Judge Robert S. Draper, Case 19STCV29555 2023-05-04 Tentative Ruling

This is an action for breach of contract. The operative Second Amended Complaint (“SAC”) alleges as follows. Defendants Danny Gerardi (“Gerardi”) and Thomas Atwood (“Atwood” and collectively with Gerardi, the “Sellers”) hired Defendant Rodeo Realty, Inc. (“Rodeo”) in 2011-2013 and 2017 to help sell their house. (SAC ¶¶ 12-13.) Defendant Douglas Elliman of California, Inc. (erroneously sued as Douglas Elliman, Inc.) (“Douglas Elliman” collectively with Rodeo, the “Brokers”) became a joint listing broker with Rodeo on the Property before November 2018. (SAC ¶ 14.) Plaintiffs Randy and Sarah Greenberg (collectively, the “Greenbergs”) toured the home and wanted to purchase it with the window treatments; they asked the Brokers to make sure the owners left the curtains. (SAC ¶¶ 15-16.) The window treatments, worth $225,000, were ultimately not included in the sale. (SAC ¶¶ 23-25.)

The Greenbergs allege that they would have made a lower offer had they known the curtains would not be included. (Ibid.) The Sellers have refused to return the window treatments or lower the price of the house. (Ibid.)

On April 7, 2021, the Court overruled Rodeo’s Demurrer to the Second Amended Complaint as to the Second Cause of Action and sustained Rodeo’s Demurrer as to the Third Cause of Action.

Rodeo moves for Summary Judgment of the Second Cause of Action, the only cause in which Rodeo is a named Defendant, or in the alternative, summary adjudication on the issue of punitive damages.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Neither a moving nor responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)

Though the Greenbergs do not specify what species of fraud is alleged, the parties briefed the matter as if they alleged fraud by omission. Indeed, this is the only type of fraud that the Greenbergs may properly allege, as they do not dispute that Rodeo’s agent, Brandon Assanti (“Assanti”), “never indicated to Plaintiffs or Plaintiff’s broker that the curtains were included in their purchase of the Subject Property.” (UMF 21.)

“The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 131.) Fraud by concealment requires allegations demonstrating the defendant was under a legal duty to disclose the allegedly omitted or concealed facts. (See Los Angeles Memorial Coliseum Commission v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 831.)

Here, Rodeo argues that Plaintiff cannot present evidence demonstrating a genuine issue of material fact regarding Assanti’s knowledge that Plaintiffs demanded/believed that the window treatments be/were included in the purchase of the Subject Property. Rodeo provides the declaration of Assanti as well as the depositions of the Greenbergs and others in support of their motion.

Rodeo notes that the Greenbergs allege that they made two requests that the window treatments be included in the sale; first, at the initial walkthrough, where Assanti was not present (UMF 8); second, on November 28, 2018, when Sarah Greenberg requested that Assanti confirm the window treatments would be included in the sale, and Assanti informed Ms. Greenberg that they would not. (UMF 16.)

Rodeo contends that only Jacob Greene (“Greene”), who is an agent of Elliman and not affiliated with Rodeo, was present at the initial walkthrough where the Greenbergs inquired as to the window treatments. (UMF 8.) The Greenbergs do not dispute this. Rodeo contends that Greene informed Assanti that the Greenbergs inquired as to the window treatments but did not demand/expect that they be included. (Assanti Decl. ¶ 11.) Assanti attests that he asked the Sellers about the status of the curtains, and they told Assanti that the curtains were in the process of being sold by the Sellers’ cousin. (Ibid.) Assanti then relayed this information to Greene and had no further communications regarding the treatments with Greene. (Ibid.)

In Opposition, the Greenbergs contend that Greene passed the demand that the curtains be included to Assanti, and that Assanti intentionally remained silent about the issue in effect giving the Greenbergs the impression that the curtains were included when he knew that they were not included in the sales price. (RSE 9.) To support this contention, the Greenbergs cite to Randy and Sarah Greenberg’s depositions, and to Greene’s deposition. (RSE 8-9).

Sarah Greenberg testified that the first time she encountered Assanti in person, on November 28, 2018, during the final walk through of the house, he told her that the curtains were not included in the sale.

