Judge: Nick A. Dourbetas, Case: 2022-01241773, Date: 2022-09-16 Tentative Ruling
1. Demurrer to Complaint
2. Case Management Conference
Defendant Badri Gleason’s (defendant) demurrer to complaint is OVERRULED in its entirety.
Defendant shall answer the complaint within 10 days.
The complaint is not uncertain; it is not “so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) It specifically alleges that defendant has violated the CC&Rs and other governing documents by constructing an unauthorized rear balcony/deck at her property that impermissibly encroaches on and into the plaintiff Monarch Point Homeowners Association’s (plaintiff or the Association) Fuel Modification Zone A, “an easement area” granted to and maintained by the Association pursuant to the governing documents. (See Compl. ¶¶ 3, 7, 10, 12-15, 17-28, 33-34.) These allegations of fact, which the court must take as true on demurrer (see Mathews v. Becerra (2019) 8 Cal.5th 756, 768), more than sufficiently state a violation of the governing documents. Plaintiff is not required to attach evidence proving up or otherwise supporting its allegations. (See Kan v. Guild Mortgage Company (2014) 230 Cal.App.4th 736, 740, 744, fn. 2 [on demurrer, it is the pleadings, not the evidence, at issue].) Any purported “ambiguities can be clarified under modern discovery procedures.” (Lickiss, at p. 1135.)
The remainder of the demurrer relies on facts that do not appear in the complaint or from matters that are subject to judicial notice, and therefore fails. A demurrer tests only the legal sufficiency of the complaint. “In analyzing [a] demurrer, ‘we look “only to the face of the pleadings and to matters judicially noticeable and not to the evidence or other extrinsic matter.” ’ ” (Satyadi v. West Contra Costa Healthcare District (2014) 232 Cal.App.4th 1022, 1028.)
Specifically, defendant contends all of the claims in the complaint fail because “the applicable 2015 fuel modification plan was never recorded as required by [Civil Code section] 1468(d)” (see Dem. P&As at pp. 7, 11-12), and the subject balcony/deck does not in fact encroach on or into the Association’s fuel modification zone (see id. at pp. 12-13), but nothing in the complaint or judicially noticed matters establish these facts. (See Lent v. California Coastal Com. (2021) 62 Cal.App.5th 812, 854 (Lent) [while the court may take judicial notice of official acts of state agencies, the truth of matters asserted in such documents is not subject to judicial notice]; Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134 (Cruz) [same]; see also Compl., in passim.)
As for plaintiff’s certificate of compliance—it cannot be determined from the allegations of the complaint whether Civil Code section 5930, and therefore Civil Code section 5950, even applies here, because the complaint includes a claim for breach of contract seeking monetary damages of an unspecified amount. (See Civ. Code, § 5930, subd. (a).)
Further, to the extent the court can determine on demurrer, plaintiff’s certificate of compliance appears to adequately comply with Civil Code section 5950 by, inter alia, stating that “the Association is seeking Preliminary Injunctive relief and the Parties have been unable to submit this matter to ADR based on the terms requested by the Association.” (1/20/22 Cert. of Compl., p. 2 [ROA No. 4]; see Civ. Code, § 5950, subd. (a)(2); see also Compl. ¶ 41.)
Lastly, although the court declines to consider the declaration of defendant’s counsel as improper extrinsic evidence (see below), the court notes that this evidence tends to suggest “the parties” endeavored to submit their dispute to ADR as required by Civil Code section 5930, but failed to complete it before the expiration of the parties’ agreed-upon deadline at the end of June 2021, due to what appears to be defendant’s own delay (see D. Gleason Decl. at Exs. 5-6; see also Compl. ¶ 41), before plaintiff commenced this action on 1/20/22. Defendant fails to provide any legal argument or citation to legal authority showing that this is insufficient, or that Civil Code section 5930 et seq. requires all parties to a dispute to each make his/her/its own, independent, and separate attempt to initiate ADR.
Request for judicial notice:
Defendant’s request for judicial notice is granted only as to the existence and legal effect of the building permit under exhibit 1 (see Evid. Code, § 452, subd. (c)), and otherwise denied. To be clear, the court denies judicial notice of the disputed/disputable facts stated in the building permit (see Lent, supra, 62 Cal.App.5th at p. 854 [while the court may take judicial notice of official acts of state agencies, the truth of matters asserted in such documents is not subject to judicial notice]; Cruz, supra, 173 Cal.App.3d at p. 1134 [same]); any documents other than the building permit attached as a part of exhibit 1; and exhibit 2 in its entirety.
Declarations of fact:
The court declines to consider the declarations of Darius Gleason and the exhibits attached thereto, as they constitute extrinsic evidence, not properly considered on demurrer. (See Ion Equipment Corp v. Nelson (1980) 110 Cal.App.3d 868, 881.)
Objections to the moving brief:
Plaintiff’s objections to the memorandum of points and authorities filed in support of the demurrer are overruled. A legal brief is not evidence.
Defendant shall give notice.