This case was last updated from Los Angeles County Superior Courts on 10/05/2020 at 03:57:37 (UTC).

CHING FANG HSU VS. TSING CHIANG LIN

Case Summary

On 01/04/2018 CHING FANG HSU filed a Property - Other Property Fraud lawsuit against TSING CHIANG LIN. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is RALPH C. HOFER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7850

  • Filing Date:

    01/04/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RALPH C. HOFER

 

Party Details

Plaintiff

HSU CHING FANG

Defendants and Not Classified By Court

LIN TERI AN INDIVIDUAL

LIN CHUNG YING

LIN TSING CHIANG AN INDIVIDUAL

LIN TSING

LIN TERI

Attorney/Law Firm Details

Plaintiff Attorneys

LIU LONG Z.

LIU LONG Z

SHYN CASIO

Defendant Attorneys

GARY F. WANG LAW OFFICES OF

WANG GARY FONG

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW NON-APPEARANCE CASE REVIEW COURT O...) OF 04/27/2020

4/27/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW NON-APPEARANCE CASE REVIEW COURT O...) OF 04/27/2020

Reply - REPLY PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

11/27/2019: Reply - REPLY PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Declaration - DECLARATION OF DEFENDANT, TSING CHIANG LIN, IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

11/22/2019: Declaration - DECLARATION OF DEFENDANT, TSING CHIANG LIN, IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Declaration - DECLARATION OF DEFENDANT, CHUNG YING LIN, IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

11/22/2019: Declaration - DECLARATION OF DEFENDANT, CHUNG YING LIN, IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Declaration - DECLARATION OF DEFENDANT, CHUNG YING LIN, IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

11/22/2019: Declaration - DECLARATION OF DEFENDANT, CHUNG YING LIN, IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Declaration - DECLARATION OF DEFENDANT, TSING CHIANG LIN, IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

11/22/2019: Declaration - DECLARATION OF DEFENDANT, TSING CHIANG LIN, IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Objection - OBJECTION TO PLAINTIFFS EVIDENCE

11/22/2019: Objection - OBJECTION TO PLAINTIFFS EVIDENCE

Opposition - OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION, AND MEMORANDUM OF POINTS AND AUTHORITIES

11/22/2019: Opposition - OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION, AND MEMORANDUM OF POINTS AND AUTHORITIES

Separate Statement

8/13/2019: Separate Statement

Motion for Summary Judgment

8/13/2019: Motion for Summary Judgment

Summons

1/4/2018: Summons

Legacy Document - LEGACY DOCUMENT TYPE: Demurrer

3/14/2018: Legacy Document - LEGACY DOCUMENT TYPE: Demurrer

Legacy Document - LEGACY DOCUMENT TYPE: Opposition

3/27/2018: Legacy Document - LEGACY DOCUMENT TYPE: Opposition

Legacy Document - LEGACY DOCUMENT TYPE: Demurrer

6/22/2018: Legacy Document - LEGACY DOCUMENT TYPE: Demurrer

Legacy Document - LEGACY DOCUMENT TYPE: Opposition

8/31/2018: Legacy Document - LEGACY DOCUMENT TYPE: Opposition

Minute Order - Minute order entered: 2018-09-28 00:00:00

9/28/2018: Minute Order - Minute order entered: 2018-09-28 00:00:00

Legacy Document - LEGACY DOCUMENT TYPE: Order

9/28/2018: Legacy Document - LEGACY DOCUMENT TYPE: Order

Answer - Answer And Affirmative Defenses to Second Amended Complaint

10/29/2018: Answer - Answer And Affirmative Defenses to Second Amended Complaint

46 More Documents Available

 

Docket Entries

  • 08/02/2021
  • Hearing08/02/2021 at 09:00 AM in Department D at 600 East Broadway, Glendale, CA 91206; Jury Trial

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  • 07/22/2021
  • Hearing07/22/2021 at 09:00 AM in Department D at 600 East Broadway, Glendale, CA 91206; Final Status Conference

