On appeal the Tavangarians and 619 Properties argue neither paragraph 1 nor paragraph 11 of the CC&R's restricts alterations to an existing residence; the Eisens waived or are estopped from seeking relief with respect to several claims in their lawsuit; injunctive relief was improperly awarded in view of the adequacy of the Eisens' legal remedy and the balance of equities; and the court erred in excluding relevant evidence and denying a request for leave to amend their answer. In
We reverse the judgment with directions.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Parties
The Eisens purchased the real property located at 1145 Lachman Lane in the Marquez Knolls area of Pacific Palisades in August 2009. The Tavangarians, as trustees of the Tavangarian Revocable Trust dated 2002, purchased the real property at 1134 Lachman Lane in October 2012 for the purpose of remodel and resale.
Lachman Lane generally runs north-south. The Tavangarian property is across the street, to the southeast of the Eisen property. Both homes have ocean views to the south. However, based on two site inspections, the trial
2. The CC&R's Governing Lots in Marquez Knolls Tract 20305
Homes in the Marquez Knolls area were originally constructed as 2,200-to-2,500-square-foot tract houses with common architectural and design features. The Eisen and Tavangarian properties are located in tract 20305 and are subject to CC&R's recorded for that tract on May 4, 1962. Four of the CC&R's-paragraphs 1, 2, 3 and 11-are particularly significant to the case at bar.
Paragraph 1 of the CC&R's provides:
"All said lots shall be known and described as residential lots, no structure shall be erected, altered, placed or permitted to remain on any building plot other than one detached single-family dwelling not to exceed one story in height and a private garage, for not more than three cars; except; where, in the judgement [sic ] of the Declarant [ (Marquez Knolls Inc.)2 ] and approved by the Architectural Committee, one two story single-family dwelling may be erected where said dwelling will not detract from the view of any other lot."
Paragraph 2 provides in part:
"No building shall be erected, placed or altered on any building plot in this subdivision until the building plans, specifications, and plot plan showing the location of such building have been approved in writing as to the conformity and harmony of exterior design with existing structures in the subdivision, and as to location of the building with respect to topography and finished ground elevation by an Architectural Committee .... In the event the said committee fails to approve or disapprove a design and location within thirty (30) days after said plans and specifications have been submitted to it, or in any event, if no suit to enjoin the erection of said such building or making of anyalterations have [sic ] been commenced prior to the completion thereof, such approval will not be required and this covenant will be deemed to have been fully complied with.... The power and duties of such committee shall cease on or after December 31, 1966. Thereafter, the power and duties described in this covenant shall pass to the Marquez Knolls Property Owner's Association, Inc., a California corporation, who shall thereafter exercise the same powers previously exercised by said committee until December 31, 1980 at such time the powers and duties exercised by said Association shall cease and determine."
"No building shall be located on any lot nearer than fifteen (15) feet to the front lot line. No building, except a detached garage or other outbuilding located sixty (60) feet from the front lot line, shall be located nearer than five (5) feet to any side line. No residence or attached appurtenance shall be erected on any lot nearer than fifteen (15) feet from the front lot line except where the county or city permits and with specific authority of the architectural committee."
Paragraph 11 provides:
"No fences or hedges exceeding three feet in height shall be erected or permitted to remain between the street and the front set-back line nor shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future obstruct the view from any other lot, and the right of entry is reserved by the Declarants to trim any tree obstructing the view of any lot."
3. The Tavangarians' Remodel of Their Home
When the Tavangarians purchased 1134 Lachman Lane, the house had an L-shaped design. The rectangular portion lying east-west had two stories and was located at the north end of, and perpendicular to, the one-story portion of the house that ran north-south at the western end of the east-west segment. The Eisens and the Tavangarians agree the architectural committee had approved the two-story residence at the time it was built, as required by paragraphs 1 and 2 of the CC&R's.
