Opinion
D073016
03-27-2018
NAGI ISKANDER, as Trustee, etc., Plaintiff and Appellant, v. JEROME BIDDLE et al., Defendants and Respondents.
Guy R. Lochhead; Esner, Chang & Boyer, Stuart B. Esner and Joseph S. Persoff for Plaintiff and Appellant. Hanger, Steinberg, Shapiro & Ash, Jody Steinberg and Whitney L. Bost for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CIVDS1405337) APPEAL from a judgment of the Superior Court of San Bernardino County, Brian S. McCarville, Judge. Affirmed. Guy R. Lochhead; Esner, Chang & Boyer, Stuart B. Esner and Joseph S. Persoff for Plaintiff and Appellant. Hanger, Steinberg, Shapiro & Ash, Jody Steinberg and Whitney L. Bost for Defendants and Respondents.
Nagi Iskander, as Trustee of the Nagi Iskander and Amal Iskander AB Living Trust (Iskander), appeals following a summary judgment entered in favor of defendants Jerome Biddle and Susan Biddle in Iskander's lawsuit alleging fraudulent concealment, negligent misrepresentation and rescission in connection with his purchase of a building owned by the Biddles. Specifically, Iskander contends that the summary judgment should be reversed because it was based on an erroneous ruling sustaining some of the Biddles' evidentiary objections to the declarations submitted by Iskander in opposition to the summary judgment motion. We conclude that Iskander's argument lacks merit, and accordingly we affirm the judgment.
We refer to Jerome and Susan Biddle collectively as the Biddles, and individually as Mr. Biddle and Susan Biddle.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Iskander's Purchase of the Building
In 2008, the Biddles bought an approximately 6,100 square foot building at 338 W. 7th Street in San Bernardino (the Building). The Building is in an area zoned Residential Medium-High Zone, which permits multi-family housing. When the Biddles bought the Building, the prior owner was residing in it.
In 2008 the Biddles' corporation took title to the Building, and in 2011, the Biddles themselves took title to the Building.
In 2012, the Biddles entered into a lease for Barbara Ann Haskins to use the Building as a sober living home or as housing for individuals with disabilities. According to Mr. Biddle's declaration, in 2012 he "obtained approval" from the City of San Bernardino (the City) to use the Building for that purpose.
In mid-December 2013, Iskander responded to the Biddles' listing of the Building for sale. Iskander met with Mr. Biddle and discussed the purchase of the Building. At that time, there were seven tenants and one property manager residing in the Building, and Iskander was aware of that fact. According to the operative complaint, Mr. Biddle told him "he had been using the [B]uilding as a mixed use, residential/commercial property since coming into possession. He pointed out the modifications he had made with respect to the residential portion and informed [Iskander] that a 2,000 square foot area, then vacant, could be subdivided into individual rooms."
Iskander admits that he did not have any direct dealings with Susan Biddle concerning the sale of the Building.
According to Haskins's declaration, by mid-2013, she was no longer leasing the Building, and the tenants of the Building at the time may have included some of her former clients.
The trial court sustained the Biddles' evidentiary objection to the portion of Iskander's declaration directly preceding this sentence, and Iskander challenges the evidentiary ruling. That portion of Iskander's declaration stated that at the meeting "Mr. Biddle also told me that he was at that time renting out rooms in the property for people to live in, that he had eight such tenants at the time, and that I could expect to make $3,300 per month in rental income if I bought the property. Mr. Biddle told me also that a large, unoccupied portion of the first floor, about 2,000 square feet, could be converted into apartments to rent out to people to live in, or into offices to rent to businesses, for even greater profits." We need not, and do not, determine whether Iskander's challenge to the ruling sustaining the evidentiary objection to this statement has merit. For the purposes of our analysis of the summary judgment motion, other admissible evidence adequately sets forth the representations that Iskander claims Mr. Biddle made to him.
