Judge: Gary Y. Tanaka, Case: 20TRCV00271, Date: 2022-12-20 Tentative Ruling
Case Number: 20TRCV00271 Hearing Date: December 20, 2022 Dept: B
LOS ANGELES SUPERIOR COURT –
SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Tuesday,
December 20, 2022
Department B Calendar
No. 8
PROCEEDINGS
Eunmin
Kim v. Andrew Lwin, et al.
20TRCV00271
1. Andrew Lwin’s Demurrer to Complaint
2. Andrew Lwin’s Motion to Strike Portions of Complaint
TENTATIVE RULING
Andrew Lwin’s Demurrer to Complaint
is overruled.
Andrew Lwin’s Motion to Strike Portions of Complaint is
denied.
Background
Plaintiff filed the Complaint on March 25, 2020. Plaintiff
alleges the following facts. Plaintiff was a tenant and rented a room from
Defendant. Defendant sexually harassed Plaintiff on numerous occasions.
Defendant then evicted Plaintiff when she refused Defendant’s advances and assaulted
and battered her when she warned other potential tenants. Plaintiff alleges causes of action for: 1. Retaliatory
Eviction; 2. Breach of the Implied Covenant of Quiet Enjoyment; 3. Constructive
Eviction; 4. Battery; 5. Assault; 6. IIED; 7. NIED; 8. Violation of Gov. Code
12955(a); 9. Violation of Gov. Code 12955(f); 10. Violation of Civ. Code 51.9;
11. Violation of California Code of Regulations 12120.
Meet and Confer
Defendant set forth a
meet and confer declaration in sufficient compliance with CCP § 430.41 and CCP
§ 435.5. (Decl., Andrew Lwin.)
Demurrer
A demurrer tests the sufficiency of a complaint as a
matter of law and raises only questions of law. (Schmidt v. Foundation Health
(1995) 35 Cal.App.4th 1702, 1706.) In
testing the sufficiency of the complaint, the court must assume the truth of
(1) the properly pleaded factual allegations; (2) facts that can be reasonably
inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)
The Court may not consider contentions, deductions, or conclusions of
fact or law. (Moore v. Conliffe
(1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency
of a complaint, the plaintiff must show that the complaint alleges facts
sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians
Service (2000) 81 Cal.App.4th 39, 43.)
Where the complaint fails to state facts sufficient to constitute a
cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of
Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)
Sufficient facts are the essential facts of the case
"with reasonable precision and with particularity sufficiently specific to
acquaint the defendant with the nature, source, and extent of his cause of
action.” (Gressley v. Williams
(1961) 193 Cal.App.2d 636, 643-644.)
"Whether the plaintiff will be able to prove the pleaded facts is
irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180
Cal.App.3d 605, 609–610.) Under Code
Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is
“uncertain.” Uncertainty exists where a
complaint’s factual allegations are so confusing they do not sufficiently
apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp.
(1986) 185 Cal.App.3d 135, 139, fn. 2.)
Defendant demurs to the Complaint and each cause of
action on the ground that the causes of action fail to state facts sufficient
to constitute a cause of action and that the causes of action are uncertain.
Defendant also argues that Plaintiff lacks standing and that it cannot be
determined whether the contract is oral, written, or implied by conduct.
First Cause of Action for Retaliatory Eviction
Defendant’s demurrer to the first cause of action is
overruled. Plaintiff states facts sufficient to state a cause of action.
Civ. Code, § 1942.5 states, in relevant part:
“(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.”
Plaintiff has alleged facts stating that she made oral
complaints to the lessor regarding tenantability. The alleged tenantability
issues consisted of Plaintiff’s numerous complaints that the landlord was
sexually harassing Plaintiff which allegedly affected her ability to enjoy the
quiet possession of the property. (Complaint, ¶¶ 11-18.) These complaints were
allegedly made within 180 days of Plaintiff’s alleged constructive eviction. (Id.) Thus,
sufficient facts were set forth to state this cause of action.