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  • 06/30/2021
  • Hearing06/30/2021 at 08:30 AM in Department D at 600 East Broadway, Glendale, CA 91206; Order to Show Cause Re: Mandatory Settlement Conference

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  • 12/01/2020
  • Hearing12/01/2020 at 08:30 AM in Department D at 600 East Broadway, Glendale, CA 91206; Status Conference

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  • 08/10/2020
  • Docketat 09:00 AM in Department D; Jury Trial (``) - Not Held - Advanced and Vacated

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  • 07/30/2020
  • Docketat 09:00 AM in Department D; Final Status Conference - Not Held - Advanced and Vacated

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  • 07/29/2020
  • DocketProof of Service by Mail; Filed by CHING FANG HSU (Plaintiff)

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  • 07/29/2020
  • DocketNotice of Ruling; Filed by CHING FANG HSU (Plaintiff)

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  • 07/28/2020
  • Docketat 08:30 AM in Department D; Hearing on Ex Parte Application (and Notice of Motion to1) Continue the Trial Date from the current Date of 08/10/2020 to a Future Date to be Set by Court; 2) Continue Discovery Cut-Off Date and All Other Related Dates filed on behalf of Plaintiff Ching Fang Hsu) - Held - Motion Granted

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  • 07/28/2020
  • DocketOrder (Granting Plaintiff Ching Fang Hsu's Ex Parte Application Form Motion To Continue Trial Date And All Other Related Dates Pursuant To The Newly Scheduled Trial Date); Filed by CHING FANG HSU (Plaintiff)

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86 More Docket Entries
  • 01/22/2018
  • DocketProof-Service/Summons; Filed by Attorney for Plaintiff

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  • 01/22/2018
  • DocketProof-Service/Summons; Filed by CHING FANG HSU (Plaintiff)

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  • 01/04/2018
  • DocketCivil Case Cover Sheet

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  • 01/04/2018
  • DocketSummons Filed

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  • 01/04/2018
  • DocketComplaint filed-Summons Issued

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  • 01/04/2018
  • DocketNotice (of OSC)

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  • 01/04/2018
  • DocketNotice of Case Management Conference

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  • 01/04/2018
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 01/04/2018
  • DocketSummons; Filed by null

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  • 01/04/2018
  • DocketComplaint filed-Summons Issued; Filed by null

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Tentative Rulings

Case Number: EC067850    Hearing Date: December 06, 2019    Dept: NCD

TENTATIVE RULING

Calendar: 7

Case Number: EC 067850

Date: 12/6/19 Trial date: February 10, 2020

Case Name: Hsu v. Lin, et al.

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

[CCP § 437c; CRC 3.1350 et seq.]

Moving Party: Plaintiff Ching Fang Hsu

Responding Party: Defendants Tsing Chiang Lin and Chung Ying Lin

Relief Requested:

Order granting summary judgment or, in the alternative, summary adjudication in favor of plaintiff Ching Fang Hsu

Causes of Action from Second Amended Complaint

  1. False Promise v. Lin

  2. Breach of Contract v. Lin

  3. Breach of Implied Covenant of Good Faith v. Lin

  4. Conversion v. All Defendants

  5. Conspiracy v. All Defendants

    SUMMARY OF COMPLAINT:

    Plaintiff Ching Fang Hsu alleges that in August of 2015, Hsu appointed defendant Tsing Chiang Lin (“Lin”) to have power of attorney over Hsu’s banking and other financial transactions. Plaintiff alleges that Hsu and Lin entered into an account agreement pursuant to which the sole owner of the CTBC account was Hsu, with Lin having power of attorney over the account. The complaint alleges that on October 17, 2017, Hsu deposited $150,000 into the bank account and on October 20, 2017, Lin withdrew $86,000 without telling Hsu about the withdrawal in advance, as the parties had agreed would be done.

