Opinion
D077119
06-17-2021
DAVID N. HARTER, Plaintiff and Appellant, v. RANCHO RIOS HOMEOWNERS ASSOCIATION, Defendant and Respondent.
David N. Harter, in pro. per., for Plaintiff and Appellant. Grimm, Vranjes & Greer, Mark Vranjes and Charles A. Phillips for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2019- 00022444-CU-WM-CTL Eddie C. Sturgeon, Judge. Affirmed.
David N. Harter, in pro. per., for Plaintiff and Appellant.
Grimm, Vranjes & Greer, Mark Vranjes and Charles A. Phillips for Defendant and Respondent.
AARON, J.
I.
INTRODUCTION
David N. Harter filed a petition for writ of mandate against the Rancho Rios Homeowners Association (Association). In his petition, Harter sought a writ directing the Association to release a lien that the Association filed on his property to secure unpaid assessments owed to the Association. The Association filed a demurrer to the petition in which it raised several arguments, including that Harter's petition was moot because the lien had been foreclosed and Harter's property sold at an auction. The trial court sustained the Association's demurrer without leave to amend and denied Harter's petition.
All subsequent statutory references are to the Code of Civil Procedure, unless otherwise specified. Harter appeared in the trial court and in this court in propria persona. A supervising judge of the superior court granted Harter, a vexatious litigant, permission to file this litigation. (See Code Civ. Proc., § 391.7, subd. (b).)
On appeal, Harter's opening brief raises three separately captioned arguments titled “Demurrer, ” “Substantial Evidence, ” and “Breach of Discretion.” In the section titled “Demurrer, ” Harter contends that the Association's demurrer was invalid because the Association failed to meet and confer with him before filing its demurrer, as is required by statute. Harter also argues that the trial court abused its discretion in sustaining the Association's demurrer without leave to amend because, he maintains, he could file a complaint on remand that states valid causes of action for declaratory relief and to set aside the foreclosure sale. Harter's “Substantial Evidence, ” argument contains a list of purported improprieties pertaining to the Association's lien and the subsequent foreclosure sale. In this section of his brief, Harter also argues that the trial court's order denying his petition for writ of mandate responded to arguments that he did not present in the petition. Finally, in the argument titled “Breach of Discretion, ” Harter contends that “[t]he foreclosure against Harter's unit was, for the most part, conducted by agents whose contracts [with the Association] have been withheld from Harter.”
We conclude that none of these contentions has merit and affirm the judgment.
In part III, post, after concluding that Harter's appeal is timely (see pt. III.A, post), we address each of the separately captioned arguments in Harter's opening brief in the order in which they are presented. (See pt. III.B-D, post.) Harter also raises several arguments for the first time in his reply brief, without presenting any good cause for not having raised them in his opening brief. We decline to address the issues raised for the first time in reply. (See Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10 [“ ‘ “points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before”' ”].)
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Association's pre-lien letter
In February 2017, the Association's counsel sent Harter a certified letter indicating that he owed $995.00 in unpaid assessments.
B. The Association's lien and notice of delinquent assessment
On April 3, 2017, the Association's counsel recorded a lien in the amount of $1,717 against Harter's property pursuant to Civil Code section 5675 due to Harter's failure to pay certain assessments and charges. The lien attached an exhibit showing the dates on which the charges were incurred. The following day, the Association sent Harter a notice of delinquent assessment together with a copy of the lien.
Civil Code section 5675 is a provision in the Davis-Stirling Common Interest Development Act (Davis-Stirling Act). (See Civ. Code, § 4000 et seq.) “The Davis-Stirling Act governs the creation and operation of common interest developments.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)
C. The Association's notice of default and election to sell
In August 2018, the Association's trustee recorded a Notice of Default and Election to Sell Under Property Association Lien that indicated that Harter owed $5,512 and stated that Harter's property might be sold without court action.
D. The Association's notice of trustee sale
On or about April 18, 2019, the Association's trustee filed a Notice of Trustee's Sale against Harter's property warning that, “unless you take action to protect your property, ” (capitalization omitted) the property might be sold at auction on May 20, 2019. The notice of sale indicated that the total amount owed was $12,170.13.