Therefore, the demurrer to the first cause of action is
overruled.
Second Cause of Action for Breach of the Implied
Covenant of Quiet Enjoyment
Defendant’s demurrer to the second cause of action is
overruled. Plaintiff states facts sufficient to state a cause of action.
“It has long been the rule that in the absence of
language to the contrary, every lease contains an implied covenant of quiet
enjoyment. [Citations.] Initially, the covenant related solely to the right of
possession and only protected the lessee against any act of molestation
committed by the landlord or anyone claiming under him, or by someone with
paramount title, which directly affected the tenant's use and possession of the
leased premises; the covenant was construed to protect the lessee against
physical interference only. [Citation.] In recent years, the covenant of quiet
enjoyment has been expanded, and in this state, for example, it 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.” Nativi v. Deutsche
Bank National Trust Co. (2014) 223 Cal.App.4th 261, 291–92.
Plaintiff alleges facts demonstrating that Defendant’s
numerous acts of sexual harassment interfered with Plaintiff’s quiet use and
enjoyment of the premises. (Complaint, ¶¶
11-18.) Therefore, the demurrer to the
second cause of action is overruled.
Third Cause of Action for Constructive Eviction
Defendant’s demurrer to the third cause of action is
overruled. Plaintiff states facts
sufficient to state a cause of action.
“[A]ny disturbance of the tenant's possession by the
lessor or at his procurement ... which has the effect of depriving the tenant
of the beneficial enjoyment of the premises, amounts to
a constructive eviction, provided the tenant vacates the premises
within a reasonable time. ... Any interference by the landlord by which the
tenant is deprived of the beneficial enjoyment of the premises amounts to
a constructive eviction if the tenant so elects and surrenders
possession, and the tenant will not be liable for rentals for the portion of
the term following his eviction. Nativi v. Deutsche Bank National Trust
Co. (2014) 223 Cal.App.4th 261, 292. “California recognizes the tort
of wrongful eviction. The same basic policy against forcible or other
wrongful ouster that gives the tenant the summary remedy to obtain restoration
of possession [citation] gives the tenant a tort action for damages for
wrongful eviction. An essential element of a
wrongful eviction claim is that the tenant has vacated the premises.”
Id. at 293 (internal citations and quotations omitted).
Plaintiff has alleged facts to demonstrate that
Defendant’s alleged numerous acts of sexual harassment caused Plaintiff to
vacate the premises and the act of vacating was within a reasonable time after
the sexual harassment. (Complaint, ¶¶ 11-18). Plaintiff has alleged that her
vacating the premises constituted a constructive eviction. Therefore,
Defendant’s demurrer to the third cause of action is overruled.
Fourth Cause of Action for Battery
Fifth Cause of Action for Assault
Defendant’s demurrer to the fourth and fifth causes of
action is overruled. Plaintiff states facts sufficient to state the fourth and
fifth causes of action.
“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. The elements of a
cause of action for battery are: (1) the defendant touched the plaintiff, or
caused the plaintiff to be touched, with the intent to harm or offend the
plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff
was harmed or offended by the defendant's conduct; and (4) a reasonable person
in the plaintiff's position would have been offended by the touching.” Carlsen
v. Koivumaki (2014) 227 Cal.App.4th 879, 890 (internal citation omitted).
Plaintiff has alleged sufficient facts to meet each of
the elements of battery and assault. Specifically, Plaintiff alleges that she
was battered by Defendant on January 8, 2020, when Defendant grabbed Plaintiff.
The same facts are also alleged to support the elements of assault in that
Plaintiff alleges that she had a reasonable apprehension of an imminent
touching prior to the alleged battery. (Complaint, ¶¶ 26-28). Defendant argues
that he lacked the element of intent. However, this argument relies on facts
and evidence outside the scope of the pleadings.
Thus, the demurrer to the fourth and fifth causes of
action is overruled.
