On 05/21/2018 a Personal Injury - Other Personal Injury case was filed by MUN JEONG CHOI against C L PROPERTY DEVELOPMENT LLC in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHO I.M. HYUN
C & L PROPERTY DEVELOPMENT LLC
CHO REGINA IMHYUN
CHO RICHARD YONGWON
CHO YONG WON
3/1/2019: Substitution of Attorney
5/21/2018: COMPLAINT FOR DAMAGES: 1. BREACH OF IMPLIED WARRANTY OF HABITABILITY;ETC
Substitution of Attorney; Filed by Mun Jeong Choi (Plaintiff)Read MoreRead Less
COMPLAINT FOR DAMAGES: 1. BREACH OF IMPLIED WARRANTY OF HABITABILITY;ETCRead MoreRead Less
Complaint; Filed by Mun Jeong Choi (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC706952 Hearing Date: January 13, 2020 Dept: 24
Defendants C&L Property Development LLC, I.M. Hyun Cho, Yong Won Cho, Terry Tae Young Cho, and Edward Cho’s demurrer to the Complaint is SUSTAINED with leave as to the eighth, through eleventh causes of action; and OVERRULED as to the remainder. Defendants’ motion to strike is moot.
On May 21, 2018, Plaintiff Mun Jeong Choi (“Plaintiff”) filed the instant habitability suit against Defendants C&L Property Development LLC, I.M. Hyun Cho, Yong Won Cho, Terry Tae Young Cho, and Edward Cho (“Defendants”). The Complaint states twelve causes of action for: 1) Breach of Implied Warranty of Habitability; Breach of Contract; Breach of Covenant of Good Faith and Fair Dealing; 4) Negligence; 5) Negligence Per Se; 6) Premises Liability; 7) Negligent Infliction of Emotional Distress; 8) Intentional Infliction of Emotional Distress; 9) Negligent Misrepresentation; 10) Intentional Misrepresentation; 11) Concealment; and 12) Unfair Business Practices. The Complaint alleges that Defendants failed to properly maintain the property, which led to specified uninhabitable conditions related to the door. Plaintiff alleges that an improperly maintained door closed on Plaintiff’s foot, injuring her.
On October 3, 2019, Defendants filed a demurrer and motion to strike against the Complaint. On October 21, 2019, Plaintiff filed oppositions. On October 25, 2019, Defendants filed reply.
Legal StandardA 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. 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. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)
Meet and Confer
Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration satisfies the meet and confer requirement. (Orr Decl. ¶¶ 2-12.)
Request for Judicial Notice
Defendant requests that the Court take judicial notice of C&L Development Company, LLC's Articles of Incorporation, as provided on the 4 California Secretary of State website, filed on February 27, 2003. (RJN Ex. A.) This request is GRANED. (Evid. Code § 452(c).)
First Cause of Action – Implied Warranty of Habitability
Defendants demur to this cause on the grounds that the lease was not a residential lease, and thus has no implied warranty. Indeed, a warranty of habitability is implied in all residential rental agreements. (Green v. Superior Court (1974) 10 Cal.3d 616, 629; accord CACI 4320.) However, Defendants rely on extrinsic evidence to establish that Plaintiff entered into a commercial lease. Defendants quote portions of the purported lease, without citation to the Complaint or judicially noticeable documents. In fact, Defendants do not even provide the purported lease, even though the Court would not consider such extrinsic evidence. Therefore, the demurrer is defective. Moreover, the Complaint repeatedly alleges that the premises was Plaintiff’s residence. (See e.g. Compl., ¶¶ 13, 17.) Defendants also cite to various paragraphs which reference Plaintiff’s ability to conduct ambiguous “business” at the premises. (Compl., ¶¶ 30, 37, 42, 46, 52, 57, 59, 64, 67.) However, the use the use of the phrase “business” does not establish that the lease itself was not residential.
Accordingly, Defendant’s demurrer is OVERRULED as to this cause.
