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Standard of Review-Demurrer
(Coldwell Banker v. Super. Ct.)

Standard of Review-Demurrer
(Coldwell Banker v. Super. Ct.)

Coldwell Banker demurred, arguing only the parties to a real estate transaction can maintain an action against the seller's real estate broker for failing to disclose defective conditions in a home.  In his opposition, Marcos argued Coldwell Banker owed him a duty of care because it knew he was the buyer's child and would be living in the home.  Thus, Coldwell Banker could reasonably foresee the risk of physical injury to him.

            The court overruled the demurrer to the second, seventh and eighth causes of action, finding Marcos sufficiently stated a cause of action for negligence, nuisance and intentional infliction of emotional distress.  The court sustained without leave to amend the ninth cause of action for fraud and misrepresentation, finding Marcos could not show he relied on Coldwell Banker's representations.  This petition followed.  We issued an order to show cause and calendared argument.

DISCUSSION

A

Standard of Review

            On review of a ruling on demurrer, we exercise our independent judgment on whether, as a matter of law, the complaint states a cause of action.  (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501; Trinkle v. California State Lottery (1999) 71 Cal.App.4th 1198, 1201.)  We accept as true the properly pleaded material facts but do not assume the truth of contentions, deductions or conclusions of fact or law.  (Interinsurance Exchange v. Narula (1995) 33 Cal.App.4th 1140, 1143; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.)  We examine the complaint's factual allegations to determine whether they state a cause of action on any available legal theory.  (Wolfe v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554, 560.)  Coldwell Banker v. Super. Ct. March 29, 2004-CA4/1- D042574

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