Case Name: Wei Qin, et al. v. Hanping Hou
Case No.: 18CV328943

This is a dispute between Plaintiffs Wei Qin and Jiahui Wang (“Plaintiffs”) and Defendant Hanping Hou (“Defendant”) arising from two alleged loans of money arranged through a middleman, non-party Yi Qin. Neither alleged loan agreement was ever reduced to writing.

Plaintiffs allege that in July 2016 Defendant told third party Yi Qin (not Plaintiffs) that she urgently needed money and “would repay [money loaned to her] in or around one year.” (Complaint, ¶¶ 15 & 19.) Yi Qin reached out to his relatives (Plaintiffs) regarding Defendant’s request. (Id. at ¶ 15.) Wei Qin then agreed to loan Defendant money, and Yi Qin informed Defendant of the same. (Id. at ¶ 16.) Defendant sent her bank account information to Yi Qin, who forwarded it to Wei Qin. (Ibid.) On July 15, 2016, Wei Qin wired Defendant approximately $650,522. (Id. at ¶¶ 17-19.) Despite several demands for payment, Defendant refused to repay the loan. (Id. at ¶¶ 20, 28, 32, 39, & 44.)

In January 2018, Defendant told Yi Qin that she wanted to “borrow money for short term in or around a month.” (Complaint at ¶ 21.) Yi Qin told his relatives that Defendant wanted to borrow approximately $317,460. (Ibid.) Jiahui Wang agreed to loan Defendant money, and Yi Qin informed Defendant of the same. (Ibid.) Defendant sent her bank account information to Yi Qin, who forwarded it to Jiahui Wang. (Ibid.) On January 3, 2018, Jiahui Wang wired Defendant approximately $317,460. (Id. at ¶¶ 22-23.) Despite several demands for payment, Defendant refused to repay the loan. (Id. at ¶¶ 28, 32, 39, & 44.)

The original and still operative verified Complaint filed May 25, 2018 states five causes of action: 1) Fraud (alleging that Defendant never intended to repay the loan “in or around one year” as promised); 2) Breach of oral contract (same oral promise to repay as in the fraud claim), mislabeled as “Common Count: Money had and Received” in the body of the Complaint; 3) Common Count: Money Had and Received, alleging in pertinent part that “Defendants received money that she borrowed from the Plaintiffs in the amount of RMB 4,098,085.00 and RMB 2,000,000.00 respectively and acknowledged receipt of both of the wire transfers which are also established by the wire transfer receipts attached hereto as Exhibit A and Exhibit B. The money received by the Defendant was not for the benefit of the Plaintiffs. Defendant has not repaid the money wired to her by the Plaintiffs and refused to repay Plaintiffs.” (Complaint at ¶¶42-44.); 4) Restitution: Unjust Enrichment (same transfer of money), and; 5) Conversion (based on the same failure to repay).

Currently before the Court is Plaintiff’s motion for summary adjudication of their third cause of action for Money Had and Received only.

Requests for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.) Both sides have submitted requests for judicial notice. The Court notes that neither side appears to appreciate the limited utility of a request for judicial notice as a method of submitting evidence in support of or in opposition to a motion for summary adjudication.

Plaintiffs’ Request
In support of their motion Plaintiffs have submitted a request for judicial notice of three documents, attached as exhibits A-C to the request, pursuant to “Evidence code sections 452 and 453.” (Request at p. 1:25-26.) They do not identify any more specific basis for taking notice of any of the documents. Exhibit A is a copy of the operative Complaint. Exhibit B is a copy of Defendant’s amended Answer filed December 12, 2018 and Exhibit C consists of copies of both Requests for Admissions plaintiffs propounded on Defendant and Defendant’s responses.

Judicial Notice of exhibits A and B is GRANTED pursuant to Evidence Code §452(d) (court records) only. Court records other than court orders and judgments can only be noticed as to their existence and filling dates, not as to the truth of their contents, and the existence and filing dates of these documents have little relevance to the material issue before the Court: whether Plaintiffs are entitled to summary adjudication of their third cause of action. The Court also notes that Plaintiffs cannot rely on the Complaint as evidence to support their motion.

Notice of Exhibit C is DENIED. Discovery materials cannot be noticed under §452(d) as they are not filed with the court. Notice under §452(h) is not appropriate as the parties clearly dispute the “facts” set forth in the responses. In the context of a demurrer judicial notice can be taken of discovery responses only if they contradict the pleading being challenged. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605 [“The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, 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.”]) Even assuming for purposes of argument that this same rule applies on summary judgment/adjudication, Defendant’s discovery responses do not contradict her Answer. In both the Answer and the RFA responses Defendant consistently states that she borrowed money from non-party Yi Qin and not from Plaintiffs.

Defendant’s Request
With her opposition to the motion Defendant has submitted a request for judicial notice of seven documents, attached as exhibits A-G to the request “[p]ursuant to Evidence Code §§ 452 and 453.” (Request at p. 2:1.) Defendant later cites §452(h) as a basis for judicial notice.

