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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MINUTE ORDER
C. Bonhage, et alvs H. Rawson Hearing Start Time: 9:00 AM
2014-1-CV-271558 Hearing Type: Hearing: Demurrer
Date of Hearing: 05/31/2018 Comments:
Heard By: Zayner, Theodore C Location: Department 6
Courtroom Reporter: -
No Record Transcribed Courtroom Clerk: Maggie Castellon
Court Interpreter:
Court Investigator:
Parties Present: Future Hearings:
Exhibits:
-
No appeara nce. Tentative ruling adopted.
Factual a nd Procedu ral Backgrou nd
This case brought by plaintiffs Christopher Bonhage (
Bonhage )
and Brittany Collins (
Collins) (collectively,
Plaintiffs )
against Hiral Hansapriya Rawson( Rawson ), an individual and trustee ofThe Hiral Ha nsapriya
Rawson Living Trust, U/A Dated November 1, 2010, Murahari Amarnath (
Amarnath ), Eunice Foster (
Foster ),
Stanford Real Estate Networks, LLC dba Amar Realtor, and Silicon Valley Real Estate Corporation, dba Keller
Williams Palo Alto, (collectively, Defenda nts )
arises from Plaintiffs attempt to rent an apartment from
Rawson.
According to the fourth amended complaint ( 4AC ), Rawson is the owner of a singIe-family home located at
3050 Manda Drive 'In San Jose ( Property ). Plaintiffs along with prospective housemates, Jessica McCa rgar(
McCa rgar ) and Arielle Aspacio, desired to rent the Property which was posted for rent on Craigslistcom as
becoming available for rent on September 15, 2014. Bonhage and McCargar each submitted a rental
application, credit report, and paystub to Foster, an assista nt to Rawson s broker, Amarnath. Plaintiffs are an
unmarried couple and Bonhage s application identified Collins as his domestic partner.
After Bonhage submitted his application, Collins noticed the Property had been re-Iisted on Craigslist.com and
inquired of Foster and Rawson why they had posted a new listing.Rawson told Bonhage that he ancl his
prospective housemates were the strongest ca ndidates, but that she would continue looking for more
applicants. Rawson explicitly told Bonhage that she preferred to rent the Property to a family. Bonhage and
McCargar s applications were the only applications she received. Rawson further admitted that Plaintiffs were
financially stable, but she was unable to make a decision at this time.
Subsequently, Plaintiffssent Rawson a letterthrough their attorney, which asserted discrimination. Rawson s
attorney replied with a proposed lease. At about this time McCargar stated she had decided not to rent the
Property. Plaintiffs refused to consider the proposed lease because of disagreement with its terms and
because it did not compensate them for the rent that would have been paid by their prospective housemates
had Rawson initially rented to Plaintiffs.
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In September 2017, Plaintiffsfiled the operative 4AC, alleging the following causes of action against Rawson:
(1) invasion of privacy under the California Constitution, article l, section 1; (2) Fair Employment and Housing
Act (FEHA) housing discrimination under Government Code section 12955, subdivision (a); (3) interference
with fair housing rights under Government Code section 12995.7; (4) retaliation under under Government
Code section 12955, subdivision (5)
(f); making discriminatory statements under Government Code section
12955, subdivision (6)
(c),- discrimination by a person whose business involves real estate tra nsactions under
Government Code section 12955, subdivision (i); (7) aiding and abetting discrimination under Government
Code section 12955, subdivision (g);(8) Unruh Act housing discrimination under CivilCode section 51; (9)
unlawful business practices under Business and Professions Code section 17200; (10) negligence; and (11)
vica rious liability.
Currently before the Cou rt is Rawson s demurrer to the firstand tenth causes of action. Plaintiffs filedan
opposition, and Rawson filed a reply.
Discussion
|.Meet and Confer
As a preliminary matter, Rawson did not file ameet and confer declaration. Prior to filing a demurrer, the
moving party must meet and confer with the party who filed the challenged pleading to determine whether
an agreement can be reached that would resolve the objections to the pleading. (Code Civ. Proc., 430.41.) If
an agreement cannot be reached and a demurrer is filed, the demurring party must file a declaration stating
the means by which he or she met ancl conferred with the party who filed the pleading. (Code Civ. Proc.,
430.41, subd. (a)(3).)
