Judge: Mark A. Young, Case: 21SMCV01015, Date: 2023-09-19 Tentative Ruling

Case Number: 21SMCV01015    Hearing Date: January 5, 2024    Dept: M

CASE NAME:           Gordon v. Villa San Michele Owners Assoc., et al.

CASE NO.:                21SMCV01015

MOTION:                  Motion for Summary Adjudication

HEARING DATE:   1/5/2024

Legal Standard

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (CCP, § 437c(f)(1).) If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.)  “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (CCP, § 437c(t).) 

            To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (CCP, § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (CCP, § 437c(e).) 

            Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) 

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.) 

EVIDENTIARY ISSUES

Plaintiff requests judicial notice of: 1) an Interspousal Grant Deed, recorded on May 18, 2019, in the Official Records of the County of Los Angeles as Document No. 20190577282; and 2) Covenants, Conditions, and Restrictions for Villa San Michele Owners Association, recorded on August 2, 2019, in the Official Records of the County of Los Angeles as Document No. 20190772951 (the “CC&Rs”). The request is GRANTED. (Evid. Code § 452(c).)

The Court notes the Complaint has no evidentiary value and cannot support Plaintiff’s initial burden on this motion. Thus, certain material facts are not supported by admissible evidence. (See, e.g., UMF 3-4, 8-9, 13-14, 18-19, 23-24, 28-29.)

Analysis

Plaintiff Mila Gordon moves for summary adjudication against Defendant Villa San Michele Owners Association (the “HOA”) as to certain issues of duty, including:

1. The HOA owed a duty to maintain the common areas in good repair;

2. It owed a duty to provide common area landscaping and to assure that such landscaping

was properly irrigated, trimmed, and maintained;

3. It owed a duty to maintain and repair “roofs, downspouts and all exterior surfaces of all

condominium buildings, all balconies, walls, gates, exterior electrical and plumbing

facilities, concrete walks, steps and driveways, the pool, Jacuzzi, sauna building and pool

machinery, and all other facilities of the Villa not within an individual unit”;

4. It owed a duty to repair and maintain all common area damaged by the presence of wood-

destroying pests or organisms;

5. It owed a duty to assume the costs of termite treatment and elimination; and

6. It owed a duty to exercise due care in maintaining, repairing, and replacing common

area.

To demonstrate these duties, Plaintiff presents the CC&Rs which governs her property and the HOA. (UMF 1-2.) Plaintiff owns 13206A Fiji Way, Marina del Rey, CA 90292 (the Property). (UMF 1.) The Property is part of a 64-unit condominium project governed by the CC&Rs and managed by Defendant Villa San Michele Owners’ Association (the “HOA”). (UMF 2.)

Covenants and restrictions in recorded declarations, such as the CC&Rs, are enforceable

equitable servitudes. (Civ. Code, § 5975.) The CC&Rs bind not only the property owners, but also the homeowners’ associations that they’re part of. “[S]ettled principles of condominium law establish that an owners association, like its constituent members, must act in conformity with the terms of a recorded declaration.” (Civ. Code, § 5975(a); Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 268.) Thus, to meet her initial burden as to an issue of duty, Plaintiff must simply demonstrate that the relevant duty is present in the CC&Rs.

1- Maintain the Common Areas in Good Repair

The CC&Rs provide that the HOA “shall maintain in good repair all common areas.” (UMF 5.) Indeed, Art. III(3) of the CC&Rs provides the “general duties” of the HOA include “the exclusive obligation and right to: (a) Maintain and otherwise manage all of the common area and all facilities, improvements, and landscaping within the Villa.” Thus, the CC&Rs explicitly obligate the HOA to maintain the common area in good repair. Plaintiff meets her burden on this issue of duty. As the motion is unopposed, there is no dispute of material fact. Accordingly, the motion is GRANTED as to issue no. 1.

2- Maintain Common Area Landscaping

Art. IV(1) of the CC&Rs states: The Association shall provide landscaping and gardening services for all common areas and shall assure that all landscaping is properly irrigated, trimmed and maintained. (UMF 10.) Here, the CC&Rs provides this express duty. Therefore, Plaintiff meets her burden on this issue of duty. As the motion is unopposed, there is no dispute of material fact. Accordingly, the motion is GRANTED as to issue no. 2.

3- Maintain Roofs, Downspouts and all Exterior Surfaces, etc.

Art. IV(1) of the CC&Rs requires the HOA to:

repair and maintain the roofs, downspouts and all exterior surfaces of all condominium buildings, all balconies, walls, gates, exterior electrical and plumbing facilities, concrete walks, steps and driveways, the pool, Jacuzzi, sauna building, and pool machinery, and all other facilities of the Villa not within an individual unit.

Plaintiff meets her burden on this issue of duty by presenting the relevant CC&Rs. As the motion is unopposed, there is no dispute of material fact. Accordingly, the motion is GRANTED as to issue no. 3.

4- Repair Common Areas Damaged by “Wood-Destroying Pests or Organisms”

Here, there is both a statutory and CC&Rs’ duty. Under the Davis-Stirling Act, “unless otherwise provided in the declaration, the association is responsible for the repair and maintenance of the common area occasioned by the presence of wood-destroying pests or organisms.” (Civ. Code, § 4780(a).) Further, under the CC&Rs: “The Association has the responsibility to repair and maintain any common area damaged by the presence of wood-destroying pests or organisms.” (UMF 20.) Plaintiff meets her burden to show that the HOA must repair and maintain common area damaged by wood-destroying pests.

Accordingly, the motion is GRANTED as to issue no. 4.

5- Assume the Costs of Termite Treatment and Elimination

Plaintiff argues that the HOA owed the duty to “assume the costs of termite treatment and elimination.” However, the CC&Rs do not provide for this broad duty. Instead, the HOA “assumes the costs of treatment and elimination of termites within the Villa through the Board’s designated exterminator.” (UMF 25, emphasis added.) The HOA would not assume the costs of treatment if not through the Board’s designated exterminator. Thus, Plaintiff fails to show that the HOA has the proffered duty and the motion is denied as to issue no. 5.

6- Exercise “Due Care” in Maintaining, Repairing, and Replacing the Common Area

Plaintiff contends that the HOA owed a duty to exercise “due care” in “maintaining, repairing, and replacing” the “common area.” Specifically, Plaintiff argues that the HOA has a common law duty to do so. Plaintiff does not meet her burden of persuasion on this point. Plaintiff cites Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condominium Assn. (2008) 166 Cal.App.4th 103 for this proposition. However, Ritter provides a more specific duty:

Traditional tort principles impose on landlords, including homeowners associations, that function as a landlord in maintaining the common areas of a large condominium complex, a duty to exercise due care for the residents’ safety in those areas under their control.

(Ibid. [emphasis added].) There is no support for the proposition that a HOA must exercise due care in maintaining the common areas disconnected from resident’s safety. Thus, the Court is not inclined to grant adjudication of the issue of duty as phrased by Plaintiff. Accordingly, the motion is DENIED as to issue no. 6.