Demurrer to FAC; Motion to Strike; Motion to Strike
Superior Court of the State of California County of Orange TENTATIVE RULINGS FOR DEPARTMENT N16
HON. Donald F. Gaffney
Counsel and Parties Please Note: Law and Motion in Department N16 is heard on Wednesdays at 9:00 a.m.
Date: July 1, 2026
Tentative Rulings will be posted on the Internet on the day before the hearing by 5:00 p.m. [or earlier] whenever possible. To submit on the tentative ruling, please contact the clerk at (657) 622-5616, after contacting opposing party/counsel. Prevailing party shall give notice of the Ruling and prepare the Order/Judgment for the Court’s signature if required.
NOTE: After posting of tentative rulings, the Court will not take the motion off calendar and will grant a continuance of the motion only upon stipulation of all affected parties.
If no appearances are made on the calendared motion date, then oral argument will be deemed to have been waived and the tentative ruling will become the Court’s final ruling.
# Case Name Tentative 1 Clarke vs. Niguel Shores TENTATIVE RULING: Community Association Motion 1. Demurrer to FAC
Defendant Roslyn M. Zankich demurs to the FAC of Plaintiff in pro per Deborah Clarke. For the following reasons, the demurrer is OVERRULED.
Standard on Demurrer
In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-1405.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) A demurrer tests only the sufficiency of the complaint; a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of
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judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.)
Although courts should take a liberal view of inartfully drawn complaints (see Code Civ. Proc., § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10(a).)
First Cause of Action (Breach of Contract)
Defendant argues Plaintiff does not address the court’s previous order sustaining demurrer and that the FAC alleges no privity of contract between the parties, no specific facts of breach, and no causation or damages tied to Defendant Zankich’s conduct.
The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff’s performance or excuse for nonperformance; (iii) Defendant’s breach; and (iv) damage to plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.)
The court sustained Defendant Zankich’s demurrer to the original complaint on the ground “the Complaint does not allege Plaintiffs performed their obligations under the CC&Rs or have been excused f[rom] nonperformance.” (ROA # 58 [11/26/2025 Minute Order].) The FAC corrects that defect, alleging Plaintiff Clarke has performed her obligations under the CC&Rs, having “faithfully paid quarterly assessments, special assessments, and contributed positively to the community.” (FAC at 16:26-17:8.)
The FAC also alleges facts to support the remaining elements, including: (i) existence of a valid contract binding the parties, the CC&Rs (FAC 3:1-14); breaches by Defendant Zankich, including raising the roof height and modifying the roof line (FAC 25:9-26:6), placing tresses above the existing roof (see FAC 9:8-10:13, 18:17- 20:11), constructing a new structure running adjacent to the length of the easement area (FAC 22:13-17), and altering the direction and flow of drainage such that all water from Defendant Zankich’s property drains upon Plaintiff’s home (FAC at 24:8-25:8); and damage therefrom (see, e.g., FAC at 24:11-26:6 [alleging drainage problems and obstruction of view], 28:3-24).
To the extent Defendant argues the breaches are pled with insufficient specificity, Defendant overlooks established case law providing a plaintiff need only plead such facts as are necessary “to acquaint a defendant with the nature, source and extent of his claims” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550; Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1376 [“a complaint is adequate so long as it apprises the defendant of the factual basis for the claim”]). The allegations in the FAC are sufficient to put Ms. Zankich on notice of the nature of Plaintiff’s claims.
Moving Defendant is ordered to give notice.
Motion 2. Motion to Strike
Defendant Roslyn M. Zankich moves to strike the First Amended Complaint (“FAC”) of Plaintiff in pro per Deborah Clarke. For the following reasons, the motion is DENIED.
Defendant argues the court should strike Plaintiff’s complaint as untimely filed.
Pursuant to Code of Civil Procedure Section 436 the court may, upon a motion made or at any time in its discretion, strike out “any irrelevant, false, or improper matter inserted in any pleading.” A motion to strike is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529, citing Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.)
The court finds the circumstances here do not justify striking Plaintiff’s amended complaint. The court ruled on two successive demurrers, 11/26/2025 and 12/10/2025. Following the second ruling, the court granted Plaintiff 30 days to file and serve an amended complaint. Plaintiff did so, filing and serving the FAC on 01/06/2026.
Moving Defendant to give notice.
Motion 3. Motion to Strike
Defendant Niguel Shores Community Association (“Defendant Association”) moves to strike the entirety or portions of the First Amended Complaint (“FAC”) of Plaintiff in pro per Deborah Clarke.
For the following reasons, the motion is DENIED in part and GRANTED in part.
The following language is HEREBY STRICKEN from Plaintiff’s FAC: “The details of this case and the conduct of Defendants Niguel Shores Community Association and Roslyn Zankich, would allow an award for punitive damages. Plaintiff seeks punitive damages to deter defendants Niguel Shores Community Association and Roslyn Zankich from engaging in this type of conduct ever again” (FAC at 34:20-24); and “10) For punitive damages” (FAC at 35:22).
Standard on Motion to Strike
Pursuant to Code of Civil Procedure Section 436 the court may, upon a motion made or at any time in its discretion, strike out “any irrelevant, false, or improper matter inserted in any pleading.” A motion to strike is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529, citing Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.)
Timeliness
Defendant Association moves to strike Plaintiff’s complaint as untimely filed.
The FAC was timely filed. On 12/10/2025, the court granted Plaintiff 30 days to file and serve an amended complaint that addresses the issues in the court’s ruling. (ROA # 65.) Plaintiff did so, filing and serving the FAC on 01/06/2026.
Punitive Damages
Defendant Association moves to strike the punitive damages allegations.
Punitive damages are available in actions “for breach of an obligation not arising from contract.” (See Civ. Code, § 3294, subd. (a).) In the absence of an independent tort, punitive damages may not be awarded for breach of contract, even where the defendant’s conduct in breaching the contract was willful, fraudulent or malicious. (Cates Constr., Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 61.)
Here, Plaintiff’s sole cause of action is for breach of contract. Plaintiff cannot recover punitive damages on this claim.
Leave to Amend
Plaintiff requests leave to amend to add a claim for negligence.
In ruling on a motion to strike, the court employs the same liberality to amend as used for demurrers. It is an abuse of discretion to deny leave to amend if there is any reasonable possibility the plaintiff can cure the defect. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 168; Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360.)
Plaintiff here proposes amending the complaint to add a negligence claim. Because a negligence claim may support punitive damages (see, e.g., Taylor v. Superior Court (1979) 24 Cal.3d 890), the court finds it appropriate to grant Plaintiff leave to amend to add the proposed negligence claim.
Should Plaintiff desire to file an amended complaint that addresses the issues in this ruling, Plaintiff shall file and serve the amended complaint within 30 days of service of the notice of ruling.
Moving Defendant to give notice.
2 Martin vs. FCA TENTATIVE RULING: US LLC For the reasons set forth below, Defendant FCA US, LLC’s Demurer to Plaintiff’s First Amended Complaint is OVERRULED as to the 1st through 6th Causes of Action.
Defendants FCA US, LLC shall file an answer or other pleading in response to the First Amended Complaint for Violation of Statutory Obligations within 30 days of service of the notice of ruling. (See Cal. Rules of Court rule 3.1320(j).)
Legal Standard on Demurrer
A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what