Heights
Filed 8/3/12 Weiss v. Citrus Heights CA4/1
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
PAUL WEISS et al.,
Plaintiffs and Appellants,
v.
CITRUS
HEIGHTS, LLC, et al.,
Defendants and Respondents.
D058614
(Super. Ct.
No. GIC859147)
APPEAL from
judgments of the Superior Court
of
County, Luis Vargas, Judge.
Affirmed.
OVERVIEW
Appellants
Paul Weiss and Deborah Weiss, husband and wife (the Weisses), are the former
homeowners of real property located at 1435 Logan
Court, Escondido, California
(subject property). The subject property
is located within a 17-unit planned residential development called Citrus
Heights Development (subject development) created by respondents Citrus
Heights, LLC, and Trans West Housing, Inc. (together, developers). Respondent Citrus Heights Association (HOA or
Association) is a nonprofit mutual benefit corporation that manages the subject
development. The subject property at all
times relevant in this case was subject to a Declaration of Restrictions
(CC&Rs) that was properly recorded in May 2002.
The Weisses
in their operative complaint alleged
they purchased the subject property in 2002.
They further alleged the construction of the subject property was
delayed and there were myriad construction defects involving the subject
property. The Weisses' first and second
causes of action were against the developers for breach of contract and
negligence, respectively.
The
Weisses' third through eighth causes of action were against their former
neighbors, defendants David Gilbert and Danielle Gilbert (the Gilberts). The Weisses and the Gilberts shared a common
property line. The Gilberts are not parties
in this appeal.
The
Weisses' ninth cause of action for declaratory
relief was against the developers, the HOA, the Gilberts and respondent the
City of Escondido (City). The Weisses alleged that a controversy had
arisen regarding the respective rights and obligations of the parties to
"maintain the forced air sewer pipes which are part of the property that
was dedicated to the City of Escondido or the public at large" by the
developers. The Weisses further alleged
that the City contended that the "sole obligation to maintain and repair
the dedicated sewer pipes (or alternatively described as pipes under the public
streets and sidewalks) is the . . . HOA or the joint and several obligations of
the 17 members of that association."
In July
2009, a notice of default was
recorded against the subject property.
The subject property was sold at public auction in June 2010 and a
trustee's deed upon sale was properly recorded on June 25, 2010.
name="_ftnref1" title="">[1]
In response, the Weisses in June
2010 filed a separate action against their former lender, JP Morgan Chase, San
Diego County Superior Court Case No. 37-2010-00056768-CU-OR-NC (Chase
action). In the Chase action, the
Weisses alleged they "lost their interest in the [subject] property
includ[ing] improvements to the [subject] property . . . ." The Weisses in the Chase action alleged six
causes of action against their former lender, including a claim for wrongful
foreclosure.
The Weisses
appeal three separate judgments in the instant case.
As to the
HOA, the trial court granted without leave to amend the HOA's motion for
judgment on the pleadings, ruling the Weisses lacked standing to assert against
the HOA their declaratory relief claim (ninth cause of action) because the
conveyance of the subject property via the foreclosure sale divested the
Weisses of all membership rights in the HOA pursuant to Civil Code section
1358, subdivision (c). The trial court
subsequently granted the HOA's motion for an award of attorney fees and entered
judgment in favor of the HOA in December 2010.
In
connection with the City, the trial court summarily adjudicated the Weisses'
declaratory relief claim against the City, ruling that the City met its burden
to show the HOA and not the City was
responsible for the maintenance of the sewer system in the subject development,
which the HOA did not dispute. In so
doing, the trial court declined to rule on the City's separate motion for
judgment on the pleadings, which the City filed while its motion for summary
adjudication was pending and after the subject property was sold at the
foreclosure sale. Judgment was entered
in favor of the City in September 2010.
Finally, as
to the developers, the trial court granted their separate motion for judgment
on the pleadings, ruling that because the Weisses no longer owned the subject
property and because the Weisses "assigned their rights to all claims,
causes of action, judgments, settlements, and funds received and receivable
related to alleged damage to the [subject] [p]roperty, they are no longer the
real parties in interest" to assert claims against the developers. The trial court entered judgment in favor of
the developers in September 2010.
