This case was last updated from Los Angeles County Superior Courts on 02/24/2021 at 23:18:47 (UTC).

NICOLE PARK VS MOON KYUNG KIM

Case Summary

On 05/23/2019 NICOLE PARK filed a Personal Injury - Other Personal Injury lawsuit against MOON KYUNG KIM. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******5014

  • Filing Date:

    05/23/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff and Cross Defendant

PARK NICOLE

Defendant and Cross Plaintiff

KIM MOON KYUNG

Attorney/Law Firm Details

Plaintiff Attorney

MANN JONATHAN I.

Defendant and Cross Plaintiff Attorney

KWON JEAN

 

Court Documents

Amended Complaint - Amended Complaint (3rd)

1/25/2021: Amended Complaint - Amended Complaint (3rd)

Notice of Ruling - Notice of Ruling

1/6/2021: Notice of Ruling - Notice of Ruling

Opposition (name extension) - Opposition Plaintiff's Opposition to Defendant's Notice of Demurrer and Demurrer to Second Amended Complaint; Memorandum of Points and Authorities; Declarations

12/21/2020: Opposition (name extension) - Opposition Plaintiff's Opposition to Defendant's Notice of Demurrer and Demurrer to Second Amended Complaint; Memorandum of Points and Authorities; Declarations

Objection (name extension) - Objection DEFENDANTS OBJECTION TO AND REQUEST TO STRIKE ALL EXHIBITS AND DECLARATIONS ATTACHED TO PLAINTIFFS OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT

12/28/2020: Objection (name extension) - Objection DEFENDANTS OBJECTION TO AND REQUEST TO STRIKE ALL EXHIBITS AND DECLARATIONS ATTACHED TO PLAINTIFFS OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

1/5/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Amended Complaint - Amended Complaint SECOND AMENDED COMPLAIN (2nd)

7/6/2020: Amended Complaint - Amended Complaint SECOND AMENDED COMPLAIN (2nd)

Request for Judicial Notice - Request for Judicial Notice

8/4/2020: Request for Judicial Notice - Request for Judicial Notice

Stipulation and Order (name extension) - Stipulation and Order TO CONTINUE TRIAL DATE; [PROPOSED] ORDER

9/29/2020: Stipulation and Order (name extension) - Stipulation and Order TO CONTINUE TRIAL DATE; [PROPOSED] ORDER

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

5/21/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Opposition (name extension) - Opposition Opposition to the Filing of Defendant's Reply to Opposition as it was not Filed Timely

2/13/2020: Opposition (name extension) - Opposition Opposition to the Filing of Defendant's Reply to Opposition as it was not Filed Timely

Minute Order - Minute Order (Hearing on Special Motion to Strike under CCP Section 425.16 ...)

2/19/2020: Minute Order - Minute Order (Hearing on Special Motion to Strike under CCP Section 425.16 ...)

Motion re: (name extension) - Motion re: Plaintiff's Notice of Motion and Motion to Amend Plaintiff's First Amended Complaint; Memorandum of Points and Authorities; Declaration of Jonathan Mann, In Su

3/4/2020: Motion re: (name extension) - Motion re: Plaintiff's Notice of Motion and Motion to Amend Plaintiff's First Amended Complaint; Memorandum of Points and Authorities; Declaration of Jonathan Mann, In Su

Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion - Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

10/28/2019: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion - Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

Stipulation and Order (name extension) - Stipulation and Order to Extend Time to File An Amended Complaint and to file a Responsive Pleading

8/28/2019: Stipulation and Order (name extension) - Stipulation and Order to Extend Time to File An Amended Complaint and to file a Responsive Pleading

Civil Case Cover Sheet - Civil Case Cover Sheet

5/23/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

First Amended Standing Order - First Amended Standing Order

5/23/2019: First Amended Standing Order - First Amended Standing Order

Complaint - Complaint

5/23/2019: Complaint - Complaint

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

5/23/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

21 More Documents Available

 

