Judge: Virginia Keeny, Case: 22VECV01077, Date: 2022-12-05 Tentative Ruling
Case Number: 22VECV01077 Hearing Date: December 5, 2022 Dept: W
MICHAEL Z
LAVIE v. ENCINO OAKS HOMEOWNERS ASSOCIATION, A CALIFORNIA HOMEOWNERS
ASSOCIATION, et al.
Defendants
ENCINO OAKS HOMEOWNERS ASSOCIATION, JULIE HELDT, RICHARD DONATONE, and JEFF TOLA
DEMURRER to the complaint
Date of Hearing: December
5, 2022 Trial
Date: None
set.
Department: W Case
No.: 22VECV01077
Moving Party: Defendants
Encino Oaks Homeowners Association, Julie Heldt, Richard Donatone, and Jeff
Tola
Responding Party: Plaintiff
Michael Z Lavie
Meet and Confer: Yes.
(Pelcic Decl. ¶¶3-4.)
BACKGROUND
Plaintiff Michael Z. Lavie alleges he
is a homeowner of a condominium commonly known as 5460 White Oak Ave., Unit
F-208, Encino, California 91316. The condominium is part and parcel of Defendant
Encino Homeowners Association. Plaintiff alleges in March 2020, a water pipe in
Plaintiff’s condominium Unit exploded causing severe water damage to the inner
walls of the Unit, floors, as wll as the living room and dining room. As the
damages originated from the original construction of the building, Plaintiff
alleges the repairs were the HOA’s responsibility. Plaintiff alleges, however,
after a few weeks of construction, Defendants stopped paying the construction
company and as a result, the contractor stopped work for lack of payment.
Plaintiff contends his unit has now sat dormant in complete disrepair from
about mid April 2020 to present. Plaintiff alleges Defendants Julie Heldt,
Richard Donatone, Jeff Tola, and Miste Holloway hold positions on the HOA board
and Defendant Brad Watson is the owner of Defendant Property Management
Professionals, the property management company for the HOA. Plaintiff contends
Defendant Witkin & Neal are also property managers who collect the HOA dues
and disburse monies at the direction of the HOA.
On July 28, 2022, Plaintiff Michael Z.
Lavie filed a complaint against Defendants Encino Oaks Homeowners Association, Witkin
& Neal, Inc., Brad Watson individually and dba Property Management Professionals,
LLC, Julie Heldt, Richard Donatone, Jeff Tola, and Miste Holloway asserting
causes of action for 1) Breach of Fiduciary Duty; 2) Intentional Infliction of
Emotional Distress; 3) Negligent Infliction of Emotional Distress; 4) Elder
Abuse; 5) Breach of Contract – Written; and 6) Breach of Contract – Implied.
Defendants Encino Oaks Homeowners
Association, Julie Heldt, Richard Donatone, and Jeff Tola now demur to the
complaint. Defendants Brad Watson, Miste Holloway, and Property Management
Professionals LLC join in Defendants’ demurrer.
[Tentative] Ruling
Defendants’
Demurrer to the First, Second, Third, Fourth, and Fifth Causes of Action are
SUSTAINED WITH LEAVE TO AMEND. The Demurrer to the Sixth Cause of Action is
OVERRULED.
