Filed 8/18/26 Kotowski v. Salehi CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
STEVE KOTOWSKI et al., D085655
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2021-
00024244-CU-BC-NC)
FARZAD SALEHI et al.,
Defendants and Respondents;
v.
IVY HILL AT SCRIPPS RANCH
VILLAGES HOME OWNERS
ASSOCIATION,
Cross-defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Cynthia A. Freeland, Judge. Affirmed.
David A. Kay for Plaintiffs and Appellants.
Niddrie Addams Fuller Singh, David A. Niddrie, John S. Addams,
Catherine M. Asuncion; Law Office of John A. Simpson and John A. Simpson
for Defendants and Respondents.
Lewis Brisbois Bisgaard & Smith, Wendy S. Dowse, Daniel R. Velladao;
Law Offices of Scott C. Stratman and Wallace H. Sweet for Cross-defendant
and Respondent.
Farzad and Thy Salehi live in a condominium unit in which their
primary bedroom is located above Steve Kotowski and Karen Douglas’
garage. The community in which they live is governed by the Ivy Hill at
Scripps Ranch Villages Homeowners Association (HOA) under a Declaration
of Covenants, Conditions and Restrictions (CC&Rs).
In the late evening and early morning hours, Kotowski, Douglas, and
their adult children (the Kotowski family) used the garage, opening and
closing the garage door, running on the treadmill, watching television, and
socializing. Shortly after the Salehis moved in, the Salehis complained, first
to Kotowski and then to the property management company, that the noise in
the garage disturbed their sleep. But the complaints, which continued for
years, had no lasting effect on the Kotowski family’s use of their garage.
Years later, Kotowski complained to the management company that the
owners who preceded the Salehis had installed hardwood flooring in the
Salehis’ unit in violation of the community’s CC&Rs. Kotowski and Douglas
sued the Salehis for the violation and brought a cross-complaint against the
HOA for failing to enforce the CC&Rs. The Salehis filed a cross-complaint
against Kotowski and Douglas, as well as the HOA. The jury ultimately
decided in favor of the Salehis and the HOA and against Kotowski and
Douglas and awarded the Salehis $150,000 in damages. Kotowski and
Douglas raise multiple issues on appeal.
First, Kotowski and Douglas claim the Salehis’ nuisance and negligence
causes of action are supported by insufficient evidence that their noise was
excessive and unreasonable. The record, however, contains substantial
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evidence in the form of Farzad’s and Thy’s testimony from which a jury could
reasonably conclude the noise was both substantial and unreasonable. We
conclude the same substantial evidence supports the Salehis’ negligence
cause of action.
Second, Kotowski and Douglas argue the jury erroneously concluded
their use of the garage and common parking spaces violated the CC&Rs. But
we conclude the jury properly construed the CC&Rs and the evidence
supports its conclusion that Kotowski and Douglas breached the asserted
provision.
Third, Kotowski and Douglas claim the damages award was supported
by improper evidence. We disagree and conclude the evidence supports the
$150,000 award to the Salehis.
Finally, Kotowski and Douglas contend the judgment in favor of the
HOA was erroneous because the HOA failed to do anything to enforce the
Salehis’ hardwood flooring violation. We determine Kotowski and Douglas
forfeited this argument by presenting a one-sided recitation of the relevant
facts. Even overlooking this forfeiture, the record demonstrates the HOA
attempted to investigate the alleged violation until Kotowski and Douglas
sued the HOA. The claim accordingly fails on the merits as well.
We therefore affirm the judgment.
I.
A.
In December 2015, the Salehis purchased a townhome-style
condominium unit in San Diego County that shared walls with the unit
owned by Kotowski and Douglas. Two bedrooms in the Salehis’ unit,
including the primary, are above Kotowski and Douglas’ garage. Before the
Salehis moved in, a “flipper” had purchased and renovated the unit. The
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flipper installed hardwood flooring in areas next to, but not over, parts of the
Kotowski and Douglas unit.
Kotowski and Douglas moved into their unit in 1998. At the time of
trial in 2024, they had an adult daughter living with them. They also had
two adult daughters who were college students with their own apartment but
would spend summers and weekends at the unit.
Kotowski does not usually go to bed until around 2:00 a.m. When the
Salehis moved in, Kotowski’s and Douglas’ daughters were in high school and
often up until midnight doing homework. As of trial, they still did homework
into the late hours, and on Sundays Kotowski would drive them back to
school at around midnight.
