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Affan v Portofino Cove Homoowners Assoc.

Case No. G041379 (CA Dist. 4 Ct. App., Div. 3, Oct. 29, 2010)

Plaintiffs Akil and Cenan Affan, husband and wife homeowners in a condominium complex, sued their homeowners association and its managing agent for damages after their unit was flooded with sewage. The Affans' complaint alleged that defendants breached their duty to maintain and repair the common area plumbing, which resulted in a sewage blockage that caused the flooding. According to the complaint, not only did defendants fail to prevent the sewage eruption through proper maintenance of the common area plumbing, but they also failed to repair and remediate the resulting damage and contamination within the Affans' unit.

Based on the “judicial deference” standard applicable to the ordinary maintenance decisions of homeowners associations (Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249 (Lamden)), the trial court entered judgment against the plaintiffs on all but one cause of action. The court found the homeowners association liable for breaching an equitable servitude to indemnify the Affans for their casualty loss, and awarded the Affans their remediation costs of $33,800 as damages. The court denied all parties' requests for attorney fees and costs. Both the Affans and the homeowners association appealed.

We conclude the trial court erred in applying the Lamden rule of deference. The homeowners association failed to establish the factual prerequisites for applying the judicial deference rule. Additionally, the managing agent of the homeowners association has no claim to judicial deference under Lamden. Consequently, we reverse the judgment in part and remand for further proceedings in accord with the views expressed in this opinion. In the unpublished portion of this opinion, we affirm the damage award for plaintiffs on the equitable servitude claim.

I

BACKGROUND FACTS AND PROCEDURE

Recurrent Plumbing Problems

In 1986, Akil and Cenan Affan bought unit 107 in the Portofino Cove Condominiums as a vacation home. They live in Arizona and usually spend a few weeks a year vacationing in their condo. Since 1999, the Affans experienced a series of plumbing backups in their unit. From 1999 to 2005, every time they arrived at their condo for a visit, they found sewage residue in their kitchen sink or in the sink and tub in their master bathroom. This happened nine times in that six-year span.
 

 

Judge(s): Richard M. Aronson
Jurisdiction: California Court of Appeals, Fourth District
Related Categories: Property
 
Circuit Court Judge(s)
Richard Aronson
Richard Fybel
William Rylaarsdam

 
Trial Court Judge(s)
Robert Monarch

 
Appellant Lawyer(s) Appellant Law Firm(s)
Sivi Pederson Allen B. Weiss & Associates
Allen Thomas Allen B. Weiss & Associates
Allen Weiss Allen B. Weiss & Associates
Jerome Jackson Law Office
Doran Richart Law Office

 
Appellee Lawyer(s) Appellee Law Firm(s)
Jay Fullman Jay D. Fullman A Professional Corporation

 

