This case was last updated from Los Angeles County Superior Courts on 12/23/2020 at 15:12:10 (UTC).

CRUISE WORLDWIDE, LTD. VS MICHAEL MIN CHIN LIN

Case Summary

On 09/05/2017 CRUISE WORLDWIDE, LTD filed a Personal Injury - Assault/Battery/Defamation lawsuit against MICHAEL MIN CHIN LIN. This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. MATZ, WILLIAM D. STEWART and CURTIS A. KIN. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7255

  • Filing Date:

    09/05/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Assault/Battery/Defamation

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. MATZ

WILLIAM D. STEWART

CURTIS A. KIN

 

Party Details

Plaintiffs and Defendants

RC CRUISES INTERNATIONAL CO. LTD.

LU LI-LIN

LU TERESA

CRUISE WORLDWIDE LTD.

Defendants

LIN MIN CHIN

LIN MICHAEL MIN CHIN

LIN MICHAEL

LIN MICHAEL KAI TI

CRUISE WORLDWIDE RC CO. LTD.

RC CRUISES INTERNATIONAL CO. LTD.

Attorney/Law Firm Details

Plaintiff Attorneys

MILLER BARONDESS LLP

BOSKO DAVID

MILLER LOUIS R.

Defendant Attorneys

LAW OFFICES OF PAUL P. CHENG

CHENG PAUL PO REN

 

Court Documents

Proof of Service (not Summons and Complaint)

12/4/2017: Proof of Service (not Summons and Complaint)

Legacy Document - LEGACY DOCUMENT TYPE: REQUEST FOR DISMISSAL-PARTIAL

12/4/2017: Legacy Document - LEGACY DOCUMENT TYPE: REQUEST FOR DISMISSAL-PARTIAL

Legacy Document - LEGACY DOCUMENT TYPE: SUMMARY

12/4/2017: Legacy Document - LEGACY DOCUMENT TYPE: SUMMARY

Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

12/4/2017: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

Legacy Document - LEGACY DOCUMENT TYPE: DEFAULT ENTERED

12/4/2017: Legacy Document - LEGACY DOCUMENT TYPE: DEFAULT ENTERED

Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

12/4/2017: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION

1/5/2018: Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION

Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

1/5/2018: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

Proof of Personal Service

1/5/2018: Proof of Personal Service

Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

1/5/2018: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

1/5/2018: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION

1/5/2018: Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION

Proof of Service (not Summons and Complaint)

1/5/2018: Proof of Service (not Summons and Complaint)

Legacy Document - LEGACY DOCUMENT TYPE: REPLY

1/11/2018: Legacy Document - LEGACY DOCUMENT TYPE: REPLY

Notice - NOTICE OF ERRATA AND CORRECTION TO DEFENDANT'S REPLY ISO DEFENDANT'S MOTION TO VACATE AND SET ASIDE ENTRY OF DEFAULTS

1/12/2018: Notice - NOTICE OF ERRATA AND CORRECTION TO DEFENDANT'S REPLY ISO DEFENDANT'S MOTION TO VACATE AND SET ASIDE ENTRY OF DEFAULTS

Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

1/16/2018: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

Legacy Document - LEGACY DOCUMENT TYPE: NOTICE

1/19/2018: Legacy Document - LEGACY DOCUMENT TYPE: NOTICE

Minute Order - MINUTE ORDER ENTERED: 2018-01-19 00:00:00

1/19/2018: Minute Order - MINUTE ORDER ENTERED: 2018-01-19 00:00:00

171 More Documents Available

 

Docket Entries

  • 02/09/2021
  • Hearing02/09/2021 at 08:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Case Management Conference

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  • 12/21/2020
  • DocketDeclaration (OF DEMURRING OR MOVING PARTY IN SUPPORT OF AUTOMATIC EXTENSION); Filed by RC CRUISES INTERNATIONAL CO., LTD. (Defendant); MICHAEL MIN CHIN LIN (Defendant); MICHAEL LIN (Defendant)

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  • 12/15/2020
  • DocketNotice of Appearance; Filed by LI-LIN LU (Plaintiff); CRUISE WORLDWIDE, LTD. (Plaintiff); TERESA LU (Plaintiff)

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  • 12/14/2020
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Status Conference - Not Held - Advanced and Vacated

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  • 12/14/2020
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Status Conference (re Stay of Proceedings only) - Held - Continued

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  • 12/14/2020
  • DocketOrder ((re: Petition for Review)); Filed by Clerk

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  • 12/14/2020
  • DocketMinute Order ( (Status Conference re Stay of Proceedings only)); Filed by Clerk

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  • 11/24/2020
  • DocketOrder by the Second Appellate District - Division Five; Filed by Clerk

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  • 10/21/2020
  • Docketat 4:09 PM in Department A, William D. Stewart, Presiding; Court Order

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  • 10/21/2020
  • DocketMinute Order ( (Court Order re STAY OF PROCEEDINGS)); Filed by Clerk

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297 More Docket Entries
  • 10/19/2017
  • DocketDefault Entered (*DEFAULT VACATED AND SET ASIDE BY ORDER OF JUDGE LAURA A. MATZ ISSUED JANUARY 19, 2018* ); Filed by Attorney for Plaintiff

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  • 10/19/2017
  • DocketDefault Entered; Filed by CRUISE WORLDWIDE, LTD. (Plaintiff)

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  • 10/19/2017
  • DocketDefault Entered; Filed by LI-LIN LU (Plaintiff); TERESA LU (Plaintiff)

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  • 09/20/2017
  • DocketProof of Service (not Summons and Complaint); Filed by CRUISE WORLDWIDE, LTD. (Plaintiff); TERESA LU (Plaintiff)

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  • 09/20/2017
  • DocketProof of Service; Filed by Attorney for Plaintiff

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  • 09/20/2017
  • DocketProof of Service (not Summons and Complaint); Filed by LI-LIN LU (Plaintiff); CRUISE WORLDWIDE, LTD. (Plaintiff); TERESA LU (Plaintiff)

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  • 09/05/2017
  • DocketComplaint filed-Summons Issued

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  • 09/05/2017
  • DocketSummons Filed

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  • 09/05/2017
  • DocketSummons; Filed by null

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  • 09/05/2017
  • DocketComplaint filed-Summons Issued; Filed by null

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Tentative Rulings

Case Number: ****7255 Hearing Date: August 17, 2022 Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

CRUISE WORLDWIDE, LTD. , et al.;

Plaintiffs,

vs.

MICHAEL MIN CHIN LIN , et al.,

Defendants.

Case No.:

****7255

Hearing Date:

August 17, 2022

Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

RENEWED MOTION TO SUBSTITUTE A SUCCESSOR-IN-INTEREST FOR DECEASED DEFENDANT MICHAEL LIN

MOVING PARTY: Plaintiffs Cruise Worldwide, Ltd. and Teresa Lu

RESPONDING PARTY: N/A

Renewed Motion to Substitute a Successor-in-Interest for Deceased Defendant Michael Lin

The court considered the moving papers filed in connection with this motion. No opposition was filed.

BACKGROUND

Plaintiffs Cruise Worldwide, Ltd. and Teresa Lu filed this action on September 5, 2017 against Defendants Michael Lin and RC Cruises International Co., Ltd. (“RC Cruises”). Plaintiffs allege that they entered into a partnership with Mr. Lin and his company, RC Cruises, to sell Royal Caribbean cruises to customers in Taiwan. However, Plaintiffs allege that after disputes over profit-sharing, Mr. Lin undertook a campaign to steal the entire business from Plaintiffs. This lawsuit followed.

On November 12, 2021, Mr. Lin passed away in Taiwan. On June 8, 2022, Audrey Ellen Liu was appointed by the probate court as Special Administrator of the Estate of Michael Lin. (Bosko Decl., 4, Ex. A.) Letters of Administration were issued on June 17, 2022. (Bosko Decl., 5, Ex. B.) On June 21, 2022, Plaintiffs filed their creditor’s claim against the Estate. (Bosko Decl., 6, Ex. C.) On July 22, 2022, Plaintiffs’ probate counsel notified the Special Administrator that they would deem their claim rejected pursuant to Probate Code section 9256. (Bosko Decl., 7, Ex. D.)

Plaintiffs now move for an order substituting the Special Administrator of the Estate of Michael Lin in his place as defendant in this action, pursuant to Code of Civil Procedure section 377.31.

DISCUSSION

Code of Civil Procedure section 377.31 provides: “On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” A personal representative is an “executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to Section 7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status.” (Prob. Code, 58, subd. (a).)

Pursuant to Probate Code section 9370, an action pending against the decedent at the time of death may not be continued against the decedent’s personal representation unless a claim is filed in probate, the claim is rejected in whole or in part, and within three months of the rejection, the plaintiff applies for an order to substitute the personal representation in the action.

The court finds that the applicable requirements have been met. In light of the lack of an opposition, the court finds good cause to substitute the Special Administrator of the Estate of Michael Lin in the place of the decedent as a defendant in the instant action.

CONCLUSION

Based on the foregoing, the court grants Plaintiffs’ motion.

Plaintiffs are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: August 17, 2022

Colin Leis

Judge of the Superior Court



Case Number: ****7255 Hearing Date: March 1, 2022 Dept: 3

Superior Court of California

County of Los Angeles – NORTHEAST District

Department 3

cruise worldwide, ltd. , et al.;

Plaintiffs,

vs.

michael min chin lin , et al.,

Defendants.

