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Ritchey v. Villa Nueva Condominium Association

(1978) 81 Cal.App.3d 688

[Use Restrictions; Nuisances] A HOA has the power to issue reasonable regulations governing an owner’s use of his unit in order to prevent activities which might prove annoying to the general residents.

Joe B. Ritchey, in pro. per., for Plaintiff and Appellant.
Grunsky, Pybrum, Skemp & Ebey and James S. Farrar for Defendants and Respondents.

OPINION
CALDECOTT, J.

This is an appeal from a judgment entered pursuant to an order granting summary judgment in favor of defendants and respondents Villa Nueva Condominium Association[FN.1] (hereinafter respondents) and against plaintiff and appellant Joe B. Ritchey (hereinafter appellant).

On July 30, 1973, appellant purchased a two-bedroom unit in the high-rise portion of the Villa Nueva Condominium project. As an owner of a condominium, appellant automatically became a member of the Villa Nueva Condominium Owners Association.[FN.2] He likewise became subject to the provisions of the “Enabling Declaration Establishing a Plan for Condominium Ownership,” the bylaws, and decisions and resolutions of the association.[FN.3][691]

In 1974, the board of directors submitted proposed bylaw amendments to the Department of Housing and Urban Development (hereinafter HUD). The proposed amendments would, inter alia, add a new article XI to the bylaws which would set forth requirements for the renting and selling of individual units in the project by the owners. These proposals included a limitation on occupancy in the high-rise portion of the condominium project to persons 18 years of age or older where the occupancy would involve a period of 14 days or more. On November 8, 1974, HUD approved the proposed amendments. That same day, notice was sent to all condominium owners that the proposed changes in the bylaws would be voted upon at an association meeting on November 20, 1974.

At the November 20 meeting, the amendment restricting occupancy in the high-rise portion of the project to persons 18 years of age and over was approved by 75.864 percent of the owners representing the total value of all units in the project.[FN.4] Appellant voted by proxy against the proposed restriction on occupancy.

In 1975, appellant leased his condominium to Dorothy Westphal, a woman with two children. On October 7, 1975, the association brought suit against appellant and Westphal seeking to remove Westphal from her occupancy of unit number 34. The action was based upon the bylaw[692]restricting occupancy in the high-rise portion of the project to persons 18 years of age and older. Westphal moved out before an answer could be filed. The complaint was subsequently dismissed.

On November 13, 1975, appellant commenced the present action on behalf of himself and Dorothy Westphal. The complaint sought injunctive and declaratory relief, as well as damages for malicious prosecution, abuse of process and interference with a contractual relationship.

Subsequently, appellant moved for partial summary judgment. The motion was denied.[FN.5] Appellant filed a second motion for partial summary judgment. The motion was denied without hearing on the ground that it had previously been heard and denied.

Appellant filed a third motion for partial summary judgment. Respondents countered, by filing a motion for summary judgment. The motions came on for hearing and the court denied appellant’s motion and granted respondents’ motion. Judgment in favor of respondents was entered that same day.

The appeal is from the judgment.

I.

Appellant challenges the validity of an amendment to the bylaws of the Villa Nueva Condominium project which restricts occupancy in the high-rise portion of the project to persons 18 years of age and older.[FN.6] Appellant contends that such an age restriction is per se unreasonable. In addition, he argues that under the circumstances of the present case, the occupancy restriction cannot reasonably be enforced against him.

Appellant urges that an age restriction is patently unreasonable in that it discriminates against families with children. Age restrictions in condominium documents have not been specifically tested in our courts. Nevertheless, we conclude on the basis of statutory and case authority that such restrictions are not per se unreasonable.[693]

In Flowers v. John Burnham & Co. (1971) 21 Cal.App.3d 700 [98 Cal.Rptr. 644], an apartment house restriction limiting tenancy to adults, female children of all ages, and male children under the age of five was held not to violate the Unruh Act guaranteeing equal access to “accommodations, advantages, facilities privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51, see § 52.) The court noted that arbitrary discrimination by a landlord is prohibited by the act, but held: “Because the independence, mischievousness, boisterousness and rowdyism of children vary by age and sex … [the defendant], as landlord, seeks to limit the children in its apartments to girls of all ages and boys under five. Regulating tenants’ ages and sex to that extent is not unreasonable or arbitrary.” (21 Cal.App.3d at p. 703.)

Similarly, in Riley v. Stoves (1974) 22 Ariz.App. 223 [526 P.2d 747], the Arizona Court of Appeals upheld a covenant in a deed restricting occupancy of a subdivision to persons 21 years of age or older: “The restriction flatly prevents children from living in the mobile home subdivision. The obvious purpose is to create a quiet, peaceful neighborhood by eliminating noise associated with children at play or otherwise. …

“We do not think the restriction is in any way arbitrary. It effectively insures that only working or retired adults will reside on the lots. It does much to eliminate the noise and distractions caused by children. We find it reasonably related to a legitimate purpose and therefore decline to hold that its enforcement violated defendants’ rights to equal protection.” (526 P.2d at pp. 752-753; cited with approval in Coquina Club, Inc. v. Mantz (Fla.App. 1977) 342 So.2d 112, 113-114.)

It should also be noted that the United States Congress has adopted several programs to provide housing for the elderly (see generally 12 U.S.C. § 1701 et seq.; 42 U.S.C. § 1485), setting an age minimum of 62 years for occupancy. (12 U.S.C. § 1701q(d)(4); 42 U.S.C. § 1485(d)(3).) As the Riley court observed, “These sections represent an implicit legislative finding that not only do older adults need inexpensive housing, but also that their housing interests and needs differ from families with children.” (526 P.2d at p. 753. Cf. Retail Clerks U., Local 770 v. Retail Clerks Int. Ass’n. (C.D.Cal. 1973) 359 F.Supp. 1285 [age is a valid criterion for establishing mandatory retirement].)

[1] Under Civil Code section 1355, reasonable amendments to restrictions relating to a condominium project are binding upon every[694]owner and every condominium in that project “whether the burdens thereon are increased or decreased thereby, and whether the owner of each and every condominium consents thereto or not.”[FN.7] Whether an amendment is reasonable depends upon the circumstances of the particular case. (See Riley … Stoves, supra, 526 P.2d at p. 752.

