Judge: Yolanda Orozco, Case: 21STCV37859, Date: 2023-04-21 Tentative Ruling
Case Number: 21STCV37859 Hearing Date: April 21, 2023 Dept: 31
PROCEEDINGS:¿ MOTION
FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION
¿
MOVING PARTY:¿ Defendants Ridgeley Vista Chateau Homeowners Association
(“Association”); Alexandra Izdebksi (“Izdebksi”); and Laura Hoffman (“Hoffman”)
RESP.¿ PARTY:¿ Plaintiff
Katherine Iris Duran
MOTION
FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION
TENTATIVE RULING
Defendants’
Motion for Summary Judgment is DENIED.
LEGAL STANDARD
The purpose of a motion for summary judgment or summary
adjudication “is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.”¿ (Aguilar v. Atl. Richfield Co.
(2001) 25 Cal. 4th 826, 843.) “Code of Civil Procedure section 437c,
subdivision (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.)¿¿¿¿¿
¿
“On a motion for summary judgment, the initial burden is
always on the moving party to make a prima facie showing that there are no triable issues of material
fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th
1510, 1519.) The moving party is entitled to summary judgment if they can show
that there is no triable issue of material fact or if they have a complete
defense thereto. (Aguilar, supra, 25 Cal. 4th at 843.)¿ Summary
adjudication may be granted as to one or more causes of action within an
action, or one or more claims for damages. (Cal. Code of Civ. Proc.
§437c(f).)¿¿¿¿¿¿
¿
A defendant moving for summary judgment bears two burdens:
(1) the burden of production – presenting admissible evidence, through material
facts, sufficient to satisfy a directed verdict standard; and (2) the burden of
persuasion – the material facts presented must persuade the court that the
plaintiff cannot establish one or more elements of a cause of action, or a
complete defense vitiates the cause of action. (Code Civ. Proc., § 437c(p)(2);¿Aguilar,¿supra,
25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that
the claim “cannot be established” because of the lack of evidence on some essential
element of the claim.¿¿(Union Bank v. Superior Court (1995) 31
Cal.App.4th 574, 590.)¿¿Once the defendant meets this 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 defense thereto.”¿(Id.)¿¿¿¿¿
¿
“On ruling on a motion for summary judgment, the court is to
‘liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal
v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.)¿¿¿
¿
On a summary judgment motion, the court must therefore
consider what inferences favoring the opposing party a factfinder could
reasonably draw from the evidence. While viewing the evidence in this manner,
the court must bear in mind that its primary function is to identify issues
rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999)
75 Cal.App.4th¿832, 839.)¿¿
¿
Defeating summary judgment requires only a single disputed
material fact. (See CCP § 437c(c) [a motion for summary judgment “shall be
granted if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law.”] [emphasis added].) Thus, any disputed material fact means the
court must deny the motion – the court has no discretion to grant summary
judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana
v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿
REQUEST FOR
JUDICIAL NOTICE
The Court may
take judicial notice of regulations and legislative enactments issued by or
under the authority of the United States or any public entity in the United
States and facts and propositions that are not reasonably subject to dispute
and are capable of immediate and accurate determination by resort to sources of
reasonably indisputable accuracy.” (Evid. Code § 452, subds. (b) and
(h).) However, the court may only judicially notice the existence of the
record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6
Cal.App.4th 1548, 1565.)
Defendants
request Judicial Notice of the following:
1)
Ridgeley
Vista Chateau Homeowners Association’s First Amended and Restated Declaration
of Covenants, Conditions and Restrictions, a true and correct copy of which is
marked and attached hereto as Exhibit 1.
Defendants
request for judicial notice is GRANTED. (See Performance
Plastering v. Richmond American Homes (2007) 153 Cal.App.4th 659,
666, fn. 2 [Courts may take judicial notice of written instruments that are
referenced in a complaint and not subject to factual dispute].)
EVIDENTIARY
OBJECTIONS
A.
Plaintiff’s
Evidentiary Objections to the Declaration of Alexandra Izdebski filed in
Support to this Instant Motion.
