Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendants The Rexford, Inc., Dipti Varma-Kapadia dba PMI La Pacific and Aaron Kadosh 

 

RESPONDING PARTY: Plaintiffs Gaspar Zatikian and Meline Zatikian 

 

BACKGROUND 

Plaintiffs Gaspar and Meline Zatikian own real property located at 125 South Rexford Drive, Unit 101, Beverly Hills, California.  Unit 101 is one of ten units located in a condominium project referred to as the Wilshire Rexford.  Plaintiffs are suing their homeowners association (The Rexford Inc.), the property manager (Dipti Varma Kapadia dba PMI La Pacific), the president of the HOA (Aaron Kardosh) and their neighbors (Gatum Mehra and David Nader). 

Plaintiffs allege various problems with their unit and the common areas, including an internal plumbing leak that has caused damage to their master bathroom; internal plumbing noises; lack of proper soundproofing in their neighbors’ unit; jammed, damaged, and broken side entrance doors; a garage leak above their parking spaces; a malfunctioning automatic gate; a malfunctioning air vent system; an ineffective rain gutter system; and an inability to access the common garden area.   

The operative complaint alleges claims for (1) enforcement of CC&Rs, (2) negligence, (3) breach of fiduciary duty, (4) nuisance, (5) conversion, (6) appointment of receiver and (7) declaratory relief.   

This hearing is on Defendants The Rexford Inc, Dipti-Varma Kapadia (dba PMI La Pacific) and Aaron Kadosh’s demurrer.  Defendants argue that the Complaint fails to comply with the requirements of Civ. Code §5950 by failing to attach a certificate of compliance.      

LEGAL STANDARD 

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

As a threshold matter, Plaintiffs argue that the demurrer is untimely.  A demurrer must be filed within thirty days of service of the Complaint.  (Code Civ. Proc. §430.40(a).)  Here, the Complaint was served on each Defendant more than four months ago.  (Torres Decl. ¶¶2-4.)  Defendants did not request or obtain any extension of time to respond.  (Torres Decl. ¶5.)  Accordingly, Defendants’ demurrer is untimely. 

Even if the demurrer were timely, the demurrer is without merit.  Defendants argue that demurrer should be sustained because Plaintiffs failed to file a certification in compliance with Civ. Code  §5950(a).  Section 5950(a) provides that “at the time of commencement of an enforcement action, the party commencing the action shall file with the initial pleading a certificate stating that one or more of the following conditions are satisfied: (1) Alternative dispute resolution has been completed in compliance with this article. (2) One of the other parties to the dispute did not accept the terms offered for alternative dispute resolution. (3) Preliminary or temporary injunctive relief is necessary.”   

According to Civ. Code §5925(b)(3), an “enforcement action” includes the “enforcement of the governing documents.”  Here, Plaintiffs seek enforcement of the governing documents of the HOA, or the CC&Rs, which qualifies as an enforcement action subject to Civ. Code  §5950(a).   

Civ. Code  §5950(b) provides that the “failure to file a certificate to subdivision (a) is grounds for a demurrer or motion to strike unless the court finds that dismissal of the action for failure to comply with this article would result in substantial prejudice to one of the parties.”   

  However, participating in ADR is not a condition precedent to all enforcement actions.  Section 5930(b) states: “This section 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 money damages not in excess of the limits stated in Sections 116.220 and 116.221 of the Code of Civil Procedure.”  Sections 116.220 and 116.221 relate to jurisdictional limits of small claims court which allows a natural person to seek monetary relief not to exceed $10,000.  Consequently, participation in ADR is not a prerequisite to an enforcement action that seeks to recover money damages in excess of $10,000. 

Here, Plaintiffs’ complaint seeks money damages in excess of $10,000 and indeed, Plaintiffs claims their damages are expected to exceed $100,000.  (Compl. ¶¶43, 166, 175, 176, 185, 193.)  Because Plaintiffs seek money damages in excess of $10,000, participation in the ADR was not a condition precedent to the filing of Plaintiffs’ complaint, and Plaintiffs were not required to file with their complaint a certification that “[a]lternative dispute resolution has been completed” or that “[o]ne of the other parties to the dispute did not accept the terms offered for the alternative dispute resolution.”  (Civ. Code §5930(b).) 

Plaintiffs seek sanctions in the amount of $4,250 because they argue Defendants’ demurrer is frivolous.  Plaintiffs provide no statutory basis for their request for sanctions, nor do they explain how Defendants’ demurrer meets any statutory requirements for awarding sanctions.  Accordingly, the Court declines to award sanctions.   

CONCLUSION 

Based on the foregoing, the Court OVERRULES Defendants’ demurrer and DENIES Plaintiffs’ request for sanctions.   

 

IT IS SO ORDERED. 

 

DATED: May 19, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court