Melinda Bingham, et al. v. The Joyce L. Hutchinson Trust, et al

The fourth COA for breach of fiduciary duty is asserted by Bingham in her capacity as trustee for CB trust against the Association. The fifth COA for IIED is asserted by Bingham in her individual capacity against all Defendants. The sixth COA for NIED is asserted by Bingham in her individual capacity against all Defendants.

As alleged in the operative FAC: Bingham resides in a condominium at 63 Seaview Drive, Montecito (Residence). (FAC, P. 2.) The Residence is owned by CB Trust (CB Trust). (FAC, P. 12.) Bingham is the sole trustee of CB Trust. (FAC, P. 11.) The Residence is located directly below another condominium at 69 Seaview Drive (Neighboring Property). (FAC, P. 2.) The Neighboring Property is owned by Defendant Hutchinson Trust. (FAC, P. 1.) Pamela A. Lankowski (Lankowski) is the trustee of Hutchinson Trust. (FAC, P. 14.) Until January 12, 2026, the tenants residing in the Neighboring Property were a family of four, consisting of two young children and their parents (Prior Tenants). (FAC, P. 3.) The Prior Tenants are not parties to this action.

Defendant Association is a California nonprofit organization. (FAC, P. 16.) The owners of the 99 condominiums located in Montecito Shores, including Plaintiff CB Trust and Defendant Hutchinson Trust, are members of the Association. (Ibid.)

For an approximate two-year period in late 2023 or early 2024 and continuing until January 12, 2026, there were ongoing and disturbingly loud levels of noise emanating from the Neighboring Property and permeating through the insufficiently soundproofed flooring in the Neighboring Property (Alleged Noise). (FAC, P. 4.) The Alleged Noise was primarily coming from the activity and volume of two young boys--children of the Prior Tenants--running and playing throughout Neighboring Property during all hours of the day. (FAC, P.P. 2-4.) Bingham was also forced to listen to one of the Prior Tenants' children crying at various hours of the night and into the early morning when the child was brought into the bedroom of the Neighboring Property located directly above Bingham's bedroom. (FAC, P. 3.)

There was an illegally enclosed and non-permitted balcony (Balcony) of the Neighboring Property that is located directly above the living space of the Residence. (FAC, P.P. 2-4.) The Balcony was part of a remodel at the Neighboring Property in 2017 that failed to conform to the requirements of Section 5.4 of the Covenants, Conditions, and Restrictions (CCRs) of the Association. (Ibid.) This contributed to the Alleged Noise.

On March 29, 2024, Bingham first provided formal notice to the Association of the Alleged Noise and non-permitted condition of the Balcony. (FAC, P. 22.) On August 2, 2024, Bingham arranged for an appraisal of the Residence to be done for estate-related purposes after the passing of her husband. (FAC, P. 23.) While present in the Residence, the appraiser noted the Alleged Noise. (Ibid.) According to the appraiser, unless abated, the Alleged Noise would result in a $220,000 reduction in the value of the Residence (7 percent). (Ibid.)

October 6, 2024, Bingham emailed Lankowski, trustee of Hutchinson Trust, bringing to her attention the Alleged Noise and seeking permission to have an inspection done of the Neighboring Property flooring and Balcony. (FAC, P. 25.) On October 8, 2024, Bingham reached out to Ray Sims (Sims), president of the Association board, requesting that he intervene and have the flooring and Balcony inspected. On October 8, 2024, Bingham left one of the Prior Tenants a note on his front step, seeking access to the Neighboring Property for inspection. (FAC, P. 26.) The Prior Tenant replied with an email denying access and requesting that Bingham communicate with the property manager only. (Ibid.) In response to the Prior Tenant's denial of access, Bingham asked him to at least not have the little boy running and yelling in the house. (Ibid.) Bingham received no response to her request. (Ibid.)

On October 16, 2024, Bingham reached out to Sims, requesting documentation related to the permitting of the Balcony. (FAC, P. 28.) On October 24, 25, and 26, 2024, Bingham corresponded with Association board members Bessie Kouvara and Joel Mendelson regarding the Alleged Noise and shared with them a sound recording. (FAC, P. 29.) Both agreed that the Alleged Noise was irritating and unacceptable. (Ibid.) On October 30, 2024, in advance of a meeting of the Association board that was set to take place that same date, Bingham, who was then one of the five members of the board, sent an email to the other four members proposing a detailed course of action to remedy the Alleged Noise. (FAC, P. 30.)

