Filed 6/21/16

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PALM SPRINGS VILLAS II 

HOMEOWNERS ASSOCIATION, INC.,

Cross-complainant and Appellant,

v.

ERNA PARTH,

Cross-defendant and Respondent.

 D068731

 (Super. Ct. No. INC1202588)

APPEAL from a judgment of the Superior Court of Riverside County, John G. 

Evans, Judge. Reversed in part, affirmed in part. 

Epsten Grinnell & Howell, Anne L. Rauch and Joyce J. Kapsal for 

Cross-complainant and Appellant.

Kulik Gottesman & Siegel, Leonard Siegel, Thomas M. Ware II and Francesca N. 

Dioguardi for Cross-defendant and Respondent.
2

I

INTRODUCTION

The Palm Springs Villas II Homeowners Association, Inc. (Association)

appeals from a judgment entered in favor of Erna Parth, in connection with actions she 

took while simultaneously serving as president of the Association and on its Board of 

Directors (Board). The court granted Parth's motion for summary judgment as to the 

Association's claim for breach of fiduciary duty on the basis of the business judgment 

rule and an exculpatory provision contained in the Association's Declaration of 

Covenants, Conditions, and Restrictions (CC&Rs). The court had previously sustained 

Parth's demurrer to the Association's claim for breach of governing documents without 

leave to amend, finding that the Association failed to allege a cognizable breach. 

On appeal, the Association argues that the trial court erred in its application of the 

business judgment rule and that there remain material issues of fact in dispute regarding 

whether Parth exercised reasonable diligence. We agree that the record discloses triable

issues of fact that should not have been resolved on summary judgment. We therefore

reverse the judgment in favor of Parth. The Association also contends that it stated a 

claim for breach of the governing documents and that the court erred in sustaining Parth's 

demurrer. We conclude that the document cause of action is, at best, duplicative of the 

fiduciary breach cause and affirm the ruling sustaining the demurrer as to that cause of 

action without leave to amend. 
3

II

FACTUAL AND PROCEDURAL BACKGROUND1

A. Background on Palm Springs Villas II and its governance

The Association is the governing body for Palm Springs Villas II, a condominium 

development, and is organized as a nonprofit corporation under California law. The 

Board, comprised of five homeowners or their agents, governs the Association. The 

Association's governing documents include the CC&Rs and its Bylaws. Each 

homeowner is an Association member and is required to comply with the terms set forth 

in these documents. 

Certain provisions reserve to the Board the authority to take particular actions. 

Article VI, Section 3, of the CC&Rs provides that the Board "shall have authority to 

conduct all business affairs of common interest to all Owners." Article VI, Section 1, of 

the Bylaws describes the Board's powers, including to "contract . . . for 

maintenance, . . . and services" and to "borrow money and incur 

indebtedness . . . provided, however, that no property of the association shall be 

encumbered as security for any such debt except under the vote of the majority of the 

members entitled to vote. . . ."

Other provisions limit the Board's power and retain authority for the members. 

 

1 We rely on the facts that the parties set forth in their separate statements in the trial 

court and the evidence cited therein, as well as other evidence submitted with the parties'

papers below. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 303, fn. 1.) 

However, we do not rely on evidence to which objections were sustained. (Wall Street 

Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176.) 
4

Article VI, Section 1, of the Bylaws explains that "[n]otwithstanding the foregoing, the 

Board shall not, except with the vote or written assent of a majority of the unit 

owners . . . [e]nter into a contract with a third person wherein the third person will furnish 

goods or services for the common area or the association for a term longer than one 

year . . . ." Article XVI, Section 2, of the CC&Rs, provides that "[n]otwithstanding any 

other provisions of this Declaration or the Bylaws, the prior written approval of at least 

two-thirds (2/3) of the . . . Owners . . . shall be required" for actions including 

"the . . . encumbrance, . . . whether by act or omission, of the Common Area . . . ."

The CC&Rs also contain an exculpatory provision. Article VI, Section 16,

provides: "No member of the Board . . . shall be personally liable to any Owner, or to 

any other party, including the Association, for any damage, loss or prejudice of the 

Association, the Board, the Manager or any other representative or employee of the 

Association, or any committee, or any officer of the Association, provided that such 

person has, upon the basis of such information as may be possessed by him, acted in good 

faith, and without willful or intentional misconduct."

During the relevant time, Parth was president of the Association, as well as a 

Board member. 

B. Events leading to breach allegations

1. Roofing repairs

In 2006, the Board hired AWS Roofing and Waterproofing Consultants (AWS) in 

connection with roofing repairs, with the intention that AWS would vet the companies 

submitting bids and perform other tasks related to the repairs. According to Parth, AWS 
5

prepared a budget estimate for the repairs, the Board submitted a request to the members 

for a special assessment to offset these costs, and the members voted against the request. 

Parth then found and retained a roofing company on her own, without consulting either 

the Board or AWS.

Parth indicated that she tried to contact the roofing company that had previously 

worked on the roofs, but it was no longer in business, and that she could not find another 

roofer due to the Association's financial condition. She obtained the telephone number 

for a company called Warren Roofing from a contractor that was working on a unit. The 

record reflects that the person Parth contacted was Gene Layton. At his deposition, 

Layton stated that he held a contractor's license for a company called Bonded Roofing 

and that he had a relationship with Warren Roofing, which held a roofing license. When 

asked about that relationship, Layton explained that on a large project, he would be the 

project manager. 

At Parth's deposition, Association counsel asked Parth if she had investigated 

whether Warren Roofing had a valid license. She replied, "[h]e does and did and bonded

and insured." Counsel clarified "[t]here's a Bonded Roofing and Warren Roofing. Who 

did you hire?" Parth responded "One Roofing. That's all one company, I think." 

Counsel then asked if she had "investigate[d] whether Bonded Roofing was licensed,"

and Parth answered, "I did not investigate anything."

