Judge Colin Leis, Case Number: 23STCV19340, Date: 2024-03-27 Tentative Ruling

Judge: Colin Leis, Case: 23STCV19340, Date: 2024-03-27 Tentative Ruling

Case Number: 23STCV19340 Hearing Date: March 27, 2024 Dept: 74

David Ferrell, et al. v. Richard Lopez

Defendants’ Demurrer to Complaint

BACKGROUND

This action arises from a dispute over real property.

On March 11, 2024, Plaintiffs David Ferrell and Michael Woloz (Plaintiffs) filed a complaint against Defendant Richard Lopez (Defendant). The complaint alleges the following causes of action: (1) nondisclosure of material facts, (2) fraudulent concealment, (3) negligent misrepresentation, and (4) professional negligence.

On September 25, 2023, Defendant filed this demurrer. The demurrer targets the second cause of action for fraudulent concealment.

LEGAL STANDARD

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¿¿.) “¿To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.¿” (¿¿C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872¿¿.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (¿Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967¿.) A demurrer “¿does not admit contentions, deductions or conclusions of fact or law.¿” (¿¿Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713¿¿.) DISCUSSION

Defendant argues Plaintiffs have not sufficiently pleaded their fraudulent concealment claim. The elements are as follows: (1) the defendant must have concealed 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 the fact with the intent to defraud the plaintiff, (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 fact, and (5) as a result of the concealment, the plaintiff must have sustained damage. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.) In this context, the plaintiff must plead the supporting facts with particularity. (Lazar v. Superior Court (12 Cal.4th 631, 645 [holding that a cause of action for fraud requires the plaintiff to plead facts that show how, when, where, to whom, and by what means the representations were made].)

Here, Plaintiff alleges Defendant knew about the defective foundation because he renovated the property. (Complaint, ¶¶ 37, 46.) As the seller, Defendant had a duty to disclose to Plaintiffs the defective foundation because it affected the property’s value. (Complaint, ¶¶ 35, 44.) In 2020, though, Defendant concealed this fact from Plaintiffs and other potential buyers on Multiple Listing Service. There, Defendant misrepresented that the property’s entire foundation was new. (Complaint, ¶ 14, 15.) And on July 16, 2021, Defendant issued a Real Estate Transfer Disclosure Statement, in which Defendant described the property’s extensive remodeling but failed to disclose to Plaintiffs the defective foundation. (Complaint, ¶¶ 16, 17.) Under the allegations, Defendant intentionally concealed the material fact to induce Plaintiffs to purchase the property. (Complaint, ¶ 47.) Moreover, Plaintiffs were not aware of the defective foundation. (Complaint, ¶ 48.) Nor would Plaintiffs have purchased the property if they had known about it. (Complaint, ¶ 49.) Last, Plaintiffs have suffered damage in the form of repair costs. (Complaint, ¶¶ 33, 50.) Given the foregoing, Plaintiffs have sufficiently pleaded a fraudulent concealment claim. (See Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp. 966-967¿ [demurrer admits the truth of all material facts properly pleaded].)

CONCLUSION

The court overrules Defendant’s demurer.

Defendant shall file and serve their answer within 20 days.

Defendant shall give notice.

David Ferrell, et al. v. Richard Lopez

Defendants’ Motion to Strike Portions of the Complaint

The court considered the moving papers, opposition, and reply.

BACKGROUND

This action arises from a dispute over real property.

On September 25, 2023, Defendant filed this motion to strike portions of the complaint.

LEGAL STANDARD

A court may strike any “¿irrelevant, false or improper matter¿inserted in any pleading¿” or any part of a pleading “¿not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.¿” (¿Code Civ. Proc., § 436¿.) “¿The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.¿” (¿Code Civ. Proc., § 437¿.)¿

DISCUSSION

Defendant first aims to strike Plaintiffs’ request for punitive damages on page 10, paragraph 70 of the complaint. Under Civil Code section 3294, punitive damages are recoverable if the defendant has been guilty of oppression, fraud, or malice. Fraud includes intentional concealment of a material fact known to a defendant, who intends to cause injury to another person through the concealment. (Civ. Code, § 3294, subd. (c)(3).) The court has already found that Plaintiffs have pleaded sufficient facts for their fraudulent concealment claim, which supports their request for punitive damages. Thus, the court denies Defendant’s motion to strike the request for punitive damages.

Next, Defendant seeks to strike Plaintiffs’ request for general damages on page 10, paragraph 69. According to Defendant, such damages are not recoverable in this context. (Channell v. Anthony (1976) 58 Cal.App.3d 290, 315.) General damages are losses that naturally flow from the injury and are not quantifiable by reference to bills or receipts. (Beeman v Burling (1990) 216 Cal.App.3d 1586, 1600.) Damages for pain, suffering, and emotional distress are thus examples of general damages. (Ibid.) In their opposition, Plaintiffs acknowledge they do not seek damages for physical or emotional suffering. Nevertheless, Plaintiffs contend they are entitled to general damages. But Plaintiffs do not direct the court to any allegation in the complaint that they suffered a loss that cannot be quantified by repair bills. Thus, the court grants Defendants’ motion to strike the request for general damages with leave to amend.

CONCLUSION

The court grants Defendant’s motion to strike page 10, paragraph 69 of the complaint with leave to amend. The court denies Defendant’s motion to strike page 10, paragraph 70 of the complaint.

Defendant shall give notice.