Quail Lakes Owners Ass'n v. Kozina

• Decision Date: 08 March 2012
• Docket Number: No. C066835.,C066835.
• Citation: 139 Cal.Rptr.3d 389,2012 Daily Journal D.A.R. 4488,204 Cal.App.4th 1132,12 Cal. Daily Op. Serv. 3901
• Court: California Court of Appeals Court of Appeals
• Parties: QUAIL LAKES OWNERS ASSOCIATION, Plaintiff and Respondent, v. Vladimir F. KOZINA, Defendant and Appellant.

12 Cal. Daily Op. Serv. 3901

139 Cal.Rptr.3d 389

2012 Daily Journal D.A.R. 4488

204 Cal.App.4th 1132

QUAIL LAKES OWNERS ASSOCIATION, Plaintiff and Respondent,

v.Vladimir F. KOZINA, Defendant and Appellant.

No. C066835.

Court of Appeal, Third District, California.

March 8, 2012.

Bruce Ray Inman, Inman Law Group, LLP, and Laurie S. Poole, Peters & Freedman, LLP, Encinitas, for Plaintiff and Respondent.

Paul A. Kozina, Law Offices of Mayall, Hurley, Knutsen, Smith & Green, Stockton, for Defendant and Appellant.

DUARTE, J.

Quail Lakes Owners Association (the Association) filed a petition seeking an order modifying its governing laws to reduce a supermajority voting restriction, a special proceeding authorized by Civil Code section 1356 (§ 1356). The trial court conducted a hearing and granted the Association's amended petition. Objector Vladimir F. Kozina (Kozina) timely filed this appeal.¹

On appeal, Kozina contends the manner of notice of the hearing violated due process, and the trial court abused its discretion in granting the amended petition. We disagree and shall affirm.

INTRODUCTION

The organic charters for many older homeowner associations required supermajority votes for amendments, but voter apathy and other reasons often make achieving such a supermajority impractical. (See Blue Lagoon Community Assn. v. Mitchell (1997) 55 Cal.App.4th 472, 477, 64 Cal.Rptr.2d 81; 2 Sproul & Rosenberry, Advising Cal. Common Interest Communities (Cont.Ed.Bar 2011) Amending the Governing Documents, § 9.30, p. 660.) Section 1356 creates a court procedure for lowering the supermajority requirement.

Section 1356, “part of the Davis–Stirling Common Interest Development Act (the Act), provides that a homeowners association, or any member, may petition the superior court for a reduction in the percentage of affirmative votes required to amend the [governing documents] if they require approval by ‘owners having more than 50 percent of the votes in the association....’ [Citation and fn.] The court may, but need not, grant the petition if it finds all of the following: Notice was properly given; the balloting was properly conducted; reasonable efforts were made to permit eligible members to vote; ‘[o]wners having more than 50 percent of the votes ... voted in favor of the amendment’; and ‘[t]he amendment is reasonable.’ ” ( Peak Investments v. South Peak Homeowners Assn., Inc. (2006) 140 Cal.App.4th 1363, 1366–1367, 44 Cal.Rptr.3d 892.)

PROCEDURAL BACKGROUND

On March 19, 2010, the Association filed its petition, alleging an inability to make prudent changes to its “Covenants, Conditions and Restrictions” (CCRs), despite majority support among the homeowners, due to a supermajority requirement. The original and proposed CCRs were attached. The petition alleged that in a 2009 election, of 1,958 “membership votes,” 1,409 votes were cast, of which 1,209 voted in favor of the new CCRs.

On June 17, 2010, an objection was filed, in part alleging the defeat of the new CCRs in the prior election was due to a “strong campaign in opposition” based on the unreasonableness of the proposed governance changes. The tenor of the objection was that there was a rift in the community; however, Kozina was the only objector. The objection contended the evidence attached to the unverified petition was not properly authenticated, and contended the manner of notice was insufficient to satisfy due process.²

On June 23, 2010, Thomas G. Murphy, the Association's manager, filed a declaration responding to the opposition. Murphy's declaration, with attachments, tended to show that the new CCRs had been crafted with notice and opportunity for comment, but acknowledged an apparent rift within four sub-associations, one of which, the “Neighborhood” association, declined to participate in crafting the new CCRs.

