Judge Thomas Falls, Case 20STCV23813 2022-09-01 Tentative Ruling

Judge: Thomas Falls, Case: 20STCV23813, Date: 2022-09-01 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

Case Number: 20STCV23813 Hearing Date: September 1, 2022 Dept: R

Estate of Hugo Rivero, Jr., et al. v. Bullseye Home Inspector, et al. (20STCV23813)

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(1) DEFENDANTS RICHARD BASH’S AND RB REAL ESTATE INVESTMENTS, INC.’S DEMURRER TO PLAINTIFFS’ FIFTH AMENDED COMPLAINT

(2) DEFENDANTS RICHARD BASH’S AND RB REAL ESTATE INVESTMENTS, INC.’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIFTH AMENDED COMPLAINT

Responding Party: Plaintiffs

Tentative Ruling

(1) DEFENDANTS RICHARD BASH’S AND RB REAL ESTATE INVESTMENTS, INC.’S DEMURRER TO PLAINTIFFS’ FIFTH AMENDED COMPLAINT is SUSTAINED with 15 days leave to amend.

(2) DEFENDANTS RICHARD BASH’S AND RB REAL ESTATE INVESTMENTS, INC.’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIFTH AMENDED COMPLAINT is MOOT.

Background

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, a minor, by and through her guardian ad litem, Rubidelma Merida Damian (“Plaintiffs”) allege as follows: On September 9, 2019, at Plaintiffs’ residence at 4511 Stewart Avenue, Baldwin Park, CA 91706 (“Property”), 35-month-old Hugo Jr. was able to gain access to the Property’s backyard pool (“Pool”) due to an illegal, dangerous, and concealed single-feature barrier system, fell in the Pool, became submerged, suffered brain injuries, and later died. Prior to purchasing a home, Plaintiffs informed Buyers’ Agents of their family’s particular interest in purchasing a home with a pool that would be safe for their children, including Hugo Junior, and that complied with all applicable safety laws and regulations. According to Plaintiffs, Hugo Junior was able to gain access to the Pool through a sliding glass door at the Property that provided direct access to the Pool and bypassed the Pool’s single feature and defective partial gate. Hugo Junior did so undetected because of the absence of any first layer of protection or backup drowning prevention safety feature.

On November 16, 2020, Pac W. Dong (“Dong”), Clement Ziroli (“Ziroli”) and Homeowners Equity Corporation (“HEC”) filed a cross-complaint, asserting causes of action against S2W Construction, Inc. (“S2W”), Bullseye Home Inspector, Sergio Fernandez, JMA Legacy, Inc. (“JMA”), Luis Eduardo Fajardo (“Fajardo”), Sergio Omar Becerra (“Becerra”), Masters Realty Services, Inc. dba Century 21 Masters (“Masters”), Cecilia Gonzalez Alvarez (“Alvarez”) and Roes 1-50 for:

1. Implied Indemnity

2. Contribution

3. Declaratory Relief

4. Express Indemnity

5. Breach of Contract

On December 23, 2020, the case was transferred from Department 31 of the Personal Injury Court to this instant department.

On May 7, 2021, Sergio Fernandez dba Bullseye Home Inspector (“Fernandez”) filed a cross-complaint, asserting causes of action against JMA, Fajardo, Becerra, Dong, HEC, Ziroli, Masters, Alvarez, S2W and Does 1-50 for:

1. Equitable Indemnity

2. Declaratory Relief

3. Apportionment of Fault

On July 26, 2021, a “Stipulation [and Order] to Strike the Second, Fourth and Fifth Causes of Action and Request for Attorneys’ Fees in [Dong’s, Ziroli’s and HEC’s] Cross-Complaint Against Cross-Defendant Sergio Fernandez dba Bullseye” was filed.

On August 16, 2021, Plaintiffs filed a Fourth Amended Complaint, asserting causes of action against Fernandez, JMA, Fajardo, Becerra, Dong, HEC, Ziroli, Masters, Alvarez, S2W and Does 1-50 for:

1. Wrongful Death (Negligence)

2. Negligence (Negligent Infliction of Emotional Distress—Bystander)

3. Wrongful Death (Breach of Fiduciary Duty and Constructive Fraud)

On December 23, 2021, Plaintiff filed its Fifth Amended Complaint (“5AC”) asserting causes of action for:

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

On January 25, 2022, Defendants JMA, Fajardo, Becerra filed a Demurrer with a Motion to Strike, which the court overruled.

On January 25, 2022, Defendants Masters Realty Services, Inc. and Cecilia Gonzalez Alvarez filed a Demurrer with a Motion to Strike (“Motion”), which the court overruled.

On May 20, 2022, Plaintiffs filed an “Amendment to Complaint” naming Richard Bash (“Bash”) as Doe #1 and R B Real Estate Investments, Inc. (“RB”) as Doe #1.

On August 5, 2022, Defendants Bash and RB filed a Demurrer with a Motion to Strike.

On August 19, 2022, Plaintiffs filed their Opposition to the Demurrer.

Legal Standard

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459) (emphasis added). “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769) (emphasis added).

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “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.) A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Discussion

A demurrer focuses only on the face of the pleadings; thus, not arguments raised in an opposition.

Here, the court agrees with the moving Defendants that there are no allegations pled against them. Defendants were substituted in and served notice as parties sued under the fictious names Doe 1 and Doe 2. However, Plaintiffs did not amend the operative complaint to make specific factual allegations against these specific moving Defendants. Without the specific allegations against these specific moving Defendants, the court cannot ascertain whether moving Defendants “violated the legal duties to use due care, to act in good faith, fair dealing, and to not commit deceit.” (Opp. p. 7.) In fact, even by way of filing the amendment to the complaint, the court is uncertain as to the moving Defendants’ role in the instant action (i.e., broker, agent, etc.) This is of particular concern as there are over ten named defendants, creating ambiguiety as to who made the representations the very allegations are founded upon. Thus, while Plaintiffs aver that moving Defendants “ignore the plain factual allegations averred against them,” (Opp. p. 2), the court also shares moving Defendants’ concern with uncertainty of the pleading.

Additionally, Plaintiffs seemingly argue that it could not file a proper amended complaint because (i) the court did not adopt the November 18, 2021 tentative as the final ruling and (ii) in that ruling did not define the scope of a permissible amendment. Not so. Though it may be true that the court did not verbatim use the words “the court adopts its tentative as final,” the November 23, 2021 minute order entitled “Ruling on Submitted Matter” provided that the court sustained the demurrer with 30 days leave to amend, which was the identical holding of the tentative. Furthermore, the minute order stated that the court’s findings are reflected in the court file, implicitly referencing the tentative ruling which was uploaded in the court docket. Thus, as the tentative thoroughly addressed deficiencies in the complaint, the court, contrary to Plaintiffs’ assertion, need not have made an explicit ruling on the permissible scope of an amended complaint.

Conclusion

Based on the foregoing, the demurrer is SUSTAINED. The court gives 15 days leave to amend as Plaintiffs argue the nature of the allegations are identical.

The motion to strike is moot.