Kashani v. Rochman
Filed 2/21/13 Kashani v. Rochman CA2/4
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
SAIED KASHANI et al.,
Plaintiffs and
Appellants,
v.
DOREEN ROCHMAN et al.,
Defendants and
Appellants.
B226060 (c/w B231915)
(Los Angeles County
Super. Ct. No. BC347095)
DOREEN and JERRY ROCHMAN, as Trustees, etc.,
Plaintiffs,
v.
SAIED KASHANI et al.,
Defendants.
(Los Angeles County
Super. Ct. Nos. BC355861,
and BC347095)
APPEALS from a judgment and an order
of the Superior Court for
County, Gregory W. Alarcon,
Judge. Judgment in case No. B226060
affirmed; appeal in case No. B231915 dismissed.
Saied Kashani, in pro. per., for
Plaintiffs and Appellants.
Funsten & Franzen, Mark
Robertson and Don Erik Franzen for Defendants and Appellants.
The owners of an unimproved lot in the
Castellammare Mesa neighborhood of Pacific Palisades -- a neighborhood governed
by a Declaration of Restrictions and Conditions (the DRC), which is enforced by
a homeowners association (CMHO) and its architectural committee (the AC) --
sought the approval of plans for the construction of a home on the lot. The AC required the owners, Saied Kashani and
his wife, Sanaz Afsar (the Kashanis), to erect “story poles†on the lot to show
the outline of the proposed construction, so the AC could determine if the
proposed home would unreasonably interfere with the views from the home
directly to the east of the Kashanis’ lot.
That home is owned by Doreen and Jerry Rochman, as Trustees of the
Rochman Family Trust (the Trustees).
The Kashanis refused to erect the
story poles, in part because they claimed that doing so would require
significant construction due to the steep grade of the lot. Instead, the Kashanis filed a lawsuit against
CMHO, alleging claims for breach of contract, declaratory relief, and
promissory estoppel (Los Angeles Superior Court case No. BC347095). After the Trustees filed a separate action
against the Kashanis for declaratory and injunctive relief and/or damages (Los
Angeles Superior Court case No. BC355861), the Kashanis amended their complaint
to add as defendants the Trustees, as well as Doreen Rochman individually and
Harvey Rochman (we will refer to Doreen Rochman and Harvey Rochman by their
first names for ease of reference). The
claims against Doreen and Harvey, who is Doreen’s son and also owns property in
the Castellammare Mesa neighborhood, were based upon actions they allegedly
took as members of the board of directors of CMHO. The Kashanis’ lawsuit and the Trustees’
lawsuit were consolidated in the trial court.
This appeal involves only the claims
alleged against Doreen and Harvey, for breach of fiduciary duty and
negligence. The trial court entered
judgment in favor of Doreen and Harvey following their motion for summary
judgment/adjudication. The court found
there was no evidence that Doreen participated in any official board actions
related to the Kashanis or that she improperly influenced the AC, and therefore
she was entitled to judgment as a matter of law. Although the court found there was a triable
issue of material fact as to whether Harvey acted in violation of his fiduciary
duty or whether he was negligent, it granted summary adjudication of Doreen and
Harvey’s affirmative defense that they were entitled to immunity under the
U.S.C. §§ 14501 et seq.). The
Kashanis filed a notice of appeal from the summary judgment, and Harvey filed a cross-appeal from the trial
court’s finding of a triable issue of fact regarding his alleged negligence and
breach of fiduciary duty (case No. B226060).
In the meantime, Doreen and Harvey,
together with the Trustees (who had prevailed on all of the claims alleged
against them in the Kashanis’ lawsuit), moved for attorney fees. The trial court denied their motion without
prejudice, finding that the motion should be addressed after the Trustees’
claims against the Kashanis are resolved.
The Trustees, Doreen, and Harvey filed a notice of appeal from the order
denying their motion (case No. B231915).
We granted their motion to consolidate the appeals.
We affirm the summary judgment,
although we do so on the ground that the Kashanis failed to raise a triable
issue of material fact to show that Harvey and Doreen breached their fiduciary
duty or were negligent as alleged in the complaint, causing damage to the
Kashanis. We dismiss the appeal from the
order denying the motion for attorney fees on the ground that it is not an
appealable order.
