Filed 5/22/13 Beaty v. Gold Springs West Assn. CA5




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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT
 

JAMES BEATY,
                                                                                           F064461
         Plaintiff and Appellant,
                                                                               (Super. Ct. No. CV55295)
                   v.
                                                                                         OPINION
GOLD SPRINGS WEST ASSOCIATION et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
         Dambacher, Trujillo & Wright, Joseph L. Wright, Gary P. Dambacher, Timothy T.
Trujillo and Brandon M. Kilian for Plaintiff and Appellant.
         Lewis Brisbois Bisgaard & Smith and Andrew E. Benzinger for Defendants and
Respondents.
                                                        -ooOoo-


         This is an appeal from summary judgment granted against plaintiff and appellant,
James Beaty, on his four causes of action against defendant and respondent, Gold Springs
West Association (the association). The case involves construction of certain provisions
of the governing documents of a homeowners association. We reverse the summary
judgment, but modify and affirm portions as a summary adjudication of issues, reverse
portions, and remand for entry of a new order on the association’s motion for summary
adjudication. We will also remand the matter to the trial court for further proceedings on
plaintiff’s first, second, and third causes of action.
                         FACTS AND PROCEDURAL HISTORY
       In 1973, Martin Development Corporation (the “declarant”) recorded a
“declaration of protective restrictions” in conjunction with its mapping of the Gold
Springs subdivision unit 1 in Tuolumne County. The declaration of covenants,
conditions, and restrictions (CC&R’s) established rights and duties among the declarant
and persons purchasing lots in the subdivision to govern its development and operation.
       The CC&R’s had two groups of provisions particularly pertinent to this appeal.
The first group of provisions in the CC&R’s concerned architectural standards in the
subdivision. The CC&R’s limited use of lots in the subdivision to single-family
dwellings and associated buildings, provided for general building standards (“natural
materials that harmonize with their surroundings whenever possible”), setbacks, and
other development criteria. Section 3, entitled “Architectural Control by Declarant,”
provided, in part: “No building or other structure shall be commenced, erected or
maintained in Gold Springs, nor shall any exterior addition or alteration be made until the
plans and specifications therefor have been submitted to and approved in writing by
Declarant. [¶] In the event Declarant fails to approve or disapprove such design within
30 days after said plans and specifications and any subsequent data requested by
Declarant has been submitted to it, approval will not be required and this paragraph will
be deemed to have been fully complied with.” Section 23 provided: “Since these
covenants and restrictions have been prepared to insure the architectural integrity and
quality of life in Gold Springs for the benefit of all property owners, Declarant reserves
the right to arbitrarily withhold its approval of submitted plans and specifications when it

                                               2
believes, in good faith, that said plans are inconsistent with the purpose herein
described.” The CC&R’s provide that declarant “and each person to whose benefit this
Declaration inures may proceed at law or in equity to prevent … violation of any
provision of this Declaration.” Section 29 provided, in relevant part: “The provisions of
this Declaration shall be liberally construed to effectuate the purpose described herein.”
       The second group of CC&R’s dealt with a nine-acre recreation area to be held in
common by the owners of the lots in the subdivision. Section 1 of the CC&R’s provided
that the declarant would maintain the recreation area and could assess against the lot
owners a charge of $48 per year to defray the cost of such maintenance. After a certain
percent of the lots in the subdivision were sold, the declarant was permitted, on certain
additional conditions, to transfer the recreation area to a homeowners association formed
for the purpose of maintaining and managing the recreation area. In 1979, the association
was formed and the recreation area was transferred to it. The articles of incorporation of
the association, both in 1979 and presently, state that the “specific and primary purpose
for which the Association is formed is to own and maintain [the] recreation area.” “The
general purposes of the Association are to provide all types of services, facilities and
improvements deemed useful, beneficial or necessary to the use and enjoyment of [the
recreation area] by members of the Association.” The articles provide that the
association may exercise all powers of a corporation “under the General Nonprofit
Corporation Law.” The articles provide: “However, the Association shall not, except to
a nominal necessary degree, engage in any activities or exercise any powers that are not
in furtherance of the primary purposes of the Association.”
       The declarant (and a successor developer) apparently exercised the power of
architectural review under the CC&R’s and, after 1979, the association merely managed
the recreation area until, in 1984, the association and a majority of lot owners amended
the CC&R’s to substitute the association in place of declarant. Thus, the recorded

