This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:27:35 (UTC).

MARIA DODOS VS CHUCK AND JACKIE WEISSMAN, DOES 1-25

Case Summary

On 03/01/2017 MARIA DODOS filed a Contract - Other Contract lawsuit against CHUCK AND JACKIE WEISSMAN, DOES 1-25. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judge overseeing this case is DEIRDRE HILL. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1897

  • Filing Date:

    03/01/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DEIRDRE HILL

 

Party Details

Plaintiff

DODOS MARIA

Defendant

WEISSMAN JACKIE

Attorney/Law Firm Details

Plaintiff Attorney

DEESE PAUL H.

 

Court Documents

Declaration

6/19/2019: Declaration

Motion for Leave

6/19/2019: Motion for Leave

Opposition

7/1/2019: Opposition

Reply

7/10/2019: Reply

Amended Complaint

7/17/2019: Amended Complaint

Minute Order

7/17/2019: Minute Order

Stipulation and Order

7/31/2019: Stipulation and Order

Complaint

3/1/2017: Complaint

Summons

3/1/2017: Summons

Civil Case Cover Sheet

3/1/2017: Civil Case Cover Sheet

Notice of Case Management Conference

3/1/2017: Notice of Case Management Conference

Order on Court Fee Waiver (Superior Court)

3/3/2017: Order on Court Fee Waiver (Superior Court)

Proof of Service (not Summons and Complaint)

3/15/2017: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

3/15/2017: Proof of Service (not Summons and Complaint)

Minute Order

3/21/2017: Minute Order

Legacy Document

4/7/2017: Legacy Document

Legacy Document

4/7/2017: Legacy Document

Legacy Document

4/7/2017: Legacy Document

85 More Documents Available

 

Docket Entries

  • 09/13/2019
  • Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Trial Setting Conference

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  • 07/31/2019
  • DocketStipulation and Order (to Withdraw Second Amended Complaint and Revive First Amended Complaint as Operative Pleading); Filed by MARIA DODOS (Plaintiff)

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  • 07/17/2019
  • Docketat 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Motion for Leave to Amend (Complaint) - Held - Motion Granted

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  • 07/17/2019
  • DocketPlaintiff and Cross-Defendant Maria Dobos' Third-Amended Complaint; Filed by MARIA DODOS (Plaintiff); MARIA DODOS (Plaintiff)

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  • 07/17/2019
  • DocketMinute Order ( (Hearing on Motion for Leave to Amend Complaint)); Filed by Clerk

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  • 07/10/2019
  • DocketReply (in Support of Motion for Leave to File Second Amended Complaint); Filed by MARIA DODOS (Plaintiff)

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  • 07/01/2019
  • DocketOpposition ( to Motion for Leave to File Second Amended Complaint); Filed by JACKIE, WEISSMAN (Defendant)

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  • 06/19/2019
  • DocketMotion for Leave (to File Second Amended Complaint; Memorandum of Points and Authorities); Filed by MARIA DODOS (Plaintiff)

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  • 06/19/2019
  • DocketDeclaration (of Paul H. Deese in Support of Plaintiff Maria Dodos' Motion for Leave to File Second Amended Complaint); Filed by MARIA DODOS (Plaintiff)

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  • 06/06/2019
  • Docketat 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Ex Parte Application (To Strike Second Amended Complaint.) - Not Held - Taken Off Calendar by Court

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116 More Docket Entries
  • 03/21/2017
  • DocketMinute order entered: 2017-03-21 00:00:00; Filed by Clerk

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  • 03/15/2017
  • DocketProof of Service (not Summons and Complaint); Filed by MARIA DODOS (Plaintiff)

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  • 03/15/2017
  • DocketRequest for Hearing About Court Fee Waiver Order (Superior Court); Filed by MARIA DODOS (Plaintiff)

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  • 03/15/2017
  • DocketProof of Service (not Summons and Complaint); Filed by MARIA DODOS (Plaintiff)

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  • 03/03/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by MARIA DODOS (Plaintiff)

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  • 03/01/2017
  • DocketComplaint; Filed by null

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  • 03/01/2017
  • DocketCivil Case Cover Sheet; Filed by MARIA DODOS (Plaintiff)

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  • 03/01/2017
  • DocketRequest to Waive Court Fees; Filed by Plaintiff

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  • 03/01/2017
  • DocketSummons; Filed by null

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  • 03/01/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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Tentative Rulings

Case Number: ****1897    Hearing Date: May 11, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARIA DODOS,

Plaintiff,

Case No.:

****1897

vs.

[Tentative] RULING

JACKIE WEISSMAN, et al.,

Defendants.

Hearing Date: May 11, 2021

Moving Parties: Attorney Paul H. Deese, Esq., representing plaintiff Maria Dodos

Responding Party: None

Motion to Be Relieved as Counsel

The court considered the moving papers.

RULING

The motion is GRANTED. The court orders that the attorney is relieved as counsel of record for plaintiff Maria Dodos, effective upon the filing of the proof of service of the signed “Order Granting Attorney’s Motion to Be Relieved as Counsel – Civil” (Judicial Council form MC-053) upon the client.

BACKGROUND

On March 1, 2017, Maria Dodos, ind. and as trustee of the Maria Dodos 2014 Trust filed a complaint against Jackie Weissman and Chuck Weissman. Dodos lives at 1108 Loma Drive , Unit 2, Hermosa Beach. Weissmans reside at 1106 Loma Drive, Unit 1, Hermosa Beach. This action arises out of a dispute between next-door residents belonging to a two-unit common interest development.

On November 13, 2017, the Weissmans filed a cross-complaint against plaintiff for (1) continuing private nuisance, (2) IIED, (3) intentional misrepresentation, (4) appropriation of likeness, (5) breach of CC&Rs, and (6) declaratory relief.

On July 17, 2019, plaintiff filed a TAC for (1) breach of CC&Rs, (2) breach of written contract, (3) breach of oral contract, (4) specific performance, (5) negligence, (6) intentional infliction of emotional distress, (7) nuisance, and (8) declaratory relief.

On February 17, 2021, Jackie Weissman filed a FACC.

LEGAL STANDARD

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. See Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915; People v. Prince (1968) 268 Cal. App. 2d 398.

CRC Rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)).

DISCUSSION

Plaintiff Maria Dodos’ attorney of record, Paul H. Deese, Esq., seeks to be relieved as counsel.

Counsel states in his declaration that there is a breakdown of the attorney/client relationship rendering the firm’s continued representation impossible.

The court finds that the attorney submitted a declaration establishing that the service requirements of California Rules of Court, Rule 3.1362, have been satisfied. The court also finds that the attorney has shown sufficient reasons why the motion to be relieved as counsel should be granted and why the attorney has brought a motion under CCP ; 284(2) instead of filing a consent under ; 284(1).

The motion is GRANTED.

Moving counsel is ordered to give notice of this ruling.



Case Number: ****1897    Hearing Date: May 4, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARIA DODOS,

Plaintiff,

Case No.:

****1897

vs.

[Tentative] RULING

JACKIE WEISSMAN, et al.,

Defendants.

Hearing Date: May 4, 2021

Moving Parties: Plaintiff and cross-defendant Maria Dodos

Responding Party: Defendant and cross-complainant Jackie Weissman

(1) Demurrer to FACC

(2) Motion to Strike

The court considered the moving, opposition, and reply papers.

RULING

The demurrer to the 3rd cause of action for wrongful death is OVERRULED. The motion to strike is DENIED.

BACKGROUND

On March 1, 2017, Maria Dodos, ind. and as trustee of the Maria Dodos 2014 Trust filed a complaint against Jackie Weissman and Chuck Weissman. Dodos lives at 1108 Loma Drive , Unit 2, Hermosa Beach. Weissmans reside at 1106 Loma Drive, Unit 1, Hermosa Beach. This action arises out of a dispute between next-door residents belonging to a two-unit common interest development. The Weissman property faces the street and the Dodos property is behind the Weissman property. The two properties share a common driveway.

On November 13, 2017, the Weissmans filed a cross-complaint against plaintiff for (1) continuing private nuisance, (2) IIED, (3) intentional misrepresentation, (4) appropriation of likeness, (5) breach of CC&Rs, and (6) declaratory relief.

On July 17, 2019, plaintiff filed a TAC for (1) breach of CC&Rs, (2) breach of written contract, (3) breach of oral contract, (4) specific performance, (5) negligence, (6) intentional infliction of emotional distress, (7) nuisance, and (8) declaratory relief.

Plaintiff alleges that defendant Jackie and Chuck, who died in January 2019, breached the CC&Rs for various prohibited reasons, including by building structures in the common area for their own private use, building and replacing gates in the common area that restricted plaintiff’s use of the common area, building and replacing a utility cabinet door, staining a fence that also caused damage to the common area, removing and/or killing plants in the common area, placing security cameras and signs around the property, attempting to fix cracks in a shared driveway, allowing their animals to roam free in the common area, and threatening and harassing plaintiff, her guests, and people hired to perform work on the Dodos Property.

On August 27, 2020, the court denied Jackie Weissman’s motion for summary judgment. The court denied summary adjudication as to the 1st (in part) 2nd, 3rd, 5th, 7th, and 8th causes of action. The court granted summary adjudication as to the 1st cause of action (for any conduct alleged to violate CC&Rs 2.4, 3.4, 5.1(a), 5.3, and 6.1, and specific conduct alleged to violate CC&Rs 5.1(b) – leaving tire marks and oil spots on driveway, parking their cars in the guest parking space, effectively blocking plaintiff from backing out of her own garage, poorly patching the driveway causing cracks, using the property as a business, misusing plaintiff’s hose, and causing debris to clog the sump screen) and 4th cause of action.

On December 2, 2020, the court denied Dodos’ motion for summary judgment as against the cross-complaint. The court granted summary adjudication as to 1st cause of action (only as to harassing emails, sump-pump debris incident, beeping device incident, and threat to sue incident), 2nd cause of action (only on any alleged conduct not relating to the impersonation incident and any events that occurred before March 1, 2015), 3rd cause of action, 4th cause of action (only on Chuck’s claim), 5th cause of action, and 6th cause of action (on all requests except whether the CC&Rs do not require the other owner’s approval before altering the exterior of one’s own unit).

On January 13, 2021, the court granted Jackie Weissman’s motion for leave to file a FACC as to the proposed 3rd and 5th causes of action and denied it as to the proposed 7th, 8th, and 9th causes of action.

On February 17, 2021, Chuck Weissman, deceased, through his authorized representative, Jackie Weissman and Jackie Weissman filed a FACC for (1) continuing private nuisance, (2) IIED, (3) wrongful death, (4) appropriation of likeness, (5) violation of CC&Rs, and (6) declaratory relief.

Trial is set for June 9, 2021.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP ; 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP ; 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP ; 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP ; 437.

DISCUSSION

Demurrer

Plaintiff and cross-defendant Dodos demurs to the 3rd cause of action for wrongful death in the FACC on the ground that it fails to state sufficient facts to constitute a cause of action.

In the FACC, after stating verbatim several emails from Dodos to the Weissmans, the cross-complainants allege that Dodos’ years long name calling, harassment, and gaslighting coupled with her extreme and volatile behavior has deeply affected both the Weissmans. Chuck Weissman suffered from depression. He suffered from several mental health issues, including irresistible impulses making him more susceptible to, and affected by, Dodos’ conduct. Chuck was hurt by Dodos’ allegations because they were not true. Dodos’ outrageous conduct caused Chuck to suffer additional mental health issues, including depressing, anxiety, fear, and apprehension, as well as aggravating his existing mental health issues. Dodos’ outrageous conduct exacerbated Chuck’s existing mental health issues, including depression and irresistible impulses. Jackie suffered seeing Chuck so hurt by Dodos’ conduct toward them. Jackie began suffering from depression as well. Both sought treatment to deal with Dodos’ behavior and how to cope with her conduct. Their feelings were exacerbated, as well as validated, once they learned that Dodos had threatened to kill them and hire a hitman and that Dodos’ own therapist thought the threats were credible enough to report them to the HBPD. HBPD conducted a wellness check of Dodos in August 2017. Chuck tried to shield Jackie, by being the primary person to interact with Dodos. FACC, ¶39. After dealing with Dodos’ relentless, never ending conduct, Chuck committed suicide on January 28, 2019. Id., ¶40. Chuck felt tortured by Dodos. He expressed to Jackie that he would kill himself because “of that torture” by Dodos. Jackie could see his depression worsening over time. Id., ¶42.

“A cause of action for wrongful death is thus a statutory claim. CCP ;; 377.60–377.62. Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death. . . . The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.” Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1263 (internal citations omitted).

“[A] plaintiff may resist a demurrer to a wrongful death action for intentional conduct leading to suicide if he can allege facts sufficient to show that defendant’s conduct was outrageous and a substantial factor in the decedent’s suicide.” Nally v. Grace Community Church (1988) 47 Cal. 3d 278, 301 (citation omitted).

Cross-defendant Dodos argues that the allegations are insufficient because the FACC does not allege the existence of a duty owed by Dodos to Chuck and a breach of any duty. Dodos argues that the harm to Chuck as a result of Dodos’ conduct was not reasonably foreseeable. Dodos asserts that the allegedly negligent conduct consisted of emails, raised voice, the impersonation of someone other than Chuck, and feeling “validated” in their fear after learning of a death threat and subsequent well-fair check. Further, defendant asserts, the overwhelming majority of Dodos’ conduct was carried out through email communications. Also, Dodos’ statement about her alleged desire to hire a hitman occurred in August 2017, which was six months after Dodos filed the complaint, and the Weissmans did not learn about this statement until over a year after it happened. Even if Chuck’s suicide was a foreseeable outcome of Dodos’ alleged conduct, Dodos argues, other then being neighbors, there was no special relationship between them.

In opposition, cross-complainants argue that the allegations are sufficient because the FACC alleges that Dodos’ wrongful acts were intentionally done to cause mental distress, and such mental distress caused Chuck to take his own life, even after cross-complainants’ made Dodos aware that her incessant and unnecessary conduct was affecting their physical and emotional health. Cross-complainants point out their allegations that Dodos wished they would “go down [themselves] in the ocean” and referred to them as a “big cancer for [Dodos], that just needs to be excised and destroyed.” Cross-complainant also pled facts that Dodos’ abusive behavior caused Chuck to suffer additional mental health issues, including depression and irresistible impulses. Cross-complainants further argue that under an alternative theory, Dodos’ “negligent” conduct caused Chuck emotional distress, which caused him to commit suicide.

Despite Dodos’ efforts to downplay her alleged wrongful conduct, the court finds that the allegations are sufficient to meet the elements in showing that her conduct was outrageous and intended to cause harm and thus no special relationship is required.

The demurrer is OVERRULED.

Motion to Strike

Cross-defendant Dodos requests that the court strike allegations regarding Dodos’ unwillingness to form an HOA, at FACC, ¶¶14, 26, and 87.

Dodos argues that the allegation are moot based on Weissman’s recent filing of Articles of Incorporation on February 1, 2021 for the formation of an HOA as to 1106 and 1108 Loma.

In opposition, cross-complainants argue that the allegations are essential to the 5th cause of action for breach of CC&Rs and that current circumstances do not negate prior conduct. Cross-complainant asserts that nothing has changed since Dodos’ initial refusal to form an HOA in 2014, and that she has still refused to participate, and likely never will. Cross-complainant explains that to date, the parties do not have an HOA with her consent and that it was formed over her objections.

The court finds that Dodos has not shown that the allegations are irrelevant or improper.

The motion to strike is DENIED.

Cross-complainant is to give notice of the ruling.



Case Number: ****1897    Hearing Date: January 13, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARIA DODOS,

Plaintiff,

Case No.:

****1897

vs.

[Tentative] RULING

JACKIE WEISSMAN, et al.,

Defendants.

Hearing Date: January 13, 2021

Moving Parties: Cross-complainant Jackie Weissman

Responding Party: Cross-defendant Maria Dodos

Motion for Leave to Amend Cross-Complaint

The court considered the moving, opposition, and reply papers.

RULING

The motion to amend the cross-complaint is GRANTED as to the proposed 3rd and 5th causes of action and DENIED as to the proposed 7th, 8th, and 9th causes of action. Cross-complainant is to file a FACC within five days in accordance with this order.

BACKGROUND

On March 1, 2017, Maria Dodos, ind. and as trustee of the Maria Dodos 2014 Trust filed a complaint against Jackie Weissman and Chuck Weissman. Dodos lives at 1108 Loma Drive , Unit 2, Hermosa Beach. The Weissman’s reside at 1106 Loma Drive, Unit 1, Hermosa Beach. This action arises out of a dispute between next-door residents belonging to a two-unit common interest development. The Weissman property faces the street and the Dodos property is behind the Weissman property. The two properties share a common driveway.

On November 13, 2017, the Weissmans filed a cross-complaint against plaintiff for (1) continuing private nuisance, (2) IIED, (3) intentional misrepresentation, (4) appropriation of likeness, (5) breach of CC&Rs, and (6) declaratory relief.

On July 17, 2019, plaintiff filed a TAC for (1) breach of CC&Rs, (2) breach of written contract, (3) breach of oral contract, (4) specific performance, (5) negligence, (6) intentional infliction of emotional distress, (7) nuisance, and (8) declaratory relief.

Plaintiff alleges that defendant Jackie and Chuck, who died in January 2019, breached the CC&Rs for various prohibited reasons, including by building structures in the common area for their own private use, building and replacing gates in the common area that restricted plaintiff’s use of the common area, building and replacing a utility cabinet door, staining a fence that also caused damage to the common area, removing and/or killing plants in the common area, placing security cameras and signs around the property, attempting to fix cracks in a shared driveway, allowing their animals to roam free in the common area, and threatening and harassing plaintiff, her guests, and people hired to perform work on the Dodos Property.

On August 27, 2020, the court denied Jackie Weissman’s motion for summary judgment. The court denied summary adjudication as to the 1st (in part) 2nd, 3rd, 5th, 7th, and 8th causes of action. The court granted summary adjudication as to the 1st cause of action (for any conduct alleged to violate CC&Rs 2.4, 3.4, 5.1(a), 5.3, and 6.1, and specific conduct alleged to violate CC&Rs 5.1(b) – leaving tire marks and oil spots on driveway, parking their cars in the guest parking space, effectively blocking plaintiff from backing out of her own garage, poorly patching the driveway causing cracks, using the property as a business, misusing plaintiff’s hose, and causing debris to clog the sump screen) and 4th cause of action.

On December 2, 2020, the court denied Dodos’ motion for summary judgment as against the cross-complaint. The court granted summary adjudication as to 1st cause of action (only as to harassing emails, sump-pump debris incident, beeping device incident, and threat to sue incident), 2nd cause of action (only on any alleged conduct not relating to the impersonation incident and any events that occurred before March 1, 2015), 3rd cause of action, 4th cause of action (only on Chuck’s claim), 5th cause of action, and 6th cause of action (on all requests except whether the CC&Rs do not require the other owner’s approval before altering the exterior of one’s own unit).

Trial is set for June 9, 2021.

LEGAL AUTHORITY

CCP ; 473(a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1047.

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486, 490. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471, 486-488.

DISCUSSION

Cross-complainant Jackie Weissman requests leave to file an FACC to add 3rd cause of action for wrongful death of Chuck Weissman, 5th cause of action for violation of CC&Rs, 7th cause of action for violation of Unruh Act, 8th cause of action for FEHA, and 9th cause of action for violation of Federal Fair Housing Act. Weissman also seeks to amend to add facts that either occurred, or were learned, after November 2017.

Weissman asserts that as to the proposed 7th, 8th, and 9th causes of action, she asserted as affirmative defenses in her answer filed on December 4, 2019. She asserts that the proposed claims arise out of Jackie’s request to use a common area as a dog run for her emotional support dogs and that Dodos had refused to accommodate the CC&Rs 5.1(e) rule, which provides that no animals of any kind shall be kept in the common area. As to the proposed 3rd cause of action for wrongful death (based on his suicide on January 28, 2019), Weissman contends that it arises out of the same facts and circumstances of the current case, and includes Dodos’ intentional conduct, Chuck’s mental health issues, and a substantial factor causal link. Weissman argues that there was no impermissible delay in seeking amendment because it was not initially identified until recently at Jackie’s deposition and then the pandemic struck. Weissman further argues that cross-defendant Dodos will not be prejudiced.