Objection No. 1 OVERRULED as the email is admissible
against the Association as a party admission. (See Evid. Code, § 1222.)
B.
Plaintiff’s
Evidentiary Objections to Plaintiff’s Deposition Testimony Offered in
Support of this Instant Motion.
Objection No. 1 is SUSTAINED.
C.
Plaintiff’s
Evidentiary Objections to the Declaration of Samantha Johnson, Esq.
Offered in Support of this Instant Motion.
Objection No. 1 is SUSTAINED.
Objections Nos. 1 to 4 are OVERRULED as the emails are
admissible against Association as a party admission. (See Evid. Code, § 1222.)
D.
Defendants Evidentiary
Objections to the Declaration of Plaintiff Katherine Iris Duran filed in
Opposition to this Instant Motion.
Objection No. 4 is OVERRULED.
Objection No. 9 is SUSTAINED IN PART as to paragraph 11,
page 13, lines 1-2.
All
other objections to the Declaration of Plaintiff Katherine Iris Duran are
immaterial and the Court declines to rule upon them. All objections not ruled upon are preserved for appeal.
(Code Civ. Proc. § 437c(q).)
E.
Defendants Evidentiary
Objections to the Declaration of Jason M. Stone filed in Opposition to
this Instant Motion.
Objection
No. 5 is SUSTAINED.
All
other objections to the Declaration of Jason M. Stone are immaterial and the
Court declines to rule upon them. All
objections not ruled upon are preserved for appeal. (Code Civ. Proc. §
437c(q).)
F.
Defendants Evidentiary
Objections to the Declaration of Mathew Chen and Plaintiff’s Exhibit
5 filed in Opposition to this Instant Motion.
Objections
Nos. 1, 2, and 8 are OVERRULED.
All
other objections to the Declaration of Mathew Chen and Plaintiff’s Exhibit 5
are immaterial and the Court declines to rule upon them. All objections not ruled upon are preserved for appeal.
(Code Civ. Proc. § 437c(q).)
DISCUSSION
Relevant
Facts
1.
The Parties
Ridgeley Vista Chateau Homeowners Association
(“Association”) is a common interest development consisting of nine condominium
residences located in Los Angeles, CA. (UMF 1, RJN Ex. 1.) The Association’s
governing documents include its First Amended and Restated Declaration of
Covenants, Conditions, and Restrictions (“CC&Rs”), which were recorded on
July 29, 2008. (UMF 1, RJN Ex. 1.)
Plaintiff is the owner of Unit
102 since about 2019. (FAC ¶ 3.) By virtue of her ownership, Plaintiff is a
member of the association and bound by the association’s Governing Documents.
(FAC ¶ 9.) “Plaintiff has been on the Board of Directors for the
Association between January of 2020 and June of 2020 as well as from January of
2021 to present.” (UMF 5.)
Defendant Alexandra Izdebski (“Izdebski”) has been the owner
of Unit 202 since about February 2016. (FAC ¶ 4, Izdebski Decl. ¶ 2.) Izdebski
has been on the Board of Directors for the Association since either late 2016
or early 2017. (UMF 3.) Defendant Laura Hoffman (“Hoffman”) has owned Unit 203
since April 2018. (FAC ¶ 5, Hoffman Decl. ¶ 2.) Hoffman has been on the Board
of Directors for the Association between August 2019 and January 2020, as well
as from June 2020 to the present. (UMF 4.)
2.
The Flooring in Izdebski’s Unit
It is undisputed that the wood
flooring in Izdebski’s unit has never been changed since she took ownership of
the unit. (UMF 7.)
Article 4, section 4.7 of the CC&Rs requires a unit Owner
to notify the Board and obtain approval from the Board if the owner does
anything to increase the noise level, sounds, or vibrations that can be heard
or felt outside of the unit. (FAC ¶ 14.)
