Preview
1 Craig J. Rolfe (SBN 256319)
FREEMAN MATHIS & GARY, LLP
2 1013 Galleria Boulevard, Suite 250
3 Roseville, California 95678-1363
Telephone: (916) 472-3300
4 craig.rolfe@fmglaw.com
5 HAL CHASE, JR., ESQ. – State Bar No. 95789
STRATMAN & WILLIAMS-ABREGO
6
P.O. Box 258829
7 Oklahoma City, OK 73125-8829
Phone: (510) 457-3440
8 Email: norcal.legal@farmersinsurance.com
9 Attorneys for Defendants
FAIRWAY VIEW ESTATES
10 HOMEOWNERS ASSOCIATION
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF SONOMA
13
14 JOSEPH ROMANO, individually and as trustee Case No.: SCV-262714
of THE JOSEPH AND PIXIE ROMANO
15 LIVING TRUST, DEFENDANT FAIRWAY VIEW
ESTATES HOMEOWNERS
16 Plaintiffs ASSOCIATION’S TRIAL BRIEF
17 vs.
Date: June 16, 2023
18 FAIRWAY VIEW ESTATES HOMEOWNERS Time: 8:30 a.m.
ASSOCIATION; and DOES 1-20, inclusive, Dept.: 17
19
Defendants.
20 Complaint Filed: June 29, 2018
Trial Date: June 16, 2023
21
22
23
24 I. INTRODUCTION
25 This litigation involves an owner of a residential property that knowingly agreed to be
26 bound by Fairway View Homeowners Association’s (“Association” or “FVEHOA”) CC&Rs upon
27 purchase of the residential property located at 4723 Muirfield Court in Santa Rosa, California. Mr.
28 Romano has confirmed that upon purchase of this property, he knew that he was purchasing a
1
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 property within a Common Interest Development governed by a homeowner’s association’s
2 CC&Rs. Regardless of this knowledge, Mr. Romano does not believe he is required to comply with
3 FVEHOA’s CC&Rs.
4 This matter involves Mr. Romano’s proposed construction of a game room and a garage
5 with an Accessory Dwelling Unit (“Adu”). Mr. Romano claims to have obtained approval for plans
6 he submitted back in 2013. FVEHOA will establish by way of admissible evidence that Mr.
7 Romano has not received approval of his present plans, nor any plans submitted in 2017 to present.
8 It is FVEHOA’s position based upon admissible evidence and applicable legal authority that
9 it has a right and obligation to enforce its CC&Rs. FVEHOA has responded appropriately to all of
10 Mr. Romano’s submissions to its Architectural Control Committee. FVEHOA has not waived any
11 rights by way of any prior approval of plans in 2013. FVEHOA has made every reasonable effort to
12 resolve this situation but this has proven extremely difficult if not impossible when a member
13 firmly believes that the CC&Rs simply do not apply to his property.
14 FVEHOA respectfully submits this Trial Brief in an effort to educate this Court on the status
15 of this dispute as well as the applicable legal authority to be applied at trial.
16 II. FACTUAL BACKGROUND
17 Fairway View Estates is a community of 118 single family residences. The homes were
18 constructed in the 1980s. In 2010, the Romanos purchased two adjoining lots at 4723 Muirfield in
19 the Fairway View Estates development in Santa Rosa.
20 When someone buys a home within Fairway View Estates, the homeowner necessarily
21 agrees to be bound by the restrictive covenants contained within the CC&Rs of Fairway View
22 Estates. (Alfaro v. Cmty House Imp. Svs. v. Planning Ass’n, Inc. (2009) 171 Cal.App.4th 1356,
23 1373.) (CC&Rs §1.) Thus, each of the owners of Fairway View Estates is a member of the
24 Association.
25 Per the bylaws and statute, the FVEHOA is governed by a seven-member board of directors,
26 the duties and the powers of which are delegated by law and by the Association’s governing
27 documents. (CC&Rs, §2.b, §9.) Per its CC&Rs, FVEHOA’s board of directors is vested with the
28 authority to “perform any and all acts which may be necessary or proper for or incidental to the
2
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 exercise of the express powers of the Association for the peace, health, comfort, safety and/or
2 general welfare of the Owners and their guests.” (CC&Rs §9; Corp. Code §7210.) California courts
3 have long noted that “[c]ommon interest developments are best operated by the board of directors,
4 not the courts.” (Watts v. Oak Shores Cemetery Ass’n. (2015) 235 Cal.App.4th 466, 472.)
5 Mr. Romano has confirmed at deposition that he understood when purchasing the Muirfield
6 property that this property was part of a common interest development, homeowner’s association,
7 with CC&Rs. Mr. Romano is bound by the CC&Rs.
8 III. THE KEY ISSUE: A CONSTRUCTION PROJECT
9 Mr. Romano’s main issue is the Association’s refusal to approve plans for new structures on
10 his property, which include a proposed construction of a game room and a garage, and an
11 Accessory Dwelling Unit, essentially an apartment on the second floor of the proposed garage. On
12 at least four occasions from 2017-early 2020, Mr. Romano has submitted and the Association has
13 not approved plans for Romano’s contemplated construction.
14 The Association’s decision not to approve Romano’s plans is supported by the CC&R’s
15 requirements that must be met before any member can commence a construction project. The
16 Association’s refusal to accede to Mr. Romano’s relentless demands are based upon a reasonable
17 and accurate interpretation of the setback and building envelope rules of FVEHOA’s CC&Rs and
18 Architectural Review Guidelines: structures must be at least 15-feet from a property boundary lines,
19 and each of these proposed structures, especially the game room intrude to within 15-feet of the
20 boundary. Moreover, the Association had sought and received legal advice from their longtime
21 counsel.
22 Romano, however, claims that the setback provisions of the CC&Rs do not apply to his
23 proposed construction, and that Association’s refusal to allow him to build is capricious, arbitrary
24 and in bad faith. He claims that certain local ordinances and recent state statutes govern set back
25 issues. It is FVEHOA’s position that Mr. Romano is incorrect, especially with regard to Santa
26 Rosa’s set back requirements, and particularly as it relates to Mr. Romano’s contemplated
27 construction of a game room and gym.
28
3
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 Mr. Romano claims he sustained damages of $5mil or more because, according to him, the
2 Association had previously approved his construction plans in 2013, and that the Association’s
3 subsequent refusal to allow him to build, has led to delays, and enormous increased construction
4 costs. Mr. Romano’s argument is misleadingly simple: the Association allowed me to build in 2013,
5 why did it refuse to allow me to build in 2017, and in 2018 and in 2020?
6 The answer is also simple: the plans submitted by Romano in 2013 differ from the plans
7 submitted in 2017, 2018 and 2020. Most importantly, the plans submitted in 2013 do not show
8 structures within the 15-foot setback. The plans submitted in 2017, 2018 and 2020 show structures
9 which fall within the 15-foot setback. And the structures depicted in Romano’s post-2013 plans are
10 significantly larger than those in his 2013 plans.
11 1. History of Project Plans Submitted by Romano
12 In the Summer of 2013, Mr. Romano apparently submitted plans to someone named Jim
13 Doyle, who at the time served as a one-man committee, called the Architectural Review Committee
14 (“ACC”). Mr. Romano has plans, which he says were approved by Doyle in August 2013. A seal, a
15 stamp with what seems to be Doyle’s signature, appears on these plans.
16 The Association does not have a copy of the 2013 plans. Mr. Romano had the only original
17 version of the plans purportedly approved by Jim Doyle, who has since passed away.
18 Mr. Romano last submitted plans in February 2020—long after the filing of the lawsuit—
19 which FVEHOA accepted in part, but otherwise rejected, because the plans call for the construction
20 of structures which fall within fifteen feet of the property’s boundary lines, in particularly the game
21 room addition. The FVEHOA also has expressed concerns about the aesthetics of the proposed
22 construction of the garage/ADU—particularly as it relates to its height, apparently 32-feet from
23 ground to rooftop.
24 It has now been discovered through two site inspections that regardless of the plans Mr.
25 Romano is working off of, he is not building according to his own plans. Mr. Stokes, FVEHOA
26 retained construction expert, has identified wall heights and lengths that are much larger than the
27 plan specifications.
28 ///
4
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 Additionally, the second site inspection also revealed issues with Mr. Romano’s proposed
2 new driveway. As the parties were attempting to negotiate settlement, it was learned that the subject
3 plans did not include a rendering of the driveway Mr. Romano planned to install. This new
4 driveway will result in water runoff issues that Mr. Romano has never addressed.
5 Mr. Romano is not building according to plan and his plans are still incomplete.
6 IV. LIABILITY
7 A. FVEHOA has the Right and Obligation to Enforce the CC&Rs
8 Mr. Romano’s case is premised on the notion that a cause of action for breach of fiduciary
9 duty, breach of contract, negligence, nuisance, and declaratory relief can be founded upon an
10 association’s enforcement of specific provisions contained with its Declaration of Covenants,
11 Conditions and Restrictions. Put another way, Mr. Romano claims the Association has breached
12 fiduciary duties owed to him, because it has not allowed him to proceed with a project which
13 undeniably violates the Associations’ CC&Rs, building structures which extend beyond the
14 building envelope restrictions imposed by the CC&Rs. Mr. Romano thus posits that the FVEHOA’s
15 decision to require Mr. Romano to abide by the CC&Rs was unreasonable, arbitrary, capricious,
16 and in bad faith. FVEHOA’s position is that no liability should attach to an association because a
17 board demands that a member abide by the CC&Rs.
18 Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642 is instructive. In Cohen,
19 the plaintiffs, property owners, initiated a lawsuit against Kite Hill Community Association, for its
20 approval of a stone fence in an area which was improper, and violated the association’s CC&Rs.
