[Attorney’s Fees; ADR; Settlement Agreement] An action to enforce a settlement agreement reached between a HOA and an owner through Alternative Dispute Resolution (ADR) was held to be an action to enforce the governing documents entitling the prevailing party to an award of attorney’s fees and costs pursuant to Civ. Code § 5975.
OPINION
HOLLENHORST, J.
Defendants and appellants Thomas B. Hazelbaker and Lynn G. Hazelbaker own, through their family trust, a condominium in the Rancho Mirage Country Club development. Defendants made improvements to an exterior patio, which plaintiff and respondent Rancho Mirage Country Club Homeowners Association (Association) contended were in violation of the applicable covenants, conditions and restrictions (CC&Rs). The parties mediated the dispute pursuant to the Davis-Stirling Common Interest Development Act (Davis-Stirling Act or the Act), codified at sections 4000-6150 of the Civil Code[1] (formerly sections 1350-1376). The mediation resulted in a written agreement. Subsequently, the Association filed the present lawsuit, alleging that defendants had failed to comply with their obligations under the mediation agreement to modify the property in certain ways.
While the lawsuit was pending, defendants made modifications to the patio to the satisfaction of the Association. Nevertheless, the parties could not [256] reach agreement regarding attorney fees, which the Association asserted it was entitled to receive as the prevailing party.
The Association filed a motion for attorney fees and costs, seeking an award of $31,970 in attorney fees and $572 in costs. The trial court granted the motion in part, awarding the Association $18,991 in attorney fees and $572 in costs. Defendants argue on appeal that the trial court’s award, as well as its subsequent denial of a motion to reconsider the issue, are erroneous in various respects.[2]
For the reasons discussed below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In November 2011, defendants applied for and received approval from the Association’s architectural committee to make certain improvements to the patio area of their property. Subsequently, however, the Association contended that defendants had made changes that exceeded the scope of the approval, and which would not have been approved had they been included in defendants’ November 2011 application.
On June 19, 2012, the Association sent defendants a request for alternative dispute resolution pursuant to former section 1369.510 et seq., identifying the disputed improvements and proposing that the parties mediate the issue. Defendants accepted the proposal, and a mediation was held on April 8, 2013. A “Memorandum of Agreement in Mediation” dated April 9, 2013, was reached, signed by two representatives of the Association, its counsel, and Thomas Hazelbaker (but not Lynn Hazelbaker). The agreement called for defendants to make certain modifications to the patio, in accordance with a plan newly approved by the Association; specifically, to install three openings, each 36 inches wide and 18 inches high, in a side wall of the patio referred to as a “television partition” in the agreement, and to use a specific color and fabric for the exterior side of drapery. The agreement provided for the modifications to be completed within 60 days from the date of the agreement. It also provided for a special assessment on defendants’ property to pay a portion of the Association’s attorney fees incurred to that point, and included a prevailing party attorney fees clause with respect to any subsequent legal action “pertaining to the enforcement of or arising out of” the agreement.
The modifications described in the mediation agreement were not completed within 60 days. The parties each blame the other for that circumstance.
[257]
On September 4, 2013, the Association filed the present lawsuit, asserting two causes of action: (1) for specific performance of the mediation agreement, and (2) for declaratory relief. Subsequently, the parties reached agreement regarding modifications to the property, slightly different from those agreed to in mediation; instead of three 36-inch-wide openings, two openings of 21 inches, separated by a third opening 52 inches wide, were installed in the wall, and a different fabric than the one specified in the mediation agreement was used for the drapery. The modifications were completed by defendants in September 2014. The parties could not reach a complete settlement, however, because they continued to disagree about who should bear the costs of the litigation.
On October 15, 2014, the Association filed a motion seeking attorney fees and costs pursuant to section 5975, subdivision (c). The motion sought $31,970 in attorney fees, plus $572 in costs. On October 30, 2014, the hearing of the matter, initially set for November 10, 2014, was continued to November 25, 2014, on the court’s own motion. Defendants filed their opposition to the motion on November 14, 2014.
At the November 25, 2014 hearing on the motion, the trial court noted that defendants’ “paperwork was not timely and the Court did not consider it.”[3] The court further observed that the bills submitted by the Association in support of its motion were heavily redacted, sometimes to the point where it could not “tell what’s going on.” The court declined to review unredacted bills in camera, and further remarked that “if I can’t tell what’s going on, I’m not awarding those fees.” At the conclusion of the hearing, the court took the matter under submission.
On December 2, 2014, the trial court issued a minute order granting the Association’s motion, but awarding less than the requested amount; $18,991 in attorney fees, plus $572 in costs. The trial court denied the Association’s motion with respect to fees incurred prior to the mediation, awarding $3,888.50 in “[p]ost mediation fees” incurred by one law firm on behalf of the Association “starting 60 days post mediation,” and $15,102.50 in “litigation fees” incurred by another law firm. With respect to the “[p]ost mediation fees,” the court commented as follows: “The court had great difficulty determining the nature of the billings because so much information was redacted from the billings. All doubts were resolved in favor of the homeowner.”
Judgment was entered in favor of the Association on December 17, 2014, and on January 14, 2015, a notice of entry of judgment was filed. On January [258] 21, 2015, defendants filed a motion for reconsideration of the trial court’s order regarding fees and costs. On February 27, 2015, after a hearing, the trial court denied the motion as untimely, further noting that the motion “did not set forth any new facts, law, or a chance in circumstances.”
II. DISCUSSION
A. The Association’s Lawsuit Is an “Action to Enforce the Governing Documents” Under the Davis-Stirling Act.
This case presents the question of whether the Davis-Stirling Act, and particularly the fee-shifting provision of section 5975, subdivision (c), applies to an action to enforce a settlement agreement arising out of a mediation conducted pursuant to the mandatory alternative dispute resolution requirements of the Act. We conclude that it does apply in at least some circumstances, and more specifically that it applies on the facts of this case.
“The Davis-Stirling Act, enacted in 1985 [citation], consolidated the statutory law governing condominiums and other common interest developments.” (Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 81 (Villa De Las Palmas).) “The Davis-Stirling Act includes provisions addressing alternative dispute resolution (ADR), including the initiation of such nonjudicial procedures, the timeline for completing ADR, and the relationship between ADR and any subsequent litigation.” (Grossman v. Park Fort Washington Assn. (2012) 212 Cal.App.4th 1128, 1132 (Grossman).) Among other things, the legislation provides that “[a]n association or a member may not file an enforcement action in the superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution pursuant to this article.” (§ 5930, subd. (a).)
The Act also includes the following mandatory attorney fees provision: “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (§ 5975, subd. (c).) This language has been interpreted to allow recovery of not only litigation costs, but also reasonable attorney fees and costs expended in pre-litigation ADR pursuant to the Davis-Stirling Act. (Grossman, supra, 212 Cal.App.4th at p. 1134 [interpreting former section 1354, later renumbered as § 5975 without substantive change].)
In Grossman, although the parties participated in a mediation prior to the litigation, there is no indication that the mediation produced any sort of agreement, and the complaint was explicitly framed as an action to enforce a specific provision of the CC&Rs at issue. (Grossman, supra, 212 Cal.App.4th [259] at pp. 1131, 1133.) In contrast, the mediation between the parties in this case did produce an agreement, and the complaint was framed as an action to enforce that agreement. Grossman therefore does not directly address whether the Association’s claim for attorney fees and costs is properly treated as falling within the scope of the Davis-Stirling Act. Grossman in essence interprets the term “action” in section 5975 to encompass both the mandatory pre-litigation ADR efforts and any subsequent litigation “to enforce the governing documents.” (Grossman, supra, at p. 1134; § 5975.) But is a lawsuit to enforce an agreement that was reached during mediation (or another form of ADR) an action “to enforce the governing documents,” in the meaning of section 5975, where the mediation was initiated pursuant to the Davis-Stirling Act? In our view, that question must be answered in the affirmative, at least in circumstances similar to those of this case, for the reasons discussed below.
We must construe the words of a statute in context and with reference to the entire scheme of law of which they are a part. (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043.) The Davis-Stirling Act is intended, among other things, to encourage parties to resolve their disputes without resort to litigation, by effectively mandating pre-litigation ADR. (See § 5930, subd. (a) [enforcement action in civil court may not be filed until parties have “endeavored to submit their dispute” to ADR; § 5960 [in determining amount of fee and cost award, court “may consider whether a party’s refusal to participate in [ADR] before commencement of the action was reasonable”].) Narrowly construing the phrase “action to enforce the governing documents” to exclude actions to enforce agreements arising out of that mandatory ADR process would discourage such resolutions, and encourage gamesmanship. For example, a party might agree to a settlement in mediation without any intention of fulfilling its settlement obligations, but simply to escape the cost-shifting provisions of the Davis-Stirling Act.[4] It is unlikely, therefore, that a narrow construction is preferable.
Moreover, the gravamen of the Association’s complaint is that defendants have not taken certain steps to bring their property into compliance with the applicable CC&Rs. The relief sought by the complaint is an order requiring defendants to take those steps, and a declaration of the parties’ respective rights and responsibilities. The circumstance that the steps to bring the property into compliance with CC&Rs were specified a mediation agreement does not change the underlying nature of the dispute between the parties, or the nature of the relief sought by the Association. Indeed, the parties’ agreement was the product of a mediation conducted [260] explicitly pursuant to the ADR requirements of the Davis-Stirling Act. We see nothing in the Davis-Stirling Act that suggests we should give more weight to the form of a complaint—its framing as an action to enforce a mediation agreement—than to the substance of the claims asserted and relief sought, in determining whether an action is one “to enforce the governing documents” in the meaning of section 5975.
We hold, therefore, that the present case is an “action to enforce the governing documents,” in the meaning of section 5975.[5] As such, the trial court properly considered the Davis-Stirling Act as the basis for any recovery, as the Association requested in its motion for attorney fees and costs. (Parrott v. Mooring Townhomes Assn., Inc. (2003) 112 Cal.App.4th 873, 879-880 [because party sought recovery pursuant to fee-shifting statute, standards for contractual fee-shifting clauses inapplicable].)
B. The Trial Court Did Not Abuse Its Discretion by Determining the Association to Be the Prevailing Party.
Defendants contend the trial court erred by determining the Association to be the prevailing party. We find no abuse of discretion.
The analysis of who is a prevailing party under the fee-shifting provisions of the Act focuses on who prevailed “on a practical level” by achieving its main litigation objectives; the limitations applicable to contractual fee-shifting clauses, codified at section 1717, do not apply.[6] (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574.) We review the trial court’s determination for abuse of discretion. (Villa De Las Palmas, supra, 33 Cal.4th at p. 94.) “`”The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced [261] from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”‘” (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1339 (Goodman).)
