Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. PC039657, Melvin D. Sandvig, Judge.
Silverman & Associates and Robert B. Silverman for Plaintiffs and Appellants.
Kulik, Gottesman, Mouton & Siegel, Francesca Dioguardi; Daley & Heft and Lee H. Roistacher for Defendant and Respondent.
JACKSON, J.
INTRODUCTION
Plaintiffs Richard Peterson and Rachel Peterson appeal from a summary judgment in favor of defendant Bridgeport Community Association, Inc. We affirm.
We review a summary judgment de novo. That is, “we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. [Citation.]” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) In doing so, “we view the evidence in the light most favorable to plaintiffs.” (Ibid.) Our task is to “liberally construe” plaintiffs’ evidence and “strictly scrutinize” evidence submitted by defendants, resolving “any evidentiary doubts or ambiguities in plaintiffs’ favor.” (Ibid.) The following factual background is based upon our independent examination of the admissible evidence in the record in accordance with the foregoing principles. (See O’Riordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.)
Plaintiffs Richard Peterson and Rachel Peterson (the Petersons), through the Peterson Family Trust, were the owners of residential real property located at 23944 Windward Lane in Santa Clarita (the property), which was in a planned community development named Bridgeport. The Petersons did not reside at the property. Their daughter, RaeAnn Martin, and her husband, James Martin, lived at the property pursuant to an arrangement with the Petersons.
Defendant Bridgeport Community Association, Inc. (BCA) was the homeowners association responsible for managing the common areas and enforcing the Master Declaration of Covenants, Conditions, and Restrictions for Bridgeport (the CC&Rs) and the Rules and Regulations (the R&Rs) for the community. Membership in BCA was limited to owners of property in Bridgeport.
BCA was the owner of record of the common area referred to by the parties as the Lot Line #2 area, which adjoins the Petersons’ property. Prior to the events at issue in the instant case, there were negotiations between the Petersons and BCA to have ownership of the Lot Line #2 area transferred to the Petersons through a lot line adjustment. In anticipation of such adjustment, James Martin imported topsoil to, fenced and did landscaping on the Lot Line #2 area. BCA had not authorized the Martins or the Petersons to fence off the Lot Line #2 area or to modify the land comprising the area. The Lot Line #2 adjustment did not occur.
From January through March 2005, BCA gave the Petersons numerous written notices to remove the fencing on the Lot Line #2 area and restore it to its original landscaping, in that the Petersons did not have the authority to take possession of and/or modify the area. After the Petersons failed to take action, BCA performed the restoration on March 10, 2005. In the process, BCA removed and destroyed personal property belonging to James Martin, which he valued at approximately $1,500.
BCA never imposed any fines, assessments, liens or other disciplinary action against the Petersons in connection with the restoration of the Lot Line #2 common area. To the knowledge of the vice president of the BCA board of directors, Steven Terwilliger, a BCA director or member never filed a Violation Report in connection with the fencing and other unauthorized use of the Lot Line #2 area.
According to James Martin, in January 2007, BCA removed a portion of sidewalk which ran through the property, pursuant to an agreement regarding a prior lot line adjustment. As the result of BCA’s delay in capping the associated irrigation system, water ran underground for five months, causing accumulation of water of approximately six to eight inches on each side of the driveway.
Also according to James Martin, BCA refused to maintain a proper drainage system along the northern boundary of the property, which resulted in the drains becoming plugged with debris and inoperable. On October 11, 2007, BCA allowed the irrigation system in the common area along the northern boundary of the property to run for nine hours, resulting in flooding on the northern portion of the property. For five years, standing water was consistently on the northern portion of the property.
PROCEDURAL BACKGROUND
The Petersons and the Martins filed the instant lawsuit in October 2006. The first amended complaint was filed in February 2007 and named only the Martins as plaintiffs. The trial court granted BCA’s demurrer to the FAC on the basis that the Martins lacked standing to bring the lawsuit. The court denied leave to amend except to insert the Petersons as plaintiffs in place of the Martins. The trial court entered judgment in favor of BCA against the Martins in January 2008.
The Martins appealed. We affirmed the trial court’s decision in Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024.
In August 2007, the Petersons filed the second amended complaint (SAC), which named only the Petersons as plaintiffs. BCA filed a demurrer to the SAC. The case was set for mediation.
In February 2008, the Petersons filed the operative third amended complaint (TAC). BCA demurred to the first cause of action for breach of R&Rs, the fourth cause of action for negligence, and the fifth cause of action for constructive trust. In April 2008, the trial court sustained the demurrer only as to the fifth cause of action and denied leave to amend. The court’s action as to the fifth cause of action effectively removed from the case any issue as to the Petersons’ entitlement to the Lot Line #2 area.
Of the four remaining causes of action, the first cause of action alleged that BCA failed to comply with notice and hearing requirements in the R&Rs prior to removing landscaping, fencing and dirt from the Lot Line #2 area and restoring the area in March 2005.
The second cause of action alleged that BCA failed to fulfill its responsibilities for the common areas set forth in the CC&Rs (Art. VII, §§ 7.1(c), 7.2(a)), in that BCA overwatered and/or failed to maintain and operate the irrigation and drainage system for the common area around the property. The Petersons alleged BCA’s failure caused damages from a tree falling onto the property; water damage to the driveway; accumulation of standing water for more than five days on the northern portion of the property; an extreme mosquito infestation; debris and dead matter collecting on common areas next to the property; and spray from the irrigation system onto the property for 15 days.
Paragraph 7.1(c) provides, in part, “The Association shall be responsible for management, operation, and control of the Common Area....” Paragraph 7.5(a) provides, in part: “The Association shall maintain... [¶] (a) all portions of the Common Area and all structures, facilities, and amenities situated thereon....”
More specifically, the Petersons alleged the following water-related injuries and damages: (1) a tree fell onto the property, causing approximately $3,800 in damage; (2) water came onto the northern portion of the property, causing erosion of and compromising the foundation of the driveway, which at some time in the future would require experts to conduct soil testing at a cost in excess of $5,000; (3) on October 11, 2007, BCA’s irrigation and drainage systems failed, causing water to flow onto the northern portion of the property for nine and a half hours and remained trapped there for more than five days, for which cleanup costs exceeded $2,500, and geological testing will be required in the future in excess of $7,400; (4) extreme mosquito infestation on the property due to BCA’s failure to properly maintain the common area lake; (5) failing to keep debris off of common areas next to the property; (6) refusing to remove dead matter on the same areas; (7) irrigation water sprayed onto the property for 15 days, causing over $4,000 damage to personal property.
The third cause of action alleged BCA violated Civil Code sections 1363 and 1364 by failing to give the Petersons the required notice and hearing to a common interest development property owner prior to removing personal property from and restoring the Lot Line #2 area.
The fourth cause of action alleged that BCA’s negligence and/or unlawful performance of BCA’s duties with respect to its business, hearings, enforcement actions and common areas proximately caused damages to the Petersons of not less than $100,000.
BCA took the deposition of Richard Peterson in March 2008 and of Rachel Peterson in June. Their testimony showed that they had no knowledge of any alleged disciplinary action against them by BCA, the occurrence of the alleged damage-causing events, or costs allegedly associated with any such damages.
In September 2008, the Petersons filed a motion for summary adjudication of the first and third causes of action. The trial court did not grant the motion.
BCA filed a motion for summary judgment in January 2009. In support of the motion, BCA filed declarations of Steven Terwilliger (Terwilliger), vice president of the BCA board of directors, and BCA’s attorney, Francesca Dioguardi (Dioguardi). Exhibits included, inter alia, selected pages from the Petersons’ depositions.
In his deposition testimony, Richard Peterson said he had no knowledge of BCA imposing fines on him or placing any lien on the property. He did not know if BCA went onto the Lot Line #2 area on March 10. He had not made any exterior improvements to the property and did not know if the Martins had. He had no knowledge of a tree falling on the property or of $3,800 in damages resulting from it. He had no knowledge about the driveway being compromised, never retained an expert to test soils, and had not been told about any such matters by the Martins. According to Richard, on October 11, 2007, when he took the Martins’ children home, he observed water coming under the retaining wall from the common area, but he did not know how long the water flowed. He never observed an extreme mosquito infestation at the property. He had never complained to BCA about overwatering and he did not know if the Martins had done so.
Richard also testified that he believed that the value of the property had diminished as the result of the downturn in the housing market. He never had the property appraised and never intended to sell it. He could not plant on the part of the property involved in the dispute with BCA and some value loss could be attributed to the incomplete landscaping. He estimated that it would take six years after planting for the landscaping to mature sufficiently to overcome such value decrease.
The substance of Rachel Peterson’s deposition testimony was consistent with Richard’s testimony. She was not fined by BCA and was not aware of any liens having been placed on the property. Other than observing the flooded condition of the property on one occasion after the flooding occurred, she had no knowledge of the alleged events causing damage or the alleged associated costs and had not paid the Martins or any other person such amounts. She never complained to BCA about the alleged overwatering problems.
We disagree with the Petersons’ claim BCA omitted important portions of the Petersons’ testimony. Contrary to the Petersons’ claim of omission, however, BCA did include pages 55 and 56 of the deposition transcript for Richard Peterson. The Petersons are correct that BCA’s evidence did not include page 94 of the deposition transcript for Rachel Peterson. Her omitted testimony lacks the import the Petersons claim. She testified that she believed the property had diminished in value but did not know how much and did not know how the loss figure of $262,500 in the discovery responses had been calculated. Rachel Peterson responded “yes” to the question whether “anyone ever told” her they believe the property is diminished in value because of BCA’s deficient maintenance of the common areas. In context, “anyone” excluded experts.
Other testimony by Rachel Peterson also failed to establish that BCA was responsible for any damage or that she suffered any economic loss from any BCA conduct. In her deposition, Rachel Peterson testified that, a day or so after her daughter, RaeAnn Martin, told her the alleged October 11, 2007 flooding occurred, she went to the property while the Martins were not present and observed flooding outside and water seeping through one of the walls. She was afraid the foundation would be compromised. Rachel Peterson testified that she did not know how the water got there. With respect to the alleged damage to the driveway from flooding, she did not know how the driveway became flooded or if BCA had caused the flooding. On one occasion after the Martins telephoned her to tell her about the flooding, Rachel Peterson went to the property and observed the flooding and mud on the driveway, but she did not remember when the driveway flooding occurred; she thought it was in 2006, 2007 or 2008. Rachel Peterson was asked to explain how she arrived at the damages amounts she had set forth in written discovery responses (e.g., $2500 for the October 11 flooding; with respect to the driveway flooding, $5000 for damage assessment and $15,000 for remedial work; $4000 for damage from the sprinkler). She offered no explanation other than that, in some cases, Mr. Martin had told her the amounts, but she had never seen them on an invoice or other document.
The excerpts from Rachel Peterson’s deposition did not include any questions or testimony about whether the value of the property had diminished due to water damage. Rachel Peterson testified that she thought the Martins probably had complained to BCA about the driveway flooding. Rachel Peterson testified that she had never hired or paid for an expert to do soils testing, but one of the Martins had told her they hired a soils expert. She had never gotten an estimate or other information from anyone who the Martins may have called in to assess the damage.
The Petersons filed their opposition to BCA’s motion for summary judgment on April 9, 2009. Besides addressing the specific damage-causing events alleged in the TAC, the Petersons further alleged that the water damage caused mold infestation on the property, requiring structural remediation to the home. The Petersons submitted supporting declarations of the following persons: Amir Kazemzadeh, an appraiser, about the approximate value of the Lot Line #2 area; Brad Mullner, about his opinions based upon his investigation of mold and soil on the property; Jeffrey Pluta, about his mycological investigation and remediation plan for the property; and James Martin, about his observations and opinions about the overwatering and malfunctions of the irrigation and drainage systems and the associated events which allegedly resulted in damage.
The trial court sustained evidentiary objections such that the declarations by Kazemzadeh, Mullner and Pluta effectively have no evidentiary value for the purposes of our de novo review. The court sustained objections to limited portions of the declarations of James Martin and Terwilliger. No objections were made to the Dioguardi declaration. The Petersons do not challenge the evidentiary rulings on appeal.
The Petersons also filed their separate statement of disputed facts on April 9, 2009. The Petersons disputed BCA’s statements that, based upon the Petersons’ depositions, the Petersons suffered no damages. As to damage from the fallen tree and the mosquito infestation, the Petersons admitted that the damage was suffered by the Martins, rather than by themselves. The Petersons cited to only part, but not all, of their relevant deposition testimony in stating their evidentiary basis for disputing BCA’s claimed facts about the alleged damage due to the October 2007 flooding and overwatering of the common areas. The Petersons admitted that Rachel testified that she did not suffer damage to her personal property from the sprinkler system. As to damage due to the soil expert’s costs, the only evidence the Petersons cited was the Mullner and Pluta declarations.
The Petersons’ basis for disputing BCA’s fact was that Rachel did not testify about damage to the real property. That was not relevant, however, in that the third cause of action alleged sprinkler system damage only to personal property.
In reaching a decision on BCA’s summary judgment motion, however, the trial court ruled that the relevant portions of the declarations were inadmissible and, as previously stated, the Petersons do not challenge the ruling on appeal.
The trial court granted BCA’s motion for summary judgment based upon its finding that the Petersons could not establish that they suffered any damages as a result of BCA’s alleged conduct. At the hearing on the motion, the trial court acknowledged that the Petersons had presented the mold and fungus issues and explained that the issues could not be considered, in that they were not pled in the TAC and there had been no motion to amend the complaint. The court entered judgment in favor of BCA and against the Petersons in May 2009.
DISCUSSION
As previously explained, we conduct a de novo review of the grant of a defendant’s motion for summary judgment, utilizing the same legal principles as the trial court. (Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at p. 1142.) We review the validity of the judgment and not the reasons given for it by the trial court. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1146.)
Code of Civil Procedure section 437c, subdivision (c), requires a trial court to grant a motion for summary judgment if all of the admissible evidence submitted by the parties shows there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. A triable issue of material fact exists “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 [summary judgment] motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) Thus, “[w]hen the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) The moving defendant need not conclusively negate an element of the plaintiff’s cause of action. (Aguilar, supra, at p. 853.) However, the defendant may “not simply point out” the absence of evidence supporting the plaintiff’s claim, but must present evidence in support of his or her motion. (Id. at pp. 854-855.) If the defendant meets his or her evidentiary burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists. (Id. at p. 849.)
As we explain more fully below, based upon the admissible evidence in this case, a reasonable trier of fact would not find that it was more likely than not that the Petersons suffered damages as alleged in each of their causes of action. The record shows that the Petersons do not possess, and cannot reasonably obtain, evidence sufficient to establish the damages element of each cause of action. In the absence of such evidence, no issue of triable fact with respect to damages exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851.) BCA therefore was entitled to summary judgment in its favor. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1002-1003.)
BCA met its evidentiary burden as the party moving for summary judgment by submitting the deposition testimony of each of the Petersons and the Terwilliger declaration corroborating some of the testimony. BCA’s evidence showed that the Petersons had virtually no knowledge of the alleged damages, the events which allegedly caused them or the alleged corroborating evidence. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)
Two important principles illustrate that the Petersons are misguided in asserting that their deposition testimony is irrelevant and insufficient to support a determination that no triable issue of fact exists as to damages. The first applicable principle is that reversal of a summary judgment is not required “‘[w]here, as here, ... there is a clear and unequivocal admission by the plaintiff, himself, in his deposition [that there was no injury].” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) In such a circumstance, the evidence is sufficient to support a conclusion that no triable issue of material fact exists. (Ibid.)
In their deposition testimony, the Petersons effectively admit they suffered none of the injuries alleged. The Petersons denied: (1) any personal knowledge of damage caused by the conduct of BCA; (2) ever complaining to BCA that such damage occurred and that BCA was responsible for it; (3) ever seeking any qualified expert assessment of the damage and estimated costs to repair it; (4) ever paying for or being requested to pay for damage assessment or remedial services; and (5) ever receiving a request from the Martins for payment (or reimbursement) for damage or making a payment to the Martins for damage.
Regarding diminution of the value of the property allegedly due to water damage caused by BCA, Richard testified that the property value had decreased, but the decrease was due to the downturn in the real estate market generally. Richard did, in fact, testify that there may have been a decrease in value due to the lack of landscaping. He attributed the lack of landscaping, however, to the necessity of maintaining the Lot Line #2 area in status quo while the Petersons pursued their dispute with BCA over their requested Lot Line #2 adjustment to change the status from common area to part of the real property parcel they owned. Personal property was the only type of property which the plaintiffs alleged was damaged by a repeated sprinkler malfunction. Rachel testified that there was no damage to her personal property, and Richard testified that he did not have personal property at the site of the property.
The second principle is that showing a plaintiff’s written discovery responses, as well as his or her deposition testimony, are factually devoid of support for the complaint can be sufficient to shift the burden of persuasion from the moving defendant to the plaintiff. (Code Civ. Proc., § 437c, subd. (o); Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1533-1534; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) BCA elicited information in the Petersons’ depositions that showed that at least some of their written interrogatory responses were factually unsupported. The completeness and accuracy of their interrogatory responses were called into question by their deposition answers that they had no knowledge about facts included in their responses.
In addition, many of the Petersons’ deposition answers were consistent with their previously submitted separate statement of disputed facts. For example, the Petersons admitted that the Martins suffered the alleged damage from the fallen tree and the mosquito infestation, not the Petersons. They admitted that Rachel testified that the sprinkler system did not damage her personal property.
In sum, as required of a moving defendant, BCA showed that the Petersons do not possess evidence to support their claims. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 854.) Under the facts and circumstances of the instant case, BCA’s showing also satisfied its burden to show that the Petersons cannot reasonably obtain such evidence. (Ibid.) A moving defendant must make this showing “because the plaintiff must be allowed a reasonable opportunity to oppose the motion, ” given the drastic consequences of the grant of summary judgment. (Ibid.)
By the time BCA filed its summary judgment motion in January 2009, the Petersons had already had a reasonable opportunity to gather evidence in support of their claims. BCA took the depositions of the Petersons approximately six months prior to filing its summary judgment motion. By that time, the Petersons had already had considerable time to investigate, assess and obtain estimates for repair of the alleged water damages. The Petersons and/or the Martins had not only filed the original complaint in 2006, but they had also filed three more amended complaints. BCA had demurred to each of them. The Petersons had already unsuccessfully brought their own summary judgment motion as to some of their causes of action.
Additionally, the alleged water damage occurred after the original complaint was filed, at a time when the Petersons would reasonably be expected to be vigilant in protecting their rights. The Petersons had submitted written responses to BCA’s interrogatories about the alleged water damages as well as the other alleged damages. Yet their deposition testimony showed not only that they denied incurring damages as they had alleged, but also that they had virtually no knowledge of the events allegedly causing the damages and had taken no steps to assess, evaluate or repair the damages. Their testimony included no indication that either of them was considering attempting to obtain any further information about the alleged water damage or other injuries.
As the California Supreme Court has pointed out, “‘[u]nder the current version of the summary judgment statute, a moving defendant need not support his motion with affirmative evidence negating an essential element of the responding party’s case. Instead, the moving defendant may... point to the absence of evidence to support the plaintiff’s case. When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact. If the plaintiff is unable to meet [his or] her burden of proof regarding an essential element of [his or] her case, all other facts are rendered immaterial. [Citations.]’ [Citation.]” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) The reviewing court “must determine whether [the moving] defendant has shown that plaintiff has not established a prima facie case of... liability, ‘a showing that would forecast the inevitability of a nonsuit’ in defendant’s favor. [Citation.] ‘If so, then under such circumstances the trial court was well justified in awarding summary judgment to avoid a useless trial.’ [Citation.]” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, quoting from Saelzler, supra, at p. 768.)
The burden thus shifted to the Petersons to show a triable issue of fact existed. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) The admissible evidence presented by the Petersons, however, was limited to portions of the James Martin declaration. If anything, the Petersons’ evidence showed that if anyone suffered damages related to BCA’s activities, it was the Martins. In their previously filed separate statement of disputed facts, the Petersons admitted that not they, but the Martins suffered the alleged damage from the fallen tree and the mosquito infestation. As we determined in the previous appeal, the Martins do not have standing to bring this lawsuit. (Martin v. Bridgeport Community Assn., Inc., supra, 173 Cal.App.4th at pp. 1033-1034.)
There is no merit to the Petersons’ claim in the current appeal that, pursuant to Code of Civil Procedure section 369, subdivision (a), they had the right to sue on behalf of the Martins, in that the Martins were third party beneficiaries of the contracts signed by the Petersons establishing the duties of BCA with respect to the common area. In our opinion in the previous appeal, we concluded that the Martins were not third party beneficiaries of the contracts. (Martin v. Bridgeport Community Assn., Inc., supra, 173 Cal.App.4th at pp. 1033-1034.)
Contrary to the Petersons’ claim, the holding in Gaggero v. Yura (2003) 108 Cal.App.4th 884 regarding the insufficiency of “pointing out the absence of evidence” does not apply, given the circumstances in this case. In Gaggero, the defendant moved for summary judgment on the basis of the absence of evidence of an element of the cause of action, i.e., the ability to pay for the property, in that, at his deposition, the plaintiff had refused to testify on the issue. (Id. at p. 890.) The court concluded that the absence of the plaintiff’s testimony on his ability to pay did not equate to evidence that he did not have such ability and held that the defendant could not meet her evidentiary burden on her motion for summary judgment by “pointing out the absence of evidence” of the element of the cause of action based upon the plaintiff’s refusal to testify. (Id. at pp. 890-891, citing Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855, fn. 23.)
Such is not the case here. The Petersons testified that they had no knowledge of the damages they had alleged. This is not a case of “absence of evidence” as in Gaggero; it is a case of evidence of absence of facts showing the Petersons suffered the alleged damages.
The Petersons assert that BCA was required, but failed, to set forth all material evidence on point. They cite no supporting authority; we know of none. In any event, “[t]he absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived. [Citations.]” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) We do so with respect to their assertion.
Review of the evidence with regard to each cause of action supports our conclusions. In the first and third causes of action, the Petersons alleged BCA failed to give them notice and a hearing as required under the R&Rs (first cause of action) and by Civil Code sections 1363 and 1364 (third cause of action) prior to entering onto and restoring the Lot Line #2 area. According to both cited sources, however, the notice and hearing requirements apply only before disciplinary action may be taken by a homeowners association against a property owner/member such as the Petersons. The Petersons testified that they had no knowledge of ever receiving any fine or notice of a lien from BCA for violation of the CC&Rs or the R&Rs in connection with the Lot Line #2 area or any other matter identified in the R&Rs’ enforcement policy as a possible disciplinary remedy. Their testimony was corroborated by Terwilliger’s statement in his declaration that no BCA member or director ever filed a Violation Report against the Petersons, and the BCA board never took disciplinary action against them. According to the R&Rs, the BCA board can take disciplinary action only with respect to a duly filed Violation Report.
The BCA R&Rs, dated August 9, 2001, include an enforcement policy which provides that in the event a member of the association or the board of directors files a Violation Report, the board would send written notice to the allegedly offending property owner specifying the alleged violation and the date by which the owner must cure the violation. If no cure is completed, the board would send another written notice to the owner asking the owner to attend a hearing with the board. If the board determines the owner is in violation of the governing documents or the R&Rs, the board would notify the owner of its determination and its decision regarding the type of relief to be imposed, such as levying a special assessment or a fine, suspending the owner’s voting privileges as a member, recording a notice of noncompliance against the property, entering upon the property to make the necessary repairs, or performing maintenance for which the owner is responsible. (Id. at p. 20.)
Civil Code section 1364 establishes that, in a common interest development such as Bridgeport, the association, such as BCA, is responsible for repairing, replacing, or maintaining the common areas. Civil Code section 1363, subdivision (h), requires that, if disciplinary action is to be taken against a member of a common interest development, the board of directors of the association must give notice and an opportunity for the member to be heard prior to taking action.
In any event, other evidence shows that BCA’s restoration of the Lot Line #2 area was the exercise of its rights as owner of the Lot Line #2 area, not disciplinary action against the Petersons or the property. The Petersons do not dispute that BCA was the owner of the area. In sum, admissible evidence shows that the cited notice and hearing requirements did not apply, and therefore, the Petersons could not have incurred injury as the result of any alleged failure by BCA to comply with them.
It is also undisputed that BCA had not given the Petersons (or the Martins) permission to fence and landscape the Lot Line #2 area or otherwise convert it to their own use. Without a right to use the Lot Line #2 area, the Petersons could not recover damages for the loss of its use, as alleged in the first cause of action.
The first cause of action also alleged damages as the result of the destruction of the fencing and other materials placed on the Lot Line #2 area. A reasonable inference from the Petersons’ testimony as well as the declaration of James Martin is that the Petersons were not the owners of any such fencing or other materials and the Martins had never requested the Petersons to reimburse them for the alleged loss. For example, at his deposition, Richard Peterson testified that he had made no exterior improvements to the property and did not know if the Martins had done so. Hence, BCA showed that the Petersons did not incur any damages to any of their personal or real property as the result of BCA’s restoration of the Lot Line #2 area.
Although the second cause of action alleged certain water damage as the result of BCA’s failure to fulfill its responsibilities for common areas under the CC&Rs, the Petersons’ deposition testimony includes admissions by them that they did not incur any damage as alleged. They had only incidental knowledge of the alleged water problems, they never complained to BCA about them, and they had no knowledge of incurring or paying any of the costs alleged as damages or of the Martins requesting payment from them with regard to the alleged costs.
In his declaration, James Martin recounted that an overwatered tree fell onto the property, causing damage, but the trial court sustained BCA’s objections to the event account. The Petersons do not challenge the evidentiary ruling on appeal.
As to the decrease in the value of the property alleged in the second cause of action, according to Richard Peterson’s deposition testimony, any material diminution in the value of the property was due to a downturn in values generally in the housing market, rather than to BCA’s actions. The only possible cause of any decrease in value, according to Richard’s testimony, was the incomplete landscaping, in that he had been unable to plant landscaping during the dispute with BCA. According to his testimony, however, that decrease could be eliminated, in that, once planted, the landscaping would mature in about six years. He testified that he did not have the property appraised to determine if it had decreased in value. His testimony that, in any event, he never intended to sell the property gives rise to the inference that he believed a decrease in value, if any, was not material.
The Petersons assert that the trial court erred in failing to liberally construe the evidence presented by the Petersons in opposition to the summary judgment motion. We disagree. “[W]hen discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of those stern requirements applicable in a normal case are relaxed or altered in their operation.” (D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 21.) The rule providing for liberal construction of an opposing plaintiff’s affidavit does not require reversal of a summary judgment for a defendant when there is deposition testimony by the plaintiff admitting the absence of facts essential to establishing the plaintiff’s cause of action. (Ibid.)