On November 7, 2024, hearing nothing further from Sims regarding the inspection, Bingham contacted counsel for the Association and asked for a written statement to address the Alleged Noise. (FAC, P. 31.) On December 9, 2024, Bingham received an email from counsel for the Association detailing what the Association had obtained thus far in terms of documentation related to the Alleged Noise and inquiring whether Bingham wanted the Association to file a complaint with the County. (FAC, P. 32.) Bingham did not see this email until December 23, 2024. (Ibid.)

On December 23, 2024, Bingham and counsel for the Association corresponded by email. Association counsel informed Bingham that a complaint could be filed with the County and asked whether she wanted the Association to file a complaint. (FAC, P. 33.) On December 24, 2024, Bingham informed counsel for the Association that, due to an injury she sustained and the holiday season, she wished to wait until after the holidays to determine the best course of action. (FAC, P. 34.)

On January 16, 2025, with the holidays now behind her, Bingham reached out to counsel for the Association seeking to obtain documents and information that she could share with Lankowski in the hope of resolving the Alleged Noise without the need for a formal complaint with the County. (FAC, P. 35.) On February 5, 2025, Bingham requested Association counsel to coordinate an inspection of the Neighboring Property to determine if the Balcony is code-compliant, whether proper soundproofing is installed, and whether the carpet and padding is sufficiently dense. (FAC, P. 40.) With this information, Bingham planned to approach Lankowski in the hope of informally resolving the Alleged Noise. (Ibid.) Bingham received no response. (Ibid.)

On February 22, 2025, the annual meeting of the Association took place, marking the end of Bingham's term as a member of the Association board. Bingham chose not to seek reelection based on the advice of her doctor. (FAC, P. 42.) Two days later, on February 24, 2025, after Bingham was no longer on the Association board and unbeknownst to her at the time, someone filed a complaint with the County related to the non-permitted Balcony. (FAC, P. 43.)

Between February 24, 2025 and March 27, 2025, and also unbeknownst to Bingham, it appears that negotiations took place between Lankowski and the County. Lankowski requested and received an extension to the abatement schedule that may extend the deadline for Hutchinson Trust to rectify the non-permitted Balcony. (FAC, P. 44.)

On March 31, 2025, Bingham first learned of the complaint that had been filed with the County. (FAC, P. 45.) That same day, Bingham filed her own complaint with the County pertaining to the Alleged Noise and Balcony. (Ibid.) On April 2, 2025, an inspector for the County visited Bingham at the Residence and confirmed the lack of adequate soundproofing in the Neighboring Property based on the data the County had collected and the noise recordings he heard. (FAC, P. 46.)

On April 30, 2025, Bingham obtained a redacted copy of the complaint someone filed with the County with the identity of the person who filed the complaint blacked out. (FAC, P. 48.) There is no mention of the Alleged Noise in the complaint--only a one-line statement that the Balcony of was non-permitted. (Ibid.) After inquiring as to the possibility of contesting the abatement schedule, noise issues, and other aspects of the unknown person's complaint with the County, a representative of the County informed Bingham that the issue was out of the County's hands and that her recourse was to file a civil action. (FAC, P. 49.)

Analysis

(1) Standard on Demurrer

"Because the function of a demurrer is to test the sufficiency of a pleading as a matter of law, we ... assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.] It is error for the trial Court to sustain a demurrer if the Plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the Court to sustain a demurrer without leave to amend if the Plaintiff has shown there is a reasonable possibility a defect can be cured by amendment." (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247).

"The reviewing Court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded." (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043.)

"[I]n ruling on a demurrer the trial Court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice." (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1133-1134.)

(2) Association's Demurrer to First COA for Private Nuisance

The elements of private nuisance are: "First, the Plaintiff must prove an interference with its use and enjoyment of its property. Second, the invasion of the Plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the Plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land." (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176.)

"The invasion may be intentional and unreasonable. It may be unintentional but caused by negligent or reckless conduct; or it may result from an abnormally dangerous activity for which there is strict liability. On any of these bases the Defendant may be liable." (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100.)

