Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NC041697, Elizabeth Allen White, Judge.
Law Offices of Richard M. Chaskin and Richard M. Chaskin; Law Offices of Robert Scott Shtofman and Robert Scott Shtofman for Plaintiffs and Appellants.
Perona, Langer, Beck & Serbin and Ellen R. Serbin for Defendants and Respondents.
BIGELOW, J.
SUMMARY
Appellants Michele Lawrence, Michael Hamilton, and Jacoby Kingston sued various defendants, including respondents Al D’Amico and Palos Verdes Realty for injuries appellants sustained when a balcony upon which they were standing fell off of a building. D’Amico and Palos Verdes Realty were alleged to be real estate brokers who undertook additional duties with respect to the balcony, including extermination, and performed acts beyond their roles as real estate brokers.
Appellants contend the trial court erred by sustaining D’Amico’s general demurrer to all causes of action alleged against him and granting Palos Verdes Realty’s motion for judgment on the pleadings to the same causes of action. We conclude the trial court correctly sustained the demurrer and granted the motion for judgment. Accordingly, we find no error and affirm.
BACKGROUND AND PROCEDURAL HISTORY
Michele Lawrence, Michael Hamilton, and Jacoby Kingston sued Charles Mueller, Marvey Chapman aka Marvin Chapman, the Marvey Chapman Trust, and various Doe defendants in February 2006. On April 5, 2006, appellants filed their First Amended Complaint (FAC), which added Coast Chem Exterminating, Inc.; Realestatenet, Inc. aka Remax of Cal. and Hawaii C Anyacto aka Remax Palos Verdes; and Al D’Amico as defendants.
The FAC alleged that appellants were invitees and guests at a property in San Pedro owned by Mueller and Chapman. They were injured on February 26, 2005, when a balcony fell 20 to 25 feet to the ground. The FAC included causes of action against respondents for negligence, negligence on a premises liability theory, strict liability for a defective product, negligence liability for a defective product, and breach of express and implied warranties. In causes of action not asserted against respondents, the FAC further sought to set aside a fraudulent conveyance of the property, establish a constructive trust, cancel an instrument, and quiet title.
The FAC alleged that Palos Verdes Realty “was a real estate company that was hired to perform real estate broker services, real estate sale services, inspections and extermination services, and that assumed the duty of performing real estate broker services, real estate sale services, inspections and extermination services to rid the building, balcony, deck, and railing of the Premises of termites and other infestations.” (FAC ¶ 8.) It alleged that D’Amico “was a real estate broker, salesperson, owner, director, officer, employee and/or agent of” Palos Verdes Realty. (FAC ¶ 9.)
Palos Verdes Realty’s answer to the FAC noted that it was erroneously sued as Realestatenet, Inc. aka Remax of Cal. and Hawaii C Anyacto aka Remax Palos Verdes Throughout this opinion, we will refer to this defendant as Palos Verdes Realty.
The FAC further alleged, on information and belief, that Palos Verdes Realty and D’Amico “interviewed, hired, supervised and retained defendant Coast Chem Exterminating, Inc. and that at all times up to and including February 26, 2005,” they were “the principal of Coast Chem Exterminating Inc., with respect to the subject Premises and . . . undertook to and did assume the duty and responsibilities of securing, supervising and reviewing the services performed by Coast Chem Exterminating, Inc. with respect to the building, balcony, deck, and railing of the Premises.” (FAC ¶¶ 8-9.)
The FAC alleged that “the railing, balcony and deck were defectively designed and manufactured, insufficient and inadequate for their intended purpose and use, that the railing, balcony and deck were not properly and adequately secured to the building, [and] that extermination, inspection, real estate broker services, real estate sale services and realtor services were not properly and/or reasonably performed . . . .” (FAC ¶ 15.) No one warned the appellants or provided them with notice of these conditions. (FAC ¶ 16.) On February 26, 2005, the appellants, who were invitees, stood on the balcony and “held onto and/or leaned upon the railing, whereupon the railing, balcony and deck gave way causing each of the Plaintiffs to fall approximately 20-25 feet and to suffer severe and debilitating injuries and damages.” (FAC ¶ 17.)
Palos Verdes Realty, Inc., answered the FAC. D’Amico demurred to the FAC on the ground that none of the five causes of action alleged against him stated a cause of action. He argued he owed no legal duty to appellants because, in his role as a real estate broker, his only duties were to the seller and buyer of the property, not to invitees, such as plaintiffs. Appellants opposed the demurrer on the theory they had alleged that D’Amico assumed duties beyond the general duties of inspection and disclosure owed by a real estate broker. The trial court sustained the demurrer without leave with respect to all causes of action pled against D’Amico.
