Demurrer
Phillips, ¶¶ 3-7, 10.) Indeed, it appears that the party that was not served with the opposition was the moving party, Powerstone. Nevertheless, as a substantive reply has been filed, the Court perceives no prejudice, and considers the opposition.
Powerstone’s Request for Judicial Notice Powerstone requests that the Court take judicial notice of two documents: (1) Powerstone’s Property Management, Inc.’s California Secretary of State Statement of Information (Ex. 2); and (2) Pages from Pointe Surfside Homeowner’s Association’s Public Website (Ex. 3) pursuant to Evidence Code section 452(h). Specifically, Powerstone requests that the Court take judicial notice of facts contained within these documents, i.e., that Powerstone is a property management company, and that Powerstone became the property management company for Defendant, Pointe Surfside Homeowner’s Association (the “HOA”) on June 1, 2025.
The Court GRANTS the request for judicial notice that Powerstone is a property management company pursuant to Evidence Code section 452(h), which is not disputed by Plaintiffs.
The Court DENIES the request for judicial notice as to the pages from Pointe Surfside Homeowner’s Association’s Public Website to establish the fact that Powerstone became the property management company for the HOA on June 1, 2025. “ ‘Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.’ [Citation.] While courts take judicial notice of public records, they do not take judicial notice of the truth of matters stated therein. [Citation.] ‘When judicial notice is taken of a document, . . . the truthfulness and proper interpretation of the document are disputable.’ [Citation.]” (Herrera v.
Deutsche Bank Nat’l Trust Co. (2011) 196 Cal.App.4th 1366, 1375; See Searles Valley Minerals Operations, Inc. v. State Bd. Of Equalization (2008) 160 Cal.Appl.4th 514, 519 [finding request for judicial notice of materials contained on website pages was properly denied as “although it might be appropriate to take judicial notice of the existence of the Websites, the same is not true of their factual content”].)
Uncertainty Powerstone contends that it demurs to the firth through ninth causes of action on the grounds of uncertainty. Code of Civil Procedure section 430.10(f) provides that a defendant may demur on the ground that the pleading is uncertain. “As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty
existing in the allegations actually made. (
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A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 [disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300].) “ ‘. . . “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” [Citation.]’ [Citation.] (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)
Here, Powerstone does not specify how and why each of the nine causes of action is uncertain. Therefore, the demurrer on the ground that each of the nine causes of action is uncertain is OVERRULED.
First Cause of Action for Nuisance, Third Cause of Action for Negligence, and Sixth Cause of Action for Premises Liability Powerstone contends that Plaintiffs’ first, third, and sixth causes of action for nuisance, negligence, and premises liability fail to state facts sufficient to state a cause of action as they arise from events that are alleged to have occurred between December 2021 and October 2023, during a time that Powerstone was not the HOA’s management company. Powerstone asserts that it was not until June 1, 2025, that Powerstone and the HOA entered into a management agreement pursuant to which Powerstone provided management services to the HOA.
Plaintiffs contend that the demurrer to the first, third, and sixth causes of action should be overruled because Plaintiffs’ claims are not limited to the initial creation of the defect, and Plaintiffs allege an ongoing, unresolved, and dangerous condition affecting the property located at 4682 Warner Avenue, C112, Huntington Beach, California 92646 (the “Property”) and common areas, including continuing water intrusion, mold contamination, failure to remediate, loss of use, and an uninhabitable residence.
Plaintiffs also assert that Powerstone relies on extrinsic materials outside the Complaint to argue that it became the HOA’s management company on June 1, 2025. Plaintiffs further contend that even if the Court takes judicial notice that Powerstone became the HOA’s manager on June 1, 2025, that does not establish that Powerstone lacked notice, that the water intrusion had ended, that the mold condition had been remediated, that the residence was habitable, that Powerstone lacked access to prior records, or that Powerstone acted reasonably, and that at most, Powerstone’s materials raise factual issues regarding the scope and timing
of its management role, which cannot defeat Plaintiffs’ claims at the pleading stage.
