Charles Afshari vs. Gail Johnson

Demurrer to Complaint

Cal. Super. - 4th Dist.September 15, 2017

10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O O 0 3 Joseph P. Tabrisky (SBN 120749) Jeffrey A. Rector (SBN 275233) LITCHFIELD CAVO LLP 251 South Lake Avenue, Suite 750 Pasadena, CA 91101 Tel: 626-683-1100 Fax: 626-683-1113 Email: tabrisky@litchfieldcavo.com Attorneys for Defendants STONEKASTLE PROPERTY MANAGEMENT, INC. and RANCHO YORBA TOWNHOMES ASSOCIATION, INC, SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE -~ CENTRAL JUSTICE CENTER MAHIN AFSHARI, an individual; CHARLES Case No.: 30-2017-00944087-CU-CO-CJC AFSHARI, an individual [Assignedfor all purposes to Hon. Peter Wilson, Department C-15] Plaintiff, DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY VS. MANAGEMENT, INC. AND RANCHO YORBA TOWNHOMES ASSOCIATION, GAIL JOHNSON, an individual; RANCHO INC. TO PLAINTIFFS’ COMPLAINT; YORBA TOWNHOMES ASSOCIATION, DECLARATION OF JOSEPH P. TABRISKY INC., a California Corporation; STONEKASTLE COMMUNITY (Filed Concurrently with request To Take Judicial MANAGEMENT, INC,, a California Notice; Proposed Order) Corporation; and DOES 1-50 inclusive, Date: April 19, 2018 Defendants. Time: 8:30 a.m. Dept.: C-15 RESERVATION NO.: 72766883 Complaint Filed: September 15,2017 Trial: April 15,2019 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on April 19,2018 at 8:30 a.m, in Department C-15 of the above- entitled court, located at 700 West Civic Center Drive, Santa Ana, CA 92701, Defendants STONEKASTLE PROPERTY MANAGEMENT, INC. and RANCHO YORBA TOWNHOMES ASSOCIATION, INC. will and do hereby demur to the Complaint of Plaintiffs MAHIN AFSHARI and CHARLES AFSHARI (“Plaintiffs”), 1 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHO YORBA TOWNHOMES ASSOCIATION, INC, TO PLAINTIFFS’ COMPLAINT « © 3 A N O o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Demurrer is based on California Code of Civil Procedure section 430.10, et seq. in that Plaintiff's Complaint in its entirety fails to state a claim against Defendants, for the reasons set forth in the accompanying Memorandum of Points and Authorities. As set forth in the attached Declaration of Joseph P. Tabrisky, Esq., demurring Defendants have complied with the meet and confer requirements set forth in Code of Civil Procedure section 430.14, This Demurrer is further based on this Notice, the attached Memorandum of Points and Authorities, the Request To Take Judicial Notice concurrently filed herewith, the pleadings and papers on file herein, on such evidence as may be presented at the hearing of the motion, and on such other matters as the Court deems just and proper. DATED: March 6.2018 LITCHFIELD CAVO LLP By Jfseph P. Tabrisky / Jeffrey A. Rector ttorneys for Defendants STONEKASTLE PROPERTY MANAGEMENT, INC. and RANCHO YORBA TOWNHOMES ASSOCIATION, INC. ii DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT,INC.ANDRANCHO YORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT DEMURRER TO PLAINTIFEF’S COMPLAINT Defendants STONEKASTLE PROPERTY MANAGEMENT, INC, (“StoneKastle”) and RANCHO YORBA TOWNHOMES ASSOCIATION, INC. (“the Association”) hereby demur to Plaintiffs Complaint on the following grounds: 1, The Complaint fails to state a cause of action against Defendants because Defendants were not responsible for maintenance of the Defendant GAIL JOHNSON’s Patio Area and Common Walls under the Declaration of Covenants, Conditions & Restrictions (“CC&Rs”) governing RANCHO YORBA TOWNHOMES ASSOCIATION, INC. 2. The First Cause of Action fails to state facts sufficient to constitute a cause of action for breach of contract because the facts as alleged by the Plaintiff demonstrate that defendant RANCHO YORBA TOWNHOMES ASSOCIATION, INC. did not breach any duty owed under the terms and conditions of the CC&Rs 3. The First Cause of Action fails to state facts sufficient to constitute a cause of action for breach of contract because the facts as alleged by the Plaintiff demonstrate that defendant STONEKASTLE PROPERTY MANAGEMENT COMPANY is not a party to the CC&Rs. 4, The Second Cause of Action fails to state facts sufficient to constitute a cause of action for breach of implied covenant of good faith and fair dealing, because the facts as alleged by the Plaintiffs demonstrate that defendant RANCHO YORBA TOWNHOMES ASSOCIATION, INC, did not breach any duty owed under the terms and conditions of the CC & Rs. 5. The Second Cause of Action fails to state facts sufficient to constitute a cause of action for breach of implied covenant of good faith and fair dealing, because the facts as alleged by the Plaintiffs demonstrate that defendant STONEKASTLE PROPERTY MANAGEMENT COMPANY is not a party to the CC&Rs. 0. The Third Cause of Action fails to state facts sufficient to constitute a cause of action for negligence, because the facts as alleged by the Plaintiffs demonstrate that defendant STONEKASTLE PROPERTY MANAGEMENT COMPANY owed no duty of care toward the Plaintiffs relating to the Patio Area of the defendant Gail Johnson. iii DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC, AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT Ea N C e 3 O Y Wi n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. The Third Cause of Action fails to state facts sufficient to constitute a cause of action for negligence against defendant RANCHO YORBA TOWNHOMES ASSOCIATION, INC., because the facts as alleged by the Plaintiffs demonstrate that defendant RANCHO YORBA TOWNHOMES ASSOCIATION, INC. owed no duty of care toward the Plaintiffs relating to the Patio Area of the defendant Gail Johnson. 8. The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action for injunction, because the facts as alleged by the Plaintiffs demonstrate that defendant STONEKASTLE PROPERTY MANAGEMENT COMPANY owes no duty toward the Plaintiffs relating to the Patio Area of the defendant Gail Johnson, 9. The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action for an Injunction against defendant RANCHO YORBA TOWNHOMES ASSOCIATION, INC., because the facts as alleged by the Plaintiffs demonstrate that defendant RANCHO YORBA TOWNHOMES ASSOCIATION, INC. owes no duty toward the Plaintiffs relating to the Patio Area of the defendant Gail Johnson. DATED: March 6. 2018 LITCHFIELD CAVO LLP tions for Defendants STONEKASTLE PROPERTY MANAGEMENT, INC. and RANCHO YORBA TOWNHOMES ASSOCIATION, INC. I DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT N o ~ N O o n n W w TABLE OF CONTENTS L. INTRODUCTIONLoitasien senses eben beresesssnasessssssenes 1 II. DEFENDANTS MADE MANY GOOD-FAITH EFFORTS TO AVOID THIS DEMURRERLiisiessesassesses asset sr eb eens ns2 IL STATEMENT OF FACTS oiitiercesesssve sansa sense sns 3 IV. LEGAL STANDARD ON DEMURRER .....ccecormmiiririiririiiinirereinieiniensesnsesssseenssnns 5 V. THE COURT MAY TAKE JUDICIAL NOTICE OF THE CC&RS AND DISREGARD ANY INCONSISTENT ALLEGATIONS OF THE COMPLAINT .....oooiviviniiirecnnnrenseeresneenens6 VI. THE COMPLAINT DOES NOT ALLEGE ANY VALID BREACH OF CONTRACT CLAIM AGAINST THE ASSOCIATION AND/OR STONEKASTLE ....ccoovviviviennienririeiienreennensnenens 8 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VII. PLAINTIFFS’ SECOND CAUSE OF ACTION FOR BREACH OF THE IMPLIED VIII. PATIO AREA oiiessessbeasesestesbesser ean essa s bes en eteresenes 11 IX. PLAINTIFFS’ FOURTH CAUSE OF ACTION FOR INJUNCTIVE RELIEF FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF CANNOT ESTABLISH ANY LIKELIHOOD OF PREVAILING ON THE MERITS ....ciiitiiivrcrinieerinneeieinssssss ies sssessesersissesenns 12 X. THE COURT MAY SUSTAIN THE DEMURRER WITHOUT LEAVE TO AMEND.......... 