Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00113565, Sheila Fell, Judge. Affirmed.
Law Offices of Joshua B. Vinograd and Joshua B. Vinograd for Defendant and Appellant.
Russo & Duckworth and J. Scott Russo for Plaintiffs and Respondents.
OPINION
RYLAARSDAM, ACTING P. J.
Defendant Marc Vanefsky appeals from a judgment rendered against him and in favor of plaintiffs Brian and Dana Flood. They are neighbors in Corona Highlands and subject to CC&R’s that place limits on the size of trees planted on their properties. After a bench trial, the trial court determined that defendant’s trees exceeded height limits specified in the CC&R’s and issued an injunction ordering him to conform to their requirements.
This is a second appeal in this action. We previously reversed the judgment solely on grounds the trial court failed to issue a statement of decision. (Flood v. Vanefsky (Apr. 13, 2010, G042657) [nonpub. opn.].) This defect has now been cured. Because we anticipated a subsequent appeal, we provided in our earlier opinion the parties would be permitted to submit this appeal on the record and briefs previously filed (id. at p. 2), with supplemental briefing and record submission. We therefore review the issues raised in defendant’s brief in case No. G042657 as well as in his brief filed in the present action.
Our task is not aided by the failure of the parties to supply us with record references for each fact, in violation of California Rules of Court, rule 8.204(1)(c). Defendant’s opening briefs are particularly deficient in this regard. “‘“It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.”’ [Citation.] Because ‘[t]here is no duty on this court to search the record for evidence’ [citation], an appellate court may disregard any factual contention not supported by a proper citation to the record [citations].” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379, italics omitted.) Although they make frequent references to trial exhibits in their briefs, the parties also failed to supply these to us. We will disregard alleged facts that are not supported by record references or the record supplied to us.
Defendant’s opening briefs purport to raise the following issues: (1) the judgment is unconstitutional; (2) the trial court “failed to weigh equity”; (3) plaintiffs failed to satisfy their burden at trial; (4) the case relied on by the trial court is distinguishable; (5) the trial court refused to conform the judgment to two prior rulings; (6) plaintiffs should not be awarded cost of suit; and (7) “the statement of decision buttresses the arguments raised in the earlier briefs.” None of the contentions have merit and we affirm the judgment.
FACTS
Plaintiffs and defendant own adjoining houses in Corona Highlands. Although the parties failed to provide us with a copy of the CC&R’s, one of the trial exhibits, they agree that the document contains a provision that “[n]o trees or shrubs shall be planted which, when fully grown, shall block or interfere with the ocean view of adjoining or other properties in said tract. Any trees planted shall not, when fully grown, exceed [16]... feet in height.” When defendant purchased his property, there were trees planted by a previous owner along his fence and on a canyon slope in “Buck Gully.” These trees have now grown so tall as to exceed the 16-foot height limit and several of them interfere with plaintiffs’ ocean views. The trial court issued an injunction ordering defendant to maintain all trees so that none were higher than 16 feet and, with respect to trees blocking plaintiffs’ ocean views, so that the tops of six identified trees located on his northeast property line “are not more than four... feet above the top of the current height of the property line fence....”
DISCUSSION
1. The judgment does not raise constitutional issues.
Defendant’s claim the judgment is “overbroad, inconsistent, unclear, arbitrary and unreasonable” (bold, underscoring and capitalization omitted) and thus unconstitutional. He cites no authority that supports this contention, but instead relies primarily on Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361. That case dealt with restrictions on pet ownership contained in CC&R’s and held that “the reasonableness or unreasonableness of a condominium use restriction... is to be determined not by reference to facts that are specific to the objecting homeowner, but by reference to the common interest development as a whole.” (Id. at p. 386, italics omitted.) But all of defendant’s arguments relate to the alleged unreasonableness of the injunction as it pertains to him and his property; there is no claim the restriction is unreasonable as “to the common interest development as a whole.” He does maintain that the CC&R’s “could not be uniformly and consistently applied to all homeowners in Corona Highlands nor could they be applied throughout the community in a reasonable, fair and even manner.” But he fails to point to any evidence that would support this conclusion, which we fail to see as self evident.
Again without any reference to the record, defendant states “[t]he [j]udgment is overbroad for at least four reasons: 1) it includes the [s]lope [t]rees, which are not covered by Paragraph 11 of the CC&R[’]s; 2) it includes every tree on [his] property, including trees that were not part of the lawsuit and do not impair an ocean view; 3) it includes trees that have structures behind them or other reasons supporting permitting a height taller than 16 feet; and 4) not every tree in Corona Highlands is under 16 feet.” As noted earlier, we cannot evaluate these alleged facts in the absence of appropriate record references. He also argues “[t]he [j]udgment is unclear, vague, ambiguous and uncertain as to which trees on [his] property exceed 16 feet.” But it isn’t. The limitation contained in the CC&R’s clearly applies to all trees and so does the injunction. It mandates all his trees to be trimmed to 16 feet and, with respect to the six trees, clearly identified, that block plaintiffs’ ocean views, requires trimming below 16 feet.
