TENTATIVE RULINGS FOR DEPARTMENT C-8

 

Honorable Kirk H. Nakamura

 

September 2, 2010

 

 

Law and Motion is heard in Department C-8 on Thursdays at 2:00 p.m. Tentative rulings will be posted on all law and motion matters. Please read these rules carefully. Do not call the Department unless ALL parties submit on tentative ruling.

 

The Court will endeavor to post tentative rulings by 5:00 P.M. on the preceding Wednesday. However, ongoing proceedings, such as jury trials, may prevent postings by that time. DO NOT CALL THE DEPARTMENT FOR TENTATIVE RULINGS IF NONE ARE POSTED. Be assured that the court will be diligently working on posting the rulings as soon as possible.

 

The Court will not entertain a request for continuance once the ruling has been posted. If ALL counsel intend to submit on the tentative and do not wish oral argument, please advise the courtroom assistant by calling (657) 622-5208. If all sides submit on the tentative ruling and so advise the clerk, the tentative ruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling and prepare an Order for the court’s signature, if appropriate under CRC 3.1312.

 

 

 

 

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Tentative

 

 

 

1

Acker v. Island Lagoon Homeowners Association

Motion for Attorney’s Fees: GRANT

 

 

Plaintiffs are the prevailing parties. Plaintiffs may recover the attorney fees and costs, except for miscellaneous expenses.  These deductions include fax expenses, local travel, courier and messenger charges and fees for legal research, computer or other, are not recoverable. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 776.  Expenses of copying documents, Federal Express and postage charges, and telecopy/fax charges are not recoverable.  Ripley v. Pappadopoulos (1994)  23 Cal.App.4th 1616, 1627 -1628.  The court-ordered mediation fees are recoverable.

 

Pursuant to Civil Code section 1354 (c), Plaintiffs are entitled to attorney fees. The attorney fees are reasonable and necessary. There is no basis to apportion the fees.  Plaintiffs are entitled to recovery expert fees as the total judgment with attorney fees exceeded the statutory offer.

 

Moving party to give notice

 

2

Mejia v. Rodriguez

 Motion for Reclassification: DENY

 

No papers have been submitted by any party allowing the court to determine whether reclassification is appropriate. Plaintiff’s CMC statement indicates that one plaintiff incurred over $30,000 in medical expenses.

 

Plaintiff to give notice of ruling.

3

Anderson v. House of Imports, Inc.

The Demurrer to First Amended Complaint: OVERRULE; 20 days to answer.

 

There is nothing uncertain about the use of the term “appended” or “service contracts” in the FA¢. ∏ has set forth facts that express and implied warranties exist and nothing from the face of the ¢ or the purchase agreement attached thereto refute that fact.

 

Plaintiff to give notice of ruling.

4

Clarendon America Ins. Co. v. McKasson Klein & Holmes

Motion to Compel Further Responses to Request for Production of Documents: GRANT

 

The motion to compel a further response to the request for production of documents is GRANTED.  Within 20 days, Plaintiff is to provide an amended privilege log that identifies the documents, the sender and recipient, and the date of the documents with sufficient specificity to enable the court to rule on claims of privilege.  Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 292. 

 

Defendant to give notice.

 

5

Fuller v. Rumbi-LCW LLC

Motion to be Relieved as Counsel: GRANT

 

Defense counsel is ordered to add the information concerning the upcoming CMC Hearing set for October 8, 2010 to the Order before serving the signed Order on the defendants.

6

Namoury v. Grazer

Motion to Compel Deposition: GRANT

 

Plaintiff’s deposition is compelled upon 10 days notice. Defendant is to provide at least 3 days when she is available for deposition immediately. Otherwise, plaintiff may set deposition without further discussion upon 10 days notice.

 

Request for Sanctions: DENIED without prejudice

The court notes that plaintiff is self represented. Should the plaintiff again fail to attend the court ordered deposition, the court will impose the attorneys fees incurred by defendant in this motion as additional sanctions.

 

Moving party to give notice.

 

7

Chambi v. Judicial Review Committee of Western Med. Ctr.

Motion to Dismiss/Status Conference: SET for 12/2/10

8

Zeffer v. McGuire

Demurrer/Motion to Strike/Joinder: See below

 

Defendants’ Beneficial Services, Inc.’s, Lori Ann McGuire’s and Rhonda Rasmussen’s Demurrer to the First Amended Complaint: SUSTAINED with 15 days leave to amend as to the First Cause of Action for Fraud and the Second Cause of Action for Negligent Misrepresentation; OVERRULED as to the Third Cause of Action for Breach of Fiduciary Duty and the Fourth Cause of Action for Violation of Civil Code §1088. 

