THAT v. ALDERS MAINTENANCE CORPORATION
(2012) 206 Cal.App.4th 1419
Dinh Ton That, in pro. per., for Plaintiff and Appellant.
Law Offices of Nicholas T. Basakis and Nicholas T. Basakis for Defendant and Respondent.
Plaintiff Dinh Ton That disagreed with the results of a recall election
conducted by his homeowners association. He first brought a small claims
action, then a writ of mandate, and then the instant action, asserting
violations of association rules and the relevant statutory scheme.
Defendant Alders Maintenance Association demurred to his complaint,
arguing the statute of limitations had run on his first cause of action.
The court sustained the demurrer. Plaintiff amended his complaint,
adding a second cause of action under Business and Professions Code
section 17200. Defendant again demurred, arguing a number of reasons why
such a claim could not be maintained. The court sustained the second
demurrer without leave to amend. The court also awarded defendant
attorney fees of approximately $15,000. Plaintiff argues this should be
reversed because the relevant statute does not specify that prevailing
associations are entitled to attorney fees.
In the unpublished portion of this decision, we agree with defendant
that the one-year statute of limitations bars plaintiff's first cause of
action. In the published portion, we agree with defendant that in the
present context, a homeowners association is not a "business" within the
meaning of Business and Professions Code section 17200. We agree with
plaintiff, however, that the relevant statute does not permit the
association to recover attorney fees, despite our agreement with the
trial court's conclusion that the action was frivolous.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff is a homeowner in The Alders, a 248-unit condominium complex
in Irvine. The Alders is maintained and governed by defendant. In early
2009, a number of homeowners, including plaintiff, fn. 1
attempted a recall of the sitting Board of Directors. The recall
election took place on February 9. It did not, however, achieve a
quorum, which required 50 percent of the membership
to be present in person or by proxy. While 124 members were required for
a quorum, 119 members were present at the meeting. A motion was made by
director Joseph Brockett to close the meeting, and the motion was
seconded and approved. According to defendant, prior to the meeting's
closure, no motion was made to adjourn the meeting to a later time. One
member did raise the question of an adjournment after the meeting was
closed, but the closure of the meeting prevented further official
business. The closure of the meeting without adjournment fn. 2 essentially concluded the recall effort.
On February 26, plaintiff filed a small claims action seeking $500 as a
civil penalty. He alleged defendant and certain individuals "wrongfully .
. . required a quorum" and failed to give the members present an
opportunity to adjourn the meeting. Plaintiff also sought injunctive
relief that would require defendant to bring the 119 proxies and ballots
to the court hearing and require counting by an independent third
party. On March 6, the small claims court filed an order stating that it
had determined "Small Claims court does not have jurisdiction to
monitor elections." Plaintiff filed a dismissal without prejudice on
On March 9, plaintiff filed a verified "Emergency Petition for
Peremptory Writ of Mandate in the First Instance as well as for an
Alternative Writ" in superior court. He sought a court order directing
defendant to conduct the recall election at an adjourned meeting with a
smaller quorum. On March 20, the court denied the petition as well as
plaintiff's request for reconsideration.
Plaintiff appealed on May 19, 2009. (That v. Alders Maintenance Association
(G042070, app. dism. Oct. 1, 2009).) That case was briefed, but while
the matter was pending, defendant conducted its regular annual election
on July 29. Defendant filed a motion to dismiss the
appeal, which we granted on October 1, 2009 on the grounds that it was
moot. The remittitur was issued on December 1.
Once back in the trial court, plaintiff sought leave to amend his
complaint to state a cause of action for "Declaratory, Injunctive Relief
and Civil Penalties per [Civil Code] § 1363.09." In addition to
declaratory and injunctive relief (the precise nature of which is
unclear), plaintiff sought $2,000 in civil penalties for violating the
Civil Code relating to association election laws.
