Judge: Michelle Williams Court, Case: 21STCV31928, Date: 2022-08-03 Tentative Ruling

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 In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind: The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record. Oral argument is not an opportunity to simply repeat that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated. If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.


 


 




Case Number: 21STCV31928    Hearing Date: August 3, 2022    Dept: 74

21STCV31928           ANVAR SADEGHPOUR vs MONIR HOMEOWNERS ASSOCIATION

Plaintiff’s Motion for Summary Adjudication

TENTATIVE RULING:  The motion is DENIED.

Background

 

On August 30, 2021, Plaintiff Anvar Sadeghpour filed this action against Defendant Monir Homeowners Association. The complaint asserts causes of action for: (1) declaratory relief; (2) declaratory relief; (3) reformation of written instrument; (4) cancel written instrument; (5) breach of contract; (6) restitution; and (7) accounting. Plaintiff seeks to avoid a 1988 amendment to the Declaration of Covenants, Conditions, and Restrictions of Monir Condominiums.

 

Motion

 

On January 7, 2022, Plaintiff Anvar Sadeghpour filed a motion for summary adjudication seeking “summary adjudication in favor of SADEGHPOUR on the first causes of action in the Complaint for declaratory relief against the ASSOCIATION as follows:

 

-        Issue 1: The ASSOCIATION 88-Amendment is inconsistent with and in violation of both the ASSOCIATION CC&Rs UNIFORM RATE ASSESSMENT PROVISION and the ASSOCIATION 85-Amendment UNIFORM RATE ASSESSMENT EXHIBIT-A.

 

-        Issue 2: The ASSOCIATION 88-Amendment creates an improper assessment allocation against SADEGHPOUR.

 

-        Issue 3: The ASSOCIATION 88-Amendment created an improper assessment allocation against SADEGHPOUR. [Duplication by Plaintiff]

 

-        Issue 4: The ASSOCIATION 88-Amendment is voided.

 

-        Issue 5: The ASSOCIATION 88-Amendment is void on its face.

 

-        Issue 6: The ASSOCIATION 88-Amendment is voidable.

 

-        Issue 7: The ASSOCIATION 88-Amendment is void ab initio.

 

-        Issue 8: The ASSOCIATION 88-Amendment is unenforceable.

 

-        Issue 9: The ASSOCIATION 88-Amendment is invalid.

 

Opposition

 

In opposition, Defendant contends Plaintiff failed to cite any relevant legal authority in support of the motion, Plaintiff’s declaratory relief claim is barred by the statute of limitations, and the 1988 Amendment is neither void nor voidable.

 

Reply

 

Plaintiff filed two copies of the identical reply documents. In reply, Plaintiff contends declaratory relief is proper, Plaintiff only needed to provide the documents at issue for interpretation, and there is no statute of limitations issue.

 

Defendant’s Evidentiary Objections in Opposition

 

Defendant’s objections are immaterial to the Court’s disposition of the motion. (Code Civ. Proc. § 437c(q).)

 

Improper Reply Separate Statement

 

On July 21, 2022, Plaintiff filed a response to Defendant’s opposing separate statement. The Court does not consider this document. (See e.g. Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (“The deficiencies carried over to the reply papers, which included a 297–page reply separate statement. There is no provision in the statute for this.”); San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313 (“While the code provides for reply papers, it makes no allowance for . . . filing a supplemental separate statement. (§ 437c, subd. (b).) This is consistent with the requirement supporting papers and the separate statement be served with the original motion. (§ 437c, subd. (a).).”).) 

 

Request for Judicial Notice

 

Plaintiff requests the Court take judicial notice of the CC&Rs and amendments there to as well as the complaint in this action. The Court GRANTS judicial notice of the recorded documents and their legal effect. (Code Civ. Proc. § 452(c).) Plaintiff’s request for judicial notice of the operative complaint in this action is unnecessary and the Court does not take judicial notice of the truth of the matters stated in the complaint. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 (“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.”).) The Court necessarily reviews the allegations in the complaint in ruling on a motion for summary adjudication.

 

Motion for Summary Adjudication

 

Standard

 

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.) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿(Hinesley¿v.¿Oakshade¿Town Center¿(2005) 135 Cal.App.4th 289, 294.)¿Thus, summary judgment or summary adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.¿(Code Civ. Proc. § 437c(c);¿Villa v.¿McFarren¿(1995) 35 Cal.App.4th 733, 741.) ¿ 

¿ 

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.) 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 Civ. Proc. § 437c(f)(1).)

 

Plaintiff Failed to Meet Her Initial Burden

 

“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.” (Code Civ. Proc. § 437c(p)(1).) As argued by Defendant, Plaintiff’s motion does not cite any relevant legal authority supporting her declaratory relief claim or any of the issues presented for summary adjudication. (Mot. at 7:15-9:7.) Plaintiff merely contends, without citing legal authority, that “[t]he 88-Amendment is not enforceable and is invalid on its face and void, void ab initio, and minimally voidable,” (Mot. at 8:20-21), because the amendment is inconsistent and violates the CC&Rs. (Mot. at 9:1-7.)

 

“A point totally unsupported by argument and authority may be rejected by the reviewing court without discussion.” (See generally Fenton v. City of Delano (1984) 162 Cal.App.3d 400, 410. See also People v. Ham (1970) 7 Cal.App.3d 768, 783 (“Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.”) (disapproved on other grounds in People v. Compton (1971) 6 Cal.3d 55); Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684 (“The reviewing court is not required to develop the parties’ arguments or search the record for supporting evidence and may instead treat arguments that are not developed or supported by adequate citations to the record as waived.”).) Plaintiff had the duty to support her claims with “a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. R. Ct., rule 3.1113(b).) Plaintiff’s failure to do so requires a finding that she failed to meet her burden as the moving party.

