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18-CIV-06856 ANA ALVAREZ VS. OCEAN POINT TOWNHOUSE ASSOCIATION, ET AL.

ANA ALVAREZ OCEAN POINT TOWNHOUSE ASSOCIATION
PRO/PER

DEFENDANT OCEAN POINT TOWNHOUSE ASSOCIATION’S DEMURRER TO PLAINTIFF ANA ALVAREZ’S 3-12-19 FIRST AMENDED COMPLAINT TENTATIVE RULING:

Defendant Ocean Point Townhouse Association’s Demurrer to Plaintiff Ana Alvarez’s 3-12-19 First Amended Complaint (FAC) is ruled upon as set forth below.

The Demurrer to the First Cause of Action for breach of contract is SUSTAINED WITH LEAVE TO AMEND. As noted in the moving papers, the FAC does not allege that Plaintiff performed under the contract or was excused from performance. Further, where an action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. Otworth v. S. Pac. Transportation Co., 166 Cal.App.3d 452, 459 (1985). Plaintiff alleges breach of the CCRs (¶43), but has not attached the contract, nor set out the terms verbatim.

The Demurrer to the Second Cause of Action for breach of the implied covenant of good faith and fair dealing is SUSTAINED WITH LEAVE TO AMEND. This claim does nothing more than allege Defendants breached certain provisions of the CCRs. Simply alleging contract breach is not an allegation of breaching the implied covenant, which imposes upon each contracting party the duty to refrain from doing anything which would render performance of the contract impossible by any act of his own, and to do everything that the contract presupposes he will do to accomplish its purpose. Harm v. Frasher (1960) 181 Cal.App.2d 405. An action alleging a breach of the implied covenant cannot be used to extend existing, or create new, obligations. A plaintiff raising this claim must allege a reasonable relationship between the defendant’s allegedly wrongful conduct and the express terms or underlying purposes of the contract. Jenkins v. JPMorgan Chase Bank (2013) 216 C.A.4th 497, 527. Accordingly, a claim for breach of the implied covenant is not properly plead.

The Demurrer to the Third Cause of Action for an accounting is OVERRULED. A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting. An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation. However, a fiduciary relationship between the parties is not required. All that is required is that some relationship exists that requires an accounting. Kritzer v. Lancaster (1950) 96 Cal.App.2d 1, 7; Teselle v. McLoughlin, 173 CA4th 156, 179 (2009). The FAC alleges Defendant pocketed Plaintiff’s HOA fees instead of using them for maintaining the common areas. Assuming this allegation has merit, it could be difficult to calculate the amount of HOA fees Plaintiff paid that should be returned to her. Thus, an accounting claim appears to be properly stated.

The Demurrer to the Fourth, Tenth, and Fifteenth Causes of Action for intentional misrepresentation, negligent misrepresentation, and constructive fraud, is SUSTAINED WITH LEAVE TO AMEND. As noted by Ocean Point, these claims appear to allege a false representation(s) by some Defendant, but without identifying the specific Defendant. That is, the alleged facts are not specific as to each Defendant. Instead, Plaintiff groups all Defendants together, leaving each Defendant guessing as to which allegation(s) pertain to it. Further, when fraud is alleged against a corporation, Plaintiff is required to plead with specificity, meaning identifying the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. Tarmann v. State Farm Mutual Automobile Ins. (1991) 2 Cal.App.4th 153, 157.

The Demurrer to the Sixth Cause of Action for violation of Civ. Code § 3294 is SUSTAINED WITHOUT LEAVE TO AMEND. Civ. Code § 3294 provides the statutory basis for seeking punitive damages; it is not itself a cause of action.

The Demurrer to the Fifth, Seventh, and Eighth Causes of Action for violation of Civ. Code §§ 2924.12 and 2924.17(a) and (b), and 2923.5, and “Homeowner’s Bill of Rights,” is SUSTAINED WITH LEAVE TO AMEND. As with the other asserted claims, these three causes of action lump Defendants together without specifying which Defendant performed the alleged act(s). For example, Plaintiff alleges all the Defendants filed a Notice of Default without first contacting Plaintiff to discuss her financial situation. The allegations must be clear with respect to each Defendant. Further, per Code Civ. Proc. § 2924.15, certain of the asserted HBOR statutory claims require an allegation that the Property was owner-occupied as the borrower’s principal residence, which here is missing. For at least these reasons, the Demurrer is sustained as to the statutory HBOR claims.

