Rio Vista Landscape Maintenace Assn. v. City of Oceanside CA4/1

Filed 3/30/15 Rio Vista Landscape Maintenace Assn. v. City of Oceanside CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RIO VISTA LANDSCAPE D065251
MAINTENANCE ASSOCIATION,
Plaintiff and Appellant,
(Super. Ct. No. 37-2012-00054678-
v. CU-PT-NC)
CITY OF OCEANSIDE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline
M. Stern, Judge. Affirmed.
Connolly Law Office and Christopher J. Connolly for Plaintiff and Appellant.
John Mullen, City Attorney, and Anne M. Perrigo, Deputy City Attorney, for
Defendants and Respondents.
For many years, a homeowners association (Rio Vista Landscape Maintenance
Association (Rio Vista Association)) performed landscape maintenance on a public street
median near the residential development. In July 2012, Rio Vista Association sued the
City of Oceanside (City) seeking a declaration that it does not owe (and has never owed)
the City a duty to maintain the public median, and seeking to invalidate an administrative
decision upholding a $200 citation for Rio Vista Association's failure to perform the
maintenance work.
The court granted summary judgment in the City's favor, finding the undisputed
facts establish Rio Vista Association was required to maintain the median based on a
condition imposed by the City when it approved the residential development in 1994.
The court awarded $39,690 in attorney fees to the City. (Civ. Code, § 1717.)
On appeal, Rio Vista Association contends the court erred in determining its
causes of action were unsupported as a matter of law. Rio Vista Association also
challenges the attorney fees award. We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
To determine whether the court properly granted summary judgment, we first
describe the applicable development documents and homeowner association rules that
reflect Rio Vista Association's powers and obligations. We next describe the
circumstances leading to Rio Vista Association's filing the complaint against the City.
We then summarize the allegations in Rio Vista Association's complaint, the summary
judgment proceedings, and the court's ruling.
A. Documents Pertaining to Douglas Drive Median-Maintenance Obligation
In September 1994, the Oceanside Planning Commission adopted a resolution
(Resolution 94-P25) approving a development proposal and tentative map and other
related documents for the construction of a 273-unit single-family residential subdivision
2
(Rio Vista) with certain conditions. The conditions included a requirement that the
developer (Developer) dedicate and improve Douglas Drive, a four-lane major arterial
road adjacent to the Rio Vista development. The Resolution also required the Developer
to build "[a] raised landscaped concrete median . . . on Douglas Drive as determined by
the City Engineer." Resolution 94-P25 additionally imposed two conditions requiring
that the homeowners association maintain the "median landscaping" and that the
Developer include this requirement in the development's CC&R's.
First, Condition No. 83 stated:
"The homeowners' Covenants, Conditions and Restrictions (C.C. &
R's) shall provide for the maintenance of all common open space,
medians and commonly owned fences and walls and adjacent
parkways. The maintenance shall include normal care and irrigation
of landscaping, repair and replacement of plant material and
irrigation systems as necessary; and general cleanup of the
landscaped and open area, parking lots and walkways. The C.C. &
R's shall be subject to the review and approval of the City Attorney
prior to the approval of the final map. The C.C. & R's are required
to be recorded prior to or concurrently with the final map. Any
amendments to the C.C. & R's in which the homeowner relinquishes
his responsibility for the maintenance of any common open space
shall not be permitted without the specific approval of the City
Council of the City of Oceanside. Such a clause shall be a part of
the C.C. & R's. The C.C. & R's shall also contain provisions for the
following:
(a) Provisions regulating individual patio covers, room additions
and other appurtenances.
(b) Maintenance of median landscaping by the Homeowners'
Association." (Italics added.)
Second, Condition No. 85 stated:
"All landscaping, fences, walls, etc. on the site, in medians, in public
right-of-way and in any adjoining public parkways shall be
3
permanently maintained by the homeowners association. The
maintenance program shall include normal care and irrigation of the
landscaping; repair and replacement of plant materials; irrigation
systems as necessary; and general cleanup of the landscaped and
open areas, parking areas and walkways, walls, fences, etc. This
condition shall be recorded with the covenant required by this
Resolution." (Italics added.)
Five years later, in January 1999, the Oceanside city council approved the Rio
Vista project, and confirmed that the Developer substantially satisfied all tentative map
requirements and conditions set forth in Resolution 94-P25. Shortly after, the landscape
plans for the Rio Vista development were signed by the Developer/Owner and the City
planning director. These plans include a statement that: "The Developer is required to
maintain all common landscaped areas (including medians and parkway on Douglas
Drive) for one (1) year or until City acceptance of landscape improvements, whereupon
the project HOA accepts maintenance responsibility." (Italics added.)
The next month, on February 17, 1999, a three-page Declaration of Covenants,
Conditions & Restrictions (CC&R I), signed by the Developer, was recorded. This
CC&R I document states that the Rio Vista development is "restricted by" the City's
development approval conditions, and specifically identified Resolution 94-P25 as one of
the documents containing those conditions.1
The CC&R I further states the "OWNER intends to restrict the PROPERTY in
accordance with the conditions of the Resolutions [defined to include Resolution 94-
1 Although the CC&R I document identifies Resolution 94-P25 as a controlling
planning document, it also contains two references to Resolution "97-P25." We agree
with the City that the references to Resolution 97-P25 appear to have been a clerical error
and were intended to refer to Resolution 94-P25.
4
P25], as required by the [City]" and that "This Declaration shall constitute covenants
running with the land and shall be binding on and for the benefit of OWNER, its
successors, assigns, and all subsequent owners of the PROPERTY, together with their
grantees, successors, . . . administrators, devisees, and assigns." (Italics added.) The
CC&R I document further gave the City a "right" to enforce the CC&R's and to recover
attorney fees incurred in any enforcement action. The final substantive sentence of the
CC&R I states: "This Declaration shall not be modified, removed or released without the
prior written consent of the City of Oceanside."