21 The plaintiffs alleged the association’s architectural committee breached its duty to plaintiffs by
22 approving construction of a stone fence contrary to the building standards contained in a declaration
23 of covenants, conditions and restrictions. (Id. at pp. 645-646.) The trial court sustained the
24 association’s demurrer to the complaint. But the court of appeal reversed, holding that the approval
25 of a fence not in conformity with the CC&Rs, could give rise to an action by individual
26 homeowners affected by the improvement. (Id.at p. 647.) As noted by the Cohen court, the
27 Association has an affirmative duty to enforce the CC&Rs in this respect:
28
5
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 It is a settled rule of law that homeowners’ associations must exercise their authority to
approve or disapprove an individual homeowner’s construction or improvement plans in
2
conformity with the declaration of covenants and restrictions, and in good faith. (Id. at p.
3 650) (emphasis added.)
4
The California Supreme Court has observed, “[g]enerally courts will uphold decisions made
5
by the governing board of an owners association so long as they represent good faith efforts to
6
further the purposes of the common interest development, are consistent with the development’s
7
governing documents, and comply with public policy.” (Nahrstedt v. Lakeside Village
8
Condominium Assn., Inc. (1994) 8 Cal.4th 361, 374.) “Indeed, giving deference to use restrictions
9
contained in a condominium project’s originating documents protects the general expectations of
10
condominium owners ‘that restrictions in place at the time they purchase their units will be
11
enforceable.’” (Id. at 377.)
12
Regardless of whether any plans had been approved in 2013, the Association’s board had
13
the right, if not the obligation, to enforce the CC&Rs when Romano submitted his revised,
14
modified plans in 2017 and 2018. To be sure, the CC&Rs give the ACC the express right to
15
withhold approval, even if approval of the plans had been previously provided:
16
17 Waiver: The approval by the Architectural Control Committee of any plans, drawings or
specifications for any work done or proposed, or for any other matter requiring the approval
18
of the Architectural Control Committee under these restrictions, shall not be deemed to
19 constitute a waiver of any right to withhold approval of any similar plan, drawing,
specification or matter subsequently submitted for approval. (CC&Rs, §17(l).)
20
21 This provision tracks case law, which holds that even when a mistake approving a project is
22 made, an association board is authorized to correct the error to ensure compliance with the CC&Rs.
23 Even more, the evidence will show that Mr. Romano made many assurances of actions he would
24 take to ensure compliance with the CC&Rs in his effort to obtain approval in 2013, but that he
25 never performed.
26 The propriety of correcting a mistake was acknowledged by the court in Woodridge
27 Esconido v. Nielsen (2005) 130 Cal.App.4th 559. In Woodbridge, after receiving approval from the
28 architectural committee, a homeowner built a deck extended into the five-foot-wide side yard
6
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 easement over the adjacent side yard of a neighboring lot. After the deck had been built, the
2 association’s board found that the architectural committee had erroneously approved the
3 construction of the deck, as it violated the association’s restrictive covenants. On summary
4 judgment, Nielsen, the homeowner argued that the association had acted arbitrarily in demanding
5 the removal of the deck. The trial court, however, granted summary judgment in favor of the
6 association, because the homeowner’s deck violated the association’s CC&Rs. (Id. p. 570-574.) The
7 court of appeals affirmed the lower court summary judgment grant, acknowledging that the deck
8 was a violation of the CC&Rs. (Id. at 575.)
9 B. Improvements on a Lot Require Approval by FVEHOA’s ACC
10 The FVEHOA’s CC&Rs, like others throughout the state, constitutes “a general scheme for
11 maintenance, protection and enhancement of value of the Development, one that entrusts to the
12 Association the management, maintenance and preservation of the Development’s common areas
13 and confers on the Board the power and authority to maintain and repair those areas.” (Lamden v.
14 La Jolla Shores Clubdominium Homeowners Association (1999) 21 Cal.4th 249, 268.) An
15 important function of the Association is to preserve the aesthetic quality and property value within
16 the community. To this end, the CC&Rs provide for an Architectural Control Committee, whose
17 duty is “to consider and act upon such proposals or plans submitted to it pursuant to the terms
18 hereof . . . and to carry out all other duties imposed upon it by these Restrictions.” (Ex. 1, CC&Rs,
19 §17.) Review and approval by the ACC is mandatory:
20
21 No Improvement may be undertaken on a Lot without prior approval of the
Architectural Control Committee.
22 (CC&Rs, §17(e).)
23
24 Per the CC&Rs, the ACC shall grant the requested approval only if the Owner complies
25 with the application process set forth in the CC&Rs, and only if, “The Architectural Control
26 Committee shall find the plans and specifications conform to these Restrictions, and to the
27 Architectural Control Guidelines in effect at the time such plans were submitted to the Committee.”
28 (CC&Rs, §17(f).)
7
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 Among the restrictions set forth in the CC&RS are those which require compliance with the
2 setback and building envelope dimensions shown on the subdivision map filed with the County of
3 Sonoma. “Building Envelope” is a defined term under the CC&Rs:
4
5 “Building Envelope” shall be considered as building setback lines and shall mean
that certain area of a Lot designated on the Map1 in which the construction of
6 improvements is permitted in accordance with the provisions of these Restrictions.”
7 (CC&Rs, §2(d).)
8
9 The CC&Rs mandate: “No such construction shall be accomplished except within the
10 Building Envelope as such are set forth in the Subdivision Map.” (Ex. 1, CC&Rs, §28(t).) The
11 Architectural Review Guidelines also emphasize, “Siting must be within the building envelope.”
12 (ARG, p. 2.)
13 C. Mr. Romano Wants to Build Structures Which Violate the CC&Rs’ Setback
14 Requirements
15 As noted, at the heart of this case is Mr. Romano’s desire to build additional structures on
16 his property, including additional garages, storage areas, a game room and additional
17 improvements. The project requires approval by the FVEHOA Architectural Control Committee
18 (“ACC”). For purposes of this litigation, the focus is on two proposed structures: a gameroom and
19 gym; and, a garage with an upstairs accessory dwelling unit.
20 The construction proposed by Mr. Romano, in particular his proposed game room and gym,
21 violates the set back and building envelope provisions of the CC&Rs. Nevertheless, Romano insists
22 that he be allowed to proceed with the project, even though the construction would violate the
23 CC&Rs. He claims that he should be allowed to proceed with the construction because he
24 previously received approval in 2013 to commence a building project, and because he believes a
25
26 1
Per the CC&Rs, “‘Map’ shall mean the Subdivision Map entitled ‘FAIRWAY VIEW ESTATES
27 CITY OF SANTA ROSA, STATE OF CALIFORNIA’, which Map was filed for the record in the
Office of the Recorder of the County of Sonoma, State of California, on December 5, 1980 in Book
28 315 of Maps at Pages 13 through 19, inclusive.” (Ex. 1, CC&Rs, §2(k).)
8
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 local ordinance and a California statute trumps the CC&Rs’ set back requirements. FVEHOA
2 believes Mr. Romano is mistaken.
3 D. The Genesis of the Dispute
4 The Romano story starts in 2010, when the Romanos purchased two adjoining lots at 4723
5 Muirfield in the Fairway View Estates development in Santa Rosa. In 2012, Mr. Romano retained
6 Valeri Reid, an architect/designer, and Kenneth Campbell, a structural engineer, to prepare plans
7 for a game room. He later hired someone named Curt Nichols of Carlile Macy, an architecture and
8 civil engineering firm. At some point, we are not sure of the precise date—Mr. Romano decided to
9 build two additional garages, called the Main Garage and the Garden Garage. Mr. Romano later
10 still hired different architects and engineers.
11 Mr. Romano claims to have had plans drawn and submitted to Mike Doyle the chair of the
12 Architectural Control Committee (“ACC”) for review and approval in late July 2013. Because
13 Mike Doyle died in 2014, and because the record keeping of the ACC and FVEHOA was not
14 particularly good at that time, FVEHOA does not have any records of the precise plans that Mr.
15 Romano submitted in 2013. Mr. Romano claims to have a complete copy of these plans, and the
16 City of Santa Rosa will not release these plans without his consent, so the complete plans have not
17 been produced to FVEHOA.
18 Mr. Romano claims Mr. Doyle’s 2013 approval allows him to proceed with the construction
19 of two structures, a garage/ADU2 and a game room and gym. The garage/ADU extends a short
20 distance into the 15-foot setback. The game room and gym is situated well within 15-feet of the
21 boundary of his property, and thus well within the CC&R’s proscribed 15-foot setback.
22 Mr. Romano has argued that due to this previous approval, he has had an absolute right to
23 proceed with his proposed construction project. FVEHOA’s position based upon a reasonable
24
25 2
The inclusion of an accessory dwelling unit was an addition to Mr. Romano’s plans, designed to
26 address Santa Rosa’s Planning Commissions concerns about the size of the garage. In other words,
27 Romano simply added a ADU in order to fall within the parameters of California’s new statute,
28 which encourages construction of ADUs to address California’s housing shortage.
9
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 interpretation of the applicable CC&Rs as well as applicable legal authority believes Mr. Romano is
2 wrong for several reasons.
3 First, Mr. Romano did not proceed with the work within a one-year deadline set forth in the
4 CC&Rs. Pursuant to the CC&Rs in effect the time:
5
6 (h) Proceeding with Work: Upon receipt of approval from the Architectural Control
Committee . . . the Owner shall, as soon as practicable, satisfy all conditions thereof and
7 diligently proceed with the commencement and completion of all construction,
8 reconstruction, refinishing, alterations and excavations pursuant to said approval, said
commencement to be, in all cases, within one year from the date of such approval. If the
9 owner shall fail to comply with this paragraph, any approval given pursuant to paragraph
10 (g) above, shall be deemed revoked unless the Architectural Control Committee, upon
written request of the Owner made prior to the expiration of the one-year period, extends
11 the time for such commencement. No such extension shall be granted except upon a finding
12 by the Architectural Committee that there has been no change in the circumstances upon
which the original approval was granted. (CC&Rs, §17(h).)(emphasis added.)3
13
14 The evidence obtained in this case does not suggest that Mr. Romano took any affirmative
15 steps to proceed with the commencement of the project within one year from the date of approval.
