Judge: Richard L. Fruin, Case: 24STCV29187, Date: 2025-04-08 Tentative Ruling

Case Number: 24STCV29187    Hearing Date: April 8, 2025    Dept: 15

# 6     TENTATIVE RULING                9:15 a.m., Tuesday, April 8, 2025

GRACE H. LOH v. LE FAUBOURG ST. GILLES HOMEOWNERS’ ASSOCIATION, et al. [24STCV29187]

 

DEMURRER OF DEFENDANT LAD (AVIATION), INC. DBA CHARLES TAYLOR ENVIRONMENTAL TECHNICAL SERVICES

 

MEET AND CONFER: [OK] (Counsel met and conferred telephonically in compliance with CCP § 430.41. (Wigley Decl., 3.))

 

TIMELINE: negligence and nuisance stemming from sewer back-up

 

2010: Plaintiff Grace H. Loh (“Plaintiff”) buys a Unit at the Le Faubourg St. Gilles common-interest development (the “Development”) and a member of Defendant Le Faubourg St. Gilles Homeowners’ Association (the “HOA”).

 

5/27/2024: While Plaintiff is abroad, sewer lines in the Development’s common area back up into the Unit due to the Association’s failure to hydrojet the sewer lines. The Association fails to timely respond, allowing raw sewage to flood the Unit for at least 24 hours.

 

6/21/2024: The Association hires Defendant Charles Taylor Engineering Technical Services LLC (“Charles Taylor”) to conduct a pre-remediation inspection of the Unit. Charles Taylor finds lead in the bathroom and kitchen tiles, which needed to be abated before further work on the Unit.

 

7/15/2024: The Association commissions Charles Taylor to perform post-remediation air testing of the Unit, who determined “the post mold clearance passed” in a Mold Post Remediation Verification Report. Plaintiff alleges these results were skewed because the Unit had been improperly sealed with plastic by Defendant One Stop Restoration Management Inc. (“One Stop”). Plaintiff alleges the plastic covering was inconsistent with several conclusions made in Charles Taylor’s Report.

 

8/2024: Plaintiff hires independent consultants to conduct air and surface testing of the Unit, who find positive results for fungal spores.

 

11/6/2024: Plaintiff files the Complaint, alleging causes of action for:

1.   Breach of CC&Rs

2.   Negligence

3.   Nuisance

 

3/14/2025: Charles Taylor files this Demurrer, followed by Plaintiff’s Opposition (3/21/2025) and Charles Taylor’s Reply (4/1/2025).

 

TENTATIVE RULING: DEMURRER OF DEFENDANT LAD (AVIATION), INC. DBA CHARLES TAYLOR ENVIRONMENTAL TECHNICAL SERVICES is OVERRULED in part and SUSTAINED with LEAVE TO AMEND in part.

 

I.        DEMURRER

 

Charles Taylor demurs to the 2nd and 3rd causes of action for negligence and nuisance on the grounds that Plaintiff fails to allege facts sufficient to constitute the causes of action.

 

As a preliminary matter, Plaintiff contends this Demurrer is untimely under CCP § 1005(b). Charles Taylor admits that it did not account for the additional two days for service to Plaintiff’s counsel and set the hearing only 16 court days out due to an inadvertent scheduling error. (Rep., at 1.) “It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697, quoting Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930, emphasis added.) “The general rule is that one who has been notified to attend a certain proceeding and does do so, cannot be heard to complain of alleged insufficiency of the notice; it has in such instance served its purpose. This rule applies […] to one who responds to a notice of motion without adequate notice.” (De Luca v. Board of Sup'rs of Los Angeles County (1955) 134 Cal.App.2d 606, 609.) For example, even where a party claims inadequate notice in his opposition to the motion, factors such as filing an opposition to the motion, appearing and arguing at the hearing, failing to request a continuance of the hearing, and failing to claim prejudice by reason of insufficient notice are circumstances suggesting the party has waived its claim of inadequate notice. (Quint, supra, 77 Cal.App.4th at 697.) Here, despite Plaintiff’s argument that notice of this Demurrer was untimely by 2 days, Plaintiff’s Opposition fails to address whether she was prejudiced by the inadequate notice and opposes the merits of the Demurrer. Even further, Charles Taylor also argues that Plaintiff never asked for additional time to respond or requested that Charles Taylor move the hearing date. (Rep., at 1.) Thus, the Court finds Plaintiff waived her claim of inadequate notice and the Court will consider the Demurrer on its merits.

