On 08/24/2017 PANOPUS PLC filed a Contract - Other Contract lawsuit against PHILOUS, INC. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. MATZ, OTHER DISTRICT JUDGE and CURTIS A. KIN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
LAURA A. MATZ
OTHER DISTRICT JUDGE
CURTIS A. KIN
AUSSIE MEX S.A. DE C.V. A MEXICAN CORP.
OROZCO ALFONSO SANCHEZ
HONG SEOK PIL
GROUPO MINERO PHILOUS DE MEXICO S.A.DE CV
BRIAN CHUL LEE (DOE 1)
BRIAN CHUL LEE DOE 1
PETER T. STEINBERG ESQ.
STEINBERG PETER TODD
LAW OFFICES OF JOHN LEE
LEE JOHN BYUNG
PARK DANIEL MINSOO
1/30/2020: Motion for Judgment on the Pleadings
9/18/2019: Substitution of Attorney
9/25/2019: Ex Parte Application - EX PARTE APPLICATION DEFENDANTS' EX PARTE MOTION TO CONTINUE TRIAL
8/24/2017: Notice - NOTICE OF OSC
8/24/2017: Notice of Case Assignment - Unlimited Civil Case
8/24/2017: Notice of Case Management Conference
10/24/2017: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION
10/24/2017: Legacy Document - LEGACY DOCUMENT TYPE: MOTION
10/24/2017: Legacy Document - LEGACY DOCUMENT TYPE: EX-PARTE APPLICATION
10/24/2017: Minute Order - MINUTE ORDER ENTERED: 2017-10-24 00:00:00
1/19/2018: Order - ORDER [PROPOSED]
1/19/2018: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION
2/26/2018: Legacy Document - LEGACY DOCUMENT TYPE: AMENDMENT TO COMPLAINT
4/23/2018: Minute Order - MINUTE ORDER ENTERED: 2018-04-23 00:00:00
5/29/2018: Request for Entry of Default / Judgment
5/30/2018: Case Management Statement
6/8/2018: Legacy Document - LEGACY DOCUMENT TYPE: DEFAULT ENTERED
Hearing04/20/2020 at 09:00 AM in Department E at 600 East Broadway, Glendale, CA 91206; Non-Jury TrialRead MoreRead Less
Hearing04/09/2020 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Final Status ConferenceRead MoreRead Less
Hearing02/28/2020 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Hearing on Motion for Judgment on the PleadingsRead MoreRead Less
Hearing02/19/2020 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Status ConferenceRead MoreRead Less
DocketMotion for Judgment on the Pleadings; Filed by SEOK PIL HONG (Defendant); JOSEPH EUM (Defendant)Read MoreRead Less
Docketat 09:00 AM in Department E, Curtis A. Kin, Presiding; Non-Jury Trial ((Estimate3 - 5 days)) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Status Conference ((Post-Mandatory Settlement Conference)) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Final Status Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Order to Show Cause Re: (as to why monetary sanctions in the amount of $500.00 should not be imposed as to each side for failure to appear on 09/10/2019) - Not Held - Advanced and VacatedRead MoreRead Less
DocketNotice of Ruling (RE: Defendants' Ex Parte to Continue Trial); Filed by SEOK PIL HONG (Defendant); JOSEPH EUM (Defendant)Read MoreRead Less
DocketMotion; Filed by PHILOUS, INC. (Defendant); GROUPO MINERO PHILOUS de MEXICO,S.A.de CV (Defendant); SEOK PIL HONG (Defendant) et al.Read MoreRead Less
DocketRequest For CopiesRead MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
DocketComplaint filed-Summons IssuedRead MoreRead Less
DocketComplaint filed-Summons Issued; Filed by nullRead MoreRead Less
DocketSummons FiledRead MoreRead Less
DocketNotice (of OSC)Read MoreRead Less
DocketSummons; Filed by nullRead MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil CaseRead MoreRead Less
DocketNotice of Case Management ConferenceRead MoreRead Less
Case Number: EC067111 Hearing Date: June 26, 2020 Dept: E
[CCP §430.10 et. seq.]
Date: 6/26/20 (2:00 p.m.)
Case: Panopus Plc et al. v. Philous, Inc. et al. (EC067111)
Defendants Seok Pil Hong and Joseph Eum’s Demurrer to the First Amended Complaint (“FAC”) is OVERRULED IN PART and SUSTAINED IN PART.
On April 15, 2020, the Court continued the hearing to May 26, 2020 but ordered briefing based on the original hearing date of May 8, 2020. Therefore, the opposition was due on April 27, 2020, nine court days before the hearing date, as required by CCP § 1005(b). Even though the opposition was filed late on May 22, 2020, the Court exercises its discretion and considers the opposition. (Cal. Rule of Court 3.1300(d) [“If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate”].)