Exhibit A is an (unmarked) copy of Plaintiff’s verified amended responses to form interrogatories dated approximately May 20, 2019. Exhibit B is a copy of Defendant’s declaration in support of her June 2019 motion to compel. Exhibit C is copy of Defendant’s motion for sanctions filed on August 5, 2019 (the day before the opposition to this motion was filed) and set for hearing on September 17, 2019. Exhibit D is a copy of Defense Counsel’s declaration in support of the upcoming motion for sanctions. Exhibit E is a copy the Court’s June 6, 2019 order on the motion to compel and Exhibits F & G are copies of Defendant’s December 2018 special interrogatories and RFPDs respectively, the basis for the June 2019 motion to compel.

Notice of these documents is DENIED as none of them are relevant to the material issue before the Court. Evidence Code §452(h) does not apply to any of the submitted material. “Judicial notice under Evidence Code section 452, subdivision (h) is intended to cover facts which are not reasonably subject to dispute and are easily verified. These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Gould v. Md. Sound Indus. (1995) 31 Cal.App.4th 1137, 1145.)

Declarations cannot be noticed as to the truth of their contents. (See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057 [court may take judicial notice of existence of declaration but not of facts asserted in it]; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [court may not notice the truth of declarations or affidavits filed in court proceedings].) The existence and filing dates of the declarations (exhibits B & D) are irrelevant to the material issue before the Court. Notably, none of the material submitted for notice is cited as evidence in Defendant’s opposing separate statement.

Plaintiffs’ Motion for Summary Adjudication
The pleadings limit the issues presented for summary judgment/adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

Cal. Rule of Court 3.1350(b) states in pertinent part: “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Neither party can rely on their own pleadings (even if verified) as evidence to support or oppose a motion for summary judgment or summary adjudication. (College Hospital, Inc. v. Sup Ct. (1994) 8 Cal.4th 704, 720, fn. 7; Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054.) This is because CCP §437c(b)(1) requires the moving party to demonstrate the presence or absence of a triable issue of material fact by “affidavits, declarations, admissions” or other admissible evidence. Either side can rely on unequivocal admissions of fact contained in the opposing party’s pleading as evidence. (See 24 Hour Fitness, Inc. v. Sup. Ct. (1998) 66 Cal.App.4th 1199, 1211; Valerio v. Andrew Youngquist Const. (2002) 103 Cal.App.4th 1264, 1271.)

The moving party may generally not rely on additional evidence filed with its reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions . . .”]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

Where a Plaintiff moves for summary judgment/adjudication, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (See CCP §437c(p)(1); Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287, disapproved on other grounds in Aguilar; S.B.C.C., Inc. v. St. Paul Fire & Marine, Ins. Co. (2010) 186 Cal.App.4th 383, 388.) This means that a plaintiff who bears the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable finder of fact to find any underlying material fact more likely than not. “Otherwise, he would not be entitled to judgment as a matter of law.” (Aguilar, supra at p. 851; LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776 [burden is on plaintiff to persuade court there is no triable issue of material fact].)

Plaintiffs’ motion for summary adjudication of their third cause of action for Money Had and Received is DENIED for failure to meet their initial burden to establish that there are no triable issues of material fact as to Defendant’s liability to them under the third cause of action.

“‘A cause of action for money had and received is stated if it is alleged [that] the defendant “is indebted to the plaintiff in a certain sum ‘for money had and received by the defendant for the use of the plaintiff.’ ” …’ The claim is viable ‘“wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter.” ’ As juries are instructed in CACI No. 370, the plaintiff must prove that the defendant received money ‘intended to be used for the benefit of [the plaintiff],’ that the money was not used for the plaintiff’s benefit, and that the defendant has not given the money to the plaintiff.” (Avidor v. Sutter’s Place, Inc. (2013) 212 Cal.App.4th 1439, 1454, internal citations omitted.)

Plaintiffs have failed to produce evidence that would require a reasonable finder of fact to find any underlying material facts of the claim in their favor. They have not established an absence of triable issues as to whether Defendant received money belonging to them (as opposed to non-party Yi Qin) that was intended to be used for their benefit. Plaintiffs cannot use their own complaint as evidence in support of summary adjudication as a matter of law. They also cannot rely on the exhibits to the Complaint as supporting evidence as Rule of Court 3.1110(g) [“Translation of Exhibits”] states that “Exhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.” (Emphasis added.) Even if it were assumed for purposes of argument that Defendant’s Answer and discovery responses could be judicially noticed as to the truth of their contents, those contents do not admit any of the elements of the claim for Money Had and Received.

Finally the Court notes that Defendant submitted objections to Plaintiffs’ evidence with the opposition. These objections do not comply with Rule of Court 3.1354, which requires two documents to be submitted: the objections and a separate proposed order on the objections, both of which must be in one of the two approved formats stated in the Rule. As the burden of persuasion never shifts to Defendant the Court does not need to consider these objections. Objections that are not ruled on are preserved for appellate review. (CCP § 437c(q).)