Filed 9/10/21 Goodfield v. Frahm CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

BRUCE GOODFIELD, et al.,

 Plaintiffs and Appellants,

v.

DANIEL A. FRAHM, et al.,

 Defendants and Respondents.

 G059551

 (Super. Ct. No. 30-2019-01050047)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gregory 

H. Lewis, Judge. Reversed.

Wright, Finlay & Zak, Jonathan D. Fink and Charles C. McKenna for 

Plaintiffs and Appellants.

Van Ripper Law and David A. Van Riper for Defendants and Respondents.
2

This case concerns the disclosure obligations of a residential property

seller. Plaintiffs Bruce Goodfield and Kerry Goodfield (buyers) appeal from a summary 

judgment granted in favor of defendants Daniel A. Frahm and Claire Frahm (sellers). 

The trial court concluded sellers’ disclosure of prior pool crack repairs was sufficient, as 

a matter of law, to satisfy their duty to disclose all pool-related material facts affecting

the value or desirability of the property. Buyers contend the court erred because the 

evidence demonstrated triable issues of material fact as to whether sellers failed to 

disclose other pool-related material facts known only to them. They point to documents

produced by sellers during discovery, which allegedly notified them for the first time of 

more extensive repair work previously performed on the pool, an ongoing pool leak, and 

other serious pool-related problems. We agree the grant of summary judgment to 

defendants was erroneous. The record is rife with triable issues of material fact, and, 

separately, sellers failed to meet their initial summary judgment burden regarding buyers’

cause of action for statutory disclosure violations. Accordingly, the judgment is reversed.

FACTS

Sellers listed their single-family home (property) for sale. It had a 

backyard pool and spa. Buyers offered to buy the property, sellers accepted the offer, and 

the parties opened escrow. Sellers were represented by an agent (sellers’ agent); Kerry 

Goodfield,1 a licensed real estate agent, acted as buyers’ agent. 

While in escrow, Kerry performed a visual inspection of the property 

pursuant to state law and prepared a report. With respect to the pool, the report noted

there were “cracks in [the] pool[.]” It also stated the backyard wall was “tilt[ed] to [the] 

back slope[.]”

Less than one week later, sellers’ agent performed a visual inspection of the 

property pursuant to state law and prepared a report. The only mention of the pool in the 

1 When the context requires, we use the parties’ first names only for the sake of 

clarity; no disrespect is intended.
3

report was a recommendation for “buyer to satisfy themselves as to all plumbing and pool 

repairs.” Separately, the report advised the buyers “to have the home and grounds 

inspected by a [g]eotechnical [e]ngineer.”

On the same day sellers’ agent inspected the property, Bruce received from 

sellers a copy of a written Seller Property Questionnaire. The form’s stated purpose was 

“to tell the [b]uyer about known material or significant items affecting the value or 

desirability of the [p]roperty and help to eliminate misunderstandings about the condition 

of the [p]roperty.”

In a section titled “Landscaping, Pool and Spa,” sellers checked a box 

stating they were aware of “[p]ast or present defects, leaks, cracks, repairs or other 

problems with the . . . pool [or] spa . . . including any ancillary equipment, . . . even if 

repaired.” Immediately thereafter in an “explanation” area, sellers handwrote the 

following: “POOL HEATER REPLACED MORE THAN 5 YEARS AGO[;] POOL 

CRACKS PROMPTLY REPAIRED[.]”

Within a different section of the Seller Property Questionnaire, titled 

“Repairs and Alterations,” sellers checked a box indicating they were aware of 

“alterations, modifications, replacements, improvements, remodeling or material repairs 

on the [p]roperty[.]” In the explanation area directly below, they handwrote the 

following: “POOL CRACKS & PLUMBING REPAIRS[.]”

Elsewhere on the Seller Property Questionnaire, sellers checked a box 

specifying they were aware of “[r]eports, inspections, disclosures, warranties, 

maintenance recommendations, estimates, studies, surveys or other documents pertaining 

to (i) the condition or repair of the [p]roperty or any improvement on [the] [p]roperty in 

the past, now or proposed; or (ii) easements, encroachments or boundary disputes 

affecting the [p]ropety whether oral or in writing and whether or not provided to the 

[s]eller[.]” The form recited that if this box was marked “yes,” then any such documents 

in sellers’ possession would be provided to buyers. 
4

Sellers also represented to buyers on the Seller Property Questionnaire that

sellers were not aware of (1) any “[m]aterial facts or defects affecting the [p]roperty not 

otherwise disclosed to [b]uyer”; or (2) “[a]ny past or present known material facts or 

other significant items affecting the value or desirability of the [p]roperty not otherwise 

disclosed to [b]uyer[.]”