Palos Verdes Realty then filed a motion for judgment on the pleadings, based upon the theory that because the claims against it were identical to those against D’Amico, the FAC also failed to state a claim against Palos Verdes Realty. Thereafter, appellants filed a motion for reconsideration to the ruling on the demurrer, and a request to amend the FAC. With the motion, they filed a Proposed Second Amended Complaint [PSAC]. The court deferred ruling on the motion for judgment on the pleadings until the motion for reconsideration and the motion to amend the FAC was heard. At a consolidated hearing, the trial court granted the motion for judgment on the pleadings. The court denied the motion for reconsideration and the motion for leave to amend the FAC. The trial court ruled that a declaration by Attorney Robert Shtofman, summarizing a deposition of the Person Most Knowledgeable at Coast Chem Exterminating, Inc., indicating respondents were advised of dry rot on the property and D’Amico told him not to do the repairs, was hearsay and inadmissible.
Respondents filed separate, timely appeals, which have been consolidated.
DISCUSSION
1. The trial court properly sustained a demurrer to the first cause of action without leave to amend.
A demurrer and a motion for judgment on the pleadings test the sufficiency of the complaint by raising questions of law. (Aragon-Haas v. Family Security Insurance Services, Inc. (1991) 231 Cal.App.3d 232, 238; Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 671 (Sanchez).) Both a general demurrer and a motion for judgment on the pleadings admit the truth of all material factual allegations of the complaint, but not the truth of contentions, deductions, or conclusions of fact or law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125; Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) The pleading is liberally construed. (Sanchez, supra, 145 Cal.App.4th at p. 671.)
On appeal from dismissal after a demurrer is sustained without leave to amend, or a motion for judgment on the pleadings is granted, this court independently reviews the sufficiency of the pleading and affirms if any ground raised in the demurrer or motion is well taken, even if we disagree with the trial court’s rationale. (Hayter Trucking, Inc. v. Shell Western E & P, Inc. (1993) 18 Cal.App.4th 1, 13 (Hayter); Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) We review the denial of leave to amend for abuse of discretion. (Hayter, supra, 18 Cal.App.4th at p. 12; Everett v. State Farm General Ins. Co. (2008) 162 Cal.App.4th 649, 655.)
a. Negligence theories
The first cause of action sounded in negligence. It alleged D’Amico, Palos Verdes Realty, and other defendants had duties to inspect; construct, maintain, repair, etc., the railing balcony and deck in a reasonably safe condition; properly and adequately secure the railing, balcony, and deck to the building; perform exterminating services to rid the railing, balcony and deck of termites and other infestations; secure, supervise, and review the services performed by Coast Chem Exterminating, Inc.; perform realtor duties regarding the railing, balcony, and deck in a reasonable manner; and warn persons who foreseeably would use the railing, balcony and deck that it was dangerous, it was not properly and adequately secured to the building, and exterminating services had not been performed with respect to the railing, balcony, and deck. (FAC ¶¶ 19-20.)
This first cause of action alleged that D’Amico, Palos Verdes Realty, and other defendants breached each of their duties. With respect to extermination, it alleged they failed “to perform exterminating services to rid the building, balcony, deck, and railing of the Premises of termites and other infestations,” and failed “to secure, supervise and review the services performed by Coast Chem Exterminating, Inc. with respect to the building, balcony, deck, and railing of the Premises . . . .” (FAC ¶ 21(d).)
The trial court correctly ruled that these facts failed to state a cause of action. The complaint does not state when D’Amico and Palos Verdes Realty were hired or in what capacity but appellants indicate in their opening brief that D’Amico was the seller’s broker and Palos Verdes Realty was their principal. Thus, the FAC alleged a breach of the duties of a realtor in a real estate transaction, including inspection and the provision of information through disclosure, notice, or warning. Civil Code section 2079, subdivision (a) provides that a real estate broker or salesperson representing a seller of residential real estate owes a duty to a prospective purchaser of the 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 . . . .” Real estate brokers and sales agents are also subject to duties to their clients arising from the law of agency. (Coldwell Banker Residential Brokerage Co., Inc. v. Superior Court (2004) 117 Cal.App.4th 158, 164 (Coldwell Banker).) However, “[i]n accordance with the clear and unambiguous language of section 2079, the inspection and disclosure duties of residential real estate brokers and their agents apply exclusively to prospective buyers, and not to other persons who are not parties to the real estate transaction. Only a transferee, that is, the ultimate purchaser, can recover from a broker or agent for breach of these duties.” (Id. at p. 165.)
