Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and post-judgment orders of the Superior Court of San Diego County No. 37-2007-00079470- CU-OR-EC, Laura Halgren, Judge.
BENKE, J.
In this case the trial court granted a motion for summary judgment in favor of plaintiff and respondent San Diego Country Estates Association, Inc. (the Association), and against defendant and appellant John B. Ward III, as trustee of his revocable inter vivos trust and as an individual. The court awarded costs and fees to the Association and issued a mandatory injunction requiring that Ward tear down a retaining wall he had constructed on his property.
On appeal Ward argues summary judgment was improper because triable issues of fact remain as to whether the Association acted reasonably in ordering him to remove the wall and whether the Association afforded him his right to due process before ordering him to remove the wall. Ward also argues the trial court erred in entering judgment, issuing a mandatory injunction and imposing costs and fees against him as an individual, rather than solely in his capacity as trustee of his revocable inter vivos trust.
We conclude the trial court properly granted the motion for summary judgment. We also find that the judgment, including the awards of fees and costs, was properly entered against Ward, both as a trustee and as an individual. Thus, we affirm the judgment and post-judgment orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. San Diego Country Estates Association
San Diego Country Estates (Country Estates) is a large planned community of 3, 451 residential lots in Ramona, California. Country Estates's large residential lots are located in a rural setting surrounded by horse trails and rolling hills.
The Association is made up of Country Estates's homeowners. The Association and each homeowner member must abide by the terms and conditions of various governing documents of the Association. In particular, the governing documents include covenants, conditions and restrictions (CC&R's) which are binding on all Country Estates's homeowners.
B. Land Use Regulation within the Association
Under Country Estates's CC&R's, the Association's Environmental Control Committee (ECC), Community Relations Department (CRD) and the Association's Board of Directors (Board) work in different capacities to formulate, evaluate and enforce Country Estates's land use regulations.
l. ECC
Country Estates's CC&R's prohibit homeowners from building on its property unless they have the express approval of the ECC. This prohibition includes pre-construction activities, such as grading of hillsides, and the creation of fences and walls.
Article 4, section 8 of the CC&Rs requires: "No building, fence, residence, dwelling unit or other human-made structure of any type shall be constructed or maintained upon any lot until the plans and specification thereof, the appearance and color thereof, the height and size thereof... shall have been approved by the [ECC]."
Article 6, section 18, states: "No Owner of any Lot shall in any manner alter, modify or interfere with the grades, slopes and drainage on any Lot or on the Common Area without the express written permission of the [ECC] and then only to the extent and in the manner specifically approved." Article 6, section 10, says: "No fences, ... walls or hedges shall be erected or permitted upon the properties, except as approved by the ECC."
Through its approval process, the ECC seeks to uphold and enforce the design requirements of Country Estates as outlined in ECC rules. Generally, the ECC's design requirements attempt to protect the "environment, the beautiful natural setting and relaxed atmosphere" of Country Estates. More specifically, with respect to hillside lots, such as Ward's, the ECC's regulations state: "Hillside lots should... preserve the natural and varying terrain of [Country Estates].... It is important to remember that the beauty of [Country Estates] is in the land and its natural features and that the architecture should complement and enhance, rather than compete with or destroy this beauty."
Once a member submits a construction proposal, the ECC discusses the proposal and makes a preliminary decision to approve or reject it. If a member's proposal is incomplete, does not fully describe the proposed work, or does not comport with its rules, the ECC may reject it. If the proposal is not approved for any reason, the ECC gives the homeowner the opportunity to correct and resubmit the proposal. After public comment, the ECC meets again to review the homeowner's final plan and makes a final decision on the proposed construction. The final ECC decision must be made in writing. If a member objects to any ruling or action by the ECC at any time during the approval process, he or she may request an ECC hearing or may appeal an ECC decision to the Board.
2. Board
The Board hears appeals from members seeking to challenge an ECC decision. The Board will provide the member with an opportunity to be heard, meet with the ECC to discuss its decision, and review the member's file, including pictures or plans, and comments from neighbors, before deciding whether to uphold or modify an ECC decision.
3. CRD
While the ECC initially approves or rejects proposed construction projects and the Board hears appeals from ECC decisions, the CRD inspects properties and issues citations to members who have violated the CC&R's. The CRD cites members for violations, including construction without approval from the ECC and encroachment on horse trail easements.
