Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2008-00110083, David R. Chaffee, Judge.
Feldsott & Lee and Martin L. Lee for Plaintiffs and Appellants.
O’Neill LLP, Lawrence J. Hilton and John M. Whelan for Defendants and Respondents.
OPINION
RYLAARSDAM, ACTING P. J.
The Krauses were annoyed with their next door neighbors, the Richards. The Krauses feared that trees which the Richards had planted would damage a drainage system the Krauses had installed. The Krauses thought that the Richards were storing their garbage cans in a common area where they had no right to store them. The Krauses did not like the Richards parking one of their vehicles in front of the Krauses’ home. The Krauses further thought the Richards were storing unsightly and excessive chairs and tables in their backyard, open to the Krauses’ view. The Richards had also neglected to repair a broken cement patio in the same backyard. And the Krauses objected to bushes planted by the Richards alongside a common “pony wall, ” which had grown to a height where the Krauses’ ocean view was partly obstructed.
The Krauses filed suit against the Richards, alleging that each of their various complaints consisted of a violation of the CC&R’s which governed the Broadmoor Sea View community in Newport Beach where the two sets of neighbors lived. After a trial lasting more than two days, including a site visit by the trial judge, the court gave the Krauses what they wanted as to only one of their complaints: the excessively high vegetation on the Richards side of the common pony wall. The judgment specifically provided that “All other claims for relief by Kraus were denied.”
Both sides then sought attorney fees. The Krauses asked for about $74,000. The Richards asked for about $63,000. Each thought they were the “prevailing party.” The trial court denied both requests, and the Krauses have now brought this appeal from the order denying their request. We affirm. As explained below, whatever the authority for the trial court’s bright-line permanent injunction limiting the Richards’ shrubbery to no more than five inches above the pony wall, it was not in the CC&R’s.
FACTS
1. The CC&R’s:
a. The Landscaping Clause: Article VII, Section 1
The covenants, conditions, and restrictions (or CC&R’s) governing the Broadmoor Sea View development have a provision, Article VII, section 1, centering on individual owner landscaping. In pertinent part it reads: “No... landscaping, shall be... maintained... until plans and specifications shall have been submitted to and approved in writing by an architectural committee.... Said plans... shall not be inconsistent with those certain Planned Community District Regulations, Broadmoor Pacific View, City of Newport Beach, California prepared by Raub, Bein, Frost & Associates, dated October 23, 1975.... Approval shall be based, among other things, on” and then follows various criteria, e.g., “adequacy of structural design and material.” The CC&R’s go on to say that “In any event, the Architectural Committee shall have the right, but not the obligation, to require any Member to remove, trim, top, or prune any shrub, tree, bush, plant or hedge which such Committee reasonably believes materially obstructs the view of any Lot, ” except that the view “may be partially obstructed by trees if such obstruction is approved by the Architectural Committee or Declarant, in their sole and absolute discretion....”
b. The Attorney Fee Clause: Article XV, Section 4(d)
The CC&R’s also contain this attorney fee clause in Article XV, section 4(d): “In any legal or equitable proceeding for the enforcement or to restrain the violation of these covenants, conditions, restrictions, easements, reservations, liens or charges or any provisions hereof, the losing party or parties shall pay the attorneys’ fees of the prevailing party or parties in such amount as may be fixed by the court in such proceedings. All remedies provided herein or at law or in equity shall be cumulative and not exclusive.”
2. The Planned Community District Regulations
While there is nothing in the text of Article VII, section 1 which requires all homeowners in the development to keep any “view side” hedges to a maximum of three feet, there is such a requirement in the community district regulations (called “District Amendment No. 18” in the briefing). Section IV.F. of those regulations provides: “Fences shall be limited to a maximum height of eight (8) feet and are allowed within all setback areas, except in the street side and view side setback where a maximum height of three (3) feet shall be maintained. The maximum height of fences within the view side setback may be increased to six (6) feet provided they are or [sic] wrought iron, clear glass or other open type construction.”
3. The Trial
A judge tried the case, which included his making a site visit. He delivered an oral statement of his decision on April 1, 2010. He noted that the “primary value” of the parties’ homes is not in the “structure, ” but “in the views, ” which were “stunning” and overlooked Fashion Island. He further noted, however, that to gain full advantage of their views, homeowners in the tract would need to look over their neighbors’ property.
