Judge Lee S. Arian, Case Number: 23STCV27915, Date: 2024-03-27 Tentative Ruling

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. [Citation.]” Hahn, supra, 147 Cal.App.4th at p. 747, citing SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)

“Where the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies. . . . The running of the statute must appear ‘clearly and affirmatively’ from the face of the complaint. It is not enough that the complaint might be time-barred.” (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781; Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.)

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Defendant’s counsel declared that he called Plaintiff and sent Plaintiff a letter to meet and confer, but Plaintiff refused to meet and confer with counsel on the phone and did not provide any response to his letter. Thus, while a meet and confer did not occur, Defendant is excused from that requirement.

Analysis and Conclusion

On November 15, 2023, Plaintiff filed an action against Defendant Michael Eisenberg alleging claims related to a real property transaction that occurred decades earlier, in 2000. Plaintiff contends that Defendant Eisenberg served as his real estate agent during the sale of his property located at 2367 Merrywood Drive in Laurel Canyon. The core of Plaintiff's allegations is that Defendant engaged in fraudulent activities by failing to remit the correct amount owed to Plaintiff from the sale transaction. Plaintiff did not specify the precise cause of action against Defendant.

Claims against real estate brokers are governed by a two-year statute of limitations, beginning from the close of escrow. Civil Code § 2079.4 states, "In no event shall the time for commencement of legal action for breach of duty imposed by this article exceed two years from the date of possession, which means the date of recordation, the date of close of escrow, or the date of occupancy, whichever occurs first." Additionally, the statute of limitations for alleged negligent misrepresentation, fraudulent concealment, and intentional misrepresentation is three years, according to CCP § 338(d). Breach of a written contract is subject to a four-year statute of limitations (CCP § 337), and actions on an oral contract must be initiated within two years. (CCP § 339.) Any other claims that do not fall under these specified categories would be subject to the general four-year limitations period provided by CCP § 343.

Plaintiff alleged that the injury/fraud in question occurred in 2000, and Plaintiff has acknowledged being aware of the wrongdoing for at least the past five years, stating, "In the last 5 or so years, I cannot stop thinking how he wrecked my life. My family stopped talking to me after he cheated me." Given Plaintiff’s allegations, the statute of limitation has passed for claims of fraud, breach of contract or any other claims Plaintiff has against the Defendant raising from the real estate transaction. Plaintiff did not file an opposition to contest the demurrer. Thus, the Demurrer is GRANTED. Motion to Strike is therefore moot and DENIED.

No basis exists for leave to amend. Plaintiff is to file an order consistent with this ruling that terminates the action

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿¿¿¿

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.