Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. No. PC041756 Melvin D. Sandvig, Judge.
Silverman & Associates and Robert B. Silverman for Defendants and Appellants.
Swedelson & Gottlieb, David C. Swedelson and Joan E. Lewis-Heard for Plaintiff and Respondent.
CHAVEZ, J.
James and RaeAnn Martin (Martins), Richard and Rachel Peterson, and the Peterson family trust (Petersons) (collectively appellants) appeal from an order granting summary judgment in favor of Bridgeport Community Association, Inc. (Bridgeport) on its claims against appellants for violations of Bridgeport’s Covenants, Conditions and Restrictions (CC&Rs) and Architectural Guidelines. Appellants also appeal from the court’s subsequent order determining Bridgeport to be the prevailing party and awarding Bridgeport the sum of $88,671 in attorney fees.
CONTENTIONS REGARDING MOTION FOR SUMMARY JUDGMENT
Appellants contend that the order granting summary judgment should be reversed. In their opening brief, appellants set forth 20 separate arguments for our review. We have attempted to consolidate these arguments. Appellants’ arguments are summarized below:
1. Bridgeport failed to follow the procedures set forth in its own CC&Rs. Specifically, notice was improper because it was only sent to the Martins, not the Petersons, and because the notice did not include all of the violations that were ultimately the subject of injunctive relief following summary judgment. Further, Bridgeport failed to engage in Alternative Dispute Resolution (ADR) or mediation, as required. Finally, a factual issue existed as to the reasonableness of the CC&Rs.
2. Triable issues of fact existed regarding the issue of waiver. Specifically, James Martin provided evidence that he had been told that Bridgeport would not take any action against appellants for violations until outstanding lot line adjustment issues were resolved. In addition, the trial court committed reversible error when it determined that the lot line dispute was irrelevant. Finally, triable issues of fact exist as to whether Bridgeport waived its claims by failing to take action for years after the alleged violations, and failing to comply with section 14.3 of the CC&Rs.
3. The trial court erred in considering alleged violations not included in the pleadings.
4. Triable issues of fact existed as to whether the violations remained, and whether appellants would have continued or repeated their wrongful acts.
5. Bridgeport had an adequate remedy at law under its CC&Rs, therefore the request for permanent injunction should have been denied.
6. The court’s order granting summary judgment was insufficient because it failed to address why appellants’ arguments in opposition to the motion had been rejected.
CONTENTIONS REGARDING ORDER GRANTING ATTORNEY FEES
Appellants contend that, if the order granting summary judgment is reversed, the order awarding attorney fees must also be reversed.
However, in the event that this court does not reverse the order granting summary judgment, appellants contend that the attorney fee award should nevertheless be reversed. Specifically, appellants contend:
1. Attorney fees should not have been assessed against the Petersons because they were never served with a request for resolution.
2. Attorney fees should not have been awarded for enforcement of alleged violations that were not part of the notice of hearing.
3. Bridgeport should not have been determined to be the prevailing party without demonstrating that it followed its own standards and procedures prior to pursuing court action and that those procedures were fair and reasonable.
4. The court’s failure to consider the issue of waiver precluded it from determining Bridgeport to be the prevailing party.
5. Under Civil Code section 1354, the Martins could not have been entitled to attorney fees. Therefore no attorney fees should have been awarded against them.
All further statutory references are to the Civil Code, unless otherwise noted.
BACKGROUND
Bridgeport is an upscale lakefront homeowners association located in Valencia, California. Bridgeport’s Architectural Guidelines were written “to preserve a high quality of appearance, to assure compatibility between improvements, and to enhance the Bridgeport Community’s overall value.” The Architectural Guidelines make it clear that “[t]he primary purpose of landscaping in private yards visible to streets – such as front yards and corner side yards – is to create an attractive street scene.”
1. The complaint
On November 20, 2007, Bridgeport filed a complaint against appellants asserting causes of action for violation of the CC&Rs, injunctive relief, and declaratory relief. The action was brought pursuant to section 1368.3 and Bridgeport’s own governing documents.