[2] The amendment to the bylaws here in issue operates both as a restraint upon the owner’s right of alienation, and as a limitation upon his right of occupancy. However, for the reasons hereinafter discussed, we conclude that under the facts of this case the amendment is reasonable. For the sake of simplicity, we will address each of these aspects of the amendment independently.

The Restraint Upon Alienation

Article IX of the bylaws expressly provides that, to the extent that the bylaws conflict with applicable federal and state statutes and regulations, the provisions of such statutes or regulations will apply. This provision is in accordance with the general rule that all applicable laws in existence when an agreement is made necessarily enter into the contract and form part of it. (Alpha Beta Food Markets v. Retail Clerk’s (1955) 45 Cal.2d 764, 771 [291 P.2d 433].)

Title 10 of the Administrative Code, section 2792.25, provides that restrictions in the bylaws may limit the right of an owner to sell or lease his condominium unit so long as the standards are uniform and objective, and are not based upon the race, creed, color, national origin or sex of the purchaser or lessee. (Cal. Admin. Code, tit. 10, § 2792.25, subd. (a).)[FN.8] It[695]thus appears that a restriction upon alienation can be based upon the age of the vendee or lessee, or his family. (See 4 Miller & Starr, Current Law of Cal. Real Estate (rev. 1977) § 24:14(1), p. 34, fn. 3.)

Moreover, subdivision (b) of section 2792.25, in effect, merely converts the restriction upon alienation to a right of first refusal. That subdivision provides that such a restriction shall be deemed waived if the association fails to procure an equally favorable offer, or make such an offer on its own behalf, within 15 days after receipt of notice of the owner’s intent to accept an offer by a person who does not meet the prescribed standards.[FN.9] It is generally recognized that a right of first refusal requiring merely that the property be offered to a designated party, but not binding upon the owner to sell at a predetermined price, is a reasonable restraint. (15A Am.Jur.2d, Condominiums, Etc., § 40, p. 870.) The bylaw is therefore a reasonable restriction upon an owner’s right to sell or lease his condominium unit to families with children.

The Limitation Upon Occupancy

Appellant purchased his condominium unit approximately 16 months prior to the enactment of article XI, section 3, of the bylaws. At that time, the enabling declaration establishing a plan for condominium ownership, the model form of subscription and purchase agreement, and the report to the public issued by HUD, consistently referred to units in the condominium project as “family home units” or “family units” located in “multi-family structures,” and emphasized their suitability for families[696]with children[FN.10] Appellant states that he relied upon these representations when he purchased his unit.

Appellant, however, does not claim that any of these representations were false or were made to mislead him. As far as the record shows, appellant, at the time of his purchase and for several months thereafter, could lease the premises to a person with children under 18 years of age. Furthermore, appellant does not contend that it was represented to him that the conditions of occupancy would not be changed. In fact, at the time of his purchase, the enabling declaration specifically provided that the bylaws could be amended, and that he would be subject to any reasonable amendment that was properly adopted. Thus, the amendment is reasonable.

II.

Appellant claims that, as a condition of his federally insured loan for the purchase of his condominium, he was required to certify that he would not discriminate against families with children in leasing or selling his family unit. He argues that, since the association was created by the federal government, it is bound by his promise to the federal government not to discriminate against families with children.

Appellant raised this point in his declaration in opposition to respondents’ motion for summary judgment and in his declaration in support of his second and third motions for summary judgment. However, he did not attach a copy of his loan agreement with the federal government to any of these declarations. Respondents therefore attack the sufficiency of the declarations with respect to this issue on the ground that they were not properly documented.

[3] A motion for summary judgment requires supporting and opposing affidavits or declarations, which “shall be made by any person on[697]personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” (Code Civ. Proc., § 437c; italics added.) Generally, averments in the affidavit or declaration which depend upon written documentation are incompetent and cannot be considered unless there are annexed thereto the original document or certified or authenticated copies of such instruments, or unless excuse for nonproduction is shown. (Dugar v. Happy Tiger Records, Inc. (1974) 41 Cal.App.3d 811, 815-816 [116 Cal.Rptr. 412].)

As appellant failed to attach essential documents to his supporting and opposing declarations, those declarations are insufficient to raise a triable issue of fact on the question of his promise to the federal government not to discriminate against families with children.

III.

Appellant contends that the association exceeded the scope of its authority in enacting an age restriction on occupancy. He argues that the association was established for the sole purpose of operating and maintaining the common areas and facilities of the condominium project, and that any attempt to limit or prescribe the use of the individually owned units was ultra vires. This argument is without merit.

[4]The authority of a condominium association necessarily includes the power to issue reasonable regulations governing an owner’s use of his unit in order to prevent activities which might prove annoying to the general residents. Thus, an owner’s association can prohibit any activity or conduct that could constitute a nuisance, regulate the disposition of refuse, provide for the maintenance and repair of interiors of apartments as well as exteriors, and prohibit or regulate the keeping of pets. (15A Am.Jur.2d, supra, § 31, p. 861; § 40, p. 869. Cf. Hidden Harbour Estates, Inc. v. Norman (Fla.App. 1975) 309 So.2d 180 [rule prohibiting alcoholic beverages in the clubhouse adjacent common areas is valid and enforceable]; Forest Park Cooperative v. Hellman (1956) 2 Misc.2d 183 [152 N.Y.S.2d 685] [rule prohibiting separate washing machines in the respective apartments of a cooperative development is not arbitrary or unreasonable and is within the scope of authority of the directors of the development].)[698]

Therefore, a reasonable restriction upon occupancy of the individually owned units of a condominium project is not beyond the scope of authority of the owner’s association.

IV.

Appellant raises additional issues for the first time in his reply brief. Since good reason has not been shown for appellant’s failure to present them in his opening brief, they should not be considered on this appeal. (Hibernia Sav. and Loan Soc. v. Farnham (1908) 153 Cal. 578, 584 [96 P. 9]; 6 Witkin, California Procedure (2d ed. 1971) Appeal, § 442, p. 4405.)

The judgment is affirmed.

Rattigan, J., and Christian, J., concurred.

 

[FN. 1] The other defendants are the members of and the board of directors of the association.