According to his declaration, Iskander called the City to confirm that the Building was located in a Residential Medium-High Zone, and he agreed to purchase the Building for $350,000 in an all-cash sale that closed on or about December 27, 2013. Iskander wanted to close the sale by the end of the year for tax purposes. Iskander did not hire anyone to perform an inspection of the interior of the Building. No real estate agents or brokers were involved in the transaction. The escrow instructions prepared by the title company comprises the only written documentation of the transaction. The escrow instructions state that "as a memorandum only to this escrow . . . it is mutually agreed by the parties . . . that Buyer is purchasing the subject property in its 'as-is' present condition without the benefit of a Structural Pest Control Report." B. The City's Code Enforcement Case and Closure of the Building Following Iskander's Unpermitted Remodel
The parties dispute whether the "as-is" condition of the sale relates only to structural pest control issues, and whether the "as-is" condition of the sale precludes Iskander's fraudulent concealment and negligent misrepresentation claims. We need not, and do not, address those issues as we conclude summary judgment was properly granted on other grounds.
Iskander hired a contractor to remodel the Building immediately upon purchasing it. Iskander admits that he did not submit any construction plans to the City or obtain a permit for the construction.
After receiving complaints about illegal construction work, the City inspected the Building at the end of January 2014, and instituted a code enforcement case. The record contains some documentation from the City related to the code enforcement case. Specifically, according to a print-out from the City, on January 30, 2014, the fire department posted a notice stating that the building could not be lived in or slept in until the owner was able to obtain a certificate of occupancy, and a notice of closure of the Building was issued on February 3, 2014.
The provision that Iskander was alleged to have violated was described by the City as providing that "[n]o building or structure shall be used or occupied, and no change in the existing occupancy classification of a building or structure or portion thereof shall be made until the building official has issued a certificate of occupancy therefor as provided herein. . . . The property owner shall immediately discontinue the non-conforming use of the structure until all necessary permits, inspections and approvals are obtained from the Building & Safety Department." The record contains a "Hearing Officer Order" from the City's Code Enforcement Division following a hearing held on March 27, 2014. The order states that Iskander shall: "1. Immediately remove and maintain property free of trash and debris. [¶] "2. Within sixty (60) days . . . obtain permits and/or plans if required to obtain a certificate of occupancy. All work shall be completed within sixty (60) days of obtaining the necessary permits. All work must be inspected and approved by the Community Development Department, Fire Department and Code Enforcement Division."
The documentation from the City does not describe the nature of the code violations at issue, whether they are solely related to the unpermitted remodeling work that Iskander undertook after purchasing the Building as opposed to the preexisting structure of the building, and whether the problems first came to light only after the inspection occasioned by the unpermitted remodeling. Iskander's declaration submitted in this case provided limited additional information about what the City told him regarding the problems that led to the commencement of the code enforcement case and the closure of the Building. In his declaration, Iskander stated that "Code Enforcement Division officials inspected the property and informed me that the building was permitted to be used for only commercial purposes, not for residential purposes, . . . and that therefore the residential use of the property was unlawful—in spite of the fact that it is located in an area zoned for residences. The City soon forced me to evict all the tenants and shutter the building, finding it unsuitable for any purposes until rehabilitated to modern earthquake standards." Like the documentation from the City, Iskander's declaration does not establish why the Building was not permitted to be used for residential purposes or when the problem arose. C. The Instant Lawsuit
On April 30, 2014, Iskander filed a lawsuit against the Biddles. The operative first amended complaint (the complaint) alleged causes of action for fraudulent concealment and negligent misrepresentation against Mr. Biddle, and a cause of action for rescission of the sale of the Building against both of the Biddles based on the alleged fraudulent concealment and negligent misrepresentation.
Specifically, in the fraudulent concealment cause of action, Iskander alleged two items that Mr. Biddle purportedly concealed from him. First, he alleged that Mr. Biddle "knew that he was using the property in violation of City ordinances by permitting individuals to use portions of the building as a Sober Living Home" but "actively concealed this fact" from Iskander. Second, he alleged that Mr. Biddle "intended to deceive [Iskander] by concealing the fact that the building was zoned for strictly commercial, and not multi-use, purposes."
In the negligent misrepresentation cause of action, Iskander alleged that, with no reasonable ground for believing it to be true, Mr. Biddle told him that "a vacant 2,000 square foot portion of the building could be used . . . to house up to 40 low-income individuals." According to Iskander it was negligent for Mr. Biddle to make such a representation because "he himself had been using the property for residential purposes in violation of City ordinances since March of 2012." The negligent misrepresentation cause of action does not specify which "City ordinances" prevented Mr. Biddle from using the property for residential purposes, but the complaint appears to be referring back to more specific allegations in the prior portions of the complaint, namely that (1) the Building was zoned "for strictly commercial" use; and (2) certain unidentified City ordinances prohibited the Building from being used as a sober living home.
