2013-00138674-CU-BC

Linda Tomlinson vs. College Glen Apartments

Nature of Proceeding: Hearing on Demurrer to Second Amended Complaint

Filed By: Rosenberg, Sid M.

Defendant B.I.G. College Glen, LLC’s (erroneously sued as College Glen Apartments)
demurrer to Plaintiff’s second amended complaint (“SAC”) is ruled upon as follows. Defendant’s request for judicial notice is granted. In taking judicial notice of these
documents, the court accepts the fact of their existence, not the truth of their contents.
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(See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal. 4 543, 590 [judicial
notice of findings of fact does not mean that those findings of fact are true]; Steed v.
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Department of Consumer Affair (2012) 204, Cal. App. 4 112, 120-121.)

Plaintiff rented an apartment in a complex that Defendant owned. Plaintiff alleges that
the apartment was negligently constructed, maintained, managed and leased so as to
allow water intrusion which caused dangerous and hazardous conditions on the
premises and also the accumulation of mold spores within the sub-flooring, walls and
living spaces.

Defendant demurs to the following causes of action: Fraud (COA 9) and Negligent
Misrepresentation (COA 10).

Fraud

Defendant demurs to this cause of action on the grounds that the SAC lacks
specificity, such that it fails to allege “how, when, where, to whom, and by what means
the representations were tendered.” (See Lazar v. Superior Court (1996) 12 Cal. 4th

631, 645.)

The Court disagrees. Here, the SAC identifies Ken McMurray (“McMurray”) as the
employee of Defendant RSC and College Glen Apartment who has an exclusive
capacity as an apartment manager. (SAC, ¶ 12.) Plaintiff further alleges that on
specific dates and occasions, McMurray made several representations concerning the
condition of the property at issue in this case to Plaintiff via email and face to face
conversations. (See SAC, ¶ 13.) At this stage of the proceedings, these allegations are
sufficient.

The demurrer is OVERRULED.

Negligent Misrepresentation

Defendant demurs to this cause of action on the grounds that the SAC fails to allege
facts in support of “justifiable reliance on the misrepresentation” and the SAC lacks
specificity, such that it fails to allege “how, when, where, to whom, and by what means
the representations were tendered.” (See Lazar v. Superior Court (1996) 12 Cal. 4th

631, 645.)

“Except in the rare case where the undisputed facts leave no room for a reasonable
difference of opinion, the question of whether the plaintiff’s reliance is reasonable is a
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question of fact.” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4 1226, 1239.)
Here, Plaintiff alleges that McMurray assured her in a face to face conversation that
the condition in Apartment 509 is habitable without any concern for her health, and
Plaintiff relied on Defendant’s assurance and moved into Apartment 509. (See SAC, ¶
17.) Whether or not the reliance was justifiable is a factual question that goes to the
merits of Plaintiff’s claims and is not suitable for determination on demurrer.

Lastly, as discussed above, Plaintiff has pled sufficient facts to meet “the particularity
requirement necessitates pleading facts that show how, when, where, to whom, and by
what means the representations were tendered.” ( Charpentier v. Los Angeles Rams
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Football Co., Inc. (1999) 75 Cal. App. 4 301, 312.) The demurrer is OVERRULED.

Defendant shall file and serve and answer by no later than June 16, 2014.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.