"The only parties who can be liable for a nuisance are 'the party who maintains the nuisance' as well as 'the party or parties who create or assist in its creation.' " (Kaura v. Stabilis Fund II, LLC (2018) 24 Cal.App.5th 420, 434 (Kaura), internal quotation marks omitted.)

"[L]iability for nuisance does not hinge on whether the Defendant owns, possesses or controls the property [creating the nuisance], nor on whether he is in a position to abate the nuisance; the critical question is whether the Defendant created or assisted in the creation of the nuisance." (City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38 (City of Modesto).)

As alleged in the FAC, Bingham resides at the Residence owned by the CB Trust for which Bingham is the sole trustee. (FAC, P.P. 10-12, 16.) For an approximate two-year period, Bingham was deprived of the quiet use and enjoyment of the Residence due to the Alleged Noise. (FAC, P. 2.) The Alleged Noise caused Bingham constant fatigue, stress, anxiety, and emotional distress, and interrupted sleep. (FAC, P.P. 3-4.) As a result, Bingham also allegedly sustained economic and reputational harm. (FAC, P. 4.) The FAC also alleges that the Residence's value was reduced because of the Alleged Noise. (FAC, P.P. 3, 23.) The FAC has alleged an unreasonable interference with the use and enjoyment of a property interest.

As to whether the Association may be liable for causing this interference, " '[t]he conduct necessary to make the actor liable for ... a private nuisance may consist of (a) an act; or (b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the ... private interest.' [Citation.] ... A connecting element to the prohibited harm must be shown." (San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Bd. (2019) 36 Cal.App.5th 427, 436 (SDG&E).)

Here, the FAC does not allege that the Association directly created the Alleged Noise. Rather, the Alleged Noise was created by the Prior Tenants of the Neighboring Property. (FAC, P. 3.) The FAC alleges that the Association assisted in the creation of the Alleged Noise by failing to act to enforce the CCRs. (FAC, P.P. 57-74.) The FAC alleges that section 5.3(j) of the CCRs states that "no owner shall engage in any nuisance or do any act which unreasonably threatens the health, safety, and welfare of other residents of [the Association]" and section 12.2 states that "every act or omission that violates the Governing Documents, in whole or in part, is declared to be and constitutes a nuisance." (FAC, P.P. 60-61.) The FAC also briefly refers to Section 5.4 of the CCRs pertaining to unit modification, but does not provide any description of what this provision states. (FAC, P. 3.)

The Association argues it had no duty to Bingham, who is not a member of the Association in her individual capacity, to enforce the CCRs. The Association cites the line of cases indicating that "tenants ... have no legal standing to maintain a complaint that [an association] failed to adequately enforce its own governing documents." (Woolard v. Regent Real Estate Services, Inc. (2024) 107 Cal.App.5th 783, 791.) The Association argues that only members may enforce the CCRs. (See Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1036 ["the right of enforcement is inextricable from ownership of real property"]; see also Civ.

Code, Sec. 5975, subd. (a) ["[T]hese servitudes may be enforced by any owner of a separate interest or by the association, or by both."].) The Association further argues that the FAC did not cite any provision of the CCRs or governing documents stating that the Association was required to stop, limit, or prevent the Alleged Noise.

As to the existence of a duty from the Association, "[d]uty 'may be imposed by law, be assumed by the Defendant, or exist by virtue of a special relationship.' " (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) It appears that the Association is allowed to impose monetary penalties or initiate disciplinary provisions on owners for violations of the governing documents if the Association has adopted such a policy. (Civ. Code, Sec.Sec. 5850-5875.) There are also statutory provisions governing the resolution of disputes between the Association and its members. (Civ. Code, Sec.Sec. 5900-5920.)

The first COA for private nuisance is asserted by Bingham in her individual capacity and in her capacity as trustee of CB Trust. (FAC, p. 13, ll. 10-15.) The FAC alleges that CB Trust owns the Residence and is a member of the Association. (FAC, P.P. 10-12, 16.) The FAC alleges that the Residence, as an asset of the CB Trust, was reduced in value as a result of the Alleged Noise and the Association's failure to enforce the CCRs. (FAC, P.P. 57-63.) The FAC appears to allege a duty from the Association to Bingham in her capacity as trustee of the CB Trust based on the CCRs and statutory law for common interest developments.

