Case Number: EC061888    Hearing Date: October 31, 2014    Dept: A
Lee v Lee

DEMURRER & MOTION TO STRIKE

Calendar: 8
Case No: EC061888
Date: 10/31/14

MP: Defendant, Joseph Lee
RP: Plaintiffs, William Lee and Angela Quon

ALLEGATIONS IN SECOND AMENDED COMPLAINT:
The Plaintiffs formed Wilrub Enterprises, Inc. on November 30. 2002. The Plaintiffs then entered into an oral agreement with Defendant, Joseph Lee, under which Joseph Lee would manage real properties for Wilrub Enterprises, Inc.
On August 17, 2004, Joseph Lee forged William Lee’s signature on a promissory note and personal guaranty of a real estate business loan with Defendant, East West Bank. On April 28, 2005, Joseph Lee forged William Lee’s signature on a line of credit and personal guaranty with Defendant, Wells Fargo Bank. The Plaintiff, William Lee, had no knowledge of the forgery until January 21, 2011 when he was advised by an employee at Wells Fargo Bank that he was listed as a guarantor. The Plaintiff seeks declaratory relief regarding his duty under the personal guaranty.
Further, Joseph Lee took the jewelry collection from the Plaintiff, Angela Quon. She seeks damages for the conversion of her property.

CAUSES OF ACTION IN SECOND AMENDED COMPLAINT:
1) Fraud
2) Declaratory & Injunctive Relief
3) Conversion

RELIEF REQUESTED:
Demurrer to third cause of action.

DISCUSSION:
This hearing concerns the demurrer and motion to strike of the Defendant, Joseph Lee.

1 Demurrer of Defendant, Joseph Lee
The Defendant argues that this cause of action is barred by the statute of limitations. Under CCP section 338, the statute of limitations begins to run within three years from the taking of personal property. The statute of limitations begins to accrue on the conversion cause of action when the property is taken, even if the owner is ignorant of the wrong committed. Naftzger v. American Numismatic Society (1996) 42 Cal. App. 4th 421, 429. The statute is tolled when the defendant fraudulently conceals the facts. Id. For example, in Naftzger, the person who converted the coins at issue, fraudulently concealed the taking by substituting inferior coins of the same variety for the stolen Clapp coins.
The Plaintiff alleges in paragraph 39 and 40 that the Defendant took the jewelry collection of Angela Quon on October 23, 2010 at the home of Angela Quon’s father where the jewelry was kept in a safe. The Plaintiff alleges that the Defendant fraudulently concealed that he had taken the jewelry by taking the jewelry while claiming that he was collecting certain gold coins that were in the safe. Further, the Plaintiff alleges that Angela Quon’s father is blind, which reveals the manner by which the Defendant could take the jewelry without Angela Quon’s father detecting the conversion.
In paragraph 41, the Plaintiff alleges that she discovered the conversion on October 14, 2011 when the Defendant returned less expensive jewelry but failed to return her remaining gold and diamond jewelry. These allegations are sufficient to plead the manner by which the Defendant fraudulently concealed the conversion of the items. Further, the allegations indicate that the three year statute of limitations began to run on October 14, 2011. The Plaintiff had until October 14, 2014 to bring a conversion cause of action.
A review of the Court file reveals that the Plaintiff commenced this action on January 16, 2014. Since this was before October 14, 2014, the dates in the pleadings do not show that the action is barred by the statute of limitations.

The Defendant argues that these allegations contradict allegations in paragraph 27 that she discovered the conversion in early 2011. In paragraph 27, the Plaintiff alleges that in early 2011, after she returned from a trip to Japan, she learned about the conversion. This would require the Plaintiff to commence her action by “early 2014”.
As noted above, the Plaintiff commenced this action on January 16, 2014, which was in “early 2014”. Since “early 2014” is three years after “early 2011”, even if the Court attempt to apply this imprecise date, there are no grounds to find that the dates in the pleadings show that the statute of limitations bars the claim.
Accordingly, there are no grounds to sustain a demurrer based on the statute of limitations.

