Ben’s Asphalt & Maintenance Company, Inc vs. W&Z Development Corporation

I. Demurrer A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language’ (Code Civ. Proc., § 425.10, subd. (a)(1)) and will be upheld ‘ “so long as [it] gives notice of the issues sufficient to enable preparation of a defense.” ’ [Citation.]” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)

“[T]o withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law.’ [Citation.]” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.) “However, ‘ “[t]he fact that a party has alleged more than is required to justify his right does not obligate him to prove more than is essential, and the unnecessary allegations will be treated as surplusage unless the opposing party would be prejudiced.”” (Ibid.)

“No error or defect in a pleading is to be regarded unless it affects substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “The primary function of a pleading is to give the other party notice so that it may prepare its case [Citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Ibid.)

Here, Defendant demurs to the second cause of action for fraud.

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

“ ‘Promissory fraud’ is a subspecies of the action for fraud and deceit.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Ibid.; see also Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1414.)

“An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a contract.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [citing Chelini v. Nieri (1948) 32 Cal.2d 480, 487, 196 P.2d 915 (“tort of deceit” adequately pled where plaintiff alleges “defendant intended to and did induce plaintiff to employ him by making promises ... he did not intend to (since he knew he could not) perform” (fn. omitted))].)

“In such cases, the plaintiff's claim does not depend upon whether the defendant’s promise is ultimately enforceable as a contract.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “If it is enforceable, the [plaintiff] ... has a cause of action in tort as an alternative at least, and perhaps in some instances in addition to his cause of action on the contract.” (Ibid.) “Recovery, however, may be limited by the rule against double recovery of tort and contract compensatory damages.” (Ibid.)

Fraud causes of action must be pled with specificity. “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the false representations were made.” (State ex rel. Edelweiss Fund, LLC v. JPMorgan Chase & Co. (2023) 90 Cal.App.5th 1119, 1136–1137, as modified on denial of reh'g (May 30, 2023), review denied (Aug. 9, 2023) [internal citations omitted]; see also Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) “The complaint must plead the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” (Ibid.)

Here, the Court finds that Plaintiff has sufficiently stated a cause of action for fraud as alleged in paragraphs 28 to 34 of the SAC. Plaintiff alleges that “[a]t the time the Agreements were entered into in April of 2023,” “Western Pacific, by and through George Zeber and Ryan Zeber made oral communications with Plaintiff as well as by virtue of the Contract they entered assuring Plaintiff that Western Pacific would abide by the terms and conditions of the Contract, including

making all payments owed to Plaintiff.” (SAC, ¶ 29.) Plaintiff further states that to induce Plaintiff’s performance, “Western Pacific, by and through George Zeber and Ryan Zeber, continually stated on multiple occasions that payments would be made as agreed in order to induce performance on the part of the Plaintiff.” (Ibid.) Plaintiff provides specific examples of these alleged fraudulent inducements. (Ibid.)

Plaintiff also alleges that at the time Defendant made such promises, “Western Pacific and the Zebers had no intention of performing these promises.” (SAC, ¶ 30.) “The promises were made by Western Pacific, George Zeber, and Ryan Zeber with the intent to induce Plaintiff to enter into the Contract detailed herein.” (SAC, ¶ 31.)

“At the time the promises were made and at the time Plaintiff took the actions alleged herein, Plaintiff was ignorant of Western Pacific, George Zeber, and Ryan Zeber’s secret intention not to perform, and could not, in the exercise of reasonable diligence, have discovered Western Pacific, George Zeber, and Ryan Zeber’s secret fraud. In justifiable and actual reliance on Western Pacific, George Zeber, and Ryan Zeber’s promises, Plaintiff acted as set forth herein. If Plaintiff had known of Western Pacific, George Zeber, and Ryan Zeber’s actual intentions, Plaintiff would not have taken these actions.” (SAC, ¶ 32.) Plaintiff also alleges the requisite damages.

Given the above, the Court finds that Plaintiff has sufficiently alleged a fraud cause of action against Defendant W & Z Development Corporation dba Western Pacific Construction Services at this stage of the litigation.

The demurrer is OVERRULED.

II. Motion to Strike Defendant also moves to strike allegations related to Plaintiff’s claim for punitive damages.

Civil Code section 3294 states:

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Importantly, corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) “An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.” (Id.)

“But the law does not impute every employee’s malice to the corporation.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) “Instead, the punitive damage statute requires proof of malice

among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’” (Id.) “Managing agents” are employees who “exercise[] substantial discretionary authority over decisions that ultimately determine corporate policy,” such as those “decisions that set these general principles and rules.” (Id., at pp. 167-68; Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 714-15.)

