- Online Services Pay Fines, Transcripts...
- Forms & Filing Forms, Fee Schedule...
- Self-Help Self-Rep, Info, FAQs...
- Divisions Civil, Criminal, Family...
- General Info Local Rules, ADA, Maps...
LAW & MOTION CALENDAR
Wednesday, August 12, 2020, 3:00 p.m.
Courtroom 17 – Hon. Arthur A. Wick
3035 Cleveland Avenue, Santa Rosa
In accordance with the Addendum to First Amended Omnibus Order of the Presiding Judge issued May 27, 2020, only those persons with court hearings in criminal actions shall enter a Sonoma County Superior Court facility. Until further notice, all matters set for hearing in this courtroom shall be heard remotely through Zoom. No party or representative of a party may appear personally in Courtroom 17. CourtCall is not permitted for this calendar.
If the tentative ruling is accepted, no appearance is necessary via Zoom unless otherwise indicated.
TO JOIN ZOOM ONLINE:
D17 – Law & Motion 3:00 pm Wednesday
Meeting ID: 899-2614-3436
TO JOIN ZOOM BY PHONE:
By Phone (same meeting ID and password as listed for each calendar):+1 669 900 6833 US (San Jose)
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Wick’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. on Tuesday, August 11th. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
PLEASE NOTE: The Court WILL provide a Court Reporter for this calendar. If there are any concerns, please contact the Court at the number provided above.
1. MCV-210184, Portfolio Recovery v. McCombs:
This matter is on calendar for the motion by Plaintiff Portfolio Recovery Associates, LLC (“Plaintiff”) filed on April 28, 2020 to vacate the judgment against defendant David McCombs (“Defendant”) and for dismissal of the action. The relief requested by the Motion was granted on June 3, 2020 pursuant to a motion filed by Plaintiff on January 31, 2020, and an order vacating the judgment against Defendant and dismissing this action was entered on June 4, 2020. Based on the foregoing, the present motion is DENIED as MOOT.
2. SCV-262477, Hickey v. Safeway Inc:
This matter is on calendar for the motions by defendant Safeway, Inc. (“Defendant”): 1) to compel Plaintiff Henry Hickey (“Plaintiff”) to provide full and complete responses without objections to its Form Interrogatories, Set No. 2 and for sanctions in the amount of $960; and 2) to deem matters set forth in its Requests for Admission, Set No. 1 admitted by Plaintiff and for sanctions in the amount of $960. The Motions are GRANTED. The matters set forth in the Requests for Admission are deemed admitted and Plaintiff is ordered to serve full and complete verified responses, without objections, to the Form Interrogatories, Set No. 2, within fourteen (14) days of notice of entry of the order granting these Motions. Plaintiff is further ordered to pay Defendant sanctions in the total amount of $1,320 ($660 per Motion), within thirty (30) days of notice of entry of the order granting these Motions.
This matter was referred to the discovery facilitator program and assigned to discovery facilitator Sarah Baxter Kaplan. Ms. Kaplan filed a report on July 30, 2020 which thoroughly summarizes the issues and the parties’ respective positions and states that the parties met and conferred in good faith but were unable to reach a resolution, and provides her view as to the parties’ respective contentions. The Court thanks Ms. Kaplan for her time and service as a discovery facilitator.
Preliminarily, this Motion is timely. The July 9, 2020 order continuing the trial date to April 30, 2021 specified that the continued trial date is deemed the original trial date for purposes of the deadlines set forth in the Discovery Act. Additionally, the Proofs of Service show that the Motions (and then the Amended Notices of Motion) were timely served on Plaintiff at the address set forth on the substitution of attorney substituting himself in for his prior counsel. The Motions are unopposed.
If a party to whom interrogatories were directed fails to serve a timely response, the responding party waives all objections, including those based on privilege and work product protection, and the propounding party may move for an order compelling responses. Cal. Code Civ. Proc. (“CCP”) §2030.290(a)-(b); see also Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404. All that the moving party needs to show in its motion is that a set of interrogatories was properly served, that the time to respond has expired, and that no response has been provided. See Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-906.
