Filed 10/19/26 Yu v. 2908 Deakin Street Homeowners’ Assn. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
SHEK LIM YU,
Plaintiff and Appellant,
A172169/A173220
v.
2908 DEAKIN STREET (Alameda County Super. Ct. No.
HOMEOWNERS’ ASSOCIATION, 24CV064151)
Defendant and Respondent.
Shek Lim Yu owned a unit at 2908 Deakin Street, in
Berkeley, between 1991 and 2004. Twenty years later, he sued
the 2908 Deakin Street Homeowners’ Association (the
Association)—while represented by his daughter and attorney,
Elizabeth Yu—alleging that he was falsely told, in 1996 and
2000, that owners would face a fine if they did not take on
management responsibilities and that he could only avoid a fine
by taking the Association’s garbage out every week. In these
consolidated appeals, Shek Lim appeals from a judgment of
dismissal—after the trial court sustained, without leave to
amend, the Association’s demurrer to his second amended
complaint—and the trial court’s post-judgment award of the
Association’s attorney fees. Shek Lim argues, among other
things, that his action was not barred by the applicable statutes
of limitations and that the trial court lacked contractual or
statutory authority for its fee award. We disagree and affirm.
1
BACKGROUND
A.
When Shek Lim bought his unit, in 1991, the five-unit
building at 2908 Deakin Street was operated as a tenancy in
common. In 2000, the building converted to condominiums and
became operated by the Association.
Initially, garbage bin duty for the building was rotated
among the five owners. In 1996 (while the building was still
operating as a tenancy in common), two of the other owners
(Andrew Potter and Ralph Murphy) told Shek Lim that the
building’s owners would face a fine if they did not take on
management responsibilities. Because Shek Lim’s limited
English language proficiency would prevent him from taking on
most other management responsibilities, Potter told Shek Lim
that he could help manage the common property by taking the
common garbage bin to the curb each week and returning the
empty bin to the garbage stall after pickup. To avoid a fine, Shek
Lim complied with Potter’s demand.
When the building converted to condominiums, no one from
the Association’s board of directors informed Shek Lim that he
was no longer required to take out the Association’s garbage.
Potter—who was now an Association board member—told Shek
Lim that he had to continue with the garbage assignment on a
permanent basis. Unbeknownst to Shek Lim, the Association’s
declaration of covenants, conditions, and restrictions (CC&Rs)
stated that the Association’s governing board is solely responsible
for management and maintenance of the building’s common area.
Shek Lim continued taking out the common garbage.
On February 26, 2004, Shek Lim deeded the property to his
daughter (and attorney in this case), Elizabeth. Shek Lim
continued to live in the same unit at 2908 Deakin Street and
2
continued to take out and return the Association’s trash until he
moved out in February 2011.
B.
About 13 years later, on February 15, 2024, Shek Lim filed
a complaint against the Association. In his operative (second
amended) complaint, Shek Lim alleges causes of action for
constructive fraud, breach of the duty of undivided loyalty, and
an Unruh Civil Rights Act (Civ. Code, § 51) violation.1 He alleges
the Association misled him to believe that, as an owner of one of
the building’s units, he was obligated to help maintain the
common area by taking the Association’s garbage bin to the curb
every week and returning the empty bin to the garbage stall after
pickup. Shek Lim alleges the Association committed constructive
fraud and breached its duty of loyalty by failing to tell him that,
as the CC&Rs provide, the Association is solely responsible for
maintenance of the common area. He also alleges that the
Association violated the Unruh Civil Rights Act by denying him
equal accommodation—in that he was required to do manual
labor—because of his race, national origin, ancestry, or primary
language.
Shek Lim voluntarily filed a first amended complaint
before the Association demurred to his complaint. The
Association then filed a demurrer, which argued (among other
things) that Shek Lim’s claims in the first amended complaint
were time barred. The trial court agreed and sustained the
demurrer, with leave to amend.
When Shek Lim filed a second amended complaint, the
Association again demurred. The trial court sustained the
demurrer, without leave to amend, concluding all three causes of
action are barred by the applicable statutes of limitation (Code
1 Undesignated statutory references are to the Civil Code.
3
Civ. Proc., §§ 335.1, 338, subd. (d)) and ordered the action
dismissed.
The association then filed a motion for attorney fees,
arguing it was entitled to a total of $38,595 in attorney fees,
pursuant to section 5975, subdivision (c), because it had prevailed
in an action seeking to enforce the governing document (CC&Rs)
of a common interest development. The Association also cited a
clause in the CC&Rs and section 1717 in support of their motion
to recover attorney fees.
The trial court granted the Association’s motion for
attorney fees and awarded the amount originally requested—
$38,595. In doing so, the court ruled fees were recoverable on two
alternative bases—a contractual fee provision in the CC&Rs and
because the Association prevailed in an action to enforce the
governing documents (§ 5975, subd. (c)). The court explained:
“Although none of [Shek Lim’s] causes of action are styled as
claims for breach of the CC&Rs, they are all premised on the
allegation that [the Association] . . . failed to fulfill its duties in
accordance with the CC&Rs.”
DISCUSSION
A.
Shek Lim insists the trial court erred in concluding his
claims were time-barred as a matter of law. He is wrong.
1.
A demurrer tests the legal sufficiency of the complaint. We
independently review the complaint to decide de novo whether it
alleges facts sufficient to state a cause of action. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318; see also Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191
[“application of the statute of limitations on undisputed facts is a
purely legal question,” which is reviewed de novo].) In doing so,
we accept as true all material factual allegations, but not
4
contentions, deductions or conclusions of fact or law. We also
consider matters that may be judicially noticed. (Blank, at p.
318.) “ ‘[A]ny allegations that are contrary to the law or to a fact
of which judicial notice may be taken will be treated as a nullity.’
[Citations.] A party may not avoid demurrer by suppressing
facts, including those that are judicially noticeable, which prove
the pleaded facts false.” (Gentry v. eBay, Inc. (2002) 99
Cal.App.4th 816, 824; accord, Cansino v. Bank of America (2014)
224 Cal.App.4th 1462, 1468, 1474.)
“ ‘Resolution of the statute of limitations issue is normally a
question of fact.’ [Citation.] More specifically, as to accrual, ‘once
properly pleaded, belated discovery is a question of fact.’
[Citation.] As our state’s high court has observed: ‘There are no
hard and fast rules for determining what facts or circumstances
will compel inquiry by the injured party and render him
chargeable with knowledge. [Citation.] It is a question for the
trier of fact.’ [Citation.] ‘However, whenever reasonable minds
can draw only one conclusion from the evidence, the question
becomes one of law.’ [Citation.] Thus, when an appeal is taken
from a judgment of dismissal following the sustention of a
demurrer, ‘the issue is whether the trial court could determine as
a matter of law that failure to discover was due to failure to
investigate or to act without diligence.’ ” (E-Fab, Inc. v.
Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1320.)
“ ‘A demurrer on the ground of the bar of the statute of
limitations will not lie where the action may be, but is not
necessarily barred.’ [Citations.] It must appear clearly and
affirmatively that, upon the face of the complaint, the right of
action is necessarily barred.” (Lockley v. Law Office of Cantrell,
Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)
2.
Shek Lim does not challenge the trial court’s conclusion
that the statute of limitations applicable to his first and second
5
causes of action—for constructive fraud and breach of fiduciary
duty—is three years. (See Code. Civ. Proc., § 338, subd. (d)
[limitations period for a fraud cause of action is three years from
accrual]; Fuller v. First Franklin Financial Corp. (2013) 216
Cal.App.4th 955, 963.) He similarly concedes that the statute of
limitations governing his third cause of action—for violation of
the Unruh Civil Rights Act—is two years. (See Code Civ. Proc.,
§ 335.1.)
Shek Lim’s action was not filed until 2024—decades after
the purportedly deceitful representations regarding common area
maintenance—which also constituted purported breaches of
fiduciary duty—were made, in 1996 and 2000, and more than a
decade after he ceased taking out the common garbage in 2011.
Shek Lim argues that his action is nonetheless timely because
the discovery rule postponed accrual of all three causes of action
until February 16, 2022.
In general, a cause of action accrues when it is complete
with all its elements. Courts usually use the date a wrongful act
is done for purposes of determining when the limitations period
starts. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797,
806 (Fox); Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) The
discovery rule is an exception. Under the discovery rule, accrual
of a cause of action is postponed “until the plaintiff discovers, or
has reason to discover, the cause of action.” (Fox, at p. 807.)
