Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and an order of the Superior Court of Los Angeles County. (Los Angeles County Super. Ct. No. BC344904 Michael C. Solner, Judge. Judgment reversed; order affirmed in part and reversed in part.
Bookman & Kent, Robert K. Kent and Steven Wolfson for Plaintiff and Appellant.
Robert J. Shulkin; Gemmill, Baldridge & Yguico and Carlos V. Yguico for Defendant and Respondent.
CHANEY, J.
Plaintiff bought a home that was infested with toxic mold. She brought suit against a broker and others, alleging causes of action for fraudulent concealment, negligent misrepresentation, failure to inspect and disclose (Civ. Code, § 2079), and breach of contract, all with regard to the failure to disclose the toxic mold.
The broker moved for summary judgment or summary adjudication of each cause of action. The trial court granted the motion, summarily adjudicating all causes of action in Coldwell Banker’s favor. Plaintiff appealed. We reverse because triable material issues exist.
I
“Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] ‘“We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.”’ [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
A. Purchase of the Property
Plaintiff Joanne Sawaya entered into a “Residential Purchase Agreement” (the purchase agreement) to buy a home in Glendale, California. The listing agent was defendant Coldwell Banker Residential Brokerage Company, represented by Joanne Celic. Coldwell Banker was also the buyer’s agent, represented by Shereen Kelly, plaintiff’s niece. The purchase agreement provided that Coldwell Banker did not guarantee the condition of the property and “strongly advised” plaintiff to have a professional inspect the property, particularly to determine whether mold was present. The agreement provided that the buyer had the right to conduct inspections.
Plaintiff was an unsophisticated buyer, relying on Kelly, her niece, with whom she was close, to inspect the property, read and understand all documents, and take all steps a diligent purchaser would take. Kelly assured plaintiff she would ensure inspections were proper and thorough, there would be no surprises, and plaintiff would be “protected.”
Upon entering the property with Kelly before the purchase, plaintiff noticed “a very strong, musty odor.” Celic later told plaintiff “that she had been informed by the sellers that the source of the odor was a broken toilet and that sellers would repair the toilet and take care of the problem.” Celic conducted a visual investigation of accessible areas of the property and discovered a water stain on the bedroom ceiling. She advised plaintiff to have the property inspected by a professional inspection company. Kelly recommended that plaintiff retain Amrow Inspection Services, Inc. (Amrow), to inspect the property. Amrow inspected the property, commenting, “Moisture stains noted at northeast bedroom.* Recommend asking the seller for further information regarding the history of the damage.*” Amrow’s report did not address the presence or absence of mold. According to plaintiff, Amrow did not inspect for mold.
Plaintiff received a disclosure statement from the sellers in which they stated they were unaware of any mold, flooding or drainage problem or major structural damage.
Plaintiff signed a “Mold Disclosure Agreement, ” in which Coldwell Banker advised her that “every Buyer/Lessee should have a mold test performed by an environmental professional as either a separate test or an add-on to their whole house inspection. This is especially necessary if any of the inspection reports or disclosure documents indicate that there is evidence of past or present moisture, standing water or water intrusion at the property since most mold thrives on moisture.... Any waiver or failure on the part of a Buyer/Lessee to complete and obtain all appropriate tests, including those for mold, is against the advice of Broker.” By signing the mold disclosure agreement, plaintiff agreed Coldwell Banker would have “no further responsibility for protecting [her] against the possibility of mold contamination of the property or any resulting injury.” She further agreed that “[n]othing any sales agent may say to [her] can change this Agreement or the advice contained [in it].”
The day before the final walk-through inspection of the property, plaintiff signed a “Receipt for Reports and Contingency Removal, ” by which she acknowledged she had completed all inspections and review of reports, elected to proceed with the transaction, and assumed any expense for repairs or corrections.
At the final walk-through, plaintiff signed a “Verification of Property Condition, ” by which she agreed “to hold Broker(s) and brokerage employees harmless from any liability, claims, demands, damages, or costs arising out of the contractual obligations of the Buyer and Seller concerning the condition of the Property.”
After the purchase but before moving in, in the course of remodeling, plaintiff removed wallpaper and discovered mold in the master bathroom. Further inspection revealed mold-related damage in the kitchen. An inspector hired by plaintiff discovered that moisture came from inside the wall from the unit above and from the exterior walls in the rear of the unit. After she moved in, plaintiff discovered more defects related to water intrusion in the master bedroom, living room and kitchen. Further inspections revealed more water damage and the presence of toxic mold in wall cavities. The residence is uninhabitable. Plaintiff moved out of the residence in 2005 due to health problems resulting from mold exposure.