Section 1368.3 states: “An association established to manage a common interest development has standing to institute, defend, settle, or intervene in litigation, arbitration, mediation, or administrative proceedings in its own name as the real party in interest and without joining with it the individual owners of the common interest development, in matters pertaining to the following: [¶] (a) Enforcement of governing documents. [¶] (b) Damage to the common area. [¶] (c) Damage to a separate interest that the association is obligated to maintain or repair. [¶] (d) Damage to a separate interest that arises out of, or is integrally related to, damage to the common area or a separate interest that the association is obligated to maintain or repair.”
“Governing Documents” was defined to include Bridgeport’s CC&Rs and Architectural Guidelines.
The complaint alleged that appellants made several architectural modifications to the property, without approval, and in violation of the governing documents. The modifications included: orange fencing, a plywood gate, the removal of landscaping, and the excavation of soil. Bridgeport alleged that no application for architectural modifications was submitted, no approval was sought, and as a result, the unauthorized work violated the CC&Rs. Bridgeport further alleged that “sitting on the driveway of the Property is a pallet of building and/or rock materials and a Waverunner or other recreational vehicle covered with a tarp.” Appellants had refused to remove these items from the driveway in violation of the CC&Rs, which prohibited storing items or parking on the property, with limited exceptions. Bridgeport alleged that it had no adequate remedy at law and that monetary damages could not adequately compensate for Bridgeport’s injuries.
The orange fence and materials on the driveway were removed after Bridgeport filed its complaint but before Bridgeport was able to serve its “Order to Show Cause re: Preliminary Injunction,” which was filed on December 4, 2007. On January 25, 2008, the court denied the motion for temporary restraining order without prejudice.
By its first cause of action, Bridgeport sought an order requiring appellants to remove the unauthorized modifications and/or additional improvements until such time as they submitted architectural applications and received approval, and mandating that appellants not commence any further improvements, landscaping or hardscaping without prior written approval of Bridgeport.
By its second cause of action, Bridgeport sought a declaration as to the rights of the parties. Bridgeport asserted that an actual controversy had arisen because Bridgeport claimed the CC&Rs forbade appellants’ conduct, yet appellants maintained that (1) the CC&Rs had no force and effect upon them, and (2) they were not in violation thereof. Bridgeport requested that the court adjudicate the controversy and provide declaratory relief.
The CC&Rs and Architectural Guidelines were attached as exhibits to the complaint.
2. Answer and affirmative defenses
The Petersons’ answer contained a general denial as well as affirmative defenses. Included among the affirmative defenses were: excusal of performance based on Bridgeport’s own breach of the CC&Rs; judicial estoppel based upon a matter entitled Peterson v. Bridgeport Community Association, Los Angeles Superior Court case No. PC039657; failure of Bridgeport to comply with article XIV of the applicable CC&Rs, which provided for a comprehensive dispute resolution procedure; and the existence of an adequate remedy available through ADR. Appellants further asserted that the alleged items such as pallet, tarp, and orange fencing did not exist on the property at present; that an architectural plan was submitted; and that the violations were not enforceable and were unreasonable.
The Martins filed an answer asserting the same affirmative defenses as the Petersons.
3. Bridgeport’s motion for summary judgment
Bridgeport filed its motion for summary judgment or in the alternative motion for summary adjudication of issues (summary judgment motion) on September 24, 2008. Bridgeport argued that no triable issue of material fact existed and that it was entitled to judgment as a matter of law because the undisputed facts showed that appellants had made several modifications to the property without approval and that Bridgeport had the right to require compliance with the CC&Rs and the Architectural Guidelines.
Bridgeport filed two declarations in support of the motion. The first was the declaration of Steve Terwilliger (Terwilliger), a member of the board and vice president of Bridgeport. Terwilliger’s declaration attached the relevant pages of the CC&Rs and Architectural Guidelines. Terwilliger stated that Bridgeport was embroiled in a number of different lawsuits with the Martins and Petersons, including three superior court and six small claims court matters in which Bridgeport was a defendant. Terwilliger’s declaration also attached photographs. Some of the photographs showed the back portion of the Martin/Peterson property, revealing the excavation referenced in the lawsuit as well as the construction materials and tarp-covered Waverunner. Other photographs showed the front portion of the property, showing the gate they had installed without approval. Terwilliger declared that Bridgeport had previously delayed taking legal action because it hoped the Martins and Petersons would honor their promises to submit plans and maintain the property. However, the matter had not been resolved and the property had to be brought into compliance to prevent further harm.
