Regency Palms Homeowners Assn. v. Hughes

Filed 4/24/06 Regency Palms Homeowners Assn. v. Hughes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977 .

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Douglas P. Miller, Judge. Affirmed.

Peters & Freedman, Michael G. Kim, Johanna R. Deleissegues and Simon J. Freedman for Plaintiff and Appellant.

Law Offices of Matt H. Morris and Matt H. Morris for Defendant and Respondent

This action arises from defendant and respondent Robert Hughes violating various covenants, conditions & restrictions (CC&Rs) by parking his commercial vehicles in his residential driveway. The issue here is whether plaintiff and appellant Regency Palms Homeowners Association (Association) was required to give Hughes notice of the right to participate in alternative dispute resolution (ADR) under Civil Code section 1354^[1] before filing this lawsuit against Hughes. Association argues it was not required to give Hughes ADR notice because he was not the record title owner when Association filed suit. Although Hughes owned the property, he had not recorded the grant deed.

During an Evidence Code section 402 evidentiary hearing, the trial court found Hughes was entitled to, but did not receive, ADR notice under section 1354. As a consequence, the trial court dismissed Association's lawsuit against Hughes.

Association appeals judgment entered following dismissal of its lawsuit against Hughes. Association contends it fully complied with section 1354 ADR notice requirements. It gave the record owner, Arthur Hale, proper ADR notice, and was not required to give Hughes ADR notice.

We conclude Association was required under section 1354 to endeavor to resolve its dispute over CC&R violations through ADR with Hughes before suing him, and failed to do so. Consequently the trial court appropriately dismissed the action. The judgment is affirmed.

1. Factual and Procedural Background

Association is a nonprofit mutual benefit corporation and serves as a residential owners association for a common interest development^[2] in Palm Desert, known as Regency Palms, where the property in question is located. (§ 1351.) All properties within the development are subject to CC&Rs.

Defendant Robert Hughes has resided continuously at the property in question since 1993. He was the title owner from 1993 to 1996. In 1996, he sold the property to Arthur Hale. Hughes had done work on the Hales' gate. At the time, Hughes was having financial problems and suggested Hale buy his property as an investment. The Hales purchased the property but allowed Hughes to continue living in the home.

In 1998, Hale provided Association with written authorization allowing Hughes to represent him in all matters concerning the Association and the subject property.

In 2001, Hughes bought the property back from the Hales but did not record the deed because he did not want his creditors to know he owned the property.

In July 2002, Hughes allegedly violated Regency Palms CC&Rs by parking his commercial vehicles in his driveway and maintaining commercial signage on his trucks which was visible from the common areas. Association repeatedly sent notices of the violations, addressed to Hale as record owner, to Hughes's post office box. Hale had previously requested Association to send all correspondence to Hughes's post office box.

In August 2002, Hughes met with Association's board of directors and entered into an agreement to abate the parking and signage violations.

In December 2002, Association personally served Hale at his home in Bermuda Dunes with a request for resolution, claiming Hale was still committing CC&R parking and signage violations. The request for resolution advised Hale that he had the right to resolve the dispute through ADR. Association did not send a copy of the request for resolution to Hughes's post office box or provide a copy to Hughes.

Hale did not respond to the request for resolution. As a consequence, in February 2002, Association filed the instant lawsuit against Hale and Hughes for breach of covenant (the CC&Rs), and injunctive and declaratory relief. Association alleges in its complaint that it served â€