[FN. 2] The association of owners, acting through its elected board of directors is responsible for administering the project, approving the annual budget, establishing and collecting monthly assessments, and arranging for the management of the project.

[FN. 3] The Enabling Declaration Establishing a Plan for Condominium Ownership provides:

“7. That each owner, tenant or occupant of a ‘family unit’ shall comply with the provisions of this Declaration, the By-Laws, decisions and resolutions of the Association or its representative, and the Regulatory Agreement, as lawfully amended from time to time, and failure to comply with any such provisions, decisions or resolutions, shall be grounds for an action to recover sums due, for damages, or for injunctive relief.”

All agreements and determinations lawfully made by the association pursuant to Civil Code section 1350 et seq., the declaration or the bylaws are binding on all owners of family units, and their successors and assignees.

Article I, section 2 of the bylaws provides:

“Section 2. By-Laws Applicability. The provisions of these By-Laws are applicable to the project and its occupants. (The term ‘project’ as used herein shall include the land.)”

Article I, section 3 of the bylaws provides:

“Section 3. Personal Application. All present or future owners, tenants, future tenants, or their employees, or any other person that might use the facilities of the project in any manner, are subject to the regulations set forth in these By-Laws and to the Regulatory Agreement, attached as Exhibit ‘C’ to the recorded Plan of Apartment Ownership.

“The mere acquisition or rental of any of the family units (hereinafter referred to as ‘Units’) of the project or the mere act of occupancy of any of said units will signify that these By-Laws and the provisions of the Regulatory Agreement are accepted, ratified, and will be complied with.”

[FN. 4] The bylaws provide that the bylaws can be amended with the approval of owners representing at least 75 percent of the total value of all units in the project as shown in the enabling declaration establishing a plan for condominium ownership.

[FN. 5] Appellant did not request, in his notice to prepare clerk’s transcript, the inclusion of any documents filed by him in support of his first motion for summary judgment.

[FN. 6] Article XI, section 3, of the bylaws provides as follows: “Occupancy in the High Rise portion of the project shall be limited to persons 18 years of age or older. The term occupancy refers to a continuous occupancy for a period of 14 days or more.”

[FN. 7] Civil Code section 1355 provides in relevant part as follows: “The owner of a project shall, prior to conveyance of any condominium therein, record a declaration of restrictions relating to such project, which restrictions shall be enforceable equitable servitudes where reasonable, and shall inure to and bind all owners of condominiums in the project. Such servitudes, unless otherwise provided, may be enforced by any owner of a condominium in the project, and may provide, among other things: … [] (c)[2] For amendments of such restrictions which amendments, if reasonable and made upon vote or consent of not less than a majority in interest of the owners in the project given after reasonable notice, shall be binding upon every owner and every condominium subject thereto whether the burdens thereon are increased or decreased thereby, and whether the owner of each and every condominium consents thereto or not.”

[FN. 8] Title 10 of the Administrative Code, section 2792.25, subdivision (a) provides as follows: “(a) Any provision which purports to restrict or abridge whether directly or indirectly, the right of an owner to sell or lease his subdivision interest must include uniform, objective standards for invoking the restriction upon sale or lease, none of which shall be based upon the race, color, creed, national origin or sex of the vendee or lessee.”

[FN. 9] Subdivision (b) of section 2792.25 of title 10 of the Administrative Code provides as follows:

“(b) (1) If the owner gives notice to the Association of the terms of a bona fide offer by a person who does not meet the prescribed standards and of his intention to accept the offer, the Association may have a period of not to exceed 15 days after receipt of the notice to procure or to make an offer on terms not less favorable to the owner than the terms of the offer of the person failing to meet the prescribed standards.

“(2) If the Association does not procure an offer or make an offer on its own behalf within 15 days after receipt of the aforesaid notice, the restrictions shall be deemed waived and the owner may thereafter sell to any person provided that the terms of sale are not less favorable to him than the terms of the original offer which failed to meet the prescribed standards.”

It should be noted that subdivision (b)(2) refers only to the owner’s right to sell after waiver by the association. However, when construed together with subdivisions (a) and (b)(1) of section 2792.25, it is apparent that it was also intended to apply to restraints on the right of an owner to lease his unit.

[FN. 10] The subscription and purchase agreement declared: “Churches, schools, shopping centers, playgrounds and other community facilities available to members of the project are located as follows: Various religious denominations are represented in City of Santa Cruz or surrounding area. Santa Cruz city schools include elementary, junior high and high schools–bus service. Also University of California, Santa Cruz Branch and Cabrillo College. Shopping–local is 1/2 block–major 1 block–city park adjacent–community facilities 2 to 4 blocks.” In its report to the public, HUD stated: “The County Government Center, Library, City Hall Complex, Civic Auditorium, Post Office, Schools, Churches and the Ocean Beach Resort are all within walking distance.” The report further described the project as having “a fenced tot play area.” In addition, the report stressed that the condominium owner is assured of occupancy.

AB 1448 (Lopez). Personal Energy Conservation: Real Property Restrictions.

Would make void and unenforceable any provision of a HOA’s governing documents that have the effect of prohibiting or unreasonably restricting clotheslines or “drying racks” in an owner’s backyard. Reasonable restrictions would be permitted.

Current Status: Chaptered

FindHOALaw Quick Summary:

Many sets of HOA governing documents contain provisions that prohibit clotheslines from being hung outside of an owner’s unit and/or in any area that is visible from adjoining properties or HOA common area. AB 1448 (Lopez) would add Civil Code §§ 1940.20 and 4750.10 to make any provision of a governing document void and unenforceable if it effectively prohibits or unreasonably restricts an owner’s ability to use a clothesline or “drying rack” in the owner’s backyard.

This bill would specify that these provisions would only apply to backyards that are designated for the exclusive use of the owner, and would further exclude a “balcony, railing, awning, or other part of a structure or building” from the definition of “clothesline” or “drying rack.” A HOA would still be permitted to impose “reasonable restrictions,” where such restrictions are defined as those which do not significantly increase the cost of using a clothesline or drying rack.

