This case was last updated from Los Angeles County Superior Courts on 08/09/2021 at 21:13:01 (UTC).

JIANGSU GUOTAI INTERNATIONAL GROUP GUOMAO CO., LTD, A CHINESE BUSINESS ENTITY VS JR GROUP, INC., A CALIFORNIA CORPORATION, ET AL.

Case Summary

On 05/29/2020 JIANGSU GUOTAI INTERNATIONAL GROUP GUOMAO CO , LTD, A CHINESE BUSINESS ENTITY filed a Contract - Other Contract lawsuit against JR GROUP, INC , A CALIFORNIA CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RANDOLPH M. HAMMOCK and THERESA M. TRABER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0461

  • Filing Date:

    05/29/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RANDOLPH M. HAMMOCK

THERESA M. TRABER

 

Party Details

Plaintiff

JIANGSU GUOTAI INTERNATIONAL GROUP GUOMAO CO. LTD A CHINESE BUSINESS ENTITY

Defendants

LAM SIU KAWN

JR GROUP INC. A CALIFORNIA CORPORATION

NIE ZHANG PING

LAM RUBY

YU BING SHUANG AKA RUBY LAM

J R GROUP INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff Attorney

PUGH FIROUZEH

Defendant Attorney

MOORE WALTER WHITMAN

 

Court Documents

Memorandum - MEMORANDUM NOTICE OF HEARING ON DEFENDANT ZHANG PING NIE'S DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF WALTER WHITMAN MOORE.

7/21/2020: Memorandum - MEMORANDUM NOTICE OF HEARING ON DEFENDANT ZHANG PING NIE'S DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF WALTER WHITMAN MOORE.

Notice of Change of Address or Other Contact Information

6/18/2021: Notice of Change of Address or Other Contact Information

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

4/27/2021: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

Clerks Certificate of Service By Electronic Service

4/27/2021: Clerks Certificate of Service By Electronic Service

Notice Re: Continuance of Hearing and Order

3/10/2021: Notice Re: Continuance of Hearing and Order

Motion to Compel Further Discovery Responses

4/6/2021: Motion to Compel Further Discovery Responses

Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT

2/11/2021: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION TO STRIKE FIRST AMENDED COMPLAINT

Notice of Motion - NOTICE OF MOTION DEFENDANTS' NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER; 2) MEMORANDUM OF POINTS AND AUTHORITIES; AND 3) DECLARATION OF WALTER WHITMAN MOORE

2/16/2021: Notice of Motion - NOTICE OF MOTION DEFENDANTS' NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER; 2) MEMORANDUM OF POINTS AND AUTHORITIES; AND 3) DECLARATION OF WALTER WHITMAN MOORE

Amended Complaint - AMENDED COMPLAINT (1ST)

11/16/2020: Amended Complaint - AMENDED COMPLAINT (1ST)

Notice of Ruling

10/20/2020: Notice of Ruling

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON DEMURRER - WITH MOTION...)

10/16/2020: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE; HEARING ON DEMURRER - WITH MOTION...)

Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE COMPLAINT

10/8/2020: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE COMPLAINT

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

9/29/2020: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Request for Judicial Notice - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF JIANGSU GUOTAI INTERNATIONAL GROUP GUOMAO CO., LTDS OPPOSITIONS TO DEFENDANT ZHANG PING NIES DEMURRER AND MOTION TO

9/29/2020: Request for Judicial Notice - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF JIANGSU GUOTAI INTERNATIONAL GROUP GUOMAO CO., LTDS OPPOSITIONS TO DEFENDANT ZHANG PING NIES DEMURRER AND MOTION TO

Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

8/5/2020: Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

Notice of Case Management Conference

6/15/2020: Notice of Case Management Conference

Summons - SUMMONS ON COMPLAINT

5/29/2020: Summons - SUMMONS ON COMPLAINT

Civil Case Cover Sheet

5/29/2020: Civil Case Cover Sheet

36 More Documents Available

 

Docket Entries

  • 04/18/2022
  • Hearing04/18/2022 at 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 04/12/2022
  • Hearing04/12/2022 at 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 03/04/2022
  • Hearing03/04/2022 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 06/18/2021
  • Docketat 1:30 PM in Department 47, Theresa M. Traber, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Advanced and Continued - by Court

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  • 06/18/2021
  • DocketNotice of Change of Address or Other Contact Information; Filed by Firouzeh Pugh (Attorney)

