LEO CHI HONG WANG VS STELLA YEH

Tentative Rulings

Case Number: ****9679 Hearing Date: September 27, 2021 Dept: O

Plaintiffs Leo Chi Hong Wang (“Leo”) and Jean Sun Wang (“Jean” and collectively “Plaintiffs” and “Cross-Defendants”) initiated this action on October 3, 2017. They allege that, on February 6, 2016, they entered into a lease for the real property located at 2817 Muir Woods Court, West Covina, CA (“Subject Property”) where Defendant Hossein Sotoodeh (“Sotoodeh”) was the owner of the Subject Property and Defendant Stella Yeh (“Yeh” and collectively “Defendants” and “Cross-Complainants”) was the landlord. Plaintiffs allege that Defendants breached the lease by refusing to pay for the air conditioning repairs and for entering the Subject Property without permission. The operative Second Amended Complaint, filed May 31, 2018, asserts the following causes of action:

1. Breach of Residential Lease;

2. Breach of Covenant of Quiet Enjoyment;

3. Violation of Civil Code ; 1950.5(1);

4. Violation of Civil Code ; 1950.5(k)(1); and

5. Intentional Interference with Contractual Relations.

Thereafter, Cross-Complainants Sotoodeh and Yeh filed a Cross-Complaint against Cross-Defendants Leo and Jean. Cross-Complainants allege that the Cross-Defendants breached the lease agreement by smoking on the property, refusing to provide access to the property, making unapproved changes to the property, and terminating the lease early and without proper notice. Furthermore, they claim that Cross-Defendant Leo invaded their privacy by recording a conversation without permission and intentionally caused them emotional distress. The operative First Amended Cross-Complaint (“FACC”), filed on June 29, 2021, alleges the following causes of action:

1. Breach of Lease Agreement;

2. Invasion of Privacy;

3. Intentional Infliction of Emotional Distress;

4. Breach of the Implied Covenant of Good Faith and Fair Dealing;

5. Violation of Business and Professions Code ; 17200; and

6. Fraudulent Concealment.

On July 29, 2021, Cross-Complainants Leo and Jean (hereinafter, “Movants”) filed a demur to the Second, Third, Fourth, Fifth and Sixth Causes of Action pursuant to Code of Civil Procedure section 430.10.

Trial Setting Conference is set for September 27, 2021.

Plaintiffs/Cross-Defendants Leo Chi Hong Wang and Jean Sun Wang’s Demurrer to Cross-Complainants’ First Amended Complaint is SUSTAINED, in part, without leave to amend as to the Fourth, Fifth and Sixth Causes of Action and OVERRULED, in part, as to the Second and Third Causes of Action. Cross-Defendants are ordered to file an Answer within 20 days.

Judicial Notice

The Court grants Movants’ Request for Judicial Notice of Cross-Complainant Sotoodeh’s response to Special Interrogatory No. 32, which was included in Movants’ second set of Special Interrogatories. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 83-84.)

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at 747.)

Demurrer

Movants demur to the Second through Sixth Causes of Action raised in the FACC on the grounds that they are untimely and fail to state sufficient facts to constitute claims against them.

Timeliness

Movants first argue that the second through sixth causes of action are untimely pursuant to Penal Code sections 632 and 632.7.

Claims under Penal Code sections 632 and 632.7 must be brought within one year. (Warden v. Kahn (1979) 99 Cal. App. 3d 805 fn.8.)

Movants assert that these five causes of action all rely on the allegedly illegal recording that Cross-Defendant Leo took during the property inspection in August 2016, which would fall within the purview of Penal Code sections 632 and 632.7. (Demurrer at pg. 7.) Also, Movants show that the FACC alleges that damages are sought pursuant to violations of Penal Code sections 632 and 632.7. (Demurrer at pg. 8; FACC ¶ 13.) Thus, even though Cross-Complainants removed those statutory causes of action in their amended pleadings, Movants reason that the FACC still relies on those statutes. (Demurrer at pg. 8.)

