Barang Seng vs. Brian D. Mckay

Demurrer to Amended Complaint

Cal. Super. - 4th Dist.June 19, 2017

Oo 0 9 nn R W BN O N N N N N N N N = m e m m e m m m oe m e m e m pe pe 0 I O N nn RA W N = O O 00 NN RE W N --= Andrew D. Weiss SBN 121149 LAW OFFICES OF ANDREW D. WEISS ELECTRONICALLY FILED 26459 Rancho Parkway South Superior Court of Califarnia, Lake Forest, California 92630 County of Orange Telephone: (949) 360-9478 12/01/2017 at 04:38:00 PI Facsimile: (949) 360-0302 Email: oclawadw@aol.com Attorney for Defendant and Cross-Complainant Brian D. McKay individually and as Trustee of the Brain D. McKay Trust Clerk of the Superior Court By Danielle Jurado, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER BARANG SENG, aka BRYAN SENG, an Case No: 30-2017-00926970 individual, Date: April 9, 2018 Time: 10:30 a.m. Plaintiff, Dept. C26 [Reservation No. 72708667] NOTICE OF HEARING; DEMURRER TO FIRST AMENDED COMPLAINT; BRIAN D. MCKAY, an Individual; BRIAN D. MEMORANDUM OF POINTS AND MCKAY, as Trustee for the BRIAN D. MCKAY AUTHORITIES IN SUPPORT TRUST; for unknown; and DOES 1 - 10, THEREOF inclusive, Assigned for All Purposes Defendants. Hon. Gregory H. Lewis Dept. C26 Date Filed: June 19, 2017 Trial Date: None Set AND RELATED CROSS-ACTION TO ALL PARTIES HEREIN AND THEIR ATTORNEYS OF RECORD: YOU ARE HEREBY NOTIFIED that a hearing will be held on the Demurrer of defendant, Brian D. McKay, individually and as Trustee of the Brain D. McKay Trust, to the First Amended Complaint in the above-captioned action. The hearing will be held on April 9, 2018, 2017 at 10:30 a.m. or as soon 1 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof SS WO 0 NN ON Un bh W N BN O N N N N O N N N N N =m e m e m e m em e m e m em e m oe s 0 I NN nh BA W N = O YW N O N RAN W O N thereafter as the matter may be heard. The hearing will be held in Department C26 of the above-named court. The basis of the Demurrer is set forth more specifically in the attached Demurrer. This Demurrer is based upon this notice, the Demurrer, and TS of points and authorities attached hereto, the pleadings and records on file herein and upon such evidence and argument as may be presented to the Court at the hearing on the Demurrer. LAW OFFICES OF ANDREW D. WEISS Dated: December 1, 2017 By es Afdtew D. Weiss Attorney for Defendant Brian D. McKay individually and as Trustee of the Brain D. McKay Trust L:\FileCenter\Open Cases\McKay 2\WP\Pleadings\Demurrer to FAC.wpd 2 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof oo 00 93 O N Wn hs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMURRER Defendant demurs to the First Amended Complaint by as follows: DEMURRER TO THE FIRST CAUSE OF ACTION The First Cause of Action of the First Amended Complaint fails to state facts sufficient to constitute a cause of action, is uncertain and fails to specify whether the contract is written or oral. The First Cause of Action of the First Amended Complaint is also barred by the statute of frauds. DEMURRER TO THE SECOND CAUSE OF ACTION The Second Cause of Action of the First Amended Complaint fails to state facts sufficient to constitute a cause of action for fraud in that Plaintiff fails to specifically allege the when and how, whether written or oral, and the alleged representations made. DEMURRER TO THE THIRD CAUSE OF ACTION The Third Cause of Action of the First Amended Complaint fails to state facts sufficient to constitute a cause of action for negligent misrepresentation in that an alleged false promise does not support a cause of action for negligent misrepresentation. DEMURRER TO THE FIFTH CAUSE OF ACTION The Fifth Cause of Action of the First Amended Complaint fails to state facts sufficient to constitute a cause of action for conversion by failing to specify the property converted. DEMURRER TO THE SIXTH CAUSE OF ACTION The Sixth Cause of Action of the First Amended Complaint fails to state facts sufficient to constitute a cause of action for trespass to chattles by failing to specify the property converted and by failing to allege a mere interference with possession. DEMURRER TO THE SEVENTH CAUSE OF ACTION The Seventh Cause of Action of the First Amended Complaint fails to state facts sufficient to constitute a cause of action for claim and delivery by failing to specify personal property subject to the claim and by alleging the personal property is not in Defendant’s possession. 