Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05AS04231
SIMS, Acting P. J.Appellants Melody S. Jackson and Wayne E. Jackson (the Jacksons) challenge a judgment denying them declaratory and injunctive relief on claims that their neighbors, respondents Cecil Barbee and Bea Barbee (the Barbees), violated the Declaration of Covenants, Conditions, and Restrictions Broadstone Unit 1B (CC&Rs) applicable to their residences. The Jacksons contend that (1) the Barbees violated sections 2.15 (section 2.15) and 2.16 (section 2.16) of the CC&Rs by “regularly parking or maintaining” their motor home in front of their residence, (2) insufficient evidence supports the trial court’s finding that the Barbees did not regularly park or maintain the motor home in front of their residence, and (3) insufficient evidence supported the finding that the noise emitted by the motor home’s generator did not constitute a nuisance. We conclude that the trial court employed a fair reading of the CC&Rs’ prohibition on regularly parking or maintaining a motor home, and the evidence in the record in support of the judgment is solid and credible. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Following a two-day court trial, the trial court issued a tentative decision, which it later adopted as its statement of decision. In relevant part, the statement of decision states: “The Jacksons and Barbees live across the street from each other in the Broadstone subdivision in Folsom, California. Both have lived in their respective residences since 1994 when the subdivision was originally built. They lived in apparent harmony as neighbors until 2005 when events occurred that resulted in this proceeding.
“In January 2005, the Barbees purchased an Itasca motor home. The Barbees stored the motor home in a rental facility several miles from their residence. They had formerly owned a pop-up camp trailer that they had stored in the same location. The Barbees used the motor home for periodic weekend outings primarily to attend motor racing events [at] which Cecil [Barbee] officiated. In June 2005, the Barbees received several written communications from Elliot Homes the builder of the subdivision. These letters informed the Barbees that there had been complaints from another homeowner about parking the motor home in front of the Barbee residence. In August 2005, attorney Thomas sent a letter to the Barbees on behalf of the Jacksons demanding that the Barbees cease parking the motor home in the subdivision. This action was thereafter filed.
“The complaint seeks declaratory and injunctive relief based on a number of alleged violations of the Broadstone subdivision CC&Rs.
“First the Jacksons alleged that the Barbees are in violation of the CC&Rs by parking the motor home on the street in front of the Barbee home. . . . [T]he Jacksons [also] complain that the use of the motor home generator and disposal of sewage from the motor home constitute nuisances.
“. . . Section 2.15 of the CC&R.s [sic] provides as follows: [¶] ‘Recreational Vehicles. No trailers, boats, motor homes, commercial vehicles or inoperable cars shall be regularly parked or maintained on the street or streets adjacent to any Lot or on the driveway or yard upon any Lot unless the portion of driveway or yard so used is located to the rear of the front of the house, excluding the garage, and is enclosed by a suitable fence.’
“The Barbees conceded that they park the motor home in front of their house on each occasion that it is used. They park it before departure to stock it with food and other commodities, to fill its water tank and otherwise to prepare it for travel. The Barbees testified that this usually took up to several days. However, since the complaints, they have tried to minimize the time necessary to ready the motor home for travel. When the Barbees return, they park the motor home in front of their home to clean and ready it for return to storage. The frequency of use of the motor home varies from month to month but is more often during the racing season. Both parties have kept records of the dates that the motor vehicle has been in front of the Barbee residence.
“[¶] . . . [¶]
“The evidence demonstrates that the Barbees’ use and parking of their motor home is occasional and varying in frequency. The Barbees keep the motor home permanently in a rented space in [a] storage yard. It is on the street occasionally and only as long as is reasonably necessary to prepare it for travel or return it to storage. The court found the testimony of Cecil Barbee on this issue credible in every respect. This included his testimony about his good faith effort to minimize the impact of the motor home on his neighbors. The evidence shows no more than occasional parking of the motor home on the street for a limited time. The evidence does not show the measure of continuity and permanence required for a finding of violation of the CC&Rs.”
