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This case was last updated from Los Angeles County Superior Courts on 05/28/2019 at 00:10:07 (UTC).

VIVIAN S LEE VS DONG JIN KIM ET AL

Case Summary

On 02/24/2017 VIVIAN S LEE filed a Property - Other Property Fraud lawsuit against DONG JIN KIM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1687

  • Filing Date:

    02/24/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

LEE VIVIAN S.

Defendants and Respondents

CHANG MARIKO

KIM DONG JIN

STAR ELECTRIC CO

DJ CONSTRUCTION COMPANY

CHANG BERNARD MOOKWON

LEE CHIL SUNG

TORA CONSTRUCTION COMPANY

DOES 1 THROUGH 30

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

LEE VIVIAN S.

Defendant Attorneys

BARKIN STEVEN J. ESQ.

AROUSTAMIAN ARA

 

Court Documents

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

Minute Order

6/22/2018: Minute Order

DECLARATION OF NECESSITY PURSUANT TO CIV. CODE PROC. ? 2033.050 IN RE PLAINTIFF?S REQUESTS FOR ADMISSIONS TO DEFENDANT BERNARD MOOKOWN CHANG (SET ONE)

6/25/2018: DECLARATION OF NECESSITY PURSUANT TO CIV. CODE PROC. ? 2033.050 IN RE PLAINTIFF?S REQUESTS FOR ADMISSIONS TO DEFENDANT BERNARD MOOKOWN CHANG (SET ONE)

NOTICE OF RULING ON PLAINTIFF'S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS

6/25/2018: NOTICE OF RULING ON PLAINTIFF'S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS

PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

9/11/2018: PROOF OF SERVICE BY FIRST-CLASS MAIL?CIVIL

NOTICE OF RULING ON PLAINTIFF'S (1) MOTION TO COMPEL RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES TO DEFENDANT CHIL SUNG LEE, SET ONE, AND FOR MONETARY SANCTIONS, AND ETC

9/11/2018: NOTICE OF RULING ON PLAINTIFF'S (1) MOTION TO COMPEL RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES TO DEFENDANT CHIL SUNG LEE, SET ONE, AND FOR MONETARY SANCTIONS, AND ETC

Declaration

10/26/2018: Declaration

Request for Judicial Notice

10/26/2018: Request for Judicial Notice

Motion for Summary Judgment

10/26/2018: Motion for Summary Judgment

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

1/11/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Proof of Service by Mail

1/17/2019: Proof of Service by Mail

Notice of Ruling

1/17/2019: Notice of Ruling

Notice

2/13/2019: Notice

PROOF OF SERVICE OF SUMMONS

5/18/2017: PROOF OF SERVICE OF SUMMONS

REQUEST FOR ENTRY OF DEFAULT

5/18/2017: REQUEST FOR ENTRY OF DEFAULT

PROOF OF SERVICE OF SUMMONS

5/18/2017: PROOF OF SERVICE OF SUMMONS

NOTICE RE CONTINUED CASE MANAGEMENT CONFERENCE

6/6/2017: NOTICE RE CONTINUED CASE MANAGEMENT CONFERENCE

NOTICE RE CASE MANAGEMENT CONFERENCE ORDER

8/15/2017: NOTICE RE CASE MANAGEMENT CONFERENCE ORDER

79 More Documents Available

 

Docket Entries

  • 04/18/2019
  • Motion re: (TO REOPEN DISCOVERY); Filed by Mariko Chang (Defendant); Bernard Mookwon Chang (Defendant)

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  • 04/11/2019
  • at 08:30 AM in Department 37; Order to Show Cause Re: (re final judmgment and/or the filing of a motion for judgment on the pleadings) - Held

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  • 04/11/2019
  • Minute Order ( (Order to Show Cause Re: re final judmgment and/or the filing ...)); Filed by Clerk

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  • 04/10/2019
  • Motion re: (TO BE RELIEVED FROM DEEMED ADMISSIONS); Filed by Dong Jin Kim (Defendant); DJ Construction Company (Legacy Party); Chil Sung Lee (Defendant) et al.