Once a member is cited, if the violation is not corrected, the CRD summons the member to a hearing before the Community Relations Committee. At the hearing, the cited member may present evidence regarding the violation. Following the hearing, the Community Relations Committee informs the member what, if anything, needs to be done in order to correct any violation and comply with the CC&R's. If corrective action is needed and the cited member fails to correct the violation, the Community Relations Committee may fine the member.
C. The Ward Controversy
The John B. Ward Trust (the trust) owns two adjoining lots within Country Estates. The trust's lots are located on a steep hillside with neighbors on either side and below him. Ward's home was constructed on one of the lots in 1996 after he received approval of construction plans from the ECC.
In the years following construction of his home, Ward followed Association procedure on two additional construction projects on his property. In 2000 Ward constructed a room addition to his house after submitting plans and receiving approval from the ECC. In 2004 Ward constructed a pool and patio on his property, again, after submitting plans and receiving approval from the ECC.
However, in May 2006, without submitting any plans or receiving any approval from the ECC, Ward began to grade part of his property in order to prepare for construction of a retaining wall and tennis court. On May 9, 2006, after the grading commenced, the CRD cited Ward for grading without prior approval and instructed him to "[c]ease and desist grading until [he had] approval by the ECC." Because Ward did not comply with the May 9, 2006 citation, on May 18, 2006, the CRD sent Ward a letter instructing him once again to cease and desist from grading on the property until he had an ECC permit. The CRD also instructed Ward to not encroach on the horse trail easement at the rear of his lot. The ECC's letter notified Ward he would be subject to fines if he did not correct the violation.
Because Ward did not comply with the initial citation or later letter, on June 6, 2006, Ward was asked to appear at a Community Relations Committee hearing. At the hearing Ward informed the committee of his plans to build a retaining wall on his graded property. On July 1, 2006, the Community Relations Committee advised Ward that his project would be in compliance, and could continue, if he submitted a project plan to the ECC and the plan was approved. The committee notified Ward that if he failed to submit plans to the ECC, he would be subject to fines of up to $250 a month.
In early 2007 the CRD began to fine Ward for once again engaging in unapproved construction. On April 27, 2007, Ward expressed confusion in a letter to the CRD. (AA 331)! In his letter, Ward claimed that he had sent plans to the ECC almost a year earlier, and attached a copy of his plans to his letter. The plans depicted a retaining wall 10 feet high and 55 feet long and a tennis court above the top of the wall.
After Ward sent his plans to the CRD, the ECC, which claimed it had not received any plans, met at Ward's property on June 19, 2007, to inspect the construction. Instead of a 10-foot high and 55-foot long retaining wall, the ECC encountered a completed 20-foot high and 120-foot long retaining wall.
On July 11, 2007, the ECC disapproved both Ward's tennis court and retaining wall and informed Ward of its concerns. Specifically, because Ward never obtained county permits for construction, the ECC was concerned about the safety of the wall. The ECC also expressed its concern that the wall encroached on the horse trail easement.
The ECC explained to Ward in detail a number of steps he would need to take in order to gain approval of his retaining wall and tennis court. These steps included obtaining all requisite permits for the retaining wall and tennis court, and providing the ECC with professional engineering drawings. The ECC explained that such documents were necessary in order to determine whether the wall was in compliance with county safety regulations and would not subject downhill neighbors to potential damage or danger. The ECC instructed Ward to submit the necessary permits and detailed plans by September 1, 2007.
On July 12, 2007, Ward appealed the ECC's rejection of his tennis court plan to the Board. Ward did not formally appeal the ECC's rejection of his retaining wall. At the appeal hearing, Ward presented his case and explained his construction plans. After hearing from Ward, the Board reviewed information from the ECC pertinent to the various construction projects undertaken by Ward, comments from neighbors, a circulated pamphlet about the project produced by concerned neighbors and photographs of the construction.
On July 31, 2007, the Board unanimously denied Ward's appeal. In addition to denying Ward's appeal of the ECC's tennis court issue, the Board determined that his unpermitted grading activities and unpermitted installation of the retaining wall posed a threat to his neighbors. Accordingly, the Board demanded that, within 30 days Ward "restore the property to its original condition and revegetate the area to prevent erosion and flooding to downhill owners.... The Board furthermore requests that you submit to the ECC your restoration plans for review forthwith."
Ward did not comply with the ECC's demand that he restore his property to its original condition.
D. Litigation
On December 19, 2007, the Association filed a lawsuit against Ward both as an individual and as trustee of the trust. The Association ultimately asserted causes of action against Ward for breach of the governing documents and declaratory relief.
