Judge: Shirley K. Watkins, Case: 22VECV00596, Date: 2022-10-17 Tentative Ruling

Case Number: 22VECV00596    Hearing Date: October 17, 2022    Dept: T

            [TENTATIVE] ORDER:  Defendant Dorothy Schwartz’s, as Trustee, Demurrer to the Complaint is OVERRULED.  Defendant Dorothy Schwartz, as Trustee, is ordered to file an Answer within 20 days.

Introduction

Defendant Dorothy Schwartz, as Trustee (Defendant,) demurs to Plaintiff Earl M. Appleby's, as Trustee (Plaintiff) Complaint.  Defendant’s Demurrer places into issue the third cause of action (COA) for Civil Code section 1102 et seq. violation, the fourth COA for failure to disclose; and the fifth COA for fraud.

            Discussion 

            Defendant, as the seller of Plaintiff’s property, asserted that she satisfied her duty to disclose by answering several questions found in the Transfer Disclosure Statement (TDS) in the affirmative and expressly stated “Common Fence, Zero Lot Line, Lake Lindero HOA + CCR’s Lake, Community pool tennis, golf.”  (See Compl. Exh. C, pg. 2, sec. C, nos. 2, 11-14.)  Defendant cited to Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399 (Assilzadeh) to support her assertion that her disclosures were sufficient to put Plaintiff on inquiry notice of the dispute.  However, the disclosures in Assilzadeh are distinguishable from the disclosures cited by Defendant in the Demurrer.  During escrow, Mr. Assilzadeh was “verbally informed … of the litigation instituted by the homeowners' association against the developer and its settlement.”  (Id. at pg. 407.)  Further, Mr. Assilzadeh received a broker's inspection statement stating: “Broker strongly advises Buyer to select professionals with the appropriate qualifications to conduct inspections/investigations of the conditions of all aspects of the property.... Buyer should be aware of lawsuit brought by HOA against builder for defects. Lawsuit has been settled for 5.1 million dollars.”  (Ibid.)  The statements provided to Mr. Assilzadeh expressly notified him of litigation.  In the instant action, the five questions in the TDS and Defendant’s explanation for the “Yes” responses make no express reference to any property line dispute or claim that Plaintiff’s patio encroached upon Co-Defendant Linda and Raymond Hepinstall’s property.  Merely disclosing a zero-lot line would not place anyone on notice of any property line dispute.    Defendant’s argument that she complied with her disclosure duties is unpersuasive at this pleading stage.  The court cannot say that on the allegations of the complaint and the applicable law that the demurrer should be sustained.

            Defendant then argued that the three COAs lack specific fact pleading.  However, the arguments presented by Defendant only relate to the fourth and fifth COAs for fraud.  Because there is no argument as to the third COA for the statutory violation, the demurrer to the third COA is unfounded. 

As to the two fraud-based COAs, Defendant argues a lack of specificity.  Plaintiff expressly alleges the fraud at issue is concealment of the Boundary Dispute.  (Compl. pars. 72, 81.)  Plaintiff’s allegation as to the concealed fact is sufficiently pled.  Defendant further argues lack of specific fact pleading as to knowledge.  However, Plaintiff alleged that the boundary dispute was “common knowledge among the local neighbors.”  (Compl. par. 30.)  The inference from this allegation is that the boundary dispute was an ongoing dispute prior to Plaintiff’s purchase of the house.  Plaintiff’s allegations to support the two fraud claims are sufficiently pled. 

Plaintiff need not specifically plead the how, what, where, to whom and by what means of the representation because the allegation is concealment.  These pleading requirements only apply to active deceit. 

Defendant argued that Plaintiff failed to allege how the tort claims are independent of the contract.  Preliminarily, the Court notes that the COAs against Defendant do not include a breach of contract claim.  Further, the fraud-based COAs are alleged to have induced Plaintiff into the purchase agreement.  Because Plaintiff alleges inducement, the fraud-based COAs and the contract are seen to be independent.  Defendant’s argument is not persuasive.

The Demurrer to the Complaint is OVERRULED.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.