Judge: Monica Bachner, Case: 21STCV44315, Date: 2023-03-03 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 21STCV44315    Hearing Date: March 3, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants Raydien Wu’s and Ming Ping Wu’s unopposed demurrer to Plaintiff Sherman C. White’s, 1st, 2nd, and 3rd causes of action in his first amended complaint is sustained with 20 days leave to amend.

This Court, sua sponte, strikes Plaintiff’s 4th cause of action of his first amended complaint.

Defendants’ unopposed motion to strike is denied as moot.

          Defendants Raydien Wu [erroneously sued as Mr. R. Wu] (“Raydien”) and Ming Ping Wu [erroneously sued as Mr. M. Wu] (“Ming Ping”) (collectively, “Wu Defendants”) demur unopposed to the first amended complaint (“FAC”) of Plaintiff Sherman C. White (“White”) (“Plaintiff”).  (Notice of Demurrer, pgs. 1-2.)  Defendants also move unopposed to strike portions of the FAC, including Plaintiff’s requests for punitive damages and attorneys’ fees.  (Notice of Motion, pgs. 1-2.)

Background

On December 6, 2021, Plaintiff, in pro per, filed his complaint against Wu Defendants and non-moving Defendants Jianzhi Jiang (“Jiang”) and Shujun Zhou (“Zhou”) (collectively, “Non-moving Defendants”) in the instant action alleging four causes of action: (1) breach of contract, (2) theft of property, (3) retaliatory harassment, and (4) intentional infliction of emotional distress arising from a rental contract.   (See Complaint.)   Defendants filed a demurrer to Plaintiff’s complaint, which this Court sustained with leave to amend as to the 1st, 2nd, and 3rd causes of action and sustained without leave to amend as to the 4th cause of action.  (7/18/22 Ruling.)  On August 9, 2022, Plaintiff filed the operative FAC, alleging the same four causes of action.

Plaintiff alleges he rented a room from Defendant Jiang in July 2020.  (FAC, pg. 1.)  Plaintiff alleges Defendant Jiang is either the “sub-lessor” or the “property manager” of the owners for both #101 and #105 Backus Avenue, Pasadena, CA (“Property”), property jointly owned by Wu Defendants.  (FAC, pg. 2.)  Plaintiff alleges Defendant Jiang lives on the Property attached to #101 Backus Avenue, and Defendant Zhu managed #105 Backus Avenue during the first year of Plaintiff’s tenancy.  (FAC, pg. 2.)  Plaintiff alleges in September 2020, he suffered financial and physical distress from COVID-19 and deferred his rent payments by providing written notice to Defendant Jiang.  (Complaint, pg. 4.)  Plaintiff alleges Jiang demanded Plaintiff work for him in a labor capacity of construction work to “pay for rent,” which Plaintiff declined. (Complaint, pgs. 4-5.)  Plaintiff alleges Defendant Jiang then began harassing Plaintiff with threats of eviction and demanded Plaintiff leave.  (Complaint, pg. 5.)  Plaintiff alleges Defendant Jiang took Plaintiff’s property and placed it on the street for people to take and vandalized Plaintiff’s property by slashing the seat of a $400 leather easy chair and breaking the rails of Plaintiff’s bed.  (Complaint, pg. 5.)

On August 26, 2022, Defendants filed the instant demurrer and associated motion to strike.  On February 21, 2023, Plaintiff filed a notice of non-opposition.

1.    Demurrer

Summary of Demurrer

In support of their demurrer to Plaintiff’s FAC, Defendants argue Plaintiff’s first cause of action fails because (1) fails to state facts sufficient to constitute a cause of action; (2) the facts set forth are exactly the same as the original Complaint, which was rejected by this Court and remains uncertain with regards to whether a contract was entered between Plaintiff and moving Defendants, the terms of the contract, the date of the contract, the dates and times of any breaches, and whether Plaintiff performed necessary conditions on his part; and (3) Plaintiff fails to allege whether the subject contract is written, oral, or implied by conduct.  (Demurrer, pg. 3.)  Defendants argue Plaintiff’s second cause of action fails because it is (1) uncertain and (2) fails to state facts sufficient to constitute a cause of action.  (Demurrer, pg. 4.)  Defendants argue Plaintiff’s third cause of action fails because it is (1) uncertain and (2) fails to state facts sufficient to constitute a cause of action.  Defendant argues Plaintiff’s fourth cause of action was previously demurred to and sustained without leave to amend and therefore should be stricken.  (Demurrer, pg. 4.)

Failure to Allege Contract is Written, Oral, or Implied

Breach of Contract (1st COA)

Where a written instrument is the foundation of a cause of action, it may be pleaded in haec verba by attaching a copy as an exhibit and incorporating it by proper reference or “a plaintiff may plead the legal effect of the contract rather than its precise language.”  (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)  Wu Defendants demur on the ground Plaintiff fails to allege whether the subject contract is written or oral nor does it set forth any of the material terms of the contract.  (Demurrer, pg. 3.)

Accordingly, Wu Defendants’ demurrer to the first cause of action for failure to allege the contract is written, oral, or implied by conduct is sustained with 20 days leave to amend.

Failure to State a Claim

Breach of Contract (1st COA)

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)  “If the action 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. [Citation]”  (Id.; see also Construction Protective Services, Inc. v. TIG Specialty Insurance Co. (2002) 29 Cal.4th 189, 198-199 [“In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language. [Citation]”].)

