Filed 6/19/13 W&W Del Lago v. Rancho Del Lago HOA CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



W&W DEL LAGO, LLC, et al.,                                          D060990

         Plaintiffs and Appellants,

         v.                                                         (Super. Ct. No.
                                                                     37-2010-00101941-CU-OR-CTL)
RANCHO DEL LAGO HOMEOWNER'S
ASSOCIATION,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Joel M.

Pressman, Judge. Affirmed.

         Fleming & Fell, George E. Fleming, Bibianne U. Fell and Tracey L. Angelopoulos

for Plaintiffs and Appellants.

         Kulik, Gottesman & Siegel, Leonard Siegel, Thomas M. Ware II and David A.

Bernardoni for Defendant and Respondent.

         W&W Del Lago, LLC, Stanley Westreich, and Ruth Westreich (collectively

Plaintiffs) appeal a judgment in favor of defendant Rancho Del Lago Homeowner's

Association (Defendant) after the trial court sustained Defendant's demurrer to Plaintiffs'
complaint. Plaintiffs' complaint alleged causes of action against Defendant for

negligence, negligent misrepresentation or omission, breach of contract, and

indemnity/contribution. On appeal, Plaintiffs contend the trial court erred by concluding

their complaint did not state causes of action against Defendant. Plaintiffs assert the trial

court erred by concluding: (1) Defendant did not owe them any duty of care in reviewing

engineering plans they submitted for development of their property; and (2) they did not

state causes of action for breach of contract, negligent misrepresentation or omission, and

equitable indemnity.

                   FACTUAL AND PROCEDURAL BACKGROUND

       For purposes of this opinion, we consider all properly pleaded material facts in

Plaintiffs' complaint as admitted by Defendant. (Aubry v. Tri-City Hospital Dist. (1992)

2 Cal.4th 962, 966-967 (Aubry).) Our summary of the factual background is based on the

material facts properly pleaded in that complaint.

       In June 2007, Plaintiffs purchased lot 42 in the common interest development of

Rancho Del Lago in Rancho Santa Fe, California. W&W Del Lago, LLC is the record

owner of that lot and Stanley and Ruth Westreich are the sole members of that limited

liability company. Rancho Del Lago is subject to a first amended and restated

declaration of restrictions (CC&Rs) adopted by Defendant's members. Defendant

manages that development. Pursuant to section 7.2 of the CC&Rs, no building or other

improvement may be constructed on any lot unless the property owner first submits plans

and specifications for that improvement and obtains approval in writing of Defendant's


                                              2
board or art jury. Pursuant to section 7.3 of the CC&Rs, the owner must submit to the

board or art jury complete plans and specifications for any proposed improvement "for

approval as to quality of workmanship and materials, harmony of height, location, and

external design with existing structures, and as to location in relation to surrounding

structures, topography, and finish grade elevation."

       Plaintiffs retained San Dieguito Engineering, Inc. (SDE) to provide them with a

tentative parcel map, survey, and preliminary grading plan for proposed construction on

lot 42. Those plans showed the elevation for Plaintiffs' proposed pad was 389 feet and

the elevation of the existing adjacent Feinberg residence was 407 feet, resulting in a

height differential of 18 feet between the neighboring pads. However, in calculating

those elevations, SDE used a false and inaccurate benchmark, resulting in elevations

shown on Plaintiffs' plans being seven feet lower than their actual elevations. The actual

elevation of Plaintiffs' proposed pad was 396 feet.

       In October 2007, Plaintiffs retained Coffey Engineering, Inc. (CE) to assume

SDE's duties and responsibilities. CE prepared a final preliminary grading plan, which

was based on SDE's false and inaccurate benchmark and therefore showed elevations for

Plaintiffs' proposed pad and the existing Feinberg pad seven feet lower than their actual

elevations. Plaintiffs submitted to Defendant for preliminary approval a site development

plan, site sections, and a topographic survey reflecting elevations on lots 42, 27, and 33,

based on the assumed elevation benchmark originally established by SDE. Pursuant to

the CC&Rs, Defendant's art jury considered Plaintiffs' development plans. Unbeknownst


                                             3
to Plaintiffs, in November the art jury reviewed a topographical plan unrelated to

Plaintiffs' proposed development that showed the elevation of the Feinberg pad to be 414

feet, which was seven feet higher than shown on the plans submitted by Plaintiffs. Based

on its review of those plans, the art jury determined the height differential between

Plaintiffs' proposed pad at the elevation certified by their engineers and the existing

Feinberg pad was 25 feet. However, the actual elevation of Plaintiffs' proposed pad was

seven feet higher than shown on Plaintiffs' plans.

