Judge: Sandy N. Leal, Case: 2022-01275212, Date: 2023-07-27 Tentative Ruling
1) Demurrer to Amended Complaint
2) Demurrer to Answer
3) Motion to Strike Portions Of Complaint
Defendant Association’s Demurrer
Defendant Capistrano Garden Homes Homeowners Association No. 2’s (“Association”) Demurrer to the First Amended Complaint (“FAC”) is SUSTAINED in part and OVERRULED in part. To the extent the Demurrer is sustained, Plaintiffs are GRANTED 20 days leave to amend.
1st COA – Breach of Contract, and 4th COA – Enforcement of Equitable Servitude
"Facts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity." Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5.
Civil Code Section 5975 states:
“(a) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both. ¶ (b) A governing document other than the declaration may be enforced by the association against an owner of a separate interest or by an owner of a separate interest against the association. ¶ (c) In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.”
Here, Defendant Association correctly argues the FAC fails to state which provisions of the CC&Rs that Defendant Association allegedly breached. Attaching a copy of the CC&Rs to the FAC, which can establish the existence of a contract, without more, is insufficient to show how Defendant Association breached said contract. In addition, the provisions identified by Plaintiffs in their opposition at pp. 4:10-13, involve provisions allegedly breached by the Fergus-Bentall Defendants and not the Association.
Based upon the foregoing, the Demurrer is SUSTAINED as to the 1st and 4th COAs.
6th COA – Breach of implied covenant of good faith and fair dealing
Defendant contends that this cause of action is superfluous because no additional claim is actually stated. In support of the demurrer to this cause of action, Defendant cites Careau &Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395. There, the court stated, “If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated. Thus, absent those limited cases where a breach of a consensual contract term is not claimed or alleged, the only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery.” Ibid.
Defendant is correct that the sixth cause of action does not go beyond the mere contract breach and relies upon the same set of facts, seeking the same damages. Based upon the foregoing, the Demurrer to the 6th cause of action is SUSTAINED.
10th COA – Negligence
“The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate cause between the breach and (4) the plaintiff’s injury.” (Mendoza v. City of Los Angeles (1998) 66 Cal. App. 4th 1333, 1339.) “Duty is the expression of a court’s conclusion that a particular plaintiff is entitled to protection.” (Id.)
Defendant contends that Plaintiffs do not state sufficient facts
to state a cause of action because Defendant does not owe
Plaintiffs an independent duty outside of the CC&Rs.
Defendant relies on Sands v. Walnut Gardens Condo. Assn.
Inc., (2019) 35 Cal. App. 5th 174, 177–78 (Sands), which
provides: “The association argued there was no evidence “as
far as negligence [was] concerned” showing the association
“was on notice of any condition that required repair.” The trial
court rightly decried this effort to “tortify” a creature of private
ordering. (See Erlich v. Menezes (1999) 21 Cal.4th 543, 554,
87 Cal.Rptr.2d 886, 981 P.2d 978 [“If every negligent breach
of a contract gives rise to tort damages the limitation [that
‘breach of contract is tortious only when some independent
duty arising from tort law is violated’] would be meaningless,
as would the statutory distinction between tort and contract
remedies.”].) ¶ Outside the covenants, conditions, and
restrictions, the association had no independent duty as to the
pipes and roof arising from tort law. The Sandses’ trial counsel
conceded the evidence for their negligence claim was “pretty
much the same, under the same thing as a contract ....” The
Sandses give us no authority for a cause of action in tort.
They state: “As with the Cause of Action for Contract, the
duties and obligations for which the HOA, Walnut Gardens,
was responsible, are found in the [covenants, conditions, and
restrictions] ....” ¶ Even had the association omitted this issue
in its nonsuit motion, nothing the Sandses could have done at
trial would have summoned into existence a tort claim barred
by law. (See Lawless, supra, 24 Cal.2d at p. 94, 147 P.2d
604.)” (Emphasis supplied.)
While Plaintiffs attempt to distinguish Sands, it is directly on point. Plaintiffs’ claim is clearly based on a duty of care that arises from the CC&Rs. See, FAC ¶ 118. Outside the CC&Rs, the Association had no alleged independent duty.
Based upon the foregoing, the Demurrer to this cause of action is SUSTAINED.
7TH COA – Nuisance
Defendant argues the nuisance cause of action is uncertain and fails to state sufficient facts because the FAC is vague and fails to state the date the alleged nuisance occurred, or even what nuisance that the Association has engaged in.
In Opposition, Plaintiffs cite to Paras. 54 and 55 of the FAC, which set forth dates of the Fergus-Bentall’s alleged acts, which began in June of 2021 and continuing to date. In addition, Paras. 95-101 allege that Defendant Association’s failure to abate the poor conditions. These allegations are not so vague or poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. See Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 616. In addition, the facts alleged sufficiently plead a cause of action for nuisance.
Based upon the foregoing, the Demurrer as to the 7th cause of action is OVERRULED.
9th COA – Breach of Fiduciary Duty
“In order to plead a cause of action for breach of fiduciary duty, there must be shown the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (Pierce v. Lyman (1991) 1 Cal. App. 4th 1093, 1101.) “The absence of any one of these elements is fatal to the cause of action.” (Id.)
Defendant argues that the Association does not owe a fiduciary duty to its members.