Article 4, section 4.7 states:
“In the event an Owner shall do
anything with respect to his Unit that might have the effect of increasing the
level of noise, sounds or vibrations that can be heard or felt outside of his
Unit during normal use and occupancy, he shall be required to obtain prior
written approval from the Board and to take all such measures at his expense to
guarantee that the final product achieves an FIIC (Field Impact Insulation
Class) sound rating of 52. At the conclusion of the work, the Owner will
produce, at his expense, a sound test from an acoustical engineer, licensed in
Acoustical Testing by the appropriate local authorities, to prove that this
rating has been met. If this FIIC 52 standard is not met, such flooring or
other tile shall promptly be removed by the Owner at his expense.”
(FAC ¶ 14; RJN Ex. 1)
Article 4, section 4.8 of the CC&Rs also imposes certain
carpeting requirements for owners of units above the first floor:
“Carpet and foam padding, with a
minimum density of five (5) lbs. or jute padding with a minimum weight of fifty
(50) ounces per yard, shall be required in all areas of the Units above the
first-floor level of the Building, with the exception of the entryway, kitchen
and bathroom areas, so as to achieve as much acoustical privacy as possible.
Notwithstanding the foregoing, installation of hardwood flooring, marble, ceramic
tile or other hard floor coverings by Owners in Units above the first-floor
level may be permitted but only with the written approval of the Board and only
upon compliance with Section 4.7 of this Declaration. Even when such an
exemption shall be granted, area rugs on top of padding with a minimum density
of five (5) lbs. or jute padding with a minimum weight of fifty (50) ounces per
yard shall cover all portions where one can walk, including passageways between
rooms, except for a border not exceeding fifteen (15) inches along any unbroken
strip of wall. The entryway areas should be as small as possible, and an
approved floating floor should be used under the hard surface. No carpeting or
padding in a Unit may be removed unless replaced with at least an equivalent
weight carpet and padding.”
(FAC ¶ 15, RJN Ex. 1.)
Plaintiff maintains that Defendants Izdebski and Hoffman, as
the individual owners of Units 202 and 203 respectively, and as Board members,
are in violation of the CC&Rs regarding the flooring and carpeting
requirements pursuant sections 4.7 and 4.8, as well as other CC&Rs
violations.
3.
Plaintiff’s Complaint to the Board and the Board’s Response
Prior to January 18, 2021, Plaintiff had never complained
about the noise emanating from Izdebski’s unit. (UMF 10.) On January 18, 2021, Plaintiff
sent an email to the Association and the Association’s property manager,
Stephanie Tuttle (“Tuttle”) regarding noise complaints in the second-floor
units above her. (UMF 10.)
Tuttle responded to Plaintiff’s complaint and made the
following representations:
“All 2nd floor Units have met [the
padding and rug specifications] as required when any remodeling was done to
individual units. However, there is no guarantee that noise can’t penetrate
through the specified padding and/or rugs.”
(Hoffman Decl. Ex. 1, Izdebski Decl. Ex. 5.) Tuttle
commented that all other noise complaints reiterated by Plaintiff related to
the owner’s activity which the Association had no control over unless the noise
is excessive and after “normal” hours. If so, Plaintiff was to “report
complaint to Management with date/time so the Board can handle accordingly.”
(Hoffman Ex. 2, Izdebski Decl. Ex. 5.)
Plaintiff responded to Tuttle and requested evidence that
all second-floor units complied with the carpeting requirements mandated by the
CC&Rs. Plaintiff also requested pictures and the manufacturer’s
information. (Hoffman Ex. 3.) Per Article 4, Section 4.7, of the CC&Rs,
Plaintiff requested the acoustical sound test report. (Id.) Tuttle
responded:
“The current owner did not change the
flooring, and we do not know whether an acoustical report was already submitted
to the HOA board/prior management by the former owner of the unit.”
(Hoffman Ex. 4.) In her email, Tuttle explained why the
burden was on Plaintiff to prove that violations of the CC&R had occurred:
“The Statute of Limitation for
violation of a CC&R provision, architectural guideline or rule is 5
years from the time the board discovers the violation or, through the
exercise of reasonable diligence, should have discovered the violation. (Code
Civ. Proc. § 336(b); Pacific Hills HOA v. Prun.) Boards must timely
enforce violations of the association’s governing document, otherwise they can
lose the right to bring an action to enforce a particular violation.