Half the Kotowski family’s garage contains, among other items, a
television, a treadmill, a washer and dryer, a table, and several chairs. The
Kotowski family parks one car in the other half of the garage.
B.
Soon after the Salehis moved in, they experienced problems with noise
coming from the Kotowski family’s garage between the hours of 10:00 p.m.
and 3:00 a.m.
The Kotowski family would operate the garage door during these hours
rather than use their front door to enter and exit their unit. The opening and
closing of the garage door would wake the Salehis, who would then have
difficulty falling back asleep. Farzad testified that this happened “almost
daily.”
The Kotowski family would also use the treadmill and the television in
the garage during these hours with the garage door left ajar, causing sound
to carry to the Salehis’ primary bedroom. Members of the Kotowski family
also would gather and socialize at the table in the garage. These noises
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would keep the Salehis awake. According to Thy, these various disturbances
happened with “regularity.”
The Salehis also had issues with the Kotowski family’s parking. At the
time of trial, Kotowski and Douglas owned two cars, and they had owned up
to four at a time. Because they could fit only one car in their garage due to
the furniture occupying the other half of the garage, for a time they would
park their other cars in the guest parking spaces overnight. This
“contribute[d] to the [noise] problem” because they would “often” use the
garage door to access these vehicles at night. Despite knowing it was illegal,
Kotowski also used to park his plug-in hybrid car in front of his garage to
charge it, which partially blocked the Salehis’ access to their unit’s entrance.
C.
In June 2016, Farzad approached Kotowski to try to address the noise
problem. As Farzad was asking him to reduce the late-night noise, Kotowski
turned around and walked away. The noise continued.
In early 2017, Farzad spoke with the property manager about the noise
issues. A couple months later, Farzad exchanged e-mails with the manager
about the noise and parking issues. The HOA sent the Kotowski family
several violation notices, apparently to no avail.
In June 2017, the Salehis again attempted to resolve the problem with
the Kotowski family directly. Farzad spoke with Kotowski about the garage
opener noise. The next day, Farzad e-mailed Kotowski offering to buy a new
garage opener for the Kotowski family and to pay for its installation.
Kotowski acknowledged receipt of the e-mail but never followed up.
From late 2017 through March 2018, Farzad continued to complain to
the management company about the noise issues. According to him, things
“kind of quieted down for a period of time.”
5
At some point in 2017, at the HOA’s request, Farzad installed a camera
in a window to capture the Kotowski family’s garage door opening and
closing. It also served as a security camera. Both Farzad and Thy testified
the recordings captured by the camera did not do “justice” to the sounds the
garage door made. Farzad added the camera could not capture the
problematic vibrations the garage door opener caused.
But in 2020, “everything just resumed back to what it once was.”
Farzad renewed his complaints to the management company in March. In
May, the Salehis resorted to calling the nonemergency number for law
enforcement multiple times to complain about the noise coming from the
Kotowski family’s garage.
D.
Also in May, Kotowski and Douglas discovered the flippers had
installed hardwood flooring on the upper levels of the Salehis’ unit before the
Salehis moved in. They sent an e-mail to the property manager attaching
photographs from a realtor website and describing the sound they could hear.
They also sent a letter through their attorney to the Salehis.
According to Kotowski, the HOA never followed up with him, and “[a]s
far as [he] know[s],” the HOA “did nothing” to investigate and respond to his
complaint.
In June 2020, Kotowski received a letter sent on behalf of the HOA
inviting him to participate in an independent dispute resolution. Kotowski
refused the HOA’s invitation because the independent dispute resolution
would include the Salehis’ complaints but not his complaint about their
hardwood floors.
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E.
In June 2021, Kotowski sued the Salehis, asserting claims for breach of
the CC&Rs and nuisance.
In July, the Salehis cross-complained against Kotowski, Douglas, and
the HOA for nuisance, breach of the CC&Rs, negligence, intentional infliction
of emotional distress, and breach of fiduciary duty. The court ultimately
sustained Kotowski and Douglas’ demurrer to the claim for intentional
infliction of emotional distress.
In August, Kotowski and Douglas cross-complained against the HOA
for nuisance, breach of the CC&Rs, negligence, and breach of fiduciary duty.
F.
