Judge: Stephen P. Pfahler, Case: 23CHCV00885, Date: 2023-10-02 Tentative Ruling

Case Number: 23CHCV00885    Hearing Date: October 5, 2023    Dept: F49

Dept. F-49

Date: 10-5-23

Case # 23CHCV00885

Trial Date: N/A

DEMURRER

MOVING PARTY: Defendants, Coldwell Banker Residential Brokerage Company and Mariana Vassilev

RESPONDING PARTY: Plaintiffs, Martin Mikaeili, et al.

RELIEF REQUESTED

Demurrer to the Complaint

·         1^st Cause of Action: Fraud and Concealment

·         2^nd Cause of Action: Negligent Misrepresentation

·         4^th Cause of Action: Constructive Fraud

·         5^th Cause of Action: Unfair Business Practices

·         9^th Cause of Action: Nuisance

Motion to Strike

·         Allegations in Support of, and Claim for, Punitive and Treble Damages

SUMMARY OF ACTION

On January 10, 2021, Plaintiffs Martin and Katrin Mikaeili purchased 10215 Variel Ave., #7, Chatsworth from defendants Jettidy and Melanie Kuch. Sellers were represented by defendants Mariana Vassileu Michael Gilbert working for Coldwell Banker. The property was inspected by defendant Khatri International, Inc. The property was developed by defendants Irving Kovalsky and Angelica Kovalsky, with the common areas of property are governed by defendant Angelica Town Homes HOA. Defendant Stephanie Goralski with defendant Finance of America Mortgage, LLC, conducted the appraisal of the home.

Plaintiffs allege the property was represented as free from defects, especially water intrusion and mold. Upon acceptance of possession of the property, Plaintiffs discovered undisclosed structural defects with the property, which among the problems includes water intrusion and mold.

On March 28, 2023, plaintiffs filed their complaint for Fraud and Concealment, Negligent Misrepresentation, Professional Liability, Constructive Fraud, Unfair Business Practices, Negligence, Strict Liability, Breach of Governing CC&Rs, and Nuisance. On October 2, 2023, the court sustained the demurrer of Angelica Townhomes HOA to the first, second, fourth, and  fifth causes of action for Fraud and Concealment, Negligent Misrepresentation, Constructive Fraud, and Unfair Business Practices, and overruled the demurrer to the eighth cause of action for Breach of Governing CC&Rs. The motion to strike was rendered moot in part, granted as to allegations in support of, and claim for, punitive damages, and denied the motion to strike, and denied as to the claim for attorney fees and “general damages.”

RULING

Demurrer: Sustained with Leave to Amend in Part.

Defendant Coldwell Banker Residential Brokerage Company and Mariana Vassilev brings a demurrer to the first, second, fourth fifth, and ninth causes of action for Fraud and Concealment, Negligent Misrepresentation, Constructive Fraud, Unfair Business Practices, and Nuisance. Defendant contends the challenged causes of action lack factual support. Plaintiff in a one court day, three calendar day late filed opposition contends the operative complaint sufficiently articulate the challenged claims. Defendants in reply reiterate the lack of sufficient facts.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

On October 2, 2023, the court sustained the demurrer to the first, second, fourth, and fifth causes of action, thereby rendering the instant demurrer to the for Fraud and Concealment, Negligent Misrepresentation, Constructive Fraud, Unfair Business Practices moot. The court therefore only considers the demurrer to the nuisance cause of action.

9^th Cause of Action: Private Nuisance

Defendants challenge the complaint on grounds that the complaint insufficiently articulates a private nuisance claim, and instead constitutes a restated negligence claim. Plaintiff in opposition cites to the elements of nuisance, and challenges the argument in the demurrer as seeking to factually adjudicate the claim beyond the articulated claim. Defendants in reply reiterate the lack of specifically articulated conduct constituting nuisance by moving defendants.

A private nuisance arises from the interference with the quiet use and enjoyment of land. (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534.) “Anything which is injurious to health, including … an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…” constitutes a private nuisance. (Civ. Code, §§ 3479, 3481.) “A nuisance may be both public and private, but to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.) The nuisance standard seeks to assign liability on the party(ies) responsible for the harmful conduct, which the court interprets as an element of directing the manner of purported nuisance. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.) Other than the purported participation in the transaction as a broker, nothing in the operative complaint ascribes any specifically wrongful conduct regarding the creation or continued presence of the nuisance. Merely citing the elements and adherence to the standards for review of a pleading in no way relieves a party of the obligation to plead specific facts against the charged party. The demurrer is sustained.

Motion to Strike: Moot.

In summary, the demurrer to the first, second, fourth, and fifth causes of action for Fraud and Concealment, Negligent Misrepresentation, Constructive Fraud, Unfair Business Practices is moot. The court demurrer to the nuisance cause of action is sustained with 27 days leave to amend. The motion to strike is moot.

Plaintiffs may file a single amended complaint as to all parties at the same time. Given the first demurrer was heard three court days prior to the subject hearing, the 27 day leave to amend window is solely and strictly meant to conform with the dates of the prior demurrer in order to insure a single timely responsive pleading. If Plaintiffs somehow seek to interpret the ruling as allowing for two amended pleadings, the court can and will sua sponte review any additionally filed items with the intention of striking the offending pleading. Thus, any confusion or concerns with the single amendment date may be addressed in oral argument, or the court will otherwise assume the parties understand.

Plaintiffs may NOT add new causes of action and are only granted leave to add additional facts. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Any new causes of action added without leave from court are subject to a motion to strike. If Plaintiffs fails to file an amended pleading Coldwell Banker Residential Brokerage Company and Mariana Vassilev is ordered to answer the remaining causes of action pled against them.

Case Management Conference scheduled for February 22, 2024.

Moving party to give notice to all parties.