Judge: Carolyn M. Caietti, Case: 37-2023-00000382-CU-PN-CTL, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 23, 2024

05/24/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Professional Negligence Motion Hearing (Civil) 37-2023-00000382-CU-PN-CTL ONTIVEROS VS ENLOE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Elizabeth Ann Enloe and Preferred Group Properties Inc. dba Harcourt Prime Properties' Motion for Attorney Fees is GRANTED IN PART AND DENIED IN PART.

Cross-Defendants Realty Partners Services, Inc. and James Hillier's Demurrer to Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Enloe and Preferred Group Properties Inc.'s Motion for Attorney Fees Plaintiff's request for judicial notice is granted and notice will be taken to the extent permitted.

On November 9, 2023, the Court granted in part Defendants Enloe and Preferred Group Properties Inc.

(Harcourt)'s special motion to strike, striking: (i) paragraph 21; (ii) portions of paragraphs 26, 30 and 35 in the first, second and third causes of action, respectively; (iii) the fourth cause of action in its entirety; (iv) the sixth cause of action in its entirety; and (v) the seventh cause of action to the extent it incorporated paragraph 21. (ROA 52.) Defendants were not successful in their request to strike paragraph 22 and the fifth, eighth and ninth causes of action. They now ask for $23,835 in attorney fees under C.C.P. section 425.16(c)(1).

Defendants Prevailed on the Special Motion to Strike Defendants largely prevailed on the motion and are entitled to fees. (C.C.P., § 425.16(c)(1) [a prevailing defendant on a special motion to strike shall be entitled to recover attorney fees and costs]; Maleti v. Wickers (2022) 82 Cal.App.5th 181, 232, as modified on denial of reh'g (Sept. 9, 2022), rev. denied (Nov. 22, 2022 (reversing order denying attorney fees and costs on a partially successful special motion to strike).) Here, Defendants sought to strike seven causes of action and two paragraphs of factual allegations.

They prevailed in striking two causes of action (defamation and intentional infliction of emotional distress), significant parts of four causes of action and one paragraph of factual allegations. While Defendants were not entirely successful, 'their success was not trivial or a pyrrhic victory.' (Maleti, supra, at p. 232-33.) The order had the 'practical benefit to Attorneys of narrowing the litigation, thus impacting discovery, motion practice and trial preparation.' (Ibid.) As discussed by Defendants the elimination of the allegations regarding Defendants' alleged reporting of illegal activities against Plaintiff Valerde to the Department of Real Estate, San Diego Police Department, the San Diego District Attorney's Office and the Ethics Commission (stricken FAC, at ¶ 21) alone significantly narrowed the Calendar No.: Event ID:  TENTATIVE RULINGS

3062137  32 CASE NUMBER: CASE TITLE:  ONTIVEROS VS ENLOE [IMAGED]  37-2023-00000382-CU-PN-CTL scope of discovery. Thus, the results of the motion were not so insignificant that Defendants did not achieve any practical benefit from bringing the motion. (Ibid.) The full amount of a reasonable lodestar will be awarded.

Lodestar Calculation The next question is the amount of fees to award, which requires a lodestar calculation. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432 (569 East County).) First, as to the hourly rate, after considering the Court's own knowledge and familiarity with the legal market, the experience, skill and reputation of the attorney requesting fees and the difficulty or complexity of the litigation (id., at p. 436-37), Defendants' attorney's $350 hourly rate is reasonable and uncontested.

The second part of the lodestar calculation is the number of hours reasonably expended. A fee award under the anti-SLAPP statute may not include matters unrelated to the anti-SLAPP motion. (569 East County, at p. 433.) Here, Defendants maintain they spent 68.1 hours to prepare the motion, review the opposition, prepare the reply, attend the hearing and prepare this fee motion. After review of Defendants' Exhibit C, the Court finds the following: Some services charged do not appear to be 'incurred in connection with' the motion itself. (569 East County, at p. 433 (ruling a prevailing defendant is entitled to seek fees and costs incurred in connection with the anti-SLAPP motion itself, but not for the entire action and may not include matters unrelated to the anti-SLAPP motion).) These charges total 7 hours for dates on April 20, 2023, April 26, 2023, May 1, 2023, May 3, 2023, May 8, 2023, May 15, 2023, May 25, 2023, June 28, 2023, (first) Oct. 26, 2023 (first) Oct. 27, 2023, (first) Oct. 30, 2023, Nov. 6, 2023. They will not be included in the calculation.

By the Court's calculation, Defendants spent 33.1 hours preparing the motion; 19 hours to reply and prepare/attend the hearing; and 9 hours on the fee motion. This is unreasonably high, some charges appear duplicative and will be reduced to 20 hours to prepare, 10 hours to reply and prepare/attend the hearing; and 5 hours on the fee motion for a total of 35 hours.

Thus, the Court will award $12,250 [$350 hourly rate x 35 hours].

For these reasons, the motion is GRANTED IN PART AND DENIED IN PART.

Realty Partners Services, Inc./Hillier's Demurrer to Cross-Complaint 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'].) Here, Realty Partners Services, Inc. (Realty) and Hillier's demurrer is to the three causes of action against it: equitable indemnification, equitable contribution and declaratory relief. Insufficient facts are alleged to constitute these claims. (C.C.P., § 430.10(e).

Plaintiffs' FAC faults Enloe/Harcourt for not discovering and disclosing to Plaintiffs that Michael Wickware, principal of Mike's Limited Investments, LLC, was a convicted felon and unable to obtain Calendar No.: Event ID:  TENTATIVE RULINGS

3062137  32 CASE NUMBER: CASE TITLE:  ONTIVEROS VS ENLOE [IMAGED]  37-2023-00000382-CU-PN-CTL financing for the real estate purchase. (Complaint, at ¶ 9; XC, at ¶ 9.) Enloe/Harcourt's Cross-Complaint incorporates the FAC by reference and seeks indemnification on the basis Realty/Hillier had a duty to disclose any material facts known to them that would impact the closing of the transaction. (XC, at ¶ 14.) Realty/Hillier are not identified in the FAC.

While a buyer's broker has a common law duty of care to third persons in the transaction, including the seller (see, Geif v. Sanin (2022) 74 Cal.App.5th 412, 429), there is no legal authority provided establishing this duty includes advising a seller that the buyer will ultimately be unable to obtain financing for the purchase. In addition, there is no statutory duty to disclose such information. A buyer's agent has a statutory duty to the buyer and seller: (a) to use diligent exercise of reasonable skill and care in performance of the agent's duties; (b) a duty of honest and fair dealing and good faith; and (c) a duty to disclose all facts known to the agent materially affecting 'the value or desirability of the property' that are not known to, or within the diligent attention and observation of, the parties.' (Civil Code, § 2079.16.) An agent is not obligated 'to reveal to either party any confidential information obtained from the other party that does not involve the affirmative duties set forth above.' (Ibid.) Enloe/Harcourt have not cited any legal authority that a buyer's broker or agent has a duty to disclose facts that would impact the closing of the transaction to parties other than their own clients or that such a duty falls within the statutory duties stated in Civil Code section 2079.16. The cases cited by Enloe/Harcourt concern duties owed to the broker/agent's own principal; not the other transacting party.

(Salahutdin v. Valley of Calif., Inc. (1994) 24 Cal.App.4th 555, 562-63 (agent breached fiduciary duty of care and committed constructive fraud by making false representations to his clients that property was more than one acre in size and could be subdivided); Field v. Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18, 21 (concluding a fiduciary duty of a broker, who contracts to exclusively represent a purchaser of real property, to investigate for its client, is independent of the separate obligation imposed on a seller's broker to conduct a reasonable visual inspection of the marketed property for a buyer's protection). As far as the Court understands, Enloe/Harcourt essentially seek to require Realty/Hillier to preemptively advise the seller that their principal will be in breach of a purchase and sale agreement before the closing date. It is unclear and unsupported how Realty/Hillier owed Plaintiffs any of these obligations alleged; and how this would not also violate any duties owed to their own principal.

Enloe/Harcourt did not request leave to amend, nor identify any facts to cure the defects raised in the demurrer. (Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1150 (explaining the plaintiff has the burden of proving an amendment would cure the legal defect.) Thus, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Concluding Orders Plaintiffs Felipe Ontiveros and Norma Valverde are ordered to pay Defendants Elizabeth Ann Enloe and Preferred Group Properties Inc. attorney fees in the amount of $12,250, by June 28, 2024.

Cross-Defendants Realty Partners Services, Inc. and James Hillier's are ordered to prepare and submit a proposed judgment of dismissal in accordance with any laws and rules of court.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final rulings on the motions. Defendants Enloe and Harcourt are ordered to serve written notice of the final ruling on all appearing parties by May 29, 2024.

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