3 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof Oo 0 N N O N wn hs W N - n o N o N o N o No N o No N o [3 S] - nn -_- ed - pt - -_- J n - o o ~ [@ ) wy + Ww No - oO \ O o o ~ [@ ) wn ES N Ww No - oS WHEREFORE Defendant prays that this Demurrer be sustained and Plaintiff take nothing by the First, Second, Third, Fifth, Sixth and Seventh Causes of Action of the First Amended Complaint. LAW OFFICES OF ANDREW D. WEISS Dated: December 1, 2017 By: Andrew D. Weiss Attorney for Defendant Brian D. McKay individually and as Trustee of the Brain D. McKay Trust . 4 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof No OO 00 NN S N wn A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. FACTUAL AND PROCEDURAL BACKGROUND. This action arises out of the lease of real property. Defendant, Brian D. McKay, trustee of the Brian D. McKay Trust, is the owner of a parcel of property (“Property”) in Cypress, California. Defendant leased (“Lease”) the Property to Timothy J. Williams and Holly Williams in 1997 for a period of 29 years. (FAC Exhibit B.) The Lease was subsequently modified to, inter alia, extend the term. (/d.) The Lease was eventually assigned to Plaintiff, who in turn assigned the Lease to Clarence Xu. (FAC p. 4 Ins. 6 - 21 and Exhibit A.) Clarence Xu defaulted on the Lease and was evicted. (FAC p. 16 - 18.) Plaintiff alleges Defendant entered into a contract, and otherwise promised, to reassign the Lease to Plaintiff. However, the April 11, 2016, email by Plaintiff’s counsel confirms the only agreement discussed was the assignment of an unlawful detainer cause of action. (FAC Exhibit C.) Plaintiff further alleges Defendant converted or otherwise interfered with some unspecified personal property. Plaintiff voluntarily amended his Complaint after meeting and conferring with Defendant pursuant to Section 430.41 of the Code of Civil Procedure. Plaintiff attempted to file a Second Amended Complaint on November 1, 2017, after a further meeting and conferring. The Second Amended Complaint was rejected by the Court as it was submitted without leave of Court. Plaintiff has not resubmitted his Second Amended Complaint, sought leave of Court to file the Second Amended Complaint or proposed a stipulation for filing his Second Amended Complaint since November 1, 2017. Defendant now demurrers to Plaintiffs First Amended Complaint. 2. THIS DEMURRER TO THE FIRST CAUSE OF ACTION SHOULD BE SUSTAINED IN THAT THE FIRST CAUSE OF ACTION FAILS TO STATE FACTS SUFFICIENT TO ESTABLISH THE FORMATION OF A CONTRACT AND IS VAGUE AND AMBIGUOUS. An action founded on a contract is subject to demurrer if it fails to state facts sufficient to state a cause of action, is uncertain or it cannot be ascertained whether the contract was oral or written. (C.C.P. §430.10(e), (), and (g).) 5 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof © 00 NN NN nn RA W N N N N N N N N N N m m es em em e e = e m XN N A N A W N = O 0 N N N B R A W N = O In paragraph 11 of the First Amended Complaint, Plaintiff alleges his counsel had a conversation with Defendant which was later confirmed by an email. (FAC p. 4 Ins. 17 - 21.) First, Plaintiff fails to allege that his counsel had authority to bind him to a contract. Without such authority, neither Plaintiff nor Defendant could be bound by the conversation. Second, the terms of the contract are not sufficiently alleged. “Under basic contract law ‘[a]n offer must be sufficiently definite, or must call for such definite terms in the acceptance that the performance promised is reasonably certain.” ‘Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770 (citations omitted).) Here, Plaintiff alleges that the parties agreed Plaintiff would receive an assignment of “rights as to the Lease” in exchange for $12,276.82 of unpaid rents. (FAC p. 4 Ins. 17 - 21.) The specific rights assigned are not specified. However, Plaintiff goes on to allege he “would then take over the lease and rights its (sic) obligations.” (I/d.) Plaintiff does not specify whether