ROBERTS, ET AL. v. McINTYRE, ET AL.

LAW AND MOTION CALENDAR JUNE 12, 2026

3. ROBERTS, ET AL. v. McINTYRE, ET AL., 25CV1786

(A) McIntyre Defendants’ Demurrer

(B) McIntyre Defendants’ Motion to Strike

(C) Tahoe Keys Property Owners’ Association’s Demurrer

(D) Tahoe Keys Property Owners’ Association’s Motion to Strike

(A) McIntyre Defendants’ Demurrer On April 1, 2026, pursuant to Code of Civil Procedure section 430.10, subdivision (e),

defendants Robert McIntyre and Bettina McIntyre (collectively, “defendants”) filed a general demurrer to each of the five causes of action in plaintiffs James Roberts’s and

Susan Roberts’s (collectively, “plaintiffs”)1 first amended complaint (“FAC”) directed to

defendants. Defense counsel declares he met and conferred with plaintiffs’ counsel via

telephone on March 16, 2026, in compliance with Code of Civil Procedure

section 430.41, subdivision (a). (Hallissy Decl., ¶ 3.)

On June 1, 2026, plaintiffs filed a timely opposition and request for judicial notice.

On June 5, 2026, defendants filed a timely reply.

1. Request for Judicial Notice

Pursuant to Evidence Code section 452, subdivisions (b) and (c), the court grants

plaintiffs’ unopposed request for judicial notice of Exhibit 1 (recorded CC&Rs) and

Exhibit 2 (Chapter 37 of the TRPA Code of Ordinances).

2. Legal Principles

“[A] demurrer challenges only the legal sufficiency of the complaint, not the truth or

the accuracy of its factual allegations or the plaintiff’s ability to prove those allegations.”

(Amarel v. Connell (1998) 202 Cal.App.3d 137, 140.) A demurrer is directed at the face of

the complaint and to matters subject to judicial notice. (Code Civ. Proc., § 430.30, subd.

1 Both plaintiffs bring this action in their capacity as trustees of The Roberts Living Trust

dated August 8, 1996, and restated November 18, 2008. (FAC at 1:23–26.)

LAW AND MOTION CALENDAR JUNE 12, 2026

(a).) All properly pleaded allegations of fact in the complaint are accepted as true,

however improbable they may be, but not the contentions, deductions or conclusions of

fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Del E. Webb Corp. v. Structural

Materials Co. (1981) 123 Cal.App.3d 593, 604.) A judge gives “the complaint a

reasonable interpretation, reading it as a whole and its parts in their context.” (Blank,

supra, 39 Cal.3d at p. 318.)

3.

Discussion

As an initial matter, defendants argue that the nuisance, negligence, fraud, and negligent misrepresentation claims in the FAC are time-barred because the allegations

do not “relate back” to the allegations in the original complaint filed July 8, 2025.

Defendants also argue that, “[f]or any TRPA-based claims, where the 60-day and 65-day

limitations periods under Article VI, Section (j)(4) of the Tahoe Regional Planning

Compact expired years before the FAC was filed [sic].” (Dem. at 3:16–18.)

In the original complaint, the nuisance claim alleged defendants’ structure

substantially blocked views and disrupted neighborhood aesthetic harmony; the

negligence claim alleged harm resulting from blocked views, diminished property value,

and loss of enjoyment; the fraud and negligent misrepresentation claims were based on

the same view-and-aesthetics theory of damages. (Dem. at 2:26–3:4.)

