Fairly-Haze v. Whitesails Community Association CA2/6

Filed 5/4/23 Fairly-Haze v. Whitesails Community Association CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SUZAN FAIRLY-HAZE et al., 2d Civ. No. B311574
(Super. Ct. No. 56-2019-
Plaintiffs and Appellants, 00527637-CU-PA-VTA)
(Ventura County)
v.
WHITESAILS COMMUNITY
ASSOCIATION,
Defendant and Respondent.
Suzan Fairly-Haze and Robert Haze (collectively
“Petitioners”) own a residential condominium (Unit 112) within
the Whitesails Community Association (the Association) in the
City of Oxnard. In 2016, a dispute arose between Petitioners and
the Association regarding the installation of a pressure reducing
valve above one of Petitioners’ two assigned parking spaces (Nos.
33 and 34) in the Association’s underground parking garage. At
about the same time, Robert1 requested a dedicated handicapped
accessible parking space in the underground garage. The parties
agreed to submit these issues to private, binding arbitration.
The arbitrator ruled primarily in the Association’s favor.
Pertinent here is the arbitrator’s finding (1) that Robert is
entitled to an assigned handicapped accessible space in the
outside parking area, closest to the underground parking garage,
(2) provided Petitioners agree to surrender one of their two
parking spaces in the garage.
Petitioners filed a petition to vacate and/or correct the
arbitrator’s rulings. The trial court denied the petition,
confirmed the arbitrator’s Final Award and granted the
Association’s motion for attorney fees. Petitioners challenge the
judgment and fee award. We affirm in all respects.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Parking Dispute
The Association is a nonprofit mutual benefit corporation
governed by a Declaration of Covenants, Conditions &
Restrictions (Declaration or CC&Rs). The Declaration is an
equitable servitude that runs with the land and is a contract
between the Association and the condominium owners. The
original Declarant was the property’s developer. After selling the
condominiums to individual owners, the Declarant transferred its
management responsibilities to the Association. As condominium
owners, Petitioners are members of the Association and are
bound by the CC&Rs and other governing documents.
Ownership of each condominium includes two dedicated
parking spaces in the Association’s underground parking garage.
These spaces are deeded to the owners when they purchase a unit
To avoid confusion, we refer to Robert Haze by his first
1
name. No disrespect is intended.
2
and are not owned by the Association. Accordingly, when
Petitioners purchased their condominium, they assumed
ownership of two assigned underground parking spaces. The
only parking spaces in the garage are those assigned to
individual units.
Petitioners complained when the Association installed a
pressure reducing valve on a plumbing line above one of their
underground parking spaces. They informed the Association of
Robert’s physical disability and advised that the valve’s
installation prevented him from using either parking space.
On August 30, 2016, Petitioners’ attorney sent a letter
advising the Association “that there are no handicapped parking
spaces located in the garage of [the building], as is required by
law, and that Robert is entitled to a reasonable accommodation
from the Association with respect to his parking.” The attorney
“requested that the Association provide Robert one permanent
reserved handicapped space for his exclusive use near the
elevator in the underground garage, or, if that is not possible
because all of the spaces are deeded, then outside as close as
possible to the underground garage.”
Because all underground parking spaces are indeed owned
by the individual homeowners, the Association responded that it
could not assign another underground space to Petitioners. The
Association acknowledged the garage originally had a
handicapped accessible parking space, as required by section
1109.A.4 of the Building Code, but produced evidence that the
Declarant developer painted over the handicapped sign and
deeded the space to a non-disabled homeowner.
Adjacent to Petitioners’ building is a paved outdoor public
parking area containing 149 spaces. Fifty-nine of those spaces,
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including four handicapped spaces, are available for outside
residential parking.
