Four Season Care, Inc. vs. Dong Shin Church of California, Inc.

Demurrer to Amended Complaint

Cal. Super. - 4th Dist.June 20, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Christopher E. Delaplane, Esq. Of Counsel [SBN 253073] DELAPLANE LAW GROUP, APC 16501 Ventura Boulevard, Suite 610 Encino, California 91436 Telephone No.: (818) 721-8881 Facsimile No.: (818) 817-6910 Email: ced@delaplanelaw.com Attorney for Defendants, DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC., YOUNG WUK KANG, and DONG KYU HWANG SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER FOUR SEASON CARE, INC., a California ) Case No: 30-2018-01000404-CU-BC-CJC corporation; and YOUNG KIN KO aka DAVID ) Filed on June 20, 2018 KO, an individual, ) Assigned to Hon. Deborah Servino ) Dept.: C21 Plaintiffs, ) ) NOTICE OF DEMURRER AND Vs. ) DEMURRER OF DEFENDANTS DONG ) SHIN CHURCH OF SOUTHERN DONG SHIN CHURCH OF CALIFORNIA, ) CALIFORNIA, INC. TO FIRST INC., a California Corporation; ) AMENDED COMPLAINT; YOUNG WUK KANG, an individual; DONG ) MEMORANDUM OF POINTS AND KYU HWANG, an individual; and DOES 1 ) AUTHORITIES AND DECLARATION through 50, inclusive, ) OF CHRISTOPHER DELAPLANE IN ) SUPPORT THEREOF Defendants. ) ) Date: January 11, 2019 ) Time: 10:00 a.m. ) Dept.: C21 ) ) [FILED AND SERVED CONCURRENTLY WITH ) DEFENDANT’S REQUEST FOR JUDICIAL ) NOTICE] ) ) [RESERVATION NUMBER 72937071] TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:PLEASE TAKE NOTICE that on January 11, 2019, at 10:00 a.m., or as soon thereafter ascounsel may be heard, in Department C21 of the above-entitled Court, located at 700 Civic Center1NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OFSOUTHERN CALIFORNIA, INC. TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Drive West, Santa Ana, California 92701, Defendant DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC. (“Moving Party”) will, and hereby does, demurto the First Amended Complaint (“FAC”) of Plaintiffs FOUR SEASON CARE, INC. and YOUNG JIN KO aka DAVID KO (collectively “Plaintiffs”) on the following grounds: DEMURRER TO THE FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT I. The Complaint fails to state facts sufficient to constitute a cause of action for Breach of Contract. (Code Civ. Proc., § 430.10, subd. (¢).) 2. The cause of action for Breach of Contract is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) DEMURRER TO THE SECOND CAUSE OF ACTION FOR SPECIFIC PERFORMANCE 3. The Complaint fails to state facts sufficient to constitute a cause of action for Specific Performance. (Code Civ. Proc., § 430.10, subd. (¢).) 4. The cause of action for Specific Performance is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) This Demurrer was scheduled for the Court’s first available hearing date after counsel for Moving Parties attempted, in good faith, to meet and confer with Plaintiffs’ counsel pursuant to Civil Code section 430.41. (See Declaration of Christopher E. Delaplane.) This Demurrer is made pursuant to Code of Civil Procedure, section 430.10, and will be based on this Notice, the attached Demurrer, the attached Memorandum of Points and Authorities, as well as any further oral or documentary evidence that may be permitted at the time of the hearing of this Demurrer. Dated: November 28, 2018 DELAPLANE LAW GROUP, APC al a FILE Christopher E. Delaplane, Esq. Attorney for Defendants, DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC., YOUNG WUK KANG, and DONG KYU HWANG 2 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC. TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS & AUTHORITIES I. INTRODUCTION Plaintiffs bring this lawsuit to, among other things, force the sale of real property owned by Moving Party. However, Plaintiffs lack an enforceable contract to sustain causes of action for specific performance and breach of contract. As such, Moving Party requests that the Court sustain its demurrer, in its entirety and without leave to amend. II. SUMMARY OF FACTS On or about September 14, 2012, Moving Party entered into a lease agreement with Plaintiffs for four properties located at 2442, 2450, 2456 and 2460 Almira Avenue, Fullerton, California (“Almira Property”). (FAC, IT 16.) The following relevant terms are found in the lease agreement attached to the Complaint as Exhibit 1: ° Lease term to be 5 years (Exhibit 1, § 2); ° Use of Almira Property was for “operation of a Homestay” (Exhibit 1, § 42); ° Tenant was provided “one five (5) years (sic) option to extend” (Exhibit 