Case Name: Sandy Park v. Nancy Kim, et al.
Case No.: 19CV341095

Demurrer to Complaint

Factual and Procedural Background

Plaintiff Sandy Park (“Park”) is the owner of real property located at 1280 Poplar Avenue in Sunnyvale (“Subject Property”). (Complaint, ¶1.) On or about September 6, 2017, plaintiff and defendant Nancy Kim entered into a one year written lease agreement for the Subject Property. (Complaint, ¶8 and Exh. 1.) Thereafter, defendants Nancy Kim and her brother, defendant Timothy Kim, occupied the Subject Property. (Complaint, ¶9.)

On or about August 15, 2018, plaintiff Park and defendant Nancy Kim agreed to extend the lease term for an additional six months. (Complaint, ¶10.) Defendant Nancy Kim gave her brother, Timothy Kim, power of attorney to enter into a written lease extension. (Id.) The rent increased to $3,750 per month and the lease expiration became April 30, 2019. (Id.) Defendant Timothy Kim signed the new lease extension on behalf of defendant Nancy Kim. (Id. See also Complaint, Exh. 2.) Defendant Nancy Kim authorized her brother to sign on her behalf and/or later adopted and ratified the new lease agreement. (Id.) An email from defendant Nancy Kim agreeing to extend the lease to April 2019 is attached to the complaint. (Complaint, ¶11 and Exh. 3.)

On or about September 1, 2018, defendant Nancy Kim breached the lease agreement by terminating the lease agreement before the April 30, 2019 expiration date. (Complaint, ¶12.) Section 10 of the lease agreement states, in relevant part, “Lessee shall be responsible for damages caused by his or her negligence and that of his or her family invitees and guests.” (Complaint, ¶13 and Exh. 2.) Section 14 of the lease agreement states, “Lessee shall keep and maintain the premises in a clean and sanitary condition at all times, and upon the termination of the tenancy shall surrender the premises to Lessor in as good condition as when received, ordinary wear and damage by the elements excepted.” (Complaint, ¶14 and Exh. 2.) Defendant Nancy Kim breached sections 10 and 14 of the lease agreement. (Complaint, ¶15.)

Plaintiff Park used all reasonable efforts to mitigate damages and rent the Subject Property after defendant Nancy Kim’s breach. (Complaint, ¶16.)

On January 15, 2019, plaintiff Park filed a complaint against defendants Nancy Kim and Timothy Kim asserting causes of action for:

(1) Breach of Contract
(2) Negligence
(3) Waste
On March 15, 2019, defendants Nancy Kim and Timothy Kim filed the motion now before the court, a demurrer to the complaint.

I. Defendants Nancy Kim and Timothy Kim’s demurrer to the first cause of action [breach of contract] in plaintiff Park’s complaint is OVERRULED.

A. Statute of Frauds.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; see also CACI, No. 303.) Initially, defendants demur to the first cause of action for breach of contract by arguing that a demurrer lies for a defense disclosed on its face and plaintiffs fail to plead around the defense. The specific defense that defendants raise is the statute of frauds. “Where the complaint seeks to enforce an agreement required to be in writing under the statute of frauds, but nonetheless alleges the agreement was oral, a general demurrer lies. The complaint on its face discloses a bar to recovery.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶7:58, p. 7(I)-34 citing Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1503—where complaint seeks to enforce contract subject to statute of frauds, failure to allege written contract signed by defendant is legal issue properly decided on demurrer.)

“The statute of frauds is a collective term describing the various statutory provisions that deny enforcement to certain enumerated classes of contracts unless they are reduced to writing and signed by the party to be charged.” (1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §342, p. 390.) “The California statute of frauds (Civil Code §1624) provides that certain contracts ‘are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent.” (Id. at §343, p. 391.) One type of contract subject to the statute of frauds is, “An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged.” (Civil Code §1624, subd. (a)(3).)

In opposition, plaintiff Park argues the statute of frauds does not apply here because the agreement is for a lease for a period less than one year. Defendants incorrectly focus on that part of Civil Code section 1624, subdivision (a)(3) which states, “of an interest therein.” That language modifies the portion of the statute which reads, “for the sale of real property,” not the portion which reads, “for the leasing for a longer period than one year.” The court agrees that the statute of frauds does not apply here.