                                              3
amendment simply substitutes the words “Gold Springs West Association” for the word
“declarant” in the various provisions concerning architectural review and control. The
articles of incorporation of the association were not amended, and the “primary purpose”
of the association as stated in the articles of incorporation continued to be the
management of the recreation area.
       There apparently was disagreement among the owners of Gold Springs lots over
the appropriate level of activity of the association in enforcing the CC&R’s beyond its
management of the recreation area. For example, in 1989, the board of directors of the
association proposed amendment of the articles of incorporation to broaden the powers of
the association. The letter tendering the matter for a vote of the membership stated:
“[The association] cannot legally enforce compliance for our design review committee.”
In each of the votes of the membership on this issue, the majority of those voting voted
against amendment of the articles of incorporation. At the relevant times, the board did
not maintain an architectural review committee and did not act to approve or reject
building, addition, or remodeling plans.
       Plaintiff is a homeowner in the Gold Springs subdivision and a member of the
association. He has been involved in efforts to seek enforcement of the architectural
review standards by the association and to amend the articles of incorporation to expand
the stated duties of the association to include an express duty to act to approve or
disapprove the plans for development lot owners are required to submit to the association
prior to construction or remodeling. The association asserts that both it and individual lot
owners have the right under the CC&R’s to enforce the declarations, including the
architectural standards, but it contends it does not have—and that its membership has
consistently failed to grant to it—the power to act with respect to such enforcement.
       In 2009, plaintiff filed an action for declaratory and injunctive relief and for
damages against the association and its individual board members. After demurrer was

                                              4
sustained with leave to amend, plaintiff filed the operative first amended complaint in
2010. The first cause of action alleged the president of the board of the association had
announced that the association would neither require the submission of plans by lot
owners prior to commencement of construction projects, nor would the association act to
approve or disapprove such plans, instead deeming the requirements of the CC&R’s
satisfied by the passage of 30 days after submission; it sought injunctive relief.1 The
second cause of action sought damages for the alleged breach of the CC&R’s. The third
cause of action sought declaratory and statutory relief under Civil Code section 1378,
subdivision (a)(4), which requires a homeowners association’s decision after architectural
review to be in writing. (All further statutory references are to the Civil Code, except as
noted.) The fourth cause of action sought a declaratory judgment affirming that the
language of the CC&R’s prevailed over any contrary provision of the association’s
articles of incorporation. Demurrer was sustained without leave to amend as to the
individual board members. It was overruled as to the association. The association
answered and moved for summary judgment. The trial court concluded that the
association did not have a duty under the CC&R’s to approve or disapprove plans
submitted by the lot owners. The court concluded that, as a result, there was no conflict
between the CC&R’s and the articles of incorporation, the Civil Code provision requiring
a written response after architectural review was not applicable, and there were no other
triable issues of material fact as to any of the causes of action.2 The court entered

1      The temporary and permanent injunctive relief sought was that defendants “refrain from
not requiring the submission of the required documentation for architectural review … and to
comply with the provisions of the Davis-Sterling Act (Civ. Cod §§ 1350 et seq.), and to further
enforce all Protective Restrictions” of the subdivision.
2       At various points in the trial court’s ruling, it describes provisions as appearing in the
articles of incorporation when, taken in context, the court meant to describe provisions of the
CC&R’s. On appeal from a summary judgment we review the admissible evidence de novo to
determine whether there is a triable issue of material fact and whether the defendant is entitled to

