Judge: Upinder S. Kalra, Case: 23STCV18830, Date: 2023-12-20 Tentative Ruling

Case Number: 23STCV18830    Hearing Date: February 22, 2024    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   February 22, 2024                                          

CASE NAME:           Seung Jim Jwa, et al. v. Eung Hee Lee aka Eunghee Lee

CASE NO.:                23STCV18830

DEMURRER TO FIRST AMENDED COMPLAINT

MOVING PARTY:  Defendant Eung Hee Lee

RESPONDING PARTY(S): Plaintiffs Seung Jin Jwa and Sun Rye Lee

REQUESTED RELIEF:

1.      Demurrer to the entire FAC for failure to state sufficient facts to constitute a cause of action and for uncertainty.

TENTATIVE RULING:

1.      Demurrer to the First, Second, and Fourth Causes of Action is OVERRULED;

2.      Demurrer to the Third Cause of Action is SUSTAINED, without leave to amend pending argument by Plaintiffs.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On August 8, 2023, Plaintiffs Seung Jin Jwa and Run Rye Lee (Plaintiffs) filed a Complaint against Defendant Eung Hee Lee aka Eunghee Lee (Defendant) with six causes of action for: (1) Breach of the Implied Covenant of Quiet Enjoyment; (2) Breach of the Implied Warranty of Habitability; (3) Breach of Lease; (4) Violation of L.A.M.C. Section 151.01 et seq.; (5) Violation of Business and Profession Code Section 17200, et seq.; and (6) Negligence.

According to the Complaint, this concerns a property located at 500 South Berendo Street, Apartment 411, Los Angeles, California 90020-5606 (the Property) that Plaintiffs lease from Defendant.  Plaintiffs allege they lived at the Property since June 15, 2019, and that Defendant demanded Plaintiffs vacate on June 21, 2023, so they could remodel it and sell the unit. Plaintiffs allege various problems with the Property during their tenancy of which they notified Defendant.

On October 2, 2023, Defendant filed a demurrer to the Complaint, which the court SUSTAINED with leave to amend.

On January 30, 2024, Plaintiffs filed a First Amended Complaint (FAC) with four causes of action for: (1) Breach of Lease; (2) Violation of L.A.M.C. Section 151.01 et seq.; (3) Violation of Business and Profession Code Section 17200, et seq.; and (4) Negligence.

On February 5, 2024, Defendant filed the instant demurrer to the FAC.[1] On February 7, 2024, Plaintiffs filed an opposition.

LEGAL STANDARD:

Meet and Confer

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The Declaration of Jamie Kim provides that the parties met and conferred via telephone at least five years before the responsive pleading was due.

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.¿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. …. 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¿147 Cal.App.4th at 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.) Courts also consider exhibits attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94 (Frantz).)

ANALYSIS:

First Cause of Action – Breach of Lease

Defendant contends that this cause of action fails because it insufficiently alleges Plaintiffs’ performance or Defendant’s breach. Defendant also contends the FAC insufficiently alleges damages. Plaintiffs argue they sufficiently plead breach of lease.

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.) “A written contract may be pleaded either by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference – or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms.’” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993.)  

First, Plaintiffs identify three separate written leases and attach them to the FAC. (FAC ¶¶ 8, Exhibits A, B, and C.) It appears the lease pertinent to this cause of action is the June 15, 2022, lease. (FAC ¶ 11, Exhibit C.) Second, Plaintiffs were current on their lease obligations, including payment of rent through June 30, 2023. (FAC ¶ 12.) Third, Defendant breached the lease by demanding Plaintiffs vacate before the lease term expired. (FAC ¶¶ 11, 12, 15.) Fourth, reading the FAC in context, Plaintiffs sufficiently allege damages because they had already fully paid their rent and were forced to vacate early. (FAC ¶ 16.)

Accordingly, the court OVERRULES Defendant’s demurrer to the First Cause of Action.

Second Cause of Action – Violation of L.A.M.C. Section 151.01 et seq.

Defendant contends that this cause of action fails because Plaintiffs did not sufficiently allege that L.A.M.C. Section 151.01 et seq. applies to the Property as a condominium.[2] Plaintiffs argue that they sufficiently alleged this cause of action.

Eviction of a tenant in a LARSO covered property must be premised on good cause.  (See LAMC §151.09(A).)  The Los Angeles Municipal Code § 151.09 provides the only permissible grounds that a landlord may bring in an action to recover possession of a rental unit and prohibits landlords from terminating leases without one of 14 enumerated causes.  (LAMC § 151.09(A).)

LAMC § 151.09(C) provides that, to terminate a tenancy, a landlord must serve the tenant with a written notice “as described in Civil Code Section 1946 or Code of Civil Procedure Sections 1161 and 1161a.”  The notice provisions of CCP § 1161 require strict compliance.  (Feder v. Wreden Packing & Provision Co. (1928) 89 Cal.App.665, 670.) 