According to a June 2007 Board resolution, the Board hired Bonded Roofing to 

work on a time and materials basis. Layton said that he never met with the Board in a 

formal meeting or submitted a bid for the work before he started work on the roof. The 
6

Association had no records of a written contract with Bonded Roofing or any other 

roofer. 

Warren Roofing submitted invoices and was ultimately paid more than $1.19 

million for the work. Many of the checks were signed by Parth. Layton stated that 

"Bonded Roofing had nothing to do with the money on this job" and that he was paid by 

Warren Roofing. Board member Tom Thomas indicated that no invoices from Warren 

Roofing were included in the packets provided to the Board members each month, and 

Board member Robert Michael likewise did not recall having seen the invoices. Parth 

explained that she relied on Board member and treasurer Robert ApRoberts, a retired 

certified public accountant, to review invoices. Larry Gliko, the Association's 

contracting expert, opined that the invoices submitted by Warren Roofing were "not at all 

characteristic" of those typically used in the building industry or submitted to 

homeowners' associations, included amounts that Gliko viewed as unnecessary, and 

charged the Association "almost double" what the work should have cost. Gliko also 

opined that "the work performed by Warren Roofing [was] deficient," "fell far below the 

standard of care," and "require[d] significant repairs."

2. Repaving projects and loans

In April 2007, the Board voted to hire a construction company to repair the 

walkways. The Board asked the membership to vote on a special assessment to fund this

and other repairs. The membership voted to approve the special assessment. 

In July 2007, Parth signed promissory notes for $900,000 and $325,000, secured 

by the Association's assets and property. She stated that at the time the special 
7

assessment was approved, the Board was investigating the possibility of obtaining a loan 

to raise the capital needed to immediately commence work on the walkway project. 

Thomas indicated that, as an Association member, he was never asked to approve the

debt and did not learn about it until this litigation commenced. The Association had no 

records indicating that the members were ever informed about, or voted on, the debt. 

In April 2010, the Board approved a bid from a paving company to perform 

repaving work. According to Parth, the Board elected to finance this repaving project 

with a bank loan, the Board reviewed the loan at the April 2010 meeting, and 

"unanimously approved" that Parth and/or ApRoberts would sign the loan documents. 

Parth further stated that at a special Board meeting in May 2010, attended by her, 

ApRoberts, and Board member Elvira Kitt-Kellam, the Board "resolved that the 

Association had the power to borrow and pledge collateral" and authorized her and 

ApRoberts to execute loan documents. Thomas stated that he never received notice of 

this meeting. In May 2010, Parth and ApRoberts signed a promissory note for $550,000, 

secured by the Association's accounts receivable and assets. Thomas indicated that he 

was never asked to vote on this debt and, again, there were no Association records 

indicating that the members were notified about or voted on it.

In construction and business loan agreements in connection with the 2007 and 

2010 notes, Parth and ApRoberts represented that the agreements were "duly authorized 

by all necessary action by [the Association]" and did not conflict with the Association's 

organizational documents or bylaws. Parth testified at her deposition that she had not 

reviewed the CC&Rs or Bylaws regarding her authority to execute a promissory note and 
8

did not know whether she had such authority under the CC&Rs. In her declaration in 

support of summary judgment, Parth explained that she believed she "had authority to 

borrow money and execute loan documents on behalf of the Association in [her] capacity 

as president," and was "unaware that a vote of the majority of the members was required 

in order to pledge the Association's assets as security for the loan." She also indicated 

that "no one advised [her] that she did not have authority to sign the loan 

documents . . . or that a vote of the membership was required." 

3. Jesse's Landscaping

At a December 2010 Board executive meeting attended by Parth, Michael, and 

Kitt-Kellam, those Board members approved and signed a five-year contract with Jesse's

Landscaping. Thomas indicated that he was not given notice of the meeting. At her 

deposition, in response to a question regarding whether she had the authority to sign a 

five-year contract, Parth answered, "I don't know." During the same line of questioning, 

Parth also acknowledged that her "understanding of what [her] authority is under the 

bylaws" was "[n]one."

4. Termination of Personalized Property Management

During the relevant time period, the Association's management company was 

Personalized Property Management (PPM). According to Parth, PPM's owner advised 

her in or around June or July 2011 that PPM no longer wanted to provide management 

services for the Association. At a July 9, 2011 Board meeting regarding termination of 

PPM, the Board tabled any decision to terminate PPM until bids from other companies 

were obtained and reviewed. Parth proceeded to hire the Lyttleton Company to serve as 
9

the Association's new management company. Thomas stated that he never received 

written notice of a Board meeting to vote on the hiring of Lyttleton. Parth noticed an 

executive meeting for July 16, 2011, to discuss termination of PPM and retention of a 

new company, at which time the Board voted three to two to terminate PPM. Thomas 

stated that he objected to the vote at the time, based on the Board's prior decision to table 

the matter. 

5. Desert Protection Security Services contract

Gary Drawert, doing business as Desert Protection Security Services (Desert 

Protection), had provided security services for Palm Springs Villas II since 2004. The 

Association executed a written contract with Desert Protection in December 2003 for one 

year of security services. Thomas stated that after joining the Board, he learned that 

Desert Protection and other vendors were providing services pursuant to "oral or monthto-month agreements." In July 2010, the Board authorized Thomas to obtain bids from 

security companies to provide security services for 2011. 

In January 2011, Parth signed a one-year contract with Desert Protection. Her 

understanding was that "any contract that was not renewed in writing would . . . be 

automatically renewed until terminated" and that she was "merely updating the contract, 

as instructed by management."2 She believed that she had the "authority to sign the 

contract as the Association's president." She further explained that, at the time, the Board 

 

2 Although Parth's statement that she believed that she had been instructed by 

management to enter into the contract with Desert Protection is in the record, the trial 

court sustained an objection to her declaration statement that she was told that the 

contract "needed to be updated and was ready to be signed."
10

had not voted to terminate Desert Protection and discussions regarding a new security 

company had been tabled. 

