Jane Doe v. Margaret Cafarelli, et al.
Case No: 18CV04974
Hearing Date: Tue Jun 18, 2019 9:30

Nature of Proceedings: Demurrer Second Amended Complaint; Demurrer to Plaintiff’s Second Amended Verified Complaint; Motion Quash Deposition Subpoena; Motion Strike Second Amended Complaint; Motion Strike Portions of Plaintiff’s Second Amended Complaint

(1) Motion of Alma Del Pueblo Owners Association to Quash Subpoena to Pacific Western Bank

(2) Demurrer of Defendants Santa Barbara Public Market, LLC, and Victoria Street Partners, LLC to Second Amended Complaint

(3) Motion of Defendants Santa Barbara Public Market, LLC, and Victoria Street Partners, LLC to Strike Portions of Second Amended Complaint

(4) Demurrer of Defendants Samuel Hedgpeth and Sonia Rosenblum to Second Amended Complaint

(5) Motion of Defendants Samuel Hedgpeth and Sonia Rosenblum to Strike Portions of Second Amended Complaint

ATTORNEYS:

For Plaintiff Jane Doe: James F. Scafide, Tyler J. Sprague, Scafide Law Firm, PC

For Defendants Santa Barbara Public Market, LLC, and Victoria Street Partners, LLC: Thomas P. Gmelich, Lena J. Marderosian, Dawn Cushman, Bradley & Gmelich LLP

For Defendants Alma Del Pueblo Owners Association and The Management Association Inc. dba The Management Trust: Jeff Hsu, Patrick A. Gillispie, Murphy, Pearson, Bradley & Feeney

For Defendants Samuel Hedgpeth and Sonia Rosenbaum: Michele L. Gamble, Rebecca J. Chmura, Collins Collins Muir + Stewart LLP

(For other appearances see list)

RULINGS:

(1) For the reasons set forth herein, the hearing on the motion of Alma del Pueblo Owners Association to quash plaintiff’s subpoena to Pacific Western Bank is continued to July 16, 2019, at 9:30 a.m.

(2) For the reasons set forth herein, the general and special demurrers of defendants Santa Barbara Public Market, LLC, and Victoria Street Partners, LLC, are sustained, with leave to amend, as to the fifth through twelfth and twenty-first through twenty-third causes of action of plaintiff’s second amended complaint, and are overruled as to the thirteenth cause of action.

(3) For the reasons set forth herein, the motion of defendants Santa Barbara Public Market, LLC, and Victoria Street Partners, LLC, to strike portions of plaintiff’s second amended complaint is granted to strike as to these moving parties, with leave to amend, paragraphs g, h, and i, of the prayer, and is in all other respects denied.

(4) For the reasons set forth herein, the demurrer of defendants Samuel Hedgpeth and Sonia Rosenbaum is sustained, with leave to amend, as to the fourth, sixth through twelfth, fourteenth through seventeenth, and twenty-first through twenty-third causes of action and is overruled as to all other causes of action.

(5) For the reasons set forth herein, the motion of defendants Samuel Hedgpeth and Sonia Rosenbaum to strike portions of the second amended complaint is granted as to these moving parties, with leave to amend, to strike: (i) paragraphs c, e, and g of the prayer of the SAC; (ii) prayer paragraph c on page 39; (iii) prayer paragraph 2 on page 40; and, (iv) the words “punitive damages” on page 6, line 8. In all other respects, the motion to strike is denied.

(6) Plaintiff Jane Doe shall file and serve her third amended complaint on or before July 18, 2019.

Background:

(1) Allegations of Second Amended Complaint

Plaintiff Jane Doe (suing here under a pseudonym) is the owner of a residential unit in the condominium project known as Alma del Pueblo (AP) and is a member of defendant Alma del Pueblo Owners Association (APOA.) (Second Amended Complaint [SAC], ¶ 1.) AP comprises 40 condominium units, consisting of 37 residential units (of which five are designated as “affordable” units, sold at below-market rates) and three commercial units. (SAC, ¶ 16.) The AP and the APOA are governed by a Declaration of Covenants, Conditions and Restrictions (CC&Rs). (SAC, ¶ 6 & exhibit A.)

Defendant Margaret Cafarelli owns or controls defendants Urban Developments, LLC (UD LLC), Victoria Street Partners, LLC (VSP), and Santa Barbara Public Market, LLC (SBPM). (SAC, ¶ 12.) The SAC refers to UD LLC, VSP, and SBPM collectively as the “Cafarelli Entities.” (Ibid.)

Cafarelli, individually or through one of the Cafarelli Entities, as the developer of AP began selling units in 2014. (SAC, ¶ 17.) Doe was given the opportunity to purchase an affordable unit and met with an agent for Cafarelli and the Cafarelli Entities in October 2014. (SAC, ¶¶ 16-17.) As part of the purchase, Doe received a seller’s disclosure which identified that the building includes facilities reserved for the use of the residential units and that the Board of Directors of the APOA (Board) would adopt rules regulating access to and use of these facilities. (SAC, ¶¶ 18-19 & exhibit C.) Based upon her inspection of AP and the disclosure, Doe believed that she would have full access to these facilities and Doe was not informed that she would not have full access. (SAC, ¶¶ 20-21.)

All residential unit owners at AP pay the same homeowners association fee (HOA fees) rates, with no discount for affordable units. (SAC, ¶ 22.) The HOA fee rates consist of a flat rate paid equally by all members and a pro-rata rate that is based on the square footage of each unit. (SAC, ¶¶ 23-24.)

On September 7, 2012, Cafarelli, as the developer and initial incorporator, appointed herself and two others to serve on the Board. (SAC, ¶ 25.) Prior to the initial meeting of the Board, Cafarelli entered into a Management Agreement between APOA and UD LLC. (SAC, ¶ 27.) The management agreement was never approved by the Board or the members of APOA. (Ibid.) Under the management agreement, Cafarelli received $2,500 monthly. (SAC, ¶ 28.) Cafarelli hired a concierge, who was paid by APOA, to facilitate day-to-day operations of the facility. (Ibid.)

In late December 2017, Doe received an email from Cafarelli stating that, beginning on January 1, 2018, defendant The Management Association, Inc., dba The Management Trust (Management Trust) would take over as manager of APOA. (SAC, ¶¶ 13, 33.) According to Cafarelli, this action was approved by the Board in executive session on December 20, 2017. (SAC, ¶ 33.) The agreement between APOA and Management Trust was not approved in accordance with the terms of the CC&Rs or California law. (SAC, ¶ 34.)

According to the CC&Rs, Cafarelli, as developer, appoints three members of the Board, and two members of the Board are elected by all of the members of the APOA. (SAC, ¶¶ 36-38.) Cafarelli has three votes for each unit that she owned rather than the one vote per unit of other owners. (SAC, ¶ 37.) The first Board members appointed by Cafarelli were Cafarelli, and defendants Jan Hill and Thomas Bonomi. (SAC, ¶ 39.) In December 2017, without having adopted election rules, the member-elected Board members were defendants Sam Hedgpeth and Sonia Rosenbaum. (SAC, ¶ 40.)

