STARLIGHT RIDGE SOUTH HOMEOWNERS ASSN. v. HUNTER-BLOOR
(2009) 177 Cal.App.4th 440
COUNSEL
Fiore, Racobs & Powers, Peter E. Racobs for Plaintiff and Appellant.
Stephanie K. Hunter-Bloor, in pro. per.; Law Office of John Scott Carter and John Scott Carter for Defendant and Respondent.
[177 Cal.App.4th 442]
OPINION
MILLER, J.-
Plaintiff and appellant Starlight Ridge Homeowners Association (the
Association) is the owners' association of a common interest
development. Defendant and respondent Stephanie K. Hunter-Bloor (the
homeowner) is the owner of a residential lot in the development. The
Association claimed that the homeowner was responsible for upkeep and
maintenance of a portion of a drainage channel (the V-ditch) crossing
her lot. The homeowner contended that, instead, the Association was
responsible for the costs of maintaining the section of the V-ditch
crossing her property, because at that location the V-ditch section was
wholly contained within a landscape maintenance area, and the
Association was charged with the duty of maintaining the landscape
maintenance area. The Association filed an action against the homeowner
for injunctive and declaratory relief. Each party filed a motion for
summary judgment. The trial court, interpreting the covenants,
conditions and restrictions (CC&Rs), granted the homeowner's summary
judgment motion and entered judgment in favor of the homeowner. The
Association has appealed, contending that the trial court erred in its
interpretation of the CC&Rs. We agree with the Association, and we
therefore reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
Starlight Ridge is a common interest development in Temecula,
California. Its declaration of CC&Rs was recorded in 1985. The
homeowner lives in a residence on a lot within the Starlight Ridge
development; the lot is subject to the CC&Rs. The homeowner acquired
title by an interspousal transfer deed in 2005.
The Association was created pursuant to the CC&Rs. The CC&Rs
designated certain "'Landscape Maintenance Areas,'" defined as "all
plantings, planted trees, shrubs, irrigation systems, walls, sidewalks
and other landscaping improvements described in Exhibit 'B' [giving a
metes and bounds description] which are to be maintained by the
Association . . . ." The described areas and the drawings depicting
their map location show the landscape maintenance areas bordering the
entrances into the development, [177 Cal.App.4th 443] and
wrapping around the frontage. One of these landscape maintenance areas
runs across the entire rear portion of the homeowner's lot, outside the
fence across her backyard.
Just outside the development ran an easement owned by the Metropolitan
Water District (MWD). Across a number of the lots backing up to the MWD
easement, and parallel to the easement, ran a V-ditch, a concrete
drainage channel. The V-ditch also ran across the back of the
homeowner's lot. The portion of the V-ditch running across the back of
the homeowner's lot was entirely within the landscape maintenance area
on her lot.
Section 6 of the CC&Rs dealt with the landscape maintenance areas.
Paragraph 6(a) provided that, upon the conveyance of the first
residential lot, the developer would grant an easement, and the
Association would obtain an encroachment permit for the landscape
maintenance areas. The Association would "thereupon assume and
thereafter perform all obligations of the [developer] for the
maintenance, repair and restoration of such Landscape Maintenance
Areas." The developer undertook, before the transfer, to complete the
installation of improvements, facilities, landscaping and planting in
substantial conformance with the landscaping plans. Paragraph 6(c)
provided that the owner of a lot that had a landscape maintenance area
as a part of the lot would have an exclusive easement for enjoyment,
except for the Association's easement for maintenance. The Association's
easement for maintenance was "a nonexclusive easement for ingress and
egress over the Lots within that Phase for the purposes of repair,
reconstruction, restoration, landscaping and maintaining the landscaping
of the Landscape Maintenance Areas . . . ." (¶ 6(d).)
Section 7 provided for allocation of maintenance and repair duties
between the owners and the Association. Paragraph 7(b) provided: "The
Association shall maintain the Landscape Maintenance Areas, including
all improvements, facilities, landscaping and planting thereon in good
condition and repair and in substantial conformance to the landscaping
plans . . . ." Paragraph 7(c) covered the owners' obligations to
maintain the exterior of the residences, "including, without limitation,
roofs, doors, windows, gutters, downspouts, exterior building surfaces,
walls, fences and gates, sidewalks, paving, trees, landscaping,
including slope area maintenance, planting, and all other exterior
improvements." Paragraph 7(e) provided that, "No Owner shall interfere
with or obstruct the established surface drainage pattern over any Lot,
unless an adequate alternative provision is made for the proper drainage
and is first approved in writing by the Architectural Control Committee
and the County Engineer of the County of Riverside. Any alteration of
the established drainage pattern must at all times comply with all
applicable local ordinances. For the purpose hereof, 'established'
drainage is defined as the [177 Cal.App.4th 444] drainage which
exists at the time the overall grading of a Lot is completed by [the
developer]. Each Owner shall maintain, repair, and replace and keep free
from debris or obstructions the drainage system and devices, if any,
located on his Lot."
