Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV030970.
Jenkins, J.
Plaintiff and cross-defendant Margaret A. Seltzer (Seltzer) appeals the entry of judgment finding in favor of defendant and cross-complainant Headlands Homeowners Association (Association) and other defendants, including Eugene Burger Management Corporation (EBMC), on Seltzer’s third amended complaint (TAC), and in favor of the Association on its cross-complaint. Judgment followed a bench trial conducted over fifteen days in February and March 2009. Seltzer also challenges several pre-trial motion rulings as well as the court’s post-judgment cost orders in favor of defendants.
Seltzer contends: (1) the judgment and cost orders should be vacated because the trial court denied her constitutional right to a jury trial under the California Constitution; (2) the trial court should have stayed the action pending resolution of an insurance coverage dispute between Seltzer and Allstate Insurance Company; (3) the trial court should have granted a motion to remove the assessment lien on her property after the Association dismissed its claim for judicial foreclosure of the assessment lien; (4) the trial court erred by vacating a default judgment and dismissing the TAC as to a group of defendants who were not involved at trial; (5) the trial court’s ruling concerning monies owed on account by Seltzer to the Association should be reversed as a miscarriage of justice; and, (6) the cost awards against Seltzer should be reversed for an abuse of discretion. Finding Seltzer’s contentions meritless, we affirm.
Factual and Procedural background
We recite the relevant facts in the manner most favorable to the judgment, resolving all conflicts and drawing all inferences in favor of respondent. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1233, fn. 2.)
A. Pre-Litigation Phase
Seltzer owns a townhome in a condominium development in Marin City known as “The Headlands View Homes.” The Headlands Homeowners Association (Association) manages the development pursuant to a recorded Declaration of Covenants, Conditions and Restrictions.
The relationship between Seltzer and the Association is long and disputatious. In 1994, the parties entered a settlement agreement in regard to a lawsuit filed by Seltzer against the Association and its management agents after the Association recorded a notice of default, and instituted a foreclosure sale against Seltzer for non-payment of Association assessment fees. Under the terms of the settlement agreement, both Seltzer and the Association acknowledged a duty to follow and abide by the governing documents, including the then-governing CC&Rs recorded in January 1979 (1979 CC&Rs). Additionally, the Association agreed to maintain the landscaping surrounding Seltzer’s unit and maintain view corridors throughout the development. In return, Seltzer agreed to execute a “Hold Harmless Agreement and Waiver of Responsibility for Maintenance by Community Association” on behalf of the Association in regard to certain alterations and modifications to her unit.
Thereafter, in November 1998, the CC&Rs governing the development were amended and recorded in the Marin County Recorder’s Office. Under the 1998 CC&Rs, the Association’s Board is empowered to establish an Annual Assessment to be allocated among all units, payable by the unit owners in twelve monthly installments due on the first day of the month. An installment not received by the fifteenth of the month is considered delinquent, and the 1998 CCRs authorize the Association to record a lien against an owner’s unit to secure the indebtedness. Further, under the 1998 CC&R’s if an owner is more than 60 days in arrears with payments of the monthly installments, or if the owner is delinquent more than three times within a twelve month period, the Association may accelerate the annual assessment, i.e., declare the entire balance of the annual assessment immediately due and payable in full.
Seltzer failed to pay the monthly installments towards her annual assessment that became due in March, April and May 2002. At the April 18, 2002, Board meeting, the issue of Seltzer’s delinquent assessment accounts was discussed. The minutes of the Board meeting reflect the following: Over the past two years Seltzer had been consistently late with her payments and each time the Association sent a notice of intent to file a lien, Seltzer paid within the 15-day grace period. The Board approved a motion that the Association decline to accept partial payments from Seltzer for accounts past due and “state this in the Intent to Lien notice.” The Board instructed EBMC, the Association’s management agent, to send a letter notifying Seltzer of its decision. The Board also noted Seltzer had not yet signed the Hold Harmless Agreement required under the settlement agreement to the 1994 lawsuit.
In May 2002, the Association voted to accelerate Seltzer’s annual assessment and referred her delinquent account to a collection agency named ProSolutions. On behalf of the Association, Pro Solutions prepared and sent to Seltzer a Notice of Intent to Lien, requesting full payment of the arrearage (or arrange for a payment plan) to ProSolutions and advising her that partial payments would not be accepted unless specifically approved. The notice reflected a total amount due of $3,927.08. Seltzer responded by forwarding a partial payment to EBMC, which EMBC forwarded to ProSolutions for return to Seltzer.
In August 2002, ProSolutions informed Seltzer that the Board had authorized foreclosure of her property in order to collect delinquent assessments, charges and fees. Thereafter, ProSolutions referred Seltzer’s file to Cimarron Trustee Services (Cimarron), a collection-foreclosure company. On October 7, 2002, Cimarron recorded a notice of default and trustee sale, showing an amount due of $4,879.44 as of October 2, 2002. The notice advised Seltzer that her property could be sold after three months if her account was not paid in full by then. On October 16, 2002, Seltzer wrote to the Board stating that she intended to file suit against the Association, EBMC and ProSolutions based on their handling of her assessment account and refusal to accept payment submitted by her on May 23, 2002. Thereafter, a Trustee sale of Seltzer’s condominium unit was scheduled for March 12, 2003.
