FRANCIS HUNG VS. PAOSHENG CHEN

Tentative Rulings

Case Number: ****7028 Hearing Date: August 16, 2022 Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

FRANCIS HUNG ; Plaintiff, vs. PAOSHENG CHEN , et al., Defendants.	Case No.:	****7028
Hearing Date:	August 16, 2022
Time:	9:00 a.m.
[TENTATIVE] ORDER RE: DEFENDANT PAO-SHENG CHEN’S MOTION FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, FOR SUMMARY ADJUDICATION AGAINST PLAINTIFF FRANCIS HUNG

MOVING PARTY: Defendant Pao-Sheng Chen

RESPONDING PARTY: Plaintiff Francis Hung

Defendant Pao-Sheng Chen’s Motion for Summary Judgment or, Alternatively, for Summary Adjudication against Plaintiff Francis Hung

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

BACKGROUND

Plaintiff Francis Hung filed this action against Defendant Pao-Sheng Chen on July 21, 2017. The operative Third Amended Complaint (“TAC”) was filed on June 28, 2021, and asserts causes of action for (1) intentional infliction of emotional distress, (2) money paid out and expended, (3) fraud – misrepresentation, and (4) elder abuse. The TAC does not allege a cause of action for breach of contract.

Chen now moves for summary judgment or, in the alternative, summary adjudication of each cause of action.

EVIDENCE

The court grants Chen’s request for judicial notice as to Exhibits D, E, and F.

The court rules on Chen’s evidentiary objections to the Declaration of Francis Hung as follows:

Objection 1: overruled

Objection 2: overruled

Objection 3: overruled

Objection 4: overruled

Objection 5: overruled

Objection 6: overruled

Objection 7: sustained

Objection 8: overruled

The court rules on Chen’s evidentiary objections to the Declaration of Monica Hung as follows:

Objection 1: overruled

Objection 2: overruled

Objection 3: sustained as to Exhibit A, overruled as to the remainder

Objection 4: overruled

Objection 5: overruled

Objection 6: sustained

Objection 7: sustained

Objection 8: overruled

LEGAL STANDARD

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ( Code Civ. Proc., 437c ","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Code Civ. Proc., 437c, subd. (c)","original_string":"Code Civ. Proc., 437c, subd. (c)","error":null,"fullText":"Code Civ. Proc., 437c, subd. (c)","refers_to_cite":null,"shortText":"Code Civ. Proc., 437c","isParallel":false,"parallel":"","legistlativeHistory":null,"isLegislativeHistory":false,"start":2817,"end":2851,"pattern":"","readOrderIndex":2817,"index":212,"citeType":1,"CiteShepSignal":0,"CiteShepSignalLink":null,"story":"wdMainTextStory","PinPage":"","name":"CITRUS_BOOKMARK1","foundBy":null,"FullTextParen":null,"ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$id":"1","End":834,"Offset":2605,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$id":"2","Name":"CITRUS_BOOKMARK1","Range":{"$id":"3","ts":{"$ref":"1"},"_Start":212,"_End":246,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) "},"foundBy":null,"pattern":null,"tabName":null},{"$id":"4","Name":"CITRUS_BOOKMARK3","Range":{"$id":"5","ts":{"$ref":"1"},"_Start":387,"_End":447,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) "},"foundBy":"PsychCase","pattern":"Full.CaseCitation","tabName":"39 Cal. 3d 311"},{"$id":"6","Name":"CITRUS_BOOKMARK4","Range":{"$id":"7","ts":{"$ref":"1"},"_Start":774,"_End":831,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) "},"foundBy":"PsychCase","pattern":"Full.CaseCitation","tabName":"53 Cal. 4th 861"},{"$id":"8","Name":"Psych_Cite_60","Range":{"$id":"9","ts":{"$id":"10","End":8522,"Offset":2605,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$ref":"2"},{"$ref":"4"},{"$ref":"6"},{"$ref":"8"}],"Range":{"$id":"11","ts":{"$ref":"10"},"_Start":0,"_End":8522,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., 437c, subd. (p)(2).) DISCUSSION Allegations of the FAC On or about April 14, 2018, Plaintiff underwent cosmetic surgery at Defendants’ Pasadena location. (FAC, 6.) The procedure was a Brazilian Butt Lift (“BBL”) and was performed by Dr. Azad. (FAC, 6.) During the procedure, Dr. Azad performed liposuction on Plaintiff’s arms, flanks, back, abdomen, and inner thighs, and then transferred the fat into Plaintiff’s buttocks. (FAC, 7.) Post-surgery, Defendants’ medical staff applied a medium-sized full bodysuit garment onto Plaintiff and sent her home. (FAC, 8.) Two days later, on April 16, 2018, Plaintiff returned for her first post-operation appointment and discovered two fluid-filled blisters on her right and left flank. (FAC, 9.) Plaintiff was taken out of the medium-sized garment and placed into a larger garment. (FAC, 9.) Plaintiff was left with severe scarring of her midsection, especially on her left flank; hard, raised areas; skin darkening; uneven rippling in her abdomen; and little to no sensitivity in her midsection. (FAC, 10.) Subsequently, over the course of five months, Plaintiff began receiving non-invasive radiofrequency treatment by Defendants’ medical staff to help reinforce the problem areas and assist in the appearance of scars and skin darkening. (FAC, 11.) Plaintiff also began receiving Triamcinolone (“Kenolog”) injections directly into the scarred areas. (FAC, 11.) On or about September 15, 2018, when Plaintiff received her medical records from Defendants, she discovered that the original improperly fitted garment contributed to her blisters and eventual disfigurement. (FAC, 13.) Plaintiff received a second medical opinion on January 10, 2019, wherein she was informed that her surgery and aftercare were substandard and that the radiofrequency and Kenolog treatments could not have repaired the damage. (FAC, 14.) As a result of her disfigurement, Plaintiff began to suffer Body Dysmorphic Disorder and was later diagnosed as suffering from bipolar disorder. (FAC, 17-18.) First Cause of Action: Medical Negligence Defendants contend that the first cause of action is without merit because Plaintiff cannot establish the elements of breach or causation. “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) “The standard of care in a medical malpractice case requires that medical service providers exercise that…degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action….” (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1, quoting Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.) Therefore, in medical malpractice cases, “expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care….” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) Plaintiff’s theory of liability is that her injuries were caused by the removal of too much fat and/or by being placed in the wrong sized garment after her surgery by the medical staff. (Defendants’ Undisputed Material Fact (“UMF”) 2.) In support of their motions, Defendants offer the expert declaration of Terry Dubrow, MD. Dr. Dubrow is board certified in Plastic Surgery by the American Board of Plastic Surgery and has been in private practice as a plastic surgeon since 1995. (Harwood Decl., 4, Ex. A, 2 (hereinafter “Dubrow Decl.”).) Based on Dr. Dubrow’s education, training, and experience, he is familiar with the standard of care for cosmetic surgeons, cosmetic surgical facilities and their staff practicing within the communities in California. (Dubrow Decl., 4.) Dr. Dubrow’s opinions are informed by his detailed review of the operative complaint, the patient chart and treatment records for Plaintiff, and photographs produced by Plaintiff in response to Defendants’ discovery requests. (Dubrow Decl., 5.) It is Dr. Dubrow’s expert opinion that Dr. Azad and the other Defendants met the standard of care in the community with regard to the care and treatment they provided to Plaintiff. (UMF 33.) With respect to the amount of fat removed from Plaintiff’s body, Dr. Dubrow’s opinion is that Dr. Azad’s treatment plan (lipodystrophy of the full abdomen, mons pubis, bilateral inner thighs, bilateral flanks, bilateral hips, bilateral later back, bilateral posterior aspect of the arms, and sacrum) and his execution of the plan (performance of the SAFE liposuction technique using a MicroAire for removal of fat) was within the standard of care. (Dubrow Decl., 38(a), (d).) With respect to Plaintiff’s post-operative care and treatment, Dr. Dubrow’s opinion is that given her approximate size, it was within the standard of care to place her in medium sized garments. (Dubrow Decl., 38(e).) Moreover, it is Dr. Dubrow’s expert opinion that no negligent act or omission by Defendants caused or significantly contributed to Plaintiff’s injuries because (1) development of bilateral flank wounds is a known complication of liposuction that can occur in the absence of negligence, and (2) the garments in which Plaintiff was placed were appropriate. (Dubrow Decl., 39.) In opposition, Plaintiff offers the expert declaration of Juris Bunkis, MD FACS. Dr. Bunkis is a double-board certified plastic surgeon and has been in private practice specializing in aesthetic surgery since 1984. (Theodosiadis Decl., 3, Ex. 1, 1 (hereinafter “Bunkis Decl.”).) In forming his opinions, Dr. Bunkis relied on the same documents as Dr. Dubrow, as well as a comprehensive physical examination of Plaintiff on January 10, 2019. (Bunkis Decl., 5.) Dr. Bunkis opines that Plaintiff has “scar against muscle” and that “the skin and fat died.” (Bunkis Decl., 39.) Dr. Bunkis states that he “cannot tell in retrospect” if “the skin and fat died” because too much fat was removed or because of the excessively tight dressing. (Bunkis Decl., 39.) However, Dr. Bunkis opines that either way, “this was medical negligence.” (Bunkis Decl., 39.) According to Dr. Bunkis, Plaintiff was placed in a compression garment that was too tight, which was a breach of the duty to place Plaintiff in a proper-sized compression garment and which was a substantial factor in causing Plaintiff’s injuries. (Bunkis Decl., 40.) Dr. Bunkis then concludes that “[t]o a reasonable degree of medical probability, Dr. Azad and other defendants by acts and omissions committed Medical Negligence….” and that Plaintiff’s procedure and aftercare “were not within the community standard of care.” (Bunkis Decl., 42-43.) Defendants object to Dr. Bunkis’s declaration, and in particular, his conclusions, as conclusory. Defendants argue that Dr. Bunkis has offered no explanation or factual support for his conclusions that Defendants deviated from the standard of care or that those deviations are what caused Plaintiff’s injuries. The court agrees. "}},"_Start":608,"_End":613,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., 437c, subd. (p)(2).) DISCUSSION Allegations of the FAC On or about April 14, 2018, Plaintiff underwent cosmetic surgery at Defendants’ Pasadena location. (FAC, 6.) The procedure was a Brazilian Butt Lift (“BBL”) and was performed by Dr. Azad. (FAC, 6.) During the procedure, Dr. Azad performed liposuction on Plaintiff’s arms, flanks, back, abdomen, and inner thighs, and then transferred the fat into Plaintiff’s buttocks. (FAC, 7.) Post-surgery, Defendants’ medical staff applied a medium-sized full bodysuit garment onto Plaintiff and sent her home. (FAC, 8.) Two days later, on April 16, 2018, Plaintiff returned for her first post-operation appointment and discovered two fluid-filled blisters on her right and left flank. (FAC, 9.) Plaintiff was taken out of the medium-sized garment and placed into a larger garment. (FAC, 9.) Plaintiff was left with severe scarring of her midsection, especially on her left flank; hard, raised areas; skin darkening; uneven rippling in her abdomen; and little to no sensitivity in her midsection. (FAC, 10.) Subsequently, over the course of five months, Plaintiff began receiving non-invasive radiofrequency treatment by Defendants’ medical staff to help reinforce the problem areas and assist in the appearance of scars and skin darkening. (FAC, 11.) Plaintiff also began receiving Triamcinolone (“Kenolog”) injections directly into the scarred areas. (FAC, 11.) On or about September 15, 2018, when Plaintiff received her medical records from Defendants, she discovered that the original improperly fitted garment contributed to her blisters and eventual disfigurement. (FAC, 13.) Plaintiff received a second medical opinion on January 10, 2019, wherein she was informed that her surgery and aftercare were substandard and that the radiofrequency and Kenolog treatments could not have repaired the damage. (FAC, 14.) As a result of her disfigurement, Plaintiff began to suffer Body Dysmorphic Disorder and was later diagnosed as suffering from bipolar disorder. (FAC, 17-18.) First Cause of Action: Medical Negligence Defendants contend that the first cause of action is without merit because Plaintiff cannot establish the elements of breach or causation. “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) “The standard of care in a medical malpractice case requires that medical service providers exercise that…degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action….” (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1, quoting Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.) Therefore, in medical malpractice cases, “expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care….” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) Plaintiff’s theory of liability is that her injuries were caused by the removal of too much fat and/or by being placed in the wrong sized garment after her surgery by the medical staff. (Defendants’ Undisputed Material Fact (“UMF”) 2.) In support of their motions, Defendants offer the expert declaration of Terry Dubrow, MD. Dr. Dubrow is board certified in Plastic Surgery by the American Board of Plastic Surgery and has been in private practice as a plastic surgeon since 1995. (Harwood Decl., 4, Ex. A, 2 (hereinafter “Dubrow Decl.”).) Based on Dr. Dubrow’s education, training, and experience, he is familiar with the standard of care for cosmetic surgeons, cosmetic surgical facilities and their staff practicing within the communities in California. (Dubrow Decl., 4.) Dr. Dubrow’s opinions are informed by his detailed review of the operative complaint, the patient chart and treatment records for Plaintiff, and photographs produced by Plaintiff in response to Defendants’ discovery requests. (Dubrow Decl., 5.) It is Dr. Dubrow’s expert opinion that Dr. Azad and the other Defendants met the standard of care in the community with regard to the care and treatment they provided to Plaintiff. (UMF 33.) With respect to the amount of fat removed from Plaintiff’s body, Dr. Dubrow’s opinion is that Dr. Azad’s treatment plan (lipodystrophy of the full abdomen, mons pubis, bilateral inner thighs, bilateral flanks, bilateral hips, bilateral later back, bilateral posterior aspect of the arms, and sacrum) and his execution of the plan (performance of the SAFE liposuction technique using a MicroAire for removal of fat) was within the standard of care. (Dubrow Decl., 38(a), (d).) With respect to Plaintiff’s post-operative care and treatment, Dr. Dubrow’s opinion is that given her approximate size, it was within the standard of care to place her in medium sized garments. (Dubrow Decl., 38(e).) Moreover, it is Dr. Dubrow’s expert opinion that no negligent act or omission by Defendants caused or significantly contributed to Plaintiff’s injuries because (1) development of bilateral flank wounds is a known complication of liposuction that can occur in the absence of negligence, and (2) the garments in which Plaintiff was placed were appropriate. (Dubrow Decl., 39.) In opposition, Plaintiff offers the expert declaration of Juris Bunkis, MD FACS. Dr. Bunkis is a double-board certified plastic surgeon and has been in private practice specializing in aesthetic surgery since 1984. (Theodosiadis Decl., 3, Ex. 1, 1 (hereinafter “Bunkis Decl.”).) In forming his opinions, Dr. Bunkis relied on the same documents as Dr. Dubrow, as well as a comprehensive physical examination of Plaintiff on January 10, 2019. (Bunkis Decl., 5.) Dr. Bunkis opines that Plaintiff has “scar against muscle” and that “the skin and fat died.” (Bunkis Decl., 39.) Dr. Bunkis states that he “cannot tell in retrospect” if “the skin and fat died” because too much fat was removed or because of the excessively tight dressing. (Bunkis Decl., 39.) However, Dr. Bunkis opines that either way, “this was medical negligence.” (Bunkis Decl., 39.) According to Dr. Bunkis, Plaintiff was placed in a compression garment that was too tight, which was a breach of the duty to place Plaintiff in a proper-sized compression garment and which was a substantial factor in causing Plaintiff’s injuries. (Bunkis Decl., 40.) Dr. Bunkis then concludes that “[t]o a reasonable degree of medical probability, Dr. Azad and other defendants by acts and omissions committed Medical Negligence….” and that Plaintiff’s procedure and aftercare “were not within the community standard of care.” (Bunkis Decl., 42-43.) Defendants object to Dr. Bunkis’s declaration, and in particular, his conclusions, as conclusory. Defendants argue that Dr. Bunkis has offered no explanation or factual support for his conclusions that Defendants deviated from the standard of care or that those deviations are what caused Plaintiff’s injuries. The court agrees. "},"foundBy":null,"pattern":null,"tabName":null}],"Range":{"$id":"12","ts":{"$ref":"1"},"_Start":0,"_End":834,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) 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(2001) 25 Cal.4th 826, 850","CitationRichText":"Aguilar v. Atlantic Richfield Co. 