       In May 2008, the art jury asked Plaintiffs to erect story poles on their property to

reflect the height and general exterior dimensions of their proposed structure. On June

12, the art jury viewed the story poles erected by Plaintiffs, but did not view them from

surrounding properties. In a letter to Plaintiffs, the art jury conveyed its approval of the

story poles, stating:

           "The story poles were reviewed and approved with the following
           exception, by three Art Jury members. [¶] 1. The studio-garage-
           staff quarters is to be re-designed to one story in height with the staff
           quarter portion relocated to a ground floor elevation. [¶] Prior to
           approval, the Art Jury requests architectural working drawings,
           equivalent to the drawings submitted to the [C]ounty, including the
           changes made to the staff quarters. [¶] The grading work may
           proceed at this time."

Plaintiffs then proceeded to grade the property and construct their home in accordance

with their plans. In October 2008, CE provided Defendant with a letter certifying that the

actual elevations of the pads and slopes for Plaintiffs' development were in conformance

with the (inaccurate) plans submitted by Plaintiffs (e.g., that the surveyed elevation of the



                                              4
pad for the northeast wing was 388.86 feet as compared to the plan's elevation of 388.8

feet).

         In March 2009, Jeffrey Feinberg, Stacey Woolf-Feinberg, and the Feinberg Family

Trust (Feinbergs) filed an action against Plaintiffs to recover damages arising out of

obstruction of their view by Plaintiffs' construction on lot 42. Recognizing their plans

were defective and not approved as presented, Plaintiffs settled the lawsuit by paying the

Feinbergs $210,000 and agreeing to remove the home under construction on lot 42.

         In 2010, Plaintiffs filed the instant action against SDE, CE, and Defendant. In

their first amended complaint, Plaintiffs alleged a cause of action against Defendant for

negligence. Defendant demurred to the complaint, arguing it did not owe Plaintiffs a

duty of care. The trial court sustained the demurrer with leave for Plaintiffs to amend

their complaint.

         Plaintiffs filed their operative second amended complaint, alleging causes of

action against Defendant for negligence, negligent misrepresentation or omission, breach

of contract, and indemnity/contribution. That complaint alleged that Defendant

recognized there was a uniform variance of seven feet in all elevations between the plans

for lot 33 (the Feinberg pad) and those plans submitted by Plaintiffs for lot 42, but

nevertheless did not seek any explanation for that variance. Defendants demurred to the

second amended complaint, arguing it did not owe Plaintiffs a duty of care. The trial

court sustained the demurrer without leave to amend, finding the duties Defendant owed

Plaintiffs were limited to those set forth in its governing documents (e.g., the CC&Rs),


                                              5
the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.)1 and

Corporations Code section 7110 et seq. The court stated: "Nowhere in [Defendant's]

governing documents, the Davis-Stirling Common Interest Development Act or the

Corporations Code is there any obligation imposed on the Board of Directors or a

volunteer Art Jury to insure the homeowner for errors in plans submitted to a

governmental entity and certified by the member's own licensed engineer. [Citation.] [¶]

As such the Court finds [Defendant] cannot be held liable for negligence, negligent

misrepresentation/omission, breach of contract, and/or indemnity/contribution as set forth

in the second amended complaint." Furthermore, because Plaintiffs had not shown an

ability to amend their complaint to state viable claims against Defendant, the court

sustained the demurrer without leave for Plaintiffs to amend their complaint. On

September 6, 2011, the court entered a judgment dismissing Plaintiffs' action against

Defendant. Plaintiffs timely filed a notice of appeal.

                                      DISCUSSION

                                             I

                              Demurrer Standard of Review

       "On appeal from a judgment dismissing an action after sustaining a demurrer

without leave to amend, the standard of review is well settled. The reviewing court gives

the complaint a reasonable interpretation, and treats the demurrer as admitting all

material facts properly pleaded. [Citations.] The court does not, however, assume the


1      All further statutory references are to the Civil Code unless otherwise specified.
                                             6
truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be

affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]'

[Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff

has stated a cause of action under any possible legal theory. [Citation.] And it is an

abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows

there is a reasonable possibility any defect identified by the defendant can be cured by

amendment." (Aubry, supra, 2 Cal.4th at pp. 966-967.)

