Case Name:   Levania Yue Juan Cheung v. Kent Kin Sun Tse

Case No.:       1-13-CV-252171

 

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

 

According to the allegations of the underlying complaint, Plaintiff Levania Yue Juan Cheung (“Plaintiff”) and defendant Kent Kin Sun Tse (“Defendant ”) met in 2001, lived together from 2002 to 2012, and have two children together.  (First Amended Complaint (“FAC”) ¶ 8.)  In early September 2011, Plaintiff offered to lend Defendant $40,000 to make a down payment on real property and Defendant accepted the offer. (FAC ¶ 10.)  On September 8, 2011, Defendant purchased real property in Milpitas, California (the “Property”) and on September 14, 2011, Plaintiff tendered a check to Defendant in the amount of $40,000.  (FAC ¶ 11-12.)  Plaintiff alleges that Defendant used the $40,000 to pay for improvements to the Property.  (FAC ¶ 28.)  Plaintiff further alleges that the $40,000 loan remains due and is unpaid.  (FAC ¶ 16.)  On April 2, 2014, Plaintiff filed a first amended complaint (“FAC”) asserting causes of action for: (1) breach of oral contract; (2) money lent; (3) restitution; and (4) money had and received.

 

On May 12, 2014, Defendant filed a cross-complaint against Plaintiff asserting the following causes of action: (1) fraud and deceit; and (2) intentional/negligent misrepresentation. The cross-complaint alleges that Plaintiff did not make any financial contribution to the purchase of the Property, but informed Defendant after escrow had closed on the Property that she wanted to purchase new furniture, make improvements to the Property, and take a trip to Hong Kong with their children.  (Cross-Complaint ¶¶ 15-16.)  Defendant “told Plaintiff that she needed to start contributing to the family if she wanted all of that to happen” and “[o]n September 14, 2011, Plaintiff wrote Defendant [. . .] a $40,000 check as a contribution to the family’s living expenses and for the purchase of new things for the house.”  (Cross-Complaint ¶ 17.)  Defendant alleges that the “claims [in Plaintiff’s FAC] are based on fraud deceit and intentional and negligent misrepresentation” and “Plaintiff filed the instant lawsuit seeking to recover $40,000 that she falsely represented to [him] was a contribution toward family trips and expenses.”  (Cross-Complaint ¶¶ 19-20, 27-28, 38.)  The cross-complaint alleges that “Plaintiff [. . .] made false representations, concealments and nondisclosures to [Defendant],” Defendant “relied upon these false representations, concealments and non-disclosures by [Plaintiff] in entering into agreements with Plaintiff,” and Defendant incurred substantial damages in the form of family expenses as a result of Plaintiff’s fraud.  (Cross-Complaint ¶¶ 22-28, 33-38.)

 

Plaintiff demurs to the cross-complaint in its entirety on the grounds of uncertainty, failure to allege facts sufficient to constitute a cause of action, and failure to state whether the “agreements” alleged within the cross-complaint are written, oral, or implied by conduct.  (See Code Civ. Proc., § 430.10, subds. (e), (f), and (g).)

 

Plaintiff’s request for judicial notice is DENIED.  Plaintiff did not file a separate document listing the specific items to be judicially noticed as required by California Rules of Court, rule 3.1113(l), but included her request in her memorandum of points and authorities.  (See Cal. Rules of Court, rule 3.1113(l).)  In addition, Defendant’s discovery response is not a proper subject for judicial notice because it does not contradict the allegations in the cross-complaint. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604 [“[t]he court will take judicial notice of records such as [. . .] answers to interrogatories [. . .] when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court”] [emphasis added].)

 

Defendant’s request for judicial notice is GRANTED because the cross-complaint and FAC are court records that are relevant to Plaintiff’s demurrer.  (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 are subject to judicial notice].)

