YOUNG K LIM VS OK JOO KIM

Tentative Rulings

Case Number: 19STLC03994    Hearing Date: August 13, 2020    Dept: 25

HEARING DATE: Thu., August 13, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Lim v. Kim COMP. FILED: 04-24-19

CASE NUMBER: 19STLC03994 CROSS-COMP.: 07-12-19

NOTICE: OK DISC. C/O: 09-21-20

MOTION C/O: 10-06-20

PROCEEDINGS: CROSS-DEFENDANTS’ DEMURRER TO CROSS-COMPLAINT

MOVING PARTY: Plaintiff/Cross-Defendant Young K. Lim and Cross-Defendant Jin Ree, in pro per

RESP. PARTY: Defendant/Cross-Complainant Ok Joo Kim, in pro per

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Cross-Defendants Young K. Lim and Jin Ree’s Demurrer to Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to the second and third causes of action and SUSTAINED WITH THIRTY (30) DAYS’ LEAVE FOR CROSS-COMPLAINANT TO AMEND AS TO THE FIRST AND FOURTH 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 October 18, 2019 [X] Late [ ] None

REPLY: Filed on December 9, 2019 [ ] Late [ ] None

SUPP. PAPERS: Filed on March 5, 2020 [ ] Late [ ] None

ANALYSIS:

I. Background

On April 24, 2019, Plaintiff Young K. Lim (“Plaintiff”) filed an action for breach of contract, common counts, and violation of Civil Code section 1719 (action for dishonored checks) against Defendant Ok Joo Kim (“Cross-Complainant”). On July 12, 2019, Defendant Kim filed an Answer and a Cross-Complaint against Plaintiff and Jin Ree (“Ree”) (collectively, “Cross-Defendants”). On August 9, 2019, Cross-Defendants filed a Demurrer to Defendant’s Cross-Complaint (the “Demurrer”).

On October 29, 2019, the Court continued the hearing because Cross-Defendants did not include a meet and confer declaration. (10/29/19 Minute Order.) The Court again continued the matter on February 4, 2020 due to Cross-Defendants’ failure to meet and confer in person or by telephone as required by Section 430.41, subdivision (a). (2/4/20 Minute Order.)

On March 5, 2020, Cross-Defendant Ree filed a supplemental declaration.

II. 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.)

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).)

III. Discussion

Cross-Defendant Ree’s supplemental declaration sets forth several unsuccessful attempts to meet and confer with Cross-Complainant via telephone. (3/5/20 Ree Decl., ¶¶ 4-7.) Thus, the Court finds that Cross-Defendants have satisfied the meet and confer requirement of Section 430.41, subdivision (a).

A. First Cause of Action – Fraud (Conspiracy)

Cross-Defendants demur to the first cause of action on the basis that fraud in conspiracy is not a recognizable civil cause of action and because it fails to set forth sufficient facts. (Dem., p. 2:19-25.)

“There is no separate tort of civil conspiracy and no action for conspiracy to commit a tort unless the underlying tort is committed and damage results therefrom.” (Prakashpalan v. Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1137.) Here, Cross-Complainant alleges an underlying tort of fraud.

“The elements fraud A cause of action for fraud must be alleged with specificity such that a plaintiff pleads facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To support a conspiracy claim, a plaintiff must allege “(1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.” (Kirdon v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581.)

Although not entirely clear, Cross-Complainant appears to allege that Cross-Defendants conspired to initiate a court action with a lost check, that they stole or acquired the lost check, and that they fabricated facts regarding said check. (Cross-Compl., ¶¶ 12, 19-20, 30-31, 37.) However, it is unclear from the face of the Cross-Complaint what Cross-Complainant alleges is the actionable misrepresentation, does not allege that the misrepresentation was intended to induce Cross-Complainant to act on it, does not allege that Cross-Complainant’s reliance was justifiable, and does not specifically allege what damages she suffered.

For these reasons, Cross-Defendants’ demurrer as to the first cause of action is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND.

B. Second and Third Causes of Action – Penal Code §§ 470, 484, 488, and 532

Cross-Defendants demur to the second and third causes of action on the basis that penal code violations are not recognizable civil causes of action. (Dem., p. 5:7-11.)

There are several ways alleged violations of the California Penal Code can result in civil actions. (Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 141.) A violation of a criminal statute can be used to establish a breach of a standard of care or other element of an ordinary tort cause of action. (Id.) A criminal statute can also expressly or impliedly give rise to a private right of action for its violation. (Id.)

Cross-Complainant argues that, based on the doctrine of negligence per se, she can allege penal code violations as a civil cause of action. (Cross Compl., ¶¶ 48-51; Oppo. p. 4:3-10.) However, Cross-Complainant misunderstands the application of the negligence per se doctrine. Negligence per se can be applied to establish a breach of due care under a negligence-related cause of action. (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210.) The Cross-Complaint does not include a negligence cause of action. Nor do Penal Code sections 470, 484, 488, or 532 contain a private right of action for their violation.

Accordingly, Cross-Defendants’ demurrer as to the second and third cause of actions is SUSTAINED WITHOUT LEAVE TO AMEND.

C. Fourth Cause of Action – Abuse of Process

“The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed. [Citation.]” (S.A. v. Maiden (2014) 229 Cal.App.4th 27, 41.) A cause of action for abuse of process requires a plaintiff to allege that a defendant “(1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” (Yee v. Superior Court (2019) 31 Cal.App.5th 26, 34.)