Defendant argues that Plaintiff is not entitled to collect punitive damages for obligations arising from a written contract. Plaintiff, however, also pleads a fraud cause of action. Plaintiff sufficiently alleges the requisite disregard of Plaintiff’s rights such that Plaintiff’s claims for punitive damages is sufficient at this stage of the litigation. For example, paragraphs 18-22 and 28-34 all support Plaintiff’s punitive damages claim.

The Motion to Strike is DENIED.

Plaintiff to give notice.

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DEMURRER:

Defendant Antigua Owner’s Association Of Monarch Beach (“Defendant”) demurs to the third cause of action for quantum meruit as alleged in the Second Amended Complaint.

Plaintiff Ben’s Asphalt & Maintenance Company, Inc. (“Plaintiff”) opposed the motion.

“[I]n order to recover under a quantum meruit theory, a plaintiff must establish both that he or she was acting pursuant to either an express or implied request for such services from the defendant and that the services rendered were intended to and did benefit the defendant.” (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 248.) “Quantum meruit refers to the wellestablished principle that ‘the law implies a promise to pay for services performed under circumstances disclosing that they were not gratuitously rendered.” (Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal.App.4th 1331, 1344.)

“ To recover in quantum meruit, a party need not prove the existence of a contract [citations], but it must show the circumstances were such that ‘the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made.’ ” (Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal.App.4th 1331, 1344.)

The first element requires “that the plaintiff have bestowed some benefit on the defendant.” (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 249.) “The measure of recovery in quantum meruit is the reasonable value of the services rendered provided they were of direct benefit to the defendant.” (Ibid.)

The second element requires “either an explicit or implicit request for the services.” (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 249.) Put another way, “a recipient of services performed either requested or acquiesced in them ....” (Ibid.) “[C]ompensation for a party's performance should be paid by the person whose request induced the performance.” (Ibid.)

Here, the Court finds that Plaintiff has sufficiently alleged a cause of action for quantum meruit.

Plaintiff alleges that “On or about April of 2023, Defendants expressly requested that Plaintiff provide labor, materials, and equipment to perform certain asphalting services on the roads within the Subject Property. These certain labor, materials, and equipment provided by the Plaintiff were intended to and did benefit the Subject Property and Defendants.” (SAC, ¶ 36.)

Plaintiff further alleges that “upon information and belief, Antigua HOA also implicitly requested the asphalt services of Plaintiff by virtue of having its agent and contractor, Western Pacific, hire the Plaintiff as a subcontractor to perform the asphalt road improvements. Moreover, upon information and belief, Antigua HOA was apprised of the Contract and services Plaintiff would be performing for the benefit of the Antigua HOA. Accordingly, Antigua HOA was aware that payment would be owed to Plaintiff for performing the asphalting service improvements as referenced herein on the Subject Property.” (SAC, ¶ 37.)

Thus, Plaintiff alleges that Defendant Antigua Owner’s Association Of Monarch Beach requested Plaintiff’s asphalt services/asphalt road improvements, Plaintiff provided those services and therefore Defendant received the benefit of the asphalt services/asphalt road improvements, and Plaintiff was never paid for those services/improvements.

This is sufficient to state a cause of action for quantum meruit.

The Demurrer to the third cause of action for quantum meruit is OVERRULED.

Plaintiff to give notice.

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MOTION FOR ATTORNEY’S FEES: Defendant Antigua Owner’s Association of Monarch Beach (“Defendant”) moves for $5,602.50 in attorney fees (13.5 hours at $415/hour) plus $120.00 in costs, for a total of $5,722.50, in favor of Defendant Antigua Owner’s Association of Monarch Beach based on the Court’s order granting Defendant’s motion to expunge the mechanic’s lien. The motion is made pursuant to Civil Code section 8488(c) and Code of Civil Procedure sections 1032 and 1033.5.

Plaintiff Ben’s Asphalt & Maintenance Company, Inc. (“Plaintiff”) opposes the motion.

Civil Code section 8488 states:

“(a) At the hearing both (1) the petition and (2) the issue of compliance with the service and date for hearing requirements of this article are deemed controverted by the claimant. The petitioner has the initial burden of producing evidence on those matters. The petitioner has the burden of proof as to the issue of compliance with the service and date for hearing requirements of this article. The claimant has the burden of proof as to the validity of the lien.

(b) If judgment is in favor of the petitioner, the court shall order the property released from the claim of lien.

(c) The prevailing party is entitled to reasonable attorney’s fees.” (Civ. Code, § 8488.)

Code of Civil Procedure section 1032 defines the prevailing party as follows:

“ ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” (Code Civ. Proc., § 1032, subd. (a)(4).)

Here, the Court granted Defendant’s unopposed Motion to Expunge the Mechanics Lien on November 6, 2025. (ROA 80.) Thus, Defendant is the prevailing party.

