HUIJIAO GUO VS ANTERMITE CONTROL COMPANY

Case Number: EC061381 Hearing Date: May 02, 2014 Dept: B

ATTENTION: THE COURT WILL BE DARK ON MAY 2, 2014.

TO ALL COUNSEL AND UNREPRESENTED PARTIES:
PLEASE REVIEW THE TENTATIVES BELOW, AND ADVISE THE CLERK OF THE COURT AT (818) 557-3472 WHETHER YOU SUBMIT TO THE TENTATIVE OR WISH TO SCHEDULE ANOTHER HEARING DATE. IF YOU WISH TO SCHEDULE ANOTHER HEARING DATE, PLEASE CONTACT ALL OPPOSING PARTIES AND AGREE ON A HEARING DATE OF MAY 16, MAY 23, OR MAY 30, AND INFORM THE CLERK OF THE SELECTED DATE.

Demurrer and Motion to Strike

Case Management Conference

The First Amended Complaint alleges that Plaintiff purchased real property at 127 E. Camino Real Avenue, Arcadia, under a purchase agreement with Defendants, Hwang Ming and Hwang Shiow-er. The Defendants failed to disclose a number of defects with the property.

Also, the Defendants, Antermite Control Company and Frank Chen, discovered a termite infestation during an inspection. This discovery was not reported to the Plaintiff and the Plaintiff’s signature on the termite inspection report was forged by Defendant, Robinson Luo, to ensure that the bank released the funds needed to purchase the property. The Defendants, Rachel Shui and Garden Escrow, Inc., failed to discover the forgery on the termite inspection report.

The First Amended Complaint alleges the following causes of action:
1) Breach of Contract
2) Violation of California Civil Code sections 1102 et seq.
3) Conversion
4) Unjust Enrichment
5) Fraud
6) Negligent Misrepresentation
7) Negligence
8) Breach of Fiduciary Duty
9) Intentional Infliction of Emotional Distress
10) Negligent Infliction of Emotional Distress
11) Violation of Business and Professions Code section 17200
12) Violation of Business and Professions Code section 17500

This hearing concerns the demurrer and motion to strike of Defendants, Skyway Investment Corp. and Yaotian Luo, and the demurrer and motion to strike of Defendants, Empire Realty Group, Hsuen-Yu Liu, and Hui-Ming Lu.

1. Defendants, Skyway Investment Corp. and Yaotian Luo

These Defendants were the Plaintiff’s real estate broker in the transaction.

a. Demurrer to First Cause of Action for Breach of Contract

This cause of action is directed at Defendants, Hwang Ming, Hwang Shiow-er, and Yao Tian Luo. It begins on page 16 at paragraph 112.

The Defendants argue that this cause of action does not plead whether there was a written, oral, or implied by fact contract. This is incorrect. The Plaintiff alleges in paragraph 113 that the Plaintiff entered into a written agreement with Defendant, Yao Tian Luo, under which the Defendant agreed to represent the Plaintiff as a real estate agent. Accordingly, this is not grounds for a demurrer.

The Defendant then argues that the cause of action is barred by the statute of frauds. Under CCP section 1624(a)(4), an agreement authorizing or employing an agent, broker, or any other person to purchase or sell real estate must be in writing. As noted above, the Plaintiff alleges in paragraph 113 that there was a written agreement with the Defendant Yao Tian Luo. Since the Plaintiff alleges that the agreement was in writing, there are no grounds to find that the statute of frauds bars the enforcement of the contract.

Therefore, the Court overrules the demurrer to the first cause of action.

b. Demurrer to Fifth Cause of Action for Fraud

This cause of action is directed at all the Defendants. It begins on page 21 at paragraph 140.

The Defendants argue that the Plaintiff has not pleaded this cause of action with the particularity necessary to state a fraud claim against the Defendant, Skyway Investment Co. The elements of a fraud cause of action are the following:

1) a representation, usually of fact, which is false;
2) knowledge of its falsity;
3) intent to defraud;
4) justifiable reliance upon the misrepresentation; and
5) damage resulting from that justifiable reliance
Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 72-73.