Sixth Cause of Action for IIED
Defendant’s demurrer is overruled. Plaintiff states facts
sufficient to state a cause of action.
“The elements of a prima facie case for 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.” Miller
v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228–29.
The previously noted facts of Defendant’s numerous acts
of sexual harassment, as well as Defendant’s alleged acts of assault and
battery, sufficiently demonstrate extreme and outrageous conduct to state a
cause of action for IIED. In addition, Plaintiff has adequately alleged the
remaining essential elements of the cause of action. (Complaint, ¶¶ 11-18, 26-28, 73-78.)
Thus, the demurrer to the sixth cause of action is overruled.
Seventh Cause of Action for NIED
Defendant’s demurrer is overruled. Plaintiff states facts
sufficient to state a cause of action.
Negligent Infliction of Emotional Distress is not an
independent cause of action. Instead,
emotional distress is a component of damages that may be recoverable in a
Negligence cause of action. See Marlene F. v. Affiliated Psychiatric
Med. Clinic, Inc. (1989) 48 Cal.3d 583, 588. Thus, the Court will treat
this cause of action as a cause of action for Negligence. “The elements of any negligence cause of action are
duty, breach of duty, proximate cause, and damages.” Peredia v. HR Mobile
Services, Inc. (2018) 25 Cal.App.5th 680, 687.
Plaintiff has alleged sufficient facts to state that
Defendant owed a duty to Plaintiff, breached the duty, and that the breach was
the proximate cause of Plaintiff’s injuries. Essentially, Plaintiff has
reiterated the same factual allegations, but has alleged, in the alternative,
that Defendant acted negligently when committing the numerous acts noted above,
rather than with the specific intent. (Complaint, ¶¶ 79-81).
Thus, the demurrer to the seventh cause of action is
overruled.
Eighth Cause of Action for Violation of Gov. Code
12955(a)
Ninth Cause of Action for Violation of Gov. Code
12955(f)
Defendant’s demurrer to the eighth and ninth causes of
action is overruled. Plaintiff states facts sufficient to state the eighth and
ninth causes of action.
Gov. Code, § 12955 states, in relevant part:
“It shall be unlawful:
(a) For the owner of any housing accommodation to
discriminate against or harass any person because of the race, color, religion,
sex, gender, gender identity, gender expression, sexual orientation, marital
status, national origin, ancestry, familial status, source of income,
disability, veteran or military status, or genetic information of that person.
(f) For any owner of housing accommodations to harass,
evict, or otherwise discriminate against any person in the sale or rental of
housing accommodations when the owner's dominant purpose is retaliation against
a person who has opposed practices unlawful under this section, informed law
enforcement agencies of practices believed unlawful under this section, has
testified or assisted in any proceeding under this part, or has aided or
encouraged a person to exercise or enjoy the rights secured by this part.
Nothing herein is intended to cause or permit the delay of an unlawful detainer
action.”
Plaintiff has stated sufficient facts alleging that she
was discriminated against, harassed, and evicted based on her sex, and that she
was retaliated against for opposing such practices. (Complaint, ¶¶ 82-94.) Again, the core allegations have already been
outlined in detail above. Defendant’s
demurrer to the eighth and ninth causes of action is overruled.
Tenth Cause of Action for Violation of Civ. Code
51.9
Defendant’s demurrer to the tenth cause of action is
overruled. Plaintiff states sufficient facts to state a cause of action.
Civ. Code, § 51.9 states, in relevant part:
“(a) A person is liable in a cause of action for sexual
harassment under this section when the plaintiff proves all of the following
elements:
(1) There is a business, service, or professional
relationship between the plaintiff and defendant or the defendant holds himself
or herself out as being able to help the plaintiff establish a business,
service, or professional relationship with the defendant or a third party. Such
a relationship may exist between a plaintiff and a person, including, but not
limited to, any of the following persons:
(D) Landlord or property manager.