The statement of decision also addressed the Jacksons’ claim of excessive noise from use of the motor home’s generator: “The Jacksons also complain the generator on the Barbees’ motor home constitutes a noise nuisance. In support of this complaint, the Jacksons contend that the generator violates the exterior noise level standards of the Folsom Municipal Code. Section 6.04(c) of the CC&Rs declares violations of municipal laws are also violations of the CC&Rs. On cross-examination, Cecil Barbee testified as to the decibel specification for the generator in the owner’s manual for the motor home. The Jacksons testified that the generator noise was loud and intrusive. Barbee testified that he did run the generator for several hours on occasion but that the noise is not excessive. There was no credible or substantial evidence of the noise levels of the generator from which the court could conclude that the noise constitutes a violation of the municipal code or a nuisance to the Jacksons. The Jacksons’ limited evidence on this issue is unpersuasive.
“[¶] . . . [¶]
“The Jacksons offered no explanation for the reason their complaints surfaced in 2005 after many years of peaceful and harmonious relations with the Barbees. Cecil Barbee did offer an explanation. He testified that Wayne Jackson requested the use of the motor home for several weeks in early 2005 at a time when the Jacksons were expecting visits by relatives. Barbee considered and then declined Jackson’s request. Barbee testified that Wayne Jackson’s demeanor changed dramatically thereafter. Complaints by Jackson and this lawsuit ensued. Wayne Jackson denied there was any such conversation. The court finds Barbee’s testimony credible. The complaints and conduct of the Jacksons in this litigation are unreasonable and mean spirited. The Jacksons’ scrutiny and criticism of the Barbees has caused the Barbees unnecessary anguish and the loss of the enjoyment of their residence. The CC&Rs are intended to promote the enjoyment of all residents in such a community.”
The Jacksons did not object to the statement of decision. The trial court entered judgment denying the Jacksons declaratory and injunctive relief, and awarding the Barbees their attorney fees. The Jacksons thereafter timely filed a notice of appeal.
DISCUSSION
I. Standard of Review
The interpretation of a written instrument, such as CC&Rs, “is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence.” (Morgan v. City of Los Angeles Bd. of Pension Comrs. (2000) 85 Cal.App.4th 836, 843; Bear Creek Master Ass'n v. Edwards (2005) 130 Cal.App.4th 1470, 1478.) Neither party contends that parole evidence is required for the proper construction of the sections of the CC&Rs at issue in this case. Thus, we exercise our independent judgment as to the meaning of the CC&Rs.
By contrast, we apply the substantial evidence standard of review in deference to the trial court’s prerogative to resolve issues of disputed evidence and witness credibility. (Rancho Santa Fe Ass'n v. Dolan-King (2004) 115 Cal.App.4th 28, 43.) Thus, “[a]ll conflicts in the evidence must be resolved and all inferences drawn in favor of the judgment.” (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.)
II. General Principles – CC&Rs
Civil Code section 1354, subdivision (a), provides that covenants and restrictions in the declaration of a common interest development “shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development.” The Jacksons contend, and the Barbees do not dispute, that parking is a reasonable subject for regulation by CC&Rs. “[C]ovenants and restrictions in recorded declarations of common interest developments are presumptively reasonable . . . .” (Villa De Las Palmas Homeowners Ass'n v. Terifaj (2004) 33 Cal.4th 73, 88.) In the absence of dispute regarding the reasonability of the CC&Rs’ sections limiting parking, we construe the CC&Rs’ sections the Jacksons contend prohibit the type of motor home parking engaged in by the Barbees.
III. The Parking of the Barbees’ Motor Home
A. Section 2.15 of the CC&Rs
In interpreting CC&Rs provisions, we strive to give them a reasonable interpretation. “The same rules that apply to interpretation of contracts apply to the interpretation of CC&Rs. ‘“[W]e must independently interpret the provisions of the document. . . . It is a general rule that restrictive covenants are construed strictly against the person seeking to enforce them, and any doubt will be resolved in favor of the free use of land. But it is also true that the ‘“intent of the parties and the object of the deed or restriction should govern, giving the instrument a just and fair interpretation.”’”’” (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1377, quoting Zabrucky v. McAdams (2005) 129 Cal.App.4th 618, 622.)