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blocked the main lines. he concluded that rescue rooter did not clean the pipes when the affans filed their complaint against the association and cleaning effort and sought to hold the association liable for its 10-year failure to address process. the association failed to present evidence the board weighed the costs and maintenance of the drain lines serving the building. instead ruled the defendants had no liability based on the rule of judicial deference. [lamden applies only "to ,,ordinary decisions involving repair and maintenance actions"; nine sewage eruptions by simply hiring a plumber to snake their drain. 21 association, the trial court erred in concluding the lamden rule of deference applied to shield it from liability. decide to extend judicial deference to an associations choice of inaction in that narrow extraordinary situation (e.g., major damage from an earthquake) or one not pertaining to make the necessary repairs because the association had not yet investigated the cause of upon discovering each sewage backup, the affans reported the problem to 6 the trial court entered judgment on october 22, 2008, but a week later italics.) an obligation to maintain and repair" common areas. (ibid.) the record contains no 6 and then the insurance would fix it[.]" brown further testified that a coverage dispute interior of any individual residence . . . shall be made by and at the individual expense of part, as follows: "with the exception of any casualty or damage insured against by the substantial evidence, contradicted or uncontradicted, which will support the judgment. disposition with cc&rs and thus beyond boards authority]; see also ritter & ritter, inc. pension v. village green owners assn. (1986) 42 cal.3d 490, 499 [condominium association held should defer to the boards authority and presumed expertise." (lamden, supra, aronson, j. g041379 decision contains no explicit findings concerning the judicial deference rule and instead held liable for injuries to tenant caused by contractors negligent roof repair]; frances t. justice pursuant to art. vi, 6 of the cal. const.) reversed in part, affirmed in part, and the homeowners association liable for breaching an equitable servitude to indemnify the trial court erred in refusing to apply the judicial deference rule to this cause of action. treat the infestation, the association failed to maintain and repair the developments 14 with rescue rooter, a plumbing contractor, to perform annual, "routine" maintenance on duty. causation and damages, for instance, are issues of fact that remain to be on may 3 constituted a substantial factor in causing the sewage eruption on may 14. if the association a duty to maintain and repair the common areas, does not specify how the "unless otherwise provided in the declaration of a common interest development, the entered judgment against the plaintiffs on all but one cause of action. the court found in answering that question, the supreme court rejected the approaches of however, is unavailing as an alternative ground for affirming the judgment for either association is responsible for repairing, replacing, or maintaining the common areas . . . ." association over a maintenance decision that meets the enumerated criteria. (see work," and ",,seriously consider[ed]" fumigation, a treatment method for which it 3 in an unusual move, both sides designated hoffman as an expert witness. 1 when referring to the spouses individually, we use their first names. we on may 3, 2005, rescue rooter conducted a hydro-jet cleaning of the main affirmative defense. (ekstrom, supra, 168 cal.app.4th at pp. 1122-1123 ["just as the ponder whether it might save money by hiring a plumber to regularly maintain the main it is important to note the narrow scope of the lamden rule. it is a rule of inaction was not the result of any deliberative process. the property manager for the complex. they also consistently reported each plumbing determined. on remand, the trial court must determine whether the plumbers negligence the floors of the master bathroom and adjoining bedroom. supra, 21 cal.4th at p. 253), because no one testified about the boards decisionmaking the judicial deference rule to shield both the association and huntington west from problems. the board directed brown to develop a "scope of work" for a regular huntington west had become the associations managing agent in early same to its former condition, as promptly as practical." (cc&rs, 10.01) based on incurred. the association contends evidence of insurance is essential to support the 754-755, as example of where associations decision is not entitled to judicial deference "insulate . . . boards decisions from judicial review," citing fountain valley chateau e. denial of attorney fees carpet pad, damaged baseboard and drywall, and steam cleaned and sanitized surfaces, blockage occurred in a lateral drain line running through the parking garage beneath the the owner of the residence so damaged." (italics added.) loss of use and emotional distress because the cc&rs limited the associations liability 9 section 10.03 of the cc&rs, "interior damage," provides, in pertinent appeal from a judgment of the superior court of orange county, robert maintenance was an exercise of its "discretion . . . to select among means for discharging caused by associations negligent maintenance of common area].) rooters ineffectual hydro-jetting on may 3, 2005, had no discernable effect on the main lamden, supra, 21 cal.4th at p. 269 [rejecting assertion that judicial deference rule will boards"].) where lamden involved the propriety of an association boards choice in reviewing the evidence on appeal, we must resolve all conflicts in favor merits judicial deference. there is no such showing in the case before us. trial, she waived damages and sought only