Mustapha Baha v. 11847 Gorham Homeowners Association, et al.

(Beverly Hills Courthouse: Dept. 207) August 26, 2026 DEPARTMENT 207 LAW AND MOTION RULINGS

DEPARTMENT | 207 | HEARING DATE | August 26, 2026 | CASE NUMBER |

| MOTION | Demurrer to First Amended Complaint | MOVING PARTY | Defendant ELB Capital Corp. dba Trifecta Painting and Construction | OPPOSING PARTY | Plaintiff Mustapha Baha, individually and as assignee of any claims by Miriam Djamita Baha | MOTION This case arises from a dispute between condominium homeowner and homeowner's association concerning scaffolding the homeowner's association maintained for an extended period of time, allowing third parties to gain access to and steal items from Plaintiff's third-story unit.

Plaintiff Mustapha Baha, individually and as assignee of any claims by Miriam Djamita Baha, his daughter, to whom he was renting the condominium unit at the time of the burglary ("Plaintiff") filed the original complaint on January 6, 2026, alleging three causes of action for (1) negligence; (2) breach of fiduciary duty; and (3) nuisance.

The operative First Amended Complaint ("FAC") filed on June 29, 2026 similarly alleges the same three causes of action against Defendants 11847 Gorham Homeowners Association ("HOA"); Seabreeze Management Company, Inc. ("Seabreeze"); and ELB Capital Corp. dba Trifecta Painting and Construction ("Trifecta"). The second cause of action for breach of fiduciary duty is alleged against HOA only.

Defendant Trifecta now demurs to the first and third causes of action alleged against it on the grounds that the FAC fails to state facts sufficient to constitute a cause of action and uncertainty, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively. Plaintiff opposes the demurrer and Trifecta replies.

ANALYSIS 1. DEMURRER "It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint." (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)

In testing the sufficiency of a cause of action, a court accepts "[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 ["in considering the merits of a demurrer, however, "the facts alleged in the pleading are deemed to be true, however improbable they may be"].)

Further, in ruling on a demurrer, a court must "liberally construe" the allegations of the complaint "with a view to substantial justice between the parties." (See Code Civ. Proc., Sec. 452.) "This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant." (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

In summary, "[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged." (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A. UNCERTAINTY "[D]emurrers for uncertainty are disfavored." (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

"A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., [a party] cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against [the party]." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2026) P. 7:85, p. 45, emphasis in original.)

As such, where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809 ["Generally, the failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty"].)

Although Trifecta raises the demurrer in part on the ground of uncertainty, Trifecta does not actually make any arguments about why the FAC is uncertain or demonstrate that any portions of the FAC are so faulty that Trifecta cannot determine what issues must be admitted or denied, or what claims are directed against it. Therefore, the Court declines to sustain Trifecta's demurrer to the FAC on the ground of uncertainty.

B. FAILURE TO STATE A CAUSE OF ACTION i. First Cause of Action - Negligence The elements for a negligence cause of action are duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

Plaintiff alleges: 8. Plaintiff as owner of the Unit and a member of the HOA has standing sue for the wrongs done both by the HOA and Seabreeze as set forth in the CCRs. The Unit is on the third floor of the condominium project and is accessible to owners, guests and invitees to the building after passing by and through the security desk in the lobby of the building. There is no readily accessible access to the Unit from the exterior of the building.

9. Plaintiff Baha has individually owned the Unit for many years and was, at the time of the incidents at issue, leased to his daughter. He is the assignee of the claims of his daughter, Miriam, for the loss of certain personal property because of the acts and omissions of Defendants.

10. Within the relevant statute of limitations, Plaintiff is informed and believes and on that basis asserts, that the HOA and/or Seabreeze contracted with Defendant Trifecta to effectuate certain repairs to the exterior of the condominium project. To effectuate those repairs, Trifecta erected exterior scaffolding along the perimeter of the south-west side of the project where the Unit was located. The scaffolding provided not only workers access to the exterior of the south-west side of the project, but also an entry way to the Units as well, allowing unwanted third parties to bypass the security desk in the lobby.

