GRIFFIN BURKE ET AL VS. DEB HOWARD & CO INC.

September 4, 2026 Dept. 9 Civil Tentative Rulings

18. 26CV1525 GRIFFIN BURKE ET AL VS. DEB HOWARD & CO INC. DEMURRER

Defendants, Deb Howard & Co, Inc., Debra K. Howard, and Walter K. Johnson (collectively “Defendants”), demurrer to Plaintiffs, Griffin Burke and Gregory Burke (collectively “Plaintiffs”), First Amended Complaint (“FAC”). On August 3, 2026, Plaintiffs filed an opposition. Defendants filed a Reply on August 28, 2026. Request for Judicial Notice Defendants seek judicial notice of the “Grant Deed” recorded on January 23, 2023, from the Sellers, Defendants Danelle E. Snyder, Douglas Snyder and Kevin Hopkins to “Griffin Burke as Trustee of the Ciaphas Management Trust”.

Plaintiffs also seek judicial notice of the following: 1) the Disclosure Regarding Real Estate Agency Relationship, executed on October 26, 2022; 2) the Residential Purchase Agreement and Joint Escrow Instructions, executed on October 26, 2022; 3) the Preliminary Title Report dated October 25, 2022; 4) The Grant Deed, recorded on September 6, 2023, in the Official Records of El Dorado County as Document No. 2023-0025035, transferring title from Griffin Burke, as Trustee of the Ciaphas Management Trust, to Griffin Burke, a single man.

Judicial notice is a mechanism which allows the Court to take into consideration matters which are presumed to be indisputably true. California Evidence Code Sections 451, 452, and 453 govern the circumstances in which judicial notice of a matter may be taken. While Section 451 provides a comprehensive list of matters that must be judicially noticed, Section 452 sets forth matters which may be judicially noticed, including, but not limited to, “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

Section 452 provides that the court “may” take judicial notice of the matters listed therein, while Section 453 provides a caveat that the court “shall” take judicial notice of any matter “specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request...to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” Cal. Evid. Code § 453. While the request made by Defendants and Plaintiff’s fourth request falls within the purview of Section 452, matters which may be judicially noticed, the Court does find that Defendants and Plaintiff provided one another and the Court sufficient notice of the request and copies of the documents requested to be noticed.

As such, Defendants and Plaintiffs have satisfied the requirements of Evidence Code § 453 and the request for judicial notice is granted

September 4, 2026 Dept. 9 Civil Tentative Rulings

as to Defendants’ request and Plaintiff’s fourth request. The Court does not find that Plaintiffs’ first through third requests are proper subjects of judicial notice and denies these requests. Meet and Confer Requirement Code of Civil Procedure §430.41(a) provides: Before filing a demurrer pursuant to this chapter, the demurring party shall 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.

Code of Civil Procedure §430.41(a)(3): The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.

Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal. App. 5th 348 (“If, upon review of a declaration under section 430.41, subdivision (a)(3), a court learns no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort”).

Based on the Declaration of Debra L. Samuels, counsel attempted to meet and confer with Plaintiffs prior to filing, but the dispute could not be resolved.

Background

On June 30, 2026, Plaintiffs filed a First Amended Complaint for the following causes of action: 1) Fraud – Intentional Misrepresentation; 2) Fraud by Concealment; 3) Breach of Fiduciary Duty; 4) Negligent Misrepresentation; 5) Negligence (Agent Defendants); 6) Negligence (Seller Defendants); 7) Violation of Civil Code §§ 1102 et seq (Seller Defendants). Legal Principles [A] demurrer challenges only the legal sufficiency of the complaint, not the truth or the accuracy of its factual allegations or the plaintiff’s ability to prove those allegations.” (Amarel v. Connell (1998) 202 Cal.App.3d 137, 140.) A demurrer is directed at the face of the complaint and to matters subject to judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) All properly pleaded

September 4, 2026 Dept. 9 Civil Tentative Rulings

allegations of fact in the complaint are accepted as true, however improbable they may be, but not the contentions, deductions or conclusions of facts or law. (Blank v. Kirwan (1985) 39 Cal.3d gives “the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank, supra, 39 Cal.3d at p. 318.)