E. Harter's writ petition
On May 1, 2019, Harter filed a petition for writ of mandate seeking a writ “commanding [the Association] to cause the filing of a release of lien regarding the lien filed by [its counsel] against [Harter's] real property... on or about April 3, 2017.” Harter raised numerous arguments in support of his request, including that the lien was invalid because the Association's collection policy had not been validly adopted. Harter also contended that the Association had engaged in numerous “collection irregularities” that rendered the lien invalid.
F. The non-judicial foreclosure sale of Harter's property
On May 23, 2019, the Association's trustee recorded a Certificate of Non-Judicial Foreclosure Sale Subject to Redemption stating that Harter's property had been sold at public auction on May 20, 2019.
(See Civ. Code, § 5715, subd. (b) [“A nonjudicial foreclosure by an association to collect upon a debt for delinquent assessments shall be subject to a right of redemption. The redemption period within which the separate interest may be redeemed from a foreclosure sale under this paragraph ends 90 days after the sale.... [A] notice of sale in connection with an association's foreclosure of a separate interest in a common interest development shall include a statement that the property is being sold subject to the right of redemption created in this section”].)
G. The Association's demurrer
In August 2019, the Association filed a demurrer to Harter's writ petition. The Association's demurrer raised numerous arguments, including that Harter's petition failed to state a cause of action because Harter admitted having failed to pay assessments that were owed and the claims that he raised in his petition related to irrelevant procedural matters and not to the debt owed. The Association also argued that Harter's petition was moot because the Association had already foreclosed on the lien, and that his challenges to the Association's governing documents were time-barred.
H. Harter's brief in support of his petition
It appears that Harter filed a brief in support of his writ petition in August 2019. Harter raised numerous arguments in his brief in support of his petition, including that the Association should be subject to the doctrine of “unclean hands” for failing to produce its contract with its counsel, and that Harter sought to “block the Board [of the Association]'s authority to ratify the unauthorized actions of both the collections and foreclosing agents.” Harter also argued that the Association's master insurance policy and the Association's exterior maintenance program on which some of the unpaid assessments were based, were invalid.
The brief contained in the appendix is not file stamped.
Harter referred to these arguments as “Felony Extortion #1” and “Felony Extortion #2, ” respectively.
I. The trial court's ruling
On August 16, after a hearing, the trial court sustained the Association's demurrer without leave to amend and denied Harter's writ petition. The trial court reasoned in relevant part:
“Association's demurrer to... Harter's writ of mandate is sustained, without leave to amend. [Harter's] writ of mandate is denied....
“The court agrees with the analysis set forth by the court in Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 253, that the board has broad discretion to delegate duties in order to discharge its obligations under the bylaws. The court does not find the reasoning limited only to repairing common areas, but also to the retention of a law firm, with the subsequent ability to choose who to proceed with foreclosure duties [sic]. Thus, [Harter's] claims [that] the foreclosure trustee was not properlyappointed by the [A]ssociation, or the lien was improperly recorded, or the [A]ssociation failed to complywith statutory requirements are unsupported.”
J. Harter's notice of appeal
On December 6, 2019, Harter filed a notice of appeal from the August 16 ruling.
Harter's notice of appeal also referenced an October 11, 2019 order awarding the Association attorney fees. However, Harter does not present any argument on appeal concerning this order. Thus, any arguments pertaining to the propriety of the trial court's October 11, 2019 attorney fee order are abandoned. (Briganti v. Chow (2019) 42 Cal.App.5th 504, 510 [“Chow failed to raise this argument on appeal, however. We therefore treat it as abandoned”].)
K. The trial court's February 21 “judgment”
On February 21, 2020, the trial court entered a formal “judgment” of dismissal in favor of the Association.
III.
DISCUSSION
A. Harter's appeal is timely
While this appeal was pending, we solicited and received letter briefs from the parties pertaining to whether Harter's December 6, 2019 notice of appeal was timely insofar as Harter sought to appeal from the trial court's August 16, 2019 ruling denying his writ petition. (E.g., Drum v. Superior Court (2006) 139 Cal.App.4th 845, 849 [“because the timeliness of an appeal poses a jurisdictional issue, we must raise the point sua sponte”].)
