Judge Gail Killefer, Case Number: 23STCV28585, Date: 2025-04-04 Tentative Ruling

TENTATIVE: Defendant’s demurrer to the 2nd, 3rd, 4th, 5^th, and 6th causes of action is sustained without leave to amend. Arroyo One is dismissed from the action. Defendant to give notice.

On November 21, 2023, 482 S. Arroyo, LLC (“Plaintiff”) filed a Complaint against 496 Arroyo Owners’ Association, Denong Tea, Inc.; Radi Rassam dba Arroyo One; and Does 1 to 10.

The Complaint alleges eight causes of action for (1) Conversion, (2) Trespass, (3) Negligence, (4) Breach of CC&Rs, (5) Breach of Fiduciary Duties, (6) Private Nuisance, (7) Declaratory Relief, and (8) Injunctive Relief.

On August 2, 2024, Defendant Deong Tea filed a Cross-Complaint against Plaintiff, Defendant 496 Arroyo Owners’ Association, and Roes 1 to 10. On March 25, 2025 Defendants Deong Tea. Inc. was dismissed from this action, as was the Cross-Complaint.

On October 15, 2024, Plaintiff dismissed the first cause of action for conversion.

On October 21, 2024, Plaintiff amended the name of Defendant “Fadi Rassman dba Arroyo One” to “Arroyo One Properties LLC” (hereinafter “Arroyo One” or “Defendant”).

Defendant Arroyo One now demurs to the 2nd, 3rd, 4th, 5^th, and 6th causes of action in the Complaint. The Proof of Service attached to the Demurrer shows Plaintiff was electronically served yet no opposition has been filed. A reply has also not been filed.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP, § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿ For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

Demurrer[1]

“The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)

Defendant Arroyo One asserts that the trespass cause of action fails because Plaintiff does not have exclusive control or ownership of the parking spots at issue. The Complaint states:

“The Condominium Plan, attached hereto as Exhibit 2, specifically provides that areas designated as ‘F’ followed by an ‘0’ and a number are exclusive use common areas for exclusive use of the commercial/office units, to be used in common with all the other commercial/office units.” (Compl., ¶ 15 [italics added].)

Accordingly, Defendant asserts he had the right to use the parking spots at issue. The demurrer is sustained without leave to amend due to Plaintiff’s failure to oppose the demurrer.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [internal quotations omitted].) “A duty may arise through statute, contract, or the relationship of the parties.” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914, 920 [internal quotations and citations omitted].) The existence of a legal duty is a question of law for the court to decide. (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 265.) “However, the elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination.” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.)

Defendant demurs to the third cause of action on the basis that the Complaint fails to state that Defendant, rather than the HOA, owes a duty of care to Plaintiff. Moreover, the Complaint alleges breaches by the HOA premised on the HOA obligations under CC&Rs, meaning the breaches do not arise out of independent duty but out of a contractual obligation (Compl., ¶ 38.) Accordingly, the economic loss rule does not permit Plaintiff to recover tort damages from contract claims. (See Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal. 4th 979, 989.)

The elements of a claim for breach of contract are: “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.) In addition, the complaint must demonstrate damages proximately caused by the breach. (St. Paul Ins. v. American Dynasty (2002) 101 Cal.App.4th 1038, 1060.) Furthermore, “the complaint must [also] indicate on its face whether the contract is written, oral, or implied by conduct.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-59 citing CCP § 430.10(g).)

The Complaint alleges the HOA and Board of Directors had to enforce the “governing documents by not uniformly and properly enforcing its provisions (including, but not limited to, Articles V, VI, X, XI, and XII), and by failing to investigate claims made by PLAINTIFF and assist in rectifying issues including but not limited to the longstanding issues with the parking, thereby breaching the CC&Rs.” (Compl., ¶ 44, Ex. 3.) “In connection with the HOA's breach, PLAINTIFF seeks monetary damages (including lost use related to the parking spaces and delay damages related to the HOA's inequitable handling of PLAINTIFF's construction plans) as well as an injunction to compel the HOA to enforce the provisions of the CC&Rs, Second Amendment and all governing documents.” (Id. ¶ 46.)

Defendant demurs to the fourth cause of action on the basis that the Complaint fails to allege what specific provisions of the CC&Rs Defendant breached, and what damages Plaintiff suffered due to said breach. ¿“[A]ll essential elements of a breach of contract cause of action [] must be pleaded with specificity.”¿(Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5.)

The court also finds that the breach of contract claim is ambiguous and uncertain. Each Article in the CC&Rs contains various sections and subsections imposing different duties on the HOA and the Board, such that mere references to the Articles breached fail to provide sufficient notice of the breaches or the resulting damages. The court sustains the demurrer to the breach of contract action without leave to amend.

"The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 395.) A fiduciary relationship is “any relation existing between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith for the benefit of the other party.” (Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1338.) “Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another.” (Ibid.) “[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.” (Ibid.)

The Complaint fails to allege what specific provision of the CC&Rs imposed on Defendant a duty to act as a fiduciary to Plaintiff and what specific duty was breached by Defendant. Accordingly, the demurrer to the fifth cause of action is sustained without leave to amend.

The essence of an action for private nuisance is a substantial, unreasonable interference with the plaintiff’s use and enjoyment of his property. (See Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263.)

The Complaint alleges that Plaintiff’s free use and enjoyment of the property was interfered with due to Arroyo One intentionally obstructing Plaintiff’s free use of the sparking area designated as F-0-1. (Compl., ¶¶ 61, 60.) However, as Defendant points out, the Complaint alleges that area “F-0-1” is an area “used in common with other commercial/office units.” (Id. ¶ 15 [underline in original].) Accordingly, Defendant’s use of area F-0-1 is not prohibited and the Complaint fails to show how the use of said area creates a substantial and unreasonable interference with Plaintiff’s use of the area.

Defendant’s demurrer to the 2nd, 3rd, 4th, 5^th, and 6th causes of action against Arroyo One is sustained without leave to amend. Arroyo One is dismissed from the action. Defendant to give notice.

[1] Pursuant to CCP §§ 430.41 and 435.5(a), the meet and confer requirement has been met. (Sortino Decl., ¶¶ 2, 3, Ex. E.)