CERTIFIED FOR PARTIAL PUBLICATION
Plaintiff Yan Sui appeals from the judgment dismissing with prejudice his action against defendants Stephen D. Price and 2176 Pacific Homeowners Association after the court sustained without leave to amend defendants' demurrer to plaintiff's complaint. The court ruled the complaint did not state facts sufficient to constitute a cause of action and could not be fixed. We affirm.
Accepting "as true all material allegations of the complaint" (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 929 [30 Cal.Rptr.2d 440, 873 P.2d 613]), we draw the following facts from plaintiff's complaint.
The case involves plaintiff's 1987 Mitsubishi van, which was registered in the name of his wife, Pei-yu Yang. From 1995 to 2003, plaintiff used the van to drive his family, including three young children, to various destinations, including to school, local parks, and vacation spots. Plaintiff also used the van to make deliveries for a printing brokerage business.
In 2003, the van's engine broke down. From 2003 to February 2007, plaintiff kept the inoperable, locked van parked in his exclusive parking space
From 2005 to 2006, Michelle J. Matteau parked her boat in her parking space between units B and C. Her tenants at that time parked their car behind the boat in violation of the homeowners association's CC&R's (covenants, conditions, and restrictions). Matteau's tenants' car blocked plaintiff's car from going in and out of the garage. Plaintiff complained to the then president of the association, Sean Wiggins, and asked Wiggins to have Matteau remove the boat. Matteau removed her boat.
In late 2006, Price, the current president of the homeowners association commenced the process to amend the association's parking rule, assisted by the law firm of Harkins. Price e-mailed the amended parking rule to all the homeowners. The amendment primarily revised two provisions. It made parking in front of a garage permissible, and prohibited disabled, inoperable vehicles. Plaintiff believed Price was exercising personal retaliation against him, but Price denied the allegation.
In about December 2006, Price informed the homeowners that the amended parking rule had been approved by majority vote and was "immediately effective." Plaintiff voiced his opposition and asked to see the voting record. Price claimed plaintiff was ineligible to view the record because he was not a board member.
Defendants' claim that the amended parking rule was "immediately effective" was false, because the amended parking rule had not yet been recorded with the county, as required under the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.), Civil Code section 1355, subdivision (b), cited in Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 82-83 [14 Cal.Rptr.3d 67, 90 P.3d 1223].
In January 2007, Price walked uninvited onto plaintiff's exclusive parking space and placed a warning sticker on the back windshield of the van. Plaintiff walked out and warned Price not to touch plaintiff's property. Price replied, "I am not touching it," and left plaintiff's parking space. The warning on the sticker stated in relevant part, "Your vehicle was in violation of the parking rule and you shall tow it away in X days. If XXX fail to do so, XXX will tow it away."
Plaintiff's children waved protest signs, which said "get a life," at Price and Matteau. His wife asked them to use their energy to make some babies. A police officer came to the scene apparently at Price and Matteau's behest. Plaintiff controlled his anger rather than escalate the confrontation. Price and Matteau used their position with the homeowners association to humiliate plaintiff in front of his children for his inability to protect his personal property.
About two months later, plaintiff's wife received a bill from a collection agency for about $1,700.00. This charge impacted the credit standing of plaintiff and his wife. Their application to refinance the house was denied and the wife's application for a credit card was denied. Their credit report showed the wife had an "open collection account" from May of 2007 of about $2,000.
Recently, plaintiff insisted on seeing the voting records on the parking rule amendment. Price claimed the parking rule was not amended and that no amendment was necessary in order to tow away plaintiff's van.
Defendants intentionally engaged in wrongful and despicable conduct with conscious disregard of plaintiff's rights and with the intention to injure him. Defendants caused injury to plaintiff and his family. Defendants' willful misconduct was intended to retaliate against and to humiliate plaintiff. Defendants' wrongful acts constitute oppression, fraud, or malice under Civil Code section 1572, entitling plaintiff and his family to punitive damages.
Based on these asserted facts, plaintiff filed his complaint on March 15, 2010, against Price, the homeowners association, and Doe defendants, alleging causes of action for fraud, breach of contract, conspiracy to defraud, trespassing, intentional infliction of emotional distress, violation of due process, conversion, libel of character, and declaratory relief. Plaintiff sought compensatory, incidental, and consequential damages of $2,000 and punitive damages of $58,000.
The court issued a written order sustaining the demurrer without leave to amend on grounds the complaint "has not stated facts sufficient to constitute a cause of action, and there is no way to fix the [c]omplaint." Judgment was entered against plaintiff and his action was dismissed.
Standard of Review
"`Because a demurrer both tests the legal sufficiency of the complaint and involves the trial court's discretion, an appellate court employs two separate standards of review on appeal. [Citation.] . . . Appellate courts first review the complaint de novo to determine whether or not the . . . complaint alleges facts sufficient to state a cause of action under any legal theory, [citation], or in other words, to determine whether or not the trial court erroneously sustained the demurrer as a matter of law.'" (Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1279 [84 Cal.Rptr.2d 384] (Filet).) "`A demurrer tests the pleading alone, and not the evidence or the facts alleged.' [Citation.] For that reason, we `assume the truth of the complaint's properly pleaded or implied factual allegations.' [Citation.] We also `consider judicially noticed matters.'" (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315 [64 Cal.Rptr.3d 9].) "Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58] (Blank).) We do not assume the truth of pleaded "`contentions, deductions or conclusions of fact or law.'" (Ibid.) "Because [defendant] was denied leave to amend we construe [the complaint's] allegations liberally `with a view to substantial justice between the parties.'" (CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1530 [282 Cal.Rptr. 80].) "[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 [9 Cal.Rptr.2d 92, 831 P.2d 317].) The plaintiff "bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law" and "must show the complaint alleges facts sufficient to establish every element of [the] cause of action." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43 [96 Cal.Rptr.2d 354].)
"`Second, if a trial court sustains a demurrer without leave to amend, appellate courts determine whether or not the plaintiff could amend the
Plaintiff Failed to State Facts Constituting a Cause of Action for Fraud
Plaintiff Failed to State Facts Constituting a Cause of Action for Breach of Contract
As to the breach of contract cause of action, the complaint alleged that defendants violated the association's CC&R's (a contract between him and the association)
There Is no Cause of Action for Conspiracy to Defraud
Plaintiff's Trespass Cause of Action Is Time-barred
Plaintiff's Intentional Infliction of Emotional Distress Cause of Action is Time-barred
Plaintiff Failed to State Facts Constituting a Cause of Action for Violation of Due Process
Plaintiff's Conversion Cause of Action Is Time-barred
Plaintiff's Cause of Action for Libel of Character Is Time-barred
Plaintiff Failed to State Facts Constituting a Cause of Action for Declaratory Relief
The judgment is affirmed. Defendants shall recover their costs on appeal.
Bedsworth, Acting P. J., and Fybel, J., concurred.