 

Additionally, Charles Taylor’s Demurrer is centered almost entirely on facts drawn from its Mold Post Remediation Verification Report (the “Report”) (dated July 15, 2024), which is improper extrinsic evidence at this stage. For the reasons addressed in Section II below, the Court declines to take judicial notice of this document and/or the truth of the facts therein.

 

A.           2nd Cause of Action: Negligence — OVERRULED

 

Plaintiff sufficiently pleads a cause of action for negligence. To support a negligence claim, a plaintiff must allege that the defendant had a legal duty to plaintiff use due care, the defendant breached that duty, and the breach caused plaintiff’s resulting injury. (Al Shikha v. Lyft, Inc. (2024) 102 Cal. App. 5th 14, 22.) Here, Plaintiff alleges Charles Taylor owed a duty of care to Plaintiff with respect to its testing of the Unit, but negligently inspected and tested the Unit, causing damage to the Property. (Compl., ¶ 40.) In its Demurrer, Charles Taylor argues that Plaintiff has not sufficiently alleged facts necessary to establish either duty or proximate cause.

 

First, Charles Taylor contends it only owed a duty to the Association (its customer), but not to Plaintiff (a third party). Plaintiff alleges Charles Taylor was hired by the Association on June 21, 2024, to conduct a pre-remediation inspection of the Unit. (Id., ¶ 17.) Plaintiff further alleges Charles Taylor was again commissioned by the Association on July 15, 2024, to perform post-remediation air testing in the Unit. (Id., ¶ 21.) Plaintiff also alleges she received an email from the Association’s building manager on July 15, 2024, stating “the post mold clearance passed” as confirmed in Charles Taylor’s Report. (Id., ¶ 21.) In the Court’s view, regardless of who hired Charles Taylor it is reasonable to infer that Plaintiff was a foreseeable victim of any negligently conducted testing or inspection in her Unit. (McGarry v. Sax (2008) 158 Cal.App.4th 983, 994 (“[A] person ordinarily is obligated to exercise due care in his or her own actions so as not to create an unreasonable risk of injury to others. This legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor's conduct.”)) Further, the Court of Appeal has determined that property owners are the intended beneficiaries of commercial transactions involving, for example, pest inspection reports. (Formet v. The Lloyd Termite Control Co. (2010) 185 Cal.App.4th 595, 601.) Thus, Plaintiff has alleged sufficient facts to indicate that Charles Taylor owed her a general duty of care as the owner of the Unit being tested and inspected.

Second, Charles Taylor argues Plaintiff cannot establish a connection between the alleged breach and her damages. Charles Taylor allegedly conducted its inspection of Plaintiff’s Unit on July 15, 2024. (Compl., ¶ 21.) Plaintiff alleges she used her own independent consultants to conduct air and surface tests of her Unit in early August 2024. (Id., ¶ 25.) The independent consultants determined that the Unit tested positive for mold and needed to be re-remediated. (Ibid.) Charles Taylor argues that the three weeks that passed between the two instances of testing on the Unit broke the causal link between Charles Taylor’s conduct and the damages to Plaintiff’s Unit. Nevertheless, Charles Taylor relies entirely on facts contained within the extrinsic Report to support this argument. In the Court’s view, the allegations in the Complaint are sufficient to plead causation. Plaintiff repeatedly alleges that Charles Taylor’s negligence caused damages to her Property. (Id., ¶¶ 27, 30, 40-41.) At minimum, the factual allegations pertaining to Charles Taylor’s alleged negligent acts and/or omissions and the damages to Plaintiff’s Unit are sufficient to support a reasonable inference that Charles Taylor’s inspection and testing was a substantial factor in Plaintiff’s harm. (Id., ¶¶ 17-25.) (Bockrath v. Aldrich Chemical Co., Inc.¿(1999) 21 Cal.4th 71, 78, internal citations omitted (In pleading negligence, causation may be alleged “succinctly and generally, unless the pled facts ‘do not naturally give rise to an inference of causation…’”)) Therefore, Charles Taylor’s Demurrer to the 2nd cause of action for negligence is OVERRULED.

 

B.            3rd Cause of Action: Nuisance — SUSTAINED with LEAVE TO AMEND

 

Plaintiff fails to sufficiently plead an independent claim for nuisance. “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349, as modified on denial of reh'g (Oct. 3, 2007), emphasis added.) In El Escorial Owners' Assn., supra, 154 Cal.App.4th 1337 the Court of Appeal found that the plaintiff’s nuisance cause of action which also claimed that toxic mold was due to negligent construction and incorporated factual allegations of the plaintiff’s negligence cause of action, while also seeking damages rather than an injunction was merely a reiteration of the negligence cause of action and not a separate nuisance claim. (Ibid.)

