Opinion
NOT TO BE PUBLISHED
Del Norte County, Super. Ct. No. CVUJ01-1598
Jones, P.J.
In this consolidated appeal, appellants Vincent J. Falletta, as trustee of the Vincent J. Falletta Trust, and his daughter, Cathy Falletta, appeal a judgment that dismissed their complaint against Sun Star Country Club (Sun Star) for declaratory and injunctive relief and partition and that quieted title in Sun Star to a 160-acre ranch in Sun Star’s cross-complaint for quiet title. Among other forms of relief, the Fallettas had sought title in fee to 10 specific acres of the 160-acre ranch. The Fallettas also appeal the postjudgment order awarding Sun Star attorney fees.
Appellant Cathy Falletta (for convenience, hereafter Cathy Falletta or Cathy) principally contends she was wrongfully expelled from Sun Star. She also contends the trial court erred in sustaining a demurrer to her fourth amended complaint and in denying her request to file a fifth amended complaint and a supplemental complaint. Both appellants contend the court erred in quieting title in Sun Star and in awarding Sun Star attorney fees.
BACKGROUND
Constitution and Bylaws of Sun Star
Sun Star is described by its constitution as an unincorporated, nonprofit country club. Its general purpose is “[t]o promote social intercourse among its members and to promote religious, scientific, social, literary, educational, recreational, and cultural purposes, and is not organized for pecuniary profit.” It was specifically formed to purchase a 160-acre parcel of land in Del Norte County, which it purchased by grant deed in May 1978. The constitution refers to this parcel as the “farm” or the “ranch.” For convenience, we shall refer to it as the Property.
Sun Star’s constitution provides that the “club” is governed by all voting members attending general or special membership meetings. It further provides that the club’s intention is to make all decisions by a “town meeting” process.
Under Sun Star’s bylaws there are 160 shares in the club, representing the 160 acres of the Property. There are two classes of members. Bylaw IIA defines one class as regular members: those persons who own at least one share. “Any person who has the fundamental objects of the club at heart may purchase share(s) until the initial 160 shares are purchased, at which time the membership rolls are automatically closed or the members, at a properly called meeting, close the membership rolls.” As revised December 14, 1995, bylaw IIID gives members the right to “transfer/sell” their shares to another person with approval of a majority the club members and upon satisfaction of certain conditions, including that “Buyer understands and fully accepts that purchase is of a membership and that no deed or title of record exists bearing any person’s name.” They also may transfer their shares back to the club at the original purchase price; with the approval of the regular members, the transferring members will also receive the value of any improvements they made to the Property. The regular members are generally referred to collectively as the association.
Bylaw IIB defines the other class: family members, consisting of children and spouses of a regular member, providing the family member resides in the same household with the regular member. Family members have the right to use the facilities of the club but have no right to vote and have no other rights as members of the club.
Bylaw IV governs expulsion of members. It provides that any member of the club may be expelled by an affirmative vote of 2/3 of the club “for conduct which the members shall deem inimical to the best interest[s] of the club. The membership of any person, and all rights pertaining to her/his membership, shall terminate immediately on expulsion, in this matter each regular member shall have one (1) vote without regard to the number of shares held.” Upon expulsion, the member is entitled to receive the return of the initial price paid for his or her shares, plus any improvements assessed by the club, less any outstanding obligations to the club.
The bylaws provide that special meetings of the regular members of the club may be held as needed after giving notice of the meeting to all regular members. All regular members have one vote for each share they hold, with the exception that each member, without regard to his or her number of shares, shall have only one vote in matters pertaining to expulsion. The members present at any regularly called meeting of the membership shall constitute a quorum for the transaction of business at any meeting of members. Voting by proxy is permissible.
In June 1991, Vincent J. Falletta, as trustee of the Vincent J. Falletta Trust (for convenience, hereafter Vincent Falletta), purchased 10 shares in Sun Star, which represented 10 acres. Vincent Falletta lives in Florida. He purchased the shares to give his daughter, Cathy Falletta, a place to live; a log cabin existed on one of the 10 acres.
Cathy Falletta’s Expulsion from Sun Star
Beginning in 1995, club members who resided on the Property began having problems with Cathy Falletta’s dogs, all rottweilers, including Jazzmine. Jeannette Phillips was about to place a stereo speaker in the back of a pickup truck belonging to a friend of Cathy when Cathy’s three dogs, who, unbeknownst to Phillips, were in the truck’s camper shell, snarled in her face and bared their teeth at her. Cathy’s friend grabbed Phillips and pulled her away from the truck. The friend told her never to get near his truck “because those dogs will take your arm off.” On another occasion Phillips got out of her car to speak to Cathy. One dog was standing next to Cathy and started to lunge. Cathy knelt down and repeated “It’s okay” to the dog. Phillips got back in her car because she “could see that the dog didn’t think it was okay.”
In December 1995, Melody O’Donnell, Cathy Falletta’s neighbor, went to Cathy’s house at 9:00 a.m. to borrow a book. No one was home. When O’Donnell turned from the front door to leave, Jazzmine and another one of Cathy’s rottweilers came onto the front porch. Cathy’s third rottweiler had come out of the dog house at the front of the house, but was on a chain. The two loose dogs ran away when she yelled at them, but they returned when she stepped off the porch. Jazzmine lunged at her and tore a hole in her clothes. She was able to scare the dogs away with a rake that was leaning against the house. Cathy’s property was not enclosed; the dogs were supposed to be kept in the goat pen. O’Donnell has three children, then ages two, four, and six, and was concerned for their well-being because of the dogs.
Cathy Falletta subsequently built a fence to restrict the dogs.
At a later date, Jazzmine got loose, came on to the O’Donnells’ property, attacked one of their dogs, and lunged at Mr. O’Donnell. Their dog was wounded but recovered; Mr. O’Donnell was frightened but not injured.
At some date after 1995 Marilyn Zieba (then Marilyn Houck) was riding her bicycle along a road on the Property when Jazzmine, who was on a leash being walked by Cathy Falletta, lunged at her.
On another occasion, the three rottweilers, on the loose, ran into Helen Matthews’s yard when children were outside; the children had to run into the house. Cathy Falletta telephoned Matthews and instructed her that if the Matthews children were playing in the O’Donnells yard and saw Cathy’s dogs, the children should run in the house to be safe. The club association met and decided that Cathy had to get rid of the dogs. Cathy’s two male rottweilers were euthanized in December 2000. She kept Jazzmine.
On November 30, 1996, Brook Sullivan, then nine years old, was spending the night with Cathy Falletta and Cathy’s daughter Lorenza. As Sullivan came downstairs Jazzmine started barking and growling. Cathy held her collar until Jazzmine appeared calm. When let go, Jazzmine started at Sullivan, who ran back up the stairs. Jazzmine grabbed her by an ankle, breaking the skin, and pulled her back down the stairs. Cathy told Sullivan not to report the incident to anyone; otherwise she would have to put the dog down. Cathy made Sullivan feel the incident was her own fault. In fact, Sullivan told her mother about the incident.
Jazzmine lunged and barked aggressively at Kendall Houck from behind a fence; they were not personally attacked by Jazzmine.
The association has four regular meetings per year, plus any special meetings as needed. From 1995 until 2001, Cathy Falletta’s dogs were an item on the agenda of at least half the meetings. The dogs were seen as dangerous, unpredictable and in need of restraint. Various votes were taken over this period as to how to deal with the dogs. At one point Cathy agreed to remove Jazzmine, but she never did.
At the association’s June 2001 solstice meeting a proposal (proposal #4) was made that “Jazzmine must be permanently removed from the ranch within 30 days.” Nine members were in favor of the proposal, three opposed it, and two abstained. The voting tally included the only proxy vote that was in proper written form. Cathy Falletta was the secretary for the June 2001 meeting; it was her last meeting to serve as secretary because the association selects a new secretary and treasurer at the annual June meeting. She did not remove Jazzmine within 30 days.
