Legal Question in Civil Litigation in California

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.,


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

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

5 Answers from Attorneys

Timothy McCormick Libris Solutions - Dispute Resolution Services

You'll know in a few days when the judge rules. I can tell you, however, the label on a cause of action, and/or additional facts that partially support the cause of action labeled are not some magic spell that changes the true nature of a cause of action if it is not the one labeled or that the extraneous facts would apply to. If you don't have contract damages, you don't have a contract cause of action. The fact that you can add personal injury damages to a valid breach of contract claim doesn't mean you have a valid breach of contract claim when your only damages are personal injury.

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Answered on 4/27/13, 2:57 pm

Jacob Kiani Law Office of Jacob I. Kiani

It depends on what the Judge rules. Of course they can demur if they want. It doesn't mean they are going to win. They are just making an argument that it is styled as a breach of contract matter but it's really a personal injury suit. I don't really see how that time bars your breach of contract claim unless they are arguing in addition that the contract didn't create a duty to find and correct even latent defects. On the other hand, what you are really saying is that they were negligent. The breach of the contract does not really have a causal connection to your injuries. What you really have is a tort claim I suppose. It's a tough call. The Judge will probably allow your contract claim to proceed but your damages will be less than on a tort claim.

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Answered on 4/27/13, 3:06 pm
Robert F. Cohen Law Office of Robert F. Cohen

I believe that the damages recoverable on a breach of contract claim are the value of your HOA dues that you paid which were misused and not applied for maintaining the faulty property that caused your injury -- and not your medical bills and compensation for pain and suffering.

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Answered on 4/27/13, 3:42 pm
Joel Selik

The demurrer will likely win. You may be able to amend to allege what are the proper contract damages.

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Answered on 4/27/13, 3:47 pm
Kelvin Green The Law Office of Kelvin Green

In my mind courts don't like end runs... This sounds like an end run. You failed to file the injury in 2 years do you are trying to get around it by claiming it is now a breach if contract.. Much of this depends on how you pleaded the case ...I think this is exacerbated by the fact that defect was not detectable by an ordinary person. They breached the contract by not paying for repairs that were not obvious just seems like a stretch. It still sees like a negligence action If a defendant can win in demurrer stage that's what they want so of course they will file one...

I agree if it survives demurrer the damages won't be what you expect.

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Answered on 4/27/13, 4:03 pm

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