An additional note, the board should
consider the precedent being set by allowing owners to accuse other owners of
CC&R violations without evidence. . ..”
(Hoffman Decl. Ex. 4)
Tuttle then provided the Board with three options:
“Option 1: The board can vote on
whether to pursue the soundproofing issue or not (2 votes, 1 for each unit. The
board members involved could recuse themselves form the vote, and the other 2
board members could vote as to whether to pursue the alleged flooring violation
in each case. If the 2 board members have tied votes, they can work to resolve
the matter between themselves or utilize alternative dispute
resolution/mediation/legal counsel to come to an agreement. If the board
decides not to proceed, then the matter will not proceed any further.
“Option 2: The owner involved can opt
for an acoustical engineer to check the soundproofing in their unit, however
the cost for the acoustical test is split between the accuser and the owner of
the unit and the amount is held in escrow until the completion of the
soundproofing test. If the accuse is correct that the unit does not meet the
requirements, the owner of the unit pays in full, if the accuser is incorrect,
then they pay for the testing in full.
Option 3: The owners of the units
volunteer to pay for their own soundproofing test out of pocket and any
subsequent repairs that are needed.”
(Hoffman Decl. Ex. 4.)
Defendants provide no facts or evidence as to why none of
the above three options were executed. The evidence shows that on March 05,
2021, Hoffmann sent Plaintiff mediation bids she had received from Tuttle.
(Hoffman Decl. ¶ 13, Ex. 5; Izdebski Decl. ¶ 18, Ex. 7.) Plaintiff sent a
formal written IDRC request on May 05, 2021. (Hoffman Decl. ¶ 14.) The Board,
through its attorney, accepted the request on June 07, 2021. (Hoffman Decl. ¶
16, Ex. 7.) The Association proposed Defendant Hoffman facilitate, which
Plaintiff found unacceptable due to Plaintiff and Hoffman’s history and
tumultuous relationship. (FAC ¶ 25.)
Moreover, Defendants Izdebski and Hoffman assert that there
are only three board members: Plaintiff and Defendants Izdebski, and Hoffman.
(Hoffman Decl. ¶ 5, Izdebski Decl. ¶ 8.) Presumably, this is why Hoffman’s
participation in the IDRC was required. However, Tuttle references that there
are two board members, not involved in the dispute, who can vote on Option 1.
(Hoffman Decl. Ex. 4.) Defendants do not explain this discrepancy.
Defendants maintain that Hoffman’s participation in the IDRC
was mandated under the CC&Rs. (RJN Ex. 1.) The Court notes Article 9,
section 9.13 allows an owner to offer a Request for Resolution to an opposing
party. (RJN Ex. 1 [Art. 9, § 9.13].) Since Plaintiff’s allegation implicated
the Board of Directors, subdivision (c)(iii) of section 9.13 states:
“The Board of Directors shall designate
a member of the Board to meet and confer.”
(RJN Ex. 1 [Art. 9, § 9.13, subd. (c)(iii).) The Court finds
nothing in the CC&Rs mandating that Defendant Hoffman participate in the
IDRC. All that section 9.13 requires is that a member of the Board be
designated, not specifically Defendant Hoffman.
It is undisputed that no IDRC took place and that the
parties’ inability to resolve the conflict regarding the noise level emanating
from Izdebski’s and Hoffman’s second-floor units led Plaintiff to file suit.
Defendants’ Motion for Summary Judgment
1. First Cause of Action – Breach of Governing Documents
Courts
have construed CC&R’s as forming a contract between the Association and its
condominium owners. (See Frances T. v. Village Green Owners Assn. (1986)
42 Cal.3d 490, 512 [CC&Rs as contract between homeowner and homeowners
association with respect to installation of common area lighting]; Barrett
v. Dawson (1998) 61 Cal.App.4th 1048, 1054 [CC&Rs as contract between
neighboring property owners prohibiting the use of a residential property for
business activities]; Franklin v. Marie Antoinette Condominium Owners Assn.