Case No.:

****7255

Hearing Date:

March 1, 2022

Time:

8:30 a.m.

[Tentative] Order RE:

MOTION TO SUBSTITUTE MICHAEL LIN’S SUCCESSOR-IN-INTEREST FOR DECEASED DEFENDANT MICHAEL LIN

MOVING PARTY: Plaintiffs Cruise Worldwide, Ltd. and Teresa Lu

RESPONDING PARTY: Defendants Michael Lin and RC Cruises International Co., Ltd.

Motion to Substitute Michael Lin’s Successor-in-Interest for Deceased Defendant Michael Lin

The court considered the moving, opposition, and reply papers filed in connection with this motion.

BACKGROUND

Plaintiffs Cruise Worldwide, Ltd. and Teresa Lu filed this action on September 5, 2017 against Defendants Michael Lin and RC Cruises International Co., Ltd. (“RC Cruises”). Plaintiffs allege that they entered into a partnership with Mr. Lin and his company, RC Cruises, to sell Royal Caribbean cruises to customers in Taiwan. However, Plaintiffs allege that after disputes over profit-sharing, Mr. Lin undertook a campaign to steal the entire business from Plaintiffs. This lawsuit followed.

On November 12, 2021, Mr. Lin passed away in Taiwan. Plaintiffs were informed of Mr. Lin’s passing on or about November 17, 2021. (Bosko Decl., 4, Ex. A.) Plaintiffs requested that Defendants stipulate to substitute Mr. Lin’s estate for Mr. Lin in this action, but counsel for Defendants responded that there was currently no executor or administrator of the estate to sign such a stipulation. (Bosko Decl., 8.) Plaintiffs and their counsel are unaware of the pendency of any proceeding in California for the administration of Mr. Lin’s estate. (Bosko Decl., 9.)

Plaintiffs now move for an order substituting Mr. Lin’s successor-in-interest in his place as defendant in this action, pursuant to Code of Civil Procedure section 377.31.

DISCUSSION

As noted by Defendants in opposition, Plaintiffs have not identified a successor-in-interest for Mr. Lin. Until a successor-in-interest is identified, no order to substitute a successor-in-interest would be effective. Plaintiffs argue that a court order to substitute a successor-in-interest will assist them in finding and appointing a successor, but Plaintiffs have it backward. A successor-in-interest must first be identified, and then Plaintiffs may bring a motion to substitute that individual for Mr. Lin as a defendant in this action. (Code Civ. Proc., 377.40 et seq.)

CONCLUSION

Based on the foregoing, the court denies Plaintiffs’ motion without prejudice.

Plaintiffs are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: March 1, 2022

Colin Leis

Judge of the Superior Court



b'

Case Number: ****7255 Hearing Date: September 24, 2021 Dept: A

Motion for Sanctions

Calendar:

22

Case No.:

****7255

Hearing Date:

September 24, 2021

Action Filed:

September 5, 2017

Trial Date:

March 07, 2022

MP:

Plaintiffs Cruise Worldwide, Ltd.; Teresa Lu

RP:

Defendants RC Cruises International Co., Ltd.; Michael Lin

ALLEGATIONS:

In this action, Plaintiffs Cruise Worldwide, Ltd. ("CW") and Teresa Lu ("Lu", and together, "Plaintiffs") allege that they are in the business of selling cruise packages by Royal Caribbean and served as Royal Caribbean’s International Representative in Taiwan. Plaintiffs partnered with Defendants Michael Lin ("Lin") and RC Cruises International Co., Ltd. ("RC Cruises" and together, "Defendants"), and in April 2017, Lin asked Plaintiffs for a larger share of Cruise Worldwide’s gross profits, which Lu declined. Plaintiffs allege, thereafter, Lin engaged in a scheme to steal the company, renamed his company “Cruise Worldwide RC” to create confusion in the marketplace and mislead Plaintiffs’ customers, engaged in a smear campaign against Plaintiffs, and caused Royal Caribbean to end its 14-year relationship with Plaintiffs. Plaintiff also allege that Lin defrauded Lu out of a California bank account by promising she would be an authorized signatory to an account for commissions received from Royal Caribbean, but she was not provided access to the account as an authorized signatory.

Plaintiffs filed the Complaint on September 5, 2017, alleging twelve (12) causes of action sounding in: (1) Defamation Per Se; (2) Tortious Interference with Contractual Relations; (3) Intentional Interference with Prospective Economic Relations; (4) Negligent Interference with Prospective Economic Relations; (5) Fraud; (6) Conversion; (7) Breach of Contract; (8) Breach of the Implied Covenant of Good Faith and Fair Dealing; (9) Breach of Fiduciary Duty; (11) Violations of Business and Professions Code ;; 17200 et seq.; and (12) Declaratory Relief.

Defendants filed a Cross-Complaint ("XC") against Plaintiffs on September 09, 2021, alleging eight (8) causes of action sounding in: (1) Defamation Per Se; (2) Conversion; (3) Intentional Interference with Contractual Relations; (4) Intentional Interference with Prospective Economic Advantage; (5) Negligent Interference with Prospective Economic Advantage; (6) Fraud – Intentional Misrepresentation; (7) Business & Professions Code ; 17200; and (8) Accounting.

PRESENTATION:

The Court received the Motion for Sanctions filed by Plaintiffs on August 03, 2021; the opposition filed by Defendants on September 13, 2021; and the reply filed by Plaintiffs on September 17, 2021.

RELIEF REQUESTED:

Plaintiffs move for (1) monetary sanctions in the amount of $13,915 against both Defendants, jointly and severally, and (2) evidence sanctions against Defendants prohibiting them from presenting evidence with respect to RC Cruise\'s revenues, profits, or income from January 01, 2016 onward.

DISCUSSION:

Untimely Opposition – Although Defendants\' opposition brief is not untimely pursuant to CCP ; 1005(b), as it was filed nine court days before the hearing date, Plaintiffs argue that it was untimely pursuant to the parties\' agreement, which was that Plaintiffs would agree to postpone the instant hearing to September 24, 2021 under two conditions, one of which was that Defendants would file and serve their opposition no later than September 09, 2021. (Supp. Decl. Bosko, ¶ 3, Ex. 1.) Whether or not Defendants filed and served their opposition briefing in an untimely manner relating to the parties\' agreement, as Plaintiffs timely filed a reply, the Court finds that any delay is de minimis and will consider all filings.

Standard of Review – Monetary and Evidence Sanctions – When a party engages in misuse of the discovery process, the court may "impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence." (Code Civ. Proc., ; 2023.030, subd. (c).) Evidence sanctions may be imposed only after parties violated discovery orders, except in sufficiently egregious exceptional circumstances when the offending party engages in a pattern of willful discovery abuse. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1426.) The court may also impose a monetary sanction for reasonable expenses, including attorney\'s fees, against a party or attorney engaging in misuse of the discovery process. (Code Civ. Proc., ; 2023.030, subd. (a).)

The imposition of specific sanctions typically depends on the severity of the party’s transgression. “The trial court cannot impose sanctions for misuse of the discovery process as a punishment.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.) Rather, any given sanction must be “tailor[ed] to the harm caused by the withheld discovery.” (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 36) (superseded by statute on other grounds). This is because “the purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285, 301.)

Merits – Plaintiffs assert that (1) Defendants have provided little meaningful information in discovery; (2) Lin contradicted himself in sworn discovery responses; (3) Defendants refused to provide responses to a special interrogatory concerning RC Cruise\'s gross revenues from 2003 to the present, forced Plaintiffs to file a motion to compel further, and claimed that they had no responsive information after the Court granted the motion to compel further on May 21, 2021.

In opposition, Defendants first argue that Lin did not contradict himself in discovery responses. Plaintiffs argue that Lin claimed he did have any ownership interests in real property in California from 2016 to the present in response to Special Interrogatory No. 9, but claimed he did have ownership interests in California in response to Request for Admissions Nos. 16 and 17, the subjects of Plaintiffs\' successful motion to compel further. Defendants assert that the difference in response was based on Plaintiffs\' different definitions of the word "YOU" between the Special Interrogatory and the Requests for Admission. Lin responded that he did not have any interest in real property in California between January 2016 to the present date in response to Plaintiffs\' Special Interrogatory No. 9, which stated: "IDENTIFY all real property in which YOU have had an ownership interest from January 1, 2016 to the present", because the interrogatory defined "YOU" as "YOU and YOUR shall refer to Defendant Michael Min Chin Lin a/k/a Michael Lin or Min Chin Lin or Michael Kai Ti Lin and all agents, attorneys, affiliates, representatives and/or any person acting on your behalf". Defendants assert that this definition was conjunctive and meant that "YOU" was defined as Lin and "agents, attorneys, affiliates, representatives, and/or any person acting on your behalf." Defendants contrast this with the definition of "YOU" in the Requests for Admission, which is defined as "Michael Lin".

Second, Defendants argue that their opposition to the relevant motion to compel further was justified, as Defendants believed that discovery of RC Cruise\'s financial information required leave of court.

Third, Defendants argue generally that issue sanctions must be denied because they were not requested in the Notice of Motion; that issue and evidence sanctions are inappropriate because Plaintiffs failed to include a separate statement pursuant to CRC Rule 3.1345(a)(7); and that sanctions would be inappropriate generally because the instant motion is brought 61 days after the underlying motion to compel further, and also improperly seeks to penalize parties.