Powerstone’s contention that it did not become the property manager for the Property until June 1, 2025, is a fact that is not the proper subject of judicial notice and is extrinsic to the Complaint and may not be considered. A demurrer can only be used to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)
Therefore, Powerstone fails to establish that it may not be subject to liability for the first, third, and sixth causes of action on the ground that the alleged wrongful conduct predates their management of the Property. The demurrer to the first, third, and sixth causes of action is OVERRULED.
Second Cause of Action for Breach of Contract and Eighth Cause of Action for Breach of Fiduciary Duty Powerstone contends that Plaintiffs’ second cause of action for breach of contract (CC&R) fails state facts sufficient to constitute a cause of action against Powerstone as this claim may only be brought against a homeowner’s association, an owner, or both, and cannot be brought against a management company under Civil Code section 5975.
Powerstone also contends that Plaintiffs’ eighth cause of action for breach of fiduciary duty is alleged against the HOA, that the conduct complained of is specifically attributed to the HOA, and that Plaintiffs do not and cannot allege that Powerstone, a management company, has or had any fiduciary duties to Plaintiff, such that Plaintiffs fail to allege facts sufficient to state a cause of action for breach of fiduciary duty as to Powerstone.
Plaintiffs contend that the demurrer to the second and eighth causes of action should be overruled, and that while Plaintiffs acknowledge that the HOA is the primary party obligated under the CC&Rs to maintain and repair the common areas, and that the HOA owes fiduciary duties to homeowners and members, the Complaint alleges that Defendants and DOE defendants acted as agents, servants, and employees of one another, provided services relating to the Property, and were responsible for managing, maintaining, repairing, supervising, and controlling the Property and common areas. “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 821.) The three elements of a cause of action for breach of
fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages. (Id. at p. 820.) “[T]he mere placing of a trust in another person does not create a fiduciary relationship.’ (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 13, 101 Cal.Rptr. 499.) As the court observed in Committee on Children’s TV, supra, 35 Cal.3d at page 221, 197 Cal.Rptr. 783, 673 P.2d 660, ‘before a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.’” (See Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 246.)
Civil Code section 5975 states: “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(a).)
The second and eighth causes of action are brought against Defendant HOA, and DOES 1-50 only. The second cause of action expressly alleges that “Section 5.3 of the CC&Rs expressly places the burden and responsibility on Defendant [HOA] to repair and maintain the Common Areas.” (Complaint, ¶ 54.) The eighth cause of action alleges that “[a] homeowners’ association and its board members owe a fiduciary duty to its homeowners and members that requires that the HOA act with the utmost good faith in the best interests of its homeowners.” (Complaint, ¶ 115.)
The Complaint alleges, in relevant part: “Plaintiffs are further informed and believe, and thereon Defendant was, that each of these fictitiously named Defendants, at all relevant times, owned, possessed, managed, operated, leased, rented, maintained, and was responsible for supervising and caring for the Property so as to ensure it was in a safe and habitable condition. DOES 1-50 failed to maintain, repair and /or remediate the Property. DOES 1-50, at all times mentioned herein, controlled and/or supervised the Property or those common areas that affected the Property.
Plaintiffs are informed and believe and based thereon alleges, that each of the fictitiously named Defendants is negligently responsible in some manner for the occurrences alleged in this complaint, and Plaintiffs injuries as herein alleged were proximately caused by Defendant’s negligence.” (Complaint, ¶ 11.) It is also alleged that, “Defendant sued herein, and those fictitious Defendants sued as DOES 1-50 are the agents, servants, and employees of each of the other Defendants and in doing the
things hereinafter alleged, were acting in the course and scope of said agency and employment.” (Complaint, ¶ 12.)