In opposition, cross-defendant Dodos argues that Weissman failed to comply with Rule 3.1324 because counsel’s declaration did not indicate which portions of the pleading have been deleted or added with particularity or why the amendment is necessary and proper for any of the claims other than wrongful death.

She also argues that the claims are deficient. As to the proposed 7th cause of action for Unruh, Dodos argues that it applies to “business establishments” and not Dodos, who is a neighbor. As to the 8th cause of action under FEHA, Weissman does not allege an act that qualifies for “discrimination” under Gov. Code ;12955. Further, as to the 9th cause of action under FHA, the act of denying use of the common area as a dog run does not constitute a violation of the FHA because discrimination must affect plaintiff’s ability to use a “dwelling.”

She further argues that she would be unfairly prejudiced and that Weissman has been dilatory.

In reply, cross-complainant acknowledges that counsel did not set forth the changes with particularity but does so in an amended declaration.

The court finds that cross-complainant has substantially complied with CRC Rule 3.1324. The court finds though that amendment would be futile as to the proposed 7th, 8th, and 9th causes of action as argued by cross-defendant. As to the 3rd cause of action, cross-complainant sufficiently explains why she did not seek to amend sooner. As to the proposed 5th cause of action for breach of CC&Rs, there is no prejudice to cross-defendant.

The motion is thus GRANTED as to the proposed 3rd and 5th causes of action and DENIED as to the proposed 7th, 8th, and 9th causes of action.

Moving party is ordered to give notice of the ruling.



Case Number: ****1897    Hearing Date: December 02, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

MARIA DODOS individually and as trustee of the Maria DODOS 2014 TRUST,

plaintiffs,

Case No.:

****1897

vs.

[Tentative] RULING

JACKIE WEISSMAN and DOES 1 through 25, inclusive,

defendants.

Hearing Date: December 2, 2020

Moving Parties: plaintiff/cross-defendant Maria Dodos

Responding Party: defendant/cross-complainant Jackie Weissman

Motion for Summary Judgment or, in the alternative, Summary Adjudication of Issues as to the Cross-Complaint

The court considered the moving, opposition, and reply papers.

RULING

Plaintiff/cross-defendant Maria Dodos’ Motion for Summary Judgment as to cross-complainants Jackie Weissman and Chuck Weissman’s cross-complaint is DENIED.

Plaintiff/cross-defendant Maria Dodos’ Motion for Summary Adjudication as to cross-complainants Jackie Weissman and Chuck Weissman’s cross-complaint is GRANTED IN PART AND DENIED IN PART AS FOLLOWS:

1. first cause of action – granted only on the following conduct: the harassing emails, sump-pump debris incident, the beeping device incident, and the threat to sue incident;

2. second cause of action – granted only on any alleged conduct not relating to the impersonation incident and any events that occurred before March 1, 2015;

3. third cause of action – granted;

4. fourth cause of action – granted only on Chuck’s claim (i.e. not on Jackie’s claim);

5. fifth cause of action – granted; and

6. sixth cause of action – granted on all requests except whether the CC&Rs do not require the other owner’s approval before altering the exterior of one’s own unit.

I. BACKGROUND

On March 1, 2017, Plaintiff Maria Dodos individually and as trustee of the Maria Dodos 2014 Trust (“Dodos”) filed her initial complaint.

On November 13, 2017, Defendants Jackie Weissman (“Jackie”) and her husband Chuck Weissman (“Chuck”), who later died in January 2019 (collectively the “Weissmans”), filed their cross-complaint against Dodos and Roes 1 to 60 asserting six causes of action for: (1) continuing private nuisance; (2) intentional infliction of emotional distress; (3) intentional misrepresentation; (4) appropriation of likeness; (5) breach of covenants, conditions, and restrictions; and (6) declaratory relief.

On July 17, 2019,[1] Dodos filed her operative third-amended complaint (“TAC”) against Jackie and Does 1 to 25 asserting eight causes of action: (1) breach of covenants, conditions, and restrictions; (2) breach of written contract; (3) breach of oral contract; (4) specific performance; (5) negligence; (6) intentional infliction of emotional distress; (7) nuisance; and (8) declaratory relief. Dodos does not assert any claims against Chuck’s estate.

Following motion practice, Dodos maintains all of her TAC’s claims except for portions of the first cause of action, the entire fourth cause of action, and the entire sixth cause of action.

On June 11, 2020, Dodos filed a motion for summary judgment or in the alternative summary adjudication, involving all of the Weissmans’ claims.

Jackie opposed Dodos’ motion on her behalf only. Jackie does not claim any authority to litigate on Chuck’s behalf. Therefore, Chuck does not oppose this motion.

Dodos filed a reply.

The jury trial is scheduled for February 3, 2021.

II. LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP, ; 437c, subd. (p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Ibid. “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal.App.4th at 467; CCP, ; 437c, subd. (p)(2). “‘An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1014, citation omitted.

III. EVIDENTIARY OBJECTIONS

The parties object to portions of the other parties’ evidence. In total, Jackie asserts 1 objection and Dodos asserts 24 objections.

A. Jackie’s objection to Dodos’ evidence

Jackie objects to the Declaration of Marie Dodos.

The court rules on the sole objection as follows: (1) sustained. Jackie identifies deposition testimony sufficiently contradicting this claim. Additionally, this statement is a legal conclusion, i.e., Dodos cannot directly claim she received no “advantage” because that is a legal term and element of the appropriation of likeness claim.

B. Dodos’ objections to Jackie’s evidence

Dodos objects to the Declaration of Jackie Weissman and Cheri Adrian.

The court rules on the objections to the Declaration of Jackie Weissman as follows: (1) overruled; (2) overruled; (3) overruled; (4) overruled; (5) overruled; (6) overruled; (7) overruled; (8) overruled; (9) overruled; (10) overruled; (11) overruled; (12) overruled; (13) overruled; (14) overruled; (15) overruled; (16) overruled; and (17) sustained (legal conclusion).

In overruling the objections, the court finds that Jackie has sufficient first-hand knowledge to state these facts, though she could have explained her personal knowledge better. See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [opposition declaration liberally construed]. The issue of whether Dodos is obligated to reimburse Jackie is irrelevant to the factual claim that Dodos did not reimburse her. See Objection Nos. 3, 5, 8-9, 15. Finally, although Jackie does not artfully authenticate the photographic evidence, when liberally construing her declaration, the court finds that she is stating that the photos accurately depict the area on certain dates and her proximity to the locations gives her sufficient personal knowledge. See id. Nos. 11-14. Jackie does not need to state a specific date when the photographs were taken because a general time frame (month and year) is sufficient for the purposes as stated in the declaration, i.e., what the area generally looked during the relevant time period, which is not limited to a single or specific day.

The court rules on the objections to the Declaration of Cheri Adrian as follows: (18) overruled (see Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 187-189 [in expert declaration in opposition to summary judgment, expert's description of particular testing processes used and specific results supporting conclusions not required for admissibility]); (19) overruled, though largely irrelevant because the issue of credibility is not considered for this motion’s purposes; (20) overruled; (21) overruled; (22) overruled; (23) overruled; and (24) overruled.

IV. REQUEST FOR JUDICIAL NOTICE

Dodos requests the court to take judicial notice of the covenants, conditions, and restrictions (Exhibit 1) and its amendment (Exhibit 2). Jackie does not oppose this request.

“Judicial notice may not be taken of any matter unless authorized or required by law.” Evid. Code, ; 450. Evidence Code ;; 451 and 452 list matters that are subject to judicial notice.

In regard to the documents for which the court grants judicial notice, the court is not mandated to accept the truth of its their contents or the parties’ interpretation of those contents. Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.

The court grants Dodos’ unopposed request for judicial notice.

V. DISCUSSION

A. Summary of Pleadings

This action arises out of a homeowner dispute among neighboring residents belonging to a two-unit common interest development.

During the relevant time period, Dodos lived at 1108 Loma Drive, Unit #2, Hermosa Beach, California (“Dodos Property” or “1108 Loma”), and Jackie and Chuck lived at 1106 Loma Drive, Unit #1, Hermosa Beach, California (“Weissman Property” or “1106 Loma”).

The Weissman Property faces the street and the Dodos Property is behind the Weissman Property. The two properties share a common driveway.

Both properties are part of the common interest development (the “Development”) and are governed by The 1106 & 1108 Loma Homeowners Association (the “Association”)—although it was never formed—and certain governing documents including the covenants, conditions, and restrictions (the “CC&Rs”) and a subsequent amendment.

1. TAC

Dodos alleges that the Weissmans breached the CC&Rs for various prohibited reasons, including by building structures in the common area for their own private use, building and replacing gates in the common area that restricted Dodos’ use of the common area, building and replacing a utility cabinet door, staining a fence that also caused damage to the common area, removing and/or killing plants in the common area, placing security cameras and signs around the property, attempting to fix cracks in a shared driveway, allowing their animals to roam free in the common area, and threatening and harassing Dodos, her guests, and people hired to perform work on the Dodos Property.

Dodos further alleges that these breaches of the CC&Rs give rise to other claims.

2. Cross-complaint

The Weissmans allege in their cross-complaint Dodos acted in certain disruptive ways as follows.

1. Email harassment (¶¶ 10-19): sending annoying, excessive emails that involved non-urgent issues about property maintenance. The Weissmans requested Dodos to send her emails once a month, but Dodos refused. The harassing emails caused emotional distress, including damaging the Weissmans’ marriage.

2. Sump-pump debris incident (¶ 20): leaving soil, leaves and dirt from the sump pump screen on the Weissmans’ doorstep, along with a handwritten note containing derogatory language;

3. Gossip (¶ 22): sharing the alleged disruption that she was causing to the Weissmans’ marriage with others;

4. Beeping device (¶ 23): leaving a device with a loud beeping noise in her garage while she was gone from her unit for several weeks;

5. Contractor debris (¶ 24): accusing the Weissmans of having a contractor on the premises which left behind oil stains and contractor debris on the premises;

6. Misrepresentation (¶ 24): intentionally misrepresenting that the Weissmans needed Dodos’ permission to make exterior and external repairs, maintenance, and/or improvements, which included the use of security cameras and the Weissmans suffered a burglary and the resulting damages could have been reduced if the security cameras had been installed; and

7. More email harassment (¶ 25): harassing the Weissmans with emails about the placement of six security cameras by the Weissmans;

8. Impersonation incident (¶¶ 28-30): pretending to be Jackie and canceling the restoration of the Weissmans’ gas schedule with the gas company following the termite fumigation service of the Weissman Property; and

9. Utility closet incident (¶ 31): attempting to install internet equipment using the Weissmans’ electricity inside a utility closet affixed to the Weissman Property.

B. Moving party’s requests

Dodos moves for summary judgment on the cross-complaint on the grounds that none of the causes of action in the cross-complaint have any merit.

Alternatively, Dodos requests summary adjudication as to the following issues:

1. Issue 1: The first cause of action for private nuisance has no merit because no condition substantially interfered with the use and enjoyment of the Weissmans’ property;

2. Issue 2: The second cause of action for IIED has no merit because the Weissmans did not suffer severe emotional distress;

3. Issue 3: The third cause of action for intentional misrepresentation has no merit because Dodos did not knowingly make a false representation;

4. Issue 4: The fourth cause of action for appropriation of likeness has no merit because Dodos did not obtain any economic or financial benefit from the alleged appropriation of the Weissmans’ likeness;

5. Issue 5: The fifth cause of action for breach of the CC&Rs has no merit because the CC&Rs do not prohibit Dodos from “making conflicting and contradictory statements as to the CC&Rs’ reach” as alleged in the Cross-Complaint; and

6. Issue 6: The sixth cause of action for declaratory relief has no merit because the Weissmans are not entitled to a declaration in their favor.

However, the court notes that although not included in the notice of motion, Dodos includes additional reasons for issues (i.e., sub issues) that discussed further below.

C. Facts

Both parties filed separate statements of facts.

1. Moving party’s separate statement of undisputed facts

Dodos’ separate statement of undisputed material facts (“UMF”) contains 29 identified facts, some of which are repeated verbatim across the issues. In other words, Dodos proffers a universe of 29 facts in support of her summary judgment motion and then repeats individual facts as applicable to specific issues for her summary adjudication motion. The facts are not consecutively numbered across the six issues. Dodos proffers the following number of facts for each issue:

1. Entire cross-complaint – UMF ¶¶ 1-29;

2. Issue 1 – UMF ¶¶ 1-5, 8, 12-23;

3. Issue 2 – UMF ¶¶ 1-7, 24-26;

4. Issue 3 – UMF ¶¶ 1-8, 17-20, 22-23;

5. Issue 4 – UMF ¶¶ 1-5, 8, 22-23, 27;

6. Issue 5 – UMF ¶¶ 1-5, 11, 28-29; and

7. Issue 6 – UMF ¶¶ 1-5, 7-8, 18, 20.

The pertinent facts are as follows.

Dodos and Jackie live next to each other in a two-unit condominium project which is governed by the CC&Rs as amended. UMF ¶¶ 1-5. The CC&Rs govern the parties’ relationship, gives unit owners certain permission to use their own property, and restricts certain uses, including common areas. Id. ¶¶ 6-8, 10-11, 17-23, 28.

Dodos sent many emails to the Weissmans, but stopped emailing Jackie in September 2014. Id. ¶¶ 13-15.[2] Jackie suffered some harm based on Dodos’ conduct, though the parties dispute the extent of the harm and whether Dodos benefited from it. Id. ¶¶ 24-27.

2. Opposing party’s separate statement of disputed facts

Jackie in her responsive separate statement filed disputed additional material facts that preclude summary judgment/adjudication (“SSDAMF”). Confusingly, the additional facts are numbered based off the UMF and stated in an improper format sandwiched between portions of the UMF. Jackie proffers disputed facts in the SSDAMF identified as: 11.a-11.g, 13.a-13.c, 17.a, 24.a-24.w, 27.a, and 29.a-29.g.

The court finds it unnecessary to explain the additional facts, though it does note that some of the facts involve conduct not alleged in the cross-complaint as part of the Weissmans’ claims.

D. Whether Dodos’ separate statement is fatally defective

As a preliminary matter, Jackie argues that the court should deny this motion because Dodos fails to cite supporting evidence or deliberately misquotes the evidence in the separate statement, which noticeably does not address many facts for certain alleged conduct. See opposition 8:21-9:12. The court rejects this argument because it is preferable to rule on the merits, especially considering certain facts are referred to in the separate statement and the evidence supporting Dodos’ legal arguments is still in the moving papers. See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315.

E. Dodos’ motion is silent as to Chuck’s claims

Dodos correctly identifies that Chuck passed away. However, Dodos incorrectly contends that she does not need to address his claims.

Dodos assumes that all of her arguments involving Jackie’s claims also applies to Chuck’s claims. That assumption is incorrect. For example, Jackie and Chuck allegedly suffered different emotional distress from Dodos’ actions. When arguing that there is no evidence to satisfy the element of severe emotional distress in the intentional infliction of emotional distress claim, Dodos must address the evidence separately for Jackie and Chuck. As discussed further below, Dodos does not do so.

Accordingly, there are some situations that Chuck’s claims are treated differently and Dodos cannot otherwise rely on the lack of opposition to prevail on her motion as to his claims.

F. First cause of action: continuing private nuisance

The continuing private nuisance claim is premised on Dodos: (1) sending many harassing emails (cross-complaint ¶¶ 10-14, 16-19, 21); (2) threatening to sue and actually doing so (id. ¶¶ 17, 24(d), 31(e); (3) dumping sump-pump debris on the Weissmans’ doorstep with a derogatory note in 2013 (id. ¶ 20); (4) leaving a beeping device in her garage for several weeks in January 2014 (id. ¶ 23); and (5) attempting to have a cable installed in a shared utility closet (id. ¶ 31).

CCP ; 731 allows a property owner to bring an action for private nuisance as defined in Civil Code ; 3470 against another. Relevant to this discussion, Civil Code ; 3479 defines a nuisance:

Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

Private nuisance liability depends on some sort of conduct by the defendant that either directly and unreasonably interferes with the plaintiff’s property or creates a condition that does so. Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100. “A nuisance is an interference with the interest in the private use and enjoyment of the land and does not require interference with the possession.” McBride v. Smith (2018) 18 Cal.App.5th 1160, 1178.

Dodos argues that the nuisance claim fails because: (1) the Weissmans cannot establish that their alleged injury caused by the emails has anything to do with their land; (2) the emails do not constitute substantial or unreasonable interference and in any event Jackie voluntarily read them; (3) the sump-pump debris and utility closet incidents involve use of a common area and therefore the Weissmans do not have an undivided interest in the affected land; (4) the threat to sue and the lawsuit itself is protected by the litigation privilege; and (5) the statute of limitations bars recovery for acts that occurred before March 2014.

First, Dodos argues that the alleged injury suffered from the emails has nothing to do with land. The emails, though they relate to the Weissmans’ property rights, did not cause an injury to their interest in land, e.g., a structure encroaching on one’s own property, water pollution or flooding, noxious odors caused by sewage, and so forth. Although modern cases have recognized that the statutory definition of nuisance appears to be broad enough to encompass almost every conceivable type of interference with the enjoyment or use of land or property, it still must involve the use of land or propertyMangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1136. Here, Jackie misconstrues the controlling law. Jackie correctly argues that a nuisance does not require proof of damages to a plaintiff’s property. See opposition 11:20-21. However, there is still a requirement of interference with a plaintiff’s use and enjoyment of that property. Jackie also correctly argues that unlike trespass, a nuisance does not require interference with possession of property. Id.12:10-11. However, there still must be interference with the use or enjoyment of property. Emails have no physical manifestation and did not affect the Weissmans’ physical use or enjoyment of their land. Jackie cannot otherwise maintain a nuisance claim simply because but for her ownership in the unit then she would not have received the emails. 

Accordingly, the court grants summary adjudication on the emails on this basis.

Dodos also argues the emails do not constitute substantial or unreasonable interference and in any event Jackie voluntarily read them. As stated earlier, there is no injury to the land. Therefore, there is also no substantial or unreasonable interference with the land. Regarding whether Jackie could have voluntarily read the emails, first there is a triable issue of fact whether Jackie had to read the emails when she was still receiving the emails, i.e., before Dodos sent only Chuck the emails. Additionally, Jackie was allegedly injured from receiving the frequent emails and this injury occurred regardless of whether she opened the emails themselves.

Accordingly, the court grants summary adjudication on the emails on the basis that they do not constitute substantial or unreasonable interference.

Before addressing Dodos’ other arguments, the court notes that Dodos did not make the above argument regarding the substantial or unreasonable nature required for other conduct. Therefore, the court does not consider that issue even if the Weissmans cannot sustain a claim on other conduct for those reasons.

Third, Dodos argues that the sump-pump debris and utility closet incidents involve use of a common area and therefore the Weissmans do not have an undivided interest in the affected land. Dodos proffers evidence to show that the affected areas—the doorstep of the Weissman Property (in the sump-pump debris incident) and the exterior utility closet (in the utility closet incident involving the cable installation)—involve common areas, which as defined by the CC&Rs are all areas except the units themselves. Motion Ex. 1 article I1, ; 1.5. Additionally, according to the CC&Rs, Dodos has an undivided interest in these common areas as tenants in common with the Weissmans. And as a tenant in common, Dodos has the right to share equally in possession of those areas. However, Dodos’ argument ignores that the Weissmans also have a similar property right. Dodos cannot simply do whatever he wants with the common areas without any consideration on how those actions affect the Weissmans. A privilege to use the common areas does not mean a privilege to use the areas in any possible way. Certain actions, though they may be technically permitted by the CC&Rs, can still constitute an interference with the Weissmans’ rights to enjoy the common areas. The Weissmans do not need an exclusive use to the areas that Dodos interferes with. 

Accordingly, the court denies summary adjudication on the sump-pump debris and cable installation incidents on this basis.

