Judge Melvin D. Sandvig, Case Number: 23CHCV00954, Date: 2025-02-28 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 23CHCV00954, Date: 2025-02-28 Tentative Ruling

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Case Number: 23CHCV00954 Hearing Date: February 28, 2025 Dept: F47

Dept. F47

Date: 2/28/25

Case #23CHCV00954

MOTION TO SET ASIDE/VACATE DISMISSAL

Motion filed on 12/17/24.

MOVING PARTY: Plaintiffs Delia Gonzalez, Monica Gonzalez and Jessica Acosta

RESPONDING PARTY: Defendants Ivan Escobar and B & M Home Inspection

RELIEF REQUESTED: An order vacating/setting aside the ruling sustaining without leave to amend the demurrer of Ivan Escobar and B & M Home Inspection.

RULING: The motion is placed off calendar.

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).

Plaintiffs allege that, on 12/1/22, the Sellers and their agents, who are also named as defendants, 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 (Escobar) of D&M Home Inspections (D&M) 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 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 demurrer of Defendants Charla Gonzalez, Virginia Rios and Re-Max All Pro to the entire complaint with leave to amend. On 11/28/23, Plaintiffs, still representing themselves, filed their First Amended Complaint which, like the original complaint, contained a caption which set forth different causes of action than the body of the First Amended Complaint. The caption of the First Amended Complaint listed the same causes of action as the original complaint and the body of the First Amended Complaint contained the same six causes of action as the original complaint. The First Amended Complaint, again, like the original complaint, did not specify against which defendants each cause of action was alleged.

On 3/18/24, the Court sustained the demurrer of Ivan Escobar and B & M Home Inspections to the entire First Amended Complaint without leave to amend. (See 3/18/24 Minute Order). On 4/17/24, the Court entered a judgment of dismissal as against these defendants. Notice of same was served on Plaintiffs on 4/30/24. (See Notice of Entry of Judgment filed on 4/30/24).

On 12/17/24, Plaintiffs filed the instant motion seeking an order vacating/setting aside the ruling sustaining without leave to amend the demurrer of Ivan Escobar and B & M Home Inspection. No proof of service is attached to the motion nor has a proof of serve for the motion been separately filed. See CRC 3.1300(c) (proof of service for motion papers must be filed no later than 5 court days before the hearing date). There is no opposition or response to the motion from Defendants Ivan Escobar and/or B & M Home Inspection to cure the defect in notice.

Therefore, the motion is placed off calendar.