In opposition, Cross-Complainants argue that one-year statute of limitations imposed by Penal Code sections 632 and 632.7 do not apply because Leo’s “conduct at issue supports alternative theories which are well-maintained legally and factually.” (Opposition at pg 4.) Furthermore, Cross-Complainants’ admit that the reference to those penal code sections were unintentional. (Id.) Notably, Movants’ reply does not address this issue.

Accordingly, the Court OVERRULES Movants’ demurrer to the FACC because it has been timely filed. On its own motion, the Court strikes the language “for violations of Penal Code ;; 632, 637.2” from the FACC because it is irrelevant based on Cross-Complainants’ representation. (Code Civ. Proc. ; 436.)

Second Cause of Action – Invasion of Privacy

Movants next demurs to the Second Cause of Action for invasion of privacy because it fails to allege sufficient facts to constitute a cause of action against them.

“A privacy violation based on the common law tort of intrusion has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person.” (People v. Bollaert (2016) 248 Cal.App.4th 699, 712, quoting Hernandez v. Hillsides, Inc. (2009) 47 Cal.App.4th 272, 286.) “Actionable invasions of privacy must be sufficiently serious in their nature, scope and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 37.)

“Whether plaintiff has a reasonable expectation of privacy in the circumstances and whether defendant’s conduct constitutes a serious invasion of privacy are mixed questions of law and fact. If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law.” (Id. at 40.)

Here, Movants argue that Cross-Complainants did not have a reasonable expectation of privacy because “they were at [Movants’] residence with [Movants’] counsel present during a property inspection.” (Demurrer at pp. 10, 11.)

In opposition, Cross-Complainants argue that the reasonableness of one’s expectation of privacy is fact specific, and for the purposes of demurrer, all allegations must be accepted as true. (Opposition at pp. 5, relying on Lyon v. Gross (1942) 12Ca1.2d 659 and Serrano v. Priest (1971) 5 Cal.3d 584.) In reply, Movants assert that reasonableness is based on an objective standard, and it is immaterial whether Cross-Complainants’ believed that their conversation was private.

Upon review of the FACC, the Court finds that it has been sufficiently pleaded. The FACC alleges that Movants’ counsel represented that Cross-Defendant Leo would not be present during the inspection of the property. (FACC ¶ 29.) Based on this representation, Cross-Complainants allege they had a reasonable expectation of privacy. (FACC ¶ 30.) It is further alleged that Cross-Complainants “were not aware of Leo\'s close presence” during the inspection but it was discovered that he “was walking closely behind them, and without notice had begun recording their private conversation.” (Id.) Thus, it seems that Cross-Defendant Leo was trying to avoid detection as he recorded Cross-Complainants’ conversation. Furthermore, because there are no allegations indicating that the conversation was occurring outside of the property, the case that Movants rely on are distinguishable. (Mezger v. Bick (2021) 66 Cal.App.5th 76 [finding that plaintiff could not reasonably expect privacy in an outdoor setting with neighbors near.]) Therefore, even though the conversation occurred in Movants’ home, the Movants have not shown that there are any defect on the face of the FACC or through judicial notice to sustain their demurrer.

Accordingly, the Court OVERRULES Movants’ Demurrer to the Second Cause of Action on this basis.

Third Cause of Action – Intentional Infliction of Emotional Distress

Movants also demur to the Third Cause of Action for Intentional Infliction of Emotional Distress (“IIED”) because it has not been sufficiently pleaded.

The elements of an IIED cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)

To satisfy the element of extreme and outrageous conduct, Cross-Defendants’ conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780.) “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (McDaniel v. Gile (1991) 230 Cal.App.3d 363, 372.)

“Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co. ;(1993) 6 Cal.4th 965, 1004.) ;

Movants argue that the facts alleged in the FACC do not show that Cross-Defendant Leo’s conduct was outrageous by taking issue with the lack of specificity concerning Cross-Defendant Leo’s “menacing gestures, surprise appearances, and illegal recording [of] private conversations.” (Demurrer at pg. 12; FACC ¶ 48.)

