Case Name: San Jose Brickyard Homeowners Association v. Mary S. Lineen, et al.

Case No.: 1-15-CV-277049

Defendant Mary S. Lineen’s Demurrer to and Motion to Strike Portions of the Complaint of Plaintiff San Jose Brickyard Homeowners Association

This action arises from Defendant’s alleged breach of the Declaration of Covenants, Conditions, and Restrictions (“CC&Rs”) governing her ownership of property within the San Jose Brickyard Project by failing to pay maintenance assessments and associated fees and costs. (Complaint, ¶ 7.) Plaintiff seeks to recover these charges through this action for (1) breach of contract, (2) common counts, and (3) breach of covenant, which it filed on February 20, 2015.

Request for Judicial Notice

Defendant’s request for judicial notice of the CC&Rs, attached to Plaintiff’s complaint as Exhibit A, is GRANTED. (Evid. Code, § 452, subd. (d).)

Demurrer to the Complaint

Defendant demurs to the complaint on the ground that it fails to state a claim because each cause of action asserted therein is barred by the statue of limitations. (See Code Civ. Proc., § 430.10, subd. (e); Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42 [demurrer will lie where it appears clearly and affirmatively on the face of the complaint that a claim is barred by the statute of limitations].) Plaintiff concedes that portions of its claims are untimely but urges that none of them is entirely barred.

The parties appear to disagree concerning the applicable statutes of limitations. Plaintiff contends that the five-year statute for violations of restrictions affecting the use of real property applies to its entire complaint. (Code Civ. Proc., § 336, subd. (b).) Although Defendant inconsistently states elsewhere in her memorandum of points and authorities that the five-year statute applies to Plaintiff’s entire complaint (see Mem. of P. & A. at p. 9.), Defendant argues that the first cause of action for breach of contract and possibly the second cause of action for common counts are governed by the four-year statute governing claims for breach of an instrument in writing. (Code Civ. Proc., § 337; see Mem. of P. & A. at pp. 6-7, 11.)
It is unnecessary to resolve this issue, however, because Defendant contends that Plaintiff’s claims are barred even if the longer five-year statute applies. She relies on Plaintiff’s allegation that she breached the CC&Rs by failing to pay assessments and associated fees and costs from “October 2, 2009 through the present,” a range of time beginning more than five years before this action was filed. (Complaint, ¶ 7.) Defendant assumes that Plaintiff’s claims accrued on the earliest date in this range and consequently violate the statute of limitations. However, a demurrer based on a statute of limitations lies only where the bar appears clearly and affirmatively on the face of the complaint and not where the complaint merely shows that the action may be barred. (Committee For Green Foothills v. Santa Clara County Bd. of Supervisors, supra, 48 Cal.4th at p. 42.) Furthermore, a demurrer cannot be sustained as to a portion of a cause of action. (PH II, Inc. v. Super. Ct. (Ibershof) (1995) 33 Cal.App.4th 1680, 1682.) Plaintiff’s allegation suggests that Defendant breached the CC&Rs not only on October 2, 2009, but repeatedly through the present day, in which case portions of its claims accrued within the statutory period. (See Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1388 [where performance of contractual obligations is severed into intervals—as in installment contracts, leases with periodic rental payments, etc.—courts have applied a theory of continuous accrual, where a new breach occurs with each interval].) Thus, the complaint does not show clearly and affirmatively that any of Plaintiff’s claims is entirely barred by the statute of limitations.

Defendant’s demurrer is accordingly OVERRULED.

Motion to Strike the Second Cause of Action

Defendant contends that the entire second cause of action for common counts should be stricken because it is barred by the statute of limitations. This argument fails for the reasons already discussed.

Defendant’s motion to strike is thus DENIED.