Adams Stirling PLC

Court of Appeal, Fourth District, Division 2
(11/1/2019) UNPUBLISHED

APPEAL from the Superior Court of Riverside County. Randall S. Stamen, Judge. Affirmed. (Super.Ct.No. RIC1711026)

Attorneys and Law Firms

Steven A. Blum and Gary Ho for Plaintiffs and Appellants.

Wait & Hufnagel, Thomas B. Wait and Austin S. Haigh for Defendant and Respondent.

McKINSTER, Acting P.J.

*1 Plaintiffs and appellants Lavonne Jongerius, Edward Cosgrove, Denise Cosgrove, Gordon I. Jensen, and Shumei Chen (collectively referred to as plaintiffs) appeal from the summary judgment entered in favor of defendant and respondent Sun Lakes Country Club Homeowners Association (the Association), on plaintiffs’ complaint, which sought damages resulting from the Association’s decision regarding the soil subsidence occurring on a common area slope that runs adjacent to plaintiffs’ homes. Applying the rule of judicial deference articulated in  Lamden v. LaJolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249 (Lamden), the trial court ruled the Association’s decision regarding the repair and maintenance of the common area slope/wall was based on a reasonable investigation and made in good faith and with regard for the best interests of the Association and its members. Plaintiffs contend the trial court should have applied the rule in Sprecher v. Adamson Companies, Inc. (1981) 30 Cal.3d 358, 362 (Sprecher), which provides that a possessor of land is not immune from liability for harm caused by a natural condition of the land under his or her control and management. We conclude the trial court correctly applied the Lamden rule of deference and affirm.


Plaintiffs are next-door neighbors in the residential community known as Sun Lakes Country Club, located in Banning, California. The Association is a nonprofit corporation operating as a homeowners’ association (HOA). Plaintiffs live on Singing Hills Drive, with a slope running downhill into a pond behind their homes. The Association maintains the slope and the common wall that runs along the top of the slope as part of the HOA’s common areas. However, it has no responsibility for maintaining, repairing, or building improvements upon homeowners’ lots.

The Association’s declaration of covenants, conditions, and restrictions (CC&Rs) set forth its duties to members as they pertain to the use and maintenance of the common areas, such as the slope behind plaintiffs’ properties. Article VI, section 6.01, in relevant part, provides: “The Association shall have the obligation, subject to and in accordance with this Declaration, to perform, by action of the Board, each of the following duties: [¶] ... [¶] (c) Maintenance. The duty to maintain or provide for the maintenance of all Association Properties and Maintenance Areas in a safe and attractive condition, suitable for the uses and purposes for which they are intended, including but not limited to the power and duty to contract for such goods and services as may be necessary or convenient for such maintenance ....” Article XII, section 12.14, in relevant part, states: “Neither ... the Association, Delegates, the Board (and each member or officer thereof); nor any of them, shall be liable for any failure to provide any service or perform any duty, function or responsibility designated or provided in this Declaration or by the Bylaws, unless caused by his or its willful misconduct.”

*2 In 2004, the Association became aware of slope subsidence and installed crack meters to measure the cracks between plaintiffs’ side yard walls and the rear common wall. Shortly thereafter, the Association began working with homeowners to address the cracks developing along the rear common walls. It held meetings with homeowners, engineers, and the property developer. When the property developer failed to make repairs to the rear common walls, the Association initiated litigation on July 5, 2006, seeking damages for, inter alia, “ ‘excessive slope creep, slope movement and subsidence.’ ”

The Association undertook extensive investigation of slope movement. In 2006, it retained civil engineer Dale Hinkle “to investigate and provide independent expert analysis regarding the nature, extent, and cause of the slope subsidence occurring adjacent to the lots” owned by plaintiffs. He found no evidence of slope instability. Between 2006 and 2010, he produced several reports based on his continued investigation.

According to his July 2006 report, Mr. Hinkle observed “considerable movement of the fills on this site, mostly laterally near the top of the slope. [However, t]he houses show no damage because they are approximately 20 feet from the top of slope.” One year later, in July 2007, he reported that “[t]he behavior of this fill indicates that it may continue to settle for as much as 10 more years.”

