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Katz v. Puda

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Aug 24, 2018
D071644 (Cal. Ct. App. Aug. 24, 2018)

Opinion

D071644

08-24-2018

PAUL KATZ, as Trustee, etc., Plaintiff and Appellant, v. GERALD J. PUDA et al., Defendants and Respondents.

Barry A. Ross for Plaintiff and Appellant. James S. Marinos for Defendants and Respondents.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00023414-CU-OR-NC) APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Reversed in part; affirmed in part. Barry A. Ross for Plaintiff and Appellant. James S. Marinos for Defendants and Respondents.

This appeal arises from a dispute between neighbors about obstruction of a view by untrimmed trees. A recorded Declaration of Restrictions (DOR) requires property owners to trim their trees if the trees adversely impact the view from other lots within the residential project. We find that the DOR is sufficiently clear to be enforceable, but affirm the court's ruling denying relief because the parties have unclean hands in this case in equity. We reverse the trial court's award of attorney fees to the defendants, Gerald J. Puda and April S. Puda (collectively, the Pudas).

FACTS

Plaintiff Paul Katz, Trustee of the Katz Family Trust (Katz) and the Pudas are neighbors in the Escondido residential project, "Viewcrest Above Lake Hodges" (project). The project was completed in 1993 and its DOR was recorded on April 1, 1993.

Relevant here, article II, section 8 of the DOR provides:

"View Corridors. All trees shall be trimmed by the Owner of the Lot upon which the same are located if the trees adversely impact the view from other Lots within the Real Property. Similarly, placement of accessory structures shall not adversely impact view from other Lots within the Real Property."

In 1997, the Pudas purchased their home in the project. Katz purchased his home in 2012. The Puda lot is immediately to the north of the Katz lot and is 10 to 20 feet lower in elevation than the Katz lot.

After moving in, Katz contacted the Pudas and complained that the Pudas' vegetation, trees and landscaping in general were interrupting an attractive view to the north, specifically a vista of mountains, city lights, and Palomar Hospital. When they were unable to resolve their dispute, Katz filed an action in the trial court for mandatory injunctive and declaratory relief. The Pudas filed a cross-complaint for injunctive and declaratory relief, and nuisance, but later dismissed this cross-complaint.

It does not appear from the record that either party at any time requested the project's homeowner's association (HOA) to enforce or interpret article II, section 8 and, by the time of trial, it appears the HOA was inactive.

After a three-day bench trial, the judge made an on-site visit to the Katz and Puda properties. Katz demanded no growth of vegetation (in particular, birds of paradise and pepper trees) above an existing stucco wall, and the trimming of six palm trees, one of which he felt needed to be removed. However, Katz did not demand the remaining trees be removed. He allowed that trimming of the palms was needed immediately in order to restore the view of the mountains and city lights, and that given the slope of the terrain, once the trees got to a height of 35 feet or more, trimming was "not that big an issue."

In early September 2016, the court issued a tentative statement of decision (SOD) finding in favor of Katz. The court concluded article II, section 8 by its express terms, applied only to trees. It found credible, and relied upon, the testimony of plaintiff's expert Robert Fransen, a real property developer, who testified the orientation and elevation of the Katz property made it a view property with views to the northwest. It relied upon the photographic exhibits, especially 5.2, 5.9, and 5.10, to conclude there was a protectable view of the mountains to the northwest. It expressly found that view was disturbed by the fronds of the palm trees located on the Puda property. It thus tentatively ordered the Pudas to trim the six palm trees indicated in the noted exhibits, such that their fronds would not interfere with Katz's northerly view. It did not require any other tree or vegetation be trimmed or removed, and specifically refrained from addressing a pepper tree and birds of paradise in its tentative SOD.

