Kambon v. T-Mobile
Filed 10/17/13 Kambon v. T-Mobile USA CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
AKINSANYA KAMBON et al.,
Plaintiffs and Appellants,
v.
T-MOBILE USA, INC.,
Defendant and Respondent.
B246058
(Los Angeles
County
Super. Ct.
No. NC057653)
APPEAL from
a judgment of the Superior Court
of
County, Joseph E. DiLoreto, Judge. Affirmed.
Charles
Sutton for Plaintiffs and Appellants.
Willenken
Wilson Loh & Delgado, Paul J. Loh and Carlos A. Singer, for Defendant and
Respondent.
I. INTRODUCTION
Plaintiffs, Akinsanya Kambon, Tama-sha Kambon,
The Gallery Kambon and Pan African Art, appeal from a demurrer dismissal. The trial court sustained the demurrer to the
fourth cause of action of defendant, T-Mobile USA, Inc. without leave to
amend. Plaintiffs argue: it was error to sustain the demurrer because
they stated valid causes of action for negligent misrepresentation and negligence;
defendant’s statements were not mere opinions about the future because they
concern technical matters within its expertise; and the trial court abused its
discretion in denying their request for leave to amend the complaint. We affirm the
II. BACKGROUND
A.
Complaint
On May 24, 2012, plaintiffs filed a
complaint against: R.W.S & P, Inc.
doing business as Royal Roofing Company; Reginald Wills; Steven Elliot Pinkus;
defendant; American Integrated Resources, Inc.; and American Contractors Indemnity
Company, as surety for Royal Roofing Company.
The Kambons are a married couple.
They own The Gallery Kambon, a for-profit business, and Pan African Art,
a non-profit entity. Mr. Kambon is an
artist who creates original paintings, drawings, pottery and sculptures. Ms. Kambon manages her husband’s artwork
and serves as executive director of the gallery. They own a building located in Long Beach, which is used as a
residence, a gallery and a community center.
In March 2009, defendant’s representatives, Dominique
Garcia and Micah Sullivan, contacted the Kambons. They sought permission to install cellular
transmission towers on the roof of plaintiffs’ building. To ensure the structure could support the
cellular transmission towers, defendant with plaintiffs’ consent, contacted
Royal Roofing Company to arrange for a roof inspection. The complaint alleges: “On April 10, 2010, [defendant] contracted
with Royal Roofing to conduct further inspection and make saw cuts that allowed
samples of the roof to be made to determine suitability for [defendant’s]
towers. [Defendant] also advised
[plaintiffs] that Royal Roofing should be hired to do any work required to make
the roof suitable for installation of the towers.â€
On September 22, 2010, Mr. Wills from Royal
Roofing Company contacted plaintiffs to arrange the roof inspection. An inspector discovered asbestos during the
roof inspection. Mr. Wills and defendant
recommended plaintiffs use American Integrated Resources, Inc. for asbestos
abatement. On September 16, 2010, Tim Christopoulos, the project manager for American
Integrated Resources, Inc., submitted an asbestos abatement estimate to Bill
Schick of Royal Roofing Company. On September 23, 2010, Mr. Wills provided plaintiffs with a contract for
roof repair and re-roofing of plaintiffs’ building. The contract stated the asbestos removal cost
was $1,200. The re-roofing and roof
repair were an additional $17,000. On September 24, 2010, American Integrated Resources, Inc. sent defendant
an invoice of $1,200 for asbestos removal.
Plaintiffs signed the Royal Roofing Company contract on October 4, 2010.
On October 4, 2010, Mr. Wills and Mr. Pinkus
from Royal Roofing Company advised plaintiffs roofing could not commence that
day because of a rainstorm forecast.
Plaintiffs asked Mr. Wills whether a water leak would damage the
building’s interior. Mr. Wills
allegedly assured plaintiffs the building’s exterior roof would be protected
and its interior would be fine.
Early on the morning of October
6, 2010, the interior roof collapsed during the rainstorm. Rainwater and debris poured through the roof
and destroyed Mr. Kambon’s original artwork.
In addition, rainwater and debris damaged furniture, fixtures and the
gallery’s interior ceiling, walls and floor.
At 1:39 a.m. that day, plaintiffs contacted Royal Roofing Company
to complain about the damage. At 7:30
a.m.,
a crew from Royal Roofing Company arrived at the building to stop the water
leak and photograph the damaged interior.
Over the phone, Mr. Wills on behalf of Royal Roofing Company denied
liability for the damaged interior. In
January 2011, Royal Roofing Company completed exterior re-roofing and roof
repair of the building. But Royal
Roofing Company refused to repair the interior damage despite plaintiffs’
request. In addition, the building roof
continued to leak.
Plaintiffs allege negligence,
negligent misrepresentation and negligent emotional distress infliction
causes of action against Royal Roofing Company, Mr. Wills, and Mr. Pinkus. Plaintiffs also allege a claim for recovery
on a licensed bond against American Contractors Indemnity Company as surety for
Royal Roofing Company. In addition,
plaintiffs allege a negligence cause of action against American Integrated
Resources, Inc. for failing to ensure the roof was properly sealed after
asbestos removal. Finally, plaintiffs
allege a claim for negligent misrepresentation against defendant in their
fourth cause of action. It is this cause
of action that is the subject of the present appeal.
