Judge: Katherine Chilton, Case: 22STLC07061, Date: 2023-03-07 Tentative Ruling

Case Number: 22STLC07061     Hearing Date: March 7, 2023    Dept: 25

PROCEEDINGS:      DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendants Shanping He, Meiting Yu

RESP. PARTY:         Plaintiffs Bbever LLC, Joanna Cheung

DEMURRER WITH MOTION TO STRIKE

(CCP §§ 430.10, 435 et seq.)

TENTATIVE RULING:

Defendants Shanping He and Meiting Yu’s Demurrer is SUSTAINED as to the first cause of action for property damage with 20 days leave to amend.  The Demurrer is OVERRULED as to the second cause of action for breach of contract.

Defendants’ Motion to Strike First Amended Complaint is DENIED.

Defendants’ request for attorney’s fees and costs is DENIED.

SERVICE: 

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[ X ] Correct Address (CCP §§ 1013, 1013a)                                     OK

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          Filed on February 21, 2023.                                    [   ] Late                      [   ] None

REPLY:                     Filed on March 2, 2023.                                    [X] Late                       [   ] None

ANALYSIS:

I.                Background

On October 21, 2022, Plaintiffs Bbever LLC (“Bbever”) and Joanna Cheung (“Cheung”), (collectively “Plaintiffs”) brought an action against Defendants Shanping He (“He”) and Meiting Yu (“Yu”), (collectively “Defendants”), for property damage and breach of contract arising out of an alleged written lease agreement.

On December 12, 2022, Defendants filed a Demurrer with Motion to Strike.  On January 3, 2023, Plaintiffs filed the First Amended Complaint (“FAC”).  As a result, the Court overruled the Demurrer as moot.  (1-17-23 Minute Order.)

On February 7, 2023, Defendants He and Yu filed the instant Demurrer with Motion to Strike (“Demurrer”).  Plaintiffs filed an Opposition on February 21, 2023.  Defendants filed a late Reply on March 2, 2023.

On February 22, 2023, pursuant to Plaintiffs’ request, the Court dismissed the second cause of action for breach of contract against Defendant Yu.  (2-21-23 Request for Dismissal.)

II.              Legal Standard

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint.  (Code of Civ. Proc. § 430.10.)  There are two types of demurrers – general demurrers and special demurrers.  (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction.  (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.)  Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered.  (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].”  (Blank, 39 Cal.3d at 318.)  It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.”  (Ibid.). At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him.  (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.)  The face of the complaint includes exhibits attached to the complaint.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)  "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence."  (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written.  (Code Civ. Proc., § 430.10(f).)  However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer.  (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due.  (Code Civ. Proc., § 430.41(a)(2).)  Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41(a)(3).)

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.”  (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.)  Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue.  (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment.  [Citation.]  Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

III.            Discussion

A.    Meet and Confer Requirements

Defense counsel states that he sent Plaintiffs’ counsel a meet and confer email.  (Ng Decl. ¶ 3.)  Defense counsel attempted to reach a resolution with Plaintiff’s attorney; however, the only agreement they reached was that Defendant Yu was not part of the contract at issue.  (Ibid. at ¶ 5.)

The Court finds that defense counsel’s declaration is sufficient to satisfy the meet and confer requirement.

B.    Demurrer – First Cause of Action for Property Damage

a.      Plaintiffs’ Allegations

The First Amended Complaint (“FAC”) makes the following allegations.  Plaintiff Bbever LLC is a California limited liability company with Plaintiff Joanna Cheung as its sole member.  (FAC ¶¶ 1-2.)  Plaintiff Bbever is “the owner of the real property located at 1600 S. 4th Street, Alhambra, California 91803.”  (Ibid. at ¶ 1.)  On or about November 1, 2019, Defendants He and Yu entered into a written lease contract (“Agreement”) with Plaintiffs Bbever and Cheung for the property located at 1600 S. 4th Street Alhambra, CA 91803 (“Property”).  (Ibid. at ¶ 11, Ex. 1.)  A copy of the Rental Agreement and/or Lease, signed by Joanna Cheung and Shanping He is attached.  (Ibid.)  The Court notes that Defendant Yu did not sign the Agreement.  (Ibid.)

During the signing of the Agreement, the parties agreed to “a 10% discount in monthly rent on the condition that Defendants are responsible for all repairs, as evident in the Agreement.”  (Ibid. at ¶ 12.)  Plaintiffs allege that “Defendants used this tactic to receive a reduction on rent” but did not make any repairs as promised and allowed “damages to prolong for weeks and months until Defendants moved out.”  (Ibid.)  The alleged damage includes water leaks that damaged the kitchen cabinets, paint in the laundry room, a complete collapse of the laundry room ceiling drywall, “damages to the tile floors … from excessive force beyond normal wear, and cigarette smoke stains completely cover[ing] the dining room and living room ceilings.”  (Ibid. at ¶ 13.)  These damages were “prolonged for weeks and months until the post-move inspection.”  (Ibid.)  According to the FAC, “[a]fter Defendants moved out, Plaintiffs were only able to lease the unit out a few weeks later after substantial repairs were made to the unit.”  (Ibid. at ¶ 14.)

