One Ford Road Homeowners Assn. v. Johnson CA4/3 ( 2020 )

Filed 12/17/20 One Ford Road Homeowners Assn. v. Johnson CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ONE FORD ROAD HOMEOWNERS
ASSOCIATION,
G057674
Plaintiff, Cross-defendant and
Respondent, (Super. Ct. No. 30‑2017‑00945540)
v. OPINION
STACIE JOHNSON et al.,
Defendants, Cross-complainants and
Appellants.
Appeal from a judgment of the Superior Court of Orange County, Richard
Y. Lee, Judge. Reversed and remanded with directions.
Law Office of Philip A. Levy and Philip A. Levy for Defendants,
Cross-complainants and Appellants.
Richardson  Ober  DeNichilo, Kelly G. Richardson and Daniel C. Heaton
for Plaintiff, Cross-defendant and Respondent.
* * *
INTRODUCTION
Stacie Johnson and Lloyd Rucker live in a home within One Ford Road, a
planned unit development in Newport Beach. They appeal from a judgment adjudging
them to be in violation of One Ford Road’s covenants, conditions, and restrictions (the
CC&R’s). The trial court, following a bench trial, found that Johnson and Rucker had
breached the CC&R’s by refusing to allow an onsite, post-completion inspection of
improvements made to their home, and that plaintiff One Ford Road Homeowners
Association (the Association) was entitled to keep a $5,000 construction deposit and a
$500 fine paid by Johnson.
This appeal requires us to interpret and apply several sections of the
CC&R’s relating to procedures governing improvements and additions made to a home
within One Ford Road. In particular, section 7.12(c)1 and section 7.12(e) are central to
this appeal and our decision. Section 7.12(c) states, in relevant part: “Within thirty (30)
days of receipt of the notice of completion from an Owner, the Architectural Committee,
or its duly authorized representative, shall have the right to enter into the subject
Residence, as provided above, to inspect such Improvement.” Section 7.12(e) states: “If
for any reason the Architectural Committee fails to notify the Owner of any
non-compliance within sixty (60) days after receipt of said notice of completion from the
Owner, the Improvement shall be deemed to be in accordance with said approved plans
and specifications.”
We conclude that the Association timely provided notice of noncompliance
pursuant to section 7.12(e), but the stated ground for noncompliance—that Johnson had
refused to allow the inspection under section 7.12(c)—was not supported by the evidence
and was therefore invalid. The trial court found that Johnson and Rucker had acted
reasonably when they initially declined access to their home for an inspection, and there
1 Section citations are to sections in the CC&R’s unless otherwise indicated.
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is no evidence they refused access thereafter. We also conclude that both Johnson and
Rucker are proper parties to this lawsuit. Based on these conclusions, we reverse the
judgment and remand with directions to enter judgment in favor of Johnson and Rucker.
FACTS
Johnson purchased a home at 11 Jupiter Hills Drive in Newport Beach
(11 Jupiter) in 2015. 11 Jupiter is within One Ford Road and is subject to the CC&R’s,
which were recorded in March 1998. Johnson and Rucker live together at 11 Jupiter.
In January 2016, the Association’s Architectural Committee approved
Johnson’s application to make improvements to 11 Jupiter. Johnson paid a $5,000
construction deposit to the Association. On October 10, 2016, she sent a written notice of
completion to the Association, which acknowledged receipt on October 11, 2016.
The Association hired a third party, Smith Architects, to conduct
inspections of completed improvements to determine whether they conform to approved
plans. Prior to engaging Smith Architects, the Association’s Architectural Committee
had conducted its own inspections of completed improvements.
Kristine Trenary of Smith Architects was assigned the task of inspecting
the improvements to 11 Jupiter. After receiving the file, Trenary called Johnson to
schedule a time to complete the inspection. Trenary left a couple of voicemail messages
but did not receive a return call. On October 26, 2016, Trenary was out in the field and
decided to try again to get in touch with Johnson. Johnson answered the telephone.
Trenary repeated what she had said in her voicemail messages and asked to schedule an
appointment for that day. Johnson agreed.
As Trenary was driving to 11 Jupiter, she received a call from Rucker. She
told him who she was and explained her purpose for inspecting the home. He said the
CC&R’s did not authorize her to go onto the property and cancelled the appointment.
Trenary described his tone of voice as “angry.”
