Yan Sui v. Price

• Decision Date: 17 August 2011
• Docket Number: No. G044185.,G044185.
• Citation: 127 Cal.Rptr.3d 99,196 Cal.App.4th 933,2011 Daily Journal D.A.R. 9070,11 Cal. Daily Op. Serv. 7609
• Parties: YAN SUI, Plaintiff and Appellant, v. Stephen D. PRICE et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

196 Cal.App.4th 933

127 Cal.Rptr.3d 99

11 Cal. Daily Op. Serv. 7609

2011 Daily Journal D.A.R. 9070

YAN SUI, Plaintiff and Appellant,

v.Stephen D. PRICE et al., Defendants and Respondents.

No. G044185.

Court of Appeal, Fourth District, Division 3, California.

May 23, 2011.

Rehearing Denied June 20, 2011.

Certified for Partial Publication.^*

Review Denied Aug. 17, 2011.

Yan Sui, in pro. per., for Plaintiff and Appellant.

Bonne, Bridges, Mueller, O'Keefe & Nichols, Margaret M. Holm, Santa Ana, Robert A. Zermeno, Jr., Los Angeles, and Anne K. Bagley, Santa Ana, for Defendants and Respondents.

OPINION

IKOLA, J.

Plaintiff Yan Sui appeals from the judgment dismissing with prejudice his action against defendants Stephen D. Price and 2176 Pacific Homeowners Association after the court sustained without leave to amend defendants' demurrer to plaintiff's complaint. The court ruled the complaint did not state facts sufficient to constitute a cause of action and could not be fixed. We affirm.

FACTS

Accepting “as true all material allegations of the complaint” ( Bernson v. Browning–Ferris Industries (1994) 7 Cal.4th 926, 929, 30 Cal.Rptr.2d 440, 873 P.2d 613), we draw the following facts from plaintiff's complaint.^**

In late 2006, Price, the current president of the homeowners' association commenced the process to amend the association's parking rule, assisted by the law firm of Harkins. Price e-mailed the amended parking rule to all the homeowners. The amendment primarily revised two provisions. It made parking in front of a garage permissible, and prohibited disabled, inoperable vehicles. Plaintiff believed Price was exercising personal retaliation against him, but Price denied the allegation.

In about December 2006, Price informed the homeowners that the amended parking rule had been approved by majority vote and was “immediately effective.” Plaintiff voiced his opposition and asked to see the voting record. Price claimed plaintiff was ineligible to view the record because he was not a board member.

Defendants' claim that the amended parking rule was “immediately effective” was false, because the amended parking rule had not yet been recorded with the county, as required under the Davis–Stirling Act section 1355, subdivision (b), cited in Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 82–83, 14 Cal.Rptr.3d 67, 90 P.3d 1223.

In January 2007, Price walked uninvited onto plaintiff's exclusive parking space and placed a warning sticker on the back windshield of the van. Plaintiff walked out and warned Price not to touch plaintiff's property. Price replied, “I am not touching it,” and left plaintiff's parking space. The warning on the sticker stated in relevant part, “Your vehicle was in violation of the parking rule and you shall tow it away in X days. If XXX fail to do so, XXX will tow it away.”

In February 2007, plaintiff was sick and taking a nap when one of his children told him a tow truck was there to tow the van. Plaintiff went to the parking space and saw a tow truck with the logo “South Coast Towing” parked by his van. The operator said he was towing the van away at the association's request. Plaintiff noticed Price and Matteau watching from a distance, smiling, along with other neighbors.

Plaintiff's children waved protest signs, which said “get a life,” at Price and Matteau. His wife asked them to use their energy to make some babies. A police officer came to the scene apparently at Price and Matteau's behest. Plaintiff controlled his anger rather than escalate the confrontation. Price and Matteau used their position with the homeowners' association to humiliate plaintiff in front of his children for his inability to protect his personal property.

About two months later, plaintiff's wife received a bill from a collection agency for about $1,700.00. This charge impacted the credit standing of plaintiff and his wife. Their application to refinance the house was denied and the wife's application for a credit card was denied. Their credit report showed the wife had an “open collection account” from May of 2007 of about $2,000.

