Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SC069487 of Los Angeles County. John Segal, Judge.
Funsten & Franzen and Don Erik Franzen for Plaintiffs and Appellants.
Robert S. Gerstein; Law Offices of Christopher Rolin and Christopher Rolin for Defendants and Respondents.
Judith A. Gelfand for Amici Curiae Judith A. Gelfand and Wayne Marcus.
WOODS, J.
INTRODUCTION
This is the second time this court has considered this case on appeal. In the first appellate decision in this matter, we reversed the decision of the trial court and remanded the matter for retrial, the trial court having denied the plaintiffs relief on their action to enforce the protection of the covenants, conditions and restrictions (“CC&Rs”) pertaining to view preservation. The first appeal was entitled Zabrucky v. McAdams (2005) 129 Cal.App.4th 618. The first appeal will hereafter be referred to as Zabrucky I. This second appeal involving the same parties will hereafter be referred to as Zabrucky II.
The realty which is the center of the dispute in both appeals is located in the Marquez Knolls area of the Pacific Palisades and occupies a commanding and panoramic view of the seashore and ocean. Like the decision in Zabrucky I, the case comes before this court with a joint stipulation of many facts material to this action, which we hereafter repeat verbatim. The judgment of the trial court is also buttressed with a written statement of decision.
For the reasons hereafter stated we affirm the decision of the trial court.
FACTUAL AND PROCEDURAL SYNOPSIS
Joint stipulation of facts.
The joint stipulation of facts is found in the clerk’s transcript on appeal as follows:
“1. Since 1993, Plaintiffs were and now are the owners and in possession and control of a single family residence and real property situated in the County of Los Angeles, State of California, known as 1208 Turquesa Lane, Pacific Palisades, California 90272. Said property is legally described at Lot 35, Tract 26065, APN: 4420-24-07. . . .
“2. A material factor considered at the time of purchase by Plaintiffs was the unobstructed ocean view of the Pacific and the CC & Rs for the subject tract protecting unobstructed view rights. . . .
“3. Defendants Lloyd McAdams and Heather Baines were and now are the owners and in possession and control of that single family residence and real property situated in the County of Los Angles, State of California and known as 1200 Turquesa Lane, Pacific Palisades, California 90272. This real property is within and a part of Tract 26065 in the County of Los Angeles, State of California, as per map recorded in Book 699, Pages 51-56 of maps of said county. . . .
“4. These properies adjoin each other at a northern diagonal boundary.
“5. On or about June 20, 1963, Marquez Knolls, Inc., the owner of all of the lots in the tract in which Plaintiffs’ and Defendants’ properties are located, recorded a Declaration of CC & Rs, a true and correct copy of which is attached to this Stipulation as Exhibit ‘1’ . . . .
“A. Covenant No. 1 provides: [¶] ‘All said lots shall be known and described as residential lots, no structure shall be erected, altered, placed or permitted to remain on any building plot other than one detached single family dwelling not to exceed one story in height and a private garage, for not more than three cars; except, where, in the judgment of the Declarant and approved by the Architerctual Committee, one two story single-family dwelling may be erected where said dwelling will not detract from the view of any other lot.’ . . . .
“B. Covenant No. 11 provides: [¶] ‘No fences or hedges exceeding three feet in height shall be erected or permitted to remain between the street and the front setback lines nor shall any tree, shrub or other landscaping be planted or any other structures erected that may at present or in the future obstruct the view from any other lot, and the right of entry is reserved by the Declarants to trim any tree obstructing the view of any lot.’ . . . .
“6. In or around June, 1999, Defendants notified Plaintiffs of their desire to add a structural addition to their residence along the adjoining border of the parties’ properties. . . .
“7. On March 21, 2000, March 6, 2001 and on November 6, 2001, Plaintiffs notified Defendants in writing that their proposed structural addition violated the Marquez Knolls CC & Rs. . . .
“8. At no time since purchasing their property in 1994 have Defendants McAdams and Baines planted any additional trees on their property or added any other additional landscaping to their property. . . .
