Opinion
E043817
9-5-2008
MINERVA FISCAL, Plaintiff and Appellant, v. PATSY J. ANDERSON, Defendant and Respondent.
Law Offices of Carlos F. Negrete, Carlos F. Negrete and Nectaria Belantis, for Plaintiff and Appellant. Reynolds, Jensen & Swan and Christopher G. Jensen for Defendant and Respondent.
Not to be Published
Plaintiff Minerva Fiscal appeals after summary judgment was granted in favor of defendant Patsy J. Anderson (Anderson) in plaintiffs action for breach of contract, fraud, negligence, and negligent misrepresentation. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On September 11, 2002, Anderson listed her Corona home (the property) with F.M. Tarbell Co., dba Tarbell Realtors (Tarbell). Ralph A. Hernandez was her agent with Tarbell. On November 12, plaintiff submitted an offer to purchase the property through her broker/agent Century 21 Superstars and Edith Risso (Risso). Plaintiff also signed a written Buyers Inspection Advisory. Plaintiff was advised by Risso that she should have a physical inspection of the property by a licensed contractor. Following a few counteroffers, an agreement was reached.
Prior to close of escrow, plaintiff made three physical visits to the property. She brought her boyfriend, Edgar Gutierrez (Gutierrez), with her on each visit and on occasion her brother and his girlfriend. Plaintiff employed Chris Brown (Brown) of AmeriTech Home Inspection Service to inspect the property. As Brown inspected the property, plaintiff and Gutierrez followed along. Plaintiff acknowledged that she hired Brown to make sure any major defects would be uncovered before she made the final decision to purchase the property. At the end of the inspection, Brown provided plaintiff with a written report.
Tarbell, through Hernandez, performed a visual inspection of the property when Tarbell initially listed the property. In a Real Estate Transfer Disclosure Statement form (TDS) that Hernandez provided to Risso, Hernandez made disclosures of his observed facts which might affect the value or the desirability of the property . In the agents disclosure portion of the TDS, Hernandez stated: "OPENING IN LIVING ROOM WALL WHERE AQUARUM [sic] WAS INSTALLED AT ONE TI[ME,] CEILING IN BEDROOM IS SAGGING, AND HAS STAINS, SOME WIND[OWS] ARE NOT OPERABLE, HOLES ON CONTERTOP [sic] BEHIND KITCHEN SINK, CRACKS ON DRIVEWAY. [¶] PLEASE HAVE PROPERTY INPECTED [sic] BY A PROFESSIONAL HOME INSPECTOR." The TDS was provided to Risso no later than December 2, 2002.
Plaintiff signed a list of requested repairs to be made "[b]ased on the inspection conducted by [Brown], Monday, November 25th . . . ." On December 3, 2002, Plaintiff submitted her request for repairs. On December 4, Anderson replied, agreeing to repair some but not all of the items. Anderson repaired those items which she agreed to repair. During the pending escrow, Anderson recalled plaintiff "popping in" at the property eight to 10 times in addition to the inspections.
Two termite inspection reports, one from Antimite Termite and Pest Control (Antimite) and the other from Circle Kustom Exterminators (Kustom), were generated and provided to plaintiff prior to the close of escrow. Anderson hired Kustom to perform termite eradication. Kustom performed certain remediation work with respect to the termite damage. On February 11, 2003, escrow closed and plaintiff then took possession.
In October 2004, twenty months after plaintiff took possession of the property, she initiated this action. On December 19, 2005, plaintiff filed her first amended complaint (Complaint). Although the Complaint contains 11 causes of action, four were viable as to Anderson, namely, breach of contract, negligence, fraud, and negligent misrepresentation. Plaintiff alleged that there was (1) termite damage to the interior and exterior walls and ceilings of the home and the detached garage; (2) severe cracking in the exterior concrete; (3) leaks in the roof; (4) missing drywall; (5) defects in the plumbing, electrical and mechanical components of the home; (6) cracks in the various parts of the home; (7) cracks in the pool; (8) disintegration of the walls; and (9) defects in the windows. On January 3, 2006, Anderson filed her answer to the Complaint, and on January 26, 2007, she moved for summary judgment. Plaintiff opposed the motion for summary judgment; however, on May 24, 2007, judgment was entered in favor of Anderson. The court found that "`[plaintiff] was represented by a Realtor. She hired an inspection company. She went to the house on multiple occasions. There was a third-party, non-interested termite inspection done with a report. So I just do not see any triable issues of fact. (RT 3:1-5.)"
