Davidoo v. Gold Coast Pool Construction

Davidoo v. Gold Coast Pool Construction

Friday – August 21, 2026 Judge Trentacosta, Dept. 42

Motion: Defendant Ker-Mar Concrete LLC’s Demurrer to the First Amended Complaint (Opposed) TENTATIVE: The Court intends to SUSTAIN Defendant Ker-Mar Concrete LLC’s Demurrer to the First Amended Complaint, with leave to amend, on grounds that, as alleged, Plaintiffs lack standing to pursue the first cause of action for negligence against moving-party Defendant. See Keru Investments, Inc. v. Cube Co. (1998) 63 Cal.App.4th 1412; Krusi v. S.J. Amoroso Construction Co. (2000) 81 Cal.App.4th 995. All other grounds are overruled. Background:

The court will not recite in detail all of the procedural and factual history of this case as the parties are fully familiar with the matters at issue. Suffice to say, this is a breach of contract and construction defect action arises from Allen Davidoo (“Allen”) and Michelle Davidoo’s (“Michelle” and collectively the “Plaintiffs”) purchase of a single-family home located at 46 Cinch Road in Bell Canyon. Defendants Andrew Hillas and Valerie Hillas (“Ms. Hillas” and collectively the “Hillases”) were the former owners and sellers of the subject property.

Plaintiffs and the Hillas entered into a written purchase agreement in September 2022. In 2021, prior to the sale, the Hillases had contracted with Gold Coast Pool Construction (“Gold Coast”) to remodel the pool and spa at the subject property. During the home sale, the Hillases allegedly represented that the remodeled swimming pool and spa had been properly completed, fully permitted, inspected, and warranted, and all other significant remodeling work on the property was permitted and code-compliant.

They further represented that the pool and spa were “new” as opposed to being a defective remodel covering prior failure. After closing, Plaintiffs discovered serious construction defects, including a cracked and failing pool shell, disturbed and improperly compacted soils, unapproved grading and retaining wall work, and an open and unfinalized pool permit. Further, in October 2022, Gold Coast and its managing agent/license qualifier Kenn Mracek (“Mracek”) failed to complete promised corrective work or honor express warranties despite notice and demands from Plaintiffs.

Discussion: Demurrers Generally A demurrer is a pleading used to test the legal sufficiency of other pleadings – i.e. it raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. CCP § 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 964. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true . . . however improbable they may be. See Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311. Consideration of extrinsic evidence by the court is error. Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881. A demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted, or for uncertainty under CCP § 430.10(f). Demurrers for uncertainty are disfavored and should only be sustained where the complaint is so bad that the demurring defendant cannot reasonably respond thereto.

Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty is insufficient unless it specifies how the targeted pleading is uncertain. Coons v. Thompson (1946) 75 Cal.App.2d 687, 690. When the allegations of the complaint are sufficiently clear to apprise the defendant of the issues to be met, a demurrer to the complaint on the ground of uncertainty should be overruled. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal. App. 3d 135, 139 n.2. Leave to amend must be allowed where there is a reasonable possibility of successful amendment.

Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. The burden is on the complainant to show the Court that a pleading can be amended successfully. Id.

1. Demurrer for uncertainty is OVERRULED

At the outset, please note that the only cause of action currently alleged against moving-party Defendant is a negligence cause of action. Here, the Court finds that the FAC allegations are not so uncertain that Defendant cannot reasonably respond or understand the nature of the negligence claim being raised. Accordingly, the demurrer for uncertainty should be overruled.

2. Demurrer on grounds of standing is SUSTATINED While Defendant has a good argument that the FAC does not contain sufficient factual allegations regarding Ker-Mar’s specific role, based on its generic group allegations (see FAC ¶10 referring to a group of “Negligence – Construction Defect Defendants”), the better basis on which to decide this matter is the issue of standing. Defendant’s request for more details about Ker-Mar's role in the alleged negligence is justified. And in order to establish standing, Plaintiffs will have to allege more details, which will necessarily cure the defects identified in the demurrer on grounds of lack of specificity as well.

In short, Defendant contends that Plaintiffs lack standing to bring their present claims because those causes of action belong to the prior owner of Plaintiffs Property, the Hillas Defendants. As stated in Keru Investments, Inc. v. Cube Co. (1998) 63 Cal.App.4th 1412, 1424: “Standing is the threshold element required to state a cause of action.” Ker-Mar’s contention has merit and the Court would therefore SUSTAIN the Demurrer, with leave to amend (as a matter of course as this is the first time the pleading has been subject to any attack, and there is some reasonable likelihood that Plaintiff might be able to cure the defect).

