Judge: Maurice A. Leiter, Case: 24STCV25209, Date: 2025-01-23 Tentative Ruling

Case Number: 24STCV25209    Hearing Date: January 23, 2025    Dept: 54

Hearing Date: January 23, 2025

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint

Moving Party: Defendant Richard G. Leff, individually and as trustee of the Richard G. Leff Living Trust U/D/T

Responding Party: Plaintiffs Edward Shkolnikov and Radmila Shkolnikov

T/R:      DEFENDANT’S DEMURRER IS OVERRULED.

DEFENDANT TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On September 30, 2024, Plaintiffs Edward Shkolnikov and Radmila Shkolnikov sued Defendant Richard G. Leff, individually and as trustee of the Richard G. Leff Living Trust U/D/T, asserting causes of action for (1) fraud; (2) negligent misrepresentation; (3) violation of Civil Code § 1102, et seq.; and (4) breach of contract. Plaintiffs allege they purchased a home from Defendant and Defendant misrepresented that the back deck of the home was constructed with permits, resulting in repair costs of $500,000.

REQUESTS FOR JUDICIAL NOTICE

Defendant’s requests for judicial notice are DENIED as matters not subject to judicial notice. Plaintiff’s requests for judicial notice are GRANTED as to the existence of the documents but not as to the truth of the matters asserted in them.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. Purchase Agreement

Defendant demurs to the complaint on the grounds that the “complete” purchase agreement required Plaintiff to make investigations into permitting and that Plaintiffs released their claims against Defendant for repairs relating to the deck. As stated, the Court declines to take judicial notice of the documents presented by Defendants, which include several documents not referenced in the complaint and not subject to judicial notice as official records.

In addition, Plaintiff alleges that Defendants made misrepresentations in the Real Estate Transfer Disclosure Statement and the Seller Property Questionnaire on or about July 2, 2021, stating that (1) there were no room additions, structural modifications, or other alterations or repairs made without necessary permits; and (2) there were no notices of abatement or citations against the property. The purchase agreement does not contradict these statements.

B. Statute of Limitations

Defendant also demurs to the complaint on the ground that it is barred by the three-year statute of limitations for fraud. Defendant asserts that escrow closed on August 4, 2021, making August 4, 2024 the last day Plaintiff could file suit. Plaintiff filed suit on September 30, 2024. In opposition, Plaintiff asserts that complaint is not barred because it alleges that the misrepresentation was not discovered until November 2021. This is sufficient at the pleading stage to allege compliance with the statute of limitations.

Defendant’s demurrer is OVERRULED.