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Rick Sillman et al v. John Walker et al

January 10, 2013

RICK SILLMAN ET AL., PLAINTIFFS AND APPELLANTS,
v.
JOHN WALKER ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 150224)

The opinion of the court was delivered by: Nicholson , Acting P. J.

Sillman v. Walker

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After plaintiffs Rick Sillman and Kim Laird filed their fourth amended complaint for breach of contract and fraud, defendants John Walker and Lisa Talcott moved for judgment on the pleadings. Plaintiffs did not oppose the motion, and the trial court granted it.

In this pro se judgment roll appeal from the ensuing judgment, plaintiffs contend the appeal should be stayed until the trial court can determine whether defendants violated the automatic stay triggered by Sillman's bankruptcy petition, assert that the trial court should have granted a continuance of the hearing on defendants' motion, and argue the merits of their claims against defendants. Because plaintiffs have failed to provide an adequate record to assess their first two contentions, and their complaint fails to state a cause of action against defendants, we affirm the judgment.

BACKGROUND

In accordance with the legal principles governing our review of the trial court's grant of a motion for judgment on the pleadings, the following factual recitation is based on the allegations of the plaintiffs' fourth amended complaint and such matters as may be subject to judicial notice. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516; Stone Street Capital, LLC v. California State Lottery Com. (2008) 165 Cal.App.4th 109, 116.)

The Transaction

In February 2005, Sillman purchased from Walker a mobile home and approximately 2.1 acres of land on Powtan Trail in Oroville (the Powtan Trail property).*fn1 In connection with that transaction, Sillman and Walker signed a written "Manufactured Home Purchase Agreement" and a "Buyer's Inspection Advisory," in which Sillman acknowledged Walker had a duty to make the property available for inspection and to disclose known material facts affecting the value, but no duty to inspect and no "obligation to repair, correct or otherwise cure known defects" or defects discovered by Sillman.*fn2 The purchase was financed in part by Walker: Sillman and Walker signed a "Seller Financing Addendum and Disclosure" in or about May 2005, pursuant to which Walker agreed to extend credit to Sillman for part of the purchase price, in exchange for monthly payments and a balloon payment due in five years. Sillman executed a promissory note and deed of trust in Walker's favor.*fn3

After the purchase, Sillman and his daughter, plaintiff Kim Laird, resided on the Powtan Trail property. As of the filing of the operative complaint, Sillman still lived there. Defendant Talcott owned the adjacent parcels, where she and Walker lived; they subsequently moved to Montana.

Sometime in late 2008 or early 2009, Sillman sought bankruptcy protection. During the pendency of the Sillman's bankruptcy, defendants -- who plaintiffs contend had not kept accurate records of plaintiffs' payments on the property -- sought relief from the automatic stay, and Sillman's bankruptcy petition was inadvertently dismissed. Sillman's bankruptcy petition was reinstated, but not before foreclosure proceedings were initiated and Walker acquired the property at the resulting trustee's sale in April 2009.

The Pleadings

Plaintiffs' original complaint (filed in May 2010) alleged causes of action for breach of contract and fraud arising out of the 2005 real estate transaction. The original complaint is not in the record on appeal; nor are the first, second or third amended complaints. Neither are defendants' demurrers to these complaints, which were all sustained with leave to amend.

The fourth amended (operative) complaint against defendants, filed June 13, 2011, purports to allege causes of action for breach of contract, fraud and deceit, and "intentional tort." It seeks to recover money spent by plaintiffs to repair "undisclosed defects" and "structural damages," as well as punitive damages.

The breach of contract claim states it is based on the 2005 written real estate purchase agreement executed by Walker and Sillman and "oral agreements" by Walker to, within 30 days of the close of escrow, remove all trash on the property, and show Sillman the location of county survey markers. Plaintiffs also allege Walker breached his oral promises to Sillman to reduce the monthly payments or purchase price "when the condition of the home or property was not as presented"; to "[w]ork with plaintiffs if there were any problems about the condition of the subject property, above what was disclosed"; to "[w]ork with plaintiffs if they ran into any financial difficulties" and to "[r]estore the section of ...


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