Judge: Maurice A. Leiter, Case: 21STCV11951, Date: 2024-08-06 Tentative Ruling

Case Number: 21STCV11951    Hearing Date: August 6, 2024    Dept: 54

Hearing Date: August 6, 2024

Department 54, Judge Maurice A. Leiter

Motion for Judgment on the Pleadings

Moving Parties: Defendants Erin Lareau, Eric H. Ahola, and Sisu Construction, Inc.

Responding Parties: Plaintiffs Cyrus V. Godfrey, individually and as Trustee of the Cyrus Vincent Godfrey Living Trust

T/R:     DEFENDANTS’ MOTION IS GRANTED WITHOUT LEAVE TO AMEND AS TO DEFENDANTS ERIC H. AHOLA AND SISU CONSTRUCTION, INC.  THE MOTION IS DENIED AS TO DEFENDANT ERIN LAREAU.   

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On March 15, 2022, Plaintiffs Cyrus V. Godfrey and Cyrus V. Godfrey as Trustee of the Cyrus Vincent Godfrey Living Trust filed the operative First Amended Complaint (“FAC”) against Defendants Erin Lareau, Eric H. Ahola, and Sisu Construction, Inc., asserting causes of action for (1) nuisance, (2) negligence, (3) nuisance – parties, and (4) covenants, conditions, and restrictions (CC&Rs).  The FAC alleges that Defendants operate a construction business out of Plaintiffs’ neighbor Lareau’s residence and use that residence “in such a manner that extremely loud and excessive noise and construction work occurs there, and vibration, including the use of electric saws, electric drills, electric grinding, mechanized equipment, and the like.” (FAC. ¶¶ 8, 9.)

            At the Final Status Conference on April 12, 2024, the Court ordered a jury trial as to the first cause of action for nuisance, second cause of action for negligence, and third cause of action of nuisance, and decided the fourth cause of action would be addressed in a separate bench trial after the jury trial.  

            On May 3, 2024, the jury rendered a verdict in favor of Defendants on causes of action one through three.

            Defendants Lareau, Ahola, and Sisu Construction, Inc. now move for judgment on the pleadings and/or to dismiss as to the fourth cause of action.

REQUEST FOR JUDICIAL NOTICE

            Defendants ask the Court to take judicial notice of these facts:

1.    On April 12, 2024, the Court issued an order limiting the bench trial to the CC&R cause of action and equitable relief flowing therefrom; and

2.    To the extent that the CC&Rs apply and were enforceable, the CC&Rs have been revoked and are no longer enforceable.

            Defendants argue that those facts were established through (A) the Minute Order dated April 12, 2024, and (B) the Revocation of Declaration of Covenants and Restrictions, recorded at the Los Angeles County Recorder’s Office on May 24, 2024, a copy of which is attached as Exhibit “B” to the Declaration of Nikhil P. Pole.

“Although a court cannot take judicial notice of hearsay allegations in a court record, it can take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”  (Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1014.)

Similarly, “[c]ourts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.’  [Citation.]”  (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.)

The Court grants the request to take judicial notice of the Minute Order dated April 12, 2024, and the recorded documents.  But the Court cannot take judicial notice of the asserted fact that the CC&Rs have been revoked. Plaintiffs’ hearsay objection to facts asserted in the recorded documents is sustained.

ANALYSIS

A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.”  (CCP § §§ 438(b)(1) and (c)(1)(B)(ii).)  The grounds shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.  (CCP § 438(d).)  Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.  (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)  

The Court finds that the motion is timely. It was served and filed on June 27, 2024, more than 30 days before the second phase of trial scheduled for August 26, 2024. (See CCP § 1005.5 [“A motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion, but this shall not deprive a party of a hearing of the motion to which he is otherwise entitled.]”)

            Defendants argue that the fourth cause of action is moot because the CC&Rs have been revoked.  According to the CC&Rs, “a note of a majority of the then owners of the lots … [could] agree[] to change said covenants, conditions and restrictions in whole or in part.” (Exhibit A to the FAC, p. 4, ¶ 10.)  On May 19, 2024, “a majority” (i.e., eight out of thirteen) owners signed an agreement to revoke the CC&Rs.  On May 24, 2024, the revocation agreement was recorded in the Los Angeles County Recorder’s Office (Exh. “B” to the Pole Dec.) 

