Judge: Jon R. Takasugi, Case: 22STCV02391, Date: 2022-07-25 Tentative Ruling

Case Number: 22STCV02391    Hearing Date: July 25, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Yoo’s demurrer to the Cross-Complaint is SUSTAINED IN PART, OVERRULED IN PART:

-         Yoo’s demurer is sustained, without leave to amend as to the first cause of action

-         Yoo’s demurrer is sustained, with 15 days leave to amend as to the second and fourth causes of action

-         Yoo’s demurrer is overruled as to the third cause of action

On 1/20/2022, Plaintiff Celine Shin (Plaintiff) filed suit against Sang Yeo and Vetoben alleging: (1) breach of contract; (2) fraud; and (3) conversion.

            On 2/17/2022, Cross-Complainant Sang Yeo (Cross-Complainant) filed suit against Celine Shin, alleging: (1) defamation; (2) assault and battery; (3) negligence; and (4) intentional infliction of emotional distress.

            On 4/20/2022, Yeo filed an amendment to substitute in Jeffrey Yoo aka Jeff Yoo as Roe-1.

            Now, Jeffery Yoo (Yoo) demurs to Yeo’s Cross-Complaint.

Discussion

I.                   Defamation

Yoo argues that Yeo has not alleged facts which could show that he made actionable defamatory statements against Yeo.

The Court agrees. This cause of action is based on two alleged statements.

The first is that Yoo yelled at Yeo saying “you bully, son of bitch destroying fucking business…” (Complaint ¶ 13.)  The dispositive question of whether a statement can be treated as defamatory (and therefore libelous), “… is whether a reasonable trier of fact would conclude that the published statements imply a provably false factual assertion.” (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809.) Here, on its face, there is nothing in the alleged statement that could be verified. Whether or not Yeo is a bully is a matter of opinion and it is unclear what is even meant by “son of bitch destroying fucking business….”

The second alleged statement was made via text and allegedly said “I am repeatedly praying your collapse, because you're such thief, bully liar..., your kids is such lessoned like you, son of bitch...That's why your wife produced and delivered continuously such defective and deformed one inevitably." (Complaint ¶ 17.) However, Yeo does not allege the text was sent by Yoo. Rather, Yeo alleges that Shin made this statement. As such, Yeo has necessarily not alleged facts which could show defamation by Yoo. 

            The Court finds leave to amend is not warranted here. The first alleged statement could not rise to defamation as a matter of law, and the second alleged statement was not made by Yoo at all. Accordingly, there is no reason to believe these defects could be resolved with leave to amend.

            Based on the foregoing, Yoo’s demurrer to the first cause of action is sustained, without leave to amend.

II.               Assault and Battery

Yoo argues that Plaintiff cannot state a claim for assault and battery because it is based solely on the alleged defamatory statements.

Here, Plaintiff does not allege that Yoo ever touched Yeo or caused Yeo to be touched, not does Yeo allege that Yoo ever caused contact or threated to touch Yeo. Rather, the only alleged threat is the statement “you bully, son of bitch destroying fucking business…” (Complaint ¶ 13.)  This falls short of assault or battery as a matter of law.

Leave will be afforded in the event that Yeo can allege facts that Yoo made physical contact or threats of physical contact in addition to statements.

Based on the foregoing, Yoo’s demurrer to the second cause of action is sustained, with 15 days leave to amend.

III.            Negligence

Yoo argues that Plaintiff cannot state a claim for negligence per se because his actions were not malicious or willful and were not unreasonable.

Per Penal Code section 415, in order to state a claim for disturbing the peace, Yeo must show that Yoo is a person who "(I) ... unlawfully fights in a public place or challenges another person in a public place to fight. (2)... maliciously and willfully disturbs another person by loud and unreasonable noise. (3)... uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction."

Here, Yeo alleges that Yoo entered the store and disturbed the peace by entering her store yelling and shouting screaming “you bully, son of bitch destroying business.”  (Complaint ¶ 13.) While Yoo may argue that his conduct was not unreasonable or willful, the Court accepts well-pled facts as true at the pleading stage. Whether or not Yoo conduct was, in fact, unreasonable, or willful, is a factual determination not properly decided at this stage.

Based on the foregoing, Yoo’s demurrer to the second cause of action is overruled.

IV.            Intentional Infliction of Emotional Distress (IIED)

Yoo argues that Yeo has failed to allege sufficient facts to state a claim for IIED because the alleged conduct falls short of extreme and outrageous as a matter of law.

The tort of intentional infliction of emotional distress is comprised of three elements: (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 suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

“For conduct to be outrageous, it “must be so extreme as to exceed all bounds of that usually tolerated by a civilized community. … [w]hether behavior is extreme and outrageous is a legal determination to be made by the court.” (Faunce v. Cate (2013) 222 Cal.App.4^th 166, 171.)

Here, Plaintiff alleges that Yoo broke the door and entered the building yelling and shouting with threats including “you bully, son of bitch destroying fucking business….” (Complaint ¶ 13.)   “…Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities are not sufficient for liability threats upon a cause of action for intentional infliction of emotional distress." (Hughes v. Pair (2007) 154 Cal. App. 4 1469.) As alleged, Plaintiff’s allegations fall short of extreme and outrageous as a matter of law.

Leave will be provided to allow Yeo to allege additional facts which could show that Yoo’s conduct rose to a level sufficient to state a claim for IIED.

Based on the foregoing, Yoo’s demurrer to the fourth cause of action is sustained, with 15 days leave to amend.

It is so ordered.

Dated:  July    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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