B. Litigation Phase
True to her word, Seltzer filed suit on March 3, 2003. The complaint named as defendants EBMC, Lori Burger, an officer of EBMC, the Association, several individual board members, ProSolutions, Cimarron, and several officers of the latter two companies. As noted above, the operative pleading is the TAC, which sets forth fifteen causes of action (discussed in more detail, post) based on allegations that the Association failed to comply with the 1994 Settlement agreement which incorporated the 1979 CC&Rs, that the 1994 settlement was procured by fraud, and that the Association breached its fiduciary obligations when it pursued a collection action against her based on the 1998 CC&Rs. Regarding relief, the TAC sought damages, injunctive relief, restitution, declaratory relief, and rescission of the 1998 CC&Rs and the releases executed pursuant to the 1994 settlement agreement.
The trial court sustained a demurrer to the sixteenth cause of action alleged in the TAC, a derivative action for indemnity and contribution on behalf of the Association.
In response, the Association filed a cross-complaint against Seltzer, the operative version of which is the second amended cross-complaint (SACC). The SACC alleged various causes of action arising from Seltzer’s failure to pay outstanding assessments and her unilateral action in cutting trees in the development’s common area that she claimed obstructed the view from her unit. The SACC sought foreclosure of the lien related to the assessments, sale of Seltzer’s condominium unit, a money judgment for past due assessments and injunctive relief.
On February 10, 2009, the parties appeared before the Honorable Verna Adams for trial. Prior to resolution of several motions in limine, the court ordered the parties to meet and confer in order to review the operative pleadings and “attempt to agree on which causes of action... present jury issues and which present equitable issue that will be tried by the Court.” The parties were unable to reach agreement and the court took the question of the parties’ right to a jury trial under submission. The next morning the court announced its decision as follows: “Last night I again reviewed the complaint, the cross-complaint, and the answers to all of them, as well as the parties’ issue statements. [¶] Having done all that, I’ve formed the opinion... that on both the complaint and the cross-complaint... the equitable issues prevail. [¶] The gist of Plaintiff’s action against Defendants is to prevent foreclosure, for an accounting, enforcement of a 1994 settlement, compliance with the CC&Rs, abatement of nuisance, reformation and the like. [¶] The gist of the cross-complainants’ action could look like it’s [a] collection of monies due, but I think that’s subsumed in Plaintiff’s demand for an accounting. I think there is little, if anything, in this case for a jury to try. [¶] Therefore, this is going to be, initially at least, a court trial. If, at the conclusion of the court trial, ... any of you can persuade me that there are any issues that should be determined by a jury, I will impanel a jury.”
Thereafter, the parties presented their evidence and the court issued a tentative ruling from the bench on March 16, 2009. The court restated its earlier ruling that the case was equitable in nature, adding: “In view of the gravamen of both Plaintiff’s third amended complaint and Cross-complainant’s second amended cross-complaint, as well as the substantial equitable defenses pleaded by all parties, I am persuaded that initially trying the case to the Court was the proper procedure. [¶]... [¶] This case has been hugely litigated. But at its core, it’s essentially equitable in nature.” After ruling on the issues raised at trial, the court stated, “I’m aware that all three sides in this case have proffered issues that they... at some time believed are properly triable to a jury. I disagree. This case presented a mix of equitable and legal claims, and my rulings on them have obviated the need for a subsequent jury trial.”
On May 14, 2009, the trial court issued a Corrected Statement of Decision and entered its Corrected Judgment After Trial. Thereafter, Seltzer filed a motion for a new trial, which the court denied. Seltzer timely filed a notice of appeal on August 20, 2009.
Discussion
A. Right to Jury Trial
1. Applicable Legal Standards
“The right to a jury trial is guaranteed by our Constitution. (Cal. Const., art. I, § 16.) We have long acknowledged that the right so guaranteed, however, is the right as it existed at common law in 1850, when the Constitution was first adopted, ‘and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact.’ (Citations.)” (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8.) A jury trial, however, is a matter of right only in actions at law, but not in equitable actions. (Ibid.; see also Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 863.) Accordingly, “[w]hether a jury trial is required, in essence, depends upon the nature of issues as equitable or legal.” (Escamilla v. California Ins. Guarantee Assn. (1983) 150 Cal.App.3d 53, 57.) In any given case, “ ‘the proper inquiry is the sometimes difficult one whether the issues are legal or equitable in nature. [Citations.]’ ” (Manneck v. Lawyers Title Ins. Corp. (1994) 28 Cal.App.4th 1294, 1300.)
