Judge Gail Killefer, Case Number: 23STCV28174, Date: 2024-06-12 Tentative Ruling

RECOMMENDATION: Defendant Alpha’s demurrer is sustained with leave to amend. Defendant Alpha’s motion to strike is granted with leave to amend. Plaintiff is granted 30 days leave to amend. The court sets a Non-Appearance OSC RE: Amended Complaint for July 23, 2024, at 8:30 a.m. Defendant to give notice.

On November 15, 2023, Kyung Tai Lee (“Plaintiff”) filed a Complaint against Defendants BCG Lodi Homes; Joel Mensch; Aaron Mensch; Barrington Capital Group, LLC; and Alpha Build & Design; and Does 1 to 100.

The Complaint alleges six causes of action: (1) Trespass, (2) Nuisance, (3) Encroachment, (4) Intentional Infliction of Emotional Distress, (5) Assault, and (6) Elder Abuse.

Defendant Alpha Build & Design, Inc. (“Alpha”) now demurs to the Complaint. Plaintiff opposes the Motion. The matter is now before the court.

discussion

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. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

¿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); CRC, 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”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

Plaintiff owns the property located at 1240 Lodi Pl., Los Angeles, CA (“Property 1”). (Compl., ¶ 8.) Defendants Barrington Capital Group, LLC or BCG Lodi Homes own the neighboring property, 1249 Lodi Pl., Los Angeles, CA (“Property 2). (Compl., ¶ 9.) Defendant Alpha is alleged to have been the contractor to develop Property 2. (Compl., ¶ 9.)

Property 2 is in the process of redevelopment and reconstruction, which has resulted in damage to Property 1. (Compl., ¶ 9.) This includes damage caused by moving walls on Property 1, building walls on Property 1 that cross the property line, and damaging improvements on Property 1. (Compl., ¶ 10.) Plaintiff asserts that on at least one occasion, 3 to 4 construction workers of Defendants, have threatened to harm Plaintiff who is over 70 years old. (Compl., ¶ 32.)

Defendant Alpha now demurs to the entire Complaint based on uncertainty and the failure to comply with CCP § 425.10. A complaint must contain a “statement of the facts constituting the cause of action, in ordinary and concise language.” (CCP § 425.10.) Defendant Alpha also specifically demurs to the fourth, sixth and seventh cause of action.

The Complaint will be upheld “‘so long as [it] gives notice of the issues sufficient to enable preparation of a defense.’” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549–550.) Although the Complaint does not contain a statement of facts, the Complaint as a whole contains facts asserting the nature of the dispute and lays out the causes of action alleged against all Defendants. Accordingly, the court finds that the demurrer is not so uncertain that Defendant Alpha is unable to respond. The demurrer on this basis is overruled.

“A cause of action for intentional infliction of emotional distress requires: (1) extreme and outrageous conduct by appellants with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the appellants’ outrageous conduct. [Citation.] Conduct is considered outrageous when it is ‘so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1164.) Whether Defendant’s conduct was outrageous, oppressive, or malicious is a question of fact for the jury. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.)

Defendant Alpha demurs to the fourth cause of action on the basis that Plaintiff fails to allege facts to show that Alpha’s conduct was intentional and extreme and outrageous. The Complaint alleges in a conclusory manner that “Defendants’ conduct in willfully damaging Plaintiff's property and business and right to peaceful and quiet enjoyment of their property (Property 1) is outrageous and goes beyond reasonable decency.” (Compl., ¶ 26.) Moreover, emotional distress damages are generally not authorized in cases other than that of physical injury. (See Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 800; Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012 [“No California case has allowed recovery for emotional distress arising solely out of property damage, absent a threshold showing of some preexisting relationship or intentional tort”]; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1378 [Holding that “serious emotional distress” required for negligent infliction of emotional distress is functionally the same as “severe emotional distress” required for intentional infliction of emotional distress.”].)

Plaintiff’s opposition states that the Complaint alleges extreme and outrageous conduct in that construction workers threatened Plaintiff with a hammer. (Compl., ¶ 32.) Paragraph 32 is not, however, incorporated into the fourth cause of action. Moreover, the facts cited in the fourth cause of action do not indicate that extreme and outrageous conduct stems from Plaintiff being threatened by a hammer by construction workers.

Accordingly, the demurrer to the fourth cause of action is sustained with leave to amend.

“‘The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm.’” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

Defendant Alpha demurs to the sixth cause of action on the ground that a single allegation -- that on one occasion Plaintiff was threatened with a hammer by three to four construction workers -- is insufficient to satisfy all the elements of a claim for assault. (Compl., ¶ 32.) There are no allegations that the construction workers acted intentionally, that the construction workers acted on orders of Defendants, and that Plaintiff reasonably apprehended the harm and was harmed. Lastly, the Plaintiff’s opposition makes additional allegations, not stated in the Complaint. “[F]acts not alleged are presumed not to exist.” (Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1327.)

Accordingly, the demurrer to the sixth cause of action is sustained with leave to amend.

Elder financial abuse under California Welfare and Institution Code §§ 15710.07 and 15610.30 must be pled separately.

(a) Physical abuse, neglect,¿financial abuse, abandonment, isolation, abduction,¿or other treatment with resulting physical harm or pain or mental suffering.

(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

Under section 15610.07, “for the conduct to qualify as elder abuse, it must cause elder to suffer physical harm, pain or suffering.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 409.) “A separate provision, Section 15610.30(a), contains a different definition of ‘financial abuse’ that does not require physical harm, pain, or mental suffering.” (Davis v. RiverSource Life Insurance Company (N.D. Cal. 2017) 240 F.Supp.3d 1011, 1019.)

Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the following:

(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence [.]

Defendant Alpha demurs to the seventh cause of action on the basis that it is improperly pled and is uncertain. The court agrees. Plaintiff’s sole two allegations are that “All allegations above are repeated herein” and “[a]t the time of the above referenced conduct, Plaintiff was elderly and therefore the actions constitute elder abuse.” (Compl., ¶¶ 33, 34.) The court finds that Plaintiff’s seventh cause of action is entirely conclusory as it is devoid of facts and is uncertain because Plaintiff fails to state under what specific Welf. & Inst. Code he is alleging elder abuse.

Therefore, the demurrer to the seventh cause of action is sustained with leave to amend.

To state a claim for punitive damages under Civ. Code § 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression, or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.)¿ The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Ibid.)¿¿“Malice” is defined in Civ. Code § 3294 (c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294(c)(2).) The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891.) 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.” (Civ. Code, § 3294(c)(3).)

The court agrees that Plaintiff’s request for punitive damages is not pled with the requisite specificity as Plaintiff fails to state facts as to what conduct amounted to fraud, malice, or oppression. Nor does Plaintiff make allegations on information and belief that would support the finding that punitive damages are warranted. When the defendant is a¿corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the¿corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code, § 3294(b).) Here, Plaintiff fails to allege that a managing agent of Defendant Alpha perpetrated or ratified the conduct giving rise to Plaintiff’s claim for punitive damages.

Defendant Alpha’s demurrer is sustained with leave to amend. Defendant Alpha’s motion to strike is granted with leave to amend. Plaintiff is granted 30 days leave to amend. The court sets a Non-Appearance OSC RE: Amended Complaint for July 23, 2024, at 8:30 a.m. Defendant to give notice.

[1] Pursuant to CCP §§ 430.41 and 435.5(a), the meet and confer requirement has been met. (Pennington Decl. ¶¶ 4-8, Exs. A, B.)