Discussion

Defendants demurrer to the FAC pursuant to Code of Civil Procedure §§ 430.10(e) on the grounds that Plaintiffs have no standing to sue the moving defendants. Standing – Gregory Burke (“Plaintiff Gregory”) Defendants argue that Plaintiff Gregory does not have standing as he is not a purchaser of the property. Additionally, he did not have a direct agency relationship with Defendants because they were acting as agent for the seller and purchaser. Plaintiff Gregory’s assertion of expending funds or being a beneficiary does not confer him any standing against Defendants as a matter of law.

Any funds fronted by Plaintiff Gregory were on behalf of the Trust and only the Trust has standing to sue. Plaintiffs argue that the FAC alleges he personally asked Defendant Johnson if any easements affected the property, that Defendant Johnson falsely represented there were no easements, Plaintiff Gregory reasonably relied on Defendant Johnson’s representation and personally contributed funds toward the project in reliance on the representation before discovering it was false, and suffered independent pecuniary losses as a direct result of Defendant Johnson’s conduct.

1. Fraud – Intentional Misrepresentation, Fraud by Concealment, Negligent Misrepresentation, and Negligence Civil Code § 2079.24 provides that nothing in the article shall be construed to either diminish the duty of disclosure owed buyers and sellers by agents, or to relieve agents from liability for their conduct or for any breach of a fiduciary duty or a duty of disclosure. If a broker fails to disclose material facts that are known to him he is liable for the intentional tort of “fraudulent concealment” or “negative fraud.”

Easton v. Strassburger (1984) 152 Cal.App.3d 90, 99. In Williams v. Wells & Bennett Realtors (1997) 52 Cal.App.4th 857, 863, the court found that “a real estate agent's liability for fraud existed prior to the Easton case, and that the new duty imposed by Easton did not change the preexisting law of fraud.” Under the law of agency, real estate agents owe a duty of care to all persons, including third persons, within the area of foreseeable risk. (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 42–43, 269 Cal.Rptr. 228.) “One who assumes to act as an agent is responsible to third persons as a principal for his acts in the course of his agency ... [¶] ... [¶] ... [w]hen his acts are wrongful in their nature.” (Civ.Code, § 2343.)

The extent of a real

September 4, 2026 Dept. 9 Civil Tentative Rulings

estate agent's duty to a third person is “determined by an examination of whether a reasonable person would have foreseen an unreasonable risk of harm to the third person and whether in view of such risk the [agent] exercised ordinary care under the circumstances.” (Miller, Cal. Real Estate, supra, at § 3:45, p. 268.) Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1140 [155 Cal.Rptr.3d 739, 743]. Negligent misrepresentation is a form of “actual fraud,” consisting of “[t]he positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true.” (Civ.Code, § 1572, subd. 2.)A real estate broker or salesperson has a statutory duty toward a prospective purchaser of residential real property “to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to that prospective purchaser all facts materially affecting the value or desirability of the property that an investigation would reveal....” (Civ.Code, § 2079, subd. (a).)

A real estate agent also has a statutory liability for negligence: “[i]f an agent ... places a listing or other information in the multiple listing service, that agent ... shall be responsible for the truth of all representations ... of which that agent ... had knowledge or reasonably should have had knowledge to anyone injured by their falseness or inaccuracy.” (Civ.Code, § 1088.) Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1077 [76 Cal.Rptr.2d 911, 915–916]. The Court is unpersuaded by Defendants’ argument that Plaintiffs are unable to plead around the statutory limits of Civil Code § 2709 by presenting common law theories.

Defendants’ reliance on Coldwell Banker Residential Brokerage Co. v. Superior Court (2004) 117 Cal.App.4th 158 is flawed. The Court in Coldwell Banker held that plaintiff did not have standing pursuant to Civil Code § 2079 and found that: [E]ven if we were to disregard section 2079, the result would not change. Marcos emphasizes the affirmative nature of Coldwell Banker's conduct, but fails to acknowledge that his cause of action is necessarily premised on fraud. Although active concealment of a property defect is “more obnoxious than failure to disclose,” the legal effect of active concealment is the same as an affirmative misrepresentation. (5 Witkin, Summary of Cal.