an injunction and declaratory relief. their burden of proving the lamden judicial deference rule applies. we limit our review 10 section 1354, subdivision (a), provides: "the covenants and restrictions in chambers for an off the record discussion. upon returning to the courtroom, the court (lamden, supra, at p. 255.) the trial court concluded the boards deliberative process situation. brown met with the associations casualty insurance adjuster to find out "what the repeated backups nor taken any steps to prevent a recurrence. simply allowed the pest problem to fester, heedless of the risk posed to individual units. american broadcasting co. (1998) 68 cal.app.4th 624, 632 (winograd).) resulted in a sewage blockage that caused the flooding. according to the complaint, not association is responsible to repair any destroyed property, it must "restore and repair the against the affans not on all claims, but only on the negligence and nuisance causes of associations decision to spot treat rather than fumigate. (lamden, supra, 21 cal.4th at november 24, the trial court entered a second amended judgment that corrected another ground floor unit from a shared sewer line is to "get a video inspection or . . . do a regular intend no disrespect but simply aim for clarity and convenience. (in re marriage of the sufficiency of the evidence to support the judgment. this argument also lacks merit. association is liable to the affans for damages of $33,800 for breach of an equitable simply concluded as a matter of law, "[b]ased upon lamden," that defendants were not association, of negligence or a breach of the cc&r[]s with respect to the contractual obligation to of the project improvements wherever located[.]" and placed air scrubbers, dryers, and dehumidifiers throughout the unit. cc&rs required the association to repair the damage to the interior of the affans unit.9 the may 14, 2005 plumbing disaster hoffman testified a blockage of one of the main sewer lines serving the 7 regard for the best interests of the community association and its members" (lamden, approximately $34,000. huntington west on october 12, 2005, the defendants had not done any additional repair repair and maintenance actions"].) a. the rule of judicial deference of the judgment, and draw all legitimate and reasonable inferences to uphold the it had "signed off on a maintenance agreement" for the main plumbing lines at the connection with their duty to maintain the common areas of the project." further, the in the immediate aftermath of the damage to the affans condominium, judicial deference is due only to the ordinary maintenance decisions of homeowners cause of the numerous drain backups into the affans unit. hoffman testified as a association is to act, just that it should." (lamden, supra, 21 cal.4th at p. 270, original backup [into a ground floor unit in a stacked-unit complex] in a year, there was some underground garage. two of the affans first floor neighbors are members of the board associations recognized in lamden, supra, 21 cal.4th 249. the court stated, "based upon onsite property manager, kevin brown, to report the problem. akil told brown, an in response, huntington west hired rescue rooter to snake the bathroom appealed from all three judgments. remanded. 10 2004. brown testified that in january or february of 2005, the association began to drain lines, rather than continually responding in a "piecemeal" fashion to backup insurance for the affans loss. brown testified he met with an adjuster from the and gave primacy to the best interests of the association and its members. the present inure to the benefit of and bind all owners of separate interests in the development. did nothing for years to address the condominium developments termite infestation and association board members assured them the association would "take care" of the stacked units. this was a common area that the cc&rs obligated the association to maintain.4 hoffman diagnosed this blockage by using a camera to conduct a "video even if we could view the associations failure to implement any equitable servitude claim portofino cove homeowners 19 than the more easily-met business judgment test. (lamden, supra, 21 cal.4th at p. 256.) may 14 sewage eruption would not have occurred. but, of course, the associations arguing both liability and damage issues. the court subsequently entered judgment judgment if possible. when a judgment is attacked as lacking sufficient evidence, the const., inc. v. titan elec. corp. (2007) 146 cal.app.4th 1474, 1477 (kemp).) to that & profit plan v. the churchill condominium assn. (2008) 166 cal.app.4th 103, 122 hoffman determined that debris, accumulated over a 10-year period, applies equally to both defendants. it does not, because the two defendants are not maintain the premises." then four years later, in early 2005, discussed whether annual maintenance of the main snake drains in individual units rather than clear main drain lines. finally, the and eventual termite reinfestation." (ibid.) thus, in lamden, ample evidence award attorney fees to either party. that part of the judgment is reversed. and reported that the plumber who responded to the latest call had recommended annual association contractually liable for breaching an equitable servitude, created by the condominiums as a vacation home.1 they live in arizona and usually spend a few substantial evidence is evidence ",,of ponderable legal significance, . . . reasonable in at p. 632.) because huntington west is merely the managing agent of a homeowners d. substantial evidence supports the judgment for plaintiffs on the breach of recurrent plumbing problems huntington west does not mention lamden in its brief, but instead relies solely on the 143 cal.app.4th 333, 347-348 [prejudicial error requires reversal]; cal. const. art. vi, 2. the association failed to establish the factual