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  • 06/08/2021
  • Docketat 1:30 PM in Department 47, Theresa M. Traber, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by Party

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  • 06/08/2021
  • Docketat 1:30 PM in Department 47, Theresa M. Traber, Presiding; Hearing on Motion for Protective Order - Not Held - Taken Off Calendar by Party

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  • 06/08/2021
  • Docketat 1:30 PM in Department 47, Theresa M. Traber, Presiding; Informal Discovery Conference (IDC) - Not Held - Taken Off Calendar by Party

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  • 05/21/2021
  • DocketNotice (of Taking Defendants' Discovery Motions of Calendar and Request That Court Take Informal Discovery Conference Off Calendar); Filed by ZHANG PING NIE (Defendant); SIU KAWN LAM (Defendant); J R Group, Inc., a California Corporation (Defendant)

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  • 05/11/2021
  • Docketat 10:00 AM in Department 47, Theresa M. Traber, Presiding; Hearing on Motion for Protective Order - Not Held - Advanced and Continued - by Court

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45 More Docket Entries
  • 08/05/2020
  • DocketNotice (of Case Management Conference); Filed by JIANGSU GUOTAI INTERNATIONAL GROUP GUOMAO CO., LTD, a Chinese business entity (Plaintiff)

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  • 07/21/2020
  • DocketMemorandum (NOTICE OF HEARING ON DEFENDANT ZHANG PING NIE'S DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; and DECLARATION OF WALTER WHITMAN MOORE.); Filed by ZHANG PING NIE (Defendant)

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  • 07/21/2020
  • DocketDemurrer - with Motion to Strike (CCP 430.10); Filed by ZHANG PING NIE (Defendant)

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  • 07/21/2020
  • DocketNotice of Motion (AND MOTION TO STRIKE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; and DECLARATION OF WALTER WHITMAN MOORE.); Filed by ZHANG PING NIE (Defendant)

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  • 06/18/2020
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by JIANGSU GUOTAI INTERNATIONAL GROUP GUOMAO CO., LTD, a Chinese business entity (Plaintiff)

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  • 06/15/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/29/2020
  • DocketSummons (on Complaint); Filed by JIANGSU GUOTAI INTERNATIONAL GROUP GUOMAO CO., LTD, a Chinese business entity (Plaintiff)

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  • 05/29/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 05/29/2020
  • DocketComplaint; Filed by JIANGSU GUOTAI INTERNATIONAL GROUP GUOMAO CO., LTD, a Chinese business entity (Plaintiff)

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  • 05/29/2020
  • DocketCivil Case Cover Sheet; Filed by JIANGSU GUOTAI INTERNATIONAL GROUP GUOMAO CO., LTD, a Chinese business entity (Plaintiff)

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Tentative Rulings

Case Number: 20STCV20461    Hearing Date: February 22, 2021    Dept: 47


Case Number: 20STCV30466    Hearing Date: February 22, 2021    Dept: 47

Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: February 22, 2021 TRIAL DATE:  May 23, 2022
CASE:  Albert Pagosyan, et al. v. BZ Design Inc., et al.
CASE NO.:  20STCV30466
 
MOTION TO STRIKE [PORTIONS OF] UNVERIFIED FIRST AMENDED COMPLAINT
 
MOVING PARTY: Defendants Geoboden, Inc., Cyrus Radvar aka Shahrokh Esmaily Radvar, Parviz Azar & Associates, Inc., and James MacGregor Renfrew Jr.
RESPONDING PARTY(S): Plaintiffs Albert Pagosyan and Marina Avetisyan Seward
PROOF OF SERVICE:
Correct Address: Yes.
16/21 (CCP § 1005(b)): OK. Served by mail and email on January 12, 2021.
 
