Judge: Stephen P. Pfahler, Case: 22CHCV00170, Date: 2022-08-15 Tentative Ruling

Case Number: 22CHCV00170    Hearing Date: August 15, 2022    Dept: F49

Dept. F-49

Date: 8-15-22

Case #22CHCV00170

Trial Date: Not Set

 

DEMURRER

 

MOVING PARTY: Defendant, Steve Nemany

RESPONDING PARTY: Plaintiff, Smart Bears, LLC

 

RELIEF REQUESTED

Demurrer to the Complaint

·         1st Cause of Action: Breach of Equitable Servitudes (CC&Rs)

·         2nd Cause of Action: Breach of Fiduciary Duties

·         3rd Cause of Action: Negligence

·         4th Cause of Action: Nuisance

·         5th Cause of Action: Failure to Permit Inspection of Records

·         6th Cause of Action: Declaratory Relief

 

Motion to Strike the Entire Complaint

 

SUMMARY OF ACTION

Plaintiff Smart Bears, LLC owns three units within a real estate development governed by Defendant Skyview Homes, Inc. (HOA). The addresses are 13050 Dronfield Ave, Apt. 5, 13040 Dronfield Ave., Unit 10, and 13040 Dronfield Avenue, Unit 22. Defendants Steve Nemany (13050 Dronfield Ave., Unit 16), and Dronfield Investors, LLC (13040 Dronfield Ave., Apt. 23, 13040 Dronfield, Unit 11), are homeowners within the development as well. Units 10 and 11 are next door neighbors, Unit 23 sits directly below Unit 10, and Unit 5 sits below Unit 16. Plaintiff alleges the galvanized interior plumbing and cast iron sewer pipes are at least partially responsible for “continuous water intrusions” originating from common areas and/or neighboring units.

 

Plaintiff alleges section 4.02 of the CC&Rs require the HOA maintain the common areas in “good, clean, attractive and sanitary order and repair.” Common areas include area not owned by individual owners, including “space bounded by and contained within the interior unfinished surfaces of the perimeter walls, floors, ceilings, windows, window frames, doors and door frame and trim…” Plaintiff alleges numerous requests for repairs caused by water damage, and reimbursement following repairs and clean up expenses, which were met with a denial of responsibility.

 

On March 15, 2022, Plaintiff filed a 185 paragraph complaint for Breach of Equitable Servitudes (CC&Rs), Breach of Fiduciary Duties, Negligence, Nuisance, Failure to Permit Inspection of Records, and Declaratory Relief. On May 23, 2022, Defendant Skyview Homes, Inc. answered the complaint. On May 24, 2022, Skyview Homes, Inc. filed a cross-complaint against JC Rooter, Inc. and Julio Cesar Chavez for Implied Equitable Indemnity, Contribution and Apportionment of Fault, Breach of Contract, Negligence, and Declaratory Relief.

 

RULING

Demurrer: Overruled.

Defendant Steve Nemany brings the subject demurrer to the entire complaint, due to the failure to submit the action to alternative dispute resolution prior to filing the action even after Nemany agreed to participate in ADR. Plaintiff in opposition contends the requirements of Civil Code section 5930 are not applicable, due to $130,000 in damages sought, which is in excess of small claims court jurisdictional limits. Plaintiff also challenges the introduction of extrinsic material without seeking judicial notice. Regardless, Plaintiff additionally offers that the HOA refuses to participate in ADR either way, thereby necessitating the complaint. Plaintiff next contends the demurrer is both procedurally improper, due to the citation of an improper section of law, and that each every cause of action is sufficiently pled. Finally, Plaintiff proactively opposes any request for a stay as a result of the demurrer. The court electronic filing system shows no reply on file at the time of the tentative ruling publication cutoff.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) The court therefore declines to consider the exhibits attached to the demurrer, or the declarations submitted with the opposition.

 

It’s not clear from the demurrer itself that Nemany actually raises a challenge on grounds of uncertainty, but Plaintiff submits an opposition on this. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

 

The court begins with the two governing sections raised in the demurrer.

 

(a) An association or a member may not file an enforcement action in the superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution pursuant to this article.

(b) This section applies only to an enforcement action that is solely for declaratory, injunctive, or writ relief, or for that relief in conjunction with a claim for monetary damages not in excess of the jurisdictional limits stated in Sections 116.220 and 116.221 of the Code of Civil Procedure.

…

 

(Civ. Code, § 5930.)

 

(a) At the time of commencement of an enforcement action, the party commencing the action shall file with the initial pleading a certificate stating that one or more of the following conditions are satisfied:

(1) Alternative dispute resolution has been completed in compliance with this article.

(2) One of the other parties to the dispute did not accept the terms offered for alternative dispute resolution.

(3) Preliminary or temporary injunctive relief is necessary.

(b) Failure to file a certificate pursuant to subdivision (a) is grounds for a demurrer or a motion to strike unless the court finds that dismissal of the action for failure to comply with this article would result in substantial prejudice to one of the parties.

 

(Civ. Code, § 5950.)

 

Prayer for Relief section 1 seeks damages of $130,000, which exceeds the jurisdictional limits of Civil Code section 116.220 and 116.221. The complaint was therefore properly filed without any required certificate. Regardless, paragraph 121 of the complaint alleges the attempt to initiated mediation, but due to HOA inaction, no such mediation occurred. The court otherwise finds no noticed or supported challenge to the individual causes of action, and declines to address the opposition points on this. The demurrer is overruled.

 

Motion to Strike: Denied.

Like the demurrer, Nemany challenges the complaint on the language of Civil Code section 5950. Consistent with the reasoning in the demurrer, the motion to strike is denied.

 

In summary, the demurrer is overruled, and the motion to strike denied. Defendant is ordered to answer the complaint within 10 days of this ruling.

 

Moving Defendant to give notice to all parties.