Docket Entries

  • 05/26/2022
  • Hearing05/26/2022 at 10:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 05/05/2021
  • Hearing05/05/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 01/25/2021
  • DocketAmended Complaint (3rd); Filed by: Nicole Park (Plaintiff); As to: Moon Kyung Kim (Defendant)

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  • 01/06/2021
  • DocketNotice of Ruling; Filed by: Moon Kyung Kim (Defendant)

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  • 01/05/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 01/05/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 01/05/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 01/05/2021; Result Type to Held

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  • 12/28/2020
  • DocketReply TO OPPOSITION TO DEMURRER OF DEFENDANT AND CROSS-COMPLAINANT MOON KYUNG KIM TO SECOND AMENDED COMPLAINT; Filed by: Moon Kyung Kim (Defendant)

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  • 12/28/2020
  • DocketObjection DEFENDANT?S OBJECTION TO AND REQUEST TO STRIKE ALL EXHIBITS AND DECLARATIONS ATTACHED TO PLAINTIFF?S OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT; Filed by: Moon Kyung Kim (Defendant)

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  • 12/21/2020
  • DocketOpposition Plaintiff's Opposition to Defendant's Notice of Demurrer and Demurrer to Second Amended Complaint; Memorandum of Points and Authorities; Declarations; Filed by: Nicole Park (Plaintiff)

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  • 09/29/2020
  • DocketStipulation and Order TO CONTINUE TRIAL DATE; [PROPOSED] ORDER; Signed and Filed by: Nicole Park (Plaintiff); As to: Moon Kyung Kim (Defendant)

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31 More Docket Entries
  • 07/18/2019
  • Docketamended complaint; Filed by: Nicole Park (Plaintiff); As to: Moon Kyung Kim (Defendant)

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  • 07/18/2019
  • DocketAmended Complaint; Filed by: Nicole Park (Plaintiff); As to: Moon Kyung Kim (Defendant)

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  • 05/24/2019
  • DocketNon-Jury Trial scheduled for 11/19/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 05/24/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 05/26/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 05/24/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 05/23/2019
  • DocketComplaint; Filed by: Nicole Park (Plaintiff); As to: Moon Kyung Kim (Defendant)

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  • 05/23/2019
  • DocketCivil Case Cover Sheet; Filed by: Nicole Park (Plaintiff); As to: Moon Kyung Kim (Defendant)

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  • 05/23/2019
  • DocketSummons on Complaint; Issued and Filed by: Nicole Park (Plaintiff); As to: Moon Kyung Kim (Defendant)

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  • 05/23/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 05/23/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC05014    Hearing Date: January 05, 2021    Dept: 25

HEARING DATE: Tue., January 5, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Park v. Kim COMPL. FILED: 05-23-19

CASE NUMBER: 19STLC05014 DISC. C/O: 04-05-21

NOTICE: OK DISC. MOT. C/O: 04-20-21

TRIAL DATE: 05-05-21

PROCEEDINGS: DEMURRER TO PLAINTIFF’S COMPLAINT

MOVING PARTY: Defendant Moon Kyung Kim

RESP. PARTY: Plaintiff Nicole Park

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Moon Kyung Kim’s Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIRST CAUSE OF ACTION AND SUSTAINED WITH LEAVE TO AMEND AS TO THE SECOND AND THIRD CAUSES OF ACTION. PLAINTIFF IS GRANTED 20 DAYS’ LEAVE TO AMEND THE SECOND AND THIRD CAUSES OF ACTION.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on December 21, 2020 [ ] Late [ ] None

REPLY: Filed on December 28, 2020 [ ] Late [ ] None

ANALYSIS:

  1. Background

On May 23, 2019, Plaintiff Nicole Park (“Plaintiff”) filed an action for malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress against Defendant Moon Kyung Kim (“Defendant”). Plaintiff filed a First Amended Complaint on July 18, 2019 and Defendant filed a Cross-Complaint against Plaintiff for intentional infliction of emotional distress on September 25, 2019. After the Court granted Plaintiff’s motion for leave to amend the FAC, Plaintiff filed a Second Amended Complaint (the “SAC”) on July 6, 2020.