The Biddles filed a motion for summary judgment on October 21, 2015. Among other things, the summary judgment motion presented evidence to rebut both of the factual premises specifically alleged in the complaint as the basis for the fraudulent concealment and negligent misrepresentation causes of action, namely that (1) "the [B]uilding was zoned for strictly commercial, and not multi-use, purposes;" and (2) that City ordinances prohibited the Building's use as a sober living home.
First, to negate the allegation the Building was purportedly in an area zoned strictly for commercial use, the Biddles submitted evidence establishing that the factual premise of that allegation failed. Specifically, the Biddles submitted documentation from the City showing that the Building was located in a Residential Medium-High Zone and that Iskander admitted he was given that same information when he contacted the City to inquire about zoning.
Second, to negate the allegation that the City ordinances prohibited the use of the Building as a sober living home, Mr. Biddle submitted a declaration stating that he had obtained approval from the City to use the Building as a sober living home in March 2012. Specifically, he declared, "In or around March 2012, . . . Haskins approached me about leasing the subject property for use as a sober living facility. I, along with Ms. Haskins, went to the City of San Bernardino and advised them of the proposed use of the building, and obtained approval from the City for such use."
In his opposition to the summary judgment motion Iskander approached the two above-described factual issues as follows. As to the zoning issue, Iskander admitted that the Building was located in an area zoned Residential Medium-High, which permits multi-family housing. Therefore, that allegation in the complaint is no longer viable and cannot serve as a factual basis for Iskander's fraudulent concealment or negligent misrepresentation claims.
With respect to the issue of whether City ordinances prohibited the use of the Building as a sober living home at the time the Biddles owned the Building, Iskander submitted the declaration of Haskins, which contained two statements relating to that issue. First, Haskins stated in her declaration that she never accompanied Mr. Biddle to the City's offices "to advise anyone of anything or to obtain approval from anyone for anything at any time." Second, according to Haskins, in attempting to receive client referrals for residents to live in the Building, she met with Charles Pierce, who was an administrator at Community Hospital of San Bernardino. Haskins stated, that "Mr. Pierce inspected the property and evidently checked with the City about its permitted uses. In at least one conversation between Mr. Pierce, Mr. Biddle, and me, Mr. Pierce said that he could not and would not refer any patients to me to house at the [Building] because the property was not properly permitted and zoned for mixed use or residential purposes."
The Biddles submitted evidentiary objections to certain of the statements in Haskins's and Iskander's declarations. Among the objections that the trial court sustained was an objection to the statement by Haskins that we have quoted above, explaining that Pierce told her and Mr. Biddle that the Building was not properly permitted or zoned for residential use.
The trial court granted the Biddles' motion for summary judgment. As to the fraudulent concealment cause of action, the trial court explained, among other things, that "[t]he defendant never got any information or never had any complaints from the City of San Bernardino with respect to the use," and "[t]he plaintiff admits that the property was residential medium/high." With respect to the negligent misrepresentation cause of action, the trial court explained, among other things, that "the defendant had reasonable grounds to believe the representations" at issue, and that there was "no notice from the City." Finally, with respect to the rescission cause of action, the trial court observed that failed because it was dependent on plaintiff prevailing on the first two causes of action.
The trial court denied Iskander's motion for reconsideration, and entered judgment in favor of the Biddles.
II.
DISCUSSION
Iskander challenges the ruling granting summary judgment in favor of the Biddles. He contends that if the trial court had not erroneously sustained several of the Biddles' evidentiary objections, the record would establish disputed issues of material fact sufficient to defeat the summary judgment motion. A. Legal Standards Governing Summary Judgment Motions
Code of Civil Procedure section 437c, subdivision (c) provides that summary judgment is to be granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. A defendant "moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant may meet this burden either by showing that one or more elements of a cause of action cannot be established or by showing that there is a complete defense. (Ibid.)
If the defendant's prima facie case is met, the burden shifts to the plaintiff to show the existence of a triable issue of material fact with respect to that cause of action or defense. (Aguilar, supra, 25 Cal.4th at p. 849; Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) "[T]o meet that burden, the plaintiff 'may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .' " (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) Ultimately, the moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar, at p. 850.)