There were no records indicating that Parth submitted the 2011 Desert Protection 

agreement to the Board for review or that the Board authorized her to execute it. 

According to Thomas, Parth did not inform the other Board members that she had signed 

the agreement. Michael likewise indicated that he had not attended any Board meeting at 

which the agreement was discussed, and he did not recall the Board having voted on it. 

Kitt-Kellam stated that the Board never authorized the contract. 

In February 2011, the Association's manager sent Parth and others an e-mail 

recommending that the Board update certain contracts, including the contract with Desert 

Protection. Thomas presented the security company bids at a March 2011 Board 

meeting. The Board tabled the discussion at this meeting and at the subsequent April 

2011 meeting. At the July 2011 meeting, the Board approved a proposal from Securitas 

in a three-to-one vote, with Parth abstaining. According to Thomas, Parth did not 

disclose at any of these meetings that she had signed a one-year contract with Desert 

Protection in January 2011. Following the July 2011 Board meeting, Desert Protection 

was sent a 30-day termination letter, based on the Board's understanding that the 

company was operating on a month-to-month basis. 

In August 2011, Gary Drawert, the principal of Desert Protection, left a voice mail 

message for Thomas regarding the Desert Protection agreement. Thomas indicated that 

prior to this voice mail, he was not aware of the agreement. At the September 2011 

Board meeting, Parth produced the Desert Protection agreement. The Board did not 
11

ratify it. 

C. Desert Protection sues and the Association files a cross-complaint 

Drawert sued the Association for breach of contract. The Association 

cross-complained against Desert Protection and Parth. Following an initial demurrer, the 

Association filed the operative First Amended Cross-Complaint. The Association settled 

with Drawert. 

With respect to Parth, the Association asserted causes of action for breach of 

fiduciary duty and breach of governing documents. The cause of action for breach of 

fiduciary duty alleged that Parth had breached her duties to comply with the governing 

documents and to avoid causing harm to the Association by, among other things, refusing 

to submit bids or contracts to the Board, "unilaterally terminating" PPM, and signing the 

contract with Desert Protection. The breach of governing documents cause of action

identified CC&R and Bylaw provisions and identified actions taken by Parth in breach of 

these provisions, including the termination of PPM and entering into the Desert 

Protection contract. 

Parth demurred to the First Amended Cross-Complaint. With respect to the 

governing documents claim, she contended that the claim failed to state a cause of action 

and was uncertain. The court sustained the demurrer without leave to amend as to this 

cause of action. We discuss this ruling in more detail, post. 

Parth moved for summary judgment, contending that the claim of breach of 

fiduciary duty was barred by the business judgment rule and by the exculpatory provision

in the CC&Rs. The trial court granted the motion. In doing so, the court described the 
12

business judgment rule (including the requirement that directors "act[] on an informed 

basis") and observed that courts will not hold directors liable for errors in judgment, as 

long as the directors were: "(1) disinterested and independent; (2) acting in good faith; 

and (3) reasonably diligent in informing themselves of the facts." The court further noted

that the plaintiff has the burden of demonstrating, among other things, that "the 

decision . . . was made in bad faith (e.g., fraudulently) or without the requisite degree of 

care and diligence."3

The court found that Parth had set forth sufficient evidence that she was 

"disinterested," and that she had "acted in good faith and without willful or intentional 

misconduct," and "upon the basis of such information as she possessed." The burden 

shifted to the Association to establish a triable issue of material fact and the court found 

that the Association failed to satisfy this burden. As to bad faith, the court found that 

there was a triable issue as to whether Parth had violated the governing documents, but 

that such a violation would be insufficient to overcome the business judgment rule or the

exculpatory provision of the CC&Rs. With respect to diligence, the court found no 

evidence that Parth "did not use reasonable diligence in ascertaining the facts."

 

3 The trial court also stated that the "business judgment rule standard is one of gross 

negligence—i.e., failure to exercise even slight care," citing Katz v. Chevron (1994) 22 

Cal.App.4th 1352. The court did not explain how this standard relates to the components 

of the business judgment rule. The parties likewise cite the concept without such 

analysis. Given that Katz relies on Delaware law for this standard and the issues before 

us can be resolved according to the standard of reasonable diligence under California law, 

we will not focus on gross negligence in our analysis. However, the facts that raise a 

triable issue as to Parth's diligence, discussed post, would also raise an issue as to

whether she exercised "even slight care."
13

According to the court, the "gravamen of the [Association's] claims is . . . that Parth 

repeatedly acted outside the scope of her authority," and that "[t]he problem with this 

argument is that Parth believed in her authority to act and the need to act, and the 

[Association] [fails to] offer any evidence to the contrary, except to say that Parth's 

actions violated the . . . CC&Rs." 

The trial court also ruled on the Association's evidentiary objections; the parties do 

not indicate whether the court ruled on Parth's objections. The court entered judgment 

for Parth and the Association timely appealed. 

III

DISCUSSION

A. Motion for summary judgment 

The Association claims that the trial court erred in granting Parth's motion for 

summary judgment.

1. Governing law

A defendant moving for summary judgment "bears the burden of persuasion that 

there is no triable issue of material fact and that [the defendant] is entitled to judgment as 

a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 

(Aguilar).) To meet this burden, the defendant must show that one or more elements of 

the cause of action cannot be established, or that there is a complete defense to that cause 

of action. (Ibid.) Once the defendant satisfies its burden, " 'the burden shifts to the 

plaintiff . . . to show that a triable issue of one or more material facts exists as to that 

cause of action or a defense thereto.' " (Id. at p. 849.) "Because a summary judgment 
14

denies the adversary party a trial, it should be granted with caution." (Colores v. Board 

of Trustees (2003) 105 Cal.App.4th 1293, 1305.)