Law, supra, Torts, § 702, pp. 804–805; Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 37, 124 Cal.Rptr. 852.) Both sound in fraud and misrepresentation and require a showing of reliance. Because Marcos cannot successfully plead that Coldwell Banker intended to induce him to act to his detriment in reliance on the false representation (i.e., concealment) or that he relied on such conduct, he cannot state a cause of action for fraud or misrepresentation. (Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 156–157, 53 Cal.Rptr.2d 336.)

Coldwell Banker Residential Brokerage Co. v. Superior Court (2004) 117 Cal.App.4th 158, 168 [11 Cal.Rptr.3d 564, 572] (emphasis added).

September 4, 2026 Dept. 9 Civil Tentative Rulings

The Court did not hold that Civil Code § 2709 precludes common law liability theories, it simply found that it was inapplicable in this case as plaintiff could not establish inducement or reliance. In the case at issue, the FAC as a whole pleads that before Plaintiffs executed the Purchase Agreement, Defendant Johnson directed his false representations specifically to Plaintiff Gregory, knew Plaintiff Gregory would rely upon it, Plaintiff Gregory did rely upon it, and suffered independent pecuniary losses as a direct result. Taking the facts as plead as true, the Court accordingly finds that Plaintiff Gregory has standing. Defendants’ demurrer as to the First, Second, Fourth, and Fifth Causes of Action is overruled.

2. Breach of Fiduciary Duty The Third Cause of Action provides that after Plaintiff Griffin executed the Purchase Agreement, Defendant Johnson undertook to act as his buyer’s agent. By virtue of that relationship, Defendant Johnson owed Plaintiff Griffin fiduciary duties. The cause of action is silent as to what, if any, duty was owed to Plaintiff Gregory. Defendants’ demurrer as to the Third Cause of Action is sustained with leave to amend. Standing – Griffin Burke (“Plaintiff Griffin”) Defendants argue that the FAC only brings forth causes of action for Plaintiff Griffin as an individual; however, the Grant Deed indicates the purchaser of the property was “Griffin Burke as Trustee of the Ciaphas Management Trust.”

As such, he does not have standing to sue. Plaintiffs argue that the FAC alleges that Plaintiff Griffin was the purchaser identified in the Purchase Agreement, executed the Agency Disclosure establishing Johnson as his buyer's agent, wired the earnest money deposit, and remains the Property's owner. The FAC paragraph 17 expressly alleges that Plaintiff Griffin “was the purchaser identified in the Vacant Land Purchase Agreement and acquired title to the Property." In addition, the Grant Deed establishes that title was reconveyed from the Ciaphas Management Trust to Griffin Burke, individually, on September 6, 2023, more than one year before this action was commenced.

Taking the facts plead in the FAC as true, the Court finds Plaintiff Griffin has standing. Defendants’ demurrer as to all causes of action for Plaintiff Griffin is overruled. TENTATIVE RULING #18: DEFENDANTS’ DEMURRER IS OVERRULED AS TO THE FIRST, SECOND, FOURTH, AND FIFTH CAUSES OF ACTION FOR PLAINTIFF GREGORY. DEFENDANTS’ DEMURRER AS TO THE THIRD CAUSE OF ACTION FOR PLAINTIFF GREGORY IS SUSTAINED WITH LEAVE TO AMEND. DEFENDANTS’ DEMURRER AS TO ALL CAUSES OF ACTION FOR PLAINTIFF GRIFFIN IS OVERRULED.

NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL.

September 4, 2026 Dept. 9 Civil Tentative Rulings

RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999). NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY TELEPHONE OR IN PERSON BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; EL DORADO COUNTY LOCAL RULE 8.05.07. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING. LONG CAUSE HEARINGS MUST BE REQUESTED BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED AND THE PARTIES ARE TO PROVIDE THE COURT WITH THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M.

LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING ON ONE OF THE THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. THE COURT WILL ADVISE THE PARTIES OF THE LONG CAUSE HEARING DATE AND TIME BY 5:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. PARTIES MAY PERSONALLY APPEAR AT THE HEARING.

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