 

Here, Charles Taylor argues Plaintiff’s nuisance claim is duplicative of her negligence claim. Indeed, Plaintiff alleges Charles Taylor’s failure to properly and professionally test the Unit for mold created an ongoing private nuisance to Plaintiff and the Unit. (Compl., ¶ 44.) Plaintiff incorporates by reference the same allegations applied to her negligence cause of action and does not add any significant new or different facts to her nuisance claim. (Id., ¶¶ 42-47.) Plaintiff also seeks compensatory damages for her nuisance claim, just like her negligence claim. (Id., ¶ 47.) Accordingly, the Court is persuaded that the pleading of the 3rd cause of action for nuisance is sufficiently analogous to the issues raised in El Escorial Owners' Assn., supra, 154 Cal.App.4th 1337 such that Plaintiff’s nuisance claim can be considered duplicative of her negligence claim. (See also Melton v. Boustred (2010) 183 Cal.App.4th 521, 542, internal citations and quotations omitted (“Given the broad definition of nuisance, the independent viability of a nuisance cause of action depends on the facts of each case. Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.”)) Therefore, the Demurrer to the 3rd cause of action for nuisance as to Charles Taylor is SUSTAINED with LEAVE TO AMEND.

 

II.       REQUEST FOR JUDICIAL NOTICE — DENIED

 

Charles Taylor seeks judicial notice of the Mold Post Remediation Verification Report (the “Report”), which is referenced in, but not attached to, the Complaint. (Compl., ¶¶ 21, 23.) Charles Taylor brings this request on two primary grounds. First, Charles Taylor argues the Report is a proper subject of judicial notice under Evid. Code §§ 452(d) & (h), which govern judicial notice of court records and facts that are not reasonably subject to dispute and capable of immediate and accurate determination by sources of reasonably indisputable accuracy. However, the Report itself is not attached to the Complaint (and is thus not a document contained in the court record). Even if the Report were a court record, the Court still cannot take judicial notice of hearsay statements asserted in such documents, but can only take judicial notice of the existence of such documents. (Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768.) Even further, Plaintiff’s allegations pertaining to the Report expressly dispute the truth of the Report’s content. As Plaintiff alleges, “the air clearance test… did not actually test the contaminated areas, and therefore could not have accurately verified that the areas tested were properly remediated or that there was a clean bill of health in the Unit. Moreover, with nearly everything in the Unit concealed, it would have been impossible for Charles Taylor to conduct a visual inspection of the Unit and state, with professional integrity, the following points in Section 3 of its report…” (Compl., ¶ 23.) In other words, the facts alleged on the face of the Complaint demonstrate that the Report and its contents are reasonably subject to dispute. (See e.g. Travelers Indem. Co. v. Navigators Specialty Ins. (4th Dist. 2021) 70 Cal.App.5th 341, 354-55 (“[t]he existence and terms of a private agreement are not facts that are not reasonably subject to dispute and that can be determined by indisputable accuracy. For that reason, when a party opposes the court's consideration of an [agreement] in the context of a demurrer, it is proper for the court to decline to consider the content of the [agreement].”))

 

Second, Charles Taylor relies on Weitzenkorn v. Lesser (1953) 40 Cal.2d 778 to argue the Report may be considered on demurrer because it is referenced in the complaint. The Court finds this contention to be a mischaracterization of the rule set forth in Weitzenkorn. “The general rule is that when a written instrument which is the foundation of a cause of action or defense is attached to a pleading as an exhibit and incorporated into it by proper reference, the court may, upon demurrer, examine the exhibit and treat the pleader's allegations of its legal effect as surplusage.” (Weitzenkorn v. Lesser (1953) 40 Cal.2d 778, 785–786, emphasis added.) Weitzenkorn does not, however, state that a document which is merely referenced but not attached as an exhibit is necessarily “incorporated by reference” into the Complaint. Charles Taylor has not set forth sufficient legal authority to demonstrate that mere reference to an extrinsic document, even if foundational to the allegations, supports a finding that the document is properly subject to judicial notice. “[A] court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.” (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 115.) Therefore, the Court declines to take judicial notice of the Report.

 

Defendant Charles Taylor Engineering Technical Services LLC to serve notice of ruling.  This tentative ruling (“TR”) shall be the order of the Court unless changed at the hearing and shall by this reference be incorporated into the Minute Order.

TR emailed to counsel on 4/8/25 at 8:30 a.m.