Judge Christopher K. Lui, Case Number: 23STCV11902, Date: 2024-11-06 Tentative Ruling

Plaintiff tenants alleges that Defendant landlords illegally listed the subject property as a boarding house and failed to remedy uninhabitable conditions. Defendants also allegedly unlawfully removed Plaintiffs from their occupancy by tearing down the doors and removing or destroying their personal belongings without consent.

Defendants Westmoreland Los Angeles, LLC, Defendants Kap Pong Kim and Chung Suk Kim, individually, and as a trustee of the Kim Kap Pon and Chung Suk Kim Trust and Defendant Jamie Jiyoon Kim separately demur to the Second Amended Complaint. Defendants Kap Pong Kim and Chung Suk Kim, individually, and as a trustee of the Kim Kap Pon and Chung Suk Kim Trust also move to strike portions of the Second Amended Complaint.

Defendants Westmoreland Los Angeles, LLC’s demurrer to the Second Amended Complaint is OVERRULED as to the second, fifth, seventh, eighth, ninth and tenth causes of action and SUSTAINED without leave to amend as to fourteenth and fifteenth causes of action.

Defendants Kap Pong Kim and Chung Suk Kim, individually, and as a trustee of the Kim Kap Pon and Chung Suk Kim Trust’s demurrer to the Second Amended Complaint is OVERRULED as to the second, fifth and tenth causes of action and SUSTAINED without leave to amend as to the third, sixth, eighth, ninth, eleventh, fourteenth and fifteenth causes of action.

Defendants Kap Pong Kim and Chung Suk Kim, individually, and as a trustee of the Kim Kap Pon and Chung Suk Kim Trust’s motion to strike portions of the Second Amended Complaint is:

MOOT as to ¶¶ 140, 170, 197, 205, 245, 246, the third, sixth, eighth, ninth, fourteenth and fifteenth causes of action.

GRANTED without leave to amend as to ¶¶ 120, 150, 159, first and fifth causes of action re: punitive damages.

DENIED as to ¶ 268; sixteenth cause of action; treble damages pursuant to Civil Code, § 3345.

Defendants are to answer the remaining allegations of the Second Amended Complaint within 10 days.

The form Declaration of Jamie Kim reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

Defendant Westmoreland Los Angeles, LLC demurs to the First Amended Complaint as follows:

Defendant argues that, as to each Plaintiff, there are insufficient allegations that there was notice to the landlord within a reasonable time after the tenant’s discovery of the condition, and that the landlord failed to correct the deficiency after being given a reasonable time.

The California Supreme Court has held that because “under contemporary conditions, public policy compels landlords to bear the primary responsibility for maintaining safe, clean and habitable housing in our state,” there is a warranty of habitability implied in residential leases in California. (Green, supra, 10 Cal.3d at p. 627.) In Green, the court explained that “[t]his [*1297] implied warranty of habitability does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that ‘bare living requirements’ must be maintained. In most cases substantial compliance with those applicable building and housing code standards which materially affect health and safety will suffice to meet the landlord’s obligations under the common law implied warranty of habitability we now recognize.” (Id. at p. 637, fns. omitted.) The court held that a tenant may assert the landlord’s breach of the implied warranty of habitability as a defense to an unlawful detainer proceeding. (Id. at pp. 631–637.) Moreover, a landlord’s obligation to maintain premises in a habitable condition is one that continues throughout the term of the lease. (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1204 [43 Cal. Rptr. 2d 836, 899 P.2d 905].) In the event of a landlord’s breach of the implied warranty of habitability, the tenant is not absolved of the obligation to pay rent; rather the tenant remains liable for the reasonable rental value as determined by the court for the period that the defective condition of the premises existed. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 914 [162 Cal. Rptr. 194]; Hinson v. Delis (1972) 26 Cal.App.3d 62, 70 [102 Cal. Rptr. 661], disapproved on another ground in Knight, supra, 29 Cal.3d 46, 55, fn. 7; see Code Civ. Proc., § 1174.2, subd. (a) [in unlawful detainer action after nonpayment of rent, where tenant proves substantial breach of habitability warranty, court determines reasonable rental value of premises in its untenantable condition].)

In addition to asserting a breach of the habitability warranty as a defense to an unlawful detainer action, a tenant may bring suit against the landlord for damages resulting from such breach. (Landeros v. Pankey (1995) 39 Cal.App.4th 1167, 1169 [46 Cal. Rptr. 2d 165]; Miller & Starr, Cal. Real Estate (3d ed. 2004) § 19:121, p. 362; Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2013) ¶¶ 3:97 to 3:100, pp. 3-40.4 to 3-40.5 (rev. # 1, 2009, 2013).) The elements of such an affirmative claim are the existence of a material defective condition affecting the premises’ habitability, notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages. (Quevedo v. Braga (1977) 72 Cal.App.3d Supp. 1, 7–8 [140 Cal. Rptr. 143] (Quevedo), disapproved on other grounds in Knight, supra, 29 Cal.3d at p. 55, fn. 7; see Friedman et al., supra, ¶ 3:100, p. 3-40.5 (rev. # 1, 2013).)

