This case was last updated from Los Angeles County Superior Courts on 12/23/2020 at 15:10:05 (UTC).

PANOPUS PLC VS PHILOUS, INC.

Case Summary

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 and CURTIS A. KIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7111

  • Filing Date:

    08/24/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. MATZ

CURTIS A. KIN

 

Party Details

Plaintiffs

AUSSIE MEX S.A. DE C.V. A MEXICAN CORP.

PANOPUS PLC.

PLC. PANOPUS

AUSSIE MEX S.A. DE C.V. A MEXICAN CORPORATION

PLC. A MALAYSIAN CORPORATION PANOPUS

Defendants

PHILOUS INC.

EUM JOSEPH

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

LEE AN INDIVIDUAL BRIAN CHIU

EUM AN INDIVIDUAL JOSEPH

PHILOUS INC. A CALIFORNIA CORPORATION

HONG AN INDIVIDUAL SEOK PIL

Attorney/Law Firm Details

Plaintiff Attorneys

PETER T. STEINBERG ESQ.

STEINBERG PETER TODD

Defendant Attorneys

LAW OFFICES OF JOHN LEE

LEE JOHN BYUNG

PARK DANIEL MINSOO

 

Court Documents

Minute Order - MINUTE ORDER (STATUS CONFERENCE (POST-MANDATORY SETTLEMENT CONFERENCE))

2/19/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE (POST-MANDATORY SETTLEMENT CONFERENCE))

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW) OF 04/15/2020

4/15/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW) OF 04/15/2020

Reply - REPLY IN SUPPORT OF DEMURRER

5/29/2020: Reply - REPLY IN SUPPORT OF DEMURRER

Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

9/15/2020: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

9/15/2020: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY...)

11/13/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY...)

Motion for Judgment on the Pleadings

1/30/2020: Motion for Judgment on the Pleadings

Substitution of Attorney

9/18/2019: Substitution of Attorney

Notice - NOTICE OF OSC

8/24/2017: Notice - NOTICE OF OSC

Notice of Case Assignment - Unlimited Civil Case

8/24/2017: Notice of Case Assignment - Unlimited Civil Case

Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

10/24/2017: Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

Legacy Document - LEGACY DOCUMENT TYPE: EX-PARTE APPLICATION

10/24/2017: Legacy Document - LEGACY DOCUMENT TYPE: EX-PARTE APPLICATION

Order - ORDER [PROPOSED]

1/19/2018: Order - ORDER [PROPOSED]

Legacy Document - LEGACY DOCUMENT TYPE: DECLARATION

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

Legacy Document - LEGACY DOCUMENT TYPE: AMENDMENT TO COMPLAINT

2/26/2018: Legacy Document - LEGACY DOCUMENT TYPE: AMENDMENT TO COMPLAINT

Minute Order - MINUTE ORDER ENTERED: 2018-04-23 00:00:00

4/23/2018: Minute Order - MINUTE ORDER ENTERED: 2018-04-23 00:00:00

Request for Entry of Default / Judgment

5/29/2018: Request for Entry of Default / Judgment

Legacy Document - LEGACY DOCUMENT TYPE: DEFAULT ENTERED

6/8/2018: Legacy Document - LEGACY DOCUMENT TYPE: DEFAULT ENTERED

75 More Documents Available

 

Docket Entries

  • 03/19/2021
  • Hearing03/19/2021 at 08:30 AM in Department E at 600 East Broadway, Glendale, CA 91206; Hearing on Motion for Terminating Sanctions

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  • 02/01/2021
  • Hearing02/01/2021 at 09:00 AM in Department E at 600 East Broadway, Glendale, CA 91206; Non-Jury Trial

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  • 01/21/2021
  • Hearing01/21/2021 at 10:00 AM in Department E at 600 East Broadway, Glendale, CA 91206; Final Status Conference

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  • 12/15/2020
  • DocketMotion for Terminating Sanctions; Filed by JOSEPH EUM, an individual (Defendant)

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Compel (Responses to Requests for Production of Documents, Set One) - Held

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Compel (Responses to Form Interrogatories-General Set One, and Special Interrogatories, Set One) - Held

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Compel (For an Order Deeming the Request for Admission propounded to Plaintiff Aussie Mex, S.A. DE C.V., be Admitted) - Held

