Judge: William A. Crowfoot, Case: 21GDCV01039, Date: 2023-05-05 Tentative Ruling

Case Number: 21GDCV01039    Hearing Date: May 5, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

Plaintiff Haoxiao Liu (“Plaintiff”) filed this action on August 12, 2021 against defendant Tianxiao Jiang (“Defendant”) alleging one cause of action for fraud.  Plaintiff filed the operative First Amended Complaint on September 9, 2022, in which he alleges that Defendant has made misrepresentations to various city officials and a Los Angeles Superior Court judge.  Plaintiff alleges that on or about June 15, 2020, he received a “notice to abate” from the County of Los Angeles’s Department of Public Health after Defendant falsely reported that Plaintiff’s residence is full of bugs and animal feces.  (FAC., ¶¶ 6-7.)  Defendant also made these representations to Monterey Park’s police department and animal control department.  Plaintiff also alleges that Defendant filed a meritless small claims action alleging a slip and fall and other habitability issues including bug bites and “sanitation problems”.  (FAC ¶ 11.) 

This matter is on for an OSC re: Entry of Default and Default Prove-up Pursuant to CCP § 585.  Plaintiff previously filed a request for entry of default on December 16, 2022, but it was rejected on the same day because there was no proof that the operative FAC was served.  On December 22, 2022, Plaintiff filed a proof of service showing that Ding Li mailed the FAC to Defendant.  But Plaintiff is still not entitled to the entry of default at this time. 

Statement of Damages

Plaintiff is seeking to recover for personal injury.  Accordingly, he must file and serve a statement of damages pursuant to Code of Civil Procedure section 425.11, subd. (d) on Judicial Council Form CIV-050.  The statement must be “served in the same manner as a summons.”  (Code Civ. Proc., § 425.11, subd. (bd)(1).)  The statement must be served before a default may be taken. 

On July 8, 2022, Plaintiff filed a “statement of damages in support of application for default judgment.” This document is insufficient because it is not on the mandatory Judicial Council Form CIV-050 and the proof of service shows that it was served on Defendant by depositing the document with the U.S. Postal Service, without complying with the rest of Code of Civil Procedure section 415.30.  To serve a summons by mail, the defendant must sign and mail back a notice and acknowledgement of receipt.  (Code Civ. Proc., § 415.30, subd. (c.)  There must be two copies of the notice and acknowledgment mailed to the defendant, as well as a return envelope, postage prepaid, addressed to the sender.  (Id., subd. (a).) 

Failure to State a Claim

The Court additionally notes that the allegations of the complaint do not allege fraud because there are no allegations that Plaintiff relied on any of the misrepresentations made by Defendant.   Defendant’s misrepresentations were to various government agencies or officials, and Plaintiff did not rely on them, but actively contested them. 

However, it appears that Plaintiff is attempting to state a claim for intentional infliction of emotional distress (“IIED”).  To prevail on an IIED claim, plaintiff must prove: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 [internal quotes omitted]; see Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 896; So v. Shin (2013) 212 Cal.App.4th 652, 671.)

If Plaintiff seeks to pursue an IIED claim, Plaintiff must amend his complaint to add allegations of intent and severe or extreme emotional distress.  Currently, Plaintiff alleges that Defendant’s misrepresentations were made “for the purpose of retaliation and extortion” and to diminish Plaintiff’s reputation.  (FAC, ¶¶ 17-18.)  Plaintiff also does not allege that his emotional distress was actually severe, only that Defendant “kn[ew] how much it can hurt the Plaintiff to his core as the Plaintiff loves his beloved dogs and cats so so much.”  (FAC, ¶ 14.)  As currently pleaded, Plaintiff’s FAC fails to state a claim to support a judgment.   

Moving party to give notice.

Dated this 5th day of May, 2023

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.