In 2024, the matter proceeded to a jury trial. The jury heard testimony
from the parties as well as several HOA board members, an expert for
Kotowski and Douglas on the value of the second parking spot within their
garage, and an expert for the HOA on real estate management.
As to the alleged damages suffered by the Salehis, an e-mail from
Farzad to the management company indicated that the appraisal of the
Salehis’ unit was “potentially affect[ed]” by “5-10%” by the issues with their
neighbors. This e-mail was admitted into evidence without objection.
Later, during Farzad’s testimony, his counsel attempted to solicit
information about the devaluation of the property due to the noise issues.
Kotowski and Douglas’ counsel objected, arguing the testimony was expert
opinion and hearsay. After sustaining the objection, the court instructed the
jury, “[a]ny testimony about the impact and the differential should be
disregarded.”
When discussing jury instructions, counsel for the HOA noted that the
instruction on damages included “‘loss of . . . value of [the Salehis’] property,’”
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prompting the court to say it thought this language should be omitted.
Counsel for the Salehis reminded the court, however, of Farzad’s e-mail to
the management company. The court then agreed that “[t]here is evidence.
It’s not a lot but it’s—there’s evidence.” When asked if there were “[a]ny
issues . . . on [his] side,” counsel for Kotowski and Douglas said, “No.”
The Salehis’ counsel argued devaluation based on the admitted e-mail
without objection, and the jury was instructed that the Salehis could recover
for “loss of . . . value of their property.”
Kotowski and Douglas prepared the verdict forms for their complaint
and cross-complaint and the Salehis prepared the verdict forms for their
cross-complaint. There were no objections to the special verdict forms.
G.
The jury found against Kotowski and Douglas on all their claims
against the Salehis and their cross-claims against the HOA.
The jury found against the Salehis on their cross-claims against the
HOA. The jury, however, found in the Salehis’ favor on their claims against
Kotowski and Douglas for breach of the CC&Rs, negligence, and nuisance.
The jury found the Salehis’ damages to be $150,000 and assigned 100%
responsibility for their harm to Kotowski and Douglas.
II.
A.
Kotowski and Douglas argue the judgment in favor of the Salehis on
their nuisance cause of action must be reversed because “there was
insufficient evidence that [they] produced excessive noise not commonly
associated with multi-family developments.” They argue the negligence
claim fails for the same reasons. We conclude otherwise.
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To recover on a claim of nuisance, a plaintiff must prove (1) “an
interference with [the plaintiff’s] use and enjoyment of [their] property,”
(2) the interference is “substantial, i.e., . . . it causes the plaintiff to suffer
substantial actual damage,” and (3) the interference is “unreasonable.”
(Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248,
262-263 [cleaned up].) Substantiality and unreasonableness “are questions of
fact that are determined by considering all of the circumstances of the case.”
(Id. at pp. 263-264.)
While “[i]t is clear that excessive and inappropriate noise may under
certain circumstances constitute an interference with the present enjoyment
of land amounting to a nuisance,” “it is equally clear that not every activity
[that] is offensive to the senses and interferes with the comfortable
enjoyment of life (Civ. Code, § 3479) is a nuisance.” (Mendez, 3 Cal.App.5th
at p. 264.)
As a general rule, we presume the correctness of the trial court’s
judgment. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) For factual
findings, our “power begins and ends with a determination of whether there
is any substantial evidence—contradicted or uncontradicted—to support the
trial court findings.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570,
582.) We view the evidence in the light most favorable to the prevailing party
and resolve any evidentiary conflicts and draw all reasonable inferences in
support of the judgment. (Ibid.) We neither reweigh the evidence nor revisit
the court’s credibility findings. (In re Alexander P. (2016) 4 Cal.App.5th 475,
492.)
It appears Kotowski and Douglas challenge the jury’s substantiality
and unreasonableness findings. We conclude substantial evidence supports
each of these elements.
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First, “with respect to the substantial damage element, the degree of
harm is to be measured by the ‘effect . . . the invasion [would] have on
persons of normal health and sensibilities living in the same community.’”
