Judge: Mark C. Kim, Case: 21LBCV00652, Date: 2022-08-11 Tentative Ruling
Case Number: 21LBCV00652 Hearing Date: August 11, 2022 Dept: S27
Plaintiffs, Lois Brown and Graham
Inch filed this action against Defendants, Marina Pacifica Homeowners Association,
Southbay Restoration, Inc., and Linda and Jerry Parks for breach of governing documents,
violation of Civil Code, nuisance, negligence, and breach of fiduciary
duty. Plaintiffs allege the Parks left a
faucet running in their bathroom, which failed to properly drain as a result of
an improperly maintained common area pipe.
The use of the faucet coupled with the faulty pipe caused water to flood
into the walls and interior of Plaintiffs’ unit.
Thereafter, the Association hired
911 Restoration to perform water mitigation and dry out Plaintiffs’ unit. Plaintiffs allege 911 failed to test for
asbestos and lead, which caused asbestos and lead to get all over Plaintiffs’
unit, their furniture, and their personal belongings.
Plaintiffs filed their complaint on
12/13/21. There are two cross-complaints
in the action. The first was filed by
the Association, and is against 911 and the Parks. It includes claims for equitable indemnity,
comparative indemnity, express indemnity, breach of governing documents, and
declaratory relief. The second is by the
Parks, and is against the Association and 911.
It is for equitable indemnification, equitable contribution, and declaratory
relief.
a. Parties’
Positions
The Parks demur to the Association’s
cross-complaint, specifically the third, fourth, and fifth causes of action for
express indemnity, breach of governing documents, and declaratory relief. The Parks argue §§3.7, 3.9, and 17.5 of the
governing declaration, upon which the Association bases its claims, does not apply
in this case.
The Association opposes the
demurrer. It argues the governing
documents, when read as a whole, give rise to a claim against the Parks based
on the conduct alleged in the complaint.
b. Legal
Standard on Demurrer
A demurrer is a pleading used to test
the legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for purpose of the ruling on
the demurrer, all facts pleaded in the complaint are assumed to be true,
however improbable they may be.
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. Blank v. Kirwan 39
Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], §
430.30 [as to any matter on its face or from which judicial notice may be
taken], and § 430.50(a) [can be taken to the entire complaint or any cause of
action within]. Specifically, a demurrer
may be brought per CCP § 430.10(e) if insufficient facts are stated to support
the cause of action asserted. Per CCP
§430.10(a) a demurrer may be brought where the court has no jurisdiction of the
subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be
sustained only where the complaint is so bad that the defendant cannot
reasonably respond. CCP §
430.10(f).
However, in construing the
allegations, the court is to give effect to specific factual allegations that
may modify or limit inconsistent general or conclusory allegations. Financial
Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the
facts pled in the complaint are inconsistent with facts which are incorporated
by reference from exhibits attached to the complaint, the facts in the
incorporated exhibits control. Further, irrespective of the name or label given
to a cause of action by the plaintiff, a general demurrer must be overruled if
the facts as pled in the body of the complaint state some valid claim for
relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP
§ 92(c).)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. Goodman v. Kennedy,
18 Cal.3d 335, 348 (1976). The burden is on the complainant to show the Court
that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41
requires that “[b]efore filing a demurrer pursuant to this chapter, the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer
at least five days before the date the responsive pleading is due. (CCP §
430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration
detailing their meet and confer efforts. (CCP § 430.41(a)(3).)
c. Meet
and Confer
Defense Counsel declares she sent a
meet and confer email and invited the Association to meet and confer, but the Association
responded by stating it believes its cross-complaint is sufficient. The Association notes, in opposition to the
demurrer, that there was no attempt to meet and confer in person or by
phone. The parties’ meet and confer
correspondence is not attached to the demurrer, but it is attached to the opposition;
in the opening email, Defense Counsel asked Plaintiffs’ attorney to “contact me…to
discuss.” The Court asks both attorneys
to actually call each other in the future in connection with this and other
actions, but will rule on the demurrer on its merits at this time.
d. Analysis
i.