We review a trial court's grant of summary judgment de novo. (Buss v. Superior 

Court (1997) 16 Cal.4th 35, 60.) "[W]e must assume the role of the trial court and 

redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving 

party's papers. [Citation.] The declarations of the party opposing summary judgment, 

however, are liberally construed to determine the existence of triable issues of fact. All 

doubts as to whether any material, triable issues of fact exist are to be resolved in favor of 

the party opposing summary judgment." (Barber v. Marina Sailing, Inc. (1995) 36 

Cal.App.4th 558, 562.)4

2. Application

a. Principles governing decisionmaking by a director

"The common law 'business judgment rule' refers to a judicial policy of deference 

to the business judgment of corporate directors in the exercise of their broad discretion in 

making corporate decisions . . . . Under this rule, a director is not liable for a mistake in 

business judgment which is made in good faith and in what he or she believes to be the 

best interests of the corporation, where no conflict of interest exists." (Gaillard v. 

 

4 Contrary to Parth's claim, a summary judgment is not "entitled to a presumption of 

correctness." The cases on which she relies simply confirm the general principle that an 

appellant must establish error on appeal. (See, e.g., Denham v. The Superior Court of 

Los Angeles County (Marsh & Kidder) (1970) 2 Cal.3d 557, 564 ["[E]rror must be 

affirmatively shown."]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 ["Although 

our review of a summary judgment is de novo, it is limited to issues which have been 

adequately raised and supported in [appellants'] brief."].) 
15

Natomas Co. (1989) 208 Cal.App.3d 1250, 1263 (Gaillard); see Ritter & Ritter, Inc. 

Pension & Profit Plan v. The Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 

123 (Ritter) [business judgment rule "sets up a presumption that directors' decisions are 

based on sound business judgment"].) 

In California, there is a statutory business judgment rule. Corporations Code 

section 7231 applies to nonprofit corporations and provides that "[a] director shall 

perform the duties of a director, . . . , in good faith, in a manner such director believes to 

be in the best interests of the corporation and with such care, including reasonable 

inquiry, as an ordinarily prudent person in a like position would use under similar 

circumstances." (§ 7231, subd. (a); see Ritter, supra, 166 Cal.App.4th at p. 123.) The 

statute goes on to state that "[a] person who performs the duties of a director in 

accordance [with the preceding subdivisions] . . . shall have no liability based upon any 

alleged failure to discharge the person's obligations as a director . . . ." (§ 7231, subd. (c); 

see Ritter, at p. 123; see also § 7231.5, subd. (a) [limiting liability on the same grounds

for volunteer directors and officers].)5

"Notwithstanding the deference to a director's business judgment, the rule does not 

immunize a director from liability in the case of his or her abdication of corporate 

responsibilities." (Gaillard, supra, 208 Cal.App.3d at p. 1263.) " 'The question is 

frequently asked, how does the operation of the so-called 'business judgment rule' tie in 

with the concept of negligence? There is no conflict between the two. When courts say 

 

5 All further statutory references are to the Corporations Code unless otherwise 

indicated.
16

that they will not interfere in matters of business judgment, it is presupposed that 

judgment—reasonable diligence—has in fact been exercised. A director cannot close his 

eyes to what is going on about him in the conduct of the business of the corporation and 

have it said that he is exercising business judgment.' " (Burt v. Irvine Co. (1965) 237 

Cal.App.2d 828, 852-853 (Burt); Gaillard, supra, at pp. 1263-1264 [accord].)

Put differently, whether a director exercised reasonable diligence is one of the 

"factual prerequisites" to application of the business judgment rule. (Affan v. Portofino 

Cove Homeowners Assn. (2010) 189 Cal.App.4th 930, 941 (Affan); id. at p. 943 [finding 

a homeowners association "failed to establish the factual prerequisites for applying the 

rule of judicial deference" at trial, where "there was no evidence the board engaged in 

'reasonable investigation' (citation) before choosing to continue its 'piecemeal' approach 

to sewage backups"]; see §§ 7231, subd. (a), 7231.5, subd. (a); see also Lamden v. La 

Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 253 (Lamden)

[requiring "reasonable investigation" for judicial deference]; Everest Investors 8 v. 

McNeil Partners (2003) 114 Cal.App.4th 411, 432 (Everest) [accord].)

b. The business judgment rule on summary judgment

The business judgment rule "raises various issues of fact," including whether "a 

director acted as an ordinarily prudent person under similar circumstances" and "made a 

reasonable inquiry as indicated by the circumstances." (Gaillard, supra, 208 Cal.App.3d 

at p. 1267.) "Such questions generally should be left to a trier of fact," but can become 

questions of law "where the evidence establishes there is no controverted material fact." 

(Id. at pp. 1267-1268.) "The function of the trial court in ruling on [a] motion[] for 
17

summary judgment [is] merely to determine whether such issues of fact exist, and not to 

decide the merits of the issues themselves. [Citation.] Our function is the same as that of 

the trial court." (Id. at p. 1268; see id. at p. 1271 [identifying a triable issue of fact as to 

whether it was reasonable for the directors on the compensation committee to rely on 

outside counsel "with no further inquiry," and observing that "[a] trier of fact could 

reasonably find that the circumstances warranted a thorough review of the golden 

parachute agreements"]; id. at pp. 1271-1272 [noting a "triable issue of fact as to whether 

some further inquiry" was warranted by the other directors regarding the golden 

parachutes, under the circumstances, notwithstanding that they were entitled to rely on 

the recommendation of the compensation committee].)6 (Cf. Harvey v. The Landing 

Homeowners Assn. (2008) 162 Cal.App.4th 809, 822 [affirming summary judgment in 

dispute over attic space use where undisputed evidence showed the board, upon 

"reasonable investigation" and in good faith "properly exercised its discretion within the 

scope of the CC&R's . . . ."].)

c. The trial court erred in granting summary judgment

The Association raises two challenges to the summary judgment ruling: that the 

trial court erred by applying the business judgment rule to Parth's ultra vires acts (or 

