The Demurrer by Defendant Quynh Mai Nguyen to the First Amended Complaint is SUSTAINED.
In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.)
As an initial matter, although Defendant Nguyen contends Plaintiffs’ counsel extended his time to respond to July 6, 2020, Plaintiffs’ counsel’s email indicates that the time to file an answer would be extended to July 6, 2020. The court finds that while Nguyen’s time to file an answer may have been extended, his time to file a demurrer was not. Plaintiffs’ counsel specifically limited the extension to an answer. (See Vasin Decl., ¶ 2, Ex. F.).. Thus, Nguyen’s demurrer is untimely. Nevertheless, the court exercises its discretion and will consider the demurrer. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)
Code of Civil Procedure section 378 permits joinder of plaintiffs if they assert any right to relief “arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action….” Under this provision, “the action of each plaintiff has been joined in one case, but they remain independent actions.” (Brennan v. Superior Court (1994) 30 Cal.App.4th 454, 461.) “ ‘The code section [section 378] contemplates of course an action single in form, but with each “case” or demand retaining its distinctive identity as though pleaded in an independent action. No plaintiff is interested in the entire complaint. The interest of each is in his own “case” or cause of action; and the complaint as a whole is merely a series of “cases” embodied in one document. The institution of a joint action thus amounts to an election to consolidate at the outset several causes of action for trial instead of bringing several actions based on common grounds, and then having them consolidated later.’ ” (Writers Guild of America, West, Inc. v. Superior Court (1969) 273 Cal.App.2d 841, 846.)
The FAC alleges Defendants crafted a scheme to obtain significant sums of money from Plaintiff Hang as payments to Defendants to arrange an L1 visa which would allow Hang to work for American P3 Capital and along with her two daughters move and live in the United States. (FAC, ¶¶ 16, 19.) The FAC also alleges Defendant Patrick Devaney signed and conveyed a promissory note to Plaintiff Bao, affirming a contract between American P3 Capital and Bao. (FAC, ¶¶ 16(e), 20.) In exchange for $150,000 from Bao, American P3 Capital promised to pay Bao equal to one percent per annum (1%) or the total amount of United States dollar-equivalent of twenty thousand shares (20,000) of Mullen Technology [sic] stock priced as of May 31, 2017, the ‘strike’ date, whichever is greater.” (Id.) Defendants are alleged to have breached both agreements. (FAC, ¶¶ 22-23.)
Here, the events do not constitute a single transaction and no allegations indicate a related series of transactions. Two separate and distinct plaintiffs are suing Defendant Nguyen for separate and distinct claims during separate and distinct time periods. The FAC does not include any allegations relating Nguyen to Bao’s claims. Joinder is not appropriate as to Nguyen. The demurrer for misjoinder is sustained. (See Moe v. Anderson (2012) 207 Cal.App.4th 826, 833-834 [joinder inappropriate as to physician who was alleged to have to sexually assaulted two patients on separate occasions].) Because Nguyen is improperly joined, he has made the requisite showing of prejudice. (Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 198.)
Additionally, the allegations concerning Nguyen do not state facts sufficient to constitute a cause of action. The FAC alleges Nguyen introduced Hang to the Devaneys. (FAC, ¶ 16(b).) The FAC further alleges Hang exchanged emails with and contacted Nguyen and the Devaneys, was to meet with Nguyen and the Devaneys, and that Nguyen exchanged text messages with the Devaneys. (FAC, ¶¶ 16(l), 16(m), 16(q), 16(r), 16(t), 16(w).)
Where there is a factual inconsistency between the allegations, is well-settled that “specific allegations control general pleadings.” Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 397–398. Because the specific allegations of Nguyen’s actions limit the general allegations that Defendants engaged in various wrongful acts, the demurrer to the first through ninth causes of action is sustained. The FAC does not state facts sufficient to constitute a cause of action against Nguyen.
Nguyen’s demurrer for uncertainty is overruled as moot in light of the above ruling.
Should Plaintiffs desire to file an Amended Complaint that addresses the issues in this ruling, Plaintiffs must file and serve it within 15 days of service of Notice of Ruling.
Moving party to give notice.