Judge: Linda S. Marks, Case: 2021-01211830, Date: 2022-10-03 Tentative Ruling
1. Demurrer to Amended Complaint
2. Motion to Strike filed by Andrea Hyland on 11/30/21
3. Demurrer to Amended Complaint
4. Motion to Strike filed by Los Verdes Homeowners Association on 12/22/21
5. Case Management Conference
Defendants Andrea Hyland (“Hyland”) and Los Verdes Homeowners Association (the “HOA”) separately demur to the First Amended Complaint (FAC) of Plaintiff Nora Caballero (“Plaintiff”). Hyland contends that the Nuisance and Breach of Contract causes of action against her fail to state sufficient facts. The HOA contends that the Trespass and Breach of Contract causes of action against it also fail to state sufficient facts. Hyland also moves to strike Plaintiff’s claim for punitive damages and the HOA moves to strike Plaintiff’s claim for costs of repair and attorneys’ fees in connection with her trespass claims.
As an initial matter, the Court notes that Hyland failed to properly meet and confer prior to filing her Demurrer and Motion to Strike. A party filing a demurrer or motion to strike is required to meet and confer in person or by telephone with the party who filed the pleading, pursuant to Code of Civil Procedure sections 430.41(a) and 435.5(a). Although the Court could continue the Demurrer and Motion to Strike to require the parties to meet and confer, the Court will exercise its discretion to consider the Demurrer and Motion to Strike now. The Court admonishes counsel that any future failure to comply with all applicable laws or rules may result in the motion or demurrer being taken off calendar or denied, if appropriate.
Hyland’s Demurrer
Nuisance
Hyland first demurs to Plaintiff’s third cause of action for Nuisance on the ground that it fails to state facts sufficient to constitute a claim and is uncertain.
Plaintiff alleges that Hyland is the trustee of the Andrea Hyland Family Trust, which is the owner of a residential unit of real property located at 9 Avenida Daroca, Coto De Caza, California 92679. (FAC, ¶ 5.) Hyland has a right to exclusive use area appurtenant to her property, including a portion of Common Area, as defined under the HOA’s Covenants, Conditions and Restrictions (“CC&Rs”) immediately adjacent to Plaintiff’s property. (FAC, ¶ 5.) At a point unknown to Plaintiff, Hyland constructed a planter and installed vegetation and an irrigation system immediately adjacent to a Common Area wall just outside of Plaintiff’s home. (FAC, ¶ 5.) The planter was installed without proper waterproofing or drainage and caused water to leak into Plaintiff’s property nearly every time it rained or Hyland irrigated the planter. (FAC, ¶ 28.) In June 2018, Plaintiff discovered that the water intrusion from Hyland’s planter was causing severe damage to her home, including substantial infestation of mold. (FAC, ¶ 28.) Hyland’s use of her exclusive use area and the construction and maintenance of the planter constitutes a nuisance under Civil Code section 3479, in that it has caused and continues to cause substantial damage to Plaintiff’s property and resulted in severe adverse health consequences and emotional distress. (FAC, ¶ 29.)
Civil Code section 3479 states: “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.”
Hyland contends that Plaintiff’s allegations are based on mere speculation and fail to state any factual allegations as to acts by Hyland that amount to nuisance. Hyland cites to Section 3.4 of the CC&Rs, which reads:
Nuisances. “No Unit, entry area, driveway, balcony, patio, backyard or other part of the Project shall be used in such manner as to unreasonably obstruct or interfere with the enjoyment of other Residents or to annoy them by unreasonable noises or otherwise, nor shall any nuisance or immoral or illegal activity be committed or permitted to occur, nor any noxious or offensive activity be carried on upon the Property, nor shall anything be done or kept an or in the Common Area or any Unit, driveway, balcony, patio or backyard that could result in an increase in the Association’s insurance premiums or the cancellation of insurance covering any part of the Project.
The Court finds that, under both Civil Code section 3479 and the CC&Rs, Plaintiff has adequately pled a cause of action for nuisance against Hyland. Plaintiff alleges that Hyland’s installation and maintenance of an improperly waterproofed planter has caused damage to her health and home. The Court holds that these allegations, which the court at this stage must take as true, demonstrate that Hyland’s conduct has been injurious to Plaintiff’s health and unreasonably obstructed or interfered with her enjoyment of property, and therefore support a nuisance claim.
Tentative Ruling: Hyland’s Demurrer to the Nuisance cause of action is OVERRULED.