prerequisites for applying power of the appellate court begins and ends by determining whether there is any the main plumbing lines. weeks a year vacationing in their condo. since 1999, the affans experienced a series of actions of a homeowners association. the supreme courts precise articulation of the we conclude the trial court erred in applying the lamden rule of deference. negligence and private nuisance based on its failure both to prevent and to clean up the jay d. fullman for defendant and respondent huntington west properties, 4 section 2.07 of the cc&rs sets forth the associations duty as to "repair investigative work, weighed the costs and benefits of both treatment methods, including common areas as required by the cc&rs and the civil code. (id. at pp. 254-255.) at lines and resulting sewage eruption do not implicate any decision by the association, but 17 simply states, "based upon lamden, defendants were not negligent nor have they (western states petroleum assn. v. superior court (1995) 9 cal.4th 559, 571.) in the court of appeal of the state of california figure out what direction they should go in." the casualty was one the association should have insured against, section 10.03 of the v. liable for negligence, negligence per se, breach of the cc&rs, or a private nuisance. judicial deference doctrine, either by way of pretrial motion or at trial. the statement of evidence the board selected "among means" when it responded to each of the affans d. monarch, judge. (retired judge of the orange super. ct. assigned by the chief fumigation because of concerns about "possible problems entailed by fumigation, mechanical boring, rather than simply trying to hydro-jet the lines. according to clerical error. the second amended judgment clarified that huntington west prevailed nonmaintenance of the main plumbing lines was the result of a good faith decision, based association consulted with contractors and pest control experts for several years in when the kitchen sink backed up on april 21, 2005, akil telephoned the resulting from nuisance." because association acted in the "absence of . . . good faith"]; see also ekstrom v. 5 nuisance that the association failed to abate. the affans sued huntington west only for of directors and also experienced similar sewage problems. liability for the affans damages. because this issue effectively dictates the handling of allen b. weiss & associates, allen b. weiss, allen l. thomas, and sivi unit was uninhabitable. repeated backups until it hired hoffman to do so in 2008. context, if the choice stemmed from deliberations that carefully weighed the alternatives c. applying the judicial deference rule constituted prejudicial error affans unit and the two units stacked above it caused the repeated sewage backups. the affans master bathroom sink, tub, and vanity closet. the sewage also overflowed onto o p i n i o n incurred in the sewage overflow.10 . . . a respondent argues for affirmance based on substantial evidence, the record must judgment in part and remand for further proceedings in accord with the views expressed liable to the affans for breach of an equitable servitude, and awarded the affans $33,800 announced: "the record will reflect the defense rests. [] both defendants rest . . . (all further statutory references are to the civil code unless otherwise noted.) in its statement of decision, the trial court explained it reached its decision decision made by the association. (see lamden, supra, 21 cal.4th at p. 253 [rule of assuring that pipes are "operating and functioning safely" after repeated backups into a breach of the cc&rs (the covenants, conditions, and restrictions governing the akil affan et al., of remediation and restoration of the unit $33,800. the court denied their claim for hoffman, had rescue rooter properly cleaned the pipes on may 3, 2005, the may 14 association and its members), enforcement of equitable servitude, negligence per se, lines. less than two weeks later, on may 14, a major sewage backup damaged the adjudicating [the homeowners] claims, under what standard should a court evaluate the stipulated that rescue rooter negligently performed the maintenance on the main lines. evidentiary support for the trial courts implied finding the association had casualty in 1986, akil and cenan affan bought unit 107 in the portofino cove these three cc&r provisions, the court found the association breached an equitable thus, the evidence showed the association had casualty insurance for the flood damage; plumbing expert for plaintiffs at trial.3 sewage eruption. in lamden, supra, 21 cal.4th 249. contract" to "hydro[-]jet" a main line, which meant blasting the lines with a high-pressure they did," and entered judgment for the association. (id. at p. 256.) affans for their casualty loss, and awarded the affans their remediation costs of $33,800 the common area plumbing, but they also failed to repair and remediate the resulting to hire rescue rooter to clean the main lines was inconsequential because rescue their master bathroom. this happened nine times in that six-year span. damage, leading the two insurers to dispute which of them was liable for the affans loss. 3 smith (1990) 225 cal.app.3d 469, fn. 1.) associations inaction into perspective, it would be as if the association board in lamden entered an amended judgment to correct a clerical error: the original judgment was lamden ",,gives no direction" where lawsuit challenges ",,a board action involving an 8 in this, the association was unlucky. according to plumbing expert here, the trial court did not require any particular showing to invoke the sued the association for its 10-year failure to undertake any maintenance of the the homeowners association failed to establish the factual prerequisites for applying the with the presentation of evidence concluded, the parties submitted briefs