A negligent construction cause of action belongs to whoever owned the property when the injury occurred, i.e., when the action accrued, when there was actual, appreciable harm – not just when it was discovered. See AMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1533, 1534. Courts have described the required injury to the property as “immediate” and “permanent.” Id. A subsequent purchaser has a valid claim with a contractor if the damages first manifests during its

own ownership of the property, or if the subsequent owner is suing on a distinct harm that did not accrue to the prior owner. Alternatively, a valid negligence claim may be based on an assignment from the prior owner to the subsequent owner; however, a claim does not automatically pass to the subsequent owners. So, while the time that a cause of action accrues is typically a question of fact, here the allegations in the FAC clearly assert that the negligence cause of action accrued when the prior owners owned the property.

There is no doubt, and it is not being contested by Defendant, that a tort duty runs from a contractor to not only the original owner for whom real property improvement services are provided, but also to subsequent owners of the same property under the Biakanja v. Irving (1958) 49 Cal.2d 647 factors. Instead, the issue is standing and the accrual of the action. In Siegel v. Anderson Homes, Inc. (2004) 118 Cal.App.4th 994 at 996, the court held that, with respect to claims for construction defects against a builder, the cause of action based on such defects belongs to the first owner of the property who discovered or should have discovered the damage.

Stating: “The owner of a home containing latent construction defects may maintain an action in tort against the builder for any resulting damages. But when there are several successive owners, to which of them does the cause of action belong: to the person who owns the home when the structure first sustains some appreciable but undetected harm, or to the subsequent owner who first discovers the harm? Put another way, does the cause of action accrue when the structure suffers physical damage, or when the owner suffers a compensable economic injury as a result?

Has the owner suffered an injury, for example, if he or she is unaware the wooden framing within the walls is slowly deteriorating from water damage? “This is a construction defects action brought by James A. Siegel and Louis Sanchez, the subsequent owners of homes built by Anderson Homes, Inc. (Anderson), alleging the homes contained numerous preexisting defects, and structural damage, which they discovered only after having purchased the homes. Anderson moved in limine to exclude evidence of the defects and the damage on the ground they had given rise to causes of action in the original owners such that, absent an assignment of rights by the original owners to them, Siegel and Sanchez each lacked “standing” to bring the action.

The trial court, in reliance on Krusi v. S.J. Amoroso Construction Co. (2000) 81 Cal.App.4th 995 [97 Cal. Rptr. 2d 294] (Krusi), granted the motion and dismissed the complaint. “We will conclude that, absent proof the original owners suffered actual economic injuries as a result of the construction defects (a factual issue properly left for trial), they possessed no causes of action against Anderson that precluded Siegel and Sanchez from maintaining their present claims. Accordingly, we will reverse the trial court's dismissal of the claims.” Here, unlike in Siegel, the operative FAC specifically alleges the following (emphasis added), which affirmatively discredit Plaintiffs’ standing against Ker-Mar because Plaintiffs acknowledge that the prior owners suffered actual economic injuries as a result of the allegedly negligent actions of Ker-Mar:

¶45: “At the Subject Property, and prior to sale of same, pre-existing substantial cracks in the perimeter structural foundation elements, slabs, interior drywall and exterior stucco walls were impossible for the Seller Defendants, Negligence – Construction Defect Defendants and Fraud Defendants to ignore, and Plaintiffs are informed and believe and therefore allege that these Defendants each did independently and collectively, as well as systematically and willfully conceal the existence of these conditions from Plaintiffs by actively covering up or disguising the existence of the ongoing defects by making wholly ineffective “repairs” of cracking utilizing carpet, wallpaper, and drywall on the interior, as well as stucco patching, the placement of decomposed granite, artificial turf, along with new tile, plaster and coping to conceal exterior and preexisting soils issues and swimming pool and spa shell failure and other defective conditions.” ¶29. “HILLAS, MRACEK and GOLD COAST further misrepresented to Plaintiffs or otherwise misled and concealed material information from Plaintiffs that the work by GOLD COAST was previously completed, fully permitted, finally inspected and approved by the County of Ventura, and this misrepresentation or misleading statement and concealment was materially and substantially false, and Plaintiffs after the sales transaction have since learned that no grading/excavating information and approval had ever been provided to the County of Ventura inspector, and the work remains incomplete therefore, permits remain open and not approved to the present date.” At ¶¶40-44 in the FAC, Plaintiffs allege that the seller Hillas Defendants were aware that the “new” pool constructed at the property was actually a remodel, “covering up and not correctly fixing substantial failures in the pool shell” and that its representations denying non-compliance with building codes, fill (compacted or otherwise) on the property, any settling from any cause, or slippage, sliding, or other soil problems, flooding, drainage or grading problems, and any notices of abatement or citations against the property, were all false.

