Alfaro v. Community Housing Improvement System & Planning Assn., Inc.

• Decision Date: 18 March 2009
• Docket Number: No. H031127.,H031127.
• Citation: 171 Cal.App.4th 1355
• Court: California Court of Appeals Court of Appeals
• Parties: PATRICIA GONZALEZ ALFARO et al., Plaintiffs and Appellants, v. COMMUNITY HOUSING IMPROVEMENT SYSTEM & PLANNING ASSOCIATION, INC., et al., Defendants and Respondents.

171 Cal.App.4th 1355f

PATRICIA GONZALEZ ALFARO et al., Plaintiffs and Appellants, v. COMMUNITY HOUSING IMPROVEMENT SYSTEM & PLANNING ASSOCIATION, INC., et al., Defendants and Respondents.

No. H031127.

Court of Appeal of California, Sixth District.

March 18, 2009.

[Modification of opinion (171 Cal.App.4th 263; ___ Cal.Rptr.3d ___), upon denial of rehearing.]

THE COURT. — IT IS ORDERED that the opinion filed herein on February 19, 2009, be modified as follows, and the petition for rehearing is DENIED:

1. On page 1, first sentence [171 Cal.App.4th 270, advance report, 1st par., line 1], the number "22" is changed to "23" so the sentence reads:

Plaintiffs are owners of 23 single-family residences¹ in the Moro Cojo inclusionary housing development projects (sometimes "the Projects") outside of Castroville in the County of Monterey.

2. On page 1, footnote 1 [171 Cal.App.4th 270, advance report, fn. 1], beginning "The 38" is deleted and the following footnote is inserted in its place:

¹ The 40 plaintiffs are named individually post (beginning on p. 5) in the text that summarizes their grant deeds.

We have modified our original opinion to increase the number of plaintiffs. We grant plaintiffs' implicit requests, filed after our original opinion, to augment the record with a reporter's transcript showing that the trial court had consolidated another action with this one and to take judicial notice of another grant deed.

3. On page 2, line 12 [171 Cal.App.4th 271, advance report, 1st par., line 12], the number "22" is changed to "24" so the sentence reads:

For the reasons stated below, we will dismiss the appeal as to the County of Monterey and will reverse the judgment after concluding that plaintiffs' properties are subject to a valid affordable housing deed restriction, that the statutes of limitations have lapsed as to claims by 24 plaintiffs of fraudulent

[171 Cal.App.4th 1355g]

and negligent nondisclosure and breach of implied contracts mostly against CHISPA, and that the same claims by the other 16 plaintiffs against South County remain viable.

4. On page 5, line one of the second full paragraph [171 Cal.App.4th 273, advance report, 3d full par., line 1], the number "11" is changed to "12"; and the number "16" is changed "18"; also, in the same paragraph on line 3 [171 Cal.App.4th 273, advance report, 3d full par., line 3], insert after footnote 3 and before the word "June" the following "May 31, 2000, Napolean and Ligaya Ducusin; June 5, 2000;" so the paragraph reads:

CHISPA issued 12 grant deeds to 18 plaintiffs on the following dates: January 31, 2000, Jose and Maria Marin; May 11, 2000, Jennifer Cruz; May 12, 2000, Salvador Sanchez; May 31, 2000, Napolean and Ligaya Ducusin; June 5, 2000, Efrain and Amparo Ochoa; July 12, 2000, Celestino Salazar; July 13, 2000, Juan and Silvia Palacios; July 14, 2000, Lorena Maravilla; July 17, 2000, Estee Hurley; December 6, 2000, Howard Carter; February 12, 2001, Raul and Yolanda Perez; June 19, 2001, Panfilo and Isaura Barbaso.

5. On page 6, footnote 7 [171 Cal.App.4th 274, advance report, fn. 7], delete the third paragraph beginning "There was a pending stipulation" and ending "in the record."

6. On page 11, line 4 [171 Cal.App.4th 277, advance report, 2d full par., line 9], insert after the number "906" add as footnote 12 the following footnote, which will require renumber of all subsequent footnotes:

¹² Code of Civil Procedure section 906 provides in part: "Upon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party. . . . The respondent, or party in whose favor the judgment was given, may, without appealing from such judgment, request the reviewing court to and it may review any of the foregoing matters for the purpose of determining whether or not the appellant was prejudiced by the error or errors upon which he relies for reversal or modification of the judgment from which the appeal is taken."

7. On page 28, line 5 of the third full paragraph [171 Cal.App.4th 291, advance report, 1st full par., lines 5 & 6], beginning "This statement of" the "24" is changed to "25" so the sentence reads:

However, as noted above (see fn. 17, ante at p. 25), plaintiffs have apparently abandoned their earlier claims of intentional and negligent misrepresentations.

[171 Cal.App.4th 1355h]

8. On page 37, the first full paragraph [171 Cal.App.4th 297, advance report, last par.], beginning "In demurring to the original" is deleted and the following paragraph is inserted in its place:

In demurring to the original complaint, CHISPA asserted, "the third cause of action, which sounds in fraud, is barred by the statute of limitations. The statute of limitations for a fraud based case of action is three years. (Code Civ. Proc., § 338, subd. (d).)" "Here from the face of the complaint, it is clear that the action was brought more than three years after . . . defendants' alleged failure to disclose the deed restriction." South County joined in this demurrer. The ruling sustaining the demurrers did not specifically rely on the statute of limitations. CHISPA reiterated this argument in its demurrer to the first amended complaint's allegations of fraudulent (10th cause of action) and negligent (11th cause of action) misrepresentation. South County did not assert the three-year limitations period in its written demurrer to the first amended complaint, but it did orally at the hearing on its demurrer. The ruling otherwise sustaining the demurrers overruled them on the statute of limitations grounds. CHISPA did not again reiterate its statute of limitations defense in demurring to the second amended complaint. South County has invoked the same statute of limitations in its demurrer to the second amended complaint and on appeal, although the demurrer directed this argument only to the 10th cause of action alleging negligent nondisclosure.

9. On page 40, footnote 22 [171 Cal.App.4th 300, advance report, fn. 22], beginning "This group includes" is deleted and the following footnote as renumbered is inserted in its place:

²³ In their petition for rehearing, plaintiffs who received grant deeds containing a reference to the deed restriction on resale price offer a new excuse for failing to discover the nature of this restriction. Those plaintiffs who are illiterate in English assert that "no person can receive actual notice of anything from a document written in a language the...