The minutes of the association’s Equinox meeting of September 1, 2001, facilitated by Sun Star’s attorney, contains a correction of the June 2001 minutes to note that proposal #4 and the voting tally thereon were omitted from the June minutes.
At that same September 1 meeting, the association, by a vote of 13 to zero, also amended the bylaws. The amendment provides: “Any animal living or visiting the ranch, regardless of ownership, which at a general or special meeting of the membership is found to be unsafe, a nuisance, vicious, bothersome, detrimental or otherwise inimical to the best interest of the ranch shall be permanently removed from the ranch. Notice of this finding shall be delivered in person, by phone or in writing as soon as possible to the member most responsible for the animal. Within 7 days of said notice the member most responsible for the animal shall permanently remove it from the ranch. If the responsible member does not remove the animal within 7 days of notice, the other ranch members may individually or in the name of the ranch take whatever action is necessary to remove the animal and all costs involved in the removal, including but not limited to all legal fees and expenses shall become the financial obligation of the responsible member and can be added to the books as an amount owed.”
The September 1, 2001 minutes also state: “It is found that Jazzmine meets the criteria of an animal inimical to the best interests of the ranch. She needs to be removed from the ranch. Eleven in favor, two opposed, zero abstain.” The association agreed that the association secretary, Marilyn Houck, would notify Cathy Falletta of these findings, and that she had seven days to remove Jazzmine permanently. Marilyn Houck did so, but Cathy did not comply.
Cathy Falletta was not present at the September 1, 2001 meeting but her daughter, Lorenza, who was a high school senior and not a voting member, attended. Lorenza brought a letter from Cathy instructing the members present not to talk or ask questions of Lorenza.
At the time of the September 1, 2001, meeting Sun Star had a total of 26 regular members. Not all of them lived on the Property.
On September 3, 2001, Vincent Falletta wrote to Sun Star requesting that from henceforth all tax bills, membership dues, notices, assessment, minutes, and any and all correspondence afforded any member of Sun Star be sent to him in Florida. Prior to this letter, he had never made such a request; all information about Sun Star was communicated to him through Cathy Falletta. Vincent Falletta also instructed Sun Star that Cathy would remain the voting member representing him and his interests in Sun Star. The only previous authorization he had given for Cathy to act on his behalf was an oral direction to Cathy that, because she lived on the Property, she should use her discretion to vote his shares.
On October 6, 2001, the association held a special meeting. It voted “to expel and terminate the membership of the Falletta Trust and Cathy’s family from Sun Star Count[r]y Club for behavior which we find contrary to the best interest of the club.” The vote was 12 in favor, zero opposition, two abstentions, and the motion “is now effective.” Voting was done by the members present at the meeting, with one vote representing a regular membership. By a vote of 12 to zero, with one abstention, the association also voted to allow Cathy Falletta 30 days to vacate Sun Star. By a unanimous vote, the association voted that if Cathy removed her dog permanently from the Property on or before October 12, 2001, she could have another 120 days to find another residence. If she did so and wanted to stay an additional amount of time in order not to disrupt her daughter’s senior year of high school, Sun Star was authorized to grant her additional time.
Bonnie Hahn, a regular member, was notified of the October 6, 2001 meeting and knew there would be a vote on whether to expel Cathy Falletta. She gave her proxy to member Katherine Roncelio, telling her that she was in favor of expulsion. She received the minutes of the meeting, which did not reflect her proxy vote. She did not think her proxy needed to be reflected in the minutes because it was not Sun Star’s procedure to register proxy votes.
Then-secretary Marilyn Houck mailed notice of the October 6 meeting to all regular members approximately two weeks prior to the meeting. Cathy Falletta received notice but did not attend. Houck mailed the notice to Vincent Falletta because he had specially requested notification. He had not previously been notified because Cathy was the acting member and instructed the association that she should receive the notices.
Procedural History
In November 2001, the Fallettas filed a complaint for declaratory and injunctive relief, partition, and quiet title. Named defendants were Sun Star and its individual members.
On May 5, 2003, Sun Star and its members answered the Fallettas’ second amended complaint, which contained nine causes of action: the aforementioned causes of action as well as causes of action for resulting trust, fraud, and conspiracy. Sun Star alone simultaneously cross-complained against the Fallettas for quiet title, conversion, nuisance, injunction, waste, and ejectment, and against Cathy Falletta only for trespass. It alleged that since Cathy’s residence on the Property, the Fallettas have violated Sun Star’s bylaw that prohibits conduct inimical to Sun Star by, among other things, “keeping a vicious dog named ‘Jazzmine’ on the Property,” despite due notice and opportunity to remove the dog, which “has and continues to vex, harass, annoy and interfere with the individual members’ use of the Property.”
The second amended complaint is not in the appellate record.
In June 2003, the Fallettas filed their answer and affirmative defenses to Sun Star’s cross-complaint.
In 2003 or 2004, Jazzmine died.
In July 2004, pursuant to a court order, Vincent Falletta filed an undertaking of $40,000 to furnish security for costs and attorney fees for Sun Star’s benefit.
On April 19, 2005, the court granted judgment on the pleadings to causes of action four through nine of the Fallettas’ second amended complaint. The Fallettas were granted leave to file a third amended complaint that conformed to the requirements of Code of Civil Procedure section 425.10, subdivision (a)(1): a complaint must contain a statement of facts constituting the cause of action in ordinary and concise language.
In May 2005, the Fallettas filed a third amended complaint containing two causes of action for declaratory relief (causes of action one and two), and causes of action for permanent injunction and partition (causes of action three and four).
On August 10, 2005, the court granted Sun Star’s motion to strike the Fallettas’ third amended complaint on Sun Star’s ground that it was not drawn or filed in conformity with California Rules of Court, rule 312(g) (now rule 2.112(4)). It independently granted the motion because the third amended complaint did not comport with Code of Civil Procedure section 425.10, subdivision (a)(1), and thus did not comply with the court’s April 19, 2005 order. It granted the Fallettas leave to file an amended complaint no later than 20 days after being served with the order to strike. It also ordered Vincent Falletta’s undertaking increased to $250,000.
On September 1, 2005, Cathy Falletta alone filed a fourth amended complaint for declaratory and injunctive relief and partition. The complaint alleged generally that the 1991 purchase of 10 shares of Sun Star entitled her to 10 specifically described acres of the Property. It also alleged generally that she had been assigned all right, title and interest of Vincent Falletta, as trustee of the Vincent J. Falletta trust, in these 10 acres.
On September 16, 2005, the court ordered that trial on Sun Star’s cross-complaint be bifurcated from trial on the fourth amended complaint. It also ordered that there would be a single judgment disposing of all issues raised in the complaint and cross-complaint.
On December 12, 2005, the court sustained Sun Star’s demurrer to the fourth amended complaint. The court observed that, unlike the three previous complaints which alleged that Vincent J. Falletta, as trustee of the Vincent J. Falletta Trust, was sole owner of the acreage that was the subject of the action, the fourth amended complaint alleged that Cathy Falletta was sole owner by way of assignment. It further noted that because this allegation was a matter arising after commencement of the action, it was properly the subject of a supplemental complaint pursuant to Code of Civil Procedure section 464, not an amended complaint, but “[t]he pleadings responsive to the fourth amended complaint do not address this concern.” The court’s reference to “responsive pleadings” was presumably to Sun Star’s demurrer to the fourth amended complaint. The order sustaining the demurrer was impliedly with leave to amend, given the concluding paragraph’s statement that “[i]f an amended complaint is to be filed, it should be composed so as to” comport with Code of Civil Procedure section 425.10, subdivision (a), include only material allegations, and avoid the device of incorporating allegations from outside “the count in which a cause of action is pleaded.” The order did not specify the date by which the amended complaint was to be filed.
