Fisher v. MacInness

ASHBURN, J. This is an appeal by the plaintiffs from a judgment of dismissal in favor of defendant after demurrer to the fourth amended complaint was sustained without leave to amend.

The pleading alleges that on and prior to November 23, 1954, plaintiffs were the owners of certain described real property in Los Angeles County; that on said date they sold the property to Jared R. and Mary K. Haines, which sale was completed and the deed recorded on December 24, 1954. That the said buyers “required a structural pest inspection report to be made and a certificate issued certifying as to the condition of dry rot and termites.” That on November 23, 1954, plaintiffs employed defendant to inspect said property and to issue a certificate as to the condition of dry rot and termites in the building. That “the defendant reported to the plaintiffs that there was evidence of dry rot and termites, and that it was necessary to do certain work to eliminate [579]the dry rot and termite condition in said buildings, and the plaintiffs employed the defendant to perform the work to eliminate the dry rot and termites in said buildings.” It is then alleged that defendant1' did perform work on said buildings and issued a written certificate as a licensed termite and dry rot contractor certifying that the defendant as such contractor had eliminated all dry rot and termites in said buildings on said real property”; that the plaintiffs “relied upon said written certificate as issued by defendant.” Plaintiffs then allege that “the defendant did said dry rot and termite work for the plaintiffs in such a negligent and reckless manner, and as a proximate result thereof that the certificate issued by the defendant was false and fraudulent. That the defendant in fact did not eliminate the dry rot and termite condition in said buildings.” Further, “That the plaintiffs did not discover the negligent and false and fraudulent certificate that the defendant issued until the 29th day of March, 1956.” It is alleged that “as a result of the defendant’s negligence in performing said termite and dry rot work and issuing said certificate the plaintiffs were damaged in the sum of $3450.00.” They pray for judgment in this amount “and such other relief as to which they may be entitled.” The original complaint was filed on July 2, 1958.

Defendant demurred generally and specially to the original and all successive amended complaints. The demurrer to the fourth amended complaint is upon the ground that the facts alleged are insufficient to constitute a cause of action; that it appears from the facts alleged that the complaint is barred by the statutes of limitations, citing Code of Civil Procedure, § 338, subdivision 4 (three years on action for fraud) ; § 339, subdivision 1, (two years, action upon contract, obligation or liability not founded upon an instrument in writing) ; § 337, subdivision 1 (four years in action founded upon a written contract). It is specially urged that the complaint is uncertain in that “it cannot be ascertained . . . whether or not said employment of the said defendant by the plaintiffs . . . was by written contract or by oral contract.”