Judge Michael E. Whitaker, Case Number: 24SMCV05535, Date: 2025-05-06 Tentative Ruling

Judge: Michael E. Whitaker, Case: 24SMCV05535, Date: 2025-05-06 Tentative Ruling

This case arises from a dispute concerning the allegedly defective residential construction of Plaintiffs Traci Pontello and Mark Assante’s home.

On November 8, 2024, Plaintiffs filed suit against Defendants R&R Construction, Inc. dba CJ’s Custom Construction and Christopher J. Rudolph (“Defendants”) alleging seven causes of action for (1) negligence; (2) negligence per se; (3) strict liability (4) private nuisance; (4)[1] breach of express warranty; (5) breach of implied warranty; and (6) negligent misrepresentation.

Defendants now demur to the second and third causes of action for failure to state facts sufficient to constitute a cause of action, pursuant to Code of Civil Procedure section 430.10, subdivision (e). Defendants also move to strike Plaintiffs’ prayer for restitution and disgorgement. Plaintiffs oppose both motions and Defendants reply.

Defendants request judicial notice of the existence, date of filing, and contents, excluding the truth of the statements contained therein, of the Complaint that Plaintiffs filed in this action.

Judicial notice may be taken of records of any court in this state. (Evid. Code, § 452, subd. (d)(1).) Because the Complaint is part of the Court’s record for this case, the Court may take judicial notice of it. (Ibid.) However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].)

Accordingly, the Court takes judicial notice of the existence, date of filing, and contents of the Complaint filed in this matter as a court record, but not the truth of the allegations contained therein, except as to assess instant motions.

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.” (See Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate [or legal] cause between the breach and (4) the plaintiff's injury.” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

“Negligence per se is an evidentiary doctrine, rather than an independent cause of action. It can be applied generally to establish a breach of due care under any negligence-related cause of action.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210 [hereafter Jones].)

“Under the doctrine of negligence per se, compliance with the standard of conduct established by the relevant statute, ordinance, or regulation is adopted as the duty of care.” (Jones, supra, 39 Cal.App.5th at p. 1210.) “This creates a rebuttable presumption of negligence where the statute, ordinance, or regulation is violated.” (Ibid.)

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 218.)

Defendants demur to the second cause of action on the grounds that (1) negligence per se is not an independent cause of action; and (2) Plaintiffs fail to allege any predicate violation of law.

As for Defendants’ first argument, Defendants do not cite to any authority that precludes Plaintiffs from alleging a claim for negligence as two separate causes of action. Nevertheless, as noted by the appellate court in Turner v. Seterus, Inc., “[b]efore we proceed further, we note that ‘the doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.’ Accordingly, we treat plaintiffs’ fourth and fifth causes of action as alleging a single cause of action for negligence.” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534, internal citation omitted.) Here, the Court may treat Plaintiffs’ first and second causes of action as a single cause of action for negligence.

11. Plaintiffs purchased the Property in or around May 2017, for the sum of approximately $6.5 Million. At the time of the sale the Property, no visible signs of water intrusion were observed, and the Property appeared to be in pristine condition. Moreover, no history of water-related or mold issues was disclosed.

12. At the time of purchase, Defendants provided Plaintiffs with a written Builder’s Limited Warranty (the “Warranty”).

13. Among other things, the Warranty provides that “the [Property] will be free from any defect resulting in or causing tangible damage to the roof, walls or foundation of the [Property] which materially diminishes the structural integrity and the load-bearing performance of the [Property] for a period of ten (10) years beginning on the Commencement Date.”

14. The Property, as purchased by Plaintiffs, consists of a three-story residential home. The basement level is partially subterranean. The exterior cladding is smooth stucco with a concealed asphalt impregnated felt water resistant barrier (WRB). The interior walls and ceilings are typical wood stud construction with drywall finish.

15. Beginning in the 2018-2019 rainy season, Plaintiffs began experiencing water intrusion and damage at the Property. In early 2019, water intrusion occurred at the ceiling in both the master bedroom and adjoining master bathroom. Defendants undertook to repair the areas of water intrusion. After performing said repairs, Defendants represented to Plaintiffs that the defects causing the water intrusion and property damage had been corrected and the Property was watertight.

16. Despite Defendants’ representations, during the 2022-2023 heavy rainy season, Plaintiffs noticed that the paint on one of the walls in the basement office appeared to be “bubbling.” Plaintiffs reported the damage to defendants and Defendant Rudolph visited the Property to inspect the damage. After completing his inspection, Defendant Rudolph assured Plaintiffs that the bubbling was not caused by water intrusion, was a simple maintenance issue, and that the wall only needed to be “scraped” and repainted. Defendant Rudolph then advised Plaintiffs to hire a contractor to repaint the wall, which Plaintiffs did in reliance on Defendant Rudolph’s representations.

