Judge Peter A. Hernandez, Case Number: 23PSCV00304, Date: 2023-11-02 Tentative Ruling

Judge: Peter A. Hernandez, Case: 23PSCV00304, Date: 2023-11-02 Tentative Ruling

Case Number: 23PSCV00304 Hearing Date: November 2, 2023 Dept: K

Defendant Upper Westwood Homeowner’s Association’s Demurrer to Complaint is SUSTAINED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

Background

Plaintiff Hector Mercado (“Plaintiff”) alleges as follows: On May 23, 2022, Plaintiff purchased a condominium unit (“Unit”) from David Lucano (“Lucano”) “and the other Defendants.” Plaintiff was not told of certain defects to the Unit, the roof, AC unit, windows and doors. The Unit has sustained water damage.

On January 31, 2023, Plaintiff filed a complaint, asserting causes of action against Lucano, Condominium Management Services ("CMS”), Home Warranty of America (“HWA”), Quality Real Estate (“QRE”), Maricela Abundis (“Abundis”) and Does 1-10 for:

1. Breach of Contract

2. Breach of Contract

On April 28, 2023, Plaintiff filed an “Amendment to Complaint,” wherein South Coast Shingle Company, Inc. (“South Coast”) was named in lieu of Doe 1.

On June 6, 2023, Plaintiff dismissed CMS and QRE, without prejudice; that day, Plaintiff filed two “Amendment[s] to Complaint,” wherein Christina Mercado was named in lieu of Doe 2 and Upper Westwood Homeowners Association (“HOA”) was named in lieu of Doe 3.

On August 23, 2023, Plaintiff dismissed South Coast, without prejudice.

A Case Management Conference is set for January 9, 2024.

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or that, in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (Code Civ. Proc., § 430.10, subds. (e) and (g).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

HOA demurs, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (g), to the first and second cause of action in Plaintiff’s complaint, on the basis that they both fail to state facts sufficient to constitute causes of action and that it cannot be ascertained whether the contract is written, oral or implied by conduct.

Plaintiff’s complaint is comprised of two causes of action, each for Breach of Contract. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

As to the first cause of action, Plaintiff has alleged that a written agreement was made on or about May 23, 2022 between Luciano, Abundis and QRE, a copy of which is attached as Exhibit A. Exhibit A to the complaint appears to be an addendum to the Purchase Agreement for the lease of the Unit for a term following the sale of the Unit. HOA is not a party to the contract and is not mentioned in the contract.

As to the second cause of action, Plaintiff has alleged that a written agreement was made on or about November 1, 2022 between CMS and HWA, a copy of which is attached as Exhibit B. Exhibit B to the complaint appears to be a home warranty plan purchased in connection with the sale of the Unit. Again, HOA is not a party to the contract and is not mentioned in the contract.

HOA’s demurrer, then, is sustained.