**UPDATE: AB 1448 was approved on October 8, 2015. It’s changes to the law will become operative on January 1, 2016.

View more info on AB 1448
from the California Legislature's website

Related Links

AB 1448 Signed! HOA Bans on Clotheslines Get 'Hung out to Dry' - Published on HOA Lawyer Blog (10/12/15)

Hardsurface (Hardwood) Flooring Restrictions

Modern sets of CC&Rs for condominium developments often contain provisions that restrict the types of flooring materials may be installed within a unit and/or at specific locations within a unit. Those restrictions purport to protect neighboring owners from being subjected to nuisance noise transmissions that unreasonably interfere with the quiet use and enjoyment of their units. In situations where an owner installs hardsurface (i.e., hardwood) flooring without approval and in violation of the CC&Rs, the association may have the authority to sue the owner in order to compel the removal of the flooring, or to at least require that the flooring be modified in order to abate nuisance noise transmissions:

“… the directive to find a compromise in modifying the flooring, as well as the interim remedy of using throw rugs, reflected a balanced consideration of the circumstances of everyone involved, including the residents below who were adversely affected by defendant’s violation of the noise and nuisance restrictions.” (Ryland Mews HOA v. Munoz (2015) 234 Cal.App.4th 705, 713.)

Related Links

Hardwood Flooring & ‘Nuisance Noise’ – HOA Lawyer Blog, published 03/09/15

Farber v. Bay View Terrace Homeowners Association

(2006) 141 Cal.App.4th 1007

[Enforcement; Standing to Sue] A prior owner of a unit within an association does not have standing to enforce the CC&Rs.

Feldsott & Lee and Martin L. Lee for Plaintiff, Cross-complainant and Appellant.
Hickey & Petchul, David E. Hickey, Dirk E. Petchul, J. Stuart Duncan and David M. Gillen, for Defendant, Cross-defendant, and Respondent.

OPINION
BEDSWORTH, Acting P. J.-

Alicia Farber appeals from judgments that dismissed her complaint and cross-complaint against Bay View Homeowners Association (Association) for lack of standing to sue, and from a post-judgment order awarding the Association attorney fees. Farber argues she does have standing and, even if not, the Association was not entitled to fees. We disagree and affirm.

In late 2003, Farber sold a condominium in Bay View Terrace, Costa Mesa, to David Stiffler. The condominium project is subject to a declaration of covenants, conditions, and restrictions (CC&R’s). The Association, whose members are the unit owners, is responsible for enforcing the CC&R’s and maintaining the structures within the condominium project.[1010]

After Stiffler moved into his unit, he discovered the roof leaked extensively and he was facing a $15,000 assessment by the Association to make repairs. Stiffler thought Farber had failed to disclose the leaks and should bear this expense. Farber took the position that it was the Association’s duty to maintain the roof. She made demand on the Association to accept responsibility for the roof, and on Stiffler to agree to look only to the latter for recourse. Both refused and the instant action followed.

The complaint names as defendants Stiffler and the Association, and it recites the facts set out above. There is a single cause of action for declaratory relief. It alleges “[a]n actual controversy . . . now exists between plaintiff and defendants . . . concerning their respective rights and duties pursuant to the DECLARATION [CC&R’s] . . . and duties allegedly owed to defendant STIFFLER by either plaintiff and/or ASSOCIATION . . . .” Farber alleges she did not conceal any material facts from Stiffler, and it is the Association’s duty to fix Stiffler’s roof. The relief requested is a judicial determination of Farber’s rights and duties vis-a-vis Stiffler and the Association. As to the Association, she specifically asks for a declaration that “[i]f defendant STIFFLER is having any problems with the roof . . . it is the duty and obligation of the defendant ASSOCIATION to alleviate same and not the duty and/or obligation of this plaintiff . . . .” [FN. 1]

The Association demurred to the complaint on the ground that it failed to state a cause of action. The gist of its argument was that there was no actual controversy between Farber and the Association, since she was not a member and it had no duty to her. At oral argument, the Association added a new argument — Farber lacked standing to enforce the CC&R’s because she was not an owner of a condominium unit. In support, it proffered statutory authority and case law not included in the demurrer. The trial court overruled the demurrer, explaining the standing argument had not been fairly raised and it would violate due process to decide on that basis without giving Farber an opportunity to brief the issue.

Prior to this ruling, Farber had filed a cross-complaint against the Association. It incorporated the complaint by reference and set out three causes of action — implied indemnity, comparative indemnity, and declaratory relief. The two indemnity claims alleged the Association is primarily responsible for any damages Stiffler might recover, and it should indemnify Farber for any judgment. The declaratory relief claim requested a determination of Farber’s rights and duties against the Association and a declaration she is entitled to be indemnified for any judgment obtained by Stiffler.[1011]

The Association demurred to the cross-complaint. It argued the indemnity claims failed to state a cause of action under a statute that provides the comparative fault of an association managing a condominium cannot be raised in a cross-complaint or separate action for contribution or implied indemnity, but only as a defense. (Civ. Code, § 1368.4.) The Association argued the declaratory relief claim also failed to state a cause of action, because it sought to enforce the CC&R’s and Farber did not have standing to bring such an action. The trial court sustained the demurrer, without leave to amend, as to all causes of action.

Following this success, the Association moved for judgment on the pleadings of Farber’s original complaint. It contended Farber lacked standing to enforce the CC&R’s, and the ruling sustaining the demurrer to the cross-complaint was res judicata on the issue. The trial court rejected the res judicata argument, but it agreed Farber lacked standing to sue. Judgment was entered for the Association on the complaint, and a subsequent judgment (denominated an order) dismissed the cross-complaint against the Association. On the Association’s motion, it was awarded $24,517.50 in attorney fees and $512 in costs as the prevailing party in an action to enforce the governing documents of the condominium project. (Civ. Code, § 1354, subd. (c).)

I.

Farber argues she has standing because neither the complaint nor the cross-complaint was an action to enforce the CC&R’s. Rather, she says, both sought to establish the Association’s obligations to Stiffler. We do not buy it. The obligations Farber sought to enforce were obligations owed by the Association to Stiffler under the CC&R’s.

