Judge: Peter A. Hernandez, Case: 21PSCV00986, Date: 2022-09-08 Tentative Ruling

Case Number: 21PSCV00986    Hearing Date: September 8, 2022    Dept: O

1.          Defendants Intero Real Estate Services’, Danny Morel’s and Anthony Morel’s Demurrer to Plaintiffs’ Complaint is SUSTAINED. The court declines to rule on the demurrer as it pertains to Sandy Angie Hernandez. The court deems Plaintiffs’ purported First Amended Complaint filed August 29, 2022 to be the operative pleading.

2.          Defendants Intero Real Estate Services’, Danny Morel’s and Anthony Morel’s Motion to Strike Portions of Plaintiffs’ Complaint is DENIED as MOOT. The court declines to rule on the motion to strike as it pertains to Sandy Angie Hernandez.

Background   

Plaintiffs Ernesto R. Soriano and Ana M. Soriano (collectively, “Plaintiffs”) allege as follows: Plaintiffs purchased the property located at 147 North Barbara Avenue, Azusa, California 91702 (“subject property”) from Ricardo Castaneda and Teresa Castaneda (“Sellers”). Sellers failed to disclose that certain work on the subject property had been done without inspections and/or permits.

On November 24, 2021, Plaintiffs filed a complaint, asserting causes of action against Sandy Angie Hernandez (“Hernandez”), Darcy Lynn Woolman (“Woolman”), Dale Jonathon Miller (“Miller”), Sellers, Woolman Realty Group (“WRG”), Intero Real Estate Services (“Intero”), Danny Morel (“D. Morel”), Anthony Morel (“A. Morel”), Corinthian Title Company, Inc., Expreal, Inc. dba Century 21 Experience) (sued as Century 21 Experience) and Does 1-100 for:

1.                  Breach of Fiduciary Duty of Care and Loyalty

2.                  Intentional Misrepresentation

3.                  Negligent Misrepresentation

4.                  Fraud—Concealment

5.                  Breach of Contract

6.                  Breach of Contract

7.                  Rescission of Purchase Agreement

8.                  Unfair Competition (Bus. & Prof. Code §§ 17200 et seq.)

9.                  Breach of Duty of Disclosure

On April 13, 2022, Hernandez’s default was entered.

On June 6, 2022, Woolman, Expreal, Inc. dba Century 21 and Miller filed a cross-complaint, asserting causes of action against Hernandez, Sellers, Intero, D. Morel, A. Morel and Roes 1-50 for:

1.                  Comparative Equitable Indemnity

2.                  Contribution

3.                  Declaratory Relief

On July 21, 2022, Plaintiffs dismissed Woolman, Miller and WRG, with prejudice. On July 22, 2022, Plaintiffs dismissed Century 21 Experience, with prejudice.

On August 23, 2022, an “Order Re: Application for Determination of Good faith Settlement Pursuant to Code of Civil Procedure Section 877.6(a)(2) by Defendants/Cross-Defendants. Expreal Inc. dba Century 21 Experience, Darcy Lynn Woolman and Dale Jonathon Miller” was filed.

On August 25, 2022, Woolman, et al. dismissed their June 6, 2022 cross-complaint, without prejudice.

On August 29, 2022, Plaintiffs purported to file a First Amended Complaint.

A Case Management Conference is set for September 8, 2022.

1.         Demurrer

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain (Code Civ. Proc., § 430.10, subds. (e) and (f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Intero, D. Morel, A. Morel and Hernandez demur, per Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the first through ninth causes of action in Plaintiffs’ complaint, on the basis that they each fail to state facts sufficient to constitute causes of action and are uncertain.

At the outset, the court notes that Hernandez’s default was entered on April 13, 2022. It has not been set aside, via stipulation or motion, as of this date. The court, then, declines to rule on the demurrer as it pertains to Hernandez.

The court further notes that on August 29, 2022, Plaintiffs purported to file a First Amended Complaint. Pursuant to Code of Civil Procedure § 472, “[a] party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. . .”

Plaintiffs’ opposition to the instant demurrer/motion to strike was due August 25, 2022; as such, the August 29, 2022 filing, which was not accompanied by a stipulation from the parties, is untimely. More importantly, however, Plaintiffs have ignored the fact that Sellers already answered the complaint on April 25, 2022.

Regardless, the court will construe Plaintiffs’ August 29, 2022 filing as a concession that the instant demurrer has merit. The demurrer is sustained on this basis, and the court deems Plaintiffs’ purported First Amended Complaint filed August 29, 2022 to be the operative pleading.

2.         Motion to Strike

Based upon the ruling made on the demurrer, the motion to strike is denied as moot as to Intero, D. Morel and A. Morel. The court declines to rule on the motion to strike as it pertains to Sandy Angie Hernandez.