Judge: Theresa M. Traber, Case: 21STCV39278, Date: 2025-02-04 Tentative Ruling

Case Number: 21STCV39278    Hearing Date: February 4, 2025    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 4, 2025                               TRIAL DATE: June 3, 2025

CASE:                         Loretta L. Tobin v. Ernst & Haas Management Co., Inc., et al.

CASE NO.:                 21STCV39278

DEMURRER TO FIRST AMENDED COMPLAINT; MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

MOVING PARTY:               Defendant Solimar Homeowner’s Association

RESPONDING PARTY(S): No response on eCourt as of 01/30/25.

CASE HISTORY:

• 10/05/21: Complaint filed.
• 12/29/21: Linda J. Vitz substituted in for Doe Defendant #1
• 08/17/23: Solimar Homeowners Association substituted in for Doe Defendant #2.
• 05/28/24: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a habitability defect action. Plaintiff leased an apartment from Defendants that she alleges contained toxic mold.

Defendant Solimar Homeowner’s Association demurs to the First Amended Complaint and moves to strike portions of the Complaint.

TENTATIVE RULING:

Defendant Solimar Homeowner’s Association’s Demurrer to the First Amended Complaint is SUSTAINED without leave to amend.

Defendant’s Motion to Strike is MOOT.

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DISCUSSION:

Demurrer to First Amended Complaint

            Defendant Solimar Homeowner’s Association demurs to the Complaint in its entirety.

Legal Standard

A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) 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, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer.  (Code Civ. Proc., § 430.41(a)(4).)

The Declaration of Attorney Andrew Scoble states that the parties met and conferred telephonically on October 18, 2024, ahead of formal service of the First Amended Complaint, in an effort to informally resolve the disputes raised by this demurrer. (Declaration of Andrew D. Scoble ISO Dem. & Mot. ¶ 5.) Attorney Scoble describes the Parties’ discussions in detail, and states that the parties were not able to reach an agreement regarding Defendant’s objection to the First Amended Complaint. (Id. ¶¶ 5-6.) Defendant has satisfied its statutory meet-and-confer obligations.

Request for Judicial Notice

            Defendant requests that the Court take judicial notice of (1) a Grant Deed conveying ownership of Lot 6 of Tract No. 13628, commonly known as 7683 Yorktown Avenue, Huntington Beach, the Subject Property, to Linda J. Vitz recorded on May 8, 2000 in the Orange County Recorder’s Office as Instrument No. 20000239290; (2) a Grant Deed conveying Lot 10 of the same parcel to Solimar recorded on August 8, 1990 as Instrument No. 90-418891; (3) the Tract Map for Tract No. 13628 recorded on June 28, 1989 as Instrument No. 89-342013; (4) the Grant Deed conveying Lot 6 from Linda J. Vitz to Thomas A. Brown recorded on November 15, 2021 as Instrument No. 2021000700361; and (5) the Fixed Term Residential Lease Agreements attached as Exhibit A to Plaintiff’s Opposition to Defendant’s Demurrer to the Complaint filed May 2, 2024.

            Defendant’s requests Nos. 1-4 are GRANTED pursuant to Evidence Code section 452, subdivision (c) (official acts) and (h) (matters not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy). Defendant’s request No. 5 is GRANTED pursuant to subdivision (d) (court records).

Analysis

            Defendant Solimar Homeowner’s Association demurs to the eleventh cause of action for negligent misrepresentation, as the sole remaining cause of action asserted against this Defendant, arguing it is time-barred by the statute of limitations.

            The eleventh cause of action alleges that Defendants, collectively, misrepresented to Plaintiff that the residential unit which she leased from the Defendants was fit for habitation. (FAC ¶ 210.) Plaintiff alleges that, in truth, the unit had leaks, water damage, and toxic mold infiltration, which she discovered on the day she moved into the unit. (FAC ¶¶ 210-15.) Although the Complaint does not state exactly when Plaintiff moved into the unit, she admits to entering into the lease “in or about February 2017.” (FAC ¶ 43.)

            As Defendant argues, negligent misrepresentation is subject to the two-year statute of limitations for obligations or liabilities not founded upon a written instrument, not the three-year statute of limitations for fraud claims. (Code Civ. Proc. § 339(1); see also § 338(d) [fraud]; Ventura County Nat. Bank v. Macker (1996) 49 Cal.App.4th 1528, 1531 [two-year statute of limitations applies even though negligent misrepresentation is “born of the union of negligence and fraud.”].) Thus, Defendant argues, based on the express admissions in the First Amended Complaint, Plaintiff became aware of Defendants’ negligent misrepresentations and suffered injury when she signed the lease for the unit in February 2017 and took possession. Thus, the statute of limitations began to run at that time. As the Complaint was filed in October 2021, more than four years later, Plaintiff’s claim for negligent misrepresentation falls outside the statute of limitations for even a fraud cause of action. As Plaintiff has failed to oppose this Demurrer, the Court has no basis to dispute Defendant’s analysis.

            Accordingly, Defendant Solimar Homeowners’ Association’s Demurrer to the First Amended Complaint is SUSTAINED.

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Leave to Amend

            When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318).  When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment.  [Citation.]  Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

            Plaintiff does not demonstrate how the Complaint might be amended to cure the deficiencies identified by Solimar’s demurrer. Moreover, the First Amended Complaint establishes that the statute of limitations with respect to Plaintiff’s negligent misrepresentation claim expired well before this action was originally filed. The Court therefore finds that leave to amend would be futile.

Conclusion

            Accordingly, Defendant’s Demurrer to the First Amended Complaint is SUSTAINED without leave to amend.

Motion to Strike First Amended Complaint

            As the Court has sustained Defendant’s demurrer in its entirety without leave to amend, Defendant’s corresponding Motion to Strike is MOOT.

CONCLUSION:

Accordingly, Defendant Solimar Homeowner’s Association’s Demurrer to the First Amended Complaint is SUSTAINED without leave to amend.

Defendant’s Motion to Strike is MOOT.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated:   February 4, 2025                               ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at  Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.