[1] Civil Code section 1354, subdivision (a) provides that covenants and restrictions in a condominium declaration are enforceable as equitable servitudes if certain conditions are met. It then continues as follows: “Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or both.” The term “separate interest” means, in a condominium project, an individual unit. (Civ. Code § 1351, subd. (l)(2).) The common law rule is the same. One who no longer owns land in a development subject to reciprocal restrictions cannot enforce them, absent showing the original covenanting parties intended to allow enforcement by one who is not a landowner. (B.C.E. Development, Inc. v. Smith (1989) 215 Cal.App.3d 1142, 1147-1148; see Kent v. Koch (1958) 166 Cal.App.2d 579, 586 [developer who sold all lots in subdivision cannot enforce restrictions that would benefit project on adjacent land].)[1012]

[2] The essence of Farber’s claim is that the CC&R’s require the Association to fix Stiffler’s roof. We cannot regard that as anything but an attempt to enforce the CC&R’s. The language of the complaint and cross-complaint leave no doubt in the matter. The complaint alleges a controversy “between plaintiff and defendants . . . concerning their respective rights and duties pursuant to the DECLARATION [the CC&R’s],” and it seeks a declaration of Farber’s rights against the Association and Stiffler. The cross-complaint requests indemnity, and a declaratory judgment, on the theory the Association had the primary duty to repair the roof under the CC&R’s. Since Farber attempted to enforce the CC&R’s when she no longer owned a unit in condominium, the complaint and cross-complaint were properly dismissed for lack of standing.

Farber’s argument she was only seeking to enforce Stiffler’s rights strains even our credulity. To begin with, that is not what the pleadings say. The complaint unambiguously requests a declaration of Farber’s rights against the Association. The cross-complaint is not as direct, but its import is the same, since Farber claims the Association has a duty to indemnifyherbecause it is primarily liable for fixing Stiffler’s roof. Moreover, whether Stiffler’s rights or her own, this is still an action by Farber that seeks relief under the CC&R’s, and she is not a person entitled to bring such a suit. [FN. 2]

Salawy v. Ocean Towers Housing Corp.(2004) 121 Cal.App.4th 664 does not help Farber. There, unit owners in a cooperative apartment building sued the cooperative corporation for breach of a promise to reimburse them for costs incurred in temporarily relocating, while repairs were made following an earthquake. The cooperative corporation successfully demurred based on provisions in its bylaws. It then requested attorney fees under a statute that awards fees to the prevailing party in “an action to enforce the governing documents” (Civ. Code, § 1354, subd. (c)), which are those documents that govern the operation of a condominium, among others. (Civ. Code, § 1351, subds. (c), (j).) The court held fees were not recoverable because the action was based on a breach of promise, not the governing documents. (Id. at p. 671.) Here, the essence of Farber’s claim is that the CC&R’s place the obligation to fix Stiffler’s roof on the Association, so she cannot be liable for the cost. There is no promise here, only an obligation she finds in the CC&R’s. That is an action to enforce the CC&R’s, whether framed in terms of Farber’s rights against the Association or Stiffler’s.

Alternatively, Farber contends she only used the CC&R’s defensively, to avoid liability to Stiffler. But that simply is not true. Farber’s claims are[1013]presented in a complaint and cross-complaint, not as defenses in an answer. There is no avoiding the conclusion the complaint and cross-complaint were correctly dismissed for lack of standing.

II.

Farber argues the dismissals violated two rules that prohibit reconsideration of an issue raised and rejected, absent new facts or law. She is mistaken.

[3] A party who moved for an order that was refused may make a subsequent application for the same order only by showing “new or different facts, circumstances, or law,” and its new motion must be accompanied by an affidavit setting out what is new or different. (Code Civ. Proc., § 1008, subd. (a).) A motion for judgment on the pleadings may be brought on the same grounds as an unsuccessful demurrer only if “there has been a material change in applicable case law or statute since the ruling on the demurrer.” (Code Civ. Proc., § 438, subd. (g).)

Farber’s theory is that the demurrer to the cross-complaint, and the motion for judgment on the pleadings against the complaint, presented the same standing argument that was rejected when the trial court overruled the demurrer to the complaint. From this she reasons that both should have been rejected because neither raised new facts or law.

But the trial court did not consider standing when it overruled the demurrer to the complaint. It explained that lack of standing was “not a clearly stated ground in the demurrer,” due process would be violated if the argument was considered without allowing Farber to brief it, and “[w]ithout expressing any opinion on the merits of these [standing] arguments . . . [t]he demurrer is overruled.” It rather clearly refused to consider the standing issue.

Since standing was not an issue on the overruled demurrer, the Association was free to raise it by motion for judgment on the pleadings against the complaint. As for the cross-complaint, the Association’s demurrer was its first challenge to that new pleading, so the rule regarding motions for reconsideration does not apply. There was no procedural error in the judgments dismissing the complaint and cross-complaint.

III.

Farber argues the trial court improperly relied on res judicata in granting the motion judgment on the pleadings. The short answer — which is all that is necessary here — is that it did not. The relevant order states “[t]he court’s[1014]prior ruling on the demurrer to plaintiff’s cross-complaint is not res judicata . . . ,” and it goes on to grant the motion because Farber lacks standing to sue.

IV.

Finally, we turn to the fee award. The fee motion was brought under Civil Code section 1354, subdivision (c), which provides as follows: “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” Farber asserts multiple errors in the award. We set out each in turn and conclude none has merit.

Farber contends fees were improper because this is not an action to enforce the CC&R’s. A related argument is that the Association was not the prevailing party entitled to costs of $512 because the complaint and cross-complaint should not have been dismissed. The point here is the same one she made on the standing issue, supported by the same authorities, and it is no more persuasive the second time around. This is an action to enforce the CC&R’s and the case was properly dismissed, so the Association was the prevailing party entitled to fees and costs.

Next, Farber argues the trial court initially denied the fee motion, then granted a second motion that did not state sufficient grounds to permit renewal of the failed effort. We cannot agree.

The Association’s first fee motion was supported by a declaration from counsel that stated the hours spent on the case and his regular billing rate. Farber objected to the supporting evidence as inadequate. The trial court denied the fee motion “without prejudice on the grounds that Moving Party did not supply the court with sufficient information to determine whether the fees were reasonable and necessary.”

