Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from a fight at a parking garage.  Plaintiff Shari Goldberg alleges that Cross-Defendant Sena Sumerlin-Halperin assaulted and battered her in the parking garage of The Liddel at 10777 Wilshire condominiums, located at 10777 Wilshire Blvd in Los Angeles (the “Property”).  Defendant The Liddel at 10777 Wilshire HOA (the “Association”) is the homeowners association for the Property.  (First Amended Cross-Complaint (“FACC”) ¶ 1.)  Plaintiff sued the Association for the alleged incident.   

Halperin was the guest of Cross-Defendant Matthew Easter, a member of the Association.  (FACC ¶¶ 6, 7.)  The Association alleges that Halperin and Easter engaged in a verbal altercation with Plaintiff in the Association’s parking garage, concerning alleged erratic driving by Halperin or Goldberg in the parking garage earlier that day.  (FACC ¶ 15.)  The verbal exchange culminated in Halperin assaulting Plaintiff.  (FACC ¶ 16.)  The Association alleges that Easter caused, contributed to and/or provoked the assault by Halperin.  (Id.)   

The Association also alleges Easter’s actions breached the governing documents of the Association.  As a member of the Association, Easter is subject to the Amended Declaration of Covenants, Conditions and Restrictions and Reservation of Easements (“Declaration”).  (FACC ¶ 9.)  The Declaration provides that Association members are responsible for the conduct of their guests.  Section 10.5 of the Declaration states: “Each Owner shall be accountable to the association and other Owner for the conduct and behavior of children and other Family members or person residing in or visiting such Owner’s Unit…” (FACC ¶ 10.)   

The Declaration also provides that any violation of a covenant contained in the Declaration “constitutes a nuisance and every remedy allowed by law or equity against a nuisance, either public or private, shall be applicable against every such result and may be exercised by ... the Association[.]”  (FACC ¶ 11.)   

The Association has filed a cross-complaint against Easter, alleging claims for (1) indemnity, (2) private nuisance, (3) contractual indemnity, (4) breach of governing documents and (5) declaratory relief.   

This hearing is on Easter’s demurrer to the FACC.  Easter argues that (1) Plaintiff’s complaint does not assert any claims against Easter and as a result Easter is not a joint tortfeasor and the Association cannot state an equitable indemnity claim against him; (2) the claim for contractual indemnity fails because the indemnity provisions in the Declaration only apply to circumstances where an owner is renting a unit out to a lessee and Halperin was not a tenant of Easter on the date of the alleged incident; (3) there was no breach of the nuisance provisions in the governing documents because Easter’s actions do not qualify as a nuisance under the law; (4) the declaratory relief claim fails as it is derivative of the claims for equitable and contractual indemnity which Easter claims are legally meritless.  

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).)  Easter has filed the Declaration of Edye Hill which attests Easter’s counsel sent a meet and confer letter requesting a telephone conference on the demurrer to the FACC, but counsel for the Association did not respond.  While these minimal efforts do not comply with the meet and confer requirements, the Court cannot overrule a demurrer based on an insufficient meet and confer.  (Code Civ. Proc., § 430.41(a)(4).)   

LEGAL STANDARD 

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); Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  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 refers to 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.) 

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.) 

ANALYSIS 

 

Equitable Indemnity 

Easter argues that Plaintiff has not sued Easter, and therefore, Easter is not a joint tortfeasor and cannot be liable for equitable indemnity.  (Motion at 8-9.)  The Court disagrees.  It is well-settled that a suit for indemnity can be brought against a concurrent tortfeasor not named by the tort plaintiff in the original complaint.  (Teachers Insurance Co. v. Smith (1982) 128 Cal. App. 3d 862, 865.)   

Easter then argues that he is not a joint tortfeasor because he is not liable for the actions of Halperin, nor did he have a duty to protect Plaintiff from Halperin.  According to Easter, the FACC alleges, at best, that Halperin was a social guest of Easter, but such a relationship is not enough to impose a duty of liability upon Easter for Halperin’s independent actions.  (Motion at 9.)  But Easter misconstrues the FACC.  The FACC does not merely allege that Halperin was the social guest of Easter.  The FACC alleges that Easter “caused, contributed to and/or provoked said assault by [Halperin].”  (FACC ¶ 16.)  For purposes of a demurrer, the Court must accept this allegation as true, and the allegation supports a finding of joint and several liability. 

Easter argues that the allegation he “caused, contributed to and/or provoked said assault by [Halperin]” is a conclusion of law which the Court is not required to accept as true on a demurrer.  The Court disagrees.  The allegation is a statement of an ultimate fact.  Under California law, a pleading is required to assert general allegations of¿ultimate fact.  Evidentiary facts¿are not required.¿ (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47;¿Lim v. The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690.)     

Easter argues that the Association has only alleged a breach of contract which as a matter of law, cannot form the basis for a claim for equitable indemnity.  But the FACC alleges that Easter’s conduct was not only a breach of contract, but also constituted negligence.  (FACC ¶ 22.)  (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1062 (“Treating the negligent breach of a contractual obligation as sufficient to support a claim for¿equitable indemnity¿does not render nugatory the conclusion that such indemnity is available only between joint tortfeasors. Every¿breach of contract¿will not support a claim for indemnity but only those that result from a failure to perform with care, skill, reasonable expedience, and faithfulness.”¿(citing North American Chemical v. Superior Court, supra, 59 Cal.App.4th at 774).)    

