Filed 5/13/19
                CERTIFIED FOR PUBLICATION

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION EIGHT



DAVID SANDS et al.,                      B282241

       Plaintiffs and Appellants,        Los Angeles County
                                         Super. Ct. No. BC538040
                   v.

WALNUT GARDENS
CONDOMINIUM ASSOCIATION
INC.,

       Defendant and Respondent.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Frank J. Johnson, Judge. Affirmed in part,
reversed in part, and remanded.
      Law Office of Jeff A. Lesser and Jeff A. Lesser, for Plaintiffs
and Appellants.
      Slaughter, Reagan & Cole, Barry J. Reagan and Gabriele M.
Lashly, for Defendant and Respondent.
                    __________________________
       This case is about whether condominium owners can make
their homeowners association pay for a water leak. Monique Sands
and her parents sued and went to trial against the Walnut Gardens
Condominium Association, Inc. and its property manager for breach
of contract and negligence. The trial court granted a nonsuit. The
Sandses settled with the property manager but have appealed
against the association. The Sandses argue the trial court erred by
granting the nonsuit, by excluding certain evidence, and by denying
their motion for a new trial. We reverse and remand the contract
nonsuit and affirm the tort nonsuit. We do not reach other issues.
                                     I
       We summarize the facts. When reviewing a nonsuit, we view
facts in the plaintiff’s favor and disregard conflicting evidence.
(O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 347.)
       The Sandses owned a unit in the Walnut Gardens
development. A pipe on the roof broke and water entered the
Sandses’ bedroom. The association’s agent hired people to repair
the pipe and roof. The association had responsibility to maintain its
common areas, including this piping and roof. The Sandses sued
the association for breach of contract and negligence. The trial
court selected a jury, heard the Sandses’ two witnesses in their case
in chief, and granted a nonsuit.
                                    II
       We reverse the nonsuit on the breach of contract claim.
       Our review of nonsuit judgments is limited. To allow the
opposing party to cure defects in proof, we may affirm only on logic
stated in the motion for nonsuit, unless the defect would have been
impossible to cure. (Lawless v. Calaway (1944) 24 Cal.2d 81, 94
(Lawless).)
       The Sandses claimed a breach of contract. The contract they
say, was the association’s covenants, conditions, and restrictions,




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one part of which required the association to keep the project in “a
first class condition.” The Sandses’ first witness, however, testified
the association was performing no preventive maintenance at all,
even though preventive maintenance was desirable. The roof and
pipes over the Sandses’ unit had not been inspected or maintained
in years.
       The association’s oral motion for nonsuit was concise to a
fault. It first argued there was “a complete absence of evidence” to
show a breach of contract. This first argument was incorrect.
Reasonable jurors could have concluded a total failure to maintain
common areas breached a promise to keep these areas in first class
condition.
       The association next argued no evidence showed the
association was “on notice that it needed to make repairs or do
something to the roof or the pipes.” This argument too was
incorrect. The property manager testified “[m]aintenance wasn’t
happening. It was a very sad situation for the homeowners.” A jury
could find buildings need maintenance to remain in first class
condition. The association knew “[m]aintenance wasn’t happening.”
As a prima facie matter, no more was needed.
       In the course of granting the motion, the trial court added
oral reasoning beyond the contents of the nonsuit motion. The
court said the Sandses’ lack of expert testimony would force the jury
to “speculate” about how a pipe broke and the roof leaked. By
suggesting expert testimony was essential, this contract analysis
erred. A complete lack of preventive maintenance is evidence the
association did not keep the roof or pipes in first class condition.
The jury would not need experts to grasp this.
       Neither the motion nor the court’s rationale challenged the
idea that covenants, conditions, and restrictions comprise a contract
between the association and individual owners. (See Pinnacle




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Museum Tower Assn. v. Pinnacle Market Development (US), LLC
(2012) 55 Cal.4th 223, 240.) Nor did the motion or rationale hint at
the rule of deference governing owner suits against homeowner
associations. (See Lamden v. La Jolla Shores Clubdominium
Homeowners Assn. (1999) 21 Cal.4th 249, 253.) The nonsuit
argument did not consider these points. Therefore neither do we.
Defects unspecified in a nonsuit motion will be considered on appeal
only if the plaintiff could not have cured the defects at trial. (See
Lawless, supra, 24 Cal.2d at p. 94.)
       We reverse and remand the nonsuit judgment about the
contract.
                                     III
       We affirm the nonsuit tort judgment.
       The association argued there was no evidence “as far as
negligence [was] concerned” showing the association “was on notice
of any condition that required repair.” The trial court rightly
decried this effort to “tortify” a creature of private ordering. (See
Erlich v. Menezes (1999) 21 Cal.4th 543, 554 [“If every negligent
breach of a contract gives rise to tort damages the limitation [that
‘breach of contract is tortious only when some independent duty
arising from tort law is violated’] would be meaningless, as would
the statutory distinction between tort and contract remedies.”].)
       Outside the covenants, conditions, and restrictions, the
association had no independent duty as to the pipes and roof arising
from tort law. The Sandses’ trial counsel conceded the evidence for
their negligence claim was “pretty much the same, under the same
thing as a contract . . . .” The Sandses give us no authority for a
cause of action in tort. They state: “As with the Cause of Action for
Contract, the duties and obligations for which the HOA, Walnut
Gardens, was responsible, are found in the [covenants, conditions,
and restrictions] . . . .”




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      Even had the association omitted this issue in its nonsuit
motion, nothing the Sandses could have done at trial would have
summoned into existence a tort claim barred by law. (See Lawless,
supra, 24 Cal.2d at p. 94.)
                            DISPOSITION
      We affirm the nonsuit of the tort claim and reverse and
remand the nonsuit on the contract claim. The parties will bear
their own costs.

                                        WILEY, J.
WE CONCUR:




           BIGELOW, P.J.




           STRATTON, J.




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