The trial court’s determination that the Association prevailed on a practical level is not beyond the bounds of reason. The Association wanted defendants to make alterations to their property to bring it in compliance with the applicable CC&Rs, specifically, by installing openings in the side wall of the patio, and altering the drapery on the patio. The Association achieved that goal, with defendants completing the modifications to the patio in September 2014.
Defendants focus on the circumstance that the modifications that were ultimately made to the property differed in some details from those contemplated by the mediation agreement. This argument, however, frames the issue improperly. The “action” at issue in the section 5975 analysis includes not only the litigation in the trial court, but also the pre-litigation ADR process. (Grossman, supra, 212 Cal.App.4th at p. 1134.) The objective of the Association’s enforcement action, including the pre-litigation ADR process, is reasonably characterized broadly, as seeking to force defendants to bring their property into compliance with the CC&Rs. It was successful in achieving that goal.
Moreover, the differences between the terms of the mediation agreement and the actual modifications that defendants made, and which the Association accepted, are reasonably viewed as de minimis. The openings installed in the patio wall were of different dimensions than were contemplated in the mediation agreement, but nevertheless openings were installed, to the satisfaction of the Association; different fabric was used, but nevertheless the exterior color of the drapery was brought into conformity with the rest of the development. And defendants concede (indeed, insist) that the changes between the terms of the mediation agreement and the final modifications to the property were motivated by physical necessity—the dimensions of the existing wall and its supporting beams, the unavailability of the specified fabric for drapery. Defendants cannot point to any success in any aspect of the litigation itself; prior to the motion for attorney fees at issue, the only significant events in the litigation were the filing of the complaint and the answer. The trial court therefore did not exceed the bounds of reason in determining the Association achieved its main litigation objectives as a practical matter.
Defendants argue that the trial court abused its discretion by refusing to consider their late-filed opposition papers and supporting evidence, and that consideration of that evidence “undoubtedly would have mitigated in [262] favor of [defendants] and necessarily a different ruling as to the prevailing party determination.” This argument fails in several respects. First, a trial court has broad discretion to accept or reject late-filed papers. (Cal. Rules of Court, rule 3.1300(d).) Defendants made no attempt to seek leave to file their opposition late, and made no attempt to demonstrate good cause for having failed to adhere to the applicable deadline. The circumstance that they were, at the time, appearing in propria persona, does not establish good cause. (See Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639 [“When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation].” (Fn. omitted.).) The trial court acted well within its discretion when it declined to consider defendants’ opposition papers.[7]
Second, defendants are incorrect that consideration of their opposition would likely have made any difference in the trial court’s determination of the prevailing party. Defendants sought to introduce evidence that the terms of the mediation agreement could not be precisely implemented, and evidence of the Association’s “delay and unwillingness to address ambiguities in the agreement.” Even accepting these points as true, however (and they are disputed at least in part by the Association), they would not likely have altered the trial court’s analysis of which party prevailed in the action. The fact remains, as discussed above, the Association contended defendants had altered their property in a manner that was inconsistent with the applicable CC&Rs, and sought successfully to force defendants to make modifications to bring the property into compliance. Because the Association achieved that main litigation objective, it was properly considered to have prevailed in the action as a practical matter, even though the only judgment resulting from the case related to the award of fees and costs, not the merits of the complaint.[8]
In short, the trial court reasonably found the Association to be a prevailing party, for purposes of making an award of attorney fees and costs under the Davis-Stirling Act.
[263]
C. The Trial Court Did Not Abuse Its Discretion in Determining the Amount of Fees and Costs to Award.
Defendants argue that the trial court abused its discretion in determining its award of fees and costs in several different respects. We find no abuse of discretion.
Once the trial court determined the Association to be the prevailing party in the action, it had no discretion to deny attorney fees. (§ 5975; Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1152 [language of § 5975 reflects legislative intent to award attorney fees as a matter of right when statutory criteria are satisfied].) The magnitude of what constitutes a reasonable award of attorney fees is, however, a matter committed to the discretion of the trial court. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.) As noted above, in reviewing for abuse of discretion, we examine whether the trial court exceeded the bounds of reason. (Goodman, supra, 47 Cal.4th at p. 1339.) In so doing, we presume the “trial court impliedly found `every fact necessary to support its order.'” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115-1116, fn. 6, citing Murray v. Superior Court (1955) 44 Cal.2d 611, 619.)
Here, the trial court explicitly took into account the circumstance that the Association had already recovered a portion of its attorney fees pursuant to the agreement of the parties, and awarded fees only for fees incurred starting 60 days after the mediation, when the agreed upon modifications should have been completed. The court also excluded any award with respect to billings that did not provide sufficient “information” for it to “tell what’s going on.” The amount actually awarded was substantially less than the total amount requested, and defendants have not pointed to anything suggesting the amount is unreasonable on its face, given the circumstances of the case. We therefore find no manifest abuse of discretion in the court’s award.
Defendants argue that the trial court did not have enough information to support its findings, pointing to the trial court’s comments about heavy redaction of the billing records. The trial court specified, however, that it awarded no fees with respect to billing items it considered to be excessively redacted, and that it resolved any doubts about the appropriateness of billing entries in favor of defendants. Moreover, unlike some other jurisdictions, California law does not require detailed billing records to support a fee award; “[a]n attorney’s testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records.” (Steiny & Co. v. California Electric Supply Co. [264] (2000) 79 Cal.App.4th 285, 293.) Furthermore, “[a]n award for attorney fees may be made in some instances solely on the basis of the experience and knowledge of the trial judge without the need to consider any evidence. (Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 227.) Defendants’ arguments about the sufficiency of the documentation submitted by the Association in support of its request for attorney fees are without merit.[9]
Defendants also suggest that the trial court erred by not articulating in more detail its findings with respect to how it arrived at the number that it did for an award of attorney fees and costs. It is well settled, however, that the trial court was not required to issue any explanation of its decision with regard to the fee award. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101 (Gorman)[“We adhere to our earlier conclusion that there is no general rule requiring trial courts to explain their decisions on motions seeking attorney fees.”].) To be sure, appellate review may well be “hindered” by the lack of any such explanation. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 560.) Without explanation, an award may appear arbitrary, requiring remand if the appellate court is unable to discern from the record any reasonable basis for the trial court’s decision. (E.g. Gorman, supra, at p. 101 [“It is not the absence of an explanation by the trial court that calls the award in this case into question, but its inability to be explained by anyone, either the parties or this appellate court.”) Here, the trial court’s reasoning is not so inscrutable, as discussed above.
D. Judgment Was Properly Entered Against Both Defendants.
Defendants argue that judgment was not properly entered against Lynn Hazelbaker, because she was not a signatory to the mediation agreement. This argument was not raised in the trial court, however, and “[a]s a general rule, `issues not raised in the trial court cannot be raised for the first time on appeal.'” (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) Moreover, the argument [265] is without merit. It depends on the characterization of the action as no more than an action on a contract, rather than an action to enforce the CC&Rs, which we rejected above. Moreover, Lynn Hazelbaker was jointly represented by the same attorneys as Thomas Hazelbaker during the periods of the case when they have been represented by counsel, and joined with him in every filing, both in the trial court and in this court.[10] An award of attorney fees to the Association against both Thomas and Lynn Hazelbaker is appropriate.
E. The Trial Court Did Not Err By Denying Defendants’ Motion for Reconsideration.
Defendants argue that the trial court erred by denying their motion for reconsideration as untimely. They are incorrect. Judgment was entered on December 17, 2014, while defendants’ motion was filed on January 21, 2015. “A trial court may not rule on a motion for reconsideration after entry of judgment.” (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 192.)
Defendants further contend that the trial court should have treated their untimely motion for reconsideration as a timely motion for new trial, and granted it. However, defendants’ asserted bases for demanding a “new trial”—really, a new hearing on the issue of attorney fees, since no trial, or any other disposition on the merits of the complaint, ever occurred—are all contentions we have discussed above, and rejected. Defendants’ January 21, 2015 motion was properly denied on the merits, even if it could be construed as timely filed.
F. The Association Is Entitled to Appellate Attorney Fees.
The Association correctly asserts that if it prevails in this appeal it is entitled to recover its appellate attorney fees. “A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.) Neither section 5975, nor any other provision of the Davis-Stirling Act, precludes recovery of appellate attorney fees by a prevailing party; hence they are recoverable.
[266]
III. DISPOSITION
The judgment is affirmed. The Association is awarded its costs and attorney fees on appeal, the amount of which shall be determined by the trial court.
RAMIREZ, P. J. and MILLER, J., concurs.
[1] Further undesignated statutory references are to the Civil Code.
[2] The Association did not file a cross appeal challenging the trial court’s award of less than the full amount requested.
[3] Defendants concede that their opposition to the motion for attorney fees was filed late, only seven court days before the hearing. (See Code Civ. Proc., § 1005, subd. (b) [opposition papers due nine court days before hearing].)
[4] We here speak in hypotheticals; we do not suggest a finding that defendants have engaged in such gamesmanship.
[5] It bears mention that our conclusion here may not apply to every action to enforce a settlement agreement arising out of ADR conducted pursuant to the Davis-Stirling Act. Consider the situation of a dispute arising regarding the application of CC&Rs, resolved at mediation by an agreement for one party to buy the other party’s property, with payments to be made on a specified schedule. Suppose the payments are not made on time, and a lawsuit to enforce the settlement is brought. It would be difficult to characterize such an action as one to “enforce the governing documents,” at least in the same sense as the action at issue in this appeal. But we may leave for another day the question of whether a dispute like our hypothetical would nevertheless fall within the scope of section 5975.
[6] Section 1717 provides that when an action on a contract “has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party” for the purpose of an award of attorney fees pursuant to a contractual prevailing party clause. (§ 1717, subd. (b)(2).) Because section 1717 is inapplicable to this case, we need not and do not discuss in detail defendants’ arguments that rest on application of that section.
[7] Defendants’ arguments to the contrary rely heavily on case law from the summary judgment context. This reliance is out of place. Even if a motion for attorney fees is the last issue remaining in a case, it is not, as defendants put it, a “case dispositive motion” in the same sense that a motion for summary judgment is.
[8] Like the trial court, we need not address the Association’s contention that defendants not only filed their opposition late, but also never properly served the documents and supporting evidence on the Association.
