Park Row Community Assn. v. Shirk

Filed 7/2/07 Park Row Community Assn. v. Shirk CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kevin A. Enright, Judge. Affirmed in part with directions.

Richard Shirk appeals from a summary judgment granted in favor of Park Row Community Association (Park Row) on Park Row's complaint for injunctive and declaratory relief. Park Row sought to enjoin Shirk from constructing certain improvements to his condominium unit without approval by Park Row's Board of Directors and obtain a judicial declaration of the parties' rights under Park Row's Declaration of Covenants, Conditions and Restrictions (CC&Rs). The court entered judgment in part permanently enjoining Shirk from commencing, continuing or completing any construction within or on the exterior of his unit, ordering him to permit Park Row to inspect any construction already completed, and restraining him from making unapproved modifications and/or alterations to his unit without Park Row's express written consent. On appeal, Shirk contends summary judgment was improper because (1) Park Row did not meet its burden of proving it exercised its power in a fair and nondiscriminatory manner; (2) a "nonwaiver" provision in the CC&Rs is void as against public policy, unconscionable and unenforceable; (3) Park Row had no authority to demand inspections under the CC&Rs; (4) he raised triable issues of fact as to whether there was any justiciable case or controversy, barring summary judgment on the declaratory relief cause of action; and (5) Park Row was not entitled to file suit because it did not comply with Civil Code section 1354.^[1] Shirk further argues the judgment violates his rights under the CC&Rs and section 1360.

We reject all but the latter of Shirk's contentions. As for the latter, we agree the trial court's injunction sweeps too broadly because it arguably bars Shirks from "replac[ing] . . . appliances and fixtures which require no structural changes in the building" without seeking and obtaining approval by Park Row's Board of Directors. We therefore affirm the judgment in part and remand the matter to the trial court to fashion a properly limited injunction.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

Shirk is the owner of condominium unit No. 44 within the common interest development known as Park Row. Park Row is a nonprofit mutual benefit corporation comprised of Park Row owners. Park Row's condominiums and common areas are subject to the CC&Rs, which contain provisions establishing a procedure by which owners must request approval and submit plans for contemplated improvements from Park Row's Board. Specifically, Article V, Section 19 of the CC&Rs provides: "Application for Approval of Improvements. Any Owner, except the Declarant and its designated agents, proposing to make any improvement of any kind whatsoever, excepting the replacement of appliances and fixtures which require no structural changes in the building, shall obtain the prior written approval of the Board, shall apply for approval by delivering to such Board a written application, which the Board shall acknowledge receipt thereof, describing the nature of the proposed improvement together with the following documents and information, in such number of copies as said Board may require: [] (1) Floor plans of the affected property showing the location of existing and proposed improvements; [] (2) Drawings showing all elevations; []

(3) The Owner's proposed construction schedule. [] The Board may require that every written application for approval in connection with any proposed improvement be accompanied by an inspection fee to be paid to Park Row in an amount not to exceed $50.00." The CC&Rs also address the Board's right to inspect improvements. Article XII of the CC&Rs contains a section entitled "Enforcement" (hereafter the nonwaiver clause), providing: "The Association, Declarant or any Owner shall have the right to enforce, by any proceeding at law or equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by this Declaration. [] . . . Failure by the Association, Declarant or any Owner to enforce any provision of this Declaration shall in no event be deemed a waiver of the right to do so thereafter."

In the Spring of 2003, Shirk prepared applications for improvements to his unit including extension of a loft; replacement of a bathtub; and installation of an air conditioner, additional window, and external electrical outlets. In July 2003, Shirk advised Park Row's Board of Directors (the Board) that he intended to begin certain improvements to his unit; that he would not be submitting plans until loan funds were available, but he wanted "immediate approval to all of the improvements that are similar to improvements made in other units." The Board advised Shirk that absent submission of required plans, his proposed improvements would not be approved.

In August 2003, Shirk wrote to the Board expressing anger at the return of his requests for improvements and claiming that for years, the Board had approved similar improvements (installation of air conditioners, loft extensions, window installation, bathtub replacement and installation of outside electrical outlets) with a minimum of conditions. Shirk wrote: "Therefore, I no longer intend to wait for approval of the above items. You are simply notified that I will make the above improvements. If a building permit is required, I will get one. If I use a contractor, then I will comply with the insurance requirements that are standard to Park Row." Shirk insisted that the Board give its immediate approval of an exhaust fan and accused it of acting in an arbitrary and capricious manner. Shirk stated that he believed the Board's demand for $250 to have an architect inspect his requests was illegal; that the Board had no authority to charge owners for improvements to the interiors of their units.

In September 2003, Park Row sent Shirk's counsel a letter stating Shirk had failed to comply with the CC&Rs to obtain Board approval for his proposed improvements, and refused to submit the architectural review fee required of all owners applying for approval of contemplated construction. It offered to resolve the dispute through mediation under section 1354 to be shared equally between Shirk and Park Row, and demanded in the interim that Shirk cease all ongoing construction.