In response to the Association's complaint, Ward filed a cross-complaint against the Association and against the individual volunteer members of the Association's Board and ECC. Ward filed his cross-complaint in his capacity as trustee of the trust. The Association filed a special motion to strike Ward's cross-complaint under Code of Civil Procedure section 425.16. Ward did not oppose the motion to strike, but did object to the proposed judgment because it listed Ward as personally responsible for fees and costs.
The court held a hearing on Ward's contention that he should not be held personally responsible for the judgment because he had filed the cross-complaint in his capacity as trustee. At the hearing, the court considered Ward's objections, but ultimately determined Ward was individually responsible for the $10,845 in fees and costs the court awarded the Association.
The Association then filed a motion for summary judgment on its complaint. Ward opposed the motion, alleging triable issues of material fact remained. After determining there were no triable issues of material fact, the court granted the Association's motion for summary judgment.
Following the order granting summary judgment, Ward objected to the proposed judgment, claiming once again that he should not be personally liable on the judgment for any costs or fees. The court allowed further briefing on the issue, and held an additional hearing on the merits. After the hearing, the court rejected Ward's contention, entered judgment against Ward, both individually and as a trustee, and ordered that Ward stop construction and remove the retaining wall from his property.
DISCUSSION
I
Summary Judgment
Ward contends summary judgment was improper because triable issues of material fact remain as to whether the Association acted reasonably and followed its own procedures when it ordered him to remove his wall. We find no error.
A. Standard of Review
We review a summary judgment ruling de novo. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 832.) "In practical effect, we assume the same rules and standards which govern a trial court's determination of a motion for summary judgment." (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1079.) Thus, on appeal we determine whether the opposing party has shown the existence of a triable, material factual issue. (Koebke v. Bernardo Heights Country Club, supra, 36 Cal.4th at p. 832.) We "liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of the party." (Wienerv. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) However, in order to prevail, the opposing party the motion must set forth "specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(1).) In asserting there are triable issues of material fact it is not enough to argue "mere allegations or denials." (Ibid.)
B. Common Interest Developments
The law regulating common interest developments such as Country Estates is in many respects settled. Civil Code section 1354, subdivision (a), provides: "The covenants and restrictions in the declaration [of a common interest development] shall be enforceable equitable servitudes, unless unreasonable.... Unless the declaration states otherwise, these servitudes may be enforced by... the association...." The restrictions set out by the governing documents of a common interest development can be enforced "unless they are wholly arbitrary, violate a fundamental public policy, or impose a burden on the use of affected land that far outweighs any benefit." (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 382.)
Overall, California courts have adopted a deferential approach when dealing with decisions made by governing boards of common interest developments. In general, "courts will uphold [those decisions]... so long as they represent good faith efforts to further the purpose of the common interest development, are consistent with the development's governing documents, and comply with public policy." (Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th 361, 374.) In particular, CC&R's vest broad discretion in homeowners associations or Boards to grant or withhold consent to construction. (Dolan-Kingv. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 977.)
However, when reviewing an association's decision to compel a homeowner to stop or remove construction, courts require the association show more than just a violation of CC&R's. (Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, 772.) In addition to showing a violation of a covenant, it is incumbent on the association to "show that it has followed its own standards and procedures prior to pursuing such a remedy, that those procedures were fair and reasonable and that its substantive decision was made in good faith, and is reasonable, not arbitrary or capricious." (Ibid.) When a homeowner questions the reasonableness of an association's action, we consider "(1) whether the [action]... is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner." (Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670, 683-684 .)
We deny Ward's request for judicial notice of a permit and inspection record issued by the County of San Diego after the Association filed its lawsuit. The request is not supported by any statement indicating that the subject records were considered by the trial court or how they are relevant to his appeal. (See Cal. Rules of Court, rule 8.252(a)(2).)
C. The Association's Enforcement Activities
Although Ward does not question the validity of the Association's CC&R's, he contends triable issues of material fact as to (1) whether the Association followed its own procedures before ordering him to remove the wall and (2) whether the Association acted reasonably and fairly in ordering that he remove the retaining wall and restore his property to its original condition.
1. Association Procedures
Ward contends summary judgment should be denied because there was a triable issue of material fact as to whether the Association failed to follow its own standards and procedures. Ward argues the Association did not follow its own procedures because Ward submitted his plans to the ECC for the retaining wall and the Association only rejected his plans because of a lack of prior approval from the ECC. Even in the light most favorable to Ward, neither of these factual contentions raise a triable issue of fact.