In general, courts liberally apply the relation-back doctrine. (Estrada v. Royalty

Carpet Mills, Inc. (2022) 76 Cal.App.5th 685, 715, aff’d (2024) 15 Cal.5th 582.) The amended complaint must be based on the same operative facts–those creating the right

to recovery–alleged in the original complaint. (Barrington v. A.H. Robins Co. (1985) 39

Cal.3d 146, 154.) Relation back “focuses on factual similarity rather than rights or

obligations arising from the facts.” (Dudley v. Dept. of Transp. (2001) 90 Cal.App.4th

255, 265.) In determining whether an amended complaint alleges facts sufficiently

similar to those in the original complaint, the critical issue is whether the original complaint gives defendant adequate notice of plaintiff’s claims. (Hutcheson v. Superior

LAW AND MOTION CALENDAR JUNE 12, 2026

Court (2022) 74 Cal.App.5th 932, 940.) As long as the “operative facts” (i.e., charging

allegations) are the same in both pleadings, a change in legal theory or cause of action is

permissible. (Ibid.)

Here, the court concludes that the operative facts in plaintiffs’ FAC relate back to the

original complaint. The allegations of the FAC are sufficiently similar to those in the

original complaint, which allege defendants’ construction, as well as defendants’

statements in its application materials, caused harm to plaintiffs.

Turning to the TRPA argument, the Tahoe Regional Planning Compact (“TRPC”) provides, in relevant part, “[a] legal action arising out of the adoption or amendment of

the regional plan or of any ordinance or regulation of the agency, or out of the granting

or denial of any permit, shall be commenced within 60 days after final action by the

agency. All other legal actions shall be commenced within 65 days after discovery of the

cause of action.” (TRPC, Art. VI, subd. (j)(4).) This subdivision applies to “(A) Actions

arising out of activities directly undertaken by the agency. [¶] (B) Actions arising out of

the issuance to a person of a lease, permit, license or other entitlement for use by the

agency. [¶] (C) Actions arising out of any other act or failure to act by any person or

public agency.” (TRPC, Art. VI, subd. (j)(1)(A)–(C).)

Defendants provide no legal authority showing that the TRPC deadlines are

applicable to any cause of action herein. While the TRPA allegedly granted a permit in

this case, plaintiffs’ claims do not arise out of the granting of said permit or any activity of the TRPA. The TRPA’s involvement in this case is a collateral matter. Therefore, the

court finds that the 60-day deadline provided in the TRPC does not apply to the instant

action.

In sum, the court rejects defendants’ challenges to the FAC based on the statute of

limitations.

/// ///

LAW AND MOTION CALENDAR JUNE 12, 2026

3.1. First C/A for Private Nuisance

As pertinent here, nuisance is statutorily defined as “[a]nything 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....” (Civ.

Code, § 3479.)

To state a claim for private nuisance, the plaintiff must allege: (1) an “interference

with the plaintiff’s use and enjoyment of that property”; (2) “that the invasion of the

plaintiff’s interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer ‘substantial actual damage’ [Citations]”; and (3) that the

interference with the protected interest was unreasonable. (San Diego Gas & Electric

Co. v. Superior Court (1996) 13 Cal.4th 893, 937–939.)

The FAC alleges two separate theories of nuisance: (1) defendant’s elevated deck

and windows, which are placed impermissibly close to plaintiffs’ property in violation of

the setback rules, invade plaintiffs’ privacy because it creates a direct and unobstructed

line-of-sight into plaintiffs’ bedroom, bathroom, and shower; and (2) defendants’ flat

roof, increased impervious surface, and land coverage violations concentrate and

discharge runoff towards plaintiffs’ property, causing recurring flooding.

The court finds that plaintiffs have pleaded a nuisance by the alleged flooding of

their property. (See Paterno v. State of Cal. (1999) 74 Cal.App.4th 68, 103.) Nuisance

claims based even on a single instance of flooding are not unknown. (E.g., Ambrosini v. Alisal Sanitary Dist. (1957) 154 Cal.App.2d 720, 727.)

