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Fujisawa v. Martinez

California Court of Appeals, Second District, Seventh Division
Jul 16, 2008
No. B197020 (Cal. Ct. App. Jul. 16, 2008)

Opinion


AUDREY C. FUJISAWA, Plaintiff and Appellant, v. ROBERTO MARTINEZ, Defendant and Respondent. B197020 California Court of Appeal, Second District, Seventh Division July 16, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super.Ct.Nos. KC044135 and KC043570. Donald J. Buckley, Judge.

Betty C. Carrie Teasdale; Merritt Lori McKeon for Plaintiff and Appellant.

Curtiss D. Bonneville for Defendant and Respondent.

WOODS, J.

SUMMARY

The plaintiff filed an action in which the trial court, after extensive briefing, presentation of evidence and multiple hearings, determined she could not enforce certain covenants, conditions and restrictions (CC&Rs) against the defendant because she did not own property in the tract identified in the CC&Rs; that action was dismissed with prejudice and she did not appeal. She filed a second action in which she sought again to enforce the same CC&Rs against the same defendant in addition to asserting several new causes of action. The defendant’s demurrer to the causes of action seeking to enforce the CC&Rs was sustained without leave to amend, the remaining claims were settled and judgment was subsequently entered. In this appeal, the plaintiff challenges the trial court’s order sustaining without leave to amend the defendant’s demurrer to the causes of action to enforce the same CC&Rs. We affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

In January 2004, Audrey Fujisawa (represented by D. Scott Doonan) filed a complaint against Roberto Martinez seeking a temporary restraining order, preliminary and permanent injunctions, declaratory relief and damages. According to the allegations of Fujisawa’s complaint, the rear of her property abutted the rear of Martinez’s property with Martinez’s property at a higher elevation. Both parcels, she alleged, were located in tracts governed by the covenants, conditions and restrictions (CC&Rs) attached as an exhibit to her complaint. She said Martinez was building a six-foot retaining wall at the rear of his lot and planned to install a five-foot fence on top of the wall in violation of the CC&Rs. On her ex parte application, Fujisawa obtained a temporary restraining order providing Martinez could not “back fill” more than two feet adjacent to his rear retaining wall or build a fence on that wall.

Paragraph 10 of the attached CC&Rs specified that “[n]o retaining walls of over two feet are to be erected for the purpose of leveling homesites, except such small walls as are necessary for leveling patios and so forth, and paragraph 16 provided that “[n]o fence, wall or hedge over six feet high is permitted on any side or rear property line . . . .”

A briefing schedule and February hearing date were set for Fujisawa’s request for a preliminary injunction. In his opposition, Martinez argued that Fujisawa lacked standing to enforce the CC&Rs as they each owned property located in different tracts subject to separate CC&Rs. As stated in the deeds which Fujisawa had also attached to her complaint, Fujisawa’s property was located in Tract No. 25822 while Martinez’s property was located in Tract No. 24916. As his own exhibit, he submitted the CC&Rs for Tract No. 24916.

Citing the case of Kent v. Koch (1956) 166 Cal.App.2d 579, Martinez argued Fujisawa lacked standing to enforce the CC&Rs if they did not evidence a clear intention to allow enforcement by a non-owner. To the contrary, he said, the CC&Rs for Tract No. 24916 dated May 15th, 1961, specified: “Whereas: declarants, before said property is sold, desire to subject said property to covenants, conditions, restrictions, provision, reservations and charges as hereinafter set forth, for the benefit of said property and present and subsequent owners thereof . . . declare and impose for the benefit of [¶] 1. Declarants, their successors and assigns and [¶] 2. All other[s] hereafter acquiring title to said homesites and each of them . . . .” Paragraph 1 of these CC&Rs stated: “Tract #24916, Los Angeles County, Glendora area, shall be known as La Fetra Knolls and shall consist of 12 homesites . . . .” As Fujisawa’s property was located in Tract No. 25822 (and not Tract No. 24916), Martinez argued, she had no standing to enforce the CC&Rs applicable to Martinez’s tract.

Although the CC&Rs for Tract No. 25822 (dated September 15, 1960) contained identical restrictions relating to walls and fences, the also contained identical language specifying the intent to benefit “said homesites” and referred to Tract No. 25822’s “twelve homesites.”