17. Contrary to Defendants’ representations, during the subsequent 2023-2024 rainy season, Plaintiffs noticed the paint in the basement office was again “bubbling” in the same area that defendants had recommended repainting. At around this time, Plaintiffs also noticed the same type of “bubbling” on a wall in the “bonus” room in the basement.

18. As a result of the water intrusion and resulting damage, Plaintiffs were forced to retain contractors to remediate the affected areas of Property, including, inter alia, emergency water damage mitigation and structural drying.

19. During this period of time, Plaintiffs also discovered other defects, which were raised with the builder and which the builder refused to repair.

20. As a result of the foregoing damage, Plaintiffs were also forced to retain contractors and consultants to investigate and advise them with respect to the source of the water intrusion and damage.

21. In furtherance of that investigation, Plaintiffs conducted water testing on May 8 and 15, 2024. The testing and further investigation revealed significant defects which were concealed, unknown, and undiscovered by Plaintiffs and date back to Defendants’ development and construction of the Property. Moreover, testing and investigation also revealed that, unbeknownst to Plaintiffs, water intrusion and damage had been occurring over the course of multiple recent heavy rain seasons, dating back to the 2018-2019 rainy season.

22. Further investigation and destructive testing also revealed, inter alia, defective waterproofing and resulting damage at the exterior of the subterranean walls, as well as substantial water damage and microbial contamination, and moisture levels supporting fungal rot. For example, the Homeowners have discovered water intrusion and damage in the basement office and “bonus” room, in the kitchen near a kitchen window, and in the upstairs hallway, among other areas.

23. These defects constitute and are evidence of serious structural defects which compromise the integrity and safety of the Property. In connection with this investigation, Plaintiffs also discovered additional extensive water intrusion and damage, including microbial contamination, concealed in other areas of the Property.

24. Plaintiffs are informed and believe, and based thereon allege, that the damages at issue would not have occurred if construction of the Property had been performed within the applicable standard of care.

36. Defendants negligently built, manufactured, constructed, repaired, fabricated, designed, engineered, and improved the Property and, in so doing, violated statutes and regulations.

37. Plaintiffs are informed and believe, and based thereon allege, that as a direct and proximate result of Defendants’ violations of these statutes and regulations, Plaintiffs have incurred and suffered the following nonexclusive list of damages:

(a) Plaintiffs have lost interest in the Property and the value thereof has been reduced and diminished;

(b) Plaintiffs’ have lost interest in the Property and the value thereof will continue to be reduced and diminished for the foreseeable future, even after repairs are made;

(e) Plaintiffs have been required, and will be required, to retain experts and consultants to evaluate the cause of the damages and develop and observe repairs;

(f) Plaintiffs have been required, and will be required, to retain contractors and engineers to rebuild, reconstruct and re-engineer the Property.

38. The injuries suffered by Plaintiffs resulted from the kind of occurrence the statutes are regulations were designed to prevent.

39. Plaintiffs are among the class of persons the statutes and regulations were intended to protect.

Thus, Plaintiffs allege, “Defendants negligently built, manufactured, constructed, repaired, fabricated, designed, engineered, and improved the Property and, in so doing, violated statutes and regulations.” (Complaint ¶ 36.)

The only authority Defendants cite to in support of their argument that Plaintiff must specify the predicate statutes and/or regulations either involved a failure of evidentiary proof at the summary judgment stage (Salinero v. Pon (1981) 124 Cal.App.3d 120, 134 [“no showing of unsatisfactory maintenance of the building has been made” so “a requisite element of negligence per se—the statutory violation—has not been established”]) or at trial (Gett v. Pacific Gas & Elec. Co. (1923) 192 Cal. 621, 627 [“There is no rule of statute or ordinance which prohibits ‘jay-walking’ and it, therefore, is not negligence per se. Whether or not it would be negligence under a given state of facts is a question of fact for the jury.”]) or involved the federal pleadings standard (Steinle v. City and County of San Francisco (N.D. Cal. 2017) 230 F.Supp.3d 994, 1013-1014.) But unlike the federal pleadings standard, California permits the pleading of “ultimate facts” which Plaintiffs have done here.[2] Whether Defendants’ conduct actually violated any statutes or regulations is a factual question to be resolved at later stages of the litigation.

