Country Glen Oak Park etc. v. Garrett CA2/6 ( 2021 )

Filed 7/6/21 Country Glen Oak Park etc. v. Garrett CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
COUNTRY GLEN OAK PARK 2d Civ. No. B303220
HOMEOWNERS (Super. Ct. No. 56-2017-
ASSOCIATION, 00497633-CU-BC-VTA)
(Ventura County)
Plaintiff and Respondent,
v.
BRETT GARRETT et al.,
Defendants and Appellants.
In an action by a homeowner association against two
members of the association, the trial court ordered the members
to remove an encroachment from the common area, awarded the
association $820 damages, issued a restraining order against one
of the members, and awarded the association attorney fees. We
affirm.
FACTS
County Glen Oak Park is a common interest development
of 239 homes subject to the Davis-Stirling Common Interest
Development Act (Davis-Sterling Act). (Civ. Code, § 4000 et
seq.)1 The development is governed by the Country Glen Oak
Park Homeowners Association (Association) and subject to
recorded covenants, conditions, and restrictions (CC&R’s). The
daily operations of the Association were conducted by a
management company. Tami Chavin was the principal
managing agent for the Association.
Laurie and Brett Garrett purchased their parcel in 2001. It
sits on a hillside overlooking the Conejo Valley. A boundary line
runs across the Garretts’ backyard separating the Garretts’
property from the common area managed by the Association. A
metal fence also runs across the Garretts’ backyard, but it does
not mark the boundary line. Most of the fence is in the common
area outside of the Garretts’ property. The hillside falls steeply
away beyond the fence.
Application to Construct a Pool
The CC&R’s and the Association’s rules require a
homeowner to obtain approval from the Association’s
architectural committee before beginning any construction on the
property. The form application used by the Association asked
applicants to identify the location of the improvement on a plot
plan with reference to the fence line, not the property line. The
Association’s board members and Chavin generally understood
that the fences were not on the property lines.
The Garretts submitted an application for a pool and
related equipment to be constructed in their backyard. The
committee rejected the original application because the plans
were too vague and because professional plans are required for
such a large project.
1 All statutory references are to the Civil Code.
2.
The Garretts submitted an application with professionally
drawn plans showing the location of the pool and equipment. The
plans show an unlabeled straight line perpendicular to the pool.
The Garretts contended the line represents the fence. But the
fence is not straight; the property line is. The Garretts stated on
the application that it is only for a pool, and that other possible
improvements will be considered at another time. The committee
approved the application.
Neighbor’s Concerns
The Garretts’ neighbor, Randy Hermes, observed two
things about the construction that concerned him. First,
construction workers removed the fence, pushed dirt out toward
the slope and regraded part of the Garretts’ backyard. When the
workers replaced the fence, the base was buried deeper into the
ground, causing the height of the fence to be lower. Second,
Hermes saw pipes coming from out of the ground near the pool
area. He inferred that the pool equipment would be located in
that area and that it would encroach into the common area.
Hermes had a rough idea where the boundary lines were
located from his dealings with the developer many years before.
He also had documents identifying the location of the boundaries.
Hermes spoke with Brett Garrett over the fence between
their properties. Hermes expressed his concerns, and Garrett
promised that he would “make things right.” Hermes provided
Garrett with the documents showing the location of the boundary
lines.
After a few weeks Hermes saw that the Garretts were not
addressing his concerns. He contacted Chavin and showed her
photographs and documents. Chavin observed the construction
from Hermes’s backyard.
3.
Association’s Actions
On August 1, 2016, Chavin e-mailed the Garretts, stating
that she has pictures to show they have “replaced and moved the
wrought iron fence beyond its original location and that the [pool]
equipment is not on [their] property.” She invited comment, but
there was no response.
Two days later Chavin wrote the Garretts a letter,
demanding that they cease and desist the improvements that
were not part of their approved application. The letter referenced
the changes to the slope and the encroachment of the pool
equipment into the common area. The letter stated that the
board will schedule a hearing on the matter.
On August 8, 2016, Brett Garrett spoke with Chavin on the
telephone. He was angry and verbally abusive. Chavin decided
she would not speak with Brett Garrett on the telephone again.