Pursuant to Code of Civil Procedure 632, the Pudas filed Objections and Request for Hearing on the tentative SOD. The Pudas first sought to clarify that there were only four, rather than six, palm trees involved. They discounted the testimony of Fransen as being a contractor/developer and not an expert in "aesthetics," "views," "view corridors" or "protectable views under the law." The Pudas also urged the only view at issue was depicted in exhibits 40A, 40B, and 40C, and the view was not a "protectable[,] lovely view" because it was of some foothills to the side of the hospital, a parking lot, and office buildings. They requested the trial court use a standard of equitable relief.

In its final SOD filed on October 26, 2016, the court reversed its tentative and issued a verdict for the Pudas. The court awarded attorney fees of $42,542.50 to the Pudas, pursuant to article III, section 1 of the DOR.

In its final SOD, the court noted that nowhere in the DOR are the terms "view" or "view corridor" defined. Relying on case law interpreting contracts, the court noted per Civil Code section 1596 that the terms of a contract must be possible and ascertainable. It found that, despite testimony from Fransen that Katz had a northerly view, which would compel the Pudas to trim offending trees, the scope of the view in the DOR was not defined by extrinsic evidence. Therefore, it concluded article II, section 8 was not clear or explicit enough to provide for enforcement in this case.

Civil Code section 1596 provides: "The object of a contract must be lawful when the contract is made, and possible and ascertainable by the time the contract is to be performed."

Katz filed a notice of intent to move for new trial. However, because the motion was filed on November 14, 2016, it was deemed four days late and thus, for jurisdictional reasons, the court concluded it was not able to proceed on the motion.

Katz filed a timely notice of appeal from the court's final decision and judgment.

The decision respecting jurisdiction on the motion for new trial is not before us. Nor is the question of what vegetation qualifies as a "tree." Although Katz requested the trial court find the birds of paradise and pepper trees be categorized as "trees" for purposes of article II, section 8, the court did not categorize them as such. The issue was not briefed by the parties.

DISCUSSION

Standard of Review

Generally, a trial court' s decision to grant or deny declaratory and injunctive relief will not be disturbed on appeal unless it is clearly shown it abused its discretion. However, where the essential facts are undisputed in reviewing the propriety of the trial court's decision, we face questions of law. Moreover, to the extent our review of the court's declaratory judgment involves an interpretation of the DORs, that too is a question of law to be addressed de novo. (Ekstrom v. Marquesa at Monarch Beach Homeowners Association (2008) 168 Cal.App.4th 1111, 1121 (Ekstrom); Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 974.)

Because the issue before us involves no essential facts but instead whether article II, section 8 of the DOR is too vague to enforce, we apply a de novo standard of review.

Validity and Enforceability of Article II, Section 8

The only question presented by Katz on appeal is whether article II, section 8 is too vague to be enforced. We agree with Katz that the restriction is valid and enforceable.

The language of article II, section 8 is clear. If a property owner has a view, another property owner may not "adversely impact" the view through the view corridor. Contrary to being vague, the clause is very stringent. There are no restrictions regulating from where the viewpoint originates. Moreover, the scope of any adverse impact is not limited. The section says no adverse impact. Nor is there any subjective judgment allowed as to the aesthetic value of the view involved. Any "view" and its corridor are protectable.

Fransen explained that the configuration of the lots within the project were designed to offer views. He testified that with respect to the Katz property, there is a view to the north. He would consider the Katz property a "view property." We have examined the exhibits offered at trial and conclude that the focus of the conflict appears to be that north/northwest view.

Katz testified he wanted views from the upstairs bedrooms, family room and the living room as well as "sitting down inside the house." The record is confusing and so undeveloped that these claimed views are impossible to review. --------

At trial, the Pudas offered no evidence that a view does not exist. Nor did they argue their trees do not adversely affect the Katz's view northward and northwestward. Rather, they argued the terms of article II, section 8 were not sufficiently clear to be enforceable and that the view is not one which should be protectable. Case law however, supports the opposite conclusion.

