2011-00109950-CU-CD

Erica Smith vs. Amara Attached Homes, L.P.

Nature of Proceeding: Hearing on Demurrer

Filed By: Schmidt, Parris H.

Defendant Amara Attached Homes, L.P.’s Demurrer to Plaintiffs’ Third Amended
Complaint is OVERRULED.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the
Sacramento Superior Court are available on the Court’s website at
Counsel for moving party is
ordered to notify opposing party immediately of the tentative ruling system and to be
available at the hearing, in person or by telephone, in the event opposing party
appears without following the procedures set forth in Local Rule 1.06(B).

Defendants’ Request for Judicial Notice is DENIED. A court can properly take judicial
notice of the existence of a document, but can take judicial notice only of the truth of
the contents of documents such as a court’s findings of fact, conclusions of law,
orders, and judgments. It is immaterial that if the extrinsic matter is true it would defeat
the cause of action, because a demurrer is not concerned with a party’s ability to prove
the allegations of the pleading. In ruling on a demurrer, it is error to take judicial notice
of the terms of an ordinary document submitted in support or interpret the terms; “a
court cannot by means of judicial notice convert a demurrer into an incomplete
evidentiary hearing in which the demurring party can present documentary evidence
and the opposing party is bound by what that evidence appears to show.” (Fremont
Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115.)

Plaintiffs’ Third Amended Complaint (“TAC”) sets forth a single cause of action for
Violation of Civil Code § 896 et seq. in this construction defect action. Plaintiffs are
individual condominium owners in a planned unit development, located at 1600
Danbrook Drive, Sacramento.

Plaintiffs have alleged construction defects against multiple defendants, including
moving party defendant Amara Attached Homes, L.P. (“Amara”). The TAC attaches as
Exhibit A, a selected portion of the CC&Rs for these condominiums. The TAC also
attaches as Exhibit D, a copy of the Settlement Agreement from August 2010 between
the Amara entities and the plaintiffs’ Home Owners Association (“HOA”) which
expressly settled all claims regarding common areas between the HOA and Amara.

Amara demurs on the grounds that the TAC fails to state facts sufficient to constitute a
cause of action, as the defective areas described in the TAC are common areas, and
all claims as to common areas have been settled, and that plaintiffs have no standing
to bring a suit for defects in the common areas. A prior demurrer to the SAC was
sustained, with leave to amend on this ground.

The rule is well settled that a complaint otherwise good on its face is nevertheless
subject to demurrer when facts judicially noticed render it defective. The theory is that
the pleader should not be allowed to bypass a demurrer by suppressing facts which
the court will judicially notice. Marina Tenants Assn. v. Deauville Marina Development
Co. (1986) 181 Cal. App. 3d 122, 130.

Defendant contends, relying on extrinsic evidence, that the defects complained of by
plaintiffs are at least partially to the common areas, as to which plaintiffs have no
standing to sue, based on the prior Settlement Agreement. As the Court has declined
to consider the full CC&Rs, which include the relevant definitions, the demurrer may
not rely on the extrinsic evidence, which reflects that the claims of defects to exterior
doors, windows and their systems, foundation systems and slabs, hot water lines
below the foundation are to common area building components. (TAC, para. 17). The
Court must accept as true the allegations of the complaint.

Defendants shall file and serve their Answer to the Third Complaint not later than
Monday, June 23, 2014.