SHENZHEN REMEX FURNITURE INDUSTRIAL CO VS LIQUN JIA

Tentative Rulings

Case Number: KC070074    Hearing Date: November 26, 2019    Dept: O

After hearing, Defendant LiQun Jia’s demurrer to the third amended complaint is SUSTAINED with 10 days leave to amend.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at 747.)

Defendant LiQun Jia (“Defendant”) demurs to all the causes of action in the Third Amended Complaint (“TAC”) on the grounds that they fail to state facts sufficient to constitute any cause of action.

Recognition of Foreign Money Judgment (1^st Cause of Action)

Defendant contends that this cause of action is defective because Plaintiff Shenzhen Remex Furniture Industrial Co. Ltd. (“Plaintiff”) has failed to allege sufficient facts to support this cause of action.

Under Hilton v. Guyot (1895) 159 U.S. 113, a foreign judgment can only be recognized under the laws of this country if it satisfies the following conditions:

• There has been an opportunity for a full and fair trail abroad before a court of competent jurisdiction, the foreign court conducted the trial upon regular proceedings,

• The judgment was rendered after due citation or voluntary appearance of the defendant,

• The foreign court is under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other counts,

• There is nothing to show either prejudice in the court or in the system of laws under which it was sitting,

• There is nothing to show fraud in procuring the judgment or any other special reasons why the comity of this nation should not allow it full effect.

Specifically, under Code of Civil Procedure section 1715(c), “[a] party seeking recognition of a foreign-country judgment has the burden of establishing that the foreign-country judgment is entitled to recognition under this chapter.”

The TAC is void of any factual allegations that demonstrate the judgment alleged is entitled to recognition in this Court. The only allegation it makes is that the alleged judgment “has become final,” and has not been “vacated, modified, stayed, or set aside, and the time for appeal has expired.” (TAC, ¶ 4.) The Court also agrees with Defendant in that it has concerns about the numerous discrepancies in the TAC that Defendant has pointed out in his Opposition, particularly that the translation was not certified under oath by a qualified interpreter pursuant to California Rule of Court 3.1110(g), but rather by a project manager who hired a contractor to do the translation. These discrepancies indicate to the Court that the judgment may not be valid for this court to enforce.

Thus, demurrer to this cause of action is SUSTAINED.

Open Book Account (2^nd Cause of Action)

Open book account is a form of common counts cause of action. The elements are: (1) A detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation; (2) that shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made; (3) entered in the regular course of business as conducted by such creditor or fiduciary; and, (4) kept in a reasonably permanent form and manner; (5) in a bound book, on a sheet or sheets fastened in a book or to backing but detachable therefrom, on a card or cards of a permanent character, or is kept in any other reasonably permanent form and manner. (CCP § 337a; Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal. App. 4th 1334, 1343.)

Plaintiff alleged that within the last four years, Defendant became indebted to Plaintiff for goods provided and for which Defendant promised to pay Plaintiff. (TAC, ¶ 8.) Plaintiff also alleged that it maintained an account of the debits and credits involved in the transaction at issue in this instant litigation. (TAC, ¶ 11.) However, Plaintiff failed to state how this record was maintained and failed to allege facts showing that this record was kept in a reasonable permanent form and manner.

Thus, the demurrer to this cause of action is SUSTAINED.

Account Stated (3^rd Cause of Action)

Like an open book account, account stated is a form of common counts cause of action. The elements are: (1) An account statement of indebtedness between the parties; (2) The balance or sum due; (3) The time of the statement; (4) The place of the statement; and (5) The debt was found, or the debtor expressly or impliedly promised to pay the amount. (See Tringali v. Vest (1951) 106 Cal.App.2d 720, 721; also see Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 725 (“‘it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.’”).)

Plaintiff alleges this cause of action as an alternative to open book account, alleging that Defendant became indebted to Plaintiff because “an account was stated by and between Plaintiff and Defendant(s) in which it was agreed that Defendant was indebted to Plaintiff for goods.” (TAC ¶ 13.) Again, Plaintiff has not sufficiently pled facts showing the elements for an account stated cause of action.

Thus, the demurrer to this cause of action is SUSTAINED.

Leave to Amend

Generally, leave to amend will only be granted if a plaintiff meets a burden of showing that it is reasonably possible to correct the defects by amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 347.) Contrary to Defendant’s contention that any attempt to amend the pleading would be futile, at the hearing the Court invited Plaintiff’s counsel to amend the pleading consistent with its order. The Court will grant the Plaintiff leave to amend one last time to plead additional facts that demonstrate that this case should move forward.

Therefore, Defendant’s demurrer to Plaintiff’s TAC is SUSTAINED WITH LEAVE TO AMEND. Plaintiff has 10 days to file an amended complaint.