Case Name: Nguyen, et al. v. Cooley, et al.
Case No.: 17-CV-320527

This mandamus action to determine the validity of a corporate election was initiated by petitioners 2121 Investments, LLC (“2121”), its manager Jessie Duong (“Duong”), and Long Nguyen (“Nguyen”) (collectively “Petitioners”) against respondents Scott Cooley (“Cooley”), the Scott M. Cooley 1997 Separate Property Trust (the “Trust”), Erika Cervantes (“Cervantes”), Brank Bacelic (“Bacelic”), and South Tenth Business Center Unit Owners Association (the “Association”) (collectively “Respondents”).

According to the petition for writ of mandate (“Petition”), Nguyen and his wife, Terry Hu (“Hu”), 2121, and Cooley own certain property that is governed by the Association and subject to a declaration of covenants and restrictions establishing a plan for condominium ownership (“CCRs”). (Petition, ¶¶ 1, 9.)

The Association conducts an annual meeting in accordance with its bylaws. (Petition, ¶ 23.) Cooley sent notice that the 2017 annual meeting was scheduled for August 28, 2017. (Ibid.) The notice stated there would be an election for the board of directors, and the following nominations were made: Cooley for president and treasurer, Cervantes for secretary, and Bacelic for vice president. (Id. at ¶ 24.) Cervantes and Bacelic were Cooley’s employees and were not members of the Association because they do not own any property governed by it. (Id. at ¶¶ 6-8.) Prior to the meeting, Cooley purported to unilaterally continue it to October 2, 2017. (Id. at ¶ 26.) Despite this, Nguyen and others attended the meeting originally scheduled for August 28. (Ibid.) At that meeting, Pho moved to put on the agenda for the next meeting the issue that Cervantes and Bacelic were board of director candidates even though they were not Association members. (Id. at ¶ 30.) Cooley responded that Pho was “bashing” him and stated any issues with the board members could be addressed during the upcoming election. (Ibid.) The meeting was then continued to October 2. (Id. at ¶ 32.)

The October 2 meeting was attended by Cooley, Hu, Duong, Nguyen, Pho, Cervantes, Bacelic, and two members of the property management company. (Petition, ¶ 34.) At the meeting, Cooley nominated himself, Cervantes, and Bacelic to serve as directors, and Nguyen, Duong, and Hu nominated Nguyen and Duong. (Id. at ¶ 35.) After the votes were tallied, Cooley maintained that he, Cervantes, and Bacelic were directors. (Ibid.) However, the remaining members objected to this declaration and insisted Cervantes and Bacelic could not be directors because they were not Association members. (Ibid.) As such, they maintained Cooley, Nguyen, and Duong were now directors. (Ibid.) Cooley sought to adjourn the meeting and invalidate the election results. (Ibid.) The new directors, Duong and Nguyen, did not agree to adjourn the election or meeting and carried out more board of directors business. (Ibid.) Nguyen and Duong elected Duong as chairman of the board of directors, Nguyen as president of the Association, and Hu as secretary of the Association. (Ibid.) The board of directors then voted on and passed several business matters. (Ibid.)
After the October 2 meeting, Cooley directed his employees not to provide the Association’s records to its members, including the Association’s financial records and annual meeting minutes. (Petition, ¶¶ 36-39.) Cooley also ignored the business matters voted on during the meeting and, apparently refusing to recognize Nguyen and Duong as directors, attempted to unilaterally notice a board of directors meeting. (Id. at ¶ 41.)

Petitioners were eventually able to review the Association’s records, which revealed Cooley, represented by attorney Michael Thomas (“Thomas”), initiated a lawsuit in the Association’s name to financially benefit himself in 2014 (“Union Pacific Action”). (Petition, ¶ 42.) That action concerned a property dispute between the Association and Union Pacific Railroad Company (“Union Pacific”). Union Pacific apparently owned a small piece of property (“Disputed Property”) to which the Association claimed it was entitled. (Id. at ¶ 46.) The parties entered into a settlement agreement pursuant to which Cooley personally acquired the Disputed Property, even though the dispute was between the Association and Union Pacific. (Ibid.) Cooley then prohibited the Association’s members and guests from accessing the Disputed Property—even though they had been routinely doing so prior to the Union Pacific Action—and erected a fence sectioning it off. (Ibid.)