Even if we accept Ward's contention that he submitted his plans to the ECC before constructing the retaining wall, this does not raise a triable issue of fact. The CC&R's are clear that approval of plans is required before any construction, or pre-construction activity like grading, may occur. The submission of these plans without subsequent approval is not enough to show that the Association did not follow its own standards and procedures. Ward does not dispute that he never received approval from the ECC for any of the construction projects related to this case.
Further, Ward alleges that the Association failed to follow its own procedures because he contends the only reason the Association rejected the wall was the lack of prior approval of the wall. (See Ironwood Owners Assn. IX v. Solomon, supra, 178 Cal.App.3d 766.) Here, the violation of the CC&R prohibiting construction without prior approval was never the sole reason given for the rejection of Ward's construction projects. In addition to CC&R violations, the ECC and the Board repeatedly expressed concern that there were no county permits for the wall, the wall was potentially a safety hazard, Ward had stripped the hillside of vegetation, grading had caused changes in drainage patterns, neighbors had voiced several concerns, the size of the project was unprecedented, the tennis court would cause sound and light pollution and the construction encroached on a horse trail easement.
In short, even in viewing the record most favorably to Ward, there are no triable issues of fact as to whether the Association followed its own procedures.
2. Reasonableness
Ward also contends that summary judgment should have been denied because there was a triable issue of material fact as to whether the Association acted reasonably. Ward argues that the Association acted in an arbitrary and capricious manner when it rejected his construction project and ordered him to remove the wall.
To determine whether the Association acted unreasonably in rejecting Ward's plans and ordering him to remove the wall, we consider: (1) whether the reason for "withholding approval... [is] rationally related to the protection, preservation and proper operation of the property and the purposes of the Association as set forth in its governing instruments" and (2) whether the power was exercised in a "fair and nondiscriminatory manner." (Laguna Royale Owners Assn. v. Darger, supra, 119 Cal.App.3d 670, 680.) Therefore, in order for Ward to show summary judgment was improper because the Association acted unreasonably, there must be a factual dispute as to whether the Association's behavior was rationally related to the protection, preservation or proper operation of Country Estates and whether the Association acted in a fair and non-discriminatory manner.
a. Protection of Property
First, the actions of the Association rationally relate to the protection of property in Country Estates. The Association continuously raised concerns that Ward had encroached on the horse trail easement to the rear of his house. The importance of the protection of horse trail easements is laid out in the governing documents in order to maintain the rural character of Country Estates. Further, the Association's actions rationally relate to the protection of property because there were ongoing safety concerns with the construction of the non-permitted retaining wall. The ECC believed the wall was unstable and it was concerned the wall could threaten the destruction of property below. Additionally, the Association's actions were rationally related to the protection of Country Estates's property in that the project caused dramatic changes to drainage patterns. The Ward property is on a steep hillside and because Ward stripped the hill of vegetation in his grading, the Association was legitimately concerned the change in drainage patterns would subject downhill neighbors to water and related damage.
Next, the Association's behavior was rationally related to the preservation and proper operation of Country Estates. The purpose of the Association's land use restrictions is to protect the "environment, the beautiful natural setting and relaxed atmosphere" of Country Estates. The Association acted in a way that sought to preserve the "the beautiful natural setting" of Country Estates. While the Association allows homeowners the autonomy to construct on their property, this freedom is constrained by the approval requirements set out in the governing documents and the Association's ability to stop or remove construction that is not approved. These rules and regulations preserve Country Estates by ensuring that construction by one homeowner does not negatively affect Country Estates as a whole.
Significant among the preservation concerns laid out in the governing documents is the protection of horse trail easements that run throughout Country Estates. Additionally, the ECC sets out specific rules in order to maintain the integrity of hillside lots within Country Estates. Specifically, the ECC rules provide: "Hillside lots should... preserve the natural and varying terrain of [Country Estates]" Grading an entire hillside and erecting a massive retaining wall directly conflicts with the goal of preservation outlined in the governing documents. In sum, the Association's actions were rationally related to preservation in that they were seeking to protect the character of Country Estates by preventing an illegal encroachment on a horse trail easement and attempting to maintain the topography and protect vegetation.
b. Fairness
Finally, Ward fails to raise a material factual issue as to whether the Association failed to act in a fair and non-discriminatory manner. As mentioned previously, homeowners associations are given deference by the courts as long as they act in good faith and follow their own rules and procedures. (See Ironwood Owners Assn. IX v. Solomon, supra, 178 Cal.App.3d at p. 772.) Here, the Association did just that. While Ward contends he was treated unfairly, he fails to offer any evidence of how the Association discriminated against him. Instead, Ward relies on unsupported allegations of unfair treatment.