Second and Third Causes of Action – Contract Claims
Defendants demur to the contract causes on the grounds that Plaintiff failed to attach the lease, and that the terms of the true lease do not show breach.
To allege a breach of contract cause of action, a complainant must plead the contract, their performance or excuse for non-performance, defendant’s breach, and damage to plaintiff therefrom. (Acoustics, Inc. v. Trepte Constr. Co. (1971) 14 Cal.App.3d 887, 913.) Although a written contract is usually pleaded by alleging its making and attaching a copy which is incorporated by reference, a written contract can also be pleaded by alleging the making and the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) A pleader’s legal characterization of a contract is not controlling, particularly when the contract is attached to the pleading. (Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1314, citing Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) However, courts will defer to plaintiffs’ reasonable interpretations. (Performance Plastering v. Richmond American Homes of Cal., Inc. (2007) 153 Cal.App.4th 659, 672.)
Defendant’s arguments rely extensively on the purported lease agreement, particularly with terms about Plaintiff’s obligations to inspect the premises. This argument must similarly be rejected as reliant on extrinsic evidence. This lease agreement is not attached to the complaint, or present in the record. Defendant simply insert the terms of their purported contract without citation to the record or judicially noticeable documents.
The Complaint otherwise states a claim for breach of contract and breach of the implied warranty. Plaintiff alleges the material terms, namely that Defendants agreed to provide a reasonably safe premises at the location. (Compl., ¶ 16.) Defendants breached this agreement by providing an unsafe premises, which included adequately safe doors. (Compl., ¶ 18.)
Defendants also argue that the implied warranty claim is superfluous. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) However, Defendant’s cited authority only discusses the implied warranty with regards to an insurance bad-faith suit, which include various tort remedies that would be unavailable here. (Ibid. [“In insurance cases there is a well-developed history recognizing a tort remedy for a breach of the implied covenant… A review of those cases demonstrates that the existence of this remedy has been justified by the “special relationship” existing between insurer and insured, which is characterized by elements of public interest, adhesion and fiduciary responsibility.”]) Defendants have not demonstrated that this authority would therefore be applicable to the instant case. The fact that one cause of action is duplicative or mirrors another cause of action is not a ground on which a demurrer must be sustained under section 430.10, in part because “it is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-890; see Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 [a court may sustain a demurrer for “duplicative pleading which adds nothing to the complaint by way of fact or theory”].) The argument that two causes of action are duplicative “is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Blickman, supra, 162 Cal.App.4th at 889-890.) Careau even phrases the rule regarding insurance bad-faith cases as permissive. (Careau, supra, 222 Cal.App.3d at 1395.)
Accordingly, Defendants’ demurrer is OVERRULED as to these causes.
Fourth and Sixth Causes of Action – Negligence and Premises Liability
Defendants demur to the negligence and premises liability causes of action on the grounds that the Complaint fails to demonstrate notice of the conditions.
The well-known elements of negligence are: 1) a legal duty owed to plaintiff to use due care; 2) breach of duty; 3) causation; and 4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) Premises liability is a form of negligence where a plaintiff must show 1) defendant owed a duty based on his ownership or control of property; 2) defendant was negligent in the use, maintenance or management of the property; 3) the plaintiff was harmed; and 4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) An injured plaintiff must allege the owner had notice of the defect in sufficient time to correct it, but failed to take reasonable steps to do so. (Howard v. Omni Hotels Mgmt. Corp. (2012) 203 Cal.App.4th 403, 43.)
“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn, supra, 147 Cal.App.4th at 747.)
Here, Plaintiff alleges constructive and actual knowledge of the dangerous condition. The Complaint alleges that Defendants knew that the dangerous conditions related to the door existed, and that they posed a safety hazard, but failed to disclose or warn Plaintiff of those issues. (Compl., ¶ 21.) These allegations of notice is sufficient for pleading purposes.
Accordingly, Defendants’ demurrer is OVERRULED as to theses causes.