In addition, fraud pleadings against a corporation must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.

The Plaintiff alleges in paragraph 141 that the Defendants induced the Plaintiff to enter into a contract to purchase the property. In paragraph 142, subparagraph h, the Plaintiff alleges that Skyway Investment Corp. through its agent, Yao Tian Luo concealed a terminate report and told the Plaintiff that the property had no termite problem. There are no allegations identifying how, when, where, to whom, or by what means the representations were tendered. This is insufficient to plead the element of a false representation

Further, there are no particular allegations that Skyway Investment Corp. or Yao Tian Luo made the representations with the intent to defraud the Plaintiff, i.e., that the Defendants made the representations with an intent to induce the Plaintiff to act or not act. This is insufficient to plead the element that the Defendants had an intent to defraud.

Therefore, the Court sustains the demurrer to the fifth cause of action with 10 days leave to amend.

c. Demurrer to Sixth Cause of Action for Negligent Misrepresentation

The Defendants argue that the Plaintiff has not pleaded this cause of action with the particular necessary to state a claim of deceit. The elements of negligent misrepresentation are the following:

1) a misrepresentation of a past or existing material fact;
2) without reasonable grounds for believing it to be true;
3) with intent to induce another’s reliance on the fact misrepresented;
4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed; and
5) damages.
B.L.M. v. Sabo & Deitsch (1997) 55 Cal. App. 4th 823, 834.

Negligent misrepresentation is a separate and distinct tort, a species of the tort of deceit. Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 407. Since it is a tort of fraud, facts constituting each element must be alleged with particularity; the claim cannot be saved by referring to the policy favoring liberal construction of pleadings. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216. Fraud pleadings against a corporation must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.

The Plaintiff alleges in paragraph 149 that the Defendants represented that they would perform the terms of the contract. There are no allegations identifying the representations made by the moving Defendants or how, when, where, to whom, or by what means the representations were tendered. Instead, the Plaintiff states in paragraph 149 that she incorporates paragraph 142 to plead how, when, where, to whom, or by what means the representations were tendered.

This is an improper use of incorporation. A civil plaintiff may, for the sake of convenience, incorporate by reference previous portions of the pleading for informational purposes only. Cal-West Nat. Bank v. Superior Court (1986) 185 Cal. App. 3d 96, 101. Neither the Court nor the Defendants are required to search the pleadings in order to determine whether the Plaintiff has pleaded a cause of action. Instead, the essential elements of each cause of action must be pleaded within the cause of action.

Further, a review of paragraph 142, which extends across three pages, reveals no particular allegations that identify how, when, where, to whom, or by what means the representations were tendered by Skyway Investment Corp. or Yao Tian Luo. This defect was identified above in the analysis of the demurrer to the fifth cause of action for fraud. This is insufficient to plead the element of a false representation.

Therefore, the Court sustains the demurrer to the sixth cause of action with 10 days leave to amend.

d. Demurrer to Ninth Cause of Action for Intentional Infliction of Emotional Distress

The Defendants argue that there are no allegations demonstrating that the Defendants engaged in outrageous conduct. The elements of the tort of intentional infliction of emotional distress are the following:

1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;
2) the plaintiff’s suffering severe or extreme emotional distress; and
3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”
Christensen v. Superior Court (1991) 54 Cal.3d 868, 903

The Plaintiff alleges in paragraph 166 the conclusion that the Defendants engaged in outrageous conduct. There are no allegations that support this conclusion or that identify the conduct that was “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Instead, the Plaintiff states in paragraph 166 that she incorporates paragraph 142 “in support of her identification of Defendants’ conducts that were ‘so extreme as to exceed al (sic) bounds of that usually tolerated in a civilized community”.

Further, a review of paragraph 142, which extends across three pages, reveals no allegations that identify the outrageous conduct of the Defendants. Instead, there are allegations a termite report was not disclosed to the Plaintiff. This is insufficient to plead that the Defendants engaged in conduct so extreme as to exceed all bounds of that usually tolerated in a civilized community.