 

Defendant Lee Ann Canaday’s Joinder in the Demurrer: DENIED in that it was not timely filed or served. 

 

The First Cause of Action for Fraud

 

In order to state a cause of action for fraud (intentional misrepresentation), plaintiff must set forth facts which support the following: (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage.  Civil Code §’s 1709 and 1710. 

 

Fraud must be specifically pled because allegations of fraud involve a serious attack on a defendant’s character.  Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.  Pleadings for fraud must allege “facts which show how, when, where, to whom and by what means the representations were tendered.” Stansfield v. Starkey, (1990) 220 Cal. App. 3d 59, 73; Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645. 

 

Civil Code §1710.2 bars any cause of action against the owner of real property, his or her agent, or any agent of a transferee of real property for the failure to disclose to the transferee the occurrence of an occupant’s death on the real property or the matter of death where the death has occurred more than three years prior to the date the transferee offers to purchase the property. 

 

It is not clear from the pleadings that the Seller’s husband died more than three years prior to the transfer, but the parties do not address this issue.

 

Civil Code §1710.2(d) provides an exception to the above bar when an intentional misrepresentation is made in response to a direct inquiry from a transferee or a prospective transferee, which is exactly what plaintiffs allege happened here.  Plaintiffs allege that in November of 2007 plaintiffs asked McGuire whether the seller’s (Cheryl Cashman’s) husband had died on the property, and McGuire emphatically replied “Absolutely not!”  Id., paragraph 20. 

 

Plaintiffs allege that the defendants McGuire and Rasmussen (agents of Beneficial Services and Canaday) intentionally misrepresented, concealed, and failed to disclose material information about the size of the property and McGuire falsely represented that the Seller’s husband had not died on the property.  FAC, paragraphs 15 – 20 and 39.  Plaintiffs allege that the “misrepresentations/concealments” occurred: 

 

(1)  In the MLS Listings since 2006 (Id., paragraph 15), and specifically in late 2007 (Id., paragraph 16);

(2)  In a Marketing Brochure obtained by either Canaday or McGuire and Beneficial Services which was given to plaintiffs by Rasmussen when she was showing them the property (Id., paragraph 17);

(3)  Orally by Rasmussen and McGuire when Rasmussen was showing plaintiffs the property (Id., paragraphs 17, 18, and 19); and

(4)  By McGuire (as to the death of the Seller’s husband) in November of 2007 (Id., paragraph 20). 

 

The above allegations are sufficient as to “how, by what means, and to whom” the representations/concealments were tendered:  orally (statements by the defendants) and in writing (the MLS Listings and the Marketing Brochure). 

 

However, except as to the allegation concerning the denial by McGuire that the Seller’s husband had died on the property (November of 2007), the allegations are not sufficient to show “when” the misrepresentations/concealments occurred.  All that is clear is that the misrepresentations/concealments occurred sometime between July of 2007, which was when plaintiffs allege that they first contacted Rasmussen (Id., paragraph 12), and December 3, 2007, which was when the plaintiffs allege they entered into the purchase agreement (Id., paragraph 22). 

 

The “where” is clear as to the MLS Listings and the Marketing Brochure.  The “location” where the MLS listing was made can be inferred to be the location where the information was input into the MLS List, which can be inferred to be at the offices of Beneficial Services.  The Marketing Brochure was given to plaintiffs by Rasmussen during a showing of the property (Id., paragraph 17). 

 

The “where” is not clear as to all of the alleged oral misrepresentations and concealments.  Some of the oral misrepresentations were allegedly made at the property:  one of the oral misrepresentations made by Rasmussen when showing the property to plaintiffs (Id., paragraph 17), and others were made by Rasmussen, and on one occasion by McGuire, also at the property (Id., paragraph 19).  However, where the parties were when Rasmussen told plaintiffs that the property had 400 square feet in additional space (Id., paragraph 18) is not specified, and where the parties were when McGuire allegedly denied that the Seller’s husband had died on the property (Id., paragraph 20) is also not specified.

 

Plaintiffs do not allege sufficient facts in support of “knowledge of falsity”.  Plaintiffs allege on information and belief that Rasmussen and McGuire had knowledge of the true facts, but in the same paragraph plaintiffs also allege on information and belief that Rasmussen and McGuire did not conduct any reasonable inquiries to determine the truth.  Id., paragraph 33.  These are mutually exclusive “facts”:  either the defendants had knowledge of the facts or they did not make the inquiries necessary to obtain knowledge of the facts.

 

Plaintiffs have not alleged sufficient facts to show “intent to defraud”.  Plaintiffs allege that the defendants had an intent to defraud based on a desire to earn hefty commissions (Id., paragraph 41).  A desire to earn hefty commissions is simply a desire to make a living.  This normal desire does not support an allegation that the defendants had an intent to defraud. 

