Judge: Peter A. Hernandez, Case: 24STCV03954, Date: 2024-09-06 Tentative Ruling
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Case Number: 24STCV03954 Hearing Date: September 6, 2024 Dept: 34
Franco, et al. v. Moreno, et al. (24STCV03954)
Defendants A&S Wholesale Solutions Inc., Frank Atilano, Bella Casias LLC, Isidro Jimenez, Master 21 Realty, and Mora Ariel Angel Perez’s Demurrer to First Amended Complaint is SUSTAINED with 20 days leave to amend.
Background
On
August 25, 2023, Plaintiffs purchased the real property located at 5918 South
Van Ness Ave, Los Angeles, CA 90047 (the “Property”). Defendants Marcus Moreno
(“Moreno”), Master 21 Realty (“Master”), Bella Casias, LLC (“Bella Casias”),
Frank Atilano (“Atilano”), A&S Wholesale Solutions, Inc. (“A&S”), Ariel
Angel Perez Mora (“Mora”), Isidro Jimenez (“Jimenez”), and Alberto Musus
(“Musus”) (collectively, “Defendants”) made false misrepresentations to
Plaintiffs about the quality and condition of the Property, which suffered from
a sewer line breakage.
On April 5, 2024,
Plaintiffs filed the operative First Amended Complaint (“FAC”), alleging causes of
action for:
(1)
Negligence;
(2)
Professional Negligence;
(3)
Fraud;
(4)
Negligent Misrepresentation;
(5)
Breach of Contract;
(6)
Fraudulent Concealment;
(7)
Constructive Fraud;
(8)
Negligent Infliction of Emotional
Distress; and
(9)
Breach of Fiduciary Duty.
A Case Management Conference is set for September 6, 2024.
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].)
Meet and Confer
Before filing a demurrer, the demurring party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Proc., § 430.41.) However, “[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).)
Counsel for Master, Bella Casias, Atilano, A&S, Mora, and Jimenez submits a declaration attesting to meet and confer efforts made prior to the filing of the instant demurrer. Specifically, Juan Dotson attests that he sent a meet and confer letter regarding the FAC and spoke with Plaintiffs’ counsel on May 8, 2024 to address those concerns. (Dotson Decl., ¶¶5-7.)
Therefore, Defendants Master, Bella Casias, Atilano, A&S, Mora, and Jimenez have sufficiently met and conferred as required under Code of Civil Procedure section 430.41.
Discussion
Defendants Master, Bella Casias, Atilano, A&S, Mora, and Jimenez (“Selling Defendants” or “Moving Parties”) demur to the entire FAC, pursuant to Code of Civil Procedure Section 430.10, subdivisions (e) and (f), on the basis that these causes of action fail to state facts sufficient to constitute a cause of action and are uncertain.
The FAC makes the following general allegations:
Plaintiffs decided to purchase a home
by pooling their resources and incomes together. (FAC ¶10.) Furthermore,
Plaintiff were represented by Moreno during the contract negotiations for the
purchase of the Property. (FAC ¶11.) Moreover, Moreno made positive comments
about the Property being very well renovated. (FAC ¶13.) Additionally, Musus
conducted an inspection of the Property and said due to the topography of the
land there could be flooding on the driveway and could cause moisture damage.
(FAC ¶14.) Similarly, the sewer line inspectors were unable to use their
equipment to check the sewer line due to both bathrooms being connected to the
same drain line and the toilets being “back to back.” (FAC ¶15.) The sewer line
inspectors recommended installing a clean out and to separate the bathroom
drainage. (FAC ¶15.) The seller received the list of repairs in a contingency
documents and answered it was too late to make any repairs. (FAC ¶16.) On
October 13th, Plaintiffs did laundry and the sewer got backed up causing
black water to come out the shower drains. (FAC ¶17.) On October 27th,
the plumbing company came and inspected the toilets and determined the sewer
lines were broken. (FAC ¶18.) Plaintiffs hired another plumbing company to who
showed them the galvanized pipe was broken. (FAC ¶21.) Plaintiffs also hired
some contractors to repair the bathroom and discovered rotting beans,
unpermitted repairs to the structure, and water damage. (FAC ¶¶22-23.)
First Cause of Action for Negligence
“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)
The FAC re-alleges and incorporates by reference paragraphs 1-23. (FAC ¶24.) However, the FAC fails to allege any facts showing a duty owed by the Selling Defendants to Plaintiffs. (FAC ¶26.) The FAC merely alleges that Defendants (including Selling Defendants) were negligent, Plaintiffs suffered harm, and Defendants’ negligence was a substantial factor in causing Plaintiff’s harm.
Thus, the demurrer to the first cause of action is SUSTAINED with 20 days leave to amend.
Second Cause of Action for Professional Negligence
“The elements of a claim for professional negligence are: ‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.’” (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095.)
