Defendant Trabuco Highlands Community Association moves for summary judgment as to the Second Amended Complaint of Plaintiff Jennifer Loeffler.? In the alternative, Defendant moves for summary adjudication of 13 issues.
The SAC contains four viable causes of action against the Defendant, which are:? the first cause of action for quiet title; the second cause of action for declaratory relief; the third cause of action for breach and enforcement of CC&Rs; and the sixth cause of action for slander of title.
Issue 1:? Whether the first cause of action for quiet title fails as to the moving defendant because Tract 16677 was annexed into the Association upon approval by vote or written consent of members entitled to no less than 2/3rds of the voting power of the Association.
The first cause of action is for quiet title.? It alleges that the easements and assessments supposedly created by the CC&Rs, notice of addition, and liens, release, and notice of default create clouds on Plaintiff?s title and potential future adverse claims against Plaintiff?s ownership of the property and her continued peaceful possession of the property.? (SAC, ?? 93-95.)? It alleges that Plaintiff seeks to quiet title against Defendant and others on the ground that her property was not properly annexed into the common interest development upon the approval by vote or written consent of members entitled to exercise no less than two-thirds of the voting power of Defendant?s members as of the date of the execution and recording of the notice of addition such that the property is not subject to the assessments that are the basis of the liens, release, and notice of default.? (SAC, ? 97.)
Defendant contends that this cause of action fails because the tract in which Plaintiff?s property is located was properly annexed into the HOA by vote or approval of two-thirds of the members.? In support of this argument, Defendant offers the declaration of Cathy Acquazzino at ?? 10 and 12 and exhibits 4, 6, and 7 thereto, the declaration of Derek J. McGregor at ?? 6-7, and the declaration of Don Chadd at ?? 5-7 for the fact that, ?[b]y mid-June 2007, weeks prior to the voting cut-off time set forth in the ballots, the Association had received more than 543 ballots voting YES for the Annexation, which represented more than 2/3rds of the voting power of the Association.?? (Defendant?s fact 13.)
Ms. Acquazzino is an owner and officer of the Defendant?s managing agent.? In ? 10 of her declaration, she attests that, within two weeks after the managing agent mailed the ballots for the annexation, it received 430 responses from members and that, by the end of May 2007, about 71% of the members mailed their ballots to the Defendant.? In ? 12, she attests that, by June 2007, the managing agent received more than 543 ballots in favor of the annexation, which represented more than two-thirds of the members.? She further attests that the minutes of the Board of Directors of June 13, 2017 reflect that the Board instructed the managing agent to announce to the members in its next newsletter that the annexation was a ?great success.?? Exhibit 6 is a copy of the minutes and Exhibit 7 is a copy of the newsletter.
Mr. McGregor is a resident and member of Defendant?s Board of Directors.? In ? 6 of his declaration, he attests that he was a board member in 2007 and involved in the election.? In ? 7, he attests that, in June 2007, Defendant received more than 543 ballots in favor of the annexation, which exceeded the two-thirds threshold.
Mr. Chadd is also a resident and member of the Board of Directors.? In ? 5 of his declaration, he attests that, on December 23, 2012, he executed the notice of addition in his capacity as president of the association and that the document was then recorded on the next day.? In ? 6, he attests that he believed that the Defendant obtained the requisite number of votes and written consents for the annexation.
This evidence is sufficient for Defendant to show that the annexation was proper and shift the burden to the Plaintiff to show that there is a triable issue of material fact with regard to this issue.
Plaintiff disputes fact 13 and cites the declaration of attorney Steven Rader at ?? 4-6 and Exhibits 103-105.? In ? 5 of his declaration, Mr. Rader attests that he reviewed redacted ballots produced by defendant and that, of the ballots, there were 51 that could not be cross-referenced to members.? Exhibits 103 and 104 are hearsay and inadmissible.? Exhibit 105 is the response of Defendant to Plaintiff?s second set of special interrogatories served on or about July 15, 2018.
Having reviewed the evidence, the Court concludes that Plaintiff fails to raise a triable issue of fact as to this issue and the motion for summary adjudication as to Issue No. 1 is GRANTED.
Issue 2:? Whether the first cause of action for quiet title fails as to the moving defendant because plaintiff is time-barred from challenging an election or vote that occurred over eight years before she filed suit.
Defendant also contends that the first cause of action for quiet title fails because it is untimely.? Defendant contends that the limitations period for the claim is three years from the time of the vote under subdivision (a) of Civ. Code ? 5145, and that the action was not filed until 2016.? Subdivision (a) provides that a member of a HOA ?may bring a civil action for declaratory or equitable relief for a violation of this article by the association, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues.?? It further provides that a court may void any results of the election upon a finding that the election procedures set forth in the Code were not followed.
