Chang v. Windwood Townhomes Maintenance Association

Saunders v. Cariss (1990) 224 Cal. App. 3d 905, 908. A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809 (disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4 th 300).

Discussion

Third Cause of Action for Nuisance The elements of an action for private nuisance are: (1) interference with use and enjoyment of property; (2) that is substantial, i.e., that causes the plaintiff to suffer “substantial actual damage”; and (3) that is unreasonable. San Diego Gas & Electric Co. v. Super. Ct. (1996) 13 Cal.4th 893, 938. “[A] plaintiff bringing a cause of action for private nuisance must show harm to a property interest.” Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 402.

“[T]o proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.” Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5 th

248, 262. “First, the plaintiff must prove an interference with his use and enjoyment of his property. (Ibid.) Second, ‘the invasion of the plaintiff’s interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer ‘substantial actual damage.’ Ibid. Third, ‘[t]he interference with the protected interest must not only be substantial, but it must also be unreasonable’ [citation], 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.’” Id. at 262-263.

Here, Plaintiffs have not alleged a current or continuing condition that is depriving them of the use and enjoyment of their property. Rather,

Plaintiffs allege that as a result of the fire and during the unduly extended time of repair they were deprived of the use of their units and that this loss caused them damages that they seek to recover. [Complaint, ¶¶ 81-91.] Nor do Plaintiffs seek an injunction against any conduct or condition that is currently depriving them of the use and enjoyment of their property. [Id. at Prayer.]

In short, this is a negligence claim – which is already asserted in Plaintiffs’ complaint in the second cause of action. Indeed, the second cause of action alleges the same conduct by each of Meng and the HOA causing the same damages. [See Complaint, ¶¶ 72-80.]

“‘Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.’” Avedon v. State, 186 Cal. App. 4th 1336, 1345 (2010), review denied (Oct. 13, 2010) (quoting El Escorial Owners’ Ass’n v. DLC Plastering, Inc., 154 Cal. App. 4th 1337, 1349 (2007) and citing Melton v. Boustred, 183 Cal. App. 4th 521, 542 (2010)). Furthermore, a nuisance cause of action pleaded in a complaint not requesting an injunction but seeking only damages renders a nuisance cause of action as a negligent cause of action. 2 California Ins. Law Dictionary & Desk Ref. § N41 (2011 ed.) (citing El Escorial Owners’ Ass’n v. DLC Plastering, Inc., 154 Cal. App. 4th 1337, 1349 (2007) wherein it is stated, “A cause of action alleging a continuing nuisance is usually accompanied by a request for an injunction.”)

Accordingly, the demurrer is sustained.

Motion to Strike Legal Standard A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. Code Civ. Proc. § 431.10(b). A motion to strike can also strike legal conclusions. Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010). Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 6.

Motions to strike are disfavored. Pleadings are to be construed liberally with a view to substantial justice. Cal. Code Civ. Proc. § 452; Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:197 (2010). The allegations of the complaint are presumed true; they are read as a whole and in context. Clauson v. Superior Court (1998) 67 Cal. App. 4 th 1253, 1255.

Discussion

Allegations in Third Cause of Action for Nuisance Given the recommendation to sustain the demurrer to the third cause of action for nuisance, the motion to strike directed at allegations within that cause of action is moot.

Attorneys’ Fees In the absence of an agreement for recovery of fees or specific statutory provision, attorneys’ fees are not generally recoverable by the prevailing party in a lawsuit. Trope v. Katz (1995) 11 Cal. 4 th 274, 278-79. Accordingly, in the absence of a basis for recovery, Plaintiff’s prayer for attorneys’ fees is subject to being stricken. Such basis must appear on the face of the pleading or by matters that may properly be judicially noticed. Code Civ. Proc. § 431.10(b)(3).

In this case, Plaintiffs allege a basis for recovery of attorneys’ fees under the Davis-Stirling Act, Civil Code section 5975, which provides that “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs.” Civ. Code § 5975(c).

In his moving papers, Defendant Meng argues that Plaintiffs’ action is not one to enforce the CC&Rs but is simply an action for breach of the CC&Rs.

Plaintiffs’ action for breach of the CCR&Rs is an action to enforce the CC&Rs. Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1381. Moreover, Plaintiffs seek declaratory (i.e., equitable relief) as well as damages. See id. at 1379-1380.

The motion to strike Plaintiffs’ prayer for attorneys’ fees is therefore denied.

Case Management Conference Continued to 8?28?2026 at 9:00 a.m.

Moving party will give notice.