Fourth, Dodos argues that the threat to sue and the lawsuit itself is protected by the litigation privilege. Civil Code ; 47 sets forth the litigation privilege, which provides that any publication made in a legislative proceeding, judicial proceeding, and “any other official proceeding authorized by law” is privileged to all torts except malicious prosecution. See Civ. Code, ; 47, subd. (b). The usual formulation is that the privilege “applies to any communication (1) made in judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” L.G. v. M.B. (2018) 25 Cal.App.5th 211, 219. Dodos argues that the alleged threat to sue is within the context of a communication in preparation or in anticipation of litigation. The statement, as provided in the cross-complaint ¶ 24(d), includes references to Dodos speaking to her attorney and threatening legal action. Therefore, the litigation privilege extends to this conduct and bars the Weissmans’ claim.

Accordingly, the court grants summary adjudication on the threat to sue on this basis.

Finally, Dodos argues that the statute of limitations bars some of the Weissmans’ claims involving acts that occurred before March 2014. The statute of limitations for a nuisance claim alleging damage to real property is three years. CCP ; 338, subd. (b). When examining much of the cross-complaint, most of the conduct, though not all, occurred before March 2014: (1) the email harassment to Jackie continued until September 2014 and therefore a claim based on this conduct is timely (UMF ¶ 15); (2) the sump-pump debris incident occurred on November 29, 2013 (cross-complaint ¶ 20); (3) the beeping device incident occurred in January 2014 (id. ¶ 23); (4) the threat to sue occurred in January 2014 (id. ¶ 24);[3] (5) the utility closet incident occurred in 2017 and this is timely (id. ¶ 31).

However, Jackie contends that some of these events are a nuisance that is a “continuing nuisance,” and in that situation, she can bring successive actions for damages until the nuisance is abated. Wilshire Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 744. “The crucial test of a continuing nuisance is whether the offensive condition can be discontinued or abated at any time.” Ibid. “Generally, whether a trespass is continuing or permanent is a question of fact properly submitted to the jury.” Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 597; see also id. at p. 594 [“[G]enerally the principles governing the permanent or continuing nature of a trespass or nuisance are the same and the cases discuss the two causes of action without distinction.”]. Jackie only claims that the emails are a continuing nuisance and not any of the other conduct. Dodos does not respond to this argument in reply and the court treats this failure to do so as a concession that the argument has merit.

Accordingly, the court grants summary adjudication on this basis for some of the conduct, namely the sump-pump debris, the beeping device, and the threat to sue incidents. However, the court denies summary adjudication on this basis for some of the conduct, namely the harassing emails and the utility closet incident.

Because the Weissmans’ claim has some conduct that survives, the court cannot grant summary adjudication as to the entire cause of action on this basis. When separate wrongful acts or claims are combined into a single cause of action, a party may obtain summary adjudication of a particular claim even though it is not separately pleaded as a separate cause of action. See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855 [one of multiple malpractice acts could be summarily adjudicated]; Edward Fineman Co. v. Superior Court (1998) [defendant could obtain summary adjudication based on statute of limitations as to 23 of 83 forged checks]. Therefore, the court can rule on some of the conduct.

In summary, the court grants summary adjudication only on the following conduct: the harassing emails, sump-pump debris incident, the beeping device incident, and the threat to sue incident. The court denies summary adjudication on the following conduct: the utility closet incident. This ruling does not entirely dispose of the entire cause of action.

G. Second cause of action: intentional infliction of emotional distress

The intentional infliction of emotional distress claim is seemingly premised on Dodos sending harassing emails and impersonating Jackie to the gas utility company. See cross-complaint ¶ 43. However, because this cause of action incorporates earlier allegations (id. ¶ 40), Dodos incorrectly focuses only this type of conduct, notwithstanding Dodos correctly argues in reply that Jackie cannot rely on unpleaded instances of conduct (see reply 6:17-25). Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [“[T]he burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.”].

To sustain an intentional infliction of emotional distress claim, a plaintiff must prove: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780.

Dodos argues that the intentional infliction of emotional distress claim fails because: (1) mere words cannot be “outrageous;” (2) the Weissmans did not suffer any severe emotional distress; and (3) the statute of limitations ran.

First, the court addresses the “outrageous conduct” requirement. A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051. Dodos argues that the emails and impersonation do not amount to outrageous conduct to sustain a claim. Dodos does not cite any specific similar authority for this proposition. Instead, Dodos argues that the emails constitute annoyances and the impersonation of Jackie is mere “childish” conduct. Regarding the impersonation, this argument glosses over key facts as provided in Dodos’ deposition testimony (opposition evidence Ex. 102 at pp. 99-104) that indicate the outrageous nature of what happened that exceeds the bounds of society. Specifically, it is outside the bounds of society to impersonate one’s neighbor without permission to a utility company and lie so that the neighbor would not have gas at home. Regarding the emails and some of the other alleged conduct, the court agrees that although the conduct certainly is unwelcomed, it is not so extreme to satisfy the outrageous conduct requirement, especially when considering emails have limited effect on the recipient unless the recipients opens and reads them. Although the circumstances did not allow for the Weissmans to ignore the emails, they had the power to choose when to open them and how to react to their allegedly inflammatory nature. As previously discussed (see nuisance section), the court can sever certain conduct and grant summary adjudication even if the entire cause of action is not dismissed. Therefore, the court can rule on the emails and any other pleaded non-impersonation conduct (see section V.A.2, supra), which similarly fails to be so outrageous to sustain this claim.

Accordingly, the court grants summary adjudication on the non-impersonation conduct on this basis.

Second, Dodos argues that the Weissmans did not suffer severe emotional distress. Dodos identifies Jackie’s deposition testimony showing that she suffered a little stress, though it was relatively trivial. This evidence is sufficient to shift Dodos’ initial burden as to Jackie’s claim. Jackie shows that there are triable issues of material fact through her deposition testimony and an expert declaration indicating that she suffered severe emotional distress including anxiety. Although the court is liberally construing this evidence for the purposes of this motion, the court notes that at trial Jackie must link the stress only to the conduct sufficiently outrageous to state a claim. In other words, Jackie cannot sustain a claim if linking her emotional distress based generally on Dodos’ filing of this litigation or Dodos’ cumulative conduct. It is important to note that Dodos fails to identify any evidence to shift her initial burden as to Chuck’s claim on this basis. Although Chuck is deceased and no one appears to be pursuing his claims, Dodos is the one affirmatively seeking relief to dismiss his claims and cannot rely on Chuck’s lack of opposition for her to meet her initial burden. Even if Dodos were to meet her initial burden, Jackie’s deposition testimony creates a triable issue of fact because she testified that Dodos’ conduct led to his suicide. Opposition evidence Ex. 103 at pp. 156-158.

Accordingly, the court denies summary adjudication on this basis.

Third, Dodos argues that the statute of limitations ran for this claim.

The statute of limitations for personal injury claims is two years. CCP ; 335.1. This period begins to run when the cause of action accrues. Id., ; 312. Ordinarily, a cause of action “accrues” when, under the substantive law, the wrongful act is committed and the liability arises. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807.

Here, Dodos filed her initial complaint on March 1, 2017. Therefore, any claims based on events that occurred before March 1, 2015 are untimely. However, Dodos incorrectly suggests that all of the conduct that support this cause of action occurred before March 1, 2015. For example, the impersonation incident occurred in December 2016. Additionally, to the extent that the emails are outrageous enough to sustain this claim, the Weissmans[4] received more emails from Dodos within the statute of limitations time period.

While certain actions are indisputably outside the statute of limitations, Jackie proffers evidence of specific events that occurred within the statute of limitations, including the impersonation incident. The court can grant summary adjudication on the unspecified events that occurred before March 1, 2015, but there are remaining events that are not time-barred. Therefore, Dodos’ argument, though technically correct, is mostly meaningless because timely claims remain.

Accordingly, the court grants summary adjudication to the extent that there are claims the occurred outside the statute of limitations.

In summary, the court grants summary adjudication only on any alleged conduct not relating to the impersonation incident and any events that occurred before March 1, 2015. However, this ruling does not entirely dispose of the entire cause of action.

H. Third cause of action: intentional misrepresentation

The intentional misrepresentation claim is premised on Dodos misleading the Weissmans on the rules of their properties, namely that the Weissmans needed her permission before making exterior and external repairs, maintenance, and/or improvements. The alleged misrepresentation is focused only on the installation of six security cameras in the common area. See cross-complaint ¶¶ 24, 50. To the extent that the Weissmans argue that Dodos made a similar representation that led to the 2012 purchase of the property on a belief that they could install a dog run (opposition 16:5-7), the Weissmans do not allege this claim in their cross-complaint and it is otherwise time-barred (see CCP, ; 338).

To sustain a fraud claim, a plaintiff must prove: “(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.” Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.

Dodos argues that the intentional misrepresentation claim fails because: (1) Dodos accurately stated what the CC&Rs require; (2) Dodos’ statement is inactionable opinion; (3) Jackie’s reliance is not justifiable; and alternatively (4) the litigation privilege bars this claim.

First, the court addresses whether Dodos’ representation is false. Though Dodos does not clearly identify the alleged misrepresentation in her separate statement, it is undisputed that Dodos told the Weissmans that the installation of six security cameras in the common area required her permission. The CC&Rs provide that each unit owner has exclusive ownership and possession of one’s own unit subject to some limitations (e.g., windows bounding the unit) and an undivided interest in one-half of the common area. Motion Ex. 1 article II, ;; 2.4-2.5; see also id. article I, ; 1.5 [defining common area]. The original CC&Rs allow a unit owner to make changes to external alterations only if approved. Id. article VI, ; 6.1. The CC&Rs as amended changed this slightly, permitting a unit owner “the individual right to make any additions or changes externally that add to the value of the property in accordance with the building codes of Hermosa Beach.” Id. Ex. 2. Therefore, if the alleged misrepresentation is merely “the Weissmans need Dodos’ permission for any exterior alterations,” then that is indeed false.

However, the court does not stop its analysis there because the actual alleged misrepresentation involves the Weissmans needing permission to install security cameras. Cross-complaint ¶ 24(d). Although the separate statement and no evidence in the record clearly identifies where these cameras were installed, the cross-complaint alleges that the cameras were installed “outside,” which is external to the Weissman Property. Id. 24(e). Although the cameras arguably could provide a security benefit, there is no evidence that they add value to the Weissman Property. Therefore, Dodos meets her initial burden. The Weissmans do not rebut the shifted burden. Jackie is correct that the amendment to the CC&Rs did expand the Weissmans’ authority to make external changes to the Weissman Property. Opposition 16:9-13. But she fails to identify that this allowed the Weissmans to make unapproved external changes only if they add to the property value. Jackie otherwise fails to present any evidence that the cameras increase her property value. The fact that the Weissmans suffered from a later burglary does not otherwise show added value, even when making all reasonable inferences in favor of the Weissmans as the non-moving party. Although she does not do so, Jackie cannot simply make a self-serving claim without any evidence that the security cameras would increase the value. Jackie cannot also rely on legal arguments that reasonable minds may disagree without any evidence. Id. 16:17-18. In making this ruling, the court notes that it does so without weighing the parties’ credibility, which Jackie correctly notes doing so is improper for the purposes of this motion. Id. 16:16-17.

Accordingly, the court grants summary adjudication on this basis.

The court does not need to address Dodos’ other arguments, but the court does so.

Second, Dodos argues that Dodos’ statement is inactionable opinion. Representations of opinion are ordinarily not actionable. See Padgett v. Phariss (1997) 54 Cal.App.4th 1270, 1284. Here, the statement is that the Weissmans needed permission before installing the security cameras. This statement is uncertain because Dodos is not the final arbiter of whether the Weissmans needed permission before installing the security cameras, though as a member of the Association she does have a key role. Therefore, Dodos meets her initial burden to show that this statement is only her opinion. Jackie fails to rebut the shifted burden. Jackie does not identify any applicable exception that representations of opinion are ordinarily not actionable

Accordingly, the court grants summary adjudication on this basis.

Third, Dodos argues that Jackie’s reliance is not justifiable because she read the CC&Rs and did not need to rely on Dodos’ interpretation of them. There is no dispute that Jackie read the CC&Rs, though there is a dispute if Jackie understood their effect considering Dodos’ inconsistent statements. See UMF ¶ 5. The court must examine the evidence in the light most favorable to Jackie as the non-moving party, and by doing so there is at least a triable issue of fact whether there was justifiable reliance. Reading and understanding something are not the same thing. In regards to Chuck’s justifiable reliance, Dodos does not present any evidence showing that there is no justifiable reliance even through his own independent reading of the CC&Rs, which even if proffered does not shift the initial burden for the already stated reasons.

Accordingly, the court denies summary adjudication on this basis.

Finally, Dodos argues that the litigation privilege bars this claim. The court adopts its earlier analysis regarding the litigation privilege discussed in the nuisance section. Here, in short, the alleged misrepresentation is within the context of a communication in preparation or in anticipation of litigation. Therefore, the litigation privilege extends to this conduct and bars the Weissmans’ claim.

Accordingly, the court grants summary adjudication on this basis.

In summary, the court grants summary adjudication on the entire cause of action because Dodos’ statement is not false, Dodos’ statement is inactionable opinion, and the litigation privilege bars this claim.

I. Fourth cause of action: appropriation of likeness

The appropriation of likeness claim is premised on Dodos impersonating Jackie to the gas utility company. See cross-complaint ¶¶ 30, 58-59.

A plaintiff may pursue a common law or statutory appropriation of likeness claim. To sustain a common law claim, a plaintiff must prove: (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97. To sustain a statutory claim pursuant to Civil Code ; 3344, a plaintiff must prove: (1) all the elements of the common law cause of action; (2) knowing use of defendant’s likeness; and (3) direct connection between the alleged use and the commercial purpose. Downing v. Abercrombie & Fitch (9th Cir. 2001) 265 F.3d 994, 1001 (Downing).

Dodos argues that the appropriation of likeness claim fails because: (1) Dodos gained no advantage including a commercial advantage; and (2) Dodos is privileged to appropriate the likeness because she owns the gas lines in as tenants as common and thus she is privileged to stop the gas service.

As a preliminary matter, the court independently notes that Chuck cannot sustain a claim for appropriation of likeness for the use of his wife’s identity.

Accordingly, the court grants summary adjudication on this basis as to Chuck’s claim.

First, Dodos argues that by impersonating Jackie she gained no advantage. Dodos presents evidence to show that the impersonation harmed the Weissmans. Dodos incorrectly focuses on the issue of a “commercial” advantage, which is only required for a statutory claim. Dodos desired to cause the Weissmans’ harm and that action benefited her in a way to provide some other advantage. Indeed, Jackie cites Dodos’ deposition testimony to show that Dodos received “satisfaction” and the impersonation made her “feel good.” Opposition evidence Ex. 102 at pp. 102-104. Therefore, Jackie can still pursue a common law claim. See Downing, supra, 265 F.3d at p. 1001 [“The remedies provided for under California Civil Code ; 3344 complement the common law cause of action; they do not replace or codify the common law.”].

Accordingly, the court denies summary adjudication on this basis.

Finally, Dodos argues that she is privileged to impersonate Jackie. The typical privileges and defenses to this invasion of privacy tort is the First Amendment (i.e., newsworthiness) and justification. Here, Dodos indirectly argues that as a tenant in common with ownership of the gas lines that she has the existing authority or consent to use Jackie’s likeness. Dodos unreasonably tries to stretch an interest in the gas line to allow her to do whatever she wants to do to the gas line whenever she wants. Even if she had unilateral authority to stop the gas service, there is no evidence to show that this authority permits her to impersonate Jackie. Dodos does not otherwise proffer any evidence that Jackie preemptively consented to Dodos acting on her behalf by using her likeness. See motion 24:6-8. Finally, to the extent that Dodos argues that Jackie has unclean hands because Jackie shut off the gas lines first (see id. 24:8-9), the evidence shows that Jackie did it not to harm Dodos, but for fumigation purposes. Therefore, Dodos fails to demonstrate a clean hands defense.

Accordingly, the court denies summary adjudication on this basis.

In summary, the court grants summary adjudication on Chuck’s claim and denies it on Jackie’s claim.

J. Fifth cause of action: breach of CC&Rs

The breach of CC&Rs claim is primarily premised on Dodos (1) sending many annoying emails; (2) making contradictory statements regarding use of the common areas; and (3) violating Civil Code ; 4725 by not agreeing to the installation of video cameras. See cross-complaint ¶¶ 66-69.

First, Dodos argues that the CC&Rs are not intended to regulate all aspects of personal behavior, but instead to restrict behavior relating to the usage of real property. The parties focus on Section 5.1 of the CC&Rs. Section 5.1 is an expansive section that involves general restrictions on uses of an owner’s unit and the common area without obtained consent, including prohibiting noxious or offensive activities: “(f) No noxious or offense activity shall be carried on in any Unit or in the Common Area, nor shall anything be done therein which may be or become an annoyance or nuisance to the other Owners.” Motion Ex. 1 article V, ; 5.1(f). When reading this provision in context with the other provisions (see Civ. Code ; 1647 [“A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates.”]), this restriction is not an all-encompassing “do not annoy other owner” provisions that Jackie suggests, but is focused on use of the common area. Adopting Jackie’s position also would be illogical because the contracting parties would not have intended to allow for fights on almost any issue that might annoy a unit owner. With this understanding in mind, the emails are not carried out in any particular area and are not a nuisance or annoyance with relation to any specific areas.

Accordingly, the court grants summary adjudication on this conduct.

Second, Dodos argues that the CC&Rs or Davis-Stirling Act do not prohibit her from taking contradictory statements of whether a homeowner’s association exists. Jackie does not identify any specific provision that supports this claim. Dodos’ inconsistent positions might be relevant to other issues, but there is no reason why the inconsistency supports a breach of the CC&Rs.

Accordingly, the court grants summary adjudication on this conduct.

Third, Dodos argues that Civil Code ; 4725 does not apply to the alleged conduct of not agreeing to the Weissmans’ request to install video cameras. Civil Code ; 4725 prohibits certain restrictions on the installation of the video or television antennas or satellite dishes. The statute does not involve security or video cameras. Additionally, Civil Code ; 4725 invalidates restrictive covenants and does not apply to individuals.

Accordingly, the court grants summary adjudication on this conduct.

The court grants summary adjudication on the issues as specifically identified in the moving papers. The court denies without prejudice Jackie’s improper request to amend her cross-complaint to add additional conduct that breaches the CC&Rs. Opposition 9:3-22. To the extent that Jackie seeks to allege more conduct, she must proceed properly through a separate noticed motion that the parties will brief.

In summary, the court grants summary adjudication on the entire cause of action and denies without prejudice Jackie’s request to amend her cross-complaint.

K. Sixth cause of action: declaratory relief

The declaratory relief claim is premised on a desire to know the parties’ respective rights and obligations based on the CC&Rs, specifically seeking judicial determination that: (1) the term “house” in the CC&Rs refers to each unit owner’s individual unit; (2) the CC&Rs do not require the other owner’s approval before altering the exterior of one’s own unit; (3) the term “driveway” means the external concrete area used for vehicle entry and exit; (4) the Weissmans’ unspecified external repairs to the Weissman Property added value; and (5) the Weissmans’ unspecified prospective repairs to the Weissman Property have a presumption of adding value and therefore comply with the CC&Rs. Cross-complaint ¶ 74.

CCP ; 1060 provides that a person may bring an action for declaratory relief if he or she “desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property.” The validity of an instrument or contract is a proper subject of declaratory relief. Ibid. A request for declaratory relief may be brought alone or with other relief. See ibid.

To state a declaratory relief claim, the plaintiff must allege a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the party’s rights or obligations. Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909. A claim for declaratory relief is improper if it seeks redress only of past wrongs. Moore v. Wells Fargo Bank, N.A. (2019) 39 Cal.App.5th 280, 295 [“[T]here is no basis for declaratory relief where only past wrongs are involved.”].

Dodos makes several arguments and the court rules on them in short order as follows.

The court grants summary adjudication on the request to clarify what “house” and “driveway” mean because the parties do not dispute this issue.

The court denies summary adjudication on the request to clarify whether the CC&Rs do not require the other owner’s approval before altering the exterior of one’s own unit because the parties dispute the meaning of the term “unit.” Opposition 20:6-7.