Shirk proceeded with some improvements to the interior of his unit. In October 2003, Shirk's attorney advised Park Row that Shirk was not engaging in changes or improvements to the common area, structural changes within or around his condominium unit, or construction activity that would require Park Row's approval. However, Shirk's counsel stated he was conducting interior remodeling that did not require Park Row's prior approval, including replacing an existing tub in his bathroom. Acknowledging that Board approval would be required for the size, type and location of air conditioning, Shirk's counsel stated that Shirk would not install such air conditioning or install a new window without such approval. He identified Shirk's completed or ongoing remodeling activities, including replacing an existing bathtub, which he asserted did not require prior approval. Counsel acknowledged the importance of observing the CC&Rs to the extent they governed the common area or structural integrity of the building.

Park Row sued Shirk seeking injunctive and declaratory relief, alleging that unless Shirk was enjoined, his continued violations of the CC&Rs would frustrate Park Row in its ability to fulfill its duties of equal enforcement and maintenance. Park Row alleged a controversy had arisen in that it maintained Shirk was required to comply with the CC&Rs and it was entitled to a "mandatory" injunction preventing construction of improvements absent Board approval. It asked the court to interpret the CC&Rs and issue a judicial declaration of the parties' rights under them. Park Row also wrote Shirk's attorney requesting access to Shirk's condominium for an inspection by Park Row's managing agent to ensure he had not commenced improvements requiring Park Row approval. Shirk answered Park Row's complaint and asserted affirmative defenses including the doctrines of comparative fault, assumption of risk, res judicata, lack of notice on Shirk's part, and unclean hands.

Park Row moved for summary judgment or alternatively summary adjudication on its claims for injunctive and declaratory relief. It submitted a declaration from its current Board president Ricky Maveety, as well as declarations from its community manager, John Kalas and past Board president David Hustwick. Pointing to the section of the CC&Rs requiring Board approval for improvements, Maveety stated that an "Application for Architectural Improvement needs to be submitted to the Board for approval for improvements that affects [sic] the common elements and/or structural/mechanical systems" and that the type of improvement subject to the requirement "includes, but is not limited to: the installation of an air conditioner on the common area roof; the extension of a loft; the installation of an additional window in a common area wall; the installation of a whirlpool tub; and the installation of external and internal electrical outlets." Maveety further averred that in September 2004 (about 11 months after Park Row filed suit against Shirk), she had inspected Shirk's unit and determined at that time that he had not commenced construction in violation of the CC&Rs. She continued: "However, Mr. Shirk has repeatedly stated his intentions to commence construction without obtaining Board approval (he admits as much in his verified Cross-Complaint), and it is possible that the only thing stopping him is this lawsuit."

Maveety stated that Park Row sought summary adjudication of several issues, including "[t]hat an Application for Architectural Improvement needs to be submitted to the Board for approval for improvements that affects [sic]the common elements and/or structural/mechanical systems, this includes, but is not limited to: the installation of an air conditioner on the common area roof; the extension of a loft; the installation of an additional window in a common area wall; the installation of a whirlpool tub; and the installation of external and internal electrical outlets." Maveety also stated Park Row sought an adjudication "[t]hat Mr. Shirk should be enjoined and restrained from commencing, continuing or completing any and all construction that makes structural changes to the interior and/or exterior of the building (excepting the replacement of appliances and fixtures which require no structural changes in the building), without first submitting an application for approval, along with the plans and specification and other documentation, as set forth in Article V, Section 19 of the [CC&Rs], and receiving the written Board approval prior to commencing work." She pointed out that in January 2005, Shirk had submitted another letter to Park Row's Board in which he requested that the Board "conditionally or unconditionally" approve his applications; that he would be doing the work himself and "will not pay any fee or sign any hold harmless agreement since fees, plans and permits have been waived for years. Where a building permit is required I will obtain it and provide the Association with a copy of the permit."

Shirk opposed the motion, arguing Park Row was not entitled to summary judgment of its claim for injunctive relief because he had not commenced any of his proposed improvements and thus his actions did not constitute imminent wrongful or harmful conduct to be enjoined. He also argued Park Row's enforcement of the CC&Rs was arbitrary and inconsistent. Shirk presented evidence consisting of his own declaration, 52 homeowner applications for improvement, and letters by Park Row's management company requesting payment of processing fees. In his opposing declaration, Shirk attempted to advance assertions about improvements made by Park Row's past president and other homeowners, and lodged copies of various applications for improvement submitted between the years 2000 and 2005.

In response, Park Row argued Shirk did not need to commence or complete construction to justify its requested permanent injunction as he had threatened to make his proposed improvements without Board approval. It submitted an excerpt of Shirk's September 2005 deposition in which he admitted he already had a plumber replace his bathtub, requiring modification of the pipes behind the wall to install a new valve. Shirk admitted that the pipes and plumbing within the walls were Park Row's responsibility. Shirk also testified in his deposition that his proposed exhaust fan would be placed on top of his roof and would require penetrating the roof; his proposed window would traverse common area through the exterior stucco of the building; and his proposed air conditioner would also be located on the roof, which he conceded was common area. Based on Shirk's discovery responses as well as his failure to submit a separate statement of disputed or undisputed material facts, his failure to plead selective enforcement in his answer, and the enforcement provision of the CC&Rs relieving Park Row from waiver, Park Row argued it met its burden to establish the need for injunctive relief.