(Mendez, 3 Cal.App.5th at p. 263.) Trial testimony established that the
Kotowski family would open and close the garage door, keep the garage door
ajar, run on the treadmill in the garage directly below the Salehis’ primary
bedroom, watch television in the garage, and socialize in the garage, all
between the hours of 10:00 p.m. and as late as 3:00 a.m. Farzad testified this
activity disturbed his sleep and therefore “impact[ed his] quality of life.” He
felt “emotional[ly] upset” and “annoy[ed].” Thy testified the noise woke her
and kept her awake, which caused “emotional upset.” She testified the video
recordings from their camera did not “do justice to” the disruptive noises they
observed. This evidence amply supports the jury’s implicit finding that such
activity, over the course of eight years, would have a substantial negative
impact on persons living in the same community. Noise that may be
reasonable in some circumstances (like during the daytime) may be excessive
in others (such as at night, when most people sleep).
Second, “‘[t]he primary test for determining whether the invasion is
unreasonable is whether the gravity of the harm outweighs the social utility
of the defendant’s conduct, taking a number of factors into account.’”
(Mendez, 3 Cal.App.5th at p. 263.) Here, Kotowski and Douglas could have
mitigated the harm their activities caused the Salehis. During the late night
and early morning hours, they could have walked in and out of their home by
using their front door rather than the garage door. They could have
socialized, watched television, or used the treadmill in a room other than the
garage. Weighed against the substantial and real harm their actions caused
10
their neighbors, substantial evidence supported the jury’s finding that
Kotowski and Douglas’ actions were unreasonable.
Although the Salehis may not have testified that the noise was
“excessive,” their testimony established as much. Nothing required the
Salehis to have objective evidence, like recordings, to substantiate their
claims. “[T]he testimony of a single witness, even that of a party, is sufficient
to provide substantial evidence to support a finding of fact.” (Doe v. Regents
of University of California (2016) 5 Cal.App.5th 1055, 1074.) The Salehis
testified the recordings were not representative of the noises of which they
were complaining. Nor is it determinative that Kotowski and Douglas’
conduct did not violate HOA rules and was not “illegal.” “‘[I]rrespective of an
ordinance violation, [a] plaintiff may claim the existence of a nuisance.’”
(Chase v. Wizmann (2021) 71 Cal.App.5th 244, 257.) Accordingly, we
conclude the nuisance verdict in the Salehis’ favor was supported by
substantial evidence, even if, as Douglas and Kotowski note, no existing
authority is directly on point.
We further agree with the Salehis that the same facts supporting their
nuisance claim constitute substantial evidence Kotowski and Douglas were
negligent in subjecting their neighbors to unreasonable and damaging noise
and sleep deprivation.
B.
Kotowski and Douglas argue the CC&Rs were misconstrued below. We
disagree.
1.
Because extrinsic evidence was admitted to assist in construing the
CC&Rs, the Salehis claim we should uphold any reasonable interpretation of
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the CC&Rs supported by substantial evidence. Kotowski and Douglas do not
address the appropriate standard of review.
“In cases involving integrated contracts, the use of parol evidence is
always subject to the limitation that parol evidence may not be used to vary
or contradict the words the parties agreed upon.” (Thompson v. Asimos
(2016) 6 Cal.App.5th 970, 987.) “If there is no ambiguity—that is, the
language is reasonably susceptible to only one interpretation—our inquiry
into meaning has been completed and the one reasonable interpretation
applies to the facts.” (Ibid.) “If, on the other hand, ambiguity exists, the
appellate standard of review turns on whether the trial court based its
interpretation on the resolution of conflicts in the evidence. Our review is de
novo where the evidence is undisputed.” (Ibid.) “[B]ut where the trial court’s
interpretation rests on its resolution of conflicting evidence, any reasonable
construction will be upheld as long as it is supported by substantial
evidence.” (Ibid. [cleaned up].)
Accordingly, to the extent the statutory language is unambiguous and
only one reasonable interpretation exists, we will review the contract
interpretation de novo. To the extent the language is ambiguous and the
court admitted disputed extrinsic evidence, we will review the contract
interpretation for substantial evidence.
2.
The CC&Rs provision at issue is titled “7.11 PARKING
RESTRICTIONS: USE OF GARAGE.” In relevant part, it reads: “Each
garage shall be used for the parking of up to two automobiles. No Owner
shall leave his or her automobile parked or left within the Project other than
within such Owner’s garage. An Owner’s Invitees shall park only in areas
initially designated for parking purposes within the Project, which parking
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spaces may not be converted for other purposes. The garages shall be used
for parking automobiles only and shall not be converted for living or
recreational activities. Doors to garages shall be kept closed except during
the removal or entry of vehicles therefrom or thereto.”
