Judge: Armen Tamzarian, Case: 20STCV26552, Date: 2023-05-15 Tentative Ruling
Case Number: 20STCV26552 Hearing Date: May 15, 2023 Dept: 52
Defendant Wilshire Fremont Condominium
Homeowners Association, Inc.’s Motion for Summary Judgment, or in the Alternative,
Summary Adjudication
Defendant Wilshire Fremont Condominium
Homeowners Association, Inc. (HOA) moves for summary judgment or summary
adjudication of each cause of action against it by plaintiff Florence Fleming
aka Bo Fleming.
Summary Judgment or Adjudication
Courts grant summary judgment or adjudication
where no triable issues of fact exist and the moving party is entitled to
judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c); Villa v.
McFerren (1995) 35 Cal.App.4th 733, 741.)
A defendant moving for summary
judgment must show “that one or more elements of the cause of action… cannot be
established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c(p)(2).) Once the defendant does so, the burden shifts
to the plaintiff to show a triable issue of at least one material fact. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 849.) Courts
“liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that
party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384,
389.)
Davis-Stirling Act’s Requirement for Alternate
Dispute Resolution
The HOA argues plaintiff’s action fails
because she did not first engage in alternative dispute resolution. “An association or a member may not file an
enforcement action in the superior court unless the parties have endeavored to
submit their dispute to alternative dispute resolution.” (Civ. Code, § 5930(a).)
This requirement does not apply to this
action. It “applies only to an
enforcement action that is solely for declaratory, injunctive, or writ relief,
or for that relief in conjunction with a claim for monetary damages not in excess
of the jurisdictional limits stated in Sections 116.220 and 116.221 of the Code
of Civil Procedure.” (Civ. Code, §
5930(b).) Plaintiff claims monetary
damages exceeding those limits. “[T]he
small claims court has jurisdiction in an action brought by a natural person,
if the amount of the demand does not exceed ten thousand dollars ($10,000).” (CCP § 116.221.)
The second amended complaint’s seventh cause of action alleges
the HOA breached its duty to maintain and repair the building “by failing to
maintain the roof, HVAC system, and other building systems so that water has
intruded into the building and into the Property thereby causing damage to the
Property.” (SAC, ¶¶ 98.) The eighth cause of action similarly seeks
damages for the water intrusion. (SAC,
¶¶ 103-106.) Plaintiff presents evidence
that repairing the damages to the property could cost far more than
$10,000. In May 2019, Golden Blue
Builders Group provided Brian Fleming an estimate of $142,970 to repair water
damage to the property. (Kunkle Decl., ¶
8, Ex. G.)
Defendant contends the evidence shows plaintiff has not
suffered over $10,000 in damages. Even
assuming that is true, it is irrelevant.
The jurisdictional limit depends on
the “claim for monetary damages” (Civ. Code, § 5930(b)) and “the demand”
of the claim (CCP § 116.221). “The
decisive factor in determining the amount of money at issue for jurisdictional
purposes is the demand of the complaint, not the amount of the ultimate
judgment.” (People v. Argonaut Ins.
Co. (1977) 71 Cal.App.3d 994, 996; accord Minor v. Municipal Court
(1990) 219 Cal.App.3d 1541, 1547.)
Regardless of whether plaintiff can prove over $10,000 in damages, her action
demands more than $10,000. Civil Code
section 5930(a) therefore does not apply.
First Through Third Causes of Action
Defendant
shows plaintiff cannot establish her first cause of action for quiet title, her second cause of action for injunctive
relief, and her third cause of action for declaratory relief against the
HOA. These causes of action arise from a
notice of default the HOA recorded in June 2019 for unpaid assessments. (SAC, ¶ 58.)
Plaintiff seeks to quiet title in her favor, to enjoin the HOA from
foreclosing on its encumbrance (id., ¶ 70), and for a declaration of the
parties’ rights in the property, including the defendants’ encumbrances (id.,
¶ 73).
The
undisputed facts show the HOA’s encumbrance on the property is valid. “The Legislature has enacted very specific
procedural rules governing condominium assessments,” and those rules do not
excuse an owner from paying assessments when the HOA breaches its duties. (Park Place Estates Homeowners Assn. v.
Naber (1994) 29 Cal.App.4th 427, 431.)
“Condominium homeowners associations must assess fees on the
individual owners in order to maintain the complexes.” (Id. at pp. 431-432.) HOA members like plaintiff have an “ ‘[t]he
independent nature of the covenant to pay’ ” assessments. (Id. at p. 432.)
Plaintiff does not dispute that she has not
paid any monthly homeowners association dues (Opp. separate statement, UMF No.
6) and that Wilshire Fremont has not received a monthly association payment for
the property since 2016 (id., UMF No. 7). The undisputed facts therefore show plaintiff
has no basis for quieting title, injunctive relief, or declaratory relief
against the HOA with respect to the subject property.
Plaintiff’s
opposition does not address these causes of action. She makes no argument and provides no
authority that her duty to pay assessments was excused.
Seventh Cause of Action for Negligence
Triable
issues of fact preclude summary adjudication of this cause of action. Defendant contends plaintiff cannot establish
this cause of action for three reasons.
First,
the HOA argues plaintiff has no evidence it had notice of the leak and it
therefore had no tort duty for negligence.
Plaintiff presents evidence showing that, at the latest, the HOA had
notice of the leak via this litigation.