As important here, " '[t]he pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.]' . . . Thus, a 'defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.' . . . 'To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion.' " (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253, citations omitted.) Iskander made no request to amend his pleadings. Thus, the Biddles' summary judgment motion properly focused only on the allegedly concealed facts and negligent misrepresentations pled in the complaint.
We review a summary judgment ruling de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972.) " 'Since defendants obtained summary judgment in their favor, 'we review the record de novo to determine whether [it has] conclusively negated a necessary element of the plaintiff's case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial." ' " (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.)
Although a review of a judgment following the granting of a summary judgment requires an independent review, "[a] different analysis is required for our review of the trial court's . . . rulings on evidentiary objections. Although it is often said that an appellate court reviews a summary judgment motion 'de novo,' the weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard." (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694; see also DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.) A trial court abuses its discretion only when, in its exercise, the trial court 'exceeds the bounds of reason,' such that " ' "no judge could reasonably have made the order that he [or she] did." ' " (DiCola, at p. 679.) B. The Factual Predicate Needed for Iskander to Prevail on His Claims of Fraudulent Concealment and Negligent Misrepresentation
As the parties acknowledge, our Supreme Court has not weighed in on the proper standard of review for evidentiary rulings made in the context of a summary judgment motion. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 ["we need not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo"].) We need not consider whether to revisit the weight of authority on the issue, as we will conclude that regardless of whether the trial court correctly ruled on the evidentiary objections, the summary judgment was properly granted.
"The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact." (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)
A claim of negligent misrepresentation, requires a plaintiff to establish " ' "[m]isrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another's reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage.' " . . . [¶] . . . The tort thus encompasses ' "[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true." ' " (Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 175, citations omitted.)
Based on the elements of these two causes of action and the theories pled in Iskander's complaint, he will not be able to prevail on either claim unless he establishes at trial that at the time Mr. Biddle spoke with Iskander about the sale of the Building, the two factual premises set forth in his complaint were true, namely (1) that the Building was not zoned for residential purposes; and (2) City ordinances prohibited the Building from being used as a sober living home. As set forth above, the Biddles met their initial burden on summary judgment to show that neither factual premise is true. As we will explain, Iskander did not submit admissible evidence in opposition to the summary judgment to create a triable issue of material fact on either issue. C. Summary Judgment Was Properly Granted Regardless of Whether the Trial Court Erred in the Ruling on the Objection Because No Evidence Supports a Finding That the Building Could Not Legally Be Used as a Sober Living Home When the Biddles Owned It
As an initial matter, we note that, as we have described above, there is no longer any dispute as to whether the Building is in an area zoned Residential Medium-High. Iskander admitted that fact in his response to the Biddles' separate statement of undisputed facts. Accordingly, to the extent that the fraudulent concealment or negligent misrepresentation causes of action are based on that factual premise, Iskander has effectively conceded that such a theory is no longer viable.
Accordingly, the remaining issue is whether Iskander submitted evidence to create a triable issue of fact as to whether the Biddles were using the Building as a sober living home in violation of City ordinances. Two statements in Haskins's declaration are directed at attempting to create a triable issue of material fact on that subject.
First, Haskins stated in her declaration that she never physically accompanied Mr. Biddle to the City's offices. Specifically, Haskins made the following statement:
"I understand that Mr. Biddle claims that he and I went to visit an office in the City of San Bernardino for the purpose of getting approval for using the property as mixed use, both commercial and residential. I understand that he claims that we went there together in or about March 2012, that I filled out an application and submitted it, that we spoke with a clerk and a supervisor, and that the supervisor approved the zoning of the building for commercial and residential purposes. None of that is true. Mr. Biddle and I never went together to any office of the City of San Bernardino to advise anyone of anything or to obtain approval from anyone for anything at any time."
Initially, we note that most of Haskins's statement relates to zoning issues, which Iskander has conceded are no longer in dispute. Thus, Haskins's statement that she did not go with Mr. Biddle to obtain approval of "the zoning of the building for commercial and residential purposes" is not relevant to any disputed issue.