                                                 5
judgment for the association and subsequently awarded costs and attorney fees to it as
prevailing party.
                                          DISCUSSION
       It is evident from the language of the architectural review provision of the
CC&R’s that there are two distinct aspects to the review requirement. First, “[n]o
building or other structure shall be commenced … until the plans and specifications …
have been submitted to and approved in writing by [the association]” unless the
association fails to approve or disapprove the plans within 30 days after submission, in
which case the plans are deemed approved. This express requirement for submission of
proposed plans must be distinguished from the second aspect of the architectural review
requirement, which provides that the association must approve or disapprove the plans
within 30 days of submission; that any disapproval shall be made only in good faith; and
if the association fails to act within 30 days the requirement for prior approval “will not
be required and this paragraph will be deemed to have been fully complied with.” To
summarize the discussion that follows, we conclude the trial court correctly determined
that the CC&R’s, as a matter of law, do not require the association to affirmatively act to
approve or disapprove plans submitted by a homeowner. We also conclude, however,
that the CC&R’s unequivocally require the homeowner to submit plans to the association
at least 30 days before the construction or improvement begins and that, also as a matter
of law, this implies a concomitant duty on the association to receive such plans and make
them reasonably available to the membership of the association. We conclude that the


judgment as a matter of law; we are not bound by the trial court’s statement of reasons for
granting the judgment. (E.g., Modern Development Co. v. Navigators Ins. Co. (2003) 111
Cal.App.4th 932, 938; see Code of Civ. Proc., § 437c, subd. (c) [general standard for granting
summary judgment].) Plaintiff, while pointing out the trial court’s errors, impliedly recognizes
the foregoing standards and discusses the issues as if the trial court had correctly identified the
source of the language upon which it relied.


                                                 6
trial court failed to recognize these two distinct aspects of the architectural review
provisions of the CC&R’s. We will first explain our conclusions concerning the duties
under the CC&R’s, and then examine how those conclusions affect the summary
judgment entered by the trial court.
       Initially, we acknowledge that this case involves unique facts. The association
clearly and explicitly was formed in 1979 for the narrow purpose of operating the
common areas of the subdivision. When, in 1984, the members of the association voted
to amend the CC&R’s to substitute the association for the “declarant” without expanding
the limited powers of the association, the membership, in effect, tried to fit a square peg
into a round hole. And, as that metaphor implies in common usage, such an effort does
not usually work, or at least it does not result in a smooth fit. Nevertheless, the
membership voted as it did and, consistent with the CC&R’s admonition that its
provisions be liberally construed to “effectuate the purpose described herein,” we are
required to determine how the square peg and the round hole fit together.
       Members of a homeowners association are entitled to sue the association or other
individual members of the association to enforce the provisions of the CC&R’s. (Lushing
v. Riviera Estates Assn. (1961) 196 Cal.App.2d 687, 690-691.) The CC&R’s constitute a
contract between and among the various parties thereto, including the association.
Normal principles of contract interpretation are applicable. (Fourth La Costa
Condominium Owners Assn. v. Seith (2008) 159 Cal.App.4th 563, 575.) Accordingly, we
attempt to ascertain the intent of the parties at the time they entered into the contract.
(Ibid.) Where, as here, all material extrinsic evidence is undisputed, interpretation of the
contract is an issue of law, reviewed de novo on appeal. (See Amerigraphics, Inc. v.
Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1550-1551.)




