2008-00010706-CU-CO

Park River Oak Estates HOA vs. Charles E Yeager

Nature of Proceeding:      Motion for Summary Judgment and/or Adjudication

Filed By:   Thomas, Michael

***  If oral argument is requested, the parties are directed to notify the clerk and
opposing counsel at the time of the request which of the causes of action and
which of the 63 Undisputed Material Facts offered by moving defendants and/or
19 Additional Material Facts will be addressed at the hearing and the parties
should be prepared to point to specific evidence now before the Court which is
claimed to show the existence or non-existence of a triable issue of material
fact.  ***

Defendants Charles Yeager, et al.’s motion for summary judgment or alternatively, for
summary adjudication of all eight (8) causes of action (“COA”) alleged in plaintiff Park
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River Oak Estates Homeowners Association’s (“HOA”) 4   Amended Complaint
(“4AC”), is DENIED as follows.

Moving counsel is admonished for failing to comply with CRC Rule 2.111, subdivisions
(1) and (3) as well as Rule 3.1350, subdivisions (b) and (g). Opposing counsel is admonished for failing to comply with CRC Rule 3.1350(g).

Although the notice of motion provided notice of the Court’s tentative ruling system as
required by Local Rule 1.06(D), the notice does not comply with that rule.  Moving
counsel is directed to review the Local Rules, effective 1/1/2013.

This action relates to two lots owned by defendants and arises from a dispute over
whether defendants are subject to plaintiff HOA’s Conditions, Covenants and
Restrictions (“CCR”), including the obligation to pay dues for services provided by
HOA.  The 4AC filed 11/13/2012 purports to assert eight (8) COA for unjust
enrichment, fraudulent transfer, quantum meruit, common counts, breach of contract,
fraud – promise without intent to perform, fraud – intentional misrepresentation, and
mandatory injunction.  Defendants now seek summary judgment/adjudication on
various grounds.

Plaintiff’s objections to evidence Nos. 1-2 (Musial Decl.) are overruled, while Nos. 3-4
(V. Yeager Decl.) are sustained.

Defendants (timely) filed no written objections to evidence.

Motion for Summary Judgment

Defendants move for summary judgment on all eight (8) COA alleged in the 4AC
claiming there is no triable issue of material fact and they are entitled to judgment as a
matter of law.  As support for summary judgment, defendants offer UMF Nos. 1-15 but
if they fail to carry their initial burden under Code of Civil Procedure §437c(p)(2) with
respect to any one of these 15 UMF or if there is a triable issue of material fact with
respect to any of these 15 UMF, then summary judgment must be denied as a matter
of law. (See, Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (citing Weil
& Brown, Civil Procedure Before Trial, Ch.10:95.1) [moving party’s inclusion of facts in
its separate statement effectively concedes each fact’s “materiality,” whether intended
or not, and if there is a triable dispute relating to any one, the motion must be denied].)

Here, the Court finds that defendants failed to carry their initial burden of production
under Code of Civil Procedure §437c(p)(2) because UMF 13 is not supported by
admissible evidence in that HOA’s objections to the evidence cited in support (V.
Yeager Decl.) have been sustained.  Without admissible evidence to support UMF 13,
defendants failed to satisfy their initial burden of production and this alone mandates
denial of summary judgment on all COA regardless of the evidence, if any, offered by
HOA in opposition.

