Judge Deirdre Hill, Case 22TRCV00417 2022-10-17 Tentative Ruling

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The demurrer is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the 1^st, 3^rd, and 4^th causes of action, and SUSTAINED WITHOUT LEAVE TO AMEND as to the 2^nd and 5^th causes of action. The motion to strike is MOOT.

On June 2, 2022, Mary Maguire filed a complaint against Sung Soo Park, Kyung Mee Jyung, Eun Bin Park, Eun Jae Park, Awesome Medical Company, and HepaHope for (1) fraud and deceit, (2) conversion, (3) elder abuse under Welfare & Institutions Code § 15610 et seq., (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, and (6) breach of contract.

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “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.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.

CCP § 431.10 states, “(b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (c) An “immaterial allegation” means “irrelevant matter” as that term is used in Section 436.”

Defendant Eun Jae Park demurs to the 1^st through 5^th causes of action in the complaint.

The complaint alleges that defendants use a series of defunct business entities to make it appear as through they are wealthy individuals who own and operate several successful companies. Defendants proclaim that they are the owners of valuable patents in the medical field. Sung Soo Park claims to be a medical doctor. Defendants made these and other false representations to plaintiff to trick plaintiff into leasing the subject property in 2019. Complaint, ¶11. After defendants scammed and influenced plaintiff into relinquishing control of the property, defendants continued to make false promises and representations to plaintiff. Defendants conspired to use coercion, misrepresentations, and undue influence against plaintiff in an effort to continue to not pay the rent that was due. They also made false promises and representations regarding their ability to pay future rent, their ability to move out, and their future plans with regard to the property. Id., ¶13. They refused to provide information regarding the property and refused to allow plaintiff entry despite plaintiff’s proper and lawful notices. They refused to cooperate with plaintiff and allow plaintiff or her representatives onto the property (1) for required insurance verification procedures, (2) to allow plaintiff to access and fix a heater that defendants complained about and that at the time was under warranty, and (3) plaintiff’s attempts to market the property for sale. Defendant Kyung Mee Yung impersonated plaintiff to forestall lawful service of process on her. Id., ¶14.

The demurring defendant Eun Jae Park (“EJ Park”) is the son of defendant Dr. Sung Soo Park (“Dr. Park”) who is the former tenant of the premises. EJ Park contends that he never occupied the premises, never met plaintiff, and never signed a lease agreement. The lease agreement attached as Exhibit A to the complaint is between Dr. Park and plaintiff.

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” Charnay v. Cobert (2006) 145 Cal. App. 4th 170, 184. Fraud, including negligent misrepresentation, must be pled with specificity. Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184. “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” Cansino v. Bank of America (2014) 224 Cal. App. 4th 1462, 1469.

Plaintiff alleges that “Defendants represented that they were owners and operators of Defendant Awesome Medical Company, LLC, from which they made a salary of $750,000 per year. They also claimed that they were the owners and operators of HepaHope, Inc. from which they made a salary of $350,000 per year. These claims were false and Defendants knew them to be false and intended that Plaintiff would rely on such statements in agreeing to lease the Subject Property to them.” Complaint, ¶12. In May 2019, defendants knowingly made false, fraudulent, and misleading misrepresentations to plaintiff regarding the true nature of their employment, their wealth, their business history, and their prior rental history in an attempt to gain possession and control of the property. Defendant Sung Soo Park misrepresented that he was a medical doctor. Defendants represented to plaintiff that they were wealthy individuals who made a lot of money from the companies that they owned and controlled, that they had good history as tenants, and that they would pay all rent when due and vacate the Subject Property upon the expiration of their lease.” Id., ¶17.

Defendant contends that plaintiff groups all six defendants together without explaining why EJ Park is liable, i.e., how EJ Park’s purported wealth has any bearing on a tenancy to which he was not a party. Defendant also argues that the allegations lack specificity.