Therefore, the court overrules the demurrer without needing to reach defendants’

challenge to the direct line-of-sight allegations. (Fire Ins. Exchange v. Superior Court

(2004) 116 Cal.App.4th 446, 452 [“Ordinarily, a general demurrer does not lie as to a

portion of a cause of action and if any part of a cause of action is properly pleaded, the

demurrer will be overruled.”].) ///

LAW AND MOTION CALENDAR JUNE 12, 2026

3.2. Second C/A for Negligence

Similar to the original complaint, the FAC alleges defendants breached their duty of

care by constructing a residence that exceeds the applicable TRPA maximum height of

24 feet, constructing a fully flat roof configured as a rooftop deck covering substantially

more than 25 percent of the roof area, and building within required setback distances.

(Comp., Compl. at 5:11–15, FAC at 7:10–16.) The FAC, however, adds an allegation that

defendants breached their duty of care by increasing impervious surface coverage in a

manner that harmfully altered natural drainage patterns. (FAC at 7:13–14.) The court finds that plaintiffs’ FAC sufficiently alleges a cause of action against

defendants for negligence based on the alleged flooding. (See, Keys v. Romley (1966) 64

Cal.2d 396 (holding that upper property owners could be liable for negligence if they

failed to exercise reasonable care in the use of their property so as to avoid injury to the

adjacent property through the flow of surface of waters).)

Therefore, the demurrer is overruled.

3.3. Third C/A for Fraud

“ ‘The elements of fraud ... 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 (1996) 12 Cal.4th 631, 638, quoting 5 Witkin, Summary of Cal. Law

(9th ed. 1988), § 676, p. 778.) The FAC alleges defendants submitted plans to the City of South Lake Tahoe (the

“City”) representing that the applicable maximum building height for their property was

25 feet, when really, the maximum allowable height was 24 feet. (FAC at 8:18–22.)

Defendants allegedly knew and intended that adjacent property owners, including

plaintiffs, would rely upon “the accuracy and lawfulness of the approved plans in

determining whether to object, appeal, or seek injunctive relief.” (FAC at 9:5–7.) “Had Plaintiffs known that the height calculation reflected in Defendants’ submitted materials

LAW AND MOTION CALENDAR JUNE 12, 2026

was inaccurate and that the project did not comply with TRPA’s applicable 24-foot

limitation under the site conditions shown in the plans, Plaintiffs would have timely

pursued administrative and judicial remedies to prevent construction.” (FAC at 9:19–

22.)

Plaintiffs have still failed to state a claim for fraud because, even accepting the

allegations as true, as the court must do in determining a demurrer, there is no intent to

induce reliance or resulting damage. Plaintiffs allege defendants intended to induce

plaintiffs to rely on their submitted plans in order for plaintiffs to decide whether to object, appeal, or seek injunctive relief. This claim fails as a matter of law. Plaintiffs

would have had to decide whether to object, appeal, or seek injunctive relief no matter

what defendants included in their application to the City.

Additionally, the alleged harm (i.e., privacy intrusions, damage impacts, etc.) was not

proximately caused by the alleged misrepresentation; it was caused by the actual

construction of defendant’s residence.

The demurrer is sustained without leave to amend, as plaintiffs have had a previous

opportunity to cure the defect through amendment.

3.4. Fourth C/A for Negligent Misrepresentation

The elements of negligent misrepresentation are: (1) the defendant made a false

representation as to a past or existing material fact; (2) the defendant made the

representation without reasonable ground for believing it to be true; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff

justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.

(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792.)

Similar to the third cause of action for fraud, the FAC alleges plaintiffs negligently

misrepresented to the City that the applicable maximum building height for their

property was 25 feet, when really, it was 24 feet. (FAC at 10:5–9.)

LAW AND MOTION CALENDAR JUNE 12, 2026

However, this cause of action fails for the same reason as the claim of fraud. There is

no intent to deceive plaintiffs and no harm proximately caused by the alleged

misrepresentation. The court sustains the demurrer without further leave to amend.

