Judge: Jon R. Takasugi, Case: 22STCV06418, Date: 2023-05-01 Tentative Ruling

Case Number: 22STCV06418    Hearing Date: May 1, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s demurrer is SUSTAINED IN PART, OVERRULED IN PART:

-         Plaintiff’s demurrer is sustained, without leave to amend as to the 1^st, 4^th, 16^th, 17^th, 19^th, 23^rd, 24^th, 27^th, and 28^th causes of action.

-         Plaintiff’s demurrer is sustained, with leave to amend as to the 8^th, 10^th, 11^th, 14^th, 15^th, 22^nd, and 26^th causes of action.

-         Plaintiff’s demurrer is overruled as to the 3^rd, 5^th, 7^th, 9^th, 20^th, 21^st, and 25^th causes of action. 

On 2/18/2022, Plaintiff Pam Krebs (Plaintiff) filed suit against Dorothy St. Homeowners Association (Defendant), alleging: (1) breach of governing documents; (2) breach of fiduciary duties; (3) breach of fiduciary duties; (4) nuisance; (5) negligence; (6) trespass; (7) violation of the Davis-Stirling Act; (8) violation of the Davis-Stirling Act; and (9) declaratory relief.

            Now, Plaintiff demurs to all of Defendant’s affirmative defenses except the second, sixth, twelfth, the thirteenth, and the eighteenth.

Discussion 

            Defendant asserts 28 affirmative defenses in total, 23 of which Plaintiff contends are defective.

            As for the 8^th, 10^th, 11^th, 15^th, 22^nd, and 26^th affirmative defenses, Plaintiff argues these fail as a matter of law because they are either missing factual elements or fail to plead any facts whatsoever in their support.   The Court agrees.

 Defendant’s answer alleges that:

-         Plaintiff failed to initially alert the HOA of the water intrusion. Rather, Plaintiff worked with the other affected unit to remediate the service. During this time, the HOA was unaware of the water intrusion or any alleged bacterial growth. Based on this conduct, Defendant alleges that Plaintiff failed to notify HOA and failed to investigate the presence and cause of such bacteria growth thereby” further delaying the discovery of the underlying water intrusion and, to the extent such delays caused additional damage to Plaintiff’s Unit, represents a failure to mitigate damages.” (Answer ¶ 8.)

-         The insufficiency of the HOA’s reserve funds to cover the anticipated damages was “at least in part, the sole fault and responsibility of Plaintiff as a result of her actions and decisions was during her longtime sole directorship of the Association.” (Answer ¶ 12.) 

-         HOA promptly moved to repair and remediate the cause of the water intrusion and the resulting damage, and contracted with WCP. Plaintiff objected to WCP based on WCP’s failure to obtain permits, and refused to allow them to complete its work. At Plaintiff’s demand, the Association terminated WCP’s involvement and sought to use Plaintiff’s demanded contractor. This created further delays in the completion of the repairs to Plaintiff’s Unit. (Answer ¶ 17.)

-         The Association ultimately agreed to have the work completed by Plaintiff’s proposed contractor, N2 plumbing. It took several months for the Association to receive a bid and estimate from N2, which was finally sent in May 2021. The Association accepted the bid and the repairs were completed by September 2021. (Answer ¶ 18.)

While these facts set forth a timeline of Defendant’s version of events, Defendant’s affirmative defenses must more clearly allege how Defendant contends these facts support the specific affirmative defenses. For example, Defendant’s 22^nd affirmative defense is for offset, but its answer includes no facts which could show how Defendant contends it is entitled to an offset, or what conduct by Plaintiff it believes gives rise to that entitlement. Similarly, Defendant’s 8^th and 11^th affirmative defenses are for consent and waiver respectively, yet is unclear from the answer what conduct or performance Defendant alleges Plaintiff consented to or waived.

As for the 1^st, 3^rd, 9^th, 14^th, 19^th, 20^th, 24^th, 27^th, and 28^th defenses, Plaintiff argues that these are not properly pled because they aren’t actually affirmative defenses, but rather refute portions of Plaintiff’s prima facie case. For example, the 1st affirmative defense is for failure to state a claim, the 19^th defense challenges the entitlement to attorneys fees.

The Court agrees in part. The State Farm court held that where an allegation is “directed to an essential element of a plaintiff’s cause of action, it does not constitute new matter and need not be specifically alleged.” (State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725-726.) Instead, any issue on which the defendant bears the burden of proof at trial is “new matter” and must be specially pleaded in an answer. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

Here, challenges to Plaintiff’s remedies or the sufficiency of the pleadings are properly raised through demurrer, not affirmative defenses. Relatedly, a challenge to an attorney fees request is properly asserted through a motion to strike. However, Defendant’s defenses such as reservation of rights to add more defenses or full performance are properly asserted and sufficiently pled.

As for the 14^th affirmative defense for laches, Plaintiff argues that a 5-day delay cannot constitute a prejudicial delay. However, this is a factual determination which the Court does not engage in at the pleading stage. As such, the Court will not sustain a demurrer to this affirmative defense on this ground.

As for the 5^th, 7^th, 21^st, and 25^th affirmative defenses, Plaintiff argues they are not cognizable because even if all of Defendant’s alleged facts are accepted as true, these defenses still don’t exculpate it from liability.  However, the Court finds these adequately pled at the pleading stage.

Finally, as for the 4^th, 16^th, 17^th, and 23^rd affirmative defenses, Plaintiff argues that the 4^th defense is duplicative of its 2^nd and the 16^th, 17^th, and 23^rd are duplicative of the 6^th affirmative defense and thus all should be stricken. The Court agrees. The 4^th defense reasserts the same rule of judicial defense as the 2^nd defense, i.e., the Business Judgment Rule. Defendant’s 16^th, 17^th, and 23^rd defenses reassert the exact same facts and theory as its sixth defense. All three defenses merely state that third-parties should have to contribute to whatever judgment is entered against the HOA.

Based on the foregoing, Plaintiff’s demurrer is sustained in part, overruled in part:

-         Plaintiff’s demurrer is sustained, without leave to amend as to the 1^st, 4^th, 16^th, 17^th, 19^th, 23^rd, 24^th, 27^th, and 28^th causes of action.

-         Plaintiff’s demurrer is sustained, with leave to amend as to the 8^th, 10^th, 11^th, 14^th, 15^th, 22^nd, and 26^th causes of action.

-         Plaintiff’s demurrer is overruled as to the 3^rd,5^th, 7^th, 9^th, 20^th, 21^st, and 25^th causes of action.  

It is so ordered.

Dated:  May     , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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