16
17
3
The current CC&Rs—that is, the First Restated CC&Rs incorporate similar language, and
18
specifies that commencement includes the issuance of building permits:
19
20
21 (h) Proceeding with Work: Upon receipt of approval from the Architectural Control Committee
. . . the Owner shall, as soon as practicable, satisfy all conditions thereof and diligently
22 proceed with the commencement and construction of all construction, reconstruction,
23 refinishing, alterations and excavations pursuant to said approval, said commencement
including the issuance of any required building permits, to be, in all cases, within one year
24 from the date of such approval. If the owner shall fail to comply with this paragraph, any
25 approval given pursuant to paragraph (g) above, shall be deemed revoked unless the
Architectural Control Committee, upon written request of the Owner made prior to the
26 expiration of the one-year period, extends the time for such commencement. No such
27 extension shall be granted except upon a finding by the Architectural Committee that there
has been no change in the circumstances upon which the original approval was granted.
28 (CC&Rs, §17(h).)
10
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 To date, Mr. Romano has not produced any written evidence—no applications, no correspondence,
2 no emails—showing any attempt to obtain permits from City of Santa Rosa.
3 The few documents produced by Romano hint at when Romano actually commenced the
4 project. First, the permits were not issued until July and December 2017—four years after having
5 Mr. Romano purportedly received approval from the Association. Second, the Permit Number
6 shown on the permits indicate Mr. Romano did not apply for the permits until 2016: B16-3228;
7 B16-3218.4 Moreover, if Mr. Romano needed more time, he was obliged to request the ACC for
8 additional time to start the project. But Romano did not make a written request prior to the
9 expiration of the one-year period to extend the time for such commencement.
10 Mr. Romano failed to start the project within a year, as such any approval given to Mr.
11 Romano in August 2013 is “deemed revoked.” (CC&Rs, §17(h).) And contrary to Mr. Romano’s
12 assertions, the board was not required to warn Mr. Romano of his tardiness.
13 Mr. Romano has attempted to manufacture an impression that the construction project he
14 proposed in 2017 and the project as revised in 2018, and again revised in 2020, were identical to the
15 project accepted by the ACC in August 2013. The evidence paints a different story.
16 On July 18, 2017, Mr. Romano sent an email which referenced plans “approved by the
17 HOA Architectural Committee on 8-13-2013.” Several months later, on December 20, 2017, Mr.
18 Romano submitted an application to the ACC for approval of an “additional game room, main
19 garage, garden garage, general improvement.”
20 Far from acting in bad faith, or capriciously or arbitrarily, the evidence shows that
21 FVEHOA’s ACC scrupulously followed the CC&Rs and the Architectural Control Guidelines in
22 repeatedly asking Mr. Romano to provide the necessary information (e.g., drawings, blueprints,
23 diagrams) for the ACC to make an informed decision. For example, on February 1, 2018, Stan
24 Clark, Chair of the ACC, wrote Mr. Romano, stating, “Unfortunately I think the best way to
25 characterize our review is to say these plans cannot be approved without significant changes.” As
26
27 4
In the designation “B16,” “B” stands for “Building” and “16” stands for 2016, the year in which
28 the application for a building permit was submitted by the owner.
11
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 noted in Clark’s email, Mr. Romano’s plans revealed departures from the building envelope
2 restrictions:
3 Proposed “Game Room” structure is not fully within the building envelope. Please resubmit
4 drawings for a structure that is within the building envelope. Proposed “Garden Garage”
5 structure is not fully within the building envelope. Please resubmit drawings for a structure
6 that is within the building envelope.
7
8 On February 23, 2018, Mr. Romano responded by advising Clark:
9
10 We are in the process of revising the actual location of the structure by surveying and
11 staking out the perimeters . . . Until we work out the details with our engineer we have no
12 further information to provide. The revision of the plans is in progress and we will provide
13 copies when they are completed. We expect the plans to be revised in a few weeks. We
14 provided the information submitted as a courtesy to the HOA.
15 ///
16 Romano’s response also challenged the validity of the CC&Rs restrictions, suggesting:
17
18 Building envelope lines are irrelevant to the process of positioning buildings being added to
a lot.
19
20 Building envelops [sic] are established as guides to placing buildings for a subdivision plan,
before its [sic] built out and are not restrictions for additions to properties.
21
22
E. Romano’s Plans Substantially Differ from Plans Submitted in 2013
23
On March 29, 2018, Mr. Romano submitted revised plans—which included plans prepared
24
in July 2016 and April 2017—that is, long after the August 2013 approval. And even if these plans
25
were incomplete. In fact, as late as April 17, 2018, Romano had failed to provide complete
26
information, as required by the Architectural Control Guidelines—guidelines which are considered
27
enforceable operating rules under the Davis Stirling Act. (Civ. Code, §4355; Rancho Santa Fe
28
Assn. v. Dolan-King (2004) 115 Cal.App.4th 28.) Mr. Romano’s omissions were glaring, including
12
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 the failure to include seven specific items required by the Guidelines. Critically, as noted by
2 counsel for FVEHOA:
3
Section 5(d) of the Guidelines requires the site plan include all structures in relation to the
4 building envelope. The plans submitted by the Romanos do not show the building envelope
5 lines.
6 In January 2020, Mr. Romano submitted yet another set of plans to the ACC, which differed
7 from the previously submitted sets of plans. But these plans, especially those for the game room,
8 again failed to comply with the CC&R set back requirement.
9 The evidence produced by Mr. Romano shows no fewer than four different sets of plans,
10 generated at four different times by different architects, each depicting different buildings on
11 different locations on his property. The various plans submitted by Mr. Romano were prepared by
12 different engineers and architects, on different dates. Suffice to say, the plans presented to
13 FVEHOA’s ACC in 2017 and 2018 and 2020 differ significantly from the plans Mr. Romano
14 claims to have been approved in August 2013.
15 F. The CC&Rs Do Not Violate the Santa Rosa’s Setback Ordinance.
16 To emphasize, it is undisputed that the construction of the game room and gym proposed by
17 Mr. Romano intrudes within the fifteen-foot set back specified in the Final Map referenced in the
18 CC&Rs. Mr. Romano’s case therefore depends upon an interpretation of law, which suggests that a
19 city zoning ordinance which provides for a five-foot set back, instead of the FVEHOA fifteen-foot
20 set back, trumps the building envelope requirements set forth in the Association’s CC&Rs. It is
21 FVEHOA’s position that Mr. Romano is wrong.
22 The Davis-Sterling Act governs. Civil Code §4765 states:
23 a) This section applies if the governing documents require association approval
24 before a member may make a physical change to the member’s separate interest
25 or to the common area. In reviewing and approving or disapproving a proposed
26 change, the association shall satisfy the following requirements:
27 ...
28
13
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 (3) Notwithstanding a contrary provision of the governing documents, a decision on
2 a proposed change may not violate any governing provision of law, including, but
3 not limited to, the Fair Employment and Housing Act (Part 2.8 (commencing with
4 Section 12900) of Division 3 of Title 2 of the Government Code), or a building code
5 or other applicable law governing land use or public safety.
6 (Civ. Code, §4765(a))(emphasis added.)
7
8 The 15-foot building set back provisions of the CC&Rs do not violate Santa Rosa’s building
9 ordinance. Nor is there any conflict between the governing documents and the law. (Civ. Code
10 §4205(a).)
11 The setback provisions of the CC&Rs are in harmony with the Santa Rosa ordinance,
12 which requires a minimum of five feet. The CC&Rs simply require a deeper setback. Indeed,
13 nothing prevents an association from adopting greater land use restrictions, than would otherwise
14 be afforded to a homeowner not residing in a community development. To be sure, this is one of the
15 benefits and burdens of living in a community development.
16 G. Overview of Law Regarding CC&Rs
17 The FVEHOA’s CC&Rs provides for, among other things, the orderly use and occupancy of
18 the lots and residence buildings constructed and to be constructed in Fairway View Estates and
19 permits the development of a residential scheme. (Ex. 1, CC&Rs, §1.) This means a Fairway View
20 owner must give up a certain degree of freedom of choice which he or she might otherwise enjoy in
21 separate, privately owned property. As noted by the California Supreme Court, “anyone who buys
22 a unit in a common interest development with the knowledge of its owners association’s
23 discretionary power accepts ‘the risk that the power may be used in a way that benefits the
24 commonality but harms the individual.” (Nahrstedt v. Lakeside Village Condominium Assn., Inc.
25 (1994) 8 Cal.4th 361, 374.)
26 We therefore believe the CC&R’s provisions pertaining to the Building Envelope are
27 binding upon Mr. Romano, notwithstanding any ordinances related to setbacks promulgated or later
28 promulgated by the City of Santa Rosa. As noted by one reviewing court:
14
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1
In an unbroken line of cases, California courts have held that a change in the zoning
2
restrictions in an area does not impair the enforceability of existing deed restrictions.
3 (Seaton v. Clifford (1972) 24 Cal.App.3d 46, 52.)
4
5 As a consequence, “[u]se restrictions in CC&R’s ‘should be enforced unless they are wholly
6 arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that
7 far outweighs any benefit.’” (Sui v. Price (2011) 196 Cal.App.4th 933, 940.) Thus, as a matter of
8 law, FVEHOA’s board “is empowered to enforce use restrictions contained in the project’s
9 declaration or master deed and to enact new rules governing the use and occupancy of property
10 within the project.” (Nahrstedt v. Lakeside Village Condominium Assn., Inc. (1994) 8 Cal.4th 361,
11 373.)
