Michael R. Nicolais, et al. v. Nathaniel D. Carey, et al.

Case Number

25CV04747

Case Type

Hearing Date / Time

Wed, 02/04/2026 - 10:00

Nature of Proceedings

Demurrer; Motion to Strike

Tentative Ruling

For Plaintiffs Michael R. Nicolais and Jane L. Nicolais, as Trustees of The Nicolais Family Trust dated 4/2/2015, Gregory and Karen Brody, as Trustees of   The Brody Family Trust, and John L. and Elizabeth N. Bunce: David L. Cousineau, Richard Lloyd, Cappello & Noel LLP

For Defendants Nathaniel D. Carey, Individually, and as Trustee of the Bozenich Family Trust Dated August 10, 1999, and HR Woods LLC: Briana E. McCarthy, William P. Frusetta, McCarthy & Kroes 

For Defendant Hope Ranch Park Homes Association: Matt D. Ober, Alisa E. Sandoval, Jonathan R. Davis, Richardson Ober LLP

RULING:

For the reasons set forth below:

1. The demurrer of Nathaniel D. Carey, Individually, and as Trustee of the Bozenich Family Trust Dated August 10, 1999, and HR Woods LLC, to Plaintiffs’ first amended complaint, is overruled.

2. Nathaniel D. Carey, Individually, and as Trustee of the Bozenich Family Trust Dated August 10, 1999, and HR Woods LLC’s motion to strike portions of Plaintiff’s first amended complaint is denied.

3. Nathaniel D. Carey, Individually, and as Trustee of the Bozenich Family Trust Dated August 10, 1999, and HR Woods LLC shall file and serve their answers to Plaintiffs’ first amended complaint no later than February 18, 2026.

Background

This action commenced on July 31, 2025, by the filing of the original complaint by Plaintiffs Michael R. Nicolais and Jane L. Nicolais, as Trustees of The Nicolais Family Trust dated 4/2/2015, Gregory and Karen Brody, as Trustees of The Brody Family Trust, and John L. and Elizabeth N. Bunce against Defendants Nathaniel D. Carey, as Trustee of the Bozenich Family Trust Dated August 10, 1999 (“Carey”), HR Woods LLC (“HR Woods”) (collectively the “Carey Defendants”), and Hope Ranch Park Homes Association (“Hope Ranch”).

On October 28, 2025, Plaintiffs filed the operative verified first amended complaint (“FAC”) against the same Defendants, but suing Carey individually as well as in his capacity as Trustee of the Bozenich Family Trust. The causes of action are: (1) Declaratory Relief; (2) Quiet Title; (3) Nuisance; (4) Breach of Governing Documents; (5) Enforcement of Governing Documents; (6) Breach of Fiduciary Duty; and (7) Injunctive Relief.

As alleged in the FAC:

This action pertains to a portion of the “Through the Woods Trail” (the “Trail”), that is part of 22 miles of equestrian trails for which Hope Ranch is renowned. (FAC, ¶ 1.) The governing Covenants, Conditions, and Restrictions (“CC&Rs”) explicitly identify the bridle trails as one of the amenities included in Hope Ranch’s common plan. (Ibid.) Each of the Plaintiffs decided to purchase their home in Hope Ranch, and spend significant money, based on the trails. (Ibid.)

The Trail is the primary link between the bridle trails in the northern and southern portions of Hope Ranch, extending along the eastern portion of Las Palmas Drive between approximately Via Bendita and Paloma Drive. (FAC, ¶ 2.) Without the Trail, equestrians would be required to ride either along busy Las Palmas Drive or along the steep hillside on the western side of Las Palmas. (Ibid.) The Trail has existed and been continuously used by Hope Ranch’s owners since at least August 1977, but that ended abruptly on January 17, 2023, when Carey unilaterally blocked access to the portion of the Trail that crosses his property. (Ibid.)

The current Hope Ranch Board of Directors (the “Board”) has allowed Carey to maintain his obstructions, initially under the guise of a non-existent “massive mudslide,” but has allowed the barriers to remain despite there being no evidence of such a condition. (FAC, ¶ 3.) The Board now asserts that it does not have a property interest in the Blocked Trail and that it does not intend to enforce Hope Ranch’s property rights in the Blocked Trail. (Ibid.) The Board has also indicated a desire to move substantive discussions about the Blocked Trail into closed session, thereby depriving Plaintiffs and other owners of any knowledge regarding what rights the Board may give up in violation of the CC&Rs. (Ibid.)