Defendant filed the instant Demurrer to Plaintiff’s Second Amended Complaint (the “Demurrer”) on August 4, 2020. Plaintiff filed an Opposition on December 21 and Defendant filed a Reply on December 28.

  1. Legal Standard

“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.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction over the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

  1. Request for Judicial Notice

Defendant requests that the Court take judicial notice of the Court’s May 14, 2019 Order regarding Defendant’s Petition for Civil Harassment heard in Department F46 at the Chatsworth Courthouse. (Dem., RJN, Exh. A.)

Defendant’s request is GRANTED. (Evid. Code, § 452, subd. (d).)

  1. Defendant’s Objections

Defendant objects to Exhibits 1-21 filed by Plaintiff with her Opposition. (Reply, Objections, pp. 1-2.) In ruling on a demurrer, a Court may consider matters shown in exhibits attached to the complaint and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) Courts may also consider matters which have been properly judicially noticed. (Harris, supra, 56 Cal.4th p. 240.)

Here, Plaintiff has not requested judicial notice of any of the Exhibits attached to its Opposition and only Exhibits 17 and 18 are part of Plaintiff’s SAC. Thus, Defendant’s objections to Exhibits 1-16 and 19-21 are SUSTAINED.

  1. Discussion

The Demurrer is accompanied by a meet and confer declaration. (Dem., Heath Decl., ¶¶ 7-9.)

Defendant demurs to Plaintiff’s SAC on the basis that all three causes of action fail to state facts sufficient to constitute a cause of action against her. (Dem., p. 3:2-7.)

  1. First Cause of Action – Malicious Prosecution

“To prevail in a malicious prosecution action under California law, a malicious prosecution plaintiff (the defendant in the underlying action) must show that (1) the plaintiff in the underlying action pursued a claim with subjective malice, (2) the claim was brought without objective probable cause, and (3) the underlying action was terminated on the merits in favor of the defendant.” (Lane v. Bell (2018) 20 Cal.App.5th 61, 63.)

Plaintiff’s malicious prosecution cause of action is based on Defendant’s Petition for Civil Harassment filed on April 23, 2019. Plaintiff alleges Defendant was granted a temporary restraining order based on allegations that Plaintiff made threatening statements toward Defendant and her son over the phone. (SAC, ¶ 9) Plaintiff also alleges she never made any threatening statements as stated in Defendant’s petition. (Id. at ¶ 10.)

Defendant argues a malicious prosecution cause of action cannot be based on an underlying application for civil restraining orders sought under Code of Civil Procedure section 527.6. (Dem., p. 7:5-15.) The Court agrees. In Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1574, the Court of Appeals concluded that the unsuccessful filing of a petition for an injunction for civil harassment under Code of Civil Procedure section 527.6 may not form the basis for a malicious prosecution action. The Court reasoned that Section 527.6 guards against frivolous petitions by providing for sanctions and that these means are preferable to discourage frivolous petitions rather than allowing subsequent actions for malicious prosecution. (Id.)

Thus, Defendant’s Demurrer as to the first cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

  1. Second Cause of Action – Intentional Infliction of Emotional Distress

A cause of action for intentional infliction of emotional distress (“IIED”) “requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the possibility of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress. [Citation.]” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) Conduct is considered “outrageous” if it is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.) “Generally, conduct will be found to be actionable where the ‘recitation of facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim “Outrageous!” ’ [Citations.]” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) In addition, the bar for severe emotional distress is a high one, requiring that the “emotional distress [is] of such substantial quality or enduring quality that no reasonable person in a civilized society should be expected to endure…” [Citation.]” (Id. at p. 1051.)