1, § 42); and ° The monthly rent was reduced from $14,000 to $12,000 since Plaintiffs performed the repairs to the Almira Property (Exhibit 1, § 45). In or around March 19, 2013, Plaintiffs’ former attorney sent a letter to Moving Party regarding an issue relating to the zoning of the Almira Property. (FAC, IT 19.) In the letter, which is attached as Exhibit 2 to the Complaint, the attorney acknowledges that that lease agreement contains a “ten year term (5 years plus 5 year option).” (Exhibit 2, p. 2.) Subsequently, Plaintiffs and Moving Party engaged in conversations relating to the sale of the Almira Property. (FAC, IT 21.) During these conversations, Defendant YOUNG WUK KANG allegedly made representations that (1) Plaintiffs could purchase the Almira Property for $2,350,000 with an agreement that $240,000 would be credited towards the purchase price as reimbursement of the construction costs previously incurred; and (2) in order to sell the Almira Property, the properties needed to be re-zoned. (FAC, IT 21.) Based upon these representations, Plaintiffs agreed to perform the zoning and repairs on the properties and provided a down payment of $300,000 to Plaintiffs. (FAC, I122.) 3 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC. TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On or about July 1, 2013, a letter (“Jul 2013 Memorandum”) was prepared that purportedly memorialized the agreement between the parties concerning the sale of the Almira Property. (FAC, IT 31.) Per the terms ofthis letter, Plaintiffs were to purchase the Almira Property by no later than December 31, 2016. (FAC, IT 30.) On or about January 31, 2014, Plaintiffs paid an initial deposit of $300,000. (FAC, IT 29.) However, the July 2013 Memorandum stated the deposit was to be $400,000. Plaintiffs contend that the parties agreed to reduce the amount to $300,000, yet Plaintiffs have produced no writing reflecting such an amendment. (/bid.) In or around April 2014, City of Fullerton city council issued a resolution approving a general plan revision to change the Almira Property from “religious institution” to “low density residential.” (FAC, I1 24.) On October 15, 2014, Moving Party sent Plaintiffs a letter concerning the sale of the Almira Property. (FAC, IT 25.) This letter contained the following relevant statements: The matter of sale of property was approved per the resolution reached at an officers’ meeting, and it was an As-is condition based sale according to the Intent to Purchase that you had submitted...we would like to inform you at this juncture that no furtherprice reduction will bepossible. (Exhibit 5.) (Emphasis Added.) Notwithstanding the lack of an agreement on the substantive terms of Plaintiff’s purchase of the Almira Property, Plaintiffs continued with the subdivision of the Almira Property, which was not “substantially completed” until December 1, 2017. (FAC, IT 33.) On or about January 3, 2018, Moving Party initiated an unlawful detainer action against Plaintiffs for failure to vacate the Almira Property after expiration of the Lease Agreement. (FAC, IT 34.) After a multi-day bench trial, the court issued a Statement of Decision in favor of Plaintiffs. (See Request for Judicial Notice, Exhibit A.) In its decision, the court noted that the present civil case provided a “better forum for the parties to address the complexities of the relationship they created and perhaps to litigate in [this] venue the validity of their various agreements.” (/d. at p. 8:16-20.) 11 4 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OFSOUTHERN CALIFORNIA, INC. TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On or about October 13, 2018, the Court sustained Moving Party’s demurrer to Plaintiffs’ original complaint, specifically as to the First Cause of Action for Breach of Contract and the Second Cause of Action for Specific Performance. (See Request for Judicial Notice, Exhibit B.) In its tentative ruling, the Court noted that the aforementioned causes of action were deficient as the Plaintiffs failed to allege that there was an actual agreement on the purchase price or an acceptance of terms by Moving Party. On November 26, 2018, Moving Party appealed the judgment entered against it in the unlawful detainer action. (See Request for Judicial Notice, Exhibit C.) III. STANDARD OF REVIEW Code of Civil Procedure §430.10 states in relevant part: “A party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in §430.30, to the pleading