Judge Matthew C. Braner, Case 37-2022-00017985-CU-CO-CTL 2023-12-08 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2022-00017985-CU-CO-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Contract - Other Demurrer / Motion to Strike 37-2022-00017985-CU-CO-CTL PETIGARA VS KB HOME COASTAL INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant KB Home Coastal Inc.'s demurrer is SUSTAINED in part, and OVERRULED in part.

A demurrer shall be sustained if the complaint 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10(e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The demurrer is sustained as to the contract causes of action, which includes the second, third, and fourth causes of action. Section 7.2 of the purchase contract (attached as an exhibit to the first amended complaint via errata) specifies that a party has 20 days from the date it receives a written Default Notice (pursuant to section 7.1) to send a Dispute Notice to the other party to dispute that it is in default. Failure to comply with this procedure effects a waiver of the right to dispute the claims in the Default Notice and entitles the non-defaulting party to the remedy it elected in the Default Notice. Absent from the FAC is any allegation that Plaintiffs complied with this procedure upon receipt of the July 5, 2022 default notice from Defendant.

Accordingly, the demurrer is sustained as to the second, third, and fourth causes of action. Plaintiffs have leave to amend.

As to the remaining non-contract causes of action, the demurrer is overruled.

First, the promissory estoppel claim is adequately pleaded. The court is not persuaded that the language in the Supplemental Agreement unambiguously set forth a close of escrow date of April 26, 2022; such a finding would effectively render meaningless the language 'the seventh (7th) calendar day after Buyer's scheduled new home orientation and final walk through.' The meaning of this alternative language is in dispute, and is ultimately a factual question not suitable for resolution on a demurrer. Whether it was reasonable for Plaintiffs to rely on this language and additional representations from Defendant that they would get 'enough time to get the [loan] documents in order' is also a disputed fact question not suitable for resolution at the pleading stage. Plaintiffs have also adequately pleaded damages by alleging they wired Defendant $50,000 as consideration for the extension set forth in the Supplemental Agreement.

Defendant's contention that it never received that money is outside the pleadings and is, again, a factual dispute not suitable for resolution at the pleading stage.

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3001298 14 CASE NUMBER: CASE TITLE: PETIGARA VS KB HOME COASTAL INC [IMAGED] 37-2022-00017985-CU-CO-CTL The negligent misrepresentation claim is likewise adequately pleaded, for many of the same reasons that the promissory estoppel claim survives demurrer. In addition, the court is not persuaded that the representation about leaving the closing date open was an unactionable opinion about a future event; rather, it was a representation about a then-present promise about what Defendant would do, not what it might or could do. The allegation concerning the additional consideration paid to get the extension is also adequate to plead damages.

Finally, the declaratory relief claim also survives demurrer. Defendant claims that the equitable remedy of specific performance is no longer available because the property has been sold to a third-party.

However, this is a factual assertion that is outside the pleadings; the court therefore cannot rely on it in making its determination with respect to the demurrer.

Accordingly, the demurrer is overruled as to the first, fifth, and sixth causes of action.

Plaintiffs have 30 days from entry of this order to file and serve a second amended complaint.

The minute order is the order of the court.

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3001298 14