Lim v. City of >Los
Angeles





















Filed 4/2/13 Lim v. City of Los Angeles CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.



IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT




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KI HYUN LIM, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

B238219 (Los Angeles County Super. Ct. No. BC 437427)

APPEAL from
a judgment of the Superior Court for the County
of Los
Angeles. Barbara M.
Scheper, Judge. Affirmed.



Reyes &
Barsoum and Jorge Reyes for Plaintiff and Appellant.



Carmen A. Trutanich, City Attorney, and Brian I. Cheng,
Deputy City Attorney, for Defendants and Respondents City of Los Angeles,
Douglas Guthrie and Roberto Aldape.





____________________________________

>SUMMARY

Plaintiff Ki Hyun Lim made
renovations to a “four-plex” he and his sister owned, but did not comply with
building codes or obtain a permit. When
he received notices of violation from the housing authorities, he paid a Los
Angeles city employee, defendant Eun Chavis, $11,000
to “resolve the subject property’s code violations in a safe and legal
way.” He continued to receive citations
and then hired a contractor recommended by Chavis, but the contractor did not
do the work. Plaintiff filed a claim for
damages under the Government Claims Act, the claim was denied, and plaintiff
then sued the City of Los Angeles
(hereafter the city), Chavis and others.

The city
demurred to plaintiff’s second amended complaint. The trial court sustained the city’s demurrer
without leave to amend and dismissed the complaint, observing among other
things that plaintiff’s government claim was not timely filed. We affirm the href="http://www.fearnotlaw.com/">judgment of dismissal.

>FACTS

Plaintiff
alleged the following facts relevant to this appeal.

Plaintiff and his sister acquired
property in the city, a “four-plex,” in 2003.
They converted it into a boarding house, but did not comply with the
city’s building code.

Plaintiff’s mother met defendant
Chavis in December 2006. Chavis held
herself out as a powerful employee of the Los Angeles Housing Department
(hereafter housing department or LAHD) who could help plaintiff’s mother if she
ever encountered problems in dealing with the housing department.

In January 2007, plaintiff received
a letter from the housing department saying the property was “not up to code
due to code violations and that Plaintiff had made illegal, unpermitted
modifications.” Plaintiff’s mother took
the letter to Chavis and asked what plaintiff should do. Chavis said the violations needed to be
fixed, and she could solve the problem if plaintiff “paid funds [to] EUN
CHAVIS, who on behalf of the LAHD would collect the funds to correct the
citations, pay for fines and penalties assessed against the Subject
Property.” Chavis represented she would
help plaintiff “resolve the housing code violations according [to] the
applicable code.” Chavis also threatened
plaintiff’s mother by telling her that plaintiff could go to jail or lose the
property if the citations were not corrected.
Plaintiff’s mother “agreed to pay to the LAHD and issued a check to EUN
CHAVIS [for] $5,000, on behalf of the LAHD.”

“During the course of Chavis’[s]
assistance,” plaintiff did not want to continue paying Chavis because he kept
receiving citations, but Chavis “threaten[ed] to make the LAHD code violation
compliance process even more difficult” if plaintiff stopped paying. Chavis said plaintiff would be jailed and the
property “would be taken away by LAHD if [plaintiff] stopped paying CHAVIS to
complete the code violation compliance process.” In all, plaintiff paid Chavis $11,000, some
of which was paid, at Chavis’s request, to her husband. “The LAHD code violations/citations were
never ‘corrected’ and the Property continued to accrue violations.”

In early 2008, Chavis told
plaintiff the laws had changed and she “could no longer correct the
citations.” She told plaintiff that, to
stem the tide of violation letters, plaintiff would have to retain an
experienced contractor “that [Chavis] trusted and chose to help Plaintiff” in
order to obtain permits and remedy the code violations. Chavis represented that Cheun Won Seung was
an experienced, licensed contractor; so, in April 2008, plaintiff entered into
a construction contract with Cheun. Work
on the project took longer than promised and ended entirely in August
2008. Then, plaintiff found out Cheun
was not licensed and, in October 2008, hired an attorney to demand that Cheun
finish the project. Plaintiff asked
Chavis to help convince Cheun to return to the project, but Chavis said she did
not know Cheun that well, and plaintiff should have done his own research
before choosing him as a contractor.
Plaintiff then reported Chavis to the police.

Plaintiff was unable to complete
reconstruction of the property, lost the rental income, could not pay the
mortgage, and ultimately lost the property in a foreclosure sale, all because
of Chavis’s actions and inactions “in the course and scope of her official
capacity on behalf of the LAHD, and employment with the [city].”