In his December 2007 report, he stated, “[t]he data shows only very slight movement in the past year. The lateral movement at the surface is in the range of .02 inches to the northeast in the past year. This is very near the limits of reading accuracy for the equipment. This amount of movement would be considered very small. [¶] We explained before that this fill is 20 years old and should be near the end of its movement. For practical purposes, this fill could be considered as stopped moving.”

In his March 2008 report, Mr. Hinkle noted “[t]here is evidence that the [slope] walls are continuing to move but at very low rates. This is typical of fills of this age. The deeper fills move more, the taller slopes move more and the thinner fills move less.” He added, “[t]he slope creep movement at this site is typical of creep-prone fill soils. The movement appears to be slowing and is near the end of its creep cycle, but we cannot predict when it will stop.” Based on his findings, Mr. Hinkle concluded, “A perfect repair procedure would be to install a caisson-supported wall and grade beam system at the top of slope. This would require caissons approximately two feet [in] diameter, six feet on center and 30 feet± deep. It does not seem reasonable to go to such a costly, disruptive repair for slopes which are inherently stable and are near the end of the creep cycle.”

In both the August 2008 and February 2010 reports, Mr. Hinkle noted further slope creep, but “no evidence of impending catastrophic failure.” In his February 2010 report, he added, “We see no cause for alarm; the behavior is typical for creeping fill slopes. We recommend continued monitoring. The continued movement in the same direction provides absolute proof that the slope is creeping and will continue. Any proposed repair plan should provide for continued movement.”

In January 2011, the Association settled its litigation with the developer for $300,000. Based on Mr. Hinkle’s reports, the Association “retained an engineering firm, Helfrich & Associates, Inc. (Helfrich), to conduct another site inspection and to prepare repair recommendations that would alleviate the damage the slope creep was causing to the rear common wall running along the subject slope.” Upon its inspection, Helfrich advised against Mr. Hinkle’s recommended fixes and, instead, opined that the “ ‘most appropriate means of repair for the walls is to fill the separations with non-shrinking grout, cosmetically patch, texture coat, and paint the walls’ ” every few years.

*3 In January 2011, the Association, through its general manager Jeremy S. Wilson, notified members about the settlement with the developer and confirmed the settlement proceeds would be used to repair the “common area boundary wall displacement and separation.” The Association also informed members that it had “sought, but did not recover, sufficient funds to repair sections of rear lot side-yard walls which were installed by individual homeowners and which intersect the common area boundary wall. These side-yard walls (and other improvements located on the members’ lots) remain the members’ responsibility to repair and maintain.”

On June 30, 2011, the Association sent a letter to the homeowners affected by the slope issue and informed them of its decision to use the litigation settlement funds to make repairs to the rear common wall. Homeowners were informed the Association would hire Helfrich to investigate and prepare engineering plans for the repair of the common wall only, not the side lot walls nor any patios, planters or real property of the individual homeowners. Homeowners were instructed to retain the services of a licensed engineering firm to investigate any concerns regarding their own real properties; however, the Association “will have no active involvement” with individual homeowner’s concerns. The homeowners were also provided an opportunity to attend a meeting with the Association’s board “ ‘to review and discuss the proposed repairs’ ” to address the slope creep issue.

On September 21, 2011, Helfrich presented an evaluation and repair recommendations for the slope to the Association’s board. Helfrich detailed several possible solutions to address the damage to the rear common walls, including installing a caisson wall; however, periodic cosmetic repairs were recommended. After Helfrich’s presentation, the board considered the information and recommendations, and then “unanimously voted to secure bids to cosmetically repair the rear common walls pursuant to ... Helfrich’s recommendation.” The Association concluded it was the most economically feasible solution since constructing caisson walls would have cost the Association over $4 million.1 The Association noted that its funds come primarily from member dues, there is no option to prevent slope creep/movement that is of reasonable cost and would avoid placing an undue burden on its members, and there is no option to prevent slope creep/movement that is free of risk of harming adjacent properties during the construction process. While the Association had “periodically repair[ed] any further cracks and separations to the rear common wall if and when they develop[ed],” no excavations, grading, filling, or removing of dirt on or around the slope had been undertaken. The Association’s “plan of action has been and remains to periodically repair any further cracks and separations to the rear common wall if and when they develop.”

