Judge Salvatore Sirna, Case 20STCV23813 2023-03-15 Tentative Ruling

Judge: Salvatore Sirna, Case: 20STCV23813, Date: 2023-03-15 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: March 15, 2023 Dept: G

Defendants Richard Bash and R B Real Estate Investments, Inc.’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 Richard Bash and R B Real Estate Investments, Inc.’s Demurrer to Plaintiffs’ Seventh Amended Complaint is SUSTAINED without leave to amend.

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 February 10, 2023, Bash Defendants filed the present demurrer. Prior to filing on February 3, Bash Defendants’ counsel attempted to meet and confer with Plaintiffs’ counsel by sending two emails and leaving a voicemail. (Kassabian Decl., ¶ 3.) However, Bash Defendants’ counsel was unable to get a response from Plaintiffs’ counsel. (Kassabian Decl., ¶ 4.)

A hearing on the demurrer, case management conference, and further status conference re: Status of Parties are set for March 15, 2023.

REQUESTS FOR JUDICIAL NOTICE

Bash Defendants’ requests for judicial notice of this court’s previous rulings in this action are GRANTED. (Bash Defendants’ RJN, Ex. 1-2.)

However, the court DENIES Bash Defendants’ request for judicial notice of a purported residential purchase agreement as this document fails to meet the standard of Evidence Code section 452, subdivision (h). (Bash Defendants’ RJN, Ex. 3) While Bash Defendants relied on Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743 (Scott) to support their request for judicial notice, the court finds that case inapposite. As recently noted in Travelers Indemnity Company of Connecticut v. Navigators Specialty Insurance Company (2021) 70 Cal.App.5th 341, “Scott is inapposite because the document being judicially noticed in that case was a government document and was accordingly governed by Evidence Code section 452, subdivision (c).” (Id., at p. 354.) “[C]ase law holds that ‘the existence of a contract between private parties cannot be established by judicial notice under Evidence Code section 452, subdivision (h).’” (Ibid, quoting Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.)

Plaintiffs’ request for judicial notice of a disclosure form signed by Bash Defendants is also DENIED as it does not meet the requirements of Evidence Code section 452, subdivision (h) as detailed above.

ANALYSIS

Bash Defendants demur to Plaintiffs’ first cause of action (wrongful death: negligence) and second cause of action (negligent infliction of emotional distress). For the following reasons, the court SUSTAINS Bash Defendants’ demurrer to Plaintiffs’ 7AC in its entirety without leave to amend.

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.)¿

Wrongful Death: Negligence (First Cause of Action)

Bash Defendants argue Plaintiffs’ first cause of action for wrongful death through negligence fails to plead sufficient facts to state a claim by failing to establish Bash Defendants owed Plaintiffs a duty. The court agrees.

“The elements of a cause of action for wrongful death are a tort, such as negligence, and resulting death.” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685.) The basic of elements of a negligence claim are (1) duty, (2) breach, (3) causation, and (3) damages. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 480.)

In this case, Plaintiffs allege Bash Defendants owed Plaintiffs two sets of duties. First, because Bash Defendants were involved in the remodeling of the Baldwin Park property, Plaintiffs allege they owed Plaintiffs duties of honesty, diligence, reasonable care to perform work in accordance with safety regulations, and a duty to disclose all reasonably known facts about the Baldwin Park property that materially affected its safety. (7AC, ¶ 11, 13, 22, 36) Second, because Bash Defendants were partners in a business venture with Sellers and allegedly parties to the sale, they owed Plaintiff the duty to perform work in a workmanlike manner, comply with applicable safety regulations, disclose the absence of pool safety features, and exercise reasonable care in researching applicable safety laws and regulations. (7AC, ¶ 12, 17, 36, 37.)

As the court noted in its December 1, 2022, ruling on Bash Defendants’ previous demurrer with regards to Bash Defendants’ duties as a contractor, Bash Defendants cannot be held liable for negligent performance of their construction and remodeling work by Plaintiffs unless the defects are latent. (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466, 1470-1471 (Sanchez).) The court found the lack of proper pool safety measures was a patently obvious defect and Plaintiffs’ 7AC alleges no additional facts that change the court’s finding. (12/1/2022 Ruling, p. 3.) Thus, because Plaintiffs have not pled sufficient facts establishing the absence of pool safety measures was a latent defect that could not be discovered by a reasonably careful inspection, Bash Defendants cannot be held liable for the work they performed for Sellers.

In the court’s December 1, 2022, ruling, the court also noted Bash Defendants did not owe Plaintiffs a duty to disclose the pool safety defects as a dangerous condition because Plaintiffs did not allege the existence of a fiduciary, contract, or business relationship between Plaintiffs and Bash Defendants. (12/1/2022 Ruling, p. 3.) Plaintiffs now allege Bash Defendants were partners in a business venture with Sellers and parties to the sales agreement with Plaintiffs. (7AC, ¶ 37.) However, in a March 6, 2023, ruling on a demurrer to the 7AC brought by Sellers, the court found Sellers had no duty to disclose the defects because they were discoverable and within the diligent observation of the Buyers. (3/6/2023 Ruling, p. 2-3, citing Holmes v. Summer (2010) 188 Cal.App.4th 1510, 1518-1519 [“[W]here the seller knows of facts materially affecting the value or desirability of the property which are known or accessible only to him and also knows that such facts are not known to, or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer.”].) The court also found Buyers were on notice of the defects as they repeatedly requested Sellers and Bash Defendants remediate them. (3/6/2023 Ruling, p. 3, citing 7AC, ¶ 22-24.)

Thus, to the extent Plaintiffs now allege Bash Defendants owed the same duties as the Sellers, the court finds Bash Defendants did not have a duty to disclose the alleged defects for the same reasons, including that they were discoverable and within the diligent observations of the Buyers. Because Plaintiffs have failed to establish Bash Defendants owed Plaintiffs duties as contractors or sellers, Plaintiffs cannot establish a cause of action for negligence against them. Furthermore, because Plaintiffs have amended their complaint more than three times and have not shown there is a reasonable possibility that further amendment can cure the defects noted above, the court declines to grant leave to amend. (Code Civ. Proc., § 430.41, subd. (e)(1).)

Accordingly, Bash Defendants’ demurrer to Plaintiffs’ first cause of action is SUSTAINED without leave to amend.

Negligent Infliction of Emotional Distress (Second Cause of Action)

Bash Defendants contend Plaintiffs’ second cause of action for negligent infliction of emotional distress (NIED) fails to plead sufficient facts to state a claim. The court agrees.

Because Plaintiffs failed to establish a claim for wrongful death against Bash Defendants for lack of duty, Plaintiffs’ NIED claim also necessarily fails. Such a claim requires emotional distress caused by “observing the negligently inflicted injury of a third person.” (Thing v. La Chusa (1989) 48 Cal.3d 664, 667.) Furthermore, because Plaintiffs have amended their complaint more than three times and have not shown there is a reasonable possibility that further amendment can cure the defects noted above, the court declines to grant leave to amend. (Code Civ. Proc., § 430.41, subd. (e)(1).)

Accordingly, Bash Defendants’ demurrer to Plaintiffs’ second cause of action is SUSTAINED without leave to amend.

CONCLUSION

Based on the foregoing, Bash Defendants’ demurrer to Plaintiffs’ 7AC is SUSTAINED in its entirety without leave to amend.