The same day that this CC&R I document was recorded, the approved Final Map
for the Rio Vista project was recorded. This Map included a statement that the
"C.C.&R's AS REQUIRED BY THE CITY OF OCEANSIDE PLANNING
COMMISSION RESOLUTION NO. 94-P25 APPROVING TENTATIVE MAP . . .
AND DEVELOPMENT PLAN HAVE BEEN RECORDED . . . ."
Two days later, on February 19, 1999, the Developer recorded a more
comprehensive declaration of Covenants, Conditions and Restrictions for Rio Vista
(CC&R II), reconfirming the binding nature of the City's development conditions and
containing the detailed rules governing the homeowners association. This document
provided Rio Vista Association with the power to impose assessments to promote the
management of the common areas or "in furtherance of any other duty or power of the
Association." (Italics added.) The CC&R II also defined "common expenses" to include
"the costs incurred in the discharge of any duties or powers of the Association" and gave
5
Rio Vista Association the authority to "enforce the provisions of the [CC&R II] . . . by
appropriate means and carry out the obligations of the Association hereunder."
The CC&R II also contains a separate section entitled "CITY REQUIREMENTS."
That section provided in part:
"Section 15.1 - No Limitations. Neither the Declaration, nor any contract
of sale, lease or other written document nor any other means or method
shall be established . . . which would operate, directly or indirectly, to
prevent or preclude any other Owners or any person, individual, or entity
from complying with all applicable provisions of the Tentative Map, the
Final Map and other City ordinances, rules, policies or regulations.
[¶] . . . [¶]
"Section 15.3 — Modification. None of the terms of the Declaration shall
be deleted or modified without the consent of the City Attorney. Further,
the City shall have the right but not the obligation to enforce any of the
above provisions and that in the event the City pursues legal action to
enforce any of its rights, the City shall be entitled to reasonable attorneys'
fees.
"Section 15.4 — Receipt of Homeowner Documents. Prior to the transfer
of ownership to each prospective and actual buyer, of any Lot or Lot(s),
Declarant and Owner(s) shall provide a written copy of the Declaration,
applications, staff report and resolutions for the Neighborhood to the new
Owner. This notification's provision shall run with the life of the
project . . . .
[¶] . . . [¶]
"Section 15.6 — Compliance. Neighborhood is restricted by Development
Plan . . . and Tentative Map . . . approved by the City of Oceanside
pursuant to Planning Commission Resolution No. 94-P25, hereinafter
collectively referred to as the 'Resolution'. This [section] is in accordance
with Government Code Section 66411.1 of the Subdivision Map Act and
the Resolution. Declarant intends to restrict the Neighborhood in
accordance with the conditions of the Resolutions, as required by the
Oceanside City Council, Community Development Commission and
Planning Commission.
6
"The entire list of conditions applicable to the Neighborhood may be
reviewed in Resolution No. 94-P25. Copies of [the] Resolution are on file
with the Planning Department of the City of Oceanside." (Italics added.)
B. Circumstances Leading to the Dispute
Since at least 2004 until mid-2011, Rio Vista Association acknowledged its duty
to maintain the landscaping on the Douglas Drive median and fully performed this work.
In 2004, Rio Vista Association entered into an agreement to share costs for the
median maintenance with a developer (Standard Pacific) that was building a nearby
residential development (Mission Wells) along Douglas Drive. In the agreement, both
parties reaffirmed their legal obligations to maintain the public median. In this regard,
Rio Vista Association stated:
"Pursuant to the conditions of approval for the Rio Vista Project, the
Rio Vista Association (as successor-in-interest to the developer of
the Rio Vista Project) is responsible for the maintenance of nine (9)
existing landscape medians located within the public right-of-way on
Douglas Drive. The landscaping in the existing medians is currently
served by irrigation facilities (Irrigation Facilities) connected to the
irrigation system serving the broader Rio Vista Project. . . ." (Italics
added.)
Standard Pacific also confirmed its responsibility for this maintenance and stated it
intended to build certain improvements to the median. The parties agreed that after these
improvements were completed, Standard Pacific would be responsible for 60.9 percent of
the median-maintenance costs and Rio Vista Association would be responsible for 39.1
percent of the costs.
After signing this cost-sharing agreement, Rio Vista Association (apparently with
Mission Wells's contributions) continued to maintain the Douglas Drive median for the
7
next seven years. However, in mid-June 2011, Rio Vista Association made a decision it
was not (and had never been) obligated to perform this maintenance and terminated this
work. The City responded that Rio Vista Association's decision violated "the specific
requirements attached to your development approvals" and gave the Association two
weeks to correct the problem.
Rio Vista Association's governing board (Board) then notified the City it did not
believe it was obligated to maintain the median because it was responsible for
maintaining only common areas of the development, and the City-owned Douglas Road
median was not part of the common area as defined in the CC&R's. The Board also
stated the City's conditions of approval contained in Resolution 94-P25 did not govern
Rio Vista Association, and instead was merely a contract between the City and the
Developer.
In February 2012, the City issued a $100 administrative citation to Rio Vista
Association, and served the citation on "Patricia J Koerv," who is the Association's
designated agent for service of process and its president and property manager. The
citation states Rio Vista Association violated Resolution 94-P25's median-maintenance
requirement and Oceanside City Code sections prohibiting public nuisances. (Oceanside
Mun. Code, § 17.3(d).)2
2 Oceanside Municipal Code section 17.3(d) states: "A public nuisance . . . .
includes: [¶] . . . [t]he placement, maintenance, or existence of junk, garbage, rubbish, or
nuisance vegetation in a manner which is offensive, unsightly, unsafe, unhealthy, a
harborage for rodents or other vermin, an attractive nuisance to children, or in any other
way detrimental to public health, safety, or welfare."
