Case Number: BC465483    Hearing Date: September 04, 2014    Dept: 1

#2 – Clay v. Skyline Owners Association, et al. (BC 465 483)

Plaintiff Pauline Clay has moved this court, after the fact, to issue a “pre-filing” order granting her leave nunc pro tunc to file or, more precisely, to continue prosecuting this action, which had been mistakenly filed on July 14, 2011 by the court clerk without requiring that Plaintiff Clay first obtain a pre-filing order pursuant to CCP § 391.7. This present motion originally came on for hearing on July 24, 2014 and was continued to August 14, 2014 and then to this date to allow the parties to file further briefing on the issue of this case’s merit, specifically as to how the requests for admission deemed admitted by Plaintiff Clay in a May 22, 2013 court order impact the case’s merit. Concurrent with filing the present motion, Plaintiff Clay had also moved the court, pursuant to CCP § 391.8, to remove her from the Judicial Council’s Vexatious Litigant List, which motion was denied outright at the July 24, 2014 hearing.

Plaintiff’s initial supplemental briefing, filed July 31, 2014, consists of a request that this court take judicial notice inter alia of the pleadings, requests for admission, and Plaintiff’s responses to the disputed requests for admission, plus a brief explaining why those responses do not preclude her from proceeding with this action. Plaintiff argues that the subject 13 requests for admission were propounded on January 2, 2013 and referred to causes of action not pleaded in the original July 14, 2011 complaint, namely causes of action for Gross Negligence, Intentional Tort, Intentional Infliction of Emotion, Mental and Physical Distress, and Exemplary Damages, that were set forth in the complaint’s caption but not actually pleaded. Instead, ¶ 30 of the original complaint alleged, “Upon amendment of this complaint,” those four additional causes of action “shall be included.” Based on this, Plaintiff argues that any “admission” by Plaintiff that Defendant Skyline Owners Association was not liable for any of these causes of action – matters deemed admitted by Plaintiff due to her failure to timely respond – was in fact irrelevant because Plaintiff had not in fact pleaded those causes of action in her original complaint. Plaintiff further argues that deeming these matters as admitted essentially became a moot ruling when Plaintiff later filed a First Amended Complaint (filed April 16, 2013) and a Second Amended Complaint (filed August 12, 2013), because the requests for admission challenged causes of action purportedly alleged in the original complaint, which by function of law were superseded by the amended pleadings. Plaintiff cites no authority for the propositions that (1) requests for admission cannot challenge causes of action that are identified in a pleading’s caption as current causes of action but within the pleading are only identified as to-be-added causes of action, or that (2) requests for admission are made moot upon the filing of an amended pleading.

Plaintiff also argues that the requests for admission as to injury from mold and as to giving notice to Defendant Skyline that the property contained mold are irrelevant because the original complaint did not contain these allegations, and that these admissions do not controvert the ¶ 38 allegations that Skyline ignored the Environmental Health Agency’s citation to perform mold abatement, which would constitute a basis for damages. Plaintiff states that the request for admission as to giving notice to Defendant Skyline of leaks is irrelevant, because a “leak” is defined in the requests as an intrusion of water from the exterior, or an uncontrolled release of water from an interior source such as a water pipe or toilet, and Plaintiff never alleged this; instead, she alleged sewage backups and six floods, of which Defendant Skyline’s building security guards were aware and which they documented, which would constitute a basis for damages. Also, by their conduct in paying to clean and repair Plaintiff’s unit, Defendant Skyline admitted their liability for the fourth, fifth, and sixth floods. Plaintiff points to the fact that Skyline never asserted that the deemed admissions were grounds for demurrer or precluded amending the pleadings. Finally, Plaintiff argues she could move to withdraw the admissions pursuant to CCP § 2033.300 because the requests were served on Plaintiff at her Skyline address where she was not residing at the time and thus failure to timely respond was excusable neglect. The Court notes that although Plaintiff sought judicial notice of the requests for admission at Exhibit B, there was no copy of the requests for admission submitted at Exhibit B as indicated.