DISCUSSION
Request for Judicial Notice
Defendants request this court take
judicial notice of the following documents: (1) a Declaration Establishing a
Plan of Condominium Ownership for Encino Oaks recorded in the Official Records
of the County of Los Angeles on March 11, 1991 as Document Number 91-342346
(Exh. A); (2) a Grant Deed by Federal Home Loan Mortgage Corporation conveying
title to Plaintiff and Nora Ibarra of the real property commonly known as 5460
White Oak Avenue, Unit F-208, Encino, California and recorded in the Official
Records of the County of Los Angeles on February 6, 1997 as Document Number
97-203637 (Exh. B); (3) a Judgment of Dissolution entered on November 6, 2017
in the matter of Nora Magdalena Lavie vs. Michael Zilcha Lavie, Los
Angeles County Superior Court Case Number BD632849 (Exh. C); (4) a Grant Deed
by Plaintiff and Nora Ibarra (now Lavie) to Nora Lavie as her sole and separate
property of the real property commonly known as 5460 White Oak Avenue, Unit
F208, Encino, California and recorded in the Official Records of the County of
Los Angeles on May 24, 2002 as Document Number 02-1203721 (Exh. D); and (5) a
Grant Deed by Nora Lavie to Plaintiff of the real property commonly known as 5460
White Oak Avenue, Unit F-208, Encino, California and recorded in the Official
Records of the County of Los Angeles on February 23, 2021 as Document Number
20210295222 (Exh. E).
The court grants Defendants’ request
for judicial notice. (Evid. Code §452(c), (d); See Fontenot v. Wells Fargo Bank, N.A. (2011)
198 Cal.App.4th 256, 265; Yvanova v. New
Century Mortgage Corp. (2016) 62 Cal. 4th 919, 924, fn. 1.)
In reply, Defendants further request this court take judicial
notice of several more deeds of trust and court orders. (RJN Exhs. 1-10.) The
court grants Defendants’ request for judicial notice.
Analysis
I.
First Cause of Action
Defendants demur to Plaintiff's first
cause of action for breach of fiduciary duty on the grounds Defendants were not
in a fiduciary relationship with Plaintiff, as a matter of law.
The elements for a breach of fiduciary
duty cause of action are “the existence of a fiduciary relationship, its
breach, and damage proximately caused by that breach.” (Thomson v. Canyon
(2011) 198 Cal.App.4th 594, 604.) “‘[B]efore a person can be charged
with a fiduciary obligation, he must either knowingly undertake to act on
behalf and for the benefit of another, or must enter into a relationship which
imposes that undertaking as a matter of law.’” (Hasso v. Hapke (2014)
227 Cal.App.4th 107, 140 (quoting Committee on Children’s Television, Inc.
v. General Foods Corp. (1983) 35 Cal.3d 197, 221).) “A fiduciary duty under
common law may arise ‘when one person enters into a confidential relationship
with another.’” (Id.)
Defendants argue Plaintiff was not a
member of the HOA at the time of the events alleged in the complaint and
accordingly, Defendants did not owe him a fiduciary duty. (See Cohen v. Kite
Hill Community Assn. (1983) 142 Cal.App.3d 642, 650-651.) Defendants
present the following judicially noticed documents: On February 6, 1997, Plaintiff
took title to the Property with Nora Ibarra, as joint tenants, by deed from Federal
Home Loan Mortgage Corporation. (RJN, Exh. B.) Plaintiff and Nora Ibarra subsequently
married. (RJN, Exh. C.) On May 24, 2002, Plaintiff and Nora Ibarra (now Lavie)
conveyed their interest in the Property to Nora Lavie as her sole and separate property.
(RJN, Exh. D.) On November 6, 2017, a Judgment of Dissolution was entered, terminating
the marriage of Plaintiff and Nora Lavie. (RJN, Exh. C.) On February 23, 2021,
Nora conveyed title to the Property to Plaintiff. (RJN, Exh. E.) Accordingly, Plaintiff
did not hold title to the Property during the more than eighteen years between
May 24, 2002 and February 23, 2021.
In opposition, Plaintiff argues he was the
Trustee and beneficiary to a constructive trust. Plaintiff contends the
constructive trust was created by his ex-wife Nora’s failure to transfer title
to the condominium for some 3 years and 3 months after ordered to do so via
Judgment. A constructive trust is an equitable remedy. It is an involuntary equitable trust created
by operation of law as a remedy to compel the transfer of property from the person
wrongfully holding it to the rightful owner. Three conditions must be shown to
impose a constructive trust: (1) a specific, identifiable property interest,
(2) the plaintiff’s right to the property interest, and (3) the defendant’s
acquisition or detention of the property interest by some wrongful act. (Higgins v. Higgins¿(2017) 11
Cal.App.5th 648, 659.)