As we
explain, we conclude that judgment was properly entered with respect to
respondents the HOA, the City and the developers.
DISCUSSION
I
The HOA
A. Declaratory
Relief
1. Additional
Background
As noted ante, the Weisses' only claim against the HOA is for declaratory
relief regarding an alleged dispute over whether the City, the HOA or some other
party or parties were obligated to "maintain, repair or improve" the
sewer system at the subject development.
In granting
without leave to amend the motion of the HOA for judgment on the pleadings, the
trial court ruled in part as follows:
"As a
preliminary matter, the Motion was timely filed. The court can permit a party to file a Motion
for Judgment on the Pleadings later than 30 days after the action is initially
set for trial. (Code Civ. Pro[c]., §
438(e).) Here, good cause exists to
allow this Motion to proceed since the events giving rise to the Motion only
recently occurred.
"Defendant
Association is named in the Ninth Cause of Action for Declaratory Relief
only. This cause of action alleges there
is a controversy regarding the parties' obligations to maintain the sewer
system in the [subject] [d]evelopment.
[The Weisses] contend the HOA has no obligation to maintain the sewer
lines, and that it has no power to assess [the Weisses], as members of the HOA,
for the costs to maintain the sewer system.
[Citation.]
"The
[subject] [p]roperty at issue here has been sold at a non-judicial foreclosure
sale. [Citation.] This transfer of the [subject] [p]roperty
divests [the Weisses] of membership in the [HOA]. A voluntary or involuntary transfer of
property also includes transfer of the owner's membership interest in the
Association. (Civ. Code § 1358(c)[.])
"Thus,
there is no longer an 'actual controversy' between [the Weisses] and the
Association as to the Declaratory Relief Cause of Action. Since [the Weisses] are no longer members of
the Association, they will not be liable for any future assessments levied by
the Association for the maintenance or repair of the sewer system.
"In
addition, there is no longer an 'actual controversy' between [the Weisses] and
the Association as to this cause of action based on the court's ruling granting
Defendant City of Escondido's Motion for Summary Judgment. The court has determined Defendant City of
Escondido has no responsibility for the maintenance of the . . . sewer
system. There is nothing more to
adjudicate in the Ninth Cause of Action."
2. Analysis
The Weisses generally contend
the trial court erred in granting without leave to amend the HOA's judgment on
the pleadings because there was no evidence presented that the Weisses were
then not still in possession of the subject property and because even if the
HOA was in fact the owner of the sewer lines, the Weisses "also face
individual responsibility as a co-owner of the sewer line[s]."
The CC&Rs provide at Article
III, Section 3.1: "Every owner of a
Lot which is subject to assessment by the Association
shall be a Member of the Association.
Membership is appurtenant to and may not
be separated from ownership of a Lot." (Italics added.)
Similarly,
Civil Code section 1358, subdivision (c), provides:
"In a
planned development, any conveyance, judicial sale, or other voluntary or
involuntary transfer of the separate interest includes the undivided interest
in the common areas, if any exist. Any conveyance,
judicial sale, or other voluntary or involuntary
transfer of the owner's entire estate also includes the owner's membership
interest in the association."
(Italics added.)
We note the
Weisses do not discuss Civil Code section 1358, subdivision (c) in their
briefing, despite the fact the trial court specifically relied on this statute
in concluding there was no longer an "actual controversy" between the
parties because the Weisses were divested of membership in the HOA when the
subject property was sold at public auction.
In addition, the Weisses also do not address in their briefing the
application to them of Article III, Section 3.1.
In any
event, we independently conclude that once the Weisses ceased being members of
the HOA by contract (Article III, Section 3.1) and by operation of law (Civ.
Code, § 1358, subd. (c)) after the subject property was sold at public auction
and ownership of it was transferred, the Weisses were no longer the real
parties in interest pursuant to Code of Civil Procedure section 367
lacked standing to assert there was an "actual controversy" regarding
whether the City and not the HOA was
obligated to "maintain, repair or improve" the sewer system at the
subject development.
That the
Weisses allegedly were (or are) still in possession of the subject property
after the foreclosure sale does not change our conclusion.