Carey has conveyed the property over which the Blocked Trail passes to HR Woods. (FAC, ¶ 5.)

Additional allegations will be discussed below where relevant to the present demurrer and the motion to strike.

On December 3, 2025, Hope Ranch answered the FAC, admitting some allegations, denying some allegations, and claiming lack of sufficient information to either admit or to deny other allegations. Hope Ranch also asserts 18 affirmative defenses.

On December 1, 2025, the Carey Defendants filed the present demurrer to the FAC’s first cause of action for declaratory relief and second cause of action for quiet title, arguing that they contain a defect or misjoinder of the parties. The Carey Defendants demur to the third (nuisance), fourth (breach of governing documents), fifth (enforcement of governing documents), and seventh causes of action (injunctive relief), arguing that they each fail to state facts sufficient to constitute causes of action. The Carey Defendants additionally demur to the third and fourth causes of action arguing that they are uncertain.

Plaintiffs oppose the demurrer.

On December 1, 2025, the Carey Defendants also filed the present motion to strike 26 portions of the FAC.

Plaintiffs oppose the motion to strike.

Analysis

1. Demurrer

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the Court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

“(a) The Court has no jurisdiction of the subject of the cause of action alleged in the pleading.

“(b) The person who filed the pleading does not have the legal capacity to sue.

“(c) There is another action pending between the same parties on the same cause of action.

“(d) There is a defect or misjoinder of parties.

“(e) The pleading does not state facts sufficient to constitute a cause of action.

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

“(h) No certificate was filed as required by Section 411.35.” (Code Civ. Proc., §   

430.10.)

“[A] Court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the Plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

The Carey Defendants’ demurrer is largely an improper attempt to argue the merits of their case and ask this Court to weigh evidence regarding disputed facts.

Request for Judicial Notice:

The Carey Defendants request that the Court take judicial notice of six documents that they argue supports their demurrer.

“When the ground of demurrer is based on a matter of which the Court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the demurrer, or in the supporting points and authorities for the purpose of invoking such notice, except as the Court may otherwise permit.” (Code Civ. Proc., § 430.70.)

“[J]udicial notice of a document does not extend to the truthfulness of its contents or the interpretation of statements contained therein, if those matters are reasonably disputable. [Citations.] Our Supreme Court noted this limitation in StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 84 Cal.Rptr.2d 843, 976 P.2d 214 (StorMedia), explaining: “ ‘In ruling on a demurrer, a Court may consider facts of which it has taken judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) This includes the existence of a document. When judicial notice is taken of a document, however, the truthfulness and proper interpretation of the document are disputable. [Citation.] . . ..’ ” [Citation.]” (Apple Inc. v. Superior Court (2017) 18 Cal.App.5th 222, 241.)

The Court will take judicial notice of the documents. However, the documents do not assist the Carey Defendants in meeting their burden on demurrer.

“The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the Court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.)

A demurrer searches for defects in the allegations of the pleading. “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)

First Cause of Action for Declaratory Relief and Second Cause of Action for     Quiet Title:

The Carey Defendants argue that there is a defect or misjoinder of parties pursuant to Code of Civil Procedure section 430.10, subdivision (d) “because Plaintiffs failed to name as Defendants each of the owners of record for each of the six other parcels/properties affected by the Trail that is the subject of Plaintiffs’ claim.” (Demurrer, p. 3, ll. 8-20.)

The Carey Defendants’ argument is without merit.

“A demurrer is particularly unsuited to resolving questions of fact regarding the misjoinder of parties because “ ‘a demurrer lies only for defects appearing on the face of the pleadings [and] a Defendant may not make allegations of defect or misjoinder of parties in the demurrer if the pleadings do not disclose the existence of the matter relied on; such objection must be taken by plea or answer.’ ” [Citation.]” (Verizon California Inc. v. Board of Equalization (2014) 230 Cal.App.4th 666, 680.)

