Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIC870359, Kevin A. Enright, Judge.
HUFFMAN, J.
This appeal arises from the trial court's resolution of cross-motions for summary judgment regarding the interpretation of provisions in a recorded declaration of conditions, covenants and restrictions (CC&Rs) that applies to the Canyon Haven condominium development. (Code Civ. Proc., § 437c.) Plaintiff/cross-defendant/ appellant Cedric Gabriel, a condominium owner, sued defendant/cross-complainant/ respondent Canyon Haven Homeowners Association (HOA) for breach of contract, injunctive relief and negligence, after HOA had maintenance and repair work done on Gabriel's balcony and sent him an assessment for some of the costs incurred. HOA filed a cross-complaint for breach of contract, injunctive relief, nuisance and declaratory relief.
Gabriel appeals the trial court's ruling that granted HOA's motion for summary judgment, and that accepted HOA's interpretation of Article V, sections 1 and 2 of the CC&Rs, regarding repair and maintenance of the "Exclusive Use Area" of the "Common Area." (Art. I, § 10.) The court determined that the governing documents, read as a whole, required Gabriel to pay for the maintenance and repair of the waterproofing on his balcony. Conversely, the court denied Gabriel's motion for summary judgment and adjudication in its entirety. Judgment was entered in favor of HOA in the amount of $1,575 with interest, together with attorney fees of $17,923.50 and costs.
On de novo review, we conclude the trial court correctly interpreted the CC&Rs regarding the obligations for maintenance and repair of the balcony. Summary judgment on HOA's cross-complaint was appropriately granted. Because the issues in Gabriel's complaint revolved around the same question of interpretation, the trial court correctly denied his motions for summary judgment and adjudication. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dispute
Canyon Haven is a condominium development in San Diego comprised of 74 units, 60 of which have upper-level balconies. Upon its development, a declaration of restrictions, including the CC&Rs involved here, was drafted and duly recorded. The HOA was established under the declaration to enforce the CC&Rs. Other relevant governing documents include the bylaws of the association and recorded condominium plans.
In 1985, Gabriel purchased and occupied a unit, which included a balcony. In 2005, in response to observations of water damage to balcony structures, HOA hired Southern Cross Property Consultants to inspect waterproofing systems, as well as the structural components of the decks and balconies in Canyon Haven. On two occasions, a licensed architect inspected Gabriel's balcony. The architect noticed deterioration and damage to many of the balconies and decks, including the waterproofing system on Gabriel's balcony, and forwarded those findings to HOA.
Based on HOA's reading of the CC&Rs governing the uses of units and common areas, and responsibilities for maintenance, HOA determined that individual owners would be responsible for repairs to the waterproofing system. HOA would assume the cost for any damage to the underlying structures due to water seepage. HOA informed owners of the necessary repairs, that HOA had retained a contractor to repair the balconies at the owners' expense, and that the owners could hire a private contractor if they wished.
Over several months, from January to May 2006, Gabriel disagreed with HOA that these repairs were his sole responsibility, by sending letters and appearing at HOA meetings. HOA sent Gabriel a letter dated February 14, 2006, pursuant to the notice requirements of the CC&Rs, informing him he had 30 days to repair the surface of his balcony. On March 24, 2006, Gabriel sent a letter to HOA stating he had retained a separate contractor to repair his balcony.
When no work had been done after two months, HOA had Gabriel's balcony resurfaced on May 23, 2006. HOA sent Gabriel an assessment for the work in the amount of $1,357.50. Gabriel refused to pay the assessment and this lawsuit ensued.
The total repair cost was $1,750, but HOA assumed $392.50 for the replacement of the handrails and portions of the balcony substructure. Other costs also were incurred.
B. The Pleadings
Gabriel filed a complaint alleging: (1) HOA breached the parties' contract through its interpretation of the CC&Rs, (2) Gabriel was entitled to injunctive relief through equitable apportionment of repair costs among all Canyon Haven residents, and (3) HOA negligently failed to adhere to the CC&Rs. HOA answered, denying most of the allegations in the complaint, as well as asserting numerous affirmative defenses. HOA also filed a cross-complaint, alleging: (1) breach of contract by Gabriel, (2) injunctive relief to remedy alleged interference and disruption by Gabriel, (3) nuisance, and (4) declaratory relief regarding the interpretation of the pertinent CC&Rs.