Over the course of the following month, buyers posed to sellers two 

questions concerning the pool. The first question asked, “Regarding pool cracks: can 

you advise when this was repaired and what company did the work?” Sellers provided 

the name of the company and said it “performed the most recent repairs within the last 1 

or 2 years, as well as other repairs going back as far as 10 years.” Appearing to believe 

sellers’ first response only provided information concerning leak detection for the pool, 

buyers followed up with a second question asking for the name of whomever filled the 

cracks in the pool. Sellers responded by providing an invoice for the then most recent 

pool crack repair ($175) and leak detection ($300), both of which were performed by the 

same company roughly three months prior. 

Buyers reached out to the company who performed the pool crack repairs 

and leak detection, attempting to get copies of relevant documents. The company 

indicated it did not have any information in its files concerning the subject pool. Neither 

buyers nor buyers’ agent tried to get the relevant documents from sellers prior to close of 

escrow.

After escrow closed, buyers learned from a then short-term tenant on the 

property that the pool had been losing water and the water level was decreasing “very, 

very quickly.” The tenant told them sellers’ agent reassured her buyers were aware of the 

pool leak. 

Buyers then hired the company who did the pool leak detection and crack 

repair work to inspect the pool. Upon arrival, the inspector told Kerry he had been to the 

property “‘many times’” and performed numerous repairs. 
5

According to buyers, other companies also came out to inspect the pool and 

provide recommendations. They informed buyers the pool problems were not fixable and 

the pool had to be replaced. Buyers obtained replacement cost estimates from five 

different companies, ranging from approximately $191,000 to $264,000.

Buyers sued sellers, alleging breach of contract, breach of the covenant of 

good faith and fair dealing, intentional misrepresentation and concealment, negligent 

misrepresentation, failure to make required statutory disclosures and general negligence. 

Each cause of action was grounded in sellers’ purported failure to disclose the true nature 

and extent of the pool-related problems and prior repairs.

Sellers moved for summary judgment, or in the alternative, summary 

adjudication on each cause of action. Their sole contention was buyers could not prevail 

on any of their claims, as a matter of law, because sellers did not fail to disclose any 

material fact. 

Buyers opposed the motion and argued there were multiple triable issues of 

material fact concerning whether sellers satisfied their disclosure obligations. Among 

other evidence, buyers submitted the documents which they first became aware of when 

they received sellers’ discovery responses. The documents included invoices, proposals

and reports from various companies who had inspected and/or performed work on the 

pool for sellers over the course of a decade.

Some of the invoices concerned leak detection and crack patching, while 

other invoices reflected replastering the pool and spa, and saw cutting and insertion of 

steel rebar in the pool. 

One of the proposals, dated a few months prior to close of escrow, 

concerned geotechnical services for a pool and spa repair and remodel contemplated by 

sellers. At the outset, the proposal stated: “We understand that your existing swimming 

pool has experienced distress. Distress is in the form of pool shell rotation and cracks in 

the plaster. It is also your suspicion that the pool may be leaking water. The cause of the 
6

distress is unknown, but is likely related to slope-creep effects and possibly fill 

settlement.” It went on to propose services to determine the subsurface conditions under 

the pool and original design construction so proper pool repair design recommendations 

could be made. 

The documents also included a series of e-mails exchanged between Daniel

and a pool engineer. The e-mails, dated a few months prior to the opening of escrow 

with buyers, indicated sellers were “contemplating a ‘pool within a pool’ repair” which 

might necessitate installation of two new footings to supplement one footing sellers had 

installed during a prior repair. Daniel also explained he was aware (1) their property had 

“slope creep,” having been told so “on several occasions, (2) the pool water line was 

“probably at least 1/2[ inch] out of alignment[,]” and (3) there was “some separation of 

deck from pool.” Sellers stated goal was “to reinforce the pool and prevent further creep, 

as recommended [by another company.]”