11. On or about May 17, 2024, Trifecta advised the homeowners that, weather permitting, they were about to undertake "the exterior waterproofing, repair and sealing community project." Trifecta also advised that "there are additional units pending inspection and in turn will extend the scope and timeline." Further, Trifecta confirmed that "scaffolding has been erected outside of units 207, 307 and 405. Repair work is underway at the exterior of units 307 and 405."

12. Of note, Trifecta warned the homeowners that "during all phases of work there will be an inconvenience to homeowners and residents within the vicinity of our repairs, such as demolition, noise, noise from heavy machinery and power tools, dust, and general construction." Trifecta failed to warn, however, that although scaffolding, ladders and other construction equipment would be in place for more than five (5) months, open to intruders, that there would be no security in place or that the scaffolding and other construction equipment could provide a platform for intruders.

13. The scaffolding was left in place for long periods of time and was left unattended without any security measures being implemented by Defendants to ensure that the Units on the southwest side of the project were protected from improper access by way of the scaffolding by third parties. Given these circumstances, Defendants had a duty to take reasonable care to avoid causing injury. (Civ. Code., Sec. 1714.) By erecting the scaffolding without security measures, by leaving the scaffolding in place for months, Defendants engaged in activities that created and/or increased the risk of harm to Plaintiff. By acting and failing to act as they did, it was Defendants' own conduct that created a risk of harm to Plaintiff.

14. Due to the lack of security measures and the access created by the erection of the scaffolding, third parties climbed onto and up the scaffolding to improperly access the Unit. Such conduct was easily foreseeable. These unknown persons broke into the Unit, stole personal property of Plaintiff and his daughter and damage was caused to the Unit as well. Had proper security measures been put in place, or any security measures at all, third parties would not have had access to the upper floors of the condominium complex and the Units on the south-west side, avoiding the security desk in the lobby.

15. Due to neglect of Defendants and the failure of the HOA to comply with the CC&Rs, Plaintiff suffered significant harm in an amount to be proven at trial but is asserted to be in excess of $100,000.

16. Since the loss of and damage to real and personal property, Defendants have refused to act and have taken no steps to attempt to remedy the personal property losses to Plaintiff or to repair the damage to the Unit.

17. Baha has repeatedly complained to the HOA, Seabreeze and representatives of Trifecta to no avail.

18. Baha has been damaged by the acts and omissions of Seabreeze, the HOA and Trifecta. [...]

20. Defendants, and each of them, owed to Baha and to the assignor a general duty of care, as well as a specific duty of care arising out of the relationship between condominium owners that are part of the homeowners association for the Property.

21. Defendants, and each of them, breached their duty of care by failing to ensure the safety and security of the project, the Units and the occupants by installing scaffolding to the exterior of the south-west side of the building which permitted improper access to the Unit without any security measures.

22. Defendants, and each of them, were under a duty to exercise ordinary and reasonable care and skill to avoid reasonably foreseeable damage to and theft from the Unit and that they knew, or should have known, with reasonable certainty, that third parties would have access to the south-west side of the building without any security measures in places and that due to same, the Unit and its owners and tenants would be substantially damaged as Defendants, and each of them, failed to exercise the necessary care and skill in the performance of their duties. (FAC P.P. 8-22.)

Trifecta demurs to the first cause of action on the ground that it owed Plaintiff no duty of care as a matter of law. "Duty is a question of law for the court" to decide. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.)

"Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances." (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (hereafter Brown).)

In general, "[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself." (Civ. Code, Sec. 1714.) Section 1714 "establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others." (Brown, supra, 11 Cal.5th at p. 214.)

"Duty is not universal; not every defendant owes every plaintiff a duty of care. A duty exists only if the plaintiff's interests are entitled to legal protection against the defendant's conduct. Whether a duty exists is a question of law to be resolved by the court." (Brown, supra, 11 Cal.5th at p. 213 [cleaned up].)