The FAC alleged the appellants were invitees, not purchasers of the property. Accordingly, the duties of D’Amico and Palos Verdes Realty did not extend to appellants, and they cannot base any claim upon a violation of such duties.
Appellants also alleged that the seller’s agent voluntarily undertook the duty of hiring an extermination service to rid the balcony of termites and other infestations. (FAC ¶ 8) More specifically, the FAC alleged that D’Amico and Palos Verdes Realty “assumed the duty of performing . . . exterminating services to rid the building, balcony, deck, and railing of . . . termites and other infestations.” (FAC ¶¶ 8-9.) As either an elaboration or an alternative, the FAC alleged that D’Amico and Palos Verdes Realty “interviewed, hired, supervised and retained defendant Coast Chem Exterminating, Inc.,” and assumed the duty and responsibility of “securing, supervising and reviewing the services performed by Coast Chem Exterminating, Inc. with respect to the building, balcony, deck, and railing of the Premises.” (FAC ¶¶ 8-9.) D’Amico and Palos Verdes Realty allegedly breached their duty of care in relation to the extermination by “failing to perform exterminating services to rid the building, balcony, deck, and railing of the Premises of termites and other infestations, [and] failing to secure, supervise and review the services performed by Coast Chem Exterminating, Inc. with respect to the building, balcony, deck, and railing of the Premises . . . .” (FAC ¶ 21(d).)
Though Plaintiff claims the issue in this cause of action is D’Amico and Palos Verdes Realty undertaking repair work to the balcony, deck and railing that was never alleged in the FAC which was the subject of the demurrer and MJOP. It was only included in a proposed second amended complaint which was never filed.
Appellants ask this court to enlarge the scope of a seller’s real estate agent’s duties to third parties beyond those set forth in Civil Code sections 2079 through 2079.6 and the seminal cases of Coldwell Banker, supra, 117 Cal.App.4th 158, and FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69 (FSR). Appellants contend this conduct is outside the scope of Civil Code section 2079, Coldwell Banker, and FSR because it alleged a breach of a duty completely separate and distinct from inspection and the provision of information. Appellants claim failing to discharge an undertaking to exterminate wood-destroying pests is not a form of breach of the inspection of disclosure duties and that those cases are therefore not dispositive of the issue at hand. We conclude otherwise.
In FSR, supra,35 Cal.App.4th 69, the Court of Appeal disposed of this issue under strikingly similar facts. In that case, plaintiffs were party goers standing on a balcony at a beach front home in Malibu when it tragically collapsed, causing injury and death. They sued three of the seller’s brokers, contending the brokers had a duty to the party goers to advise the purchaser of a defective beam. (Id. at pp. 71-72.) The broker’s summary judgment motion was denied by the trial court, who found there was a triable issue as to whether the brokers should have known that the prospective purchaser would have a party at the house where guests would get together on the defective balcony in such numbers that it would falter. (Id. at p. 72.) The Court of Appeal disagreed because the brokers “owed no duty to the party goers with whom no broker-customer relationship existed . . . .” (Id. at p. 73.)
Similarly, in Coldwell Banker, supra, 117 Cal.App.4th 158, the minor child of the purchaser of a home sued the seller’s agent (Coldwell Banker), alleging it breached a variety of duties of care, including failing to disclose the existence of microbial contamination which caused the boy to develop asthma. The broker’s demurrer to the complaint was overruled by the trial court. On appeal, the court granted a petition for writ of mandate, finding the brokers had no duty to the minor child who was not a party to the real estate transaction. (Id. at pp. 162-165.) The court noted that the duties of real estate brokers are created by regulatory statutes and the general law of agency. (Id. at p. 164.) Further, that the Legislature codified a real estate agent’s duties in the 1985 statutory scheme entitled “Duty to Prospective Purchaser of Residential Property” now codified in Civil Code section 2079 et. seq. “Under section 2079, subdivision (a), a real estate broker has a duty 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. . . .’ ” (Id. at p. 164.) The court noted there were also certain disclosures required to be made pursuant to Civil Code section 1102 et seq., “which was intended to provide real estate agents the means to elicit material information from the seller about the property listed for sale, and to deliver that information to the buyer.” (Ibid.) Both statutes clearly indicate that real estate brokers and their agents have duties that apply only “to prospective buyers, and not to other persons who are not parties to the real estate transaction.” (Id. at p. 165.) The court concluded, “[w]here as here, ‘ “a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others . . . [and] the court is without power to supply an omission.” ’ [Citations.]” (Ibid.)