The second fee motion attached a detailed bill that itemized the services performed on a day-by-day basis and the time spent on each, with a few entries redacted. Farber argued the second motion did not state sufficient grounds to permit reconsideration under Code of Civil Procedure section 1008. The trial court disagreed, saying Code of Civil Procedure section 1008 did not apply because “the prior motion was denied without prejudice.” It eliminated certain items and awarded the Association fees of $24,517.50.

Code of Civil Procedure section 1008, provides, in relevant part: “(b) A party who originally made an application for an order which was refused in whole or part . . . may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be[1015]shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. . . . [¶] . . . [¶] (e) This section specifies the court’s jurisdiction . . . and applies to all applications to reconsider any order . . . or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

[4]Le Francois v. Goel (2005) 35 Cal.4th 1094 holds that Code of Civil Procedure section 1008 prohibits a party from filing repetitive motions for the same relief, but a court may, on its own motion, reconsider a prior interim ruling it believes to be mistaken. (Id. at p. 1107.) “[I]f the court is seriously concerned that one of its prior interim rulings might have been erroneous, and that it might want to reconsider that ruling on its own motion . . . it should inform the parties of this concern, solicit briefing, and hold a hearing.” (Id at p. 1108.)

Here, the trial court indicated it wanted to reconsider the fee issue when it denied the first motion without prejudice, so Code of Civil Procedure section 1008 is inapplicable. Denial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial.

In this case, the first motion was denied for want of sufficient evidence. The trial court might have continued the motion to allow the Association to submit a detailed fee bill, but instead it chose to deny the motion with, in effect, leave to renew it upon further evidence. Which route to chose is an administrative matter of calendar management — some might want to streamline a docket and continue a pending motion to allow supplemental filings, while others might prefer to decide the motion on the existing papers and reconsider that decision in a new motion. In any event, the trial court acted within its powers when, essentially on its own motion, it reconsidered fees and made the instant fee award.

Farber also argues the fee award was excessive. In her view, the request should have been reduced by 44.5 hours spent on the first fee motion and two premature bills of cost, and the award was still too high because the case was won on a demurrer and motion with very little discovery. We cannot agree.

The trial court found $24,517.50 was a reasonable fee, and Farber’s disagreement with that figure does not make it wrong. We note that the trial judge reduced the fee requested by approximately 33.6 hours. To prevail on a substantial evidence challenge, an appellant must lay out the contrary evidence and demonstrate why it is lacking. (Foreman & Clark Corp. v. Fallon [1016](1971) 3 Cal.3d 875, 881.) Farber makes no attempt to do this, but rather reargues her own position on both the reduction and the overall value of the services provided by the Association’s lawyer. That is not good enough. Since there is no showing the fee award is unsupported by the evidence, it must be affirmed.

Since Farber does not have standing to sue, the complaint and cross-complaint were properly dismissed. The Association was entitled to reasonable fees and costs as the prevailing party, and no error is shown in making that award. The judgments and post-judgment order appealed from are affirmed. The Association is entitled to costs on appeal. [FN. 3]

O’Leary, J., and Ikola, J., concurred.

FN 1. Stiffler responded with a cross-complaint against Farber – and not the Association – seeking damages for fraud, negligent misrepresentation, breach of contract, and negligence. Stiffler’s cross-complaint is not in issue on this appeal.

FN 2. We also note that as procedural matter, Farber’s claim to be enforcing Stiffler’s rights runs afoul of the rule that an action must be prosecuted in the name of the real party in interest. (Code Civ. Proc., § 367.) Farber has sued in her own name, not Stiffler’s, which again makes it apparent she is the one seeking to enforce the CC&R’s.

FN 3. Since we affirm the dismissal of the complaint and cross-complaint, we do not reach Farber’s argument that her discovery motions should have been granted.

Standing to Litigate

Association Standing
Civil Code Section 5980 grants to an association “standing to institute, defend, settle, or intervene in litigation, arbitration, mediation or administrative proceedings in its own name as the real party in interest and without joining with it the members,” in matters that pertain to any of the following:

Under certain circumstances, an association may also have standing to sue third parties solely as a representative of the association’s members. (Market Lofts Community Assn. v. 9th Street Market Lofts, LLC (2014) 222 Cal.App.4th 924, 932-933.)

Owner Standing to Enforce CC&Rs
An association’s members also have standing to enforce the restrictions contained in the CC&Rs, unless otherwise stated in the CC&Rs. (Civ. Code § 5975(a).) A member may also “sue the association for damages and an injunction to compel the association to enforce the provisions of the [CC&Rs].” (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246.)

  • No Standing for Prior Owners – A person who no longer owns a unit within the association (a person who is no longer a member of the association) does not have standing to enforce the CC&Rs. (Farber v. Bay View Terrace HOA (2006) 141 Cal.App.4th 1007, 1012.)
  • No Standing for Renters – Renters do not have standing to sue an association for breach of its CC&Rs or violations of the Davis-Stirling Act, notwithstanding whether an owner has executed a power of attorney to his renter to handle matters relating to the owner’s property. (Martin v. Bridgeport Community Assn. (2009) 173 Cal.App.4th 1024, 1036 and 1038; See also “Renter Rights.”)

22 CCR Section 65541. Public Swimming Pools; Health of Employees & Public Pool Users.

(a) No public pool employee having a communicable disease while in an infectious state shall work in any capacity involving contact with pool users, pool water, or the operation of the pool equipment and ancillary facilities at a public pool unless a current written statement is provided by a licensed physician as prescribed in subdivision (b).

(b) No public pool employee or pool user having a communicable disease while in an infectious state, including, but not limited to, Cryptosporidium, giardia, Legionnaires’ disease, and Pseudomonas aeruginosa infection, or while having any symptoms such as a cough, cold sore, or nasal or ear discharge or when wearing bandages, shall not enter public pool water unless the public pool employee or pool user submits a current written statement to the pool operator, signed by a licensed physician, confirming that the public pool employee or pool user does not present a health hazard to others using the public pool or ancillary facilities.

(c) If two or more lifeguards or pool users at a public pool report within 5 days of each other to the pool operator that they have had diarrhea, the pool operator shall report this to the enforcing agent.

Note: Authority cited: Sections 116035, 116050 and 131200, Health and Safety Code. Reference: Sections 116040, 116043 and 116050, Health and Safety Code.