Cooley has otherwise acted improperly by: (1) running electricity from the Association’s building to the Disputed Property without notifying the Association, Pacific Gas and Electric, or the City of San Jose; (2) allowing his tenant living on the Disputed Property to park in the Association’s parking lot and driveway; (3) failing to fix nonoperational security cameras; (4) improperly taking over a lease Hu previously had with Union Pacific; (5) failing to produce records of his payments to Thomas made in connection with the Union Pacific Action; (6) not imposing fines on his own tenants for violating the CCRs; (7) imposing baseless fines on other members; (8) denying a member the right to place business signs solely because it is a marijuana collective; and (9) modifying the CCRs for his own personal gain. (Petition, ¶¶ 46, 53.)

Petitioners request the Court issue a writ of mandate: (1) commanding Respondents to recognize Nguyen and Duong as directors effective October 2, 2017; (2) prohibiting Cervantes and Bacelic from asserting they are directors; and (3) directing Respondents to comply with the determinations and votes of the board of directors, including those matters voted upon on October 2, 2017.

Respondents presently demur to the Petition.

I. Requests for Judicial Notice

Respondents filed a request for judicial notice in support of their demurrer. Petitioners also filed a request for judicial notice in support of their opposition.

Respondents request judicial notice of eight documents, including court records filed in South Tenth Business Center Unit Owners Association v. Nguyen, et al., Santa Clara Superior Court Case No. 14-CV-267850 (“2014 Action”) and numerous discovery-related documents served in connection with this action. The court records are proper subjects for judicial notice pursuant to Evidence Code section 452, subdivision (d), which authorizes courts to judicially notice court records. In addition, they are relevant to issues raised herein. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 (“Lockyer”) [any matter to be judicially noticed must be relevant to a material issue].) On the other hand, the remaining discovery-related documents are not helpful or relevant to any material issue raised by the demurrer. As such, the only documents properly subject to judicial notice are the court records. The request for judicial notice is thus GRANTED as to the court records and is otherwise DENIED.
Turning to Petitioners’ request, they seek judicial notice of numerous documents and facts. Petitioners first seek judicial notice of this case’s court docket, which is a proper subject of judicial notice under Evidence Code section 452, subdivision (d) and is relevant to an issue raised herein. (See Lockyer, supra, 24 Cal.4th at p. 422, fn. 2.)

Petitioners next seek judicial notice of two e-mails exchanged between their counsel and Thomas pursuant to Evidence Code section 452, subdivision (h), which authorizes courts to judicially notice “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” This provision is “intended to cover facts which are not reasonably subject to dispute and are easily verified,” such as “facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter.” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) An e-mail between parties clearly does not fall within that ambit. (See Minor v. FedEx Office and Print Services, Inc. (N.D. Cal. 2015) 78 F.Supp.3d 1021, 1028 [denying judicial notice of e-mails based on the federal equivalent of section 452, subdivision (h)]; Warner v. Tinder Inc. (C.D. Cal. 2015) 105 F.Supp.3d 1083, 1089 [same].) In addition, the e-mails are not relevant to any material issue addressed herein. (See Lockyer, supra, 24 Cal.4th at p. 422, fn. 2.) Thus, while the court docket is a proper subject of judicial notice, the e-mails are not.

Petitioners also seek judicial notice of the following fourteen facts: (1) the Petition was filed on December 14, 2017; (2) Petitioners served notice of a related case on December 29, 2017; (3) Thomas filed an ex parte application on January 31, 2018; (4) Thomas substituted out as counsel on February 26, 2018; (5) Respondents’ new counsel appeared at the February 27, 2018 trial setting conference where she requested, and the Court allowed, the calendaring of the instant demurrer; (6) Respondents filed an answer on March 6, 2018; (7) Respondents filed this demurrer on March 8, 2018; (8) the proof of service for the demurrer reflects it was served by mail on March 6, 2018; (9) the 2014 Action was initiated on July 11, 2014; (10) the October 2, 2017 election is not mentioned in the complaint filed in 2014 Action; (11) Nguyen and Thuy Dang filed a cross-complaint in connection with the 2014 Action on April 13, 2017; (12) the October 2, 2017 election is not mentioned in that cross-complaint; (13) Thomas wrote two e-mails to Respondents’ counsel in which he stated Petitioners should initiate this action if they are unhappy with the election results; and (14) the prayer for relief in the Petition requests the three forms of relief stated therein.
Facts 1, 5, and 6-12 are proper subjects of judicial notice as they may be ascertained from the court docket and Respondents’ judicially noticed court records, and are relevant to material issues raised herein. (See Evid. Code, § 452, subd. (d); Lockyer, supra, 24 Cal.4th at p. 422, fn. 2.) In contrast, facts 2-4 and 13-14 are not relevant or helpful to a determination of any material issue. (See Lockyer, supra, 24 Cal.4th at p. 422, fn. 2.) In addition, fact 13 may not be judicially noticed pursuant to Evidence Code section 452, subdivision (h) for the reasons discussed above regarding e-mails. Further, relative to only fact 14, it is unnecessary for the court to take judicial notice the prayer for relief since it is found within the pleading under review. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.)

