Kaye v. Mount La Jolla Homeowners Assn.

• Decision Date: 07 October 1988
• Docket Number: D006162,Nos. D004174,s. D004174
• Citation: 252 Cal.Rptr. 67,204 Cal.App.3d 1476
• Court: California Court of Appeals Court of Appeals
• Parties: Samuel and Aline KAYE, Plaintiffs and Appellants, v. MOUNT LA JOLLA HOMEOWNERS ASSOCIATION, et al., Defendants and Respondents.

Page 67

252 Cal.Rptr. 67

204 Cal.App.3d 1476

Samuel and Aline KAYE, Plaintiffs and Appellants, v. MOUNT LA JOLLA HOMEOWNERS ASSOCIATION, et al., Defendants and Respondents.

Nos. D004174, D006162.

Court of Appeal, Fourth District, Division 1, California.

Oct. 7, 1988.

As Modified Nov. 4, 1988.

Michael Kaye, for plaintiffs and appellants

Christopher Welsh, Marilyn Moriarty, San Diego, Martha L. McGill and Coppo & Cosgrove, Del Mar, for defendants and respondents.

OPINION ON REHEARING

WIENER, Acting Presiding Justice.

Plaintiffs Samuel and Aline Kaye appeal a judgment of dismissal based on the five-year rule of Code of Civil Procedure section 583.310 and separately an order denying their motion to certify a defendant class of members of a condominium homeowners association. Consistent with the Legislature's directive that we liberally interpret exceptions to the five-year statute, we reverse the judgment of dismissal on the ground it was "impracticable" within the meaning of section 583.340 for the Kayes to proceed to trial while a writ petition which successfully challenged the trial court's summary adjudication of issues was pending in this court. At the same time, we reject several other arguments raised by the Kayes on issues made appealable by the dismissal judgment.

On the class certification appeal, the Kayes have conceded that joinder of individual members of the defendant Mount La Jolla Homeowners Association is necessary only because of the potential they might recover a judgment including punitive damages which could not be satisfied by resort to the assets of the Association itself. Because we believe there is no possibility of such an occurrence, we have concluded the trial court did not err in refusing to certify a defendant class.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Allegations

Plaintiffs Samuel and Aline Kaye own a condominium unit in the Mount La Jolla condominium development. Mount La Jolla consists of 234 contiguous condominium units. According to the covenants, conditions and restrictions (CC & Rs) which apply to the development, the individual unit owners have exclusive ownership of a "dwelling space" which is bounded by the "interior surfaces of the perimeter walls, floors, ceilings, windows and doors ..." of their unit. The CC & Rs specifically provide, "The following are not part of the units: bearing walls, columns, floors, roofs, foundations, central heating and other central services, pipes, ducts, flues, chutes, conduits, wires and other utility installations, wherever located, except their outlets when located within the units." With the exception of each unit's "dwelling To maintain and repair these common areas, the CC & Rs created the Mount La Jolla Homeowners Association (the Association). The Association is run by a board of governors elected by the homeowners. Individual unit owners have no authority to arrange for or make repairs to the common areas. This function is exclusively reserved to the board of governors.

space", each homeowner owns an undivided common fractional interest in the Mount La Jolla complex, which means virtually all of the physical substance of the development consists of jointly owned "common areas".

In 1977 the Kayes first noticed a crack in the concrete slab floor of the garage of their unit. When minor repair measures failed and the crack reappeared, the Kayes reported the problem to the board of governors. The board hired an engineering firm to inspect the Kayes' unit and four other condominiums which had experienced a similar problem. When the engineering report recommended soil testing to discover the exact cause of the subsidence problem, the board rejected the recommendation, dismissed the firm and hired a new engineer.

Over the next four years, the board together with its new engineer adopted tactics of inordinate delay, deception and intransigence with respect to the subsidence problem in an effort to postpone or avoid paying the substantial sums necessary to make adequate repairs. In early 1980, the Kayes offered to pay the costs of soil testing. Not only did the board refuse the offer, but it expressly forbade the Kayes from contracting for a soil study on their own.

In the meantime, the condition of the Kayes' unit continued to deteriorate. Cracks appeared in the walls and floor slabs. The walls buckled and bowed to the point that doors would no longer open and close. One end of the unit had sunk nearly three inches lower than the other end.

