Judge: Malcolm Mackey, Case: 21STCV13812, Date: 2023-08-15 Tentative Ruling
Case Number: 21STCV13812 Hearing Date: August 15, 2023 Dept: 55
YONG
KIM v. TEH JIN WANG 21STCV13812
Hearing Date: 8/15/23,
Dept. 55
#7: DEMURRER TO COMPLAINT.
Notice: Okay
No
Opposition
MP:
Defendant TEH JING WANG
RP:
Summary
On 4/12/21, Plaintiff filed a Complaint alleging that Plaintiff
leased a premises for a retail business called "America Wild Ginseng,"
but Defendant failed to deliver the premises in good working condition, and to
fix the problems, including a terrible odor coming from pipes, and backed-up
sewage that constantly seeped into the premises.
The causes of action are:
1. BREACH OF WRITTEN
CONTRACT
2. BREACH OF COVENANT OF
QUIET ENJOYMENT
3. NEGLIGENT
MISREPRESENTATIONS
4. NEGLIGENT INFLICTION
OF EMOTIONAL DISTRESS.
MP
Positions
Moving party requests an order sustaining the demurrer
to the Complaint, on grounds including the following:
1. Plaintiffs’ Complaint fails to
state facts sufficient to constitute a cause of action against Demurring
Defendant WANG.
2. The Complaint fails as to
Plaintiff YOO S. KIM (“YOO KIM”) because the Complaint, through Exhibit “A,”
admits that Plaintiff YOO KIM is not a party to the LEASE at issue and,
therefore, has no standing to sue Defendant WANG under the Complaint that
arises out of the same LEASE;
3. Plaintiff MI YOUNG KIM’s (“MI
YOUNG”) Complaint fails because the LEASE at issue, attached to the Complaint
as Exhibit “A,” expressly contradict the allegations in the Complaint vis-à-vis
Defendant WANG. More specifically, Exhibit “A” attached to the Complaint
provides,
(A)
Tenant (Plaintiff MI YOUNG) has inspected the Premises and acknowledge that the
Premises is in good working condition (Complaint, Exhibit “A,” Section 11,)
(B)
The Premises, including plumbing and water systems, shall be maintained by
tenant (Plaintiff MI YOUNG) (Complaint, Exhibit “A,” Section 17,)
(C)
Defendant WANG (Landlord) makes no representations regarding fitness of the
Premises for tenant’s (Plaintiff MI YOUNG’s) business purposes and that tenant
(Plaintiff MI YOUNG) has made her own investigations regarding all applicable
zoning and land use laws (Complaint, Exhibit “A,” Section 12,) and
(D)
Tenant (Plaintiff MI YOUNG) is only allowed one parking space (Complaint,
Exhibit “A,” Section 8.)
Thus, Defendant WANG has no liability
for the causes of action in the Complaint based on (1) failure to deliver
Premises in good working order, (2) failure to maintain plumbing and water
systems at the Premises, (3) the Premises not being fit for Plaintiffs’
business purposes, and (4) inadequate parking space.
(Demurrer, p. 3.)
Tentative
Ruling
The unopposed demurrer is sustained, based upon all of
its page numbers.
Twenty days’ leave to amend.
The failure to file a proper and timely opposition in
trial court creates a waiver of the issues on any appeal. Bell v. Am. Title Ins. Co. (1991) 226
Cal. App. 3d 1589, 1602; Cabrini
Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683, 693. A judge in a civil case is not
"'obligated to seek out theories [a party] might have advanced, or to
articulate … that which … [a party] has left unspoken.'" Mesecher v.
However, courts generally allow at least one time to
amend a complaint, after sustaining a demurrer, even without any request for
leave to amend. McDonald v. Sup.
Alternatively, the matter should be ordered off
calendar, if the complainant voluntarily has filed an amended pleading by the hearing time.
The filing of an amended complaint pursuant to Code of
Civil Procedure Section 472 renders moot a demurrer addressing the superseded
pleading because it "'"ceases to perform any function as a
pleading."'" Sylmar Air
Conditioning v.
Finally, as to demurrer rulings, statements of
decision may consist of references to appropriate page numbers and
paragraphs. CCP §472d.