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Later that day, Trenary sent an e-mail to Jeff Smith of Smith Architects to
inform him of her attempts to conduct the inspection of 11 Jupiter. She wrote: “They
have refused access to the home. Would not return calls at first. Then set appointment.
Then cancelled it. They are stating that the CC&R’s do not mention this procedure and
that they sent pictures in [and] that should satisfy what the association is looking for. He
is not very happy about this and asked repeatedly if we have done work in their
community before. I said yes, and he wanted names and addresses. I told him I could
not give him that as I don’t remember specifics. He asked why we do this instead of his
photos, explained the series we take and that it is [the] final step before HOA meeting
and completion letters and deposits returned. He just kept saying it was not in the
CC&R’s. I told him that we, again, only take photos and we were asked to do this. Can
not [sic] help in any other way but do what we were asked to do. Told him we would
return file to the office and once it got figured out we would be happy to reschedule if
need be.”
Also on October 26, Johnson sent Renee Barger, the Association’s property
manager, an e-mail stating: “I received a phone call from Smith Architects that they were
sub contracted to come out and take photos of my property at 11 Jupiter Hills. I told
them there was no need to[] since I had already sent photos as requested with the notice
of completion. Was there something wrong with my photos? I went through the design
guidelines again and nothing states that the board has authorization to sub out the work.
In addition, they were rude when I denied th[eir] visit and they stated I would not get my
deposit back. Please explain so I understand.”
Barger replied on November 1, 2016 by e-mail stating: “In regards to the
NOC (Notice of Completion form), the Association has hired a 3rd party Architect by the
name of Smith Architects to review all submittals including the confirmation of the
completion of the work which is outlined in the CC&R’s below. Unfortunately, photos
will not suffice and the architect will need access [to] your home to confirm the
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improvements were completed according to plan. Unfortunately, if the site inspection is
not done, then the Association will not be able to refund the architectural deposit on file.”
After October 26, 2016, Barger did not ask Smith Architects to contact
Johnson to reschedule an inspection. Barger testified she did not know whether anybody
from Smith Architects contacted Johnson after that date. Rucker testified that after
October 26, nobody contacted him about scheduling an inspection and that he was not
aware that Johnson had been contacted about an inspection
On November 14, 2016, Johnson sent Barger an e-mail stating: “Please
provide the last 5 homes that were inspected by Smith Architects or outside party hired
by the HOA within the last 12 months. I want to be treated fairly and have a right to
know if this is standard conduct . . . . In addition 30 days has passed so per the CC&R’s
my project is deemed approved since no objection [was] ever made regarding the photo
sen[t] to the board. Please mail the $5,000 deposit back in a timely manner.”
Barger responded on November 17 with an e-mail stating: “As Smith
Architects was recently hired by the HOA, your home was the 1st home which needed to
submit an NOC to the firm directly. Historically, the Association’s Architectural
Committee would inspect and confirm if the improvements were completed in
accordance with the Governing Documents. [¶] Although your plans were approved
within the 60[-]day deadline, your NOC (Notice of Completion) form needs to be
executed by the [Architectural Committee] before your architectural deposit is refunded
to you.”
A letter dated November 18, 2016 from Smith Architects to the
Architectural Committee stated: “11 Jupiter Hills—Stacie Johnson: Review of
On-Site Notice of Completion Application stamped Received 10-10-16. Several attempts
were made by Smith Architects to gain access for an on-site Notice of Completion visit.
The Homeowner is unwilling to provide access to allow the inspection. Management was
notified of the Homeowner’s refusal to allow access on 10-26-16. There appears to have
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been no resolution of the issue as of this date. Recommend denial of the Applicant’s
NOC and initiation of the Association’s procedures for compliance.”
The November 18 letter from Smith Architects was forwarded to Johnson
with a letter dated November 23, 2016 from the Association. The Association’s letter
stated: “Please review the enclosed regarding your recent Notice of Completion
submittal. [¶] Should you have a deposit on file, and your Notice of Completion has been
approved, your deposit will be returned to you within 45 days, subject to a review of your
file for damages to common area[s] and/or current fines and assessments due, if
applicable. If your Notice of Completion is denied, you must address the issues and
resubmit new photos within 30 days.”