B. Complaint
Plaintiff filed suit, asserting four causes of action against Coldwell Banker: fraudulent concealment, negligent misrepresentation, failure to inspect and disclose (Civ. Code, § 2079), and breach of contract. The fraudulent concealment and negligent misrepresentation causes of action were premised on Coldwell Banker’s alleged failure to disclose (1) “improper drainage away from the exterior walls of the unit due to the placement of exterior planters causing pooling of water and interior intrusion, ” (2) “damaged exterior wall material allowing water intrusion, ” (3) lack of an “effective moisture barrier along the exterior walls outside of the master bathroom, master bedroom, living room and kitchen, ” (4) lack of an “effective moisture barrier around windows, ” and (5) lack of protection from water intrusion. If the listing agent had made the proper disclosures, plaintiff would not have purchased the home.
The failure to inspect and disclose cause of action was premised on Coldwell Banker’s breach of its duty “to conduct a reasonably competent and diligent visual inspection... and to disclose all facts materially affecting the value and desirability of the property that such an inspection would reveal.”
With respect to the breach of contract cause of action, plaintiff alleged that she entered into the purchase agreement with the sellers and a second agreement with the homeowners association; she did not allege Coldwell Banker was party to any agreement. Plaintiff suffered financial loss and bodily and emotional injury and incurred medical and legal expenses. She prayed for damages according to proof and attorney fees.
Plaintiff also sued her homeowners association, the seller, a former seller, and one of the inspectors, alleging the latter parties failed to disclose the home’s structural damages. In 2006, the trial court ordered plaintiff to arbitrate her claims against the seller. On July 16, 2008, plaintiff moved unsuccessfully to have the arbitration order vacated.
C. Motion for Summary Judgment or Adjudication
In July 2008, Coldwell Banker moved for summary judgment or, in the alternative, summary adjudication of each cause of action on the following grounds: Coldwell Banker concealed no fact and made no misrepresentation; plaintiff did not and by law could not rely on any representation by it; Coldwell Banker breached no duty to inspect or disclose; and Coldwell Banker was not party to any contract with plaintiff and breached no contractual duty. In support of the motion, Coldwell Banker submitted a separate statement; declarations by Celic and Kelly; a transcript of plaintiff’s deposition; and documents attending the sale. Celic and Kelly declared they were unaware of any of the conditions of the property alleged in the complaint and did not misrepresent the condition of the property as alleged.
Plaintiff opposed the motion, contending Celic and Kelly were aware of a strong musty odor in the property. Plaintiff declared Celic had told her that the sellers represented that the odor was caused by a defective toilet. Neither the odor nor the defective toilet was disclosed by Celic or Amrow or in any documents prepared by the sellers. After wallpaper was removed during renovation, plaintiff ascertained the odor came from mold. Plaintiff contended numerous oral agreements existed between herself and Kelly in her capacity as an agent for Coldwell Banker. The entire broker-buyer relationship was based on an oral agreement, as were numerous sub-agreements, including agreements that Kelly would review and advise plaintiff with respect to all documents, inspect the home to make sure there were no unexpected problems, select a competent inspector who would thoroughly inspect the property, ensure that a complete inspection took place, familiarize herself (Kelly) with all documents plaintiff would sign, and ensure that all documents would be in plaintiff’s best interest.
The motion was heard on November 11, 2008 On January 12, 2009, the trial court granted summary adjudication on all causes of action against Coldwell Banker. In its minute order, the court stated that, “after full consideration of the evidence, evidentiary objections, separate statements and authorities submitted, and arguments of counsel, ” it found no triable issues existed as to whether Coldwell Banker concealed facts from or breached any duty owed to plaintiff, whether plaintiff relied on Coldwell Banker’s statements, or whether plaintiff and Coldwell Banker were parties to any contract. Judgment was entered accordingly. Plaintiff appealed.
II
DISCUSSION
Plaintiff contends the evidence presented below raised triable issues of fact as to whether Coldwell Banker’s disclosures regarding mold and Kelly’s failure to protect plaintiff’s interests were adequate. We agree.
A. Standard of Review
“‘A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’ [Citation.] The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) We strictly construe the moving party’s evidence and liberally construe the opposing party’s evidence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 604.) “‘In other words, the facts... in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true.’” (Ibid.)
