Judge: Melvin D. Sandvig, Case: 23CHCV00954, Date: 2023-10-06 Tentative Ruling

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Case Number: 23CHCV00954    Hearing Date: March 22, 2024    Dept: F47

Dept. F47

Date: 3/22/24

Case #23CHCV00954

 

DEMURRER & MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT

 

Demurrer & Motion to Strike filed on 1/5/24.

 

MOVING PARTY: Defendants Kannella, Inc. dba Re-Max All Pro; Charla Gonzalez and Virginia Rios

RESPONDING PARTY: Plaintiffs Delia M. Gonzalez, Monica M. Gonzalez and Jessica Acosta

NOTICE: ok

 

Demurrer is to the entire First Amended Complaint:

            1.  Breach of Contract

            2.  Fraud

            3.  Negligence

            4.  Civil Battery

            5.  Intentional Infliction of Emotional Distress

            6.  Premises Liability

 

*The causes of action in the caption of the First Amended Complaint do not match those in the body of the complaint.  The caption lists the causes of action as: (1) Breach, (2) Violation of Civil Code 1102, (3) Fraud by Concealment, (4) Negligence, (5) Conversion and (6) Battery.

 

RELIEF IN MOTION TO STRIKE: An order striking Plaintiffs’ request for punitive and exemplary damages (p.14:3-5, p.14:7).   

 

RULING: The demurrer is sustained without leave to amend.  The motion to strike is placed off calendar as moot.

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of Plaintiffs Delia M. Gonzalez, Monica M. Gonzalez and Jessica Acosta’s (Plaintiffs) purchase of real property commonly known as 9043 Greenbush Avenue in Pacoima California from Defendants Maria Ramos and Gilardo Ramos (the Sellers).  Defendants Kanella, Inc. dba Re-Max All Pro, Charla Gonzalez, an alleged real estate agent, and Virginia Rios, an alleged licensed real estate broker (the Seller Agents) were involved in the sales transaction. 

 

Plaintiffs allege that, on 12/1/22, the Sellers and the Seller Agents failed to disclose that the property was repaired, patched, and painted to conceal the fact that the roof needed replacement; mold had to be removed; and there was significant rotted wood in the walls and ceilings. (FAC ¶16).  Plaintiffs allege that that Defendants Ivan Escobar of D&M Home Inspections also failed to disclose and/or minimized the significant damage to the roof, ceiling, and walls which were “unsound to withstand rain, bugs, and mold.”  (FAC ¶¶18, 21).

 

As a result of the foregoing, on 4/5/23, Plaintiffs, representing themselves, filed this action alleging various causes of action.  The caption of the original complaint listed the causes of action as: (1) Breach, (2) Violation of Civil Code Section 1102, (3) Fraud by Concealment, (4) Negligence, (5) Conversion and (6) Battery. The body of the original complaint included causes of action for: (1) Breach of Contract; (2) Fraud; (3) Negligence; (4) Civil Battery; (5) Intentional Infliction of Emotional Distress and (6) Premises Liability.  The complaint did not specify against which defendants each cause of action was alleged.  On 10/6/23, the Court sustained the Seller Agents’ demurrer to the entire complaint with leave to amend.  On 11/28/23, Plaintiffs, still representing themselves, filed the subject First Amended Complaint which, like the original complaint, contains a caption which sets forth different causes of action than the body of the First Amended Complaint.  The caption of the First Amended Complaint lists the same causes of action as the caption of the original complaint and the body of the First Amended Complaint contains the same six causes of action as the body of the original complaint.  The First Amended Complaint, again, like the original complaint, does not specify against which defendants each cause of action is alleged.

 

After Plaintiffs failed to respond to their counsel’s meet and confer efforts, on 1/5/24, the Seller Agents filed and served Plaintiffs, by U.S. mail, with the instant demurer to the entire First Amended Complaint and motion to strike which seeks an order striking Plaintiffs’ request for punitive and exemplary damages (p.14:3-5, p.14:7).  (See Hawatmeh Decl.).  Plaintiffs have not opposed or otherwise responded to the demurrer or motion to strike.

 

ANALYSIS

 

Defendants demur to the entire First Amended Complaint on the ground that it fails to state facts sufficient to constitute a cause of action.  CCP 430.10(e).    

 

The Court finds that the First Amended Complaint is also uncertain in that the causes of action in the caption do not match those in the body of the pleading.  Additionally, it is not clear what is being alleged against each defendant as none of the causes of action contain specific allegations regarding the defendants. 

 

Breach of Contract

 

The elements of a breach of contract cause of action are: (1) a contract between the parties, (2) plaintiffs’ performance or excuse for nonperformance of their obligations under the contract, (3) the defendants’ breach of their contractual obligations, and (4) resulting damages to the plaintiffs.  Careau & Co. (1990) 222 CA3d 1371, 1388.

 

Plaintiffs’ 1st cause of action is based on a written contract between the Plaintiffs and the Sellers, not the Seller Agents.  (FAC ¶26).  A claim for breach of a written contract must set forth the terms of the contract verbatim in the body of the complaint or attach a copy of the contract and incorporate it by reference.  Otworth (1985) 166 CA3d 452, 458-459; Twaite (1989) 216 CA3d 239, 252. 