The motion for leave to amend was initially set for hearing on February
1, 2010. On December 21, 2009, at a case management conference, the
hearing was continued to March 1, 2010 at the request of defendant's
counsel on grounds of medical necessity. At that hearing, plaintiff
acknowledged that his claim was governed by a one-year statute of
On March 1, the court denied the motion for leave to amend, finding that
a writ petition was not a pleading which was subject to amendment under
Code of Civil Procedure, section 473, subdivision (a)(1). Further,
plaintiff had not met the necessary procedural requirements.
Plaintiff then filed the instant action on March 5, 2010, nearly 13
months after the February 9, 2009 recall election. On April 28, he filed
a first amended complaint (FAC) which purported to allege "Violation of
Article 2 of Chapter 4 of Title 6 of Part 4 of Division 2 of the Civil
Code, Including Section 1363.03(b), for Declaratory and Injunctive
Reliefs [sic] and Civil Penalties Under Civil Code Section
1369.09." The FAC sought adjudication of the same issues raised in the
writ petition, specifically whether defendant and its agents had acted
properly during the attempted recall election on February 9, 2009.
Plaintiff sought the court's decision on a number of "issues to be
decided and permanent injunctions requested." Plaintiff requested civil
penalties under Civil Code section 1363.09, subdivision (b), alleging
four violations and $2,000 in penalties. He also
requested the court's decisions be "published" to all members of the
Defendant filed a demurrer, arguing the FAC failed to state a claim upon
which relief could be granted. Defendant argued that the FAC was
time-barred by Civil Code section 1363.09, subdivision (a), which states
that a cause of action for violating laws relating to association
elections must be brought "within one year of the date the cause of
action accrues." Plaintiff opposed, arguing judicial and equitable
estoppel among other reasons why the demurrer should be overruled. The
court sustained the demurrer, but granted plaintiff leave to amend to
state another cause of action.
Plaintiff then filed his second amended complaint, which purported to
state causes of action for "Violation of Article 2 of Chapter 4 of Title
6 of Part 4 of Division 2 of the Civil Code, Including Section
1363.03(b), for Declaratory and Injunctive Reliefs [sic] and
Civil Penalties Under Civil Code Section 1369.09, for Violation of
[Business and Professions Code] Sections 17200 et seq., for Declaratory
and Injunctive Reliefs [sic] and Restitution Thereunder." The
first cause of action was essentially identical to the FAC. The second
cause of action alleged defendant violated the Unfair Competition Law
(UCL), Business and Professions Code section 17200, et seq.
Defendant demurred to the second cause of action, arguing the facts in
this case, specifically, the conduct of an association recall election,
did not state a cause of action under the UCL as a matter of law.
Defendant also moved to strike the first cause of action, arguing it was
identical to the FAC, which had been the subject of a successful
demurrer, as well as parts of the prayer for relief. Plaintiff opposed,
offering a number of arguments on both the demurrer and motion to
strike. The trial court granted the motion to strike and sustained the
demurrer without further leave to amend, noting plaintiff had not met
the actual injury requirement for claims under the UCL.
On January 10, 2011, the trial court granted defendant's motion for
attorney fees and awarded $15,020.50 pursuant to section 1363.09,
subdivision (b). The court found some of plaintiff's actions, including
filing a complaint barred by the statute of limitations, "frivolous."
Plaintiff filed his appeal on February 9, 2011, and also sought writ
relief, which we denied in case G044799.
Plaintiff seeks review of the trial court's decisions to sustain the
demurrers to the FAC and SAC, and to grant attorney fees to defendant. fn. 3
A. Standard of Review for Demurrers
"In reviewing the sufficiency of a complaint against a general demurrer,
we are guided by long-settled rules. '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.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We review the trial court's decision de novo. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.)
While a general demurrer admits all facts that are properly pleaded, the
"'court does not, however, assume the truth of contentions, deductions
or conclusions of law. [Citation.]'" (Soliz v. Williams (1999) 74 Cal.App.4th 577, 584.)