The Association took the view that the V-ditch was a drainage system or
device on the homeowner's lot, for which the homeowner was responsible.
The V-ditch was in poor condition and had partially collapsed; the
Association sent the homeowner a notice to repair the V-ditch. The
homeowner refused, contending that, because the V-ditch on her lot was
wholly within the landscape maintenance area, the obligation for
maintenance and repair fell to the Association.
The Association filed this action for declaratory relief, seeking a
construction of the CC&Rs that the obligation to maintain the
V-ditch belonged to the homeowner, and for an injunction compelling her
to repair the V-ditch.
The Association moved for summary judgment. Its statement of undisputed
material facts indicated that the homeowner owned the lot in question,
that the CC&Rs, paragraph 7(e) assigned to each owner the duty to
"maintain, repair, and replace and keep free from debris or obstructions
the drainage system and devices, if any, located on his Lot," that the
concrete drainage V-ditch existed on the homeowner's lot, and that the
homeowner failed to repair, maintain or replace the damaged V-ditch.
The homeowner opposed the Association's motion for summary judgment, and
filed her own motion for summary judgment in response. In her statement
of undisputed facts, she declared that she owned the property in
question, the V-ditch was on the property, the portion of the V-ditch on
her property was wholly within the landscape maintenance area, the
property was subject to the CC&Rs, and the CC&Rs assigned
maintenance responsibility to the Association for the landscape
maintenance area, including any "improvements" or "structures" located
there.
The homeowner also included several statements to the effect that the
Association had maintained the landscape areas so poorly that the
Association's actions had undermined the V-ditch and caused its
collapse.
Each motion for summary judgment was premised exclusively as a matter of
interpretation of the CC&Rs. The trial court granted the
homeowner's motion for summary judgment and denied the Association's
motion: "I believe that within the landscaped maintenance area, that
reasonably it is considered that a v-ditch, which is part of, in this
Court's opinion, landscaping, it's commonly seen on slopes, it's
commonly seen in hilly areas, to the [177 Cal.App.4th 445] same
extent that the plaintiff has bushes, you have sprinklers. You don't
mention sprinklers here, you refer to 'irrigation' and so forth. But
this CC&R doesn't refer to valves, it doesn't refer to sprinklers,
it doesn't refer to bits and parts and pieces of an irrigation system by
specific language here. [¶] And what you're indicating to me is that
within the terms described within the CC&Rs as to landscaped
maintenance areas, that the Court should go to the interpretation or the
description of what drainage means as to the lot as a whole, whereas
clearly it says here, in the Court's opinion, that the landscaped
maintenance area is the responsibility of the [Association], and the
Court's interpretation is that that is inclusive of the v-ditch."
A final judgment was filed in favor of the homeowner, and the Association appeals.
DISCUSSION
A. Standard of Review
After a motion for summary judgment has been granted, an appellate court
"examine[s] the record de novo and independently determine[s] whether
[the] decision is correct. [Citation.]" (Colarossi v. Coty U.S. Inc. (2002) 97 Cal.App.4th 1142,
1149.) In doing so, we use the same three-step process employed by the
trial court. First, we identify the issues raised by the pleadings.
Second, we determine whether the moving party's showing establishes
facts sufficient to negate the opposing party's claims, and to justify
judgment in the moving party's favor. If so, third, we determine whether
the opposing party has raised a triable material issue of fact. (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 392.)
B. Step One--Issues Tendered by the Pleadings
The complaint contains two causes of action, for injunctive and
declaratory relief. Both causes of action seek a construction of the
CC&Rs; the Association contends that the CC&Rs assign financial
responsibility for upkeep and repair of the V-ditch to the homeowner, as
the property owner on whose property the facility, or a part thereof,
exists. The homeowner's opposition to the Association's motion for
summary judgment, as well as her own motion for summary judgment, also
relied exclusively on the proper legal construction of the CC&Rs.