Recently, plaintiff insisted on seeing the voting records on the parking rule amendment. Price claimed the parking rule was not amended and that no amendment was necessary in order to tow away plaintiff's van.

Defendants intentionally engaged in wrongful and despicable conduct with conscious disregard of plaintiff's rights and with the intention to injure him. Defendants caused injury to plaintiff and his family. Defendants' willful misconduct was intended to retaliate against and to humiliate plaintiff. Defendants' wrongful acts constitute oppression, fraud, or malice under Civil Code section 1572, entitling plaintiff and his family to punitive damages.

Based on these asserted facts, plaintiff filed his complaint on March 15, 2010 against Price, the homeowners' association, and Doe defendants, alleging causes of action for fraud, breach of contract, conspiracy to defraud, trespassing, intentional infliction of emotional distress, violation of due process, conversion, libel of character, and declaratory relief. Plaintiff sought compensatory, incidental, and consequential damages of $2,000 and punitive damages of $58,000.

Defendants demurred on April 28, 2010 on grounds the causes of action were factually insufficient, vague, and as to some of plaintiff's claims, barred by the statute of limitations.

The court issued a written order sustaining the demurrer without leave to amend on grounds the complaint “has not stated facts sufficient to constitute a cause of action, and there is no way to fix the [c]omplaint.” Judgment was entered against plaintiff and his action was dismissed.

DISCUSSION

Standard of Review

“ ‘Because a demurrer both tests the legal sufficiency of the complaint and involves the trial court's discretion, an appellate court employs two separate standards of review on appeal. [Citation.] ... Appellate courts first review the complaint de novo to determine whether or not the ... complaint alleges facts sufficient to state a cause of action under any legal theory, [citation], or in other words, to determine whether or not the trial court erroneously sustained the demurrer as a matter of law.’ ” ( Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1279–1280, 84 Cal.Rptr.2d 384( Filet ).) “ ‘A demurrer tests the pleading alone, and not the evidence or the facts alleged.’ [Citation.] For that reason, we ‘assume the truth of the complaint's properly pleaded or implied factual allegations.’ [Citation.] We also ‘consider judicially noticed matters.’ ” ( E–Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315, 64 Cal.Rptr.3d 9( E–Fab ).) “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( Blank ).) We do not assume the truth of pleaded “ ‘contentions, deductions or conclusions of fact or law.’ ” ( Ibid.) “Because [defendant] was denied leave to amend we construe [the complaint's] allegations liberally ‘with a view to substantial justice between the parties.’ ” ( CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1530, 282 Cal.Rptr. 80.) “[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.” ( Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.) The plaintiff “bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law” and “must show the complaint alleges facts sufficient to establish every element of [the] cause of action.” ( Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43, 96 Cal.Rptr.2d 354.)

“ ‘Second, if a trial court sustains a demurrer without leave to amend, appellate courts determine whether or not the plaintiff could amend the complaint to state a cause of action.’ ” ( Filet, supra, 71 Cal.App.4th at p. 1280, 84 Cal.Rptr.2d 384.) “[W]e decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” ( Blank, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

Defendants contend that six of plaintiff's causes are barred by the applicable statute of limitations. Although the court did not expressly rely on that ground in its written order sustaining the demurrer,^1*** our job is to “determine whether any of the grounds raised by the defendant's demurrer justifies the court's ruling.” ( B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959, 230 Cal.Rptr. 192.) In other words, “we review the validity of the ruling and not the reasons given.” ( Ibid.) Because defendants make an overarching statute of limitations argument, we review briefly the applicable law.

“ ‘The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.’ [Citation.] ... ‘In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.’ ” ( E–Fab, supra, 153 Cal.App.4th at pp. 1315–1316, 64 Cal.Rptr.3d 9.) “In assessing whether plaintiff's claims against defendant are time-barred, two basic questions drive our analysis: (a) What statutes of limitations govern the plaintiff's claims? (b) When did the plaintiff's causes of action accrue?” ( Id. at p. 1316, 64 Cal.Rptr.3d 9.) “The applicable statute of limitations depends on ‘the nature of the cause of action, i.e., the “gravamen” of the cause...