I. SECOND CAUSE OF ACTION: FRAUD (IRON ORE AGREEMENT)
With respect to the second cause of action for Fraud – Intentional Misrepresentation of Fact asserted by Panopus, Plc (“Panopus”), defendants argue that the authority of Hong and Eum to speak on behalf of Philous, Inc. (“Philous”) must be alleged. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 [“The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”].) Panopus alleges that Hong and Eum are officers and directors of Philous. (FAC ¶¶ 5, 6.) The iron ore contract also states that Hong is the legal representative of Philous. (FAC Ex. A at p. 1.) These allegations are sufficient for pleading purposes.
With respect to whether the allegations are sufficiently specific, Panopus alleges that, in December 2013, when Hong and Eum caused Philous, Inc. (“Philous”) to enter to the iron ore contract, Hong and Eum represented to Phil Thomas and Octavio Erquiaga of Panopus verbally and in writing that Philous would honor its contract and deliver the iron ore to Panopus. (FAC ¶ 17.) Panopus also alleges that numerous times, prior to execution of the contract by all parties and up to October 2014, Eum and Hong represented verbally and in email that the iron ore would be delivered. (Id.) Panopus also alleges that in September 2014, Hong signed an audit certificate stating that Philous held 1,275 tons of iron ore and emailed the certificate to Thomas on behalf of Panopus. (Id.) Based on these allegations, Panopus alleges that from December 2013 to October 2014, Hong and Eum made fraudulent representations that enticed Panopus to entering into the iron ore contract, as well as caused Panopus to remain confident up to October 2014 that the iron ore would be delivered to Panopus, even though the contract provided up to December 31, 2013 to for Philous to deliver the iron ore. (FAC Ex. A.) Notwithstanding the lack of specific dates of the representations, the allegations are sufficiently specific.
The demurrer to the second cause of action is OVERRULED.
II. THIRD CAUSE OF ACTION: FRAUD (CONE CRUSHER AGREEMENT)
With respect to the third cause of action for Fraud – Intentional Misrepresentation of Fact asserted by Aussie Mex S.A. De C.V. (“Aussie”), Aussie sufficiently alleges dates of the representations. Aussie alleges that the representations were made to entice it to enter into the cone crusher contract, which was entered on December 18, 2013. (FAC ¶ 23 & Ex. B.)
However, Hong and Eum’s authority to speak on behalf of Philous Mexico is not sufficiently alleged. Groupo Minero Philous de Mexico (“Philous Mexico”) is alleged to be the affiliate of Philous, but that does not mean that Hong and Eum are officers of Philous Mexico. (FAC ¶ 4; Tarmann, supra, 2 Cal.App.4th at p. 157.) Aussie also does not allege where and by what means Hong and Eum represented that they would pay for, care for, and return the cone crusher. (FAC ¶ 23; Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73, citing Hills Trans. Co. v. Southwest (1968) 266 Cal.App.2d 702, 707.)
The demurrer to the third cause of action is SUSTAINED.
III. FOURTH CAUSE OF ACTION: CONVERSION
With respect to the fourth cause of action for Conversion, the Court finds that Aussie did not engage in sham pleading to avoid demurrer. There is no showing that Aussie omitted Orozco from the Fraud and Conversion causes of action in an attempt to evade demurrer.
Defendants also contend that the iron ore contract discloses Panopus’ failure to pay Philous for delivery of 5,000 tons of iron ore, which purportedly contradicts Panopus’ allegation that it fulfilled its performance prior to demanding delivery. The iron ore contract’s imposition of an obligation upon Panopus to pay for the ore does not contradict Panopus’ allegation that it wired $218,750 to Philous in performance of its payment obligations. (FAC ¶ 17.)
Defendants also contend that Panopus’ allegation that Philous had ore but sold it to another customer contradicts Panopus’ allegations that defendant never had any iron to sell and that the audit certificate is false. (FAC ¶¶ 17, 18.) All the allegations could be true. First, Panopus never alleges that defendants did not have iron to sell, only that defendants never intended to deliver the iron to Panopus. (FAC ¶ 18.) Second, defendants could have sold the iron to another customer prior to September 2014, when Hong certified to Phil Thomas on behalf of Panopus that it held 1,275 tons of ore.
The demurrer to the fourth cause of action is OVERRULED.
Ten days leave to amend the third cause of action only.
