Irish Beach Clusterhomes Assoc. v. Bertoli CA1/5

Filed 5/20/16 Irish Beach Clusterhomes Assoc. v. Bertoli CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

IRISH BEACH CLUSTERHOMES ASSOCIATION, Plaintiff and Appellant, A142326

v. (Mendocino County CHRISTIAN BERTOLI et al., Super. Ct. No. SCUK-CVG-13-61986) Defendants and Respondents.

Plaintiff and appellant Irish Beach Clusterhomes Association (the Association) appeals from the trial court’s order sustaining the defendants’ demurrer without leave to amend. We reverse and remand. BACKGROUND1 The Association is an unincorporated association that serves as the homeowners association for the Irish Beach Clusterhomes common interest development (the Development). There are 16 lots in the Development. Ten of the lots are undeveloped; these are owned by William Moores, Tona Moores, and Jessica Olsen.2 The Moores and Olsen are also the members of the Association’s governing board (Board). The 1 Our recitation of the underlying facts assumes the truth of the allegations of the operative second amended complaint (complaint) and its attachments, and considers judicially noticeable facts. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando); Sarale v. Pacific Gas & Elec. Co. (2010) 189 Cal.App.4th 225, 245.) 2 The parties agree that Olsen is the Moores’ daughter.

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defendants are twelve individuals who own the Development’s remaining six lots, all of which have a single family residence (the individual defendants), and the Irish Beach Clusterhomes Association, Inc., a California corporation (Irish Beach, Inc.) apparently formed by some or all of the individual defendants.3 Since 2003, the individual defendants have not fully paid assessments levied by the Association. In 2005, the Association’s Board sued the individual defendants seeking payment of outstanding assessments. After a bench trial, the trial court held the Board’s actions were invalid because, under the Development’s covenants, conditions and restrictions (CCRs), only lots that had been improved with a home were entitled to vote. (Irish Beach Clusterhomes Association Board of Governors v. Farrell (Jan. 21, 2009, A120147) [nonpub. opn.].) On appeal, the resulting judgment was declared void on the ground that the Board was not a legal entity. (Id.) The Association paid for the legal fees incurred in this litigation through personal loans from its Board, the Moores and Olsen. In 2010, the Association hired a debt collection agency to collect delinquent assessments. Further litigation ensued. (See JQD Inc. v. Irish Beach Clusterhomes Association (Mar. 6, 2015, A138145) [nonpub. opn.]; Bertoli v. Dennis (Jan. 5, 2015, A137221) [nonpub.