                                               7
1. The Duty to Approve or Deny Plans
       As to any duty upon the association to act to approve or disapprove plans
submitted for architectural review, we agree with the trial court that the express language
of the CC&R’s provides for no such duty. Instead, the CC&R’s provide, in clear terms,
that the association’s failure to act within 30 days of its receipt of plans (and other
required information) has an affirmative result: “approval of the plans will not be
required” and plans submitted by homeowners are “deemed” to have been approved by
the association.
       Plaintiff notes that section 1363, subdivision (a), states: “A common interest
development shall be managed by an association that may be incorporated or
unincorporated.” He implies that this section requires all homeowners associations to
take all steps necessary and appropriate to “manage” a common interest development.
Subdivision (c) provides, however: “Unless the governing documents provide otherwise,
… the association may exercise the powers granted to a nonprofit mutual benefit
corporation.” Thus, plaintiff’s implication that the governing body, by virtue of section
1363, subdivision (a), is vested with plenary corporate powers to “manage” the common
interest development, ignores the fact that subdivision (c) of that section permits the
members of an association to provide for a limitation of powers in the governing
documents, just as the association’s membership has done here. Similarly, administrative
regulations governing homeowners associations provide that the governing instruments
“shall ordinarily provide for, but need not be limited to … [¶] … [¶] (10) Enumeration of
the powers and duties of the governing body …; [¶] … [¶] (23) Architectural and/or
design control.” (Cal. Code Regs., tit. 10, § 2792.8, subd. (a)(10), (23).) Accordingly,
there is no statutory or regulatory provision that requires a homeowners association to
exercise affirmative control over architectural review, in the absence of such a
requirement in the governing documents.

                                              8
       Plaintiff also contends the association has an affirmative duty under section 1378
to act to approve or disapprove each proposed construction project in the subdivision.
Section 1378, subdivision (a), states that the section is applicable “if an association’s
governing documents require association approval before an owner of a separate interest
may make a physical change to the owner’s separate interest or to the common area.”
The statute then lists several requirements for the association, including a fair procedure,
the exercise of good faith, and a written decision. (§ 1378, subd. (a)(1)-(5).) The trial
court concluded section 1378 was not applicable because “the governing documents do
not require Association approval before an owner of a separate interest may make a
physical change to the owner’s separate interest.” We disagree in part with this
conclusion, since the CC&R’s expressly state: “No building or other structure shall be
commenced, erected or maintained in Gold Springs … until the plans and specifications
therefor have been submitted to and approved in writing by [the association].” (Italics
added.) A fair reading of the CC&R’s here requires that the architectural review
provisions be interpreted to “require association approval” before construction. Clearly
the declarant has the power under the CC&R’s to disapprove of plans—and thereby
prevent construction—even though approval of the plans is the net result of the
association’s inaction. Actual disapproval of plans clearly would require a written
decision, with reasons, under section 1378, subdivision (a)(4). It is not reasonable to hold
that the applicability of section 1378 depends on the result of the association’s
determination in each particular case. Here, the initial requirement that the homeowner
refrain from construction until approval of his or her plans, regardless of the mechanism
of such approval, invokes the requirements of section 1378. However, as we have
discussed earlier in this section, there is no statutory requirement that an association
affirmatively act to review the substance of individual plans submitted for architectural
review. We conclude that a system for architectural review that received and made

                                              9
accessible to the membership plans for proposed construction by homeowners, but that
uniformly approved such plans through the mere passage of time after submission of the
plans, does not, in itself, violate section 1378. An association that acted in accordance
with the expressed will of a majority of its members in adopting such a policy of uniform
approval after submission of plans would not normally be (and is not, in the facts
presented by the record here) acting other than in “good faith” as required by section
1378, subdivision (a)(2).
       This is not the system the association currently employs, however. The parties’
statements of undisputed facts establish that the association’s board has made the filing of
plans optional—that is, it does not require submission of plans prior to construction, even
though the language of the CC&R’s does not provide for waiver of that requirement by
the passage of time or otherwise. We will address this aspect of the case in the next
section. The point here is that section 1378 does not impose an affirmative duty on a
homeowners association to actually review the substance of plans submitted to the
association, even though section 1378 does require a fair and good faith procedure for
receiving and approving or denying such plans. (See Cohen v. Kite Hill Community
Assn. (1983) 142 Cal.App.3d 642, 650.)