 

Plaintiffs have not alleged sufficient facts in support of “justifiable reliance”.  Plaintiffs allege that the defendants defrauded them by claiming that the square footage was larger than it actually is, but plaintiffs do not set forth any facts which show why they were justified in relying on the defendants’ representations of square footage, when plaintiffs admit that public records reflect that the property was only approximately 5,100 square feet.  Id., paragraph 30.  Also, as to McGuire’s denial that the Seller’s husband had died on the property, plaintiffs do not set forth any facts which show why they were justified in taking McGuire’s word for this, when plaintiffs admit that public records show that the Seller’s husband had died on the property.  Id., paragraph 31. 

 

Plaintiffs have sufficiently alleged “damages”.  Id., paragraphs 28, 30 and 43. 

 

If fraud is alleged against a corporation, plaintiff must also allege “…the names of persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”  Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal. App. 4th 153, 157. 

 

Plaintiffs have set forth sufficient facts to show that the individual defendants were acting as agents of Beneficial Services and had authority to speak on behalf of the corporation.  Plaintiffs allege that Rasmussen, Canaday and McGuire are either employees or agents of Beneficial (Id., paragraphs 12 and 14), that McGuire listed the property in the MLS under her name and that of Beneficial (Id., paragraph 15), and that Rasmussen signed a disclosure document using Beneficial’s real estate broker’s license number (Id., paragraph 24, and Exhibit B).  Also, the purchase agreement (Id., Exhibit A) identifies Beneficial Services as the real estate broker for both the buyer and the seller.

 

The elements of a cause of action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (5) as a result of the concealment or suppression of the fact, plaintiff must have sustained damage.  Lovejoy v. AT&T Corp. (2001) 92 Cal. App. 4th 85, 96; Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal. App. 4th 603, 612-613. 

 

Plaintiffs have not set forth facts in the allegations under this cause of action which show that McGuire, who was the Seller’s agent, had a duty to disclose the square footage.  However, pursuant to Civil Code §1088, an agent who places a listing in the MLS is responsible to anyone injured by the falsity of any statements in the listing as to those statements which the agent had knowledge or reasonably should have had knowledge were false.  Plaintiffs claim that McGuire knew or should have known that the square footage was not 5,885 square feet.  FAC, paragraph 33.  This allegation supports the conclusion that McGuire thus had a duty to disclose the true square footage of the property. 

 

Plaintiff has not set forth sufficient facts to show “when” and “where” several of the misrepresentations occurred, and plaintiffs have not shown knowledge of falsity or justifiable reliance (which here is encompassed in Element #4). 

 

The Second Cause of Action for Negligent Misrepresentation

 

Civil Code §1710.2(d), which provides an exception to the general rule barring a cause of action concerning the failure to disclose a death on the property if the death occurred more than 3 years prior to the offer to purchase, only applies when an intentional misrepresentation is made in response to a direct inquiry from a transferee or a prospective transferee, not when a negligent misrepresentation is made.  Thus plaintiffs cannot state a cause of action for negligent misrepresentation as to McGuire’s denial that the Seller’s husband had died on the property unless the death occurred within 3 years prior to plaintiffs’ offer to purchase the property.

 

The elements of a cause of action for negligent misrepresentation are as follows:  (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) made with the intent to induce reliance, (4) ignorance of the truth and justifiable reliance thereon, and (5) damages.  Fox v. Pollack (1986) 181 Cal. App. 3d 954, 962. 

 

Negligent misrepresentation, like intentional misrepresentation, must be specifically pled Caldo v. Owens-Illinois, Inc. (2004) 125 Cal. App. 4th 513, 519. 

 

Interestingly, plaintiffs’ allegations under paragraphs 45 and 46 of this cause of action concern duty and breach of duty.  Duty is not an element of this cause of action. 

 

As to the “misrepresentation” and “without reasonable grounds” elements of this cause of action, plaintiffs set forth sufficient facts which support their statement that the defendants knew or did not have sufficient information to believe (because they did not conduct a reasonable inquiry) that the property was 5,885 square feet.  Since the actual square footage of the property (approximately 5,100 square feet) was allegedly available in public records (Id., paragraph 30), the fact that the defendants stated that the property was 5,885 square feet supports the conclusion that the defendants did not conduct a reasonable inquiry.  However, as discussed in connection with the fraud cause of action, “when” and “where” all of the misrepresentations and concealments were made is not clear.

 

Plaintiffs have not alleged sufficient facts to show an “intent to induce reliance”.  Plaintiffs allege that the defendants had an intent to defraud and induce reliance based on a desire to earn hefty commissions (Id., paragraph 41).  A desire to earn hefty commissions is simply a desire to make a living.  This normal desire does not support an allegation that the defendants had an intent to induce the defendants to rely on their representations. 

