Filed 6/26/13 Rancho Heights Road Maintenance Committee v. Taufer CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

RANCHO HEIGHTS ROAD MAINTENANCE COMMITTEE, Plaintiff and Respondent,

v. THOMAS J. TAUFER, Defendant and Appellant. D059656

(Super. Ct. No. 37-2008-00057101- CU-BC-NC)

APPEAL from a judgment and an orde r of the Superior Court of San Diego County, Thomas P. Nuge nt, Judge. Affirmed.

Thomas J. Taufer, in pro. per., for Defendant and Appellant. Walters & Caietti, Robert M. Caie tti, for Plaintiff and Respondent.

The issues in defendant's appeal are whether the trial court erred by entering a judgment that (1) his properties are subject to road maintenance assessments under an agreement entered into by property owners in an outlying area; (2) an election held on an2 increase in the amount of assessments was va lid, and (3) there was no prevailing party for purposes of contractual attorney fees. De fendant represents hi mself on appeal, and because his briefing violates ba sic appellate principles, we de em his contentions waived. Further, even without waiver we find no error. We affirm the judgment and the order.
FACTUAL AND PROCEDUR AL BACKGROUND This action pertains to a document recorded in Janua ry 1973, entitled "Declaration of Restrictions and Road Maintenance Agre ement" (the Agreemen t). The Agreement was signed by the owners of properties in th e Pala area of San Diego County, who use private roads to access Pala-Temecula Road, a pu blic thoroughfare. Properties subject to the Agreement are referred to by section numbers, including Section 3. Further, the roads covered by the Agreement incl ude roads in Section 3, such as Rancho Heights Road. 1 Under the Agreement, a "Road and Ma nagement Committee" (the Committee) was formed, which is composed of five owne rs of property subject to the Agreement. 2 The Agreement required each owner to pay an annual fee of $0.50 per acre for the

1 The Agreement provides: "The lands subj ect to this agreement are Sections 2, 3, 11, 12 and 13 and those portions of Sections 10 and 15 lyi ng Easterly of Pala-Temecula Road EXCEPTING those portions of Sections 3, 10 and 15 which have direct access to Pala-Temecula Road by driveway or privat e road and which do not have any road connections to roads w ithin lands subject hereto, all in Township 9 South, Range 2 West, San Bernardino Base and Meridian, in the Co unty of San Diego, St ate of California." The evidence indicates the Ag reement covered approximately eight miles of roads, including Rancho Heights Road.
2 Despite the Agreement's designati on of the Committee as the road and management committee, in this litigation plaintiff refers to itself as the "Rancho Heights Road Maintenance Committee."3 "primary purpose of . . . repair[ing] and main tain[ing] . . . roadways within the subject lands," and the Committee had the discretion to assess each owner an additional $0.50 per acre. The Agreement provides, "[n]o fu rther assessments shall be levied for any purpose without the prior approval of member ship exercising 65 [percent] of the voting power as herein set forth." In 1992, Thomas Taufer and Lyse McGo nigle, as tenants in common, purchased roughly 20 acres of property subject to the Agreement. 3 After a subdivision in the early 2000's, Taufer owns four properties, three of which are located entir ely within Section 3, and one of which is partially located in Section 3. The pr operties are improved with two residences, including one that is si tuated entirely in Section 3. In the late 1990's the Co mmittee realized that increa sed maintenance assessments were needed. At a property owners meeti ng in October 1998, the Committee discussed the proposal and it "was passed by acclaim." To obtain a vote, the Committee sent property owners ballots by mail and held th e election open until sufficient ballots were returned to either accept or reject the proposal. Under the Agreement, an owner was entitled to one vote for each parcel owned, plus one vote for each 10 acres owned. In October 2000 the Co mmittee announced it had received yes votes representing 65 percent or more of the vot ing power. In May 2001 an amendment to the Agreement (the Amendment) was recorded. The Amendment provides, "[i]t is agreed that all owners of lands subject hereto shall pay to the Co mmittee an annual assessment of a minimum