The second declaration was provided by Russ Hoffman (Hoffman), one of the principals of Valencia Management Group, the managing agent for Bridgeport. Hoffman stated that on October 4, 2006, he wrote the Martins a letter notifying them that a hearing would take place on October 18, 2006, to address their noncompliance with the CC&Rs. The hearing went forward on October 18, 2006, at which time the Martins acknowledged that plans had not been submitted but promised to submit such plans. Following the hearing, on October 26, 2006, Hoffman sent another letter raising concerns regarding the gate and the excavation on the property. Even after two years, Bridgeport never received the promised architectural application or proposed plans for completion of the improvements to the exterior of the home. In addition, all of the conditions that were referenced in Hoffman’s letter to the Martins remained, with the exception of the orange plastic fence which had been removed. Hoffman stated that he had requested compliance with the CC&Rs and Architectural Guidelines, and that no application for architectural modification had been submitted.
4. Opposition to Bridgeport’s motion for summary judgment
Appellants filed an opposition to Bridgeport’s motion for summary judgment on January 16, 2009. Appellants argued that Bridgeport had not complied with the policies and procedures set forth in its own CC&Rs, and that the CC&Rs did not apply to the Martins, therefore Bridgeport’s motion for summary judgment should be denied. In addition, appellants referenced a controversy regarding the boundary lines of the property, claiming that “[t]he uncertainty in the boundary lines made it impossible for the Petersons to properly initiate and complete any type of planning with regard to the architectural schematic or the landscaping schematic of the Property.” Appellants further argued that the matter was not properly before the court because the governing rules did not provide that Bridgeport was empowered to commence civil action or seek injunctive relief. Appellants stated that a triable issue of fact remained as to “which rules apply to the facts at hand: the CC&Rs, the Rules and Regulations or the Guidelines.” Appellants also claimed that the alleged violations of the CC&Rs and guidelines were moot.
5. Bridgeport’s reply in support of its motion for summary judgment
Bridgeport filed its reply memorandum on January 28, 2009. Bridgeport emphasized that the undisputed facts remained that Bridgeport’s governing documents required approval for construction work to begin, that appellants commenced work on the home without seeking prior approval, and the work that was commenced had been unfinished for several years. In addition, there was no evidence of any currently pending litigation to resolve the boundary dispute. Bridgeport argued that it was entitled to seek injunctive relief as a matter of law, and that it had made every effort to resolve the dispute short of litigation, including engaging in mediation. Bridgeport further argued that the Martins and the Petersons were both subject to the CC&Rs, and that interpretation of those rules did not present a triable issue of fact.
6. The court’s ruling
A hearing on Bridgeport’s motion for summary judgment was held on February 2, 2009. The court’s tentative decision was to grant the motion. As the court explained: “[T]he only thing [Bridgeport was] seeking was for the [appellants] to comply with the CC&Rs by removing modifications which were added without the approval until the appropriate approval was granted. I don’t think [appellants] were arguing the fact that the modifications were added without approvals.” The court made it clear that its position was that “[t]here wasn’t any evidence to support the contention or that the violations concerning the property had anything to do with the boundary lines.” The court agreed with Bridgeport’s counsel that “[t]he law is very clear that the injunctive and declaratory relief is the relief that’s sought for failure to comply with governing documents. It’s a matter of law, not a disputed issue of fact as to how the governing documents are interpreted. And they admit they’re not in compliance.” The court granted Bridgeport’s motion, ruling that it applied to both the owners and occupiers of the land. Judgment was entered on February 17, 2009.
Appellants filed their notice of appeal on April 2, 2009.
DISCUSSION
I. Standard of review
The standard of review for an order granting summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial court’s stated reasons for granting summary relief are not binding on the reviewing court, which reviews the trial court’s ruling, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
A party moving for summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid., fn. omitted.) “A defendant bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto. [Citation.]” (Ibid.) Generally, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.... A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Aguilar, supra, 25 Cal.4th at pp. 850-851.)
II. Bridgeport’s prima facie showing
As the moving party, it was Bridgeport’s burden to make a prima facie showing of the nonexistence of any triable issue of fact. Bridgeport’s prima facie showing consisted of: (1) evidence that the property in question was subject to Bridgeport’s CC&Rs; (2) evidence of the prohibitions contained in the CC&Rs; and (3) evidence of appellants’ violations of such rules.
