Tentative Ruling: Kristen d’Offay, et al. v. Berkshire Hathaway Home Services, et al.
Case Number
25CV06538
Case Type
Hearing Date / Time
Wed, 08/26/2026 - 10:00
Nature of Proceedings
Demurrer by Defendants Jamie Faletti and SB Wealth, Inc., dba Keller Williams Realty Santa Barbara, to First Amended Complaint
Tentative Ruling
For Plaintiffs Kristen d’Offay, L.D., and P.D.: Shawn E. Cowles, Anthony J. Fusaro, Jr., Dhillon Law Group Inc.
For Defendants Jamie Faletti and SB Wealth, Inc., dba Keller Williams Realty Santa Barbara: Matthew Olufs
For Defendants Pickford Real Estate, Inc. dba Berkshire Hathaway Home Services California Properties, Marsha Koltyar, and Patrice Serrani: Michael F. Obrand, Jesse D. Obrand, Obrand Law Group, APC
For Defendant Shengsheng “Adam” He: No Appearance
RULING
For all reasons stated herein, the demurrer to the first amended complaint by defendants Jamie Faletti and SB Wealth, Inc., dba Keller Williams Realty Santa Barbara, is overruled. These defendants shall file an answer to the first amended complaint on or before September 10, 2026.
The Court confirms the following dates:
Pretrial Conference 11:30am 6/23/27; all pretrial documents are due one
week in advance.
Court trial begins at 9am 6/24/27
MSC 6/4/27 at 8:30am in Dept. 5 via Zoom
Final CMC 12/9/26 at 8:30am
Background
This action was initiated on October 17, 2025, by plaintiff Kristen d’Offay (d’Offay) and two of her children, L.D. and P.D. On October 31, 2025, plaintiffs filed the operative first amended complaint (FAC) against defendants Pickford Real Estate, Inc., dba Berkshire Hathaway Home Services California Properties (Berkshire Hathaway), Marsha Kotlyar (Kotlyar), Patrice Serrani (Serrani), SB Wealth, Inc., dba Keller Williams Realty Santa Barbara (Keller Williams), Jamie Faletti (Faletti), and Shengsheng “Adam” He (Adam) (collectively, Defendants). The FAC asserts five causes of action for (1) concealment against all Defendants, (2) breach of fiduciary duty against Berkshire Hathaway, Kotlyar, Serrani, (3) negligence against all Defendants, (4) negligent misrepresentation against Berkshire Hathaway, Kotlyar, Serrani, and (5) private nuisance against Adam.
As alleged in the FAC:
Defendants participated in the sale of a residential property to d’Offay at 627 Romero Canyon Road in Montecito (Property) without disclosing that it had previously been affected by severe mudslides in Montecito in 2018 (the 2018 Mudslides), flooding, and mold. (FAC, ¶¶ 3, 5.)
Defendant Adam was the seller in this transaction and is currently incarcerated after pleading guilty to financial fraud pertaining to unrelated transactions. (FAC, ¶¶ 5-6, 30.)
Defendant Faletti is the seller’s (i.e, Adam’s) listing agent who works for defendant Keller Williams (collectively, Seller Agents). (FAC, ¶¶ 28, 48.)
Defendants Kotlyar and Serrani are the buyer’s (i.e., d’Offay’s) agents who work for defendant Berkshire Hathaway (collectively, Buyer Agents). (FAC, ¶¶ 25, 26, 50.)
Seller Adam knew the Property was severely affected by the 2018 Mudslides. (FAC, ¶ 45.) Adam knew that water and mud had entered the Property, filled the crawl space which lacked adequate ventilation, and polluted the pool. (Ibid.)
Adam covered up the damage and sold the Property to d’Offay without disclosing the Property was affected by flooding, mudflow, and mold. (FAC, ¶ 5.) Adam conducted the minimum renovations necessary to make the Property appear attractive and livable so that he could sell it for a large profit. (FAC, ¶ 47.) Adam knowingly cut corners and covered up defects, and sold the Property to d’Offay knowing it was not fit for habitability. (Ibid.)