Therefore, the Court sustains the demurrer to the ninth cause of action. It does not appear reasonably possible to correct this by amendment because the Defendants were providing real estate agent services and the Plaintiff’s claim arises from a defect on the property and not a personal injury. Further, the Court identified this defect when it sustained the Defendants’ demurrer to this cause of action in the original Complaint.

California law imposes the burden on the Plaintiff to demonstrate the manner in which the Plaintiff can amend the pleadings to correct the defects in her Complaint. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff does not meet this burden because the Plaintiff did not offer any basis by which she could correct this claim by amendment.

Accordingly, the Court does not grant leave to amend.
e. Motion to Strike

The Defendants request the Court to strike four portions from the First Amended Complaint in which the Plaintiff seeks an award of punitive damages and attorney’s fees.

The first two requests seek to strike claims for punitive damages on pages 23 and 28. These claims for punitive damages are in the fifth cause of action for fraud and in the ninth cause of action for intentional infliction of emotional distress. Since the Court sustains the demurrers to these causes of action, the requests to strike these portions are moot.

The third request seeks to strike the claim for punitive damages from the prayer for relief on page 32. A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. Since the Court sustains the demurrers to the causes of action that support the claim for punitive damages, no portion of the pleadings supports a claim for punitive damages against the Defendants. Accordingly, the Court strikes the claim for punitive damages from the prayer for relief with 10 days leave to amend, consistent with the leave to amend the causes of action for fraud and negligent misrepresentation..

The fourth request seeks to strike the claim for attorney’s fees on page 32, which is in the prayer for relief. Under CCP section 1033.5, a prevailing party may recover attorney’s fees under a contract, statute, or law. There are no allegations that identify any contract, statute, or law that authorizes an award of attorney’s fees. In her opposition, the Plaintiff makes no effort to demonstrate that this claim is supported by any allegations in the pleadings. Accordingly, the Court strikes the request for attorney’s fees from the prayer for relief.

2. Defendants, Empire Realty Group, Hsuen-Yu Liu, and Hui-Ming Lu

These Defendants represented the seller of the property.

a. Demurrer to Second Cause of Action for Violation of Civil Code section 1102

The Defendants argue that this cause of action lacks the particularity needed to plead the statutory claim. The Plaintiff’s claim is that the Defendants violated “Civil Code sections 1102 et seq.”. This appears to be a claim that the Defendants violated some provision of Part 4, Title 4, Chapter 2, Article 1.5 “Disclosures Upon Transfer of Residential Property” of the Civil Code. To plead statutory claims, the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 619.

The Plaintiff’s claim lacks any particularity. The Plaintiff does not identify the specific code section that was violated. The Plaintiff does not plead particular facts supporting the statutory elements of the violation. This is insufficient to plead a cause of action based on a statutory claim.

The Plaintiff’s opposition offers no assistance. The Plaintiff does not identify a code section or direct the Court to allegations that support the statutory elements of any specific statute. Neither the Court nor the Defendants are required to search through code sections in an effort to determine the nature of the Plaintiff’s claim.

Further, the Plaintiff argues that “Plaintiff had pled each element of breach of contract as required”. The header for the Plaintiff’s argument is that “The Second Cause of Action for Breach of Contract has been Sufficiently Pled.” It appears that the Plaintiff may not understand that her claim is for the violation of a statute and that this is not a breach of contract claim.

Therefore, the Court sustains the demurrer to the second cause of action.

Accordingly, the Court does not grant leave to amend.
b. Demurrer to Third Cause of Action for Conversion

The Defendants argue that the Plaintiff does not plead that the Plaintiff has possession or the right to possession of the property at issue or that the Defendants took possession of the money. A claim for conversion must allege the following elements:

1) Plaintiff had the right of ownership and possession to the property converted;
2) Defendant unlawfully took the property, and
3) the value of the property converted.
Taylor v. S & M Lamp Co. (1961) 190 Cal. App. 2d 700, 705.

The Plaintiff alleges in paragraph 133 that the Plaintiff was the owner of or entitled to immediately possession the amount of $1,688,888, which was the amount paid by the Plaintiff to the sellers, which were Defendants, Hwang Yu Ming and Hwang Shiow-er, for the purchase of the property. The Plaintiff alleges in paragraph 134 that while the Defendants initially obtained the money lawfully, the conversion occurred when the Plaintiff demanded the return of the money after she discovered the conditions on the property.

