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.,

Plaintiffs and Appellants,

v.

WALNUT GARDENS 

CONDOMINIUM ASSOCIATION 

INC.,

Defendant and Respondent.

 B282241

 Los Angeles County

 Super. Ct. No. BC538040

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.

__________________________
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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.