Judge: John J. Kralik, Case: 20BBCV00477, Date: 2022-09-02 Tentative Ruling
Case Number: 20BBCV00477 Hearing Date: September 2, 2022 Dept: NCB
North
Central District
|
Anthony
Bozanich, Plaintiff, v. sang hyuk park, Defendant. |
Case No.: 20BBCV00477 Hearing Date: September 2, 2022 [TENTATIVE]
order RE: Demurrer; motion to strike |
BACKGROUND
A.
Allegations
Plaintiff Anthony Bozanich (“Plaintiff”)
alleges that on August 8, 2016, Plaintiff and Defendant Sang Hyuk Park (“Park”)
executed a California Residential Purchase Agreement and Joint Escrow
Instructions (“Purchase Agreement”) for Plaintiff’s purchase of residential
property located at 12407 Moorpark Street, #105, Studio City, CA 91604. As part of the escrow process, Park prepared
and signed several California Association Realtors forms, including the
Transfer Disclosure Statement (“TDS”) and Seller Property Questionnaire
(“SPQ”). In his TDS, Park stated that he
was unaware of the presence of mold at the property and in the TDS and SPQ,
Park did not disclose any ongoing water leaks/intrusion at the property.
Plaintiff alleges that escrow closed on
September 27, 2016 and he moved into the property in November 2016. Plaintiff alleges that he learned about
issues with the HVAC in late spring/early summer of 2017 when he first ran the
unit, which created excessive moisture and pooling of water that caused
mold. Plaintiff alleges that in
late-June 2017, water began pouring down from the ceiling smoke detector
outside of the property’s spare bedroom, which was water leaking from the
neighboring unit above the property.
Plaintiff also alleges that he discovered
construction defect issues with the exterior balcony, which included a negative
slope that caused water to pool along the property’s exterior walls.
Plaintiff alleges that he later discovered
that Park had actual knowledge of the issues with the HVAC unit, the leaking
water from the above unit, and the balcony defects prior to executing the
Purchase Agreement.
The complaint, filed August 4, 2020,
alleges causes of action for: (1) breach of contract; (2) fraud; and (3)
negligent misrepresentation.
On March 24, 2021, Plaintiff amended the
complaint to name Forward Wilshire Inc. dba Keller Williams Realty Larchmont as
Doe 1.
B.
Motions on Calendar
On August 9, 2022,
Defendant Forward Wilshire Inc. dba Keller Williams Realty Larchmont (“Keller
Williams”) filed a demurrer and a motion to strike.
The Court is not in receipt of an
opposition brief.
REQUEST
FOR JUDICIAL NOTICE
Keller Williams requests judicial notice
of: (1) the State of California Department of Real Estate, Public Licensee
Lookup information (dated August 3, 2022) regarding public DRE license
information for Forward Wilshire, Inc.; and (2) State of California DRE, Public
License status Code (dated August 3, 2022) regarding “Licensed” status
description. The request is
granted.
DISCUSSION RE DEMURRER
A.
Breach of Written Contract – 1st cause of
action
The essential elements of a cause of
action for breach of contract are: “(1) the
existence of the contract, (2) plaintiff's performance or excuse for
nonperformance, (3) defendant's breach, and (4) the resulting damages to
plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “A
written contract may be pleaded either by
its terms—set out verbatim in the complaint or a copy of
the contract attached to the complaint and incorporated therein
by reference—or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)
In the 1st cause of
action, Plaintiff alleges that he and Park entered into the Purchase Agreement
on August 8, 2016 and that he performed the material obligations of the
Purchase Agreement, except those he was prevented from performing due to Park’s
wrongful conduct. (Compl.,
¶¶17-18.) Plaintiff alleges that Park
failed to disclose material defects of which he was aware to Plaintiff as
required by the Purchase Agreement, such that Plaintiff was damaged. (Id., ¶¶19-20.)
Keller Williams demurs
to the 1st cause of action, arguing that it is a licensed real
estate broker and is not a party to the Purchase Agreement, which was made
between Plaintiff (buyer) and Park (seller).
Further, it argues that Plaintiff has not attached a copy of the
Purchase Agreement or stated the material terms.
Here, the complaint does not
include a copy of the Purchase Agreement.
A review of the complaint also shows that the material terms of the
Purchase Agreement are not provided. As
a copy of the Purchase Agreement is not attached, the Court cannot verify
whether Keller Williams is a party to the Purchase Agreement. In addition, the complaint does not allege
that Keller Williams (Doe 1) is a party to the agreement; rather, the complaint
alleges that only Plaintiff as the buyer and Park as the seller are the parties
to the Purchase Agreement. As currently alleged, Plaintiff has not pleaded
facts showing that it entered into a contract with Keller Williams and how
Keller Williams breached the contract thereto.
