W&W Del Lago v. Rancho Del Lago HOA CA4/1 ( 2013 )


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  • Filed 6/19/13 W&W Del Lago v. Rancho Del Lago HOA CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    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.
    25