turning to whether the trial court properly applied the rule of judicial maintenance decisions of homeowners associations (lamden v. la jolla shores however, that the rule applies only in limited circumstances. the court described those property" or common areas as including "all gas, water and waste pipes, all sewers, . . . the "possible problems entailed by fumigation," such as "relocation costs, lost rent, in this opinion. in the unpublished portion of this opinion, we affirm the damage award fumigate . . . for termites[.]" (lamden, supra, 21 cal.4th at p. 253.) the plaintiff, an the association in its cross-appeal asserts two arguments for reversing the 7 the association unsuccessfully tries to turn this burden of proof on its property manager suggested that akil attend the association board meeting the next day given our holding that the prerequisites for applying the lamden rule are unmet here, we negligence cause of action because the association had a nondelegable duty to maintain 2 civil code section 1364, subdivision (a), provides, in pertinent part: based on the "judicial deference" standard applicable to the ordinary fybel, j. affans condo. kitchen sink debris and grease from the upstairs units erupted in the judicial deference rule. it follows that we must reverse that part of the judgment entered 2005 decision to begin annual maintenance. does that decision trigger application of the stream of water. but no evidence showed the board ever contracted for that maintenance in lamden, a condominium development experienced a persistent problem backup into his unit was "a very chronic situation," and that he and his wife had maintenance of those developments." (lamden, supra, 21 cal.4th at pp. 270-271.) 150 cal.app.3d 870, 873.) properly on may 3, 2005, and that these pipes never had been cleaned properly. in to address the repeated first floor backups. he explained that "if there was more than one between alternative methods of dealing with a persistent termite infestation, the affans and replace the common property . . . to assure maintenance of the common property certified for partial publication* breached the cc&r[s.]" from this, we infer the trial court found the defendants met defendant and appellant; arose later because the association changed insurers after the affans incurred their and maintenance" of the common areas: "[t]he association shall . . . maintain, repair the california supreme court granted review to answer the following question: "in * * * damages, an injunction, and declaratory relief. she alleged that in opting only to spot at trial, the association failed to establish the factual prerequisites for we concur: 21 cal.4th at p. 265.) that point, the association hired thomas hoffman, a forensic plumber, to investigate the 4 upon reasonable investigation. accordingly, the trial court erred in allowing the damage and contamination within the affans unit. competence, over that of courts, possessed by owners and directors of common interest affans and the homeowners association appealed. condominium association (the association), the common interest association for the maintenance issues. the trial courts erroneous application of the judicial deference rule had both the appeal and cross-appeal challenge the trial courts decision not to developments to make the detailed and peculiar economic decisions necessary in the substantial evidence rule to support the judgment. (see winograd, supra, 68 cal.app.4th board was confident the adjuster would "look at the unit, tell us what needed to be done. was correct to defer to the boards decision" to spot treat rather than fumigate because 1. huntington west has no claim to judicial deference under lamden both the affans and the association appealed from the judgment6 and from its authority under relevant statutes, covenants and restrictions to select among means for the parties agreed to a bench trial. during the trial, the association filed 10/29/10 including relocation costs, lost rent, concerns about pets and plants, human health issues over the next few months, the affans received various bids for the emergency clean up company extracted waste water, removed and disposed of the carpet, the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall needed to be done," but apparently the association encountered a "snag" with its insurer attorney fees, available to the prevailing party under the cc&rs and 1354, subd. (c), area, it was the "type of risk" against which the association was obligated to obtain negligence, and private nuisance. the essence of their claims was that the association the plumbing expert's opinion 9 drain and retained emergency service restoration, inc., to clean up the spill. the of proving the facts needed to support this affirmative defense. backups, the association took no action to maintain the lines until april 2005. to put the that management send a "master plumber" to investigate the cause of the backups. against the affans on all causes of action save one: the trial court held the association board, upon reasonable investigation, in good faith and with regard for the best interests (super. ct. no. 05cc11160) 20 judicial deference. the contention lacks merit. the association cannot dodge its burden nondelegable duty, assuming that rescue rooters negligence is established by backup problems in 1999, and the association switched to a new insurer in 2000, a both lower courts and announced a new rule of "judicial deference" to the ordinary there is some documentary evidence suggesting the association earlier maintenance on the lines." to discuss the issue, which he did. after listening to akils complaint, the board told him judicial deference doctrine? it does not. as events unfolded, the associations decision repair the condominiums common areas, including the sewer pipes, and the the trial court applied a ",,business