Defendant Skyline’s initial supplemental briefing, filed August 7, 2014, consists of a request that this court take judicial notice inter alia of the requests for admission, motion to deem the requests admitted and ruling granting the motion, along with a brief explaining why Plaintiff’s admissions should prevent the continuing litigation. Defendant Skyline argued that the requests were all deemed admitted on May 22, 2013, after the First Amended Complaint was filed, and the fact that Plaintiff filed amended pleadings does not negate these admissions. Defendant Skyline argues that the original complaint indicated the causes of action that were forthcoming, and therefore Plaintiff is bound by her deemed admission that Defendant Skyline was not liable for them. Defendant Skyline also notes that Plaintiff failed to provide authority for this asserted argument. Defendant Skyline further argues that Plaintiff has waived any objections to the admissions and should not be permitted to withdraw or amend the admissions, in particular because both the requests for admission and the motion to deem the responses admitted were in fact served on Plaintiff at both her Skyline address and her other residence address. See Reply Exhibits. Defendant Skyline argues that a judicial officer would not have been able to consider discovery responses in conjunction with ruling on a demurrer, and it was not up to Defendant Skyline to either advise the then-pro per Plaintiff of the legal effect of failing to respond or to advise Plaintiff’s counsel of the status of the case, namely the fact of the admissions. Defendant Skyline argues that Plaintiff cannot proceed with the litigation because these admissions prove fatal to her case, since any remaining cause of action (for economic duress and monies had and received) are necessarily based on those property damage and personal injury causes of action which fail due to the admissions, and these admissions may be used by all parties to the action. Swedberg v. Christiana Community Builders (1985) 175 Cal. App. 3d 138, 143-44. Defendant Skyline is not responsible for repairing a condition of which it had no notice, and Plaintiff has admitted that she did not notify Defendant Skyline of the leaks/flooding. Plaintiff admitted Defendant Skyline had no liability on the water intrusion and resultant mold, so Defendant Skyline bore no responsibility to abate the mold. The fact that Defendant Skyline may have helped Plaintiff with repairs is not an admission of fault and in fact is not admissible as evidence at trial. Evid. Code §§ 1151, 1152.

On August 6, 2014 Defendant Lilly Enterprises, Inc. filed a joinder to Defendant Skyline’s opposition to the motion, highlighting an apparent discrepancy in this case between Plaintiff Clay’s 2008 fee waiver application, which listed a yearly salary of $7,500, and Plaintiff Clay’s current alleged earnings of $175,000 per year, from 2012. See Joinder Exhibits.

Plaintiff’s second supplemental briefing, filed August 12, 2014 [not August 11, 2014 as is referred to in Defendant Skyline’s later filings], reasserts that requests for admission must be directed at specific facts and therefore that they cannot be directed toward “hypothetical unpled causes of action” for which no facts had been alleged at that point in a pleading, and that in fact Skyline admitted it had actual notice of the floods. Skyline’s actions were not remedial in nature but instead paying for the damage they made (allowing sewer lines to back-up), which was not a dangerous condition and thus did not require notice. Plaintiff further argues that the remaining causes of action for economic duress and money and received are not related to the flooding but instead are based inter alia on Skyline’s agent demanding more money than was due and then reneging on an agreed-upon payment plan. Plaintiff argues that there is no prima facie contradiction between a 2008 fee waiver that lists a $7,500 per year salary and a 2012 earnings statement listing $175,000.00 per year, since incomes can change.

