Opinion
A132612
05-10-2012
630 CORBETT SAN FRANCISCO, CA, LLC, Plaintiff and Appellant, v. GEORGE M. GREEN et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. CIV-495953)
Plaintiff, a limited liability real estate investment company known as 630 Corbett San Francisco, CA, LLC (Corbett), which has been assigned the rights of the purchasers and former owners of the property at 630 Corbett Avenue in San Francisco (the 630 Corbett property), Marina Portnov and Yelena Glezer, has taken this appeal from an order granting defendants' motion for summary judgment and the subsequent dismissal of plaintiff's action. We conclude that defendants have established as a matter of law that none of the plaintiff's asserted causes of action can prevail, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On May 1, 2007, a business entity known as "630 Corbett, LLC," and its affiliate called Prado Group, Inc. (Prado), a privately held San Francisco real estate development and investment management company, purchased the 630 Corbett property, a 10-unit apartment building, for $3,050,000. Prior to purchasing the 630 Corbett property, 630 Corbett, LLC, through one of its principals Craig Greenwood, engaged a licensed contractor, Stephen Gogol and his company S. J. Gogol Construction (Gogol), and a registered engineer to inspect the building. According to the reports, although no "structural problems," fungus damage or termite infestation in the building were found, water intrusion was detected in the basement, the floor of a storage room, and in three apartment units. The roof was specified as the likely origin of the moisture. A recommendation was made to 630 Corbett, LLC to contact a licensed roofing contractor and "open up the affected areas" for inspection.
630 Corbett, LLC, engaged defendant George Green, a licensed real estate broker, and his brokerage firm G.M. Green Real Estate, to act as "Managing Director" of the 630 Corbett property and business. Green received the reports that were given to the buyers before their purchase of the Corbett property. He also accompanied a property inspector in March of 2007 during an examination of the building for "signs of structural problems or deficiencies." "[S]igns of cracking" in the roof were found, and replacement of the roof was proposed.
We will refer to defendants George Green and his brokerage firm G.M. Green Real Estate collectively as Green."
Green selected Aaron Sinel, an executive vice-president of DeWolf Realty, to act as "hands-on" manager of the 630 Corbett property. Green visited the property only infrequently thereafter. Beginning in 2007, Sinel actively managed the 630 Corbett property by maintaining tenant files, responding to tenant complaints with the condition of the building, hiring vendors to perform repair work, and collecting rents. William Fuson, an assistant property manager at DeWolf Realty, was also assigned by Sinel to assist with management of the 630 Corbett property. According to Sinel, tenant calls or complaints at the 630 Corbett property went to the DeWolf Realty "work order desk," and were transferred from there to him or Fuson. The property manager then typically processed a "work order" to a contractor to implement repairs. Sinel declared that he worked "closely" with the 630 Corbett property owners to respond to tenant complaints and facilitate necessary repairs. Rent checks from tenants at the 630 Corbett Property also went through the DeWolf Realty office.
By October of 2007, DeWolf Realty signed a contract with Young's Roofing, Inc. (Young's Roofing), to repair and waterproof one of the two roofs - the "main" roof - on the 630 Corbett property building. The agreement included unspecified flashing work. Before the work was performed, a severe rainstorm in January of 2008 resulted in leakage through the roof into units 630 and 101, and flooding of a hallway. Green instructed Sinel to "take care of it." Sinel arranged for replacement of the leaking roof pursuant to the previously signed contract. He also signed a work order to patch holes in the ceiling above unit 101 and apply caulking to the outside of a wall on top of a leaking window pane. A janitorial service performed the caulking on the wall outside unit 101. Following the repair work on the ceiling done by Young's in February of 2008, Sinel, Green and Greenwood did not receive any complaints of "further roof leaks" from tenants in the building.
The contract with Young's included a six-year warranty against defects in workmanship.
In September of 2008, 630 Corbett, LLC and Prado engaged Green and his brokerage company to act as agent for the sale of the 630 Corbett property. Green prepared an "offering memorandum" for the property, which described the property and provided "financial information" in the nature of rental income, expenses, vacancy rate, and net operating income, for potential buyers. The 630 Corbett property was placed on the market in September of 2008 at an asking price of $3,095,000.