Here, Rawson did not file a meet and confer decla ration with her demurrer. As such, the Cou rt cannot
ascertain whether Rawson attempted to meet and confer or did not engage in any such efforts. In either case,
she failed to file the required declaration. Thus, Rawson did not comply with Code of Civil Procedure section
430.41. With that said, an insufficient meet and confer process is not a basis for overruling a demurrer. (Code
Civ. Proc., 430.41, subd. (a)(4).) Accordingly, the Court wi|| consider the merits of the motion despite this
procedural defect. Rawson is admonished to comply with Code of Civil Procedure section 430.41 in the
futu re.
||.Request for Judicial Notice
In support of her reply, Rawson asks the Cou rt to ta ke judicial notice of the following three facts:
1. At a||releva nt times, Defendant RAWSON was not the only property owner offering a three-bedroom,
single family house for rent in the City of San Jose, California;
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2. At allreleva nt times, other property owners the City of San Jose, California, were willing to rent three-
'In
bedroom, single family homes to groups of unrelated friends, and were doing so; and
3. At allreleva nt times, Defendant RAWSON lacked the power to prevent Plaintiffs and their friends Jessica
McCargar ancl ArielleAspacio from renting some other house together from some other Iandlord.
(RJN, p.2:1-8.)
Rawson arguesjudicial notice is proper based upon Evidence Code section 452, subdivision (f), which permits
judicial notice of facts and propositions that are so universally known that they cannot reasonably be the
subject of dispute. (Evid. Code, 452, subd. (f).) She also seeksjud'lc'lalnotice under subdivisions (g) and (h) of
that section, which allow a court to take judicial notice of [f]acts and propositions that are of such common
knowledge within the territorial jurisdiction of the cou rt that they cannot reasonably be the subject of
dispute (Evid. Code, 452, subd. (g)) and [flacts and propositions that are not reasonably subject to dispute
ancl are capable of immediate ancl accurate determination by resort to sources of reasonably indisputable
accuracy (Evid. Code, 452, subd. (h)).
Judicial notice is proper only where the facts at issue are indisputably true. (Mack v. State Bd. of Ed. (1964)
224 Cal.App.2d 370, 373.) The type of information Rawson asks the Cou rt to take judicial notice of is not the
type that have been noticed under these subdivisions. (See People v. Kutz (1960) 187 Cal.App.2d 431, 434
[takingjudicial notice of a major street]; Gould v. Maryla nd Sou nd Industries, Inc. (1995) 31 Cal.App.4th 1137,
1145 [describing information judicially noticeable under Evidence Code, 452, subd. (h)],'Barreiro v. State Bar
(1970) 2 Ca|.3d 912, 925 [Ifthere isany doubt whatever either as to the fact itselfor as to its being a matter
of common knowledge, evidence should be required ].)
Rawson seeks judicial notice of these facts to support her argu ments that Plaintiffs could have lived
elsewhere and she did not prevent them from doing so. Whether Plaintiffs had other housing options is
beyond the scope of facts alleged in the 4AC, and there is no reason to conclude that there is no dispute
between the parties as to the availability of other housing. Accordingly, the request for judicial notice is
DENIED.
Ill.Failure to Allege Sufficient Facts to State a Claim
Rawson demurs to the firstcause of action for invasion of privacy and the tenth cause of action for negligence
on the grou nd of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., 430.10,
subd. (e).)
A. First Cause of Action
1. General Law Rega rding Invasion of Privacy
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The California Constitution creates a right to privacy. (Cal. Const., art.1, 1.) This right can be asserted against
both government and private entities. (Hillv. National Collegiate Athletic Assn. (1994) 7 Ca|.4th 1, 20 (Hill).) In
the seminal case of Hill, the California Supreme Court outlined the test for assessing an invasion of privacy.
(Id.at pp. 39 40.) There, the National Collegiate Athletic Association, required its student athletes to
participate 'In a drug testing program. (Hill, supra, 7 Ca|.4th at p. 12.) As part of this program, athletes
providing a urine sample in the presence of a sa me sex monitor. (lbid.) Student athletes challenged the drug
testing program as a violation of their right to privacy. (Id. at pp. 8-9.) The court held that to bring an invasion
of privacy claim under the California Constitution a plaintiff must establish each of the following: (1) a legally
protected privacy interest,-(2) a reasonable expectation of privacy in the circumstances,- and (3)conduct by
defenda nt constituting a serious invasion of privacy. (Id. at pp. 39 40.)
Legally protected privacy interests meeting the firstelement would be generally of two classes: (1) interests
in precluding the dissemination or misuse of sensitive and confidential information (
informational privacy ),'
ancl (2) interests in making intimate personal decisions or conducting personal activities without observation,
intrusion, or interference (
autonomy privacy ). (Hill,supra, 7 Ca|.4th at p. 35.) Whether a piece of
information or a decision is protected is to be determined from the usual sources of positive law governing
the right to privacy common law development, constitutional development, statutory enactment, and the
ballot arguments accompanying the Privacy Initiative. (Id. at p. 36.)
Turning to the second element, circu mstances, customs, and practices can create or inhibit the reasonable
expectations of privacy. (Hill, supra, 7 Ca|.4th at p. 35.) A reasonable expectation of privacy is an objective
entitlement fou nded on broadly based and widely accepted community norms. (Id. at p. 37.) Whether the
intrusion is voluntary is also a factor to be considered. (lbid.)
With respect to the third element, the cou rt limited the scope of what invasions of privacy would be
actionable. (Hill, supra, 7 Ca|.4th at p. 37.) Actionable invasions of privacy must be sufficiently serious in their
nature, scope, ancl actual or potential impact to constitute an egregious breach of the social norms
underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in
assessing an alleged invasion of privacy. (lbid.)
Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by
the court. (Hill,supra, 7 Ca|.4th at p. 40.) Unlike the first element, whether the second ancl third are met is a
mixed question of law and fact, suitable for adjudication as a matter of law only where undisputed facts
show no reasonable expectation of privacy or an insubstantial impact on privacy interests. (Id.at pp. 39-40.)
The court also stated that an invasion of privacy would not violate the constitutional right to privacy if
justified by a competing interest. (Hill,supra, 7 Ca|.4th at p.37.) The existence of a sufficient cou ntervailing
interest or an alternative cou rse of conduct present threshold questions of law for the cou rt, but the strength
of the interests and the feasibility of other options are mixed questions. (Hill,supra, 7 Ca|.4th at p.40.)
Applying the analysis summarized above, the court considered the autonomy privacy interests in freedom
from observed urination. (Hill, supra, 7 Ca|.4th at p. 41.) The court found all three elements were met. (Id. at
p. 42.) However, the invasion was supported by competing interests and, thus, permissible. (Id. at p. 9.)
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2. Existence of a Legally Protected Privacy Interest
Rawson asserts that there is no legally protected privacy interest at issue here. Rawson contends that the
right to choose with whom to live is not at issue in this case. Rawson acknowledges that several cases have
fou nd an autonomy privacy right in choosing with whom one lives can be asserted against the government,
but states that she is not aware of any decision where autonomy privacy was successfully asserted against a
private entity. (Dem., p. 5:25-26.)
Rawson iscorrect that several cases have fou nd violations of the right to privacy where a government created
a rule limiting the ability of people not related by blood or marriage to live together. (City of Sa nta Barbra v.
Ada mson (1980) 27 Ca|.3d 123 (Ada mson); Coalition Advocating Legal Housing Options v. City of Sa nta
Monica (2001) 88 Cal.App.4th 451 (CALHO).) In Adamson, twelve people unrelated by blood or marriage living
together in a house, challenged a city ordinance prohibiting more than five unrelated people from living
together in a single residence on the ground that it violated their right to privacy. (Adamson, supra, 27 Ca|.3d
at p. 130.) The question presented was whether that right [the right to privacy] comprehends the right to live
with whomever one wishes or, at least, to live in an alternate family with persons not related by blood,
marriage, or adoption. (|bid.) The cou rt ruled in favor of the residents ancl against the city. (Id. at p. 134.)
Subsequent cases have cited Adamson as creating an autonomy interest in choosing who one lives with, a
right which is protected by the constitutional right to privacy. (See Tom v. City ancl County of San Fra ncisco
(2004) 120 Cal.App.4th 674, 680 [there is an autonomy privacy interest in choosing the persons with whom
a person wi|| reside, ancl in excluding others from one's private residence. Such was the case in City of Santa
Barbra v. Adamson .
].)
Rawson cites two cases that purportedly draw a distinction between a governmental ancl a private entity. In
the firstcase, Schmidt v. Su perior Cou rt (1989) 48 Ca|.3d 370, 389 (Schmidt), the California Supreme Cou rt
assessed whether a private mobile home pa rk owner violated the right to privacy by limiting residents to
persons 25 years of age or older. Schmidt states that the facts before the court were distinguishable from
prior cases involving government imposed restrictions limiting with whom someone could live. (Id. at p. 388.)