Even if defendants had met their initial burden, summary judgment must still be denied
because HOA has presented admissible evidence sufficient to establish a triable issue
of material fact with respect to UMF Nos. 3-5 and 8-12 particularly since the evidence
in opposition must be construed liberally and the evidence in support is construed
narrowly. (See, e.g., DiLoreto v. Bd. of Education (1999) 74 Cal.App.4th 267; Alvarez
v. State of California (1999) 75 Cal.App.4th 903.)  As noted above, defendants’
inclusion of UMF Nos. 3-5 and 8-12 effectively concedes that each of these eight (8)
UMF is “material” whether intended or not, and the existence of a triable dispute
relating to any one requires denial of summary judgment regardless of the 19
Additional Material Facts (“AMF”) offered by HOA. UMF 3 purport to describe the method for annexation under plaintiff HOA’s CCR and is
based on Article XVIII, Section 18.2 but HOA’s response to UMF 3 points out that
under the CCR, there is an alternative procedure provided for in Section 18.6 of the
same article.  UMF 4 then asserts that HOA did not follow the procedure for
annexation described in CCR Article XVIII, Section 18.2 but HOA’s response to UMF 4
again points to the alternative procedure for annexation under the CCR.  Because
HOA’s response to these UMF is borne out by the evidence, neither of these UMF can
be considered undisputed and particularly when considered together, the Court finds
there is a triable issue of material fact relating to whether the HOA properly annexed
defendants’ property and whether defendants are properly subject to the provisions of
the CCR.

UMF 5 claims that under the CCR, “the duty of a property owner to pay assessments
to the [HOA] does not accrue until the owner is a ‘member’ of the [HOA] under either
the original properties of the [HOA] or by annexation.”  In response, HOA asserts that
those residing “within the Association boundaries are bound under principles of
equitable servitudes to pay assessments when they are using common areas,
receiving all the benefits of membership such as fire and casualty insurance being paid
to protect their property, when they use the garbage collection system for their own
benefit or that of their tenants, when the use the roads and security gates to secure
their own real property” and further that there is “a non-exclusive easement for ingress
and egress enabling use of the security gates and private streets within the [HOA’s]
subdivision,” with “the cost of maintenance shall to be shared by each owner of the
easement.”  Coupled with absence of any written objections to HOA’s evidence, HOA’s
evidence (which must be construed liberally) is sufficient to establish a triable issue of
material fact with respect to UMF 5.

UMF 8 asserts that defendants, after acquiring their two lots, entered into a contract
with River City Construction Company, Inc. but the contract does not list the HOA as
an intended beneficiary and none of the parties intended the HOA to be a beneficiary
of the Construction Contract.  In response, HOA correctly points out that this Court
previously stated, “A fair reading of the construction agreement includes defendants’
promise to join the HOA and to pay ‘all HOA dues and assessments related to Owner’s
lots or units.’ … Such dues and assessments would clearly benefit plaintiff. … [¶] [T]he
subject contract specifically provides in pertinent part: [¶] ‘Owner is also responsible for
all HOA dues and assessments related to Owner’s lots or units.’” (4AC,” (4/11/2013
Min. Order re: Demurrer to 4AC.)  Consequently, the Court finds that plaintiff HOA has
also shown the existence of a triable issue of material fact relative to UMF 8 as well.

Although UMF 9 claims that after completion of defendants’ two homes on the two lots
42 and 48, Ms. Yeager advised the HOA that defendants were prior to construction
unaware of any annexation requirement and since then, defendants have consistently
refused annexation, plaintiff’s response cites (in addition to the construction contract
discussed in the preceding paragraph) evidence which tends to show that Ms. Yeager
had previously stated she intended to annex in the two lots once renters were
obtained.  Construing this evidence liberally as required by California law, the Court
holds that a triable issue of material fact exists with respect to UMF 9.

UMF 10 contends that defendants’ two lots have not been annexed into the HOA and
none of the defendants have requested or desire to receive any services from the
HOA.  In response, plaintiff offers evidence which tends to show that defendants and
their renters have from time to time used the HOA’s roadways, gated entryways,
garbage collection bins, street lights, and allowed the HOA to maintain their front yard,
landscaping, irrigation, roofs, gutters, and outside walls.  Additionally, the evidence in
opposition indicates that the HOA is legally obligated to maintain its streets and
common facilities, with the costs to be shared equally by the lot owners.  Thus, there is
a triable issue of material fact in connection with UMF 10 too.