Section 2.15 of the CC&Rs provides:
“2.15 Recreational Vehicles. No trailers, boats, motor homes, commercial vehicles or inoperable cars shall be regularly parked or maintained on the street or streets adjacent to any Lot, or on the driveway or yard upon any Lot unless the portion of driveway or yard so used is located to the rear of the front of the house, excluding the garage, and is enclosed by a suitable fence.”
As the trial court’s statement of decision explains: “The central issue is a matter of contractual interpretation for the court. The question is whether the Barbees’ motor home is ‘regularly parked or maintained’ on the street in front of their home in violation of the CC&Rs. The words of a contract are to be understood in their ordinary and popular sense unless used by the parties in a technical sense, or unless a special meaning is given to them by usage. (See Civ. Code § 1636.) In the absence of evidence of a technical or special meaning, the Court adopts the common meaning in the English language. The word ‘regularly’ is defined in Webster’s II New College Dictionary as customary, usual, periodic, and constant. The word ‘maintain’ is defined as keeping in a certain position. When used together in this context, the words ‘regularly’ and ‘maintain’ connote some measure of continuity and permanence.”
The trial court’s reliance on the Webster’s Dictionary definition constitutes an acceptable manner of ascertaining the ordinary and popular usage of words in the English language. When the issue turns on the meaning of a phrase employed in CC&Rs, “the phrase is to be interpreted in its ordinary and popular sense rather than according to some strict legal or technical meaning. ‘“This ordinary and popular sense is to be related to the circumstances under which the words are used, having in mind the purpose of the contract and the general situation which brought it into existence.” [Citation.]’” (King v. Kugler (1961) 197 Cal.App.2d 651, 655.)
By banning only “regular,” rather than all, parking of motor homes on the streets in the Broadstone subdivision, the CC&Rs contemplate that residents will own such recreational vehicles. By imposing limits on parking, section 2.15 seeks to balance the needs of motor home owners to prepare their vehicles before use and to clean them afterward. This is a reasonable provision calculated to maximize enjoyment and minimize disturbances within the Broadstone subdivision. And, the trial court’s construction of the phrase “regularly park or maintain” reflects this balance.
Agreeing with the trial court’s interpretation of section 2.15, we turn to the Jackson’s contention that section 2.16 provides a separate ban on motor home parking.
B. Section 2.16 of the CC&Rs
The Jacksons contend that the trial court failed to address the applicability of section 2.16 in its statement of decision. The Jacksons, however, failed to request a clarification of the statement of decision in the trial court. As a consequence, they have forfeited the claim that the trial court committed reversible error in failing to address a controverted issue.
As the California Supreme Court has explained, “When the court announces its tentative decision, a party may, under [Code of Civil Procedure] section 632, request the court to issue a statement of decision explaining the basis of its determination, and shall specify the issues on which the party is requesting the statement; following such a request, the party may make proposals relating to the contents of the statement. Thereafter, under [Code of Civil Procedure] section 634, the party must state any objection to the statement in order to avoid an implied finding on appeal in favor of the prevailing party. The section declares that if omissions or ambiguities in the statement are timely brought to the trial court’s attention, the appellate court will not imply findings in favor of the prevailing party. The clear implication of this provision, of course, is that if a party does not bring such deficiencies to the trial court’s attention, that party waives the right to claim on appeal that the statement was deficient in these regards, and hence the appellate court will imply findings to support the judgment. Furthermore, section 634 clearly refers to a party’s need to point out deficiencies in the trial court’s statement of decision.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.) Accordingly, the point is forfeited.
However, even if the issue were preserved for purposes of appeal, we would nonetheless reject the Jacksons’ contention because section 2.16 expressly excepts recreational vehicles described in section 2.15 from its purview.
In relevant part, section 2.16 of the CC&Rs provides:
“2.16 Parking. Every Owner and resident within the Properties shall use the garage, which is part of the residential improvements constructed upon each Lot, for parking or storing any and all vehicles owned or driven by the Owner or other residents, except for those vehicles provided for under Section 2.15. No Owner or resident shall use the streets or driveways for the parking or storage of any vehicle, of any type.” (Italics added.)
As section 2.16 has, by its own terms, no application to the recreational vehicles covered in section 2.15, the trial court properly ignored any limitation on parking imposed by section 2.16 with respect to the Barbees’ motor home.
