Rancho Ynecita Owners Association v. James H. Nicholas, et al
Case No: 16CV01868 (Lead
Hearing Date: Tue Mar 27, 2018 8:30

Nature of Proceedings: Motion for Judgment on the pleadings and Motion to Dissolve Preliminary Injunction

Request for Judicial Notice

Defendants, James H. Nicholas and Yvonne Nicholas’ – individually and as co-trustees of the Nicholas Family Trust – request for judicial notice of the fifth amendment to the Covenants, Conditions, and Restrictions contract (“CC&R contract”) is granted. Judges may take judicial notice of a deed and its recording, where its existence and authenticity cannot reasonably be the subject of dispute. (Lockahart v. VM, Inc. (2009) 175 Cal.App.4th 1452, 1460-61; Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549; Cal-American Income Property Fund II v. County of L.A. (1989) 208 Cal.App.3d 109, 112 n. 2 (court took judicial notice of deed recordation, where there was no question of authenticity, and the parties had referenced the deeds in the context of foreclosure proceedings).

The Motion for Judgment on the Pleadings

As an initial matter, Plaintiff, Rancho Ynecita Owners Association’s objection to the Motion for Judgment on the Pleadings is overruled. Plaintiff contends the motion is procedurally improper, because Defendants filed the motion before they filed their Answer and “set” the pleadings. (Citing CCP, § 438, subd. (f)(2).) The Court notes there is merit to Plaintiff’s objection that this motion is procedurally defective, especially because Defendants only cite Code of Civil Procedure section 438 as authority to bring this motion, which places more rigid procedural boundaries on the time when a motion for judgment on the pleadings can be brought, as opposed to the far less rigid non-statutory motion for judgment on the pleadings that caselaw authorizes a Court to hear at “any time” prior to trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650 [“A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.”] [emphasis added].)

Although the rules governing statutory motions for judgment on the pleadings prohibit this motion under the current circumstances (where a demurrer has already been ruled upon and no new law exists) (CCP, §438, subd. (f)(2), the Court knows of no authority prohibiting a non-statutory motion were a vital new fact is present in the pleadings that could affect the outcome of the case on the merits. A comment in a highly regarded and widely referenced practice guide comes to the same conclusion:

Case authority for the nonstatutory motion is rather thin. None of the cited cases expressly deal with this issue; they simply assume its existence. But these cases reach a practical result. A court should be able to decide there is no valid cause of action at any time. There is no point in forcing a case to go to trial because the motion was made too late or otherwise failed CCP § 438 requirements.

(Weil and Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2017) ¶ 7:277[emphasis added].)

The Court invited this motion to resolve an issue raised by the parties in the Demurrer to the Second Amended Complaint, that was not sufficiently addressed. Specifically, Defendants claimed a fifth amendment to the CC&R contract enacted during these proceedings may resolve the only remaining cause of action for public nuisance pursuant to Civil Code section 3479. The parties discussed the fifth amendment in the supporting papers to the Demurrer to the SAC, but did not submit that amendment into evidence. The issue raised by the fifth amendment was whether Plaintiff could be held to have impliedly acquiesced to the activities it alleges to create a nuisance, by allowing an amendment to permit various rental activities that would obviously cause an increase in the various “nuisance” activities complained of. The Court will therefore address the merits of Defendants’ motion, and does so on non-statutory grounds. (Stoops v. Abbassi, supra, 100 Cal.App.4th at p. 650.)

A motion for judgment on the pleadings, like a demurrer, tests the sufficiency of the pleadings. (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061 [“The grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.”].) In considering a motion for judgment on the pleadings, courts consider whether the factual allegations, assumed true, are sufficient to constitute a cause of action. (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452-453.)

The Court has reviewed the fifth amendment to the CC&R contract and finds the amendment does not negate Plaintiff’s statutory nuisance claim as pleaded, because that amendment expressly forbids short term rentals of 30 days or less, thus would not necessarily constitute the homeowners’ concession to an “increase in traffic, noise, strangers in the neighborhood, utilization of private roads and all other attendant activities which created undue traffic, disturbance of fellow property owners, and the use of the subject property by more than one family.” (SAC, ¶ 40.)

The fifth amendment to the CC&R contract also does not constitute a concession by the homeowners to the harassing actions the Defendants are alleged to have committed against various persons within the association that allegedly threatened business relationships and services to the members of the association. (SAC, ¶ 45.)

Accordingly, the Court finds the fifth amendment does not create a factually pleaded circumstance that requires the Court to reverse its previous ruling that Plaintiff stated sufficient facts to constitute a cause of action for nuisance pursuant to Civil Code section 3479.

Therefore, Defendants’ Motion for Judgment on the Pleadings is denied.

The Motion to Dissolve the Preliminary Injunction

Motions to dissolve or modify an injunction are governed by Code of Civil Procedure section 533:

In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.

In this case, the Court finds there has been no material change in facts. As stated above, the Court does not find the fifth amendment to the CC&R contract constitutes the homeowners’ concession to the various alleged acts that could be found at trial to constitute a nuisance.

The Court also finds no change in law. Plaintiff concedes this fact by failing to point to any change in law in the moving papers.

The Court lastly finds the ends of justice would not be served by dissolution or modification of the injunction. The only possible evidence submitted by Defendants that the Court could rely upon was a “spreadsheet” that contains monthly damages Defendants allegedly sustained as a result of the injunction. This “evidence” is speculative, does not support dissolution of the injunction, and is insufficient to support the request to increase bond, because Defendants failed to include or point to any evidence they rented the subject property for the amounts claimed, or could rent for those amounts.

Accordingly, the motion to dissolve the injunction is denied.

Pursuant to California Rules of Court, 3.1308 (a)(1) and Santa Barbara County Superior Court Local Rule 1301(b), the court does not require a hearing; oral argument will be permitted only if a party notifies all other parties and the court by 4:00 p.m. (Department 2) the day before the hearing of the party’s intention to appear. This tentative ruling will become the ruling of the court if notice of intent to appear has not been given. If no hearing is held, Plaintiff is directed to provide a proposed order for signature commensurate with this tentative, with appropriate notice to Defendant pursuant to California Rules of Court rule 3.1312, which will then be entered by the court.