3.
Kotowski and Douglas claim it was error to conclude they breached the
CC&Rs by using their garage in ways prohibited by the CC&Rs and parking
in common parking spaces. We disagree.
First, the CC&Rs’ language is clear that an Owner—which the CC&Rs
define as “the record owner”—can only park that Owner’s automobiles in the
Owner’s garage. Kotowski and Douglas are both record owners of their unit.
Accordingly, Kotowski and Douglas may not park any of their own
automobiles in the common spaces.
It is equally clear that only a non-owner—an “Invitee”—may park in
the common spaces. An “‘Invitee’” is “any person whose presence within the
Project is approved by or is at the request of a particular Owner, including,
but not limited to, lessees, tenants and the family, guests, employees,
licensees or invitees of Owners, tenants or lessees.” Although the
punctuation could be clearer, the only reasonable interpretation of this
provision is to allow the Owner’s lessees, the Owner’s tenants, and any
“family, guests, employees, licensees[,] or invitees” of the Owner, the Owner’s
lessees, and the Owner’s tenants to park in the common spaces. Accordingly,
to the extent Kotowski and Douglas’ children have their own cars, the CC&Rs
permit them to park in the common spaces. To the extent the children use a
car that belongs to their parents, however, it must be parked in the garage.
Here, substantial evidence supported the jury’s finding that Kotowski
violated this clause of the CC&Rs. Kotowski testified that he used to park
13
his car in the common spaces “probably almost every day.” Kotowski also
testified that he owns two vehicles, although one “is effectively his daughter’s
car.” The jury was entitled to conclude from this testimony that Kotowski
owns the car but allows his daughter to use it, so it belongs to an Owner and
thus must be parked in the garage. Accordingly, it was not error for the jury
to conclude Kotowski violated this clause; rather, that finding was supported
by substantial evidence. Given trial testimony established Kotowski opened
and closed his garage door to access his vehicles when parked outside his
garage, this breach is not, as Kotowski and Douglas argue, “not relevant to
this case.” (Boldface omitted.)
Second, the CC&Rs specify that “[t]he garages shall be used for parking
automobiles only and shall not be converted for living or recreational
activities.” The dictionary definition of “convert” means, in this context, “to
change from one form or function to another,” i.e., “converted the attic into a
bedroom.” (Merriam-Webster Dict. Online (2026) <https://www.merriam-
webster.com/dictionary/convert>.) One half of the Kotowski family’s garage
had items including a television, a treadmill, and a table and chairs. Farzad
testified the Kotowski family would gather in the garage to talk, exercise, and
watch television beginning at around 10:00 p.m. and ending as late as
3:00 a.m. A jury could reasonably conclude from this substantial evidence
that Kotowski and Douglas were not using one half of their garage “for
parking automobiles only” but instead had converted that half of their garage
into an area for recreational activities. Substantial evidence thus supports
the jury’s conclusion that Kotowski and Douglas breached this clause of the
CC&Rs, too. While Kotowski and Douglas claim that “living space” is a
technical term, the CC&Rs provision does not contain or define that alleged
term of art, and our construction does not rely on it.
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Accordingly, we conclude the jury’s finding that Kotowski and Douglas
breached section 7.11 of the CC&Rs is supported by substantial evidence and
affirm on that basis. Because the Salehis brought a sole claim for breach of
contract against Kotowski and Douglas based on different violations of the
same CC&R provision, we do not need to decide whether Kotowski and
Douglas also violated the alleged restriction on the use of the garage door for
pedestrian access.
C.
Kotowski and Douglas claim the $150,000 damages verdict—which,
according to them, “included 10% of the $750,000.00 value of the property
times-two, for the two property owners”—must be reversed because no
admissible evidence supports finding the Salehis’ property depreciated in
value as a result of the Kotowski family’s actions. But as the premise of
Kotowski and Douglas’ claim is flawed, we disagree.
The parties appear to agree that we review this issue for substantial
evidence.
Here, the basis of the damages award is not clear. The special verdict
form stated, “If you answered yes to questions [addressing the Salehis’ claims
against Kotowski and Douglas,] what are the Salehis[’] damages.” The jury
awarded 100% of the responsibility for the Salehis’ harm to Kotowski and
Douglas. The jury was not asked to specify what amount of damages was
attributable to each claim the Salehis brought or to each party individually.
