Judge Ralph C. Hofer, Case Number: 22GDCV00026, Date: 2024-05-03 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.

Defendant and cross-complainant Paul Van Richter moves the court for an order permitting him to file a supplemental cross-complaint to allege facts which have occurred recently, since the filing of the original cross-complaint.

The determination to permit the making of a supplemental pleading is within the discretion of the court. The Second District has observed: “It is the general policy that courts should exercise liberality in permitting the filing of supplemental pleadings when the alleged ‘occurring-after’ facts are pertinent to the case.” Flood v. Simpson (1975) 45 Cal.App.3d 644, 647, citations omitted. A motion to file a supplemental pleading “is addressed to the sound legal discretion of the court, and its ruling will not be disturbed on appeal in the absence of a showing of manifest abuse of discretion.” Id. A supplemental pleading cannot ordinarily be used to allege facts constituting an entirely new cause of action. Flood, at 647.

Here, Van Richter seeks to amend the pleading based on occurrences since the filing of the original cross-complaint. Specifically, cross-complainant argues that since the filing of the cross-complaint in November of 2022, cross-defendant Excelsior HOA has continued to intentionally exclude cross-complainant from all the benefits it provided to all the other 99 homeowners, which facts further support cross-complainant’s claims in the cross-complaint. Cross-complainant indicates that in May of 2023, an attorney for the Excelsior HOA board sent out a “member’ status letter” with an attached copy of a complaint in a lawsuit entitled Reconstruction Experts, Inc. v. The Excelsior at the Americana at Brand Homeowners’ Association and its Members, LASC Case No. 23 GDCV00580 which includes a cause of action for foreclosure on a mechanics’ lien, with the County Recording listing on the recorded lien all of the homeowners, including Van Richter.

Cross-complainant indicates that he has sent a written letter to the Excelsior HOA Board and its attorney requesting a defense in the lawsuit, as provided to all the other 99 homeowners, and requested he be provided with a copy of the waiver of conflict which was sent to the other 99 homeowners to sign in order to allow the Excelsior HOA attorney to defend them in the lawsuit, but cross-defendant has failed to respond, and the attorney, in August of 2023, has proceeded to file a demurrer in the Reconstruction Experts lawsuit on behalf of all 99 other owners except cross-defendant.

Cross-complainant argues that once again, cross-complainant is paying 1/100 from his monthly dues for rights, services, and privileges afforded to all the other 99 homeowners, and Excelsior HOA is wrongfully discriminating against him.

The motion indicates that the supplemental allegations are based on events which occurred recently, and there has not been a delay in asserting them which would result in prejudice such as the loss of critical evidence, and that the parties have submitted a stipulation to continue the trial to a later date which would allow for any additional needed discovery.

The proposed supplemental cross-complaint attached to the motion is not drafted as a stand-alone supplemental cross-complaint, with a restatement of the allegations from the original cross-complaint, so that one cross-complaint would be the operative cross-complaint in this proceeding. Instead, cross-complainant has submitted a supplemental cross-complaint which states, that the “pending” cross-complaint previously filed “as supplemented hereby, remains operative,” and that cross-complainant, “additionally alleges as follows.” [Ex. 1, p. 1].

This approach is improper as one all encompassing cross-complaint including all cross-claims and allegations must be submitted in this matter, which cross-complaint will supersede all previous pleadings. This manner of submitting the supplemental allegations also creates confusion, as it is not clear which of the two causes of action in the original cross-complaint are intended to be supplemented. The cross-complaint includes two causes of action, for breach of governing documents and for declaratory relief. It appears that the supplemental pleading may be intended to supplement both causes of action, but this must be clarified. As noted above, a supplemental pleading cannot be used to add an entirely new cause of action. The supplemental allegations here suggest that cross-complainant is pursuing new damages beyond those suffered for the payment of monthly dues for services not received through First Services Residential, and a broader declaration of rights and duties, which may be beyond the intended scope of permitting supplemental allegations to be added to a pleading.

Nevertheless, there is no opposition to this motion, so no prejudice is argued, and it would be preferable to resolve the disputes concerning the alleged treatment of cross-complainant and the use of his homeowners’ association fees in one proceeding.

The motion is granted, but cross-complainant will be required to file a stand-alone all-encompassing pleading, entitled the “Supplemental First Amended Cross-Complaint,” which will include the allegations included in the original cross-complaint, as well as those included in the “[Proposed] Supplemental Cross Complaint of Paul Van Richter” attached to the moving papers as Exhibit 1, with the new allegations inserted into the cause or causes of action intended to be supplemented, following the original allegations. The supplemental allegations are to be alleged verbatim from the proposed supplemental pleading, including the dates alleged, which serve to clarify what allegations are new.

Cross-Complainant is ordered to file and serve a stand-alone all-encompassing pleading, entitled the “Supplemental First Amended Cross-Complaint,” which is to include the allegations included in the original cross-complaint, as well as those included in the “[Proposed] Supplemental Cross Complaint of Paul Van Richter” attached to the moving papers as Exhibit 1, with the new allegations inserted into the cause or causes of action intended to be supplemented, following the original allegations. The supplemental allegations must be alleged verbatim from the proposed supplemental pleading, including the dates alleged, which serve to clarify what allegations are new. The only variation from the allegations in the proposed supplemental pleading permitted will be the omission of the “Supplemental Cross-Complaint designation and the introductory paragraph (Ex. 1, p. 1:19-23), and the addition of dates, if necessary, to clarify that allegations are supplemental. The Court does not believe that further dates will be necessary if the new allegations are made verbatim and left in the order in which they appear in Exhibit 1.

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