On the topic of view obstruction, the judge said: “Given what I think is the lack of the expectation of privacy and the right to maintain the views, I am basically ruling in favor of Dr. Kraus on the view obstruction issue. And, in particular, I do so on the basis of both the provisions in Exhibit 11 [the Planned Community District Regulations, partially quoted above] -- at page 4, dealing -- subsection (f) dealing with fences, hedges and walls. The Silver Sheen bushes, the Hibiscus bushes effectively result in a hedge. There’s no question about it.”
Noting that the pony wall was 27 inches, the judge ruled that vegetation could grow no more than 5 inches above it: “... I’m basically going to direct... that the shrubbery along the pony wall... be maintained at a height of no more than 5 inches, no more than 5 inches above the height of the pony wall. [¶]... I take that measurement from Mr. Richards’ measurement of the pony wall on his side as being 27 inches. So 5 inches is going to be the rule. I think that, as was argued, that’s sufficient for everybody to be able to gain visibility.”
4. The Judgment
The ensuing judgment provided for a permanent injunction requiring the Richards to “immediately trim, cut or top all plant material along the entire length of the pony wall from the wrought iron fence at the rear of the Richards’ backyard to where said pony wall attaches to the Kraus’ home including but without limitation the silver sheen bushes, the dwarf hibiscus bushes[, ] the kangaroo paws and any other plants, trees, shrubs or bushes planted along the pony wall to a height not to exceed five inches (5”) above the pony wall” and keep it that way indefinitely.
The judgment specifically cites both the CC&R’s and the Planned Community District Regulations as the reason for the injunction: “There currently exists in the Richards’ rear yard various shrubs, bushes and trees, including, but without limitation, silver sheen bushes, dwarf hibiscus bushes and kangaroo paws which, given the lack of expectation of privacy, constitute a material view obstruction from the Kraus’ property in violation of District Amendment No. 18 [the Planned Community District Regulations quoted above] and Section 1 of Article VII of the CC&R’s encumbering the Richards’ property.” (Italics added.)
As originally submitted by the Krauses’ attorney, the judgment recited that “[a]ll other claims for relief by Kraus were waived.” The Richards, however, objected to the word “waived, ” asserting that the Krauses had “failed to prove” their other claims (e.g., the alleged parking violations) and asked that the word “denied” be substituted. The trial judge agreed, and crossed out the word “waived” and hand wrote in the word “denied” when he signed the proposed judgment.
5. The Motions for Attorney Fees
Each side made a motion for attorney fees asserting that it was the prevailing party. The tentative decision, embodied in a minute order filed the day of the hearing, July 30, 2010, was to deny both motions.
At the hearing on the motions, the trial judge made it clear that there was “no way” he considered the Richards to have prevailed.
But were the Krauses the prevailing party? The court made no specific finding that the Krauses were the prevailing party. But it was clear that the Krauses had prevailed on one issue: the height limit. Here are all the mentions of “prevailing party” in the trial judge’s comments at the hearing on the attorney fee motions:
“Ultimately, gentlemen, in looking and recalling this case very clearly, indeed, recalling very clearly being in the Kraus and Richards backyards for a period of time, the primary consideration here was one, who’s the prevailing party.
“And in my mind, irrespective of the fact that certain causes of action were pleaded or certain issues were pleaded and not really addressed at trial, I in no way, shape, or form would consider the Richards to be the prevailing party, therefore, positioning them in any respect to obtain attorney fees.
“Secondly, with respect to Dr. Kraus’s position ultimately he prevailed not on the CC&R’s so much as on the city ordinance, the general plan provisions.”
After the attorney for the Krauses said “yeah, ” the trial judge continued:
“So my view was that while the CC&R’s in a fashion adopted or at least were drafted in light of the planning document, the decision didn’t turn on the CC&R’s. The decision turned on the city planning department document.”
Then, after the Krauses’ attorney argued that the “primary” or “underlying right” was in fact the enforcement of the CC&R’s and the decision could not “simply be based on the land use plan, ” the judge had one other comment mentioning the “prevailing party” issue: “Of course, Mr. Feldsott [the Kraus’s attorney], from my position, without that land use plan, Dr. Kraus would not prevailed in this case. So the driving factor wasn’t the CC&R provisions, which could have and probably should have done a better job of spelling out what the view restrictions were.”
While the court took the matter under submission to look at the issue “again, ” a month later the minute order repeated the tentative minute order’s provision that both requests for attorney fees were denied.
The formal postjudgment order embodying the denial of the two motions for attorney fees, prepared by the Krauses’ attorneys, recites that “plaintiffs were granted a permanent injunction against the defendants’ infringement of plaintiffs’ view and therefore deemed the prevailing parties.” (Italics added.)