BACKGROUND
The Kashanis own the unimproved lot
located at 17642 Tramonto Drive in the Pacific Palisades area of Los Angeles, upon which they want to build a
residence. The property is subject to
the DRC of the homeowners association, CMHO.
Under the DRC, the AC, whose members are appointed by the board of
directors of CMHO, is required to review, pass upon, approve, or reject any
plans or specifications for proposed construction on property subject to the
DRC.
The DRC empowers the AC to reject
plans for new buildings or alterations to existing buildings when the proposed
height would cause unreasonable interference with views from other lots. It also provides that, “[i]n determining the
location on the lot of each new dwelling or addition to an existing dwelling,
reasonable effort shall be exercised to avoid obstruction of views from other
lots.†The DRC requires that, if any
member of the AC believes some aspect of the proposed plans may be objectionable
to adjacent property owners, the AC must invite those property owners to a
meeting of the AC to allow them to voice any objections they have, and the AC
must “give full consideration†to those objections. The AC must give “[p]articular attention . .
. to the extent that views from adjacent homes are obstructed by the proposed
construction.â€
A. Events
Leading Up To The Kashanis’ Lawsuit
In May 2005, the Kashanis submitted to
the AC plans and specifications for the house they sought to build on their
lot. The plans called for a roof height
of nine feet above the street level (the house would then extend down the slope
of the lot for a total of three stories), but there was an elevator tower that
would extend eight feet above the roofline.
The AC reviewed the plans, and wrote a letter to Mr. Kashani, stating
that the Committee did not want to deviate above the maximum height of 14 feet,
and would rather that the height of the house be increased than allow the
elevator tower. Copies of the letter were
sent to the owners of the homes on either side of the Kashanis’ lot, including
the Trustees.
In June 2005, the Kashanis submitted
new plans that were identical to the May 2005 plans, except that the roof
height was increased to 14 feet above street level and the elevator tower was
removed. Because the revised plans
called for an increase in the total height of the structure from 45 feet to 50
feet, the Kashanis would need to get a variance from the Los Angeles Department
of Building and Safety. They asked
Andrew Martin, a member of the AC,
name="_ftnref2" title="">[2]
if the AC would write a letter stating that CMHO did not oppose such a
variance. The AC ultimately determined
that it would not write such a letter because variances were not within the
jurisdiction of the AC, and the AC did not want to establish such a precedent.
At some point after the Kashanis
submitted the June 2005 plans, Martin told Mr. Kashani that his neighbors, the
Trustees, had some concerns about the proposed plans. The Trustees had lived in the Castellammare
Mesa neighborhood, on the property directly to the east of the Kashanis’ lot,
for more than 30 years. They had
remodeled their home in 2000 to take advantage of the views of the ocean (to
the south) and the Malibu coastline (to the west) from their property. The Trustees were concerned that the
Kashanis’ proposed house would block their views to the west. The Kashanis were asked to attend a meeting
with Martin to review the proposed plans with the Trustees at the Trustees’
house on August 13, 2005. At the
meeting, which was also attended by Harvey and the Trustees’ architect (who had
provided a drawing showing the view impairment), the Kashanis were asked to
erect a string line on the property to delineate the east side of their
proposed house. Although Mr. Kashani
objected to this request, saying that no such request had been made in his
earlier conversations with another member of the AC, he ultimately agreed to
erect a string line.
A few days later, Martin met with
another member of the AC, Johnston, who concurred that the Trustees’
architect’s drawing indicated there was an unreasonable view impairment, and
agreed that a string line was needed to determine the extent of the view
impairment. Three days later, Martin met
with a third member of the AC, Gerry Adler, at the Trustees’ home to discuss
the view impairment. Adler concurred
with Johnston’s position that no part of the west view from the Trustees’
living room should be blocked, and agreed that a string line (or at the very
least, a stake to identify the southeast corner of the Kashanis’ proposed
house) was needed to determine the view impairment. That same day, Martin telephoned the fourth
member of the AC, Sutton, who was out of town.
Sutton agreed that the AC should continue to require a string line or,
if the erection of a string line was impossible, a stake as proposed by Adler.
On September 18, 2005, AC chairman
Sutton wrote a letter to Mr. Kashani in response to a letter Mr. Kashani had
written to the AC (Mr. Kashani’s letter is not in the record). Sutton explained that he had been out of town
for two months, and had been working on the Kashanis’ plans with the neighbors
for the past few days. He told Mr.
