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Affan v. Portofino Cove Homeowners Association

October 29, 2010


Appeal from a judgment of the Superior Court of Orange County, Robert D. Monarch, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed in part, affirmed in part, and remanded. (Super. Ct. No. 05CC11160).

The opinion of the court was delivered by: Aronson, J.



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 In the unpublished portion of this opinion, we affirm the damage award for plaintiffs on the equitable servitude claim.


Recurrent Plumbing Problems

In 1986, Akil and Cenan Affan bought unit 107 in the Portofino Cove Condominiums as a vacation home.*fn2 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.

Upon discovering each sewage backup, the Affans reported the problem to the property manager for the complex. They also consistently reported each plumbing incident to at least one member of the board of directors of defendant Portofino Cove Condominium Association (the Association), the common interest association for the complex. After each reported backup, the Association manager hired a plumber to snake the Affans' drain line.

The Affans' unit is on the first floor of a three-story building with an underground parking garage. Each ground floor unit shares vertical drain pipes with the units stacked above. The vertical drain pipes run through the shared common area walls and connect to lateral drain pipes running below the units and along the ceiling of the underground garage. Two of the Affans' first floor neighbors are members of the board of directors and also experienced similar sewage problems.

After finding a sewage backup in April 2003, Cenan wrote a letter to the Association's board of directors. In the letter, she complained of the persistent problem and reported that the plumber who responded to the latest call had recommended annual maintenance of the drain lines serving the building.

When the kitchen sink backed up on April 21, 2005, Akil telephoned the onsite property manager, Kevin Brown, to report the problem. Akil told Brown, an employee of defendant Huntington West Properties (Huntington West), that sewage backup into his unit was "a very chronic situation," and that he and his wife had complained in a letter to the Association, but had received "no answer." He requested that management send a "master plumber" to investigate the cause of the backups.

Huntington West had become the Association's managing agent in early 2004. Brown testified that in January or February of 2005, the Association began to ponder whether it might save money by hiring a plumber to regularly maintain the main drain lines, rather than continually responding in a "piecemeal" fashion to backup problems. The board directed Brown to develop a "scope of work" for a regular maintenance contract for the complex, and to collect bids. The board asked him "to figure out what direction they should go in."

There is some documentary evidence suggesting the Association earlier considered arranging for maintenance of a main plumbing line. Minutes from an Association board meeting in 2001 stated, "The board would like to see a bid on a year contract" to "hydro[-]jet" a main line, which meant blasting the lines with a high-pressure stream of water. But no evidence showed the board ever contracted for that maintenance work, or took any action to maintain the drain lines before May 2005.

When Akil reported the April 21, 2005, sewage backup to Brown, the property manager suggested that Akil attend the Association board meeting the next day to discuss the issue, which he did. After listening to Akil's complaint, the board told him it had "signed off on a maintenance agreement" for the main plumbing lines at the complex. According to trial testimony, the Association entered into a five-year contract with Rescue Rooter, a plumbing contractor, to perform annual, "routine" maintenance on the main plumbing lines.

The May 14, 2005 Plumbing Disaster

On May 3, 2005, Rescue Rooter conducted a hydro-jet cleaning of the main lines. Less than two weeks later, on May 14, a major sewage backup damaged the Affans' condo. Kitchen sink debris and grease from the upstairs units erupted in the Affans' master bathroom sink, tub, and vanity closet. The sewage also overflowed onto the floors of the master bathroom and adjoining bedroom.

In response, Huntington West hired Rescue Rooter to snake the bathroom drain and retained Emergency Service Restoration, Inc., to clean up the spill. The emergency clean up company extracted waste water, removed and disposed of the carpet, carpet pad, damaged baseboard and drywall, and steam cleaned and sanitized surfaces, and placed air scrubbers, dryers, and dehumidifiers throughout the unit.

In the immediate aftermath of the damage to the Affans' condominium, Association board members assured them the Association would "take care" of the situation. Brown met with the Association's casualty insurance adjuster to find out "what needed to be done," but apparently the Association encountered a "snag" with its insurer over coverage issues. Specifically, because the Affans had begun experiencing plumbing backup problems in 1999, and the Association switched to a new insurer in 2000, a dispute arose concerning which of the two insurers would cover the damage resulting from the 2005 eruption.

When the Affans filed their complaint against the Association and Huntington West on October 12, 2005, the defendants had not done any additional repair or remediation work beyond the emergency clean up of the unit. The parties agree the unit was uninhabitable.

The Affans' complaint stated five causes of action against the Association: breach of the CC&R's (the covenants, conditions, and restrictions governing the Association and its members), enforcement of equitable servitude, negligence per se, negligence, and private nuisance. The essence of their claims was that the Association had a duty under the CC&R's, the common law, and the Civil Code,*fn3 to maintain and repair the condominiums' common areas, including the sewer pipes, and the Association's failure to do this resulted in the sewage eruption that damaged the Affans' unit. The plaintiffs further claimed the Association breached its duty to promptly repair and remediate that damage. Finally, they alleged the sewage eruption created a private nuisance that the Association failed to abate. The Affans sued Huntington West only for negligence and private nuisance based on its failure both to prevent and to clean up the sewage eruption.

Over the next few months, the Affans received various bids for the remediation and restoration work needed in the unit. But they did not hire anyone to make the necessary repairs because the Association had not yet investigated the cause of ...

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