                                              II

                                Negligence Cause of Action

       Plaintiffs contend their second amended complaint stated a cause of action against

Defendant for negligence in approving their plans for construction on lot 42.

                                              A

       The elements of a cause of action for negligence are: (1) a legal duty to use due

care; (2) a breach of that legal duty; and (3) the breach is a proximate or legal cause of

the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) "The

threshold element of a cause of action for negligence is the existence of a duty to use due

care toward an interest of another that enjoys legal protection against unintentional

invasion." (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) "The existence of a

duty is a question of law for the court. [Citations.] Accordingly, we determine de novo

the existence and scope of the duty owed by [a defendant to a plaintiff]." (Ann M. v.

Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) "Some factors that courts


                                              7
consider in determining the existence and scope of a duty in a particular case are: '[T]he

foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered

injury, the closeness of the connection between the defendant's conduct and the injury

suffered, the moral blame attached to the defendant's conduct, the policy of preventing

future harm, the extent of the burden to the defendant and consequences to the

community of imposing a duty to exercise care with resulting liability for breach, and the

availability, cost, and prevalence of insurance for the risk involved.' (Rowland v.

Christian [(1968) 69 Cal.2d 108, 113].)" (Id. at p. 675, fn. 5.) To state a viable cause of

action for negligence, "the complaint must allege facts showing the existence of a legal

duty of care." (Roy Supply, Inc. v. Wells Fargo Bank (1995) 39 Cal.App.4th 1051, 1076.)

                                               B

       Based on our independent review of the second amended complaint, we conclude

Plaintiffs have not stated a cause of action for negligence because the alleged facts do not

show Defendant owed them a legal duty of care in the circumstances of this case. In

general, "[t]he duties and powers of a homeowners association are controlled both by

statute and by the association's governing documents. The primary governing document

of the association is the [CC&Rs] . . . . [¶] . . . [¶] The statutory duties of homeowners

associations are set forth in the Davis-Stirling Common Interest Development Act (Civ.

Code, § 1350 et seq.) and the Nonprofit Mutual Benefit Corporation Law (Corp. Code,

§ 7110 et seq.)." (Ostayan v. Nordhoff Townhomes Homeowners Assn., Inc. (2003) 110

Cal.App.4th 120, 127.) However, neither the CC&Rs nor those applicable statutes


                                               8
contain any provision imposing a legal duty on Defendant to verify the accuracy of

development plans submitted by Plaintiffs or any other member of the homeowners

association.

       If a member of Defendant seeks to develop his or her property, section 7.3 of the

CC&Rs requires that member to submit to the board or art jury "[c]omplete plans and

specifications showing the nature, kind, shape, color, size, height, materials to be used

and location of any proposed improvements, alterations or landscaping . . . for approval

as to quality of workmanship and materials, harmony of height, location, and external

design with existing structures, and as to location in relation to surrounding structures,

topography, and finish grade elevation." (Italics added.) That section imposes a duty on

the member, not Defendant. Plaintiffs presumably breached that duty when they

submitted development plans containing inaccurate elevation measurements. Likewise,

as Defendant asserts, Plaintiffs presumably breached their duty to comply with

governmental laws and regulations pursuant to section 7.14 of the CC&Rs when they

submitted to the county grading plans containing inaccurate elevation measurements.

       In approving or disapproving a member's proposed development, the CC&Rs

require the board or art jury to act in good faith and not arbitrarily. Section 3.7 of the

CC&Rs provide: "All Directors and members of Committees appointed by the Directors

shall perform their duties in good faith, in a manner which is not arbitrary, capricious, or

discriminatory, and which is in accordance with procedures which are fair and

reasonable." Contrary to Plaintiffs' apparent assertion, the CC&Rs' requirement that the


                                              9
procedures for approving or disapproving a proposed development of property be "fair

and reasonable" does not impose on the board or art jury a duty to act reasonably in

reviewing and approving or disapproving a particular development proposal (e.g.,

Plaintiffs' proposed development). Rather, the CC&Rs require only that the established

procedures for approving or disapproving all development proposals be fair and

reasonable. Plaintiffs do not allege Defendant's established procedures, as set forth in

section 7.3 of the CC&Rs, are not fair and reasonable.