[9] Moreover, defendants never objected to the adequacy of the documentation submitted by the Association in support of its motion for attorney fees, either at the hearing on the motion, or in their late-filed opposition papers. The court raised the issue of excessive redactions on its own motion, not at the prompting of defendants. As such, even if defendants’ challenge to the adequacy of the evidentiary basis for the trial court’s award of fees had merit, it would have been forfeited. (See Robinson v. Grossman (1997) 57 Cal.App.4th 634, 648 [party that failed to object to the trial court that the opposing party’s attorney fees were not sufficiently documented waived the right to object on appeal to the amount of the fee award].)
[10] For example, defendants’ opposition to the Association’s motion for attorney fees and costs is entitled “Declaration of Thomas B. Hazelbaker in Opposition to Plaintiff[‘]s Motion for Attorneys’ Fees and Costs,” but the heading indicates the document was filed on behalf of both Thomas B. Hazelbaker and Lynn G. Hazelbaker, as “Defendants, In Pro Per,” and Lynn Hazelbaker filed no separate opposition to the motion.
Related Links
Attorney’s Fees are Recoverable to Enforce Settlement Agreement Reached in ADR – Published on HOA Lawyer Blog (November, 2016)
Pesticide Application
Fulfilling an association’s maintenance responsibilities may result in the need to apply pesticides to common areas and in some instances to an owner’s separate interest. When pesticides are applied, residents of the association must be provided with notice concerning the time of application and the pesticides to be applied, among other items of information. The laws governing what must be provided differ depending upon whether the pesticides are to be applied by a licensed pest control operator, or instead by someone who is not licensed by the State of California to apply pesticides (i.e., the association’s general landscaper).
Use of a Licensed Pest Control Operator
When an association retains a “pest control operator” that is licensed by the State of California, the pest control operator has to provide several items of information to the association so that the association may pass that information on to its residents. The information required to be provided by the operator to the association, and then passed on to the association’s residents, generally includes:
- The date(s) of the schedule application of pesticides to the property;
- The identity of the pesticide by brand or common chemical name; and
- The precautions printed on the pesticide label or included in laws or regulations to protect persons doing the application.
For more information, see California Code of Regulations Section 6618(b).
Use of an Unlicensed Pest Control Operator – New Civil Code Section 4777
Legislation was enacted in September 2016 to impose requirements on associations that use persons to apply pesticides who are not licensed pest control operators. As a result of that legislation, new Civil Code Section 4777 will be added to the Davis-Stirling Act effective January 1, 2017.
Section 4777 generally requires an association to provide notice to its members and residents of the association’s development when pesticides are to be applied to an owner’s separate interest, or to common area, by an unlicensed pest control operator. The notice must generally include information regarding:
- The name of the pest(s) to be controlled;
- The name and brand of the pesticide product to be used; and
- The approximate date, time and frequency with which the pesticide will be applied, in addition to specified language in the Code disclaiming that pesticides are toxic chemicals.
This notice must be provided at least forty-eight (48) hours prior to the pesticide application by posting notice in a conspicuous location within the common area in which the pesticide is to be applied. If a posted notice is not practicable, notice must be provided by individual delivery. For more information, see Civil Code Section 4777.
Related Links
HOA Compliance with California Pesticide Regulations – Published on HOA Lawyer Blog (January 27, 2014)
Civil Code Section 4777. Pesticide Application; Required Notice.
(a) For the purposes of this section:
(1) “Adjacent separate interest” means a separate interest that is directly beside, above, or below a particular separate interest or the common area.
(2) “Authorized agent” means an individual, organization, or other entity that has entered into an agreement with the association to act on the association’s behalf.
(3) “Broadcast application” means spreading pesticide over an area greater than two square feet.
(4) “Electronic delivery” means delivery of a document by electronic means to the electronic address at, or through which, an owner of a separate interest has authorized electronic delivery.
(5) “Licensed pest control operator” means anyone licensed by the state to apply pesticides.
(6) “Pest” means a living organism that causes damage to property or economic loss, or transmits or produces diseases.
(7) “Pesticide” means any substance, or mixture of substances, that is intended to be used for controlling, destroying, repelling, or mitigating any pest or organism, excluding antimicrobial pesticides as defined by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136(mm)).
(b)
(1) An association or its authorized agent that applies any pesticide to a separate interest or to the common area without a licensed pest control operator shall provide the owner and, if applicable, the tenant of an affected separate interest and, if making broadcast applications, or using total release foggers or aerosol sprays, the owner and, if applicable, the tenant in an adjacent separate interest that could reasonably be impacted by the pesticide use with written notice that contains the following statements and information using words with common and everyday meaning:
(A) The pest or pests to be controlled.
(B) The name and brand of the pesticide product proposed to be used.
(C) “State law requires that you be given the following information:
CAUTION – PESTICIDES ARE TOXIC CHEMICALS. The California Department of Pesticide Regulation and the United States Environmental Protection Agency allow the unlicensed use of certain pesticides based on existing scientific evidence that there are no appreciable risks if proper use conditions are followed or that the risks are outweighed by the benefits. The degree of risk depends upon the degree of exposure, so exposure should be minimized.
If within 24 hours following application of a pesticide, a person experiences symptoms similar to common seasonal illness comparable to influenza, the person should contact a physician, appropriate licensed health care provider, or the California Poison Control System (1-800-222-1222).
For further information, contact any of the following: for Health Questions – the County Health Department (telephone number) and for Regulatory Information – the Department of Pesticide Regulation (916-324-4100).”
(D) The approximate date, time, and frequency with which the pesticide will be applied.
(E) The following notification:
“The approximate date, time, and frequency of this pesticide application is subject to change.”
(2) At least 48 hours prior to application of the pesticide to a separate interest, the association or its authorized agent shall provide individual notice to the owner and, if applicable, the tenant of the separate interest and notice to an owner and, if applicable, the tenant occupying any adjacent separate interest that is required to be notified pursuant to paragraph (1).
(3)
(A) At least 48 hours prior to application of the pesticide to a common area, the association or its authorized agent shall, if practicable, post the written notice described in paragraph (1) in a conspicuous place in or around the common area in which the pesticide is to be applied. Otherwise, if not practicable, the association or its authorized agent shall provide individual notice to the owner and, if applicable, the tenant of the separate interest that is adjacent to the common area.
(B) If the pest poses an immediate threat to health and safety, thereby making compliance with notification prior to the pesticide application unreasonable, the association or its authorized agent shall post the written notice as soon as practicable, but not later than one hour after the pesticide is applied.
(4) Notice to tenants of separate interests shall be provided, in at least one of the following ways:
(A) First-class mail.
(B) Personal delivery to a tenant 18 years of age or older.
(C) Electronic delivery, if an electronic mailing address has been provided by the tenant.
(5)
(A) Upon receipt of written notification, the owner of the separate interest or the tenant may agree in writing or, if notification was delivered electronically, the tenant may agree through electronic delivery, to allow the association or authorized agent to apply a pesticide immediately or at an agreed upon time.
(B)
(i) Prior to receipt of written notification, the association or authorized agent may agree orally to an immediate pesticide application if the owner or, if applicable, the tenant requests that the pesticide be applied before the 48-hour notice of the pesticide product proposed to be used.
(ii) With respect to an owner or, if applicable, a tenant entering into an oral agreement for immediate pesticide application, the association or authorized agent, no later than the time of pesticide application, shall leave the written notice specified in paragraph (1) in a conspicuous place in the separate interest or at the entrance of the separate interest in a manner in which a reasonable person would discover the notice.
(iii) If any owner or, if applicable, any tenant of a separate interest or an owner or, if applicable, a tenant of an adjacent separate interest is also required to be notified pursuant to this subparagraph, the association or authorized agent shall provide that person with this notice as soon as practicable after the oral agreement is made authorizing immediate pesticide application, but in no case later than commencement of application of the pesticide.
(6) A copy of a written notice provided pursuant paragraph (1) shall be attached to the minutes of the board meeting immediately subsequent the application of the pesticide.
Woodridge Escondido Property Owners Association v. Nielson
[Architectural Control] A HOA’s architectural committee does not have the authority to approve an improvement which is in violation of the CC&Rs.
Joseph J. Rego for Defendant and Appellant.
Feist, Vetter, Knauf and Loy, Alan H. Burson and Lisa Frazee Morgosh for Plaintiff and Respondent. [561]
OPINION
NARES, ACTING P. J.-
This case involves a dispute between a homeowners association and a homeowner regarding the construction of a wooden deck over an easement. Plaintiff Woodridge Escondido Property Owners Association (association) managed a planned residential development known as Woodridge in Escondido. Defendant Paul Nielsen owned a home in Woodridge and had a side yard easement over the adjoining property of his [562] neighbor, Virginia Kendall. The declaration of covenants, conditions and restrictions (CC&R’s) expressly prohibited the installation of “any permanent fn. 1 Nielsen refused the offer. The association brought this action for injunctive and declaratory relief against him, seeking an order requiring him to remove the encroaching portion of the deck. The association also recorded a notice of pendency of action (lis pendens). fn. 2 structure other than irrigation systems” on the easement. (Italics added.) After he received permission from Woodridge’s architectural committee, Nielsen constructed a wooden deck that encroached upon the easement. The association’s board of directors later found that the architectural committee had erroneously approved the construction of the deck, ordered Nielsen to remove the portion of the deck that encroached upon the easement, and offered to pay for the removal cost.
The court granted the association’s motion for summary judgment and its motion for attorney fees. After the court issued an order granting Nielsen’s motion to expunge the lis pendens, the association petitioned for writ relief (Woodridge Escondido Property Owners Assn. v. Superior Court/Nielsen (Apr. 26, 2004, D043860) [nonpub. opn.]). This court granted the petition and issued a peremptory writ directing the court to vacate that order and enter an order denying Nielsen’s motion.
Nielsen appeals the summary judgment and the order granting the association’s motion for attorney fees. Nielsen also purports to appeal from the order granting his motion to expunge the lis pendens, and he requests “review” of this court’s writ decision. For reasons we shall explain, we affirm the summary judgment and award of attorney fees in favor of the association and conclude that we have no authority to either reach the merits of Nielsen’s purported appeal of the expungement order or review this court’s final writ decision.
FACTUAL AND PROCEDURAL BACKGROUND fn. 3
The homes in the Woodridge Escondido development (development) are a type known as “zero lot line.” One exterior side wall of each home is built on one of the side yard property lines of the lot on which the home is located [563] (the lot on which the home is located is sometimes referred to as the dominant tenement). Each lot has a five-foot easement over the side yard of the adjacent lot that belongs in fee to the owner of that neighboring lot (which is sometimes referred to as the servient tenement).
