Nguyen v. Summergreen HOA
Filed 1/16/13 Nguyen v.
Summergreen HOA CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
DIEM T. NGUYEN,
Plaintiff and Appellant,
v.
SUMMERGREEN HOMEOWNERS ASSOCIATION et
al.,
Defendants and Respondents.
G046445
(Super. Ct. No. 07CC00188 )
O P I N I O N
DIEM T. NGUYEN
Plaintiff,
v.
HOANG HUY
NGUYEN et al.,
Defendants.
(Super. Ct. No. 05CC08432)
Appeal
from a judgment of the Superior Court of
Robert J. Moss, Judge. Affirmed.
Diem
Trang Nguyen, in pro. per., for Plaintiff and Appellant.
Soltman,
Levitt, Flaherty & Wattles, Stephen D. Flaherty and Steven S. Nimoy for
Defendants and Respondents.
Plaintiff Diem T. Nguyen, a disgruntled condominium resident, sued
defendants (a homeowners’ association, its board of directors, and a property
management firm) for allegedly failing to maintain the complex’s common
areas. Plaintiff appeals a judgment of
dismissal entered after the trial court granted defendants’
summary judgment that plaintiff no longer owned a condominium within the
association as of 2010 and she therefore lacked standing to seek declaratory
relief with regard to maintenance of the common areas. Moreover, defendants established that
plaintiff had not suffered monetary
damages as a result of defendants’ alleged failure to maintain common
areas. We affirm.
FACTS
In January 2007, plaintiff filed a complaint for
negligence, violation of Civil Code section 1364, declaratory relief and an
accounting against defendants Summergreen Homeowners Association (Summergreen),
Amber Property Management (Amber), Bill Hencke, Olga Marquez, Victor Enciso,
Richard Leynes, and Libertad Torrico.
The latter five defendants were directors of Summergreen and shall be
referred to as the Director Defendants.
The gravamen of the complaint was that defendants failed to maintain the
common areas of the complex. In particular,
defendants did not adequately address pipe problems and termite infestations. Plaintiff alleged she was an owner of a
condominium unit and was a member in good standing with Summergreen. Plaintiff sought damages, declaratory relief,
and an accounting.
Defendants filed a motion for summary judgment in June 2011. Plaintiff did not file any opposition papers.
Defendants submitted a copy of the declaration of covenants,
conditions, and restrictions (CC&R’s) for Summergreen. The CC&R’s define “‘Common Areas’†to
“mean all areas on the Project, except the Units. Common Areas shall include, without
limitation, for maintenance purposes of the Association, but not necessarily by
way of fee title, all gas, water and waste pipes, all sewers, all ducts,
chutes, conduits, wires and other utility installations of the Project
Improvements wherever located . . . , the land upon which the Project
Improvements are located and the airspace above the Project Improvements, all
bearing walls, columns, unfinished floors, the roofs, foundation slabs, party
walls, utility walls, foundations, private streets or driveways, walkways,
security gate, common stairways, parking areas and landscaping on those areas
of the Project which are not defined as a part of the Units.†The CC&R’s define “‘Unit’†to mean, in
relevant part, “the elements of a Condominium not owned in common with the
Owners of other Condominiums in the Project. . . . Each such Unit consists of a living area or
spaces . . . bounded by and contained within the interior unfinished (meaning
exclusive of wall coverings, floor coverings, fixtures or decorations) surfaces
of the perimeter walls, floors, ceilings, windows, and doors . . . .†As defendants note in their brief, the only
separate property owned by condominium owners like plaintiff was the “‘air
space’†within the individual unit and not any portion of the structure of the
building. (See Del Mar Beach Club Owners Assn. v. Imperial Contracting Co. (1981)
123 Cal.App.3d 898, 906.)
The CC&R’s define “‘Common Expenses’†to “mean those expenses
for which the Association is responsible under this Declaration, including the
actual and estimated costs of:
maintenance, management, operation, repair and replacement of the Common
Property . . . .†“‘Common Property’†is
defined to include “Common Areas.†As to
maintenance and repair of “Common Areas,†the CC&R’s state “the Association
shall paint, maintain, repair and replace the Common Property and Improvements
thereon or shall contract for such . . . to assure maintenance of the Common
Property and Improvements thereon in a clean, sanitary and attractive
condition, reasonably consistent with the level of maintenance reflected in the
most current Budget on file with and approved by the California Department of
Real Estate . . . .