“ ‘ “ ‘If the action has to deal with ordinary common-law rights cognizable in courts of law, it is to that extent an action at law. In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case-the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law.’ ” [Citation.] On the other hand, if the action is essentially one in equity and the relief sought “depends upon the application of equitable doctrines, ” the parties are not entitled to a jury trial. [Citation.]’ ” (Walton v. Walton (1995) 31 Cal.App.4th 277, 287, see also C & K Engineering Contractors, supra, 23 Cal.3d at p. 8.)
Whether an action is legal or equitable in nature “depends in large measure upon the mode of relief to be afforded (citations); is ascertained from the gist of the action as framed by the pleadings and the facts in the case (citations); but is not fixed by the prayer or the title. (Citations.)” (Paularena v. Superior Court of San Diego County (1965) 231 Cal.App.2d 906, 911-912.) Thus, “ where the legal remedy of damages is full and adequate and can do complete justice between the parties, no equitable remedy is available[, ]” and the right to a jury trial is thereby established. (Asare v. Hartford Fire Ins. Co. (1991) 1 Cal.App.4th 856, 867.) “On the other hand, where damages are but one of a full range of possible remedies or consideration of equitable principles is necessary in determining whether damages may be awarded, the right to a jury trial is not guaranteed. (Citation.)” (Ibid.; see also Walton v. Walton, supra, 31 Cal.App.4th at p. 287; Van de Kamp v. Bank of America, supra, 204 Cal.App.3d at p. 865 [“An action is one in equity where the only manner in which the legal remedy of damages is available is by application of equitable principles [Citation.]”].)
Finally, whereas “the better practice” is to seek review of the denial of a right to jury trial by writ, “saving the time and expense of a court trial if a jury trial improperly was denied, the ruling may be reviewed on appeal from the judgment. (Citations.)” (Van de Kamp v. Bank of America, supra, 204 Cal.App.3d at p. 862.) We independently review the trial court’s denial of Seltzer’s request for a jury trial, as “[d]enial of the right to trial by jury is an act in excess of the court’s jurisdiction and is reversible error per se. [Citations.]” (Id. at p. 863.)
2. Analysis
Seltzer contends the trial court erred by denying her a jury trial. In particular, Seltzer asserts that the gist of the TAC was a claim for damages for wrongful foreclosure and failure to maintain her property. Further, Seltzer characterizes the lawsuit as one involving rights based on reciprocal covenants set forth in the CC&Rs that are contractual in nature, and therefore triable to a jury.
Respondents, on the other hand, contend that the entire case was properly triable to the court because the gist of the TAC is equitable, not legal. Alternatively, they assert that even if the “gist of the action” is not equitable, the court properly severed the equitable issues for trial before the court, and properly concluded that the issues resolved in the equitable phase of the trial obviated the need for a jury trial on any remaining legal issues.
As explained more fully below, we conclude that the TAC presents a mixture of both equitable and legal claims. Thus, on this record we cannot conclude Seltzer’s right to a jury trial is precluded because “gist of the action” is equitable. Rather, to resolve this issue, we must initially determine whether the trial court, presented with a mixture of equitable and legal claims, properly severed the equitable claims and tried those without a jury, and if so, whether the trial court’s rulings on the equitable claims disposed of the remaining legal claims.
(a) The TAC Contains a Mixture of Legal and Equitable Claims
We begin with a survey of the claims presented in the TAC. In our view, equitable claims are alleged in the third, fourth, fifth, ninth, twelfth, fourteenth and fifteenth causes of action. Of these, the third, fourth, fourteenth and fifteenth causes of action are equitable claims seeking declarative and injunctive relief only. For example, the third cause of action alleges that the Association violated the 1979 CC&Rs and the Davis-Stirling Common Interest Development Act in the collection of assessments by refusing to accept checks submitted by plaintiff and credit her account accordingly, and seeks “declaratory and injunctive relief in aid of the enforcement of the CC&Rs... but at a minimum a declaration that the Association has violated the provisions of the CC&Rs... with regard to the collection of assessments, a prohibitive injunction enjoining future violations, enjoining the Association’s rights and obligations to ProSolutions [and other defendants], and a mandatory injunction compelling the Association to credit all payments to the Association as of the date they were tendered.” In the fourth cause of action against the Association, EBMC and Lori Burger, plaintiff seeks enforcement of her right to inspect all books and records of the Association, including “a declaration that the Association has no justification in denying her those rights or conditioning them on tactical maneuvers in this litigation, and an award of her expenses incurred in enforcing her inspection rights.” The fourteenth cause of action seeks both a preliminary and permanent injunction against all defendants compelling them to rescind the amendments to the CC&Rs and record notice that the documents have been properly rescinded. In her fifteenth cause of action for declaratory relief, plaintiff states that, “[a]n actual controversy exists between plaintiff and defendants concerning their respective rights and duties in the Property and in the transactions and other matters described herein.” Plaintiff requested “a judicial declaration and determination... that plaintiff is not in default under the Governing Documents, ... that plaintiff has tendered payments, and that defendants have refused to credit her payments and have wrongfully attempted to create an improper default and thereby help themselves to improper collection fees.” The claims asserted in the third, fourth, fourteenth and fifteenth causes of action are clearly equitable in nature. (See Caira v. Offner (2005) 126 Cal.App.4th 12, 24 [stating that an action for declaratory relief is an equitable proceeding to identify rights, because common law recognized only a coercive action to enforce existing rights]; Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 125 [actions seeking injunctive relief are equitable in nature].)
The fifth cause of action is also equitable. Seltzer alleges therein that the Association is liable for a continuing nuisance “caused by the eradication of her views and fire dangers posed by the failure to maintain the firebreak.” Plaintiff requested “an order of abatement of the continuing nuisances and damages for the loss of the use and enjoyment of her property as well as expenses she incurred in abating the nuisance.” “[A] party is not entitled to a jury trial in an action to abate a nuisance (Citations)” (Wolford v. Thomas (1987)190 Cal.App.3d 347, 353), and the fact that Seltzer seeks damages in connection with this claim “does not convert this essentially equitable action into a legal one.” (Id. at p. 354.)
In the ninth cause of action against all defendants, plaintiff alleged that defendants engaged in unfair business practices under section 17200 of the Business and Professions Code by “fraudulently obtain[ing] votes from homeowners on matters that affected or deprived the homeowners of their rights under the Governing Documents, ” levying unlawful charges and refusing to credit payments, and creating and incurring “false charges and expenses in order to defraud homeowners.” Plaintiff requested an injunction preventing said unfair business practices, imposition of penalties, “as well as restitution and a constructive trust on the fruits of defendant’s unfair business practices.” This too is an equitable claim. (See Hodge v. Superior Court (2006) 145 Cal.App.4th 278, 284 [remedies under unfair competition law are purely equitable and thus there is no right to a jury trial on a section 17200 claim].) The equitable claims described above are the basis for Seltzer’s prayer for injunctive relief, a declaration of rights and duties, rescission of the 1998 CC&Rs, and rescission of the releases executed as a result of the 1994 settlement agreement.
We also conclude that the claim stated in the twelfth cause of action for constructive fraud is equitable. In this regard, plaintiff alleged defendants constructively breached fiduciary duties owed to her by “failure to maintain the property, improperly assessing charges [against her], recording liens that were false, attempting to collect [false liens] by using the power of sale illegally, and by secretly and fraudulently replacing the Governing Documents with documents that deleted, undermined, or restricted important legal rights of the homeowners.” With respect to this claim, Seltzer seeks “an accounting of all monies, debts and contracts described herein, of the amounts owing to her by the Association and the amounts claimed by the Association owed by her to determine the net amounts owing.” (De Guere v. Universal City Studios, Inc. (1997) 56 Cal.App.4th 482, 507 [“A cause of action for an accounting is an equitable proceeding to which no right to jury trial attaches (Citation.)”].)
Conversely, the remaining causes of action alleged in the TAC are all legal in form and substance. (See Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 909 [courts look to “form and substance” of claim to determine whether the gist of the action is legal or equitable].) The first and second causes of action seek damages under a breach of contract theory. More specifically, the first cause of action alleges the Association breached the CC&Rs by failing to perform landscape maintenance in the development’s common areas. The second cause of action alleges the Association breached the 1994 settlement agreement by failing to maintain landscaping and view corridors surrounding plaintiff’s home. The sixth cause of action alleges that the Association and individually named members of the Board of Directors breached fiduciary duties owed to plaintiff under the CC&Rs by, among other things, “failing to repair and maintain the landscaping surrounding the Property to preserve views and comply with fire codes, ” and “failing to communicate with plaintiff concerning their obligation to credit her payment for assessments [and] failing to credit plaintiff’s payments.” The sixth cause of action also alleges that defendants “breached or conspired with other defendants to breach their fiduciary duties by fraudulently replacing the Governing Documents with documents that materially altered and reduced the owners’ rights as is set forth elsewhere herein, ” and seeks exemplary and punitive damages. Similarly, the seventh cause of action alleges that EMBC, ProSolutions, Cimarron and officers of those companies breached fiduciary duties owed to plaintiff by acting as agents for the Association, and thereby “created false liens, created false charges that had not been incurred, and threatened to sell plaintiff’s home solely for their pecuniary gain.” Plaintiff added that “[b]y reason of such bad faith malice, fraud and oppression, plaintiff is entitled to recover exemplary and punitive damages... in an amount to be determined by the trier of fact.”
The eighth cause of action alleges deceit against the Association and others based on the Association’s alleged intentional failure to comply with the terms of the 1994 settlement agreement and the Association’s actions in obtaining approval of the 1998 amendments to the CC&Rs, and seeks rescission and damages. On the latter point, plaintiff alleged irregularities in the amendment process, including failure to specify the nature of the amendments, sending literature to owners making false assertions that the Governing Documents required revision, and misleading owners into voting for amended CC&Rs that diminished owners’ rights.
In her tenth cause of action, plaintiff alleges ProSolutions, Cimarron and their corporate officers violated the federal Fair Debt Collection Practices Act in collecting assessments on behalf of the Association. In the eleventh cause of action, plaintiff alleged the Association’s “failure to collect and apply assessments for the purpose of maintaining and repairing the common area and set reserve accounts for the view maintenance, impaired the capital stock of the corporation and constituted waste of the corporation’s resources.” On this point, plaintiff also alleged that “defendants who have controlled the corporation have been guilty of persistent and pervasive fraud, mismanagement, misapplication or waste of corporate property.” Plaintiff asserted that she is “entitled to recover treble damages for waste resulting from defendant’s conduct.”
Seltzer’s thirteenth cause of action asserts a claim for intentional infliction of emotional distress against all defendants based upon the outrageous conduct described in the preceding causes of action and prays for general and special damages, as well as punitive damages.
Based on the foregoing survey of the pleadings, we conclude that the TAC contains a mixture of legal and equitable claims. Hence, the “gist” of the action is not properly characterized as equitable. However, where a complaint “consist[s] of a ‘mixed bag’ of equitable and legal claims, the equitable claims are properly tried first by the court. A principal rationale for this approach has been explained as follows: ‘ “When an action involves both legal and equitable issues, the equitable issues, ordinarily, are tried first, for this may obviate the necessity for a subsequent trial of the legal issues.” [Citation.]’ (Citations.) Numerous cases having a mixture of legal and equitable claims have identified this same principle—that trial of equitable issues first may promote judicial economy. (Citations.)” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1238 (Nwosu).) We now turn to consider the severance procedure employed by the trial court in this case.
(b) Severance and Bench Trial of Equitable Claims
Here, the trial court was faced with a complaint presenting a mixed bag of equitable and legal claims. Although the trial court did not identify equitable claims count by count, as we have done above, the trial court stated it intended to try, as an initial matter, those equitable claims seeking an accounting, abatement of nuisance, a determination of the parties’ rights under the applicable CC&Rs and enforcement of the 1994 settlement agreement. Patently, the court thought that this approach would “obviate the necessity for a subsequent trial of [] legal issues... [and] promote judicial economy” (Nwosu, supra, 122 Cal.App.4th at p. 1238), because having identified the nature of the equitable claims, the court stated: “Therefore, this is going to be, initially at least, a court trial. If, at the conclusion of the court trial, ... any of you can persuade me that there are any issues that should be determined by a jury, I will impanel a jury.” In sum, the trial court followed the typical practice of bifurcating equitable claims and trying them before the court first, with a jury trial to follow if one is necessary after resolution of the equitable claims. (See id. [“When an action involves both legal and equitable issues, the equitable issues, ordinarily, are tried first, for this may obviate the necessity for a subsequent trial of the legal issues.”].)
Nevertheless, Seltzer contends that the bifurcation procedure implemented by the trial court was in excess of the trial court’s jurisdiction and amounted to a denial of due process of law. In particular, Seltzer argues the court the court acted without notice and denied her an opportunity to be heard because the court did not inform her what claims and defenses were to be tried before the court in the first phase of trial.
Seltzer’s jurisdictional argument is a non-starter. Where a trial court errs by trying an action which carries a constitutional right to a jury trial, the trial court does not lose jurisdiction. The aggrieved party’s remedy is to seek review by writ, as stated previously in this opinion, or by appeal. (See Nessbit v. Superior Court (1931) 214 Cal. 1, 7.)
Whereas due process is a “flexible concept” that depends upon “a variety of factors, including the nature of the interest involved, the nature of the proceeding and the possible burden on that proceeding..., minimum due process requires some form of notice and an opportunity to respond. [Citation.]” (Sommerfield v. Helmick (1997) 57 Cal.App.4th 315, 320.) Additionally, due process always requires a fair hearing before a neutral or unbiased decision maker. (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90.)
Here, Seltzer’s claim that she was denied due process rings hollow in light of the record before us. As noted above, the trial court announced it would try first the equitable claims seeking an accounting, abatement of nuisance, a determination of the parties’ rights under the applicable CC&Rs and enforcement of the 1994 settlement agreement. The trial court told the parties it thought resolution of the equitable claims would obviate any need for a jury trial when it stated, “I think there is little, if anything, in this case for a jury to try.” The court placed no limitation, outside of those matters decided on by pre-trial motions in limine, on the evidence and testimony the parties could provide in support of their claims. Indeed, whereas the trial court estimated the trial would last eight days, the court actually received evidence and heard testimony over fifteen days. Seltzer does not provide us with transcripts of the evidence adduced during the court trial. However the clerk’s minutes reflect that Seltzer delivered a lengthy opening statement outlining the issues upon which evidence would be offered, introduced hundreds of exhibits, called approximately twenty witnesses, some of whom she recalled, read deposition testimony into evidence, and testified at length herself. As importantly, Seltzer identifies no other evidence that she would have presented to the jury absent the court’s asserted error. In sum, Seltzer has failed to establish that she suffered a denial of due process on account of the trial court’s bifurcation procedure.