Striking almost the entirety of Shirk's declaration and opposing separate statement on Park Row's objections, the court granted summary judgment. It ruled Park Row had met its initial burden to show (1) it was entitled to an injunction "requiring that [Shirk] submit plans and pay fees under the [Park Row] CC&Rs and [section] 1354 et seq. before commencing any improvements to his unit which alter any common area space" and

(2) an actual dispute had arisen over the parties' interpretations of the CC&Rs to entitle it to declaratory relief. It rejected Shirk's selective enforcement arguments on grounds Shirk had not pleaded either selective enforcement or waiver and/or estoppel as affirmative defenses, and on further grounds that the CC&Rs non-waiver provision rendered the argument "moot[]." The court ruled Shirk failed to meet his opposing burden to show material questions of fact via a proper separate statement.

The court entered judgment permanently enjoining Shirk from commencing, continuing or completing any construction either within or on the exterior of his unit, ordering him to permit Park Row to inspect any construction already completed, and restraining Shirk from making unapproved modifications and/or alterations to his unit without Park Row's express written consent and from further violation of the CC&Rs. The court also ordered Shirk to comply with all other provisions in the CC&Rs, including maintaining his unit in an approved and acceptable condition in accordance with its terms and conditions. Shirk appeals.^[3]

DISCUSSION

I. Standard of Review

As the party moving for summary judgment, Park Row bears an overall burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850; Woodridge Escondido Property Owners Ass'n. v. Nielsen (2005) 130 Cal.App.4th 559, 578.) A plaintiff moving for summary judgment has met its burden of showing that there is no defense to a cause of action if it has proved each element of the cause of action entitling it to judgment on that cause of action. (Aguilar, at p. 849.) " 'Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant . . . may not rely upon the mere allegations or denials' of his 'pleadings to show that a triable issue of material fact exists but, instead,' must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.' " (Ibid, quoting Code Civ. Proc., 437c, subd. (p)(1).)

In reviewing the trial court's decision, we consider all of the evidence offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477; Aguilar, supra, 25 Cal.4th at p. 860; Kahn v. East Side Union High School District (2003) 31 Cal.4th 990, 1003.) In doing so, we apply the same three-step analysis required of the trial court. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1431-1432; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662.) After identifying the issues framed by the pleadings, we determine whether the moving party has established facts justifying judgment in its favor. If the moving party has carried its initial burden, we then decide whether the opposing party has demonstrated the existence of a triable, material fact issue. (Bono, at p. 1432.) We strictly construe the moving party's evidence and liberally construe the opposing party's evidence (Gafcon Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1402 (Gafcon)) without weighing the evidence or conflicting inferences. (Aguilar, at p. 856; Code Civ. Proc., 437c, subd. (c); WoodridgeEscondido Property Owners Ass'n. v. Nielsen, supra,130 Cal.App.4th at pp. 567-568.)

The propriety of application of summary judgment to declaratory relief lies in the trial court's function to render such a judgment when only legal issues are presented for its determination. (Gafcon, supra, 98 Cal.App.4th 1388.) We apply a de novo standard of review to a summary judgment when, on undisputed facts, the judgment is based on the interpretation or application of the terms of CC&Rs. (E.g. Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 389-390 [holding in the context of an insurance policy].)

CC&Rs should be read according to the usual rules for the interpretation of contracts, with a view toward enforcing the reasonable intent of the parties. (14859 Moorpark Homeowner's Assn. v. VRT Corporation (1998) 63 Cal.App.4th 1396, 1410; 8 Miller & Starr, Cal. Real Estate (3d ed. 2001) 24:16, p. 57.) The language governs if it is clear and explicit, and we interpret the words in their ordinary and popular sense unless a contrary intent is shown. (Franklin v. Marie Antoinette Condominium Owners Assn. (1993) 19 Cal.App.4th 824, 829;  1644.) The parties' intention is to be ascertained from the writing alone if possible. (WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1709.) Further, "[a] court must view the language in light of the instrument as a whole and not use a 'disjointed, single-paragraph, strict construction approach' [citation]. If possible, the court should give effect to every provision." (Ticor Title Ins. Co. v. Rancho Santa Fe Assn. (1986) 177 Cal.App.3d 726, 730.) Interpretation of the CC&Rs must comport with the principle that "[a] contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties." ( 1643; see Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 961.)

II. Park Row Met its Summary Judgment Burden

Relying on Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766 (Ironwood), Shirk contends Park Row did not meet its summary judgment burden to show it exercised its power in a fair and nondiscriminatory manner. He also argues that even though it was not his burden to do so, he nevertheless presented evidence demonstrating Park Row selectively enforced its CC&Rs with respect to homeowners' applications for improvements. We address the issue of Park Row's asserted selective enforcement in part III post.

