Judge: H. Jay Ford, III, Case: 22VECV00766, Date: 2023-09-28 Tentative Ruling

Case Number: 22VECV00766    Hearing Date: March 5, 2024    Dept: O

Case Name:  Yang v. Abudalu, et al.   

SUBJECT:                 DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendants Rand Shalabi, Elvis A. Ortiz-Wayland, and Housekey Real Estate Corp

RESP. PARTY:         Plaintiff Henry Shin Yang

TENTATIVE RULING

Defendants Rand Shalabi, Elvis A. Ortiz-Wayland, and Housekey Real Estate Corp’s Demurrer to the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, and 9th causes of action of the Third Amended Complaint are SUSTAINED without leave to amend. Defendants Motion to Strike punitive damages from the Third Amended Complaint is GRANTED. Plaintiff’s causes of action fail for uncertainty pursuant to CCP 430.10(f). Plaintiff failed to cure the inconsistencies in the third amended complaint’s factual allegations, and thus the Demurrer is sustained without leave to amend pursuant to CCP § 430.41(e)(1).

Defendants Rand Shalabi, Elvis A. Ortiz-Wayland, and Housekey Real Estate Corp. (“Broker Defendants”) demur to the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, and 9th causes of action of the third amended complaint (“TAC”) on the grounds that Plaintiff Henry Shin Yang’s (“Yang”) SAC fails to state a cause of action against the Broker Defendants or are uncertain pursuant to CCP 430.10(e) and (f). The Broker Defendants argue that Yang’s own admissions are fatal to the each cause of action. Specifically, in paragraph 22 Yang alleges:

“Although defendant Raad Shalabi held himself out as plaintiff’s agent, plaintiff has never met with either Elvis A. Ortiz Wayland or Raad Shalabi regarding the transaction, nor has plaintiff entered any agency agreement with either Elvis A. Ortiz Wayland or Raad Shalabi as required by law. As such, plaintiff never consented to dual agency representation during the leasing transaction between Plaintiff and defendants Abudalu.”

All of Yang’s causes of action against the Broker Defendants either expressly or implicitly appear to rely on the existence of a duty owed by the Broker Defendant’s that arises from the contractual agency relationship between Yang and the Broker Defendants.  Yang ’s denial of the existence of any such agency agreement is inconsistent with any allegation of the existence of a duty owed to Yang.

Yang was granted leave to amend to file the SAC on 9-28-23. Yang has failed to cure the inconsistent factual allegations regarding the existence, or lack thereof, of an agency relationship between Yang and the Broker Defendants in the TAC. Thus, the Court finds the allegations in the TAC continue to be inconsistent and fail on the grounds of uncertainty.

CCP § 430.41(e)(1) states:

In response to a demurrer and prior to the case being at issue, a complaint or   cross-complaint shall not be amended more than three times, absent an offer to  the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.

(Code Civ. Proc., § 430.41, subd., (e)(1), emphasis added.)

Yang has amended his complaint three times as to the allegations against the Broker Defendants in the 2^nd through 9^th causes of action, but has failed to cure to fatally inconsistent factual allegations. Thus, the Broker Defendants demurrer as to the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, and 9^th causes of action is SUSTAINED without leave to amend. The motion to strike punitive damages as to the Broker Defendants is GRANTED.