 

As a preliminary matter, the Court finds that Plaintiff complied with the requirements of Code of Civil Procedure section 430.60 because she stated in her notice of motion and demurrer that she would “demur to Defendant’s Cross-Complaint in its entirety” and “[t]he demurrer will be made on the grounds that [. . .] [i]t does not state facts sufficient to constitute a cause of action [CCP § 430.10(e)].”  (Notice of Motion, p. 2:5-8; Demurrer, p. 3:2-5.)

 

Plaintiff’s demurrer on the ground of failure to allege sufficient facts to constitute a cause of action is OVERRULED.  Plaintiff argues that the cross-complaint fails to allege sufficient facts because Defendant’s verified discovery response, stating that he told her that she needed to start contributing to the family, contradicts his allegation in the cross-complaint that she falsely represented to him that the $40,000 was a contribution toward family trips and expenses.  (Mem. Ps & As., p. 2:7-28, 4:18-21.)  Plaintiff’s argument is based on Defendant’s discovery response which is not subject to judicial notice.  (See Hall v. Great Western Bank (1991) 231 Cal.App.3d 713, 719, fn.7 [“[a] court will not consider facts which have not been alleged in the complaint unless they may be reasonably inferred from the matters which have been pled or are proper subjects of judicial notice”].)  Moreover, as indicated above, Defendant’s discovery response does not contradict the allegation in the complaint that Plaintiff fraudulently represented that the $40,000 was a contribution to the family expenses.

 

The Court did not consider Plaintiff’s arguments that: (1) the cross-complaint fails to allege facts sufficient to state a cause of action because it does not specify how, when where, to whom, by whom, and by what means the alleged representations were tendered; and (2) the litigation privilege bars Defendant’s cross-complaint.  These points were raised for the first time in Plaintiff’s reply papers and, therefore, implicate due process concerns (i.e., Defendant did not have the opportunity to respond to the arguments in his opposition).  (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [points raised for first time in a reply brief will ordinarily be disregarded because other party is deprived of the opportunity to counter the argument]; see also Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [“[t]he general rule of motion practice. . .is that new evidence is not permitted with reply papers”].)

 

Plaintiff’s demurrer on the ground of uncertainty is OVERRULED.  (See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 [a demurrer for uncertainty is strictly construed because ambiguities can be clarified under modern discovery procedures].)  Even though the cross-complaint does not state the specific amount of damages sought, this defect is not a valid ground for demurrer and “the specific dollar amount is necessary only when a default judgment is to be entered.”  (See Code Civ. Proc., § 430.10; see also Furia v. Helm (2003) 111 Cal.App.4th 945, 957 [internal citation omitted]; Merlino v. W. Coast Macaroni Mfg. Co. (1949) 90 Cal.App.2d 106, 112 [“the prayer for relief is no part of the statement of the cause of action, and should, where necessary, be disregarded”].)  Plaintiff’s argument that the cross-complaint is uncertain because “Defendant cites no statute or case to indicate that an ‘offset’ is warranted by existing law” is not a proper ground for demurrer as a motion to strike is the appropriate procedure by which to attack an improper remedy.  (See Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-62 [a demand for improper relief does not vitiate an otherwise valid cause of action].)

 

Plaintiff’s demurrer on the ground of failure to allege whether a contract is written, oral, or implied by conduct is OVERRULED.  Code of Civil Procedure section 430.10, subdivision (g) states that a party may demur on the ground that, “[i]n an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”  (See Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal. App. 3d 452, 459, fn. 4.)  However, Defendant’s fraud causes of action are not founded upon a contract, but rather sound in tort.  (See Strozier v. Williams (1960) 187 Cal.App.2d 528, 532 [holding that the statute did not apply to a declaratory relief action pertaining to a defendant’s alleged fraudulent failure to pay money owed under an agreement because the action was founded upon fraud]; see also Fanucchi v. Coberly-West Co. (1957) 151 Cal.App.2d 72, 83 [holding that the statute did not apply because the action sounded in restitution and tort].)

 

Plaintiff’s request for attorney’s fees pursuant to Code of Civil Procedure section 128.5 is MOOT as Plaintiff has withdrawn that request.

 

The Court will prepare the order.