Starting in approximately April 2013 Mr. Tavangarian began remodeling the residence. He replaced an old rooftop air-conditioning unit with new air-conditioning units, ducts, fences and related modifications on the first-and second-story roofs. The second story's western wall was extended to the south by more than five feet (referred to as a "privacy wall"), and its south-facing wall was extended to the south by more than four feet. In addition, the original roof of the second story was extended by cantilevering it out to the south by eight feet, so that it was coextensive with the new privacy wall. Tavangarian also built a three-sided glass wall enclosure that extended a second-floor bathroom several feet to the south; and he extended the east-facing side of the second story by approximately two feet, from which he built a deck with a cantilevered roof covering it. Finally, existing hedges along the border of the property at Lachman Lane were removed and replaced. The new hedges were permitted to grow more than three feet above the ground.
By the end of September 2013 the project was nearing completion, and the air-conditioning equipment was in place.
The Eisens sued the Tavangarians on September 13, 2013, alleging the remodeling being done at the Tavangarians' property violated paragraphs 1 and 11 of the
The Eisens filed a first amended complaint in February 2014 and a second amended complaint in June 2014, which added 1134 Lachman Lane's new owner, 619 Properties, as a defendant. Neither amended version of the pleading specifically addressed the privacy wall, the cantilevered roof or the glass enclosure that was being constructed at the property. However, in a trial brief filed in August 2015 and subsequent papers filed by the Eisens during the bench trial, these items were raised as additional violations of paragraphs 1 and 11 of the CC&R's.
5. Trial and the Trial Court's Decision
The Eisens' lawsuit was tried to the court in late 2015 and early 2016. In addition to oral and documentary evidence, the court made two site visits to the Eisens' and Tavangarians' properties in February 2016. The court filed its statement of decision on June 23, 2016.
After finding that the tract 20305 CC&R's were binding and sufficiently certain to allow specific performance and damages, the court explained that all parties had agreed for purposes of trial that this court's decision in Zabrucky v. McAdams (2005)
Quoting from paragraph 1 of the CC&R's, which permitted erection of a two-story residence if approved by Marquez Knolls Inc. and the architectural committee "where said dwelling will not detract from the view of any other lot," the court identified four possible interpretations of the CC&R's impact on two-story residences in light of the fact the architectural committee no longer existed and the delegation of its power to the property
The court adopted interpretation 3 without adding "unreasonably": "[T]he Court finds as to the legal significance of Paragraph 1 that it only prohibits expansion of the Declarant and Architectural Committee's approved envelope of the second story structure where said expansion would not detract from the view from any other lot." The court explained that interpretation 2, advocated by the Eisens, while reasonable, would preclude any construction of a two-story home where a one-story residence currently existed, even if the construction or remodeling would not detract from the view from any other lot. The policy favoring free use of land weighed against that restrictive interpretation. To adopt interpretation 4, the court reasoned, would require it to find that paragraph 1 no longer applied to homes in tract 20305 in the absence of an architectural review committee. The court concluded the intent of the drafters of the CC&R's was to provide greater view protection from two-story homes than from one-story residences, as evidenced by the use of "detract" in paragraph 1 but "obstruct" in paragraph 11; and it "sees no
Applying its interpretation of the CC&R's to the questions whether the Tavangarians' first-story improvements "unreasonably obstruct" the views from the Eisens' property and whether the second-story improvements "detract" from the Eisens' views, the court found most of the remodeling violated the CC&R's. Specifically, the court found the privacy wall and the cantilevered roof on the south-facing side of the residence detracted from the Eisens' view in violation of paragraph 1 and also unreasonably obstructed their view in violation of paragraph 11. Both were ordered removed. The court retained jurisdiction to address the removal or modification of the second-floor bathroom glass wall extension; it explained that extension might detract from the Eisens' view once the privacy wall and cantilevered roof were removed, but the court was not yet able to make that determination.
With respect to the air-conditioning ducts and related equipment, the court
Finally, the court found the hedges planted by the Tavangarians violated paragraph 11 of the CC&R's, rejecting the contention the Eisens had agreed to allow the hedges to grow to the roof line of the property or had waived their right to enforce the three-foot height limit on hedges in paragraph 11. The court also awarded $ 39,000 as interim damages for loss of view for the period from the filing of the lawsuit until the last day of trial.