An order denying a petition for writ of mandate in its entirety that contemplates no further action in the case constitutes a final judgment. (See Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582-583 [concluding that a ruling granting or denying a petition for writ of mandate that disposes of all of the claims between the parties is an immediately appealable final judgment].) We assume for purposes of this opinion that the trial court's August 16 ruling constituted a final judgment and that the February 21 “judgment” did not restart the time to file an appeal. (See id. at p. 583 [“The Rules of Court do not provide, once a judgment or appealable order has been entered, that the time to appeal can be restarted or extended by the filing of a subsequent judgment or appealable order making the same decision”].) However, even if that is so, Harter's appeal is timely for the following reasons.
As applicable here, California Rules of Court, rule 8.104(a)(1) (Rule 8.104) provides that “a notice of appeal must be filed on or before the earliest of”:
“(B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or
“(C) 180 days after entry of judgment.”
While the record contains an August 19, 2019 “Notice of Ruling, ” pertaining to the August 16 ruling, unlike a “Notice of Entry, ” a “notice of ruling” is not sufficient to trigger the 60-day period provided in Rule 8.104(a)(1)(B). (See, e.g., Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399 [“serving a notice of ruling is not the same as serving... a notice of entry of the order, as contemplated by the rules governing the timeliness of appeals”]; 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 672 [“It might seem that the difference between a ‘notice of ruling' and a ‘notice of entry' is hypertechnical. In another context it might be”].)
In addition, while the Association's August 19 “Notice of Ruling” attached a copy of the trial court's tentative August 16 ruling and stated that the trial court had confirmed the tentative ruling at an August 16 hearing, the Association did not serve “a file-endorsed copy” (Rule 8.104(a)(1)(B)) of the August 16 ruling.
Thus, the record does not demonstrate that either a “ ‘Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service” pertaining to the August 16 ruling, was ever served on, or by, Harter. (Rule 8.104(a)(1)(B).) Accordingly, the 180-day period in Rule 8.104(a)(1)(C) is the applicable period within which Harter was required to file his notice of appeal. Because Harter filed his appeal on December 6, 2019, which is within 180 days of August 16, 2019, the appeal is timely.
Accordingly, we conclude that we have appellate jurisdiction over Harter's appeal.
B. Harter is not entitled to reversal of the trial court's order sustaining the Association's demurrer without leave to amend
In the section of his brief titled “Demurrer, ” Harter claims that he is entitled to reversal of the trial court's order sustaining the Association's demurrer without leave to amend for two reasons. First, Harter contends that the Association failed to follow the meet and confer process provided in section 430.41, before filing its demurrer. Second, Harter claims that the trial court erred in sustaining the Association's demurrer without leave to amend because he could file a complaint on remand that states valid claims for declaratory relief and to set aside the foreclosure sale. We consider each argument in turn.
Harter's “Demurrer, ” argument does not raise any substantive challenge to the trial court's sustaining of the Association's demurrer to the writ petition.
1. Harter is not entitled to reversal due to the Association's alleged failure to meet and confer with Harter before filing its demurrer
Harter claims that the Association's demurrer was “legally insufficient, ” because the Association made no offer to meet and confer before filing it.
a. Governing law
A party may respond to a writ petition by way of demurrer (§ 1089) because “[a] proceeding in mandamus is generally subject to the general rules of pleading applicable to civil actions.” (Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 271, citing, inter alia, § 1109.)
One of these general rules of pleading is the “meet and confer” process specified in section 430.41. Section 430.41 provides, in relevant part:
“(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.... [¶]... [¶] (2) [I]f the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading....”
However, section 430.41 does not contain any penalties for the failure to follow the meet and confer process set forth in the statute. Indeed, section 430.41, subdivision (a)(4) provides:
“Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”
In Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 515 (Olson), the Court of Appeal discussed section 430.41, subdivision (a)(4) in concluding that a party's alleged failure to meet and confer prior to the filing of its demurrer did not cause the trial court to lose jurisdiction of the pleadings. The Olson court reasoned:
“[S]ection 430.41 does not contain any penalties for the failure to follow the meet-and-confer process set forth in subdivision (a)(1).... Thus, even if the District did not comply with the meet-and-confer requirements, we do not agree with plaintiffs that the consequence of that failure is for the court to lose jurisdiction over the pleadings.” (Olson, supra, at p. 515.)