B. Initial Arbitration Award
The parties selected the Honorable Alan S. Penkower, Ret.,
as the arbitrator. Petitioners’ “Demand for Arbitration”
summarized their claims against the Association as follows: “(a)
breach of the Association’s CC&Rs and violation of associated
law; (b) breach of fiduciary duty; (c) nuisance; (d) trespass; (e)
negligence; and [(f)] failure to make a reasonable accommodation
for Robert.” The relief requested included “the provision of a
permanent handicapped parking space for the exclusive use of
Robert, as a reasonable accommodation, either in the
underground garage near the elevator, or outside as close as
possible to the underground garage.”
After hearing evidence and argument, the arbitrator issued
a 45-page Initial Award. The arbitrator rejected Petitioners’
claims regarding the installation of the pressure reducing valve.
He further found the Association “is not in violation of Section
1118.A.l of the . . . Building Code or Section 6.1.7 of the CC&Rs,
and is not empowered, or required, under Section 6.1.7, to order
an exchange of assigned parking spaces in the garage.”
C. Final Arbitration Award
Petitioners moved for correction of the arbitrator’s Initial
Award. In his Final Award, the arbitrator amended the Initial
Award as follows: “[The Association’s] counsel shall supply a
copy of the Award and this Ruling to the retained architect. In
assessing feasibility, the architect shall analyze the current
configuration of the garage, including the fact that all existing
parking spaces are, by reference to the CC&Rs, ‘deeded’ as
exclusive uses to individual residential units. The architect shall
determine whether it is possible to physically enlarge and/or
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reconfigure the garage to safely provide an additional exclusive
accessible parking space therein, and, if so, to discuss the cost
and regulatory ramifications thereof. The architect shall prepare
a report with his/her analysis and findings . . . .”
Ultimately, the architect determined the underground
parking garage could not be safely enlarged or modified to allow
for a handicapped accessible space. On that point, the Final
Award provided: “In the event that it is determined that it is not
feasible to provide an additional accessible parking space in the
garage, the alternative space in the outdoor Public Parking Area
as close as possible to the garage shall be provided by [the
Association] in a location selected by [Petitioners]. Such parking
space shall be appropriately marked as a handicapped space for
the exclusive use of Robert Haze. If [Petitioners] select an
existing standard parking space, then that space must be
reconfigured as an accessible parking space. If [Petitioners]
select an existing designated handicapped space, one of the other
standard parking spaces in the outdoor parking area should be
converted to a handicapped space to comply with the 5%
requirement under the . . . Building Code.”
Lastly, the arbitrator ruled that “[t]he providing of an
accessible space for the exclusive use of Robert Haze is
conditioned upon [Petitioners] surrendering to [the Association]
one of their originally assigned parking spaces.”
D. Trial Court’s Confirmation of
Final Arbitration Award
Petitioners claimed the arbitrator’s awards were contrary
to public policy and violated their unwaivable statutory rights
under the Building Code and the Fair Employment and Housing
Act (FEHA), Government Code section 12900 et seq. Specifically,
they sought to vacate the arbitrator’s ruling, referenced as
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“Ruling 1,” that the “painting over of the one handicapped
(disabled) parking space in the underground garage of Building 1
designated as parking space 26, and given to a non-physically
disabled owner, did not violate the 2001 . . . Building Code and/or
the approved plans for the construction of Building 1 where
Petitioners reside.”
Petitioners also sought to vacate or correct the arbitrator’s
ruling, referenced as “Ruling 2,” that “[t]he providing of an
accessible space for the exclusive use of Robert Haze is
conditioned upon [Petitioners] surrendering to [the Association]
one of their originally assigned parking spaces.”
The trial court rejected both requests. It found “the
fundamental weakness in Petitioners’ arguments based on the
Arbitrator’s finding [(Ruling 1)] that the Building Code provisions
were complied with is Petitioners’ failure to demonstrate that
they would have obtained a different award had the Arbitrator
held that the underground parking garage was not in compliance
with those provisions.” The court also found Ruling 2 is not “‘so
egregious as to constitute misconduct or so profound as to render
the process unfair.’”
