The Motion for Summary Judgment or, Alternatively, Summary Adjudication of Issues of Defendant, David William Hanna, Trustee of the David William Hanna Trust Dated October 30, 1989, is granted.
Defendant?s Request for Judicial Notice is granted.
Defendant met his initial burden of producing admissible evidence sufficient to show that the plaintiff?s action has no merit, i.e., that, as to each cause of action, one or more elements of the cause of action cannot be established or there is a complete defense.? (CCP ? 437c (a), (p)(2).)? A moving defendant may point to the absence of evidence to support the plaintiff?s case.? (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96.)
Here, Defendant has shown Plaintiff cannot establish damage, an essential element to fraud and negligent misrepresentation, the only two causes of action asserted against Defendant.? (See, Civ. Code ? 1709 [one who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers]; see also, West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792 [elements of negligent misrepresentation, like fraud, include plaintiff suffered resulting damages].)
Civ. Code section 3343(a) provides ?[o]ne defrauded in the purchase, sale or exchange of property is entitled to recover the difference between the actual value of that with which the defrauded person parted and the actual value of that which he received.?? Here, the operative Second Amended Complaint alleges Borneman (the party from whom Plaintiff purchased the property) assigned his rights to Plaintiff, and Plaintiff now stands in Borneman?s shoes.? It alleges Defendant failed to disclose water leaks and damages to Borneman and alleges Borneman suffered damages ?associated with the fact that the price paid by Borneman for his purchase of the Subject Property exceeded the Fair Market Value of the Subject Property if the leaks and resultant damage had been disclosed.?? (?? 18, 23.)? Defendant argues Borneman made over $300,000 in profit after flipping the property shortly after purchasing it from Defendant, and therefore Borneman was not damaged.? Defendant is correct that Borneman was not damaged, but he is incorrect on the reason why.
Borneman suffered no damage, because Plaintiff has not shown, consistent with Civ. Code section 3343(a), that the actual value of the property Borneman received was less than the actual value Borneman paid for the property.? There is no evidence from any witness ? expert or otherwise ? setting these two ?actual values? within the meaning of the statute.
Instead, Plaintiff produces evidence of expenses Plaintiff has incurred in remediating damages as a result of Defendant?s alleged misrepresentations to Borneman and purports to seek additional damages under Civ. Code section 3343(a)(1) which allows damages for amounts actually and reasonably expended in reliance upon the fraud, and 3343(a)(2), which allows for damages in an amount which would compensate the defrauded party for loss of use and enjoyment of the property to the extent that any such loss was proximately caused by the fraud.
The problem is these are Plaintiff?s expenses, not Borneman?s damages.? Plaintiff stands in the shoes of Borneman and can only recover what Borneman could have recovered.? There is no evidence Borneman incurred any expense to remediate damages.
Nor can Plaintiff recover under Civ. Code section 3343(a)(4), which allows for damages (when a plaintiff is the purchaser) of
an amount which will compensate him for any loss of profits or other gains which were reasonably anticipated and would have been earned by him from the use or sale of the property had it possessed the characteristics fraudulently attributed to it by the party committing the fraud.? Plaintiff does not attempt to qualify for this measure of damage, because Borneman had no such damage.? There is no evidence Borneman reasonably anticipated earning a profit from the sale that was later unrealized because of the alleged fraud.
Plaintiff argues there is a triable issue concerning damages, because had Defendant disclosed the defect, Defendant would have incurred the cost to repair the defects or the purchase price would have been reduced to compensate for the estimated repair cost.? He cites the deposition of Borneman where Borneman testified had he known of the 2010 driveway leaks and resulting damage he would have looked into it, would not have pursued the property under the same terms, and he would have made repairing the leaks part of the deal.? Even taking this speculative fact as true, it does not create a triable issue.? There is absolutely no evidence the property was somehow overvalued by virtue of the undisclosed leaks and other problems.
Hence, Plaintiff has not met his burden to produce admissible evidence showing the existence of a triable issue as to damages.? (See, Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.)? Lacking any damages, Plaintiff?s causes of action for fraud and negligent misrepresentation fail.
Because the court finds Plaintiff cannot establish damages, the court need not address Defendant?s second and third arguments that Defendant fully disclosed all known defects.? Defendant is entitled to summary judgment.
Defendant to give notice and to submit a proposed order dismissing Defendant from the case.