The remaining catch-all last sentence of the paragraph arguably may not relate to zoning. In that sentence, Haskins denies that she and Mr. Biddle ever physically "went together" to a City office to obtain approval "from anyone for anything at any time." It is unclear whether, in stating that "I, along with Ms. Haskins, went to the City of San Bernardino," Mr. Biddle meant to say that he physically went together with Haskins to obtain approval for the sober living home. If so, Haskins's declaration creates a factual dispute on that issue. However, that dispute is not material. "[M]ateriality depends on the issues in the case . . . What matters are in issue (and consequently material) is determined mainly by the pleadings, the rules of pleading, and the substantive law relating to the particular kind of case." (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1114.) "To be 'material' for purposes of a summary judgment proceeding, a fact must relate to some claim or defense in issue under the pleadings . . . , and it must also be essential to the judgment in some way." (Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470, citation omitted.) The causes of action in Iskander's complaint do not depend on whether or not Mr. Biddle and Haskins physically went together at the same time to obtain approval for the Building as a sober living home. Instead, Iskander's causes of action, as pled, require Iskander to prove that the Biddles were operating the Building as a sober living home in violation of City ordinances. Haskins could have created a triable issue of material fact if she had been able to make a statement, based on personal knowledge, that the City did not approve the use of the Building as a sober living home, but she did not do so.
Second, Iskander relies on a second paragraph in Haskins's declaration to attempt to create a triable issue of fact as to whether the Building was being used as a sober living home in violation of City ordinances. However, the trial court sustained the Biddles' evidentiary objection to that evidence. As the centerpiece of his appeal, Iskander contends that the trial court improperly sustained the objection to that portion of Haskins's declaration, and that the trial court accordingly erred in granting the summary judgment motion.
In his appellate brief, Iskander also challenges other evidentiary rulings made by the trial court. However, because the evidence at issue in those rulings does not concern the required showing that the Building in fact could not be used as a sober living home, we need not and do not examine those evidentiary rulings in determining that the trial court properly granted summary judgment.
The second statement at issue in Haskins's declaration was as follows: "Mr. Pierce inspected the property and evidently checked with the City about its permitted uses. In at least one conversation between Mr. Pierce, Mr. Biddle, and me, Mr. Pierce said that he could not and would not refer any patients to me to house at the [Building] because the property was not properly permitted and zoned for mixed use or residential purposes." The Biddles objected to this statement on the following grounds: "Hearsay: (Evid. Code § 1200): Plaintiff is offering an inadmissible hearsay statement of Mr. Pierce, a hospital administrator, against the Biddles. Lacks foundation ([id.] § 403): The Declarant has not proffered any preliminary evidence to lay the foundation as to the hospital administrator's knowledge about zoning permits or any other City business, his ability to research and opine on such, or his alleged process of obtaining this information from the City. Conclusory." The trial court sustained the objection, but did not specify the grounds for its ruling.
Clearly, because Iskander has admitted that the Building is in fact in an area zoned for residential use, Pierce's statement that the Building was "not . . . zoned for mixed use or residential purposes" is not relevant here, and is demonstrably untrue.
Haskins's declaration also contained a follow-up statement regarding the conversation with Pierce, to which an objection was sustained. Specifically, Haskins stated, "Mr. Biddle participated actively in the conversation, and there is no doubt that he received the message from Mr. Pierce that the building could not legally be used to rent rooms to people to live there." The Biddles objected to the statement as argumentative, speculative, conclusory and lacks foundation. We conclude the objection was properly sustained because it is speculative and lacks foundation as to Haskins's ability to testify to whether Mr. Biddle "received the message," which is a description of Mr. Biddle's state of mind upon hearing Pierce's statement. However, even were we to conclude that the objection was not properly sustained, the presence of Haskins's statement in the record would not change the outcome of our analysis because it goes only to the issue of whether Mr. Biddle was put on notice, not whether in fact the Building was being used as sober living home in violation of City ordinances.
Iskander acknowledges that the hearsay and lack of foundation objections were properly sustained to the extent the statement was being used to establish the truth of what Pierce said to Haskins and Mr. Biddle as relevant here, namely that the Building was "not properly permitted" as a sober living home. Specifically, Iskander does not dispute that if offered to establish that, in fact, the Building was not permitted to be used as a sober living home, the statement would clearly be hearsay and lack a proper foundation because it would be an out of court statement offered for the truth of the matter asserted and because there is no foundation for Pierce's personal knowledge about the City's permitting and zoning requirements. (Evid. Code, § 1200, subd. (a) [hearsay evidence is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated"]; id., § 702, subd. (a) ["the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter"].)
