Filed 1/13/14 Rappard v. Abourne House III HOA CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


DEREK RAPPARD,                                                       B246006

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC425604)
         v.

ABOURNE HOUSE III HOA et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Robert
L. Hess, Judge. Reversed in part with directions.
         Peter M. Schnirch for Plaintiff and Appellant.
         Willis DePasquale, Larry N. Willis, Colrena K. Johnson and Yvette N. Siegel for
Defendants and Respondents.
                                   I. INTRODUCTION


       Plaintiff, Derek Rappard, appeals from summary judgment in favor of defendants:
Abourne House III Homeowners Association (the homeowners association); LB Property
Management (the property management company); Katrina Fountain; and Pearl Scott
Smith. Plaintiff argues he should have been permitted to proceed with his nuisance,
negligence, and intentional emotional distress infliction causes of action. The trial court
ruled plaintiff did not have standing to sue defendants because he had no ownership
interest in the condominium unit. We agree with plaintiff there is a triable controversy as
to whether he has standing to pursue his intentional emotional distress infliction and
nuisance causes of action. We agree with defendants though that plaintiff does not have
standing to pursue his negligence claim which was based upon his homeowners
association membership. Thus, we reverse the summary judgment. As to all other
claims, plaintiff has raised no issues. As any issues concerning any other claim have
been waived, we direct that summary adjudication be entered on those causes of action.
(Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4;
Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 70 disapproved on another point
in Bailey v. Los Angeles (1956) 46 Cal.2d 132, 139.)


                                   II. BACKGROUND


                             A. Second Amended Complaint


       The operative pleading is the second amended complaint filed September 15,
2011. The second amended complaint alleges claims against: the homeowners
association; Ms. Fountain; Loren Hill; Ms. Smith; and the property management
company. The second amended complaint alleges eight causes of action for:
enforcement of inspection rights; unlawful, unfair and fraudulent business practices in
violation of Business and Professions Code section 17200 et seq.; breach of fiduciary

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duty; breach of the homeowners association’s declaration of covenants, conditions and
restrictions and bylaws; intentional emotional distress infliction; negligence; declaratory
and injunctive relief; and nuisance.
       The second amended complaint alleges plaintiff and his wife, Cameron Kay,
reside in a condominium unit they purchased on March 17, 2006. As owners of the unit,
they are homeowners association members. The second amended complaint alleges on
July 30, 2009, Ms. Smith’s sister and a group of teenagers slammed a basketball against
plaintiff’s garage door for over 30 minutes. Ms. Smith was positioned nearby with a
camera in hand. Plaintiff, Ms. Kay, Ms. Smith and the other teenagers then exchanged
words. Ms. Kay, who was five weeks pregnant, became fearful for her life and later
suffered a miscarriage.
       In addition, in August and September 2010, plaintiff and Ms. Kay requested
assistance from defendants to deal with Jason Pong’s tenants. But defendants did
nothing. Mr. Pong’s tenants socialized, smoked and drank alcohol in the common area
immediately outside and underneath plaintiff’s front and back windows. They smoked
and talked loudly from one to six hours and prevented plaintiff and Ms. Kay from
sleeping, sometimes until 2:30 to 4:30 a.m. The cigarette and marijuana smoke wafted
through the windows into plaintiff’s condominium unit. Beginning in September 2010,
Ms. Fountain allegedly joined Mr. Pong’s tenants as they smoked and talked loudly
adjacent to plaintiff’s open windows.
       In support of the fifth cause of action for intentional emotional distress infliction,
plaintiff alleges each defendant was in privity with him. According to plaintiff, they were
in privity because of the homeowners association’s governing documents or the
agreement with the property management company. Defendants allegedly caused
plaintiff and Ms. Kay to suffer insomnia, stress and four miscarriages through: the
wrongful imposition of a fine; denial of access to association records; harassment of
plaintiff and Ms. Kay by Ms. Smith and others; lack of cooperation from the board and
management company; noxious cigarette smoke; and denial of access to some of the
common areas.