In support of issue 2, Defendant offers three facts (facts 14-16), including the fact that the vote occurred in 2007 but the notice of addition of territory and supplemental declaration of CC&Rs was not recorded until December 31, 2012.? (Fact 14.)
Plaintiff responds by arguing that the cause of action is not subject to the one year limitations period because it is for quiet title.? Yet ? according to Plaintiff?s SAC — the basis of the quiet title claim is the validity of the annexation and the underlying vote.? It appears that defendant?s argument is valid, and summary adjudication as to Issue No. 2 is GRANTED.
Issue 3:? Whether the third cause of action for enforcement of CC&Rs fails because: (1) the Association?s historical methodology of computing assessment amounts does not violate the governing documents or DRE Rules and (2) the Association?s procedures and decisions regarding the architectural modifications by the Strapps are protected by the rule of judicial deference.
The third cause of action is for breach and enforcement of the CC&Rs and it is asserted against the moving Defendant as well as Co-Defendants Rene and Diane Strapp and Larry and Diane Stern.? It alleges that: (1) the moving Defendant has not properly imposed and collected assessments against Plaintiff?s property and other properties as provided in the CC&Rs; and (2) the Strapps and the Sterns violated the CC&Rs by installing and maintaining exterior improvements to their properties without architectural approval and prior neighbor notifications and the moving Defendant has not enforced its rules against them.? (See SAC at ?? 109-110 and 112-113.)
Defendant challenges both of the claims within this cause of action.? In its notice of motion, the second part of the issue only references the Strapps.? However, the issue as stated in the separate statement includes the Sterns, and the obvious error will be overlooked.
Defendant offers 49 facts in support of this issue, i.e. facts 17-65.? Facts 17 through 33 address the assessment issue and facts 34 through 65 address the enforcement issue.? Defendant contends that it has complied with its CC&Rs because the governing documents authorize it to impose different amounts of assessments to reflect the unique characteristics of each product line, i.e., subdivision.? It also contends that Plaintiff was aware that Defendant charged different assessments because she signed a disclosure form when she purchased her property.
Defendant?s fact 19 is that the CC&Rs provides that annual assessments, capital improvement assessments, and reconstruction assessments ?shall be assessed?equally?and?uniformly?against all Owners and their Lots.?? (emphasis added).? Defendant?s fact 33 is that, since 2013, the defendant ?made a good faith determination that the current formula and methodology used by the Association to calculate the amount of assessments to the Vista/Fieldstone and all other Product Lines within the Association bear a relationship which is equitably proportionate to the value of the common services furnished to each Product Line.?
Defendant has not shown that Plaintiff cannot establish her claims or alternatively, Defendant has not established a complete defense to this cause of action.? Summary adjudication of the third issue in favor of the moving defendant is therefore not appropriate on this issue No. 3.
Issue 4:? Whether the second cause of action for declaratory relief fails because there is no actual controversy relating to the annexation and unequal assessment amounts.
The second cause of action is for declaratory relief.? It alleges that there is a controversy between Plaintiff and the moving Defendant regarding ?their respective rights and interests in the Subject Property and the enforceability and legal effect of the CC&R?s, the Notice of Addition, the liens, release, and Notice of Default, improperly recorded in the chain of title for the Subject Property.?? (SAC, ? 101.)? It also alleges that there is a controversy between the Plaintiff and the moving Defendant regarding the interpretation of the moving Defendant?s imposition and collection of ?unequal assessments among the various separate interests within the common interest development.?? (SAC, ? 102.)
Defendant contends that the second cause of action fails because there are no triable issues of fact regarding the annexation or the methodology for computation of assessment amounts.
Defendant offers 32 facts in support of this issue, i.e., facts 66 through 97.? Fact 78 is that, by mid-June 2007, defendant had received more than 543 ballots voting in favor of the annexation, which represented more than two-thirds of the voting power of the association.? This fact is similar to fact 13, and it is disputed by the plaintiff, who cites the same evidence to dispute this fact as she did to dispute fact 13. Accordingly, the Court?s same analysis applies.
Defendant?s fact 93 is identical to fact 33, which was offered in support of issue 3.? However, as previously noted, this fact does not disprove Plaintiff?s allegations that the assessments were not imposed or collected as provided for in the CC&Rs.? Accordingly, for this reason alone, summary adjudication of this issue is DENIED.
Issue 5:? Whether the sixth cause of action for slander of title against the Association fails because the recording of the relevant documents was proper.
The sixth cause of action is for slander of title.? Slander or disparagement of title occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes the owner thereof ?some special pecuniary loss or damage.???Sumner Hills Homeowners? Association, Inc. v. Rio Mesa Holdings, LLC?(2012) 205 Cal.App.4th 999, 1030.? The elements are of the tort are (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss.??Ibid.?? If the publication is reasonably understood to cast doubt upon the existence or extent of another’s interest in land, it is disparaging to the latter’s title.??Ibid.? The main thrust of the cause of action is protection from injury to the salability of property, which is ordinarily indicated by the loss of a particular sale, impaired marketability or depreciation in value. ?Ibid.
