Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV445931
RIVERA, J.
Defendant and cross-complainant Victor I. Gilbert (defendant) appeals a judgment in favor of plaintiff and cross-defendant Bay Area Senior Services, Inc. (BASS). We affirm.
I. BACKGROUND
Defendant’s mother, Ethel B. Gilbert (Gilbert), entered into a “continuing care membership agreement” (the agreement) with BASS in July 1997. Under the agreement, she acquired the right to “reside in and receive continuing care services for life at The Peninsula Regent” in San Mateo. She purchased a “leasehold condominium” and became a member of “The Peninsula Regent Residential Parcel Homeowners’ Association.”
BAC Associates (BAC), a California limited partnership, owned, and BASS leased, the real property where the Peninsula Regent was located, as well as the portions of the facility other than the residences and the hallways on the residential floors.
The agreement signed by Gilbert described the ownership of the Peninsula Regent as follows: “The Peninsula Regent, which consists of Parcels A and B, is leased by BASS. Parcel A is the part of The Peninsula Regent in which continuing care and other services will be provided. It consists of, among other elements, the land, garage, first floor, penthouse, elevators, and the exterior building walls. Your Membership and leasehold condominium interest do not give you any ownership interest in Parcel A or BASS, nor any voting rights in BASS. [¶] Your leasehold condominium interest is only in Parcel B. Generally, Parcel B consists of the residences and hallways on floors two through ten.”
The agreement between BASS and Gilbert provided, inter alia: “The purchase of your leasehold condominium..., together with payment of a Monthly Fee, shall entitle you to a residence, services, and use of other areas at The Peninsula Regent, subject to the terms and conditions of this Agreement and the policies and procedures of The Peninsula Regent. If you require assistance with the routines of daily living or require skilled nursing care, appropriate arrangements for your care will be made available in accordance with this Agreement.”
Further, under the agreement, a sale of the leasehold condominium was subject to a transfer fee. The agreement provided: “Upon sale, a Transfer Fee is to be paid to BASS consisting of: [¶] 1. Ten percent (10%) of your leasehold condominium purchase price...; plus [¶] 2. Seventy-five percent (75%) of any ‘appreciation’ in your leasehold condominium, which is the difference between your original leasehold condominium purchase price and any higher price paid for your leasehold condominium by a Qualified Buyer. [¶] A portion of the Transfer Fees received by BASS will be used to make certain contingent Lease payments to BAC. The remainder of the Transfer Fee will be used by BASS for any purpose consistent with its tax exempt public benefit status.”
BASS brought a complaint for declaratory relief against defendant and Borel Private Bank & Trust (Bank) in April 2005. According to the complaint, in November 2004, just before Gilbert’s death, defendant sold Gilbert’s interest in her unit of the Peninsula Regent. The parties could not agree on the division of the proceeds of the sale, including BASS’s entitlement to a transfer fee, and the proceeds had been placed in an escrow account at Bank.
The complaint alleged that Gilbert had been transferred from the Peninsula Regent, first to the Ralston Village, and then to Bay View Villa, as her need for greater care increased.
Defendant, individually and in his capacities as successor trustee to the Ethel Gilbert Trust and as personal representative of the estate, and his sister, Judith Gilbert Rief (Rief), cross-complained against BASS and Ralston Village. The cross-complaint alleged causes of action against BASS for negligence, wrongful death, fraud, negligent infliction of emotional distress, elder abuse, unfair business practices, breach of contract, breach of the implied covenant of good faith and fair dealing, fraudulent inducement, and promissory estoppel.
Ralston Village and Rief are not parties to this appeal.
Claims for negligence, fraud, elder abuse, and breach of contract were submitted to the jury. The jury returned verdicts in favor of BASS and Ralston Village on all causes of action submitted to it. The trial court ruled in BASS’s favor on its action for declaratory relief, ruling it was entitled to the transfer fee, an empty residence fee, and reimbursement for money it paid to a registry service for an aide for Gilbert. On the cross-complaint, the trial court dismissed the causes of action for unfair business practices and promissory estoppel.