 

6 (See Everest, supra, 114 Cal.App.4th at p. 430 [finding that triable issues of fact 

as to the existence of improper motives and a conflict of interest "preclude[d] summary 

judgment based on the business judgment rule"]; Will v. Engebretson & Co. (1989) 213 

Cal.App.3d 1033, 1044 ["Will submitted evidence that . . . the committee members never 

reviewed the complaint, the financial records of the corporation, or made any 

investigation into the matter at all. Company, of course, disputes these allegations. But it 

is precisely because the issues are disputed that it was error for the trial court to resolve 

the issues . . . ."].)
18

conduct otherwise outside Parth's authority) and that there are triable issues of material

fact as to whether Parth exercised reasonable diligence.

i. Ultra vires conduct

The Association has not established that Parth's conduct was ultra vires. Ultra 

vires conduct is conduct that is beyond the power of the corporation, not an individual 

director. (See McDermott v. Bear Film Co. (1963) 219 Cal.App.2d 607, 610-611 ["In its 

true sense the phrase ultra vires describes action which is beyond the purpose or power of 

the corporation."]; Sammis v. Stafford (1996) 48 Cal.App.4th 1935, 1942 ["If, however, 

the director's act was within the corporate powers, but was performed without authority 

or in an unauthorized manner, the act is not ultra vires."].) The Association does not 

distinguish these authorities, nor does it identify conduct by Parth that went beyond the 

power of the Association. 

However, the Association does cite cases suggesting that noncompliance with

governing documents may fall outside the scope of the business judgment rule, at least in 

certain circumstances. (See Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 

Cal.4th 361, 374 (Nahrstedt) [finding "courts will uphold decisions made by the 

governing board of an owners association," where among other things, they "are 

consistent with the development's governing documents"]; Lamden, supra, 21 Cal.4th at 

p. 253 [requiring that association board "exercise[] discretion within the scope of its 

authority under relevant statutes, covenants and restrictions" in order to merit judicial 

deference]; Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 979 

[accord]; Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370, 388 [finding 
19

a "board's decision is not scrutinized under the business judgment rule . . . until after the 

court determines that the action . . . falls with the discretionary range of action authorized 

by the contract"].) See also Ekstrom v. Marquesa at Monarch Beach Homeowners Assn.

(2008) 168 Cal.App.4th 1111, 1123 ("Even if the Board was acting in good faith . . . , its 

policy . . . was not in accord with the CC&Rs. . . . The Board's interpretation of the 

CC&Rs was inconsistent with the plain meaning of the document and thus not entitled to 

judicial deference.").

Parth contends that the business judgment rule protects a director who violates 

governing documents, as long as the director believes that the actions are in the best 

interests of the corporation. She relies on Biren v. Equality Emergency Medical Group, 

Inc. (2002) 102 Cal.App.4th 125 (Biren). Biren, which involved a dispute between a 

company and a former director, held that the "business judgment rule may protect a 

director who acts in a mistaken but good faith belief on behalf of the corporation without 

obtaining the requisite shareholder approval." The Biren court determined that the 

director in question was protected by the rule, even though she violated the shareholder 

agreement. (Id. at pp. 131-132.) However, the court did not suggest that such conduct

would always be protected. Rather, the court concluded that the violation "did not by

itself make the business judgment rule inapplicable," explaining that the company failed 

to prove that the director had "intentionally usurped her authority" or that "her actions

were anything more than an honest mistake." (Id. at p. 137.) The court also noted the 

trial court's "finding that [the director] 'reasonably relied' on information she believed to 

be correct," observing that this was "tantamount to a finding she acted in good faith." (Id.
20

at p. 136.) In other words, Biren held that the director's violation of the governing 

documents did not render the business judgment rule inapplicable under the 

circumstances; namely, where the remainder of the business judgment rule requirements 

were satisfied. 

Here, the trial court agreed that there was a triable issue of material fact as to 

whether Parth breached the governing documents, but concluded that even if she had, this 

was insufficient to overcome the protection of the business judgment rule. However, the 

case law is clear that conduct contrary to governing documents may fall outside the 

business judgment rule. (See, e.g., Nahrstedt, supra, 8 Cal.4th at p. 374.) Even if Biren

establishes an exception to this principle where the director has satisfied the remaining 

elements of the business judgment rule, in this case, triable issues of material fact exist 

as to other elements of the rule and render Biren inapplicable, at least at this stage. The 

trial court erred in assuming that the business judgment rule would apply to Parth's 

actions that violated the governing documents.

ii. Material issues of fact

Although the trial court properly recognized that a director must act on an 

informed basis, be reasonably diligent, and exercise care in order to rely on the business 

judgment rule, the court erred in concluding that the Association failed to demonstrate 

triable issues of fact with respect to these matters. (See Gaillard, supra, 208 Cal.App.3d 

at pp. 1271-1272, 1274 [reversing summary judgment due to material issues of fact as to 

whether further inquiry was warranted].) We conclude that material issues of fact exist 

as to whether Parth exercised reasonable diligence in connection with the actions at issue.
21

First, with respect to the roofing repairs, Parth explained how she found Warren 

Roofing and testified at her deposition that Warren Roofing was licensed. However, 

during the same line of questioning, she displayed ignorance of the relationship between 

Warren Roofing and Bonded Roofing and admitted that she had not "investigate[d]

anything" pertaining to whether Bonded Roofing was licensed. The Association also 

established that Parth retained a roofing contractor without any formal bid or contract, 

that the Board retained Bonded Roofing but paid Warren Roofing, that Warren Roofing 

may have significantly overcharged the Association for the work performed, and that this 

work was defective and required repair.7 This evidence is sufficient to raise an issue as 

to Parth's diligence in investigating, retaining, and paying the roofers. (See Affan, supra, 

189 Cal.App.4th at pp. 941, 943 [business judgment rule did not apply where, among 

other things, there was no evidence of a reasonable investigation into sewage work].)8

Parth's reliance on ApRoberts to review invoices does not resolve these issues. (See 

Gaillard, supra, 208 Cal.App.3d at p. 1271 [although the directors could rely upon the 

recommendations of outside counsel and the compensation committee, triable issues 

 

7 There also was no evidence of a written warranty for the roofing work. Layton

testified at deposition that he provided a warranty, but did not indicate that it was written, 

and Parth contends only that she obtained a verbal warranty. 

