Judge: John J. Kralik, Case: 23BBCV00360, Date: 2023-10-20 Tentative Ruling

Case Number: 23BBCV00360    Hearing Date: October 20, 2023    Dept: NCB

 

Superior Court of California

County of Los Angeles

North Central District

Department B

 

 

An ning,

                        Plaintiff,

            v.

 

the villas at moorpark, inc., et al.,

                        Defendants.

 

  Case No.:  23BBCV00360

 

  Hearing Date:  October 20, 2023

 

[TENTATIVE] order RE:

demurrer

 

BACKGROUND

A.    Allegations

Plaintiff An Ning (“Plaintiff”) alleges Plaintiff is the owner of the residence located at 11445 Moorpark Street, Unit 15, Studio City, CA 91602, which is a residence located in Defendant The Villas At Moorpark, Inc. (“Villas”) and is subject to the covenants, conditions, and restrictions (“CC&Rs”).  Plaintiff alleges that Plaintiff was a member of the Board of Directors of the HOA in November 2021 and she discovered on November 2, 2021 through the HOA’s records that the HOA improperly charged its members with common area charges illegally and improperly to all owners as a result of improperly accounting for the square footage of Units 7, 8, and 9; the HOA improperly used funds to install spring isolators for Units 10, 11, and 12 only; the HOA failed to enforce illegal and improper construction for Unit 17; etc.  (See FAC, ¶13(A) to (U).) 

Plaintiff alleges that Villas and Defendant Westcom Property Services, Inc. (“Westcom”) owed Plaintiffs a duty of trust and confidence to Plaintiff and the other members of the HOA to act in their best interests.  (FAC, ¶15.)  Westcom is alleged to be the property manager and managing company of the HOA.  (Id., ¶20.)   

The first amended complaint (“FAC”), filed June 2, 2023, alleges causes of action for: (1) breach of fiduciary duty; and (2) negligence.   

B.     Demurrer on Calendar

On July 24, 2023, Defendants Villas and Westcom (“Defendants”) filed a demurrer to the FAC.  (Although reserved as a demurrer and motion to strike, only a demurrer was filed.)

On October 3, 2023, Plaintiff filed an opposition brief.

On October 12, 2023, Defendants filed a reply brief.

DISCUSSION

            Defendants demur to each cause of action on the grounds that they fail to state sufficient facts to constitute causes of action against it and they are uncertain.

A.    1st cause of action for Breach of Fiduciary Duty

To state a cause of action for breach of fiduciary duty, Plaintiff must allege: (1) the existence of a fiduciary relationship; (2) its breach; and (3) damage proximately caused by that breach.  (Roberts v. Lomanto (2003) 112 Cal. App. 4th 1553, 1562.)  An association has a fiduciary relationship with its members.  (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1558.)  The allegation of a fiduciary relationship must be supported by either contract, or a relationship that imposes it as a matter of law.  (Id.)  Merely alleging that defendant assumed fiduciary duty to plaintiff is a legal conclusion and not a well-pled fact.

Defendants argue that the 1st cause of action fails because they did not owe a fiduciary duty to the HOA members; rather, they argue that the HOA board members owed a fiduciary duty to the collective HOA and a property management company does not owe a fiduciary duty to Plaintiff. 

According to the FAC, Villas is bound by the CC&Rs as the HOA of the residential units.  The 1st cause of action alleges that Defendants each owed a duty of trust to Plaintiff and the HOA members to act in their best interests.  (FAC, ¶15.)  While there may be a plausible basis for a fiduciary relationship between Plaintiff and Villas (HOA) based on the CC&Rs, the allegations do not clearly state that the CC&Rs (or a separate legal basis) provide the foundation for the fiduciary relationship.  However, this is easily remedied upon amendment.  As for Plaintiff’s allegations against Westcom, Plaintiff has not alleged sufficient facts showing that Westcom owed a fiduciary duty to Plaintiff as a managing company and how the fiduciary duty arose.   Further facts should be included upon amendment to establish the fiduciary relationship between the parties. 