The CC&Rs require the Board to review all commercial leases to ensure that the leases contain a provision binding the lessee to the terms of the CC&RS. (SAC, ¶ 44.) None of the commercial leases at AP contain such a provision, and the Board has not reviewed any of these leases. (SAC, ¶¶ 44-46.) There are numerous commercial operations at AP that violate the terms of the CC&RS for which no action has been taken by the APOA notwithstanding notice from Doe. (SAC, ¶ 47.) Cafarelli, in her capacity as manager, president, and director of the APOA, caused to be installed a satellite dish in common area reserved for the exclusive use of the residents, which satellite dish exclusive serves commercial operations owned and operated by Cafarelli. (SAC, ¶¶ 48-55.)

Among the facilities of common area of the AP is an area designated as the “wine room.” (SAC, ¶ 56.) Maintenance and repair of the wine room is paid from HOA fees. (SAC, ¶¶ 58-59.) Doe has been excluded from the wine room. (SAC, ¶¶ 57, 60.) According to Cafarelli, at the time Doe purchased her unit, Doe was told in the seller’s disclosure that she would not have access to the wine room. (SAC, ¶ 62.) The seller’s disclosure is actually silent as to access and use of the wine room. (Ibid.) Denying Doe access and use of the wine room violates the CC&Rs and constituted a misrepresentation when Doe purchased her unit. (SAC, ¶¶ 65-73.)

In August 2017, the Board notified the members that an election would be held for a two-year term on the Board. (SAC, ¶ 89.) The notice did not reference election rules, which had not been adopted notwithstanding legal requirements to do so. (SAC, ¶¶ 87-91.) Doe ran as a candidate for a Board position, but it was announced that Hedgpeth and Rosenbaum were elected. (SAC, ¶ 95.) The election failed to comply with California law and is invalid. (SAC, ¶¶ 91-104.)

Doe suffers from a documented intellectual disability which causes her to suffer from crippling anxiety and an inability to process information when she is confronted with a stressful situation. (SAC, ¶ 105.) When appearing in a public space or speaking before a group of people, Doe is best served when she has the benefit of an interpreter/ facilitator who can help her process the information. (SAC, ¶ 106.) Doe has brought her employed counsel, James Scafide, to assist her at meetings. (SAC, ¶ 107.) At a meeting on October 9, 2017, APOA violated Doe’s rights by refusing her reasonable accommodation to be assisted. (SAC, ¶ 108-109.) The Board thereafter held one meeting with a call-in number which allowed Doe to participate remotely. (SAC, ¶ 110.) When Doe asked that until the issue of a facilitator was resolved, a call-in number be continued to be provided, Cafarelli announced that there would be no further call-in numbers for meetings, an action taken in spite for Doe based solely on her disability. (Ibid.) APOA has since stated that Doe could have an interpreter at meetings but that the interpreter must be approved by APOA and could not be Scafide or any member of his law firm. (SAC, ¶¶ 111-115.) APOA also refused Doe use of the “club room” to meet with supporters for her campaign for a seat on the Board when Doe would not agree to submit a $500 deposit. (SAC, ¶ 117.) This refusal violated Civil Code section 4515 and was part of a pattern of harassment based on her disability. (SAC, ¶¶ 118-120.)

The CC&Rs prohibit any activity in the commercial operation that constitutes a nuisance. (SAC, ¶ 122.) Beginning in 2017, Cafarelli, by and through the Cafarelli Entities, began adding tenants to the Santa Barbara Public Market food establishments that creates plumes of grease and smoke to be emitted from vents located nearby windows of Doe’s units and constituting a nuisance. (SAC, ¶¶ 121-123.)

On July 12, 2017, a tenant of the Santa Barbara Public Market applied for a license to sell alcohol in violation of the CC&Rs. (SAC, ¶ 133.) The application was opposed by Doe. (Ibid.) As part of the discovery process, counsel for the applicant sought various documents by subpoena regarding Doe from APOA and VSP. (SAC, ¶ 134.) Doe was never advised that this information was being sought either by the counsel for the license applicant, by Cafarelli or any of the Cafarelli Entities, or by APOA. (SAC, ¶ 135.) As a result, confidential information of Doe was disclosed in violation of Doe’s right to privacy. (SAC, ¶¶ 136-141.)

(2) Procedural History

On October 10, 2018, Doe filed her initial complaint in this action asserting 27 causes of action.

On December 19, 2018, without any defendant having responded, Doe filed her first amended complaint (FAC), also asserting 27 causes of action.

On February 28, 2019, defendants Jasmine Hale and Adams Stirling PLC filed their special motion to strike as to all causes of action in the FAC against them.

On April 2, 2019, the Court granted the special motion of Hale and Adams Stirling, striking causes of action 21 through 26 against them. The Court also awarded them their attorney fees and costs, which amount was to be fixed by later motion. (The attorney fee motion was filed and originally set for this hearing on June 17, but was continued by the Court to July 16.)

On April 10, 2019, Doe filed her SAC. The SAC asserts 26 causes of action: (1) declaratory relief; (2) preliminary injunction; (3) preliminary injunction; (4) breach of covenant; (5) nuisance; (6) conspiracy to commit nuisance; (7) trespass; (8) conspiracy to commit trespass; (9) fraud; (10) intentional misrepresentation; (11) negligent misrepresentation; (12) concealment; (13) conspiracy to commit fraud; (14) conversion; (15) conspiracy to commit conversion; (16) intentional infliction of emotional distress; (17) negligent infliction of emotional distress; (18) breach of fiduciary duty; (19) breach of fiduciary duty; (20) breach of fiduciary duty; (21) defamation; (22) public disclosure of private facts; (23) conspiracy to disclose private facts; (24) discrimination in violation of federal law; (25) discrimination in violation of California law; and, (26) violation of Civil Code section 4515.

On April 18, 2019, APOA filed its motion to quash plaintiff’s subpoena to Pacific Western Bank. This motion to quash is now before the Court.

On May 14, 2019, SBPM and VSP filed their demurrer and motion to strike portions of the SAC. This demurrer and motion to strike are now before the Court.

On May 21, 2019, Hedgpeth and Rosenbaum filed their demurrer and motion to strike portions of the SAC. This demurrer and motion to strike are now before the Court. Also on May 21, 2019, Cafarelli, Hill, Bonomi, and UD LLC filed their demurrer and motion to strike portions of the SAC. This demurrer and motion to strike are set for hearing on June 25.

On May 24, 2019, APOA and Management Trust filed their demurrer and motion to strike portions of the SAC. This demurrer and motion to strike are set for hearing on June 25. Also on May 24, 2019, APOA and Management Trust filed a “joinder” to SBPM and VSP’s motion to strike.

On May 28, 2019, Doe filed her notice of appeal of the Court’s ruling of April 2 on the special motion to strike.

On June 7, 2019, APOA and Management Trust filed their special motion to strike portions of plaintiff’s SAC. This motion is set for hearing on July 16.

On June 10, 2019, APOA and Management Trust filed a notice withdrawing their motion to strike portions of the SAC that they filed on May 24 that was set for hearing on June 25.

Doe opposes all pending motions and demurrers.

Analysis:

(1) Motion to Quash

After APOA and Management Trust filed their motion to quash, these defendants filed a special motion to strike.

“All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.” (Code Civ. Proc., § 425.16, subd. (g).) Except where a motion for specified discovery is made and ordered under subdivision (g), the court may not rule on discovery motions until the disposition of the special motion to strike. (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1129.) The Court therefore will continue the hearing on the motion to quash to the hearing date on the special motion to strike.

(2) Demurrer of SBPM and VSP

“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

“A special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (People v. Lim (1941) 18 Cal.2d 872, 883.) “As against special demurrers, the facts must be alleged with sufficient clarity to inform defendants of the issues to be met.” (Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.)