In her reply, Fujisawa argued both tracts were in La Fetra Knolls and it made no sense for her to be unable to enforce the CC&Rs against Martinez. She submitted a declaration from Barbara Mee who said it had always been her understanding that all three tracts in La Fetra Knolls were subject to the same CC&Rs. She was on the La Fetra Knolls committee responsible for enforcement of the CC&Rs.

At the preliminary injunction hearing, the trial court (Hon. Daniel Buckley) observed at the outset: “[C]learly the primary dispute, if not the only dispute, is on the standing of the plaintiff.” The court received Fujisawa’s exhibits and heard testimony from Mee (Fujisawa’s friend) and Martinez, then took the matter under submission. The court heard further argument in March and indicated the Kent case appeared controlling in that “said property” was defined only as the one tract but allowed the parties to submit further briefing and documentation. Fujisawa submitted supplemental briefing in which she argued she had standing to enforce the CC&Rs (1) as 36 lots in 3 tracts were developed under a common plan and the grantor intended identical CC&Rs to apply to all 36 lots, (2) as equitable servitudes and (3) as an intended third party beneficiary. In addition, she argued Martinez’s wall constituted a nuisance, unreasonably diverted water over her property causing damage and safety concerns and invaded her privacy. She also submitted a declaration from one of the original developers of the tracts and exhibits including option agreements and various documentation relating to the sale of the land comprising the three tracts.

Along with her supplemental papers, Fujisawa submitted an amendment to her complaint to add Betty C. Teasdale as co-plaintiff and filed a motion to compel joinder of a new party with an interest in real property. On April 19, Teasdale appeared ex parte and in pro per with Fujisawa and said she (Teasdale) had an unrecorded deed (dated about two weeks earlier) which she said “memorialized a preexisting obligation” and gave her a one-half interest in her sister’s property. As a result, she said, the court could not grant complete relief without her. In response to the court’s inquiry, Teasdale said she had notice of the upcoming hearing set for April 29 and was aware of the issues. The trial court granted the motion, ordering the filing of a first amended complaint (instead of a “piecemeal” amendment) with Martinez’s answer to the original complaint deemed an answer to the amended complaint.

Teasdale is counsel for Fujisawa in this appeal; only Fujisawa filed a notice of appeal.

Teasdale also indicated that a substitution of attorney had been filed.

At the continued preliminary injunction hearing on April 29, both Teasdale and Fujisawa appeared in pro per. Teasdale advised the court she had conducted extensive research and that the controlling case was Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345. The court took a recess to read it. After allowing lengthy argument, the court disagreed with Teasdale’s reading of the Citizens for Covenant Compliance case and her argument that it gave her standing to enforce CC&Rs applicable to Martinez’s tract when she did not own property in that tract. She also argued that she could enforce the CC&Rs as mutual equitable servitudes and as an intended third party beneficiary as well as arguing that Martinez had created a nuisance and invaded her privacy.

The court agreed that she would have standing on nuisance grounds and acknowledged her allegation of an invasion of privacy, but, as Teasdale conceded, her entire complaint was “couched in the CC&Rs.” Her oral request to amend was denied. Because the complaint was specific in raising only violations of the CC&Rs, the trial court found Teasdale and Fujisawa did not have standing and dismissed the case, stating: “I’ll dismiss it without prejudice in the sense that—I’ll dismiss it without prejudice.” The court signed a minute order so stating (and directed defense counsel to submit an order after obtaining plaintiffs’ approval as to form).

A week later (on May 7), Teasdale and Fujisawa filed a notice of related cases indicating that, in addition to the action described above (Case No. KC043570), there was a new complaint, Case No. KC044135, (and also a “civil harassment restraining”) filed on May 5, involving the same parties, same properties, “same facts, transaction and events . . . .” By ex parte application (on May 7), Teasdale and Fujisawa also sought a temporary restraining order and OSC re: preliminary injunction in the new action (Case No. KC044135). The trial court (Hon. Dan Oki) denied the application and referred the second case to Judge Buckley in light of the notice of related cases. That same day, the court (Judge Buckley) deemed the cases related.

The record contains no such documents filed on May 5, but in her opening brief, Fujisawa says on that date she “re-filed her First Amended Complaint as a new case, with a pleading titled Second Amended Verified Complaint, and the court ordered the two cases consolidated in the original courtroom.” (According to the record, the cases were deemed related on May 7.)

