WAN-LUNG LIAO VS TRANSPACIFIC FINANCIAL, INC.

Tentative Rulings

Case Number: *******0853 Hearing Date: April 14, 2022 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: April 14, 2022 TRIAL DATE: November 29, 2022

CASE: WAN-LUNG LIAO v. TRANSPACIFIC FINANCIAL, INC. and DOES 1 through 100, inclusive.

CASE NO.: *******0853

MOTION TO COMPEL DISCOVERY

MOVING PARTY: Defendant Transpacific Financial, Inc.

RESPONDING PARTY: Plaintiff Wan-Lung Liao

SERVICE: Filed March 16, 2022

OPPOSITION: Filed April 1, 2022

REPLY: Filed April 7, 2022

RELIEF REQUESTED

Defendant moves for an order compelling a response to its special interrogatories, form interrogatories, and requests for production.

BACKGROUND

This case arises out of Plaintiff Wan-Lung Liao’s (“Plaintiff”) claim that Defendant Transpacific Financial, Inc. (“Defendant”), a business that offers life insurance policies, induced Plaintiff to purchase complicated and expensive life insurance policies without explaining or translating the policies to Plaintiff. Plaintiff alleges that he has paid more than $4,000,000 in premiums. Plaintiff filed the instant complaint on June 17, 2021, alleging two causes of action for (1) negligence and (2) breach of fiduciary duty.

TENTATIVE RULING

Defendant’s motions to compel a response are DENIED.

Defendant’s request for sanctions is DENIED.

Defendant is ordered to pay sanctions in the amount of $1.

LEGAL STANDARD

A party making a discovery request may move for an order compelling a response if the party to whom the requests were made fails to serve a timely response, including for special interrogatories (Code Civ. Proc. section 2030.290, subd. (b)) and requests for production (Code Civ. Proc. section 2031.300, subd (b)). A party must serve a response within 30 days after service of a discovery request. (Code Civ. Proc. sections 2030.260, subd, (a) and 2031.260, subd.(a).)

DISCUSSION

Defendant provides that it propounded its first set of discovery requests, including form interrogatories, special interrogatories, and requests for production of documents on December 7, 2021. (Lin Decl. 2.) Defendant states that it provided Plaintiff with two extensions to provide responses. (Id. 3-4.) Defendant states that a few days after January 21, 2022, Plaintiff sent responses to Defendant consisting of only objections, no responses, and no verification by Plaintiff. (Id. 6, Exhibit D.)

Defendant characterizes these present motions as motions to compel a response rather than motions to compel further responses. To do so, Defendant relies on Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.Ap.3d 907, and Appleton v. Superior Court (1988) 206 Cal.App.3d 632, for its position that Plaintiff’s objections constitute no response at all. Defendant’s reliance is unavailing.

Most significantly, the cases Defendant cites analyze older versions of the discovery statutes. “The party to whom the interrogatories are directed shall sign the response under oath unless the response contains only objections.” (Code Civ. Proc. section 2030.250, subd. (a).) The same applies to a party responding to requests for productions. (Code Civ. Proc. section 2031.250, subd. (a).) “The attorney for the responding party shall sign any responses that contain an objection.” (Code Civ. Proc. Section 2030.250, subd. (c).)

Here, under the statutory scheme, Plaintiff’s responses, which consisted solely of objections, did not need to be signed under oath by Plaintiff. Thus, Defendant’s motion is more properly characterized as a motion to compel further responses. Under California Rules of Court Rule 3.1345, subdivision (a), motions to compel further responses require a separate statement, which was not attached to any of the present motions.

Defendant requests that, if a separate statement is required, the present motions be considered an outline pursuant to California Rules of Court Rule 3.1345, subdivision (b), which provides that a court may allow the “moving party to submit in place of a separate statement-a concise outline of the discovery request and each response in dispute.” The Court rejects Defendant’s request. Defendant’s motions lack any discussion of the individual response in dispute but rather characterize Plaintiff’s objection as a failure to respond at all.

Lastly, the Court notes that Plaintiff’s proof of service attached to his objections is not signed. However, Code of Civil Procedure section 1013, subdivision (b), provides that papers serviced by mail pursuant to this chapter “shall bear a notation of the date and place of mailing”. The proofs of service attached to Plaintiff’s objections, while not signed, note the date of service as January 21, 2022, and the place of mailing as Defendant’s counsel’s office. (Lin Decl. 6, Exhibit D.)