CASE HISTORY:
08/11/20: Complaint filed.
12/10/20: First Amended Complaint filed.
02/10/21: Cross-Complaint filed by Zafar Ahmed and Farzad M. Aflakian aka Fred Aflakian.
02/10/21: Cross-Complaint filed by AC Engineering Group, Inc. and Heydar Arsalan Rad.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiffs allege that they each purchased adjoining vacant lots intending to build a single-family residence on each lot to sell as an investment. They hired Defendant BZ Design to oversee the feasibility study for the proposed residences. BZ Design hired other Defendants in turn. Eventually, Plaintiffs discovered that Defendants’ reports were poor and/or inaccurate. Plaintiffs allege breach of contract, negligence, fraud, and negligent misrepresentation. 
Four of the Defendants move to strike Plaintiffs’ prayer for punitive damages and related allegations.
TENTATIVE RULING:
Defendants’ motion to strike is DENIED AS MOOT as to the prayer for punitive damages in connection with Plaintiffs’ causes of action for negligent misrepresentation. The motion is otherwise DENIED.
DISCUSSION:
Motion To Strike
Meet and Confer
The Declaration of Attorney Terry A. Jones reflects that the meet and confer requirement of CCP § 435.5 was satisfied in that she attempted to meet and confer and did not receive a response, although counsel is reminded that an automatic 30-day extension is available when parties are unable to meet and confer in a timely manner. (CCP § 435.5(a)(2).) Indeed, Plaintiffs’ partial stipulation suggests that the parties could have resolved at least one of the issues raised in this motion.
Analysis 
Defendants move to strike Plaintiffs’ prayer for punitive damages as to their fraud claim, their prayer for punitive damages as to their negligent misrepresentation claims, and related allegations in Paragraph 88 of the first amended complaint, which is part of Plaintiffs’ fraud cause of action.
Plaintiffs have agreed to strike the prayer for punitive damages as to the causes of action for negligent misrepresentation. Accordingly, the motion is DENIED AS MOOT as to that prayer.
As to the prayer for punitive damages in connection with the fraud cause of action, and the related allegation, the motion is DENIED. 
Although Defendants’ notice of motion indicates that all of the moving Defendants move to strike these allegations, their conclusion requests only that these allegations be stricken as to Defendants Cyrus Radvar and Parviz Azar & Associates, Inc.
In any event, Plaintiffs’ allegations are sufficient to show “malice, oppression, or fraud” for purposes of punitive damages under Civil Code § 3294(a). “Fraud” is defined, for purposes of punitive damages, 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.” (Id. § 3294(c)(3).) In that context, “[a]ll that is required is that the fraud must equate to the conduct which gives rise to liability.” (Notrica v. State Comp. Ins. Fund (1999) 70 Cal.App.4th 911, 947-948.) The defendant must have “actively sought an injury to” the plaintiff’s rights, and “not [be] merely indifferent to those rights.” (Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1181.)
Here, Plaintiffs allege, inter alia, that Defendants made their intentional misrepresentations “for two years, while Plaintiffs continued to invest in the project and the Subject Property and rely on Defendants, with the intention on the part of Defendants of thereby depriving Plaintiff [sic] of property, legal rights or otherwise causing injury.” (¶ 88.) This allegation goes beyond a mere conclusory assertion of malice, fraud, or oppression.
Although Defendants do not cite Civil Code § 3294(b), they appear to argue in their reply that Plaintiffs’ allegations are insufficient as to the corporate moving Defendants – or at least one of them, Parviz Azar & Associates, Inc. (Reply, at p. 3.) Section 3294(b) requires particular allegations when punitive damages are sought against a corporation, including that the “advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code § 3294(b).) 
Here, however, Defendants did not raise that argument in their opening brief. “[P]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.)
Moreover, even if the Court were to consider this argument, Plaintiffs allege the individual Defendants who allegedly made the misrepresentations on behalf of the corporate Defendants that form the basis for the prayer for punitive damages, along with their status as owners of the corporate Defendants. (¶¶ 4, 16, 84.5)
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated:   February 22, 2021 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at  Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Case Number: 20STCV20461    Hearing Date: October 16, 2020    Dept: 47

Jiangsu Guotai International Group Guomao Co., Ltd. v. JR Group, Inc., et al.

 

(1) DEMURRER TO COMPLAINT;

(2) MOTION TO STRIKE COMPLAINT

MOVING PARTY: (1)-(2) Defendant Zhang Ping Nie

RESPONDING PARTY(S): (1)-(2) Plaintiff Jiangsu Guotai International Group Guomao Co., Ltd.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a breach of contract action. Plaintiff alleges that Defendant JR Group ordered goods from Plaintiff and accepted the goods but did not pay for them. Plaintiff also alleges that Defendants committed fraud by falsely promising to pay for the goods.

Defendant Zhang Ping Nie demurs to the complaint and moves to strike portions of it.

TENTATIVE RULING:

Defendant Zhang Ping Nie’s demurrer to the complaint is SUSTAINED with leave to amend as to the first and third causes of action. The demurrer is OVERRULED as to the second and fourth causes of action. The demurrer is also SUSTAINED as to the fifth cause of action. As to the fifth cause of action, Plaintiff must demonstrate at the hearing that there is a reasonable possibility of successful amendment. Otherwise, no leave to amend will be given.