As in Coldwell Banker, this court does not have the power to extend the duties of real estate brokers to third parties. Significantly, appellants have not advanced any case that holds it is appropriate to so extend a seller’s real estate agent liability to third parties. Instead, appellants cite to Schwartz v. Helms Bakery (1967) 67 Cal.2d 232, 238 (Schwartz), and Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334 (Browne), for the proposition that one who undertakes an act must do so with care. Neither of those cases considers a real estate agent’s duty to third parties. In Schwartz, the California Supreme Court determined that a business owner owes a duty of care to a child he directed to his business when he crosses the street to rendezvous with him. (Schwartz, supra,67 Cal.2d at p. 235.) In Browne, the Sixth District Court of Appeal held that a construction company and the corporation who hired it could be held liable for negligent performance of a voluntary undertaking for furnishing and then abruptly removing safety equipment which might have broken plaintiff’s fall from a ladder. (Browne, supra, 127 Cal.App.4th at p. 1337.) It is true that both cases generally stand for the proposition in law that when a person who is under no obligation to provide a service to another voluntarily undertakes to do so, that person will be regarded as having assumed a duty to provide that service, and he or she may be liable for negligent acts or omissions in performing that duty. (Paz v. State of California (2000) 22 Cal.4th 550, 558-559.) However, since those cases do not discuss or contemplate the specific statutory scheme or case law limiting the liability of a real estate agents to third parties, they are by no means dispositive here. Accordingly, the trial court properly sustained the demurrer.
b. Leave to amend
Plaintiffs have the burden of demonstrating how they could amend the FAC and how the proposed amendment would change the legal effect of the pleading. (Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 902 (Community Cause).) Given that appellants did not and cannot assert how the third parties can somehow become persons to whom the broker owes a duty, the demurrer was properly sustained without leave to amend.
2. The trial court properly sustained a demurrer to the second cause of action without leave to amend.
The second cause of action also sounded in negligence, on a premises liability theory. It incorporated the allegations of paragraphs 1-17. It further alleged that the railing, balcony, and deck presented a dangerous condition that was, or should have been known to all of the defendants. (FAC ¶ 27.) Paragraph 27 specifically alleged that the “railing, balcony and deck were not properly and adequately secured to the building . . . .” Paragraph 28 alleged that D’Amico and Palos Verdes Realty knew or should have known that appellants were ignorant of the dangerous condition. In their paragraph seeking punitive damages, plaintiffs further alleged that all defendants knowingly created and/or maintained this dangerous condition. (FAC ¶ 31.)
a. Premises liability theory
For all the reasons set forth in part 1(a) of this opinion, we conclude again that D’Amico and Palos Verdes Realty owed no duty to invitees on the property and therefore this cause of action fails. We also note that premises liability depends upon the defendant’s control over the property: “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) The FAC contained no allegation that D’Amico and Palos Verdes Realty owned, possessed, or controlled the premises. Indeed, paragraph 2 alleged that defendants Mueller and Chapman “purported to be owners, possessors, landlords, tenants, and/or in control of the real property . . . .” Accordingly, it did not state a premises liability variety of negligence claim.
Appellants’ reply brief argued that the allegation in paragraph 9 that D’Amico undertook and assumed the “responsibilities of securing, supervising and reviewing the services performed by Coast Chem Exterminating, Inc.” regarding the balcony created an inference that “for a period of time Respondents possessed, managed and controlled the balcony and railing portion of the premises and that they created or maintained a dangerous condition . . . .” The pleading did not create such an inference. Even if it had, there was no allegation that either D’Amico or Palos Verdes Realty owned, possessed, or controlled the balcony and railing at the time of the accident.
b. Leave to amend
As previously noted, it is plaintiffs burden to demonstrate how they could amend the FAC to address the problems with the complaint. (Community Cause, supra, 124 Cal.App.3d at p. 902.) On appeal, they have not addressed the defects discussed herein, much less suggested a curative amendment. The second cause of action in their proposed second amended complaint suffered from the same defects with respect to D’Amico and Palos Verdes Realty. Accordingly, it cannot be said that the trial court abused its discretion in denying leave to amend.
