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Hupp v. Solera Oak Valley Greens Association.

California Court of Appeals, Fourth District, Second Division

June 23, 2017

ARISTEA HUPP, Plaintiff and Appellant,
SOLERA OAK VALLEY GREENS ASSOCIATION et al., Defendants and Respondents.

         APPEAL from the Superior Court of Riverside County No. RIC1512779. John D. Molloy, Judge. Affirmed in part; reversed in part with directions.

          Aristea Hupp, in pro. per., for Plaintiff and Appellant.

          Richardson Harman Ober, Kelly G. Richardson, Theodore H. Dokko, Jonathan R. Davis; Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham, Stephanie J. Tanada and Amy Wong for Defendants and Respondents.

          CODRINGTON J.



         Plaintiff Aristea Hupp (Aristea) appeals judgment entered after the trial court granted defendants Solera Oak Valley Greens Association and City of Beaumont Animal Control Officer Jack Huntsman's[1] ex parte application to dismiss Aristea's first amended complaint (FAC) under the vexatious litigant provision, Code of Civil Procedure section 391.7.[2] Aristea contends the trial court's order granting Solera's ex parte application to dismiss deprived her of her due process rights to notice and an opportunity to be heard. Aristea also argues Solera waived its vexatious litigant defense by not raising it in its first responsive pleading. In addition, Aristea argues that under the Davis-Stirling Common Interest Development Act (Davis-Stirling Act), [3] she is authorized to seek recovery of damages sustained by her son, Paul Hupp (Paul), [4] from violations of Solera's Covenants, Conditions and Restrictions (CC&Rs).

         Before oral argument, this court requested the parties to provide supplemental briefing addressing the issue of whether the vexatious litigant statues, particularly section 391.7, can be applied to a complaint brought by a party who has not been declared a vexatious litigant, such as Aristea. As requested, both Aristea and Solera provided this court with supplemental briefing.[5]

         We affirm the judgment of dismissal as to all claims alleged in the FAC which were brought by or for the benefit of Paul, on the ground he has been declared a vexatious litigant. Because Aristea has not been declared a vexatious litigant, the judgment of dismissal is reversed as to all claims in the FAC that are solely personal to Aristea. The trial court is directed on remand to order stricken from the FAC all allegations mentioning Paul and all claims benefiting or seeking recovery on behalf of Paul.



         On January 7, 2014, in an unrelated case, the Riverside County Superior Court entered an order declaring Paul Hupp a vexatious litigant under section 391. The court further ordered that Paul is required to “acquire a prefiling order from the supervising judge with each and every future filing of any complaint or petition as an In Pro Per Plaintiff, against any party, in any Court in California, upon a showing of evidence supporting claims as the judge may require.”

         Paul and Aristea's Complaint Filed in the Federal District Court

         In August 2015, Aristea and her son, Paul, (the Hupps) filed a complaint, in propria persona, in the federal district court against Solera (case No. EDCV15-01693-VAP-SP). Defendant Solera Oak Valley Greens Association oversees a planned, gated, development in the City of Beaumont (the Solera property). The association is a California corporation that operates through a board of directors on behalf of its shareholders, which include all Solera property owners.

         The Hupps alleged in their federal complaint the following facts. The Solera property has five entrances and six entry gates. Five of the gates are for residents and one entry gate is for guests. The resident gates are activated by remote control. The guest entry gate is not controlled by remote control and may require waiting in line for entry onto the Solera premises. Aristea owns two Solera properties.

         At the end of 2014, Solera adopted a new rule added to Solera's CC&Rs, which required pit bulls to be muzzled when walked on the common areas of the Solera property. In November 2014, the Hupps notified Solera that they objected to the muzzle rule because the rule incorrectly stated pit bulls are a dog breed designated by the Centers for Disease Control and Prevention as “the most ‘dangerous' dog” and therefore must be muzzled when on the Solera streets or common areas. The Hupps further asserted the muzzle rule failed to state how to determine if a dog was a pit bull, who would make that determination, and how the rule would be applied.

         The Hupps's federal complaint alleged that in December 2014, the Hupps, Solera board members, and management company employees met regarding enforcement of the muzzle rule against the Hupps. The Hupps stated Solera could not impose any rule, such as the muzzle rule, that singled out dogs by breed. Thereafter the Hupps continued to walk their dogs on the Solera property without a muzzle. Solera notified the Hupps that they were violating the muzzle rule. The Hupps responded by letter, objecting to the muzzle rule. In April 2015, Solera imposed a $200 fine on Aristea for walking her dogs in violation of the muzzle rule. The Hupps informed Solera they objected to the fine and refused to pay it. Two hours before a discipline hearing on August 5, 2015, the Hupps emailed a letter to three Solera board members, stating that the muzzle rule was unlawful and that the Hupps were going to take legal action.

         Five days after the hearing, Solera deactivated the Hupps's entrance gate remote controls, preventing the Hupps from entering the Solera property through the five gates operated by remote control. The Hupps refer to this action by Solera as the “lock out.” As a consequence of the lock out, the Hupps were required to enter the Solera property through the gate used by guests. This required the Hupps to wait in line to enter.