The court grants summary adjudication on the request to find that the Weissmans’ unspecified external repairs to the Weissman Property added value because this is a redress for past conduct.

The court grants summary adjudication on the request to find that the Weissmans’ unspecified prospective repairs to the Weissman Property have a presumption of adding value. The CC&Rs do not provide for any “presumption” to be created and each alteration must be assessed individually.

In summary, the court grants summary adjudication on all requests for declaratory relief except for whether the CC&Rs do not require the other owner’s approval before altering the exterior of one’s own unit. Cross-complaint ¶ 74(b). However, because one issue survives, the court denies summary adjudication as to the entire cause of action.


[1] On July 31, 2019, the court permitted Dodos to file the TAC as the operative pleading.

[2] Jackie disputes UMF ¶ 15, but the supporting evidence still shows that Dodos stopped emailing Jackie directly in September 2014. Dodos’ continuous to emails to Chuck does not otherwise create a dispute on this issue.

[3] It is a little unclear when exactly this incident occurred because the pleading is unclear. Compare cross-complaint 24(d) [no date given] with 24(f) [noting a “few months later, in June 2014” which might place the threat to sue within the statute of limitations]. However, Jackie fails to rebut Dodos’ identification of the timing of this event (see motion 17:15-16) and the court therefore treats this as a concession on this point.

[4] Notably, Dodos stopped emailing Jackie in September 2014, though she continued to email Chuck. UMF ¶¶ 14-15. Dodos could presumably argue that this alleged conduct was not targeted at Jackie and therefore cannot sustain a claim based on the emails. However, the court can reasonably infer in Jackie’s favor that Dodos sent Chuck the emails knowing that Jackie would still be harmed by them through Chuck’s distress and/or Jackie’s awareness and/or review of occasional emails.



Case Number: ****1897    Hearing Date: August 25, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARIA DODOS individually and as trustee of the Maria DODOS 2014 TRUST,

Plaintiff,

Case No.:

****1897

vs.

[Tentative] RULING

JACKIE WEISSMAN, et al.,

Defendants.

Hearing Date: August 13, 2020

Moving Parties: Defendant Jackie Weissman

Responding Party: Plaintiff Maria Dodos individually and as trustee of the Maria Dodos 2014 Trust

Motion for Summary Judgment or, in the alternative, Summary Adjudication of Issues

The Court considered the moving, opposition, and reply papers. As mentioned below (see Section III(B)(1), infra), the Court refuses to consider Plaintiff’s notice of errata.

RULING

The Court DENIES Defendant Jackie Weissman’s motion for summary judgment.

The Court GRANTS IN PART Defendant’s the motion in the alternative for summary adjudication as further explained below.

Specifically, the Court DENIES summary adjudication on the: (1) entire first cause of action; (2) second cause of action; (3) third cause of action; (4) fifth cause of action; (5) seventh cause of action; and (6) eighth cause of action.

The Court GRANTS summary adjudication on the first cause of action only for: (1) any conduct alleged to violate CC&Rs sections 2.4., 3.4., 5.1(a), 5.3, and 6.1; and (2) the following specific conduct alleged to violate CC&Rs section 5.1(b): (a) leaving tire marks and oil spots on the driveway; (b) parking their cars in the guest parking space, effectively blocking Plaintiff from backing out of her own garage; (c) poorly patching the driveway causing cracks; (d) using the property as a business; (e) misusing Plaintiff’s hose; and (f) causing debris to clog the sump screen.

The Court GRANTS summary adjudication on the fourth cause of action in its entirety.

I. BACKGROUND

This is action arises out of a homeowner dispute among next-door residents belonging to a two-unit common interest development. During the relevant time period, Plaintiff Maria Dodos individually and as trustee of the Maria Dodos 2014 Trust (“Plaintiff”) lived at 1108 Loma Drive, Unit #2, Hermosa Beach, California (“Dodos Property” or “1108 Loma”), and Defendant Jackie Weissman (“Defendant”) and her husband Chuck Weissman (“Chuck”) (collectively the “Weissmans”), lived at 1106 Loma Drive, Unit #1, Hermosa Beach, California (“Weissman Property” or “1106 Loma”).

The Weissman Property faces the street and the Dodos Property is behind the Weissman Property. The two properties share a common driveway.

Both properties are part of the common interest development (the “Development”) and are governed by The 1106 & 1108 Loma Homeowners Association (the “Association”)—although it was never formed—and certain governing documents including the covenants, conditions, and restrictions (the “CC&Rs”) and a subsequent amendment.

Plaintiff alleges that Defendant and Chuck, who died in January 2019, breached the CC&Rs for various prohibited reasons, including by building structures in the common area for their own private use, building and replacing gates in the common area that restricted Plaintiff’s use of the common area, building and replacing a utility cabinet door, staining a fence that also caused damage to the common area, removing and/or killing plants in the common area, placing security cameras and signs around the property, attempting to fix cracks in a shared driveway, allowing their animals to roam free in the common area, and threatening and harassing Plaintiff, her guests, and people hired to perform work on the Dodos Property.

On March 1, 2017, Plaintiff filed her initial complaint.

On November 13, 2017, the Weissmans filed their cross-complaint against Plaintiff and Roes 1 to 60 asserting six causes of action for: (1) continuing private nuisance; (2) intentional infliction of emotional distress; (3) intentional misrepresentation; (4) appropriation of likeness; (5) breach of CC&Rs; and (6) declaratory relief.

On July 17, 2019,[1] Plaintiff filed her operative third-amended complaint (“TAC”) against Defendant and Does 1 to 25: asserting eight causes of action: (1) breach of covenants, conditions, and restrictions; (2) breach of written contract; (3) breach of oral contract; (4) specific performance; (5) negligence; (6) intentional infliction of emotional distress; (7) nuisance; and (8) declaratory relief. Plaintiff does not assert any claims against Chuck’s estate.

On May 20, 2020, Defendant filed a motion[2] for summary judgment or in the alternative summary adjudication, involving all of Plaintiff’s claims except for the sixth, to which the Court sustained a demurrer with leave to amend and Plaintiff did not amend that claim.

On July 30, 2020, Plaintiff opposed Defendant’s motion.[3]

On August 7, 2020, Defendant filed a reply.

On August 11, 2020, Plaintiff filed a notice of errata, which seeks to authenticate the exhibits, i.e., “Attached to Plaintiff’s Compendium of Exhibits as Exhibit [] are true copies of . . . .”

The jury trial is scheduled for February 3, 2021.

Although not subject of this ruling, on June 11, 2020, Plaintiff filed a motion for summary adjudication on the Weissmans’ cross-complaint against her. That motion is scheduled for a hearing on November 10, 2020.

II. LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” Code Civ. Proc., ; 437c, subd. (p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Ibid. “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal.App.4th at 467; Code Civ. Proc., ; 437c, subd. (p)(2). “‘An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1014, citation omitted.

III. EVIDENTIARY OBJECTIONS

The parties object to portions of the other parties’ evidence. In total, Plaintiff asserts 43 objections and Defendant asserts 98 objections.

Excessive objections regarding matters that are not legitimately in dispute and pertinent to the disposition of summary judgment motions can waste the Court’s time that can merit sanctions. See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532-533.

The Court advises the parties that they should not engage in a similar practice with their opposing and reply papers for Plaintiff’s pending motion for summary adjudication, currently scheduled for a hearing on November 10, 2020. To the extent that the parties do so, the Court advises them that they “should specify the evidentiary objections they consider important, so that the court can focus its rulings on evidentiary matters that are critical in resolving the summary [adjudication] motion.” Id. at p. 533.

A. Plaintiff’s objections to Defendant’s evidence

Plaintiff objects to the Declaration of Jackie Weissman. Plaintiff’s objections are not numbered in violation of the California Rules of Court. See Cal. Rules of Court, rule 3.1354(b) [“Each written objection must be numbered consecutively . . . .”]. Nevertheless, the Court rules on the objections as follows:

Your Honor, I put the objections on separate lines so it is easier for you to read and/or revise if you disagree. (Alternatively, you can shorten them by grouping like-minded objections. I think it is better not to do so, but if you do so, it does affect the numbering of footnotes, which some refer to earlier ones. In the event you change that, those footnotes needed to updated.

Regarding Plaintiff’s objections, the vast majority are baseless (e.g., Defendant was directly involved so she has foundation and personal knowledge and Plaintiff’s statements are admissible hearsay as a party’s own statement pursuant to Evidence Code section 1220 (though Defendant incorrectly argues in reply that this is admissible hearsay pursuant to a “declaration against interest” pursuant to Evidence Code section 1230 ). Most of the objections can be characterized as that Plaintiff has a different opinion than what Defendant says that happened. The ones that are sustained involve improper legal conclusions.

(1 – referring to Decl. ¶ 5) overruled;

(2 – referring to Decl. ¶ 10) sustained as to what the CC&Rs require (legal conclusion) and overruled as to balance;

(3 – referring to Decl. ¶ 16) overruled;

(4 – referring to Decl. ¶ 17) overruled;

(5 – referring to Decl. ¶ 18) overruled;[4]

(6 – referring to Decl. ¶ 19) overruled;

(7 – referring to Decl. ¶ 20) overruled;

(8 – referring to Decl. ¶ 21) overruled;

(9 – referring to Decl. ¶ 24) overruled;

(10 – referring to Decl. ¶ 26) overruled;

(11 – referring to Decl. ¶ 31) overruled;

(12 – referring to Decl. ¶ 34) overruled;

(13 – referring to Decl. ¶ 40) overruled;

(14 – referring to Decl. ¶ 42) overruled;

(15 – referring to Decl. ¶ 46) overruled;

(16 – referring to Decl. ¶ 49) overruled;

(17 – referring to Decl. ¶ 51) overruled;

(18 – referring to Decl. ¶ 53) overruled;

(19 – referring to Decl. ¶ 58) sustained (legal conclusion);

(20 – referring to Decl. ¶ 76) sustained as to whether the foundation caused the recent cracks (improper opinion) and overruled as to balance (i.e., that a neighbor caused the cracks in some way);

(21 – referring to Decl. ¶ 83) sustained (legal conclusion);

(22 – referring to Decl. ¶ 87) overruled;

(23 – referring to Decl. ¶ 89) sustained (legal conclusion);

(24 – referring to Decl. ¶ 94) overruled (proper opinion);[5]

(25 – referring to Decl. ¶ 95) sustained (legal conclusion);

(26 – referring to Decl. ¶ 111) overruled;

(27 – referring to Decl. ¶ 123) sustained (legal conclusion);

(28 – referring to Decl. ¶ 133) sustained (legal conclusion);

(29 – referring to Decl. ¶ 135) sustained (legal conclusion);

(30 – referring to Decl. ¶ 139) sustained as to whether Defendant did not obstruct the common area (legal conclusion) and overruled as to balance;

(31 – referring to Decl. ¶ 143) overruled;

(32 – referring to Decl. ¶ 144) sustained (legal conclusion);

(33 – referring to Decl. ¶ 148) sustained as to whether damages were suffered (legal conclusion) and overruled as to balance (i.e., that signs were removed as of April 8, 2020);

(34 – referring to Decl. ¶ 149) overruled;

(35 – referring to Decl. ¶ 152) overruled;

(36 – referring to Decl. ¶ 153) overruled;

(37 – referring to Decl. ¶ 154) overruled;

(38 – referring to Decl. ¶ 157) sustained (legal conclusion);

(39 – referring to Decl. ¶ 158) sustained (legal conclusion);

(40 – referring to Decl. ¶ 162) sustained (legal conclusion);

(41 – referring to Decl. ¶ 164) sustained (legal conclusion);

(42 – referring to Decl. ¶ 166) sustained (legal conclusion); and

(43 – referring to Decl. ¶ 168) sustained (legal conclusion).

B. Defendant’s objections to Plaintiff’s evidence

Defendant objects to portions of Plaintiff’s evidence, specifically exhibits and portions of the Declaration of Maria Dodos.

The Court rules on the objections as follows:

1. Referring to exhibits:

(1 – referring to Exhibit E) sustained (lack of authentication);

(2 – referring to Exhibit H) sustained (lack of authentication);

(3 – referring to Exhibit I) sustained (lack of authentication);

(4 – referring to Exhibit J) sustained (lack of authentication);

(5 – referring to Exhibit K) sustained (lack of authentication);[6]

(6 – referring to Exhibit L) sustained (lack of authentication);

(7 – referring to Exhibit M) sustained (lack of authentication);

(8 – referring to Exhibit N) sustained (lack of authentication);

(9 – referring to Exhibit O) sustained (lack of authentication); and

(10 – referring to Exhibit P) sustained (lack of authentication).

Plaintiff only proffers two declarations: the Declaration of (1) Maria Dodos and (2) Paul H. Deese, i.e., Plaintiff’s counsel. Only the Deese Declaration provides sufficient facts to authenticate exhibits, and it only does so for Exhibits D and F. The remaining exhibits might be authentic, especially if a person with knowledge established the relevant foundation in a discovery response or deposition testimony (see opposition Ex. F at pp. 4-5 [photographs marked as exhibits]). However, Plaintiff does not explicitly authenticate the exhibits through her declaration. Plaintiff cannot indirectly authenticate the exhibits. See e.g., opposition Ex. K [signed 2016 agreement] and Dodos Decl. ¶¶ 85-86 [discussion of a signed agreement but no discussion whether an exhibit is that agreement]. Although the Court must liberally construe the opposition declarations, the Court can only do so regarding the evidence if it is admissible. Code Civ. Proc., ; 437c, subd. (d); see also Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.

However, Plaintiff, though her notice of errata filed on August 11, 2020, presumably contends that the Court should not sustain the objections to the exhibits as the Court ruled above because the notice of errata properly authenticates the exhibits. Defendant did not file an opposition to the notice of errata, though she presumably will argue at the hearing that the Court should not consider it. Code of Civil Procedure section 437c, subdivision (b)(2) requires opposition papers to be filed and served 14 days before the hearing, unless the court orders otherwise for good cause. See also Cal. Rules of Court, rule 3.1300 [broad discretion to refuse to consider late papers without good cause]. First, the Court notes that the notice of errata is signed by Plaintiff’s counsel and not Plaintiff. A substantive change in the declaration, which now as modified states that approximately 100 pages of exhibits are true copies, requires a new certification. See Code Civ. Proc., ; 2015.5. But even if Plaintiff provided another certification, the Court declines to consider the notice of errata. The notice of errata does not merely correct a typographical error or make a minor, unsubstantial change to her opposition. Defendant prepared her reply arguing and expecting Plaintiff’s failure to authenticate the exhibits would be fatal, and her reply does not substantively address the exhibits’ contents. By admitting these exhibits, the Court would greatly prejudice Defendant, who complied with her statutory requirements. See Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 321. Finally, Plaintiff does not otherwise explain any reason why her declaration does not have the proper authentication and therefore it is not in the interests of justice to consider the notice of errata. See Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 657 [“upload error”]. Plaintiff does not satisfy the good cause requirement for the Court to consider the notice of errata.

Nevertheless, the fact that the exhibits are inadmissible does not automatically render portions of the Dodos Declaration inadmissible. Certainly, a declarant can still state a fact based on personal knowledge and appropriate foundation without any supporting exhibit, e.g., “the traffic light was green” even if no photo or some other exhibit exists supporting that factual claim. For example, in this situation, Plaintiff can still claim there was a plastic tarp in the dog run even if there is no admissible photo of the tarp (opposition Ex. 4). See reply 3:18-19 [Defendant’s argument on this theory discussing UMF ¶ 51]. As another example, Plaintiff could still discuss the nature of the parties’ written agreement even if the written agreement is not provided. Whether the agreement is necessary could likely involve a weighing of credibility, i.e., Defendant argues the Court should find Plaintiff’s factual claims incredible without some supporting documentation, but that exercise is improper in a summary judgment motion.

Similarly, and relevant to many objections below, Plaintiff can make a factual claim, e.g., the front yard common area is cramped, even when Defendant provides a photo exhibit that according to Defendant’s interpretation shows the opposite. A photograph can provide different, reasonable interpretations from which conflicting inferences may be drawn. Defendant’s factual interpretation may be the more reasonable interpretation whereby Plaintiff’s factual claim may have less evidentiary weight. However, even if the Court can evaluate the evidentiary weight in this motion—and to be clear the Court cannot—that conclusion does not necessitate a sustained objection. See objection no. 17 [the photo shows a smaller area that can make Plaintiff feel cramped even if there is still access for Plaintiff]. The fact that both sides interpret something differently goes to the weight, not admissibility, and does not require the Court to sustain an objection.

2. Referring to the Dodos Declaration:

Your Honor, I put the objections on separate lines so it is easier for you to read and or revise if you disagree. (Alternatively, you can then shorten them by grouping like-minded objections. I don’t think that this is the best option because there are many different rulings and these rulings are more critical, so an easier to read format is better.)

(11) overruled;

(12) overruled;

(13) overruled;

(14) overruled;

(15) sustained (legal conclusion);

(16) overruled;

(17) overruled;

(18) sustained as to why the Weissmans decided to install AstroTurf (speculation) and overruled as to balance;

(19) overruled;

(20) overruled;

(21) overruled;

(22) sustained as to whether Plaintiff gave permission for a taller wooden gate (sufficient[7] contradiction of prior sworn deposition testimony) and overruled as to balance;

(23) sustained (sufficient[8] contradiction of prior sworn deposition testimony);

(24) overruled;

(25) overruled (the cited testimony refers to a key for the back gate, not the front gate);

(26) overruled;

(27) sustained (sufficient[9] contradiction of prior sworn deposition testimony);

(28) overruled;

(29) sustained as to whether “[t]he gate was built incorrectly” (improper opinion) and overruled as to balance;

(30) overruled;

(31) overruled (the cited testimony refers to a key for the back gate, not the front gate);

(32) overruled as to hearsay objection and overruled as to remainder even though Plaintiff does not dispute UMF ¶ 64 [“Jackie has not spoken to Dodos in person or on the telephone since July 2014, at Dodos’ request.”], because the Court can consider all papers submitted, and when doing so, the Dodos Declaration ¶ 29’s contradiction of this fact cures the concession of this critical fact[10] (see Leep v. American Ship Mgmt., LLC (2005) 126 Cal.App.4th 1028, 1042-1043 [J. Turner concur. opn.]);

Your Honor, I would especially note that objections 32, 33, and 83 (all related) are incredibly difficult to rule on, though I erred on the side of the nonmoving party’s declaration even if the separate statement for some reason concedes this point.

