Opinion
G058121 G058670
11-30-2020
KEVIN MUELLER, Plaintiff and Respondent, v. ABRAHAM SAMUEL NAGER, Individually and as Trustee, etc., Defendant and Appellant.
Glickman & Glickman and Steven C. Glickman; Moskovitz Appellate Team and Myron Moskovitz; for Defendant and Appellant. Kushner Carlson, Namson Pham, and Paul Deese for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2017-00948339) OPINION Appeal from a judgment and order of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed. Glickman & Glickman and Steven C. Glickman; Moskovitz Appellate Team and Myron Moskovitz; for Defendant and Appellant. Kushner Carlson, Namson Pham, and Paul Deese for Plaintiff and Respondent.
Defendant Abraham Samuel Nager appeals from a judgment awarding a permanent injunction and nominal damages against him, and from a related order awarding attorney fees to plaintiff Kevin Mueller, all arising from a dispute over plants in defendant's backyard which obstruct the view of the Pacific Ocean from plaintiff's backyard.
Defendant contends (1) the trial court's injunction exceeds the scope of the view rights granted by certain covenants, conditions, and restrictions (CC&R's) governing the parties' neighborhood, (2) there was no substantial evidence of defendant's refusal to trim his plants or of an "unreasonable" obstruction of plaintiff's view, (3) the trial court's injunction was impermissibly based on past behavior, rather than present or future conduct, (4) the statute of limitations barred the injunction, (5) plaintiff failed to exhaust his administrative remedies with the homeowners association's architectural review committee, and (6) reversal of the judgment should be accompanied by reversal of the attorney fee award.
We find no error and affirm.
FACTS
Plaintiff and defendant are neighbors in the gated Emerald Ridge community in Dana Point. The community overlooks the Pacific Ocean. Defendant's home is directly adjacent to plaintiff's home, with defendant's home being downhill from plaintiff's home (i.e., between plaintiff's home and the ocean).
The Emerald Ridge community is governed by the CC&R's, which control various aspects of the residents' interactions with each other, including view rights. The CC&R's may be enforced by a court action brought by an owner or by the homeowners association, with the prevailing party being entitled to attorney fees. The relevant portion of the CC&R's is reproduced below:
"View Obstructions. No fence, structure, Improvement or vegetation shall be constructed or planted anywhere on a Lot, if to do so may unreasonably interfere with the view from any adjacent or nearby Lot, except as Declarant may vary or exceed said height or location of any Improvement in accordance with its architectural and landscaping plans. In the event of a dispute between Lot Owners as to the obstruction of a view, such dispute shall be submitted to the ARC [architectural review committee] whose decision in such manner shall be binding. Any such obstruction shall, upon request of the ARC, be removed or otherwise altered to the satisfaction of the ARC by the Owner of the Lot upon which the obstruction is located. Each Owner by accepting a deed to a Lot hereby acknowledges that any construction by Declarant may impair the view of such Owner and hereby consents to such impairment."
The CC&R's define an "Improvement" as "all structures and appurtenances thereto of every type and kind, including but not limited to buildings, recreational facilities, outbuildings, walkways, bicycle trails, sprinkler pipes, garages, carports, roads, driveways, parking areas, fences, screening walls, retaining walls, stairs, decks, landscaping, hedges, windbreaks, plantings, planted trees and shrubs, poles, signs, exterior air condition and water-softener fixtures or equipment."
Plaintiff purchased his home in 2011. At that time, it was in poor condition, and plaintiff proceeded to make extensive repairs. Plaintiff turned to renovation of his backyard in 2014, at which point he began to complain to defendant that defendant's plants obstructed the ocean view from plaintiff's backyard. The plants at issue predated defendant's ownership of the home, and were originally planted in 1980 by a prior owner. After discussions with defendant failed to result in sufficient action to satisfy plaintiff, plaintiff began to complain to the homeowners association.
The matter was taken up by the ARC, which investigated, making various visits to the property and photographing the view. The issue was raised repeatedly over a period of years, resulting in a series of letters to defendant from the homeowners association.
The letters reflect increasing discipline imposed on defendant by the homeowners association. While the initial letter is a simple request to trim the offending plants, the letters that followed threaten fines, then give notice of a formal hearing, then impose a fine. Additional fines were imposed after the initial fine failed to induce compliance to the association's satisfaction.
According to plaintiff and the association, a pattern emerged: the plants would grow to obstruct plaintiff's view, plaintiff would complain, defendant would argue but eventually trim the plants, and then the plants would grow back and the cycle would begin again. Defendant viewed the complaints as repetitive and harassing and contended he had done all he could to comply.
