19-CIV-00016 JOHN R. BELL, ET AL. VS. NINA MCNITZKY, ET AL.

JOHN R. BELL NINA MCNITZKY
FRANCOIS X. SORBA MERCEDES SALEM

CROSS-DEFENDANTS COMMUNITY MANAGEMENT SERVICES’ (CMS) AND SUNRISE HOMES ASSOCIATION’S DEMURRER TO CROSS-COMPLAINANT NINA MCNITZKY’S FIRST AMENDED COMPLAINT TENTATIVE RULING:

Cross-Defendants Community Management Services’ (CMS) and Sunrise Homes Association’s demurrer to Cross-Complainant Nina McNitzky’s first amended complaint is SUSTAINED, in part, and OVERRULED, in part, for the reasons set forth below.

Cross-Defendants contend that McNitzky has failed to plead facts supporting her claims for indemnity, contribution, and apportionment of fault. According to Cross-Defendants,

Ms. McNitzky has failed to state any facts that the HOA or CMS is liable for the same harm for which she is liable on the Complaint, i.e. that the harm caused by her alleged trespass, nuisance, negligence, and breach of covenant is any way attributable to the HOA or CMS. She solely alleges that the HOA did not investigate whether the glare existed as a result of the solar panels. (Amended CrossComplaint, p. 6, lines 9-11.)

MPA, p.5. Indeed, McNitzky’s FAC does not state any facts with respect to Cross-Defendant CMS.

With respect to Cross-Defendant Sunrise HOA, however, McNitzky alleges that the HOA approved installation of the subject solar panels and that the approval contributed to the damages alleged by Plaintiffs. FAC, ¶¶ 12-15, 39, 42. Accordingly, McNitzky has adequately alleged the elements of a cause of action for indemnity; i.e. (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is equitably responsible. Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 217. Likewise, the allegations are sufficient to state claims for contribution and apportionment of fault. See CACI 406.

In their reply, Cross-Defendants cite Sands v. Walnut Gardens Condominium Association Inc. (2019) 35 Cal.App.5th 174, 177-178, for the proposition that a homeowners association owes no independent duty arising from tort law outside of the association’s covenants, conditions, and restrictions. The court’s opinion actually states, however, that “Outside the covenants, conditions, and restrictions, the association had no independent duty as to the pipes and roof arising from tort law.” Id. Cross-Defendants provide no discussion of the facts in Sands. Contrary to CrossDefendants’ assertion, California courts have held that homeowners associations can be liable to their members for negligence. See, e.g., White v. Cox, 17 Cal. App. 3d 824 (2d Dist. 1971) (liability for negligence in failing to maintain common areas); Frances T. v. Village Green Owners Assn., 42 Cal. 3d 490, 229 Cal. Rptr. 456 (1986) (liability for failure to provide adequate lighting to prevent foreseeable crime). Further, Plaintiffs have asserted a cause of action for breach of covenant against McNitsky. Cross-Defendants do not explain how their claim that the HOA owes no duty arising from tort law applies to the claims for indemnity and contribution relating to the cause of action for breach of covenant. As a result, Cross-Defendants’ argument that the HOA owes no duty independent of any contract is unpersuasive.

For the foregoing reasons, Cross-Defendant Sunrise HOA’s demurrer to McNitzky’s first through fourth causes of action for indemnity and contribution is OVERRULED. Cross-Defendant CMS’ demurrer to the first through fourth causes of action is SUSTAINED with leave to amend.

Cross-Defendants also demur to McNitzky’s fifth cause of action for declaratory relief. McNitzsky does not present any argument or authority in response to the demurrer to this cause of action. As a result, Cross-Defendants’ demurrer to this cause of action is SUSTAINED without leave to amend.

McNitzky shall file any amended complaint within 15 days of notice of this order.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Cross-Defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

19-CIV-00016 JOHN R. BELL, ET AL. VS. NINA MCNITZKY, ET AL

JOHN R. BELL NINA MCNITZKY
FRANCOIS X. SORBA MERCEDES SALEM

CROSS-DEFENDANTS COMMUNITY MANAGEMENT SERVICES’ (CMS) AND SUNRISE HOMES ASSOCIATION’S MOTION TO STRIKE THE PRAYER FOR PUNITIVE DAMAGES AND ATTORNEY’S FEES IN CROSS-COMPLAINANT NINA MCNITZKY’S FIRST AMENDED COMPLAINT TENTATIVE RULING:

Cross-Defendants Community Management Services’ (CMS) and Sunrise Homes Association’s motion to strike the prayer for punitive damages and attorney’s fees in CrossComplainant Nina McNitzky’s first amended complaint is GRANTED with leave to amend.

With respect to the prayer for attorney’s fees, McNitzky has not alleged any contractual or statutory basis for attorney’s fees. Although McNitsky argues she is entitled to fees pursuant to CCP § 1021.6, she has not alleged this basis for attorney’s fees in the first amended complaint. Accordingly, the motion to strike the prayer for attorney’s fees is granted with leave to amend the complaint to allege the statutory basis for fees.

With respect to the prayer for punitive damages, McNitzky has alleged no facts demonstrating malice, fraud, or oppression. Because the complaint does not show on its face that it is incapable of amendment, however, the motion is granted with leave to amend to add facts supporting the claim for punitive damages to the extent such facts exist.

McNitzky shall file any amended complaint within 15 days of notice of this order.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Cross-Defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.