“The Plaintiff shall name as Defendants in the action the persons having adverse claims to the title of the Plaintiff against which a determination is sought.” (Code Civ. Proc., § 762.010.)

“In an action under this section [quiet title], the Plaintiff shall name as Defendants the persons having adverse claims that are of record or known to the Plaintiff or reasonably apparent from an inspection of the property.” (Code Civ. Proc., § 762.060, subd. (b).)

Included as allegations encompassed by the first and second causes of action are:

“Plaintiffs contend that the Blocked Trail is a part of the Association’s Common Area as a “ ‘real property interest[] . . . acquired by the Association, by grant, reservation, use, [or] prescription’ ” pursuant to Section 4.01(b) of the CC&Rs or pursuant to Section 4.04 of the CC&Rs. More specifically, based on the reasons for the Trail’s creation and its use over the decades, the Trail, including the Blocked Trail, is a “ ‘Bridle Trail Easement’ ” pursuant to Section 4.01(b)(iii).” (FAC, ¶ 53.)

“Plaintiffs further contend that they have the right to use the Blocked Trail for equestrian purposes under the terms of the CC&Rs, including section 4.02 which gives them an easement over the Common Area and the right to use Bridle Trail Easements for equestrian purposes, and section 11.03 which states that the rights and obligations in the Declaration inure to the Owners’ benefit. Plaintiffs further contend that because the Blocked Trail is part of the Association’s Common Area, CC&R section 4.03(d) prevents any abandonment by the Association through non-use and/or acquiescence, and precludes any extinguishment by Carey Defendants through adverse or hostile acts.” (FAC, ¶ 54.)

“Plaintiffs allege on information and belief that Defendants, or some of them, dispute Plaintiffs’ contentions or seek to restrict the rights of the Association and the Owners to use the Trail, and claim that the Blocked Trail is not Common Area or any type of real property interest owned by the Association.” (FAC, ¶ 56.)

“Plaintiffs allege HR Woods LLC owns the real property known as Assessor Parcel No. 063-131-001, more fully described as “ ‘Parcel One’ ” in the attached Exhibit A and over which the Blocked Trail crosses. Plaintiffs further allege that Carey, individually, owns the adjacent parcel known as Assessor Parcel No. 063-171-014 and more fully described as “ ‘Parcel Two’ ” in the attached Exhibit A. The two parcels form a contiguous piece of real property commonly known and referred to as 4330 Llano Avenue, Santa Barbara, CA 93101.” (FAC, ¶ 62.)

“The Association and Owners’ use and maintenance of the Blocked Trail continued for over forty years until January 2023 when Carey, in his capacity as Trustee of the Bozenich Family Trust erected barriers preventing use of the Blocked Trail. The Blocked Trail thereby became “ ‘Common Area’ ” as defined in the CC&Rs, either as a prescriptive easement, an irrevocable license, or otherwise. Carey, acting individually, and as manager of HR Woods LLC, continued and continues to maintain the barriers preventing use of the Blocked Trail. Plaintiffs have an easement to use all the Common Area including the Blocked Trail. Plaintiffs also have the authority to enforce the Association’s rights to the Blocked Trail pursuant to Section 11.03 of the CC&Rs, which provides that “ ‘The rights and obligations established or affirmed under this Declaration shall inure to the benefit of and bind all Owners . . . and may be enforced by any Owner.’ ” “ (FAC, ¶ 64.)

“Carey and HR Woods LLC claim that they have the right to exclude Owners from the Blocked Trail, that the Association—and thus the Owners—does not hold a real property interest in the Blocked Trail, and that the Blocked Trail is not Common Area.” (FAC, ¶ 65.)

Here, Plaintiffs have not made any allegations that other property owners have adverse claims, and Plaintiffs do not seek any relief against them or their respective properties. There is simply no defect or misjoinder of parties that appears on the face of the FAC.

The Carey Defendants’ demurrer to the first and second causes of action will be overruled.

Third Cause of Action for Nuisance:

The Carey Defendants argue that the third cause of action is subject to general demurrer on the grounds that it fails to state facts sufficient to constitute a cause of action and that it is uncertain.