Here, Defendant has sufficiently demonstrated that it served its second set of form interrogatories on Plaintiff on February 19, 2020 at the address set forth on his substitution of attorney, and that despite inquiring about whether Plaintiff’s responses would be forthcoming, Plaintiff has failed to provide any responses to Defendant and instead stated that he would not respond without a court order. Leonard Interrogatory Motion Decl. ¶¶ 4-8 & Ex. A. Defendant is therefore entitled to an order compelling full and complete verified responses, without objection, to its second set of form interrogatories.
CCP § 2033.280(a) provides in relevant part that if a party to whom requests for admission are directed “fails to serve a timely response,” the party to whom the requests are directed waives any objection. CCP § 2033.280(b) provides that “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.” CCP § 2033.280(c) provides that the court “shall make this order” unless it finds that the party to whom the requests have been directed has served a proposed response in substantial compliance with section 2033.220 before the hearing on the motion.
Here, Defendant has sufficiently demonstrated that it served its first set of requests for admission on Plaintiff on February 19, 2020 at the address set forth on his substitution of attorney, and that despite inquiring about whether Plaintiff’s responses would be forthcoming, Plaintiff has failed to provide any responses to Defendant and instead stated that he would not respond without a court order. Leonard RFA Motion Decl. ¶¶ 2-5 & Ex. A. Defendant is therefore entitled to an order deeming these matters admitted.
CCP § 2030.290(c), governing motions to compel responses to interrogatories, provides that a monetary sanction “shall” be imposed against the party losing a motion to compel unless the court finds “substantial justification” for that party’s position or other circumstances making sanctions “unjust.” CCP §2033.280(c) provides in relevant part that it “is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” Monetary sanctions are to reimburse a party for “the reasonable expenses, including attorney’s fees, incurred by anyone as a result of” conduct that is a misuse of the discovery process. CCP § 2023.030(a). Sanctions may be imposed even where the responding party does not file an opposition. Cal. R. Ct. 3.1348(a) (“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”)
The Discovery Facilitator’s Report states that Plaintiff told her that his position is that Defendant is also guilty of failing to cooperate in the discovery process and that he believes that the discovery requests are frivolous and abusive. It also states that Plaintiff told her that he did not oppose the Motions due to COVID-19. It further states that Plaintiff told her that he is an elderly man for whom it is not safe to leave home, he does not have the necessary resources at his home in order to file any opposition, and he cannot and/or will not access any of the resources outside of him home that are necessary for him to complete and file any opposition.
While the Court is sympathetic to Plaintiff’s health concerns, the totality of the circumstances shows that imposition of sanctions is justified. Plaintiff did not request any extension of time to respond to the discovery and did not indicate (even to the Discovery Facilitator) why he did not and could not serve timely responses and objections; rather, Plaintiff cites COVID-19 as the reason he could not file any opposition to the Motions. Yet under CCP §§ 2030.290(a) and 2033.280(a), any objections Plaintiff may have to the discovery would not be evaluated in connection with these Motions anyway, in light of his failure to timely object. Plaintiff has consistently taken the indefensible position with both the Discovery Facilitator and with Defendant’s counsel that he would not respond to discovery unless ordered to do so by the Court. And it is Plaintiff’s failure to respond to the discovery (thus necessitating the Motion) which subjects Plaintiff to sanctions.
Discovery is intended to be self-executing. Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1281. And although Plaintiff is in pro per, he is still expected to comply with the same procedural rules as an attorney. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-85 (“Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation…. A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.”) Although sanctions are based solely on Plaintiff’s conduct with respect to the discovery at issue in these two Motions and not any prior conduct, Defendant correctly observes that when Plaintiff was self-represented in 2018, Defendant had to move to compel him to respond to discovery. There too, Plaintiff did not respond to the discovery requests or oppose the motion to compel, further supporting the conclusion that COVID-19 is not the reason for his misuse of the discovery process within the meaning of CCP § 2023.010.
