Case Number: EC060584    Hearing Date: April 25, 2014    Dept: A

Li v Zhang

DEMURRER & MOTION TO STRIKE
MOTION TO QUASH

Calendar: 5
Case No: EC060584
Date: 4/25/14

MP: Defendants, DMDC Investments and Thanh Ly
RP: Plaintiff, James Li

ALLEGATIONS IN SECOND AMENDED COMPLAINT:
The Plaintiff provided legal services to the Defendants. The Plaintiff was paid with promissory notes that were secured by deeds of trust. The Defendants attempted to thwart the Plaintiff’s ability to collect money by failing to service the mortgages on the properties.

RELIEF REQUESTED:
1. Demurrer to each cause of action.
2. Strike requests for punitive damages.
3. Quash service of summons on Defendant, David Zhang

DISCUSSION:
This hearing concerns the demurrer and motion to strike of the Defendants, DMDC Investments and Thanh Ly. In addition, the Defendant, David Zhang, has failed a motion to quash the service of summons.

1. Demurrer to Entire Pleadings
The Defendants argue that the causes of action are uncertain and lack sufficient facts.
Under CCP section 430.10(f), there are grounds for a demurrer when the pleadings are uncertain. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. Khoury v. Maly’s of California Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty will be sustained only when the complaint is so bad that the defendant cannot reasonably respond because the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against the defendant. Id.
The body of the Second Amended Complaint includes eleven causes of action. The Plaintiff did not comply with CRC rule 2.112 by identifying the nature of each cause of action, e.g., “for fraud”, or the parties against whom the cause of action is direct, e.g., “against Defendant, DMDC Investments”).
Further, a review of the caption for the Second Amended Complaint reveals that it lists five claims: Setting Aside (Extrinsic Fraud), Setting Aside (Civil Code section 3439), Abuse of Process, Unjust Enrichment, and Conspiracy. There are no numbers and no way to match these claims to the causes of action in the body of the pleadings. Further, these captions include causes of action that do not exist, i.e., “setting aside” and theories that are not causes of action, i.e., “unjust enrichment” and “conspiracy”.
These defects make the pleadings so bad that the Defendants cannot reasonably determine the nature of the claims directed at each Defendant or the issues to admit or deny. The Defendants are not required to speculate as to the nature of the Plaintiff’s claims or as to which claims are directed at them. Since the Defendants cannot reasonably respond to the claims, there are grounds for a demurrer based on uncertainty to the entire Second Amended Complaint.

Further, it cannot be determined if any cause of action pleads sufficient facts against a specific Defendant because the Defendants and the Court can only speculate as to the nature of the causes of action that the Plaintiff was attempting to plead and as to the Defendants against whom each cause of action is directed. As noted above, the caption for the Second Amended Complaint identifies causes of action that do not exist, i.e., “setting aside” and theories that are not causes of action, i.e., “unjust enrichment” and “conspiracy”.
In addition, the Plaintiff incorporates the entire pleadings into each cause of action, which requires the Defendants to search through the entire pleadings in an effort to determine the nature and extent of the claims directed at them. This is an improper use of incorporation. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101. Neither the Court nor the Defendants are required to search the pleadings in order to determine whether the Plaintiff has pleaded a cause of action. Instead, the essential elements of each cause of action must be pleaded within the cause of action.
Accordingly, there are also grounds for a demurrer to each cause of action for the failure to state sufficient facts.

Therefore, the Court will sustain the Defendants’ demurrers to each cause of action. The Court will grant the Plaintiff this opportunity to amend so that the Plaintiff may plead causes of action recognized under California law that allege the essential elements within the body of the cause of action and that include captions that comply with CRC rule 2.112.

2. Motion to Strike
In light of the sustaining of the demurrers to each cause of action in the Second Amended Complaint, the Defendant’s motion to strike is moot and will be taken off calendar.

3. Motion to Quash
The Defendant, David Zhang, requests that the Court quash the service of summons on him because the address where the summons and complaint was served by substituted service is not his residence.
CCP section 418.10 permits a defendant to serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the Court over the defendant. Service of summons is not effective and the Court does not acquire jurisdiction over a party unless the statutory requirements for service of summons are met. Engebretson & Co. v. Harrison (1981) 125 Cal. App. 3d 436, 443.
The Plaintiff served the summons and complaint by substituted service. Under CCP section 415.20, a plaintiff who is unable to serve a summons and complaint by personal service through reasonable diligence may serve a summons and complaint by substituted service at the defendant’s dwelling house or usual place of abode.
The Plaintiff filed a proof of service that indicates that the Plaintiff’s non-registered process server delivered the papers to an elderly lady at 1412 S. Charlotte Ave., San Gabriel, CA 91766. The non-registered process server states that the lady is a former or current mother-in law. Since the process server is not registered, the facts in his declaration are not entitled to the presumption that the facts in his return are correct.
The Defendant states that he resides in China, that he has never lived at 1412 S. Charlotte Ave., San Gabriel, and that he does not receive mail at 1412 S. Charlotte. Further, the Defendant states that the property at 1412 S. Charlotte Ave., is owned by Winne Yang, who is his ex-wife.
The Plaintiff’s opposition papers do not present any evidence that David Zhang resides at the address. Instead, the Plaintiff admits in his declaration that when he accompanied the non-registered process server to make the service, he heard the elderly lady state that David Zhang was not there and that David Zhang was in China.
Further, the Plaintiff does not dispute that he did not attempt with reasonable diligence to serve the summons and complaint. Instead, he argues that it would have been futile because the Defendant was out of the country. This indicates that the Plaintiff did not comply with CCP section 415.20 when the summons and complaint were served because the Plaintiff did not serve the papers at the Defendant’s residence.
Accordingly, there are grounds to quash the service of summons because the Plaintiff did not comply with the statutory requirements for service of summons.

Further, the Defendant say he reside in China. In order to make a proper service on the Defendant, the Plaintiff must comply with the Hague Service Convention. Kott v. Superior Court (1996) 45 Cal. App. 4th 1126, 1135-1136. The failure to comply with the Hague Service Convention procedures voids the service even if it were made in compliance with California law. Id. This is true even in cases where the defendant had actual notice of the lawsuit. Id. Accordingly, when the Plaintiff attempts to serve the Defendant, the Plaintiff must comply with the requirements of the Hague Service Convention.

RULING:
1. SUSTAIN demurrers to each cause of action with leave to amend.
2. TAKE OFF CALENDAR motion to strike.
3. GRANT motion to quash service of summons on Defendant, David Zhang.