B. Relevant Statutory Law
The Davis-Stirling Common Interest Development Act (the Davis-Stirling
Act) (Civ. Code, § 1350 et seq.) governs homeowner associations. The
Davis-Stirling Act "consolidated the statutory law governing
condominiums and other common interest developments. . . . Common
interest developments are required to be managed by a homeowners
association (§ 1363, subd. (a)), defined as 'a nonprofit corporation or
unincorporated association created for the purpose of managing a common
interest development' (§ 1351, subd. (a)), which homeowners are
generally mandated to join [citation]." (Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 81, fn. omitted.)
Civil Code section 1363.03 et seq. governs association election
procedures. Civil Code section 1363.09 creates a right of action for
violation of those procedures: "A member of an association may bring a
civil action for declaratory or equitable relief for a violation of this
article by an association of which he or she is a member, including,
but not limited to, injunctive relief, restitution, or a combination
thereof, within one year of the date the cause of action accrues. . . ."
(Civ. Code, § 1363.09, subd. (a).) The same section permits a court to
void an election if it concludes that election procedures were not
Civil Code section 1363.09, subdivision (b) (hereafter subdivision (b))
states: "A member who prevails in a civil action to enforce his or her
rights pursuant to this article shall be entitled to reasonable
attorney's fees and court costs, and the court may impose a civil
penalty of up to five hundred dollars ($500) for each violation, except
that each identical violation shall be subject to only one penalty if
the violation affects each member of the association equally. A
prevailing association shall not recover any costs, unless the court
finds the action to be frivolous, unreasonable, or without foundation."
C. fn. * Statute of Limitations on Plaintiff's Civil Code section 1363.09 Claim
As plaintiff admitted in the trial court, the one-year statute of
limitations set forth in Civil Code section 1363.09, subdivision (a)
governs his claim regarding the election held on February 9, 2009
election. He offers several reasons why the statute of limitations
should not bar this cause of action from proceeding.
1. Accrual Date fn. 4
Plaintiff argues: "In the days after February 9, 2010 [sic],
(Alders member) Barbara Forgy, plaintiff-appellant and others asked
defendant-respondent Alders to correct acts or omissions of its agents
by appropriate remedial action within 45-day statutory limit of
Corp.C._§_7511(d) i.e. by March 26, 2009. Filing on March 9, 2009 of
petition for writ of mandate (and of Small-Claims Action on February 26,
2009) was to exercise plaintiff-appellant's rights and meet that March
26, 2009 deadline. Superior Court's denial of petition on March 20, 2009
or possibly defendant-respondent's filing of opposition to
writ-petition on March 18, 2009 is therefore the more appropriate
accrual date . . . . So March 5, 2010 is within one year of March 18 or
20, 2009 anyway, and instant action is timely. . . . Also, direct
attempts at getting correction count toward limitation per McDonald infra." (Some italics omitted.)
Other than his cross-reference to another, unspecified portion of his
brief, plaintiff offers no citation to authority supporting the novel
contention that an informal request to cure changes the date a cause of
action accrues. fn. 5 The appellant must "present argument and authority on each point made." (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576,
591; Cal. Rules of Court, rule 8.204(a)(1)(B)).) It is not the court's
responsibility to comb the appellate record for facts or to conduct
legal research in search of authority to support the contentions on
appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761,
768.) "When an appellant fails to raise a point, or asserts it but
fails to support it with reasoned argument and citations to authority,
we treat the point as waived. [Citation.]" (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836,
852, fn. omitted.) Plaintiff's status as a propria persona litigant
does not exempt him from following these basic principles of appellate
procedure. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) In any event, we conclude the cause of action accrued on the date of the recall election, February 9, 2009.
Plaintiff argues that either equitable or judicial estoppel should
operate to prevent the statute of limitations from being applied here.