       Plaintiffs do not allege the art jury acted arbitrarily or not in good faith in

approving their development proposal. Instead, they allege the art jury acted

unreasonably in reviewing their development proposal because it did not verify the

accuracy of the elevation measurements set forth in their engineer's plans (e.g., by

noticing and reconciling the elevation discrepancy between Plaintiffs' plans and existing

plans for the Feinberg pad and by viewing Plaintiffs' story poles from neighboring

properties). However, the CC&Rs do not impose a duty of care on Defendant to act

reasonably in reviewing, and to verify elevation and other measurements set forth in,

plans for development proposals submitted by members.

       Plaintiffs also cite section 7.5(d) of the CC&Rs as a basis for Defendant's alleged

duty owed to them. However, that section merely provides that the art jury "shall meet as

often as it deems necessary to properly carry out the obligations imposed upon it." It

does not set forth any duty of reasonable care Defendant allegedly breached in the

circumstances of this case.


                                              10
       Likewise, the pertinent statutes do not impose such a duty on Defendant. Section

1378 provides:

          "(a) This section applies if an association's governing documents
          require association approval before an owner of a separate interest
          may make a physical change to the owner's separate interest or to the
          common area. In reviewing and approving or disapproving a
          proposed change, the association shall satisfy the following
          requirements:

          "(1) The association shall provide a fair, reasonable, and expeditious
          procedure for making its decision. The procedure shall be included
          in the association's governing documents. The procedure shall
          provide for prompt deadlines. The procedure shall state the
          maximum time for response to an application or a request for
          reconsideration by the board of directors.

          "(2) A decision on a proposed change shall be made in good faith
          and may not be unreasonable, arbitrary, or capricious."

Section 1378, subdivision (a)(1), pertains to the procedures established by an association

for approving or disapproving development proposals. Plaintiffs do not allege

Defendant's established procedures, as set forth in section 7.3 of the CC&Rs, are not fair

and reasonable. Neither section 1378 nor section 7.3 of the CC&Rs precluded

Defendant's art jury from reviewing documents other than those submitted by Plaintiffs

(e.g., plans for the Feinberg property). Section 1378, subdivision (a)(1), does not require

that all specific procedures for reviewing development plans be set forth in the CC&Rs,

and it does not limit an association to consideration only of documents submitted by the

member applicant. Furthermore, neither section 1378 nor section 7.3 of the CC&Rs

required the art jury to inform Plaintiffs it was reviewing other documents (e.g., plans for

the Feinberg property) in approving or disapproving their proposed development.

                                             11
       Section 1378, subdivision (a)(2), pertains to the decision on a development

proposal. Plaintiffs do not allege Defendant's decision to approve its development

proposal was unreasonable, arbitrary, or capricious. Instead, they allege the art jury acted

unreasonably in reviewing their development proposal because it did not verify the

accuracy of the elevation measurements set forth in their engineer's plans (e.g., by

noticing and reconciling the elevation discrepancy between Plaintiffs' plans and existing

plans for the Feinberg pad and by viewing Plaintiffs' story poles from neighboring

properties). However, section 1378 does not impose a duty of care on Defendant to act

reasonably in reviewing, and to verify elevation and other measurements set forth in,

plans for development proposals submitted by members.

       Because Plaintiffs did not allege facts showing Defendant owed them a duty of

care under the CC&Rs and applicable statutes in the circumstances of this case, they did

not state a cause of action against Defendant for negligence. (Roy Supply, Inc. v. Wells

Fargo Bank, supra, 39 Cal.App.4th at p. 1076; Ostayan v. Nordhoff Townhomes

Homeowners Assn., Inc., supra, 110 Cal.App.4th at p. 127.) Alternatively stated,

Plaintiffs have not stated a negligence cause of action because under the CC&Rs and

applicable statutes Defendant did not owe them a duty of care to act reasonably in

reviewing their development proposal to verify the accuracy of the elevation

measurements set forth in their engineer's plans (e.g., by noticing and reconciling the




                                            12
elevation discrepancy between Plaintiffs' plans and existing plans for the Feinberg pad

and by viewing Plaintiffs' story poles from neighboring properties).2

       Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642 (Cohen), cited by

Plaintiffs, does not persuade us to reach a contrary conclusion. In Cohen, the

homeowners association approved construction of a neighbor's proposed solid side yard

fence that would block the Cohens' view. (Id. at pp. 646-647.) However, the

association's CC&Rs expressly provided that solid fences could not be constructed in side

yards with a view. (Ibid.) The Cohens filed an action against the association and their

neighbors, alleging the association's approval of the solid fence breached the CC&Rs and

was negligent. (Id. at p. 647.) The trial court sustained the association's demurrer to the

complaint. (Ibid.) On appeal, Cohen carefully phrased the issue, stating:

          "[D]id the complaint allege facts sufficient to establish that the
          Association owed a duty to plaintiffs and that the former breached
          that duty, thereby entitling plaintiffs to some or all of the remedies
          sought? Such a determination must be based on the terms and
          conditions of the [CC&Rs]." (Cohen, supra, 142 Cal.App.3d at
          p. 647, italics added.)

