Filed 6/23/26 Carroll v. Ross CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
DANIEL J. CARROLL et al., B346044
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 24AHCV00196)
v.
LLOYD ROSS et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Jared D. Moses, Judge. Affirmed.
Jackson Tidus, Kathryn M. Casey and Charles M. Clark for Plaintiffs
and Appellants.
Manning & Kass, Ellrod, Ramirez, Trester, Ari L. Markow and Mark R.
Wilson for Defendants and Respondents.
INTRODUCTION
This appeal arises from a negligence action involving the sale of real
property. The buyers sued the sellers’ agents for failing to disclose the city’s
parking restrictions in connection with the sale of the residential property.
The trial court sustained a demurrer to the operative complaint on the basis
that the sellers’ agents owed no duty to disclose. We affirm the judgment.
FACTUAL BACKGROUND1
On May 15, 2023, Daniel J. Carroll and Jana D. Law (the buyers)
purchased real property located at 2190 Lorain Road in San Marino. Lloyd
Ross and Douglas Elliman (the sellers’ agents) represented the sellers.
Two San Marino city ordinances prohibited street parking between 2:00
a.m. and 5:00 a.m. (San Marino Ord. Nos. 15.07.23, 15.07.27.) Another city
ordinance prohibited parking in a driveway or front yard parking space for
more than 48 consecutive hours. (San Marino Ord. No. 23.02.03.) San
Marino published an information guide (Information Guide) for new home
buyers, which contained information about city ordinances, including the
relevant parking restrictions.2 San Marino also published a document titled,
“Required Notification Form” (Notification Form), which instructed a
property seller or the seller’s listing agent to certify that they provided a copy
of the Information Guide to a prospective buyer. The Notification Form
states, in pertinent part: “The purpose of this requirement is that many of
our newer residents are unaware of a number of special ordinances, some of
1 Because this matter comes to us at the demurrer stage, we accept as
true the well-pleaded factual allegations in the operative complaint but not
any of its asserted conclusions of law. (One Technologies, LLC v. Franchise
Tax Bd. (2023) 96 Cal.App.5th 748, 759.)
2 The Information Guide is not included in the appellate record.
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them unique to San Marino, which have served to preserve our residential
qualities.” “By requiring the listing agent to deliver a copy of [the]
Information Guide ... to the new buyer, the City of San Marino hopes to foster
communication between the new buyer and the City by assisting in the
disclosure process.”
The buyers were not provided with either the Information Guide or the
Notification Form.3 The buyers first discovered San Marino’s parking
ordinances after close of escrow, when they received parking tickets. The
buyers subsequently sold the property at a loss, and they claim they would
not have bought the property had they been provided with the requisite
notice about the city’s parking restrictions.
PROCEDURAL HISTORY
The buyers filed suit in January 2024. The operative first amended
complaint, filed eight months later, alleged two causes of action against the
sellers’ agents: professional negligence and negligence. The sellers’ agents
demurred. The trial court sustained the demurrer, without leave to amend.
The court found the sellers’ agents did not owe the buyers “a legal duty to
disclose the City of San Marino’s parking regulations or the [I]nformation
[G]uide, as these [are] matters of public record accessible to [the buyers]
through reasonable diligence. In addition, the ... ‘Notification Form’ does not
impose a legal duty on [the sellers’ agents] to disclose information that [the
buyers] could have independently discovered.” The court concluded,
3 On appeal, the buyers argue that the sellers’ agents “provided an
incomplete Residential Compliance Certificate without the required
disclosures.” But the buyers made no such allegation in the operative
complaint.
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“[f]urther amendment cannot create a legal duty where none exists under the
facts and law.”4
The trial court entered judgment in favor of the sellers’ agents, and this
appeal ensued.
DISCUSSION
I. Standard of Review
“On review from an order sustaining a demurrer, ‘we examine the
complaint de novo to determine whether it alleges facts sufficient to state a
cause of action under any legal theory, such facts being assumed true for this
purpose.’ ” (Committee for Green Foothills v. Santa Clara County Bd. of
Supervisors (2010) 48 Cal.4th 32, 42.) “We may also consider matters that
have been judicially noticed.” (Ibid.)
“A demurrer tests the legal sufficiency of the challenged pleading.”
(Brown v. Los Angeles Unified School Dist. (2021) 60 Cal.App.5th 1092, 1103
(Brown).) “We assume the truth of the properly pleaded factual allegations,
facts that reasonably can be inferred from those expressly pleaded, and
matters of which judicial notice has been taken.” (Fremont Indemnity Co. v.
Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.) “The question of a
plaintiff’s ability to prove the allegations, or the possible difficulty in making
such proof, does not concern the reviewing court and plaintiffs need only
plead facts showing that they may be entitled to some relief.” (Brown, supra,
at p. 1103.)
“When a demurrer is sustained without leave to amend, we decide
whether there is a reasonable possibility that the defect can be cured by
4 The appellate record does not include the reporter’s transcript of the
hearing on the demurrer.