As discussed above the Court cannot take judicial notice of these facts and cannot grant the motion on this ground.   

Defendants next argue that Defendants Ahola and Sisu Construction, Inc. cannot be bound by the CC&Rs because Lareau is the sole owner and in possession of the property, and the CC&Rs bind only the property owners and their heirs, personal representatives, or assigns.[1]    

As Defendants argue, “[w]hat is bound by an equitable servitude enforceable under CC&Rs is a parcel, a lot, in a subdivided tract, not an individual who has no ownership interest in the lot.  [Citation.]  ‘[W]hen the owner of a subdivided tract conveys the various parcels in the tract by deeds containing appropriate language imposing restrictions on each parcel as part of a general plan of restrictions common to all the parcels and designed for their mutual benefit, mutual equitable servitudes are thereby created in favor of each parcel as against all the others.  [Citation.]’ [Citation.]’”  (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1036.)  

The FAC alleges that “Defendant ERIN LAREAU … is the sole owner, and in possession and control of, real property consisting of land and improvements constituting a single family residence at the address commonly known as 2645 Desmond Estates Rd., Los Angeles, CA 90046.” (FAC, ¶ 2; Shirvanyan v. Los Angeles Community College District (2020) 59 Cal.App.5th 82, 100 [“The complaint’s allegations are ‘“a judicial admission”’ that concede ‘“the truth of [the] matter”’ and have ‘“the effect of removing it from the issues.”’ [Citations]”].) 

            The CC&Rs also state:

NOW THEREFORE, THE UNDERSIGNED DO HEREBY, as owners of the aforementioned real property, impose on such property, and each and every parcel thereof, the following provisions, restrictions and covenants, hereinafter referred to as ‘covenants’, which shall apply to and bind the undersigned and all parties hereafter acquiring title to any of said parcels, their heirs, personal representatives and assigns.

(Exhibit A to the FAC, p. 4, ¶ 10.) The FAC does not allege that Ahola and Sisu Corporation are owners of the property, or heirs, personal representatives, or assigns of Lareau.

Plaintiffs have not shown they can amend the FAC to allege facts sufficient to show a claim for breach of the CC&Rs against Ahola and Sisu Corporation. The Court grants the motion as to Defendants Ahola and Sisu Corporation without leave to amend. The Court denies the motion as to Defendant Lareau.

            The parties’ briefs also address the issue of what relief can be awarded at the bench trial. The fourth cause of action alleges that Defendants breached the CC&Rs by engaging in a business on the Lareau property, which “is aggravated by the facts…that the business is noisy, disruptive, and a nuisance.” Plaintiffs also allege Defendants breached the CC&R’s by constructing structures not built and maintained “exclusively for private residence purposes.” (FAC ¶ 40.) In paragraph 41, Plaintiffs seek an injunction stopping this alleged wrongful conduct because “there is no adequate remedy at law due to the difficulty of determining the precise amount of damages…” In paragraph 42, Plaintiffs seek emotional distress damages for interference with their enjoyment of the property.

“A party who is damaged by a violation of the CC&R's may seek money damages.” (Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1385.) Here, however, all of Plaintiffs’ emotional distress claims arise from alleged interference with their enjoyment of the property caused by noise and disruption. The jury rejected these claims for emotional distress damages in Phase 1 of this trial. Plaintiffs do not allege separate or distinct emotional distress arising solely from the claimed violation of the CC&Rs.

The Court will adopt the jury’s conclusion on the issue of emotional distress damages; that will not be relitigated at the bench trial. "Issues adjudicated in earlier phases of a bifurcated trial are binding in later phases of that trial and need not be relitigated." (Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 487.) "Where legal claims are first tried by a jury and equitable claims later tried by a judge, the trial court must follow the jury's factual determinations on common issues of fact." (Hoopes v. Dolan (2008) 168 Cal.App.4th 146.) 

The bench trial will be limited to the issues of whether the CC&Rs were properly revoked, and if not, whether the Court should enjoin any ongoing breach of the CC&Rs.