he would take over the Lease with, or without, the November 17, 2004, Modification of Lease, attached as part of Exhibit B to the First Amended Complaint. The alleged agreement is also silent on whether Plaintiff would be liable for the assignment fee required by Section 7.02 of the Lease. (FAC Exhibit B p. 11 97.02.) Paragraph 7.02 of the Lease requires the payment of a $10,000.00 assignment fee if the Lease is assigned after September 30,2006. (Id) However, the November 17, 2004, Modification of Lease, increases the assignment fee to $20,000.00. (FAC Exhibit B 42.) Plaintiff’s reference to Exhibit C further increases the abmiguity of the alleged agreement. Exhibit C to the First Amended Complaint is an email from Plaintiff’s attorney, Rick Blake, to Defendant. (FAC Exhibit C.) The email refers only to “unpaid rents due” without specifying an amount. (FAC Exhibit C.) More significantly, the email specifically states the unpaid rent is being paid “for the assignment of rights to the unlawful detainer action against the current tenant.” (/d.) The email continues that the intent is to permit Plaintiff to “pursue unpaid rent” against the current tenant. (/d.) 6 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof OO 0 NN S Y wn ks W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 97 28 “The general rule is that when a written instrument which is the foundation of a cause of action or defense is attached to a pleading as an exhibit and incorporated into it by proper reference, the court may, upon demurrer, examine the exhibit and treat the pleader's allegations of its legal effect as surplusage.” (Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 785-786.) As the written email only contemplates the assignment of the unlawful detainer action, at most, Plaintiff is limited to a claim for breach of an agreement to assign the unlawful detainer action. Even then, however, no complete agreement is alleged. The email contemplates the parties will enter into a writen assignment. (FAC Exhibit C.) Plaintiff fails to allege any written assignment was ever executed. Further, Plaintiff alleges that no breach of the alleged contract occurred. Plaintiff alleges as Paragraph 14, that the Defendant advised Plaintiff’s counsel that the then current tenant paid the past due rent. (FAC p. 4 Ins. 27 - 28.) Plaintiff does not allege that Defendant’s statement was not correct. If Plaintiff only had an agreement to pursue the unpaid rents as part of an assignment of an unlawful detainer action, and the tenant paid the past due rent, there no longer existed an unlawful detainer cause of action to assign. Third, Plaintiff fails to specify if the alleged contract is oral or written. As discussed above, the terms of the alleged oral discussion between Plaintiff's counsel and Defendant are significantly different from the terms specified in the April 11, 2017, email attached as Exhibit C to the First Amended Complaint. 3. THIS DEMURRER TO THE FIRST CAUSE OF ACTION SHOULD BE SUSTAINED IN THAT THE STATUTE OF FRAUDS RENDERS THE ALLEGED CONTRACT UNENFORCEABLE. The statute of frauds requires a lease for a term in excess of one year to be in writing signed by the defendant. (C.C. §1624(a)(3).) Further, if the agreement is made by an agent, such as Plaintiff’s attorney, the agent’s authority must be in a writing signed by the principal. (/d.) “1624. (a) The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party s agent: 7 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof OO 0 N N N Wn B R A W N N N N N N N N N N r m e m e m em e m e m md ee e d 00 N N Un kA W N = O O N N N RAR W N = O * kk (3) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged.” The Lease attached as Exhibit B to the First Amended Complaint is for a period of 29 years, commencing December 1, 1997, and terminating on December 1,2026. (FAC ExhibitBp.1§1.01.) The Modification of Lease extended the term to December 1, 2034.) (FAC Exhibit B, Modification § 1.04.) On April 11, 2011, the date of the alleged contract, the remaining term of the Lease was approximately 15 years, and the remaining term of the Lease as modified was approximately 23 years. As the remaining term of the Lease and Lease, as modified, exceeded one year, no assignment of the Lease was valid unless it was in a writing signed by Defendant. As no signed writing has been alleged, the contract for an assignment of the Lease is invalid, and the First Cause of Action fails to state facts sufficient to state a cause of action. When a demurrer is sustained, the plaintiff has the burden of proving the ability to amend the complaint to state a valid cause of action. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Unless, Plaintiff establishes the ability to allege a signed written contract for the assignment of the Lease, the demurrer to the First Cause of Action should be sustained without leave to amend. 4. THIS DEMURRER TO THE SECOND CAUSE OF ACTION FOR FRAUD SHOULD BE SUSTAINED IN THAT THE SECOND CAUSE OF ACTION FAILS TO STATE A CAUSE OF ACTION FOR FRAUD. Plaintiff has failed to allege sufficient facts to state a cause of action for fraud. A cause of action for fraud requires pleading of the following elements: 1) A statement; 2) That is false; 3) Knowledge that the statement is false; 4) Intent to deceive; 8 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof OO 00 3 O&O wn sr WwW BN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5) Reasonable reliance; and, 6) Resulting damage. (5 Witkin California Procedure (5" Ed.) Pleading § 710). Fraud actions have been considered disfavored. (5 Witkin California Procedure (5™ Ed.) Pleading §711). Each element of a fraud cause of action must be plead with specificity. (Id.) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 (citations omitted)). “Plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (/d. (citations omitted)). The general policy of liberal construction does not apply to sustain a defective cause of action for fraud. (Cooper v. Equity Gen. Insurance (1990) 219 Cal.App.3d 1252, 1262.) In paragraph 11 of the First Amended Complaint, Plaintiff alleges that his counsel, presumably, Rick Blake, had a conversation with Defendant, and sent an email to Defendant, “on or about April 11, 2016” which formed the basis for a contact. (FAC p. 4 Ins. 17 - 21.) In paragraph 14 of the First Amended Complaint, Plaintiff again alleges his counsel communicated with Defendant about the alleged contract. (FAC p. 4 Ins. 27 - 28.) In paragraph 16 of the First Amended Complaint, Plaintiff alleges further communications between his counsel and Defendant, on unspecified dates for approximately one year after April 11, 2016. (FAC p. 5 Ins. 5 - 8.) The allegations in paragraphs 11, 14 and 16 are incorporated into the Second Cause of Action for fraud by paragraph 25. (FAC p. 6 Ins. 16 - 17.) Despite alleging all communications regarding the alleged contract occurred between Plaintiff’s counsel and Defendant, including the email attached as Exhibit C to the First Amended Complaint, Plaintiff seeks to contradict those allegations in other paragraphs in the Second Cause of Action. In paragraph 26, Plaintiff alleges that on April 11, 2016, Defendant falsely represented to Plaintiff that, “in exchange for past rents, Plaintiff would receive an assignment of the rights and obligations of the lease.” 9 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof OO 0 39 ON nn A W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (FAC p. 6 Ins. 18 - 20.) The allegation fails to state whether the representation was made in writing or orally. Further, the allegation in paragraph 26 contradicts the confirming email sent by Plaintiff’s counsel to McKay on April 11, 2016, and attached as Exhibit C to the First Amended Complaint. (FAC Exhibit C.) In Exhibit C, Plaintiff’s counsel states the representation was that Plaintiff would receive “rights to the unlawful detainer action against the current tenant.” (FAC Exhibit C.) “If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence”. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.) In paragraph 27 Plaintiff alleges that Defendant represented that when the tenants were evicted, Defendant would assign the lease to Plaintiff. (FAC p. 6 Ins. 21 - 22.) Plaintiff fails to allege how the representation was made, or when the representation was made. Finally, in paragraph 28, Plaintiff alleges that on several unspecified occasions between January of 2016 and May of 2017, Defendant represented that when the tenants were evicted, Defendant would assign the lease to Plaintiff. (FAC p. 6 Ins. 23 - 25.) The alleged representation in paragraphs 27 and 28 are the same. It is unclear what distinction Plaintiff is attempting to make between the two paragraphs. In any event, Plaintiff again fails to allege how the representations were made, whether in writing or orally, or the specific dates on which the representations was made. 5. THIS DEMURRER TO THE THIRD CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION SHOULD BE SUSTAINED IN THAT THE THIRD CAUSE OF ACTION FAILS TO STATE A CAUSE OF ACTION FOR FRAUD. Plaintiff has failed to allege sufficient facts to state a cause of action for negligent misrepresentation. A cause of action for “negligent misrepresentation must ordinarily be as to past or existing material facts.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158.) A “promise to perform at some future time” does not support a cause of action for negligent misrepresenation. (Id.) In Tarmann, plaintiff alleged State Farm promised to pay for repairs to her vehicle “‘immediately upon completion of those repairs.” (Id. at 156.) In sustaining a demurrer to plaintiff's cause of action 10 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof © 0 N N N nn Bs W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for negligent misrepresentation, the Court in Tarmann held that an alleged false promise can only be actual fraud. The Court reasoned that in order to be a false statement of fact, a the promisor must have intended not to perform at the time the promise was made. (/d. at 159.) The Court declined “to establish a new type of actionable deceit: the negligent false promise.” (/d.) The only alleged misrepresentation supporting Plaintiff’s Third Cause of Action for negligent misrepresentation is Plaintiff's allegation that Defendant did not intend to perform a promise to assign the Lease to Plaintiff after Defendant evicted the then current tenants. (FAC p. 7 Ins. 24 - 26.) As a false promise cannot support a claim for negligent misrepresentation, this demurrer to the Third Cause of Action should be sustained without leave to amend. 6. THIS DEMURRER TO THE FIFTH CAUSE OF ACTION FOR CONVERSION AND SIXTH CAUSE OF ACTION FOR TRESPASS TO CHATTEL SHOULD BE SUSTAINED IN THAT THOSE CAUSES OF ACTION FAIL TO IDENTIFY ANY PROPERTY SUBJECT TO CONVERSION OR TRESPASS. Conversion is any act of dominion and control wrongfully exerted over the personal property of another. (Gruber v. Pacific States Sav. & Loan Co. (1939) 13 Cal.2d 144, 148; and 5 Witkin Summary of California Law (10™ Ed.) Torts §699.) The tort of conversion requires “the defendant’s hostile act of dominion or control over a specific chattel to which the plaintiff has the right of immediate possession. (PCO Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) Plaintiff has asserted only the conclusory allegation that Defendant interfered with Plaintiff’s property without specifying any specific property that was converted. (FAC p. 8 Ins. 25-27.) The mere conclusory allegation is not sufficient to state a cause of action for conversion. Described as “the ‘little brother of conversion,’ the tort of trespass to chattels allows recovery for interferences with possession of personal property ‘not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered’.” (Jamgotchian v. Slender (2009) 170 Cal. App.4th 1384, 1400.) Plaintiff’s cause of action for trespass to chattel’s suffers from the same deficiency as Plaintiff's Cause of Action for conversion. Plaintiff merely 11 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof OO 00 3 O&O Wn hb W W N = N O N DN N N O N N N RN mm m m e m o e m pe w pe d m m md e m 0 NN A A LL A W N = O O 0 N N N R W = O alleges Defendant “interfered with Plaintiff’s rights to his personal property” without specifying any specific personal property. (FAC p. 9 Ins. 12 - 14.) Further, Plaintiff does not allege a mere interference. Plaintiff alleges Defendant disposed of the property through an “unauthorized sale and/or transfer.” (FAC p- 9 Ins. 16 - 20.) The disposal or sale of Plaintiff’s personal property is not a mere interference with possession. Rather such action would constitute an action of dominion and control warranting a claim for conversion. 