8
In March 2012, the City issued a second administrative citation imposing a $200
fine for the same alleged violations. This administrative citation was again served on
Patricia Koerv.
Rio Vista Association appealed the $200 citation, and in May 2012, an
administrative hearing was held on this challenge. The issue at the hearing was whether
Rio Vista Association's failure to maintain the Douglas Drive median violated Resolution
94-P25 and/or Oceanside Municipal Code section 17.3(d). In support of their respective
positions, the City and Rio Vista Association presented witness testimony and
documentary evidence. At the conclusion of the hearing, the administrative hearing
officer upheld the administrative citation.
C. Rio Vista Association's Complaint
One month later, Rio Vista Association filed a complaint against the City, seeking:
(1) declaratory relief that it has no continuing obligations regarding the Douglas Drive
median; and (2) "de novo review" of its objections to the May 2012 administrative
citation.3 In support of both forms of relief, Rio Vista Association alleged that the
Douglas Drive median is not part of its common area; Rio Vista Association does not
have a private contract or a recorded easement with the City requiring that it maintain
City property; and Rio Vista Association's governing documents do not authorize it to
maintain City property outside the development's common areas. Rio Vista Association
3 Under Government Code section 53069.4, a party may seek de novo review in the
superior court of an administrative fine imposed by a local agency. All further statutory
references are to the Government Code unless otherwise specified.
9
also alleged the City improperly served the administrative citations on Patricia Koerv
because she had no individual liability to the City for the claimed maintenance violations.
D. Summary Judgment Motion
The City moved for summary judgment, arguing the undisputed facts show Rio
Vista Association cannot prevail as a matter of law on its claims because: (1) the claims
were untimely under section 66499.37 as the claims reflect challenges to the legality and
validity of a 1994 restriction imposed under the City's Subdivision Map Act authority; (2)
Resolution 94-P25's requirement that Rio Vista Association maintain the Douglas Drive
median is a valid condition running with the land and is binding on Rio Vista
Association; and (3) the service of the citations on Patricia Koerv was proper.
In support, the City presented the various City and CC&R documents summarized
above. The City also presented the declaration of Amy Fousekis Wolfe, the City's
principal planner, who authenticated the City documents and stated that the raised median
on Douglas Drive was the only "median" improvement within the Rio Vista development
project. Wolfe also stated that Resolution 94-P25's imposition of a permanent
maintenance obligation "is typical for a project of this type as a means of offsetting long-
term city street maintenance costs, which are generally increased by new development
projects such as Rio Vista. The alternative would be the establishment of a new — or
annexation to an existing — City maintenance assessment district where the City would
perform the maintenance funded by assessments against the homeowners. In either case,
the homeowners within the project boundaries would be responsible for the costs of said
maintenance."
10
The City additionally presented the declaration of a code enforcement officer who
stated that in February and March 2012 she observed "a considerable amount of
accumulation of trash, debris, junk, weeds, etc. on the [Douglas Drive] medians" and
therefore served administrative citations on Patricia Koerv "as the property manager for"
Rio Vista Association.
E. Opposition to Summary Judgment
In opposing the summary judgment motion, Rio Vista Association argued the
lawsuit was timely filed because it was filed one month after the City imposed
administrative fines for its failure to maintain the Douglas Drive median. On the merits,
Rio Vista Association argued questions of fact exist on several issues, including: (1)
whether Resolution 94-P25 adequately identified the Douglas Drive median as the
median requiring maintenance; (2) whether Resolution 94-P25's conditions are
enforceable covenants running with the land; (3) whether Rio Vista Association has the
authority to comply with the median-maintenance condition; (4) whether the current
maintenance obligations are beyond the scope of the original covenant; and (5) whether
the City properly served Rio Vista Association with the administrative citations.
In support of these arguments, Rio Vista Association submitted a copy of the
recorded Final Map, which did not specifically identify the Douglas Drive median
maintenance requirement, but stated that the CC&R's "required by" Resolution 94-P25
approving the tentative map "have been recorded." (Capitalization omitted.) Rio Vista
Association also requested the court take judicial notice of Oceanside Municipal Code
sections 17.1 through 17.15.1 which govern the City's authority to abate nuisances, and
11
provide that the enforcement officer shall issue a notice to the "property owner" or to the
person "in actual or apparent possession and control of the property." (Oceanside Mun.
Code, § 17.6, subd. (1).)
Rio Vista Association further submitted the declaration of Alan Koerv, a Rio Vista
Association director and the husband of the Association's president and property manager
Patricia Koerv. Mr. Koerv stated Rio Vista Association has no authority under the
governing CC&R's to perform the Douglas Drive median maintenance obligations
because the median was City-owned property and was not "Common Area[ ]" property
under its control. Mr. Koerv also asserted that "Contrary to the cynical misstatements of
the CITY in this case, Res. 94-P25 is not a governing document for Plaintiff [Rio Vista
Association]." As discussed more fully below, Mr. Koerv additionally stated that Rio
Vista Association's median-maintenance obligations have "significantly changed over the
subsequent years" because of "additional development and City mandates."
Regarding the administrative fine, Rio Vista Association argued the fine is
improper because it had no underlying obligation to maintain the Douglas Drive median
and because the administrative citation was served on Mrs. Koerv, who was not a proper
party to be served. In support, Rio Vista Association admitted Mrs. Koerv is its
"President and Director" and the "agent for service of process," but argued the citation
should have been served on the Rio Vista Association's "board of directors," rather than
on an individual officer or director.
