(Super. Ct. No. 39201000237489CUPTSTK)
The opinion of the court was delivered by: Duarte , J.
Quail Lakes Owners Assn. v. Kozina CA3
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Quail Lakes Owners Association (the Association) filed a petition seeking an order modifying its governing laws to reduce a supermajority voting restriction, a special proceeding authorized by Civil Code section 1356 (§ 1356). The trial court conducted a hearing and granted the Association's amended petition. Objector Vladimir F. Kozina (Kozina) timely filed this appeal.*fn1
On appeal, Kozina contends the manner of notice of the hearing violated due process, and the trial court abused its discretion in granting the amended petition. We disagree and shall affirm.
The organic charters for many older homeowner associations required supermajority votes for amendments, but voter apathy and other reasons often make achieving such a supermajority impractical. (See Blue Lagoon Community Assn. v. Mitchell (1997) 55 Cal.App.4th 472, 477; 2 Sproul & Rosenberry, Advising Cal. Common Interest Communities (Cont.Ed.Bar 2011) Amending the Governing Documents, § 9.30, p. 660.) Section 1356 creates a court procedure for lowering the supermajority requirement.
Section 1356, "part of the Davis-Stirling Common Interest Development Act (the Act), provides that a homeowners association, or any member, may petition the superior court for a reduction in the percentage of affirmative votes required to amend the [governing documents] if they require approval by 'owners having more than 50 percent of the votes in the association . . . .' [Citation and fn.] The court may, but need not, grant the petition if it finds all of the following: Notice was properly given; the balloting was properly conducted; reasonable efforts were made to permit eligible members to vote; '[o]wners having more than 50 percent of the votes . . . voted in favor of the amendment'; and '[t]he amendment is reasonable.'" (Peak Investments v. South Peak Homeowners Assn., Inc. (2006) 140 Cal.App.4th 1363, 1366-1367.)
On March 19, 2010, the Association filed its petition, alleging an inability to make prudent changes to its "Covenants, Conditions and Restrictions" (CCRs), despite majority support among the homeowners, due to a supermajority requirement. The original and proposed CCRs were attached. The petition alleged that in a 2009 election, of 1,958 "membership votes," 1,409 votes were cast, of which 1,209 voted in favor of the new CCRs.
On June 17, 2010, an objection was filed, in part alleging the defeat of the new CCRs in the prior election was due to a "strong campaign in opposition" based on the unreasonableness of the proposed governance changes. The tenor of the objection was that there was a rift in the community; however, Kozina was the only objector. The objection contended the evidence attached to the unverified petition was not properly authenticated, and contended the manner of notice was insufficient to satisfy due process.*fn2
On June 23, 2010, Thomas G. Murphy, the Association's manager, filed a declaration responding to the opposition. Murphy's declaration, with attachments, tended to show that the new CCRs had been crafted with notice and opportunity for comment, but acknowledged an apparent rift within four sub-associations, one of which, the "Neighborhood" association, declined to participate in crafting the new CCRs.
On July 1, 2010, the petition was denied without prejudice for lack of evidence. The petition was not verified, and the Association's counsel did not attach any declarations to it, as is recommended. (2 Sproul & Rosenberry, supra, § 9.34, p. 664.) The trial court explicitly noted these deficiencies, and declined to allow live testimony to cure them. The court set dates for the filing of an amended petition, opposition and reply, as well as date for hearing on the ...