On May 12, the court filed an order dissolving the temporary restraining order and dismissing the case in Fujisawa’s first action, reciting again that, after receiving evidence and hearing argument, the court found the scope of the complaint was limited to enforcement of the CC&Rs of property Martinez owned in Tract No. 24916, Fujisawa (and Teasdale) did not own property in Tract No. 24916, and the case of Kent v. Koch, supra, 166 Cal.App.2d 579, was controlling. The court ordered the temporary restraining order dissolved, the request for preliminary injunction denied for plaintiffs’ lack of standing to enforce the CC&Rs for Tract No. 24916 and the case dismissed for plantiffs’ lack of standing to proceed.

On May 19, Fujisawa and Teasdale moved to set aside the dismissal in the first case, claiming excusable neglect on the part of Fujisawa’s former attorney as well as Fujisawa and Teasdale who had just graduated from law school. On May 25, she filed her Third Amended Complaint for damages, temporary restraining order and preliminary and permanent injunction in the second case. On the second page of this complaint, Fujisawa and Teasdale alleged they were denied standing in their first suit to enforce the recorded CC&Rs applicable to the entire La Fetra Knolls development and their case had been dismissed without prejudice so they “re-file[d],” alleging causes of action for enforcement of the CC&Rs under theories of (1) covenants running with the land, (2) equitable servitudes and (3) intended third party beneficiaries of the CC&Rs as well as for relief under common law tort theories of (1) private nuisance, (2) invasion of privacy, (3) diversion of surface waters, (4) intentional infliction of emotional distress and (5) negligent infliction of emotional distress.

Martinez filed a demurrer and motion to strike in the second case which was set for hearing on July 15. As to the first three causes of action seeking (again) to enforce the CC&Rs, Martinez argued the court had already ruled against Fujisawa and Teasdale on these claims and they were barred under the doctrine of res judicata.

Meanwhile, on July 6, the trial court (Hon. Bruce Minto) heard Fujisawa and Teasdale’s motion to set aside the dismissal in the first case. Although Judge Minto offered to continue the matter to a date when Judge Buckley would be available, Teasdale said “our date for appeal is Friday, and I’m in trial Wednesday, Thursday and Friday[] so we would either need a ruling today, or we’ll be forced to take an appeal.” The court acknowledged it did not know what the court had said in prior proceedings and agreed that if plaintiffs lacked standing, then dismissal was inevitable but determined that, on the basis of what the court had read, it did not appear plaintiffs had notice their complaint could be dismissed so the motion should be granted on the ground of surprise.

On July 15, after being advised of Judge Minto’s ruling setting aside the dismissal in the first case, the trial court (Judge Buckley) said it had already ruled the plaintiffs did not have standing and dismissed the case as a result. At the court’s invitation, Martinez moved (orally) to dismiss the case again. Asked for a response as to why the case should not be dismissed, Teasdale said because she had missed the deadline for an appeal and needed to come within the statute of limitations to enforce the CC&Rs. The court responded that it appeared plaintiffs were “trying to get a second bite at the apple”: “[R]ightly or wrongly, . . . I’ve determined that you don’t have standing.” Based on the court’s prior ruling that plaintiffs do not have standing as parties to different CC&Rs than Martinez, the court dismissed the first case “with prejudice.” Teasdale asked if plaintiffs had 60 days to appeal, the court responded that it was not commenting on that.

Turning to Martinez’s demurrer to the third amended complaint in the second case and the causes of action seeking to enforce the CC&Rs, the court noted the allegations of facts and theories “beyond the CC&R[s],” under common law and tort theories and sustained Martinez’s demurrer with leave to amend “in case you have some way of alleging this without reference to the CC&R[s].”

Fujisawa and Teasdale then moved to set aside the dismissal in the first case on the basis of excusable neglect and denial of Teasdale’s due process rights as she said she was not given an opportunity to be heard. Martinez filed opposition, and the court denied the motion, finding no excusable neglect and “strongly disagree[ing]” Teasdale had not been heard. “We have a disagreement as to the merits of this case and I’ve made that decision [to dismiss the first case]. I’m not going to let you keep coming back trying to reopen the door.”

Fujisawa and Teasdale then filed a second amended complaint in the second case (because the prior complaint entitled “third amended complaint” was the first pleading in the second case), and Martinez filed a demurrer and motion to strike, arguing as to the eighth and ninth causes of action (“for equitable servitudes” and “for breach of contract as intended third party beneficiaries”), that plaintiffs were attempting to relitigate the same claims already litigated in the first case. In October, the trial court sustained the demurrer to these causes of action without leave to amend. As to the remaining eight causes of action, the demurrer was overruled and Martinez answered.