On that same day, December 12, 2005, the court granted Sun Star’s motion seeking to dismiss the action by Vincent J. Falletta, as Trustee of the Vincent J. Falletta Trust, against all defendants, pursuant to Code of Civil Procedure sections 581, subdivision (f)(4) and 1030, subdivision (d) and for entry of judgment for costs on the complaint in favor of Sun Star and against Vincent J. Falletta, as Trustee of the Vincent J. Falletta Trust. The court further ordered that “[a]t such time as there may appropriately be entered one final judgment adjudicating claims asserted herein between Vincent J. Falletta, as Trustee of the Vincent J. Falletta Trust, [and Sun Star], there shall be entered a judgment effectuating this order.”
On December 30, 2005, Cathy Falletta served a fifth amended complaint and a proposed supplemental complaint. On January 3, 2006, the court “received” but did not file these two pleadings.
On January 18, 2006, Cathy Falletta moved for leave to file her proposed fifth amended complaint that was lodged with the court on January 3. In support of her motion her attorney, whose office is in San Marino, Los Angeles County, declared: On December 30 he served the proposed fifth amended complaint by overnight mail. He subsequently realized that it should have been filed no later than December 27, 2005. Not only did he miscalculate the time, he was on vacation in Utah at Christmas and into the week following, and his secretary was on vacation in Sacramento. He also understood that opposing counsel were not in their offices during that week. On Tuesday, January 10, 2006, the court instructed Cathy to seek leave to file her proposed fifth amended complaint and to discuss a stipulation with opposing counsel. Cathy’s attorney further averred that he informed opposing attorney Ronald Barkin that he would telephone Barkin on Wednesday. Barkin replied he was busy and would call on Thursday, but did not. Sun Star’s other attorney, Candice Stoddard, telephoned him on Friday, January 13, but he was in court. She was gone when he returned her call.
On January 30, 2006, the court denied Cathy Falletta’s motion to file the fifth amended complaint or the supplemental complaint.
On March 28, 2006, following trial on Sun Star’s cross-complaint, the court issued its statement of decision. It found that after Vincent Falletta acquired his membership in Sun Star in 1992, Cathy Falletta began to occupy a structure on the Property and to use the Property pursuant to her family membership rights. She kept Jazzmine on the Property. Prior to October 6, 2001, Jazzmine and Jazzmine’s conduct was a source of alarm and concern to Sun Star members, and Cathy was advised to remove the dog from the Property. The members regarded Jazzmine as unpredictable, dangerous, and in need of restraint. Cathy agreed to remove Jazzmine, but never did. On October 6, 2001, the Sun Star membership, pursuant to its constitution and bylaws, voted to expel the memberships of the Fallettas for behavior it found contrary to the Sun Star’s best interest.
Cathy Falletta did not testify at trial. Vincent Falletta’s deposition was read at trial.
As to Sun Star’s cause of action for quiet title, the court concluded as to Cathy Falletta that Sun Star was entitled to a judgment quieting title to the disputed 10 acres because the evidence demonstrated that Sun Star had acquired fee title to the property; Cathy had no interest in the Property; her only interest was a membership in Sun Star as a family member. As to Victor Falletta, it found Sun Star had proved a cause of action in quiet title as to the 160-acre parcel. None of the evidence offered on Victor Falletta’s behalf was sufficient to overcome the presumption of title in Sun Star arising from its 1978 grant deed.
As to Sun Star’s cause of action for trespass against Cathy Falletta only, it found that her possession of Sun Star’s property was unlawful after November 5, 2001, because she had been expelled from club membership on October 6, 2001, had been given 30 days to vacate if she did not permanently remove Jazzmine, and had not removed Jazzmine by November 5, 2001.
As to Sun Star’s cause of action for nuisance against Cathy Falletta, it found that since her family membership in the club was terminated on October 6, 2001, she had no right to occupy, possess, use or visit the club’s property when the cross-complaint was filed on May 5, 2003, and an injunction prohibiting her from doing so would issue.
As to Sun Star’s cause of action for ejectment against both Fallettas, it found that the October 6, 2001 action terminating Cathy Falletta’s family membership was lawfully taken because it comported with Sun Star’s constitution and bylaws. It found Cathy was given notice of the meeting, and that the vote to expel her was adopted for a legitimate reason: her prolonged maintenance of Jazzmine on the Property when Jazzmine created alarm and concern among Sun Star members because of the dog’s threatening manner constituted conduct contrary to the best interest of Sun Star. However, expulsion could not be sustained as to Vincent Falletta because he did not live on the Property or maintain Jazzmine, nor was there evidence that he did anything to support Jazzmine’s presence on the Property. The evidence also did not support a conclusion that Vincent Falletta was given notice of the October 6, 2001 meeting in compliance with the requirements of Sun Star’s bylaws.
The court concluded that, given these findings, Sun Star was entitled to judgment against the Fallettas quieting Sun Star’s title against them to the Property, and that it was entitled to judgment against Cathy Falletta restoring to Sun Star exclusive possession of the Property, ordering her to vacate the Property, and enjoining her from using any part of the Property.
On April 13, 2006, Sun Star moved to dismiss Cathy Falletta’s fourth amended complaint because it was untimely. On April 18, 2006, Sun Star moved for entry of judgment against Cathy on the fourth amended complaint pursuant to Code of Civil Procedure section 581, subdivision (f)(2) and then California Rules of Court, rule 325(e) and (f) (now rule 3.1320(g) and (h)). On May 16, 2006, the court granted both motions.
In the court’s May 16 supplemental statement of decision, the court held that, given the December 12, 2005 order dismissing Vincent Falletta’s action against all defendants directing entry of judgment for costs on the complaint in favor of Sun Star and against Vincent Falletta, and given the May 16, 2006 order dismissing Cathy Falletta’s fourth amended complaint and directing entry of judgment against her on the claims asserted by said complaint, Sun Star was entitled to a judgment that neither Vincent nor Cathy Falletta was entitled to any recovery from Sun Star. As prevailing party on the Fallettas’ complaint, Sun Star was entitled to recover costs as a matter of right under Code of Civil Procedure section 1032, subdivision (b). As prevailing party on its cross-complaint, Sun Star was awarded costs incurred thereon pursuant to Code of Civil Procedure section 1032, subdivision (a)(4).
After judgment in favor of Sun Star was entered, and the Fallettas’ motion for new trial was denied, the Fallettas filed a timely notice of appeal from the judgment. (A115387)
The court subsequently found that the action was on a contract which specifically provides that attorney fees incurred to enforce the contract shall be awarded to Sun Star; that Sun Star was the party prevailing on the action on the contract within the meaning of Civil Code section 1717 and Code of Civil Procedure sections 1032, subdivision (a)(4) and 1033.5, subdivision (a)(10)(A); that in becoming the prevailing party Sun Star incurred attorney fees of $326,101.42; and that the amount of fees was reasonable and necessarily performed in the action. It therefore awarded Sun Star attorney fees of $326,101.42, for which Vincent and Cathy Falletta were jointly and severally liable.
The Fallettas timely appealed the attorney fee order. (A117069.) The two appeals have been consolidated.
DISCUSSION
The Fallettas identify four issues for this consolidated appeal. We address them, and what appear to be subissues, as we construe them to have been framed by the Fallettas.
The Fallettas have taken a scattershot approach in their briefing, making it difficult to discern their precise claim of error and the facts and legal authority that demonstrate the error.
1.