"[W]hether to recognize a duty to protect is governed by a two-step inquiry. First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect. Second, if so, the court must consult the factors described in Rowland [1] to determine whether relevant policy considerations counsel limiting that duty." (Id. at p. 209.)

"Section 1714 states a broad rule, but it has limits. We have explained that the law imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff's position worse. The law does not impose the same duty on a defendant who did not contribute to the risk that the plaintiff would suffer the harm alleged. Generally, the person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another from that peril." (Brown, supra, 11 Cal.5th at p. 214 [cleaned up].)

Further, " as a general matter, there is no duty to act to protect others from the conduct of third parties." (Brown, supra, 11 Cal.5th at p. 214, emphasis added.) But "[t]he no-duty-to-protect rule is not absolute . . . ." (Id. at p. 215.)

"In a case involving harm caused by a third party, a person may have an affirmative duty to protect the victim of another's harm if that person is in what the law calls a "special relationship" with either the victim or the person who created the harm." (Ibid., emphasis added.) A special relationship between the defendant and the victim is one that "gives the victim a right to expect" protection from the defendant." (Brown, supra, 11 Cal.5th at p. 216.)

"Relationships between parents and children, colleges and students, employers and employees, common carriers and passengers, and innkeepers and guests, are all examples of special relationships that give rise to an affirmative duty to protect. The existence of such a special relationship puts the defendant in a unique position to protect the plaintiff from injury. The law requires the defendant to use this position accordingly." (Ibid. [cleaned up].)

Moreover, there is a special, fiduciary relationship as between a homeowner's association and its members (see Kovich v. Paseo Del Mar Homeowners' Assn. (1996) 41 Cal.App.4th 863, 867) as well as between landlord and tenant (see Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213). On the other hand, "[a] special relationship between the defendant and the dangerous third party is one that entails an ability to control the third party's conduct." (Brown, supra, 11 Cal.5th at p. 216 [cleaned up].)

In this regard, the Court's inquiry will focus on whether there is a special relationship between Trifecta and the person(s) who allegedly created the harm from which a duty arises. In part, the inquiry turns on whether Trifecta has "[p]erformed an act that increases the risk of injury to the plaintiff . . . ." (Ibid.)

Trifecta argues that it owed Plaintiff no duty of care to protect Plaintiff against the criminal acts of third parties under Brown because there is no special relationship as between painter/contractor and homeowner (or homeowner's daughter as lessee), nor is there privity of contract giving rise to a contractual duty, nor does public policy warrant expanding a duty under Biakanja v. Irving (1958) 49 Cal.2d 647. Further, Trifecta argues that even if the Court were to find a special relationship here, Rowland 's public policy considerations militate against finding a duty here.

In opposition, Plaintiff argues that Brown requires the Court to first "determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect." (Brown, supra, 11 Cal.5th at p. 209, emphasis added.) Seizing upon that "or some other set of circumstances giving rise to an affirmative duty to protect" language, Plaintiff argues that Trifecta owed a general duty of care not to create an unreasonable risk of harm to homeowners like Plaintiff and tenants like Plaintiff's daughter.

The Court agrees that Trifecta owes a general duty of care not to endanger Plaintiff by, for example, leaving dangerous debris on the premises, causing Plaintiff to trip and fall, or by doing such a poor job that the construction work itself harms tenants. The Court disagrees, however, that Trifecta owed an affirmative general duty of care not to create an unreasonable risk of harm of criminal conduct by third parties by virtue of the scaffolding it erected to complete its repair work to the exterior of the building.

As a painting/construction company, Trifecta does not owe a general duty of care to protect its customers or tenants in the buildings it repairs against such criminal acts of third parties. Thus, because Plaintiff has not demonstrated a general duty of care, a special relationship, or a contractual duty to protect tenants like Plaintiff's daughter from criminal break-ins by third parties, the Court need not analyze the Rowland factors to determine whether such duty should nonetheless be negated. Therefore, the Court sustains Trifecta's demurrer to the first cause of action.

ii. Third Cause of Action - Nuisance A "nuisance" is "[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance." (Civ. Code, Sec. 3479.)