As for whether Park Row met its initial summary judgment burden, we more particularlyexamine Park Row's complaint and Shirk's answer, which, as stated, frame and define the issues presented in summary judgment proceedings. (Residential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal.App.4th 807, 829.) Park Row's cause of action for injunctive relief is based on allegations that Shirk advised the Board he intended to proceed with specified improvements without submitting plans or obtaining Board approval and he would not permit the Board to inspect the improvements on completion. Park Row alleged that unless enjoined, Shirk's continued violation of the CC&Rs would frustrate it in its ability to fulfill its duties and responsibilities of equal enforcement and maintenance. It also alleged Shirk's improvements "may negatively impact the property value of neighboring lots by materially altering the appearance of the building in which the condominium is located." Park Row sought a judicial declaration "that [Park Row] is entitled to a mandatory injunction preventing the construction of improvements absent Board approval."

Ironwood involved an association's law suit for declaratory and injunctive relief against a homeowner who had planted eight tall palm trees in his yard without filing a plan and obtaining prior association approval. (Ironwood, supra, 178 Cal.App.3d at pp. 768-769.) The association obtained summary judgment on causes of action seeking an interpretation of the CC&Rs and a mandatory injunction compelling removal of the palm trees. (Ironwood, at pp. 768-769, 771.) Liberally construing the CC&Rs under section 1370^[4]and interpreting them as a matter of law, the court of appeal addressed the declaratory relief aspect, affirming the trial court's decision that the CC&Rs required the homeowners to submit a plan for their proposed landscaping. (Ironwood, at p. 771.) However, it reversed summary judgment on the association's request for a mandatory injunction ordering the homeowners to remove the trees, characterizing the association's request as "in effect a request to enforce an administrative decision on its part disapproving the palm trees as not meeting the standards set forth in . . . CC[&]Rs." (Id. at pp. 771-772.) The court held that an association seeking to enforce CC&Rs with a mandatory injunction must show it has followed its standards and procedures prior to pursuing such a remedy, that the procedures were fair and reasonable, and the decision to demand removal was made in good faith, and not arbitrary and capricious. (Ironwood, at p. 772.) " 'The criteria for testing the reasonableness of an exercise of such a power by the owners' association are (1) whether the reason for withholding approval is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner.' " (Ibid., quoting Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670, 683-684 (Laguna Royale).)

The Ironwood court found undecided questions of material fact because the association had not presented evidence that its architectural control committee ever considered whether the trees violated the CC&Rs or made any formal or informal findings on the matter. (Ironwood, supra, 178 Cal.App.3d at pp. 772-773.) The court also noted that even if the basis for the injunction had been solely the homeowner's failure to submit plans for approval, the record would still be deficient because there was nothing showing "final board action." (Id. at p. 772, fn. 5.) It ruled as a matter of law, acts by the association without appropriate decisions by the governing board or the proper committee did not constitute a reasonable application of the CC&Rs to the parties' dispute, particularly in view of the fact the CC&Rs imposed very specific duties, procedures and standards for the consideration of such disputes. (Id. at p. 773.) Having failed to establish its actions were regular, fair and reasonable, the association, as the moving party, did not show it was entitled to judgment as a matter of law to justify summary judgment for a mandatory injunction. (Ibid.)

Based on Ironwood,Shirk maintains that summary judgment was improperly granted in Park Row's favor because, like the association in Ironwood, Park Row did not establish in its moving papers that it followed its own standards and procedures by presenting evidence of its Board's actions, whether by letter, meeting records or any other evidence, to demonstrate it considered whether Shirk's applications should have been approved. We are not persuaded.

This case does not present the same summary judgment deficiency as in Ironwood because of the differing nature of Park Row's requested injunctive relief. Park Row did not seek a mandatory injunction compelling Shirk to remove nonconforming improvements as in Ironwood, it sought to enjoin him from constructing improvements absent filing an application with accompanying plans to the Board and obtaining Board approval. Unlike Ironwood, where the association was required to demonstrate its reasons why it had concluded the trees were nonconforming so as to require their removal, this case does not reach the question of whether the Board did or did not approve his requests on the merits; it requires an understanding of the nature of Shirk's proposed improvements and an interpretation of Park Row's CC&Rs to determine whether he was required to submit an application and supporting documents in accordance with Article V, section 19. On summary judgment, Park Row made an unchallenged showing via Maveety's declaration setting forth the nature of Shirk's requests and her interpretation of the CC&Rs. The trial court was entitled on its own to interpret the CC&Rs as a matter of law, as is this court on appeal. (Dolan-King v. Rancho Santa Fee Assn. (2000) 81 Cal.App.4th 965, 974.)

On our de novo interpretation of the relevant approval provision of the CC&Rs at issue and based upon Maveety's declaration, we hold Park Row met its summary judgment burden of producing evidence establishing it acted in accordance with its CC&Rs and in a fair and nondiscriminatory manner in refusing to approve Shirk's proposed improvements based on his failure to submit a complete application.^[5] Article V, Section 19 of Park Row's CC&Rs requires any owner to submit an application with supporting plans, drawings and a construction schedule, and obtain prior written Board approval for improvements "of any kind whatsoever,excepting the replacement of appliances and fixtures which require no structural changes in the building . . . ." (Italics added.) While the CC&Rs do not further define the terms within the italicized phrase, the CC&Rs do define the common area and living unit space, making it clear that the walls of the building are common area.^[6] We resort to common dictionary usages of the words to reach the conclusion that any alteration of a common area wall, i.e., the building's structure, will constitute a structural change. (See Merriam-Webster's Collegiate Dict. (11th ed. 2006), pp. 206, 1238 [defining "change" as including alteration, transformation or substitution; "structure" as "something (as a building) that is constructed"; and "structural" as "of, relating to, or affecting structure"].) Under a plain reading of Article V, section 19, any improvement that is not the mere replacement of an appliance or fixture requires prior written board approval. And, under our liberal interpretation of the provision ( 1370), where Shirk's improvements constitute the replacement of an appliance or fixture (such as a bathtub), if the process of replacement entails some alteration of a common area wall or other common area during the course of the work, the CC&Rs require Board approval.

