Judge: Helen Zukin, Case: 19SMCV00674, Date: 2023-02-10 Tentative Ruling
Case Number: 19SMCV00674 Hearing Date: February 10, 2023 Dept: 207
Background
Plaintiff Jobst Singer (“Plaintiff”) is the owner of a unit
in a condominium complex located in Santa Monica, California. Plaintiff brings
this action against the homeowner’s association for this complex, Defendant
Casa de Colores Home Owners Association (the “Association”) as well as its
current and former directors and officers of the Association’s board, including
Defendant Xiatong Cheng (“Cheng”), Defendant Ye Yuan (“Yuan”), Defendant
Dietrich Kirks (“Kirks”), and Defendant Elisa Justice (“Justice” or, collectively
with the Association, Cheng, Yuan, and Kirks, “Defendants”). Plaintiff’s
operative Second Amended Complaint asserts causes of action against Defendants
for breach of contract, breach of fiduciary duty, and negligence, stemming from
allegations that Defendants failed to maintain the common areas of the complex
and failed to abide by and enforce the Covenants, Conditions, and Restrictions
for the complex. Plaintiff also asserts a cause of action against Yuan for
nuisance. Yuan at one time owned the unit directly above Plaintiff’s, and
Plaintiff asserts noises from Yuan’s unit constituted a nuisance.
Defendants jointly move for summary judgment on all of
Plaintiff’s causes of action asserted against them. Plaintiff opposes the
motion.
Objections to Evidence
Defendants object to Plaintiff’s opposition and supporting
exhibits, arguing they were untimely filed. Defendants are correct that
Plaintiff’s opposition is untimely. Defendants’ summary judgment motion was
filed on October 20, 2022, and set for hearing on January 5, 2023. At the time
Defendants’ motion was filed, trial in this case was scheduled for February 6,
2023. On December 7, 2022, Plaintiff brought an ex parte application asking the
Court to continue the trial date and hearing date on Defendant’s motion to
grant him additional time to respond. The Court granted Plaintiff’s request on
December 8, and continued trial in this action to March 6, 2023, and the
hearing date on Defendant’s summary judgment motion to February 10, 2023.
Pursuant to Code Civ. Proc. § 437c(b)(2), Plaintiff’s opposition was due to be
filed and served no later than January 27, 2023. Under Code Civ. Proc. §
437c(b)(4), Defendant’s reply was due no later than February 3, 2023.
Plaintiff failed to file any opposition by January 27. On
January 30, Plaintiff filed an untimely opposition brief incorrectly captioned
as a declaration, along with a response to Defendants’ separate statement.
Plaintiff also lodged certain exhibits with the Court at that time. On January
31, 2023, Plaintiff lodged additional exhibits in support of his opposition. On
February 1, 2023, Plaintiff filed a document offering additional argument in
response to the exhibits Defendants submitted with their motion. That same day,
Plaintiff filed an additional copy of his responsive separate statement. On
February 2, Plaintiff lodged additional exhibits with the Court.
Each of Plaintiff’s filings in opposition to Defendants’
motion are untimely. California Rules of Court, rule 3.1300(d) gives the Court
discretion in whether to consider untimely filings. As the law favors the
resolution of disputes on their merits, the Court, in its discretion, will
consider the documents filed and lodged by Plaintiff on January 30, 2023.
However, the Court will not consider the documents filed or lodged by Plaintiff
on January 31, February 1, or February 2. Given Defendants only had until
February 3 to prepare and file a reply responding to Plaintiff’s opposition,
the Court finds they were materially prejudiced by Plaintiff’s late filing of
these documents, particularly in light of the Court’s granting of Plaintiff’s
request for a trial continuance to give him additional time to prepare and file
an opposition to Defendants’ motion.
While the Court acknowledges Plaintiff is not represented by
counsel in this action, it is settled that a pro per litigation is ultimately “entitled to the same, but no greater, consideration than other
litigants and attorneys.... Further, the in propria persona litigant is held to
the same restrictive rules of procedure as an attorney.” (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113,
1125–1126.) “A litigant has a right to act as his own attorney [citation] ‘but,
in so doing, should be restricted to the same rules of evidence and procedure
as is required of those qualified to practice law before our courts; otherwise,
ignorance is unjustly rewarded.’ [Citation.]” (Lombardi v. Citizens Nat'l
Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209.)
Defendants also raise numerous objections to Plaintiff’s
opposition. To the extent they have not been rendered moot by the Court’s
ruling above with respect to Plaintiff’s untimely filing, the Court SUSTAINS
Defendants’ objections numbers 1-11, 17, and 27. Defendant’s objections are otherwise
OVERRULED.
