Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2009-00331800 Charles Margines, Judge.
Toung Kim, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Toung Kim entered into a residential rental agreement with Joon Hee Yang in September of 2007. Disagreements arose soon thereafter concerning the condition of the property and Yang’s responsibility to keep the property habitable. In October of 2009, Yang served a three-day notice to pay rent or quit the premises on Kim. Thereafter, Yang filed an unlawful detainer action and obtained a summary judgment on November 25, 2009.
On December 14, Kim filed for bankruptcy, but the case was dismissed on January 11, 2010. While the case was pending in bankruptcy court, on December 16, Yang, with the assistance of Deputy Sheriffs David Mendoza and John Literal, evicted Kim and his family.
Kim sued his landlord and the deputy sheriffs who assisted in this eviction. His complaint, filed in propria persona, alleged five causes of action: unlawful eviction, constructive eviction, intentional infliction of severe emotional distress, declaratory relief (declaring the eviction unlawful) and preliminary injunction (requesting re-possession of the property).
All three defendants demurred. Kim did not appear at the hearing on the demurrer, but filed opposition and contacted counsel for the deputy sheriffs indicating he was not opposing the demurrer on their behalf. He did, however oppose the demurrer on behalf of Yang on the second and fourth causes of action: constructive eviction and the request for declaratory relief.
The court sustained the demurrer on all counts, without leave to amend. Kim appeals from this ruling, complaining that the court had no grounds for sustaining the demurrer and failed to state its grounds for denying leave to amend as required by Code of Civil Procedure section 472(c).
DISCUSSION
We have very little record in this case. But what we have includes the order of the court. It said:
“All of the causes of action in the complaint arise out of plaintiff’s being evicted from his home by defendant Mendoza, a deputy sheriff, at the behest of plaintiff’s landlord, defendant Yang. The documents of which the court has taken notice conclusively demonstrate that the automatic stay triggered by plaintiff’s bankruptcy filing did not operate to stay the eviction (11 U.S.C. § 362(b)(22); [Code Civ. Proc., ] § 715.050; Lee v. Baca (1999) 73 Cal.App.4th 1116, 1119.) Plaintiff argues that defendant Yang did not attach the 2nd cause of action. However, Mr. Yang did so; his demurrer clearly challenges all causes of action. The court notes that plaintiff did not file an opposition to defendant Mendoza’s demurrer. Even if the court were not to take that as a concession that the demurrer is well-taken, the result herein would be the same.
“Although this is plaintiff’s first attempt to plead a case against these defendants, it does not appear that he can successfully do so were he given another opportunity. Consequently, the demurrer must be, and is, sustained without leave to amend.”
This forecloses both of Kim’s arguments. Clearly the court did state why it was not granting leave to amend, and equally clearly, there were solid grounds for sustaining the demurrer.
Both state and federal law provide for an exception for cases such as this one to the usually automatic stay imposed on actions during bankruptcy proceedings involving one of the parties. Federal law provides that no stay shall apply to “the continuation of any eviction, unlawful detainer action, or similar proceeding by a lessor against a debtor involving residential property in which the debtor resides as a tenant under a lease or rental agreement and with respect to which the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor.” (11 U.S.C. § 362(b)(22).) Similarly, Code of Civil Procedure section 715.050 provides, “Except with respect to enforcement of a judgment for money, a writ of possession issued pursuant to a judgment for possession in an unlawful detainer action shall be enforced pursuant to this chapter without delay, notwithstanding receipt of notice of the filing by the defendant of a bankruptcy proceeding.”
Those are the facts of this case. Yang had obtained a judgment against Kim before the bankruptcy filing. The stay was therefore ineffective to halt the proceedings of which Kim complained. (See Lee v. Baca, supra, 73 Cal.App.4th at p. 1119 et seq.)
The trial court explained its conclusion that leave to amend would be futile because the complaint could not be amended successfully. Having examined the only causes of action on which Kim objected to the sustaining of the demurrer, we find ourselves in agreement with the trial court: no cause of action for constructive eviction could be made out here, and no declaratory relief could ever be obtained. The trial court acted well within its discretion in so concluding.
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.