12 XI. DEFENDANTS ARE ENTITLED TO A MANDATORY AWARD OF ATTORNEYS FEESLooeeeeeeesnes 13 XII CONCLUSIONcitieserasesesses sass eres essa bob ebs erases eressses rs bebesesons 13 v COVENANT OF GOOD FAITH AND FAIR DEALING FAILS AS THE CC&RS DO NOT PLACE A DUTY ON THE ASSOCIATION TO MAINTAIN INDIVIDUAL OWNER’S PATIO AREA AND STONEKASTLE WAS NOT A PARTY TO THE CC&RS .......ccevun.n. 10 LAW BECAUSE NEITHER THE ASSOCIATION NOR STONEKASTLE OWED ANY DUTY OF CARE TO THE PLAINTIFFS WITH REGARD TO DEFENDANT JOHNSON’S PLAINTIFFS’ THIRD CAUSE OF ACTION FOR NEGLIGENCE FAILS AS A MATTER OF DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC, AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT w a ~ ~ oO o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 515 ..ccccvvrriiiimiiieeeereeienn, 11 Blank v. Kirwan (1985) 39 Cal.3d 311, 318 1iirccites snrs errs ste ercosssnesresessssessesseinsseenienes 6 Burt v. County ofOrange (2004) 120 Cal.App.4th 273, 277civicsessere 6 Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880 ..ucvvviviiirirririiririieiesiviiesceed 6 Colapinto v. County ofRiverside (1991) 230 Cal.App.3d 147, 151 cvvviivviiiiiiiiiieiiiieessen 12 Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 897 ...cvvvvvivriiiriirririciiiiinnseneseieere eran 12 Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, 176 Cal.Rptr. 824...... 6 Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 ..cccovvvrvirininnn, 7 Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420....covvcvrirennn. 12 Egan v. Mutual ofOmaha Ins. Co., supra, 24 Cal.3d at p. 818 .vvivvvvvericrieieiiirrieiicneces, 10 Erlich v. Menezes (1999) 21 Cal. 4th 543, 553-54. ..iiiiiivviiiiiiiriieiierie enters essere sess senses sees 11 Evans v. City ofBerkeley (2006) 38 Cal.4th 1, 6..ivivveiiiiriiiiiiiiriiss creer assess sree sesoseesess sien ssssnsenes 6 Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-266 ......ccccovvvirvinreriecirnirinnnn, 7,8 Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 105, 107 v.cevevriviviveiriiiiirerevsreveenen, 11 George v. Automobile Club ofSouthern California (2011) 201 Cal.App.4th 1112, 1128 ...ccvvveviviviviinines 9 Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307...c.ccecviviervirnriiieiririineinsesiierennens 9 Hillsman v. Sutter Community Hospitals (1984) 153 Cal.App.3d 743, 749-750 ....cccvcvervvvverervererenenn. 8 Jones v. Kelly (1929) 208 Cal. 251, 255civicsesses sneer ste sressetsstevessssssssressesessons 11 Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 126 ....cccovvivvirvivnriiirineserinnns 6 Love v. Fire Insurance Exchange (Ct. App. 1990), 221 Cal. App. 3d 1136..c.cccvviviiiviiirieirinrecinnnnninns 10 Oasis West Realty, LLC v. Goldman (2011) 51 Cal.dth 811, 821 .iiicivvivveviviiiiieiiiciisieensese eensesas 9 Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 458-459 ...cocovvevvvvcrvirnnnn, 9 People ex rel. Dept. ofTransportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484 ........cccov.on... 6 Perry v. Robertson (1988) 201 Cal.ADPP.3d 333, 341 c.ivviiiiieviiniiieiecseneeseeseeeseesesssesssseesssesesssrssssenns 8 Rakestraw v. California Physicians’ Service (2000) 81 Cal.APP.4th 39, 43...ovveveceerrecsineeresseessesesonns 6 Reinhardt v. Gemini Motor Transport (E.D. Cal. 2012) 879 F.Supp.2d 1138, 1143 .vvvveverrerrererresserin 9 vi DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC, TO PLAINTIFFS’ COMPLAINT x a O O \ O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Schifando v. City ofLos Angeles, 31 Cal, App.4™ 1074, 1081 ovvuvveevevvveerereeeeesesseesessessseseesesssssessos sees 6 Scott v. JPMorgan Chase Bank, N.A., (2013) 214 Cal.App.4th 743, 754 ....cvviviviviniinviiiinseienanns 6,7 Tract 19051 HOA v. Kemp (2015) 60 Cal.dth 1135civicssenses ene ns 13 STATUTES CIVIL COR § SOTS(C) rveireriiiiiiiiieiriie irisesieeeesters eter tars obe aster este st este ste ste stan taseesesestoseressssereese sss esenses 13 Code ofCivil Procedure § 526(a)(1)vivianisessssissessotesssesesssesesesssssssssssensasesssnns 12 Code ofCivil Procedure §430.30 .....c.cccovvvivrininEeeeeeeb ete eases e bree e entree beers 6 Evidence Code § 452 (£)uitsersisssesissessssestssesteseesestesestessesesesserssesessree reese sesseres es 7 Evidence Code § 452 ().iiiiiiiviiiiioeiriiiiniiereirieserssssreiessseseeteststessesessessesessesessesesessessseseesosesensasessone 7 OTHER AUTHORITIES 4 Witkin, Cal. Procedure (Sth ed., 2008) Pleading, §397, p. 536; see also, id., §431, p. 564; id., §440, p. S72ctY eh tartare atest aah ees h tense esate nae an tanta ar rere stent ene eete sree irees 6 vii DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION To manufacture a case where none exists, Plaintiffs quoted clauses out of context from recorded document, misstated the meaning of several critical terms which are defined in those unrelated clauses, and excluded clauses of the recorded document which directly contradict the allegations of the Complaint. All combined they renderthis entire action against the property manager and the homeowners’ association meritless as a matter of law. Critically, because the plaintiffs’ ill-conceived action against the homeowners’ association seeks to enforce the terms and conditions of a governing document, not only is a demurrer without leave to amend required, but the court must order the plaintiffs to pay the defendants their attorneys’ fees and costs under the mandatory provisions of the Davis- Stirling Common Interest Development Act, This matter allegedly arises out of defendant Gail Johnson’s decision to construct an artificial pond in her “Patio Area” sometime in 2011. Plaintiffs claim that they suffered water damage in their home as a result of the pond. Critically, the allegations of the Complaint not only do not support any claim against the construction of the pond was defective and caused water damage to their home which is adjacent to defendant Johnson’s home. Plaintiffs allege that Johnson’s construction of the pond on her property Unfortunately, plaintiffs now wish to drag the Association and the Property Manager into the dispute between them and Johnson by mischaracterizing the terms and conditions of the Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for Rancho Yorba Townhomes, A Planned Residential Development (hereinafter referred to as “CC&Rs”), particularly two key expressly defined “Patio Area” and “Common Area” and also by ignoring critical sections of the CCR’s which directly contradict the allegations of their Complaint and make it plain that neither the Association or the Property Manager owed any duty of care under the CC&Rs for the Johnson’s construction on her property. Those sections of the CC&Rs make it clear that the Association’s maintenance and care duties ceased understandably terminated at the exterior of a wall or fence on the 1 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT O o 0 a 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 individual owner’s property and that Common Area is wholly limited to a specifically defined areca commonly available to all of the individual owners in the area, Given the wholesale conflict between the express terms of the CC&Rs and the allegations of the Complaint, the court can and should sustain the demurrer without leave to amend. As will be demonstrated more fully below, applying the “truth in pleading doctrine” the court may and should disregard any of the allegations of the Complaint which Given Plaintiff's wholesale violation of the “truth in pleading doctrine” not only should the court sustain the Association’s demurrer to the Complaint, but given the conflict under there simply is no grounds for permitting an action to go forward against either the HOA or the property manager relating to work performed by This is an action for breach of contract, breach of covenant of good faith and fair dealing, negligence, and injunctive relief brought by Plaintiffs for damage to their townhome caused by water intrusion from a pond constructed in the Patio Area of an adjoining townhome owned by Defendant GAIL JOHNSON (“Johnson”). Plaintiffs also named the Association and Stonekastle, respectively. Plaintiffs’ entire Complaint against the Association and StoneKastle is without merit as the CC&Rs plainly assign sole responsibility for the Patio Areas to the individual unit owners, in this case the Plaintiffs and defendant Johnson, not the Association or Stonekastle. Contrary to Plaintiffs’ misleading references, defined term “Common Area”is strictly limited to the pool and other commonly used areas of the development. It is clear from the facts as alleged in the Complaint that the condition of which Plaintiffs complain solely was created by