C. The Motions
Gabriel filed a motion for summary judgment or adjudication on the issue of the liabilities, duties, and obligations of HOA to Gabriel. Specifically, Gabriel sought a ruling that, as a matter of law, HOA had breached the CC&Rs by assessing him and other owners individually for repair/replacement that should either have been paid by HOA or apportioned equally among all owners. He would also draw a distinction between repairing a part of a waterproofing system (top surface), and replacing the entire system (membranes and underlying layers). Gabriel asserted that the only types of repairs required of him by the CC&Rs were those caused by him or his guests to the surface of the balcony.
HOA opposed the motion for summary judgment and filed its own cross-motion, seeking a judicial interpretation of the CC&Rs "that insofar as the waterproofing systems are concerned," individual homeowners are responsible for the repairs to their Exclusive Use Areas of the Common Area.
D. Trial Court's Ruling
Before the trial court finalized its ruling on the motions, the parties stipulated to a dismissal without prejudice of HOA's claims for injunctive relief and nuisance. Ostensibly, the parties entered into the stipulation so that the trial court's ruling would become a final judgment, and thus, appealable to this court.
We recognize that this stipulation practice to achieve finality of judgment is generally disallowed. (See Don Jose's Restaurant, Inc. v. Truck Ins. Exchange (1997) 53 Cal.App.4th 115, 117-119.) However, as HOA is the respondent in this case and any adjudication of the dismissed counts would not be predicated on the result of this appeal, this court has jurisdiction to hear this appeal. (See Vedanta Society of So. Cal. v. Cal. Quartet, Ltd. (2000) 84 Cal.App.4th 517, 525, fn. 8.)
After considering the motions and hearing oral argument, the trial court granted HOA's motion for summary judgment on its cross-complaint (as interlineated to dismiss the other causes of action). The trial court found that Gabriel's reading of Article V, sections 1 and 2 of the CC&Rs was unreasonable and did not take into account the other relevant portions of the CC&Rs, which justified HOA's actions. The trial court accordingly denied Gabriel's motions for summary judgment and adjudication in their entirety. The trial court entered judgment in favor of HOA in the amount of $1,575 with interest, and attorney fees and costs amounting to over $18,500. Gabriel appeals.
E. HOA's Motion to Strike Portions of Gabriel's Reply Brief
In this court, HOA filed a motion to strike the "Introduction" and "Factual and Procedural Background" sections of Gabriel's reply brief. HOA asserts that Gabriel includes numerous factual allegations in those sections without any appropriate cites to the record.
The rules of court require that the parties "support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) After reviewing the briefs, we strike the deficient portions of Gabriel's reply brief, as requested in the motion. Regardless of whether the record somewhere contains all or some of the new information, Gabriel's assertions in his reply brief based upon them are of little assistance to us, with regard to the legal questions actually posed by the cross-motions and appeal. The remainder of the reply brief has been duly considered; however, it appears to be merely copied and pasted material from Gabriel's other filings, again not advancing his arguments in any meaningful respect.
DISCUSSION
Gabriel contends the trial court erred in granting HOA's motion for summary judgment because triable issues of material fact remain, based on the evidence he submitted in opposition to HOA's summary judgment motion. Additionally, Gabriel argues "the Trial Court erred in not considering the age of the deck, the definition of the 'surface' area which is the only responsibility of the Homeowner, that all eighteen of the identical decks were deemed to have failed due to lack of maintenance, and that it was the Homeowner's Associations [sic] responsibility for the 'waterproofing system' of the deck." In seeking reversal of summary judgment in HOA's favor, Gabriel's main argument centers on the interpretation of "maintenance and repair" under the CC&Rs, as well as the interpretation of the provisions regarding Gabriel's exclusive right to use his balcony. (CC&Rs, Art. I, § 10; Art. II, § 2; Art. V, §§ 1, 2; all citations to the Articles are to the CC&Rs.) He also appears to rely on the bylaws to argue he should been assessed a lesser amount.
I
STANDARD OF REVIEW
We start by explaining the standard of review applicable to a grant of a motion for summary judgment. Gabriel frames his argument as an abuse of discretion. However, the correct standards require us to apply the rules outlined in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851:
"[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. . . . 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof . . . .' [Citation.] '[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. . . .' [The way in which] the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which [party] would bear what burden of proof at trial." (Aguilar, supra, 25 Cal.4th at pp. 850-851, fns. omitted.)
"Because a motion for summary judgment raises only questions of law, we independently review the parties' supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact." (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1345-1346.)