Kerry submitted a declaration in support of buyers’ opposition to the 

summary judgment motion which explained that prior to the close of escrow, she was not 

aware of the saw cut and rebar work or the added footing and replastering work 

performed on the pool. Unlike the crack repairs which were visible to her when standing 

next to the pool, the other repair work was not visible. She indicated buyers would not 

have purchased the property had sellers provided all the pool-related disclosures. She 

elsewhere stated they most likely would have canceled escrow and not gone forward with 

the purchase, but in the very least, they would have negotiated for a substantial price 

reduction. 

Following a hearing on sellers’ motion, the trial court granted summary 

judgment in their favor. Citing Pagano v. Krohn 60 Cal.App.4th 1 (Pagano), it 

concluded any additional information about past pool repairs would simply have been an 

elaboration of details concerning the disclosures made by sellers, meaning as a matter of 

law sellers had met their disclosure obligations. 
7

Buyers timely appealed following entry of judgment. 

DISCUSSION

Buyers contend the trial court erred in granting summary judgment in favor 

of sellers because there were triable issues of material fact concerning whether sellers 

satisfied their disclosure obligations in relation to the pool. We agree. 

A. Summary judgment principles and standard of review

“[A]ny party to an action, whether plaintiff or defendant, ‘may move’ the 

court ‘for summary judgment’ in his favor . . . .” (Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 843 (Aguilar).) “The court must ‘grant[ ]’ the ‘motion’ ‘if all the 

papers submitted show’ that ‘there is no triable issue as to any material fact’ . . . and that 

the ‘moving party is entitled to a judgment as a matter of law.’” (Ibid., citations omitted.) 

“‘The summary judgment procedure, inasmuch as it denies the right of the adverse party 

to a trial, is drastic and should be used with caution.’” (Osborn v. Hertz Corp. (1988) 

205 Cal.App.3d 703, 708.)

The party opposing summary judgment may defeat the motion by 

demonstrating there is one or more triable issues of material fact. (Aguilar, supra, 25 

Cal.4th at p. 849.) He or she “‘may not rely upon the mere allegations or denials’ of [the]

‘pleadings to show that a triable issue of material fact exists but, instead,’ must ‘set forth 

the specific facts showing that a triable issue of material fact exists as to [the challenged] 

cause of action . . . .’” (Ibid.)

“‘On review of an order granting or denying summary judgment, we 

examine the facts presented to the trial court and determine their effect as a matter of 

law.’ [Citation.] . . . Evidence presented in opposition to summary judgment is liberally 

construed, with any doubts about the evidence resolved in favor of the party opposing the 

motion. [Citation.]” (Regents of University of California v. Superior Court (2018) 4 

Cal.5th 607, 618.) Credibility determinations and the weighing of evidence are not 
8

proper matters. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 880; ARTS 

Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065.) 

Similarly, there is to be no resolving of fact issues. (Calemine v. Samuelson (2009) 171 

Cal.App.4th 153, 161 (Calemine).)

“[T]he trial court’s stated reasons for granting summary judgment ‘are not 

binding on us because we review its ruling, not its rationale.’” (Johnson v. Open Door 

Community Health Centers (2017) 15 Cal.App.5th 153, 157.) We affirm the summary 

judgment if correct on any of the grounds asserted in the moving party’s motion. 

(American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728, 747-748.)

B. Disclosure obligations of a seller of real property

Sellers’ summary judgment motion challenged all of buyers’ claims on one 

basis: as a matter of law, buyers could not establish sellers failed to comply with their 

disclosure obligations. Because the trial court apparently agreed, we focus our analysis 

on the law relating to a real estate seller’s duty of disclosure. “‘A real estate seller has 

both a common law and statutory duty of disclosure.’” (RSB Vineyards, LLC v. Orsi

(2017) 15 Cal.App.5th 1089, 1097 (RSB Vineyards).) We will discuss each in turn.

1. Common law disclosure duties

“‘“In the context of a real estate transaction, ‘[i]t is now settled in 

California that where the seller knows of facts materially affecting the value or 

desirability of the property . . . and also knows that such facts are not known to, or within 

the reach of the diligent attention and observation of the buyer, the seller is under a duty 

to disclose them to the buyer. [Citations.]’ [Citations.] Undisclosed facts are material if 

they would have a significant and measurable effect on market value. 

[Citation.]” . . . Where a seller fails to disclose a material fact, he may be subject to 

liability “for mere nondisclosure since his conduct in the transaction amounts to a 
9

representation of the nonexistence of the facts which he has failed to disclose [citation].”