defendant Johnson’s construction of a pond in her Patio Area. Accordingly, Defendants owe the Plaintiffs no duty of care with regard to any damages which may have resulted from the construction of the pond in the patio area.. Given the foregoing, the Complaint fails to state any facts upon which any cause of action may be asserted against the Defendants, and their demurrer should be granted without leave to amend. II. DEFENDANTS MADE MANY GOOD-FAITH EFFORTS TO AVOID THIS DEMURRER. California Code of Civil Procedure section 430.41 requires a demurring party to attempt an informal resolution of the issues giving rise to the demurrer by meeting and conferring with the 2 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 opposing party. Prior to the filing of this Demurrer, Defendant’s counsel “met and conferred” with Plaintiffs’ counsel as early as October 24, 2017 in an attempt to resolve the issues with Plaintiffs’ Complaint without the necessity of a formal demurrer. Subsequently, Defendants’ counsel contacted Plaintiffs’ counsel on numerous occasions to avoid this demurrer, but did not receive any return communications, Accordingly, this demurrer unfortunately became necessary. (Declaration of Joseph P. Tabrisky (“Tabrisky Decl.”) 49 3.) III. STATEMENT OF FACTS The Association is a California Common Interest Development corporation doing business in Orange County, California, (Complaint, § 4.) StoneKastle is a property management company doing business in Orange County, California hired by the Association to, inter alia, “manage the property and maintain the common areas of the townhomes that are the subject of the complaint. (Complaint, § 5.) Sometime prior to July, 2011, Defendant GAIL, JOHNSON modified the Patio Area of her property and installed a pond in the Patio Area. (Complaint, §9.) The pond is situated directly against the common wall between the Plaintiffs’ property and defendant JOHNSON’s property and uses the common wall for support. (Complaint , § 9.) On or aboutthe first week in January 2016, following a rainy period, water leaked through common wall between Plaintiffs property and Johnsons causing damage to the Plaintiff’s interior wall. (Complaint , 9 10.) The Plaintiffs’ and Johnson’s townhomes lack exterior drain inlets, gutters, and downspouts preventing precipitation away from the common wall. (Complaint, § 10.) Thus. instead of draining away from the common wall, the water collects against the common wall and seeps through to Plaintiffs property. (Id.) On January 26, 2016 Plaintiff arranged for an inspection oftheir property as well as Johnson’s property. (Complaint , § 15.)The inspection disclosed that the sole cause of the damage was the pond defendant Johnson constructed behind a common wall in the Patio Area and that she had not provided enough drainage. (Complaint, § 15.) Additionally, defendant Johnson allegedly had placed bricks surrounding the pond which were not leveled. Put simply, Plaintiffs allege that defendant Johnson’s 3 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “pond and water feature element on her patio directly against the common wall caused or contributed to water damaged and a termite infestation.” (Complaint, 4 15.) As Plaintiffs allege, the duties and responsibilities of the Association are contained in the CC&Rs. (Complaint, 420.) The CC&Rs were recorded in the Official records of Orange County, California on December 7, 1976. (See, Exhibit “1” Request To Take Judicial Notice, certified copy of the Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for Rancho Yorba Townhomes, A Planned Residential Development (hereinafter referred to as “CC&Rs™) Article I of the CC&Rs sets forth the governing definitions. Article I, Section 11 of the CC&Rs defines “Common Area” as follows: “Common Area” shall mean all the real property and improvements, including without limitation, a recreation building, a swimming pool, landscaped arcas and private roadways and walkways, which are owned by the Association for the common use and enjoyment of all of the Owners. The Common Area to be so owned by the Association at the time ofthe conveyance ofthe first Lot in the first phase of development shall include that certain real property located in the City of Anaheim, County of Orange, State of California, described more particularly as follows . .. (See, CC&Rs, page 3.) Article I, Section 27 sets forth the definition of “Patio Area” to “mean and refer to the courtyard area on each Lot enclosed with a fence as originally constructed by Grantor or as altered with the consent of the Architectural Committee.” (See, CC&Rs, page 5.) Therelative Maintenance and Repair Obligations between the owners and the Association are set forth in Article IX of the CC&Rs. Article IX, Section 2 provides that Section 2. Maintenance Obligations of Owners, Subject to the duty of the Association to provide for maintenance as provided in Article IX, Section 3, of this Declaration, it shall be the duty of each Owner at his sole cost and expense, subject of the provisions ofthis Declaration regarding Architectural Committee approval, to maintain, repair, replace and restore areas subject to the exclusive control in a neat, sanitary and attractive condition. Areas subject to the exclusive control of an Owner shall be deemed to include, but not limited to, the interior and all glass portions of the Owner's Dwelling Unit and the Patio Area on that individual Owner's Lot. Grantor may, in any filed upon any portion of the Properties, designate any portion of any Lot owned by Grantor as a Patio Area, and may declare it to be the duty of the Owner thereof to maintain, repair, replace and restore such Patio Area within his Lot in a safe, sanitary and attractive condition, subject to the approval of the Association as provided in this Declaration. In the event that any Owner shall permit any Improvement, whichis the responsibility of such Owner to maintain, to fall into disrepair or not to be so maintained so as to create a 4 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC, TO PLAINTIFFS’ COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dangerous, unsafe, unsightly or unattractive condition, or to otherwise violate this Declaration, the Board shall have either the right to seek any remedies at law or in equity which it may have, and the right, but not the duty, after Notice and Hearing, to enter upon such Owner's Lot to make such repairs or to perform such maintenance, and the cost thereofshall be charged to the Owner. Said cost shall be a Special Assessment and shall create a lien enforceable in the same manner as other assessments as set forth in this Declaration. (See, CC&Rs, page 19.) Article IX, Section 3 governs the Association’s maintenance obligations within the community as follows: The Association shall maintain, or provide for the maintenance of all the Common Area and all improvements thereon, including recreationalfacilities, in good order and repair, and shall likewise provide for the exterior painting and minor repair and replacementas necessary of the Structural Maintenance Areas’, commonly metered utilities, and any and all utility laterals and buildings. In addition to building maintenance, the Association shall provide all necessary landscaping and gardening to properly maintain and periodically replace when necessary the trees, plants, grass and other vegetation whichis on the Common Area at the time that it is conveyed to the Association and on an Lot up to the foundation lines of the residential dwelling and up to the fences surrounding the Patio Areas. The Association shall further maintain, reconstruct, replace and refinish any paved surface in the Common Area. All of the foregoing obligations of the Association shall be discharged when and in such manneras the Board of Directors of the Association shall determine in their judgment to be appropriate. (See, CC&Rs, page 20.) (Emphasis added.) Given the limited definition of “Common Area,” the Association’s maintenance and repair obligations are limited to “a recreation building, a swimming pool, landscaped areas and private roadways and walkways, which are owned by the Association for the common use and enjoymentofall of the Owners.” IV. LEGAL STANDARD ON DEMURRER A demurrertests the legal sufficiency offactual allegations in a complaint. (Lee Newman, M.D. Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th 73, 78.) A demurrer does so by raising questions of law. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.) Generally, the complaint must plead facts sufficient to establish every element of each cause of action. (Rakestraw v. California ! Article I, Section 30 defines the “Structural Maintenance Area” to mean: [a]s the same may from time to time exist, the exterior surfaces of all attached row residential townhouse structures, the patio fences, the exterior roofing material of the townhouse structures, the exterior lighting fixtures, and the sidewalks onthe Lots (except within the Patio Areas); Structural Maintenance Areas shall specifically exclude all glass areas. (See, CC&Rs, page 5.) 5 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT o S o C X X J O N n a 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) In turn, “if the defendants negate any essential clement of a particular cause of action, [the] court should sustain the demurrer to that cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880.) The complaint must be pleaded in terms of ultimate facts, for “to withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law.” (Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 126; accord, People ex rel. Dept. ofTransportation v. Superior Court (1992) Cal.App.4th 1480, 1484.) In ruling on a demurrer, the trial court must normally accept as true all material facts properly pleaded in plaintiff’s complaint. Burt v. County ofOrange (2004) 120 Cal.App.4th 273,277.) In additionto the complaint's allegations, the courts also consider matters that must or may be judicially noticed. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Schifando v. City ofLos Angeles, 31 Cal. App.4" 1074, 1081; Code Civ. Proc., § 430.30. Under the doctrine of truthful pleading, the courts “will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts that are judicially noticed.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, 176 CalRptr. 824.) “False allegations of fact, inconsistent with annexed documentary exhibits [citation] or contrary to facts judicially noticed [citation], may be disregarded.” (4 Witkin, Cal. Procedure (5th ed., 2008) Pleading, § 397, p. 536; see also, id., § 431, p. 564; id., § 440, p. 572.) V. THE COURT MAY TAKE JUDICIAL NOTICE OF THE CC&RS AND DISREGARD ANY INCONSISTENT ALLEGATIONS OF THE COMPLAINT Plaintiffs entire complaint against the Association and Stonekastle fails or succeeds solely on the basis of the governing documents of the Association, and specifically the CC&Rs. Because the CC&Rs not only are a recorded public document, but the governing document of the Association, the court can not only properly take judicial notice of the CC&Rs but of the their content and their legal effect. Scot v. JPMorgan Chase Bank, N.A., (2013) 214 Cal.App.4th 743, 754. As previously alluded to, a demurrer may be sustained where judicially noticeable facts render the pleading defective Evans v. City ofBerkeley (2006) 38 Cal.4th 1, 6, and allegations in the pleading may be disregarded if they are contrary to facts judicially noticed. Scott v. JPMorgan Chase Bank, N.A., 6 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC, AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT n o ~ N O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2013) 214 Cal.App.4th 743, 754; Hoffman v. Smithwoods RVPark, LLC (2009) 179 Cal.App.4th 390, 400; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-266 (Fontenot ) [in sustaining demurrer, court properly took judicial notice of recorded documents that clarified and to some extent contradicted plaintiff's allegations].) Evidence section 452(h) provides that judicial notice may be taken of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” In this case, the fact of the CC&Rs and their governance over the Association and plaintiffs as well as the fact that Stonekastle is not a party to the CC&Rsare not reasonably subject to dispute and are capable of ready determination, particularly since the Plaintiffs have alleged the existence and various clauses from the CC&Rsin the Complaint. (See, Complaint, 9921 and 22.) Where judicial notice is requested of a legally operative document, the court may take notice not only ofthe fact of the documentandits recording or publication, but also facts that clearly derive from its legal effect. Fontenot, supra, 198 Cal,App.4th at p. 265. Moreover, whether the fact derives from the legal effect of a document or from a statement within the document, the fact may be judicially noticed where, as here, the fact is not reasonably subject to dispute. In Fontenot, the court explained: “[Clourts have taken judicial notice not only of the existence and recordation of recorded documents but also a variety of matters that can be deduced from the documents. In Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117], for example, the court affirmed the trial court’s taking judicial notice, in sustaining a demurrer, of the parties, dates, and legal consequences of a series of recorded documents relating to a real estate transaction, [Citation.] Although the court recognized that it would have been improper to take judicial notice of the truth of statements of fact recited within the documents, the trial court was permitted to take judicial notice of the legal effect of the documents’ language when that effect was clear. [Citation.]” Fontenot, supra, 198 Cal.App.4th at p. 265. After giving additional examples, the court in Fontenot continued: “Strictly speaking, a court takes judicial notice of facts, not documents. Evid.Code, § 452(g) and (h). When a court is asked to take judicial notice of a document, the propriety of the court’s action depends upon the nature of the facts of which the courttakes notice from the 7 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION,INC. TO PLAINTIFFS’ COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 document... Taken together, the decisions discussed above establishthat a court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity, From this, the court may deduce and rely upon the legal effect of the recorded document, whenthat effect is clear fromits face.” (1d.) (Emphasis added.) Accordingly, Fontenotruled, the trial court did noterr at the demurrer stage in taking judicial notice ofthe identity of the beneficiary of a deed of trust, based on the designation of the beneficiary in the deed oftrust, “sinceits status was not a matter of fact existing apart from the document itself,” Fontenot, 198 Cal.App.4th at p. 266. The deed of trust, as a legally operative document, designated the beneficiary, and therefore the identity of the beneficiary was not reasonably subjectto dispute. (/bid.) Other matters noticed by the trial court could be inferred from the text or legal effect of the documents as well. (/d.) Here,in line with Fontenot, the CC&Rsare recorded with Orange County and operate as the legal governing document of the Individual Owners and the Association. See Civil Code Sections 4135, 4150, and 4205. As the Complaint makes clear, Plaintiffs’ are proceeding against the Association and StoneKastle under the terms and conditions of the CC&Rs and thus this court may and should take judicial notice of the CC&Rs and their terms and conditions. VI. THE COMPLAINT DOES NOT ALLEGE ANY VALID BREACH OF CONTRACT CLAIM AGAINST THE ASSOCIATION AND/OR STONEKASTLE. Given the CC&Rs and the allegations of the complaint,it is apparent that Plaintiffs have failed to allege any facts which could or would support a claim for breach of Contract against the Association or Stonekastle, the property manager. The reason specific pleading of a written contractis required is so that the opposing party is on notice of what obligations and/or dutiesit allegedly owed or did not owe. See, Hillsman v. Sutter Community Hospitals (1984) 153 Cal.App.3d 743, 749-750; see also, Perry v. Robertson (1988) 201 Cal.App.3d 333, 341. Moreover, the opposing party must be given sufficient facts to demurto the claims arising out of or based upon the construction of the text of the contract if appropriate. (Id.) To be entitled to damagesfor breach of contract, a plaintiff must plead and prove the 8 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT n n S O W O 0 N N O N W n 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 following elements: (1) the existence of a contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) resulting damage to the plaintiff. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821; Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830; Reinhardt v. Gemini Motor Transport (E.D. Cal, 2012) 879 F.Supp.2d 1138, 1143. A contract can be attached to a complaint, particularly when Plaintiff is alleging that a provision contained within the contract has a meaning or application different from the meaning that would ordinarily attach to the words written therein. George v. Automobile Club ofSouthern California (2011) 201 Cal.App.4th 1112, 1128. A court can then assess the meaning of the disputed term(s), as alleged in the Complaint, using any extrinsic evidence offered by the parties, such as the attached Contractitself, as it is the Court’s role to consider the sufficiency of the allegations, including any parol evidence allegations,to determing. whether the contract is reasonably susceptible to plaintiff's alleged interpretation. (/d.) In the present case, court can take judicial notice of the CC&Rs and all of the terms thereto should beinterpreted as being incorporated by reference into the Complaint. See Harris v. Rudin, Richman & Appel (1999) 74 Cal,App.4th 299, 307; see also Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 458-459 - “[i]f the action is based on an alleged breach of a written contract, [all applicable] terms must be set out verbatim in the body of the complaint or a copy ofthe written instrument must be attached and incorporated by reference.” (emphasis added.)) Here, the Complaint contains claims that are predicated on the CC&Rs, and Plaintiffs’ allegations that they were damaged as a result of a breach of the terms of the CC&Rs. Plaintiffs allege that the Association and Stonekastle breached their duty to maintain and repair the Common Area, but the undisputed terms and conditions of the CC&Rs demonstrate that the Common Area is specifically identified in them to be limited to the recreational facilities, including the pool area and community room. Moreover, as evidenced by the CC&Rs, Stonekastle, as the property manager hired by the Association, is not a party to the CC&Rs and in all cases neither Stonekastle nor the Association owed plaintiffs any duty with regard to defendant Johnson’s construction of a pond in her Patio Area. In George v. Automobile Club of Southern California, supra, the Court of Appeal affirmed a judgment sustaining a demurrer without leave to amend in a coverage action because the trial court was able to conclude, as a matter of law, that there was no breach the policy terms by reviewing the 9 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC, TO PLAINTIFFS’ COMPLAINT EN N ~ N S N D n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 insurance policy and Plaintiff's complaint; Plaintiff otherwise failed to allege the existence of extrinsic evidence which would alter this outcome. As noted above, the CC&Rs clearly spell out the relative responsibilities of the Association and the Individual homeowners and make the individual homeowners, such as the Plaintiffs and Defendant Johnson solely responsible for their respective Patio Areas. As in George, the Court may sustain the demurrer here, as a matter of law, since there was no breach of the CC&Rs. Further, Plaintiff has otherwise failed to plead the existence of extrinsic evidence sufficient to modify the terms of the CC&Rs. Thus, this Court should sustain the Association’s and Stonekastle’s demurrer without leave to amend on the basis of the plain wording in the CC&Rs as a matter of law. VII. PLAINTIFFS’ SECOND CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING FAILS AS THE CC&RS DO NOT PLACE A DUTY ON THE ASSOCIATION TO MAINTAIN INDIVIDUAL OWNER’S PATIO AREA AND STONEKASTLE WAS NOT A PARTY TO THE CC&RS The present case is similar to Love v. Fire Insurance Exchange (Ct. App. 1990), 221 Cal. App. 3d 1136, wherein the Plaintiffs claimed that delay in denying a claim constitutes bad faith even if no coverage exists. There, the Court ultimately concluded that “a bad faith claim cannot be maintained unless policy benefits are due is in accord with the policy in which the duty of good faith is rooted.” (Id. at 1153). TheCourt further stated that “[t]he covenant of good faith and fair dealing is implied in law to assure that a contracting party ‘refrain[s] from doing anything to injure the right of the otherto receive the benefits of the agreement.” (Egan v. Mutual ofOmaha Ins. Co., supra, 24 Cal.3d at p. 818.)” (Id.) Thus, implied covenants should be viewed 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” and should not be found to add contractual terms which did not otherwise exist. (Id.) Here, as in the Love case, there must be an underlying term of the CC&Rs that was allegedly breached in order for Plaintiffs to assert a cause of action for breach of implied covenants of good faith and fair dealing. However, as discussed above Plaintiffs’ breach of contract claim fails as there is no term in the CC&Rs that was allegedly breached. Plaintiffs’ claims for breach of contract and breach of implied covenants are predicated on a term of the CC&Rs that simply do not exist - a duty to repair or 10 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC, AND RANCHO YORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT o n ~ N O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 maintain conditions within a Patio Area. Since Plaintiffs’ breach of contract claim fails, the claim for breach of implied covenant must necessarily fail as well. VIII. PLAINTIFFS’ THIRD CAUSE OF ACTION FOR NEGLIGENCE FAILS AS A MATTER OF LAW BECAUSE NEITHER THE ASSOCIATION NOR STONEKASTLE OWED ANY DUTY OF CARE TO THE PLAINTIFFS WITH REGARD TO DEFENDANTJOHNSON’S PATIO AREA Plaintiffs’ cause of action for negligence as against Defendants is indistinguishable from their contract claims against Defendants. Generally speaking, a breach ofcontract, even if negligent, will not support a separate tort cause of action for negligence. “Conduct amounting to a breach of contract becomes tortious only when it also violates an independent duty arising from principles of tort law, . ‘[A]n omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.” ” Applied Equip. Corp. v. Litton Saudi Arabia Lid. (1994) 7 Cal. 4th 503, 515 (citing Jones v. Kelly (1929) 208 Cal. 251, 255). “[Clourts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies.” Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 107. The California Supreme Court has, therefore, generally limited tortious breach of contract cases (outside the insurance context) to cases in which (1) the breachis accompanied by a traditional common law tort, such as fraud or conversion; (2) the means used to breach the contract are tortious, involving deceit or undue coercion or; (3) one party intentionally breaches the contract intending or knowing that such a breach will cause severe, unmitigable harm in the form of mental anguish, personal hardship, or substantial consequential damages.” Erlich v. Menezes (1999) 21 Cal. 4th 543, 553-54 (citing Freeman & Mills, Inc., supra, 11 Cal.4th at 105. Plaintiffs have not alleged any facts that would justify a separate negligence cause of action against Defendants. Plaintiffs’ liability allegationsin their negligence claim against Defendants are identical to those contained in their breach of contract claims. As such, the negligence claim is nothing more than an improper attempt to obtain additional tort damages against Defendants that would otherwise be unavailable to Plaintiffs under their contract claims. 