Mariani v. Harbor Pointe Owners’ Assn.





















Filed 1/24/13
Mariani v. Harbor Pointe Owners’ Assn. CA1/4

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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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
FOUR




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RODNEY A. MARIANI, Plaintiff and Appellant, v. HARBOR POINTE OWNERS’ ASSOCIATION, Defendant and Respondent.

A130360 (Alameda County Super. Ct. No. RG 09463454)

A
homeowner in a common interest development sued the homeowners association for href="http://www.fearnotlaw.com/">declaratory relief, seeking a
determination that any amendments to the development’s covenants, conditions,
and restrictions (CC&Rs) that “deprive owners of significant property
rights, especially when such amendment operates retroactively to terminate a
vested right” requires prior consent of the owner. The trial court granted summary judgment to
the defendant homeowners association upon concluding that the challenged
amendment was passed by a supermajority of the homeowners, thus obviating the
need for individual owner consent. The
trial court thereafter awarded attorney fees and costs to the homeowners
association. We affirm.

I.
BACKGROUND

Plaintiff
Rodney A. Mariani is an attorney and represents himself in these
proceedings. In 1982, plaintiff
purchased a unit in Harbor Pointe Vista (Harbor Pointe). Harbor Pointe is a 47-unit planned
development located in Alameda. The
Harbor Pointe Owners’ Association (Association) is a nonprofit mutual benefit
corporation, which was formed to manage the community of homeowners at Harbor
Pointe. The Association’s CC&Rs were
recorded in 1980 and were amended in 1981 and then again in 1998. The 1998 amendment transferred responsibility
for exterior maintenance of the residences from the individual owners to the
Association.

In
2008, the homeowners voted on and passed an amendment to the CC&Rs, which
transferred responsibility for exterior maintenance of the residences back to
the individual owners. The 2008
amendment was approved by 34 of the 42 homeowners who voted; plaintiff did not
participate in the vote.

Plaintiff
sued the Association in July 2009.
Plaintiff seeks “a judicial determination that consent is required of an
owner for amendments that deprive owners of significant property rights,
especially when such amendment operates retroactively to terminate a vested
right.” Plaintiff alleged that a
judicial declaration of his rights and duties is “necessary and
appropriate . . . because [he] is confronted with significant
maintenance that was, prior to [the 2008 amendment], the responsibility of
defendant.”

Defendant
Association moved for summary judgment in June 2010. Defendant presented several grounds for the
motion, including that the 2008 amendment was passed by a supermajority of the
owners, and that it was binding on each owner, including plaintiff,
irrespective of whether plaintiff consented or voted in favor of the amendment. Plaintiff opposed the motion, arguing his
consent was required and claiming that defendant was obligated to perform
certain unstated maintenance on his unit pursuant to the 1998 amended
CC&Rs. Along with his opposition,
plaintiff filed a motion to exclude the declaration of the secretary of the
defendant’s board of directors.

At
the September 2010 summary judgment hearing, plaintiff requested a continuance
and leave to amend the complaint if the court believed the complaint was
unclear regarding the alleged outstanding maintenance on his unit. The trial court denied the request for
continuance. In granting summary
judgment, the trial court found that “the undisputed material facts establish
that pursuant to the 2008 amendment of the CC&Rs, which was regularly and
legally passed by 34 of 47 homeowners, . . . Plaintiff is
responsible for the exterior maintenance of his residence.” The trial court further found that plaintiff
failed to submit any admissible evidence to support his claims regarding the
alleged outstanding maintenance.
Finally, the trial court determined that plaintiff’s evidentiary
objection failed to comply with California Rules of Court, rule 3.1354, by
failing to set forth or quote the objectionable statement and by failing to
submit a proposed order. Moreover, to
the extent plaintiff did comply with the rules of court, the trial court
overruled the objection.

Thereafter,
defendant filed a motion for attorney fees as the prevailing party in an action
to enforce the governing documents of a common interest development. (Civ. Code, § 1354, subd. (c).) Plaintiff opposed the motion, claiming that
his complaint was not an action to enforce the governing documents. The trial court granted the motion, awarding
defendant $36,151 in attorney fees and costs.