(1993) 19 Cal.App.4th 824, 828, 833-834 [CC&Rs as a contract between
homeowner and homeowners association with respect to homeowners association's
obligation to maintain and repair common area plumbing].
“To state a cause of action for breach of contract, a party
must plead the existence of a contract, his or her performance of the contract
or excuse for nonperformance, the defendant’s breach and resulting damage.
[Citation.] If the action is based on alleged breach of written contract, the
terms must be set out verbatim in the body of the complaint or a copy of the
written agreement must be attached and incorporated by reference.”¿ (Harris
v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 308 [citations
omitted].) Alternatively, “a plaintiff may plead the legal effect of the
contract rather than its precise language.”¿
Defendants do not
dispute that a contract exists between parties governed by the Association’s
CC&Rs. Defendants assert that Plaintiff’s breach of contract claim fails
because she cannot establish breach or damages.
a.
No Evidence of
Breach
Defendants
maintain that because the Association responded to Plaintiff’s complaint about Izdebski’s
flooring and her IDRC requests, the Defendants have not breached the CC&Rs.
It remains disputed whether the Association’s response was appropriate and
whether it investigated or confirmed that Defendant Izdebski’s unit complied
with the carpeting requirements articulated in Article 4, Section
4.8 of the CC&Rs.
Izdebski states that when she purchased Unit 202, the unit
had wood flooring throughout. (Izdebski Decl. ¶ 3.) Exhibit 1 of the Izdebski
Declaration is the listing photos of Unit 202 that Izdebski saw prior to her
purchase of Unit 202. (Izdebski Decl. ¶ 3.) The Court confirms that the photos
show wood flooring throughout the unit. However, carpeting and foam padding
“with a minimum density of five (5) lbs or jute padding with a minimum weight
of fifty (5) ounces per yard”, as required by Article 4, section 4.8 of the
CC&Rs, does not appear to be all the requisite unit areas. (Ex. 1, RJN Ex.
1 [Art. 4, § 4.8].) Two surface rugs on the listing appear to cover certain
areas of the unit, the area symmetrical to the bed and the living room area.
(Izdebski Decl. Ex. 1.) Section 4.8 of the CC&Rs states “with the exception
of the entryway, kitchen, and bathroom areas” carpet and foam padding are
required in all areas. (Ex. 1, RJN Ex. 1 [Art. 4, § 4.8].) Izdebski’s listing
photos do not show that all requite unit areas have carpeting and foam padding,
and the dining area has no carpeting or surface rug. (Izdebski Ex. 1.)
Izdebski asserts that “[s]ince purchasing Unit 202, I have
always had carpeting on top of the flooring in all areas required by the
Association’s CC&Rs. Photos of my unit that show where I have placed this
carpeting are attached hereto as Exhibit 12.” (Izdebski Decl. ¶ 26, Ex. 12.)
The Court notes that two photos show carpeting in the bedroom area and living
room area. (Id.) The Court is unable to ascertain if the carpeting is
present in all requite unit areas, such as the dining area. (Ex. 1, RJN Ex. 1
[Art. 4, § 4.8].) Izdebski submits a copy of her “paddings specifications,
including density and sound rating” to show that it meets the CC&Rs
requirements. (Izdebski Decl. ¶ 13.) Izdebski also fails to state when the
photos were taken or when she added the carpeting to her unit. Therefore, the
authenticity of the photos remains in question.
Nevertheless, Defendant Hoffman asserts that she has
personally gone inside Izdebski’s unit and has observed “that she has carpeting
on top of the flooring in all areas required by the Association’s CC&Rs.”
(Hoffman Decl. ¶ 18.) Hoffman fails to state when she made this observation.
As to Hoffman’s unit, Tuttle represent to the Board and
Plaintiff that Unit 203 did change flooring and the owner “documented to the
board and management that the sound rating requirements in the CC&R were
being followed.” (Hoffman Ex. 4.) Defendants failed to provide evidence of
documents Hoffman submitted to the Board to show compliance.