The Demurrer to the Eleventh Cause of Action for slander of title is SUSTAINED WITH LEAVE TO AMEND for the reasons state in Defendant’s Demurrer. The alleged publication(s) was privileged under Civ. Code § 47(b) unless done with malice, which as stated above, has not been properly alleged. Further, this cause of action once again lumps Defendants together without specifying which acts were performed by which Defendants.

The Demurrer to the Twelfth Cause of Action for quiet title is SUSTAINED WITH LEAVE TO AMEND for the reasons stated in the moving papers, including Plaintiff’s failure to verify the Complaint, to allege a legal description of the property, and to allege adversity in title.

The Demurrer to the Fourteenth Cause of Action for declaratory relief is SUSTAINED WITH LEAVE TO AMEND. This cause of action once again lumps Defendants together without specifying which acts were performed by which Defendants. Plaintiff seeks a judicial declaration of the parties’ rights as to the Note and Deed of Trust, without clarifying how such a declaration involves the HOA.

The Demurrer to the Ninth Cause of Action for cancellation of instruments is SUSTAINED WITH LEAVE TO AMEND on grounds this cause of action again lumps all Defendants together without specifying the basis for asserting this cause of action against the HOA. Plaintiff seeks to cancel the Substitution of Trustee, the Notice of Default, and the Notice of Trustee’s Sale without explaining the basis for asserting this claim against the HOA.

The Demurrer to the Sixteenth Cause of Action for injunctive relief is SUSTAINED WITH LEAVE TO AMEND. Injunctive relief is a remedy and not, in itself, a cause of action. Injunctive relief may be sought, but as a remedy for some other viable cause of action.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, DEMURRING PARTY is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Susan L. Greenberg, Department 3.

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ANA ALVAREZ OCEAN POINT TOWNHOUSE ASSOCIATION
PRO/PER

DEFENDANT OCEAN POINT TOWNHOUSE ASSOCIATION’S MOTION TO STRIKE PORTIONS OF PLAINTIFF ANA ALVAREZ’S 3-12-19 FIRST AMENDED COMPLAINT TENTATIVE RULING:

Defendant Ocean Point Townhouse Association’s Motion to Strike portions of Plaintiff Ana Alvarez’s 3-12-19 First Amended Complaint (FAC) is GRANTED-IN-PART and DENIED-INPART, as set forth below.

The motion to strike all references to punitive/exemplary damages is GRANTED WITH LEAVE TO AMEND. The FAC’s allegations of “malice,” “fraud,” and “oppression” are conclusory and unsupported by specific factual allegations. Further, the facts that are alleged are not specific as to each Defendant. Instead, Plaintiff groups all Defendants together, leaving each specific Defendant guessing as to which allegation(s) pertain to it. As to each Defendant, the Complaint must plead specific facts demonstrating why that particular Defendant is guilty of malice, fraud, or oppression under Civ. Code § 3294.

The motion to strike the request for attorney’s fees is GRANTED. Attorney’s fees must be authorized by contract, statute, or law. Code Civ. Proc. §§ 1021; 1033.5(a)(10). The FAC here includes no allegations supporting the request for attorney’s fees. Further, Plaintiff represents herself, and thus cannot recover attorney’s fees for time spent in litigation.

The motion to strike the Sixth Cause of Action is DENIED AS MOOT because Defendant’s Demurrer to this claim has been sustained without leave to amend. Civ. Code § 3294 is a basis for seeking punitive damages; it is not a free-standing cause of action.

The motion to strike the request for monetary damages and attorney’s fees in the Fifth, Seventh, and Eighth Causes of Action’s (the HBOR claims) is GRANTED. Plaintiff cannot recover monetary damages under the HBOR until after a trustee’s deed upon sale has been recorded or after a borrower has obtained injunctive relief. See Civil Code §§ 2924.12. Plaintiff has not plead sufficient facts to show that either condition to recovery has been satisfied, and it appears neither has occurred. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Susan L. Greenberg, Department 3.