Case Number: KC067001    Hearing Date: October 21, 2014    Dept: J

Re: Jenny Kim, etc. v. Phillips Village Investors, LLC, etc. (KC067001)

DEMURRER TO COMPLAINT

Moving Party: Defendant Phillips Village Investors, LLC

Respondent: Plaintiff Jenny Kim

POS: Moving OK; Opposing and Reply served by regular mail contrary to CCP § 1005(c)

Plaintiff Jenny Kim dba Village Cleaners, a lessee in a commercial building owned by Defendant Phillips Village Investors, LLC, alleges that Defendant failed to provide sufficient security for the premises, failed to properly maintain the premises, and manipulated the city into holding a hearing to convert the premises to residential homes. On 7/14/14, Plaintiff filed a Complaint for:

1. Breach of Fiduciary Duty
2. Intentional Infliction of Emotional Distress
3. Intentional Interference of Business.

The Case Management Conference is set for 11/18/14.

Defendant Phillips Village Investors, LLC (“Defendant”) demurs to the Complaint by Plaintiff Jenny Kim (“Plaintiff”) on the grounds that it fails to state facts sufficient to constitute a cause of action.

FIRST CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY:

To properly assert a cause of action for breach of fiduciary duty, the plaintiff must allege the following elements: (1) the existence of a fiduciary duty; (2) breach of the duty; and (3) damage caused by the breach. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 182.) In an ordinary commercial context, the relationship of landlord and tenant is not of a “special” or “fiduciary” nature. (Girard v. Delta Towers Joint Venture (1993) 20 Cal.App.4th 1741, 1748–1749 – no “unique” or “fiduciary” relationship exists in a “garden variety landlord-tenant relationship in a commercial setting.”

The Complaint alleges that Plaintiff purchased a business named Village Cleaners and entered into a written Assignment of Lease Agreement with Defendant’s predecessor (Complaint ¶¶ 10 and 15); and that Defendant breached its fiduciary duty owed to Plaintiff by failing to enforce security, failing to take proper care of the premises, and acting for its own benefit (Id. ¶¶ 28-29). However, there are no allegations in the Complaint to demonstrate that Defendant (landlord) owed a fiduciary duty to Plaintiff (tenant). The demurrer to the first cause of action is sustained.

SECOND CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

Intentional Infliction of Emotional Distress (“IIED”) requires: (1) outrageous conduct by the defendant; (2) intentional or reckless causing of emotional distress; (3) severe emotional distress; and (4) causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal. App. 4th 1228, 1259.) Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590; see also Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

The Complaint, based on the allegations that Defendant failed to enforce security on the premises and maintain the premises, attempts to assert a cause of action for IIED. (Complaint ¶¶ 32-35.) However, the alleged conduct by Defendant is not “outrageous” as required by law. Thus, the demurrer to the second cause of action is sustained.

THIRD CAUSE OF ACTION FOR INTENTIONAL INTERFERENCE OF BUSINESS:

To state a claim for intentional interference with prospective economic advantage, plaintiff must show: (1) an economic relationship between plaintiff and some third party, with the probability of future economic benefit to plaintiff; (2) defendant’s knowledge of the relationship; (3) intentional acts on defendant’s part designed to disrupt the relationship; (4) actual disruption of the relationship; (5) economic harm to plaintiff proximately caused by defendant’s acts; and (6) defendant’s acts were “wrongful by some legal measure other than the fact of interference itself.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153–1154; see also CACI 2202.)

The Complaint alleges that on June 12, 2014, Plaintiff learned that the City of Pomona held a hearing regarding a plan to build multiple residential houses in the center that Plaintiff leases, but that Defendant failed to properly inform Plaintiff about the hearing (Complaint ¶ 38); Defendant purchased the premises and manipulated to request the city to build residential houses with the malicious intent to close down Plaintiff’s business (Id. ¶ 39); Plaintiff lost business because her clients thought the building was going to close soon (Id. ¶ 40); and that Defendant failed to enforce security on the premises to protect the remaining tenants (Id. ¶ 41).

The Complaint fails to adequately allege facts demonstrating that Defendant engaged in any “wrongful” conduct. The demurrer to the third cause of action is sustained.

The court will hear from Plaintiff as to whether leave to amend the Complaint should be allowed, and as to which cause(s) of action, and will require an offer of proof as to what additional facts can be alleged if Plaintiff is allowed to amend.