(c) No Jury Trial Was Necessary After the Bench Trial
The remaining question is whether the trial court correctly determined that its resolution of the equitable claims obviated any need for a jury trial on the legal claims. We conclude the trial court did not err in its determination that resolution of equitable claims also disposed of all appellant’s legal claims.
Two key issues underlie all the claims, both legal and equitable, asserted by Seltzer in the TAC. The two issues are: (1) whether the Association was governed by the 1979 CC&Rs or the 1998 CC&Rs; and, (2) whether the Association complied with its maintenance duties and obligations under the governing CC&Rs and the 1994 settlement agreement. In ruling against Seltzer on her equitable claims, such as her claims for injunctive relief, declaratory relief and nuisance, the trial court resolved these two key issues in favor of the Association. Specifically, the trial court found that in 1998 the Association amended and recorded its CC&Rs in compliance with the applicable law; that Seltzer was in default on her annual assessments and that the Association, and its agents, complied with the 1998 CC&Rs and applicable law in accelerating and attempting to collect Seltzer’s past due assessments. Additionally, the court found that the Association complied with its maintenance duties and obligations. Specifically in this regard, the court found that: “All the evidence on the subject is that the [A]ssociation has done a good job operating within the constraints of their resources to maintain the property” and, regarding tree maintenance in particular, the Association had “done a remarkable job in creating defensible space and improving overall environmental conditions in the area.”
Seltzer’s claims for the equitable remedies of injunctive relief (fourteenth cause of action) and declaratory relief (fifteenth cause of action), asked the court to rescind the 1998 CC&Rs and issue a declaration that the 1979 CC&Rs controlled. In her equitable claim of nuisance (fifth cause of action), Seltzer asserted that the Association was liable for a nuisance caused by its failure “to repair and maintain the landscaping under the CC&Rs” and “the eradication of her views and the fire dangers posed by the failure to maintain the firebreak.”
In particular regard to Seltzer’s claims under the 1994 Settlement Agreement, the trial court found in favor of the Association on its equitable defense of estoppel asserted in its answer to the TAC, ruling that Seltzer “is estopped from claiming defendants are in default on the 1994 Settlement Agreement” because she “failed to furnish the hold harmless agreement” required thereunder. The trial court was also entitled to resolve the Association’s estoppel claim without a jury. (See Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 161 [noting that estoppel is “an equitable issue for court resolution (Citations.)”].)
The trial court’s resolution of these key issues in favor of the Association also disposed of Seltzer’s legal claims. (See Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 487 [“Issues adjudicated in earlier phases of a bifurcated trial are binding in later phases of that trial and need not be relitigated”]; see also Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 50 [bench resolution of bifurcated equitable issues eliminated need for a second phase jury trial on legal issues].) In this regard, Seltzer’s legal claims for damages based on allegations that the Association failed to maintain the property (first, second and eleventh causes of action), fraudulently replaced the governing documents (sixth and eighth causes of action) and created false liens and charges (seventh and tenth causes of action), all fail as a consequence of the trial court findings on the equitable claims. Moreover, the trial court’s findings that the Association acted legally, properly, and in compliance with the applicable laws and governing CC&Rs in its dealings with Seltzer are fatal to Seltzer’s claim for intentional infliction of emotional distress.
In sum, the trial court properly bifurcated the action and tried the equitable claims first. After resolving the equitable claims in favor of respondents, the trial court also properly determined that no claims remained for trial by jury. Therefore, we reject Seltzer’s claim that the trial court violated her right to a jury trial.
B. Stay of Action
After the Association filed its cross-complaint against her, Seltzer tendered defense of the cross-complaint to Allstate Insurance Company (Allstate), her property insurer. Subsequently Allstate and the Association settled the Association’s property damage claim asserted in the cross-complaint, and the Association dismissed the claim. After dismissal of the property damage claim, Allstate took the position that it had no further indemnity obligation and withdrew its defense of the cross-complaint.
Based on the above-described events, Seltzer filed a complaint against Allstate in February 2008 for breach of insurance contracts, breach of the covenant of good faith and fair dealing, fraud, unfair business practices and declaratory relief. Thereafter, in August 2008, Seltzer filed a motion to stay proceedings against the Association pending the resolution of her coverage dispute with Allstate.
The trial court issued a ruling on September 4, 2008, denying Seltzer’s motion to stay proceedings against the Association. In its ruling, the trial court noted that Seltzer had framed her motion to stay “to depend on the merits of her allegations” in the suit against Allstate. The trial court likened Seltzer’s motion to an application for a preliminary injunction and concluded Seltzer had not shown any likelihood of prevailing on her claim. The trial court also ruled in pertinent part, “The speculative harm to plaintiff from denial of this motion (see plaintiff’s declaration p.12:11-13) cannot outweigh the need to finally bring this aging case to trial. If plaintiff believes she needs co-counsel for defense of the cross-complaint, she can retain such counsel and later seek the costs of that representation as damages.”