Third Cause of Action, Express Indemnity
The third cause of action for express
indemnity is premised on a violation of §17.5 of the declaration. §17.5 requires the owner of a unit where an injury
or damage occurs to indemnify the Association for any claim for personal injury
or property damage sustained “within a unit or on its attached balcony, patio,
or deck.”
The Parks argue Plaintiffs did not
sustain injury or damage in the Parks’ unit or on their attached balcony,
patio, or deck. The Association argues
the complaint states facts that could lead a reasonable juror to determine
Plaintiffs’ injuries “occurred” within the Parks’ unit. This interpretation, however, strains credulity. All of the damage occurred in Plaintiffs’
unit; they are not claiming any damages in the Parks’ unit.
The Association also argues §17.5
has to be read in connection with other sections, including §§3.9 and 3.11,
which clearly make the member responsible for the damage that occurred in this
case. §3.11 indicates that members are
liable for any and all damages to other units and personal property in other units
when the cause of such damage originates from the member’s unit. §3.11 is not referenced anywhere in the
cross-complaint, but is clearly implicated.
The question is whether §3.11 solely supports a claim for breach of
governing documents (the fourth cause of action), or whether it supports a
claim for express indemnification (the third cause of action).
It seems that the parties’
indemnification obligations are exclusively set forth in ¶17.5, which is why
the third cause of action ONLY references §17.5. The Court is therefore inclined to sustain the
demurrer to the third cause of action; because this is a purely legal issue,
leave to amend is denied.
e. Fourth
Cause of Action, Breach of Governing Documents
§3.7 provides for a duty to
maintain, and requires members of the HOA to repair and maintain their units
and the exclusive use common areas servicing their units. §3.9 requires members to be responsible for
water damage to and mold in units, common areas, and exclusive use common areas
if the mold is caused by the member, member’s tenant, or their respective
family, guests, or invitees, or originates from the plumbing lines and
plumbing-related fixtures that the member is responsible for maintaining. The section requires members to regularly
inspect their units for plumbing leaks, water accumulation, water intrusion
through windows, doors, and roofs, and signs of mold, and requires members to
periodically service and/or replace supply and drain lines to appliances, etc.
§3.9 appears to apply in this
case. The Parks, in their demurrer, skipped
over the first part of the section, which appears before the word “OR.” §3.9 requires the Parks to be responsible for
water damage caused by them or their guests.
Regardless of whether the water damage was caused by a failure to
maintain, the complaint alleges the water damage was caused, in whole or in
part, by the Parks’ failure to turn off a faucet. This is sufficient, at the pleading stage, to
state a claim based on a violation of the documents.
Additionally, as noted above, it is
clear the cross-complaint could be amended to state a claim under §3.11. The demurrer to the fourth cause of action is
therefore overruled.
f. Fifth
Cause of Action, Declaratory Relief
The parties agree that the fifth
cause of action rises and falls with the third and fourth causes of action. Because the demurrer to the fourth cause of
action is overruled, the demurrer to the fifth cause of action is also
overruled.
The Parks move to strike the Association’s
prayer for attorneys’ fees and all related allegations. They argue there is no statutory or
contractual language in the case that gives rise to a right to recover
attorneys’ fees. In opposition to the motion,
the Association relies on §20.5 of the declaration, which provides, “Any
reasonable attorneys’ fees and costs incurred by the Association in the
enforcement of the Governing Documents against a Member or to determine the
rights or duties of the Member under the Governing Documents may be levied
against that Member by the Board as a Reimbursement Special Assessment, which
may be collected in any manner provided for by these CC&Rs or by law.”
The motion to strike is denied.
The Parks’ demurrer to the third
cause of action in the cross-complaint is sustained without leave to
amend. The demurrer is otherwise
overruled. The motion to strike is denied. The Parks are ordered to file an answer to
the cross-complaint, with the third cause of action deemed stricken, within ten
days.
The Parks are ordered to give
notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. 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.
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 any party does not submit on the tentative, the party should
make arrangements to appear remotely at the hearing on this matter.