LA JOLLA MESA VISTA IMPROVEMENT ASSN. v. LA JOLLA MESA VISTA HOMEOWNERS ASSN.
(1990) 220 Cal.App.3d 1187
John A. Meanley and Steven S. Kane for Plaintiff and Appellant.
Maurile C. Tremblay, David R. Endres, John T. Farmer, Edgar R. Nield and Tuverson & Hillyard for Defendants and Respondents.
BENKE, Acting P. J.
The residential development which is the subject of this dispute has
been governed by a declaration of conditions and restrictions
(CC&Rs) since 1957. By their terms the CC&Rs were scheduled to
expire on January 1, 1987, unless within the six months preceding
January 1, 1987, they were extended by a majority of the homeowners in
Between July 1, 1986, and January 1, 1987, a homeowners association
circulated a document which extended the effective date of the CC&Rs
to January 1, 2017. The extension also provided substantial
modifications of the existing CC&Rs. The extension proponents,
believing they had enough signatures to make the extension and
modification effective, recorded their extension on December 24, 1986.
Thereafter a second homeowners association was formed. It filed the
instant action which challenges the validity of the extension. The
challenge [220 Cal.App.3d 1191] is based primarily on alleged defects in a number of the signatures obtained in support of the petition.
Following a trial without a jury, the superior court found the extension
was supported by a sufficient number of valid signatures and entered
judgment in favor of the defendants.
We affirm in large measure because we find homeowners who assented in
writing to the extension did not have the power to unilaterally revoke
The subject of this dispute is La Jolla Mesa Vista Unit No. 1 (La Jolla
Mesa Vista) which consists of 94 residential lots located in La Jolla.
The original CC&Rs, recorded by the grantor on May 20, 1957,
provided in paragraph 22: "Each and All of the Foregoing Conditions and
Restrictions Shall Terminate on January First, Nineteen Hundred
Eighty-seven, unless the owners of a majority of said lots have executed
and recorded at any time within six months prior to January 1, 1987, in
the manner required for conveyance of real property, a writing in which
they agree that said Conditions and Restrictions shall continue for a
further specified period ...; provided, also that the above and
foregoing Conditions and Restrictions may be modified, after said
termination date, at the times and in the manner hereinabove provided
for the extensions of said Conditions and Restrictions; all of which
extensions and modifications shall become effective on the expiration
date of the Conditions and Restrictions in force at the time of such
extension or modification."
The La Jolla Mesa Vista Homeowners Association (Homeowners) was formed
by residents to implement the CC&Rs and to otherwise promote and
manage the common interests of the homeowners. In 1985 Homeowners
proposed extending the CC&Rs and conducted meetings in which the
comments of individual homeowners were solicited. Thereafter Homeowners
retained counsel, who drafted an extension and modification of the
existing CC&Rs. The extension would have modified the CC&Rs by
replacing the 1957 version with a new set of provisions.
Homeowners and its individual members circulated the extension during
the last half of 1986. When the extension was recorded on December 24, [220 Cal.App.3d 1192] 1986, signatures from the owners of 52 of the 94 lots had been obtained. fn. 2
However, before the extension was recorded, the owners of three of the
fifty-two lots signed rescissions of their consent to the extension
petition. Between December 24, 1986, and December 31, 1986, four more
rescissions were executed.
On January 30, 1987, the La Jolla Mesa Vista Improvement Association
(Improvement), an unincorporated association, filed a complaint against
Homeowners and four individuals, Jack Bauman, Brendan O'Sullivan, Louis
Besbeck and William Knowles. Improvement alleged it was composed of
individual owners of lots in La Jolla Mesa Vista. Improvement alleged
Homeowners' recorded extension was not enforceable against its members
because a majority of the development's owners had not consented to the
extension in the manner required by paragraph 22 of the original
CC&Rs. Improvement also alleged the modification set forth in the
petition was beyond the scope of change contemplated or permitted by
paragraph 22. Improvement alleged these facts gave rise to claims for
quiet title, declaratory relief, slander of title and cancellation of an
Trial without a jury commenced on March 28, 1988. Initially the
defendants argued Improvement lacked standing to contest the extension
because it did not itself own any lots in the development. The trial
court took the standing defense under submission and proceeded to hear
the merits. Thereafter Improvement presented evidence of defects in a
number of the signatures on the extension. Improvement presented no
evidence with respect to its allegation the modification set forth in
the petition was beyond the scope of change permitted by paragraph 22.