On June 16, 2017, plaintiffs filed a complaint for damages against the Association alleging causes of action for (1) negligence, (2) nuisance, (3) breach of CC&Rs, and (4) removal of lateral and subjacent support in violation of Civil Code section 832. They claimed the Association negligently failed to maintain the common area slope pursuant to the CC&Rs and, as a proximate result of this negligence, in or about January 2017, the common area slope failed, causing substantial and new damage to their properties, including approximately six inches of lateral movement. On July 20, 2018, the Association successfully moved for summary judgment on the grounds the judicial deference rule bars plaintiffs’ claims. Plaintiffs appeal.


*4 Plaintiffs contend the trial court erred in applying the judicial deference rule to shield the Association from liability for their damages. We disagree.

A. Applicable Law and Standard of Review.

A 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.” ( Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has the initial burden of showing either that one or more elements of the cause of action cannot be established or that there is a complete defense. ( Code Civ. Proc., § 437c, subds. (o),  (p)(2);  Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).) If the initial burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. ( Code Civ. Proc., § 437c, subd. (p)(2); Saelzler, at p. 768.)

We review a summary judgment ruling de novo. ( Saelzler, supra, 25 Cal.4th at p. 768.) “We must view the evidence submitted in connection with a motion for summary judgment in a light most favorable to the party opposing the motion and resolve ‘any evidentiary doubts or ambiguities in plaintiff’s favor.’ [Citation.] We independently determine whether the record supports the trial court’s conclusions that the asserted claims fail as a matter of law, and we are not bound by the trial court’s stated reasoning or rationales.” (County of San Diego v. Superior Court (2015) 242 Cal.App.4th 460, 467.)

B. Liability of Landowners under Sprecher and Lamden.

“Since  Rowland v. Christian (1968) 69 Cal.2d 108 ..., the liability of landowners for injuries to people on their property has been governed by general negligence principles.” ( Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407.) The essential elements of a negligence claim against a property owner are: (1) the defendant owned the property; (2) the defendant was negligent in the use or maintenance of the property; and (3) the defendant’s negligence was a substantial factor in causing plaintiff’s injury. (See  Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158-1159.) The same general negligence principles govern damage occurring off the property due to mismanagement of the property. ( Sprecher, supra, 30 Cal.3d at pp. 363-365, 368, 371-372;  Davert v. Larson (1985) 163 Cal.App.3d 407, 410 [“A landowner or possessor owes a duty of care to persons who come on his property as well as to persons off the property for injuries due to the landowner’s lack of due care in the management of his property.”].)

In support of their argument that the Association is liable under the common law rule of landslide liability, plaintiffs rely on Sprecher. In that case, the downhill property was damaged from a naturally occurring landslide, which had been triggered by heavy rains. ( Sprecher, supra, 30 Cal.3d at pp. 360-361.) The downhill landowner sued the uphill landowner, who argued it had no duty to remedy a natural condition simply because it owned the upslope land. ( Id. at p. 361.) The California Supreme Court disagreed, rejecting the common law rule that immunized a landowner from liability for injury caused by a natural condition of his or her land to persons or property not on his or her land. ( Id. at p. 362-372.) Concluding a duty of care exists, the Supreme Court held that a landowner’s liability for harm caused by a condition of his or her property, no matter if the condition is natural or artificial, is determined by ordinary negligence principles imposing the duty of reasonable care in the control and maintenance of the property. ( Id. at pp. 363-365, 368, 371-372.)