“9. Defendants desired to build, and have since proceeded with construction of, an addition to their home on their property adjacent to Plaintiffs’ property. . . .
“10. There is a row of trees at the bottom of their property which has been periodically pruned and maintained by Defendants. . . .
“11. At the time Defendants started discussions with Plaintiffs regarding the scope of their addition, they constructed a framework of the proposed addition on their property to demonstrate its dimensions, elevations and configurations. . . .
“12. On or about October 4, 2001, Defendants notified Plaintiffs in writing of their intention to commence construction of their addition consistent with the framework dimensions and elevations. . . .
“13. However, Defendants refrained from commencing such construction until the conclusion of the first trial in this case, which commenced on December 2, 2002. . . .
“14. On or about April 27, 2003, judgment was entered in this action denying all relief to Plaintiffs on their complaint and all relief to Defendants on their cross-complaint. . . .
“15. On or about May 7, 2003 and on or about May 21, 2003, Plaintiffs notified Defendants in writing that they were acting at their own peril in proceeding with their proposed structural addition while Plaintiffs pursued their appeal of the trial court judgment. . . .
“16. On or about May 22, 2003, Plaintiffs filed an appeal from the judgment. Defendants did not file a cross-appeal. . . .
“17. In or around the summer of 2003, Defendants commenced construction of their addition and have since essentially completed such construction. . . .
“. . . . .
“20. On or about May 18, 2005, the Second District Court of Appeal reversed the judgment of the trial court. . . .”
Summary of trial testimony.
John Zabrucky.
John Zabrucky (“John”) one of the plaintiffs and appellant herein testified as follows: after an academic career in art, he started a motion picture props business; after a year of searching he and his wife decided to buy 1208 Turquesa Lane because it had an extensive view that included mountains, ocean and ended in a “rolling hill” beyond which was the Santa Monica Bay; there were no buildings or structures in the foreground of their view; there were no walls or rooftops in the foreground of the view, “just nature”; he and his wife built an infinity pool to take advantage of this view that just looked out to the “ocean and sky”; in 1998 the pool cost $150,000; they also remodeled the backyard decking to take advantage of their pristine view at a cost in 1998 of $100,000; John described what he now sees, after the defendants completed their addition in the following terms: “There’s a structure. . . . It looks like the back of a warehouse, and I’m looking at tarp strips. I’m looking at numerous skylights. I’m looking at exhaust pipes from bathrooms.” If he had known defendants, McAdams/Baines, would build where they did, he would never have bought the property at all.
Stewart Gilman.
The original architect for defendants, McAdams/Baines, was Stewart Gilman (“Gilman”). He testified as follows: the Certificate of Compliance for the City of Los Angeles was prepared at his direction and described the addition as having “2” stories or “levels”; he admitted that he described the addition as “first and second story addition” having “two levels”; among the “aesthetic and social” needs of defendants was a terrace above the bedrooms and off the second floor/office, which was to “enjoy the views”; he also acknowledged that defendants made no efforts to find alternatives that would avoid obstructing the view of the Zabruckys; they did not investigate building on the west side of the property; they did not investigate swinging the addition on the east end to take it out of the line of sight from the Zabrucky residence.
Lloyd McAdams.
Called as an adverse witness, defendant McAdams testified that the addition to his existing house involved a lower level of approximately 1,000 square feet and an upper level of approximately 1,100 square feet, making a total of 2,100 square feet of new structure; he agreed that the attractive view from his property was among the reasons they bought it; he admitted the view from his property is unobstructed by any structures in the foreground; admitted that the views enjoyed by the Zabruckys when they bought their home “should be subject to reasonable protection”; he never asked Gilman to look into any other ways to expand his house that would not block the view of the Zabruckys.
Michael Kovac.
