Case Number: EC060908    Hearing Date: July 18, 2014    Dept: A

Farsighted Enterprise v Goodwill Windows

DEMURRER

Calendar: 5
Case No: EC060908
Date: 7/18/14

MP: Defendant, Good Fit Windows and Doors (DOE Defendant 1)
RP: Plaintiff, Farsighted Enterprise, Inc.

RELIEF REQUESTED:
Demurrer to each cause of action in Complaint.

ALLEGATIONS IN COMPLAINT:
The Plaintiff obtained a judgment against Defendants, Xiaoyue Lu and Goodwill Windows and Doors. The Defendants incorporated a new business and conspired to engage in fraudulent conveyances to avoid the judgment.

CAUSES OF ACTION IN COMPLAINT:
1) Fraudulent Conveyance
2) Conspiracy
3) Bulk Sale
4) Declaratory Relief

DISCUSSION:
Trial is set for August 11, 2014.

This hearing concerns the demurrer of the Defendant, Good Fit Windows and Doors, which was named as DOE Defendant 1 in an amendment to the Complaint filed on May 16, 2014. The Defendant argues that each cause of action lacks sufficient facts.
CCP section 474 permits a plaintiff who is ignorant of the name of a defendant to designate the defendant by any name in the complaint, but requires the plaintiff to allege in the complaint that the plaintiff is ignorant of the defendant’s name. When the plaintiff discovers the defendant’s true name, CCP section 474 permits the plaintiff to amend the pleadings. The purpose of CCP section 474 is to permit a plaintiff to preserve a claim against an unknown defendant until the plaintiff learns the identity of the defendant. Dieckmann v. Superior Court (1985) 175 Cal. App. 3d 345, 355.
It is not enough simply to name DOE defendants. Rather, the complaint must allege that the DOE Defendants were responsible in some way for the acts complained of in the pleadings. Winding Creek v. McGlashan (1996) 44 Cal. App. 4th 933, 941. A common practice is for a plaintiff to draft the pleadings so the causes of action directed against the DOE Defendants include them in the caption for the cause of action and in the pleadings that constitute the cause of action. When the pleadings are amended to identify the true name of a DOE defendant, the pleadings are then read as if the true name were pleaded in place of the DOE defendant.
A review of the four causes of action in the Complaint reveals that none are directed at DOE Defendant 1 or any other DOE Defendant. The captions for each cause of action do not comply with CRC rule 2.112 because they do not identify the party or parties against whom each is directed, e.g., against Xiaoyue Lu or against all Defendants.
Further, a review of each cause of action reveals that there are no allegations regarding DOE Defendant 1 or any other DOE Defendant. The Plaintiff pleaded facts regarding Defendants, Xiaoyue Lu and Goodwill Windows & Doors, Inc. However, after the Plaintiff pleaded in paragraph 13 that the Plaintiff did not know the names of DOE Defendants one to ten and that the Plaintiff would amend the Complaint to add their names, the Plaintiff failed to plead any facts regarding a DOE Defendant.
Accordingly, the Plaintiff’s Complaint only named the DOE Defendants, but no charging allegations against them. There are no allegations that plead that the DOE Defendants were responsible in some way for the acts complained of in the pleadings. This is a basis to sustain a demurrer to each cause of action.

The opposition papers do not direct the Court to the paragraphs in which the Plaintiffs alleged the facts showing that the DOE Defendants were responsible for the claims in each cause of action. Instead, the Plaintiffs argue that the allegations of the Complaint should be “liberally construed”. Under CCP section 452, in the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed with a view to substantial justice.
In the pending case, a liberal construction does not help the Plaintiff because the Plaintiff did not plead any facts regarding the DOE Defendants in each cause of action. There are no allegations that the DOE Defendants engaged in a fraudulent conveyance, conspired to engage in a fraudulent conveyance, or engaged in a bulk sale. For example, in the fourth cause of action, the Plaintiff alleges that an actual controversy has arisen regarding whether Goody Windows & Doors and Goodwill Windows & Doors are separate entities. There are no allegations that show that this actual controversy involves a DOE Defendant.

Therefore, the Court will sustain the demurrers to each cause of action in the Complaint. It is reasonably possible to correct these defects by adding allegations regarding the DOE Defendants and specifically DOE Defendant 1, which has been identified as Good Fit Windows and Doors. Accordingly, the Court will grant leave to amend.

RULING:
SUSTAIN demurrers to each cause of action in the Complaint with leave to amend.