Judge: Ralph C. Hofer, Case: 22GDCV00026, Date: 2023-02-24 Tentative Ruling

Case Number: 22GDCV00026    Hearing Date: February 24, 2023    Dept: D

TENTATIVE RULING

Calendar: 6
Date: 2/24/2023
Case No.: 22 GDCV00026 Trial Date: Oct. 2, 2023 
Case Name: Excelsior at the Americana at Brand Homeowners Association v. Van 
Richter, et al.

DEMURRER TO ANSWER

Moving Party: Cross-Complainant Paul Van Richter 
Responding Party: Cross-Defendant Excelsior at the Americana at Brand Homeowner’s Association 
 
FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiff Excelsior at the Americana at Brand Homeowners’ Association (“Excelsior HOA”) alleges that it is a California mutual benefit non-profit corporation which is owned by and composed of its members and owners within the community known as The Excelsior at Americana (“Excelsior”).  Plaintiff alleges that there are 100 owner members, and that defendant Paul Van Richter is the trustee of the Paul J. Abramson Trust, the owner of real property Unit 676 at Excelsior, and a member of Excelsior HOA.  Plaintiff alleges that Van Richter resides at the subject unit. 

Plaintiff alleges that every condominium unit at the property is governed by the Excelsior HOA Covenants, Conditions and Restrictions (“CC&Rs”), pursuant to which Excelsior HOA is responsible for repairs of common areas at the property.   In 2020, plaintiff completed a major construction defect lawsuit, which included claims for defects and damages related to the master bedroom showers leaking into the adjacent common area walls and sub-floors between residences, deterioration of cast iron pipes due to hydrogen sulfide gas corrosion, and missing fire stopping in the fire rated walls between the residences.  The repairs will require the removal and replacement of the master bathroom shower, replacement of the cast iron pipes, and the installation of fireproofing between the residences, which repairs will take place inside all of the residences and cannot be done solely from the exterior of the residences. 

Plaintiff alleges that it has sent notice to the residence concerning a schedule of inspections to take place inside the residences, to be completed November 1-12, 2021, Monday through Friday, lasting about thirty minutes.  Van Richter has contacted the reconstruction company to not contact him for access to his unit, has informed Excelsior HOA’s consultants that he had no issues in his residence and the issues were all repaired, which plaintiff alleges is not possible because the problems are located in the common areas and defendant has not obtained approval for construction in his residence as required by the CC&Rs. Defendant’s home, Unit 676, has not been inspected as defendant refused to grant access for inspections, in violation of the CC&Rs section concerning Right of Entry of the Association, and Excelsior HOA seeks an order from the court to defendant to vacate his unit for the duration of inspection and repairs of his unit and that the Excelsior HOA be permitted access to his unit to perform the repairs that are being made at all other units at the Excelsior.   
The complaint also alleges causes of action for fraud and abuse of process based on allegations that defendant has filed two small claims complaints, in March of 2021 and November of 2021, in which defendant has falsely represented to the court that the claims had been served on plaintiff.   These causes of action were the subject of a special motion to strike which the court heard on October 7, 2022.  The motion was granted, and the causes of action were ordered stricken with prejudice from the verified complaint. 

Defendant Van Richter, individually and as trustee, has filed a cross-complaint, naming plaintiff Excelsior HOA as cross-defendant, alleging that Excelsior HOA has breached the CC&Rs by directing or being compliant in allowing management servicer First Service Residential on May 11, 2020 to terminate all its management duties and services exclusively to Van Richter.  The cross-complaint alleges a cause of action for breach of contract, as well as a cause of action for declaratory relief, in which cross-complainant seeks a declaration that Excelsior HOA is in violation of the CC&Rs by continuing to require Van Richter to pay $716.86 per month for residential services such as onsite property management, concierge, janitorial, engineering and security, while Van Richter is being denied any of these services.   

ANALYSIS: 
Cross-defendant Excelsior HOA filed a First Amended Answer in this action on February 7, 2022, after the filing of the demurrer and before the date for filing an opposition to the demurrer.  

Under CCP § 472:
“(a) A party may amend its pleading once without leave of the court at any time before the answer, demurrer or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.  A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation of the parties….”

The pleading here was appropriately amended once without leave of the court, and the demurrer is taken off calendar as moot. 

RULING: 
Cross-Complainant Paul Van Richter’s Demurrer to Cross-Defendant Excelsior at the Americana at Brand Homeowner’s Association’s Answer to Cross-Complaint is taken off calendar as MOOT in light of the filing on February 7, 2023 of a First Amended Answer.  

The parties are reminded of their obligations under CCP § 430.41 (a) in connection with any further challenge to the amended pleading (“If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.”).


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Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.