“[I]n recognition of the increasingly important role played by private homeowners’ associations…the courts have recognized that such associations owe a fiduciary duty to their members.” (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d. 642, 650-651.) Generally, fiduciary duties owed by a homeowners association to its members are limited to those arising from its governing documents and relevant statutory requirements, as is alleged here. See, Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 425; Ostayan v. Nordhoff Townhomes Homeowners Assn., Inc. (2003) 110 Cal.App.4th 120, 129.
Defendant also argues that Plaintiffs cannot allege that the Association acted arbitrability or contrary to good faith, which is required in order to plead a cause of action for breach of fiduciary duty, citing Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249,265 [].) However, the FAC at Para. 110 sufficiently alleges that the Association acted in bad faith and refused to enforce the CC&Rs against the Fergus-Bentalls based on Dominic Fergus-Bentalls’ position as a Board member.
Based upon the foregoing, the Demurrer to the 9th cause of action is OVERRULED.
13th COA – Declaratory Relief
Lastly, Defendant argues the cause of action for declaratory relief is unnecessary and moot.
A demurrer to a cause of action may be sustained on the ground that it is duplicative of another cause of action. (Palm Springs Villas II HOA, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)
Under Code of Civil Procedure section 1060, “[a]ny person… who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property… may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action… in the superior court for a declaration of his or her rights and duties in the premises…” “The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action. The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues… Under section 1061 of the Code of Civil Procedure the court may refuse to exercise the power to grant declaratory relief where such relief is not necessary or proper at the time under all of the circumstances. The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief.” (General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470-471.)
Here, Defendant Association correctly states that the declaratory relief cause of action stems from the same allegations in their other causes of actions against the Association.
Based upon the foregoing, the Demurrer as to this cause of action is SUSTAINED.
Moving Party to give notice.
Defendant Association’s Motion to Strike
The Motion to Strike Portions of the FAC by Defendant Association is GRANTED with 20 days leave to amend.
With this motion, Defendant Association moves to strike the allegations and prayer for punitive damages and injunctive relief.
Punitive Damages
The FAC seeks punitive damages associated with the 9th COA (breach of fiduciary duty).
Plaintiff may recover exemplary damages in an action for the breach of an obligation not arising from contract if he proves by clear and convincing evidence that Defendants are “guilty of oppression, fraud, or malice.” Cal. Civ. Code § 3294(a). Malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Cal. Civ. Code § 3294(c)(1). Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Cal. Civ. Code § 3294(c)(2). Fraud is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Cal. Civ. Code § 3294(c)(3).
Punitive damages cannot be pled in conclusory terms, instead the facts supporting a claim for punitive damages must be set out clearly, concisely, and with particularity. Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041 to 1042. However, “it has long been recognized that ‘(t)he distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.’” Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. “What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” Id. In ruling on a motion to strike, the Court should “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; See Perkins, 117 Cal.App.3d at 6 (“stricken language must be read not in isolation, but in the context of the facts alleged in the rest of petitioner’s complaint.”).
In addition, “[w]hen the defendant is a corporation, ‘[a]n award of punitive damages against a corporation…must rest on the malice of the corporation’s employees.’” Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164 (citing Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167).
While Plaintiffs have sufficiently alleged breach of fiduciary duty, they have the FAC is entirely devoid of any specific factual allegations to support a request for punitive damages. Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715-716 (“[A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages.... Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.”) (internal citations omitted). The allegations that the HOA owed a fiduciary duty to Plaintiffs, and that the Association failed to act in good faith to enforce the CC&Rs against the Fergus-Bentalls fail to meet the heightened pleading requirement relating to punitive damages. The allegations fail to establish malice, oppression or fraud on the part of the corporation. Similarly, the conclusory allegation that the HOA acted with oppression, fraud, and malice is also insufficient.
Based upon the foregoing, the motion to strike as to punitive damages is GRANTED.
Injunctive Relief
The FAC seeks injunctive relief associated with the 1st, 2nd, 4th, 5th, 7th, and 8th causes of action.
Code of Civil Procedure section 526(a) states, in pertinent part: “An injunction may be granted in the following cases: (1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. . . (4) When pecuniary compensation would not afford adequate relief. (5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.”
Defendant contends that Plaintiffs fail to state a claim for Injunctive Relief because there is no immediate risk of irreparable harm and there is an adequate remedy at law.
Other than stating injunctive relief is appropriate under the circumstances, Plaintiffs fail to present any argument or authority regarding the same.
Failure to oppose a motion to strike may be construed as having abandoned the claims. See, Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not oppose the County’s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”] In addition, the failure to challenge a contention in a brief results in the concession of that argument. DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”]. Additionally, the court may construe the absence of a memorandum as waiver of all grounds not supported. Rules of Court, Rule 3.1113(a).
Based upon the foregoing, the motion to strike injunctive relief is GRANTED.
Moving Party to give notice.
Plaintiffs’ Demurrer to Answer
Plaintiffs Michele Snavely and David Snavely’s Demurrer to the Fergus-Bentall Defendants’ Answer is CONTINUED to ____________ in this department.
CCP § 430.41 requires the moving party to meet and confer either in person or by telephone with the party who filed the pleading that is the subject of the demurrer. Here, the Boss Declaration demonstrates that the parties met and conferred via email, which is insufficient under CCP § 430.41.
The parties are ORDERED to meet and confer in the manner permitted in CCP § 430.41 and Plaintiff to submit a supplemental declaration that complies with the same.
Moving Party to give notice.