Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC378031, Joseph R. Kalin, Judge.
Steven F. Helfand and Marcus Daniel Merchasin for Plaintiff and Appellant.
Law Offices of Alan S. Gutman and Alan S. Gutman for Defendants and Respondents.
JACKSON, J.
INTRODUCTION
Plaintiff Alan Kapilow appeals from a judgment dismissing the action as to defendants Judah Hertz and Popular Realty. The dismissal followed the sustaining of defendants’ demurrer to plaintiff’s third amended complaint without leave to amend. We affirm.
Although then Superior Court Judge Tricia A. Bigelow ruled on the demurrer, the judgment of dismissal was signed by Judge Joseph R. Kalin.
On appeal from a dismissal after a demurrer is sustained without leave to amend, we assume the truth of the complaint’s properly pleaded or implied factual allegations. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We also consider matters which have been or may be judicially noticed. (Ibid.; Sacramento Brewing Co. v. Desmond, Miller & Desmond (1999) 75 Cal.App.4th 1082, 1085, fn. 3.) We do not consider contentions, deductions or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.)
On June 23, 2005, plaintiff purchased real property known as the Mount Olympus Project (the Property) from Hai Waknine (Waknine) and Hadar Holdings, Inc. (Hadar). Plaintiff paid $6.2 million for the Property, which was partially developed and sold “as is.”
Waknine and Hadar were defendants below but are not parties to this appeal.
Coldwell Banker Residential Brokerage Company (Coldwell), as well as Allen M. Sarlo and Michael Sarlo (the Sarlos), advised plaintiff that he could purchase the Property at below market value, make relatively minor improvements and sell it for a substantial profit. The Sarlos “indicated that there were no significant problems associated with development of the Property with any governmental or quasi-governmental agencies.” They further “indicated that the Property was in substantial compliance with applicable building codes and regulations and only relatively minor changes and cosmetics [sic] enhancements and/or improvements would need to be accomplished to remedy any defects and/or deficiencies with the Property.” They affirmatively represented that the residential units on the Property were substantially built to code and that, for example, no environmental impact survey would be required for further development.”
Coldwell and the Sarlos were defendants below but are not parties to this appeal.
The Sarlos represented that they had performed adequate due diligence and were sufficiently familiar with the Property to recommend its purchase as a “sound” investment. They “downplay[ed] the risks associated with the purchase and intentionally minimize[ed] the substantial problems associated with the Property and/or failing to d[o] proper due diligence that would have yielded correct information in the first place.”
Coldwell and Allen Sarlo additionally “mislabel[ed] their/his pecuniary interest in the Property as something other than a commission.... In reality, Allen Sarlo and Coldwell took what was, in effect, a commission on the sale of the property but failed to make applicable disclosures to [plaintiff] concerning the nature and capacity of their/his representation of [plaintiff].”
Waknine and Hadar “represented that the Property was built by a reputable builder and that detailed specifications set forth in the various design plans were in conformity with applicable regulations, city development plans, zoning requirements, and environmental impact surveys.” They also “represented that the Property was built in substantial conformity with the design specifications prepared by licensed engineers and architects.” However, they “downplay[ed] the risks associated with the purchase and intentionally minimize[ed] the substantial problems associated with the Property, including those associated with the design specifications and compliance with applicable regulations and zoning requirements.” Waknine and Hadar also failed to disclose the existence of a major battle with surrounding homeowners regarding development of the Property.
Much of the battle over development of the Property is set forth in Arviv Enterprises, Inc. v. South Valley Area Planning Com. (2002) 101 Cal.App.4th 1333.
Defendants and Prosper Levy (Levy) were partners or quasi-partners with Waknine and Hadar. They “implemented a scheme to deceive subsequent purchasers, such as [plaintiff], concerning the Property. In effect, [they] conveyed title of the Property to Waknine and Hadar so as to ‘launder’ the Property, whereby Hadar and Waknine would be in a position to plausibly deny sufficient knowledge or any knowledge about the Property’s many problems and defects with respect to any subsequent conveyance in order to defeat applicable disclosure requirements.” The transfers to Waknine and Hadar “were done with insufficient consideration and were designed” to transfer a $2 million note encumbering the property to future purchasers.
Levy was a defendant below but is not a party to this appeal.
The scheme additionally shielded defendants and Levy from liability for Waknine’s and Hadar’s misrepresentations regarding the property. Defendants, Levy, Waknine and Hadar all “knew of existing problems with the Property and surrounding areas, including, inter alia, geological problems, height problems with existing residential structures, and requirements for the performance of an environmental survey and/or review prior to future development,” none of which was disclosed to plaintiff prior to his purchase of the Property. Waknine and Hadar then “feigned ignorance and concealed and misrepresented the facts so as to swindle [plaintiff].”
The Property was, in fact, worth only $1.2 million. Had plaintiff known this, he would not have purchased the Property.
PROCEDURAL BACKGROUND
Plaintiff filed this action on September 25, 2007. Of the 14 causes of action, only three—declaratory relief, fraud, and concealment—were against defendants.
Defendants filed a demurrer, to be heard on January 7, 2008. The bases of the demurrer were failure to state a cause of action and failure to plead with the requisite particularity.
Plaintiff filed opposition to the demurrer but then, on January 4, plaintiff filed a first amended complaint. Defendants were named in the same three causes of action.