This case required the trial court, and now this court on de novo review, to interpret the CC&Rs and other governing documents. "The interpretation of CC&Rs is subject to the same rules governing the interpretation of contracts." (Christian v. Flora (2008) 164 Cal.App.4th 539, 551.) Interpreting a written document is a judicial function unless such interpretation turns upon the credibility of extrinsic evidence. (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 238, citing Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) The language of a contract, if clear and explicit, must govern its interpretation. (Civ. Code, § 1638; County of San Diego v. Ace Property & Cas. Ins. Co. (2005) 37 Cal.4th 406, 415.) We view specific language in light of the contract as a whole and, if possible, give effect to every provision. (Civ. Code, § 1641; County of San Diego v. Ace Property & Cas. Ins. Co., supra, 37 Cal.4th at p. 415.)
We first take note that Gabriel's argument that a triable issue of fact exists is inconsistent with the manner in which he pursed his claims in the trial court. Gabriel moved for summary judgment on the ground that, as a matter of law, the CC&Rs placed the responsibility of replacing the waterproofing system on HOA. By doing so, Gabriel claimed that no triable issue of fact existed. Now, on appeal, Gabriel contends there was a triable issue of fact, and judgment as a matter of law is improper. This seemingly contradictory approach aside, the proper procedure is for us to consider the record that was before the trial court, and interpret the CC&Rs and related documents de novo.
II
CC&RS APPLICABLE TO THE PRESENT DISPUTE
Although we review the CC&Rs and other governing documents as a whole, a few pertinent sections of the CC&Rs stand out as controlling in this case, for interpretation of the respective obligations of the parties. Article I, section 10 of the CC&Rs defines Exclusive Use Area as "those portions of the Common Area to which an exclusive right to use is granted to an Owner . . . and shall consist of Patios, Decks and Balconies." Article II, section 2 explains that "[e]xcept as otherwise provided herein, the Corporation acting through the Board and its officers shall have the sole and exclusive right and duty to manage, operate, control, repair, replace or restore all of the Common Area . . . as more fully set forth in this Declaration of Restrictions, the Articles and the Bylaws." [Italics added.]
Article IV, section 14 makes clear that each Exclusive Use Area shall be appurtenant to the condominium and used only for the purposes set out in the declaration. This section also explains that Exclusive Use Areas shall be deemed Common Area for all those purposes set forth in the declaration, that are not inconsistent with Article IV or Article V. Further, Article IV, section 15 gives owners with exclusive use balconies the right to place furniture, potted plants, or other landscaping on the balconies. Section 15 then states, "[e]xcept as provided in this Section 15, nothing contained herein shall give any Owner the right to paint, decorate, remodel or alter said Exclusive Use Areas or any other part of the Common Area without the prior written consent of the Board."
Article V discusses the responsibilities of HOA and individual owners with regard to maintenance and repair. Article V, section 1 states, in part: "Each Owner shall also be responsible for the maintenance of the areas which he has the exclusive right to use, and shall make repairs in such manner as shall be deemed necessary in the judgment of the Board to preserve the attractive appearance thereof and protect the value thereof." Article V, section 2 further provides:
"In the event an Owner fails to maintain the areas as set forth [in section 1], . . . or make repairs thereto in such a manner as shall be deemed necessary in the judgment of the Board to preserve the attractive appearance thereof and protect the value thereof, the Board shall give written notice to such Owner, stating with particularity the work of maintenance or repair which the Board finds to be required and requesting that the same be carried out within a period of thirty (30) days from the giving of such notice. In the event the Owner fails to carry out such maintenance or repair within the period specified by the notice, the Board shall cause such work to be done and shall assess the cost thereof to such Owner."
Based on these sections of the CC&Rs, Gabriel essentially argues that triable issues of material fact remain as follows: (1) what portion, if any, of the balcony is Common Area; and (2) what "maintenance" and "repair" mean under the CC&Rs.
III
CLASSIFICATION OF THE BALCONIES UNDER THE CC&RS
Because obligations for maintenance and repair hinge on whether the balcony or any portion of it (i.e. the surface) fit under the definition of Common Area, we must first ascertain how the CC&Rs treat balconies. Article I, section 10 defines balconies as part of the owner's "Exclusive Use Area" of the Common Area. However, Gabriel asserts that "[t]he decks, balconies and patios are clearly Common Area . . . . The Owner simply has a legal easement to use the surface of the deck." Essentially, Gabriel contends that while he can exclusively use the balcony, HOA has the entire or proportional responsibility to maintain and repair it.