Upon reviewing the FAC, Plaintiffs sufficiently alleged violation of LAMC Section 151.01 et seq. First, Plaintiffs allege the Property is covered by the ordinance. (FAC ¶ 18.) Second, Plaintiffs allege that Defendant did not provide adequate notice to vacate. (FAC ¶¶ 11, 12, 20.) Third, Plaintiffs allege that Defendant did not comply with LARSO’s written notice requirements and did not offer relocation fees. (FAC ¶¶ 11, 12, 13, 20, 21.) Fourth, Plaintiffs allege that Defendant demanded Plaintiffs vacate so she could sell the Property to other renters, which is not one of the 14 enumerated causes. (FAC ¶ 12.)

Accordingly, the court OVERRULES Defendant’s demurrer to the Second Cause of Action.

Third Cause of Action – Violation of Business and Profession Code Section 17200, et seq.

Defendant contends that Plaintiffs failed to sufficiently allege an unlawful business practice, failed to sufficiently allege an unfair business practice with particularity, and failed to plead fraud with particularity. Plaintiffs argue that they properly plead this cause of action because Defendant violated LARSO and engaged in illegal rental practices.

Unfair competition is any unlawful, unfair, or fraudulent business practices or act and unfair, deceptive, untrue, or misleading advertising. (Bus. & Prof. Code § 17200.)¿ A plaintiff needs to identify statutory, regulatory, or decisional law that the defendant has violated.¿ (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 352.)¿Unfair competition “borrows” violations of other laws and authorizes a separate action pursuant to unfair competition. (See Farmers Ins. Exch. v. Superior Court (1992) 2 Cal.4th 377, 383.) Unfair conduct in unfair competition actions must be violative of public policy and “tethered to specific constitutional, statutory, or regulatory provisions.”¿ (Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 940.) As a statutory cause of action, allegations of unfair business practices must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) The statutory violations must be specifically delineated and said violations must relate to a business activity.¿ (Ibid.)¿¿¿

Upon reviewing the FAC, Plaintiffs have not sufficiently alleged violation of Business and Profession Code Sec. 17200 et seq. Notably, Plaintiffs allege that Defendant failed to perform her duties under LARSO and under the June 15, 2022 lease which constituted an unfair business practice.  (FAC ¶¶ 24, 25, 26.) The court does not see factual allegations supporting this cause of action with reasonable particularity.

Accordingly, the court SUSTAINS Defendant’s demurrer to the Third Cause of Action.

Fourth Cause of Action – Negligence

Defendant contends that Plaintiffs did not adequately allege facts supporting this cause of action. Plaintiffs argue that they sufficiently alleged a cause of action for negligence pertaining to keeping the Property in good condition.

The elements of a negligence cause of action are duty, breach of that duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) “ ‘ “[T]he threshold element of a cause of action for negligence is the existence of a duty to use care toward an interest of another that enjoys legal protection against unintentional invasion.” ‘ [Citations.] ‘ “Duty is a question of law for the court.” ’ [Citation.] It is ‘ “to be determined on a case-by-case basis.” ’ [Citations.] ‘ “A duty may arise through statute, contract, or the relationship of the parties.” ’ [Citation.] Additionally, ‘ “California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. [Citation.]” [Citation.] Civil Code section 1714, subdivision (a) provides in relevant part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” ’[Citation.]” (Shipp v. Western Engineering, Inc. (2020) 55 Cal.App.5th 476, 489-90.) 

Upon reviewing the FAC, Plaintiffs sufficiently alleged a cause of action for negligence. First, Defendant owed Plaintiffs a duty in the ownership, management and control of the Property leased to Plaintiffs. (FAC ¶¶ 8, 9, 29.) Second, Defendant breached that duty by failing to remedy the leaky ceiling until after Plaintiffs vacated the Property. (FAC ¶ 10.) Third, Defendant’s breach actually and proximately caused Plaintiffs’ damages because the leaking ceiling damaged Plaintiffs’ belongings. (FAC ¶¶ 9, 10.) Finally, Plaintiffs sustained property damage. (FAC ¶¶ 9, 31.)

Accordingly, the court OVERRULES Defendant’s demurrer to the Fourth Cause of Action.

Leave to Amend

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect.  (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)  The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349).

Here, Plaintiffs did not request leave to amend. The court will provide an opportunity at the hearing for Plaintiffs to indicate how they could amend the Third Cause of Action. Otherwise, the court is inclined to deny leave to amend.

CONCLUSION:

            For the foregoing reasons, the Court decides the pending motion as follows:

1.Demurrer to the First, Second, and Fourth Causes of Action is OVERRULED;

2.Demurrer to the Third Cause of Action is SUSTAINED, without leave to amend pending argument by Plaintiffs.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             February 22, 2024                   __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court