18-CIV-02283 ROBERTA JURASH, ET AL. VS. CARYN MCDOWELL, ET AL.
ROBERTA JURASH CARYN MCDOWELL
SIMON A. MAZZOLA WILLIAM D. WHITEMAN
HEARING ON DEMURRER TENTATIVE RULING:
Defendant Pacific Union International, Inc.’s Demurrer to Plaintiffs Roberta Jurash’s and A. Shabi Khan’s 5-4-18 Complaint is ruled upon as set forth below.
As to the Second Cause of Action for “misrepresentation,” the Demurrer is SUSTAINED WITH LEAVE TO AMEND. As both parties acknowledge, misrepresentations must be plead with specificity, which includes providing clarity as to which Defendant(s) made the alleged false statement(s). The Complaint repeatedly alleges “Defendants” made various false representations (see ¶¶ 17-19, 27-28, 34-35, 55), without specifying which of the named Defendants (the McDowells and/or Pacific Union) did so. See, e.g., ¶30 (“some or all of the Defendants knew that the changes made to the Property would not be known to third parties and … Defendants gave … inaccurate statements about them.”). Because of the specific pleading requirement applicable to misrepresentation claims, and to enable Defendants to fairly respond, the Complaint should make clear which false statement(s) Pacific Union allegedly made, rather than referring generally to “Defendants.”
As to the Fifth Cause of Action alleging “violation of Civ. Code §§ 1102 and 2079,” the Demurrer is OVERRULED. Defendant argues this claim is “duplicative” of the First Cause of Action for negligence, and thus should be dismissed. The First and Fifth claims are not duplicative because the First Cause of Action does not allege a violation of these statutes. Further, even if Civ. Code §§ 1102 and 2079 do not provide their own remedy or create a private right of action, meaning that a violation of the statute(s) does nothing but set up a “negligence per se” argument, that fact alone does not render them subject to demurrer. Defendant has not demurred to the negligence claim. Case law is mixed on whether a valid cause of action is subject to demurrer merely because it is “duplicative” of another valid claim. Compare Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268 with Blickman Turkus, L.P. v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890.
As to the Seventh Cause of Action for declaratory relief, the Demurrer is SUSTAINED WITH LEAVE TO AMEND. The alleged facts do not establish any existing actual controversy that provides a basis for requesting declaratory relief. Code Civ. Proc. § 1060. The Complaint asserts contract and torts claims. There is no request that the Court interpret any ambiguous contract language, determine the validity of a contract, or determine the parties’ rights under any contract. There is no dispute here that the parties had an agency relationship prior to the close of escrow.
In their Reply, Plaintiffs appear to argue that they seek a judicial determination of whether the parties have an on-going “agency” relationship (post- close of escrow). The Complaint does not allege any facts supporting the existence of any alleged on-going agency relationship. Menzel v. Salka (1960) 179 Cal.App.2d 612, 623-624.
As to the Eighth Cause of Action for breach of written contract, the Demurrer is SUSTAINED WITH LEAVE TO AMEND. The Complaint alleges Defendants breached a “contract,” which the Complaint defines as “including but not limited to” the Residential Purchase Agreement, the Transfer Disclosure Statement, and the Agent Visual Inspection Disclosure. With their Reply, Defendants attach and request judicial notice of all three referenced documents, arguing that a breach of written contract claim cannot be based on any of these documents, because each document either is not a contract at all, or Defendant was not a party to it (see the Purchase Agreement). The judicial notice issue aside, a party alleging breach of written contract must either attach the contract to the Complaint or set forth its terms, which the Complaint here does not do. Otworth v. S. Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459. As to the Ninth Cause of Action for breach of oral contract, the Demurrer is SUSTAINED WITH LEAVE TO AMEND. This claim alleges the parties entered into an oral agreement(s) regarding the property, but does not allege how this occurred (who spoke to whom), nor does it identify any term(s) of the alleged oral agreement(s), nor what term(s) were allegedly breached. Further, such an oral agreement presumably would be subject to the statute of frauds. Civ. Code § 1624; Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1503 (where complaint seeks to enforce contract subject to statute of frauds, failure to allege written contract signed by defendant is legal issue properly decided on demurrer); Edens v. Stoddard (1954) 126 Cal.App.2d 56, 59-60 (“The statute of frauds makes void any oral agreement to employ an agent or broker to purchase or sell real estate for compensation.”).
Defendant’s Requests for Judicial Notice (RJN) are DENIED. Evid. Code § 452(h) does not authorize judicial notice of these documents.
If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.