The court finds that the allegations are insufficient as to moving party as plaintiff’s allegations combine all six defendants. Plaintiff does not allege as to whom made the representations and why what means (oral, written). Further, the allegations are insufficient to support justifiable reliance as to moving party as he does not appear to have leased the premises. The lease agreement is between Dr. Park and plaintiff.

“The tort of conversion applies to personal property, not real property.” Salma v. Capon (2008) 161 Cal. App. 4th 1275, 1295.

The complaint alleges that defendants intentionally and unlawfully took and withheld real property legally belonging to plaintiff despite knowing that plaintiff was entitled to immediate possession of such property. Complaint, ¶24.

The court finds that the allegations are insufficient as a claim for conversion applies to personal property and not real property.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 2^nd cause of action.

3^rd cause of action for violation of Welfare and Institutions Code §§ 15610, et seq.

Financial elder abuse occurs when a person takes the property of an elder for a wrongful use or with intent to defraud or by undue influence. See Welf. & Inst. Code § 15610.30(a). A person is deemed to have taken the property when he or she has deprived an elder of any property right. See id. § 15610.30(c). Although bad faith or intent to defraud is no longer required, wrongful use of property must still be alleged. Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal. App. 4th 522, 527-28. “A person . . . shall be deemed to have taken . . . property for a wrongful use if . . . the person . . . takes . . . the property and the person . . . knew or should have known that this conduct is likely to be harmful to the elder . . . .” Id. § 15610.30(b).

Defendant argues that the allegations fail to support a claim for financial elder abuse and that defendant does not allege a specific statute that was violated. Defendant also argues that the allegations lack the requisite specificity.

The court finds that the allegations are conclusory and insufficient to show a wrongful taking of the subject property by fraud or undue influence by EJ Park. Further, as discussed above, there are insufficient allegations of fraud.

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. See Moncada v. West Coast Quartz Corp. (2013) 221 Cal. App. 4th 768, 780; Wilson v. Hynek (2012) 207 Cal. App. 4th 999, 1009. To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” Moncada, supra, at 780 (citation omitted).

“Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” McDaniel v. Gile (1991) 230 Cal. App. 3d 363, 372.

“[I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496. “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. Id. at 494. However, when reasonable persons may differ, it is for the jury, subject to the control of the Court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.¿ Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.

Defendant argues that the allegations are conclusory as to EJ Park and do not establish outrageous conduct by EJ Park.

The court finds that the allegations are insufficient as to EJ Park and do not show outrageous conduct.

California courts have repeatedly recognized that NIED is not an independent tort, but the tort of negligence such that the traditional elements of duty, breach of duty, causation, and damages apply. See, e.g., Spates v. Dameron Hospital Association (2003) 114 Cal. App. 4th 208, 213; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588. Thus to plead NIED, negligence must be established. There are two classifications for NIED claims: (1) bystander and (2) direct victim. See Spates, supra, at 213. A plaintiff may make a bystander NIED claim if he or she is present at the scene of the injury-producing event at the time it occurs, witnesses the physical injury of someone closely related to him or her, and suffers emotional distress beyond that which would be anticipated in a disinterested witness. See id.; Thing v. La Chusa (1989) 48 Cal.3d 644, 666. To make a direct victim claim, the emotional distress suffered by the plaintiff must be a foreseeable consequence of the conduct directed at the plaintiff. See Molien v. Kaiser Foundation Hospital (1980) 27 Cal.3d 916, 930.

“[T]here is no duty to avoid causing emotional distress to another, and that damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff.” Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984. “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” Id. at 985. “Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” Id.

Defendant argues that plaintiff has failed to state a claim for negligence in that there is no duty alleged.

The court finds that the allegations are insufficient. As stated above, NIED is not a separate cause of action and plaintiff fails to allege a cause of action for negligence.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 5^th cause of action.

Defendant requests that the court strike allegations as to punitive damages. Defendant also requests that the court strike plaintiff’s prayer for treble damages and attorney’s fees under the elder abuse cause of action.