Opinion
B230103
02-14-2012
SUZANNE THEMELI, Plaintiff and Appellant, v. PORTS OF CALL OWNERS ASSOCIATION, INC., Defendant and Respondent.
Howard Gold and Marissa Garcia for Plaintiff and Appellant. Early, Maslach & Van Dueck, Stephen M. Ziemann; and Priscilla Slocum for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LC078513)
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Harwin, Judge. Affirmed.
Howard Gold and Marissa Garcia for Plaintiff and Appellant.
Early, Maslach & Van Dueck, Stephen M. Ziemann; and Priscilla Slocum for Defendant and Respondent.
Plaintiff and appellant Suzanne Themeli (Themeli) appeals a judgment following a grant of summary judgment in favor of defendant and respondent Ports of Call Owners Association, Inc. (the HOA) in an action for declaratory relief with respect to Themeli's claim she is entitled to two parking spaces in her condominium complex.
The trial court sustained all of the HOA's evidentiary objections to the evidence Themeli proffered in her opposition papers. Themeli has not challenged the trial court's evidentiary rulings on appeal. Because the trial court's sustaining of the HOA's evidentiary objections eviscerated Themeli's opposition papers, Themeli cannot show the existence of a triable issue. Therefore, the summary judgment must be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In this action, Themeli seeks declaratory relief against the HOA, contending she is entitled to the exclusive use of two parking spaces at Ports of Call, a condominium complex located on Lindley Avenue in Encino. Ports of Call, a 71-unit complex, does not have enough parking spaces for each unit to have two parking spaces.
Some of the two-bedroom units at Ports of Call have two parking spaces, while other two-bedroom units have only a single parking space. Themeli's operative fourth amended complaint alleged the 71-unit complex has a total of 99 parking spaces, which are currently allocated as follows: 14 spaces assigned to seven owners of three-bedroom units; 28 spaces assigned to 28 owners of one-bedroom units; 44 spaces assigned to 22 owners of two-bedroom units; and 13 spaces assigned to 13 owners of two-bedroom units (including Themeli's unit, No. 305).
The HOA's covenants, codes and restrictions (CC&Rs) were recorded in 1973. Themeli's two-bedroom condominium unit was designated as Unit 53 on the original condominium plan. Unit 53 subsequently was renumbered as Unit 305.
In 1974, a grant deed to Unit 305 was executed in favor of David Buchanan (Buchanan). In 1981, Buchanan executed a grant deed in favor of Ronald H. Semler as Trustee of the Ronald H. Semler Trust. In 1990, Unit 305 was conveyed to Themeli's parents, Alembi and Francis Themeli, by way of a grant deed.
1. Earlier proceedings.
In July 2007, Themeli, who inherited Unit 305 from her parents, commenced this action for declaratory relief, contending she is entitled to the exclusive use of two assigned parking spaces at Ports of Call.
In September 2008, the trial court sustained the HOA's demurrer to Themeli's fourth amended complaint without leave to amend. It ruled, inter alia, there were no facts showing that Themeli ever was assigned two parking spaces other than from a previous owner, no facts showing that Semler was ever entitled to two parking spaces, and the Semler/Themeli escrow instructions were irrelevant and nonbinding on the HOA.
Themeli appealed the judgment of dismissal.
In our prior opinion in this matter (Themeli v. Ports of Call Owners Association, Inc. (Nov. 20, 2009, B211967) [nonpub. opn.]), we reversed and remanded for further proceedings, on the ground the trial court erred in purporting to resolve the merits of the entire declaratory relief controversy on demurrer.
2. Proceedings on remand.
The fourth amended complaint, which was the operative pleading on remand, alleged, inter alia, Themeli's longtime tenant in Unit 305, Norma Lampkin (Lampkin), used two parking spaces at Ports of Call without any objection, and that the HOA did not assert until 2006 that Themeli's unit was limited to a single parking space.
a. Moving papers.
On July 22, 2010, the HOA filed a motion for summary judgment on the ground there is no controversy to be adjudicated because the evidence established Themeli never was entitled to the exclusive use of two parking spaces at Ports of Call. The moving papers were supported by the HOA's separate statement of undisputed facts and supporting evidence, including the declaration of Janice Feuer (Feuer), the owner of Unit 218 at Ports of Call.
The Feuer declaration stated: between the years 1991 and 2005, Feuer's mother rented out parking space to other residents because she did not drive and did not own a car. Feuer's mother rented space number 36 to Themeli's tenant, Norma Lampkin, between the years 1996 and 2005, when Lampkin moved out.
The HOA cited this evidence to show Unit 305 only had one assigned parking space, which is why Themeli's tenant rented a second parking space from Feuer's mother for nearly a decade.
b. Opposition papers.
In opposition, Themeli contended she had sufficient evidence to raise a triable issue of material fact with respect to her entitlement to two parking spaces. Themeli asserted, inter alia, her parents' pre-purchase inspection report listed two parking spaces, their escrow instructions listed two parking spaces, and during the initial walk-through of the property after the purchase, Bruce Boyd, who was then president of the HOA, identified two parking spaces that were assigned to Unit 305.
