This case was last updated from Los Angeles County Superior Courts on 05/30/2019 at 04:40:11 (UTC).

LEO CHI HONG WANG VS STELLA YEH

Case Summary

On 10/03/2017 LEO CHI HONG WANG filed a Contract - Other Contract lawsuit against STELLA YEH. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are PETER A. HERNANDEZ and DUKES, ROBERT A.. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9679

  • Filing Date:

    10/03/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

PETER A. HERNANDEZ

DUKES, ROBERT A.

 

Party Details

Plaintiffs, Appellants and Cross Defendants

WANG LEO CHI HONG

WANG JEAN SUN

Defendants and Respondents

SOTOODEH HOSSEIN

SOTOODEH RAMBOD

YEH STELLA

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorney

FLEWELLING MARK T. ESQ.

Appellant Attorney

BAILEY ROBERT ARTHUR

Defendant Attorneys

JANNOL HENRY N. LAW OFFICES OF

ANGLIN FLEWELLING RASMUSSEN CAMBELL

KESHMIRI KAVEH

THOMASSEN MARILYN ROSE

Respondent Attorney

JANNOL HENRY NATHAN

Other Attorneys

FLEWELLING MARK TYLER

FLEWELLING MARK TYLER ESQ.

 

Court Documents

Complaint

10/3/2017: Complaint

Summons

10/3/2017: Summons

Civil Case Cover Sheet

10/3/2017: Civil Case Cover Sheet

Notice of Case Management Conference

10/5/2017: Notice of Case Management Conference

Unknown

10/19/2017: Unknown

Unknown

10/19/2017: Unknown

Unknown

11/29/2017: Unknown

Unknown

12/8/2017: Unknown

Demurrer

1/12/2018: Demurrer

Motion to Strike (not initial pleading)

1/12/2018: Motion to Strike (not initial pleading)

Unknown

2/6/2018: Unknown

Unknown

2/6/2018: Unknown

Opposition

3/7/2018: Opposition

Unknown

3/7/2018: Unknown

Unknown

3/7/2018: Unknown

Case Management Statement

3/7/2018: Case Management Statement

Reply

3/13/2018: Reply

Unknown

3/13/2018: Unknown

56 More Documents Available

 

Docket Entries

  • 10/01/2019
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice

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  • 05/24/2019
  • Appeal Record Delivered; Filed by Clerk

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  • 05/01/2019
  • Notice (Plaintiffs and Cross-Defendants' Notice of Deposit of Funds In Lieu of Undertaking); Filed by LEO CHI HONG WANG (Legacy Party); JEAN SUN WANG (Legacy Party)

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  • 04/18/2019
  • Appeal - Notice of Default Issued; Filed by Clerk

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  • 04/02/2019
  • Appeal - Reporter Appeal Transcripts Deposit Paid (Respondent)

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  • 03/27/2019
  • Appeal - Notice of Fees Due for Clerk's Transcript on Appeal; Filed by Clerk

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  • 03/12/2019
  • Appeal - Reporter Appeal Transcript Process Fee Paid (PAID BY APPELLANT); Filed by LEO CHI HONG WANG (Legacy Party); JEAN SUN WANG (Legacy Party)

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  • 03/12/2019
  • Notice Appellant Proceedings Not Reported/Recorded; Filed by Clerk

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  • 03/05/2019
  • Appeal - Reporter Appeal Transcript Process Fee Paid (Respondent); Filed by STELLA YEH (Respondent); RAMBOD SOTOODEH (Respondent)

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  • 02/26/2019
  • Notice of Default (NOA 12/19/18); Filed by Clerk

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110 More Docket Entries
  • 11/29/2017
  • Declaration; Filed by LEO CHI HONG WANG (Legacy Party)

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  • 10/19/2017
  • Rtn of Service of Summons & Compl; Filed by LEO CHI HONG WANG (Legacy Party); JEAN SUN WANG (Legacy Party)

