Case Number: KC066804    Hearing Date: September 02, 2014    Dept: O

Ting v. L-K Family VII, LLC, et al. (KC066804)

1. Defendants L-K Family VII, LLC, 201450 Golden Springs, LLC, and Loekman’s DEMURRER TO COMPLAINT

2. Doe 1 Defendant Richard Suhardja’s DEMURRER TO COMPLAINT

Respondent: Plaintiff Ting filed a Combined Opposition

TENTATIVE RULING

1. Landlord’s demurrer

Defendants L-K Family VII, LLC, 201450 Golden Springs, LLC, and Loekman’s demurrer to complaint is SUSTAINED without leave to amend as to the 3rd – 4th, and 10th causes of action, SUSTAINED with 10 days leave to amend as to the 5th – 7th, and 11th causes of action, and OVERRULED as to the 1st – 2nd, 8th – 9th, and 12th causes of action.

3rd, 4th, and 10th CAUSES OF ACTION: DECLARATORY RELIEF, INJUNCTIVE RELIEF, and BREACH OF HABITABILITY:

Demurrer is SUSTAINED without leave to amend. Plaintiff agreed to dismiss these claims.

1st – 2nd CAUSES OF ACTION: BREACH OF LEASE and BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING:
The elements for a breach of contract cause of action are: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) In alleging a breach of contract cause of action, it is necessary to specify whether the contract is written, oral or implied by conduct. (CCP 430.10(g).) In order to plead a written contract (the first element listed above), a plaintiff must, in addition to alleging the making of the contract, do one of the following: (1) set forth the contract in haec verba; or (2) plead the contract’s legal effect by alleging the substance of its relevant terms. (4 Witkin, California Procedure 4th Edition, ¿¿479-481.) In order to plead an oral contract, a plaintiff must plead its legal effect, i.e., allege the substance of the contractual terms. (Id., at 483.) BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING: The elements are: 1) Existence of contractual relationship; 2) implied duty; 3) breach; and 4) causation of damages. (E.g., Smith v. San Francisco (1990) 225 Cal.App.3d 38, 49; 1 Witkin Sum. Cal. Law (10th ed. 2005) Contracts § 800.)

Par. 25 alleges a contract. Par. 26 alleges Plaintiff’s performance. Par. 27 alleges Defendants breached the lease by removing bathrooms and turning off water. Par. 13 alleges that the bathrooms were removed on 3/7/14. Par. 28 alleges damages. Defendants contend there are no provisions in the lease that require Defendants to offer such entitlements. However, the Lease was for “premises,” and allowed Plaintiff to park 2 limousines and 2 vans on the premises. Further, the Lease refers to “restrooms,” which implies that restrooms were being offered as part of the leasehold. The Notice to Vacate demanded that Plaintiff vacate the property by 3/31/14. Therefore, the removal of the bathrooms and water were within the lease period. As alleged, demurrer is OVERRULED.

8TH CAUSE OF ACTION: INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE: To prevail on a cause of action for intentional interference with prospective economic advantage in California, a plaintiff must plead and prove (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) the defendant’s intentional acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the defendant’s acts. (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1152 n. 6. See also Smith v. Pust (1993) 19 Cal. App. 4th 263, 274 – the act must have been intentionally directed at the plaintiff or done in the plaintiff’s presence.)

Pars. 63-64 allege Plaintiff’s business relationship with customers to provide limousine or other transportation services. Par. 65 alleges Defendants’ knowledge of such relationship. Pars. 66-67 alleges intentional and actual disruption. Par. 68 alleges damages. Demurrer is OVERRULED.

9TH CAUSE OF ACTION: BREACH OF COVENANT OF QUIET ENJOYMENT:
Defendants contend Breach of the Covenant of Quiet Enjoyment only lasts during the lease term. Like the contract cause of action, the removal of the bathrooms and water is alleged to have occurred during the lease term. Demurrer is OVERRULED.

12th CAUSE OF ACTION: IIED:
The elements are: 1) outrageous conduct by defendant; 2) intentional or reckless causing emotional distress; 3) severe emotional distress; and 4) causation. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259; Trerice v. Blue Cross of California (1989) 209 Cal. App. 3d 878, 883 – “court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery”; Cross v. Bonded Adjustment Bureau (1996) 48 Cal. App. 4th 266, 283 and Alcorn v. Anbro Eng., Inc. (1970) 2 Cal.3d 493, 499 – outrageous conduct is a fact question where reasonable minds may differ.)

A tenant may state a cause of action for intentional infliction of emotional distress by alleging that she has suffered extreme emotional distress as a result of a landlord’s and property manager’s knowing, intentional, and willful failure to correct defective conditions of a premises. (Burnett v. Chimney (2004) 123 Cal.App.4th 1057, 1062.)

Par. 85 alleges Defendants’ removal of bathrooms and locks as intentional acts. Par. 87 alleges severe emotional distress. Demurrer is OVERRULED.

5TH and 11th CAUSES OF ACTION: NEGLIGENCE and NIED:
Par. 46 alleges that Defendant landlord owes Plaintiff a duty of care. However, this allegation is conclusory, and fails to state an independent duty beyond the parties’ contractual relationship. Even if Plaintiff bases his Negligence claim on the acts of Al & Sons, the Complaint fails to allege how such claim gives rise to a tort claim against landlord Defendants.

Further, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests. (Potter v. Firestone tire & Rubber Co. (1993) 6 Cal.4th 965, 985.)

The Complaint fails to allege any threat of physical injury or independent duty separate from the contractual relationship. Demurrer is SUSTAINED with 10 days leave to amend.

6TH CAUSE OF ACTION: TRESPASS TO CHATTEL:
The elements are: 1) Intentional interference; 2) with the possession of personal property; and 3) caused injury. (Intel Corp. v. Hamidi (2003) 30 Cal. 4th 1342, 1350-1351.)

Par. 50 alleges that Plaintiff had the right to park the vehicles in the parking lot, and Defendant interfered with Plaintiff’s possession by having Al & Sons to the vehicles.

Par. 12 alleges that although the Notice to Vacate was dated 2/13/14, Plaintiff did not receive notice until 3/6/14. Par. 18 alleges that the vehicles were towed on 4/6/14. Even accepting Plaintiff’s allegations as true, Plaintiff was given 30 days statutory notice. Therefore, the leasehold expired on 4/5/14, and the towing of the vehicles on 4/6/14 was not a trespass. Demurrer is SUSTAINED with 10 days leave to amend.

7TH CAUSE OF ACTION: CONVERSION:
The elements are: 1) Plaintiff’s ownership or right to possession of personal property; 2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and 3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, *5 – money cannot be the subject of a cause of action for conversion unless there is an identifiable sum; Fischer v. Machado (1996) 50 Cal.App.4th 1069, 1072; Farmers Ins. Exchange v. Zerin (1997) 53 Cal. App. 4th 445, 451.)

Plaintiff concedes he recovered his vehicles. It is unclear how his vehicles were converted. Demurrer is SUSTAINED with 10 days leave to amend.

2. Suhardja’s Demurrer

Doe 1 Defendant Richard Suhardja’s demurrer to complaint is SUSTAINED with 10 days leave to amend.

Plaintiff has not alleged any facts supporting any individual liability against Defendant Suhardja. Demurrer is SUSTAINED with 10 days leave to amend.