Case Number: VC064087    Hearing Date: August 19, 2014    Dept: SEC

BAUTISTA v. BENTON BAY HOMEOWNERS ASSOC.
CASE NO.: VC064087
HEARING: 08/19/14

#10
TENTATIVE ORDER

Defendant BENTON BAY HOMEOWNERS ASSOCIATION’s demurrer to the First Amended Complaint is OVERRULED as to the 1st cause of action; and SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the 2nd and 3rd causes of action. C.C.P. § 430.10(e).

The demurrer brought on behalf of the individual defendants (PEGY SHAW, LAURA BLACK, DEBRA GULETTE, HACQUELINE JONES, ROASE MARIE NEDORF and PATRICIA MOLINA) is SUSTAINED WITHOUT LEAVE TO AMEND. C.C.P. § 430.10(d).

The motion to strike the claim for punitive damages is GRANTED WITH LEAVE TO AMEND. C.C.P. §§ 435, 436.

Plaintiff ANA BAUTISTA, acting in pro per, alleges causes of action for quiet title, fraud and breach of fiduciary duty against her Homeowner’s Association defendant BENTON BAY, the property manager Peggy Shaw and individual members of Benton Bay’s Board of Directors. The claims arose after plaintiff attempted to submit past due payments to defendant Benton, which recorded a lien on the property.

As alleged, on May 6, 2014, plaintiff sent a check to defendant Shaw for $2,325 which represented the past due amount. FAC, ¶15. The check was not cashed but, according to defendant Shaw, instead forwarded to third party SBS Lien Services. ¶16. On May 28, plaintiff sent a wire transfer in the same amount to Shaw. ¶19. That same day, Shaw instructed SBS to place a lien on the property. ¶22. Plaintiff alleges that she did so without first obtaining approval from the Board of Directors, in violation of Civil Code section 5673. ¶¶23, 27.

Plaintiff also contends she was not given an itemized statement of the charges owed. ¶24. She alleges she granted power of attorney to her husband who requested minutes of the Board meetings and was denied. ¶¶29, 30.

On June 4, Shaw returned the wire transfer funds and on June 5, Benton Bay recorded a lien. ¶¶25, 26.

Plaintiff alleges she was damaged in the amount of $3,162.52 and seeks punitive damages in the amount of $1 million. FAC, ¶¶34, 35; Prayer, ¶¶1, 2.

Defendants argue that the quiet title cause of action does not set forth the adverse claim to title against which a determination is sought. C.C.P. § 761.020(a). Plaintiff alleges a lien was recorded on the property, which is a cloud on her title and a “claim” as defined in section 760.010(a). The demurrer is overruled on that ground.

In support of the fraud cause of action, plaintiff alleges that defendant Shaw misrepresented that she was not allowed to accept payment from plaintiff. FAC, ¶17. She allegedly did so for the purpose of plaintiff incurring additional fees and costs and thereby meeting the minimum statutory amount owed for which a lien can be recorded. ¶¶18, 21. The fraud cause of action is also based on the allegedly wrongful recordation of the lien, failure to obtain a vote by the Board and failure to give plaintiff’s husband a copy of the corporate minutes.

It is not clear that the alleged wrongdoing constitutes fraud. Plaintiff has not alleged (1) a misrepresentation, (2) defendant’s knowledge of the falsity, (3) intent to deceive, (4) plaintiff’s reasonable reliance and (5) damages caused by the alleged fraud. See Stansfield v. Starkey (1990) 220 Cal.App.3d 59. Specific facts supportive of each element must be pled against each defendant. Goldrich v. Natural Y. Surgical Specialties, Inc. (1984) 25 Cal.App.4th 772. Plaintiff has not satisfied that pleading standard, and the proposed SAC does not cure the defects. In particular, plaintiff has not alleged detrimental reliance. Additionally, she has failed to allege facts supporting liability against defendant Shaw who appears to have been acting solely as defendant Benton’s agent and not in her individual capacity. Leave to amend is granted.

Plaintiff does not allege facts supporting the existence of a fiduciary duty or its breach. See e.g. City of Atascasdero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445. While there is a fiduciary relationship between a homeowner’s association and its members in some respects, plaintiff has not pled facts supporting the particular breach of a fiduciary duty. See Ostayan v. Nordhoff Townhomes Homeowners Ass’n, Inc. (2003) 110 Cal.App.4th 120. Leave to amend is granted.

Individual defendants
In order to state a cause of action against the individual member of the Board, who were allegedly acting within that capacity, a plaintiff must obtain a court order prior to filing the complaint. C.C.P. § 425.15(a). Plaintiff submitted a proposed Second Amended Complaint omitting those individuals as defendants.
The demurrer is sustained without leave to amend as to the individuals.

Motion to strike
Because the cause of action for fraud is not sufficiently pled, there is no alleged basis for a punitive damages award. Additionally, it is improper to specify an amount in the pleading. See C.C. § 3295(e). The Court will allow plaintiff an opportunity to amend the pleading to allege specific facts of oppression, fraud or malice to support her claim for punitive damages.