II. DISCUSSION
A. Inadequate Citations to the Appellate Record
Both defendant and BASS originally filed briefs on appeal that lacked adequate citations to the record. We issued an order directing the parties to submit corrected briefs with proper citations to the appellate record, citing California Rules of Court, rule 8.204(a)(1)(C). BASS submitted a corrected respondent’s brief that complied with our directive. The corrected opening and reply briefs submitted by Gilbert, however, failed to do so. They are replete with factual assertions that lack any reference whatsoever to any portion of the record. In these circumstances, we have power to dismiss the appeal or strike defendant’s briefs. (See Berger v. Godden (1985) 163 Cal.App.3d 1113, 1118 1119; Spangle v. Farmers Ins. Exchange (2008) 166 Cal.App.4th 560, 564, fn. 3.) Rather than resort to such a remedy, we shall disregard all factual assertions in appellant’s brief that are not supported by record citations, and treat as waived arguments not supported by citations to the record. (See Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601, fn. 6 (Stevens); Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 (Pringle).)
California Rules of Court, rule 8.204(a)(1)(C) requires each brief on appeal to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.”
See, e.g., Corrected Appellant’s Opening Brief, pp. 3-6, 13, 18, 19, 21, 24-30, 33-45, 51; Corrected Appellant’s Reply Brief, pp. 4-5, 7, 29, 33-35, 39, 45.
B. Applicability of Davis-Stirling Common Interest Development Act
In ruling on motions in limine, the trial court barred “all utilization of provisions of the Davis-Stirling Common Interest Development Act ([Civ. Code, §§] 1350-1378) [the Davis-Stirling Act] in support of the claims of cross-complainant.” Defendant contends this ruling was error, that the Davis-Stirling Act applies to the sale of Gilbert’s unit at the Peninsula Regent, and that under the Davis-Stirling Act, the transfer fee was excessive.
The Davis-Stirling Act governs condominium projects and certain other common ownership arrangements. (Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 1100; Civ. Code, §§ 1351, subd. (c), 1352.) Gilbert owned a condominium interest in the Peninsula Regent and defendant contends the transfer fee violated Civil Code section 1366.1, part of the Davis-Stirling Act, which provides: “An association shall not impose or collect an assessment or fee that exceeds the amount necessary to defray the costs for which it is levied.” The transfer fee at issue here—10 percent of the original condominium purchase price plus 75 percent of the appreciation—according to defendant, exceeds BASS’s costs.
An association is defined as “a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development.” (Civ. Code, § 1351, subd. (a).) The Legislature contemplated that the officers and directors of an association would be volunteer homeowners. (Brown v. Professional Community Management, Inc. (2005) 127 Cal.App.4th 532, 538.)
In entering into the continuing care membership agreement with BASS, Gilbert acquired not simply a parcel of real estate, but a right to “reside in and receive continuing care services for life.” Contracts providing for continuing care are governed by certain provisions of the Health and Safety Code section 1770 et seq. Under that statutory scheme, a continuing care contract is defined as “a contract that includes a continuing care promise made, in exchange for an entrance fee, the payment of periodic charges, or both types of payments....” (§ 1771, subd. (c)(8).) An entrance fee is defined as “the sum of any initial, amortized, or deferred transfer of consideration made or promised to be made by, or on behalf of, a person entering into a continuing care contract for the purpose of ensuring care or related services pursuant to that continuing care contract or as full or partial payment for the promise to provide care for the term of the continuing care contract. Entrance fee includes the purchase price of a condominium, cooperative, or other interest sold in connection with a promise of continuing care....” (§ 1771, subd. (e)(3), italics added.) Thus, it is clear that in enacting the applicable provisions of the Health and Safety Code, the Legislature contemplated that residents of continuing care facilities could buy a condominium interest as full or partial payment for the right to receive care, and that an entrance fee could include a delayed transfer of consideration.
All undesignated statutory references are to the Health and Safety Code.
The statutory scheme governing continuing care contracts limits resale fees: “No resale fee shall exceed the sum of 10 percent of either the original or resale price of the equity interest and 100 percent of the excess if any, of the gross resale price of the equity interest over the purchase price paid by the resident or on behalf of the resident for the interest if either of the following applies: [¶] (1) The continuing care contract involved the purchase of an equity interest from the provider and is terminated after the cancellation period. [¶] (2) The continuing care contract involved the purchase of an equity interest from another resident and is terminated at any time.” (§ 1788.2, subd. (e).)