Under this standard, accrual does not wait until the plaintiff
knows facts supporting each specific legal element of the cause of
action; it occurs when the plaintiff has “reason to at least suspect
that a type of wrongdoing has injured them.” (Id. at p. 807.)
“ ‘The policy reason behind the discovery rule is to ameliorate a
harsh rule that would allow the limitations period for filing suit
to expire before a plaintiff has or should have learned of the
latent injury and its cause.’ ” (Pooshs v. Philip Morris USA, Inc.
(2011) 51 Cal.4th 788, 797-798, italics added.)
6
The discovery rule applies to fraud actions. (Code Civ.
Proc., § 338, subd. (d); E-Fab, Inc. v. Accountants, Inc. Services,
supra, 153 Cal.App.4th at p. 1318.) Code of Civil Procedure
section 338, subdivision (d), provides that a cause of action based
on fraud or mistake “is not deemed to have accrued until the
discovery, by the aggrieved party, of the facts constituting the
fraud or mistake.” According to our Supreme Court, this means
that a plaintiff must affirmatively excuse his failure to discover
fraud within three years by showing that they were not negligent
in failing to make the discovery sooner and that they had no
actual or presumptive knowledge of facts sufficient to put them
on inquiry. (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412,
437.)
“In order to rely on the discovery rule for delayed accrual of
a cause of action, ‘[a] plaintiff whose complaint shows on its face
that his claim would be barred without the benefit of the
discovery rule must specifically plead facts to show (1) the time
and manner of discovery and (2) the inability to have made
earlier discovery despite reasonable diligence.’ [Citation.] In
assessing the sufficiency of the allegations of delayed discovery,
the court places the burden on the plaintiff to ‘show diligence’;
‘conclusory allegations will not withstand demurrer.’ ” (Fox,
supra, 35 Cal.4th at p. 808, italics omitted; accord, April
Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 833 [“ ‘[i]t is
plaintiff’s burden to establish “facts showing that he was not
negligent in failing to make the discovery sooner and that he had
no actual or presumptive knowledge of facts sufficient to put him
on inquiry” ’ ”], italics added.)
Shek Lim does not meet his burden. “The discovery rule
. . . ‘sets forth two alternate tests for triggering the limitations
period: (1) a subjective test requiring actual suspicion by the
plaintiff that the injury was caused by wrongdoing; and (2) an
objective test requiring a showing that a reasonable person would
7
have suspected the injury was caused by wrongdoing. [Citation.]
The first to occur under these two tests begins the limitations
period.’ ” (Kernan v. Regents of University of California (2022) 83
Cal.App.5th 675, 681.) However, Shek Lim myopically focuses on
only the first (subjective) test. He alleges that he relied on the
Association’s representations concerning the garbage
responsibilities and only “discovered the facts constituting [the
Association’s] fraud on February 16, 2022, when he was notified
by his daughter that the [Association]’s attorney wanted to
depose him for his daughter’s case against the [Association].”
Shek Lim is referring to a lawsuit against the Association that
his daughter filed, more than four years earlier, in October 2017,
over (in part) his (Shek Lim’s) garbage duties.
Shek Lim suggests that it was only in 2022 that he learned
that the CC&Rs required Association board members to manage
the commons area and continues: “Only after learning about the
lawsuit between his daughter and the [Association] on February
16, 2022, and during the subsequent discussions with his
daughter about what had transpired during his time living in
[their unit], did he realize just how wrongfully and oppressively
the [Association]’s board of directors and officers had treated him
in assigning him manual labor related to the management and
maintenance of the common area garbage stall for over a decade.”
Shek Lim wholly fails to plead specific facts showing that,
despite reasonable diligence, he was unable to have discovered
earlier that he had been misled and that the CC&Rs required
only Association board members to manage the common areas.
(See Fox, supra, 35 Cal.4th at p. 808; Hobart v. Hobart Estate Co.,
supra, 26 Cal.2d at p. 437 [“[a] plaintiff must affirmatively excuse
his failure to discover the fraud within three years after it took
place, by establishing facts showing that he was not negligent in
failing to make the discovery sooner and that he had no actual or
presumptive knowledge of facts sufficient to put him on
8
inquiry”].) “The courts interpret discovery in this context to
mean not when the plaintiff became aware of the specific wrong
alleged, but when the plaintiff suspected or should have
suspected that an injury was caused by wrongdoing.” (Kline v.