Gabriel correctly states that the CC&Rs allocate responsibilities for maintenance and repair to HOA in many situations. Article II, section 2 does require HOA to "repair, replace or restore all of the Common Area." However, this same section further includes a qualifying phrase "[e]xcept as otherwise provided herein." Gabriel's reading omits that phrase, but the CC&Rs therefore include exceptions to the general duties of maintenance and repair that are delegated to HOA. The most salient exceptions to this case can be found in Article V, sections 1 and 2, which delegate the responsibilities of an individual owner for "the maintenance of the areas which he has the exclusive right to use, and [he] shall make repairs in such manner as shall be deemed necessary in the judgment of the Board to preserve the attractive appearance thereof and protect the value thereof." (Ibid.) Article V, sections 1 and 2 provide, as a whole, that individual owners are responsible for maintenance and repair to their Exclusive Use Areas of the Common Area, in this case, a balcony.
Gabriel attempts to avoid this clear and explicit reading of the CC&Rs by arguing that he is only responsible for the surface or a portion of it. His argument rests on a selective reading of Article IV, section 15. Although section 15 explains allowable uses on the surface of the decks, balconies or patios, it does not invalidate the other sections of the CC&Rs, which expressly make owners responsible for maintenance and repairs of areas they have exclusive rights to use (i.e. Article V, §§ 1 & 2). What uses the CC&Rs allow atop the balconies have no bearing on Gabriel's express responsibility for the maintenance of his balcony. We must next address what it means to maintain and repair under the CC&Rs.
IV
DEFINING MAINTENANCE AND REPAIR UNDER THE CC&RS
Gabriel contends a triable issue of material fact exists on what "maintenance" and "repair" mean under the CC&Rs. The CC&Rs contain no sections defining "maintenance" or "repair." After considering the plain language and common usage of the terms, and some explanatory case law, we conclude Gabriel's definitional arguments do not raise a triable issue of fact.
The term "maintenance" is generally defined as "[t]he care and work put into property to keep it operating and productive; general repair and upkeep." (Black's Law Dict. (8th ed. 2004) p. 973, col. 2.) This definition has been accepted by California courts. (See Valley Title Co. v. San Jose Water Co. (1997) 57 Cal.App.4th 1490, 1498; Piledrivers' Local Union v. City of Santa Monica (1984) 151 Cal.App.3d 509, 513 (Piledrivers' Local Union); People ex rel. Dept. Pub. Wks. v. Ryan Outdoor Advertising, Inc. (1974) 39 Cal.App.3d 804, 810.) Nothing in the plain language of the CC&Rs points to anything other than the commonly accepted meaning of maintenance. The common usage and California case law explain that maintenance, where tangible property is concerned, means general upkeep and repair. (See also Clay v. City of Los Angeles (1971) 21 Cal.App.3d 577, 585-586.)
The definition of repair can be established similarly from the plain language and common usage of the word. Repair is defined as "to restore by replacing a part or putting together what is torn or broken." (Webster's 3d New Internat. Dict. (2002) p. 1923, col. 3.) California courts have explained that "repair" means "to restore to a sound state something which has become partially dilapidated." (Piledrivers' Local Union, supra, 151 Cal.App.3d at p. 513; see also Jones v. Dutra Const. Co. (1997) 57 Cal.App.4th 871, 881-882) In Piledrivers' Local Union, a dispute arose over the replacement of beams, joists, and surface decking of a pier. The city hired a contractor to perform the work without accepting bids. The plaintiffs claimed that the city charter required bidding because the work constituted " 'construction or improvement' " and did not fit into the exception for "maintenance and repair." (Piledrivers' Local Union, supra, 151 Cal.App.3d at p. 512.) The court, after noting the amount of work performed on the pier and the ordinary definitions of "maintenance" and "repair," held that such work did not require the city to accept bids. (Id. at pp. 513-514.) The court explained "the City was engaged in repair and maintenance work within the meaning of [the charter]." (Ibid.)
Here, we perform a similar analysis, examining the nature of work performed by HOA in connection with the ordinary or common usages of the terms in the CC&Rs. Nothing in the CC&Rs suggests a different definition of "repair" than the common or ordinary usage.
Gabriel does not cite authority for his proposition that replacing the waterproofing system constitutes something more than repair. In any event, the courts have been wary of applying the term "repairs," where a whole new entity was created. The California Supreme Court has stated that "repair means to mend an old thing, not to make a new thing; . . . not to create something which has no existence." (Reality & Rebuilding Co. v. Rea (1920) 184 Cal. 565, 576.) A similar concern was expressed in Holland v. Braun (1956) 139 Cal.App.2d 626, involving the paving of a previously unpaved street, which the court held would not constitute " 'maintaining the road in repair.' " (Id. at p. 633.) Even though Gabriel asserts a comparable argument, that the removal and replacement of the waterproofing system essentially created something new, the undisputed facts here do not support such a conclusion. This waterproofing system existed as part of the balcony referred to in the CC&Rs, but through time and lack of maintenance, it had become worn. Moreover, replacement of a portion, to restore something to a sound state, fits within the plain meaning definition of the word "repair." (Webster's 3d New Internat. Dict., supra, p. 1923, col. 3; Piledrivers' Local Union, supra, 151 Cal.App.3d at p. 513.)