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Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850","ShortText":"39 Cal. 3d 311","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":null},"CQ":"","TOA":"","html":" "}" id="-1219663847">Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ( PsychId Id Id. at p. 403 ","ParentCiteID":"CITRUS_BOOKMARK3","Processed":true,"Citation":{"current_string":"Ibid.","original_string":"Ibid.","error":null,"fullText":"Ibid.","refers_to_cite":null,"shortText":"Id. at p. 403","isParallel":false,"parallel":null,"legistlativeHistory":null,"isLegislativeHistory":false,"start":3213,"end":3218,"pattern":"Id","readOrderIndex":3212,"index":3213,"citeType":1,"CiteShepSignal":0,"CiteShepSignalLink":null,"story":"wdMainTextStory","PinPage":"","name":"CITRUS_BOOKMARK60","foundBy":"PsychId","FullTextParen":"Ibid.","ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$ref":"10"},"master":" RESULTS_2","kernel_data":"Ibid.Ibid.Ibid. Id.CaseUIdciteCaseNameXYZZY v. KamalaCaseName.FirstPartyBlankCaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyBlankCaseName.SecondPartyKirwanCaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyKirwanCaseName.vv.CourtParenthetical (1985) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date1985 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year1985CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year1985CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyBlank HAS_AUTHORITATIVE_DATAYESIdIbid.Id._PatternIbidGraph.IbidGraphId.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaId.IdIbid.master_name RESULTS_2NY L Paren(NY R Paren)Reporter39 Cal.3d 311, 318Reporter.[[Reporter.]]Reporter. PinPages318Reporter. PinPages._PatternPinPages.PinPagesReporter. PinPages.First318Reporter. PinPages.First. PageNumber318Reporter. PinPages.First._PatternFirstPageInRange.FirstPageInRangeReporter._PatternReporter.ReporterReporter.FirstPage311Reporter.NameCal. 3dReporter.pagepageReporter.Reporter.pagepageReporter.RequiredComma, Reporter.RequiredComma._PatternRequiredComma.RequiredCommaReporter.RequiredComma.Comma,Reporter.Volume39RequiredComma, RequiredComma._PatternRequiredComma.RequiredCommaSecondPartyKirwan suprasupra, supra.,, supra._PatternShortCaseSupra.ShortCaseSuprasupra.suprasupra"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Ibid.","CitationRichText":"Ibid.","IconShepardSignal":{"Id":-1,"Title":"No Analysis","IconType":0,"ImagePath":"/Content/Images/blank.jpg","Description":null},"ShepardSignalLink":null,"ShowShepardSignal":false,"ShowParentLink":true,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Ibid.","ShortText":"Id. at p. 403","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Ibid.","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":null},"CQ":"","TOA":"","html":" "}" id="-222524707">Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ( PsychCase Full.CaseCitation 53 Cal. 4th 861 ","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","original_string":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","error":null,"fullText":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","refers_to_cite":null,"shortText":"53 Cal. 4th 861","isParallel":false,"parallel":"","legistlativeHistory":null,"isLegislativeHistory":false,"start":3379,"end":3436,"pattern":"Full.CaseCitation","readOrderIndex":3379,"index":774,"citeType":1,"CiteShepSignal":2,"CiteShepSignalLink":"https: advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:554Y-9V21-J9X6-H4RV-00000-00","story":"wdMainTextStory","PinPage":"872","name":"CITRUS_BOOKMARK4","foundBy":"PsychCase","FullTextParen":null,"ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$ref":"1"},"master":" RESULTS_3","kernel_data":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389Full.CaseCitationciteCaseNameXYZZY v. KamalaCaseName.FirstPartyC.A.CaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyC.A.CaseName.SecondPartyWilliam S. Hart Union High School Dist.CaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyWilliam S. Hart Union High School Dist.CaseName.vv.CourtParenthetical (2012) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date2012 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year2012CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year2012CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyC.A. HAS_AUTHORITATIVE_DATAYESNY L Paren(NY R Paren)Reporter53 Cal.4th 861, 872Reporter.[[Reporter.]]Reporter. PinPages872Reporter. PinPages._PatternPinPages.PinPagesReporter. PinPages.First872Reporter. PinPages.First. PageNumber872Reporter. PinPages.First._PatternFirstPageInRange.FirstPageInRangeReporter._PatternReporter.ReporterReporter.FirstPage861Reporter.NameCal. 4thReporter.pagepageReporter.Reporter.pagepageReporter.RequiredComma, Reporter.RequiredComma._PatternRequiredComma.RequiredCommaReporter.RequiredComma.Comma,Reporter.Volume53RequiredComma, RequiredComma._PatternRequiredComma.RequiredCommaSecondPartyWilliam S. Hart Union High School Dist. suprasupra, supra.,, supra._PatternShortCaseSupra.ShortCaseSuprasupra.suprasupramaster_name RESULTS_3"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","CitationRichText":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","IconShepardSignal":{"Id":2,"Title":"Possible negative treatment - cases","IconType":0,"ImagePath":"/Content/Images/IconSignalPossibleNegative.gif","Description":null},"ShepardSignalLink":"https: advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:554Y-9V21-J9X6-H4RV-00000-00","ShowShepardSignal":true,"ShowParentLink":false,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","ShortText":"53 Cal. 4th 861","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":null},"CQ":"","TOA":"","html":" "}" id="-2089375105">Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

