Case Name:   Keith Wong v. Naomi Wong, et al.

Case No.:       1-12-CV-235777

After full consideration of the arguments, authorities, and papers submitted by each party, the court makes the following rulings:

Currently before the Court is the demurrer by defendant Naomi Wong (“Ms. Wong”) to the second amended complaint (“SAC”) of plaintiff Keith Wong (“Plaintiff”).  Ms. Wong demurs to the first, third, fifth, sixth, seventh, and eighth causes of action of the SAC on the ground that they fail to allege facts sufficient to state a cause of action.  (See Code Civ. Proc., § 430.10, subd. (e).)  Ms. Wong also demurs to the fifth cause of action on the ground that the court lacks subject matter jurisdiction over the claim.  (See Code Civ. Proc., § 430.10, subd. (a).)

As a preliminary matter, the Court GRANTS Ms. Wong’s request for judicial notice of exhibits A and B.  (See Evid. Code, §452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].)  The Court DENIES Plaintiff’s request for judicial notice because it does not comply with California Rules of Court, rule 3.1113(l).  (See Cal. Rules of Court, rule 3.1113(l) [any request for judicial notice must be made in a separate document].)  Nonetheless, on its own motion, the Court takes judicial notice of the March 24, 2014 order filed in the Santa Clara County Superior Court in the matter of Naomi Wong, et al. v. Ching Lin (1-11-CV-204122).  (See Evid. Code, §452, subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co., supra, 24 Cal.4th at p. 422, fn. 2.)

The demurrer to the first and third causes of action for breach of contract on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRULED.  The oral contracts alleged by the first and third causes of action do not fall within the statute of frauds because the terms of the contracts do not expressly preclude performance within 1 year.  (See Civil Code §1624, subd. (a)(1); see also 1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §363, pp. 408 – 409 citing White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 343, fn. 2. [“The important words are ‘by its terms’; i.e., only those contracts which expressly preclude performance within a year are unenforceable. … ‘To fall within the words of this provision …, the agreement must be one of which it can truly be said at the very moment it is made, ‘This agreement is not to be performed within one year’; … the cases indicate that there must not be the slightest possibility that it can be fully performed within one year.’”].)

The demurrer to the fifth cause of action for fraud on the ground of lack of subject matter jurisdiction is OVERRULED.  The fifth cause of action for fraud concerns the internal affairs of the trust such that exclusive jurisdiction over the claims lies with the probate court.  (See Probate Code §§ 17000, 17200, subd. (b)(3).)  However, this Court does not lack fundamental jurisdiction over the probate matter as the probate department of the Santa Clara County Superior Court has “primary” jurisdiction and this Court has “secondary” jurisdiction.  (See Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1342-1345 [finding that by hearing a matter within the probate court’s exclusive jurisdiction, a trial court in equity acts merely in excess of jurisdiction, not without jurisdiction ]; see also Fisher v. Super. Ct. of Ventura County (1937) 23 Cal.App.2d 528, 531; see also Dowdall v. Super. Ct. of San Francisco (1920) 183 Cal. 348, 353.)

As Plaintiff’s “Petition to Determine the Validity of Will admitted to Probate Based on Undue Influence, Fraud and Failure to Meet Requirements of Probate Code §6110” in the case of In Re The Estate of Alina Wong (1-10-PR167179) is currently on appeal, the fifth cause of action for fraud shall be STAYED pending the appeal of that matter.  (See Dowdall v. Super. Ct. of San Francisco (1920) 183 Cal. 348, 353 [since the probate court “is the primary jurisdiction, … if a bill in equity is filed in any other superior court for the purpose of settling the account of such trustee, that court, upon being informed of the jurisdiction of the court in probate and that an account is to be or has been filed therein for settlement, should postpone the proceeding in its own case and allow the account to be settled by the court having primary jurisdiction thereof.”]; see also In re Estate of McLennan (1938) 29 Cal. App. 2d 666, 668 [“[i]n cases where two courts have concurrent jurisdiction to determine a matter, either court may stay proceedings before it until determination of the case by the other court”].)  In light of the stay, the Court declines to address the demurrer to the fifth cause of action on the ground of failure to allege sufficient facts to state a claim.

The demurrer to the eighth cause of action for conversion on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRULED.  The eighth cause of action alleges that Plaintiff had a right to possession of the settlement installment payments at the time said payments were converted by Ms. Wong because it expressly states that the settlement installment payments, which have been made by Mr. Lin to Ms. Wong, are the rightful property of Plaintiff given that the $150,000 loaned to Mr. Lin was Plaintiff’s money and Ms. Wong was acting as Plaintiff’s agent by becoming a beneficiary of the trust deed for the loan.  (See Franklin v. Municipal Ct. (1972) 26 Cal. App. 3d 884, 901 [to state a cause of action for conversion, a plaintiff must allege, in part, ownership or right to possession of tangible personal property at the time of conversion.)

The demurrer to the sixth and seventh causes of action for constructive trust and resulting trust on the ground of lack of subject matter jurisdiction is OVERRULED.  Plaintiff has adequately alleged that Ms. Wong wrongfully acquired the subject property because the sixth and seventh causes of action are predicated upon Plaintiff’s conversion claim and, as articulated above, the eighth cause of action pleads sufficient facts to state a claim for conversion.  (See Taylor v. Polackwich (1983) 145 Cal.App.3d 1014, 1022 [stating that a constructive trust is a “remedial device” that may be imposed “where there is a wrongful acquisition or detention of property to which another is entitled”]; see also Lloyds Bank Cal. v. Wells Fargo Bank (1986) 187 Cal.App.3d 1038, 1043 [stating that a resulting trust arises “from a transfer of property under circumstances showing that the

transferee was not intended to take the beneficial interest”].)

The Court will prepare the order.