Judge Olivia Rosales, Case 21STCV41940 2022-09-20 Tentative Ruling

Judge: Olivia Rosales, Case: 21STCV41940, Date: 2022-09-20 Tentative Ruling

Case Number: 21STCV41940 Hearing Date: September 20, 2022 Dept: SEC

KIM v. PARK

CASE NO.: 21STCV41940

HEARING: 9/20/22 @ 1:30 PM

TENTATIVE RULING

I. Defendants Ahn, Chong, and Sim’s demurrer to Complaint is SUSTAINED without leave to amend as to the 7^th cause of action, and OVERRULED as to uncertainty, and the 8^th - 9^th causes of action.

II. Defendants Ahn, Chong, and Sim’s motion to strike is GRANTED without leave to amend.

Defendants are ORDERED to file and serve their Answers within 10 days.

Moving Parties to give NOTICE.

I. DEMURRER

Defendants Ahn, Chong, and Sim demur to the 7^th – 9^th causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action, and are uncertain.

The operative First Amended Complaint (“FAC”) alleges that Plaintiff Tayler Kim (minor) was enrolled in an after school learning center and summer camp operated by Defendants between June 2017 and December 2018. Defendant Yejun Park also attended the center. Park is another minor who was two years older than Plaintiff. Park touched and massaged Plaintiff’s buttocks and breasts daily without Plaintiff’s consent. Based thereon, the FAC asserts causes of action for:

1. Sexual Assault and Battery

2. IIED

3. Negligence Per Se

4. Gross Negligence

5. Parental Negligence

6. Negligent Supervision

7. Premises Liability

8. Breach of Contract

9. Breach of the Implied Covenant of Good Faith and Fair Dealing

UNCERTAINTY

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the complaint is so bad that a defendant cannot reasonably respond. (Ibid.)

The court finds that the FAC is not so bad that Defendants cannot reasonably respond. Demurrer based on uncertainty is OVERRULED.

7^th CAUSE OF ACTION

PREMISES LIABILITY:

The elements are: Defendant was owner, occupant or lessor of premises; defendant was negligent in the use, maintenance or management of premises; and negligence was a cause of injury, damage, loss or harm to plaintiff. (BAJI 8.00; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal. App. 3d 1611, 1619.)

¶¶ 105-107 allege that the Center was approximately 4800 square foot, housing 100 or more students at all relevant times, resulting in overcrowding and the “inability to properly oversee the students.”

Plaintiff has conflated “supervision” with a premises liability. Plaintiff does not allege that she suffered injury from overcrowding. Instead, the gravamen of Plaintiff’s SAC alleges that she suffered injury when another student touched her without her consent. That injury has nothing to do with the square footage of the facility.

As Plaintiff was given an opportunity to amend, but failed to identify any unsafe condition on the premises that caused her injury, demurrer is SUSTAINED without leave to amend.

8^th CAUSE OF ACTION

BREACH OF CONTRACT:

“A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.” (CCP § 430.41(b).)

Defendants previously demurrer to Plaintiff’s Complaint, and failed to demur to the Breach of Contract causes of action. Defendants could have raised this legal issue in the earlier version of the complaint.

Accordingly, demurrer is OVERRULED.

9^th CAUSE OF ACTION

BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING:

The elements are: 1) existence of contractual relationship; 2) implied duty; 3) breach; and 4) causation of damages. (E.g., Smith v. San Francisco (1990) 225 Cal.App.3d 38, 49; 1 Witkin Sum. Cal. Law (10^th ed. 2005) Contracts § 800.)

¶¶ 112-113 allege that Plaintiff entered into a written contract with Defendants to “assist parents to monitor, supervise and keep safe the children attending the Center.” ¶ 122 alleges that Plaintiff entrusted her child to Defendant based on this covenant and representation. ¶ 121 alleges that the parents were not allowed to enter the Center to ensure reasonable safety for their children. ¶ 123 alleges that Defendant failed to adhere to its purpose by overcrowding the premises and failing to properly supervise the children.

At this juncture, the court finds the cause of action is adequately pled. Demurrer is OVERRULED.

II. MOTION TO STRIKE

The corresponding motion to strike punitive damages is GRANTED without leave to amend. Plaintiff failed to allege any malicious, oppressive, or fraudulent conduct on the part of Defendants. All that Plaintiff has alleged amounts to negligent supervision. As Plaintiff was given prior leave to correct the deficiencies in the complaint, but failed to do so, leave to amend is denied.

If discovery reveals facts supporting malice, oppression, or fraud, Plaintiff may later seek leave to amend. At this juncture, there are no facts supporting punitive damages against these Defendants.