A. The property
The undisputed evidence showed that the property which is the subject of this action is located within Bridgeport’s boundaries in Valencia, California. Bridgeport also presented undisputed evidence that the CC&Rs “run with the land” and bind all owners and occupiers of the property.
B. The CC&Rs
Bridgeport set forth three specific provisions of the CC&Rs. First, article III, section 3.1(k) specifically prohibited any construction, erection, placement, or modification of any thing, permanently or temporarily, on the outside portions of any unit, whether such portion is improved or unimproved, except in strict compliance with article IV of the CC&Rs and the Architectural Guidelines.
Article IV, section 4.1 specifically prohibited any work (including excavation, grading and other site work, exterior alterations of existing improvements, or the planting and removal of landscaping) without compliance with the CC&Rs and the Architectural Guidelines. Article IV, section 4.1 of the CC&Rs and the Architectural Guidelines required the submission of plans and approval before any work could be done on the property.
Article V, section 5.1 of the CC&Rs required that each owner maintain the property, and all landscaping improvements, in a manner consistent with the governing documents. In addition, the Architectural Guidelines specified that “‘one of the more important functions’” of Bridgeport is “enhancing the desirability and attractiveness of living in the Bridgeport community by preserving the architectural continuity of the community.”
In sum, the CC&Rs and Architectural Guidelines made it clear that Bridgeport needed to approve all modifications to each home and to ensure that the property was properly maintained.
C. Appellants’ violations
Bridgeport produced evidence that despite the clear requirements of the CC&Rs and multiple requests by Bridgeport for the submission of plans for approval, the appellants made unapproved modifications to the property, some of which were incomplete. The modifications included: unapproved orange fencing; an unapproved plywood gate; landscaping removal; soil excavation; a barbeque pit; and various hardscape features such as sidewalk pavers. Bridgeport’s evidence included the declarations of Terwilliger and Hoffman as well as attached photographs.
III. Appellants’ burden
Once Bridgeport made its prima facie showing, the burden shifted to appellants to make a prima facie showing of the existence of a triable issue of material fact regarding the issues set forth by the summary judgment motion. Appellants did not dispute that the property was subject to the CC&Rs, that the prohibitions evidenced by Bridgeport existed, or that the violations had occurred.
While appellants argued that certain of the alleged violations no longer existed, they did not deny that the violations had occurred. James Martin stated in his declaration that “there was never a gate where Bridgeport alleges that a plastic gate existed,” but this statement was never raised as a specific factual dispute in opposition to summary judgment. In fact, David L. Hoffman’s declaration in support of the opposition to summary judgment implicitly admitted to the existence of the fence: “[Bridgeport] was aware of the orange fence as early as May 2006.” In addition, while James Martin asserted in his declaration that “[i]n 2002, we submitted plans to Bridgeport,” there was no evidence that those plans concerned the violations that are the subjects of this lawsuit, nor did appellants argue to the trial court that there was a factual dispute as to the submission of such plans.
Instead, appellants argued that triable issues of fact existed as to Bridgeport’s compliance with the CC&Rs, the remedies available to Bridgeport, and which rules were applicable. Appellants further argued that Bridgeport failed to provide any evidence to show that the Martins, who did not own the subject property, were subject to the CC&Rs.
Appellants also argued that Bridgeport’s separate statement of undisputed facts and evidence failed to comply with the requirements of California Rules of Court, rule 3.1350. Appellants have abandoned this argument on appeal.
As set forth below, appellants’ arguments do not create a triable issue of material facts as to any of the elements of Bridgeport’s prima facie case, nor do they otherwise defeat Bridgeport’s summary judgment motion.
A. Failure to follow required procedures
Appellants’ main arguments focus on its claim that Bridgeport failed to comply with its own procedures for the resolution of these types of disputes. Appellants’ position is that, under Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766 (Ironwood), a homeowners’ association is not entitled to summary judgment if it has not established that it followed its own procedures prior to pursuing action in superior court and that those procedures were fair and reasonable.