In February 2017, the Association sent Johnson notice of a disciplinary
hearing for her failure to allow an inspection of 11 Jupiter. The hearing was conducted
and the Association imposed a $500 fine against Johnson. The Association withdrew
$500 from her account balance in payment of the fine. In August 2017, Johnson
conveyed 11 Jupiter to Rucker.
PROCEDURAL HISTORY
I. The Complaint and Cross-complaint
In September 2017, the Association filed a complaint against Johnson and
Rucker for breach of the CC&R’s and declaratory relief. The complaint alleged that
Johnson and Rucker were in violation of the CC&R’s for failing to allow the Association
or its authorized agent access to 11 Jupiter to conduct a post-completion inspection and
for failing to pay the $500 fine.
The complaint sought an injunction requiring Johnson and Rucker to allow
the Association or its authorized agent to enter 11 Jupiter to complete the inspection and
to require Johnson to pay the $500 fine. The complaint sought a declaration on these
subjects: (1) The $500 fine was in compliance with CC&R’s; (2) the Association’s
retention of the $5,000 construction deposit was in compliance with CC&R’s; (3) the
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Association’s request to enter the property to complete the post-completion inspection
was in compliance with CC&R’s; and (4) the Association’s denial of notice of
completion of the construction improvements to 11 Jupiter was proper under the CC&R’s
as a result of the refusal of Johnson and Rucker to allow access to the property for the
post-completion inspection.
Johnson and Rucker filed a cross-complaint for breach of the CC&R’s,
declaratory relief, and injunctive relief. The cross-complaint alleged the improvements to
11 Jupiter must be deemed to conform to the approved plans because the Association had
failed to give written notice of denial of the notice of completion within 60 days of
receiving it, and the Association had breached the CC&R’s by maintaining that the
improvements to 11 Jupiter had not been approved, refusing to return the $5,000
construction deposit, and imposing the $500 fine. The cross-complaint sought an
injunction requiring the Association to return the construction deposition.
II. Trial and Decision
After a bench trial on the complaint and the cross-complaint, the trial court
ruled in favor of the Association. In a minute order, the court recited the reasons for its
ruling and answered the questions presented by the parties’ joint list of controverted
issues.
The key to the trial court’s decision was an interpretation of section 7.12(c)
as requiring only that the Association invoke its right to inspect the property within 30
days of the notice of completion. The court concluded the Association was not required
to complete the inspection within 30 days lest an owner, by refusing access, be able to
frustrate the Association’s ability to determine compliance within 60 days, as required by
section 7.12(e).
The trial court found that the Association had invoked its right to inspect
the property within 30 days of receipt of the notice of completion. Although the court
found that Johnson and Rucker had not acted unreasonably regarding Smith Architects’
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attempts to inspect 11 Jupiter, the court found that Johnson and Rucker had breached the
CC&R’s by refusing to allow the inspection “since to date, the inspection has not
occurred.” The court found that the Association had provided Johnson and Rucker notice
of noncompliance within the 60-day time frame for providing such notice, the notice of
completion had not been deemed approved, “[t]he project is still pending,” and the
Association did not have to return the $5,000 construction deposit or the $500 fine. No
party requested a statement of decision.
A judgment in favor of the Association and against Johnson and Rucker
was entered. The judgment incorporated the court’s answers to questions presented by
the parties’ joint list of controverted issues.
DISCUSSION
I. Both Johnson and Rucker Are Proper Parties
Johnson and Rucker contend neither of them is a proper party to this
litigation. Johnson is not a proper party, they argue, because she conveyed 11 Jupiter to
Rucker in August 2017 and therefore is no longer bound by the CC&R’s. Rucker is not a
proper party, they argue, because he was not an owner of 11 Jupiter when the CC&R’s
were claimed to have been breached. This argument is dubious on its face, for it means
that a simple conveyance can leave nobody responsible for violations of the CC&R’s.
We conclude both Johnson and Rucker are proper parties.
Covenants, conditions, and restrictions appearing in a declaration of a
common interest development are enforceable equitable servitudes. They “bind all
owners of separate interests in the development” and “[u]nless the declaration states
otherwise, these servitudes may be enforced by any owner of a separate interest or by the
association, or by both.” (Civ. Code, § 6856, subd. (a).) Inclusion of covenants,
conditions, and restrictions in a recorded declaration of a common interest development
imparts sufficient notice to permit their enforcement as equitable servitudes. (Nahrstedt
v. Lakeside Village Condominium Assn. (1994) 8 Cal. 4th 361, 379.)