The motion to strike is GRANTED without leave to amend as to ¶¶ 13(C), 13(D), and Exhibit 1 to the Complaint. The motion is DENIED as to ¶ 14.

DISCUSSION:

Demurrer

Meet and Confer

The Declaration of Attorney Walter Whitman Moore reflects that the meet and confer requirement was satisfied. (CCP § 430.41.)

Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of (1) a verified petition for order reinstating Petitioner J R Group, Inc. to active status in another LASC action, Case No. 19STCP04372; and (2) the declaration of Zhang Ping Nie filed in the same case.

Plaintiff’s requests are GRANTED per Evidence Code § 452(d) (court records).

Analysis

Defendant Zhang Ping Nie demurs to all five causes of action on the ground that they fail to state facts sufficient to constitute a cause of action and are uncertain. (CCP § 430.10(e), (f).) Defendant also demurs to the first, third, and fifth causes of action on the ground that they fail to specify whether the alleged contract was written, oral, or implied by conduct.

Uncertainty

As to uncertainty, the demurrer is OVERRULED as to all five causes of action. Demurrers for uncertainty are disfavored, because discovery can be used for clarification, and they apply only where defendants cannot reasonably determine what issues or claims are stated. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) That is not the case here. If the complaint is not so incomprehensible that Defendant cannot reasonably respond – and it is not – then the complaint is not uncertain. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848 n.3.) Moreover, a failure to specify what specific aspects of a cause of action are uncertain is another basis on which to overrule the demurrer. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, overruled on other grounds by Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 328.)

Alter Ego Allegations

Defendant argues that all of Plaintiff’s causes of action fail to state facts sufficient to constitute a cause of action against him because the alter ego allegations in the complaint are inadequate.

Plaintiff argues that this is an improper ground for a demurrer, as it does not dispose of any cause of action. However, Defendant raises the inadequacy of the alter ego allegations to support its argument that all five causes of action fail to state facts sufficient to constitute a cause of action against him. Thus, this is appropriate to consider (while recognizing that Plaintiff alleges actions by all “DEFENDANTS” throughout the complaint, and therefore Plaintiff does not rely solely on the demurring Defendant’s alter ego liability as Defendant contends).

Alter ego allegations may be pled generally, and the principal factors for piercing the corporate veil—individual dominated the affairs of the corporation, unity of interest and ownership, corporation is a mere shell, diversion of income, inadequate capitalization, failure to issue stock and observe corporate formalities, adherence to fiction of separate corporate existence would work an injustice—may be alleged in conclusory terms. (First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 914-916.)

It is sufficient that refusal to recognize unity of corporation and individual “will bring about inequitable results” (citation omitted). All that is required is a showing that it would be unjust to persist in recognition of the separate entity of the corporation (Citation omitted).

(Claremont Press Publishing Co. v. Barksdale (1960) 187 Cal.App.2d 813, 817.)

The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action, not whether they are true. No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Citation omitted.) Furthermore, plaintiff’s possible inability or difficulty in proving the allegations of the complaint is of no concern.” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)

Here, the complaint alleges the following as to the demurring Defendant as alter ego:

11. PLAINTIFF is informed and believes, and based thereon, alleges that DEFENDANTS NIE, SIU and LAM, and each of them, at all times herein mentioned:

(A) Dominated, controlled, and influences, and does not dominate, control, and influence, DEFENDANT JR, and the other officers and directors of DEFENDANT JR, as well as the business, and property of said entity;

(B) At all times since its incorporation, DEFENDANT JR has been, and now is, a mere shell and naked framework which DEFENDANTS NIE, SIU and LAM have used, and do use, DEFENDANT JR as a conduit for the conduct of their personal business and/or property affairs, and/or as obligor for the assumption of obligations and/or liabilities incapable of performance of DEFENDANT JR, which are the obligations and liabilities of DEFENDANTS NIE, SIU and LAM;

(C) DEFENDANTS NIE, SIU and LAM created DEFENDANT JR, which is being operated pursuant to a scheme, plan and design conceived by DEFENDANTS NIE, SIU and LAM whereby the income, revenue and profits of DEFENDANT JR are and/or have been converted by DEFENDANTS NIE, SIU and LAM;

(D) There is such unity of interest and control between DEFENDANT JR on the one hand, and DEFENDANTS NIE, SIU and LAM, on the other hand, such that the individuality and separateness of DEFENDANT JR and of DEFENDANTS NIE, SIU and LAM has ceased. Adherence to the fiction of the separate existence of DEFENDANT JR shall improperly sanction inequality and promote injustice; and

(E) DEFENDANTS NIE, SIU and LAM held and do now hold substantial interest in said corporate DEFENDANT JR.

