Gong v. City of Rosemead

• Decision Date: 20 May 2014
• Docket Number: B247601
• Citation: 171 Cal.Rptr.3d 881,226 Cal.App.4th 363
• Court: California Court of Appeals Court of Appeals
• Parties: Tammy GONG et al., Plaintiffs and Appellants, v. CITY OF ROSEMEAD, Defendant and Respondent.

226 Cal.App.4th 363

171 Cal.Rptr.3d 881

Tammy GONG et al., Plaintiffs and Appellants,

v.CITY OF ROSEMEAD, Defendant and Respondent.

B247601

Court of Appeal, Second District, Division 5, California.

Filed May 20, 2014

See 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 231 et seq.

APPEAL from a judgment of the Superior Court of Los Angeles County, Abraham Khan, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC487865)

Mohammed K. Ghods, William A. Stahr, Jeremy A. Rhyne and Ruben Escobedo, Orange, for Plaintiffs and Appellants.

Burke, Williams & Sorenson, Brian A. Pierik, Camarillo, Rachel H. Richman and Keiko J. Kojima, Los Angeles, for Defendant and Respondent.

MINK, J.^*

Appellants Tammy Gong (“Gong”) and L & G Rosemead Garden LLC (“L & G”) (Gong and L & G are jointly referred to as “appellants”) seek to impose liability on the City of Rosemead (the “City”) for the alleged tortious conduct of John Tran (“Tran”), a former member of its City Council and former mayor of the City. Appellants allege that while L & G's proposed real estate project was proceeding through the City's approval process, Tran, the City's mayor, “extracted” $38,000 in “loans” from Gong, refused to repay her, and then set about a retaliatory course of conduct to prevent the approval of L & G's development project, after Gong refused to provide Tran with additional funds and continuously rejected his sexual overtures. Gong also alleged that Tran physically assaulted her and threatened to kill her. The trial court sustained, without leave to amend, the City's demurrer and granted its motion to strike the complaint, and entered a judgment of dismissal, from which appellants appeal.

We determine that, contrary to appellants' contention, their claims were subject to the claim presentation requirements and the immunity provisions of the Government Tort Claims Act. Because they failed to satisfy the claim presentment requirements of the Act with respect to their causes of action for fraud and extortion, assault and battery, and intentional infliction of emotional distress, and because the City is immune from their promissory estoppel claim, the trial court properly sustained the City's demurrer. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

We draw the facts from the allegations in the complaint, which we accept as true, except when contradicted by exhibits to the complaint or documents of which the court has taken judicial notice. (Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 210, 145 Cal.Rptr.3d 340.)

Gong is the managing partner of L & G. The City is a general law city incorporated in the County of Los Angeles. The City's policymaking and legislative authority are vested in a governing council consisting of the mayor and four other members (“City Council”). The City Council conducts business through various agencies, including the Rosemead Community Development Commission and the Rosemead Planning Commission.

In or around 2004, L & G spent approximately $780,000 to acquire certain undeveloped land commonly known as 9400–9412 Valley Boulevard in the City of Rosemead, California (“Original Parcel”). The Original Parcel was approved by the City for construction of a 7,200 square-foot office building (“Original Plan.”)

In 2005, Gong went to City Hall to draw the building permit for the Original Plan so that L & G could commence construction on the Original Parcel in accordance with the plan. Tran approached Gong in the parking lot and started a conversation with her about the bulky documents she was carrying. As a result of this casual conversation, Tran learned about the Original Plan and escorted Gong into City Hall, where he questioned her about the Plan.

Tran suggested that the City would support the Original Plan if Gong would instead construct a mixed-use building on the Original Parcel (“City Endorsed Plan”). As a result of her encounter with Tran, Gong did not draw the permit for the Original Development Plan, which she had intended to do before meeting Tran.

City officials contacted Gong at the request of Tran to schedule a meeting to discuss the City Endorsed Plan. Gong was advised that in order to proceed with the City Plan, L & G needed to acquire a lot adjoining the Original Parcel (the “Additional Parcel”).Tran, who was a licensed real estate agent, represented to Gong that he had substantial knowledge and experience with real estate transactions and Gong should trust his professional judgment. The actions of other City Council members, officers, agents, and employees of the City lulled Gong into a false sense of security that Tran was trustworthy and that she should follow Tran's instructions and directions in connection with her real estate development plans.