1. Relevant rules
Appellants have set forth the applicable law. First, under section 1363.820, Bridgeport was required to provide a “fair, reasonable, and expeditious procedure” for addressing violations such as the violations alleged in this matter. In addition, before filing an enforcement action in superior court, the parties must engage in ADR. (§ 1369.520, subd. (a).)
Section 14.1 of Bridgeport’s CC&Rs provides that “[e]ach Bound Party covenants and agrees to use good faith efforts to resolve claims, grievances, or disputes arising out of or relating to the interpretation, application, or enforcement of the Governing Documents (‘Claims’) using the procedures set forth in Section 14.3 prior to filing suit in any court.”
Section 14.3 provides, in pertinent part:
“Dispute Resolution Process
“(a) Notice. Any Bound Party having a Claim (‘Claimant’) against any other Bound Party (‘Respondent’) (collectively, ‘Parties’) shall notify each Respondent in writing (‘Notice’), stating plainly and concisely:
“(i) the nature of the Claim, including the Persons involved and Respondent’s role in the Claim;
“(ii) the legal basis for the Claim (i.e., the specific authority out of which the Claim arises);
“(iii) Claimant’s proposed remedy; and
“(iv) that Claimant will meet with Respondent to discuss in good faith ways to resolve the Claim.
“(b) Negotiation and Mediation
“(i) The Parties shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in writing, accompanied by a copy of the Notice, the Board may appoint a representative to assist the Parties in negotiation.
“(ii) If the Parties do not resolve the Claim within 30 days of the date of the Notice (or within such other period as may be agreed upon by the Parties) (‘Termination of Negotiations’), Claimant shall have 30 additional days to submit the Claim to mediation under the auspices of an independent agency providing dispute resolution services in the Los Angeles area.
“(iii) If Claimant does not submit the Claim to mediation within such time, or does not appear for mediation, Claimant shall be deemed to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to any Person other than the Claimant.”
Section 14.4. of the CC&Rs provides that “[t]he dispute resolution procedures described in Section 14.3 shall be deemed to satisfy the alternative dispute resolution requirement of [former] CAL. CIV. CODE [section] 1354, as applicable.”
Former section 1354, subdivision (b) required that “prior to the filing of a civil action by either an association or an owner or a member of a common interest development solely for declaratory relief or injunctive relief... the parties shall endeavor, as provided in this subdivision, to submit their dispute to a form of alternative dispute resolution such as mediation or arbitration.” (Stats. 1993, ch. 303, § 1.)
2. Ironwood, supra, 178 Cal.App.3d 766
Appellants rely heavily on Ironwood in arguing that summary judgment is improper where an association has failed to follow its own standards and procedures. In Ironwood, a homeowners’ association brought an action for injunctive and declaratory relief against member homeowners who had planted eight palm trees in violation of the association’s CC&Rs. The Court of Appeal affirmed the trial court’s declaratory conclusion that the homeowners were required under the CC&Rs to submit a plan proposing the addition of the trees. (Ironwood, supra, 178 Cal.App.3d at p. 771.) However, the Court of Appeal disagreed with the trial court’s conclusion that Ironwood could enforce its CC&Rs by mandatory injunction compelling removal of the trees. The Court of Appeal concluded that several issues of material fact existed as to whether Ironwood followed its own procedures prior to insisting that the trees be removed. For example, there was no evidence showing any decision by the board of directors, no indication that the architectural committee ever met, and no indication of any findings by either the board or the architectural committee. (Id. at p. 773.)
The mandatory injunction in Ironwood was in effect a “request to enforce an administrative decision on its part disapproving the palm trees” -- an administrative decision that had never been made by the association’s board. (Ironwood, supra, 178 Cal.App.3dat p. 771.) “‘The fact that [the member homeowners] did not obtain approval from the Architectural Control Committee [was] not even at issue.’” (Id. at p. 772.) In the present matter, such approval was the central issue. Bridgeport held a hearing, expressed its decision that appellants must submit plans for approval of the work being done, and consistently insisted that plans for approval were necessary. The court’s order reinforced Bridgeport’s decision that no improvements could be made “until the appropriate approval is obtained.” Ironwood is therefore distinguishable.