In light of the above, Petitioners’ request for judicial notice is GRANTED as to the court docket and facts 1 and 5-12 and DENIED as to the e-mails and facts 2-4 and 13-14.

II. Preliminary Matters

A. Timeliness of Demurrer
Petitioners argue the demurrer is untimely for two reasons and suggest it should be overruled on those bases.
Petitioners first assert the demurrer is untimely because it was filed and served more than 30 days after the Petition was served. A respondent shall answer or otherwise respond within 30 days after service of a petition where, as here, the petitioner does not also seek an alternative writ and there is no administrative record required to be filed. (Code Civ. Proc., § 1089.5.) Here, the demurrer is untimely because it was served on March 6, 2018, over thirty days after the Petition was served on January 18, 2018. With that said, a court has discretion to consider an untimely demurrer. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) In fact, at a trial setting conference on February 27, 2018, which occurred after the statutorily-mandated time to respond, the Court expressly authorized Respondents to file this demurrer. Consequently, the Court will not overrule the demurrer because it was filed and served more than 30 days after the Petition was served.
Petitioners also contend the demurrer is improper because it was filed and served on March 8, after Respondents filed an answer on March 6. Code of Civil Procedure section 430.30 provides that a party may respond to a complaint by demurrer or answer and explicitly permits a party to file both simultaneously. (Code Civ. Proc., § 430.30.) Further, Code of Civil Procedure section 472a, subdivision (a) expressly provides that a demurrer is not waived by filing an answer at the same time. These statutory provisions thus contemplate that a demurrer is waived if the demurring party first files an answer.
Here, while the court docket reflects Respondents filed the demurrer two days after their answer, this anomaly is explained in reply. Respondents clarify that they received permission to calendar their demurrer during a trial setting conference and thereafter attempted to file both the answer and demurrer on March 6. However, a court clerk rejected the filing of the demurrer on the basis Respondents had not properly reserved a court date. Respondents thereafter resolved the issue with the court clerk, directing him or her to the court’s minute order from the trial setting conference, which reflects they were authorized to set a March 29 hearing date. Because the demurrer’s late filing was apparently due to a clerical error, the Court will treat the demurrer as though it was concurrently filed with the answer. As such, the demurrer was not waived.
B. Sufficiency of Notice
Petitioners contend they did not receive timely notice of the demurrer because it was not filed and served in accordance with Code of Civil Procedure section 1005, subdivision (b), which provides that a moving party must file and serve the moving papers 16 court days prior to the hearing date, plus an additional 5 calendar days if the papers are served by mail. Here, the hearing date is March 29, 2018 and the papers were served by mail; thus the papers should have been filed and served by March 2, 2018. The moving papers were untimely because they were filed and served on March 6.
With that said, the insufficient notice is not a basis for overruling the demurrer. When a party opposes a motion on the ground of insufficient notice but otherwise addresses the merits and does not claim any prejudice, the party waives any defect or irregularity. (Carlton v. Quint (2007) 77 Cal.App.4th 690, 697-698.) Petitioners waived any defect in notice by addressing the merits of the demurrer in opposition and did not appear to be prejudiced by the insufficient notice.

C. Meet and Confer
Prior to filing a demurrer, the demurring party must meet and confer with the party who filed the challenged pleading to determine whether an agreement can be reached that would resolve the objections to the pleading. (Code Civ. Proc., § 430.41, subd. (a).) If an agreement cannot be reached and a demurrer is filed, the demurring party must file a declaration stating the means by which he or she met and conferred with the party who filed the pleading. (Code Civ. Proc., § 430.41, subd. (a)(3).)
Here, the demurrer is not accompanied by a meet and confer declaration in accordance with Code of Civil Procedure section 430.41. As such, the Court cannot ascertain whether the parties met and conferred or Respondents did not engage in any meet and confer efforts. In either event, Respondents failed to file the required declaration. Because a demurrer may not be overruled for insufficient meet and confer efforts (Code Civ. Proc., § 430.41, subd. (a)(4)), the Court will reach the demurrer on its merits. Respondents are admonished to comply with the meet and confer requirement in the future.