In 2017, plaintiff sued defendant, seeking damages (later reduced to a request for nominal damages), an injunction requiring defendant to remove the view obstructions, and attorney fees, as authorized by the CC&R's. After a court trial, plaintiff was awarded $100 in nominal damages, enjoined defendant to "keep the shrubs on his side of the common wall . . . trimmed to a height not to exceed that of the wall," and awarded plaintiff $133,724.42 in attorney fees and $7,491.85 in costs.
DISCUSSION
The Injunction and the CC&R's
We review a trial court's decision to grant injunctive relief for abuse of discretion. (Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111, 1121.) But if the court's judgment involves interpretation of the CC&R's, we review that interpretation de novo. (Ibid.) The CC&R's are "liberally construed to facilitate the operation of the common interest development . . . ." (Civ. Code, § 4215.) We interpret them "in a way that is both reasonable and carries out [their] intended purpose . . . ." (Dieckmeyer v. Redevelopment Agency of Huntington Beach (2005) 127 Cal.App.4th 248, 259.) We give effect and meaning to every part of the CC&R's, if possible, and take the whole of the CC&R's together, with each clause helping to interpret the others. (Bear Creek Planning Committee v. Ferwerda (2011) 193 Cal.App.4th 1178, 1183.)
Defendant contends the injunction impermissibly expands the view rights granted to plaintiff by the CC&R's, at defendant's expense. The key point of dispute is the use of the word "planted" in the view obstruction section of the CC&R's quoted above. Defendant argues this word limits the obligation created by the CC&R's to avoid view obstruction to the initial act of planting vegetation. Because he did not "plant" the offending vegetation, defendant reasons, the CC&R's impose no further obligations on him, and he need not maintain or trim his plants to prevent a view obstruction.
But the remaining portions of the view obstruction section of the CC&R's support a different interpretation. The CC&R's place the power to decide view obstruction disputes in the hands of the ARC. And among their remedial powers is the power to order that any view obstruction be "removed or otherwise altered" to restore the adjoining owner's view, not just to forbid new construction or planting.
The ARC exercised this power with respect to defendant's plants, repeatedly requesting trimming or removal of various specific plants. But defendant failed to comply or complied in part but allowed the plants to regrow, and the problem repeatedly reoccurred, resulting in fines, and ultimately, this action. The trial court's power to order injunctive relief based upon the CC&R's is at least coextensive with the power of the ARC. Given the ARC's power to order removal or alteration of existing view obstructions, we find no error in the trial court's injunction, which does the same.
We reject defendant's contrary interpretation, which would forbid only the "planting" that could create a future view obstruction, as both absurd and unworkable. Plants grow over time, some quicker than others, and often in unpredictable ways. Many plants that might ordinarily be inoffensive could, if maliciously or negligently left untrimmed and encouraged to grow, eventually obstruct a neighbor's view.
Under defendant's interpretation, making determinations about view obstructions at the time of planting would require the ARC to (1) predict the future maximum possible growth of a plant, assuming a quite unneighborly complete lack of trimming or maintenance, (2) use this prediction to assess the subjective effect on the neighbor's view without even being able to see the mature plant, and (3) decide whether this hypothetical future mature plant would constitute an "unreasonable" view obstruction. This is no way to manage a community, and we conclude it is not the correct interpretation of the view obstruction section of the CC&R's.
We also reject defendant's argument that he has no obligation to maintain or trim his plants to prevent a view obstruction simply because he did not plant them. As defendant's counsel conceded at oral argument, the CC&R's are equitable servitudes that run with the land. (Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1384.) Thus, defendant has the same obligations under the CC&R's as his predecessor in title who planted the offending vegetation.
Evidence of an "Unreasonable" Obstruction
Defendant argues there was no substantial evidence of a finding by the ARC of an unreasonable obstruction of plaintiff's view. We review a challenge to the trial court's findings of fact for substantial evidence. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461.)
As the trial court noted in its statement of decision, the association's letters to defendant did not use the word "unreasonable" with respect to the view obstruction created by defendant's plants. But the letters did require defendant to remedy the obstruction, which implies the ARC determined the obstruction was unreasonable. Moreover, at least one witness (a former employee of the property manager) testified the ARC made this determination on at least one occasion. This evidence was sufficient to support the trial court's finding.
Past Behavior Versus Present or Future Conduct
Defendant contends he cured all violations relating to the view obstruction in his backyard before trial commenced. Thus, defendant argues, the trial court could not enter an injunction against him, as it purely related to past behavior, rather than present or future conduct. As set forth above, we review a trial court's decision to grant injunctive relief for abuse of discretion. (Ekstrom v. Marquesa at Monarch Beach Homeowners Assn., supra, 168 Cal.App.4th at p. 1121.)