In finding in favor of the Eisens, the court rejected the Tavangarians' affirmative defenses of waiver and estoppel, predicated on the Eisens' delay in objecting to anything other than the new air-conditioning units and related equipment, noting that the Eisens had filed their lawsuit challenging the remodeling of the Tavangarians' home within a matter of months of the beginning of construction. Because the Tavangarians had not discussed their remodeling plans with the Eisens, the court found it reasonable that the Eisens were unable to determine from wooden framing placed during the summer of 2013 how extensive the view intrusion would be. In addition, with
On August 9, 2016 the court entered its judgment and injunction after bench trial, retaining its jurisdiction, as described in the statement of decision, to enforce the injunction, including resolution of any disputes that might arise under it.
DISCUSSION
1. Standard of Review
"CC&R's are interpreted according to the usual rules of interpretation of contracts generally, with a view toward enforcing the reasonable intent of the parties. [Citations.] Where, as here, the trial court's interpretation of the CC&R's does not turn on the credibility of extrinsic evidence, we independently interpret the meaning of the written instrument." ( Harvey v. The Landing Homeowners Assn. (2008)
Under California law a landowner has no right to an unobstructed view over adjoining property, and " 'the law is reluctant to imply such a right.' " ( Boxer v. City of Beverly Hills (2016)
2. The Propriety of Revisiting Zabrucky
The trial court grounded its interpretation of the CC&R's potentially applicable to the Tavangarians' renovations of the house at 1134 Lachman Lane on this court's divided decision in Zabrucky , supra ,
The Tavangarians agreed Zabrucky 's interpretation of paragraph 11 was binding on the trial court, but argue on appeal we should adopt the reasoning of the Zabrucky dissent and hold that, unlike paragraph 2 of the CC&R's, paragraph 11 does not restrict renovating or altering existing residences. (See Zabrucky , supra , 129 Cal.App.4th at pp. 630-634,
The Eisens insist the Tavangarians have waived any right to argue on appeal that Zabrucky was incorrectly decided through their "judicial admission" in the trial court that the term "structure" in paragraph 11 of the
Moreover, as the Tavangarians emphasize, it would have been pointless to challenge that interpretation at trial. (See Cedars-Sinai Medical Center v. Superior Court (1998)
3. Neither Paragraph 1 Nor Paragraph 11 of the CC&R's Restricts Renovations or Alterations to a Previously Approved Residence; Paragraph 2, Which Did Apply to Residential Alterations, Has Long Since Expired
In light of the principle that, if possible, we must read the CC&R's as a
a. Paragraph 1 of the CC&R's controlled the basic size of homes in tract 20305 and did not regulate renovations or remodeling
Paragraph 1 restricted development in tract 20305 to single-family homes and specified that all such homes were to be one story in height except, with the approval of Marquez Knolls Inc. and the architectural committee, "one two story single-family dwelling may be erected where said dwelling will not detract from the view of any other lot." While the paragraph's basic one-story limit applied whether a residence was "erected, altered, placed or permitted to
As stated, initial construction of a two-story residence could only be approved if, in the judgment of Marquez Knolls Inc. and the architectural committee, it would "not detract from the view of any other lot."
The Eisens, however, argue that paragraph 1's reference to erecting a second-story residence, but not to altering it, means, once approved, the second story of a home may not thereafter be modified in any way that enlarges its contour or silhouette. That contention contravenes two fundamental principles of construction that guide our resolution of this case. First, as discussed, if there is more than one reasonable interpretation of a restrictive covenant, it is to be construed against the individual seeking to enforce it and in favor of the free use of land. (See Chee v. Amanda Goldt Property Management , supra ,
We reject for similar reasons the trial court's interpretation of paragraph 1 as prohibiting any remodeling of the previously approved second story of a residence unless the alterations did not detract from the view of any other lot. Whether or not paragraph 1 prohibits a homeowner from adding a story to a one-story home or to a previously approved two-story home, an issue the parties agree we need not decide, that paragraph does not address the permissible scope of other renovations or improvements to one-story or previously approved two-story residences. Whatever restrictions might apply to remodeling those homes after they had been approved and constructed were to be found, if at all, elsewhere in the CC&R's.
