Judge: H. Jay Ford, III, Case: 24SMCV000621, Date: 2024-12-08 Tentative Ruling

Case Number: 24SMCV000621    Hearing Date: December 8, 2024    Dept: O

 Case Name:  Lewensztain, et al. v. El Camino Townhouses Owners Association

SUBJECT:                 DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendant Karamali Mohammad Pashmforoosh

RESP. PARTY:         Plaintiffs Miriam Lewensztain and Shlomo Kattan  

TENTATIVE RULING

            Defendant Karamali Mohammad Pashmforoosh’s Demurrer to the 1^st, 3^rd, 4^th, and 5^th causes of action in Plaintiffs Miriam Lewensztain and Shlomo Kattan s’ Complaint is OVERRULED.

            Defendant Karamali Mohammad Pashmforoosh’s Motion to Strike is DENIED.

            Plaintiffs RJN is GRANTED. The Court “may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 755, as modified on denial of reh'g (Apr. 16, 2013)

REASONING

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E428.50Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

I.                1^st cause of action for Breach of Governing Documents (CC&R’s)—OVERRULED

The essential elements of 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." (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)

“Unless they are unreasonable, the CC & R's in the declaration governing a common interest development may be enforced as equitable servitudes and as covenants running with the land.” (Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1384.) “The CC & R's benefit and bind the owners of all separate interests in the project. Unless the declaration provides otherwise, CC & R's may be enforced by any owner of a separate interest, by the association or by both.” (Ibid., citing Civ. Code, § 1354, subd. (a).) “A party who is damaged by a violation of the CC & R's may seek money damages.” (Id., at p. 1385.)

            “The governing documents of a homeowners association are enforceable in a civil action by a homeowner or by the association.” (LNSU #1, LLC v. Alta Del Mar Coastal Collection Community Association (2023) 94 Cal.App.5th 1050, 1082, review denied (Dec. 13, 2023).) The Davis Stirling Act, codified in Civ. Code §§ 5145, et seq, states “[a] member of an association may bring a civil action for declaratory or equitable relief for a violation of this article . . ., ” and  (Civ. Code, § 5145, subd. (a); see also Civ. Code § 5235, subd. (a) [“A member may bring an action to enforce that member's right to inspect and copy the association records.”].)

            A Member of a homeowners association “means an owner of a separate interest.” (Civ. Code, § 4160.)  Tenants, or non-homeowners, within an HOA community are not considered owners of a separate interest and thus have no standing to bring a suit under the Davis Stirling Act. (See Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1036 [“the right of enforcement is inextricable from ownership of real property—a parcel, a lot—in a planned development . . . and, thus, cannot be assigned absent a transfer of ownership of the parcel to which it applies.]

Defendant Karamali Mohammad Pashmforoosh (“Defendant”) demurs to the first cause of action in Plaintiffs Miriam Lewensztain and Shlomo Kattan (“Plaintiffs”) Complaint for Breach of Governing documents, or CC&R’s, arguing Plaintiffs do not plead standing. Defendant argues that per the CC&R’s Plaintiffs can only plead standing if Plaintiffs are an association, and cannot plead standing by just alleging Plaintiffs are members of the HOA. Defendant cites to the specific Sections of the CC&R’s in Article II, §§ 2(j) and 2(m), attached the Complaint as Exhibit A. (See Compl., Ex. A, Article II, §§ 2(j) and 2(m).)

The Court is not persuaded. The CCR’s state, “The Provisions of this declaration shall be enforceable by any of the owners of an interest in the real property above described against any other owner or owners thereof, . . .” (Compl., p. 15; Ex. A at p. 2.) Additionally, Civ. Code § 5975 allows any owner within an HOA community to bring suit against another owner, or against the association, or both, to enforce the governing documents. (See Civ. Code. § 5975, subd. (a).) Thus, by statute, and possibly by the CC&R’s, Plaintiffs have standing as an HOA member to bring suit against another HOA member for breach of governing documents.

Plaintiffs plead the existence of the CC&R’s, or HOA governing documents, and provide a copy of the alleged CC&R’s attached to the Complaint. (Compl., ¶¶ 11,12; Ex. A.) Plaintiffs plead that both Plaintiffs and Defendant are members of the HOA, and thus standing to bring the case. (Id., ¶¶ 4, 11.) Plaintiffs plead that Defendant is an agent of the HOA since the HOA hired Defendant to carry out the re-roofing and storm drain projects at issue. (Id., ¶¶ 13–21, 38 39.) Plaintiffs plead they repeatedly requested the HOA repair the roof, the HOA ignored their requests, “water continued to flood the property during periods of rain,” and Plaintiffs “began water and mold remediation in the Property.” (Id., ¶¶ 24–26.) Plaintiffs plead that Defendants breached the governing documents by damaging “the common area through negligent re-roofing.” (Id., ¶¶ 43–44. Plaintiffs plead resulting damages. (Id., ¶ 45.)