3. The trial court properly sustained a demurrer to the third cause of action without leave to amend.
a. Strict liability for defective product
The third cause of action was designated as a strict liability for defective product claim. It incorporated the allegations of paragraphs 1-17. It further alleged that D’Amico and Palos Verdes Realty “engineered, manufactured, fabricated, designed, assembled, distributed, imported, bought, sold, inspected, serviced, repaired, marketed, warranted, supplied, modified, and/or provided the railing, balcony, deck, and/or some or all of the component parts thereto, and the exterminator supplies used thereon (if at all).” (FAC ¶ 33.) It alleged that “the railing, balcony and/or deck, including some or all of the component parts, was [sic] defective in its engineering, manufacture, fabrication, design, assembly, distribution, sale, inspection, servicing, repair, marketing, warranty, supply, modification, and/or provision at the time it left its place of manufacture and/or was [sic] offered for sale to the general public” by D’Amico and Palos Verdes Realty. (FAC ¶ 34.) Alternatively, the cause of action alleged that “the exterminator supplies used thereon (if at all) were defective in their manufacture, fabrication, design, assembly, distribution, sale, inspection, servicing, repair, marketing, warranty, supply, modification, and/or provisions at the time they left their place of manufacture and/or were offered for sale to the general public.” (FAC ¶ 34.)
Paragraph 35 alleged that the “railing, balcony and/or deck . . . was capable of causing, and did cause, severe personal injuries to the ordinary users and/or bystanders thereof while being used in a reasonably foreseeable manner, thereby rendering the railing, balcony and/or deck unsafe and dangerous for use by foreseeable users and/or bystanders thereof.” The FAC further alleged that the “railing, balcony and/or deck gave way” as a direct and proximate result of the “dangerous and defective condition” of the “railing, balcony and/or deck and its component parts . . . and/or . . . the exterminator supplies used on said railing, balcony and/or deck and its component parts . . . .” (FAC ¶ 36.)
Appellant’s conclusory allegations that D’Amico and Palos Verdes Realty, real estate brokers and agents, are engaged in the manufacture, distribution or design of component parts for building balconies or exterminator supplies are conclusions of fact and law which are not presumed true for purposes of a demurrer. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Moore v. Regents of University of California, supra, 51 Cal.3d at p. 125.) The deductive nature of these allegations is readily apparent when reviewing what appellants allege elsewhere in the complaint. The FAC alleged that Palos Verdes Realty “was a real estate company that was hired to perform real estate broker services, real estate sale services, inspections and extermination services.” (FAC ¶ 8.) The same holds true for D’Amico, whom appellants alleged “was a real estate broker, salesperson, owner, director, officer, employee and/or agent of” Palos Verdes Realty. (FAC ¶ 9.) Indeed, the thrust of appellant’s complaint is that D’Amico and Palos Verdes Realty took on the job of hiring an exterminator, Coast Chem Exterminators, Inc., to rid the balcony of a termite infestation. This is inconsistent with one who is engaged in the business of manufacturing or building component parts for balconies and exterminator supplies.
However, even more telling is what is missing from the allegations in the complaint. The FAC does not allege that D’Amico and Palos Verdes Realty had a manufacturing plant that made component parts for balconies or extermination supplies, where it was, what specific part of chemical the real estate agents made, how the unidentified product was defective when it left the real estate agents possession, or how it was sold to the general public. The allegations are wholly speculative and must be rejected. The trial court therefore properly sustained the demurrer to the third cause of action.
Even if considered true, however, the allegations do not state a cause of action. “The elements of a strict products liability cause of action are a defect in the manufacture or design of the product or a failure to warn, causation, and injury.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) The complaint alleged that D’Amico and Palos Verdes Realty breached their duty by failing to perform the exterminating services. (FAC ¶ 21(d).) If that allegation is to be taken as true, the product never reached appellants to cause injury in the first instance.
Further, “ ‘[r]egardless of the theory which liability is predicated upon . . . it is obvious that to hold a producer, manufacturer or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold or was in some way responsible for the product . . . .’ ” (Garcia v. Joseph Vince Co. (1978) 84 Cal.App.3d 868, 874.) As previously noted, appellants failed to allege these elements.
b. Leave to amend
The trial court did not abuse its discretion in denying leave to amend. At the hearing on the motion, appellants did not assert any plausible way it could resolve these defects in the pleadings. Appellants did not attempt to change the pleadings in the PSAC. Neither do appellants suggest the complaint can be amended on appeal. Appellants only contend that the allegations are improbable but must be accepted as true. Under these circumstances, denial of leave to amend cannot be considered an abuse of discretion.