Plaintiff’s expert architect Michael Kovac (“Kovac”) testified that several alternative designs could have been used by defendants that would have given them just as much new structure without blocking the views of the Zabruckys; that “. . . the addition to the McAdams/Baines property was done in the almost – I don’t want to say offensive, but close to that. . . . It’s a completely featureless, blank wall, and the roof is a – is a tarpaper roof with exposed kind of black seams, which is absolutely the least expensive way one could put a roof on a property, and it’s unavoidable to look at. If you’re a Zabrucky and want to look at the ocean, you can’t not look at this really sort of the shockingly bad roof and wall, . . .” and “. . . the Ocean is what they’re trying to look at, and I felt like from most portions of the terrace area of Zabrucky, roughly half to a third of the ocean view is either completely taken out or tarnished in such a way that I wouldn’t want to look at that portion of it.” He also testified that the lower level of the McAdams/Baines addition was a “story” under the Los Angeles Municipal Code because it was a habitable space (not a basement or storage area).
Several other experts testified about view obstruction and estimated the magnitude as ranging from 3 percent to 30 to 50 percent depending on where one was observing.
Daniel Poyourow.
Defendants’ other expert Daniel Poyourow (“Poyourow”) admitted to an overall 10 percent obstruction of the plaintiffs’ views, not just ocean views. Depending on where plaintiffs’ deck once stood, such as from the pool area, it was closer to 17 percent and acknowledged the addition “obstructs some foliage and some ocean.”
Laurence Sommer.
Laurence Sommer (“Sommer”) was called and testified on behalf of the Zabruckys pertaining to damages as a result of the view interference. Sommers was a real estate appraiser and testified that based on his data the house with its original view intact was worth $4 million; he set the overall view value between $800,000 and $1 million and the loss of value caused by defendants’ addition at between $150,000 and $200,000 or between 3 percent and 5 percent of the house; and his view loss calculation was based on a paired sale analysis with six different properties from the Palisades area.
Poyourow’s analysis of Sommer’s testimony.
Defense expert Poyourow had no independent data of his own; he agreed the value of the house was between $3.5 million and $4 million; that the view was worth $900,000; that there was a loss in value, estimated the loss to be between $5,000 and $15,000; he allocated 50 percent of the view value to the house, while acknowledging the interior of the house enjoyed no significant views; of the $450,000 remaining he deducted $150,000 as “ocean view” which excluded sand and surf or “queen’s necklace” component; to this sum a 10 percent figure representing an obstruction calculation which the trial court found to be “more credible.”
John Murdock.
John Murdock (“Murdock”), an attorney, testified for plaintiffs that he had acted as an attorney for a group of homeowners who objected to the original construction of the house now owned by defendants back in 1987; a negotiation and agreement was reached between the builder and the neighbors which was authenticated and introduced into evidence as Exhibit 42; that the purpose of the agreement at the time was “to control the overall dimensions of the property that was being built at 1200 Turquesa.”
Renate Hecht.
Renate Hecht (“Hecht”), a neighbor, testified on behalf of defendants about the location and position of the decking at the Zabrucky residence before they bought the property in 1993.
Heather Baines.
Heather Baines (“Baines”), wife of McAdams, testified with regard to certain conversations with Mr. Zabrucky in which he informed her that he objected to the proposed house expansion.
Decision of the trial court.
Judgment for the defendants was entered by the trial court on March 17, 2006, and based on a written statement of decision revealed it had reached two conclusions as follows: The addition of the defendants did not violate paragraph 11 of the CC&Rs because the “obstruction” was “minimal” and only affected plaintiffs’ view of “the Palisades Bluffs not the Pacific Ocean” and secondly the trial court stated that what “one story” means depends on context and the more reasonable interpretation of Covenant No. 1 is that it does not simply mean more than one level of habitable space (or more than one story measured from the bottom of the home itself) but deals with the height of the dwelling above grade. Thus focused, the trial court concluded the McAdams’ addition was not violative of Covenant 1 because the addition was not really more than one story and, in any event, did not unreasonably detract from the plaintiffs’ views.
Plaintiffs filed a timely notice of appeal on May 15, 2006, no notice of entry of judgment having been given.