On August 11, 2016, some of the board members met with
the Garretts on their property to conduct an inspection. They
inspected the property and listened to the Garretts. Brett
Garrett aggressively questioned the board members. But he was
told the board was there only to conduct an investigation, not to
answer the Garretts’ questions.
On August 16, 2016, Chavin wrote to the Garretts,
clarifying that the cease and desist order applied only to
improvements other than the pool.
On the same day, Chavin served notice on all the
homeowners of an executive session of the board to be held on
August 21, 2016. The purpose of the meeting was identified only
as “to discuss legal matters.” Prior to the meeting, Brett Garrett
requested permission to attend the meeting. Chavin replied that
the meeting was for board members only. But she assured
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Garrett that the board would be meeting in September, and that
she would shortly provide him with the date.
The board discussed the Garretts’ construction in executive
session on August 21, 2016. The discussion resulted in a letter to
the Garretts from Chavin dated August 22, 2016. The letter
demanded that the Garretts return the slope to its original
condition; retain an engineer to ensure the slope was returned
properly; relocate the fence to its original placement and height;
move the pool equipment to within their property; and provide
the board with as-built plans for the pool. The letter stated that
the board requires completion of these items within 45 days.
Brett Garrett wrote to Chavin. He admitted to being livid
at how the matter had been handled. Chavin told him he should
speak with the board. Chavin sent the Garretts notice that a
board meeting would be held on September 6, 2016.
The Garretts e-mailed board member Drew Fountaine.
Fountaine replied that in the interest of maintaining complete
integrity, he would not meet with the Garretts individually. He
would discuss the matter only in the company of the board at a
proper meeting. The next meeting would be on September 6 at
6:00 p.m. Fountaine said, “It is possible . . . that we will schedule
an executive session for the sole purpose of discussing this matter
with you and/or [Laurie Garrett] but it is uncertain at this time.”
The meeting was held on September 6, as scheduled. But
the Garretts did not appear. Homeowners who attended
expressed concern about work on the common area by the
Garretts. They also expressed fear for their safety due to
outbursts by Brett Garrett.
The day after the meeting Laurie Garrett wrote Chavin
that they did not attend the meeting because Fountaine said it
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was only a possibility that the Garretts’ problem would be
discussed.
In spite of the cease and desist order, the Garretts’ project
had blossomed into a complete backyard renovation with
retaining walls, stairs, a drainage system, patio pavers, and
planter beds. None of those improvements were part of the
Garretts’ application for architectural committee approval.
On October 3, 2016, Chavin wrote to the Garretts about
their expanded project and their refusal to cease and desist. She
stated that the board was working hard to meet with them, and
the board would turn the matter over to counsel unless they
ceased until an agreement is reached. She said the Garretts
could meet with the board on October 13, 2016, to resolve the
issue.
The Garretts met with the board on October 13. Brett
Garrett was hostile and angry. He left the meeting. Laurie
Garrett remained at the meeting and agreed with the board for a
retention of an expert. She agreed that if the expert found the
pool equipment was over the property line, the Garretts would
pay the expert; if the exert found the equipment was not over the
property line, the Association would pay. Within hours, Laurie
Garrett e-mailed Chavin that she was retracting her agreement.
The Garretts asked for a private meeting with the board.
On October 31, 2016, Brett Garrett wrote to Chavin
notifying her that their backyard improvements are complete,
and that they would like the board to inspect and certify that all
work is correct and legal.
The board scheduled an executive meeting for November
17, 2016, to meet privately with the Garretts. Hours before the
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meeting, however, the Garretts notified the board that they
would not attend.
The board held the meeting without the Garretts. The next
day Chavin wrote to the Garretts summarizing the board’s
conclusion. The board decided to retain and advance payment for
an expert. If the expert determined that the pool equipment
encroached onto the common area, and the Garretts refused to
reimburse the Association for the expert’s fee, the board would
nevertheless seek reimbursement from the Garretts.
In early December 2016, Laurie Garrett notified Chavin by
e-mail that the Garretts would be attending the December 22,
2016, board meeting. She asked Chavin why the board had not
come to their property. Chavin replied that the board would not
come because of Brett Garrett’s erratic and abusive behavior.