Equitable estoppel requires that "'"(1) The party to be estopped must
know the facts; (2) he must intend that his conduct shall be acted upon,
or must so act that the party asserting the estoppel had the right to
believe that it was so intended; (3) the party asserting the estoppel
must be ignorant of the true state of facts; and, (4) he must rely upon
the conduct to his injury."' [Citation.]" (Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1268.)
The only fact plaintiff points to here is the one-month continuance on
the hearing of plaintiff's motion to file an amended pleading in the
writ proceeding. This delay, he claims, led to the filing of the instant
action after the statute of limitations had run. Plaintiff's claim that
this was a "dilatory tactic" is unsupported by the evidence, and in any
event, he was well aware of the statute of limitations issue. He was
not, therefore, "'"ignorant of the true state of
facts."'" (Spray, Gould & Bowers v. Associated Internat. Ins. Co., supra, 71 Cal.App.4th at p. 1268.)
Similarly, judicial estoppel does not apply. Plaintiff claims: "As
plaintiff specifically informed the court of the statute of limitation
and that, if the court granted continuance requested by defense counsel,
plaintiff would have to invoke relation-back
doctrine . . . the court is judicially estopped from barring or
rejecting or denying or in any way not giving effect to plaintiff's
invocation of this doctrine now, even if plaintiff were mistaken in the
validity of such invocation . . . ."
The doctrine of judicial estoppel, however, applies to litigants, not the court. Judicial estoppel prevents a party
from "'asserting a position in a legal proceeding that is contrary to a
position previously taken in the same or some earlier proceeding. The
doctrine serves a clear purpose: to protect the integrity of the
judicial process.' [Citation.]" (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) This argument, therefore, is without merit.
3. Relation Back
Plaintiff asserts, in a number of different ways that ultimately bring
us to the same place, that the date he filed the instant case relates
back to his filing of either the small claims action or the writ
petition. Therefore, he argues, because he filed the small claims action
and the writ petition in a timely manner, the instant case was also
timely filed, even though it was filed a month after the statute of
limitations had run on his claim. Plaintiff, however, is wrong. Because
the small claims action, writ petition and instant case were different,
separate cases, the doctrine of relation back does not apply.
The general rule is simple. "[A]n amended complaint relates back
to the filing of the original complaint, and thus avoids the bar of the
statute of limitations, so long as recovery is sought in both pleadings
on the same general set of facts." (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 934 (Smeltzley)
(italics added).) More recent cases are in accord.
"The relation-back doctrine requires that the amended complaint must (1)
rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality, as the original one. [Citations.]" (Norgart v. Upjohn Co., supra, 21 Cal.4th at pp. 408-409.)
This rule, however, applies only to amended complaints, not different
actions. None of the cases cited by plaintiff apply this rule to a
separately filed action, including one relating to the same subject
matter. In Smeltzley, the plaintiff's amended complaint, filed after the statute of limitations had run, added a new cause of action. (Smeltzley, supra, 18 Cal.3d at p. 934.) The court held this was permissible under the relation-back doctrine. (Ibid.)
In Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146,
the issue was whether the plaintiff's complaint, amended to name a Doe
defendant with a new cause of action arising from different facts, was
properly dismissed for failure to serve within three years. (Id.
at p. 149.) The California Supreme Court held that the time for service
of summons ran from the time of the filing of the amended complaint,
because it was based upon different operative facts. In other words, the
high court found that the service related back to the amended, not the
original, complaint. Barrington has no relevance here because it
does not involve the statutory deadline for service, but it, like the
other cases plaintiff cites, involves an amended complaint.
Plaintiff spends much time arguing that the "form of action" does not or
should not matter for purposes of relation back, claiming that the writ
petition and the instant action serve the same purposes. Regardless of
any merits to this point, it is legally irrelevant. The contemporary
relation-back rule applies only to amended complaints. The reason is
obvious. If a plaintiff could file an action with a one-year statute of
limitations in 2001, dismiss it, and file another action based on the
same facts in 2005, claiming the 2005 complaint related back to the 2001
complaint, it would be an exception that swallowed the rule of the
statute of limitations. Because this case does not involve an amended complaint, but a completely separate cause of
action, the doctrine of relation back does not apply.