Cohen concluded the CC&Rs' express provisions "create[d] an affirmative duty on the

part of the Association to protect individual homeowners affected by the improvement."

(Cohen, supra, 142 Cal.App.3d at p. 653.) It stated: "[P]laintiffs' suit here turns on the

good faith and lack of arbitrariness of the Committee's approval, assessed in the light of

2      Because we dispose of Plaintiffs' negligence cause of action based on the absence
of a duty of care, we do not address Defendant's alternative argument that the exculpatory
clauses set forth in the CC&Rs preclude its liability for breach of any duty of care owed
to Plaintiffs.

                                             13
all of the provisions of the [CC&Rs]. It appears from the record that the fence in

question was not in conformity with the provisions of the [CC&Rs] . . . ." (Id. at p. 654.)

Accordingly, Cohen reversed the judgment, finding the trial court erred by sustaining the

demurrer. (Id. at pp. 654, 656.)

       Because the CC&Rs in this case do not contain any express provisions requiring

Defendant to protect an individual homeowner's view, Cohen is factually inapposite and

does not persuade us Defendant owed Plaintiffs a duty of care in the circumstances of this

case. As discussed above, Plaintiffs have not sufficiently alleged Defendant violated any

provisions of the CC&Rs. Furthermore, as Defendant notes, Cohen dealt with the

association's approval of a solid fence that affected a neighbor's protected views. In this

case, Plaintiffs allege Defendant negligently approved their own development plans,

resulting in damage to them. Neither Cohen nor any of the other cases cited by Plaintiffs

hold homeowner associations owe duties to member applicants to verify the accuracy of

their own plans for proposed development of their properties. We decline to expand

Cohen's holding to find Defendant owed Plaintiffs a duty of care in the circumstances in

this case.

       Finally, to the extent Plaintiffs argue Defendant owes them a common law duty of

care not based on the CC&Rs or applicable statutes, we reject that argument. Citing

Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 613, Plaintiffs argue the "Good

Samaritan" rule should apply here. They argue that even though Defendant did not have

a duty initially to act reasonably in approving their proposed development, once


                                             14
Defendant voluntarily undertook to act it owed them a duty to act reasonably. However,

Plaintiffs' conclusory argument does not persuade us this common law rule should be

extended to impose a duty on Defendant in the circumstances of this case. Although

Plaintiffs do not address the Rowland factors for determining whether a common law

duty of care should be imposed, our consideration of those factors supports our

conclusion that Defendant did not owe Plaintiffs a duty of care in the circumstances of

this case. (People v. Rowland, supra, 69 Cal.2d at p. 113.)

                                              III

              Cause of Action for Negligent Misrepresentation or Omission

       Plaintiffs contend the trial court erred by concluding their second amended

complaint did not state a cause of action for negligent misrepresentation or omission.

                                              A

       The elements of a cause of action for negligent misrepresentation are: (1) a

misrepresentation of a past or existing material fact; (2) without reasonable grounds for

believing it to be true; (3) with an intent to induce another's reliance on the

misrepresented fact; (4) ignorance of the truth and justifiable reliance thereon by the

party to whom the misrepresentation was directed; and (5) damages. (Fox v. Pollack

(1986) 181 Cal.App.3d 954, 962.) The misrepresentation must be express (or "positive")

and not implied. (Wilson v. Century 21 Great Western Realty (1993) 15 Cal.App.4th

298, 306 (Wilson); Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 304

(Huber); Yanase v. Automobile Club of So. Cal. (1989) 212 Cal.App.3d 468, 472-473


                                              15
(Yanase); Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 1082-1083

(Weissich).)

