Judge Bruce G. Iwasaki, Case 22STCV33144 2023-03-06 Tentative Ruling

Tentative Ruling: The Demurrer is sustained in its entirety. Leave to amend is granted on the first, second, third, fifth and sixth causes of action.

Hyun Jung Lee (Plaintiff or Lee) sued Packo Investments, Inc., Allen H. Park, James Lee, Saenz Rodolfo, and Chae & Saenz Rodolfo Trust for violation of privacy, violation of quiet use and enjoyment, negligence, attempted extortion, breach of contract, and intentional infliction of emotional distress.

Plaintiff alleged that the Property suffered various defects such as “leaking of ceiling, plumbing and defective refrigerator, dishwater and etc.” She alleges five facts regarding Defendants’ “substantially threatening, unreasonably unconscionable” conduct:

· “They informed any trivial matters by email at 2 AM, violating LEE’s personal and private life;

· “Their notice is always not official, nor is politely. The notices including emails are always threatening and intimidation such as “your lease is terminated, because you violated any trivial matters.”

· “They informed anytime and by anyways that therefore new tenants will be inside to see for their new lease.

· “This kind of conduct did not consider plaintiff tenant’s status and conditions (i.e., anytime and anyplace).”

In September 2022, Plaintiff allegedly requested Defendants to repair torn screen doors and to clean the carpet. In response, she claims, they told her to move out. She further alleges that she deposited rent payments for October 2022, and that she “legally performed the renewal of the lease starting 10/1/2022 and ending 3/31/2024.” However, she avers, Defendants sought to create a new lease for higher rent. When Plaintiff declined to sign the lease, Defendants allegedly sent e-mail notices indicating they would show the apartment to new tenants, conducted physical visits to inform Plaintiff to move out, and threatened to change the locks. Finally, she alleges that Defendants informed her that “legal action against them would be impossible,” threatened her with the costs of litigation and court fees, and demanded increased rent.

Packo Investments, Inc., Allen H. Park, and James Lee (Defendants) demur to the entire Complaint for uncertainty and failure to state sufficient facts. Defendants Saenz Rodolfo and Chae & Saenz Rodolfo Trust joined in the demurrer. Plaintiff did not file an opposition.

The parties did not meet and confer as Plaintiff failed to meaningfully respond to Defendants’ counsel’s e-mail. (McElroy Decl., ¶¶ 2-10.) Nevertheless, insufficient meet-and-confer efforts are not a basis to overrule or sustain the demurrer and so the Court considers the merits of the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

The elements of a claim for invasion of privacy are “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40.) “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.” (Id. at p. 37.)

Here, the first two elements are met given that Lee alleged that Defendants violated her reasonable expectation of privacy in her home. (Folgelstrom v. Lamps Plus, Inc. (2011) 195 Cal.App.4th 986, 990 [“Residential privacy interests have been recognized in a number of cases”].) However, Defendants take issue with the third element.

Lee alleges that Defendants sent her threatening e-mails at 2:00 a.m. regarding terminating her lease and allowing other tenants to view her unit, knocked on her door and providing her notice of lease violations. These allegations do not describe a serious invasion of privacy. E-mails per se are not an “egregious breach of [] social norms,” even if they are sent at 2:00 a.m. And landlords have a right to enter the property and give notice accordingly. (See generally, Civ. Code, § 1954, subds. (d)(1)–(2).) This conduct does not give rise to a claim for violation of privacy. The demurrer to the first cause of action is sustained. The Court will grant Plaintiff leave to amend the Complaint to set forth facts constituting a cause of action.

The covenant of quiet enjoyment arises impliedly between a landlord and tenant and affords the tenant quiet enjoyment and possession of the premises. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588.) “The covenant of quiet enjoyment ‘insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant’s right to use and enjoy the premises for the purpose contemplated by the tenancy.’ ” (Ibid.) The covenant is partially codified in Civil Code section 1927.

Conduct that violates the covenant includes using or threatening to use “force, willful threats, or menacing conduct constituting a conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person.” (Civ. Code, § 1940.2, italics added.) “Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment. To be actionable, the landlord’s act or omission must substantially interfere with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy.” (Andrews v. Mobile Aire Estates, supra, 125 Cal.App.4th at p. 589.)

Lee relies on the same allegations as in the first cause of action. Again, the Court does not find the alleged conduct to be so unreasonable that it interferes with her quiet enjoyment of the premises or otherwise creating an apprehension of harm. However, Lee alludes to certain defects on the premises that may form the basis of this claim or for breach of the warranty of habitability. (Complaint, ¶ 12.) Thus, the demurrer to the second cause of action is sustained with leave to amend.

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co.¿(2006) 137 Cal.App.4th 292, 318.) “A landlord owes a duty of care to a tenant to provide and maintain safe conditions on the leased premises.” (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134.)