2. Substantial evidence supports the trial court decision.
As noted, defendant argues the trial court “failed to weigh equity, ” plaintiffs did not meet their burden at trial, and the case on which the trial court relied can be distinguished. These purported issues may be combined under the rubric: the decision is not supported by substantial evidence. ‘“[A]n appellant who challenges a factual determination in the trial court... must marshal all of the record evidence relevant to the point in question and affirmatively demonstrate its insufficiency to sustain the challenged finding.’ [Citation.] ‘If one is going to make a “the-facts-compel-that-I-win-as-a-matter-of-law” argument, one’s brief must fairly state all the evidence. [Citation.] Failure to comply with that requirement risks forfeiture of the claim. [Citation.]” (DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236, 259-260.) Here, defendant violates this requirement by only referring to evidence introduced to support his position (and again mostly without any references to the record). For one thing, he fails to tell us his trees were as high as 30 feet tall.
Defendant maintains “the trial court stated in its minute order that [plaintiffs’] conduct of excavating down between 6 and 30 feet was not relevant to determine equity.” There is a reference to “Minute Order, p. 1-2.” But he does not tell us where we can find this minute order in the record. We will ignore it. And there was evidence that plaintiff only lowered their property “a few feet for a basement and the back yard was lowered 2 feet at the pool edge.”
Defendant does give us record references to the evidence offered by his arborist expert that the trees on his slope “are integral to the slope’s stability.” He fails to tell us that other evidence showed that the root structure of remaining tree stumps would remain for as much as 20 years and would continue to provide slope stability. He also neglects to point out that shrubs or other trees could be planted, which would not grow taller than 16 feet. These are examples of defendant’s failure to give us a fair presentation of the evidence presented at the trial. We can cite more but need not do so.
Defendant claims plaintiffs “failed to establish the [association] has authority to enforce Paragraph 11 of the CC&R[’]s equally and fairly against all homeowner in Corona Highlands.” But this is irrelevant because defendant does not dispute that the CC&R’s state that its provisions “may be enforced not only by Declarant, but also by any future owner of each, every or any of said lots....”
Defendant also attacks the qualifications of Robert Hunter, who testified as an expert for plaintiffs. ‘“The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown. [Citation.] This court may find error only if the witness “‘clearly lacks qualification as an expert.’” [Citation.]”’ (People v. Singleton (2010) 182 Cal.App.4th 1, 21, italics omitted.) Defendant did not reveal that Hunter has been a certified arborist for 24 years and owned a landscape company for 20 years. We fail to find an abuse of discretion.
Again without pointing to where we could find this in the record, defendant states that “[i]n its two page minute order, the trial court referenced a single case in its one paragraph of analysis, Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111.” He claims this was error. Absent the appropriate record reference, we cannot determine the context in which the court cited Ekstrom. The case involved a suit by members of an association against the association for failure to enforce tree height restrictions. This court held that the CC&R’s must be enforced. (Id. at p. 1114.) We fail to see where this case does anything but support the trial judge’s decision.
3. A Superior Court judge is not bound by the decision of another Superior Court judge in a case involving other parties.
Defendant refers to two other Superior Court cases, Marcella King Trust v. Bonvicini, Orange County Superior Court, case No. 801418 and Bonvicini v. Marcella King Trust, Orange County Superior Court, case No. 00CC02056 . He alleges these involved the same CC&R’s and their results differed from the ones reached here. Plaintiffs, on the other hand, contend that in King, Judge Siegel issued an injunction ordering the defendants to trim and maintain their trees at 16 feet and that Bonvicini, decided by Judge McEachen, involved a dispute over the height of a structure. Defendant cites no authority for the proposition that these cases were binding on the judge in this case. And they were not. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 holds that “[u]nder the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.” (Id. at p. 455.) But there is no rule that requires courts of equal jurisdiction to be bound by each other’s rulings.
As is his wont, defendant provides us neither with copies of these two decisions nor with a record reference to his statement that the trial court took judicial notice of them.
4. Defendant’s argument relating to costs awarded fails.
Again without reference to the record or based on any citation to authority, defendant asserts plaintiffs are not entitled to their costs. Plaintiffs suggest this argument may be based on a purported offer made by defendant under Code of Civil Procedure section 998. However that offer does not conform to the judgment. Nor does the record disclose that defendant ever moved the trial court for costs under Code of Civil Procedure section 998. Because plaintiffs were the prevailing party, the award of costs seems appropriate.
5. The trial court’s statement of decision is adequate.
At the outset of the trial, the parties supplied the trial court with a list of 10 controverted issues. The court’s statement of decision, as incorporated in the judgment, sufficiently addresses these issues. Defendant’s objections essentially focus on the merits of the case, as argued in the trial and here. “Sections 632 and 634 of the Code of Civil Procedure have been interpreted to mean that a statement of decision is adequate if it fairly discloses the determinations as to the ultimate facts and material issues in the case. [Citation.]” (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) That was done here.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: O’LEARY, J., IKOLA, J.