1: THIS DEMURRER TO THE SEVENTH CAUSE OF ACTION FOR CLAIM AND DELIVERY SHOULD BE SUSTAINED IN THAT THOSE CAUSES OF ACTION FAIL TO IDENTIFY ANY PROPERTY SUBJECT TO CONVERSION OR TRESPASS. Plaintiff has failed to state a cause of action for claim and delivery by failing to identify the specific personal property subject to the claim and by alleging Defendant no longer has possession of the unspecified personal property. “Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property (created, most - by a contractual lien) may recover possession of that specific property before judgment. (See current § 511.010, et seq. [Claim and Delivery of Personal Property].)” (Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271 (brackets in original).) Plaintiff has failed to identify a specific item of personal property. Instead, Plaintiff makes the same general allegation that Defendant interfered with Plaintiff’s rights to unspecified personal property. (FAC p. 9 Ins. 26 - 28.) Plaintiff only generally describes the property as “furniture, fixtures, and equipment that is/was located at the Subject Property.” (FAC p. 10 Ins. 1 - 2.) The First Amended Complaint also fails to identify when the interference occurred. The failure to specifically identify the specific personal property is important in this action as Plaintiff alleges he did not occupy the Subject | Property. Plaintiffalleged at paragraph 9 of the First Amended Complaint, that, at some unspecified time, Plaintiff assigned his right to possession of the Lease to Clarence Xu. (FAC p. 4 Ins. 11 - 12.) Without 12 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof H O W N OO 00 I O&O Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 some specificity of the personal property subject to the claim, it is not possible for Defendant to determine what personal property belonged to Clarence Xu and what personal property Plaintiff’s now claims was his. A second problem with the claim and delivery cause of action is the lack of a remedy. The remedy in a cause of action claim and delivery is the recovery of the personal property. (Wafer Internat. Corp. v. Khorsandi at 1271 and C.C. § 511.010, ef seq.) Plaintiff alleges Defendant disposed, sold or transferred the Plaintiff’s unspecified personal property. (FAC p. 10 Ins. 5 - 10.) As Plaintiff alleges Defendant no longer has possession of Plaintiff’s personal property, the remedy available in a claim and delivery cause of action is not available. 8. CONCLUSION. For all the foregoing reasons, this demurrer should be sustained. LAW OFFICES OF ANDREW D. WEISS Dated: December 1, 2017 B y: Gm “Andrew D. Weiss Attorney for Defendant Brian D. McKay individually and as Trustee of the Brain D. McKay Trust L:\FileCenter\Open Cases\McKay 2\WP\Pleadings\Demurrer to FAC.wpd 13 Notice of Hearing; Demurrer to First Amended Complaint; Memorandum of Points and Authorities in Support Thereof ok . SOS OO wv 9 O N n n se W N N O N N N N N N O R N m mm r m m m e m e m p m e e e e 00 NN O N LL BA W N = O VO N N N n l x W N PROOF OF SERVICE 1013a (3) CCP STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 26459 Rancho Parkway South, Lake Forest, California 92630. On December 1, 2017, at 4 2-7 3pm. I served the foregoing document described as: NOTICE OF HEARING; DEMURRER TO FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action as follows: Rick A. Blake BLAKE & AYAZ, A Law Corporation 2107 N. Broadway, Suite 106 Santa Ana, CA 92706 Telephone: (714) 667-7171 Facsimile: 714) 667-0477 Email: abclaw@rablake.com Attorneys for Plaintiff Barang Seng aka Bryan Seng X_ By Electronic Service On the interested parties in this action through electronic service pursuant to Rule 2.251 of the California Rules of Court. The electronic service was made by email from oclawadw(@aol.com, to the email addresses listed above. Executed on December 1, 2017, at Lake Forest, California. 1 declare under penalty of perjury under the laws of the State of California that the above is true and correct. ew D. Weiss