Defendants Faletti, Kotlyar, Serrani, Keller Williams, and Berkshire Hathaway (Real Estate Professionals) all knew about the 2018 Mudslides and preexisting damage to the Property. (FAC, ¶¶ 49, 59.) The Real Estate Professionals concealed the Property’s defects to complete the sale to d’Offay. (FAC, ¶¶ 49-72.) Serrani, d’Offay’s agent, represented to d’Offay that the Property was turnkey. (FAC, ¶ 11.) The Real Estate Professionals saw the misrepresentations in Adam’s seller disclosure and intentionally or negligently decided not to alert d’Offay to the material misrepresentations or omissions about the 2018 Mudslides and mud, debris, flood waters, and mold at the Property. (FAC, ¶ 63.) The Real Estate Professionals had independent knowledge of these Property defects prior to the sale. (FAC, ¶¶ 49, 59, 120.)
d’Offay purchased the Property in 2020 after recently moving to this area from Northern California. (FAC, ¶¶ 8, 17.) After purchasing the Property, d’Offay and two of her children became ill with decreased energy, lethargy, repeated sickness, rashes, constant watery eyes, and sinus issues. (FAC, ¶ 18.)
d’Offay subsequently learned that mud and water had penetrated the difficult-to-access crawl space located below the Property. (FAC, ¶ 19.) She also learned that moisture and water were trapped in the wall cavities hidden from view. (Ibid.) d’Offay learned in March 2024 that this water and mud intrusion caused mold to grow in hidden places throughout the Property. (Ibid.)
d’Offay was required to undertake mold remediation work, throw away valuable personal property, move out of the Property into a rental property, get blood tests and seek medical interventions, and permanently close her women’s clothing business because she lacked the energy and good health necessary to run the business. (FAC, ¶ 20.)
Plaintiffs seek to recover damages and other relief based on legal theories including that Defendants negligently misrepresented facts, fraudulently concealed known defects in the Property, committed negligence, and breached fiduciary duties.
Seller Agents, defendants Faletti and Keller Williams, demur to the FAC on the grounds that all causes of action are barred by the two-year statute of limitations established by Civil Code sections 1102, 2079, and 2079.4, and Loken v. Century 21 (1995) 36 Cal.App.4th 263, 270, 273 (Loken). (Demurrer, p. 3, ll. 5-8.) Seller Agents argue that “the statute of limitations against an agent or broker is two years from the date of the close of escrow, regardless of when the Plaintiff discovers the problems, and regardless of how the causes of action are named.” (Id., p. 3, ll. 8-10.) This demurrer is opposed by plaintiffs. The Buyer Agents did not appear in this action until after this demurrer was filed and have taken no position on the demurrer.
Analysis
(1) Standards on Demurrer
“Because the function of a demurrer is to test the sufficiency of a pleading as a matter of law, we … assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.] It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) “The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043.) “[I]n ruling on a demurrer the trial court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice.” (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1133-1134.)
“[I]t is difficult for demurrers based on the statute of limitations to succeed because (1) trial and appellate courts treat the demurrer as admitting all material facts properly pleaded and (2) resolution of the statute of limitations issue can involve questions of fact. Furthermore, when the relevant facts are not clear such that the cause of action might be, but is not necessarily, time-barred, the demurrer will be overruled. [Citation.] Thus, for a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed.” (Schmier v. City of Berkeley (2022) 76 Cal.App.5th 549, 554 (Schmier).)
“The limitations period, the period in which a plaintiff must bring suit or be barred, runs from the moment a claim accrues. … Traditionally at common law, a ‘cause of action accrues when [it] is complete with all of its elements—those elements being wrongdoing, harm, and causation.’ [Citation.] This is the ‘last element’ accrual rule: ordinarily, the statute of limitations runs from ‘the occurrence of the last element essential to the cause of action.’ ” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) “If a demurrer demonstrates that a pleading is untimely on its face, it becomes the plaintiff’s burden ‘even at the pleading stage’ to establish an exception to the limitations period.” (Id. at p. 1197.)
(2) Two-Year Statute of Limitations in Civil Code Section 2079.4
Seller Agents demurrer to the FAC on the grounds that the Property was allegedly purchased in 2020, and this action was filed on October 17, 2025. (Demurrer, p. 3, ll. 5-10.) Defendants argue there is a two-year statute of limitations pursuant to Civil Code sections 1102, 2079, and 2079.4, as discussed in Loken, supra, 36 Cal.App.4th at p. 270. Seller Agents argue there is no tolling for delayed discovery. In reply, they also discuss Williams v. Wells & Bennett Realtors (1997) 52 Cal.App.4th 857, 865 (Williams), which addresses Civil Code sections 2079 and 2079.4 in the context of intentional acts of fraud and negligent misrepresentation.
