Defendant Misook Kang’s demurrer to the First Amended Complaint (“FAC”) is overruled.  Defendant Kang is ordered to file an answer to the FAC within 15 days and serve it pursuant to the Code of Civil Procedure.

To the extent Defendant refers to alleged facts outside of the FAC, the court cannot consider such alleged facts on the demurrer.

The demurrer to the “causes of action” for trespass to personal property and conversion are overruled.  Although the title of the FAC lists trespass to personal property and conversion, no such causes of action actually appear within the First Amended Complaint.  The court orders stricken “trespass to personal property” and “conversion” from the title of the FAC.

Third Cause of Action for False Imprisonment

The demurrer to the third cause of action of the FAC for false imprisonment of the First Amended Complaint (“FAC”) is overruled as moot, as that cause of action has been dismissed by Plaintiff Lee.

Fourth Cause of Action for Trespass

The elements of a civil trespass claim are (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.  (CACI No. 2000.)  The law assumes harm in the case of tangible intrusions and, thus, real property owners are entitled to nominal damages if actual damages are not sought or proven. (See Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406.)  Here, Plaintiff Dong Ho Shin DBA California Premier Culinary Schools has sufficiently alleged a claim for trespass.  (FAC, ¶¶ 29-33.)  Accordingly, the demurrer as to the fourth cause of action is overruled.

Fifth Cause of Action for Intentional Infliction of Emotional Distress

The essential elements of a cause of action for intentional infliction of emotional distress include:

(1)  Extreme and outrageous conduct by the defendant;

(2)  With the intention of causing, or reckless disregard of the probability of causing, emotional distress;

(3)  Resulting in severe or extreme emotional distress;

(4)  Actually caused by the defendant’s outrageous conduct.


(Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051; Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty USA (2005) 129 Cal.App.4th 1228, 1259.)

To properly plead “extreme and outrageous conduct,” the alleged conduct must (1) be pled with reasonable particularity and (2) be so extreme as to exceed all bounds of that usually tolerated in a civilized community and which would – to the average member of the community – arouse resentment against the actor.  (Hughes v. Pair, supra, 46 Cal.4th at p. 1051; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1516; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528.) Here, Plaintiff Shin alleges that Defendant Kang attacked Lee, verbally intimidated him and Hyang Jin Lee, damaged his personal property, and trespassed.  Plaintiff has sufficiently alleged a claim for intentional infliction of emotional distress.  (FAC, ¶¶ 35-37.)  Accordingly, the demurrer to the fifth cause of action is overruled.

Sixth through Tenth Causes of Action for Defamation

As to the sixth, seventh, eighth, ninth, and tenth causes of action for defamation, Defendant’s arguments have no merit.  Defendant first argues that the statements were privileged under Civil Code section 47, subdivision (c), and McGrory v. Applied Signal Technology Inc. (2013) 212 Cal.App.4th 1510.  Defendant’s authority is inapplicable to this case.  Kang is not alleged to be an employee at the time of the incidents.  She is alleged to have been a past employee.  Plaintiff Lee was never alleged to be an employee.  Second, the statements were made to church members, who are not alleged to have had anything to do with the employment.

Defendant next argues that the statements are protected under the ministerial exception protecting religious organizations.  But that protection is only afforded to statements and decisions made by religious organizations.  (Gunn v. Mariners Church (2008) 167 Cal.App.4th 206, 214-215.) Here, they were made by Defendant Kang, who is not a religious organization.

Defendant argues that as a pastor, Plaintiff Shin is a public figure. There are no allegations to support this contention.  (See Greiner v. Taylor (2015) 234 Cal.App.4th 471, 485 [“To hold that a member of the clergy can become a limited purpose public figure on any issue relating to morality simply because of his or her profession would be equivalent to holding that being a member of the clergy makes one an all purpose public figure. Such an interpretation of the limited purpose public figure doctrine is too broad.”].)

Finally, Plaintiff argues that the statements were mere opinions. Statements of actual, inappropriate conduct such as touching another’s breasts, or having an illicit sexual relationship are hardly opinions. Contrary to the assertions of Defendant, the statements were intrinsically defamatory and insulting, as sexual harassment and assault are crimes, the accusation of which is intrinsically defamatory and libel per se (Barnes-Hind v. Superior Court (1986) 181 Cal.App.3d 377.) Accordingly, the demurrer as to the sixth through tenth causes of action is overruled.

Eleventh Cause of Action for Nuisance

The elements of private nuisance are (1) interference with the use and enjoyment of property; (2) the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial; (3) the interference with the protected interest must be unreasonable.  (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262.) As to the Eleventh Cause of Action for Nuisance, while there is no requirement that there be more than one “happening” in order to state a cause of action for Nuisance (Civ. Code, § 3479), the issue of whether the interference with the enjoyment property was substantial is a question of fact not resolved on demurrer (San Diego Gas & Elec. Co. v. Superior Court (1996) 13 Cal.4th 893, 938).  Accordingly, the demurrer as to the eleventh cause of action is overruled.