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  • 03/05/2019
  • at 10:00 AM in Department 37; Jury Trial - Not Held - Advanced and Vacated

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  • 03/04/2019
  • Order re Plaintiff's Motion for Summary Judgment, or in the alternative, Summary Adjudication of Issues; Filed by Vivian S. Lee (Petitioner)

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  • 02/25/2019
  • at 08:34 AM in Department 37; Final Status Conference - Not Held - Advanced and Vacated

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  • 02/22/2019
  • Substitution of Attorney; Filed by Mariko Chang (Defendant); Bernard Mookwon Chang (Defendant)

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  • 02/22/2019
  • Substitution of Attorney; Filed by Mariko Chang (Defendant); Bernard Mookwon Chang (Defendant)

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  • 02/13/2019
  • Notice of Case Reassignment; Filed by Vivian S. Lee (Petitioner)

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144 More Docket Entries
  • 05/01/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 05/01/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 05/01/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 05/01/2017
  • OSC-RE Other (Miscellaneous); Filed by Clerk

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  • 04/21/2017
  • PROOF OF SERVICE OF SUMMONS & COMPLAINT

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  • 04/21/2017
  • Proof-Service/Summons; Filed by Vivian S. Lee (Petitioner)

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  • 02/27/2017
  • SUMMONS

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  • 02/27/2017
  • Summons; Filed by Vivian S. Lee (Petitioner)

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  • 02/24/2017
  • COMPLAINT FOR: 1. DISGORGEMENT OF COMPENSATION PAID TO UNLICENSED CONTRACTOR (CAL. BUS. & PROF. CODE 7031(B)); ETC

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  • 02/24/2017
  • Complaint; Filed by null

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Tentative Rulings

Case Number: BC651687    Hearing Date: August 10, 2020    Dept: 37

HEARING DATE: August 10, 2020

CASE NUMBER: BC651687

CASE NAME: Vivian S. Lee v. Dong Jin Kim, et al.

TRIAL DATE: None

PROOF OF SERVICE: OK

PROCEEDING: Plaintiff’s Motion for Leave to File First Amended Complaint

MOVING PARTIES: Plaintiff Vivian S. Lee

OPPOSING PARTY: Defendant, Chil Sung Lee

OPPOSITION: April 21, 2020

REPLY: July 28, 2020

TENTATIVE: Plaintiff’s motion for leave to amend is DENIED. Lee is to give notice

PROCEEDING: Defendant’s Motion for Judgment on the Pleadings

MOVING PARTIES: Plaintiff Vivian S. Lee

OPPOSING PARTY: Defendant, Chil Sung Lee

OPPOSITION: July 28, 2020

REPLY: July 30, 2020

TENTATIVE: Lee’s motion is GRANTED as to Plaintiff’s sixth cause of action for violation of Business and Professions Code section 7114. Lee is to give notice.

 

Background

This action arises from allegations that Defendants Dong Jin Kim (“Kim,” d/b/a DJ Construction Company) and Chil Sung Lee (d/b/a Star Electric Co.) performed sub-standard work in repairing and renovating a duplex purchased by Plaintiff Vivian S. Lee (“Vivian Lee”). Plaintiff alleges that Defendants Kim and Lee abandoned the work after she paid more than $78,000 to both Kim and Chil Sung Lee. According to Plaintiff, it was only after she made payment that she discovered that Kim was an unlicensed contractor who obtained building permits using the name and license number of Tora Construction Company, which is allegedly owned by Defendant Mariko Chang and run by Defendant Bernard Mookwon Chang (“Bernard Chang”). The Complaint further alleges that Defendant Kim has been fraudulently advertising his services despite having his California general contractor’s license revoked.

Plaintiff’s Complaint, filed February 24, 2017 alleges the following causes of action: (1) violation of Business and Professions Code § 7031(b) against Kim, (2) fraudulent inducement, concealment and misrepresentation against Kim (Business and Professions Code § 7160), (3) breach of oral contract against Kim, (4) breach of oral contract against Lee, (5) negligence against Kim and Lee, (6) violation of Business and Professions Code § 7114 against Lee, Mariko Chang and Bernard Chang.