“Except as provided in Section 1102.2, this article applies to any transfer by sale, exchange, real property sales contract as defined in Section 2985, lease with an option to purchase, any other option to purchase, or ground lease coupled with improvements of any single-family residential property.” (Civ. Code, § 1102.)
“The specification of items for disclosure in this article does not limit or abridge any obligation for disclosure created by any other provision of law or which may exist in order to avoid fraud, misrepresentation, or deceit in the transfer transaction.” (Civ. Code, § 1102.8.)
“It is the duty of a real estate broker or salesperson, licensed under Division 4 (commencing with Section 10000) of the Business and Professions Code, to a prospective buyer of residential real property … to disclose to that prospective buyer all facts materially affecting the value or desirability of the property that an investigation would reveal, if that broker has a written contract with the seller to find or obtain a buyer or is a broker who acts in cooperation with that broker to find and obtain a buyer.” (Civ. Code, § 2079.)
“In no event shall the time for commencement of legal action for breach of duty imposed by this article exceed two years from the date of possession, which means the date of recordation, the date of close of escrow, or the date of occupancy, whichever occurs first.” (Civ. Code, § 2079.4.)
(3) The First and Third Causes of Action against Seller Agents
The FAC alleges two causes of action against Seller Agents—the first cause of action for concealment and the third cause of action for negligence. (FAC, ¶¶ 111-123, 131-144.) As to concealment, Williams makes clear that while Civil Code sections 2079 and 2079.4 may apply to claims for negligence and negligent misrepresentation, these sections do not apply to intentional fraud. (Williams, supra, 52 Cal.App.4th at p. 865.) This “special statute of limitations does not apply to causes of action for intentional fraud ….” (Id. at p. 859; see also Civ. Code, § 1102.8 [“The specification of items for disclosure in this article does not limit or abridge … any other provision of law or which may exist in order to avoid fraud, misrepresentation, or deceit in the transfer transaction.”].)
The first cause of action is for the tort of concealment. (FAC, ¶¶ 111-123.) Concealment is a species of intentional fraud. (See SCC Acquisitions Inc. v. Central Pacific Bank (2012) 207 Cal.App.4th 859, 864 [one element of concealment is “the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff”].) Civil Code sections 2079 and 2079.4 have no application to the first cause of action for concealment. (Williams, supra, 52 Cal.App.4th at p. 859.) Civil Code section 1102 does not contain a statute of limitations.
Additionally, the FAC does not allege the existence of a written contract between Seller Agents and the seller Adam, “to find or obtain a buyer.” (See Civ. Code, § 2079.) While Faletti is alleged to be a “listing agent” and a “real estate agent for Keller Williams,” there are no allegations of written contracts among any of these parties and Adam to find or obtain a buyer. (See FAC, ¶ 48) No such contracts are attached to the FAC and there is no request for judicial notice. It is not clear on the face of the FAC that the causes of action therein rest on violations or obligations under Civil Code section 2079. The demurrer does not address this issue of written contract. The demurrer will be denied on this additional ground. (Schmier, supra, 76 Cal.App.5th at p. 554.)
Further, while the FAC generally alleges in paragraph one that “[t]his is a case about large real estate brokerages and their licensed real estate agents,” there is no allegation in the FAC that the Seller Agents are “licensed under Division 4 (commencing with Section 10000) of the Business and Professions Code.” (See Civ. Code, § 2079.) There is no request for judicial notice establishing such licensing. The demurrer does not address this issue of licensing. Thus, for this additional reason, it is not clear from the face of the FAC or from matters judicially noticeable that Civil Code sections 2079 and 2079.4 apply to any of the causes of action in the FAC including the first and third causes of action. (Schmier, supra, 76 Cal.App.5th at p. 554.)
The demurrer did not make further arguments. For all these reasons, the court will overrule the demurrer by Seller Agents.
(4) Appearances by Other Defendants
The court notes that on December 1, 2025, plaintiffs filed a proof of service of summons as to Buyer Agents, defendants Kotlyar, Serrani and Berkshire Hathaway, but there is no responsive pleading on file as to these defendants. Buyer Agents appeared in this action on June 24, 2026, at the initial case management conference, which was continued to December 9, 2026.
Similarly, on March 24, 2026, plaintiffs filed a proof of service as to defendant Adam, but there is no responsive pleading on file as to this defendant. The court’s records do not reflect any appearance by Adam in this action.