Defendant seeks the following monetary sanctions in connection with each of the two Motions: 3 hours to prepare the motion at $200/hr ($600); filing fee ($60); and 1.5 hours to appear at the hearing at $200/hr ($300). Leonard Interrogatory Motion Decl. ¶ 6; Leonard RFA Motion Decl. ¶ 9. The Court deems the amounts sought for each of these Motions to be reasonable except that no appearance will be necessary. Therefore, the reasonable amount incurred in connection with each Motion is $660 (rather than $960), for a total of $1320 (rather than $1920).
Defendant’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
3. SCV-263015, Kooba v. The Permanente Medical Group, Inc.:
This matter is on calendar for the motion by defendant Permanente Medical Group Inc. (“Defendant”) requesting “reconsideration of the Tentative Ruling and [to] allow oral Argument relating to Plaintiff’s Motion to Lift the Stay of the Proceedings” under Cal. Code Civ. Proc. (“CCP”) § 1008 (for reconsideration) and CCP § 473(b) (for relief from an order on the basis of mistake, inadvertence, or excusable neglect). The Motion is GRANTED under CCP § 473(b). The Court’s ruling made on May 13, 2020 granting Plaintiff’s Motion to Lift Stay of Proceedings filed on November 27, 2019, as reflected in the Order After Hearing entered on June 23, 2020, is hereby VACATED. The hearing on Plaintiff’s Motion to Lift Stay of Proceedings is CONTINUED to October 21, 2020 at 3:00 p.m. in Department 17. No further briefs may be filed. The tentative ruling which was posted on February 20, 2020 will be reposted on October 20, 2020, and if Defendant seeks to challenge the tentative ruling it must notify Plaintiff’s counsel and call in and request oral argument in compliance with the local rules.
CCP § 473(b) provides that the Court may relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. The Court finds that Defendant failed to appear to contest the tentative ruling due to mistake, inadvertence, or excusable neglect in that defense counsel did not have actual notice of the rescheduled hearing date on Plaintiff’s underlying motion to lift the stay with sufficient time to request oral argument to contest the tentative ruling in Plaintiff’s favor.
The minutes from the May 13 hearing state in relevant part that the tentative ruling published on May 12 (which was the same in substance as the one published on February 20) was adopted without contest or appearance by any counsel and that Plaintiff’s underlying motion for relief from stay is granted. Plaintiff’s motion was originally noticed for hearing on February 21, 2020. The minutes from that date reflect that the Court posted a tentative ruling in Plaintiff’s favor and that Defendant requested oral argument, but that “[d]ue to the unavailability of the Court on the originally scheduled date of the hearing, this matter is hereby continued” to the law and motion calendar on February 26. The minutes from the February 26 hearing date reflect that “due to counsel’s unavailability” oral argument on the Court’s previously posted tentative would be heard on March 18, 2020 at 3:00 p.m. in Department 17. Due to the COVID-19 related court closure, oral argument did not proceed on March 18. The court file reflects that on April 29, 2020 the clerk issued Notice Re-Setting Hearing which states that the March 18 hearing was re-set to May 13, 2020, and that the Notice Re-Setting Hearing was served on counsel for both parties. The Declaration of Jane L. Trigero, Defendant’s attorney, states that on May 14, 2020, she was in the office processing mail and opened the Notice of Hearing from the clerk dated April 29, 2020 and metered on May 4, 2020. It stated that the hearing was set for May 13, but prior to receipt of the Notice on May 14, 2020, she and her office were “entirely unaware of the Court setting the motion and entirely unaware that a hearing was to proceed.” She also states that the office and entire building “have been closed since March 16, 2020 at the onset of the shelter-in-place orders.” Trigero Decl. ¶¶ 2-5 & Ex. A (Notice).
Plaintiff’s Opposition contends that the relief sought by Defendant’s Motion is “moot” because Defendant is contesting the tentative ruling but not the “actual Order in this case.” (When the Motion was filed, the tentative ruling had been adopted as reflected in the May 13 minutes, but no separate written order entered, and the written order has now been entered.) Plaintiff contends that if Defendant seeks to contest the order it will have to “file a new motion, writ, or appeal.” Plaintiff argues that there is “no proper avenue to request oral argument” after the “hearing occurred” on May 13 and decision made, as well as when the Motion is directed at the tentative ruling rather than the “Order granting Plaintiff’s motion.” Opp. at 1:22-2:5.