The Carey Defendants’ argument in support of their demurrer to the third cause of action consists almost entirely of improperly arguing Plaintiffs’ burden of proof and the merits of the case. Again, the Court is not concerned with matters of proof or disputed evidentiary facts at the pleading stage. The relevant inquiry is whether there is a defect that appears on the face of the complaint.

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)

“ ‘The basic concept underlying the law of nuisances is articulated in the ancient maxim sic utere tuo ut alienum non laedas, that is, so use your own as not to injure another’s property.’ ” [Citation.] “ ‘More specifically an action for a private nuisance is designed to redress a substantial and unreasonable invasion of one’s interest in the free use and enjoyment of one’s property.’ ” [Citation.]” (Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 416 (Orange County).)

“ ‘ “[A]ny interest sufficient to be dignified as a property right” ’ will support an action based on a private nuisance . . ..’ ” [Citation.] Nor is a connection to land a generally necessary element. (See Institoris, supra, 210 Cal.App.3d at p. 20 [“ ‘[A] private nuisance will support recovery not simply for a disturbance of land, but also for interference with any interest sufficient to be dignified as a property right.’ ”].) (Orange County, supra, 14 Cal.App.5th at p. 416.)

In addition to the allegations referenced in the background section of this ruling, Plaintiffs allege, as to the third cause of action for private nuisance, that:

“The Association and the Owners have a right to use the Trail for equestrian purposes, and did so continuously between August 1977 and January 2023 when Carey, as Trustee, blocked access to a portion of the Trail.” (FAC, ¶ 69.)

“Carey Defendants deliberately and maliciously installed a chain-link fence that obstructed and continues to obstruct access to the Trail, and thereafter deliberately and maliciously failed to maintain, or permit access to maintain, the Blocked Trail, causing a significant degradation in the condition of the Blocked Trail. Additionally, Carey Defendants’ deliberate and malicious disruptions have prevented maintenance of other portions of the Trail, thereby precipitating their degradation.” (FAC, ¶ 70.)

“Carey Defendants have created and permitted a condition to exist that is an obstruction to the free use of the Trail, thereby interfering with the comfortable enjoyment of the Trail by the Association and its equestrian Owners and/or unlawfully obstructing the customary use of the Trail. Section 5.02 of the CC&Rs expressly forbids such conduct, stating that “ ‘No dangerous, obnoxious or offensive activities shall be carried on in or upon any portion of Hope Ranch, nor shall anything be done which may be or may become an annoyance or a public or private nuisance.’ ” (FAC, ¶ 71.)

“Carey Defendants’ conduct was deliberate, malicious, unreasonable and/or in the alternative negligent.” (FAC, ¶ 72.)

“Carey Defendants’ conduct is substantially interfering with the Owners’ use or enjoyment of the Trail in a manner that a reasonable person would find annoying or disturbing.” (FAC, ¶ 73.)

“As a result of Carey Defendants’ conduct, Plaintiffs have been harmed through the loss of use of the Trail.” (FAC, ¶ 76.)

Here, Plaintiffs have clearly alleged a property right in that they assert an easement. Likewise, Plaintiffs have clearly alleged unreasonable and substantial interference with that property right, as well as resulting harm.

As for the Carey Defendants’ argument that the third cause of action is uncertain:

“ ‘ “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a Defendant cannot reasonably respond.” ’ ” [Citations.] “ ‘ “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” ’ ” [Citations.]” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

The Court does not find any uncertainty as to the third cause of action.

The third cause of action is more than sufficiently pled to overcome demurrer, and the demurrer will be overruled.

              Fourth Cause of Action for Breach of Governing Documents:

The Carey Defendants argue that the fourth cause of action for breach of governing documents fails to state facts sufficient to constitute a cause of action and that it is uncertain.

The argument presented by the Carey Defendants is that the FAC “does not identify any specific provision of the Association’s Governing Documents that Defendants purportedly breached.” (Demurrer, p. 19, 24-25.) The Carey Defendants argue that this failure renders the cause of action deficient. The Carey Defendants further argue that the fourth cause of action is contradicted by other factual allegations of the FAC.

Central to this cause of action, as well as others, is the classification of Hope Ranch. Hope Ranch is a planned development, and therefore a common interest development. (FAC, ¶ 20, & Exh. B, ¶¶ E, 3.01.)

