Demurrer
Thus, based on the record it appears counsel’s attempt at informal resolution was insufficient and the meet and confer letter was not a serious attempt to obtain an informal resolution of each issue. Therefore, Defendant’s request for sanctions is denied. The Court further denies a request for sanctions by Plaintiff in that Plaintiff was not successful in opposing the instant motion, and Plaintiff’s counsel’s efforts at resolution were made after the deposition was taking place. The Court does order each party will bear their own expenses in relation to the continued deposition.
4. CU0001912 Old Republic Insurance Company et al vs. United Parcel Service, Inc. et al
Appearance required by Plaintiffs Old Republic and USF Reddaway to show cause as to why sanctions in the amount of $1,000.00 jointly and severally should not issue against these plaintiffs. The Court is in receipt of the Declarations of S. Henslee Smith and Julian C. Sonnega Re: Order to Show Cause Hearing. The Court does not find said declarations reasonably absolve Plaintiffs from appearance at the MSC based on Plaintiffs’ counsels’ clear understanding the entire case was not settled. The Court notes an OSC did not issue to Plaintiff Gary Oliver, yet one should have in that Mr.
Oliver failed to appear at the MSC as well forcing the Court to vacate trial dates. Thus, an OSC shall issue as to this plaintiff as to why sanctions in the amount of $1,000.00 should not issue for the failure to appear forcing the vacating of a jury trial. Consolidated cases become a single case. Once consolidated, there no longer remains two separate cases. As such, each case no longer existed after consolidation as a separate case. Counsel were all aware of this as set forth in the stipulation to consolidate filed with the Court on June 5, 2025.
Further, a notice of settlement of the entire case is just that – settlement of the entire case – all parties and all causes of action. The Court is inclined to issue sanctions in the amount of $1,000.00 as to Plaintiffs Old Republic and USF Reddaway jointly and severally due to the non-appearance at the MSC, failure to properly notice settlement and dismiss certain parties prior to MSC and trial if such was the intent, failure to show sufficient cause as to why sanctions should not issue and failure to correct these issues despite noticed OSC and the passage of approximately two (2) entire months since the OSC was noticed.
5. CU0002399 Linda Rodriguez vs. Lake of the Pines Association, a California non- profit mutual benefit Corporation et al
Defendants’ Demurrer to Plaintiff’s Complaint is overruled in part, sustained with leave to amend in part, and sustained without leave to amend in part. Plaintiff shall file and serve her amended complaint within ten (10) days of service of the notice of entry of this order.
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Request for Judicial Notice
Defendants’ unopposed request for judicial notice is granted.
In addition, on the Court’s own motion, the Court takes judicial notice of Plaintiff’s Claim and Order to Go to Small Claims Court filed on October 11, 2024 in Nevada County Superior Court Case No. SC0000484.
Legal Standard
On demurrer, a court's function is limited to testing the legal sufficiency of the complaint. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. Miklosy v. Regents of the Univ. of Cal. (2008) 44 Cal.4th 876, 883. A court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.
Contentions, deductions and conclusions of law, however, are not presumed as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967. A plaintiff is not required to plead evidentiary facts supporting the allegation of ultimate facts; the pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. A demurrer is not the appropriate procedure for determining the truth of disputed facts. Fremont Indemnity Co., 148 Cal.App.4th at 113-14.
Fifth Cause of Action: Breach of Fiduciary Duty – SUSTAINED WITH LEAVE TO AMEND
Defendant Lake of the Pines Association (“LOPA”) demurrer to Plaintiff’s fifth cause of action for breach of fiduciary duty asserting this cause of action is time barred.
While Defendants argue the cause of action accrued on June 4, 2021 when a neighboring property owner felled a redwood tree located on Plaintiff’s property without obtaining permission, Plaintiff asserts and the Complaint alleges the breach arose from Defendant’s refusal to enforce the CCRs against this neighbor. The Complaint does not indicate when it became clear to Plaintiff LOPA was not going to take any action to enforce the CCRs. The Complaint does say “Instead, the ASSOCIATION improperly intervened...”. See, Complaint, Pg. 3, ll. 14- 18. The Complaint then goes on to allege LOPA trespassed onto Plaintiff’s property on October 14, 2022 to paint orange and white boundary marker lines which favored the neighbor. See, Complaint, ¶ 13.
At bar, the Complaint asserts LOPA breached its duties by “favoring the neighbor, engaging in selective enforcement, harassing Plaintiff, trespassing...and refusing to stop the neighbors’ ongoing trespasses and encroachments.” Complaint, ¶ 72. While it appears some of the allegations made by Plaintiff occurred within the four (4) year relevant statute, the Complain is vague to the point it is unclear to the Court when Plaintiff knew or should have know her fifth cause of action arose.