D. Grounds for Demurrer
Respondents identify the following three grounds for their demurrer: (1) another action is pending between the same parties; (2) a “right to abatement exists under the judicial rule of exclusive concurrent jurisdiction”; and (3) “Petitioners failed to comply with Corporations Code § 7616 Judicial determination of validity of election or appointment which provides the proper procedural mechanism for challenging board election results.” (Dem., p. 2:7-12, original italics.)
The statutory grounds for demurrer are enumerated in Code of Civil Procedure section 430.10. While another action pending is a statutory ground for demurrer (see Code Civ. Proc., § 430.10, subd. (c)), the latter two purported grounds for demurrer are not explicitly set forth in the statute.
The second ground identified by Respondents is actually an argument that can be asserted in connection with the ground of another action pending. (See California Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104, 109 [discussing rule of exclusive concurrent jurisdiction in connection with demurrer brought on ground that another action was pending].) As to the third ground identified by Respondents, they presumably intended to demur on the ground of failure to state sufficient facts to constitute a cause of action (see Code Civ. Proc., § 430.10, subd. (e)), as they argue Petitioners did not follow the procedure for challenging an election as set forth in the Corporations Code (see Shahin v. Wawro (1982) 136 Cal.App.3d 749, 753 [evaluating demurrer to a cause of action to determine the validity of a corporate election on the ground of failure to state sufficient facts]). The Court will therefore construe the demurrer as being brought on the grounds of another action pending and failure to state sufficient facts.

III. Merits of the Demurrer

A. Another Action Pending
Respondents first assert there is another action pending such that this action should be abated because it involves the same facts and parties as the cross-complaint filed in the 2014 Action (“Cross-Complaint”). For context, the Association initiated the 2014 Action against Nguyen, Thuy Dang, 2121, Nahn Tran, and YB Fire, LLC because they were purportedly operating marijuana dispensaries in violation of the CCRs. In 2017, Nguyen, Thuy Dang, Nahn Tran, and YB Fire, Inc. filed the Cross-Complaint against the Association and Cooley for breach of fiduciary duty and breach of the CCRs.

A petition for writ of mandamus may be abated if there is another action pending between the same parties involving the same causes of action. (W.R. Grace & Co. v. California Employment Commission (1944) 24 Cal.2d 720, 726 (“W.R. Grace”).) If the second action is abated, the court may not order dismissal, but instead stays the proceeding pending termination of the first action. (Childs v. Eltinge (1973) 29 Cal.App.3d 843, 848.) “A demurrer raising this objection to a second action between the same parties ‘is strictly limited so that . . . the defendant must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case.’ [Citation.]” (Pitts v. City of Sacramento (2006) 138 Cal App 4th 853, 856, italics omitted.) Here, Respondents do not show the two actions involve identical parties or causes of action.
The 2014 Action and the instant action do not involve identical parties. The 2014 Action involved the Association, Nguyen, Thuy Dang, 2121, Nahn Tran, Scott Cooley, and YB Fire, Inc.; Duong, the Trust, Cervantes, and Bacelic were not included in that action.

Moreover, even if the parties were identical, the pleadings do not reflect the two actions involve identical causes of action. To determine whether two proceedings involve identical causes of action, California courts apply the primary rights theory. (Merchants Fire Assur. Corp. of New York v. Retail Credit Co. (1962) 206 Cal.App.2d 55, 63 [discussing primary rights relative to abatement argument]; Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 792 (“Boeken”).) “The primary right theory . . . does not concern itself with theories of liability—such as undue influence—but with the plaintiff’s underlying right to be free from the injury itself[.]” (Crowley v. Katleman (1994) 8 Cal.4th 666, 683, original italics.) “[T]he cause of action is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief. . . . When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Boeken, supra, 48 Cal.4th at p. 798, internal citations, quotation marks, and emphasis omitted.)

Respondents assert this action involves the same primary rights as the Cross-Complaint, specifically Cooley’s breach of fiduciary duty and breach of the CCRs. Respondents do not further elaborate on how the same primary rights are implicated.