         The Hupps's federal complaint included causes of action for violation of their civil rights and due process rights under the constitution and the Civil Rights Act (42 U.S.C. § 1983). The Hupps requested declaratory and injunctive relief regarding the “lock out” and against the “muzzle rule.” The complaint also included causes of action for defamation of the Hupps and their dogs, and intentional infliction of emotional distress.

         In October 2015, the federal district court dismissed the Hupps's complaint without leave to amend on the grounds the Hupps failed to state a federal claim and the federal court would not exercise supplemental jurisdiction over the Hupps's state law claims.

         Aristea's Complaint Filed in the Riverside Superior Court

         Shortly after the dismissal, Aristea filed, in propria persona, a complaint in the instant case (Complaint) in the Riverside County Superior Court. Aristea remained in propria persona throughout the remainder of the trial court proceedings and during the instant appeal. The facts are identical to those alleged in the Hupps's federal court complaint, which was dismissed. In addition, Aristea alleged that in March 2014, a Solera resident who lived across the street from the Hupps, installed surveillance cameras pointed at the Hupps's residence. This allegedly violated the Solera CC&Rs, and Solera failed to enforce the CC&Rs in this regard. The Hupps further alleged that on February 10, 2014, Solera management company employee, Timothy Taylor, followed Paul around the Solera property and filmed him as he was walking his two dogs. Another Solera management company employee, Samuel Rojas, on 12 occasions, beginning on March 24, 2015, through August 31, 2015, also followed Paul around the Solera property and filmed him walking his dogs. On July 25, 2015, the Hupps requested to review all of Solera's contracts and various financial information. Solera denied the Hupps's request.

         The Hupps's Complaint included causes of action for declaratory and injunctive relief regarding the lock out and muzzle act, private nuisance, violation of the Davis-Stirling Act, invasion of privacy, intentional infliction of emotional distress, and defamation. Although Aristea was the only named plaintiff in the Complaint caption, both Paul and Aristea were named as plaintiffs throughout the Complaint and in the prayer for relief.

         On November 24, 2015, Solera, specially appearing, filed a motion to quash service of summons and Complaint (motion to quash) on the ground service of the Complaint on Solera was improper in part because Paul, who was a party to the action, served the Complaint on Solera. Solera argued that, although Paul was not listed in the caption of the summons or Complaint, the Complaint allegations indicated he was a party to the action. Solera asserted in its motion to quash that “[t]here is no escaping the fact that Paul Hupp is a Plaintiff in this lawsuit, despite his efforts to evade the Court's vexatious litigant order.” On December 24, 2015, the trial court granted Solera's motion to quash and granted the Hupps leave to amend the Complaint.

         First Amended Complaint

         On January 12, 2016, Aristea filed a first amended complaint (FAC), the operative complaint in this matter. Allegations in the original Complaint referring to Paul as a plaintiff were deleted. As with the original Complaint, only Aristea was named as a plaintiff in the caption. Instead of alleging in the first paragraph of the Complaint that both Aristea and Paul were in propria persona plaintiffs, the FAC alleges only Aristea is a plaintiff, suing in propria persona. However, most of the allegations in the FAC remained the same as those in the original Complaint, with minimal changes and with the addition of new claims alleging Davis-Stirling Act violations. The FAC includes numerous references to Paul and “plaintiffs.” The FAC also includes defamation and private nuisance causes of action in which Paul, rather than Aristea, is the subject of the claims.

         Notice of Vexatious Litigant Order

         Specially appearing on January 26, 2016, Solera filed in the instant case a notice of the January 7, 2014, vexatious litigant order pursuant to section 391.7(c). The notice was served on the Hupps by overnight mail on January 26, 2016. It stated: “PLEASE TAKE NOTICE that the above-captioned lawsuit by Plaintiffs Aristea and Paul Hupp[] was filed in violation of California's vexatious litigant statutes. Specifically, Paul Hupp was deemed a vexatious litigant by the Riverside Superior Court on or about January 7, 2014, in the matter of Hupp v. Judith L. Beyl, et al., Riverside Superior Court Case No. RIC1216945. (RJN, Exhibit A). Despite such order, Plaintiff Paul Hupp has filed the Complaint and First Amended Complaint in the above-captioned matter. Pursuant to Code of Civil Procedure § 391.7(c), the filing of this notice shall automatically stay this litigation. (CCP §391.7(c)). The litigation must then be automatically dismissed unless the Plaintiffs, within ten (10) days of the filing of this notice, obtain an order from the presiding justice or presiding judge permitting the filing of the litigation. (Id.)”

         In a footnote, the notice states that “Plaintiff Paul Hupp is listed in the body of the Complaint as a ‘Plaintiff, ' and multiple causes of action relate only to damages allegedly suffered by Plaintiff Paul Hupp. However, Paul Hupp is not named in the ...

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