Case Number: EC067111 Hearing Date: February 28, 2020 Dept: E
JUDGMENT ON THE PLEADINGS
[CCP § 438]
Case: Panopus, PLC, et al. v. Philous, Inc., et al. (EC067111)
Defendants Seok Pil Hong’s and Joseph Eum’s Motion for Judgment on the Pleadings is GRANTED with 10 days leave to amend as to the second and fourth causes of action and DENIED as to the fifth cause of action.
As an initial matter, the Court notes the motion was untimely filed under CCP § 438(e). The Case Management Conference (“CMC”) was held on June 4, 2018. During the CMC, the trial was initially set for June 3, 2019. This motion for judgment on the pleadings was not filed until January 30, 2020. However, § 438(e) provides explicitly for an untimely motion to be heard if the Court “otherwise permits,” and the Court in its discretion considers the motion on the merits, because the fraud causes of action are not pled with the required specificity, as discussed below.
I. SECOND CAUSE OF ACTION: FRAUD (IRON ORE AGREEMENT)
With respect to second cause of action for Fraud based on the iron ore agreement, this cause of action is not time-barred as defendants contend. “[A] demurrer based on an affirmative defense [such as the statute of limitations] will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.” (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 396.) While the iron ore agreement provides for delivery on December 31, 2013 (Comp. Ex. A at p. 4) and defendants allegedly failed to deliver iron ore as provided, plaintiff Panopus, PLC (“Panopus”) also alleges that defendants Eum and Hong misrepresented at “numerous and diverse times that the subject exportable iron ore would be delivered” and that Hong signed an audit certificate in September 2014 concerning the amount of ore Philous, Inc. held. (Compl. ¶ 18.) Based on these alleged misrepresentations, Panopus argues that it had reason to discover defendants’ fraud no earlier than late October 2014, when defendants stopped communicating with Panopus altogether. (Id. ¶ 19.) Accordingly, the allegations of the complaint do not necessarily compel the conclusion that the fraud respect to the iron ore agreement was untimely brought, as a trier of fact could conclude Panopus only had reason to suspect defendants of fraud sometime after defendants failed to deliver iron ore per the agreement, namely, when defendants cut off all contact about the failure to deliver iron ore.
Nevertheless, the Court finds that judgment on the pleading is appropriately granted as to the second cause of action because it is not pled with the requisite specificity. Panopus fails to allege how, when, where, to whom on behalf of Panopus, and by what means Eum and Hong represented that the iron ore would be delivered. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) Indeed, Panopus does not even allege whether these representations were made after defendants failed to deliver the iron ore. While Panopus alleges that Hong signed the audit certificate in September 2014 stating that Philous, Inc. held 1,275 tons of iron ore, Panopus does not state how, where, to whom on behalf of Panopus, and by what means Hong submitted the certificate to Panopus. While fraud causes of action may be pled with less specificity when defendants must necessarily possess full information or when defendants know more of the facts (Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217), plaintiff here is in a position to plead this cause of action with more specificity, as it was a participant in execution of the agreement. Accordingly, the motion as to the second cause of action is GRANTED with 10 days leave to amend.
II. FOURTH CAUSE OF ACTION: FRAUD (CONE CRUSHER AGREEMENT)
With respect to the fourth cause of action for Fraud based on the cone crusher agreement, plaintiff Aussie Mex, S.A. de C.V. (“Aussie”) sufficiently alleges that it discovered the fraud no earlier than late October 2014, when defendants stopped communicating with Aussie. Aussie alleges that Hong repeatedly assured Aussie that they would pay leasing fees on the cone crusher, which defendants needed to extract the iron ore. (Compl. ¶ 31.) As alleged, the fourth cause of action is not necessarily time-barred, as a trier of fact may determine whether it was reasonable for Aussie to discover the fraud in late October 2014, as opposed to June or July 2014 when defendants allegedly stop paying the leasing fees on the equipment.
Nonetheless, like the second cause of action, Aussie does not allege the purported fraud with the requisite specificity, including how, when, where, to whom on behalf of Aussie, and by what means Hong represented to Aussie that defendants would pay the rental fees on the cone crusher. Accordingly, the motion as to the fourth cause of action is GRANTED with 10 days leave to amend.
III. FIFTH CAUSE OF ACTION: CONVERSION
For the same reasons stated with respect to the fourth cause of action, the Court finds that the fifth cause of action for conversion is not necessarily time-barred. Further, the Court finds that Aussie sufficiently alleges Hong refused to return the cone crusher that Aussie leased to now-dismissed defendant Groupo Minero Philous de Mexico, S.A. de C.V. (Compl. ¶ 35.) Accordingly, the motion as to the fifth cause of action is DENIED.