Association maintenance, repairs and Improvements shall include . . . if
determined by the Board to be economically feasible, a monthly inspection and
preventative program for the prevention and eradication of infestation by
wood-destroying and other pests and organisms in the Property.â€
Defendants’ separate statement of undisputed facts established that
plaintiff was no longer the owner of a condominium at Summergreen. A notice of trustee’s sale of the condominium
had been recorded, which indicated plaintiff’s interest in the property was
extinguished. Defendants’ separate
statement also established (by citing to an attached transcript of plaintiff’s
deposition) that plaintiff’s alleged “damages†were based on plaintiff
observing termites in the building and an alleged failure of defendants to fix
this problem; plaintiff could not identify any damage to her living space or
personal property, or any expenditures she had made as a result of an alleged
failure to maintain common areas.
Defendants argued plaintiff was no longer an owner of a separate
interest in Summergreen and therefore lacked standing to bring a lawsuit based
on her allegations that defendants failed to maintain the common areas of
Summergreen. (See Civ. Code,
§ 1354.) Defendants also argued
plaintiff failed to comply with Code of Civil Procedure section 425.15, which
provides procedural protections for volunteer directors of nonprofit
corporations. Defendants’ separate
statement of undisputed facts established that Summergreen is a nonprofit
corporation and the Director Defendants serve as volunteers without
compensation.
The court granted defendants’ motion for summary judgment. “Moving parties have met their burden and by
failing to file an opposition, plaintiff has failed to establish a triable
issue of fact.â€
DISCUSSION
Plaintiff’s briefs are not a model of clarity, but, charitably
construed, plaintiff contends (1) plaintiff is engaged in other litigation
against various parties in connection with the foreclosure on her interest in
the condominium, and thus she still potentially retains an ownership interest
in Summergreen; (2) plaintiff has standing to recover damages for the period of
time during which she owned a condominium at Summergreen, even if she currently
lacks standing to pursue declaratory relief with regard to the enforcement of
Summergreen’s CC&R’s; and (3) Code of Civil Procedure section 425.15
applies only to negligence causes of action and does not affect her other
causes of action against the Director Defendants.
“We review a grant of summary judgment de novo. [Citation.]
We assume the role of the trial court and redetermine the merits of the
motion.†(Calemine v. Samuelson (2009) 171 Cal.App.4th 153,
160-161.) A court cannot grant summary
judgment based purely on the lack of opposition papers; the moving party must
meet its “initial burden of proof.†(
Cal.App.4th 1081, 1085-1086.)
“The motion for summary judgment shall be granted if all the papers
submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.†(Code Civ. Proc., § 437c, subd.
(c).) A cause of action has no merit if
“[o]ne or more of the elements of the cause of action cannot be separately
established . . . .†(Code Civ. Proc.,
§ 437c, subd. (o)(1).) “A defendant
. . . has met his or her burden of showing that a cause of action has no merit
if that party has shown that one or more elements of the cause of action . . .
cannot be established . . . . Once the
defendant . . . has met that burden, the burden shifts to the plaintiff . . .
to show that a triable issue of one or more material facts exists as to that
cause of action . . . . The plaintiff .
. . may not rely upon the mere allegations or denials of its pleadings to show
that a triable issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists as to that
cause of action . . . .†(Code Civ.
Proc., § 437c, subd. (p)(2).)
Claims Based on Improper Common Area Maintenance
“Unless otherwise provided in the declaration of a common interest
development, the association is responsible for repairing, replacing, or
maintaining the common areas, other than exclusive use common areas, and the
owner of each separate interest is responsible for maintaining that separate
interest and any exclusive use common area appurtenant to that separate
interest.†(Civ. Code, § 1364,
subd. (a).) This statutory default
setting is consistent with the Summergreen CC&R’s. It is clear Summergreen had the duty to
maintain common areas.
“Under well-accepted
principles of condominium law, a homeowner can sue the association for damages
and an injunction to compel the association to enforce the provisions of the
declaration.†(Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246.) This rule applies to an association’s (and
its agents’) failure to maintain common areas.