    Plaintiff alleges that when Hsu asked Lin about the withdrawal, Lin responded that $76,000 was for a service fee and $10,000 was a storage fee and pre-paid income tax. Specifically, Lin alleged that the service fee was for nineteen months, at $4,000 per month, for half of regular salary per month for two persons. Hsu was aware, however, that the two employees had left their jobs in February of 2016, so no amount of salary needed to be paid to them. Hsu has sent demand letters to Lin for the return of the $86,000 sum, but defendants have failed to respond. It is also alleged that since October of 2015, defendants have made other unauthorized withdrawals from Hsu’s personal bank account.

    ANALYSIS:

    Procedural

    The motion here is brought by plaintiff Ching Fang Hsu, and confusingly seeks summary judgment, or, in the alternative summary adjudication, but does not address four of the five causes of action alleged in the operative complaint, the Second Amended Complaint, but focuses only on the cause of action for conversion. The motion also confusingly seeks summary adjudication of plaintiff’s “first cause of action for Conversion,” when conversion is the fourth cause of action in the Second Amended Complaint.

    In any case, under CCP § 437c(c)

    “(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

    The moving papers fail to address four of the causes of action, and, unless plaintiff by this motion intends to waive all but the conversion cause of action, the papers submitted do not show that moving party is entitled to a judgment on the SAC as a matter of law. Moreover, the pleading seeks punitive damages, both in the general prayer, and in the allegations supporting the fourth cause of action for conversion. [See SAC, Prayer ¶ 3; Fourth Cause of Action ¶ 93]. Punitive damages may not be awarded on a motion for summary judgment. Haines v. Parra (1987) 193 Cal.App.3d 1553, 1560-1561. Accordingly, unless plaintiff intends to waive any claim for punitive damages, the motion for summary judgment cannot be granted.

Similarly, to the extent plaintiff seeks summary adjudication of the cause of action for conversion, the burden of proof also requires that the motion dispose of the entire cause of action. Under CCP § 437c(p)(1) a plaintiff:

“has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff…has met that burden, the burden shifts to the defendant… to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Again, since the cause of action seeks punitive damages, which cannot be awarded, the motion fails to completely dispose of the conversion cause of action. Moreover, the motion confusingly seeks in the memorandum the amount of $172,736 which was wrongfully withdrawn from plaintiff’s bank account, but then seeks “$232,736, plus interest since 2013, the year when Lin started to withdraw the money from Plaintiff’s Bank Account.” [Memorandum, p. 11: 12-13]. The memorandum also seeks “attorneys’ fees and costs of $60,000.” [Memorandum, p. 11:13-14]. There is no evidence submitted with the motion that would support the $232,736 figure, no declaration showing an appropriate calculation of interest, and no facts submitted showing that attorneys’ fees are recoverable, or the amount of fees and costs incurred.

Generally, where plaintiff seeks summary adjudication of a cause of action which includes damages as an element, it is held that the summary judgment procedures obligate a plaintiff to prove each element of the cause of action, including damages. In Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, the court of appeal expressly held that where issues of the calculation of damages remain to be determined, it is not appropriate to grant summary judgment:

Although we have determined that Blockbuster is liable to appellant, Code of Civil Procedure section 437c makes no provision for a partial summary judgment as to liability. Even summary adjudication may be granted only in limited instances. (Code Civ. Proc., § 437c, subd. (f)(1).) Because issues of the calculation of damages apparently remain to be determined, it is not appropriate to grant summary judgment for appellant at this time. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1996) ¶ 10:40.1, p. 10-17 [summary judgment or adjudication improper where amount of damages raises factual issue].) The correct procedure below would have been a motion to bifurcate the issue of liability, which the parties could have tried upon the undisputed facts. (Code Civ. Proc., § 598.) A decision on the issue of liability against the party on whom liability is sought to be imposed does not result in a judgment until the issue of damages is resolved.

Department of Industrial Relations, at 1097.

Moreover, the reply argues that plaintiff was the rightful owner of the amount of $171,718 in plaintiff’s bank account, noting that the original motion’s calculation of damages as $172,736 was an error, due to the fact that one check was counted twice, and amounts written on checks resembled $.50 but were actually $.00. [See Reply, p. 9, n. 3]. The issue of the amount of damages is accordingly not resolved by the moving papers.