2. The Duty to Receive and Make Available Plans for Proposed Construction or
Improvements
       The association has consistently taken the position that even if the association does
not have the corporate power to enforce the architectural review standards, this does not
render such standards a nullity because individual members of the association are given
full power in the CC&R’s to enforce architectural standards through litigation. Plaintiff
acknowledges that this might be true, except that the association “by its own admission
… does not even require the submission of documents and, as such, the clock never
begins to tick.” That is, plaintiff contends that even if the CC&R’s permit the association


                                            10
to enact a policy of approving all plans because of the passage of 30 days from
submission of the plans, such approval only occurs if plans are actually submitted. In
order to protect the individual-enforcement mechanism contemplated by the membership
and stated in the CC&R’s, plaintiff argues, there must be a policy that requires
submission of the plans and, inferentially, to make the plans available to individual
members during the 30-day period.
       We agree with plaintiff. At the time of the most recent amendment of the CC&R’s
in 1984, the membership did not remove or restrict the express obligation of homeowners
to submit plans for approval prior to construction or improvements upon their properties.
At the same time, and on every occasion thereafter that the matter has been presented for
a vote by the membership, the association was not given express power to enforce the
CC&R’s, but the express right of individual members to take such enforcement action
was preserved. Given these reciprocal duties and rights—to submit plans and to sue for
violations of architectural standards—we conclude the CC&R’s necessarily imply a
mechanism for discharging the duty and making the enforcement rights meaningful.
Accordingly, we conclude the act of the membership in amending the CC&R’s in 1984
impliedly, but necessarily, constituted a grant by the membership to the association of
sufficient power to implement the amendments. The “only reasonable construction to be
given” (Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168
Cal.App.4th 1111, 1123) to the express language of the CC&R’s requiring submission of
plans before construction may begin is that the association be empowered and required to
receive those plans. Similarly, the only reasonable construction to be given the express
right of all homeowners to sue to enforce the provisions of the CC&R’s, including the
standards for setbacks, building materials, size, and related matters, contained in the
CC&R’s as paragraphs 4 through 15, is that the association must make reasonably
available preconstruction plans and specifications submitted to it by homeowners. This is

                                             11
an expansion of the narrow duties prescribed in the 1979 articles of incorporation.
Nevertheless, it is both a necessary grant of power for the accomplishment of the
purposes of the CC&R’s, and it is an expansion that is consistent with the votes taken by
the membership after 1984, rejecting the endowment of broad powers of enforcement
upon the association. Further, in the absence of a power and duty to receive
preconstruction plans and specifications, the governing documents of the association
would violate the requirement of section 1378, subdivision (a)(1), that the procedure for
making architectural review decisions must be “fair, reasonable, and expeditious.”3
       Nothing in this opinion, of course, prevents the membership of the association
from amending its articles of incorporation to permit the board to enforce the CC&R’s to
the full extent the original declarant was permitted to enforce those provisions. In
addition, nothing in this opinion prevents the board or the membership from adopting a
different method for satisfying the requirements of section 3 of the CC&R’s, so long as
that method meets the fairness, good faith, and other requirements of section 1378,
subdivision (a).
3. The Declaratory Judgment Cause of Action
       The trial court did not separately state its reasoning, nor separately adjudicate,
each of the four causes of action in the first amended complaint. Instead, the court found
“that there are no triable issues of material fact as to any of the causes of action in the
First Amended Complaint.” Therefore, the court granted summary judgment. We have
determined that summary judgment, on the motion and evidence before the trial court,


3       We conclude in the text that section 1378 is applicable under the present CC&R’s. Of
necessity, therefore, the association is required by statute to render its decision “on a proposed
change” in writing. (§ 1378, subd. (a)(4).) Under the association’s current policy, however,
proposals will be “deemed” approved 30 days after submission. That mechanism still results in
approval of the plans, and the association is required by section 1378, subdivision (a)(4), to make
that decision in writing.


