1.Demurrer by Defendant Beachwalk HOA to Complaint and Companion Motion to Strike :

(a) Demurrers and motions to strike are disfavored, and the policy of the law is to construe the pleadings “liberally … with a view to substantial justice.” Code Civ. Proc. § 452.
Moreover, in ruling on a demurrer or motion to strike, the allegations in the complaint are considered in context and presumed to be true. [See Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255 (“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”).]
Finally, the grounds for a demurrer or motion to strike must appear on the face of the pleading under attack or from matter which the court may judicially notice (e.g., the court’s own files or records). Code Civ. Proc. § 437.

There is even substantial disagreement among the courts of appeal whether the sufficiency of a class action may properly be addressed at the pleading stage. Courts of appeal have found that “California’s judicial policy is to allow potential class action plaintiffs to have their action measured on its merits to determine whether trying their suits as a class action would bestow the requisite benefits upon the litigants and the judicial process to justify class action litigation.” Tarkington v. California Unemployment Ins. Appeals Board (2009) 172 Cal. App. 4th 1494, 1510 (internal quote marks omitted) (citing Beckstead v. Superior (1971) 21 Cal. App. 3d 780, 783, in turn citing La Sala v. American Sav. & Loan Assn. (1971) 5 Cal. 3d 864; Vasquez v. Superior Court (1971) 4 Cal. 3d 800; Jones v. H. F. Ahmanson & Co. (1969) 1 Cal. 3d 93; Daar v. Yellow Cab Co. (1967) 67 C2d 695).

Nonetheless, in In re BCBG Overtime Cases (2008) 163 Cal. App. 4th 1293, 1298-99, the court of appeal (4/3) affirmed the grant of an order striking class allegations where the motion to strike was treated as an evidentiary, rather than pleading, motion. And more recently, the court of appeal in Tucker v. Bell (2012) 208 Cal. App. 4th 201, 212-14 has questioned the validity of the Beckstead court’s conclusion. The Tucker court, too, however, recognizes that where there is a reasonable possibility the plaintiff can plead a prima facie community of interest among class members, the preferred course is to defer decision on the propriety of the class action until an evidentiary hearing has been held. Id. at 215 (citations and quote marks omitted, emphasis added).

For a class action, a plaintiff must show the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. Code Civ. Proc. § 382; Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1021. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representative with claims typical of the class; and (3) class representative who can adequately represent the class. Id. As a general rule, if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages. Tucker v. Bell, 208 Cal. App. 4th at 216 (citations omitted).

Here, the Association contends that the proposed class fails – that is, the class is too broad, Plaintiff is an inadequate representative, and Plaintiff’s claim is not typical – because the class encompasses owners who voted to approve removal of the pools while Plaintiff opposes removal of the pools. But whether the pools should be removed, or their removal approved, is not the gravamen of Plaintiff’s complaint. Rather, Plaintiff raises the issue whether the Association may properly remove the pools when less than 2/3 of the voting homeowners approval removal where the CC&Rs require 2/3 approval. Even a homeowner who voted to approve the removal may conceivably want the Association to act in accordance with the CC&Rs and its fiduciary duties.

The Association also asserts that the proposed class action complaint does not allow for recovery of class members’ damages beyond diminution in property value. This is not supported by the complaint, however, which generally pleads damages and prays for compensatory damages.

Accordingly, the Association’s demurrer to the class complaint and motion to strike class allegations are denied.

(b) General and Special Demurrers First and Second Causes of Action:

The Association has not presented any argument that, apart from the adequacy of the class action allegations, the first and second causes of action for breach of the CC&Rs and fiduciary duty fail to state such causes of action or are fatally uncertain. Accordingly, such contentions are deemed abandoned. Hendy v. Losse (1991) 54 Cal. App. 3d 723, 742.