[Citation.]’” (RSB Vineyards, supra, 15 Cal.App.5th at p. 1097.)

It is undisputed sellers disclosed prior pool crack repairs. Buyers contend 

there was more that should have been disclosed. They argue sellers were obligated to tell 

them about (1) the more extensive work previously performed on the pool, including

installation of a footing, saw cutting and insertion of steel rebar, and replastering on more 

than one occasion; (2) the pool shell rotation and slope creep; and (3) the then existing

pool leak. 

Sellers do not deny knowledge of these additional matters, but instead

argue they were not obligated to disclose them. Relying on Pagano, they claim the

additional information would simply have elaborated upon and provided further detail 

about the facts they did disclose, meaning it fell outside the scope of their disclosure 

duty. We are not persuaded.

Pagano is inapposite. In that case, a buyer purchased a condominium and 

the seller’s agent disclosed a past water intrusion problem that affected certain other units 

in the condominium complex. (Pagano, supra, 60 Cal.App.4th at p. 5.) After 

discovering water-related damage in the purchased condominium, the buyer sued and 

claimed the seller’s agent and the seller failed to disclose newsletters and other 

documents which chronicled the water intrusion issues, severe water intrusion problems 

experienced by three other owners and a copy of the complaint against the developer. 

(Id. at pp. 6, 8-9.) The Court of Appeal disagreed. As to the statutory disclosure 

obligations of the seller’s agent, the court concluded the agent satisfied its duty. (Id. at 

pp. 9-10.) The additional facts buyer claimed should have been disclosed “would have 

served only as elaboration” on the basic disclosed fact of water intrusion resulting in 

litigation against the developer. (Id. at p. 9.) Additionally, the court explained there was 

no evidence showing the seller’s agent or the seller would have had reason to believe the 

subject condominium would likely experience the same problems as other units. (Ibid.) 
10

To the extent the claims against the seller were based on the imputed knowledge of the 

seller’s agent, the court found the same reasoning applicable. (Id. at p. 10.)

Here, we are not concerned with (1) the statutory duty of a seller’s agent to 

“conduct a reasonably competent and diligent inspection and disclose all material facts 

such an investigation would reveal” (Pagano, supra, 60 Cal.App.4th at p. 8); (2) 

information that relates to properties other than the one purchased by buyers; or (3) 

information that simply elaborates on disclosed facts. With respect to the latter, and 

contrary to sellers’ assertions, they did not disclose a “defective” pool or “the existence 

of an aged, unlevel hillside pool with a long-term history of cracking and ‘material 

repairs.’” All they disclosed were pool crack repairs.

Sellers do not otherwise contest the materiality of the undisclosed facts. 

Even if they did, whether undisclosed facts are of sufficient materiality to affect the value 

or desirability of the property is a factual determination for the trier of fact. (Shapiro v. 

Sutherland (1998) 64 Cal.App.4th 1534, 1544; Alexander v. McKnight (1992) 7 

Cal.App.4th 973, 977 (Alexander).) And on that point, buyers submitted evidence the 

pool’s structural problems could not be fixed. A house with a structurally sound pool and 

a house with an irreparable structurally defective pool are two very different things.

Aside from materiality, sellers contend buyers could not establish a triable 

issue of fact concerning other matters which sellers claim are prerequisites to finding a 

seller disclosure duty. Specifically, sellers assert undisputed facts demonstrated (1) 

buyers knew or had reason to know about the undisclosed facts; (2) the undisclosed facts 

were within the “diligent attention” (RSB Vineyards, supra, 15 Cal.App.5th at p. 1097) of

buyers; (3) sellers did not know buyers could not learn of the undisclosed facts through 

diligent attention; and (4) sellers did not actually and justifiably rely on sellers’

omissions.

Before reaching the merits of these arguments, we must note something 

sellers overlook. The additional matters they raise are elements relevant to causes of 
11

action for intentional misrepresentation and/or negligent misrepresentation. (See Alliance 

Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 fn. 4 [justifiable reliance is an 

element of intentional misrepresentation and negligent misrepresentation]; Barnhouse v. 