A. CC&R’s
Article IV (Architectural Control) of the subject CC&R’s requires written approval of all “structure[s] or improvement[s]” to be built or installed on any lot in the development, and provides:
“No building, fence, wall, patio, patio cover or other structure or improvement . . . shall be commenced, erected, placed, installed or altered upon any Lot until the location and the complete plans and specifications . . . have been submitted to and approved in writing as to . . . location to surrounding structures . . . by the Board, or by the architectural committee composed of at least three . . . and not more than [five] representatives from the membership of the Association appointed by and serving at the pleasure of the Board. All or any number of the members of the architectural committee may be members of the Board. In the event no architectural committee is named, the Board shall serve as the architectural committee. . . .” (Italics added.)
Article X, section 1, which pertains to the enforcement of the CC&R’s, declares that a violation of the CC&R’s is a nuisance for which the association and “any owner” may seek a remedy:
“The Association and any owner shall have the right to enforce, by any proceedings at law or in equity, all restrictions, conditions, covenants and reservations now or hereafter imposed by the provisions of [these CC&R’s]. . . . The result of every act or omission whereby any covenant contained in [these CC&R’s] is violated in whole or in part is hereby declared to be a nuisance, and every remedy against nuisance, either public or private, shall be applicable against every such act or omission. . . .” (Italics added.)
Article X, section 8(c), which is of central importance in this appeal, limits use of side yard easements in the development and prohibits the owners of dominant tenements from installing “any permanent structure other than irrigation systems” on appurtenant side yard easements.
Article X, section 9 (Litigation) of the CC&R’s contains an attorney fees provision that authorizes the prevailing party in litigation commenced by the association or any homeowner to recover costs of suit and reasonable attorney fees. [564]
B. Nielsen’s Lot and Deed Restrictions
Nielsen owns lot 64 in the development. Lot 64 is subject to the CC&R’s and is located at 2234 Hilton Head Glen in the City of Escondido. The deed transferring title of the property to Nielsen (deed) described the “easement appurtenant to lot 64 on, over and across that portion of” the neighboring lot (lot 63) and, like article X, section 8(c) of the CC&R’s, prohibited Nielsen from using the easement for the installation of “any permanent structure other than irrigation systems”:
“The owner of Lot 64 may use the easement granted herein for access, recreation and landscaping (including irrigation systems) purposes only and shall not use the easement in violation of any law or for the installation or maintenance of any permanent structure, other than irrigation systems. . . .” (Italics added.)
C. Nielsen’s Deck and Hot Tub fn. 4
Nielsen built a 17- by 21-foot deck with a full-size hot tub that extended into the five-feet-wide side yard easement over the adjacent side yard of the neighboring lot (lot 63) owned by Virginia Kendall. fn. 5 Two members of the architectural committee had approved Nielsen’s architectural approval request form pertaining to the deck.
The association’s board of directors later found that the architectural committee had erroneously approved the construction of the deck, decided that the deck should be removed, and offered to pay Nielsen for the removal cost. fn. 6
D. Association’s Complaint and Lis Pendens
In April 2003 the association filed a complaint for injunctive and declaratory relief against Nielsen to enforce the CC&R’s and the provisions of the [565] deed pertaining to the easement. In the prayer of the complaint, the association sought a declaration of the parties’ rights and obligations under the CC&R’s, and an order requiring Nielsen to remove the portion of the deck that was encroaching on the subject easement. The association also recorded and served on Nielsen a notice of pendency of action (lis pendens).
E. Association’s Motion for Summary Judgment and Nielsen’s Motion To Expunge Lis Pendens
The association filed a motion for summary judgment. Nielsen filed a motion to expunge the lis pendens. After hearing argument, the court issued an order granting summary judgment for the association. The court found “no triable issue as to whether [Nielsen] violated the CC&Rs by constructing a permanent structure on the easement.” (Italics added.) The court also found as a matter of law that “the deck constitute[d] a permanent structure within the meaning of the CC&Rs.” (Italics added.) Furthermore, the court found that to the extent Nielsen raised the relative hardship doctrine in opposing summary judgment, “no evidence has been submitted in support of the application of this doctrine.”
The court also issued an order granting Nielsen’s motion to expunge the lis pendens. In expunging the lis pendens, the court confirmed its earlier tentative ruling that provided in part:
“The court finds that the [association’s] complaint failed to state a real property claim as defined in [Code of Civil Procedure fn. 7 ] section 405.4.[ fn. 8 ] Although the complaint alleges that [Nielsen’s] deck encroaches upon an easement, the court finds that the complaint does not affect possession of real property since a judgment in favor of [the association] will merely require removal of personal property, to wit, the deck.” (Italics added.)
F. This Court’s Writ Directing the Court To Vacate Its Order Expunging the Lis Penden (D043860), and the Supreme Court’s Rejection of Nielsen’s Petition for Review
The association filed a writ petition in this court (case No. D043860) challenging the expungement of the lis pendens on the grounds that the definition of “real property claim” in section 405.4 (see fn. 8, ante) included [566] “the use of an easement identified in the pleading” and that in the summary judgment proceeding the association had established the probable validity of its claim against Nielsen.
In an unpublished opinion filed in April 2004 (Woodridge Escondido Property Owners Assn. v. Nielsen, supra, D043860), this court concluded that the association was entitled to writ relief because it had asserted a “real property claim” against Nielsen within the meaning of section 405.4 by filing a complaint for declaratory and injunctive relief alleging that Nielsen violated the CC&R’s by constructing a deck in the restricted area of the side yard easement. This court reasoned that “[w]hether or not the deck [was] labeled personal property, a fixture or anything else, the association’s claim against Nielsen [was] for his use (misuse) of the side yard easement.” This court ordered the issuance of a writ directing the court to vacate its order granting the expungement, enter a new order denying Nielsen’s motion to expunge the lis pendens, and entertain any motion for reasonable attorney fees and costs the association might bring pursuant to section 405.38. In July 2004, the superior court issued an order vacating the order granting Nielsen motion to expunge the lis pendens and entered a new order denying that motion.
G. Attorney Fees Award, Judgment, and Appeal
As the prevailing party on its action to enforce the CC&R’s, the association brought a motion for attorney fees, which Nielsen opposed. The court issued an order (the attorney fees order) granting the motion and awarding reasonable attorney fees to the association in the amount of $9,672.35. The award did not include attorney fees incurred by the association in the writ petition proceeding in this court (case No. D043860, discussed, ante).
On March 25, 2004, the court entered judgment in favor of the association. Nielsen’s timely appeal from the judgment and attorney fees order followed.
DISCUSSION
A. Summary Judgment
We first address Nielsen’s appeal of the summary judgment entered in favor of the association.
- Background and Nielsen’s contentions
In granting summary judgment in favor of the association, the court found no triable issue of material fact as to whether Nielsen violated the CC&R’s by constructing a permanent structure on the side yard easement on Kendall’s [567] property. The court also found that the deck was a permanent structure within the meaning of the CC&R’s as a matter of law and that, to the extent Nielsen raised the relative hardship doctrine (discussed, post) in opposing summary judgment, he had submitted no evidence in support of the application of that doctrine.
Nielsen does not dispute that his deck extended over the side yard easement on Kendall’s property. He contends the summary judgment should be reversed because (1) there is no evidence to show the deck was a permanent structure within the meaning of the CC&R’s; (2) there are triable issues of material fact whether the deck was a permanent structure in violation of article X, section 8(c) of the CC&R’s, and whether the hot tub motor caused any vibration in Kendall’s house; (3) there are also triable issues of material fact as to whether he was required to seek approval by a three-member panel of the architectural committee, whether “the Board [sic][ fn. 9 ] erroneously approved [his] request [to build the deck],” whether his architectural approval request form was erroneously approved by the architectural committee, and whether that form was incomplete; (4) the association “act[ed] in an arbitrary manner by directing [him] to remove the deck extending over the easement, soon after his application was approved”; (5) the association’s claim that Nielsen’s hot tub caused a nuisance on Kendall’s property is based on insufficient evidence; (6) the relative hardship doctrine should be applied because there is nothing to show that the association, in bringing this action for injunctive and declaratory relief “based on a breach of the CC&Rs and the deck and hot tub causing a nuisance to [Kendall’s] residence,” has been irreparably damaged; and (7) the association denied Nielsen’s right to a hearing before the board of directors approved a motion requesting him to remove the portion of the deck that extended over the easement.
- Standard of review
[1] On an appeal from a grant of summary judgment, we independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler).) “In performing our de novo review, we must [568] view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his] evidentiary submission while strictly scrutinizing [the prevailing party’s] own showing, and resolving any evidentiary doubts or ambiguities in [favor of the losing party].” (Id. at p. 768.)
[2] “[T]he party moving for summary judgment [(here the association)] bears the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar), fn. omitted.) “[A] plaintiff bears the burden of persuasion that ‘each element of’ the ’cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto. ([] § 437c, subd. (o)(1).)” (Aguilar, supra, 25 Cal.4th at p. 850.)
If the moving plaintiff meets its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, the burden shifts to the defendant (here Nielsen) “to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid., fn. omitted.)
- Analysis
[3] The key factual issue in this case is whether Nielsen’s deck, which encroached upon the side yard easement on Kendall’s property, violated the provisions of article X, section 8(c) of the CC&R’s because it was a permanent structure prohibited by those provisions. For reasons we now discuss, we conclude the association met its initial burden of production to demonstrate that the deck was a permanent structure, and thus met its burden to make a prima facie showing of the nonexistence of any triable issue of material fact.
In support of its summary judgment motion, the association presented to the court a copy of the CC&R’s. The plain language of article X, section 8(c) of the CC&R’s limits use of the side yard easements in the development, including Nielsen’s easement on Kendall’s property over which he built his deck, and it prohibits the owners of dominant tenements (including Nielsen) from installing “any permanent structure other than irrigation systems” on the appurtenant side yard easements. That section provides:
“Each side yard easement may be used by the Owner(s) of the Dominant Tenement to which [569] it is appurtenant for access, landscaping (including irrigation systems) and recreational purposes only. The Owner(s) of the Dominant Tenement shall not use the appurtenant side yard easement in violation of any law or for the installation or maintenance of any permanent structure other than irrigation systems. . . .” (Italics added.)
The association also submitted authenticated photocopies of color photographs showing the location and construction details of the deck that abutted the house of Nielsen’s neighbor, Kendall (the owner of the servient tenement), as well as a declaration by Kendall, who described the deck as “a wooden deck structure [constructed] over the easement on my property which abuts my house and completely covers the drainage culvert established by the builder.” Kendall also stated in her declaration that “the legs of the deck are buried into the ground and it is attached to his house.”