Cathy Falletta asserts, in effect, that the court erred in finding that her expulsion from Sun Star was in accord with Sun Star’s constitution and bylaws because the expulsion was made by fewer members of the association than its constitution and bylaws mandate.
“The rights and duties of members of a private voluntary association, between themselves and in their relation to the association, are measured by the terms of the association’s constitution and bylaws.” (Berke v. TRI Realtors (1989) 208 Cal.App.3d 463, 466 (Berke), see also California Dental Assn. v. American Dental Assn. (1979) 23 Cal.3d 346, 353.) Courts will generally decline to exercise jurisdiction over disputes arising over an association member’s rights related to the association, in order to preserve the association’s autonomy and to avoid the “‘dismal swamp’” of construing a private organization’s rituals or obscure rules. (Berke, at p. 467.) Courts will “accept jurisdiction over private voluntary organizations when the aggrieved party can demonstrate an abuse of discretion and a clear, unreasonable, and arbitrary invasion of his or her private rights. [Citation.] ‘[W]hen a private voluntary organization plainly contravenes the terms of its bylaws, the issues of whether and to what extent judicial relief will be available depend on balancing (1) the interest in protecting the aggrieved party’s rights against (2) the infringement on the organization’s autonomy and the burdens on the courts that will result from judicial attempts to settle such internal disputes.’” (Id. at p. 467, quoting California Dental Assn. v. American Dental Assn., supra, 23 Cal.3d at p. 350.)
This balancing test comes into play only if the organization’s challenged action “‘plainly contravenes’” the organization’s bylaws. (Berke v. TRI Realtors, supra, 208 Cal.App.3d at p. 466.) The question here is whether Sun Star’s October 6, 2001 expulsion of Cathy Falletta by a vote of 12 regular members was in plain contravention of its bylaws because the vote did not consist of 2/3 of Sun Star’s October 2001 roster of 26 “regular” members.
Bylaw IV, governing expulsion of members, states that any club member “may be expelled by an affirmative vote of a majority of the club members for nonpayment of dues or any other indebtedness to the club or by an affirmative vote of 2/3 of the club for conduct which the members shall deem inimical to the best interest of the club.” Read in isolation, it appears to require a 2/3 vote of the entire membership. However, it cannot be read without reference to article V of Sun Star’s constitution, which states that the club is to be governed by all voting members “attending general or special membership meetings.” As article V does not refer to any number or percentage of members who shall be in attendance at a meeting in order to govern the club, it is reasonably read as a grant of authority to those members in attendance to make decisions on behalf of Sun Star, regardless of their number.
When a private organization’s internal dispute cannot be resolved without engaging in the interpretation and construction of several seemingly inconsistent provisions of the organization’s governing documents, courts should avoid interfering with the organization’s autonomy by imposing their “‘judicial judgment’” for the judgment of the organization in an area where the organization is more competent. (California Trial Lawyers Assn. v. Superior Court (1986) 187 Cal.App.3d 575, 579-581.) Here, there was undisputed testimony from Sun Star members who understood that expulsion did not require a 2/3 vote of the entire membership. David Baker, who has lived at Sun Star since 1982, testified that 12 of Sun Star’s then 29 regular members, i.e., less than a majority, attended the June 2000 meeting. The 12 members in attendance voted unanimously to expel 3 of the 29 members for nonpayment of debts, after two years of asking for payment.
Cathy Falletta was one of the 12 members present at the June 2000 meeting who voted for expulsion. She never questioned that the constitution or bylaws prohibited conducting the vote in such a manner, even though bylaw IV speaks of permitting expulsion for nonpayment of debt by a “majority of club members.”
Kelpie Wilson, who has been a member of Sun Star since 1994, testified that the October 6, 2001 decision to expel Cathy Falletta was based on the fact the 12 affirmative votes of the 14 members in attendance at the meeting constituted more than the requisite 2/3 of the members present at a properly noticed meeting.
Because the meaning attributed to bylaw IV by Sun Star is not unreasonable, arbitrary or plainly in contravention of its bylaws when read in conjunction with article V of Sun Star’s constitution and its prior history of expelling members (California Trial Lawyers Assn. v. Superior Court, supra, 187 Cal.App.3d at p. 581), the trial court did not err in finding that Cathy Falletta’s expulsion was in accord with Sun Star’s constitution and by-laws.
Cathy Falletta contends that the principles of the Davis-Stirling Common Interest Development Act (hereafter Davis-Stirling Act) (Civ. Code, § 1350 et seq.) apply to the construction of Sun Star’s constitution and bylaws, and the holding of Peak Investments v. South Peak Homeowners Assn., Inc. (2006) 140 Cal.App.4th 1363 (Peak Investments), controls. Cathy’s reliance is misplaced. The Davis-Stirling Act pertains to a “common interest development,” which the Act defines as a (1) community apartment project, (2) condominium project, (3) planned development, or (4) stock cooperative. (Civ. Code, § 1351, subd. (c).) Peak Investments concerns the construction of a provision within the Davis-Stirling Act (Civ. Code, § 1356) that pertains to the number of votes necessary to amend the covenants, conditions and restrictions (CC&Rs) governing a homeowners association of a planned community in which separate lots are purchased individually. (Peak Investments, at p. 1365.)
The Act defines “planned development” as a development having either or both (1) a common area owned by an association or in common with the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area; (2) a power exists in the association to enforce an obligation of an owner of a separate interest with respect to the beneficial use and enjoyment of the common area by means of an assessment. (Civ. Code, § 1351, subd. (k).)
The Davis-Stirling Act defines a “stock cooperative” is “a development in which a corporation is formed. . . .” (Civ. Code, § 1351, subd. (m), italics added.)
Sun Star is none of the four entities set forth in the Davis-Stirling Act. It is an unincorporated, nonprofit country club which owns a 160-acre parcel, and the people who reside on the parcel do not have an ownership interest therein. Consequently, neither the Davis-Stirling Act nor Peak Investments assists Cathy Falletta.
2.
The Fallettas’ next issue asks: “Is a provision in a residential association providing for summary expulsion and forfeiture unreasonable?” We construe this issue as applying to Cathy Falletta only, as it was she, not Vincent, who was expelled from and ordered to vacate the property, and is enjoined from using it. Given the Fallettas’ cited authorities, we further construe it as asserting that the court erred in finding that Sun Star’s grounds for expulsion were legitimate and supported by substantial evidence and that the expulsion procedure accorded Cathy was fair.
California courts early on established a common law right of fair procedure applicable to members of private associations. (See Potvin v. Metropolitan Life Ins. Co. (2000) 22 Cal.4th 1060, 1066-1071.) Because members of such private organizations stand to lose the privileges associated with membership, their right to fair procedure does not depend on the existence of any specific, vested property right. (Youngblood v. Wilcox (1989) 207 Cal.App.3d 1368, 1374.)
Taken together, the decisions establish that a person’s expulsion from membership in a private unincorporated association is deemed arbitrary and in violation of the common law right of fair procedure when the expulsion is substantively unreasonable, internally irregular, or procedurally unfair. (Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 720 (Curran).) Procedural fairness requires adequate notice of the charges and a reasonable opportunity to respond. An expulsion is substantively unreasonable when it is based on a rule that is substantively capricious or contrary to public policy. (Ibid.)
Courts use a two-step analysis in applying the common law protection against arbitrary expulsion. They first evaluate the procedure followed by the association to determine if the procedure is fair. They next determine whether the expulsion rests on a rule that is substantively capricious or contrary to public policy. (Curran, supra, 147 Cal.App.3d at pp. 720, 721.)