“ “ ‘Common interest development’ ” means any of the following:

              “(a) A community apartment project.

              “(b) A condominium project.

              “(c) A planned development.

              “(d) A stock cooperative.” (Civ. Code, § 4100.)

As applied to the CC&Rs for a common interest development:

“(a) 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.

“(b) A governing document other than the declaration may be enforced by the association against an owner of a separate interest or by an owner of a separate interest against the association.

“(c) In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (Civ. Code, § 5975, italics added.)

“The same rules that apply to interpretation of contracts apply to the interpretation of CC&R’s.” (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1377.)

As noted above, the CC&Rs are attached as an exhibit to the FAC. Not only are the CC&Rs attached as an exhibit, the FAC itself describes the terms and legal effect of the CC&Rs. There can be no viable argument that the terms of contract are not set forth in the FAC.

Despite the argument of the Carey Defendants to the contrary, Plaintiffs identify several specific provisions of the CC&Rs that they allege were breached, including:

“Hope Ranch is, and at all times herein mentioned was, a “ ‘planned development’ ” subject to California’s Davis-Stirling Act. Hope Ranch adopted the Second Amended and Restated Declaration of Covenants, Conditions and Restrictions of Hope Ranch in 1995, and recorded it in the Official Record of Santa Barbara County as Instrument No. 95-045039 (“ ‘CC&Rs’ ” or “ ‘Declaration’ ”). The Declaration has not been amended since 1995. A copy of the CC&Rs is attached hereto as Exhibit B. The Declaration refers to the people who own property in Hope Ranch interchangeably as “ ‘Owners’ ” or “ ‘Members.’ ” (See Ex. B at p.4, sections 1.21

[defining Owner] and 1.17 [defining Member as “ ‘An Owner as defined in Section 1.21.’ ”].)” (FAC, ¶ 20.)

“The Declaration also makes clear that the bridle trails, whether acquired as easements or otherwise, are interests in property held by Hope Ranch. Section 4.01(b) explains that the “ ‘Common Area’ ” includes “ ‘All other property interests . . . acquired by the Association, by grant, reservation, use, [or] prescription . . . [which] shall be collectively referred to as ‘ “Common Area Easements.” ’ ” (Id. at p. 8.) Section 4.04 further provides that “ ‘Additional Common Area [beyond that described in Section 4.02] may be acquired’ ” by the Association. (Id. at p.11.) Bridle trails are explicitly included within the definition of Common Area Easements: “ ‘Common Area Easements are categorized as follows: . . . (iii) Easements and rights-of-way granted to or otherwise acquired by the Association or reserved for its benefit for use as bridle trails are hereinafter referred to as ‘ “Bridle Trail Easements.” ’ ” (Id. at p.9, section 4.01(b)(iii), emphasis added.) (FAC, ¶ 22.)

“The Declaration then gives each Owner an easement over any area of the Association that falls within the definition of “ ‘Common Area,’ ” e.g., the bridle trails. (See id. at p. 9, section 4.02 [“ ‘Each Lot is hereby declared to have an easement over the Common Area for the benefit of the Owner, members of the Owner’s family, guests and invitees for uses and purposes set forth below.’ ”].) The “ ‘uses and purposes” ” afforded to members for use of Bridle Trail Easements is limited to equestrian purposes. (Id. at p.10, section 4.02(c) [“ ‘Bridle Trail Easements shall be for equestrian purposes.’ ”].) (FAC, ¶ 23.)

“The Declaration requires that the Association receive approval of a majority of the Voting Power of the Association before abandoning any rights it has in Common Areas. (Id. at p. 10, Section 4.02(e)(iv) [the Association may “ ‘abandon any easement or right of way . . . following approval by a majority of the Voting Power of the Association….’ ”].)” (FAC, ¶ 24.)

“Carey Defendants have created and permitted a condition to exist that is an obstruction to the free use of the Trail, thereby interfering with the comfortable enjoyment of the Trail by the Association and its equestrian Owners and/or unlawfully obstructing the customary use of the Trail. Section 5.02 of the CC&Rs expressly forbids such conduct, stating that “ ‘No dangerous, obnoxious or offensive activities shall be carried on in or upon any portion of Hope Ranch, nor shall anything be done which may be or may become an annoyance or a public or private nuisance.’ ” ” (FAC, ¶ 71.)