3 McGonigle is not involved in this appeal.4 $100 to a maximum of $200 per Benefit Unit." Benefit units are based on the amount of a property's acreage and whether it is improved or unimproved. In a November 2001 letter, the Committee notified property owners that increased assessments under the Amendment were due an nually on January 1, and they would be deemed late on February 1. The letter also stated, "[t]here will be a late fee of $10.00 imposed after February 1, . . . and inte rest charged at 6 [percent] annually." In 1998 Taufer had begu n objecting to assessments on the ground his properties were excepted from the Agreement. The Commi ttee sued Taufer in small claims court twice for unpaid assessments, and it prevailed at trial and in appeal s. In 2000 and 2004, judgments were entered against him for $3, 600 and $940, respectively. In 2005 the Committee sued Taufer and McGonigle for $3, 020 in unpaid assessments. The suit was dismissed in May 2006 after th ey agreed to pay $4,311 in assessments and attorney fees. In August 2008 th e Committee commenced the inst ant action against Taufer for $120 in late fees. 4 Under protest, he had paid the $1, 200 in 2008 assessments for his four properties, but the payment was late. The claimed $120 included three months' of late fees at $10 per property. Taufer filed an answer, in propria persona , but he later retained an attorney. He argued his properties are excepted from assess ments under the Agreement, and thus he cannot be liable for late fees. As in th e earlier cases, he relied on the Agreement's

4 The complaint named several other defenda nts, but by the time of trial Taufer was the only remaining defendant.5 exclusion of properties in Section 3 " 'which have direct access to Pala-Temecula Road by driveway or private road and which do not have any road connections to roads within lands subject hereto.' " He argued that "wh ile his properties are connected to the subject road [Rancho Heights Road], the roadway travels over proper ty owned by him in fee and therefore his use is not pursuant to the ease ment created by the . . . Agreement." His argument was "premised upon the concept that a landowner cannot grant himself an easement over his own property." Taufer also challenged the electi on on the Amendment, claiming "the vote . . . should have been taken at an annual meeting or at the very least had a finite time period in which the votes could be cast a nd that safeguards would exist to ensure the identification of the voting pa rty." Further, he argued the Committee was not empowered to impose late fees, and alternatively, any late fees must be assessed on an annual rather than monthly basis. A bench trial was held over several days in late September and early October 2010. On October 12, 2010, the court file d a proposed statement of decision. It characterizes Taufer's theory on assessments as "convolut ed," and explains "[t]he evidence is clear that the Taufer property do es indeed have road connections to roads within lands subject to the provisions of [t he Agreement]." The court determined the matter had been litigated and resolved agains t Taufer in the prev ious small claims actions, but "[s]uch a finding is not necessary . . . as it is this court's decision that [Taufer's] contention fails on the merits."6 The court found the Committe e's election proced ure was acceptable, explaining: "The Committee followed its traditional practic e of soliciting the votes by mail, accepting the ballots without question and leaving it open until enough votes were received to either pass or defeat the proposition. While perhap s not ideal it is not prohibited." The court rejected Taufer's argument the Amendment did not conform to the ballot because "the formula now being applied to determine the amount of a landowner's assessment was not spelled out." The court determined that a letter from the Committee to Taufer and other landowners defeated the argument, and, an earlier "small claims judgment necessarily encompassed the formula utiliz ed by the Committee in determining the amount owed, which was a subject of the ballot in ques tion and which was neces sarily adjudicated against the defendant." The court did agre e with Taufer that the Committee lacked authority to assess late fees, as there was no such authority in th e controlling documents. On February 24, 2011, the court entered judgment in accordan ce with its statement of decision. The same day judgment was ente red, the parties appeared on an ex parte matter, and Taufer submitted a written disagreem ent with the statement of decision. He acknowledged the judgment was consiste nt with the statement of decision. Both parties moved for designation as the prevailing party for purposes of attorney fees. In April 2011 the court entered an order finding there was no prevailing party.7 DISCUSSION
I Taufer's Appellate Briefing: Waiver Taufer represents himself on appeal, a nd unfortunately, his briefing does not comply with basic principles of appellate pr actice. In many instan ces the briefing lacks supporting citations to the reco rd. "[T]he failure to provide citation to the record is a violation of California Rules of Court. . . . A violation of the rules of court may result in the striking of the offending document, the wa iver of the arguments made therein, the imposition of fines and/or the dismissal of the appeal. [Citations.] . . . The appellate court is not required to search the re cord on its own seeking error." ( Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Further, the briefing lacks cogent argumen ts and the citation of supporting legal authorities. " '[P]arties are re quired to include argum ent and citation to authority in their briefs, and the absence of these necessary elemen ts allows this court to treat appellant[s'] [contentions] as waived.' " ( Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) Additionally, Taufer's briefi ng is largely devoted to issues not before the trial court. For instance, for the first time on appe al he attempts to ch allenge the validity of the Agreement. The briefing also discu sses summary judgment, discovery, and the statute of limitations, which were not at issue at trial. " 'It has long been the general rule and understanding that "a n appeal reviews the correctness of a judgment as of the time of8 its rendition, upon a record of matters wh ich were before the trial court for its consideration." ' " ( In re B.D. (2008) 159 Cal.Ap p.4th 1218, 1239.) Taufer "is not exempt from the foregoing rules because he is representing himself on appeal in propria persona. Under the law, a party may choose to act as his or her own attorney. [Citations.] '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]' [Citation.] Thus, as is the case with attorneys, pro. per. litig ants must follow correct rules of procedure." ( Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Accordingly, we deem Taufer's c ontentions waived. We nonetheless independently review the record and briefl y address the merits of the trial court's rulings. 5
II
Assessments The usual rules of contract interpretation apply to the court's interpretation of the Agreement. " 'The fundamental rule is that interpretation of . . . any contract . . . is governed by the mutual intent of the parties at the time th ey form the contract. [Citation.] The parties' intent is found, if possible, so lely in the contract's written provisions.' " ( Nelson v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4t h 1115, 1129.)