Defendant Skyline’s sur-reply briefings, filed August 20, 2014 and August 25, 2014, reassert that requests for admission can properly target four causes of action listed in a pleading’s caption even if not specifically pleaded therein, because Defendant Skyline was aware of what Plaintiff intended to plead; additionally, those causes of action were pleaded in the First Amended Complaint, which was filed before the requests were deemed admitted. Defendant Skyline argues that Plaintiff failed to cite any authority supporting her proposition that admissions only correspond to claims alleged in former pleadings but become moot once an amended pleading is filed. Defendant Skyline reasserts that the economic duress and money had and received claims do in fact stem from the flooding issues, since the claims arise from a foreclosure that was pending due to Plaintiff’s failure to pay dues and assessments, which Plaintiff argued were not due because of the water intrusion and mold issues, and therefore if Plaintiff cannot prevail on those issues she also necessarily cannot prevail on the economic duress and money had and received claims. Further, even if not failing as dependent claims, Defendant Skyline argues that those causes of action are meritless because members cannot deduct a portion of their dues as a setoff for the homeowners association’s conduct, and vacating a property does not eliminate the homeowner’s obligation to pay the assessments. Park Place v. Naber (1994) 29 Cal. App. 4th 427, 432 and Cerro de Alcala HOA v. Burns (1985) 169 Cal. App. 3d Supp. 1, respectively. Defendant Skyline reasserts Plaintiff cannot show excusable neglect, mistake, or inadvertence as is necessary to have the admissions – deemed admitted over a year ago – set aside because Plaintiff was properly served with the requests for admission, motion to deem admitted, and notice of ruling at both her Skyline and other residence addresses. A plaintiff who made admissions fatal to the case cannot then dismiss the action and file a new case in order to evade those admissions. Miller v. Marina Mercy Hospital (1984) 157 Cal. App. 3d 765, 770. Defendant Skyline therefore argues that Plaintiff cannot avoid her admissions by filing a Second Amended Complaint, since the causes of action previously pleaded and admitted have been conclusively determined to be barred against Skyline and its agents Property Resources Management, Inc. and Lilly Enterprises, Inc.

Under the arguments, evidence, facts and law presented herein, Plaintiff has failed to carry her CCP § 391.7(b) burden of proof to establish that this ongoing litigation “has merit and has not been filed for the purposes of harassment or delay.”

On July 14, 2011, Plaintiff Clay filed this action in propria persona to stop the imminent foreclosure of her Skyline Condominium unit for her alleged failure to pay homeowners’ association dues. In addition to the pleaded causes of action for Declaratory Relief, Property Damage, and Breach of Contract, the caption in the original complaint indicated the complaint also included causes of action for Gross Negligence, Intentional Tort, Intentional Infliction of Emotion, Mental and Physical Distress, and Exemplary Damages; however those latter four causes of action were not specifically pleaded in the complaint, but instead ¶ 30 of the original complaint alleged, “Upon amendment of this complaint,” those four additional causes of action “shall be included.” This was sufficient to put Defendant Skyline on notice that Plaintiff planned to assert these claims if she were not in fact asserting them at the time, and therefore Defendant Skyline properly challenged them in their January 2, 2013 requests for admission (“Admit that defendant is not liable for your cause of action of ______”). The Court notes that Plaintiff provides no authority for her contention that requests for admission cannot challenge causes of action that are identified in a pleading’s caption but not specifically set forth in that pleading, and further notes that Plaintiff did not file any CCP § 2033.230 objections to the requests for admission on this or any other ground. Defendant Skyline brought a motion to have these matters deemed admitted, which was granted on May 22, 2013, subsequent to Plaintiff’s April 16, 2013 filing of her First Amended Complaint in which these causes of action are specifically pleaded. The Court notes that Plaintiff provides no authority for her contention that requests for admission are made moot upon the filing of an amended pleading, and instead is persuaded by Defendant Skyline’s citation to Miller v. Marina Mercy Hospital (1984) 157 Cal. App. 3d 765, 770 [a plaintiff cannot dismiss the case without prejudice in order to preserve the right to re-file it later, in an attempt to evade matters deemed admitted in the first case after the plaintiff’s failure to timely respond to requests for admission]. If a party cannot dismiss and re-file a case to sidestep harmful admissions, certainly a party cannot do so merely by filing amended pleadings.