on any one or more of the following grounds: * kx (e) the pleading does notstate facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.” A demurrer may be taken where the objection appears on the face of the complaint or from any matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) In testing the sufficiency of the complaint, the Court will treat the demurrer as admitting all material facts, but not contentions, deductions or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the Court will disregard allegations that are contrary to law or facts and will attempt to “give the complaint a reasonable interpretation, reading it as a whole and its part in their context, to determine whether the complaint alleges facts sufficient to constitute a cause of action.” (Breneric Assoc. v. City of Del Mar (1998) 69 Cal.App.4th 166, 180.) Additionally, evidentiary facts contained within exhibits attached to the complaint can be considered by the Court on demurrer. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) A demurrer must be sustained without leave to amend if there is no opportunity for the defects to be cured by an amendment. (See Picton v. Anderson Union High School (1996) 50 Cal. App.4th 726; See also Edmond v. Secure Horizons (1997) 60 Cal. App.4th 96.) 5 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OFSOUTHERN CALIFORNIA, INC. TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. PLAINTIFFS CANNOT SUCCEED ON THEIR CAUSES OF ACTION FOR SPECIFIC PERFORMANCE AND BREACH OF CONTRACT AS THEY HAVE FAILED TO ESTABLISH THE EXISTENCE OF AN ENFORCEABLE CONTRACT In order to succeed on causes of action for specific performance and breach of contract, a plaintiff must first establish the existence of a valid contract between the parties. During the initial stages of a lawsuit, this requires a plaintiff to meet his or her burden of properly pleading the terms of the contract and establishing that the contract is legal. In this instance, Plaintiffs have not met either of these burdens. As such, Moving Parties’ demurrer to the First Cause of Action for Breach of Contract and Second Cause of Action for Specific Performance should be sustained, without leave to amend. A. Plaintiffs Have Failed to Properly Plead the Existence of a Contract with Moving Parties In order for a contract to be enforceable, the terms must be sufficiently definite. Under basic contract law “an offer must be sufficiently definite, or must call for such definite terms in the acceptance that the performance promised is reasonably certain. [Citation.] “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; See also Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623 [whether a contract term is sufficiently definite to be enforceable is a question of law for the court]; See also Taramind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal.App.3d 571, 575 [a specific performance cause of action requires the pleading of a contract sufficiently definite and certain in its terms to be enforced]; See also Apablasa v. Merritt & Co. (1959) 176 Cal.App.2d 719, 723 [an offer that is “so indefinite as to make it impossible for a court to decide just what it means, and to fix exactly the legal liability of the parties” cannot result in an enforceable agreement].) Additionally, for cases involving the purchase of real property, the California Supreme Court has held that the price to be paid is an essential term in the establishment of a contract. (Stockwell v. Lindeman (1964) 229 Cal.App.2d 750, 758 [emphasis added].) 6 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC. TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The FAC fails to meet the foregoing requirements, as it has failed to establish sufficiently definite terms for any agreement with Moving Party relating to the sale of the Property. Specifically, the FAC fails to properly allege that Plaintiffs and Moving Party had agreed on a purchase price. This is the same issue that was raised in Moving Party’s first demurrer, which was sustained by the Court. In their opposition to Moving Party’s demurrer to the Complaint, Plaintiffs alleged that the Moving Party agreed to sell the Almira Property for the sum of $2,350,000 along with a credit against the purchase price for reimbursement of construction costs incurred by Plaintiffs. (Opposition, p: 6:24-27, attached as Exhibit D to the Request for Judicial Notice.) However, Plaintiffs admitted that there was an outstanding matter that was not agreed