Judge: Joseph Lipner, Case: 24STCV12456, Date: 2024-08-29 Tentative Ruling
Case Number: 24STCV12456 Hearing Date: August 29, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
STEVEN YUN,
Plaintiff, v. JOANNE KIM, et al., Defendants. |
Case No:
24STCV12456 Hearing Date: August 29, 2024 Calendar Number: 6 |
Defendants Joanne Kim (“Kim”) and Youngjun Go (“Go”) (collectively,
“Defendants”) demur to the First Amended Complaint (“FAC”) filed by Plaintiff
Steven Yun dba Lohi General Construction (“Plaintiff”).
The Court SUSTAINS the demurrer to Plaintiff’s first, second,
and third claims WITH LEAVE TO AMEND.
Plaintiff shall have 20 days to file an amended complaint.
This is a construction contract case. The following facts
are taken from the allegations of the FAC, which the Court accepts as true for
the purposes of the demurrer.
Plaintiff alleges that he is a general contractor with a C33
license and a license number of 1088199 with the City of Los Angeles, the
County of Los Angeles.
On December 5, 2023, Plaintiff entered into a written
agreement whereby Plaintiff agreed to remodel Defendants’ home in exchange for
$315,000.00, including labor and materials.
Defendants paid Plaintiff a total of $200,000.00 in
installment payments.
Plaintiff alleges that he completed 80 percent of the
construction, leaving only 20 percent of the construction to be completed.
Plaintiff alleges that Defendants owe him the remaining $115,000.00 under the
agreement.
Plaintiff alleges that Defendant Go engaged in a course of
conduct intended to harass, humiliate, and insult Plaintiff by shouting
“fucking you” during the construction of the house. (Complaint ¶ 12.)
Plaintiff alleges that Defendants owned a large dog which
bit Plaintiff.
Plaintiff appears to allege that Defendants made false
representations to Plaintiff, but it is unclear what the content of the alleged
representations is.
Plaintiff filed this action on May 17, 2024. The operative
Complaint is now the FAC against Defendants, which raises claims for (1) breach
of contract; (2) slander per se; and (3) dog bit statute, Civil Code, section
3342.
The Court grants Defendants’ request for judicial notice and
takes notice of the Verified Certificate of Non-Licensed Status for Steven
Youngsuk Yun dba Lohi General Construction as a public record.
As a general matter, in a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins.
Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading
alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
348.) The burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Ibid.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
If a breach of contract claim “is based on alleged breach of
a written contract, the terms must be set out verbatim in the body of the
complaint or a copy of the written agreement must be attached and incorporated
by reference.” (Harris v. Rudin, Richman
& Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a
plaintiff may also “plead the legal effect of the contract rather than its
precise language.” (Construction
Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189,
198-199.)
“To protect the public, the Contractors' State License Law
(CSLL; Bus. & Prof. Code, § 7000 et seq.) imposes strict and harsh
penalties for a contractor's failure to maintain proper licensure. Among other
things, the CSLL states a general rule that, regardless of the merits of the
claim, a contractor may not maintain any action, legal or equitable, to recover
compensation for ‘the performance of any act or contract’ unless he or she was
duly licensed ‘at all times during the performance of that act or contract.’ ”
(MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc.
(2005) 36 Cal.4th 412, 418, quoting Bus. & Prof. Code, § 7031, subd. (a).))
Defendants provide a Verified Certificate of Non-Licensed
Status for Steven Youngsuk Yun dba Lohi General Construction, which is
judicially noticeable as a public record. The certificate indicates that no
record was found to indicate that Plaintiff was licensed as a California
contractor under the laws administered by the Contractors State License Board
for the period of January 1, 2022 to July 9, 2024.
Plaintiff alleges that he entered into the contract that
gives rise to this case on December 5, 2023. Thus, Plaintiff was not licensed
for the period when the contract was performed and when the work occurred.
Because Plaintiff was an unlicensed contractor, Plaintiff
cannot maintain his claim for breach of contract.
The Court therefore sustains the demurrer to this claim. Plaintiff does not give any basis on which he
can overcome this legal problem.
However, in an abundance of caution—given California’s liberal rules
relating to leave to amend—the Court will grant Plaintiff an opportunity to
amend to overcome this problem. Accordingly, the Court grants Plaintiff leave
to amend.
“The elements of a defamation claim are (1) a publication
that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural
tendency to injure or causes special damage. The defamatory statement must
specifically refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Court (2016) 1
Cal.App.5th 1300, 1312 [quotation marks and citation omitted].)
“A
slander that falls within the first four subdivisions of Civil Code section 46
is slander per se and require no proof of actual damages.” (Regalia v. The
Nethercutt Collection (2009) 172 Cal.App.4th 361, 367.) A statement is
slander per se if it:
“1.
Charges any person with crime, or with having been indicted, convicted, or
punished for crime;
2.
Imputes in him the present existence of an infectious, contagious, or loathsome
disease;
3.
Tends directly to injure him in respect to his office, profession, trade or
business, either by imputing to him general disqualification in those respects
which the office or other occupation peculiarly requires, or by imputing
something with reference to his office, profession, trade, or business that has
a natural tendency to lessen its profits; [or]
4. Imputes to
him impotence or a want of chastity[.]”
(Civ. Code, § 46.)
“Because
the statement must contain a provable falsehood, courts distinguish between
statements of fact and statements of opinion for purposes of defamation
liability. Although statements of fact may be actionable as libel, statements
of opinion are constitutionally protected.” (McGarry v. University of San Diego
(2007) 154 Cal.App.4th 97, 112.)
The FAC does not identify an allegedly false statement of
fact that Defendants made about Plaintiff. Plaintiff alleges that Go shouted
“fucking you” near Plaintiff and other workers. This is not a statement of
fact.
Additionally, the FAC does not allege that Go’s exclamation
was about Plaintiff. Nor does the FAC allege that Go’s statement had a natural
tendency to cause damage or fell within one of the statutory categories of
slander per se.
The Court therefore sustains the demurrer to this claim with
leave to amend.
“The owner of any dog is liable for the damages suffered by
any person who is bitten by the dog while in a public place or lawfully in a
private place, including the property of the owner of the dog, regardless of
the former viciousness of the dog or the owner's knowledge of such viciousness.
A person is lawfully upon the private property of such owner within the meaning
of this section when he is on such property in the performance of any duty
imposed upon him by the laws of this state or by the laws or postal regulations
of the United States, or when he is on such property upon the invitation,
express or implied, of the owner.” (Civ. Code, § 3342, subd. (a).)
Defendants argue that Plaintiff was an unlicensed contractor
and was therefore unlawfully on Defendants’ property. Plaintiff has alleged
that Defendants invited him onto their property to work on their house.
Defendants provide no citation to authority to support the assertion that an
unlicensed contractor cannot lawfully enter private property when invited to do
work there. It is not clear why Plaintiff’s license status is relevant to this
claim.
Defendants argue that Plaintiff has not alleged that he was
bitten while he was lawfully on Defendants’ property because the FAC does not
mention whether the dog bite occurred during Plaintiff’s work on the property,
or after the contract had ended. The Court agrees. Plaintiff must allege when
the bite occurred in order to clarify whether Plaintiff was lawfully on
Defendants’ property at the time of the bite.
The Court therefore sustains the demurer to this claim with
leave to amend.