Judge Olivia Rosales, Case 22NWCV00609 2022-12-27 Tentative Ruling

Judge: Olivia Rosales, Case: 22NWCV00609, Date: 2022-12-27 Tentative Ruling

Case Number: 22NWCV00609 Hearing Date: December 27, 2022 Dept: SEC

GOEPEL v. BELLFLOWER VILLAGE HOMEOWNERS ASSOCIATION

CASE NO.: 22NWCV00609

HEARING: 12/27/22 @ 9:30 AM

TENTATIVE ORDER

Defendant Bellflower Village Homeowner Association’s unopposed demurrer to Plaintiff’s complaint is SUSTAINED. As there is no opposition, the court will hear from Plaintiff regarding any grounds warranting leave to amend.

Moving Party to give Notice.

Defendant Bellflower Village Homeowner Association demurs to the 1^st – 4^th causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action and are uncertain.

Plaintiff Richard Goepel’s Complaint, filed on July 19, 2022, alleges that he is a member of the Bellflower Village Homeowners Association (“BVHA”) and the owner of Unit 29 since August 1988. (Complaint, ¶ 4.) Plaintiff was elected Secretary of the BVHA from July 1989 – June 1999. (Id., ¶ 22.) “In 2000, without any notice, BVHA performed a common area parking space Reconfiguration.” (Id., ¶ 27.) “Association members did not receive notice of the Special Meeting until after the purported rule change was about to go into effect.” (Id., ¶ 31.) “Claimant asserts that the language of the Emergency Proposal that BVHA adopted at the Special Meeting was not what was put into effect… over the weeks before the Emergency Proposal implementation date of May 1, 2012, the language changed to suit the manner in which it was implemented.” (Id., ¶ 32.) Based thereon, the Complaint asserts causes of action for:

1. Nuisance

2. Violation of “section 4350[1357.100] of the Act”

3. Violation of Constitutional Right of Privacy

4. Nuisance

CC § 5950

“At the time of commencement of an enforcement action, the party
commencing the action shall file with the initial pleading a certificate stating that one of more of the following conditions are satisfied:

(1) Alternative dispute resolution has been completed in compliance with
this article.

(2) One of the other parties to the dispute did not accept the terms offered
for alternative dispute resolution.

(3) Preliminary or temporary injunctive relief is necessary.”

(CC § 5950(a).)

“Failure to file a certificate pursuant to subdivision (a) is grounds for a demurrer or motion to strike unless the court finds that dismissal of the action for failure to comply with this article would result in substantial prejudice to one of the parties.” (CC § 5950(b).)

“‘Enforcement action’” means a civil action or proceeding... for any of the following purposes:... (3) Enforcement of the governing documents.” (CC § 5925(b).)

Plaintiff is attempting to enforce the Association’s governing documents, which qualifies as an “enforcement action,” subject to CC § 5950. (See also Retzloff v. Moulton Parkway Residents’ Assn., No. One (2017) 14 Cal.App.5th 742.) Plaintiff failed to file the required certificate pursuant to CC § 5950.

In addition, the court finds Plaintiff’s Complaint is uncertain. A demurrer for uncertainty will be sustained only where the complaint is so bad that a defendant cannot reasonably respond. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612.)

Plaintiff has combined and alleged multiple legal theories under each single cause of action. It is unclear what facts support which claim.

Further, Plaintiff alleges breach of the CC&R’s, but has also alleged tort claims of Nuisance. Sands v. Walnut Gardens Condominium Assn. Inc. (2019) 35 Cal.App.5th 174 requires an independent duty arising from tort law that is separate from the duty arising from the CC&R’s.

Finally, the court finds that the 1^st, 2^nd, and 4^th causes of action are time-barred under the 3-year statute of limitations pursuant to CCP § 338 and the 5-year statute of limitations pursuant to CCP § 336(b). Plaintiff alleges that the reconfiguration was implemented in May 2012. Therefore, under both the 3-year and 5-year statute of limitations, the claims are time-barred.

Based on the foregoing, the demurrer is SUSTAINED. As there is no opposition, the court will hear from Plaintiff regarding any grounds warranting leave to amend.