Code of Civil Procedure sections 2030.290, subdivision (c), and 2031.300, subdivision (c), provide that a court shall impose sanctions against a party unsuccessfully making or opposing a motion to compel. Defendant has made unsuccessfully made motions to compel a response. Plaintiff, however, neither requested nor provided any basis for calculating sanctions. Defendant is ordered to pay sanctions in the amount of $1.

CONCLUSION

Defendant’s motions to compel a response are denied.

Defendant’s request for sanctions is denied.

Defendant is ordered to pay sanctions in the amount of $1.

Dated: April 14, 2022

Joel L. Lofton

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit. Parties intending to appear are strongly encouraged to appear remotely.

Case Number: *******0853 Hearing Date: February 22, 2022 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: February 22, 2022 TRIAL DATE: November 29, 2022

CASE: WAN-LUNG LIAO v. TRANSPACIFIC FINANCIAL, INC. and DOES 1 through 100, inclusive.

CASE NO.: *******0853

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY: Defendant Transpacific Financial, Inc.

RESPONDING PARTY: Plaintiff Wan-Lung Liao

SERVICE: Filed October 12, 2021

OPPOSITION: Filed November 23, 2021

REPLY: December 1, 2021

RELIEF REQUESTED

Defendant demurrers to each cause of action in Plaintiff’s claim and moves to strike portions of the complaint relating to attorney’s fees.

BACKGROUND

This case arises out of Plaintiff Wan-Lung Liao’s (“Plaintiff”) claim that Defendant Transpacific Financial, Inc. (“Defendant”), a business that offers life insurance policies, induced Plaintiff to purchase complicated and expensive life insurance policies without explaining or translating the policies to Plaintiff. Plaintiff alleges that he has paid more than $4,000,000 in premiums. Plaintiff filed the instant complaint on June 17, 2021, alleging two causes of action for (1) negligence and (2) breach of fiduciary duty.

TENTATIVE RULING

Defendant’s demurrer to Plaintiff’s first and second causes of action is OVERRULED.

Defendant’s motion to strike Plaintiff’s request for attorney’s fees is GRANTED.

LEGAL STANDARD

Demurrer

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code of Civ. Proc. 430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc. section 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (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 v. Mirda, supra, 147 Cal.App.4th 740, 747.)

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike a pleading or any part thereof. (Code Civ. Proc., 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., 437.)

DISCUSSION

Meet and Confer

Defendant submits two declarations from counsel Monica H. Lin, separately addressing the demurrer and the motion to strike. Counsel provides that she met and conferred with Plaintiff’s counsel via telephone and email prior to seeking relief from the court for each motion but that the parties could not reach an agreement. (Demurrer Lin Decl. 1-4; Mot. Lin Decl. 1-5.) Defendant has complied with the applicable meet and refer requirements of Code of Civil Procedure sections 430.41 and 435.5.

I. FIRST CAUSE OF ACTION FOR NEGLIGENCE

“The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.)

A. Duty

Defendant first argues that Plaintiff has failed to allege the existence of a legal duty because Plaintiff’s allegations are conclusory allegations.

“California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) “Courts have, however, made exceptions to this general rule based on public policy considerations.” (Erikkson v. Nunnink (2011) 191 Cal.App.4th 826, 836.)

In its Demurrer, Defendant does not raise any exception to the general rule for the existence of a duty Defendant owed Plaintiff. Instead, Defendant relies heavily on Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1468 (“Cansino”), to argue that Plaintiff’s allegations are deficient as conclusory contentions. Defendant’s reliance is misplaced. Cansino dealt with allegations relating to fraud, which “ ‘involve a serious attack on character’ and therefore are pleaded with specificity.” (Id. at p. 1469.) Defendant does not establish how Cansino applies to the case at hand.

Additionally, Plaintiff alleges that Defendant provided life insurance advice and counseling to help Plaintiff determine which life insurance policy to purchase. (Complaint 4.) Plaintiff alleges that he relied on Defendant’s experience in deciding which policy to purchase and that Defendant could receive a commission based on Plaintiff’s decision. (Ibid.) Plaintiff has sufficiently alleged that Defendant owed Plaintiff a duty while acting as an advisor and intermediary for the purchase of a life insurance policy.