       Plaintiffs' complaint set forth only one purported misrepresentation of fact by

Defendant, alleging: "On or about June 12, 2008, [Defendant] represented to Plaintiffs

that the height reflected by their story poles and height differential of 18 feet in the

Plaintiffs' plans were approved." However, as Defendant asserts, that conclusory

allegation is factually inadequate to state a cause of action for negligent

misrepresentation. Plaintiffs' complaint refers to "Exhibit 6," the June 17, 2008, letter in

which the art jury conveyed to them its approval of their story poles. That letter stated in

part: "The story poles were reviewed and approved with the following exception

[regarding the staff quarters], by three Art Jury members. [¶] . . . [¶] Prior to approval,

the Art Jury requests architectural working drawings, equivalent to the drawings

submitted by the [C]ounty, including the changes made to the staff quarters. [¶] The

grading work may proceed at this time." Reading Plaintiffs' allegations together, Exhibit

6 contradicts their allegation that Defendant represented to them the height reflected by

their story poles and height differential of 18 feet in the Plaintiffs' plans were approved.

Defendant did not make those express representations of fact. At most, they were

implied representations, which are insufficient to support a cause of action for negligent

misrepresentation. (Wilson, supra, 15 Cal.App.4th at p. 306; Huber, supra, 67

Cal.App.3d at p. 304; Yanase, supra, 212 Cal.app.3d at pp. 472-473; Weissich, supra,

224 Cal.App.3d at pp. 1082-1083.)


                                              16
       Furthermore, the complaint shows Plaintiffs' engineers (i.e., CE) were required to,

and did, thereafter certify the elevation of Plaintiffs' pad after grading. Therefore, the

complaint's conclusory allegations are insufficient to state a cause of action against

Defendant for an express misrepresentation that it approved the height of Plaintiffs'

proposed structures. The trial court correctly sustained Defendant's demurrer to the

negligent misrepresentation cause of action. (Aubry, supra, 2 Cal.4th at pp. 966-967; Fox

v. Pollack, supra, 181 Cal.App.3d at p. 962; Wilson, supra, 15 Cal.App.4th at p. 306;

Huber, supra, 67 Cal.App.3d at p. 304; Yanase, supra, 212 Cal.App.3d at pp. 472-473;

Weissich, supra, 224 Cal.App.3d at pp. 1082-1083.)

                                              B

       In support of their cause of action for negligent omission, Plaintiffs' second

amended complaint alleged Defendant "negligently omitted the following material facts:

(1) the height differential [of] 18 feet set forth in the plans Plaintiffs submitted was not

approved; (2) in order for Plaintiffs to build the structure as 'approved,' they needed to

consult the Feinbergs' plans, which had never been given to the Plaintiffs; and (3) the

height represented by the Plaintiffs' story poles was not, in fact, approved."

       To the extent Plaintiffs' cause of action for negligent omission is based on section

1709, which defines fraudulent deceit, it does not state a cause of action because it does

not allege a willful concealment by Defendant with an intent to induce Plaintiffs to alter

their position. Section 1709 provides: "One who willfully deceives another with intent to

induce him to alter his position to his injury or risk, is liable for any damage which he


                                              17
thereby suffers." (Italics added.) To the extent Plaintiffs base their cause of action solely

on section 1710, that section does not provide an independent cause of action, but instead

sets forth the definition of "deceit" for purposes of a section 1709 cause of action.

       Plaintiffs apparently base their cause of action for negligent omission on case law

setting forth those circumstances in which nondisclosure or concealment constitutes

fraud. There are "four circumstances in which nondisclosure or concealment may

constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the

plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to

the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff;

and (4) when the defendant makes partial representations but also suppresses some

material facts." (Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651.) However,

Plaintiffs do not set forth the elements of any such cause of action and do not cite any

case holding the elements of willful concealment and intent to induce reliance do not

apply. Furthermore, to the extent Plaintiffs base their negligent omission cause of action

on Defendant's alleged fiduciary relationship with them, we conclude Defendant did not

have a fiduciary relationship with Plaintiffs in the context of its review and approval or

disapproval of the proposed development of their property. (Cf. Frances T. v. Village

Green Owners Assn. (1986) 42 Cal.3d 490, 514 [association's directors did not owe

member any fiduciary duty in exercising their discretion under CC&Rs regarding

member's lighting].) Alternatively stated, the scope of any fiduciary duty Defendant

owed to Plaintiffs did not extend to its review and approval or disapproval of their


                                             18
development plans. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th

394, 425 [question is not whether a fiduciary duty exists, but what is the scope or extent

of that duty in the facts of a particular case].) Cohen, supra, 142 Cal.App.3d at page 651,

cited by Plaintiffs, is factually inapposite and does not persuade us to reach a contrary

conclusion.

