Case Name: Hsieh, et al. v. Lin, et al.
Case No.: 1-16-CV-296278

On February 5, 2003, plaintiffs Sherry Hsieh and Yeao-Nan Hsieh (collectively, “Plaintiffs”) loaned $56,000 to defendants Patrick Lin (“Patrick”) and Rosa Lin (“Rosa”) with compound interest at the rate of 10% per annum. (See complaint, ¶ 4.) In August 2004, Patrick and Rosa agreed to lease a residence in Saratoga from Plaintiffs for $2,200 per month, plus 6% interest for any unpaid rent. (See complaint, ¶ 10.) On October 20, 2004, Patrick and Rosa permanently left California to Taiwan without notifying Plaintiffs, owing $6000 in rent plus interest. (See complaint, ¶¶ 11, 13.) The absence of Patrick and Rosa Lin from the State of California allegedly tolled the statute of limitations pursuant to Code of Civil Procedure § 351. (See complaint, ¶¶ 7, 18, 27, 35.)

On December 1, 2004, Patrick and Rosa’s son, Jemmy Lin (“Jemmy”), agreed to take over his parents’ lease. (See complaint, ¶ 12.) Jemmy’s lease was from December 1, 2004 to June 30, 2013; however, Jemmy made only partial payments of rent such that he now owes $159,200 in unpaid rent. (See complaint, ¶¶ 12, 14.) On July 1, 2013, Jemmy’s sister, May Lin (“May”), took over Jemmy’s lease until June 30, 2015; however, May made no payments at all such that she owes $64,000 in unpaid rent plus compound interest. (See complaint, ¶¶ 15-16.)

On October 28, 2015, Plaintiffs filed a complaint against Patrick, Rosa, Jemmy and May (collectively, “Defendants”) in the case number 2015-1-CV-287361 (“2015 action”). After Defendants demurred, the parties stipulated to sustain the demurrer with prejudice as to Jemmy and May, and sustain the demurrer with leave to amend as to Patrick and Rosa.

Nevertheless, on May 26, 2016, Plaintiffs filed a first amended complaint in the 2015 action, asserting causes of action for:

1) Breach of oral contract (against Patrick and Rosa);
2) Breach of oral contract (against all defendants);
3) Fraud (against Patrick and Rosa);
4) Fraud (against all defendants);
5) Common counts (against Patrick and Rosa); and,
6) Common counts (against all defendants).

There is currently a demurrer to the first amended complaint in the 2015 action on calendar, set for hearing on August 9, 2016.

On June 10, 2016, Plaintiffs filed a nearly identical complaint against Defendants in the instant action, asserting causes of action for:

1) Breach of oral contract (against Patrick and Rosa);
2) Breach of oral contract (against all defendants);
3) Fraud (against Patrick and Rosa);
4) Fraud (against all defendants);
5) Common counts (against Patrick and Rosa); and,
6) Common counts (against all defendants).

Defendants demur to the instant action on the grounds that there is another action between the parties on the same causes of action, and that Plaintiffs agreed to dismissal of Jemmy and May in the 2015 action.

In the afternoon of July 14, three court days prior to the hearing, Plaintiffs filed an opposition to the demurrer. Plaintiffs complain that when the parties purportedly stipulated to the demurrer, their former counsel, Albert Boasberg, did not represent Plaintiffs at the time of the stipulation, asserting that “[t]he stipulation and order is a game between attorney David Henshaw and attorney Albert Boasberg… [b]oth Plaintiff Yeao-Nan Hsieh and Sherry Hsieh did not know the deal made between attorney David Henshaw and attorney Albert L. Boasberg.” (Opposition to demurrer, ¶ 7.)

Regardless of whether the stipulation in the 2015 action is valid, Plaintiffs do not contest that there is currently another action pending involving the identical issues and parties in the instant action. In fact, plaintiff Sherry Hsieh filed a declaration acknowledging the two cases pending. (See Hsieh decl., ¶ 2.) The demurrer to the complaint in the instant action is SUSTAINED without leave to amend. (See Code Civ. Proc. § 430.10, subd. (c).)

The Court will prepare the order.