Moreover, the Defendants fail to explain why Hoffman’s
participation in the IDRC is required. “Generally, courts will uphold decisions
made by the governing board of an owners association so long as they represent
good faith efforts to further the purposes of the common interest development,
are consistent with the development's governing documents, and comply with
public policy.” (Nahrstedt v. Lakeside Village Condominium
Assn. (1994) 8 Cal.4th 361, 374.)
Defendants offer no facts or reasons why the Board believes
Hoffman was best suited to represent the interest of the board in the IDRC
despite Plaintiff’s objections. (Stone Decl. Ex. 3.) Therefore, a triable issue
of fact exists as to whether the Associated attempted to confer in good faith
by designating Hoffman to represent the Board in the IDR, despite Plaintiff’s
personal objections to Hoffman.
Moreover, a triable issue of fact exists as to how many
Board members were in the association such that Hoffman’s participation in the
IDRC was required. Hoffmans and Izdebski represented that there were only three
board members. (Hoffman Decl. ¶ 5; Izdebski Decl. ¶ 8.) However, Tuttle’s email
to the Board references the exitance of two other Board members. (See Hoffman
Decl. Ex. 4.) Moreover, Defendants fail to explain why none of the three
options outlined in Tuttle’s February 19, 2021 email were not adopted by the
Board. (Id.) Without this information, the Court cannot ascertain if the
Board and the individual members acted in good faith in upholding the
Association’s CC&Rs.
For this reason, the Court finds that Defendants have failed
to show that no triable issues of fact exist as to breach of the CC&Rs.
Moreover, Plaintiff has produced sufficient evidence to show
that triable issues of fact exist precluding summary adjudication. Defendant
Izdebski rents out her unit and it is unclear if her tenants comply with the
carpeting requirement set out in sections 4.7 and 4.8 of the CC&Rs. (AUMF
13.) Plaintiff also provides evidence that the hardwood floors in Defendants
Izdebski’s and Hoffman’s unit were never “grandfathered” as exceptions to sections
4.7 and 4.8 as required by the CC&Rs under section 5.8. (AUMF 13.) The
Board did not provide evidence that when the flooring in Units 202 and 203 were
changed, the units were in compliance with sections 4.7 and 4.8 as required by
the CC&Rs. (Chen Decl. Ex. 5 [Izdebski Depo. as PMQ at 23:19-25].)
In their reply, Defendants assert that Plaintiff
mischaracterizes the Grandfather Clause in section 5.8 of the CC&Rs because
section 5.9 does not place a burden on future unit owners to “correct”
violations that they did not cause.
Section 5.8 states:
“All conditions within any Unit []
which existed prior to the recording of this declaration, which would violate
the provisions of this Declaration, are grandfathered and excepted from
compliance wherewith, but only if, on or before the sixtieth (60th) day aft
recordation of this Declaration, the Owner has delivered a signed writing to
the Association in which he (i) identifies the specific preexisting condition
in his Unit which violates this Declaration, (ii) agrees to indemnify, defend,
and hold harmless the Association and its representatives from any liability
arising from such preexisting condition, (iii) agrees that upon the sale or change of occupancy of
his Unit the condition shall either be abated or removed at his cost, and (iv)
agrees that if there is a written complaint from another owner about the
condition and the Board determines in its subjective opinion that the condition
unduly interferes with the quiet enjoyment of another Owner, the condition will
be removed or abated forthwith at the offending Owner’s expanse.
Notwithstanding the foregoing, nothing contained in this Section shall be
deemed or construed to be
approval or acceptance by the Association of any condition (preexisting or
otherwise) which constitutes, in the Board’s opinion, a health or safety
threat to the Project or any other legal occupant of the Project, or which is a violation of any
governmental law, rule, or regulation or of any contract to which the
Association is a party.”
(RJN Ex. 1 [Art. 5, § 5.8].)
First, it is undisputed that Hoffman changed the flooring of
her unit and per Tuttle, Hoffman “documented to the board and management that
the sound rating requirements in the CCYR were being followed.” (Hoffman Decl.
¶ 4.) As previously stated, Defendants failed to present evidence showing
Hoffman complied with the CC&Rs when she changed the flooring of her unit.