In December, plaintiffs filed a petition for writ of mandate challenging the ruling as to the eighth and ninth causes of action. That petition was denied.

In April 2005, Peter Wittlin appeared for the plaintiffs and advised the court, apart from the two already dismissed causes of action and the nuisance cause of action, the action was dismissed with prejudice. The parties proceeded on the nuisance cause of action.

In July 2006, the parties advised the court on the record they had reached a settlement and were to prepare an agreement for signature. Ultimately, on December 20, 2006, because the parties could not resolve issues relating to the settlement agreement, the court entered judgment and retained jurisdiction under Code of Civil Procedure section 664.6.

According to the record, the matter was mediated (Hon. Philip S. Guiterrez) and reassigned to a new trial court (Hon. Robert A. Dukes).

Thereafter, plaintiffs filed a motion for order vacating the judgment in accordance with the settlement agreement and “real property law governing covenants running with the land” although they had already filed the judgment just entered. That motion was granted in part.

Then, in January 2007, plaintiffs filed a motion for reconsideration of the dismissal of three causes of action for “enforcement of CC&Rs, enforcement of CC&Rs as equitable servitudes and enforcement of CC&Rs as intended third party beneficiaries of contract” (and request for statement of decision). On February 7, that motion—filed more than two years after the hearing on the demurrer resulting in the dismissal of the two causes of action relating to the CC&Rs—was denied as untimely.

On February 14, Fujisawa (represented by Teasdale) filed notice of appeal from “judgment of dismissal after an order sustaining a demurrer.” The case number identified in the notice of appeal is “KC043570 consol[idated] w[ith] KC044135.”

Fujisawa is the only appellant.

DISCUSSION

According to Fujisawa, the issues on appeal are as follows: (1) Whether the trial court erred as a matter of law when it decided two disputed facts, what parcel constituted La Fetra Knolls subdivision and whether Fujisawa had standing without an evidentiary hearing; (2) Whether Martinez is equitably estopped from asserting that Fujisawa cannot enforce the CC&Rs against him, when he previously enforced the CC&Rs against her; (3) Whether the trial court erred as a matter of law when it required an additional “element” for her equitable servitude and intended third party beneficiary of a contract causes of action, that the parties own property in the same tract, then held she had no standing to enforce the CC&Rs under any of her three legal theories when the pleadings did not establish lack of standing on their face; (4) Whether the trial court erred as a matter of law when it sustained Martinez’s demurrer to her second verified amended complaint when this complaint “pled at least one fact for each required element of each cause of action;” and (5) Whether the trial court abused its discretion when it held that Martinez’s already filed answer would be sufficient against Fujisawa’s not-yet-filed first amended complaint, and when it dismissed the first case without notice and opportunity to be heard and when it refused to reconsider its decision after Fujisawa brought controlling precedent to the court’s attention.

At the outset, we must note that the first three “issues” Fujisawa frames as well as the fifth relate to proceedings in the first case, and Fujisawa did not appeal from the dismissal of that case.

As for the argument asserted by Teasdale that she was deprived of an opportunity to be heard, she is not a party to this appeal.

To the extent Fujisawa directs her appellate brief to the dismissal of the eighth and ninth causes of action (for equitable servitudes and breach of contract as an intended third party beneficiary under the CC&Rs) after Martinez’s demurrer in the second action (the case in which she did file notice of appeal), the record establishes that these issues were actually litigated and necessarily decided between the same parties in the first action. Although the trial court determined the same issues relating to plaintiffs’ causes of action to enforce the CC&Rs had already been decided in the first case, Fujisawa fails to present argument in her opening brief that these claims were not barred and has therefore waived her arguments in this regard. (See Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)

DISPOSITION

The judgment is affirmed. Martinez is entitled to his costs on appeal.

We concur: PERLUSS, P.J. ZELON, J.


Summaries of

Fujisawa v. Martinez

California Court of Appeals, Second District, Seventh Division
Jul 16, 2008
No. B197020 (Cal. Ct. App. Jul. 16, 2008)
Case details for

Fujisawa v. Martinez

Case Details

Full title:AUDREY C. FUJISAWA, Plaintiff and Appellant, v. ROBERTO MARTINEZ…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Jul 16, 2008

Citations

No. B197020 (Cal. Ct. App. Jul. 16, 2008)