Petersen v. Century Cromwell Communities

Filed 8/14/06 Petersen v. Century Cromwell Communities CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Douglas P. Miller, Judge. Affirmed.

Michael Petersen, in pro. per., for Plaintiff and Appellant.

Best Best & Krieger, Victor L. Wolf and Jerry R. Dagrella for Defendants and respondents.

Plaintiff Michael Petersen (Petersen) appeals from a judgment entered in favor of defendants Century Crowell Communities, Century Preferred Mortgage, Century Vintage Homes, Century Homes Communities, and Shadow Hills LLC (Defendants) after their motion for judgment on the pleadings was granted without leave to amend. Petersen claims that the trial court erred in granting the motion as to his cause of action for unfair business practices under Business and Professions Code section 17200 et seq.^[1] because such claims are not appropriate for summary proceedings, because the trial court misinterpreted his complaint, and because he properly alleged an unfair business practice. We affirm.

Facts and Procedural History

On April 14, 2005, Petersen and other plaintiffs not party to this appeal, filed a second amended complaint against Defendants and others also not party to this appeal asserting six causes of action: (1) unfair competition, (2) unfair business practices, (3) false and fraudulent advertising, (4) restraint of trade, (5) racketeering and (6) breach of fiduciary duty. The sole issue raised by the appeal is whether the trial court erred in granting Defendants' motion for judgment on the pleadings as to the second cause of action for unfair business practices. Therefore, we will limit our discussion to that claim.

Petersen alleges that Defendants are in the business of constructing residences in the Coachella Valley area of Riverside County. Because of a dearth of new construction to meet the demand, Petersen was required to put his name on a waiting list to purchase a home in one of Defendants' developments. At the time, Defendants told him that he would have to qualify to be placed on the list and therefore they ran a credit check on Petersen. He was also told that only pre-approvals from Century Preferred Mortgage would be considered as potential purchasers. On August 3, 2004, Petersen was notified that a reservation had become available due to a cancellation and he immediately placed a deposit to confirm his reservation. The agent at Defendants' sales office informed Petersen that she would be working as both the buyer and seller's agent in the transaction. She further informed him that if he did not use Century Preferred Mortgage the price of his home would increase by $10,000, the reservation deposit would double from $5,000 to $10,000, and his deposit for his optional upgrades would be 100 percent instead of the customary 25 to 30 percent. In addition, he would be required to purchase any upgrades to his home through Defendants' design specialists who charged a 30 to 100 percent premium over market rates for the options. Finally Petersen was told that his sales contract would require that he not rent or resell the home for one year subject to a $50,000 liquidated damages clause.

Another prospective home buyer, who took a reservation on a house that already had options ordered prior to the former prospective buyer's cancellation, was informed that she had to accept and pay for the options as selected if she desired the residence, even though construction had not yet commenced. That buyer contacted Petersen to seek his intervention with the unresponsive sales staff to learn why the options could not be cancelled. On September 19, 2004, Petersen contacted Defendants' sales staff for that purpose and was treated so rudely that he asked for a supervisor. The salesperson then warned that he should be careful when speaking to the supervisor since the prospective buyer only had a reservation for the home. Petersen responded that he was going to seek legal counsel on the matter of the unwanted options. Within days of this conversation Defendants cancelled the reservations of both Petersen and the person he sought to aid. The sales office informed Petersen that the reservations had been cancelled because they did not like the tone of his voice during the September 19 conversation. He was also informed that the reservations were cancelled because Petersen threatened to ask an attorney about the options issue.

Petersen alleged that the cancellation of his reservation based upon the tone of his voice and his desire to consult an attorney regarding the options issue is â€