Secondly, if the previous owner of Unit 202 failed to comply
with the CC&Rs when the flooring was changed, upon Plaintiff’s written
complaint, the Board was required to make a determination as to whether “the
condition unduly interferes the quiet enjoyment of another Owner[.].” The Board
never issued an opinion as to whether Izdebski’s unit complied with the
CC&Rs because it put the burden on Plaintiff to prove the existence of a
violation before the Board would investigate the violation. (Hoffman Decl. Ex.
4.) Since Izdebski’s unit is rented out, it remains disputed whether the
current tenant has complied with the CC&Rs, including the flooring requirements
of sections 4.7 and 4.8. Moreover, in their moving papers, the Association
never produced evidence that Units 202 and 203 are in compliance with the
CC&Rs such that no triable issues of fact exist.
Therefore,
triable issues of material fact exist as to the question of breach.
b. No
Evidence of Damages
Defendants maintain that Plaintiff cannot
provide evidence of damages. As evidence, Plaintiff submits a declaration
asserting that she has been disturbed by excessive noise disturbances,
including loud stomping, footsteps, vacuuming, loud music, moving heavy items,
and shouting coming from Izdebski’s unit. (Duran Decl. ¶ 5.) Plaintiff asserts
that the disturbances are exacerbated by Izdebski’s short-term renters. (Id.
¶ 6.) “The current tenant, Rhyan Rudd, “has hosted several
parties and invited multiple people to Unit 203 during [Plaintiff’s] tenancy,
as recently as March 24, 2023.” (Id.) Plaintiff has been unable to enjoy
peace and quiet in her home. (Id.)
“As a result of Defendants’ actions
and breaches of the CC&Rs, I have suffered damages. I have suffered
emotional distress, migraines, loss of sleep, unwarranted annoyance and
harassment, interference with my work and daily life, excessive vibrations
which rattle the walls and glass in my unit, and loss of quiet enjoyment of my
unit. Said issues are a result of excessive noise disturbances emanating from
Izdebski’s unit at unreasonable hours between 10:00 p.m. and 9:00 a.m., as well
as throughout the day.”
(Id. ¶ 12.)
The Court finds that Plaintiff’s
declaration is sufficient evidence to show a triable issue of fact exists as to
Plaintiff’s damages. In their reply, for the first time, Defendants assert that
Plaintiff’s Breach of Contract claim limits liability unless the “economic
loss, injury, and/or damage to persons or property” is caused by “gross
negligence or willful misconduct of the Association, or any of its officers,
directors, committee members, Manager or his staff, or employees.” (RJN Ex. 1
[Art. 10, § 10.12].)
The Court will not opine as to whether
section 10.12 of the CC&Rs bars Plaintiff’s recovery of damages on a breach
of contract claim because Defendants raised this argument for the first time on
reply and deprived Plaintiff of the opportunity to address the issue in its
opposing papers. (See 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.”].)
Secondly, Article 9, section 9.1, titled “Enforcement
of Governing Documents” states, in the pertinent part:
“Enforcement of Governing Documents shall
be by any proceeding at law or in equity against any Person violating or
attempting to violate said documents either to restrain violation or to recover
damages.”
(RJN Ex. 1.) Therefore, section 9.1
permits Plaintiff to recover damages seeking to enforce the Governing
Documents.
Based on the foregoing, the Defendants’
request for summary adjudication as to the first cause of action is DENIED.
2.
Second Cause of Action – Breach of Implied Covenant of Good Faith
and Fair Dealing
Every contract contains an implied
covenant of good faith and fair dealing providing that no party to the contract
will do anything that would deprive another party of the benefits of the
contract.¿The implied covenant protects the reasonable expectations of the
contracting parties based on their mutual promises.” (Digerati
Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873,
885; see also Guz v. Bechtel Nat. Inc.(2000) 24 Cal.4th 317, 349–350.)