UMF 11 asserts that the tenants of defendants’ two lots do not use common areas
facilities such as the pool or clubhouse.  While HOA’s evidence does not show any
specific use of the pool or clubhouse, it does especially when construed liberally tend
to show that defendants’ renter do at least occasionally use the common areas and
facilities which HOA is obligated to maintain, including but not limited to the streets,
gates and other routine services.  This evidence satisfies plaintiff’s burden of showing
a triable issue of material fact relative to UMF 11.

UMF 12 claims not only that defendants have never been treated as members of the
HOA (e.g., they have not received ballots or meeting notices) but also that the HOA
acknowledges the two lots have not been annexed into the HOA.  As with its response
to UMF 5, plaintiff cites evidence to the effect that defendants’ two lots are part of the
HOA as a whole by virtue of equitable servitudes and equitable annexation.  Coupled
with absence of any written objections to HOA’s evidence, the Court finds that the
evidence in opposition which must be construed liberally sufficiently demonstrates
another triable issue of material fact with respect to UMF 12 as well.

In any event, the Court finds that several of HOA’s AMF raise additional triable issues
of material fact which independently justify the denial of summary judgment. (See, e.g.,
AMF Nos. 1-9, 15-19.)

Finally, the Court notes that defendants’ own memorandum of points & authorities in
reply appears to concede the motion for summary judgment must be denied, at least to
the extent defendants do not explicitly argue they are entitled to summary judgment on
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the entire complaint (or entitled to summary adjudication of the 1   COA).

Motion for Summary Adjudication

At the outset, the Court notes that defendants’ notice of motion does not comply with
the express requirements of CRC Rule 3.1350(b), mandating that all issues presented
for summary adjudication to be stated in the notice of motion and repeated verbatim in
the separate statement.  Here, defendants’ notice of motion identified no issues or
COA whatsoever and the Court on this ground alone denies the alternative motion for
summary adjudication of the individual COA in the 4AC.

Even if summary adjudication were not denied due to defendants’ failure to comply
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with CRC Rule 3.1350(b), summary adjudication must be denied as to the 2                         , 4   and
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8   COA because UMF Nos. 23, 37 and 61 (each of which is identical to UMF 13,
discussed above and each of which is cited in support of summary adjudication of the
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2   , 4   and 8   COA) are not supported by any admissible evidence given that HOA’s
objections to the evidence cited by defendants have been sustained.  In the absence
of evidentiary support for UMF Nos. 23, 37 and 61, defendants failed to meet their
initial burden of production pursuant to Code of Civil Procedure §437c(p)(2) and thus,
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summary adjudication must be denied as to the 2                 , 4   and 8   COA without regard for
any evidence offered by HOA in connection with these three (3) COA.
Additionally, as discussed below, summary adjudication must be denied as to all eight
(8) COA because HOA has presented admissible evidence sufficient to establish a
triable issue of material fact with respect to at least one UMF offered by defendants in
connection with each COA.  The fact that the evidence in opposition must be
construed liberally while the evidence in support is construed narrowly merely
reinforces the conclusion here that HOA has met its burden of showing a triable issue
of material fact.  Moreover, several of HOA’s AMF create still more triable issues of
material fact which require denial of summary adjudication of all COA in the 4AC.

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1   COA for Unjust Enrichment.  Defendants offer UMF Nos. 16-22 as support for
summary adjudication of this COA.  However, plaintiff have shown that triable issues
exist with respect to UMF Nos. 18-22 which are identical to UMF Nos. 3-5 and 10 and
which were discussed above in connection with the summary judgment motion.  Given
the liberal construction that must be afforded to HOA’s evidence in opposition, the
Court finds triable issues of material fact which preclude summary adjudication of the 1
st COA.

2nd COA for Fraudulent Transfer.  Defendants seeks summary adjudication based on
UMF Nos. 23-24 but UMF 23, which is identical to UMF 13, is without evidentiary
support because HOA’s objections to the cited evidence have been sustained.
Therefore, defendants failed to meet their initial burden of production and summary
adjudication is denied as to the 2nd COA.