3.5. Fifth C/A for Breach of Governing Documents

The FAC alleges plaintiffs and defendants are both members of the TKPOA subject to

the CC&Rs and Architectural Control Rules; and that defendants breached Section 6.02

of the Architectural Control Rules in effect at the time defendants submitted their

construction plans for approval. (FAC at 11:15–22.) Section 6.02 provides, “[n]o more than twenty-five percent (25%) of the roof area may be used as a deck. No flat roofs or

roof pitch less than 2/12 is permitted.” (FAC at 11:25–28.)

Defendants argue that plaintiffs’ breach of governing documents claim is not

actionable against defendants under Civil Code section 5975 where it is based on an

alleged breach of the Architectural Control Rules, not the CC&Rs.

Civil Code section 5975, subdivision (a) expressly authorizes an owner of separate

interest in a common interest development to enforce the CC&Rs against another

owner as equitable servitudes, unless unreasonable. (Civ. Code, § 5975, subd. (b).) Civil

Code section 5975, subdivision (b) provides: “A governing document other than the

declaration [of CC&Rs] may be enforced by the association against an owner of a

separate interest or by an owner of a separate interest against the association.” (Civ.

Code, § 5975, subd. (b).) Plaintiffs counter that “the obligations the Plaintiffs seek to enforce are rooted in

the recorded Declaration itself. Article VII of the recorded Declaration requires every

owner to obtain architectural approval before building and to conform to the

Declaration’s minimum construction standards. Section 10 of Article VII independently

requires compliance with applicable setback lines and sets the height regime, with

height determined ‘in accordance with the Architectural Control Committee Rules.’ (RJN, Exh. 1, Art. VII, §§ 1, 3, 10.) The Architectural Control Rules, including Section 6.02,

LAW AND MOTION CALENDAR JUNE 12, 2026

are adopted under, and are expressly subordinate to, the Declaration.” (Opp. at 14:24–

15:7.)

Despite plaintiffs’ argument, the FAC plainly does not allege a breach of the CC&Rs.

It alleges a breach of Section 6.02 of the Architectural Control Rules, which is a

governing document other than the CC&Rs. Pursuant to Civil Code section 5975,

subdivision (b), breach of the Architectural Control Rules is not actionable against

defendants. The court sustains the demurrer with further leave to amend.

(B) McIntyre Defendants’ Motion to Strike

On April 2, 2026, defendants Robert McIntyre and Bettina McIntyre (collectively,

“defendants”) filed a motion to strike the claim for punitive damages in plaintiffs’ first

amended complaint. Defense counsel declares he met and conferred with plaintiffs’

counsel via telephone conference prior to filing the motion in compliance with Code of

Civil Procedure section 435.5, subdivision (a). (Hallissy Decl., ¶¶ 3–4.)

On June 1, 2026, plaintiffs filed a timely opposition. On June 5, 2026, defendants

filed a timely reply.

The only cause of action in the FAC that claims punitive damages under Civil Code

section 3294 is the third cause of action for fraud. Having sustained defendants’

demurrer to the third cause of action without leave to amend, the court denies the

motion to strike as moot.

(C) Tahoe Keys Property Owners’ Association’s Demurrer On March 25, 2026, defendant Tahoe Keys Property Owners’ Association

(“defendant”) filed an amended notice of demurrer to the first, second, fifth, and sixth

causes of action in plaintiffs’ first amended complaint (“FAC”). Defense counsel declares

he met and conferred with plaintiffs’ counsel via written letter and telephone

conference, in compliance with Code of Civil Procedure section 430.41, subdivision (a). (Hansen Decl., filed Mar. 24, 2026, ¶¶ 6, 7 & Ex. A.)

LAW AND MOTION CALENDAR JUNE 12, 2026

On June 1, 2026, plaintiffs filed a timely opposition and request for judicial notice.

On June 5, 2026, defendant filed a timely reply.

1. Request for Judicial Notice

Pursuant to Evidence Code section 452, subdivisions (b) and (c), the court grants

plaintiffs’ unopposed request for judicial notice of Exhibit 1 (recorded CC&Rs) and

Exhibit 2 (Chapter 37 of the TRPA Code of Ordinances).