As to the scope and nature of the Association's duty, "[g]enerally, fiduciary duties owed by a homeowners association to its members are limited to those arising from its governing documents and relevant statutory requirements." (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 425 (Golden Eagle).) Sections 5.3(j), 5.4, and 12.2 of the CCRs, as described on the face of the FAC, do not appear to create affirmative duties by the Association to stop, limit, or prevent the Alleged Noise.

Section 5.3(j) allegedly states that " no owner shall engage in any nuisance," but this provision does not appear to place any affirmative duty on the Association. (FAC, P. 60, italics added.) According to Civil Code section 5975, subdivision (a), "[t]he covenants and restrictions ... may be enforced by any owner ... or by the association, or by both." (Italics added.) This statute does not say the CCRs must be enforced by the Association, how or when they must be enforced against an owner, or discuss the CCRs in terms of mandates on the Association. "A governing document other than the declaration may be enforced ... by an owner of a separate interest against the association." (Id., subd. (b).)

Here, the FAC alleges the Association did take some action as to the Alleged Noise, including gathering documentation and offering to coordinate a potential complaint with the County to address these issues. (FAC, P.P. 32-37.) Missing from the FAC is any citation to the CCRs, governing documents, or statutory authority indicating that the Association had an affirmative duty to stop, limit, or prevent the Alleged Noise. The FAC also does not allege facts specifying what acts the Association was required to undertake that were not undertaken.

In order to state a nuisance claim based on the Association's failure to act, the FAC must allege facts showing the Association had an affirmative duty to take action to address the Alleged Noise that was not undertaken by the Association. (See SDG&E, supra, 36 Cal.App.5th at p. 436.) Without an alleged basis for the Association's duty to take affirmative steps to prevent the Alleged Noise or allegations of what those steps were, the FAC fails to allege facts indicating that the Association assisted in the creation of the nuisance. (See Kaura, supra, 24 Cal.App.5th at p. 434; City of Modesto, supra, 119 Cal.App.4th at p. 38.)

The FAC falls short on these issues.

For all these reasons, the Court will sustain the Association's demurrer to the first COA with leave to amend. If Bingham chooses to address these issues by amendment, Bingham may attach the pertinent CCRs or governing documents as an exhibit to the amended pleading, recite them in the amended pleading, or plead their legal effect rather than the precise language. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)

(3) Hutchinson Trust's Demurrer to the First COA for Private Nuisance

The FAC alleges that Hutchinson Trust owned the Neighboring Property directly above the Residence from which the Alleged Noise originated. (FAC, P.P. 14-16.) The FAC does not allege that the Hutchinson Trust directly created the Alleged Noise. Rather, the Alleged Noise was created by the Prior Tenants. (FAC, P. 3.) The FAC alleges that Bingham notified the trustee of Hutchinson Trust, Lankowski, of the Alleged Noise in October 2024, and that Lankowski responded with a one word communication stating, "received." (FAC, P. 25.)

"Generally, 'a landlord is not responsible to other parties for the misconduct or injurious acts of his tenant to whom his estate has been leased for a lawful and proper purpose when there is no nuisance ... at the time of the leasing.' [Citations.] ... 'To bring liability home to the owner of real property ... the nuisance must be one which is in its very essence and nature a nuisance at the time of the letting, and not something which is capable of being thereafter rendered a nuisance by the tenant.' [Citation.]

Limited exceptions to the general rule of nonliability may hold the landlord responsible where the landlord 'participated in the wrongful act by authorizing or permitting it to be done' [citation], or where the landlord failed to conduct a reasonable inspection of the premises before renewing a lease [citation]. These long-established limitations on imposition of liability on the lessor for a nuisance created by the lessee continue to be recognized in modern cases that require, at least, a showing of the landlord's knowledge of the hazard, and ability to prevent the harm." (Chee v.

Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1373-1374.)

The FAC alleges that Hutchinson Trust had knowledge of the Alleged Noise caused by its Prior Tenants by way of notice to its trustee. (FAC, P. 25.) The FAC alleges that there were flooring and soundproofing issues and a non-permitted Balcony over which the Hutchinson Trust had control. (FAC, P. 8.) These issues may have existed at the time the Neighboring Property was leased to the Prior Tenants. The FAC alleges that Hutchinson Trust was a member of the Association and had affirmative duties to prevent the Neighboring Property from being used in a manner that creates a nuisance. (FAC, P.P. 60-61.) The facts alleged in the FAC are sufficient to state that the Hutchinson Trust had notice of the Alleged Noise, an obligation to address it, and the ability to address it.