These allegations do not identify a wrongful taking. The Plaintiff transferred the money to the Defendants under a contract. The Plaintiff is claiming that the failure to return the money was a wrongful; however, this is actually a breach of contract claim because it involves the parties’ duties under a contract.

Further, there are no allegations that plead how the moving Defendants, Empire Realty Group, Hsuen-Yu Liu, and Hui-Ming Lu, wrongfully took the money. This is insufficient to plead a conversion claim.

Therefore, the Court sustains the demurrer to the third cause of action. It does not appear reasonably possible to correct this by amendment because the Defendants were providing real estate agent services and did not receive the $1,688,888 purchase price that the Plaintiff paid to the sellers.

Accordingly, the Court does not grant leave to amend.
c. Demurrer to Fourth Cause of Action for Unjust Enrichment

The Defendants argue that this is not a cause of action. Under California law, there is no cause of action for unjust enrichment. Melchior v. New Line Productions, Inc. (2003) 106 Cal. App. 4th 779, 794. The phrase “unjust enrichment” does not describe a theory of recovery, but a general principle underlying various legal doctrines and remedies. Id. It is synonymous with restitution. Id. Accordingly, the fourth cause of action does plead a cause of action.

Therefore, the Court sustains the demurrer to the fourth cause of action without leave to amend.

d. Demurrer to Fifth Cause of Action for Fraud

The Defendants argue that the Plaintiff has not pleaded this cause of action with the particular necessary to state a fraud claim. The elements of a fraud cause of action are the following:

Facts constituting each element of fraud must be alleged with particularity; the claim cannot be saved by referring to the policy favoring liberal construction of pleadings. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216. Since fraud must be pleaded with particularity, the complaint must allege facts showing how, when, where, to whom, and by what means the representations were tendered. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. In addition, fraud pleadings against a corporation must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.

The Plaintiff alleges in paragraph 141 that the Defendants induced the Plaintiff to enter into a contract to purchase the property. There are no allegations identifying the representations made by the moving Defendants or how, when, where, to whom, or by what means the representations were tendered.

The Plaintiff alleges in the lengthy paragraph 142 that the Defendants had knowledge that the property was infested with termites. However, there are no particular allegations demonstrating that the Defendants, Empire Realty Group, Hsuen-Yu Liu, and Hui-Ming Lu, made any false representations to the Plaintiff with the intent to defraud the Plaintiff. This is insufficient to plead the elements of a false representation or intent to defraud.

Therefore, the Court sustain the demurrer to the fifth cause of action with 10 days leave to amend.

e. Demurrer to Sixth Cause of Action for Negligent Misrepresentation

The Defendants argue that the Plaintiff has not pleaded this cause of action with the particular necessary to state a claim of deceit. The elements of negligent misrepresentation are the following:

Further, a review of paragraph 142, which extends across three pages, reveals no particular allegations that identify how, when, where, to whom, or by what means the representations were tendered by Empire Realty Group, Hsuen-Yu Liu, and Hui-Ming Lu. This defect was identified above in the analysis of the demurrer to the fifth cause of action for fraud. This is insufficient to plead the element of a false representation.

Therefore, the Court sustains the demurrer to the sixth cause of action with 10 days leave to amend.

f. Demurrer to Ninth Cause of Action for Intentional Infliction of Emotional Distress

Further, a review of paragraph 142, which extends across three pages, reveals no allegations that identify the outrageous conduct of the Defendants. Instead, the allegations a termite report that was not disclosed to the Plaintiff. This is insufficient to plead that the Defendants engaged in conduct so extreme as to exceed all bounds of that usually tolerated in a civilized community.