Ms. Greenberg testified that on November 28, 2018, while doing a walk though of the house, she asked Assanti about where the curtains(which she had previously seen stored in closets of the home on 11/2) were. (Greenberg Depo, pg. 193 ln. 22-194 ln. 1) According to Ms. Greenberg, Assanti stated that he would check with the seller about selling the curtains to her. (Greenberg Depo.,pg. 193, lns. 6-9.) According to Mrs. Greenberg, she stated that the curtain belonged to the house.( Greenberg, Depo. pg. 193, lns. 12-16.) According to Mrs. Greenberg, Assanti then told her that the curtains were not included in the sale. (Greenberg Depo., pg. 196, lns. 15-18.)

The uncontroverted evidence shows that Assanti immediately told Ms. Greenberg that the curtains were not part of the sale on November 28, 2018. Hence, there was no possible fraud or deceit as of that time.

The issue is what happened between November 2, 2018 and November 27, 2018. Plaintiffs provide no evidence demonstrating that Assanti knew prior to November 28 that Plaintiffs believed that the curtains were included in the sales price.

Plaintiffs contend that Greene’s deposition provides evidence of such knowledge on the part of Assanti. However, Greene attested that Sarah Greenberg “just told me that she was interested in window treatments, so I said, ‘Okay, I’ll ask the owner.’ I went to Brandon Assanti who was the liaison to the owner, and he handled everything from there regarding the window treatments.” (Green Depo.; Exh. 4 at p. 97.) Later, he states that Sarah Greenberg “asked me to inquire with the—and ask about the curtains. So, I asked Brandon to ask the seller.” (Id. at p. 99.)

Nowhere in any of the Greenberg’s cited testimony or Greene’s cited testimony does any party state that Assanti had any knowledge that Sarah Greenberg or her husband demanded that the curtains be included as a condition of the sale or expected the window treatments be included in the sale.

It is undisputed that the only time that the Greenbergs directly communicated to Assanti that they anticipated the window treatments would be included in the transaction was on November 28, 2018. (UMF 18.) And, though the Greenbergs contend that this sentiment was expressed to Assanti through Greene earlier, they are unable to provide any evidence demonstrating such. Nor is there any evidence presented from which a reasonable inference could be drawn that this is the case.

To put it succinctly, there is a genuine issue of material fact regarding what Ms. Greenberg said to Greene on November 2, 2018 regarding the curtains and their inclusion in the sale. However, there is no genuine issue of material fact regarding what Greene told Assanti about Plaintiffs’ demand/stated expectation that the curtains would be included in the sales price for the property. Both Greene and Assanti agree that what they discussed was Plaintiffs’ interest in the curtains, not any demand/expectation that the curtains would be included as part of the property for the sale.

Looking at the rest of the evidence, there is no basis for drawing a reasonable inference that Plaintiffs’ demand/expectation was conveyed to Assanti prior to November 28, 2018. None of the agreements signed by the parties address the curtains specifically. (Defendant’s Exhibits 6 through 11.) Moreover, the email exchange between Assanti and Ms. Greenberg on November 29, 2018 does not create an inference in Plaintiffs’ favor.

On November 29, 2018, Assanti emailed Ms. Greenberg. (Defendant’s Exhibit 12.) Here, Assanti indicated that he was following up on Ms. Greenberg’s inquiry about the curtains the day before. Assanti stated that the seller’s cousin had promised to sell the curtains to a couple for $30,000. Assanti indicated that he told the seller of the house to have his cousin wait on the sale in case Ms. Greenberg wished to purchase the curtains. Assanti also indicated that he might be able to get the seller of the house to reduce the price of the curtains a bit. (Exhibit 12, page 602 of the PDF) Nothing about this email indicates that Assanti had knowledge of Plaintiffs’ alleged demand/understanding that the curtains were included in the sales price of the property prior to November 28, 2018.

In her email response, Ms. Greenberg does not indicate that she has any basis for believing that Assanti did have any such knowledge. Rather, she references her assumption that the curtains would be staying with the house based on her stated interpretation of the purchase agreement and her understanding that generally that curtains are part of a purchase agreement unless stated otherwise. (Exhibit 12.)