The Court disagrees. Even though a written order was not entered until after the present Motion was filed, “[t]he act of the court is the real order, and the recording in the minutes and the signing of the order [are] but evidences of the order made.” Demens v. Huene (1928) 89 Cal.App. 748, 750. In accordance with applicable rules of court, the tentative ruling—as an uncontested tentative ruling—became an order of the court on May 13, 2020. See California Rule of Court 3.1308(a)(1) (“The tentative ruling will become the ruling of the court if the court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given.”); Local Rule 5.5 A. (“The tentative ruling shall become the ruling of the court, unless any party desiring to be heard so advises the judicial assistant for the Assigned Judge no later than 4:00 p.m. on the court day preceding the law and motion calendar, and further advises the judicial assistant for the Assigned Judge that such party has notified all opposing parties of her/his intention to appear.”)
Here, Defendant is plainly seeking relief from the “Order” on Plaintiff’s underlying motion to lift the stay. See Motion at 2:22-24 (“The Order was entered due to mistake and inadvertence and should be set aside under Code Civil Proc. §473(b) since the Defendant did not receive notice of the hearing due to circumstances beyond everyone’s control- COVID-19.”) And the appropriate relief that corresponds with Defendant’s mistake, inadvertence, or excusable neglect (failing to timely request oral argument due to lack of notice) is precisely what Defendant requests, which is to “allow oral Argument relating to Plaintiff’s Motion to Lift the Stay of the Proceedings.” Amended Notice of Motion at 1:27-28. Thus, the Court vacates its prior order on Plaintiff’s motion for that purpose, and continues the hearing to the date set forth above to permit Defendant to request oral argument.
Defendant’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
4. SCV-264815, Wolf v. Black Bear Diner:
This matter is on calendar for the Motion to Compel Further Responses to Discovery filed by Plaintiffs directed at Prestige Foods, Inc., Gurjit Singh, Grizzlyz, Inc. and Jasvinder Kaur. It is CONTINUED to September 11, 2020 at 2:30 p.m. in Department 17 to be heard alongside the: 1) the Motion to Compel Arbitration filed by Prestige Foods, Inc., Gurjit Singh aka Gary Singh, Grizzlyz, Inc., Jasvinder Kaur, and Arashjot Pawar; 2) the Motion to Compel Arbitration filed by Black Bear Diners, Inc. and BBDI, LLC; and 3) the Motion to Compel Further Responses to Discovery filed by Plaintiffs directed at Black Bear Diners, Inc. and BBDI, LLC.
5. SCV-266034, Boschetto v. McClernan:
Plaintiffs Paul Boschetto and Joan Dinner (“Plaintiffs”) filed the presently operative First Amended Complaint (“FAC”) against defendants Stephanie R. McClernan and Gary N. McClernan (“Defendants”) with causes of action for declaratory relief and permanent injunctive relief. This matter is on calendar for the demurrer by Defendants to each cause of action in the FAC on the grounds that it fails to state facts sufficient to constitute a cause of action (CCP § 430.10(e)) and that it is uncertain (CCP § 430.10(f)). The Demurrers are OVERRULED.
I. The FAC
The FAC alleges that a parcel of real property in Kenwood was subdivided in 1990 into four parcels and that parcels 2-4 became subject to the Via Bella Vista Declaration of Covenants, Conditions and Restrictions (“VBV CC&Rs,” Pet. Ex. A). Plaintiffs Boschetto and Dinner are the owners of parcels 4 and 3, respectively, and Defendants are the owners of parcel 2.