In the analysis of this section, SBPM and VSP are collectively referred to as the demurring defendants or demurring parties. (The terms “demurring parties” or “demurring defendants” are used differently in the section analyzing the demurrer of Samuel Hedgpeth and Sonia Rosenblum, below, to apply to those defendants.)

(A) Nuisance and Trespass Claims

Doe’s fifth cause of action is for nuisance. The demurring parties first argue that the cause of action is uncertain because Doe does not state whether her legal theory asserted in this cause of action is for public or private nuisance. The demurrer on this ground is overruled. A demurrer, whether general or special, addresses only the issue of whether facts are sufficiently pleaded to state a cause of action. “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38; Santa Clara County v. Hayes Co. (1954) 43 Cal.2d 615, 619–620 [demurrer for uncertainty does not lie where the uncertainty is only in the legal effect of facts alleged].) In any event, in opposition, Doe clarifies that the cause of action is asserted as a private nuisance.

“[A] cause of action for private nuisance [is a claim for] a nontrespassory interference with the private use and enjoyment of land. [Citation.] In distinction to trespass, liability for nuisance does not require proof of damage to the plaintiff’s property; proof of interference with the plaintiff’s use and enjoyment of that property is sufficient. [Citation.] In further distinction to trespass, however, liability for private nuisance requires proof of two additional elements.” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937.) “The first additional requirement for recovery of damages on a nuisance theory is proof that the invasion of the plaintiff’s interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial actual damage.’ [Citations.] The Restatement (Second) recognizes the same requirement as the need for proof of ‘significant harm’ [citation], which it variously defines as ‘harm of importance’ and a ‘real and appreciable invasion of the plaintiff’s interests’ [citation] and an invasion that is ‘definitely offensive, seriously annoying or intolerable’ [citation]. The degree of harm is to be judged by an objective standard, i.e., what effect would the invasion have on persons of normal health and sensibilities living in the same community? [Citation.] ‘If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncracies of the particular plaintiff may make it unendurable to him.’ [Citation.] This is, of course, a question of fact that turns on the circumstances of each case.” (Id. at p. 938, italics omitted.) “The second additional requirement for nuisance is superficially similar but analytically distinct: ‘The interference with the protected interest must not only be substantial, but it must also be unreasonable’ [citation], i.e., it must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’ [Citations.] The primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant’s conduct, taking a number of factors into account. [Citation.] Again the standard is objective: the question is not whether the particular plaintiff found the invasion unreasonable, but ‘whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.’ [Citation.] And again this is a question of fact: ‘Fundamentally, the unreasonableness of intentional invasions is a problem of relative values to be determined by the trier of fact in each case in the light of all the circumstances of that case.’ [Citation.]” (Id. at pp. 938-939, italics omitted.)

The demurring parties argue that none of the elements of private nuisance are sufficiently alleged and that Doe has alleged consent by virtue of the CC&Rs. The nuisance is alleged to be the constant and recurring entry of smoke and noxious fumes, which smoke and fumes enter Doe’s unit from the ventilation of the fast-food cooking areas of the commercial units. (SAC, ¶¶ 172, 174.) Allegations that the smoke is indecent and harmful to the senses and interferes with Doe’s enjoyment of her property are sufficient allegations of ultimate facts that the smoke caused Doe substantial actual damage and substantial interference with Doe’s enjoyment of her property.

However, the element of unreasonable use is insufficiently pleaded. Section 3.4 of the CC&Rs are alleged as: “3.4 Nuisance. No activity shall be conducted in any Unit or the Common Area that constitutes a nuisance or unreasonably interferes with the use or quiet enjoyment of the Occupants of any other Condominium. No use is allowed which creates conditions that are hazardous, noxious or offensive through the emission of odor, fumes, smoke, cinders, dust, gas, vibrations, glare, refuse, water-carried waste, or excessive noise. … [¶] The determination of whether an activity within a Commercial Condominium is a nuisance must take into account the commercial characteristics of the Condominium. Any commercial activities being conducted within a Commercial Condominium in strict compliance with all laws, ordinances, permits and approvals shall not be considered a nuisance.” (SAC, exhibit A.) (Note: Exhibit A is attached to the FAC and appears to have been intended to have been attached to the SAC as it is incorporated in the text of the SAC. The Court deems exhibit A of the FAC to be exhibit A of the SAC. The better practice is to assure that all cited exhibits are attached to each complaint.)

Doe alleges that the smoke and other nuisance is in contravention of laws and beyond the scope of the CC&Rs, but the CC&Rs demonstrate that the smoke and odors are not nuisances to the extent that they are consistent with the commercial characteristics of the commercial units and not nuisances to the extent that the activity complies with law. Smoke and odors are to be expected from food establishments; there are no allegations that food establishments are generally prohibited. In order to allege that the use constitutes a nuisance, Doe must allege in what way the conditions are unreasonable given the CC&Rs, such as a specific statutory violation or other facts which demonstrate that the smoke and odors here are beyond what is permitted in the commercial units under the CC&R definition of nuisance. The conclusory allegation is insufficient. The demurrer to the fifth cause of action will be sustained on this ground.

Demurring defendants’ argument with respect to consent is subject to the same analysis. The CC&Rs demonstrate Doe’s consent to the extent that the smoke and odors fall within the CC&Rs definition of activity that is not a nuisance for the commercial units. Doe must allege sufficient facts showing activity not permitted by the CC&Rs. The demurrer to the fifth cause of action will be sustained on this ground as well.

Doe’s seventh cause of action is for trespass. “Trespass is an invasion of the plaintiff’s interest in the exclusive possession of land. [Citations.] ‘ “The essence of the cause of action for trespass is an ‘unauthorized entry’ onto the land of another.” [Citation.]’ [Citation.] Thus, in order to state a cause of action for trespass a plaintiff must allege an unauthorized and tangible entry on the land of another, which interfered with the plaintiff’s exclusive possessory rights.” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173-1174.) Demurring defendants argue that Doe has not alleged facts sufficient to state this cause of action.

Doe alleges as the interferences: (1) preventing Doe from having access to the Wine Storage Room; (2) taking possession of the residential condominium roof facilities and designating those facilities as off limits to residents and members; (3) installing a satellite dish in the residential condominium roof facilities; and (4) causing smoke or fumes to enter Doe’s property. (SAC, ¶¶ 191, 197a.) With respect to interferences 1, 2, and 3, the SAC is uncertain as to whether VSP and SBPM are asserted to have caused any of those interferences. As VSP and SBPM’s roles have been alleged in the SAC, it seems unlikely that these parties are asserted to have been directly involved in any or all of those activities. To the extent that VSP or SBPM are participants, the allegations in the SAC are uncertain to the extent that entry is unauthorized for purposes of a trespass claim when permission to use the common area was allegedly given by another co-tenant, Cafarelli. (See SAC, ¶¶ 49-50; Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal.2d 585, 602 [“a single cotenant may confer occupancy rights upon a third person”]; cf. Civ. Code, § 843.) With respect to interference 4, smoke, fumes, and odor are insufficient by themselves to state a claim for trespass. “Succinctly stated, the rule is that actionable trespass may not be predicated upon nondamaging noise, odor, or light intrusion ….” (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233.) The general and special demurrers to the seventh cause of action will be sustained.

