Judge: H. Jay Ford, III, Case: 22SMUD00410, Date: 2023-04-11 Tentative Ruling

Case Number: 22SMUD00410    Hearing Date: April 11, 2023    Dept: O

Case Name:  Abudalu v. Yang

SUBJECT:                DEMURRER TO FAC  

MOVING PARTY:   Plaintiff Joseph Abudalu and Billy Abudalu

RESP. PARTY:         Defendant Henry Shin Yang

TENTATIVE RULING

            Defendants’ unopposed Demurrer to the entire FAC based on uncertainty is SUSTAINED WITH 10 DAYS LEAVE TO AMEND as to the 1^st through 8^th and 10^th causes of action.  “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.”  Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.  Plaintiffs make numerous key allegations against “Billy Dalu” and “Dalu” but no such persons are named as defendants in the complaint.

            Defendants’ Demurrer to the 9^th cause of action for “breach of duty to honest and truthful against all defendants” is SUSTAINED WITHOUT LEAVE TO AMEND.  Plaintiff’s 9^th cause of action fails to state any identifiable cause of action, except possibly fraud.  Plaintiff’s 4^th cause of action is for intentional misrepresentation and the 9^th cause of action would be duplicative if interpreted as a fraud claim. 

            Defendants’ Demurrer to the 11^th cause of action for Intentional Infliction of Emotional Distress (IIED) is SUSTAINED WITHOUT LEAVE TO AMEND.  Plaintiff’s IIED claim is based on Defendants’ alleged false promises regarding the “lease-to-own” agreement.  Such conduct without more does not rise to the level of extreme and outrageous conduct that “exceed[s] all bounds of decency usually tolerated by a decent society,” nor is it of a “nature which is especially calculated and does cause, mental distress.  See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.  Nor does such conduct approach the type of conduct ordinarily deemed “extreme and outrageous conduct.”  See So v. Shin (2013) 212 Cal.App.4th 652, 671 (patient adequately alleged that anesthesiologist engaged in extreme and outrageous conduct; after patient complained of waking up during surgery, anesthesiologist brought container of blood and tissue that had been removed during surgery into recovery room and showed it to her); Plotnik v. Meihaus (2012) 208 C.A.4th 1590, 1613 (conduct of neighbor's adult sons (rushing toward and confronting homeowner while he was standing on his side of property line, making rude comments, expressly threatening both homeowner and his dog, and making veiled threat against his wife) was sufficiently outrageous to support causes of action for intentional infliction of emotional distress); Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903 (failure to repair rental premises that resulted in leaking sewage, defective wiring, cockroach infestation and fire hazards); Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 296 (outrageous conduct alleged where landlord allegedly threatened African-American tenant with lynching after she organized opposition to rent increases).