The court finds Plaintiff has failed to
allege facts sufficient to support a cause of action for breach of fiduciary
duty. As noted by Defendants, Plaintiff was not a member of the HOA at the time
of the incident nor has Plaintiff alleged a constructive trust. The court
disagrees with Defendants, however, that Plaintiff cannot amend their complaint
to show the creation of a constructive trust or that the contracting parties
intended to benefit Plaintiff and the intent to benefit Plaintiff appears from
the express terms of the contract. Plaintiff has demonstrated the existence of
real property, his right to the real property per the Judgment of Dissolution
and his ex-wife’s wrongful detention of the real property during the time of
the incident. The court notes that the Judgment of Dissolution provided that
the Plaintiff shall sell the property. However, Plaintiff’s obligation to sell
the property did not obviate Defendants’ fiduciary duties. The court also notes
the fact that the HOA fees have not been paid or liens exist on the property
does not negate Plaintiff’s damages.
Accordingly, Defendants’ demurrer to
the first cause of action is SUSTAINED WITH LEAVE TO AMEND.
II.
Second Cause of Action
Defendants demur to Plaintiff's second
cause of action for intentional infliction of emotional distress on the grounds
Defendants did not owe Plaintiff the requisite duty of care, as a matter of law.
The elements for a cause of action for
intentional infliction of emotional distress are (1) extreme and outrageous
conduct by the defendant with the intention of causing, or reckless disregard
of the probability of causing, emotional distress; (2) the plaintiff’s
suffering severe or extreme emotional distress; and (3) an actual and proximate
causal link between the tortious conduct and the emotional distress. (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1050.)
Defendants again argue any obligation to
pay for the repairs to the property would run to the holder of title to the
Property, not to Plaintiff. However, as discussed above, Plaintiff has
demonstrated a reasonable probability of successful amendment given the
deficiencies discussed above. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
347.)
Accordingly, Defendants’ demurrer to
the second cause of action is SUSTAINED WITH LEAVE TO AMEND.
III.
Third Cause of Action
Defendants demur to Plaintiff's third
cause of action for negligent infliction of emotional distress on the grounds Defendants
did not owe Plaintiff the requisite duty of care, as a matter of law.
Negligent infliction of emotional
distress is a form of the tort of negligence, to which the elements of duty,
breach of duty, causation and damages apply. (Huggins v. Longs Drug Stores
California, Inc. (1993) 6 Cal.4th 124, 129.) The existence of a duty is a
question of law. (Id.)
As discussed above, Plaintiff has
demonstrated a reasonable probability of successful amendment. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 347.) Accordingly, Defendants’ demurrer to
the third cause of action is SUSTAINED WITH LEAVE TO AMEND.
IV.
Fourth Cause of Action
Defendants demur to Plaintiff's fourth
cause of action for elder abuse on the grounds Defendants did not owe Plaintiff
the requisite duty of care, as a matter of law, and the conduct alleged by
Plaintiff in the complaint cannot be found by any reasonable trier of fact to
constitute elder abuse.
To plead elder abuse, the plaintiff
must allege “facts establishing that the defendant: (1) had responsibility for
meeting the basic needs of the elder or dependent adult, such as nutrition,
hydration, hygiene or medical care [citations]; (2) knew of conditions that
made the elder or dependent adult unable to provide for his or her own basic
needs [citations]; and (3) denied or withheld goods or services necessary to
meet the elder or dependent adult’s basic needs, either with knowledge that
injury was substantially certain to befall the elder or dependent adult (if the
plaintiff alleges oppression, fraud or malice) or with conscious disregard of
the high probability of such injury (if the plaintiff alleges recklessness)
[citations].” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 406-07.) “The plaintiff must also allege . . . that the
neglect caused the elder or dependent adult to suffer physical harm, pain or
mental suffering.” (Id. at 407.) “[T]he facts constituting the neglect
and establishing the causal link between the neglect and the injury ‘must be
pleaded with particularity,’ in accordance with the pleading rules governing
statutory claims.” (Id. (quoting Covenant Care, Inc. v. Superior
Court (2004) 32 Cal.4th 771, 790).)