Plaintiffs allege defendant contacted Royal Roofing
Company and recommended the roofer to them for roof inspection and repair in
connection with the installation of the cellular transmission towers. Also, defendant and Royal Roofing Company
recommended American Integrated Resources, Inc. for asbestos removal. The complaint alleges, “[Defendant]
represented to [plaintiffs] that [Royal Roofing Company, Mr. Wills and Mr.
Pincus] would ‘coordinate and handle all aspects of roof preparation and
installation of the . . . cellular transmission towers, and they will do an
excellent job.â€â€™ Plaintiffs allege the
representation was made to induce their agreement to the installation of
cellular transmission towers on their building.
And the complaint alleges, “[Defendant] had no reasonable grounds for
believing the representation was true when made because [Defendant] knew or
should have known that [Royal Roofing Company was] in the business of
re-roofing and roof repair—not the business of asbestos removal.†Defendant knew this because it received an
invoice for asbestos removal directly from American Integrated Resources,
Inc. According to the complaint: plaintiffs reasonably relied upon defendant’s
representations; they had good reason to believe defendant would recommend a
roofing professional capable of making the roof suitable for installation of
cellular transmission towers; in reliance on defendant’s representations,
plaintiffs hired Royal Roofing Company for roof repair; defendant permitted
American Integrated Resources, Inc. access to the roof for asbestos removal;
plaintiffs relied on and expected professional communication between American
Integrated Resources, Inc. and Royal Roofing Company “to assure quality,
performance, and completion of workâ€; and plaintiffs reliance on defendant’s
statements was a substantial factor in causing their harm.
B.
Defendant’s Demurrer
On September
13, 2012, defendant demurred to the complaint’s fourth
cause of action for negligent misrepresentation. Defendant argued plaintiffs failed to state
facts sufficient to constitute a cause of action against it. On October
10, 2012, plaintiffs filed their opposition to the
demurrer. Plaintiffs also requested
leave to amend the complaint. No
transcript or settled statement of the November
2, 2012 hearing has been provided. On November 2, 2012, the trial court
sustained the demurrer without leave to amend. Plaintiffs filed their
2012.
III. DISCUSSION
A.
Standard Of Review
On appeal from an order sustaining demurrer, we
assume all the facts alleged in the complaint are true. (Sheehan
v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998;
Cal.4th 1, 6.) In addition, we consider
judicially noticed matters. (
County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6.) We accept all properly pleaded material facts
but not contentions, deductions or conclusions of fact or law. (Evans
v. City of Berkeley, supra, 38 Cal.4th at p. 6; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) We determine de novo whether the complaint
alleges facts sufficient to state a cause of action under any legal
theory. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors,
supra, 48 Cal.4th at p. 42; McCall v.
PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We read the complaint as a
whole and its parts in their context to give the complaint a reasonable
interpretation. (Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6;
318.) We may affirm an order sustaining
a demurrer only if the complaint fails to state a claim under any possible
legal theory. (Sheehan v. San Francisco 49ers, Ltd., supra, 45 Cal.4th at p. 998;
35 Cal.4th 797, 810.)
When a trial court sustains a demurrer without
leave to amend, we determine whether there is a reasonable possibility the
defect can be cured by amendment. (
41 Cal.4th 859, 865; Zelig v. County of
Los Angeles (2002) 27 Cal.4th 1112, 1126.)
The trial court abuses its discretion if there is reasonable possibility
the plaintiff could cure the defect by amending the complaint. (City
of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865;
California (2005) 35 Cal.4th 311, 320.)
The plaintiff has the burden of proving the defect would be cured by an
amendment. (Campbell v. Regents of University of California, supra, 35 Cal.4th
at p. 320; Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1074, 1081.)
B.
Negligent Misrepresentation
For a negligent
misrepresentation claim, plaintiffs must allege: a misrepresentation of a past or existing
material fact; the misrepresentation was made without reasonable ground for
believing it to be true; the misrepresentation was made with the intent to
induce another’s reliance on the fact misrepresented; they justifiably relied
on the misrepresentation; and they suffered damage. (Ragland
v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 196;
Partners, LLC (2007) 158 Cal.App.4th 226, 243.) Negligent misrepresentation does not require
an intent to defraud. (
California (2009) 45 Cal.4th 1244, 1255; Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 892.)
assert they have sufficiently alleged an actionable negligent misrepresentation
by defendant. Plaintiffs rely on the
following allegations: defendant’s
statement that Royal Roofing Company, Mr. Wills and Mr. Pinkus would
“coordinate and handle all aspects of roof preparation and installation of the
cellular transmission towersâ€; the statement Royal Roofing Company, Mr. Wills
and Mr. Pinkus would do an excellent job; defendant had no reasonable grounds
for believing the representation was true when made; defendant knew or should
have known Royal Roofing, Mr. Wills and Mr. Pinkus were in the business of
re-roofing and roofing repair; and Royal
Roofing, Mr. Wills and Mr. Pinkus were not in the business of asbestos removal.