8 The Association contends that both Warren Roofing and Bonded Roofing were 

unlicensed at the time the roofing work was done, while Parth maintains that Warren 

Roofing was licensed. We need not address this dispute. Although the existence of facts 

that the exercise of proper diligence might have disclosed (such as license status) may be 

relevant to whether Parth exhibited reasonable diligence (see Berg & Berg Enterprises, 

LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1046), we conclude that her admission that 

she "did not investigate anything," in the context of a major repair project, is sufficient to 

raise a triable issue.
22

existed as to whether further inquiry was still required under the circumstances].)

Second, the 2007 and 2010 promissory notes, secured by Association assets,

similarly raise issues as to whether Parth proceeded on an informed basis. She relies on 

her belief that she had the authority to take out the loans, her lack of awareness that a 

member vote was required to encumber the assets of the Association, and that no one 

advised her that she lacked the authority or that membership approval was required. She 

also states in her declaration that she and two other Board members authorized her and 

ApRoberts to sign the 2010 note. However, as the Association points out, the governing 

documents require member approval for such debt and there is no record of such 

approval. Parth's deposition testimony also reflects that she did not know whether she 

had the authority under the governing documents to sign the loans, and that she made no 

effort to determine whether she had such authority. Whether Parth exercised sufficient 

diligence to inform herself of the Association's requirements pertaining to the loans at 

issue is a question for the trier of fact. (See Gaillard, supra, 208 Cal.App.3d at p. 1267; 

id. at p. 1271 [noting triable issue as to whether the "circumstances warranted a thorough 

review of the . . . agreements"].) Parth "cannot close [her] eyes" to matters as basic as the 

provisions of the CC&Rs and Bylaws of the Association and at the same time claim that 

she "exercis[ed] business judgment." (Id. at p. 1263.) 

Third, as to Jesse's Landscaping, Parth indicated that three Board members, 

including herself, approved a five-year contract in 2010. However, the Association 

provided evidence that the governing documents require that a contract with a third party 

exceeding one year be approved by member vote. In addition, Parth acknowledged at her
23

deposition that she did not know whether she had the authority to sign a five-year 

contract, and that she had no understanding of what her authority was under the Bylaws. 

This evidence suggests that Parth may not have understood, nor made any effort to 

understand, whether the Board was permitted to authorize the Jesse's Landscaping

contract without member approval. As with the loans, Parth's admitted lack of effort to 

inform herself of the extent of her authority in this regard is sufficient to establish a 

triable issue. (See Gaillard, supra, 208 Cal.App.3d at pp. 1263, 1267, 1271.)

Fourth, regarding the PPM termination, Parth explained that PPM's owner did not 

want PPM to be the management company for the Association any longer and that the 

Board subsequently voted to terminate PPM on July 16, 2011. However, the 

Association's evidence reflects that the Board had tabled the issue of the termination of 

PPM on July 9 and that Parth met with and hired Lyttleton Company, apparently without 

calling a Board meeting to vote on the matter. The timeline of these events is somewhat 

unclear, including whether Parth hired Lyttleton before the Board voted to terminate 

PPM, but we will not attempt to resolve such factual issues on summary judgment.

Regardless of the timing, the evidence presented as to the matter raises questions as to 

whether Parth proceeded with reasonable diligence. (See Gaillard, supra, 208 

Cal.App.3d at pp. 1271-1272; Affan, supra, 189 Cal.App.4th at pp. 941, 943.)

Finally, the Desert Security contract similarly calls into question Parth's diligence. 

Parth offered several explanations for her execution of the contract with Desert Security

in January 2011, despite the Board's decision to consider bids from other companies for 
24

security services. Some of her explanations were inconsistent,9 and the Association's 

evidence cast doubt on all of them. With respect to Parth's stated belief that she had the

authority to sign the contract, the Association provided evidence in other contexts (e.g.,

the promissory notes) that Parth failed to understand the scope of her authority; this same 

evidence suggests that she made no effort to ascertain what authority she did possess to 

conduct the business of the Association. The business judgment rule would not extend to 

such willful ignorance. (See Gaillard, supra, 208 Cal.App.3d at p. 1263.) Parth also 

indicated that at the time she signed the contract, the Board had tabled the security 

discussion and had not yet terminated Desert Protection. However, the Association 

provided evidence that Parth failed to bring the new contract to the attention of the Board 

or alert the Board to its existence, even after the security discussion had been reopened, 

thus calling into question Parth's explanations. This conduct raises serious questions as 

to Parth's diligence, particularly given the timing of the relevant events. (Id. at p. 1271

[noting the "nature" and "timing" of the agreements at issue].)

Although the trial court declined to address much of the Association's evidence, it 

did discuss the Desert Protection situation. The court stated that the Association disputed 

the basis for Parth's belief in her authority to sign the Desert Protection contract by citing 

the Bylaws, and concluded that this evidence did not controvert Parth's professed belief.

While the Bylaws may not undermine Parth's belief, together with the Association's other 

 

9 For example, Parth indicated both that she believed nonwritten contracts would be 

automatically renewed and that she was "merely updating" the contract, without 

explaining why a new or updated contract would be necessary if the existing contract 

would automatically be renewed. 
25

evidence, they do demonstrate the existence of a triable issue of material fact as to 

whether Parth's proceeding on such belief—without keeping the Board informed—

showed reasonable diligence under the circumstances. 