“Generally, to establish a strict products liability claim, the plaintiff must prove that “there was a defect in the manufacture or design of the product and that such defect was a proximate cause of the injuries.” (Sherman v. Hennessy Industries, Inc. (2015) 237 Cal.App.4th 1133, 1151, fn. 7.) With respect to residential housing, the doctrine of strict liability applies only to “mass-produced” homes and does not extend to “the occasional or isolated construction and sale of a residence.” (Oliver v. Superior Court (1989) 211 Cal.App.3d 86, 87-89.)

Defendants demur to the third cause of action on the grounds that Plaintiffs fail to allege their home is “mass-produced.” In the complaint, Plaintiffs allege:

41. Plaintiffs are informed and believe, and based thereon allege, that Defendants designed and manufactured the home purchased by Plaintiffs with the intention that said home would be sold to members of the general public.

42. Plaintiffs are informed and believe, and based thereon allege, that Defendants, and each of them, were mass producers of new residential housing.

43. Plaintiffs are informed and believe, and based thereon allege, that Defendants, and each of them, developed, designed, manufactured, built, improved, and mass produced homes within, inter alia, Los Angeles County, including the Property.

44. Plaintiffs are informed and believe, and based thereon allege, that Defendants, and each of them, knew that the homes that Defendants built for members of the general public, including Plaintiffs, would be purchased and used for purposes of residential housing. Plaintiffs are further informed and believe, and based thereon allege, that Defendants, and each of them, new or reasonably should have known, the members of the general public who purchased residences from Defendants would do so without inspection for the defects set forth above.

45. Plaintiffs are informed and believe, and based thereon allege, that Defendants, and each of them, knew or had reason to know that Plaintiffs would rely on the skill, judgment and expertise of Defendants as developers, and that the planning, design, development, construction and sale of the individual residences would be of merchantable quality and would be reasonably designed, constructed and fit for their intended purposes.

46. Plaintiffs are informed and believe, and based thereon allege, that they did not have an opportunity to participate in the development, design or construction of the Property. Plaintiffs are informed and believe, and based thereon allege, that the Property was sold to Plaintiffs without substantial change in its condition and was utilized for the uses for which it was designed and developed and in the manner for which it was reasonably intended.

47. As developers, mass-producers, manufacturers of component parts and systems, and builders of residential housing, Defendants, and each of them, are strictly liable and responsible to Plaintiffs for the damages suffered as a result of the above described defects or deficiencies.

48. Plaintiffs are informed and believe, and based thereon allege, that as a direct and proximate result of the defective conditions set forth hereinabove, Plaintiffs have suffered damages and are required to repair, restore and/or reconstruct the Property to prevent further damage, or to restore the Property to its proper condition. Plaintiffs will seek leave of court to establish the precise amount of such damages at trial, according to proof.

As such, Plaintiffs sufficiently allege “ultimate facts” that their home was mass-produced for purposes of strict liability. Whether their home was actually mass produced is a question of fact to be resolved at later stages of the litigation.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Defendants move to strike the prayer’s request for restitution and disgorgement on the grounds that Plaintiffs’ Breach of Express and Implied Warranty causes of action presume the existence of an enforceable contract, and the quasi-contractual remedies of restitution and disgorgement are not available when an enforceable contract exists.

But Plaintiffs are permitted to plead alternative or inconsistent theories of liability at the pleadings stage. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388.)

For the reasons stated, the Court overrules Defendants’ demurrer in its entirety. Further, the Court denies Defendants’ motion to strike in its entirety.

Defendants shall file and serve an Answer or Answers to the Complaint on or before May 23, 2025.

Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

[1] The body of the Complaint erroneously lists two “fourth” causes of action and the causes of action listed on the Complaint’s caption page differ from those actually listed in the body of the Complaint.

[2] Ultimate facts are those “constituting the cause of action” or those upon which liability depends, e.g., duty of care, breach of the duty and causation (damages). (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “[T]he term ultimate fact generally refers to a core fact, such as an essential element of a claim. Ultimate facts are distinguished from evidentiary facts and from legal conclusions.” (Central Valley General Hosp. v. Smith (2008) 162 Cal.App.4th 501, 513 [cleaned up]; see also Rodriguez v. Parivar, Inc. (2022) 83 Cal.App.5th 739, 750–751 [“The elements of a cause of action constitute the essential or ultimate facts in a civil case”].)

DEPARTMENT	207
HEARING DATE	May 6, 2025
CASE NUMBER	24SMCV05535
MOTIONS	Demurrer and Motion to Strike Portions of Complaint
MOVING PARTIES	Defendants R&R Construction, Inc. dba CJ’s Custom Construction and Christopher J. Rudolph
OPPOSING PARTIES	Plaintiffs Traci Pontello and Mark Assante