Current through 8/14/15 Register 2015, No. 33

22 CCR Section 65540. Public Swimming Pools; Safety & First Aid Equipment.

(a) Except for spray grounds without standing water, the pool operator shall ensure that the following safety and first aid equipment is provided and maintained readily visible and available for use at the public pool at all times:

(1) A 17-inch-minimum (exterior diameter) life ring with an attached throw rope with a minimum 3/16-inch diameter. The throw rope shall be of sufficient length to span the maximum width of the public pool and shall be stored in such a way as to prevent kinking or fouling. When rescue without a life ring can be effected from the perimeter of a spa, the enforcing agent may exempt the spa from the requirements of this subdivision.

(2) A 12-foot-minimum fixed-length rescue pole with a permanently attached body hook. For spas, the enforcing agency may approve a shorter length based on the unique configuration of each spa. For spas, the length of the rescue pole shall be of sufficient length to effectuate rescue.

(b) For public pools with lifeguard personnel on duty, the pool operator of each public pool area shall have the following additional safety equipment:

(1) A Red Cross 10-Person Industrial First Aid Kit or the equivalent.

(2) An operating telephone.

(3) A backboard and head immobilizer.

(c) For public pools that exceed 75 feet in length or 50 feet in width, the pool operator shall provide a rescue pole and a life ring on at least two opposing sides of the public pool at centralized locations.

(d) When, in the opinion of the enforcing agent, any public pool is of such size that unaided swimming by lifeguards performing rescue may not offer sufficient protection to pool users, the pool operator shall provide one or more paddle boards or square-sterned boats equipped with oars, oarlocks and life rings as ordered by the enforcing agent.

Note: Authority cited: Sections 116035, 116050 and 131200, Health and Safety Code. Reference: Sections 115950, 115952, 116028, 116040 and 116043, Health and Safety Code.

Current through 8/14/15 Register 2015, No. 33

Health & Safety Code Section 116048. Public Swimming Pool Operation Records.

(a) On or after January 1, 1987, for public swimming pools in any common interest development, as defined in Section 4100 or 6534 of the Civil Code, that consists of fewer than 25 separate interests, as defined in Section 4185 or 6564 of the Civil Code, the person operating each pool open for use shall be required to keep a record of the information required by subdivision (a) of Section 65523 of Title 22 of the California Administrative Code, except that the information shall be recorded at least two times per week and at intervals no greater than four days apart.

(b) On or after January 1, 1987, any rule or regulation of the department that is in conflict with subdivision (a) is invalid.

Related Links

Increased Maintenance Requirements for HOA Pools in California – Published on HOA Lawyer Blog (10/31/15)

22 CCR Section 65523. Public Swimming Pools; Operation Records.

(a) Except as provided in Health and Safety Code, section 116048, the pool operator of every public pool open for use at a public pool site shall test the disinfectant residual and pH of the public pool water a minimum of once per day. The pool operator shall also test heated pools’ water temperature a minimum of once per day. The pool operator may perform these daily tests using a properly calibrated automatic chemical monitoring and control system if approved by the enforcing agent and in accordance with the manufacturer’s equipment specifications for calibration and directions for proper use. The pool operator shall maintain a written daily record of all test results, equipment readings, calibrations, and corrective action taken at the public pool site.

(b) If the pool operator adds cyanuric acid to a public pool, the pool operator shall measure the cyanuric acid concentration in that pool a minimum of once per month and shall maintain a written record of these test results and all corrective action taken at the public pool site.

(c) The pool operator shall test combined chlorine at a frequency required to maintain maximum combined chlorine concentrations below 0.4 ppm. The pool operator shall maintain a written record of these test results and all corrective action taken at the public pool site.

(d) The pool operator shall maintain a written record of routine maintenance and repairs to the public pool at the public pool site.

(e) If a fecal, vomit, blood contamination, near-drowning, or drowning incident occurs in a pool, the pool operator shall record the incident in accordance with the requirements of section 65546 and shall identify the affected public pool in the incident record if there is more than one pool at the public pool site. This record shall be maintained at the public pool site.

(f) The pool operator shall maintain data and records collected pursuant to subdivisions (a), (b), (c), (d), and (e) for at least two years for inspection by the enforcing agent and shall submit all data and records to the enforcing agent upon the agent’s request.

Note: Authority cited: Sections 116048, 116050 and 131200, Health and Safety Code. Reference: Sections 116035, 116040, 116043, 116050 and 116055, Health and Safety Code.

Current through 8/14/15 Register 2015, No. 33

Related Links

Increased Maintenance Requirements for HOA Pools in California – Published on HOA Lawyer Blog (10/31/15)

Health & Safety Code Section 116064.2. Public Swimming Pool Safety Devices.

(a) As used in this section, the following words have the following meanings:

(1) “ANSI/APSP performance standard” means a standard that is accredited by the American National Standards Institute (ANSI) and published by the Association of Pool and Spa Professionals (APSP).

(2) “ASME/ANSI performance standard” means a standard that is accredited by the American National Standards Institute and published by the American Society of Mechanical Engineers.

(3) “ASTM performance standard” means a standard that is developed and published by ASTM International.

(4) “Public swimming pool” means an outdoor or indoor structure, whether in-ground or above-ground, intended for swimming or recreational bathing, including a swimming pool, hot tub, spa, or nonportable wading pool, that is any of the following:

(A) Open to the public generally, whether for a fee or free of charge.

(B) Open exclusively to members of an organization and their guests, residents of a multiunit apartment building, apartment complex, residential real estate development, or other multifamily residential area, or patrons of a hotel or other public accommodations facility.

(C) Located on the premises of an athletic club, or public or private school.

(5) “Qualified individual” means a contractor who holds a current valid license issued by the State of California or a professional engineer licensed in the State of California who has experience working on public swimming pools.

(6) “Safety vacuum release system” means a vacuum release system that ceases operation of the pump, reverses the circulation flow, or otherwise provides a vacuum release at a suction outlet when a blockage is detected.

(7) “Skimmer equalizer line” means a suction outlet located below the waterline, typically on the side of the pool, and connected to the body of a skimmer that prevents air from being drawn into the pump if the water level drops below the skimmer weir. However, a skimmer equalizer line is not a suction outlet for purposes of subdivisions (c) and (d).