After meeting with Tran and other officials of the City, Gong was convinced to proceed with the City Endorsed Plan. Accordingly, applications for a preliminary design review were prepared for the City Endorsed Plan and with the City's assistance, efforts were made by L & G to acquire the Additional Parcel.

On or about April 10, 2007, the Rosemead Community Development Commission placed the City Endorsed Plan on the City's list of major mixed-use projects and gave L & G preliminary design approval. Soon thereafter, in reliance on the preliminary design approval and repeated and consistent assurances that the City would ensure speedy approval of the City Endorsed Plan, L & G agreed to acquire the Additional Parcel for approximately $700,000. Soon thereafter, L & G prepared and submitted applications for a general plan amendment, zone change, design review, and conditional use permit to proceed with construction of the City Endorsed Plan.

While L & G's applications were pending, Tran asked Gong for personal loans due to a purported family emergency and for other reasons. Ultimately, she loaned Tran a total of $38,000. Subsequently, Gong realized that Tran had no intention of repaying the loans and she ceased lending him money.

Also during this time frame, Tran approached Gong seeking to engage her in a romantic relationship. Gong informed Tran that she was not interested, but that did not deter him. When she continued to repel his overtures, Tran commenced a retaliatory course of conduct against Gong, which included causing the final decision on the City Endorsed Plan to be indefinitely tabled. Gong still refused additional financial and romantic overtures from Tran and demanded the return of her money. Tran refused to do so, and threatened to kill her if she reported him to the authorities.

On December 22, 2011, appellants filed a claim ¹ with the City (the “First Claim”), alleging the following factual basis for their claims against the City: “Description of incident/accident that caused you to make this claim: Prior City Managers & Employees made me [ ] purchase this property to build Mix Use Project. This purchase was completed in 2009. I went through all plan check and John Tran kept delaying me from continu[ing]. Now the City told me that I cannot build it anymore because City Council changed and Policy changed too.” By letter dated January 18, 2012, the City notified appellants that the claim had been rejected. On March 22, 2012, appellants filed another claim (the “Second Claim”) with the City, alleging essentially the same facts as the first claim. The City notified appellants that the Second Claim had been rejected by letter dated April 25, 2012.

Gong felt threatened and fearful for her life and safety, and so contacted the Federal Bureau of Investigations (“FBI”) for assistance. At the request of the FBI, Gong agreed to withhold filing a lawsuit against Tran until the FBI finished its investigation. On or about March 20, 2012, Tran pled guilty to federal charges of extortion and fraud.² Appellants then initiated the present lawsuit on July 6, 2012.

The complaint alleges causes of action against Tran for money lent; against the City for promissory estoppel and “pursuant to” Government Code 815.3; and for fraud and extortion, assault and battery, and intentional infliction of emotional distress against both Tran and the City.

The City demurred to the complaint on multiple grounds. Specifically, the City contended that the causes of action for fraud and extortion, assault and battery, and intentional infliction of emotional distress were barred due to appellants' failure to submit a timely claim pursuant to Government Code section 900 et seq. Furthermore, the City maintained that the third cause of action, based on Government Code section 815.3, failed because that section does not form the basis of a separate cause of action, and that it was immune from liability for promissory estoppel by reason of Government Code section 818.4.

After hearing, the trial court sustained the demurrer without leave to amend, and entered a judgment of dismissal. Appellants challenge that ruling on appeal.

DISCUSSION

On appeal from after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501, 82 Cal.Rptr.2d 368.) 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. Further we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58; Doe v. Albany Unified School Dist. (2010) 190 Cal.App.4th 668, 674, 118 Cal.Rptr.3d 507.)

We review the trial court's decision not to grant leave to amend for an abuse of discretion. (G.L. Mezzetta, Inc. v. City of American Canyon (2000) 78 Cal.App.4th 1087, 1091–1092, 93 Cal.Rptr.2d 292). Where a demurrer to the original complaint is sustained, denial of leave to amend...