## Facts

- Benedict Hills Estates was a common-interest residential development governed by recorded CC&Rs.
- The CC&Rs imposed on the homeowners association a duty to maintain natural and manmade slopes and related drainage, including within individual lots.
- A surface slump occurred on the fill slope of a lot between 1976 and 1978; the lot remained vacant for years.
- In early 1988, Eric Cutujian purchased the lot within the development.
- While escrow was pending, Cutujian demanded in April 1988 that the association repair the slope under the CC&Rs.
- Discussions about repair feasibility and cost did not result in the association undertaking the work.
- Cutujian repaired the slope at his own expense and sued in 1989 to recover the repair costs.

## Issues

1. Whether the claim’s gravamen was tort-based (nuisance tied to the 1970s slump) or based on violation of a CC&R covenant running with the land.
2. When the statute of limitations began to run: at the time of the original slump or upon the association’s failure to perform after Cutujian’s 1988 demand.
3. Whether the association could retain an attorney-fee award obtained after dismissal on limitations grounds.

## Decision

- The Court of Appeal reversed the judgment of dismissal entered after a demurrer sustained without leave to amend.
- The court held the gravamen of the claim was the association’s violation of a covenant running with the land in the CC&Rs.
- The statute of limitations did not start with the 1976–1978 slump; it began in April 1988 when Cutujian demanded performance under the covenant.
- Because suit was filed less than two years after that demand, the action was timely and should not have been dismissed on limitations grounds.
- The court also reversed the postjudgment order awarding the association attorney’s fees and costs.

## Legal Principles

- Courts look to the gravamen of the pleadings rather than the label attached to a cause of action when analyzing accrual and limitations.
- A homeowners association’s recorded CC&R obligation to maintain and repair property conditions can constitute a covenant running with the land.
- For limitations purposes, a claim based on nonperformance of such a covenant accrues when the beneficiary demands performance and the obligated party fails or refuses to perform, not when the underlying physical condition first arose.
- A fee award premised on prevailing-party status cannot stand when the underlying judgment establishing that status is reversed.

## Conclusion

The court treated the dispute as enforcement of a CC&R covenant running with the land and held that the limitations period began when the lot owner demanded performance and the association failed to act; it reversed the dismissal and the association’s attorney-fee award.


Cutujian v. Benedict Hills Estates Ass'n, 41 Cal. App. 4th 1379, 49 Cal. Rptr. 2d 166 (Ct. App. 1996)