With respect to interest, pre-judgment interest is evidently sought pursuant to Civil Code section 3287(a), which provides:

“(a) Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any such debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.”

Pre-judgment interest is considered an element of damages. See North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 830 (“It is well established that prejudgment interest is not a cost, but an element of damages.”) Accordingly, to establish entitlement to such damages, plaintiff must submit proof to support the sum due. It is unlikely that interest on the entire sum claimed is due since 2013 (on an unspecified day), when Lin “started” to withdraw funds from plaintiff’s account. Instead, under the statute, each alleged converted sum would begin to accrue interest on the particular day the sum was withdrawn. The moving papers fail to establish the facts necessary to support the interest claimed, so the essential element of damages has not been sufficiently established by plaintiff.

Plaintiff has accordingly failed for several reasons to meet the initial burden on this motion of establishing entitlement to judgment or summary adjudication of the conversion claim as sought, and the motion could be denied without further consideration, but the court elects not to do so.

Substantive

As discussed above, the motion for summary judgment should be denied, as the motion does not address each cause of action and present evidence entitling plaintiff to an overall judgment in his favor.

The summary adjudication issue specified in the notice of motion is:

Issue No. 1: Plaintiff is entitled to Summary Adjudication of its first cause of action for Conversion because it is undisputed that Defendant TSING CHIANG Lin (“Defendant Lin”) wrote unauthorized checks to his wife, Defendant CHUNG YING LIN (“Defendant Ying”) (Collectively “Defendants”) out of Plaintiff’s personal bank account without his consent, which resulted in monetary damages of $172,736.

Again, as set forth above, plaintiff’s burden on a motion for summary adjudication is set forth in CCP § 437c(p)(1), which provides that a plaintiff:

“has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff…has met that burden, the burden shifts to the defendant… to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

To establish a cause of action for conversion, plaintiff must allege and prove the following elements: Ownership, or right to possession of property; wrongful disposition of property right; and damages. Imperial Valley Land Co. v. Globe Grain & Milling Co. (1921) 187 Cal. 352, 354-355.

Plaintiff Hsu submits his own declaration in which he states that he is the sole and rightful owner of a personal bank account, the CTBC Bank Account, that defendant Chung Ying Lin is plaintiff’s cousin, who is the wife of defendant Tsing Chang Lin, and that plaintiff never employed or contracted for defendants to work for him. [Hsu Decl. ¶¶ 2-5]. The declaration indicates that in August of 2015, defendant Tsing Lin was granted a first power of attorney over the CTBC Bank Account, authorizing defendant to write checks out of the account only for plaintiff or his family members or house, that plaintiff never authorized defendant to write checks to himself or his wife, and that defendants did not and cannot provide any proof or record for their out of pocket expenses they alleged to have occurred to plaintiff or his family. [Hsu Decl. ¶¶ 6-10]. A second power of attorney was granted on April 14, 2016, which prohibited taking compensation from exercising the power of attorney. [Hsu Decl. ¶ ¶ 17-19]. The declaration then details several checks written by Tsing Lin to his wife prior to the first power of attorney, after the first power of attorney, and after the second power of attorney, attesting that plaintiff did not consent to the withdrawal of each sum to the wife. [Hsu Decl. ¶¶ 11, 12, 14, 15, 21, 22, 24, 25, 27, 28, 30, 31, 33, 34, 36-55]. The declaration then states that in total, defendant Tsing Lin withdrew $172,736 from plaintiff’s bank account and deposited it all to his wife’s personal bank account, and that plaintiff did not consent to the issuance of those checks, but the withdrawals were made without authorization. [Hsu Decl. ¶¶ 56-58].