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Compel (Responses to Request for Production of Documents, Set One) - Held

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion for Order (Deeming the Requests for Admission Propounded to Plaintiff Panopus, PLC., be Admitted) - Held

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  • 12/04/2020
  • Docketat 08:30 AM in Department E, Curtis A. Kin, Presiding; Hearing on Motion to Compel (Responses to Form Interrogatories- General, Set One, and Special Interrogatories, Set One) - Held

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157 More Docket Entries
  • 10/24/2017
  • DocketMinute order entered: 2017-10-24 00:00:00; Filed by Clerk

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  • 08/29/2017
  • DocketRequest For Copies

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  • 08/24/2017
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 08/24/2017
  • DocketComplaint filed-Summons Issued

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  • 08/24/2017
  • DocketSummons; Filed by null

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  • 08/24/2017
  • DocketSummons Filed

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  • 08/24/2017
  • DocketNotice (of OSC)

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  • 08/24/2017
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 08/24/2017
  • DocketCivil Case Cover Sheet

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  • 08/24/2017
  • DocketNotice of Case Management Conference

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Tentative Rulings

Case Number: EC067111    Hearing Date: December 04, 2020    Dept: E

MOTIONS TO COMPEL DISCOVERY (4) AND TO DEEM MATTERS ADMITTED (2)

Date: 12/4/20 (8:30 AM)

Case: Panopus Plc et al. v. Philous, Inc. et al. (EC067111)

TENTATIVE RULING:

Defendant Seok Pil Hong’s UNOPPOSED (1) Motion to Compel Responses to Form Interrogatories-General, Set One, and Special Interrogatories, Set One from Plaintiff Panopus, PLC; (2) Motion to Compel Responses to Requests for Production of Documents, Set One from Plaintiff Panopus, PLC; (3) Motion for an Order Deeming the Requests for Admission be Admitted against Plaintiff Panopus, PLC; (4) Motion to Compel Responses to Form Interrogatories-General, Set One, and Special Interrogatories, Set One from Plaintiff Aussie Mex, S.A. de C.V.; (5) Motion to Compel Responses to Requests for Production of Documents, Set One from Plaintiff Aussie Mex, S.A. de C.V.; and (6) Motion for an Order Deeming the Requests for Admission be Admitted against Plaintiff Aussie Mex, S.A. de C.V. are GRANTED.

On February 11, 2020, defendant Seok Pil Hong served the first sets of Form Interrogatories-General, Special Interrogatories, Requests for Production of Documents, and Requests for Admission on plaintiffs Panopus, PLC and Aussie Mex, S.A. de C.V. (Park Decls. ¶ 2 & Exs. 1, 2.) The deadline to serve responses to the discovery was March 17, 2020. (CCP §§ 2030.260(a), 2031.260(a), 2033.250(a) [discovery responses due 30 days after service]; 1013(a) [five calendar days added for mailing).) Plaintiffs Panopus, PLC and Aussie Mex, S.A. de C.V. failed to respond to their respective discovery. (Park Decls. ¶ 3.) Accordingly, all objections are waived. (CCP §§ 2030.290(a); 2031.300(a); 2033.280(a).)

Pursuant to CCP §§ 2030.290(b) and 2031.300(b), the Motions to Compel Responses to Form Interrogatories-General, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One are GRANTED. Plaintiffs Panopus, PLC and Aussie Mex, S.A. de C.V. are ordered to serve written verified responses without objection to their respective first sets of Form Interrogatories, Special Interrogatories and Requests for Production of Documents and produce responsive documents to their respective Requests for Production of Documents within 15 days hereof.

As to the first sets of Requests for Admission, pursuant to CCP § 2033.280(b), the motions are GRANTED. The Court deems as admitted against plaintiffs Panopus, PLC and Aussie Mex, S.A. de C.V. the matters set forth in the respective Requests for Admissions served on them on February 11, 2020.

For failing to comply with their discovery obligations and thereby forcing defendant Seok Pil Hong to file these six (6) motions, the Court imposes monetary sanctions based on 5 hours of work (instead of the 27 hours claimed) at an hourly rate of $350.00, plus $369.90 in filing fees, for a total of $2,119.90. Such sanctions shall be split evenly between plaintiffs Panopus, PLC and Aussie Mex, S.A. de C.V., with each owing $1,059.95. Such sanctions are ordered to be paid to defendant Seok Pil Hong’s counsel of record within thirty (30) days hereof.

