SEI YOUNG LEE, ET AL. v. SOON MOUNG LEE, ET AL.

Case No.:  1-14-CV-261337

DATE:  July 29, 2014

TIME:  9:00 a.m.

DEPT.: 3

As an initial matter the Court in ruling on a demurrer or motion to strike considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted.  “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.

Defendants’ demurrer to the entire FAC on the ground that “Plaintiff Diane Choi has no legal capacity to use,” Demurrer at 3:6, is OVERRULED.  As Plaintiffs point out, lack of “Legal capacity to sue” usually refers to a party being a minor, deceased, or having been adjudicated incompetent or insane.  It is not apparent from the face of the FAC that any of these are applicable to Plaintiff Choi.

Defendants’ demurrer to the FAC’s 1^st cause of action for Breach of Contract on the ground that it fails to state sufficient facts because their alleged installation of a water purification system is not a breach of the lease agreement attached to the FAC as exhibit 1 is OVERRULED.

Paragraph 16 of the lease agreement (“Alterations; Repairs”) attached to the FAC as exhibit 1 states in pertinent part that “Unless otherwise specified by law or paragraph 28C, without Landlord’s prior written consent (i) Tenant shall not make any repairs, alterations or improvements in or about the Premises including: painting, wallpapering, adding or changing locks, installing antenna or satellite dish(es), placing signs, displays or exhibits, or using screws, fastening devices, large nails or adhesive materials . . .”  If a contract set out in the complaint (or attached as an exhibit) is ambiguous, a plaintiff’s reasonable interpretation is accepted as correct in testing the sufficiency of the complaint: “[A] general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.”  Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal App 3d 232, 239.  It is not unreasonable to interpret the ban on unauthorized “repairs, alterations or improvements” to include the installation of a water purification system.

Defendants’ demurrer to the FAC’s 2^nd cause of action for Negligence on the ground that it fails to state sufficient facts is SUSTAINED with 10 days’ leave to amend.

As presently pled the negligence claim is based on nothing more than the breach of contract allegations; “negligent” breach of contract is not a separate cause of action from breach of contract.  Conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract.  Erlich v. Menezes (1999) 21 Cal.4^th 543, 551.  The remedy for a breach of contract is generally limited to contract law, and recovery in tort is not permitted unless “‘(1) [T]he breach is accompanied by a traditional common law tort, such as fraud or conversion; (2) the means used to breach the contract are tortious, involving deceit or undue coercion or; (3) one party intentionally breaches the contract intending or knowing that such a breach will cause severe, unmitigable harm in the form of mental anguish, personal hardship, or substantial consequential damages.’”  Id. at 553-554, internal citations omitted.