 

Here, Plaintiffs have failed to attach a copy of the written agreement or to set forth the relevant terms in haec verba or according to their legal effect.  Additionally, since the First Amended Complaint alleges that the underlying contract was between Plaintiffs and the Sellers, not Plaintiffs and the Seller Agents, Plaintiffs have failed to allege the essential element of a contract between Plaintiffs and the Seller Agents.  See Careau & Co., supra; (FAC ¶26).      

 

Fraud

 

The elements of a fraud cause of action are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity; (c) intent to defraud (i.e., to induce reliance); (d) justifiable reliance; and (e) resulting damage.  Engalla (1997) 15 C4th 951, 974.  Fraud claims must be specifically pled with facts showing how, when, where, to whom and by what means the representations were made.  Lazar (1996) 12 C4th 631, 645. 

 

Plaintiffs have failed to allege specific facts regarding false representations made to them by the Seller Agents with the intent to defraud, or the failure to disclose known facts about the condition of the property.  Under Civil Code §2079(a), a seller’s broker has a duty to “to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to that prospective buyer all facts materially affecting the value or desirability of the property that an investigation would reveal.”  However, such an inspection “does not include or involve an inspection of areas that are reasonably and normally inaccessible to this type of an inspection.”  Civil Code 2079.3.  Therefore, the Seller Agents did not have a duty to climb onto the roof to look for leaks or open up the walls and ceilings to look for mold or rotted wood. Further, Plaintiffs have failed to allege any facts to show that the Seller Agents had actual knowledge of any of the alleged defects and affirmatively failed to disclose these facts to Plaintiffs.   

 

Violation of Civil Code 1102/Negligence

 

The elements of a negligence cause of action are: (1) duty, (2) breach of duty, (3) proximate cause, and (4) damages.  Peredia (2018) 25 CA5th 680, 687.  It appears that Plaintiffs are alleging that the Seller Agents breached their duty under Civil Code 2079(a) “to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to that prospective buyer all facts materially affecting the value or desirability of the property that an investigation would reveal.”  As noted above the inspection required of the Seller Agents “does not include or involve an inspection of areas that are reasonably and normally inaccessible to this type of an inspection.”  Civil Code 2079.3.  Therefore, the Seller Agents had no duty to climb onto the roof to look for leaks or open up the walls and ceilings to look for mold or rotted wood.

 

Civil Battery

 

The elements of a civil battery cause of action are: (1) defendant intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff’s person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to plaintiff.  Piedra (2004) 123 CA4th 1483, 1495.  Plaintiffs have failed to allege that any of the Seller Agents committed an act that resulted in a harmful or offensive contact with the any of the Plaintiffs.  (See FAC ¶¶1-24, 44-45).

 

Intentional Infliction of Emotional Distress

 

The elements of a cause of action of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by defendants; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress.  Hughes (2009) 46 C4th 1035, 1050; Christensen (1991) 54 C3d 868, 903.  In order to recover emotional distress damages for injury to property, there must be a preexisting relationship between the parties or an intentional tort.  Lubner (1996) 45 CA4th 525, 532; Cooper (1984) 153 CA3d 1008, 1012.

 

Plaintiffs have failed to allege facts which show the type of outrageous conduct by the Seller Agents which caused Plaintiffs to suffer damage which is required to state a claim for intentional infliction of emotional distress.  See Ragland (2012) 209 CA4th 182, 203-204.  Nor have Plaintiffs alleged facts to establish any preexisting relationship between Plaintiffs and the Seller Agents. 

 

Premises Liability

 

Premises liability is a specialized form of negligence which relates to care in managing real property, to prevent risk of unreasonable harm to others.  McIntyre (2014) 228 CA4th 664, 671.  To prevail on a claim for premises liability, a plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant's negligence was a substantial factor in causing plaintiff's harm.  See CACI 1000.  A defendant is negligent in the use or maintenance of the property if “(1) [a] condition on the property created an unreasonable risk of harm; (2) [the defendant] knew or, through the exercise of reasonable care, should have known about it; and (3) [the defendant] failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.  CACI 1003.

 

The Seller Agents did not own or control the subject property.  The Seller Agents were merely the brokers/agents for the Sellers.

 

Conversion 

 

While the caption of the First Amended Complaint includes conversion as the purported 5th cause of action, no such claim appears in the body of the First Amended Complaint. 

 

CONCLUSION

 

Plaintiffs have failed to allege sufficient facts to state any of the claims asserted against the Seller Agents in the First Amended Complaint.  Additionally, the First Amended Complaint is  uncertain with regard to the claims against the Seller Agents.  Therefore, the demurrer is sustained.

While there is a liberal policy of allowing leave to amend, Plaintiffs have now had two opportunities to try to plead their claims and have failed to adequately do so.  The First Amended Complaint suffers from the same defects as the original complaint.  Additionally, this is the third  demurrer to which Plaintiffs have failed to file any opposition or response indicating that they can cure the defects in their pleading.  (See 10/6/24 Minute Order, p.2; 3/18/24 Minute Order, p.2, p.5).  Based on the foregoing, the demurrer is sustained without leave to amend.

 

Based on the sustaining of the demurrer as to the entirety of the First Amended Complaint, the motion to strike is placed off calendar as moot.