The court disagrees. The FACC alleges that Cross-Complainant Sotoodeh experienced a heart attack before Movants signed the Lease and he continued to have heart complications. (FACC ¶¶ 14, 19.) Furthermore, Cross-Complainant Yeh also had health issues that required surgery. (FACC ¶ 19.) Movants were aware of Cross-Complainants’ health issues. (Id.) It is further alleged that Cross-Defendant Leo was often aggressive in his interactions with Cross-Complainant Yeh and would harass her (FACC ¶ 20) Also, it is alleged that, when Cross-Complainant Sotoodeh interacted with Cross-Defendant Leo on August 3, 2016, Cross-Defendant Leo threatened Cross-Complainant Sotoodeh and made gestures as if he were going to strike Cross-Complainant Sotoodeh, which caused him to “immediately retreated to his own home to take his heart medication.” (FACC ¶ 23.) Furthermore, the FACC alleges that Cross-Defendant Leo was impermissibly recording Cross-Complainants’ conversation during the property inspection and was trying to avoid detection. (FACC ¶¶ 29-30.) Thus, Cross-Defendant Leo’s alleged conduct exceeded what a civilized society would allow. (Moncada, supra, 221 Cal.App.4th at 780.) Therefore, the court finds that Cross-Complainants have met their burden at the pleading stage of showing that Leo’s conduct was outrageous.

Accordingly, the Court OVERRULES Movants’ demurrer to the Third Cause of Action on this basis.

Fourth Cause of Action – Breach of Implied Covenant of Good Faith and Fair Dealing

Movants next demur to the fourth cause of action because it fails as a matter of law.

The elements for breach of the implied covenant of good faith and fair dealing are: (1) existence of a contract between plaintiff and defendant; (2) plaintiff performed his contractual obligations or was excused from performing them; (3) the conditions requiring defendant’s performance had occurred; (4) the defendant unfairly interfered with the plaintiff’s right to receive the benefits of the contract; and (5) the plaintiff was harmed by the defendant’s conduct. (Merced Irr. Dist. V. County of Mariposa (E.D. Cal. 2013) 941 F.Supp.2d 1237, 1280 (discussing California law).) “‘[T]he implied covenant of good faith and fair dealing is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract.’” (Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 206 (quoting Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1094).)

Here, Movants argue that this cause of action fails because it has not been alleged that their purported wrongdoing “unfairly interfered with [Cross-Complainants’] right to receive the benefits of the contract.” (Motion at pg. 13.) In opposition, Cross-Complainants do not address this deficiency.

Under the circumstances, the claim is not well pleaded. A claim for breach of the implied covenant of good faith and fair dealing must “go beyond the statement of a mere contract breach” and not “rel[y] on the same alleged acts [or] simply seek the same damages or other relief already claimed in a companion contract cause of action.” (Careau & Co. v. Sec. Pac. (1990) 222 Cal.App.3d 1371, 1395). In fact, facts must be pleaded to show bad faith and demonstrate a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence, but rather by a conscious and deliberate act.” (Id.) Here, the fourth cause of action primarily on the same allegations raised in the breach of contract claims, which is insufficient. (Id.) Moreover, Cross-Complainants have not demonstrated how Movants unfairly interfered with their right to receive the benefits of the contract.

Accordingly, the Court SUSTAINS without leave to amend Movants’ demurrer to the fourth cause of action on this basis.

Fifth Cause of Action – Violation of Business and Professions Code ; 17200

Pursuant to Business and Professions Code section 17200 et seq, persons are prohibited from engaging in unfair, unlawful, deceptive, misleading, and fraudulent acts. “Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction.” (B&P ; 17203.) “Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17204 and complies with Section 382 of the Code of Civil Procedure.” (Id.) Any person “who has suffered injury in fact and has lost money or property as a result of such unfair competition” may prosecute an action under the UCL. (B&P ;17204.) “The 2004 amendment essentially stripped private plaintiffs of the power to maintain such a suit unless they could assert an entitlement to restitutionary relief in their own right. A private plaintiff unable to state a factual basis for personally recovering such relief can no longer maintain an action under the UCL.” (Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210, 245.)