The issue is one of interpretation of a written instrument. It presents a
question of law which we review de novo. (Wolf v. Walt Disney Pictures and Television (2008) 162 Cal.App.4th 1107, 1125.) [177 Cal.App.4th 446]
C. Step Two--The Association's Showing Was Sufficient to Justify Judgment in Its Favor
The facts are essentially undisputed. The V-ditch is a facility for
storm water runoff drainage. It runs across numerous lots, including the
homeowner's lot. It just so happens that, on the homeowner's lot, the
portion of the V-ditch that crosses the homeowner's property also lies
within the bounds of the designated landscape maintenance area.
The various obligations and duties of the owners within the development
and the Association are described in and governed by the CC&Rs. The
Association's moving papers pointed to paragraph 7(e) of the CC&Rs,
which provides in part: "Each Owner shall maintain, repair, and replace
and keep free from debris or obstructions the drainage system and
devices, if any, located on his Lot."
Although paragraph 1(j) defined the landscape maintenance areas as "all
plantings, planted trees, shrubs, irrigation systems, walls, sidewalks
and other landscaping improvements . . . which are to be maintained by
the Association," and paragraph 7(b) provided that the Association was
responsible for maintaining the common areas and landscape maintenance
areas, the Association argued that the drainage maintenance provision
was the more specific provision, which controlled over the provision
that, generally, the Association was to maintain the landscape
maintenance areas.
This construction of the document, pursuant to the Association's motion
for summary judgment, is at least facially reasonable and legally
tenable. If correct, it is sufficient to justify a judgment in the
Association's favor.
D. The Homeowner Has Failed to Raise a Triable Issue of Fact, or Otherwise Show That the Association Is Not Entitled to Judgment
In opposition, as in her own motion, the homeowner did not dispute any
essential facts, but rather argued for a different interpretation of the
CC&Rs. The homeowner objects that the Association has focused on
one sentence of paragraph 7(e), without taking account of the entire
provision. Paragraph 7(e) states in full: "No Owner shall interfere with
or obstruct the established surface drainage pattern over any Lot,
unless an adequate alternative provision is made for the proper drainage
and is first approved in writing by the Architectural Control Committee
and the County Engineer of the County of Riverside. Any alteration of
the established drainage pattern must at all times comply with all
applicable local governmental ordinances. For the purpose hereof,
'established' drainage is defined as the drainage which exists at the
time the overall grading of the Lot is completed by [the developer]. [177 Cal.App.4th 447]
Each Owner shall maintain, repair, and replace and keep free from
debris or obstructions the drainage system and devices, if any, located
on his Lot. Water from any Lot may drain into adjacent streets, but
shall not drain onto adjacent Lots unless an easement for such purposes
is granted herein or in the recorded subdivision map for the Project.
[The developer] hereby reserves for itself and its successive owners,
over all areas of the Project, easements for drainage from slope areas
and drainage ways constructed by [the developer]."
The homeowner contends that this provision for the maintenance of
existing drainage patterns, set by grading of the lots, is a general
provision, and that paragraph 7(b), assigning responsibility for
maintaining the landscape maintenance areas to the Association, is the
more specific provision. Thus, she argues, paragraph 7(b) is controlling
over paragraph 7(e), and the Association is responsible for the
expenses of maintaining the drainage facility V-ditch wherever it is
contained within the landscape maintenance area.
[1] The salient issue is: which interpretation is controlling? The
principles governing construction of written instruments are well
settled. "The mutual intention of the contracting parties at the time
the contract was formed governs. [Citations.] We ascertain that
intention solely from the written contract, if possible, but also
consider the circumstances under which the contract was made and the
matter to which it relates. [Citations.] We consider the contract as a
whole and construe the language in context, rather than interpret a
provision in isolation. [Citation.] We interpret words in a contract in
accordance with their ordinary and popular sense, unless the words are
used in a technical sense or a special meaning is given to them by
usage. [Citation.] If contractual language is clear and explicit and
does not involve an absurdity, the plain meaning governs. [Citation.]" (Westrec Marina Management, Inc. v. Arrowood Indem. Co. (2008) 163 Cal.App.4th 1387, 1392.)
