Judge: Thomas S. Mcconville, Case: 2021-01194865, Date: 2023-08-28 Tentative Ruling
Defendant The Harbor Creek Community Association’s Motion for Summary Judgment is DENIED; its alternative request for Summary Adjudication is GRANTED as to the 4th cause of action and is otherwise DENIED.
As to the 1st cause of action for breach of contract and breach of fiduciary duty, the Court finds there are triable issues with respect to whether Defendant breached its obligations under the CC&Rs as well as its fiduciary duties. Here, it is undisputed that the CC&Rs govern the Harbor Creek community which includes the units owned by Plaintiff. (See Response to SSUMF No. 1.) Paragraph 1.13 of the CC&Rs defines “Common Area” as “all areas on the Project, except the Units, and shall further include, without limitation, for maintenance purposes of the Association, but not necessarily by way of fee title, all gas, water and waste pipes, all sewers, all ducts, chutes, conduits, wires and other utility installations of the structures wherever located (except the outlets thereof when located within the Units), the lot upon which the structures are located and the airspace above the structures, all bearing walls, columns, un-finished floors, the roofs, foundation slabs, party walls, utility walls, foundations, private streets or driveways, walk-ways, pool,...parking areas and landscaping on those areas which are not defined as part of the Unit.” (See CC&Rs, Para. 1.13.)
Although Defendant contends that installing the vapor barrier above the slab is Plaintiff’s obligation pursuant to paragraphs 1.17 and 1.42 of the CC&Rs, there is, at a minimum, a triable issue as to whether Defendant breached its obligations by not maintaining or repairing the water and waste pipes and the sewer pipes as there is evidence that these pipes were leaking and corroded and damaged. Plaintiff disputes that it was determined that there was no active leak in Unit 55 and disputes that the investigations and hired professionals determined that the repair obligations fall solely on Plaintiff. (See Response to SSUMF Nos. 5-8.)
Plaintiff presents as evidence a report prepared by Private Eyes Engineers, an engineering firm hired by Plaintiff’s attorney, dated October 28, 2019 which states there is evidence of “excessively corroded cast iron pipes” at the property; that it was determined that the “excessive moisture appears to be primarily caused by moisture from the sub-slab soil being transmitted through the slab”; that “the corroded cast iron pipe from the sewer drain may have played a critical role” in the moisture; that the “floor slab is constructed improperly without a vapor barrier”; and that the “elevated moisture emission conditions at the subject site can be partially attributed to improper construction of the floor slab section”. (See Plaintiff’s Evidence, Exh. E, ¶¶ 3(8), 18, Conclusions & Recommendations A and C.) Private Eyes Engineers also recommended “improving the surface draining system in addition to investigating and repairing the sewer drain lines” and found that “[i]improvements to the surface drainage can significantly reduce the potential for moisture infiltration into the subgrade soils.” (Id., Conclusions & Recommendations E.)
Private Eyes Engineers’ November 5, 2019’s Recommendations states: “In summary, we have determined that elevated levels of moisture existed under the floor slab of this residence. We also believe that plumbing leaks from corroded cast iron pipes may have contributed to the observed elevated levels of moisture. Additionally, the floor slab is constructed without a vapor barrier and cannot adequately resist moisture intrusion. We recommend our clients replace all cast iron pipes under the slab floor with ABS if compliance with the industry standards is desired...” (See Exh. E.)
And, lastly, Plaintiff also presents the testimony of Frank Blefari, a licensed general contractor and the Managing Officer, Chief Executive Officer and President of CBCI Construction, Inc. and Crank Brothers Roofing who attests he “observed a badly rusted and cracked and leaking sewer pipe”; opines that “the soil that was surrounding the leaking cast iron sewer pipe was contaminated with raw sewage”; “the plumber who the Association hired...put the contaminated dirt back into the open hole”; “the contaminated dirt remains as does the open hole through the slab of Unit 55”; opines that the streams that run throughout the community “are contributing to the water problems that are affecting the units”; that the “streams leak due to the way that they are designed and maintained by the Association”; that he opines “the metal in the slab has been rusted and the slab itself is deteriorating”; and that there is a leaking sewer line that also leaked raw sewage into the oil. (See AMF Nos. 1-12; see also Blefari Decl., ¶¶ 4-7, 10, 12, and 16.)
Whether there has been a material breach of a contract is normally a question of fact. (Bos. LLC v. Juarez (2016) 245 Cal.App.4th 75, 87.)
As to the 2nd cause of action for negligence, the Court finds there are triable issues with respect to breach of duty. Defendant contends that summary adjudication is proper on Plaintiff’s second cause of action for negligence because it is dependent on her allegation that Defendant failed to repair the slab, i.e., an alleged breach of the CC&Rs; that the mere negligent breach of a contract is insufficient to recover in tort; and that there can be no breach of duty because Defendant hired professionals to determine the cause or source of the leak and they determined no active leak existed in Unit 55. However, as set forth above, there is a triable issue as to whether an active leak or leaks existed in the pipes, and whether Defendant acted appropriately in addressing Plaintiff’s concerns. (See supra.) As such, there is also a triable issue as to whether Defendant breached its duty of care to Plaintiff which is generally a question of fact. (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 833.)
As to the 3rd cause of action for nuisance, the Court finds there are triable issues with respect to whether Defendant’s conduct created a nuisance. Plaintiff’s claim of nuisance largely mirrors her claim of Defendant’s failure to care for the common areas: causing leaking pipes under her unit, which leads to water coming through the slab in her unit; that there is raw sewage in the soil such that the moisture that enters her unit is contaminated and poses a health hazard; that Plaintiff has been unable to rent her Unit 55 since July 2019 and has lost rent; and that she has been unable to rent her Unit 119 at full market value due to water problems at Harbor Creek community. (See AMF Nos. 6-13.)
As to the 4th cause of action for breach of the implied covenant of good faith and fair dealing, the Court finds that Defendant has satisfied its obligation to establish that this cause of action simply restates the same facts on which the 1st cause of action is based, and therefore grants the motion as to this cause of action. Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. App. 3rd 1371, 1395 (“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.”).
As to the 8th cause of action for declaratory relief, the Court finds that Defendant failed to meet its initial burden. Defendant contends this cause of action is superfluous and unnecessary. The Court is not persuaded that this supports the conclusion that judgment should be entered for Defendant.
Defendant’s request for judicial notice is granted.
Each parties’ evidentiary objections are overruled.
Moving Party is to give notice.