11 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT H O w N O O o 0 0 3 O Y Ww ; 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IX. PLAINTIFFS’ FOURTH CAUSE OF ACTION FOR INJUNCTIVE RELIEF FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF CANNOT ESTABLISH ANY LIKELIHOOD OF PREVAILING ON THE MERITS Injunctive relief is available only when it appears by the complaint that the plaintiff is entitled to the relief demanded. Code Civ. Proc. § 526(a)(1). Inasmuch as Plaintiffs cannot state any viable underlying cause of action against Defendants, they are not entitled to the relief demanded, and the cause of action for injunctive relief is likewise barred. “Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction” (emphasis added). (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) As established herein, all of Plaintiffs’ claims fail as a matter of law. Plaintiffs therefore cannot establish any likelihood of prevailing on the merits, and Plaintiffs are not entitled to any Preliminary Injunction. X. THE COURT MAY SUSTAIN THE DEMURRER WITHOUT LEAVE TO AMEND When it does not appear under applicable substantive law that there is a reasonable probability that a complaint's defects can be cured, a trial court does not abuse its discretion in sustaining a demurrer without granting leave to amend. Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 897. In the instant matter, Plaintiffs claims against Defendants are barred and deficient as a matter of the language of the CC&Rs and the facts pled. The terms of the CC&Rs will not change, and the Plaintiffs cannot plead inconsistent facts in a subsequent Complaint without rendering it a sham. See Colapinto v. County ofRiverside (1991) 230 Cal.App.3d 147, 151 (“If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.”). Given the foregoing, Defendants’ demurrer should be sustained without leave to amend. 12 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC, AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT XI. DEFENDANTS ARE ENTITLED TO A MANDATORY AWARD OF ATTORNEYS FEES Both California law and the CC&Rs mandate an award of attorneys’ fees to the prevailing party in an action governed by the Davis-Sterling Act, See CC&Rs, Article XV, Section 1(a); Civil Code § 5975(c); Tract 19051 HOA v. Kemp (2015) 60 Cal.4th 1135. Defendants will seek attorneys’ fees at such time this demurrer is sustained against Plaintiffs without leave to amend. XII. CONCLUSION For the foregoing reasons, Defendants respectfully request that this Honorable Court sustain their demurrer to the Complaint without leave to amend and set this matter for a hearing on Defendants’ Motion for Attorneys’ Fees pursuant to Civil Code Section 5975(c). DATED: March 6.2018 LITCHFIELD CAVO LLP By Jfseph P. Tabrisky J STONEKASTLE PROPERTY MANAGEMENT, INC. and RANCHO YORBA TOWNHOMES ASSOCIATION, INC. 13 DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JOSEPH P. TABRISKY I, Joseph P. Tabrisky, declare: 1, [ am a partner with the law firm Litchfield Cavo LLP, counsel of record for Defendants STONEKASTLE PROPERTY MANAGEMENT, INC. and RANCHO YORBA TOWNHOMES ASSOCIATION, INC. (“Defendants”) in this action. I have personal knowledge of the following facts, and if called as a witness, I could and would testify competently to each ofthe following matters. 2. On October 18, 2017, I sent a letter to counsel for Plaintiffs setting forth the points raised in this demurrer and requested that counsel contact our office no later than October 23, 2017 to discuss whether we could resolve the issues identified in the demurrer without need for involvement of the Court. A true and correct copy of my correspondence of October 18, 2017 is attached hereto as Exhibit “AP 3. Subsequently, on October 24, 2017, Mr. Peterson, his paralegal, and I discussed the matter, including the terms and conditions of the CC&R’s and the Davis-Stirling Common Interest Development Act. At that time, I conveyed a copy of the CC&Rs to the Plaintiffs. He then offered an open extension of time while he reviewed the CC&Rs. 4. Having not heard anything further from Mr. Peterson, I sent a letter to him on November 28, 2017 again requesting that he dismiss the action and reminding him that we would seek attorneys’ fees under the mandatory provisions of the Davis Stirling Common Interest Development Act if we did not receive a request for dismissal. A true and correct copy of Mr. Tabrisky’s correspondence of November 28, 2017 is attached hereto as Exhibit “B.” 5. On February 14, 2018, I sent my final letter again asking that Mr, Peterson confirm that the Association and StoneKastle be dismissed from the action. Having not heard anything in response to our demands, I have caused this demurrer to be filed. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 6" day of March 20,1 8,at Pasadena, California. Joseph P. Tabrisky 1 DEMURRER OF DEFENDANTS SYONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHOYORBA TOWNHOMES ASSOCIATION, INC. TO PLAINTIFFS’ COMPLAINT Exhibit “A” LITCHFIELD -251 S, Lake Ave, Suite 750 Pasadena, CA 91101 Attorneys at Law Ip 626-683-5099 026-683-1113 (fax) Joseph P, Tabrisky Email: tabrisky@litchfieldcavo.com October 18, 2017 VIA FAX John Petersen, Esq. L. A, Legal Offices 507 North Central Avenue Glendale, CA 91203 Re: Afshar, et. al. v. Gail Johnson, et. al., Orange County Superior Court Case No.: Our Clients: Rancho Yorba Townhomes Association, Inc, and StoneKastle Property Management, Inc. Our File No.: 9074-4950 Dear Mr, Petersen: This firm represents StoneKastle Property Management, Inc. (“StoneKastle”) and Rancho Yorba Townhomes Association, Inc. (“the Association”) in the above-referenced matter. We tried speaking with you via telephone last weekto discuss this matter, but we were not favored with a response. Accordingly, please allow this letter to serve as our clients’ formal attempt to “meet and confer” pursuant to Code of Civil Procedure Section 430.41 with you regarding the pleading deficiencies in the complaint that render it subject to a demurrer. As you will note from this letter, we do not believe that the deficiencies can be curedand respectfully request that you dismiss ourclients from this action, More to the point, we believe that this action has been brought in violation of the Davis-Stirling CommonInterest Development Act, Civil Code Sections 4000- (hereinafter referred to as “the Act”) and accordingly believe that not only is yourclients’ complaint statutorily subject to a demurrer under the Act, but accordingly the Association and StoneKastle will be entitled to a mandatory award of attorneys’ fees from your clients under the Act, Civil Code Section 5975(c); Tract 19051 HOA v. Kemp (2015) 60 Cal.4th 1135, More importantly, should this matter proceed any further in this litigation, we believe that as a matter of law that the governing documents, most particularly the Declaration of Covenants, Conditions & Restrictions (“CC&Rs”), the Act, and common law demonstrate that your clients’ claims that the Association and StoneKastle owed a duty of care with regard to Ms. Johnson’s construction of the pond in her patio area to your clients under the CC&Rs is meritless as a matter of law, We accordingly will seek attorneys’ fees and costs against your clients incurred by our clients in defending this action brought against them pursuant to Civil Code Section 5975(c). Chicago e Hartford e Boston # New York ® New Jersey o Pittsburgh e Philadelphia e Houston Los Angeles » Fort Lauderdale ® Tampa ® Wisconsin @ West Virginia Salt Lake City Indiana St. Louis Atlanta e Providence ® Las Vegas # Dallas-Fort Worth # Louisiana www.litehfieldcavo.com LITCHFIELD Attorneys at Law CAVO ur John Petersen, Esq. October 18, 2017 Page 2 Your complaint alleges four causes of action against our clients: (1) breach of contract against the Association and StoneKastle; (2) breach of the implied covenant of good faith and fair dealing against the Association; (3) negligence against all Defendants; and (4) Injunctive Relief against all Defendants. As it relates to our clients, the four causes of action are premised upon your contention that both the Association and Stonekastle