12
Both parties asserted numerous evidentiary objections. The court sustained the
City's objections to certain evidence items, including to most of Mr. Koerv's declaration,
and overruled many of the parties' other objections.
F. Summary Judgment Ruling
After considering the parties' written submissions and arguments, the court granted
summary judgment. The court stated Rio Vista Association's claims seek to "invalidate
an administrative decision made in 1994," and therefore they are "barred by the 90-day
statute of limitations in . . . section 66499.37." The court additionally found the claims
failed on their merits, stating the City "met its burden of showing . . . [it] is entitled to a
judgment as a matter of law as the evidence demonstrates the approval conditions in
Planning Res. 94-P25 restrict the Plaintiff as a covenant running with the land which
exists as a matter of law . . . ."
DISCUSSION
I. Summary Judgment Review Standards
A summary judgment motion "shall be granted if all the papers submitted show
that there is no triable issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A triable issue of
material fact exists only if "the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with the
applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
850 (Aguilar).)
13
The issues on a summary judgment motion are framed by the pleadings. (Sweat v.
Hollister (1995) 37 Cal.App.4th 603, 607.) A moving defendant has the initial burden to
show one or more elements of the plaintiff's cause of action cannot be established, or that
there is a complete defense to the claim. (Garcia v. W&W Community Development, Inc.
(2010) 186 Cal.App.4th 1038, 1041.) If the defendant meets this burden, the burden
shifts to the plaintiff to show the existence of a triable issue. (Ibid.) The plaintiff may
not rely upon the pleading allegations but instead must set forth specific facts based on
admissible evidence showing a triable issue of material fact on the cause of action.
(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477; Trujillo v. First American
Registry, Inc. (2007) 157 Cal.App.4th 628, 635.)
"Because a summary judgment denies the adversary party a trial, [the motion]
should be granted with caution." (Colores v. Board of Trustees (2003) 105 Cal.App.4th
1293, 1305.) We consider all of the evidence and inferences reasonably drawn from the
evidence, and view the evidence in the light most favorable to the opposing party.
(Aguilar, supra, 25 Cal.4th at p. 843.) We review a summary judgment de novo and are
not bound by the trial court's stated reasons. (Blue Shield of California Life & Health Ins.
Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.)
II. Subdivision Map Act
The Subdivision Map Act "generally requires all subdividers of property to design
their subdivisions in conformity with applicable general and specific plans and to comply
with all of the conditions of applicable local ordinances." (Gardner v. County of Sonoma
(2003) 29 Cal.4th 990, 997.) "By generally requiring local review and approval of all
14
proposed subdivisions, the Act aims to 'control the design of subdivisions for the benefit
of adjacent landowners, prospective purchasers and the public in general.' [Citation.]"
(Ibid.) " '[T]he Subdivision Map Act constitutes the major land use permit control
vehicle for urban planning and environmental protection. [Citations.]' [Citations.]"
(Van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 564.)
To effectuate these purposes, the Subdivision Map Act authorizes local agencies
(including cities) to impose conditions of approval for tentative subdivision maps, i.e.,
requiring the developer to agree to certain conditions before the public entity will
approve a developer's proposed development. (§ 66411.) The local agency has broad
authority to impose any condition that encourages and facilitates orderly community
planning and/or protects the public health, safety and welfare. (See Associated Home
Builders, etc. Inc. v. City of Walnut Creek (1971) 4 Cal.3d 633, 638; Ayres v. City
Council of Los Angeles (1949) 34 Cal.2d 31, 37-38; Gomes v. County of Mendocino
(1995) 37 Cal.App.4th 977, 985.) If the developer/subdivider has complied with the
terms and conditions attached to the tentative map, the local agency must approve the
final map. (§ 66474.1.)
The Subdivision Map Act provides that an action to void or challenge a decision
imposing a condition to the approval of a tentative or final map must be filed "within 90
days after the date of the decision. Thereafter all persons are barred from any action or
proceeding or any defense of invalidity or unreasonableness of the decision or of the
proceedings, acts, or determinations." (§ 66499.37, italics added.)
15
This 90-day limitations period must be strictly construed. (Hensler v. City of
Glendale (1994) 8 Cal.4th 1, 27-28; see Aiuto v. City & County of San Francisco (2011)
201 Cal.App.4th 1347, 1356-1361 (Aiuto).) Section 66499.37 " 'manifests a legislative
purpose that a decision . . . approving a subdivision map and attaching a condition
thereto, shall be judicially attacked within [90 days], or not at all.' " (Hensler, supra, at p.
27, italics omitted.) The 90-day limitations period governs "whatever wrong was claimed
in the complaint or whatever relief was sought [if] the gravamen of the complaint [is] an
attack on a subdivision-related decision under the [Subdivision Map Act]." (Aiuto, supra,
201 Cal.App.4th at p. 1358.)
III. Declaratory Relief
A. City Satisfied Summary Judgment Burden To Show Enforceable Maintenance Duty
Rio Vista Association contends the court erred in granting summary judgment on
its declaratory relief claim. In this claim, Rio Vista Association sought an order that it
has no legal or contractual responsibility or authority to maintain the Douglas Drive
median. In moving for summary judgment, the City argued Rio Vista Association could
not recover on this claim because its obligation to maintain the median was an
enforceable City-imposed condition under the City's Subdivision Map Act authority and
Rio Vista Association's challenge to the condition was untimely and factually and legally
unsupported. It further argued that the applicable CC&R's authorize (if not mandate) Rio
Vista Association to comply with this City-imposed obligation.