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“Under the law of equitable servitudes, courts may enforce a promise about
the use of land even though the person who made the promise has transferred the land to
another. [Citation.] The underlying idea is that a landowner’s promise to refrain from
particular conduct pertaining to land creates in the beneficiary of that promise ‘an
equitable interest in the land of the promisor.’” (Nahrstedt v. Lakeside Village
Condominium Assn., supra, 8 Cal.4th at p. 379.)
Thus, the beneficiary of the promise, here the Association, has an equitable
interest in the land of the promisor, 11 Jupiter, to enforce the promise, and that equitable
interest continued in existence after Johnson conveyed 11 Jupiter to Rucker. Just as
Rucker, upon conveyance to him of 11 Jupiter, had the right to enforce the CC&R’s, the
Association had the right to enforce the CC&R’s against him. Whether or not Rucker
engaged in the conduct constituting the violations of the CC&R’s is not the pertinent
issue for determining whether he is a proper party. When 11 Jupiter was conveyed to
Rucker, it had improvements which, according to the Association, were in violation of
the CC&R’s. The improvements continued, allegedly, to be in violation of the CC&R’s
after the conveyance to Rucker. The Association had the right to hold him responsible
because he owned the property on which those improvements had been constructed.
Johnson is also a proper party by virtue of the $500 fine and the
construction deposit. There was, and continues to be, a dispute between Johnson and the
Association over imposition of the $500 fine and retention of the $5,000 construction
deposit: Johnson claims she is entitled to get those back; the Association claims it is
entitled keep them. Johnson was therefore a proper party to the Association’s declaratory
relief causes of action, which sought declarations that the fine and construction deposit
were in compliance with the CC&R’s.
II. Principles of Interpretation and Standard of Review
Covenants, conditions, and restrictions are interpreted in accordance with
the rules of contract interpretation. (Eisen v. Tavangarian (2019) 36 Cal. App. 5th 626,
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635; Bear Creek Master Assn. v. Southern California Investors, Inc. (2018) 28
Cal. App. 5th 809, 818.) “The basic goal of contract interpretation is to give effect to the
parties’ mutual intent at the time of contracting. [Citations.] When a contract is reduced
to writing, the parties’ intention is determined from the writing alone, if possible.”
(Founding Members of the Newport Beach Country Club v. Newport Beach Country
Club, Inc. (2003) 109 Cal. App. 4th 944, 955 (Founding Members).) A court has a “duty
to interpret a declaration of covenants, conditions and restrictions in a way that is both
reasonable and carries out the intended purpose of the contract.” (Dieckmeyer v.
Redevelopment Agency of Huntington Beach (2005) 127 Cal. App. 4th 248, 259.)
The words of a contract are given their ordinary and popular meaning, and
the circumstances under which the contract was made are considered. (Founding
Members, supra, 109 Cal.App.4th at p. 955; Lloyd’s Underwriters v. Craig & Rush, Inc.
(1994) 26 Cal. App. 4th 1194, 1197-1198.) “To the extent practicable, the meaning of a
contract must be derived from reading the whole of the contract, with individual
provisions interpreted together, in order to give effect to all provisions and to avoid
rendering some meaningless.” (Zalkind v. Ceradyne, Inc. (2011) 194 Cal. App. 4th 1010,
1027.)
We independently review the trial court’s interpretation of the CC&R’s
because no extrinsic evidence of their meaning was presented at trial. (Bear Creek,
supra, 28 Cal.App.5th at p. 819; see Founding Members, supra, 109 Cal.App.4th at
p. 955.)
III. Relevant Provisions of the CC&R’s
Article VII of the CC&R’s, entitled “Architectural Committee and
Architectural Control,” sets forth the rules and procedures governing improvements and
additions to a home that is within One Ford Road. A homeowner must obtain the prior
written approval of the Architectural Committee before commencing any structural,
architectural, landscaping, or hardscaping improvement or any additions to the
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homeowner’s property. (§§ 7.1, 7.2.) Johnson complied with this requirement and
obtained prior approval from the Architectural Committee of her plans.