(F) There is such a unity of interest and control between DEFENDANT JR, on the one hand, and DEFENDANTS NIE, SIU and LAM, on the other hand, such tat the individuality and separateness of DEFENDANT JR and of DEFENDANTS NIE, SIU and LAM has ceased. Adherence to the fiction of the separate existence of DEFENDANT JR shall improperly sanction inequity and promote injustice; and

(G) DEFENDANTS NIE, SIU and LAM held and do now hold substantial interest in DEFENDANT JR.

(Complaint ¶ 11.) These allegations are sufficient to plead that Defendant Nie is the alter ego of Defendant JR Group. Plaintiff's possible inability or difficulty in proving the allegations of the complaint is of no concern. (Citation omitted.)” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)

Accordingly, the demurrer to each cause of action is OVERRULED to the extent that it was based on Plaintiff’s alleged failure to adequately plead Defendant’s alter ego liability.

The remaining grounds for the demurrer are discussed below in connection with each cause of action.

First Cause of Action (Breach of Written Contract – Goods Ordered and Delivered to Lularoe, LLC)

Defendant argues that this cause of action does not state facts sufficient to constitute a cause of action against him.

A cause of action for breach of contract has the following elements: “(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Agam v. Gavra (2015) 236 Cal.App.4th 91, 104.)

Defendant argues that none of the exhibits attached to the complaint, which include unsigned invoices, “is a contract or even purports to be a contract.” (Demurrer, at p. 9.) It is true that “[u]nsigned invoices . . . cannot on their own create a contract or add terms to a contract.” (C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1501.) Here, however, the complaint does not merely rely on the attached invoices. Nor is there any requirement to attach a copy of the agreement to the complaint, as the terms of the contract may be “set out verbatim in the body of the complaint.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal. App. 3d 452, 458-459.) More recent case law is even more permissive, allowing a plaintiff to plead the legal effect of a written contract rather than its precise language. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) Defendant also argues that Plaintiff has not met this standard because it has not set out the terms of the contract “verbatim in the body of the complaint.” (Demurrer, at p. 9.)

Here, although Plaintiff uses the disfavored practice of incorporating the prior paragraphs by reference into the first cause of action without actually alleging any elements of breach of contract other than damages in the first cause of action itself,[1] Plaintiff has alleged the existence of a written agreement with Defendants under which Plaintiff agreed via WeChat to manufacture and deliver goods, Plaintiff’s performance, Defendants’ breach, and Plaintiff’s resulting damages. (¶¶ 15-25, 37.) These allegations are sufficient. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.)

Defendant is correct, however, that Plaintiff has not alleged whether the contract is written, oral, or implied by conduct, as required by CCP § 430.10(g). Plaintiff labels this cause of action “breach of written contract,” but Plaintiff nowhere alleges that the contract was written. It is a “well-established principle that a court is not bound by the captions or labels of a cause of action in a pleading.” (Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4th 1273, 1281.) Rather, the “nature and character of a pleading is to be determined from the facts alleged, not the name given by the pleader to the cause of action.” (Ibid.)

Accordingly, the demurrer to the first cause of action is SUSTAINED with leave to amend to specify whether the alleged contract is written, oral, or implied by conduct.

Second Cause of Action (Common Counts – Goods Sold and Delivered to Lularoe LLC)

Defendant demurs to the second cause of action on the ground that it does not state facts sufficient to constitute a cause of action against him. (CCP § 430.10(e).)

Defendant argues that this common count must fail because the corresponding contract claim in the first cause of action was not properly pleaded. As discussed above, however, other than Plaintiff’s failure to specify the type of contract at issue, its allegations are sufficient. Therefore, this is not a proper basis on which to demur to the second cause of action.

Defendant also argues that this claim fails because Plaintiff cannot sue on a quasi-contract when there is a valid contract between the parties. However, Plaintiff is entitled to plead alternate or inconsistent theories of liability. (Adams v. Paul (1995) 11 Cal.4th 583, 593; see also Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1403 [“We need not and, based on the principle that a party may plead alternative theories that are inconsistent with one another, cannot conclude that the complaint stated one theory to the exclusion of the other.”].)