The FAC alleges that Article 3, Section 1 of the VBV CC&Rs limits occupation of any parcel to a single family, with domestic employees, and Section 2 prohibits business or commercial activity. It alleges that Defendants have explicitly stated their intent to violate these sections “by renting out some portion of their property via short-term rentals and/or using their property for other business ventures, in violation of the VBV CC&Rs.” FAC ¶¶ 15-17. The FAC also alleges that under Article 1, Section 1 of the VBV CC&Rs an Architectural Control Committee (“Committee”) was created comprised of a single owner from parcels 2-4 to ensure that the purposes and goals of the VBV CC&Rs are upheld, and that under Article 1, Section 3, prior to commencing construction or alteration of any structure or other improvement, the parcel is obligated to submit plans and/or specifications showing “plot layout and all exterior elevations, with materials and colors thereof, and structural design and landscaping” and that only upon approval by “unanimous consent” of the Committee may an owner proceed with construction. It alleges that in early 2019, Defendants commenced construction of their residence without submittal or approval of their plans in violation of the VBV CC&Rs and have continued construction accordingly without having adhered to the VBV CC&Rs. FAC ¶¶ 18-21. It further alleges that Defendants have taken the position that the VBV CC&Rs have been waived and are not enforceable. FAC ¶¶ 22-24.
II. The Demurrers
The basis for the general Demurrer to the declaratory cause of action is Defendants’ contention that as to the reconstruction of their home following the 2017 fires without seeking approval by the Committee, the FAC shows that construction began in early 2019 (FAC ¶ 20) and where only past wrongs are involved, “declaratory relief may be inappropriate.” Demurrer at 4:22-5:10 citing Travers v. Louden (1967) 254 Cal.App.2d 926, Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, and Cardellini v. Casey (1986) 181 Cal.App.3d 389. As to the intent to violate the VBV CC&Rs relating to short-term rentals and other business ventures, Defendants contend that there is only a vague allegation as to the purported intent to violate the VBV CC&Rs (FAC ¶ 17), and declaratory relief is not appropriate when the controversy is not yet ripe. Demurrer at 5:11-6:2 citing Sanctity of Human Life Network v. California Highway Patrol (2003) 105 Cal.App.4th 858.
Defendants also contend that the first cause of action is fatally uncertain because the FAC does not allege “what was said, when it was said, or what actual acts DEFENDANTS are undertaking which are presently, or in the future, violating Article 3, sections 1 and 2.” Demurrer at 5:3-17.
The basis for the general demurrer to the injunctive relief cause of action is Defendants’ contention that under Cal. Civ. Code (“CC”) § 1354[sic] a property owner can only sue to enforce CC&Rs if they are “reasonable.” Defendant contends that the VBV CC&Rs are not reasonable and may not be enforced insofar as they violate CC § 4751, which provides that any CC&Rs “that either effectively prohibits or unreasonably restricts the construction or use of an accessory dwelling unit or junior accessory dwelling unit on a lot zoned for single-family residential use that meets the requirements of Section 65852.2 or 65852.22 of the Government Code, is void and unenforceable.” They also cite Barrett v Dawson (1998) 61Cal.App.4th 1049 and Barrett v. Lipscomb (1987) 194 Cal.App.3d 1527 for the proposition that “[c]ourts have largely found that restrictive covenants which limit business endeavors and familial relations to be void.” Defendants contend that Plaintiffs are therefore statutorily prohibited from enforcing the VBV CC&Rs in a way that restricts their use, enjoyment, construction and living arrangements of their property. See Demurrer at 7:4-9:1.
Defendants also contend that the second cause of action is fatally uncertain because Plaintiffs seek a permanent injunction that Defendants “cease all current violations of any provisions of the VBC CC&Rs” and to “refrain from any future violations of the CC&RS” without specifying what acts are to be permanently enjoined and that the “vague and speculative” request fails to put them on notice of the acts subject to the injunction or to be able respond to the requested relief. Demurrer at Demurrer at 6:18-7:3.
Defendants’ request for judicial notice is GRANTED. Cal. Evid. Code §§ 452(a) (statutory law); 452(d) (filings in this case); 453.
