Judge Carolyn M. Caietti, Case Number: 37-2020-00027950-CU-OR-CTL, Date: 2024-06-07 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2020-00027950-CU-OR-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Other Real Property Demurrer / Motion to Strike 37-2020-00027950-CU-OR-CTL NGUYEN VS MILLER [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Cross-Defendants Toan Trung Nguyen and Allison James of California Inc.'s Demurrer to Cross-Complainant Rosemarie Wolkins and Andrew Arroyo Real Estate, Inc.'s First Amended Cross-Complaint is SUSTAINED IN PART WITH LEAVE TO AMEND and OVERRULED IN PART.

Preliminary Matter Cross-Defendants Toan Trung Nguyen and Allison James of California, Inc.'s unopposed request for judicial notice is granted and notice will be taken to the extent permitted.

Statement of the Law 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 v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Discussion The case concerns residential property at 10875 Pinot Noir Circle in San Diego. As background, the complaint alleges Defendants Steven Miller and Lori McDonald sold the property to Plaintiff Jacqueline Nguyen in 2018 with the moving parties, Cross-Defendants Toan Trung Nguyen and Allison James Estates and Homes of Riverside (Allison James), serving as her agent and broker. In 2020, Plaintiff filed the complaint, asserting Miller, McDonald and their agent, Rosemarie Wolkins, and broker, Andrew Arroyo Real Estate, Inc. (AARE) did not provide certain disclosures about the foundation and construction, inter alia, before she bought the property. After the sale, Plaintiff discovered defective conditions, materially affecting the desirability of the property and/or the price she paid for the home.

Miller and McDonald then filed a cross-complaint against Wolkins and AARE, who then filed a Calendar No.: Event ID: TENTATIVE RULINGS

3086618 50 CASE NUMBER: CASE TITLE: NGUYEN VS MILLER [IMAGED] 37-2020-00027950-CU-OR-CTL cross-complaint against Plaintiff's agent and brokerage, Toan Trung Nguyen and Allison James Estates and Homes of Riverside (Allison James). Wolkins/AARE alleged they provided documents and disclosures to Plaintiff and Nguyen and that Nguyen had a fiduciary duty to Plaintiff, was required to raise any concerns and advise Plaintiff on whether additional inspections should be done. (FAXC, at ¶¶ 10-18.) This demurrer is by Nguyen/Allison James, but the grounds for demurrer only state Allison James demurs to each cause of action in Wolkins/AARE's First Amended Cross-Complaint (FAXC) on grounds it does not state sufficient facts and the causes of action are uncertain. (ROA 94; C.C.P., § 430.10(e), (f).) Allison James argues it was not the entity that had any involvement in the transaction and explains the Residential Purchase Agreement attached to Plaintiff's Complaint as Exhibit 1 shows the broker for Plaintiff's agent was Allison James Estates and Homes with DRE Lic. #01885684. Department of Real Estate records shows this license number relates to Allison James of California, Inc. dba Allison James Estates and Homes. It does not have a dba of 'Allison James Estates and Homes of Riverside' as alleged in the FAXC. (RFJN 1-2.) In opposition, Wolkins/AARE do not respond to this argument, impliedly conceding on the merits. (See, San Diego Court Local Rule. 2.1.19(B).) Courts correctly sustain demurrers for failure to join indispensable parties, but err by denying leave to amend when the record suggests the plaintiff will be able to name the correct parties in an amended complaint. (See, Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1016.) Thus, to the extent the demurrer is by Allison James of California, Inc., it is SUSTAINED IN PART WITH LEAVE TO AMEND.

As for Nguyen, the grounds for demurrer, which must be distinctly specified (C.C.P., § 430.60) do not include his name. (Notice of Demurrer, at p. 2:7-15.) Similarly, the memorandum does not address the allegations against him and each of the headnotes focus on Allison James.

Notwithstanding, to the extent the demurrer is by Toan Trung Nguyen, he has not met his burden the FAXC states insufficient facts or is uncertain. The moving parties make unpersuasive arguments like: 'because the claims for indemnity and contribution against Allison James are based on the premise that Plaintiff will prevail against Wolkins/Arroyo on one or more of her claims, the analysis of Wolkins/Arroyo's claims against Allison James necessarily includes a review of what Plaintiff must prove to establish liability on the part of Wolkins/Arroyo because, as shown below, Wolkins/Arroyo's claims for indemnity and contribution against Allison James cannot co-exist with a finding of liability against Wolkins/Arroyo on Plaintiff's claims.' (Memo., at p. 9:20-25.) But the FAXC alleges more than just Nguyen being liable for what is alleged in the Complaint.

Wolkins/AARE's FAXC deny they are liable to Plaintiff and, in the event they are liable, their negligence 'was merely passive while the misconduct of [Nguyen/Allison James] was active in that they engaged in the same acts and/or omissions in a manner that was neither safe nor reasonable.' (FAXC, at ¶ 23.) In particular, Wolkins/AARE allege Toan Trung Nguyen reviewed the documents with Plaintiff and, if they were incomplete, Nguyen should have raised concerns and had an obligation to advise Plaintiff as to whether additional inspections should be done or that she was taking the risk of buying a home with the disclosed issues. (FAXC, at ¶¶ 17-18.) These allegations are sufficient to support a reasonable inference that Toan Trung Nguyen shares in the fault and an 'actual controversy' exists over the parties' responsibility, if any, for the damages claimed by Plaintiff. (C.C.P., § 1060.) Giving the FAXC's properly pleaded facts a liberal construction, sufficient facts are alleged to constitute indemnity, contribution and declaratory relief. (E.g., FAXC at 17-18, 23.) Thus, the demurrer by Nguyen is OVERRULED.

Concluding Orders Wolkins/AARE are ordered to file and serve an amended cross-complaint consistent with this ruling by June 21, 2024.

Calendar No.: Event ID: TENTATIVE RULINGS

3086618 50 CASE NUMBER: CASE TITLE: NGUYEN VS MILLER [IMAGED] 37-2020-00027950-CU-OR-CTL If the tentative ruling is confirmed without modification, this minute order will be the Court's final ruling on the demurrer. The moving parties are ordered to serve notice of the Court's final ruling on all appearing parties by June 11, 2024.

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3086618 50