Accordingly, Kotowski and Douglas’ contention that the damages award is
the purported devaluation of the property doubled is grounded in nothing but
speculation.
Rather, as the Salehis argue, Kotowski and Douglas have forfeited any
claim that the award is ambiguous or inadequately supported. “Because
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[Kotowski and Douglas] failed to request a special verdict on the issue of
damages, we have no way of determining what portion—if any—of the
[$150,000] was awarded as compensation for [depreciation in property value].
Accordingly, any claim of error on this point may be deemed” forfeited.
(Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 346.)
At any rate, the damages award is supported by substantial evidence.
We have affirmed the judgment in the Salehis’ favor on their claims against
Kotowski and Douglas, and as the Salehis note, the jury was instructed on
damages for annoyance, discomfort, and emotional distress under this theory.
Farzad testified that he was annoyed and emotionally upset, the late-night
noises “affected [his and Thy’s] quality of life,” and he ultimately resorted to
complaining about Kotowski and Douglas’ conduct because he “was trying to
protect [his] sanity.” Thy likewise testified the issues had “affected [her]
peace of mind” and made her “really emotional.” This testimony constitutes
substantial evidence supporting the jury’s $150,000 award of damages based
on annoyance, discomfort, and emotional distress.
Even assuming some portion of the damages award was based on the
devaluation e-mail Farzad sent to the HOA, we disagree with Kotowski and
Douglas that this was improper. The court instructed the jury that “[a]ny
testimony about the impact [on the unit’s value] and the differential should be
disregarded.” (Italics added.) It did not rule that all evidence of the price
differential should be disregarded. The e-mail from Farzad to the property
management company about the reduction in his unit’s value based on their
noise issues with Kotowski and Douglas was admitted without objection.
Accordingly, as the court noted, this was at least some evidence to support
the jury’s conclusion, if it made one, that the Salehis were entitled to
damages for lost value.
16
Because we have affirmed each claim on which the Salehis may have
recovered damages, we do not need to address Kotowski and Douglas’
remaining damages arguments.
D.
Kotowski and Douglas appeal the judgment in favor of the HOA,
although they do not specify which of the multiple claims against the HOA
their appeal relates to. They claim the HOA “did not even investigate the
claim of hardwood floors in violation of the CC&Rs” and they “are entitled to
an enforcement action by the HOA against th[e] admitted violation of the
CC&Rs.” Like the HOA, we infer Kotowski and Douglas are contesting the
sufficiency of the evidence underlying the verdict against them and in favor of
the HOA. We conclude Kotowski and Douglas have forfeited this issue and,
regardless, have failed to meet their burden to affirmatively show
entitlement to relief on appeal.
Kotowski and Douglas argue that our review of this issue is de novo
because the “facts concerning the lack of investigation” are “undisputed.”
But, as the record demonstrates, the parties disputed what actions the HOA
took in response to Kotowski and Douglas’ complaints about the hardwood
flooring. That the Salehis admitted at trial that their unit contained
hardwood floors in violation of the CC&Rs is irrelevant to the investigatory
actions the HOA took or failed to take before knowing of this admission.
Accordingly, to the extent Kotowski and Douglas challenge the factual
findings, we review their claim for substantial evidence. (SFPP v. Burlington
Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461.) To the extent
they challenge some other aspect of the judgment in favor of the HOA, they
have forfeited their claim by failing to adequately develop it. (Paterno v.
State of California (1999) 74 Cal.App.4th 68, 106.)
17
1.
The Kotowskis complained about the Salehis’ hardwood floors to the
condominium’s management company in May 2020, pointing the
management company to photographs on a realtor website. The management
company acknowledged the complaint the same day, saying it would “address
[it] with the owner.” A couple weeks later, Kotowski followed up with the
management company, asking, “What has been done with regard to this? . . .
Did you raise this issue with the HOA?” In July 2020, Kotowski’s counsel
sent a letter to the board of directors of the HOA to “raise (again) the issue
about the altered and illegal flooring in the Salehi Property - as presented to
the HOA on May 13, 2020.”
According to the HOA president at the time of trial, the property
management company to which Kotowski complained was terminated
effective December 31, 2020. New board members, including herself, were
elected and onboarded in January 2021. There was an issue in the transfer
of documents between the old and new management companies, which made
it “challenging” for the new board to get up to speed.