Finally, Defendant argues that this cause of action must fail because Plaintiff never delivered the goods, which is supposedly evident from the attachments to the complaint, which indicate that third parties received the goods in question. (Demurrer, at p. 17.) However, Plaintiff specifically alleges that it purchased goods on Defendants’ behalf and that Defendants “received and accepted” the goods. (Complaint ¶¶ 39, 40.) Plaintiff also alleges that it delivered the goods “to DEFENDANTS at the designated location of LLR.” (¶ 17.) Thus, the attachments to the complaint are not inconsistent with delivery to a third party on behalf of Defendants.

Accordingly, the demurrer is OVERRULED as to the second cause of action for goods sold and delivered.

Third Cause of Action (Breach of Written Contract – Goods Ordered and Delivered to Defendant JR Group, Inc.)

For the reasons discussed in connection with the first cause of action, the demurrer to the third cause of action is SUSTAINED with leave to specify whether the contract was written, oral, or implied by conduct. The complaint suggests that this agreement was implied by conduct by stating that the parties “agreed and conducted certain business transactions with each other” (¶ 47), but the complaint does not explicitly so state, and such an allegation might have implications for Plaintiff’s other causes of action.[2]

Fourth Cause of Action (Common Counts – Goods Sold and Delivered to Defendant JR Group, Inc.)

For the reasons discussed in connection with the second cause of action, Defendant’s demurrer to the fourth cause of action is OVERRULED.

Fifth Cause of Action (Fraud)

Defendant demurs to the fifth cause of action for fraud on the ground that it fails to allege facts sufficient to constitute a cause of action against him.[3] (CCP § 430.10(e).)

The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

 

Fraud-based claims are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) To advance a cognizable fraud claim, “every element of the cause of action . . . must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a fraud claim deficient in any material respect.” (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) Plaintiff must specify “how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)

Here, Plaintiff alleges only that “DEFENDANTS acting through their agent and co-conspirator Ruby Lam made a false promise that the DEFENDANTS would pay for the GOODS shipped to the location given by DEFENDANTS within 60 days of delivery.” (¶ 63.) Plaintiff does not specify how, when, to whom, or by what means this false promise was made. Nor does Plaintiff allege that it would have acted any differently had Defendant(s) not made this alleged false promise.

Plaintiff points to various exhibits to attempt to fill in the gaps of these allegations. This does not satisfy the requirement to allege fraud with specificity, at least where the complaint itself does not refer explicitly to the exhibits that support the elements of this cause of action. (Cf. Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 242, 248 [concluding that the plaintiffs’ attachment of the relevant documents met the heightened pleading burden for fraud where they alleged that those documents contained the fraudulent statements].)

Accordingly, the demurrer is SUSTAINED as to the fifth cause of action for fraud.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. If it does not, no leave to amend will be given.

Motion to Strike

Meet and Confer

The Declaration of Attorney Walter Whitman Moore reflects that the meet and confer requirement was satisfied. (CCP § 435.5.)

Analysis

The motion to strike is GRANTED without leave to amend as to ¶¶ 13(C), 13(D), and Exhibit 1 to the Complaint. Defendant is correct that these allegations and this exhibit are “irrelevant” matter. (CCP § 436(a).) These allegations regarding a defendant’s dealings with a non-party are “neither pertinent to nor supported by an otherwise sufficient claim” alleged in the complaint. (CCP § 431.10(b).)

The motion to strike is DENIED as to ¶ 14, which does allege conduct by the Defendants in this action as to this Plaintiff.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: October 16, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court


[1] See Uhrich v. State Farm Fire & Cas. Co. (2003) 109 Cal. App. 4th 598, 605 [referring to the practice of “incorporating all or most prior paragraphs within each purported cause of action” as “disfavored,” and noting that “[t]his type of pleading should be avoided as it tends to cause ambiguity and creates redundancy”].

[2] “[W]here services have been rendered under a contract which is unenforceable because not in writing, an action generally will lie upon a common count for quantum meruit.” (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 996.)

[3] Defendant also purports to demur to this cause of action on the ground that Plaintiff did not specify whether the alleged contract was written, oral, or implied by conduct. (Notice, at p. 2.) This is not a breach of contract cause of action, however, and therefore CCP § 430.10(g) does not apply.

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