B. Fraudulent Concealment and Negligent Misrepresentation
In her first and second causes of action, plaintiff alleges Coldwell Banker “had actual knowledge of certain material facts regarding the Subject Property and further, knew that said material facts were unknown or beyond the reach of Plaintiff, the buyer; said material facts[] included, but are not limited to” “improper drainage away from the exterior walls of the unit due to the placement of exterior planters causing pooling of water and interior intrusion, ” “damaged exterior wall material allowing water intrusion, ” “no effective moisture barrier along the exterior walls outside of the master bathroom, master bedroom, living room and kitchen, ” “no effective moisture barrier around windows, ” and lack of protection from water intrusion. Coldwell Banker failed to disclose these facts and intentionally or negligently misrepresented that the property “was of good value, safe, habitable and desirable.”
Concealment is a species of fraud or deceit. (See Civ. Code, §§ 1710, subd. 3, 1572, subd. 3; Lovejoy v. AT&T Corp. (2004) 119 Cal.App.4th 151, 157–158.) “One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damages which he thereby suffers.” (Civ. Code, § 1709.) “A deceit, within the meaning of the last section, is... [¶]... [¶]... [t]he suppression of a fact, by one... who gives information of other facts which are likely to mislead for want of communication of that fact....” (Civ. Code, § 1710, subd. 3.) “[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612–613.) “‘“The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege that the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.” [Citations.]’ [Citation.]” (Bains v. Moores (2009) 172 Cal.App.4th 445, 454.)
Mere silence does not constitute fraudulent concealment absent a fiduciary or confidential relationship between the parties, or “unless some specially appearing circumstances are shown which of themselves equitably estop a person from relying on his silence or inaction, and which of themselves are sufficient to create on the part of the nonrevealor a positive duty to speak or act.” (Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 562.) Even absent a duty to speak, one who undertakes to speak must not suppress facts that materially qualify those stated. (Civ. Code, § 1710, subd. 3.)
Celic and Kelly declared that nothing was concealed from plaintiff. Plaintiff argues that triable material issues exist as to whether Celic noticed and acknowledged the odor and concealed its cause. We agree.
Celic told plaintiff that the source of the musty odor, according to the sellers, was a broken toilet that the sellers would repair, and that would “take care of the problem.” Celic should have been aware that a musty odor, water stains on the ceiling, and a leak from a broken toilet pointed to a strong possibility of a mold problem. Rather than informing plaintiff of a potential serious toxic mold problem that ultimately forced plaintiff from her home, Celic told plaintiff that the sellers’ repair of the broken toilet would “take care of the problem.” But fixing a leak takes care of the leak; it does not take care of a mold problem.
Simply put, a triable issue of fact exists as to whether Celic “lacked any reasonable ground for believing the statement [that the sellers’ repair of the broken toilet would take care of the problem] to be true, ” and, thus, made a negligent misrepresentation. (Bains v. Moores, supra, 172 Cal.App.4th at p. 454.)
By the same token, a triable issue of fact exists as to whether Celic fraudulently concealed a material fact from plaintiff by misleading her into thinking that repairing the toilet would take care of the problem manifested by the musty odor, water-stained ceiling, and leaking toilet.
Coldwell Banker’s reliance on Civil Code section 1102.4 is misplaced. That section relieves a broker from liability for passing along to the buyer information provided by the seller. The information about the broken toilet is not at issue. What is at issue is Celic’s opinion that the repair of the toilet would “take care of the problem.” That opinion is not the information referred to in section 1102.4, as is made clear by reading the section.
Civil Code section 1102.4 provides:
Thus, plaintiff raised a triable issue of fact as to the fraudulent concealment and negligent misrepresentation causes of action.
Coldwell Banker’s reliance on the “Mold Disclosure Agreement, ” which was among the 40 to 50 pages of documents signed by plaintiff to complete the transaction, does not compel a different result. Plaintiff was told these “were standard documents used in every real estate transaction... and that [she] should just sign them.” So plaintiff signed them without reading them. But assuming plaintiff is held to have read and understood the “Mold Disclosure Agreement, ” her claim is that she was deceived by Coldwell Banker when Celic told her that the sellers “would take care of the problem.” This was an affirmative act by Celic, dissuading plaintiff from being concerned about any problem connected with the musty odor, and prevents Coldwell Banker from hiding behind the “Mold Disclosure Agreement.”