Kashani that all of the neighbors had requested some sort of “mock up†of the
proposed building so they could determine the potential view impairment, and
that the AC was requiring this “mock up.â€
The Kashanis did not erect any “mock up†or string line.
On January 4, 2006, Mr. Kashani sent a
letter to Martin, complaining about the delay in approval of his plans, CMHO’s
failure to provide the letter to support his request for a height variance, and
the imposition of conditions that do not appear in the DRC. He demanded that CMHO (and/or the AC, which
he refers to as “the Art Juryâ€) either immediately approve his June 2005 plans
or, in the alternative, agree to alternative dispute resolution, in which event
the Kashanis will request approval of new plans with a smaller set back on the
sides.
B. The
Kashanis’ Lawsuit
On February 8, 2006, the Kashanis
filed the instant lawsuit against CMHO, alleging damages claims for breach of
contract and promissory estoppel, as well as claims for
failure to approve the June 2005 plans, its failure to approve the January 2006
plans, and its failure to provide the variance letter. The Trustees, Doreen, and Harvey were not
named as defendants at that time.
Five months later, on July 24, 2006,
the Trustees filed a separate lawsuit against the Kashanis for declaratory and
injunctive relief and/or damages. The
Trustees alleged that in July 2005, they told the AC and the Kashanis that the
Kashanis’ proposed house would block their view of the Malibu coast from their
office/study, kitchen, family room, and living room, and would obstruct the
entrance of light into their office/study, which the Trustees believed would
substantially reduce the value of their property. They asked that the planned construction be
abandoned and/or modified, but the Kashanis refused their request. The Trustees sought an order compelling the
Kashanis to refrain from building the house as planned, a declaration of their
rights against the Kashanis, and damages.
The trial court consolidated the Trustees’ lawsuit with the Kashanis’
lawsuit, on the Trustees’ motion.
The Kashanis amended their complaint
against CMHO in December 2006 to add the Trustees, Doreen, and Harvey as
defendants. The Kashanis alleged they
discovered that Doreen and Harvey were members of the CMHO board of directors
at all relevant times, and that Doreen and Harvey misused their position as
board members to block the Kashanis’ proposed construction; they alleged that
Doreen and Harvey acted negligently and in breach of their fiduciary duties. Specifically, the Kashanis alleged that
Doreen and Harvey refused to recuse themselves from relevant board meetings and
instead directed CMHO to (a) refuse to approve the Kashanis’ submitted plans;
(b) impose or continue to impose “frivolous new conditions . . . such as
erection of the frame or structure on the propertyâ€; (c) refuse mediation or
arbitration; and (d) refuse to entertain the Kashanis’ appeal to the
board. They also alleged that Doreen and
Harvey did not permit the board to vote on any issue affecting the Kashanis,
and that Doreen and Harvey negligently failed to investigate or consider
alternatives to the mock-up requirement, such as computer images or scale
models.
In April 2007, the parties stipulated
to bifurcate the trial on the Kashanis’ first amended complaint, and to conduct
a trial on the existence or validity of the DRC first. That trial was held, and on November 30,
2007, the trial court issued its statement of decision, finding that the DRC
was in full force and effect. A year and
a half later, the Kashanis filed a second amended complaint (the operative
complaint), which did not alter the causes of action alleged against Doreen and
Harvey.
1. Doreen
and Harvey Move for Summary Judgment/Adjudication
In November 2009, Doreen and Harvey
moved for summary judgment or summary adjudication. They argued they were entitled to summary
judgment because there was no evidence that they committed any of the acts
alleged in the complaint, or that they caused any damage to the Kashanis. In the alternative, Doreen and Harvey argued
they were entitled to judgment based upon various federal and state statutes
alleged as affirmative defenses -- including the Volunteer Protection Act of
1997 (42 U.S.C. § 14501 et seq.) -- which they contended precluded
liability for their conduct.
Doreen and Harvey each filed
declarations in support of their motion.
Doreen declared that she has been a member of the CMHO board of
directors since 2005, although as of September 22, 2006, she formally recused
herself from any participation in meetings of the board regarding matters
relating to the Kashani lawsuit. She
stated that the AC is responsible for approving or disapproving plans for
construction, that the AC operates independently from the board, that she has never
been a member of the AC, and that she did not direct or otherwise cause the AC
(or CMHO) to refuse to approve the Kashanis’ plans, or to impose or continue to
impose any conditions on the Kashanis.
