ALISSA MADDEN v. DARREN LITTLE, ET AL

The demurrer of defendants Darren Little (“Little”) and Booth & Little (“B&L”) is sustained with leave to amend as to the fourth cause of action only. The demurrer is overruled as to the remaining counts. The motion to strike is moot.

Background

Plaintiffs Alissa Madden (“Madden”) and Alissa Madden, Inc. (“Madden, Inc.”) claim injuries and damages resulting from improper roofing installation by Little and B&L and improper mold remediation by defendant West Coast Water & Fire Restoration, Inc. (“West Coast”).

Plaintiffs commenced this action on December 27, 2024. The complaint includes the following causes of action: (1) negligence (Little and B&L); (2) negligence (West Coast); (3) negligent infliction of emotional distress (all defendants); and (4) fraudulent misrepresentation (all defendants).

At present, Little and B&L (collectively “Defendants”) demur to the causes of action directed against them and move to strike Plaintiffs’ claim for punitive damages.

According to the complaint, Madden leased a home in Kentfield from Stacy Stevenson beginning on September 15, 2020, and ending on July 20, 2023. Madden operated her interior design business Madden, Inc. within the premises. (¶1.) Prior to Madden leasing the premises, Stevenson hired Little and B&L to install a new roof on the home. The work was performed in April of 2019. (¶2.) Little and B&L purchased and installed the wrong type and/or wrong size of shingles for the pitch of the roof, which created a condition in which the roof was unable to properly repel water during rain events. (¶8.) When the rainy season began, substantial amounts of water entered the home, damaging Madden’s personal possessions and exposing her to

conditions hazardous to her health. (¶9.) Madden complained to Stevenson, who notified Little that he and B&L needed to replace the roof. (¶10.) Initially, Little and B&L attempted to avoid replacing the roof by sending employees to patch numerous locations and raising spurious objections. They ultimately agreed to file an insurance claim, replace the roof, and assume the costs of mold remediation but only following Madden’s acute reaction and suspicious of mold in late March 2023. (¶11.) Little and B&L hired West Coast to perform the mold remediation services in May 2023. (¶3.) Subsequent testing of the home and Madden’s personal belongings showed the remediation to be inadequate and deficient. (¶17.)

Legal Standard

“’... A general demurrer will lie where the complaint “has included allegations that clearly disclose some defense or bar to recovery.”’ A demurrer can be used only to challenge defects that appear on the face of the complaint or from matters outside the pleading that are judicially noticeable. ‘To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action.’ The demurrer admits the truth of all material facts properly pleaded, including all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law.” (Simple Avo Paradise Ranch, LLC v. Southern California Edison Co. (2024) 102 Cal.App.5th 281, 288- 289, citations omitted.)

Demurrer

First Cause of Action – Negligence

Defendants argue that the cause of action is barred by the statute of limitations.

The statute of limitations for negligence is two years. (Code Civ. Proc., § 335.1.) Defendants point to Plaintiffs’ allegation that the condition became apparent in early 2021. This is when “substantial amounts of water entered the home through the improperly installed roof, damaging Plaintiff’s personal possessions and exposing Plaintiff to conditions hazardous to her health.” (¶9.)

As Defendants acknowledge in their reply, Plaintiffs allege that “water continued to leak into the home, further damaging Plaintiff’s personal property” because of Defendants’ “subsequent negligent and ineffective repair work.” (¶13.) Defendants argue that this claim are “likely...time-barred as well,” and they point out that Plaintiffs do not specify a time frame for the repairs. However, “[i]f the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment...’” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324- 325, citing United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 505.)

The Court cannot tell from the face of the complaint that Plaintiffs did not suffer some property damage resulting from the inadequate repairs within two years prior to their filing of the complaint on December 27, 2024.

Even if all of Plaintiffs’ personal property claims are barred, Madden has a separate cause of action for personal injuries. “Where a tortfeasor’s single act causes the plaintiff to suffer both personal injury and property damage, there are two causes of action. ...” (Allstate Ins. Co. v. Mel Rapton, Inc. (2000) 77 Cal.App.4th 901, 909; see also Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 551 [“two causes of action arise when a single tortious act causes the plaintiff to suffer both personal injury and property damage”].) Plaintiffs contend the delayed discovery rule applies and point to their allegations in paragraph 36. The Court of Appeal explained in Kernan v. Regents of University of California (2022) 83 Cal.App.5th 675, 681:

The discovery rule “sets forth two alternate tests for triggering the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test showing that a reasonable person would have suspected the injury was caused by wrongdoing. The first to occur under these two tests begins to run the limitations period.”

(Citation omitted.) “Application of the delayed discovery rule is typically a question of fact. ‘As our high court has observed, “there are no hard and fast rules for determining what facts or circumstances will compel inquiry by the injured party and render him chargeable with knowledge. It is a question for the trier of fact.” “However, whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law.”’” (Medina v. St. George Auto Sales, Inc. (2024) 103 Cal.App.5th 1194, 1204, citations and brackets omitted.) Defendants do not address the delayed discovery allegations/argument, arguing in reply only that the statute began to run as to all claims in early 2021.