Plaintiff alleges that Defendant’s following actions were extreme, outrageous, and intended to inflict emotional distress: (1) accusing Plaintiff of acting in a “menacing, threatening, and belligerent” manner at the April 22, 2019 Boy Scouts Troop 1 meeting; (2) voting to terminate Plaintiff from Boy Scouts Troop 1 when Defendant knew she did not have the authority to do so; (3) lying about Defendant’s leadership position in Boy Scouts Troop 1; (4) instructing a third person to text Plaintiff to attend a meeting on May 5, 2019 with Defendant to make Plaintiff violate the TRO in effect and be arrested for the violation; (5) fabricating a text message/email regarding additional threats Plaintiff made against Defendant and sending it to the Boy Scouts’ District Commissioner; and (6) falsely stating Plaintiff had sued a church pastor affiliated with Boy Scouts Troop 1. (SAC, ¶¶ 34-37.) Plaintiff further alleges that, as a result of Defendant’s “outrageous conduct,” she suffered “extreme mental anguish, frustration, and emotional distress.” (Id.)

“ ‘Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]’ [Citation.]” (Yau v. Santa Margarita, Ford, Inc. (2014) 229 Cal.App.4th 144, 160-61.)

Here, Plaintiff’s allegations do not demonstrate Defendant’s conduct exceeds all bounds of that usually tolerated in a civilized community. Rather, as Defendant points out, the allegations demonstrate an unpleasant, and likely common, conflict between two volunteer mothers in a Boy Scouts troop. (Dem., pp. 11:19-12:5.)

Defendant also argues that Plaintiff has not alleged specific facts indicating the nature or extent of any mental suffering resulting from Defendant’s alleged outrageous conduct. (Dem., p. 12:6-9.) The Court agrees. A plaintiff must allege facts which “indicate the nature or extent of any mental suffering incurred as a result of [a defendant’s] alleged outrageous conduct. (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617-18.) Plaintiff has not alleged any specific facts regarding the extent of her mental suffering or emotional distress.

Thus, Defendant’s Demurrer as to the second cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

  1. Third Cause of Action – Negligent Infliction of Emotional Distress

Negligently causing emotional distress is not an independent tort; rather, it is the tort of negligence and the traditional elements of duty, breach of duty, causation, and damages apply. (Erikson v. Nunnik (2015) 233 Cal.App.4th 708, 729.) “Negligence is ordinarily assessed by reference to reasonableness, viewed objectively. The general standard of care applicable to negligence is ‘that of a reasonably prudent person under like circumstances’ [citation] which constitutes an ‘objective reasonable person standard’ [citation]. Accordingly, the existence of negligence ordinarily hinges on whether the pertinent person complied with that standard, rather than on the person’s state of mind. [Citation.]” (People v. Superior Court (2016) 248 Cal.App.4th 526, 535.)

“While recovery for the negligent infliction of emotional distress is generally denied, it has been permitted in two types of situations, referred to as ‘bystander’ and ‘direct victim’ cases. [Citation.]” (Ess v. Estaton Properties, Inc. (2002) 97 Cal.App.4th 120, 126-27.) Bystander claims are permitted where the plaintiff is “closely related to the victim of a physical injury, is present at the scene of the injury-causing event and is then aware that it is causing injury, and suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Id. at p. 127.) Direct victim claims, on the other hand, “involve the breach of a duty owed the plaintiff that was assumed by the defendant, imposed on the defendant as a matter of law, or arose out of a preexisting relationship between the two.” (Id.) The Supreme Court has made clear that “to recover damages for emotional distress on a claim of negligence where there is no accompanying personal, physical injury, the plaintiff must show that the emotional distress was ‘serious.’” [Citation.]” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377.) “ ‘[S]erious emotional distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.’ [Citation.]’ [Citation.]” (Id. at p. 1377-78.)

Plaintiff alleges (1) that Defendant had a duty not to falsely accuse Plaintiff of making threats against her or of accusing Plaintiff of acting menacing, threatening and belligerent toward Defendant; (2) that Defendant had a duty not to fraudulently vote to terminate Plaintiff from Troop 1 knowing she had no authority to do so; (3) that Defendant had a duty not to falsely inform Grace Nam (“Nam”), a third person, Nam had been approved to be temporary Committee Chairman of Boy Scouts Troop 1; (4) that Defendant had a duty not to instruct Nam to text Plaintiff to request a meeting between Plaintiff and Defendant knowing Plaintiff could be arrested; (5) that Defendant was negligent in breaching these duties because she knew the falsity of her claims and acted on them as if they were truthful; and (6) that as a result of Defendant’s false accusations, Plaintiff suffered extreme mental anguish, frustration, and emotional distress. (SAC, ¶¶ 38-40.)