DISCUSSION
We now focus our attention on Zabrucky I which we judicially notice at this time pursuant to section 451, subdivision (a) of the Evidence Code. As correctly pointed out by plaintiffs in their opening brief, this court reversed and inferred the word “unreasonable” to paragraph 11 of the Marquez Knolls CC&Rs to avoid a potentially absurd result such as obtained in White v. Dorfman (1981) 116 Cal.App.3d 892, in which the trial court, in construing similar language, took it literally to mean nothing could be built on a vacant lot. In view of this court’s interlineation, paragraph 11 of the CC&Rs would now read as follows: “No fences or hedges exceeding three feet in height shall be erected or permitted to remain between the street and the front setback lines nor shall any tree, shrub or other landscaping be planted or any other structures erected that may at present or in the future unreasonably obstruct the view from any other lot, and the right of entry is reserved by the Declarants to trim any tree obstructing the view of a lot.” (Zabrucky I, supra, 129 Cal.App.4th at p. 629; italics added.)
Standard of review.
Defendants correctly state the general standard of appellate review as follows in their respondents’ brief: “All factual questions regarding the application of the CC&Rs are resolved in accordance with the substantial evidence standard. If there is substantial evidence on the record taken as a whole, ‘the appellate court must affirm . . . even if the reviewing justices personally would have ruled differently. . ., and even if other substantial evidence would have supported a different result.’ [(Rupf v. Yan (2000) 85 Cal.App.4th 411, 429, fn. 5; italics in original.)] A view taken by the trier of fact qualifies as ‘independent and substantial evidence.’ [(Vaughn v. DeKreek (1969) 2 Cal.App.3d 671, 678.)]”
It is undisputed that the trial court with the permission of counsel visited the scene of the dispute.
However, we further note that interpretation of the CC&Rs is a question of law subject to independent or de novo review. See our first Zabrucky opinion (at p. 622), as well as Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 974, as authority for this proposition. The next section of this opinion is based upon our own independent construction of the CC&Rs.
Construction of the CC&Rs pertaining to Covenant No. 1.
We begin by quoting Covenant No. 1 [“All said lots shall be known and described as residential lots, no structure shall be erected, altered, placed or permitted to remain on any building plot other than one detached single family dwelling not to exceed one story in height and a private garage, for not more than three cars; except, where, in the judgment of the Declarant and approved by the Architerctual Committee, one two story single-family dwelling may be erected where said dwelling will not detract from the view of any other lot.’ . . . .”]; we note the Architecture Committee referred to in Covenant No. 1 ceased to function as of December 31, 1980 (that date is recited in Covenant No. 2); Covenant No. 2, which required committee approval for alterations to an existing dwelling house, also provided for review of home alterations by the Marquez Knolls Property Owner’s Association for a 15-year period after the Architecture Committee lapsed, but Covenant No. 1 has no similar provision for any review by anyone after the December 31, 1980 committee termination date. Because there is no longer any approval mechanism, Covenant No. 1 can have no independent significance. Rather, all new or altered structures must be measured by the reasonableness standard in Covenant No. 11.
We conclude, based on the agreed statement of facts and the additional testimony adduced at the time of trial and the visitation to the scene by the trial judge, that substantial evidence supports the decision of the trial court. We stop short of deciding that the decision of this court in Zabrucky I is determinative of our decision in Zabrucky II based on the law of the case doctrine as urged by plaintiffs, but we are constrained to point out that the issue is very close. In view of the evidence before the trial court we are prone to state that plaintiffs are really attempting to have this court revise our decision in Zabrucky I by stating what is reasonable in this instance. That would be tantamount to invading the province of the trial court, which we will not do and decline plaintiffs’ veiled invitation.
The court has read and considered the amici curiae brief filed March 22, 2007, and the reply thereto filed October 11, 2007. Amici seek to have this court further refine the term unreasonable, as used in Zabrucky I, to refer to non de minimus view obstructions. This court views the amici request as an attempt to make an end run around our published decision in Zabrucky I. We decline to accept the invitation.
DISPOSITION
The judgment is affirmed. Respondents are awarded costs of appeal.
We concur: PERLUSS, P.J., ZELON, J.