Themeli's responsive separate statement disputed only one of the HOA's nine material facts, to wit, that "Unit 305 was assigned one parking space." In addition, Themeli proffered six additional disputed material facts to resist summary judgment, contending, inter alia, Lampkin never rented a parking space from Feuer's mother.
c. Reply papers.
In its reply, the HOA argued that if Semler promised Themeli's parents something that he couldn't deliver to them, that was a matter between Semler and Themeli's parents and was not binding on the HOA. Further, the second parking space "to which [Themeli] now lays claim is parking spot 42. Parking spot 42 is assigned to unit 215. This is the only parking space assigned to unit 215. If plaintiff takes this parking space then unit 215 is left with no parking spaces, of which she is well aware as her own complaint alleged in [paragraph] 83 that unit 215 is one of the two-bedroom condominiums that has only one parking space."
The HOA also filed extensive written evidentiary objections to the evidence contained in Themeli's opposition papers, raising hearsay, relevancy, lack of foundation and other grounds.
d. Trial court's ruling.
On October 5, 2010, the matter came on for hearing. The trial court sustained the HOA's evidentiary objections in their entirety. The trial court then ruled as follows: "The opposition put forth by plaintiff does not raise a triable issue of fact. The only fact plaintiff attempts to dispute is fact number 9, that unit 305 was assigned only one parking space. However, her opposition presents no admissible or relevant evidence to raise a triable issue as to this fact. The undisputed evidence is that unit 305 was only assigned one parking space. Therefore, [the HOA] is entitled to summary judgment in this matter."
On November 5, 2010, the trial court entered judgment in favor of the HOA and awarded the HOA costs of suit and attorney fees.
On January 6, 2011, Themeli filed a timely notice of appeal from the judgment.
Thereafter, the trial court ordered Themeli to pay the HOA $17,890 in attorney fees as the prevailing party in the action.
CONTENTIONS
Themeli contends: the defense motion for summary judgment should have been denied because she met her burden of presenting evidence of a triable issue; the trial court committed reversible error by improperly weighing the evidence on the motion for summary judgment; the trial court erred in confusing the evidence presented; and the award of costs and attorney fees to the HOA must be reversed.
DISCUSSION
1. Standard of appellate review.
Summary judgment "motions are to expedite litigation and eliminate needless trials. [Citation.] They are granted 'if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' [Citations.]" (PMC, Inc. v. SabanEntertainment, Inc. (1996) 45 Cal.App.4th 579, 590.)
A defendant meets its burden upon such a motion by showing one or more essential elements of the cause of action cannot be established, or by establishing a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, at p. 849; Code Civ. Proc., § 437c, subd. (p)(2).)
We review the trial court's ruling on a motion for summary judgment under the independent review standard. (Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050.)
2. Trial court properly granted the HOA's motion for summary judgment; the trial court's evidentiary rulings, which Themeli has not challenged on appeal, eviscerated her opposition papers; consequently, Themeli failed to raise a triable issue of material fact in resisting summary judgment.
Code of Civil Procedure section 437c provides in pertinent part at subdivision (c): "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . ." (Italics added.)
Themeli does not contend the trial court abused its discretion in any of its evidentiary rulings.
In ruling on the HOA's evidentiary objections, the trial court sustained the HOA's written objections in their entirety. The HOA's objections were directed at virtually all the evidence Themeli cited in her responsive separate statement and in her separate statement of additional disputed facts. The evidence which was excluded included: excerpts from Themeli's opposing declaration; excerpts from Themeli's deposition testimony; the escrow instructions relating to Themeli's parents' acquisition of Unit 305 from the prior owner; a report of a home inspection conducted on behalf of Themeli's parents at the time they purchased the property; and excerpts from the deposition of Tillie Shapiro, a former president of the HOA.
On appeal, Themeli contends the summary judgment should be reversed because she presented sufficient evidence to raise a triable issue of material fact. The fatal flaw in the appeal is that Themeli has disregarded the impact of the trial court's evidentiary rulings, which stripped her opposition papers of any evidentiary support.
In her reply brief, Themeli asserts that "[a]lthough the trial court may have sustained some of [the HOA's] evidentiary objections to [her] evidence," sufficient evidence survived to raise a triable issue of material fact. Themeli's characterization of the record is inaccurate. This court has reviewed all the evidence cited by Themeli in her responsive separate statement and in her separate statement of additional disputed material facts, against the backdrop of the trial court's evidentiary rulings. The trial court's sustaining of the HOA's evidentiary objections rendered Themeli's disputed material facts bereft of any evidentiary support. Therefore, the grant of summary judgment was proper.
3. The issue of costs and attorney fees.
Themeli does not contend the HOA was not entitled to attorney fees or that the fee award was excessive. Themeli's sole contention in this regard is that because the summary judgment must be reversed, the award of costs and attorney fees likewise must be set aside.
Because we affirm the judgment in favor of the HOA, there is no basis to disturb the trial court's ruling as to attorney fees and costs.
DISPOSITION
The judgment is affirmed. The HOA shall recover its costs on appeal, as well as its reasonable attorney fees pursuant to Civil Code section 1354.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
ALDRICH, J.