The Defendant also argues that the pleadings are uncertain. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. Khoury v. Maly’s of California Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty will be sustained only when the complaint is so bad that the defendant cannot reasonably respond because the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against the defendant. Id.
A review of the third cause of action reveals that the Plaintiff identified the nature of the cause of action directed at the Defendant, i.e., a cause of action for conversion. Further, a review of the allegations in the pleadings reveals that the Plaintiff’s claim is that the Defendant converted her jewelry collection. The Defendant can reasonably respond to the pleadings because he can reasonably determine the count or claim directed against him and the Defendant can reasonably determine what issues to admit or deny, e.g., that the he converted the jewelry.
Accordingly, there are no grounds to find that the pleadings are uncertain.

The Defendant then argues that there is a defect or misjoinder of parties. The Defendant argues that the jewelry may belong to other members of Angela Quon’s family. This argument offers no basis for a demurrer because the Plaintiff alleges in paragraph 38 that she owned and has the right to possession of the jewelry. The allegations are assumed true and the ability to prove the allegations is of no concern for the purposes of ruling on the demurrer. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.
Accordingly, there are no grounds to find any defect or misjoinder based on the theory that the jewelry was owned by other members of Angela Quon’s family.

Therefore, the Court will overrule the demurrer to the third cause of action.

2. Motion to Strike
The Defendant requests that the Court strike every use of the following terms:

1) “forge”, “forgery”, and “forged”;
2) “fraud”, “fraudulent”, and “fraudulently”;
3) the claim for punitive damages; and
4) the Plaintiff’s signature on the verification.

A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects. PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683. A defendant cannot use a motion to strike as a “line item veto.” Id.

a. Uses of Terms Related to Forgery and Fraud
There are no grounds to strike out any of the terms “forge”, “forgery”, “forged”, “fraud”, “fraudulent”, or “fraudulently” because a party may use these terms in their pleadings. The Defendant argues that each use of these terms must be supported by particular facts; however, no legal authority holds that each use of a legal conclusion, such as “fraudulent”, must be stricken unless it is supported by particular facts.
Instead, the Defendant relies upon legal authority regarding the requirement to plead a cause of action for fraud. This is inapplicable because there is no requirement to plead particular facts for each use of the term “fraud”.
Accordingly, the Court will deny this portion of the motion to strike.

b. Claim for Punitive Damages
The Defendant argues that the claim for punitive damages should be stricken from the first and third causes of action.
A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted “with oppression, fraud and malice” toward plaintiff are insufficient legal conclusions to show that the plaintiff is entitled to an award of punitive damages. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872. Specific factual allegations are required to support a claim for punitive damages. Id.
Under Civil Code section 3294, a plaintiff may recover an award of punitive damages on a showing that the defendant acted with malice, oppression, or fraud. Civil Code section 3294 defines these terms in the following manner. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
The Plaintiff’s first cause of action is for fraud. A properly pleaded fraud claim will itself support recovery of punitive damages. Stevens v. Sup.Ct. (St. Francis Med. Ctr.) (1986) 180 Cal.App.3d 605, 610. The Defendant did not demur to the first cause of action. Since the first cause of action is a properly plead fraud claim, it supports the request for punitive damages.
The Plaintiff’s third cause of action is for conversion. The Plaintiff alleges that the Defendant engaged in conduct intended to cause injury to the Plaintiff by wrongfully taking her property without her consent. The allegations plead malice, which is supports the claim for punitive damages.
Accordingly, there are no grounds to strike the claims for punitive damages because the pleadings contains sufficient facts to support the claims.

c. Verification
The Defendant then requests that the Court strike the Plaintiff’s signature from the verification. The verification states “I, William Lee, state and declare” that he has read the attached Verified Second Amended Complaint and that the matters stated in it are true, except as to matters that are stated on information and belief.
The verification is signed by William Lee on a signature line that identifies him as “Declarant – William Lee”. Below the signature line, there is the signature of Angela Quon.
The signature of Angela Quon is improper because she did not state that she had read the attached pleading and that the matters stated in it are true under penalty of perjury. Accordingly, the Court will strike the signature of Angela Quon because she cannot sign the verification of William Lee.