III, Section 3.1 and by Civil Code section 1358, subdivision (c), membership in
the HOA goes hand in hand with ownership, and thus once the subject property
was sold at auction, the Weisses no longer were owners, and thus were no longer
members of the HOA to raise an alleged "actual controversy" involving
the sewer system at the subject development.
(See e.g., Countrywide Home Loans,
Inc. v. Tutungi (1998) 66 Cal.App.4th 727, 732-733 [holding buyer of
condominium unit purchased at foreclosure sale was entitled to insurance
proceeds distributed by homeowners association after the sale because under
Civil Code section 1358, subdivision (b) and under the applicable covenants,
conditions and restrictions of the development, once buyer became record owner
it replaced the former owners of that unit as members of the homeowners
association]; see also Kovich v. Paseo
Del Mar Homeowners' Assn. (1996) 41 Cal.App.4th 863, 865 [holding
homeowners association owed no duty to inform a prospective purchaser of
construction defects or the existence of a civil action against the developer
to repair the defects].)
Moreover,
because the Weisses were no longer members of the HOA after the sale of the
subject property in 2010, they no longer were subject to any
limited to members of the HOA who, as we have seen, must also be owners.
development] is deemed to covenant to pay to the Association . . . regular
assessments . . . which shall include an adequate reserve fund for the periodic
maintenance, repair and replacement of the Common Area and Common Maintenance
Area [as defined in the CC&Rs]" and "special assessments,"
which assessments shall be "a charge on the land and shall be a continuing
lien upon the Lot against which each such assessment is made." (Italics added.)])
In
addition, because, as discussed post,
we conclude the trial court properly entered judgment in favor of the City when
it found that the HOA and not the City was responsible to maintain the sewer
system at the subject development, for this separate and independent reason
there was no "actual controversy" for purposes of the Weisses' ninth
cause of action for declaratory relief.
B. Award
of Attorney Fees
1. Additional
Background
After the trial court granted
the HOA's motion for judgment on the pleadings, the HOA sought an award of
attorney fees in the amount of $66,414 and costs in the amount of $1,732.62.
The trial
court found the HOA was the prevailing party in the action within the meaning
of Code of Civil Procedure section 1032.
As such, the trial court further found that the HOA was entitled to an
award of reasonable fees pursuant to Code of Civil Procedure section 1354,
subdivision (c) and Section 10.7 of the CC&Rs. The trial court found no allocation of fees
was warranted based on the evidence submitted by the HOA that it incurred the
attorney fees in connection with the defense of the Weisses' operative
complaint. The trial court thus awarded
the HOA $60,610 in attorney fees.
The Weisses
contend the trial court's award of attorney fees was unreasonable because the
trial court should have required the HOA to allocate those fees it incurred in
defending the declaratory relief claim from those it allegedly incurred in
prosecuting its cross-complaint against the developers and the City. According to the Weisses, it was unreasonable
for the trial court to find that the HOA incurred more than $60,000 "to
defend against the non-monetary declaratory relief sought by [the Weisses
regarding who] had the responsibility to maintain sewers that were under the
[C]ity streets," while at the same time finding the HOA allegedly
"spent nothing to prosecute the claims for damages that it sought from the
very same defendants that [the Weisses] had sued."
2. Analysis
We note that the Weisses do not
challenge the findings of the trial court that the HOA was the prevailing party
when the trial court granted its motion for judgment on the pleadings and was
entitled to an award of reasonable attorney fees under the CC&Rs.
In deciding
whether to allocate attorney fees between contractual and noncontractual issues
and in deciding on an amount of fees to award, the trial court was required to
exercise its sound discretion and we will not reverse its award unless there
was an abuse of that discretion. (See PLCM
Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [amount of award]; Abdallah
v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111 [allocation].)
Here, there
is evidence in the record supporting the finding of the trial court that all of
the attorney fees incurred by the HOA related to its defense of the declaratory
relief claim. This evidence included the
declaration of the HOA's counsel, as well as counsel's billing records setting
forth a description of the work performed and the cost of such work, all of
which were included in the HOA's motion for an award of attorney fees and
costs.
