Judge Gail Killefer, Case Number: 24VECV01848, Date: 2025-02-19 Tentative Ruling

TENTATIVE: Defendant DeNoce’s demurrer to the FAC is overruled. Defendant must file an Answer by March 5, 2025. An OSC Re: Answer is set for March 12, 2025, at 8:30 a.m. and a Case Management Conference is set for the same date and time. Plaintiff to give notice.

On April 23, 2024, the Watergate Property Owners Association (“Plaintiff” or “Watergate”) filed Complaint against Douglas J. DeNoce as an individual and as the trustee of the Savannah N. DeNoce Trust (collectively “Defendant” or “DeNoce”); and Does 1 to 20.

After the demurrer to the Complaint was sustained with leave to amend, Plaintiff filed the operative First Amended Complaint (“FAC”) alleging two causes of action: (1) breach/violation of the association’s CC&Rs and injunctive relief; and (2) declaratory relief.

Defendant DeNoce now demurs to the FAC. Plaintiff Watergate opposes the Motion. The matter is now before the court.

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Exhibit A: The June 21, 2021 Annual Meeting Minutes as produced by plaintiff Watergate Property Owners Association’s (“Watergate”) in related Case No. 23STCV22387, which is Exhibit A to Mr. DeNoce’s declaration.

Exhibit B: The July 6, 2021 Annual Meeting Minutes as produced by Watergate in related Case No. 23STCV22387, which is Exhibit B to Mr. DeNoce’s declaration.

Exhibit C: The March 29, 2022 Notice of Annual Membership Meeting, which is Exhibit C to Mr. DeNoce’s declaration.

Exhibit D: The May 3, 2022 Annual Membership Meeting, including the accompanying Voting Instructions and Election and Voting Rules and Regulations, which is Exhibit D to Mr. DeNoce’s declaration.

Exhibit E: The June 20, 2022 Annual Meeting Minutes, which is Exhibit E to Mr. DeNoce’s declaration.

Exhibit F: The June 19, 2023 Regular Session Minutes, which is Exhibit F to Mr. DeNoce’s declaration.

Exhibit G: The October 24, 2024 Notice of Annual Meeting of Members and Organization Meeting of the Board of Directors, which is Exhibit G to Mr. DeNoce’s declaration.

Exhibit H: The Restated Bylaws of Watergate Property Owners Association, which is attached as Exhibit H to Mr. DeNoce’s declaration.

Defendant DeNoce seeks judicial notice pursuant to Evid. Code § 452(g) and § 452(h). The Meeting notes are not facts or propositions of “such common knowledge” so the court cannot take judicial notice pursuant to Evid. Code § 452(g). The court also fails to find the Meeting notes are judicially noticeable under Evid. Code 452(h) because although their content is not in dispute, the meeting notes are not “capable of immediate and accurate determination” but were instead produced through the regular course of discovery in another related case.

Lastly, Defendant DeNoce seeks judicial notice on the basis that Exhibits A to H are incorporated by reference into the FAC. “Unlike rule-established judicial notice, incorporation-by-reference is a judicially created doctrine that treats certain documents as though they are part of the complaint itself. The doctrine prevents plaintiffs from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken—or doom—their claims.” (Khoja v. Orexigen Therapeutics, Inc. (9th Cir. 2018) 899 F.3d 988, 1002.) California courts have permitted judicial notice of matters referenced in the pleadings. (See Legg v. United Ben. Life Ins. Co. of Omaha (1960) 182 Cal.App.2d 573, 580 [reference to prior judgment in complaint permitted the court to take judicial notice of the prior actions referenced in the pleadings].)

Defendant DeNoce asserts that the Meeting notes are referenced in Paragraphs 12-14 and 16 to 18 of the FAC because they relate to Plaintiff’s governing documents. However, Paragraph 7 is the Paragraph wherein Plaintiff asserts that it has the power to carry out its rights and obligations, which Defendant wishes to bring into question with the Meeting notes. “While the existence of those documents may be judicially noticed, the matters asserted in those documents may not.” (Adams v. Bank of America, N.A. (2020) 51 Cal.App.5th 666, 673–674.)