Quite clearly, Plaintiffs are alleging that the Defendants breached the sections of the CC&Rs referenced.

Further, Plaintiffs allege that they “did all things that were required of them to continue having the right to enjoy and use the Trail and the Blocked Trail.” (FAC, ¶ 81.)

Damages resulting from the alleged breach are set forth in numerous sections of the FAC, including:

“As a result of Carey Defendants’ acts, Plaintiffs have been harmed through the loss of use of the Trail. Carey Defendants’ conduct was a substantial factor in causing this harm. Plaintiffs are entitled to damages for their loss of full use of the Trail from the date Carey erected the obstructions, including for each day Carey Defendants maintained the obstructions in place, until the date the obstructions are removed, an amount to be determined at trial.” (FAC, ¶ 83.)

Again, as to the Carey Defendants’ argument that the cause of action is uncertain: it is not. There are more than sufficient facts pled to apprise the Carey Defendants, and all Defendants for that matter, of the allegations against them.

The demurrer to the fourth cause of action will be overruled.

              Fifth Cause of Action for Enforcement of Governing Documents

The Carey Defendants argue that the fifth cause of action for enforcement of governing documents fails because it is entirely derivative of the “defective” third cause of action for private nuisance and the fourth cause of action for breach of governing documents.

No independent argument is set forth in support of the demurrer to the fifth cause of action other than a claim that the cause of action fails because Plaintiff’s nuisance cause of action and breach of governing documents cause of action fail. Because this is not the case, and the Court is overruling the demurrer to the referenced prior causes of action, the demurrer to the fifth cause of action will likewise be overruled.

              Seventh Cause of Action for Injunctive Relief

The Carey Defendants argue that the seventh cause of action for injunctive relief fails because it constitutes a remedy rather than a stand-alone cause of action and that it is duplicative.

The Carey Defendants are correct: “ ‘Injunctive relief is a remedy, not a cause of action. [Citations.] A cause of action must exist before a Court may grant a request for injunctive relief.’ ” [Citations.]” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734.) The Carey Defendants are also correct that the action for injunctive relief is duplicative. Plaintiff’s request injunctive relief as a remedy for their first cause of action (FAC, ¶ 59, Prayer for Damages ¶¶ 3, 4.)

However:

“The Court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said Court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.” (Code Civ. Proc., § 475.)

Labeling a requested remedy for injunctive relief as a “cause of action” does not affect any rights of the parties. While it may be superfluous, it does nothing to affect the nature of the FAC or the potential remedies of the parties. The request is sufficiently tied to the first cause of action and will be viewed as a requested remedy rather than as a stand-alone cause of action. As such, the demurrer to the seventh cause of action will be overruled.

2. Motion to Strike

“The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

The Carey Defendants seek to strike the following portions of the FAC:

1.             Paragraph 3, page 3, line 2: “unlawful”;
2.             Paragraph 3, page 3, lines 2-4: “Initially, the Board allowed Carey to     maintain the barriers under the guise of a non-existent “massive      mudslide,” but has allowed the barriers to remain despite there being      no evidence of such condition”;
3.             Paragraph 4, page 3, line 16: “unlawful”;
4.             Paragraph 16, page 5, lines 2012: Paragraph 16 in its entirety;
5.             Paragraph 37, page 10, lines 27-28: “deliberate, willful, oppressive and             malicious act”;
6.             Paragraph 38, page 11, line 4: “deliberate and calculated hostile act,      with the specific intent of depriving and extinguishing”;
7.             Paragraph 40, page 11, line 14-15: “desire to deprive Owners of access to this Common Area”;
8.             Paragraph 40, page 11, lines 9-15: Paragraph 40 in its entirety;
9.             Paragraph 42, page 11, lines 23-28, page 12, lines 1-2: Paragraph 42 in             its entirety;
10. Paragraph 43, page 12, lines 10-11: “ . . . even though the issues-            access and maintenance-are completely unrelated”;
11. Paragraph 45, page 12, lines 21-28, page 13, lines 1-9: Paragraph 45 in             its entirety;
12. Paragraph 46, page 13, lines 10-22: Paragraph 46 in its entirety;
13. Paragraph 47, page 13, lines 23-28, page 14, line 1: Paragraph 47 in its             entirety;
14. Paragraph 48, page 14, lines 2-6: Paragraph 48 in its entirety;
15. Paragraph 49, page 14, lines 7-12: Paragraph 49 in its entirety;
16. Paragraph 70, page 18, line 11: “deliberately and maliciously”;
17. Paragraph 70, page 18, lines 12-13: “deliberately and maliciously”;
18. Paragraph 70, page 18, line 15: “deliberate and malicious”;
19. Paragraph 71, page 18, line 19: “and/or unlawfully”;
20. Paragraph 72, page 18, line 24: “deliberate, malicious, unreasonable      and/or”;
21. Paragraph 77, page 19, lines 17-18: “deliberately, willfully,           oppressively and maliciously”;
22. Paragraph 77, page 19, lines 22-23: “Further demonstrating Carey             Defendants’ malicious conduct”;
23. Paragraph 77, page 19, lines 22-25: “Further demonstrating Carey’s      malicious conduct, he engaged in ‘self-help’ rather than engage in      meaningful conversations about any legitimate concerns he may have    and, to the extent that he had any.”;
24. Paragraph 77, page 19, lines 24-25: “Plaintiffs are therefore entitled to punitive damages against Carey Defendants”;
25. Paragraph 88, page 21, line 21: “deliberately and maliciously”; and
26. Paragraph of Prayer for punitive damages on the Third and Sixth          Causes of Action, page 26, line 16: “Punitive damages”.

As with the demurrer, the motion to strike is largely an attempt by the Carey Defendants to argue the merits of their case and have the Court weigh conflicting evidence. As with the demurrer, the motion to strike is not an appropriate mechanism to argue the merits of an action. The portions of the complaint that the Carey Defendants seek to have stricken as “false,” will not be stricken because it is not at all evident from the face of the FAC that the allegations are, in fact, false.

Many of the portions of the complaint that the Carey Defendants seek to have stricken, such as “deliberately,” “willfully,” and “unreasonable,” are simply allegations regarding Defendants’ state of mind, or a characterization of the conduct as wrongful. Such terms are not subject to demurrer when there are sufficient facts to support the allegations, such as there are here. (see Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.) The portions of the FAC that contain allegations regarding Defendants’ states of mind will not be stricken.

The allegations contained in paragraph 42, that the Carey Defendants claim violate the mediation privilege, will likewise not be stricken from the FAC. Plaintiffs argue that the allegations relate to events that occurred after mediation and that those events were made public by Hope Ranch. There is nothing that appears on the face of the FAC that would allow this Court to strike the allegations at the pleading stage.

Finally, as to what appears to be the primary focus of the motion to strike, the Carey Defendants seek to strike all allegations that pertain to punitive damages. The punitive damages allegations, and prayer for relief, are tied to the third cause of action for private nuisance and the sixth cause of action for breach of fiduciary duty.

“A nuisance may be either a negligent or an intentional tort. If the latter, then exemplary damages are recoverable [Citations]. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.) Clearly, Plaintiffs allege that Defendants acted intentionally.

Likewise, if a Plaintiff proves, by clear and convincing evidence, that a Defendant has been guilty of oppression, fraud, or malice, that Plaintiff may recover punitive damages for breach of fiduciary duty. (see Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal.App.4th 1042, 1050.)

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the Defendant has been guilty of oppression, fraud, or malice, the Plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the Defendant.” (Civ. Code, § 3294, subd. (a).)

“As used in this section, the following definitions shall apply:

“(1) ‘Malice’ means conduct which is intended by the Defendant to cause injury to the Plaintiff or despicable conduct which is carried on by the Defendant with a willful and conscious disregard of the rights or safety of others.

“(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

“(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the Defendant with the intention on the part of the Defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c).)

Reading the FAC as a whole, there are more than sufficient allegations that, if proven, could lead a reasonable trier of fact to conclude that the Carey Defendants acted with the requisite malice to support a claim for punitive damages. Plaintiffs have supported their prayer for punitive damages with specific facts

The motion to strike will be denied in its entirety.