upon as of October 15, 2014 - the amount of the construction cost credit. (Id. at p. 7:8-9.) Given the amount of the proposed credit - $240,000 or nearly 10% of the purchase price - this was a significant deal point that was, by Plaintiffs’ own admission, never finalized. California law has clearly held that the purchase price is an essential term in the sale of real property. (See Stockton, supra, 229 Cal.App.2d at 758 [“in a case involving sale of real estate the Supreme Court has held that the material factors to be ascertained from such a contract are: the seller, the buyer, the price to be paid, the time and manner of payment, and a sufficient description of the subject property”’].) In ruling on the demurrer, the Court found that the Complaint lacked sufficient pleading to establish an agreement between Plaintiffs and Moving Party on the purchase price for the Almira Property. In response to the Court sustaining Moving Party’s demurrer to the Complaint, Plaintiffs attempted to address the Court’s concern by attaching the July 2013 Memorandum.” However, the inclusion of this document does not provide any resolution on the issue of purchase price, as it pre- dates the October 15, 2014 letter from Moving Party, which specifically rejected Plaintiffs’ request ' The lack of agreement on the purchase price is also evident in Exhibit 5, wherein Defendants specifically reject a further reduction in purchase price. ? Plaintiffs have also referenced the Statement of Decision from the unlawful detainer action in an apparent attempt to remedy the defects in their previous pleading. However, any findings of fact in the unlawful detainer action cannot be considered binding upon this Court since the judgement has been appealed. (See Abelson v. National Union Fire Ins. Co. (1994) 28 Cal.App.4™ 776, 787 [“a judgment is not final for purposes of collateral estoppel while open to direct attack, e.g., by 7 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC. TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for further price reductions. Thus, the FAC has not remedied this issue. B. Plaintiffs Have Failed to Establish Unequivocal Acceptance of a Contract The FAC has failed to establish that Moving Party “unequivocally accepted” any offer from Plaintiffs for the sale of the Property. In order for an offer to be binding, the “offer must be unequivocally accepted.” (King v. Stanley (1948) 32 Cal.2d 584, 588.) As evidenced in the October 15, 2014 correspondence, Moving Party rejected Plaintiffs’ counter offer requesting a reduction in price. By rejecting this request, all previous offers were terminated. (See Apablasa, supra, 176 Cal.App.2d at p. 726 [“a counter offer containing a condition different from that in the original offer is a new proposal and, if not accepted by the original offeror, amounts to nothing]; See also Landberg v. Landberg (1972) 24 Cal.App.3d 742, 750 [the original offer is “terminated” after the conveyance of a counter offer].) Since the FAC is devoid of any factual basis to establish that any offer was unequivocally agreed upon by Moving Party, the offer alleged in the FAC is not binding upon Moving Party. C. Plaintiffs’ Alleged “Agreement” to Purchase the Almira Property is Unenforceable Under the Statute of Frauds Pursuant to Civil Code section 1624.3 subdivision (a)(3), a contract “for the sale of real property, or of an interest therein[,]” is invalid unless it is “in writing and subscribed by the party to be charged or by the party’s agent[.]” Absent a writing signed by your clients setting forth their right to purchase the Almira Property, your clients cannot succeed on any causes of action based upon an oral agreement to purchase. While your clients may allege part performance to take the agreement out of the Statute of Frauds, the mere payment of money is insufficient to make sure an argument. (See Anderson v. Stansbury (1952) 38 Cal.2d 707, 715-716.) Based upon the foregoing, Moving Parties respectfully request that the Court sustain their demurrer to the First Cause of Action for Breach of Contract and Second Cause of Action for Specific Performance without out leave to amend. 11 11 appeal”.] 