4. Equitable Tolling
Plaintiff also argues that equitable tolling should apply. "Equitable
tolling is a judge-made doctrine 'which operates independently of the
literal wording of the Code of Civil Procedure' to suspend or extend a
statute of limitations as necessary to ensure fundamental practicality
and fairness. [Citations.]" (Lantzy v. Centex Homes (2003) 31 Cal.4th 363,
370.) Courts have "applied equitable tolling in carefully considered
situations to prevent the unjust technical forfeiture of causes of
action, where the defendant would suffer no prejudice." (Ibid.) For example, in Elkins v. Derby (1974) 12 Cal.3d 410,
the one-year statute of limitations on a personal injury action was
tolled while the plaintiff pursued a workers' compensation remedy. (Id. at pp. 414-420.) In Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399,
the doctrine was applied to toll a 15-month period to sue on a fire
insurance policy while a timely prior action, erroneously dismissed as
premature, was pending. (Id. at pp. 410-412.) In McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, equitable tolling applied while the plaintiff was exhausting administrative remedies. (Id.
at p. 101.) All of these cases are distinct from the factual situation
here, where plaintiff chose to file a writ proceeding, was completely
unsuccessful on the merits, and sought to refile the action as a civil
"'As with other general equitable principles, application of the
equitable tolling doctrine requires a balancing of the injustice to the
plaintiff occasioned by the bar of his claim against the effect upon the
important public interest or policy expressed by the . . . limitations
statute.' [Citation.]" (Lantzy v. Centex Homes, supra, 31
Cal.4th at p. 371.) In this case, we find plaintiff suffered no
injustice. He chose to pursue the writ action to its conclusion, even
though he was well aware of the one-year statute of
limitations. He could have chosen to file the instant action while the
writ proceeding was still pending. Further, applying equitable tolling
in this case would contravene a clear legislative intent to resolve
association election matters expeditiously.
We also reject plaintiff's request for this court to create some sort of
hybrid doctrine, combining selected parts of equitable tolling and
relation back. Such a doctrine would contravene clearly established law
under each of those separate principles.
In sum, we find the trial court did not err by sustaining the demurrer
on the first cause of action. The statute of limitations bars
plaintiff's claim as a matter of law, and the second amended complaint
therefore fails to state facts sufficient to state a cause of action. fn. 6 (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
D. Plaintiff's Business and Professions Code section 17200 Claim
Plaintiff's second cause of action, offered to circumvent the statute of
limitations on the first, is under the UCL. The UCL is codified in
Business and Professions Code section 17200 et seq. Section 17200
prohibits any "unlawful, unfair or fraudulent business act or practice." (Italics added.)
We cannot find, and plaintiff does not cite, a single published case fn. 7
in which a homeowners association has been treated as a "business"
under the UCL, and we are unpersuaded by plaintiff's
claims in favor of such a reading of the statute. Plaintiff argues that
associations are businesses, citing O'Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790. That case is readily distinguishable. In O'Connor,
the California Supreme Court held that an association was a "business
establishment" under the Unruh Civil Rights Act (Civ. Code, §51).
Treating associations as businesses in that context is consistent with
-- and indeed, necessary for -- fulfilling the fundamental purposes of
that statutory scheme, the protection of civil rights.
The UCL's purpose does not require the same broad construction of the
word "business." "The UCL's purpose is to protect both consumers and
competitors by promoting fair competition in commercial markets for
goods and services. [Citation.]" (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939,
949.) An association does not participate as a business in the
commercial market, much less compete in it. The dispute here is not
related to any activity that might be deemed in the least bit
commercial. Indeed, it is solely related to the conduct of association
elections, a subject covered thoroughly by the Davis-Stirling Act
itself. (Civ. Code, § 1363.03 et seq.)
