Case Number: KC069651 Hearing Date: March 06, 2018 Dept: J

Re: Ok Joo Kim v. Younghee Susan Pak, et al. (KC069651)

MOTION TO STRIKE PORTIONS OF COMPLAINT

Moving Parties: Defendants Younghee Susan Pak and Simplt, Inc.

Respondent: Plaintiff Ok Joo Kim

POS: Moving OK; Opposing served and filed untimely contrary to CCP § 1005(b)

Plaintiff alleges that she loaned Defendant Younghee Susan Pak (“Pak”) $494,000.00 “in security of” Pak’s personal checks. Plaintiff alleges that she additionally “cashed” Pak’s business, Defendant SIMPLT, Inc.’s (“SIMPLT”), checks in the amount of $215,710.00. Plaintiff alleges that these checks were all dishonored. The complaint, filed 9/26/17, asserts causes of action against Pak, SIMPLT for:

1. Breach of Contract

2. Common Count

3. Conversion

A Case Management Conference is set for 3/6/18.

Defendants Younghee Susan Pak and Simplt, Inc. move the court, per CCP § 436, for an order striking out the following portions of Plaintiff Ok Joo Kim’s complaint:

1. ¶ 6: “and additionally cashed to her business (SIMPLT) checks of $215,000.00 (Two Hundreds Fifteenth Thousands US Dollars”);

2. ¶ 10: “In addition, between 12/15/12 and July 13, 2013, Kim cashed PAK’s Alter-Ego Corporation (SIMPLT, Inc.) Checks of total $215,710.00, (Two Hundred Fifteen Thousands US Dollars);”

3. ¶ 18: “In addition, between 12/15/2012 and July 13, 2013, Kim cashed PAK’s Alter-Ego Corporation (SIMPLT, Inc.) Checks of total $215, 710.00, (Two Hundred Fifteen Thousands US Dollars);”

4. ¶ 28: “Pak is additionally liable to her Alter Ego corporation SIMPLT’s debt of $215,000.00, totaling $709,000.00;”

5. ¶ 30: “$709,000.00;”

6. ¶ 31: “$709,000.00;”

7. ¶ 32: “$709,000.00;”

8. ¶ 35: “$709,000.00;”

9. Prayer for Judgment: “$709,000.00.”

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all of any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” CCP § 436.

“”[I]n some cases a portion of a cause of action will be substantively defective on the face of the complaint. Although a defendant may not demur to that portion, in such cases, the defendant should not have to suffer discovery and navigate the often dense thicket of proceedings in summary adjudication. We conclude that when a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of action by filing a motion to strike.” PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.

Plaintiff alleges that “[b]etween 12/1/2015 and 12/20/2016, upon PAK’s request, KIM personally and individually loaned PAK $494,000.00 (Four Hundred Ninety Four Thousands US Dollars) “in security of” her personal checks. In addition, between 12/152012 [sic] and 7/13/2013, KIM “cashed” PAK’s Alter Ego Corporation (SIMPLT, Inc.) checks of total $215,000.00, (Two Hundreds Fifteen Thousands US Dollars).” (Complaint, ¶¶ 17 & 18).

Plaintiff further alleges that “all security checks (i.e., PAK’s personal checks) were dishonored. Also, PAK’s all Alter Ego Corporation (SIMPLT, Inc.) checks being cashed were dishonored by insufficient funds and stop payment. Kim had been consistently demanded to repay them both to PAK and her Alter Ego Corporation (SIMPLT), recognizing Statute of Limitation. They understood it and nonetheless promised to promise to [sic] pay with continuous and consistent excuse.” (Id., ¶¶ 19-21).

The statute of limitations for a breach of written contract cause of action and account stated is four years. CCP § 337. It is unclear whether the contract is alleged to be written or oral; if oral, the pertinent statute of limitations is two years. CCP § 339. The statute of limitations for a conversion cause of action is three years. CCP § 335. Plaintiff’s complaint was filed 9/26/17; as such, the aforesaid allegations appear to be time-barred. It appears plaintiff is attempting to plead estoppel in ¶¶ 11, 12, 20 and 21 of her complaint. An estoppel against a limitations defense usually ‘”arises as a result of some conduct by the defendant, relied on by the plaintiff, which induces the belated filing of the action.”’ (Prudential-LMI Com. Insurance v. Superior Court [(1990)] 51 Cal.3d [674,] at pp. 689-690; Velasquez v. Truck Ins. Exchange (1991) 1 Cal.App.4th 712, 723; 3 Witkin, Cal. Procedure (3d ed.1985), Actions, § 523, p. 550.).” Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1267-1268.

“’”Four elements must ordinarily be proved to establish an equitable estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and, (4) he must rely upon the conduct to his injury.”’ (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Café & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 59).” Id. at 1268. Plaintiff has not pled these elements.

The motion is granted. The court will hear from plaintiff as to whether leave to amend is requested.