Lushmeadows Assn. v. Taggs





























Filed 8/3/10 Lushmeadows Assn.
v. Taggs CA5





















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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



FIFTH APPELLATE
DISTRICT


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LUSHMEADOWS ASSOCIATION, INC., Plaintiff and Respondent, v. EUGENE TAGGS et al., Defendants and Appellants.

F056967 and F057815 (Super. Ct. Nos. 9018 and 9070) >OPINION

APPEAL from
judgments of the Superior Court of Mariposa
County. Terry K. Cole, Judge. (Retired judge of the Stanislaus Sup. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Jamison
& Chappel, Gregory M. Chappel, and Nanette Beaumont for Defendants and
Appellants.

Law Offices
of Ann Rankin and Ann Rankin for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Developer Decker Enterprises
(Decker) created Lushmeadows Mountain Estates (LME) in four phases between 1962
and 1964. All LME lots were encumbered
with recorded covenants, conditions, and restrictions (CC&Rs). Those CC&Rs primarily consisted of use
restrictions and architectural covenants and provided that the CC&Rs could
be amended by a vote of the majority of the then-owners of the lots. The original CC&Rs did not create a
homeowners association or establish assessments for maintenance of common
areas.

In 1963, Decker incorporated the
nonprofit Lushmeadows Association (LMA) and charged the corporation with
acquiring, improving, and maintaining common areas of real property for park,
playground, recreational, and club house purposes. In 1966, Decker deeded the common areas of
LME, approximately 15 acres, to LMA. LMA
membership was voluntary between 1963 and 1990 and the LMA had a right to levy
assessments against owner-members but not LME property owners who were
non-members.

Appellants purchased their LME lots
before 1990 and were not members of LMA.
In 1990, the LME owners amended the CC&Rs by a majority vote of lot
owners. The amendments made LMA
membership mandatory for persons acquiring LME lots after July 1, 1990. In 2003, the LME owners again amended the
CC&Rs by majority vote and made LMA membership mandatory for all owners,
regardless of the date of acquisition of their lots. The 2003 amendments also required all lot
owners to pay annual assessments.
Appellants unsuccessfully challenged the amended CC&Rs in superior
court. They now appeal on a variety of
grounds, essentially maintaining the LMA could not amend and expand the
CC&Rs to provide for mandatory membership in LMA and to transform the LME
subdivision into a common interest development under California law. We affirm.

STATEMENT OF
THE CASE^[1] >

On November 29, 2006, respondent
Lushmeadows Association, Inc. (LMA), a California nonprofit mutual benefit
corporation, filed a complaint for declaratory relief (No. 9018) in Mariposa
County Superior Court. LMA named
appellant Eugene Taggs and 200 Does as defendants, alleged the defendants were
obligated to pay assessments as property owners within the Lushmeadows Mountain
Estates planned development (LME), and prayed for a judicial determination of
the rights and duties of the parties, including a declaration as to the
membership responsibilities of the appellants and the right of LMA to levy
assessments.

On January 22, 2007, appellant
Taggs filed an answer generally denying the material allegations of the
complaint (Code Civ. Proc., § 431.30) and a cross-complaint for
declaratory relief. The cross-complaint
alleged LMA was not a legally valid homeowners' association for the underlying
properties and had no right to create, enforce, or collect property assessments. On January 30, 2007, LMA filed an answer
generally denying the material allegations of the cross-complaint and setting
forth 11 affirmative defenses.

On March
20, 2007, appellants Cecilia Wray, Jeffrey Whalley, and Mary Whalley filed a
verified complaint (No. 9070) against LMA for declaratory relief, slander of title,
and cancellation of cloud on title. Wray
and the Whalleys alleged they were property owners in LME and prayed for a
declaration, among other things, that LMA was not a validly-created homeowners'
association for their properties and had no authority to impose
assessments.

On March
27, 2007, the court filed an order on stipulation to consolidate case Nos. 9018
and 9070, with all subsequent papers, orders, and judgments to be filed under
the latter docket number.

On April
23, 2007, LMA filed an answer generally denying the material allegations of the
Wray/Whalley complaint and a cross-complaint against Wray and the Whalleys for
declaratory relief and monetary damages.

On June 27,
2008, counsel for appellants advised the superior court of the passing of
Cecilia Wray and substituted â€