As a general rule, restrictive covenants are construed strictly against the person seeking to enforce them. Any doubt will be resolved in favor of the free use of land. However, 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. "The intention of the parties is to be determined from the document as a whole, and if possible still give effect to every part." (Zabrucky v. McAdams (2005) 129 Cal.App.4th 618, 622 (Zabrucky).)

A restriction requiring trimming of trees in order to preserve views and view corridors is not uncommon. (See Ekstrom, supra, 168 Cal.App.4th at p. 1119; Ezer v. Fuchsloch (1979) 99 Cal.App.3d 849, 854 (Ezer); Seligman v. Turner (1970) 6 Cal.App.3d 691 (Seligman); see also Quail Botanic Gardens Foundation, Inc. v. The City of Encinitas (1994) 29 Cal.App.4th 1597.) While some cases involve restrictions tied to designated landmarks, such as trees required to be no taller that the roofs of structures (see Ekstrom, at p. 1114; Ezer, at pp. 859, 862), some do not (see Seligman, at p. 693 [term "unreasonably obstruct the view" is not too vague to enforce]; Zabrucky, supra, 129 Cal.App.4th at p. 623 [CC & Rs prohibiting new dwelling structures from "detract[ing] from the view of any other lot" are enforceable].)

Of course, one of the problems in this case is that there is no HOA to resolve this dispute and decide how the view restriction should be applied. Indeed, the manner in which this restriction can be enforced greatly influenced the trial judge. This is evident in her inquiries about the need for ongoing supervision by a court and self-help by the parties.

We conclude article II, section 8 is not overbroad. It calls for the trees on the Puda property to be trimmed so as not to adversely affect the north/northwest view of the Katz property from the area depicted in exhibits 4.0 through 4.12 and 5.1 through 5.4. This encompasses the one pepper tree and six palm trees identified in the exhibits. As noted, article II, section 8 calls for tree trimming, not removal. The record does not reflect the birds of paradise at issue are trees within the meaning of the DOR. Vegetation other than trees is not covered by article II, section 8. We add that while "adverse impact" is one of those phrases with meaning that is in the eye of the beholder, it is not so broad as to be unenforceable. We thus conclude the trial court erred in deciding article II, section 8 is so overbroad as to be unenforceable.

Equity

However, this conclusion does not end our inquiry. A judgment should be affirmed if it is correct on any legal basis, even if that basis was not stated by the trial court. (Espinoza v. Shiomoto (2017) 10 Cal.App.5th 85, 100.) The dispute here is grounded in equity. Katz sought the equitable remedies of an injunction and declaratory relief. The trial court was clearly concerned the parties' acrimonious relationship would continue to such an extreme state that they would be seeking repeated enforcement assistance from the court, combined with possible self-enforcement of trimming. These factors are evident in the trial judge's questioning of the parties during closing argument on the third day of trial. The equitable doctrine of unclean hands applies when one or both parties have "acted unconscionably, in bad faith, or inequitably." (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 432; Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 367-368.) A dispute over trimming trees should not escalate to the point of consuming three days of a trial court's time and attorney fees over $40,000, just on one side, with the potential for ongoing enforcement litigation in the courts. For these reasons, we reverse the trial court's order awarding attorney fees to the Pudas, and otherwise affirm the judgment, on grounds other than those stated by the trial court.

DISPOSITION

We reverse the trial court's award of attorney fees to the Pudas and otherwise affirm the court's order, in equity, that the restriction in article II, section 8 is unenforceable due to the parties' conduct and potential future actions against each other. In the interest of justice, each party is to bear its own costs on appeal.

BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. HALLER, J.


Summaries of

Katz v. Puda

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Aug 24, 2018
D071644 (Cal. Ct. App. Aug. 24, 2018)
Case details for

Katz v. Puda

Case Details

Full title:PAUL KATZ, as Trustee, etc., Plaintiff and Appellant, v. GERALD J. PUDA et…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Aug 24, 2018

Citations

D071644 (Cal. Ct. App. Aug. 24, 2018)