On January 11, 2019, the court granted Plaintiff’s motion for summary judgment as to the first, second, third, fourth and fifth causes of action. The motion was denied as to Plaintiff’s sixth cause of action. Further, the court ruled that Plaintiff’s recoverable damages against Kim and Lee are $153,931.51.

On September 6, 2019, the court denied Plaintiff’s motion for judgment on the pleadings as to the remaining sixth cause of action. Specifically, the court noted that because a cause of action for violation of Business and Professions Code section 7114 required application to the registrar and because Plaintiff has not presented evidence that she has made any such application, the motion for judgment on the pleadings must be denied.

Plaintiff now moves for leave to file a First Amended Complaint (“FAC”). Defendant Lee opposes the motion. Lee moves for judgment on the pleading as to Plaintiff’s cause of action for violation of Business and Professions Code § 7114. Plaintiff opposes the motion.

MOTION FOR LEAVE TO AMEND

Discussion

  1. Legal Standard

California law holds that leave to amend is to be granted liberally, to accomplish substantial justice for both parties. (Code Civ. Proc., § 473, subd. (a); Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-489.) “Assuming proper notice, the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment.

The law is well settled that a long-deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment.” (Leader v. Health Ind. of America, Inc. (2001) 89 Cal.App.4th 603, 613.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.) “The power to permit amendments is interpreted very liberally as long as the plaintiff does not attempt to state facts which give rise to a wholly distinct and different legal obligation against the defendant.” (Herrera v. Superior Court (1984) 158 Cal.App.3d 255, 259.) The court, however, has the discretion to deny an amendment that fails to state a cause of action or defense. (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230 (Foxborough).)

  1. Analysis

  1. Procedural Considerations

A party requesting leave to amend must comply with California Rules of Court, rule 3.1324. A motion to amend a pleading before trial must state which allegations were deleted from and which allegations were added to the previous pleading and identify the changes “by page, paragraph, and line number.” (Cal. Rules of Court, rule 3.1324(a).)

Additionally, “[a] separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (Cal. Rules of Court, rule 3.1324(b).)

Plaintiff seeks leave to file a FAC which changes the following: (1) strikes allegations with regard to Defendant Mariko Chang d/b/a Tora Construction Company and Defendant Bernard Chang as a result of dismissal of these two parties; (2) add new legal theory for recovery (conspiracy to commit fraud in the Second Cause of Action) against Defendant Lee based on facts already plead in the Sixth Cause of Action; (3) add to Plaintiff’s prayer based on the newly proposed legal theory for common law conspiracy against Lee, and (4) add Plaintiff’s verification to the proposed Amended Complaint. (see Notice of Motion, 2.)

Plaintiff, a self-represented litigant, submits her own declaration in support of the instant motion. Plaintiff also submits a red-line copy of the Complaint. (Plaintiff Decl. ¶ 5, Exhibits 1-2.) Plaintiff attests that the proposed amended complaint adds the above described changes. (Plaintiff Decl. ¶ 2.) Further, with regard to the new legal theory against Lee, Plaintiff alleges that she was previously “unaware of the deficiency” of the original Complaint’s legal theory until the September 2019 hearing on Plaintiff’s motion for judgment on the pleadings. (Plaintiff Decl. ¶ 3.) Plaintiff further alleges that “after researching and examining this legal theory further during the past months,” she now seeks to add this legal theory against Lee “in the interests of justice and for judicial efficiency.” (Id.)

Plaintiff’s Declaration and the proposed amended complaint are sufficient to meet the procedural requirements of rule 3.1324(b). The court now turns to the substantive merits of the motion.