Iskander contends that the trial court nevertheless should have admitted the evidence to the extent it was offered to establish that Mr. Biddle was put on notice and obtained knowledge of the purported fact that the Building was "not properly permitted" for use as a sober living home. In support of this argument, Iskander relies on the principle that "[a]n out-of-court statement is not hearsay if offered to show the effect on the hearer, reader or viewer rather than to prove the truth of the content of the statement—e.g., that a party had prior notice or knowledge; that a party was given a warning; or to prove a party's motive, good faith, fear, etc. (where such notice, knowledge, motive, fear, etc. is relevant to an issue in the case)." (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2017) ¶ 8:1049, p. 8D-13.)
However, even were we to agree with Iskander that the evidence should have been admitted for the limited purpose of attempting to show that Mr. Biddle was on notice and had knowledge that the Building was "not properly permitted" to be used as a sober living home, the admission of the evidence for that purpose does not carry Iskander's burden to create a triable issue on the question before us, namely whether in fact the Building was being operated as a sober living home in violation of City ordinances. If the statement by Mr. Pierce described in Haskins's declaration is accepted into evidence for the purpose of attempting to establish knowledge and notice, the use of the evidence for that limited purpose does not create a triable issue on the underlying factual allegation that, in fact, the Building was not permitted to be used as a sober living home. Put simply, evidence admitted to show that Mr. Pierce said something to Mr. Biddle about the Building not being properly permitted, but not for the truth of that statement, does not create a triable issue as to whether, in fact, the Building could properly be used as a sober living home.
Iskander submitted no admissible evidence on the fundamental issue of whether it was against City ordinances for Mr. Biddle to use the Building as a sober living home. Specifically, Iskander's declaration does not provide any evidence to create a triable issue of fact on that issue. Although Iskander stated in his declaration that after he purchased the Building and commenced his unpermitted remodeling work, Code Enforcement Division officials told him "that the building was permitted to be used for only commercial purposes, not for residential purposes, . . . and that therefore the residential use of the property was unlawful," Iskander submitted no information about why the City told him that the Building was "permitted to be used for only commercial purposes" and whether that problem arose as a result of his remodeling work and the subsequent inspection or whether it was a problem that existed at the time the Biddles owned the Building. Iskander's reliance on what a City official told him in late January 2014 to establish that "[i]t is undisputed that the property cannot be used for residential purposes" does not carry Iskander's burden to submit evidence that Biddles were using the Building as a sober living home in violation of City ordinances. Iskander's declaration contains evidence only as to whether, after his unpermitted remodeling work, the Building may be used to house residents. Without the ability to establish the fundamental premise that the Building was being used by the Biddles as a sober living home in violation of City ordinances, Iskander has not met his burden to establish a triable issue of material fact.
In his reply brief, Iskander refers to two more items of evidence, apart from Haskins's declaration, that might relate to the issue of whether the Biddles were using the Building as a sober living home in violation of City ordinances. Specifically, he points to evidence showing that (1) the Building was identified by the water district as a "commercial" building, and (2) the Biddles' sale listing for the Building identified it as a "commercial" property. We reject Iskander's reliance on those items of evidence to carry his burden to create an issue of disputed fact, as neither item has anything to do with whether City ordinances prohibited the Building from being used as a sober living home.
Further, contrary to Iskander's claim in his reply brief that "[i]t is undisputed that the property cannot be used for residential purposes," the Biddles have never conceded that there was any prohibition on using the Building for residential purposes at the time they sold the Building to Iskander. As we have explained, the Biddles met their initial burden to submit evidence negating the specific allegations in the complaint on that issue by showing that (1) the Building is in an area zoned for residential use; and (2) Mr. Biddle was given approval from the City to use the Building as a sober living home. To defeat summary judgment, it was Iskander's burden to submit admissible evidence creating a triable issues of material fact as to whether, at the time he bought the Building, it could not be used for residential purposes. He failed to do so.
Therefore, we conclude that summary judgment was properly granted. After the Biddles met their initial burden to show that the City approved of the use of the Building as a sober living home and that the Building was in an area zoned for residential use, Iskander submitted no admissible evidence sufficient for a jury to reach a contrary finding. With no evidence that City ordinances prohibited the use of the Building as a sober living home or that the Building was not in an area zoned for residential use, there is no remaining basis for Iskander's fraudulent concealment or negligent misrepresentation causes of action as pled in the complaint.