There are too many unestablished facts to permit the court to take judicial notice of Exhibits A to H. Defendant fails to show that the Bylaws attached as Exhibit H are the current Bylaws and that the Board was not permitted to change the number of votes needed to achieve quorum under the applicable Bylaws. Moreover, on its face, Exhibit A states that 27 ballots received no quorum was obtained but Exhibit B states that with 32 ballots quorum was obtained. Accordingly, the court cannot accept Defendant DeNoce’s interpretation of Exhibit B which asserts that there was no quorum at the July 6, 2021 Annual Meeting because this is in dispute with the facts asserted in Exhibit B. “A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)

Defendant DeNoce also wishes that the court take Judicial Notice of Exhibits C, D, E, and F and find that the Board failed to comply with Civ. Code § 5103 during the 2022, 2023, and 2024 Board elections. Civ. Code § 5103 states in the relevant part “the association may, but is not required to, consider the qualified candidates elected by acclamation if all of the following conditions have been met . . .” Defendant DeNoce asserts that the Board was not exempt from § 5103 because the Board failed to abide by § 5103(e) because meeting agenda failed to reflect “the name of each qualified candidate that will be seated by acclamation if the item is approved.” (Civ. Code, § 5103.) Defendant fails to point to what provision of § 5103(e) renders a Board election void due to failure to comply with all its provisions.

The court cannot judicially notice the Meeting notes and interpret them to find that as a matter of law, the Board Elections were void or that the Board was not Properly Constituted such that no Architectural Committee was elected, and Plaintiff was excused from submitting an application to the Architectural Committee and there was no breach of the Governing Documents.

If Defendant DeNoce wants the court to find Plaintiff’s board elections are void, Defendant must file an action under Civ. Code § 5145 which provides the relief Defendant requests:

(a) A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date that the inspector or inspectors of elections notifies the board and membership of the election results or the cause of action accrues, whichever is later. If a member establishes, by a preponderance of the evidence, that the election procedures of this article, or the adoption of and adherence to rules provided by Article 5 (commencing with Section 4340) of Chapter 3, were not followed, a court shall void any results of the election unless the association establishes, by a preponderance of the evidence, that the association's noncompliance with this article or the election operating rules did not affect the results of the election. The findings of the court shall be stated in writing as part of the record.

(b) A member who prevails in a civil action to enforce the member's rights pursuant to this article shall be entitled to reasonable attorney's fees and court costs, and the court may impose a civil penalty of up to five hundred dollars ($500) for each violation, except that each identical violation shall be subject to only one penalty if the violation affects each member of the association equally. A prevailing association shall not recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation. If a member prevails in a civil action brought in small claims court, the member shall be awarded court costs and reasonable attorney's fees incurred for consulting an attorney in connection with this civil action.

(c) A cause of action under subdivision (a) may be brought in either the superior court or, if the amount of the demand does not exceed the jurisdictional amount of the small claims court, in small claims court.

Unless Defendant DeNoce brings and prevails on a Civ. Code § 5145 claim, the court declines to find as a matter of law that Plaintiff was not a properly constituted Board at the time Defendant breached the Governing Documents. The court cannot take judicial notice of matters that require formal proof. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145.)

Accordingly, Judicial Notice of Exhibits C, D, E, & F is denied. Plaintiff’s objections to Defendant’s request for judicial notice are also sustained.

Demurrer[1]

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (CCP, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainant’s properly pled facts as true and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Defendant DeNoce demurs to 1st and 2nd causes of action on the basis the FAC fails to allege that DeNoce violated the CC&Rs, and that Plaintiff had the authority to act under the CC&Rs.

SECTION 5.01. ARCHITECTURAL APPROVAL: No building, fence, wall, patio cover or other structure shall be commenced or erected upon any unit by any OWNER, nor shall any exterior addition to or change or alteration therein affecting the exterior appearance of a unit be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same have been submitted to the ARCHITECTURAL COMMITTEE, provided for in Section 5.02, and approved in writing by the Board of Directors as to harmony of external design and location and relation to surrounding units and topography. In the event said COMMITTEE or its designated representatives, fails to approve or disapprove such design and location within sixty (60) days after said plans and specifications have been submitted, the improvements shall be deemed to be approve in accordance with said plans.