[4] Nielsen challenges Kendall’s declaration, claiming that it “is nothing more than hearsay because she was not a party to the action against [him].” This claim is unavailing. Section 437c, subdivision (b)(5) provides that evidentiary objections not made at the hearing on a summary judgment motion “shall be deemed waived.” Here, Nielsen asserted his hearsay objection to Kendall’s declaration in his written response to the association’s separate statement of undisputed material facts. However, a mere objection is insufficient. To preserve an evidentiary objection for appellate review, the objecting party must also obtain a ruling on the objection from the trial court. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186, fn. 1 [evidentiary objections deemed waived because “the record contain[ed] no rulings on those objections”], disapproved on another point in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19.) Here, Nielsen has failed to show that the court ruled on his hearsay objection to Kendall’s declaration, and our review of the record discloses no such ruling. Accordingly, we deem Nielsen’s evidentiary objection waived and view Kendall’s declaration as having been admitted in evidence as part of the record for purposes of this appeal. (Sharon P. v. Arman, Ltd., supra, at p. 1186, fn.1.)
We reject Nielsen’s contention that there is “no evidence to demonstrate the deck [was] a permanent fixture.” Neither the CC&R’s nor Nielsen’s grant deed fn. 10 define the term “permanent fixture.” The Oxford English Dictionary [570] Online (OED Online), however, defines “permanent” as “[c]ontinuing or designed to continue indefinitely without change; abiding, lasting, enduring; persistent.” fn. 11
Here, the association’s photographic evidence and Kendall’s declaration establish that because Nielsen’s deck was attached to his house and its supporting legs or posts were buried in the ground, it was “designed to continue indefinitely without change” and was constructed to last or endure. Nielsen’s contention that the deck was not permanent because it could be (and has been) removed, is unavailing. As already noted, article X, section 8(c) of the CC&R’s prohibits the owner of a dominant tenement (in this case, Nielsen) from constructing any permanent structure “other than irrigation systems” over an appurtenant side yard easement. The plain language of that section shows that for purposes of enforcing the CC&R’s, “permanent” and “removable” are not mutually exclusive terms. Although irrigation pipes and fixtures, like a deck, can be removed from an easement, they (like a deck) are designed to continue indefinitely without change, and thus are no less “permanent” than a deck. Article X, section 8(c) of the CC&R’s, however, like Nielsen’s grant deed, provides an exception permitting the construction of such permanent irrigation systems on appurtenant side yard easements.
We thus conclude that the association met its burden of producing evidence showing that the deck was permanent within the meaning of article X, section 8(c) of the CC&R’s. Accordingly, we also conclude that the association met its burden of showing that Nielsen’s deck was a prohibited permanent structure that encroached upon the appurtenant side yard easement on Kendall’s property in violation of that section of the CC&R’s.
Because the association met its burden of producing evidence showing that Nielsen’s construction of the deck on the easement on Kendall’s property was a violation of the CC&R’s, we further conclude it also met its burden of producing evidence showing that the encroaching portion of the deck was a nuisance within the meaning of article X, section 1 of the CC&R’s, which provides in part that “[t]he result of every act or omission whereby any covenant contained in [these CC&R’s] is violated in whole or in part is hereby declared to be a nuisance” (italics added), and “every remedy against nuisance, either public or private, shall be applicable against every such act or omission. . . .” (Italics added.) That section also expressly authorizes the [571] association to enforce the CC&R’s “by any proceedings at law or in equity.” In sum, the association met its initial burden of producing evidence showing prima facie entitlement to the injunctive and declaratory relief for which it prayed in its complaint against Nielsen. fn. 12
Because the association met its initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, the burden shifted to Nielsen to make a prima facie showing of the existence of such an issue. (Aguilar, supra, 25 Cal.4th at p. 850.) In support of his written opposition to the summary judgment motion, Nielsen submitted his own declaration, which he cited several times in his written response to the association’s separate statement of undisputed material facts. In its order granting the summary judgment motion, however, the court found that Nielsen’s declaration failed to comply with section 2015.5, fn. 13 and ruled that it was inadmissible. fn. 14 On appeal, Nielsen does not contend the court erred in excluding his declaration.
Because Nielsen’s excluded declaration was the purported evidence that he offered to show the existence of a triable issue of material fact, we conclude [572] that he failed to meet his burden “to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
Nielsen’s contention that the association acted in an arbitrary manner by directing him to remove the encroaching portion of the deck soon after its construction was approved is unavailing because it is not supported by evidence, and because the undisputed facts show that the association, its board of directors, and its architectural committee had no authority to approve the construction of any permanent structure other than an irrigation system on the subject easement in violation of the express prohibitory provisions of article X, section 8(c) of the CC&R’s (discussed, ante).
Nielsen’s reliance on Deane Gardenhome Assn. v. Denktas (1993) 13 Cal.App.4th 1394 (Denktas) is misplaced. There, a homeowners association brought an action for injunctive relief and damages against two homeowners, alleging they had painted their house in violation of the association’s CC&R’s, which required the homeowners to obtain approval of the association’s architectural review committee before painting the exterior of the house and restricted the color choices to those the association approved. (Id. at pp. 1395-1396.) The homeowners hired a painter to paint their house green and pink, and the painter took paint samples to the association’s president to obtain his approval. The president approved the green paint color, but told the painter to “tone down” the pink color. (Id. at p. 1396.) When the painter returned with a different shade of pink, the president approved that color. (Ibid.) The trial court entered judgment in favor of the homeowner defendants, but denied their request for attorney fees. (Ibid.) The Court of Appeal reversed the order denying the homeowners’ request for attorney fees, reasoning that they were entitled to an award of reasonable attorney fees under the fees provision of the CC&R’s because they had successfully defended the suit that the homeowners association had brought against them, and thus they were the prevailing parties. (Id. at pp. 1398, 1399.)
Denktas is factually distinguishable in that the restrictive covenants in that case did not prohibit that which the president of the homeowners’ association approved: the [573] color of the paint that the homeowner defendants had used to paint the exterior of their house. (See Denktas, supra, 13 Cal.App.4th at p. 1396.) The restrictive covenants required the homeowners to obtain approval of the color they chose, and they obtained that approval. (Ibid.) Here, in contrast, the CC&R’s expressly prohibited that which the board of directors found the architectural committee had erroneously approved: the construction of a “permanent structure other than irrigation systems” (Nielsen’s deck) over the appurtenant side yard easement on Kendall’s property.
We reject Nielsen’s contention that the relative hardship doctrine (see Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 754 (Hirshfield)) fn. 15 it has suffered an irreparable injury. Nielsen cites Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 238, which held that a trial court has discretion to deny a mandatory injunction to remove an encroachment, and in exercising that discretion the court should balance or weigh the relative hardships. Nielsen also relies on Christensen, supra, 114 Cal.App.2d 554, and Hirshfield, supra, 91 Cal.App.4th 749, which he asserts are on point. should be applied because (he asserts) there is nothing to show that the association, in bringing this action for injunctive and declaratory relief “based on a breach of the CC&Rs and the deck and hot tub causing a nuisance to [Kendall’s] residence,” has been irreparably damaged. Nielsen is claiming that the association is not entitled to summary judgment because proof of irreparable injury is an element of a claim for injunctive relief and here the association is only suing on behalf of Nielsen’s neighbor, Kendall, and thus cannot show that
Nielsen, however, incongruously maintains that because he has removed the encroaching portion of the deck, “[t]he allegation regarding the removal of a portion of the deck that encroaches over the easement is no longer an issue.” Nielsen thus appears to concede that application of the relative hardship doctrine is a moot issue because the association’s claim for a mandatory injunction is now moot.
Assuming that the issue of the applicability of the relative hardship doctrine is not moot with respect to the association’s remaining claim for declaratory relief, Nielsen has presented no evidence with respect to the relative hardships that he claims should be balanced in this matter. As already discussed, Nielsen’s evidence primarily consisted of his own declaration (see fn. 14, ante), which the court, in a ruling Nielsen does not challenge, found [574] inadmissible. Even if Nielsen’s brief declaration were admissible, it contains no evidence regarding the relative hardships that he claims should be weighed.
The Christensen and Hirshfield cases, upon which Nielsen relies, are distinguishable in that neither case involved an action by a homeowners association authorized to remove an easement encroachment that violated the express provisions of applicable restrictive covenants. In Christensen, which involved a dispute between owners of adjoining parcels of real property in Santa Cruz, the plaintiff sought a mandatory injunction to compel removal of a cement abutment that the defendants had mistakenly constructed on the plaintiff’s land. (Christensen, supra, “114 Cal.App.2d at p. 555.) In Hirshfield, which involved a dispute between owners of adjoining parcels of real property in Bel-Air, the defendants’ cement block wall encroached upon the plaintiffs’ land. (Hirshfield, supra, “114 Cal.App.2d at p. 756.) As already noted, none of the plaintiffs in those cases was a homeowners association charged with the responsibility of enforcing valid restrictive covenants, and in neither case did the encroachment constitute a violation of such covenants.
[5] Also unavailing is Nielsen’s contention that the summary judgment should be reversed because the association denied him a hearing before the board of directors approved a motion requesting him to remove the portion of the deck that extended over the easement. Ordinarily, issues not raised in the trial court proceedings are waived. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2004) ¶ 1:44, p. 1-9 (rev. #1, 2002).) Here, a review of both Nielsen’s written opposition to the summary judgment motion and the reporter’s transcript of the oral argument on that motion shows that Nielsen did not raise this contention in the trial court, and thus he has waived this point. Were it necessary to reach the merits of this contention, we would conclude the record shows that Nielsen was present at the board of directors meeting at which the board approved the motion to direct him to remove the encroaching portion of his deck and that he participated in the proceedings and had an opportunity to be heard. Specifically, the board of directors’ October 15, 2002 minutes indicate that Nielsen was the president of the association at the time of the meeting, and the minutes referred to item No. 2230-34 HH on the agenda as “Problem re deck at 2234 abutting home at 2230, Nielsen and Kendall.” Those minutes also state:
“Paul [Nielsen] shared items in a title report which he felt were apropos. Mrs. Kendall stated her case, including not having access to the side of her home, noise from spa heater and what she called ‘illegality’ of a [575] permanent structure in the area she owned (servient tenement). She stated if she decided to sell, the buyer would not be able to get clear title. She also pointed out she was not advised of project in advance and had no opportunity to state her objections on the [architectural approval request form]. At this point Paul excused himself so that the Board could vote.” fn. 16
In sum, the record shows that Nielsen failed to meet his burden of presenting evidence establishing the existence of a triable issue of material fact, and the association met its burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. Accordingly, we affirm the summary judgment.
B. Attorney Fees Order
Nielsen also appeals the attorney fees order that awarded reasonable attorney fees in the amount of $9,672.35 to the association as the prevailing party in this matter. The record shows that the award was based on article X, section 9, of the CC&R’s, which provides in part that “[i]n the event the Association . . . shall commence litigation to enforce any of the Covenants, Conditions or Restrictions contained in [the CC&R’s], the prevailing party in such litigation shall be entitled to costs of suit and such sum for attorney’s fees as the Court may deem reasonable.” (Italics added.)