Breach of Contract
Second, Hyland demurs to the Breach of Contract cause of action against her, arguing that California law makes it clear that a breach of CC&Rs is not a breach of contract. She argues that CC&Rs are an equitable servitude and are enforceable without resorting to a breach of contract cause of action. Further, Hyland contends that Plaintiff has not alleged the essential element that she has performed under the CC&Rs or was otherwise excused from performance.
As to Hyland’s first argument, she cites to Franklin v. Marie Antoinette Condominium Owners Assn. (1993) 19 Cal.App.4th 824. Nothing in Franklin, however, supports the proposition that CC&Rs are not enforceable as contracts. In fact, the Franklin court’s entire analysis dealt with whether an exculpatory clause in the CC&Rs at issue there barred the plaintiff’s cause of action for breach of contract. (Id., at pp. 828-834.) Therefore, Hyland’s argument has no merit. Plaintiff is correct that courts routinely deem CC&Rs to be contracts. (See Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 240 [collecting cases].)
As for Hyland’s contention that Plaintiff has not alleged her own performance under the CC&Rs, the Court finds that this argument also fails.
Plaintiff alleges she requested that the HOA enforce the CC&Rs relating to the nuisance-causing planter and related improvements by Hyland, but the HOA failed to do so. (FAC, ¶ 37.) Section 13.1 of the CC&Rs states that when the HOA fails to enforce the CC&Rs after being requested to do so, the requesting party may bring an action to enforce the CC&Rs against any Owner. (FAC, ¶ 38.) These allegations demonstrate that Plaintiff performed under the CC&Rs prior to bringing her action against Hyland.
Lastly, Hyland contends that the provisions in the CC&Rs cited by Plaintiff are not applicable and fail to establish any breach by Hyland. The Court also disagrees with this argument.
Plaintiff has alleged that Hyland’s planter has caused significant damage to Plaintiff’s property, including the infestation of mold, and damage to Plaintiff’s health. (FAC, ¶¶ 28-29.) As discussed above, Section 3.4 of the CC&Rs states that “No Unit, entry area, driveway, balcony, patio, backyard or other part of the Project shall be used in such manner as to unreasonably obstruct or interfere with the enjoyment of other Residents or to annoy them by unreasonable noises or otherwise[.]” (FAC, Ex. A, at p. 11.) The Court finds that Plaintiff’s allegations regarding the planter installed and maintained by Hyland are sufficient to state a cause of action for breach of contract against Hyland.
Tentative Ruling: Hyland’s Demurrer to the Breach of Contract cause of action is OVERRULED.
The HOA’s Demurrer
Trespass
The second and sixth causes of action are for Trespass. Under the second cause of action, Plaintiff alleges that in or about April 2020, the HOA negligently entered or caused a contractor to enter Plaintiff’s property to perform mold remediation and repairs. (FAC, ¶ 22.) The HOA inexplicably stopped work and failed to complete the job, leaving the property uninhabitable to this day. (Ibid.) The HOA exceeded Plaintiff’s permission. (FAC, ¶ 23.) Under the sixth cause of action, Plaintiff alleges that Defendants, including the HOA, caused and continues to cause water to enter Plaintiff’s property without her permission. (FAC, ¶ 46.)
The HOA argues that both Trespass causes of action are uncertain and fail to state sufficient facts because they are based on the same allegations as the cause of action for Breach of Contract and, under Sands v. Walnut Gardens Condominium Assn. Inc. (2019) 35 Cal.App.5th 174, they should be subsumed by that latter claim.
In Sands v. Walnut Gardens Condominium Assn. Inc. (2019) 35 Cal.App.5th 174, the plaintiffs owned a unit within a condominium development. A pipe on the roof broke and caused water damage to their bedroom. The plaintiffs sued the association for breach of contract and negligence, claiming that the association failed to perform preventative maintenance and their roof and pipes had not been inspected or maintained in years. (Id., at p. 176.) The contract required that the association keep the project in “first class condition.” (Ibid.) The plaintiffs had a viable breach of contract claim because reasonable jurors could have found the failure to maintain common areas was a breach of that promise. (Ibid.) However, the nonsuit of the negligence claim was affirmed. The plaintiffs conceded their evidence for negligence was the same as for the contract claim. (Id., at p. 177.) The association had no independent duty as to the pipes and roof arising from tort law and outside of the CC&Rs. (Ibid.)