The soils study recommended in the first engineering report was finally performed under board authorization in the summer of 1981. The study revealed the condominium had been constructed on deep earthfill and that soil preparation defects were the likely cause of the subsidence problem. Even so, the Association proved unresponsive and this lawsuit was filed in November 1981 against the Association and 14 individuals who served on the board of governors during the relevant period (the director defendants). As late as March 1982 the Association's Construction Committee rejected its own engineers' recommendations regarding repairs as "an unnecessary and extreme measure of correction." Nonetheless, by the end of 1983, the Association had expended about $88,000 to make repairs to the Kayes' unit and there is evidence those repairs may be inadequate. The Kayes now seek recovery for diminution in the market value of their unit, lost rents and profits, emotional distress, miscellaneous expenses and punitive damages.

Procedural History

In their original complaint, the Kayes sought to allege among others a cause of action against the Association and its constituent homeowners ¹ for failing to provide lateral and subjacent support for their condominium unit. The Association successfully demurred to that cause of action in May 1982.

A trial date on the remaining causes of action was set for November 6, 1986, about two weeks before the five-year anniversary of the filing of the Kayes' complaint. On August 13, 1986, the Association and the 14 defendant directors moved for summary adjudication of issues seeking to eliminate the Kayes' claims for punitive damages. The original hearing date of September 23 was continued twice until October 17, on both occasions apparently at the Kayes' request. At the hearing, defendants' motion was taken under submission. Further argument was heard on October 24 at which time the court granted the defendants' motion, eliminating all punitive damage claims.

On November 6, the Kayes told the trial court they had elected not to go to trial on that date but instead were seeking a stay and extraordinary writ review of the summary adjudication order in this court. In response, the trial judge took the case off calendar. The Kayes filed their writ petition later that same day. No stay issued. On Friday November 21, the last business day before the five-year anniversary, this court in a nine page opinion issued a peremptory writ of mandate reversing the summary adjudication of issues as to the Association and five of the defendant directors. Mindful of the approaching five-year deadline, our opinion provided that it would be "final immediately, because the trial date must be set by November 24, 1986, to avoid the running of the five-year statute (Code Civ.Proc., § 583.310)."

On November 25, 1986, the Kayes filed a motion in the superior court to specially set the case for trial. In the papers supporting that motion, the Kayes argued that the five-year statute had been tolled on a variety of theories. Defendants responded that the five-year statute had run and no exceptions were applicable. The trial court agreed with defendants and dismissed the action.

DISCUSSION

Five-Year Statute

Code of Civil Procedure section 583.310 ² establishes the general rule that a civil action must be brought to trial within five years or it will be dismissed. (See also § 583.360.) The rule is subject to several specific statutory exceptions including an exclusion from the five-year period of any time during which "[b]ringing the action to trial, ... was impossible, impracticable, or futile." ( § 583.340, subd. (c); see generally Christin v. Superior Court (1937) 9 Cal.2d 526, 533, 71 P.2d 205.) The Law Revision Commission Comment to this section indicates the exceptions "must be interpreted liberally, consistent with the policy favoring trial on the merits." (16 West's Ann.Code Civ.Proc. (1988 pocket supp.) § 583.340, p. 47.) In determining whether it was "impossible, impracticable, or futile" to bring the action to trial for some portion of the five-year period, the court must consider "all the circumstances in the individual case, including the acts and conduct of the parties and the nature of the proceedings themselves. [Citations.] The critical factor in applying these exceptions to a given factual situation is whether the plaintiff exercised reasonable diligence in prosecuting his or her case. [p] ... Neither the courts nor litigants have any legitimate interest in preventing a resolution of the lawsuit on the merits if, through plaintiff's exercise of reasonable diligence, the goals of [the five-year statute] have been met." (Moran v. Superior Court (1983) 35 Cal.3d 229, 238, 197 Cal.Rptr. 546, 673 P.2d 216.) The question before us is whether it was "impracticable" within the meaning of section 583.340 for the Kayes to bring their action to trial during the pendency of the writ proceeding challenging the summary elimination of their punitive damage claims.

In Christin v. Superior Court, supra, 9 Cal.2d 526, 71 P.2d 205, the California Supreme Court established the rule that an interlocutory appeal may toll the running of the five-year statute, even if the trial court technically retains jurisdiction to try the matter, if it would be impracticable to proceed to trial pending resolution of the appeal. Earlier in the Christin case, the plaintiff had successfully appealed the trial...