RULINGS:
Overrule demurrer to third cause of action.
Strike signature of “Angela Quon” from verification.
Deny rest of motion to strike.

MOTIONS TO COMPEL
DISCOVERY RESPONSES

Calendar: 8
Case No: EC061888
Date: 10/31/14

MP: Defendant, Joseph Lee
RP: Plaintiffs, William Lee and Angela Quon

RELIEF REQUESTED:
1. Order compelling Plaintiff, William Lee, to serve responses to the Defendant’s form interrogatories; order imposing monetary sanctions of $2,060.
2. Order compelling Plaintiff, William Lee, to serve responses to the Defendant’s special interrogatories; order imposing monetary sanctions of $2,060.
3. Order compelling Plaintiff, William Lee, to serve responses to the Defendant’s requests for production interrogatories; order imposing monetary sanctions of $2,060.
4. Order compelling Plaintiff, Angela Quon, to serve responses to the Defendant’s form interrogatories; order imposing monetary sanctions of $2,060.
5. Order compelling Plaintiff, Angela Quon, to serve responses to the Defendant’s requests for production interrogatories; order imposing monetary sanctions of $2,060.

CHRONOLOGY:
Discovery Served: August 5, 2014
Responses Served: October 7, 2014.

DISCUSSION:
The Defendant, Joseph Lee, filed five motions to seek order to compel responses to his interrogatories and requests for production from the Plaintiffs. The motions are moot because the opposition papers state that the discovery responses were served on October 7, 2014. Accordingly, the Court will take the five motions for discovery orders off calendar as moot.

In addition, the Defendant requested that the Court impose a total of $10,300 in monetary sanctions in his motions to compel responses. Under CCP sections 2030.290 and 2031.300 the Court may impose a reasonable amount of monetary sanctions on a party unless the Court found that sanctions are unjust in the circumstances.
The opposition papers contain the declaration of the Plaintiff’s counsel, Emahn Counts. Mr. Counts states that he sought an extension of time on September 8, 2014 and on September 26, 2014. Mr. Counts states that he received no response to his first request and that the Defendant’s counsel refused to offer any extension in response to his second request. Mr. Counts states that he had asked for an extension through October 7, 2014.
The Plaintiffs then served the responses by mail on October 7, 2014. The Defendant served his motions on the same date, October 7, 2014.
This reveals that the Defendant could have avoided incurring the fees and costs for these motions if he had provided an extension. There is no legitimate basis for declining to offer an extension because there is no trial date and the case management conference is set for November 4, 2014. Further, the Plaintiffs had advised the Defendant that they were serving responses and merely needed additional time.
It is a central precept to the Civil Discovery Act of 1986 that civil discovery be essentially self-executing. Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1291-1292. A self-executing discovery system is “one that operates without judicial involvement.” Id. Conduct frustrates the goal of a self-executing discovery system when it requires the trial court to become involved in discovery because a dispute leads a party to move for an order compelling a response. Id.
Here, the Defendant frustrated the goal of the self-executing discovery system by seeking to involve the trial court in a dispute that could and should have readily been resolved informally. In these circumstances, where the Plaintiffs sought a extension to serve the discovery responses and then served then by the requested date, it is unjust to impose monetary sanctions on the Plaintiffs for attorney’s fees and costs that the Defendant incurred unnecessarily.
Accordingly, the Court will deny the Defendant’s requests for monetary sanctions in his motions.

RULING:
Deny all five motions in their entirety.