Thus, Plaintiffs have plead a claim for Breach of Governing Documents as to Defendant. Defendant’s demurrer to the 1^st cause of action is OVERRULED.

II.             3^rd cause of action for negligence—OVERRULED

“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.)

Plaintiffs allege Defendant owed a legal duty “owed a duty to [Plaintiffs] to build improvements according to plans and specifications in a good and workmanlike manner,” and Defendant “breached that duty when the roofing work allowed flooding into the Property . . . . result[ing] in significant water damage to the Property, as well as to personal property.” (Compl., ¶¶ 13–23, 55.) Plaintiffs plead Defendant’s “breaches were, jointly or severally, the proximate or legal cause of the injury to” Plaintiffs. (Id., ¶¶ 55–56.) Plaintiffs have plead all the necessary elements of negligence as to Defendant.

Defendant’s Demurrer to the 3^rd cause of action is OVERRULED.

III.           4^th cause of action for nuisance—OVERRULED

The elements of a private nuisance claim are as follows: “First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176. reh'g denied (Oct. 25, 2022), review denied (Jan. 18, 2023).)

A nuisance includes: “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)

Discharges of water on to a plaintiff’s property can be held as a nuisance and a trespass. (See Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1136 [“the city's discharge of water on to plaintiff's property was held to be both a trespass and a nuisance.”].)

            Plaintiffs successfully pleads a claim for private nuisance as to Defendant. Plaintiffs plead that leaks from the common area roof and storm drain substantially and unreasonably interfered with the use and enjoyment of their property. (Compl., ¶¶ 59–60.) Plaintiffs allege Defendant’s “shoddy repairs caused Plaintiff to suffer actual damage from the alleged nuisance. (Id., ¶ 13–24, 61, 62.)

            Defendant’s demurrer to the 4^th cause of action is OVERRULED.

IV.           5^th. Cause of action for trespass—OVERRULED 

Trespass is the “unlawful interference with possession of property.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.4th 245, 261.) 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. (See id. at p. 262, citing CACI No. 2000.)

Discharges of water on to a plaintiff’s property can be held as a nuisance and a trespass. (See Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1136 [“the city's discharge of water on to plaintiff's property was held to be both a trespass and a nuisance.”].)

Plaintiffs allege Plaintiffs own the property at issue. (Compl., ¶ 11.) Plaintiffs allege Defendants negligently and continuously allowed water to enter into the Plaintiffs’ Home without permission (Id., ¶¶ 12–23, 64–65.) Plaintiffs allege they were harmed by the water intrusion. (Id., ¶¶ 28–31.) Plaintiffs allege Defendant’s conduct was a substantial factor in causing the harm. (Id., ¶¶ 12–23, 64–65.)

V.              Motion to Strike prayer for attorneys’ fees and civil penalties—DENIED

Defendant moves to strike Plaintiffs prayer for attorneys’ fees under the Davis-Stirling Act and civil penalties under Civ Code 5235.

“The Davis-Stirling Common Interest Development Act (Davis-Stirling Act or the Act) governs an action to enforce the recorded CC&Rs of a common interest development. (§§ 4000–6150 [formerly §§ 1350–1376].) Section 5975 provides that CC&Rs may be enforced as equitable servitudes, unless unreasonable, and “[i]n an action to enforce the governing documents [of a common interest development], the prevailing party shall be awarded reasonable attorney[ ] fees and costs.” (§ 5975, subd. (c); see id., subd. (a).) The prevailing party is entitled to attorney fees “ ‘as a matter of right’ ” and the trial court is “ ‘obligated to award attorney fees ... whenever the statutory conditions have been satisfied.” (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 590.) It is understood that an action to enforce governing documents covers breach of governing documents claims at issue here. (See generally Martin, supra, 173 Cal.App.4th 1024.)

Civ Code 5235 states the following:

A member may bring an action to enforce that member's right to inspect and copy the association records. If a court finds that the association unreasonably withheld access to the association records, the court shall award the member reasonable costs and expenses, including reasonable attorney's fees, and may assess a civil penalty of up to five hundred dollars ($500) for the denial of each separate written request.

(Civ. Code, § 5235, subd. (a), emphasis added.)

            The Davis-Stirling Act allows the prevailing party in an action to enforce CC&R’s  to collect attorneys’ fees. Plaintiff has properly plead an action to enforce the CC&R’s as to the Defendant and thus a prayer for attorneys’ fees is proper.

            Plaintiff includes the prayer for civil penalties as to Defendant El Camino Townhouses Owners Association (“El Camino”), and not the demurring Defendant here. Plaintiff pleads a sixth cause of action for Violation of Civil Code Section 5200 as to El Camino and DOES 1–20 only, which carries a civil penalty of up to $500 “for the denial of each separate written request. (See Civ. Code, § 5235, subd. (a),) Thus, Plaintiff is permitted to plead a prayer for a civil penalty as to the 6^th cause of action for El Camino.