Plaintiffs allege a cause of action for property damage against Defendants He and Yu.  According to Plaintiffs, the “final walk-through inspection” revealed “significant damages…beyond its normal wear and tear.”  (Ibid. at ¶¶ 16-17.)  This damage to Plaintiffs’ personal and real property includes but is not limited to: “i) kitchen cabinets; ii) tile floor; iii) paint in laundry room; iv) cigarette smoke stains on ceiling; and v) all sewers blocked from bathroom and kitchen sinks.”  (Ibid. at ¶ 17.)  As a result of Defendants’ conduct, Plaintiffs have suffered damages “in the amount of not less than $18,500.00.”  (Ibid. at ¶ 18.)

b.     Defendants’ Demurrer

Defendants’ Demurrer addresses each Plaintiff’s claims separately.

Defendants demur to the cause of action for property damage brought by Plaintiff Bbever on the grounds that Plaintiff does not state facts sufficient to constitute any cause of action.  (Demurrer p. 3.)  Defendants argue that the allegations set forth in the FAC are “unclear as to whether damage is to real property or to personal property.”  (Ibid. at p. 3.)  Moreover, Bbever alleges “to be the record title owner of the premises… and not to any personal property.”  (Ibid.)  Accordingly, “Bbever lacks standing, is not the real property of interest and has not sustained any injury/damages” as it was “never involved in any transactions as alleged.”  (Ibid. at pp. 3, 7.)  The allegation that Bbever is the title owner of the real property is not sufficient and thus, Defendants request that the Court sustain the Demurrer without leave to amend, grant Defendants’ motion to strike the FAC with respect to Bbever, and dismiss Plaintiff Bbever.  (Ibid. at p. 7.). Defendants also seeks attorney’s fees and costs as to Bbever for bringing the instant Demurrer.  (Ibid.)

Defendants also demur to the cause of action for property damage brought by Plaintiff Joanna Cheung as the allegations do not “state that Cheung is the owner of any real or personal property alleged to be damaged” and thus, “has no standing to sue for this COA.”  (Ibid. at p. 3.)  Defendants argue that “Cheung’s role in this lawsuit was not defined” and the allegations do not confer standing on Cheung.  (Ibid. at p. 8.)  There are no allegations indicating that Cheung “is the agent, landlord or owner of the property alleged to be damaged.”  (Ibid.)

Defendants also argue that the unit was leased to another family for more than a year and thus, “Plaintiff’s damages are uncertain and too speculative.”  (Ibid.)

c.      Plaintiffs’ Opposition to Demurrer

Plaintiffs oppose Defendants’ Demurrer and argue that there are sufficient facts pleaded in the FAC for the cause of action for property damage.

Plaintiffs state that they have alleged that Plaintiff Bbever is the owner of the real property at issue and therefore, “has standing to sue for the property damages.”  (Oppos. p. 5.)  Plaintiffs have also alleged the specific damage to the property and have put Defendants on notice regarding these allegations.  (Ibid.)

d.     Defendants’ Reply

On March 2, 2023, Defendants filed a late Reply to the Opposition.  Pursuant to Code of Civil Procedure § 1005(b), all reply papers “shall be filed with the court and a copy served on each party…at least five court days before the hearing.”  Here, the reply papers were filed and served three court days before the hearing.   The Court in its discretion, does not consider the late-filed Reply.  (Cal. Rules of Court, rule 3.1300(d).)

e.      Analysis

Plaintiffs’ first cause of action is for “property damage.”  The Court notes that “property damage” is not a cause of action in itself and can be awarded on the basis of various causes of action.  Plaintiff does not cite to any statute or legal authority that the Court can refer to in determining whether the allegations in the FAC are sufficient to state a specific cause of action.

For this reason, the Court SUSTAINS Defendants’ Demurrer to the first cause of action for property damage.

C.    Demurrer – Second Cause of Action for Breach of Contract

a.     Plaintiff’s Allegations

The Court notes that on February 22, 2023, the cause of action for breach of contract as to Defendant Yu was dismissed based on Plaintiffs’ request.  (2-21-23 Request for Dismissal.)  Thus, the Court will only address the allegations against Defendant He.