(2) The defendant has made sexual advances,
solicitations, sexual requests, demands for sexual compliance by the plaintiff,
or engaged in other verbal, visual, or physical conduct of a sexual nature or
of a hostile nature based on gender, that were unwelcome and pervasive or
severe.
(3) The plaintiff has suffered or will suffer economic
loss or disadvantage or personal injury, including, but not limited to,
emotional distress or the violation of a statutory or constitutional right, as
a result of the conduct described in paragraph (2).
(b) In an action pursuant to this section, damages shall
be awarded as provided by subdivision (b) of Section 52.”
Plaintiff has stated sufficient facts to allege that she
was sexually harassed by her landlord and that she suffered resulting damages. (Complaint, ¶¶ 95-102.) Again, the core allegations have already been
outlined in detail above. Defendant’s
demurrer to the tenth cause of action is overruled.
Eleventh Cause of Action for Violation of Cal. Code
of Regulations 12120
Defendant’s demurrer to the eleventh cause of action is
overruled. Plaintiff states facts sufficient to state a cause of action.
Cal. Code Regs., tit. 2, § 12120 states in relevant part:
“(a) General. The Act prohibits harassment because of
membership in a protected class as a discriminatory housing practice.
(c) Type of Conduct. Quid pro quo and hostile environment
harassment in housing can be written, verbal, or other conduct and do not
require physical contact.
(e) Persons Protected. The prohibition on harassment
extends to conduct that is based on an individual's membership in a protected
class, being perceived as a member of a protected class, or on account of
having aided or encouraged any person in the exercise of the rights protected
by the Act.”
Plaintiff has stated sufficient facts to allege that she
was sexually harassed by her landlord and that she suffered resulting damages. (Complaint, ¶¶ 103-110.) Again, the core allegations have already been
outlined in detail above. Defendant’s demurrer to the eleventh cause of action is
overruled.
Defendant’s demurrer based on lack of standing is
overruled. Defendant argues that
“Plaintiff’s identity is unknown.” (Demurrer,
page 8, line 7.) With the Reply,
Defendant clarifies this argument and argues that Plaintiff is a foreign
national and not a citizen of the United States. However, Defendant presents no authority to
establish that Plaintiff, whether a non-citizen or not, lacks standing to
maintain this lawsuit. Also, this
argument is made on facts outside the scope of the pleadings.
Defendant argues that it cannot be ascertained whether
the contract is oral, written, or implied by conduct. However, Defendant’s
demurrer on this ground is overruled. Plaintiff has not alleged a breach of contract
cause of action.
Finally, Defendant’s demurrer for uncertainty is
overruled. The Complaint is sufficiently certain for Defendant to adequately
respond. “Demurrers for uncertainty under Code of Civil
Procedure section 430.10, subdivision (e) are disfavored. A demurrer for uncertainty is
strictly construed, even where a complaint is in some respects uncertain,
because ambiguities can be clarified under modern discovery procedures. A demurrer for uncertainty should
be overruled when the facts as to which the complaint is uncertain are
presumptively within the defendant's knowledge.” Chen v. Berenjian (2019)
33 Cal.App.5th 811, 822 (internal citations and quotations omitted).
Motion to Strike
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.
Defendant moves to strike “expectancy damages” and
references to the entirety of the prayer for damages set forth on pages 15 and
16. Defendant makes no specific argument
or authority to support the motion to strike with respect to any of the components
of damages prayed for by Plaintiff. Instead,
the arguments mirror the arguments made in the demurrer. For the reasons noted above, in the Court’s
ruling to the demurrer, the prayer for damages is properly set forth under the
adequately stated first through eleventh causes of action.
Defendant’s motion to strike is denied.
Defendant is ordered to file and serve an Answer within
10 days of this date.
In addition, Defendant is ordered to pay a filing fee
forthwith. Defendant noticed a demurrer
and motion to strike – two separate motions – yet, only paid one filing fee.
Plaintiff is ordered to give notice of this ruling.