Judge: Frank M. Tavelman, Case: 23BBCV00830, Date: 2023-08-11 Tentative Ruling

Case Number: 23BBCV00830    Hearing Date: December 22, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER & MOTION TO STRIKE

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

On April 17, 2023, Ani Aharonyan (“Plaintiff”) filed this action against Adriana Cappellari, Tania Cappellari, Johnhart Real Estate, Argin Nercisian, Rodeo Realty, Samara Saffian, Nick Tatone, and Elmwood Condominium Homeowners Association (“Elmwood HOA) (collectively “Defendants”). Plaintiff alleges Adriana and Tania Cappellari (the “Capellaris”) made false representations and negligently sold her property damaged by water.  Plaintiff alleges that this water damage resulted from Elwood HOA’s failure to maintain the property’s common areas and roof.

Elmwood HOA now demurs to the two causes of action asserted against it, the eighth cause of action for Negligence and ninth cause of action for Breach of Fiduciary Duty. Elmwood HOA demurs on the grounds that Plaintiff’s Complaint states insufficient facts as to these causes of action. Plaintiff opposes and Elmwood HOA replies.

Elmwood HOA also moves to strike those portions of Plaintiff’ Complaint which seek punitive damages against Elmwood HOA. Plaintiff concedes these portions should be struck.

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to Code of Civil Procedure (“C.C.P.”) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)

The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. § 436 (b).)

II.                 MERITS

Meet and Confer

C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds no meet and confer declaration was submitted with Elmwood HOA’s motion to strike or demurrer. Elmwood HOA submits the declaration of counsel Cynthia Mulvihill purporting to comply with C.C.P. § 430.41, however the declaration contains no actual facts or exhibits showing any meet and confer effort was made. Regardless, failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike. (CCP §§ 430.41(a)(4); CCP 435.5(a)(4).) The Court will consider Elmwood HOA’s demurrer despite its non-adherence to the meet and confer requirement but admonishes Elmwood HOA that future failures may result in a continuance so that meet and confer may be ordered.    

8^th COA (Negligence) - OVERRULED

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Elmwood HOA demurs to this cause of action on grounds that the Complaint states insufficient facts. Elmwood HOA argues the Complaint simply alleges water intrusion which occurred while the Capellari’s were the owners of the Subject Property.  This damage was purportedly repaired prior to Plaintiff’s purchase. Thus, Elmwood HOA argues Plaintiff has not sufficiently alleged Elmwood HOA breached its duty to maintain the roof of the Subject Property.

Plaintiff counters that Elmwood HOA misstate the Complaint’s factual allegations.  Plaintiff asserts the water intrusion are not limited to the pre-purchase leak repair. Plaintiff argues the Complaint contains allegations of ongoing water intrusion because of Elmwood HOA’s failure to maintain common areas as per the CC&Rs. Plaintiff argues that Elmwood HOA remains liable for ongoing water damage which occurred as a result of Elmwood HOA’s failure to maintain and repair.

Elmwood HOA argues that facts alleged are insufficient to support a breach of duty but does challenge the existence of a duty. As a result, if the Complaint is found to contain sufficient allegations as to Elmwood HOA’s failure to maintain the Subject Property’s common areas while Plaintiff was in possession, there would be insufficient grounds for demurrer. The Court finds that these allegations are indeed present in the Complaint.

The Complaint alleges there are numerous persistent and ongoing water intrusion issues throughout the Subject Property. (Compl. ¶ 37.) Plaintiff alleges that the sellers of the Subject Property went to extraordinary lengths to conceal the nature of this ongoing damage. (Compl. ¶ 38.) Further, Plaintiff alleges the leak which was purportedly fixed by Elmwood HOA prior to purchase was not fixed at all and remains an issue. (Compl. ¶ 39.) It is clear from Plaintiff’s allegations that there are multiple continuous intrusions of water into the Subject Property which they allege resulted from Elmwood HOA’s negligence post-purchase. Plaintiff’s Complaint is not limited to the singular intrusion which was purportedly fixed prior to purchase.

Accordingly, the demurrer to the eighth cause of action for negligence is OVERRULED.

9^th COA (Breach of Fiduciary Duty) - OVERRULED

Elmwood HOA’s argument as to this cause of action mirrors that of its argument in the eighth cause of action. Elmwood HOA again argues that the Complaint contains insufficient facts as to Elmwood HOA’s failure to repair while Plaintiff owned the Subject Property. As stated above, the Court finds such facts were alleged. Accordingly, the demurrer to the ninth cause of action is OVERRULED.

Motion to Strike – GRANTED

Plaintiff concedes the merits of Elmwood HOA’s motion to strike punitive damages. Accordingly, the motion to strike punitive damages is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Elmwood Condominium HOA’s Demurrer came on regularly for hearing on December 22, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER TO THE EIGHTH AND NINTH CAUSES OF ACTION ARE OVERRULED.

THE MOTION TO STRIKE PUNITIVE DAMAGES IS GRANTED WITHOUT LEAVE TO AMEND.

ELMWOOD HOA HAS 30 DAYS IN WHICH TO FILE A RESPONSIVE PLEADING.

CASE MANAGEMENT CONFERENCE CONTINUED TO MARCH 19, 2024 AT 9:00 A.M.

UNLESS ALL PARTIES WAIVE NOTICE, ELMWOOD HOA TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 22, 2023                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles