Perez v. Blay CA4/1

Filed 11/18/20 Perez v. Blay 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MAX PEREZ, D075751

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2017-00023570-

CU-FR-NC)

RICHARD J. BLAY et al.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County,

Jacqueline M. Stern, Judge. Affirmed.

Griffin Law Firm and David Ryan Griffin for Plaintiff and Appellant.

Gordon Rees Scully Mansukhani, Matthew Gregory Kleiner and

Andrea K. Scripps for Defendants and Respondents.

Appellant Max Perez bought a parcel of land and then sought to rescind

the purchase. He challenges the trial court’s denial of his request and, in

particular, its finding that the lot was not part of a common interest

development. Finding no error based on the incomplete record before us, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2015, Perez bought a parcel of land in Bonsall from Richard and Ann

Whalen Blay.1 It was one of eight lots they inherited from Richard’s mother.

The Blays never lived on the land but knew all parcels were subject to

various covenants and restrictions (CC&R’s) which were referenced in the

property listing.

Perez was apparently eager to close the sale. He submitted an offer,

accepted the Blay’s counteroffer, and completed the purchase in less than a

month. At some point Perez seemingly discovered that the CC&R’s would

inhibit his construction plans on the lot. He filed suit against the Blays and

other codefendants involved in the sale (parties who were later dismissed),

seeking rescission based on fraud, negligent misrepresentation, and breach of

contract. Perez alleged that the Blays misrepresented that there was no

owner’s association and that the CC&R’s were invalid, inducing him to

purchase the lot in reliance on these false statements. For his breach of

contract claim, Perez said the Blays did not disclose certain documents they

were contractually mandated to provide.

The case proceeded to a bench trial, where the court found in favor of

the Blays and specifically stated that Perez failed to carry his burden,

offering “no evidence against these defendants of fraudulent acts or

misrepresentations” and “no evidence that they failed to provide any required

documentation to plaintiff.” The trial was not reported.

1 The record in this case is incomplete. We gather the facts from

undisputed statements in the briefs, the trial court’s statement of decision,

and the handful of exhibits available to us.

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DISCUSSION

On appeal, Perez argues the court erred as a matter of law by

concluding that the CC&R’s, a map of the property subdivision, and a private

road maintenance agreement did not create a common interest development

under the Davis-Stirling Common Interest Development Act (the Act).2 (Civ.

Code, § 4000 et seq.)3 Despite the trial court’s factual findings to the

contrary, he also reiterates his position that he is entitled to rescission

because the Blays breached their contractual obligations by failing to provide

disclosures regarding a homeowner’s association. Alternatively, he claims

that the documents they did provide came late and prevented him from

making an informed decision about the purchase.

As to his first argument, it is not at all clear that Perez would have

fared better if the trial court had made the opposite finding—that these

documents proved the lot was part of a common interest development.

Regardless, there was no demonstrable error on this point. We provide a

brief overview of the statutory scheme to frame our discussion.

In 1985, the Act gathered the various codes governing common interest

developments within one statutory framework. Because subsequent

amendments rendered the sections confusing, it was overhauled and

recodified in 2014. (Nahrstedt v. Lakeside Village Condominium Assn. (1994)

8 Cal.4th 361, 378; Sproul et al., Advising Cal. Common Interest

Communities (Cont.Ed.Bar. 2d. ed. 2020) §§ 1.3‒1.4.) The Act recognizes four

types of common interest communities: community apartments,

2 Our record only includes the CC&R’s and map of the property

subdivision.

3 All subsequent statutory references are to the Civil Code unless

otherwise indicated.

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condominiums, planned developments, and stock cooperatives. (§ 4100.) The

lots at issue in this case could only be considered part of a planned

development, which is defined as a real property development other than an

apartment, condominium, or stock cooperative. (§ 4175.) Generally, a

common interest development is created through a two-step process: (1) “a

separate interest, coupled with an interest in the common area or

membership in the association” is conveyed, and (2) a declaration and parcel

map that complies with the Subdivision Map Act are both recorded.4 (Civ.

Code, § 4200; Gov. Code, § 66410.) In planned developments, a separate

interest is defined as a “separately owned lot, parcel, area, or space” (§ 4185,

subd. (a)(3)), while the common area is negatively defined as “the entire

common interest development except the separate interests therein.” (§ 4095,

subd. (a).) Properties that lack a common area are not common interest

developments and the Act is inapplicable to their governance. (§ 4201; see

also Committee to Save the Beverly Highlands Homes Ass’n v. Beverly

Highlands Homes Ass’n (2001) 92 Cal.App.4th 1247, 1268.)

The question before us is whether, as a matter of law, the three

documents Perez points to necessarily show the parcel he currently (though

unhappily) owns is part of a planned development. Because the eight lots

clearly qualify as separate interests, our analysis turns on whether the

property includes a “common area” as defined by the statute.

In planned developments, a common area can be established in one of

two ways. Under subdivision (a) of section 4175, the common area can be

either owned by an association or owned in common by the owners of the

separate interests who “possess appurtenant rights to the beneficial use and

4 Though not relevant here, condominiums are also required to record a

condominium plan.

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enjoyment of the common area.” Subdivision (b) provides an alternative,

where the common area is maintained by an association “with the power to

levy assessments that may become a lien upon the separate interests.”

These common areas typically consist of green space or recreation

areas. (See, e.g., Branciforte Heights, LLC v. City of Santa Cruz (2006)

138 Cal.App.4th 914, 921; Bruce et al., Forming Cal. Common Interest

Developments (Cont.Ed.Bar. 2019) § 1.35.) Construing his brief liberally,

Perez seems to argue that the two private roads bordering the property,

Disney Lane and Kellyn Lane, are the common area. While it is certainly

possible for private roads to satisfy this requirement, their existence alone is

not enough. Perez must show the roads constitute a common area under

section 4175, which lists the factors that qualify.

Subdivision (a) of section 4175 focuses on ownership of the common

area and contemplates that either an association will own it or that the

separate interest owners will hold it in common. As to the first ownership

structure, there are no indications in either the CC&R’s or the map that an

association owns the roads. To the contrary, the map shows that most of the

parcels (numbers two through eight) extend to incorporate parts of Disney

Lane. It thus appears that sections of the road are actually within the

separate interest lots. By its very definition, a common area cannot be part

of a separately owned interest. A map like this, that shows sections of road

incorporated into distinct lots, seems to preclude the possibility that the

separate interest owners hold the roads together, undivided, as tenants in

common. (See, e.g., Pinnacle Museum Tower Assn. v. Pinnacle Market

Development (US), LLC (2012) 55 Cal.4th 223, 232 [condominium common

area was an undivided interest held in common]; Bruce et al., Forming Cal.

Common Interest Developments, supra, § 1.35 [noting the two ownership

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structures for common areas in planned developments are ownership by an

association or by separate interest owners as tenants in common].) To

further understand the ownership structure of the roads and the lots, we

would need to review the deeds, which were not provided in this record.

Subdivision (b) does not focus on common area ownership but does

require that an association exist to maintain the roads. Such an association

must also possess the power to levy assessments that may become liens on

the separate interests. (§ 4175.) Neither the map nor the CC&R’s establish

there was ever an association tasked with road maintenance.5 In addition,

the CC&R’s only contemplated one association—the Architectural Control

Committee—for approving construction plans on the lots. The lack of any

other entity established in the CC&R’s, coupled with the trial court’s finding

that the Architectural committee was defunct as of 2010, undermines Perez’s

position.

He advances one other theory that he maintains would make the roads

a common area, but it stems from a misunderstanding of the statutory

scheme.6 The Act’s definition in some cases permits a common area to

“consist of mutual or reciprocal easement rights.”7 (§ 4095, subd. (b).)

Seizing on this language, Perez points out that the lots have mutual

5 While our record does not include the road maintenance agreement, a

reference to that document in the CC&R’s indicates it established a formula

for owner contributions to street repair and maintenance. This reference

makes no mention of an association.

6 In all fairness, the sections at issue employ some potentially confusing

language. (See Bruce et al., Forming Cal. Common Interest Developments,

supra, §§ 1.35‒1.37, for clarification.)

7 “A mutual easement has the same meaning as a reciprocal easement.”

(Cheveldave v. Tri Palms Unified Owners Assn. (2018) 27 Cal.App.5th 1202,

1215.)

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easement rights to traverse Disney and Kellyn lanes. He seems to believe the

mere existence of the easements satisfies the common area requirement. But

by the terms of the statute, easement rights can only be considered a common

area where an association also exists. Moreover, the association must have

the particular powers and responsibilities enumerated in section 4175,

subdivision (b) as discussed above. (See § 4095, subd. (b).) Perez, who has

failed to provide evidence of these specific conditions, cannot rely on this part

of the law to support his argument.

Perez’s remaining claims amount to nothing more than attempts to

relitigate unfavorable findings made by the trial court. We usually afford

these findings great deference, overturning them only if they are unsupported

by substantial evidence. (See Scott v. Pacific Gas & Electric Co. (1995) 11

Cal.4th 454, 465; Escobar v. Flores (2010) 183 Cal.App.4th 737, 752.) Here,

we assume their propriety since we have no record of the trial to review and

only a partial clerk’s transcript. (See Estate of Fain (1999) 75 Cal.App.4th

973, 992; National Secretarial Service, Inc. v. Froehlich (1989) 210

Cal.App.3d 510, 522.)

We do have the court’s statement of decision. Of particular relevance,

the court memorialized Perez’s failure to carry his burden. Specifically, it

stated that he presented “no evidence against these defendants of fraudulent

acts or misrepresentations” and “no evidence defendants failed to provide any

required documentation.” He was also given the CC&R’s, map, and road

maintenance agreement to inform his property purchase and he “signed off

on the preliminary title report several days before the close of escrow,”

completing the transaction without objection or even a request for additional

time. Perez’s continued insistence that rescission is warranted, either due to

a mistake or because the Blays withheld documents they were required to

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provide, is contradicted by the findings of the trial court—to which this court

must defer.

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on

appeal.

DATO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

AARON, J.

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