Procedural fairness requires adequate notice of the “charges” and a reasonable opportunity to respond. (Curran, supra, 147 Cal.App.3d at p. 720.) “‘The requirements of notice, hearing and a fair trial antecedent to expulsion are so fundamental that they are imposed upon an association . . . even though its own constitution, charter, or rules fail to make such provision. [Citations.]’” (Youngblood v. Wilcox, supra, 207 Cal.App.3d at p. 1375, quoting Swital v. Real Estate Commissioner (1953) 116 Cal.App.2d 677, 680.) However, procedural fairness “does not compel formal proceedings with all the embellishments of a court trial [citation], nor adherence to a single mode of process. It may be satisfied by any one of a variety of procedures which afford a fair opportunity for [a member] to present his position. As such [appellate courts] should not attempt to fix a rigid procedure that must invariably be observed.” (Pinsker v. Pacific Coast Society of Orthodontists (1974)12 Cal.3d 541, 555.)
Sun Star’s constitution and bylaws do not provide for an exact procedure to be followed when it is considering a member’s expulsion. Nevertheless, we conclude that Cathy Falletta was afforded a fair procedure prior to her expulsion, based on the undisputed evidence in the record. The association has four regular meetings per year, plus any special meetings as needed. All members receive notice of the meetings not less than 10 days before the meeting is scheduled and may attend and participate. They also receive the minutes of the meetings. From 1995 until 2001, Falletta’s dogs were an item on the agenda of at least half the meetings, and various votes were taken over this period as to how to deal with the dogs. There were several meetings at which the members discussed the possibility of expulsion as a last resort. At the June 2001 meeting, for which Cathy was secretary, there was an affirmative vote that Jazzmine must be permanently removed from the Property within 30 days. At the September 1, 2001 meeting there was an affirmative vote that Jazzmine met the criteria of an animal inimical to the best interests of the ranch, that it needed to be removed from the Property, and that the secretary (then Marilyn Houck Zieba) would notify Cathy of these findings and that she had seven days to remove Jazzmine permanently. Cathy was not at the meeting but she knew her teenage daughter, who lived with her, would be attending. Secretary Zieba notified Cathy of the actions taken at the September 1, 2001 meeting, but Cathy did not comply with the directive to remove Jazzmine within seven days.
The members, including Cathy Falletta, were notified by mail two weeks in advance that a special meeting was scheduled for October 3, 2001. The notification stated that the agenda for the meeting was an “[u]pdate on dog issue: Cathy Falletta has not complied with the Club decision that Jazzmine be removed from Sun Star by September 13th 2001, and her attorney has challenged the right of the Club to make this decision. This special meeting is called to inform members of the recent events and to discuss and vote on the expulsion of the Falletta membership.” The members were then notified by mail two weeks ahead of the scheduled October 3, 2001 date that the special meeting had been changed to October 6. Before the notices were mailed there had been a “phone call around” of the members to determine a date that could accommodate the greatest number of members.
We conclude the procedure by which Cathy was expelled was fundamentally fair. Because of Sun Star’s “town hall” style meetings, at which all members can voice their ideas and opinions, the notification to all members of the meetings’ agendas, and the distribution of the meetings’ minutes, she was fully aware of the members’ long-held concerns about her dogs and their deleterious effect on the Property. She was on notice of the members’ June 2001 decision that Jazzmine be removed within 30 days, and of their September 1, 2001 decision that Jazzmine be removed in 7 days. She was given specific notice that her expulsion was the subject of the October 6, 2001 meeting. Even if the reason for the possible expulsion was not specifically identified in the notice (the notice was admitted as an exhibit, but its exact contents are not in the appellate record), she had constructive notice, given the six-year history of the disputes about her dogs and her own knowledge that she had not complied with the association’s June and September 2001 directives. Again, given the town hall style of Sun Star’s meetings, she had a full opportunity at the October 6 meeting to “give her side of the story” and question the members why expulsion was necessary. She chose not to attend, and never presented evidence that she was unable to do so, or that she requested a different date. Sun Star did not violate Cathy’s common law right to fair procedure.
Nor was Sun Star’s bylaw on which Cathy Falletta’s expulsion was based substantively unreasonable. (Curran, supra, 147 Cal.App.3d at p. 720.) Appellants have not cited, nor are we aware, of decisions that set forth the criteria for determining whether a rule (or bylaw) of an unincorporated, nonprofit association like Sun Star that affects a member’s rights is substantively unreasonable. To make this determination, we find helpful the statutes and decisions applicable to members of nonprofit corporations. For example, in Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361 (Nahrstedt), the homeowners association of a condominium complex had a restriction against keeping cats, dogs, and other animals. (Id. at p. 367.) The governance of such a complex is set forth in the Davis-Stirling Act, described ante, Civil Code section 1354 of which provides, inter alia, that use restrictions of a common interest development are enforceable equitable servitudes unless “unreasonable.” (Civ. Code, § 1354, subd. (a).) The Supreme Court upheld a judgment against a condominium owner who sought declaratory relief preventing the homeowners association from enforcing the prohibition against keeping animals. Interpreting and applying section 1354, Nahrstedt held that such restrictions are presumed to be reasonable and will be enforced uniformly against all residents of the development unless the restriction is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction’s benefits to the development’s residents, or violates a fundamental public policy. (Nahrstedt, at p. 386.) The rationale for the deference to the restriction is to protect the general expectations of the condominium owners that the restrictions in place when they purchase their units will be enforceable. (Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249,. 264.) The restrictions are evaluated for reasonableness in light of the effect of the restriction the project as a whole, not from the perspective of the individual homeowner. (Nahrstedt, supra, 8 Cal.4th at p. 386.) Therefore, courts do not conduct a case-by-case analysis of the restriction to determine its effect on an individual homeowner; rather, they consider the reasonableness of the restriction by looking at the goals and concerns of the entire development. (Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 975.) The individual who challenges the restriction has the burden of demonstrating its unreasonableness. (Nahrstedt, supra, 8 Cal.4th at p. 386.)
Cathy Falletta has not, nor could she, demonstrate that Sun Star’s bylaw XIII, requiring the removal of dogs that are unsafe, vicious, a nuisance, etc., from the Property, is unreasonable. Certainly the members of Sun Star have a common interest that they, their families, and their visitors will not be at risk from attack or even fear from such dogs. Nor has Cathy demonstrated that bylaw IV, which provides that a member may be expelled for conduct the members “deem inimical to the best interest of the club” and which existed when she became a family member of Sun Star, is unreasonable. As stated in Sun Star’s constitution, its purposes include promoting “social intercourse among is members” and doing “all things necessary, expedient, or appropriate to the accomplishment of any of the objects and purposes for which this club is formed.” “Inimical” is commonly defined as “having the disposition of an enemy,” “being adverse, usually by reason of hostility or malevolence.” (Webster’s 9th New Collegiate Dict. (1989) p. 589.) It is reasonable that the members of the association like Sun Star would choose not to have a member whose behavior thwarts or is at odds with its purposes.
In what sounds like a “void for vagueness” constitutional challenge to a statute, Cathy Falletta argues that the “offense” of being “inimical to the best interest of the Club” is vague and undefined. Such an argument does not obtain under these circumstances. A statutes that “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” (Connally v. General Const. Co. (1925) 269 U.S. 385, 391.) Whether a statute, enacted for the public good through the auspices of a legislative body and chief executive officer elected by the public, is constitutionally vague is a different question from whether a bylaw, formulated by a private organization for the membership of that organization, is reasonable. “It is important to note that the legal duties imposed on [unincorporated associations] arise from the common law rather than from the Constitution as such. . . .” (Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at p. 550, fn. 7.)