*5 While Sprecher allows plaintiffs to allege negligence against landowners for harm caused by a naturally occurring condition of the property, Lamden provides the affirmative defense of judicial deference when the defendant is a homeowners association. ( Affan v. Portofino Cove Homeowners Assn. (2010) 189 Cal.App.4th 930, 940 (Affan).) “In Lamden, a condominium development experienced a persistent problem with termites. At various points, the homeowners association consulted with contractors and pest control experts and ‘[o]ver some years ... elected to spot-treat ... rather than fumigate ... for termites.’ [Citation.] The plaintiff, an owner of a condominium in the development, disagreed with that choice and sued for damages, an injunction, and declaratory relief. She alleged that in opting only to spot treat the infestation, the Association failed to maintain and repair the development’s common areas as required by the CC&R’s and the Civil Code. [Citation.] At trial, she waived damages and sought only an injunction and declaratory relief.

“The trial court applied a ‘ “business judgment test” ’ in evaluating the Association’s decision to spot treat rather than fumigate. [Citation.] The trial court found the Association, after ordering extensive remedial and investigative work, weighed the costs and benefits of both treatment methods, including the ‘possible problems entailed by fumigation,’ such as ‘relocation costs, lost rent, concerns about pets and plants, human health issues and eventual termite reinfestation.’ [Citation.] The trial court concluded the board’s deliberative process provided it with ‘ “a rational basis for their decision to reject fumigation, and do ... what they did,” ’ and entered judgment for the Association. [Citation.]

“The Court of Appeal reversed, holding that the trial court should have analyzed the Association’s actions using ‘an objective standard of reasonableness’ rather than the more easily met business judgment test. [Citation.] The California Supreme Court granted review to answer the following question: ‘In adjudicating [the homeowner’s] claims, under what standard should a court evaluate the board’s decision?’ [Citation.]

“In answering that question, the Supreme Court rejected the approaches of both lower courts and announced a new rule of ‘judicial deference’ to the ordinary maintenance decisions of homeowners associations. The Lamden opinion made clear, however, that the rule applies only in limited circumstances. The court described those specific circumstances as follows: ‘Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development’s common areas, courts should defer to the board’s authority and presumed expertise.’ [Citation.] As justification for this deference, the court noted ‘the relative competence, over that of courts, possessed by owners and directors of common interest developments to make the detailed and peculiar economic decisions necessary in the maintenance of those developments.’ [Citation.]

“It is important to note the narrow scope of the Lamden rule. It is a rule of deference to the reasoned decisionmaking of homeowners association boards concerning ordinary maintenance. It does not create a blanket immunity for all the decisions and actions of a homeowners association.” (Affan, supra, 189 Cal.App.4th at pp. 938-940.)

Plaintiffs contend Lamden should not be applied to the facts in this case because it “only applies in narrow circumstances involving damage to common areas, not to private properties that the HOA doesn’t own.” They argue that “[i]n more than fifty appellate decisions that have applied Lamden, judicial deference is only given to HOA decisions that affect common areas, not private properties owned by third parties.” We are not persuaded. In discussing damage caused by the failure to repair or maintain common areas, the Lamden court never distinguished personal or separate property from common area property. Rather, the Lamden court specifically noted that the plaintiff claimed diminution in value of her condominium unit and “repair expenses” she had incurred in addressing the termite damage. ( Lamden, supra, 21 Cal.4th at p. 255.) Nonetheless, plaintiffs assert the “2010 appellate decision in Affan ... showed the limit of Lamden’s judicial deference rule” when the court found the association liable for damages to plaintiff’s private property, the condominium unit. However, the Affan court’s decision was not based on a distinction between community and private property. In Affan, the owners of a condominium unit sued the HOA alleging negligence in the maintenance and repair of the common area plumbing causing sewage eruption that flooded plaintiffs’ unit. ( Affan, supra, 189 Cal.App.4th at pp. 933-935.) In refusing to apply the judicial deference rule, the court cited the HOA’s “10-year failure to undertake any maintenance of the condominium complex’s main plumbing lines, despite knowledge of a recurring plumbing problem in first-floor units.” ( Id. at p. 942.)