In reply, Plaintiffs argue that they did not request issue sanctions, that the Court should not consider Defendants\' opposition, as it was untimely, that Defendants\' arguments against evidentiary sanctions rely on technicalities, and that Defendants present no showing that their position was reasonable or in good faith.

As to the untimeliness argument, the Court has addressed it above. As to the CRC Rule 3.1345(a)(7) argument, while it is true that a motion for evidentiary sanctions must be accompanied by a separate statement, it is also true that the relevant underlying motion to compel further includes an attached separate statement that also informs the basis of the instant motion. In this circumstances, Plaintiffs\' lack of strict compliance with CRC Rule 3.1345(a)(7) is not itself dispositive.

As to the general discovery issues raised by Plaintiffs, which Defendants have not responded to, a general contention that a party has not produced enough evidence, without more, is not a basis for sanctions of any kind.

As to the contradictory discovery responses issue, on review of the definitional language highlighted by Defendants concerning the term "YOU" in the Special Interrogatory and the Requests for Admission, (Oppo., Exs. 3, 5), the Court finds that Defendants\' explanation is insufficient to account for Lin\'s contradictory responses. Defendants\' argument that they interpreted the clause "the term \'YOU\' and \'YOUR\' shall refer to Defendant Michael Min Chin Lin a/k/a Michael Lin or Min Chin Lin or Michael Kai Ti Lin and all agents, attorneys, affiliates, representatives and/or any PERSON acting on YOUR behalf" to mean specifically and only a conjunction of Lin and "agents, attorneys, affiliates, representatives, and/or any PERSON acting on YOUR behalf" is unreasonable on its face given the context of the propounded discovery. Further, even if the definition language could be read that way, the presence of the conjunction "or" indicates that "YOU" could also be defined as "Michael Min Chin Lin a/k/a/ Michael Lin" or "Min Chin Lin", and so Defendants had no reason to use only the most specific and strained definition of the word.

As to the bad faith argument concerning the motion to compel further, a belief that Defendants were not required to respond to discovery inquiring about a corporation\'s financial condition is valid for the purposes of opposing a discovery motion.

As to monetary sanctions, the Court finds that the above bases do not present sufficient bases to impose monetary sanctions, as Plaintiffs\' discovery issues concerning whether Lin owns property in California have now been fully resolved, with Defendants admitting that he does own property in California. Further, the Court does not find that Defendants\' opposition to Plaintiffs\' motion to compel represents grounds for sanctions. Monetary sanctions are not thus necessary as a remedy.

As to evidentiary sanctions, Plaintiffs do not present a sufficient showing that Defendants have demonstrated conduct to justify such sanctions. Both parties dispute whether or not Defendants are in possession of RC Cruise\'s financial information. This, on its own, is not a basis for evidentiary sanctions.

The Court will thus deny the instant motion in its entirety.

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiffs Cruise Worldwide, Ltd. and Teresa Lu\'s Motion for Sanctions came on regularly for hearing on September 24, 2021 with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR SANCTIONS IS DENIED.

DATE: _______________ _______________________________

JUDGE

'


b'

Case Number: ****7255 Hearing Date: July 23, 2021 Dept: A

Motion for Forum Non Conveniens;Demurrer;MTS

Calendar:

Add-On

Case No.:

****7255

Hearing Date:

July 23, 2021

Action Filed:

September 5, 2017

Trial Date:

March 07, 2022

MP:

Plaintiffs Cruise Worldwide, Ltd.; Teresa Lu

RP:

Defendants RC Cruises International Co., Ltd.; Michael Lin

ALLEGATIONS:

In this action, Plaintiffs Cruise Worldwide, Ltd. ("CW") and Teresa Lu ("Lu", and together, "Plaintiffs") allege that they are in the business of selling cruise packages by Royal Caribbean and served as Royal Caribbean’s International Representative in Taiwan. Plaintiffs partnered with Defendants Michael Lin ("Lin") and RC Cruises International Co., Ltd. ("RC Cruises" and together, "Defendants"), and in April 2017, Lin asked Plaintiffs for a larger share of Cruise Worldwide’s gross profits, which Lu declined. Plaintiffs allege, thereafter, Lin engaged in a scheme to steal the company, renamed his company “Cruise Worldwide RC” to create confusion in the marketplace and mislead Plaintiffs’ customers, engaged in a smear campaign against Plaintiffs, and caused Royal Caribbean to end its 14-year relationship with Plaintiffs. Plaintiff also allege that Lin defrauded Lu out of a California bank account by promising she would be an authorized signatory to an account for commissions received from Royal Caribbean, but she was not provided access to the account as an authorized signatory.

The Complaint, filed September 5, 2017, alleges causes of action for defamation per se, tortious interference with contractual relations, intentional and negligent interference with prospective economic relations, fraud, conversion, breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, violations of Business and Professions Code sections 17200 et seq., and declaratory relief.

PRESENTATION:

The Court received the motion for forum non conveniens, filed by Defendants, on January 21, 2021; the opposition, filed by Plaintiffs, on June 14, 2021; and the reply, filed by Defendants, on July 01, 2021.

The Court received the demurrer, filed by Defendants, on January 21, 2021; the opposition, filed by Plaintiffs, on June 14, 2021; and the reply, filed by Defendants, on July 01, 2021.

The Court received the motion to strike, filed by Defendants, on January 21, 2021; the opposition, filed by Plaintiffs, on June 14, 2021; and the reply, filed by Defendants, on July 01, 2021.

RELIEF REQUESTED:

Specially Appearing Defendants move to dismiss the action on the grounds of forum non conveniens.

Specially Appearing Defendants demur to the operative Complaint.

Specially Appearing Defendants move to strike the following portions of the operative Complaint:

1. Page 20:24

2. Paragraphs 70, 79, 89, 97, 103, 123; Page 20:23

ANALYSIS:

Forum Non Conveniens

Standard of Review – Motion for Forum Non Conveniens – “When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” (Code Civ. Proc., ; 410.30, subd. (a).) “In applying the traditional forum non conveniens analysis, the trial court must engage in a two-step process, on which the defendant bears the burden of proof. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751; Chong v. Superior Court (1997) 58 Cal.App.4th 1032 1037- 1038; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1462.) In the first step, the court must determine whether a suitable alternative forum exists. (Stangvik, supra, 54 Cal.3d at p. 751.) "If the court finds that a suitable alternative forum exists, it must then balance the private interests of the litigants and the interests of the public in retaining the action in California.” (Animal Film, LLC v. D.E.J. Productions, Inc. (2011) 193 Cal.App.4th 466, 472.) The trial court’s balancing is given substantial deference. (Chong, supra, 58 Cal.App.4th at p. 1038.)

"Neither inconvenience nor the additional expense of litigation in the selected forum is a factor to be considered. However, a forum selection clause will not be enforced if to do so would bring about a result contrary to the public policy of this state." (Intershop, supra, p. 199-200.)

Plaintiffs\' RJN – Judicial notice may not be taken of any matter, unless authorized or required by law. (Evid. Code, ; 450.) Matters that are subject to judicial notice are listed in Evidence Code ;; 451 and 452.

The Court will not take judicial notice of either Exhibit A or Exhibit B. Exhibit A is a translation that does not appear to be verified in any way. Exhibit B does not fall into any of the categories of Evidence Code ; 452.

Plaintiffs\' Objections – The Court will sustain Plaintiffs\' Objection Nos. 1-4 on the basis of lack of foundation and hearsay. The Court should overrule Plaintiffs\' Objection Nos. 5-10.

Merits – Suitable Alternative Forum – A suitable alternative forum exists if (1) another forum will provide the plaintiff with a remedy, (2) the defendant will be subject to the jurisdiction of the alternative forum, and (3) the plaintiff’s claims will not be barred by the statute of limitations of the alternative forum. (Stangvik, supra, 54 Cal.3d at 752; Roulier v. Cannondale (2002) 101 Cal.App.4th 1180, 1186.)

Defendants argue that Taiwan is a suitable forum because a there existed a "nearly identical suit" between the parties in Taiwan, where Lu caused a criminal complaint to be filed against Lin based on defamation ("Lu Taiwan Complaint"), but where the Taiwanese district attorney ultimately chose not to prosecute and made a factual determination that there was no defamation made because relevant statements were true. Defendants cite to what they represent to be a translated document attached as Exhibit 2 in support of this contention.

In opposition, Plaintiffs argue that Defendants have not shown that Taiwan is a suitable forum for the instant action. Plaintiffs cite to the same criminal complaint filed against Lin, cited by Defendants (Demurrer, Ex. 2, p. 8), and argue that the fact that Taiwanese prosecutors were unable to make a conclusive determination shows that Taiwan is not a suitable forum to adjudicate this dispute. Plaintiffs also argue that Lu filed a criminal complaint against Lin in Taiwan as well, ("Lin Taiwan Complaint") and the Taiwanese prosecutor also chose not to prosecute that complaint, and made a factual determination that Lu and Lin were partners. (Plaintiff\'s RJN, Ex. B, p. 17.) Plaintiffs further argue that this factual determination conflicts with a factual determination that Lu was an employee of Lin, made in the Lu Taiwan Complaint, which is one of multiple conflicting rulings between the two non-prosecuted criminal complaints demonstrating that Taiwan is not a suitable forum to conclusively adjudicate the instant action.