5 The Committee does not contend Taufer la cks standing to prosecute this appeal since he prevailed on the Co mmittee's late fee claim.9 " '[T]he whole of a contract is to be taken toge ther, so as to give effe ct to every part.' " ( Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 799.) "The interpretation of a contract is a judicial function." ( Nesson v. Northern Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65, 87.) The Agreement states that properties in Section 3 are subject to the Agreement, and the roads maintained u nder the Agreement include th e roads in Section 3, as delineated on an attached parcel map. It is undisputed that three of Taufer's properties are exclusively in Section 3 and the fourth one is pa rtially in Section 3. It is also undisputed that Rancho Heights Road is in Section 3, running easterly from Pala-Temecula Road, Taufer's properties are directly connected to Rancho Heights Road, and Rancho Heights Road provides the only egress a nd ingress to the properties. Taufer asserts his properties are within the Agreement's exception for "portions of Sections 3, 10 and 15 which have direct access to Pala-Temecula Ro ad by driveway or private road and which do not have any road connections to roads within lands subject hereto ." (Italics added.) His theory is that since the Rancho Heights Road easement travels over properties he owns in fee, his pr operties have direct access to Pala-Temecula Road. He asserts, "The Taufer property is not connected to Ra ncho Heights Road, the road is on the Taufer property." Nothing in the Agreement, however, supp orts Taufer's interpretation. To the contrary, as to excepted properties, the Ag reement provides: "Non-assessable lands: [¶] "It is recognized that certain of the lands subject to this [A]greement front on [PalaTemecula Road], a public highway, and will under normal conditions make no use of10 roads within subject lands . The assessments provided fo r herein shall not be levied against lands which have direct access by driv eway or private road to [Pala-Temecula Road], and which do not have any road connections to roads within lands subject hereto ." (Italics added.) Taufer's properties do not front Pala-Tem ecula Highway, and thus they do not come within this exception. Taufer's properties make use of Rancho Heights Road, a road within the subject lands. The Agre ement does not suggest that properties over which road easements run are excepted from assessments. Accordingly, we agree with the court's determination that Taufer's pr operties are subject to assessments under the Agreement. 6
III Amendment Taufer contends "[l]egal precedent and case law requi res 100 [percent] approval by members to amend an agreement related to assessments," and thus the Amendment "is considered null and void and not enforceable." Taufer cites Hogan v. Pacific Endowment League (1893) 99 Cal. 248, which explained that a homeowner's association "is . . . the creature of contract, and must be governed by the law of contract," and unless the governing documents specify otherwise, an amendment that "would impair the obligation