(B) Conspiracy to Commit Nuisance or Trespass

Doe’s sixth cause of action is for conspiracy as to the nuisance claim. “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] … [¶] Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) Thus, civil conspiracy as a basis for liability must allege both the underlying tort and the fact of conspiracy.

Demurring defendants argue that the sixth cause of action is redundant. There is a split in authority as to whether redundancy is a proper ground for sustaining a demurrer. “This is not a ground on which a demurrer may be sustained. [Citation.]. A quarter-century ago the code authorized a motion to strike ‘irrelevant and redundant’ matter from a pleading. [Citation.] But the parallel provision now empowers the court only to ‘[s]trike out any irrelevant, false, or improper matter inserted in any pleading.’ [Citation.] The elimination of the reference to redundancy may have rested on the irreproachable rationale that it is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness. [Citation.] This is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-890; accord, McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 303 [“The fallacy of that argument is that ‘redundancy’ is not a cause for demurrer.”]; see also Santa Clara County v. Hayes Co. (1954) 43 Cal.2d 615, 619-620.) The court does not sustain demurrers on the grounds of redundancy for the simple reason that there is no need to do so: if a cause of action is stated redundantly, then it adds nothing to the litigation and removing it saves no effort.

Here, the cause of action is not redundant because plaintiff permissibly may allege alternative theories of liability based upon different prospects of proof. “When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) The alternative theory here is liability as a co-conspirator rather than as a direct participant. “The pleading of civil conspiracy is merely a procedural method of joining defendants [citation] and is superfluous when … concurrent or successive acts are alleged, unless the plaintiff cannot show or prove each defendant committed a wrongful act or some part of it [citation]. The only significance of a civil conspiracy allegation is that it renders each participant responsible as a contributory tortfeasor whether or not he actually committed the wrongful act.” (Barney v. Aetna Casualty & Surety Co. (1986) 185 Cal.App.3d 966, 983.) “ ‘As long as two or more persons agree to perform a wrongful act, the law places civil liability for the resulting damage on all of them, regardless of whether they actually commit the tort themselves.’ [Citations.]” (Id. at p. 982.)

Putting these concepts together, the fifth and sixth causes of action both depend upon the same underlying tort with the fifth cause of action asserting direct liability of each defendant and the sixth cause of action asserting liability of the defendants as alternatively based upon one or more of the defendants in the fifth cause of action having committed the underlying tort and the remaining defendants being liable for that tort by virtue of the conspiracy. The issue then is whether there is a sufficient allegation of the underlying tort having been committed by at least one defendant and a sufficient allegation of conspiracy as to the remaining defendants.

As discussed above, the Court sustains the demurrer to the fifth cause of action because the fifth cause of action fails to allege sufficiently the underlying nuisance condition regardless of who caused the condition to exist. Therefore there is no sufficiently alleged underlying tort to support a civil conspiracy liability. The demurrer to the sixth cause of action will be sustained.

Doe’s eighth cause of action is conspiracy to commit trespass. As discussed above, the Court sustains the demurrer to the seventh cause of action in part because the underlying action regarding smoke and odor does not sufficiently allege a trespass and in part because the claim of trespass is uncertain given allegations that the trespass defendants entered the property under authority of a co-tenant. Because the underlying tort is either insufficiently pleaded or uncertain and subject to demurrer on that ground, the conspiracy claim is insufficiently pleaded or uncertain to the same extent. The demurrer to the eighth cause of action will be sustained.

(C) Fraud

Doe’s ninth cause of action is for fraud, tenth cause of action is for intentional misrepresentation, eleventh cause of action is for negligent misrepresentation, and twelfth cause of action is for concealment.

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] … [¶] This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.] A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege 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.’ [Citation.]” (Id. at p. 645, internal quotation marks and italics omitted.)

Each of these causes of action is based upon alternative characterizations of the same communications by Cafarelli. (See SAC, ¶¶ 204-206, 211-214, 220-223, 230-233.) (Note: For purposes of this discussion in the absence of argument by the demurring parties, the Court assumes, without deciding, that the allegations are sufficient to plead actionable misrepresentations by Cafarelli.) The allegations include general statements that Cafarelli made the misrepresentations as the agent of the demurring defendants. Demurring defendants argue that these allegations are insufficiently specific. In opposition, Doe argues that the allegation of the misrepresentation, together with the allegation that SBPM and VSP are entities managed and controlled by Cafarelli, are collectively sufficient to allege a cause of action for fraud. In a typical case involving an officer of a corporation, an allegation that a person is an executive officer of a corporation is usually sufficient to show authority of the person to speak with respect to a communication that is within the scope of the officer’s duties for that corporation. This is because there are strong inferences of authority in the typical situation based upon the position of the person in the corporation and the content of the communication. Here, the situation is made much more complex by allegations of communications being made by Cafarelli and conclusory allegations that the communications were made on behalf of multiple other defendants for whom there is no basis for inferring that the other defendants authorized Cafarelli to speak on that subject. The fact that a person holds offices with multiple corporations does not thereby imply that every corporation authorizes that person to speak for it on all subjects. So, with respect to VSP and SBPM, allegations as to misrepresentations regarding the use of AP common areas and regarding compliance of the APOA Board with the Board’s obligations under the CC&Rs do not give rise to any inference that Cafarelli was authorized to speak on behalf of either VSP or SBPM by virtue of Cafarelli holding office with those entities. In order to plead corporate authorization to speak where the communication is not clearly within the scope of the performance of the office for the respective entity, there need to be some facts alleged which directly or indirectly establish the corporate authorization beyond a generic statement that Cafarelli acted as agent for a long list of co-defendants.

For causes of action based upon affirmative misrepresentation, the above analysis applies directly. For causes of action based upon concealment or nondisclosure based upon what was not communicated, the allegations to satisfy the corporate authorization require more. “There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.]’ [Citation.]” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) The generic allegation that the parties are in a fiduciary relationship by virtue of the equally generic allegation that Cafarelli was acting as agent for a long list of co-defendants is insufficient. The corporate authorization allegations need to include sufficient facts to establish actionable fraud based upon the specific breach of the obligation to communicate the missing information. As to demurring defendants SBPM and VSP, the allegations are not sufficiently specific. The demurrer will be sustained to the ninth, tenth, eleventh, and twelfth causes of action.

The thirteenth cause of action is for conspiracy to commit fraud. Demurring defendants do not argue that the allegations that Cafarelli made actionable misrepresentations are insufficient as to Cafarelli. (See Demurrer, pp. 24-25.) Therefore, as to these defendants, the Court finds that the demurring defendants have not shown that Doe has not alleged the underlying tort of fraud. (The Court does not here address or express any opinion as to Cafarelli’s own arguments as to the sufficiency of these allegations.) The remaining issue is whether the allegations of conspiracy are sufficient.

“The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in furtherance of the common design.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1062.) “[A]ctual knowledge of the planned tort, without more, is insufficient to serve as the basis for a conspiracy claim. Knowledge of the planned tort must be combined with intent to aid in its commission. ‘The sine qua non of a conspiratorial agreement is the knowledge on the part of the alleged conspirators of its unlawful objective and their intent to aid in achieving that objective.’ [Citations.]” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582.) Knowledge and intent are ultimate facts that may be alleged using conclusive language. (City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 803.) Knowledge and intent are adequately alleged.

“ ‘General allegations of agreement have been held sufficient [citation] ….’ [Citations.] (Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th at pp. 47-48 [conspiracy in restraint of trade].) Here, there is an express allegation of agreement and intent that the fraud be committed. The allegation of conspiracy to commit fraud is sufficient. The demurrer to the thirteenth cause of action will be overruled.