Here, Plaintiff is not a bystander and thus, must allege a direct victim claim. However, there is no general duty to avoid negligently causing emotional distress to another person so ‘“unless the defendant has assumed a duty in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” (Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204.) As there is no general duty not to negligently cause emotional distress, Plaintiff must allege what specific legal duty applies or what duty Defendant assumed that was breached. Plaintiff also does not state any specific facts regarding the seriousness of the emotional distress she allegedly suffered. Furthermore, Plaintiff alleges Defendant committed knowing and intentional acts, not negligent conduct.

Thus, the Demurrer as to the third cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

  1. Conclusion & Order

For the foregoing reasons, Defendant Moon Kyung Kim’s Demurrer to Plaintiff’s Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIRST CAUSE OF ACTION AND SUSTAINED WITH LEAVE TO AMEND AS TO THE SECOND AND THIRD CAUSES OF ACTION. PLAINTIFF IS GRANTED 20 DAYS’ LEAVE TO AMEND THE SECOND AND THIRD CAUSES OF ACTION.

Moving party is ordered to give notice.

Case Number: 19STLC05014    Hearing Date: June 23, 2020    Dept: 25

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

(CCP § 473(a); CRC 3.1324)

TENTATIVE RULING:

Plaintiff Nicole Park’s Motion to Amend Plaintiff’s First Amended Complaint is GRANTED. Plaintiff’s Second Amended Complaint is to be filed within ten (10) days of this order.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of June 18, 2020 [ ] Late [X] None

REPLY: None filed as of June 18, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On May 23, 2019, Plaintiff Nicole Park (“Plaintiff”) filed an action for malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress against Defendant Moon Kyung Kim (“Defendant”). On July 18, 2019, Plaintiff filed a First Amended Complaint. On September 25, 2019, Defendant filed a Cross-Complaint for intentional infliction of emotional distress against Plaintiff.

On March 4, 2020, Plaintiff filed the instant Motion to Amend Plaintiff’s First Amended Complaint (the “Motion”). To date, no opposition has been filed.

  1. Legal Standard

Leave to amend is permitted under Code of Civil Procedure section 473, subdivision (a), and section 576. The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. . . .” “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘where no prejudice is shown to the adverse party . . . . [citation]. A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)

A motion to amend pleadings must include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a supporting declaration. (Cal. Rules of Court, rule 3.1324, subds. (a), (b).) The supporting declaration must specify the effect of the amendment, the necessity and propriety of the amendment, the date of discovery of facts that gave rise to the need to file an amendment, and any reasons for delay. (Id., subd. (b)(1)-(4).) (Italics added.)

  1. Discussion

Plaintiff seeks leave to file a second amended complaint. Plaintiff argues that, in taking Defendant’s deposition on December 17, 2019, she discovered new facts that warrant a second amended complaint. (Mot., Mann Decl., ¶ 1.) Specifically, Plaintiff seeks to make additional factual allegations of wrongful conduct that make Plaintiff’s second and third causes of action more complete. (Id. at ¶ 4, Exh. 1A.)

The Court finds that Plaintiff has satisfied California Rules of Court, rule 3.1324. In addition, Defendant has not opposed this Motion, and the Court discerns no prejudice to Defendant in granting it.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Nicole Park’s Motion to Amend Plaintiff’s First Amended Complaint is GRANTED. Plaintiff’s Second Amended Complaint is to be filed within ten (10) days of this order.

Moving party is ordered to give notice.

Case Number: 19STLC05014    Hearing Date: February 19, 2020    Dept: 25

SPECIAL MOTION TO STRIKE (ANTI-SLAPP)

(CCP § 425.16)

TENTATIVE RULING:

Defendant/Cross-Complainant Moon Kyung Kim’s Special Motion to Strike Plaintiff’s First Amended Complaint is DENIED.

