Smith vs. Canyon Glen Community Association

The Court awards the amount of $13,591.00 in attorneys’ fees. Defendant is ordered to pay Plaintiff the sum of $13,591.00.

The OSC re: dismissal is continued to December 21, 2026 at 10:00 a.m. in Department C27. Plaintiff is ordered to appear if this matter has not been dismissed.

Plaintiff is ordered to give notice.

109 2025-01526045 1. Demurrer to Complaint 2. Motion to Strike Portions of Complaint Freeman vs. Massage Envy Before the Court is Defendant Sheila Horowitz’s Demurrer and Motion to strike parts of Franchising, LLC Plaintiff Brittany Freeman’s Complaint.

Per the Notice of Plaintiff’s counsel, counsel for both parties met and conferred on 7/7/26 (ROA 91.) In the Notice, Counsel for Plaintiff indicates that as a result of the meet and confer effort, Plaintiff agrees to file a first amended complaint addressing the issues raised in the Motion.

Thus, the Court finds the Demurrer and Motion to strike moot.

110 2025-01520411 1. Demurrer to Amended Complaint 2. Motion to Strike Portions of Complaint Smith vs. Canyon 3. Case Management Conference Glen Community Association Defendants Canyon Glen Community Association (“HOA”), Powerstone Property Management (“Manager”), and Rene Decker’s (“Decker”) Demurrer to Plaintiff James Smith’s (“Plaintiff”) First Amended Complaint is sustained in part and overruled in part. The demurrers to the second cause of action for breach of fiduciary duty and the fourth cause of action for gross negligence, as alleged against HOA, are overruled. The remainder of the demurrer is sustained with 15 days leave to amend.

1st COA for Breach of Contract & 3rd COA for Breach of the Implied Covenant “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

The demurrer to the breach of contract claim is sustained, because Plaintiff has failed to allege facts showing how HOA materially breached the settlement agreement by sending the (second) check via mail approximately two months after the agreement was entered. Additionally, Plaintiff does not allege any damages from the delay of receiving the (second) check. Thus, the demurrer to the breach of contract claim is sustained.

The demurrer to the breach of implied covenant claim is sustained, because it is premised entirely on the same breach alleged as a breach of contract. (See FAC at ¶ 86.) The breach of the implied covenant must involve “something beyond breach of the contractual duty itself.” (Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 474; see Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 528.)

The demurrer to both claims are sustained with leave to amend.

2nd COA for Breach of Fiduciary Duty “The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach.” (Knox v. Dean (2012) 205 Cal.App.4th 417, 432.) Here, Plaintiff alleges HOA “had a fiduciary duty to them [sic] to maintain the sewer lines properly, as well as the pipes underneath Plaintiff’s unit.” (FAC at ¶ 79.) Plaintiff also alleges HOA “had a fiduciary duty to maintain the pipes in the common areas and underneath the building and failed to do so.” (FAC at ¶ 81.)

Defendants contend Plaintiff’s allegations are “contradicted by the Water Intrusion Policy,” which Plaintiff admits states, “it is the owner’s responsibility to maintain pipes UNDERNEATH their unit,” although Plaintiff believes is “is clearly the responsibility of the HOA.” (Dem. at p. 13.)

A “homeowners association has a fiduciary relationship with its members-at least with respect to dealing with the homeowner's unit,” the scope of that duty depends on its source. “The duties and powers of a homeowners association are controlled both by statute and by the association's governing documents.” (Ostayan v. Nordhoff Townhomes Homeowners Assn., Inc. (2003) 110 Cal.App.4th 120, 127.)

The “Water Intrusion Policy” states: “The Canyon Glen Community Association (‘Association’) is responsible for the maintenance, repair and replacement of water, waste and sewer pipes and plumbing that serve more than one unit, or, that are located outside the perimeter walls, floors or ceilings surrounding a unit. (CC&Rs, Section 9.01(j)).” (ROA 2, Exh. A at p. 1.) Because Plaintiff has alleged that at least some of the pipes are in “common areas,” the Court overrules the demurrer to the breach of fiduciary duty claim. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1681-1682 [a demurrer “does not lie to a portion of a cause of action”].)

4th COA for Gross Negligence “Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082.) “However, to set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant,” in that the conduct alleged “must rise to the level of “either a ‘ “ ‘want of even scant care’ ” ' or ‘ “ ‘an extreme departure from the ordinary standard of conduct.” (Ibid.)