Here, Park Row showed Shirk had threatened to undertake projects that constituted more than the mere replacement of appliances and fixtures, and that Shirk had already completed one project (replacing a bathtub with a whirlpool tub) that entailed penetrating a wall and modifying pipe within it. Our liberal interpretation of the CC&Rs requires us to conclude that these actions constitute "structural changes in the building" within the meaning of the CC&Rs. Shirk makes no arguments in his appellate briefs advancing any other interpretation.^[7] Nor did he present any facts via a separate statement of disputed facts in opposition demonstrating a triable issue as to whether his proposed improvements fell outside of the ambit of the CC&Rs. He did not meet his opposing burden through his declaration, the majority of which was excluded on Park Row's evidentiary objections. Shirk does not contend the court erred in excluding his evidence.

With this showing, Park Row also established it was entitled to summary judgment for appropriate permanent injunctive relief. To qualify for a permanent injunction, the plaintiff must prove (1) the elements of a cause of action involving the wrongful act sought to be enjoined (here, declaratory relief in determining the rights of the parties under the CC&Rs); and (2) the grounds for equitable relief. (San Diego Unified Port Dist. v. Gallagher (1998) 62 Cal.App.4th 501, 503-504, see also Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084; Code Civ. Proc.,  526.) " 'A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action . . . against a defendant and that equitable relief is appropriate. A permanent injunction is not issued to maintain the status quo but is a final judgment on the merits. [Citation.]' [Citation.] Like any judgment, a permanent injunction, notwithstanding its discretionary component, must be sufficiently supported by the evidence of record. [Citations.] If the evidence is insufficient to justify issuance of a permanent injunction, the trial court simply had no discretion to exercise. The Supreme Court has gone so far as to state that '[w]hether a permanent injunction should issue becomes a question of law where the ultimate facts are undisputed and in such a case the appellate court may determine the issue without regard to the conclusion of the trial court.' " (Dawson v. East Side Union High School Dist. (1994) 28 Cal.App.4th 998, 1041.) Injunctive relief is appropriate when it appears with reasonable certainty a party to the action will continue or repeat his wrongful acts. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333.) We have concluded the CC&Rs entitled Park Row to request plans from Shirk for his proposed improvements; the evidence is undisputed that Shirk nevertheless proceeded with at least one of his proposed improvements without submitting plans as he was required to do under the CC&Rs, and it is undisputed he threatened to undertake his remaining construction projects in a similar manner.

III. Validity of Nonwaiver Clause

In rejecting Shirk's claim of selective enforcement, the trial court relied upon the "enforcement" provisions in the CC&Rs, in particular the nonwaiver clause providing that Park Row's failure to enforce the CC&Rs shall not be a waiver of the right to later enforce them. Shirk contends the nonwaiver clause violates public policy rendering it void and unenforceable. Specifically, he maintains the provision encourages the sort of arbitrary and selective enforcement as that invalidated in Cohen v. Kite Hill Community Ass'n (1983) 142 Cal.App.3d 642 (Cohen). He further maintains it is both substantively and procedurally unconscionable in that it (1) is a standard form to which all prospective homeowners must agree to obtain title and thus constitutes a contract of adhesion; (2) is "buried in the voluminous text" and allocates the risk of enforcement unreasonably by unfairly permitting and condoning selective enforcement. Park Row responds that the issue is not before us because Shirk did not plead or prove waiver or selective enforcement in his answer. They nevertheless argue the provision, which is presumed reasonable, does not violate public policy nor is it a contract of adhesion.

We need not reach the question of whether Shirk properly pleaded waiver or estoppel sufficient to raise the issue on summary judgment, for we hold as a matter of law that the nonwaiver provision of the CC&Rs in this case does not violate public policy, and is not unconscionable. The nonwaiver provision is within the CC&Rs, and unless it is shown to be unreasonable, it is an enforceable equitable servitude binding all of the owners including Shirk. ( 1354, subd. (a) ["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"]; Nahrstedt v. LakesideVillage Condominium Assn. (1994) 8 Cal.4th 361, 368, fn. 1, 372-377, 382 (Nahrstedt).)