A. Declaratory Relief: Overruled
For a general demurrer to a declaratory relief cause of action, the Court evaluates whether the factual allegations reveal that an actual, ripe controversy exists between the parties. Linda Vista Village San Diego Homeowners Assn., Inc. v. Tecolote Investors, LLC (2015) 234 Cal.App.4th 166, 181. A general demurrer to a cause of action for declaratory relief must be overruled as long as an actual controversy is alleged; the pleader need not establish it is also entitled to a favorable judgment “because the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff’s interest.” Qualified Patients Ass’n v. City of Anaheim (2010) 187 Cal.App.4th 734, 751. The basis for the general demurrer to the declaratory relief cause of action is that one aspect of the alleged controversy is under-ripe and another aspect is overripe. Both of these contentions must be meritorious for the Demurrer to be sustained, as a general demurrer does not lie to only part of a cause of action and if there are sufficient allegations to entitle Plaintiffs to some of the relief requested, a general demurrer (as opposed to a motion to strike) does not lie. Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167 & fn. 9; PH II, Inc. v. Sup. Ct. (1995) 33 Cal.App.4th 1680, 1682-1683.
As to the portion of the declaratory relief claim which relates to the Committee and Defendants’ alleged commencement of construction without compliance with the VBV CC&Rs (Article 1, Section 3), Plaintiffs are correct that none of the cases cited by Defendants stand for the proposition that Plaintiffs’ request for declaratory relief is improper. See Travelers, 254 Cal.App.2d at 931 (“redress for past wrongs may be had in a proper action for declaratory relief,” meaning one where there is also “need for a declaration as to the future conduct of the parties” but finding on summary judgment that it was improper to seek declaratory relief against a tortfeasor without seeking damages or other redress); Baldwin, 79 Cal.App.3d at 407 (holding that declaratory relief cause of action properly dismissed on demurrer where there was “no allegation of a continuing relationship” between the relevant parties and there “does not appears to be any possibility of such a continued relationship” and citing Witkin for the proposition: “Declaratory relief operates prospectively, serving to set controversies at rest. If there is a controversy which calls for a declaration of rights, it is no objection that past wrongs are also to be redressed; but there is no basis for declaratory relief where only past wrongs are involved.”) (emphasis added); Cardellini, 181 Cal.App.3d at 396 (money damages were available for accrued cause of action and there was “no possibility of a future dispute under this agreement.”)
Here, even though Plaintiffs also seek declarations as to past violations, Defendants are alleged to be in the process of construction on their neighboring property and the FAC alleges that Defendants have taken the position that the VBV CC&Rs are “waived.” FAC ¶¶ 23-24. Plaintiffs therefore seek a declaration that they “remain in effect, and are enforceable by and against any owner of the subject three parcels.” FAC ¶ 26.a. (prayer). This alone is sufficient to overcome the Demurrer.
Further, as to the portion of the declaratory relief claim which relates to occupancy and business ventures and Defendants’ alleged expressed intentions to have short term rentals or other business ventures on their property (Article 3, Sections 1 and 2), Plaintiffs are correct that the allegations do not show that Plaintiffs are merely seeking an impermissible advisory opinion, i.e. a suggestion based on a “hypothetical” set of facts. See, e.g. Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573–74 (an “actual controversy” is one “which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts. The judgment must decree, not suggest, what the parties may or may not do.”) (internal citations omitted).
Here, Plaintiffs have specifically alleged that Defendants have expressed an intention to engage in an act Plaintiffs contend would violate the VBV CC&Rs (FAC ¶ 17). A declaratory relief cause of action “may be brought if a probable future controversy exists relating to the legal rights and duties of the parties. [citations] Declaratory relief is an appropriate means to test the enforceability of covenants or servitudes asserted against property. The restriction need not be violated before initiating an action.” Reiner v. Danial (1989) 211 Cal.App.3d 682, 688–89. Defendants’ arguments concerning the injunctive relief cause of action evidence that they do challenge the enforceability of the VBV CC&Rs, thus establishing a probable future controversy. See Demurrer at 7:7-8 (“DEFENDANTS’ general demurrer must be sustained in its entirety because PLAINTIFFS seek permanent injunction to enforce VBV CC&RS which violate [a] statute.”) “It is a settled rule that in an action in which the complaint alleges sufficient facts to show the existence of an actual controversy within the provisions of section 1060 of the Code of Civil Procedure and requests that the respective rights and duties of the parties be adjudged, it is the duty of the court to declare such rights and duties whether or not the facts alleged establish that the plaintiff is entitled to a favorable declaration and that it is error to sustain a demurrer without leave to amend to such a complaint.” Wilson v. Board of Retirement of Los Angeles County Emp. Retirement Ass’n (App. 1957) 156 Cal.App.2d 195, 199-200.