In support of these arguments, the City presented evidence showing that as part of
its Subdivision Map Act authority, it imposed conditions for approval of the Rio Vista
16
subdivision tentative map and these conditions are contained in Resolution 94-P25. One
of those conditions required the Developer to dedicate Douglas Drive and construct a
median on this public street. Conditions 83 and 85 of Resolution 94-P25 require the
Developer to record CC&R's requiring its successor homeowners association to maintain
the landscape on the "median." The City produced evidence showing the Douglas Drive
median was the only median in the project area, and therefore that Resolution 94-P25's
median-maintenance requirement necessarily referred to the Douglas Drive median. This
inference was further supported by (1) the Developer's admission in the 1999 landscape
plans that its successor homeowners association would have a continuing responsibility
to maintain the Douglas Drive median4; (2) Rio Vista Association's conduct from at least
2004 to 2011 in maintaining the Douglas Drive median; and (3) Rio Vista Association's
express admission in 2004 that "[p]ursuant to [the City's] conditions of approval" it was
"responsible for the maintenance" of the landscape medians "located within the public
right-of-way on Douglas Drive."
The City further presented copies of the two CC&R's for the Rio Vista
development, which expressly incorporate Resolution 94-P25's conditions and provide
that those conditions run with the land, are binding obligations on Rio Vista Association,
and are enforceable by the City. The CC&R II also contained a provision that Rio Vista
Association has "the duty and obligation" to "enforce the provisions of this Declaration . .
4 The trial court overruled Rio Vista Association's evidentiary objections to these
plans. Rio Vista Association does not challenge the court's ruling in its opening brief,
and we are therefore bound by the court's ruling. (See Salas v. Department of
Transportation (2011) 198 Cal.App.4th 1058, 1074.)
17
. by appropriate means and carry out the obligations of the Association hereunder"
including to "maintain and otherwise manage . . . all property . . . which the Association
is obligated to repair or maintain pursuant to this Declaration . . . ."
These undisputed facts showed Resolution 94-P25 contained a condition that the
Developer (and/or its successor homeowners association) permanently maintain the
Douglas Drive median; the CC&R's incorporated this condition and provided Rio Vista
Association with the authority (and duty) to comply with the condition; and any
challenges to the validity of the Resolution 94-P25 conditions were untimely. On this
record, the City met its burden to show Rio Vista Association could not prevail on its
declaratory relief as a matter of law.
B. Rio Vista Association Did Not Meet Burden To Show Disputed Factual Questions
Once the City met its summary judgment burden on the declaratory relief claim,
the burden shifted to Rio Vista Association to show a triable issue of fact on its
allegations that it owed no duty, and/or had no power, to maintain the Douglas Drive
median. Rio Vista Association raises numerous contentions in an attempt to show it met
its burden. As explained below, we find these contentions lack merit.
1. Challenge to Validity of Resolution 94-P25 Is Time-Barred
Rio Vista Association asserts several arguments that challenge the validity of the
median-maintenance condition. For example, Rio Vista Association contends, the
Douglas Drive median maintenance condition is a "Facially Invalid Developer's Fee."
(See § 66000, subd. (b).) Rio Vista Association additionally argues the City had no
authority to impose a "permanent" obligation on a homeowners association to perform
18
acts that benefit property outside the development. These challenges are time-barred
because they challenge the decision to condition the development approval on the
agreement to permanently maintain the median. (§ 66499.37.)
We reject Rio Vista Association's contention that section 66499.37's 90-day
limitations rule does not bar these challenges because statutes of limitations generally do
not bar defensive claims or declaratory relief claims seeking to invalidate a contractual or
legal obligation. (See Styne v. Stevens (2001) 26 Cal.4th 42, 51-53.) This general rule
does not apply if the governing statute includes a limitations period for affirmative and
defensive claims. (City of Saratoga v. Hinz (2004) 115 Cal.App.4th 1202, 1216-1218;
see Styne, supra, 26 Cal.4th at p. 53.) This is the case here. Section 66499.37 expressly
encompasses defensive claims within its reach, stating that after the 90-day period, "all
persons are barred from any action or proceeding or any defense of invalidity or
unreasonableness of the decision or of the proceedings, acts, or determinations." (Italics
added.)
We also find unavailing Rio Vista Association's argument that the statute of
limitations did not accrue until the City "demanded performance" by issuing
administrative citations. In support of this argument, Rio Vista Association cites
Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379. The Cutujian court
considered when the applicable four-year statute of limitations commenced on a claim for
enforcement of a covenant to perform an affirmative obligation (the obligation to repair
slope areas in a development) in recorded CC&R's under which the affirmative obligation
arose only when " 'necessary or appropriate.' " (Id. at p. 1387.) Interpreting this
19
particular language, the court found the statute of limitations to enforce the obligation did
not begin to run until the plaintiff demanded that the association fulfill this obligation,
reasoning that the obligation did not commence until the repairs became necessary. (Id.
at pp. 1384-1389.)
This holding on the delayed accrual for enforcing an open-ended CC&R's
obligation has never been expanded beyond its narrow facts and does not apply to the
circumstances here where the maintenance obligation began upon the approval of the
final map and recording of the CC&R's. (See Crestmar Owners Assn. v. Stapakis (2007)
157 Cal.App.4th 1223, 1227-1228.)
Rio Vista Association additionally argues the City cannot prevail on its section
66499.37 limitations defense because it did not specifically identify this code section
when alleging the defense in its answer. By failing to raise the issue below, Rio Vista
Association forfeited its contention on appeal. (See Feduniak v. California Coastal Com.