Plaintiff’s breach of contract cause of action is based on allegations Wu Defendants are in breach of their landlord-tenant contract after conspiring to harass Plaintiff into abandoning the Property at #101 Backus Avenue.  Plaintiff alleges Defendants breached the rental contract by harassing Plaintiff to work to “pay off rents” that were legally deferred and by harassing Plaintiff.  (FAC, pg. 12.)  Plaintiff alleges that when he did not agree to work for the landlord, Defendants criminally harassed Plaintiff with threats, and by stealing and destroying Plaintiff’s personal property, vandalizing Plaintiff’s refrigerator, and enlisting another tenant to bully Plaintiff into leaving the property.  (FAC, pg. 12.) 

Plaintiff failed to allege sufficient facts to constitute a cause of action for breach of contract. Plaintiff does not plead the legal effect of the terms of the lease agreement he purportedly entered with Defendant Jiang and makes no allegations suggesting Wu Defendants are party to the lease agreement. To the extent Plaintiff seeks to hold defendants who are not party to the agreement liable for the cause of action, he must allege a basis. Moreover, in failing to allege the terms of the agreement, Plaintiff has failed to allege how Wu Defendants breached the agreement, especially considering the fact Plaintiff makes no factual allegations as to Wu Defendants’ conduct aside from being the record owners of the Property.

Based on the foregoing, Wu Defendants’ demurrer to the 1st cause of action is sustained with leave to amend.

Theft of Property (2nd COA) [Conversion]

There is no civil cause of action for theft of property and based on the factual allegations, however, the Court construes Plaintiff’s cause of action as one for conversion.  (Welco Electronics v. Mora (2014) 223 Cal.App.4th 202.)

“‘A cause of action for conversion requires allegations of plaintiff’s ownership or right to possession of property; defendant’s wrongful act toward or disposition of the property, interfering with plaintiff’s possession; and damage to plaintiff. [Citation.]”  (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.)

Plaintiff’s theft of property is based on allegations that Defendant Jiang stole Plaintiff’s personal property that Plaintiff stored outdoors under cover at the residence (as other tenants also do), threw Plaintiff’s property into garbage bins, and placed other property on the street for where it was taken by passersby.  (FAC, pg. 13.)  Plaintiff alleges Defendant Jiang’s actions were done without notifying Plaintiff so that Plaintiff could not reclaim or move the property, and therefore Defendant Jiang stole Plaintiff’s property with malicious intent.  (FAC, pg. 13.)  Plaintiff fails to allege facts supporting a cause of action for conversion against Wu Defendants. All factual allegations relate to Defendant Jiang’s conduct with relation to Plaintiff’s personal property and there are no allegations that Wu Defendants engaged in wrongful acts toward the property or disposed Plaintiff of his property.

Based on the foregoing, Wu Defendants’ demurrer to the 2nd cause of action is sustained with leave to amend.

Harassment (3rd COA)

Plaintiff’s harassment cause of action is based on allegations that Defendant Jiang retaliated against Plaintiff by using threats, destruction of property, theft, conspiracies with other tenants, goading Plaintiff into fights, and disabling Plaintiff’s refrigerator among other allegations.  (FAC, pgs. 14-15.)  Plaintiff has not specified a statute or ordinance that provides the cause of action.  Moreover, even if such a cause of action exists, the allegations do not allege any conduct by the Wu Defendants, or a basis for holding Wu Defendants liable for the harassing conduct of Jiang.

Based on the foregoing, Wu Defendants’ demurrer to the 3rd cause of action is sustained with leave to amend.

          Conclusion

          Wu Defendants’ demurrer to Plaintiff’s 1st, 2nd, and 3rd cause of action for Breach of Contract is sustained with 15 days leave to amend.

2.    Motion to Strike

In light of the Court’s ruling on the 1st, 2nd, and 3rd causes of action in Wu Defendants’ demurrer, Defendants’ motion to strike is moot as to those causes of action.  However, pursuant to C.C.P. §436, the Court strikes Plaintiff’s 4th cause of action sua sponte.

          Motion to Strike

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or 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.” A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects.  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)  The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice.  (C.C.P. §437.)  Conclusory allegations will not be stricken where they are supported by other, factual allegations in the complaint.  (See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 [“The distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.” [Citations.]].)

“A court is not required to tolerate purported amended complaint that fails to amend previous pleading, is not filed in good faith, is filed in disregard of established procedural requirements, or is otherwise violative or orderly judicial administration.”  (Tostevin v. Douglas (1958) 160 Cal.App.2d 321, 331, quoting Neal v. Bank of America National Trust & Savings Association (1949) 93 Cal.App.2d 678, 682-683.)  A motion to strike is properly granted where a plaintiff continues to plead the same allegations to which prior demurrers have been sustained, without attempt to cure.  (Kronsberg v. Wershow (1965) 238 Cal.App.2d 170, 172-173; Taliaferro v. Prettner (1955) 135 Cal.App.2d 157, 159.)

This court, by its own motion strikes Plaintiff’s 4th cause of action in the FAC exceeds the scope of this Court’s granting of leave to amend.  The original Complaint contained four causes of action, including the 4th cause of action for intentional infliction of emotional distress. The Complaint was challenged by Defendant’s demurrer. This Court sustained Defendants’ demurrer to the 4th cause of action without leave to amend. Accordingly, the 4th cause of action in Plaintiff’s FAC is improperly pled in violation of this Court’s order and must be stricken.   (7/18/22 Ruling; C.C.P. §436(b).)

Accordingly, this court, sua sponte, strikes Plaintiff’s 4th cause of action of Plaintiff’s FAC.

Dated:  March ____, 2023

Hon. Monica Bachner

Judge of the Superior Court