Because we
conclude the trial court's finding is supported by credible evidence (see
Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 894), we further conclude the
trial court did not abuse its discretion when it awarded the HOA $60,610 in
attorney fees. (See PLCM Group, Inc.
v. Drexler, supra, 22
Cal.4th at p. 1095 [observing that a "trial court has broad authority to
determine the amount of a reasonable fee" and as such, and because the
" 'trial judge is the best judge of the value of professional
services rendered in his [or her] court . . .[,] his [or her] decision will not
be disturbed unless the appellate court [determines]' it abused its
discretion."].)
C.
Sanctions
The HOA filed against the Weisses and their attorney of
record an opposed motion to dismiss the appeal and a request for $5,500 in
sanctions pursuant to California Rules of Court, rule 8.891(e)(1)(A).
"One
of the reasons that the power to dismiss an appeal must be used with extreme
rarity is that determination of whether an appeal is frivolous entails at least
a peek at the merits—if not, as is usually the case, a thorough review of the
record—and, having taken that look, the appellate court is in a position to
affirm whatever was appealed rather than dismiss the appeal." (People
ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1319; see also People
v. Wende (1979) 25 Cal.3d 436, 443 ["Once the record has been reviewed
thoroughly, little appears to be gained by dismissing the appeal rather than
deciding it on its merits."].)
Here, the
question of whether the appeal is frivolous required us to review the record
and consider the arguments presented in the briefs by both sides. Although we ultimately affirmed the judgment
in favor of the HOA, we arrived at that conclusion based upon such review and
consideration. We therefore conclude the
appeal is not "frivolous at a glance." (See People
ex rel. Lockyer v. Brar, supra, 115 Cal.App.4th at p.
1320; see also In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
Moreover,
even if the appeal is arguably frivolous as to the order granting the HOA's
motion for judgment on the pleadings, it is not frivolous as to the order
awarding the HOA attorney fees. Although
an appeal can be partially dismissed, the policy in favor of promptly
dismissing frivolous appeals in order to avoid delay is less compelling when
the parties will still need to await the resolution of the surviving portion of
the appeal. As such, for this separate
and independent reason we deny the HOA's motion to dismiss and request for monetary
sanctions.
II
The City
1. Additional
Background
The
Weisses' only claim against the City was for declaratory relief (ninth cause of
action). As noted ante, this claim involved an alleged controversy over which party
or parties were obligated to "maintain, repair or improve" the sewer
system at the subject development. The
City filed its motion for summary adjudication in May 2010,
public auction. In that motion, the City
proffered substantial evidence showing the sewer system was neither dedicated
to the City nor did the City accept a dedication of that system as a public
sewer system. The City thus claimed it
owed no legal duty or obligation to maintain it.
In mid-July
2010, the HOA filed its statement of non-opposition to the City's summary
adjudication motion, agreeing that the sewer system was in fact privately
owned. Specifically, the HOA therein
stated that it "agrees that the Developer Defendants never dedicated the
private . . . sewer system to the City and further agrees the City never
accepted the system, nor did it accept responsibility for maintenance of the
system."
While the
motion for summary adjudication was pending, the subject property was sold at
public auction. In response, the City in
mid-July 2010 filed its own motion for judgment on the pleadings,
claiming—along with the HOA and the developers—that the Weisses no longer had
standing to seek declaratory relief regarding the party or parties responsible
to "maintain, repair or improve" the sewer system at the subject development
because the Weisses were no longer owners of the subject property and thus were
no longer members of the HOA.
The trial
court granted the Weisses' motion for summary adjudication in late July
2010. As a result, in August 2010 the
trial court refused to rule on the City's motion for judgment on the pleadings,
finding that motion "moot" because it already had granted the City's
summary adjudication motion.
In granting
summary adjudication, the trial court ruled in part as follows:
"Defendant
City . . . has met its burden to show it is not responsible for the maintenance
of the . . . sewer system.
"The
City submits evidence it has not expressly dedicated or accepted the . . .
sewer system. Government Code [section]
66439(c) provided at the time of the dedication in this case that 'an offer of
dedication of real property for street or public utility easement purposes
shall be deemed not to include any public utility facilities located on or
under the real property unless, and only to the extent that, an intent to
dedicate the facilities is expressly declared in the statement.'