She also stated that she did not direct or cause CMHO to refuse
mediation or arbitration, or to refuse to entertain any appeal made by the
Kashanis, and that she did not take charge of any CMHO board meeting or take
any action to prevent the board from voting on any issue affecting the
Kashanis. Doreen also declared that when
she and her husband submitted their plans to the AC for the 2000 remodel of
their home, the AC asked them to erect story poles so the AC could determine
the impact on the views of their neighbors; they complied with the request.
Harvey declared that he was first
elected to the CMHO board on February 9, 2006, after the Kashanis filed their
lawsuit, and he attended a board meeting a week later; the purpose of the
meeting was to discuss the Kashanis’ lawsuit.
He stated that, because he was a lawyer, he agreed to help tender the
Kashanis’ complaint to CMHO’s insurance carrier and to contact CMHO’s attorney
for help responding to the lawsuit pending the insurance carrier’s appointment
of counsel. He also forwarded to CMHO’s
attorney discovery subpoenas that had been directed to two board members, and
reported to the board about efforts to have counsel appointed by the insurance
company, as well as procedural issues related to responding to the
lawsuit. He participated in a board
discussion regarding the Kashanis’ allegation that the AC’s requirement that
they erect story poles was improper, and stated during that discussion that
this was a research issue, that the court would decide it in the lawsuit, and
that he believed the requirement was proper.
Like Doreen, he stated that the AC is responsible for approving or
disapproving plans for construction, that the AC operates independently from
the board, that he has never been a member of the AC, and that he did not
direct or otherwise cause the AC (or CMHO) to refuse to approve the Kashanis’
plans, or to impose or continue to impose any conditions on the Kashanis; in
fact, he noted that the AC requested the Kashanis to erect story poles before
he was elected to the board. Similarly,
he also stated that he did not direct or cause CMHO to refuse mediation or
arbitration, or to refuse to entertain any appeal made by the Kashanis, and
that he did not take charge of any CMHO board meeting or take any action to
prevent the board from voting on any issue affecting the Kashanis. He asserted that “[t]o the extent [he] was
‘in charge’ of anything, it was only to help the Board obtain defense counsel
and respond to the lawsuit filed by the Kashanis against the Board.†Finally, he stated that he formally recused
himself from further participation in board meetings regarding the Kashanis’
lawsuit or matters related to it as of September 22, 2006, and that he has
taken no action as a board member with respect to the Kashani case since his
recusal.
In addition to the above, Doreen and
Harvey presented evidence that they acted as volunteers in their capacity as
board members of CMHO, and that CMHO is a tax exempt “civic league,†which they
asserted establishes that the Volunteer Protection Act applies to immunize them
from the claims alleged against them.
2. The
Kashanis’ Opposition to Summary Judgment/Adjudication Motion
In opposing the summary
judgment/adjudication motion, the Kashanis submitted, among other things,
minutes of meetings of the CMHO board, as well as notes taken by board members
and/or members of the AC of meetings and conversations they had with other
board members and/or counsel for CMHO regarding the Kashanis’ lawsuit.
Doreen’s and Harvey’s alleged breach of fiduciary duty and negligence.
documents below.
Notes from the president of the board,
David Morena, about a meeting he had with Harvey on February 16, 2006 -- a
little more than a week after the Kashanis filed their original complaint --
indicate that Morena consulted Harvey for his legal opinion and advice
regarding the merits of the Kashanis’ lawsuit and what needed to be done to
respond to it. According to the notes,
the “[b]asic underlying legal issue†was whether the DRC gave CMHO the right to
use story poles and string lines to assess view obstruction; Harvey said this
was a research issue, and that he believed the research would confirm that the
board was within its rights to use story poles and string lines. The notes also indicate that Harvey discussed
procedural aspects of the litigation, insurance coverage, and defense
costs.