Plaintiff’s counsel, Mark B. Simpkins, exchanged several emails with the
HOA’s counsel about the leak. On
November 25, 2020, he wrote, “[M]y client now has possession of the condo. There is substantial water damage inside,
which was caused by leaks in the HOA’s roof and the HVAC unit. We need to make repairs in order to market
and sell the property, but cannot do so unless and until the HOA repairs the
source of the water.” (Simpkins Decl.,
Ex. A, p. 006.) The same day, the HOA’s
counsel replied, “I have inquired on the water damage issue.” (Id. at p. 010.)
On December 3, 2020, Simpkins sent the HOA’s
attorney an email stating, “My client is hiring contractors to do the repair
work, which we can’t start until it is confirmed that the HOA has repaired the
roof and HVAC leaks which caused the damage.”
(Simpkins Decl., Ex. A, p. 015.)
The next day, Simpkins sent another email stating, “Water pours into my
client’s unit, and also into the common areas in the hallway.” (Id. at p. 020.)
This evidence establishes a triable issue of
fact on whether the HOA had notice of the leak.
Second, defendant argues the economic loss
rule bars plaintiff’s claim for negligence.
That rule does not apply. “The
economic loss [fn.] rule has been applied to bar a plaintiff’s tort
recovery of economic damages unless such damages are accompanied by some form
of physical harm (i.e., personal injury or property damage).” (North American Chemical Co. v. Superior
Court (1997) 59 Cal.App.4th 764, 777.)
The rule is most frequently applied in cases about construction defects
and products liability. For example, Aas v. Superior Court (2000) 24 Cal.4th 627 applied the
economic loss rule to preclude tort liability “for construction defects that
have not caused property damage.” (Id.
at p. 632, superseded by statute on other grounds as stated in Rosen v.
State Farm General Ins. Co. (2003) 30 Cal.4th 1070, 1079-1080.) But the California Supreme Court noted that
“tort law provides a remedy for construction defects that cause property damage
or personal injury.” (Ibid.)
This case involves physical harm to
property: water damage to the subject property.
The economic loss rule therefore does not apply.
Third, the HOA argues plaintiff cannot establish she suffered
any damages. The court discusses this argument
in the next section because it also applies to plaintiff’s eighth cause of
action for breach of contract.
Damages for Seventh and Eighth Causes of
Action
Defendant
argues plaintiff has suffered no damages because she did not reside in the
property and did not pay to repair any water damage or incur any other
expenses. Generally, damages are “the
amount which will compensate the party aggrieved for all the detriment
proximately caused thereby, or which, in the ordinary course of things, would
be likely to result therefrom.” (Civ.
Code, § 3300.)
Regardless of whether the plaintiff paid for
the repairs, a property owner can recover damages for diminished value of the
property. “[A] plaintiff in a suit for
negligent damage to real property is allowed to recover either the cost of
repair or the diminution in value, but not both.” (Safeco Ins. Co. v. J & D Painting
(1993) 17 Cal.App.4th 1199, 1202.)
Damages “for harm to land… include compensation for (a)) the difference
between the value of the land before the harm and the value after the harm, or
at his election in an appropriate case, the cost of restoration that has been
or may be reasonably incurred.” (Rest.2d
Torts § 929(1).) “One whose land has
been damaged is entitled to compensation for the difference between its value
before and after the harm.” (Id.,
com. a.)
As discussed above, plaintiff presents evidence
that her property suffered damages that would cost over $140,000 to
repair. (Kunkle Decl., ¶ 8, Ex. G.) The estimated price is substantial. From this evidence, a factfinder could
reasonably infer that the water damage diminished the property’s value.
In its reply, defendant contends plaintiff suffered
no damage because she no longer owns the property. (This argument relies on evidence the
property was sold at a foreclosure sale in April 2023—after defendant filed
this motion. Plaintiff had no fair
opportunity to respond to this argument.)
Though plaintiff no longer owns the property, she owned it after the
disputed water damage allegedly diminished its value. When construing evidence in favor of the
opposing party, plaintiff adequately shows a triable issue of material fact on
whether she suffered damages. The
reasonable inference in her favor is that decreasing the property’s value
reduced her equity in it.
Evidentiary Objections
Plaintiff makes two objections to the
declaration of Artemis Avetisyan. Both
objections are overruled.
Defendant makes five objections to the
declaration of Florence Fleming. Objection Nos. 1-4 are overruled. Objection No. 5 is sustained.
Defendant makes six objections to the
declaration of Justin Kunkle. Objection
Nos. 1-5 are overruled. Objection
No. 6 is sustained.
Defendant
makes four objections to the declaration of Billie Parsons. Objection No. 1 is overruled. Objection Nos. 2, 3, and 4 are sustained.
Defendant makes two objections to the
declaration of Mark B. Simpkins.
Objection No. 1 is overruled.
Objection No. 2 is sustained.
Defendant makes two objections to the
declaration of Brian Weiner. Both
objections are overruled.
Disposition
Defendant Wilshire Fremont Condominium
Homeowners Association, Inc.’s motion for summary judgment or summary
adjudication is granted in part.
The court hereby grants summary
adjudication of the first, second, and third causes of action against Wilshire Fremont
Condominium Homeowners Association, Inc.
The court hereby denies summary adjudication of the seventh and
eighth causes of action.