"The
City submits evidence the Development is subject to a Declaration of
Restrictions ('CC&Rs'), which provide that the properties within the
Development are subject to the ordinances, regulations and permits issued by
the City. (City's UMF [undisputed
material facts] Nos. 24, 26[.]) The
Conditions of Approval contained in City Resolutions 5277 and 2000-221R provide
the . . . sewer system shall be maintained by the homeowners association. (City's UMF Nos. 16-17[.]) The Tract 820 Street Improvement Plans
drafted by the Developer also reference the homeowners association's
responsibility for the maintenance of the . . .
system. (City's UMF Nos. 19-20;
City's NOL [notice of lodgment] Ex. 6[.])
"The
City submits further evidence there is no specific dedication of the . . .
sewer system in the Final Map. The Final
Subdivision Map No. 14284 expressly includes an offer to dedicate two streets
within the Development. It also grants
the City a public utility easement on Lot 9, which is unrelated to the . . .
sewer system, and an easement for tree planning and maintenance. (City's UMF Nos. 22, 54; City's NOL Ex. 5[.]) The Final Map contains no express offer to
dedicate the . . . sewer system to the City.
(City's UMF No. 53; City's NOL Ex. 5[.])
Since the offer of dedication here contains no statement of intent to
dedicate the . . . sewer system to the City, under Government Code [section]
66439(c)[] the dedication is deemed not to include the . . . sewer system.
"The
City also submits evidence it has not impliedly accepted the . . . sewer
system. The City submits evidence there
has never been a public use or public maintenance of this system. (City's UMF No. 55[.]) Only the Development is serviced by this
system. ([John] Burcham Decl., ¶
7[.]) The City does not service or
maintain the system. (City's UMF No. 56;
Burcham Decl., ¶ 9[.]) The City does not
have the equipment or personnel to service the system. (City's UMF No. 58[.])
"[The
Weisses] have failed to show the existence of a triable issue of material
fact. [The Weisses] submit no evidence
the City expressly dedicated the . . . sewer system. [The Weisses] contend the City accepted the
dedication of the sewer system by accepting the Final Map. However, as discussed above, the Final Map
contains no statement of intent to dedicate the . . . sewer system to the City.
"[The
Weisses] also contend the City impliedly accepted the . . . [sewer] system
because it was involved in its design and construction. However, Marin
v. City of San Rafael (1980) 111 Cal.App.3d 591, relied upon by [the
Weisses], is inapplicable to the facts of the instant case. Marin is
an inverse condemnation case, and does not deal with the issue of street
dedications. Moreover, [the Weisses]
submit no evidence the City designed or constructed the . . . sewer system.
"[The
Weisses] further contend that had the City intended the homeowners to maintain
the sewer system, the City could have required such a provision be included in
the CC&Rs, or it could have refused to approve the CC&Rs. However, as discussed above, the CC&Rs
provide the properties are subject to the ordinances, regulations and permits
issued by the City, including Resolution No. 2000-111R and Conditions of
Approval TR 820. (City's UMF Nos. 24,
26; City's NOL Ex. 7 at p. 8[.]) The
regulations provide the . . . sewer system shall be maintained by the homeowners
association. (City's UMF Nos.
16-17[.]) Moreover, the City is not the
author of or a party to the CC&Rs.
(See City's NOL Ex. 7[.])
"[The
Weisses] have failed to create a triable issue of material fact regarding the
City's responsibility for the maintenance of the . . . sewer system. Therefore, summary adjudication of [the Weisses']
Ninth Cause of Action for Declaratory Relief is granted in favor of the City.
"The
City's request for judicial notice is granted.
"[The
Weisses'] request for judicial notice is granted.
"[The
Weisses'] evidentiary objections contained in their Separate Statement are
overruled. (Cal. Rules of Court, rule
3.1354(b)[.])"
2.
As a court of
review, we review judgments, not reasoning, and we will affirm a trial court's
order and judgment thereon if it is correct on any ground. (See Donovan v. RRL Corp. (2001) 26
Cal.4th 261, 278, fn. 5.)