Based on the foregoing, Plaintiffs have not sufficiently alleged a basis for a breach of the CC&Rs or breach of fiduciary duty against Powerstone, which is a property management company. Plaintiffs’ assertion that it may plead a claim for breach of the CC&Rs or breach of fiduciary duty against Powerstone based on agency, negligent undertaking, participation, aiding and abetting, and ordinary negligence do not specifically address these causes of action and are not supported by citation to authority. The court may “‘disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which [a party] reached the conclusion [he or she] wants [the court] to adopt.’” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 citing City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.)
The demurrer to the second and eighth causes of action are SUSTAINED, with 10 days’ leave to amend.
Fourth Cause of Action for Fraud/Concealment and Fifth Cause of Action for Negligent Misrepresentation Powerstone contends that Plaintiffs’ fourth cause of action for fraud/concealment is brought against Defendant Certified HOA Management, Inc., and that the conduct complained of is attributed specifically to Certified HOA Management, Inc. Powerstone also contends that Plaintiffs’ fifth cause of action for negligent misrepresentation is similarly flawed as Powerstone was not the management company prior to or at the time that Plaintiffs purchased the Property and, the cause of action for negligent misrepresentation is alleged with specificity only as to Certified HOA Management, Inc.
Plaintiffs contend that the demurrer to the causes of action for fraud/concealment and negligent misrepresentation ignores the Doe allegations, the continuing nature of the alleged misconduct, and Plaintiffs’ ability to amend. Plaintiffs’ assert that their fraud and negligent misrepresentation theories are not limited to the original purchase, and that they allege continuing concealment, omission, and failure to disclose the true condition of the Property, not merely a completed historical representation.
“ ‘The elements of fraud that will give rise to a 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.’ ” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.)
“Fraud must be pleaded with particularity. General and conclusory allegations are inadequate. [Citation.]” (Laukhart v. El Macero Homeowners Assn. (2023) 92 Cal.App.5th 889, 903.) “Fraud must be specifically pleaded; a general pleading of the legal conclusion of fraud is insufficient. Every element of the cause of action must be alleged in full, factually and specifically. [Citation.]” (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1249.) “This pleading requirement of specificity [for a fraud cause of action] applies not only to the alleged misrepresentation, but also to the elements of causation and damage.” (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 776.)
The fourth cause of action for fraud/concealment is asserted only against Defendant Certified HOA Management, Inc. and DOES 1-50, but asserts facts solely pertaining to conduct by Defendant Certified HOA Management. (Complaint, ¶¶ 71- 82.) The fifth cause of action for negligent misrepresentation is also asserted only against Defendant Certified HOA Management, Inc. and DOES 1-50. There are no facts alleged as to any fraud or misrepresentations by Powerstone. Accordingly, the demurrer to the fourth and fifth causes of action are SUSTAINED, with 10 days’ leave to amend.
Seventh Cause of Action for Intentional Infliction of Emotional Distress Powerstone contends that Plaintiffs’ seventh cause of action for intentional infliction of emotional distress fails to plead any facts to support this claim against Powerstone as the facts pled pre-date Powerstone’s term as the HOA’s management company, and do not mention what Powerstone did or did not do in support of this cause of action.
Plaintiffs contend that the demurrer to the cause of action for intentional infliction of emotional distress should be overruled, or that Plaintiffs should be allowed leave to amend as Plaintiffs can allege Powerstone assumed management while the residence remained uninhabitable, the master bedroom remained gutted and unusable, and the commonarea source of water intrusion remained unresolved. Plaintiffs assert that if Powerstone knew or should have known of those conditions and nevertheless failed to investigate, repair, remediate, disclose, warn, coordinate repairs, or abate the nuisance, those facts support reckless disregard of the probability of causing severe emotional distress, and that at minimum, whether this conduct is sufficiently outrageous is fact-intensive and should not be resolved on demurrer.
“A cause of action for intentional infliction of emotional distress exists when there is ‘(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’s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050– 1051.) “The complaint must plead specific facts that establish severe emotional distress resulting from defendant’s conduct. [Citation.]” (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal. App. 4th 1093, 1114.)