As evidence of discriminatory behavior, Ward cites another retaining wall that was built without prior approval but has been allowed to remain. Ward claims this wall is similar to his wall, but does not provide any actual details as to the history or circumstances of the walls that would suggest the situations were analogous enough to show that Ward was treated unfairly. It is not inferable from the evidence presented that the Association had any of the same numerous concerns—safety, encroachment, drainage—that the Board had with respect to Ward's wall. In fact, nothing in the record contradicts the Association's evidence that the other wall is approximately 10 feet shorter than Ward's wall. Thus, the evidence offered by Ward is not enough to show that he was treated unfairly.
The only other evidence that Ward provides to show that the ECC and the Board behaved in an unfair and discriminatory manner were comments from former organization members complaining that the Association did not always enforce CC&R's. But such broad and general statements do not support the argument that Ward himself was discriminated against. Thus, Ward fails to raise a triable issue of fact as to whether he was treated unfairly or discriminated against.
Contrary to Ward's contentions, the undisputed facts show the Association was more than fair throughout the course of this controversy. Given the large scale of Ward's construction project, the numerous safety concerns, the encroachment of the wall on the horse trail, numerous citations from the CRD and Ward's continuous refusal to comply with any of the rules and regulations, the Association's actions were not unfair or discriminatory. The undisputed facts show that the various organizations of the Association continuously tried to work with Ward in order to get his projects approved, and gave him multiple opportunities, both before and after the wall was constructed, to obtain approval. Even viewing the record in the light most favorable to Ward, the evidence shows the actions of the Association were rationally related to the protection of property and the preservation of Country Estates, and the Association did not act in an unfair or discriminatory manner.
D. Due Process
Ward also contends summary judgment was improper because there is a triable issue of material fact as to whether the Board afforded him due process before it ordered the wall removed. Ward argues the Board did not inform him that the retaining wall would be under review at the Board meeting and so he did not have sufficient notice or a meaningful opportunity to be heard on the issue.
The Board was required to act in a reasonable manner before ordering Ward to remove the wall. (See Ironwood Owners Assn. IX v. Solomon, supra, 178 Cal.App.3d at p. 772.) In following its own thorough procedures, the Board acted reasonably. In fact, the undisputed facts show the Board provided Ward with the fundamental components of due process, that is, the Board provided Ward with ample notice and a meaningful opportunity to be heard before ordering him to take down the wall.
First, the Board and the Association provided Ward with sufficient notice before the Board's decision to order the wall removed. Throughout the course of this controversy, Ward received continuous warnings, and citations from the various governing organizations of the Association that he was in violation of CC&R's. Despite these warnings and citations, and despite the fact that he had never received approval from the ECC, Ward continued with construction. Ward knew of the CC&R requirements and ECC procedures as he previously completed two construction projects in full compliance with Association rules and regulations. Yet Ward continuously refused to comply with the requests of the Association. While Ward only appealed the rejection of the tennis court plans to the Board, the tennis court sat on top of the retaining wall and both the wall and the tennis court were depicted in the plans Ward submitted to the ECC. Given that circumstance, Ward was given ample notice before the Board ordered the wall removed.
Further, the undisputed evidence shows the Board and the other organizations of the Association provided Ward with numerous and meaningful opportunities to be heard. At the Board hearing, Ward was able to present his entire plans for construction. Ward was also given opportunities throughout the course of the controversy to meet with the ECC and the Community Relations Committee in order to discuss his concerns. The Board provided Ward with an opportunity to speak and defend his project. Nothing further was required under these circumstances.
Because Ward failed to raise a triable issue of material fact as to whether the Board acted reasonably and fairly, summary judgment was proper.
II
Individual Liability
Ward contends the trial court erred when it entered judgment, ordered costs and fees, and issued a mandatory injunction against Ward individually, rather than solely against Ward as trustee to the John B. Ward III Trust. We disagree.
Probate Code section 18001 provides: "A trustee is personally liable for obligations arising from ownership or control of trust property only if the trustee is personally at fault." Here, the uncontroverted evidence in the record shows that Ward personally controlled all the improvements to his property and controlled the litigation initiated against him and the trust. Moreover, the record is clear that his actions were, at all times, intentional. Thus, the trial court properly imposed individual liability on him. (See Haskett v. Villas at Desert Falls (2001 90 Cal.App.4th 864, 878.)
DISPOSITION
The judgment and post-judgment orders are affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.