DISPOSITION
The judgment is affirmed.
IRION, J. I CONCUR: BENKE, Acting P. J. DATO, J., dissenting.
My point of dispute with the majority is a narrow one. We agree that in bringing his motion for summary judgment, defendant Biddle bore the initial burden of negating two factual predicates: (1) was the building zoned strictly for commercial use, and (2) was Biddle improperly using the building as a sober living facility without City approval at the time of the sale? (Maj. opn., ante, p. 7.) We likewise agree that Iskander ultimately admitted the property was zoned Residential Medium-High, eliminating the first issue. (Maj. opn., ante, p. 8.) So we are left with a simple question. Did Biddle meet his burden as the moving party on summary judgment of showing that the building was approved by the City for residential use when the sale of the property was finalized?
Biddle introduced very little evidence in support of his motion, and there is but one piece that addresses the approved use of the property. As the majority notes, Biddle's declaration states, "In or around March 2012, Barbara Ann Haskins approached me about leasing the subject property for use as a sober living facility. I, along with Ms. Haskins, went to the City of San Bernardino and advised them of the proposed use of the building, and obtained approval from the City for such use." He adds that he "never received any correspondence or communications from the City, or any other person or entity, indicating that the property was being used for an improper purpose."
Whether the property was approved by the City for use as a residential facility is, of course, a different question from whether Biddle knew or should have known that the property was not approved for residential purposes. Quite properly, the majority do not seek to affirm summary judgment on grounds that Biddle's mental state does not present a triable issue of fact. Although Biddle claimed he had no knowledge that the property could not be used for residential purposes, Haskins's declaration recounted a meeting she attended with Biddle and Community Hospital administrator Charles Pierce in which Pierce allegedly told Biddle "the property was not properly permitted and zoned for mixed use or residential purposes." To the extent the majority suggest that Biddle's objection to Haskins's statement was properly sustained, I disagree. While it may be that Haskins could not testify as to how Biddle "received" the message, she was certainly able to state what Pierce told Biddle at the meeting to prove notice and knowledge. (See, e.g., City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 294 [statements are not inadmissible hearsay if offered to prove notice to the recipient].) --------
I agree Biddle's declaration shifted the burden to Iskander to introduce evidence that would create a triable issue of fact as to whether the property was approved by the City for use as a residential structure. That is exactly what Iskander did. He submitted Haskins's directly contrary declaration: "I understand that Mr. Biddle claims that he and I went to visit an office in the City of San Bernardino for the purpose of getting approval for using the property as mixed use, both commercial and residential. I understand that he claims that we went there together in or about March 12, that I filled out an application and submitted it, that we spoke with a clerk and a supervisor, and that the supervisor approved the zoning of the building for commercial and residential purposes. None of that is true. Mr. Biddle and I never went together to any office of the City of San Bernardino to advise anyone of anything or to obtain approval from anyone for anything at any time." (Italics added.)
Biddle relied on a specific event—going with Haskins to City of San Bernardino offices to obtain City approval for use of the building as a sober living facility. According to his declaration, the City gave Biddle and Haskins its approval. According to Haskins, no such event ever took place. This would appear to present a classic case of a disputed factual issue.
Yet the majority find no issue of material fact, reaching this conclusion because they believe the fact admittedly in dispute is not material. Whether Haskins personally accompanied Biddle to City offices, they say, isn't critical. What is important is whether Biddle obtained City approval. We are told that simply by contradicting Biddle's story that she accompanied him, Haskins's declaration is insufficient to create a triable issue of material fact.
But it is Biddle who chose to provide the details of his meeting with Haskins and the City. He made Haskins a critical percipient witness, one who, as it turns out, would not corroborate his version of the events. It may be, of course, that Biddle was simply mistaken in believing that Haskins was present. It is possible that the City approved the use of the property as a residential facility when Biddle visited City offices by himself, or in the company of a different individual. But these are hardly the only inferences that can be drawn from the two contradictory declarations. The conflict presents a factual question that must be resolved by a trier of fact, not by the court on a motion for summary judgment.
I would reverse.
DATO, J.