Marina Portnov and her sister Yelena Glezer received the offering memorandum and prior building inspection reports from Green. On October 1, 2008, Green accompanied Portnov on a "walk-through" inspection of the building. Portnov noticed blistering paint on a hallway wall, which Green advised her was caused by "water intrusion from one of the two roofs" during the storm in January of 2008. Green also stated to her that the roof had been replaced and "the problem was solved." Portnov relied on Green's statement that the roof had been repaired, and did not engage in any further investigation of the source of the paint bubbles on the wall.
On October 8, 2008, Portnov and Glezer submitted an offer of $2,962,500 to purchase the 630 Corbett property, which was accepted without a counter-offer by 630 Corbett, LLC. Portnov, a licensed real estate agent, acted as agent for the buyers. Through Green, the prospective buyers were provided by the seller with forms entitled "Real Estate Transfer Disclosure Statement" and "Seller's Supplement to the Real Estate Transfer Disclosure Statement." After consultation with Sinel, Green also provided a "complete disclosure package" to Portnov as agent for the buyers prior to the close of escrow, which included all of the reports, disclosures and financial information on the property. On the form documents Greenwood provided information that in January of 2008 the roof had leaked into unit 302, and into a hallway, but a new roof installed thereafter "stopped" the leaks. None of the disclosed information specifically referred to the leak and water intrusion into unit 101, with the exception of the damage from the January 2008 storm. The prospective sellers were advised to "have their own inspection."
Portnov hired Gogol to conduct building and pest inspections of the 630 Corbett property in October of 2008. Portnov hired Gogol due to his familiarity with the 630 Corbett property, so he "would go through the building" and tell the buyers "what was the problem." Gogol physically inspected the property, accompanied by Portnov. Portnov did not ask Gogol to examine the roof in the hallway area where she had previously seen paint damage on the wall. In light of her prior conversation with Green, Portnov "understood it's a new roof and the problem was taken care of."
Gogol prepared pest and building inspection reports for Portnov dated October 20, 2008. The reports noted findings of water leakage or moisture on the walls or ceilings at various sites on the building. Specifically, Gogol observed evidence of prior leakage and peeling paint in some locations - for instance, in the laundry room and the stairwell adjacent to the hall doors on the second and third floor levels - but no determination was made of an "ongoing condition." Without opening up the walls Gogol did not and could not observe any defects in the flashing. Gogol made nine recommendations that the walls or ceiling "be opened up" to determine the nature and extent of the damage, and for repairs to the siding, framing and ceiling, where necessary. Nothing in the reports referred to water intrusion, damage or defects in unit 101, other than mildew in the caulking and the need for proper weather stripping of the kitchen door. Portnov and Glezer acknowledged that they received and read Gogol's reports. They did not pursue any further inspection or repair of the building as suggested by Gogol.
On October 27, 2008, the buyers submitted a "Contingency Removal" in which they requested a $20,000 credit for repair work as quoted by the inspector, in exchange for removal of all contingencies to the sale. The sellers countered with an offer of a $10,000 credit, which was accepted by the buyers. Escrow for sale of the 630 Corbett property to plaintiff closed on November 19, 2008. Soon thereafter, the buyers discovered water intrusion at the exterior corners of the building, caused, according to plaintiff's expert declaration, by lack of flashing and waterproofing between the stucco and wood siding. Through the years the water penetrated through the siding, onto the floor beams, and into the apartment units, including unit 101. Caulking had been applied to some exterior areas of the building over the years, and caulking had been applied to the exterior wall of unit 101 in 2008.
Plaintiff filed a complaint for negligent misrepresentation, fraud and concealment, and real estate broker negligence against defendants on June 14, 2010. After defendants answered the complaint and discovery was conducted, defendants filed a motion for summary judgment on February 4, 2011. The trial court granted the motion, based on a finding that Green had no knowledge of the lack of flashing at the corners of the building or other structural defects that caused the water intrusion. This appeal followed.
