Smith v. Roach

CourtCalifornia Court of Appeals
Writing for the CourtDUNN; KINGSLEY, Acting P.J., and JEFFERSON
Citation126 Cal.Rptr. 29,53 Cal.App.3d 893
PartiesWales E. SMITH et al., Plaintiffs and Appellants, v. James L. ROACH et al., Defendants and Respondents. Civ. 46351.
Decision Date19 December 1975

Page 29

126 Cal.Rptr. 29
53 Cal.App.3d 893
Wales E. SMITH et al., Plaintiffs and Appellants,
James L. ROACH et al., Defendants and Respondents.
Civ. 46351.
Court of Appeal, Second District, Division 4, California.
Dec. 19, 1975.

[53 Cal.App.3d 894]

Page 30

Steven Edmondson, Santa Monica, for plaintiffs and appellants.

[53 Cal.App.3d 895] Salute & Allen and Lawrence Allen, Encino, for defendant and respondent Ardythe Raphael.

Krentzman & Kritzer and Paul L. Krentzman, Inglewood, for defendants and respondents James L. Roach and Margaret L. Roach.

Robins & Fields and Alan M. Fields, Sherman Oaks, for defendant and respondent Quality Properties.

DUNN, Associate Justice.

Plaintiffs appeal from a judgment of nonsuit in favor of all defendants entered in a jury trial after the trial court granted defendants' motion for nonsuit made at the conclusion of plaintiffs' opening statement (Code Civ.Proc. § 581c) at the trial of their action for damages for fraud. 1

Page 31

The action was commenced January 12, 1972, against James Roach, Margaret Roach, Ardythe Raphael and Quality Properties. The complaint, framed in one count, sought damages for defendants' alleged fraud in inducing plaintiffs to purchase an apartment house in Inglewood.

Plaintiffs' opening statement was, in essence, as follows: the apartment house had 11 units; early in January 1969 it was owned by defendants Roach, who had listed it for sale with defendant Quality Properties; defendant Raphael was a saleswoman employed by Quality Properties; plaintiff Wales Smith previously had business dealings with Raphael, and had indicated to her that he was interested in purchasing income-producing property; accordingly, late in December 1968, Raphael suggested to Smith that he consider purchasing the apartment building [53 Cal.App.3d 896] listed by the Roaches; after two weeks of negotiations, Smith offered to purchase the building for $140,000; the offer was accepted; in order to induce Smith and his wife to make the purchase, Raphael, acting as agent of both Quality Properties and the Roaches, made representations orally and in writing to the Smiths; the principal representation was that the apartment building would be worth $140,000 only if its present schedule of rents were raised; Raphael represented that the rents in the building were 'understated' by about $350 a month, and that she would raise the rents to no less than $1,920 per month; with these increased rents, and with the existing expenses, the building would be worth $140,000; plaintiffs then would have a net spendable income of $500 per month; the building also would show a 'principal build-up' or an 'equity build-up'; it then would be a good investment and would show a 30 percent return on a down payment of $15,000, as well as a 'net spendable'; this was the representation upon which plaintiffs chiefly relied in purchasing the building; plaintiffs made a down payment of $15,000 cash; the balance of $125,000 was represented by an 'all-inclusive' deed of trust (covering four notes and trust deeds), requiring payments of $1,006 per month; before the close of escrow Raphael represented to plaintiffs in writing, on behalf of Quality Properties and the Roaches, that she would manage the building free of charge for one year; such representation was made to 'bolster' the previous representation that Raphael would increase the rents; the escrow closed on January 22, 1969; two days later, Raphael sent the tenants notices of increased rent; by these notices the rent was increased a total of $350 per month on the 11 units; Raphael had not previously consulted any of the tenants to ascertain whether they would pay such increases and 'in making these representations she made them without a sufficient basis for belief in their truth and that she was negligent in making them; that they induced reliance by the Smiths to buy the apartment building'; when the escrow closed, every unit in the building was occupied; 60 days after the notices of increased rent were sent, the building was 65 percent vacant; no new tenants could be secured, either at the existing rents or under the proposed new rent schedule; during...

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