If read in isolation, this language quote by Rawson could support a distinction between a state-imposed rule
directly limiting an individual s right to live with whom he or she wanted ancl a private Ia ndlord s fiat on the
same topic. (|bid.)However, as Plaintiffs point out, the court noted that it had no occasion to consider
under what circu msta nces, if any, pu rely private action by a property owner or landlord would constitute a
violation of the state constitutional privacy provision. (Id.at p. 390, fn.14.) Thus, Schmidt does not sta nd for
the proposition for which Rawson s cites the case.
The next case Rawson isLeibert v. Tra nsworld Systems, Inc. (1995) 32 Cal.App.4th 1693 (Leibert). |n that case,
a man alleged his employer violated his right to privacy by firing him because of his sexual orientation.
(Leibert, supra, Cal.App.4th at p. 1697.) This case does not aid Rawson because the Leibert court made no
distinction between an invasion of privacy by a government actor ancl a similar invasion by a private actor.
Moreover, the only mention of governmental and private entities in Leibert s discussion of privacy is a
citation to Hill which equates governmental ancl private defendants. (See id. at p.1702.)
In sum, Leibert does not state that the right to privacy cannot be asserted against individuals or against
|andlords.
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Rawson also argues that Plaintiffs could have sought other housing. (Dem., p. 925-7.) This argu ment is
miSpIaced as it is directed at the first element. A lack of alternatives is relevant in assessing the
reasonableness of the privacy interest ancl severity of the intrusion under the second ancl third elements,- but
nothing in Hill suggests the presence or absence of alternatives alters whether a privacy right exists. (See Hill,
supra, 7 Ca|.4th at pp. 37-39.)
Lastly, for the first time in reply, Plaintiffs argue that permitting this case to continue would be [t]o expand
the right of privacy into a right to restrictIa ndlords from making commercially rational choices ancl create an
unbridled right to personal freedom ofthe sort warned of in Hill. (Reply, p. 3:9-15.) Cou rts typically do not
consider points raised for the first time on reply for due process reasons. (In re Tiffa ny Y. (1990)223
Cal.App.3d 298, 302-303 (Tiffa ny); see also Reichardt v. Hoffman (1997) 52 Ca|.App.4th 754, 764 (Reichardt);
REO Broadcasting Consulta nts v. Ma rtin (1999) 69 Ca|.App.4th 489, 500 (REO).) Accordingly, the Cou rt
declines to consider this argu ment.
Therefore, Rawson has not negated the element ofa legally protected privacy interest.
3. Reasonable Expectation of Privacy
Rawson argues that Plaintiffs expectation of privacy was not reasonable because there is no broadly based
ancl widely accepted community norm that individual Ia ndlords cannot choose not to rent to unrelated
tena nts sha ring a single home as a group without violating the applica nts private right to decide with whom
they live. (Dem., p. 9:9-11.) Additionally, she argues that prospective tena nts, such as Plaintiffs, can find
another place to live. Finally, she asserts that Ia ndlords have competing interests that must be bala nced
against Plaintiffs privacy rights. (Dem., p. 9:13-14.)
Whether an expectation of privacy isreasonable under Hill is largely a question of fact. (Hill, supra, 7 Ca|.4th
at p. 37.) Factors that can play a role indetermining ifthe privacy expectation was reasonable are customs,
practices, physical surroundings, ancl whether the plaintiff consented to the invasion. (Ibid.) When applying
the sta nda rd to private actors the degree of competition in the marketplace and the availability of
alternatives such as other Ia ndlords might be releva nt to weighing the reasonableness of privacy claims
asserted. (Id.at pp. 38-39.)
Rawson s argument is,in essence, an assertion that the facts alleged do not show that Plaintiffs expectation
of privacy was reasonable. Rawson to Willard
initially cites v.AT & T Communications of Ca|., Inc. (2012) 204
Ca|.App.4th 53 (Willa rd) for the proposition that Plaintiffs cannot reasonably expect every |a ndlord to agree
to rent to them. In Willard, the court considered the privacy rights of telephone service customers in their
telephone numbers. (Willa rd, supra, 204 Ca|.App.4th at p. 62.) The court held that plaintiffs did not expect
privacy in the circumsta nces, as they knew their listing would be public unless they paid a fee to opt out of
being listed. (Willard, supra, 204 Ca|.App.4th at p. 62, italics added.) Willard is distinguishable in that there is
no similar allegation in the 4AC that Plaintiffs knew that they would not be able to rent a home because they
were not related by blood or marriage, or that Plaintiffs actually expected to be offered a cha nce to rent
every single apartment they applied for. Rather, the 4AC alleges Plaintiffs did not expect to be refused a
rental because they were not related by blood or marriage. Thus, Willard does not aid Rawson.
