California  |  Civil Litigation

Legal Question

Asked on: 4/27/13, 2:50 pm

I filed a suit (in Superior Court, unlimited) against my Homeowners Association for Breach of Written Contract, because I tripped and fell and physically injured (broke my arm) on an uneven sidewalk (that was hard for any ordinary person to notice the defect) that was poorly maintained by the HOA, despite me paying them monthly Association Dues for them to maintain the property, as part of a written contract amongst us.

I feel that there's a Breach, becasue I have a written contract with the HOA, that I pay them monthly dues, in exchange for them maintaining my condominium common area property, and they failed to honor that written contract, and in their annual report, their CPA states that part of our dues goes to maintaining the private property.

I filed this suit almost 4 years later (3 years 11 months), just before the 4-year Statute of Limitations [S.O.L.] for Breach of Written Contract expires.

I know, that I shouldve sued within 2 years for me to get the Personal Injury claim, but since I missed the 2 year S.O.L., I sued for Breach of Written Contract.

Pursuant to Westervelt v. McCullough (1924) 68 C.A. 198, 228 P. 734, it states that if a Breach resulted in physical injury, then pain and suffering damages are allowed.

So, this Breach of Written Contract case, is basically a personal injury case in disguise, legitimately, but with a 4 year S.O.L..

Defendants demurred and stated that Im only seeking Personal Injury damages, and that a 2 year S.O.L. bars me from bringing this case.

Even though I sued for Breach of Written Contract (that carries a 4 year S.O.L.).

Are defendants right in demurring, claiming that I shouldve filed with 2 years of S.O.L.,

or

Am I right in using the Breach of Written Contract cause of action cause it has a 4 year S.O.L.

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