In Ford v. Cournale (1973) 36 Cal.App.3d 172 (Ford), a purchaser of an apartment complex sued a real estate broker and salesman for fraud and misrepresentation for “puffing” the vacancy rate and income produced by the property. The Court of Appeal reversed a judgment on a jury verdict for the defendants because the trial court erred in failing to instruct the jury that the purchaser was not under a duty to make her own investigations regarding the property. “In fact, [the purchaser] did not have the duty of checking out all of the apartments and talking to the manager, as she had been dissuaded from doing so by the defendants at the request of the prior owners [citation].” (Ford, at p. 180.)
Similarly, an “as is” provision in a real property sale contract is ineffective to relieve a seller and his broker of either “‘affirmative’ or ‘negative’ fraud, ” where the seller or his agent “misrepresents the then condition of the property [citation] or fails to disclose the true facts of its condition not within the buyer’s reach and affecting the value or desirability of the property....” (Lingsch v. Savage (1963) 213 Cal.App.2d 729, 742.) “In either situation the seller’s conduct has, as it were, infected the buyer’s knowledge of the condition of the property. An ‘as is’ provision may therefore be effective as to a dilapidated stairway but not as to a missing structural member, a subterranean creek in the backyard or an unexploded bomb buried in the basement, all being known to the seller. We feel that such a view of an ‘as is’ provision not only makes good sense but equates sound law with good morals. To enlarge the meaning of such a provision so as to make it operative against all charges of fraud would be to permit the seller to contract against his own fraud contrary to existing law. (Civ. Code, § 1668.)” (Lingsch, supra, at p. 742.)
C. Duty to Inspect and Disclose
Plaintiff alleges Coldwell Banker violated its duty under Civil Code section 2079.
“It is the duty of a real estate broker or salesperson... 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 or is a broker who acts in cooperation with that broker to find and obtain a buyer.” (Civ. Code, § 2079, subd. (a).) “The inspection to be performed pursuant to this article does not include or involve an inspection of areas that are reasonably and normally inaccessible to such an inspection....” (Civ. Code, § 2079.3.)
A visual inspection revealed a musty odor and water stains on the ceiling. It also revealed information from the sellers about a leak from a broken toilet. Given this information, Coldwell Banker, rather than informing plaintiff of a potential serious toxic mold problem, attempted to explain away the problem by telling plaintiff that the sellers would repair the broken toilet and that would “take care of the problem.” Civil Code section 2079 requires that a real estate broker has a duty to “disclose to [the] prospective purchaser all facts materially affecting the value or desirability of the property that an investigation would reveal....” We hold that a broker who is aware of a musty odor, water stains on a ceiling and a broken toilet breaches its duty when it tells a purchaser that the repair of the broken toilet will “take care of the problem.” As stated, it did not take care of the problem, and as a result plaintiff bought a property that she could not live in due to the presence of toxic mold.
That plaintiff smelled the musty odor, saw the water stains on the ceiling, and heard of the broken toilet is of no avail to Coldwell Banker because it fell down on the job when it told plaintiff, in effect, that repairing the broken toilet would take care of everything. It did not.
Accordingly, plaintiff raised a triable issue of fact as to the duty to inspect and disclose cause of action.
D. Breach of Contract
In her breach of contract cause of action, plaintiff alleges she entered into the purchase agreement with the seller and a second agreement with the homeowners association and that the seller and the association breached those agreements. She does not allege any contract existed with Coldwell Banker.
Plaintiff argues on appeal that several contracts exist between her and Coldwell Banker, including the written Mold Disclosure Agreement and several oral agreements made with Coldwell Banker through Kelly. She also argues Coldwell Banker’s misrepresentations and failures of disclosure concerning the musty odor and Kelly’s failure to protect her interests breached the fiduciary duty Coldwell Banker owed to her. Because no such contracts or breaches of a fiduciary duty are alleged in the complaint, the trial court properly summarily adjudicated the breach of contract cause of action in Coldwell Banker’s favor.
In light of our reversing the order granting summary adjudication of all but the cause of action for breach of contract, we need not discuss the remaining issues raised in plaintiff’s appeal in any detail. Plaintiff’s challenges to (1) the denial of her request to amend her complaint, (2) the adequacy of Coldwell Banker’s separate statement, and (3) the adequacy of the trial court’s statement of reasons for its ruling, are without merit. Plaintiff’s appellate briefs do not explain how she could plead a viable cause of action for breach of contract, Coldwell Banker’s separate statement challenges the complaint’s allegations pertaining to breach of contract, and the trial court’s oral tentative ruling stated “[t]here was no contract that flowed between the plaintiff and the moving defendant [Coldwell] Banker.”