Section 5 of Watergate’s Rules and Regulations, adopted in 2021 further provides:

5.1. NO MODIFICATIONS OR IMPROVEMENTS OT THE EXTERIOR OF THE UNITS INCLUDING, BUT NOT LIMITED TO ROOFS, FENCES, GATES, DOORS, WINDOWS, GUTTERS, DOWNSPOUTS, PATIO COVERS, SECURITY DEVICES, CAMERAS, ADDITIONAL LIGHTING, AND SATELLITE DISHES SHALL BE PERMITTED WITHOUT SUBMISSION OF REQUIRED FORMS AND WRITTEN APPROVAL OF THE ARCHITECTURAL COMMITTEE/BOARD. Forms requesting architectural changes are available from the Management Company [citation]. Homeowners not submitting an application will be asked to cease work until required forms are submitted and approved and may be subject to a fine and removal of the unapproved modifications at their own expense.

The FAC alleges that Defendant DeNoce violated Section 5.01 of the CC&Rs and the Rules and Regulations (the “Governing Documents”) by “by erecting and installing a video surveillance camera, which is itself attached to a mount on the roof of the Subject Property, on or around March 17, 2023” and failing to remove the cameral despite several written notices. (FAC, ¶¶ 12, 13) It was not until June 9, 2023 that Defendant submitted a “residential improvement application” requesting permission to install the “roof-mounted video surveillance camera at issue.” (Id. ¶ 14.) Plaintiff demanded that Defendant remove the roof-mounted camera, but Defendant has refused, and injunctive relief is necessary to ensure Defendant’s compliance with the governing documents. (Id. ¶ 17.) The FAC further asserts “[t]he Association has performed all obligations required of it and of the Governing Documents, except those obligations that the Association was prevented from or excused from performing due to Defendants’ conduct.” (Id. ¶ 20.)

Defendant’s demurrer attempts to introduce evidence that is not in the complaint and for which the court cannot take judicial notice to assert that Plaintiff invited DeNoce to submit an architectural application for approval. “The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.) “Accordingly, judicially noticeable facts may supersede any inconsistent factual allegations contained in a complaint.” (City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719.)

First, Defendant asserts the FAC fails to allege Plaintiff had a properly constituted Architectural Committee. However, Defendant fails to cite provisions of the Governing Documents where the fact that if the Architectural Committee was not properly appointed by the Board, Plaintiff’s obligations to apply under Sections 5.01 is excused. Moreover, Defendant’s contention that that the Architectural Committee was not properly appointed contradicts the allegations in the FAC, which assert that “Watergate has all the power necessary to carry out its rights and obligations, including the right, duty and power to contract for legal services, adopt rules and regulations in furtherance of the purposes of Watergate, and to prosecute any action to enforce its rights and obligations, including the bringing of this action.” (FAC, ¶ 7.) The FAC also asserts that “All lots within the Development are subject to Watergate’s CC&Rs and Rules and Regulations (“Governing Documents”), and by virtue of their ownership of the Subject Property, which is within the Development, the Defendants agreed to abide by, and is bound by, all terms and conditions of the Governing Documents which run with the land and bind all owners of an interest in the Development.” (Id. ¶ 8.)

Defendant does not deny that he installed the roof-mounted video surveillance camera before seeking permission from Plaintiff’s Architectural Committee. Because Defendant was obligated to first submit an application for approval before installing the camera, Defendant cannot now state that Architectural Committee should be deemed to have approved Plaintiff’s application because it did not act within 60 days. (FAC, Ex. 1, Art. 5, § 5.01.) Submitting an application prior to installing the roof camera was a condition precedent to the Architectural Committee’s approval or denial of the Plaintiff’s application. (FAC, Ex. 1, Art. 5, § 5.01 Ex. 2, § 5.01.) Consequently, Plaintiff “direct[ed] Defendants to remove the camera immediately, and warning that fines may be imposed against them if the violative camera was not removed.” (FAC, ¶ 13.) Defendant fails to point to any provisions in the Governing Documents that required the Architectural Committee to consider any application for architectural changes that had already been installed without committee approval.

Defendant DeNoce’s demurrer to the FAC is overruled. Defendant must file an Answer by March 5, 2025. An OSC Re: Answers is set for March 12, 2025, at 8:30 a.m. and a Case Management Conference is set for the same date and time. Plaintiff to give notice.

[1] Pursuant to CCP § 430.41, the meet and confer requirement has been met. “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (CCP § 430.41(a)(4).) As the failure to meet and confer does not constitute grounds to overrule a demurrer, the court continues to the merits.