 

Plaintiff’s attempt to correct this omission in reply is improper. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 (“Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.”).)

 

Moreover, none of the authority cited by Plaintiff for the first time in reply stands for the proposition that the 1988 Amendment signed by Plaintiff is void or voidable. Plaintiff cites authority regarding contract interpretation, which is immaterial to Plaintiff’s declaratory relief cause of action seeking to void the 1988 Amendment. Applying the rules of contract interpretation would support enforcement of the subsequent amendment signed by Plaintiff as it replaced the prior terms of the CC&Rs. (See generally Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 240 (“courts have described recorded declarations as contracts.”); Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264 (“The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.”).)

 

Plaintiff cites Fourth La Costa Condominium Owners Assn. v. Seith (2008) 159 Cal.App.4th 563 and Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670 in her reply without analysis. (Reply at 3:13-21.) Neither of these cases discussed whether an amendment to CC&Rs is void or voidable on the grounds asserted by Plaintiff. The court in Laguna Royale held “that the restriction on transfer contained in paragraph 7 of the subassignment and occupancy agreement (hereafter simply paragraph 7), thus limited, does not violate defendants' constitutional rights of association and is not invalid as an unreasonable restraint on alienation [and . . .] conclude[d] that in view of the present provisions of Association's bylaws, its refusal to consent to the transfers to defendants was unreasonable as a matter of law.” (Laguna Royale, supra, 119 Cal.App.3d at 680.)

 

The court in Fourth La Costa addressed petitions to reduce the percentage of votes required to amend CC&Rs: “Seith challenges the order on the grounds the underlying vote was invalid because it was by mail ballot, the ballot was not secret, the Owners Association made an insufficient effort to permit all owners to vote, and there was insufficient evidence of lender acquiescence; the court exceeded its statutory authority and implied an improper standard; certain provisions of the amendment are unreasonable; and Civil Code section 1356 is unconstitutional as it impairs the obligation of contracts.” (Fourth La Costa, supra, 159 Cal.App.4th at 568.) The court rejected each of Seith’s arguments and the specific provisions challenged related to parking spaces, display of sale and lease signs, and the requirement that leases be in writing and state the tenant is bound by the provisions of the CC&Rs.

 

Plaintiff cites a federal Ninth Circuit case, Clay Tower Apartments v. Kemp (9th Cir. 1992) 978 F.2d 478, 481, for the proposition that “[t]he CC&Rs must operate equally and uniformly.” (Reply at 4:5-7.) The federal case is not binding on this Court, does not involve CC&Rs, and is immaterial to Plaintiff’s action. In Clay Tower, “[a]n Oregon owner of low-income housing brought a declaratory judgment action against the United States Department of Housing & Urban Development [HUD] challenging HUD's determination that the expiration of a ten-year real property tax abatement on a ‘Section 8’ housing project was not a basis for a special rent adjustment under 42 U.S.C. § 1437f(c)(2)(B) (1988).” (Clay Tower, supra, 978 F.2d 478.) 

 

Finally, Plaintiff cites Cebular v. Cooper Arms Homeowners Assn. (2006) 142 Cal.App.4th 106, without analysis. (Reply at 4:8-5:17.) Notably, the court in Cebular rejected every contention raised by the condominium owner, finding “[n]either the act nor the California Code of Regulations requires that equal assessments be imposed in every case.” (Id. at 120.) Like the owner in Cebular, Plaintiff suggests the 1988 Amendment is against public policy, (Reply at 4:9-10), but Plaintiff “has failed to demonstrate that enforcement of the declaration in this case violates any fundamental policy that inures to the public at large.” (Cebular, supra, 142 Cal.App.4th at 123.)

 

Plaintiff’s First Cause of Action Appears Barred by the Statute of Limitations

 

“[T]he statute of limitations governing a request for declaratory relief is the one applicable to an ordinary legal or equitable action based on the same claim.” (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1155.) Plaintiff’s declaratory relief action seeks to avoid a written instrument. Accordingly, it is subject to a four-year statute of limitations. (Zakaessian v. Zakaessian (1945) 70 Cal.App.2d 721, 725 (“Ordinarily a suit to set aside and cancel a void instrument is governed by Sec. 343 of the Code of Civil Procedure.”); Code Civ. Proc. § 343 (“An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.”); Walters v. Boosinger (2016) 2 Cal.App.5th 421, 433 (“statutes of limitations apply whether the document under challenge is asserted to be ‘void’ or ‘voidable.’”).)

 

The grant deed transferring ownership to Plaintiff was recorded on March 8, 1989. (Xie Decl. ¶ 4, Ex. A.) Plaintiff appears to have signed the recorded 1988 Amendment. (Sadeghpour Decl. Ex. 3.) Accordingly, Plaintiff’s stated basis for the declaratory relief cause of action that the 1988 Amendment is inconsistent with, or violates, the CC&Rs would be readily apparent on the face of the document Plaintiff signed in 1988. Plaintiff’s claim appears time barred, precluding summary adjudication. (See e.g. Schuman v. Ignatin (2010) 191 Cal.App.4th 255, 265 (“In the present case, the Amendment extending the CC & Rs was recorded in December 1998. Ignatin first sought to challenge the validity of the Amendment in August 2008. . . . Ignatin’s challenge is barred by the statute of limitations.”).) Plaintiff’s invocation of the continuing violation doctrine does not apply to the declaratory relief cause of action seeking to declare the document void, voidable, or otherwise invalid. The conduct causing the alleged invalidity was completed in 1988.

 

Accordingly, Plaintiff is not entitled to summary adjudication in her favor on the first cause of action or any of the issues presented.