Judge: Virginia Keeny, Case: 21VECV00462, Date: 2022-12-23 Tentative Ruling

Case Number: 21VECV00462    Hearing Date: December 23, 2022    Dept: W

MOSHE ELIEZER v. ERICA FIELDS, et al.

Defendants Erica Fields, Compass California, Inc., and Kathy Mehringer demurrer to the first amended complaint

Date of Hearing:        December 23, 2022                          Trial Date:       None set.

Department:              W                                                        Case No.:        21VECV00462

Moving Party:            Defendants Erica Fields, Compass California, Inc., and Kathy Mehringer

Responding Party:     Plaintiff Moshe Eliezer

Meet and Confer:      Yes. (Anast Decl. ¶¶4-5.)    

BACKGROUND

On August 15, 2022, Plaintiff Moshe Eliezer filed a First Amended Complaint against Defendants Erica Fields, Compass California II, Inc., and Kathy Mehringer for breach of duty of real estate salespersons (Civ. Code §2079). Plaintiff alleges that Defendants failed to disclose that a violation of zoning laws and an illegal barbecue operating next to Plaintiff’s house was polluting Plaintiff’s residence. Defendants represented the seller of the home. Plaintiff further alleges that the home he purchased was subject to repeated exposures to weekend barbecues and the unfiltered releases of smoke, toxins, and pollutants from the other property and that he has suffered damages as a result of Defendant’s failure to disclose. 

[Tentative] Ruling

Defendants Erica Fields, Compass California, Inc., and Kathy Mehringer’s Demurrer to the First Amended Complaint is SUSTAINED WITH LEAVE TO AMEND.

Defendants Erica Fields, Compass California, Inc., and Kathy Mehringer’s Motion to Strike is GRANTED WITH LEAVE TO AMEND.

DISCUSSION

Defendants Erica Fields, Compass California II, Inc., and Kathy Mehringer demur to the First Amended Complaint on the grounds that the cause of action alleged against Defendants fails to state facts sufficient to constitute a cause of action and is uncertain. Specifically, Plaintiff fails to allege facts to support a legal duty as against Defendants, or breach thereof.

Defendants first argue the complaint fails to allege a proper legal duty against Kathy Mehringer. Defendants contend the First Amended Complaint is devoid of any facts indicating Ms. Mehringer had any involvement in the subject transaction and Ms. Mehringer owed no duty to Plaintiff. Ms. Mehringer was named in the complaint as an officer of Defendant Compass California II, Inc. However, “[a]bsent special circumstances, officers of a corporation ‘are not responsible to third persons for negligence amounting merely to nonfeasance, to a breach of duty owing to the corporation alone; the act must also constitute a breach of duty owed to the third person.’” (Sandler v. Sanchez (2012) 206 Cal.App.4th 1431, 1437.)

In opposition, Plaintiff argues the First Amended Complaint identifies a principal-agent relationship between Defendants Mehringer and Fields. Plaintiff contends the allegations of the broker relationship are sufficient to support their cause of action for violation of Civil Code §2079. Plaintiff cites Horiike v. Coldwell Banker Residential Brokerage Co. (2016) 1 Cal.5th 1024 to support their argument. In Horiike, the Supreme Court found: “[A] broker is presumed to be aware of the facts known to its salespersons. (See Civ. Code, § 2332 [“As against a principal, both principal and agent are deemed to have notice of whatever either has notice of, and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other.”]; 3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 150, p. 195 [“An agent is under a duty to inform the principal of matters in connection with the agency that the principal would desire to know about. [Citation.] Even if the agent fails to do so, the principal will in most cases be charged with that notice.”].)” (Horiike v. Coldwell Banker Residential Brokerage Co. (2016) 1 Cal.5th 1024, 1039.)

It is unclear whether Plaintiff is alleging violation of Civil Code 2079 against Defendant Mehringer as a broker or officer. Under Sandler, Defendant Mehringer as the designated officer for the broker did not owe a duty to third parties. However, Horiike does not help Plaintiff in the instant matter. Horiike held that when a real estate broker acts as a dual agent representing both the buyer and the seller, the broker's associate licensee (a salesperson or agent) owes the buyer the same fiduciary duty as does the broker, which includes to learn and disclose all material information affecting the value of the property.  

Defendants further argue Plaintiff cannot establish vicarious liability as against Kathy Mehringer. The court finds Plaintiff has failed to sufficiently allege vicarious liability. “Corporate employers may be held vicariously liable for the tortious acts of their agents committed within the scope of the agency or employment. [Citations.]” (Sandler, supra, 206 Cal.App.4th at p. 1442.) However, as stated above, “absent special circumstances, it is the corporation, not its owner or officer, that is the principal or employer and thus subject to vicarious liability for torts committed by its employees or agents.” (Id. at p. 1442-43.) Plaintiff has not alleged any facts that would support Plaintiff’s claims against Mehringer as liable for Fields’ torts committed within the scope of her employment. 

Accordingly, Defendants’ demurrer is SUSTAINED WITH LEAVE TO AMEND.

Motion to Strike

Defendants Erica Fields, Compass California II, Inc., and Kathy Mehringer move to strike improper matters and all reference to attorneys’ fees from the First Amended Complaint.

Defendants contend Plaintiff has not alleged a contract or statute under which attorneys’ fees are available. Specifically, Plaintiff has not alleged either: (a) any express agreement between the parties providing for attorneys' fees; or (b) the violation of any statute which specifically provides for attorneys' fees against the Defendants.

In opposition, Plaintiff argues the FAC does not seek any attorney’s fees to bring the action for the Civ. C. §§ 2079 nor 2033 claims against these Defendants. Plaintiff does note that “[S]ometimes referred to as the "tort of another" or "third party tort" exception, allows a plaintiff attorney fees if he is required to employ counsel to prosecute or defend an action against a third party because of the tort of the defendant. (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620-621 [30 Cal. Rptr. 821, 381 P.2d 645].) This rule is embodied in the Restatement of Torts and is generally followed in the United States. (Rest.2d Torts, § 914, subd. (2), and appen.)” (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505.)

However, Plaintiff’s complaint is devoid of any allegation regarding tort of another. As noted by Defendants, Plaintiff’s complaint is also devoid of any contract or statute that would support a prayer for attorney fees.

Accordingly, Defendants’ motion to strike is GRANTED WITH LEAVE TO AMEND.