4. The trial court properly sustained a demurrer to the fourth cause of action without leave to amend.
a. Negligence liability for defective product
The fourth cause of action was very similar to the third, but based upon a negligence theory. It alleged that D’Amico and Palos Verdes Realty “were engaged in the business of manufacturing, fabricating, designing, assembling, distributing, buying, selling, leasing, inspecting, servicing, repairing, marketing, importing, warranting, supplying, modifying, and/or providing railings, balconies and/or decks, such as the subject railing, balcony and/or deck and/or the exterminator supplies used thereon (if at all).” (FAC ¶ 42.) It also alleged that these defendants “owed plaintiffs a duty to use reasonable care and prudence in the manufacturing, fabricating, designing, assembling, importing, distributing, buying, selling, leasing, inspecting, servicing, repairing, marketing, warranting, supplying, modifying, and/or providing railings, balconies and/or decks such as the subject railing, balcony and/or deck, and the exterminator supplies used thereon (if at all).” (FAC ¶ 43.) It further alleged that D’Amico and Palos Verdes Realty “negligently, carelessly, and/or recklessly manufactured, fabricated, designed, assembled, distributed, imported, bought, sold, inspected, serviced, repaired, marketed, warranted, supplied, modified, and/or provided the subject railing, balcony and/or deck and the exterminator supplies used thereon (if at all), such that the subject railing, balcony and/or deck was defective, dangerous, and unsafe for the use and purpose for which it was intended while used as recommended and instructed by defendants, and each of them, and such that the exterminator supplies used thereon (if at all) were defective, dangerous, and unsafe for the use and purpose for which they were intended while used as recommended and instructed by defendants, and each of them.” (FAC ¶ 44.) Paragraph 45 alleged that D’Amico and Palos Verdes Realty knew or should have known that the “railing, balcony and/or deck” and the exterminating supplies used thereon were defective.
Paragraph 46 alleged that the “railing, balcony and deck” were being used in a reasonably foreseeable manner on February 26, 2005. Paragraph 47 alleged that “[a]s a direct and proximate result of the above described negligent, careless, and/or reckless conduct of defendants . . . plaintiffs . . . were caused to suffer severe, debilitating and permanent personal injuries.”
For all the reasons set forth in part 1(a) of this opinion, we conclude again that D’Amico and Palos Verdes Realty owed no duty to invitees on the property and therefore this cause of action fails. In addition, the same problems of conclusory and inconsistent pleading apparent in the third cause of action are similarly present here. Last, there was no allegation that the product defect caused the balcony to fall. Accordingly, the trial court properly sustained the demurrer.
b. Leave to amend
Once again, appellants have not and do not assert how the cause of action can be amended. As such, no abuse of discretion is apparent.
5. The trial court properly sustained the demurrer to the fifth cause of action.
The fifth cause of action was similar to the third and fourth causes of action, but based upon a theory of breach of express and implied warranties of merchantability, fitness for intended purpose, and freedom from defects. It alleged that D’Amico and Palos Verdes Realty “expressly and/or impliedly warranted to plaintiffs and to that class of people similarly situated, that the subject railing, balcony, deck and the extermination supplies used thereon (if at all) were of merchantable quality and production, were free of design and manufacturing defects, and were safe for the use for which they were intended.” (FAC ¶ 53.) Paragraph 54 alleged the defendants breached the express and implied warranties “in that the subject railing, balcony, deck and the extermination supplies used thereon (if at all) were not of merchantable quality and production, were not free from design and manufacturing defects, and were not safe for the use for which they were intended.” Paragraph 55 alleged that the balcony “gave way” as a direct and proximate result of the defendants’ breach of warranties.
The FAC did not allege privity of contract between appellants and D’Amico or Palos Verdes Realty. Privity is an essential element to a breach of warranty cause of action. (All West Electronics, Inc. v. M-B-W, Inc. (1998) 64 Cal.App.4th 717, 725.) Given the allegation that appellants were invitees, not transferees, they cannot amend to allege this essential missing element. Accordingly, the trial court properly sustained the demurrer to this cause of action without leave to amend.
DISPOSITION
The judgment in each of the consolidated appeals is affirmed. Respondents are awarded costs on appeal.
We concur: COOPER, P.J., RUBIN, J.