 

“Lack of knowledge of falsity” is sufficiently pled.  Plaintiffs state that they did not know of the falsity of the defendants’ representations.  Id., 29 and 31.

 

Plaintiffs have not alleged sufficient facts in support of “justifiable reliance”.  Plaintiffs allege that the defendants defrauded them by claiming that the square footage was larger than it actually is, but plaintiffs do not set forth any facts which show why they were justified in relying on the defendants’ representations of square footage, when plaintiffs admit that public records reflect that the property was only approximately 5,100 square feet.  Id., paragraph 30.  Also, as to McGuire’s denial that the Seller’s husband had died on the property, plaintiffs do not set forth any facts which show why they were justified in taking McGuire’s word for this, when plaintiffs admit that public records show that the Seller’s husband had died on the property.  Id., paragraph 31. 

 

Plaintiffs have sufficiently alleged “damages”.  Id., paragraphs 28, 30 and 49.

 

The Third Cause of Action for Breach of Fiduciary Duty

 

The elements of a cause of action for breach of fiduciary duty are:  (1) existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach.  Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal. App. 4th 1022, 1044. 

 

The defendants claim that the plaintiffs’ allegations that the defendants either intentionally misrepresented or failed to investigate the actual square footage of the property go beyond what the defendants’ actual duties were under Civil Code §2079, which sets forth the duty of a real estate broker to make visual inspections and disclose material facts based on a visual inspection.

 

The defendants discuss Padgett v. Phariss (1997) 54 Cal. App. 4th 1270.  In Padgett the court stated that the existence of a fiduciary relationship did not require the buyer’s agent to go beyond the standard of care, and that the plaintiffs could suggest no justifiable basis for imposing on the defendants a duty to call the homeowners’ association and inquire if any problems existed that might affect the value of one of the condominiums (i.e., pending lawsuits).

 

Padgett was decided by the 4th District Court of Appeal, Division One.  A year later (1998) the same Division decided Field v. Century 21 (1998) 63 Cal. App. 4th 18, in which the court took a much more expansive view of the fiduciary duty owed by a buyer’s broker to his/her client. 

 

The Field court stated that “…the fiduciary duty owed by brokers to their own clients is substantially more extensive than the nonfiduciary duty codified in section 2079.”  Field v. Century 21 (1998) 63 Cal. App. 4th 18, 25 (emphasis in original). 

 

Plaintiffs allege that as the plaintiffs’ agents, Rasmussen, Canaday and Beneficial Services owed a fiduciary duty to plaintiffs.  FAC, paragraph 51.

 

This statement is supported by Field:  A broker’s fiduciary duty to his client requires the highest good faith and undivided service and loyalty.  See Field 63 Cal. App. 4th at 25.    

 

The extent of a broker’s fiduciary duty to his/her client is very broad.

 

[D]epending on the circumstances, a broker's fiduciary duty may be much broader than the duty to visually inspect and may include a duty to inspect public records or permits concerning title or use of the property, a duty which is expressly excluded from section 2079.

 

Field v. Century 21 (1998) 63 Cal. App. 4th 18, 26.

Also, when transmitting material information from the seller to the buyer, the buyer’s agent must either verify the accuracy of the information or disclose to the buyer that the information has not been verified.  Salahutdin v. Valley of California, Inc. (1994) 24 Cal. App. 4th 555, 562-563.  A broker’s failure to verify or disclose to the buyer that the information has not been verified constitutes a breach of fiduciary duty or constructive fraud.  Id.

 

Plaintiffs allege that Rasmussen and Canaday either intentionally misrepresented or failed to investigate the actual square footage of the property, and transmitted the information to plaintiffs without verifying that the information was accurate or without disclosing to plaintiffs that the square footage information had not been verified.  FAC, paragraph 52.  Pursuant to Field and Salahutdin, discussed above, these actions or failures to act support a claim that the defendants breached their fiduciary duties to plaintiffs. 

 

The defendants cite to various sections of the Buyer’s Inspection Advisory attached to their moving papers to show that they have made disclosures to plaintiffs regarding the square footage of the property. 

 

First of all, this document is not properly before the court because it was not attached to the FAC and the defendants have not requested that the court take judicial notice of it.  The defendants’ claim that the Agreement which incorporates the Buyer’s Inspection Advisory, but the copy of the Agreement attached as Exhibit A to the Complaint is so poor that it is unclear if the Buyer’s Inspection Advisory is mentioned in it.  The defendants’ also claim that the Buyer’s Inspection Advisory is mentioned in the Complaint, but the document is not mentioned by name.  Plaintiffs state only that Rasmussen and McGuire provided a boilerplate disclosure.  Complaint, paragraph 34.    