  1. Substantive Considerations 

    Generally, motions for leave to amend will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the court and the delay in seeking leave to amend will cause prejudice to the opposing party.  (See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 [“ ‘[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.’ [Citations.]  Furthermore, ‘it is irrelevant that new legal theories are introduced as long as the proposed amendments “relate to the same general set of facts.” [Citation.]’ ”]; Hirsasupra, 118 Cal.App.3d at p. 490.)  Indeed, “courts are much more critical of proposed amendments ... when offered after long unexplained delay or on the eve of trial [citations], or where there is a lack of diligence, or there is prejudice to the other party [citations].”  (Permalab-Metalab Equipment Corp. v. Maryland Cas. Co. (1972) 25 Cal.App.3d 465, 472.)  

    Plaintiff contends that leave to amend should be granted because Defendants would not be prejudiced by the proposed amendments as the proposed amendments merely add new “legal theories” of recovery onto facts already alleged in the original Complaint and presented in Plaintiff’s MSJ. (Motion, 7-10.) Plaintiff contends that this is the case because the court has already ruled in her favor on the first through fifth causes of action in the MSJ and because “at its core,” the sixth cause of action was already a claim for conspiracy against Lee. (Id.) Plaintiff also contends that the motion was timely because it was made “mere months” after she realized the deficiency in the sixth cause of action.

    In opposition, Lee contends that Plaintiff’s motion should be denied because (1) Plaintiff fails to show any newly discovered facts or evidence to warrant the instant motion, (2) essential parties to any conspiracy action against Lee have already been dismissed, and (3) Plaintiff’s motion is untimely, such that granting it will prejudice Lee. (Opposition, 6-7, 10-12.)

    In reply, Plaintiff contends that no newly discovered facts or evidence were required as the proposed amendments relate to facts already contained in the Complaint and merely add a new legal theory. (Reply, 2-4.) Plaintiff also contends that the motion is not untimely because no trial date has been set and that as such, Lee also cannot argue that he would be prejudiced by any amendment. (Reply, 6-9.)

    It is undisputed that trial has not been set in this matter.

    The court finds that Plaintiff’s motion is untimely and improper. Plaintiff has offered no explanation for why the proposed motion was brought over a year after the court’s ruling on Plaintiff’s MSJ and over three years since the inception of this case. Here, the Complaint’s second cause of action alleges facts against Kim in connection with Kim’s alleged misrepresentation regarding his status as a licensed contractor. Further, the Complaint already includes the following allegation with regard to the second cause of action: “unbeknownst to Plaintiff, Defendant Lee, Defendant Mariko Chang, and Defendant Bernard Chang colluded with Defendant Kim to allow Defendant Kim to obtain the requisite building permits using Tora Construction Company's License.” (Complaint, ¶ 62.) The sixth cause of action also already includes facts that Defendant Lee and the Chang defendants had knowledge of Kim’s fraudulent actions. (Complaint, ¶ 80.) As such, these allegations demonstrate that Plaintiff knew of Lee’s alleged involvement in Kim’s actions. Moreover, summary adjudication has already been granted on the second cause of action, so it is no longer in issue. As such, Plaintiff should not try to amend that cause of action. Although no trial has been set in this matter, Plaintiff’s motion fails to demonstrate why waiting months after the MSJ hearing the court should allow amendment of a cause of action that has already been decided.

    For these reasons, Plaintiff’s motion is DENIED.

    Conclusion

Plaintiff’s motion for leave to amend is DENIED. Lee is to give notice.

MOTION FOR JUDGMENT ON THE PLEADINGS

Defendant Lee moves for judgment on the pleadings as to the Complaint’s sixth cause of action.

Discussion

A defendant may move for judgment on the pleadings if the complaint does not state facts sufficient to constitute a cause of action against the defendant. (Code Civ. Proc., § 438, subds. (b)(1) & (c)(1)(B)(ii).) Except as provided by statute, the rules governing demurrers govern motions for judgment on the pleadings. (Cloud v. Northrup Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Therefore, the grounds for a motion for judgment on the pleadings must be apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Ibid.) The court accepts the truth of all material facts properly pleaded, but not the truth of “contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

As with demurrers, “[d]enial of leave to amend after granting a motion for judgment on the pleadings is reviewed for abuse of discretion.” (Ott v. Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1448.) “It is an abuse of discretion to deny a party leave to amend a complaint if there is a reasonable possibility the pleading can be cured by amendment.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 444.)