(D) Defamation

Doe’s twenty-first cause of action is for defamation. The action is based upon allegations that Hedgpeth stated to Doe, “You are crazy” and “This is crazy. She’s acting crazy,” upon the suspension of the October 9, 2017, meeting. (SAC, ¶¶ 126, 279, 280.) Demurring defendants assert that these statements are insufficient to support a claim for defamation and that Hedgpeth’s statement cannot be imputed to demurring defendants.

In opposition, Doe argues that the cause of action alleges that all defendants to that cause of action (including demurring defendants) made statements to that effect and that SAC adequately alleges that an agent of demurring defendants made defamatory statements.

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage. [Citations, fn. omitted.] Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)

“In defamation cases California follows a … pleading rule, under which ‘the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.’ [Citations.]” (Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 635.) In slander cases, “[l]ess particularity is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense. [Citations.] Nor is the allegation defective for failure to state the exact words of the alleged slander. … [S]lander can be charged by alleging the substance of the defamatory statement.” (Okun v. Superior Court (1981) 29 Cal.3d 442, 458.)

“Where the words or other matters which are the subject of a defamation action are of ambiguous meaning, or innocent on their face and defamatory only in the light of extrinsic circumstances, the plaintiff must plead and prove that as used, the words had a particular meaning, or ‘innuendo,’ which makes them defamatory. [Citations, fn. omitted.] Where the language at issue is ambiguous, the plaintiff must also allege the extrinsic circumstances which show the third person reasonably understood it in its derogatory sense (the ‘inducement’). [Citations.]” (Smith v. Maldonado, supra, 72 Cal.App.4th at pp. 645-646.)

The pleading of defamation is insufficient on several grounds. First, the SAC alleges a specific incident in which Hedgpeth made the statement, “You are crazy.” (This incident is further discussed below.) In opposition, Doe argues that all of the defendants made similar statements. To the extent that any other incident, or republication of the initial statement, is asserted as a basis for liability, those other incidents are not alleged sufficiently to give defendants notice of the issues sufficient to enable preparation of their defense. Alternatively, the cause of action is uncertain in that regard.

Second, the defamatory meaning of the statement is not pleaded. “A statement is not defamatory unless it can reasonably be viewed as declaring or implying a provably false factual assertion [citation], and it is apparent from the ‘context and tenor’ of the statement ‘that the [speaker] seriously is maintaining an assertion of actual fact.’ [Citation.]” (Carver v. Bonds (2005) 135 Cal.App.4th 328, 344.) “ ‘Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot “ ‘reasonably [be] interpreted as stating actual facts’ about an individual.” [Citations.] Thus, “rhetorical hyperbole,” “vigorous epithet[s],” “lusty and imaginative expression[s] of … contempt,” and language used “in a loose, figurative sense” have all been accorded constitutional protection. [Citations.]’ [Citation.]” (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809.) Apart from its meaning as “[m]entally deranged,” “crazy” also means “[d]eparting from proportion or moderation.” (American Heritage Dict. (5th ed. 2016) p. 426.) The circumstances in which these statements were made included a spirited dispute regarding Scafide’s presence at the October 7, 2017, meeting. These alleged circumstances strongly imply a non-defamatory meaning was intended and understood, notwithstanding the allegation that Doe has a documented intellectual disability. The statements under the circumstances as now alleged do not rise to the level of defamatory matter.

Third, the allegations specific to the twenty-first cause of action do not allege any agency relationship with the demurring defendants. As discussed above, the general allegations regarding ownership and control of entities are insufficient to plead vicarious liability for VSP and SBPM based upon statements made by Hedgpeth at the October 7 meeting.

Accordingly, the demurrer to the twenty-first cause of action will be sustained.

(E) Invasion of Privacy

Doe’s twenty-second cause of action is for public disclosure of private facts. The elements of a cause of action for public disclosure of private facts are: “ ‘(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.’ ” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214, citation omitted.)

Doe alleges that on July 12, 2017, a tenant of the Santa Barbara Public Market, which is owned or controlled by Cafarelli, applied for a license to sell alcohol in violation of the CC&Rs of APOA. (SAC, ¶ 289.) Doe filed an opposition to the application. (Ibid.) As part of the discovery process related to a hearing on the license application, counsel for the applicant sought by subpoena from APOA, various documents, including closing documents relating to the sale of Doe’s unit, APOA’s governing documents, and disclosures made to Doe related to the purchase of her unit. (SAC, ¶ 290.) While some of the documents were in the possession of APOA, some were not. (Ibid.) At the same time, counsel for the license applicant requested the same information from VSP. (Ibid.) The documents were supplied by Cafarelli to APOA so that they could be provided in response to the subpoena. (SAC, ¶ 292.) Defendants’ publicized private information concerning plaintiff when defendants provided confidential documents related to Doe’s financing of her condominium. (SAC, ¶ 291.)

Demurring defendants argue that Doe fails to allege conduct by VSP or SBPM, argue that Doe fails to allege that the documents were publicly disclosed, and argue that the conduct is privileged by the litigation privilege of Civil Code section 47, subdivision (b).

The SAC alleges that the documents were provided by Cafarelli to APOA and then to the third party in response to the subpoena. (SAC, ¶¶ 138-139.) There are no allegations of conduct directly by VSP or SBPM. Again, as discussed above, the generic allegations are not sufficient allegations of agency as they relate to the specific conduct alleged. Doe fails adequately to allege vicarious liability of VSP or SBPM.

“ ‘ “[A]ctionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.” ’ [Citation.]” (Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 429; see also Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 27 [“common law invasion of privacy by public disclosure of private facts requires that the actionable disclosure be widely published and not confined to a few persons or limited circumstances”].) The SAC alleges that the documents were conveyed to the third party through the response to the subpoena. (SAC, ¶ 138.) There are no facts alleged that the disclosure was made to anyone other than the party who issued the subpoena. There are no facts alleged by which disclosure solely to the party who issued the subpoena would constitute a serious invasion of privacy by “public” disclosure either by the quality or by the scope of the disclosure. The conclusory allegation that defendants publicized the information is not sufficient. Doe fails adequately to plead the element of public disclosure.

Demurring defendants argue that the litigation privilege of Civil Code section 47, subdivision (b), precludes this action, citing Foothill Federal Credit Union v. Superior Court (2007) 155 Cal.App.4th 632 (FFCU). In FFCU, the plaintiffs sued a credit union for invasion of privacy where the credit union produced consumer records beyond the scope of a subpoena that had been narrowed. (Id. at p. 634.) The FFCU court determined that the litigation privilege applied and issued a writ of mandate directing the trial court to sustain a demurrer to the invasion of privacy claim. (Id. at pp. 642-643.) Demurring defendants point out that FFCU is factually very close to this case and argue that its ruling should be dispositive.

In response, Doe argues that the subpoena was in connection with a permit for a business to sell alcohol in the public market and that Doe alleges that the files were not in the possession of APOA when the subpoena was issued. As to Doe’s first argument that the disclosure must have some logical connection to the action, this argument ignores the text of section 47, subdivision (b), which makes that section applicable to publications made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure ….” The issue is not whether the disclosed documents relate to the licensing proceeding in an evidentiary-relevance sense, but whether the subpoena relates to a proceeding subject to section 47. Here, as alleged, the licensing proceeding would be an official proceeding authorized by law (inferred from the availability of a subpoena). The documents disclosed are alleged to have been provided in response to the subpoena. In FFCU, the court found that the litigation privilege applied to documents responding to a subpoena even though the subpoena had been narrowed by agreement and that consumer notice had not been provided to parties affected by the subpoena as originally served. (FFCU, supra, 155 Cal.App.4th at pp. 634-635.) The litigation privilege is not avoided because the documents sought by the subpoena could have been subject to narrowing or quashing as a result of the subpoena being too broad in the context of the proceeding in which the subpoena was issued.