Although her argument is not entirely clear, Cathy Falletta appears to argue her expulsion was arbitrary and a violation of her common law right to fair procedure because (a) there was no evidence that Jazzmine met the definitions of “potentially dangerous dog” or “vicious dog” in Food and Agricultural Code sections 31602 and 31603 ; (b) if Jazzmine was not vicious, Sun Star had no valid basis to vote for its removal from the Property; and (c) if there was no valid basis to remove Jazzmine, Cathy’s conduct in failing or refusing to do so was not inimical to Sun Star. So construed, Cathy’s argument is unavailing.
Food and Agricultural Code section 31602 defines “potentially dangerous dog” as: “(a) Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the owner or keeper of the dog; (b) Any dog which, when unprovoked, bites a person causing a less severe injury than as defined in Section 31604; (c) Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, has killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal off the property of the owner or keeper of the dog.”
First, there is no evidence that the membership intended “vicious,” as used in bylaw XIII, to have the meaning of these two statutes. Insofar as terms of a written instrument are presumed to have been used in their primary and generally accepted meaning (Code Civ. Proc., § 1861), a more reasonable conclusion is that the members intended the common dictionary meaning of vicious: dangerously aggressive, savage, marked by violence or ferocity, fierce. (See Webster’s 9th New Collegiate Dict. (1989) p. 1294.)
Second, even assuming the Sun Star members intended, when voting for bylaw XIII, that “vicious” has the same definition as the one in the Food and Agriculture Code, the language of bylaw XIII does not limit removal of “vicious” animals only. The membership can also vote to remove an animal that is unsafe, a nuisance, bothersome, or otherwise inimical to the Property.
Finally, Cathy Falletta relies on Malibou Lake Mountain Club, Ltd. v. Roberson (1963) 219 Cal.App.2d 181 (Malibou Lake) to argue that having “once owning a penned dog is certainly not a ground [for expulsion], especially after the dog is gone.” In Malibou Lake, a member of a corporation that owned mountain property surrounding a lake was expelled for misconduct unbecoming a member and inimical to the welfare of the club. Dissatisfied with the way activities of the club and corporation were being carried on, he instituted legal proceedings, ultimately unsuccessful, that looked toward a receivership of the corporation. (Id. at pp. 182-184.) Malibou Lake concluded that “the prosecution, in good faith, of a legal right for redress, even if unsuccessful,” did not constitute a legally adequate cause for expulsion from an organization like the club. (Id. at p. 186.) Malibou Lake is distinguishable. Although it did not use the phrase, the Malibou Lake court, in essence, concluded that the member had been expelled for a reason contrary to public policy. (See Curran, supra, 147 Cal.App.3d at p. 721.) That is the member’s exercise of his right to free speech and to petition for redress of grievances. No comparable public policy was implicated in the reason for Cathy’s expulsion.
III
Vincent Falletta contends the court erred in quieting title in 160 acres to Sun Star. He points to bylaw VIII, which states, “Each share owned by a member shall entitle that member to an undivided interest in one acre of Farm. Acre lots will be assigned on a first-come first serv[ed] basis.” He argues that when Sun Star conveyed 10 shares of Sun Star to him, it effectively conveyed to him an interest in an undivided 10 acres.
We conclude there was no error. First, there is no dispute that Sun Star holds record title to the 160-acre parcel by way of a grant deed. “A fee simple title is presumed to be intended to pass by a grant of real property, unless it appears from the grant that a lesser estate was intended.” (Civ. Code, § 1105.) The grant deed implies no such intent.
Second, as is required in an action for quiet title, Sun Star’s cross-complaint contained a legal description of the 160-acre parcel. (Code Civ. Proc., § 761.020, subd. (a).) By contrast, the documents on which Vincent Falletta bases his fee interest in 10 acres do not give a legal description of those acres. One document states that Sun Star, for a specified sum, “has granted, bargained, sold, transferred, set over and delivered” to the Vincent Falletta Trust six acres in Sun Star, “which includes an undivided interest in and to approximately [six] acres of that [160-acre parcel] known as Sun Star [which 160-acre parcel is then described]. [¶] Further provided that said six acres is contiguous to the approximately four acres owned by [Vincent Falletta Trust] which was recently acquired from [Varnedow and Sheehan] and included in the four shares of Sun Star Country Club sold to [Falletta Trust] by [Varnedoe and Sheehan.]” The document concerning the four acres is similarly worded.
To be sufficient to quiet title, the deed of conveyance transferring the property must contain a description of the property such that the land can be identified or located on the ground by use of the deed. (Edwards v. City of Santa Paula (1956) 138 Cal.App.2d 375, 380; see also Best v. Wohlford (1904) 144 Cal. 733, 735-736.) The documents which Vincent Falletta asserts convey title to him do not contain an adequate description of the property purportedly conveyed.
Third, these grants are inconsistent with Sun Star’s constitution and bylaws, which provide that the specific purpose of the Sun Star County Club is to buy the 160-acre parcel. The constitution and bylaws make plain that the members of the club do not buy acres within the 160-acre parcel from Sun Star or acquire fee title to the acres represented by their shares. Bylaw IIA provides that the members will buy shares in the club, with each share representing an acre. Bylaw IIID5 states that before a member’s sale or transfer of shares is approved, the buyer must “understand and fully accept that the purchase is of a membership and that no deed or title of record exits bearing any person’s name.” Bylaw V provides that, upon Sun Star’s dissolution, “all improvements are to be assessed by 2/3 of the membership . . . and those responsible for the improvement shall be paid. The remaining assets of the club shall then be divided up with each share entitling that member to a pro rata share of the assets.” The members receive the assessed value of their improvement; they do not receive the acre(s) on which they have been living or the assessed value of that acreage. Although bylaw VIII provides that each share owned by a member shall entitle that member to an undivided interest in one acre of the 160-acre parcel, nowhere do the bylaws or constitution specify the quantum of the undivided interest or a description of the acre in which the undivided interest adheres.
Because the deeds of conveyance of acreage to the Falletta Trust do not overcome the presumption of Sun Star’s title to the 160-acre parcel, the court did not err in quieting title to Sun Star.
IV
The Fallettas challenge the court’s sustaining the demurrer to the fourth amended complaint and its refusal to permit them to file a fifth amended complaint and a supplemental complaint.
A.
Cathy Falletta contends the court erred in sustaining the demurrer to the fourth amended complaint.
A demurrer tests the legal sufficiency of the complaint. An appellate court exercises its independent judgment as to whether the complaint states a cause of action as a matter of law. (Balikov v. Southern Cal. Gas Co. (2001) 94 Cal.App.4th 816, 819.)
The fourth amended complaint, brought in Cathy Falletta’s name only against Sun Star and its individual members, was for declaratory and injunctive relief and partition. It alleged generally that she had been assigned all right, title and interest of Vincent Falletta, as trustee of the Vincent J. Falletta Trust, to the 10 shares of Sun Star he had purchased in 1991, and that these shares entitled her to 10 specifically described acres of the Property. The complaint contained a legal description of the 10 acres she claimed to own in fee. Her cause of action for declaratory relief sought a declaration that she was owner in fee of the 10 acres and the residence thereon. Her cause of action for injunction alleged that Sun Star had threatened and continued to threaten her with physical expulsion from the “subject property,” which she defined as the 160-acre parcel, and with destruction of her residence before a determination of the instant action. These acts would cause her irreparable harm, because she would suffer loss of quiet enjoyment, be rendered homeless, and would be permanently deprived of her domicile, and she had no adequate legal remedy if the injunctive relief was denied. Her cause of action for partition requested that the “subject property” be divided by defendants Sun Star and its individually named members, whose interests would be materially affected by the partition action, to convey clear title to the 10 acres she “owned.”