According to the Quevedo court, the measure of damages is the amount of rent that the landlord should refund, calculated by the difference between the [*1298] rent paid while the premises were uninhabitable and the rent that “would have been reasonable, taking into account the extent to which the rental value of the property was reduced by virtue of the existence of the defect.” (Quevedo, supra, 72 Cal.App.3d at p. Supp. 8.) Other methods of calculating a tenant’s damages for breach of the habitability warranty include (1) the difference between the fair rental value of the premises had they been in the condition warranted and their fair rental value with the uninhabitable condition (Green, supra, 10 Cal.3d at p. 638), and (2) the rent paid by the tenant multiplied by the percentage of the premises rendered unusable due to the uninhabitable condition (id. at p. 639, fn. 24; Cazares v. Ortiz (1980) 109 Cal.App.3d Supp. 23, 33 [168 Cal. Rptr. 108]).

In Stoiber v. Honeychuck, supra, 101 Cal.App.3d 903 (Stoiber), the court held that a tenant may maintain a tort action against his landlord for damages suffered by way of annoyance or discomfort or for injury to his personal property caused by the landlord’s failure to keep the premises in a habitable condition under the expansive rationale of Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal. Rptr. 97, 443 P.2d 561]. (Stoiber, supra, 101 [*1299] Cal.App.3d at pp. 916–919.) The Stoiber court concluded “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.” (Id. at p. 922.) Whether this is so under the present allegations presents a factual question; however, it cannot be said as a matter of law that appellant has not stated such a claim.

Furthermore, “the negligent infliction of emotional distress—anxiety, worry, discomfort—is compensable without physical injury in cases involving the tortious interference with property rights [citations].” (Stoiber, supra, 101 Cal.App.3d at p. 922.) Thus, if Sierra’s failure to repair the premises constitutes a tort grounded on negligence, appellant is entitled to prove his damages for emotional distress because the failure to repair must be deemed to constitute an injury to his tenancy interest (right to habitable premises), which is a species of property. (Id. at p. 923.)

Defendant Westmorland Los Angeles, LLC allegedly has owned the property only since June 2022. (2AC, ¶ 19.)

The second cause of actions set forth the general uninhabitable conditions at ¶¶ 125, 126.) At ¶¶ 97 – 105, the 2AC alleges the injuries suffered by each Plaintiff. ¶ 50 alleges in general terms that:

Through their respective tenancies, including in 2021 and 2022, each Plaintiff reported habitability problems including the pest infestations and plumbing problems, such as unreliable hot water and low water pressure, to Defendant Jeanie Lee. Each Plaintiff alleges on information and belief that Defendant Jeanie Lee, who functioned as an agent of the Kim Defendants and the Westmoreland Defendants, was fully aware of each of the deplorable conditions in the units and the common areas of the Property, because tenants other than Plaintiffs also reported problems such as pest infestations and defective plumbing to Defendant Jeanie Lee in 2021 and 2022.

At ¶¶ 51 – 57 alleges with more facts when each Plaintiff notified any of the Defendants of each defect, and Defendant’s failure to address each defect within a reasonable period. The Court finds that, reading the 2AC as a whole[1], this cause of action is sufficiently pled.

Defendant argues that the allegations are vague as to which Plaintiff was in a specific landlord-tenant relationship with which specific Defendants, in which period of time, as there are 8 different plaintiffs alleging to be in a landlord-tenant relationship with at least 5 different Defendants. Defendants also argue that the allegations of harm are vague and boilerplate.

First, there is generally no privity of estate between a sublessee and the master landlord and Plaintiffs do not allege any facts whereby they assumed the obligations of the master lease.

The general rule is that every sublease is subject to the terms and conditions of the master lease. ( Georgeous v. Lewis, 20 Cal.App. 255 [128 P. 768]; Pedro v. Potter, 197 Cal. 751 [242 P. 926, 42 A.L.R. 1165]; Agoure v. Plummer, 175 Cal. 543 [166 P. 311].) The addition of the provision, “This lease subject to all terms & conditions of the Hancock Master Lease,” merely states the rule of law. “The sublessee is not in privity of contract with the head landlord, since there are no contractual relations between them, and he is not in privity of estate with him, since there is no relation of tenancy between them and he merely holds possession for the lessee.” (1 Tiffany, Real Property [3d ed.], § 124.)