 

Secondly, this document is dated January 26, 2008, which is long after the date of the purchase agreement (December 3, 2007), and therefore the defendants cannot rely on disclosures made in the document as a defense because the plaintiffs had already been induced to enter into the purchase agreement by the allegedly false statements well prior to January 26, 2008. 

 

Third, disclosures stating that the defendants are not responsible for verifying the accuracy of the size of the property and that the square footage represented is only an approximation serve no purpose when the discrepancy is substantial.  Here there is a substantial discrepancy (5,885 square feet versus 5,100 square feet).  See Furla v. Jon Douglas Co. (1998) 65 Cal. App. 4th 1069, 1081 (“[t]he alleged error here was not de minimis, and cannot be ignored. We cannot say that no reasonable jury could conclude that an ‘approximation’ of square footage which is wildly exaggerated amounts to an actionable misrepresentation of fact”). 

 

 Plaintiffs allege that the defendants’ breaches of their fiduciary duties caused plaintiffs to suffer damages, and that the actions of Rasmussen and Canaday are attributable to Beneficial Services.  FAC, paragraphs 53 and 54.

 

The Fourth Cause of Action for Violation of Civil Code §1088

 

Pursuant to Civil Code §1088, an agent who places a listing in the MLS is responsible to anyone injured by the falsity of any statements in the listing as to those statements which the agent had knowledge or reasonably should have had knowledge were false. 

 

Plaintiffs have made sufficient allegations to support this cause of action.  Plaintiffs allege that McGuire and Beneficial listed the property in the MLS Listing as having 5,885 square feet (FAC, paragraph 15), which representation was false (Id., paragraph 29), that Beneficial and McGuire knew or should have known that the square footage was not 5,885 square feet.  Id., paragraphs 33 and 57), and that this caused plaintiffs to suffer damages (Id., paragraphs 43 and 58). 

 

Motion to Strike: GRANT with 15 days leave to amend.  The phrase “Punitive damages” on page 11, line 26 and page 12, line 13 is hereby stricken. 

 

Joinder by defendant Lee Ann Canaday: DENY in that it was not timely filed or served. 

 

“Fraud” is defined as an intentional misrepresentation, deceit, or concealment of a material fact know to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.  Civil Code §3294(c)(3).

 

Plaintiffs’ fraud claim is deficient for the reasons outlined in the discussion of the fraud claim in the demurrer.

 

“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  Civil Code §3294(c)(1). 

 

Plaintiffs have not alleged sufficient facts to show that the defendants intended to cause plaintiffs to suffer injuries.  Plaintiffs allege that the defendants had an intent to defraud based on a desire to earn hefty commissions (Id., paragraph 41).  A desire to earn hefty commissions is simply a desire to make a living.  This normal desire does not support an allegation that the defendants had an intent to harm the plaintiffs by defrauding them.   

 

Plaintiffs have also not set forth facts which support the alternative requirements to show malice:  that the defendants engaged in despicable conduct which was carried on with a willful and conscious disregard of the rights or safety of others.  The defendants told plaintiffs that the property had more square footage than it actually has, and McGuire told plaintiffs that the Seller’s husband had not died on the property.  This hardly rises to the level of despicable conduct, which is “conduct that is ‘... so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’” Lackner v. North (2006) 135 Cal. App. 4th 1188, 1211 (citations omitted).   Also, plaintiffs have failed to show that the conduct was carried on with a willful and conscious disregard of plaintiffs’ rights.

 

“Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  Civil Code §3294(c)(2).

 

Again, the conduct complained of does not rise to the level of “despicable conduct”.    Also, plaintiffs have failed to show that the defendants conduct subjected them to a cruel and unjust hardship.  The defendants did not suffer torture or death:  they simply may have been overcharged for the property. 

 

Moving party to give notice.

9

Orloff v. P&E Groot Family Trust

6 Applications for Right to Attach Order/Writ of Attachment: OFF CALENDAR

10

Barbara v. Goveia

Demurrer/Motion to Strike: See below

 

Demurrer to the fraud causes of action (5th, 6th, 7th) and 8th cause of action for Unfair Business Practice are sustained with 20 days  leave to amend for failure to state sufficient facts.  

 

In order to state a cause of action for fraud (intentional misrepresentation), plaintiff must set forth facts which support the following: (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage.  Civil Code §’s 1709 and 1710. 

 

Fraud must be specifically pled because allegations of fraud involve a serious attack on a defendant’s character.  Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.  Pleadings for fraud must allege “facts which show how, when, where, to whom and by what means the representations were tendered.” Stansfield v. Starkey, (1990) 220 Cal. App. 3d 59, 73; Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645. 