City of Pinole (1982) 133 Cal.App.3d 171, 190-191 & fn. 7 [elements of fraudulent 

concealment]; Lingsch v. Savage (1963) 213 Cal.App.2d 729, 738 [elements of fraud 

based on nondisclosure].) As argued, they have no import on the viability of the other

causes of action alleged against them, including breach of contract, breach of covenant of 

good faith and fair dealing, failure to make statutorily required disclosures and general

negligence. (See Civ. Code, §§ 1102-1102.19 [disclosures upon transfer of residential 

property]; Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402 

[breach of contract]; Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 

Cal.App.4th 1230, 1244 [covenant of good faith and fair dealing]; Newhall Land & 

Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 349 [negligence].) Thus, 

summary judgment was improper and the most the trial court could have potentially 

awarded sellers was summary adjudication.

Even so, the evidence demonstrates triable issues of material fact as to each 

of the additional matters.

With respect to buyers’ knowledge, a buyer cannot prevail in a 

nondisclosure suit against a seller if the facts were known to, or within the diligent 

attention and observation of the buyer. (RSB Vineyards, supra, 15 Cal.App.5th at p. 

1097; Buist v. C. Dudley De Velbiss Corp. (1960) 182 Cal.App.2d 325, 31.) Sellers argue 

buyers “must be deemed by law to have known this pool was defective” because buyer’s 

agent (1) made written observations of “cracks in pool” and that “wall tilts to back 

slope”; and (2) admitted in a deposition she could see “it was an older pool[,]” “the 

backyard adjoined a slope[,]” there were “cracks in the pool deck[,]” and there were 

“uneven joints in the pool coping.”
12

However, what facts were known to the buyer in a particular case and what 

facts were within the buyer’s diligent attention and observation are factual matters to be 

resolved by the trier of fact. (Northwestern Portland Cement Co. v. Atlantic Portland 

Cement Co. (1917) 174 Cal. 308, 312; Sanfran Co v. Rees Blow Pipe Manufacturing Co. 

(1959) 168 Cal.App.2d 191, 202.) And, here, there was conflicting evidence. Buyers 

stated they had no actual knowledge of the more extensive pool repairs or structural 

problems due to slope creep, and Kerry stated none of the undisclosed conditions could 

be seen during her agent visual inspection or at any other time. This is arguably 

corroborated by sellers’ agent’s visual inspection which did not note any observation of 

the undisclosed pool repairs or geotechnical engineering issues.

Sellers go one step further, arguing the true condition of the pool was 

within buyers’ diligent attention because sellers would have provided the undisclosed 

documents had buyers asked. Such an argument turns a seller’s obligation on its head. A 

seller could always prevail in a nondisclosure suit simply by declaring they would have 

disclosed the information if the buyer had asked. That is not the law. A seller’s duty to 

disclose exists, in large part, because of a seller’s superior knowledge. (See Garrett v. 

Perry (1959) 53 Cal.2d 178, 181.) It is not dependent upon a buyer’s prescience in 

asking the right questions. (See Linden Partners v. Wilshire Linden Associates (1998) 62 

Cal.App.4th 508, 529 [“It has been repeatedly held by the courts of our state that one to 

whom a representation is made has no duty to employ means of knowledge which are 

open to that party and which could, if pursued, reveal the falsity of that representation”]; 

Alexander, supra, 7 Cal.App.4th at p. 977 [“[T]he concept of ‘let the buyer beware’ is an 

anachronism in California having little or no application in real estate law”].)

In a similar vein, we reject sellers’ assertion that the undisclosed conditions 

were within buyers’ diligent attention as a matter of law because they could have 

discovered the conditions by retaining experts to inspect the property, something sellers 

claim was recommended multiple times during escrow. “[A] buyer is entitled to rely 
13

upon a seller’s representations concerning the area of the property being sold, and is not 

required to hire an expert to discover the falsity of the seller’s representations.” (Furla v. 

Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1079 (Furla); see also Hartong v. Partake, 

Inc. (1968) 266 Cal.App.2d 942, 966 (Hartong) [“Where a plaintiff commences an 

investigation, his failure to discover the truth may be excused by the defendant’s superior 

knowledge of the facts, the difficulty in ascertaining all of the facts or plaintiff’s 

incompetence to judge the facts without expert assistance”].) 

Turning to sellers’ knowledge, whether sellers knew the undisclosed facts 

were not within the diligent attention of buyers is a factual issue on which there was 

conflicting evidence. On one hand, sellers noted they twice gave buyers the contact 

information for the company who performed the pool crack repairs and stated they 

believed buyers would contact that company if they were interested in the repair 

information. On the other hand, there was evidence not all the undisclosed information 

would have been discovered by contacting the pool crack repair company. Sellers 

possessed documents showing, at minimum, the pool replastering was performed by a 

different company and the pool shell rotation and slope creep issues were identified and

known to companies other than the one for which sellers gave buyers contact 

information.

