Judge Ralph C. Hofer, Case 22GDCV00026 2023-04-07 Tentative Ruling

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 residents 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.

Cross-Complainant Van Richter filed a demurrer in response to the original answer to the cross-complaint, which was scheduled to be heard on February 24, 2023. The demurrer was taken off calendar as moot due to the filing of the First Amended Answer in advance of the hearing.

Here, the FAA was served on February 7, 2023, by email. Allowing an additional two days for service of the FAA by email, the demurrer should have been filed by February 19, 2023, a Sunday, followed by a court holiday on Monday, February 20, 2023, so by Tuesday, February 21, 2023. The demurrer was filed on March 10, 2023, seventeen days late.

Cross-complainant in the moving papers concedes that the demurrer is untimely, and argues that the court has discretion to enlarge the time to file a demurrer when there is a mistake in the name of a party pursuant to CCP section 473(a)(1). There has been no mistake in the name of a party here. The moving papers argue that counsel inadvertently failed to properly calendar the ten-day due date, as opposed to the thirty-day due date in connection with a demurrer to a complaint. The argument is that there is excusable mistake here. This oversight would likely not be considered excusable on the part of an attorney, and there has been no motion seeking leave to file an untimely demurrer, with counsel accepting the possible imposition of monetary sanctions. The opposition argues that the demurrer should be overruled outright on this ground. The court would be within its discretion to overrule the demurrer as untimely, but has elected not to do so.

Under CCP section 430.30, an objection may be taken by demurrer to a pleading, “[w]hen any ground for objection to” an “answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice…”

Cross-defendant in the opposition argues that the Code details the only grounds upon which a demurrer to an answer may be pursued in CCP section 430.20, set forth above, and that those grounds do not include non-compliance with CCP section 431.30 (g). The grounds, in fact, do not include such a ground. Cross-defendant also argues that to the extent cross-complainant argues that the defenses are “uncertain” because the FAA fails to comply with section 431.30 subdivision (g), demurrers for uncertainty are disfavored, and that there is no clear argument how cross-complainant cannot understand the defenses themselves because of the failure to comply with subdivision (g).

Cross-defendant argues that cross-complainant has cited no legal authority in support of the argument that failure to refer to each cause of action in each affirmative defense renders each of the defenses uncertain, and that no such authority exists. Cross-defendant also points out that in considering a demurrer to an answer the court is to also examine the pleading to which the answer is directed to evaluate the sufficiency of the answer. See South Shore Land Co. v. Petersen (1964) 226 Cal. App.2d 725, 733.

An evaluation of the cross-complaint here shows that the cross-complaint includes two causes of action, for breach of contract and declaratory relief, both of which are based on allegations that cross-defendant Excelsior HOA caused cross-complainant Van Richter’s services to be terminated, when he pays dues for such services. [Cross-complaint, paras. 21-25, 29].

The opposition argues that there can be no uncertainty here, as the affirmative defenses apply to each cause of action unless otherwise stated. It is sufficiently clear from the defenses as applied to the cross-complaint to which causes of action each of the defenses apply; essentially, both causes of action. The fifteenth cause of action, for example, states that it applies to “each contract based purported cause of action.” [FAA, Fifteenth Cause of Action, “Lack/Failure of Consideration,” p. 7].

Cross-complainant also argues that each of the affirmative defenses fail to state facts sufficient to state a defense, as they are not alleged with factual particularity, in reliance on FPI Development, Inc. v. Nakashima (1993) 231 Cal.App.3d 367, in which the court of appeal affirmed the granting of a motion for summary judgment, in part on the ground that the conclusory affirmative defenses stated in defendants’ answer were insufficient to place facts in issue.

legal conclusions, rather than as facts "averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint." (See Pomeroy, Code Remedies, supra, Section 563, at p. 917.) The only affirmative defenses that are mentioned in the summary judgment proceedings, fraud in the inducement and failure of consideration, are not well pled, consisting of legal conclusions, and would not have survived a demurrer. (See e.g., Metropolis etc. Sav. Bank v. Monnier (1915) 169 Cal. 592, 596 [147 P. 265] (Metropolis); Riegel v. Wollenshlager (1920) 49 Cal.App. 300, 301 302 [193 P. 160].)”

The argument here is that the affirmative defenses consist primarily of a recitation of the defense, without providing sufficient details. A review of the FAA here shows that the defenses are preceded by a recitation of facts, which states, “The affirmative defenses set forth below are based on information and belief as to the following facts:…” [FAA, para. 2, pp. 2-3]. There is no argument that those particular stated facts do not include facts sufficient to support any particular defense.

Considering these details in connection with the allegations of the cross-complaint, the defenses are sufficient to provide plaintiff notice of what is being alleged. In addition, this court does not find this specificity argument under FPI Development persuasive, because, as argued in the opposition, the case stands for the generic proposition that mere allegations in a pleading are insufficient to withstand summary judgment. It does not stand for the proposition of a heightened pleading standard for affirmative defenses in an answer. The case does not make any reference to CCP sections 430.20 or 430.30.

In fact, it is recognized that plaintiffs rarely demur to answers, even though they have such a right pursuant to CCP § 430.30(a). See Weil & Brown, California Practice Guide: Civil Proc. Before Trial (The Rutter Group, 2022 rev.) para. 6:476. The practice is disfavored due to the notice-based aspects of pleadings. South Shore Land Co. v. Peterson (1964) 226 Cal.App.2d 725, 733.

Substantively, cross-complainant has failed to establish that the First Amended Answer to the cross-complaint, considered as a whole and in connection with the allegations of the Cross-Complaint, includes defenses which are either uncertain or fail to state facts sufficient to constitute a defense.

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