As the City
recognizes in its briefing in this court, we need not consider whether the
trial court properly granted the City's summary adjudication motion in order to
affirm judgment in favor of the City, in light of the City's motion for
judgment on the pleadings that addressed the same issues raised by the HOA and
by the developers in their separate motions, discussed ante and post,
respectively. Although the trial court declined to rule on
the City's motion for judgment on the pleadings, we conclude as a matter of law
that once the subject property was sold at public auction and ownership of it
was transferred, the Weisses lacked standing to assert there was an
"actual controversy" regarding whether the City and not the HOA was
obligated to "maintain, repair or improve" the sewer system at the
subject development. (See e.g., Civ.
Code, § 1358, subd. (c); Code Civ. Proc., § 367.) Thus, as a matter of law judgment was
properly entered in favor of the City on the Weisses' declaratory relief cause
of action.
III
1. Additional
Background
As noted, the
Weisses sued developers for breach of contract, negligence and declaratory
relief based on alleged construction defects to the subject property. After the subject property was sold at public
auction in June 2010, developers filed their own motion for judgment on the
pleadings, arguing that the Weisses lost standing to pursue any claims against
them because the Weisses no longer owned the subject property as a result of
the foreclosure sale and because they defaulted under the terms of the deed of
trust, which in turn triggered the contractual assignment clause contained
therein.
The trial
court granted without leave to amend the developers' motion for judgment on the
pleadings, ruling in part as follows:
"[The Weisses] are no longer the real parties in interest with
standing to assert the First and Second Causes of Action [for breach of contract
and negligence, respectively]. A cause of
action for damage to real property accrues when the defendant's act causes
immediate and permanent injury to the property.
Thus, if a property owner suffers harm because of inadequate design or
construction work, a cause of action accrues to that owner. The owner may transfer that cause of action
to another, but without some manifestation of intent, the cause of action is
not transferred to a subsequent owner. (
81 Cal.App.4th 995, 1005[.])
"Here,
[the Weisses] executed a Deed of Trust, recorded on May 2, 2005, which assigns
[the Weisses'] rights and causes of action to the Lender. (Developer Defendants' NOL, Ex. 4[.]) Specifically, the Deed of Trust
provides: [¶] 'Borrower hereby
absolutely and irrevocably assigns to Lender all of Borrower's right, title and
interest in and to (a) any and all claims, present and future, known or
unknown, absolute or contingent, (b) any and all causes of action, (c) any and
all judgment or settlements . . . and (e) any and all funds received or
receivable in connection with any damage to such property . . . .' (Id. at
pp. 6-7[.])
"The
Property at issue has been sold at a non-judicial foreclosure sale. (Developer Defendants' NOL, Ex. 3[.]) The Trustee's Deed Upon Sale, recorded on
June 25, 2010, provides that the Trustee 'does hereby grant and convey . . . to
Bank of American, NA . . . all of its right, title, and interest in and to' the
Property. (Id. at p. 1[.]) In addition,
in [the Chase action] recently filed by [the Weisses], [the Weisses] allege
they have suffered 'a loss of their home' and that they have 'lost their
interest in the property.' (Developer
Defendants' NOL, Ex. 5 [.])
"Since
[the Weisses] no longer own the Property, and have assigned their rights to all
claims, causes of action, judgments, settlements, and funds received and
receivable related to alleged damage to the Property, they are no longer the
real parties in interest with standing to bring the First and Second Causes of
Action.
"[The
Weisses] also lack standing to bring the Ninth Cause of Action for Declaratory
Relief. Since [the Weisses] no longer
own the Property, there is no 'actual controversy' regarding [the Weisses']
responsibility to pay for any future assessments levied by the Association for
the maintenance or repair of the sewer system.
"In
addition, there is also no longer an 'actual controversy' between [the Weisses]
and the Developer Defendants as to this cause of action based on the court's
ruling granting Defendant City of Escondido's Motion for Summary
[Adjudication]. The court has determined
Defendant City of Escondido has no responsibility for the maintenance of the .
. . sewer system. There is nothing more
to adjudicate in the Ninth Cause of Action.
"[The
Weisses] contend the court should deny this Motion because they filed [the
Chase action] to set aside the non-judicial foreclosure. However, as discussed above, [the Weisses]
currently have no ownership interest in the Property, and are not the real
parties in interest with respect to their claims against the Developer
Defendants. Therefore, [the Weisses]
currently do not have standing to maintain the causes of action alleged against
Developer Defendants.
"Developer
Defendants' Request for Judicial Notice is granted."
