Judge: Virginia Keeny, Case: 21VECV00462, Date: 2023-05-19 Tentative Ruling

Case Number: 21VECV00462    Hearing Date: May 19, 2023    Dept: W

ELIEZER v. FIELDS, ET AL.

DEMURRER to plaintiff’s Second AMENDED complaint

Date of Hearing:        May 19, 2023                         Trial Date:       April 8, 2024

Department:              W                                            Case No.:        21VECV00462

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

Responding Party:     Plaintiff Moshe Eliezer

Meet and Confer:      Anast Decl. ¶¶ 2-4

BACKGROUND

Plaintiff Moshe Eliezer alleges that Defendants represented the seller of a home sold to Plaintiff (22835 Califa Street, Woodland Hills, California 91367) and failed to disclose all facts that materially affect the value or desirability of the property as provided by Civil Code § 2079. Defendant Erica Fields represented that she lived on the same street two houses away and identified it as a great area. Fields never mentioned smoke, pollutants, toxins, or any appearance of smoke or unusual smells that routinely permeated in the immediate airspace on Saturdays and Sundays. However, Defendants knew or should have known that the vicinity of 5947 Fallbrook Avenue, Woodland Hills, California 91367 was exposed to weekend contaminations of smoke, toxins, pollution, discoloration of the air and offensive odors on most Saturdays and Sundays. Likewise, Defendants knew or should have known that these aforementioned repeated incidents at 5947 Fallbrook Avenue, Woodland Hills, California 91367 constituted facts materially affecting the value or desirability of the property that an investigation would reveal.

On January 24, 2023, Plaintiff filed the operative Second Amended Complaint for liability under Civil Code § 2079 (breach of duty of real estate salesperson).

Defendants demur to Plaintiff’s SAC on the grounds it is uncertain and the cause of action fails to state facts sufficient to constitute a cause of action. Plaintiff opposes.

[Tentative] Ruling

Defendants Erica Fields and Compass California, Inc.’s Demurrer to the Second Amended Complaint is overruled.

ANALYSIS

Uncertainty

While Defendants provide this as a basis for demurrer in the notice, it is not argued in the memorandum of points and authorities. Accordingly, the demurrer based on uncertainty is OVERRULED.

Failure to State Facts

A real estate agent owes a duty to a prospective buyer “to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to that prospective buyer all facts materially affecting the value or desirability of the property that an investigation would reveal”. (Civil Code, § 2079, subd. (a).)

Further, Civil Code § 2079.16 provides a seller’s agent owes a “duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the parties.”

Defendants argue that the SAC is devoid of facts indicating Defendants inspected the Subject Property at a time when the Market was having a barbeque. In fact, the SAC alleges, at the time of the open house and inspections, which would presumably include Defendants’ inspection, there were no active barbeques. (SAC, ¶12.) Further Defendants argue that the SAC does not allege that Defendants knew of the smoke and argue that Fields lived more than 1,000 feet from the Market.

In the SAC, Plaintiff alleges that Defendant Fields lived two houses down from Plaintiff’s house and never mentioned the smoke from the barbeques. (SAC, ¶7.) Plaintiff alleges that “his home at 22835 Califa Street, Woodland Hills, California 91367 is near a busy intersection by Fallbrook upon which it is extremely unlikely for any resident of Califa Street, Woodland Hills, California 91367 to be unaware of the weekly barbecues, discoloration of the air, smells, and incidents of smoke, pollution and / or toxins in the vicinity of 5947 Fallbrook Avenue, Woodland Hills, California 91367, less than 300 feet from the Plaintiff’s home at 22835 Califa Street, Woodland Hills, California 91367.” (SAC, ¶8.) Thus, Defendants knew or should have known about the smoke that materially affects the value and desirability of the home. (SAC, ¶10.) Defendants also knew that the subject residence was never shown to buyers during the weekend and that the open house and inspections were never during the weekend barbeque. (SAC, ¶12.)

Accordingly, the Court finds the facts sufficient to state a cause of action for breach of Civil Code § 2079. Specifically, Plaintiff alleges that Defendant Fields lived two houses down and any resident in the nearby vicinity of the Market would know of the smoke on the weekends. Further, Defendants knew or should have known that Plaintiff would not be aware of this through observation as the open house and inspection was not during the weekend barbeques. Lastly, Defendants knew or should have known that this would affect the value and desirability of the property.

Based on the foregoing, the demurrer is OVERRULED.