As of January 1, 2018, a party filing a MJOP must meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion, identifying all of the specific allegations that it believes are subject to be stricken and, with legal support, the basis of the deficiencies.  (Code Civ. Proc., § 439, subd. (a)(1).)  “The parties shall meet and confer at least five days before the date a motion for judgment on the pleadings is filed.  If the parties are unable to meet and confer by that time, the moving party shall be granted an automatic 30-day extension of time within which to file a motion for judgment on the pleadings, by filing and serving, on or before the date a motion for judgment on the pleadings must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.”  (Code Civ. Proc., § 439, subd. (a)(2).)  

  1. Analysis

Pursuant to Business and Professions Code, section 7114: 

(a) Aiding or abetting an unlicensed person to evade the provisions of this chapter or combining or conspiring with an unlicensed person, or allowing one’s license to be used by an unlicensed person, or acting as agent or partner or associate, or otherwise, of an unlicensed person with the intent to evade the provisions of this chapter constitutes a cause for disciplinary action. 

(b) A licensee who is found by the registrar to have violated subdivision (a) shall, in accordance with the provisions of this article, be subject to the registrar’s authority to order payment of a specified sum to an injured party, including, but not limited to, payment for any injury resulting from the acts of the unlicensed person. 

(Bus. & Prof. Code, § 7114.)   

Business and Professions Code, section 7114, subdivision (b), on its face, grants the registrar authority to discipline a licensee or to order the licensee to pay sums.  (Bus. & Prof. Code, § 7114subd. (b); see also West Coast Home Improv. Co. v. Contractor’s State License Board (1945) 72 Cal.App.2d 287.)

Lee contends that judgment on the pleadings is warranted because Plaintiff’s sixth cause of action is not an actionable claim. (Motion, 8-9.) Specifically, Lee contends that Plaintiff’s Complaint completely fails to demonstrate that Plaintiff has made a Complaint to the Registrar and that, further, the court previously denied Plaintiff’s MSJ because Plaintiff failed to demonstrate that she has made a complaint to the Registrar. (Id.) As discussed above, the court previously denied Plaintiff’s MSJ with regard to the sixth cause of action because Plaintiff has presented no evidence that the Registrar has found against any of the defendants or that Plaintiff made any complaint to the Registrar. (see January 11, 2019 Ruling on Plaintiff’s MSJ.)

In opposition, Plaintiff first contends that Lee’s motion must be denied because Lee has failed to sufficiently meet and confer or file a meet and confer declaration concurrent with his motion. (Opposition, 4-5.) Plaintiff also contends that Lee’s motion must be denied because Lee has failed to demonstrate that a ruling by the Registrar is a required element of a Business and Professions Code section 7114 claim. (Opposition, 5-7.) Plaintiff further contends that granting Lee’s motion would be a miscarriage of justice because Lee has failed to participate in this action previously and did not oppose Plaintiff’s MSJ.

In reply, Lee contends that meet and confer efforts did take place and that regardless, failure to meet and confer is not grounds for the court to deny the instant motion. (Reply, 1-2.) The court agrees that failure to meet and confer is not grounds to deny the motion. Because the parties have fully briefed the motion on its merits, the court will exercise its discretion and rule on the motion.

The court agrees with Lee that judgment on the pleadings is warranted because Plaintiff has not alleged that she made any application to the Registrar. On its face, Business and Professions Code section 7114 requires an application to the Registrar regarding Defendants’ allegedly unlawful conduct. As the court found on January 2019 in connection with Plaintiff’s MSJ and again in September 2019 in connection with Plaintiff’s motion for judgment on the pleadings, Plaintiff has not made such an application. Accordingly, judgment on the pleadings is warranted with regard to Plaintiff’s sixth cause of action against Lee.

Conclusion

Lee’s motion is GRANTED as to Plaintiff’s sixth cause of action for violation of Business and Professions Code section 7114. Plaintiff is granted 20 days leave to amend the sixth cause of action. Lee is to give notice.

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