Demurrer and Motion to Strike (Judge David R. Chaffee)

Defendant?s Demurrer and Motion to Strike First Amended Complaint

Defendant BREA CORSICAN VILLAS HOMEOWNERS ASSOCIATION demurs to the 1st and 3rd causes of action in the First Amended Complaint filed on 1/24/17 by Plaintiffs JOAN WRIGHT-ROMERO and STEPHEN ROMERO.

Defendant also moves to strike certain portions of the FAC.

The court OVERRULES the Demurrer in part and SUSTAINS it in part with and without leave to amend, as set forth below.? The court GRANTS the Motion to Strike with leave to amend.

Within 15 calendar days after service of notice of this ruling, Plaintiffs shall file a Second Amended Complaint that cures the defects noted below.? All new allegations therein shall be set forth in boldface type so that the court and the parties may more readily identify any new language.

  1. Demurrer
  1. 1st COA: Breach of Written Contract
  1. 1.???????? No ADR Certificate Attached to Original Complaint

OVERRULED on this ground.

Defendant argues that because this is a lawsuit against a common interest development, the lawsuit is governed by the Davis-Sterling Act (CC 4100 et seq.)? Defendant argues that Plaintiffs have failed to comply with the? Davis-Sterling Act because they did not file the certificate required under Civil Code 5950 (a), verifying that one or more of the following conditions has been satisfied:

  1. ADR has been completed; or
  1. the other parties did not accept the terms offered for ADR; or
  1. preliminary or temporary injunctive relief is necessary.

In Opposition, Plaintiffs argue that they did attach the required certificate at page 10 of their FAC.? The certificate states that the parties did attempt to proceed to ADR, but the HOA did not accept the terms offered for ADR.? The certificate also states that preliminary and/or temporary injunctive relief is necessary.

In Reply, Defendant argues that it is not sufficient for Plaintiffs to attach this certificate to their FAC.? Defendant insists that the entire action must be dismissed because no certificate was attached to the Original Complaint at the commencement of the action.? Defendants assert that the defect is not curable by subsequent attachment of a certificate to the FAC.

 

Because Defendant has failed to cite any modern case law on point which expressly provides that the oversight is incurable by attachment to the FAC, the court overrules the demurrer.? The court finds that because ADR was allegedly offered and because injunctive relief is allegedly necessary, it was sufficient for Plaintiffs to attach the certificate to the FAC.

 

  1. No Alleged Breach of Duty under CC&R?s

 

OVERRULED on this ground.

 

Defendant argues that Plaintiffs have failed to properly allege any contractual duty under the CC&R?s that the HOA has breached.? The HOA maintains that under the CC&R?s it is not required to maintain or repair Plaintiffs? home, only the exclusive use common areas

 

In Opposition, Plaintiffs argue that they have alleged at paragraph 12 of the FAC that Article V, Section 2 of the CC&R?s provides such a duty as follows:

 

?Section 2.? Maintenance of Improvements on Lots.?

 

?In addition to maintenance upon the Common Area, the Association shall provide exterior maintenance upon each Lot which is subject to assessment hereunder, as follows: paint, repair, replace and care for roofs, gutters, down-spouts, exterior building surfaces, fences at the end of buildings, trees, shrubs, grass, walks, and other exterior improvements.?

 

?Such exterior maintenance shall not include glass surfaces.?

 

?Such exterior maintenance shall not include trees, shrubs, grass within the patio area on each Lot, or the fences between two adjacent Lots.?

 

For purposes of this demurrer, the court finds that the plain language of Article V, Section 2 is reasonably susceptible of the interpretation that the HOA may have a duty to repair an exterior wall damaged by a car accident.? Whether the phrase ?exterior building surfaces? does or does not include the damage done to Plaintiffs? unit is a mixed question of law and fact that it is not possible to resolve at the pleading stage on a demurrer.

 

It is possible that the HOA is correct that it is only required to conduct ordinary repairs and maintenance due to wear and tear and the effects of the elements.? However, it is also possible that the Plaintiffs may be correct that such repairs include repairs for damages due to accident.

 

The court finds that for purposes of this demurrer, Defendant has failed to meet its burden to prove as a matter of law, based solely on the facts alleged in the FAC, that the first cause of action fails to state a claim against the HOA for breach of the CC&R?s.

 

  1. No Allegation of Specific Damage Amount

 

SUSTAINED with leave to amend, on this ground.

 

Defendant argues correctly that the first cause of action fails to allege a specific dollar amount of the damages that Plaintiffs suffered, in violation of CCP 425.10 (a)(2), which provides that a Complaint seeking recovery of money or damages must state the amount demanded.

 

In Opposition, Plaintiffs cite cases decided in 1907, 1909, and 1927 for the proposition that they do not need to specify a precise damage amount.? However, some of those cases are over 100 years old and the relevant statute was only enacted in 1971 and has been amended as recently as 2006.? Plaintiffs? reliance on the cited cases is simply absurd.

 

As a practical matter, it is fairly common for plaintiffs to allege damages according to proof and not to allege a specific damage amount. ?However, if the defendant does not demur, then the pleading will stand, even if it does contain a technical defect.? A defendant can still determine the damages sought by propounding discovery.

 

Defendants must amend their pleading to state a specific damage amount, to the extent that they reasonably can.? If additional damages should arise, they may seek leave to amend their pleading to add those additional damage amounts.

 

This is an example of a defect which clearly could have been resolved by Plaintiffs? counsel, after meeting and conferring in good faith.

 

  1. No Causation

 

OVERRULED on this ground.

 

Defendant merely asserts that there is no causal connection between the alleged breach and the averred damages.? However, if the HOA did have a duty to repair the damage to Plaintiffs? unit under the CC&R?s, then clearly a breach of that duty could have caused Plaintiffs to suffer financial harm.

 

  1. 3rd COA: Injunctive Relief

 

SUSTAINED without leave to amend as to the 3rd cause of action, but with leave to amend as to the prayer for injunctive relief.

 

At page 7 of the FAC, in the prayer at item (3), Plaintiff seeks the following form of relief:

 

?For injunctive relief for the court to order the HOA and/or Pacific to pay for damages to the exterior walls and pipes inside the wall.?

 

Defendant argues correctly that injunctive relief is a remedy, not an independent cause of action.? (Guesseous v. Chrome Hearts LLC (2009) 179 Cal.App. 4th 1177, 1187; Roberts v. Los Angeles County Bar Ass?n (2003) 105 Cal.App. 4th 604, 618.)

 

Plaintiffs may amend their FAC to correctly plead injunctive relief as a remedy in the prayer.? But Plaintiff may not re-allege injunctive relief as their 3rd cause of action, because it is not a cause of action.

 

Defendant also argues correctly that the relief requested is not a genuine request for injunctive relief, because it is a request for money damages, not a request to compel the Defendant to perform or refrain from performing some act.? While this probably should have been raised as a motion to strike, the court will overlook that minor procedural defect.

 

Once again, this was a defect that could have been resolved easily and expeditiously through the meet and confer process.

 

  1. Motion to Strike

 

The motion to strike is GRANTED with leave to amend, for the reasons set forth in section (A)(3) above.