When reading the Complaint as a whole, the Court agrees that the sixth cause of action for Trespass against the HOA is based on the same allegations as Plaintiff’s Breach of Contract claim. Plaintiff alleges that the HOA has allowed the water intrusion to enter her property by failing to enforce Sections 3.4, 3.13, and 4.1 of the CC&Rs against Hyland by allowing Hyland to maintain the planter. (FAC, ¶ 16.) Her Trespass cause of action against the HOA is based on the same alleged fact: that the HOA failed to enforce the CC&Rs against Hyland, allowing the water intrusion. Under these allegations, the Trespass cause of action is subsumed by the Breach of Contract cause of action.
The Court rejects the HOA’s argument as to the second cause of action for Trespass. This cause of action, which alleges that the HOA entered Plaintiff’s property beyond the scope of her permission, is based on facts that are different from the breach of contract claim, which alleges that the HOA failed to enforce the CC&Rs against Hyland.
The HOA also argues that the sixth cause of action is uncertain and barred by the statute of limitations because it does not allege any specific dates. The Court disagrees.
The statute of limitations for a trespass claim is generally three years. (Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 607.) Plaintiff alleges that she discovered the water intrusion in or around June 2018. (FAC, ¶ 10.) Plaintiff filed her Complaint in July 2021, more than three years after her discovery. However, Plaintiff also alleges that the HOA has caused, and continues to cause, water intrusion. (FAC, ¶ 46 [emphasis added].) When trespass is continuing, “‘an action may be brought at any time to recover the damages which have accrued within the statutory period, although the original trespass occurred before that period.’” (Madani, 45 Cal.App.5th at p. 608.) Because Plaintiff has alleged a continuing trespass by the HOA, her claim is not time-barred.
Tentative Ruling: The HOA’s Demurrer is SUSTAINED as to the sixth cause of action for Trespass with 20 days’ leave to amend. The Demurrer is OVERRULED as to the second cause of action for Trespass.
Breach of Contract
The HOA demurs to the first cause of action for Breach of Contract on the ground that the Complaint does not include the dates of the alleged breach and it is therefore uncertain, vague, and fails to state a cause of action. Plaintiff does not oppose the Demurrer on this point and has therefore abandoned the issue. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Plaintiff requests leave to amend, stating that the dates for each breach can be provided.
Tentative Ruling: The Demurrer is SUSTAINED as to the first cause of action for Breach of Contract with 20 days’ leave to amend.
Hyland’s Motion to Strike
Hyland argues that Plaintiff’s allegations that Hyland constructed a planter and installed vegetation and an irrigation system without proper waterproofing and proper drainage, creating a nuisance, fail demonstrate that Hyland acted intentionally, willfully and with malice and conscious disregard for the safety of others. Punitive damages against Hyland are therefore not warranted.
To support exemplary damages, the complaint must allege facts of defendant’s oppression, fraud, or malice, as required by Civil Code section 3294. (Civil Code § 3294(a); College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) “Malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civil Code § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civil Code § 3294(c)(2).)
“The adjective ‘despicable’ connotes conduct that is ‘ “. . . so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ [Citations.] ‘ “. . . . Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages . . . . Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.” ’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)
The Court agrees that Plaintiff’s allegations that Hyland installed a planter with improper waterproofing and drainage fail to support a claim for punitive damages. There are no allegations showing that Hyland’s conduct was malicious or intended to cause injury to Plaintiff or that Hyland subjected Plaintiff to any cruel hardship with conscious disregard of Plaintiff’s rights.
Tentative Ruling: Hyland’s Motion to Strike is GRANTED with 20 days’ leave to amend.
The HOA’s Motion to Strike
The HOA seeks to strike Plaintiff’s prayer for $12,440.00 in damages (NOTE: the Motion reads “$128,144.” which appears to be a typo), which she alleges is the amount she has been forced to incur to repair damage to her property. The HOA argues that Plaintiff has failed to plead facts sufficient to allege a contractual right to the cost of repairs.
As Plaintiff points out, damages under a breach of contract claim are not limited to damages provided for in a contract’s terms. Under Civil Code section 3300, damages for breach of contract are the amount which will compensate the party for all the detriment proximately caused by the breach.
Tentative Ruling: The Motion to Strike by the HOA is DENIED as to Plaintiff’s prayer for cost of repairs.
The HOA argues that Plaintiff is not entitled to attorneys’ fees as to the second and sixth causes of action for Trespass because such fees are not authorized by contract, statute, or law. Plaintiff does not oppose the Motion as to this point. Accordingly, the Court deems Plaintiff to have abandoned the issue. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.)
Tentative Ruling: The Motion to Strike by the HOA is GRANTED as to Plaintiff’s request for attorneys’ fees on the second and sixth causes of action for Trespass, without leave to amend.
Plaintiff to give notice.