At the December 22, 2016, board meeting, the Garretts
agreed to allow an expert retained by the board to conduct an
inspection and survey of their property.
Notwithstanding the agreement, the Garretts refused to
allow the expert access to their property.
Judgment
The trial court issued a mandatory injunction requiring the
Garretts to remove the pool equipment and pad from the common
area within 60 days.
The trial court awarded $820 in compensatory damages
against the Garretts for damage to the fence.
The trial court issued a restraining order against Brett
Garrett enjoining him from confronting, intimidating, annoying,
harassing, threatening, challenging, provoking, or assaulting any
member of the Association, its agents or employees of its
contractors, including its management agency.
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The trial court found the Association to be the prevailing
party. The court awarded the Association $318,426 in attorney
fees.
DISCUSSION
I
Section 5855
The Garretts contend the trial court’s order to move the
pool equipment and pad is void under section 5855.
Section 5855 is part of the Davis-Stirling Act. Subdivision
(a) provides: “When the board is to meet to consider or impose
discipline upon a member, or to impose a monetary charge as a
means of reimbursing the association for costs incurred by the
association in the repair of damage to common area and facilities
caused by a member or the member’s guest or tenant, the board
shall notify the member in writing, by either personal delivery or
individual delivery pursuant to Section 4040, at least 10 days
prior to the meeting.”
Section 5855, subdivision (d) provides: “A disciplinary
action or the imposition of a monetary charge for damage to the
common area shall not be effective against a member unless the
board fulfills the requirements of this section.”
The Garretts argue that the trial court erred in concluding
that the board’s efforts to get them to comply with the CC&R’s
was not “discipline” within the meaning of section 5855,
subdivision (a).
The trial court concluded the term “discipline,” as used in
the statute, means “punishment.” The Association did not seek
to impose any punishment or sanction on the Garretts. All the
Association wanted was compliance with the CC&R’s. The
Garretts claim that discipline can include “control gained by
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enforcing obedience or order.” (Citing
https://www.merriamwebster.com/dictionary/discipline.) But the
usual and ordinary meaning of “discipline” involves the
imposition of punishment or sanction. (See MCI Communications
Services, Inc. v. California Dept. of Tax & Fee Administration
(2018) 28 Cal.App.5th 635, 643 [in interpreting a statute, we give
the words their usual and ordinary meaning].)
But we need not make a definitive construction of the
statute. Assuming section 5855 applies to the Association’s
demand for compliance with the CC&R’s, the Association
substantially complied with the statute. Where there is
compliance with a statute in all matters of substance, the
substance will prevail over form, and technical deviations will be
ignored. (Manderson-Saleh v. Regents of University of California
(2021) 60 Cal.App.5th 674, 701.)
The purpose and substance of section 5855 is to give the
member notice and an opportunity to be heard before discipline is
imposed. The Garretts had more than ample notice and an
opportunity to be heard.
The Garretts received notice of the September 6, 2016,
meeting, but chose not to attend. They gave the thin excuse that
there was only a possibility of meeting in executive session with
the board. They point to no rule requiring the board to meet with
them in executive session, as opposed to an open meeting.
Even discounting the September 6 meeting, the Garretts
had notice and three other opportunities to address the board and
resolve the matter. At the October 13, 2016, meeting, Brett
Garrett was hostile and angry and walked out of the meeting.
Within hours of the meeting, the Garretts gave notice that they
would not honor an agreement that Laurie Garrett made at the
9.
meeting. The Garretts were given notice of a November 17, 2016,
meeting with the board. They simply refused to attend. Finally,
the Garretts met with the board on December 22, 2016. They
made an agreement to allow an expert to inspect their property.
But they refused to honor that agreement.
The Association went far beyond any duty it may have had
under section 5855. The Association’s board scheduled multiple
meetings with the Garretts. Either the Garretts did not appear,
or, when they did appear, Brett Garrett walked out. The board
tried to fashion reasonable solutions, but even when the Garretts
would agree, the Garretts refused to honor the agreements they
made. The Garretts made it abundantly clear to the board that
they would do whatever they wanted to do and further notice and
hearings would be a waste of time.