DISCUSSION
Plaintiff challenges the trial court's finding that the evidence negated Green's knowledge of the building defects with the 630 Corbett property as a matter of law. Pointing out that a seller's real estate broker has a duty to "conduct an inspection for defects" and disclose material defects to a prospective buyer, plaintiff claims "critical, material undisclosed evidence was that water had leaked into and around unit 101 causing extensive damage," due to cracks in the walls, and the lack of adequate flashing or waterproofing in the "gaps between wood siding and stucco siding." Plaintiff submits that despite defendant's denial of knowledge of these defects, reasonable inferences drawn from the evidence in the record indicate Green "was well aware of this water intrusion." Therefore, plaintiff maintains the evidence establishes "triable issues of fact" as to defendant's knowledge of the defects and damages to the property, and the "court erred in granting summary judgment."
I. The Summary Judgment Standards.
Established summary judgment standards guide us in this appeal. "A motion for summary judgment shall be granted when 'all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Code Civ. Proc., § 437c, subd. (c).)" (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) In our review of the merits of the order granting summary judgment in favor of defendants, "our task is to determine whether a triable issue of material fact remains to be adjudicated. [Citations.] It is not the function of a summary judgment proceeding to decide the merits of issues but merely to ascertain whether issues of fact exist to be tried." (Flowmaster, Inc. v. Superior Court (1993) 16 Cal.App.4th 1019, 1025.)
" ' "A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail." [Citation.] The pleadings define the issues to be considered on a motion for summary judgment. [Citation.] As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. [Citation.]' [Citation.] 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' [Citation.]" (MacKay v. Superior Court (2010) 188 Cal.App.4th 1427, 1435.) Thus, if a defendant moves for summary judgment, " 'he must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not— otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.' [Citation.]" (Prouty v. Gores Technology Group (2004) 121 Cal.App.4th 1225, 1231.)
Once a defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action, "the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action." (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1217.) We must consider all of the evidence and all of the inferences reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 549 (DeJung).)
"We review orders granting or denying a summary judgment motion de novo. [Citations.] We exercise 'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' [Citation.]" (MacKay v. Superior Court, supra, 188 Cal.App.4th 1427, 1435.)
II. The Merits of Plaintiff's Causes of Action.
Turning to the merits of the trial court's ruling, plaintiff's three causes of action for negligent misrepresentation, fraud and concealment, and real estate broker negligence bring into play common elements and issues in the context of the present appeal. The gravamen of plaintiff's causes of action against defendants, whether considered as broker negligence or some form of misrepresentation, is that Green, as the seller's agent, misrepresented that the new roof repaired the previously experienced leaks, and negligently and fraudulently failed to disclose to the buyer of the 630 Corbett property that defective flashing and waterproofing between the stucco and wood siding at the corners of the building resulted in water intrusion. (See Loken v. Century 21-Award Properties (1995) 36 Cal.App.4th 263, 272.) All of the causes of action implicate the nature and scope of the duty of disclosure of the seller's agent to the buyer of property.
The elements of fraud are (a) a misrepresentation through false representation, concealment, or nondisclosure; (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868; Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.) "The tort of negligent misrepresentation does not require scienter or intent to defraud. [Citation.] It encompasses '[t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true' (Civ. Code, § 1710, subd. 2), and '[t]he positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true' (Civ. Code, § 1572, subd. 2; see Fox v. Pollack (1986) 181 Cal.App.3d 954, 962 [describing elements of the tort])." (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173-174.) " 'If the defendant has no belief in the truth of the statement, and makes it recklessly, without knowing whether it is true or false, the element of scienter is satisfied.' [Citations.]" (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 415.) Where, as here, fraud is based on concealment or nondisclosure of material facts, a duty to disclose the fact to the plaintiff must also exist. (Blickman Turkus, supra, at p. 868; Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.)
Real estate agents and brokers owe the purchaser of property "a statutory duty to conduct a 'reasonably competent and diligent visual inspection of the property offered for sale and to disclose to [a] prospective purchaser all facts materially affecting the value or desirability of the property that an investigation would reveal . . . .' (Civ. Code, §§ 2079, subd. (a), 2079.16; see also Civ. Code, § 1106.)" (Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1115-1116.) The common law duty of care of a seller's broker, derived from the decision in Easton v. Strassburger (1984) 152 Cal.App.3d 90, 102-104, "including the duty to disclose facts about the property, has been codified in [Civil Code] sections 2079 through 2079.6. Section 2079, subdivision (a) provides, in relevant part: 'It is the duty of a real estate broker . . . to a prospective purchaser of residential real property . . . to conduct a reasonably competent and diligent visual inspection of the property offered for sale and to disclose to that prospective purchaser all facts materially affecting the value or desirability of the property that an investigation would reveal, if that broker has a written contract with the seller to find or obtain a buyer . . . .' In section 2079.12, the Legislature expressly provided that the statutory duty of care, including the duty of disclosure contained in section 2079, 'is declarative of the common law regarding this duty.' The Legislative Counsel's Digest to Assembly Bill No. 2935 (1995-1996 Reg. Sess.), which enacted section 2079.12, states that by making the statutory duty of care, including the duty of disclosure, declarative of the common law, the Legislature intended the statutory duty to 'preempt the common law regarding this duty.' (Stats. 1996, ch. 476, § 1.)" (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 412-413(Assilzadeh).)
"Section 2079 requires a reasonably competent and diligent 'visual' inspection and disclosure of any material defects which 'such an investigation' would reveal [citation]. The 'inspection to be performed' under that provision, moreover, 'does not include or involve an inspection of areas that are reasonably and normally inaccessible to such an inspection . . . .' (§ 2079.3.)" (Wilson v. Century 21 Great Western Realty (1993) 15 Cal.App.4th 298, 308 (Wilson).)The dual nature of this duty "does not sound exclusively in negligence. While the first prong of the obligation (inspection) embodies traditional negligence concepts, breach of the second prong (disclosure of material facts) encompasses actionable conduct associated with both negligence and negligent misrepresentation." (Loken v. Century 21-Award Properties, supra, 36 Cal.App.4th 263, 271; see also Robinson v. Grossman (1997) 57 Cal.App.4th 634, 640-641.)
A. The New Roof Representation.
We look first at plaintiff's assertion of an affirmative misrepresentation by defendants: that Green falsely represented the water intrusion had been stopped by the new roof installed by Young's Roofing in February of 2008. Plaintiff claims Green was aware but failed to disclose that the replacement roof did not stop the water intrusion caused by the defective flashing and waterproofing at the building corners.
The undisputed evidence before us indicates that when 630 Corbett, LLC purchased the building in May of 2007, a building inspection report disclosed water intrusion in the basement, a storage room, and three apartment units, that was attributed to the roof. Replacement of the roof was recommended. Following a severe rainstorm in January of 2008 that caused leakage through the roof into units 302 and 101, and flooding of a hallway, Green and Sinel arranged for replacement of the leaking roof and flashing by Young's, and repair of existing holes and cracks in the ceiling and wall outside unit 101. Thereafter, Green and his appointed "on-site" property manager Sinel, as well as the property owner Greenwood, received no complaints of water intrusion through the roof from the tenants in the building. Green affirmatively declared without contradiction that he neither had knowledge of any structural deficiencies, nor received information from reports, tenant complaints, or other sources, that the new roof failed to stop the water intrusion into the building.
Thus, when Green advised Portnov during their "walk-through" that the new roof put an end to leaks into the building, he had no reason to believe the facts were otherwise or the statement was untrue. Green also provided Portnov with a receipt for the roof replacement along with previous inspection reports, and represented that "after the roof had been replaced, there were no reports from tenants of further leaks in the area of the new roof." Nothing in the record contradicts or casts the slightest doubt upon Green's unequivocal declaration that he did not receive any complaints of water intrusion after the roof repairs were completed. In fact, Sinel corroborated Green's affirmation of lack of knowledge by also declaring that no communications or complaints of water leakage from tenants were received between the replacement of the roof by Young's in February of 2008 and the close of escrow in November of 2008.
To be liable for a misrepresentation or concealment of a material fact, the seller or his or her agent must have actual knowledge. (See Assilzadeh, supra, 82 Cal.App.4th 399, 410; San Diego Hospice v. County of San Diego (1995) 31 Cal.App.4th 1048, 1055- 1056.) Without any indication or notice of water intrusion following the roof replacement and repairs to unit 101, Green had no knowledge of damage to the roof, and no duty to plaintiff to inquire further to discover the existence of undetected and unidentified defects. (Padgett v. Phariss (1997) 54 Cal.App.4th 1270, 1286.) Moreover, Green's representation that the new roof had "solved" the water intrusion problem was not false when considered in the limited context of Portnov's inquiry about blistering paint on a hallway wall.