We do not foreclose entirely the notion that the UCL could apply to an
association. If, for example, an association decided to sell products or
services that are strictly voluntary purchases for members or
nonmembers, it might be liable for such acts under the UCL. But applying
the UCL to an election dispute would simply make no sense. An
association, operating under its governing documents to maintain its
premises and conduct required proceedings, possesses none of the
relevant features the UCL was intended to address. Applying the UCL in
this context would both misconstrue the intent of that statute and
undermine the specific procedures set forth in the Davis-Stirling Act.
An action under the UCL "is not an all-purpose substitute for a tort or
contract action." (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.) We therefore find the court properly sustained defendant's demurrer to the second cause of action.
E. Attorney Fees fn. 8
Subdivision (b) states: "A member who prevails in a civil action to
enforce his or her rights pursuant to this article shall be entitled to
reasonable attorney's fees and court costs, and the court may impose a
civil penalty of up to five hundred dollars ($500) for each violation,
except that each identical violation shall be subject to only one
penalty if the violation affects each member of the association equally.
A prevailing association shall not recover any costs, unless the court
finds the action to be frivolous, unreasonable, or without foundation."
The trial court's order stated, in relevant part: "Plaintiff knew when
the action was filed that his claims under CC1363.09 were barred by the
statute of limitations. Such a bar is grounds for finding an action to
be frivolous. [Citations.]"
Plaintiff argues that the language of subdivision (b) does not
specifically state that associations are not entitled to attorney fees
because the language regarding prevailing associations mentions only
"costs" and not fees. Defendant argues that when authorized by statute,
reasonable attorney fees are allowable costs, and therefore, once the
association has established the action is frivolous, the attorney fees
provision becomes reciprocal.
"In ascertaining the meaning of a statute, we look to the intent of the
Legislature as expressed by the actual words of the statute. [Citation.]
We examine the language first, as it is the language of the statute
itself that has 'successfully braved the legislative gauntlet.'
[Citation.]" (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1117.) The "resort to legislative history is appropriate only where statutory language is ambiguous." fn. 9 (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 29.)
While we agree with the trial court's conclusion that plaintiff's decision to file this lawsuit was indeed frivolous, fn. 10
we must also agree with plaintiff that the plain language of the
statute does not support an award of attorney fees to defendant, as
unfair as that may seem. Statutory fn. 11 attorney fee awards must be specifically
authorized by a statute. (Code Civ. Proc., § 1021.) While defendant
argues that Code of Civil Procedure section 1033.5, subdivision (a)(10)
permits recovery of fees as an item of costs, such recovery is only
permitted when authorized by contract or statute, which brings us right
back around to the language of subdivision (b). Plaintiff points out
that if the legislature had intended the last
sentence of subdivision (b) to include attorney fees as well as costs,
it could and would have said so. Further, other provisions in the
Davis-Stirling Act clearly indicate an entitlement to attorney fees
where the legislature deemed them appropriate. (See, e.g., Civ. Code, §
1365.2, subds. (e)(3), (f).) We reluctantly agree.
Defendant's arguments on this point are simply unpersuasive. Defendant
asserts the use of the word "any" in the phrase "a prevailing
association shall not recover any costs" reflects the legislature's
intent to preclude either costs or attorney fees unless the action is
demonstrably frivolous. But "any" costs could refer to any of the cost
items listed in Code of Civil Procedure section 1033.5, subdivision (a).
Defendant also argues plaintiff's interpretation "completely ignores
the punitive nature of the provision, which is clearly intended to
punish a member who puts an association in the position of having to
expend money to defend a frivolously meritless lawsuit." But no such
punitive intent is evidenced by the language of the statute. Further,
defendant cites no authority in support of its position.