“A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) "Although section 17200 contains sweeping language as to what is considered a business practice, standing to sue under the statute, as defined by Business and Professions Code section 17204, is confined ` ‘to any `person who has suffered injury in fact and has lost money or property\' as a result of unfair competition. [Citations.]’” (Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1553-1554 at 1554 [quoting Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320–321].) “[S]tatutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.

Movants demur to the Fifth Cause of Action for a violation of Business and Professions Code section 17200 because Cross-Complainants fail to allege an economic injury. (Demurrer at pg. 14.) In their opposition, Cross-Complainants concede this issue and voluntarily withdraw this cause of action. (Opposition at pg. 9.)

Accordingly, the Court SUSTAINS Movants demurrer to the fifth cause of action without leave to amend on this basis.

Sixth Cause of Action – Fraudulent Concealment

Movants lastly demur to the Sixth Cause of Action for Fraudulent Concealment because it has not been sufficiently pleaded.

The elements of fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) intent to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) the plaintiff sustained damage as a result of the concealment or suppression of fact. (Hambridge v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)

For a cause of action for fraudulent concealment to be actionable, there generally must exist a fiduciary relationship between the parties. (Fink v. Weisman (1933), 132 Cal.App. 724, 730.) In addition, courts have found other circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) possession of exclusive knowledge of material facts not known to the plaintiff; (2) active concealment of a material fact from the plaintiff; or (3) when partial representations are made but a material fact is withheld. (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)

Fraud-based claims are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) To advance a cognizable fraud claim, “every element of the cause of action . . . must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a fraud claim deficient in any material respect.” (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) “Concealment is a species of fraud, and ‘[f]raud must be pleaded with specificity.’” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878 (bold emphasis added).)

Here, Movants contend that there is no independent duty requiring an individual to disclose that he is creating a recording beyond what is stated in Penal Code section 632 and 632.7. (Demurrer at pg. 15.) Movants reason that Cross-Complainants are attempting to “revive the time-barred claims under Penal Code ;; 632 and 632.7” through the cause of action for fraudulent concealment.

In opposition, Cross-Complainants argue that the FACC has sufficiently alleged that Cross-Defendant Leo owed them a duty. However, the court disagrees. Upon review of the FACC, it merely states that “Leo Wang had a duty to disclose the fact that he was recording the conversation pursuant to California law.” (FACC ¶ 68.) In neither the FACC nor their opposition, have Cross-Complainant identified which statute they rely on for this claim. Conceivably, they are relying on Penal Code sections 632 and 632.7, but as stated above, such a claim would be time-barred. Without a recognized duty, this cause of action cannot be supported.

Accordingly, the Court SUSTAINS without leave to amend Movants’ demurrer to the Sixth Cause of Action on this basis.

Cross-Defendants have 20 days to file an Answer.

Case Number: ****9679    Hearing Date: May 19, 2021    Dept: O

Cross-Defendants Leo Wang and Jean Wangs’s motion for attorney fees is GRANTED in the amount of $20,761.58 as to Cross-Defendant Jean Wang.

Cross-Complainants Stella Yeh and Rambod Sootodeh’s motion for attorney fees is GRANTED in the amount of $5,407.50.

Cross-Defendants Leo Wang and Jean Wang (collectively “Cross-Defendants”) move for attorney fees pursuant to Code of Civil Procedure section 426.16 in the amount of $41,523.15. Cross-Complainants Stella Yeh and Rambod Sootodeh (collectively “Cross-Complainants”) also move for attorney fees as the prevailing party pursuant to Code of Civil Procedure section 426.16 in the amount of $10,815.00. In the interest of judicial economy, the court will address both motions as they both address which party is entitled to attorneys’ fees under the anti-SLAPP statute.

Under Section 425.16:

If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a Plaintiff prevailing on the motion, pursuant to Section 128.5.