E. Award of Attorney Fees
The Association moved for attorney fees under Civil Code
section 5975, subdivision (c), which authorizes attorney fees to
the prevailing party in actions “to enforce the governing
documents.” Petitioners argued that Ruling 2 “should be
modified to avoid (among other things) a violation of Section 6.1.7
of the . . . CC&Rs.” The trial court found that the Association
was the prevailing party on this issue and awarded it a pro-rata
share of attorney fees (i.e., 50 percent of the requested fees)
pursuant to Civil Code section 5975, subdivision (c).
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The amended judgment, dated February 26, 2021, confirms
the arbitrator’s Final Award and grants the Association attorney
fees in the amount of $17,093.50.
II. DISCUSSION
Petitioners contend the arbitrator erred in issuing Rulings
1 and 2, and that the trial court erroneously denied their petition
to vacate Ruling 1 and to vacate or correct Ruling 2. Petitioners
further contend the trial court improperly awarded attorney fees
to the Association. We reject each contention.
A. Standard of Review
A judgment entered upon confirmation of an arbitration
award is appealable on the ground the award exceeded the
arbitrator’s authority. (Advanced Micro Devices, Inc. v. Intel
Corp. (1994) 9 Cal.4th 362, 366, 372-373, 374 (Intel Corp.); Code
Civ. Proc., § 1286.2, subd. (a)(4).)2 Although we review the trial
court’s order confirming the award de novo (Intel Corp., at p. 376,
fn. 9), both the trial court and the Court of Appeal review the
arbitrator’s award deferentially. The award must be upheld if it
is “even arguably based on the contract” between the parties. (Id.
at p. 381.) Courts also must defer to the arbitrator’s
determination of the scope of his or her contractual authority to
fashion remedies. (Id. at p. 376.) Thus, where the issue is the
remedy chosen by the arbitrator, the question on appeal is
whether the remedy is “rationally drawn from the contract” as
interpreted by the arbitrator. (Id. at pp. 376-377.)
Our review does not extend to the merits of the award or to
the arbitrator's underlying conclusions of fact and law. Indeed,
arbitrators “‘may base their decision upon broad principles of
justice and equity, and in doing so may expressly or impliedly
2All statutory references are to the Code of Civil Procedure
unless otherwise indicated.
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reject a claim that a party might successfully have asserted in a
judicial action.’ [Citations.]” (Moncharsh v. Heily & Blase (1992)
3 Cal.4th 1, 10-11 (Moncharsh).)
“Although section 1286.2 permits the court to vacate an
award that exceeds the arbitrator’s powers, the deference due an
arbitrator’s decision on the merits of the controversy requires a
court to refrain from substituting its judgment for the arbitrator’s
in determining the contractual scope of those powers.” (Intel
Corp., supra, 9 Cal.4th at p. 372.) “Arbitrators ‘do not exceed
their powers’ . . . merely by rendering an erroneous decision on a
legal or factual issue, so long as the issue was within the scope of
the controversy submitted to the arbitrators. ‘The arbitrator’s
resolution of these issues is what the parties bargained for in the
arbitration agreement.’” (Moshonov v. Walsh (2000) 22 Cal.4th
771, 775-776.)
B. The Trial Court Did Not Err by Confirming
Rulings 1 and 2
It is undisputed the arbitrator erroneously found there
were no Building Code violations in the Association’s
underground parking garage. As the trial court explained,
section 1109.A.4 of the Building Code “require[s] that the
Association maintain one handicapped parking space in the
underground garage to Building 1 at all times,” and section
1109.A.6 entitled Robert, upon request, to a handicapped parking
space in the garage. Once he made that request, Robert acquired
“a statutory right under the Building Code to a handicapped
parking spot in the underground garage.”
“Arbitrators may exceed their powers by issuing an award
that violates a party’s unwaivable statutory rights or that
contravenes an explicit legislative expression of public policy.”
(Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 916 (Richey);
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Board of Education v. Round Valley Teachers Assn. (1996) 13
Cal.4th 269, 272-277; California Dept. of Human Resources v.
Service Employees Internat. Union, Local 1000 (2012) 209
Cal.App.4th 1420, 1434.) But “‘“[a]rbitrators do not ordinarily
exceed their contractually created powers simply by reaching an
erroneous conclusion on a contested issue of law or fact, and
arbitral awards may not ordinarily be vacated because of such
error.”’” (Richey at p. 917.) “A rule of judicial review under
which courts would independently redetermine the scope of an
arbitration agreement already interpreted by the arbitrator
would invite frequent and protracted judicial proceedings,
contravening the parties’ expectations of finality.” (Intel Corp.,
supra, 9 Cal.4th at p. 373.)
Circumstances justifying judicial review arise when the
arbitrator imposes a remedy not authorized by the arbitration
agreement. (Intel Corp., supra, 9 Cal.4th at p. 375.) Here,
Petitioners specifically agreed to submit the issue of the “breach
of the Association’s CC&Rs and violation of associated law” to
binding arbitration and requested that the arbitrator award “a
permanent handicapped parking space for the exclusive use of
Robert, as a reasonable accommodation, either in the
underground garage near the elevator, or outside as close as
possible to the underground garage.” (Italics added.) Petitioners
have not shown that the arbitrator exceeded his powers by
granting one of the two proposed alternative requests for
accommodation submitted to arbitration.
Petitioners also fail to explain how the award is
inconsistent with the vindication of their unwaivable statutory
rights. Petitioners do not claim that the arbitration proceeding
itself was unfair, that they were denied discovery or prevented
from presenting or cross-examining witnesses, or that they were
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otherwise thwarted in their efforts to prove their claims.
Similarly, Petitioners do not contend that the arbitrator was
biased or corrupt, or that the award was procured by fraud or
undue influence.
Under Petitioners’ broad construction of the public policy
exception, every arbitration award that denies statutory relief
would be open to plenary judicial review as “inconsistent” with
the policies underlying those statutory schemes. If that were the
law, “[t]he public policy exception would swallow the rule of
arbitral finality.” (City of Richmond v. Service Employees
Internat. Union, Local 1021 (2010) 189 Cal.App.4th 663, 675.)
In any event, “[a] judgment is reversible only if any error or
irregularity in the underlying proceeding was prejudicial.”
(Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.)
Appellant bears the burden of demonstrating prejudice, which is
never presumed. (Cal. Const., art. VI, § 13; In re Marriage of
Goddard (2004) 33 Cal.4th 49, 56; Freeman, at p. 528.) Prejudice
generally is measured by asking whether “‘it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.’” (Cassim v.
Allstate Ins. Co. (2004) 33 Cal.4th 780, 800, quoting People v.
Watson (1956) 46 Cal.2d 818, 836; Rodriguez v. Parivar, Inc.
(2022) 83 Cal.App.5th 739, 756-757.)
Petitioners have not met this burden. We agree with the
trial court that even if the arbitrator did err in issuing Ruling 1,
petitioners have failed to show that it must be reversed. As the
court explained, “the fundamental weakness in Petitioners’
arguments based on the Arbitrator’s finding that the Building
Code provisions were complied with is Petitioners’ failure to
demonstrate that they would have obtained a different award
had the Arbitrator held that the underground parking garage
10
was not in compliance with those provisions. Simply stated,
Petitioners failed to demonstrate that there was any alternative
order the Arbitrator could have made that the Association could
have legally complied with.”
It is undisputed that the existing underground parking
spaces are owned by the individual homeowners, and that the
Association lacks authority to reconfigure or reassign those
spaces to create a handicapped accessible space in the garage.