In sum, the Association produced evidence establishing the existence of triable 

issues of material fact as to whether Parth acted on an informed basis and with reasonable 

diligence, precluding summary judgment based on the business judgment rule. The trial 

court's erroneous conclusion that "there [was] no evidence that Parth did not use 

reasonable diligence" reflects a misapplication of the business judgment rule, summary 

judgment standards, or both. To the extent that the court viewed the Association's 

evidence regarding Parth's diligence as irrelevant, in light of her "belief[] in [her]

authority to act and the need to act," the court failed to apply the reasonable diligence 

requirement in any meaningful way. Permitting directors to remain ignorant and to rely

on their uninformed beliefs to obtain summary judgment would gut the reasonable

diligence element of the rule and, quite possibly, incentivize directors to remain ignorant. 

To the extent that the trial court did consider the Association's evidence, but found it 

insufficient to establish a lack of diligence, the court improperly stepped into the role of 

fact finder and decided the merits of the issue. 

In addition, the Association contends that courts treat diligence and good faith as 

intertwined, citing Biren's description of the trial court's finding that the director 

reasonably relied on information she believed to be correct as "tantamount" to a finding 

of good faith. (See Biren, supra, 102 Cal.App.4th at p. 136.) Our own research reveals 

that other courts similarly have considered diligence as part of the good faith inquiry. 
26

(See, e.g., Affan, supra, 189 Cal.App.4th at p. 943 ["Nor was there evidence the 

Association acted 'in good faith . . . , because no one testified about the board's 

decisionmaking process . . . . [¶] [I]n Lamden, ample evidence demonstrated the 

association board engaged in the sort of reasoned decisionmaking that merits judicial 

deference. There is no such showing in the case before us."]; see also Desaigoudar v. 

Meyercord (2003) 108 Cal.App.4th 173, 189 ["[T]he court must look into the procedures 

employed and determine whether they were adequate or whether they were so inadequate 

as to suggest fraud or bad faith. That is, '[p]roof . . . that the investigation has been so 

restricted in scope, so shallow in execution, or otherwise so pro forma or halfhearted as 

to constitute a pretext or sham, consistent with the principles underlying the application 

of the business judgment doctrine, would raise questions of good faith or conceivably 

fraud which would never be shielded by that doctrine.' "].) In light of these authorities, 

we recognize that there may be a triable issue of material fact as to Parth's good faith, as 

well.10

 

10 The Association also appears to challenge several other actions on the part of 

Parth, but fails to support its challenge with argument and/or specific authority. These 

actions include Parth's execution of the Board member Code of Conduct, certain 

purported violations of the Common Interest Open Meeting Act and Davis-Stirling 

Common Interest Development Act, and various facts pertaining to bad faith. We deem 

these matters forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley) [it is not 

the reviewing court's role to "construct a theory" for appellant: "[E]very brief should 

contain a legal argument with citation of authorities on the points made. If none is 

furnished on a particular point, the court may treat it as waived. . . ."].) In addition, 

because we conclude that the Association has established the existence of triable issues of 

material fact as to both the business judgment rule and the exculpatory provision of the 

CC&Rs, see discussion post, we need not reach its arguments under section 5047.5 and 
27

iii. Parth's contentions

As a preliminary matter, Parth contends that "[v]irtually all of the evidence 

proffered in opposition to the motion for summary judgment was inadmissible," but cites

only her own evidentiary objections, rather than any ruling by the trial court. She also 

does not offer any argument regarding the evidence itself, other than to state generally 

that evidence without foundation is inadmissible (and, with one exception not relevant 

here, does not identify any specific evidence). We conclude that Parth has forfeited these 

objections. (Stanley, supra, 10 Cal.4th at p. 793; Del Real v. City of Riverside (2002) 95 

Cal.App.4th 761, 768 ["[I]t is counsel's duty to point out portions of the record that 

support the position taken on appeal . . . ."]; ibid. ["[A]ny point raised that lacks citation 

may, in this court's discretion, be deemed waived."].) 

Turning to Parth's substantive arguments, we first address her contention that she

displayed no bad faith. She relies on cases characterizing bad faith as intentional 

misconduct, encompassing fraud, conflicts of interest, and intent to serve an outside 

purpose. (See, e.g., Barnes v. State Farm Mut. Auto. Ins. Co. (1993) 16 Cal.App.4th 365, 

379.) However, the Association's appeal focuses on Parth's failure to exercise reasonable 

diligence, so establishing an absence of evidence of intentional misconduct unrelated to 

diligence does not undermine the Association's arguments.

Next, Parth suggests that the Association's concerns with respect to her lack of

diligence in securing a roofing contractor sound in negligence, contending that "a 

 

Civil Code section 5800 or its argument that Parth is estopped from claiming ignorance 

of the governing documents. 
28

director's conduct or decisions are not judged according to a negligence standard."

(Boldface omitted.) However, as the authorities discussed ante make clear, there is "no 

conflict" between the business judgment rule and negligence, and application of that rule 

"presuppose[s] that . . . reasonable diligence [] has in fact been exercised." (Gaillard, 

supra, 208 Cal.App.3d at pp. 1263-1264, quoting Burt, supra, 237 Cal.App.2d at pp. 852-

853; Affan, supra, 189 Cal.App.4th at p. 941.)

Parth's reliance on the exculpatory clause of the Association's CC&Rs is similarly 

unpersuasive. She contends that even if she exceeded her authority, the "only condition 

for the stated contractual immunity is that the board members perform their duties in 

'good faith, and without willful or intentional misconduct.' " However, she fails to 

address the immediately preceding clause, which requires that the director act "upon the 

basis of such information as may be possessed by [her]." This language is arguably 

analogous to the business judgment rule's reasonable diligence requirement. (Gaillard, 

supra, 208 Cal.App.3d at pp. 1263-1264.) At minimum, even if the exculpatory 

provision did not obligate Parth to obtain additional information regarding particular 

undertakings, it surely contemplated that she would familiarize herself with information 

already in her possession—such as the governing documents of the Association. Further, 

both the business judgment rule and the exculpatory clause of the CC&Rs require good 

faith and, as discussed ante, an absence of diligence may reflect a lack of good faith. 