In reply, Defendants cite to Stangvik, supra, 54 Cal.3d at p. 752 and appear to argue that any questions surrounding "suitability" may be avoided with Defendants\' agreement to comply with appropriate conditions and stipulations to jurisdiction in Taiwan.

Although Defendants carry the burden to show that Taiwan is a suitable forum for the instant action on a motion to dismiss for forum non conveniens, they have not provided any evidence supporting a showing of Taiwan\'s suitability. The closest that Defendants come to providing such a showing is through implication, in arguing that prosecutors in the Taiwanese criminal court system have decided not to prosecute a complaint raised by Lu against Lin. This is not enough to show that Taiwan\'s civil court forum will provide Plaintiffs with an adequate remedy. Further, Defendants do not refute Plaintiffs\' assertion and showing that two Taiwanese criminal courts have come to two contradictory factual determinations regarding at least one fact in the parties\' Taiwanese complaint.

Defendants\' citation to Stangvik is also unavailing. The California Supreme Court in Stangvik ruled that the non-California courts presented suitable forums for trial of the actions because the defendants stipulated that they would submit to jurisdiction in those forums, and to tolling of the statute of limitations. (Stangvik, supra, 54 Cal.3d at p. 752.) But earlier in the opinion, the Supreme Court noted that "[t]he parties introduced conflicting evidence regarding plaintiffs\' legal rights and remedies in Scandinavia . . . ." (Id. at p. 750.) Here, Defendants argue that a Taiwanese forum will provide Plaintiffs with a remedy but cite to no evidence supporting this argument. Defendants only cite to their assertions that they will stipulate to any necessary conditions, and further argue that Taiwan has already provided a forum to litigate the subject matter. Even if the Court were to ignore that Taiwanese courts have only initiated, and then refused to prosecute, in criminal, rather than civil court, and accept that Taiwanese courts have already provided a forum to litigate the instant matter, this fact does not satisfy Defendants\' burden to show that Taiwan will provide Plaintiffs with a remedy, pursuant to Stangvik. The Court thus finds that Defendants do not satisfy their burden to show that Taiwan is a suitable forum to adjudicate the instant action under the doctrine of forum non conveniens.

The Court thus does not find that Taiwan is a suitable forum for the instant action. Nonetheless, the court will analyze the next point.

Public Private Interests – “If the court determines that a suitable alternative forum exists, it must decide whether the private and public interests, on balance, favor retaining the action in California.” (Animal Film, supra, 193 Cal.App.4th at 473.) “The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as (1) the ease of access to sources of proof, (2) the cost of obtaining attendance of witnesses, and (3) the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include (1) avoidance of overburdening local courts with congested calendars, (2) protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and (3) weighing the competing interests of California and the alternate jurisdiction in the litigation.” (Stangvik, supra, 54 Cal.3d at 751 [interior numbering added].)

Private Interest Factors – As to private interest factors, Defendants argue that the defamation underlying the action, the contract that was allegedly disrupted, most witnesses, most documents, and most evidence are based in Taiwan. Defendants also argue that most evidence will be in Taiwanese or Chinese, and most witnesses would prefer to speak in Taiwanese or Chinese, requiring the use of translators. Defendants assert that the Complaint\'s only references to California are that Lin is a resident of California, that CW has its principal place of business in California, that Defendants reside, conduct business, and own property in California, and that some Defendants caused harm to Plaintiffs in Los Angeles County in a single event.

In opposition, Plaintiffs argue that the Lin resides in California, and that other key evidence in the action is located in United States and in English. Plaintiffs assert that Royal Caribbean is an American company, and its witnesses and documents are key to the case because Lin used contacts at the company to commit wrongdoing, and Defendants have refused to provide their communications with Royal Caribbean. Plaintiffs also assert that East West Bank is headquartered in Pasadena, and that Lin used an East West Bank account to defraud and steal from Lu. Further, Plaintiffs argue that, as to translation issues, there is no advantage to having the case held in Taiwan, as the Taiwanese court would have similar problems translating documents from English; that it is possible to serve American subpoenas in Taiwan through the Taiwanese State Department, through a Taiwanese attorney; and that, as most depositions are currently held via Zoom, costs would be similar regardless of forum court. Finally, Plaintiffs contend that, as the Complaint alleges that Lin spent the majority of his time in California (Complaint, ¶ 4), the wrongful acts alleged would have occurred in California.

In reply, Defendants cite to Plaintiffs\' response to Special Interrogatory, Set One, No. 4 to show that the alleged defamation occurred in Taiwan. (Decl. Ching, Ex. 6.) Defendants also assert that Plaintiffs\' discovery responses show that most of their produced documents are in Taiwan or Singapore. (Decl. Ching, Ex. 7.)

Both parties argue, without supporting evidence, that key evidence is present in either Taiwan or California, and in either Taiwanese or Chinese, or English. Defendants argue, and Plaintiffs do not deny, that a substantial number of witnesses currently reside in Taiwan. Defendants show that the majority of Plaintiffs\' produced documents originate in either Taiwan or Singapore. In the absence of more definitive evidence regarding key document location, the Court credits Plaintiffs\' argument that their litigation strategy focuses on discovery pertaining to Royal Caribbean, and Plaintiffs\' allegation that Lin spent the majority of his time in California during the relevant period of alleged wrongdoing. Both parties contest Lin\'s residency during the relevant period; while Lin asserts through declaration that he has resided in Taiwan or Asia for three quarters of the year every year in the past, present, and future (Mot., Decl. Lin, ¶ 11) while Plaintiffs provide circumstantial evidence showing that Lin\'s California residence status (Decl. Bosko, ¶ 2, Ex. 1).

The ease of access to proof factor weighs in favor of California, in light of the Royal Caribbean connection. The cost of obtaining witness attendance does not weigh in favor of either forum, as despite the undisputed fact that numerous witnesses are currently based in Taiwan, the Royal Caribbean connection plausibly provides equally, if not more, important witnesses based in the United States. Finally, the availability of compulsory process factor also does not weigh in favor of either forum for the same reason, as a Taiwanese court is likely to have a similarly difficult time compelling American witnesses to appear, as a Californian court is to have compelling a Taiwanese witness.

The Court thus finds that the private interest factors weigh in favor of California.

Public Interest Factors – Both parties repeat many of the same arguments made on private interest factors. Defendants argue that the alleged defamation underlying the action occurred in Taiwan, allegedly in publications circulated only in China and Taiwan, that the alleged disrupted contract was performed in Taiwan, and that evidence, witnesses, and applicable law will all be Taiwanese.

In opposition, Plaintiffs argue that the allegedly disrupted contract is in English, invokes Florida law, involves an American company, may have been signed in the United States, and involves a payment made in the United States to a United States bank account. Plaintiffs further argue that California has a public interest in adjudicating allegations of wrongdoing against Lin, whom Plaintiffs contend is a California resident.

In reply, Defendants argue that all parties live outside California, and so California has no interest in providing a forum for disputes between nonresidents, involving claims outside California.

The Court finds that the action is a rather simple straightforward defamation/contract/interference action of which many are filed annually in this court and will not burden the courts; there are few parties and the action is not complex; potential jurors from the Los Angeles community likely have little concern for the subject matter of the instant action, but it is unlikely that any case of this nature would be of great interest to jurors. While Taiwan may have a greater interest (as a means of social control) in the litigation than California, as it is undisputed that the alleged defamation and contract disruption occurred in Taiwan, this sole factor is insufficient to outweigh the others.

The Court thus finds that the public interest factors do not weigh in favor of either jurisdiction.

Accordingly, the Court finds that: (1) Defendants have not met their burden to show that Taiwan is a suitable forum for the purposes of a forum non conveniens motion; (2) private interest factors weigh in favor of adjudication in California; and (3) public interest factors do not weigh in favor of adjudication in either California or Taiwan. The Court will thus deny the instant motion.

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Demurrer

Standard of Review – Demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civ. Proc. ; 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to Code Civ. Proc. ;; 430.10(e) and (f), the party against whom a complaint has been filed demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

Meet and Confer – CCP ; 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. (Code Civ. Proc., ; 430.41.) The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (Code Civ. Proc., ;; 430.41, subd. (a)(4); 435.5 subd. (a)(4).)

On review of the Declaration of David T. Ching, the Court finds that meet and confer requirements have been satisfied to code. (Decl. Ching, ¶ 9, Ex. 1.)

Merits – Specially Appearing Defendants (further referred to as "Defendants") demur on the grounds of forum non conveniens and on the grounds of res judicata and collateral estoppel. The forum non conveniens argument is not a grounds upon which the Court may sustain a demurrer, as the only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.) The Court will thus disregard this issue.

As to the res judicata and collateral estoppel arguments, res judicata, or claim preclusion, prevents the relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. (Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal. App. 4th 547, 556.) For collateral estoppel, prior judgment operates in a second suit based on a different cause of action as an estoppel as to issues in the second action that were actually litigated and determined in the first action. (People v. Barragan (2004) 32 Cal.4th 236, 252.) Res judicata or collateral estoppel apply if: “(1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.” (Boekenn v. Philip Morris USA, Inc. (2010) 48 Cal. 4th 788, 797.)