Turner (2001) 87 Cal.App.4th 1369, 1374.) “ ‘Under this rule
constructive and presumed notice or knowledge are equivalent to
knowledge. So, when the plaintiff has notice or information of
circumstances to put a reasonable person on inquiry, or has the
opportunity to obtain knowledge from sources open to [him,] . . .
the statute commences to run.’ ” (Parsons v. Tickner (1995) 31
Cal.App.4th 1513, 1525, italics added.)
First, Shek Lim was put on notice when he received and
signed the CC&Rs. Shek Lim admits in his operative pleading
that he signed the CC&Rs in 1999. The judicially noticed records
confirm as much. A reasonably diligent person would have read
the CC&Rs when they signed them. (See Alfaro v. Community
Housing Improvement System & Planning Assn., Inc. (2009) 171
Cal.App.4th 1356, 1393 (Alfaro) [grant deeds disclosing deed
restriction gave plaintiffs actual knowledge of deed restriction
and defendant developer’s nondisclosure sufficient to start
limitations period].) Had Shek Lim done so, he would have
known in 1999—decades before February 16, 2022—that the
CC&Rs made the Association solely responsible for the
maintenance of the common area. His limited English
proficiency does not shield him from the consequences of having
signed the CC&Rs. (See Alfaro, supra, 171 Cal.App.4th at p.
1393, fn. 23 [“it would be prudent for an illiterate first-time
homebuyer to get the help of a trusted person in reading and
translating the documents seemingly essential to becoming a
homeowner”].)
The mere fact that the CC&Rs were recorded does not
somehow erase the fact that he had actual notice of them. Shek
Lim relies on real estate cases involving affirmative
9
misrepresentations where the defendants were held to be
potentially liable even though the plaintiffs arguably could have
discovered the truth from public records had they been
investigated. (Bishop Creek Lodge v. Scira (1996) 46 Cal.App.4th
1721, 1734; Seeger v. Odell (1941) 18 Cal.2d 409, 414–415.) In
such a scenario, the law does not provide a defense to fraud when
the victim had constructive notice of the truth because it was
discoverable from public records not easily accessible to them.
(Bishop Creek Lodge, at p. 1734; National Auto & Casualty Ins.
Co. v. Payne (1968) 261 Cal.App.2d 403, 413; Seeger, at pp. 414–
415.) However, the same rule does not apply to the question of
when to start the statute of limitations (Payne, at pp. 413–415)
especially if the plaintiff—to discover an alleged failure to
disclose—does not need to investigate and merely needs to review
documents they already have. (Roche v. Hyde (2020) 51
Cal.App.5th 757, 803; Alfaro, at pp. 1385–1387, 1392–1394;
Stevenson v. Baum (1998) 65 Cal.App.4th 159, 166–167.)
Although “defrauded buyers will not be deemed to have
constructive notice of public records, this does not insulate them
from evidence of their actual knowledge of the contents of
documents presented to them or from being charged with inquiry
notice based on those documents.” (Alfaro, at p. 1389.)
Second, even setting aside the CC&Rs, court records
judicially noticed by the trial court further demonstrate that a
reasonable person in Shek Lim’s circumstances had the
opportunity, long before February 16, 2022, to obtain knowledge
that he had been misled. Those records show that, on October 6,
2017, Elizabeth—who is Shek Lim’s daughter, his attorney in
this case, and who owned the relevant unit (at 2908 Deakin St)
where Shek Lim lived between 2004 and 2011—filed her own
complaint alleging that the Association “trick[ed] [Elizabeth] and
[her] family into taking on their garbage duties for them, for over
15 years.”