[6] “The most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 8:15, pp. 8-4 to 8-5 (rev. #1, 2004), italics omitted.) [7] As the appellant, Nielsen has the burden of presenting “argument and legal authority on each point raised on appeal.” (Id., ¶ 8:17.1, p. 8-5 (rev. #1, 2004).)
Although his appellant’s opening brief raises the issue of whether the association was entitled to an award of attorney fees in this matter, Nielsen fails to present any argument or legal authority regarding this issue in either that brief or his appellant’s reply brief. Accordingly, we presume the award of attorney fees was proper. As the prevailing party in the summary judgment proceeding, the association is entitled to recover reasonable attorney fees it has incurred both in the trial court proceedings and on appeal. [576]
C. Expungement Order and This Court’s Writ Decision
Last, Nielsen’s appellant’s opening brief states that he is also appealing from the court’s order granting his motion to expunge the lis pendens recorded by the association, and that he is requesting review of this court’s April 2004 decision in the writ petition proceeding (D043860) to issue a peremptory writ directing the court to vacate its expungement order and enter a new order denying Nielsen’s motion to expunge. fn. 17 Nielsen claims that the trial court properly expunged the lis pendens because the association failed to state a “real property claim” within the meaning of section 405.4 (the provisions of which are set forth in fn. 8, ante).
- Background
In granting Nielsen’s motion to expunge the lis pendens, the court found that although the association’s complaint alleged that Nielsen’s deck encroached upon an easement, the complaint failed to state a “real property claim” as defined in section 405.4 because it “[did] not affect possession of real property since a judgment in favor of [the association] will merely require removal of personal property, to wit, the deck.” (2AA 210, 320)! The association challenged the expungement by filing in this court a writ petition (case No. D043860), arguing that the definition of “real property claim” in section 405.4 included “the use of an easement identified in the pleading.”
In Woodridge Escondido Property Owners Assn. v. Superior Court/Nielsen, supra, D043860, this court concluded that the association was entitled to writ relief because it had asserted a real property claim against Nielsen within the meaning of section 405.4 by filing a complaint for declaratory and injunctive relief alleging that Nielsen violated the CC&R’s by constructing a deck in the restricted area of the side yard easement. This court explained that “[w]hether or not the deck [was] labeled personal property, a fixture or anything else, the association’s claim against Nielsen [was] for his use (misuse) of the side yard [577] easement.” Noting that Nielsen still had time to appeal the summary judgment, we also stated that “a lis pendens may remain on record while the appeal is pending. [Citation.]” Citing California Rules of Court, fn. 18 rule 24(b)(3), fn. 19 the opinion also stated that “the opinion is made final immediately as to this court.”
Nielsen sought to challenge this court’s writ decision by filing a petition for review with the California Supreme Court. In June 2004 the high court sent a letter to Nielsen’s counsel stating that it had considered Nielsen’s petition for review, but “ha[d] directed that the petition for review be returned unfiled.” We issued the remittitur on June 28, 2004.
- Analysis
[8] Under section 405.39, fn. 20 an order granting or denying a motion to expunge a lis pendens is not an appealable order. (See also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 2:259.2, p. 2-111 (rev. #1, 2001).) Thus, this court has no authority to review on appeal either the court’s initial order granting Nielsen’s motion to expunge the lis pendens (an order in Nielsen’s favor) or its subsequent order denying that motion following this court’s issuance of the peremptory writ and the remittitur.
This court also has no authority to review our writ decision in case No. D043860. As already noted, the opinion stated that it was “final immediately as to this court.” Nielsen challenged the decision by attempting to file a petition for review with the Supreme Court, which considered it and then returned it to him unfiled. Because the writ decision is final as to this court, we have no power to review it. (See also rule 24(b)(1) [“[e]xcept as otherwise provided in this rule, a Court of Appeal decision . . . is final in that court 30 days after filing”].) In sum, we affirm the summary judgment and award of attorney fees in favor of the association and conclude that we have no authority to either reach the merits of Nielsen’s purported appeal of an expungement order, or review this court’s final writ decision. [578]
DISPOSITION
We affirm the judgment and the attorney fees order. The association shall recover its costs and attorney fees on appeal. The cause is remanded to the trial court for a determination of the amount of reasonable attorney fees and costs on appeal the association shall recover from Nielsen under the provisions of article X, section 9, of the CC&R’s.
Haller, J., and O’Rourke, J., concurred.
FN 1. According to the parties on appeal, the portion of the deck that encroached upon the easement has been removed.
FN 2. “‘A lis pendens is a recorded document giving constructive notice that an action has been filed affecting title to or right to possession of the real property described in the notice.’ [Citation.]” (Kirkeby v. Superior Court 33 Cal.4th 642, 647.) (2004)
FN 3. The following background is based primarily on the facts that the parties acknowledge are undisputed, and this court’s prior opinion in this matter (Woodridge Escondido Property Owners Assn. v. Nielsen, supra,post. D043860), discussed,
FN 4. Nielsen asserts on appeal that he “recently removed the portion of the deck that extend[ed] over the [five-foot] easement,” and thus “[t]he allegation regarding the removal of a portion of the deck that encroach[ed] over the easement is no longer an issue.”
FN 5. Kendall, who is not a party to this appeal, states in her declaration supporting the association’s summary judgment motion that Nielsen’s deck was built “over the easement on [her] property,” and it “abut[ted] [her] house.” In his written opposition to that motion, Nielsen did not dispute that he constructed the deck over the side yard easement on Kendall’s property, but he disputed that the deck was a “permanent structure” and that it abutted Kendall’s house.
FN 6. As shown by its October 15, 2002 minutes, the board made the following determination: “That [homeowner] Nielsen remove the 5[-foot] encroachment on property owned by Kendall at 2230 [Hilton Head Glen], with Association to pay for the cost of removal, due to fact the Architectural Committee erred in giving approval. Work to be completed in 60 days. Board felt allowing encroachment would set a very harmful precedent.”
FN 7. All further statutory references are to the Code of Civil Procedure unless otherwise specified.
FN 8. Section 405.4 defines the term “real property claim” as “the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.” (Italics added.)
FN 9. The record shows that the architectural committee, not the board of directors, approved Nielsen’s request to build the deck, and the board of directors later overruled that approval and directed Nielsen to remove the encroaching portion of the deck. In support of his contention that the board of directors approved the deck, Nielsen relies on article IV of the CC&R’s, which provides in part that “[i]n the event no architectural committee is named, the Board shall serve as the architectural committee.” (Italics added.) Nielsen fails to cite any evidence in the record showing that no architectural committee was named in this matter.
FN 10. The grant deed, like article X, section 8(c) of the CC&R’s, prohibited Nielsen from using the appurtenant side yard easement on Kendall’s property for the installation of “any permanent structure, other than irrigation systems.”
FN 11. OED Online (2d. ed. 1989) < (as of Apr. 2005).
FN 12. Noting that he recently removed the portion of the deck that encroached upon the easement on Kendall’s property, Nielsen asserts that “[t]he [association’s] allegation regarding the removal of a portion of the deck that encroache[d] over the easement is no longer an issue.” The association agrees, and states that “[i]t is apparently the issue of declaratory relief concerning the rights and duties of the parties [that Nielsen] is now appealing.”
FN 13. Section 2015.5 provides: “Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California. . . .”
FN 14. Nielsen’s brief declaration stated: “I [NIELSEN] AM THE DEFENDANT IN THE ABOVE REFERENCED MATTER, AND DECLARE UNDER PENALTY OF PERJURY AS FOLLOWS: [¶] 1. I first became aware of the Lis Pendens on my property about two weeks ago when I attempted to secure a refinance through ‘World Savings.’ I wanted to place my financial affairs in order, especially since I am still recouping from the loss of my wife in April 2003. [¶] 2. As far as the deck is concerned this is not a permanent structure, and completely detachable. [¶] 3. I obtained approval of the Architectural Committee of the Association before the deck was built. [¶] 4. The deck does not interfere with my neighbor’s use, and in fact improved the value of our property as there was nothing but rock and dirt in the area the deck occupies. [¶] 5. My neighbor was aware at all times that I wanted to build this deck, and never once complained to me until this suit was filed about eight months ago. [¶] 6. The City of Escondido inspected the deck and stated no permit was required for the deck.” (Italics added.) Nielsen and his counsel signed and dated the declaration.
FN 15. The Hirshfield court explained that “[t]he doctrine we refer to as ‘relative hardship’ is the equitable balancing required by Christensen [v. Tucker (1952) 114 Cal.App.2d 554 (Christensen)] and related decisions. The case law and commentaries use various other labels, such as ‘”balancing of equities”‘ [citation], ‘balancing conveniences’ [citation], and ‘comparative injury’ [citation]. For consistency, we will call it the ‘relative hardship doctrine.'” (Hirshfield, supra, 91 Cal.App.4th at p. 754, fn. 1.)
FN 16. In light of the foregoing, we need not address Nielsen’s remaining contentions.
FN 17. In his appellant’s opening brief, Nielsen states: “There are three (3) specific trial court rulings [Nielsen] is seeking review on appeal. Because the court of appeal reversed a trial court ruling to expunge lis pendens on April 26, 2004, [Nielsen] is requesting the court review that decision and ask[s] the court to take judicial notice of [case No. D043860]. . . . The first order was entered on January 8, 2004, regarding [Nielsen’s] motion to expunge. . . .” (Italics added.) Nielsen also asserts that our “decision to reverse the trial court’s ruling . . . in Case No. D043860 . . . should also be reviewed.”
The record shows that the “first order” to which Nielsen refers is the superior court’s January 8, 2004 order granting his motion to expunge the lis pendens. The record also shows that on July 15, 2004, after we issued the remittitur in case No. D043860 on June 28 of that year, the trial court complied with the writ by entering an order that vacated its order granting Nielsen’s motion to expunge the lis pendens, and denied that motion. We thus presume that Nielsen is purporting to challenge the trial court’s post-remittitur order denying his motion to expunge, rather than the vacated order granting that motion.
FN 18. All further rule references are to the California Rules of Court.
FN 19. Rule 24(b)(3) provides in part: “If necessary to . . . promote the interests of justice, a Court of Appeal may order early finality in that the court of a decision granting a petition for a writ within its original jurisdiction . . . . The decision may provide for finality in that court on filing or within a stated period of less than 30 days.” (Italics added.)