The Complaint does not allege any facts specific to DOE defendants and/or Powerstone to support a cause of action for intentional infliction of emotional distress against Powerstone. (Complaint, ¶¶ 107-111.) The demurrer to the seventh cause of action is SUSTAINED, with 10 days’ leave to amend.
Ninth Cause of Action for Loss of Consortium Powerstone contends that Plaintiff’s ninth cause of action for loss of consortium fails to state facts sufficient to constitute a cause of action against Powerstone as no facts are pled whatsoever in support of this cause of action.
Plaintiffs contend that the loss of consortium claim is derivative of Plaintiffs’ underlying tort claims, and that because Plaintiffs have sufficiently alleged claims for nuisance, negligence, premises liability, concealment, negligent misrepresentation, and intentional infliction of emotional distress, the loss of consortium claim survives. Plaintiffs assert that, if necessary, Plaintiffs can amend to allege that Powerstone’s post-takeover failure to address the still-uninhabitable condition prolonged the spouses’ loss of companionship, comfort, care, assistance, society, emotional support, household support, and normal marital life.
There are no allegations under the ninth cause of action to support this cause of action. (See Complaint at p. 23.) The demurrer to the ninth cause of action is SUSTAINED, with 10 days’ leave to amend.
Powerstone to give notice. 104 Barajas vs. Iniguez, 24-01422858 Defendant Norma Iniguez (“Defendant”) moves pursuant to Code of Civil Procedure section 1048 and California Rules of Court, rule 3.350 for an order consolidating (1) Norma Iniguez v. Roberto Barajas, OCSC Case No. 30-2025- 01474457 and (2) Roberto Barajas v. Norma Iniguez, OCSC Case No. 30-2024-01422858. Defendant also moves to continue trial currently set of 10/12/2026 pursuant to California Rules of Court, rule 3.1332.
Plaintiff Roberto Barajas (“Plaintiff”) opposes the motion. Importantly, however, the opposition does not have a proof of service. Regardless, the Court finds Defendant’s arguments persuasive.
Pursuant to Code of Civil Procedure section 1048 and California Rules of Court, rule 3.350, Defendant Norma Iniguez’s Motion to Consolidate the following two cases is GRANTED:
1. Roberto Barajas v. Norma Iniguez, OCSC Case No. 30- 2024-01422858, filed on 08/29/2024.
2. Norma Iniguez v. Roberto Barajas, OCSC Case No. 30- 2025-01474457 filed on 04/10/2025.
The court finds that all procedural requirements set forth in California Rules of Court, rule 3.350 are met. Moreover, the court finds that the actions involve common questions of law and fact such that the interests of the parties and the court would be best served by consolidating the cases. (See Code Civ. Proc., § 1048.)
Moreover, pursuant to California Rule of Court, rule 3.13321, the Court finds that the factors set forth in California Rules of Court, rule 3.1332 weigh in favor of continuing trial and therefore the request to continue the 10/12/2026 trial date is GRANTED. (Cal. Rules of Court, rule 3.1332.) Trial is CONTINUED to April 12, 2027 at 9 a.m.
Moving party to give notice. 105 Peltekci vs. Jaguar Land Rover North America, LLC, 23-01357182 Plaintiffs JOHN PELTEKCI and CHRIS PELTEKCI move for an award of attorney fees under the “lodestar” method in the amount of $44,620.00. Plaintiffs also request a modest “lodestar” multiplier/enhancement of 1.5x, in the amount of $22,310.00, for a total of $66,930.00 in attorney fees. The total amount requested by this motion is $66,930.00. Moving party also requests costs in the amount of $3,025.75.
The plain wording of section 1794, subdivision (d) requires the trial court to base the prevailing buyer’s attorney fee award upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of time spent and the amount charged. (Hanna v. Mercedes- Benz USA, LLC (2019) 36 Cal.App.5th 493, 506.)
Civil Code section 1794 requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge being made for the time expended are reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. A prevailing buyer has the