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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.)

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.