Minutes from a board meeting held a
week later indicate that Harvey contacted CMHO’s attorney (Murdock), provided
him with a copy of the complaint, and discussed it in depth, including the
“string line and view issue.†Murdock
recommended that CMHO tender the complaint to the insurance company, and Harvey
agreed to contact the insurer. Harvey
told the board that after the complaint is tendered, someone would meet with
the insurance company lawyer to decide CMHO’s defense. The minutes show that the board also
discussed what the AC should do about the Kashanis’ application now that a
complaint has been filed, and concluded that nothing needed to be done at that
time. During that discussion a question
was raised about Harvey’s involvement in the case and the possible conflict of
interest it presented. According to the
minutes, Harvey said that he did not think there was “a legal risk because the
Board has to have independent counsel (Murdock and the insurance co.),†and
because there is another attorney on the board, which “can dilute the
situation.†The final entry in the minutes
under the heading “Kashani Suit Against CMHO†states as follows: “Should a Board sub-committee or person be
assigned as ‘in charge’? Harvey agreed
to continue to ‘manage’ this project for now.â€
Minutes from an executive session of a
board meeting held on March 13, 2006, indicate that Harvey reported that he had
not gotten a response from the insurance company following his tender of the
complaint, and that he would write a letter to the company on CMHO’s behalf
stating that the company had a duty to defend.
The minutes also indicate there was a discussion regarding CMHO’s
responses to the Kashanis’ discovery requests and letters the Kashanis sent to
the AC. The minutes refer to the board’s
decision to have someone write a letter to the Kashanis with referrals to story
pole installers, and state that Harvey and the other attorney on the board
would review the AC’s “proposed procedures document†and determine who would
write that letter. Notes taken by Andrew
Martin at that meeting (which Martin attended as a representative of the AC) indicate
that, when asked about the Kashanis’ request for mediation, Harvey said that
nothing should be done before action by the insurance company.
All but one of the other references to
Harvey in the notes or minutes submitted by the Kashanis related to CMHO’s
attempts to respond to the Kashanis’ discovery requests. The final reference to Harvey is contained in
Morena’s notes from his April 3, 2006 meeting with the attorney appointed by
the insurance company to defend CMHO.
Those notes state that Harvey will provide certain documents to the
attorney in a day or so. Immediately
following that statement is the following cryptic notation: “Harvey’s two issues . . . 1) story poles 2)
variance issue.â€
In their memorandum in opposition to
the summary judgment/adjudication motion, the Kashanis argued that this
evidence, combined with the undisputed fact that CMHO board has the power to
appoint and remove members of the AC, establish, or create a reasonable
inference, that Harvey (and Doreen, who the Kashanis assert supported Harvey in
everything he did on the board) exercised undue influence over the actions of
CMHO. Thus, the Kashanis argued, they
raised a triable issue of fact as to their breach of fiduciary duty and
negligence claims. In addition, the Kashanis
argued that the Volunteer Protection Act did not apply to immunize Doreen and
Harvey because it protects only volunteers of a 501(c)(3) nonprofit or a
nonprofit public benefit organization, and CMHO is not a 501(c)(3) nonprofit or
a nonprofit public benefit organization.
3. Trial
Court’s Ruling
The trial court found that Doreen and
Harvey met their burden to show that the Kashanis’ claims had no merit, and
that the burden shifted to the Kashanis to show that Doreen and Harvey breached
their fiduciary duty or acted negligently by acting in furtherance of their
interests rather than the interest of CMHO.
burden as to Harvey, based upon the Kashanis’ evidence that the CMHO board
exercises control and the power of removal over the AC, and that Harvey “was
actively involved in the Kashani story pole requirement.†The court found, however, that the Kashanis
presented no evidence that Doreen participated in board actions in breach of
her fiduciary duty.
Addressing Doreen’s and Harvey’s
affirmative defenses, the court found that both of them are entitled to
immunity under the Volunteer Protection Act.
The court found that (1) the Kashanis failed to present evidence to
rebut Doreen’s and Harvey’s showing that the Franchise Tax Board determined
that CMHO is organized and operating exclusively as a civic league; (2) a civic
league came within the Act’s definition of “nonprofit organizationâ€; (3) Doreen
and Harvey were volunteers under the Act; and (4) the acts for which the
Kashanis seek to hold Doreen and Harvey liable did not constitute willful or
criminal misconduct, gross negligence, reckless misconduct, or a conscious,
flagrant indifference to the rights or safety of the Kashanis.
The trial court entered judgment in
favor of Doreen and Harvey (as well as the Trustees) on all causes of action in
the Kashanis’ second amended complaint.
