Judge Theresa M. Traber, Case Number: 23STCV08524, Date: 2024-12-02 Tentative Ruling

Judge: Theresa M. Traber, Case: 23STCV08524, Date: 2024-12-02 Tentative Ruling

Case Number: 23STCV08524 Hearing Date: December 2, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: December 2, 2024 TRIAL DATE: NOT SET

CASE: Kyung Yoon Pak v. Ock J. Kim, et al.

CASE NO.: 23STCV08524

DEMURRER TO FIRST AMENDED COMPLAINT AND MOTION TO STRIKE

MOVING PARTY: Defendants Ock J. Kim, Sunhee Yi, the Ock J Trock J Kim Trust, and Ock J Kim, Trustee of the Ock J Trock J Kim Trust

RESPONDING PARTY(S): No response on eCourt as of 11/25/24

CASE HISTORY:

· 04/18/23: Complaint filed.

· 03/18/24: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a habitability defect action. Plaintiff alleges that Defendants refused to repair persistent defects at the property in which Plaintiff was a tenant, including termite infestations and plumbing issues.

Defendants demur to the First Amended Complaint and move to strike portions of the Complaint.

TENTATIVE RULING:

Defendants’ Demurrer to the First Amended Complaint is SUSTAINED without leave to amend as to Defendants Kim and Yi in their individual capacity and otherwise OVERRULED.

Defendants’ Motions to Strike is GRANTED.

DISCUSSION:

Demurrer to First Amended Complaint

Defendants demur to the First Amended Complaint in its entirety.

Legal Standard

A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) 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, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet-and-confer efforts. (Code Civ. Proc., § 430.41(a).) However, an insufficient meet-and-confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

The Declaration of Felipa Richland in support of the Demurrer states that counsel for Defendants met and conferred with Plaintiff’s then-counsel, Steven Barkin, via telephone on June 5, 2024. (Declaration of Felipa Richland ISO Dem. ¶ 3.) According to Defendants’ counsel, Plaintiff’s counsel stated that “he would review the moving papers and decide whether to oppose or amend.” (Id. ¶ 4.) No details are given describing the resolution of those discussions. Defendants have therefore not satisfied their statutory meet-and-confer obligations. Nevertheless, the Court will address the Demurrer on its merits.

Impact of Prior Ruling

Plaintiff’s original complaint, filed April 18, 2023, asserted eleven causes of action against Defendants Ock J. Kim and Sunhee Yi as individuals: (1) Breach of the Warranty of Habitability (styled as “Breach of Contract”); (2) Breach of the Implied Covenant of Good Faith and Fair Dealing; (3) Breach of the Covenant of Quiet Enjoyment; (4) Nuisance; (5) Intentional Infliction of Emotional Distress; (6) Negligent Infliction of Emotional Distress; (7) Negligence; (8) Wrongful Eviction; (9) Constructive Eviction; (10) Conversion; and (11) Violation of Civil Code section 1942.4. (See Complaint.) On December 15, 2023, the Court sustained Defendants’ demurrer to the Complaint in its entirety as to those Defendants, finding that a judicially noticeable deed of trust established that neither individual was the owner of the property, and, essentially, that Plaintiff had named the wrong parties. (December 15, 2023 Minute Order.) That ruling sustained the demurrer without leave to amend as to the individuals but was without prejudice to an amended pleading naming the correct parties. (Id.)

Plaintiff’s Amended Complaint, filed March 18, 2024, asserts six causes of action against the same individual Defendants: (1) Violation of Civil Code section 1942.4; (2) Breach of the Warranty of Habitability; (3) Breach of the Covenant of Good Faith and Fair Dealing; (4) Nuisance; (5) Unfair Competition in violation of Business & Professions Code section 17200; and (6) Negligence. (See First Amended Complaint.) With respect to the individual Defendants, the first through fourth, and sixth causes of action are in direct contravention of this Court’s ruling that those claims were not properly asserted against those Defendants because they are not the owners of the subject property as a matter of law.

Defendants’ Demurrer to the first through fourth and sixth causes of action is therefore SUSTAINED without leave to amend as to Defendants Kim and Yi in their individual capacity.

Fifth Cause of Action: Unfair Competition

Defendants also demur to the fifth cause of action for unfair competition for failure to state facts sufficient to constitute a cause of action. As this cause of action is entirely derivative of the other causes of action (see FAC ¶ 38), this cause of action is fatally deficient as to the Individual Defendants.

Accordingly, Defendants’ Demurrer to the fifth cause of action is SUSTAINED without leave to amend as to Defendants Kim and Yi in their individual capacity.

Doe Defendants

After the First Amended Complaint was filed, Plaintiff filed two simultaneous Doe Amendments to the Complaint naming the Ock J Trock J Kim Trust as Doe 1 and Ock J Kim as Trustee of the Ock J Trock J Kim Trust as Doe 2. (See March 29, 2024 Doe Amendments.) The Doe Defendants also purport to demur to the First Amended Complaint. However, Defendants’ papers are focused entirely on the claims against the individual Defendants to the exclusion of the Doe Defendants. The Court therefore finds that Defendants have not demonstrated the deficiency of the pleadings as to the Trust or its Trustee.

Accordingly, Defendants’ Demurrer to the First Amended Complaint is OVERRULED in its entirety as to the Trust Defendants.

Conclusion

Accordingly, Defendants’ Demurrer to the First Amended Complaint is SUSTAINED without leave to amend as to Defendants Kim and Yi in their individual capacity and otherwise OVERRULED.

Motion to Strike Portions of First Amended Complaint

Defendants move to strike the Doe Amendment to the First Amended Complaint naming the Ock J Trock J Kim Trust as a Defendant.

Legal Standard

Meet and Confer

The Declaration of Felipa Richland in support of the Motion states that counsel for Defendants met and conferred with Plaintiff’s then-counsel, Steven Barkin, via telephone on June 5, 2024. (Declaration of Felipa Richland ISO Mot. ¶ 3.) According to Defendants’ counsel, Plaintiff’s counsel stated that “he would review the moving papers and decide whether to oppose or amend.” (Id. ¶ 4.) No details are given describing the resolution of those discussions. Defendants have therefore not satisfied their statutory meet-and-confer obligations. Nevertheless, the Court will address the Motion on its merits.

Analysis

Defendants move to strike the Doe Amendment to the First Amended Complaint naming the Ock J Trock J Kim Trust as a Defendant on the grounds that a trust is not a legal entity. Indeed, well-established authority holds that a trust can neither sue nor be sued, and the proper party in litigation involving a trust is the trustee. (E.g. Presta v. Tepper (2009) 179 Cal.App.4th 909, 914.) The Doe Amendment naming the Trust, by itself, as a Defendant is improper on its face.

Conclusion

Accordingly, Defendants’ Motion to Strike is GRANTED.

CONCLUSION

Accordingly, Defendants’ Demurrer to the First Amended Complaint is SUSTAINED without leave to amend as to Defendants Kim and Yi in their individual capacity and otherwise OVERRULED.

Defendants’ Motions to Strike is GRANTED.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: December 2, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.