10
In her first amended complaint, filed on April 24, 2018,
Elizabeth further alleged: “On or about April 1996, the managing
body that was the predecessor to the board of directors, under the
color of authority, imposed on [Elizabeth’s] father the requirement
to take the common garbage bin for the building out to the street
on a weekly basis for collection and return it later that evening,
with the benefit that the members of management would not
have to do it themselves. [Elizabeth’s] father was assigned the
obligation to provide garbage services to the community under
the color of authority of the then governing body, without his
informed consent, and without compensation. [¶] . . . [¶] In or
around April 2006, [Elizabeth] was living in Los Angeles County,
and [her] father was still living in [the unit], and acting as her
agent for purposes of Association business, including taking on
the garbage duty assigned to [their unit]. Based on information
and belief, [Elizabeth] alleges that then board members Andrew
Potter and Ralph Murphy, under the color of authority, reaffirmed
to [Elizabeth] through her agent, that the owner of [the unit] has a
personal obligation to take out the community garbage bin for the
Association. [Elizabeth] has expressed the unfairness of this
requirement to the board previously.” (Italics added.)
In her second amended complaint, filed on September 7,
2018, Elizabeth pled her own fraud and breach of fiduciary
causes of action. In the former, she alleged that “[t]he truth was
that the refuse/trash/recycling bins are part of the common area
and as such were to be managed and maintained by the
Association, and not by the individual owners.”
Elizabeth’s pleadings demonstrate that, no later than April
24, 2018, she suspected that both she and Shek Lim had been
injured by wrongdoing. We can also infer from these pleadings
that Shek Lim and his daughter discussed the Association’s
wrongdoing with respect to the trash assignment before she filed
her original complaint. How else could Elizabeth allege, in 2017,
11
that “[t]he Board has . . . trick[ed] . . . [Elizabeth’s] family into
taking on their garbage duties for them, for over 15 years”? After
all, both Shek Lim’s and Elizabeth’s pleadings admit that she did
not live in the unit between 1996 and 2011—which is also when
the purported misrepresentations to Shek Lim occurred. She
could not have properly made allegations regarding Shek Lim’s
mental state by discussing the situation with anyone else or
reading the HOA board’s minutes.
Thus, because Shek Lim’s allegation—that he first
discussed the Association’s purported wrongdoing with his
daughter on February 16, 2022—conflicts with the judicially
noticed court records, we cannot accept it as true. (Gentry v.
eBay, Inc., supra, 99 Cal.App.4th at p. 824; Cansino v. Bank of
America, supra, 224 Cal.App.4th at pp. 1468, 1474.)
Third, Shek Lam does not establish diligence. Even if we
were to accept Shek Lim’s (highly implausible) assertion that he
and Elizabeth did not discuss her case against the Association
until February 16, 2022 and that she obtained all the requisite
“information and belief” for her allegations solely from the
Association’s directors and officers, Shek Lim still does not meet
his burden. He states that Elizabeth was not acting as his
attorney at the time she filed her own suit. But he fails to plead
specific facts that explain why, in the exercise of reasonable
diligence, he could not have discovered the falsity of the
Association’s representations in 2018 simply by communicating
with his daughter. (See Fox, supra, 35 Cal.4th at pp. 807–808.)
Shek Lim insists he had no duty of inquiry because he had
a fiduciary relationship with the Association that entitled him to
rely on Potter’s expertise regarding the CC&Rs and meant he
was blissfully unaware he had been wronged. Even if we assume
that Shek Lim is correct that the Association acted as his
fiduciary for some period (until 2004 or 2011), we cannot agree
that his cause of action did not accrue until February 16, 2022.
12
(See Alfaro, supra, 171 Cal.App.4th at p. 1394.) “A person in a
fiduciary relationship may relax, but not fall asleep. ‘[I]f she
became aware of facts which would make a reasonably prudent
person suspicious, she had a duty to investigate further, and she
was charged with knowledge of matters which would have been
revealed by such an investigation.’ ” (Ibid.)
The only reasonable inference to be taken from the
allegations and the judicially noticed documents is that Shek Lim
suspected he had been injured by the Association’s wrongdoing by
no later than 2018—long after any fiduciary duty had
terminated. Shek Lim did not meet his burden to plead facts
showing that, despite diligent investigation, the accrual of his
causes of action was postponed beyond 2018. (See Fox, supra, 35
Cal.4th at pp. 808–809.) Because his complaint was filed more
than five years later (in 2024), the trial court did not err in
sustaining the Association’s demurrer. (Code Civ. Proc, §§ 335.1,
338, subd. (d).)
Shek Lim also fails to demonstrate how his complaint could
be amended to overcome the statute of limitations bar.