Plaintiff
appeals from the judgment and the order awarding attorney fees.

II.
DISCUSSION

On
appeal, plaintiff argues that the trial court erred in granting summary
judgment because there was a triable
issue of fact regarding whether, at the time of the 2008 amendment, there
was accrued or in-progress maintenance.
Plaintiff also claims the trial court erred in denying his request for a
continuance to amend the complaint denying his evidentiary objection and awarding
attorney fees to defendant.

A. Standards of Review

A
motion for summary judgment “shall be granted if all the papers submitted show
that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) href="#_ftn1"
name="_ftnref1" title="">[1] We review the record de novo to determine
whether triable issues of material fact exist and whether defendant was
entitled to judgment as a matter of law.
(Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th
1138, 1142.)

With respect to the trial court’s
rulings on evidentiary objections, the standard of review is abuse of
discretion. (Miranda v. Bomel
Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335; accord DiCola
v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666,
679.) The trial court’s ruling on
plaintiff’s request for a continuance is also reviewed for abuse of
discretion. (Ace American Ins. Co. v.
Walker (2004) 121 Cal.App.4th 1017, 1023, 1025.)

Orders denying or granting an award
of attorney fees are also generally reviewed using an abuse of discretion
standard of review. (Ramos v.
Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615.) But a “determination of whether the criteria
for an award of attorney fees and costs have been met is a question of
law.” (Id. at p. 621.)

B. Plaintiff Failed to Raise a Triable
Issue of Material Fact

“Any party may move for summary
judgment in any action or proceeding if it is contended that the action has no
merit.” (§ 437c, subd. (a).) A defendant is entitled to summary judgment
if he meets his burden to present evidence negating an essential element of the
plaintiff’s cause of action. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; see also Guz
v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) Applying the aforementioned standard of
review, we independently determine whether no material factual issue exists,
and the moving party is entitled to judgment as a matter of law. (Intel Corp. v. Hamidi (2003) 30
Cal.4th 1342, 1348.)

Preliminarily, as he admitted in the
trial court, plaintiff concedes on appeal that he is bound by the 2008
amendment.href="#_ftn2" name="_ftnref2" title="">[2] The gravamen of plaintiff’s complaint is that
the 2008 amendment did not terminate defendant’s “duty to perform maintenance
that was in progress before the enactment of the amendment.” Plaintiff argues that the trial court
erroneously granted summary judgment because there was a triable issue of fact
arising out of defendant’s obligation to perform such accrued or in-progress
maintenance. Plaintiff, however, failed
to offer any admissible evidence that defendant failed to perform any such
required maintenance. Indeed, in his opposing
declaration, plaintiff averred that “[f]rom 1982 to 2008 the Association, with
the exception of roof, decks, and window glass [which were the responsibility
of the homeowners under the 1998 CC&Rs], maintained the exterior of the
dwellings.”

Moreover, plaintiff failed to
identify the specific maintenance work that defendant was allegedly obligated
to perform, but did not. Nevertheless,
plaintiff appears to suggest, for the first time on appeal, that defendant
failed to complete a so-called “ ‘shingle project’ ” that was in progress
at the time of the 2008 amendment. To
the extent plaintiff mentioned the “ ‘shingle project’ ” below, it
was in the context of challenging the soundness of the board’s decision to
replace all of the siding on the units irrespective of need. As our Supreme Court explains, however, in >Lamden v. La Jolla Shores Clubdominium
Homeowners Assn. (1999) 21 Cal.4th 249, a homeowners association
decision made in good faith regarding ordinary maintenance is entitled to
judicial deference. (>Id. at p. 253.) The rule of judicial deference applies in the
instant case, as there is nothing in the record even remotely suggesting that
defendant acted without good faith in its decisions regarding the
“ ‘shingle project.’ ”

In sum, the trial court properly
granted summary judgment, as there are no triable issues of material fact that
could support plaintiff’s so-called “retroactivity” claim that defendant failed
to perform its maintenance obligations that had accrued or were otherwise in
progress at the time of the 2008 amendment.