The Cross-Complaint seeks redress for Cooley’s breaches of fiduciary duty, asserting causes of action for breach of fiduciary duty, declaratory relief, cancellation of instruments, nuisance/breach of CCRs, and removal of director. The breach of fiduciary duty cause of action is predicated on Cooley’s purported: (1) payment of the Association’s funds for his own benefit; (2) selective enforcement of the CCRs; (3) amendment of the CCRs for his own benefit; and (4) attempt to amend the Association’s rules and regulations for his own benefit. (RJN, Exh. B, ¶ 13.) The declaratory relief and cancellation causes of action seek to void the amended CCRs. (Id. at ¶¶ 21, 30.) The nuisance/breach of CCRs cause of action alleges Cooley violated the CCRs by erecting certain signs, controlling certain parking spaces, and engaging in prohibited uses like salvaging junk. (Id. at ¶ 33.) The removal of director cause of action seeks to remove Cooley as director based on his breach of fiduciary duty and abuse of authority. (Id. at ¶ 40.) Thus, the gravamen of these causes of action is Cooley’s purported self-dealing. In contrast, the Petition is based on the outcome of the October 2, 2017 election. The Cross-Complaint does not concern the election or the actions leading up to it; in fact, the pleading could not be predicated on those events as the election occurred after it was filed.

While the Petition refers to some of the same events as the Cross-Complaint, such as Cooley’s alleged self-serving enforcement of the CCRs, it appears to be solely for background information. The alleged harm suffered is distinct in the two actions: the harm suffered in the Cross-Complaint stems from Cooley’s self-dealing whereas the harm here is predicated on the refusal to recognize the validity of the election results. To be clear, there is no relief sought here concerning Cooley’s purported breaches of fiduciary duty or breach of the CCRs. Respondents ignore the distinction between the alleged harm suffered in the two actions and instead improperly focus on the commonality of the underlying facts. (See Boeken, supra, 48 Cal.4th at p. 798 [focus of analysis is on harm suffered].) Contrary to Respondents’ argument, the pleading does not reflect the two actions involve the same primary rights. As such, Respondents’ argument that the demurrer should be stayed on the basis there is another action pending is without merit.
Next, Respondents argue this action should be abated pursuant to the judicial rule of exclusive concurrent jurisdiction. That rule is related to the statutory plea in abatement, but
“has been interpreted and applied more expansively, and therefore may apply where the narrow grounds required for a statutory plea of abatement do not exist.” (Plant Insulation Co. v. Fibreboard Corp., supra, 224 Cal.App.3d at p. 788.) “Unlike the statutory plea of abatement, the rule of exclusive concurrent jurisdiction does not require absolute identity of parties, causes of action or remedies.” (Ibid.) Even so, “the issues in the two proceedings must be substantially the same and the individual suits must have the potential to result in conflicting judgments” for the rule to apply. (County of Siskiyou v. Superior Court (2013) 217 Cal.App.4th 83, 91.)

While this doctrine is less restrictive than the statutory plea in abatement, it is also inapplicable here. The doctrine provides that “when two superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.’” (California Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104, 109, italics added.) Thus, the doctrine is only implicated when separate courts each have jurisdiction over the action; it is inapplicable when two similar civil suits are filed in the same court, which is the case here. Accordingly, there is no basis for sustaining the demurrer based on the doctrine of concurrent exclusive jurisdiction.

In light of the above, the demurrer on the ground that another action pending is OVERRULED.

B. Failure to State Sufficient Facts
Respondents first argue Petitioners fail to state a claim because they failed to comply with Corporations Code section 7616 (“Section 7616”), which provides in relevant part that “[u]pon the filing of an action therefor by any director or member or by any person who had the right to vote in the election at issue, the superior court of the proper county shall determine the validity of any election or appointment of any director of any corporation.”
As an initial matter, the Court observes Section 7616 governs nonprofit corporate elections, such as the one at issue here. While there is scant case law discussing the application of Section 7616, there is ample case law addressing substantially similar statutory provisions governing other corporate elections, such as Corporations Code section 709, which discusses general corporate elections. Because the language of the statutes are materially indistinguishable, the Court will refer to case law discussing section 709 in its analysis.

Turning to Respondents’ argument, it is utterly unclear and undeveloped. Respondents first assert the Petition “is the improper procedural vehicle for challenging the election results.” (Mem. Ps. & As., p. 11:15-16.) They then cite the three forms of relief sought in the Petition, i.e. commanding them to recognize Nguyen and Duong as directors, prohibiting Cervantes and Bacelic from asserting they are directors, and directing them to comply with the matters voted upon at the October 2, 2017 meeting. Respondents do not further elaborate. Though there is no discussion of the point, Respondents presumably consider the relief to be improper because they quote it. While unclear, it appears they intended to argue this relief is outside the scope of a determination of the validity of an election under Section 7616. To the extent Respondents intended to argue as much, it is not a basis for sustaining the demurrer.