Consequently, the court does not even reach defendants’ argument that defendant Timothy Kim did not have valid authorization from defendant Nancy Kim.

B. Uncertainty.

Defendants demur on the additional ground that the first cause of action is uncertain. More specifically, defendants appear to argue that the agreement is unenforceable because it lacks certain and definite terms.

“Under California law, a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties’ obligations and to determine whether those obligations have been performed or breached.” (Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623, 2 Cal.Rptr.2d 288.) “To be enforceable, a promise must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770, 23 Cal.Rptr.2d 810; Robinson & Wilson, Inc. v. Stone, supra, 35 Cal.App.3d at p. 407, 110 Cal.Rptr. 675.) “Where a contract is so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained, the contract is void and unenforceable.” (Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481, 289 P.2d 785; Civ.Code, § 1598; see also Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 770, 23 Cal.Rptr.2d 810.) “The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.” (Rest.2d Contracts, § 33, subd. (2); accord, Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 811, 71 Cal.Rptr.2d 265.) But “[i]f … a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.” (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 811, 71 Cal.Rptr.2d 265.)

(Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209.)

After citing Bustamante, defendants argue, “NANCY KIM did not sign the contract and her brother, TIMOTHY KIM, had no written authority signed by her to do so on her behalf.” This argument does not go to the certainty of the contract’s terms but rather a repeat of defendants’ statute of frauds argument. In the court’s view, plaintiff Park has alleged contract terms which are sufficiently definite to be enforceable. (See Complaint, ¶¶12 – 14 and Exh. 2.)

Accordingly, defendants Nancy Kim and Timothy Kim’s demurrer to the first cause of action in plaintiff Park’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] (i.e., barred by the statute of frauds) and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.

II. Defendants Nancy Kim and Timothy Kim’s demurrer to the second cause of action [negligence] in plaintiff Park’s complaint is OVERRULED.

Defendants acknowledge plaintiff Park’s allegation that defendants owed a duty to plaintiff arising from the lease agreement. Defendants contend, however, the second cause of action for negligence is uncertain because it is not clear which lease agreement plaintiff Park is relying upon.

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616 (Khoury).) A “demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e. he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶7:85, p. 7(I)-42 citing Khoury, supra, 14 Cal.App.4th at p. 616.) Here, the complaint is not so uncertain that defendants cannot determine what allegations must be admitted or denied or what claims are directed against them.

Again, defendants incorporate their earlier argument concerning the statute of frauds which, as discussed above, the court has overruled.

Defendants argue further that if the damages alleged in the complaint stem from the first lease agreement, the issues have already been resolved in a small claims hearing. The court understands defendants to be asserting res judicata or collateral estoppel. However, defendants’ argument relies on extrinsic facts to contradict allegations of the complaint which is improper on demurrer. “In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 – 214.)

Accordingly, defendants Nancy Kim and Timothy Kim’s demurrer to the second cause of action in plaintiff Park’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.

III. Defendants Nancy Kim and Timothy Kim’s demurrer to the third cause of action [waste] in plaintiff Park’s complaint is OVERRULED.

“Waste is any unlawful act or omission, by the tenant, or other person in possession of land, that causes permanent injury to the inheritance by injuriously affecting the market value of the property.” (7 Miller & Starr, California Real Estate (3rd ed. 2004) Landlord and Tenant, §19:126, pp. 385 – 386 citing Code Civ. Proc., §732; Civ. Code, §2929; see also Old Republic Ins. Co. v. Superior Court (1998) 66 Cal.App.4th 128, 149, overruled on other grounds in Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 841, fn. 13.)

Defendants again argue uncertainty. As stated above, the complaint is not so uncertain that defendants cannot determine what allegations must be admitted or denied or what claims are directed against them.

Defendants argue additionally that they did not create waste because they vacated the Subject Property on September 15, 2018 and “left everything in good order, which is documented by photographic evidence. Nancy Kim won her case in Small Claims court for the refund of her security deposit because of evidence she presented as to the good condition of the property when she and her brother moved out.” As indicated above, defendants’ argument relies on extrinsic facts which is improper on demurrer.

Accordingly, defendants Nancy Kim and Timothy Kim’s demurrer to the third cause of action in plaintiff Park’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.

The court will prepare the order.