TENTATIVE RULING

Defendant Park Plaza Condominiums Homeowners Association’s Demurrer to Complaint is SUSTAINED without leave to amend as to the first and sixth causes of action.

Defendant Park Plaza Condominiums Homeowners Association’s Motion to Strike Portions of Complaint is GRANTED without leave to amend as to Plaintiffs Samuel Korn and Aliza Korn’s claims for punitive damages.

Defendant Park Plaza Condominiums Homeowners Association shall file and serve an answer to Plaintiffs Samuel Korn and Aliza Korn’s Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Defendant Park Plaza Condominiums Homeowners Association to give notice. 

REASONING

Defendant Park Plaza Condominiums Homeowners Association (“Defendant” or “the HOA”) demurs to all causes of action in Plaintiffs Samuel Korn and Aliza Korn (“Plaintiffs”)’s complaint on the ground that Plaintiffs failed to comply with the pre-litigation alternative dispute resolution requirements of Civil Code section 5930, and Defendant argues that the first and sixth causes of action are insufficiently stated. Defendant also moves to strike Plaintiffs’ claims for punitive and exemplary damages.

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Pre-Litigation Alternative Dispute Resolution Requirements Under Civil Code section 5930

Defendant argues that Plaintiffs have failed to comply with the pre-litigation alternative dispute resolution requirements set forth in Civil Code section 5930, subdivision (a), which states that “[a]n Association or a member may not file an enforcement action in the superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution.” Notably, subdivision (b) of the statute specifically states that “[t]his section applies only to an enforcement action that is solely for declaratory, injunctive, or writ relief, or for that relief in conjunction with a claim for monetary damages not in excess of the jurisdictional limits stated in Sections 116.220 and 116.221 of the Code of Civil Procedure.” (Civ. Code, § 5930, subdivision (b).) This action is not solely one for declaratory, injunctive, or writ relief, as Plaintiffs seek monetary damages, and Plaintiffs are seeking more than $35,000 in damages, making their claims beyond the purview of Code of Civil Procedure sections 116.220 and 116.221. Thus, there were no pre-litigation alternative dispute resolution requirements, and Defendant’s demurrer on this basis is OVERRULED.

First Cause of Action: Intentional Infliction of Emotional Distress

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Plaintiffs allege that on January 9, 2023, Plaintiff Samuel Korn and other members of the HOA filed a complaint in Los Angeles Superior Court Case No. 23SMCV00104 challenging the HOA’s two emergency assessments imposed on owners at the community (Compl. ¶ 19), and Defendant purposely “slow walked” the resolution of Plaintiffs’ noise complaint in retaliation for filing this action (Compl. ¶ 24). Simply failing to resolve the noise issue, even if it was done in retaliation for filing a legal action, does not constitute extreme and outrageous conduct rising to the level of an intentional infliction of emotional distress claim, as the duty to repair the noise is merely contractual under the HOA’s governing documents. Accordingly, Defendant’s demurrer to the first cause of action is SUSTAINED without leave to amend.

Sixth Cause of Action: Nuisance

To establish an action for private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”; (3) “the interference with the protected interest must not only be substantial, but 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.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263, citations, italics, brackets, and quotation marks omitted.) Public nuisances are “substantial and unreasonable” “offenses against, or interferences with, the exercise of rights common to the public.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305.)

Plaintiffs allege that Defendant has injured Plaintiffs’ quality of life by failing to resolve the noise complaint. (Compl. ¶ 50.) This does not state whether Plaintiffs intend to claim a public or private nuisance, which must be pled to put Defendant on notice of the claim against it, but either claim fails here. First, Plaintiffs have not sufficiently stated facts that would allow the trier or fact to conclude that this private nuisance differs in any way from Plaintiffs’ negligence claim, and the Court is not convinced that some unidentified members of the HOA being similarly affected by the noise constitutes a public nuisance. Accordingly, Defendant’s demurrer to the sixth cause of action is SUSTAINED without leave to amend.

Motion to Strike

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Put simply, Plaintiffs have failed to allege claims which would support an award of punitive damages. While Plaintiffs may be senior citizens, and Defendant may have long delayed in resolving a noise complaint, there is no basis to conclude that this contractual failure to repair constitutes malicious, oppressive, or fraudulent conduct. Rather, it is merely the sort of conduct which would support an award of compensatory damages for the harm suffered by Plaintiffs due to Defendant’s delay in repairing the issue. Accordingly, Defendant’s motion to strike is GRANTED without leave to amend.