12 The City of Santa Rosa Zoning Ordinance recognizes the propriety of more restrictive
13 setback rules set forth in subdivision maps, than those set forth in a zoning ordinance. Title 20,
14 Division 3, Chapter 20-30.110(C)(1)(c), states:
15 ///
16 Infill development within a previously approved project. Where the City has established
specific setback requirements for individual parcels through the approval of a specific plan,
17 subdivision map, or other entitlement, prior to the effective date of this Zoning Code, those
18 setbacks shall apply to the infill development instead of the setbacks required by this Zoning
Code, except where the review authority determines that an original setback that is more
19 restrictive than the current zoning no longer serves the desired neighborhood character.
20
Mr. Romano has argued that the narrow exception of the ordinance applies, and that the City
21
somehow determined that the original setbacks no longer serve the desired neighborhood character.
22
Mr. Romano leaps to this conclusion simply because he obtained building permits. In reality, no
23
evidence supports the proposition that the City has “determined that the original setback that is
24
more restrictive than the current zoning no longer serves the desired neighborhood character.”
25
H. Analysis of the New Government Statute Regarding Accessory Dwelling Unit
26
Mr. Romano claims a relatively new California statute, promulgated in January 2020,
27
Government Code section 65852.2 authorizes him to build a structure to within four feet of the
28
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DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 property line.5 This statute would only apply to Romano’s contemplated construction of a new
2 garage and accessory dwelling unit.
3 Sonoma County Ordinance, §26-88-060, is an ordinance which promulgated to address the
4 requirements of the new legislation. The new ordinance states that ADUs “must comply with the
5 setback requirement of the applicable zoning districts and combining districts in which the
6 accessory dweling unit is located.”
7 Regardless the application of the Government Code, Mr. Romano’s proposed garage/ADU
8 has not been approved by the ACC because it fails to meet the standards set forth in the
9 Architectural Review Guidelines.
10 California courts have long noted that “[c]ommon interest developments are best operated
11 by the board of directors, not the courts.” (Watts v. Oak Shores Cemetery Ass’n. (2015) 235
12 Cal.App.4th 466, 472.) Therefore, as the California Supreme Court has observed, “[g]enerally
13 courts will uphold decisions made by the governing board of an owners association so long as they
14 represent good faith efforts to further the purposes of the common interest development, are
15 consistent with the development’s governing documents, and comply with public policy.”
16 (Nahrstedt v. Lakeside Village Condominium Assn., Inc. (1994) 8 Cal.4th 361, 374.) “Indeed,
17 giving deference to use restrictions contained in a condominium project’s originating documents
18 protects the general expectations of condominium owners ‘that restrictions in place at the time they
19 purchase their units will be enforceable.’” (Id. at 377.)
20 I. Romano Claims that Other Homeowners Have Structures Within the
21 Prescribed Setbacks.
22 Mr. Romano has claimed that the Association has allowed other homeowners residents to
23 install fiberglass pools, a deck and landscaping, and thus the board has acted capriciously,
24 arbitrarily and in bad faith.
25
26
27 5
The statute implicates only Mr. Romano’s planned construction of a garage with an upstairs
28 accessory dwelling unit, and not the proposed game room/gymnasium.
16
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 However, the circumstances surrounding other homeowners’ application is not relevant, as
2 each project stands on its own. (Evid. Code, §§210, 350.) The “evidence” submitted by Mr.
3 Romano, is so far limited to GoogleEarth photographs, lacks any foundation. (Evid. Code §§403,
4 702.) Claims based upon the existence of lot lines and the proximity of swimming pools, decks and
5 landscaping to a property’s boundary line require expert opinion testimony. (Evid. Code, 800.)
6 Even testimony from FVEHOA members includes speculation as to property lines and project
7 details, require expert testimony. (Evid. Code, 800.) Simply put, an unauthenticated photograph,
8 some drawings and layperson estimates are inadequate for Mr. Romano to establish this claim.
9 The construction proposed by Mr. Romano dwarfs the minor projects identified by Mr.
10 Romano. Moreover, any failure by ACC to enforce the CC&Rs against other residents does not
11 mean that the Association has waived its right to enforce the CC&Rs against other members,
12 including Romano. The CC&Rs state:
13
14 Failure Not a Waiver. The failure of any Owner, the Board of Directors, the Association or
its officers or agents, to enforce any of the covenants, conditions, restrictions, limitations,
15 reservations, grants of easement, rights, rights-of-way, liens, charges or equitable servitudes
16 contained in this Declaration shall not constitute a waiver of the right to enforce the same
thereafter, no such failure results in or imposes any liability upon the Board, the
17 Association, or any of its officers or agents. (CC&Rs, p. 32.)
18
19 Simply put, allowing other homeowners to break the rules doesn’t mean that the board can
20 allow Mr. Romano to violate the CC&Rs. California case law has also held that a waiver of the
21 right to enforce a covenant may occur only where substantially all of the landowners have
22 acquiesced in a violation so as to indicate an abandonment of the general plan. (Kapner v.
23 Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1189; Alfaro v. Cmty. Hous. Imp. Sys. &
24 Planning Ass'n, Inc. (2009) 171 Cal. App. 4th 1356, 1380.) No such abandonment has occurred
25 here.
26 Additionally, when a homeowner submits a plan for a home improvement, whether it be a
27 construction or landscaping project, the ACC will approve the plan as long as it satisfies the criteria
28 of the CC&Rs and Architectural Review Guidelines. Mr. Romano has personally experienced this
17
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 fact. When he submitted plans in February for his game room/gym and garage/ADU, he also
2 submitted plans for a sunroom atrium. The ACC approved Mr. Romano’s plans for the construction
3 of the sunroom. Why did the ACC approve the atrium project and not the others? Because the
4 sunroom project met the standards set forth in the CC&Rs and Architectural Review Guidelines.
5 Finally, since Mr. Romano’s complaints of other neighbors being allowed to break the rules,
6 the board has reviewed all potential violations. In fact, there have been a couple of occasions where
7 the board has asked for fencing to be replaced in an effort to cure a previously unknown violation.
8 V. CONCLUSION
9 Mr. Romano made the choice to purchase a property within a Common Interest
10 Development with a Home Owner’s Association governed by CC&Rs. FVEHOA wants to ensure
11 harmony in the neighborhood, which includes member compliance with CC&Rs. Mr. Romano
12 needs to comply with the CC&Rs. FVEHOA was hopeful that this matter could be resolved by way
13 of settlement negotiations but that has not been successful. Until Mr. Romano understands that he is
14 required to comply with the CC&Rs, it appears unlikely that any resolution can be obtained.
15 Defendant Fairway View Estates Homeowners’ Association respectfully requests that this Court
16 issue an order bifurcating trial in this case into an initial phase addressing the equitable issues,
17 involving Plaintiff’s equitable causes of actions, and followed by a trial of Plaintiff’s legal claims
18 for nuisance, negligence, and breach of contract.
19 Defendant Fairway View Estates Homeowners’ Association’s position is that Mr. Romano
20 must comply with the CC&Rs and it should be the prevailing party for having to enforce these
21 provisions.
22
23 Dated: June 9, 2023 FREEMAN MATHIS & GARY, LLP
24
25 By:
Craig J. Rolfe
26 Attorneys for Defendants
FAIRWAY VIEW ESTATES
27 HOMEOWNERS’ ASSOCIATION
28
18
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 PROOF OF SERVICE
2 Joseph Romano v. Fairway View Estates Homeowners, et al.
Sonoma Superior Court Case No.: SCV-262714
3
4 I am employed in the County of Placer, State of California. I am over the age of 18 and not
5 a party to the within action. My business address is 1013 Galleria Boulevard, Suite 250, Roseville,
6 California 95678-1363. My electronic service address is: Nicole.stuebing@fmglaw.com.
7
On June 9, 2023, I electronically served the within document(s) described as:
8
9 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL
BRIEF
10
11 on the interested parties in this action addressed as follows:
12 Danie Pavone Glenn M. Smith
ZIMMERMAN PAVONE LLP David Leonard
13 131 A-Stony Circle, Suite 500 Chrissy Lancieri (Paralegal)
14 Santa Rosa, CA 95401 SMITH DOLLAR PC
Phone: (707)578-7555 418 B Street, 4th Floor
15 Facsimile: (707)578-7230 Santa Rosa, CA 95401
Attorneys for Cross Cross-Complainant, Tel: 707-522-1100
16 Fairway View Estates Homeowners Association Attorney for Plaintiff, Joseph Romano
Email:pavone@zp-law.net Email: gsmith@smithdollar.com;
17 dleonard@smithdollar.com;
18 clancieri@smithdollar.com
19
20
21 Todd Angstadt, Esq. Joseph Romano, In Pro Per
Jeanne Lee, Esq. 4723 Muirfield Court
22 PHILLIPS SPALLAS, ANGSTADT Santa rosa, CA 95405
505 Sansome Street, 6th Floor joe@generatorjoe.net
23
San Francisco, CA 94111
24 Email: tangstadt@psalaw.net
jlee@psalaw.net
25 Attorney for Plaintiff/Cross-Defendant Joseph
Romano, individually and as a trustee of The
26 Joseph Romano and Pixie Romano Living Trust
27
28
19
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF
1 Hal Chase, Esq.
STRATMAN & WILLIAMS-ABREGO
2
P.O. Box 258829
3 Oklahoma City, OK 73125-8829
Hal.chase@farmersinsurance.com
4 Lali.ochoa@farmersinurance.com
Attorneys for Defendant Fairway View
5 Homeowners Association
6 in the manner set forth below:
7
8
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
9 documents to be sent from e-mail address nicole.stuebing@fmglaw.com to the
10 persons at the email addresses listed in the Service List.
11
STATE. I declare under penalty of perjury under the laws of the State of
12
California that the above is true and correct.
13
14
Executed on June 9, 2023 at Roseville, California.
