Judge: Douglas W. Stern, Case: 20STCV11840, Date: 2023-11-20 Tentative Ruling

Case Number: 20STCV11840    Hearing Date: November 20, 2023    Dept: 68

Motion for Summary Adjudication

Barbara C. Reed, et al. vs. Teresita Durfee, et al., 20STCV11840

Moving Parties: Defendants Teresita Durfee and Norbert Durfee

I.                   Background

Plaintiff Christian T. Gregory (Plaintiff) and Plaintiff Barbara C. Reed (now deceased) bought a property in Pasadena on September 11, 2017, from Defendants Teresita Durfee and Norbert Durfee (Defendants). Plaintiffs’ complaint was based on their allegations that while Defendants had disclosed the location of the septic tank manhole, they failed to disclose that they had built an unpermitted sunroom directly over the home’s septic tank with a seepage pit access point within the outdoor kitchen. (Opposition at pp. 6-7.) Plaintiffs alleged that these things were in violation of Los Angeles County’s septic tank setback ordinance.  (See Los Angeles County Code § 11.38.750.)

Defendants Norbert Durfee and Teresita Durfee had stated in the Seller Disclosure and Real Estate Transfer Disclosure Statement that there were no setback violations at the property. (Plaintiff’s AMF 7 and 10.) Defendant Norbert Durfee had known about the septic setback problem for years. (Plaintiff’s AMF 8.)

Defendants filed their motions for summary adjudication on July 25, 2023. Plaintiff filed his opposition on November 6, 2023. No reply has been filed as of November 17, 2023.

II.                Objections

a.      Plaintiff’s Objection to request for judicial of notice

                                                              i.      Deposition Transcript of Christian T. Gregory – sustained. No basis for judicial notice for a deposition transcript.

b.      Evidentiary Objections

                                                              i.      Declaration of Norbert Durfee

1.      Sustained: 2, 3, 4

2.      Overruled: None

                                                            ii.      Declaration of Teresita Durfee

1.      Sustained: 5, 6, 7

2.      Overruled: None

III.             Analysis

a.      Standard for Summary Judgment/Summary Adjudication

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿ 

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿ 

When interpreting § 437c, courts have held that a three-step analysis is required: (1) Identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading; (2) Determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor; and (3) Determine whether the opposition demonstrates the existence of a triable, material factual issue. (AARTS Production, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)¿¿ 

Summary Judgment may be granted only where all the supporting and opposition papers show there is no triable issue as to any material fact and the moving party is entitled to judgment “as a matter of law.” (CCP § 437c(c).)¿¿ 

As a result, the Plaintiff “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, fns. omitted; Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 562-563.)¿¿ 

The Defendant need only show the existence of a triable issue of material fact. (Union Bank v. Super Ct. (Demetry) (1995) 31 Cal.4th 573, 590; see Lopez v. SuperCt. (Friedman Bros. Invest. Co.) (1996) 45 Cal.4th 705, 713; Leslie G. v. Perfy & Assocs. (1996) 43 Cal.4th 472, 482.) Summary judgment would not be proper where the facts support a triable issue of fact.¿ 

b.      Issues for Summary Judgment

                                                              i.      The Septic Tank Issue

Defendants move for summary adjudication against Plaintiff’s causes of action for (1) non-disclosure; (2) fraud – intentional misrepresentation/concealment; and (3) negligent misrepresentation. Defendants move for summary adjudication against these causes of action on the basis that there are no triable issues of material fact concerning the septic tank setback issue.

Defendants argue that because they disclosed the location of the manhole cover that accesses the septic tank, that was sufficient as a matter of law to cover any liability that they might have had for the first three causes of action. However, Plaintiff argues in in his opposition that disclosing the location of the manhole is not the same as disclosing that the sunroom was built without a permit over the septic tank.

First, the septic tank issue is only part of the allegations contained under the first three causes of action of Plaintiff’s FAC. There are also allegations concerning drainage issues (FAC, ¶¶ 57, 74, and 87) and allegations concerning the backyard retaining walls (FAC, ¶¶ 59). Defendant’s motion only discusses the septic tank issue and does not discuss these other issues. Courts may only grant summary adjudication if the motion “completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f)(1).) Deciding the septic tank issue would not completely dispose of the first three causes of action. Therefore, the Court cannot grant summary adjudication on that issue alone.

As to the merits of the motion, Defendants have not provided evidence demonstrating that they disclosed or that Plaintiffs knew that the sunroom had been built without a permit in violation of the County Code. Whether the disclosure of the manhole location was sufficient, and whether Defendants’ statement that there were no setback violations at the property constitute non-disclosure or some type of misrepresentation, are triable issues of material fact.

The Court denies Defendants’ motions for summary adjudication.

IV.             Order

Defendants’ motions for summary adjudication are DENIED.