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       The sixth cause of action for negligence is premised on duties arising from the
homeowners association bylaws and its conditions, covenants and restrictions. The sixth
cause of action alleges: “At all relevant times, [the management company] had assumed
a duty pursuant to contract to manage and oversee the affairs of the [homeowners
association] for the [homeowners association’s] membership, including plaintiffs.
According to the [homeowners association’s] governing documents, the [management
company] is hired by the Owners of the [homeowners association], and is accountable to
the [homeowners association’s] owners. The defendants other than the [management
company], have duties pursuant to the Davis-Stirling Common Interest Development Act
and case law interpreting it, in conjunction with the [homeowners association’s]
governing documents such as the Bylaws and [the conditions, covenants, and
restrictions]. . . .” As for the negligence cause of action, the second amended complaint
alleges: defendants breached their duties owed to plaintiff as an association member;
defendants’ alleged failure to maintain the common area roof and deletion of the
association’s reserves rendered plaintiff’s condominium unit valueless; plaintiff and
Ms. Kay suffered serious emotional distress because of defendants’ negligent acts; and
the negligent acts included defendants’ encouragement of the use of the common area
adjacent to plaintiff’s unit as an area for smoking and partying.
       Concerning the eighth cause of action for nuisance, the second amended complaint
alleges defendants’ actions interfered with plaintiff’s free use of his condominium unit.
The second amended complaint alleges: “Defendants’ aforementioned actions, including
the loss and quiet enjoyment of plaintiffs’ unit during 15 months of construction, denial
of plaintiffs the right to enter portions of the Association’s common areas, the
interference and denial of access to service public utilities connected to plaintiffs’ unit,
and the failure to act and instead encourage the use of the common area adjacent to
plaintiffs’ unit as a smoking area for drug users and boisterous partiers has created a
public and private nuisance which was harmful to plaintiffs’ health; offensive to their
senses; and interfered with the free use of plaintiffs’ unit, so as to interfere with the
comfortable enjoyment of life.” Defendants’ alleged conduct, according to the second

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amended complaint, was done with reckless and conscious disregard of plaintiff’s rights
and well-being.
       On December 28, 2011, the trial court sustained in part defendants’ demurrer
without leave to amend. The intentional infliction of emotional distress cause of action
was dismissed as to all defendants except Ms. Fountain and Ms. Smith. In addition, the
nuisance cause of action against Ms. Hill was dismissed.


                                 B. Summary Judgment


       On April 27, 2012, defendants moved for summary judgment or adjudication.
They argued plaintiff had no standing to sue defendants. Defendants argued plaintiff had
no ownership interest in the condominium unit owned by Ms. Kay. They contended
ownership of the subject property was a prerequisite to standing to assert each of
plaintiff’s causes of action. In support of their motion, defendants submitted plaintiff’s
deposition testimony. Plaintiff testified he owned the unit with Ms. Kay but admitted his
name was not on the grant deed. Defendants also submitted a certified copy of the grant
deed, which identified Ms. Kay, “an unmarried woman,” as the owner.
       In addition, defendants argued plaintiff and Ms. Kay failed to plead a nuisance
claim. Defendants’ denial of plaintiff’s access to some common areas and failure to
prevent smoking and parties in common areas adjacent to plaintiff’s unit did not support a
nuisance claim. Defendant also contended plaintiff failed to plead an intentional
infliction of emotional distress claim against Ms. Fountain and Ms. Smith. They argued
plaintiff failed to prove severe emotional distress. Defendants also made additional
arguments not pertinent to this appeal.
       In opposition, plaintiff and Ms. Kay submitted declarations stating they had been
married since March 4, 2006. They have resided at their condominium unit since their
marriage and purchase of the unit in March 2006. They also stated they agree the
condominium unit is community property. Plaintiff and Ms. Kay declared: they were
denied access to common areas; defendants hired an unlicensed contractor to work on the

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common area adjacent to their unit; there was significant lead, dust and loud noise seven
days a week from the construction; they were harassed by Ms. Smith and the teenagers;
and defendants refused to abate the smoking and noise problems caused by Mr. Pong’s
tenants.