(See Lamden v. La Jolla Shores
Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 252-253, 255 [in
context of owner seeking injunctive relief regarding termite infestation
maintenance, establishes rule of deference owed to association for good faith
maintenance decisions made by board of directors]; Affan v. Portofino Cove Homeowners Assn. (2010) 189 Cal.App.4th 930,
932-933, 935-936 [claim for damages by homeowners against association and
property management company for common area plumbing issues that resulted in
sewage overflow into separate property of plaintiffs]; see also
828-831 [tort damages also available to homeowners for injuries suffered on
improperly maintained common areas].)
Thus, it is clear that if plaintiff still owned her condominium, she
could (generally speaking) sue Summergreen for both damages and to compel
Summergreen to fulfill its duty to enforce the CC&R’s.
The trial court correctly concluded defendants met their initial
burden to show plaintiff no longer had an ownership interest in the condominium
in which she resided. Thus, plaintiff no
longer has the right under Civil Code section 1354 to sue to enforce the
Summergreen CC&R’s. (
173 Cal.App.4th 1024, 1036-1038 [non-owner residents do not have standing
to enforce CC&R’s, even if owner purports to assign right to them to do
so].) Plaintiff’s effort on appeal to
claim otherwise is unavailing, as her claim is dependent on the dubious
proposition that she still has standing because other lawsuits she has filed
might vindicate her continued ownership interest in the condominium. Even assuming the plausibility of her
argument, plaintiff was obligated to bring this evidence forward in an
opposition to defendants’ motion for summary judgment at the trial court level.
The trial court also correctly concluded defendants met their
initial burden of showing plaintiff did not have cognizable damages, an element
of her remaining causes of action. One
cannot glean from the complaint the precise basis for a damages claim. Plaintiff alleged she was damaged “in having
to make [her] own repairs or having to live with dangerous conditions . . .
.†She also alleged in her complaint (in
2007) that “[i]f the repairs are not made, the damages could increase
substantially.†The complaint did not
allege diminution in value of plaintiff’s condominium. Plaintiff is correct that her loss of
ownership did not preclude her from suing for damages incurred while she was an
owner of her condominium. (See
223 Cal.App.3d 144, 146.) But defendants
met their initial burden in their summary judgment motion by showing they had
extracted admissions by plaintiff indicating she lacked any cognizable
damages. Basically, plaintiff saw some
termites and thought there was a problem that was not being addressed by
Summergreen, its board of directors, and its property manager. Plaintiff had not spent any money to address
the termite issue. Plaintiff could not
identify any damage to her separate property.
Plaintiff did not identify any other monetary harm. Despite including claims for damages in the
complaint, plaintiff had no answer at her deposition to requests for her to
specify her actual damages. This is not
a case in which actual damage was inflicted upon plaintiff’s person or property
as a result of a failure to maintain common areas.
Because the court correctly granted summary judgment for lack of
standing to bring a claim for declaratory relief and lack of cognizable
damages, we need not address the parties’ contentions with regard to Code of
Civil Procedure section 425.15.
DISPOSITION
The judgment is affirmed.
Plaintiff’s request for judicial notice of documents not presented to
the trial court is denied. Defendants
shall recover costs incurred on appeal.
IKOLA,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
THOMPSON, J.
requests we take judicial notice of documents she asserts will show Summergreen
was a suspended corporation as of April 6, 2007, and therefore lacked the
capacity to defend this action. (See
Rev. & Tax Code, § 23301.) But
plaintiff acknowledges in her reply brief that Summergreen applied for and was
granted a revivor on September 17, 2011.
(See Rev. & Tax Code, § 23305.)
“Our Supreme Court has held that the revival of corporate powers during
the course of litigation validates earlier acts occurring prior to judgment, as
well as matters occurring postjudgment.â€
(Center for Self-Improvement &
Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543,
1553.) “Subsequent corporate revivor
retroactively validates actions in the course of litigation such as†“making
and opposing of motions and engaging in
discovery . . . .†(
“[T]he revival of corporate powers enables the previously suspended
party to proceed with the prosecution or defense of the action and validates a
judgment obtained during suspension.†(
“Corporate incapacity is nothing more than a legal disability, depriving
the party of the right to come into court and represent its own interest. As such, lack of capacity is not a
jurisdictional defect and is waived if not properly raised.†(Id.
at p. 1552.) Plaintiff did not raise the
alleged incapacity below. She may not do
so now. Moreover, plaintiff acknowledges
Summergreen’s corporate status has been revived, thereby validating all actions
taken during the course of litigation as well as the judgment. The request for judicial notice is denied.