(Accord Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355 (Dumas) [“We need not address the adequacy of the County's efforts to meet and confer, as any insufficiency in the process would not undermine the trial court's ruling on the County's demurrer”].)
b. Factual and procedural background
On June 26, 2019, the Association filed a motion requesting that Harter be required to post security in order to continue with the litigation as a vexatious litigant. (§§ 391.1, 391.6.) Two days later, Harter filed an ex parte application for an order shortening time for a hearing on his petition for writ of mandate. On July 22, the trial court required Harter to post a $30,000 bond to continue with the litigation.
The trial court held a hearing on the matter on August 6. At the hearing, the court informed the parties that Harter had posted the required security. Harter informed the court that the redemption period on his property would expire just 12 days later, on August 18. In light of this information, the trial court set an expedited schedule for the hearing on Harter's writ petition, explaining that the hearing on the petition would be held on August 16. The Association filed a demurrer on August 14.
Harter did not file an opposition to the demurrer. However, at the August 16 hearing on the Association's demurrer and Harter's writ petition, Harter contended that the Association had failed to meet and confer before filing the demurrer. Harter argued that the Association's demurrer was therefore “defective.”
The trial court rejected Harter's argument, stating:
“Because of the short setting and this court had to short set everything, that motion is denied. Move on.”
c. Application
The record is clear that the trial court expedited the proceedings in order to provide Harter with a ruling on his writ petition prior to the expiration of the redemption period on the property. However, even assuming that the trial court erred in excusing the Association from the meet and confer requirement, the law is clear that any such failure would not provide a basis for reversal. (See Olson, supra, 33 Cal.App.5th at p. 515; Dumas, supra, 45 Cal.App.5th at p. 355.)
Accordingly, we conclude that Harter is not entitled to reversal of the trial court's order sustaining the Association's demurrer based on the Association's alleged failure to comply with the meet and confer process specified in section 430.41.
2. Harter has not demonstrated that he could state a valid cause of action for either declaratory relief or to set aside the foreclosure sale
In light of these circumstances, we question whether it would be procedurally proper for this court to remand to allow Harter to file a new pleading in this action. However, we need not address these procedural issues given our conclusion in this section that Harter has not demonstrated that he could state a valid cause of action on remand. There are a number of unusual procedural circumstances related to Harter's request for a remand to file a complaint for declaratory relief and set aside the foreclosure sale. First, the trial court did not merely sustain the Association's demurrer without leave to amend; the trial court also denied Harter's petition for writ of mandate. Harter fails to present any basis for reversal of the trial court's denial of his writ petition. Second, while Harter filed a petition for writ of mandate seeking a writ directing the Association to release the lien on his property, he seeks a remand to file a complaint in which he proposes to raise entirely different claims. Finally, Harter is a vexatious litigant and it appears that he would have to obtain permission to file a complaint on remand (see § 391.7).
Harter claims that the trial court erred in sustaining the Association's demurrer without leave to amend. He contends that he could file an amended complaint on remand stating valid claims for declaratory relief and to set aside the foreclosure sale.
a. Governing law and standard of review
“A demurrer tests the legal sufficiency of the complaint.” (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1608.) “When a demurrer is sustained without leave to amend, ‘we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.' [Citation.] Plaintiff has the burden to show a reasonable possibility the complaint can be amended to state a cause of action.” (Id. at p. 1609.) “ ‘To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action.' ” (Total Call Internat., Inc. v. Peerless Ins. Co. (2010) 181 Cal.App.4th 161, 166; see, e.g., People ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112 [appellant has a “duty to spell out in his brief the specific proposed amendments on appeal”].)
b. Application
i. Declaratory relief
(a.) The nature of a declaratory relief cause of action
“ ‘[D]eclaratory procedure operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.' ” (Babb v. Superior Court (1971) 3 Cal.3d 841, 848.) “[A] declaratory action to identify rights is distinct from a coercive action to enforce rights.” (Caira v. Offner (2005)126 Cal.App.4th 12, 24.)
“ ‘The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.' [Citation.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79, italics omitted.) In order for a party to state a cause of action for declaratory relief, “the probable future controversy must be ripe. [Citation.]” (Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 885.) “A ‘controversy is “ripe” when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.' ” (Ibid.) “A ripeness inquiry involves a two-step analysis: First, whether the issue is appropriate for immediate judicial resolution; and second, whether the complaining party will suffer a hardship from a refusal to entertain its legal challenge. [Citation.] [¶] Under the first test, ‘ “courts will decline to adjudicate a dispute if ‘the abstract posture of [the] proceeding makes it difficult to evaluate... the issues' [citation], if the court is asked to speculate on the resolution of hypothetical situations [citation], or if the case presents a “contrived inquiry' [citation].” [Citation.]' [Citation.] [¶] Under the second test, courts generally will not consider issues based on speculative future harm. [Citation.] This is particularly true where the complaining party will have the opportunity to pursue appropriate legal remedies should the anticipated harm ever materialize. [Citation.]” (Metropolitan Water Dist. of Southern California v. Winograd (2018) 24 Cal.App.5th 881, 892-893.)
(b) Harter fails to demonstrate that he could adequately allege a cause of action for declaratory relief
Harter claims that “there are a significant number of ongoing issues that are ripe for litigation via declaratory relief.... Harter then lists a number of purported “ongoing issues, ” including the following:
“1. In giving notice of meetings, etc, if the language used in the notice is vague and/or ambiguous, i[s] proper legal notice actually given?
“2. Under the [Davis-Stirling Act], can an agent assume the authority to act on behalf of [the Association] if [the Association's] Board fails to provide instruction or the instructions are too vague or ambiguous?
“3. Under the [Davis-Stirling Act], can an agent get his/her instructions to act on behalf of [the Association] from any other source other than the minutes?”
The record indicates that the Association has foreclosed on the prior lien on Harter's property and that the redemption period provided in Civil Code section 5715 has expired. (See fn. 4, ante.) Harter's identification of a series of hypothetical questions concerning the application of the Davis-Stirling Act does not constitute “pleaded facts” that “show the existence of an actual controversy between appellants and respondents.” (Californians for Native Salmon etc. Assn. v. Department of Forestry (1990) 221 Cal.App.3d 1419, 1426-1427.) Moreover, Harter has failed to demonstrate that he could allege that there is a current ripe controversy “appropriate for immediate judicial resolution, ” or that he “will suffer a hardship from a refusal to entertain [his] legal challenge.” (Metropolitan Water Dist. of Southern California, supra, 24 Cal.App.5th at p. 892.) Rather, Harter's list of questions is indicative of an action that would ask a court “to speculate on the resolution of hypothetical situations.” (Ibid.) In addition, Harter has failed to demonstrate that, in the event that the Association subjects his property to a lien for unpaid assessments in the future, he will not “have the opportunity to pursue appropriate legal remedies.” (Id. at p. 893.)
In the present ligation, the record indicates that the Association filed the lien that led to foreclosure proceedings in April 2017 and that Harter filed his petition for peremptory writ in May 2019. (See pt. II, ante.)
Accordingly, we conclude that Harter has failed to demonstrate that he could state a valid cause of action for declaratory relief.
ii. Action to set aside foreclosure sale
Harter claims that he could state a claim to set aside the foreclosure sale.
“After a nonjudicial foreclosure sale has been completed, the traditional method by which the sale is challenged is a suit in equity to set aside the trustee's sale. [Citation.] Generally, a challenge to the validity of a trustee's sale is an attempt to have the sale set aside and to have the title restored. [Citations.]” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 103 (Lona).) “Case law instructs that the elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” (Id. at p. 104, italics added.)
Although Harter has not cited any applicable authority, we assume for purposes of this opinion that an action may be brought to set aside a nonjudicial foreclosure sale based on a lien recorded by a homeowner's association pursuant to section 5716, subdivision (b) of the Davis-Stirling Act, such as the sale at issue in this case.