Lastly, regarding buyers’ reliance, we recognize the seller’s duty to disclose 

does not relieve a buyer of the duty to exercise reasonable care to protect himself or 

herself. ““If the conduct of the [buyer] in the light of his own intelligence and 

information was manifestly unreasonable, . . . he will be denied a recovery” on a 

fraudulent misrepresentation theory. (Seeger v. Odell (1941) 18 Cal.2d 409, 415 

(Seeger).) However, whether a buyer unreasonably failed to protect him or herself and/or

unjustifiably failed to discover true conditions is a case specific factual issue for the trier 

of fact. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc.

(2009) 171 Cal.App.4th 1356, 1383; Furla, supra, 65 Cal.App.4th at p. 1079.) Falling 
14

within the ambit of the trier of fact’s charge is a determination of the level of care to 

which buyers should be held considering their own intelligence, knowledge and 

experience. (See Seeger, at p. 415; Hartong, supra, 266 Cal.App.2d at p. 965.) Notably, 

mere negligence in failing to investigate or discover the omitted facts is not a defense to 

intentional misrepresentation. (Smith v. Williams (1961) 55 Cal.2d 617, 620.)

Sellers urge us to decide whether buyers’ reliance was reasonable and 

justified as a matter of law. They argue buyers’ reliance was unreasonable because 

buyers’ agent did not fulfill her statutory duty to inspect the property. But generally, 

“[t]he fact than an investigation would have revealed the falsity of the misrepresentation 

will not alone bar . . . recovery.” (Seeger, supra, 18 Cal.2d at pp. 414-415.) And, 

buyer’s agent’s inspection obligation extended, at most, to “a reasonably competent and 

diligent visual inspection of the property[.]” (Civ. Code, § 2079.) As previously 

discussed, there is a triable issue of material fact whether the undisclosed facts were 

observable via a visual inspection.

In sum, the record is replete with triable issues of material fact concerning 

the alleged violation of sellers’ common law duty of disclosure, as well as the other 

matters raised by sellers which are relevant to buyers’ intentional and/or negligent 

misrepresentation causes of action.

2. Statutory disclosure duties

Buyers’ fifth cause of action alleged sellers violated their statutory 

disclosure obligations. Specifically, the cause of action alleged sellers failed to “provide 

[buyers] with transfer disclosure statements required by law setting forth all material facts 

relating to the . . . [p]roperty[.]” We requested further briefing from the parties 

concerning whether sellers met their initial summary judgment burden as to this cause of 

action. The briefing confirms sellers did not meet their burden.

“[T]he Legislature enacted . . . article 1.5 of the Civil Code which specifies 

the information a residential real property seller must disclose when transferring the 
15

property. In enacting this article, the Legislature made clear it did not intend to alter a 

seller’s common law duty of disclosure. The purpose of the enactment was instead to 

make the required disclosures specific and clear. . . .” (Calemine, supra, 171 Cal.App.4th 

at p. 161.) “The Legislature specified the precise disclosure form which must be used”

(id. at p. 162), known as a transfer disclosure statement. (Civ. Code, § 1102.6.) It also 

specified the disclosures must be made in good faith. (Civ. Code, § 1102.7.)

In their trial court papers, sellers failed to address a seller’s statutory 

disclosure obligations and the required transfer disclosure form. The latter is not even 

included in the record. Although sellers contend the omission was detrimental to buyers’

claim, the converse is true.

A defendant moving for summary judgment or adjudication “has the initial 

burden of showing that the [challenged] cause of action lacks merit because one or more 

elements of the cause of action cannot be established or there is a complete defense to 

that cause of action.” (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950.) By 

not providing the trial court with the transfer disclosure statement, other evidence of 

compliance with their statutory disclosure obligations or an explanation why buyers’

claim necessarily failed, sellers did not meet that burden vis-à-vis buyers’ fifth cause of 

action. As a result, the burden never shifted to buyers to demonstrate a triable issue of 

fact on that cause of action (ibid.), and summary judgment was improper (see Hayman v. 

Block (1986) 176 Cal.App.3d 629, 639 [summary judgment resolves all causes of action 

on all theories]).
16

DISPOSITION

The judgment is reversed. Buyers are entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.