Case Name: Mount Vernon Court Homeowners Association v. Dorothy Davis
Case No.: 2014-1-CV-267897

Motion for Judgment on the Pleadings by Defendant Dorothy Davis

Factual and Procedural Background

This is a breach of contract action involving a settlement agreement. Plaintiff Mount Vernon Court Homeowners Association (“Plaintiff”) is an owner’s association formed for the purpose of managing a common interest development located at 1930 Mount Vernon Court in Mountain View, California. (See Complaint at ¶ 1.) Defendant Dorothy Davis (“Davis”) is an individual residing in the Mount Vernon Court Condominiums. (Id. at ¶ 2.) On October 29, 2007, Plaintiff and Davis entered into a Settlement Agreement following mediation through the County of Santa Clara Dispute Resolution & Ombuds Program. (Id. at ¶ 11.) From March 2012 through October 2013, Plaintiff incurred $23,284.80 in storage fees with Montgomery Sansome, LP associated with the repair and remediation of Davis’ home. (Id. at ¶ 12.) Pursuant to the Settlement Agreement, Davis owed Plaintiff the storage fees. (Id. at ¶ 13.) Since November 20, 2013, Davis has breached and continues to breach the Settlement Agreement by failing to pay the storage fees. (Id. at ¶ 15.)

On July 11, 2014, Plaintiff filed a verified Complaint setting forth causes of action for (1) Breach of Written Settlement Agreement and (2) Common Counts for Money Paid, Laid Out and Expended.

On March 20, 2015, Davis filed a verified Answer alleging various affirmative defenses to the Complaint.

Currently before the Court is Davis’ motion for judgment on the pleadings to the Complaint on the ground that it fails to state a cause of action. (Code Civ. Proc., § 438.) Plaintiff has filed written opposition and submitted a request for judicial notice. Davis has filed reply papers. No trial date has been set.

Motion for Judgment on the Pleadings

Request for Judicial Notice

In opposition, Plaintiff seeks judicial notice of a Declaration by defendant Davis in support of her Motion to Vacate Default (Exhibit A). While the Court is free to take judicial notice of the existence of a document in a court file, the Court may not take judicial notice of the truth of hearsay statements in decisions and court files. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) Thus, the request for judicial notice is GRANTED only as to the existence and contents of the document, not the truth of the matters asserted therein.
Legal Standard

“Judgment on the pleadings is akin to a demurrer and is properly granted only if the complaint does not state facts sufficient to state a cause of action against that defendant. The grounds for the motion must appear on the face of the complaint, and in any matters subject to judicial notice. The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254 [internal citations omitted].)

First Cause of Action: Breach of Contract

With respect to the first cause of action [breach of contract], Davis argues that Plaintiff fails to allege facts demonstrating that she breached the Settlement Agreement. In particular, Davis contends that there is no breach as nothing in the Settlement Agreement requires her to pay storage fees.

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) “[W]hen a written instrument is attached to the pleading and properly incorporated therein by reference, the court may examine the exhibit and treat the pleader’s allegations of its legal effect as surplusage.” (Lumbermens Mut. Cas. Co. v. Vaughn (1988) 199 Cal.App.3d 171, 178.) Similarly, “[i]f facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel Int’l, Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Here, the Complaint alleges that Davis, pursuant to the Settlement Agreement, owed storage fees to the Plaintiff. (See Complaint at ¶ 13.) Plaintiff claims that Davis breached the Settlement Agreement by refusing to pay the storage fees. (Id. at ¶ 15.) Despite these allegations, there is nothing in the Settlement Agreement itself which requires Davis to pay storage fees. The Court finds that the parties’ written agreement controls over inconsistent allegations in the Complaint. In opposition, Plaintiff argues that Davis’ obligation to pay storage fees is an implied term of the Settlement Agreement. However, as the reply points out, there are no facts alleged in the Complaint to suggest any implied term which requires Davis to pay storage fees. Furthermore, “[i]mplied terms are not favored in the law, and should be read into contracts only upon grounds of obvious necessity.” (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1222.) Therefore, Plaintiff fails to allege facts to support its breach of contract claim.

Accordingly, the motion for judgment on the pleadings to the first cause of action is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim.

Second Cause of Action: Common Counts

“A common count is not a specific cause of action, however; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. [Citations.] When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable. [Citations.]” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394-395.) Thus, Plaintiff’s common count must stand or fall with the first cause of action. Since Plaintiff fails to state a claim for breach of contract, the common count also fails for the same reasons.

Accordingly, the motion for judgment on the pleadings to the second cause of action is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim.