Opinion
2d Civil No. B223628 Super. Ct. No. 56-2008-00313595-CU-BC
02-02-2012
PAUL LEWOW, Plaintiff and Appellant, v. SURFSIDE III CONDOMINIUM OWNERS' ASSOCIATION, Defendant and Respondent.
Susan J. Salehi, for Appellant. William M. Slaughter, Gabriele M. Lashly; Proctor, Slaughter & Reagan, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Paul Lewow (appellant) is the owner of a unit in a common interest development: Surfside III. He filed a seven-cause-of-action complaint against Surfside III Condominium Owners' Association. (Association). Appellant appeals from the judgment rendered in favor of Association after a court trial. He contends that the trial court erroneously (1) limited him to a single cause of action for enforcement of equitable servitudes, (2) refused to grant injunctive relief, (3) refused to award him damages for the cost of repairing his own unit in Surfside III, and (4) determined that Association is the prevailing party and therefore entitled to recover its reasonable attorney fees. We affirm.
At pages 20-23 of his opening brief, appellant lists 12 "questions presented" for consideration by this court. We do not consider all 12 questions because our resolution of the above four issues either resolves the questions or renders them moot.
Factual and Procedural Background
"Surfside III is a 309 [unit] condominium/townhome community in 8 buildings covering 15 acres adjacent to the ocean in Port Hueneme." It was "built in the mid 1970's" and is governed by a declaration of covenants, conditions, and restrictions (CC&Rs) recorded in 1976.
In 1999 appellant purchased a unit in Surfside III. In 2008 he filed against Association a complaint consisting of seven causes of action: negligence, breach of contract, enforcement of equitable servitudes, negligent misrepresentation, breach of fiduciary duty, fraud, and nuisance. The gravamen of the complaint is that Association failed to perform its duty of maintaining and repairing the common areas of Surfside III. Furthermore, Association allegedly failed (1) "to properly assess and collect monthly dues in sufficient amounts to properly maintain the common areas," and (2) "to maintain adequate reserve funds as provided by the CC&R's."
The case was tried to the court in August and September 2009. At the beginning of the trial, the court "ruled that the only viable cause of action was that for enforcement of equitable servitudes in the f[or]m of the CC&R's." The court concluded that the remaining causes of action were not viable because, as a matter of law, appellant could not recover damages for Association's alleged failure to maintain and repair the common areas. On the other hand, the court determined that appellant was "entitled to demonstrable damage to [his own] unit based on improper conduct of the [A]ssociation."
Viewed in the light most favorable to the judgment, the evidence shows the following. In August 2005 The G.B. Group, Inc., a construction services company, prepared a detailed report summarizing the cost of repairing the common areas of Surfside III. The total estimated cost was originally $15 million, but it was later increased to $17.6 million. In November 2005 Association's Board of Directors (the Board) imposed "an Emergency Special Assessment of $2,000 per unit to pay for extraordinary expenses necessary to maintain and repair the project." In May 2006 the Board imposed an additional special assessment of $20,000 per unit. The Board "gave priority to [repairing] the waterlines, the drain lines, and the elevators" because they "represented issues of life safety for the [A]ssociation."
"[I]n summarizing the facts on appeal we 'must consider the evidence in the light most favorable to the prevailing party, giving him the benefit of every reasonable inference, and resolving conflicts in support of the judgment.' [Citation.]" (Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 642, fn. 3.)
To oversee the repairs, Association hired Stonemark Construction Management (Stonemark), owned by Barton Mendel. Mendel is a licensed general contractor and has been in the business for 30 years. When Mendel first visited Surfside III, the physical condition of the complex was "right on average" except for the plumbing. There were multiple plumbing problems caused by defective piping and faulty installation, not improper maintenance. As to the cast-iron waste lines, Bendel explained that they were not properly supported with clamps. The lack of support created "stresses on the pipe." Testing of the waste lines at a metallurgical laboratory showed "what's called residual stress," which occurs during manufacturing when the pipe is "cooled too quickly." Moreover, the waste lines could not be properly maintained because "there were no or very, very limited cleanouts" in those lines. Mendel opined that plumbing "typically lasts 75 years . . . if it's installed properly and doesn't have defects."
At the time of trial, Mendel was not "aware of any current life safety issues" at Sufside III. Contractors had completed interior mold remediation and repairs to the elevator shafts. In five of the eight buildings that comprise Surfside III, plumbing repairs had been completed. Plumbing repairs for the remaining three buildings had been completed except for the cast-iron waste lines. The replacement of these lines was scheduled to begin six days after Mendel's trial testimony. Mendel estimated that it would take approximately six months to complete the replacement.
James Sutton is a building inspector for the City of Port Hueneme. He inspected the plumbing and elevator repairs and found them to be satisfactory. Sutton confirmed that the plumbing repairs were complete except for the replacement of the waste lines in three buildings.
William Betts, the president of the Board, testified that he was drafting a capital replacement plan that assumed Association would receive a $4 million loan. Association's application for the loan was still in the underwriting phase. If Association receives the loan, Betts opined that, with one exception, all of the repairs recommended by The G.B. Group will be completed by the end of 2011. The exception is repairs to the roofs, which will be deferred because the roofs have not yet reached the end of their useful lives.
After the trial, the court issued a statement of decision. The court found as follows: "[B]y 2000, Surfside III was becoming run down at the heels and its then Board was slow to react. Some of the problems were cosmetic, but what was developing into a significant problem was that of the fresh water copper supply lines, and the cast iron waste water lines. In addition there were problems of general aging such as worn walkways, deteriorating fascia, aging asphalt and water intrusion through the building envelope." Starting in 2005, "[a] significant and noticeable change in the conduct and attitude of the Board occurred." The Board took action to resolve the problems. The leaks in the fresh water copper lines were fixed, and the cast-iron waste lines "are being replaced." "There is no credible evidence that the failures with either the fresh water lines, or the waste water lines was [sic] caused by neglect or inattention of the Board of Directors." "It was determined that the wastewater lines had deficiencies in their metallurgical manufacture, and that they were installed in a defective manner at the time of the construction of the project in the 1970's." The evidence does not support appellant's contention that current conditions at Surfside III present "issues of safety or health." Association's expert witnesses, including Barton Mendel, "were well qualified and persuasive in their testimony, and more qualified and persuasive tha[n] the testimony and evidence offered by [appellant] and his experts." "[T]he repairs authorized by the Board reasonably address the problems, and . . . the amounts approved for repair as well as the amounts already spent on repairs are both reasonable and within the requirements of the CC& R's."
Ruling that Enforcement of Equitable
Servitudes Is Only Viable Cause of Action
Appellant contends that the trial court erroneously "limit[ed] [him] to a sole cause of action for enforcement of equitable servitudes in the CC&R's." Appellant argues that he "has clearly proven that he has suffered monetary damages as a result of the Association's negligence and breach of its contractual and statutory duties . . . ." Appellant is not seeking the recovery of damages for any diminution in the market value of his unit caused by Association's failure to maintain and repair the common areas. He asserts that "the appropriate measure of damages [is his share of the] cost to repair the damaged areas of the common areas." Since Surfside III consists of 309 units, he is "entitled to a monetary award for 1/309th" of the repair costs. The G.B. Group estimated that repair costs would total $17.6 million. Accordingly, appellant maintains that he is entitled to damages of 1/309th of that amount: approximately $57,000.
Assuming, for purposes of discussion, that appellant paid the $22,000 per unit assessment imposed by Association, he could not recover damages greater than that amount. The return of the $22,000 assessment would make appellant whole: he would gain the benefit of the repairs to the common areas without having to pay for them. Any recovery in addition to the $22,000 assessment would be a windfall.
But even if appellant proved that Association had failed to perform its duty of maintaining and repairing the common areas, he would not be entitled to the return of the $22,000 assessment. By appellant's reasoning, Association would have to bear the entire cost of repairing the common areas without imposing any assessment on the owners of the 309 units in Surfside III. This would leave Association bereft of the funds needed to make the repairs. The lack of funds would result in a violation of its contractual and statutory duty to repair the common areas. The homeowners would suffer because the common areas would continue to deteriorate. "The law does not permit such an absurd result." (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1127.)
The CC&Rs require Association "[t]o maintain the Common Area . . . in good, clean, attractive and sanitary order and repair." Civil Code section 1364, subdivision (a), provides: "Unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, or maintaining the common areas, other than exclusive use common areas . . . ."
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The facts here are distinguishable from the situation where a homeowner sues a homeowner's association for injury to his person or property caused by the association's negligence in failing to maintain the common areas. California cases hold that in these circumstances the association is liable to the homeowner. (Ritter & Ritter, Inc. v. Churchill Condominium Ass'n (2008)166 Cal.App.4th 103, 120.) For example, "[i]n the leading case of White v. Cox (1971) 17 Cal.App.3d 824, . . . the court of appeal held that a condominium owner could sue the unincorporated association for negligently maintaining a sprinkler in a common area of the complex." ( Ibid .)The condominium owner sued for damages for personal injuries sustained when he tripped and fell over the sprinkler. Appellant has not cited any evidence in the record showing that the alleged failure of Association to maintain the common areas resulted in injury to his person or property.
In any event, substantial evidence supports the trial court's finding that the plumbing failures were not "caused by neglect or inattention of the Board of Directors." "If there is substantial evidence to support a finding, an appellate court must uphold that finding . . . . [Citations.] An appellate court does not reweigh the evidence or evaluate the credibility of witnesses, but rather defers to the trier of fact. [Citations.]" (Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 958.) " 'We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . . [Citation.]" (Id., at pp. 957-958.)
The trial court credited Barton Mendel's expert opinion that the plumbing failures were due not to faulty maintenance by Association, but to faulty manufacturing and installation. Mendel's testimony was corroborated by a metallurgical analysis of the cast- iron waste lines. But no such corroboration was required because "the testimony of a single witness . . . is sufficient to provide substantial evidence to support a factual finding [citation]." (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 171.) Since Association was not responsible for the defective conditions that led to the need for plumbing repairs, it could not be liable to appellant for the cost of making these repairs.
Denial of Injunctive Relief
Appellant contends that the trial court erroneously refused to issue an injunction compelling Association to address life-safety issues identified by James Sutton, the Port Hueneme building inspector. Appellant maintains: "The trial court's finding that there were no issues of health and safety . . . , despite the testimony to the contrary by . . . Sutton, is clearly an abuse of discretion."
" 'A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action . . . against a defendant and that equitable relief is appropriate.' [Citation.] The grant or denial of a permanent injunction rests within the trial court's sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.] The exercise of discretion must be supported by the evidence and, 'to the extent the trial court had to review the evidence to resolve disputed factual issues, and draw inferences from the presented facts, [we] review such factual findings under a substantial evidence standard.' [Citation.] We resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all reasonable inferences to support the trial court's order. [Citation.]" Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 390.) "We will reverse for abuse of discretion only if there was no reasonable basis for the trial court's action. [Citation.]" (Garcia v. County of Sacramento (2002) 103 Cal.App.4th 67, 81.)
The trial court did not abuse its discretion. With one exception, Sutton opined that the conditions at Surfside III did not pose a life-safety threat. The exception was the possibility that some of the balconies were supported by posts that were not structurally sound. If the structural supports were inadequate, the balconies could collapse in an earthquake. In July 2009 Sutton wrote a letter to Association about the posts. According to Sutton, Association "jumped on it right away." Association hired a structural engineer who prepared a report on the problem. The engineer tested one of the posts. He opined that it conformed to code requirements and did not pose a life-safety threat. Sutton requested that the engineer test a representative sampling of posts. Barton Mendel told Sutton that Association would comply with the request. At the time of trial, the plans for the testing were "still in the plan check stage." Based on his experience in dealing with Association, Sutton believed that it would replace any posts that were not up to code.
" 'A change in circumstances, rendering injunctive relief moot or unnecessary, justifies the denial of an injunction.' [Citation.]" (Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 574.) In view of Sutton's testimony, the trial court reasonably concluded that injunctive relief was unnecessary because Association "was cooperating" in the "ongoing investigation" of the posts and "had engaged a structural engineer to assist in the process." Injunctive relief was also unnecessary because Association had demonstrated its good faith and diligence by completing interior mold remediation, repairs to the elevator shafts, and repairs to the plumbing in five buildings. Furthermore, by the end of 2011, Association planned to complete the remaining recommended repairs provided that it received the $4 million loan for which it had already applied.
Damages for Repairs to Appellant's Own Unit
Appellant argues that the trial court erroneously refused to award him damages "in the amount required to repair the plumbing and interior of [his own] unit." (Bold and some capitalization omitted.) This argument is forfeited because appellant failed to support it with citations to the record.
"[A]n appellant must not only present an analysis of the facts and legal authority on each point made, but must also support arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited. [Citation.]" (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) In support of his argument that he was entitled to recover as damages the cost of repairing his own unit, appellant cites only Association's Exhibit 1354. This exhibit is a contract in which Association agreed to pay a plumbing contractor $433,500 to replace the cast-iron piping in two buildings, one of which contains appellant's unit. The contract does not show that appellant will be required to personally pay to repair damage to his own unit. At trial appellant testified that he was not making a claim for such damage.
Prevailing Party
Civil Code section 1354, subdivision (c) provides: "In an action to enforce the governing documents" of a common interest development, "the prevailing party shall be awarded reasonable attorney's fees and costs." In determining who is the "prevailing party" within the meaning of section 1354, the trial court should analyze "which party . . . prevailed on a practical level." (Heather Farms Homeowner's Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574.) The trial court determined that Association is the prevailing party. We review its determination for abuse of discretion. ( Ibid .)
Appellant argues that he is the prevailing party because he obtained his "main litigation objective, which was to compel the [A]ssociation to address safety issues at the complex." Appellant contends that his actions "caused the City of Port Hueneme Building Inspector [Sutton] to become involved in compelling the Association to finally begin investigations and repairs of structural issues which they had been advised by their own experts to investigate as far back as 2005."
It is of no consequence whether appellant is correct in characterizing his actions as "the catalyst for the City's involvement" in the matter. The trial court reasonably concluded that Association is the prevailing party because it obtained "a simple, unqualified victory by defeating" all of appellant's causes of action. (Hsu v. Abbara (1995) 9 Cal.4th 863, 877.) "[W]hen the results of the litigation . . . are not mixed - that is, when the decision . . . is purely good news for one party and bad news for the other -the Courts of Appeal have recognized that a trial court has no discretion to deny attorney fees to the successful litigant." (Id., at p. 876.) Here, the judgment was purely good news for Association and purely bad news for appellant.
Disposition
The judgment is affirmed. Association shall recover from appellant its costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, Acting P.J. We concur:
COFFEE, J.
PERREN, J.
Henry Walsh, Judge
Superior Court County of Ventura
Susan J. Salehi, for Appellant.
William M. Slaughter, Gabriele M. Lashly; Proctor, Slaughter & Reagan, for Respondent.