For all these reasons, the Court will overrule the Hutchinson Trust's demurrer to the first COA for private nuisance.

(4) Association's Demurrer to Second COA for Breach of Equitable Servitudes

" '[E]quitable servitudes permit Courts to enforce promises restricting land use when there is no privity of contract between the party seeking to enforce the promise and the party resisting enforcement. Like any promise given in exchange for consideration, an agreement to refrain from a particular use of land is subject to contract principles, under which Courts try 'to effectuate the legitimate desires of the covenanting parties.' " (Cebular v. Cooper Arms Homeowners Assn. (2006) 142 Cal.App.4th 106, 122.)

In the context of a common interest development, "[t]he covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall ... 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, Sec. 5975, subd. (a).) "[A] condominium owner may enforce the [CCRs] under the law of equitable servitudes without resorting to a breach of contract cause of action." (Franklin v. Marie Antoinette Condominium Owners Assn. (1993) 19 Cal.App.4th 824, 832.)

The FAC alleges that CB Trust is a member of the Association by and through its ownership of the Residence. (FAC, P. 16.) The FAC alleges that Bingham in her capacity as trustee of the CB Trust seeks to enforce the Association CCRs or governing documents. (Ibid.) However, for the same reasons as discussed above, the Court will sustain the Association's demurrer to the second COA with leave to amend on the basis that the FAC did not attach or summarize the enforcement provisions of the Association CCRs or governing documents that require the Association to stop, limit, or prevent the Alleged Noise. An amended pleading must, at a minimum, state what equitable servitudes it seeks to enforce against the Association and what the Association must do to comply with them.

(5) Hutchinson Trust's Demurrer to the Second COA for Breach of Equitable Servitudes

The FAC alleges that, "[p]ursuant to Section 5.3(j) of the [CCRs], no owner shall engage in any nuisance or do any act which unreasonably threatens the health, safety, and welfare of other residents." (FAC, P. 60.) "Pursuant to Section 12.2 of the [CCRs], every act or omission that violates the Governing Documents, in whole or in part, is declared to be and constitutes a nuisance." (FAC, P. 61.) The FAC alleges that Hutchinson Trust is the owner of the Neighboring Property, Hutchinson Trust had notice of the Alleged Noise, and Hutchinson Trust failed to abate the nuisance caused by its Prior Tenants. Bingham in her capacity as trustee for CB Trust has alleged a basis to enforce these provisions as equitable servitudes against Hutchinson Trust, another member of the Association.

The Court will overrule the Hutchinson Trust's demurer to the second COA.

(6) Association's Demurrer to Third COA for Breach of Good Faith and Fair Dealing

The CCRs and certain governing documents may be treated as contractual obligations between the owners in common interest developments and associations. (See Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 240.) "The implied covenant of good faith and fair dealing rests upon the existence of some specific contractual obligation. [Citation.] 'The covenant of good faith is read into contracts in order to protect the express covenants or promises of the contract, not to protect some general public policy interest not directly tied to the contract's purpose.' [Citations.] 'In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party's rights to the benefits of the contract.' " (Racine & Laramie, Ltd. v.

Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032.) "The covenant thus cannot 'be endowed with an existence independent of its contractual underpinnings.' [Citation.] It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement." (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349-350.)

Bingham may be able to assert a cause of action for breach of the covenant against the Association. However, as to the actions the Association was required to take to comply with the covenant, the FAC does not set forth the parties' contractual obligations with sufficient specificity to determine the terms of the parties' agreement, the scope of the Association's duties under the covenant, or whether there was a breach by the Association. For these reasons, the Court will sustain the Association's demurrer to the third COA with leave to amend.

(7) Hutchinson Trust's Demurrer to the Third COA for Breach of the Implied Covenant of Good Faith and Fair Dealing

Hutchinson Trust summarily argues that the implied covenant theory is duplicative of the equitable servitudes COA and that Hutchinson Trust is not in privity with CB Trust. The Court disagrees that Hutchinson Trust's demurrer should be sustained on this ground at the pleading stage. Courts have concluded, at least in some contexts, "the right of the neighbors to enforce a restrictive covenant limiting the use of neighboring property is clearly contractual." (Barrett v. Dawson (1998) 61 Cal.App.4th 1048, 1054.) Hutchinson Trust does not cite any case or statue indicating that a covenant COA cannot be asserted under these circumstances. This action is at the pleading stage and it is not clear that the implied covenant COA is duplicative of the equitable servitudes COA or otherwise improper.