Similarly, due to her failure to respond, on May 22, 2013 Plaintiff is deemed to have admitted that Defendant Skyline is not liable for her causes of action for Property Damage Counts 1-4; that she was not exposed to injury-causing levels of mold; that no health care provider has told Plaintiff she suffered physical injury from any exposure to mold; and that she never informed Defendant Skyline or its employee or agent that the property contained mold, that Plaintiff suffered physical injuries due to mold exposure, or that the property contained a leak. As noted above, the Court finds these admissions are not made moot by later-filed amended pleadings of the same essential allegations. As to Counts 5-6 of the Property Damage claim newly alleged in the First Amended Complaint and also alleged in the Second Amended Complaint (as to alleged leaks on October 20, 2012 and January 1, 2013), Plaintiff fails to present any argument or evidence that these specific claims have merit and thus can proceed; further, in light of the fact that these are alleged to be a continuation of the first four occurrences as to which Plaintiff is deemed to have admitted Defendant Skyline bears no liability, without specific proof as to the merit and severability of these later claims, these claims also necessarily fail.

Also due to her failure to respond, on May 22, 2013 Plaintiff is deemed to have admitted that Defendant Skyline is not liable for her cause of action for Declaratory Relief (pleaded in the original complaint but not re-alleged in later pleadings) and Breach of Contract (pleaded in the original complaint and First Amended Complaint, but not in the Second Amended Complaint). In the original complaint, Plaintiff alleged Defendant Skyline breached the payment plan agreement she entered into with Skyline’s agent SBS when it demanded Plaintiff either make a $15,000.00 payment or accept another payment plan in order to avoid foreclosure. Plaintiff sought a declaration halting the threatened foreclosure sale as it arose out of the water damage to her property which rendered it uninhabitable, essentially asking for a finding that Plaintiff was justified in withholding payment of dues based on this condition. These are essentially the allegations at the heart of the remaining causes of action. Plaintiff alleges claims for economic duress and for money had and received, i.e., allegedly improper payments Plaintiff made because of the duress, that are pleaded in the Second Amended Complaint. If not barred outright by the prior admissions, the merit of these claims is necessarily dependent on the merits of the other claims, since Plaintiff alleges she properly withheld payment because of the property damage allegedly caused by Defendant Skyline. Given her admissions that Skyline bears no liability for the damage, there is no merit to Plaintiff’s argument that she was correct in withholding the payments. Furthermore, as seen in the cases cited by Defendant Skyline, Plaintiff was not entitled to withhold payment of the fees on this basis.

The filed briefs highlight many issues that, but for the admissions, might be triable issues in the case: inter alia, whether Plaintiff ever informed the Defendants of the six water intrusions alleged in the amended pleadings; whether the Plaintiff’s capping of the Association’s pipes caused her own damages as well as water damage to other units (Plaintiff claims she was only taking defensive measures in the face of the Defendants’ failure to correct the existing plumbing problems); property management incident reports from late 2009 that either recorded no water intrusion problems when Plaintiff alleged them to have occurred or other units’ water inclusion problems caused by the Plaintiff’s unit; the Association’s payment of Plaintiff’s plumbing repair invoices as a possible admission of liability; and Plaintiff’s disputed denial of access to her unit for purposes of investigation and repair.

However, in light of Plaintiff’s admissions, Plaintiff has failed to prove there is merit to this action as a matter of law, and even the majority of the above disputed facts imply lack of factual merit to Plaintiff’s allegations.

Although Plaintiff argues she can seek to withdraw the admissions based on excusable neglect, she has not yet filed such a motion. Additionally, the primary cited ground for such a potential motion is alleged improper service of the requests for admission, which was negated by Defendant Skyline’s proffered evidence which establishes there was in fact proper service on Plaintiff at both her then-current residence as well as her Skyline address despite her contention to the contrary.

Accordingly, this court hereby DENIES the Plaintiff’s motion.