judgment test" in evaluating the complex. according to trial testimony, the association entered into a five-year contract for plaintiffs on the equitable servitude claim. analysis of the record suggests the contrary, the rule should not be invoked." (id. at the affans urge this court to order entry of judgment in their favor on the in conclusion, the record contains no evidence showing the associations lamden, defendants were not negligent nor have they breached the cc&r[]s in evidence, whether the defendants failure to investigate the cause of the repeated first deference in the case before us, we begin by noting the judicial deference rule is an complained in a letter to the association, but had received "no answer." he requested complex. after each reported backup, the association manager hired a plumber to snake g. pederson for plaintiffs and appellants. rule makes clear that the rule of deference applies only when a homeowner sues an the judicial deference rule condominium complex, sued their homeowners association and its managing agent for to decisions of homeowner association boards articulated in lamden"].) thus, the the testimony of huntington west employee kevin brown supplies associations board of directors. in the letter, she complained of the persistent problem the association eventually hired hoffman to clean the main lines in may finally, the court cited the requirement in section 10.01 of the cc&rs that where the only did defendants fail to prevent the sewage eruption through proper maintenance of the trial court based its ruling that the association breached an equitable the affans complaint stated five causes of action against the association: association to invoke lamden's judicial deference rule. of the community association and its members, exercises discretion within the scope of the trial and judgment as the court explained in kemp, supra, 146 cal.app.4th 1474, "[w]here association did not meet its burden of proving its "decision" not to engage in affans hired a remediation company to repair and restore their condo at a cost of nor was there evidence the association acted "in good faith and with expressed in this opinion. the affans are entitled to costs on appeal. condo for a visit, they found sewage residue in their kitchen sink or in the sink and tub in common area."5 overcome. [citation.] . . . ,,the [substantial evidence] rule thus operates only where it end, huntington west urges us to affirm the judgment because substantial evidence rather reflect the associations abiding indecision and inattention to plumbing clubdominium homeowners assn. (1999) 21 cal.4th 249 (lamden)), the trial court stands in stark contrast to the evidence presented in lamden. there, the homeowners both drains in individual units), rather than servicing the main drain lines for the building. (seltzer v. barnes (2010) 182 cal.app.4th 953, 969 [defendant bears burden of proof on associations failure to do this resulted in the sewage eruption that damaged the affans maintain and repair common areas. in lamden, the supreme court recognized the applying the rule of judicial deference. in fact, the association did not prove the most there may be some rare situations in which an associations decision to do discharging an obligation to maintain and repair a developments common areas, courts 13 this dearth of evidence on the nature of the associations decisionmaking b. the trial court erred in applying the judicial deference rule the doctrine of nondelegable duty does not support entry of judgment in as for the facts in lamden, the supreme court concluded "the trial court engaged in "reasonable investigation" (lamden, 21 cal.4th at p. 253) before choosing to sewage backup into the affans unit would not have occurred. similarly situated. instead, there was evidence the association never sought to investigate the cause of the damages after their unit was flooded with sewage. the affans complaint alleged that owner of a condominium in the development, disagreed with that choice and sued for fourth appellate district background facts and procedure damage to the affans unit was a "casualty . . . insured against by the association[.]" unit. the plaintiffs further claimed the association breached its duty to promptly repair (ekstrom) [judicial deference rule does not apply where board decision was inconsistent 18 supports the trial courts implied finding that it acted with reasonable care in responding 15 decisionmaking. the court observed, "[t]he declaration [of cc&rs] here, in assigning failure to maintain and repair the drain lines for so many years courted just such a disaster. benefits of a particular course of action, or considered any other factors in choosing to a question arises concerning the significance of the associations april judicial deference applies "when owners in common interest developments seek to condominium complexs main plumbing lines, despite knowledge of a recurring . . . in a clean, sanitary and attractive condition[.]" section 1.13 defines the "common plumbing backups in their unit. from 1999 to 2005, every time they arrived at their as damages. the court denied all parties requests for attorney fees and costs. both the plumbing lines, constituted negligence or a breach of the cc&rs. instead, the court plumbing problem in first-floor units. 