DISCUSSION

Allegations of the TAC

Plaintiff is 85 years old and of Taiwanese descent. (TAC, 5.) In around 1997, Plaintiff met Defendant, and Defendant essentially recruited Plaintiff to become a religious disciple of his and work for Defendant’s various multi-level marketing companies. (TAC, 8, 21.) Defendant called himself the “Living Buddha” and told his disciples that they could become wealthy (like him) by practicing his teachings (dharma). (TAC, 14.) To Plaintiff, Defendant promised that at some point in the future, Plaintiff would be making $10,000 per month for his services. (TAC, 8, 21.) Plaintiff worked for Defendant for 18 years until he became disillusioned with Defendant and his teachings and “broke away” from Defendant on or about November 29, 2015. (TAC, 21, 30-35.) Plaintiff never received any remuneration from Defendant as promised, nor has Plaintiff reached a state of enlightenment through Defendant’s supposed teachings. (TAC, 36.) On July 15, 2017, Plaintiff filed a police report with the Alhambra Police Department against Defendant. (TAC, 37.) On July 17, 2017, an unknown person showed up at Plaintiff’s house, threatening to kill Plaintiff and his family if he sued Defendant. Plaintiff believes that the intruder was acting at the direction of Defendant. (TAC, 38.)

Plaintiff alleges that he was “brainwashed” by Defendant into being completely subservient to Defendant, including leasing an apartment in Alhambra for Defendant, setting up and maintaining a makeshift temple within the apartment, providing bookkeeping services for Defendant’s various companies, helping to source and produce the herbal health supplements sold by Defendant’s companies, and catering to Defendant when he was in town (driving, grocery shopping, cooking, washing cars, leasing a car for Defendant’s use, polishing shoes, washing linens, interpret, consult). (TAC, 16-19, 23-29.) Defendant forced Plaintiff to drive him around even though Plaintiff was elderly and had suffered various injuries that made driving unsafe. (TAC, 31-32.)

Intentional Infliction of Emotional Distress (IIED)

Plaintiff bases his IIED claim on the entirety of Defendant’s conduct toward him during his 18 years of “service”. (TAC, 40.) Plaintiff alleges that as a result of Defendant’s conduct, Plaintiff suffered lost wages plus severe emotional distress. (TAC, 41.)

To prevail on an IIED claim, a plaintiff must prove: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)

The court finds that Defendant has established that the IIED claim has no merit because there is no triable issue of fact as to at least one element of the claim, namely that Plaintiff did not suffer severe or extreme emotional distress as a result of Defendant’s actions or conduct. In order to prevail on the cause of action, a plaintiff must prove that he or she suffered “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair, supra, at p. 1051 (brackets in original).) In Hughes v. Pair, the California Supreme Court held that a plaintiff’s assertions that she “suffered discomfort, worry, anxiety, upset stomach, concern, and agitation” was insufficient to constitute severe or extreme emotional distress. (Ibid.) Here, as well, there is no evidence that Plaintiff suffered severe or extreme emotional distress. Plaintiff sought out a psychiatrist approximately 15 years ago because he was feeling nervous and depressed as a result of his relationship with Defendant. (Defendant’s Undisputed Material Fact (“UMF”) 68.) Since then, Plaintiff has not sought treatment for any emotional or psychological symptoms. (UMF 71.) No other evidence has been presented establishing the severity of Plaintiff’s emotional distress or that it has endured beyond a reasonably tolerable amount of time.

Summary adjudication of the first cause of action is granted.

Common Count - Money Paid Out and Expended

Plaintiff alleges that on December 28, 2014, he leased a Mercedes Benz vehicle for Defendant, at Defendant’s request. (TAC, 46.) When Plaintiff left Defendant in November 2015, the lease was cancelled and Plaintiff paid out the $9,037.52 early lease termination fee. (TAC, 46.) Plaintiff had also paid various apartment and business expenses for Defendant. (TAC, 46.)

“Where one pays out money for the benefit of another, at the latter’s request, the count for money paid, laid out, and expended will lie, and the law raises an implied promise and a legal liability on the part of the defendant to pay immediately on demand.” (Rains v. Arnett (1961) 189 Cal.App.2d 337, 344.)

Defendant contends that the common count has no merit because Plaintiff never told Defendant that he had incurred the cost (for the lease termination) and never asked Defendant for reimbursement. (See UMF 81.) But this fact is not substantiated by the portion of Plaintiff’s deposition cited by Defendant in support. Plaintiff testifies that he had to pay a lease termination penalty, that he did not “personally” ask Defendant for reimbursement but that his wife “probably” did, and that he has no written documentation showing that his wife asked for reimbursement. (Defendant’s Ex. C, pp. 134:8-135:5.) In any event, a common count claim for money lent does not require “proof of specific request for a loan” nor does it require proof of “an express promise to repay the loan.” (Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797, 811.) It is sufficient for a plaintiff to simply prove that the defendant “received the loan under circumstances showing an equitable obligation to repay it.” (Ibid.) Plaintiff’s evidence that the June 2017 payment for Defendant’s Mercedes Benz was coming due and that Defendant failed to respond to inquiries regarding its payment raises a triable issue of fact as to whether Defendant received a loan for the amount of the lease termination fee and whether Defendant has an equitable obligation to repay it. (Response to UMF 80.)