8 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC. TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IX. CONCLUSION Based upon the foregoing, Moving Party hereby requests that this Court sustain its demurrer to the FAC,in its entirety and without leave to amend. Dated: November 28, 2018 DELAPLANE LAW GROUP, APC - a ILA Christopher E. Delaplane, Esq. Attorney for Defendants, DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC., YOUNG WUK KANG, and DONG KYU HWANG 9 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC. TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF CHRISTOPHER E. DELAPLANE I, Christopher E. Delaplane, declare as follows: I. I am an attorney at law, duly authorized to practice law in the State of California. I am an attorney with the law firm of Delaplane Law Group, APC, attorneys for Defendants DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC., YOUNG WUK KANG, and DONG KYU HWANG. I have personal knowledge ofthe facts as set forth in this declaration, and if called as a witness, I could and would competently testify thereto. 2. I am submitting this declaration pursuant to Code of Civil Procedure section 430.41, subdivision (a)(3). 3. On November 6, 2018, I sent Plaintiffs’ counsel, S. Calvin Myung, Esq., a meet and confer letter setting for the legal and factual basis for a proposed demurrer. 4. Om November 8, 2018, I received an email from Mr. Myung stating “Please proceed accordingly.” I declare under the penalty of perjury, by the laws of the State of California, that the foregoing is true and correct to the best of my knowledge. Executed this 28" day ofNovember 2018 at Encino, California. LOLA Christopher E. Delaplane 10 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC. TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action; my present address is: 16501 Ventura Blvd., Suite 610, Encino, California 91436. On November 28, 2018, I served the foregoing document described as NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC., YOUNG WUK KANG, and DONG KYU HWANG TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF CHRISTOPHER DELAPLANE IN SUPPORT THEREOF on the parties by placing a true copy thereof enclosed in a sealed envelope addressed as follows: S. Calvin Myung, Esq. LAW OFFICES OF S. CALVIN MYUNG 3700 Wilshire Blvd., Suite 500 Los Angeles, CA 90010 Telephone: (213) 382-3600 Facsimile: (213) 382-3636 Email: scalvinmyunglaw@gmail.com Attorneys for Plaintiffs, FOUR SEASON CARE, INC., a California corporation; and YOUNG JIN KO aka DAVID KO, an individual X BY MAIL as follows: Iam "readily familiar" with the firm's practice ofcollection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Encino, California in the ordinary course ofbusiness. ~~ BY OVERNIGHT EXPRESS DELIVERY. I deposited it in a box or other facility regularly maintained by GOLDEN STATE OVERNIGHT/FEDERAL EXPRESS or delivered it to a driver or courier authorized by GOLDEN STATE OVERNIGHT/FEDERAL EXPRESS to receive documents, in an envelope designated by GOLDEN STATE OVERNIGHT/FEDERAL EXPRESS, with deliver fees provided for, and with delivery requested for the next business day. Executed on November 28, 2018 at Encino, California. X (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (Federal) I declare that I am employed in the office of a member of the bar ofthis court at whose direction the service was made. Meriah Marie 11 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANTS DONG SHIN CHURCH OF SOUTHERN CALIFORNIA, INC. TO FIRST AMENDED COMPLAINT From: donotreply@occourts.org To: hri her Delaplan Subject: Superior Court of Orange County - Motion Reservation Request - CONFIRMATION Date: Wednesday, November 28, 2018 2:34:24 PM Superior Court of California, County of Orange RESERVE A MOTION DATE Your reservation request has been CONFIRMED by the Superior Court. The hearing date and time below has been reserved. You will be asked to provide your reservation number to the court at a later date. MOVING PAPERS MUST BE E-FILED WITHIN 24 HOURS AFTER COMPLETING THE ON-LINE RESERVATION. Failure to submit your moving papers within 24 hours will result in the automatic CANCELLATION of the reservation. NOTE: To EXPEDITE your MOTION filing place the appropriate Court Reservation number (e.g. 7XXXXXXX) on each Motion being submitted. Please do not reply to this email. Reservation Number: 72937071 Hearing Date: January 11, 2019 Hearing Time: 10:00 AM Department: C21 Motion Type: Demurrer to Amended Complaint Case Number: 30-2018-01000404-CU-BC-CIC Case Title: Four Season Care, Inc. vs. Dong Shin Church of California, Inc. Judicial Officer: Hon. Deborah Servino Email: ced@delaplanelaw.com Date of Request: November 28, 2018 Time of Request: 2:32 PM Transaction Number: 649991124 Superior Court of California County of Orange