Judge Michael J. Strickroth, Case 2020-01166358 2023-07-31 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2020-01166358, Date: 2023-07-31 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

The Motion for Summary Adjudication by Plaintiff Igor Olenicoff, as Trustee of the Olenicoff Personal Residence Trust is DENIED.

Plaintiff moves for summary adjudication as to 22 separate issues, including:

1. Defendant Emerald Bay Community Association’s (HOA) duty to enforce Article 8, Section 1 of the CC&Rs;

2. HOA’s duty to enforce the Architectural Regulations of the HOA, Appendix D;

3. The entirety of Plaintiff’s Second Cause of Action for Breach of CC&Rs; and

4. 19 affirmative defenses asserted in the HOA’s answer.

The HOA’s Objections to Evidence do not comply with California Rules of Court, Rule 3.1354(b)(3) because they do not quote or set forth the objectionable statement or material as to each objection. The Court declines to rule on Defendant’s objections as immaterial to the Court’s decision on the motion, but Defendant’s objections are preserved for appeal. Reid v. Google, Inc. (2010) 50 Cal.4th 512, 526.

Plaintiff’s separate statement of undisputed facts does not comply with California Rules of Court, Rule 3.1350(b), which states in part, “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” Here, Plaintiff’s separate statement includes 25 undisputed facts, but Plaintiff does not specify which undisputed facts correspond to each of the 22 issues which Plaintiff seeks summary adjudication of. Nonetheless, the Court will address the merits of the motion.

Code of Civil Procedure section 437c(f)(1) provides,

“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. 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.”

Code of Civil Procedure section 437c(p)(1) states,

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”

Issue No. 1 - HOA’s duty to enforce Article VIII, Section 1 of the CC&Rs:

Article VIII, Section 1 of the CC&Rs states at paragraph 8:

“Mitigation of View Obstruction. A fundamental objective of the Board of Directors and the Architectural Committee shall be to adopt and enforce a strong policy of preserving and protecting the views of existing homes in Emerald Bay. The hillside orientation and ocean vistas of the Community make the views a unique feature that account for a substantial portion of the value of the property in Emerald Bay. It is recognized, however, that each property owner has a right to construct a residence on his property to the maximum of the restrictions on height, mass, and lot coverage as set forth in Schedule ‘A’. The Board of Directors and Architectural Committee shall attempt to balance the need to protect views while not unduly intruding on the rights of construction of each property owner. To effectively implement this policy, the Architectural Committee shall require in its procedure a concept meeting with an applicant before any plans are submitted in order to identify the potential view impact and develop alternative proposals to preclude, minimize, or offset unreasonable view obstruction.” (UMF 6; Plaintiff’s Declaration, Exhibit 1.)

The HOA does not dispute it is governed by Article VIII, Section 1, paragraph 8 of the CC&Rs. While Plaintiff has shown that Article VIII, Section 1 of the CC&Rs applies, and that provision states a general intent to protect the views of residents, the motion fails to clearly specify what issue of duty Plaintiff wants the Court to adjudicate. The motion apparently seeks adjudication of the application of Article VIII, Section 1 to the specific facts of the present dispute involving a tree on neighboring property, which Plaintiff contends obstructs his ocean views in violation of the CC&Rs.

Plaintiff has not demonstrated there is no triable issue of the HOA’s duty with regard to the neighboring tree under Article VIII, Section 1 of the CC&Rs. Whether the HOA had a duty to take specific action regarding the disputed tree in order to meet the broad objectives of “preserving and protecting the views of existing homes” is a triable issue of material fact. There are triable issues as to the HOA’s duties under Article VIII, Section 1 of the CC&Rs as applied to the facts of this case.

Therefore, the motion is denied as to issue no. 1.

Issue No. 2 - HOA’s duty to enforce the Architectural Regulations of the HOA, Appendix D:

Plaintiff’s undisputed facts do not quote any portion of the Architectural Regulations. However, Plaintiff’s facts 15 and 20 state the following:

“15. For decades, the HOA enforced the maintenance of the Noncompliant Trees located on property owned by the HOA in order to uphold the HOA's obligation to preserve the ocean views from the Olenicoff Property. Previously and consistently the HOA made requests to the owner of Kinstler property to trim the Noncompliant Trees at frequent intervals and to such a height so as to not cause an obstruction. The HOA admitted that such maintenance was required under the CC&Rs and enacted Architectural Regulations at Appendix D to specify the procedures when there was a view obstruction in Emerald Bay.”