Doe’s second argument is that the disclosure was a matter of unprivileged republication rather than production pursuant to the subpoena because APOA did not have the documents at the time of the issuance of the subpoena. It is unclear how this argument applies. Under the reasoning of FFCU, the litigation privilege bars any action where the publication element of the action is accomplished by providing documents in response to a subpoena. Thus, from whatever source APOA acquired the documents, the invasion of privacy claim is barred where the invasion is through compliance with the subpoena. Doe’s argument would seem to assert (contrary to the factual allegations of the SAC) that the invasion of privacy was by Cafarelli providing the documents to APOA. This argument makes little sense given Cafarelli’s position with APOA and given that APOA would be obliged to produce documents under APOA’s control. (See Code Civ. Proc., § 1985, subd. (a).) Absent contrary allegations, an agent providing documents to her principal in order for the principal to comply with a subpoena would, under the same reasoning of FFCU, be subpoena-compliant activity protected by the litigation privilege.

The demurrer to the twenty-second cause of action will therefore be sustained.

Doe’s twenty-third cause of action is for conspiracy based upon the invasion of privacy asserted in the twenty-second cause of action. Because the Court determines that the invasion of privacy claim is not stated by virtue of the application of the litigation privilege, for the reasons explained above regarding conspiracy claims, the conspiracy claim is also not stated. The demurrer to the twenty-third cause of action will be sustained.

(F) Leave to Amend

This is the first complaint on which the Court has ruled regarding the demurring parties’ demurrer. It is unclear to what extent Doe can truthfully allege these claims based upon the Court’s analysis. Nonetheless, the Court will grant leave to amend as to all causes of action for which the Court sustains the demurrer of defendants VSP and SBPM.

(3) Motion of SBPM and VSP to Strike Portions of Complaint

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

SBPM and VSP move to strike paragraph 295 of the SAC. Paragraph 295 is within the twenty-second cause of action. As discussed above, the Court sustains the demurrer of these parties to that cause of action. The motion to strike paragraph 295 is moot and will be denied on that basis.

SBPM and VSP move to strike paragraphs c and e of the prayer of the SAC, which state:

“c. For damages paid by Defendants to Ms. Doe in the amount of $1,500 for each violation of Civil Code § 5105.”

“e. For damages paid by Defendants to Ms. Doe in the amount of $1,500 for each violation of Civil Code § 5105.”

Civil Code section 5105 relates to the requirement for APOA to adopt election rules. The only claim for which the Court is not sustaining the demurrer of these parties is the claim for conspiracy to defraud, which does not relate to this requirement. As presently pleaded after the effect of the demurrer, there are no claims to which these prayers apply to these defendants. The motion will be denied as moot as to these moving parties.

SBPM and VSP move to strike from paragraph f of the prayer of the SAC, “but no less than $5,000,000.00.” Paragraph f provides:

“f. Compensatory damages as subject to proof, but no less than $5,000,000.00.”

SBPM and VSP base their motion to strike on Code of Civil Procedure section 425.10, subdivision (b). Section 425.10 provides:

“(a) A complaint or cross-complaint shall contain both of the following:

“(1) A statement of the facts constituting the cause of action, in ordinary and concise language.

“(2) A demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages is demanded, the amount demanded shall be stated.

“(b) Notwithstanding subdivision (a), where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated, but the complaint shall comply with Section 422.30 and, in a limited civil case, with subdivision (b) of Section 70613 of the Government Code.”

Moving parties assert that this is a personal injury action and therefore the amount of damages should not be stated. The better practice of pleading would be to separate out prayers relating to personal injury claims from prayers relating to economic claims (such as fraud). Insofar as the only remaining claim against the moving defendants is for fraud, which is not a personal injury action, the prayer is proper under the present state of the pleadings following the demurrer. The motion to strike portions of paragraph f will be denied.

SBPM and VSP move to strike paragraph g of the SAC, which provides:

“g. Punitive Damages subject to proof.”

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “ ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

“An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

The allegations of fraud and conspiracy in and incorporated into the thirteenth cause of action do not allege that the authorization (i.e., agreement to commit fraud) was on the part of an officer, director, or managing agent on behalf of either of the moving parties. As discussed above, a person holding offices in multiple entities does not by itself imply authorization by every entity as to every action undertaken. The pleading is insufficient as to VSP and SBPM. The motion to strike the punitive damage claim will be granted as to VSP and SBPM.

The Court denies Doe’s request for judicial notice in support of Doe’s opposition. As discussed above, the mere fact of holding offices with multiple entities does not imply universal authorization. The requests are therefore not relevant to the disposition of this motion and will be denied on that basis. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)

SBPM and VSP move to strike paragraphs h and i of the prayer of the SAC, which state:

“h. For Attorney’s Fees pursuant to applicable statues.”

“i. For Attorney’s fees pursuant to the CC&Rs.”

As set forth in the opposition, Doe premises liability for attorney fees under these sections based upon the trespass and nuisance claims (Opposition, pp. 10-11) for which the Court has sustained demurrers. Because these prayers as now written could apply to the moving defendants notwithstanding the sustaining of demurrers to the trespass and nuisance causes of action, the motion to strike will be granted as to the moving defendants.

The Court will grant Doe leave to amend for the same reasons discussed above.

(4) Demurrer of Hedgpeth and Rosenbaum

Defendants Hedgpeth and Rosenbaum demur to all causes of action of the SAC except the fifth (which is not asserted against these parties). For purposes of this section, Hedgpeth and Rosenbaum are collectively referred to as the “demurring defendants” or “demurring parties.”

(A) Nuisance, Trespass, and Associated Conspiracy

As discussed above in the context of the demurrer of VSP and SBPM, the Court has concluded that Doe has not sufficiently alleged the substantive aspects of nuisance and trespass. The above analysis applies to these demurring defendants. For the same reason explained above, the demurrers to the sixth, seventh, and eighth causes of action will be sustained.

(B) Fraud

As discussed above in the context of the demurrer of VSP and SBPM, the Court has concluded that Doe has not sufficiently alleged the fraud, intentional misrepresentation, negligent misrepresentation, and concealment based upon actions of persons other than Cafarelli. The above analysis applies to these demurring defendants. For the same reason explained above, the demurrers to the ninth, tenth, eleventh, and twelfth causes of action will be sustained.

With respect to the thirteenth cause of action, Doe sufficiently alleges conspiracy as to the demurring defendants for the same reasons discussed above. These demurring defendants make an additional argument relating to the underlying fraud claims, however, based upon the statute of limitations.

“A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. [Citation.] The running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. [Citation.] If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment ….’ [Citation.]” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325, italics omitted.)

The underlying fraud claims include allegations of continuing fraud as to review by the Board of commercial leases consistent with the CC&Rs. These allegations are not substantively addressed in the demurrer and are not on their face barred by any applicable statute of limitations. The SAC does not on its face show that no cause of action for fraud exists for which these demurring defendants cannot as a matter of law conspire. The demurrer to the thirteenth cause of action will be overruled.