b. Approval for renovations and alterations specified in paragraph 2 was no longer required after December 31, 1980
There can be no question that the plan-approval requirements of paragraph 2, which regulates both initial construction and renovations of residential dwellings in tract 20305 (that is, both "the erection of said such building" and "making of any alterations" to them) would apply to the Tavangarians' remodeling project if that provision were still in effect. All parties agree, as did the trial court, that paragraph 2's December 31, 1980 sunset provision means that covenant is no longer enforceable. But they disagree as to the consequences of the elimination of the architectural
The Eisens, who elsewhere insist paragraph 1 strictly prohibits any alterations to an originally approved second story, when attempting to reconcile the limited tenure of the architectural committee with their absolutist position on view protection, paradoxically contend that Marquez Knolls Inc. and the architectural committee could authorize renovations or alterations to a second story-what they term an exception to paragraph 1's prohibition. Once those entities ceased to exist, they assert, there was no longer any possibility of obtaining such an exception. Hence, no alterations of the Tavangarians' second story was permissible.
Both the majority and dissenting opinions in Zabrucky , supra ,
This interpretation of the effect of the sunset provision in paragraph 2 is reinforced by a review of the CC&R's for two neighboring tracts in Marquez Knolls, which the Eisens have provided this court and invited us to use as interpretative aids.
Apparently deciding it was worthwhile to continue for a longer period the plan-approval precondition to alterations or renovations to existing residences, Marquez Knolls Inc. revised paragraph 2 in the 1962 tract 20305 CC&R's at issue in this case by extending the life of the architectural committee by one year and providing for transfer of the committee's authority to the property owners association for a period of 14 years, rather than leaving to the subdivision's homeowners the decision whether to create a new entity with approval authority. By the following year, in the CC&R's for tract 26065 (the Zabrucky CC&R's), the life of the architectural committee was extended by more than a dozen years (to December 31, 1980), and the transfer of authority to the association lasted an additional 15 years. Nowhere do these revised CC&R's, with extended periods for approval of plans and specifications for alterations and renovations to existing residences, indicate an intent to prohibit remodeling a residence's first or second story after the applicable sunset period. No such reading of the CC&R's before us would be reasonable. (See Costa Serena Owners Coalition v. Costa Serena Architectural Com. (2009)
c. Paragraph 11 does not restrict renovating or altering existing residences
The foregoing analysis leads directly to the question we previously considered in Zabrucky , supra ,
The Zabrucky majority misread paragraph 11. It is certainly true that the common meaning of the word "structure," considered without regard to context, includes a house and that adding rooms to a residence or expanding existing ones could be described as erecting a structure. But context and usage matter. (See White , supra ,
For purposes of properly understanding the scope of the view protections in paragraph 11, paragraph 3, mentioned only in passing in Zabrucky , provides a necessary backdrop. That paragraph established a general front setback minimum for any "building" and then separately specified front and side setback limits for the "residence" and for "a detached garage or other outbuilding." That is, paragraph 3 expressly contemplated homeowners in Marquez Knolls might construct not only their residence with a detached garage, as authorized by paragraph 1, but also "outbuildings": " '[a] small building appurtenant to a main building and generally separated from it; e.g. outhouse, storage shed.' " ( People v. Smith (1994)
Recognizing that outbuildings, as well as residences, might be built on lots within tract 20305 gives meaning to the word choices reflected in paragraphs 1, 2 and 11 of the CC&R's. As discussed, when mandating a general one-story height limit, paragraph 1 refers to dwellings that are both "erected" and "altered." Similarly, paragraph 2 in requiring architectural committee approval of building plans expressly applies to "erection of said building or making any alterations." Yet paragraph 11 restricts only erecting a structure, not making alterations to one. While that language would unquestionably apply to construction of a greenhouse, storage shed or other form of outbuilding, omission in this paragraph of the word "alter" indicates that covenant does not apply to renovations or remodeling of the homeowner's residence.