owed your clients a duty under the CC&R’s with regard to the “Common Area” for the pond constructed by Ms, Johnson in the Patio Area of her property. As will be discussed more fully below, and should this matter proceed any further, the unequivocal terms of the CC&Rs demonstrate that your interpretation of the Common Area does not support the action and accordingly there has been nobreach of any recognizable duty under the CC&Rs which would support this enforcement action against StoneKastle or the Association, Your Action Against StoneKastle Property Management and Rancho Yorba Townhomes Association is Barred By Civil Code Section 5950. As your complaint makes plain, you are seeking to enforce the governing documents, specifically the CC&Rs of the CID and thus are subject to the requirements of the Act, See Civil Code Section In this regard, your action against Rancho Yorba Townhomes Association and StoneKastle Property management, Inc, is subject to Civil Code Section 5950. That section states; (a) At the time of commencement of an enforcement action, the party commencing the action shall file with the initial pleading a certificate stating that one or more of the following conditions are satisfied: (1) Alternative dispute resolution has been completed in compliance with this article. (2) One of the other parties to the dispute did not accept the terms offered for alternative dispute resolution. (3) Preliminary or temporary injunctive relief is necessary. (b) Failure to file a certificate pursuant to subdivision (a) is grounds for a demurrer or a motion to strike unless the court finds that dismissal of the action for failure to comply with this article would result in substantial prejudice to one ofthe parties. There simply is no question that you have failed to file the required certificate, because no such attempt was made by your clients to comply with the mediation or arbitration requirements of the Act. Given the complete lack of compliance, we respectfully request that you immediately dismiss our clients from the Action. LITCHFIELD Altorneys at Law CAYO Ie John Petersen, Esq. October18, 2017 Page 3 Your Action Against StoneKastle and the Association is Meritless as A Matter of Law Given your quotes within your complaint from the CC&Rs, we presume that you have a complete copy of the CC&Rs in your possession, but chose to not attach it to the complaint. While a demurrer is directed to the four corners of the complaint, it is well settled in California that recorded governing documents, such as CC&Rs,are subject to judicial notice and thus may be considered by the Courts in a demurrer to a pleading, See, Scott v. JPMorgan Chase Bank, N.A., (2013) 214 Cal.App.4th 743, 754 (“Moreover, whetherthe fact derives from the legal effect of a document or from a statement within the document, the fact may be judicially noticed where, as here, the fact is not reasonably subject to dispute.”). In conjunction with the demurrer, we intend to file the recorded CC&Rs and ask the court to take judicial notice, including the terms and conditions. We believe that when the court evaluates the CC&Rs, particularly the definitions of Common Area and Patio Area, it will understandably conclude that the CC&Rs do not impose any duty upon either StoneKastle or the Association with regard to the common wall separating your clients’ property from Ms. Johnson’s property. In addition to the fact that the CC&Rs do not support your claims that the Association and StoneKastle owed any duty relating to the common wall between the parties, StoneKastle, as a property manager employed by the Association is not a party to the CC&Rs and therefore cannot be held liable for breach of CC&Rs. Moreover, since StoneKastle became the property manager well after the construction of the pond, it cannot be held liable in all cases for any defect in its construction. The Second Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing Against the Association is Meritless In addition to the lack of duty on the part of StoneKastle and the Association, to the fact that StoneKastle is not a party to the CC&Rs and therefore cannot be held liable for breach of contract, and to the fact that StoneKastle was not property manager when the walls or the pond were constructed, the Second Cause ofAction for Breach of Implied Covenant of Good Faith and Fair Dealing against the Association makes no sense. The CC&Rs do not require that the Associationact as an insurer and to put it mildly there simply is no mention of insurance claims. Under the circumstances, the Second Cause of Action simply should be withdrawn. Conclusion We will seek to file a demurrer to the Complaint based on the foregoing reasons. We are hopeful that a resolution may be reached without a need for a Court intervention. Presently we are unable to determine the deadline sinceit is unclear how you served StoneKastle and the Association, if at all. However, for caution’s sake, we are presuming that you will contend that service was effected on September 25, Assuming that is your contention, thenin light of the upcoming responsive pleading LITCHFIELD Attorneys at Law CAYO 1p John Petersen, Esq. October 18, 2017 Page 4 deadline of October 25, 2017, please inform us of how you intend to proceed by no later than Monday, October 23,2017, Please do not hesitate to contact me by phone should you have any questions regarding the foregoing. | Otherwise, thank you for your anticipated cooperation. Very truly yours, Joseph P.N=) JPT/bag Brom: h Joseph P, Tabrisky, Esq, Date: October 18, 2017 Re: Afshari v. Gail Johnson, et, al. Out File No.: 2446-1139 Message: Please see the attached, Total number ofpages sent including this page: 5 IF YOU DO NOT RECEIVE ALL THE PACES, PLEASE CALL (626) 683-5061 PRAHEENERNN FARMAN KEENGRAG ANDRE NNR KR SK BG WM TNH SI WR KD E56 RMR KT 3M XN BK RNS 0 0 Rt BW wm mM WN NNNConfidentiality Notion: The information ¢antained in this facsimils trangmission may sontein confidential and legally privileged information and is intended only for the party named above. If the readorof this facsimile is not anidentified reolpient, or a fellow employes or agent responsible for the proper delivery of the facsimile to the roolpiont, then any copying dissemination, distribution or other vse of this facsimile, the attachments of the information qontalned herein is prohibited. If you have received this fapstmile in error, please telephone the sender at the above listed number and return the original facsimile and at attachments to the above address via U.S. Postal Service, If requested, wo will reimbise you for your out-of-pocket expenses, ‘Thank you, Chicago » Hartford & Boston » New York » Now Jorsey ¢ Pittsburgh » Philadelphia « Houston Las Angeles » Fort Lauderdale # Tampa « Wisconsin West Virginia o Salt Lake City » Indiana w &t. Louis Atlanta » Providence » Las Vegas o Dallag-Fort Worth » Louisiana www.iitchfieldeayocom JAYANTLE 3q0K A0 LMS (S)3v9d LE 2080 NOILHNT E8PPIRELLAT WEN/ TON XY L59:9T B8I/4T JWIL3Lva EGLEGZIIAPLZEIN + #433 TRL 7A vo dWEN BR:LT LTBZ/BT/8T + FWIL [EY NOIL¥OTATMIA NOTSSIHSNYAL Exhibit “B” LITCHFIELD - Suite 750 -------------- Pasadena, CA 91101 Attorneys at Law LIP 626-683-5099 ’ 626-683-1113 (fax) Joseph P, Tabrisky Email: tabrisky@litchfieldcavo.com November 28. 