TENTATIVE RULING

Defendants William F. Brath, Marilyn S. Brath, and Remedios Casasola, individually and as trustee of the Casasola Family Trust’s Demurrer to the Second Amended Complaint of Plaintiff Ocean Sunrise LLC is SUSTAINED with thirty (30) days leave to amend as to the first cause of action.

Defendants William F. Brath, Marilyn S. Brath, and Remedios Casasola, individually and as trustee of the Casasola Family Trust’s Motion to Strike Portions of Plaintiff Ocean Sunrise LLC’s Second Amended Complaint is DENIED as MOOT.

Plaintiff Ocean Sunrise LLC may amend its complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendants William F. Brath, Marilyn S. Brath, and Remedios Casasola, individually and as trustee of the Casasola Family Trust to give notice. 

REASONING

Request for Judicial Notice

Defendants William F. Brath, Marilyn S. Brath, and Remedios Casasola, individually and as trustee of the Casasola Family Trust (“Defendants”) request judicial notice of Tract Map Number 30203, recorded at the Los Angeles County Recorder’s Office on September 8, 1976; the parcel map for the property identified as Assessor’s ID No: 4453-003-024; and Los Angeles County Code section 22.44.820, subdivision (A)(1)(a). Defendants’ request is GRANTED pursuant to Evidence Code section 452, subdivisions (b), (c), and (h).

Plaintiff Ocean Sunrise LLC (“Plaintiff”) requests judicial notice Los Angeles County Code sections 11.50.010, 11.50.020, 22.44.800 to 22.44.810, and 22.44.690, and a court judgment recorded in the Los Angeles County Recorder’s Office on October 6, 1978. Plaintiffs’ request is GRANTED pursuant to Evidence Code section 452, subdivisions (b), (c), (d), and (h).

First Cause of Action: Declaratory Relief

In the first cause of action, Plaintiff seeks a declaratory judgment as to Defendants’ legal obligations under the CC&Rs, specifically as section 4.04, which provides for a contractual obligation to hold Plaintiff harmless from damages arising out of a failure to comply with the provision requiring an owner to maintain all hillsides and slopes on their lot to ensure that no erosion occurs upon parcels outside of but adjoining the property. (Second Am. Compl. ¶¶ 26, 116-117, Ex. 2.) Defendants demur to this cause of action on the ground that Plaintiff is not a party to the CC&Rs, nor is it a third-party beneficiary, such that it is not entitled to attorney fees under the CC&Rs. Plaintiff argues it is a third-party beneficiary of the CC&Rs as an adjoining landowner.

“To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.) The Court understands Plaintiff’s claim for declaratory judgment as seeking a judicial declaration that it has standing to enforce the CC&Rs. This is not a proper subject for declaratory relief. The better description of Plaintiff’s claim is one for breach of contract, which was alleged elsewhere in the Second Amended Complaint, as Plaintiff alleged that Defendants failed to pay damages and failed to hold Plaintiff harmless. (Second Am. Compl. ¶ 121.) Plaintiff has since dismissed that claim. A cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action. (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.)

Insofar as Plaintiff is alleging a claim that illegal structures on the land are improper, this is a claim based on past conduct, and “there is no basis for declaratory relief where only past wrongs are involved.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, quotation marks omitted.) Thus, the Court finds that a declaratory relief claim against Defendants cannot continue as currently alleged. Accordingly, Defendants William F. Brath, Marilyn S. Brath, and Remedios Casasola, individually and as trustee of the Casasola Family Trust’s Demurrer to the Second Amended Complaint of Plaintiff Ocean Sunrise LLC is SUSTAINED with thirty (30) days leave to amend as to the first cause of action.

Motion to Strike

Given that the Court has sustained the demurrer to Plaintiff’s sole claim against Defendants, Defendants’ motion to strike is DENIED as MOOT.