The principal case upon which defendant relies for this proposition is California Service Station etc. Assn. v. Union Oil Co. (1991) 232 Cal.App.3d 44. In that case, the trial court entered an injunction against the defendant, forbidding it from implementing part of its franchise policy that violated a statute, even though the defendant stated at trial it did not intend to violate the statute and would "pursue a lawful policy in the future." (Id. at p. 57.) The Court of Appeal affirmed, concluding that, despite the defendant's protestations, it was within the court's discretion to issue an injunction. (Ibid.)
Here, we do the same. The evidence at trial reflected a pattern of recurring problems: defendant would trim his plants to eliminate the view obstruction in response to a complaint, then allow them to regrow and recreate the same problem. The trial court's conclusion that this pattern of behavior might reoccur despite defendant's most recent trimming was not an abuse of discretion.
The Statute of Limitations
Defendant argues plaintiff's claims are barred by the statute of limitations. Specifically, defendant argues the five-year statute of limitations under Code of Civil Procedure section 336 began running upon either the planting of the offending vegetation in 1980 or upon plaintiff's purchase of his property in 2011, and therefore expired before plaintiff filed this lawsuit in 2017.
"Questions concerning whether an action is barred by the applicable statute of limitations are typically questions of fact. [Citation.] But when 'the relevant facts are not in dispute, the application of the statute of limitations may be decided as a question of law. [Citation.]'" (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 713.) Questions of fact are reviewed for substantial evidence; questions of law on undisputed facts are reviewed de novo. (Pacific Shores Property Owners Assn. v. Department of Fish & Wildlife (2016) 244 Cal.App.4th 12, 34.)
Code of Civil Procedure section 336, subdivision (b) applies a five-year limitation period to any "'[a]ction for violation of a restriction,'" which includes the CC&R's in this case. (Pacific Hills Homeowners Assn. v. Prun (2008) 160 Cal.App.4th 1557, 1563.) The statute also specifies the limitations period "runs from the time the person seeking to enforce the restriction discovered or, through the exercise of reasonable diligence, should have discovered the violation." (Code Civ. Proc., § 336, subd. (b).)
Here, as discussed above, the "violation" at issue is defendant's allowing his plants to grow untrimmed and create an obstruction to plaintiff's view, despite the determination of the ARC that the plants, absent appropriate trimming, constituted an "unreasonable" view obstruction. As the trial court found, defendant's repeated cycles of trimming back his vegetation and allowing it to regrow each represented a separate "violation."
Substantial evidence supports the trial court's finding the most recent cycle began within the five-year limitations period. The letters admitted into evidence at trial show that the most recent cycle began with defendant's trimming his birds of paradise in late 2016 while allowing other plants to grow into view obstructions. Plaintiff's suit was filed approximately one year later, well within the five-year period.
Had the trial court awarded damages for defendant's past violations, we would need to consider the other arguments raised by plaintiff, including equitable tolling, the continuing violation doctrine, the continuous accrual theory, any special accrual rules applicable to causes of action for breaches of CC&R's, and forfeiture. But plaintiff's remedies were limited to nominal damages, injunctive relief, and attorney fees, all of which are available solely based upon the latest violation. Thus, we need not reach the other arguments raised by plaintiff, and decline to do so.
Exhaustion of Administrative Remedies
Defendant argues plaintiff failed to exhaust his administrative remedies because plaintiff failed to pursue the most recent violations with the ARC before filing this action. Defendant raises this argument for the first time in his reply brief on appeal.
As a preliminary matter, we ordinarily decline to consider arguments raised for the first time on appeal, and to consider arguments raised for the first time in the reply brief. (In re Campbell (2017) 11 Cal.App.5th 742, 757 [rejecting arguments raised for the first time on appeal]; Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295 [rejecting arguments raised for the first time in the reply brief].)
Moreover, defendant cites no authority for the proposition that the concept of exhaustion of administrative remedies (which ordinarily applies to governmental agencies) would apply in the context of a homeowners association and CC&R's. The CC&R's themselves also expressly permit enforcement by "appropriate legal proceedings by any Owner," with no mention of prior proceedings before the association as a prerequisite.
In any event, plaintiff repeatedly submitted the matter to the ARC, which found for plaintiff, but was unsuccessful in compelling defendant to consistently keep his plants trimmed. This effort satisfied any obligation plaintiff may have had to exhaust his remedies with the association before proceeding to court.
Attorney Fee Award
Defendant contends reversal of the judgment on the merits also compels reversal of the attorney fee award in favor of plaintiff. Defendant does not challenge the reasonableness of the fees. Because we affirm the judgment, we also affirm the award of attorney fees.
DISPOSITION
The judgment and order are affirmed. Plaintiff is entitled to costs on appeal.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. GOETHALS, J.