*6 In cases such as the one before this court, involving a homeowners association and its members, we conclude Lamden applies. As the California Supreme Court stated, “ ‘[A]nyone who buys a unit in a common interest development with knowledge of its owners association’s discretionary power accepts “the risk that the power may be used in a way that benefits the commonality but harms the individual.” ’ ” ( Lamden, 21 Cal.4th at pp. 269-270.) Moreover, our Supreme Court rejected “any per se rule ‘requiring a condominium association and its individual members to indemnify any individual homeowner for any reduction in value to an individual unit caused by damage.... Under this theory the association and individual members would not only have the duty to repair as required by the CC&Rs, but the responsibility to reimburse an individual homeowner for the diminution in value of such unit regardless if the repairs had been made or the success of such repairs.’ ” ( Id. at p. 270.)

C. The Trial Court Did Not Err in Applying the Judicial Deference Rule.

Because the judicial deference rule is an affirmative defense, we begin by analyzing whether the Association carried its burden of establishing the requisite elements for applying the rule. ( Affan, supra, 189 Cal.App.4th at pp. 940-941.) According to the undisputed facts, the Association extensively investigated the slope creep/movement issue over the course of several years, beginning in 2004 and continuing through 2011. It hired Mr. Hinkle, a soils expert, whose investigation included physical inspections, boring for soil samples, and regular inclinometer readings. As a result of his investigation, he reported that he was unable to predict the end of the slope’s movement; however, it appeared to be slowing and near the end. Based on his findings, he concluded, “[a] perfect repair procedure would be to install a caisson-supported wall and grade beam system at the top of the slope.... [However, i]t does not seem reasonable to go to such a costly, disruptive repair for slopes which are inherently stable and are near the end of the creep cycle.” The estimated cost to install a caisson-supported wall was “approximately $100,000 per home.” Mr. Hinkle found “no evidence of impending catastrophic failure” or “cause for alarm” since “the behavior is typical for creeping fill slopes.” The Association sued the developer and settled for $300,000. It hired another engineering firm, Helfrich, to conduct another inspection of the slope and prepare engineering plans for repairing the rear common wall running along the slope. Helfrich agreed that installation of a caisson wall would be unreasonable. Instead, the company recommended repairs directly to the rear common wall.

Following the investigations of Mr. Hinkle and Helfrich, the Association concluded Helfrich’s recommendation was the most prudent option to address any damage caused by the slope creep/movement. This conclusion was based on the Association’s determination there were no practical maintenance options, and the more costly repairs (caisson walls) would unreasonably burden the Association’s membership, who would be forced to pay for the cost of the walls in substantially increased dues and/or drastically reduced services. There is no evidence of willful misconduct on the part of any board member, nor is there any evidence the decision was made in bad faith or without regard for the best interests of the community.

The judicial deference doctrine protects a homeowner’s association’s “good faith decisions to maintain and repair common areas.” ( Affan, supra, 189 Cal.App.4th at p. 942.) That is what we have here. The Association was faced with two choices: adopt a prohibitively expensive course of action or make repairs directly to the rear common wall on an as needed basis. After carefully weighing the alternatives and giving primacy to the best interests of the Association and its members, the Association’s board chose the latter action. We must defer to the board’s authority and presumed expertise. ( Lamden, supra, 21 Cal.4th at pp. 253-255.)

*7 Having applied Lamden’s judicial deference rule, the trial court properly granted summary judgment in favor of the Association.


The judgment is affirmed. The Association is awarded costs on appeal.

We concur:


1.         Scott A. Thoeny, a geotechnical engineer, concurred with the conclusions in Mr. Hinkle’s reports, stating that “any options to repair/stabilize the slope, to the extent that they would have a reasonable probability of substantially reducing the damage at plaintiffs’ properties, are economically infeasible given the 40+ properties affected and well beyond the scope of regular maintenance.” Mr. Thoeny opined that the construction of caisson walls would cost approximately “$100,000 per home”; a more viable option would be for plaintiffs to modify “their backyard improvements to account for slope movement.”

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