In addition to the allegations stated above, the FAC alleges that Defendant He breached the Lease Agreement by damaging the property.  (FAC ¶ 20.)  Plaintiffs allege that the Agreement contains the following provision:

CONDITION OF PREMISES: RESIDENT acknowledges that he has examined the premises and that said premises, all furnishings, fixtures, furniture, plumbing, heating, electrical facilities, all items listed on the attached inventory sheet, if any, and/or all other items provided by OWNER are all clean, and in good satisfactory condition except as may be indicated elsewhere in this Agreement. RESIDENT agrees to keep the premises and all items in good order and condition and to immediately pay for costs to repair and/or replace any portion of the above damaged by RESIDENT, his guests and/or invitees, except as provided by law. At the termination of this Agreement, all of the above-enumerated items in this provision shall be returned to OWNER in clean and good condition except for reasonable wear and tear; the premises shall be free of all personal property and trash not belonging to OWNER. It is agreed that all dirt, holes, tears, burns, or stains of any size or amount in the carpets, drapes, walls, fixtures, and/or any other part of the premises, do not constitute reasonable wear and tear.

(Ibid.)  While Plaintiffs “performed all of their obligations, covenants, and conditions required of it under the Agreement,” Defendant did not perform his obligations because he caused damage to the property and did not make necessary repairs as agreed.  (Ibid. at ¶¶ 22-24.)  As a result of the breach, Plaintiffs suffered damages “in the amount of not less than $18,500.00.”  (Ibid. at ¶ 26.)

b.     Defendants’ Demurrer

Defendants demur to Plaintiffs’ cause of action for breach of contract on the basis that “Bbever was never a signor on the Contract and therefore cannot assert a breach of an agreement that it was never a party.”  (Demurrer p. 3.)

Defendants state that “Bbever was never on the lease agreement” and “was not alleged as the owner of any property claimed to be damaged,” thus, the FAC fails to state facts constituting a cause of action by Bbever.  (Ibid. at p. 7.)  As noted in the previous section, Defendants request that the Court sustain the Demurrer without leave to amend, grant Defendants’ motion to strike Plaintiff’s complaint with respect to Bbever, and dismiss Plaintiff Bbever.  (Ibid. at p. 7.)  Defendants also seek attorney’s fees and costs as to Bbever for bringing the instant Demurrer.  (Ibid.)

Defendants further argue that the attached lease agreement “cannot be assumed…[to be] the subject of the second cause of action as it was never pled as incorporated into this second cause of action.”  (Ibid. at p. 9.)  Thus, Defendants “do not know what agreement is being breached.”  (Ibid.)

If the Agreement attached as Exhibit 1 to the FAC is considered by the Court, Defendants argue that is unenforceable because Defendants signed it under duress and deceit and without understanding the Contract, as they do not speak English.  (Ibid. at pp. 4-5.)  They state that Plaintiff Cheung and her agent “decided to take advantage of the Defendants” who had just entered the United States and “‘forced’ them to sign a written lease without explaining to them the terms of the lease.”  (Ibid.)  Furthermore, “there is no mutual assent and consent was not freely given but under duress” and thus, the “referred contract is not valid.”  (Ibid. at p. 9.)  After the type-written lease was signed, “Plaintiff inserted handwritten notes on the lease agreement” that include “onerous terms…such as making Defendants responsible for ALL REPAIRS to the unit as the unit was in a state of disrepair.”  (Ibid. at pp. 4-5, 9-10.)  Defendants also make arguments regarding the poor and uninhabitable conditions of the premises and failure to pay Defendant He for maintenance repair work.  (Ibid. at pp. 4-5.)

c.      Plaintiffs Opposition

Plaintiffs argue that Plaintiff Cheung has standing to sue for breach of contract because the Agreement is attached to the FAC and shows that it was signed in her name.  (Oppos. p. 6.)  Plaintiffs have alleged that she is the sole member of Plaintiff Bbever and thus, “it can be assumed that…the company has authorized her to enter into the lease agreement in her name.”  (Ibid. at p. 6.)  Furthermore, the Agreement is incorporated into and attached to the FAC.  (Ibid.)

Plaintiffs have alleged sufficient facts to show the existence of the contract, Plaintiffs’ performance, Defendants’ breach, and the resulting damages.  (Ibid.)  Defendants’ arguments regarding the validity of the Agreement and duress “are not subject to demurrer.”  (Ibid.)

a.      Defendants’ Reply

As discussed above, Defendants filed a late Reply to the Opposition, that does not comply with the requirements of Code of Civil Procedure § 1005(b).  The Court in its discretion, does not consider the late-filed Reply.  (Cal. Rules of Court, rule 3.1300(d).)

b.     Analysis

“‘[T]he vital elements of a cause of action based on a contract are mutual assent (usually accomplished through the medium of an offer and acceptance) and consideration.”  (Pacific Bay Recovery Inc. v. California Physicians’ Services, Inc. (2017) 12 Cal.App.5th 200, 215.)  “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.”  (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) 

“A written contract may be pleaded either by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference – or by its legal effect. [Citations.]   In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]”  (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc. § 367.)  Generally, the real party in interest is the person who has the¿right to sue under the substantive law.  (Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.)  A complaint filed by someone other than the real party in interest is subject to general demurrer on the ground that it fails to state a cause of action.  (Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758.)