Defendants again demurred on the bases of uncertainty and failure to state a cause of action. The trial court sustained the demurrer without leave to amend as to the declaratory relief cause of action and with leave to amend as to the causes of action for fraud and concealment.
Plaintiff filed a second amended complaint. Defendants were named in causes of action for civil conspiracy and joint enterprise. The trial court voided the second amended complaint on Michael Sarlo’s demurrer and motion to strike on the ground plaintiff failed to obtain permission to file the pleading.
Plaintiff then filed the operative third amended complaint, naming defendants in the causes of action for civil conspiracy and joint enterprise. On April 25, 2008, defendants filed their demurrer to the third amended complaint, to be heard on May 23, 2008. Again, the grounds for the demurrer were failure to state a cause of action and uncertainty.
On May 12, 2008, plaintiff filed an objection to inadequate notice for the demurrer, requesting that the demurrer be stricken. He filed no opposition to the demurrer.
The trial court overruled the objection, finding the demurrer was served in a timely manner. It also sustained defendants’ demurrer without leave to amend “on the grounds that (1) Plaintiff had previously been granted leave to amend his causes of action for fraud and concealment in his first Amended complaint and failed to do so; (2) ‘civil conspiracy’ ‘joint enterprise’ are not separate causes of action; and, (3) even if ‘civil conspiracy’ and ‘joint enterprise’ were viable causes of action, they would still fail because neither has been pled with the requisite degree of particularity and a potentially effective amendment is not apparent or consistent with Plaintiff’s theory of the case.”
DISCUSSION
Timeliness of Notice of Demurrer
Code of Civil Procedure section 1005, subdivision (b), provides that “all moving and supporting papers shall be served and filed at least 16 court days before the hearing.... However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days....”
Notice of defendants’ demurrer was served by mail on Friday, April 25, 2008. The hearing was set for Friday, May 23. Plaintiff argues the calculation of the time for service should be as follows: The first court day after Friday, April 25 was Monday, April 28. Counting that as the first day, the 16th court day was Monday, May 19. The five additional calendar days for service by mail extended the time to Saturday, May 24. Therefore, the notice was untimely as to the May 23 hearing.
According to defendants, the calculation of time for service should be as follows: Counting May 23 as the 16th day, 16 court days before the hearing would be May 2, requiring service by May 1, since the first day is not counted in the computation (Code Civ. Proc., § 12). Five additional calendar days for service by mail would be April 26, making service by mail on April 25 timely.
Defendants’ manner of calculation is correct. It is the only manner which renders the hearing date and date by which service must be effected certain. Once the hearing date is set, the 16 court days for service is easily calculable, as are the additional five calendar days for service by mail.
Plaintiff’s manner of calculation is simply unworkable. By his calculation, service here was one day late. If it were made one day earlier, on Thursday, April 24, the 16 court days for service would run to Friday, May 16. The additional five calendar days would extend the time for the hearing to Wednesday, May 21, two days earlier than the actual hearing date.
Defendants’ service of the demurrer by mail was timely. The trial court therefore properly overruled plaintiff’s objection that the demurrer was untimely and provided inadequate notice.
Merits of the Demurrer
Plaintiff acknowledges there is no cause of action for conspiracy or joint enterprise. Rather, it is a legal doctrine used to impose liability on those who do not commit a tort themselves but conspire with the actual tortfeasors. (Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1141.) In order to state a cause of action for civil conspiracy, plaintiff must allege “facts... which show the formation and operation of a conspiracy, the wrongful act of any of the conspirators thereto and damage resulting therefrom.” (117 Sales Corp. v. Olsen (1978) 80 Cal.App.3d 645, 649.) The facts alleged must either show the formation of the conspiracy or support an inference of conspiracy based on “‘“‘the nature of the acts done, the relations of the parties, the interests of the alleged conspirators, and other circumstances.’”’” (Ibid.)
Plaintiff here failed to allege facts showing the formation and operation of a conspiracy or facts which support an inference of conspiracy. The trial court therefore properly sustained defendants’ demurrer on the ground of uncertainty. (Code Civ. Proc., § 430.10, subd. (f); Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 841-842.)
Additionally, plaintiff was given leave to amend his causes of action for fraud and concealment. Instead, he attempted to state new causes of action for conspiracy and joint enterprise. Code of Civil Procedure section 473 provides a mechanism by which a party may obtain the trial court’s permission to amend a complaint to state a new cause of action (see Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047-1048), but plaintiff did not avail himself of this mechanism. His attempt to add new causes of action was without the court’s permission, and for this reason, the trial court did not err in sustaining defendants’ demurrer to the third amended complaint. (See Code Civ. Proc., § 472a.)
Plaintiff makes no contention regarding his cause of action for “joint enterprise.” Accordingly, any such contention is forfeited. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.)
Plaintiff argues that the trial court should have permitted him to amend his complaint to allege defendants’ liability based on conspiracy. This argument fails for two reasons. First, plaintiff failed to set forth, either in the trial court or on appeal, what facts he would allege to state a cause of action against defendants. This failure defeats any claim for relief. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.)
Second, plaintiff had multiple attempts to state a cause of action against defendants and failed to do so. The trial court does not abuse its discretion in denying leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)
DISPOSITION
The judgment is affirmed. Defendants are to recover their costs on appeal.
We concur: WOODS, Acting P. J., ZELON, J.