Accordingly, the Court does not grant leave to amend.

g. Demurrer to Tenth Cause of Action for Negligent Infliction of Emotional Distress

The Defendants argue that there are no allegations identifying the conduct that negligently caused emotional distress. The tenth cause of action for negligent infliction of emotional distress (“NIED”) is not an independent tort in California, but is regarded simply as the tort of negligence. Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1072. Whether plaintiffs can recover damages for NIED is dependent upon traditional tort analysis, and the elements of duty, breach of duty, causation and damages must exist to support the cause of action. Burgess, 2 Cal. 4th at 1072.

NIED claims may fall into two: “bystander” claims and “direct victim” claims. “Bystander” claims involve emotional distress caused by witnessing an injury to another and are limited to close family members. Thing v. La Chusa (1989) 48 Cal. 3d 644, 667-668. These claims arise when the defendant has no duty of care to the plaintiff. Christensen v. Superior Court (1991) 54 Cal.3d 868, 882, 884. The plaintiff must be:

1) closely related to the injury victim;
2) present at the scene of the injury-producing event at the time it occurs and aware, at that time, that it is causing injury to the victim; and
3) suffers emotional distress beyond that which would be anticipated in a disinterested witness as a result of the awareness of injury.
Thing, 48 Cal.3d at 647.

“Direct victim” claims arise in cases where the defendant had a duty to the plaintiff that arises from a preexisting relationship and the duty is breached. Burgess, 2 Cal. 4th at 1074.

The Plaintiff alleges in paragraph 169 that the Defendants knew or should have known that the conduct “described herein” would cause emotional distress. There are no allegations identifying the conduct.

It appears that this is a “direct victim” claim because there are no allegations that an individual closely related to the Plaintiff was injured. Since this is a direct victim claim, there must be a preexisting relationship in which there is a tort duty of care regarding the Plaintiff. The Plaintiff does not allege any facts to demonstrate that the Plaintiff had a preexisting relationship with Defendants, Empire Realty Group, Hsuen-Yu Liu, and Hui-Ming Lu, in which there was a tort duty of care.

The Plaintiff’s opposition papers are not useful because they consist of citations to the elements and the conclusion that the Plaintiff has pleaded the elements of the cause of action. There is no analysis of the pleadings and no argument that directs the Court to the specific paragraphs that plead the necessary elements.

Therefore, the Court sustain the demurrer to the tenth cause of action. It does not appear reasonably possible to correct this by amendment because the relationship between the Plaintiff was a contractual business relationship in which there would not be a tort duty of care regarding her emotional state.

Accordingly, the Court does not grant leave to amend.

h. Demurrer to Eleventh Cause of Action for Violation of Business and Professions Code section 17200

The Defendants argue that this cause of action fails to plead sufficient facts. The Plaintiff’s eleventh cause of action is brought for the violation of Business and Professions Section 17200, which defines unfair competition to be any unlawful, unfair, or fraudulent business practice. In order to plead a claim under Business and Professions Code section 17200, there must be allegations showing an unlawful, unfair, or fraudulent business act or practice. Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal. App. 4th 659, 676-677. This includes anything that can properly be called a business practice and that at the same time is forbidden by law. Id. Further, to plead this statutory claim, the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 619.

Section 17200 “borrows” violations of other laws and treats them as “unlawful” practices independently actionable under the unfair competition law. Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal. App. 4th 700, 718, 113 Cal. Rptr. 2d 399 (2001). When a plaintiff cannot state a claim under the “borrowed” law, the plaintiff cannot state a claim under unfair competition law either.

The Plaintiff alleges in paragraph 174 that the Defendants engaged in unlawful, fraudulent, or unfair business practices by concealing information and making untrue statements regarding the property. There are no particular allegations regarding the moving Defendants, Empire Realty Group, Hsuen-Yu Liu, and Hui-Ming Lu, and no particular allegations that identify their specific business conduct that was unlawful, unfair, or fraudulent.

Further, California law holds that an action under Business and Professions Code section 17200 is not an all-purpose substitute for a tort or contract action. Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal. App. 4th 659, 676-677. A review of the Plaintiff’s complaint reveals that the eleventh cause of action is based on alleged intentional misrepresentations and fraudulent concealment that deceived her into purchasing the house. These allegations support a fraud claim and not an unfair business practices claim under section 17200.