For all these reasons, the Court will overrule the Hutchinson Trust's demurrer to the third COA.

(8) Association's Demurrer to Fourth COA for Breach of Fiduciary Duty

"The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach." (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 932.) "A fiduciary duty is a duty to act with the utmost good faith for the benefit of the other party. It can arise from a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client or from a 'confidential relationship' ... founded on a moral, social, domestic, or merely personal relationship.

The 'essential elements' of a confidential relationship have been described as 1) The vulnerability of one party to the other which 2) results in the empowerment of the stronger party by the weaker which 3) empowerment has been solicited or accepted by the stronger party and 4) prevents the weaker party from effectively protecting itself." (Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587, 629.) "[B]efore 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." (Id.)

As discussed above, "[g]enerally, fiduciary duties owed by a homeowners association to its members are limited to those arising from its governing documents and relevant statutory requirements." (Golden Eagle, supra, 19 Cal.App.5th at p. 425.) The FAC alleges that the Association failed to ensure that remodel work on the Neighboring Property was performed in accordance with the CCRs or other governing documents. (FAC, P.P. 88-97.) However, the provisions allegedly breached by the Association are not stated or described in sufficient detail such that their text or legal effect can be ascertained. (See ibid.)

The FAC provides virtually no content or substance as to section 5.4 of the CCRs pertaining to unit modification. (FAC, P. 3.) Moreover, no CCR provisions are cited as support for the alleged breach of fiduciary duty stemming from the complaint filed by the Association with the County. (See FAC, P.P. 88-97.) There is no reference to CCRs or governing documents requiring the Association to take affirmative actions that were not taken as to these issues. For these reasons, the Court will sustain the Association's demurrer to the third COA with leave to amend.

(9) Association and Hutchinson Trust's Demurrer to Fifth COA for IIED

"The elements of a cause of action for IIED are as follows: (1) Defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, Plaintiff suffered extreme or severe emotional distress. [Citation] Additionally, '[i]t must be conduct directed at the Plaintiff, or occur in the presence of the Plaintiff of whom the Defendant is aware.' [Citation.] 'The requirement that the Defendant's conduct be directed primarily at the Plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.' " (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273.)

"Severe emotional distress means, then, emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it." (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) "Behavior may be considered outrageous if a Defendant abuses a position which gives him power to damage the Plaintiff's interest." (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123.) "Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability." (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.)

For example, "a reasonable juror could conclude that forcing a patient who had recently miscarried to look at what she believed to be her dismembered fetus was extreme and outrageous." (So v. Shin (2013) 212 Cal.App.4th 652, 673.) "[R]epeated threats of physical harm directed to Plaintiffs, stated in graphic terms, were sufficient acts of extreme and outrageous conduct with intent to cause emotional distress." (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 809.) Comparatively, allegations of "Defendants misleading Plaintiffs into believing they would be compensated in an amount that would allow them to retire if they continued to work for [Defendants] until the company was sold ... [are] not extreme or outrageous to support a cause of action for intentional infliction of emotional distress." (Moncada v.

West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780-781.) "The denial of benefits for an experimental treatment to a terminally ill patient may arouse our sympathy, but it cannot be regarded, standing alone, as outrageous conduct." (Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1609.)

The fifth COA for IIED is asserted by Bingham in her individual capacity against all Defendants. The FAC alleges generally that the Association failed to take action to prevent the Alleged Noise as required by its governing documents. The FAC also alleges that the Association initiated or arranged an action with the County as to the Neighboring Property that was not to Bingham's satisfaction and without providing Bingham the notice she contends was due. The Court does not make light of the impact these events had had on Bingham. However, without more, the FAC fails to allege facts indicating that the Association or Hutchinson Trust engaged in extreme and outrageous conduct exceeding all bounds of decency in a civilized community and directed such conduct at Bingham. The Court will sustain the Association and Hutchinson Trust's demurrer to the fifth COA for IIED with leave to amend.