                                    C. Trial Court Ruling


        On July 19, 2012, the trial court granted defendants’ summary judgment motion.
The trial court ruled plaintiff lacked standing to sue on the claims because they were
expressly predicated on ownership of the condominium unit. The trial court noted the
summary judgment opposition did not argue plaintiff could still maintain his claims even
if he was not on the title. The summary judgment order was entered on September 12,
2012.


                                      III. DISCUSSION


                                   A. Standard Of Review


        In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, our Supreme
Court described a party’s burdens on summary judgment motions as follows: “[F]rom
commencement to conclusion, the party moving for summary judgment bears the burden
of persuasion that there is no triable issue of material fact and that he is entitled to
judgment as a matter of law. That is because of the general principle that a party who
seeks a court’s action in his favor bears the burden of persuasion thereon. [Citation.]
There is a triable issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof. . . . [¶] [T]he party moving
for summary judgment bears an initial burden of production to make a prima facie
showing of the nonexistence of any triable issue of material fact; if he carries his burden

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of production, he causes a shift, and the opposing party is then subjected to a burden of
production of his own to make a prima facie showing of the existence of a triable issue of
material fact . . . . A prima facie showing is one that is sufficient to support the position
of the party in question. [Citation.]” (Fns. omitted; see Kids’ Universe v. In2Labs (2002)
95 Cal.App.4th 870, 878.)
       We review de novo the trial court’s decision to grant the summary judgment
motion. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th
315, 336; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68.) The trial
court’s stated reasons for granting summary judgment are not binding on us because we
review its ruling not its rationale. (Coral Construction, Inc. v. City and County of San
Francisco, supra, 50 Cal.4th at p. 336; Continental Ins. Co. v. Columbus Line, Inc.
(2003) 107 Cal.App.4th 1190, 1196.) In addition, a summary judgment motion is
directed to the issues framed by the pleadings. (Turner v. Anheuser-Busch, Inc. (1994) 7
Cal.4th 1238, 1252; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673,
overruled on a different point in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527.) Those
are the only issues a motion for summary judgment must address. (Conroy v. Regents of
University of California (2009) 45 Cal.4th 1244, 1249-1250; Goehring v. Chapman
University (2004) 121 Cal.App.4th 353, 364.)


                                         B. Standing


       Plaintiff argues the trial court erred in granting summary judgment on the
nuisance, negligence, and intentional emotional distress infliction causes of action. The
trial court ruled plaintiff did not have standing to sue defendants on any of the claims.
The trial court reasoned plaintiff’s claims were expressly predicated on ownership of the
condominium unit. However, plaintiff was not the condominium owner. We discuss
each challenged causes of action in turn.
       First, plaintiff contends he has standing to sue for negligence. To assert a
negligence claim, plaintiff must show: defendant owed a legal duty to plaintiff;

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defendant breach that duty; and that breach proximately caused plaintiff’s injuries.
(Conroy v. Regents of University of California, supra, 45 Cal.4th at p. 1250; John B. v.
Superior Court (2006) 38 Cal.4th 1177, 1188.) We have previously described the
specific allegations in the second amended complaint concerning the source of
defendants’ duty to protect plaintiff. And as noted, the second amended complaint’s
allegations define the issues that are litigated in connection with a summary judgment or
adjudication motion. (Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th at p. 1252; Ann
M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 673.) That duty, according to
the second amended complaint, arose from the rights attendant to homeowners
association membership and the homeowners association’s conditions, covenants and
restrictions. More specifically, plaintiff alleges defendants owed him a legal duty
because of his homeowners association membership. Additionally, plaintiff alleges he is
a homeowners association member because of his ownership interest in the condominium
unit with Ms. Kay. But the uncontroverted evidence shows plaintiff is not an owner of
the condominium. Thus, he is not an association member. Because defendants’ legal
duty is predicated on membership in the association, plaintiff does not have standing to
bring a negligence claim.
       Second, plaintiff also argues he has standing to bring an intentional emotional
distress infliction claim against Ms. Fountain and Ms. Smith. An intentional emotional
distress infliction claim arises when: there is extreme and outrageous conduct done with
the intention of causing, or reckless disregard of the probability of causing, emotional
distress; the plaintiff suffered severe or extreme emotional distress; and defendant’s
outrageous conduct is the actual and proximate cause of the emotional distress. (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1050, Potter v. Firestone Tire & Rubber Co. (1993) 6
Cal.4th 965, 1001; Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) Our
Supreme Court explained: “A defendant’s conduct is ‘outrageous’ when it is so
“‘“extreme as to exceed all bounds of that usually tolerated in a civilized community.”’”
(Hughes v. Pair, supra, 46 Cal.4th at pp. 1050-1051; Potter v. Firestone Tire & Rubber
Co., supra, 6 Cal.4th at p. 1001.) None of the elements of plaintiff’s intentional