 

 The facts as plead do not support  a fraud action but rather a generic business dispute.  It is unclear what motivations Goveia has in not fully financing the restaurant or cooperating with Barbara to make it a successful business. Goveia had every financial incentive to cooperate. Inattentiveness and laziness is negligent conduct and is inconsistent with an intent to defraud or a cause of action for unfair business practices. Without an explanation of any motive to act otherwise, the court finds no basis for fraud.

 

To the extent the motion to strike is not rendered moot by the ruling on demurrer, it is granted with 20 days leave to amend.

Moving party to give notice.

 

11

Spondulix Company v. Gibson

Demurrer to 2nd Amended Complaint: SUSTAIN as to 5th Cause of Action with 10 days leave to amend

 

Motion to Strike: MOOT

 

No opposition filed. The 2nd Amended Complaint fails to set forth the contract/contractual terms that presumably were breached by the demurring party.

 

Moving party to give notice.

12

 

Oftelie v. Hilton Hotels Corp.

Motion to Compel Further Responses to Request to Produce: DENIED as to Requests ##16, 19-21, 38, 42, 49 & 50: GRANTED but limited to Papagayo as to ##30, 40, 45, 48, 49, 60 , 62 and GRANTED as to the remaining items at issue. 

 

However, production is to be subject to a protective order. The parties are ordered to meet and confer in good faith to try to agree on the terms of the order.  If they cannot, they may each submit a proposed order.  The proposed order[s] must be filed no later than 5 court days following the hearing.  No other papers may be filed. Production is required 20 days after the court signs the protective order.

 

Sanctions are DENIED.  There is some merit to the contentions of both parties.  Also, Plaintiff failed to prepare a proposed protective order.

 

Moving party to give notice.

 

13

Cunningham v. City of San Clemente

Motion for Summary Judgment/Adjudication: DENY

 

s Motion for Summary Judgment is denied.  In terms of whether the O’Flynn ∏s lack standing, the reliance on the Krusi case for the proposition that in order to have standing a prior owner must assign the cause of action to the subsequent purchaser, is misplaced. The facts in Krusi, as mentioned by the opp papers, are totally different than the facts here. HERE, the O’Flynns are the second owners of residential property. There is no evidence the Jacobsons had been aware of and attempted to remedy the defect. Furthermore, one could say that hairline cracks and gaps are fundamentally different than a full blown landslide.

 

As to the O’Flynn’s being barred by the applicable SOL(s), there are certainly triable issues of material fact as to when the cause of action accrues (date hairline cracks were noticed, report in 2003, date of repair in 2005, date of landslide in 2006). Facts 1, 2 are disputed as to Issues 5,6,7,8.

 

As to causation, defendants’ argument that they did not cause the landslide is artificial and without merit. They are not being sued because they caused the landslide but for failure to properly test, inspect, investigate and ascertain the true conditions of the property. FA¢¶77. See also ¶85 of the FA¢ as to defendant Helfrich-Associates. Plaintiffs have presented expert opinion that defendants’ conduct fell below the standard of care. See Declaration of Gregory W. Axten ¶11, 18.

 

Motion for summary adjudication is denied for failure to comply w/ CRC 3.1350(b) “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts”.  HERE, the  defendants’ Separate Statement lists 13 issues to be adjudicated but the Notice of motion does not list any issues to be adjudicated at all.

 

Plaintiff to give notice.

14

 

Kor Electronics v. Herley Industries

Motion to Amend Stipulated Protective Order: DENY

without prejudice to move, if necessary, to add the ITAR provision to the protective order (which plaintiff has agreed to in any event)

 

There is no evidence that the present protective order is inadequate or that there is any danger that Plaintiff will misappropriate any of Defendants’ trade secrets in violation of that order.  It would be manifestly unjust to impose a restriction on Plaintiff that was not imposed on Defendants.  Their attorney admitted that Defendants have had the opportunity to review Plaintiff’s documents.  McCaffrey declaration, Ex.15.

 

There is no competent evidence that failure to include an “attorney’s eyes only” provision in the protective order was an oversight.  The order was the subject of lengthy negotiations [McCaffrey declaration, ¶¶4-6, 9-12.]  Had Defendant’s counsel believed that the protective order contained such a provision, he clearly would not have let his client review the documents that Plaintiff produced.

 

Plaintiff to give notice.

15

Third Laguna Hills Mutual v. PCM, Inc.

 Defendants’ Pickford Realty, Ltd. and Shauna Covington’s Demurrer to the Fifth Cause of Action of Breach of Duty to Disclose, the Sixth Cause of Action for Breach of Duty to be Honest and Truthful, the Seventh Cause of Action for Negligence, and the Eighth Cause of Action for Constructive Fraud in the Complaint is sustained with 20 days leave to amend.