Defendants argue there was no breach, causation, or damages. The Complaint reincorporates the facts above and adds in that Defendants violated Civil Code section 1946.2. That section provides that “after a tenant has continuously and lawfully occupied a residential real property for 12 months, the owner of the residential real property shall not terminate the tenancy without just cause, which shall be stated in the written notice to terminate tenancy.” The statute gives examples of “just cause,” which include default in rent, breach of a material term in the lease, and committing waste. (Civ. Code, § 1946.2, subds. (b)(1)(A)–(K).)

The Complaint fails to plead that the landlord breached a duty. Assuming Defendants owed Plaintiff a duty, the alleged acts described above do not result in a breach of that duty. The acts are expressly allowed by statute. Plaintiff also does not describe how she was damaged by those acts.

To the extent that Plaintiff seeks to invoke section 1946.2 under a negligence per se theory of liability, the allegations are insufficient. She cites to “at-fault just cause,” but does not allege that she was evicted or no longer residing at the Property. Thus, the demurrer to the negligence claim is sustained with leave to amend.

Civil extortion is a cause of action for recovery of money obtained by the wrongful threat of criminal or civil prosecution. (See Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 426, disapproved on other grounds in Silberg v. Anderson (1990) 50 Cal.3d 205, 219.) “It is essentially a cause of action for moneys obtained by duress, a form of fraud.” (Id. at p. 426.)

Defendants contend there was no attempt to obtain property from Plaintiff and they were legally permitted to request that Plaintiff sign a new lease.

The Complaint cites to Penal Code section 524, which defines attempted extortion as any person “who attempts, by means of any threat, such as is specified in Section 519 of this code, to extort property or other consideration from another.” Section 519 defines threats as: “[1] To do an unlawful injury to the person or property of the individual threatened or of a third person. [2] To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime. [3] To expose, or to impute to him, her, or them a deformity, disgrace, or crime. [4] To expose a secret affecting him, her, or them. [5] To report his, her, or their immigration status or suspected immigration status.”

Plaintiff’s allegations are uncertain here because she merely reincorporates the five acts above and states, in conclusory fashion, that Defendants’ conduct was “substantially threatening and blackmail.” Even assuming that Defendants’ threats were “threatening and intimidati[ng],” it is unclear how they were attempting to obtain money beyond that to which they were entitled (payment in the form of rent). Since there does not appear to be any facts to support this cause of action, the demurrer to the fourth cause of action is sustained without leave to amend.

To state a claim for breach of contract, a plaintiff must allege sufficient facts to establish: (1) a contract between the parties; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff from the breach. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

Defendants assert that they are not parties to the Lease and there is a lack of specificity as to the terms of the contract. Plaintiff appears to allege that there was a prior lease in existence, at least as of September 15, 2022. (Complaint, ¶ 75.) In that same month, Defendants reportedly breached the agreement by failing to repair torn screen doors and cleaning the carpet. (Ibid.) However, it is uncertain as to the terms of the lease, such as duration and rental amount, and Plaintiff’s performance under that lease is unclear.

Plaintiff also appears to allege that a new lease was created for the duration of October 1, 2022, and March 31, 2024 (Complaint, ¶ 76) and that she “performed by conduct” by paying the rent for October 2022 (¶ 74). Defendants then breached the lease when they “changed their mind and demanded [her] to sign [a] new lease with rent $2,950.00 thereof.” (Id. at ¶ 77.)

The allegations are uncertain. Lee seems to allege the existence of at least two contracts. She alleges that there was a breach of the prior lease, but provides no details of that lease, such as duration and whether she fully performed under that contract. The other contract appears to be implied, so the terms of such a contract may depend on the parties’ prior obligations from the first lease. Because she does not allege those terms, this cause of action fails.

Finally, the allegations that Defendants acted as agents of the landlord for purposes of respondeat superior is unavailing because breach of contract is not a tort. (Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 502 [discussing respondeat superior as a doctrine in which “ ‘an employer may be held vicariously liable for torts committed by an employee within the scope of employment’ ”]; Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 107 [“ ‘ “[c]onduct which merely is a breach of contract is not a tort” ’ ”].) The demurrer to the fifth cause of action is sustained with leave to amend.

Intentional infliction of emotional distress requires “(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 suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)

Whether the alleged conduct is outrageous is usually a question of fact to be determined beyond the pleading stage. (So v. Shin (2013) 212 Cal.App.4th 652, 672.) Nevertheless, “many cases have dismissed intentional infliction of emotional distress claims on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.” (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 356.)

Defendants argue that asking Plaintiff to move out does not constitute outrageous conduct. “ ‘[I]t is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities or threats which are considered to amount to nothing more than mere annoyances. The plaintiff cannot recover merely because of hurt feelings.’ ” (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128.) Plaintiff alleges that Defendants’ conduct was “substantially threatening and unreasonably unconscionable.” (Complaint, ¶ 89.) To the extent that she relies on her prior allegations in the other causes of action, such e-mails and notices are not so “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) Thus, the demurrer is sustained with leave to amend.

The demurrer is sustained as to the fourth cause of action without leave to amend. The demurrer is sustained as to the first, second, third, fifth, and sixth causes of action with leave to amend.