With respect to the final element, Harter has not established that he could allege that he tendered the amount of the secured indebtedness or that he was excused from doing so. (Lona, supra, 202 Cal.App.4th at p. 103.) While Harter refers to various unspecified occasions in the past on which he made a “cash payment” offer to “bring his account current, ” he does not state that he could allege a specific instance during which he tendered the amount of secured indebtedness. In addition, Harter acknowledges that his payment offers were in “cash, ” notwithstanding that, as Harter acknowledges in his brief, the Association's 2014 Collection Policy (Collection Policy) states “payment must be made by check or certified funds.” While Harter asserts in his brief that the Collection Policy “was never valid, ” he has not demonstrated that a court has invalidated the policy. Thus, Harter has not demonstrated that he could validly allege this element of his claim to set aside the foreclosure sale.
The April 18, 2019 Notice of Trustee's Sale indicated that the delinquent assessment and associated charges were estimated to be $12,170.13. The May 23, 2019 Certificate of a Non-Judicial Foreclosure Sale indicated that the unpaid debt and costs totaled $14,082.61.
Harter does state that he “redeemed [the property].” However, Harter never specifically stated that he could allege that he had “tendered the amount of the secured indebtedness or was excused from tendering.” (Lona, supra, 202 Cal.App.4th at p. 104.) In any event, assuming that Harter did tender the amount of secured indebtedness and that, as he states in his reply brief, he “still own[s] [the property], ” any claim to set aside the foreclosure sale and “to have the title restored” to Harter (Lona, supra, at p. 103) would be moot. (Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503 (Simi Corp.) [“A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief”].)
In either instance, we conclude that Harter has not carried his burden of showing a reasonable possibility that he could state a cause of action to set aside the foreclosure sale.
In light of this conclusion, we need not consider whether Harter has demonstrated that he could validly allege any of the other elements of a cause of action to set aside the foreclosure sale.
c. Conclusion
We conclude that Harter has not demonstrated that he could state a valid claim for either declaratory relief or an action to set aside the foreclosure sale. Accordingly, we conclude that Harter has not demonstrated that the trial court erred in sustaining the Association's demurrer without leave to amend.
C. Harter's “substantial evidence” argument is without merit
In an argument captioned “Substantial Evidence, ” Harter appears to raise two arguments, neither of which provides a basis for reversal. First, he contends that he presented evidence of multiple improprieties in the manner by which the Association foreclosed on his property. Specifically, he states:
“Harter presents evidence of multiple procedural
violations of [Civil Code, § 4000 et seq.] and/or [the Association's] governing documents that include, but are not limited to:
“1. Lien filed in error in ways similar to [Diamond v. Superior Court (2013) 217 Cal.App.4th 1172, 1195].
“2. Board's failure to establish payment ‘due dates' as required by the CC&Rs.
“3. Lien filed on April 3, 2017 against Harter by [the Association] was filed in error
“4. Payment plan irregularities
“5. Irregularities in amount of alleged debt
“6. Multiple collection policies
“7. Inspection rights violations
“8. Service of process irregularities”
Even if we were to overlook the lack of any supporting record citations in Harter's substantial evidence argument (Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 514 [“[a]s in all appeals, the appellant has the burden to show, through analysis and citation to the record, that no substantial evidence supports the court's findings”]), Harter's claim fails because the record indicates that the lien that Harter sought to have “release[d]” by his writ petition has been foreclosed and that the redemption period has expired. Thus, the petition for writ of mandate in which Harter sought “a peremptory writ in the fírst instance commanding [the Association] to cause the filing of a release of lien regarding the lien filed by [the Association's counsel] against [Harter's] real property, ” is moot. (See Simi Corp., supra, 109 Cal.App.4th at p. 1503.) Even if Harter were to prevail in his appeal, this court could not order that the lien be released, because it has already been foreclosed and the period of redemption has ended.
