Judge: Glenn R. Salter, Case: 22-1253483, Date: 2022-12-01 Tentative Ruling

The demurrer of defendant to the First Amended Complaint is OVERRULED with 10 days to answer.

The residential property—which is located in Los Angeles County—was sold “as is.”  (Whether venue is properly laid here because the defendant resides in Orange County is never addressed.)

The complaint alleges:  The defendant seller of the property did not disclose that various unpermitted work was done in the backyard.  Specifically, a drainage swale was filled in and replaced with a drainpipe.  This work “increased” the usable acreage of the property but exposed it to the risk of flooding, which the complaint asserts just recently occurred for the first time since the sale.

The demurrer basically argues that the property was old “as is” and thus the plaintiff cannot state a cause of action against the defendant/seller.

It is well settled that the sale of real property “as is” does not protect the seller from claims of misrepresentation and non-disclosure.  Here, the complaint alleges the seller did not disclose in the contract or The Real Estate Disclosure Statement (required by Civil Code section 1102.1) that the swale had been filled in without any engineering or government permits, and that the drainage flow had been changed.

In the demurrer, defendant’s counsel indicates that the work was engineered and permitted.  Counsel indicates that he has the plans that he received from his client, and that he is intending to procure a copy of the permitted work from the city and attach that to a Request for Judicial Notice.  But the request for judicial notice has not been filed.  Plaintiff’s evidentiary objections to defendant counsel’s declaration as to the city plans is therefore SUSTAINED.

The plaintiff shall give notice.