[2] Here, each party contends that its interpretation is consistent with
the plain meaning of the words in the CC&Rs. Neither interpretation
works an obvious absurdity. The interpretations are inconsistent,
however. Where two provisions appear to cover the same matter, and are
inconsistent, the more specific provision controls over the general
provision. (Code Civ. Proc., § 1859.) Each party points to different
provisions as being the more general or the more specific: according to
one view, the Association's duty to maintain the landscaping areas is
general, whereas the owners' obligations to maintain drainage devices on
their lots is specific; according to the other view, the owners have a
general obligation to maintain drainage patterns on their lots, while
the Association's duty to maintain the landscape areas is specific. [177 Cal.App.4th 448]
To reconcile the conflict, we take account of and attempt to give effect
to the likely intentions of the creators at the time the instrument was
written, as well as the circumstances under which it was made and the
subject matters that it treats. We may also properly take account of the
acts and conduct of the parties after the contract is executed, as
effectively a practical construction of the instrument by those directly
affected. (Jones v. P.S. Development Co. (2008) 166 Cal.App.4th 707, 720.)
Here, the Association proffered some evidence in support of its motion
of the actions of the Association and other property owners with respect
to the owners' obligations to maintain and repair the V-ditch or other
drainage facilities. The CC&Rs had been in force for approximately
20 years. Throughout that time, precisely in accordance with its
interpretation of paragraph 7(e), the Association had enforced the
obligations of individual owners to maintain and repair drainage devices
existing on their lots at the owners' expense. The homeowner produced
no evidence to contradict the Association's showing on this point. The
only difference between the homeowner's situation here, and the
situations of the other property owners, is that the drainage device on
the homeowner's property happens to also be contained within the area
described as a landscape maintenance area. But it is generally true
that, historically, the individual property owners and not the
Association have been responsible for repairs to drainage devices like
the V-ditch.
The circumstances surrounding the creation of the CC&Rs also
indicate the relative importance of the subject matter of the competing
duties. The landscape maintenance areas are confined to small areas
bordering the entrances of the development. Their purpose is aesthetic.
The owners' duties with respect to drainage affect the fundamental
integrity of each lot and the development as a whole.
In her brief on appeal, the homeowner makes an argument that the
property owners collectively have an easement over the entirety of the
V-ditch. The developer created an easement for the V-ditch drainage; the
developer wanted to convey the easement for the V-ditch to the County
of Riverside, but the County did not accept the easement. The homeowner
contends that the developer then conveyed the easement to the property
owners (presumably collectively). That is, the CC&Rs declare that
the development "shall be held, sold and conveyed subject to the
following Declaration [i.e., the CC&Rs] as to division, easements,
rights, liens, charges, covenants, servitudes, restrictions,
limitations, conditions and uses to which the Project may be put, hereby
specifying that such [CC&Rs] shall operate for the mutual benefit
of all Owners of the Project and shall constitute covenants to run with
the land and shall be binding on and for the benefit of [the developer],
its [177 Cal.App.4th 449] successors and assigns, the Starlight
Ridge South Homeowners Association, its successors and assigns, and all
subsequent Owners of all or any part of the Project, . . . for the
benefit of the Project, and shall, further, be imposed upon all of the
Project as a servitude in favor of each and every lot within the Project
as the dominant tenement." From this language, the homeowner derives
the notion that all the property owners collectively own the
dominant tenement to which the V-ditch is subject, and that the
responsibility to maintain the V-ditch therefore is a collective one
imposed pro rata on all the property owners. She argues: "[i]t is well
settled that the servient estate has no duty to maintain or repair the
easement. 'The grantee, or owner of the easement, is bound to keep it in
repair, and this applies as well to water ditches as to private ways.' (Bean v. Stoneman
(1894) 104 Cal. 49, 55-56.) [¶] As the dominant tenement, then the
[property owners] have the exclusive responsibility to maintain the
easement."
The CC&Rs provisions on which the homeowner relies establish that the CC&Rs--not
merely the drainage easement--apply to all the lots within the
development "as a servitude for the benefit of each and every lot within
the development, as the dominant tenement." The CC&Rs themselves,
however, expressly specify that the responsibility to maintain the
drainage facilities lies with any lot owner upon whose lot the facility
exists.