15
16
17
Nicole Stuebing
18
19
20
21
22
23
24
25
26
27
28
20
DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BR
Preview
1 Craig J. Rolfe (SBN 256319) FREEMAN MATHIS & GARY, LLP 2 1013 Galleria Boulevard, Suite 250 3 Roseville, California 95678-1363 Telephone: (916) 472-3300 4 craig.rolfe@fmglaw.com 5 HAL CHASE, JR., ESQ. – State Bar No. 95789 STRATMAN & WILLIAMS-ABREGO 6 P.O. Box 258829 7 Oklahoma City, OK 73125-8829 Phone: (510) 457-3440 8 Email: norcal.legal@farmersinsurance.com 9 Attorneys for Defendants FAIRWAY VIEW ESTATES 10 HOMEOWNERS ASSOCIATION 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SONOMA 13 14 JOSEPH ROMANO, individually and as trustee Case No.: SCV-262714 of THE JOSEPH AND PIXIE ROMANO 15 LIVING TRUST, DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS 16 Plaintiffs ASSOCIATION’S TRIAL BRIEF 17 vs. Date: June 16, 2023 18 FAIRWAY VIEW ESTATES HOMEOWNERS Time: 8:30 a.m. ASSOCIATION; and DOES 1-20, inclusive, Dept.: 17 19 Defendants. 20 Complaint Filed: June 29, 2018 Trial Date: June 16, 2023 21 22 23 24 I. INTRODUCTION 25 This litigation involves an owner of a residential property that knowingly agreed to be 26 bound by Fairway View Homeowners Association’s (“Association” or “FVEHOA”) CC&Rs upon 27 purchase of the residential property located at 4723 Muirfield Court in Santa Rosa, California. Mr. 28 Romano has confirmed that upon purchase of this property, he knew that he was purchasing a 1 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 property within a Common Interest Development governed by a homeowner’s association’s 2 CC&Rs. Regardless of this knowledge, Mr. Romano does not believe he is required to comply with 3 FVEHOA’s CC&Rs. 4 This matter involves Mr. Romano’s proposed construction of a game room and a garage 5 with an Accessory Dwelling Unit (“Adu”). Mr. Romano claims to have obtained approval for plans 6 he submitted back in 2013. FVEHOA will establish by way of admissible evidence that Mr. 7 Romano has not received approval of his present plans, nor any plans submitted in 2017 to present. 8 It is FVEHOA’s position based upon admissible evidence and applicable legal authority that 9 it has a right and obligation to enforce its CC&Rs. FVEHOA has responded appropriately to all of 10 Mr. Romano’s submissions to its Architectural Control Committee. FVEHOA has not waived any 11 rights by way of any prior approval of plans in 2013. FVEHOA has made every reasonable effort to 12 resolve this situation but this has proven extremely difficult if not impossible when a member 13 firmly believes that the CC&Rs simply do not apply to his property. 14 FVEHOA respectfully submits this Trial Brief in an effort to educate this Court on the status 15 of this dispute as well as the applicable legal authority to be applied at trial. 16 II. FACTUAL BACKGROUND 17 Fairway View Estates is a community of 118 single family residences. The homes were 18 constructed in the 1980s. In 2010, the Romanos purchased two adjoining lots at 4723 Muirfield in 19 the Fairway View Estates development in Santa Rosa. 20 When someone buys a home within Fairway View Estates, the homeowner necessarily 21 agrees to be bound by the restrictive covenants contained within the CC&Rs of Fairway View 22 Estates. (Alfaro v. Cmty House Imp. Svs. v. Planning Ass’n, Inc. (2009) 171 Cal.App.4th 1356, 23 1373.) (CC&Rs §1.) Thus, each of the owners of Fairway View Estates is a member of the 24 Association. 25 Per the bylaws and statute, the FVEHOA is governed by a seven-member board of directors, 26 the duties and the powers of which are delegated by law and by the Association’s governing 27 documents. (CC&Rs, §2.b, §9.) Per its CC&Rs, FVEHOA’s board of directors is vested with the 28 authority to “perform any and all acts which may be necessary or proper for or incidental to the 2 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 exercise of the express powers of the Association for the peace, health, comfort, safety and/or 2 general welfare of the Owners and their guests.” (CC&Rs §9; Corp. Code §7210.) California courts 3 have long noted that “[c]ommon interest developments are best operated by the board of directors, 4 not the courts.” (Watts v. Oak Shores Cemetery Ass’n. (2015) 235 Cal.App.4th 466, 472.) 5 Mr. Romano has confirmed at deposition that he understood when purchasing the Muirfield 6 property that this property was part of a common interest development, homeowner’s association, 7 with CC&Rs. Mr. Romano is bound by the CC&Rs. 8 III. THE KEY ISSUE: A CONSTRUCTION PROJECT 9 Mr. Romano’s main issue is the Association’s refusal to approve plans for new structures on 10 his property, which include a proposed construction of a game room and a garage, and an 11 Accessory Dwelling Unit, essentially an apartment on the second floor of the proposed garage. On 12 at least four occasions from 2017-early 2020, Mr. Romano has submitted and the Association has 13 not approved plans for Romano’s contemplated construction. 14 The Association’s decision not to approve Romano’s plans is supported by the CC&R’s 15 requirements that must be met before any member can commence a construction project. The 16 Association’s refusal to accede to Mr. Romano’s relentless demands are based upon a reasonable 17 and accurate interpretation of the setback and building envelope rules of FVEHOA’s CC&Rs and 18 Architectural Review Guidelines: structures must be at least 15-feet from a property boundary lines, 19 and each of these proposed structures, especially the game room intrude to within 15-feet of the 20 boundary. Moreover, the Association had sought and received legal advice from their longtime 21 counsel. 22 Romano, however, claims that the setback provisions of the CC&Rs do not apply to his 23 proposed construction, and that Association’s refusal to allow him to build is capricious, arbitrary 24 and in bad faith. He claims that certain local ordinances and recent state statutes govern set back 25 issues. It is FVEHOA’s position that Mr. Romano is incorrect, especially with regard to Santa 26 Rosa’s set back requirements, and particularly as it relates to Mr. Romano’s contemplated 27 construction of a game room and gym. 28 3 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 Mr. Romano claims he sustained damages of $5mil or more because, according to him, the 2 Association had previously approved his construction plans in 2013, and that the Association’s 3 subsequent refusal to allow him to build, has led to delays, and enormous increased construction 4 costs. Mr. Romano’s argument is misleadingly simple: the Association allowed me to build in 2013, 5 why did it refuse to allow me to build in 2017, and in 2018 and in 2020? 6 The answer is also simple: the plans submitted by Romano in 2013 differ from the plans 7 submitted in 2017, 2018 and 2020. Most importantly, the plans submitted in 2013 do not show 8 structures within the 15-foot setback. The plans submitted in 2017, 2018 and 2020 show structures 9 which fall within the 15-foot setback. And the structures depicted in Romano’s post-2013 plans are 10 significantly larger than those in his 2013 plans. 11 1. History of Project Plans Submitted by Romano 12 In the Summer of 2013, Mr. Romano apparently submitted plans to someone named Jim 13 Doyle, who at the time served as a one-man committee, called the Architectural Review Committee 14 (“ACC”). Mr. Romano has plans, which he says were approved by Doyle in August 2013. A seal, a 15 stamp with what seems to be Doyle’s signature, appears on these plans. 16 The Association does not have a copy of the 2013 plans. Mr. Romano had the only original 17 version of the plans purportedly approved by Jim Doyle, who has since passed away. 18 Mr. Romano last submitted plans in February 2020—long after the filing of the lawsuit— 19 which FVEHOA accepted in part, but otherwise rejected, because the plans call for the construction 20 of structures which fall within fifteen feet of the property’s boundary lines, in particularly the game 21 room addition. The FVEHOA also has expressed concerns about the aesthetics of the proposed 22 construction of the garage/ADU—particularly as it relates to its height, apparently 32-feet from 23 ground to rooftop. 24 It has now been discovered through two site inspections that regardless of the plans Mr. 25 Romano is working off of, he is not building according to his own plans. Mr. Stokes, FVEHOA 26 retained construction expert, has identified wall heights and lengths that are much larger than the 27 plan specifications. 28 /// 4 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 Additionally, the second site inspection also revealed issues with Mr. Romano’s proposed 2 new driveway. As the parties were attempting to negotiate settlement, it was learned that the subject 3 plans did not include a rendering of the driveway Mr. Romano planned to install. This new 4 driveway will result in water runoff issues that Mr. Romano has never addressed. 5 Mr. Romano is not building according to plan and his plans are still incomplete. 6 IV. LIABILITY 7 A. FVEHOA has the Right and Obligation to Enforce the CC&Rs 8 Mr. Romano’s case is premised on the notion that a cause of action for breach of fiduciary 9 duty, breach of contract, negligence, nuisance, and declaratory relief can be founded upon an 10 association’s enforcement of specific provisions contained with its Declaration of Covenants, 11 Conditions and Restrictions. Put another way, Mr. Romano claims the Association has breached 12 fiduciary duties owed to him, because it has not allowed him to proceed with a project which 13 undeniably violates the Associations’ CC&Rs, building structures which extend beyond the 14 building envelope restrictions imposed by the CC&Rs. Mr. Romano thus posits that the FVEHOA’s 15 decision to require Mr. Romano to abide by the CC&Rs was unreasonable, arbitrary, capricious, 16 and in bad faith. FVEHOA’s position is that no liability should attach to an association because a 17 board demands that a member abide by the CC&Rs. 18 Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642 is instructive. In Cohen, 19 the plaintiffs, property owners, initiated a lawsuit against Kite Hill Community Association, for its 20 approval of a stone fence in an area which was improper, and violated the association’s CC&Rs. 21 The plaintiffs alleged the association’s architectural committee breached its duty to plaintiffs by 22 approving construction of a stone fence contrary to the building standards contained in a declaration 23 of covenants, conditions and restrictions. (Id. at pp. 645-646.) The trial court sustained the 24 association’s demurrer to the complaint. But the court of appeal reversed, holding that the approval 25 of a fence not in conformity with the CC&Rs, could give rise to an action by individual 26 homeowners affected by the improvement. (Id.at p. 647.) As noted by the Cohen court, the 27 Association has an affirmative duty to enforce the CC&Rs in this respect: 28 5 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 It is a settled rule of law that homeowners’ associations must exercise their authority to approve or disapprove an individual homeowner’s construction or improvement plans in 2 conformity with the declaration of covenants and restrictions, and in good faith. (Id. at p. 3 650) (emphasis added.) 