(33) overruled;

(34) overruled;

(35) overruled;

(36) overruled;

(37) overruled (proper lay opinion);

(38) overruled (sufficient[11] personal knowledge);

(39) overruled;

(40) sustained as to why the Weissmans removed the plants (speculation) and overruled as to balance (i.e., they could not maintain the planter);

(41) overruled (the apparent concession to UMF ¶ 64, if credited, occurred after this statement)

(42) overruled (sufficient[12] foundation for Plaintiff’s opinion that she is a good gardener and could take care of the planter);

(43) overruled;

(44) overruled;

(45) sustained as to whether the only option is to replace the driveway (hearsay), but overruled to the words’ effect on Plaintiff;

(46) sustained (speculation);

(47) sustained as to whether the security cameras constitute a “nuisance” (legal conclusion) and overruled as to balance;

(48) overruled;

(49) sustained as to what Spectrum told Plaintiff (hearsay) and overruled as to balance;

(50) sustained as to what the contractor told Plaintiff (hearsay) and overruled as to balance;

(51) sustained as to what the contractor told Plaintiff (hearsay) and overruled as to balance;

(52) sustained (speculation – there is no foundation showing what the cameras can actually see, even if the cameras are everywhere);

(53) overruled;

(54) overruled;

(55) overruled (proper opinion);[13]

(56) overruled (the apparent concession to UMF ¶ 64, if credited, still does not rule out that this communication occurred via email or that Chuck communicated this statement);

(57) overruled (mischaracterization of TAC’s allegations);

(58) overruled (the apparent concession to UMF ¶ 64, if credited, still does not rule out that this communication occurred via email or that Chuck communicated this statement);

(59) overruled (mischaracterization of TAC’s allegations);

(60) overruled (the apparent concession to UMF ¶ 64, if credited, still does not rule out that this communication occurred via email or that Chuck communicated this statement);

(61) overruled;

(62) overruled;

(63) overruled;

(64) overruled (the apparent concession to UMF ¶ 64, if credited, still does not rule out that this communication occurred via email or that Chuck communicated this statement);

(65) overruled;

(66) overruled (the apparent concession to UMF ¶ 64, if credited, still does not rule out that this communication occurred via email or that Chuck communicated this statement);

(67) sustained as to whether the Weissmans have the responsibility to rectify a contractor’s problem (legal conclusion) and overruled as to balance;

(68) overruled (the apparent concession to UMF ¶ 64, if credited, still does not rule out that this communication occurred via email or that Chuck communicated this statement);

(69) sustained as to whether the attempt was “negligent” (legal conclusion) and overruled as to balance;

(70) overruled;[14]

(71) overruled;

(72) overruled;

(73) overruled;

(74) sustained as to what Terminix and the gas company told Plaintiff (hearsay) and overruled as to balance;

(75) sustained as to what the gas company told Chuck (hearsay) and overruled as to balance;

(76) sustained as to what the Weissmans knew about who turned off the gas (speculation) and overruled as to balance;

(77) sustained as to why the Weissmans removed the soil and plants (speculation) and overruled as to balance (i.e., they could not maintain the plants);

(78) overruled;

(79) overruled;

(80) overruled;

(81) overruled;

(82) sustained as to whether the Weissmans knew “everything [Plaintiff] was doing” (speculation) and overruled as to balance (i.e., Weissmans would come and monitor Plaintiff’s progress);

(83) overruled for the same reasoning as ruling to objection no. 32;

(84) overruled;

(85) overruled;

(86) sustained (legal conclusion);

(87) overruled;

(88) sustained (hearsay);

(89) overruled;

(90) sustained as to whether Plaintiff gave permission for a taller wooden gate (sufficient[15] contradiction of prior sworn deposition testimony) and overruled as to balance;

(91) sustained (legal conclusion);

(92) sustained as to whether the agreement constitutes a valid contract (legal conclusion) and overruled as to balance (i.e., the parties negotiated some agreement and Plaintiff did not observe anything suggesting Defendant felt compelled to sign);

(93) sustained (legal conclusion);

(94) sustained (lack of foundation);

(95) overruled;

(96) sustained as to whether the conduct constitutes a nuisance (legal conclusion) and overruled as to balance (i.e., the conduct’s effects in obstructing Plaintiff’s use);

(97) sustained as to whether the conduct breached the CC&Rs (legal conclusion), overruled as to whether it affected property values (proper opinion),[16] and overruled as to balance (i.e., the conduct’s effects in affecting Plaintiff’s health); and

(98) sustained (legal conclusion).

IV. FACTS

A. Overview of the parties’ filed separate statements

As a preliminary matter, Plaintiff does not dispute many facts in Defendant’s separate statement of undisputed material facts (“UMF”) that span across seven issues. Defendant states 176 undisputed facts, all of which Defendant repeats across the multiple issues. (In other words, Defendant uses the same 176 undisputed facts and repeats them verbatim for each issue.) However, as it becomes clear below, the parties dispute many facts involving the Weissmans’ conduct and whether the Weissmans had permission to act in certain ways because the CC&Rs authorized their actions and/or Plaintiff consented to their actions.

Plaintiff disputes UMF ¶¶ 5, 7, 10-11, 13, 17-18, 20-21, 24, 30-38, 43-48, 50-51, 53-56, 58-61, 63, 67, 70, 72-76, 79-81, 83-86, 90-92, 95, 100-103, 106-138, 140, 142, 144, 146-147, 149, 154-155, 158, 160-161, 163, 168-174, and 176.

Defendant’s reply discusses at length why these disputes are not true, genuine, or supported by the evidence, though Defendant does not support her arguments with citations to the evidence. See reply 1:19-9:21.

The Court rejects the majority of Defendant’s arguments on this issue, but does credit some as explained by certain evidentiary rulings above and the discussion below. Because the Court must make all inferences reasonably deducible from the evidence in Plaintiff’s favor as the nonmoving party, the Court finds that there is a genuine factual dispute on nearly all issues, except as noted below.

Finally, in her reply, Defendant notably does not respond at all to any of Plaintiff’s statement of additional undisputed facts (“SSUF”). Plaintiff’s SSUF contains 42 facts, all of which are repeated across the multiple issues.

B. Overview of the properties’ layout and restrictions

Plaintiff has owned 1108 Loma Drive, which is part of a common interest development with real property located at 1108 Loma Drive, since May 2001, and the Weissmans have owned the neighboring unit 1106 Loma Drive since January 2012. UMF ¶¶ 1-2.

The Weissman Property faces the street and the Dodos Property is behind the Weissman Property. Id. ¶ 14; see also Weissman Decl. Ex. 4 [drawing of properties]. To the right of the front of the Weissman Property is a common driveway that provides access to the back of the properties. UMF ¶ 15. There is a grass patch in the front of the Weissman Property that is a common area. Id. ¶ 17; see also Weissman Decl. Ex. 5 [photograph of the grass area].

The CC&Rs and its subsequent amendment creates certain rights and restrictions on use for the individual units and common area. Id. ¶¶ 3-8.

There has been no homeowners’ association, thought the parties dispute whether the CC&Rs require it. Id. ¶ 10. The Weissmans believe the CC&Rs require a homeowners’ association and have requested Plaintiff to form and participate one, but Plaintiff has refused to do so. Id. ¶¶ 10-11.

Plaintiff commenced this action alleging certain breaches of the CC&Rs and other misconduct. The parties generally dispute what occurred as discussed further below.

C. The Weissmans’ construction, maintenance, and use involving the properties

There are many specific instances of construction, maintenance, and use relevant to this action. The Court addresses them separately in the order as they appear in the separate statement.

1. The grass area in front of the Weissman Property – construction of a stone wall and removal of plants and grass with AstroTurf installed as a replacement

The Weissmans had dogs and Plaintiff gave them permission to have dogs on the property. Id. ¶ 19. The parties dispute[17] whether the Weissmans requested to build a wall and gate in front of 1106 Loma to use as a “dog run” for their dogs and whether Plaintiff consented to that request. Id. ¶¶ 18, 20, 35.

The Weissmans originally intended to construct a stone wall and a gate around the small patch at the front of their property to use a dog run. Id. ¶ 22.

In May 2012, the Weissmans constructed the stone wall. Id. ¶ 26; see also Weissman Decl. Ex. 6 [photograph of stone wall]. The parties dispute whether Plaintiff observed this construction as it was ongoing. UMF ¶ 26. Plaintiff did not complain about the wall or try to prevent its final construction. Ibid. The Weissmans decided against using this area as a dog run because they could not install a dog door. Id. ¶¶ 22-23.

The parties dispute whether the construction of the wall and the placement of a large urn obstruct access to a common area. Id. ¶ 28.

The Weissmans removed grass and plants in this enclosed area, and replaced them with AstroTurf. Id. ¶ 30. Although Plaintiff did not object during the installation of the AstroTurf, the Weissmans did so without Plaintiff’s knowledge that they would be doing so in this specific area. Id. ¶ 31.

2. The side walkway to the left of the Weissman Property – installation of a dog run, a replaced front wooden gate, and a new metal back gate later replaced by a higher wooden gate

After the Weissmans could not build the dog run in the grass area in front of their property as mentioned above, they decided to try to make a dog run on the side of their property. Id. ¶ 35. Plaintiff agreed to the construction of a dog run at first, though the parties dispute whether this area was to be the “narrow strip of land which is a common area to the left of 1106 Loma” or “the narrow common area adjacent to the Weissman Property.” Id. ¶¶ 35-36. The parties dispute whether Plaintiff later tried to withdraw her consent to the dog run so that she could have access to the common area. Id. ¶¶ 50, 54-56.

The construction of the dog run involved two gates: a gate facing the street, which the Weissmans replaced, and the construction of a new metal gate in the back, which the Weissmans later replaced with a higher gate made out of wood. In other words, the dog run was enclosed by a front gate and a back gate. Plaintiff alleges that Defendant committed misconduct with both of these gates.

The Weissmans replaced the existing tan gate in the front that faced the street with a new gate. Id. ¶ 40; see also Weissman Decl. Ex. 8 [photograph of original gate] and 9 [photograph of newly installed gate]. The parties dispute whether: (1) the Weissmans requested to build this replacement gate and whether Plaintiff consented to that request (UMF ¶ 43); (2) Plaintiff observed this construction as it was ongoing (id. ¶ 43); (3) the gate is “poorly constructed” (id. ¶ 45); and (4) the Weissmans eventually gave Plaintiff a key to this gate (id. ¶¶ 46-48).

Plaintiff consented to the Weissmans’ request to install a low metal gate at the back of the dog run. Id. ¶ 49. (This completed the dog run area.)

In July 2014, after a break-in at their property, the Weissmans decided to replace the back gate with a higher wooden gate. Id. ¶ 57. The Weissmans requested to build this higher gate and Plaintiff consented to that request.[18] Id. ¶¶ 58-59. The parties discussed the replacement gate including the sample of the stain of the new gate. Id. ¶ 59. The parties dispute whether the Weissmans heeded to Plaintiff’s request to match the color and style of the gate to the surrounding property. Id. ¶¶ 60-61; see also Weissman Decl. Ex. 10 [photograph of current back gate]. Plaintiff received a key to the back gate shortly after the gate was installed, though the parties dispute whether Plaintiff has access to the dog run area through the front gate. Id. ¶¶ 62-63.

Finally, the parties dispute whether there was a plastic tarp in the dog run area. Id. ¶ 51.

3. Planter near the Weissman Property

There are two planters near the respective properties. Id. ¶¶ 68-69.

When Defendant moved into the property, the parties agreed to take care of the plants in their respective planters. Id. ¶ 70. The planter near the Weissman Property originally only had rocks in it, but Defendant replaced the rocks with soil and plants, which would die. Id. ¶¶ 71-72.

Plaintiff complained about the dirt from this planter, which would clog the sump pump, though the parties dispute the cause of the clogging. Id. ¶ 73. After this incident, the Weissmans removed the dirt and plants in the planter, replacing them with rocks and succulents. Id. ¶ 74.

The parties dispute[19] whether they made an oral agreement in December 2016 regarding the contents of the planters. Id. ¶¶ 74, 170.

4. Cracks in the shared driveway

There were cracks in the common driveway shared by the parties. Id. ¶ 79.

Chuck attempted to patch the cracks, though Plaintiff asked Chuck to modify his work because of alleged errors. Id. ¶¶ 80-81.

The neighbor whose construction work caused the cracks agreed to replace the entire driveway in June 2020. Id. ¶ 82.

5. Tire marks and oil spots in the shared driveway

The Weissmans’ cars left tire marks and oil spots in the parties’ shared driveway. Id. ¶ 83. The Weissmans tried to clean up these spots, but Plaintiff often did so without saying anything to the Weissmans. Ibid. Eventually, Plaintiff asked Chuck if the Weissmans could clean up future oil spots and the Weissmans did so without new occurrences. Ibid.

6. Replacement of utility door attached to the Weissman Property

The Weissmans replaced the door and hardware on a small utility door attached to their property. Id. ¶¶ 94, 96; see also Weissman Decl. Ex. 15 [photograph of the door].

The parties dispute whether there is anything wrong with the door. UMF ¶ 97.

7. Staining of fence and stain spills

There is a fence surrounding both properties and the parties replaced it in July 2013. Id. ¶ 99.

The Weissmans decided to stain the fence. Id. ¶ 100. The parties dispute whether Plaintiff agreed to the decision to stain the fence. Id. ¶ 101. Nevertheless, the parties discussed the color of the stain and Plaintiff selected the color. Id. ¶ 102. The Weissmans used a contractor for this work and the Weissmans and Plaintiff hired the contractor. Id. ¶ 103. The parties dispute whether they hired a licensed contractor, though there is no indication that Plaintiff requested the contractor to be licensed. Ibid.; see also Dodos Decl. ¶ 53.

The contractor stained the fence, though Plaintiff disputes whether her selected color is the fence’s color, the finish is the same, and if it was done well. UMF ¶¶ 103, 106; see also Weissman Decl. Ex. 16 [photograph of the fence].

The contractor who did this work spilled some stain on the properties. UMF ¶ 107. The parties agree that the stain was spilled on and around the driveway, though Plaintiff claims that the stain was spilled also on the bricks and her plants. Ibid. The parties dispute whether all the stain spills were cleaned and who is responsible for making the soil toxic and killing Plaintiff’s plants. Id. ¶¶ 107-108.

The parties dispute whether the Weissmans agreed to restore the fence. UMF ¶ 109.

8. Use of the Weissman Property as a business address

The parties dispute whether Chuck used the Weissman Property as his business address. Id. ¶¶ 111-112.

9. Use of Plaintiff’s garden hose

Plaintiff allowed the Weissmans to use her garden hose. Id. ¶¶ 121-122. The parties dispute whether the Weissmans complied with Plaintiff’s requirements for use, i.e., setting it back on the “spray” setting, and whether Defendant damaged the hose by letting it run. Id. ¶¶ 121-125.

10. Debris in the sump pump

As mentioned above in the discussion regarding the planter, the parties dispute whether the Weissmans caused and allowed debris to fall into the sump pump, or whether the clogging of the sump screen occurred because of a heavy rain. Id. ¶¶ 126-128.

11. Plaintiff’s modifications to the common areas

The parties dispute whether Plaintiff made major modifications to the common area without consulting with the Weissmans, including removing a large tree and replacing pavers. Id. ¶¶ 135-137. Additionally, Plaintiff repainted her home without speaking to the Weissmans. Id. ¶ 138.

12. The Weissmans’ dogs in the common area

The Weissmans dogs often were in the common area, including in the dog run. Id. ¶ 155. The parties dispute whether Plaintiff consented to the dog run. See Section IV(C)(2), supra [discussing UMF ¶¶ 35-36, 50, 54-56].

13. The Weissmans’ use of guest parking space

The Weissmans intentionally left their car parked partially out of the guest parking space and within the main common area driveway, blocking Plaintiff’s ingress/egress to her parking space. SSUF ¶ 24 [not disputed by Defendant].

D. The Weissmans’ harassing or threatening conduct

There are many specific instances of harassing or threatening conduct relevant to this action. The Court addresses them separately in the order as they appear in the separate statement.

1. The installation of security cameras and signs

After a break-in at their property, the Weissmans decided to install some surveillance cameras, though the parties dispute whether they intended to use the cameras to deter crime or monitor and harass Plaintiff. UMF ¶ 85. In any event, the parties dispute whether the Weissmans used the cameras to monitor and harass Plaintiff regardless of the original intention. Id. ¶ 87. The parties also dispute how much of the Dodos Property is visible from the cameras. Id. ¶ 88.

The Weissmans also placed two small signs indicating there is a security system in place to deter crime. Id. ¶ 89.

The parties dispute whether Plaintiff objected to the installation of the cameras and signs before commencing this action. Id. ¶ 90.

The signs are no longer present in the common area. Id. ¶ 93.

2. Cutoff of Plaintiff’s gas service because of fumigation at the Weissman Property

The parties dispute whether the Weissmans caused Plaintiff’s gas service to be cut off without her permission when they needed to fumigate their property for termites. Id. ¶¶ 113-115. Notably, Plaintiff disputes whether the Weissmans could have fumigated their property without needing to cut off Plaintiff’s gas. Id. ¶ 115. The parties dispute whether the Weissmans communicated the need to cut off Plaintiff’s gas service and who ultimately decided the need to cut off Plaintiff’s gas service. Id. ¶¶ 116-119.

3. Interactions with Plaintiff’s guests and workers

The parties dispute whether Defendant harassed or threatening any of Plaintiff’s guests or workers, including following them to their vehicles. Id. ¶¶ 131, 133-134.

E. The July 21, 2016 written agreement

The parties made a written agreement whereby: (1) Chuck would (a) fill fix the cement cracks in the driveway, (b) restore the fence surrounding the property to its original state, (c) refinish the back gate that blocks off the dog run; and (2) Plaintiff would clean and resow the plants and dirt. Id. ¶ 167; see Weissman Decl. Ex. 17 [copy of agreement]. Defendant signed the agreement and has no explicit obligations under the agreement. UMF ¶ 169.

Defendant contends that Chuck was depressed and they both felt forced to sign, though Plaintiff claims that there were no indications of this motivation. Id. ¶ 168.

V. DISCUSSION

Defendant moves for summary judgment or in the alternative for summary adjudication, arguing that: Plaintiff permitted the Weissmans to perform the repairs and modifications to the common area of which she now complains; the statute of limitations bars some of Plaintiff’s complaints; some breaches did not cause Plaintiff or the Association governing the Development to suffer any recoverable damages; Defendant is not a party to any contracts with Plaintiff; Defendant was not negligent; Defendant did not create a nuisance; and there is no “actual controversy involving justiciable questions” requiring declaratory relief.

A. The Court refuses to consider the portion of Defendant’s reply that exceeds page limits

The Court independently notes that Defendant’s reply memorandum exceeds page limits, pursuant to California Rules of Court, rule 3.113(d), which states:

Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. No reply or closing memorandum may exceed 10 pages. The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.

Defendant filed a reply memorandum that is a little over 15 pages long. This is improper. Therefore, the Court exercises its discretion to refuse to consider any content beyond 10 pages. See Cal. Rules of Court, rule 3.113(g), 3.1300(d).

B. First cause of action – Plaintiff has standing to enforce breach of CC&Rs against Defendant

Defendant first argues that Plaintiff does not have standing to enforce the CC&Rs against Defendant because the CC&Rs permit only the Association to enforce them.

Specifically, Defendant argues that Plaintiff does not have standing pursuant to Civil Code section 5975, which provides that a common interest development’s covenants and restrictions are enforceable as equitable servitudes unless they are unreasonable:

(a) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.

Civ. Code, ; 5975, subd. (a), emphasis added.

The parties dispute whether the default rule applies whereby Plaintiff has standing, or whether there is a designated, specified exclusion removing Plaintiff’s standing. This determination depends on the CC&Rs’ text. The CC&Rs contain a specific provision involving the enforcement power as follows:

(c) Enforcement Power. The Association has the right to institute and maintain action for damages or to restrain any actual or threatened breach of any of the provisions of this Declaration, the Articles, Bylaws or Rules of the Association, in its own name and on its own behalf or on the behalf of any consenting Unit Owner. It may enforce payment of assessments in accordance with the provisions of Article IV of this Declaration.

UMF ¶ 175, quoting Weissman Decl. Ex. 1 at p. 9 at ; 3.5(c).

This provision states what authority the Association has. See Weissman Decl. Ex. 1 at p. 9 at ; 3.5, preamble [“General Powers and Authority. The Association shall have all the powers of a nonprofit corporation . . . Its powers shall include, but are not limited to, the following: . . . .”]. Given the general framework and the quoted language, Defendant unreasonably stretches the provision as one that excludes Plaintiff from pursuing a breach of CC&Rs claim, especially considering the Association could have easily specified an exclusion exists (e.g., “The Association shall have these powers and a Member does not have similar enforcement power unless otherwise stated.”). Additionally, acceptance of Defendant’s argument would render the Association without enforcement power because the Association (if created)[20] is a two-unit homeowner’s association. An owner would not vote to enforce a breach of the CC&Rs against himself or herself. The original owners of the properties (James C. Cassell, III and Mary Lou Cassell) could not have intended this interpretation because it is illogical. See Civ. Code, ; 1638 [“The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.”]; see also id., ; 1643 [“A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.”]. Finally, Defendant does not otherwise cite any supporting authority for her interpretation. Despite Defendant’s contention otherwise (reply 10:2-4), it is immaterial that Plaintiff similarly does not cite any supporting authority for Plaintiff’s position because Defendant still does not satisfy her initial burden.

Accordingly, Plaintiff has standing to enforce breach of CC&Rs against Defendant.

