Judge: Gary Y. Tanaka, Case: YC072796, Date: 2023-04-17 Tentative Ruling

Case Number: YC072796    Hearing Date: April 17, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                                           Monday, April 17, 2023

Department B                                                                                                                                            Calendar No. 10

PROCEEDINGS

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

            YC072796

1.      Sabine De Weijer’s Demurrer to Second Amended Answer  

TENTATIVE RULING

Sabine De Weijer’s Demurrer to Second Amended Answer is sustained without leave to amend.

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.

On January 24, 2023, Plaintiff’s motion for judgment on the pleadings as to Defendant’s Answer was granted with 20 days leave to amend. Defendant filed an Amended Answer on February 14, 2023.  Apparently, after meet and confer efforts, Defendant filed a Second Amended Answer on February 28, 2023.

Meet and Confer

Plaintiff set forth a meet and confer declaration in sufficient compliance with CCP § 430.41.  (Decl., Elaine Ding, ¶¶ 9-12.)

Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)  In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The Court may not consider contentions, deductions, or conclusions of fact or law.  (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action.  (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.)  Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer.  (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer."  (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)  Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.”  Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

A demurrer to an Answer challenges the sufficiency of the factual allegations of the Answer. 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.

Demurrer to Answer

Plaintiff demurs to the seventeenth affirmative defense, entitled “Additional Defenses,” in the Second Amended Answer filed by Defendant Brookside Village Homeowners’ Association, pursuant to Code of Civil Procedure section 430.20(b) on the grounds that Defendant’s 17^th affirmative defense fails to state sufficient facts to constitute an affirmative defense.

First, an affirmative defense to simply reserve the right to assert additional defenses is not a viable affirmative defense.  If additional affirmative defenses are sought to be added, the proper procedural method would be to move for leave to amend.  Second, generally, upon the sustaining of the demurrer, the scope of leave to amend is to amend the existing causes of action (or affirmative defenses) and not to add new causes of action (or affirmative defenses).  See, People ex rel. Dept. of Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.  Addition of a new cause of action (or affirmative defense) may be proper, however, when it “directly responds to the court's reason for sustaining the earlier demurrer.”  Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.  Here, this new affirmative defense was not in response to the Court’s ruling granting Plaintiff’s motion for judgment on the pleadings with leave to amend

Thus, the Demurrer to the seventeenth affirmative defense is sustained without leave to amend.

Plaintiff is ordered to give notice of this ruling.