Following presentation of the evidence the trial court found no defects
in any of the disputed signatures and thus found the extension was
valid. The court also found Improvement had standing to brings its
Judgment was entered on August 15, 1988, and Improvement filed a timely notice of appeal. [220 Cal.App.3d 1193]
Issues on Appeal
Improvement again argues the extension is not supported by validly
executed signatures representing a majority of the development's
homeowners. fn. 3
I, II fn. ***
III The Extension and Modification Were Approved by a Majority of the Lot Owners
The parties agree approval from 48 lot owners was needed to make the
extension and modification effective. The parties further agree that at
the time the extension and modification were recorded, signatures
purporting to represent 52 lots were on the petition. On this appeal
Improvement challenges the signatures provided for 11 of the 52 lots. We
find that Improvement's challenges as to seven of the lots have no
merit; thus we find the needed majority and do not consider
Improvement's challenges to the signatures provided for the remaining
A. Signatures on the Petition Were Binding and Could Not Be Rescinded
As to six of the lots (Nos. 12, 22, 49, 58, 72, 86S), Improvement's
challenge is based solely on the fact that after signing the extension
the owners of those lots executed purported "rescissions" of their
agreement to the extension and modification. fn. 8 The trial court rejected this challenge because it found that by executing the extension the owners bound themselves under [220 Cal.App.3d 1194]
a contract which they could not unilaterally rescind without good
cause. (See Civ. Code, § 1689. The trial court further found Improvement
had not shown good cause for any of the rescissions.
Like the trial court we find the owner's signature on the petition was
sufficient to create a binding contract which could not be unilaterally
rescinded. The only case we have been able to locate which deals
directly with this issue is Russell v. Wallace (1929) 30 F.2d 981, 982
[58 App.D.C. 357] (Russell). In Russell the court enforced a racially
restrictive covenant which had been created by circulation of a written
instrument among property owners. The court rejected a property owner's
attempt to withdraw from the covenant before all the property owners had
assented to its terms. "The chief consideration for he contract was the
mutual promise and covenant of the signers, each with the other. Mutual
agreements of this kind, entered into for a valuable consideration, are
upheld on the theory that the subscribers are banding together for the
accomplishment of an object which is of common interest to all, and
which can only be obtained by their combined performance. The
consideration for each subscriber is the promise already made by others
who have signed or by those who will subscribe. The contract becomes,
therefore, of such a nature that a subscriber may only withdraw when an
unreasonable time has been consumed in procuring the signatures of all
the parties who are required to make up the agreement." (Ibid.)
Although Russell is no longer valid insofar as it holds racially
restrictive covenants are enforceable (see Shelley v. Kraemer (1948) 334
U.S. 1, 20 [92 L.Ed. 1161, 1184, 68 S.Ct. 836, 3 A.L.R. 2d 441]), we
believe its explanation of covenants established by mutual subscription
is still good law. Our conclusion is based on statutes and regulations
which govern "common interest developments" fn. 9 in California and holdings in analogous charitable subscription cases. [220 Cal.App.3d 1195]
Common interest developments are the subject of the Davis-Stirling
Common Interest Development Act. (Civ. Code, §§ 1350-1373.) They are
also subject to regulations promulgated by the Department of Real
Estate. (See Cal. Code Regs., tit. 10, § 2792 et seq.) Civil Code
section 1357, subdivision (a), provides: "The Legislature finds that
there are common interest developments that have been created with deed
restrictions which do not provide a means for the property owners to
extend the term of the declaration. The Legislature further finds that
covenants and restrictions, contained in the declaration, are an
appropriate method for protecting the common plan of developments and to
provide for a mechanism for financial support for the upkeep of common
area including, but not limited to, roofs, roads, heating systems, and
recreational facilities. If declarations terminate prematurely, common
interest developments may deteriorate and the housing supply of
affordable units could be impacted adversely.
"The Legislature further finds and declares that it is in the public
interest to provide a vehicle for extending the term of the declaration
if owners having more than 50 percent of the votes in the association
choose to do so."
In turn Civil Code section 1357, subdivision (b), provides in part: "A
declaration which specifies a termination date, but which contains no
provision for extension of the termination date, may be extended by the
approval of owners having more than 50 percent of the votes in the
association or any greater percentage specified in the declaration for
an amendment thereto."