Seltzer contends the trial court erred in denying her motion to stay. We review the trial court’s denial of a motion for a stay under the abuse of discretion standard of review. (See Bains v. Moores (2009) 172 Cal.App.4th 445, 480; see also Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 889, 94 Cal.Rptr.2d 505 [applying abuse of discretion standard of review in determining whether trial court erred in denying party’s motion to stay proceedings in light of pending related criminal proceeding].)
Here, the record shows that Seltzer filed her complaint against the Association in March 2003. More than five years later, in August 2008, Seltzer filed her motion for stay. The trial court’s decision that such an “aging” case should be brought to trial without further prolonged and indeterminate delay was reasonable. (See Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758 [noting that prolonged delay in prosecution “interferes with the orderly process of litigation and may make a fair trial unlikely”]). Thus, we cannot say the trial court abused its discretion by denying Seltzer’s motion for a stay of proceedings pending resolution of her suit against Allstate.
At oral argument Seltzer asserted that the trial court should have granted her request for a stay under Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 301-302 (Montrose) [holding that a coverage action should not proceed if it would result in a factual determination that would prejudice the insured in the underlying lawsuit — rather coverage action should be stayed until the underlying lawsuit is resolved], as well as GGIS Insurance Services, Inc. v. Superior Court (2008) 168 Cal.App.4th 1493, 1504 [stating that the Montrose rule requiring a stay is not limited to declaratory relief actions but applies wherever there is a risk that “litigation between an insurer and its insured may result in factual determinations that would prejudice the insured in a third party action against the insured”].) In this case, there is no evidence Seltzer was prejudiced at trial by prior factual determinations arrived at in coverage litigation between herself and Allstate. Therefore, the trial court was not mandated to award a stay as a matter of law under the Montrose rule.
C. Denial of Seltzer’s Motion to Remove Assessment Lien
In December 2007, the Association filed a request for dismissal without prejudice of the SACC’s first cause of action for judicial foreclosure and dismissal was entered as requested. In October 2008, Seltzer filed a motion to remove the Association’s assessment lien on the grounds that “the lien is false in fact and therefore unjustified in law, that [the Association] cannot prove the probable validity of the July 2002 Lien, and that [the Association’s] first cause of action for judicial foreclosure of the July 2002 Lien was voluntarily dismissed.” The trial court denied appellant’s motion.
Seltzer contends that the trial court’s order denying her motion to remove the assessment lien should be reversed with directions to grant the motion. We are not persuaded. First, to the extent that Seltzer contends that the assessment lien should have been removed because the Association abandoned its cause of action for judicial foreclosure, the contention fails because the Association is not limited to the remedy of judicial foreclosure to collect the assessments due but may record an assessment lien and collect the debt through a money judgment. (See Cal. Civ. Code § 1367, subdivision (f) [“Nothing in this section or in subdivision (a) of Section 726 of the Code of Civil Procedure prohibits actions against the owner of a separate interest to recover sums for which a lien is created pursuant to this section or prohibits an association from taking a deed in lieu of foreclosure”].)
Moreover, a motion to remove a lien is “a device that allows the property owner to obtain speedy relief from an unjustified lien or a lien of an unjustified amount without waiting for trial on the action to foreclose the lien.” (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 318, citing Lambert v. Superior Court (1991) 228 Cal.App.3d 383 [italics added].) In this case, the court rejected the reasons proffered by Seltzer as to why the lien was unjustified. Thus, Seltzer’s claim that the trial court erred when it denied her motion that the lien be removed as unjustified was rendered moot by the court’s findings in favor of the Association at trial. Accordingly we reject Seltzer’s claim of error on this ground.
D. Dismissal of Cimarron Defendants
According to Seltzer, in September 2004 the Cimarron Defendants (Cimarron, its owner and an employee) were properly served with summons and a copy of the TAC complaint, and failed to file a timely answer. In November 2004, Seltzer requested entry of default, which was entered by the clerk and served on the Cimarron Defendants’ attorney of record. Before trial, the court ruled, inter alia, that the defaults taken against the Cimarron Defendants were void under Civil Code, section 2924l (section 2924l ) and dismissed those defendants with prejudice.
We find no error on this point. Here, the record shows that the Cimarron Defendants served their declaration of non-monetary status of trustee under section 2924l on Seltzer on April 3, 2003. The record also shows that Seltzer served an objection to the declaration on April 24, 2003. Pursuant to section 2924l , where an objection is not served within 15 days, “the trustee shall not be required to participate any further in the action or proceeding, shall not be subject to any monetary awards [or damages]. (§ 2924l , subds. (c)-(d).) Because Seltzer failed to file a timely objection, the Cimarron Defendants were not required to participate further in the proceedings and no judgment could be entered against them. Accordingly, the trial court correctly determined that Seltzer’s default judgment against the Cimarron Defendants was void.
