Judge: Salvatore Sirna, Case: 23PSCV02399, Date: 2023-12-04 Tentative Ruling
The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.
Case Number: 23PSCV02399 Hearing Date: December 4, 2023 Dept: G
Defendant Betty Chu’s Demurrer
to Complaint
Respondent: NO OPPOSITION
FILED BY PLAINTIFF
TENTATIVE RULING
Defendant Betty Chu’s Demurrer
to Complaint is
SUSTAINED with ten (10) days leave to amend as to the first, second, and eighth
causes of action and without leave to amend as to the third and fourth causes
of action.
BACKGROUND
This
action arises from a commercial landlord-tenant dispute. In December 2021,
Plaintiff Yan Xiong allegedly entered into a sublease agreement with Henry Wong
Trading, Henry Wong, and Patrick Tong for a commercial property in La Puente. According
to the agreement, Xiong agreed to make monthly payments to the La Puente
property’s owner, Defendant Betty Chu. Xiong alleges Xiong timely paid rent and
had no issues until June 16, 2023, when Chu served Xiong with a three-day
notice to quit. At the same time, Xiong alleges Chu locked Xiong out of the La
Puente property.
On
August 7, 2023, Xiong filed a complaint against Chu and Does 1-10, alleging the
following causes of action: (1) breach of contract, (2) breach of the covenant
of quiet enjoyment, (3) harassment, (4) retaliation, (5) trespass, (6)
intentional infliction of emotional distress (IIED), (7) violation of Business
and Professions Code section 17200 et seq., and (8) wrongful eviction.
On October
23, 2023, Chu filed the present demurrer. Prior to filing on October 10, Chu’s
counsel attempted to meet and confer telephonically with Xiong’s counsel but
was unable reach counsel over the phone. (Sun Decl., ¶ 5-6.)
A hearing
on the demurrer is set for December 4, 2023. A case management conference and
OSC Re: Failure to File Proof of Service is also set for January 18, 2024.
ANALYSIS
Chu
demurs to Xiong’s first cause of action (breach of contract), second cause of
action (breach of the covenant of quiet enjoyment), third cause of action
(harassment), fourth cause of action (retaliation), and eighth cause of action
(wrongful eviction). For the following reasons, the court SUSTAINS Chu’s demurrer in its
entirety.
Legal Standard
A
party may demur to a complaint on the grounds that it “does not state facts
sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd.
(e).) A demurrer tests whether the complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering
demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT
Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) 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 pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.” (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action.” (Hahn, supra, at p. 747.)
Breach of Contract (First Cause of Action)
Chu
argues Xiong’s first cause of action for breach of contract fails to plead
sufficient facts to state a claim. The court agrees.
Legal Standard
To
state a cause of action for breach of contract, a plaintiff must be able to
establish “(1) the existence of the contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and (4) the resulting
damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51
Cal.4th 811, 821.) 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.)
Discussion
In
the case, Xiong alleges Xiong is subleasing the La Puente property from Henry Wong
Trading, Wong, and Tong. (Complaint, ¶ 8.) Xiong provided a copy of an unsigned
lease agreement that purports to be between Xiong and Henry Wong Trading, Wong,
and Tong. (Complaint, Ex. A.) But “[a] subtenant generally has neither privity
of estate nor privity of contract with the original lessor.” (Syufy
Enterprises v. City of Oakland (2002) 104 Cal.App.4th 869, 885; Marchese
v. Standard Realty & Dev. Co. (1977) 74 Cal.App.3d 142, 147 (Marchese)
[“The sublessee is in privity only with his own sublessor.”].) Because Xiong fails
to allege any other facts that can establish a contractual relationship between
Xiong and Chu as the La Puente property’s owner, the court finds this cause of
action insufficiently pled.
Accordingly,
Chu’s demurrer to this cause of action is SUSTAINED with leave to amend.
Breach of the Covenant of Quiet Enjoyment (Second
Cause of Action)
Chu
contends Xiong’s second cause of action for breach of the covenant of quiet judgment
fails to plead sufficient facts to state a claim. The court agrees.
Generally,
a sublessee cannot sue a lessor for breach of the covenant of quiet enjoyment due
to the lack of privity of contract unless “a lessor has expressly agreed to a
sublease.” (Marchese, supra, 74 Cal.App.3d at p. 147.) Here,
Xiong failed to allege how Chu expressly agreed to the sublease. Instead, as
noted above, Xiong merely alleged the existence of a sublease between Xiong and
Henry Wong Trading, Wong, and Tong.
Accordingly,
Chu’s demurrer to this cause of action is SUSTAINED with leave to amend.
Harassment and Retaliation (Third and Fourth Causes of
Action)
Chu
maintains Xiong’s third cause of action for harassment pursuant to Civil Code
section 1940.2 and fourth cause of action for retaliation pursuant to Civil
Code section 1942.5, subdivision (c) fail to plead sufficient facts to state a
claim. The court agrees.
Legal Standard
Civil
Code section 1940.2 prohibits a landlord from engaging in certain actions “for
the purpose of influencing a tenant to vacate a dwelling.” (Civ. Code, §
1940.2, subd. (a).) Civil Code section 1942.5 prohibits retaliation against the
lessees of dwellings. For the purposes of these sections, a “‘[d]welling unit’
means a structure or the part of a structure that is used as a home, residence,
or sleeping place by one person who maintains a household or by two or more
persons who maintain a common household.” (Civ. Code, § 1940, subd. (c).)
Discussion
In
this case, Xiong fails to allege any facts that establish the La Puente
property as a dwelling covered by these anti-harassment and retaliation
provisions. In fact, Xiong alleges the opposite, stating the La Puente property
is a “commercial rental unit” and claiming to be a “commercial tenant.” (Complaint,
¶ 7, 28.)
Accordingly,
Chu’s demurrer to the third and fourth causes of action is SUSTAINED without leave to amend.
Wrongful Eviction (Eighth Cause of Action)
Chu
argues Xiong’s eighth cause of action for wrongful eviction fails to plead
sufficient facts to state a claim. The court agrees.
Here,
Xiong’s wrongful eviction claim is based on Chu’s alleged breach of the
covenant of quiet enjoyment. (Complaint, ¶ 49.) Thus, this cause of action also
fails to state a claim for the same reasons noted in the court analysis of the
acuse of action for breach of the covenant of quiet enjoyment, as stated above.
Accordingly,
Chu’s demurrer to this cause of action is SUSTAINED with leave to amend.
CONCLUSION
Based on the foregoing, Chu’s
demurrer to Xiong’s Complaint is SUSTAINED with ten (10) days leave to amend
as to the first, second, and eighth causes of action. Furthermore, Chu’s
demurrer is SUSTAINED without leave to amend as to the third and fourth
causes of action.