Defendants argue the only allegations
by Plaintiff of Defendants' conduct is their failure to pay for repairs to the
Property and because Plaintiff was not a member of the HOA, Defendants were not
under any obligation to Plaintiff to pay for repairs to the Property.
Defendants further argue it is unclear specifically what Plaintiff alleges
constituted Financial Elder Abuse.
Upon review of the complaint, it appears
that Plaintiff is only alleging physical harm and/or pain and/or mental
suffering. (Complaint ¶49.) There are no allegations of financial elder abuse.
Regardless, the court agrees Plaintiff has failed to allege facts sufficient to
state a cause of action for elder abuse. Plaintiff has failed to allege he was
a member of the HOA or that a constructive trust exists, or the conduct that
would constitute elder abuse. However, Plaintiff has demonstrated a
reasonable probability of successful amendment. (Goodman v. Kennedy (1976)
18 Cal.3d 335, 347.)
Accordingly, Defendants’ demurrer to
the fourth cause of action is SUSTAINED WITH LEAVE TO AMEND.
V.
Fifth Cause of Action
Defendants demur to Plaintiff's fifth
cause of action for breach of written contract on the grounds Defendants and Plaintiff were not in a contractual
relationship at the time of the alleged wrongful acts, as a matter of law.
“The standard elements of a claim for
breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff
therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164
Cal.App.4th 1171, 1178.)
Defendants argue the only contract
alleged by Plaintiff in the complaint is a contractual relationship created by
the CC&Rs between the HOA and its members and since Plaintiff was not a
member of the HOA nor did he hold title to the Property at the time of the acts
relevant here, there was no contract about which Plaintiff may complain.
The court finds Plaintiff has failed to
allege facts sufficient to state a cause of action for written contract. “A
written contract may be pleaded by its terms—set out verbatim in the complaint
or a copy of the contract attached to the complaint and incorporated therein by
reference—or by its legal effect.” (McKell v. Washington Mutual, Inc.
(2006) 142 Cal.App.4th 1457, 1489.) “In order to plead a contract by its legal
effect, plaintiff must allege the substance of its relevant terms.” (Id.) Based
on the allegations, it is unclear whether the terms of the CC&Rs included
language owed to a constructive trustee. Plaintiff has not attached the
CC&Rs to the complaint nor has he incorporated the terms by reference or
its legal effect.
Accordingly, Defendants’ demurrer to
the fifth cause of action is SUSTAINED WITH LEAVE TO AMEND.
VI.
Sixth Cause of Action
Defendants demur to Plaintiff’s sixth
cause of action for breach of implied contract on the grounds Defendants and
Plaintiff were not in a contractual relationship at the time of the alleged
wrongful acts, as a matter of law.
“A cause of action for breach of
implied contract has the same elements as does a cause of action for breach of
contract, except that the promise is not expressed in words but is implied from
the promisor’s conduct.” (Yari v. Producers Guild of America, Inc.
(2008) 161 Cal.App.4th 172, 182.)
Plaintiff alleges from April 2020 to
the present, defendants and each of them, have made numerous oral communications
to Plaintiff that repairs would be completed on his Unit. (Complaint ¶58.) After
the first few weeks of construction, on a date unknown to Plaintiff, payments
by the HOA to the Contractor stopped and all work stopped for lack of payment.
(Complaint ¶21.) However, Defendants have failed to make available to Plaintiff
all that is necessary to reasonably access and gain the benefits as a paying
member of the HOA. (Complaint ¶59.)
The court finds these allegations are
sufficient to support a claim for breach of implied contract. Accordingly,
Defendants’ demurrer to the sixth cause of action is OVERRULED.