12 damages than they sought. discussion affans failed to prove the association had insured against the damage the affans essence of an associations duty to maintain and repair is a duty to act based on reasoned hoffman testified about what should have been done at the condo complex ordinarily, when the trial court gives an incorrect legal reason for its ruling, association board meeting in 2001 stated, "the board would like to see a bid on a year 22 13; code civ. proc., 475.) upon reasonable investigation, in good faith, and in a manner the board believed was in 11 remediation and restoration work needed in the unit. but they did not hire anyone to 17 cal.app.3d 824, 830 [condominium owner may sue association for personal injuries incident to at least one member of the board of directors of defendant portofino cove associations. (see lamden, supra, 21 cal.4th at p. 253.) huntington west is not a employee of defendant huntington west properties (huntington west), that sewage entered against both defendants on the equitable servitude cause of action though i the best interests of the association and its members. [citations.]" (lamden, supra, the judgment for breach of an equitable servitude. example, we can envision a scenario in which an association faces two extreme choices: over coverage issues. specifically, because the affans had begun experiencing plumbing finding "neither party has prevailed in this matter." the court explained that although the corporate business judgment rule" is a defense, "so to[o] is the rule of judicial deference the supreme courts careful articulation of the rule makes clear that the maintenance needs of the common area plumbing lines. put simply, the clogged drain defendant. servitude. the case is remanded for further proceedings in accord with the views lamden rule of deference are unmet here. for example, there was no evidence the board had a duty under the cc&rs, the common law, and the civil code,2 to maintain and opinion is certified for publication with the exception of part ii.d. boards decision?" (id. at p. 253.) and connect to lateral drain pipes running below the units and along the ceiling of the or remediation work beyond the emergency clean up of the unit. the parties agree the blanc homeowner's assn. v. department of veterans affairs (1998) 67 cal.app.4th 743, as manager to the plumbing problems in the complex. the substantial evidence rule, 2008. he cleared the lines using a motorized, spinning scour jet. at that point, the fees. after finding a sewage backup in april 2003, cenan wrote a letter to the p. 256.) the trial court found the association, after ordering extensive remedial and 2 casualty insurance by section 9.01 of the cc&rs. the court next reasoned that because an equitable servitude. to "restor[ing] the premises per [s]ection 10.01, to its ,,former condition[.]" the primary issue in this appeal is whether the trial court erred in applying clearly within the scope of its authority," and "[t]he trial court found that the board acted subject to a briefing schedule with respect to closing arguments relative to damages the judgment is reversed in all respects except as to the finding that the considered arranging for maintenance of a main plumbing line. minutes from an in damages. the court further determined that all parties should bear their own attorney *pursuant to california rules of court, rules 8.1105(b) and 8.1110, this the affans drain line. servitude on three related cc&r provisions. the court initially found that because the analyzed the associations actions using "an objective standard of reasonableness" rather ii the trial court made tentative findings in favor of both defendants on four of the five consequently, plaintiffs suffered prejudice when the trial court erroneously applied the hoffman, had rescue rooter used the proper "scour jet" method to clean the lines, the in april 2007, there was another sewage backup into the affans sink. at and remediate that damage. finally, they alleged the sewage eruption created a private the affans unit is on the first floor of a three-story building with an homeowners association. in a tacit admission that it has no claim to judicial deference, demonstrated the association board engaged in the sort of reasoned decisionmaking that action the only ones in which it was named. in an abundance of caution, the parties maintenance of the drain lines as a decision, other key prerequisites for application of the work, or took any action to maintain the drain lines before may 2005. causes of action. the court announced it found for plaintiffs on only their nuisance claim lines: the hydro-jetting left the main lines choked with the same debris that had been at the conclusion of the affans case, the association moved for judgment in its favor. their unit. if the association had no duty to pay, then its failure to do so did not breach the common areas, making it vicariously liable for the stipulated negligence of rescue huntington west was not named as a defendant on that claim. a month later, on dire consequences for plaintiffs case. the trial court never decided, based on the (cc&rs, section 10.03.) because substantial evidence supports this finding, we affirm portofino cove homeowners association. most other issues, we begin with an examination of the judicial deference rule established an order after judgment denying their attorney fees requests. pp. 1477-1478, original italics.) here, the trial court did not weigh the evidence, but show the court actually performed the factfinding function. where the record plaintiffs akil and cenan affan, husband and wife homeowners in a demonstrates the trial judge did not weigh the evidence, the presumption of correctness is while the statement of decision rejected any negligence liability on the marquesa at monarch beach homeowners assn. (2008) 168 cal.app.4th 1111, 1123 jerome m. jackson and doran b. richart for defendant and appellant ordinary maintenance. it does not create a blanket immunity for all the decisions and deference to the reasoned decisionmaking of homeowners association boards concerning judicial deference rule. additionally, the managing agent of the homeowners association of that finding to the question of whether substantial evidence supports it. (winograd v. the judicial deference doctrine does not shield an association from liability specific circumstances as follows: "where a duly constituted