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In addition, Rawson s argument that Plaintiffs expectation of privacy was unreasonable ispremised upon
unstated assumptions such as the availability of compa rable housing at the time. However, the 4AC does not
include allegations regarding the availability of housing nearby. Additionally, it does not contain allegations
regarding the prevalence of unrelated tenants 'In the area, the norms in the local housing market, or whether
nearby Iandlords would rent to an unrelated group and prospective housemates. Thus, the
like Plaintiffs
allegations in the 4AC lack sufficient detail to support Rawson sargu ment or affirmatively show Plaintiffs
expectation of privacy was unreasonable. Where, as here, the pleadings do not provide enough information
to assess the reasonableness of the privacy right asserted, the California Supreme Court has fou nd it is
improper to sustain a demurrer. (See Sheehan v. San Fra ncisco 49ers, Ltd. (2009) 45 Ca|.4th 992, 996.)
Accordingly, Rawson has not shown that Plaintiffs failed to adequately allege the second element.
4. Seriousness of the Invasion of Privacy
Rawson contends her alleged refusal to rent to Plaintiffs was not sufficiently serious to meet the
requirements of the third element under Hill. Rawson points out that Plaintiffs did not even apply to other
Ia ndlords, and describes the refusal of a single |a ndlord to rent to them as an annoya nce that does not rise
to the level ofan egregious breach of the social norms underlying a privacy right. (Dem., pp. 9:23 to 10:2.) In
essence Rawson contends that the allege privacy intrusion is de minimis, and therefore does not meet the
standa rd under Hill.
Cases applying Hi|| make it clear that the third element is intended simply to screen out intrusions on privacy
that are de minimis or insignifica nt. (Loder v. City of Glendale (1997) 14 Ca|.4th 846, 895, fn.22; American
Academy of Pediatrics v. Lu ngren (1997) 16 Ca|.4th 307, 339.)
However, Plaintiffs allege that the refusal to rent to them had serious impacts, including loss of rental
payments from prospective housemates, emotional distress, humiliation, anxiety, sleep deprivation, and
remaining in an apartment they dislike. These allegations are deemed to be true, however improbable they
may be. [Citation.] (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) Comparing
these allegations to cases finding de minimus invasions of privacy, Plaintiffs have alleged significa ntly greater
harm than those cases. (See Folgelstrom v. Lamps Plus, Inc. (2011) 195 Cal. App.4th 986, 992 [finding
obtaining plaintiffs address and sending promotional materials to be routine commercial practice and not
sufficiently serious]; Williams v. Su perior Cou rt (2017) 3 Ca|.5th 531, 555 [disclosu re of employees contact
information after written opportunity to opt out was not sufficiently serious].) Rawson s argument ignores
the diSparity between the present allegations ancl these cases.
Moreover, at leasttwo cases hold that a limitation on who a person can live with is not de minimis or
insignifica nt.(CALHO, supra, 88 Cal.App.4th at p. 460.) In CALHO, the Cou rt oprpeaI considered whether a
local ordina nce limiting who could live in second units located on residential lots violated property owners
privacy right to live with whomever they wished. (|bid.) The cou rt stated that based upon Adamson, the right
to choose with whom to live is fundamentaI-not so insignificant or de minimis an intrusion. (|bid.) Thus,
under CALHO s interpretation have adequately alleged the third element, even
of Hill, Plaintiffs if they had
not alleged substantial actual harm.
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5. Conclusion
Accordingly, the demurrer to the first cause of action for invasion of privacy 'Is
OVERRULED.
B. Tenth Cause of Action
Rawson demurs to the tenth cause of action for negligence on the basis that Plaintiffshave not adequately
alleged duty or proximate causation. Each of these are necessary elements of a traditional negligence claim.
(Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640,- Ann M. v. PacificPlaza Shopping Center
(1993) 6 Cal.4th 666, 673.)
Plaintiffs tenth cause of action discusses the alleged negligence of Amarnath and Foster. The breaches
allegedly committed by Ama rnath and Foster are: (1) posting an advertisement indicating a preference for a
family; (2) aiding and abetting Rawson s discrimination; ancl (3) giving Rawson bad advice. Rawson is alleged
to be vicariously responsible for the negligence ofAma rnath and Foster, who were acting as her agents.