Section 7.12(a) grants the Architectural Committee or “its duly authorized
representative” the right to enter a residence during the course of construction in order to
“inspect[] such construction and/or installation.” Section 7.12(a) also states: “The
Architectural Committee may not enter into a Residence without obtaining the prior
permission of the owner or occupant of such Residence; provided, however, that such
prior permission shall not be unreasonably withheld by an Owner and shall be given for
entry by the Architectural Committee during the daylight hours within forty-eight (48)
hours of the request for entry.”
Section 7.12(b) requires the homeowner, upon completion of the
construction, to present a written notice of completion to the Architectural Committee.
Johnson complied with this requirement.
Section 7.12(c) authorizes the Architectural Committee or its authorized
representative to enter the residence to inspect the completed improvement and determine
whether it complies with the approved plans. Section 7.12(c) states: “Within thirty (30)
days of receipt of the notice of completion from an Owner, the Architectural Committee,
or its duly authorized representative, shall have the right to enter into the subject
Residence, as provided above, to inspect such Improvement to determine whether it was
constructed, reconstructed, altered or refinished to substantial compliance with the
approved plans and specifications.”
Once the inspection is completed, the Architectural Committee must notify
the homeowner of any noncompliance within 15 days of the actual inspection: “If the
Architectural Committee finds that such construction, reconstruction, alteration or
refinishing was not done in substantial compliance with the approved plans and
specifications, it shall notify the Owner in writing of such non-compliance within fifteen
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(15) days of actual inspection of the Residence, specifying particulars of non-compliance,
and shall require the Owner to remedy such non-compliance.” (§ 7.12(c).)
The homeowner has 30 days from the date of notification of noncompliance
to remedy such noncompliance. (§ 7.12(d).) “If, upon the expiration of thirty (30) days
from the date of notification of non-compliance, the Owner shall have failed to remedy
such non-compliance, the Architectural Committee shall notify the Owner in writing of
such failure.” (Ibid.)
Section 7.12(e) states: “If for any reason the Architectural Committee fails
to notify the Owner of any non-compliance within sixty (60) days after receipt of said
notice of completion from the Owner, the Improvement shall be deemed to be in
accordance with said approved plans and specifications.”
IV. The Association Gave Timely
Notice of Noncompliance
The trial court found that the November 23, 2016 letter from the
Association, which forwarded the November 18 letter from Smith Architects, constituted
a notice of noncompliance that was sent within the 60-day period of section 7.12(e).
Johnson and Rucker argue the November 23 letter did not constitute a notice of
noncompliance because it did not express a decision by the Architectural Committee.
Instead, they argue, the November 23 letter identified two possible outcomes: (1) If the
notice of completion is approved, then the construction deposit will be returned or (2) if
the notice of completion is not approved, then the homeowner must address the issues of
noncompliance.
The more reasonable construction of the November 23 letter is that it was a
notice of noncompliance pursuant to section 7.12(e). Although the November 23 letter
did not expressly approve or deny the notice of completion, the Association did not yet
have to make that decision: Under section 7.12(e), the Architectural Committee need
only notify the homeowner of any noncompliance within 60 days of receipt of the notice
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of completion. The November 23 letter encloses and refers to the November 18 letter
from Smith Architects, which concluded that Johnson was in noncompliance by having
refused access to 11 Jupiter for the inspection.2 Given the nature and number of
communications back and forth between Johnson or Rucker and representatives of the
Association, there could be no reasonable doubt about what the Association was
claiming. The November 23 letter imparted adequate notice that the Association was
asserting noncompliance based on failure to allow access for the inspection as stated in
the letter from Smith Architects.
V. The Notice of Noncompliance Was Based on
an Invalid Ground
Although the November 23 letter was a timely notice of noncompliance, we
conclude the letter did not identify a valid ground because the evidence did not support a
finding that Johnson and Rucker refused access to 11 Jupiter for the inspection.
Johnson and Rucker argue they cannot be held in noncompliance because
an inspection of 11 Jupiter was not conducted within 30 days of October 11, 2016, the
date on which the Association received the notice of completion. They contend section
7.12(c) grants the Architectural Committee the right to go into the residence for only 30
days after receipt of the notice of completion: Once the 30-day period is over, the
Architectural Committee has no right to enter the residence. The Association contends,
and the trial court found, that section 7.12(c) means that within the 30-day period, the
Architectural Committee need only give notice of its intent to go into the residence to
2 Johnson and Rucker argue the term “any non-compliance” in section 7.12(e) can mean
only noncompliance with approved plans for improvements and does not refer to
noncompliance in permitting access to the residence for inspection. We decline to read
“any non-compliance” so narrowly. If a homeowner unreasonably withholds access to
the residence or otherwise fails to act in good faith in allowing an inspection, then the
Association should be able to cite that as noncompliance requiring correction before the
notice of completion is approved.
