Judge: Nick A. Dourbetas, Case: 2022-01244910, Date: 2022-10-14 Tentative Ruling

1. Demurrer to Complaint

2. Demurrer to Complaint

3. Motion to Compel Answers to Form Interrogatories

4. Motion to Strike Portions of Complaint

5. Case Management Conference

Motion No. 1 Demurrer.

Defendant Newport Owners Association’s Demurrer to Plaintiff’s complaint is SUSTAINED with, and without leave to amend. (See Code Civ. Proc. § 430.10, subd (e).)

The demurrer as to the second cause of action is SUSTAINED with leave to amend on the grounds that the disputed covenants, conditions and restrictions (“CC&Rs”) are not appended to the complaint, not alleged verbatim, and the legal effect is not adequately alleged in the complaint.

The demurrer as to the third cause of action is SUSTAINED without leave to amend based upon the concession in plaintiff’s opposition. 

The demurrer as to the sixth cause of action is SUSTAINED without leave to amend on the grounds that injunctive relief is a remedy, not a cause of action. (See Guessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1350, 1187.) The demurrer is sustained with leave to allege the remedy of injunctive relief in connection with an appropriate caused of action.

The demurrer as to the eighth cause of action is SUSTAINED without leave to amend on the grounds that punitive damages  are a remedy, not a cause of action. (See 569 East County Boulevard LLV v. Backcountry Against The Dump (2016) 6 Cal.App.5th 426, fn. 3.) The demurrer is sustained with leave to allege the remedy of punitive damages in connection with an appropriate caused of action.

The demurrer as to the remining cause of action is SUSTAINED with leave to amend on the grounds that the complaint was not accompanied by the certificate required by Calif. Civil Code section 5950, subdivision (b).

Motion No. 2. Motion to Strike.

Based upon the court’s ruling on the demurrer, the defendant’s motion to strike is DENIED as moot.

The court declines to consider the declarations submitted with the plaintiff’s oppositions. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Ion Equipment Corp v. Nelson (1980) 110 Cal.App.3d 868, 881.)

Plaintiff to file an amended complaint within ten days.

Defendant to give notice.

Motion No. 3

The Hearing on Defendants Alan Sakai’s and Monique Christensen’s General Demurrer to Plaintiff’s Complaint is CONTINUED to March 17, 2023.

Plaintiff and defendant are ordered to meet and confer as to each issue raised by the demurrer by telephone within five days. Within seven days, defendant is ordered to submit a declaration establishing that the meet and confer was accomplished and the results of the meet and confer. (See Code Civ. Proc. 430.41.)

Additionally, the proof of service for plaintiff’s opposition fails to comply with Calif. Code of Civil Procedure, section 1013b, subdivision (b)(1). Plaintiff to file a Code-compliant proof of service for the opposition within five days.

Defendants are ordered to give notice.

Motion No. 4

Defendant Newport Owners Association Motion to Compel Plaintiff to Serve Verified Responses without Objections to Form Interrogatories, Set No. 1, and Imposition of Monetary Sanctions is GRANTED IN PART and DENIED AS MOOT IN PART. (See Code Civ. Proc. § 2030.290). 

Based upon defendant’s 08/17/22 notice, the motion as to the interrogatory responses is denied as moot.

The court has the power to award sanctions, notwithstanding the fact the responses were served while the motion was pending. (See Calif. Rule Court, rule 3.1348.)

Calif. Code of Civil Procedure, section 2030.260, subdivision (a) mandates that responses must be served  within 30 days of service of the interrogatories. Plaintiff’s responses were due on 05/15/22. At the request of plaintiff that statutory deadline was extended to 06/10/22, 06/14/22, 06/21/22, 06/24/22, and 07/01/22. (Yee Dec. ¶¶ 4-11, Exh. B-E.) Despite stating that the responses “were coming” and despite defendant granting five extensions of time to serve the responses, plaintiff failed to serve the responses by 07/01/22. The court finds that an award of monetary sanctions is appropriate. (See Code Civ. Proc.§  2030.290, subd. (c).)

The court imposes $1,500.00 in monetary sanctions against plaintiff only, payable to counsel for defendant within thirty days.

Defendant is ordered to give notice.