 

Pickford Realty and Covington had a duty to plaintiffs to visually inspect the property pursuant to Civil Code §2079(a).

 

This duty to conduct a reasonably competent and diligent visual inspection is limited as set forth in Civil Code §2079.3, which provides as follows:

 

The inspection to be performed pursuant to this article does not include or involve an inspection of areas that are reasonably and normally inaccessible to such an inspection, nor an affirmative inspection of areas off the site of the subject property or public records or permits concerning the title or use of the property…

 

Plaintiffs allege that the defendants failed to conduct a reasonably competent and diligent visual inspection of the property (Complaint, paragraph 38), but plaintiffs fail to state facts in support of this conclusory statement. 

 

Plaintiffs allege that there was water damage in the form of stained concrete, stained wood flooring, the presence of mold, and damp soil below the lower wood framed floor [Complaint, paragraphs 22(a) & 31(a)], and that large areas of the damage had been patched or topped, which indicated an attempt to repair the damage (Complaint, paragraphs 23 and 31(b)]. 

 

If large areas of the damage had been “patched or topped” it is not clear from the facts alleged how the damage could have been discovered during a reasonably competent and diligent visual inspection.  Also, plaintiffs do not state whether or not the mold was present in an accessible location, and plaintiffs do not explain how Pickford and Covington could have discovered by visual inspection that the soil beneath the lower wood framed floor was damp. 

 

Further, plaintiffs admit that they did not discover the alleged damage until August of 2009 (Complaint, paragraph 25).  Plaintiffs do not explain how a reasonable visual inspection conducted prior to the sale date of September 22, 2008 could have revealed “damage” (i.e. defects) when it was not until almost a year later that plaintiffs discovered the damage. 

 

In addition to the alleged water damage, plaintiffs allege that approximately 1,362 square feet of the property was added without permits [Complaint, paragraphs 22(c) & 31(c)] and that at the time plaintiffs entered into the purchase contract (September 22, 2008), agents of Prudential (Pickford) represented to plaintiffs that the property was a completely remodeled 3,550 square foot home.  Complaint, paragraph 12.

 

Pursuant to Civil Code §2079.3, the inspection required does not include the inspection of public records or permits concerning the title or use of the property.  Thus Pickford and Covington did not have a duty to check the permitted square footage of the property or check records to see if the remodel was done properly. 

 

Also:

…once the sellers and their agent make the required disclosures, it is incumbent upon the potential purchasers to investigate and make an informed decision based thereon. In making the required disclosures, the sellers' agent is required only to act in good faith and not convey the seller's representations without a reasonable basis for believing them to be true.

Robinson v. Grossman (1997) 57 Cal. App. 4th 634, 644.

 

Plaintiff does not set forth any facts which would support a claim that Pickford and Covington did not have a reasonable basis for believing that the home was completely remodeled or that it consisted of 3,550 square feet. 

 

Plaintiff makes allegations concerning the MLS Listing for the property which are factually insufficient. 

Civil Code §1088 concerns liability for the accuracy of statements made in MLS Listings.  The statute provides, in pertinent part, as follows:

 

If an agent or appraiser places a listing or other information in the multiple listing service, that agent or appraiser shall be responsible for the truth of all representations and statements made by the agent or appraiser of which that agent or appraiser had knowledge or reasonably should have had knowledge to anyone injured by their falseness or inaccuracy.

 

Plaintiffs allege that Covington and/or other representatives of Prudential (Pickford) prepared the advertisement (i.e. the MLS Listing), and plaintiffs state that a copy of the Listing is attached to the Complaint as Exhibit A.  Complaint, paragraph 11.  However, the only exhibits attached to the complaint are the “Real Estate Transfer Disclosure Statement” and a “Disclosure and Consent for Representation of More than One Buyer or Seller”, both of which are attached as Exhibit A.  The MLS Listing is not attached.

 

Plaintiffs do not allege that the MLS Listing contained false statements:  plaintiffs only allege that they were never advised by Covington or any representative of Prudential (Pickford) that any of the statements made in the MLS listing were false or in any way incomplete or untrue.  Complaint, paragraph 12.

 

Additionally, no facts are alleged which would support a claim that Pickford or Covington had knowledge of the alleged falsity or inaccuracy of any of the statements made in the MLS Listing or reasonably should have had such knowledge. 

 

 

Moving party to give notice.