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inspect the improvements: the actual inspection need not be conducted within the 30-day
period.
The relevant language of section 7.12(c) is: “Within thirty (30) days of
receipt of the notice of completion from an Owner, the Architectural Committee, or its
duly authorized representative, shall have the right to enter into the subject Residence, as
provided above, to inspect such Improvement.” (Italics added.) This language is
unambiguous: It gives the Association or its representative the right to enter into the
residence to conduct the inspection for a period of 30 days following receipt of the notice
of completion. Once the 30-day period ends, the Association no longer has the right to
enter the residence. The 30-day time period is tied directly to the right to enter into the
residence, not a right to invoke the right to enter the residence. Indeed, section 7.12(c)
says nothing about invoking the right to enter the residence to conduct an inspection. If
the drafters of the CC&R’s had intended for section 7.12(c) to place a 30-day limit only
on the Architectural Committee’s ability to invoke its right to inspect the property, they
could and would have said so.
The Association argues, and the trial court concluded, that if the inspection
must occur within 30 days of receipt of the notice of completion, then the homeowner
would be able to frustrate the Association’s efforts to determine compliance within the
60-day period of section 7.12(e) by refusing to allow access for the inspection. But
Johnson and Rucker are subject, as are all homeowners in One Ford Road, to both an
express covenant and an implied covenant of good faith and fair dealing imposing an
obligation on them to act reasonably and cooperate with the inspection. Section 7.12(c)
states the Architectural Committee has the right to enter the residence “as provided
above” to inspect the improvements. Above section 7.12(c) is section 7.12(a), which
provides that the owner or occupant of the residence may not “unreasonably” withhold
permission for the Architectural Committee to enter into a Residence to inspect ongoing
construction. The owner or occupant of a residence therefore cannot unreasonably
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withhold permission for the Architectural Committee or its authorized representative to
enter a residence for an inspection of completed improvements.
In addition, implied in section 7.12 is a covenant that the homeowner will
not do anything to injure the right of the Association or its authorized representative to
enter the residence to conduct the inspection under section 7.12(c). Declarations of
covenants, conditions, and restrictions operate as a contract between the homeowners
association and the homeowner. (Treo @ Kettner Homeowners Assn. v. Superior Court
(2008) 166 Cal. App. 4th 1055, 1066.) Every contract has an implied covenant of good
faith and fair dealing providing that “‘neither party will do anything which will injure the
right of the other to receive the benefits of the agreement.’” (Kransco v. American
Empire Surplus Lines Ins. Co. (2000) 23 Cal. 4th 390, 400.)
Unreasonable refusal or lack of cooperation by the homeowner in
permitting an inspection would place the homeowner in breach of express and implied
provisions of the CC&R’s. Given the short time frames of section 7.12, such a breach
likely would be deemed material and excuse the Association from further performance.
(De Burgh v. De Burgh (1952) 39 Cal. 2d 858, 863; Butler America, LLC v. Aviation
Assurance Co., LLC (2020) 55 Cal. App. 5th 136, 142.)
Johnson and Rucker had an obligation, therefore, to act reasonably and
cooperate with the Association in allowing the Architectural Committee or its
representative to enter 11 Jupiter to inspect the completed improvements. On that
subject, the trial court made a crucial finding. One of the issues presented in the parties’
joint statement of controverted issues was “[w]hether Defendants acted unreasonably
regarding Smith Architect’s attempt to inspect Defendants’ property.” The court
answered “No”—meaning Johnson and Rucker acted reasonably.
The court also made an oral finding that Johnson and Rucker acted
reasonably in requiring confirmation that Smith Architects was the Association’s duly
authorized representative before allowing Smith Architects to conduct the inspection.
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That confirmation did not arrive until November 1, 2016. On October 26, Johnson sent
Barger an e-mail asking for an explanation as to why she had been contacted by Smith
Architects. Barger testified that Johnson was reasonable in doing so because, in the past,
the Architectural Committee had conducted the inspections, and this was the first time
Smith Architects had conducted an inspection for One Ford Road. By e-mail dated
November 1, 2016, Barger provided Johnson confirmation that Smith Architects had
been hired by the Association to conduct post-completion inspections and was the
Association’s duly authorized representative.