II
Regular, Fair, and Reasonable Treatment
The Garretts contend the Association did not address the
violations in a regular, fair, and reasonable manner.
When a homeowners association seeks to enforce provisions
of its CC&R’s, it must follow its own procedures; the procedures
must be fair and reasonable; and the substantive decision must
be made in good faith, reasonable, and not arbitrary or
capricious. (Ironwood Owners Assn. IX v. Solomon (1986) 178
Cal.App.3d 766, 772.)
The Garretts complain that the architectural committee’s
form application required that the plans be measured from the
fence line not the property line. But the plans the Garretts
submitted showed the property line. Although the line is not
labeled, the trial court pointed out that the property line is a
straight line, whereas the fence line is not straight. Brett
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Garrett is a general contractor. He is not naïve. The court did
not believe he was unaware of the location of the property line.
Even assuming the improbable that the Garretts initially did not
know the location of the property line, Hermes informed them
and provided them with documents.
It is true the trial court found that the Association did not
act with strict adherence to the proper procedure. But the court
placed the blame squarely on the Garretts. The trial court found:
“From the outset, the board’s legitimate attempts to
determine whether the pool equipment was built entirely on the
Garrett’s property were ostructed [sic] by the Garretts’ abusive
and threatening conduct. Chavin and board members testified
that they feared Mr. Garrett. Their fear was both genuine and
justified. It is clear to the court that the Garretts, rather than
working collaboratively with the board to facilitate a fair process
for resolving this issue, engaged in a calculated attempt to
prevent that process. This included Mr. Garrett’s ongoing efforts
to harass and frighten Chavin, board members, and members of
the association who had spoken out against the Garretts. It also
included the Garretts’ pattern of making promises and then
breaking them. It included statements concerning the scope of
the Garretts’ work that were untrue and that the Garretts knew
were untrue. So although it may be concluded that the board
failed to address the matter of the encroachment ‘by the book,’
the reason for that was predominantly a result of the Garretts’
effort to obstruct the board from engaging in an orderly process.
Having purposefully created chaos, the Garretts can hardly be
heard to complain if the process of resolving their dispute was
neither linear nor perfect.
11.
“The court is persuaded that the process followed by the
board concerning the issue of the encroachment was
fundamentally reasonable under the circumstances created by
the Garretts.”
The Association did its best to address the violations in a
regular, fair, and reasonable manner in spite of the Garretts’
obstructive behavior.
III
Selective Enforcement
The Garretts contend that the Association selectively
enforced the CC&R’s against them.
The Association must exercise its power in a fair and
nondiscriminatory manner. (Laguna Royale Owners Assn. v.
Darger (1981) 119 Cal.App.3d 670, 684.) But in determining
whether the Association acted in a fair and nondiscriminatory
manner, we must give deference to the board’s power to make
reasonable business decisions. (Lamden v. La Jolla Shores
Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 270-
271.)
First, the evidence showed that the Association has
enforced the removal of encroachments against other
homeowners.
Second, the Garretts’ unstated assumption that the
Association must treat all alleged encroachments equally is
supported by neither authority nor common sense.
Here the trial court found:
“The Garretts argue that they were singled out unfairly in
that other members of the Association have structures
encroaching into the common area and that the board has taken
no action against them. The court finds this contention
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unpersuasive. The board investigated the complaints lodged by
the Garretts against other homeowners. The assertion that other
encroachments exist remains speculative without surveying each
involved property line. The board could concluded [sic], in the
exercise of reasonable business judgment, that the cost of those
surveys was not warranted. Each of the alleged encroaching
conditions had existed for some time without complaint and that
the existence or extent of each alleged encroachment was at best
uncertain. In contrast, the board had a reasonable basis, given
the documents provided by Hermes, that the Garretts’ pool
equipment did encroach into the common areas and that the
Garretts had constructed that encroachment notwithstanding
Herme[s’s] complaint and the board’s notice to cease and desist.”
The Garretts fail to cite to the trial court’s findings, no less
present a cogent argument why they are wrong.