The Petersons claim that the evidence of mold and related investigation costs set forth in the Mullner and Pluta declarations is sufficient to raise a triable issue of fact as to their water damage allegations. BCA counters that the proffered mold evidence cannot be considered, in that the Petersons did not plead a cause of action for, or otherwise allege, mold damage in the TAC. They first raised the issue of mold in their opposition to the motion for summary judgment and never moved to amend the complaint to allege mold damage. We agree with BCA.
To create a triable issue of fact, a party opposing a summary judgment motion must submit evidence directed to issues framed by the pleadings. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) The complaint limits the scope of issues to be addressed on a motion for summary judgment. (Ibid.) If an opposing party presents evidence to show “‘some factual assertion... or claim not yet pleaded, the party should seek leave to amend the pleadings before the hearing on the summary judgment motion. [Citations.]’ [Citation.]” (Id. at p. 1253.)
The Petersons next rely on the principle that evidence offered in opposition to a summary judgment motion must be liberally construed and reasonable inferences drawn from it must be considered by the court. (Code Civ. Proc., § 437c, subd. (c); Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at p. 1142.) The principle does not apply, however, to their argument that the term “water damage” in the TAC, when liberally construed, includes mold damage. They ignore the fact that their allegations of water damage were very specific—from an overwatered fallen tree, overwatering causing flooding of the northern portion of the property, irrigation and drainage system failure causing water to flow onto the property for nine and a half hours and remain trapped there for more than five days, water spray onto the property for 15 days causing personal property damage, and extreme mosquito infestation. Construing the complaint to encompass an allegation of mold damage would be inconsistent with the fundamental principle that, in summary judgment proceedings, the court is to consider only evidence directed to the issues framed by the complaint and if a party desires to present evidence on a factual assertion not yet pleaded, the party must seek leave to amend the complaint prior to the summary judgment hearing. (Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1253.)
Moreover, the Petersons did not appeal from the trial court’s ruling that the substance of the proffered mold evidence in the Mullner and Pluta declarations was not admissible. Nevertheless, the Petersons argue that, “[e]ven if the Court were to disregard the evidence of mold infestation, the declarations nevertheless establish water damage. And... the motion for summary judgment should have been denied.” We cannot consider the proffered mold evidence for the purpose of establishing water damage, however, in that we are required to limit our consideration only to admissible evidence. (Code Civ. Proc., § 437c, subd. (c).) The mold evidence did not create a triable issue of material fact which would avoid summary judgment. (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 477, review den. Oct. 20, 2010 [“A plaintiff may not avoid a summary judgment by producing evidence to support claims outside the issues framed by the pleadings.”].)
The fourth cause of action alleged that BCA’s negligence with respect to the notice and hearing requirements and the maintenance and operation of the irrigation and drainage systems proximately caused injury to the Petersons’ real and personal property, resulting in damages of not less than $100,000. As discussed above, review of admissible evidence does not show that the Petersons incurred any damage alleged to be caused by BCA, including the damage alleged in the fourth cause of action. Accordingly, summary judgment was warranted, in that there was no triable issue of material fact with respect to the damages alleged in the TAC. (Code Civ. Proc., § 437c, subd. (c); Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1002-1003; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849-851.)
Finally, the Petersons claim that reversal is required, in that the trial court failed to specify the evidentiary basis for its determination that there was no triable issue of material fact, as required by Code of Civil Procedure section 437c, subdivision (g). As previously noted, we independently review the record. (Travelers Casualty & Surety Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1450.) “If independent review establishes the validity of the judgment, then the error [of noncompliance with Code of Civil Procedure section 437c, subdivision (g)] is harmless, ” in that what is reviewable is the validity of the judgment and not the trial court’s reasons for it. (Byars v. SCME Mortgage Bankers, Inc., supra, 109 Cal.App.4th at p. 1146.) Having affirmed the validity of the judgment, we conclude that any such error by the trial court was harmless and not cause for reversal. (Ibid.)
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal.
We concur: PERLUSS, P. J., ZELON, J.