Bryant v. Town and Country Homeowners Assn,

Filed 6/12/06 Bryant v. Town and Country Homeowners Assn, CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Stanley Weisberg, Judge. Affirmed.

Goodheart & Goodheart and Gregory J. Goodheart for Plaintiff and Appellant.

Adams & Kessler and Mark A. O'Brien for Defendants and Respondents.

___________________________

A homeowners' association placed a lien against a condominium owner's unit to recover costs it incurred to repair water damage and mold in the unit. The association's lien was satisfied through escrow when the owner sold the unit. The condominium owner then brought suit against the homeowners' association and its management company claiming they had breached their duty to him and he was thus not liable for the repair or remediation costs. At the close of the condominium owner's case-in-chief the trial court concluded the condominium owner had failed to carry his burden of proving his causes of actions for negligence and fraud. Accordingly, the trial court granted the homeowners' association's and management company's motions for judgment. We affirm.

FACTS AND PROCEEDINGS BELOW

Plaintiff and appellant, William L. Bryant, purchased a condominium in Agoura Hills in 1991. His condominium was a one bedroom, one bath unit and part of the defendant and respondent Town and Country Homeowners' Association (the association). The association hired defendant and respondent Community Management Specialists to manage the property.

Sometime in April 2003 appellant noticed the bathtub hot water faucet leaked. Over time the leak got progressively worse until it was running at half force. Appellant went to a home improvement center and personnel there recommended he replace the faucet's washer. Appellant's fix did not last. The same hot water faucet began leaking and in time was again running at half force into the tub. Appellant was not particularly concerned because all the water went down the drain and he did not notice any water leaking outside the tub or around the toilet. Appellant agreed the bathtub's hot water faucet had leaked in this fashion for months.

In May 2003 the owners of the unit directly beneath appellant's unit apparently complained about water leaking from their bathroom ceiling. Workmen hired by the association opened the ceiling and repaired or replaced what appeared to be the offending pipes. In conjunction with this repair work the association president and a workman inspected appellant's unit to determine whether his unit was the source of the leak and/or to determine the extent of damage to the walls or floors. The association's president discovered extensive toxic mold in appellant's unit and told appellant the mold would have to be removed. The president told appellant the mold remediation work would be quite extensive. He urged appellant to move out for the duration of the work. Appellant did not have any money to move out during the repairs. Appellant was not working at the time. His small business had filed for bankruptcy protection and he had no job or other sources of income.

What happened thereafter was the subject of conflicting testimony. Appellant testified he had received a letter from the management company stating the repair work would only take a few days. However, appellant testified the overall project took more than five months. He claimed he had no bathroom at all between the months of May and October 2003. Appellant testified workmen immediately removed all his bathroom fixtures and left him without a bathroom. He did not want to move out of the unit and was thus relegated to washing up in the kitchen sink, urinating in a bottle, using public bathrooms of nearby businesses, and taking showers at friends' and family members' homes. He also complained he had no use of his living room because the ventilation equipment to eradicate the mold led from his bathroom, through his living room and out the screen door and thus occupied most of the space in his unit.

Appellant testified he made his unit readily available to the remediation crew and all other repair companies hired by the association to make plumbing repairs and eradicate the mold from his unit. Appellant testified he was home all the time and always granted access to work crews to do all the required repairs. Appellant believed the association's president did not like him and for this reason deliberately made the project last an undue amount of time.

Appellant did not have a fully functioning bathroom until October 2003. Work crews hired by the association installed all new bathroom fixtures and replaced the bathroom vanity. These workmen also repaired the walls and repainted and apparently did mold remediation and repair work in the kitchen as well.

In December the management company presented appellant with the bills for all the remediation and repair work. The bills totaled over $14,000. Appellant did not pay and the association placed a lien against his unit for this amount.[1]

The association's lien was paid through escrow when appellant sold his condominium unit in early 2004.

Appellant took the position he was not responsible for paying any of the repair costs. He asserted the association had not complied with a provision in the declaration of covenants, conditions and restrictions (CC&R's) specifying the association was to provide 20 days' written notice when repairs to individual units were indicated in order to permit the homeowner to complete the repairs himself or herself. This written notice requirement was a prerequisite to the association assuming responsibility for making the repairs and then billing the homeowner for the cost of repairs. Appellant testified he never received written notice he would be responsible for more than $14,000 in repair and remediation costs until after the fact when he received the bill in December 2003. Appellant agreed he had neither funds nor income at the time to undertake the required repairs but claimed he could have used the equity in his unit if necessary.

Appellant also took the position the source of the plumbing and mold problem had to be in a common area pipe and was thus the association's responsibility. He believed the problem was in the common area because he testified he saw no water leakage in his unit other than the bathtub faucet, and that leak drained directly into the tub.

Finally, appellant asserted he should not be responsible for the repair costs and the association was guilty of fraud because (1) the association's president had an undisclosed interest in the company which performed the mold remediation, amounting to $805 of the overall costs of more than $14,000, and (2) the CC&R's required multiple bids for mold remediation work and the association's president had instead awarded the contract to the company with which he was affiliated without soliciting competing bids.

On cross-examination appellant agreed the CC&R's specified a homeowner would be liable to the association for any damage the homeowner caused to the common area. He further agreed the CC&R's specified the association had the right to enter the premises to repair sewer or water lines.

According to appellant's theory of negligence the association and management company breached their duties to him by failing to comply with the CC&R's. Appellant did not assert any breach of duty in the repair work actually done. Accordingly, he presented no evidence to show any of the work performed had been performed negligently. He also had no evidence to show any of the amounts expended in repair or remediation costs was either unreasonable or unwarranted. He had no personal expertise in this area and thus had no opinion whether any of the work had been negligently performed or was too expensive. Appellant also had not consulted with any expert in any of the plumbing or mold fields in order to determine whether all the work performed was actually indicated by the situation and/or whether the amounts claimed were too expensive for the services rendered.

Appellant presented witnesses who indicated appellant caused much of the delay in completing the project. Appellant at the time had some personal issues and a problem with alcohol abuse. He had neglected his unit. Even appellant agreed his unit was â€