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  • 10/19/2017
  • Rtn of Service of Summons & Compl; Filed by LEO CHI HONG WANG (Legacy Party); JEAN SUN WANG (Legacy Party)

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  • 10/19/2017
  • Rtn of Service of Summons & Compl; Filed by Attorney for Plaintiff

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  • 10/05/2017
  • Notice-Case Management Conference; Filed by Clerk

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  • 10/05/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 10/03/2017
  • Summons (on Complaint)

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  • 10/03/2017
  • Civil Case Cover Sheet; Filed by JEAN SUN WANG (Appellant); JEAN SUN WANG (Legacy Party)

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  • 10/03/2017
  • Complaint Filed

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  • 10/03/2017
  • Complaint; Filed by null

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Tentative Rulings

b'

Case Number: KC069679 Hearing Date: September 27, 2021 Dept: O

Plaintiffs\r\nLeo Chi Hong Wang (“Leo”) and Jean Sun Wang (“Jean” and collectively “Plaintiffs”\r\nand “Cross-Defendants”) initiated this action on October 3, 2017. They allege\r\nthat, on February 6, 2016, they entered into a lease for the real property\r\nlocated at 2817 Muir Woods Court, West Covina, CA (“Subject Property”) where\r\nDefendant Hossein Sotoodeh (“Sotoodeh”) was the owner of the Subject Property\r\nand Defendant Stella Yeh (“Yeh” and collectively “Defendants” and “Cross-Complainants”)\r\nwas the landlord. Plaintiffs allege that Defendants breached the lease by\r\nrefusing to pay for the air conditioning repairs and for entering the Subject Property\r\nwithout permission. The operative Second Amended Complaint, filed May 31, 2018,\r\nasserts the following causes of action:

\r\n\r\n

1. \r\nBreach\r\nof Residential Lease;

\r\n\r\n

2. \r\nBreach\r\nof Covenant of Quiet Enjoyment;

\r\n\r\n

3. \r\nViolation\r\nof Civil Code § 1950.5(1);

\r\n\r\n

4. \r\nViolation\r\nof Civil Code § 1950.5(k)(1); and

\r\n\r\n

5. \r\nIntentional\r\nInterference with Contractual Relations.

\r\n\r\n

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

\r\n\r\n

1. \r\nBreach\r\nof Lease Agreement;

\r\n\r\n

2. \r\nInvasion\r\nof Privacy;

\r\n\r\n

3. \r\nIntentional\r\nInfliction of Emotional Distress;

\r\n\r\n

4. \r\nBreach\r\nof the Implied Covenant of Good Faith and Fair Dealing;

\r\n\r\n

5. \r\nViolation\r\nof Business and Professions Code § 17200; and

\r\n\r\n

6. \r\nFraudulent\r\nConcealment.

\r\n\r\n

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

\r\n\r\n

Trial Setting Conference is set\r\nfor September 27, 2021.

\r\n\r\n

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

\r\n\r\n

Judicial\r\nNotice

\r\n\r\n

The\r\nCourt grants Movants’ Request for Judicial\r\nNotice of Cross-Complainant Sotoodeh’s response to Special Interrogatory No.\r\n32, which was included in Movants’ second set of Special Interrogatories. (Bockrath\r\nv. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 83-84.)

\r\n\r\n

Legal\r\nStandard

\r\n\r\n

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

\r\n\r\n

Demurrer

\r\n\r\n

Movants\r\ndemur to the Second through Sixth Causes of Action raised in the FACC on the\r\ngrounds that they are untimely and fail to state sufficient facts to constitute\r\nclaims against them.

\r\n\r\n

Timeliness

\r\n\r\n

Movants\r\nfirst argue that the second through sixth causes of action are untimely\r\npursuant to Penal Code sections 632 and 632.7.

