Judge Salvatore Sirna, Case 20STCV23813 2023-02-16 Tentative Ruling

Judge: Salvatore Sirna, Case: 20STCV23813, Date: 2023-02-16 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 20STCV23813 Hearing Date: February 16, 2023 Dept: G

Defendants Pac W. Dong; Clement Ziroli; Clement Ziroli, Jr.; Homeowners Equity Corporation; and Fin-West Group’s Demurrer to Plaintiffs’ Seventh Amended Complaint

Respondent: Plaintiffs Estate of Hugo Rivero, Jr. by and through its successors in interest, Hugo Rivero and Rubidelma Merida Damian; Hugo Rivero; Rubidelma Merida Damian; and Diana Rubi Gamboa

TENTATIVE RULING

Defendants Pac W. Dong; Clement Ziroli; Clement Ziroli, Jr.; Homeowners Equity Corporation; and Fin-West Group’s Demurrer to Plaintiffs’ Seventh Amended Complaint is CONTINUED TO March 6, 2023, at 8:30 a.m., Dept. G (Pomona).

Defendants are also ordered to meet and confer with Plaintiffs’ counsel regarding the demurrer and to file a supplemental declaration describing such meet and confer efforts at least five (5) court days before the next scheduled hearing on the demurrer (on or before February 27, 2023).

BACKGROUND

This is a wrongful death action arising from the tragic drowning of a child. In 2018, Hugo Rivero and Rubidelma Merida Damian (collectively, Buyers) purchased a house in Baldwin Park with a pool for their family, including Diana Rubi Gamboa (Gamboa) and Hugo Rivero, Jr. (Hugo Jr.), a 35-month-old toddler. Buyers were represented by JMA Legacy, Inc.; Luis Eduardo Fajardo; and Sergio Omar Becerra (collectively, Buyers’ Agents) as real estate agents. The property had been sold by Pac W. Dong; Homeowners Equity Corporation; Clement Ziroli; Clement Ziroli, Jr.; and Fin-West Group (collectively, Sellers), who were house flippers and represented by Masters Realty Services, Inc., and Cecilia Gonzalez Alvarez (collectively, Sellers’ Agents). Sellers hired Richard Bash and R B Real Estate Investments, Inc. (collectively, Bash Defendants), as well as S2W Construction, Inc. (S2W Construction), to remodel the Baldwin Park property.

On September 9, 2019, Hugo Jr. was able to gain access to the pool due to a single-feature barrier system and fell into the pool, ultimately suffering brain injuries that were fatal. Prior to purchasing the property, Buyers had informed Buyers’ Agents that they had children, including Hugo Jr. According to the Buyers, Hugo Jr. was able to access the pool undetected through a sliding glass door that provided direct pool access and bypassed the pool’s gate. The Buyers also allege the absence of any first layer of protection or backup drowning prevention safety features.

On June 24, 2020, the Estate of Hugo Rivero, Jr.; the Buyers; and Gamboa (collectively, Plaintiffs) filed a complaint that has since been amended seven times. In the operative Seventh Amended Complaint (7AC) filed by Plaintiffs on January 3, 2023 against Sergio Fernandez, doing business as Bullseye Home Inspector; Buyers’ Agents; Sellers; Sellers’ Agents; S2W Construction; Bash Defendants; and Does 1-50, Plaintiffs alleged the following causes of action: (1) wrongful death: negligence; (2) negligence (negligent infliction of emotional distress – bystander); (3) wrongful death: breach of fiduciary duty and constructive fraud; (4) deceit; and (5) civil conspiracy (deceit).

On January 23, 2023, Sellers filed the present demurrer. Prior to filing on January 6, Sellers’ counsel met and conferred over email with Plaintiffs’ counsel and was unable to reach a resolution. (Lopez Decl., ¶ 3-4.)

A hearing on the demurrer and case management conference are set for February 16, 2023. A hearing on another demurrer by Sellers’ Agents is set for March 6, 2023.

ANALYSIS

Sellers demur to Plaintiffs’ first cause of action (wrongful death), second cause of action (negligent infliction of emotional distress), fourth cause of action (deceit), and fifth cause of action (civil conspiracy – deceit).

For the following reasons, the court finds parties did not adequately meet and confer.

Legal Standard

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) 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.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)

Pursuant to Code of Civil Procedure section 430.41, subdivision (a), prior to filing a demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” This section further provides that “the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” (Code Civ. Proc., § 430.41, subd. (a)(1).)

While Code of Civil Procedure section 430.41, subdivision (a)(4) makes clear failing to meet and confer is not grounds to overrule a demurrer, courts “are not required to ignore defects in the meet and confer process” and if the court determines “no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort.” (Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355 & fn. 3.) ¿

Discussion

In this case, Sellers’ counsel met and conferred with Plaintiffs’ counsel “via e-mail.” (Lopez Decl., ¶ 3.) Because of the statutory requirement that meet and confer efforts be in-person or telephonic, the court finds the parties did not adequately meet and confer. Accordingly, the court finds appropriate a continuance of the hearing on Sellers’ demurrer.

CONCLUSION