(8) “Suction outlet” means a fitting or fixture of a swimming pool that conducts water to a recirculating pump.

(9) “Unblockable suction outlet” means a suction outlet, including the sump, that has a perforated (open) area that cannot be shadowed by the area of the 18 inch by 23 inch Body Blocking Element of the ANSI/APSP-16 performance standard, and that the rated flow through any portion of the remaining open area cannot create a suction force in excess of the removal force values in Table 1 of that standard.

(b)

(1) Subject to subdivision (e), every public swimming pool shall be equipped with antientrapment devices or systems that comply with the ANSI/APSP-16 performance standard or successor standard designated by the federal Consumer Product Safety Commission.

(2) A public swimming pool that has a suction outlet in any location other than on the bottom of the pool shall be designed so that the recirculation system shall have the capacity to provide a complete turnover of pool water within the following time:

(A) One-half hour or less for a spa pool.

(B) One-half hour or less for a spray ground.

(C) One hour or less for a wading pool.

(D) Two hours or less for a medical pool.

(E) Six hours or less for all other types of public pools.

(c) Subject to subdivisions (d) and (e), every public swimming pool with a single suction outlet that is not an unblockable suction outlet shall be equipped with at least one or more of the following devices or systems that are designed to prevent physical entrapment by pool drains:

(1) A safety vacuum release system that has been tested by a nationally recognized testing laboratory and found to conform to ASME/ANSI performance standard A112.19.17, as in effect on December 31, 2009, or ASTM performance standard F2387, as in effect on December 31, 2009.

(2) A suction-limiting vent system with a tamper-resistant atmospheric opening, provided that it conforms to any applicable ASME/ANSI or ASTM performance standard.

(3) A gravity drainage system that utilizes a collector tank, provided that it conforms to any applicable ASME/ANSI or ASTM performance standard.

(4) An automatic pump shutoff system tested by a department-approved independent third party and found to conform to any applicable ASME/ANSI or ASTM performance standard.

(5) Any other system that is deemed, in accordance with federal law, to be equally effective as, or more effective than, the systems described in paragraph (1) at preventing or eliminating the risk of injury or death associated with the circulation system of the pool and suction outlets.

(d) Every public swimming pool constructed on or after January 1, 2010, shall have at least two suction outlets per pump that are hydraulically balanced and symmetrically plumbed through one or more “T” fittings, and that are separated by a distance of at least three feet in any dimension between the suction outlets. A public swimming pool constructed on or after January 1, 2010, that meets the requirements of this subdivision, shall be exempt from the requirements of subdivision (c).

(e) A public swimming pool constructed prior to January 1, 2010, shall be retrofitted to comply with subdivisions (b) and (c) by no later than July 1, 2010, except that no further retrofitting is required for a public swimming pool that completed a retrofit between December 19, 2007, and January 1, 2010, that complied with the Virginia Graeme Baker Pool and Spa Safety Act (15 U.S.C. Sec. 8001 et seq.) as in effect on the date of issue of the construction permit, or for a nonportable wading pool that completed a retrofit prior to January 1, 2010, that complied with state law on the date of issue of the construction permit. A public swimming pool owner who meets the exception described in this subdivision shall do one of the following prior to September 30, 2010:

(1) File the form issued by the department pursuant to subdivision (f), as otherwise provided in subdivision (h).

(2)

(A) File a signed statement attesting that the required work has been completed.

(B) Provide a document containing the name and license number of the qualified individual who completed the required work.

(C) Provide either a copy of the final building permit, if required by the local agency, or a copy of one of the following documents if no permit was required:

(i) A document that describes the modification in a manner that provides sufficient information to document the work that was done to comply with federal law.

(ii) A copy of the final paid invoice. The amount paid for the services may be omitted or redacted from the final invoice prior to submission.

(f) Prior to March 31, 2010, the department shall issue a form for use by an owner of a public swimming pool to indicate compliance with this section. The department shall consult with county health officers and directors of departments of environmental health in developing the form and shall post the form on the department’s Internet Web site. The form shall be completed by the owner of a public swimming pool prior to filing the form with the appropriate city, county, or city and county department of environmental health. The form shall include, but not be limited to, the following information:

(1) A statement of whether the pool operates with a single suction outlet or multiple suction outlets that comply with subdivision (d).

(2) Identification of the type of antientrapment devices or systems that have been installed pursuant to subdivision (b) and the date or dates of installation.

(3) Identification of the type of devices or systems designed to prevent physical entrapment that have been installed pursuant to subdivision (c) in a public swimming pool with a single suction outlet that is not an unblockable suction outlet and the date or dates of installation or the reason why the requirement is not
applicable.

(4) A signature and license number of a qualified individual who certifies that the factual information provided on the form in response to paragraphs (1) to (3), inclusive, is true to the best of his or her knowledge.

(g) A qualified individual who improperly certifies information pursuant to paragraph (4) of subdivision (f) shall be subject to potential disciplinary action at the discretion of the licensing authority.

(h) Except as provided in subdivision (e), each public swimming pool owner shall file a completed copy of the form issued by the department pursuant to this section with the city, county, or city and county department of environmental health in the city, county, or city and county in which the swimming pool is located. The form shall be filed within 30 days following the completion of the swimming pool construction or installation required pursuant to this section or, if the construction or installation is completed prior to the date that the department issues the form pursuant to this section, within 30 days of the date that the department issues the form. The public swimming pool owner or operator shall not make a false statement, representation, certification, record, report, or otherwise falsify information that he or she is required to file or maintain pursuant to this section.

(i) In enforcing this section, health officers and directors of city, county, or city and county departments of environmental health shall consider documentation filed on or with the form issued pursuant to this section by the owner of a public swimming pool as evidence of compliance with this section. A city, county, or city and county department of environmental health may verify the accuracy of the information filed on or with the form.

(j) To the extent that the requirements for public wading pools imposed by Section 116064 conflict with this section, the requirements of this section shall prevail.

(k) The department shall have no authority to take any enforcement action against any person for violation of this section and has no responsibility to administer or enforce the provisions of this section.

Related Links

Increased Maintenance Requirements for HOA Pools in California – Published on HOA Lawyer Blog (10/31/15)