A subtenant who expressly assumes the obligations of the prime lease, with the consent of the landlord, comes into privity of contract with the landlord, and the latter can enforce the assumption agreement as a third party beneficiary. ( Hartman Ranch Co. v. Associated Oil Co., supra, 10 Cal. 2d at pp. 244-245; Marchese v. Standard Realty & Dev. Co., supra, 74 Cal. App. 3d at p. 147.) So while we view this as an assignment, BACC would not escape liability even as a sublessee. We turn then to the impact of foreclosure on BACC.

(Vallely Invs. v. Bancamerica Commercial Corp. (2001) 88 Cal. App. 4th 816, 823.)

However, a premises liability theory is negligence based, and does not require privity of estate or contract, but rather is a duty-based analysis.

[T]he landlord’s responsibility to inspect is limited. Like a residential landlord, the duty to inspect charges the lessor “only with those matters which would have been disclosed by a reasonable inspection.” (Citations omitted.) The burden of reducing or avoiding the risk and the likelihood of injury will affect the determination of what constitutes a reasonable inspection. The landlord’s obligation is only to do what is reasonable under the circumstances. The landlord need not take extraordinary measures or make unreasonable expenditures of time and money in trying to discover hazards unless the circumstances so warrant. When there is a potential serious danger, which is foreseeable, a landlord should anticipate the danger and conduct a reasonable inspection before passing possession to the tenant. However, if no such inspection is warranted, the landlord has no such obligation.

FOOTNOTES

n8 Lessors also have the duty to take reasonable steps to prevent injury when the landowner knows of a dangerous situation, and the landowner has the right and ability to reenter. (Citations omitted.)

In California, it has long been the law that a person may be liable for injuries resulting from his failure to use ordinary care in the management of his property. (Citations omitted.) It makes no difference whether the danger posed by said lack of care manifests itself in the form of a natural as opposed to an artificial condition on the property. (Citation omitted.) Further, a landowner may face liability for injury to another, incurred outside of the former’s property (on an adjacent street), if the injury is found to be caused by a traffic obstruction in the form of shrubbery growing from the property. (Citation omitted.)

The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998 [163 Cal. Rptr. 3d 637]; see Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal. Rptr. 2d 309, 911 P.2d 496] [negligence cause of action]; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 [114 Cal. Rptr. 2d 470, 36 P.3d 11] [cause of action for premises liability].) Premises liability “‘is grounded in the possession of the premises and the attendant right to control and manage the premises’”; accordingly, “‘mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.’” (Preston v. Goldman (1986) 42 Cal.3d 108, 118 [227 Cal. Rptr. 817, 720 P.2d 476], italics omitted, quoting Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368, 370 [178 Cal. Rptr. 783, 636 P.2d 1121].) But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases. (Rowland, supra, 69 Cal.2d at p. 119 [“The proper test to be applied to the liability of the possessor of land … is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others … .”]; accord, Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156 [60 Cal. Rptr. 2d 448, 929 P.2d 1239].) In determining whether a premises owner owes a duty to persons on its property, we apply [* 1159] the Rowland factors. (See, e.g., Thai v. Stang (1989) 214 Cal.App.3d 1264, 1271 [263 Cal. Rptr. 202] [Rowland analysis applies to premises liability cases].) Indeed, Rowland itself involved premises liability. (Rowland, at p. 110.)

Here, at ¶¶ 97 – 105, the 2AC alleges the injuries suffered by each Plaintiff to their persons and their personal property, and the alleged dangerous condition which caused such injuries.

Where alleged negligence has caused personal [*588] injury or property damage and economic loss, the existence of a duty of care is the rule, not the exception. (Civ. Code, § 1714; Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 339 [183 Cal. Rptr. 156] [“‘Duty’ is thus presumed …”].)

3. Seventh Cause of Action (Willful Interruption of Services, Civil Code, § 789.3).

4. Eighth Cause of Action (Retaliation – Violation of Civil Code, § 1942.5 and common law).

Defendant argues that Plaintiffs do not allege that the details of their attempts to exercise their rights against demurring Defendant.

(a) If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee’s rights under this chapter or because of the lessee’s complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following:

(1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, has provided notice of a suspected bed bug infestation, or has made an oral complaint to the lessor regarding tenantability.

(2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.

(3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice.

(4) After the filing of appropriate documents commencing a judicial or arbitration proceeding involving the issue of tenantability.

(5) After entry of judgment or the signing of an arbitration award, if any, when in the judicial proceeding or arbitration the issue of tenantability is determined adversely to the lessor.