\r\n\r\n

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

\r\n\r\n

Movants\r\nassert that these five causes of action all rely on the allegedly illegal\r\nrecording that Cross-Defendant Leo took during the property inspection in\r\nAugust 2016, which would fall within the purview of Penal Code sections 632 and\r\n632.7. (Demurrer at pg. 7.) Also, Movants show that the FACC alleges that damages\r\nare sought pursuant to violations of Penal Code sections 632 and 632.7.\r\n(Demurrer at pg. 8; FACC ¶ 13.) Thus, even though Cross-Complainants removed\r\nthose statutory causes of action in their amended pleadings, Movants reason\r\nthat the FACC still relies on those statutes. (Demurrer at pg. 8.)

\r\n\r\n

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

\r\n\r\n

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

\r\n\r\n

Second\r\nCause of Action – Invasion of Privacy

\r\n\r\n

Movants\r\nnext demurs to the Second Cause of Action for invasion of privacy because it\r\nfails to allege sufficient facts to constitute a cause of action against them.

\r\n\r\n

“A\r\nprivacy violation based on the common law tort of intrusion has two elements.\r\nFirst, the defendant must intentionally intrude into a place, conversation, or\r\nmatter as to which the plaintiff has a reasonable expectation of privacy.\r\nSecond, the intrusion must occur in a manner highly offensive to a reasonable\r\nperson.” (People v. Bollaert (2016) 248 Cal.App.4th 699, 712,\r\nquoting Hernandez v. Hillsides, Inc. (2009) 47 Cal.App.4th 272,\r\n286.) “Actionable invasions of privacy must be sufficiently serious in their\r\nnature, scope and actual or potential impact to constitute an egregious breach\r\nof the social norms underlying the privacy right. Thus, the extent and gravity\r\nof the invasion is an indispensable consideration in assessing an alleged\r\ninvasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994)\r\n7 Cal. 4th 1, 37.)

\r\n\r\n

“Whether\r\nplaintiff has a reasonable expectation of privacy in the circumstances and\r\nwhether defendant’s conduct constitutes a serious invasion of privacy are mixed\r\nquestions of law and fact. If the undisputed material facts show no reasonable\r\nexpectation of privacy or an insubstantial impact on privacy interests, the\r\nquestion of invasion may be adjudicated as a matter of law.” (Id. at\r\n40.)

\r\n\r\n

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

\r\n\r\n

In\r\nopposition, Cross-Complainants argue that the reasonableness of one’s\r\nexpectation of privacy is fact specific, and for the purposes of demurrer, all\r\nallegations must be accepted as true. (Opposition at pp. 5, relying on Lyon\r\nv. Gross (1942) 12Ca1.2d 659 and Serrano v. Priest (1971) 5 Cal.3d\r\n584.) In reply, Movants assert that reasonableness is based on an objective\r\nstandard, and it is immaterial whether Cross-Complainants’ believed that their\r\nconversation was private.

\r\n\r\n

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

\r\n\r\n

Accordingly,\r\nthe Court OVERRULES Movants’ Demurrer to the Second Cause of Action on this\r\nbasis.

\r\n\r\n

Third\r\nCause of Action – Intentional Infliction of Emotional Distress

\r\n\r\n

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

\r\n\r\n

The\r\nelements of an IIED cause of action are: (1) extreme and outrageous conduct by\r\nthe defendant; (2) intention to cause or reckless disregard of the probability\r\nof causing emotional distress; (3) severe emotional suffering; and (4) actual\r\nand proximate causation of the emotional distress. (Moncada v. West Coast\r\nQuartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012)\r\n207 Cal.App.4th 999, 1009.)

\r\n\r\n

To\r\nsatisfy the element of extreme and outrageous conduct, Cross-Defendants’\r\nconduct “‘must be so extreme as to exceed all bounds of that usually tolerated\r\nin a civilized society.’” (Moncada, supra, 221 Cal.App.4th\r\nat 780.) “Behavior may be considered outrageous if a defendant (1) abuses a\r\nrelation or position which gives him power to damage the plaintiff’s interest;\r\n(2) knows the plaintiff is susceptible to injuries through mental distress; or\r\n(3) acts intentionally or unreasonably with the recognition that the acts are\r\nlikely to result in illness through mental distress.” (McDaniel v. Gile (1991)\r\n230 Cal.App.3d 363, 372.)