Plaintiff argues that while Green professed ignorance of the failure of the new roof to prevent further water damage, "reasonable inferences" from the evidence demonstrate his "knowledge of the leak in unit 101." To support an inference of knowledge, plaintiff points to evidence that Green, in his "managerial" position, was informed of water intrusion and damage to unit 101, but "never disclosed anything about these facts to Portnov or Glezer."
We recognize that in our review of the summary judgment ruling we must " 'view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom. [Citation.]' [Citation.]" (DeJung, supra, 169 Cal.App.4th 533, 549.) Also, "[s]ummary judgment is not appropriate unless only one reasonable inference can be drawn from undisputed facts." (Cleveland v. Internet Specialties West, Inc. (2009) 171 Cal.App.4th 24, 33.) But here, Green's knowledge of a prior leak into unit 101 does not lead to the reasonable inference that he was aware of subsequent water intrusion from a different source. The unit 101 leak known to Green was attributed to a discrete cause, and thought to have been repaired by replacement of the roof and caulking of the existing holes and cracks in the ceiling and wall outside the unit. No evidence was presented that unit 101 displayed any sign of moisture intrusion when Green disclosed to Portnov that the prior leak was repaired. (Pagano v. Krohn (1997) 60 Cal.App.4th 1, 8 (Pagano).) Neither Green nor anyone else received complaints of water intrusion after the replacement of the roof and other repairs to unit 101. The undisputed evidence establishes as a matter of law that Green had no knowledge of the fact that the replacement roof failed to remedy the water intrusion problem, and no reason to doubt the accuracy of his representation. (Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 163.) Thus, his statement to Portnov that the problem had been "solved" was not an actionable misrepresentation. (Ostayan v. Serrano Reconveyance Co. (2000) 77 Cal.App.4th 1411, 1419.)
B. The Failure to Detect and Disclose Defective Flashing and Waterproofing.
We turn to plaintiff's allegation of Green's failure to disclose the water intrusion into the building due to defective flashing and waterproofing between the stucco and wood siding at the corners of the building. Plaintiff argues that Green failed to perform his duty to "conduct an inspection for defects for the benefit of the buyer," and disclose to a "prospective buyer material facts affecting the value or desirability of the property being offered for sale." (Citing Holmes v. Summer (2010) 188 Cal.App.4th 1510, 1518-1519.)
Again, we proceed from the factual premise, established by uncontradicted evidence, that Green was unaware of the defective flashing and waterproofing at the corners of the building. His liability, if any exists, must be based on his dual obligations as seller's agent to discover the defect through a reasonably competent and diligent inspection of the property, and pass on to prospective purchasers material information revealed by the inspection. (Formet v. The Lloyd Termite Control Co. (2010) 185 Cal.App.4th 595, 600.)
The record before us establishes that Green disclosed to Portnov the three pest and building inspection reports completed by Gogol in March of 2007, which found water intrusion, identified the roof as the cause of the water intrusion, and recommended further inspection. Green also provided the buyers with a disclosure package that included all of the reports and information on the property, including a reference to the roof leakage and replacement, along with a repair invoice. In October of 2008, Green met with Portnov, escorted her on a "walk through" of the property, and mentioned the roof repair in response to her query about blistering paint on the wall. During that visual observation of the property, Green did not observe any structural deficiencies with the building. In the disclosure statements provided by Green he recommended that the buyers conduct their own inspections. Gogol's subsequent inspection reports for the buyers detailed prior and existing water intrusion, and explicitly recommend opening and further inspection of the walls, siding, framing, and ceiling.
We conclude that Green did not have a further duty to undertake more rigorous efforts to discover defects in the building. The lack of flashing and waterproofing was not revealed from visual observation, the prior inspection reports, or tenant complaints, and was not perceptible without "opening up" the building or, at the very least according to plaintiff's expert, engaging a licensed contractor to discern the visual evidence of a history of caulking at the exterior corners of the building.