B. Breach

Defendant next argues that Plaintiff fails to properly allege any breach by Defendant. Specifically, Defendant argues that it did not breach when it provided Plaintiff with a policy in English with no translation because it was Plaintiff’s duty to read and understand the policy.

Both cases cited by Plaintiff, Ramos v. Westlake Services, LLC (2015) 242 Cal.App.4th 674, 687, and the subsequent case Caballero v. Premier Care Simi Valley LLC (2021) 69 Cal.App.5th 512, 519, involved whether an arbitration clause included in a contract was enforceable. These cases are not relevant here.

Plaintiff alleges that Defendant knew that Plaintiff did not speak English and that Plaintiff relied on Defendant’s advice in choosing a life insurance policy. (Complaint 6.) Plaintiff further alleges that Defendant failed to provide a translation of the policy that was presented in English. (Ibid.) Plaintiff alleges that Defendant failed to explain the policies it was recommending. (Ibid.) Plaintiff also alleges that the policies recommended were not suitable for Plaintiff. (Id. 7.) Plaintiff has sufficiently alleged that Defendant breached its duty in its conduct towards Plaintiff.

C. Causation and Injury

The complaint alleges that because of Defendant’s actions, Plaintiff purchased an expensive, complicated, and unsuitable insurance policy. Plaintiff alleges that he paid over $4,000,000 in premiums. (Complaint 6.) Plaintiff has sufficiently alleged causation and damages to state a claim for negligence. (Id. 7.)

Defendant’s demurrer as to the first cause of action for negligence is overruled.

III. DUPLICATIVE CAUSES OF ACTION

Defendant further argues Plaintiff’s second cause of action is subject to demurrer on grounds that it is duplicative of the first cause of action negligence. Defendant references several authorities that, in the Court’s own review, are not directly on point to addressing the issue. The Court has found a split in authority governing this issue.

In Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 898-90, the Court held that a duplicative cause of action was not grounds for demurrer. However, in Palm Springs Villas II Homeowners Assn., Inc. v. Parth, the Court held that it has recognized a party could demurrer to a cause of action for being duplicative to another cause of action. ((2016) 248 Cal.App.4th 268, 290; see also Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 [holding demurrer should have been sustained to a duplicative cause of action].)

Here, Plaintiff’s allegations as they relate to a breach of fiduciary duty are the same as the allegations involving his negligence claim. Plaintiff relies on the same act or omission by Defendant in both causes of action. (Complaint 10 and 16.) The facts underlying both claims are identical. Plaintiff’s causes of action are duplicative, and the second cause of action adds nothing to the complaint by way of fact or theory of recovery. However, as the court in Blickman Turkus, LP points out, being duplicative is not currently a proper ground to sustain a demurrer. See Code Civ. Proc., 430.10.) Therefore, Defendant’s demurrer to Plaintiff’s second cause of action for breach of fiduciary duty is respectfully overruled.

Motion to Strike

Defendant further argues that Plaintiff’s request for attorney’s fees should be stricken. Plaintiff does not oppose that a prayer for attorney’s fees is improper here but rather asserts that he submitted a notice of withdrawal. The Court notes that the notice of withdrawal of the specific line was submitted after Defendant’s motion to strike was filed.

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc. Section 1021.) “Under the American Rule, each party to a lawsuit ordinarily pays its own attorney fees.” (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 752.)

California Rules of Court Rule 3.1324, subsection (d), provides that “[a]n amendment to a pleading must not be made by alterations on the face of a pleading except by permission of the court. All alterations must be initialed by the court or the clerk.”

Here, Plaintiff does not seek permission from the Court to amend the face of the pleading or present an alteration initialed by the court or the clerk. Thus, Plaintiff’s proposed amendment is procedurally defective. Additionally, as previously stated, Plaintiff does not contest that prayer for attorney’s fees is inappropriate here.

Therefore, Defendant’s motion to strike Plaintiff’s request for attorney’s fees is granted.

CONCLUSION

Defendant’s demurrer to Plaintiff’s first and second causes of action is overruled.

Defendant’s motion to strike Plaintiff’s request for attorney’s fees is granted.

Dated: February 22, 2022

Joel L. Lofton

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit. Parties intending to appear are strongly encouraged to appear remotely.