C. The Trial Court Properly Denied the Request
for a Continuance

“Section 437c subdivision (h)
provides: ‘If it appears from the
affidavits submitted in opposition to a motion for summary judgment or summary
adjudication or both that facts essential to justify opposition may exist but
cannot, for reasons stated, then be presented, the court shall deny the motion,
or order a continuance to permit affidavits to be obtained or discovery to be
had or may make any other order as may be just.’ Subdivision (h) was added to section 437c
‘ “[t]o mitigate summary judgment’s harshness,” . . .
[citations]’ [citation] ‘for an opposing party who has not had an opportunity
to marshal the evidence[.]’
[Citation.] The statute mandates
a continuance of a summary judgment hearing upon a good faith showing by affidavit
that additional time is needed to obtain facts essential to justify opposition
to the motion. [Citations.] Continuance of a summary judgment hearing is
not mandatory, however, when no affidavit is submitted or when the submitted
affidavit fails to make the necessary showing under section 437c, subdivision
(h). [Citations.] Thus, in the absence of an affidavit that
requires a continuance under section 437c, subdivision (h), we review the trial
court’s denial of appellant’s request for a continuance for abuse of
discretion.
[Citation.] [¶] . . . [¶] A declaration in support of a request for
continuance under section 437c, subdivision (h) must show: ‘(1) the facts to be obtained are essential
to opposing the motion; (2) there is reason to believe such facts may
exist; and (3) the reasons why additional time is needed to obtain these
facts. [Citations.]’ [Citation.]
‘ “The purpose of the affidavit required by . . .
section 437c, subdivision (h) is to inform the court of outstanding discovery which
is necessary to resist the summary judgment motion. [Citations.]” ’ [Citation.] ‘It is not sufficient under the statute
merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the
party moving for a continuance show “facts essential to justify opposition may
exist.” ’ [Citation.]” (Cooksey v. Alexakis (2004) 123
Cal.App.4th 246, 253-254.)

Here, plaintiff did not make a
written motion or proffer any declaration, written or otherwise, demonstrating
that he needed additional time to oppose the motion for summary judgment. Rather, at the summary judgment hearing,
plaintiff submitted on his papers, stating “everything I’ve said in my
complaint and [in] the opposition is consistent, and that the main issue and
thrust of the complaint is that the Court needs to make a determination of the
rights and duties with respect to the maintenance that remains
unperformed . . . .”
“If the court feels that the
facts that I’ve alleged in the complaint maybe are not as clear as they should
be, then . . . I would
simply ask that the Court continue this matter, [and] allow me to amend the
complaint . . . .”
(Italics added.)

Plaintiff’s conditional request to
amend his complaint clearly does not comport with the statutory prerequisites
for continuing a summary judgment hearing.
Accordingly, the trial court did not abuse its discretion in denying
plaintiff’s request.

D. The Trial Court Did Not Err in its
Evidentiary Ruling

A party
challenging evidentiary rulings made in the course of a summary judgment motion
has two burdens on appeal: the party
must affirmatively show error in the rulings and the party must establish
prejudice. (Truong v. Glasser
(2009) 181 Cal.App.4th 102, 119.)
“A ruling that resulted in no discernible prejudice cannot, of course,
be characterized as a miscarriage of justice.”
(Cristler v. Express Messenger Systems, Inc. (2009) 171
Cal.App.4th 72, 81.)

In the instant case, plaintiff
sought to exclude the secretary’s declaration on hearsay grounds. The trial court ruled that plaintiff’s
evidentiary objection to the challenged evidence failed to comply with the
applicable rules of court (see Cal. Rules of Court, rule 3.1354) by failing to
delineate the substance of the objectionable statement. Plaintiff concedes that he did not comply with
the rules of court, but maintains that the challenged evidence “was set forth
in the body of the motion.” Plaintiff
argues that the trial court put form over substance by overruling his hearsay
objection on purely procedural grounds.