“20. The Noncompliant Trees are Ficus trees, a particularly invasive plant which is fast growing. The CC&Rs and the Architectural Regulations do not approve of the placement of Ficus trees in Emerald Bay as the trees require near constant maintenance to prevent excessive growth thereby impacting the ocean views of neighboring properties.”

The Architectural Regulations are attached as Exhibit 7 to Plaintiff’s declaration. Appendix D is entitled, “Landscape View Obstructions.” Appendix D provides that the Architectural Committee may appoint a Tree Committee and sets out a process by which a complaint involving an alleged unreasonable view obstruction will be resolved.

While it is undisputed the Architectural Regulations apply to the HOA, Plaintiff fails to identify any specific issue of duty of the HOA under a particular provision of Appendix D, as applied to the facts of this case, for the Court to summarily adjudicate. For example, Plaintiff’s separate statement does not specify any aspect of the complaint process in Appendix D which the HOA failed to follow. There are triable issues of material fact as to the scope of the HOA’s duties under Appendix D, as applied to the specific facts of this case.

Therefore, the motion is denied as to issue no. 2.

Issue No. 3 - The entirety of Plaintiff’s Second Cause of Action for Breach of CC&Rs:

As discussed above, Plaintiff has failed to demonstrate there is no triable issue of material fact as to an issue of the HOA’s duties under the CC&Rs. Therefore, Plaintiff has failed to show there is no triable issue of material fact as to the second cause of action for violation of the CC&Rs.

The Court cannot summarily adjudicate an issue of breach of duty under Code of Civil Procedure section 437(f)(1), unless the issue disposes of an entire cause of action. Therefore, the Court does not reach the issue of whether the HOA breached a duty under the CC&Rs.

Plaintiff has also failed to show there is no triable issue of material fact as to his damages alleged in the First Amended Complaint. To the extent Plaintiff seeks damages as an element of his claim, the Court is unable to adjudicate the issue of liability under Code of Civil Procedure section 437c(f)(1) without adjudicating the element of damages. Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241.

Therefore, the motion is denied as to Issue No. 3.

Issues 4 through 22 – Defendant’s affirmative defenses asserted in the HOA’s answer:

Plaintiff moves for summary adjudication of the HOA’s affirmative defenses numbered 1-18 and 23. Plaintiff’s motion does not discuss the elements or required factual showing of any of Defendant’s affirmative defenses. However, Plaintiff contends Defendant’s responses to Plaintiff’s interrogatories, which asked the HOA to state all facts and identify all documents in support of its affirmative defenses, were factually devoid. Plaintiff contends Defendant served the same response to each interrogatory regarding affirmative defenses 1-18 and 23:

“Responding Party acted reasonably, prudent, in good faith, in accordance with its legal and fiduciary duties, and in accordance with applicable codes and industry practice to benefit the entirety of Responding Party’s Membership at all relevant times. Propounding Party waived the right to challenge the Association’s actions or inaction. Propounding Party’s requested relief conflicts with the rights and obligations of the Association. Any action or decision made by the Association was within the scope of their authority, based on reasonable investigations, made in good faith, and made with regard for the best interests of the Association’s Members. Propounding Party’s claims fail because they delayed in seeking any requested relief. Propounding Party’s claims fail because they are time barred. Propounding Party failed to comply with the provisions of the CC&Rs and other governing documents of the Association. Propounding Party’s, or its agent’s own negligence and failure to exercise due care contributed to Propounding Party’s injuries and damages, if any. Propounding Party has failed to mitigate its damages. Propounding Party consented to the Association’s actions. Responding Party did not breach any duty or contractual obligation to Propounding Party. Propounding Party has failed to reasonably allege any harm or injury has occurred. To the extent Propounding Party suffered any damages, Propounding Party failed to act reasonably at all relevant times and is the cause of its own damages.” (UMF 24.)

Although Defendant’s discovery responses are repetitive and use broad language, they generally refer to facts supporting Defendant’s affirmative defenses. Plaintiff has failed to raise specific arguments or cite applicable legal authority regarding the viability of any of the 19 affirmative defenses which are encompassed in the motion. Plaintiff has not met his burden to demonstrate there is no triable issue of material fact as to any of Defendant’s affirmative defenses.

Therefore, the motion is denied as to issues 4-22.

Defendant to give notice.