Judge: Theodore R. Howard, Case: 21-1201005, Date: 2022-08-11 Tentative Ruling

The demurrer by defendant Deerfield Community Association (“Deerfield”) to the 3rd through 9th causes of action pleaded in the second amended complaint (“SAC”) by plaintiffs Lora Bales and Dean Bales (together “Plaintiffs”) is SUSTAINED.  Deerfield’s Motion to Strike the Entire SAC is DENIED.

Plaintiffs are permitted 15 days leave to amend as to the 3rd, 4th, 5th, 6th and 9th causes of action.

Plaintiffs’ request for sanctions is DENIED.

Motion 1: Demurrer

3rd, 5th, and 6th Causes of Action (Negligence, Intentional Infliction of Emotional Distress [IIED], Negligent Infliction of Emotional Distress [NIED])

As the Court previously stated in the first round of demurrers, negligence, IIED and NIED all fall within the 2-year period of limitations set forth in CCP §335.1 for injury caused by the wrongful act or neglect of another.  The statute of limitations begins to run for negligence when the plaintiff has discovered or through the use of reasonable diligence should have discovered the negligent act causing the injury.  The actual notice of facts indicating negligence causes the statute of limitations to run.  Elextronic Equipment express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 855-856.

Plaintiffs allege that they advised Deerfield of the ongoing violations of the CCR’s in October 2018, but Deerfield failed to resolve the disputes and mismanaged the ongoing dispute despite a multitude of requests over years.

As with the FAC, on the face of the SAC, the 3rd cause of action for negligence, 5th for IIED and 6th for NIED are barred by the 2-year statute of limitations.  The face of the complaint shows that Plaintiffs were on notice of the cause of their injury by 10/25/2018 (that Deerfield was not enforcing the CC&Rs- SAC ¶¶146, 250, 300) but did not file their complaint for these negligence-based causes of action until 5/10/2021, more than 2 years after the alleged negligence occurred.

Thus, the demurrer to the 3rd, 5th and 6th causes of action is SUSTAINED with one final opportunity to amend.

4th Cause of Action (Negligence Per Se)

Evidence Code §669 sets forth the doctrine known as negligence per se.  Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1246.  Negligence of a person is presumed if he violated a statute, ordinance or regulation of public entity and the violation proximately caused the death or injury to person or property.

Plaintiffs allege that Deerfield violated the CC&R’s.  (¶164).  Again, similar to the FAC, the SAC fails to allege a violation of a statute, ordinance or regulation of a public entity.  Therefore, the demurrer to the 4th cause of action is SUSTAINED with one final opportunity to amend.

7th and 8th Causes of Action (No Exclusive Possessory Interest and Injunctive Relief)

A party given leave to amend following a demurrer is only authorized to amend as permitted by the court ruling.  People By & Through Dep't of Pub. Works v. Clausen (1967) 248 Cal.App.2d 770, 785–86; Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023; Taliaferro v. Davis (1962) 220 Cal.App.2d 793, 794–95.  A plaintiff may not amend to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.  Harris v. Wachovia Mortgage, FSB, 185 Cal.App.4th at 1023 [adding new cause of action after demurrer improper]; People ex rel Department Public Works v. Clausen, 248 Cal.App.2d at 785 [adding new party after demurrer improper].

Here, the Court’s February 3, 2022 Order sustaining Deerfield’s demurrer to Plaintiffs’ FAC with leave to amend did not permit the addition of new causes of action against Deerfield.  (See ROA 201.)  The FAC included the 7th and 8th causes of action as against the Belenardos only.  The SAC now asserts these causes of action against both the Belenardos and Deerfield.  Thus, the 7th and 8th causes of action assert new claims against Deerfield that are not within the scope of the Court’s previous order in the last round of demurrers.

Accordingly, the demurrer to the 7th and 8th causes of action is SUSTAINED without leave to amend.  People By & Through Dep't of Pub. Works v. Clausen, 248 Cal.App.2d at 785–86; Harris v. Wachovia Mortg., FSB, 185 Cal.App.4th at 1023.

9th Cause of Action (Permanent and temporary encroachments)

Plaintiffs seek removal of encroachments onto their property.  (¶373).  In an action between adjoining landowners, when the defendant without privilege occupies the plaintiff’s property, an injunction may be granted to remove the encroachment.  Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 649.

The SAC alleges that the Belenardos constructed a dam, jacuzzi, deck and planter on Plaintiffs’ property (¶374) and “over the years of improper drainage” caused by the encroachment violations from Defendants jacuzzi, planter and decking, Plaintiffs’ foundation and property were damaged.  (¶375).  The SAC refers to Exhibit C stating that Deerfield failed to take any corrective actions to resolve the property violations and encroachments.  (¶395-396).

Again, the SAC fails to allege sufficient facts to constitute a cause of action for encroachment against Deerfield.  Deerfield, as the HOA, is not alleged to have constructed or occupied Plaintiffs’ property without privilege.  The SAC alleges encroachments by the Belenardos only.

Accordingly, the demurrer to the 9th cause of action is SUSTAINED with one final opportunity to amend.

Request for Judicial Notice

Deerfield’s request for judicial notice is GRANTED as to the existence and legal effect of Exs. 1-4 to the RJN, but not as to the factual matters stated therein.  Evidence Code §§ 452(c), (h), 453; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.

Motion 2: Motion to Strike

Deerfield’s motion to strike Plaintiffs’ entire action pursuant to Civil Code §5930 (a) for failing to endeavor to submit the dispute to alternative dispute resolution (“ADR”) prior to filing this action and failing to file a Certificate of Compliance (Civil Code §5950) is DENIED.

When ruling on a motion to strike, the allegations of the pleading are to be read as a whole, all parts in their context and the truth thereof assumed.  Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696, 704.

Civil Code §5930 states, in pertinent part:

“(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.”

In light of the Court’s ruling sustaining the demurrer to the 8th cause of action without leave to amend, the SAC does not seek injunctive relief against Deerfield.  The SAC also does not seek declaratory or writ relief against Deerfield.  Rather, Plaintiffs seek damages in excess of $25,000 (SAC ¶ 22), such that Civil Code §5930 does not apply to Plaintiffs’ action.

Accordingly, Deerfield’s motion to strike is DENIED.

Moving party to give notice.