In each instance, the 180-day period shall run from the latest applicable date referred to in paragraphs (1) to (5), inclusive.

In Aweeka v. Bonds (1971) 20 Cal. App. 3d 278, 281 [97 Cal. Rptr. 650] (Aweeka), the court held that not only may a tenant use retaliation as a defense to an unlawful detainer action, a tenant may also allege an affirmative cause of action for retaliatory eviction. In Aweeka the tenants gave notice to the landlord that unless repairs to their apartment were made, they would deduct the cost of the repairs from their rent. In response the landlord almost doubled their rent. After they were unsuccessful in obtaining an injunction against enforcement of the rent increase, the tenants voluntarily vacated the premises. In finding that a common law cause of action for retaliatory eviction existed on these facts, the court stated: “We can discern no rational basis for allowing such a substantive defense while denying an affirmative cause of action. It would be unfair and unreasonable to require a tenant, subjected to a retaliatory rent increase by the landlord, to wait and raise the matter as a defense only, after he is confronted with an unlawful detainer action and a possible lien on his personal property.” ( Id. at p. 281; see also Glaser v. Meyers (1982) 137 Cal. App. 3d 770, 776 [187 Cal. Rptr. 242] (Glaser).)

Here, Plaintiffs allege at ¶¶ 51 – 57 alleges with more facts when each Plaintiff notified the Defendants of each defect. ¶¶ 188 – 195 allege how Defendant retaliated against each Plaintiff following such complaints. This cause of action is sufficiently pled.

Defendant argues that the Complaint fails to allege any harassing conduct by demurring Defendant with factual support.

(a) It is unlawful for a landlord to do any of the following for the purpose of influencing a tenant to vacate a dwelling:

(3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of 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. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief.

[E]ach Plaintiff was in reasonable apprehension of harm because of the acts or failures to act by each Defendant. Each Plaintiff reasonably apprehended physical harm, such as bug bites and allergic reactions or symptoms, when the Owner-Manager Defendants refused or failed to correct the substandard conditions at the Property, including rampant pest infestations. Each Plaintiff reasonably apprehended harm in the prospect of imminent homelessness when Defendants reduced utility services at the Property; the Westmoreland Defendants, Jamie Kim, and Defendant Jeanie Lee colluded to evict Plaintiffs from the Property; and the Westmoreland Defendants and Jamie Kim allowed workers to tear down Plaintiffs’ units and discard their personal belongings while shouting at and threatening Plaintiffs.

The alleged apprehension of harm is clearly not the type contemplated by reasonable construction of Civil Code, § 1940.2(a)(3). The type of harm contemplated is that of being assaulted and/or battered due to the person engaged in the menacing conduct, not the attenuated annoyance or inconvenience which Plaintiffs allege. The Court reads the statute as requiring a direct connection between apprehension of harm attributed to the use, or threat to use, force, willful threats, or menacing conduct by the landlord, not from bugs and homelessness.

However, the allegation that the Westmoreland Defendants and Jamie Kim allowed workers to tear down Plaintiffs’ units and discard their personal belongings while shouting at and threatening Plaintiffs (¶ 202) is enough to satisfy the Civ. Code, § 1940.2(a) and survive demurrer.

Defendant argues that Plaintiffs have not identified the statute which was allegedly violated. Nor do Plaintiffs alleged facts whereby Defendant engaged in unfair or fraudulent business practices, nor injury in fact.

“[S]tatutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

Section 17200 “prohibits, and provides civil remedies for, unfair competition, which it defines as ‘any unlawful, unfair or fraudulent business act or practice.’ [Citation.] Its purpose ‘is to protect both consumers and competitors by promoting fair competition in commercial markets for goods [*1554] and services.’ [Citations.]” (Citation omitted.) 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].’ “ (Citation omitted.) In other words, to have standing to bring a section 17200 cause of action, a plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that the economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Citation omitted.) As to the injury in fact, or economic injury, requirement, the injury must be “ ‘an invasion of a legally protected interest which is (a) concrete and particularized, [citations]; and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’ “ [citations].’ [Citation.]” (Citations omitted.)

208. The uninhabitable conditions at the Property arise from Defendants’ failure to maintain and repair the Property as required by numerous state and municipal health, safety, and housing codes. Hence, the Owner-Manager Defendants’ conduct was unlawful because it violated the health, safety, and housing codes as set forth herein, including but not limited to Civil Code sections 1941-1941.1; Health and Safety Code section 17920.9; Civil Code sections 1927, 1940.2(a)(3), 1940.2(a)(4); Civil Code sections 3479 et seq.; Civil Code section 1714; Civil Code sections 789.3(a) and 789.3(b)(3); Civil Code section 1942.5; Civil Code section 1940.2(a)(3); and LAMC section 45.33.