2017 VIA FAX John Petersen, Esq. L. A. Legal Offices 507 North Central Avenue Glendale, CA 91203 Re: Afshari, et. al. v. Gail Johnson, et. al, Orange County Superior Court Case No,: 30-2017-00944087-CU-CO-CJC Qur File No.: 2446-1139 Dear Mr, Petersen: We refer to our correspondence of October 18 and 23, 2017, our telephone conversation of October 24, 2017, and our subsequent emails which included a copy of the Conditions, Covenants & Restrictions defining and limiting the Common Areas, You hopefully have had an opportunity to examine the CC&R’s and now understand that neither the Homeowners’ Association nor the Property Management Company owed any duty of care to your clients relating to the work performed by Mrs. Johnson in her patio area. “Common Area is narrowly defined under the CC&R.’s and the duties of a Homeowner's Association also are limited under the Davis-Stirling Common Interest Development Act, As we earlier advised, the Act may expose your clients to liability for our attorneys’ fees should she continue to pursue this matter, As muchas we appreciate the courtesy of your providing us with an open extension of time to respond to the Complaint, nonetheless, we are reluctant to let this matter remain dormant for an extended period of time. We especially note that the Court has scheduled a Case Management Conference in January, 2018 and thus we likely need to act well in advance of the conference. Considering our limited options, please advise us at the earliest opportunity but by no later than December 8, 2017 if you are willing to dismiss our clients from the action with each party tobear their own costs, In the event that you do not agree to our offer, we will have no alternative but to file our demurrer to the complaint and seek the court’s assistance in the matter, Under those circumstances, we will have no alternative but to seek reimbursement of ourattorneys’ fees and costs incurred in pursuing the court’s assistance, Chicago e Hartford # Boston » New York e New Jersey Pittsburgh e Philadelphia e Houston Los Angeles o Fort Lauderdale ¢ Tampa ® Wisconsin e West Virginia e Salt Lake City e Indiana St. Louis Atlanta Providence e Las Vegas Dallas-Fort Worth e Louisiana wwwlitehfieldcavo.com LITCHFIELD Allorneys at Law CAYO 1rr John Petersen, Esq. November 28, 2017 Page 2 We again appreciate your professional courtesy itin this matter and look forward to receiving your response to this correspondence, Very truly yours, & Joseph P. Tabrisky JPT/bag TRANSMISSION VERIFICATION REPORT TIME : 11/28/2817 16:52 SER. H : UB3274D6J253793 DATE, TIME 11/28 16:51 Fak NO, NAME 18779664483 DURATION aa: elrll PAGE (5) 83 RESULT OK MODE. STANDARD ’ 1 251 8. Lake Ave,LITCHFIELD Buite 750 RATTRAY . Pasadena, CA 91101 Attorneys at Law \ mp 626-683-5099 616-683-1113 (fax) tabrisky@Htchiieldeayo.com ? TELECOPIER. TRANSMISSION INFORMATION SHEET Name: John Petersen, Esq, Company: L. A, Legal Offices Fax No: (877) 986-4483 From: Joseph P. Tabrisky, Esq. Date: November 28, 2017 Re: Afshari v. Gail Johnson, et, al. Orange County Superior Court Cage # 30-2017-00944087 Qur File No.; 2446-1139 Message: Please see the attached correspondence of today’s date. Total number ofpages sent including this page: 3 Exhibit “C” bs TRANSMISSION VERIFICATION REPORT TIME : 82/14/2018 16:54 NAME + FAX TEL : SER. # : UB3274D6J253793 DATE, TIME 2/14 16:53 FAX NO. /NAME 8779864463 DURATION 00: BB: 56 PAGE(S) po RESULT oie MODE STANDARD WRITER'S ADDRESS: 251 8, Lake Ave, Suite 750 CA O Pasadena, CA 91101eee \V 626-683-5099aw Attorneysat Lr 626-683-1113 (Fax) tabrisky@litchfieldeavo,com TELECOPIER TRANSMISSION INFORMATION SHEET Nanoe; John Petersen, Esq, Company: L. A. Legal Offices Fax No.: (877) 986-4483 . From: Joseph P. Tabrisky, Esq. Date: February 14, 2018 Re: Afshart v. Gail Johnson, et. al. Orange County Superior Court Case # 30-2017-00944087 Our File No,: 2446-1139 v Message; Please see the attached correspondence oftoday’s date, Total number ofpages sent including this page: 2 LITCHFIELD a- A 251 S. Lake Ave, Suite 750 ee CA /O Pasadena, CA 91101 orneys at Law 626-683-5099 Attorney LLP 626-683-1113 (fax) Joseph P, Tabrisky Email: tabrisky@litchfieldeavo.com February 14, 2018 VIA FAX John Petersen, Esq. L. A. Legal Offices 507 North Central Avenue Glendale, CA 91203 Re: Afshari, et. al. v. Gail Johnson, et. al., Orange County Superior Court Case No.: 30-2017-00944087-CU-CO-CJC Qur File No.: 2446-1139 Dear Mr. Petersen: Our office received a telephone call from your legal assistant, “Lorraine,” asking if we had filed our answer yet. We are surprised by the message given our mutual understanding as reflected in your attached email of October 25, 2017 in which you agreed that that you would not undertake any adverse action while you reviewed the Conditions, Covenants & Restrictions and our meet and confer letter, If you are now demanding that we respond to the Complaint and will not be responding to the substance of the meet and confer which we have attached, please advise us in writing of your decision to take this path. In keeping with your earlier representation to us, please also confirm in writing that we will have at least two weeks from today’s date in which to file our response to the complaint. Please understand that, as we stated before, we believe that our only alternative is to file a demurrer fo the Complaint and also seek reimbursement of all attorneys’ fees and costs incurred pursuant to the Davis- Stirling Common Interest Development Act, We look forward to your response to this correspondence. We again appreciate your professional courtesy in this matter and look forward to receiving your response to this correspondence, Very truly yours, oseph P, Tabrisky JPTlyg Chicago ® Hartford ® Boston ® New York ® New Jersey o Pittsburgh e Philadelphia ® Houston Los Angeles ® Fort Lauderdale e Tampa e Wisconsin West Virginia e Salt Lake City e Indiana e St. Louis Atlanta Providence e Las Vegas ® Dallas-Fort Worth e Louisiana www.litchfieldcavo.com EA N O O c o 3 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Afshari v. Johnson, et al. (Orange County Superior Court Case No.: 30-2017-00944087) I, the undersigned, declare that: I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the instant case. My business address is 251 South Lake Avenue, Suite 750, Pasadena, California 91101, On March 6, 2018, I served the foregoing document described as DEMURRER OF DEFENDANTS STONEKASTLE PROPERTY MANAGEMENT, INC. AND RANCHO YORBA TOWNHOMES ASSOCIATION, INC, TO PLAINTIFFS’ COMPLAINT on the interested party(ies) in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: XXX XXX (SEEATTACHED SERVICE LIST) U.S. MAIL (CCP § 1013a(3)) - I am readily familiar with the business practice of Litchfield Cavo LLP’S for the collection and processing of correspondence for mailing with the United States Postal Service. Under that practice, correspondence is deposited with the United States Postal Service that same day with postage pre-paid at Pasadena, California, in the ordinary course of business. Following that practice, I placed the foregoing document(s) for deposit and mailing in the United States Postal Service that same day with postage prepaid, sealed and addressed as set forth above, in the ordinary course of business. BY FACSIMILE - by use of facsimile machine, I served a copy of the document(s) on the interested party by transmitting by facsimile machine to the party(ies) on the proof of service, The facsimile machine I used complied with California Rules of Court, Rule 2.301, and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2.306(h), I caused the machine to print a transmission record ofthe transmission. BY OVERNIGHT DELIVERY - I am readily familiar with the firm’s practice for the daily collection and processing of correspondence for deliveries with the Federal Express delivery service and the fact that the correspondence would be deposited with Federal Express that same day in the ordinary course of business; on this date, the above-reference document was placed for deposit at Pasadena, California and placed for collection and delivery following ordinary business practices (as noted). STATE - I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed on March 6, 2018, at Pasadena, California. Glamor” Brandi A. Gonzales §) 0 -1- PROOF OF SERVICE © 9 O Y \ O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 John Petersen, Esq. 507 North Central Avenue Glendale, California 91203 Tel: (818) 484-5368 Fax: (877) 986-4483 SERVICE LIST Christopher P. Wesierski, Esq. Wesierski & Zurek LLP One Corporate Center, Suite 200 Irvine, California 92606 Tel.: (949) 975-100 Attorneys for Plaintiffs Mahin Afshari and Fax: (949) 756-0517 Charles Afshari Attorneys for Defendant Gail Johnson Eric S. Canfield, Esq. Feldsott Lee Pagano & Canfield 23161 Mill Creek Road, Suite 300 Laguna Hills, California 92653 Tel.: (949) 729-8002 Fax: (949) 729-8012 Attorneys for Defendant Yorba Linda Townhomes Association 2 PROOF OF SERVICE