4 The California Supreme Court has observed, “[g]enerally courts will uphold decisions made 5 by the governing board of an owners association so long as they represent good faith efforts to 6 further the purposes of the common interest development, are consistent with the development’s 7 governing documents, and comply with public policy.” (Nahrstedt v. Lakeside Village 8 Condominium Assn., Inc. (1994) 8 Cal.4th 361, 374.) “Indeed, giving deference to use restrictions 9 contained in a condominium project’s originating documents protects the general expectations of 10 condominium owners ‘that restrictions in place at the time they purchase their units will be 11 enforceable.’” (Id. at 377.) 12 Regardless of whether any plans had been approved in 2013, the Association’s board had 13 the right, if not the obligation, to enforce the CC&Rs when Romano submitted his revised, 14 modified plans in 2017 and 2018. To be sure, the CC&Rs give the ACC the express right to 15 withhold approval, even if approval of the plans had been previously provided: 16 17 Waiver: The approval by the Architectural Control Committee of any plans, drawings or specifications for any work done or proposed, or for any other matter requiring the approval 18 of the Architectural Control Committee under these restrictions, shall not be deemed to 19 constitute a waiver of any right to withhold approval of any similar plan, drawing, specification or matter subsequently submitted for approval. (CC&Rs, §17(l).) 20 21 This provision tracks case law, which holds that even when a mistake approving a project is 22 made, an association board is authorized to correct the error to ensure compliance with the CC&Rs. 23 Even more, the evidence will show that Mr. Romano made many assurances of actions he would 24 take to ensure compliance with the CC&Rs in his effort to obtain approval in 2013, but that he 25 never performed. 26 The propriety of correcting a mistake was acknowledged by the court in Woodridge 27 Esconido v. Nielsen (2005) 130 Cal.App.4th 559. In Woodbridge, after receiving approval from the 28 architectural committee, a homeowner built a deck extended into the five-foot-wide side yard 6 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 easement over the adjacent side yard of a neighboring lot. After the deck had been built, the 2 association’s board found that the architectural committee had erroneously approved the 3 construction of the deck, as it violated the association’s restrictive covenants. On summary 4 judgment, Nielsen, the homeowner argued that the association had acted arbitrarily in demanding 5 the removal of the deck. The trial court, however, granted summary judgment in favor of the 6 association, because the homeowner’s deck violated the association’s CC&Rs. (Id. p. 570-574.) The 7 court of appeals affirmed the lower court summary judgment grant, acknowledging that the deck 8 was a violation of the CC&Rs. (Id. at 575.) 9 B. Improvements on a Lot Require Approval by FVEHOA’s ACC 10 The FVEHOA’s CC&Rs, like others throughout the state, constitutes “a general scheme for 11 maintenance, protection and enhancement of value of the Development, one that entrusts to the 12 Association the management, maintenance and preservation of the Development’s common areas 13 and confers on the Board the power and authority to maintain and repair those areas.” (Lamden v. 14 La Jolla Shores Clubdominium Homeowners Association (1999) 21 Cal.4th 249, 268.) An 15 important function of the Association is to preserve the aesthetic quality and property value within 16 the community. To this end, the CC&Rs provide for an Architectural Control Committee, whose 17 duty is “to consider and act upon such proposals or plans submitted to it pursuant to the terms 18 hereof . . . and to carry out all other duties imposed upon it by these Restrictions.” (Ex. 1, CC&Rs, 19 §17.) Review and approval by the ACC is mandatory: 20 21 No Improvement may be undertaken on a Lot without prior approval of the Architectural Control Committee. 22 (CC&Rs, §17(e).) 23 24 Per the CC&Rs, the ACC shall grant the requested approval only if the Owner complies 25 with the application process set forth in the CC&Rs, and only if, “The Architectural Control 26 Committee shall find the plans and specifications conform to these Restrictions, and to the 27 Architectural Control Guidelines in effect at the time such plans were submitted to the Committee.” 28 (CC&Rs, §17(f).) 7 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 Among the restrictions set forth in the CC&RS are those which require compliance with the 2 setback and building envelope dimensions shown on the subdivision map filed with the County of 3 Sonoma. “Building Envelope” is a defined term under the CC&Rs: 4 5 “Building Envelope” shall be considered as building setback lines and shall mean that certain area of a Lot designated on the Map1 in which the construction of 6 improvements is permitted in accordance with the provisions of these Restrictions.” 7 (CC&Rs, §2(d).) 8 9 The CC&Rs mandate: “No such construction shall be accomplished except within the 10 Building Envelope as such are set forth in the Subdivision Map.” (Ex. 1, CC&Rs, §28(t).) The 11 Architectural Review Guidelines also emphasize, “Siting must be within the building envelope.” 12 (ARG, p. 2.) 13 C. Mr. Romano Wants to Build Structures Which Violate the CC&Rs’ Setback 14 Requirements 15 As noted, at the heart of this case is Mr. Romano’s desire to build additional structures on 16 his property, including additional garages, storage areas, a game room and additional 17 improvements. The project requires approval by the FVEHOA Architectural Control Committee 18 (“ACC”). For purposes of this litigation, the focus is on two proposed structures: a gameroom and 19 gym; and, a garage with an upstairs accessory dwelling unit. 20 The construction proposed by Mr. Romano, in particular his proposed game room and gym, 21 violates the set back and building envelope provisions of the CC&Rs. Nevertheless, Romano insists 22 that he be allowed to proceed with the project, even though the construction would violate the 23 CC&Rs. He claims that he should be allowed to proceed with the construction because he 24 previously received approval in 2013 to commence a building project, and because he believes a 25 26 1 Per the CC&Rs, “‘Map’ shall mean the Subdivision Map entitled ‘FAIRWAY VIEW ESTATES 27 CITY OF SANTA ROSA, STATE OF CALIFORNIA’, which Map was filed for the record in the Office of the Recorder of the County of Sonoma, State of California, on December 5, 1980 in Book 28 315 of Maps at Pages 13 through 19, inclusive.” (Ex. 1, CC&Rs, §2(k).) 8 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 local ordinance and a California statute trumps the CC&Rs’ set back requirements. FVEHOA 2 believes Mr. Romano is mistaken. 3 D. The Genesis of the Dispute 4 The Romano story starts in 2010, when the Romanos purchased two adjoining lots at 4723 5 Muirfield in the Fairway View Estates development in Santa Rosa. In 2012, Mr. Romano retained 6 Valeri Reid, an architect/designer, and Kenneth Campbell, a structural engineer, to prepare plans 7 for a game room. He later hired someone named Curt Nichols of Carlile Macy, an architecture and 8 civil engineering firm. At some point, we are not sure of the precise date—Mr. Romano decided to 9 build two additional garages, called the Main Garage and the Garden Garage. Mr. Romano later 10 still hired different architects and engineers. 11 Mr. Romano claims to have had plans drawn and submitted to Mike Doyle the chair of the 12 Architectural Control Committee (“ACC”) for review and approval in late July 2013. Because 13 Mike Doyle died in 2014, and because the record keeping of the ACC and FVEHOA was not 14 particularly good at that time, FVEHOA does not have any records of the precise plans that Mr. 15 Romano submitted in 2013. Mr. Romano claims to have a complete copy of these plans, and the 16 City of Santa Rosa will not release these plans without his consent, so the complete plans have not 17 been produced to FVEHOA. 18 Mr. Romano claims Mr. Doyle’s 2013 approval allows him to proceed with the construction 19 of two structures, a garage/ADU2 and a game room and gym. The garage/ADU extends a short 20 distance into the 15-foot setback. The game room and gym is situated well within 15-feet of the 21 boundary of his property, and thus well within the CC&R’s proscribed 15-foot setback. 22 Mr. Romano has argued that due to this previous approval, he has had an absolute right to 23 proceed with his proposed construction project. FVEHOA’s position based upon a reasonable 24 25 2 The inclusion of an accessory dwelling unit was an addition to Mr. Romano’s plans, designed to 26 address Santa Rosa’s Planning Commissions concerns about the size of the garage. In other words, 27 Romano simply added a ADU in order to fall within the parameters of California’s new statute, 28 which encourages construction of ADUs to address California’s housing shortage. 9 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 interpretation of the applicable CC&Rs as well as applicable legal authority believes Mr. Romano is 2 wrong for several reasons. 3 First, Mr. Romano did not proceed with the work within a one-year deadline set forth in the 4 CC&Rs. Pursuant to the CC&Rs in effect the time: 5 6 (h) Proceeding with Work: Upon receipt of approval from the Architectural Control Committee . . . the Owner shall, as soon as practicable, satisfy all conditions thereof and 7 diligently proceed with the commencement and completion of all construction, 8 reconstruction, refinishing, alterations and excavations pursuant to said approval, said commencement to be, in all cases, within one year from the date of such approval. If the 9 owner shall fail to comply with this paragraph, any approval given pursuant to paragraph 10 (g) above, shall be deemed revoked unless the Architectural Control Committee, upon written request of the Owner made prior to the expiration of the one-year period, extends 11 the time for such commencement. No such extension shall be granted except upon a finding 12 by the Architectural Committee that there has been no change in the circumstances upon which the original approval was granted. (CC&Rs, §17(h).)