6 The election for the increase in assessme nts also asked propert y owners to decide whether to install an electr onic security gate on Rancho He ights Road at a cost of $10,000. The evidence showed that Tauf er's co-owner, McGonigle, voted yes on the security gate, thus tacitly acknowledging th e properties are subject to assessments.11 of the original contract . . . could have been made only by consent of all members to be affected thereby." ( Id. at pp. 256-257.) Here, however, the Agreement provides, "[n]o further assessments shall be levied for any purpose with out the prior approval of membership exercising 65 [p ercent] of the voting power." Additionally, Taufer asserts the Committe e "by its own admission never received 65 [percent] of the voting powe r." (Boldface type omitted.) Rancho Heights, however, submitted evidence that 178 or 179 "yes" vote s were required to satisfy the 65 percent requirement and the Committee received 181 "yes " votes. Accordingly, his challenge to the sufficiency of th e evidence to support the court' s ruling lacks merit. "Where appellants challenge the sufficiency of the ev idence we defer to the trial court. Our review is limited to whether there is a ny substantial evidence contradicted or uncontradicted that will support th e challenged fact ual finding." ( City of Santa Maria v. Adam (2012) 211 Cal.Ap p.4th 266, 286.) Taufer also asserts that voting on the Am endment was required to be held at an annual meeting. The Agreement, however, do es not specify an election procedure. The Agreement requires an annual property owner meeting, which owners may attend in person or by proxy. The only election specif ied to occur at the annual meeting is the election of committee members, if applicable. The issue of proposed assessments, if any, is listed in the order of business, but there is no requirement that an election be held at the meeting. At an annual meeting in 1998, the Committee proposed raising assessments, and believing it had owner support, it arrange d for a mail ballot election, a procedure it had undertaken previously.12 The Committee chairman at the relevant time, Stephen Bochinski, testified that "some of the property owners lived out of st ate or out of the country," and the Committee "felt that it was best to get everybody to vo te." Bochinski added that balloting was done by mail because "an absentee owner might have moved, and so it was hard to track down where the property owner was. We had to go to the county records, and even those weren't updated at times. So it was a process of getting them out to the right people. And then they would come back when they came back, and it so metimes took a couple of years." The Committee's proce dure endeavored to include as many property owners as possible, a laudable purpose. We c onclude the court's ruling was proper. 7
IV Prevailing Party Determination The Agreement includes an a ttorney fees clause. Civil Code section 1717 (section 1717), subdivision (a), provides fo r an award of attorney fees to "the party prevailing on the contract." Under section 1717, subdivisi on (b)(1), the prevailing party is the party "who recovered a greater relief in the action on the contract." Section 1717 allows "those parties whose litigation success is not fairly disputable to clai m attorney fees as a matter of right." ( Hsu v. Abbara (1995) 9 Cal.4t h 863, 876.)

7 Taufer's assertions that the trial court i ssued its statement of decision before trial, and deprived him of an opport unity to object to the statement's language, are erroneous. The statement was filed on October 12, 2010, well after trial ended, and it notified the parties, "[t]his Proposed Statement [of] De cision shall become the decision of the court unless either party files objections thereto pu rsuant to California Rules of Court, Rule 3.1590(g)."13 "If neither party achieves a complete victor y on all the contract claims, it is within the discretion of the trial court to determin e which party prevailed on the contract or whether, on balance, neither party prevailed su fficiently to justify an award of attorney fees." ( Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109.) "[I]n deciding whether there is a 'party prevailing on the contract,' th e trial court is to compare the relief awarded on the contract claim or claims with the par ties' demands on those same claims and their litigation objectives as disclosed by the plea dings, trial briefs, ope ning statements, and similar sources." ( Hsu v. Abbara , supra , 9 Cal.4th at p. 876.) We will not disturb a court's determina tion of no prevailing pa rty absent a clear abuse of discretion. ( Ajaxo Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 58.) " ' "Discretion is abused wh en a court exceeds the bounds of reason or contravenes uncontradicted evidence." ' " ( Take Me Home Rescue v. Luri (2012) 208 Cal.App.4th 1342, 1351.) Taufer develops no particular argument showing the court abused its discretion by finding no party prevailed for pu rposes of section 1717. We conclude the court's ruling was within its discretion. Taufer won on the late fees issue, but for purposes of future assessments, the litigation established his prop erties are subject to assessments under the Agreement and validly adopted Amendment. 8

8 " '[T]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litiga tion involving the same cont roversy.' [Citation.] The doctrine 'has a double aspect.' [Citation.] 'In its primary aspect ,' commonly known as claim preclusion, it 'operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]' [Citation.] 'In its secondary14 DISPOSITION The judgment and order are affirmed . Rancho Heights Road Maintenance Committee is entitled to costs on appeal.

M C CONNELL, P. J. WE CONCUR:

M C DONALD, J.

IRION, J.

aspect,' commonly known as collateral estoppel, '[t]he prior judgment . . . "operates" ' in 'a second suit . . . based on a different cause of action . . . "as an estoppel or conclusive adjudication as to such issues in the s econd action as were actually litigated and determined in the first action." ' " ( Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 769-770.)