Similarly, the FAC alleges that Defendants each had a duty of care when employed by Plaintiffs. (FAC ¶28.) However, the FAC does not plead any facts demonstrating that Selling Defendants were employed by Plaintiffs. Furthermore, the FAC fails to allege any facts supporting that Selling Defendants’ professional capacity as real estate brokers give rise to a specific duty as it pertains to the purchase transaction at issue.
Thus, the demurrer to the second cause of action is SUSTAINED with 20 days leave to amend.
Third Cause of Action for Fraud
“The essential elements of fraud, generally, are (1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211.) “Each element must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action, although less specificity is required if the defendant would likely have greater knowledge of the facts than the plaintiff.” (Id.)
Likewise, the FAC simply alleges Selling Defendants and Musus all made misrepresentations regarding the quality and condition to the Property they knew to be false when made, were made to induce reliance, and Plaintiffs justifiably relied on these statements. (FAC ¶) The FAC is completely devoid of any particular facts regarding what exact statements were made to Plaintiffs by Selling Defendants, when these statements were made, and which of the Selling Defendants made such statements.
Thus, the demurrer to the third cause of action is SUSTAINED with 20 days leave to amend
Fourth Cause of Action for Negligent Misrepresentation
“The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’” (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50.)¿ “Each element in a cause of action for. . . negligent misrepresentation must be factually and specifically alleged.” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 [citation omitted].)
As discussed above, the FAC alleges in a conclusory manner that Selling Defendants made negligent/false misrepresentations to Plaintiffs about the quality and condition of the Property to induce reliance. (FAC ¶¶34, 37.)
Thus, the demurrer to the fourth cause of action is SUSTAINED with 20 days leave to amend.
Fifth Cause of Action for Breach of Contract
“Establishing that claim requires a showing of “(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (D’Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) “Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458–459.)¿
Here, the Disclosure Regarding Real Estate Agency Relationship document is attached to the FAC. (FAC, Ex. 1.) Nonetheless, the FAC merely alleges that Defendants failed to do something required of the contract or did something that was prohibited, which was a substantial factor in causing Plaintiffs harm. (FAC ¶39.) The FAC is devoid of any facts concerning what exactly Defendants failed to do or did that was prohibited pursuant to Disclosure Regarding Real Estate Agency Relationship document.
Thus, the demurrer to the fifth cause of action is SUSTAINED with 20 days leave to amend.
Sixth Cause of Action for Fraudulent Concealment
“The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. [Citation.]” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.) The facts constituting the alleged fraud must be pled with specificity not is a general or conclusory matter. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) However, “[l]ess specificity should be required of fraud claims ‘when “it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,”[citation].’” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.)
As explained above, the FAC is devoid of any facts alleging what Selling Defendants failed to disclose to Plaintiffs, when the purported concealment occurred, and which Selling Defendant concealed the purported material fact from Plaintiffs. (FAC ¶43.)
Thus, the demurrer to the sixth cause of action is SUSTAINED with 20 days leave to amend.
Seventh Cause of Action for Constructive Fraud
“Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship. [Citation.] [¶] [A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent.” (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.)
Here, the FAC alleges that Selling Defendant each had a fiduciary or confidential relationship with Plaintiffs without providing any facts as to how this fiduciary or confidential relationship came about. (FAC ¶46.)
Thus, the demurrer to the seventh cause of action is SUSTAINED with 20 days leave to amend.
Eighth Cause of Action for Negligent Infliction of Emotional Distress
“ ‘ “[The] negligent causing of emotional distress is not an independent tort but the tort of negligence. …” ’ ” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) Its elements are the same: duty, breach of duty, causation, and damages. (Ibid.) A plaintiff may recover pain and suffering damages, including emotional distress damages, in an “ordinary” negligence action. (E.g. Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 299-300.) What sets a negligent infliction of emotional distress claim apart is that it permits recovery where a plaintiff has suffered only emotional distress, not any other harm. In the absence of physical injury, negligent infliction of emotional distress can be imposed only in two circumstances: (1) “bystander” situations, where an individual witnesses an injury to a closely-related third party, and (2) “special relationships”, where the tortfeasor owes the victim a special duty, as for instance a fiduciary or guardian. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 884; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073).
The FAC does not allege Plaintiffs witnessed a closely-related third party get injured. (FAC ¶47.) Further, the FAC fails to allege any facts establishing a special relationship between Plaintiffs and Selling Defendants giving rise to a duty based on Plaintiffs’ emotional well-being.
Thus, the demurrer to the eighth cause of action is SUSTAINED with 20 days leave to amend.
Ninth Cause of Action for Breach of Fiduciary Duty
“The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (O’Neal v. Stanislaus County Employees' Retirement Assn. (2017) 8 Cal.App.5th 1184, 1215.)
Similar to the seventh cause of action, the FAC merely alleges that Selling Defendant each had a fiduciary or confidential relationship with Plaintiffs. (FAC ¶¶49-50.)
Thus, the demurrer to the ninth cause of action is SUSTAINED with 20 days leave to amend.