Here, although not entirely clear, Cross-Complainant appears to allege that Cross-Defendant Lim initiated the action for the improper purpose of harassment and elicitation of money. (Cross Compl., ¶ 19, 59.) However, merely filing a lawsuit, even one for an improper purpose, is not a proper basis for an abuse of process cause of action. (S.A. v. Maiden, supra, 229 Cal.App.4th at 42 [“[C]ontinued pursuit of meritless litigation for an improper collateral purpose, although actionable under malicious prosecution principles, is not separately actionable under an abuse of process theory”].)

As Cross-Complainant has not made any allegations beyond an improper purpose, Cross-Defendants’ demurrer as to the fourth cause of action is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND.

IV. Conclusion & Order

For the foregoing reasons, Cross-Defendants Young K. Lim and Jin Ree’s Demurrer to Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to the second and third causes of action and SUSTAINED WITH THIRTY (30) DAYS’ LEAVE FOR CROSS-COMPLAINANT TO AMEND AS TO THE FIRST AND FOURTH CAUSES OF ACTION.

Moving parties are ordered to give notice.

Case Number: 19STLC03994    Hearing Date: February 04, 2020    Dept: 25

DEMURRER

(CCP § 430.41)

TENTATIVE RULING:

Cross-Defendants Young K. Lim and Jin Ree’s Demurrer to Cross-Complaint is CONTINUED to MARCH13, 2020 at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE. AT LEAST 16 COURT DAYS PRIOR TO THE NEW HEARING DATE, CROSS-DEFENDANTS MUST FILE A SUPPLEMENTAL DECLARATION CORRECTING THE DEFICIENCIES DISCUSSED HEREIN. FAILURE TO DO SO MAY RESULT IN THE DEMURRER BEING PLACED OFF CALENDAR OR DENIED.

ANALYSIS:

I. Background

On April 24, 2019, Plaintiff Young K. Lim (“Plaintiff”) filed an action for breach of contract, common counts, and violation of Civil Code section 1719 (action for dishonored checks) against Defendant Ok Joo Kim (“Defendant”).

On July 12, 2019, Defendant filed an Answer and a Cross-Complaint against Plaintiff and Jin Ree (collectively, “Cross-Defendants”). On August 9, 2019, Cross-Defendants filed a Demurrer to Defendant’s Cross-Complaint (the “Demurrer”).

On October 29, 2019, the Court continued the hearing on the Demurrer because it did not include a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a). (10/29/19 Minute Order.)

II. Legal Standard & Discussion

“Before 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 the demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) (Italics added.)

On December 9, 2019, Cross-Defendants filed a Reply to Opposition to Demurrer, which is just a declaration regarding their meet and confer efforts. Specifically, Cross-Defendants allege that they inadvertently left out a meet and confer letter from their moving papers and attach said letter sent to Defendant on August 7, 2019. (Ree Decl., Exh. A.) Cross-Defendants also attach an “amended and supplemented” letter sent to Defendant on December 1, 2019. (Ree Decl., Exh. B.) It states the letter “is an informal attempt to meet and confer with [Defendant] regarding the demurrer” and warns “[i]f this case is not settled on/before 1/20/2020 the demurrer will continue to be effective.” (Id.) The rest of the letter deals with Cross-Defendants’ request for production of documents. (Id.)

Because Code of Civil Procedure section 430.41, subsection (a), requires that parties meet and confer in person or by telephone, the Court finds the attached meet and confer letters insufficient. Accordingly, Cross-Defendants are ordered to meet and confer in person or by telephone and file a supplemental declaration attesting to such efforts at least 16 court days before the new hearing date.

III. Conclusion & Order

For the foregoing reasons, Cross-Defendants Young K. Lim and Jin Ree’s Demurrer to Cross-Complaint is CONTINUED to MARCH 13, 2020, at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE. AT LEAST 16 COURT DAYS PRIOR TO THE NEW HEARING DATE, CROSS-DEFENDANTS MUST FILE A SUPPLEMENTAL DECLARATION CORRECTING THE DEFICIENCIES DISCUSSED HEREIN. FAILURE TO DO SO MAY RESULT IN THE DEMURRER BEING PLACED OFF CALENDAR OR DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC03994    Hearing Date: October 29, 2019    Dept: 94

DEMURRER TO CROSS-COMPLAINT

(CCP § 430.10)

TENTATIVE RULING:

Cross-Defendants Young K. Lim and Jin Ree’s Demurrer to Cross-Complaint is CONTINUED TO FEB. 4, 2019 at 8:30 a.m. in Department 94.

ANALYSIS:

I. Background

After Plaintiff Young K. Lim (“Lim”) initiated this action against Defendant Ok Joo Kim (“Kim”) to recover on a check with insufficient funds, Kim filed a Cross-Complaint against Lim and Jin Ree (“Ree”) on July 12, 2019. In response, Lim and Ree filed a Demurrer to the Cross-Complaint on August 9. Kim filed an Opposition on October 18.

II. Failure to Meet and Confer

“Before 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.” (CCP § 430.41(a), emphasis added.) “As part of the meet and confer process, the [moving] party shall identify all of the specific causes of action that it believes are subject to demurrer [and motion to strike] and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.” (Id. § 430.41(a)(1).)

There is no meet-and-confer declaration attached to the Demurrer. Thus, the Court cannot consider the Demurrer at this time. As the Court of Appeal explained, good faith meet-and-confer requires Defendants “to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) Lim and Ree must meet and confer good faith with Kim, as mandated by CCP § 430.41(a), to resolve their objections before seeking judicial intervention through the instant Demurrer. If Kim agrees to amend the Cross-Complaint to address the issues raised in the Demurrer, then there would be no need for the Court to rule on it.

III. Conclusion & Order

In light of the foregoing, the Demurrer is CONTINUED TO FEB. 4, 2019 at 8:30 a.m. in Department 94.

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.