3rd COA for Quantum Meruit.  Defendants base their motion relative to the 3rd COA
on UMF Nos. 41-43.  Although defendants did satisfy their initial burden of production
under Code of Civil Procedure §437c(p)(2), HOA has shown there are triable issues of
material fact with respect to each of these three (3) UMF.  After all, UMF Nos. 41-43
are identical to UMF Nos. 9-11 and as discussed above in connection with the motion
for summary judgment, HOA has presented evidence sufficient to show that UMF Nos.
9-11 are in dispute especially in light of the rule requiring the evidence in opposition be
construed liberally while the evidence in support is construed narrowly.  Because
defendants’ inclusion of UMF Nos. 41-43 effectively concedes that each of these UMF
is “material” whether intended or not, the existence of a triable issue relating to any
one of them mandates denial of summary adjudication on the 3rd COA as well.

4th COA for Common Counts.  Defendants insist they are entitled to summary
adjudication of this COA based on UMF Nos. 25-39 but in reality, these UMF simply
reiterate the same 15 UMF cited as support for summary judgment.  Because
defendants have not provided admissible evidence as support for UMF 37 which is
identical to UMF 13, they failed to carry their initial burden of production and this alone
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requires denial of summary adjudication as to the 4   COA.  Regardless, even if
defendants had met their initial burden, HOA has produced admissible evidence
sufficient to demonstrate the existence of triable issues of material fact with respect to
UMF Nos. 27-29 and 32-36 for the same reasons the Court concluded above, in
connection with the summary judgment motion, that there are triable issues relating to
UMF Nos. 3-5 and 8-12, including the liberal construction of the evidence offered in
opposition.  Finally, HOA’s own AMF Nos. 1-9 and 15-19 create additional triable
issues of material fact which independently justify denial of summary adjudication on
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the 4   COA.

5th COA for Breach of Contract.  Defendants seek summary adjudication on this                COA based on UMF 40 alone and given that HOA has failed to demonstrate
otherwise, the Court holds that defendants met their initial burden of production under
Code of Civil Procedure §437c(p)(2).  However, because UMF 40 is identical to UMF
8, discussed above in connection with the motion for summary judgment, the Court
finds that HOA has satisfied its burden of presenting evidence show a triable issue of
material fact for the same reasons discussed above.  Summary adjudication must
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therefore be denied as to the 5   COA, and HOA’s AMF Nos. 5-9 and 15-16 also pose
further triable issues of material fact which preclude summary adjudication of this
COA.

6th & 7th COA for Promise Without Intent To Perform & Intentional
Misrepresentation.  Defendants offer UMF Nos. 44-48 as support for summary
adjudication of these two fraud COA.  The Court notes these five (5) UMF are identical
to UMF Nos. 1-5 which were also cited as support for summary judgment on the entire
4AC and thus, for the same reasons set forth above, HOA has shown triable issues
exist with respect to UMF Nos. 46-48.  Consequently, summary adjudication must be
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denied as to both the 6   and 7   COA.

8th COA for Mandatory Injunction.   Defendants maintain they are entitled to

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summary adjudication of the 8   COA based on UMF Nos. 49-63, which are duplicative
of UMF Nos. 1-15 cited as support for summary judgment.  Thus, as with UMF 13, the
Court finds that defendants have failed to satisfy their initial burden of production with
respect to UMF 61 and for this reason alone, summary adjudication must be denied as
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to the 8   COA.  Nevertheless, had defendants had met their initial burden, summary
adjudication of this COA would have to be denied because plaintiff HOA has shown
with admissible evidence triable issues of material fact relative to UMF Nos. 51-53 and
56-60 (identical to UMF Nos. 3-5 and 8-12), especially since HOA’s evidence must be
liberally construed.  Regardless, summary adjudication must be denied because
plaintiff HOA’s own AMF Nos. 1-9 and 15-19 are sufficient to establish additional
triable issues of material fact which alone mandate denial of summary adjudication of
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the 8   COA.

This minute order is effective immediately.  Pursuant to CRC Rule 3.1312, plaintiff to
prepare a proposed order.