Further, Gabriel's fact-specific attempts to limit his responsibility to only the top layer of a multi-layer waterproofing system are unavailing. Technical distinctions between a waterproofing system and a waterproofing membrane, and conflicting definitions of "surface," do not contravene the plain language of the CC&Rs regarding an owner's responsibility to maintain and repair his Exclusive Use Area balcony.
Gabriel's remaining arguments that a triable issue of material fact exists are without merit. Gabriel asserts that HOA should "replace" the balconies because they had reached the end of their useful lives. HOA responds that Gabriel misinterprets a report done by the consulting firm at the request of the HOA. In this appeal on contract interpretation issues, extraneous facts pertaining to the useful life of the structure do not contradict our conclusion that any maintenance and repairs to the Exclusive Use Area balcony are the responsibility of Gabriel as the owner. (Art. I, § 10; Art. V, §§ 1, 2.) The age of the balcony and the fact that 18 decks required similar repairs do not change our interpretation of the CC&Rs, nor do they raise a triable issue of material fact. No factual determination on the meaning of that report or the remaining useful life for Gabriel's balcony is necessary to interpret the CC&Rs.
Accordingly, nothing in the CC&Rs suggests that the terms "maintenance" and "repair" refer to anything but their common use, plain language meanings, and the record reflects that the repairs to the waterproofing system constituted a repair from the result of a failure to maintain under the CC&Rs. A licensed architect determined that a failure to maintain the surface of the balcony, specifically the waterproofing system, had caused water to seep through and damage portions of Gabriel's deck. Gabriel failed to carry out necessary steps to care for and maintain the balcony as required by Article V, section 1 of the CC&Rs. HOA, under Article V, section 2, assessed Gabriel for the work it had done to restore and replace the waterproofing system to its proper condition. This work is, by the common usage definition, a repair. Also, Gabriel's assertion that the CC&Rs only require him to repair damage done by him or his guests is not supported by the language of the CC&Rs. As a matter of law, the repairs done by HOA to Gabriel's balcony were within the meaning on the CC&Rs, as was HOA's assessment of the cost.
V
CONCLUSION
In the alternative, Gabriel appears to rely on the HOA bylaws, for his argument that the HOA should either have paid for the repairs or spread the cost proportionally among the individual owners. This assessment argument fails because it is premised on Gabriel's erroneous reading of the CC&Rs and the bylaws to designate the balcony as solely a Common Area. As we have explained, the balcony is an Exclusive Use Area of the Common Area. Based on this interpretation, Gabriel's argument based on quotations of language in the bylaws regarding regular and special assessments for "those portions of the Common Area which must be replaced on a periodic basis," rests on a faulty premise. Nothing in the bylaws negates Gabriel's duty to maintain and repair his Exclusive Use Area of the Common Area, i.e. his balcony.
Next, the CC&Rs allow HOA to assess individual owners for work done to repair Exclusive Use Areas of the Common Area under Article V, section 2. Neither the CC&Rs, nor the bylaws, require regular or special assessments for repairs done to Gabriel's exclusive use balcony's waterproofing system.
Finally, although Gabriel does not challenge the amount of the judgment or the contractual attorney fees award, obviously his case should have been filed in small claims court. At least one other Canyon Haven resident brought a similar action in small claims court. Here, the amount in controversy was at all times only $1,575 plus applicable interest. Small claims courts have jurisdiction over matters not exceeding $5,000. (Code Civ. Proc., § 116.220, subd. (a).) Moreover, small claims courts may fashion certain types of equitable relief. (Code Civ. Proc., § 116.220, subd. (b).) Because no party may be represented by an attorney in small claims court (Code Civ. Proc., § 116.530), Gabriel could have also saved more than $17,000 in HOA's attorney fees, plus some costs. This case has come to us on appeal from an unlimited civil case that caused great expenditure of the trial court's time. While the plaintiff has the right to seek relief in a trial court of unlimited jurisdiction, we must express some frustration that a dispute of such limited financial nature has not only consumed a great amount of trial court resources, but has been so costly to the litigant.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: BENKE, Acting P. J. AARON, J.