In challenging the trial courts ruling, plaintiff argues that triable issues of material fact exist as to what Anderson knew, hid or failed to disclose at the time of sale concerning the condition of the property.
II. STANDARD OF REVIEW
A trial court properly grants summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A moving party defendant is entitled to summary judgment if he or she establishes a complete defense to the plaintiffs causes of action or shows that one or more elements of each cause of action cannot be established. The defendant must support his or her motion with affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. (Code Civ. Proc., § 437c, subds. (b) & (o)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.)
The moving party defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the defendant has met this burden of production, he or she causes a shift. The burden shifts to the plaintiff to make a prima facie showing that a triable issue of material fact exists. From commencement to conclusion, however, the moving party defendant bears the burden of persuasion that no triable issue of fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851.)
"On appeal, we exercise `an independent assessment of the correctness of the trial courts ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citation.]" (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201.) For the reasons that follow, we independently conclude there are no triable issues of material fact and Anderson is entitled to judgment as a matter of law.
III. ARE THERE TRIABLE ISSUES OF MATERIAL FACT?
According to plaintiff, the trial court erred in granting Andersons motion for summary judgment because triable issues of material fact exist as to (1) whether Anderson complied with her contractual obligation to "pay for a termite report, do the work recommended and make any necessary repairs"; (2) whether Anderson "knew of the existence of numerous defects in the house and breached the real estate agreement by failing to disclose those defects" such as plumbing problems (garbage disposal) and leaky roof; (3) whether the TDS disclosed the defects discovered by plaintiff upon occupying the property; and (4) whether Anderson fraudulently or negligently misrepresented the facts regarding the alleged defects.
A. Breach of Contract
In order to state a cause of action for breach of contract, a complaint must allege "the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant and damages. [Citation.]" (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.) In her complaint, plaintiff alleges that Anderson breached several clauses of the contract; however, on appeal, plaintiff limits her discussion to the alleged breach of Andersons obligation to pay for the termite report, do the work recommended, and make necessary repairs, the alleged breach of Andersons obligation to disclose the defects in the house, such as the plumbing problems (garbage disposal) and leaky roof, and the alleged breach of her duty to provide accurate information in the TDS.
According to the record, Anderson provided a TDS. In the agents disclosure portion of the TDS, Hernandez stated: "OPENING IN LIVING ROOM WALL WHERE AQUARUM [sic] WAS INSTALLED AT ONE TI[ME,] CEILING IN BEDROOM IS SAGGING, AND HAS STAINS, SOME WIND[OWS] ARE NOT OPERABLE, HOLES ON CONTERTOP [sic] BEHIND KITCHEN SINK, CRACKS ON DRIVEWAY. [¶] PLEASE HAVE PROPERTY INPECTED [sic] BY A PROFESSIONAL HOME INSPECTOR." The TDS was provided to Risso no later than December 2, 2002. Plaintiff acknowledged that she hired Brown to inspect the property to make sure any kind of major defects would be uncovered before she made the final decision to purchase the property. At the end of the inspection, Brown provided plaintiff with a written report. Plaintiff responded to the report, indicating which items she would correct and which items she would not correct. Anderson employed Antimite and Kustom to inspect the property for termites. She then hired Kustom to perform certain remediation work with respect to the termite damage. Given this evidence, Anderson successfully proved that she fulfilled her contractual obligations and did not negligently nor intentionally conceal any defect.
On appeal, plaintiff points to her testimony about the property being "inundated with termites" after she moved in. Likewise, she claims that when she moved into the home, she discovered the garbage disposal had backed up into the dishwasher, the toilets had backed up in the bathrooms, and the roof leaked. Furthermore, she contends the TDS did not identify all of the defects; that she did not see it and her signature on it was forged. Based solely on her declaration, she argues there exists disputed issues over whether Andersons failure to tent the property amounted to a breach, whether Anderson failed to disclose all of the defects, and whether the TDS was intentionally withheld from her.
