Judge Audra Mori, Case 22STCV09480 2022-09-16 Tentative Ruling

Plaintiff Angie Craft (“Plaintiff”) filed this action against defendants Dolce & Associates, Patrick Sullivan, Patricia Sullivan, Patricia Norwine, Staci's Home Inspections, Staci Goddard, 5650 Sumner Way Condominium Association, Caren Saiet, and Roe Agency for injuries Plaintiff sustained when she fell out of a third-story window in her recently purchased condominium. The complaint alleges a single cause of action for negligence against all defendants.

Defendant Caren Saiet (“Defendant”) now demurs to the complaint arguing the complaint fails to state sufficient facts to constitute a claim against her, and that the negligence claim is uncertain. Plaintiff opposes the demurrer, and Defendant filed a reply.

Defendant asserts she was the real estate agent that represented Plaintiff when she purchased the condominium in 2020, but there are no allegations showing Defendant owed Plaintiff any duty to determine whether the property was free from dangerous conditions. Defendant contends that Plaintiff does not allege that Defendant had any notice or knowledge of the dangerous condition and instead merely groups the sellers and their agents together in the complaint. Further, Defendant argues that under California law, an agent owes a limited duty of inspection and disclosure, but the complaint does not allege that Defendant owed this statutory duty or that Defendant failed to perform the required visual inspection.

In opposition, Plaintiff asserts she is suing Defendant for failing to conduct an adequate and competent inspection, which Plaintiff contends Defendant had a duty to perform. Plaintiff contends Defendant’s factual arguments over whether she breached the duty owed to Plaintiff are inappropriate for demurrer, and the complaint sufficiently states a negligence claim against Defendant.

In reply, Defendant contends that Plaintiff fails to make any factual allegations and contains only legal conclusions.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

The court finds Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Rosenbaum Decl. ¶¶ 2-5.)

The elements of a cause of action for negligence are duty, breach, causation, and damages. (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255; Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) There is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Regarding the duty of a real estate sales agent’s duty to a buyer, Civil Code § 2079(a) states:

It is the duty of a real estate broker or salesperson … to a prospective buyer of residential real property improved with one to four dwelling units or a manufactured home as defined in Section 18007 of the Health and Safety Code, to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to that prospective buyer all facts materially affecting the value or desirability of the property that an investigation would reveal, if that broker has a written contract with the seller to find or obtain a buyer or is a broker who acts in cooperation with that broker to find and obtain a buyer.

Defendants Dolce & Associates ("Defendant Broker") and their agent Patricia Norwine ("Defendant Seller's Agent") were the real estate brokers acting on behalf of the sellers. Defendant 5650 Sumner Way Condominium Association ("Defendant HOA") was homeowner's association which exerted control over the premises where Plaintiff was injured. Defendant Caren Saiet ("Defendant Buyer's Agent") was the real estate broker acting on behalf of Plaintiff. Pursuant to the doctrine of respondeat superior, the employer of defendant Caren Saiet (hereinafter "ROE AGENCY") is liable to Plaintiff for the acts and omissions of defendant Saiet. Plaintiff relied upon the inspection completed by Staci's Home Inspections and their agent Staci Goddard ("Defendant Inspectors") in determining whether her home was free of dangerous conditions, as well as inspections required to be performed by Caren Saiet, ROE AGENCY, Patrica [sic] Norwine, Dolce & Associates and/or Defendant Sellers.

… Defendant Buyer's Agent violated their common-law fiduciary duty to Plaintiff when they failed to disclose material facts affecting the safety of the dwelling.

At all times relevant hereto Defendants, and each of them, owed to Plaintiff a duty of reasonable care. By failing to conduct adequate inspections, by failing to apprise Plaintiff of the dangerous and deadly nature of the window in the unit she sought to purchase Defendants, and each of them, breached that duty of reasonable care.

(Compl. at pp. 4-5, emphasis added.) The complaint, thus, alleges that moving Defendant was the real estate broker acting on behalf of Plaintiff, that Defendant failed to disclose unidentified material facts to Plaintiff, and that Defendant failed to conduct adequate inspections.

As Defendant acknowledges in the demurrer, a real estate broker or salesperson owes a statutory duty “to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to that prospective buyer all facts materially affecting the value or desirability of the property that an investigation would reveal…” (Civ. Code § 2709(a).) Defendant does not dispute that this statute otherwise applies to her, and Plaintiff asserts her claims against Defendant are premised on “this duty” owed under Civil Code § 2709. (Opp. at p. 2:22.)

While the complaint alleges in a conclusory manner that Defendant failed to disclose material facts to Plaintiff and failed to perform an adequate inspection, there are no factual allegations concerning what material facts known to Defendant she failed to disclose, or how Defendant failed to perform an adequate inspection. Pursuant to Civil Code § 2709, Defendant owed a duty to conduct only a reasonably competent and diligent visual inspection of the property. There are no facts alleged as to how Defendant breached this duty- that is, there are no facts alleged as to how a visual inspection would have disclosed the alleged dangerous condition of the window. Moreover, Plaintiff does not cite any authority or provide any argument as to how Defendant breached a common-law fiduciary duty owed to Plaintiff.

Accordingly, the complaint fails to state a claim for negligence against Defendant on the basis that Defendant breached her duty under Civil Code § 2709.

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) In this case, Plaintiff requests leave to amend the complaint. The Court finds there is a reasonably possibility the complaint can be cured to state a claim against Defendant.

Defendant’s demurrer is sustained to the first cause of action with 20 days leave to amend.

Hon. Audra Mori

Judge of the Superior Court