Pursuant to the provisions of section 2924l, a trustee named in an action who “maintains a reasonable belief that it has been named in the action or proceeding solely in its capacity as trustee, ” may file a declaration of nonmonetary status. (§ 2924l, subd. (a).) Plaintiff has “15 days from the service of the declaration by the trustee in which to object to the nonmonetary judgment status of the trustee. Any objection shall set forth the factual basis on which the objection is based and shall be served on the trustee.” (§ 2924l, subd. (c).) Also, if plaintiff does not serve an objection within 15-days, “the trustee shall not be required to participate any further in the action or proceeding... [and] shall not be subject to any monetary awards as and for damages, attorneys’ fees or costs....” (§ 2924l, subd. (d).) “Additionally, in the event that the parties... fail to, timely object to the declaration of nonmonetary status, but later... determine that the trustee should participate in the action because of the performance of its duties as a trustee, the parties may file and serve on all parties and the trustee a motion pursuant to Section 473 of the Code of Civil Procedure that specifies the factual basis for the demand. Upon the court’s granting of the motion, the trustee shall thereafter be required to participate in the action or proceeding, and the court shall provide sufficient time prior to trial for the trustee to be able to respond to the complaint....” (§ 2924l, subd. (e).)
E. Judgment for the Association
In its Corrected Judgment After Trial filed on May 14, 2009, the trial court stated: “Plaintiff’s request for an accounting of the net amount owed by either her or the association... [is] resolved as follows: As of February 1, 2009, plaintiff owes [the Association] the sum of $49,294:90, plus any late fees, interest and additional assessments that have come due after February 1, 2009; and defendants and cross-complainants owe plaintiff nothing.” Seltzer contends that “whether rendered as an equitable accounting or as damages for breach of contract, ” the money judgment for the Association should be reversed as a miscarriage of justice.
Seltzer cites no legal authority in support of her miscarriage of justice theory, nor does she identify a standard of review applicable to it. However, the thrust of her argument appears to be that the trial court’s judgment in favor of the Association was not supported by sufficient evidence. In reviewing a challenge to the sufficiency of the evidence, we consider all factual matters in the light most favorable to the prevailing party and in support of the judgment, recognize that all issues of credibility are within the province of the trier of fact, and limit ourselves to the issue of whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact. (See Washington v. Farlice (1991) 1 Cal.App.4th 766, 771-772.)
Seltzer attacks the judgment on the principal basis that the evidence offered at trial to establish the amount she owed in past dues was incompetent hearsay. This contention lacks merit. At trial, Lori Burger testified that in 2002 she was Vice-President of EBMC and the Association’s property manager. In the course of her testimony, Burger identified several printouts as accounting documents generated from accounting software programs utilized by EBMC between 1999 and 2006. Burger testified the accounting documents showed Seltzer’s assessment account history and that the entries were all made at or around the time that the transactions described occurred. Trial Exhibit 91D summarized Seltzer’s assessment account under the AMSI system EBMC used through December 2002, and it shows a closing balance due of $3,601.12. Trial Exhibit 91C summarized Seltzer’s assessment account under the Accpac system EBMC used from January 2003 through June 2006, and it shows a closing balance due of $23,530.27. Trial Exhibit 91B summarized Seltzer’s assessment account under the Yardi system EBMC used after mid-2006, and it shows a balance due of $48,285.95 as of January 2009. Trial Exhibit 91A is an Excel spreadsheet which combined the information from all three accounting software systems. EMBC uses such spreadsheets in the normal course of business to present homeowners with an easily-understandable overview of the entire assessment account history. The spreadsheet for Seltzer’s account shows a balance due of $49,294.90 as of February 2009.
Burger’s testimony, together with the documents properly authenticated by her, show the amounts Seltzer owed in assessments, late charges, interest and collection expenses. This evidence amply supports the trial court’s money judgment in favor of the Association. Thus, Seltzer’s sufficiency of the evidence argument fails.
F. Award of Costs
Seltzer contends that the award of costs in favor of defendants and cross-complainants was an abuse of discretion because it included “costs that were duplicative, costs that the claimants did not prove were necessary to the litigation or reasonable in amount, and were awarded as though the complaint and cross-complaint were separate actions. In support of this contention, Seltzer attached to her brief a chart that purportedly summarizes the costs claims and awards.
Regarding this contention, we note that “[t]he burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error.” (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) Moreover, the appellant has the duty “to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.” (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) “If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. (Citation.)” (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Likewise, an appellate court need not discuss or consider contentions on appeal not supported by citation to authority or to the record on appeal. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
Seltzer has not supported her challenge to the trial court’s award of costs with citations to the record or legal authority. Rather, Seltzer offers only unsubstantiated conclusory statements on the issue. Thus, we conclude Seltzer has waived this contention on appeal and has not carried her burden of affirmatively showing the trial court erred in its award of costs. (Fundamental Investment etc. Realty Fund v. Gradow, supra, 28 Cal.App.4th at p. 971; Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856; Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979.)
Disposition
The judgment is affirmed. Seltzer shall bear costs on appeal.
We concur: McGuiness, P. J., Siggins, J.