Here, Plaintiff’s gross negligence claim against HOA is also premised on its “duty to repair and maintain the sewer lines around Plaintiff’s unit” and the breach of that duty. (FAC at ¶ 90.) Additionally, Plaintiff alleges Manager and Decker breached “a duty to manage the property consistent with their contract with [HOA].” (FAC at ¶ 91.)

For the reasons, above, the Court overrules the demurrer brought by HOA. Plaintiff is alleging not only a failure to maintain the pipes underneath his unit, but also in the “common areas.”

As to Manager and Decker, however, the demurrers shall be sustained with leave to amend. Plaintiff alleges a duty Manager and Decker owed to HOA, “consistent with their contract with [HOA],” but Plaintiff fails to allege facts showing they owed a tort duty to him.

5th COA for Intentional Infliction of Emotional Distress The elements of an IIED claim are: “(1) outrageous conduct by the defendant; (2) the

defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” The “outrageous” conduct “must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160–161.) “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Kelley v.

The Conco Companies (2011) 196 Cal.App.4th 191, 215, citation omitted.) Severe emotional distress refers to “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051, citation omitted.)

Here, Plaintiff alleges he “has been trying to get the matter resolved for almost two years with no response by Defendant”; and, “the constant uncertainty regarding the sewer lines and the possibility of backfill exploding into Plaintiff’s unit has caused constant stress to Plaintiff.” (FAC at ¶¶ 98-99.) These allegations do not rise to a showing of “outrageous conduct” by the HOA that was intended or designed to cause Plaintiff severe, emotional distress. “Intentional infliction of emotional distress requires conduct which is especially calculated to cause and does cause the claimant mental distress of a very serious nature.” (Coon v.

Joseph (1987) 192 Cal.App.3d 1269, 1273, emphasis in original [“Although it was evident that defendants had caused plaintiffs untold distress, they had not acted with the purpose of causing them emotional distress”].) The allegation that HOA has been slow to respond or has not responded in a manner satisfactory to Plaintiff may be an “annoyance” or a “petty oppression,” but it does not amount to conduct that is “ so extreme as to exceed all bounds of that usually tolerated in a civilized society.”

Neither does the “constant stress” described by Plaintiff.

The demurrer to the IIED claim is sustained with leave to amend.

6th COA for Fraud, 7th COA for Conspiracy to Commit Fraud, & 9th COA for Intentional Misrepresentation “The elements of fraud, which give rise to the tort action for deceit, are (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.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Every element of fraud must be pleaded with specificity.

The particularity requirement for fraud requires the pleading of facts showing how, when, where, to whom, and by what means the representations were made. (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 73.) This is to provide the defendant with notice and to give the court enough information to assess whether there is a foundation for the charge of fraud. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.)

Plaintiff’s fraud claim, here, is based on the allegations that, “Defendants, by their constant and inexplicable tree planting program, were trying to cover up deteriorating sewer lines which it was incumbent upon Defendants to maintain.” (FAC at ¶ 104.) Plaintiff further alleges “Defendants attempted to reach a ‘settlement agreement’ under false pretenses, trying to assign liability to Plaintiff for the maintenance of underground pipes, sewer lines and gas lines that were part of Defendants’ responsibility.” (FAC at ¶ 106.) Under the intentional misrepresentation claim, Plaintiff adds: “The emails attached show that Defendant Powerstone was promising it would seek the HOA to deal with the water retention issues and never did”; [HOA] was tasked to maintain the common areas and represented to Plaintiff repeatedly that it was his problem, not that of the HOA, knowing

better that this was not the case; and, Defendants also stated that the tree plantings were there to create shade whereas these tree plantings were done to obstruct investigation into failed maintenance of these lines, which was the responsibility squarely of Defendants.”

These allegations are not sufficient to state a claim for fraud. Plaintiff fail to plead fraud with the requisite specificity, because it is unclear what the fraudulent misrepresentation was, who made it, and who it was made to. Referring the Court to see the “emails attached” is not a substitute for proper pleading.

Because Plaintiff’s fraud claims fail, so, too, does his claim for “conspiracy to commit fraud.” Civil conspiracy is “not an independent cause of action,” but a “theory of co-equal legal liability under which certain defendants may be held liable for ‘an independent civil wrong.’” (Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1291.) “Under a conspiracy theory of recovery, liability depends on the actual commission of a tort.” (Ibid.)