An equity interest means “an interest held by a resident in a continuing care retirement community that consists of either an ownership interest in any part of the continuing care retirement community property or a transferable membership that entitles the holder to reside at the continuing care retirement community.” (§ 1771, subd. (e)(5).) A resale fee is “a levy by the provider against the proceeds from the sale of a transferor’s equity interest.” (§ 1771, subd. (r)(3).) Defendant does not contend the transfer fee at issue here does not fall within the definition of a resale fee.
Defendant contends that the transfer fee is subject not only to section 1788.2, which limits resale fees in continuing care contracts to 10 percent of the purchase price and 100 percent of the appreciation, but also to Civil Code section 1366.1, which prohibits associations from charging fees that exceed the amount necessary to defray the costs for which it is levied. We reject this contention for two reasons. First, the “association” referred to in Civil Code section 1366.1 is one created for the purpose of managing a common interest development, ordinarily composed of volunteer homeowners. (Civ. Code, §§ 1351, subd. (a), 1363, subd. (a), 1365.7, subd. (a); Brown, supra, 127 Cal.App.4th at p. 538; see also Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1550.) As explained in the agreement, BASS was responsible for the management and control of the continuing care services at the Peninsula Regent. In this capacity, it acted not as a homeowners’ association, but as a continuing care provider. (See § 1771, subd. (p)(9).) Thus, by its terms, Civil Code section 1366.1 does not appear to apply to the transfer fee imposed by BASS.
Even if BASS can be construed to have controlled or filled the role of the Peninsula Regent’s “association” during some period of time, as defendant argues, we would conclude that the transfer fee is not subject to the limitation of Civil Code section 1366.1 because such a limitation would conflict with section 1788.2, subdivision (e). Civil Code section 1366.1 deals generally with fees in common interest developments. Section 1788.2, subdivision (e), on the other hand, applies specifically to the sale of equity interests in continuing care communities. The Legislature contemplated that the consideration for a promise of continuing care could include the purchase of a condominium interest in partial payment for the right to receive care, and that a portion of the consideration for the continuing care could be delayed. (§ 1771, subds. (c)(8) & (d)(3).) In the circumstances, we apply the rule of statutory construction that where two statutes are inconsistent, “ ‘a particular or specific provision will take precedence over a conflicting general provision.’ ” (Stone Street Capital, LLC v. California State Lottery Com. (2008) 165 Cal.App.4th 109, 119.) Indeed, the chapter of the Health and Safety Code containing section 1366.1 includes the following provision regarding conflict with other laws: “To the extent that this chapter, as interpreted by the [State Department of Social Services], conflicts with the statutes, regulations, or interpretations governing the sale or hire of real property, this chapter shall prevail.” (§§ 1775, subd. (a), 1771, subd. (d)(1).) Accordingly, we conclude the trial court properly ruled that defendant could not rely on the Davis-Stirling Act.
In reaching this conclusion, we reject defendant’s contention that section 1788.2 and Civil Code section 1366.1 can be reconciled. Defendant suggests that reading the two statutes together, transfer fees of up to 10 percent of the purchase price and 100 percent of the appreciation are permissible under section 1788.2, so long as they do not exceed the amount necessary to defray the costs for which they are levied (Civ. Code, § 1366.1). The law governing continuing care, however, serves the specific purpose of protecting the security of the elderly in continuing care facilities. (See § 1770 [purpose of law governing continuing care contracts].) To serve this purpose, the Legislature enacted a detailed statutory scheme, applicable to both for-profit and nonprofit provider entities, which allowed the provider to impose a resale fee on a condominium in a continuing care community that is larger than that imposed by BASS. (§§ 1770, subds. (a), (b), & (e), 1788.2, subd. (e).) We cannot conclude that the Legislature intended this provision to be limited by a statute capping the fees that could be charged by a homeowners’ association in a common interest development.
C. Other Contentions
Defendant makes a number of other claims of error. However, the inadequate record citations in his briefs make it impossible for us to evaluate these contentions or to determine whether any error caused prejudice to defendant. These claims include the arguments that the trial court abused its discretion in excluding the evidence of two witnesses, Thomas Callinan and Akram Omari, and that the jury was not adequately instructed. We will treat these points as waived. (See Stevens, supra, 75 Cal.App.4th at p. 601; Pringle, supra, 73 Cal.App.4th at p. 1003.)
III. DISPOSITION
The judgment is affirmed.
We concur: REARDON, Acting P.J., SEPULVEDA, J.