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emotional distress infliction claim requires he prove he had ownership interest in the
apartment or any relationship with Ms. Fountain and Ms. Smith. It was error to dismiss
plaintiff’s intentional emotional distress infliction claim based on standing grounds. We
express no opinion concerning the merits of plaintiff’s intentional emotional distress
infliction claim. The only issue litigated by defendants on appeal is the standing
question.
       Third, the nuisance claim should not have been dismissed. Civil Code section
3479 defines a nuisance thusly, “Anything which is injurious to health, including, but not
limited to, the illegal sale of controlled substances, or is indecent or offensive to the
senses, or an obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property, or unlawfully obstructs the free passage or
use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin,
or any public park, square, street, or highway, is a nuisance.” Civil Code section 3480
provides, “A public nuisance is one which affects at the same time an entire community
or neighborhood, or any considerable number of persons, although the extent of the
annoyance or damage inflicted upon individuals may be unequal.” The interference must
be both substantial and unreasonable to qualify as a public nuisance. (People ex rel.
Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105; Melton v. Boustred (2010) 183
Cal.App.4th 521, 542; County of Santa Clara c. Atlantic Richfield Co. (2006) 137
Cal.App.4th 292, 305.) A private nuisance is one that is not defined by Civil Code
section 3480 as a public nuisance. (Civ. Code § 3481.) Civil Code section 3493
provides, “A private person may maintain an action for a public nuisance, if it is specially
injurious to himself, but not otherwise.” When the nuisance is both a public and private
one, plaintiff need not show damage different in kind from that suffered by the general
public. (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1551; Venuto v.
Owens-Corning Fiberglass Corp. (1971) 22 Cal. App.3d 116, 124.) Neither the public
nor private nuisance claim requires plaintiff to prove ownership interest in the
condominium unit. (Birke v. Oakwood Worldwide, supra, 169 Cal.App.4th at p. 1551
[“ [A] child living with her family in a rented apartment has standing to bring a private

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nuisance claim based on interference with her right to enjoy the rented premises”].) It
was error to grant summary judgment against plaintiff based on lack of standing as to the
nuisance claim.


                                C. Post-judgment matters


       Defendants contend that the summary judgment should be affirmed as Ms. Kay
has failed to prevail at her trial. Other than in exceptional circumstances, post-judgment
matters are not pertinent on appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 405;
Bombardier Recreational Products, Inc. v. Dow Chemical Canada ULC (2013) 216
Cal.App.4th 591, 605.) Defendants have failed to demonstrate by citation to judicially
noticeable post-judgment evidence that this case falls within such exceptional
circumstances.




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                                        IV. DISPOSITION


       The judgment is reversed. Summary adjudication is entered on all counts, except
the fifth and eighth causes of action for intentional emotional distress infliction and
nuisance respectively, in favor of defendants: Abourne House III Homeowners
Association; LB Property Management; Katrina Fountain; and Pearl Scott Smith. The
fifth and eighth causes of action are to proceed to trial. All parties are to bear their own
costs on appeal.


                             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                             TURNER, P. J.




We concur:




       MOSK, J.




       MINK, J.*




       *
        Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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