Case Number: VC064009    Hearing Date: September 30, 2014    Dept: SEC

HENAN REBECCA HAIR PRODUCTS v. YOON
CASE NO.: VC064009
HEARING: 09/30/14

#4
TENTATIVE ORDER

I. Plaintiff HENAN REBECCA HAIR PRODUCTS, INC.’s motion
for reconsideration is CONTINUED to October 15, 2014 at 1:30 p.m.
in Department SE-D.

The Honorable Raul A. Sahagun issued the August 20, 2014 order denying plaintiff’s motion for an injunction, so he must also hear the motion for reconsideration. Due to his unavailability on this date, the matter is continued as noted above. Opposition has been filed and the time within which to reply has expired, so the matter is fully briefed.

II. & III. Defendants TOP BEAUTY, INC. and YOUNG CHUL YOON’s demurrers are SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to
the 1st through 4th (contract claims) and 5th (fraud) causes of action; otherwise OVERRULED.

C.C.P. § 430.10(e), (f).

Plaintiff HENAN REBECCA HAIR PRODUCTS, INC. brought this action to recover approximately $1.2 million from defendants, for unpaid invoices generated when defendants purchased hair extensions from plaintiff. Plaintiff asserts several causes of action to which defendants demur.

The contract causes of action (breach and common counts) are supported by invoices attached as Exhibit A to the complaint. The invoices evidence an agreement between plaintiff and defendant Top Beauty (“TBI”). Some of those invoices reference “Longgem International Corp.” In connection with the briefing on plaintiff’s request for an injunction, plaintiff indicated that it obtained an assignment of its claims from Longgem. That is not alleged. To that extent, the pleading is uncertain and the demurrer sustained with leave to amend. Otherwise, the complaint is adequate as to defendant TBI.

The cause of action brought under Commercial Code sections 2703 and 2709 is essentially a breach of contract claim for which the statutes provide various remedies. While the cause of action itself does not add anything to the pleading, defendant demurs only on the ground that the statutes require a written contract. The Court finds that the invoices satisfy the writing requirement, and thus the demurrer is overruled on that ground.

Defendant Yoon is alleged to be the principal of defendant TBI but is not a party to the invoices. Plaintiff alleges no basis upon which she can be held personally liable for the corporate debt. Plaintiff did not address the argument in the opposition. Defendant Yoon’s demurrer to the 1st through 4th causes of action is sustained. The Court will grant leave to amend so that plaintiff has an opportunity to cure the defect (or to omit defendant Yoon from the contract claims).

Defendants challenge the conversion cause of action on the ground that plaintiff lacks a possessory interest in an identifiable sum of money and thus cannot satisfy the elements of a conversion claim. See Kim v. Westmore Partners, Inc. (2011) 201 Cal.App.4th 267. Plaintiff is not alleging the conversion of money, but conversion of the goods. Specifically, it alleges that defendants “took delivery of the goods without any intention of paying…” Comp., ¶41. The allegations support the conversion cause of action and the demurrers thereto overruled.

The demurrer is sustained with leave to amend as to the fraud cause of action. As pled, the complaint lacks the requisite specificity regarding the alleged misrepresentations and/or facts indicating an intent not to pay. Additional specificity is required. See Cadlo v. Owns-Illinois, Inc. (2004) 125 Cal.App.4th 513.

Defendant challenges the unjust enrichment cause of action on the ground that restitution is a remedy and not a separate cause of action. Melchior v. New Line Productions Inc. (2003) 106 Cal.App.4th 779. In some instances, unjust enrichment is pled separately to distinguish the claim as a theory distinct from a breach of contract. Plaintiff may properly plead alternative theories of liability. The demurrer is overruled.