III
DISPOSITION
The judgment is reversed. The order granting summary adjudication is affirmed as to the fifth cause of action and reversed as to the first, second, and third causes of action. Plaintiff is awarded costs on appeal.
MALLANO, P. J.
I concur: JOHNSON, J.
CHANEY, J., Dissenting.
In my view, no triable material issue exists as to whether Coldwell Banker caused plaintiff’s failure to discover the mold infestation in a timely manner. On the contrary, Coldwell Banker and others advised plaintiff several times to inspect for mold. At the time, plaintiff said she understood and accepted the advice. Now she admits she ignored it.
On January 13, the purchase agreement advised plaintiff that “[t]he only way to accurately determine the condition of the Property is through an inspection by an appropriate professional.” The agreement notified plaintiff that Coldwell Banker did “not have expertise in all areas, ” “[d]oes not guarantee the condition of the Property, ” and could not advise her on environmental conditions, hazardous substances, or structural conditions. It notified plaintiff that Coldwell Banker did “not guarantee the performance, adequacy or completeness of... repairs... made by the Seller....” Plaintiff was “STRONGLY ADVISED TO INVESTIGATE THE CONDITION AND SUITABILITY OF ALL ASPECTS OF THE PROPERTY.” The inspection advisory provided, “IF YOU DO NOT DO SO, YOU ARE ACTING AGAINST THE ADVICE OF THE BROKERS. [¶]... YOU ARE ADVISED TO CONDUCT INVESTIGATIONS OF THE ENTIRE PROPERTY, INCLUDING, BUT NOT LIMITED TO THE FOLLOWING: [¶]... [¶] 9. ENVIRONMENTAL HAZARDS:... including... mold (airborne, toxic or otherwise)....”
Plaintiff acknowledged that she read, understood, and accepted the advice.
On January 29, Coldwell Banker advised plaintiff in a “Mold Disclosure Agreement” “that every Buyer /Lessee should have a mold test performed by an environmental professional as either a separate test or an add-on to their whole house inspection, ” “especially” if any inspection revealed evidence of past or present water intrusion. Coldwell Banker advised that “[n]ot all molds are detectable by a visual inspection by a Broker or even a professional whole house inspector. It is also possible that the property could have a hidden mold problem that the Seller/Lessor is not aware of. The only way to provide a reasonable assurance that the property does not have a mold or other health hazard problem is to retain the services of an environmental expert who will conduct tests.... Broker has not and cannot verify whether or not there is any health hazard at the property.” Coldwell Banker advised that any failure on plaintiff’s part to obtain a mold test “is against the advice of the Broker, ” and “[n]othing any sales agent may say” could change that advice.
Plaintiff represented that by signing the mold disclosure she “agree[d] that [Coldwell Banker] shall have no further responsibility for protecting [her]against the possibility of mold contamination of the property or any resulting injury.” But as plaintiff admits in her declaration, she neither read nor understood the mold disclosure.
On February 4, plaintiff, in a “Receipt for Reports and Contingency Removal, ” accepted the condition of the property and acknowledged she was conclusively deemed to have completed all inspections, reviewed all reports, and assumed any expense for repairs or corrections.
On February 5, plaintiff, in a “Verification of Property Condition, ” accepted the condition of the property, acknowledged that the seller had “completed any repairs” promised, and agreed to hold Coldwell Banker harmless from any liability concerning the condition of the property.
Thus, plaintiff was told several times that Coldwell Banker could not advise her on the presence or absence of mold and that she should have a mold inspection conducted. She agreed three times in writing that Coldwell Banker was not responsible for the condition of the property.
It is true that some time before January 7, 2004, before any of these disclosures were made, Celic and plaintiff noticed a “musty odor” when they toured the house, and Celic told plaintiff she had been “informed by the sellersthat the source of the odor was a broken toilet and that sellers would repair the toilet and take care of the problem.” (Capitalization omitted.) But a broker is not responsible for the accuracy of representations that she passes on from the sellers. (Civ. Code, § 1102.4.)
