LELAND, ET AL. VS. BOAVIDA COMMUNITIES LLC, ET AL.

CASE NUMBER: 26CVG-00501 Tentative Ruling on Demurrer: Plaintiffs Boavida Communities, LLC, Reddingwood Mobile Home and RV Park, and Rhonda Little demur to Plaintiffs Rhonda Leland and Deborah Shipp’s First Amended Complaint. The Demurrer has been properly noticed and is unopposed.

The action arises out of Plaintiffs’ purchase of, and later eviction from, a mobile home. Plaintiffs generally allege that the sellers concealed material defects in the home and that they sold it through fraud and concealment. They seek rescission and restitution. The causes of action alleged are: 1) Fraud/Intentional Misrepresentation and Concealment, 2) Unlicensed and Noncompliant Mobile Home Sale, 3) Rescission and Restitution, and 4) Equitable Relief from Judgment. Defendants (except for Kimberly Mantovan who has not yet appeared) demur to each cause of action on the grounds of failure to state facts sufficient to constitute a cause of action, as well as uncertainty/ambiguity, and as to the first cause of action only, misjoinder.

Meet and Confer: CCP § 430.41 requires the demurring party to “meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The Declaration of Michael Dean establishes good faith attempts at compliance 5

with the meet and confer requirements.

Merits: A demurrer should be sustained if the complaint fails to “state facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal.

App. 4th 435, 438. No matter how unlikely, a plaintiff’s allegations must be accepted as true for the purpose of ruling on a demurrer. Del. E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. A plaintiff must plead ultimate facts that acquaint the defendant with the nature, source and extent of plaintiff’s causes of action. Doe v. City of Los Angeles (2007) 42 Cal. 4th 542, 550.

First Cause of Action – Fraud/Intentional Misrepresentation and Concealment. "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." Lazar v. Superior Court (1996) 12 Cal.4th 631, 638. “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations] Thus the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect. [Citation.] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. " Id. at 645 (internal citations omitted).

Here, Defendants argue that Plaintiff has failed to allege fraud with the requisite specificity. The Court agrees that this cause of action is not adequately pled. Plaintiffs allege material misrepresentations and/or concealment by the Defendants. Specifically at paragraphs 33-34 of the FAC, Plaintiff’s allege that Defendants made false, misleading, and/or incomplete representations regarding who conducted and participated in the sale, their licensing status, the tax/tile-record issues connected to Stephen Root and undisclosed material defects affecting the home.

The FAC also alleges justifiable reliance (paragraph 35) and resulting damages (paragraph 36). However, the FAC fails to allege the elements of: 1) knowledge of falsity, and 2) intent to defraud. These elements must also be pled with particularity – specific facts which show who Plaintiff alleges had knowledge of falsity and the intent to defraud. The demurrer as to the first cause of action is SUSTAINED with leave to amend on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty.

Second Cause of Action – Unlicensed and Noncompliant Mobile Home Sale. Plaintiff’s second cause of action generally alleges that the sale of the mobile home was noncompliant because the sale was conducted by an unlicensed salesperson, Rhonda Little, but the sales documentation identified Kimberly Mantovan as the salesperson. Plaintiffs further allege that a licensed dealer or salesperson must conduct a diligent inspection and disclose material facts that would affect value or desirability of the home.

Plaintiffs allege Health and Safety Code 18045, 18406, and 18061.5 makes this an unlawful sale. Defendants argue that “noncompliant mobile home sale” is not an independent cause of action, and that Plaintiffs’ remedy was to complain to the Department of Housing and Community Development. The Court agrees with Defendant. The statutes cited above are part of the Manufactured Housing Act of 1980 – Health and Safety Code sections 18000 et seq. The statute provides for system of licensing and enforcement by the Department of Housing and Community Development.

This includes the power to issue citations and assess civil penalties 6

for violations of the act, including the sections alleged in the Complaint. See HSC § 18021.7. “A violation of a state statute does not necessarily give rise to a private cause of action. [Citations] Instead, whether a party has a right to sue depends on whether the Legislature has “manifested an intent to create such a private cause of action” under the statute. Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596. The Court does not find the legislature manifested an intent to create a private cause of action under HSC §§ 18045, 18406, 18061.5, 18062.2. Therefore, the demurrer as to the second cause of action is SUSTAINED without leave to amend on the grounds of failure to state facts sufficient to constitute a cause of action.

Third Cause of Action – Rescission and Restitution. Plaintiffs plead rescission and restitution as a stand alone cause of action. Defendant argues that these are forms of relief that may be granted upon proper pleading and proof of certain causes of action. Defendants are correct. “There is no freestanding cause of action for “restitution” in California.” Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 661. “[R]escission stands as a contract remedy. [Citations] Rescission is generally understood to mean the “unmaking of a contract.”

People ex rel. Kennedy v. Beaumont Investment, Ltd. (2003) 111 Cal.App.4th 102, 133. Plaintiffs may be entitled to pray for these remedies, but they do not constitute stand alone causes of action upon which relief may be granted. Therefore, the demurrer as to the third cause of action is SUSTAINED without leave to amend on the grounds of failure to state facts sufficient to constitute a cause of action.

Fourth Cause of Action – Equitable Relief From Judgment. Under the fourth cause of action, Plaintiffs allege that “the eviction judgment arose from Defendants’ attempt to terminate the tenancy based on Plaintiffs’ inability to complete repairs by a deadline imposed by Defendants...” (paragraph 48). Plaintiffs go on to request that judgment be vacated or set aside. Defendants argue that the court has no jurisdiction to disturb a final judgment in a separate unlawful detainer action, and that motions to vacate a judgment under CCP 473 must be filed in the case in which they seek relief.

Here, Plaintiff makes an unsupported allegation of extrinsic fraud. As discussed in relation to the first Cause of Action, fraud must be pled with particularity. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. Here, Plaintiff merely alleges that “Defendants’ concealment, misrepresentations, and/or incomplete presentation of material facts prevented Plaintiffs from receiving a fair opportunity to present the full defense and related claims.”

This is insufficient to overcome the demurrer. As noted in relation to the First Cause of Action, Plaintiffs shall have leave to amend their complaint, if possible to allege fraud and concealment. However, the Fourth Cause of Action alleges a remedy, rather than a cause of action. If the Plaintiffs are able to adequately plea a cause of action for fraud and concealment, they may include as a remedy a request for equitable relief. Otherwise, the Fourth Cause of Action fails to adequately identify a separate viable cause of action and therefore the demur to this cause of action in SUSTAINED without leave to amend.

In summary, Defendants’ Demurrer is SUSTAINED as to each cause of action. Leave to amend is granted as to cause of action one only. Plaintiffs will have 10 days’ leave from service of notice of entry of order to file a second amended complaint. The proposed order will be modified.

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