Judge: Thomas D. Long, Case: 23STCV22550, Date: 2024-07-16 Tentative Ruling

Case Number: 23STCV22550    Hearing Date: July 16, 2024    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On September 18, 2023, Plaintiff Anthony Bouyer field this action against Defendants Little Caesar Enterprises Inc., Douglas Kwi Ching (as Trustee of The Douglas Kwi Ching and Kathy Kwang Nam Ching Revocable Trust Dated 10/19/99), and Kathy Kwang Nam Ching (as Trustee of The Douglas Kwi Ching and Kathy Kwang Nam Ching Revocable Trust Dated 10/19/99).

On October 12, 2023, Douglas Kwi Ching filed a demurrer on behalf of himself and Kathy Kwang Nam Ching as Trustees.  (Douglas Kwi Ching is not a licensed attorney.  The Court further addresses this problem below.)  There was no attempt to meet and confer before filing the demurrer, as is required under Code of Civil Procedure section 430.41, subdivision (a).  (Fitzgerald Decl. ¶ 2.)

DEMURRER

A demurrer for sufficiency 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, accepting the alleged facts as true.  (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

Plaintiff’s sole cause of action is for violation of the Unruh Civil Rights Act.  Under the Act, business establishments must provide people with disabilities with equal access to their accommodations, advantages, facilities, privileges, and services.  (Civ. Code, § 51.) 

The demurrer generally argues that Plaintiff is not a genuine customer, lacks standing to bring his claim under the Unruh Civil Rights Act, has unclean hands, and brought this frivolous action for improper purposes.  (Demurrer at pp. 3-7.)  Plaintiff alleges that he “is substantially limited in performing one or more major life activities,” encountered barriers that prevented him from patronizing Defendants’ business, and was denied full and equal access to the business.  (Complaint ¶¶ 1, 11, 22-27.)  This sufficiently alleges that Plaintiff has standing to bring an action under the Unruh Civil Rights Act.  Plaintiff’s other contentions involve factual issues and defenses that cannot be resolved on demurrer.

The demurrer also argues that Plaintiff did not serve a mandatory prelitigation demand letter.  (Demurrer at p. 5.)  Civil Code section 55.3, subdivision (b) sets forth the items that must be included “with each demand letter or complaint sent to or served upon a defendant or potential defendant alleging a construction-related accessibility claim.”  It does not require a demand letter; the additional information may be included with the service of a complaint.  That is what happened here: the filed Proofs of Service reflect service of an “Advisory Notice to Defendant” and “Important Advisory Information for Building Owners and Tenants” along with the summons and complaint.

The demurrer is OVERRULED.

Douglas Kwi Ching and Kathy Kwang Nam Ching (as Trustees) are ordered to file an Answer no later than September 17, 2024.

ORDER TO SHOW CAUSE

Douglas Kwi Ching filed this demurrer on behalf of himself as Trustee of The Douglas Kwi Ching and Kathy Kwang Nam Ching Revocable Trust Dated 10/19/99 and on behalf of Kathy Kwang Nam Ching as Trustee of The Douglas Kwi Ching and Kathy Kwang Nam Ching Revocable Trust Dated 10/19/99.

“[Business and Professions Code] Section 6125 states, ‘No person shall practice law in California unless the person is an active member of the State Bar.’  Under the statute, one who is not a licensed attorney cannot appear in court for another person.”  (Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 547.)  A trustee’s duties in connection with their role as trustee do not include the right to represent the trust in propria persona in an action involving the trust property.  (Id. at p. 548.)  “The actions of the trustee affect the trust estate and therefore affect the interest of the beneficiaries.  A nonattorney trustee who represents the trust in court is representing and affecting the interests of the beneficiary and is thus engaged in the unauthorized practice of law.”  (Id. at p. 549.)

Douglas Kwi Ching is not a licensed attorney with the State Bar of California.  He therefore cannot represent himself or Kathy Kwang Nam Ching as Trustees of the Trust.

Douglas Kwi Ching and Kathy Kwang Nam Ching (as Trustees) must retain licensed counsel in order to file an Answer and further defend this action.[1]

Any future filings made by Douglas Kwi Ching or Kathy Kwang Nam Ching as in propria persona Trustees will be stricken for being filed in violation of state law and this Order.  (Code Civ. Proc., § 436, subd. (b).)

An Order to Show Cause Re: Retention of Counsel for Defendant Trustees is scheduled for September 17, 2024 at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse.  If Douglas Kwi Ching and Kathy Kwang Nam Ching (as Trustees) have not retained counsel and filed an Answer by that date, the Court may place them in default.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

         Dated this 16th day of July 2024