Plaintiff alleges in this cause of action that the moving Defendant and others ?made statements, and/or recorded documents that cast doubts on Plaintiff[?s] continued fee ownership of the Subject Property free of adverse claims and encumbrances.?? (SAC, ? 129.)? It alleges that the Defendants knew or should have known that other persons might act in reliance on the statements and recorded documents, resulting in financial loss to the Plaintiff.? (SAC, ? 131.)? It further alleges that other persons acted in reliance on the statements and recorded documents, resulting in loss to Plaintiff.? (SAC, ? 132.)
Defendant submits 16 facts in support of this issue, i.e., facts 98 through 113.? Most of these facts relate to the annexation and then fact 113 is that Plaintiff has not paid any assessment to the Defendant since July 2014.
The facts offered by Defendant do not address the allegations of this cause of action, which means that it has not met its initial burden and summary adjudication of this issue is not appropriate
Issue 6:? Whether each of the first, second, third, and sixth cause of action fails because Plaintiff?s challenge to the annexation is barred by the doctrine of laches.
Defendant contends that the Plaintiff?s challenge to the annexation is barred by the doctrine of laches and that this is a complete defense to the four viable causes of action against it.? However, the causes of action are based on more than just allegations regarding the annexation, which means that this is not a proper issue for summary adjudication.? Subdivision (h) of Code Civ. Proc. ? 437c specifically provides that ?[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.?? Summary adjudication of this issue therefore cannot be granted.
Issue 7:? Whether each of the first, second, third, and sixth cause of action fails because plaintiff?s challenge to the unequal assessment amounts is barred by the doctrine of laches.
Issue 8: Whether each of the first, second, third, and sixth causes of action fails because Plaintiff waived all claims regarding the annexation.
Issue 9: Whether each of the first, second, third, and sixth causes of action fails because Plaintiff waived all claims regarding the unequal assessment amounts.
Issue 10:? Whether each of the first, second, third, and sixth causes of action fails because Plaintiff is barred by the doctrine of equitable estoppel from challenging the annexation.
Issue 11:? Whether each of the first, second, third, and sixth causes of action fails because Plaintiff is barred by the doctrine of equitable estoppel from challenging the unequal amount of assessment.
Issues 7 through 11 are not proper issues for summary adjudication because, like issue 6, they only address parts of causes of action.? Summary adjudication cannot be granted as to only a part of a cause of action.? Accordingly the motions for summary adjudication as to these issues are DENIED.
Issue 12:? Whether the moving Defendant is entitled to summary adjudication of the sixth cause of action for slander of title because the claim is barred by the statute of limitations and the litigation privilege.
As noted, the sixth cause of action is for slander of title, and is based on allegations that the moving Defendant and others made statements, and/or recorded documents that cast doubts on Plaintiff?s continued fee ownership of the property and resulted in financial loss to Plaintiff.? (SAC, ?? 129 and 131.)
In challenging the sixth cause of action this time, Defendant contends that it fails and Plaintiff has not paid any assessments since July 2014.? Defendant offers facts that include: (1) Plaintiff has not paid any assessments to defendant since in or about July 2014 (fact 167); (2) the notices of delinquent assessment recorded on March 30, 2015 and June 24, 2015 were recorded in connection with Defendant?s efforts to collect assessments from Plaintiff (fact 169); and (3) the release recorded on June 24 released the notice of delinquent assessment recorded on March 30, 2015 (fact 170).
The evidence cited in support of fact 167 is the ?declaration? of Diane Mellring, at ? 16, (as opposed to the ?supplemental declaration? of Ms. Mellring, which was also submitted with the moving party with 8 additional exhibits).? Ms. Mellring, who is an employee of Progressive Community Management and the acting manager of the defendant, simply attests at ? 16 that Plaintiff ?has not paid her any [sic] assessments to the Association since on or about July 2014.?? The evidence cited in support of fact 169 is the declaration of Sandra L. Gottlieb at ?? 1-7 and Exhibits 1-6 thereto.? In ? 2 of her declaration, Ms. Gottlieb attests that, on June 24, 2015, Co-Defendant Association Lien Services recorded a notice of delinquent assessment for Plaintiff?s delinquency in her payments of assessments under the CC&RS.? She attests in ? 3 that, on August 4, 2015, Association Lien Services recorded a notice of default and election to sell under homeowners? association lien.? She attests in ? 4 that, on August 4, 2015, the Board of Directors signed a resolution to initiate foreclosure.? The evidentiary support for fact 170 is the release itself, for which judicial notice is requested.