                                                12
was inappropriate. As to the fourth cause of action, we will modify and affirm the trial
court’s order. Because the association moved in the alternative for summary judgment
and summary adjudication (see Code Civ. Proc., § 437c, subd. (f)), our affirmance of the
judgment, as modified, on the fourth cause of action necessarily results in summary
adjudication of that cause of action, instead of a final judgment. (Id., subd. (k).)
       We have concluded, in section 2, ante, that as a matter of law the CC&R’s impose
a duty upon homeowners to submit plans and specifications before commencing or
erecting a building or other structure in the subdivision and that, also as a matter of law
on the undisputed evidence, there is a commensurate duty upon the association to receive
such plans and specifications and to make them reasonably available for review by
members of the association. We have also concluded that the trial court was correct in
determining that the association has no duty under the existing governing documents to
affirmatively act to approve or disapprove such plans and specifications. As a result,
there are no material issues of triable fact concerning the fourth cause of action, which
sought a declaration that the requirements of the CC&R’s control over the requirements
of the articles of incorporation to the extent the provisions of the two documents are
inconsistent. “Under its authority to modify any judgment or order appealed from,
whenever it is shown, either by the record on appeal, or by the admission or consent of
the parties, [an appellate court] will render its own judgment to that effect, or will direct
such action in the court below as in its opinion will best conserve the rights of the parties
to the action, without subjecting them to further delay or expense.” (Fox v. Hale &
Norcross Silver Mining Co. (1898) 122 Cal. 219, 221-222; see Munoz v. City of Union
City (2007) 148 Cal.App.4th 173, 183 [modification of judgment ordered after jury
verdict].)
       Accordingly, we modify the order as to the fourth cause of action as follows:
“The Court having considered the moving and responding papers, the admissible

                                              13
evidence submitted, and the oral arguments of counsel, finds that GSWA is not out of
compliance with its governing documents except insofar as it fails to require the
submission of plans and specifications as required in section 3 of the Declaration of
Protective Restrictions and to make those plans and specifications reasonably available to
the members after submission. While the Declaration of Protective Restrictions requires
the owner to submit plans to the association, the declaration does not require action by
the association after those plans have been submitted, except insofar as its duty to make
the plans reasonably available for review by its members. The Court finds that express
authorization of new construction is not required by the governing documents. To the
extent the Declaration of Protective Restrictions and the articles of incorporation of the
association are inconsistent in establishing the duties of the association, the Declaration
of Protective Restrictions is controlling.”
4. The First and Second Causes of Action (Injunctive Relief and Damages)
       Summary adjudication is appropriate when it fully resolves an issue of duty, even
if there are remaining issues under a cause of action. (Code Civ. Proc., § 437c,
subd. (f)(1).) In accordance with our modification of the order on the fourth cause of
action, the summary judgment on the first two causes of action must be modified to be
summary adjudication of the issue of the duty of the association to affirmatively act to
approve or disapprove plans and specifications submitted to it: The association is entitled
to summary adjudication that it has no such duty under the governing documents as
presently constituted. Because the association moved in the alternative for summary
adjudication and because this conclusion is consistent, in part, with the summary
judgment entered by the trial court, we will modify the order for the first and second
causes of action; the trial court’s order, to the extent it constitutes an order for summary
adjudication on the issue of duty to approve or disapprove plans, will be affirmed.