FN 20. Section 405.39 provides: “No order or other action of the court under this chapter shall be appealable. Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate. The petition for writ of mandate shall be filed and served within 20 days of service of written notice of the order by the court or any party. The court which issued the order may, within the initial 20-day period, extend the initial 20-day period for one additional period not to exceed 10 days. A copy of the petition for writ of mandate shall be delivered to the clerk of the court which issued the order with a request that it be placed in the court file.” (Italics added.)
Peak Investments v. South Peak Homeowners Association, Inc.
[CC&R Amendments; Court Petition] Proposed HOA CC&R amendments must be approved by at least a simple majority of the total votes in a HOA before a trial court may reduce the approval requirement set in the CC&Rs.
Borton, Petrini & Conron, Matthew J. Trostler, Casandra P. Cushman, Hickey & Petchul, and Dirk Petchul for Appellant.
Garrison & McInnis, Gregory M. Garrison, Amelia A. McDermott, and Andrew R. Chivinski for Respondent.
OPINION
SILLS, P. J.-
South Peak Homeowners Association (the Association) appeals from the trial court’s order granting a homeowner’s petition to reduce the percentage of homeowner votes needed to approve an amendment to the declaration of covenants, conditions, and restrictions (CC&Rs). The Association claims the trial court improperly reduced the percentage to less than a simple majority of the homeowner votes. We find the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.) requires that a proposed amendment to the CC&Rs be approved by at least a simple majority of the total votes in the homeowners association before the trial court can reduce the percentage of votes set by the CC&Rs. Accordingly, we reverse.
FACTS
Peak Investments and Norman and Rita Lesman (the Lesmans) own lot 43 in South Peak, a planned community of custom homes in Laguna Niguel comprising 63 lots. The Association is governed by CC&Rs recorded in April 1984. In 1986, the Association amended the CC&Rs to change the building heights for each lot (CC&Rs, section 6.7.1) and the setback provisions for each lot (CC&Rs, section 6.7.2). These changes were reflected on Exhibit 1 to the amendment, entitled “Height and Setback Limitations,” which listed on a chart each lot number, its maximum height, its minimum setback from front lot line, its minimum setback from side lot lines, and its minimum setback from rear lot lines. The setback limit for lot 43’s side lot lines was listed as “20-7,” meaning the limit was 20 feet total minimum setback distance for both sides of the lot and 7 feet minimum setback distance for each side of the lot. The second page of Exhibit 1 started with listing lot 31; all the lots from lot 31 through 55 had sideline setbacks of 25-7 except lot 43.
The CC&Rs were amended again in 1990 to modify the building height limitations by removing the 35 foot cap (CC&Rs, section 6.7.1). The amended section refers to Attachment 2, which appears to be a retyped version of Exhibit 1 to the 1986 amendment. The only difference in the two is the minimum sideline setback for lot 43; that number was changed from 20-7 to 25-7.
The Lesmans purchased lot 43 in June 2001 and apparently wanted to build a larger structure than the 20-7 setback allowed. They contacted the lawyer who prepared the 1990 amendment, Edward Coss, who wrote to the Association’s Board of Directors in May 2002, opining that the change in the sideline setback on lot 43 was “an inadvertent typographical error.” Coss explained, “I can find no record or other communication to support the change in the side lot lines; in fact, the purpose of Amendment Number Three [1366] was limited to building height alterations.” Coss enclosed a proposed amendment to the CC&Rs to correct the error for the Association’s approval.
For whatever reason, the Board declined to effect the execution of the amendment. In July 2004, the Lesmans proposed an amendment to change the setback for their lot. In accordance with the bylaws, they caused a special meeting of the homeowners to be called to vote on the proposed amendment. The homeowners received a copy of the proposed amendment, which explained the requested change from 25-7 to 20-7; they also received a ballot allowing them to approve or disapprove the amendment or abstain from voting. The ballot noted, “[A]t least 25 percent (25%) of the voting power of the membership (16/63) must be present in person or by proxy in order to achieve a quorum. The written approval of at least 2/3rds of the Members (42 of 63) must be received for the proposed amendment to be approved.”
The meeting was held on July 29, 2004, with seventeen homeowners physically present. Thirty-two ballots were cast: Twenty-one voted in favor of the amendment, and eleven voted against it. Because an amendment to the CC&Rs requires the votes of two-thirds of the lot owners (CC&Rs, section 14.2), the proposed amendment failed.
The Lesmans petitioned the superior court to reduce the percentage necessary to amend the CC&Rs because the CC&Rs required a “supermajority” to amend and not enough members attended the special meeting, and to confirm the amendment as validly approved. (Civ. Code, § 1356.) The trial court granted the petition, finding that more than 50 percent of the voters voted in favor of the amendment, as required by the statute. “”[I]t seems to me . . . that this is what [section] 1356 was meant to apply to, the situation where you can’t get enough people interested to be there to provide for super majority. [¶] It isn’t like enough people came and voted against it. There just isn’t [sic] that many votes. . . . [T]he only question here is whether 50 percent of the voters voted in favor of the amendment. It appears to me they did, 21 out of 32 or 33.” The court also found the amendment was reasonable, another statutory requirement. The Association appeals from the order granting the petition.
DISCUSSION
[1] Civil Code section 1356, part of the Davis-Stirling Common Interest Development Act (the Act), provides that a homeowners’ association, or any member, may petition the superior court for a reduction in the percentage of affirmative votes required to amend the CC&Rs if they require approval by “owners having more than 50 percent of the votes in the association . . . .” [1367] (Civ. Code, § 1356, subd. (a).) fn. 1 The court may, but need not, grant the petition if it finds all of the following: Notice was properly given; the balloting was properly conducted; reasonable efforts were made to permit eligible members to vote; “[o]wners having more than 50 percent of the votes, in a single class voting structure, voted in favor of the amendment”; and “the amendment is reasonable.” (Civ. Code, § 1356, subd. (c)(1)-(5).)
On appeal, the Association contends the trial court erred in making an affirmative finding that more than 50 percent of the owners voted in favor of the amendment. It argues the statute requires an affirmative vote by more than 50 percent of all owners, whether or not they attended the meeting (i.e., 32 out of 63), while the trial court mistakenly construed the requirement to be merely more than 50 percent of the owners who attended the meeting (i.e., 17 out of 32).
[2] In construing a statute, we must ascertain the intent of the Legislature. The first step in the process is to look at the plain meaning of the words used. (Villa de las Palmas Homeowners Assoc. (2004) 33 Cal.4th 73, 82.) “If there is no ambiguity in the language of the statute, ‘then the Legislature is presumed to have meant what it said.'” (Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 358.)
The phrase in question here is “owners having more than 50 percent of the votes,” appearing in section 1356, subdivision (c)(4). The phrase is unqualified by language indicating “the votes” are those cast at a meeting; in the absence of such qualification, it must mean total votes in the Association.
Our interpretation is buttressed by language in other sections of the Act that carefully define votes cast at a meeting. For example, section 1355.5 allows the board of directors of an association to adopt an amendment to the governing documents deleting “any provision which is unequivocally designed and intended, or which by its nature can only have been designed or intended, to facilitate the developer in completing the construction or marketing of the development.” (§ 1355.5, subd. (a).) However, the board may not adopt such an amendment “without the approval of the owners, casting a majority of the votes at a meeting or election of the association constituting a quorum . . . . For the purposes of this section, “quorum” means more than 50 percent of the owners who own no more than two separate interests in the development.” (§ 1355.5, subd. (d).) Likewise, a rule change by the board of directors of an association may be reversed “by the affirmative vote of a majority of the votes represented and voting at a duly held meeting at which [1368] a quorum is present (which affirmative votes also constitute a majority of the required quorum) . . . .” (§ 1357.140, subd. (c).) And absent statutory notice (§ 1365), the board of directors of an association cannot levy assessment increases without the “approval of owners, constituting a quorum, casting a majority of the votes at a meeting or election of the association . . . .” (§ 1366, subds. (a) & (b).)
If a declaration fails to include provisions permitting its amendment, the Act provides that it may be amended after, inter alia, “the approval of owners representing more than 50 percent . . . of the separate interests in the common interest development has been given . . . .” (§ 1355, subd. (b).) Thus, it appears the Legislature made a conscious decision to provide that a bare majority of all the members would be the minimum required to amend the declaration. The comments to the Restatement of Property explain, “The declaration for a common-interest community functions like a constitution for the community. Like a constitution, the declaration should not be subject to change upon temporary impulse. Unlike rules, which can be adopted with a simple majority of votes cast, amendments require at least a majority of all votes that could be cast, and many types of amendment require substantially more.” (Rest.3d, Property, Servitudes (2000) § 6.10, com. a.)
The Restatement includes a section entitled “Judicial Power to Excuse Compliance with Requirements of the Governing Documents.” The section provides that “[a] court may excuse compliance with any of the following provisions in a governing document if it finds that the provision unreasonably interferes with the community’s ability to manage the common property, administer the servitude regime, or carry out any other function set forth in the declaration, and that compliance is not necessary to protect the legitimate interests of the members or lenders holding security interests: [¶] (4) a provision requiring approval of more than two-thirds of the voting power to adopt an amendment . . . .” (Rest.3d, Property, Servitudes, supra, § 6.12.) The section’s notes state, “The rule that quorum and supermajority requirements may be waived if necessary to permit adoption of amendments necessary to continued existence and proper functioning of the association is based on California Civil Code §§ 1356 and 1357, although it differs in some particulars.” (Id., reporter’s notes.) Notably, the Restatement section does not require the court to make threshold findings before it can exercise its discretion, as does section 1356.
There is no case law directly on point. The closest is Blue Lagoon Community Assoc. v. Mitchell (1997) 55 Cal.App.4th 472, in which this court held that a proceeding pursuant to section 1356 was not “adversarial” so as to entitle the party successfully opposing the petition to attorney fees as the prevailing party in an action to enforce the governing [1369] documents of a common interest development. (§ 1354, subd. (c).) In so holding, this court commented: “[T]he purpose of Civil Code section 1356 is to give a property owners’ association the ability to amend its governing documents when, because of voter apathy or other reasons, important amendments cannot be approved by the normal procedures authorized by the declaration. [Citation.] In essence, it provides the association with a safety valve for those situations where the need for a supermajority vote would hamstring the association.” (Id. at p. 477.)
[3] It appears the legislative intent is to require at least a simple majority of all members of an association to amend the CC&Rs. Accordingly, the trial court erred in finding that the affirmative votes of 21 out of 63 owners met the statutory prerequisite that owners having more than 50 percent of the vote voted in favor of the amendment. Because we reach this conclusion, we need not discuss the Association’s contention that the amendment was not reasonable. We observe, however, that it appears the Lesmans may be merely attempting to correct a scrivener’s error. Nothing in this opinion shall be construed to hamper their ongoing efforts in that regard.