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amendment.” (Adams v. Bank of America, N.A. (2020) 51 Cal.App.5th 666,
670.) “If we find that an amendment could cure the defect, we conclude that
the trial court abused its discretion and we reverse; if not, no abuse of
discretion has occurred.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th
1074, 1081 (Schifando).) “[T]he plaintiff has the burden of demonstrating
that ‘there is a reasonable possibility the plaintiff could cure the defect with
an amendment.’ ” (Foundation for Taxpayer & Consumer Rights v. Nextel
Communications, Inc. (2006) 143 Cal.App.4th 131, 135.)
II. Duty to Disclose
This dispute centers around whether the sellers’ agents owed a duty to
disclose the city’s parking restrictions to the buyers.
In Easton v. Strassburger (1984) 152 Cal.App.3d 90, 99, 100 (Easton),
the court first articulated the duty of the seller’s agent to both inspect the
property and disclose facts to potential purchasers. “[T]he duty of a real
estate [agent], representing the seller, to disclose facts ... includes the
affirmative duty to conduct a reasonably competent and diligent inspection of
the residential property listed for sale and to disclose to prospective
purchasers all facts materially affecting the value or desirability of the
property that such an investigation would reveal.” (Id. at p. 102, fn. omitted;
Robinson v. Grossman (1997) 57 Cal.App.4th 634, 640.) A year later, the
Legislature codified and defined that duty by enacting Civil Code section
2079.5 (See Stats. 1985, ch. 223, § 4, p. 1222; Field v. Century 21 Klowden–
Forness Realty (1998) 63 Cal.App.4th 18, 24 (Field).)
5 All further statutory references are to the Civil Code unless otherwise
stated.
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Section 2079 states that a seller’s agent has a duty “to a prospective
buyer 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 buyer all facts materially affecting the value or desirability
of the property that an investigation would reveal.” (§ 2079, subd. (a).)
Accordingly, “[s]ection 2079 statutorily limits the duty of inspection
recognized in Easton to one requiring only a visual inspection.” (Field, supra,
63 Cal.App.4th at p. 24; see Assilzadeh v. Cal. Fed. Bank (2000) 82
Cal.App.4th 399, 413 [“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’ ”].) In
addition, the statutory scheme expressly states that a seller’s agent has no
obligation to a buyer to investigate public records or permits pertaining to
title or use of the property. (Field, supra, at p. 24.) Specifically, section
2079.3 states the inspection required under section 2079 “does not include or
involve an inspection of areas that are reasonably and normally inaccessible
to this type of 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.” (Italics added.)
Here, we conclude that the sellers’ agents were not required to research
the city’s ordinances regarding parking restrictions. While the sellers’ agents
had a duty to disclose material facts “an investigation would reveal,” there
were no allegations in the operative complaint that visual inspections of the
property alone revealed or would have revealed these parking restrictions
without further research into the city’s ordinances. (§ 2079, subd. (a).) In
fact, quite the opposite. In the operative complaint, the buyers alleged that
“[t]here [were] no street signs by the Property at issue that contained the
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language of City Regulations 15.07.23, 15.07.27, or 23.02.03.” Thus, no
reasonably competent and diligent visual investigation of the subject
property would have revealed the city’s parking restrictions. (See Peake v.
Underwood (2014) 227 Cal.App.4th 428, 442.)6 The buyers failed to supply
any legal support for their assertion that the Notification Form, which
appears to be a form generated by the city, imposes a legally binding duty on
a seller’s agent to provide the Information Guide. Accordingly, the buyers
have failed to establish that the sellers’ agents owed them a duty of
disclosure.
III. Leave to Amend
The buyers made no attempt to show the trial court how they intended
to amend the first amended complaint. For the first time in their reply brief
on appeal, the buyers set forth various allegations they would make in an
amended complaint. “Points raised in the reply brief for the first time will
not be considered, unless good reason is shown for failure to present them
before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3; see
Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289,
1295 [“we will not address arguments raised for the first time in the reply
brief ... because defendants lacked the opportunity to respond”].) We
6 On appeal, the buyers rely on the following cases: Manderville v.
PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498, Vega v, Jones, Day,
Reavis & Pogue (2004) 121 Cal.App.4th 282, 287, and Furla v. Jon Douglas
Co. (1998) 65 Cal.App.4th 1069, 1072. These cases are of no help to the
buyers as they involve either negligent or intentional misrepresentation
claims, or fraud claims. Here, the operative complaint only asserts
negligence causes of action. Cases do not stand for propositions not
considered. (People v. Harris (1989) 47 Cal.3d 1047, 1071; B.B. v. County of
Los Angeles (2020) 10 Cal.5th 1, 11.)
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conclude the buyers have failed to show a reasonable possibility of curing the
complaint’s defects. (Schifando, supra, 31 Cal.4th at p. 1081.)
DISPOSITION
The judgment is affirmed. The defendants Lloyd Ross and Douglas
Elliman are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, P. J.
WE CONCUR:
MORI, J.
COGLIATI, J.*
*Judge of the Santa Cruz Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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