A nuisance may be public, private, or both. (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.) "Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land." (Ibid.) "So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance." (Ibid.)

The elements of a private nuisance are (1) Plaintiff leased or occupied the property; (2) Defendants, by acting or failing to act, created a dangerous condition on the property; (3) Defendants' action or failure to act was intentional, negligent, or reckless; (4) the condition substantially interfered with Plaintiff's use or enjoyment of the property; (5) an ordinary person would be reasonably annoyed or disturbed by Defendants' conduct; (6) Plaintiff was harmed; (7) Defendants' conduct was a substantial factor in causing Plaintiff's harm; and (8) the seriousness of the harm outweighs the public benefit of Defendants' conduct. (CACI No. 2021.)

Here, in addition to the allegations above, Plaintiff alleges: 28. Plaintiff incorporates by reference each allegation of Paragraphs 1 through 27 of this Complaint, as though set forth in full herein.

29. The Unit is contiguous with portions of the common area of the Association. Within the common area of the Association, owners have the right to mutual quiet enjoyment and the right to enjoin any nuisance which infringes upon such enjoyment.

30. Defendants, and each of them, at all relevant times mentioned herein, created a nuisance by erecting without any security measures in place scaffolding on the south-west side of the project, thus allowing and inviting unknown third parties improper access to the Unit, it occupants and the personal property of the same, all of which constitutes a nuisance as defined in California Civil Code section 3479 and in the CC&Rs.

31. Pursuant to California law and the CC&Rs, the conduct of Defendants, and each of them, constituted a nuisance.

32. Baha is informed and thereon alleges that Defendants, had been notified on multiple occasions of conditions constituting nuisance, but despite such notification refused to ameliorate or abate the nuisance.

33. As a proximate result of the nuisance created by Defendants, Plaintiff has suffered damages in an amount believed to exceed $100,000, plus attorney's fees pursuant to Civil Code section 5975 and costs. (FAC P.P. 28-33.)

While Plaintiff alleges its assignor leased/occupied the property and it can be inferred from the allegations that Plaintiff alleges Trifecta created a dangerous condition on the property by virtue of erecting the scaffolding, Plaintiff does not allege the scaffolding substantially interfered with Plaintiff's (and/or Plaintiff's daughter, as assignor) use or enjoyment of the property, that an ordinary person would be reasonably annoyed or disturbed by the scaffolding, or that the seriousness of the harm outweighs the public benefit of Trifecta's conduct.

In opposition, Plaintiff argues that the FAC adequately alleges a substantial interference with the use and enjoyment of their property by virtue of the allegations that the scaffolding allowed/invited unknown third parties to break in and steal personal property from the unit and cause damage to the unit. But this conflates the one-time break-in with the persistence of the scaffolding itself. Plaintiff has not adequately alleged that the scaffolding itself interferes with Plaintiff's daily use and enjoyment of the property. Therefore, the Court sustains Trifecta's demurrer to the third cause of action.

2. LEAVE TO AMEND A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.)

A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that "if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend." (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has failed to satisfy this burden as Plaintiff does not specify any facts that could be added to address the deficiencies identified above.

CONCLUSION AND ORDER For the reasons stated, the Court sustains Trifecta's demurrer to the FAC without leave to amend. Trifecta shall provide notice of the Court's ruling and file the notice with a proof of service forthwith.

DATED: August 26, 2026 _____/s/______________________ Michael E. Whitaker Judge of the Superior Court

[1] Rowland v. Christian (1968) 69 Cal.2d 108. The Rowland v. Christian factors include: the foreseeability of harm to the plaintiff, the burden to the defendant and the consequences to the community of imposing the duty. The court's task in determining whether a duty exists is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party. Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court. (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446 [cleaned up].) | Home -->)" -->