2. Analysis
Turning first to the ninth cause
of action for declaratory relief, for the reasons provided ante in connection with the HOA and the City we independently
conclude that after the subject property was sold at public auction and
ownership of it was transferred, the Weisses lacked standing to assert there
was an "actual controversy" regarding whether the City was obligated
to "maintain, repair or improve" the sewer system at the subject
development. (See e.g., Civ. Code, §
1358, subd. (c); Code Civ. Proc., § 367.)
The trial court therefore properly granted the developers' motion for
judgment on the pleadings with respect to the declaratory relief cause of
action.
Turning
next to the breach of contract and negligence causes of action, for the same
reason we also conclude that any injury to the subject property claimed by the
Weisses was barred after the subject property was sold at public auction. At that point, the Weisses no longer were the
real parties in interest entitled to recover for such injury because they no
longer owned, or had the right to possess, the subject real property. Instead, the purchaser of the subject
property at foreclosure became the real party in interest with respect to any
injury to the subject property. (See
Code Civ. Proc., § 367; see also Del Mar
Beach Club Owners Assn. v. Imperial Contracting Co. (1981) 123 Cal.App.3d
898, 906 [noting that every action must be prosecuted in the name of the real
party in interest and further noting that "to state a cause of action for
injury to real property, plaintiff's ownership, lawful possession, or right to
possession, of the property must be alleged."].)
In any
event, we also agree with the developers that the assignment clause in the deed
of trust
title="">[10]
the Weisses executed in 2005 with their lender (e.g., JP Morgan, later to
become JP Morgan Chase) barred the Weisses' recovery against the
developers. (See Segal v.
Silberstein (2007) 156 Cal.App.4th 627, 633 [when there is no conflicting
extrinsic evidence concerning the meaning of contract language, we exercise our
independent judgment to interpret the contract under the well-established rules
of contract interpretation].) As such,
for this separate and independent reason we conclude the trial court properly
granted without leave to amend the developers' motion for judgment on the
pleadings on the first and second causes of action.
DISPOSITION
The
judgments in favor of respondents (e.g., HOA, the City and the developers) are
affirmed. Respondents to recover their
costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN,
J.
AARON,
J.
the trial court erred when it took judicial notice of the trustee's deed to
establish the subject property had in fact been sold. Initially, we note that the Weisses failed to
object to the HOA's request for judicial notice and failed to lodge an
evidentiary objection to the certified copy of the recorded trustee's deed,
which we deem fatal to their contention.
(See Duronslet v. Kamps (2012)
203 Cal.App.4th 717, 726 [noting the failure to object to evidence admitted by
the trial court forfeits on appeal the argument such evidence was inadmissible
because among other things the "[l]ack of such objection deprives the
proponent of the evidence an opportunity to establish a better record or some
alternative basis for admission."].)
Despite forfeiting the issue, we nonetheless conclude the trial court
properly exercised its discretion when it took judicial notice of the certified
copy of the trustee's deed, among other documents. (See Dart
Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059,
1079.) Finally, even if we assume the
trial court erred when it took judicial notice of the trustee's deed, we
conclude that alleged error was harmless because the Weisses admitted in a
related action that they lost their interest in the subject property to
foreclosure. (See Cal. Const., art. VI,
§ 13; Tudor Ranches, Inc. v. State Comp.
Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432 [noting that where evidence
is wrongfully excluded, that error is not reversible unless " ' "it
is reasonably probable a result more favorable to the appellant would have been
reached absent the error. [Citations.]" [Citations.]' ")
argument before this court despite the fact notice of oral argument was sent
address on two separate occasions,
after it was discovered that the Weisses' counsel (who was also their trial
counsel) had passed away after briefing
was completed. The Weisses made no
attempts to communicate with this court regarding their situation, or otherwise
moved to substitute new counsel or themselves into the action. Although we reach the merits of their appeal,
we note it would not have been inappropriate under the circumstances presented
here to treat the Weisses' failure to appear at oral argument as an abandonment
of their appeal. (See Jordan v.
County of Los Angeles (1968) 267 Cal.App.2d 794, 798 [recognizing the rule
that a party forfeits the right to challenge action by trial court when party
fails to file briefs or appear for
oral argument].)