The defendant “Members” demurred to the cause of action for declaratory relief on grounds of uncertainty: the caption and the allegations of this cause of action were directed to Sun Star only, but the prayer on the cause of action sought a declaration that the members and Sun Star had no right, title, or interest in the 10 acres. Sun Star and the members demurred to the causes of action for partition and injunction on the grounds that they failed to state a cause action.
The court sustained the demurrer with leave to amend.
Because the inconsistency between the substantive allegations in the cause of action for declaratory relief and the prayer therefor as to which defendants it was addressed, the demurrer thereto was properly sustained on grounds of uncertainty.
“Injunction is an equitable remedy available to a person aggrieved by certain torts or other wrongful acts, on a showing of the primary condition of equitable relief: inadequacy of the remedy at law.” (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 778, p. 235.) A “cause of action” for injunctive relief must show the tort or other wrongful act constituting the cause of action, i.e., the tort or other wrongful act pleaded in the manner required for the statement of a cause of action for any kind of relief based on that wrongful act. (5 Witkin, supra, Pleading, §§ 779, 781, pp. 236-238.) Because Cathy’s cause of action for “injunctive relief” did not contain the requisite allegations of such a tort or wrongful act, the demurrer was properly sustained.
“Under California law, the term ‘partition’ signifies ‘the procedure for segregating and terminating common interests in the same parcel of property.’ [Citations.]” (14859 Moorpark Homeowner’s Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1404-1405.) There is no change of title between the tenants in common in a partition; the partition simply divides up what the parties already own. (Id. at p. 1405.) A cause of action for partition determines the interests in real property. (See Code Civ. Proc., § 872.010 et seq.) The complaint must set forth a description of the property that is the subject of the action; all interests the plaintiff has or claims in the property; all interests of record or actually known to the plaintiff that other persons have or claim in the property and that the plaintiff reasonably believes will be materially affected by the action; the estate as to which partition is sought; and a prayer for partition of the interests. (Code Civ. Proc. § 872.230.) The plaintiff who brings the partition action must own an estate in real property which is concurrently owned by several people. (Code Civ. Proc., § 872.210, subd. (a)(2).)
The fourth amended complaint fails to state an action for partition because it does not allege that Cathy Falletta and Sun Star and its members are the co-owners of a single piece of property. She alleges that she owns “all right, title and interest,” as assignee of the interest of the Vincent Falletta Trust, to the “subject property,” which her complaint alleges is the 160-acre parcel. On the other hand, she alleged that the defendant members of Sun Star hold undivided interests in the “subject property” in various shares and percentages. She also alleged that she “owned” the 10 specific acres that correspond to the 10 shares the Falletta Trust purchased in 1991 and conveyed to her, and that the Sun Star defendants should be ordered to divide the “subject property” to convey clear title to her in these 10 acres. Because the complaint lacks a clear allegation of the critical element of the parties’ common ownership of the property in question, the demurrer was properly sustained.
By sustaining with leave to amend, the court impliedly concluded there was a reasonable possibility that the defects in the fourth amended complaint could be cured by amendment. When a plaintiff elects not to amend, it is presumed that the complaint states as strong a case as possible, and the judgment of dismissal will be affirmed if the unamended complaint is objectionable on any ground raised by the demurrer. (Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.) As we discuss post, Cathy Falletta failed to file an amended or supplemental pleading within the time specified in the court’s ruling sustaining the demurrer. Given our conclusion that the demurrer was properly sustained, we affirm the judgment.
In any case, Cathy Falletta’s claim of error that the demurrer should not have been sustained is now moot in light of our conclusion, discussed ante, that the court did not err in quieting title to the 160-acre parcel in Sun Star. Cathy asserts, by way of assignment, the same interest in the property that Vincent Falletta allegedly obtained when he purchased the 10 shares in 1991. By quieting title as against Vincent Falletta, title is necessarily quieted as against Cathy.
B.
Cathy Falletta contends she was entitled to proceed on her fifth amended complaint. The order sustaining the demurrer to the fourth amended complaint was filed December 12, 2005. On Friday, December 30, 2005, the Fallettas served a fifth amended complaint and a proposed supplemental complaint on opposing counsel by express mail from Los Angeles County. Vincent Falletta, as trustee of the Vincent Falletta Trust, and Cathy were both named plaintiffs in the fifth amended complaint, but the allegations were in Vincent’s name only. The allegations in the proposed supplemental complaint were made by Cathy only. On Tuesday, January 3, 2006, the Del Norte court “received” but did not file these two pleadings.
Because New Year’s Day fell on a Sunday in 2006, Monday, January 2, was a holiday.
On January 18, 2006, Cathy Falletta moved for leave to file her proposed fifth amended complaint that was lodged with the court on January 3. In support of her motion her attorney, whose office is in San Marino, declared: On December 30, 2005, he served the proposed fifth amended complaint by overnight mail. He subsequently realized that it should have been filed no later than December 27, 2005. Not only did he miscalculate the time, he was on vacation in Utah at Christmas and into the week following, and his secretary was on vacation in Sacramento. He also understood that opposing counsel were not in their offices during that week. On Tuesday, January 10, 2006, the court instructed Cathy to seek leave to file her proposed fifth amended complaint and to discuss a stipulation with opposing counsel. He informed opposing attorney Ronald Barkin that he would telephone Barkin on Wednesday. Barkin replied he was busy and would call on Thursday, but did not. Sun Star’s other attorney, Candice Stoddard, telephoned him on Friday, January 13, but he was in court. She was gone when he returned her call.
On January 30, 2006, the court first denied the motion to file the fifth amended complaint primarily because it asserted causes of action on behalf of Vincent Falletta, whose complaint had previously been dismissed. It denied the motion to file the supplemental complaint because it proposed to supplement the fifth amended complaint, which the court had refused to file.
An order denying leave to amend a complaint or to file a tardy amended complaint is reviewed under the abuse of discretion standard. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612; Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) We find no abuse. After the demurrer to the fourth amended complaint, brought in Cathy Falletta’s name only, was sustained on December 12, 2005 with leave to amend, she had until Wednesday, December 22 to file an amended complaint. Not only was the fifth amended complaint--which was the fifth attempt of the Fallettas singly or collectively to present a viable complaint--tardy, its allegations were in the name of Vincent Falletta who had been dismissed from the action. The supplemental petition alleged only that Vincent Falletta had assigned all his rights, title, and interest in Sun Star to Cathy. It otherwise incorporated by reference the allegations of the fifth amended complaint, which was not permitted to be filed. In short, there was nothing for the “supplemental petition” to supplement.
Following a ruling on a demurrer, leave to amend within 10 days is deemed granted, unless the court orders otherwise. (Cal. Rules of Court, rule 3.1320(g).) The time for which any act provided for in the rules of court is to be performed is computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or legal holiday. (Cal. Rules of Court, rule 1.10(a).)
Cathy Falletta, in essence, argues the refusal to allow the late filings was an abuse of discretion because her attorney presented a reasonable excuse for their tardiness, and there was no prejudice to defendants. As recited, ante, the court did not deny the motions on this basis. In any case, it would not have abused its discretion if it had. The Fallettas filed their original complaint in October 2001 and had been given several opportunities to present a viable complaint. The trial court could reasonably conclude that if the fifth attempt, four years later, was untimely, they had exhausted their chances to cure the defects and any further delay would prejudice Sun Star.
V
Vincent Falletta contends that because he prevailed on all causes of action in Sun Star’s cross-complaint other than the action for quiet title, the court erred in denying him fees and costs on the cross-complaint. Alternatively, the Fallettas contend the amount of the attorney fee award is unreasonable and excessive.
Initially the Fallettas argue that Sun Star is not entitled to attorney fees because the record contains no motion for such fees.