Defendants also argue that the FAC is uncertain because it refers to “Defendants” generally and lumps them together without distinction.  With respect to the 1st cause of action, Plaintiff makes allegations against both Defendants.  However, it is not until the 2nd cause of action that Westcom is identified as the property manager and managing company of the HOA.  (FAC, ¶ 20.)  Plaintiff has not alleged facts in the FAC or the 1st cause of action showing how both Defendants owed Plaintiff a fiduciary duty.  This is a ground to sustain the demurrer to the 1st cause of action.

The demurrer to the 1st cause of action is sustained with leave to amend.

B.     2nd cause of action for Negligence

The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.”  (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)  

Defendants argue that the 2nd cause of action for negligence is uncertain for the same reasons discussed above—i.e., there is no differentiation between Villas and Westcom in the allegations. 

The 2nd cause of action alleges that Defendant HOA owed Plaintiff a duty of care to refrain from taking action that would interfere with, injure, or damage Plaintiff or Plaintiff’s property.  (FAC, ¶19.)  (The FAC does not define which entity is the “HOA,” but the Court assumes that the HOA is Villas.)  Plaintiff alleges that Westcom (the property manager and managing company of HOA) owed Plaintiff a duty of care to refrain from taking action that would interfere with, injure, or damage Plaintiff or Plaintiff’s property.  (Id., ¶20.)  Plaintiff alleges that Defendants breached their duties by interfering with the management of the HOA and causing damage to Plaintiff.  (Id., ¶21.)  Plaintiff also alleges that Defendants owed a duty to Plaintiff to ensure that supervision of the CC&Rs were enforced and address failures and unlawful conduct to abate certain activities.  (Id., ¶22.) 

The allegations of the 2nd cause of action are both uncertain and fail to state sufficient facts to constitute a cause of action against Defendants.  The allegations fail to make a distinction between whether the failure to enforce the CC&Rs was a responsibility of both Defendants, as opposed to just Villas who was bound by the CC&Rs.  The FAC does not allege how Westcom had a duty to enforce the CC&R provisions, what duty Westcom actually owed to Plaintiff, and how it breached that duty. 

The demurrer to the 2nd cause of action nis sustained with leave to amend. 

C.     Statute of Limitations

Defendants demur to the FAC, arguing that it is time-barred.  Specifically, Defendants argue that the FAC alleges incidents that occurred over 5 years ago and some allegations do not specify a date when the offending action took place. 

The FAC alleges an incident that occurred on September 17, 2017 for the HOA’s improper use of funds to pay for an emergency water leak for Unit 12.  (FAC, ¶13(G).)  There are also other allegations in paragraph 13 that do not allege a date for when the particular incident occurred.

At this time, the Court overrules the demurrer to the FAC on the basis that it is time-barred.  “In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.”  (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-16.)  Here, while the September 2017 incident may not be actionable, there may still be viable, actionable claims based on later violations that Plaintiff uncovered regarding Defendants’ conduct.  However, as not all the dates were provided, the Court cannot completely dispose of the action as the “defect” regarding the statute of limitations is not clearly and affirmatively apparent on the face of the FAC. 

The demurrer on this basis is overruled.

CONCLUSION AND ORDER

            Defendants The Villas At Moorpark, Inc. and Westcom Property Services, Inc.’s demurrer to the First Amended Complaint is sustained with 20 days leave to amend.   

Defendants shall provide notice of this order.

Warning regarding electronic appearances:  All software for remote or electronic appearances is subject to malfunction based on system weakness and human error, which can originate from any of the multiple parties participating each morning. The seamless operation of the Court’s electronic appearance software is dependent on numerous inconstant and fluctuating factors that may impact whether you, or other counsel or the Court itself can be heard in a particular case. Not all these factors are within the control of the courtroom staff. For example, at times, the system traps participants in electronic purgatories where they cannot be heard and where the courtroom staff is not aware of their presence. If you call the courtroom, please be respectful of the fact that a court hearing is going on, and that the courtroom staff is doing their best to use an imperfect system. If it is truly important to you to be heard, please show up to the courtroom in the normal way. Parking is free or reasonable in Burbank.