Defendants assert that the basis for res judicata or collateral estoppel is a criminal case initiated by Lu in Taiwan, where the prosecutor chose not to prosecute, and the criminal court made certain findings. Defendants cite to no authority supporting the contention that a Taiwanese, or indeed any, prosecutor\'s decision not to prosecute constitutes a "final judgment on the merits". As Defendants make no further arguments on demurrer, the Court should overrule the demurrer.

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MTS

Standard of Review – Motion to Strike – The proper procedure to attack false allegations in a pleading is a motion to strike. (Code Civ. Proc., ; 436, subd. (a).) In granting a motion to strike made under CCP ; 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., ; 436, subd. (a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (Code Civ. Proc., ; 431.10.) The court may also “[s]trike 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).)

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.) “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299) (internal quotations omitted).

Oppression – First, Civil Code ; 3294(c)(2) defines “oppression” as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”

Fraud – Next, under Civil Code ; 3294(c)(3), “fraud” is defined as “intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Moreover, as noted in Lehto v. Underground Constr. Co. (1977) 69 Cal.App.3d 933, to plead fraud as a basis for punitive damages, the plaintiff must allege “the facts and circumstances which constitute the fraud … clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” (Lehto v. Underground Constr. Co. (1977) 69 Cal.App.3d 933, 944.)

Malice – Finally, under Civil Code ; 3294(c)(1), “malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted).)

Meet and Confer – CCP ; 435.5(a) provides that before filing a motion to strike, 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 if an agreement can be reached that resolves the objections to be raised in the motion to strike.

On review of the Declaration of David T. Ching, the Court finds that meet and confer requirements have been satisfied to code. (Decl. Ching, ¶ 4, Ex. 1.)

Merits – Defendants argue that the portions of the Complaint requesting attorney\'s fees should be stricken because there are no statutory grounds or contract terms that specify Plaintiff\'s entitlement to such fees. Defendants also argue that Plaintiffs cannot claim punitive damages for a fraud claim or a conversion claim arising out of a contract, and that the Complaint does not sufficiently allege reckless, malicious, oppressive, or fraudulent conduct as to the claims for defamation, tortious interference with contractual relations, or intentional and negligent interference with prospective economic relations.

In opposition, Plaintiffs argue that the Court should "leave open the possibility" for Plaintiffs to recover attorney fees as a penalty due to Defendants\' having purportedly lied in their discovery responses. As to punitive damages, Plaintiffs assert that the defamation allegations are sufficiently supported by various allegations of defamatory quotes (Complaint, ¶¶ 9, 38, 46), and that fraud and conversion claims sufficiently allege intentionally tortious conduct (Complaint, ¶¶ 100). Finally, Plaintiffs argue that the Complaint generally sufficiently pleads factual allegations to support allegations of oppression, malice, and fraud.

As to the prayer for attorney fees, the Court finds that Plaintiffs fail to refute Defendants\' argument that Plaintiffs allege no grounds entitling them to such a recovery. Plaintiffs cite to no authority allowing them to include a prayer for attorney fees for the purposes of securing a future penalty against Defendants. The Court further finds that Plaintiffs implicitly concede the argument by arguing only that the Court should "leave open the possibility" for recovery of attorney fees, rather than providing any substantive arguments. The Court should thus grant the instant motion as to the attorneys\' fees and costs prayers in the Complaint.

As to the punitive damage allegations, the Court finds that the Complaint makes sufficient factual allegations to support prayers for punitive damages as to the claims for defamation, tortious interference with contractual relations, intentional and negligent interference with prospective economic relations, and breach of fiduciary duty. The Complaint alleges that Lin changed his company\'s name to a name similar to CW (Complaint, ¶ 35), published and spread defamatory statements about Lu (Complaint, ¶¶ 36, 44-45), and made false statements to CW\'s client, Royal Caribbean, in order to interfere with Lu\'s business relationships and steal Plaintiffs\' goodwill and clientele (Complaint, ¶¶ 38-41). These allegations are enough to support the Complaint\'s allegations of malice and oppression, and thus, punitive damages, on a motion to strike. The Court further finds that the fraud and conversion claims relate to, but do not arise from, a breach of contract claim, as, contrary to Defendants\' argument, the Complaint does not allege that the agreement between the parties required that Lu be an authorized signatory. The underlying allegation for both fraud and conversion claims is that Lin represented to Lin that she would be an authorized signatory for an account for the purpose of converting the funds in the account. (Complaint, ¶¶ 91-100.) The Court will not read in an implication that such a requirement was present in the agreement between the parties.

Accordingly, the Court should grant the motion to strike as to the attorney fee prayers and deny the motion to strike as to the punitive damage prayers.

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RECOMMENDED RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Specially Appearing Defendants RC Cruises International Co., Ltd. and Michael Lin\'s Motion for Forum Non Conveniens, Demurrer, and Motion to Strike came on regularly for hearing on [Undated], with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR FORUM NON CONVENIENS IS DENIED.

THE DEMURRER IS OVERRULED.

THE MOTION TO STRIKE IS GRANTED IN PART AND DENIED IN PART.

DATE: _______________ _______________________________

JUDGE

'


b'

Case Number: ****7255 Hearing Date: July 16, 2021 Dept: A

Motion to Transfer and Consolidate

Calendar:

13

Case No.:

EC066142

Hearing Date:

June 18, 2021

Action Filed:

December 15, 2016

Trial Date:

Not Set

MP:

Defendant/Cross-Complainant Fang Wang

RP:

Defendant CTC Investment Properties, Inc.

Defendant/Cross-Defendant Shirley Manman Tang

ALLEGATIONS:

The instant action arises from Plaintiff Hua Luo (“Plaintiff”) hiring Defendants CTC Investment Properties, Inc. (“CTC”) and Calvin Gong (“Gong”), to purchase real property for her for investment purposes. Defendants induced Plaintiff to make the purchase of real property (the "Property") which had tenants by making false statements and by concealing information from her about the conditions and legality of the tenancies. Defendant Shirley Manman Tang (“Tang”) was the real estate agent representing the seller, Defendant Fang Wang (“Wang”), in the transaction and allegedly failed to inform Plaintiff that a portion of construction was not permitted such that Plaintiff could not lease out that part of the property. CTC d/b/a Re/Max Advanced Realty (“Re/Max”) and Re/Max were allegedly both Gong and Tang’s principals and employers.

Subsequently, the City of Highland (“Highland”) conducted an inspection of the property and ordered Plaintiff to evict all tenants because the property was illegally occupied and illegally converted.

The second amended complaint (“SAC”), filed July 27, 2017, alleges nine causes of action for: (1) Fraud in the Inducement; (2) Constructive Fraud; (3) Fraud (Concealment); (4) Fraud (Intentional Misrepresentation); (5) Breach of Fiduciary Duty; (6) Breach of Duty to be Honest and Truthful (Civ. Code, ;;1102.7 & 2079); (7) Negligence; (8) Negligent Misrepresentation; and (9) Breach of Contract.

On March 28, 2017, Defendant/Cross-Complainant Wang filed a Cross-Complaint (“XC”), thereafter field a First Amended Cross-Complaint (“FXC”) on June 20, 2019, and filed the operative Second Amended Cross-Complaint (“SXC”) on November 05, 2019, against Tang, Gong, and Re/Max, alleging eight causes of action for: (1) Breach of Fiduciary Duty; (2) Breach of Contract; (3) Negligence; (4) Negligent Misrepresentation; (5) Fraud – Intentional Misrepresentation; (6) Fraud – Concealment; (7) Equitable Indemnity; and (8) Implied Contractual Indemnity. Wang alleges that she purchased property with the help of Tang, in hopes of finding tenants. Wang alleges that Tang advised her that the property was easily rentable, but discovered that the property included issues with water, mold, and other construction damages and that obtaining a tenant was difficult. Wang later decided to sell the property and asked Tang to represent her as the listing agent. Wang alleges that she is only proficient in Mandarin and not English and thus Tang filled out the required disclosures (Transfer Disclosure Form and Seller Property Questionnaire) on Wang’s behalf, but Tang failed to address the deficiencies found on the property. Wang alleges that she was then sued by Plaintiff along with other defendants Tang, Calvin Gong, Re/Max, and CTC.

PRESENTATION:

The Court received the instant motion, filed by Wang, on April 22, 2021; the opposition, filed by CTC and Tang ("CTC Defendants") on June 07, 2021; and the reply, filed by Wang, on June 11, 2021.

On June 18, 2021, the Court continued the instant matter to July 16, 2021 and directed moving party to give notice.

RELIEF REQUESTED:

Wang moves for an order transferring and consolidating Case No. CIVDS1935520 to this Court and the instant action.

ANALYSIS:

Standard of Review – CCP ; 403 provides:

A judge may, on motion, transfer an action or actions from another court to that judge’s court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith effort to obtain agreement to the transfer from all parties to each action. Notice of the motion shall be served on all parties to each action and on each court in which an action is pending. Any party to that action may file papers opposing the motion within the time permitted by rule of the Judicial Council. The court to which a case is transferred may order the cases consolidated for trial pursuant to Section 1048 without any further motion or hearing.

CCP ; 404.1 provides:

Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.

A party filing for a motion to transfer and consolidate an action from another court must first make a good-faith effort to obtain agreement of all parties to the proposed transfer and consolidation. (California Rules of Court, Rule 3.500, subd. (b).) The party must also submit a declaration stating facts showing that (1) the actions are not complex; (2) the moving party has made the good faith effort to obtain agreement from all parties; and (3) the moving party has notified all parties of their obligation to disclose to the court any information they have as to any other transfer motions. (Id. at subd. (c).)