Nahrstedt addressed the standard governing the enforceability of recorded equitable servitudes in common interest developments. (Nahrstedt, supra, 8 Cal.4th at pp. 375, 378-379.) In upholding the validity of a provision prohibiting pets, the court held, "An equitable servitude will be enforced unless it violates public policy; it bears no rational relationship to the protection, preservation, operation or purpose of the affected land; or it otherwise imposes burdens on the affected land that are so disproportionate to the restriction's beneficial effects that the restriction should not be enforced." (Id. at p. 382.) "[S]uch restrictions should be enforced unless they are wholly arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that far outweighs any benefit." (Ibid.) This rule "discourages lawsuits by owners of individual units seeking personal exemptions from the restrictions" and also "promotes stability and predictability" in part by providing "substantial assurance to prospective condominium purchasers that they may rely with confidence on the promises embodied in the project's recorded CC&Rs." (Ibid.) Nahrstedt also held that the Legislature's use of the phrase

" 'enforceable . . . unless unreasonable' " in section 1354, subdivision (a) created a presumption of reasonableness and shifted the burden of proving otherwise to the party challenging the use restriction. (Nahrstedt, at p. 380; see also Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1164-1165.) Further, "the reasonableness or unreasonableness of a condominium use restriction that the Legislature has made subject to section 1354 is to be determined not by reference to facts that are specific to the objecting homeowner, but by reference to the common interest development as a whole." (Nahrstedt, at p. 386.)

Applying these standards compels us to reject Shirk's argument that the nonwaiver clause of the CC&Rs at issue here is void as against public policy. The primary authority on which Shirk's relies, Cohen, supra, 142 Cal.App.3d 642, provides no support for his proposition. Cohen involved exculpatory clauses that purported to relieve the homeowners' association in that case from its responsibility to adhere to the CC&Rs architectural standards by which the association was to approve or deny individual construction or improvement plans, and also purported to exculpate or immunize the association from liability from its acts of nonfeasance or malfeasance, or from damages to anyone "by reason of mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any [submitted] plans or specification, . . . ." (Cohen, 142 Cal.App.3d at p. 650.) As the Cohen court stated, the question was whether the provisions effectively cancelled out those duties and immunized the association from the plaintiffs' suit. (Id. at p. 654.) Concluding the clauses did not immunize the association from suit, the court relied upon the express statutory policy against contracts exempting anyone from fraud, willful injury to the person or property of another, or willful or negligent violation of law ( 1668), as well as the principle that the law "has traditionally viewed with disfavor attempts to secure insulation from one's own negligence or willful misconduct." (Cohen, supra, 142 Cal.App.3d at p. 654.)

The nonwaiver clause at issue here is not an exculpatory clause like those presented in Cohen; it does not relieve Park Row from acts of negligence, willful injury or violations of the law. Nor does it relieve Park Row from its duties to act in good faith and avoid arbitrary decisions when it ultimately renders its decision approving or disapproving Shirk's proposed improvements (Cohen, supra, 142 Cal.App.3d at p. 650) if and when Shirk submits the required plans, drawings and proposed construction schedule. It does not purport to immunize Park Row from suit should a homeowner desire to compel it to exercise its duties under the CC&Rs. A "fundamental public policy" violation implicates such matters as discrimination in employment (Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160, Stevenson v. Superior Court (1997) 16 Cal.4th 880, 890) or airline passenger safety. (Green v. Ralee Engineering (1988) 19 Cal.4th 66, 78, 85.) The clause here does not permit or encourage that sort of fundamental public policy violation, and thus Shirk's reliance on Cohen does not persuade us to disturb Nahrstedt's presumption of reasonableness.

Nor do we agree with Shirk that the clause is unconscionable and thus unenforceable. Unconscionability, which is ultimately a question of law for the court, has both procedural and substantive components. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114; 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1213; Pardee Construction Co. v. Superior Court (2002) 100 Cal.App.4th 1081, 1088.) The procedural element focuses on oppression or surprise due to unequal bargaining power, and substantive unconscionability focuses on overly harsh or one-sided results. (Armendariz, at p. 114; 24 Hour Fitness, at p. 1213.) The prevailing view is that both procedural and substantive unconscionability must be present, although not to the same degree, before a court may exercise its discretion to refuse to enforce a contract or clause due to unconscionability. (Armendariz, at p. 114; Pardee, at p. 1081.)

There is no need to reach the question of procedural unconscionability because we conclude that the clause preventing waiver of Park Row's right to enforce its CC&Rs in the face of prior acquiescence is not substantively unconscionable. On this point, Shirk asserts enforcement of this provision makes it more likely that a homeowner will be victimized by improper, arbitrary, capricious, and unreasonable actions by homeowners associations. We disagree. Notably, the CC&Rs gives any homeowner the right to enforce its provisions. Thus, it is not only Park Row's obligation, but also that of homeowners, to ensure compliance, minimizing the specter of selective enforcement by the association. Further, enforcement of the nonwaiver clause permits prospective purchasers to rely on the recorded CC&Rs. We see nothing unreasonable, harsh or oppressive about this provision and conclude it is not so one-sided as to

" ' "shock the conscience." ' " (Villa Milano Homeowners Assn. v. IL Davorge (2000) 84 Cal.App.4th 819, 829.)

IV. Park Row's Authority to Inspect Shirk's Unit

The trial court included in its judgment an order that Shirk "allow the Board of Directors . . . to inspect any and all construction already completed at [Shirk's] Park Row condominium . . . and such access shall be granted within thirty (30) days of the service of this judgment upon [Shirk] at a mutually convenient time."^[8] Presumably challenging this portion of the judgment, Shirk contends Park Row had no authority to demand the inspection of his unit under the CC&Rs and thus acted in ultra vires in doing so, because he had not started any construction requiring Board approval. Although Shirk did not raise the ultra vires issue in his papers opposing summary judgment, he did make the factual assertion that he had not completed any construction requiring Board approval.