DISPOSITION
The order granting the petition is reversed. In the interest of justice, each party shall bear its own costs.
Rylaarsdam, J., and Fybel, J., concurred.
FN 1. All statutory references are to the Civil Code
SB 944 (Committee on Transportation and Housing). Housing Omnibus.
The Housing Omnibus bill provides annual “clean up” legislation to make mostly non-substantive changes to the law.
Current Status: Chaptered
FindHOALaw Quick Summary:
Under existing law, an amendment to the CC&Rs is generally effective after certain requirements are met, except as provided. This bill would amend Civil Code § 4270 to clarify that the exceptions for approving, certifying, or recording an amendment includes alternative procedures established in Sections 4225, 4230, 4235, and 4275. This bill would also renumber Civil Code § 4750.10, pertaining to clotheslines and drying racks, to 4753. Existing law also requires the association distribute to its members an Assessment and Reserve Funding Disclosure Summary form containing specific information regarding funding for the repair and replacement of major components during the next 30 years. This bill would amend Civil Code § 5570 to correct a typo in the reference to the statutory definition of “major component” from § 55530 to § 5550.
**UPDATE: SB 944 was signed by the Governor on September 27, 2016. It’s changes to the law will become operative on January 1, 2017.
View more info on SB 944from the California Legislature's website
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SB 918 (Vidak). Common interest developments.
Would require owners to annually provide the association with written notice of the mailing address(es) to which notices from the association are to be delivered. If an owner fails to provide notice of a mailing or secondary address, the property address shall be deemed the mailing address for individual notices.
Current Status: Chaptered
FindHOALaw Quick Summary:
This bill would add Civil Code § 4041 to require the owners of a separate interest to annually provide the association with written notice of all of the following: 1) the mailing address to which notices from the association are to be delivered, 2) a secondary address to which notices from the association are to be delivered, 3) the name and address of their legal representative, if any, including any person with power of attorney or other person who can be contacted in the event of the owner’s extended absence, and 4) whether the property is owner-occupied, rented, vacant, or undeveloped land. The association shall solicit the annual disclosure and update the association’s records at least 30 days prior to making the association’s annual disclosure in accordance with Civil Code § 5300. If an owner fails to make these disclosures, the property address shall be deemed the mailing address.
**UPDATE: SB 918 was signed by the Governor on September 28, 2016. It’s changes to the law will become operative on January 1, 2017.
View more info on SB 918from the California Legislature's website
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AB 2362 (Chu). Common interest developments: Pesticide application.
Would require the association to provide notice to residents when pesticides are to be applied to the separate interests or common area by unlicensed pest control operators.
Current Status: Chaptered
FindHOALaw Quick Summary:
This bill would add Civil Code § 4777 to require an association to notify the residents of a separate interest, along with the residents of any impacted adjacent separate interests, when pesticides are to be applied to the separate interest or common area by an unlicensed pest control operator. The notice must contain the pest(s) to be controlled, the name and brand of the pesticide product to be used, the approximate date, time, and frequency with which the pesticide will be applied, in addition to specified verbiage included in the Code. Notice must be provided at least 48 hours prior to application by posting the notice in a conspicuous location within the common area in which the pesticide is to be applied. If a posted notice is not practicable, notice shall be provided by individual delivery. If the pest poses an immediate threat to health and safety, thereby making prior notice unreasonable, notice must be posted as soon as reasonably practicable, but not later than one hour after the pesticide is applied. A copy of the notice shall be attached to the minutes of the subsequent board meeting immediately following the application.
**UPDATE: AB 2362 was signed by the Governor on September 13, 2016. Its changes to the law will become operative on January 1, 2017.
View more info on AB 2362from the California Legislature's website
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Civil Code Section 1708.8. Invasion of Privacy.
(a) A person is liable for physical invasion of privacy when the person knowingly enters onto the land or into the airspace above the land of another person without permission or otherwise commits a trespass in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.
(b) A person is liable for constructive invasion of privacy when the person attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.
(c) An assault or false imprisonment committed with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff is subject to subdivisions (d), (e), and (h).
(d) A person who commits any act described in subdivision (a), (b), or (c) is liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section. This person may also be liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the person shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section. A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).
(e) A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate any provision of subdivision (a), (b), or (c) is liable for any general, special, and consequential damages resulting from each said violation. In addition, the person that directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate this section shall be liable for punitive damages to the extent that an employer would be subject to punitive damages pursuant to subdivision (b) of Section 3294. A person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).
(f)
(1) The transmission, publication, broadcast, sale, offer for sale, or other use of any visual image, sound recording, or other physical impression that was taken or captured in violation of subdivision (a), (b), or (c) shall not constitute a violation of this section unless the person, in the first transaction following the taking or capture of the visual image, sound recording, or other physical impression, publicly transmitted, published, broadcast, sold, or offered for sale the visual image, sound recording, or other physical impression with actual knowledge that it was taken or captured in violation of subdivision (a), (b), or (c), and provided compensation, consideration, or remuneration, monetary or otherwise, for the rights to the unlawfully obtained visual image, sound recording, or other physical impression.
(2) For the purposes of paragraph (1), “actual knowledge” means actual awareness, understanding, and recognition, obtained prior to the time at which the person purchased or acquired the visual image, sound recording, or other physical impression, that the visual image, sound recording, or other physical impression was taken or captured in violation of subdivision (a), (b), or (c). The plaintiff shall establish actual knowledge by clear and convincing evidence.
(3) Any person that publicly transmits, publishes, broadcasts, sells, or offers for sale, in any form, medium, format, or work, a visual image, sound recording, or other physical impression that was previously publicly transmitted, published, broadcast, sold, or offered for sale by another person, is exempt from liability under this section.
(4) If a person’s first public transmission, publication, broadcast, or sale or offer for sale of a visual image, sound recording, or other physical impression that was taken or captured in violation of subdivision (a), (b), or (c) does not constitute a violation of this section, that person’s subsequent public transmission, publication, broadcast, sale, or offer for sale, in any form, medium, format, or work, of the visual image, sound recording, or other physical impression, does not constitute a violation of this section.
(5) This section applies only to a visual image, sound recording, or other physical impression that is captured or taken in California in violation of subdivision (a), (b), or (c) after January 1, 2010, and shall not apply to any visual image, sound recording, or other physical impression taken or captured outside of California.
(6) Nothing in this subdivision shall be construed to impair or limit a special motion to strike pursuant to Section 425.16, 425.17, or 425.18 of the Code of Civil Procedure.
(7) This section shall not be construed to limit all other rights or remedies of the plaintiff in law or equity, including, but not limited to, the publication of private facts.
(g) This section shall not be construed to impair or limit any otherwise lawful activities of law enforcement personnel or employees of governmental agencies or other entities, either public or private, who, in the course and scope of their employment, and supported by an articulable suspicion, attempt to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of any conduct to obtain evidence of suspected illegal activity or other misconduct, the suspected violation of any administrative rule or regulation, a suspected fraudulent conduct, or any activity involving a violation of law or business practices or conduct of public officials adversely affecting the public welfare, health, or safety.
(h) In any action pursuant to this section, the court may grant equitable relief, including, but not limited to, an injunction and restraining order against further violations of subdivision (a), (b), or (c).
(i) The rights and remedies provided in this section are cumulative and in addition to any other rights and remedies provided by law.
(j) It is not a defense to a violation of this section that no image, recording, or physical impression was captured or sold.
(k) For the purposes of this section, “for a commercial purpose” means any act done with the expectation of a sale, financial gain, or other consideration. A visual image, sound recording, or other physical impression shall not be found to have been, or intended to have been, captured for a commercial purpose unless it is intended to be, or was in fact, sold, published, or transmitted.
(l)
(1) For the purposes of this section, “private, personal, and familial activity” includes, but is not limited to:
(A) Intimate details of the plaintiff’s personal life under circumstances in which the plaintiff has a reasonable expectation of privacy.
(B) Interaction with the plaintiff’s family or significant others under circumstances in which the plaintiff has a reasonable expectation of privacy.
(C) If and only after the person has been convicted of violating Section 626.8 of the Penal Code, any activity that occurs when minors are present at any location set forth in subdivision (a) of Section 626.8 of the Penal Code.
(D) Any activity that occurs on a residential property under circumstances in which the plaintiff has a reasonable expectation of privacy.
(E) Other aspects of the plaintiff’s private affairs or concerns under circumstances in which the plaintiff has a reasonable expectation of privacy.
(2) “Private, personal, and familial activity” does not include illegal or otherwise criminal activity as delineated in subdivision (g). However, “private, personal, and familial activity” shall include the activities of victims of crime in circumstances under which subdivision (a), (b), or (c) would apply.
(m)
(1) A proceeding to recover the civil fines specified in subdivision (d) or (e) may be brought in any court of competent jurisdiction by a county counsel or city attorney.
(2) Fines collected pursuant to this subdivision shall be allocated, as follows:
(A) One-half shall be allocated to the prosecuting agency.
(B) One-half shall be deposited in the Arts and Entertainment Fund, which is hereby created in the State Treasury.
(3) Funds in the Arts and Entertainment Fund created pursuant to paragraph (2) may be expended by the California Arts Council, upon appropriation by the Legislature, to issue grants pursuant to the Dixon-Zenovich-Maddy California Arts Act of 1975 (Chapter 9 (commencing with Section 8750) of Division 1 of Title 2 of the Government Code).
(4) The rights and remedies provided in this subdivision are cumulative and in addition to any other rights and remedies provided by law.
(n) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
Civil Code Section 1708.83. Drone Restrictions.
(a) A person wrongfully occupies real property and is liable for damages pursuant to Section 3334 if, without express permission of the person or entity with the legal authority to grant access or without legal authority, he or she operates an unmanned aircraft or unmanned aircraft system less than 350 feet above ground level within the airspace overlaying the real property.
(b) For purposes of this section:
(1) “Unmanned aircraft” means an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft.
(2) “Unmanned aircraft system” means an unmanned aircraft and associated elements, including communication links and the components that control the unmanned aircraft, that are required for the pilot in command to operate safely and efficiently in the national airspace system.
(c) This section shall not be construed to impair or limit any otherwise lawful activities of law enforcement personnel or employees of governmental agencies or other public or private entities that may have the right to enter land by operating an unmanned aircraft or unmanned aircraft system within the airspace overlaying the real property of another, including the right to use private lands acquired pursuant to subdivision (d) of Section 1009.
(d) Nothing in this section is intended to limit the rights and defenses available at common law under a claim of liability for wrongful occupation of real property.