Kravchuk v. Beck
| Docket Number | H049559 |
| Decision Date | 21 June 2022 |
| Parties | MARIIA KRAVCHUK, Plaintiff and Appellant, v. TAYLOR BECK, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 18CV322457
This action arose out of a failed San Jose residential sales transaction involving appellant Mariia Kravchuk, as buyer and Taylor Morrison of California, LLC (Taylor), as developer/seller. Respondent Taylor Beck (Beck) was an employee of Taylor. The suit was initially filed in January 2018 in which one cause of action for breach of contract was alleged against Taylor, only. In July 2020, Kravchuk filed a second amended complaint alleging seven causes of action naming Taylor and eight additional defendants, including Beck. In November 2020, Kravchuk filed a third amended complaint alleging the same seven causes of action and naming all nine defendants. Beck filed a demurrer to the third amended complaint as to each of the five claims asserted against him, which was opposed by Kravchuk. The court sustained Beck's demurrer without leave to amend as to each of the five causes of action, and a judgment of dismissal in Beck's favor was thereafter entered.
On appeal, Kravchuk contends that the trial court erred by denying her leave to amend to afford her the opportunity to state viable causes of action against Beck. She contends further that the court committed procedural error by entering the judgment of dismissal, and that there was no good cause for granting Beck's request for entry of such judgment through an ex parte application. We conclude that because there was no reasonable possibility Kravchuk could amend her pleading to state viable causes of action against Beck, the court did not abuse its discretion in denying leave to amend the third amended complaint. We conclude further that the trial court did not commit procedural error in entering the judgment of dismissal and did not abuse its discretion in granting Beck's ex parte application. We will affirm the judgment.
On January 24, 2018, Kravchuk, then represented by counsel, filed a Judicial Council form complaint against Taylor alleging a claim for breach of written contract. She alleged that on or about March 9, 2017, she and Taylor entered into a written contract (the Agreement) involving the purchase and sale of 73 Montecito Vista Drive, Unit #1 in San Jose (the Property), which contract was attached to the complaint. Kravchuk alleged that on or after October 31, 2017, Taylor breached the contract by failing to sell the Property to her.
On July 27, 2020, Kravchuk, as a self-represented litigant, filed her second amended complaint, alleging seven causes of action and naming nine defendants: Taylor; Joyce Lee; Attorney James M. Ganion; law firm Collinsworth, Specht, Calkins & Giampaoli, LLP (CSCG); law firm Ulich Balmuth Fisher LLP (UBF); First American Financial Corporation (First American); Olivia Trelles; Tina Longo; and Beck. Taylor filed a demurrer to the second amended complaint. By order of November 12, 2020, the court sustained with leave to amend the demurrer to two causes of action, and overruled the demurrer as to one cause of action.[1]
On November 30, 2020, Kravchuk, as a self-represented litigant, filed her third amended complaint (hereafter, the Complaint) against the same nine defendants sued in the second amended complaint. The Complaint alleged seven causes of action and contained over 200 pages of exhibits. The causes of action alleged were (1) breach of contract (against Taylor); (2) breach of implied covenant of good faith and fair dealing (against Taylor); (3) deceit (against all defendants); (4) civil conspiracy (against all defendants); (5) aiding and abetting deceit (against all defendants); (6) intentional interference with economic advantage (against all defendants except Taylor); and (7) negligent interference with economic advantage (against all defendants except Taylor).
In her Complaint, Kravchuk alleged, among other things, the following facts, which are admitted for purposes of demurrer to be true (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214 (Committee on Children's Television), superseded by statute as stated in Californians For Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 227):
Beck is a real estate Community Sales Manager of Taylor, and he is a licensed real estate salesperson. On March 9, 2017, Kravchuk and Taylor entered into a contract (i.e., the Agreement) to purchase the Property for $669,745. Under the terms of the Agreement, the date of closing was when the certificate of occupancy (hereafter, COO) issued for the Property.[2] After repeated attempts by Taylor to obtain a COO were rejected by the City of San Jose (City), a COO was issued on January 31, 2018. Taylor claimed on multiple occasions in November 2017 that the City had issued a COO, and Taylor stated that it would begin charging a daily extension fee of $1,000 if Kravchuk failed to conclude the transaction. Kravchuk alleged that Taylor wrongfully terminated the contract on November 28, 2017, stating that the termination was the result of Kravchuk's failure to close escrow by November 22. Also on November 28, Lee and Taylor notified Kravchuk that she had not complied with the request to close escrow, and they falsely claimed that the City had issued the COO for the Property. On that same date, Beck and Taylor sent an e-mail to Kravchuk "with a purported 'notice of cancellation due to buyer default.'" Kravchuk was ready and willing to close escrow, but Taylor sold the Property to a third party on January 25, 2018, for $832,842, or $163,097 more than the price in the Agreement.
Beck filed a demurrer to the (Third Amended) Complaint. He asserted that the third through seventh causes of action of the Complaint each failed to state facts sufficient to constitute a cause of action (Code Civ. Proc., § 430.10, subd. (e).)[3] As to the third cause of action for deceit, Beck argued in his demurrer, inter alia, that Kravchuk had failed to plead fraud with the requisite specificity, and she had not alleged that Beck made any specific statements to Kravchuk before the latter signed the Agreement.
Kravchuk filed opposition to the demurrer.
The matter was called for hearing on August 26, 2021. The record reflects that there were no appearances and that no party contested the court's tentative ruling. The court adopted the tentative ruling at that time.
The formal order sustaining Beck's demurrer to the Complaint was filed on August 26, 2021. The court sustained without leave to amend the demurrer as to each of the five causes of action alleged against Beck. As summarized below, the court ruled as follows:
Third Cause of Action (Deceit): Kravchuk, to successfully plead fraud/deceit, was required to allege five elements: (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) (Id. at p. 645.) The court held that Kravchuk had failed to plead fraud with the required specificity. The only nonconclusory allegation in the Complaint of a misrepresentation by Beck was the claim that on November 28, 2017, he and Taylor" 'sent an e-mail to [Kravchuk] with a purported "notice of cancellation due to buyer default." '" The e-mail, attached as an exhibit to the Complaint, simply stated that it was attaching a cancellation letter signed by defendant Lee, which Kravchuk would also receive by Federal Express and by certified mail. Lee's notice of cancellation letter made no mention of the issuance of a COO or state that the Property was habitable. Rather, the cancellation letter from Lee indicated that Kravchuk was in default under the Agreement. There were several other letters and e-mails by Beck to Kravchuk that were attached as exhibits to the Complaint; the court concluded that none of them showed "any misrepresentations to Plaintiff by Beck concerning the issuance of a certificate of occupancy or his concealment of any material facts pertaining to the Property or its habitability, much less any such representations/concealment having taken place before Plaintiff signed the purchase agreement such that Beck's actions induced her to do so." Kravchuk also alleged that Beck intentionally concealed from her that Taylor had sold the Property to a third party, but she included "no specific, factual allegations as to how Beck concealed such information."
The court held further that Kravchuk had not alleged justifiable reliance. Kravchuk alleged
Lastly the court held that Kravchuk had failed to allege damage: ...
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