C. First cause of action – the construction of the stone wall, assuming it violates the CC&Rs, is not barred by the statute of limitations and Plaintiff is not equitably estopped from pursuing her claim based on this conduct in her breach of CC&Rs claim

As discussed further below, Plaintiff alleges Defendant took many actions that breach the CC&Rs and Defendant challenges that allegation with record evidence. However, as a preliminary matter, Defendant argues that Plaintiff cannot assert her first cause of action based on the construction of the stone wall, even assuming it occurred in violation of sections 5.1(b) and (g) as discussed further below, because it is barred by the statute of limitations.

The parties dispute the governing law for the statute of limitations. Defendant, citing Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1384-1385 (Cutujian) and Code of Civil Procedure section 337 governing breach of contracts (motion 12:6-9), contends that the statute of limitations is four years. Plaintiff, citing Civil Code[21] sections 336 and 784 (opposition 9:21-28), contends that the statute of limitation is five years.

Code of Civil Procedure section 336, subdivision (b) provides that an action for violation of a restriction as defined in Civil Code section 784 is five years. Civil Code section 784 defines a restriction as “a limitation on, or provision affecting, the use of real property in a deed, declaration, or other instrument, whether in the form of a covenant, equitable servitude, condition subsequent, negative easement, or other form of restriction.”

Defendant’s reliance on Cutujian is misplaced because it was decided pursuant to Code of Civil Procedure section 337 before the 1998 enactment of Code of Civil Procedure section 336, which went into effect in 2001. Additionally, Defendant’s reliance on Code of Civil Procedure section 337 is misplaced considering the plain meaning of section 337. See Pacific Hills Homeowners Assn. v. Prun (2008) 160 Cal.App.4th 1557, 1563 [“[S]ection 336, subdivision (b) does not govern merely recorded restrictions but applies to unrecorded restrictions as well.”].

Nevertheless, Defendant maintains that Plaintiff fatally does not specify which provisions of the CC&Rs are violated and how this provision qualifies as a “restriction.” Reply 10:16-18. Defendant does not cite any supporting authority why Plaintiff must specify which provision of the CC&Rs are violated, notwithstanding Plaintiff argues that this conduct involves CC&R sections 5.1(b) and (g). See opposition 11:2-23, 16:1-5. This conduct falls under a plain meaning of a “restriction” as it limits Defendant’s use of real property in the common area in the form off of a covenant. Defendant’s argument ignores that the governing document is entitled “Declaration of Covenants, Conditions, and Restrictions for the 1106 & 1108 Loma Condominiums.”

Here, Plaintiff alleges that in May 2012, the Weissmans constructed a stone and concrete private patio in a designated common area. Plaintiff filed her initial complaint timely in March 2017. All of the other alleged actions are within the statute of limitations (see opposition 10:11-22) as unchallenged by Defendant.

Therefore, the statute of limitations does not bar Plaintiff’s claims.

Defendant contends that Plaintiff cannot assert a breach of CC&Rs claim based on this wall because she is equitably estopped from doing so. Plaintiff does not brief this specific issue in her opposition.

“Equitable estoppel requires that: (1) the party to be estopped was aware of the operative facts and either intended that its act or omission be acted upon, or acted in such a way that the party asserting estoppel rightfully believed it was intended; and (2) the party asserting estoppel was unaware of the facts and relied on the other party’s conduct to its detriment.” Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1097.

Here, Defendant contends that Plaintiff gave her permission to the Weissmans to construct the wall and they did so, yet they did not know that Plaintiff would later deny that she gave permission. However, the parties factually dispute whether Plaintiff gave the Weissmans permission for this wall. UMF ¶¶ 18, 20, 24, 158. There is a triable issue of fact that the Court cannot decide for this motion’s purposes. The Court otherwise rejects Defendant’s contention that Plaintiff’s deposition testimony is unambiguous to render UMF ¶¶ 18, 20, 24 as undisputed. Reply 2:11-13, 15-17, 8:25-27. The relevant testimony is as follows:

Q. And did you ever ask them to stop?

A. It was too late.

Q. I understand you think it was too late. I’m asking you did you ask them?

A. No.

Q. Did you ever say anything to them at that point about how they didn’t have permission?

A. No.

Jeffrey Decl. Ex. 18 at 21:4-11. Defendant mischaracterizes Plaintiff’s testimony, which notably refers to events that occurred after the Weissmans started building the wall. Defendant disingenuously argues that a person not commenting on another’s action necessarily means consent is granted.

Finally, the Court rejects Defendant’s two additional arguments made in reply. Reply 10:20-25. Defendant does not explain how or why Plaintiff’s claimed observation of the construction of the wall without attempting to stop it, which is disputed by Plaintiff (see UMF ¶ 26), specifically induced Defendant to expect Plaintiff would not later challenge the wall. Defendant does not explain why the wall’s permanence or enhancement of the property, which both claims are not supported by evidentiary citations and the second claim is disputed by Plaintiff (see UMF ¶¶ 27-28), matter for the purposes of an equitable estoppel defense as specifically raised by Defendant. Perhaps a defense of laches would be more appropriate, but Defendant does not identify or brief this issue, so the Court declines to discuss this issue further.

Accordingly, Plaintiff is not equitably estopped from asserting her breach of CC&Rs claim based on this conduct.

D. First cause of action – whether Defendant’s alleged conduct breached the CC&Rs (sections 2.4, 3.4, 5.1, 5.3, and 6.1)

Defendant contends that she did not breach the CC&Rs. Plaintiff specifically alleges that Defendant breached the CC&Rs’ sections 2.4, 3.4, 5.1, 5.3, and 6.1. TAC ¶ 34. The Court addresses each section sequentially. Some of Defendant’s alleged conduct applies to multiple sections and subdivisions. The Court incorporates its analysis as necessary.

1. Section 2.4

Section 2.4 governs the exclusive ownership and possession, allowing each owner to exclusively possess his or her own unit, but not certain areas outside the unit:

Section 2.4. Exclusive Ownership and Possession. Each Owner shall be entitled to the exclusive ownership and possession of his or her Unit. An Owner shall not be deemed to own the undecorated and/or unfinished surfaces of the perimeter walls, basement floors, (upper) top story ceilings, windows, and doors bounding his or her Unit, nor shall the owner be deemed to own the utilities running through his or her Unit which are utilized for, or serve more than one Unit, except as tenant in common with the other Owners. An Owner, however, shall be deemed to own and shall have the exclusive right to paint, repaint, tile, wax, paper, or otherwise refinish and decorate the inner surfaces of the walls, basement floors, (upper) top story ceilings, windows, and doors bounding his or her Unit.

UMF ¶ 139, quoting Weissman Decl. Ex. 1 at p. 6 at ; 2.4.

Plaintiff alleges that Defendant added six security cameras throughout the Development, overseeing the entire common area. TAC ¶ 22. Considering the plain language of section 2.4, it is unclear how the installation of security cameras in unspecified areas throughout the Development violate the CC&Rs. Additionally, when disputing Defendant’s claim that the installation of these cameras violates section 2.4, Plaintiff only disputed this action on the basis of section 5.1(f). See UMF ¶¶ 86, 140; see also opposition 14:10-20.

Accordingly, Defendant meets her burden that there is no breach of section 2.4 and Plaintiff does not rebut that shifted burden. The Court also notes that Plaintiff does not directly argue that the construction of a private patio is a violation of section 2.4 (see SSUF ¶ 13), but even if Plaintiff were to do so, the construction of a private patio does not violate Plaintiff’s exclusive ownership and possession of her own unit (section 2.4), but instead implicates the unsanctioned use of the common area (section 5.1).

2. Section 3.4

Section 3.4 governs the holding and conduct of membership meetings, i.e., that there shall be annual meetings (3.4(a)), special meetings can occur (id. (b)), the location of these meetings (id. (c)), the notice required (id. (d)), and rules involving a quorum (id. (e)), proxies (id. (f)), and actions taken by a vote outside a meeting (id. (g)). Considering the plain language of section 3.4, it is unclear what specific action Plaintiff alleges that violates the CC&Rs. Additionally, when disputing Defendant’s claim that Defendant has not violates section 3.4, Plaintiff does not provide any evidence to support her dispute. See UMF ¶ 142. Plaintiff does not otherwise make any arguments in her opposition about this issue.

Accordingly, Defendant meets her burden that there is no breach of section 3.4 and Plaintiff does not rebut that shifted burden.

3. Section 5.1

Section 5.1 is an expansive section that involves general restrictions on uses of an owner’s unit and the common area without obtained consent, including prohibiting:

(a) a unit’s owner from using his or her unit for anything other a private residence;

(b) obstruction of the common area;

(d) signs displayed to the public view except advertising the unit for sale;

(e) presence of animals in the common area;

(f) “noxious or offense activity . . . [or anything that] may be or become an annoyance or nuisance;”

(g) alteration, construction, or removal from the common area;

(i) an owner parking a vehicle in the common area; and

other provisions ((c) and (h)) not relevant to this motion.[22]

Plaintiff alleges that Defendant’s many actions breached several subdivisions.

Regarding subdivision (a), Plaintiff alleges that the unit was used a place of business address for Chuck. TAC ¶ 28. Defendant proffers evidence that she did not use the unit for anything other than a private residence. UMF ¶¶ 111-112, 144. In response, Plaintiff contends that Chuck listed the unit as a business address for a business called Vytronics. Ibid. [referring to Dodos Decl. ¶ 59 and opposition Ex. L]. However, even if the Court were to credit this evidence considering its lack of foundation and/or authentication, Plaintiff asserts the first cause of action only against Defendant and there is no evidence that Defendant is involved with Chuck’s business.

Regarding subdivision (b), Plaintiff does not specifically allege what conduct implicates this subdivision. Nevertheless, instead of evaluating whether all of Defendant’s actions involve this subdivision, the Court is guided by Plaintiff’s opposition that focuses on the following conduct by the Weissmans: (1) constructing the stone patio in the common area; (2) enclosing the side walkway; (3) placing a plastic tarp covering to the railing on the dog run; (4) converting the common area for private use by (a) constructing a front wooden gate that blocked ingress/egress to the common area and (b) maintaining the dog run; (5) leaving tire marks and oil spots on the driveway; (6) parking their cars in the guest parking space, effectively blocking Plaintiff from backing out of her own garage; (7) poorly patching the driveway causing cracks; (8) using the property as a business; (9) misusing Plaintiff’s hose; and (10) causing debris to clog the sump screen. See opposition 15:22-18:17. As a preliminary matter, items (8)-(10) do not facially involve obstructions of the common area, and therefore the Court does not need to examine these items further. As explained above in the facts section, the parties thoroughly dispute whether Defendant committed the specified conduct in breach of this section and/or Plaintiff consented to that conduct. Therefore, there are triable issues of fact on items (1)-(4). Additionally, it is immaterial that Plaintiff has a key the dog run’s back gate because there is a triable issue of fact whether she has a key to the front gate, which means the front gate obstructs her access to the common area. Regarding items (5) and (7), although the driveway is a common area, tire marks, oil spots, and cracks do not constitute “obstruction” within the term’s plain meaning. Plaintiff still had access to the driveway despite its unclean appearance. Additionally, Chuck did item (7), not Defendant. Finally, Defendant’s use of the guest parking space (item 6), even if used in the manner Plaintiff claims and Defendant does not dispute (SSUF ¶ 24), does not obstruct a common area, but Plaintiff’s own area.

Regarding subdivision (d), Plaintiff alleges that Defendant put up security signs. TAC ¶ 23. Defendant concedes that she posted signs indicating the presence of a security system, but contends that there are no damages based on the posting of signs and they have been removed. The signs’ current removal does not mean that Plaintiff did not suffer damages when they were up. Defendant does not explain how the breach of the CC&Rs cannot at least provide nominal damages that are actionable. Additionally, even if Defendant successfully made that point, there still is a triable issue of fact whether Plaintiff suffered damages because Plaintiff stated that real estate brokers questioned whether the properties are located in a high crime area (Dodos Decl. ¶ 45), therefore possibly affecting the properties’ reputation and future resale value.

Regarding subdivision (e), Plaintiff alleges that Defendant allowed her dogs to run free in the common area. TAC ¶ 17. Defendant proffers evidence that Plaintiff consented to the use of the common area as a dog run. UMF ¶¶ 35-36. However, there is a triable issue of fact whether Plaintiff later tried to withdraw her consent to the dog run so that she could have access to the common area. Id. ¶¶ 50, 54-56.

Regarding subdivision (f), Plaintiff does not specifically allege what conduct implicates this subdivision. Nevertheless, instead of evaluating whether all of Defendant’s actions involve this subdivision, the Court is guided by Plaintiff’s opposition that focuses on the following conduct by the Weissmans: (1) installing security cameras; (2) cutting off Plaintiff’s gas as part of the fumigation process; and (3) harassing Plaintiff’s guests and workers. See opposition 14:3-15:8. The Court rejects Defendant’s argument that the CC&Rs do not require Defendant to obtain permission from Plaintiff to install the security cameras. Motion 15:23-24. Whether that is true is immaterial because that does not make the installation of unwanted security cameras even if permitted any less noxious or offensive. As explained above in the facts section, the parties thoroughly dispute whether Defendant committed the specified conduct in breach of this section and/or Plaintiff consented to that conduct. Therefore, there are triable issues of fact on these items.

Regarding subdivision (g), Plaintiff does not specifically allege what conduct implicates this subdivision. Nevertheless, instead of evaluating whether all of Defendant’s actions involve this subdivision, the Court is guided by Plaintiff’s opposition that focuses on the following conduct by the Weissmans: (1) replacing the front wooden gate with a poorly constructed replacement; (2) constructing the stone wall in the grass common area in front of the Weissman Property; (3) replacing plants in the planter near the Weissman Property; (4) replacing the back gate made out of metal for the dog run with a higher wooden gate; (5) replacing the utility cabinet door with a poorly constructed replacement; (6) re-staining the perimeter fence with a different color and finish and in a poorly constructed way; and (7) hiring a contractor whose poor work led to stain spills that damaged the common area including killing plants. See opposition 11:1-14:2. As explained above in the facts section, the parties thoroughly dispute whether Defendant committed the specified conduct in breach of this section and/or Plaintiff consented to that conduct. In item (4), Defendant does meet her initial burden and Plaintiff cannot rebut the shifted burden on whether Plaintiff consented to the replacement of the back gate with a higher wooden gate. See UMF ¶¶ 58-59 and footnote 18. However, there still is a triable issue of fact whether Defendant honored Plaintiff’s consent by constructing the replacement gate in the agreed manner. Even though in item (6) a contractor did the staining of the fence, the contractor did so on the Weissmans’ initiative and decision. Therefore, there are triable issues of fact on these items.

Regarding subdivision (i), Plaintiff alleges that Defendant parked car in guest parking space “effectively blocking [Plaintiff] from backing out of her own garage” and slightly out of the guest parking space and within the common area blocking Plaintiff’s ingress/egress to her parking space. TAC ¶ 23. Defendant proffers no evidence to meet her initial burden on this subdivision and otherwise concedes this point by not disputing SSUF ¶ 24.

4. Section 5.3

Section 5.3 provides that each owner can be held liable for damages to the common area from negligence or willful conduct:

Section 5.3. Damage Liability. Each owner shall be liable to the Association for all damages to the Common Area or other Association property that is sustained by reason of the negligence or willful misconduct of that Owner, his family, guests or tenants.

UMF ¶ 161, quoting Weissman Decl. Ex. 1 at p. 21 at ; 5.3.

Plaintiff alleges that the Weissmans used her garden hose in a negligent way by using a higher-powered setting resulting in the displacement of soil that damaged the sump screen, which the Weissmans did not maintain. TAC ¶ 30. Plaintiff in her opposition does not identify any other conduct that could implicate this section, though the Court independently notes that Plaintiff generally claims that Defendant committed other negligent conduct as mentioned above, including for example the construction of the back gate and staining of the perimeter fence. See motion 14:5-13 [back gate].

However, this section does not prescribe or prohibit any conduct. In other words, it does not prohibit negligent conduct that causes damage to the common area or the Association. Instead, it merely provides that an owner can be held liable for the conduct, presumably based on a negligence claim or a similar claim. Defendant meets her initial burden and Plaintiff does not rebut the shifted burden because she does not address this specific issue in opposition.

Additionally, Defendant also meets her initial burden on the damage to Plaintiff’s garden hose because section 5.3 applies to the common area and Association property, not Plaintiff’s personal property. Plaintiff again does not rebut this shifted burden because she focuses on whether there is an issue of fact that Defendant actually damaged the garden hose, which is immaterial to this analysis.

5. Section 6.1

Section 6.1 provides that no construction work can begin without submission of the plans to the Architectural Control Committee and their approval of the proposed work:

Section 6.1. Approval. No building, addition, wall, fence or alteration shall be begun, constructed, maintained or permitted to remain on any lot or Unit, or on the Common area, until complete plans and specifications of the proposed work have been submitted to and approved by the Architectural Control Committee. The Committee shall review all such proposals to judge whether they are compatible with the standards of design, construction, and quality of the Project and, if they are not, to require that changes be made before approval.

UMF ¶ 165, quoting Weissman Decl. Ex. 1 at p. 22 at ; 6.1.

Plaintiff alleges that the Weissmans constructed the stone wall creating a private area around the grass common area in front of their property. TAC ¶ 14. Defendant did not submit plans in the manner required under this section. However, the Architectural Control Committee never existed because Plaintiff did not consent to the formation of a homeowners’ association that would lead to its creation. UMF ¶ 166. Plaintiff cannot use this section both as a shield and a sword because Plaintiff has unclean hands, which is discussed further below in a different context. See Section V(E), infra. Defendant meets her initial burden and Plaintiff does not rebut the shifted burden because she does not address this issue in her opposition. See opposition 5:9-14.

6. Summary

As discussed above, there are many actions that can implicate multiple sections and subdivisions. On most of Defendant’s conduct, even when Defendant meets her initial burden, Plaintiff successfully rebuts the shifted burden because there are triable issues of fact. However, Defendant correctly argues that some conduct cannot support a claim for a breach of the CC&Rs under certain sections and/or subdivisions.

On the specific issues that Defendant prevails, the Court finds that:

(1) Plaintiff cannot maintain a claim for breach of CC&Rs based on section 2.4.

(2) Plaintiff cannot maintain a claim for breach of CC&Rs based on section 3.4.

(3) Plaintiff cannot maintain a claim for breach of CC&Rs based on section 5.1(a).

(4) Plaintiff cannot maintain a claim for breach of CC&Rs based on section 5.1(b) for the following conduct:

(a) leaving tire marks and oil spots on the driveway; (b) parking their cars in the guest parking space, effectively blocking Plaintiff from backing out of her own garage; (c) poorly patching the driveway causing cracks; (d) using the property as a business; (e) misusing Plaintiff’s hose; and (f) causing debris to clog the sump screen.

(5) Plaintiff cannot maintain a claim for breach of CC&Rs based on section 5.3.

(6) Plaintiff cannot maintain a claim for breach of CC&Rs based on section 6.1.

The Court DENIES summary adjudication on the entire first cause of action, but GRANTS summary adjudication for the following conduct[23] as alleged in the first cause of action: (1) any conduct alleged to violate CC&Rs sections 2.4., 3.4., 5.1(a), 5.3, and 6.1; and (2) the following specific conduct alleged to violate CC&Rs section 5.1(b): (a) leaving tire marks and oil spots on the driveway; (b) parking their cars in the guest parking space, effectively blocking Plaintiff from backing out of her own garage; (c) poorly patching the driveway causing cracks; (d) using the property as a business; (e) misusing Plaintiff’s hose; and (f) causing debris to clog the sump screen.

E. First cause of action – Plaintiff’s claim is not barred by unclean hands

Defendant argues that Plaintiff’s first cause of action is barred by the doctrine of unclean hands.

“The doctrine of unclean hands requires unconscionable, bad faith, or inequitable conduct by the plaintiff in connection with the matter in controversy.” Mendoza v. Ruesga (2008) 169 Cal.App.4th 270, 279. “Unclean hands applies when it would be inequitable to provide the plaintiff any relief, and provides a complete defense to both legal and equitable causes of action.” Ibid. Whether the unclean hands doctrine applies depends on whether the unclean conduct directly relates to the transaction upon which the complaint is made, i.e., the subject matter involved. Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 681.

