Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County, Richard Adler, Judge. No. LC078513
Howard Gold for Plaintiff and Appellant.
Early, Maslach & Van Dueck and Sandra D. Carter for Defendant and Respondent.
KLEIN, P. J.
Plaintiff and appellant Suzanne Themeli (Themeli) appeals a judgment of dismissal following the sustaining without leave to amend of a demurrer interposed by defendant and respondent Ports of Call Owners Association, Inc. (the HOA) to Themeli’s fourth amended complaint. Themeli also appeals a postjudgment order awarding attorney fees to the HOA.
Themeli, the owner of a condominium unit and a member of the HOA, contends her apartment unit, No. 305, is entitled to two assigned parking spaces in the building’s common area. Themeli filed a complaint against the HOA for declaratory relief, seeking a judicial determination with respect to the rights of the parties in this regard.
The essential issue presented is whether Themeli properly stated a cause of action against the HOA for declaratory relief. In ruling on the matter, the trial court issued a 27-page minute order followed by an 11-page judgment sustaining the demurrer without leave to amend. In sum, the trial court held Themeli failed to show she “was granted the right to two parking spaces, and which two parking spaces she is entitled.”
The trial court erred in purporting to resolve the merits of the entire controversy on demurrer. It is well settled that a complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument or with respect to property and requests that these rights and duties be adjudged by the court. If a case complies with the requisites of declaratory proceedings, the plaintiff is entitled to declaration of his or her rights even if that declaration is adverse to his or her interest. (Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 221, disapproved on other grounds by State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1036, fn. 11 (Lockheed).)
Therefore, the judgment is reversed with directions to reinstate the fourth amended complaint and the matter is remanded for further proceedings. The postjudgment order awarding attorney fees to the HOA is also reversed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Pleadings.
On July 12, 2007, Themeli commenced this action against the HOA for declaratory relief. After the trial court repeatedly sustained the HOA’s demurrers to Themeli’s pleadings with leave to amend, Themeli filed the operative fourth amended complaint on July 1, 2008.
Themeli pled in pertinent part: Paragraph 16 of the HOA’s declaration of covenants, conditions and restrictions (CC&R’s), recorded in 1973, states: “All parking spaces and parking area shall belong to the Association and be considered common area, upon the recordation of this Declaration. Such parking spaces shall be permanently assigned by Declarant on behalf of the Association to purchasers of the units until such time as all of the units have been sold. Declarant shall be the only party entitled to make such assignments on behalf of the Association, even after the Association’s organizational meeting. Each purchaser of a unit shall be entitled to at lease (sic) one parking space. All such parking spaces assigned shall be designated on a parking chart and identified by space number in the instrument of assignment. All such parking spaces shall be used only be (sic) owners and their lessees and all such persons shall be required to have and keep in force, property damage coverage of their automobiles. An owner may reassign any space or spaces originally assigned to him to other owners, or to subsequent purchasers of his unit, provided, however, that he sends written notice of such reassignment to the Association.”
A copy of the CC&R’s was appended as an exhibit to the complaint.
Themeli alleged that in the early 1970’s, the HOA assigned parking spaces P-53 and P-64 to Unit 53 (aka Unit 305). In support, Themeli appended a copy of an undated parking chart, exhibit Q, which indicated that parking spaces P-53 and P-64 were tandem spaces, and because the parking spaces were tandem, it was always intended those spaces would be assigned to the same unit.
Themeli further alleged that in October 1989, her parents (now deceased) purchased Unit 305 from Ronald Semler, the developer of the project. The escrow instructions (a copy of which was appended to complaint) stated in relevant part: “The subject of this transaction is a condominium/planned unit development (P.U.D.) designated as unit 305 and 2 parking space(s) and an undivided interest in community areas.” (Italics added.)
Themeli further pled that in January 1990, Semler’s agents and/or the HOA reassigned two separate spaces, P-69 and P-42, to Themeli’s parents instead of tandem spaces P-53 and P-64. From 1989 through 1994, Themeli family members regularly used those two parking spaces without objection by the HOA.
