Judge: Gail Killefer, Case: 23STCV13221, Date: 2023-10-24 Tentative Ruling
Case Number: 23STCV13221 Hearing Date: November 27, 2023 Dept: 37
HEARING DATE: Monday, November 27, 2023
CASE NUMBER: 23STCV13221
CASE NAME: Bethany Kristovich v. Jonathan Benshalom, et al.
MOVING PARTY: Defendants Yuzon & Associates, Inc.
and Benigno Sari Yuzon
OPPOSING PARTY: Plaintiff Bethany Kristovich
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Demurrer to Complaint
OPPOSITION: 8 November 2023
REPLY: Not
filed.
TENTATIVE: The Yuzon Defendants’ demurrer is overruled.
Background
On
June 8, 2023, Bethany Kristovich (“Plaintiff”) filed a Complaint against
Jonathan Benshalom, 727 Las Palmas, LLC, JR Pool & Spa Service Inc., JR
Pool and Spa Services, Yoram David Najum aka Jerome Najum, Amit Apel Design,
Inc., Amit Apel, Yuzon & Associates, Inc., Benigno Sari Yuzon, and Does 1
to 100. The Complaint alleges three causes of action: (1) violation of the
standards set forth in Civ. Code §§ 896 and 897, (2) negligence, and (3)
professional negligence.
On
August 4, 2023, Defendants Jonathan Benshalom and 727 Las Palmas filed a
Cross-Complaint against Roes 1 to 50 for (1) express indemnity, (2) equitable
indemnity, (3) contribution and apportionment, (4) declaratory relief – duty to
defend, (5) declaratory relief-duty to indemnify, and (5) breach of contract –
failure to obtain insurance.
On
September 8, 2023, Defendant Amit Apel Design, Inc. and Amit Apel (collectively
“Amit Defendants”) filed a cross-complaint against Roes 1 to 50 for (1) implied
indemnity, (2) equitable indemnity, (3) equitable apportionment of fault, and
(4) contribution.
On September 1, 2023, the court granted
the Yuzon Defendants’ ex parte application for a stay of proceedings pending
resolution of Defendants demurrer and motion to dismiss. On September 25, 2023, the court lifted the stay.
On August 24, 2023, Defendants Yuzon
& Associates, Inc. and Benigno Sari Yuzon (collectively “Yuzon Defendants”)
filed a demurrer to Plaintiff’s Complaint. Plaintiff filed opposing papers on
November 8, 2023. No reply has been filed.
I. Legal Standard
Where pleadings are defective, a party may raise the defect
by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A
demurrer tests the sufficiency of a pleading, and the grounds for a demurrer
must appear on the face of the pleading or from judicially noticeable matters.¿
(CCP, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In
evaluating a demurrer, the court accepts the complainant’s properly pled facts
as true and ignores contentions, deductions, and conclusory statements. (Daar
v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971)
5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff
will be able to prove the allegations or the possible difficulty in making such
proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d
590, 604.)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to
show the Court that a pleading can be amended successfully. (Id.)
II. Demurrer[1]
The
Yuzon Defendants demurrer to Plaintiff’s Complaint on the ground that it fails
to state sufficient facts against them to constitute a cause of action. (CCP §
430.10(e).)
A. Statement
of Facts
This
action arises out of a construction defect case involving a single-family
residence (the “subject property”) that was purchased by Plaintiff for $3.1
Million in 2021. (Compl. ¶¶ 25, 26, 27.) Plaintiff alleges that after she
purchased the property she experienced significant latent defects, latent
structural problems, and latent problems with soil movement resulting in
property damage that Plaintiff could not and did not discover through due and
reasonable diligence prior to purchasing the subject property. (Compl. ¶ 26.)
Defendant Yuzon & Associates, Inc. (“YAI”) is
the structural engineering firm that designed the structural systems for the
improvements at the subject property. (Compl. ¶¶ 11, 19.) Defendant Benigno
Sari Yuzon (“Yuzon”) is the licensed civil and structural engineer who designed
the structural systems for the improvements at the subject property. (Compl. ¶
12, 19.)
B. First
Cause of Action
A
homeowner alleging defects in a residence may bring a claim under the Right to
Repair Act. Civil Code § 896 states in relevant part:
In any action seeking
recovery of damages arising out of, or related to deficiencies in, the
residential construction, design, specifications, surveying, planning,
supervision, testing, or observation of construction, a builder, and to the
extent set forth in Chapter 4 (commencing with Section 910), a general
contractor, subcontractor, material supplier, individual product manufacturer,
or design professional, shall, except as specifically set forth in this title,
be liable for, and the claimant's claims or causes of action shall be limited
to violation of, the following standards, except as specifically set forth in
this title. This title applies to original construction intended to be sold as
an individual dwelling unit.