The Kashanis filed a notice of appeal from the judgment, and Doreen and
Harvey filed a notice of cross-appeal.
In the meantime, the Trustees, Doreen,
and Harvey filed a motion for attorney fees.
They argued that, as prevailing parties in an action involving the
parties’ rights and obligations under the DRC, they were entitled to their fees
under the DRC’s attorney fee provision.
In making their motion, they did not distinguish between the various
Rochman parties or the causes of action alleged against them. The trial court denied the motion without
prejudice, “finding it more appropriate to handle this issue at the conclusion
of all of the litigation [i.e., after the Trustees’ complaint is
resolved].†The Trustees, Doreen, and
Harvey timely filed a notice of appeal from the trial court’s order. We subsequently granted their motion to
consolidate their appeal from the order denying the motion for attorney fees
with the appeal and cross-appeal from the summary judgment.
DISCUSSION
On appeal, the Kashanis contend that
(1) the Volunteer Protection Act does not apply to their breach of fiduciary
duty claim because it only immunizes simple negligence, and breach of fiduciary
duty based on the breach of a director’s duty of loyalty is an intentional tort
constituting willful misconduct; and (2) the Act does not apply to either claim
because CMHO does not qualify as a nonprofit organization under the Act because
it is not organized and conducted for public benefit or operated primarily for
charitable purposes, and there is nothing in the Act or its legislative history
to suggest it was intended to benefit homeowner associations.
contend there is no triable issue of fact that they engaged in any conduct
constituting a breach of any duty to the Kashanis. Doreen, Harvey, and the Trustees in their
appeal argue that the trial court erred in denying their motion for attorney
fees. We need not determine whether the
Volunteer Protection Act applies because we conclude the Kashanis failed to
produce evidence from which a reasonable trier of fact could conclude that
Harvey breached his fiduciary duty or acted negligently as alleged in the
complaint, causing damage to the Kashanis.
We also conclude that the order denying without prejudice the motion for
attorney fees is not an appealable order and therefore we dismiss the appeal
from that order.
A. The
Summary Judgment/Adjudication Motion
A defendant moving for summary
judgment must present evidence that one or more elements of the plaintiff’s
claim cannot be established or that there is a complete defense to the
claim. If the defendant meets that
burden of production, the burden shifts to plaintiff to show that a triable
issue of material fact exists as to that claim or defense. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The plaintiff shows that a triable issue of
material fact exists by pointing to evidence that would allow a reasonable
trier of fact to find that fact in favor of the plaintiff. (Ibid.) If plaintiff fails to do so, the defendant is
entitled to judgment as a matter of law.
“[T]he issue on appellate review is
simply whether, and to what extent, the evidence submitted for and against the
motion for summary judgment discloses issues warranting a trial.†(Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 335, fn. 7.) If, in deciding this appeal, we find there is
no issue of material fact, we affirm the summary judgment if it is correct on
any legal ground applicable to this case, whether that ground was the legal
theory adopted by the trial court or not.
(Western Mutual Ins. Co. v.
Yamamoto (1994) 29 Cal.App.4th 1474, 1481.)
The first step in our review requires
“an analysis of the pleadings, i.e., the complaint and answer, including any
affirmative defenses that may be contained therein. ‘The pleadings define the issues to be
considered on a motion for summary judgment.’
[Citation.]†(
(1997) 56 Cal.App.4th 112, 122; see also Le
Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1057
[“The propriety of summary judgment is measured against the allegations of the
complaintâ€].)
The operative complaint in the present
case alleges claims against Doreen and Harvey for breach of fiduciary duty and
negligence based upon their conduct as CMHO board members, who had a conflict
of interest with respect to the Kashanis’ proposed construction. Directors of a homeowners association owe a
duty of undivided loyalty to the association, and may not make decisions for
the association that benefit their own interests at the expense of the
association and its members. (
Development Co. (1981) 114 Cal.App.3d 783, 799.) The complaint alleges that Doreen and Harvey
breached this duty because they benefitted their interests by directing CMHO to
refuse to approve the Kashanis’ plans, to require the Kashanis to erect story
poles, to refuse mediation, and to refuse to entertain the Kashanis’ appeal to
the board. In addition, the complaint
alleges that Doreen and Harvey prevented the board from voting on issues
affecting the Kashanis and negligently failed to investigate or consider
alternatives to the story pole requirement, such as computer images or scale
models.