Section 7616 expressly authorizes a court to determine the identities of the directors and “direct such other relief as may be just and proper.” (Corp. Code, § 7616, subd. (d).) “An action to determine the validity of a corporation shareholder’s election is equitable in nature and the court will administer complete relief and adjust the case in all of its branches in order to prevent multiplicity of actions.” (Edward Sidebotham & Son, Inc. v. Chandler (1960) 183 Cal.App.2d 823, 831–832 (“Chandler”).) For example, if a challenged vote results in the removal of a director, the court may order the removal of that individual as director and bar him or her from election for a specified period of time. (Ibid.)

Here, the first two forms of relief sought—the affirmation of Duong and Nguyen as directors and the prohibition on recognizing Cervantes and Bacelic as directors—may be properly requested in connection with a Section 7616 action because they directly relate to the outcome of the election. (See Chandler, supra, 183 Cal.App.2d at pp. 831–832.) They therefore fall within Section 7616’s ambit. While those requests for relief relate to the election, the third request for relief—an order directing Respondents to comply with the determinations and votes at the October 2, 2017 meeting—does not. Although Section 7616 authorizes ancillary relief, it must be related to the validity of the disputed election. (See Shahin v. Wawro (1982) 136 Cal.App.3d 749, 754.) The direction that Respondents comply with the other matters voted upon at the same meeting does not concern the validity of the election itself. With that said, the alleged noncompliance with matters voted upon at the October 2, 2017 meeting is only one of three bases for this action, and a demurrer cannot lie to a portion of a cause of action. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) As such, the demurrer cannot be sustained on the basis that the relief sought is unrelated to the validity of the election.

Respondents also appear to argue Petitioners must explicitly cite Section 7616 in the Petition in order to effectively bring an action pursuant to that statute. It is not apparent why Respondents think this pleading standard exists. Section 7616 does not contain such a requirement. Further, Respondents cite no authority supporting that proposition and the Court is not aware of any. Accordingly, Respondents’ argument is unsubstantiated.

Last, Respondents maintain Petitioners fail to state a cause of action under Section 7616 because they did not comply with Civil Code section 5930, subdivision (a) (“Section 5930”), which provides that “[a]n association or a member may not file an enforcement action in the superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution pursuant to this article.”

Respondents fail to adequately support their argument; they simply state Petitioners did not comply with Section 5930 without providing any further explanation or legal authority. This is particularly problematic as it is not apparent Section 5930 applies in the first instance. The statute is part of the Davis-Stirling Common Interest Development Act (“Davis-Stirling Act”), which only applies to residential developments. (See Civ. Code, § 6500, comment.) The pleading suggests this development is a commercial or industrial common interest development, not a residential development. For example, the Petition alleges multiple units are occupied by businesses, i.e. 2121 is a dispensary. (Petition, ¶ 35.) Moreover, the CCRs, which are incorporated by reference into the pleading and judicially noticed pursuant to Respondents’ request , identify the property as containing “commercial/industrial condominiums.” (Resp. RJN, Exh. B.)

The fact the pleading suggests the development is commercial or industrial renders Respondents’ argument defective because the Davis-Stirling Act does not apply to commercial or industrial developments. Instead, commercial or industrial developments are governed by the Commercial and Industrial Common Interest Development Act (“Commercial and Industrial Act”). Prior to 2012, the Davis-Stirling Act applied to both residential and commercial or industrial common interest developments. (Sen. Rules Com., Off. Of Sen. Floor Analyses, Bill Analysis on Sen. Bill No. 752, (2013-2014 Regular Sess.), p. 2.) When the Davis-Stirling Act was recodified in 2012, commercial and industrial developments were removed from its scope in order to separate the laws governing the different types of developments. (Id. at p. 7.) While the two acts are similar in many respects, the Commercial and Industrial Act does not have a provision requiring a party to partake in alternative dispute resolution prior to filing an action. In fact, “[t]he requirement for the association to adopt a fair, reasonable, and expeditious procedure for resolving disputes” set forth in the Davis-Stirling Act was specifically excluded from the Commercial and Industrial Act. (Id. at p. 4.)

Because the pleading does not reflect the property is governed by the Davis-Stirling Act, Respondents’ argument that Petitioners must comply with Section 5390 is unsubstantiated. As such, the demurrer cannot be sustained on the basis Petitioners failed to comply with that provision.

In light of the above, the demurrer on the ground of failure to state sufficient facts to constitute a cause of action is OVERRULED.