Judge: Barbara M. Scheper, Case: 23STCV28924, Date: 2024-04-05 Tentative Ruling

Case Number: 23STCV28924    Hearing Date: April 5, 2024    Dept: 30

Dept. 30

Calendar No.

Lee, et al. vs Cho, et. al., Case No. 23STCV28924

Tentative Ruling re:  Cross-Defendants’ Demurrer to Cross-Complaint

Plaintiffs and Cross-Defendants Leo Lee and Hyo S. Lee as Trustees of the Amended and Restated Lee 2003 Family Trust dated April 8, 2003, as Amended and Restated in its Entirety on December 23, 2019 (hereinafter “Cross-Defendants”)  demur to each cause of action in the First Amended Cross-Complaint of  Defendant and Cross-Complainant Sung Ryong Cho dba Mansoo Deungsim.  The demurrer is overruled as to the first three causes of action and sustained as to the fourth cause of action with ten (10) days leave to amend.  

The party against whom a complaint has been filed may object to the pleading, by demurrer, on several grounds, including the ground that the pleading does not state facts sufficient to constitute a cause of action and it cannot be determined how, or in what manner, Defendants committed or can be liable for such cause of action. (Code Civ. Proc. §§ 430.10(e) and 430.10(f).)

“A demurrer tests the sufficiency of a complaint as a matter of law.”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.”  (Ibid.) A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.) 

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.) 

Applicability of Res Judicata to the First, Second, and Third Causes of Action

“If all the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer.” (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 225.) “[R]es judicata describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Ibid.) “Claim preclusion applies when (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” (Id. at p. 226.) “Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.” (Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245.) “Res judicata serves as a bar to all causes of action that were litigated or that could have been litigated in the first action.” (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.)

The key inquiry in determining whether res judicata applies is whether the party, in a prior action, had an opportunity to litigate the claims raised in a subsequent action. (Ibid.) A judgment in favor of a defendant “constitutes a bar to any further suit on the same cause of action.” (Busick v. Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 973.) For the purposes of determining whether res judicata applies, a court determines whether the pleadings involve the same primary right. (The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779.) A plaintiff has a primary right “to be free from a particular injury, regardless of the legal theory on which liability for the injury is based.” (Id. at p. 779-80.) An injury “is defined in part by reference to the set of facts, or transaction, from which the injury arose.” (Id. at p. 780.)

            The Court finds that Cross-Defendants have not shown that the first, second, and third causes of action in the FAXC are barred by res judicata based on the Court’s decision in the Small Claims Action. First, Cross-Defendants did not request judicial notice of the pleadings from the Small Claims Action. Thus, the Court does not have the pleadings before it from the Small Claims Action to determine whether such action involved the security deposit. The Court does not dispute that the crux of the FAXC is that Cross-Defendants failed to return Cross-Complainant’s security deposit. The minute order from the Small Claims Action that Cross-Defendants have placed before the Court pursuant to their request for judicial notice merely states that “[a]ppearing counsel for the Trust indicates that a Request for Transfer was recently filed. The Court takes no action on the request, rather, the Court orders the entire case dismissed without prejudice.” (See Cross-Defendants’ Request for Judicial Notice at Exhibit A.) There is no indication from such minute order that the Small Claims Action was premised on Cross-Defendants’ failure to return Cross-Complainant’s security deposit. (Id.) In fact, the FAXC alleges that the Small Claims Action was removed from small claims court to this forum on the eve of trial. (FAXC, ¶ 22.)

            Therefore, the Court finds that res judicata does not bar the first, second, and third causes of action in the FAXC.

Applicability of Collateral Estoppel to the First, Second, and Third Causes of Action

“Collateral estoppel, or issue preclusion, precludes relitigation of issues argued and decided in prior proceedings.” (Planning & Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th 210, 226.) Collateral estoppel requires the same elements to be established to support the applicability of res judicata. (Conservatorship of Buchenau (2011) 196 Cal.App.4th 1037, 1040.) “The first element of collateral estoppel requires that the issue sought to be precluded be identical to one litigated in the prior adjudication, i.e., it asks whether identical factual allegations were at stake in the two proceedings.” (Ibid.)

The Court references its analysis as to its discussion of res judicata from above and incorporates it herein. As stated above, there is no indication that the issue of the security deposit was actually argued in the Small Claims Action. Also, the Court notes that the FAXC alleges other wrongful actions of Cross-Defendants unrelated to the retention of the security deposit. (FAXC, ¶¶ 9-17.) These actions include the failure to close parking lot gates, the illegal charging of parking fees, and rodent infestations. (Id.)

The Court finds that the doctrine of collateral estoppel does not bar the first, second, and third causes of action in the FAXC.

Sufficiency of the Fourth Cause of Action

To state a claim for negligence, a party must allege (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Cross-Defendants contend that the fourth cause of action for negligence in the FAXC fails because Cross-Complainant did not allege the existence of a duty of care that is owed to them. (Demurrer at pp. 8-9.) The Court disagrees. Cross-Complainant has alleged the existence of a duty by alleging that “LEE had a duty as a landlord to CHO to maintain a properly functioning commercial space for CHO’s restaurant business and not cause business harm and disruption.” (FAXC, ¶ 48.) Cross-Complainant has also alleged the existence of a breach of duty. (FAXC, ¶ 49.) Cross-Complainant, however, has not alleged proximate cause. (FAXC, ¶¶ 47-51.) Cross-Complainant has not stated a cause of action for negligence.

The Court therefore sustains Cross-Defendants’ demurrer to the fourth cause of action in the FAXC with leave to amend.