Addressing these allegations, Harvey
submitted his declaration in support of the summary judgment motion, in which
he declared that he was never a member of the AC and was not a member of the
CMHO board at the time the AC imposed the story pole requirement, that the
decision to impose a story pole requirement was made solely by the AC, that he
did not direct CMHO or the AC to refuse to approve the Kashanis’ plans,
entertain their appeal, or agree to mediation, and that he did not prevent the
board from voting on any issues regarding the Kashanis. Thus, Harvey satisfied his burden of
production on summary judgment, and we must determine whether the Kashanis
presented evidence from which a reasonable trier of fact could find that Harvey
did in fact direct CMHO or the AC in the manner alleged.
v. Atlantic Richfield Co., supra,
25 Cal.4th at p. 850.)
The Kashanis did not dispute that
Harvey was not a member of the CMHO board at the time the AC refused to approve
the Kashanis’ plans and imposed the story pole requirement in August 2005. The only evidence the Kashanis presented of
Harvey’s conduct as a CMHO board member
is found in minutes and notes from the two-month period after the Kashanis
filed their lawsuit against CMHO. That
evidence shows that Harvey, a lawyer, took an active role as the liaison
between CMHO and its attorney, in seeking to get CMHO’s insurer to defend CMHO
in the lawsuit, and in gathering information and documents to respond to the
Kashanis’ discovery requests. This
conduct does not appear to have any relation to the conduct alleged in the Kashanis’
complaint.
The Kashanis point to several
references in the minutes and notes, however, which they contend show that
Harvey “exploited [his] directorship[] to impede the Kashanis’ project.†We disagree.
The first reference is to notes from
board president Morena regarding a meeting he had with Harvey a week after the
lawsuit was filed, during which Harvey stated his belief that research would
confirm that CMHO was within its rights to require story poles. The Kashanis contend that these notes “proved
the ‘story poles’ idea originated with the CMHO board and was championed by
Harvey.†They do no such thing. The notes indicate the purpose of the meeting
was to discuss the Kashanis’ lawsuit -- a notation at the top of the page
states that the meeting was “Attorney Client Privileged†-- which sought
damages against CMHO based in part on allegations that CMHO unlawfully required
the Kashanis to erect a “mock up†of the proposed structure before the AC would
approve the plans. No reasonable finder of
fact could find that Harvey’s expression of his belief that CMHO acted
lawfully, in the context of assessing CMHO’s response to the Kashanis’ lawsuit,
is evidence that Harvey directed CMHO to impose the story pole requirement or
to refuse to approve the Kashanis’ plans.
The second reference the Kashanis
point to is the notation in the minutes from the February 22, 2006 board
meeting stating, “Should a Board sub-committee or person be assigned as ‘in
charge’? Harvey agreed to continue to
‘manage’ this project for now.†The
Kashanis assert that this notation shows that Harvey was put “in charge†of the
Kashanis’ application for approval of their building plans. The notation, however, appears under the
heading “Kashani Suit Against CMHO,†indicating that Harvey agreed only to
manage CMHO’s response to the Kashanis’ lawsuit “for now.â€
or the AC to act as alleged in the complaint.
The third reference the Kashanis rely
upon is from notes taken by AC member Martin at the March 13, 2006 board
meeting. Martin noted that, when asked
about the Kashanis’ request for mediation, Harvey said that nothing should be
done before action by the insurance company.
The Kashanis argue that this note shows that Harvey directed that CMHO
since CMHO never agreed to mediation, even after the insurance company
appointed counsel for CMHO, until the trial court ordered the parties to
mediate. But the Kashanis’ argument
ignores both the full content of Harvey’s statement and the context in which it
was made. As the minutes from that board
meeting show, Harvey reported to the board that the lawsuit had been tendered
to the insurance company but the company had not yet acted to appoint an
attorney to defend CMHO. Another board
member, Zab Mosenifar, expressed concern that mediation could be costly and
that the insurance company should be involved.