Plaintiff (along with his sister
and his mother) filed a claim for damages with the city on September 30, 2009. The claim stated: “LAHD employee lead [sic]us to believe that the property compliance citations can be
corrected for a fee. Also by saying that
the owner can go to jail or lose the property if citations are not corrected
which forced us to do a construction through her. Construction never got finished and her
contractor ran away with the fund[s].”
The damage or injury occurred on “November 24, 2008 and July 29, 2009[,]” and the damage occurred “at the
property . . . .”
The act that caused the injury was “[u]sing the job title to commit an
illegal act of collection [of] fees.
Using the job title to force the property owner to start a construction
a contractor she hired causing damages to person and property.” The city employee causing the injury was “Los
Angeles Housing Department Employee—Eun Chavis.” Plaintiff claimed damages to his credit
rating ($250,000), loss of construction fees ($150,000), loss of the property
($500,000), uncollected rents ($6,000 per month), and “fees paid to LAHD
employee for citation corrections” ($11,000).

The city denied plaintiff’s claim
by letter dated November 12, 2009.
Plaintiff filed this lawsuit on May 12, 2010.

In addition to the facts recited
above, plaintiff alleged that “within 6 months after the accrual of the causes
of action in this matter on or about July 29, 2009, Plaintiff timely filed a
claim with [the city] on September 30, 2009.”
As to the city, plaintiff alleged claims for negligence, violation of
Civil Code section 52.1 (interference with legal rights by threats,
intimidation or coercion), negligent supervision and training, negligent hiring
and retention, and negligent infliction of emotional distress.

The trial court sustained the city’s
demurrer to the second amended complaint without leave to amend, and ordered
dismissal of the complaint. This appeal
followed.

>DISCUSSION

A demurrer tests the legal
sufficiency of the complaint. We review
the complaint de novo to determine whether it alleges facts sufficient to state
a cause of action. For purposes of
review, we accept as true all material facts alleged in the complaint, but not
contentions, deductions or conclusions of fact or law. We also consider matters that may be
judicially noticed. (>Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) When a demurrer is sustained
without leave to amend, “we 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.” (Ibid.) Plaintiff has the burden to show a reasonable
possibility the complaint can be amended to state a cause of action. (Ibid.)

The trial court did not err in
sustaining defendants’ demurrer without leave to amend because plaintiff failed
to file a timely claim with the city.

In his appellate brief, plaintiff
does not recite the facts alleged in his complaint, but tells us only
this: that on November 24, 2008, he
“suffered damage to his real property,” and filed a claim under the Government
Claims Act within one year (on September 30, 2009); and on July 29, 2009, he
“suffered damage to his person, personal property and/or real property” and
filed a claim (the same claim) within six months. Plaintiff argues that these allegations are
sufficient for pleading purposes because the truth of the allegations is
assumed.

Plaintiff is mistaken. Courts do not assume the truth of conclusory
allegations of fact or law, much less conclusory allegations that are
contradicted by the facts alleged in the complaint. No facts are alleged to show that plaintiff’s
claim accrued on July 29, 2009 (or on November 24, 2008). On the contrary, the facts plaintiff alleged
show his claim had accrued by early 2008, when Chavis told him she “could no
longer correct the citations”—or, at the very latest, by August 2008, when the
unlicensed contractor Chavis allegedly chose stopped work entirely on
plaintiff’s property. The complaint
alleges no improper action or omission of any kind by Chavis after she “chose”
the contractor, with whom plaintiff entered a construction contract in April
2008. Consequently, a government claim
filed on September 30, 2009, more than a year after Chavis’s conduct occurred,
was untimely. (See Gov. Code, § 911.2,
subd. (a) [claim relating to a cause of action for injury to person or to
personal property must be presented “not later than six months after the
accrual of the cause of action”; a claim relating to any other cause of action
must be presented “not later than one year after the accrual of the cause of
action”].) Nor did plaintiff apply to
file a late claim or petition the court for relief. (Gov. Code, §§ 911.4, 946.6.) Accordingly, any claim plaintiff may have had
is barred for failure to present a timely claim to the city.

Plaintiff also argues the trial
court abused its discretion by not allowing plaintiff to amend the complaint
“to plead the facts necessary to state a timely compliance with the government
tort claims requirement.” But plaintiff
does not suggest what facts he would allege if he were granted leave to amend,
and it is his burden to do so. (>Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)


>DISPOSITION

The judgment is affirmed.
The City of Los Angeles shall recover costs on appeal.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS







GRIMES,
J.



WE CONCUR:







BIGELOW, P. J.







RUBIN, J.