\r\n\r\n

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

\r\n\r\n

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

\r\n\r\n

The\r\ncourt disagrees. The FACC alleges that Cross-Complainant Sotoodeh experienced a\r\nheart attack before Movants signed the Lease and he continued to have heart\r\ncomplications. (FACC ¶¶ 14, 19.) Furthermore, Cross-Complainant Yeh also had\r\nhealth issues that required surgery. (FACC ¶ 19.) Movants were aware of\r\nCross-Complainants’ health issues. (Id.) It is further alleged that Cross-Defendant\r\nLeo was often aggressive in his interactions with Cross-Complainant Yeh and\r\nwould harass her (FACC ¶ 20) Also, it is alleged that, when Cross-Complainant Sotoodeh\r\ninteracted with Cross-Defendant Leo on August 3, 2016, Cross-Defendant Leo\r\nthreatened Cross-Complainant Sotoodeh and made gestures as if he were going to\r\nstrike Cross-Complainant Sotoodeh, which caused him to “immediately\r\nretreated to his own home to take his heart medication.” (FACC ¶ 23.)\r\nFurthermore, the FACC alleges that Cross-Defendant Leo was impermissibly recording\r\nCross-Complainants’ conversation during the property inspection and was trying\r\nto avoid detection. (FACC ¶¶ 29-30.) Thus, Cross-Defendant Leo’s alleged\r\nconduct exceeded what a civilized society would allow. (Moncada, supra,\r\n221 Cal.App.4th at 780.) Therefore, the court\r\nfinds that Cross-Complainants have met their burden at the pleading stage of\r\nshowing that Leo’s conduct was outrageous.

\r\n\r\n

Accordingly,\r\nthe Court OVERRULES Movants’ demurrer to the Third Cause of Action on this\r\nbasis.

\r\n\r\n

Fourth\r\nCause of Action – Breach of Implied Covenant of Good Faith and Fair Dealing

\r\n\r\n

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

\r\n\r\n

The\r\nelements for breach of the implied covenant of good faith and fair dealing are:\r\n(1) existence of a contract between plaintiff and defendant; (2) plaintiff\r\nperformed his contractual obligations or was excused from performing them; (3)\r\nthe conditions requiring defendant’s performance had occurred; (4) the\r\ndefendant unfairly interfered with the plaintiff’s right to receive the\r\nbenefits of the contract; and (5) the plaintiff was harmed by the defendant’s\r\nconduct. (Merced Irr. Dist. V. County of Mariposa (E.D. Cal. 2013) 941\r\nF.Supp.2d 1237, 1280 (discussing California law).) “‘[T]he implied covenant of\r\ngood faith and fair dealing is limited to assuring compliance with the express\r\nterms of the contract, and cannot be extended to create obligations not\r\ncontemplated by the contract.’” (Ragland v. U.S. Bank Nat. Assn. (2012)\r\n209 Cal.App.4th 182, 206 (quoting Pasadena Live v. City of Pasadena\r\n(2004) 114 Cal.App.4th 1089, 1094).)

\r\n\r\n

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

\r\n\r\n

Under\r\nthe circumstances, the claim is not well pleaded. A\r\nclaim for breach of the implied covenant of good faith and fair dealing must “go\r\nbeyond the statement of a mere contract breach” and not “rel[y] on the\r\nsame alleged acts [or] simply seek the same damages or other relief already\r\nclaimed in a companion contract cause of action.” (Careau & Co. v.\r\nSec. Pac. (1990) 222 Cal.App.3d 1371, 1395). In fact, facts must be\r\npleaded to show bad faith and demonstrate a failure or refusal to discharge\r\ncontractual responsibilities, prompted not by an honest mistake, bad judgment\r\nor negligence, but rather by a conscious and deliberate act.” (Id.)\r\nHere, the fourth cause of action primarily on the same allegations raised\r\nin the breach of contract claims, which is insufficient. (Id.) Moreover,\r\nCross-Complainants have not demonstrated how Movants unfairly interfered with their\r\nright to receive the benefits of the contract.