Since Madden did not begin to have symptoms until March 2022, Defendants’ argument does not address this separate cause of action. Overruled.

Third Cause of Action – Negligent Infliction of Emotional Distress

Statute of Limitations: Defendants argue that the cause of action is barred by the statute of limitations, making the same argument as they did to the first cause of action. The argument fails for the same reasons as discussed above.

Failure to State a Cause of Action: As to Madden, Defendants argue that “[n]o facts are alleged to support plaintiffs’ legal assertion of a duty, a breach or causation under the facts alleged.” Defendants have not challenged the negligence cause of action which has the same elements. The allegations of that cause of action are incorporated into this cause of action.

As to Madden, Inc., the demurrer is moot since Plaintiffs filed a request for dismissal of this cause of action as to Madden, Inc.

Fourth Cause of Action – Fraudulent Misrepresentation

Statute of Limitations: Defendants argue that the cause of action is barred by the statute of limitations, making the same argument as they did to the first cause of action. The statute of limitations for fraud is three years, and “[t]he cause of action in that case is not deemed to have

accrued until the discovery, by the aggrieved party, of the facts constituting the fraud...” (§ 338, subd. (d).) This cause of action involves representations made in connection with the remediation, which occurred in 2023 and therefore is clearly not barred by the statute of limitations.

Failure to State a Cause of Action: “’”The elements of fraud...are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.”’...” (Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 32.) “... Fraud allegations ‘involve a serious attack on character’ and therefore are pleaded with specificity. General and conclusory allegations are insufficient. The particularity requirement demands that a plaintiff plead facts which ‘”’show how, when, where, to whom, and by what means the representations were tendered.’”’ ...” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469, citations omitted.)

The allegations show that the representations were made after the remediation was complete and that they were made orally to Stevenson. However, Plaintiffs have not alleged who made the representations. Even if Plaintiffs are correct that West Coast was Defendants’ agent and therefore Defendants are liable for West Coast’s deceit, they still must be specific as to who made the representations. In any event, Plaintiffs have not alleged that West Coast was Defendants’ agent. They allege only that Defendants “hired” West Coast. (¶3.)

As explained in Hearden v. Windsor Redding Care Center, LLC (2024) 103 Cal.App.5th 1010, 1020:

An agent is one who represents another, called the principal, in dealings with third persons.” In California, an agency is “either actual or ostensible.”’ Actual agency arises when the principal’s conduct causes the agent reasonably to believe that the principal consents to the agent’s act on behalf of the principal. Ostensible agency arises when the principal’s conduct causes the third party reasonably to believe the agent has the authority to act on the principal’s behalf.

An agency, whether actual or ostensible, cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agency.’ ‘”’”The principal must in some manner indicate that the agent is to act for the principal, and the agent must act or agree to act on the principal’s behalf and subject to the principal’s control.”...’ Thus, the ‘formation of an agency relationship is a bilateral matter. Words or conduct by both principal and agent are necessary to create the relationship...

(Citations omitted.) This case involves a roofing contractor and a mold remediation company. Plaintiffs point to no words or conduct by Defendants and West Coast which would have led Stevenson to believe West Coast was acting on behalf of Defendants. They also allege no fact to show that West Coast was subject to Defendants’ control. Rather, the allegations indicate that West Coast was an independent contractor. “’”An ‘independent contractor’ is generally defined as a person who is employed by another to perform work; who pursues an ‘independent employment or occupation’ in performing it; and who follows the employer’s ‘desires only as to the results of the work, and not as to the means whereby it is accomplished.’ The most significant factor in determining the existence of an employer-independent contractor relationship is the right to control the manner and means by which the work is to be performed.

‘If control may be exercised only as to the result of the work and not the means by which it is accomplished, an independent contractor relationship is established.’”’” (Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 983-984, citations omitted.)

“Case law has identified secondary indicia of the nature of the relationship. These are ‘(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.’” (Varisco v.

Gateway Science & Engineering, Inc. (2008) 166 Cal.App.4th 1099, 1103-1104, citation omitted.)

As already noted, Plaintiffs allege no facts to show that Defendants had the right to control the manner and means by which West Coast performed the mold remediation, and the secondary indicia suggest West Coast was an independent contractor. An employer is not vicariously liable for an independent contractor’s conduct. (Garcia v. W&W Community Development, Inc. (2010) 186 Cal.App.4th 1038, 1049.)

It would be difficult for Plaintiffs to plead facts sufficient to state a cause of action against Defendants based on vicarious liability. While “[g]enerally, an allegation of agency is an allegation of ultimate fact and is, of itself, sufficient to avoid a demurrer,” there is an exception “where the specific allegations of a complaint overcome the general allegation of agency by showing that no such relationship existed.” (Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 376.)

The court will give Plaintiffs an opportunity to plead around the specific allegations which indicate no agency relationship existed or to plead fraudulent misrepresentations on the part of Defendants. Sustained with leave to amend.

Motion to Strike

Defendants move to strike paragraph 35 of the misrepresentation cause of action and the associated prayer for punitive damages. Since the Court is sustaining the demurrer to that cause of action, the motion to strike is moot.

Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444- 7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of

the Court. In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court.

IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.

FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).