(emphasis added.)3 13 14 The evidence obtained in this case does not suggest that Mr. Romano took any affirmative 15 steps to proceed with the commencement of the project within one year from the date of approval. 16 17 3 The current CC&Rs—that is, the First Restated CC&Rs incorporate similar language, and 18 specifies that commencement includes the issuance of building permits: 19 20 21 (h) Proceeding with Work: Upon receipt of approval from the Architectural Control Committee . . . the Owner shall, as soon as practicable, satisfy all conditions thereof and diligently 22 proceed with the commencement and construction of all construction, reconstruction, 23 refinishing, alterations and excavations pursuant to said approval, said commencement including the issuance of any required building permits, to be, in all cases, within one year 24 from the date of such approval. If the owner shall fail to comply with this paragraph, any 25 approval given pursuant to paragraph (g) above, shall be deemed revoked unless the Architectural Control Committee, upon written request of the Owner made prior to the 26 expiration of the one-year period, extends the time for such commencement. No such 27 extension shall be granted except upon a finding by the Architectural Committee that there has been no change in the circumstances upon which the original approval was granted. 28 (CC&Rs, §17(h).) 10 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 To date, Mr. Romano has not produced any written evidence—no applications, no correspondence, 2 no emails—showing any attempt to obtain permits from City of Santa Rosa. 3 The few documents produced by Romano hint at when Romano actually commenced the 4 project. First, the permits were not issued until July and December 2017—four years after having 5 Mr. Romano purportedly received approval from the Association. Second, the Permit Number 6 shown on the permits indicate Mr. Romano did not apply for the permits until 2016: B16-3228; 7 B16-3218.4 Moreover, if Mr. Romano needed more time, he was obliged to request the ACC for 8 additional time to start the project. But Romano did not make a written request prior to the 9 expiration of the one-year period to extend the time for such commencement. 10 Mr. Romano failed to start the project within a year, as such any approval given to Mr. 11 Romano in August 2013 is “deemed revoked.” (CC&Rs, §17(h).) And contrary to Mr. Romano’s 12 assertions, the board was not required to warn Mr. Romano of his tardiness. 13 Mr. Romano has attempted to manufacture an impression that the construction project he 14 proposed in 2017 and the project as revised in 2018, and again revised in 2020, were identical to the 15 project accepted by the ACC in August 2013. The evidence paints a different story. 16 On July 18, 2017, Mr. Romano sent an email which referenced plans “approved by the 17 HOA Architectural Committee on 8-13-2013.” Several months later, on December 20, 2017, Mr. 18 Romano submitted an application to the ACC for approval of an “additional game room, main 19 garage, garden garage, general improvement.” 20 Far from acting in bad faith, or capriciously or arbitrarily, the evidence shows that 21 FVEHOA’s ACC scrupulously followed the CC&Rs and the Architectural Control Guidelines in 22 repeatedly asking Mr. Romano to provide the necessary information (e.g., drawings, blueprints, 23 diagrams) for the ACC to make an informed decision. For example, on February 1, 2018, Stan 24 Clark, Chair of the ACC, wrote Mr. Romano, stating, “Unfortunately I think the best way to 25 characterize our review is to say these plans cannot be approved without significant changes.” As 26 27 4 In the designation “B16,” “B” stands for “Building” and “16” stands for 2016, the year in which 28 the application for a building permit was submitted by the owner. 11 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 noted in Clark’s email, Mr. Romano’s plans revealed departures from the building envelope 2 restrictions: 3 Proposed “Game Room” structure is not fully within the building envelope. Please resubmit 4 drawings for a structure that is within the building envelope. Proposed “Garden Garage” 5 structure is not fully within the building envelope. Please resubmit drawings for a structure 6 that is within the building envelope. 7 8 On February 23, 2018, Mr. Romano responded by advising Clark: 9 10 We are in the process of revising the actual location of the structure by surveying and 11 staking out the perimeters . . . Until we work out the details with our engineer we have no 12 further information to provide. The revision of the plans is in progress and we will provide 13 copies when they are completed. We expect the plans to be revised in a few weeks. We 14 provided the information submitted as a courtesy to the HOA. 15 /// 16 Romano’s response also challenged the validity of the CC&Rs restrictions, suggesting: 17 18 Building envelope lines are irrelevant to the process of positioning buildings being added to a lot. 19 20 Building envelops [sic] are established as guides to placing buildings for a subdivision plan, before its [sic] built out and are not restrictions for additions to properties. 21 22 E. Romano’s Plans Substantially Differ from Plans Submitted in 2013 23 On March 29, 2018, Mr. Romano submitted revised plans—which included plans prepared 24 in July 2016 and April 2017—that is, long after the August 2013 approval. And even if these plans 25 were incomplete. In fact, as late as April 17, 2018, Romano had failed to provide complete 26 information, as required by the Architectural Control Guidelines—guidelines which are considered 27 enforceable operating rules under the Davis Stirling Act. (Civ. Code, §4355; Rancho Santa Fe 28 Assn. v. Dolan-King (2004) 115 Cal.App.4th 28.) Mr. Romano’s omissions were glaring, including 12 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 the failure to include seven specific items required by the Guidelines. Critically, as noted by 2 counsel for FVEHOA: 3 Section 5(d) of the Guidelines requires the site plan include all structures in relation to the 4 building envelope. The plans submitted by the Romanos do not show the building envelope 5 lines. 6 In January 2020, Mr. Romano submitted yet another set of plans to the ACC, which differed 7 from the previously submitted sets of plans. But these plans, especially those for the game room, 8 again failed to comply with the CC&R set back requirement. 9 The evidence produced by Mr. Romano shows no fewer than four different sets of plans, 10 generated at four different times by different architects, each depicting different buildings on 11 different locations on his property. The various plans submitted by Mr. Romano were prepared by 12 different engineers and architects, on different dates. Suffice to say, the plans presented to 13 FVEHOA’s ACC in 2017 and 2018 and 2020 differ significantly from the plans Mr. Romano 14 claims to have been approved in August 2013. 15 F. The CC&Rs Do Not Violate the Santa Rosa’s Setback Ordinance. 16 To emphasize, it is undisputed that the construction of the game room and gym proposed by 17 Mr. Romano intrudes within the fifteen-foot set back specified in the Final Map referenced in the 18 CC&Rs. Mr. Romano’s case therefore depends upon an interpretation of law, which suggests that a 19 city zoning ordinance which provides for a five-foot set back, instead of the FVEHOA fifteen-foot 20 set back, trumps the building envelope requirements set forth in the Association’s CC&Rs. It is 21 FVEHOA’s position that Mr. Romano is wrong. 22 The Davis-Sterling Act governs. Civil Code §4765 states: 23 a) This section applies if the governing documents require association approval 24 before a member may make a physical change to the member’s separate interest 25 or to the common area. In reviewing and approving or disapproving a proposed 26 change, the association shall satisfy the following requirements: 27 ... 28 13 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 (3) Notwithstanding a contrary provision of the governing documents, a decision on 2 a proposed change may not violate any governing provision of law, including, but 3 not limited to, the Fair Employment and Housing Act (Part 2.8 (commencing with 4 Section 12900) of Division 3 of Title 2 of the Government Code), or a building code 5 or other applicable law governing land use or public safety. 6 (Civ. Code, §4765(a))(emphasis added.) 7 8 The 15-foot building set back provisions of the CC&Rs do not violate Santa Rosa’s building 9 ordinance. Nor is there any conflict between the governing documents and the law. (Civ. Code 10 §4205(a).) 11 The setback provisions of the CC&Rs are in harmony with the Santa Rosa ordinance, 12 which requires a minimum of five feet. The CC&Rs simply require a deeper setback. Indeed, 13 nothing prevents an association from adopting greater land use restrictions, than would otherwise 14 be afforded to a homeowner not residing in a community development. To be sure, this is one of the 15 benefits and burdens of living in a community development. 16 G. Overview of Law Regarding CC&Rs 17 The FVEHOA’s CC&Rs provides for, among other things, the orderly use and occupancy of 18 the lots and residence buildings constructed and to be constructed in Fairway View Estates and 19 permits the development of a residential scheme. (Ex. 1, CC&Rs, §1.) This means a Fairway View 20 owner must give up a certain degree of freedom of choice which he or she might otherwise enjoy in 21 separate, privately owned property. As noted by the California Supreme Court, “anyone who buys 22 a unit in a common interest development with the knowledge of its owners association’s 23 discretionary power accepts ‘the risk that the power may be used in a way that benefits the 24 commonality but harms the individual.” (Nahrstedt v. Lakeside Village Condominium Assn., Inc. 25 (1994) 8 Cal.4th 361, 374.) 26 We therefore believe the CC&R’s provisions pertaining to the Building Envelope are 27 binding upon Mr. Romano, notwithstanding any ordinances related to setbacks promulgated or later 28 promulgated by the City of Santa Rosa. As noted by one reviewing court: 14 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 In an unbroken line of cases, California courts have held that a change in the zoning 2 restrictions in an area does not impair the enforceability of existing deed restrictions. 3 (Seaton v. Clifford (1972) 24 Cal.App.3d 46, 52.) 4 5 As a consequence, “[u]se restrictions in CC&R’s ‘should be enforced unless they are wholly 6 arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that 7 far outweighs any benefit.’” (Sui v. Price (2011) 196 Cal.App.4th 933, 940.) Thus, as a matter of 8 law, FVEHOA’s board “is empowered to enforce use restrictions contained in the project’s 9 declaration or master deed and to enact new rules governing the use and occupancy of property 10 within the project.” (Nahrstedt v. Lakeside Village Condominium Assn., Inc. (1994) 8 Cal.4th 361, 11 373.) 