Judge: Stephen P. Pfahler, Case: 22CHCV00178, Date: 2022-10-19 Tentative Ruling
Case Number: 22CHCV00178 Hearing Date: October 19, 2022 Dept: F49
Dept.
F-49
Date:
10-19-22
Case
#22CHCV00178
Trial
Date: Not Set
STRIKE
MOVING
PARTY: Defendant, Quail Ranch Estates HOA, Inc.
RESPONDING PARTY: Plaintiff, Don Khalighi,
et al.
RELIEF
REQUESTED
Motion
to Strike the First Amended Complaint
·
2nd
Cause of Action: Breach of Fiduciary Duty
SUMMARY
OF ACTION
Plaintiffs
Don and Armenouhi Khalighi are homeowners within a real estate development
governed by Quail Ranch Estates HOA, Inc. (HOA). Pursuant to “Articles and
Bylaws,” the HOA collected $150/month in assessments for the benefit of
participating homeowners. Plaintiffs alleges the individual defendant officers
comprising the HOA board violated “respective fiduciary duties,” due to their
failure to pay annual fees to the State of California, thereby leading to the
suspension of the HOA as a corporate entity; failed to hold required meetings;
failed to inform homeowner members regarding “various contracts” for common
area maintenance and landscaping; failed to provide adequate financial records
upon demand of Plaintiffs; and, authorized improper expenditures and
withdrawals without apparent board and/or homeowner approval.
On
March 17, 2022, Plaintiffs filed their complaint for Breach of Contract,
Negligence, Embezzlement, Fraud, Accounting and Declaratory Relief. On July 11, 2022,
Defendant Michael Morrell answered the complaint.
On
August 2, 2022, the court sustained the demurrer of Quail Ranch Estates HOA,
Inc. with 30 days leave to amend. On August 24, 2022, the court sustained the
demurrer of Tammy Booker to the fraud and embezzlement causes of action. On
August 24, 2022, Plaintiff also filed a first amended complaint for Breach of
Contract, Breach of Fiduciary Duty, Embezzlement, Fraud, Accounting and Declaratory Relief.
On
September 26, 2022, Quail Ranch Estates HOA, Inc. answered the complaint and
filed a cross-complaint against Don and Armenouhi Khalighi for Account Stated,
Money Paid, Open Book Account, Quantum Meruit, and Violation of the CC&Rs.
RULING: Granted.
Defendant Quail Ranch Estates HOA,
Inc. brings the subject motion to strike the breach of fiduciary cause of
action in the first amended complaint on grounds that the breach of fiduciary
cause of action was added without leave of court following the August 2, 2022,
order sustaining the demurrer with leave to amend.
Plaintiffs in a seven court day, 11 calendar day late
opposition contend to their right to add new causes of action following a
demurrer. Plaintiffs maintain the breach of fiduciary duty causes of action
arises from the prior allegations. The court docket shows no reply on file at
the time of the tentative ruling publication cutoff.
Quail Ranch Estates HOA, Inc. filed its motion to strike concurrent
with the answer and cross-complaint on September 26, 2022. A party files a
motion to strike as its responsive pleading, not concurrent documents. (Code
Civ. Proc., § 435.)
The court however, in its discretion, considers the added
breach of fiduciary duty cause of action.
(Code Civ. Proc., § 436.) A party may not add a new cause of action
following a demurrer without leave of
court. (Harris v. Wachovia Mortgage,
FSB (2010)
185 Cal.App.4th 1018, 1023.) The breach of fiduciary duty cause of action was
added without leave of court, and
therefore subject to a motion to strike. The court declines to consider the
seven court day late opposition seeking to retroactively justify the violation
of the court order. The court therefore strikes the second cause of action for
breach of fiduciary duty. The answer Quail Ranch Estates HOA, Inc. is deemed filed.
Demurrers of Tammy and Patrick
Brooker set for February 15 and 21, 2023, respectively.
Quail
Ranch Estates HOA, Inc. to give notice.