(10) Association and Hutchinson Trust's Demurrer to Sixth COA for NEID

The law in California imposes a duty to avoid causing emotional distress in two general instances. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) "The first involves 'bystander' situations 'in which a Plaintiff seeks to recover damages as a percipient witness to the injury of another.' [Citation.] ... 'In the absence of physical injury or impact to the Plaintiff himself, damages for emotional distress should be recoverable only if the Plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness." (Id. at pp. 1509-1510.)

"The second source of duty is found where the Plaintiff is a 'direct victim,' in that the emotional distress damages result from a duty owed the Plaintiff that is 'assumed by the Defendant or imposed on the Defendant as a matter of law, or that arises out of a relationship between the two.' " (Id. at p. 1510.)

Here, Bingham argues that she alleged bystander liability in that the Residence, an asset of the CB Trust, lost value as a result of the Alleged Noise and that Bingham witnessed the Alleged Noise. (Opp. to Hutchinson Trust Demurrer, p. 11., l. 16 - p. 12, l. 16.) However, the bystander liability for NEID "limit[s] the right to recover for negligently caused emotional distress to Plaintiffs who personally and contemporaneously perceive the injury-producing event and its traumatic consequences." (Thing v.

La Chusa (1989) 48 Cal.3d 644, 666.) "[I]n the absence of physical injury, the Courts have never allowed recovery of damages for emotional distress arising solely from property damage or economic injury to the Plaintiff." (Butler-Rupp v. Lourdeaux (2005) 134 Cal.App.4th 1220, 1228.) NEID claims are not allowed where the alleged non-physical injury "derive[d] from an inherently economic concern." (Ibid.) The Alleged Noise was not the result of a traumatic, injury-producing event to a close relative and the CB Trust is not a victim in this context. "A ... trust ... is simply a collection of assets and liabilities." (Greenspan v.

LADT, LLC (2010) 191 Cal.App.4th 486, 522.) Bingham was allegedly informed by an appraiser that the value on the Residence would be reduced if the Alleged Noise was not abated. This is not the type of injury that supports an NEID claim. The FAC does not allege facts sufficient to support an NEID claim based on bystander liability. For these reasons, the Court will sustain the Association and Hutchinson Trust's demurrer to the sixth COA with leave to amend.

(11) Hutchinson Trust's Motion to Strike

"Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof ...." (Code Civ. Proc., Sec. 435, subd. (b)(1).) "The Court may, upon a motion made pursuant to [s]ection 435, or at any time in its discretion, and upon terms it deems proper: [P.] ... [s]trike out any irrelevant, false, or improper matter inserted in any pleading." (Code Civ. Proc., Sec. 436, subd. (a).) "In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth." (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Hutchinson Trust seeks to strike "[a]ll punitive damages allegations asserted against the Hutchinson Trust," "[a]ll claims and allegations for emotional distress damages as against the Hutchinson Trust," and "[a]ll claims for attorney[] fees asserted against the Hutchinson Trust." (Motion, p. 1, ll. 26 - p. 2, l. 1.) Bingham argues that Hutchinson Trust failed to comply with the Rules of Court. "A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense." (Cal. Rules of Court, rule 3.1322.)

The Court agrees with Bingham. Hutchinson Trust's motion does not quote the language or cite the paragraphs it seeks to strike from the FAC. The Court also notes that the ruling on demurrer as to the COA for IIED and NEID moots some of the arguments pertaining to punitive damages and emotional distress damages, and the ruling on some of the other COAs may impact the arguments as to the prayer for attorney fees. For all these reasons, the Court will deny the Hutchinson Trust's motion to strike. This ruling is without prejudice to Hutchinson Trust filing an appropriate motion to strike on these issues as to any amended pleading.

(12) Meet and Confer Efforts

As to any additional motions to strike or demurrers pertaining to an amended pleading, the parties are obligated to meet and confer in good faith as to the substantive issues. "Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading." (Code Civ. Proc., Sec. 430.41, subd. (a).)

"As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency." (Code Civ. Proc., Sec. 430.41, subd. (a)(1).)

If an amendment is anticipated, the Court encourages the parties to exchange a draft of the amendment before it is filed so that the parties can effectively address and narrow any further disputes during their meet and confer efforts.

Tentative Ruling: Douglas W. Gotthard v. Sonatech, LLC, et al. Tentative Ruling: Douglas W. Gotthard v. Sonatech, LLC, et al.