Summary Judgment Standard
Motions
for summary judgment are governed by Code Civ. Proc. § 437c, which allows a
party to “move for summary judgment in an action or proceeding if it is
contended that the action has no merit or that there is no defense to the
action or proceeding.” (C.C.P. § 437c(a)(1).) The function of a motion for
summary judgment or adjudication is to allow a determination as to whether an
opposing party cannot show evidentiary support for a pleading or claim and to enable
an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code
Civ. Proc. § 437c(c) “requires the trial judge to grant summary judgment if all
the evidence submitted, and ‘all inferences reasonably deducible from the
evidence’ and uncontradicted by other inferences or evidence, show that there
is no triable issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” (Adler
v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose
whether there is any triable issue of fact within the issues delimited by the
pleadings.” (Juge v. County of Sacramento
(1993) 12 Cal.App.4th 59, 67, citing FPI
Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) Courts
“liberally construe the evidence in support of the party opposing summary judgment
and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006)
39 Cal.4th 384, 389.)
As to
each claim as framed by the complaint, the defendant moving for summary
judgment must satisfy the initial burden of proof by presenting facts to negate
an essential element, or to establish a defense. (C.C.P. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support
of the party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party.” (Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Once the defendant
has met that burden, the burden shifts to the plaintiff to show that a triable
issue of one or more material facts exists as to that cause of action or a
defense thereto. To establish a triable issue of material fact, the party
opposing the motion must produce substantial responsive evidence. (C.C.P. §
437c(p)(2); Sangster v. Paetkau
(1998) 68 Cal.App.4th 151, 166.)
Analysis
Plaintiff’s causes of action for
breach of contract and breach of fiduciary duty arise from two broad categories
of alleged conduct: (1) Defendants’ alleged failure to maintain the common
areas of the complex, and (2) Defendants’ alleged failure to permit Plaintiff
to inspect and review association records, “including expenses and invoices,
bank records, and the roof warranty.” (SAC at ¶20.) Defendants argue
Plaintiff’s claims against them concerning the maintenance of the common areas
are barred by the business judgment rule and related policy of judicial
deference toward decisions made by the directors of a homeowners association as
established by a line of cases beginning with Lamden v. La Jolla Shores
Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249.
Under Lamden, “where a duly
constituted community association board, upon reasonable investigation, in good
faith and with regard for the best interests of the community association and
its members, exercises discretion within the scope of its authority under
relevant statutes, covenants and restrictions to select among means for discharging
an obligation to maintain and repair a development’s common areas, courts
should defer to the board’s authority and presumed expertise.” (Id. at
265.) “[T]he judicial deference rule applies to an association board’s
discretionary decisions concerning the operation of the common interest
development….” (Eith v. Ketelhut (2018) 31 Cal.App.5th 1, 16.) “[T]he
defendant has the burden of establishing the requisite elements for applying
the rule.” (Affan v. Portofino Cove Homeowners Assn. (2010) 189
Cal.App.4th 930, 940-941.)
Defendants have carried their
initial burden in showing their decisions regarding the maintenance of the
common areas concerning the water leak and security cameras were made upon reasonable
investigation, in good faith, and with regard for the best interest of the
community and its members. The burden thus shifted to Plaintiff to establish a
triable issue of material fact remains regarding any of the Lamden
elements. Plaintiff has failed to carry this burden by providing evidence
indicating Defendants acted without reasonable investigation, in bad faith, or
not in the best interests of the complex and its members. However, as
Defendants have moved for summary judgment, not summary adjudication, the Court
cannot find in its favor on Plaintiff’s claims relating to the common areas of
the complex unless Defendants establish they are also entitled to judgment in
their favor on Plaintiff’s claims relating to Plaintiff’s record requests.
The rule of judicial deference does
not immunize Defendants from liability for Plaintiff’s claims relating the
inspection of the Association’s records. The Lamden rule absolves an
individual director who “exercises discretion within the scope of its authority
under relevant statutes, covenants and restrictions.” (Lamden, supra,
21 Cal.4th at 253.) Defendants have not established they have any discretion
under the relevant statutes, covenants, or restrictions to refuse a request for
records. Indeed, Defendants do not dispute the Association has an obligation to
make records available for Plaintiff’s inspection. (See Corp. Code § 8333 [“The
accounting books and records and minutes of proceedings of the members and the
board and committees of the board shall be open to inspection upon the written
demand on the corporation of any member at any reasonable time, for a purpose
reasonably related to such person’s interests as a member”]; CC&R’s, Ex. B
to Stevenson Decl. at § 15.04(a) [“The Association shall make available to any
Owner, any First Lender and any insurer or guarantor of any First Mortgage,
current copies of the Declaration, Bylaws, Association Rules and any other
rules or Management Documents concerning the Project, and the books, records
and financial statements of the Association. ‘Available’ means available for
inspection, upon request, during normal business hours or under other
reasonable circumstances”].)
The judicial deference rule will
only apply where a board’s decision is consistent with a complex’s Covenants,
Conditions, and Restrictions:
Lamden did not purport to extend judicial deference to board
decisions that are outside the scope of its authority under its governing
documents. Lamden specifically reaffirmed the principle that, “ ‘Under
well-accepted principles of condominium law, a homeowner can sue the
association for damages and an injunction to compel the association to enforce
the provisions of the declaration.’ [Citation.]”
(Ekstrom v. Marquesa at Monarch
Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111, 1123 [quoting Lamden,
supra, 21 Cal.4th at 268-269].) The judicial deference rule also only
applies to an affirmative decision made by the board and does not shield
directors for liability stemming from a failure to act. (Affan v. Portofino Cove Homeowners Assn. (2010) 189 Cal.App.4th 930, 942 [“The judicial
deference doctrine does not shield an association from liability for ignoring
problems; instead, it protects the Association's good faith decisions to
maintain and repair common areas”].)
Defendants Cheng, Yuan, Kirks, and
Justice have submitted declarations in support of Defendants’ motion. Each of
these declarations contains an identical paragraph regarding Plaintiff’s
requests for records:
Mr. Singer
would also make frequent document requests during his residency. At times, he
has sent requests for different documents only weeks apart. The board had done its
best to maintain the required records and made records required by the Civil
Code available to Mr. Singer on multiple occasions. The problems are that the
HOA does not have the records that Mr. Singer believes it should have, and Mr.
Singer repeatedly refuses to pay for the cost of copying the records. I
attached a true and correct copy of communications to Mr. Singer regarding the
grant of access to records to him as Exhibit G to Defendants’ Separately Bound
Exhibits.
(Kirks Decl. at ¶14; Cheng Decl.
at ¶14; Justice Decl. at ¶13; Yuan Decl. at ¶9.)
The “Exhibit G” referenced in this
paragraph is comprised of three separate documents: (1) a June 17, 2015, letter
to Plaintiff from the Association’s counsel stating it would make unspecified
records available for copying or inspection; (2) a February 5, 2019, “Answer”
from J & N Realty, Inc. to Richard Weiss stating “Statements or documents
not available, collected, or prepared could not be provided” to Plaintiff; and
(3) minutes from a February 6, 2021, Association meeting stating Plaintiff
“Will not pay $250 to obtain the requested records re: plumbing, fine &
CC&R violations.”
Taken together, the Court finds
this evidence fails to carry Defendants’ initial burden of showing Plaintiff
cannot establish an essential element of his claims for breach of contract or
breach of fiduciary duty based on Defendants’ failure to properly provide
records for inspection and/or copying. As set forth above, Defendants
acknowledge Plaintiff made frequent requests for records. That Defendants did
not breach their obligations with respect to the three instances indicated in
the Exhibit G documents does not show they never breached their obligation to
make Association records available for inspection. Defendants’ motion appears
to acknowledge there have been times when they failed to properly respond to
Plaintiff’s requests:
The board has frequently met with Mr.
Singer and have repeatedly given him access to documents. Any technical breach
of this obligation is merely because Mr. Singer causes so many problems and
makes so many requests that keeping up with them is overly burdensome and is
likely a scheme by Mr. Singer to create technical breaches.
(Motion at 22.) Defendants offer no authority or argument
illustrating how such admitted “technical breaches” are insufficient to support
claims for breach of contract and breach of fiduciary duty as a matter of law. The
Court thus finds a triable issue of material fact exists as to whether
Defendants breached their obligation to provide Plaintiff with records
pertaining to the Association’s expenses and
invoices, bank records, and roof warranty as alleged in the SAC. As the Court
can only grant summary judgment on all of Plaintiff’s claims, the existence of
a triable issue of material fact with respect to the first and second causes of
action for breach of contract and breach of fiduciary duty compels the Court to
deny Defendants’ motion. Accordingly, the Court need not consider Defendants’
arguments with respect to Plaintiff’s causes of action for negligence and
nuisance, and the Court declines to do so.
Conclusion
Defendant’s motion for summary judgment is DENIED.