The trial court thus in effect found that Johnson and Rucker had acted
reasonably through November 1, 2016, the date on which they received confirmation that
Smith Architects was the Association’s duly authorized representative. The Association
had through November 10, 2016 (30 days after October 11) to enter 11 Jupiter to conduct
the inspection.
There is no evidence in the record to show that from November 1 through
November 10 Johnson or Rucker ever denied access to 11 Jupiter. Nobody from Smith
Architects or the Association contacted Johnson or Rucker within that time frame to
schedule an inspection. Trenary testified that on October 26 she returned the file to
Smith Architects with an e-mail stating she had been denied access to 11 Jupiter. She
had no further interaction with Johnson or Rucker. Barger testified that after October 26,
2016, she did not contact Johnson to schedule an inspection, did not ask Smith Architects
to contact Johnson to reschedule an inspection, and did not know whether anybody from
Smith Architects had contacted Johnson. Smith testified that when he received the file
for 11 Jupiter back from Trenary, he sent the file to Barger with a note suggesting she
contact the homeowner—which Barger did not do. Smith did not contact Johnson but
waited to hear back from Barger. Rucker testified that after October 26, nobody
contacted him about scheduling an inspection, and he was not aware that Johnson had
ever been contacted.
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The Association deemed Johnson to be in noncompliance on the ground she
was “unwilling to provide access to allow the inspection” and she had “refus[ed] to allow
access on 10-26-16.” But from October 11 through November 1 she and Rucker were
found to have acted reasonably and after October 26 they were never contacted about
scheduling an inspection. Johnson and Rucker could not have refused access to 11
Jupiter if nobody from the Association or Smith Architects ever requested access.
The Association argues that Johnson had the burden to contact Smith
Architects to schedule the inspection. We disagree for three reasons. First, section
7.12(a) states that the Association’s Architectural Committee may not enter into a
residence “without obtaining the prior permission of the owner or occupant.” In order to
obtain permission, the Association or its authorized representative must first ask for it.
The initial appointment made by Trenary was not a standing request for entry to 11
Jupiter but a request to make an appointment for a specific date and time. Rucker and
Johnson cancelled that appointment, and the trial court found that they had acted
reasonably in doing so.
Second, under section 7.12(c), the adverse consequence (loss of right to
enter the residence) for failing to inspect within 30 days falls on the Association, not the
homeowner; it therefore behooves the Association to contact the homeowner to schedule
the inspection. In other words, the burden falls on the Association to contact the
homeowner to schedule the inspection because the Association will lose a valuable right
if the inspection is not conducted within the 30-day time frame.
Finally, Johnson was faulted for being unwilling or refusing to provide
access. She cannot be held to be unwilling to provide access merely because she did not
contact the Association or Smith Architects to schedule an inspection. Johnson’s
unwillingness to provide access was, according to the November 18 letter from Smith
Architects, based on her “refusal” to allow access on October 26, and not at any other
time. But, as we have emphasized, the trial court found that Johnson and Rucker had
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acted reasonably in refusing access on that date. That single “refusal” to allow access
was the only basis for the notice of noncompliance.
A homeowners association suing a homeowner to enforce its CC&R’s bears
the burden of demonstrating that “it followed its own standards and procedures” and that
“its procedures were fair and reasonable, its substantive decision was made in good faith
and was reasonable, and its action was not arbitrary or capricious.” (Friars Village
Homeowners Assn. v. Hansing (2013) 220 Cal. App. 4th 405, 413.) The Association’s
notice of noncompliance was not reasonable because, as we have explained in detail,
Johnson and Rucker did not “refuse” access to 11 Jupiter for inspection within the
meaning of the CC&R’s. Under section 7.12(e), the improvements to 11 Jupiter must be
deemed to be in conformance with the approved plans and specifications because within
60 days of receipt of the notice of completion the Association failed to notify Johnson of
noncompliance based on a valid ground. For the same reasons, the disciplinary action
against Johnson was invalid, and the Association must refund the construction deposit.
DISPOSITION
The judgment is reversed and the matter is remanded with directions to
enter judgment in favor of Appellants. Appellants to recover costs on appeal.
FYBEL, J.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.
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