IV
Board’s Duty to Inspect
The Garretts contend that the Association violated the
CC&R’s.
Article V, section 6 of the CC&R’s provides, in part:
“Inspection of Work. Inspection of work and correction of
defects therein shall proceed as follows:
“(a) Upon the completion of any work for which approved
plans are required under this Article, the Owner shall give
written notice of completion to the Architectural Committee.
“(b) Within sixty (60) days thereafter, the Architectural
Committee or its duly authorized representative may inspect
such Improvement. If the Architectural Committee finds that
such work was not done in substantial compliance with the
approved plans it shall notify the Owner in writing of such
13.
noncompliance within such sixty (60) day period, specifying the
particulars of noncompliance, and shall require the Owner to
remedy the same.
“(c) If upon the expiration of thirty (30) days from the date
of such notification the Owner shall have failed to remedy such
noncompliance, the Architectural Committee shall notify the
Board in writing of such failure. . . .
“(d) If for any reason the Architectural Committee fails to
notify the Owner of any noncompliance within sixty (60) days
after receipt of said written notice of completion from the Owner,
the Improvement shall be deemed to be in accordance with said
approved plans.”
The Garretts point out that they gave notice of completion
of their project on October 31, 2016. The board declined to
inspect the construction. The Garretts argue that because they
did not receive notice of noncompliance 60 days after the notice of
completion, their work is deemed to conform to the improved
plans.
The Association notified the Garretts in writing that their
project did not conform to the approved plans on August 1,
August 3, August 16, August 22, and October 3, 2016. The
Garretts were well aware of the Association’s position that their
project did not conform to the approved plans and they made it
abundantly clear that they refused to comply. The Association
was not required to perform the useless act of providing even
more notices. Moreover, as the trial court found, any irregularity
in the Association’s procedure was the result of the Garretts’
actions.
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V
Damages
The Garretts contend the trial court erred in awarding
damages.
The Garretts removed the Association’s fence at the back of
their property. They replaced it with a fence that was lower than
the original. The trial court awarded the Association $820 for the
cost of restoring the fence to its original condition.
The trial court found that the Garretts’ removal and
replacement of the Association’s fence were both a breach of the
CC&R’s and a tort. The Garretts argue that the court erred in
“tortifying” a breach of contract. (Citing Sands v. Walnut
Gardens Condominium Assn., Inc. (2019) 35 Cal.App.5th 174,
177.) But whether the Association’s cause of action is
characterized as a breach of contract or a tort is irrelevant. What
is relevant is that the Garretts caused damage to the
Association’s fence and must compensate the Association.
The Garretts argue that the amount of damages is not
supported by substantial evidence. They point to the testimony
of the Association’s expert that the $820 estimate to remove and
replace the fence pertains to work that needs to be done to gain
access to the pool equipment area. The Garretts argue that
because they are enjoined to remove the pool equipment, the
Association should not be awarded damages related to that
purpose.
The flaw in the Garretts’ argument is that they cite no
authority requiring the Association to allow the Garretts to
remove and replace the fence. The fence belongs to the
Association. Given the Garretts’ resistance to cooperating with
the Association, the Association may well wish to have someone
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else remove and replace the fence. The Association is entitled to
damages for that purpose.
VI
Restraining Order
The Garretts contend the trial court erred in granting the
restraining order against Brett Garrett.
Brett Garrett claims that he understandably reacted to
being railroaded and unfairly treated by the board. He claims
that his conduct neither unreasonably nor substantially
interfered with other owners’ enjoyment of their properties nor
with the Association’s governance.
But the trial court did not find that the Garretts were being
railroaded or unfairly treated by the board. To the contrary, the
court gave the Association most of the relief it requested.
As to substantial interference with other owners’
enjoyment of their properties and the Association’s governance,
the trial court found:
“The evidence of Mr. Garrett’s misbehavior was compelling.
Commencing with the denial of his first architectural review
application, Mr. Garrett engaged in a calculated campaign of
intimidation of all whom he perceived to be obstacles to him
getting what he wanted. His tirade was directed at neighbors
Randy Hermes and Sue Wilson, board members Paul Abate and
Drew Fountaine, and property manager Tami Chavin, among
others. The conduct consisted of shouts, profanities, making loud
or disturbing noises, staring into neighbors’ yards or homes, and
unsafe and threatening driving. His pattern of offensive and
abusive conduct made individuals feel unsafe.”