The foregoing
constitutes a non-actionable opinion. A
representation is an opinion if it expresses a belief without certainty as to
the existence of a fact. Or a
representation is an opinion if it is a judgment as to quality, value,
authenticity or other similar matters. (
§ 538A.) Generally, to be actionable, a
misrepresentation must be of an existing fact, not an opinion or prediction of
future events. (Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769;
Cal.App.4th at p. 835 [misrepresentation claim cannot be based on expression of
opinion]; Richard P. v. Vista Del Mar
Child Care Service (1980) 106 Cal.App.3d 860, 865 [“[P]redictions as to
future events are deemed expression of opinions, and thus not
actionableâ€].)
Plaintiffs argue
defendant’s statements are actionable because they concern a technical area of expertise--the installation
of cellular towers. An opinion may be
actionable where a party holds itself out to be specially qualified concerning
a subject. (Brakke v. Economic Concepts, Inc., supra, 213 Cal.App.4th at p.
769; Neu-Visions Sports, Inc. v.
Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 308.) Here, there is no allegation defendant ever
held itself out to be specifically qualified on the subject of roofing. The opinion that Royal Roofing Company would
do “an excellent job†in coordinating
and handling roof preparation and transmission tower installation was not
stated as an existing fact. Because
defendant’s representation is not actionable, plaintiffs fail to state a
negligent misrepresentation claim.
C. Negligence
The complaint does not allege a negligence claim
against defendant. But plaintiffs argue
they pleaded the elements for negligence.
To assert a negligence claim, plaintiffs must allege: defendant owed a legal duty to them;
defendant breached that duty; and that breach proximately caused injury.
(Conroy v. Regents of University
of California, supra, 45 Cal.4th at p. 1250; John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188.) Plaintiffs allege they entered into a lease
with defendant on August 2010 but no facts are alleged concerning the parties’
duties under the lease. Moreover, the
complaint does not allege facts showing defendant owed a duty of care to
plaintiffs concerning work done by third parties. It is unforeseeable that defendant’s limited
representations regarding the roofing company’s qualifications and workmanship
would result in plaintiffs’ injuries. (
(1997) 14 Cal.4th 1066, 1078; Lease
& Rental Management Corp. v. Arrowhead Central Credit Union (2005) 126
Cal.App.4th 1052, 1061.) Plaintiffs have
not pled all the elements for a negligence claim against defendant.
D. Denial Of Leave To Amend Complaint
Plaintiffs contend the trial court abused its
discretion by denying their request to amend the complaint. To begin with, leave to amend involves
an exercise of discretion. (
46 Cal.4th 501, 522; Aubry v. Tri-
962, 970-971.) Plaintiffs have failed to
provide a transcript or settled statement of the hearing where the trial court
exercised discretion. In the absence of
a transcript or settled statement, we cannot determine the trial court abused
its discretion. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295;
102; Rossiter v. Benoit (1979) 88
Cal.App.3d 706, 713-714.)
Further, plaintiffs sought to add the following
allegations: “[Defendant] represented to
the Kambons and Pan African Art during negotiations regarding the placement of
the cell tower on the subject property that, ‘You don’t have to worry about
it. John Aranas is going to take care of
everything.’ This statement referred to
John Aranas, Construction Manager for T-Mobile LA/OC Construction/Development
who was onsite various times during the events described in the Complaint. Concerning Royal Roofing, [defendant] stated
that it would be best if the Kambons use Royal Roofing because otherwise they
might get a fly by night company. After
finding out about the rain damage described in the Complaint, John Aranas of
[defendant] remarked that he ‘should have been on top of it’ about getting
Royal Roofing back on the roof after American Integrated Resources, Inc. had
finished working.†But Mr. Aranas’
alleged admission of responsibility is inconsistent with the allegations in the
complaint. The complaint alleges
defendant stated Royal Roofing Company would “coordinate and handle all aspects
of roof preparation and installation of the cellular transmission towers†and
do an excellent job. A plaintiff may not
amend by adding an allegation that contradicts an admission in the original
pleading. (Astenius v. State (2005) 126 Cal.App.4th 472, 477 ;
Hygienists’ Assn. (1990) 222 Cal.App.3d 49, 53, fn.1 [“[A] plaintiff may
not discard factual allegations of a prior complaint, or avoid them by
contradictory averments, in a superseding, amended pleadingâ€];
Cal.App.4th 394, 405, fn. 6.) Plaintiffs
have failed to prove an abuse of discretion occurred. Further, the alleged admission adds nothing
in terms of whether defendant offered an actionable opinion.
IV. DISPOSITION
The judgment is affirmed. Defendant, T-Mobile, USA, Inc., shall recover
its appeal costs from plaintiffs, Akinsanya Kambon, Tama-sha Kambon, The
Gallery Kambon and Pan African Art.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
I concur:
KRIEGLER, J.
>
MOSK, J., Concurring,
With
respect to the negligent misrepresentation claim, I concur because plaintiffs
did not allege intent to induce reliance.
MOSK,
J.