(C) Defamation, Invasion of Privacy, and Associated Conspiracy

As discussed above in the context of the demurrer of VSP and SBPM, the Court has concluded that Doe has not stated the defamation claim because the statements by Hedgpeth are not alleged to be defamatory and there are no sufficient allegations of other statements to support the cause of action. The demurrer of the demurring parties to the twenty-first cause of action will sustained for the same reason.

The Court has also concluded that Doe has not stated the invasion of privacy and conspiracy to invade privacy claims because of the application of the litigation privilege. The demurrer of the demurring parties will be sustained for the same reasons to the twenty-second and twenty-third causes of action.

(D) Breach of Covenant and Breach of Fiduciary Duty

Doe’s fourth cause of action is for “breach of covenant.” This cause of action is based upon breaches of the CC&Rs by erecting a satellite dish, denying Doe access to the wine room and other common areas, and creating a nuisance from smoke and exhaust from the ventilation system. (SAC, ¶¶ 163-168.) The demurring defendants are alleged to be members of the Board. (SAC, ¶ 10.)

Demurring defendants argue that there are no allegations of personal action and so there is no liability. Doe provides no direct explanation as to how the fourth cause of action for “breach of covenant” is distinguished from the nineteenth and twentieth causes of action for breach of fiduciary duty. The apparent difference is that the fourth cause of action is based upon breach of provisions of the CC&Rs in the nature of breach of contract. “[B]oard members may not be held personally liable [for breach of contract] absent allegations that they entered into a contract with plaintiff on their own behalf or purported to bind themselves personally.” (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 512, fn. 20. (Frances T.).) There are no such allegations here and therefore there is no alleged basis for liability as to the demurring defendants for breach of covenant. The demurrer will be sustained to the fourth cause of action.

Doe’s nineteenth and twentieth causes of action are for breach of fiduciary duties by board members. Demurring defendants argue that the SAC does not allege specific conduct of the demurring defendants for which they could be personally liable. “To maintain a tort claim against a director in his or her personal capacity, a plaintiff must first show that the director specifically authorized, directed or participated in the allegedly tortious conduct [citation] ….” (Frances T., supra, 42 Cal.3d at p. 508.) Doe has, however, alleged that the Board acted in various ways in breach of its fiduciary duty to Doe. (SAC, ¶¶ 270, 276.) Doe has also alleged that the demurring defendants participated in the Board’s decision that are alleged to have been in breach of fiduciary duties. (See SAC, ¶ 41.) Doe has adequately alleged personal participation in the conduct she alleges as breach of fiduciary duty. The demurrer to the nineteenth and twentieth causes of action will be overruled.

(E) Conversion

Doe’s fourteenth cause of action is for conversion. Doe alleges conversion relating to the wine room, the residential condominium roof facilities, installation of a satellite dish, payment of invoices for the sole benefit of the commercial operation paid from the residential APOA account, and refund of money by APOA. (SAC, ¶ 243.)

Demurring defendants argue that these items are not proper subjects of a cause of action for conversion. “[C]onversion is a tort that may be committed only with relation to personal property and not real property.” (Munger v. Moore (1970) 11 Cal.App.3d 1, 7.) In opposition, Doe argues that by removing access to the wine room defendants converted the wine lockers, citing Zaslow v. Kroenert (1946) 29 Cal.2d 541 (Zaslow):

“Stated generally, ‘conversion is any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.’ [Citations.] The liability of one in possession of real property for the conversion of personal property which he finds upon it, depends, in most cases, upon a determination of whether the conduct of the defendant indicates an assumption of control or ownership over the goods. It is clear that, under some circumstances, refusal of one in possession of real property to permit, upon demand, the owner of chattels which were left there to remove his goods, constitutes conversion. [Citations.] And if the possessor of the real estate appropriates the chattels to his own use in obvious defiance of the owner’s rights, he is liable to the owner for the conversion of them.” (Zaslow, supra, 29 Cal.2d at pp. 549-550.)

“Under the common law of fixtures, property is either real or personal. [Citation.] Real property includes both land and things that are affixed to the land. [Citation.] … ‘A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws; except that for the purposes of sale, emblements, industrial growing crops and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale, shall be treated as goods and be governed by the provisions of the title of this code regulating the sales of goods.’ [Citation.] ‘ “The law relating to fixtures recognizes that under certain circumstances personal property becomes a part and parcel of real property and thereafter assumes the status of real property.” ’ [Citation.] (Vieira Enterprises, Inc. v. City of East Palo Alto (2012) 208 Cal.App.4th 584, 596-597.)

Fixtures remaining in the wine room are part of the real property and thus not subject to conversion. The allegations in the SAC that Doe was prevented from having access to the wine room demonstrates that Doe did not leave any of her personal property in the wine room. (See SAC, ¶ 243a.) Installation on real property and placing real property as off limits to Doe involve real, not personal property of Doe.

“ ‘A cause of action for conversion requires allegations of plaintiff’s ownership or right to possession of property; defendant’s wrongful act toward or disposition of the property, interfering with plaintiff’s possession; and damage to plaintiff. [Citation.] Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. [Citation.]’ [Citations.] A ‘generalized claim for money [is] not actionable as conversion.’ [Citations.]” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) Allegations relating to amounts paid or refunds made are not allegations that specific, identifiable sums effectively belonging to Doe were converted.

Doe has not alleged conversion of any specific personal property that may form the basis of a cause of action for conversion. The demurrer to the fourteenth cause of action will be sustained. For the same reasons discussed previously, in the absence of a properly-stated cause of action for conversion, no cause of action for conspiracy is stated based upon that cause of action for conversion. The demurrer to the fifteenth cause of action will be sustained.

(F) Infliction of Emotional Distress

Doe’s sixteenth cause of action is for intentional infliction of emotional distress. Doe bases this cause of action on the conduct of “[a]ll named defendants” in calling the police on Doe’s facilitator in front of the entire membership, disclosing Doe’s private information to a third party, and disclosing details about Doe’s disability to all members. (SAC, ¶ 252.)

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotation marks omitted.)

Demurring defendants argue that this cause of action fails because it does not identify the personal involvement of the demurring defendants, because the conduct is not outrageous within the meaning of this cause of action, and because Doe has not alleged severe emotional distress.

The cause of action is uncertain in its allegations of what particular defendants are alleged to have done. Doe does not explain or cite to incorporated paragraphs of the SAC to identify particular instances of this conduct and the persons engaging in the conduct. Cafarelli is alleged to have called the police, not either of the demurring defendants. (SAC, ¶ 125.) The disclosure of confidential information to a third party is alleged to have been done by defendants other than the demurring defendants. (SAC, ¶¶ 133-141.) Doe does not identify in opposition what defendants, or what allegations, are involved in the conduct of disclosing details about Doe’s disability. The SAC alleges the disclosure of disability as providing information about Doe by a letter of counsel to all association members informing them about Doe’s complaint to the U.S. Department of Housing and Urban Development (HUD) which included information regarding Doe and her disability. (SAC, ¶¶ 142-144.) This letter was circulated among the members by Hedgpeth. (SAC, ¶ 144.) As to defendant Rosenbaum, the demurrer will be sustained on the ground of failing to allege that she participated in any of the conduct giving rise to this cause of action.