community association kind of problem in the pipes." he testified that the "accepted general practice" for 21 cal.4th at p. 253.) as justification for this deference, the court noted "the relative judgment against it for breach of an equitable servitude. first, the association argues the units stacked above. the vertical drain pipes run through the shared common area walls we conclude the trial court reasonably inferred from this evidence that the accumulating for a decade.8 plaintiffs lawsuit looked past that futile, last-minute cc&rs made the affans solely responsible for the cost of repairing the damage within case, however, does not present that scenario. as already noted, the associations pp. 253-254.) the board ordered a significant amount of "[r]emedial and investigative for ignoring problems; instead, it protects the associations good faith decisions to dispute arose concerning which of the two insurers would cover the damage resulting with termites. at various points, the homeowners association consulted with contractors defendants part for failing to maintain the common areas, the trial court did find the inspection" of the main lines; he also cut a cross section of one of the pipes. defendants breached their duty to maintain and repair the common area plumbing, which provided it with ",,a rational basis for their decision to reject fumigation and do . . . what court ruled the nuisance claim was untenable because it "depends upon the establishment plaintiffs and appellants, concerns about pets and plants, human health issues and eventual termite reinfestation." nature, credible, and of solid value. [citations.]" (bowers v. bernards (1984) can be presumed that the court has performed its function of weighing the evidence. if the associations challenge to the sufficiency of the evidence asserts the inc., so, then the association will be liable for the ensuing damage under the doctrine of because that conclusion was erroneous, we must reverse the judgment for defendants. attempting to control termites in the plaintiffs building. (lamden, supra, 21 cal.4th at the court of appeal reversed, holding that the trial court should have rescue rooter should have used a "scour jet" with a motorized spinning head for maintenance contract for the complex, and to collect bids. the board asked him "to litigate ordinary maintenance decisions entrusted to the discretion of their associations rylaarsdam, acting p. j. affans prevailed on the equitable servitude cause of action, they received far less in floor sewage eruptions, or to undertake any effective maintenance program for the main plaintiffs favor as a matter of law. negligence liability depends on more than breach of cc&rs, "to promptly indemnify plaintiffs as a result of a casualty loss originating in a from the 2005 eruption. iii servitude when it failed to indemnify the affans promptly for the casualty loss they maintenance decisions of homeowners associations. the lamden opinion made clear, and proceeded to hear argument on damages. the court then invited the parties into hoffmans opinion, rescue rooter used the wrong equipment to clear the main lines: stipulation or competent evidence. the trial court denied the affans and the associations requests for rooter. (see srithong v. total investment co. (1994) 23 cal.app.4th 721, 726 [landlord to landlords standard of care regarding common areas]; white v. cox (1971) inc. division three unless the declaration states otherwise, these servitudes may be enforced by any owner has no claim to judicial deference under lamden. consequently, we reverse the lines might be a more cost-effective way to deal with the recurring first-floor sewage as damages for this breach, the trial court awarded the affans only the cost association pursuant to [s]ection 9.01 . . . restoration and repair of any damage to the need not address this contention further. the associations other argument challenges when akil reported the april 21, 2005, sewage backup to brown, the 5 the trial courts equitable servitude analysis is explained in part ii.d. of defendant has the burden of establishing the requisite elements for applying the rule. fundamental element of this defense: that the affans lawsuit concerns a maintenance in favor of defendants. (red mountain, llc. v. fallbrook public utility dis. (2006) nothing to address a common area maintenance issue deserves judicial deference. for continue its "piecemeal" approach to sewage backups (i.e., sending plumbers to snake we look for any correct legal basis on which to sustain the judgment. (kemp bros. doing nothing or adopting a prohibitively expensive course of action. a court may huntington west properties, head, arguing the affans failed to prove the association did not meet the prerequisites for only the dispute over which policy applied caused the delay in repairing the affans unit. and pest control experts and "[o]ver some years . . . elected to spot treat . . . rather than 16 the prerequisites for judicial deference were met: "here, the board exercised discretion though the association considered hydro-jetting a main line in 2001, and the trial court mistakenly assumed the lamden rule of judicial deference of a separate interest or by the association, or by both." this opinion. defendant and respondent. by applying the rule of judicial deference to the maintenance decisions of homeowner affans damage resulted from a blockage in the sewer conduit located in the common judgment because if the association did not insure against this loss, section 10.03 of the associations insurance company in the affans unit after the incident. he explained the 8 affirmative defense].)7 underground parking garage. each ground floor unit shares vertical drain pipes with the obtained a bid. (id. at p. 255.) the board ultimately chose spot treatment over


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