With respect to the other expenses that Plaintiff alleges he paid on behalf of Defendant, Plaintiff testified at deposition that he paid for certain items (refrigerator, microwave, vacuum, furniture) for Defendant’s apartment out of his own pocket. (Response to UMF 84.) This also raises a triable issue as to whether Defendant has an equitable obligation to reimburse Plaintiff for those items.

Summary adjudication of the second cause of action is denied.

Fraud

The fraud cause of action is based on the allegation that Defendant falsely promised to Plaintiff that Plaintiff would receive $10,000 per month plus returns and other financial rewards, as well as valuable religious blessings. (TAC, 52.) Plaintiff alleges that everything that he did for Defendant was based on those representations, but Defendant took Plaintiff’s money, time, and services with no intent to ever pay or repay Plaintiff. (TAC, 53-56.)

Defendant contends that the fraud claim is without merit because it is barred by the statute of frauds and the doctrine of laches. Defendant also contends that there is no cause of action as to him as an individual because Plaintiff “worked” for Defendant’s companies. Finally, Defendant argues that Plaintiff cannot show that Defendant intended to deceive Plaintiff, that Defendant made a promise as to a past or existing material fact, or that Plaintiff reasonably relied on any such promise.

“A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract.” (Ibid.) “In such cases, the plaintiff’s claim does not depend upon whether the defendant’s promise is ultimately enforceable as a contract.” (Ibid.) Defendant’s statute of frauds argument misses the mark for this reason. And as Plaintiff correctly argues, causes of action for money judgments are actions at law and are therefore not subject to the equitable defense of laches. (Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 461; Connolly v. Trabue (2012) 204 Cal.App.4t 1154, 1164.) The fraud claim is also properly directed to Defendant because Defendant is the individual who is alleged to have made the misrepresentations and false promises to Plaintiff. There is nothing in the TAC to suggest that the cause of action is based on conduct undertaken on behalf of Defendant’s companies or conduct that could be attributable to Defendant’s companies.

Although Defendant is correct that actionable misrepresentations must pertain to past or existing material facts, the misrepresentations at issue in this case (and in particular, the promise to that Plaintiff would be paid $10,000 per month for services rendered) are fairly characterized as false promises and not statements or predictions regarding a future event. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) Defendant also points out that Plaintiff admitted at deposition that he did not know whether Defendant had any intent to deceive him (UMF 87), but Defendant offers no authority requiring a plaintiff to have personal knowledge of the intent to deceive. As to the element of justifiable reliance, Defendant argues that Plaintiff’s reliance on a religious blessing as a promise that he would get “whatever [he] asked for” was unreasonable as a matter of law. (UMF 86.) Even so, Plaintiff’s fraud claim is not based solely on the promise that he would get “whatever [he] asked for” or “wealth”. The fraud claim is also based on the promise that he would be paid $10,000 per month.

Summary adjudication of the third cause of action is denied.

Elder Abuse

Financial elder abuse occurs when a person “takes, secretes, appropriates, obtains or retains real or personal property of an elder…for a wrongful use and with the intent to defraud or both.” (Welf. & Inst. Code, 15610.30, subd. (a).)

Plaintiff alleges that Defendant committed elder abuse when he forced Plaintiff to work as a virtual slave and controlled money, bank accounts, personal property, and other property belonging to Plaintiff. (TAC, 61.)

Defendant contends that the cause of action is without merit because it is based on an alleged oral employment agreement, which is barred by the statute of frauds. But the cause of action does not pertain to the enforcement of an oral agreement, and so the statute of frauds does not apply. Defendant’s argument that Plaintiff had the opportunity to stop working for Defendant but chose not to over an 18-year period does not account for Plaintiff’s allegations that he was “brainwashed” and that promises were made about payment, about wealth, and about religious blessings during that time. Moreover, as discussed above, there are triable issues as to whether Defendant actually reimbursed Plaintiff for all of the things Plaintiff paid for over the years, and whether Plaintiff’s failure to seek reimbursement was due to fraud.

Summary adjudication of the fourth cause of action is denied.

Punitive Damages

Lastly, Defendant contends that Plaintiff sought punitive damages only for intentional infliction of emotional distress. It follows, therefore according to Defendant, that Plaintiff’s claim for punitive damages falls in tandem with the failure of Plaintiff’s cause of action for intentional infliction of emotional distress. Defendant overlooks, however, that paragraph 58 of the TAC’s allegations covering elder abuse incorporate paragraphs 1 to 57, and paragraph 44 seeks punitive damages. Hence, summary adjudication of plaintiff’s cause of action for intentional infliction of emotional distress does not entirely dispose of plaintiff’s claim for punitive damages. The court finds that in light of the triable issues on fraud and elder abuse, summary adjudication on the punitive damages issue is properly denied.