Defendant asks for $5,602.50 in attorney fees (13.5 hours at $415/hour) plus $120.00 in costs, for a total of $5,722.50. In his declaration, Defense counsel testifies to the following:

“I have been practicing law since 2006 and I have significant trial experience. Based upon my conversations with other Orange County attorneys, my rate of $415 per hour is substantially lower than rates billed by similarly situated attorneys in Orange County for experienced litigators with more than 18 years experience. Association requests a lodestar of $5,602.50 for necessary defense work from inception of the Mechanics’ Lien issue through resolution, plus $60.00 for the motion to expunge, and, $60.00 for this motion. I was the only biller on this particular matter. My billing is broken down as follows:

• 9 hours in meeting and conferring, conducting legal and fact research, and drafting the motion and appearing at the hearing, plus preparing the formal order.

• 3.5 hours to conduct legal and fact research and prepare this motion.

• 1.0 hour anticipated to be expended to reply to any opposition and appear at the hearing.

In total, I will have spent 13.5 hours on the motion to expunge and this motion. The Association also incurred costs of $60 for the motion to expunge, and $60 for this motion.” (ROA 104, Declaration of Adam Obeid, ¶ 9.)

The Court is not persuaded by Plaintiff’s arguments in opposition to the motion for attorney fees. Plaintiff did not file an opposition to the motion to expunge the mechanic’s lien and did not carry its burden of proof as to the validity of the lien. Plaintiff could have filed an opposition and notified the Court that the motion to expunge the mechanic’s lien was moot because Plaintiff removed (1) that cause of action from the operative complaint and (2) the lien. Plaintiff did not do so.

Now, Plaintiff argues that removing the cause of action related to the mechanics lien shows good faith and awarding fees for the motion to expunge would be unjust. Removing the cause of action related to the mechanics lien does not, however, establish that Plaintiff removed the “Mechanics Lien recorded by Plaintiff in relation to this matter, identified as Instrument No. 2024000129095, recorded with the Orange County Recorder on May 23, 2024.”

Given the above, the Court finds that Defendant is the prevailing party and that the attorney fees sought are reasonable under the circumstances and pursuant to a lodestar analysis.

The Motion for Attorney Fees and Costs is GRANTED in the amount requested. The Court finds that Defendant Antigua Owner’s Association of Monarch Beach is entitled to $5,602.50 in attorney fees plus $120.00 in costs, for a total of $5,722.50.

Moving Party to give notice.

7. 30-2022-01246328 1. Motion for Attorney Fees

Aznavian vs. Castle Plaintiff Camillia Aznavian moves the Court for an Order for Attorneys’ Fees. Mortgage Corporation This motion is DENIED.

A plaintiff who obtains a default judgment by written declaration, as here, may not seek fees by means of a postjudgment motion. Plaintiff is entitled only to those fees included in the default judgment. [Garcia v. Politis (2011) 192 CA4th 1474, 1479.] Here, no attorney’s fees were included in the Default Judgment; and thus, none can be recovered.

Clerk to give notice.

8. 30-2022-01276823 1. Motion for Summary Judgment and/or Adjudication

Bethesda University vs. Plaintiff Bethesda University (“Plaintiff” or “Bethesda”) moves for summary judgment or Kim summary adjudication against Defendants Pan-Ho Kim; Kyung Moon Kim; Young Hoon Lee; Sun Wook Hwang; Seung Hyun Moon; Samuel Minje Cho; Chun Soo Kim; Ji Yeon Kim; Esther Cho; Ho Yun Jun; Yong Woo Choi; Han Yeh Chang; Yong Jun Kim; Yu Chul Chin; Byeong Cho Yang; and Seunghwa Ji (“Defendants”) on the first cause of action for fraudulent deceit, second cause of action for breach of fiduciary duty, and of the fact that Plaintiff is entitled to recover at least $4,310,249.21 in damages for the period June 1, 2022 through May 31, 2023 on the first and second causes of action.

Plaintiff has not sought summary adjudication or summary judgment with regard to the third cause of action for declaratory relief. Thus, complete summary judgment cannot be granted and the motion to the extent it seeks summary judgment is DENIED.

A plaintiff moving for summary adjudication bears the initial burden of proving each element of the cause of action. (Code Civ. Proc., § 437c(p)(1).) “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.” (Id., § 437c(f)(1).)

Fraudulent Deceit The “elements of a cause of action for fraud are: (1) a misrepresentation, which includes a concealment or nondisclosure; (2) knowledge of the falsity of the misrepresentation i.e., scienter; (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damages.” (Cadlo v. Owens-Illinois, Inc. (2005) 125 Cal.App.4th 513, 519.)

Plaintiff’s motion is supported by the Declaration of Seung Je Cho, its former President. Mr. Cho asserts that during the period of June 1, 2022 through May 31, 2023, Defendants claimed to be Bethesda’s governing board and officers and acted as though they controlled Bethesda’s