(2007) 148 Cal.App.4th 1346, 1381.) Rio Vista Association had the full opportunity to
counter the City's arguments based on section 66499.37 in the summary judgment
proceedings, and there is no showing it was prejudiced by the lack of specificity in the
City's answer.
2. Undisputed Facts Show Maintenance Condition Is Binding on Rio Vista Association
Rio Vista Association alternatively contends it is not seeking to invalidate a
development condition and instead is merely seeking an order that the condition is not
binding on a successor in interest. Even assuming the claim was timely, the argument
fails on its merits.
20
Rio Vista Association's contention that the Douglas Drive median-maintenance
condition does not bind successors is grounded on its assertion that the condition did not
satisfy the "strict requirements" of Civil Code sections 1461, 1462, and 1468. However,
these code sections do not govern the determination of whether a public entity's
declaration of restrictions is binding on successors in interest. (See Ojavan Investors,
Inc. v. California Coastal Com. (1994) 26 Cal.App.4th 516, 526 (Ojavan); see also
Scrogings v. Kovatch (1976) 64 Cal.App.3d 54, 57-58.) A public entity's development
condition is generally binding as a matter of law on the developer's successors if the
successors had actual or constructive notice of the condition. (See Ojavan, supra, at pp.
526-527.)
In this case, Rio Vista Association had constructive notice of the contents of
Resolution 94-P25 (including the median-maintenance condition) through the recording
of the tentative and final maps and the recorded CC&R documents that incorporate
Resolution 94-P25 into the binding provisions. Moreover, Rio Vista Association
acknowledged and accepted the obligation by performing the work for at least seven
years and by expressly admitting the binding obligation in its cost-sharing agreement
with Mission Wells's developer.
To the extent Rio Vista Association is contending the maintenance condition is not
binding on it because Resolution 94-P25 did not specifically identify the median as the
"Douglas Drive median," the City presented evidence that the only median improvement
included in the development plans was the Douglas Drive median, and that all parties
(including the Developer and Rio Vista Association) expressed the understanding that
21
this condition referred to the Douglas Drive median. Rio Vista Association did not
present any contrary evidence. On this record, the only reasonable inference is that
Resolution 94-P25's median-maintenance requirement concerned the Douglas Drive
median.
The waiver doctrine also precludes Rio Vista Association's contention. The
Developer (Rio Vista Association's predecessor) specifically agreed to the median-
maintenance condition in exchange for the benefits afforded by the City's issuance of the
tentative and final maps, which included the development and sale of the homes in the
residential subdivision. By accepting these benefits in exchange for its agreement to be
bound by the required restrictions, the Developer could not transfer or assign to Rio Vista
Association any legal rights greater than it possessed. (See Ojavan, supra, 26
Cal.App.4th at pp. 527-528; Rossco Holdings Inc. v. State of California (1989) 212
Cal.App.3d 642, 654-655.) Rio Vista Association obtained rights to the property with the
same limitations and restrictions that bound its predecessor, and waived its right to
challenge the binding nature of those conditions.
3. Rio Vista Association's Authority To Comply with Median-Maintenance Condition
Rio Vista Association next contends that even if the Douglas Drive median
condition is binding, it has no authority to comply with the condition because the
governing CC&R's limit its authority to actions that benefit common area property within
the Rio Vista development.
The argument is factually unsupported. As discussed above, the CC&R I
specifically incorporates all of the development restrictions contained in Resolution 94-
22
P25. The CC&R II likewise incorporates the City's conditions for approving the tentative
map, and provides that the property is restricted by these conditions, including those
specifically set forth in Resolution 94-P25. The CC&R II prohibits any party from
restricting the homeowners association "from complying with all applicable provisions of
the Tentative Map, the Final Map and other City ordinances, rules, policies or
regulations." CC&R II further states that Rio Vista Association "shall have the duty and
obligation" to "enforce the provisions of this Declaration . . . by appropriate means and
carry out the obligations of the Association hereunder." The CC&R II additionally
provides that Rio Vista Association may assess its members for promoting the
management of common areas, and also "in furtherance of any other duty or power of the
Association." (Italics added.)
Under these provisions, the applicable CC&R's provide Rio Vista Association
with the authority (and the duty) to comply with the Douglas Drive median maintenance
condition.
We also reject Rio Vista Association's contention the City lacks standing to
enforce the conditions contained in Resolution 94-P25. Both recorded CC&R's state the
City retains the right to enforce violations of the development conditions, including those
contained in Resolution 94-P25.
4. Challenges to Scope of Median-Maintenance Obligation
Rio Vista Association additionally contends the Douglas Drive median has
"doubled in size" since its original construction and therefore there was a triable issue of
23
fact regarding the scope of its continuing maintenance obligation. The argument lacks
merit.
First, this change-in-scope claim is not alleged in Rio Vista Association's
complaint. The complaint was directed solely at challenging the validity of the condition
and did not allege the obligation was unenforceable because it had increased in scope.
" 'The function of the pleadings in a motion for summary judgment is to delimit the scope
of the issues' " and to frame "the outer measure of materiality in a summary judgment
proceeding." (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)
The complaint " 'set[s] the boundaries of the issues to be resolved at summary judgment.'
[Citations.]" (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244,
1250.) A moving defendant's burden requires that it negate only the plaintiff's theories of
liability as alleged in the complaint, and the defendant need not refute liability on some
theoretical possibility not included in the pleadings. (Id. at p. 1254; Hutton v. Fidelity
National Title Co. (2013) 213 Cal.App.4th 486, 499.)
Additionally, even assuming Rio Vista Association had adequately pled this claim,
Rio Vista Association did not submit any admissible evidence showing its median-
maintenance responsibilities have materially changed over the years. In support of this
assertion, Rio Vista Association relies solely on a paragraph contained in the declaration
of Mr. Koerv, stating: "It is also important to note that the size, dimensions and
maintenance requirements of the Douglas Drive median, located on City property,
significantly changed over the subsequent years, due to additional development, and City
24
mandates. The median on Douglas Drive . . . has approximately doubled in size since the
original construction in the early 2000's."
This factual assertion is not properly before us. The trial court sustained City's
evidentiary objections to this portion of Mr. Koerv's declaration, and Rio Vista
Association does not challenge the court's evidentiary ruling. Accordingly, we must
presume the court's evidentiary ruling was correct and disregard this portion of Koerv's
declaration. (See Salas v. Department of Transportation, supra, 198 Cal.App.4th at p.
1074; Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1195-1196; Alexander
v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 140.)
5. Adjacent Residential Development
Rio Vista Association also contends it raised a triable issue of fact by presenting
evidence regarding the median maintenance obligations of the adjacent residential
development (Mission Wells). The evidence showed that Mission Wells had similar
responsibility for maintaining the Douglas Drive median, and its developer (Standard
Pacific) intended to make some improvements to the Douglas Drive median. The
evidence also showed that in 2004, the Rio Vista Association and Standard Pacific
entered into a written contract in which both parties acknowledged their median-
maintenance obligations to the City and agreed to share the costs to satisfy these
obligations.
These facts do not show the Resolution 94-P25 median-maintenance condition
was no longer valid and enforceable against Rio Vista Association. The fact that another
25
party has the same or similar development condition does not—without more—relieve
the party of its legal obligation to fulfill the promised performance.
Additionally, contrary to Rio Vista Association's assertions, the fact the Mission
Wells CC&R's specifically identified Douglas Drive when referring to the median
maintenance requirement—whereas the Rio Vista CC&R's simply incorporated by
reference the Resolution 94-P25 conditions—does not create a triable issue of material
fact regarding the binding nature of the condition in this case. Another residential
developer's decision to be more specific in its CC&R's does not mean that the Rio Vista
CC&R's did not impart sufficient notice.
IV. Cause of Action Challenging the Administrative Enforcement Order
Rio Vista Association also contends the court erred in granting summary judgment
because triable issues of fact existed on its cause of action challenging the administrative
enforcement order imposing the $200 fine. Specifically, it argues the enforcement order
was invalid because (1) Rio Vista Association had no obligation to maintain the Douglas
Drive median; and (2) the City's service of the underlying citations violated applicable
City rules.
For the reasons discussed above, we reject the first contention.
With respect to the second (service) issue, the City served Patricia Koerv with the
administrative citations. The City presented evidence showing Rio Vista Association is
the entity responsible for performing the median-maintenance obligations and Patricia
Koerv is the Association's president and is also registered with the California Secretary of
State as the agent for service for that entity. The citation was therefore properly served
26
on Patricia Koerv as Rio Vista Association's agent. Additionally, contrary to Rio Vista
Association's assertions, there is no showing Patricia Koerv has been, or will be, held
personally liable for the Association's citation fine, nor that she was a party to the
litigation below or on appeal.
We likewise reject Rio Vista Association's contention that the citation violated the
City's municipal code because Patricia Koerv does not "own, control or possess" the
Douglas Drive median. Because the evidence showed Rio Vista Association was the
entity responsible for performing the Douglas Drive median maintenance, the citation
was appropriate. (See Oceanside Mun. Code, §§ 1.14 to 1.14.7.)5
V. New Trial Motion
Rio Vista Association contends the court erred in denying its new trial motion
because in its initial ruling the court failed to adequately address the fact that the adjacent
residential development (Mission Wells) also had responsibilities to maintain the Douglas
Drive median. We reject this contention.
There is nothing in the record suggesting the court did not consider this evidence
in ruling on the City's summary judgment motion. Moreover, as discussed above, the
evidence pertaining to Mission Wells's maintenance obligations was not a basis for
denying the summary judgment motion. The fact that Mission Wells has equivalent
obligations to maintain the median does not suggest that Rio Vista Association's duty to
5 Over Rio Vista Association's objections, we grant the City's request that we take
judicial notice of the applicable Oceanside Municipal Code sections. (See Evid. Code,
§§ 459, subd. (a), 452, subd. (b).)
27
perform has been eliminated and/or that the median-maintenance condition is no longer
valid and enforceable against Rio Vista Association. Additionally, Rio Vista Association
never sought any relief in its complaint based on Mission Wells's development
obligations, and therefore these issues were not a proper basis for opposing the summary
judgment or for moving for a new trial.
VI. Attorney Fees
Rio Vista Association contends the court erred in awarding the City attorney fees
under Civil Code section 1717.
A. Background
After the court granted its summary judgment motion, the City moved for
prevailing party attorney fees based on a provision contained in the CC&R II.6 Relying
on Civil Code section 1717, the City argued it was entitled to contractual fees under this
provision because Rio Vista Association's complaint sought to limit its contractual
6 This CC&R II provision states: "In the event any suit, action, or other proceeding
that is permitted by the terms of this Declaration, is instituted to enforce any of the
provisions contained in this Declaration, the party prevailing in such suit, action, or
proceeding, shall be entitled to recover from the other party thereto as part of the
judgment, its actual attorneys' fees and costs of such suit, action or proceeding." The
CC&R II also contains a second fees provision: "Neither the Declaration . . . nor any
other means or method shall . . . operate, directly or indirectly, to prevent or preclude any
other Owners or any person, individual, or entity from complying with all applicable
provisions of the Tentative Map, the Final Map and other City ordinances, rules, policies
or regulations. [¶] . . . [¶] . . . None of the terms of the Declaration shall be deleted or
modified without the consent of the City Attorney. Further, the City shall have the right
but not the obligation to enforce any of the above provisions and that in the event the City
pursues legal action to enforce any of its rights, the City shall be entitled to reasonable
attorneys' fees."