As a preliminary matter, Plaintiffsdo not show that the posting of an advertisement stating the property was
a delightful home for a family caused their da mages. Rawson argues that the posting of the advertisement
cannot have caused any actual damage to Plaintiffs because they applied in spite of it. Plaintiffs concede in
opposition that the pro-family notice had no actual effect on them. Nevertheless, Rawson s causation
argument only addresses one of several breaches, and so does not negate the claim in its entirety.(See PH ll,
Inc. v. Su perior Court (1995) 33 Cal.App.4th 1680, 1682 [A demurrer does not lie to a portion of a cause of
action. ].)
The remainder of the demurrer is directed towards the issue of duty. [T]he existence of a legal duty is a
question of |aw for the court to determine. (Delgado v. Trax Bar & Grill (2005) 36 Ca|.4th 224, 237.) In
general, each person has a duty to use ordinary care ancl is liable for injuries caused by his failure to exercise
reasonable ca re inthe circumsta nces. (Rowland v. Christian (1968) 69 Ca|.2d 108, 112; Civ.Code, 1714.)
Plaintiffs allege that Amarnath and Foster owed a duty to Bonhage and Collins, who, as prospective tenants,
were pa rties to a contemplated tra nsaction of Rawson renting the Property to them. (FAC, 235, 239.)
Plaintiffs insist case law establishes that depending on the circumstances, a party to a transaction can owe a
duty of ca re to third parties who may be affected by their negligence. (Opp., p.1523-4.) Rawson disagrees,
arguing that no law imposes a duty on realtors to protect prospective tena nts like Plaintiff by preventing their
client from discriminating. Rawson does not cite any law affirmatively stating realtors have no duty to
prOSpective tena nts, but rather distinguishes the case Plaintiffs cite.
Plaintiffs cite to Merrill v.Buck (1962) 58 Ca|.2d 552 (Merrill) as the basis ofAma rnath and Foster s duty. In
Merrill, a tenant felldown a concealed flight of stairs soon after moving into a rented home. (Merrill, supra,
58 Ca|.2d at p. 556.) The tenant sued the owners of the house, the real estate salesperson who showed the
tena nt the home, and the real estate agent who employed the saIeSperson. (|bid.) The court fou nd that the
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real estate agent and salesperson owed the tena nt a duty, despite not being 'In privity of contract with her.
The court stated [p]rivity of contract is not necessary to establish the existence of a duty to exercise ordinary
ca re not to injure another, but such duty may arise out of a volunta rily assu med relationship if public policy
dictates the existence of such a duty. (Id. at pp. 561-562.) Insomuch as Plaintiffs assert that Merrill creates a
duty of care that realtors owe to prospective tenants, they overstate its scope. The issue in Merrill was
whether a realtor on an inspection tour with a prospective renter had a duty to warn ofa concealed da nger
that might harm anyone who rented the home. (Merrill, supra 58 Ca|.2d at p. 562 [these defenda nts were
under a duty of care to warn her ofa concealed danger in the premises ofwhich they were aware ancl from
which her injury might be reasonably foreseen ifshe did become a tenant ].) There is no similar concealed
da nger alleged here.
The other cases cited in Plaintiffs opposition do not assistthem because they are distinguishable. Plaintiffs
also cite Lucus v. Hamm, (1961) 56 Cal. 2d 583, 589 (Lucus), where an attorney engaged to prepare a will was
sued by a beneficia ry. Plaintiffs cite Lucus for the point the lackof privity between plaintiffs and defenda nt
does not preclude plaintiffs from maintaining an action in tort against defendant. Here, Plaintiffs were not
the intended beneficiary of a document or agreement between Rawson ancl the realtors, ancl thus are not
similar to the plaintiffs in Lucus. Moreover, the Cou rt is unawa re of any law holding that a real estate agent s
negligent advice to his or her client can be the basis for a cause of action for negligence by the prospective
renter.
For the firsttime on reply, Rawson asserts that Plaintiffs have alleged intentional conduct not negligence, by
Amarnath and Foster. Courts typically do not consider points raised for the firsttime on reply for due process
reasons. (Tiffany, supra, 223 Cal.App.3d at pp. 302-303; see also Reicha rdt, supra, 52 Ca|.App.4th at p.764;
REO, supra, 69 Ca|.App.4th at p.500.) The Court, therefore, will not consider the merits of Rawson s new
argu ment.
Accordingly, the demurrer to the tenth cause of action for negligence is SUSTAINED, with 10 clays leave to
amend.
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