Indeed, when advocating for their restrictive interpretation of paragraph 1, the Eisens have recognized the significance of Marquez Knolls Inc.'s decision to use only the verb "erect" and not also "alter" when
This more limited reading of "structures" in paragraph 11 is supported by the rule of construction known by its Latin name noscitur a sociis : "Under the rule of noscitur a sociis , ' "the meaning of a word may be enlarged or restrained by reference to the object of the whole clause in which it is used." ' " ( Dyna-Med , Inc. v. Fair Employment & Housing Com. (1987)
Additionally, any interpretation of the scope of paragraph 11's restrictions on "structures" must necessarily be influenced by the paragraph's relationship to the document as a whole. (See Ezer v. Fuchsloch , supra , 99 Cal.App.3d at pp. 861-862,
A similar question of the relationship of a paragraph in the CC&R's that governed construction, erection or alteration of a "building, structure or improvement" (paragraph III), and thus unambiguously applied to the residence, and a separate paragraph that prohibited planting or erecting any "hedge or hedgerow, or wall or fence or other structure ... in such
The original 1957 CC&R's for Marquez Knoll tract 20179 and the subsequent amendment to paragraph 12, submitted by the Eisens as interpretative aids, do not suggest a different result. Originally paragraph 12 read, "No fences or hedges exceeding three feet in height shall be erected or permitted to remain between the street and the front set-back line." That paragraph was amended eight weeks later to read, "No fences or hedges exceeding three feet in height shall be erected or permitted to remain between the street and the front set-back line nor shall any tree, shrub, or other landscaping be planted or constructed that may at present or in the future obstruct the view from any other lot in this tract." The Eisens point out that the language "or other landscaping be planted or constructed that may ..." in the amended tract 20179 CC&R's was modified by 1962 in paragraph 11 of the tract 20305 CC&R's at issue in this case to read, "or other landscaping be planted or any structures erected that may ...."
4. The Portion of the Judgment Requiring the Street-facing Hedges To Be Trimmed to a Height of Three Feet or Under Is Affirmed
The Tavangarians neither dispute that paragraph 11 limits to a height of
In support of their argument the Tavangarians introduced a photograph taken in August 2013 and Google images from 2012 showing the height of hedges above the house's roofline, arguing the Eisens' inaction constituted a waiver. Alternatively, the Tavangarians contend they detrimentally relied on the fact that the hedges had historically exceeded three feet when they replaced the existing hedges with new ones.
Mr. Eisen, on the other hand, testified he could see over the hedges (that is, they had not grown past the roofline) when he and his wife purchased their home in 2009. He also testified that, before the Tavangarians purchased their home in October 2012, the hedges had been trimmed periodically, so they did not grow as high as those in a photograph depicting the new hedges planted by the Tavangarians, and did not block the Eisens' view.
The party seeking to establish an affirmative defense of waiver or estoppel bears the burden of proof. (See Waller v. Truck Ins. Exchange , Inc. (1995)
To be sure, as the Tavangarians argue, and the trial court observed, hedges at roof height could not obstruct the Eisens' view and would likely enhance, rather than detract from, the overall appearance of the remodeled residence at 1134 Lachman Lane. Nonetheless, for whatever reason, the Eisens have insisted on strict compliance with paragraph 11 of the CC&R's, which sets an absolute height limit for hedges. They are entitled to do so.
Based on the testimony of the Eisens' appraisal expert, Kenneth Kirschner, the trial court awarded the Eisens $ 39,000 for the reduction in the monthly rental value of their own home between September 13, 2013 (the date the Eisens filed their lawsuit) and February 23, 2016 (the last day of trial) "caused by Defendants' structures and hedges, which unreasonably obstructed and or unreasonably detracted from Plaintiffs' view." Neither Kirschner nor the trial court attempted to apportion
DISPOSITION
The judgment and injunction after bench trial is reversed except as to the order requiring hedges located between the street and the front setback line of 1134 Lachman Lane to be trimmed and maintained at a height of three feet or under. The case is remanded with directions to the trial court to conduct a new trial on damages, consistent with this opinion, and thereafter to enter a new judgment finding in favor of the Tavangarians and 619 Properties on all claims for damages and injunctive relief except with respect to their failure to trim and maintain those hedges as required by the CC&R's. The parties are to bear their own costs on appeal.
