Case Number: KC065263 Hearing Date: May 22, 2014 Dept: O

Grace Chinese Alliance Church of the Christian and Missionary Alliance of west Covina, California v. Lin Ma DDS Inc. (KC065263)

1. Cross-Defendants Michael and Michelle Hayden (and Cross-Defendants Lee & Associates Commercial Real Estate Services, Inc. – City of Industry and Larimore, by joinder)’s MOTION TO STRIKE PORTIONS OF FIRST AMENDED CROSS-COMPLAINT OF LIN MA DDS INC.

Respondent: Cross-Complainant Lin Ma DDS Inc.

2. Cross-Defendants Michael and Michelle Hayden’s MOTION FOR SUMMARY JUDGMENT ON THE CROSS-COMPLAINT OF LIN MA DDS, INC.

Respondent: Cross-Complainant Lin Ma DDS Inc.

TENTATIVE RULING

1. Motion to Strike

Cross-Defendants Michael and Michelle Hayden (and Cross-Defendants Lee & Associates Commercial Real Estate Services, Inc. – City of Industry and Larimore, by joinder)’s motion to strike portions of first amended cross-complaint of Lin Ma DDS Inc. is DENIED.

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP 436.) The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court’s own files or records). (CCP 437.)

On 3/5/14, this court granted Cross-Complainant leave to amend the Cross-Complaint to allege further facts regarding the statute of limitations and indemnity and contribution causes of action. Cross-Defendants now move to strike additional allegations of “reliance” because the court already denied Cross-Defendants’ motion for judgment on the pleadings based on “reliance,” and therefore, “reliance” is not an issue in the amended complaint. While this court critically notes that Cross-Complainants should have moved for leave to amend to add new allegations, this court previously found that Cross-Complainant’s allegations of “reliance” were well pled, and there is no harm in now allowing Cross-Complainant to supplement its already valid allegations of reliance. Motion is DENIED.

2. MSJ

Cross-Defendants Michael and Michelle Hayden’s motion for summary judgment on the cross-complaint of Lin Ma DDS, Inc. is DENIED.

Cross-Defendants’ evidentiary objections are overruled.

A defendant moving for summary judgment/adjudication has met his burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)
Cross-Defendants Michael and Michelle Hayden move for summary judgment on the ground that they did not breach any contract or warranties and did not commit fraud because DDS’s purchase of the property was in an “as is” and “where-is” condition, and that there were no modifications made to the written agreement. (Cross-Defendants’ Separate Statement (CDSS) 5 and 12.) Based on this evidence, the court finds Cross-Defendants have met their initial burden.

[The court notes that Cross-Defendants also contend that “DDS acknowledged that, except as otherwise stated in the Agreement, no representations, inducements, promises, agreements, assurances, oral or written concerning the subject property were made by either Party or Brokers, or relied upon by DDS.” (CDSS 11.) However, Cross-Defendants failed to submit evidence of discovery responses admitting such fact. Request for Admission 15 seeks this admission, but Cross-Complainant’s response was a denial. (Exhibit B, 4:7-8.)]

In opposition, Cross-Complainant contends that he relied on Cross-Defendants’ oral representations that the fence constituted the boundary line. (Ma Decl., Par. 3; Noriega Decl., Par. 3.) Pursuant to Richard v. Baker (1956) 141 Cal.App.2d 857, 861 – 863, “A vendee who has been induced to purchase property by fraud or deceit may, upon discovery, either rescind the contract or allow it to stand and sue for damages. A single material misstatement knowingly made by a vendor and relied upon by his vendee will warrant a rescission with damages, and a misrepresentation as to boundaries is a material misrepresentation…. A prospective purchaser has a right to rely upon the representations of the seller concerning such existing facts and if the vendee suffers damage by reason of such representations, he has a good cause of action against the seller… Parol evidence of fraudulent representations is admissible as an exception to the parol evidence rule to show that a contract was induced by fraud.”

In Reply, Cross-Defendants contend that the cases cited by Cross-Complainants deal with residential and not commercial property. However, neither Richard v. Baker (1956) 141 Cal.App.2d 857 nor Dohrman v. J. B. Roof, Inc. (1930) 108 Cal. App. 456 hold that their decisions are confined only to “residential” and not “commercial” properties. In the courts’ analyses, both holdings refer to “real property” generally.

Cross-Defendants also contend that CC 1102 et seq. and CC 2079 imposes an affirmative duty on the seller to disclose known or readily observable defects in residential properties, and there are no such disclosure duties in the “commercial” context. However, CC 1102 and 2079 are not implicated here because Cross-Complainant is not contending that the sellers’ agent had any duty to inspect and disclose any unobservable defects. Here, the evidence submitted in opposition is that the Haydens’ agent made an affirmative representation that the fence constituted the boundary line, and in reliance on that affirmative statement, Cross-Complainant purchased the property. (Ma Decl., Par. 3; Noriega Decl., Par. 3.) Triable issues therefore exist regarding whether the statement was made and if it was made fraudulently. Under the fraud exception, parol evidence does not bar the statement from being admitted.

Motion is DENIED.