Nor is the restraining order impermissibly overbroad or
vague. Words such as confronting, annoying, challenging, and
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provoking are ordinary English words understood by most adults.
They are not vague and the order is as narrowly tailored as the
circumstances call for.
VII
Attorney Fees
The Garretts contend that even if the trial court’s order to
remove the pool equipment is correct, we must reverse the award
of attorney fees.
Section 5975, subdivision (c) provides, “In an action to
enforce the governing documents [of a common interest
development], the prevailing party shall be awarded reasonable
attorney’s fees and costs.” An award of attorney fees is reviewed
for an abuse of discretion. (PLCM Group, Inc. v. Drexler (2000)
22 Cal.4th 1084, 1095.)
(a) Prevailing Party
The Garretts point out that the Association did not prevail
on the issue of whether they destabilized the slope and were
awarded only $820 in damages. But the trial court found that
the principal issue at trial was the pool equipment encroachment
onto the common area. The Association prevailed on that issue
and was awarded the amount of damages on which the parties
agreed to repair the fence. By its action the Association regained
control of the common area. The court did not abuse its
discretion in determining the Association to be the prevailing
party.
(b) Mediation
The Garretts contend the Association is not entitled to
attorney fees because it unreasonably refused to mediate prior to
commencing litigation.
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The Garretts rely on section 5960, part of the Davis-
Stirling Act. That section provides: “In an enforcement action in
which attorney’s fees and costs may be awarded, the court, in
determining the amount of the award, may consider whether a
party’s refusal to participate in alternative dispute resolution
before commencement of the action was reasonable.” (Ibid.)
The section provides that the trial court “may” consider a
party’s refusal to participate. (§ 5960.) It is not mandatory.
Here the trial court did consider both parties’ failure to
participate. The court found that both parties offered to
participate in mediation but could not agree on the terms, so no
mediation occurred. The court stated that the circumstances do
not require a denial or reduction in attorney fees. The court did
not find the Association unreasonably refused to participate in
alternative dispute resolution.
The Garretts’ argument amounts to nothing more than that
the Association was required to accept the free mediation service
the Garretts proposed. The Garretts cite no authority requiring a
party to accept any particular mediator.
(c) Amount of Fee Award
The Garretts argue that the trial court erred in awarding
the Association all its requested fees, rather than reducing them,
because the Association did not prevail on all its claims.
The Association requested $323,574, and the trial court
awarded $318,426.
The record shows the trial court carefully reviewed the
Association’s fee request and the Garretts’ objections. The
Garretts point out that the Association was awarded only $820 in
damages and did not prevail on the issue whether they
destabilized the slope.
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Damages were only a small part of the Association’s case.
The principal issue was the pool equipment encroachment onto
the common area.
As to the issue of slope stability, the trial court found:
“It was undisputed at trial that the Garretts had added soil
to their lot and, in doing so, changed the topography of the
hillside. The Association presented competent expert testimony
that this grading work had destabilized the hillside. Were this
the case, then this condition would have created a substantial
hazard to persons on the Garrett property and the common area
below it and significantly diminished the value of the
Association’s interest in the common area. Although the court
ultimately concluded that the Garretts’ expert testimony, to the
effect that the hillside had not been destabilized, was of greater
persuasive force, it was not unreasonable for the Association to
seek a judicial determination as to this important factual
dispute.”
The trial court stated, “Viewed as a whole, what the
Association gained through the litigation was not out of line with
the fees it incurred and now seeks reimbursement of.”
The trial court did not abuse its discretion in awarding
fees.
DISPOSITION
The judgment is affirmed. Costs are awarded to
respondent.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. PERREN, J.
19.
Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Slaughter, Reagan & Cole, Barry J. Reagan and Gabriele
M. Lashly for Defendants and Appellants.
Beaumont Tashjian, Jeffrey A. Beaumont, Tara Radley and
Eugene Rubinstein for Plaintiff and Respondent.
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