The demurrers to all three claims are sustained with leave to amend.

8th COA for Violation of Davis Stirling Act § 4775 Common interest developments are governed by the Davis-Stirling Common Interest Development Act. (Civ. Code, § 4000; Retzloff v. Moulton Parkway Residents' Assn., No. One (2017) 14 Cal.App.5th 742, 748.) Within the Act, section 4775 states, in relevant part, “Except as provided in paragraph (4), unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, and maintaining the common area.” (Civ.

Code, § 4775, subd. (a)(1).) In turn, paragraph (4) states: “Unless otherwise provided in the declaration of a common interest development, the owner of each separate interest is responsible for maintaining the exclusive use common area appurtenant to that separate interest and the association is responsible for repairing and replacing the exclusive use common area.” (Civ. Code, § 4775, subd. (a)(4).)

Defendants demur to this claim, because (among other grounds) Plaintiff has failed to include the certificate required under section 5950 of the Act, which states:

(a) At the time of commencement of an enforcement action, the party commencing the action shall file with the initial pleading a certificate stating that one or more of the following conditions are satisfied: (1) Alternative dispute resolution has been completed in compliance with this article. (2) One of the other parties to the dispute did not accept the terms offered for alternative dispute resolution. (3) Preliminary or temporary injunctive relief is necessary. (Civ. Code, § 5950, subdivision (a).)

The failure to file a certificate pursuant to subdivision (a) “is grounds for a demurrer or a motion to strike unless the court finds that dismissal of the action for failure to comply with this article would result in substantial prejudice to one of the parties.” (Civ. Code, § 5950, subd. (b).)

In his opposition, Plaintiff does not deny that his pleading is not accompanied by the requisite declaration. However, he claims the demurrer should be overruled because the court should find that dismissal of the action would result in substantial prejudice. (Opp’n at p. 10.) This argument is not persuasive, because his claims for gross negligence and breach of fiduciary duty are based on the same allegations. The dismissal of this claim does not necessarily result in a dismissal of the entire action. The demurrer is sustained with

leave to amend.

10th COA for Violation of California Civil Code § 3479 “Nuisances are defined by statute: ‘Anything which is injurious to health ... 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 ... is a nuisance.’” (Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 402, citing Civ. Code, § 3479.) A nuisance may be public or private. “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Id., citing Civ.

Code, § 3480.) As “a general rule, only public prosecutors authorized by statute may sue for a public nuisance on behalf of the community.” (Rincon Band of Luiseno Mission Indians etc. v. Flynt (2021) 70 Cal.App.5th 1059, 1100.) However, Civil Code section 3493 permits a private person to maintain an action for public nuisance “if it is specially injurious to himself, but not otherwise.” (Civ. Code, § 3493.)

Here, Plaintiff alleges “the obstruction of the repair of the sewer lines risks causing a potential effusion of sewer to the HOA residents, causing a public nuisance.” (FAC at ¶ 130.) Plaintiff has not alleged any facts showing a nuisance “which affects at the same time an entire community or neighborhood, or any considerable number of persons.” Rather, in his FAC, Plaintiff expressly alleges that he “has noted that there are several issues regarding the underground pipes in the common areas around his unit”; and, that he “lives in a unit that overlooks the gas line, a fact that is extremely relevant to the issues.” (FAC at ¶¶ 11, 14, emphasis added.) As such, the demurrer is sustained with leave to amend.

11th COA Injunctive relief. By his eleventh “cause of action,” Plaintiff “requests the Court to provide him injunctive relief by ordering Defendant HOA to maintain the sewer lines,” to enjoin the HOA “from any further tree planting until the situation regarding the sewer lines can be properly assessed,” and “to remove the trees covering up gas and sewer lines.” (FAC at ¶¶ 133- 135.)

However, Plaintiff’s request for injunctive relief is not tethered to any cause of action. “Injunctive relief is a remedy, not a cause of action. A cause of action must exist before a court may grant a request for injunctive relief.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65, citations omitted.) The demurrer to the injunctive relief “claim” is sustained with leave to amend.

Plaintiff shall file and serve his amended pleading within 15 days of the notice of ruling.

In light of the ruling on the demurrer, Defendants’ motion to strike (ROA 23) is moot.

The case management conference is continued to February 8, 2027 at 10:00 a.m. in Department C27.

Defendants shall give notice of the ruling.