Case Number: EC062258    Hearing Date: July 25, 2014    Dept: NCD

TENTATIVE RULING (7-25-14)
#12
EC 062258
BAILEY v. PEROTTI

Defendant’s Demurrer to Complaint of Plaintiff

TENTATIVE:
Demurrer is OVERRULED.

Ten days to answer.

CAUSES OF ACTION: from Complaint
4) Breach of Contract
5) Breach of Warranty
6) Negligence
7) Fraud
8) Financial Elder Abuse

SUMMARY OF FACTS:
Plaintiff Boyd Bailey alleges that prior to 2005 he was the sole owner of an undivided parcel of property in Lake View Terrace, and entered into an oral agreement to split the subject property into two equal parts, with defendant to construct a custom home on the rear lot for plaintiff in exchange for a deed to the front lot. The agreement was confirmed in a writing and escrow instructions dated December 6, 2005. Plaintiff alleges the the escrow officer handling the division of the property was told by defendant to deed the entire property to plaintiff, defendant and defendant’s wife, as joint tenants with rights of survivorship. This error took several years to correct, and even then the subdivision was not made equally, which was later discovered by plaintiff in 2013. Plaintiff also alleges that defendant failed to properly construct plaintiff’s home, such that plaintiff has discovered latent and hidden defects which appeared in 2012, 2013 and at other times, which defendant assured plaintiff he would repair, but defendant has failed to do so.

ANALYSIS:
The demurrer argues that each cause of action is barred by the applicable statute of limitations.

A demurrer on the ground a cause of action is barred by the statute of limitations should be sustained only where the facts alleged on the face of the complaint “clearly and affirmatively” show that the cause of action is barred. It is not enough that the complaint might be barred. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.

Here, what is alleged in the complaint is that defendant breached a 2005 oral contract, and an original and modified contract (which is not alleged to be oral, but originally written), to construct the home last modified on some unstated date in or after 2010. [Paras. 6-9, 18, 19].

It is also alleged that the breaches of the agreement concerning the subdivision of the property and concerning the construction of the home, were not discovered until 2013 (with some defects discovered in 2012). [Paras. 7, 12, 15]. Even assuming a two year statute applies for breach of an oral contract, the claims also include claims for a written agreement, which would be subject to a longer statute, and not barred, as the construction apparently took place until 2011. [Para. 10]. The complaint was filed on March 26, 2014, within any statute argued based on the delayed discovery rule.

Defendant argues that the discovery rule does not apply to patent defects under CCP section 337.1, but the complaint alleges latent defects, which the demurrer concedes would be subject to a ten year limitations period under CCP § 337.15. As far as the complaint alleges, these statutes, measured from the time of substantial completion of the project in November of 2011, have not on their face run in this matter.

The argument seems to be that plaintiff knew or should have known of the subdivision irregularity in December of 2006 or in 2007 after a grading permit was issued for the construction. This is not alleged in the pleading, however, and defendant relies on a “Permit and Inspection Report” purportedly from the City of LA Department of Building and Safety, which is not authenticated or otherwise sought to be considered by the court such as through a Request for Judicial Notice.

The opposition argues that the material relied upon is not properly before the court, and even if it were, the court could not judicially notice the facts defendant seems to be relying on, and that the document does not appear to support the arguments.

Under Evidence Code §453, in order to obtain an order taking judicial notice a party must request it, and (1) give each adverse party sufficient notice of the request “to enable such adverse party to prepare to meet the request” and (2) must furnish “the court with sufficient information to enable it to take judicial notice of the matter.”

No request has been made here, and there is insufficient information submitted showing the origin or authenticity of the document. In addition, it appears that the fact that defendant is relying on is that the construction was approved for grading in December of 2006, and the project was substantially completed in May of 2008. These are not facts of which the court could take judicial notice just because they appear from the records of a city government, as they would remain hearsay, and, in any case, the record submitted to the court does not show anything which would have alerted of a subdivision mistake, or that the construction was completed in May of 2008. The document appears to end with a “Conditional Approval” issued on March 24, 2010. [See Ex. 1]. There is no date of a final approval, and this date appears to fall within the statute of limitations.

The demurrer also briefly argues that the first cause of action is barred by the statute of frauds. Defendant relies on CCP section 1971.

Here, the breach of contract claim is based not only on the oral contract concerning subdivision, but on agreements for construction on the subject property, which claim is not based on an estate or interest in real property. The court cannot sustain a demurrer to only part of a cause of action. Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (Ibershof) (1995) 33 Cal.App.4th 1680, 1682.
Accordingly, the demurrer on this ground is overruled.