Plaintiffs evidence is insufficient to defeat Andersons motion for summary judgment. Anderson did what the contract required her to do. She disclosed what she knew, recommended that plaintiff have the property inspected, and addressed the termite issue. The written documents support a finding for Anderson. Whether or not plaintiff understood everything is irrelevant as to Anderson, because plaintiff was represented by a real estate agent. Moreover, whether the house should have been tented for termites instead of having a limited treatment is also irrelevant. Plaintiff was not required to purchase the property if she was not satisfied with how Anderson addressed the termite issue.
B. Fraud and Negligent Misrepresentation
"`The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment or nondisclosure); (b) knowledge of falsity (or "scienter"); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. [Citations.] [Citation.]" (Khan v. Shiley Inc. (1990) 217 Cal.App.3d 848, 857-858.) A negligent misrepresentation requires (1) a false statement of a material fact that the defendant honestly believes to be true, but made without reasonable grounds for such belief; (2) made with the intent to induce reliance; (3) reasonable reliance on the statement; and (4) damages. (See Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, 208, 211.)
Plaintiff claims the evidence she submitted about the leaking roof, major plumbing problems, and other defects raises material disputed facts about Andersons claim that she made no misrepresentations, negligent or intentional, or any omissions of material fact regarding the condition of the property. As we noted previously, disclosures were made by Anderson, and plaintiff had the property independently inspected. Given the record before this court, we cannot find any false representation, concealment, or nondisclosure. Accordingly, the trial court properly granted summary judgment in favor of Anderson.
C. Duty to Disclose Known Conditions of Property Which Materially Affect Its Value
Plaintiff contends triable issues of fact exist as to whether Anderson breached her duty to disclose known conditions of the property which materially affect its value. (Driver v. Melone (1970) 11 Cal.App.3d 746, 752 ["`It is now settled in California that where the seller knows of facts materially affecting the value or desirability of the property which are known or accessible only to him and also knows that such facts are not known to, or within the reach of the diligent attention and observation of the buyer, the seller is under a duty to disclose them to the buyer. [Citations.]"].) Specifically, plaintiff questions whether Anderson knew or should have known that the home needed $200,000 in repairs, that the termite infestation affected the structural integrity of the home and the roof, and that the evidence of damage was concealed with wallpaper, floor coverings, furniture and large appliances.
Here, Anderson disclosed the defects in the property. Furthermore, she recommended an independent inspection, and she had the property inspected for termites. Plaintiff had actual knowledge of cracks in various parts of the property, sealed windows, holes in the drywall, electrical problems, and termites. She had the report of her own inspector and two termite reports from separate companies. There was no defect that was not obvious or could not have been detected during an inspection. As Anderson points out, plaintiff had a duty to exercise reasonable care to protect herself as to those facts which were known, or could have been observed, regarding the property. (Civil Code, § 2079.5.) The defects about which plaintiff complains fall under these categories.
For these reasons, the trial court properly granted summary judgment in favor of Anderson.
D. Conclusion
We conclude the trial court properly found that plaintiff failed to show any triable issue of material fact. Plaintiffs causes of action under contract and tort theories rely on the premise that Anderson deceived her into purchasing a home with numerous defects. Because the undisputed facts show that Anderson provided a TDS to plaintiff, recommended an independent inspection, and had two termite inspections of the property conducted, there was no breach of contract. Likewise, because the undisputed facts show that plaintiff caused an independent inspection of the property to be conducted, defects were noted, Anderson responded to the demand to repair such defects, and plaintiff signed off on the defects/repairs, plaintiff is unable to show that Anderson engaged in negligent or intentional misrepresentation. Finally, because Anderson was represented by a real estate agent and had the property inspected, she is unable to show that Anderson was negligent in any duty she may have owed to plaintiff. For these reasons, the trial court properly granted Andersons motion for summary judgment.
IV. DISPOSITION
The judgment is affirmed. Anderson is to recover her costs on appeal.
We concur:
RAMIREZ, P.J.
KING, J. --------------- Notes: We note that plaintiffs opening brief is very scarce on argument and detailed citation to the record and to legal authority. "An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. . . . It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]" (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852, fn. omitted.) Nonetheless, we address plaintiffs issues as best we can.