Defendants maintain that
they adhered to requirements and duties set forth in the CC&Rs with respect
to alternative dispute resolution and treated Plaintiff’s complaints
necessitating the same as they would any other homeowner. However, triable
issues of fact exist as to whether Izdebski’s and Hoffman’s units complied with
the CC&Rs, whether the Board took appropriate action to address Plaintiff’s
complaints, and if the Board acted in good faith in designating Hoffman to
represent the Board in the IDRC.
Plaintiff has also submitted
evidence that Izdebski failed to comply with sections 6.1 and 6.2 of the
CC&Rs by allowing short-term rentals (rentals less than six months). (Stone
Decl. Ex. 5 [28”15-31:14].) Therefore, it is uncertain if Izdebski’s tenants
are complying with the CC&Rs. Moreover, Izdebsdki admits she never provided
her tenants with a copy of the CC&Rs. (Id; AUMF 14.)
Therefore, summary
adjudication as to the second cause of action is DENIED since triable issues of
fact exist.
3.
Third Cause of Action – Breach of Fiduciary Duty
The elements of a cause of action for breach of fiduciary
duty are the existence of a fiduciary relationship, its breach, and damage
proximately caused by that breach.” (Meister v. Mensinger (2014) 230
Cal.App.4th 381, 395.) A fiduciary relationship is “any relation existing
between parties to a transaction wherein one of the parties is duty bound to
act with the utmost good faith for the benefit of the other party.” (Cleveland
v. Johnson (2012) 209 Cal.App.4th 1315, 1338.) “Such a relation ordinarily
arises where a confidence is reposed by one person in the integrity of
another.” (Id.) “While breach of fiduciary duty is a question of fact,
the existence of legal duty in the first instance and its scope are questions
of law.” (Kirschner Bros. Oil, Inc. v. Natomas Co. (1986) 185 Cal.App.3d
784, 790 [internal citations omitted].) “Directors of nonprofit corporations such as the
Association are fiduciaries who are required to exercise their powers in
accordance with the duties imposed by the Corporations Code. [Citation.]
This fiduciary relationship is governed by the statutory standard that requires
directors to exercise due
care and undivided loyalty for the interests of the corporation.
[Citation.]” (Frances T. v. Village Green Owners Assn. (1986) 42
Cal.3d 490, 513.)
Defendants fail
to explain why the Association did not maintain documents showing that the
flooring in units 202 and 203 complied with sections 4.7 and 4.8 of the
CC&Rs. Moreover, Defendants fail to show that Izdebski’s and Hoffman’s units
are in compliance with the CC&Rs or that their units’ noncompliance was
“grandfathered” as required by section 5.8 of the CC&Rs or that the Board
made a determination that the condition did not unduly interfere with the quiet
enjoyment of another Owner such that condition did not need to be moved or
abated. (RJN Ex. 1 [Art. 5, § 5.8].) Moreover, the Association also fails to
explain why it insisted that Hoffman represent the Board in the IDRC or the
Board’s reasoning for this decision when other Board members not involved in
the dispute appeared to have been available. (Hoffman Decl. Ex. 4.)
Consequently, Defendants have not met their burden of showing that no triable
issue of fact exists regarding the Board compliance to enforce the CC&Rs
equally and with due care.
Defendants cite Lamden v. La Jolla Shores Clubdominium Homeowners Assn.
(1999) 21 Cal.4th 249, for the proposition that Judicial Deference immunizes
the Associations handling of Plaintiff’s complaint. “[T]he judicial deference
rule is an affirmative defense. [Citation.] Thus, the 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 fail to note that Lamden applies
judicial deference to the ordinary maintenance decision made by the
Association, not complaints about non-compliance with CC&Rs:
“We hold that, 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.”
(Lamden, supra, 21 Cal.4th
at 265.) Cases are not authority for propositions that are not considered. (See Kim v. Reins International California,
Inc. (2020) 9 Cal.5th 73, 85, fn. 4.)
Therefore, the Defendants fail to show that Judicial
Deference applies to the Board’s decision.
Summary adjudication as to the third cause of action
is DENIED.
Defendants’ Motion for Summary Judgment is DENIED.
CONCLUSION
Defendants’
Motion for Summary Judgment is DENIED.
Defendant to give notice.