As discussed above, this showing is not as strong as it should be, given that the cause of action seeks punitive damages, and the moving papers seek, in addition to the $172,736, damages in the form of prejudgment interest, as well as attorneys’ fees and costs, which sums are not appropriately supported by the evidence submitted, and not mentioned in the separate statement. The motion could be denied on the ground the element of damages is not appropriately established to shift the burden to defendants to raise triable issues of material fact, but the court elects not to do so.

Even if the court were to find that the burden had shifted, defendants argue that triable issues of fact remain because plaintiff agreed to pay defendants for their services, so the payments they made to themselves were not wrongful.

As argued in the opposition:

“the law is well settled that there can be no conversion where an owner either expressly or impliedly assents to or ratifies the taking, use or disposition of his property.”

Farrington v. A. Teichert & Son, Inc. (1943) 59 Cal.App.2d 468, 474, citations omitted.

Defendant also relies on Tavernier v. Maes (1966) 242 Cal.App.2d 532, 552, in which the court of appeal recognized that consent negatives the wrongful element of certain alleged intentional torts, including the tort of conversion:

“As to intentional invasions of the plaintiff's interests, his consent negatives the wrongful element of the defendant's act and prevents the existence of a tort. 'The absence of lawful consent,' said Mr. Justice Holmes, 'is part of the definition of an assault.' The same is true of false imprisonment, conversion, and trespass.” (Prosser, op. cit., p. 102; and see Rest.2d Torts, § 50, com. b and illus. 4, 5 and 6.)”

Tavernier, at 552.

Defendants here submit their own declarations indicating that in 2001, plaintiff asked that defendants help him with taking care of his personal finances, as plaintiff lived in Taiwan, but his wife and three children lived in San Marino, California, and plaintiff did not want his wife to have access to the checking account. [Tsing Lin Decl. ¶¶ 2, 3; Chung Lin Decl. ¶ 2]. Defendants indicate that they agreed to help plaintiff, and that “Plaintiff agreed to pay us for our services.” [Tsing Lin Decl. ¶ 3; Chung Lin Decl. ¶ 3]. Defendants explain that they oversaw personal matters, including renovations, finding several school placements for a son who was suspended from various schools, and that at one point, defendants stopped assisting, but plaintiff begged defendants to come back, and as an incentive encouraged them to continue to pay themselves for their services. [Tsing Lin Decl. ¶¶ 5-13; Chung Lin Decl. ¶¶ 5-13]. Defendants testify that in October 2012, a check was written to Chung Lin “for payment for our services as Plaintiff had agreed,” and that they paid themselves reasonable fees for the personal services provided to plaintiff and his family. [Tsing Lin Decl. ¶¶ 13, 14; Chung Lin Decl. ¶¶ 13, 14].

Defendants also point out that the payments to defendant Chung Ying Lin were made over several years, during which plaintiff had full access to his banking records, and the payments were made to plaintiff’s cousin, defendant Chung Ying Lin, so were not hidden, and that plaintiff never objected or complained, which further supports, circumstantially, defendants’ position that the payments, or at least some of them, were authorized or consented to by plaintiff. [Tsing Lin Decl. ¶ 14; Chung Lin Decl. ¶ 14]. This is sufficient to raise triable issues on the issue of whether plaintiff consented to payment, so the withdrawals and checks to defendant Chung Ying Lin did not constitute conversion of funds. The motion is accordingly denied.

Moreover, defendants point out in opposition that the checks attached as Exhibit C to plaintiff’s declaration do not total $172,736, but by defendants’ calculations $166,718.50. [See Response to UMF No. 58]. Defendants’ Declarations also point out that the checks attached to the moving papers are confusing, including duplicates, incomplete copies, and do not all indicate they have been honored by the bank, so that any damages showing is uncertain. [Tsing Lin Decl. ¶ 15; Chung Lin Decl. ¶ 15]. As noted above, plaintiff concedes in the reply that the figure relied upon in the motion is not correct but requires adjustment. Triable issues accordingly remain with respect to the sum of damages as well.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Plaintiff Ching Fang Hsu’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED.