209. Further, the Westmoreland Defendants refused to comply with LAHD’s Order to Pay Relocation Benefits, and Jamie Kim, as counsel for and agent of the Westmoreland Defendants, aided the Westmoreland Defendants in their attempt to avoid obligations imposed by the Order and under LAMC sections 161.701.1, et seq. and 163.00, et seq. These actions were unlawful business practices.

210. Each Plaintiff has suffered and/or continues to suffer irreparable harm due to Defendants’ continuing violations of the aforementioned statutes. Each Plaintiff has been injured in fact and has suffered a loss of money and/or property as a result of Defendants’ conduct, including, but not limited to: loss of their housing; overpayment of rent due to diminished value of the leasehold; payment of rent for an illegally rented dwelling; and other damages in an amount to be determined at trial, but which amount is within the jurisdictional requirements of this Court. Also, each Plaintiff suffered physical harm, such as but not limited to bug bites and allergic symptoms or reactions, and severe or extreme emotional distress, including fear of imminent homelessness.

214. Defendant Westmoreland and Defendant Chang Lee violated statutes including Civil Code sections 1941-1941.1 and 3479 et seq. These violations caused each Plaintiff injury in fact through a loss of property as set forth in paragraphs 98 to 105 herein, and in the overpayment of rent for an illegal and uninhabitable dwelling.

Here, Plaintiff’s claim that the Westmoreland Defendants illegally rented the dwellings and violated the enumerated statutes at ¶ 208, which caused Plaintiffs to pay rent that was more than the reasonable rental value. This is sufficient to plead a claim for restitutionary disgorgement.

“To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff. (Citations omitted.)” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 [italics omitted].)

Fraud must be pleaded with specificity rather than with “ ‘general and conclusory allegations.’ “ (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [132 Cal. Rptr. 2d 490, 65 P.3d 1255].) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)

We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [197 Cal. Rptr. 783, 673 P.2d 660].) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘ “to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” ‘ “ (Id. at pp. 216–217.)

238. Since at least 2011 and continuing until 2023, the Owner-Manager Defendants placed advertisements in a local Korean American newspaper called Kyocharo, stating that the units in the Property were available for lease for approximately $500-$700 a month. Those advertisements misrepresented that the Property is a legitimate “boarding house.” Induced by the fraudulent advertisements, each Plaintiff paid rent for the illegally converted units at the Property for years.

239. The Owner-Manager Defendants and their agents knew that their misrepresentations were false at the time they were made. The Owner-Manager Defendants intended to induce Plaintiffs’ reliance on the misrepresentations in furtherance of the Owner-Manager Defendants’ scheme to collect illegal rents on a property converted into a multi-unit residence without proper permits. The Owner-Manager

Defendants knew that they would not be able to collect illegal rents on the Property if they told Plaintiffs that their rental agreements violated the law.

240. In December 2022 the Westmoreland Defendants and Jamie Kim intentionally misrepresented to Plaintiffs that Plaintiffs had been ordered by a court (not LAHD, LADBS, or any other government agency) to vacate the Property. The Westmoreland Defendants and Jamie Kim made this statement in an attempt to intimidate Plaintiffs into leaving their homes at the Property, thereby allowing the Westmoreland Defendants to circumvent using the legal unlawful detainer process to attempt to evict Plaintiffs. By this action, the Westmoreland Defendants and Jamie Kim intended to cause Plaintiffs to leave the Property.

241. In December 2022, Defendant Jeanie Lee intentionally misrepresented to Plaintiffs that they should continue to pay rent to her because she intended to defend herself and Plaintiffs in the unlawful detainer action. On information and belief, Defendant Jeanie Lee had no intent to defend Plaintiffs’ tenancy rights.

This is a broad allegation spanning 12 years. There must be more specific allegations as to each Plaintiffs’ actual reliance on the advertisements.

Plaintiff’s claims fail for an additional reason: she has not shown that she actually relied on the alleged misrepresentations, which is an essential element of both claims of deceit. (Citation omitted.) “Actual reliance occurs when a misrepresentation is ‘“an immediate cause of [a plaintiff’s] conduct, which alters his legal relations,”‘ and when, absent such representation, ‘“he would not, in all reasonable probability, have entered into the contract or other transaction.”‘ [Citations.] ‘It is not … necessary that [a plaintiff’s] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct. … It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.’” (Citation omitted.)

The allegation at ¶ 240 that the Westmoreland Defendants and Defendant Jamie Kim intentionally misrepresented to Plaintiffs that Plaintiffs had been ordered by a court to vacate the property to intimidate Plaintiffs into leaving their homes does not pled out-of-pocket loss in reliance upon such representation.