28
obligations under the CC&R's and/or to invalidate the City's approval condition that was
incorporated into the CC&R's.
The City submitted the supporting declaration of Annie Perrigo, the City attorney
with primary responsibility for representing the City in the matter. Perrigo stated the City
incurred $39,015 in attorney fees, consisting primarily of Perrigo's time (171.8 hours) at
an hourly rate of $225. Perrigo also provided a detailed breakdown of the litigation tasks
performed and the time spent for each task.
In opposition, Rio Vista Association argued: (1) Civil Code section 1717 is
inapplicable because Rio Vista Association did not bring its claims " 'on the contract' ";
(2) Perrigo's declaration did not include sufficient information to support the amount of
attorney fees requested; and (3) Rio Vista Association is a nonprofit entity and cannot
afford to pay an attorney fees award. In support of the third argument, Rio Vista
Association submitted its attorney's declaration, stating "[t]he impact of any award of fees
would be devastating to this small community's landscape association."
After considering the parties' submissions, the court granted the motion and
awarded the City $39,690 in attorney fees. The court found Civil Code section 1717
applied because "[t]he governing CC&Rs . . . authorize an award of fees to the prevailing
party where an action is filed 'to enforce any of the provisions contained in the
Declaration' " and "the main thrust of this litigation was the governing CC&Rs . . . ." The
court also concluded that Perrigo's declaration and time/task documentation was
sufficient to allow the court to determine the amount of fees reasonably incurred in the
matter, and rejected Rio Vista Association's argument that minor redactions in the
29
supporting information precluded the court from determining the reasonable fees. The
court further rejected Rio Vista Association's argument that the court should take into
consideration its financial condition in ruling on the motion.
B. Analysis
Civil Code section 1717 governs contractual prevailing-party attorney fees and
applies to "any action on a contract." (Civ. Code, § 1717, subd. (a), italics added.)
"California courts liberally construe the term ' " 'on a contract' " ' . . . As long as the
action 'involve[s]' a contract it is ' "on [the] contract" ' within the meaning of [Civil Code]
section 1717." (Dell Merk, Inc. v. Franzia (2005) 132 Cal.App.4th 443, 455; see
Hastings v. Matlock (1985) 171 Cal.App.3d 826, 841.) An action seeking a declaration
of parties' rights under contractual language is "on the contract" under this code section.
(See City and County of San Francisco v. Union Pacific R.R. Co. (1996) 50 Cal.App.4th
987, 1000.)
Nonsignatory defendants, who are sued on a contract as if they were parties to it,
may be entitled to attorney fees upon prevailing in the action. (See Reynolds Metals Co.
v. Alperson (1979) 25 Cal.3d 124, 128.) Civil Code "section 1717 . . . provide[s] a
reciprocal remedy for a nonsignatory defendant . . . when a plaintiff would clearly be
entitled to attorney's fees should he prevail in enforcing the contractual obligation against
the defendant." (Ibid.)
In this case, the CC&R II specifically provided that the City had the "right" to
enforce the CC&R rules requiring Rio Vista Association to comply with applicable
provisions of the tentative and final maps, including Resolution 94-P25. This same
30
clause stated that "in the event the City pursues legal action to enforce any of its rights,
the City shall be entitled to reasonable attorneys' fees." The CC&R II also contained a
more general attorney fees provision stating that: "In the event any suit, action, or other
proceeding that is permitted by the terms of this Declaration, is instituted to enforce any
of the provisions contained in this Declaration, the party prevailing . . . shall be entitled to
recover from the other party . . . ."
Under these provisions, the City was entitled to prevailing party attorney fees.
Although the City was not a signatory to the CC&R II document, the City had a status
akin to a third party beneficiary. The CC&R II provisions required Rio Vista Association
to comply with the City's development conditions and expressly stated that this obligation
was specifically enforceable by the City. In its complaint, Rio Vista Association sought
an order interpreting the CC&R II document in such a way that it did not have the duty or
authority to comply with the City's conditions set forth in Resolution 94-P25. This action
was clearly "on the contract" and if Rio Vista Association had prevailed it would have
been entitled to attorney fees against the City.
We also find unavailing Rio Vista Association's challenge to the City's supporting
documentation. The City attorney with primary responsibility for the litigation provided
her supporting declaration and a detailed breakdown of the tasks performed. The fact
that this attorney did not include additional details such as her age and educational
background did not render the supporting information materially incomplete.
Additionally, the minor redactions in the detailed billing information does not show the
31
court abused its discretion in concluding the requested fees were reasonable and
necessary.
VII. Additional Contentions
In its opening brief, Rio Vista Association asserts numerous points within each of
its main contentions. We have reviewed each of those assertions and find them to be
baseless. There is no need to discuss each of these subpoints in this opinion. (See
Linhart v. Nelson (1976) 18 Cal.3d 641, 645 ["Having examined [appellants'] other
contentions, we find them of insufficient merit to warrant discussion."].)
Rio Vista Association additionally raises several contentions for the first time in
its reply brief. We decline to consider these assertions for "[o]bvious reasons of
fairness." (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; accord Holmes v.
Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1074.) Arguments
raised for the first time in a reply brief are forfeited. (Wurzl v. Holloway (1996) 46
Cal.App.4th 1740, 1754, fn. 1.)
DISPOSITION
Judgment affirmed. Appellant to bear respondent's costs on appeal.
HALLER, J.
WE CONCUR:
MCCONNELL, P. J.
HUFFMAN, J.
32