However, it appears Plaintiff could amend her Complaint to cure this issue.
Accordingly, the Court sustains the demurrer with leave to amend to make clear what facts Plaintiff bases the fifth cause of action, when those facts arose, and how they support the claim.
Second, Fourth, and Ninth Causes of Action for Uncertainty- SUSTAINED
Defendant argues Plaintiff’s second, fourth, and ninth causes of action are uncertain and ambiguous because they are not valid causes of action under California law. As discussed more fully below, the Court overrules the demurrer as to the second cause of action, and sustains without leave to amend the fourth and ninth causes of action.
Second Cause of Action: Boundary Interference- OVERRULED
Plaintiff’s second cause of action for boundary interference seeks relief of quiet title pursuant to Code of Civil Procedure §§ 760.010 et seq., as well as declaratory relief regarding the boundaries of her property. The Complaint adequately pleads a cause of action for quiet title. Therefore, the demurrer as to the second cause of action is overruled.
Fourth and Ninth Causes of Action: Harassment and Retaliation- SUSTAINED
Defendant argues Plaintiff’s claims for harassment and retaliation are not valid causes of action under California law. In her opposition, Plaintiff asserts her claims for harassment and retaliation are allowed by Code of Civil Procedure § 527.6.
“Code of Civil Procedure section 527.6 provides a specialized procedure for a petitioner who has suffered harassment within the meaning of the statute to expeditiously seek a limited judicial remedy—injunctive relief to prevent threatened future harm. ... A petitioner who also desires retrospective relief in connection with the same underlying conduct, such as tort damages, must do so separately.” Olson v. Doe (2022) 12 Cal.5th 669, 673. However, Code of Civil Procedure section 527.6 establishes a petitioning procedure that requires the use of forms created by the Judicial Council of California.
Code Civ. Proc. § 527.6(x)(1). [C]urrent law requires that ‘[t]he petition and response forms ... be simple and concise, and their use by parties in actions brought pursuant to [section 527.6] is mandatory.” Olson, supra, at 678 (quoting Code Civ. Proc. § 527.6(x)(1), italics added). Because Plaintiff failed to use the mandatory forms, and cannot remedy the defect by amending her Complaint, the demurrer is sustained without leave to amend.
Sixth and Seventh Causes of Action for Res Judicata – SUSTAINED and SUSTAINED WITH LEAVE TO AMEND, respectively
Defendant demurs to the sixth and seventh causes of action, claiming they are barred by res judicata, because Plaintiff already pled and litigated the same issues in a prior small claims action. As discussed below, the Court sustains the demurrer as to the sixth and seventh causes of action with leave to amend.
At bar, the sixth cause of action asserts violations of Civil Code § 5855. The Complaint states the small claims action also asserted violations of Civil Code § 5855. Complaint, ¶ 27. The seventh cause of action asserts violations of Civil Code § 5200, noting the violation was previously adjudicated "for a similar refusal of records”. Complaint, ¶ 84. The small claims court held the association unreasonably withheld access to association records under Civil Code § 5235(a) on July 30, 2024, August 10, 2024, and August 27, 2024, and also that Plaintiff did not sustain her burden with respect to all other claims. RJN, Ex.
1.
The Court notes, the Claim in SC0000484 asserts violations of “Civil Codes 5200, 5855, 4935” occurring between July 14, 2024 through August 2, 2024, yet clearly the small claims court heard and decided allegations stemming through at least August 27, 2024. See, Claim, Pgs. 2-3, ¶ 3 and resulting Memorandum Decision and Order both filed in SC0000484.
Plaintiff’s Opposition asserts the claims are not duplicative in that LOPA has continued to violate the Civil Code even after the violations found by the small claims ruling.
As to the sixth cause of action for violation of Civil Code §5855, it appears clear all facts alleged in support of this claim where at issue in the small claims case. Thus, the Court sustains without leave to amend the sixth cause of action.
As to assertions LOPA violated Civil Code §5200, Plaintiff asserts LOPA “continues to violate Civil Code section 5200”. (See, Complaint, pg. 3, line 25.) However, the Court cannot determine when and how Plaintiff asserts such has occurred. Perhaps, Plaintiff can cure this defect via the amendment. Accordingly, as to the seventh cause of action, the demur is sustained with leave to amend.
Seventeenth Cause of Action: Injunctive Relief- SUSTAINED
Defendant demurs to the seventeenth cause of action for injunctive relief asserting the Complaint improperly asserts a cause of action for injunctive relief which is a remedy and not a cause of action. The Court agrees. The demurrer to the seventeenth cause of action is sustained without leave to amend, but this order shall not preclude Plaintiff from seeking that remedy for the sixteenth cause of action for declaratory judgment.
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