The homeowner's argument concerning the dominant and servient tenements
proves too much, in two different ways. First, there is nothing to show
the conveyance of the easement for the V-ditch to the Association or any
other collective entity. The failure to transfer the V-ditch easement
to the County of Riverside has resulted, as the homeowner contends, in
conveyance of the easement to the property owners, i.e., the property
owners who bought the lots on which the V-ditch resides. Thus, the
owners of lots on which the V-ditch exists own both the dominant and the
servient tenement; the obligation of maintenance and repair falls to
the individual owners to whom those lots were conveyed. This theory
accords with the assignment, within the CC&Rs, of the obligation of
maintenance and repair of the V-ditch to the individual homeowner on
whose lot the facility exists.
Second, the natural consequence of the homeowner's contention would be
that the property owners collectively, as represented by the
Association, would own the easement (dominant tenement), and thus the
costs of maintenance and repair of the V-ditch would be shared equally
by all the property owners, through pro rata assessments. Indeed, the
homeowner makes this argument. But that argument would apply equally to
the entire V-ditch easement, and not only to portions of the V-ditch
lying within the bounds of the landscape maintenance areas. Yet the
conflict arises here solely because of the coincidence, on the
homeowner's lot, of the V-ditch corresponding to the [177 Cal.App.4th 450]
same area assigned as a landscape maintenance area. In practice, for
the past 20 years, the Association has never collected general
assessments for repairs of the V-ditch, whether within a landscape
maintenance area or otherwise. The only way that the homeowner here is
able to argue that the Association should be responsible, is her
contention that the landscape maintenance area provisions are the more
specific, which control over the otherwise applicable drainage
provisions.
The CC&Rs also contain provisions assigning responsibility to
individual lot owners for the maintenance of other kinds of facilities
within the development. That is, certain areas of the land within the
development were designated as "private property native open space," and
consisted of open areas of native vegetation. The developer was
required, under paragraph 7(d), initially to irrigate and maintain "the
planted trees on the slopes of the Private Property Native Open Space
for a minimum of twenty-four (24) months . . . from the date the tree
planting program is completed . . . . Upon expiration of the 24 month
period, [the developer] . . . shall have the right to terminate the
irrigation and maintenance of the planted trees and harden off the
planted trees and leave them to grow in a natural unirrigated state. . .
. [The developer] shall offer the continued responsibility of
irrigation and maintenance to the Association. Should the Association
accept such responsibility any further obligation and duty to irrigate
and maintain the planted trees shall belong to the Association . . . .
"In any event, the Owner has the obligation to maintain the native
vegetation within the Private Property Native Open Space situated within
the Owner's Lot, in its original state to prevent soil erosion
problems. This obligation does not preclude the mowing of certain areas
of the Private Property Native Open Space by the Owner to maintain
proper fire protection . . . . In any case, surface vegetation must be
maintained by the Owner. Should an area become denuded, it is the
Owner's responsibility to replant said area with native grasses and
provide supplemental irrigation until the erosion protection
characteristics are re-established. In the event Owner does not
accomplish said work in a responsible time and manner, the Association
shall have the right to perform said work at Owners expense."
The developer accepted responsibility only to establish the trees in the
native open space; otherwise, maintenance of all other plants in the
native open space areas was assigned by the CC&Rs to the individual
owners upon whose lots the open space was situated. The maintenance of
the native open space areas was not an expense shared pro rata among all the property owners, and was not a matter subject to pro rata assessments.
The similar assignment of responsibility for maintenance of the native
open space to the individual owners upon whose property the native open
space is [177 Cal.App.4th 451] situated, supports the
Association's construction of the CC&Rs with respect to
responsibility to maintain drainage facilities. The Association's
interpretation and its historical practice accords with the individual
property owner's responsibility to repair and maintain both drainage and
native open space areas, if any, located on a particular lot.
The homeowner points to certain other provisions of the CC&Rs which
she contends mandate the Association to maintain the V-ditch within any
landscape maintenance area. Paragraph 1(j) defines a landscape
maintenance area as "all plantings, planted trees, shrubs, irrigations
systems, walls, sidewalks and other landscaping improvements . . . ."
Paragraph 1(i) defines "Improvements" as "all structures and
appurtenances thereto of every kind, including, but not limited to,
residential structures, driveways, walkways, fences, walls, retaining
walls, poles, signs, trees and other landscaping." In these provisions,
the homeowner discerns a broad obligation on the Association to maintain
every conceivable kind of "structure," including the V-ditch, that lies
within the landscape maintenance area.