We concur:
ZELON, J.
FEUER, J.
Notes
Mr. Tavangarian owns a firm that designs and constructs higher-end single-family homes and hotels.
The CC&R's were signed by Melvin Lachman, president, and Earl Lachman, secretary, on behalf of the developer and declarant, Marquez Knolls Inc. In places the CC&R's refer to "Declarants" in the plural.
The court explained that 619 Properties, joined as a defendant after it had purchased the Tavangarians' property, did not participate in the trial but agreed to be bound by the court's ruling.
The court found the Eisens did not prove the eastern extension of the cantilevered roof unreasonably obstructed or detracted from their view.
At trial the Tavangarians also raised an in pari delicto defense and attempted to introduce evidence the Eisens' property violated the CC&R's. Although the defense had been asserted in their answer to the second amended complaint, it was omitted in a later-filed amendment to that answer. The court ruled the defense was untimely and excluded the evidence.
The CC&R's for Marquez Knolls tract 26065, recorded on June 20, 1963, at issue in Zabrucky , and those for tract 20305, at issue in the case at bar, are identical, save only that the requirement for approval of all building and remodeling plans by the architectural committee and thereafter by the Marquez Knolls Property Owner's Association, as set forth in paragraph 2, expired on December 31, 1980 in tract 20305, but not until December 31, 1995 in tract 26065.
"The general rule confining the parties upon appeal to the theory advanced below is based on the rationale that the opposing party should not be required to defend for the first time on appeal against a new theory that 'contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at trial.' " (Ward v. Taggart, supra ,
Paragraph 3 established front- and side-yard setback lines for placement of the residence, as well as outbuildings; and paragraph 7 stated a minimum size (2,000 square feet) for the "main structure."
The CC&R's named Melvin Lachman, Marquez Knolls Inc.'s president, and Earl Lachman, its secretary, as two of the three members of the architectural committee, effectively delegating to the Lachmans in the first instance the authority to decide where two-story homes would be built in their development.
Paragraph 16 provided, "Construction of a residence as provided by said Declaration of Restrictions on any of said lots must be commenced within two (2) years from the date of the recording of the deed transferring title to said lot from Declarants herein unless specifically extended in writing by the Architectural Committee."
As the parties acknowledge, it is unnecessary for us to decide in this case whether a single-story residence could now be remodeled to add a second story.
We grant the Eisens' motion to take judicial notice of items 1, 2 and 3 submitted with their motion: the CC&R's for tract 20179, recorded February 7, 1957; the amendment to that tract's CC&R's, recorded March 29, 1957; and the CC&R's for tract 26065, recorded June 20, 1963, the CC&R's at issue in Zabrucky , supra ,
In reaching its conclusion the majority opinion relied on Seligman v. Tucker (1970)
Paragraph 6 provides in full: "No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding erected on any lot, shall be at any time used as a residence, either temporarily or permanently."
The Zabrucky majority gave a nod toward this reasoning, conceding "it would have been preferable for the drafters of paragraph 11 to have located the prohibition against erection of 'any structure' that obstructs the view of an adjoining homeowner in its own paragraph or subparagraph." (Zabrucky, supra ,
The incongruity of reading paragraph 11 to apply to renovations to a homeowner's residence was implicitly recognized by the Zabrucky majority when it softened that provision's absolute prohibition of any obstruction of a neighbor's view by structures within its ambit to preclude only "unreasonable obstructions" of view, notwithstanding the general principle that "implied terms should never be read to vary express terms." (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992)
The Eisens explain they did not present this history of the change in language to the trial court because they and the Tavangarians had agreed the Zabrucky majority's interpretation of paragraph 11 controlled the court's decision.