/2020
  • DocketComplaint; Filed by: Kyung Ae Cho (Plaintiff); As to: Samuel Sims (Defendant); Motrocade Inc. a California Corp (Defendant); Juljuli Inc. a California Corp. (Defendant)

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  • 11/03/2020
  • DocketCivil Case Cover Sheet; Filed by: Kyung Ae Cho (Plaintiff)

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  • 11/03/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 11/03/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 11/03/2020
  • DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street Courthouse

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Tentative Rulings

Case Number: 20STLC09299    Hearing Date: April 13, 2021    Dept: 26

Cho v. Sims, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendants Samuel Sims, and Motorcade, Inc.’s Demurrer to the First Amended Complaint is OVERRULED. MOVING DEFENDANTS ARE TO FILE AND SERVE AN ANSWER WITHIN 20 DAYS’ SERVICE OF THIS ORDER.  

ANALYSIS:

On November 3, 2020, Plaintiff Kyung Ae Cho filed the instant action for breach of contract and common counts against Defendants Samuel Sims (“Defendant Sims”), Motorcade, Inc. (erroneously sued as Motrocade Inc.) (“Defendant Motorcade”) and JulJuli, Inc. (“Defendant JulJuli”). Following a meet and confer effort, Plaintiff filed the First Amended Complaint on February 18, 2021 alleging the same causes of action.

On March 18, 2021, Defendants Sims and Motorcade filed the instant Demurrer to the First Amended Complaint. Plaintiff filed an opposition on March 26, 2021 and moving Defendants replied on April 6, 2021.

Discussion

The Court finds that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Giba Decl., ¶¶3-8 and Exhs. A-C.) Defendants Sims and Motorcade demur to the First Amended Complaint for failure to allege facts to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

1st Cause of Action for Breach of Contract

A cause of action for breach of contract must plead the contract, plaintiff’s performance or excuse for non-performance, defendant’s breach, and damage to plaintiff therefrom. (Acoustics, Inc. v. Trepte Constr. Co. (1971) 14 Cal.App.3d 887, 913.) A written contract can be pleaded by alleging its making and attaching a copy to the complaint or by alleging the making and the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) The terms of an oral contract may be pleaded generally as to its effect because it is rarely possible to allege the exact words. (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640.) Finally, an implied-in-fact contract can be alleged based on the promisor’s conduct. (Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 525.)

The First Amended Complaint alleges that upon a promissory note with Defendant Juljuli and upon personal guaranty of Defendant Sims, Plaintiff personally loaned $170,000.00 on August 25, 2016. (FAC, ¶¶10, 22-26 and Exh. 1.) Defendant Sims allegedly personally guaranteed repayment of the loan until August 22, 2019. (Id. at ¶¶12, 24.) Defendant Sims allegedly paid the debt until August 22, 2019, just after the death of his close friend, Plaintiff’s husband. (Id. at ¶¶15, 26.)

The copy of the promissory note (“the Note”) attached to the First Amended Complaint is signed by Defendant Sims as Principal and Authorized Representative of JulJuli, Inc. (FAC, Exh. 1, p. 2.) To the extent the First Amended Complaint alleges that Defendant Sims is the alter ego of Defendant JulJuli, there are insufficient allegations. “To recover on an alter ego theory, a plaintiff need not use the words “alter ego,” but must allege sufficient facts to show a unity of interest and ownership, and an unjust result if the corporation is treated as the sole actor.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 415.) Plaintiff simply alleges that Defendant Sims used Defendant JulJuli as “his own shelter.” (FAC, ¶38.) No facts are alleged to show unity of ownership and interest. The Note, therefore, is expressly between Plaintiff and Defendant JulJuli and cannot support a cause of action for breach of written contract.

Plaintiff also alleges that Defendant Sims orally, personally guaranteed the loan if JulJuli Gas Station closed for any reason. (Id. at ¶¶29-33.) The Court finds that the terms of the alleged personal guarantee and its subsequent breach are sufficiently alleged in the First Amended Complaint. The oral guarantee may be pleaded as to its legal effect, instead of by its exact terms. (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640.) Moving Defendants alternatively argue that the oral guarantee is barred by the Statute of Frauds, which requires contracts for amounts over $100,000.00, or not expressly stated to be performed within one year, to be in writing. (Civ. Code, § 1624, subd. (a)(1) and (a)(7).) The First Amended Complaint alleges that the loan amount was for more than $100,000.00 and does not allege it was to be performed within one year. The First Amended Complaint demonstrates on its face that the cause of action for breach of oral contract is barred by the Statute of Frauds.

Finally, Plaintiff alleges that an implied-in-fact contract exists based on payment of the debt by Defendant Sims using personal checks or checks from Defendant Motorcade. (FAC, ¶17.) The only argument moving Defendants make as to these allegations is that payments by Defendant Sims were on behalf of his employer. (Demurrer, p. 13:21-23.) This argument goes beyond the scope of the pleadings and is improper on demurrer. These allegations are sufficient to state a cause of action for implied-in-fact contract against both moving Defendants.

Therefore, the demurrer to the first cause of action for breach of contract is overruled.

2nd Cause of Action for Common Counts (Money Had and Received)

Although stated as a cause of action for money had and received, the common count is more properly a cause of action for money lent or paid. The First Amended Complaint alleges that Defendant is indebted to plaintiff in a certain sum for money lent, paid or expended to, or for, the defendant. (Moya v. Northrup (1970) 10 Cal. App. 3d 276, 280.) Moving Defendants demur to the second cause of action solely based on the purported failure of the contractual claims. (Demurrer, p. 14:18-25.) As discussed above, Plaintiff has alleged a contractual claim that Moving Defendants are indebted to her.

The demurrer to the second cause of action is also overruled.

Conclusion

Defendants Samuel Sims, and Motorcade, Inc.’s Demurrer to the First Amended Complaint is OVERRULED. MOVING DEFENDANTS ARE TO FILE AND SERVE AN ANSWER WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice.

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