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

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DEIRDRE HILL

 

Party Details

Plaintiff

DODOS MARIA

Defendants

WEISSMAN CHUCK AN INDIVIDUAL

DOES 1-25

WEISSMAN JACKIE AN INDIVIDUAL

WEISSMAN JACKIE

Attorney/Law Firm Details

Plaintiff Attorney

DEESE PAUL H.

 

Court Documents

Stipulation and Order

7/31/2019: Stipulation and Order

Complaint

3/1/2017: Complaint

Civil Case Cover Sheet

3/1/2017: Civil Case Cover Sheet

Legacy Document

4/7/2017: Legacy Document

Minute Order

7/21/2017: Minute Order

Minute Order

10/4/2017: Minute Order

Other -

10/4/2017: Other -

Legacy Document

11/13/2017: Legacy Document

Case Management Statement

11/30/2017: Case Management Statement

Substitution of Attorney

12/6/2017: Substitution of Attorney

Other -

12/20/2017: Other -

Legacy Document

12/20/2017: Legacy Document

Legacy Document

3/14/2018: Legacy Document

Legacy Document

3/14/2018: Legacy Document

Motion to Be Relieved as Counsel

8/3/2018: Motion to Be Relieved as Counsel

Minute Order

8/3/2018: Minute Order

Declaration

12/28/2018: Declaration

Notice

3/8/2019: Notice

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: YC071897    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.:

YC071897

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: YC071897    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.:

YC071897

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.