Although the evidence supporting the above facts is conclusory, they show that Plaintiff did not pay her assessments and Defendant has recorded notices to collect those assessments.? Defendant has met its initial burden.? In opposition, Plaintiff does not dispute any of the facts offered in support of issue 12, which means that she has not met her responding burden.
Therefore, summary adjudication of issue 12 is appropriate and the motion as to this issue is GRANTED.
Issue 13: Whether the moving Defendant is entitled to summary adjudication as to the claim for punitive damages in the sixth cause of action because there is no evidence of fraud, oppression, or malice.
In that summary adjudication of issue 12 in favor of the moving Defendant disposes of the sixth cause of action, issue 13, which seeks to adjudicate the request for punitive damages in the sixth cause of action, is MOOT.
The motion of Defendant Trabuco Highlands Community Association for summary judgment on the complaint of Plaintiff Jennifer Loeffler is DENIED.? The alternative motion for summary adjudication of issues is GRANTED as to issues 1, 2 and 12 only.? As to all other issues, except issue 13, the motion for summary adjudication is DENIED.
Defendant to give notice.
Plaintiff?s Motion for Summary Adjudication of Issues
Plaintiff moves for summary adjudication of her first two causes of action in her second amended complaint, which are for quiet title and declaratory relief.? Defendant Trabuco Highlands Community Association has opposed the motion.
The first cause of action for quiet title alleges that the easements and assessments created by defendant?s CC&Rs and the notice of addition create clouds on her title and potential future adverse claims against Plaintiff?s fee ownership and continued peaceable possession of her property.? (SAC, ?? 93 and 94.)? It asks that the Court quiet title against the claims of the responding Defendant and others on the ground that the property was not properly annexed into the common interest development governed by the CC&Rs upon the approval by vote or written consent of members entitled to exercise no less than two-thirds of the voting power as of the date of the execution and recording of the notice of addition.? (SAC, ? 97.)
The second cause of action alleges that a controversy has arisen between Plaintiff and the responding Defendant and others regarding their rights and interest in Plaintiff?s property and the enforceability and legal effect of the CC&Rs, notice of addition, liens, release, and notice of default.? (SAC, ? 101.)? It also alleges that a controversy has arisen between Plaintiff and the responding Defendant and others concerning the interpretation of the CC&Rs and notice of addition as it relates to the imposition and collection of unequal assessments amount the various separate interests within the common interest development.? (SAC, ? 103.)? It then asks for determinations that: (1) Plaintiff?s property is not subject to the CC&Rs, notice of addition, liens, release and notice of default; and (2) the CC&Rs require that all regular assessments be assessed equally and uniformly against all owners and their lots and that plaintiff and her property cannot be subject to assessments greater that regular assessments that the responding defendant has imposed on other lots or owners within the common interest development.? (SAC, ?? 103 and 104.)
Although Plaintiff has submitted a separate statement that properly segregates the two issues presented by the motion, it does not otherwise comply with subdivision (d) of CRC 3.1350 and is patently defective.? Subdivision (d)(2) provides that the separate statement must ?include only material facts and not any facts that are not pertinent to the disposition of the motion.?? Subdivision (d)(3) provides in relevant part that the separate statement ?must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts? and that ?[c]itation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.?
Not only does the separate statement not number the facts, but it relies solely on the declaration of attorney Steven Rader and exhibits thereto.? The declaration is conclusory and contains hearsay statements.? For example, the evidentiary support for the fact that the 2012 annexation was not approved by two-thirds of the responding defendant?s eligible members is Mr. Rader?s declaration at ?? 8 and 21 and Exhibit F.? In ? 8, Mr. Rader simply attests that Exhibit F is the notice of addition and supplemental declaration of CC&Rs recorded on December 31, 2012 and in ? 21, he makes the conclusory statement that the responding Defendant did not obtain the vote or written consent of its members in 2012 and that the notice of addition contains false statements.? This is insufficient for Plaintiff to establish this fact.
Likewise, the separate statement cites the Rader declaration at ? 14 for the fact that responding Defendant did not obtain the prior written approval of the owners or first mortgagees of properties within the development before it changed the method by which assessments were determined within the development.? In ? 14, Mr. Rader simply attests that, to date, the responding Defendant ?has not presented in discovery or otherwise any documents constituting any proper written approval by its members for any change in the determination of how assessments are calculated.?
Plaintiff has not met her burden of showing that there is no defense to the first or second causes of action, i.e., she has not ?proved each element of the cause of action entitling the party to judgment on the cause of action.?? Code Civ. Proc. ? 437c(p)(1).? As a result, the burden does not shift as to either cause of action and summary adjudication is not appropriate.? The motions for summary adjudication are DENIED.
Defendant to give notice.?