                                              14
        We have concluded that the association does have a duty to receive and make
available to members, plans and specifications required to be submitted to it under
section 3 of the CC&R’s. Thus, the association has not established that plaintiff is not
entitled to recover under those causes of action as a matter of law. In particular, plaintiff
may be able to establish cognizable damages in the second cause of action, but those
issues have not been presented to the trial court. Plaintiff may also be entitled to
injunctive relief and, as to this aspect of the case, the trial court retains significant
discretion to establish the terms of any such equitable relief. (Haley v. Casa Del Rey
Homeowners Assn. (2007) 153 Cal.App.4th 863, 873 [stating standard but finding no
abuse of discretion].) Accordingly, insofar as the summary judgment determines that
plaintiff is unable as a matter of law to recover on the “submission of plans” theory of
liability under the first and second causes of action, the judgment must be reversed and
remanded for further proceedings in the trial court.
5. The Third (Statutory) Cause of Action
        The third cause of action seeks a declaratory judgment that the association is in
violation of section 1378.4 As we have discussed in section 2, ante, the association is
required to comply with section 1378. The trial court ruled that it was not. Accordingly,
we reverse the order for judgment on the third cause of action. Further proceedings on
this cause of action will necessarily be informed by the limited nature of the substantive
duties imposed on the association by the governing documents—i.e., to receive and
provide access to plans and specifications under section 3 of the CC&R’s—and the relief
on this cause of action may largely coincide with any relief granted under the first cause



4       In the trial court, plaintiff also asserted that the association was in violation of other
statutes governing notices to members. (§§ 1363.850, 1369.590.) On appeal, plaintiff has
abandoned those contentions.


                                                  15
of action for injunction. Nevertheless, plaintiff is entitled to some form of relief on this
cause of action.
6. Conclusion
       Because of the procedural posture of this case, and because of the form of the
judgment granting in full the association’s motion for summary judgment, the
dispositional language on this appeal will be far more complex than in most cases. The
disposition, however, should not mask the relatively straightforward nature of our
underlying conclusions: Where a homeowners association and its members have chosen
through the language of the governing documents that they will not empower the
association as a “minigovernment” (Duffey v. Superior Court (1992) 3 Cal.App.4th 425,
429), there is no statutory requirement that the association, nevertheless, act in that
capacity. But where the governing documents promise lesser protections to the members
and those express protections can be afforded only through the auspices of the
homeowners association, members who bought their property subject to the protections
of the CC&R’s cannot be deprived of those protections by fiat of the board of the
association. Plaintiff has the limited right to have the association receive and make
available plans and specifications submitted pursuant to section 3 of the CC&R’s, and he
is entitled to continue this action to enforce that right.
                                        DISPOSITION
       The judgment is reversed. The superior court is directed to vacate its order
granting the defendant’s motion for summary judgment and to enter a new order denying
the motion for summary judgment and granting and denying the defendant’s motion for
summary adjudication, as follows: (1) As to the first and second causes of action,
granting summary adjudication on the issue of duty of the defendant to act to approve or
disapprove plans and specifications under section 3 of the CC&R’s; (2) as to the first and
second causes of action, denying the defendant’s motion for summary adjudication in all

                                               16
other respects; (3) as to the third cause of action, denying the defendant’s motion for
summary adjudication; and (4) as to the fourth cause of action, granting the defendant’s
motion for summary adjudication, modified to state: “The Court having considered the
moving and responding papers, the admissible evidence submitted, and the oral
arguments of counsel, finds that GSWA is not out of compliance with its governing
documents except insofar as it fails to require the submission of plans and specifications
as required in section 3 of the Declaration of Protective Restrictions and to make those
plans and specifications reasonably available to the members after submission. While the
Declaration of Protective Restrictions requires the owner to submit plans to the
association, the Declaration does not require action by the association after those plans
have been submitted, except insofar as its duty to make the plans reasonably available for
review by its members. The Court finds that express authorization of new construction is
not required by the governing documents. To the extent the Declaration of Protective
Restrictions and the articles of incorporation of the association are inconsistent in
establishing the duties of the association, the Declaration of Protective Restrictions is
controlling.” The parties shall bear their own costs on appeal.



                                                                  _____________________
                                                                               HILL, P. J.
WE CONCUR:


 _____________________
LEVY, J.


 _____________________
CORNELL, J.



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