On July 1, 2010, the petition was denied without prejudice for lack of evidence. The petition was not verified, and the Association's counsel did not attach any declarations to it, as is recommended. (2 Sproul & Rosenberry, supra, § 9.34, p. 664.) The trial court explicitly noted these deficiencies, and declined to allow live testimony to cure them. The court set dates for the filing of an amended petition, opposition and reply, as well as date for hearing on the amended petition. The trial court made clear that it wanted adequate time and attention given to noticing the membership.

The Association filed an amended petition on July 23, 2010. No supporting declarations were attached, but it was verified by the Association president, Penelope A. Calvird, who declared under penalty of perjury: “I have read the foregoing Amended Petition. The matters stated in the foregoing Amended Petition are true and correct of my personal knowledge.”

On August 5, 2010, the trial court reaffirmed by written order the hearing date previously set for September 2, 2010, and ordered notice be given to the homeowners on or before August 13, 2010. The order required any written opposition to the amended petition be filed by August 17, 2010.

On August 16, 2010, Kozina filed opposition to the amended petition. His objections focused on what he characterized as insufficient notice permitted by the trial court's August 5, 2010 order. Despite multiple references to the “membership,” the opposition was in Kozina's name only. However, the opposition also included declarations from three homeowners stating they had not received notice in time to review the documents and consult counsel. ³ The opposition declined to “address procedural and substantive deficiencies” in the amended petition, “reserving expressly the right to submit” additional briefing.⁴

At the September 2, 2010, hearing on the amended petition, the trial court once again declined the Association's counsel's offer to present live testimony. Kozina conceded the Association's president had verified the amended petition, but argued she had not stated her competence or authenticated the documents attached to the amended petition.

On September 30, 2010, the trial court granted the amended petition in a written ruling, and directed counsel to prepare a further order. After considering a proposed order and opposition, the trial court signed a final order granting the amended petition on October 19, 2010. Kozina timely appealed therefrom.

DISCUSSION

IDue Process Claim

Kozina contends the trial court's order setting forth the manner of notice of and briefing for the September 2, 2010, hearing violated due process, pointing out the order permitted notice by mail as late as August 13, the opposition was due on August 17, and a weekend intervened. Kozina contends this order unduly compressed the time for homeowners to object.

But Kozina filed a timely objection that was considered by the trial court, although he chose to address only notice. Nowhere in his briefing does Kozina contend that he was unable to articulate all of the arguments he wanted to make, or unable to muster the evidence he wanted the trial court to consider, due to time constraints. He has not shown or even attempted to show that he was prejudiced by the time limits set by the briefing order. We may not reverse a judgment for a procedural error absent a miscarriage of justice. (Cal. Const., art. VI, § 13; Code of Civ. Proc., § 475; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833, 16 Cal.Rptr.2d 38.) Absent an explicit argument that a procedural error caused prejudice, we are under no obligation to address the claim of error. ( Paterno v. State of California (1999) 74 Cal.App.4th 68, 105–106, 87 Cal.Rptr.2d 754.) Therefore we reject Kozina's claim.

Kozina argues other homeowners might have been prejudiced by the briefing order. However, we agree with the Association that Kozina lacks standing to assert the due process rights of other homeowners.

“ ‘[A] plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’ ” ( Independent Roofing Contractors v. California Apprenticeship Council (2003) 114 Cal.App.4th 1330, 1341, 9 Cal.Rptr.3d 477 [association could not raise purported legal rights of prospective members]; see Johnson v. Department of Social Services (1981) 123 Cal.App.3d 878, 883, 177 Cal.Rptr. 49; cf. Horn v. County of Ventura (1979) 24 Cal.3d 605, 619–620, 156 Cal.Rptr. 718, 596 P.2d 1134 [although Horn alleged notice to other landowners had not been adequate before he bought his property, he was not seeking to vindicate their rights, but “his own claim to due process”].) The general rule that a party cannot represent the interests of others “is not confined to plaintiffs; it may also arise when one seeks to defeat a claim by asserting the paramount rights of a third person.” ( Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 991, 103 Cal.Rptr.3d 426.) ⁵

In his reply brief, Kozina claims he has “associational” standing, and likens this case to that of a derivative action filed on behalf of all shareholders of a corporation. We are not persuaded.

Kozina's associational standing claim is predicated on the following rule: “ ‘[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’ ” ( Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005) 132 Cal.App.4th 666, 673, 33 Cal.Rptr.3d 845.)

Kozina overlooks the fact that the Association is the de facto representative of the homeowners. Kozina did not and does not purport to represent a subgroup within the Association. Instead, the record shows he is attempting to assert the rights of people who allegedly would have objected to the petition if provided sufficient...