2. Discussion

2.1. First C/A for Private Nuisance The FAC alleges defendant caused a nuisance to plaintiffs by approving the design of

the McIntyre’s home.

Defendant argues the FAC merely pleads potential future activity (e.g., potential use

of the roof-top for loud parties), whereas Civil Code section 3479 establishes what

constitutes nuisance in the present tense.

Although not specifically argued in defendant’s demurrer, the court finds that

plaintiffs fail to state a claim of nuisance against defendant where the FAC merely

alleges defendant approved the design of the McIntyre’s home. Nuisance is the

interference “with the comfortable enjoyment of life and property.” (Civ. Code, § 3479.)

The court finds, as a matter of law, that approval of the McIntyre’s construction design,

alone, does not constitute nuisance because there is no alleged unreasonable

interference with plaintiffs’ use and enjoyment of their property. (See, Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 876–877.)

The court sustains the demurrer to the first cause of action for nuisance. Because

there is no reasonable likelihood that plaintiffs can amend the complaint to allege a

cause of action against defendant for nuisance, the court denies leave to amend.

2.2. Second C/A for Negligence

“Actionable negligence involves a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (United

LAW AND MOTION CALENDAR JUNE 12, 2026

States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594.) “It is axiomatic

that liability for negligence in any scenario must be premised on a duty of care, and

‘[t]he existence and scope of a defendant’s duty is an issue of law to be decided by the

court.’ [Citation.]” (Lynch v. Peter & Associates etc. (2024) 104 Cal.App.5th 1181, 1189.)

The FAC alleges defendant negligently approved and permitted a structure that

violated defendant’s own governing documents and applicable standards. (FAC at 7:17–

27.)

Defendant claims plaintiffs “do not identify what specific duty the Association owed to them with respect to window view and drainage.” (Dem. at 4:23–24.) Additionally,

defendant claims the cause of action is barred under the Tahoe Regional Planning

Compact’s (“TRPC”) 60-day deadline. (Dem. at 5:9–21.) For the same reasons discussed

under the McIntyre’s Demurrer, above, the TRPC deadline does not apply to any cause

of action herein.

In their opposition, plaintiffs cite Frances T. v. Village Green Owners Assn. (1986) 42

Cal.3d 490, 499 for the proposition that homeowner’s associations are subject to

ordinary tort duties of care. (Opp. at 7:17–21.) In Frances T., the court found that the

defendant homeowner’s association was, for all practical purposes, the landlord of a

condominium association, and therefore, the defendant owed “a duty to exercise due

care for the residents’ safety in those [common] areas under their control. [Citations.]”

(Ibid.) However, Frances T. does not address the issue of whether a homeowner’s association owes a member a duty of care with respect to approving and permitting a

structure to be built by another member. Plaintiffs provide no legal authority showing

that defendant owed such a duty of care.

Even if defendant owed plaintiffs a duty of care (the court is not convinced that

defendant owed plaintiffs a duty of care, for purposes of negligence liability, in this

case), the alleged breach (i.e., approving construction plans that did not meet the

LAW AND MOTION CALENDAR JUNE 12, 2026

requirements under defendant’s governing documents) is not a proximate cause of

plaintiff’s alleged damage.

The court finds that plaintiffs have failed to state a claim of negligence against

defendant. The demurrer to this cause of action is sustained. Because it does not appear

reasonably likely that amendment will cure the defect, the court denies leave to amend.

2.3. Fifth C/A for Breach of Governing Documents

The FAC alleges defendant breached its obligations under the governing documents

when it approved the McIntyre’s construction plans that did not comply with Section 6.02 of the Architectural Control Rules. (FAC at 12:19–22.) Section 6.02 in effect at the

time the McIntyre’s submitted and obtained approved of their construction plans

provided: “No more than twenty-five percent (25%) of the roof area may be used as a

deck. No flat roofs or roof pitch less than 2/12/permitted.”