3. Failure to follow standards & procedures
a. Notice
Appellants first argue that notice of the hearing before Bridgeport’s board was sent only to the Martins, not the Petersons, the latter being owners of the property. Thus, appellants argue, summary judgment should not have been granted against the Petersons. However, appellants do not provide any citations to the record showing that they raised this argument in opposition to Bridgeport’s summary judgment motion. Therefore, Bridgeport had no opportunity to present evidence that the Petersons had actual or imputed notice of the dispute. “[P]ossible theories not fully developed or factually presented to the trial court cannot create a ‘triable issue’ on appeal.” (Johanson Transportation Service v. Rich Pik’d Rite, Inc. (1985) 164 Cal.App.3d 583, 588 (Johanson).)
In addition, appellants claim that such notice did not include all of the violations which were the subject of injunctive relief. Again, appellants have cited no argument or authority in the record suggesting that this theory was fully developed before the trial court. The trial court had no opportunity to address or resolve this issue therefore we cannot consider it on appeal. (Johanson, supra, 164 Cal.App.3d at p. 588.)
b. Failure to engage in ADR
Appellants claim that Bridgeport failed to follow its own standards and procedures by failing to engage in ADR, as required by section 14.3 of the CC&Rs. Appellants contend that Bridgeport’s failure to demand mediation acted as a bar to this legal action.
However, as Bridgeport points out, the alternative dispute resolution process outlined in the CC&Rs is not a mandatory prerequisite to filing suit. The CC&Rs specify that “[a]ll remedies set forth in the Governing Documents shall be cumulative of any remedies available at law or in equity.” As set forth in Section 14.1 of the CC&Rs, the alternative method for resolving disputes is set forth “to encourage the amicable resolution of disputes” (italics added). Thus, the parties merely agreed to “use good faith efforts” to resolve claims using the procedures set forth in section 14.3 “prior to filing suit in any court.”
The question of whether Bridgeport followed its own CC&Rs is an issue of law, which does not turn on conflicting evidence. (Bear Creek Master Assn. v. Edwards (2005) 130 Cal.App.4th 1470, 1478.) Because we find that Bridgeport did not violate its own standards and procedures, this legal issue may not defeat Bridgeport’s motion for summary judgment.
Bridgeport acted within its authority in seeking an order compelling appellants to comply with the CC&Rs. Bridgeport had already provided appellants with notice, an informal hearing, and repeated requests for the submission of plans. All of those actions demonstrated Bridgeport’s efforts to resolve the matter informally. Given appellants’ continued refusal to submit plans for approval, and continued violations of the CC&Rs, Bridgeport’s election to proceed immediately with court action was permissible. Bridgeport’s filing of a motion for preliminary injunction demonstrated its position that court intervention was urgently needed. Bridgeport was not required to follow the procedures set forth in section 14.3.
When preliminary or temporary injunctive relief is sought, section 1369.560, subdivision (a)(3) permits the commencement of an action without submission of the dispute to ADR.
c. Validity and reasonableness of the CC&Rs
Appellants argue that “[a]n open question exists as to whether determining the validity of the CC&Rs, including their reasonableness is a factual or legal issue.” Appellants cite several cases regarding this issue. However, appellants make no specific argument as to the validity of any provision. Thus, we decline to address this question.
B. Waiver
Appellants argue that triable issues of fact exist over the issue of waiver. Specifically, appellants contend that Bridgeport waived its right to pursue the matters which are the subject of this action because one of Bridgeport’s representatives told the Martins that Bridgeport would not take any action against them until a dispute over a lot line adjustment was complete. In addition, appellants contend that Bridgeport waived these claims by failing to engage in ADR and failing to take action for years after the violations.
Appellants did not raise the arguments of waiver based on the lot line dispute and the passage of time below. Thus, appellants may not pursue these theories on appeal. (Johanson, supra, 164 Cal.App.3d at p. 588.)
While appellants argued to the trial court that the existence of the lot line dispute made it impossible to submit plans, they did not specifically present the argument of waiver. Further, appellants presented no evidence or legal authority that the statements of Wolfgang Costello created a binding waiver prohibiting Bridgeport from pursuing these claims. Appellants also argue that the trial court committed error and engaged in issue determination in finding that the lot line dispute was irrelevant. However, because the issue of waiver based on the lot line adjustment dispute was not argued below, the trial court did not commit the improper issue determination of which appellants complain.