Without any indication of the structural defects from the sources at Green's disposal, we decline to impose upon him an "intrusive, speculation-based duty of inspection and disclosure" that would have necessitated examining normally inaccessible interior areas. (Wilson, supra, 15 Cal.App.4th 298, 308; see also Padgett v. Phariss, supra, 54 Cal.App.4th 1270, 1282.) "The inspection required by section 2079 'does not include or involve an inspection of areas that are reasonably and normally inaccessible to such an inspection, nor an affirmative inspection of areas off the site of the subject property or public records or permits concerning the title or use of the property, and, if the property comprises a unit in . . . a condominium . . . does not include an inspection of more than the unit offered for sale . . . .' (§ 2079.3.) Moreover, section 2079.5 makes clear that '[n]othing in this article relieves a buyer or prospective buyer of the duty to exercise reasonable care to protect himself or herself, including those facts which are known to or within the diligent attention and observation of the buyer or prospective buyer.' It is thus clear that under this statutory scheme, 'once the sellers and their agent make the required disclosures, it is incumbent upon the potential purchasers to investigate and make an informed decision based thereon.' [Citation.]" (Assilzadeh, supra, 82 Cal.App.4th 399, 413.)
In Pagano, supra, 60 Cal.App.4th 1, 5, summary judgment was granted in favor of the defendants in an action brought by the buyers of a condominium unit against the seller, the seller's agents, and the buyers' agent, on various theories, all arising out of defendants' alleged nondisclosure that the property was afflicted with a severe water intrusion problem. Plaintiff claimed the agent for the seller "falsely represented that the subject property was free of a water intrusion problem and/or concealed the existence of a water intrusion problem," breached her "duty under Civil Code section 2079 to conduct a reasonably competent and diligent inspection and disclose all material facts such an investigation would reveal," and breached her "duty to disclose all material facts within her knowledge." (Id. at p. 8, fn. omitted.) Before the buyers made their offer, the seller's agent disclosed that some units in the development had suffered water intrusion, and as a result litigation by the homeowners association against the developer had been filed. After escrow closed, the buyers discovered dry rot and dampness in an area from which carpet and baseboard had been removed, and brought suit alleging a failure to disclose the water damage to the garage. (Id. at pp. 6-7.) No evidence was presented that the seller's individual unit showed any sign of water intrusion at the time of the disclosure, or that the agent had any knowledge of a water intrusion problem with the seller's unit. (Ibid.) The summary judgment ruling was affirmed on appeal. (Id. at p. 10.) The court found that the disclosures made by the seller's agent to the buyer "were sufficient" to comply with section 2079, and the agent "was not duty bound to elaborate on those facts by providing further details regarding the various manifestations of water intrusion throughout the development or the precise allegations in the Association's complaint against the developer." (Pagano, supra, at pp. 8, 10.) The court added that the additional undisclosed details were within the buyers' "own diligent attention" within the meaning of section 2079.5, and were not required of the seller's agent. (Pagano, supra, at p. 10.)
Here, as in Pagano, defendants provided the buyers with information that disclosed those defects known or discoverable by inspection of reasonably and normally accessible areas. The evidence also established that Green's disclosures and representations were made in good faith, as no tenants complained of suffering from water intrusion after the repairs were made. Green neither misrepresented nor failed to disclose facts relating to known or reasonably discoverable water intrusion within the building. (Calemine v. Samuelson, supra, 171 Cal.App.4th 153, 164.) Disclosure of additional unknown information was not required of defendants under the facts presented. With the information provided them, the buyers had the responsibility to investigate and "ascertain 'the precise nature and scope' " of the water intrusion problem. (Ostayan v. Nordhoff Townhomes Homeowners Assn. Inc. (2003) 110 Cal.App.4th 120, 130; see also Pagano, supra, 60 Cal.App.4th 1, 12.) We therefore conclude the trial court correctly determined that no triable issues of material fact existed, and the motion for summary judgment in favor of defendants was properly granted. (Assilzadeh, supra, 82 Cal.App.4th 399, 417; Pagano, supra, at p. 12.)
DISPOSITION
Accordingly, the judgment is affirmed. Costs on appeal are awarded to defendants.
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Dondero, J.
We concur:
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Marchiano, P. J.
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Banke, J.