Case Number: KC056883 Hearing Date: June 11, 2014 Dept: O

Du, et al. v. Mohammadi, et al. (KC056883)

Defendants Z. and M. Mohammadi’s MOTION FOR SUMMARY ADJUDICATION AS AGAINST PLAINTIFF’ FOURTH AMENDED COMPLAINT

Respondent: Plaintiffs Du and Feng

TENTATIVE RULING

Defendants Z. and M. Mohammadi’s motion for summary adjudication as against plaintiff’ fourth amended complaint for Fraud and “Suppression of Facts”/Concealment is GRANTED.

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).)

Defendants move for summary adjudication of the following issues:

ISSUES 1 and 2: FRAUD (3rd cause of action) and CONCEALMENT (5th cause of action): The elements of fraud are: (1) misrepresentation (false representation, CONCEALMENT, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See CC 1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.) The elements of an action for deceit based on CONCEALMENT are: 1) defendants must have concealed or suppressed a material fact; 2) defendants must have been under a duty to disclose a fact to plaintiff; 3) defendant intentionally concealed the fact with intent to defraud; 4) plaintiff must have been unaware of the fact and would not have acted as he did had he known the concealed fact; and 5) plaintiff sustained resulting damage. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)

Defendants contend Fraud and Concealment fail because Plaintiffs cannot demonstrate scienter. Defendants present evidence that they had no knowledge, at the time of any representations being made to Plaintiffs, or at any time prior to, during, or at the time of consummation of the sale of the property, that portions of the backyard and parts of the swimming pool were allegedly located on neighboring property not owned by Defendants. (Defense Separate Statement (DSS) 8-9, 11, 27-28, 30.) There is also no evidence that Defendants made the representations recklessly or without regard for its truth. Plaintiffs’ responses to discovery identified no facts, witnesses, and/or documents that would evidence any intent to defraud. Defendants did not conceal any information known to them concerning the property lines, the location of the swimming pool, or the backyard, from Plaintiffs prior to, during, or at the time f consummation of the sale of the property. (DSS 10, 48.) The court finds defendants have met their initial burden of production of evidence.

In opposition, Plaintiffs point out that B&P Code 7044 provides that when a person signs a building permit as owner-builder, he assumes full responsibility for all phases of the project. However, B&P Code 7044 merely identifies who the Chapter does not apply to, and certain requirements for proof of sale, unrelated to issues in this case. Further, plaintiffs failed to submit an amended separate statement after the court allowed plaintiffs a continuance to depose Mohammadi.

Regardless, this court will accept the submitted deposition transcript to assess whether a triable issue exists. Plaintiff submits evidence that Mohammadi testified that he hired HP Engineering to stake the property. (Mohammadi Deposition, 143:8-17.) Mohammadi does not know if the property line on the grading plan he submitted to the City accurately reflects the actual property line. (Mohammadi Deposition, 119:18 – 120:9.) However, Mohammadi admitted in request for admissions that the fence was not put on the property line. (Mohammadi Deposition, 207:15-208:22.) This evidence, viewed in the light most favorable to Plaintiffs, does not create any triable issue as to Defendants’ scienter and knowledge or intent to conceal a material fact. At best it shows a negligent misrepresentation which is plead as the 4th C of A.