"'This court has no power to rewrite the statute so as to make it
conform to a presumed intention which is not expressed.' [Citations.]" (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627,
633.) We sympathize with defendant's position on this issue and agree
that the legislature should amend the statute to create an entitlement
to attorney fees for the association if an action is "frivolous,
unreasonable or without foundation." But we must rule on the statute
before us, and therefore we agree with plaintiff that subdivision (b)
does not authorize the court to award a prevailing association attorney
The trial court's decision sustaining the demurrers is affirmed. The
order awarding costs to defendant that include attorney fees is
reversed, and the matter is remanded to the trial court to enter a new
costs award. Each party shall bear its own costs on appeal.
Bedsworth, Acting P.J., and Aronson, J., concurred.
Pursuant to California Rules of Court, rule 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of Part II.C.
FN 1. According to the property manager, defendant had previously received a judgment against plaintiff for $177,904.69.
FN 2. Had the meeting been adjourned, it would have continued the recall election to a later date with a smaller quorum requirement.
Plaintiff's briefs purport to seek review of other issues as well, but
these are the only questions properly before this court, as dictated by
the relevant standard of review and substantive law.
FN *. See footnote, ante, page 1.
Plaintiff's arguments are set forth across many headings and
subheadings, nearly all of which include cross-references to other
arguments. While we have read and considered each of plaintiff's
arguments, in the interests of brevity and simplicity, we have grouped
related legal arguments together.
"The general rule for defining the accrual of a cause of action sets
the date as the time when the cause of action is complete with all of
its elements." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 389.)
After addressing the statute of limitations, plaintiff spends a
significant amount of his opening brief arguing the "necessity and
propriety of declaratory relief . . . and other reliefs for 1st cause of
action." Because the first cause of action is barred by the statute of
limitations, this substantive argument regarding the same cause of
action is irrelevant. The cause of action is barred by law.
Plaintiff cites a number of purported cases currently pending in the
superior court, or decided by the appellate division, which have done
so. Such cases have no binding or persuasive authority. The only
published case involving an association and the UCL our research located
was Turner v. Vista Pointe Ridge Homeowners Assn. (2009) 180 Cal.App.4th 676, but that case did not address the substance of the plaintiffs' UCL claim. (Id. at p. 688.)
Plaintiff requests that we direct "supplemental briefing" on this issue
because the word limit on appellate briefs requires him to present his
argument in "skeletal" format. The request is denied.
We previously granted defendant's unopposed request for judicial notice
of the legislative history of Civil Code section 1363.09. If we were to
consider the legislative history, we would find that it provides only
limited support for defendant's argument. The legislative history
includes a number of committee reports and readings, but most of these
documents merely state the bill would allow prevailing associations to
recover "litigation costs" if the action is frivolous. Only one
document, a partisan bill analysis, states that it would permit recovery
of attorney fees by associations. To constitute cognizable legislative
history, a document must shed light on the view of the legislature as a
whole. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc., supra, 133 Cal.App.4th at p. 30.)
Plaintiff argues that the mere fact that he filed this lawsuit after
the statute of limitations had run is not sufficient for a finding of
frivolousness. We do not agree with plaintiff that tardiness was the
only basis for the court's finding.
Defendant also argues it is entitled to attorney fees based on the
CC&Rs. It points to a provision which states: "In the event action
is instituted to enforce any of the provisions contained in this
Declaration, the party prevailing in such action shall be entitled to
recover from the other party thereto as part of the judgment, reasonable
attorney's fees and costs of such suit." The trial court rejected this
argument, pointing out that no evidence had been presented that the
quoted portion of the CC&Rs applied to this case. A copy of the
CC&Rs was not provided to the trial court, therefore there was no
way to evaluate whether it included any provisions relating to
elections, "or that this action implicated any of [the CC&Rs]
provisions." For the same reasons, we reject this argument. While the
CC&Rs might create an entitlement to attorney fees, defendant simply
failed to make the necessary evidentiary showing in the trial court.