Further, the Plaintiff’s opposition papers reveal that she is using this cause of action as an all purpose substitute. The Plaintiff argues on page 7, at lines 20 to 25, that the facts supporting her claim are in paragraphs 94, 96, 98, 99, 101, and 142 of her pleadings. These are allegations that indicate that the Defendants engaged in fraudulent conduct by concealing a termite report. The Plaintiff is not bringing a claim for violation of section 17200; instead, she is trying to recast her fraud claim as a claim for the violation of section 17200.

Therefore, the Court sustains the demurrer to the eleventh cause of action. It does not appear reasonably possible to correct this by amendment because the Plaintiff cannot plead a fraud claim as a violation of section 17200.

Accordingly, the Court does not grant leave to amend.

i. Demurrer to Twelfth Cause of Action for Violation of Business and Professions Code section 17500

The Defendants argue that the Plaintiff did not allege that they made any public advertisement that caused her injury. The Plaintiff’s twelfth cause of action seeks relief under Business and Professions Code section 17500 et seq., which is known as the False Advertising Law. In order to state a false advertising claim, a plaintiff must allege the following:

1) the statements in the advertising are untrue or misleading, and
2) the defendants knew, or by the exercise of reasonable care should have known, that the statements were untrue or misleading. Cal
Bus. and Prof. Code section 17500; see also National Council Against Health Fraud, Inc. v. King Bio Pharms., Inc. (2003) 107 Cal. App. 4th 1336, 1342.

Section 17500 applies to the dissemination in any advertising media of any “statement” concerning real or personal property offered for sale. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 210. Private plaintiffs are authorized to bring civil actions to enjoin and seek restitution from false advertisers under California Business and Professions Code section 17535.

The Plaintiff alleges in paragraph 180 that the Defendants made false statements about the property to the Plaintiff. There are no allegations that the Defendants made statements in the advertising media that were untrue or misleading. Instead, the allegations concern statements made by the Defendants to the Plaintiff before the parties entered into a contract. There is no advertising involved.

Therefore, the Court sustains the demurrer to the twelfth cause of action. It does not appear reasonably possible to correct this by amendment because the Plaintiff cannot plead a claim based on alleged false statements made during contract negotiations as a false advertisement claim under section 17500.

Accordingly, the Court does not grant leave to amend.

13. Motion to Strike

The Defendants request the Court to strike five portions from the Complaint.

First, the Defendants request that the Court strike the request for attorney’s fees in the prayer for relief on page 32. Under CCP section 1033.5, a prevailing party may recover attorney’s fees under a contract, statute, or law. There are no allegations that identify any contract, statute, or law that authorizes an award of attorney’s fees. Accordingly, the Court strikes the request for attorney’s fees from the prayer for relief.

The second, third, and fourth requests concern the allegations supporting a claim for punitive damages in paragraphs 135, 147, and 167. These paragraphs are in the third cause of action for conversion, the fifth cause of action for fraud, and the ninth cause of action for intentional infliction of emotional distress. Since the Court sustains the demurrers to each of these causes of action, the requests to strike these portions are moot.

The fifth request concerns the claim for punitive damages in the prayer for relief. A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. Since the Court sustains the demurrers to the causes of action that support the claim for punitive damages, no portion of the pleadings supports a claim for punitive damages against the Defendants. Accordingly, the Court strikes the claim for punitive damages from the prayer for relief.

TENTATIVE RULING:
1. Defendants, Skyway Investment Corp. and Yaotian Luo
OVERRULE demurrer to first cause of action.
SUSTAIN demurrers to fifth and sixth causes of action with ten days leave to amend.
Sustain demurrers to the ninth cause of action without leave to amend.
GRANT motion to strike.

2. Defendants, Empire Realty Group, Hsuen-Yu Liu, and Hui-Ming Lu
SUSTAIN demurrers to second, third, fourth, ninth, tenth, eleventh, and twelfth causes of action without leave to amend.
Sustain demurrers to fifth and sixth causes of action with 10 days leave to amend.
GRANT motion to strike.

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HUIJIAO GUO VS ANTERMITE CONTROL COMPANY

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