Fifth Cause of Action – Negligence Per Se
Defendants demur to this cause claiming the lease was not residential, and therefore the cited statutes concerning habitability requirements do not apply. (CCP § 1941.1; Health & Safety Code § 17920.3.) While these statutes do apply only to residential units, this argument must be rejected. As discussed above, this argument is solely reliant on extrinsic evidence.
Accordingly, Defendants’ demurrer to the fifth cause of action is OVERRULED.
Seventh Cause of Action – Negligent Infliction of Emotional Distress
Defendants reiterate their demurrer to the negligence causes, arguing that because negligence is lacking, the NIED claim fails. Defendants’ demurrer is OVERRULED for the same reasons discussed above.
Eighth Cause of Action – Intentional Infliction of Emotional Distress
A cause of action for intentional infliction of emotional distress exists when there is: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Ibid.) The defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. (Ibid.) Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Ibid.)
Generally, the question of whether the conduct is in fact outrageous is a question of fact to be determined beyond the pleading stage. (So v. Shin (2013) 212 Cal.App.4th 652; Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004.) Nonetheless, “[w]hile those cases say that it is ‘usually’ a question of fact, several cases have dismissed intentional infliction of emotional distress claims on demurrer, concluding that the facts alleged did not amount to outrageous conduct as a matter of law.” (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 355-356; see, e.g., Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1608–1609; Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 416–417; see also CACI 1600, et seq.)
Courts have held that a tenant's emotional distress caused by landlord's alleged “knowing, intentional, and willful” failure to correct defective conditions of the premises can form the basis of an IIED claim. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921.) The Stoiber court held:
[I]t is clear that the availability of a remedy for breach of implied warranty of habitability does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord's acts are extreme and outrageous and result in severe mental distress. Whether this is so under the present allegations, presents a factual question it cannot be said as a matter of law that appellant has not stated a cause of action.
(Id. at 922 [emphasis added]; see also Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299.)
Here, Plaintiff has failed to allege sufficient facts showing that the failure to correct the dangerous door was knowing, intentional, and willful, such that there was outrageous conduct on the part of Defendants. The Complaint alleges generally that Defendants failed to correct certain uninhabitable conditions, principally the mis-hung door, and concludes that it was “willful” without factual support. (Compl., ¶ 74.)
Simply put, these facts do not rise to the level of outrageous conduct described by authority. For example, in Stoiber, the plaintiff complained of numerous persistent uninhabitable conditions that she repeatedly notified the defendants of. (Stoiber, supra, 101 Cal.App.3d at 912-913.) These included: heavy cockroach infestation, broken interior walls, broken deteriorated flooring on front porch, falling ceiling, deteriorated, overfused electrical wiring, lack of proper plumbing connection to sewage system in bathroom, sewage under bathroom floor, leaking roof, broken windows, and fire hazard. (Ibid.) Despite notice, the defendants knowingly, intentionally and willfully failed to correct the defective conditions by not even attempting to repair the defects, except on one occasion where they sent a plumber in response to a complaint regarding the toilet. (Id. at 913.)
In Erlach, a prior landlord had turned off tenant's utilities and prevented the tenant from returning to the property. (Erlach, supra, 226 Cal.App.4th at 1299.) The Court of Appeal held that there was a question of fact on whether the defendant acted outrageously, and as such could not be resolved at the pleading stage. (Ibid.)
Plaintiff presents no other facts that support their conclusion that the maintenance of the inhabitable conditions was intentional or willful beyond conclusory statements. Plaintiffs present no binding authority that negligent maintenance of a door frame is grounds for an IIED claim, absent outrageous conduct. The Court does not find that the alleged negligent maintenance of a door frame outrageous conduct. This is not extreme conduct as to exceed all bounds of that usually tolerated in a civilized community, but instead amounts to a mere indignity, annoyance, petty oppression, or other trivialities. (See Hughes, supra, 46 Cal.4th at 1050-1051.) Plaintiffs will need to allege additional facts regarding Defendants’ outrageous conduct in this context.
Accordingly, Defendants’ demurrer is SUSTAINED with leave to amend as to this claim.