Appellants argue that, had the trial court properly interpreted the CC&Rs, it would have determined that Bridgeport waived any alleged violations by not complying with section 14.3(b). As set forth above in section III.A.3.b., ante, the CC&Rs do not mandate the use of the procedures set forth in section 14.3. Thus, appellants’ waiver argument fails.
C. Existence of allegations not set forth in the pleadings
Appellants argue that the pleadings frame the issues, and that it was improper for the trial court to consider issues not raised therein. Specifically, the court made a finding with respect to the barbeque pit violation, which was first noted after the commencement of this action.
The barbeque pit was mentioned in Bridgeport’s motion for summary judgment as one of the unauthorized improvements subject to Bridgeport’s motion. Neither in appellants’ opposition to the motion, nor at oral argument, did appellants object to the inclusion of the barbeque pit based on Bridgeport’s failure to mention it in the pleadings. Appellants noted in their response to Bridgeport’s separate statement of undisputed facts that the barbeque pit was “not part of the complaint,” but presented no argument to the trial court as to why it should be excluded from the injunction. This argument is therefore forfeited.
D. Continued and future existence of violations
Appellants argue that there was a triable issue of fact as to whether the violations still existed and whether appellants would have continued or repeated their wrongful acts. Injunctive relief is proper only when it appears with reasonable certainty that a party to the action will continue or repeat his wrongful acts. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333.) Here, appellants argue, triable issues of fact existed as to whether the violations had been rendered moot.
However, the court’s order was not restricted to any specific violations. Instead, it mandated that appellants comply with their obligations under the CC&Rs. Specifically, appellants were ordered to remove “[a]ll unauthorized modifications... until such time as they submit an appropriate and complete application... and receive approval by Bridgeport....” Appellants were further ordered to “submit their appropriate and complete application, including fees and architectural plans to Bridgeport Community Association within thirty (30) days of the date of entry of judgment.” Thus, the question of whether specific violations had been removed at the time the motion was granted was irrelevant. Appellants did not deny that they still had not submitted the required plans for improvements. Nor did they deny that they planned such improvements. Thus, it was not error for the court to grant the injunctive relief.
As noted above, appellants point out that they submitted plans to Bridgeport and its prior management company, Merit, in 2002. However, this was before the notices regarding the violations relevant to this matter, and the hearing on the same violations, occurred. Appellants have presented no specific evidence or argument to the trial court that the plans submitted in 2002 related to the requests beginning in 2006.
E. Existence of adequate remedy at law
Appellants’ final argument regarding the summary judgment motion is that Bridgeport should have been denied its request for permanent injunctive relief because it had an adequate remedy at law through its own CC&Rs. However, it was appellants’ refusal to abide by the CC&Rs which forced Bridgeport to commence court action for injunctive relief. The CC&Rs allowed appellants to submit plans for approval for the various improvements and modifications to their property. They refused to submit to these procedures, thus they “cannot be heard to complain about the form of relief ordered.” (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 45.) Injunctive relief is a proper means of enforcing covenants and restrictions on land. (See Arrowhead Mut. Service Co. v. Faust (1968) 260 Cal.App.2d 567, 582.) No error occurred.
We reject appellants’ argument that the trial court’s order failed to address appellants’ arguments in opposition to summary judgment. “The failure of the trial court to state reasons for granting summary judgment... [is] harmless ‘“since ‘“[i]t is the validity of the ruling which is reviewable and not the reasons therefore.”’” [Citation.]’ [Citation.]” (City of Oakland v. Hassey (2008) 163 Cal.App.4th 1477, 1494-1495.)
IV. Attorney fees
Appellants also appeal the trial court’s order determining Bridgeport to be the prevailing party and awarding Bridgeport the sum of $88,671 in attorney fees. Appellants argue that even if the summary judgment order is affirmed, the attorney fee award should nevertheless be reversed.
Appellants do not challenge the court’s award to Bridgeport of $1,903.21 in costs.
Generally, a trial court decision awarding attorney fees is reviewed for prejudicial abuse of discretion. (Baggett v. Gates (1982) 32 Cal.3d 128, 142.) However, “determination of whether the criteria for an award of attorney fees... have been satisfied amounts to... a question of law.” (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.) A trial court’s determination of the prevailing party should not be disturbed absent a clear abuse of discretion. (Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1158.)