       To the extent Defendant had exclusive knowledge that it considered Feinberg's

plans and approved Plaintiffs' proposed development based on a 25-foot height

differential, Plaintiffs do not persuade us such knowledge, in and of itself, imposes a duty

on Defendant to not suppress or conceal those facts when reviewing and approving or

disapproving Plaintiff's development plans. Likewise, Plaintiffs do not persuade us

Defendant's alleged partial representation while suppressing other material facts (e.g., it

considered Feinberg's plans and approved Plaintiffs' proposed development based on a

25-foot height differential), is sufficient to state a cause of action for negligent omission

in the circumstances of this case. The trial court correctly sustained Defendant's

demurrer to the negligent omission cause of action.

                                              IV

                            Breach of Contract Cause of Action

       Plaintiffs contend the trial court erred by concluding they did not state a cause of

action for breach of contract. To state a cause of action for breach of contract, Plaintiffs

were required to allege: (1) the existence and terms of the contract; (2) their performance

or excuse for nonperformance; (3) Defendant's breach; and (4) resulting damage to them.


                                              19
(Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821; McDonald v. John P.

Scripps Newspaper (1989) 210 Cal.App.3d 100, 104.) Plaintiffs' complaint alleged

Defendant breached certain provisions of the CC&Rs "by failing to 'properly' carry out

the design approval process, including failing to view the story poles from the

neighboring property, failing to advise the neighbors of the story poles, and failing to

evaluate the view from the surrounding properties." In general, those allegations simply

recast the allegations on which Plaintiffs' negligence cause of action were based. As we

discussed above, the CC&Rs did not impose a duty on Defendant to view the story poles

from neighboring properties. Likewise, our review of the CC&Rs shows there is no

provision obligating Defendant to advise neighbors of story poles or to evaluate the

surrounding properties' views when reviewing a member's development plans for

approval or disapproval. Finally, the CC&Rs do not obligate Defendant to "properly"

carry out the design approval process. Rather, section 7.5(d) simply states: "The Art Jury

shall meet as often as it deems necessary to properly carry out the obligations imposed

upon it . . . ." That provision addresses the frequency of art jury meetings rather than

establishing any contractual duty to properly carry out the design approval process.

Similar to our conclusion above in addressing the negligence cause of action, we

conclude the CC&Rs did not contractually obligate Defendant to act reasonably in

reviewing Plaintiffs' development proposal to verify the accuracy of the elevation

measurements set forth in their engineer's plans (e.g., by noticing and reconciling the

elevation discrepancy between Plaintiffs' plans and existing plans for the Feinberg pad,


                                             20
and by viewing Plaintiffs' story poles from neighboring properties). The trial court

correctly sustained Defendant's demurrer to the breach of contract cause of action.

                                               V

                            Equitable Indemnity Cause of Action

       Plaintiffs contend the trial court erred by concluding they did not state a cause of

action for equitable indemnity.

                                               A

       "Indemnification between joint tortfeasors is an equitable rule created to correct

potential injustice, and the doctrine is not available where it would operate against public

policy." (Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109,

1117.) The doctrine of equitable indemnity "applies only among defendants who are

jointly and severally liable to the plaintiff. . . . [¶] . . . With limited exception, there must

be some basis for tort liability against the proposed indemnitor." (BFGC Architects

Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852.)

"Joint and several liability does not depend on whether the tortfeasors owe a duty to one

another. . . . Nor must joint tortfeasors owe the same duty of care to the plaintiff. '[A]

defendant/indemnitee may in an action for indemnity seek apportionment of the loss on

any theory that was available to the plaintiff upon which the plaintiff would have been

successful.' " (Leko, at p. 1115.)

       However, "[a] person may not ordinarily recover in tort for the breach of duties

that merely restate contractual obligations. Instead, ' "[c]ourts will generally enforce the


                                               21
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." ' " (Aas v. Superior Court (2000) 24 Cal.4th 627, 643.) Therefore, even

though a complaint may use negligence terminology, if the alleged facts support, at most,

a breach of contract, rather than a breach of a legal duty of care, then there can be no

liability in tort for equitable indemnity. (Stop Loss Ins. Brokers, Inc. v. Brown & Toland

Medical Group (2006) 143 Cal.App.4th 1036, 1041-1042.)

                                              B

       Plaintiffs' equitable indemnity cause of action alleged Defendant owed the

Feinbergs a duty to act reasonably and exercise due care during the approval process for

Plaintiffs' proposed construction. It further alleged Defendant breached that duty by

performing negligently, resulting in approval of Plaintiffs' proposed construction at a

height that would partially block the Feinberg's view. It alleged Plaintiffs paid the

Feinbergs $210,000 to settle the subsequent action against them. Alleging those damages

recovered by the Feinbergs were primarily caused by Defendant's breach of the CC&Rs

and duty to act reasonably and with due care, Plaintiffs sought equitable indemnity from

Defendant.