In Krusi v. S.J. Amoroso Construction Co. (2000) 81 Cal.App.4th 995, the Court discussed the Keru case, finding: “But, the Keru court continued, there was a more fundamental reason why the results of Huang and Sumitomo Bank were inapplicable to the facts before it. That was because a prior owner, the Moross Group, owned the property both when the defective work was done and when the damage was sustained. The court stated: ”not only was the defective construction work *1003 done on behalf of a previous owner, the building itself sustained the damage for which respondents seek recovery prior to the transfer of ownership to Keru Investments.“ (Keru, supra, 63 Cal.App.4th at p. 1423.) (Krusi v.

S.J. Amoroso Construction Co. (2000) 81 Cal.App.4th 995, 1001–1003, as modified (June 29, 2000), as modified (July 18, 2000)) That is precisely what the FAC alleges happened in this case. The alleged negligently performed work was done by moving-party Ker-Mar for the prior owners when the Hillases owned the property, and it is alleged that the damage for which Plaintiffs seek recovery was sustained (“impossible for the Seller Defendants ... to ignore”) prior to the sale of the property to the Plaintiffs.

And from Keru directly, at pp. 1423-1425: “It is evident that the cause of action for negligent construction against appellant was held by the Moross Group and not the party to whom it transferred the property after the cause of action accrued.... [¶] ... The injury was sustained by the Moross Group[,] which owned the property when the earthquake devastated the building. Respondents cannot claim to own the cause of action simply because they discovered the reason for the damage after the building was transferred.

Under respondents' reasoning, every party who purchased a hulk of a building would automatically have a right to bring a lawsuit if they could find some previously unknown factor which contributed to the building's destruction. That is simply not the law. Choses in action belong to the party who suffered the injury. In this case the injury was suffered by Keru Investments' predecessor, the Moross Group. In the absence of assignment, Keru Investments does not have standing to pursue it.” Here, Plaintiffs have not shown that they suffered some distinct injury apart from the damages allegedly known to the Defendant Sellers at the time of the sale in October 2022, as opposed to simply discovering “some previously unknown factor” contributing to the damage.

It is not alleged that the damage suffered by Plaintiffs is fundamentally different from the type allegedly suffered by the Hillases. The example provided in Krusi was: “Thus, if owner number one has an obviously leaky roof and suffers damage to its building on account thereof, a cause of action accrues to it against the defendant or defendants whose deficient design or construction work caused the defect. But, if that condition goes essentially unremedied over a period of years, owners two and three of the same building have no such right of action against those defendants, unless such was explicitly (and properly) transferred to them by owner number one.

But owners two and three could well have a cause of action against those same defendants for, e.g., damage caused by an earthquake if it could be shown that inadequate seismic safeguards were designed and constructed into the building. Such is, patently, a new and different cause of action.” It is clearly alleged that damage to the building was discovered, known and actively concealed during the prior ownership of the property. See FAC, ¶45. The injuries alleged in the FAC all occurred when the Hillases owned the property.

Therefore, as the person who sustained the damage, the cause of action was vested in Hillases and they are therefore the real party in interest entitled to maintain any negligence action against the moving-party Defendant. The subsequent sale of the real property did not automatically assign or transfer the cause of action. And so, without some clear manifestation of an intention to transfer, the cause of action was not transferred to the subsequent owners, Plaintiffs. See Vaughn, supra, 223 Cal.App.3d at p. 149.

In conclusion, based on the allegations contained in the FAC, any negligence cause of action accrued to the then-owners, the Hillases, because Plaintiffs expressly alleges that appreciable damage to the pool, soil, etc. was known to the Hillases during their ownership. They sold the property to Plaintiff on or about October 20, 2022. FAC ¶33. There are no allegations that some separately cognizable form of damages accrued to Plaintiffs, unique to them. Instead, all of the claimed damages appear to be encompassed by the construction defect type damages allegedly known by the seller Defendant Hillases, and “impossible ... to ignore.” Accordingly, unless there was an assignment or transfer of that right, Plaintiffs lack standing.

There is no claim of an assignment of rights between the Hillases and Plaintiffs regarding the negligence cause of action.

Because Ker-Mar is correct that under the allegations of the FAC, whatever cause of action arose from the alleged conditions accrued to the then-owners, and there is no allegation that this negligence claim was ever transferred to Plaintiffs, the Demurrer should be SUSTAINED. Leave to amend should be granted as a matter of course, and the Court gives the Plaintiffs one opportunity to ameliorate the defect.