Judge: Theodore R. Howard, Case: 21-1186508, Date: 2023-08-17 Tentative Ruling
Before the Court is the Demurrer by Spinnaker Run Community Association (“HOA”) and Carol Wilson as to the Second Amended Complaint as well as a Motion to Strike. The Demurrer is SUSTAINED and the Motion to Strike is GRANTED, in part, and MOOT in part.
DEMURRER
Plaintiffs concede the propriety of the demurrer as to the 2nd cause of action for Declaratory and Injunctive Relief and the 4th cause of action for Willful Misconduct/Financial Elder Abuse. (Opp at 1:12-13) Plaintiffs also concede the propriety of Carol Wilson’s demurrer to the SAC. Accordingly, the demurrer is SUSTAINED as to the 2nd and 4th causes of action and as to the claims made against Carol Wilson.
The remaining issue in the demurrer is the Negligence cause of action asserted by Thomas and Jailyn Kramer (“Plaintiffs”) against the HOA. The issue is whether the Plaintiffs as tenants have standing to assert their claims against the HOA.
“The elements of a cause of action for negligence are well established. They are '(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.' ” (Ladd v. Cty. of San Mateo (1996) 12 Cal. 4th 913, 917.) “Standing is the threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer.” (Martin v. Bridgeport Cmty. Assn., Inc. (2009) 173 Cal. App. 4th 1024, 1031–32.)
In Martin the tenants of a unit within an HOA sued the HOA premised on duties the HOA owed to the owner under the HOA’s governing documents and the Davis-Stirling Act. Specifically, the plaintiffs alleged the HOA had breached its duties by “improper use and maintenance of the watering system, which caused water damage to the property.” (Martin at 1037.) The court sustained the demurrer as to the Negligence cause of action on the grounds that “The duty they pleaded as being breached, however, was [the HOA’s] duty to maintain the common grounds. That duty arises out of the Davis–Stirling Act and the CC & Rs, not out of common law principles of negligence. Thus, as we previously concluded, it is a duty owed only to members of [the HOA], i.e., the owners.” (Martin at 1037)
The HOA has the duty under the CC&Rs to maintain and repair the common areas in a way that is “necessary or proper.” (CC&Rs at §§2.02, 2.07) Plaintiffs’ claim that the HOA failed to repair the water leak and resulting damage in a proper manner is a breach of a duty arising from the CC&Rs which can only be enforced by an owner. (Martin at 1038.)
Plaintiffs also assert the HOA had a “special relationship” with them because it was “acting in the capacity of landlord over the common areas.” (SAC at ¶79) The Plaintiffs rely upon Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490. However, this same argument was made in Martin and rejected by the Court which stated:
“Citing Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, the Martins contend that BCA had a common law duty “to exercise due care for the residents' safety in those areas under [the association's] control,” similar to a duty a landlord owes to his tenants. (Id. at p. 499.) The duty they pleaded as being breached, however, was BCA's duty to maintain the common grounds. That duty arises out of the Davis–Stirling Act and the CC & Rs, not out of common law principles of negligence. Thus, as we previously concluded, it is a duty owed only to members of BCA, i.e., the owners.” (Martin at 1037.)
Plaintiffs also allege the HOA owed them a “non-delegable duty apart from the dictates of the CC&R’s to ensure that all mold toxins within, and resulting from conditions within, common areas of units” were eliminated. (SAC at ¶79) However, the mold allegation is that there was water migration or a slab leak in the common area caused by a failure to maintain the common area which resulted in the mold. The HOA’s duty to maintain and repair the common area in a way to prevent water migration is a duty owed to the owner, and not the tenants.
Plaintiffs also cite to J’Aire Corp v. Gregory (1979) 24 Cal.3d 799 which holds that a contractor has a “duty to complete construction in a manner that would have avoided unnecessary injury to appellant's business, even though the construction contract was with the owner of a building rather than with appellant, the tenant.” (J’Aire at 805; Opp. at 8:9-20) However, the plaintiffs are not suing the contractor and are instead suing the HOA. Martin clearly holds that the duty to maintain and repair the common area is a duty arising under the Davis-Stirling Act and a duty owed to the owner, not the tenants.
The Plaintiffs have now had had multiple opportunities to plead a cause of action. Plaintiffs do not request leave to amend. Accordingly, the entire demurrer is SUSTAINED without leave to amend.
MOTION TO STRIKE
Defendants move to strike “Plaintiffs’ prayer for punitive damages, Section I pg. 29, lines 3-5” which relates to the prayer for punitive damages in connection with the 5th cause of action for nuisance. The 5th cause of action for Nuisance in the SAC does not contain any facts which would support a claim for punitive damages on behalf of Rosemary Kramer. Plaintiffs are required to plead malice, oppression, or fraud in order to sustain a claim for punitive damages. (Hall v. Berkell (1955) 130 Cal.App.2d 800, 804 - no basis to award punitive damages because complaint contains no allegations of malice, oppression, or fraud, nor any demand for exemplary damages.”
Defendants also move to strike “any other cited request for punitive damages referenced throughout the SAC.” (MTS at 2:4-5) Presumably, this refers to the reference to punitive damages made at ¶67 in the Elder Abuse cause of action. However, as Plaintiffs concede the demurrer to the Elder Abuse cause of action should be sustained, this portion of the Motion to Strike is MOOT.
Accordingly, the motion to strike the reference to punitive damages at pg. 29, lines 3-5 is GRANTED and the Motion to Strike is MOOT as to the reference to punitive damages made at ¶67.
Counsel for moving party is ordered to give notice of this rulling.