                                              C

       We conclude Plaintiffs have not stated a cause of action for equitable indemnity.

Although they attempt to phrase their equitable indemnity claim in terms of a duty of

reasonable care owed to the Feinbergs, Plaintiffs' equitable indemnity claim simply


                                             22
recasts their breach of contract theory of liability in negligence terms in an attempt to

obtain indemnity from Defendant as an alleged joint tortfeasor. They cite provisions of

the CC&Rs as purportedly imposing obligations on Defendant regarding the manner in

which it reviews and approves or disapproves plans for proposed development of

members' properties. In so doing, Plaintiffs have not sufficiently alleged facts showing

Defendant was negligent for breaching a duty of reasonable care owed to the Feinbergs.

(Aas v. Superior Court, supra, 24 Cal.4th at p. 643; Stop Loss Ins. Brokers, Inc. v. Brown

& Toland Medical Group, supra, 143 Cal.App.4th at pp. 1041-1042 [if the alleged facts

support, at most, a breach of contract, rather than a breach of a legal duty of care, then

there can be no liability in tort for equitable indemnity].)

       Assuming arguendo Plaintiffs' equitable indemnity cause of action was not based

solely on an alleged breach of contract, we nevertheless would conclude the alleged facts

do not state a cause of action for equitable indemnity. To the extent Defendant's alleged

duty of care owed to the Feinbergs is based on the CC&Rs, we concluded above that the

CC&Rs do not impose any legal duty on Defendant to verify the accuracy of

development plans (e.g., elevations and other measurements shown thereon) submitted by

Plaintiffs or any other member of the homeowners association. Likewise, we concluded

above none of the applicable statutes imposed any legal duty of care on Defendant to act

reasonably in reviewing and approving or disapproving plans for proposed development

of members' properties. In particular, Defendant did not owe any member of the

homeowners association (whether Plaintiffs, the Feinbergs, or other members) any legal


                                              23
duty of care to notice and reconcile the elevation discrepancy between Plaintiffs' plans

and existing plans for the Feinberg pad or to view Plaintiffs' story poles from neighboring

properties. To the extent Plaintiffs may rely on Cohen, supra, 142 Cal.App.3d 642 as

support for their equitable indemnity claim, we concluded above that Cohen is factually

inapposite to this case because the CC&Rs in this case do not contain any express

provisions requiring Defendant to protect an individual homeowner's view. Cohen does

not persuade us Defendant owed the Feinbergs a duty of care in the circumstances of this

case.3 Because Plaintiffs' second amended complaint did not allege a legal duty of care

owed by Defendant to the Feinbergs, it fails to state a cause of action for equitable

indemnity for the settlement payments made to the Feinbergs and other damages

Plaintiffs sustained.

                                             VI

                                 Amendment of Complaint

       Plaintiffs have not argued on appeal that the trial court abused its discretion by

sustaining Defendant's demurrer without leave to amend their complaint. In general, a

demurrer should be sustained with leave to amend if the plaintiff has shown there is a

reasonable possibility the complaint can be amended to cure the defect and state a valid

cause of action. (Aubry, supra, 2 Cal.4th at pp. 966-967; Schifando v. City of Los

3       In so concluding, we need not address Defendant's alternative argument that the
CC&Rs' exculpatory provisions (e.g., section 7.11) were valid and enforceable and
precluded any liability of Defendant to the Feinbergs for any loss they suffered on
account of its approval or disapproval of Plaintiffs' plans for their proposed development
of their property.

                                             24
Angeles (2003) 31 Cal.4th 1074, 1081.) It is the plaintiff's burden to "spell out in his

brief the specific proposed amendments" that would cure the complaint's defects.

(People ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112; see also Cooper

v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.) Because Plaintiffs have not set forth any

specific proposed amendments that purportedly would cure the defects in their second

amended complaint, they have waived or forfeited any contention on appeal that the trial

court abused its discretion by denying them leave to amend the complaint.

                                      DISPOSITION

       The judgment is affirmed. Defendant is entitled to costs on appeal.




                                                                           McDONALD, J.

WE CONCUR:


NARES, Acting P. J.


O'ROURKE, J.




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