Defendant argues the cause of action is defective because: (1) defendant has since

amended Section 6.02 to apply retroactively and the McIntyre’s roof is no longer in

breach of the Architectural Control Rules; and (2) defendant is protected by the business

judgment rule (or the “judicial deference rule”).2

The FAC alleges that, on August 28, 2024, defendant amended Section 6.02 to

remove the flat-roof prohibition while retaining the 25 percent deck limitation. (FAC at

14:1–3.) Even assuming, arguendo, that the amendment of Section 6.02 applies

2 In Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249,

our Supreme Court adopted the “judicial deference rule,” which is an adaptation of the business judgment rule applicable to directors of corporations. The judicial deference rule provides, “where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development’s common areas, courts should defer to the board’s authority and presumed expertise.” (Id., at p. 265.)

LAW AND MOTION CALENDAR JUNE 12, 2026

retroactively, the FAC still alleges that defendant approved the McIntyre’s construction

plan, which included over 25 percent of the roof area to be used as a deck.

As for the judicial deference rule, plaintiffs argue that (1) it does not extend to

decisions by an association that are outside the scope of its authority under its

governing documents; and (2) it is an affirmative defense of which defendant carries the

burden of proving its required elements, and defendant cannot carry such burden on

the face of the FAC.

The court agrees with plaintiffs that the judicial deference rule does not apply here, where the FAC alleges that defendant’s decision was objectively outside the scope of its

authority. That is because Section 6.02 provides an express, measurable rule prohibiting

flat roofs and a 25 percent deck cap.

But, the court disagrees with plaintiffs that the judicial deference rule is an

affirmative defense; rather, it creates a presumption: “ ‘ “[T]he presumption created by

the business judgment rule can be rebutted only by affirmative allegations of facts

which, if proven, would establish fraud, bad faith, overreaching or an unreasonable

failure to investigate material facts.” ’ ” (Lauckhart v. El Macero Homeowners Assn.

(2023) 92 Cal.App.5th 889, 906; Eldridge v. Tymshare, Inc. (1986) 186 Cal.App.3d 767,

776.)

The demurrer is overruled.

2.4. Sixth C/A for Breach of Fiduciary Duty “The elements of a claim for breach of fiduciary duty are (1) the existence of a

fiduciary relationship, (2) its breach, and (3) damage proximately caused by that

breach.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1405.)

The FAC alleges defendant breached its fiduciary duties by selectively not enforcing

Section 6.02 (and other applicable height and setback limitations incorporated into and

enforceable through the Architectural Control process) against the McIntyres and instead providing the McIntyres preferential treatment. (FAC at 14:11–17.)

LAW AND MOTION CALENDAR JUNE 12, 2026

Defendant argues it is entitled to the presumption of judicial deference under

Lamden, supra, 21 Cal.4th 249. However, as previously discussed, the court finds that

the judicial deference rule does not protect defendant here where the decision (at least

with respect to Section 6.02) was objectively outside defendant’s scope of authority.

The demurrer to this cause of action is overruled.

(D) Tahoe Keys Property Owners’ Association’s Motion to Strike On March 25, 2026, pursuant to Code of Civil Procedure section 436, defendant

Tahoe Keys Property Owners’ Association (“defendant”) filed an amended motion to strike the allegations related to diminution-in-value damages in plaintiffs’ first amended

complaint (“FAC”). (FAC at 4:25, 6:22, 8:11, 11:9–10, 13:4–5, 14:20.) Defense counsel

declares he met and conferred with plaintiffs’ counsel via written letter and telephone

conference prior to filing the motion in compliance with Code of Civil Procedure section

435.5, subdivision (a). (Hansen Decl., ¶¶ 6–7 & Ex. A.)

On June 1, 2026, plaintiffs filed a timely opposition. Defendant filed no reply.

