Case Number: TC029227 Hearing Date: January 08, 2019 Dept: A

# 11. Jongsin Sheen v. Alyson Ahn, et al.

Case No.: TC029227

Matter on calendar for: hearing on demurrer

Tentative ruling:

I. Background

Plaintiff Jongsin Sheen contracted with defendant Key Express, Inc., to pack, transport, store, and protect plaintiff’s personal belongings and business inventory. On August 21, 2015, Key Express packed and transported Sheen’s property from Sheen’s home to its place of business. On January 30, 2017, Sheen opened the storage containers and discovered the property had been destroyed by animals and water.

Defendant Cho Thomas Chang owns Key Express. At the time the containers were opened he allegedly handed his insurance card to Sheen and stated that the damage would be covered by his insurance company. The certificate of liability insurance lists AKA Insurance Services, Inc., and defendant Lloyds of London as insurer. The contact on the card is defendant Alyson Ahn, who works for AKA Insurance Services. She first informed Sheen that the damage occurred while Sheen was delinquent on payments. When she was told this was not the case she asked Sheen to prepare an itemized list of the damage. Later, she stated Key Express only had coverage for property it was transporting, not storing. Sheen later discovered that Lloyds does not insure Key Express.

The Complaint alleges the following causes of action:

(1) Breach of contract;

(2) Promissory estoppel;

(3) Breach of the implied covenant of good faith and fair dealing;

(4) Fraud and deceit;

(5) Intentional infliction of emotional distress;

(6) Negligent infliction of emotional distress; and

(7) Unfair competition

Ahn demurs to the second, third, fourth, and fifth causes of action. Sheen opposes. The opposition was filed on December 19, 2018, but no proof of service is attached. In Reply, Ahn states that she learned of the opposition only by checking the docket. Ahn has substantively replied to the opposition.

For the reasons set forth below, the demurrer is sustained in part.

II. Standard

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; 2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.App.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P. § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) “Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

III. Analysis

a. Promissory Estoppel

The elements of promissory estoppel are: (1) a promise; (2) which the promisor should reasonably expect to induce action or forbearance; (3) of a definite and substantial character; (4) on the part of the promise; (5) induces such action or forbearance; and (6) injustice can be avoided only by enforcement of the promise. (Lange v. Tig Ins. Co. (1998) 68 Cal.App.4th 1179, 1185.) Here, Cho Chang allegedly promised that the damage was covered by his insurance and told Sheen to open a claim. (Complaint ¶ 18), but also refused to accept storage payment for February 2017, citing the damage to Sheen’s property. (Id. at ¶ 20.) Alyson Ahn allegedly stated that Sheen could submit a claim for reimbursement once Sheen itemized the damaged items and replacement costs, but Ahn then refused to open a claim, because Key Express lacked coverage for stored items. (Id. at ¶ 28.)

Sheen has outlined a scheme in which defendants promised he could submit an insurance claim, but stalled and acted to thwart the claim by cancelling Key Express’s insurance coverage. (Id. ¶ 29.) The Complaint includes agency allegations. (Id. at ¶ 14.) “[A] pleading of agency [is] an averment of ultimate fact. [Citation.]” (Skopp v. Weaver (1976) 16 Cal.3d 432, 437.) These allegations are sufficient to state a cause of action.

The demurrer to the second cause of action is overruled.

b. Fraud and deceit

The elements of fraud are (1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pled with specificity. (Id. at 645.) The analysis here is similar. The Complaint provides sufficient detail of Ahn’s involvement in allegedly delaying plaintiffs’ filing a claim by misrepresenting the claim requirements.

The demurrer to the fourth cause of action is overruled.

c. Intentional infliction of emotional distress

The elements of intentional infliction of emotional distress (“IIED”) are: 1) outrageous conduct by the defendant; 2) the 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.) The complaint sufficiently alleges a scheme that may amount to outrageous conduct.

The demurrer to the fifth cause of action is overruled.

d. Implied covenant of good faith and fair dealing

The elements of breach of implied covenant of good faith and fair dealing are: (1) existence of a contractual relationship; (2) implied duty; (3) breach; and (4) causation of damages. (Smith v. San Francisco (1990) 225 Cal.App.3d 38, 49.) Here, the opposition does not dispute the lack of a contract with Ahn. The demurrer to this cause of action is sustained as to this defendant with leave to amend.

IV. Ruling

The demurrer to the second, fourth, and fifth causes of action is overruled.

The demurrer is sustained as to the third cause of action as against defendant Ahn with 20 days’ leave to amend. Any responsive pleading is due 20 days thereafter, or 25 if served by mail.