In March 2021, Douglas wrote an e-mail to the new management
company, copying several board members, again complaining about the
hardwood floors. In June 2021, Kotowski sued the Salehis.
In July, the property manager e-mailed the Salehis, “asking them if
they would come to a hearing” and bring photographs of their flooring. The
Salehis directed the HOA “‘to talk to [their] lawyer.’” That same month, the
Salehis cross-complained against Kotowski, Douglas, and the HOA. In
August, Kotowski and Douglas filed a cross-complaint against the HOA.
Had the meeting occurred, the HOA president testified that the board
would have engaged counsel because “[f]loors [we]re a big deal,” but by that
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point all the parties were in litigation. The HOA president explained, “I
know it seems like we’re disinterested if we don’t respond immediately, but
we have to do our homework, too, and figure out where we stand and what’s
the right thing to do. So it takes time.” Noting that the board “ha[s] to treat
people the same,” “our next step would have been to explore both sides more
aggressively, but we were in the middle of litigation. It’s a slammed door at
that point.”
According to the HOA president, the HOA is not allowed to enter units
simply to inspect them. The CC&Rs provide that the HOA can enter a unit,
with advance notice unless an emergency precludes it, only “for the purpose
of construction, maintenance or emergency repair.”
2.
As an initial matter, we agree with the HOA that Kotowski and
Douglas have forfeited this argument on appeal.
“An appellant challenging the sufficiency of the evidence to support the
judgment must cite the evidence in the record supporting the judgment and
explain why such evidence is insufficient as a matter of law.” (Rayii v. Gatica
(2013) 218 Cal.App.4th 1402, 1408.) “An appellant who fails to cite and
discuss the evidence supporting the judgment cannot demonstrate that such
evidence is insufficient.” (Ibid.) In other words, an appellant “who cites and
discusses only evidence in [the appellant’s] favor fails to demonstrate any
error and [forfeits] the contention that the evidence is insufficient to support
the judgment.” (Ibid.)
Here, in their opening brief, Kotowski and Douglas recite only the facts
favorable to them on this issue and completely omit any reference to the HOA
president’s testimony. Even after the HOA pointed out Kotowski and
Douglas’ “one-sided description of facts,” Kotowski and Douglas doubled down
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in their reply brief that the facts here were “undisputed.” This failure alone
merits affirming the judgment in the HOA’s favor on these claims.
3.
Even setting forfeiture aside, Kotowski and Douglas have failed to
show entitlement to relief on appeal.
While they contend the HOA “fail[ed] to investigate” their complaint
about the Salehis’ wood floors, the record establishes otherwise. Kotowski
and Douglas fail to show that the HOA knew anything about their complaints
until 2021, when Douglas directly e-mailed several members of the board.
They complained to the management company during the COVID-19
pandemic in May 2020 and sent a letter addressed to the HOA about their
complaint in July 2020, but the record does not establish the board of
directors ever received it. This was followed by a rocky transition to a new
property management company and a transition in the board of directors as
well. In March 2021, the HOA was directly informed of the hardwood
flooring issue by Douglas but needed time to get up to speed on it. After
Kotowski and Douglas sued the Salehis, the board sought to meet with the
Salehis to obtain evidence about the flooring in their unit. Under the
CC&Rs, they were not allowed to inspect the Salehis’ unit for this purpose.
Once Kotowski and Douglas sued the HOA over this alleged violation,
however, the HOA president indicated it was “a slammed door at that point.”
She testified that the board would have taken additional steps “[b]ut for the
litigation of this case.” This substantial evidence reveals the HOA took steps
to try to investigate and, if necessary, enforce the alleged violation before the
litigation stopped its efforts.
Accordingly, Kotowski and Douglas are incorrect that the record
establishes the HOA did nothing. Instead, the unique facts of this case
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constitute substantial evidence from which a reasonable jury could conclude
the HOA took reasonable steps to investigate Kotowski’s complaint. The jury
thus did not err in concluding the HOA was not liable to Kotowski and
Douglas. Given this outcome, we do not need to address Kotowski and
Douglas’ argument that the HOA lacked discretion to not investigate the
alleged CC&R violation.
III.
We affirm. The Salehis and the HOA are entitled to their costs on
appeal.
CASTILLO, J.
WE CONCUR:
MCCONNELL, P. J.
O’ROURKE, J.
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