The procedures by which members of common interest developments exercise
their rights, including the right to extend CC&Rs, are set forth,
in part, in section 2792.17 of title 10 of the California Code of
Regulations. Under section 2792.17, subdivision (f) of title 10 of the
Code of Regulations, CC&Rs should provide that "[a]ny action which
may be taken by the vote of members at a regular or special meeting ...
may be taken without a meeting if done in compliance with the provisions
of Section 7513 of the Corporations Code." Section 7513, subdivision
(a), of the Corporations Code in turn provides in part: "[A]ny action
which may be taken at any regular of special meeting of members may be
taken without a meeting if the corporation distributes a written ballot
to every member entitled to vote on the matter. Such ballot shall set
forth the proposed action, provide an opportunity to specify approval or
disapproval of any proposal, and provide a reasonable time within which
to return the ballot to the corporation." Significantly, Corporations
Code section 7513, subdivision (d), provides: "Unless otherwise provided
in the articles or bylaws, a written ballot may not be revoked."
(Italics added.) [220 Cal.App.3d 1196]
Although the record does not disclose the common ownership of realty
which would make the La Jolla Mesa Vista development a common interest
development and therefore directly subject to the foregoing statutory
and administrative provisions (see Civ. Code, § 1351), those provisions
nonetheless are helpful in interpreting the provisions which in fact
were employed by the association. Civil Code section 1351 is helpful in
that it is a legislative recognition of the practical importance of
efforts to renew CC&Rs. Here, without renewal of the CC&Rs,
owners in the La Jolla Mesa Vista development would be without the
protection which may be responsible in large part for establishing the
value of their residences.
The Department of Real Estate regulations governing the process by which
decisions are made by common interest developments are helpful in that
by incorporating the election scheme set forth in the Corporations Code,
the department has provided administrative recognition that efficient
procedures must exist by which collective decisions are reached. Of
particular importance here is the provision in Corporations Code section
7513, subdivision (d), for irrevocable ballots. Plainly, where the
provisions of Corporations Code section 7513, subdivision (d), apply,
individuals cannot unduly delay or frustrate decision-making by
repeatedly changing their minds. Thus the statute and the regulation
which has incorporated its provisions serve as recognition that
certainty, finality and promptness in decision making, which are
fostered by irrevocable balloting, are important interests shared by all
members of a common interest development or other collective endeavor.
 In our view the benefits to be derived from renewal of the CC&Rs
coupled with the benefits gained from a procedure which resolves the
renewal issue with certainty and finality are sufficient consideration
to support the irrevocability of the consents obtained by Homeowners.
This conclusion is consistent with a long line of charitable
subscription cases. "If 'a number of subscribers promise to contribute
money on the faith of the common engagement, or the accomplishment of an
object of interest to all, and which cannot be accomplished save by
their common performance, then it would seem that the mutual promises
constitute reciprocal obligations.'" Christian College v. Hendley (1864)
49 Cal. 347, 350; see also University of South. California v. Bryson
(1929) 103 Cal.App. 39, 49 [283 P. 949]; Board of Home Missions, etc. v.
Manley (1933) 129 Cal.App.2d 541, 544 [19 P.2d 21]; First Trust etc.
Bank v. Coe College (1935) 8 Cal.App.3d 195, 199 [47 P.2d 481].) Here,
renewal of the CC&Rs could not be accomplished without the mutual
consent of a majority of the homeowners; by analogy to the charitable
contribution cases, a person who has given his assent to the [220 Cal.App.3d 1197] extension is bound for a reasonable period of time by the assents previously obtained and by assents which are later obtained.
In sum then we reject Improvement's argument that homeowners were free
to rescind their consents to the extension. Where, as here, the written
procedures established for obtaining consent to extensions or
modifications to CC&Rs do not give an assenting member of a
development the right to unilaterally withdraw his or her consent, such a
right will not be implied.
 In addition, contrary to Improvement's argument, we have no trouble
finding the language used in the extension and modification was in fact
sufficient to express the parties' intention to be bound by its terms.
The extension provides: "The undersigned desire to extend and amend said
Declaration of Conditions and Restrictions, all as herein provided. [¶]
Now, Therefore, the undersigned hereby extend and amend said Declaration
of Conditions and Restrictions as follows." (Italics added.)