(Civ. Code ; 425.16(c).) Section 425.16(c) authorizes the court to make an award of reasonable attorney fees to a prevailing defendant, which will adequately compensate the defendant for the expense of responding to a baseless lawsuit. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal. App. 4th 777, 785 (Dove Audio).) A prevailing defendant may also recover the costs and attorney’s fees on appeal under section 425.16(c). (Id.) An award of attorney fees to a prevailing defendant on an anti-SLAPP motion is mandatory. (Marshall v. Webster (2020) 54 Cal. App. 5th 275, 285, rev. denied (Dec. 23, 2020).) The purpose of section 425.16 is to provide relief in the form of costs and attorney’s fees to persons who have been victimized by meritless, retaliatory SLAPP lawsuits. (Liu v. Moore (1999) 69 Cal. App. 4th 745, 750.) A prevailing defendant may also recover the costs and attorney’s fees on appeal under section 425.16(c). (Dove Audio, supra, 47 Cal. App. 4th at p. 785.)

The present motions arise from a cross-complaint filed on August 17, 2018 that alleges three causes of action: (1) Breach of the Lease Agreement; (2) Violation of Penal Code sections 632 and 632.7; and (3) Intentional Infliction of Emotional Distress (“IIED”). Cross-Defendants filed an anti-SLAPP motion on all three counts. The court on November 28, 2018 denied Cross-Defendants’ anti-SLAPP motion because the court found that Cross-Defendants had not made the threshold showing that any of the challenged claims arose from protected activity. The matter was appealed, and the Appellate Court affirmed the Court’s denial of Cross-Defendants’ motion as to the First and Second Causes of Action, but reversed and remanded the matter back to this Court with instructions to undertake the second prong of the anti-SLAPP statute analysis as to the Third Cause of Action for IIED. On December 15, 2020, the court held a hearing as to the IIED cause of action and took the matter under submission and later held that Cross-Complainants had failed to demonstrate minimal merit with respect to the IIED claim as to Cross-Defendant Jean Wang (“Jean Wang”), but that Cross-Complainants demonstrated minimal merit with respect to Cross-Defendant Leo Wang (“Leo Wang”). Thus, the court granted Cross-Defendants’ anti-SLAPP motion on the IIED claim, but only as to Jean Wang.

Whether Cross-Complainant was the Prevailing Party

On one hand, Cross-Complainants did ultimately prevail in opposing the anti-SLAPP motion with respect to the First and Second Causes of Action, but failed on the Third Cause of Action for IIED against Jean Wang. Thus, the court can only find that of the Cross-Defendant Jean Wang was the only prevailing party. Because Cross-Defendant Jean Wang was the prevailing defendant in the anti-SLAPP motion, the court finds that she is entitled to attorney fees and costs.

However, the present motion was brought by both Cross-Defendants. Furthermore, Cross-Defendants’ invoices do not provide a detailed breakdown of the amount of time spent on Cross-Defendant Leo Wang’s issues versus Cross-Defendant Jean Wang’s issues. Thus, the court proportioned half of the requested attorney fees to each Cross-Defendant, and awards only half the amount stated in Cross-Defendants’ motion (i.e., $20,781.58).

Attorney fees and costs are awarded to Cross-Defendant Jean Wang in the amount of $20,781.58.

Whether Cross-Defendants’ Anti-SLAPP Motion was Frivolous

Although Cross-Defendants did not prevail on the motion for the First and Second Causes of Action (nor the Third Cause of action as to Leo Wang), Cross-Defendants’ contentions were not frivolous or intended to cause unnecessary delay because they were successful having the Third Cause of Action for IIED stricken from the complaint as to Cross-Defendant Jean Wang. While Cross-Complainants ultimately prevailed in keeping most of the causes of action in their Cross-Complaint against the Cross-Defendants, the standard in determining whether Cross-Complainants are entitled to attorney fees are determined by whether the special motion to strike is frivolous or is solely intended to cause unnecessary delay. (Civ. Code ; 425.16(c).) The court cannot make such a finding. However, as with Cross-Defendants’ motion for attorney fees, the court must find that the anti-SLAPP motion was in fact without merit as to Cross-Defendant Leo Wang. Here, Cross-Complainants specify that they only seek an award of attorney fees as to Cross-Defendant Leo Wong, but also seek an unproportioned amount of $10,815.00 against both Cross-Defendants. Thus, the court will also award only half the amount stated in Cross-Complainants’ motion.

Thus, Cross-Complainant’s motion is GRANTED as to Leo Wang in the amount of $5,407.50