As noted in part III.B, ante, Harter “claims to still own [the property] having exercised his redemption rights.” However, even assuming that Harter successfully redeemed the property, his petition for writ of mandate seeking to release the lien that he claims to have redeemed would be moot. (See Simi Corp., supra, 109 Cal.App.4th at p. 1503.) Harter also contends that his petition is not moot because, if that were so, “the object of the contract between [the Association] and [its counsel], which was to use [the Association's] lien/foreclosure rights to force payment of assessment dues, would have been extinguished.” We are unpersuaded. Evidence that the Association's counsel continued to represent the Association after the foreclosure is inapposite to the question of whether Harter's writ petition is moot. As discussed above, mootness is determined by whether the court can grant effective relief in the action (ibid.), not by whether the opposing party continues to engage counsel to defend itself against the litigation.
There is no evidence in the record as to whether Harter has or has not redeemed the property.
To the extent that Harter intends this list of purported improprieties as to the manner by which the Association foreclosed on his property to support his request to allege new causes of action on remand, he fails to demonstrate how any such alleged evidence pertains to the new causes of action that he intends to allege.
Second, Harter contends that the trial court's order denying his petition referenced “misplaced arguments, ” (underscore omitted) that pertained only to a proposed amended writ petition that he never filed. Even assuming that Harter is correct, the fact that the trial court's order sustaining the Association's demurrer to Harter's original writ petition without leave to amend also referred to arguments pertaining to Harter's proposed amended petition for writ of mandate does not provide a basis for reversing the trial court's order.
In his briefing in the trial court on the writ petition, Harter presented some of the arguments to which he now claims the trial court erred in responding.
Harter also contends that the Association's arguments in the trial court that his proposed amended petition for writ of mandate would be barred by res judicata and collateral estoppel, are without merit because the prior proceedings involved orders secured by the “alter ego [of the Association], ” and, according to Harter, he is not in “privity with [the] alter ego [of the Association].” (Italics added.) Without suggesting that this argument has any merit, Harter's contention provides no basis for reversal because Harter never filed the proposed amended writ petition in the trial court, and on appeal he seeks a remand to file an amended complaint for declaratory relief andto set aside the foreclosure sale, not an amended writ petition.
Accordingly, we conclude that the argument captioned “Substantial Evidence” in Harter's opening brief is without merit.
D. Harter's “breach of discretion” argument is without merit
In an argument captioned “Breach of Discretion, ” Harter contends that the foreclosure of his property was conducted by “agents whose contracts have been withheld from Harter.” Specifically, Harter contends that the Association improperly refused to permit him to inspect the Association's contract with its counsel, citing attorney client privilege. Harter appears to contend that this assertion of privilege was improper. (Citing Civ. Code, § 5215, subd. (a)(5)(D).)
“(a) [T]he association may withhold or redact information from the association records if any of the following are true: “[¶]... [¶] “(3) The information is privileged under law. Examples include documents subject to attorney-client privilege or relating to litigation in which the association is or may become involved, and confidential settlement agreements. “[¶]... [¶] “(5) The information contains any of the following: “[¶]... [¶] “(D) Minutes and other information from executive sessions of the board..., except for executed contracts not otherwise privileged. Privileged contracts shall not include contracts for maintenance, management, or legal services.” Civil Code section 5215 provides in relevant part:
Without suggesting that Harter was entitled to inspect the Association's contract with its counsel representing it in the foreclosure of a lien on his property, Harter's claim fails because he has not demonstrated how any purported failure to permit Harter to inspect such contract would invalidate the lien or permit Harter to state his claim for declaratory relief or to set aside the foreclosure sale.
As noted in footnote 18, ante, Civil Code section 5215 provides that a homeowner's association may withhold information on the ground that it is subject to “attorney-client privilege or relating to litigation in which the association is or may become involved.” (Id., subd. (a)(3).) Harter fails to demonstrate that Association's contract with its counsel was subject to disclosure pursuant to Civil Code section 5215, subdivision (a)(5)(D), which pertains in part to “executed contracts.” (See Civ. Code, § 1661 [“An executed contract is one, the object of which is fully performed”].) Harter did not demonstrate that the object of the Association's contract with its counsel was fully performed.
It is not clear from Harter's brief whether he intends for this argument to support reversal of the trial court's denial of the petition for writ of mandate, or to support his claim that he could allege new causes of action on remand.
IV.
DISPOSITION
The judgment is affirmed. Harter is to bear costs on appeal.
WE CONCUR: HALLER, Acting P. J.GUERRERO, J.