Proof of Service – On review of the Amended Proof of Service filed by Wang, the Court finds that proof of service requirements have been satisfied to code.

Wang\'s RJN – Judicial notice may not be taken of any matter, unless authorized or required by law. (Evid. Code, ; 450.) Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. Applicable here is Evidence Code section 452, subdivision (d), which provides that the Court may notice "[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States."

The Court will take judicial notice of Exhibits 1 through 4. (Decl. Gardner, Exs. 1-4.)

Merits – Wang argues that Case No. CIVDS1935520 should be consolidated with the instant action under this Court, as both actions involve the same common nucleus of operative facts, the same parties, and the same sale of the same Property. Wang also argues that CRC Rule 3.500 requirements have been satisfied, and that this Court was first in time to hear the subject matter under the rule of exclusive concurrent jurisdiction. Specifically, Wang argues that both actions involve a garden variety misrepresentation suit over the conditions of real property, three counsels of record, few witnesses, and minimal documentary evidence.

In opposition, CTC Defendants cite to an unspecified "Section 403" and argue that a court may transfer any civil action to any other district "where it might have been brought". CTC Defendants argue that Case No. CIVDS1935520 has no connection to Burbank, as the Property at issue is located in, the contract at issue was entered into, and the parties are located in, San Bernardino County. CTC Defendants also cite to Fontaine v. Superior Ct. (2009) 175 Cal.App.4th 830, 836 and argue that the Court should give more consideration to the plaintiffs\' choice of forum. CTC Defendants further argue that it is more convenient for witnesses and parties to adjudicate the issue in San Bernardino County, that the action arose in San Bernardino County, and the location is more convenient for counsel and will result in fewer expenses for the parties.

In reply, Wang argues that CTC Defendants\' citation to "Section 403" cites to a federal statute and has no bearing on the instant motion.

As a preliminary matter, in attempting to citing to "Section 403", CTC Defendants instead appear to have cited to 28 U.S.C. ; 1404(a), which provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." [Emphasis added.] This statute is applicable only to district courts, and is thus inapposite. The Court could thus not grant the instant motion on the basis of 28 U.S.C. ; 1404(a).

The Court finds that Wang satisfies CRC Rule 3.500(b) and (c) requirements in submitting a declaration stating facts showing that the actions are not complex, that a good faith effort has been made to obtain agreement from all parties, and that all parties have been notified of their disclosure obligations. (Decl. Gardner, ¶¶ 24(b), 26-29.) Further, on review of Exhibit 3 attached to the Gardner Declaration, the Court finds that the two actions involve a common nucleus of operative facts surrounding the same real property and some of the same parties involved in the instant action. CTC Defendants does not provide a rebuttal to these factors. However, CTC Defendants argue that all relevant issues and parties to Case No. CIVDS1935520 relate to the San Bernardino venue, and do not have any connection to Burbank. Wang does not rebut this factor, but argues that, pursuant to the doctrine of exclusive concurrent jurisdiction, as this Court was the first in time to hear the instant action, this Court WILL assume jurisdiction over the two actions.

The rule of exclusive concurrent jurisdiction provides that “‘when two superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.’” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786-87 (quoting California Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104, 109).)

Although Wang fails to establish that consolidation and coordination would promote the ends of justice as to "the convenience of parties, witnesses, and counsel", Wang does establish that the two actions contain common issues of law and fact, and that consolidation would promote judicial efficiency and lower the likelihood of " duplicative and inconsistent rulings, orders, or judgments". (Code Civ. Proc., ; 404.1.) This Court also has exclusive and continuing jurisdiction over the common subject matter, as the instant action was filed earlier in time than Case No. CIVDS1935520. The Court will thus grant the instant motion.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant/Cross-Complainant Fang Wang\'s Motion to Transfer and Consolidate came on regularly for hearing on July 16, 2021, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS GRANTED. COUNSEL FOR MOVING PARTY IS ORDERED TO: 1) SERVE A CERTIFIED COPY OF THIS ORDER ON THE COURT IN THE COUNTY OF SAN BERNARDINO AND 2) OBTAIN A PAPER OR DIGITAL COPY OF THAT COURT’S FILES PERTAINING TO THE CASE AND FILE THE SAME WITH THE LOS ANGELES SUPERIOR COURT IN HARD COPY OR DIGITALLY IN THE WITHIN MATTER.

DATE: _______________ _______________________________

JUDGE

'


b'

Case Number: ****7255 Hearing Date: July 9, 2021 Dept: A

Motion for Forum Non Conveniens;

Demurrer; MTS

Calendar:

22

Case No.:

****7255

Hearing Date:

July 09, 2021

Action Filed:

September 5, 2017

Trial Date:

Not Set

MP:

Specially Appearing Defendants RC Cruises International Co., Ltd.; Michael Lin

RP:

Plaintiffs Cruise Worldwide, Ltd.; Teresa Lu

ALLEGATIONS:

In this action, Plaintiffs Cruise Worldwide, Ltd. ("CW") and Teresa Lu ("Lu", and together, "Plaintiffs") allege that they are in the business of selling cruise packages by Royal Caribbean and served as Royal Caribbean’s International Representative in Taiwan. Plaintiffs partnered with Defendants Michael Lin ("Lin") and RC Cruises International Co., Ltd. ("RC Cruises" and together, "Defendants"), and in April 2017, Lin asked Plaintiffs for a larger share of Cruise Worldwide’s gross profits, which Lu declined. Plaintiffs allege, thereafter, Lin engaged in a scheme to steal the company, renamed his company “Cruise Worldwide RC” to create confusion in the marketplace and mislead Plaintiffs’ customers, engaged in a smear campaign against Plaintiffs, and caused Royal Caribbean to end its 14-year relationship with Plaintiffs. Plaintiff also allege that Lin defrauded Lu out of a California bank account by promising she would be an authorized signatory to an account for commissions received from Royal Caribbean, but she was not provided access to the account as an authorized signatory.

The Complaint, filed September 5, 2017, alleges causes of action for defamation per se, tortious interference with contractual relations, intentional and negligent interference with prospective economic relations, fraud, conversion, breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, violations of Business and Professions Code sections 17200 et seq., and declaratory relief.

PRESENTATION:

The Court received the motion for forum non conveniens, filed by Defendants, on January 21, 2021; the opposition, filed by Plaintiffs, on June 14, 2021; and the reply, filed by Defendants, on July 01, 2021.

The Court received the demurrer, filed by Defendants, on January 21, 2021; the opposition, filed by Plaintiffs, on June 14, 2021; and the reply, filed by Defendants, on July 01, 2021.

The Court received the motion to strike, filed by Defendants, on January 21, 2021; the opposition, filed by Plaintiffs, on June 14, 2021; and the reply, filed by Defendants, on July 01, 2021.

RELIEF REQUESTED:

Specially Appearing Defendants move to dismiss the action on the grounds of forum non conveniens.

Specially Appearing Defendants demur to the operative Complaint.

Specially Appearing Defendants move to strike the following portions of the operative Complaint:

1. Page 20:24

2. Paragraphs 70, 79, 89, 97, 103, 123; Page 20:23

DISCUSSION:

Forum Non Conveniens

Untimely Motion to Dismiss – There are two issues with the filing date of the instant motion. First, CCP ; 418(b) provides that "[t]he notice shall designate, as the time for making the motion, a date not more than 30 days after filing of the notice." The notice for the instant motion was filed on January 21, 2021 and designated June 25, 2021 as the original hearing date, which is beyond the 30 day deadline. Second, CCP ; 418(a) provides that a motion to dismiss the action on the ground of inconvenient forum must be filed by a defendant on or before the last day of the defendant\'s time to plead, or within any further time that the court may allow for good cause. CCP ; 418(a) applies only to a defendant who has not made a general appearance, and thus is applicable to Specially Appearing Defendants, who have not yet made a general appearance. (See Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460-61.) The last day defendant was required to file a pleading was on December 23, 2020. Defendants have filed a declaration for automatic extension on December 21, 2020, but this declaration covers only demurrers, motions to strike, and judgments on the pleadings, and is inapplicable to a motion to dismiss. The instant motion is thus untimely, and the Court will deny the motion.

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Demurrer

Standard of Review – Demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civ. Proc. ; 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to Code Civ. Proc. ;; 430.10(e) and (f), the party against whom a complaint has been filed demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

Meet and Confer – CCP ; 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. (Code Civ. Proc., ; 430.41.) The demurring party must file and serve a declaration detailing their meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (Code Civ. Proc., ;; 430.41, subd. (a)(4); 435.5 subd. (a)(4).)

On review of the Declaration of David T. Ching, the Court finds that meet and confer requirements have been satisfied to code. (Decl. Ching, ¶ 9, Ex. 1.)

Merits – Specially Appearing Defendants (further referred to as "Defendants") demur on the grounds of forum non conveniens and on the grounds of res judicata and collateral estoppel. The forum non conveniens argument is not a ground upon which the Court may sustain a demurrer, as the only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.) The Court will thus not address this issue.