Accordingly, the trial court did not abuse its discretion in
dismissing the second amended complaint without leave to
amend. (See Zelig v. County of Los Angeles (2002) 27 Cal.4th
1112, 1126 [plaintiff bears burden to show “ ‘reasonable
possibility that the defect [in complaint] can be cured by
amendment’ ”]; Quiroz v. Seventh Ave. Center (2006) 140
Cal.App.4th 1256, 1281–1282; Yee v. Mobilehome Park Rental
Review Bd. (1998) 62 Cal.App.4th 1409, 1429.) We need not
address the other bases upon which the trial court relied in
sustaining the demurrer without leave to amend.
B.
Shek Lim also argues the trial court erred by awarding the
Association—who was undisputedly the prevailing party—its
attorney fees. We disagree.
13
1.
“[R]ecoverable litigation costs . . . include attorney fees, but
only when the party entitled to costs has a legal basis . . .
grounded in an agreement, statute, or other law, upon which to
claim recovery of attorney fees.” (Santisas v. Goodin (1998) 17
Cal.4th 599, 606.)
The Davis-Stirling Common Interest Development Act
(§ 4000 et seq.), which “governs an action to enforce the recorded
covenants and restrictions of a common interest development”
(Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246
Cal.App.4th 761, 773), provides a statutory basis for fee shifting:
“In an action to enforce the governing documents, the prevailing
party shall be awarded reasonable attorney’s fees and costs.”
(§ 5975, subd. (c).) The prevailing party is entitled to attorney
fees “ ‘as a matter of right’ ” and the trial court is obligated to
award attorney fees “ ‘whenever the statutory conditions have
been satisfied.’ ” (Salehi v. Surfside III Condominium Owners
Assn. (2011) 200 Cal.App.4th 1146, 1152, italics omitted
[construing former § 1354].) “ ‘Governing documents’ means the
declaration [of CC&Rs] and any other documents, such as bylaws,
operating rules, articles of incorporation, or articles of
association, which govern the operation of the common interest
development or association.” (§ 4150; Ostayan v. Nordhoff
Townhomes Homeowners Assn., Inc. (2003) 110 Cal.App.4th 120,
127.)
To determine whether a particular action is an action to
enforce the governing documents, courts look at “the essence” or
gravamen of a claim. (Salawy v. Ocean Towers Housing Corp.
(2004) 121 Cal.App.4th 664, 671; accord, Rancho Mirage Country
Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252,
258–260; Kaplan v. Fairway Oaks Homeowners Assn. (2002) 98
Cal.App.4th 715, 717, 719–721.) “[T]he action must do more than
‘ “aris[e] out of or relate[] to” the governing documents.’
14
[Citation.] Rather, the gravamen of the action must seek to
enforce rights provided by the governing documents.” (WCST
Enterprises LLC v. Ling (2026) 123 Cal.App.5th 768, 781.) We
review this determination de novo. (Mountain Air Enterprises,
LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751;
Salawy, at p. 669.) We review the amount of a trial court’s fees
award for abuse of discretion. (Vera v. REL-BC, LLC (2021) 66
Cal.App.5th 57, 72; Dzwonkowski v. Spinella (2011) 200
Cal.App.4th 930, 934.)
2.
Shek Lim insists the trial court erred by ruling his
operative complaint sought to enforce the CC&Rs. He insists his
claims instead sought to enforce “the statutory laws prohibiting
fraud and the common law governing fiduciary duties.” We agree
with the Association that, although styled as tort or statutory
claims, the gravamen of Shek Lim’s action was to enforce rights
provided by the CC&Rs.
We focus on the substance of the claims asserted and the
relief sought, not the form of the complaint. (Rancho Mirage
Country Club Homeowners Assn. v. Hazelbaker, supra, 2
Cal.App.5th at pp. 258–260 [although framed as an action to
enforce a settlement agreement, reviewing court focused on
“gravamen” of the complaint, “nature of the dispute between the
parties,” and “nature of the relief sought” to determine action was
to enforce CC&Rs]; Kaplan v. Fairway Oaks Homeowners Assn.,
supra, 98 Cal.App.4th at pp. 719–720 [prevailing homeowners’
association was entitled to fees under section 5975’s statutory
predecessor—despite plaintiffs’ allegations regarding a breach of
the Corporations Code—because “gist of the action” was to
enforce proxy and cumulative voting rights under association’s
bylaws].)