The subject property was damaged in the 1994 Northridge earthquake, causing Themeli’s parents to relocate to Arcadia.
In 1996, after the building was repaired, Unit 305 was leased to the Lampkin family, who resided there for nine years and used at least two parking spaces.
In March 2006, when Unit 305 was ready for new tenants, Themeli’s real estate agent, William Nicholas, asked the HOA’s management company for two gate passes. The HOA’s agent told Nicholas the HOA would issue only one gate pass for only one parking space. Therefore, Themeli filed the instant lawsuit to determine her entitlement to two parking spaces in the HOA’s common areas.
2. Demurrer.
The HOA demurred, contending the declaratory relief claim was vague, ambiguous and failed to state a cause of action that Themeli was entitled to declaratory relief. The HOA argued Themeli failed to provide any documents to support her assertion that Unit 305 had two parking spaces assigned to it. With respect to Exhibit Q to the fourth amended complaint, a parking chart which showed tandem parking spaces 53 and 64 assigned to Unit 53 (aka Unit 305), the HOA asserted the assignment of those spaces to Unit 53 was “an apparent transcription error” and that Exhibit N establishes parking spaces 53 and 64 were actually assigned to Unit 116. The HOA also sought to construe Themeli’s estoppel allegations, based on her longtime usage of two parking spaces, as an admission that only one space had been assigned to Unit 305.
3. Trial court’s ruling and judgment.
The trial court began its ruling by acknowledging that a demurrer can only be used to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable.
The trial court then found “[T]here are no facts showing that Plaintiff was ever assigned 2 parking spaces other than from a prior owner and there are no facts showing that Ronald Semler was ever entitled to two parking spaces.” The trial court ruled the Semler/Themeli escrow instructions were irrelevant and nonbinding on the HOA.
The trial court agreed with the HOA that Exhibit Q, a parking chart showing tandem spaces P-53 and P-64 assigned to Unit 53 (aka Unit 305), was the product of a transcription error.
The trial court further weighed the evidence by “not[ing] that if [Themeli] was entitled to 2 parking spaces, why did [a neighbor] lease 1 space to [Themeli’s] prior tenant, Norma Lampkin?”
The trial court concluded “there is no evidence of any agreement between [the HOA] and [Themeli] regarding a second parking space.”
On September 2, 2008, the trial court entered judgment sustaining the demurrer to the fourth amended complaint without leave to amend.
4. Attorney fees.
The HOA subsequently moved for attorney fees pursuant to Civil Code section 1354, which authorizes an award of attorney fees to the prevailing party in an action to enforce CC&R’s.
On October 16, 2008, the trial court awarded the HOA attorney fees in the sum of $10,112.50 for services rendered by the firm of Domine Adams and $13,000 for services rendered by Early, Maslach and Van Dueck.
On October 31, 2008, Themeli filed a timely notice of appeal from the judgment and from the postjudgment order re attorney fees.
CONTENTIONS
Themeli contends the trial court erred in sustaining the demurrer to the complaint for declaratory relief in that it sufficiently set forth the requisite elements for stating a viable cause of action under that theory.
DISCUSSION
1. Standard of appellate review.
In determining whether a plaintiff has properly stated a claim for relief, “our standard of review is clear: ‘ “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.’ [Citations.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Our review is de novo. (Ibid.)
2. General principles.
a. Pleading requirements for declaratory relief.
“A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court. (Code Civ. Proc., § 1060; Maguire v. Hibernia Sav. and Loan Soc. (1944) 23 Cal.2d 719 [146 P.2d 673].)” (Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 947, italics added.)
b. A plaintiff is entitled to declaratory relief even if the plaintiff is not entitled to a favorable declaration; demurrer is a procedurally inappropriate way of disposing of complaint for declaratory relief.