To apply the unclean hands defense, courts apply a three-part test that depends upon: “(1) analogous case law, (2) the nature of the misconduct, and (3) the relationship of the misconduct to the claimed injuries.” Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1060, numbered items added.

Defendant argues that Plaintiff has unclean hands for three reasons: (1) Plaintiff did not create a homeowner’s association and refused to do so; (2) Plaintiff made her own modifications to the common area violating the CC&Rs, i.e., did so without the Weissmans’ permission; and (3) Plaintiff painted her property’s exterior violating the CC&Rs, i.e., did so without the Weissmans’ permission to the color choice.

Regarding the first argument, as a preliminary matter, Plaintiff concedes that she refused to create a homeowners’ association despite the Weissmans’ request. UMF ¶¶ 11, 162. Defendant contends that Plaintiff was required by Civil Code section 4800 and the CC&Rs to form a homeowners’ association. Civil Code section 4800 provides how a common interest development shall be managed:

A common interest development shall be managed by an association that may be incorporated or unincorporated. The association may be referred to as an owners’ association or a community association.

Civ. Code, ; 4800, emphasis added. The law is clear that a common interest development’s management requires an association that is either incorporated or unincorporated. However, that requirement involves “manage[ment]” and does not otherwise explicitly limit Plaintiff’s breach of CC&Rs claim. Defendant does not otherwise cite supporting authority to explain why Plaintiff’s breach of CC&Rs claim is an improper exercise of that “manage[ment].” In fact, as already discussed above, the Court rejects Defendant’s similar argument regarding Plaintiff’s standing to for this claim. Defendant does not cite any analogous case law that would justify the application of the unclean hands defense. Regarding the CC&Rs’ requirement, the Court again is unaware of why this requirement matters in the context of prohibiting Plaintiff from pursuing her claim. Presumably, Defendant argues that it would be inequitable to allow Plaintiff to enforce the CC&Rs when a homeowners’ association would have granted the Weissmans’ consent for their conduct, and thus their actions would not breach the CC&Rs. However, it is unclear from the facts that this would occur even if a homeowners’ association existed, especially considering the equal voting rights distribution for the two units. Weissman Decl. Ex. 1 at pp. 7-8 at ;; 3.2, 3.3(a), 3.4(g); see also id. Ex. 2 at ¶ 3 [“There are no association dues, meetings, or voting except, if needed, to maintain driveway or sump pump.”]. Although it does seem unfair to create a permanent stalemate, Defendant does not persuasively show how this conduct is unconscionable to justify an unclean hands defense raised in a summary judgment motion.

Finally, Defendant argues that Plaintiff made her own modifications to the common area (removing a plant and replaced pavers) and painted her property’s exterior violating the CC&Rs. However, the parties factually dispute whether the Weissmans gave her permission for these actions. UMF ¶¶ 135-138. Defendant does not address this issue further in reply. There is a triable issue of fact that the Court cannot decide for this motion’s purposes.

Accordingly, Plaintiff does not have clean hands that preclude her from pursuing her entire first cause of action. However, as noted above (see Section V(D)(5), supra), Plaintiff’s unclean hands preclude her from pursuing her breach of CC&Rs claim based on a violation of section 6.1 of the CC&Rs.

F. Second cause of action – breach of written contract

Defendant argues that Plaintiff cannot prevail on her written breach of contract claim based on the July 27, 2016 agreement because: (1) Defendant signed it under duress; and/or (2) Defendant has no obligations under the contract.

To plead a breach of contract cause of action, a plaintiff must allege: (1) the existence of contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) any resulting damages. Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.

“It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration.” Civ. Code, ; 1550.

First, Defendant argues that her husband’s threat to kill himself unless she signed the contract constitutes duress that negates the element of Defendant’s consent.

Civil Code section 1565 requires that the consent is free, mutual, and communicated.

Civil Code section 1569 provides situations where duress exists to negate consent:

Duress consists in any of the following:

(a) Unlawful confinement of the person of the party, or of the spouse of such party, or of an ancestor, descendant, or adopted child of such party or spouse.

(b) Unlawful detention of the property of any such person.

(c) Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive.

Here, none of those situations apply here because the threat does not involve confinement. Nevertheless, Defendant presumably alternatively argues that consent is lacking no matter what she called her defense. In that event, Defendant is correct that the duress’ stringent definition contained in Civil Code section 1569 has been relaxed. See Civ. Code, ;; 1567, 1568, 1570; see also In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 84. Defendant through her declaration proffers sufficient evidence to show that she felt forced to sign the agreement because of Chuck’s threat. UMF ¶ 168 referring to Weissman Decl. ¶ 162. However, because Chuck is a third party, Defendant must also show that Plaintiff knew about Chuck’s conduct and that Plaintiff took advantage of Chuck’s conduct. See Leeper v. Beltrami (1959) 53 Cal.2d 195, 206. Defendant proffers no evidence that Plaintiff knew about Chuck’s threat to Defendant to meet her initial burden.

Second, Defendant argues that the written contract placed obligations only on Chuck, not her. Defendant proffers sufficient evidence to show that she signed the contract and the agreement placed contractual obligations on Chuck and Plaintiff to perform certain actions. UMF ¶¶ 167, 169; see Weissman Decl. Ex. 17 [copy of agreement]. Defendant signed the agreement and had no explicit obligations under the agreement. UMF ¶ 169. Therefore, Defendant meets her initial burden to show that she does not breach any obligations under the contract. Plaintiff contends that Defendant, by signing the contract has an obligation to ensure that Chuck would perform the tasks he agreed to do. Plaintiff does not cite any supporting authority for this claim.

However, the Court can properly consider the whole contract, including its preamble. City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473 [“Any contract must be construed as a whole, with the various individual provisions interpreted together so as to give effect to all, if reasonably possible or practicable.”].

The contract’s preamble provides as follows:

On this day of July 21, 2016 the owners Chuck Weissman and Jackie Weissman of 1106 Loma Drive, Hermosa Beach Ca. 90254 and Marla Dodos of 1108 Loma Drive, Hermosa Beach Ca. 90254 Have agreed to the following projects to be carried out on the property, which includes the homes of both addresses.

Weissman Decl. Ex. 17, emphasis added. The Court can reasonably interpret this clause to provide that all the parties generally agreed to each respective side to do certain tasks, while the later provisions explain who from each respective side is primarily responsible for their tasks, though Plaintiff is the only person on her side. When reading the contract together with the remaining provisions, the contract does not suggest that Chuck must exclusively perform the Weissmans’ obligations and his failure to do so absolves Defendant of any responsibility. See Titan Corp. v. Aetna Casualty & Surety Co. (1994) 22 Cal.App.4th 457, 474 [“[W]e should interpret contractual language in a manner which gives force and effect to every clause rather than to one which renders clauses nugatory.”]. Additionally, certain provisions require the communication between the respective sides (see Weissman Decl. Ex. 17 at ¶¶ 2(h), 3). The parties tried to limit Defendant’s communication with Plaintiff (see UMF ¶ 66), and it is reasonable to interpret that the parties drafted the terms accordingly to limit their communication, not to place all of the Weissmans’ contractual obligations on Chuck. Therefore, Plaintiff rebuts the shifted burden on this issue and there is a triable issue of fact whether the parties intended Defendant to have no contractual obligations.

Accordingly, the Court DENIES summary adjudication on this issue, i.e., second cause of action.

G. Third cause of action – breach of oral contract

Defendant argues that Plaintiff cannot prevail on her oral breach of contract claim based on the December 15, 2016 agreement because: (1) Defendant has not spoken orally to Plaintiff since 2014; (2) Plaintiff did not provide consideration; and/or (3) Plaintiff did not suffer any damages.

Plaintiff alleges that the parties made an oral contract on December 15, 2016 whereby “Defendants agreed to remove rocks from the planter as described above and Dodos agreed to place soil back into the planter and repopulate the planter with plants and flowers upon removal of the rocks by Defendants.” TAC ¶ 53.

First, Defendant proffers sufficient evidence to meet her initial burden to show she did not orally agree to a contract because she did not orally speak to Plaintiff during the relevant time period. See UMF ¶ 74 referring to Weissman Decl. ¶ 165. However, as previously discussed (see Section III(B)(2) at objection no. 32), there is a triable issue of fact whether they spoke during the relevant time period.

Second, Defendant argues that this agreement involved a promise by Defendant to replace the rocks with soil in the planter and Plaintiff provides no consideration in exchange. Civil Code section 1605 defines good consideration as “[a]ny benefit conferred . . . to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by [the promissee].” “The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it.” Civ. Code, ; 1615. Here, Plaintiff proffers sufficient evidence of good consideration, namely that she offered to pay for, plant, and maintain the plants in the planter if Defendant replaced the rocks with soil in the planter. See Dodos Decl. ¶ 88. Therefore, Plaintiff rebuts the shifted burden.

Third, Defendant argues that Plaintiff did not suffer any damages. “For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” Civ. Code, ; 3300. Defendant proffers no evidence to meet her initial burden to show that Plaintiff suffered no damages, e.g., discovery responses. Nevertheless, even if Defendant did, making all the inferences reasonably deducible from the evidence, Plaintiff wanted plants in the planter for her personal enjoyment (see Dodos Decl. ¶¶ 9, 33, 65, 75 [showing gardening hobby]) and there is a triable issue of fact on the existence and amount of damages.

Accordingly, the Court DENIES summary adjudication on this issue, i.e., third cause of action.

H. Fourth cause of action – specific performance

Defendant argues that Plaintiff cannot prevail on her specific performance claim because: (1) specific performance is not an independent cause of action; and/or (2) Plaintiff is not entitled to specific performance because (a) she consented to the common area’s modifications and (b) she refused to form the homeowners’ association to manage the Development.

Specific performance is not a cause of action, but an alternative remedy for a breach of contract. Darbun Enterprises, Inc. v. San Fernando Community Hospital (2015) 239 Cal.App.4th 399, 409 [“A plaintiff may seek specific performance, an equitable remedy, as an alternative to damages, but a plaintiff may not receive both for breach of contract to the extent such an award would constitute a double recovery.”] Defendant meets her initial burden because Plaintiff cannot maintain her independent cause of action for specific performance. Plaintiff does not rebut the shifted burden because she does not address this issue in her opposition. See opposition 19:23-20:11.

The Court does not discuss Defendant’s alternative arguments because they are unnecessary for the Court’s ultimate ruling.

Accordingly, the Court GRANTS summary adjudication on this issue, i.e., fourth cause of action.

I. Fifth cause of action – negligence

Defendant argues that Plaintiff cannot prevail on her negligence claim because: (1) Defendant owed no duty because she did not perform the construction work herself; (2) Plaintiff authorized the work; (3) there was nothing wrong with the construction work; (4) Plaintiff’s damages involving the driveway are moot because a neighbor is replacing the driveway; and (5) Defendant did not cause damage to the garden hose.

The essential elements of a cause of action for negligence are: (1) the defendant’s legal duty of care toward the plaintiff, (2) the defendant’s breach of duty—the negligent act or omission; (3) injury to the plaintiff as a result of the breach—proximate or legal cause; and (4) damage to the plaintiff. Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

Plaintiff alleges that Defendant negligently created dangerous and defective conditions, “including, but not limited to, unlicensed contractor work, careless construction, [] numerous unauthorized material alterations to the Development[,] . . . repeatedly misusing the water-hose, unauthorized cement smearing, paint spillage, oil leaking and constant unauthorized construction projects in and around the Development.” TAC 15:22-23, 16:1-3.

First, Defendant proffers sufficient evidence showing that Chuck and a contractor completed the construction work. However, Defendant still owes a duty to Plaintiff to maintain the Development and ensure that any repairs, improvements, or renovations are done within the standard of care. Regarding the contractor’s job staining the perimeter fence, it is unclear how Plaintiff can maintain a negligence claim against Defendant based on the contractor because it is undisputed that Plaintiff and the Weissmans jointly hired the contractor. See UMF ¶ 103. However, there still is a triable issue of fact on the circumstances how they hired the contractor that might implicate a negligence claim, which might ultimately involve the apportionment of responsibility for the contractor’s negligent work, i.e., it can be reasonably inferred that Plaintiff when she asked Chuck for the contractor’s license and bond information that she expected only a licensed contractor to be hired, and yet Plaintiff claims the contractor hired is unlicensed. Ibid.; see also Dodos Decl. ¶ 53.

Regarding the second, third, and fifth arguments, as explained above in the facts section, the parties thoroughly dispute whether Plaintiff consented to all of the construction work and the adequacy of the construction work. Therefore, there are triable issues of fact.

Finally, regarding the fourth argument, the impending[24] driveway replacement does not mean that Plaintiff did not suffer damages when they occurred. These theoretical damages may be minimal, e.g., cleaning supplies Plaintiff used to clean the driveway, but they still are actionable damages.

Accordingly, the Court DENIES summary adjudication on this issue, i.e., fifth cause of action.

J. Seventh cause of action – nuisance

Defendant argues that Plaintiff cannot prevail on her nuisance claim because: (1) Defendant’s actions involving the land, including the construction work, do not obstruct Plaintiff’s free use of the land because Plaintiff consented to the work and she has access to the common area; and (2) the statute of limitations bar her nuisance claim.

Plaintiff asserts her nuisance claim pursuant to Civil Code section 3479 and/or Code of Civil Procedure section 731.TAC ¶ 84. Plaintiff asserts this nuisance claim based on Defendant’s construction of the stone wall and dog run,

Code of Civil Procedure section 731 allows a property owner to bring an action for private nuisance as defined in Civil Code section 3470 against another.

Relevant to this discussion, Civil Code section 3479 defines a nuisance as many things including anything that is injurious to health or an obstruction to the free use of property that interferes with the comfortable enjoyment.

Private nuisance liability depends on some sort of conduct by the defendant that either directly and unreasonably interferes with the plaintiff’s property or creates a condition that does so. Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100. “A nuisance is an interference with the interest in the private use and enjoyment of the land and does not require interference with the possession.” McBride v. Smith (2018) 18 Cal.App.5th 1160, 1178.

Regarding the first argument, as explained above in the facts section, the parties thoroughly dispute the nature of Defendant’s actions and whether Plaintiff consented to all of the construction work. More specifically, there is a triable issue of fact whether Plaintiff has access to the walled-off portion of the grass common area in front of the Weissman Property (see UMF ¶ 28) and the front gated portion of the dog run, though Plaintiff did later receive a key to the back gate (id. ¶¶ 62-63). The restricted access in the common area can constitute an interference of Plaintiff’s right to the comfortable enjoyment of the common area. A reasonable fact-finder might agree with Plaintiff that she cannot enjoy the front grass area because it is a cramped space and the dog run area because she can only enter and exit through the back gate. On the other hand, a reasonable fact-finder might agree with Defendant that Plaintiff still has access to both areas and this access is sufficient to provide Plaintiff the ability to enjoy both areas. However, the Court cannot decide these triable issues of fact on a summary judgment motion, but must make all inferences reasonably deducible from the evidence in Plaintiff’s favor as the nonmoving party.

Regarding the second argument, the statute of limitations for a nuisance claim alleging damage to real property is three years. Code Civ. Proc., ; 338, subd. (b). However, a nuisance can be a “continuing nuisance,” and in that situation, a plaintiff can bring successive actions for damages until the nuisance is abated. Wilshire Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 744.

“The crucial test of a continuing nuisance is whether the offensive condition can be discontinued or abated at any time.” Ibid. “Generally, whether a trespass is continuing or permanent is a question of fact properly submitted to the jury.” Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 597; see also id. at p. 594 [“[G]enerally the principles governing the permanent or continuing nature of a trespass or nuisance are the same and the cases discuss the two causes of action without distinction.”].

If Plaintiff’s nuisance claim is premised on the completed construction of the stone wall and dog run, then Plaintiff’s claim is untimely. However, Plaintiff can still assert her claim based on the “continuing nuisance” of the stone wall and dog run that continue to interfere with her enjoyment of the common area after their completed construction. Defendant has the ability to remove the stone wall and dog run. By doing so, Defendant can abate the interference of Plaintiff’s enjoyment of the common area.

Accordingly, the Court DENIES summary adjudication on this issue, i.e., seventh cause of action.

K. Eighth cause of action – declaratory relief

Defendant argues that Plaintiff cannot prevail on her declaratory relief claim because her allegations do not establish the necessity of a declaration of “future rights” under the CC&Rs, but instead Plaintiff seeks only redress for past alleged wrongs. Defendant also notes that Plaintiff does not specify what provisions of the CC&Rs that required interpretation.

Code of Civil Procedure section 1060 provides that a person may bring an action for declaratory relief if he or she “desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property.” The validity of an instrument or contract is a proper subject of declaratory relief. Ibid. A request for declaratory relief may be brought alone or with other relief. See ibid.

To state a declaratory relief claim, the plaintiff must allege a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the party’s rights or obligations. Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909 (Jolley).

Defendant misreads Jolley for the proposition that a declaratory relief action should operate to prospectively to declare future rights. Notably, the language quoted by Defendant provides that this is how declaratory relief “generally” operates and there is no discussion that declaratory relief exclusively operates in this way.

A claim for declaratory relief is improper if it seeks redress only of past wrongs. Moore v. Wells Fargo Bank, N.A. (2019) 39 Cal.App.5th 280, 295 [“[T]here is no basis for declaratory relief where only past wrongs are involved.”].

Nevertheless, that is not the situation here. Plaintiff also seeks a declaration on her current rights under CC&Rs, e.g., section 5.1, for certain present conduct, e.g., the existing stone wall and dog run. Finally, considering this parties’ history with alleged misconduct spanning multiple years, Plaintiff can reasonably expect the parties to have a future dispute over the same issues and the request for declaratory relief is also proper here in the prospective context.

Accordingly, the Court DENIES summary adjudication on this issue, i.e., eighth cause of action.

CONCLUSION

The Court DENIES Defendant’s motion for summary judgment.

The Court DENIES IN PART AND GRANTS IN PART Defendant’s motion in the alternative for summary adjudication as set forth above.

Defendant is ordered to give notice of this ruling.


[1] On July 31, 2019, the Court permitted Plaintiff to file the TAC as the operative pleading.

[2] Defendant’s submitted evidence includes deposition testimony with relevant passages highlighted in accordance with California Rules of Court, rule 3.1116(c). However, Defendant’s highlighting obscured the text making it difficult to read.

[3] Plaintiff’s submitted evidence is missing certain pages of deposition testimony that she claims to provide. E.g., compare Opposition Ex. D [transcript] with UMF ¶ 101 [referring to pages 45-46, 60-61].

[4] Plaintiff’s objection here and throughout based on a “[c]ontradict[ion of] prior sworn testimony from declarant’s deposition” is ungrounded. Plaintiff cites no deposition testimony that shows a contradiction. Instead, the apparent contradiction is a factual dispute based on what Plaintiff’s deposition testimony, not Defendant’s testimony, states.

[5] Defendant does not set forth any qualifications, background, or experience that make her qualified to state an opinion on property value. However, Evidence Code section 813, subdivision (a) codifies the familiar rule that opinions on value may be given by not only an expert, but also the owner of the property. See also In re Marriage of Folb (1975) 53 Cal.App.3d 862, 871 [the article intended to apply to valuation of property in eminent domain and inverse condemnation proceedings, but there is nothing in the article that precludes a court from using the rules prescribed in this article in valuation proceedings to which the article is not made applicable, where the court determines that the rules prescribed are appropriate]. Therefore, the Court finds that the parties as owners of their respective properties are qualified to state an opinion involving the property value of the Development.

[6] However, considering Defendant offers the same exhibit as Exhibit 17 in her moving papers, this exhibit’s exclusion has little practical effect.

[7] See Jeffrey Decl. Ex. 18 36:7-10 [“Q. So you agreed to a wood gate? A Yes. Q. And they have a wood gate there. Right? A Yes.”], 41:7-11 [“Q. So let’s break that down a little bit. The wooden gate -- we’ve now established that you did give permission for the wooden gate. Correct? A Yes. Q. So it wasn’t just only a metal gate. Correct? A. Correct.”].

[8] See Footnote 7.

[9] See Footnote 7.