As to the res judicata and collateral estoppel arguments, res judicata, or claim preclusion, prevents the relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. (Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal. App. 4th 547, 556.) For collateral estoppel, prior judgment operates in a second suit based on a different cause of action as an estoppel as to issues in the second action that were actually litigated and determined in the first action. (People v. Barragan (2004) 32 Cal.4th 236, 252.) Res judicata or collateral estoppel apply if: “(1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding.” (Boekenn v. Philip Morris USA, Inc. (2010) 48 Cal. 4th 788, 797.)

Defendants assert that the basis for res judicata or collateral estoppel is a criminal case initiated by Lu in Taiwan, where the prosecutor chose not to prosecute, and the criminal court made certain findings. Defendants cite to no authority supporting the contention that a Taiwanese, or indeed any, prosecutor\'s decision not to prosecute constitutes a "final judgment on the merits" of a civil case. As Defendants make no further arguments on demurrer, the Court will overrule the demurrer.

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MTS

Standard of Review – Motion to Strike – The proper procedure to attack false allegations in a pleading is a motion to strike. (Code Civ. Proc., ; 436, subd. (a).) In granting a motion to strike made under CCP ; 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., ; 436, subd. (a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (Code Civ. Proc., ; 431.10.) The court may also “[s]trike 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).)

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.) “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299) (internal quotations omitted).

Oppression – First, Civil Code ; 3294(c)(2) defines “oppression” as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”

Fraud – Next, under Civil Code ; 3294(c)(3), “fraud” is defined as “intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Moreover, as noted in Lehto v. Underground Constr. Co. (1977) 69 Cal.App.3d 933, to plead fraud as a basis for punitive damages, the plaintiff must allege “the facts and circumstances which constitute the fraud … clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” (Lehto v. Underground Constr. Co. (1977) 69 Cal.App.3d 933, 944.)

Malice – Finally, under Civil Code ; 3294(c)(1), “malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted).)

Meet and Confer – CCP ; 435.5(a) provides that before filing a motion to strike, 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 if an agreement can be reached that resolves the objections to be raised in the motion to strike.

On review of the Declaration of David T. Ching, the Court finds that meet and confer requirements have been satisfied to code. (Decl. Ching, ¶ 4, Ex. 1.)

Merits – Defendants argue that the portions of the Complaint requesting attorney\'s fees should be stricken because there are no statutory grounds or contract terms that specify Plaintiff\'s entitlement to such fees. Defendants also argue that Plaintiffs cannot claim punitive damages for a fraud claim or a conversion claim arising out of a contract, and that the Complaint does not sufficiently allege reckless, malicious, oppressive, or fraudulent conduct as to the claims for defamation, tortious interference with contractual relations, or intentional and negligent interference with prospective economic relations.

In opposition, Plaintiffs argue that the Court should "leave open the possibility" for Plaintiffs to recover attorney fees as a penalty due to Defendants\' having purportedly lied in their discovery responses. As to punitive damages, Plaintiffs assert that the defamation allegations are sufficiently supported by various allegations of defamatory quotes (Complaint, ¶¶ 9, 38, 46), and that fraud and conversion claims sufficiently allege intentionally tortious conduct (Complaint, ¶¶ 100). Finally, Plaintiffs argue that the Complaint generally sufficiently pleads factual allegations to support allegations of oppression, malice, and fraud.

As to the prayer for attorney fees, the Court finds that Plaintiffs fail to refute Defendants\' argument that Plaintiffs allege no grounds entitling them to such a recovery. Plaintiffs cite to no authority allowing them to include a prayer for attorney fees for the purposes of securing a future penalty against Defendants. The Court further finds that Plaintiffs implicitly concede the argument by arguing only that the Court should "leave open the possibility" for recovery of attorney fees, rather than providing any substantive arguments. The Court will thus grant the instant motion as to the attorneys\' fees and costs prayers in the Complaint.

As to the punitive damage allegations, the Court finds that the Complaint makes sufficient factual allegations to support prayers for punitive damages as to the claims for defamation, tortious interference with contractual relations, intentional and negligent interference with prospective economic relations, and breach of fiduciary duty. The Complaint alleges that Lin changed his company\'s name to a name similar to CW (Complaint, ¶ 35), published and spread defamatory statements about Lu (Complaint, ¶¶ 36, 44-45), and made false statements to CW\'s client, Royal Caribbean, in order to interfere with Lu\'s business relationships and steal Plaintiffs\' goodwill and clientele (Complaint, ¶¶ 38-41). These allegations are enough to support the Complaint\'s allegations of malice and oppression, and thus, punitive damages, on a motion to strike. The Court further finds that the fraud and conversion claims relate to, but do not arise from, a breach of contract claim, as, contrary to Defendants\' argument, the Complaint does not allege that the agreement between the parties required that Lu be an authorized signatory. The underlying allegation for both fraud and conversion claims is that Lin represented to Lin that she would be an authorized signatory for an account for the purpose of converting the funds in the account. (Complaint, ¶¶ 91-100.) The Court will not read in an implication that such a requirement was present in the agreement between the parties.

Accordingly, the Court will grant the motion to strike as to the attorney fee prayers and deny the motion to strike as to the punitive damage prayers.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Specially Appearing Defendants RC Cruises International Co., Ltd. and Michael Lin\'s Motion for Forum Non Conveniens, Demurrer, and Motion to Strike came on regularly for hearing on July 09, 2021, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR FORUM NON CONVENIENS IS DENIED.

THE DEMURRER IS OVERRULED.

THE MOTION TO STRIKE IS GRANTED IN PART AND DENIED IN PART AS SPCIFIED ABOVE.

DATE: _______________ _______________________________

JUDGE

'


Case Number: ****7255    Hearing Date: May 21, 2021    Dept: A

Motion to Compel Further Responses to SI

Calendar:

10

Case No.:

****7255

Hearing Date:

May 21, 2021

Action Filed:

September 5, 2017

Trial Date:

Not Set

MP:

Plaintiffs Cruise Worldwide, Ltd.; Teresa Lu

RP:

Specially Appearing Defendants RC Cruises International Co., Ltd.; Michael Lin

ALLEGATIONS:

In this action, Plaintiffs Cruise Worldwide, Ltd. and Teresa Lu (together, "Plaintiffs") allege that they are in the business of selling cruise packages by Royal Caribbean and served as Royal Caribbean’s International Representative in Taiwan. Plaintiffs partnered with Defendants Michael Lin ("Lin") and RC Cruises International Co., Ltd. ("RC Cruises" and together, "Defendants"), and in April 2017, Lin asked Plaintiffs for a larger share of Cruise Worldwide’s gross profits, which Lu declined. Plaintiffs allege, thereafter, Lin engaged in a scheme to steal the company, renamed his company “Cruise Worldwide RC” to create confusion in the marketplace and mislead Plaintiffs’ customers, engaged in a smear campaign against Plaintiffs, and caused Royal Caribbean to end its 14-year relationship with Plaintiffs. Plaintiff also allege that Lin defrauded Lu out of a California bank account by promising she would be an authorized signatory to an account for commissions received from Royal Caribbean, but she was not provided access to the account as an authorized signatory.

The Complaint, filed September 5, 2017, alleges causes of action for defamation per se, tortious interference with contractual relations, intentional and negligent interference with prospective economic relations, fraud, conversion, breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, violations of Business and Professions Code sections 17200 et seq., and declaratory relief.

PRESENTATION:

The Court received the instant motion filed by Plaintiffs on April 28, 2021; the opposition filed by Defendants on May 10, 2021; and the reply filed by Plaintiffs on May 14, 2021.

RELIEF REQUESTED:

Plaintiffs move for an order compelling further response to Special Interrogatory No. 7, served upon RC Cruises, and Special Interrogatory Nos. 9 and 10, served upon Lin.

DISCUSSION:

 

Standard of Review – CCP ; 2030.300 provides for a party to bring a motion to compel further responses to interrogatories where the responding party provides inadequate, incomplete, or evasive responses, or the objections are too general or without merit. The propounding party must submit a declaration under CCP ; 2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve each issue raised by the motion. (Code Civ. Proc., ; 2030.300, subd. (b).) The motions must be brought within 45 days of service of the responses or supplemental responses. (Code Civ. Proc., ; 2030.300, subd. (c).)

Meet and Confer – On review of the Declaration of David Bosko, the Court finds that meet and confer requirements have been satisfied to code. (Decl. Bosko, ¶¶ 8-14.)

Merits – Special Interrogatory No. 7 (RC Cruises) – Special Interrogatory No. 7 states: “IDENTIFY YOUR gross revenues from January 1, 2003 to the present.”

Defendants object on the basis of vagueness, ambiguity, overbroadness, unlimited temporal range, harassing, premature, assuming facts not in evidence without foundation, legal conclusion, burdensomeness, oppressiveness. Defendants assert the attorney-client privilege, attorney work product doctrine, privacy protections, and tax privilege. Defendants argue that the interrogatory improperly constitutes premature punitive damages discovery.

In reply, Plaintiffs argue that they properly seek information regarding RC Cruises’ gross revenue for Plaintiffs’ general and compensatory damages, as the Complaint alleges that RC Cruises changed its name in May of 2017 to trade on Plaintiffs’ goodwill and so earned profits to which Plaintiffs are entitled. (Complaint, ¶¶ 7, 10.)

No pretrial discovery by plaintiff is permitted without a court finding that there is “substantial probability” that the plaintiff will prevail on his or her claim for punitive damages. (Civ. Code, ; 3295, subd. (c).) But a plaintiff may seek discovery relating to damages, generally. The Court finds that the information sought from Special Interrogatory No. 7 is appropriately related to damages sought by Plaintiff. The Court will overrule each objection proffered by Defendants.