Even assuming arguendo that the
trial court erred in overruling plaintiff’s objection, to establish reversible
error, he must also establish prejudice.
This he did not do. A miscarriage
of justice will be found only when a reviewing court, after examining the
entire case, including the evidence, is of the opinion that “it is reasonably
probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (>Cassim v. Allstate Ins. Co. (2004) 33
Cal.4th 780, 800.) To establish
prejudicial error, a party must do more than just point to the alleged
error. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th
814, 830.) Rather, a party must support
his or her claims of error by cogent legal analysis. (Ibid.) It is not up to this court to “act as counsel
for appellant by furnishing legal argument
as to how the trial court’s ruling was prejudicial.” (Century
Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) Accordingly, when an appellant asserts a
point but fails to support it with reasoned argument and legal authority, the
court may treat it as waived and pass it without consideration. (People v. Stanley (1995) 10 Cal.4th
764, 793; EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 775 [issue
deemed waived where appellant failed to support claim with argument,
discussion, analysis, or citation to the record]; Stoll v. Shuff (1994)
22 Cal.App.4th 22, 25, fn. 1 [error not discussed in body of opening brief
waived as there is no serious effort to raise issue on appeal].)

In the instant case, plaintiff does
not even attempt to demonstrate prejudicial error. Accordingly, he has forfeited any claim on
this issue.

E. The Trial Court Properly Awarded
Attorney Fees to Defendant

Civil Code section
1354, subdivision (c) provides that “[i]n an action to enforce the governing
documents, the prevailing party shall be awarded reasonable attorney’s fees and
costs.” Under this section, the award to
defendants as the prevailing party in an action seeking a determination of the
parties’ rights and obligations under the CC&Rs was proper. (Kaplan v. Fairway Oaks Homeowners Assn.
(2002) 98 Cal.App.4th 715, 720–721.)

Plaintiff
contends the trial court abused its discretion in awarding attorney fees and
costs to defendant because the complaint was not an action to enforce the
governing documents. Rather, he says,
the complaint sought to enforce the 1998 CC&Rs, which were “ ‘promises
unrelated to the governing documents . . . .’ ” We do not accept this argument. The declaratory relief plaintiff sought was
with respect to the rights and duties relative to the 2008 amendment vis-à-vis
the 1998 CC&Rs. The requested relief
unquestionably sought a determination of the parties’ rights and obligations >under the CC&Rs.

Salawy v. Ocean Towers Housing Corp.
(2004) 121 Cal.App.4th 664, relied upon by plaintiff, does not compel a
contrary conclusion. “There, unit owners
in a cooperative apartment building sued the cooperative corporation for breach
of a promise to reimburse them for costs incurred in temporarily relocating,
while repairs were made following an earthquake. The cooperative corporation successfully
demurred based on provisions in its bylaws.
It then requested attorney fees under a statute that awards fees to the
prevailing party in ‘an action to enforce the governing documents’ (Civ. Code,
§ 354, subd. (c)), which are those documents that govern the operation of
a condominium, among others. (Civ. Code, § 1351, subds. (c), (j).) The court held fees were not recoverable
because the action was based on a breach of promise, not the governing
documents. (Salawy, supra, at p. 671.)”
(Farber v. Bay Terrace Homeowners
Assn. (2006) 141 Cal.App.4th 1007, 1012.)
Here, the essence of plaintiff’s claim is that the 2008 amendment could
not retroactively terminate defendant’s obligation to perform maintenance
existing at the time of the amendment.
There is no independent promise here, only an obligation he finds in the
CC&Rs. That is an action to
enforce the CC&Rs, whether framed in terms of plaintiff’s rights under the
1998 CC&Rs or the 2008 amendment.

Accordingly, plaintiff has failed to
show that the trial court improperly awarded fees and costs to defendant.

III.
DISPOSITION

The
judgment and order granting attorney fees to defendant are both affirmed. Defendant is entitled to its href="http://www.fearnotlaw.com/">costs on appeal.







_________________________

RIVERA,
J.





We concur:





_________________________

RUVOLO, P.J.





_________________________

REARDON, J.