Motion for Summary Judgment is DENIED, as the motion does not address four of the five causes of action alleged in the operative complaint, the Second Amended Complaint, but focuses only on the cause of action for conversion. Under CCP § 437c(c)

“(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The moving papers fail to address four of the causes of action, and, unless plaintiff by this motion intends to waive all but the conversion cause of action, the papers submitted do not show that moving party is entitled to a judgment on the SAC as a matter of law. Moreover, the pleading seeks punitive damages, which may not be awarded on a motion for summary judgment. Haines v. Parra (1987) 193 Cal.App.3d 1553, 1560-1561.

Motion for Summary Adjudication:

Issue No. 1: Plaintiff is entitled to Summary Adjudication of its first cause of action for Conversion because it is undisputed that Defendant TSING CHIANG Lin (“Defendant Lin”) wrote unauthorized checks to his wife, Defendant CHUNG YING LIN (“Defendant Ying”) (Collectively “Defendants”) out of Plaintiff’s personal bank account without his consent, which resulted in monetary damages of $172,736.

Motion is DENIED. Under CCP § 437c(p)(1), a plaintiff:

“has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff…has met that burden, the burden shifts to the defendant… to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” Here, the moving papers fail to prove each element of the cause of action for conversion (the fourth cause of action), as the element of damages is not sufficiently established. Specifically, the cause of action seeks punitive damages, which may not be awarded on summary adjudication. The motion also seeks damages in a sum purportedly attributable to checks written on plaintiff’s account, which checks are not sufficiently clear to support a sum certain, and which plaintiff concedes in the reply is an incorrect sum. [See Ex. C; Reply, p. 9, n. 3]. Moreover, the moving papers seek pre-judgment interest as damages without submitting sufficient evidence to show the sum of such damages to which plaintiff claims to be entitled. [See Plaintiff’s Memorandum, p. 11: 12-13].

Plaintiff has accordingly failed to meet his initial burden of proving each element of the cause of action, so that the burden does not shift to defendants to raise triable issues of material fact.

Even if the burden had shifted, defendants have raised triable issues of material fact with respect to whether the damages sought are supported, based on review of the incomplete and confusing checks attached to the moving papers. [See Response to UMF No. 58; Plaintiff’s Exhibit C; Tsing Lin Decl. ¶ 15; Chung Lin Decl. ¶ 15]. Moreover, defendants have raised triable issues of material fact with respect to whether plaintiff can establish that all subject checks were written to defendant Chung Lin without the consent and authorization of plaintiff, so constituted actionable conversion. See Farrington v. A. Teichert & Son, Inc. (1943) 59 Cal.App.2d 468, 474, (“the law is well settled that there can be no conversion where an owner either expressly or impliedly assents to or ratifies the taking, use or disposition of his property.”) Specifically, defendants submit evidence supporting a reasonable inference that plaintiff assented to the withdrawal of funds as payment to defendants for their services. Defendants indicate that they agreed to help plaintiff, and that “Plaintiff agreed to pay us for our services,” and that after they stopped assisting plaintiff he requested that they continue their services, and as an incentive encouraged them to continue to pay themselves for the services. [Tsing Lin Decl. ¶¶ 3, 13; Chung Lin Decl. ¶¶ 3, 13; Additional Fact No. 60, and evidence cited]. Defendants also point out that the payments to defendant Chung Ying Lin were made over several years, during which plaintiff had full access to his banking records, and the payments were made to plaintiff’s cousin, defendant Chung Ying Lin, so were not hidden, and that plaintiff never objected or complained, which further supports defendants’ position that at least some of the payments at issue were authorized or consented to by plaintiff. [Tsing Lin Decl. ¶ 14; Chung Lin Decl. ¶ 14]. This is sufficient to raise triable issues on the issue of whether plaintiff consented to payment, so the withdrawals and checks to defendant Chung Ying Lin did not constitute conversion of funds.

Defendants’ Objections to Plaintiff’s Evidence are OVERRULED. The court has not considered the testimony of plaintiff in his declaration binding on the ultimate legal issues in this matter, such as the legal effect of the power of attorney language.