While we place no great reliance on the Association's argument that the
word "Improvements" in the definitional paragraph is capitalized,
whereas the definition of the landscape maintenance areas does not
capitalize the word with respect to "landscape improvements," we do
consider the modifier to limit the Association's obligations to landscape
improvements. The V-ditch is a storm water drainage channel. The trial
court's remarks indicated that it considered the V-ditch as possibly a
part of the irrigation system sustaining the landscape maintenance area,
but the purpose of the V-ditch is altogether different from the
aesthetic purpose of the landscape maintenance area. Indeed, the V-ditch
extends far beyond the landscape maintenance area. On virtually all
lots on which the V-ditch exists, the individual lot owner is
responsible for the expense of maintaining the V-ditch. The homeowner
here is seeking a relative windfall of having all the property
owners, through general assessments, pay to maintain the V-ditch
facility on her lot, solely because of the fortuity that at that
location the V-ditch happens to be located within the bounds also
designated for the landscape maintenance area.
The homeowner objects that another provision of the CC&Rs prevents
her from entering to repair the V-ditch, "even if she wanted to."
Paragraph 11(g) provides, "Except as otherwise provided in the
[CC&Rs], there shall be no obstruction of the Landscape Maintenance
Areas, and nothing shall be altered, constructed, planted in, or removed
from the Landscape Maintenance Areas without the prior written consent
of the Association." Here, the CC&Rs do "otherwise provide." First,
they provide that any owner on whose lot a landscape maintenance area is
located may have exclusive enjoyment of the landscape maintenance area,
subject to the [177 Cal.App.4th 452] Association's easement. The
CC&Rs also provide otherwise by expressly assigning responsibility
for maintenance of drainage facilities to the individual lot owners. In
addition, even if the Association's written consent were required, the
Association's written demand of the homeowner that she repair the
V-ditch would suffice to constitute such consent.
The homeowner complains that the Association, by its conduct in failing
to properly maintain the landscape maintenance area, contributed to or
caused the damage to the V-ditch on her property. The question of
whether another party may be responsible for causing the damage to the
partially collapsed V-ditch may involve factual questions, but those
factual issues pertain to a cause of action which has not been pled
here. A cause of action by the homeowner for indemnity or contribution,
or for negligence, is wholly separate from the issues tendered by the
pleadings here, which pertain only to the general assignment by the
CC&Rs of the duty of maintenance in the first instance. The
homeowner here has not filed a cross-action to recoup her costs from the
Association or any other assertedly negligent party. Thus, the
homeowner's complaints that the Association may have caused the
V-ditch's deteriorated condition do not present any material factual
questions which are actually at issue.
[3] The plain language of the CC&Rs could support either of the
proffered interpretations. The circumstances of the creation of the
CC&Rs indicate that the maintenance of drainage is of fundamental
importance, while the maintenance of the landscape maintenance areas is
primarily an aesthetic concern. The V-ditch is a relatively large
structure, and the function of drainage maintains the integrity of the
land. The landscape maintenance areas are relatively small in area. The
conduct of the parties to the agreement for the past 20 years indicates
behavior consistent with assigning responsibility for maintenance of the
V-ditch to the individual property owners. The evidence on this point
is undisputed. The bulk of the V-ditch has always been maintained at the
expense of other individual property owners whose lots the V-ditch
crosses; the homeowner here seeks to avoid that result, and to have all
the property owners within the entire development bear the expense for
the portion of the V-ditch on her lot, solely because the V-ditch there
happens to also coincide with the landscape maintenance area. Under the
circumstances of creation, and in practice, the CC&Rs assign general
responsibility for landscape maintenance areas to the Association, but
specifically provide that individual property owners will be responsible
for drainage facilities, if any, on their property. This interpretation
is also supported by parallel provisions concerning individual property
owners' responsibility to maintain native open space on their lots. The
homeowner here has failed to raise a triable issue of material fact on
any issue tendered by the complaint. The sole factual matter she
raises--who might be responsible for causing the damage to the
V-ditch--do not pertain to the causes of action pled. [177 Cal.App.4th 453]
We conclude, therefore, that the trial court erred in denying the
Association's motion for summary judgment, and in granting summary
judgment in favor of the homeowner.
DISPOSITION
For the reasons stated, the judgment in favor of the homeowner is
reversed. The trial court is instructed to enter a new order, granting
the Association's motion for summary judgment. The Association is to
recover its costs on appeal.
Richli, Acting P. J., and King, J., concurred.