 We also have no difficulty upholding the trial court's finding no
good cause for rescission existed. Improvement presented no evidence of
fraud, mistake, undue influence, or any other grounds for rescission. fn. 10
B. The Signature of Daniel Rigoli was Sufficient to Bind Lot 80.
Lot 80 was held by the Minnie Rigoli Investment Trust. Under the
original trust instrument executed on March 1, 1984, Minnie Rigoli and
her son Daniel Rigoli were cotrustees. However, on July 24, 1986, only
Daniel Rigoli executed the extension and modification. Relying on
Probate Code section 15620 which provides that "[u]nless otherwise
provided in the trust instrument, a power vested in two or more trustees
may only be exercised by their unanimous action," Improvement argues
the absence of Minnie Rigoli's signature invalidates the consent
executed for Lot 80.
 Improvement's reliance on Probate Code section 15620 is misplaced.
As Improvement notes, the trust instrument provides that "All rights
granted to any person by any provision of this Trust may be exercised by
such person at any time during his or her lifetime and competency,
unless otherwise specifically provided herein." (Italics added.) However
the trust further provides that "Upon the death, resignation or
inability of Minnie B. Rigoli to serve as Co-Trustee of this Trust, then
Daniel Rigoli shall serve as successor sole Trustee of this Trust and
any separate Trust created hereunder." Thus contrary to Improvement's
argument the [220 Cal.App.3d 1198] trust instrument did not
require proof of Minnie's incompetence in order to establish Daniel's
right to act as sole trustee. Rather by its terms the instrument only
required proof of her inability to serve as cotrustee.
The trial court found that Minnie was unable to serve as cotrustee and
that Daniel was serving as sole trustee at the time he signed the
extension. The trial court's finding was supported by the fact that on
December 6, 1984, Minnie Rigoli executed an amendment to the trust in
which she identifies herself only as the trustor and only Daniel is
identified as a trustee; the trial court's finding was also supported by
the fact that on October 28, 1986, Daniel was named Minnie's
conservator.  (See fn. 11.) Thus, like the trial court, we find that
in signing the extension Daniel had the power to bind Lot 80. fn. 11
Having found no valid rescissions and no defect in the consent provided
for Lot 80, we have reached the majority of 48 lots needed to uphold the
Froehlich J., and Nares, J., concurred.
Pursuant to California Rules of Court, rules 976.1 and 976(b), this
opinion is certified for publication with the exception of parts I and
Although each signature was not notarized, the persons who obtained the
signatures appeared before notaries and attested to the authenticity of
the signatures. (See Civ. Code, § 1195.)
In unpublished portions of the opinion we discuss Homeowners' objection
to Improvement's standing and Improvement's contention paragraph 22 of
the original CC&Rs did not permit their wholesale replacement.
FN *. See footnote, ante, page 1187.
As to a seventh lot, No. 19, Improvement's challenge is based both on
the existence of a rescission and the fact that although legal title to
the lot was held in the name of a trustee of a revocable trust, consent
to the extension was signed by the settlors and beneficiaries of the
FN 9. "'Common interest development' means any of the following: (1) A community apartment project.
"(2) A condominium project.
"(3) A planned development.
"(4) A stock cooperative." (Civ. Code, § 1351, subd. (c).)
"'Planned Development' means a development (other than a community
apartment project, a condominium project, or a stock cooperative) having
either or both of the following features: (1) The common area is owned
either by an association or in common by the owners of the separate
interests who possess appurtenant rights to the beneficial use enjoyment
of the common area.
"(2) A power exists in the association to enforce an obligation of an
owner of a separate interest with respect to the beneficial use and
enjoyment of the common area by means of an assessment, which may become
a lien upon the separately owned lot, parcel, or area in accordance
with Section 1367." (Civ. Code, § 1351, subd. (k).)
FN 10. Indeed we also note that five of the six rescissions were themselves later "withdrawn."
We also note Daniel Rigoli later became the sole trustee of his
mother's trust and on December 8, 1987, ratified and affirmed his prior
signature on behalf of the trust. Improvement argues that because the
ratification occurred after the time to extend the CC&Rs had passed,
the ratification was not effective. We disagree. In general, when an
act has been ratified, it is treated as if originally authorized. (See
Rakestraw v. Rodrigues (1972) 8 Cal.3d 67,
73 [104 Cal.Rptr. 57, 500 P.2d 1401]; Civ. Code, § 2307.) Contrary to
Improvement's argument, we believe application of this general rule to
voting on amendments to and extensions of CC&Rs is appropriate.
Indeed, given the need for efficient extension and modification
procedures, the pertinent policy considerations suggest when one owner
or controlling person has consented to changes in CC&Rs we should
presume his acts were authorized by other co-owners or controlling
persons until evidence to the contrary has been produced.