1. Legal Principles

A motion to strike is generally used to address defects appearing on the face of a

pleading that are not subject to demurrer. (Pierson v. Sharp Memorial Hospital (1989)

216 Cal.App.3d 340, 342.) “The court may, upon a motion [to strike] ..., or at any time in

its discretion ... [¶] ... [s]trike out any irrelevant, false, or improper matter inserted in

any pleading.” (Code Civ. Proc., § 436, subd. (a).) Like a demurrer, the grounds for a

motion to strike must appear on the face of the pleading or from any matter which the

court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).) On a motion

to strike the trial court must read the complaint as a whole, considering all parts in their

context, and must assume the truth of all well-pleaded allegations. (Courtesy

Ambulance, supra, 8 Cal.App.4th at p. 1519.) ///

LAW AND MOTION CALENDAR JUNE 12, 2026

2.

Discussion

Having sustained defendant’s demurrer to the first and second causes of action

without leave to amend, the only causes of action in plaintiffs’ FAC remaining against

defendant are the fifth and sixth causes of action for breach of governing documents

and breach of fiduciary duty, respectively.

Citing to Kaye v. Mount La Jolla Homeowners Assn. (2015) 204 Cal.App.3d 1476,

1486–1487, defendant argues that in governing document enforcement disputes, the

proper measure of damages is the cost to cure, not diminution in market value. However, as plaintiffs point out, the Kaye opinion addressed an association’s duty to

repair the common areas of a condominium project and held that, in such cases, an

individual homeowner is limited to the cost of repair and cannot also compel the

association to reimburse for diminution in value of the homeowner’s unit. (Id., at pp.

1487–1488.)

Civil Code section 5975 does not enumerate specific damage remedies (beyond

attorney fees and costs) for a breach of governing documents claim.

In the case of breach of fiduciary duty, the plaintiff is entitled to damages for all

harm proximately caused by the defendant’s breach of fiduciary duty. (Michelson v.

Hamada (1994) 29 Cal.App.4th 1566, 1582; see Civ. Code, § 3333.)

Because defendant has not met its burden of showing that the claim for diminution-

in-value damages is improper, the motion to strike is denied.

TENTATIVE RULING # 3:

(A) MCINTYRE DEFENDANTS’ DEMURRER: AS TO THE FIRST AND SECOND CAUSES OF ACTION, THE DEMURRER IS OVERRULED. AS TO THE THIRD AND FOURTH CAUSES

OF ACTION, THE DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND. AS TO

THE FIFTH CAUSE OF ACTION, THE DEMURRER IS SUSTAINED WITH FURTHER LEAVE TO AMEND.

LAW AND MOTION CALENDAR JUNE 12, 2026

(B) MCINTYRE DEFENDANTS’ MOTION TO STRIKE: THE MOTION TO STRIKE IS DENIED

AS MOOT.

(C) TAHOE KEYS PROPERTY OWNERS’ ASSOCIATION’S DEMURRER: AS TO THE FIRST AND SECOND CAUSES OF ACTION, THE DEMURRER IS SUSTAINED WITHOUT LEAVE

TO AMEND. AS TO THE FIFTH AND SIXTH CAUSES OF ACTION, THE DEMURRER IS

OVERRULED.

(D) TAHOE KEYS PROPERTY OWNERS’ ASSOCIATION’S MOTION TO STRIKE: THE

MOTION TO STRIKE IS DENIED.

NO HEARING ON THIS MATTER WILL BE HELD (LEWIS v. SUPERIOR COURT (1999) 19

CAL.4TH 1232, 1247), UNLESS A NOTICE OF INTENT TO APPEAR AND REQUEST FOR ORAL

ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY

TELEPHONE TO THE COURT AT (530) 573-3042 BY 4:00 P.M. ON THE DAY THE TENATIVE

RULING IS ISSUED. NOTICE TO ALL PARTIES OF AN INTENT TO APPEAR MUST BE MADE

BY TELEPHONE OR IN PERSON. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED

PRIOR TO OR AT THE HEARING.