(c) Demurrer for Other Action Pending:

In its memorandum of points and authorities in support of its demurrer, the Association argues that under Code Civ. Proc. § 430.10(c) this action may be stayed because there is another action pending, which action involves related parties and is based on the same subject matter. [The Association did not actually demur on this ground. See Demurrer.]

In any event, the parties are not actually the same – though of course Paul Wittenberg, one of the plaintiffs in the related action, and Muriel Wittenberg are married. There is no identity between Muriel Wittenberg and the other plaintiffs in the related action. Moreover, the related action seeks damages for breach of fiduciary duty only, and only on behalf of the three plaintiffs in that action.

On the other hand, the subject matter is the same so that a ruling for plaintiffs in the related action could narrow the liability issues in this case.

Class and damages issues would remain, however.
Given that trial in the related action is set for 9/22/14, there does not appear to be any reason to delay the current action. While the related action proceeds to trial, discovery in this action can proceed and will most likely focus on class and damages issued, which will not be made redundant or duplicative by the results of the trial in the related action. Accordingly, the request to stay this action pending trial of the related action is denied for now.

Responding Party shall give Notice.

2. Motion by Defendant Beachwalk HOA to Strike:

Se above analyzed in conjunction with the demurrer. The motion to strike is denied.

Responding Party shall give Notice.

3. Motion by Defendant Beachwalk to Disqualify Attorney of Record:

The motion is denied.

The Association’s motion to disqualify Plaintiff’s counsel as counsel for the putative class is denied. Plaintiff’s evidentiary objections to paragraphs 6, 7, 10, 12, 28, and 29 of the declaration of Steven Murray are sustained; the remaining objections are overruled.

A court has inherent power “to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every manner pertaining thereto.” Code Civ. Proc. § 128(a)(5). This includes the power to disqualify counsel in appropriate cases. [ See In re Complex Asbestos Litig. (1991) 232 Cal. App. 3d 572, 575.]

“A complaining party who files a motion to disqualify is required to have standing.” Dino v. Pelayo (2006) 145 Cal. App. 4th 347, 352. Generally speaking, such standing is shown by establishing an attorney client relationship, or some other confidential relationship, with the attorney in question. [See Blue Water Sunset, LLC v. Markowitz (2011) 192 Cal. App. 4th 477, 485.]

California Rule of Professional Conduct 3-310(c) provides, in pertinent part:

A member shall not, without the informed written consent of each client:

(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or

(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict…

“A per se or automatic disqualification rule applies when counsel’s representation of one client is adverse to the interests of another current client.” Responsible Citizens v. Superior Court (1993) 16 Cal. App. 4th 1717, 1724 (emphasis in original).

Where counsel represents a plaintiff and putative class action, his client is the named plaintiff. Los Angeles Bar Ass’n Form. Opn. 481 and n. 2 (1995); Rest. 3d Law Governing Lawyers § 14, Comment “f”; Rutter, Prof. Res., § 3:131.20. Once the class is certified, class counsel represents all class members, including unnamed members. [See Martorana v. Marlin & Saltzman (2009) 175 Cal. App. 4th 685, 693; Rutter, Prof. Res., § 3:131.20. ]

Here, the Association really does not have standing to bring a motion to disqualify Plaintiff’s counsel for a conflict of interest between plaintiffs. (i) First and most simply, since no class has yet been certified, Plaintiff is currently counsel’s only client, so no question of conflict with others’ interests arises.
(ii) Second, for reasons discussed more fully above, different homeowners’ different views on whether the pools should be removed does not create a conflict within the terms of this action. This action concerns whether the Association can only properly act to remove pools with the approval of 2/3 of the voting homeowners (after a quorum, etc.) or whether it could properly act – as it apparently contends – with less. One’s position on this issue does not turn on whether one believes the pools in fact ought to be removed. If the HOA violated the CC&Rs and thus the rights of each homeowner was impacted or harmed by not following procedures, then, at least conceptually, each homeowner regardless of how they voted on the pools would be harmed by the violation of the procedures set forth in the CC&Rs.

Responding Party shall give Notice.