The record does not reflect that any request for a statement of decision was requested, though, given that the trial easily exceeded one day, such a request might have been presented to the trial court. (See Code Civ. Proc., § 632.) The Krauses filed a timely notice of appeal from the formal postjudgment order denying their fee request.
DISCUSSION
1. The Issues as Framed
Given that (1) the Krauses’ complaint alleged no less than six separate violations of the CC&R’s, with spin-off causes of action for trespass based on the potential interference by the Richards’ trees with the drainage system, and (2) the Krauses prevailed on only one of their six claimed violations, it certainly would have been reasonable for the trial court to have declared there was no overall “prevailing party, ” and on that basis refused to award any fees.
The Krauses assert that they were found to be the “prevailing party” (as set forth, for example, on page 19 of their opening brief). But that assertion is not quite accurate. The trial court never said that, for purposes of attorney fees, it was exercising its discretion to declare the Krauses to be the prevailing party. What it said was they prevailed on one particular claim. In that regard the trial court’s deliberate rejection of the word “waived” and its substitution of the word “denied” is noteworthy: The trial court went out of its way to make the point that the Krauses did not prevail on their other claims.
Moreover, since no statement of decision was requested, the trial court’s implied finding is, in fact, that the Krauses were not the “prevailing party.” As the court said in Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267: “[I]n the absence of a statement of decision, an appellate court will presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record. In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence.” (Footnote omitted, italics added.)
Here, given the mixed result, the implied finding that the Krauses were not the prevailing party is readily supported by substantial evidence. (See generally Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574 [upholding trial court’s finding that there were no prevailing parties in CC&R litigation based on “practical” test of who, if anybody, was prevailing party].)
That said, the Richards have not pressed any argument based on an implied finding that the Krauses were not the prevailing party, so we do not rely on that rationale to affirm the judgment. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [“Each brief must:... State each point under a separate heading or subheading summarizing the point....”]; e.g., Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 542 [not discussing point raised in footnote because not presented in separate heading]; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 [“The failure to head an argument as required by California Rules of Court... constitutes a waiver.”].) We note the point simply to demonstrate the justice of our affirmance of the trial judge’s order based on an exegesis of the applicable provision from the CCR&R’s. Our result today might have been readily reached in a shorter opinion without even the need to discuss the CC&R’s if the argument had been raised.
For their part, the Krauses have also not raised an argument with at least some intuitive appeal: the possibility that the Planned Community District Regulations, which the trial court considered to be the dispositive authority for its injunction, really is a “governing document” within the meaning of Civil Code section 1354, subdivision (c). The point is noteworthy because the community district regulations certainly do not “feel” like traditional zoning laws which ordinarily do not come with micromanaged side view limits. Their level of detail is more in keeping with traditional CC&R’s. Rather, in their reply brief, the Krauses have positively embraced the idea that the district regulations are a zoning law which affords no private cause of action for individual unit owners. Accordingly, we proceed on the assumption that the community district regulations are not governing documents under Civil Code section 1354.
Where the parties have joined issue is on the question of whether the Krauses actually prevailed (on the single point on which they did prevail, we might add) on the CC&R’s as distinct from the district regulations. Thus, on page 17 of their opening brief, they assert that the “fact that the trial Court’s decision ‘turned’ on ‘District Amendment No. 18’ was and is irrelevant -- this ‘District Amendment No. 18’ was only evidence of the fact that the ‘CC&R’s... were drafted in light of... [that] planning document.’”
Thus, as the Krauses’ reply brief makes clear, the Krauses’ argument in this appeal boils down to this: Despite the trial judge’s protestations that he was really relying on the three-foot hedge limit in the district regulations, in giving the injunction he was necessarily enforcing the CC&R’s. As framed, then, this appeal completely “turns” on whether some provision in the CC&R’s supports the judgment.
2. The CC&R’s Do Not Establish
A Three-Foot Hedge Limit
We have looked, but it is not there. There is nothing in Article VII, section 1 which provides authority for the trial court’s 27-inch fence plus 5-inch vegetation decision.
Let us examine Article VII, section 1 sentence by sentence. The first sentence says that no landscaping may be maintained without approval from the architectural committee, period. The second sentence addresses the situation if an owner wants such approval and submits plans for proposed landscaping: Those plans for landscaping must be prepared by a person approved by the architectural committee and shall not be “inconsistent” with the district regulations. The second sentence also adds a number of requirements “where appropriate” for any plans, including the need to specify the “type, location and elevation” of trees, shrubs and other vegetation. The next sentence is historical: Its effect is to have exempted the developer, back more than three decades ago, from having had to comply with the provisions of the section. The fourth sentence gives the criteria for “approval” of any submitted plans, including “preservation of view and aesthetic beauty with respect to fences, walls and landscaping.” That fourth sentence also says that the criteria include “conformity with such rules and regulations as may be adopted by the Architectural Committee” and in conformity with the “purpose and general plan and intent of this Declaration.”