On December 12, 2005, the court granted Sun Star’s motion for an order dismissing Vincent Falletta’s action against all defendants. It also ordered that as soon as one final judgment adjudicating all claims asserted between Vincent Falletta and all defendants/cross-complainants could be appropriately entered, it would enter a judgment effectuating the December 12, 2005 order.
On December 14, 2005, Sun Star moved for an order determining that it was the party prevailing on a contract entitling it to an award of attorney fees and fixing the amount. It also served a memorandum of costs. Neither document is in the record. On December 27, 2005, the Fallettas filed their opposition to Sun Star’s motion for attorney fees. On December 30, 2005, the Fallettas moved for an order striking certain of the memorandum of costs.
At some later date, Sun Star replied to the Fallettas’ opposition to its motion for attorney fees. Its reply is not in the appellate record.
On January 19, 2006, the court, without prejudice to the parties to renew their motions, deferred consideration of these motions until after it determined all aspects of the case on the merits.
On January 30, 2006, the court continued hearing on the Fallettas’ motion to strike costs until the time of the deferred hearing on Sun Star’s motion for attorney fees.
On April 13, 2006, the court notified the parties that on May 16, 2006 it would conduct a hearing on Sun Star’s December 14, 2005 motion for attorney fees and the Fallettas’ December 30, 2005 opposition to Sun Star’s memorandum of costs.
On April 18, 2006, Sun Star moved to amend its motion for attorney fees to include Cathy Falletta as a party plaintiff against whom it was entitled to an award of fees. In support of the motion Sun Star’s attorney declared that Sun Star was the prevailing party on a contract under Civil Code section 1717 and was entitled to an award of fees as an item of costs against Cathy and Vincent Falletta based on Sun Star’s bylaw III, as amended in 1995. It states: “Any member of the Club who brings a lawsuit against the Club in which any cause of action is for breach of contract or partition or rescission, or which in any way challenges the Club’s right to exist, or the Club’s Bylaws, or the Club’s interpretation thereof, and who loses said lawsuit, shall be responsible and liable for all attorney’s fees and costs incurred by the Club in defending such action.”
On May 3, 2006, Cathy Falletta filed opposition to Sun Star’s April 18 motion, and on May 9 Sun Star filed its reply brief.
On May 16, 2006, the court filed a supplemental statement of decision. It stated that it was not giving attention “at this time” to Sun Star’s December 14, 2005 motion for attorney fees. It further stated that it expected that a noticed motion for such relief would be made to such claims after entry of judgment, pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5) and California Rules of Court, rule 870.2(b). It made a similar statement regarding the Fallettas’ December 30, 2005 request for an order striking Sun Star’s memorandum of costs.
Judgment was entered on July 19, 2006.
On August 2, 2006, Sun Star submitted a memorandum of costs of $10,404.19. On August 21, 2006, the Fallettas moved to strike certain of these costs.
On September 20, 2006, the court denied the Fallettas’ motion to strike costs and their motion for new trial.
At a January 8, 2007 hearing, the court announced that the hearing was on Sun Star’s motion for attorney fees that was filed September 15, 2006. The motion is not in the appellate record. Counsel for Sun Star informed the court the motion was unopposed. Counsel for the Fallettas acknowledged that Sun Star’s September 15, 2006 motion contained some costs incurred since January 2006, but the Fallettas’ legal argument concerning Sun Star’s entitlement to fees “remains the same” as put forth in their previous opposition of the previous year, i.e., the December 30, 2005 opposition. Consequently, they did not refile their opposition.
On January 25, the court, “in disposition” of Sun Star’s September 16, 2006 motion for an award of attorney fees, ordered that Sun Star was awarded attorney fees of $326,101.42, and that the award was against “plaintiffs” Vincent and Cathy Falletta, who were jointly and severally liable for the award. It based its order on its findings that: (1) the action was on a contract specifically providing for attorney fees; (2) Sun Star was the prevailing party on the contract; (3) in becoming the prevailing party, Sun Star incurred fees of $326,101.42; and (4) those fees were reasonable and necessarily performed.
The Fallettas argue that because the appellate record does not contain either the December 14, 2005 or the September 15, 2006 motions of Sun Star for attorney fees, “as a matter of law, no motion for attorney’s fees was made.” The short answer is that it is the duty of the appellant to prepare an adequate record for appeal. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) It is obvious from the record before us that these two motions were filed, and the Fallettas do not dispute this. On a silent record, the appellate court presumes all reasonable facts and inferences in support of the judgment or appealable order. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1793.) If the Fallettas wished to challenge the trial court’s award of attorney fees, it was their responsibility to provide a record that would demonstrate the error.
Vincent Falletta contends Sun Star is not entitled to attorney fees because there was no bylaw for attorney fees in 1991 when he bought his 10 shares, and the 1995 bylaw adding the attorney fee provision was never correctly adopted. He argues that bylaw VI requires 10-day notice to members of a special meeting, he never received notice of the December 14, 1995 meeting at which the provision was adopted, and neither he nor Cathy Falletta were present. However, there is no dispute that Cathy had instructed Sun Star that she was the “acting member” and was the one to receive notices, and that all notices were sent to her.
Vincent Falletta argues that he voluntarily dismissed his action before trial, and therefore Sun Star may not recover fees under Civil Code section 1717. On October 13, 2005, Sun Star moved to dismiss the action brought by Vincent Falletta, for his failure to file an undertaking and for his failure to amend his complaint after Sun Star’s motion to strike his third amended complaint was granted with leave to amend. On November 22, 2005, Vincent Falletta filed a “request for dismissal” without prejudice. His dismissal was filed by a deputy clerk the same day. In its December 1, 2005 reply brief, Sun Star argued that his request for voluntary dismissal was too late. It analogized to the rule governing demurrers, which state that a plaintiff may not voluntarily dismiss an action when a general demurrer has been sustained with leave to amend and he or she does not amend within the allowable time. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 789.)
Thereafter, on December 12, 2005, the court issued an order granting Sun Star’s motion to dismiss Vincent Falletta’s action.
Given this history, Vincent Falletta cannot assert a true voluntary dismissal.
Vincent Falletta argues Sun Star was not the prevailing party as to him because he obtained the greater relief on Sun Star’s cross-complaint. Therefore, he argues, Sun Star cannot be deemed the party “who recovered a greater relief in the action on the contract.” (Civ. Code, § 1717, subd. (b)(2).) The court, in its discretion, could deem Sun Star the prevailing party insofar as Vincent Falletta recovered nothing on his complaint. (See Harvard Investment Co. v. Gap Stores, Inc. (1984) 156 Cal.App.3d 704, 715, fn. 8.)
Cathy Falletta argues she is not liable for attorney fees because she is a family member, not a regular member, and she did not execute any documents agreeing to be bound by the bylaw providing for attorney fees. Bylaw IIIF does not distinguish between regular and family members. Furthermore, Cathy is a third party beneficiary of the bylaws, which are a contract between Sun Star and its shareholders (Casady v. Modern Metal Etc. Mfg. Co. (1961) 188 Cal.App.2d 728, 732-733), insofar as her father purchased the shares so that she could live on the Property.
Because the motions for attorney fees are not in the record, the Fallettas have not provided an adequate record to demonstrate that the fees are unreasonable. (Ballard v. Uribe, supra, 41 Cal.3d at p. 574.)
DISPOSITION
The judgment and the order awarding attorney fees are affirmed.
We concur: Simons, J., Needham, J.
“Separate interest” in a planned development is a “separately owned lot, parcel, area, or space.” (Civ. Code, § 1351, subd. (l)(3).)
Section 31603 defines “vicious dog” as, inter alia, any dog seized under Penal Code section 599aa [animal used for fighting] any dog which, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being, or any dog previously determined to be and currently listed as a potentially dangerous dog which, after its owner or keeper has been notified of this determination, continues the behavior described in section 31602.