[A] defrauded party may recoup his out-of-pocket losses and expenditures in reliance on the fraud, but he may not recover benefit-of-the-bargain damages (i.e., damages placing him in the economic position he would have occupied had the representation been true), at least where the recovery is not premised on a specific property actually acquired by the defrauded party.

Likewise, the allegation that in December 2022, Defendant Jeanie Lee intentionally misrepresented to Plaintiffs that they should continue to pay rent to her because she intended to defend herself and Plaintiffs in the unlawful detainer action is not pled with the requisite factual specificity as to each Plaintiff.

This cause of action is insufficiently pled and Plaintiffs have exhausted their opportunities to amend.

The demurrer to the fourteenth cause of action is SUSTAINED without leave to amend.

The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ (Citation omitted.)” (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50.)

This cause of action suffers from the same pleading deficiencies as the fourteenth cause of action for intentional misrepresentation.

Moreover, there is no cause of action for a negligent false promise. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159: “Simply put, making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise.”)

The demurrer to the fifteenth cause of action is SUSTAINED without leave to amend.

Defendants Kap Pong Kim and Chung Suk Kim, individually, and as a trustee of the Kim Kap Pon and Chung Suk Kim Trust’s Demurrer

The Declaration of Steven Y. Han reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

Defendants Kap Pong Kim and Chung Suk Kim, individually, and as a trustee of the Kim Kap Pon and Chung Suk Kim Trust demur to the Second Amended Complaint as follows:

The Kim Defendants argue that the 2AC still fails to allege when Plaintiff provided actual notice to the Kim Defendants.

The 2AC identifies Defendants Kap Pong Kim and Chung Suk Kim as the Owner-Manager Defendants. (2AC, Page 2, footnote 2.) The 2AC alleges at ¶¶ 20, 21 that the Kim Defendants had an ownership interest in the property from July 2002 through June 2022. ¶ 22 alleges that Defendant Jeanie Lee was a master tenant of and on0site manager of the property until February 9, 2023. The 2AC alleges on information and belief that Lee was the actual and/or ostensible agent of the Kim Defendants. “An allegation of material facts upon information or belief is a sufficient allegation.” (Buxton v. International Indem. Co. (1920) 47 Cal.App. 583, 591.)

“An agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from transactions within such limit, if they had been entered into on his own account, accrue to the principal.” Civil Code § 2330. “Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.” Civil Code § 2317. “A principal is bound by acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof.” Civil Code § 2334.

If the Kim Defendants were allowing Lee to carry herself out as the property manager and to collect rent on behalf of the landlord, at the very least a jury could find that she was the ostensible agent of the Kim Defendants. Here, ¶¶ 51 – 58, 60 of the 2AC specify the general time frames in which Plaintiffs informed Lee as agent of the Kim Defendants about various defects at the property, and Defendants’ failure to address the problems.

The Court incorporates by reference its discussion and ruling re: the Westmoreland demurrer as to this cause of action. For the reasons set forth therein, the Court finds that this cause of action is sufficiently pled.

Defendants argue that Plaintiffs allege that they entered into leases with Jeannie Lee (the master tenant), not the Kim Defendants. (2AC, ¶¶ 11 – 18, 22.)

In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. (Citations omitted.) 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 purposes contemplated by the tenancy. (Citations omitted)

The implied covenant of quiet enjoyment is partially codified in Civil Code section 1927, enacted in 1872, which provides: “An agreement to let [*589] upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.” The statutory covenant “guarantees the tenant against rightful assertion of a paramount title.” (Citation omitted.) Beyond the statutory covenant, the landlord is bound to refrain from action which interrupts the tenant’s beneficial enjoyment. (Ibid.)

(Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-89 [italics in original].)

The Court incorporates by reference its discussion above re: the Westmoreland demurrer as to why an alleged lease entered into with the master tenant, Lee, does not create privity of estate between the sublessees and the landlord via the master lease, absent express assumption by the sublessee of the master lease. (Johnson v. Couch (1961) 189 Cal.App.2d 687, 691; Vallely Invs. v. Bancamerica Commercial Corp. (2001) 88 Cal. App. 4th 816, 823.)

As such because each Plaintiff failed to allege a basis whereby these demurring Kim Defendants owed Plaintiffs a covenant of quiet enjoyment by virtue of a lease between the parties, this cause of action fails as against the Kim Defendants.

The demurrer to the third cause of action is SUSTAINED without leave to amend. Plaintiffs have exhausted their amendment opportunities.

The Kim Defendants argue that there are insufficient facts pled as against the Kim Defendants.