We address appellants’ arguments below, and conclude that the court’s order finding Bridgeport to be the prevailing party, and granting the award of attorney fees, should be affirmed.
A. Assessment of attorney fees against the Petersons
Appellants’ first argument is that attorney fees should not have been assessed against the Petersons because they were never served with a request for resolution. As discussed in section III.A.2., ante, this was not an argument that was presented to the trial court for consideration in connection with the opposition to Bridgeport’s summary judgment motion. Nor was it raised in the opposition to Bridgeport’s motion for attorney fees. Bridgeport had no opportunity to present facts showing that the Petersons had actual notice or that the notice to the Martins served as notice to the Petersons due to their close family ties. Thus, we do not consider this issue on appeal.
B. Enforcement of violations not part of notice of hearing
Appellants argue that attorney fees should not have been awarded for the enforcement of alleged violations that were not a part of the notice of hearing. As discussed above in section III.C., ante, appellants did not explore this argument before the trial court in connection with the motion for summary judgment. Nor was it raised in opposition to the motion for attorney fees. Thus, the court had no opportunity to address the possibility of amendment of the pleadings or the exclusion of that issue from its ruling. Appellants may not raise the issue for the first time at this stage.
C. Determination of prevailing party
Appellants’ arguments regarding Bridgeport’s failure to follow its own CC&Rs, as well as the issue of waiver, are all discussed above in detail. (See sections III.A. and III.B., ante.) For the reasons set forth above, the trial court did not err in finding Bridgeport to be the prevailing party, and reversal of the attorney fee award on this ground is not warranted.
D. Entitlement to attorney fees
Appellants’ final argument involves entitlement to attorney fees. Appellants argue that the Martins are not “owners” of the property, thus would not be entitled to attorney fees under section 1354 had they prevailed. Because they would not be entitled to attorney fees, appellants argue, the Martins should not be required to pay attorney fees.
Section 1354 reads: “(a) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both. [¶] (b) A governing document other than the declaration may be enforced by the association against an owner of a separate interest or by an owner of a separate interest against the association. [¶] (c) In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.”
Both parties acknowledge that this issue was addressed in a prior matter, Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024. As explained in that case, the Martins and the Petersons entered into an agreement that the Martins would deal directly with Bridgeport concerning any issues regarding the property in question. The Martins and the Petersons executed a power of attorney to that effect, which was accepted by Bridgeport. (Id. at pp. 1027-1028.) Thus, Bridgeport acted properly in proceeding against the Martins to enforce the CC&Rs.
The plain language of section 1354, subdivision (c) requires an award of attorney fees under these circumstances. It provides that in an action to enforce governing documents, the prevailing party “shall be” awarded reasonable attorney fees. In this action to enforce the governing documents, Bridgeport properly proceeded against the Martins, and was properly determined to be the prevailing party. The trial court was required to award reasonable fees. No error occurred.
The cases cited by appellants are inapplicable. Californians for Population Stabilization v. Hewlett-Packard Co. (1997) 58 Cal.App.4th 273 (overruled on other grounds in Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163) involved the question of whether the denial of fees, sought under Labor Code section 218.5, was proper. However, the action had been brought under the unfair competition laws, which do not authorize attorney fees. The statute at issue provided for attorney fees under circumstances not present in the matter before the court, thus the denial was proper. (Id. at pp. 294-295.) The remaining cases cited by appellants involve a lack of reciprocity pursuant to contracts which allowed for attorney fees. (See Leach v. Home Savings and Loan Assn. (1986) 185 Cal.App.3d 1295; Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671; Glynn v. Marquette (1984) 152 Cal.App.3d 277; Alhambra Redevelopment Agency v. Transamerica Financial Services (1989) 212 Cal.App.3d 1370; Wilson’s Heating & Air Conditioning v. Wells Fargo Bank (1988) 202 Cal.App.3d 1326.) The attorney fees awarded in this matter are statutory, not contractual, thus these cases do not support appellants’ argument.
DISPOSITION
The order granting summary judgment is affirmed. The order awarding attorney fees is also affirmed. Bridgeport is entitled to its costs of appeal.
We concur: BOREN, P. J., DOI TODD, J.