12 The City of Santa Rosa Zoning Ordinance recognizes the propriety of more restrictive 13 setback rules set forth in subdivision maps, than those set forth in a zoning ordinance. Title 20, 14 Division 3, Chapter 20-30.110(C)(1)(c), states: 15 /// 16 Infill development within a previously approved project. Where the City has established specific setback requirements for individual parcels through the approval of a specific plan, 17 subdivision map, or other entitlement, prior to the effective date of this Zoning Code, those 18 setbacks shall apply to the infill development instead of the setbacks required by this Zoning Code, except where the review authority determines that an original setback that is more 19 restrictive than the current zoning no longer serves the desired neighborhood character. 20 Mr. Romano has argued that the narrow exception of the ordinance applies, and that the City 21 somehow determined that the original setbacks no longer serve the desired neighborhood character. 22 Mr. Romano leaps to this conclusion simply because he obtained building permits. In reality, no 23 evidence supports the proposition that the City has “determined that the original setback that is 24 more restrictive than the current zoning no longer serves the desired neighborhood character.” 25 H. Analysis of the New Government Statute Regarding Accessory Dwelling Unit 26 Mr. Romano claims a relatively new California statute, promulgated in January 2020, 27 Government Code section 65852.2 authorizes him to build a structure to within four feet of the 28 15 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 property line.5 This statute would only apply to Romano’s contemplated construction of a new 2 garage and accessory dwelling unit. 3 Sonoma County Ordinance, §26-88-060, is an ordinance which promulgated to address the 4 requirements of the new legislation. The new ordinance states that ADUs “must comply with the 5 setback requirement of the applicable zoning districts and combining districts in which the 6 accessory dweling unit is located.” 7 Regardless the application of the Government Code, Mr. Romano’s proposed garage/ADU 8 has not been approved by the ACC because it fails to meet the standards set forth in the 9 Architectural Review Guidelines. 10 California courts have long noted that “[c]ommon interest developments are best operated 11 by the board of directors, not the courts.” (Watts v. Oak Shores Cemetery Ass’n. (2015) 235 12 Cal.App.4th 466, 472.) Therefore, as the California Supreme Court has observed, “[g]enerally 13 courts will uphold decisions made by the governing board of an owners association so long as they 14 represent good faith efforts to further the purposes of the common interest development, are 15 consistent with the development’s governing documents, and comply with public policy.” 16 (Nahrstedt v. Lakeside Village Condominium Assn., Inc. (1994) 8 Cal.4th 361, 374.) “Indeed, 17 giving deference to use restrictions contained in a condominium project’s originating documents 18 protects the general expectations of condominium owners ‘that restrictions in place at the time they 19 purchase their units will be enforceable.’” (Id. at 377.) 20 I. Romano Claims that Other Homeowners Have Structures Within the 21 Prescribed Setbacks. 22 Mr. Romano has claimed that the Association has allowed other homeowners residents to 23 install fiberglass pools, a deck and landscaping, and thus the board has acted capriciously, 24 arbitrarily and in bad faith. 25 26 27 5 The statute implicates only Mr. Romano’s planned construction of a garage with an upstairs 28 accessory dwelling unit, and not the proposed game room/gymnasium. 16 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 However, the circumstances surrounding other homeowners’ application is not relevant, as 2 each project stands on its own. (Evid. Code, §§210, 350.) The “evidence” submitted by Mr. 3 Romano, is so far limited to GoogleEarth photographs, lacks any foundation. (Evid. Code §§403, 4 702.) Claims based upon the existence of lot lines and the proximity of swimming pools, decks and 5 landscaping to a property’s boundary line require expert opinion testimony. (Evid. Code, 800.) 6 Even testimony from FVEHOA members includes speculation as to property lines and project 7 details, require expert testimony. (Evid. Code, 800.) Simply put, an unauthenticated photograph, 8 some drawings and layperson estimates are inadequate for Mr. Romano to establish this claim. 9 The construction proposed by Mr. Romano dwarfs the minor projects identified by Mr. 10 Romano. Moreover, any failure by ACC to enforce the CC&Rs against other residents does not 11 mean that the Association has waived its right to enforce the CC&Rs against other members, 12 including Romano. The CC&Rs state: 13 14 Failure Not a Waiver. The failure of any Owner, the Board of Directors, the Association or its officers or agents, to enforce any of the covenants, conditions, restrictions, limitations, 15 reservations, grants of easement, rights, rights-of-way, liens, charges or equitable servitudes 16 contained in this Declaration shall not constitute a waiver of the right to enforce the same thereafter, no such failure results in or imposes any liability upon the Board, the 17 Association, or any of its officers or agents. (CC&Rs, p. 32.) 18 19 Simply put, allowing other homeowners to break the rules doesn’t mean that the board can 20 allow Mr. Romano to violate the CC&Rs. California case law has also held that a waiver of the 21 right to enforce a covenant may occur only where substantially all of the landowners have 22 acquiesced in a violation so as to indicate an abandonment of the general plan. (Kapner v. 23 Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1189; Alfaro v. Cmty. Hous. Imp. Sys. & 24 Planning Ass'n, Inc. (2009) 171 Cal. App. 4th 1356, 1380.) No such abandonment has occurred 25 here. 26 Additionally, when a homeowner submits a plan for a home improvement, whether it be a 27 construction or landscaping project, the ACC will approve the plan as long as it satisfies the criteria 28 of the CC&Rs and Architectural Review Guidelines. Mr. Romano has personally experienced this 17 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 fact. When he submitted plans in February for his game room/gym and garage/ADU, he also 2 submitted plans for a sunroom atrium. The ACC approved Mr. Romano’s plans for the construction 3 of the sunroom. Why did the ACC approve the atrium project and not the others? Because the 4 sunroom project met the standards set forth in the CC&Rs and Architectural Review Guidelines. 5 Finally, since Mr. Romano’s complaints of other neighbors being allowed to break the rules, 6 the board has reviewed all potential violations. In fact, there have been a couple of occasions where 7 the board has asked for fencing to be replaced in an effort to cure a previously unknown violation. 8 V. CONCLUSION 9 Mr. Romano made the choice to purchase a property within a Common Interest 10 Development with a Home Owner’s Association governed by CC&Rs. FVEHOA wants to ensure 11 harmony in the neighborhood, which includes member compliance with CC&Rs. Mr. Romano 12 needs to comply with the CC&Rs. FVEHOA was hopeful that this matter could be resolved by way 13 of settlement negotiations but that has not been successful. Until Mr. Romano understands that he is 14 required to comply with the CC&Rs, it appears unlikely that any resolution can be obtained. 15 Defendant Fairway View Estates Homeowners’ Association respectfully requests that this Court 16 issue an order bifurcating trial in this case into an initial phase addressing the equitable issues, 17 involving Plaintiff’s equitable causes of actions, and followed by a trial of Plaintiff’s legal claims 18 for nuisance, negligence, and breach of contract. 19 Defendant Fairway View Estates Homeowners’ Association’s position is that Mr. Romano 20 must comply with the CC&Rs and it should be the prevailing party for having to enforce these 21 provisions. 22 23 Dated: June 9, 2023 FREEMAN MATHIS & GARY, LLP 24 25 By: Craig J. Rolfe 26 Attorneys for Defendants FAIRWAY VIEW ESTATES 27 HOMEOWNERS’ ASSOCIATION 28 18 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 PROOF OF SERVICE 2 Joseph Romano v. Fairway View Estates Homeowners, et al. Sonoma Superior Court Case No.: SCV-262714 3 4 I am employed in the County of Placer, State of California. I am over the age of 18 and not 5 a party to the within action. My business address is 1013 Galleria Boulevard, Suite 250, Roseville, 6 California 95678-1363. My electronic service address is: Nicole.stuebing@fmglaw.com. 7 On June 9, 2023, I electronically served the within document(s) described as: 8 9 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 10 11 on the interested parties in this action addressed as follows: 12 Danie Pavone Glenn M. Smith ZIMMERMAN PAVONE LLP David Leonard 13 131 A-Stony Circle, Suite 500 Chrissy Lancieri (Paralegal) 14 Santa Rosa, CA 95401 SMITH DOLLAR PC Phone: (707)578-7555 418 B Street, 4th Floor 15 Facsimile: (707)578-7230 Santa Rosa, CA 95401 Attorneys for Cross Cross-Complainant, Tel: 707-522-1100 16 Fairway View Estates Homeowners Association Attorney for Plaintiff, Joseph Romano Email:pavone@zp-law.net Email: gsmith@smithdollar.com; 17 dleonard@smithdollar.com; 18 clancieri@smithdollar.com 19 20 21 Todd Angstadt, Esq. Joseph Romano, In Pro Per Jeanne Lee, Esq. 4723 Muirfield Court 22 PHILLIPS SPALLAS, ANGSTADT Santa rosa, CA 95405 505 Sansome Street, 6th Floor joe@generatorjoe.net 23 San Francisco, CA 94111 24 Email: tangstadt@psalaw.net jlee@psalaw.net 25 Attorney for Plaintiff/Cross-Defendant Joseph Romano, individually and as a trustee of The 26 Joseph Romano and Pixie Romano Living Trust 27 28 19 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BRIEF 1 Hal Chase, Esq. STRATMAN & WILLIAMS-ABREGO 2 P.O. Box 258829 3 Oklahoma City, OK 73125-8829 Hal.chase@farmersinsurance.com 4 Lali.ochoa@farmersinurance.com Attorneys for Defendant Fairway View 5 Homeowners Association 6 in the manner set forth below: 7 8 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the 9 documents to be sent from e-mail address nicole.stuebing@fmglaw.com to the 10 persons at the email addresses listed in the Service List. 11 STATE. I declare under penalty of perjury under the laws of the State of 12 California that the above is true and correct. 13 14 Executed on June 9, 2023 at Roseville, California. 15 16 17 Nicole Stuebing 18 19 20 21 22 23 24 25 26 27 28 20 DEFENDANT FAIRWAY VIEW ESTATES HOMEOWNERS ASSOCIATION’S TRIAL BR