The trial court did apply section 2.16 when it considered the Jackson’s complaint regarding the passenger car driven by the Barbees’ daughter.
C. Substantial Evidence on the Issue of Parking
“A challenge in an appellate court to the sufficiency of the evidence is reviewed under the substantial evidence rule. [Citations.] ‘“Where findings of fact are challenged on a civil appeal, we are bound by the ‘elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.”’” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968, quoting in part Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1166.) Here, substantial evidence supports the trial court’s finding that the Barbees did not regularly park or maintain the motor home in front of their residence.
In the introduction to the statement of decision, the trial court stated that “[t]he Barbees used the motor home for periodic weekend outings primarily to attend motor racing events [at] which Cecil officiated.” The trial court, however, ultimately found that “[t]he evidence demonstrates that the Barbees’ use and parking of their motor home is occasional and varying in frequency.” The Jacksons assert that the trial court’s use of the word “periodic” necessarily means that Barbees necessarily “regularly” parked the motor home in the Broadstone subdivision. In so arguing, the Jacksons take the trial court’s use of the word “periodic” out of context.
During the year, the Barbees’ greatest frequency of use occurred during the time that Cecil Barbee officiated at races for the Sports Car Club of America (SCCA). Racing season events predominantly fell between June through September. During racing season, the Barbees used the motor home between one and three times per month. Even Cecil’s schedule for officiating at races did not provide a reliable predictor of motor home usage because Cecil Barbee would sometimes drive a SCCA truck and stay in a hotel if the length of trip so required. Thus, the Barbees’ use of the motor home varied seasonally, with some winter months involving no usage at all. And, when not taking trips with their motor home, the Barbees parked the vehicle in a storage yard several miles from the subdivision. On this evidence, the trial court reasonably concluded that, due to the lack of predictability in the Barbee’s motor home usage, the vehicle was not “regularly” parked in violation of section 2.16.
The trial court expressly found Cecil Barbee credible regarding the frequency of the motor home use and the Barbees’ efforts to minimize the time that the vehicle was parked in front of their residence. We defer to the trier of fact on issues of witness credibility. “[N]either conflicts in the evidence nor ‘“testimony which is subject to justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.”’ [Citations.] Testimony may be rejected only when it is inherently improbable or incredible, i.e., ‘“unbelievable per se,”’ physically impossible or ‘“wholly unacceptable to reasonable minds.”’ [Citations.]” (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.)
Here, Cecil Barbee testified that, when the Jacksons began complaining, the Barbees adjusted their practices to reduce the amount of time that the motor home spent parked in front of their house. In doing so, they halved the amount of time preparing the motor home for trips from two days to one. The Barbees also began maintaining a detailed log of times when the motor home was parked in the subdivision.
No other neighbors complained about the motor home to the Barbees.
Cecil Barbee’s testimony alone suffices as substantial evidence in support of the judgment because “the testimony of a single witness is sufficient for the proof of any fact.” (People v. Richardson (2008) 43 Cal.4th 959, 1030; see also Evid. Code, § 411.) Thus, we reject the Jacksons’ claim of insufficient evidence in support of the trial court’s finding that the Barbees did not regularly park or maintain their motor home in the Broadstone subdivision.
IV. Motor Home Generator Noise
The Jacksons contend that the evidence proved that the Barbee’s motor home generator “ran at a decibel level of 66 dba [sic]” and thus violated “City of Folsom Municipal ordinance 8.42.040 which establishes a maximum duration of one minute for noise in excess of 65 dBA.” The trial court found that “[t]here was no credible or substantial evidence of the noise levels of the generator from which the court could conclude that the noise constitutes a violation of the municipal code or a nuisance to the Jacksons. The Jacksons’ limited evidence on this issue is unpersuasive.”
The only evidence of the actual noise level was Cecil Barbee’s admission that the owner’s manual for the generator “very possibly” might list a “maximum decibel level of 66 d.b.a.” The evidence here is insufficient in the same way that a statement in a car owner’s manual indicating a top speed of 150 miles per hour does not prove that the car was in fact exceeding the posted speed limited at a particular time. The trial court did not err in finding the Jacksons’ evidence unpersuasive.
DISPOSITION
The judgment is affirmed. The Barbees shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur: HULL, J., ROBIE, J.