Judge: Gary Y. Tanaka, Case: YC072796, Date: 2023-01-24 Tentative Ruling

Case Number: YC072796    Hearing Date: January 24, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                                       Tuesday, January 24, 2023

Department B                                                                                                                                                Calendar No. 2

PROCEEDINGS

Sabine De Weijer v. Brookside Village Homeowners Association, Inc., et al.

            YC072796

1.      Sabine De Weijer’s Motion for Judgment on the Pleadings

2.      Sabine De Weijer’s Motion to Compel Further Responses to Form Interrogatories, Set One

3.      Sabine De Weijer’s Motion to Compel Further Responses to Requests for Admissions, Set One   

TENTATIVE RULING

Sabine De Weijer’s Motion for Judgment on the Pleadings is granted with 20 days leave to amend.

Sabine De Weijer’s Motion to Compel Further Responses to Form Interrogatories, Set One is denied.

Sabine De Weijer’s Motion to Compel Further Responses to Requests for Admissions, Set One is denied.

Background

Plaintiff filed her Complaint on April 3, 2018.  Plaintiff is the owner of real property located at 605 South Prospect Avenue, Unit 307, Redondo Beach, CA 90277. Her unit is part of a condominium development managed and maintained by Defendant Brookside Village Homeowners Association, Inc. (“HOA”), in accordance with a Declaration of Establishment of Conditions, Covenants and Restrictions (“CC&Rs”).  Plaintiff alleges that Defendant improperly maintained the common areas, as well as areas to which it had a duty to maintain including the attic space and cavity spaces above and adjacent to Plaintiff’s unit, which caused stains and defects to Plaintiff’s unit.  Plaintiff alleged causes of action for: 1. Breach of CC&Rs; 2. Enforcement of Equitable Servitudes; 3. Nuisance; 4. Negligence; 5. Declaratory Relief.

Meet and Confer re: Motion for Judgment on the Pleadings

Plaintiff filed a meet and confer declaration in sufficient compliance with CCP § 439. (Decl., Steven McKany, ¶¶ 2-3.)

Motion for Judgment on the Pleadings

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired.  Code Civ. Proc., § 438, subd. (f).  Except as provided by statute, the rules governing demurrers apply.  Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.  “Judgment on the pleadings is proper when the complaint does not state facts sufficient to constitute a cause of action against the defendant.”  Rolfe v. Cal. Transp. Comm’n (2002) 104 Cal.App.4th 239, 242; see also Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).  “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  Civic Partners Stockton, LLC, supra, 218 Cal.App.4th at p. 1013.  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.”  Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.

Plaintiff moves for judgment on the pleadings in her favor as to the HOA’s Answer as to all affirmative defenses on the ground that each and every affirmative defense failed to plead sufficient facts to constitute a defense.

A defendant must plead ultimate facts rather than conclusions to state viable affirmative defenses.  The allegations must be “averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.”  FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d. 367, 384.  Plaintiff argues that all 39 of the affirmative defenses are devoid of sufficient facts.

A review of Defendant’s affirmative defenses reveals that all 39 affirmative defenses essentially consist of conclusions and/or mere recitations of purported affirmative defenses without any facts being alleged to support the purported affirmative defenses.  In addition, as to some of the purported affirmative defenses, such as affirmative defenses 1,4, 13, 21, and 29, they do not appear to be recognized affirmative defenses, at all.  In addition, the affirmative defenses do not comply with Code Civ. Proc., § 431.30(g) which states: “The defenses shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.”

Therefore, Plaintiff’s Motion for Judgment on the Pleadings is granted with 20 days leave to amend.

Motions to Compel

Where responses to interrogatories have been served but the requesting party believes that they are deficient because the answers are evasive or incomplete, or, because an objection is without merit, that party may move for an order compelling a further response.  CCP § 2030.300(a).  Notice of the motion must be given within 45 days after service of verified responses in question, or any verified supplemental responses.  CCP § 2030.300(c).  The motion must be accompanied by a meet and confer declaration in compliance with CCP § 2016.040.  CCP § 2030.300(b).

Where responses to requests for admissions have been served but requesting party believes that they are deficient because the answers are evasive or incomplete, or, because an objection is without merit, that party may move for an order compelling a further response.  CCP § 2033.290(a).  The motion must be made within 45 days after service of verified responses in question, or any verified supplemental responses.  CCP § 2033.290(c).  The motion must be accompanied by a meet and confer declaration in compliance with CCP § 2016.040.  CCP § 2033.290(b).

Meet and Confer

Plaintiff set forth meet and confer declarations in sufficient compliance with CCP §§ 2030.300, 2033.290, and 2016.040.  (Declarations, Elaine T. Ding.)

Motions to Compel

A notice of motion to compel further responses to interrogatories must be served within 45 days after verified responses, or any verified supplemental responses, were served, unless the parties agree to extend the time. CCP § 2030.300(c). Delaying the motion beyond the 45-day time limit waives the right to compel a further response. Id.; Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685. A motion to compel further responses to requests for admissions must be made within 45 days after service of verified responses, or any verified supplemental responses. Otherwise, the right to compel further responses is waived. CCP §§ 2033.290(c), 2016.050.

Here, the original responses were served on June 16, 2019.  Amended verifications were served on May 4, 2022.  Thus, the 45 day period would run from the date of service of the amended verifications as this may constitute a further response for purposes of the statutes noted above. However, the motions were not filed and served until June 21, 2022. There is no showing by moving party that the verifications served on May 4, 2022 were served by mail.  In fact, the proofs of service of the amended verifications were not attached to the motions.  The 45-day time limit would have lapsed on a Saturday. Thus, the motions were required to be filed and served on Monday, June 20, 2022.  However, the instant motions were filed and served one day late, on June 21, 2022.

Therefore, Plaintiff’s Motions to Compel Further Responses to Form Interrogatories, Set One, and Requests for Admissions, Set One, are denied. In any event, the Court notes that Defendant states that it will provide further responses prior to the hearing dates of these motions.

Both Plaintiff and Defendant’s requests for monetary sanctions are denied.

Plaintiff is ordered to give notice of this ruling.