Civil Code § 897 states:
The standards set forth in
this chapter are intended to address every function or component of a
structure. To the extent that a function or component of a structure is not
addressed by these standards, it shall be actionable if it causes damage.
The
Complaint alleges that the “[f]ailure to properly design and build the
structures on the Property for the expansive soils which exist thereon, and
improper soils compaction, causing severe damage to the Property.” (Compl. ¶
26(s).) This design and building flaw caused damage to “to the residence, pool,
glass panels, doors, windows, concrete slabs, tile and other
structures/improvements,
including, without limitation, vertical displacement,
misalignment
of doors and windows, cracking and misalignment of drywall, glass
shattering,
stucco, wood, concrete, masonry, metal and other materials, in violation of
the
Functionality Standards. In addition, among other things, Plaintiff is informed
and
believes,
and based thereon alleges, that the soil on the Property has been improperly
compacted
such that it has caused damage to the residence, pool, glass panels, doors,
windows,
concrete slabs, tile and other structures/improvements, including, without
limitation,
vertical displacement, insufficient earthquake/lateral support, misalignment of
doors and windows, cracking and misalignment of drywall, stucco, wood,
concrete, masonry, metal and other materials.” (Compl. ¶ 26(s).) In this
manner, Defendants are alleged to have violated the Functionality Standards of
Civil Code §§ 896 and 897 and caused Plaintiff to experience an excess of
$1,567,000.00 in damages. (Compl. ¶¶ 27, 30.) Specifically, Plaintiff wants to
recover the reasonable value of repair and other costs permitted, pursuant to
Civil Code § 944.)
The
Yuzon Defendants fail to state how the Complaint is deficient in alleging a
cause of action for violations of Civil Code §§ 896 and 897. The court finds
the first cause of action adequately pled and overrules the demurrer to the
first cause of action.
C. Second
Cause of Action – Negligence
“The
elements of a cause of action for negligence are well established. They are (a)
a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the
breach as the proximate or legal cause of the resulting injury.” (Ladd v.
County of San Mateo (1996) 12 Cal.4th 913, 917 [internal quotations
omitted].) “A duty may arise through statute, contract, or the relationship of
the parties.” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th
914, 920 [internal quotations and citations omitted].) The existence of a legal
duty is a question of law for the court to decide. (Adams v. City of Fremont
(1998) 68 Cal.App.4th 243, 265.) “However, the elements of breach of that duty
and causation are ordinarily questions of fact for the jury's determination.” (Vasquez
v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.)
The
court overrules the demurrer to the second cause of action on the ground that
the Complaint does not allege a negligence cause of action against the Yuzon
Defendants.
D. Third
Cause of Action
“The elements of a
cause of action in tort for professional negligence are: the duty of the
professional to use such skill, prudence and diligence as other members of the
profession commonly possess and exercise; a breach of that duty; a proximate
causal connection between the negligent conduct and the resulting injury; and
actual loss or damage resulting from the professional's negligence.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1066–1067.)
Here,
the third cause of action for professional negligence is alleged against the
Yuzon Defendants. Plaintiff alleges professional negligence on the ground that
Defendants YAI and Yuzon “breached their duty of skill and care, and committed
professional negligence, by designing the Property and improvements thereon
defectively as hereinabove alleged.” (Compl. ¶ 39.) Plaintiff alleges that
Defendants owed a duty to Plaintiff to adhere to accepted standards within
their profession and act as reasonably prudent designers would have in similar
circumstances in the same community in designing and constructing and making
improvements on the subject property. (Compl. ¶ 18.) Defendants YAI and Yuzon
breached their duty of skill and care by designing the subject property and
making improvements on it defectively, proximately causing Plaintiff damages in
excess of $1,567,000.00.” (Compl. ¶ 38.)
As
with the first cause of action, the Yuzon Defendants fail to explain how the
third cause of action fails to allege facts against them or why the pleaded
facts are deficient to allege a legal basis of liability against them. The
court finds that the third cause of action is adequately pled and overrules the
demurrer to the third cause of action.
Conclusion
The Yuzon Defendants’ demurrer is
overruled. Defendants to give notice.