Given this overlap, we conclude that at least some of the triable issues of material fact 

that bar summary judgment with respect to the business judgment rule similarly preclude 
29

it as to the exculpatory clause.11

Finally, we address Parth's contention that the Association's claim is time barred to 

the extent that it concerns events that occurred prior to May 22, 2008. Parth contends 

that there is a four-year statute of limitations for a breach of fiduciary duty claim and that 

admissible evidence is required to support the claim, but does not explain how these 

principles would permit her to obtain summary judgment as to a portion of a cause of 

action. We agree with the Association both that Parth's attempt to apply the statute of 

limitations to obtain judgment on a part of its breach of fiduciary duty claim is improper

and that the existence of material questions of fact preclude resolution of statute of 

limitations issues at this juncture. (See McCaskey v. California State Automobile Assn.

(2010) 189 Cal.App.4th 947, 975 ["there can be no summary adjudication of less than an 

entire cause of action . . . . If a cause of action is not shown to be barred in its entirety, no 

order for summary judgment—or adjudication—can be entered."]; Jolly v. Eli Lilly & Co.

(1988) 44 Cal.3d 1103, 1112 ["resolution of the statute of limitations issue is normally a 

question of fact"].)

 

11 We reject Parth's claim that the Association waived the exculpatory clause issue. 

Although the Association did not address the issue until its reply brief, it takes the 

position on reply that the exculpatory clause is "a recitation of the business judgment 

rule." Parth, meanwhile, relied on the same undisputed facts to support both issues. 

Under the circumstances, we see no reason to preclude the Association from relying on 

its business judgment rule arguments and evidence for the exculpatory clause issue.
30

B. Demurrer

The Association contends that the trial court erroneously granted Parth's demurrer 

to its cause of action for breach of governing documents, without leave to amend. 

1. Governing law

We review a ruling sustaining a demurrer de novo, exercising independent 

judgment as to whether the complaint states a cause of action as a matter of law. (Desai 

v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.) "We affirm the judgment 

if it is correct on any ground stated in the demurrer, regardless of the trial court's stated 

reasons." (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 

111.) Further, " '[i]f another proper ground for sustaining the demurrer exists, this court 

will still affirm the demurrer[ ] . . . .' " (Jocer Enterprises, Inc. v. Price (2010) 183 

Cal.App.4th 559, 566.)

When a demurrer is sustained without leave to amend, "we decide whether there is 

a reasonable possibility that the defect can be cured by amendment: if it can be, the trial 

court has abused its discretion and we reverse; if not, there has been no abuse of 

discretion and we affirm. [Citations.] The burden of proving such reasonable possibility 

is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).)

2. Application

With respect to the Association's cause of action for breach of governing 

documents, the trial court ruled: "The HOA has not alleged that Parth breached any

covenant. The only sections of the governing documents referred to in the 

cross-complaint are bylaws that deal with the Boards [sic] transaction of the Associations 
31

[sic] business affairs 7-11. These sections describe how the Board acts. It . . . does not 

appear that they are covenants between the HOA and individual members that the HOA 

may sue to enforce." 

First, the Association does not cite only the Bylaws; it also cites the CC&R 

provision reserving authority over the Association's affairs to the Board. In any event, 

we see no reason why the governing document provisions would be unenforceable as to 

Parth, an owner and Association member who was serving as president and was a 

member of the Board. (See Civ. Code, § 5975, subd. (a) ["The covenants and restrictions 

in the declaration shall be enforceable equitable servitudes . . . and bind all owners" and 

generally "may be enforced by . . . the association"], subd. (b) ["A governing document 

other than the declaration may be enforced by the association against an owner"]; see 

also, e.g., Biren, supra, 102 Cal.App.4th at p. 141 [affirming judgment against director 

for breach of shareholder agreement]; Briano v. Rubio (1996) 46 Cal.App.4th 1167, 

1172, 1180 [affirming judgment against directors for violation of articles of 

incorporation].) 

Regardless, as Parth argues, the cause of action for breach of governing documents 

appears to be duplicative of the cause of action for breach of fiduciary duty. This court 

has recognized this as a basis for sustaining a demurrer. (See Rodrigues v. Campbell 

Industries (1978) 87 Cal.App.3d 494, 501 [finding demurrer was properly sustained 

without leave to amend as to cause of action that contained allegations of other causes 

and "thus add[ed] nothing to the complaint by way of fact or theory of recovery"]; see 

also Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135 [Second 
32

Appellate District, Division Four; demurrer should have been sustained as to duplicative 

causes of action].)12 The Association does not address Parth's argument or explain how 

its document claim differs from the fiduciary breach claim. We conclude that the trial 

court properly sustained the demurrer.

Second, the burden is on the Association to articulate how it could amend its 

pleading to render it sufficient. (Blank, supra, 39 Cal.3d at p. 318; Goodman v. Kennedy

(1976) 18 Cal.3d 335, 349 ["Plaintiff must show in what manner he can amend his 

complaint and how that amendment will change the legal effect of his pleading."].) The 

Association offers no argument on this point and we therefore conclude that it has 

forfeited the issue. (Stanley, supra, 10 Cal.4th at p. 793.)

 

12 But see Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 

Cal.App.4th 858, 890 (Sixth Appellate District) (finding that duplication is not grounds 

for demurrer and that a motion to strike is the proper way to address duplicative 

material).
33

IV

DISPOSITION

The order granting summary judgment and judgment are reversed. The ruling 

sustaining the demurrer to the breach of governing documents cause of action without 

leave to amend is affirmed. The parties shall bear their own costs on appeal.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

PRAGER, J.*

 

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.