Petitioners do not challenge the retained architect’s opinion that
the underground garage cannot be safely expanded or modified to
add a handicapped accessible space. Given that the creation of
an underground handicapped space is not a remedy the
arbitrator could have legally mandated, the trial court
appropriately declined to vacate Ruling 1. (See, e.g., Richey,
supra, 60 Cal.4th at p. 921 [“[E]ven if the arbitrator was
mistaken in relying on an honest belief defense, plaintiff was not
prejudiced thereby and the arbitrator’s award in defendants’
favor will stand”].)
Concerning Ruling 2, the arbitrator’s Final Award does not
allow Petitioners to keep their two assigned underground parking
spaces in addition to a third assigned outdoor space for Robert’s
exclusive use. Nothing in the record suggests that any other
homeowners in the condominium complex have more than two
assigned parking spaces at their disposal.
Citing Astralis Condo. Ass’n v. Sec’y, US Dep’t of Hous. &
Urban Dev. (1st Cir. 2010) 620 F.3d 62 (Astralis), the arbitrator
determined that Robert’s exclusive use of the outside
handicapped accessible space required Petitioners to
“surrender[]” to the Association one of their originally assigned
underground parking spaces.
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The complainants in Astralis also “own[ed] their unit and
two parking spaces.” (Astralis, supra, 620 F.3d at p. 64.) Citing
physical disabilities, they requested, but were denied, the
exclusive use of two handicapped accessible parking spaces close
to their unit. (Id. at p. 65.) An administrative law judge found
that the condominium association had discriminated against the
complainants and directed that they “receive exclusive use of the
two handicapped parking spaces at issue; provided, however, that
they agree to surrender their originally assigned spaces.” (Ibid.)
Petitioners contend the arbitrator exceeded his authority
by making the same ruling here. We are not persuaded. As the
trial court observed, Astralis “at least suggests that such a
[surrender] condition does not render a reasonable parking
accommodation per se invalid.” Moreover, the arbitrator was
allowed to base his decision upon what he believed was just and
equitable under the circumstances. (See Moncharsh, supra, 3
Cal.4th at pp. 10-11.)
C. The Trial Court Properly Awarded
Attorney Fees to the Association
Petitioners contend the trial court erred by awarding the
Association a portion of its attorney fees under Civil Code section
5975, subdivision (c) of the Davis-Stirling Common Interest
Development Act (Act). That subdivision provides: “In an action
to enforce the governing documents, the prevailing party shall be
awarded reasonable attorney’s fees and costs.” (Italics added.)
The award is not discretionary. The Act “mandates the award of
attorney’s fees to the prevailing party.” (Almanor Lakeside Villas
Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 776.)
The CC&Rs are part of a homeowners association’s
“‘governing documents.’” (Branches Neighborhood Corp. v.
CalAtlantic Group, Inc. (2018) 26 Cal.App.5th 743, 754, fn. 6.)
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The trial court tentatively determined Petitioners’ action was not
an action to enforce the Association’s governing documents, but
later ruled that because Petitioners requested that “‘Ruling 2’ . . .
be modified to avoid (among other things) a violation of Section
6.1.7 of the . . . CC&Rs,” the Association, as the prevailing party
on that issue, is entitled to a pro-rata share of its fees. The court
awarded 50 percent of those fees, i.e., $17,093.50. Petitioners
have not demonstrated error.
III. DISPOSITION
The amended judgment confirming the final arbitration
award and granting the Association a pro-rata share of its
attorney fees is affirmed. The Association shall recover its costs
on appeal, along with a pro-rata share of its attorney fees on
appeal pursuant to Civil Code section 5975, subdivision (c). The
matter is remanded to the trial court with directions to determine
a reasonable award for attorney fees in this appeal.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Kevin DeNoce, Judge
Benjamin Coats, Judge
Superior Court County of Ventura
______________________________
Silver and Arsht, Samuel J. Arsht and Marsha C. Brilliant,
for Plaintiffs and Appellants.
Pamela Abbott Moore and Nicholas J. Wolfsen, for
Defendant and Respondent.
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