\r\n\r\n

Accordingly,\r\nthe Court SUSTAINS without leave to amend Movants’ demurrer to the fourth cause\r\nof action on this basis.

\r\n\r\n

Fifth\r\nCause of Action – Violation of Business and Professions Code § 17200

\r\n\r\n

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

\r\n\r\n

“A plaintiff alleging unfair business practices under these statutes must\r\nstate with reasonable particularity the facts supporting the statutory elements\r\nof the violation.” (Khoury v. Maly’s of California, Inc. (1993) 14\r\nCal.App.4th 612, 619.) "Although section 17200 contains sweeping language\r\nas to what is considered a business practice, standing to sue under the\r\nstatute, as defined by Business and Professions Code section 17204, is confined\r\n` ‘to any `person who has suffered injury in fact and has lost money or\r\nproperty\' 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.\r\nSuperior Court (2011) 51 Cal.4th 310, 320–321].) “[S]tatutory causes of\r\naction must be pleaded with particularity.” (Covenant Care, Inc. v. Superior\r\nCourt (2004) 32 Cal.4th 771, 790.

\r\n\r\n

Movants\r\ndemur to the Fifth Cause of Action for a violation of Business and Professions\r\nCode section 17200 because Cross-Complainants fail to allege an economic\r\ninjury. (Demurrer at pg. 14.) In their opposition, Cross-Complainants concede\r\nthis issue and voluntarily withdraw this cause of action. (Opposition at pg.\r\n9.)

\r\n\r\n

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

\r\n\r\n

Sixth\r\nCause of Action – Fraudulent Concealment

\r\n\r\n

Movants\r\nlastly demur to the Sixth Cause of Action for Fraudulent Concealment because it\r\nhas not been sufficiently pleaded.

\r\n\r\n

The\r\nelements of fraudulent concealment are (1) concealment or suppression of a\r\nmaterial fact; (2) by a defendant with a duty to disclose the fact to the\r\nplaintiff; (3) intent to defraud the plaintiff by intentionally concealing or\r\nsuppressing the fact; (4) the plaintiff was unaware of the fact and would not\r\nhave acted as he or she did if he or she had known of the concealed or\r\nsuppressed fact; and (5) the plaintiff sustained damage as a result of the\r\nconcealment or suppression of fact. (Hambridge v. Healthcare Partners\r\nMedical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)

\r\n\r\n

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

\r\n\r\n

Fraud-based\r\nclaims are subject to strict requirements of particularity in pleading. (Committee\r\non Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,\r\n216.) To advance a cognizable fraud claim, “every element of the cause of\r\naction . . . must be alleged in full, factually and specifically, and the\r\npolicy of liberal construction of pleading will not usually be invoked to\r\nsustain a fraud claim deficient in any material respect.” (Wilhelm v. Pray, Price,\r\nWilliams & Russell (1986) 186 Cal.App.3d 1324, 1331.) “Concealment is a\r\nspecies of fraud, and ‘[f]raud must be pleaded with specificity.’” (Blickman\r\nTurkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878\r\n(bold emphasis added).)

\r\n\r\n

Here,\r\nMovants contend that there is no independent duty requiring an individual to\r\ndisclose that he is creating a recording beyond what is stated in Penal Code section\r\n632 and 632.7. (Demurrer at pg. 15.) Movants reason that Cross-Complainants are\r\nattempting to “revive the time-barred claims under Penal Code §§ 632 and 632.7”\r\nthrough the cause of action for fraudulent concealment.

\r\n\r\n

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

\r\n\r\n

Accordingly,\r\nthe Court SUSTAINS without leave to amend Movants’ demurrer to the Sixth Cause of\r\nAction on this basis.

\r\n\r\n

Cross-Defendants\r\nhave 20 days to file an Answer.

\r\n\r\n

'

Case Number: KC069679    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

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