With respect to the particular conduct involved, none of the conduct is alleged to show outrageous conduct within the meaning of this intentional tort. Calling the police on the facilitator is alleged to have occurred in the context of a dispute as to whether the facilitator was appropriately present at the October 9 meeting. (SAC, ¶ 125.) The circumstances may or may not have been proper; however, under the circumstances alleged calling the police was not outrageous conduct within the meaning of this tort. There are limited allegations presented regarding the disclosure of Doe’s information to a third party. As discussed above in the context of the invasion of privacy claim, the release of Doe’s information was alleged to have been done in response to a subpoena and was provided only to the subpoenaing party. These facts are insufficient to allege outrageous conduct. (Note: Demurring defendants do not argue that the litigation privilege would bar this action on the same basis as is argued with respect to the invasion of privacy claim. The Court therefore does not reach that issue here.) The circulation of a letter from counsel to association members addressing a complaint by Doe that affects the association is not outrageous conduct as here pleaded. The demurrer will be sustained as to this cause of action on this ground.

Doe alleges that she suffered severe emotional distress in conclusory terms only. (SAC, ¶ 254.) “[T]he mere allegation that the plaintiffs suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendant’s alleged outrageous conduct, failed to state a cause of action for intentional infliction of emotional distress.” (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047-1048.) The allegation of severe emotional distress is insufficient. The demurrer to this cause of action will be sustained on this ground as well.

Doe’s seventeenth cause of action is for negligent infliction of emotional distress. Negligent infliction of emotional distress has its own, unique limitations that are not discussed by the parties here. (See Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071-1073.) Nonetheless, for the same reasons discussed above, Doe has not alleged conduct specific to the demurring defendants for the conduct upon which the cause of action is based. Severe emotional distress is also required for this cause of action (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 989, fn. 12) and has not been sufficiently alleged. For the same reasons set forth above, Doe has not sufficiently alleged severe emotional distress. The demurrer will be sustained to this cause of action.

(G) Discrimination Claims

Doe’s twenty-fourth cause of action is for violation of federal law by being denied full and equal access to association meetings, common areas, and elections as a result of her disability. (SAC, ¶ 304.) The specific federal laws at issue are not discussed by either party. Demurring defendants argue that the Court had previously, on April 2, 2019, ruled that Doe’s claims fail as a matter of law, that Doe was not discriminated against on the basis of her disability, and was provided reasonable accommodations. The April 2 ruling is a ruling on other defendants’ special motion to strike and was resolved on the basis of evidence presented to the Court in the context of that motion. None of the Court’s April 2 rulings were dispositive based upon the allegations of the SAC. While the SAC does not contain within this cause of action allegations about specific actions of the defendants, the basis of these causes of action relate in part to conduct of the Board for which, as discussed above, Doe has adequately alleged that the demurring defendants participated. Because the demurring defendants have not identified in their moving papers the specific basis why this claim is insufficiently pleaded, the Court will not further address the generic claim that causes of action are not adequately alleged. The demurrer to this cause of action will be overruled.

The same issues and analysis apply to Doe’s twenty-fifth cause of action under Civil Code section 51, and twenty-sixth cause of action under Civil Code section 4515. The demurrer will be overruled to these causes of action.

(H) Declaratory and Injunctive Relief

Doe’s first cause of action is for declaratory relief. “Any person interested under a written instrument …, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, … may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.” (Code Civ. Proc., § 1060.) “A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties … and requests that these rights and duties be adjudged by the court.” (Maguire v. Hibernia Savings & Loan Society (1944) 23 Cal.2d 719, 728.)

The demurring defendants argue that there is no present controversy with these demurring defendants and that the action is barred by the one-year time limit of Civil Code section 5145.

The SAC seeks declarations that the 2017 election was held in contravention of law. (SAC, ¶ 153 & p. 39.) Insofar as the results of the 2017 election affect the present authority of the demurring defendants as directors, the SAC alleges a present controversy as to these demurring defendants.

“A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues. Upon a finding that the election procedures of this article, or the adoption of and adherence to rules provided by Article 5 (commencing with Section 4340) of Chapter 3, were not followed, a court may void any results of the election.” (Civ. Code, § 5145, subd. (a).)

This action was originally filed on October 10, 2018. The meeting originally set to tally the votes was on October 9, 2017. (SAC, ¶ 124.) That meeting was interrupted by the events regarding Scafide’s presence in room and suspended until a later date. (SAC, ¶ 128.) The results of the election were not announced until a meeting on October 19, 2017, (SAC, ¶ 95), within one year of the filing of the original complaint. As a matter of pleading, Doe has adequately alleged timely filing. The demurrer to the first cause of action will be overruled.

Doe’s second cause of action is for an injunction relating to the election issue discussed above. An injunction is expressly authorized by Civil Code section 5145. The demurrer to the second cause of action will be overruled for the same reasons as the demurrer to the declaratory relief claim.

Doe’s third cause of action is for an injunction related to enforcing the CC&Rs as it relates to common areas. (SAC, ¶¶ 160-161 & p. 41.) Demurring defendants demur to this cause of action on the grounds that injunctive relief is not a cause of action and that the preliminary injunction was denied by the Court.

“A permanent injunction is an equitable remedy, not a cause of action, and thus it is attendant to an underlying cause of action.” (County of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 973.) The title of the cause of action is not dispositive. “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th at p. 38.) The text of the cause of action demonstrates that the injunction sought is a permanent injunction to enforce property rights under the CC&Rs. (SAC, ¶¶ 160-161.) An injunction is an available remedy in an action to enforce CC&Rs. (See Ryland Mews Homeowners Assn. v. Munoz (2015) 234 Cal.App.4th 705, 707.) The cause of action is not improper because it is labeled as an action for an injunction.

“The granting or denying of a preliminary injunction does not constitute an adjudication of the ultimate rights in controversy.” (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286.) The Court’s ruling on the preliminary injunction is not a ruling on the issue of whether Doe states a cause of action by which a permanent injunction or other remedy may be appropriately granted. The denial of the preliminary injunction is not relevant to the demurrer. The demurrer to the third cause of action will be overruled.

(I) Leave to Amend

For the same reasons discussed with respect to the other demurrer, the Court will grant leave to amend as to all causes of action for which the Court has sustained the demurrer of the demurring defendants.

(4) Motion of Hedgpeth and Rosenbaum to Strike Portions of the SAC

Hedgpeth and Rosenbaum move to strike dozens of lines and paragraphs from the SAC. One category of items sought to be stricken are titles which include the moving parties as defendants in causes of action. This part of the motion is denied because it is either moot because the demurrer was sustained or improper because the demurrer was overruled.

Another category of items sought to be stricken is prayers for relief for declaratory and injunctive relief. The motion is denied as to these items for the same reason that the demurrers to the corresponding causes of action have been overruled.

Another category of items sought to be stricken is claims for damages under Civil Code section 5105. The prayer for $1,500 damages is not supported against the moving defendants. The motion to strike will be granted because, unlike the other motion to strike addressed herein, there are claims asserted against these moving parties to which these prayers could potentially apply.

Another category of items sought to be stricken is paragraphs that were the subject of a special motion to strike of other parties. The special motion to strike was granted as to those parties only. The motion to strike will be denied as to these moving parties on that basis.

The final category of items sought to be stricken is allegations and prayers for punitive damages. “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

The allegations of malice, oppression, or fraud are not sufficiently specific as to these moving parties to support a claim for punitive damages. The motion to strike will be granted as to these allegations.

For the same reasons discussed above, the motion to strike will be granted with leave to amend.