In this context, Harvey’s statement that nothing should be done about
the Kashanis’ request for mediation before
action by the insurance company cannot be interpreted to mean anything
other than a suggestion that CMHO wait for the insurance company to appoint an
attorney, to allow the appointed attorney to respond to the Kashanis’ request.
based upon Harvey’s statement and CMHO’s failure to agree to mediation after
CMHO’s representation in the lawsuit was turned over to the insurance company
lawyer, that Harvey directed CMHO (or its lawyer) to reject the Kashanis’
request for mediation. In fact, notes taken
by CMHO board chairman Morena from his April 3, 2006 meeting with the attorney
appointed by the insurance company indicate that Morena and the attorney
discussed the possibility of agreeing to mediation, but they were concerned
about getting the documents they needed to participate.
The final reference the Kashanis point
to is the cryptic note taken by CMHO board chairman Morena at that same April
3, 2006 meeting. The Kashanis assert
that one can infer from that note -- “Harvey’s two issues . . . 1) story poles
2) variance issue†-- that the story pole requirement was “Harvey Rochman’s
idea.†Such a inference would be
speculative at best. No reasonable trier
of fact could conclude, based upon that note, that Harvey directed CMHO or the
AC to impose the story pole requirement, especially in light of references in
notes or minutes from other meetings indicating that Harvey was going to
conduct research relating to the story pole issue for purposes of the
lawsuit. In short, that note does not
give rise to an inference sufficient to raise a triable issue. (O’Neil
v. Dake (1985) 169 Cal.App.3d 1038, 1044 [triable issue may be raised by
inferences only if “those inferences be reasonably
deducible from evidence, and not such as are derived from speculation,
conjecture, imagination or guess workâ€].)
There is no doubt that the Kashanis
presented evidence that raises questions regarding Harvey’s possible conflict
of interest due to his participation in CMHO’s initial response to the Kashanis
lawsuit. But that is not the basis for
the Kashanis’ claims. The evidence does
not show (or give rise to an inference) that Harvey was in any way responsible
for CMHO’s or the AC’s imposition of the story pole requirement, refusal to
approve the Kashanis’ plans, entertain their appeal, or agree to mediation --
the conduct upon which the claims against him are based. Therefore, Harvey is entitled to judgment as
a matter of law. The judgment is
affirmed.
B. The
Order Denying the Motion for Attorney Fees Not Appealable
The Trustees, Doreen, and Harvey argue
in their appeal (case No. B231915) that the trial court erred by denying their
motion for attorney fees because they were the prevailing parties in the
Kashanis’ lawsuit. The Kashanis contend
the trial court’s order denying the motion is not an appealable order because
the trial court denied the motion without prejudice, finding the issue must be
deferred until the resolution of the Trustees’ lawsuit against the Kashanis,
which had been consolidated with the Kashanis’ lawsuit. The Kashanis are correct.
Ordinarily, an order granting or
denying a post-judgment attorney fee motion is appealable under Code of Civil
Procedure section 904.1, subdivision (a)(2).
But the trial court here did not rule on the merits of the prevailing
parties’ motion, it simply postponed its ruling. Because the minute order makes clear that the
trial court contemplated further action to determine the Trustees’, Harvey’s,
and/or Doreen’s right to attorney fees, the order is not appealable. (See, e.g., Gibson v. Savings & Loan Commissioner (1970) 6 Cal.App.3d 269,
272 [trial court’s denial without prejudice of alternative writ sought by
petitioner is not appealable where trial court did not intend by its order to
finally determine the rights of the parties]; Estate of Keuthan (1968) 268 Cal.App.2d 177, 180 [appeal from a
probate court order denying without prejudice administrator’s application for
payment of attorney fees and petition for decree of distribution; appellate
court dismissed appeal, concluding that “[t]he words ‘without prejudice’
eliminate any binding effect that the order appealed from might haveâ€].) Therefore, we dismiss the appeal in case No.
B231915. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [“The existence of
an appealable judgment is a jurisdictional prerequisite to an appealâ€].)
DISPOSITION
The judgment in case No.
B226060 is affirmed; Doreen Rochman and Harvey Rochman shall recover their
costs related to that appeal. The appeal
in case No. B231915 is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J. SUZUKAWA, J.
discussion of the facts will be limited to those facts relevant to the issues
in this appeal, i.e., the claims alleged against Doreen and Harvey, and the
motion for attorney fees filed by them and the Trustees.
Kashanis refer to Martin as chairman of the AC, but in fact, the chairman was
Reuel Sutton, who was out of town from July to September 2005.