Case Number: EC067111    Hearing Date: November 13, 2020    Dept: E

MOTIONS TO COMPEL INITIAL RESPONSES TO DISCOVERY AND TO DEEM MATTERS ADMITTED (3)

Date: 11/13/20 (8:30 AM)

Case: Panopus Plc et al. v. Philous, Inc. et al. (EC067111)

TENTATIVE RULING:

Defendant Joseph Eum’s UNOPPOSED Motion to Compel Responses to Form Interrogatories-General, Set One, and Special Interrogatories, Set One; Motion to Compel Responses to Requests for Production of Documents, Set One; and Motion for an Order Deeming the Requests for Admission be Admitted are GRANTED.

On February 11, 2020, defendant Joseph Eum served the first sets of Form Interrogatories-General, Special Interrogatories, Requests for Production of Documents, and Requests for Admission on plaintiff Panopus, PLC. (Park Decls. ¶ 2 & Exs. 1, 2.) The deadline to serve responses to the discovery was March 17, 2020. (CCP §§ 2030.260(a), 2031.260(a), 2033.250(a) [discovery responses due 30 days after service]; 1013(a) [five calendar days added for mailing).) Plaintiff Panopus, PLC failed to respond to the discovery. (Park Decls. ¶ 3.) Accordingly, all objections are waived. (CCP §§2030.290(a); 2031.300(a).)

Pursuant to CCP §§ 2030.290(b) and 2031.300(b), the Motions to Compel Responses to Form Interrogatories-General, Set One; Special Interrogatories, Set One; and Requests for Production of Documents, Set One are GRANTED. Plaintiff Panopus, PLC is ordered to serve written verified responses without objection to the first sets of Form Interrogatories, Special Interrogatories and Requests for Production of Documents and produce responsive documents to the Requests for Production of Documents within 15 days hereof.

As to the first set of Requests for Admission, pursuant to CCP § 2033.280(b), the motion is GRANTED. The Court deems as admitted against plaintiff Panopus, PLC the matters set forth in the Requests for Admissions served on February 11, 2020.

For failing to comply with its discovery obligations and thereby forcing defendant Joseph Eum to file these three (3) motions, the Court imposes a total of $1,934.95 in monetary sanctions on plaintiff Panopus, PLC, based on 5 hours of work (instead of the 13.5 hours claimed) at an hourly rate of $350.00, plus $184.95 in filing fees. Monetary sanctions shall be paid to defendant Joseph Eum’s counsel of record within thirty (30) days hereof.

Case Number: EC067111    Hearing Date: September 18, 2020    Dept: E

DEMURRER

[CCP §430.10 et. seq.]

Date: 9/18/20 (10:00 AM)

Case: Panopus Plc et al. v. Philous, Inc. et al. (EC067111)

TENTATIVE RULING:

Defendants Seok Pil Hong and Joseph Eum’s Demurrer to the Second Amended Complaint is OVERRULED.

Defendants contend the third cause of action for Fraud relating to the cone crusher contract is defective due to the sham pleading doctrine. “‘[U]nder the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. [Citations omitted].’” (State ex rel. Metz v. CCC Info. Servs., Inc.) (2007) 149 Cal. App. 4th 402, 412.

Defendants argue that, in the original Complaint, plaintiff Aussie Mex, S.A. de C.V. (“Aussie”) does not allege that defendants Hong and Eum were officers of Groupo Minero Philous de Mexico (“Philous Mexico”). (Compl. ¶ 4.) Rather, the Complaint alleges that Philous Mexico was operated by Alfonso Sanchez Orozco. (Compl. ¶ 4.) Based on this, defendants contend Aussie has admitted only Orozco made the fraudulent promise to pay. But, in the original Complaint, plaintiff Aussie alleged that Hong, in addition to Orozco, promised Aussie on behalf of Philous Mexico that Philous Mexico would pay for the cone crusher and return the equipment upon termination of the rental agreement. (Compl. ¶ 29.) Thus, subsequent allegations that Hong made fraudulent representations to plaintiff Aussie on behalf of Philous Mexico do not constitute sham pleadings. Further, contrary to defendants’ contention (Demurrer at 7), Aussie has never previously admitted that Hong and Eum did not work for Philous Mexico. Hong and Eum could be officers of both Philous, as alleged throughout this action (Compl. ¶ 7; First Amended Complaint [“FAC”] ¶¶ 5, 6; Second Amended Complaint [“SAC”] ¶¶ 5, 6), and Philous Mexico, as is now alleged in the SAC (SAC ¶¶ 8, 9).