Accordingly, the Court overrules the demurrer to the equitable indemnity claim. 

Contractual Indemnity 

Easter argues that the contractual indemnity claim fails because the indemnity provision on which the Association relies is only applicable to owners who lease their units to another.  The Court disagrees.   

Easter argues that the Association relies on Section 14.1.2 of the Declaration which is only applicable to owners who lease their units to another, and there are no allegations in the FACC that Easter leased his unit to Halperin.  Section 14.1.2 states: “Each Owner who leases his or her Unit agrees to indemnify, defend and hold harmless the Association, its officers, directors, employees, invitees and other Owners from any liability arising from the acts and omissions of his or her lessee.  Every Owner who chooses to lease his or her Unit agrees that the leasing Owner shall be held liable for all acts, whether negligent or non-negligent, of his or her lessee.” 

    Easter omits that the FACC also alleges that “the Declaration requires MATTHEW EASTER to be responsible to the ASSOCIATION for the conduct of his guests and invitees, which Association alleges violate the Declaration and Rules and Regulations.”  (FACC ¶ 31.)  Section 10.5 of the Declaration states “Each Owner shall be accountable to the association and the other Owner for the conduct and behavior of children and other Family members or person residing in or visiting such Owner’s Unit ...”  (FACC ¶ 10.)   

Further, Section 19.1.5 of the Declaration states “Failure to comply with any terms of the Restrictions by an Owner, such Owner’s Family, guests, employees, invitees or tenants, shall be grounds for relief which may include, without limitation, an action to recover sums due for damages, injunctive relief, foreclosure of any lien, or any combination thereof …”   

Easter next argues that indemnity provisions are to be strictly construed against the indemnitee and must use specific, unequivocal contractual language to that affect. (Helppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1278.)  Easter seems to be arguing that for contractual indemnity to apply, the clause must actually use the word “indemnify.”  But he cites no case law in support of that argument.  The argument, moreover, was made for the first time in reply.  A party cannot raise arguments for the first time in its reply brief.  (Five Bridges Foundation, 203 Cal.App.4th at 573, fn. 18.)¿ 

Accordingly, there is a contractual basis for the Association’s contractual indemnity claim against Easter, and the Court overrules the demurrer to the contractual indemnity claim. 

Breach of Governing Documents 

Easter argues that there is no breach of the nuisance provisions in the governing documents because Easter’s actions did not constitute nuisance as a matter of law.  Easter’s argument is beside the point.   

The governing documents define nuisance to include any violation of any provision, condition, restriction or covenant in the Declaration.  (FACC ¶¶ 10, 11.)  The Association alleges Easter violated the provisions of the Declaration.  (FACC ¶ 39.)  Therefore, whether or not Easter’s actions constitute nuisance as a matter of law is irrelevant.  Easter breached provisions of the Declaration, which constitutes a nuisance under the governing documents.  

Easter further argues that the governing documents only impose a duty on the offending owner to pay for repairs to the property, and would not cover any personal injuries incurred by Plaintiff.  Easter points to the following language in Section 10.5 of the Declaration: “Any damage to the common area, personal property of the association, or property of another owner caused by such children or other family members shall be repaired at the sole expense of the owner of the unit where such children or other family members or persons are residing or visiting.”   

This language, however, does not limit damages to repair of damaged property.  It merely identifies one specific type of damage to which the offending owner is liable.  It does not say that this is the limit of damages to which the offending owner is liable.  Indeed, Section 19.1.5 of the Declaration provides that the Owner and his guests may also be sued for failure to comply with any terms of the restrictions in the Declaration.  And Section 19.1.1 of the Declaration provides that the Association has the right to recover damages for violations of the restrictions in the Declaration.     

Easter next argues that the Association does not have standing to enforce a breach of the governing documents because it is not an owner, and only owners are allowed to sue for breach.   But Civ. Code § 5980 clearly states that “An association has standing to institute, defend, settle, or intervene in litigation… in matters pertaining to the following: (a) Enforcement of the governing documents.”   

Further, Section 19.1.1 of the Declaration provides that the Association has the right to enforce the Governing Documents against members through litigation:  The Association “shall have the right to enforce by proceedings at law or in equity, all restrictions, conditions, covenants and reservations, nor or hereafter imposed by the provisions of the Restrictions or any amendment thereto, including the right to prevent the violation of any such restrictions, conditions, covenants, or reservations and the right to recover damages or Assessments for such violation …”  

As such, the claim for breach of governing documents is adequately pled, and the demurrer as to that cause of action is overruled.   

Declaratory Relief 

Easter argues that the claim for declaratory relief fails because it is derivative of the indemnity claims to which Easter has demurred.  Because the Court has overruled the demurrer to the indemnity claims, it also overrules the demurrer to the declaratory relief claim. 

CONCLUSION 

Based on the foregoing, the Court OVERRULES Easter’s demurrer to the First Amended Cross-Complaint.   

DATED:  January 31, 2025   ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court