Judge: John J. Kralik, Case: 19BBCV00542, Date: 2022-10-28 Tentative Ruling

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Case Number: 19BBCV00542    Hearing Date: October 28, 2022    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Anthony Fiorin, Trustee of the Fiorin Family Trust, U/A dated October 14, 2017 (“Plaintiff”) alleges that Defendant Bobak Partial (“Partial”) purchased residential real property located at 11446 Dona Dolores Place on April 5, 2017 with the intention of flipping the home.  Parial used Jason Scharf (“Mr. Scharf”) to obtain permits and perform improvements on the property, though neither Partial nor Mr. Scharf were licensed contractors.  In connection with the permits, Mr. Scharf signed several declarations on Partial’s behalf representing Partial was an “owner-builder” and thereby except from Contractor’s State License Law.  Plaintiff alleges that the declarations were false because Partial did not intend to perform the work himself or through his own employees for compensation, nor used licensed contractors.  Plaintiff alleges that Partial and Scharf’s work was not covered by construction permits, such as removing load bearing walls from the interior of the property to create an open floor plan.

Plaintiff alleges that Partial listed the property for sale on October 3, 2017, through his real estate broker Defendant Marc Alain Fronen dba Fronen Investment Co. (“Fronen) and licensed salesperson Defendant Deborah Scharf (“Mrs. Scharf”).  Plaintiff alleges that when he viewed the home, Mrs. Scharf informed him that the property was “new construction” and a “new build.”  Plaintiff alleges that on October 17, 2017, he made an offer to purchase the property and accepted Partial’s counter-offer on November 3, 2017 for the purchase price of $2.1 million. 

Shortly after moving into the home, Plaintiff alleges there were numerous patent and latent defects in the construction of the property, such as a foul odor in the bathroom, defective plumbing and sewer lines, substandard workmanship, removal of a load bearing interior wall, massive leaks, cracking and separating drywall, etc. 

The first amended complaint (“FAC”), filed August 23, 2019, alleges causes of action for: (1) breach of contract against Partial; (2) breach of the implied covenant of good faith and fair dealing against Partial; (3) strict liability against Partial; (4) violation of Business & Professions Code, §7044 against Partial; (5) negligence against Partial and Mr. Scharf; (6) breach of implied warranties against Partial and Mr. Scharf; (7) intentional misrepresentation against Partial, Fronen, and Mrs. Scharf; (8) negligent misrepresentation against Partial, Fronen, and Mrs. Scharf; (9) intentional nondisclosure of material facts against Partial, Fronen, and Mrs. Scharf; (10) negligent nondisclosure of material facts against Partial, Fronen, and Mrs. Scharf; and (11) violation of Civil Code, §1102 against Partial. 

B.     Demurrer on Calendar

On September 9, 2022, Defendant Jason Scharf (in propria persona) filed a demurrer.

On October 17, 2022, Plaintiff filed an opposition brief.

DISCUSSION

            Mr. Scharf demurs to the 5^th and 6^th causes of action for negligence and breach of implied warranties.

A.    5^th cause of action

In the 5^th cause of action for negligence, Plaintiff alleges that Partial and Mr. Scharf were responsible for the construction performed on the property and that they had a duty to perform the work in a reasonably good and workmanlike manner.  (FAC, ¶64.)  Plaintiff alleges that Partial and Mr. Scharf breached their duty because the work performed was not in a reasonably good or workmanlike manner.  (Id., ¶65.)  Plaintiff alleges that after moving into the property, he noticed a foul order around the bathroom, which he believed was caused by defects in plumbing.  (Id., ¶66.) 

In his demurrer, Mr. Scharf argues that he was never employed by Partial but was an independent contractor for Partial and was Partial’s “authorized agent”; he assisted Partial in managing day-to-day operations and supervising subcontractors; and he did not enter into any business relationship with Plaintiff.  He provides his declaration in support of these statements.  (Scharf Decl., ¶3; Dem. at pp.2-3.)  However, the demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.  (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.)  Mr. Scharf’s arguments in the demurrer are based on extrinsic facts.  He has not shown how the allegations of the 5^th cause of action in the FAC (taken as true at the pleading stage) fail to allege sufficient facts against him. 

Further, Mr. Scharf argues that Plaintiff did not provide a sworn declaration with the FAC.  This is not a requirement in filing a complaint.  Whether the truth of the allegations can be proven true with evidence will be determined at a later stage.

The demurrer to the 5^th cause of action is overruled.

B.     6^th cause of action   

In the 6^th cause of action for breach of implied warranties, Plaintiff alleges that Partial and Mr. Scharf implicitly warranted that the property was designed and constructed in a skillful manner, so as to be reasonably fit for its intended purpose as a home.  (FAC, ¶71.)   Plaintiff alleges that they breached the warranty because the work performed was not in a reasonably good or workmanlike manner.  (Id., ¶73.) 

Mr. Scharf makes similar arguments in the demurrer for the 6^th cause of action as he did for the 5^th cause of action.  Namely, he argues that Plaintiff would have to prove that he was an employee of Partial or Plaintiff.  Again, Mr. Scharf’s arguments that he is not Partial’s employee and was only an independent contractor/authorized agent are extrinsic to the facts alleged in the complaint.

The demurrer to the 6^th cause of action is overruled.

CONCLUSION AND ORDER

            Defendant Jason Scharf’s demurrer to the 5^th and 6^th causes of action in the First Amended Complaint is overruled.  Defendant is ordered to answer within 10 days of this order.

            Defendant shall provide notice of this order.