In the FAC, plaintiff Aussie alleges that Hong and Eum, individually and on behalf of Philous, Inc. (“Philous”) and Philous Mexico, promised to make payments for the cone crusher and return the equipment after termination of the rental agreement. (FAC ¶ 23.) In so alleging, the FAC omits any allegation that Orozco made such fraudulent representations to Aussie. (See FAC ¶ 23.) That omission hardly indicates plaintiff has engaged in sham pleading. To begin with, the omission of Orozco’s representations and the addition of Hong and Eum’s representations in the FAC are not inconsistent with the allegations in the original Complaint that Orozco made fraudulent representations. Indeed, with respect to the motion for judgment on the pleadings as to this cause of action in the original Complaint, the Court granted the motion with leave to amend because Hong’s fraudulent misrepresentations were not pled with sufficient specificity. (See 2/28/20 Minute Order.) Because the allegation concerning Orozco was not harmful to Aussie’s Fraud cause of action in the original Complaint, the Court does not view the omission of allegations concerning Orozco in the FAC as an effort to engage in sham pleading to avoid an attack on demurrer. With respect to Eum, Eum’s purported misrepresentations added to the FAC are not necessarily inconsistent with the original Complaint. Aussie never alleged that only Hong and Orozco made fraudulent representations and thus the addition of allegations relating to Eum is not inconsistent with the original Complaint.

In the SAC, plaintiff Aussie now adds the allegation that Hong and Eum are officers of Philous Mexico. (SAC ¶¶ 8-9.) Aussie maintains its allegation from the FAC that Hong and Eum falsely promised on behalf of Philous Mexico that it would pay for the cone crusher and return the equipment after termination of the rental agreement. Unlike the FAC, the SAC now alleges Hong and Eum’s authority to speak on behalf of Philous Mexico. (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.”].)

For the reasons stated above, defendants’ argument that the SAC is a sham pleading is not well taken.

Defendants also contend that plaintiff Aussie fails to set forth the fraud with the requisite specificity. Aussie alleges that to entice Aussie to enter into the cone crusher contract, Hong and Eum promised Aussie that its affiliate, Philous Mexico would promptly pay for the equipment, properly care for the same, and return the equipment upon termination of the rental agreement. (SAC ¶ 26.) Hong also allegedly represented to Aussie and Panopus that Philous needed the equipment to fulfill the iron ore contract. (SAC ¶ 26.) Aussie alleges that the representations were made to entice it to enter into the cone crusher contract, which was entered on December 18, 2013. ((SAC ¶ 26 & Ex. B.)

In the SAC, Aussie adds allegations regarding how (verbally over the phone and in person and in writing) and when the false promises were made (in the months leading up to the December 2013 cone crusher contract and from April to October 2014). (SAC ¶ 26.) Plaintiff Aussie does not expressly allege the individuals from Aussie to whom Hong and Eum spoke. However, the cone crusher contract was signed by Octavio Salvador Erquiaga on behalf of Aussie. (SAC & Ex. B.) Accordingly, it can be inferred that Hong and Eum made the alleged fraudulent promise to pay to Erquiaga. The allegations in the SAC are sufficient for pleading purposes.

The demurrer to the third cause of action is OVERRULED.

Case Number: EC067111    Hearing Date: June 26, 2020    Dept: E

DEMURRER

[CCP §430.10 et. seq.]

Date: 6/26/20 (2:00 p.m.)

Case: Panopus Plc et al. v. Philous, Inc. et al. (EC067111)

TENTATIVE RULING:

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]

Date: 2/28/20

Case: Panopus, PLC, et al. v. Philous, Inc., et al. (EC067111)

TENTATIVE RULING:

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.