Shirk's contention as to the Board's authority to conduct inspections fails on its factual premise. Park Row submitted evidence via Shirk's deposition testimony that he had in fact completed a whirlpool tub replacement, and we have already concluded that under the CC&Rs that improvement and others requiring alteration of common areas met the requirement for obtaining prior written Board approval because they entailed structural changes in the building. Thus, Shirk's discovery responses defeat his contention. We reject Shirk's assertions of fact to the extent they contradict responses he made during discovery. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 396 (FPI).)

V. Justiciable Case or Controversy

We likewise reject Shirk's contention that he raised triable issues of fact as to whether there was any justiciable case or controversy for purposes of Park Row's cause of action for declaratory relief. Again, the sole factual premise for his contention is Shirk's assertion he had not performed improvements on his unit requiring Board approval. The contention fails in view of Shirk's inconsistent discovery responses.

VI. Park Row's Compliance with Section 1354

For the first time on appeal, Shirk contends summary judgment is improper because Park Row did not comply with that portion of section 1354 requiring the parties to submit to alternative dispute resolution (ADR) before filing an action for injunctive or declaratory relief.^[9] In particular, he argues Park Row did not comply with the mandatory 30 days acceptance provision of that statute and ignored his requests for arbitration.

As Park Row points out, this argument fails because Shirk did not assert Park Row's failure to comply with section 1354 as an affirmative defense to Park Row's complaint, and thus he may not seek to defeat summary judgment on this ground. (See FPI Development, Inc. v. Nakashima, supra, 231 Cal.App.3d at pp. 381-384 [the pleadings act as the outer measure of materiality in a summary judgment proceeding and delimit the scope of the issues; a defendant may not defeat summary judgment on affirmative defenses that are not adequately pleaded]; Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1019 [party may not rely upon unpleaded theories to defeat summary judgment].) Nor did Shirk raise the issue of Park Row's compliance with section 1354 in his opposing summary judgment papers. He is prevented from doing so for the first time on appeal. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [on appeal from a summary judgment, "[w]e may consider only those facts which were before the trial court, and disregard any new factual allegations made for the first time on appeal. Thus, unless they were factually presented, fully developed and argued to the trial court, potential theories which could theoretically create 'triable issues of material fact' may not be raised or considered on appeal"]; Peart v. Ferro (2004) 119 Cal.App.4th 60, 70.)

Shirk's claim also fails under the very provisions of section 1354. Nothing in the record shows Shirk sought the remedies provided for in that statute; that is, he did not demur to or move to strike Park Row's complaint on grounds Park Row did not comply with its certificate requirements. Because he did not do so, he cannot raise the issue on appeal. (Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal.App.4th 683, 691-693.) In Cabrini, the appellant homeowner demurred on grounds the association had not filed the required certificate under section 1354, but she did not assert defective service, which was her claim on appeal. (Cabrini, at pp. 689, 691, 693.) The appellate court found that by failing to demur on that ground, she had waived the issue on appeal: "If appellant had raised the objection that service of the ADR request was defective because there was no signed return receipt, the trial court could have sustained the demurrer with leave to amend, in which case respondent could have complied with section 1354 and filed an amended complaint. Even if leave were denied, the association could have properly served a new ADR request and commenced a new action. Alternatively, the trial court would have been in a position to consider the provisions of section 1354, subdivision (c) and overruled the demurrer on that basis. . . . The trial court might have exercised its discretion to permit the litigation to go forward. By not raising the lack of a return receipt issue first with the trial court, appellant precluded that court from taking appropriate curative action. [Citation.] Under these circumstances, appellant has waived any error." (Cabrini, 111 Cal.App.4th at p. 693.) The Cabrini court's conclusion applies equally where a party has not demurred or moved to strike the complaint at all under section 1354's provisions. Shirk has thus forfeited this claim of error.

VII. Breadth of Injunction

The trial court's judgment included a permanent injunction with the following provisions: "1. . . . [] (a) [Shirk] is hereby permanently enjoined and restrained from commencing, continuing or completing any and all construction either within or on the exterior of his Park Row condominium . . . immediately upon receipt [of] a copy of this Judgment by [Shirk]; . . . [] . . . [] . . . (d) [Shirk] and/or his agents, representatives, and all persons acting in concert or participating with him, and hereby restrained and enjoined from making any unapproved modifications and/or alterations to [his] Park Row condominium . . . without the express, written consent of the Association, and from further violation of the Governing Documents . . . ."

Shirk contends the trial court's judgment violates his rights under the CC&Rs and section 1360, because it permanently enjoins him from engaging in any construction and making any unapproved modifications within his unit, when the CC&Rs permit him to engage in "replacement of appliances and fixtures which require no structural changes in the building" without seeking and obtaining prior written Board approval.