Plaintiff argues Celic did not merely pass on the sellers’ representation, but offered a personal opinion about mold and a guarantee that fixing the toilet would correct any mold problem, thereby lulling her into believing no mold inspection was necessary. The record does not support the argument. First, Celic did not offer her own opinion, she relayed the sellers’ opinion about the source of the odor and their guarantee that they would fix the toilet and take care of “the problem.” Second, nothing suggests Celic was talking about mold. She and plaintiff had been discussing a musty odor, not mold. Nothing suggests they or anybody who visited the property-plaintiff’s niece, her son, two friends, or her inspector-associated the odor with mold. (The only person in the record to attempt to associate the odor with anything was Shereen Kelly, plaintiff’s niece, who testified that the property “smelled like an older person had lived there.”)
Nothing in the record suggests the mold exuded any odor.
Assuming that Celic’s statement constituted an opinion that the sellers would fix any mold problem, plaintiff was not entitled to rely on her opinion because it was not a representation of fact. “Generally, an actionable misrepresentation must be made as to past or existing facts. ‘[Predictions] as to future events, or statements as to future action by some third party, are deemed opinions, and are not actionable fraud.’ [Citation.]” (Borba v. Thomas (1977) 70 Cal.App.3d 144, 152.) An exception exists where the speaker holds herself out to be specially qualified and the recipient is so situated that she may reasonably rely on the speaker’s superior knowledge. (Ibid.) But here, plaintiff was expressly informed in the purchase agreement and mold disclosure, and herself agreed, that she could not rely on Coldwell Banker’s expertise in environmental matters.
Even if plaintiff could have relied on a statement by Celic that fixing the toilet would correct any mold problem, the record indicates she did not actually rely on it because she was informed one week later, on January 13, 2004, that Coldwell Banker did not guarantee the adequacy of the seller’s repairs. And she was advised two weeks after that that failure to inspect for mold would be against Coldwell Banker’s advice and that nothing any sales agent (i.e., Celic) may say would change that advice. In short, any representation by Celic about mold was disavowed by Coldwell Banker the following week. Plaintiff could not and did not rely on it.
Finally, even if Celic made a misrepresentation about mold upon which plaintiff reasonably relied to her detriment, plaintiff still could not avoid summary judgment on that ground because she alleged no such misrepresentation in her complaint.
“A sufficient motion cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings; counterdeclarations are no substitute for amended pleadings.” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065.) If they were, every plaintiff could circumvent summary judgment simply by holding material allegations in reserve.
Here, plaintiff alleged only water intrusion and failures of disclosure regarding improper drainage from exterior walls, lack of a moisture barrier along the exterior walls and windows, and water intrusion. The complaint mentioned nothing about a musty order or any misrepresentation by Celic. The first time plaintiff blamed Celic for the mold problem was in her opposition to Caldwell Banker’s motion for summary adjudication. To permit plaintiff to avoid summary judgment by belatedly offering unalleged facts would incapacitate the summary judgment process and be unfair.
In sum, plaintiff seeks to avoid summary adjudication on the basis of an unalleged statement that Coldwell Banker did not make and on which she could not and did not rely. The trial court properly concluded no triable material issue exists as to whether Coldwell Banker misrepresented or failed to disclose facts relating to mold or whether plaintiff relied on such a misrepresentation or nondisclosure to her detriment.
I would therefore affirm.
“(a) Neither the transferor nor any listing or selling agent shall be liable for any error, inaccuracy, or omission of any information delivered pursuant to this article if the error, inaccuracy, or omission was not within the personal knowledge of the transferor or that listing or selling agent, was based on information timely provided by public agencies or by other persons providing information as specified in subdivision (c) that is required to be disclosed pursuant to this article, and ordinary care was exercised in obtaining and transmitting it.
“(b) The delivery of any information required to be disclosed by this article to a prospective transferee by a public agency or other person providing information required to be disclosed pursuant to this article shall be deemed to comply with the requirements of this article and shall relieve the transferor or any listing or selling agent of any further duty under this article with respect to that item of information.
“(c) The delivery of a report or opinion prepared by a licensed engineer, land surveyor, geologist, structural pest control operator, contractor, or other expert, dealing with matters within the scope of the professional’s license or expertise, shall be sufficient compliance for application of the exemption provided by subdivision (a) if the information is provided to the prospective transferee pursuant to a request therefor, whether written or oral. In responding to such a request, an expert may indicate, in writing, an understanding that the information provided will be used in fulfilling the requirements of Section 1102.6 and, if so, shall indicate the required disclosures, or parts thereof, to which the information being furnished is applicable. Where such a statement is furnished, the expert shall not be responsible for any items of information, or parts thereof, other than those expressly set forth in the statement.”