Then comes a changeup. The fifth sentence breaks with the theme of the need for plans and the criteria by which a committee might approve them, and sets down a framework to govern the problem of overgrown shrubbery. “In any event, ” this sentence begins, “the Architectural Committee shall have the right, but not the obligation, to require any Member to remove, trim, top, or prune any shrub, tree, bush, plant or hedge which such Committee reasonably believes materially obstructs the view of any Lot....” (Italics added.) The remaining half of sentence five deals with an exception for trees. (Trees can “partially” obstruct a neighbor’s view.) The fifth and final sentence ends with special protections for a certain lot in the tract (which lot, the parties agree, is not the Krauses’).
The Krauses refer us to no other provision of the CC&R’s which even arguably comes as close to article VII, section 1 in affording authority for the trial court’s injunction. The problem for them is: Such authority cannot be found in article VII, section 1 either. Significantly, there is no incorporation by reference of the district regulations. Landscaping plans submitted to the Architectural Committee need only be “consistent” with those regulations. We need only note in passing here that the Krauses did not sue the homeowners’ association on a theory that its Architectural Committee should have been the entity to try to force the Richards to top off their hedges over the pony wall. They sued the Richards directly.
Article VII, section 1, by its text, vests the Architectural Committee with the discretion (hence the “right but not obligation” language) to call foul on overgrown shrubbery. The obvious intent was to build in a measure of flexibility and consistency to vegetation top-off matters. Presumably, the Architectural Committee would be in a position to know the degree to which one piece of vegetation, as distinct from another, obstructs a view, the degree to which given vegetation beautifies or detracts from neighbors’ views generally, and the degree to which different neighbors were creating diverse effects in their yards. That is, the Architectural Committee is to be able to have the “big picture” of the community environment when it comes to evaluating different sorts of landscaping.
By contrast, the trial court’s injunction was a bright-line affair. Thus it cannot be said that the trial judge here was exercising discretion as a kind of one-man judicial Architectural Committee. Had the Krauses gone through the Architectural Committee, we don’t know how it might have exercised its discretion on the vegetation behind the pony wall. The Architectural Committee might very well have allowed the Richards up to an extra four inches of hedges above the pony wall, or precluded any vegetation above it completely.
Now, what about the idea that (1) regardless of whatever discretion the CC&R’s might invested in the Architectural Committee, the provision in the CC&R’s that any approval of any landscaping plans not be “inconsistent” with the district regulations, combined with (2) the three-foot bright line set forth in the district regulations, meant that the injunction which the court made was necessarily a de facto enforcement of the CC&R’s?
To this question we must agree with what the trial judge intuited in his “prevailed not on the CC&R’s so much as on the city ordinance” comment. That is, the substance of the trial judge’s injunction was grounded in the district regulations, not Article VII, section 1. Only the district regulations enunciated a substantive rule. Article VII, section 1 is about process and discretion.
The Krauses assert, interestingly enough, that the trial court must have been enforcing the CC&R’s, and not the district regulation, because by definition the trial “could not have been enforcing that zoning regulation.” (The argument is made in their reply brief on page 4.) As noted, the Krauses do not believe that the district regulation could be enforced privately.
The point is unnecessary to explore, and in any event the Krauses would probably wish that we didn’t explore it. The Krauses may savor their victory in the battle of the hedges. The judgment which they obtained is now final. We will not speculate what might have been the case had, say, the Richards appealed from the judgment granting the injunction, claiming there was no authority which allowed the trial court to make its ruling. (After all, 27 inches plus 5 inches equals 32 inches, and 32 inches is not a figure that appears anywhere in either the CC&R’s or the district regulation.) What we do say is that in granting the now-final injunction, whatever else the trial court may have been doing and whatever the authority for its ruling, the trial court was not enforcing the “contract, ” i.e., the CC&R’s.
DISPOSITION
The order denying the Krauses their motion for attorney fees is affirmed. In the interests of justice, and in the spirit of the trial court’s determination that neither side should recover fees, we determine that each side should bear its own costs.
WE CONCUR: MOORE, J.FYBEL, J.