The Supreme Court of the United States has established that:

The contract of the agent is the contract of the principal, and he may sue or be sued thereon, though not named therein, and notwithstanding the rule of law that an agreement reduced to writing may not be contradicted or varied by parol, it is well settled that the principal may show that the agent who made the contract in his own name was acting for him. This proof does not contradict the writing; it only explains the transaction.

(Sumner v. Flowers (1955) 130 Cal.App.2d 672, 675, citing to Ford v. Williams (1858) 62 U.S. 287, 289.)

Having reviewed the FAC, the Court finds the Plaintiffs have sufficiently pleaded the elements for a breach of contract cause of action.  Plaintiffs allege in the FAC that Defendant He entered into a written lease agreement with Plaintiff Cheung and have attached a copy of the Agreement as Exhibit 1 to the FAC.  Plaintiffs allege that Plaintiff Cheung signed the Agreement as the sole member of Plaintiff Bbever and state that Plaintiff Bbever is the owner of the Property.  Plaintiffs performed their obligations under the Agreement, while Defendant breached the contract because he damaged the Property and did not make repairs as agreed.  As a result of the breach, Plaintiffs have incurred damages of at least $18,500.

The Court also finds that the allegations are sufficient to show that Plaintiff Cheung entered into the contract as an agent of Plaintiff Bbever given that she is the sole member of the Bbever and Bbever is the owner of the Property in the Agreement.

A general demurrer can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered.  (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  The face of the complaint includes exhibits attached to the complaint.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)

Here, the Court can consider the Agreement attached to the FAC in assessing the sufficiency of the Complaint; however, the Court cannot admit extrinsic evidence regarding the circumstances surrounding the signing of the Agreement.  Therefore, Defendants’ contentions that the Agreement is invalid and unenforceable due to duress or deceit are matters left for later stages of the litigation process.

For these reasons, Defendants’ Demurrer to the FAC’s cause of action for breach of contract is overruled.

D.    Leave to Amend

The Court SUSTAINS Defendants’ Demurrer to the first cause of action for property damage and overrules the Demurrer to the second cause of action for breach of contract.

The Court finds that there is a reasonable possibility that Plaintiffs may cure the defect to the first cause of action for property damage.  Accordingly, Defendants’ Demurrer to the first cause of action for property damage is SUSTAINED with 20 days leave to amend.

E.    Motion to Strike

According to Code of Civil Procedure § 436:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strikeout any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out 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.

However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92(d).)  The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (Code Civ. Proc. § 436.)  Furthermore, § 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.”  (Code Civ. Proc. § 435.5(a).)

Here, Defendants move to strike the FAC in its entirety as to Plaintiff Bbever, arguing that it lacks standing and is not a real party of interest.  (Demurrer p. 6.)  Defendants also move to strike the first cause of action for property damage and the second cause of action for breach of contract for failure to plead sufficient facts to constitute a cause of action.  (Ibid. at p. 8.)

As discussed above, the Court finds that defense counsel’s declaration is sufficient to show that Defendants have satisfied the meet and confer requirement.

However, the Court finds that Defendants have not cited to legal authority demonstrating that they are entitled to an order striking any portion of the FAC.  Furthermore, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92(d).)  Here, Defendants’ Motion to Strike is not brought on any grounds permissible in a limited jurisdiction court.  Defendants’ Demurrer is the proper way to challenge the FAC for failure to plead sufficient facts and lack of standing.

Accordingly, Defendants’ Motion to Strike is DENIED.

F.    Attorney’s Fees

Defendants request attorney’s fees and costs against Plaintiff Bbever for the instant Motion.  (Demurrer p. 7.)  The Court finds that Defendants have not cited to any legal authority showing that they are entitled to attorney’s fees and costs and have not made any specific requests.  Thus, Defendants’ request for attorney’s fees and costs is DENIED.

IV.           Conclusion & Order

For the foregoing reason,

Defendants Shanping He and Meiting Yu’s Demurrer is SUSTAINED as to the first cause of action for property damage with 20 days leave to amend.  The Demurrer is OVERRULED as to the second cause of action for breach of contract.

Defendants’ Motion to Strike First Amended Complaint is DENIED.

Defendants’ request for attorney’s fees and costs is DENIED.

Moving party is ordered to give notice.