As the Court discussed in connection with the Westmoreland Defendants’ demurrer, a premises liability theory is negligence based, and does not require privity of estate or contract, but rather is a duty-based analysis. Here, at ¶¶ 97 – 105, the 2AC alleges the injuries suffered by each Plaintiff to their persons and their personal property, and the alleged dangerous condition which caused such injuries, for which the Kim Defendants could be held liable as owners of the subject property.

Defendants argue that there are insufficient facts pled whereby the Kim Defendants acted with intent to cause distress to Plaintiffs.

“The elements of the tort of intentional infliction of emotional distress are: ‘ “(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. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Ibid.)

(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.)

In Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921 [162 Cal. Rptr. 194], the appellate court concluded that the plaintiff tenant had stated a cause of action for intentional infliction of emotional distress by alleging that she had suffered “ ‘extreme emotional distress’ as a result of the [landlord’s and property manager’s] ‘knowing, intentional, and willful’ failure to correct defective conditions of the premises.” The Stoiber court observed that whether the failure to act was extreme and outrageous “under the present allegations, presents a factual question—it cannot be said as a matter of law that [plaintiff] has not stated a cause of action.” (Id., at p. 922.)

Here, the sixth cause of action alleges that the Owner-Manager Defendants intentionally failed to correct defective conditions of the premises[2]. ¶ 165 alleges that they were aware they had constructed 15 illegal units that were not safe or habitable, and refused to maintain or repair the property, intending to cause Plaintiffs extreme emotion distress. The Court finds that, because Plaintiffs allege they entered into a lease directly with Defendant Lee, there is no factual basis to infer that the Kim Defendants—who were not in contractual privity with Plaintiffs—intended to cause Plaintiffs intentional distress by way of intentional calculation.

Intentional infliction of emotional distress requires conduct which is especially calculated to cause and does cause the claimant mental distress of a very serious nature. (Ibid.) Although it was evident that defendants had caused plaintiffs untold distress, they had not acted with the purpose of causing them emotional distress. (Ibid.) The misconduct had been directed primarily at the decedent minor with plaintiffs looking on as helpless bystanders. ( Id., at pp. 172-173.) The fact that defendants’ conduct had not been especially calculated to cause plaintiffs’ distress was fatal to their claim.

The demurrer to the sixth cause of action is SUSTAINED without leave to amend. Plaintiffs have exhausted their amendment opportunities.

Defendants argue that the 2Ac does not factually allege retaliation by the Kim Defendants.

The Court incorporates by reference its discussion re: Civil Code, § 1942.5 and common law retaliatory eviction as to the Westmoreland demurrer.

Here, Plaintiffs allege at ¶¶ 51 – 57 alleges with more facts when each Plaintiff notified the Defendants of each defect. ¶ 186 only alleges:

The Kim Defendants retaliated against each Plaintiff by failing and refusing to repair the conditions of the Property after each Plaintiff requested repairs through the Kim Defendants’ agents. Plaintiffs’ individual complaints are set forth in paragraphs 50 to 58 herein.

Here, the language of Civil Code, § 1942.5 contemplates retaliation in the form of eviction, as does the common law cause of action for retaliatory eviction. The mere failure to repair the property, if it did not result in eviction of the tenant, does not state a cause of action against the Kim Defendants.

The demurrer to the eighth cause of action is SUSTAINED without leave to amend. Plaintiffs have exhausted their amendment opportunities.

The Court incorporates by reference its discussion of Civil Code, § 1940.2 as to the Westmoreland demurrer.

Each Plaintiff reasonably apprehended physical harm, such as bug bites and allergic reactions or symptoms, when the Owner-Manager Defendants refused or failed to correct the substandard conditions at the Property, including rampant pest infestations.

The demurrer to the ninth cause of action is SUSTAINED without leave to amend. Plaintiffs have exhausted their amendment opportunities.

7. Tenth Cause of Action (Violation of Unfair Competition Law—Bus. & Prof. Code, § 17200 et seq.)

Defendants argue there are insufficient facts pled to show a violation of statute and injury in the form of rent received by the Kim Defendants.

Here, Plaintiff’s claim that the Owner-Manager Defendants illegally rented the dwellings and violated the enumerated statutes at ¶ 208, which caused Plaintiffs to pay rent that was more than the reasonable rental value. This is sufficient to plead a claim for restitutionary disgorgement.

8. Eleventh Cause of Action (Violation of Tenant Anti-Harassment Ordinance (Los Angeles Municipal Code, § 45.30, et seq.)

Defendants argue that this cause of action does not allege a violation of the LAMC § 45.33(8).