[10] Additionally, Plaintiff identifies other times that she and Jackie spoke in person. Dodos Decl. ¶¶ 67, 83.

[11] See Dodos Decl. 5:25.

[12] See Dodos Decl. 5:16-17.

[13] See Footnote 5.

[14] Although the Court overrules this objection because presumably Plaintiff has foundation of this fact as her neighbor, the Court’s ruling goes only to admissibility and not the weight of the evidence, which the Court later explains is lacking to rebut the shifted burden.

[15] See Footnote 7.

[16] See Footnote 5.

[17] The Court rejects Defendant’s interpretation of Plaintiff’s deposition testimony to support her argument that this is not a disputed fact. Plaintiff’s cited testimony refers to a “dog run” to be built alongside the Weissman Property, not in front of the Weissman Property. See also Section V(C), infra [discussing this issue].

[18] The Court rejects Plaintiff’s contention that this is a disputed fact. As stated in the ruling to objection nos. 22-23 and 27, the Court rejects Plaintiff’s feigned dispute of this consent because of the clear deposition testimony.

[19] Plaintiff’s response to UMF ¶ 64 is “Not disputed.” However, as stated in the ruling to objection nos. 32-33, the Court credits Plaintiff’s declaration, even though a contradiction exists because Plaintiff does not dispute UMF ¶ 64.

[20] “There is no Association because Dodos has refused to create an Association.” UMF ¶ 162 [not disputed].

[21] Plaintiff mistakenly refers to the Civil Code instead of Code of Civil Procedure. There is no Civil Code section 336.

[22] See UMF ¶¶ 151 (subdivision (c)), 157 (subdivision (h)).

[23] When separate wrongful acts or claims are combined into a single cause of action, a party may obtain summary adjudication of a particular claim even though it is not separately pleaded as a separate cause of action. See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855 [one of multiple malpractice acts could be summarily adjudicated]; Edward Fineman Co. v. Superior Court (1998) [defendant could obtain summary adjudication based on statute of limitations as to 23 of 83 forged checks].

[24] Plaintiff contends in her opposition that the driveway replacement did not occur by the scheduled date of June 2020 (see opposition 17:13-18), but she does not support that factual claim with evidentiary support, e.g., a declaration.



Case Number: ****1897    Hearing Date: November 15, 2019    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

MARIA DODOS,

Plaintiff,

Case No.:

****1897

vs.

[Tentative] RULING

CHUCK WEISSMAN, et al.,

Defendants.

Hearing Date: November 15, 2019

Moving Parties: Defendant Jackie Weissman

Responding Party: Plaintiff Maria Dodos

Motion to Appoint a Receiver

The court considered the moving, opposition, and reply papers.

RULING

The motion is DENIED.

BACKGROUND

On March 1, 2017, plaintiff Maria Dodos, as an individual and as trustee of the Maria Dodos 2014 Trust (self-represented) filed a complaint against Chuck and Jackie Weismann for (1) breach of written contract, (2) breach of oral contract, (3) negligence, (4) NIED, (5) IIED, (6) negligent interference of prospective economic advantage, (7) intentional interference of prospective economic advantage, (8) specific performance, and (9) declaratory relief.

On September 26, 2017, plaintiff (then represented) filed a First Amended Complaint for (1) breach of written contract, (2) breach of oral contract, (3) specific performance, and (4) declaratory relief.

On November 13, 2017, defendant filed a cross-complaint for (1) continuing private nuisance, (2) IIED, (3) intentional misrepresentation, (4) appropriate of likeness, (5) breach of CC&Rs, and (6) declaratory relief.

On September 5, 2018, plaintiff filed a substitution of attorney.

On March 5, 2019, pursuant to stipulation and order, the parties agreed to continue the trial date to October 23, 2018, and to allow plaintiff to file a Second Amended Complaint to replace defendant Chuck Weissman with his estate because he passed away.

On May 10, 2019, plaintiff filed a Second Amended complaint against Jackie Weissman only and added several causes of action.

On June 7, 2019, the parties stipulated that they disagree about the scope of the agreed upon amendments to the SAC. In an attempt to resolve the dispute, plaintiff agreed to withdraw the SAC filed on May 10 and to revive the FAC as plaintiff’s operative pleading and to seek leave to court to file the SAC.

On July 17, 2019, the court granted plaintiff’s motion for leave to amend and struck the SAC filed on May 10, 2019.

On July 31, 2019, plaintiff filed a Third Amended Complaint for (1) breach of CC&Rs, (2) breach of written contract, (3) breach of oral contract, (4) specific performance, (5) negligence, (6) IIED, (7) nuisance, and (8) declaratory relief.

On October 24, 2019, the court sustained with leave to amend defendant’s demurrer to the 6th cause of action for IIED. The court also ruled on defendant’s motion to strike and giving leave to amend.

LEGAL AUTHORITY

CCP ;564 states: “(a) A receiver may be appointed, in the manner provided in this chapter, by the court in which an action or proceeding is pending in any case in which the court is empowered by law to appoint a receiver. (b) A receiver may be appointed by the court in which an action or proceeding is pending, or by a judge thereof, in the following cases: . . . (9) In all other cases where necessary to preserve the property or rights of any party.”

“We note at the outset that the availability of other remedies does not, in and of itself, preclude the use of a receivership. Rather, a trial court must consider the availability and efficacy of other remedies in determining whether to employ the extraordinary remedy of a receivership.” County of San Francisco v. Daley (1993) 16 Cal. App. 4th 734, 745.

Under Cal. Rules of Court Rule 3.1177, “At the hearing of an application for appointment of a receiver on notice . . . each party appearing may, at the time of the hearing, suggest in writing one or more persons for appointment . . . stating the reasons. . . .”

Under CCP ;567(b), “The receiver shall give an undertaking to the State of California, in such sum as the court or judge may direct, to the effect that the receiver will faithfully discharge the duties of receive in the action and obey the orders of the court therein. The receiver shall be allowed the cost of the undertaking.”

DISCUSSION

Defendant and cross-complainant Jackie Weissman requests that the court appoint a receiver pursuant to CCP ;564 regarding the real property located at 1106 and 1108 Loma Drive, Hermosa Beach.

Defendant contends that since the complaint was filed in March 2017, there are routine common area repairs and maintenance issues that have gone unaddressed. Further, defendant asserts, there has arisen “a new serious issue” where there is a large 2 ½’ to 3’ hollow space between the concrete driveway and the underlying earth. Defendant explains that because of a neighbor’s construction, the parties’ shared driveway and other concrete areas have shown evidence of cracking. The neighbor’s licensed contractor has purportedly agreed to re-pour the parties’ driveway, common stairs, and the cracked ease alley/walkway when they pour the neighbor’s driveway in January or February 2020. Defendant contends that the re-pouring will be at no cost to the parties. Defendant further explains that on August 3, 2019, the contractor observed below the driveway’s concrete an area that lacks any backfill or dirt. Defendant is concerned about the structural integrity of the alley walkways because the ground underneath is hollow.

Specifically, defendant requests that the court appoint Kevin Singer with Receivership Specialists and that he be permitted to hire a structural engineer to assess the property and to supervise the repairs and maintenance of the common areas of the property and to address the hollow space below the east alley driveway area. Defendant also requests that the court order that the parties share equally in the receiver and the repair costs.

In opposition, plaintiff argues that a receivership is inappropriate and unnecessary because there are multiple remedies, including self-help or an injunction, that are far less drastic than the appointment of a receiver. Plaintiff states in her declaration that she has never objected to having the driveway repaired but believes it would be more practical to have it repaired after the neighbor completes the construction project. She also agrees that repairs should be performed to backfill the “void” underneath the east alley walkway, albeit by the appropriate professional at an appropriate price. She also states that she “would gladly oversee the work.”

In reply, defendant argues that plaintiff’s contention that she is agreeable is disingenuous because she has consistently refused to have any repairs effectuated through a third-party until the case is resolved. Defendant contends that the parties will never agree to a professional or what is an appropriate price.

The court finds that defendant has not shown that a receiver is necessary to preserve the property. Defendant acknowledges that the common area maintenance and upkeep are routine. Defendant has not addressed the availability and efficacy of other remedies for the court to consider.

As to the “hollow” under the walkway and re-paving the driveway area, defendant has also not addressed the availability and efficacy of other remedies. Plaintiff agrees that the “hollow” needs to be repaired and that the driveway needs to be repaired. Plaintiff even suggests self-help and an injunction as “other remedies.”

Accordingly, the court finds that a receiver is not necessary to preserve the property.

The motion is therefore DENIED.

Defendant is ordered to give notice of the ruling.



Case Number: ****1897    Hearing Date: October 24, 2019    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

MARIA DODOS,

Plaintiff,

Case No.:

****1897

vs.

[Tentative] RULING

JACKIE WEISSMAN,

Defendant.

Hearing Date: October 24, 2019

Moving Parties: Defendant Jackie Weissman

Responding Party: Plaintiff Maria Dodos

(1) Demurrer to Third Amended Complaint

(2) Motion to Strike

The court considered the moving, opposition, and reply papers.

RULING

The demurrer to the 6th cause of action for IIED is SUSTAINED WITH 20 DAYS LEAVE TO AMEND. The motion to strike is ruled on as follows: DENIED as to prayer at 4 and 5, para. 41, and prayer at 12; GRANTED WITHOUT LEAVE TO AMEND as to paras. 39, 74, and 90 and prayer at 7 (treble damages); and GRANTED WITH 20 DAYS LEAVE TO AMEND as to para. 81 and prayer at 7 (exemplary and punitive damages).

BACKGROUND

On March 1, 2017, plaintiff Maria Dodos, as an individual and as trustee of the Maria Dodos 2014 Trust (self-represented) filed a complaint against Chuck and Jackie Weismann for (1) breach of written contract, (2) breach of oral contract, (3) negligence, (4) NIED, (5) IIED, (6) negligent interference of prospective economic advantage, (7) intentional interference of prospective economic advantage, (8) specific performance, and (9) declaratory relief.

On September 26, 2017, plaintiff (then represented) filed a First Amended Complaint for (1) breach of written contract, (2) breach of oral contract, (3) specific performance, and (4) declaratory relief.

On November 13, 2017, defendant filed a cross-complaint for (1) continuing private nuisance, (2) IIED, (3) intentional misrepresentation, (4) appropriate of likeness, (5) breach of CC&Rs, and (6) declaratory relief.

On September 5, 2018, plaintiff filed a substitution of attorney.

On March 5, 2019, pursuant to stipulation and order, the parties agreed to continue the trial date to October 23, 2018, and to allow plaintiff to file a Second Amended Complaint to replace defendant Chuck Weissman with his estate because he passed away.

On May 10, 2019, plaintiff filed a Second Amended complaint against Jackie Weissman only and added several causes of action.

On June 7, 2019, the parties stipulated that they disagree about the scope of the agreed upon amendments to the SAC. In an attempt to resolve the dispute, plaintiff agreed to withdraw the SAC filed on May 10 and to revive the FAC as plaintiff’s operative pleading and to seek leave to court to file the SAC.

On July 17, 2019, the court granted plaintiff’s motion for leave to amend and struck the SAC filed on May 10, 2019.

On July 31, 2019, plaintiff filed a Third Amended Complaint for (1) breach of CC&Rs, (2) breach of written contract, (3) breach of oral contract, (4) specific performance, (5) negligence, (6) IIED, (7) nuisance, and (8) declaratory relief.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP ; 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP ; 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP ; 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP ; 437.

DISCUSSION

Demurrer

Defendant demurs to the 6th cause of action for IIED on the ground that it fails to state sufficient facts to constitute a cause of action.

The tort of intentional infliction of emotional distress is comprised of three elements: (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 suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct. McMahon v. Craig (2009) 176 Cal. App. 4th 222, 234. “In order to meet the first requirement of the tort, the alleged conduct . . . must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Id. at 234-35. “Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'” Id. “’Liability for intentional infliction of emotional distress ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’” Hughes v. Pair (2009) 46 Cal. 4th 1035, 1051 (citations omitted). Whether conduct is sufficiently extreme and outrageous so as to be actionable may be determined as a matter of law. Cochran v. Cochran (1998) 65 Cal. App. 4th 488, 494.

Plaintiff alleges that she owns 1108 Loma Drive, Unit 2, Hermosa Beach. TAC, ¶6. Defendant owns 1106 Loma Drive, Unit 1, Hermosa Beach. Id., ¶7. They are part of a common interest development and are governed by the 1106 & 1108 Loma HOA and subject to CC&Rs. Id., ¶8. In May 2012, without notice or consent from Dodos, defendant caused to be constructed a stone and concrete “private patio” in the designated common area. Defendant also removed the grass and plants in that area and installed turf. Defendant placed a large urn in front of the entrance to the common area, which makes it difficult to access common areas, and gives the appearance that the common area is part of defendant’s property. Id., ¶14.

Plaintiff further alleges that in January 2012, defendant, without notice and consent from Dodos, replaced the front wooden gate in the common area with a gate that was poorly constructed and did not match the existing fence. Defendant added a low metal gate to the back of the common area to close off as a dog run. Id., ¶15. Defendant added a large plastic tarp to the dog area, which is unattractive, reduces the value of the property, and violates the CC&Rs. Id., ¶16.

Plaintiff further alleges that in April 2016, defendant, without notice and consent from Dodos, replaced the back gate and constructed a wooden gate, which replaced the existing metal gate of the dog run. Id., ¶18. Plaintiff instructed defendant that if she were to replace the metal gate and install a full-size wooden gate the parties must mutually decide on a color and style that would exactly match the fence enclosing the development, to which defendant agreed. Plaintiff approved defendant’s color and style selection but the gate that was ultimately constructed did not conform to the agreed upon selection. Id. The gate was constructed in a negligent manner. Defendant added a lock but did not provide a key to plaintiff until plaintiff requested one. Id., ¶19.

Plaintiff further alleges that in November 2015, defendant removed plants from a planter in the common area, replacing them with rocks. Id., ¶20. In November 2015, defendant attempted to repair cracks in the shared driveway with cement. As a result of this carelessness, the driveway is not visibly incongruent. Id., ¶21. Also, defendant left black tire marks on the driveway, which they did not clean. Defendant’s vehicle also leaked oil on the driveway. Defendant parked her cars in the guest parking space, effectively blocking plaintiff from backing out of her own garage. Id. Since January 2016, defendant incrementally added six security cameras, overseeing all the common areas. As a consequence, plaintiff was overwhelmed with mental and physical anguish that defendant was constantly watching plaintiff’s every move. Id., ¶22. In January 2016, defendant put up security signs throughout the development. Id., ¶23.

Plaintiff also alleges that in May 2016, defendant replaced the door and hardware to the utility cabinet that houses electrical equipment for the properties. Id., ¶24. In June 2016, defendant applied stain to a fence that did not match the color agreed to by the parties. Also, the stain is chipping and peeling. Id., ¶25. In December 2016, defendant unnecessarily caused a gas utility to be shut off for four days so that defendant’s property could be fumigated. Id., ¶29. Beginning in 2012, defendant would carelessly use plaintiff’s water hose. Defendant also failed to maintain the sump screen. Id., ¶30. Starting in 2017, defendant began harassing plaintiff and her visitors on a regular basis. The harassment includes defendant following plaintiff’s guests to their vehicles; verbally harassing and threatening plaintiff and her guests; and harassing and threatening plaintiff’s workmen. Id., ¶31.

The 6th cause of action incorporates the above allegations.

The court finds that plaintiff fails to allege that defendant engaged in any extreme or outrageous conduct with the intent of causing plaintiff to suffer severe or extreme emotional distress. In particular, the allegations pointed out in the opposition by plaintiff at paras. 22, 28, and 31 are insufficient to show extreme or outrageous conduct. Para. 31 is conclusory. None of the allegations show conduct with the intent of causing plaintiff to suffer severe or extreme emotional distress.

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

Motion to Strike

Defendant requests that the court strike the following:

- para. 39 (“As a direct and proximate result of the intentional, malicious and willful breaches and wrongful conduct by defendants . . . Dodos has suffered serious emotional distress, . . .”) [under 1st cause of action for breach of CC&Rs]

- para. 41 (“California law and the CC&Rs entitle plaintiff to her attorney’s fees and costs upon prevailing in this action against the defendants.”)

- para. 74 (“As a direct and proximate result . . . Dodos suffered serious emotional distress, . . .”) [under the 5th cause of action for negligence]

- para. 81 (punitive damages) [under the 6th cause of action]

- para. 90 (“treble damages for said waste, pursuant to Code of Civil Procedure 732 . . . .”)

- prayer at 4. (“For non-economic damages suffered by Dodos, including, but not limited to, mental and emotional distress, according to proof.”)

- prayer at 5. (“For hospital, professional and incidental expenses . . . and future medical treatment . . . .)

- prayer at 7. (“For treble damages, exemplary, and punitive damages”)

- prayer at 12. (“For reasonable attorneys’ fees”).

Punitive damages

Defendant argues that the allegations are insufficient to support a claim for punitive damages.

The court finds that the allegations are insufficient to show malice, oppression, or fraud.

In light of the ruling on the demurrer as to the 6th cause of action, the motion is GRANTED WITH LEAVE TO AMEND as to para. 81, and prayer at 7 for exemplary and punitive damages.

Emotional distress damages

Defendant argues that such damages are not recoverable because plaintiff is alleging only economic injury.

Defendant seeks to strike para. 39 under the 1st cause of action for breach of CC&Rs and para. 74 under the 5th cause of action for negligence.

Plaintiff has alleged only property damage and not that she also suffered personal injury. Thus, she is barred from recovering emotional distress damages under the 1st and 5th causes of action.

As to the 1st cause of action, “[a] person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations.” Aas v. Superior Court (2000) 24 Cal. 4th 627, 643 (superseded by statute unrelated to the economic loss rule). The rule “prevents the law of contract and the law of tort from dissolving into one another.” Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal. 4th 979, 988. “Generally, ‘damages for mental suffering and emotional distress are . . . not compensable in contract actions.’” Plotnik v. Meihaus (2102) 208 Cal. App. 4th 1590, 1602 (citation omitted). Although exceptions exist, plaintiff has not alleged any.

Under the 5th cause of action she alleges that defendant disregarded preserving and maintaining the value of the development through defendant’s actions, including repeatedly misusing the water-hose, unauthorized cement smearing, paint spillage, oil leaking, and constant unauthorized construction projects in and around the development. TAC, ¶72. Defendant performed certain repairs and renovations so carelessly and negligently as to injure and damage such property and require Dodos to incur and costs and expenses to repair such shoddy and unworkmanlike construction. Id., ¶73. “’No California case has allowed recovery for emotional distress arising solely out of property damage’ . . . .” Erlich v. Menezes (1999) 21 Cal. 4th 543, 554 (citation omitted). See also Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1040 (“mere negligence will not support a recovery for mental suffering where the defendant’s tortious conduct has resulted in only economic injury to the plaintiff.”).

The motion is thus GRANTED WITHOUT LEAVE TO AMEND as to paras. 39 and 74. As to prayer at 4 and 5, these cover damages that are recoverable under a cause of action for nuisance, thus, the motion is DENIED as to prayer at 4 and 5.

Attorney’s fees

Defendant argues that plaintiff has failed to allege any contractual language or statute giving rise to a right to attorney’s fees.

In her opposition, plaintiff cites to Civil Code ;5975, which is part of the Davis-Stirling Act, and states “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.”

The TAC seeks to enforce the CC&Rs, which are governing documents under the Davis-Stirling Act.

The motion is DENIED as to para. 41 and prayer at 12.

Treble damages

The TAC seeks treble damages under CCP ;732, which states: “If a guardian, conservator, tenant for life or years, joint tenant, or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages.”

Defendant argues that CCP ;732 does not apply because plaintiff is asserting a claim for nuisance, not waste. Further, there is no allegation that defendant is a “guardian, conservator, tenant for life or years, joint tenant, or tenant in common of real property.”

The court finds that CCP ;732 does not apply. The allegation that the parties shared a driveway is insufficient to show that defendant falls into any of the categories under CCP ;732.

The motion is GRANTED WITHOUT LEAVE TO AMEND as to para. 90 and prayer at 7.

Defendant is ordered to give notice of the ruling.



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