The pertinent principles are amply set forth in Lockheed, supra, 134 Cal.App.4th at page 221: “To be entitled to declaratory relief the party need not establish a right to a favorable declaration. ‘A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court. [Citations.] If these requirements are met and no basis for declining declaratory relief appears, the court should declare the rights of the parties whether or not the facts alleged establish that the plaintiff is entitled to favorable declaration. [Citations.]’ (Wellenkamp v. Bank of America[, supra,] 21 Cal.3d [at p. 947].) ‘It is the general rule that in an action for declaratory relief the complaint is sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a contract and requests that the rights and duties be adjudged.... If these requirements are met, the court must declare the rights of the parties whether or not the facts alleged establish that the plaintiff is entitled to a favorable declaration.’ (Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 549-550 [305 P.2d 20]....)” (Italics added.)
Lockheed explains: “Strictly speaking, a demurrer is a procedurally inappropriate method for disposing of a complaint for declaratory relief. As Witkin observes: ‘[A] demurrer would leave the parties where they were, with no binding determination of their rights, to await an actual breach and ensuing litigation. This would defeat a fundamental purpose of declaratory relief, to remove uncertainties as to legal rights and duties before breach and without the risks and delays that it involves. In brief, the object of declaratory “relief” is not necessarily a beneficial judgment; rather, it is a determination, favorable or unfavorable, that enables the plaintiff to act with safety. This theory has prevailed, and the rule is now established that the defendant cannot, on demurrer, attack the merits of the plaintiff's claim. The complaint is sufficient if it shows an actual controversy; it need not show that plaintiff is in the right.’ (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading § 831, p. 289.)” (Lockheed, supra, 134 Cal.App.4th at p. 221, italics added.)
3. The fourth amended complaint adequately states a claim for declaratory relief.
As set forth above, a complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court. (Lockheed, supra, 134 Cal.App.4th at p. 221.)
Here, Themeli’s fourth amended complaint set forth facts showing the existence of an actual controversy relating to Unit 305’s alleged entitlement to two assigned parking spaces in the HOA’s common area, and it requested the court to adjudicate the controversy. Therefore, the cause of action for declaratory relief was legally sufficient to withstand demurrer, irrespective of whether Themeli is entitled to a favorable declaration.
We are also mindful of the rule that “where an ambiguous contract is the basis of an action, it is proper, if not essential, for a plaintiff to allege its own construction of the agreement. So long as the pleading does not place a clearly erroneous construction upon the provisions of the contract, in passing upon the sufficiency of the complaint, we must accept as correct plaintiff’s allegations as to the meaning of the agreement. (Pigeon Point Ranch, Inc. v. Perot (1963) 59 Cal.2d 227, 233.)” (Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 128.) Here, Exhibit Q to the complaint, an HOA parking chart, indicates that tandem spaces P-53 and P-64 were assigned to Unit 53 (aka Unit 305). The HOA’s demurrer characterized that notation on Exhibit Q as “an apparent transcription error.” Whether said parking chart should be disregarded as erroneous is not a cognizable issue on demurrer. At this stage of the proceedings, Themeli is entitled to allege her own construction of the parking chart found at Exhibit Q.
Assuming arguendo, as the HOA contends, and as the trial court found, Themeli lacks evidence to support her assertion that Unit 305 is entitled to two parking spaces, that would be a basis for defendant HOA to obtain summary judgment. However, such lack of evidence would not be a basis for sustaining a demurrer to Themeli’s cause of action for declaratory relief.
A defendant may move for summary judgment by “present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence – as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855; see Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1401-1402 [applicability of summary judgment procedure to declaratory relief actions].)
We express no opinion as to the merits of Themeli’s claim Unit 305 is entitled to two assigned parking spaces. We merely hold the cause of action for declaratory relief was sufficient to withstand demurrer.
4. Reversal of judgment also requires reversal of attorney fee order.
In view of our reversal of the judgment with directions to reinstate the complaint, there is as yet no prevailing party. Therefore, the October 16, 2008 order awarding attorney fees to the HOA must also be reversed.
DISPOSITION
The judgment is reversed with directions to vacate the order sustaining the demurrer to the fourth amended complaint without leave to amend and to enter a new order overruling the demurrer, and the matter is remanded for further proceedings not inconsistent with this opinion. The postjudgment order awarding attorney fees to the HOA also is reversed. Themeli shall recover her costs on appeal.
We concur: KITCHING, J. ALDRICH, J.