As to the special demurrer for uncertainty, where a demurrer is made upon the grounds that it is uncertain, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers of the complaint. See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809 (disapproved on other grounds in Katzberg v. Regents of Univ. of Calif. (2002) 29 Cal.4th 300, 328, n. 30). Further, a demurrer on the basis of uncertainty is disfavored. Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 (“demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures”).
Here, the only basis Defendants have articulated for why the first cause of action is uncertain is that there are insufficient allegations regarding their expressed intent to violate Article 3, sections 1 and 2 (restricting occupancy and business activities) in FAC ¶ 17. The specifics of what was said and when—which Defendants are equally in a position to know—are not essential to the cause of action for the reasons set forth above and can, in any event, be further clarified in discovery.
B. Injunctive Relief: Overruled
The FAC alleges that Defendants have taken certain actions which purportedly violate provisions of VBV CC&Rs and that Defendants have indicated that they plan to take other actions which purportedly violate other provisions of the VBV CC&Rs, and as Defendants concede, a homeowner can sue to enforce CC&Rs. See CC § 5975 (formerly codified as CC § 1354) (“The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and 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.”) Nevertheless, Defendants contend that the injunctive relief cause of action does not state facts sufficient to constitute a cause of action because the CC&Rs are not “reasonable” in part because they violate CC § 4751.
None of the cases Defendants cite in support of their argument that their general demurrer to the second cause of action should be sustained was decided on demurrer. Rather, each of the cases involves an adjudication as to the appropriateness of a preliminary or final injunction or a final judgment as to the enforceability of CC&Rs. The FAC does not establish, on its face, that Plaintiffs are not entitled to enforce the VBV CC&Rs and as such, Plaintiffs are correct that a demurrer is not the appropriate procedural vehicle for adjudicating Plaintiffs’ right to any or all of the requested injunctive relief (and indeed, all of the requested relief must be barred for a general demurrer to lie).
Recorded CC&Rs are presumed to be reasonable (Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 975) and the general rule is that reasonableness is a factual question. Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 630 (“The determination of whether Tesoro’s CC&R’s and Design Guidelines imposed ‘reasonable’ restrictions was necessarily a question of fact for the jury.”) The Court finds that the determination of the enforceability of the VBV CC&Rs is necessarily a factual question not appropriately resolved on demurrer. The Court need not decide whether CC § 4751 applies (as Plaintiffs contend that it applies only to “planned developments” as defined in CC § 4175, which definition does not encompass the subject parcels), as this relates to only a portion of the cause of action, namely accessory dwellings implicated by VBV CC&Rs Art. 3 § 1. Further, Plaintiffs’ challenge does not seek “to prevent the execution of a valid statute”, as the Defendants suggest (Demurrer at 7:12-13; 8:27-9:1); it challenges Defendants’ conduct as violating the VBC CC&Rs and Defendants are defending their conduct on the basis that it is lawful and/or that the VBV CC&Rs are reasonable and/or enforceable based on CC § 4751.
Last, the second cause of action is not fatally uncertain. As set forth above, the nature of the controversy between the parties is not uncertain. Insofar as the specific relief requested by the second cause of action does not specify the particular acts to be enjoined, the Court finds that the non-specific prayer does not render the cause of action itself uncertain in light of the acts and expressed intentions alleged in the FAC.
Based on the foregoing, Defendants’ demurrers are OVERRULED in their entirety. Defendants shall file their answer within ten (10) days of notice of entry of the order on these demurrers.
Plaintiffs’ counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).