Construing this argument as one challenging the injunction's breadth, we agree with Shirk that it is overbroad. As for paragraph 1(a) of the permanent injunction, the parties stipulated at oral argument that that section may be stricken from the judgment. As for paragraph 1(d), as written, it can be read to encompass modifications to Shirk's unit that the CC&Rs plainly permit without seeking and obtaining prior board approval, because a "modification[] and/or alteration[]" to his condominium is so broad as to include "replacement of appliances and fixtures which require no structural changes in the building."

Our conclusion accounts for the statutory scheme governing condominiums and other common interest developments reflected in section 1360, which addresses the rights of a unit owner to improve or modify his or her unit. Section 1360 grants to each owner in a common interest development specified authority to modify an individual unit, but that authority is "subject to the provisions of the governing documents and other applicable provisions of law. . . ." Thus, while section 1360 permits an owner to "make any improvements or alterations within the boundaries of his or her separate interest that do not impair the structural integrity or mechanical systems or lessen the support of any portions of the common interest development," the CC&Rs may place additional limitations on a unit owner's rights to make improvements or modifications than those permitted by section 1360. Here, under Park Row's CC&Rs, an owner seeking to replace an appliance or fixture must seek and obtain Board approval if the replacement at any point entails "structural changes to the building," i.e., as we have interpreted it, any alteration of the building's walls. However, if the replacement of an appliance or fixture does not require any alteration of the building's walls or other common area during the course of the work, the owner need not seek Board approval.

We remand the matter with directions that the trial court strike paragraph 1(a) from the permanent injunction, and modify paragraph 1(d) to narrow its language in keeping with our interpretation of the CC&Rs as set forth above.

DISPOSITION

The judgment is affirmed and the matter remanded with directions that the trial court strike paragraph 1(a) and modify paragraph 1(d) of the permanent injunction to narrow its language consistent with the views expressed in this opinion. The parties shall bear their own costs on appeal.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

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^[1] All statutory references are to the Civil Code unless otherwise indicated.

^[2] On appeal from the grant of summary judgment, we set out the undisputed evidence and other evidence in the light most favorable to Shirk, the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar); Alexander v.Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139 (Alexander).) However, we disregard evidence to which the court sustained Park Row's objections. "[F]or purposes of reviewing a motion for summary judgment, we do not consider evidence 'to which objections have been made and sustained.' [Citation.] Where the [non-moving party] does not challenge the superior court's ruling sustaining [the moving party's] objections to evidence offered in opposition to the summary judgment motion, 'any issues concerning the correctness of the trial court's evidentiary rulings have been waived. [Citations.] We therefore consider all such evidence to have been "properly excluded." ' " (Alexander, at pp. 139-140.) Shirk has not challenged any of the superior court's rulings on Park Row's evidentiary objections, and thus we do not consider that evidence stricken by the trial court, including the majority of Shirk's declaration in opposition to the motion.

^[3] Shirk's notice of appeal states he is also appealing from the court's order on Park Row's motion under Code of Civil Procedure section 425.16 and motion for attorney fees. Shirk has abandoned those portions of his appeal, and thus we limit our discussion to the issues pertaining to the summary judgment.

^[4] Section 1370 provides in part: "Any deed, declaration, or condominium plan for a common interest development shall be liberally construed to facilitate the operation of the common interest development, and its provisions shall be presumed to be independent and severable."

^[5] Shirk does not contend that Park Row's reason for withholding its approval is not rationally related to the protection, preservation or proper operation of the property and the purposes of the association as set forth in its CC&Rs. (Ironwood, supra, 178 Cal.App.3d at p. 772; Laguna Royale, supra, 119 Cal.App.3d at pp. 683-684.)

^[6] The CC&Rs defines "common area" as "all portions of the Condominium Property not located within a Living Unit" and "Living Unit" as "the elements of a condominium which are not owned in common with the Owners of other condominiums and consists of one element: air space."

^[7] For the first time at oral argument, Shirk's counsel provided varying dictionary definitions for the term "structural," as relevant to the construction industry. As stated, we interpret the words within the CC&Rs in their ordinary and popular sense, having had no contrary intent presented to us. (Franklin v. Marie Antoinette Condominium Owners Assn., supra, 19 Cal.App.4th at p. 829.)

^[8] The "Inspection of Work" section of the CC&Rs provides: "Inspection of work and correction of defects therein shall proceed as follows: [] (1) Upon the completion of any construction or reconstruction or the alteration or refinishing of the interior of any improvement, or upon the completion of any other work for which approved plans are required under this Article, the Owner shall give written notice of completion to the Board. [] (2) Within sixty (60) days thereafter, the Board, or its duly authorized representative, may inspect such improvement to determine whether it was constructed, reconstructed, altered or refinished in substantial compliance with the approved plans. If the Board finds that such construction, reconstruction, alteration or refinishing was not done in substantial compliance with the approved plans, it shall notify the Owner in writing of such non-compliance within such sixty (60) days period, specifying the particulars of non-compliance, and shall require the Owner to remedy such non-compliance."

^[9]Park Row filed its complaint in October 2003. At that time, section 1354, subdivision (b) provided in part: ". . . prior to the filing of a civil action by . . . an association or an owner . . . solely for declaratory relief or injunctive relief . . . the parti