Ninth through Eleventh Causes of Action – Fraud Claims
Defendants demur to the fraud claims on the grounds that they lack specific allegations cornering the misrepresentation and reliance.
The elements of a claim for fraud are (1) misrepresentation of a material fact; (2) knowledge of falsity or lack of a reasonable ground for belief in the truth of the representation; (3) intent to induce reliance; (4) actual and justifiable reliance by the plaintiff; and (5) resulting damage. (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 693.) It is hornbook law that fraud-based claims are subject to a stricter pleading standard then that governing most California causes of action. 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.) The heightened particularity requirement necessitates pleading facts that "show how, when, where, to whom, and by what means the representations were tendered." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) When fraud is alleged against a corporate defendant, the plaintiff must specifically allege the names of the persons who allegedly made the representation, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mutual Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
Here, the Complaint only generally alleges the elements of fraud. The specific misrepresentation is not alleged at all, beyond general statements to its effect. For example, the complaint alleges that Defendants represented to Plaintiff that the subject premises were safe and free from known dangerous hazards and/or hazards which a reasonable, professional inspection would have revealed, but contains no specific allegations as to who made these representations, by what means, their authority to speak on behalf of C&L, etc. (Compl., ¶ 93.) Plaintiff argues that the lease agreement contained specific representations, yet those specific representations are not found in the Complaint. As noted above, the lease agreement is not attached, despite that allegation that it is. (Compl., ¶ 11.)
Accordingly, Defendants’ demurrer is SUSTAINED with leave to amend.
Twelfth Cause of Action – UCL
Defendants demur to the UCL claim on the grounds that judicially noticeable documents reveal that the allegations concerning C&L’s status as an LLC are simply untrue.
To state a claim under Bus. & Prof. Code section 17200, a plaintiff must allege whether the conduct complained of is a fraudulent, unlawful or an unfair business practice. Under the fraud prong, a plaintiff must allege an affirmative misrepresentation, conduct, or business practice on the part of a defendant; or an omission in violation of a defendant’s duty to disclose; and that is likely to deceive members of the public. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.)
Under the UCL, any “unlawful”, “unfair”, or “fraudulent” business act or practice is deemed to be unfair competition. (State Farm Fire & Casualty v. Superior Court (1996) 45 Cal.App.4th 1093, 1102, criticized on different grounds by Cal-Tech Communications, Inc. v. L.A. Cellular Telephone (1999) 20 Cal.4th 163, 184.) The UCL’s remedies are limited because UCL actions are equitable in nature. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144.) Consequently, damages cannot be recovered; plaintiffs are generally limited to injunctive relief and restitution. (Ibid.)
While Defendants attack the allegations concerning their status as an LLC, that is not the sole basis of the UCL claim. The Complaint alleges that that Defendants make it their regular practice to disregard the rights of lessees and violate applicable laws concerning tenancy, such as the previously alleged conduct. (Compl., ¶ 104.) Indeed, the allegations concerning the LLC does not seem to have any real connection with the UCL claim. Defendants do not address whether the previously discussed unlawful conduct could form the basis of the claim. As discussed above, the Complaint alleges that Defendants violated various habitability statutes. Therefore, Defendants fail to meet their burden of persuasion on this point.
Accordingly, Defendants’ demurrer is OVERRULED as to this cause.
Motion to Strike: Punitive Damages
The motion to strike is moot per the ruling on demurrer.
Moving party is ordered to give notice.
Case Number: BC706952 Hearing Date: November 01, 2019 Dept: 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT
MUN JEONG CHOI
Case No.: BC706952
ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT
After review of the court file, the Court makes the following order:
Department 3 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.
AT THE DIRECTION OF DEPARTMENT 1:
case is hereby transferred and reassigned to the following Independent Calendar
The Order is signed and filed this date, and incorporated herein by reference. Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.
Upon receipt of this notice, counsel for Plaintiff shall give notice to all parties of record.
DATED: November 1, 2019 ___________________________
Hon. Jon Takasugi
Judge of the Superior Court