Special Interrogatory Nos. 9, 10 (Lin) – Special Interrogatory No. 9 states: “IDENTIFY all real property in which YOU have had an ownership interest from January 1, 2016 to the present.”

Special Interrogatory No. 10 states: “IDENTIFY all businesses in which YOU have had an ownership interest from January 1, 2016 to the present.”

Defendants object on the basis of vagueness, ambiguity, overbroadness, unlimited temporal range, harassing, premature, assuming facts not in evidence without foundation, legal conclusion, burdensomeness, oppressiveness. Defendants assert the attorney-client privilege, attorney work product doctrine, privacy protections, and tax privilege. Defendants argue that the interrogatory improperly constitutes premature punitive damages discovery.

In reply, Plaintiffs argue that the information sought relates to Defendants’ demurrer and motion to dismiss for forum non conveniens, both on calendar. Plaintiffs assert that the information is sought to establish that Lin lives or has lived in California, and that Lin works or has worked in California, which is relevant to the forum non conveniens motion. Plaintiffs cite to Lin’s United States passport (Decl. Lu, ¶ 2; Ex. 1), and California Driver’s License, issued in 2016 (Decl. Bosko, ¶ 15; Ex. 11) and contrast this to Lin’s denial of California residency within the past five years (Decl. Bosko, ¶ 16; Ex. 12). Plaintiffs also argue that such information may be used to impeach Lin’s credibility.

The Court finds that Special Interrogatory Nos. 9 and 10 properly relate to both the upcoming demurrer and motion to dismiss for forum non conveniens and therefore reasonably related to the action. .

Accordingly, the Court will grant the instant motion in its entirety.

Sanctions – Sanctions are mandatory against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or the circumstances make imposition of sanctions unjust. (Code Civ. Proc., ; 2030.300, subd. (d).) As Plaintiffs do not request sanctions, the Court will not award same.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiffs Cruise Worldwide, Ltd. and Teresa Lu’s Motion to Compel Further Responses to Special Interrogatories came on regularly for hearing on May 21, 2021, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES IS GRANTED.

DATE: _______________ _______________________________

JUDGE



Case Number: ****7255    Hearing Date: October 09, 2020    Dept: A

The Superior Court is open under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use remote appearance technology LACourtConnect

If it is indispensable for counsel to be present in court, face masks are mandated (unless a court orders otherwise) and social distancing rules are in force.

Dept. A Burbank protocol for LACourtConnect Appearances.

Video Appearances: Since these are the functional equivalent of a personal appearance in court, no special protocols are in place at this time.

Audio Only Appearances.

  1. Argument is limited to three minutes, unless the court grants a request for additional time.

  2. The reading of argument is feckless and nugatory.

  3. State your name at the beginning of all statements.

  4. Do not speak directly to other counsel without permission of court.

  5. Do not interrupt or attempt to speak over another speaker.

  6. Do not announce your presence until called by your name or case name.

  7. Take a deep breath frequently so that the court may interrupt your presentation, if necessary. (The system does not default to the court unless you are placed on mute by the court or go silent or mute on you own.)

  8. Maintain silence in your surroundings – no keyboarding, dogs barking, children crying, etc.

Cruise Worldwide v Lin

Motion to Quash

Calendar:

18

Case No.:

****7255

Hearing Date:

October 09, 2020

Action Filed:

September 5, 2017

Trial Date:

Not Set

MP:

Specially Appearing Defendants RC Cruises International Co., Ltd.; Michael Lin

RP:

Plaintiffs Cruise Worldwide, Ltd.; Teresa Lu

ALLEGATIONS:

In this action, Plaintiffs Cruise Worldwide, Ltd. and Teresa Lu (together, "Plaintiffs") allege that they are in the business of selling cruise packages by Royal Caribbean and served as Royal Caribbean’s International Representative in Taiwan. Plaintiffs partnered with Defendants Michael Lin ("Lin") and RC Cruises International Co., Ltd. ("RC Cruises" and together, "Defendants"), and in April 2017, Lin asked Plaintiffs for a larger share of Cruise Worldwide’s gross profits, which Lu declined. Plaintiffs allege, thereafter, Lin engaged in a scheme to steal the company, renamed his company “Cruise Worldwide RC” to create confusion in the marketplace and mislead Plaintiffs’ customers, engaged in a smear campaign against Plaintiffs, and caused Royal Caribbean to end its 14-year relationship with Plaintiffs. Plaintiff also allege that Lin defrauded Lu out of a California bank account by promising she would be an authorized signatory to an account for commissions received from Royal Caribbean, but she was not provided access to the account as an authorized signatory.

The Complaint, filed September 5, 2017, alleges causes of action for defamation per se, tortious interference with contractual relations, intentional and negligent interference with prospective economic relations, fraud, conversion, breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, violations of Business and Professions Code sections 17200 et seq., and declaratory relief.

PRESENTATION:

On October 04, 2019, the Court granted Plaintiffs' motion for leave to serve Defendants pursuant to CCP ; 413.10 by: (1) email to the address listed on Michael Lin’s business card; (2) service on defense attorney in this matter; and (3) mail to Defendants’ last 4 known addresses listed on Lin’s Taiwanese ID card, California driver’s license, and residence, and RC Cruises’ formation papers.

Defendants filed the motion to quash on May 12, 2020, Plaintiffs filed an opposition on September 04, 2020, and Defendants filed a reply on September 11, 2020.

On September 14, 2020, the Court continued the instant motion to October 09, 2020 and directed Plaintiff to give notice.

RELIEF REQUESTED:

Defendants move to quash service of the summons and complaint on the grounds that service was not made accordingly to any statutorily authorized methods.

DISCUSSION:

 

Standard of Review – Without valid service of a summons, the court never acquires jurisdiction over a defendant. Hence, the statutory ground for the motion to quash is that the court lacks jurisdiction over the defendant. (Code Civ. Proc., ; 418.10, subd. (a)(1).) Code of Civ. Proc. ;418.10 authorizes a motion to quash service of summons within the time allowed for filing a response to the complaint. If the motion is timely made, “no act” by the party making such motion, “including filing an answer, demurrer or motion to strike,” shall be deemed a general appearance. Code of Civ. Proc. ;418.10(e)(1).

CCP ; 413.10(c) provides that a summons shall be served on a person “[o]utside the United States, as provided in this chapter or as directed by the court in which the action is pending, or, if the court before or after service finds that the service is reasonably calculated to give actual notice, as prescribed by the law of the place where the person is served or as directed by the foreign authority in response to a letter rogatory. These rules are subject to the provisions of the Convention on the ‘Service Abroad of Judicial and Extrajudicial Documents’ in Civil or Commercial Matters (Hague Service Convention).” Under subsection (c), defendants living in another country may be served with summons may be served by any other method permitted under the law of the country where the service was made, provided the California court determines (before or after the service was made) that the method used was “reasonably calculated to give actual notice.” (Code Civ. Proc., ; 413.10, subd. (c); see also Rutter Guide, Cal. Prac. Guide Civ. Pro. Before Trial (June 2018 Update) Ch. 4-D, ;4:315 [stating subsection (c) does not mean much since few foreign countries have more liberal methods of service than California].)

“The adequacy of service ‘so far as due process is concerned is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard. If it is, the traditional notions of fair play and substantial justice (citation) implicit in due process are satisfied.’” (Shoei Kako Co. v. Superior Court (1973) 33 Cal. App. 3d 808, 818.)

Merits – Defendants make a special appearance to move to quash service.

On December 20, 2019, the Court granted Plaintiffs leave to serve Defendants by (1) service on Defendants' counsel, Paul Cheng; (2) email to the address listed on Lin's business card; and (3) by regular mail to the address listed on Lin's Taiwanese ID card and the address listed on RC Cruises' formation papers.

Defendants contend that (1) the Court's December 20, 2019 order granting Plaintiffs leave to serve RC Cruises pursuant to CCP 413.10 is improper because CCP 413.10 allows service only on persons and not corporations, and RC Cruises is a corporation; (2) Plaintiffs may not serve RC Cruises via substituted service pursuant to CCP 416.10; (3) Lin is not the agent for service of process for RC Cruises; (4) the Court's October 04, 2019 order fails to comply with Taiwanese Law; (5) the Court should have issued a letter rogatory to the Taiwanese Court for guidance on service due to the existence of conflicting declarations as to how service should be performed; (6) service on Paul Cheng, Defendants' attorney, is invalid because Defendants restricted Mr. Cheng's authority to receive service; (7) and the methods of service in the Court's October 04, 2019 order are not reasonably calculated to give actual notice.

On review of the moving papers, the Court finds that Defendants do not contend that Plaintiffs have failed to serve them pursuant to the Court's December 20, 2019 order, but argue only that Plaintiffs have improperly served them despite adhering to the Court's order, and that the Court's order fails to comply with Taiwanese law. As the Court has previously adjudicated the merits of Defendants' arguments on the matter and granted Plaintiffs leave to serve Defendants in this manner, the Court will deny the instant motion.

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RULING: below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Specially Appearing Defendants Michael Lin and RC Cruises International Co., Ltd.'s Motion to Quash came on regularly for hearing on October 09, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO QUASH IS DENIED.

DATE: _______________ _______________________________

JUDGE



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