Next, Keller Williams argues
that the Purchase Agreement was entered 6 years ago and the action is
time-barred based on a 2-year statute of limitations period for disclosure
claims against real estate brokers and the 4-year statute of limitations for
breach of written contract claims. (See
Civil Code, § 2079.4; CCP § 337(a).) “In order for the
bar of the statute of limitations to be raised by demurrer, the defect must
clearly and affirmatively appear on the face of the complaint; it is not enough
that the complaint shows merely that the action may be barred.” (E-Fab,
Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-16.) At this time, the Court cannot assess whether
the action was time-barred. As discussed
above, it is unclear what contract is at issue and
whether there even was a contract between Plaintiff and Keller Williams.
The demurrer to the 1st
cause of action is sustained. As this is
Plaintiff’s first attempt at the pleading against Keller Williams, the Court
will allow leave to amend. However,
Plaintiff should
carefully assess whether this cause of action is properly brought against
Keller Williams.
B.
Fraud – 2nd cause of action
To allege a cause of action for fraud, the
requisite elements are: (1) a representation,
usually of fact, which is false; (2) knowledge of its falsity; (3) intent to defraud; (4) justifiable reliance upon the misrepresentation;
and (5) damage resulting from that justifiable reliance. (Stansfield
v. Starkey (1990) 220 Cal. App. 3d 59, 72-73.) This cause of action is a tort of
deceit and the facts constituting each element must be alleged with
particularity; the claim cannot be saved by referring to the policy favoring
liberal construction of pleadings. (Committee on Children's Television, Inc. v. General Foods Corp.
(1983) 35 Cal.3d 197, 216.) Since
the claim must be pleaded with particularity, the cause of action based on
misrepresentations must allege facts showing how, when, where, to whom, and by
what means the misrepresentations were tendered. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)
In the fraud cause of action,
Plaintiff alleges that from August 8, 2016 to September 27, 2016 (close of
escrow), Defendants made fraudulent representations and concealed material
facts for the express purpose of inducing Plaintiff to enter into the Purchase
Agreement and close escrow. (Compl.,
¶23.) He alleges that Defendants made
false representations and intentionally concealed material defects on the condition
of the property that were known to Defendants and that Plaintiff could not have
known. (Id., ¶24.) Plaintiff alleges that Defendants knew from
the very beginning that their representations were false, but nevertheless
convinced Plaintiff to purchase the property.
(Id., ¶¶25-26.)
Plaintiff alleges he reasonably relied on the representations by
executing the Purchase Agreement and closing escrow. (Id., ¶27.)
Keller
Williams argues that the complaint fails to state any facts against it showing
how, when, where, to whom, and by what means Keller Williams made any alleged
misrepresentation. In the complaint, the
allegations generally state that “Defendants” made representations or
intentionally concealed material facts, but the complaint fails to plead the
facts with the requisite specificity necessary for a fraud cause of
action. The demurrer on this basis is
sustained.
Next,
Keller Williams argues that the action is time barred based on the 2-year
statute of limitations period against real estate brokers and the 3-year
statute of limitations period for fraud claims. (See Civil Code, § 2079.4; CCP § 338(d).) However, without the basic facts of when the
representations were made by Keller Williams, the Court cannot ascertain when
the statute of limitations period began.
As such, the demurrer on this basis is overruled.
The demurrer to the 2nd cause of action is
sustained with leave to amend.
C.
Negligent Misrepresentation - 3rd cause of
action
To allege a cause of action for negligent misrepresentation, the requisite elements are: (1) a misrepresentation of a past or existing material fact; (2) without
reasonable grounds for believing it to be true; (3) with intent to induce
another's reliance on the fact misrepresented; (4) ignorance of the truth and
justifiable reliance thereon by the party to whom the misrepresentation was
directed; and (5) damages. (B.L.M. v. Sabo & Deitsch (1997)
55 Cal. App. 4th 823, 834.) Negligent
misrepresentation, unlike fraud, does not require knowledge of falsity. (Apollo
Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226,
243.) However, like fraud, “[e]ach element in a
cause of action for. . . negligent misrepresentation must be factually and
specifically alleged.” (Cadlo v. Owens-Illinois, Inc. (2004) 125
Cal.App.4th 513, 519.)
In the complaint, the 3rd cause
of action for negligent misrepresentation alleges similar facts as the fraud
cause of action. (See Compl.,
¶¶31-35.)
For the same reasons discussed above
regarding the demurrer to the fraud cause of action, the Court sustains the
demurrer to the 3rd cause of action with leave to amend.
DISCUSSION
RE MOTION TO STRIKE
In light of the ruling on the
demurrer, the Court takes the motion to strike portions of the complaint
off-calendar.
CONCLUSION
AND ORDER
Defendant Forward Wilshire Inc. dba Keller
Williams Realty Larchmont’s demurrer to the 1st, 2nd, and
3rd causes of action in the complaint is sustained with 20 days
leave to amend.
Defendant Forward Wilshire Inc. dba Keller
Williams Realty Larchmont’s motion to strike is taken off-calendar as moot, in
light of the ruling on the demurrer.
A Case Management Conference is set on
December 5, 2022.
Defendant shall provide notice of this
order.