220. The anti-harassment provisions of LAMC section 45.33 prohibit a landlord from engaging in various acts of harassment that serve no lawful purpose and cause tenant(s) detriment and harm. These acts include, but are not limited to:

d. Threatening or engaging in acts that interfere with a tenant’s enjoyment and occupancy of the tenant’s rental unit (45.33.8).

224. The Kim Defendants violated LAMC section 45.33, subsection 8 by intentionally concealing that the units they purported to rent to each Plaintiff were illegal and unpermitted. Because the units were illegal and unpermitted, the City of Los Angeles ordered Plaintiffs to leave their homes, which interfered with each Plaintiffs enjoyment and occupancy of their rental unit.

This does not allege direct action of threat of engagement in acts by the Kim Defendants which interfered with Plaintiffs’ enjoyment and occupancy of the rental units.

The demurrer to the eleventh cause of action is SUSTAINED without leave to amend. Plaintiffs have exhausted their amendment opportunities.

Defendants argue that this cause of action is not pled with the requisite specificity for fraud. The Court incorporates by reference it discussion re: intentional misrepresentation as to the Westmoreland demurrer.

This cause of action is insufficiently pled as against the Kim Defendants and Plaintiffs have exhausted their opportunities to amend.

The demurrer to the fourteenth cause of action is SUSTAINED without leave to amend.

Defendants argue that this cause of action is not pled with the requisite specificity for fraud. The Court incorporates by reference it discussion re: negligent misrepresentation as to the Westmoreland demurrer.

This cause of action is insufficiently pled as against the Kim Defendants and Plaintiffs have exhausted their opportunities to amend.

The demurrer to the fifteenth cause of action is SUSTAINED without leave to amend.

Defendants Kap Pong Kim and Chung Suk Kim, individually, and as a trustee of the Kim Kap Pon and Chung Suk Kim Trust’s Motion To Strike

The Declaration of Steven Y. Han reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 435.5 .

Defendants Kap Pong Kim and Chung Suk Kim, individually, and as a trustee of the Kim Kap Pon and Chung Suk Kim Trust move to strike the following portions of the Second Amended Complaint:

1. References to punitive or exemplary in ¶¶ 120, 140, 150, 159, 170, 197, 205, 245, 256, and 268 of the SAC;

MOOT as to ¶¶ 140, 170, 197, 205, 245, 246 by virtue of the ruling on the demurrer.

GRANTED without leave to amend as to ¶ 120. In connection with the negligence cause of action, Plaintiffs have failed to plead facts to support malice, oppression or fraud as against the Kim Defendants, for purposes of Civil Code, § 3294(c).

(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

To withstand a motion to strike punitive damages allegations, the complaint must set forth facts supporting a claim for punitive damages:

The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. (Citation omitted.) Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.

(Grieves v. Superior Court (Fox) (1984) 157 Cal.App.3d 159, 166 [emphasis added].)

(See also Clauson v. Superior Court (Pedus Services, Inc.) (1998) 67 Cal.App.4^th 1253, 1255 [“[T]o survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.”])

GRANTED without leave to amend to ¶ 150. In connection with the nuisance cause of action, Plaintiffs have failed to allege malice, oppression or fraud.

GRANTED without leave to amend to ¶ 159. In connection with the premises liability cause of action, which is based on negligence, Plaintiffs have failed to allege malice, oppression or fraud.

DENIED as to ¶ 268. The cause of action for fraudulent concealment remains viable, and is based on concealment of the illegality of the boarding house, which constitutes fraud as that term is defined in Civil Code, § 3294(c)(3) to include “an intentional . . . concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

2. Prayers for relief for punitive or exemplary damages as to the First, Third, Fourth, Fifth, Sixth, Eighth, Ninth, Fourteenth, Fifteenth and Sixteenth Causes of Action;

MOOT as to the third, sixth, eighth, ninth, fourteenth and fifteenth causes of action based on the ruling on the demurrer.

GRANTED without leave to amend as to the first and fifth causes of action. These are negligence-based claims which do not support a claim for punitive damages.

DENIED as to the sixteenth cause of action. The cause of action for fraudulent concealment remains viable, and is based on concealment of the illegality of the boarding house, which constitutes fraud as that term is defined in Civil Code, § 3294(c)(3) to include “an intentional . . . concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

DENIED. Civil Code § 3345 pertains to acts against senior citizens, disabled persons or veterans. Defendants did not present an argument as to why this sho9uld be stricken.

[1] “[W]e do not read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint “as a whole and its parts in their context.” (Citation omitted.)” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.)

[2] The Court previously found that the Westmoreland Defendants’ alleged direction of a crew to engage in self-help eviction on April 12, 2023 was sufficient to support the IIED cause of action against Westmoreland, but this would not apply to these demurring Kim Defendants. (See 2AC, ¶ 168.)