CONCLUSION

Based on the foregoing, the court denies Defendant’s motion for summary judgment. The court grants Defendant’s motion for summary adjudication as to the first cause of action for intentional infliction of emotional distress. The court otherwise denies Defendant’s motion for summary adjudication.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: August 16, 2022

Colin Leis

Judge of the Superior Court

Case Number: ****7028    Hearing Date: October 16, 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 (without a valve) 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.

Hung v Chen

Motion to Quash Service of Summons

Calendar:	10
Case No.:	****7028
Hearing Date:	October 16, 2020
Action Filed:	July 21, 2017
Trial Date:	Not Set

MP:	Specially Appearing Defendant Pao Sheng Chen
RP:	Plaintiff Francis Hung

ALLEGATIONS:

Plaintiff Francis Hung (“Plaintiff”) alleges that he is an 81-year old American citizen originally from Taiwan. He alleges that he met Defendant Paosheng Chen (“Defendant”) in 1997 through a Buddhist couple. After meeting Defendant, Plaintiff decided to devote himself to Defendant, who claimed to be the “Living Buddha” and his organization, which Plaintiff later learned to be a cult and pyramid scheme. Plaintiff alleges that he truly believed Defendant was the Living Buddha and that he had been brainwashed for 20 years. He alleges he worked for Defendant for 20 years without pay and cleaned the Buddhist temple, purchased furniture and appliances for the temple, established several companies selling herbal health supplements, drove Defendant, and washed Defendant’s cars.

The Complaint, filed July 21, 2017, alleged four causes of action, and was served by substituted service on or about February 11, 2019. Defendant moved to quash service of the Complaint, which was initially heard on April 26, 2019, and continued to June 07, 2019. On May 02, 2019, Plaintiff filed a First Amended Complaint, alleging five (5) causes of action sounding in (1) Intentional Infliction of Emotional Distress (“IIED”), (2) Conversion, (3) Fraud (Misrepresentation), (4) Negligent Misrepresentation, and (5) Elder Abuse (Financial, Welf. & Inst. Code ;15610.30).

PRESENTATION:

Defendant filed the instant motion to quash service of summons on August 03, 2020, Plaintiff opposed the motion on August 17, 2020, and a reply brief was filed on August 21, 2020.

On August 28, 2020, the Court continued the instant matter to October 16, 2020 to permit Plaintiff an opportunity to submit a supplemental declaration from process server Ru-Ming Lee.

Defendant filed a supplemental memorandum in support of the instant motion on October 13, 2020.

RELIEF REQUESTED:

Defendant moves to quash service of summons.

DISCUSSION:

As a preliminary note, the Court did not request supplemental briefing in its August 28, 2020 minute order. Thus, the Court could disregard the supplemental briefing submitted by Defendant on October 13, 2020.

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 Civ. Proc., ;418.10, subd. (e)(1).)

"If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. . . ." (Code Civ. Proc., ; 415.20, subd. (b).)

Merits – On August 28, 2020 the Court allowed Plaintiff an opportunity to submit a supplemental declaration of process server Ru-Ming Lee to state facts underlying the contention that Jane Doe was an ostensible agent of Defendant. Specifically, “. . . Plaintiff contends only that Jane Doe was a receptionist at Defendant's usual place of business. While this raises an inference of ostensible agency, further surrounding facts are needed for the court to find such a definite implication or make the finding otherwise.” The subsequently-filed declaration states that Ru-Ming Lee observed a notice posted on the glass door of Antiaging Vanguard System International Enterprise Co., Ltd. ("AVS") referring business visitors next door to the Chunghwa Buddhism Yuntsz Jennfa Association ("CBY"), which led Ru-Ming Lee to assume that the two firms were related. The declaration further states that Ru-Ming Lee stated his purpose to a janitor at the common public area in front of AVS and CBY, who called out to Jane Doe, who approached from the front desk of CBY. Ru-Ming Lee further states that the Jane Doe's apparent authority given these circumstances led him to believe that Jane Doe was in charge for both AVS and CBY. (Decl. Ru-Ming Lee, ¶ 2.)

The Court finds that these facts are sufficient to make a finding that Jane Doe was an ostensible agent of Defendant. The Court will thus deny the instant motion.

---

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 Defendant Pao Sheng Chen’s Motion to Quash Service came on regularly for hearing on October 16, 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 IS DENIED.

DATE: _______________ _______________________________

JUDGE