 

16

Westergaard v. Ochwat

DemurrerDefendants’ Pickford Realty, Ltd. and Shauna Covington’s Demurrer to the Fifth Cause of Action of Breach of Duty to Disclose, the Sixth Cause of Action for Breach of Duty to be Honest and Truthful, the Seventh Cause of Action for Negligence, and the Eighth Cause of Action for Constructive Fraud in the Complaint is sustained with 20 days leave to amend.

 

Pickford Realty and Covington had a duty to plaintiffs to visually inspect the property pursuant to Civil Code §2079(a).

 

This duty to conduct a reasonably competent and diligent visual inspection is limited as set forth in Civil Code §2079.3, which provides as follows:

 

The inspection to be performed pursuant to this article does not include or involve an inspection of areas that are reasonably and normally inaccessible to such an inspection, nor an affirmative inspection of areas off the site of the subject property or public records or permits concerning the title or use of the property…

 

Plaintiffs allege that the defendants failed to conduct a reasonably competent and diligent visual inspection of the property (Complaint, paragraph 38), but plaintiffs fail to state facts in support of this conclusory statement. 

 

Plaintiffs allege that there was water damage in the form of stained concrete, stained wood flooring, the presence of mold, and damp soil below the lower wood framed floor [Complaint, paragraphs 22(a) & 31(a)], and that large areas of the damage had been patched or topped, which indicated an attempt to repair the damage (Complaint, paragraphs 23 and 31(b)]. 

 

If large areas of the damage had been “patched or topped” it is not clear from the facts alleged how the damage could have been discovered during a reasonably competent and diligent visual inspection.  Also, plaintiffs do not state whether or not the mold was present in an accessible location, and plaintiffs do not explain how Pickford and Covington could have discovered by visual inspection that the soil beneath the lower wood framed floor was damp. 

 

Further, plaintiffs admit that they did not discover the alleged damage until August of 2009 (Complaint, paragraph 25).  Plaintiffs do not explain how a reasonable visual inspection conducted prior to the sale date of September 22, 2008 could have revealed “damage” (i.e. defects) when it was not until almost a year later that plaintiffs discovered the damage. 

 

In addition to the alleged water damage, plaintiffs allege that approximately 1,362 square feet of the property was added without permits [Complaint, paragraphs 22(c) & 31(c)] and that at the time plaintiffs entered into the purchase contract (September 22, 2008), agents of Prudential (Pickford) represented to plaintiffs that the property was a completely remodeled 3,550 square foot home.  Complaint, paragraph 12.

 

Pursuant to Civil Code §2079.3, the inspection required does not include the inspection of public records or permits concerning the title or use of the property.  Thus Pickford and Covington did not have a duty to check the permitted square footage of the property or check records to see if the remodel was done properly. 

 

Also:

…once the sellers and their agent make the required disclosures, it is incumbent upon the potential purchasers to investigate and make an informed decision based thereon. In making the required disclosures, the sellers' agent is required only to act in good faith and not convey the seller's representations without a reasonable basis for believing them to be true.

Robinson v. Grossman (1997) 57 Cal. App. 4th 634, 644.

 

Plaintiff does not set forth any facts which would support a claim that Pickford and Covington did not have a reasonable basis for believing that the home was completely remodeled or that it consisted of 3,550 square feet. 

 

Plaintiff makes allegations concerning the MLS Listing for the property which are factually insufficient. 

Civil Code §1088 concerns liability for the accuracy of statements made in MLS Listings.  The statute provides, in pertinent part, as follows:

 

If an agent or appraiser places a listing or other information in the multiple listing service, that agent or appraiser shall be responsible for the truth of all representations and statements made by the agent or appraiser of which that agent or appraiser had knowledge or reasonably should have had knowledge to anyone injured by their falseness or inaccuracy.

 

Plaintiffs allege that Covington and/or other representatives of Prudential (Pickford) prepared the advertisement (i.e. the MLS Listing), and plaintiffs state that a copy of the Listing is attached to the Complaint as Exhibit A.  Complaint, paragraph 11.  However, the only exhibits attached to the complaint are the “Real Estate Transfer Disclosure Statement” and a “Disclosure and Consent for Representation of More than One Buyer or Seller”, both of which are attached as Exhibit A.  The MLS Listing is not attached.

 

Plaintiffs do not allege that the MLS Listing contained false statements:  plaintiffs only allege that they were never advised by Covington or any representative of Prudential (Pickford) that any of the statements made in the MLS listing were false or in any way incomplete or untrue.  Complaint, paragraph 12.

 

Additionally, no facts are alleged which would support a claim that Pickford or Covington had knowledge of the alleged falsity or inaccuracy of any of the statements made in the MLS Listing or reasonably should have had such knowledge. 

 

 

 

 

17

Meyers v. First American Loanstar

Demurrer to Complaint: OFF CALENDAR

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