Judge: Edward B. Moreton, Jr., Case: 23SMCV03788, Date: 2023-11-30 Tentative Ruling

Case Number: 23SMCV03788    Hearing Date: November 30, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

This case arises from a dispute between a homeowner and a homeowners’ association.  Defendant 404 San Vicente Boulevard Homeowners Association (the “HOA”) governs a 28-unit building located at 504 San Vicente Boulevard in Santa Monica California (the “Property”).  Plaintiff owns Unit 202 of the Property (the “Unit”).  (Compl. ¶7.) 

The Declaration of Covenants, Conditions and Restrictions (“CC&R’s”) for the Property obligated the HOA to maintain, repair, restore and make necessary improvements to the common area so that “they are at all times in a first-class condition and good state of repair, including without limitation, all exterior building surfaces.”  (Id. ¶9.)  Plaintiff has the right to sue the HOA to seek to enforce the CC&R’s.  (Id.) 

Plaintiff alleges that a water leak occurred in December 2021, causing damage to the drywall, heating system and hardwood floors at Plaintiff’s unit.  (Id. ¶10.)  Plaintiff alleges the “HOA admitted that its own negligent failure to conduct regular and customary maintenance of the Common Area gutters caused the substantial damage to the Unit” and the HOA agreed to pay the repairs at its own expense.  (Id. ¶11.)   

Plaintiff goes on to allege that the HOA did not repair her unit, and after eight months, Plaintiff “had no choice but to seek to begin repair efforts herself at her own expense.”  (Id. ¶13.)  Plaintiff alleges that the HOA engaged in improper efforts to prevent Plaintiff from repairing her unit.  (Id. ¶16.)  Plaintiff claims that the damage to the Unit caused her to seek alternative housing while the repairs were being made.  (Id. ¶13.)   

The operative complaint alleges four claims for (1) damages for breach of the CC&R’s, (2) negligence, (3) breach of fiduciary duty, and (4) financial elder abuse. 

As to the financial elder abuse claim, Plaintiff alleges she is an elder as defined by the California Welfare and Institutions Code § 15610.27 (Id. ¶32), and that “Defendants perpetrated ‘financial abuse’ as defined by California Welfare and Institutions Code § 15610.30 … [by] taking, appropriating, obtaining and/or retaining personal property in the form [of] funds owing to [Plaintiff] under CC&R’s as a result of the HOA’s negligence for a wrongful use and/or with intent to defraud.”  (Id. ¶32)

This hearing is on the HOA’s demurrer to the financial elder abuse claim.  The HOA argues the claim is fatally uncertain as to what funds are owed to Plaintiff under the CC&R’s and Plaintiff has not alleged facts to support that any funds are due and owing to her from Defendants. 

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.)          

A demurrer to a complaint may be general or special.  A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)  A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).)  The term uncertain includes the issue of whether the pleading is “ambiguous and unintelligible.”  (Id.)  A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

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.)

MEET AND CONFER

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Defendant submits the Declaration of Philip C. Zvonicek, which shows the parties met and conferred by email and by phone.  This satisfies the meet and confer requirements of Code Civ. Proc. § 430.41.

DISCUSSION

The elements of a financial elder abuse claim are: (1) defendant took, hid, appropriated, obtained or retained plaintiff's property or assisted in same; (2) plaintiff was 65 years of age or older at the time of the conduct; (3) defendant did so for a wrongful use or with the intent to defraud or by undue influence; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm.  (CACI 3100; Welf. & Inst. Code § 15610.30, subd. (a).)

Here, Plaintiff has not alleged how the HOA took, hid, appropriated or retained Plaintiff’s property.  Rather, Plaintiff alleges certain terms of the CC&R’s obligated the HOA to repair and maintain the common areas of the Property, and because the HOA failed to do so, Plaintiff must now repair the water damage using her own funds.  These facts do not support a claim for financial elder abuse.  There is no allegation that the HOA took Plaintiff’s monies.        

CONCLUSION

            For the foregoing reasons, the Court SUSTAINS the demurrer with leave to amend.    

DATED:  November 30, 2023                                            ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court