In his constructive fraud and breach of fiduciary duty
causes of action—alleged against the Association alone and not
15
any individual member—Shek Lim does not identify any
purportedly breached duty or promise independent of the CC&Rs.
Instead, he repeatedly refers to the CC&Rs and alleges, in both
the background facts and each cause of action, that the
Association failed to fulfill its “affirmative duty to enforce the
provisions of CC&Rs”—pointing specifically to the CC&Rs’
provisions, in articles seven and eight, regarding maintenance of
the common area and the Association’s failure to fulfill or disclose
that obligation.
True, fiduciary duties are generally created by statute or
common law. (See Frances T. v. Village Green Owners Assn.
(1986) 42 Cal.3d 490, 513 [“fiduciary relationship is governed by
the statutory standard that requires directors to exercise due
care and undivided loyalty for the interests of the corporation”].)
But “[t]he duties and powers of a homeowners association are
controlled both by statute and by the association’s governing
documents. The primary governing document of the association
is the declaration. ” (Ostayan v. Nordhoff Townhomes
Homeowners Assn., Inc., supra, 110 Cal.App.4th at p. 127.)
Shek Lim’s theory on constructive fraud is that the
Association bore a fiduciary duty to accurately disclose to him the
maintenance responsibilities as provided in the CC&Rs. (See
§ 1573; Salahutdin v. Valley of California, Inc. (1994) 24
Cal.App.4th 555, 562 [“ ‘[c]onstructive fraud is a unique species of
fraud applicable only to a fiduciary or confidential
relationship’ ”].) And, in his briefs on appeal and in his operative
complaint, Shek Lim asserts that the Association’s fiduciary
duties arose because of the relationship created by the CC&Rs.
(See Treo @ Kettner Homeowners Assn. v. Superior Court (2008)
166 Cal.App.4th 1055, 1062 [“[a] common interest development is
created with the recording of the declaration and other required
documents”].)
16
In fact, even in Shik Lem’s Unruh Act cause of action—
which is in part explicitly premised on a statutory duty (§ 51)
placed on businesses to not unreasonably discriminate on the
basis of race or other personal characteristics (Howe v. Bank of
America N.A. (2009) 179 Cal.App.4th 1443, 1450; Pizarro v.
Lamb’s Players Theatre (2006) 135 Cal.App.4th 1171, 1174)—
Shek Lim incorporates the previous allegations and specifically
alleges, “Article 7 and Article 8 of the CC&Rs state that the
directors and officers are to conduct the business of the
[Association], and are solely responsible for maintaining the
common area,” which was “perversely” and “unequal[ly]” imposed
on Shek Lim. Although section 51 provides the statutory basis
for demanding equal accommodation, the CC&Rs provide the
basis for Shik Lem’s claim that imposing garbage duties on him
was unfair.2
As the Association correctly puts it, the gravamen or
essence of all three causes of action is that “the [Association]
committed constructive fraud, breached its duty of undivided
loyalty, and violated the Unruh Civil Rights Act by
misrepresenting the meaning of the CC&R’s and failing to
explain that under the CC&R’s, Shek Lim was no longer
obligated to take the [Association]’s garage bin to the curb each
week.” Shek Lim sought to enforce his rights under the CC&Rs.
Because the Association is entitled to its attorney fees
pursuant to the fee shifting statute (§ 5975, subd. (c)), we need
not consider the trial court’s alternative contractual basis for the
award (see § 1717). With respect to his conclusory challenge to
the amount of the award, Shek Lim has forfeited any contention
of error by failing to support it with reasoned argument or
2 Even if the gist of the Unruh claim is not to enforce rights
provided by the CC&Rs, Shek Lim forfeits any argument that the
trial court abused its discretion by failing to apportion the
Association’s fees.
17
citation to legal authority. (See People v. Stanley (1995) 10
Cal.4th 764, 793; WFG National Title Ins. Co. v. Wells Fargo
Bank, N.A. (2020) 51 Cal.App.5th 881, 894.)
DISPOSITION
The judgment and order awarding attorney fees are
affirmed. The Association is entitled to its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
BURNS, J.
WE CONCUR.
JACKSON, P. J.
CHOU, J.
A172169/A173220 / Yu v. 2908 Deakin St
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