OPPOSITION: Filed on February 3, 2020 [ ] Late [ ] None

REPLY: Filed on February 13, 2020 [X] Late [ ] None

ANALYSIS:

  1. Background & Discussion

On May 23, 2019, Plaintiff Nicole Park (“Plaintiff”) filed an action for malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress against Defendant Moon Kyung Kim (“Defendant”). On July 18, 2019, Plaintiff filed a First Amended Complaint. On September 25, 2019, Defendant filed a Cross-Complaint for intentional infliction of emotional distress against Plaintiff.

On October 2, 2019, Defendant filed the instant Special Motion to Strike Plaintiff’s First Amended Complaint (the “Motion”). On February 3, 2020, Plaintiff filed an Opposition and on February 13, 2020, Defendant filed a late Reply.

However, in a limited jurisdiction court, “[m]otions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., § 92, subd. (d).) The Court of Appeal recently held: “Thus, construing section 92(d) to permit anti-SLAPP motions to be brought in limited civil cases would undermine the Legislature’s goal of efficient and cost-effective litigation in such cases. [¶] For all these reasons, we conclude that section 92(d) precludes a defendant from bringing a special motion to strike in a limited civil case.” (1550 Laurel Owner's Association, Inc. v. Appellate Division of Superior Court of Los Angeles County (2018) 28 Cal.App.5th 1146, 1158.)

Thus, because the instant Motion is not permitted in this Court, it is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Defendant/Cross-Complainant Moon Kyung Kim’s Special Motion to Strike Plaintiff’s First Amended Complaint is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC05014    Hearing Date: January 08, 2020    Dept: 94

Plaintiff Nicole Park’s Motion to Compel is DENIED. In addition, Defendant’s Motion to Strike (Anti-SLAPP) scheduled to be heard on February 19, 2020 is PLACED OFF CALENDAR.

ANALYSIS:

I. Background

On May 23, 2019, Plaintiff Nicole Park (“Plaintiff”) filed an action for malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress against Defendant Moon Kyung Kim (“Defendant”). On September 25, 2019, Defendant filed a cross-complaint against Plaintiff for intentional infliction of emotional distress.

On October 2, 2019, Defendant filed an Anti-SLAPP Motion, currently scheduled to be heard on February 19, 2020. On October 28, 2019, Plaintiff filed the instant Motion to Compel Deposition of Defendant (the “Motion”).

To date, no opposition or reply briefs have been filed.

II. Discussion

Discovery proceedings in an action are stayed when an Anti-SLAPP motion is filed, but the court can order discovery be conducted upon noticed motion and good cause shown. (Code Civ. Proc., § 425.16, subd. (g).) Plaintiff argues good cause exists for the Court to compel Defendant’s deposition in advance of the scheduled hearing on Defendant’s Anti-SLAPP Motion.

In a limited jurisdiction court, “[m]otions to strike are allowed only on the ground that the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc., § 92, subd. (d).) The Court of Appeal recently held: “Thus, construing section 92(d) to permit anti-SLAPP motions to be brought in limited civil cases would undermine the Legislature’s goal of efficient and cost-effective litigation in such cases. For all these reasons, we conclude that section 92(d) precludes a defendant from bringing a special motion to strike in a limited civil case.” (1550 Laurel Owner's Association, Inc. v. Appellate Division of Superior Court of Los Angeles County (2018) 28 Cal.App.5th 1146, 1158.)

Thus, because the Court does not have jurisdiction to hear the underlying Anti-SLAPP Motion, Plaintiff’s Motion to Compel is DENIED. In addition, Defendant’s Anti-SLAPP Motion is PLACED OFF CALENDAR.

III. Conclusion & Order

Plaintiff Nicole Park’s Motion to Compel is DENIED. In addition, because the instant Motion is not permitted in this Court based on the foregoing authorities, Defendant’s Motion to Strike (Anti-SLAPP) scheduled to be heard on February 19, 2020 is PLACED OFF CALENDAR.

Clerk to give notice.