Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
James Roberts et al vs James P Foster et al
Case No: 18CV02513
Hearing Date: Fri Mar 06, 2020 9:30

Nature of Proceedings: Motion for Summary Adjudication

TENTATIVE RULING: Plaintiffs’ motion for summary adjudication of plaintiffs’ fourth cause of action for enforcement of CC&Rs against defendants is denied because it does not completely dispose of the fourth cause of action. Plaintiffs’ motion for summary adjudication of defendants’ ninth affirmative defense of consent is denied because it does not completely dispose of the ninth affirmative defense.

BACKGROUND:

This action arises out of a neighbor dispute. As alleged in the complaint, plaintiffs James Roberts and Danielle Roberts own and reside at 365 Oak View Lane, Santa Barbara. Defendants James Foster and Sandra Russell own and reside at 375 Oak View Lane, Santa Barbara. Both the Roberts property and the Foster/Russell property are governed by the recorded Covenants, Conditions, and Restrictions of Oak View Homes of Santa Barbara (CC&Rs). Plaintiffs and defendants are members of the Oak View Homes of Santa Barbara Owners’ Association (HOA), which is governed by the Davis-Stirling Common Interest Development Act (Civ. Code §4000 et seq.). Under the CC&Rs, the HOA is authorized to establish an architectural committee (AC) for purposes of reviewing proposed improvements to landscaping and/or architecture submitted by members of the association.

In June 2015, defendants told plaintiffs that they wanted to make improvements to the front yard area of defendants’ property along its boundary with plaintiffs’ property. Defendants indicated that they intended to hire a landscape designer to prepare plans for the work. The parties agreed that together they would review the plans for the proposed work. On July 8, 2015, defendants or their agents entered plaintiffs’ property without permission and cut down a mature pear tree. On August 7, 2015, defendants told plaintiffs that the landscape work would require plaintiffs to remove their front yard fence. Plaintiffs responded that they did not want to do that because the change would be unsightly and would negatively impact the value of their property. In January 2016, defendants began constructing a new fence along the parties’ shared property line. Construction of the fence was completed in August 2016. On August 24, 2016, defendants or their agents entered plaintiffs’ property without permission and removed a pygmy date palm.

On May 18, 2018, plaintiffs filed their original complaint in this action. Plaintiffs filed a first amended complaint on August 24, 2018, and a second amended complaint (SAC) on January 4, 2019. The SAC alleges causes of action for (1) trespass to land, (2) trespass to timber, (3) breach of fiduciary duty, (4) enforcement of CC&Rs against Foster and Russell, (5) enforcement of CC&Rs against the HOA, (6) negligence, and (7) declaratory relief. Plaintiffs and the HOA reached a settlement and the claims against the HOA have been dismissed.

Plaintiffs now move for summary adjudication of plaintiffs’ fourth cause of action for enforcement of the CC&Rs against Foster and Russell. Plaintiffs also move for summary adjudication of defendants’ ninth affirmative defense of consent. Defendants oppose the motion.

ANALYSIS:

Request for Judicial Notice

Plaintiffs have requested that the court take judicial notice of the Articles of Incorporation of Oak View Homes of Santa Barbara Owners’ Association, filed with the California Secretary of State on May 3, 1999 (Ex. 10). Plaintiffs have also requested that the court take judicial notice of the Answer of Defendants James P. Foster and Sandra H. Foster to plaintiffs’ Second Amended Complaint (Ex. 11). Exhibit 10 is a recorded document for which judicial notice may and will be taken as the document “[is] not reasonably subject to dispute and [is] capable of immediate and accurate determination.” Evid. Code §452, subd. (h). Exhibit 11 is a record of a court of this state for which judicial notice may and will be taken. Evid. Code §452, subd. (d).

Defendants have requested that the court take judicial notice of plaintiffs’ Second Amended Complaint in this action and defendants’ Answer to the Second Amended Complaint. Both documents are records of this court for which judicial notice may and will be taken. Evid. Code §452, subd. (d).

Motion for Summary Adjudication

Any party may move for summary adjudication as to one or more claims within an action or one or more affirmative defenses if it is contended that the claim has no merit or there is no merit to the affirmative defense. Code Civ. Proc. §437c, subd. (f)(1). A motion for summary adjudication shall be granted only if it completely disposes of a cause of action or affirmative defense. Ibid. Where the party seeking summary adjudication is the plaintiff, the plaintiff has the burden of producing admissible evidence on each element of the cause of action in question entitling it to a judgment. Code Civ. Proc. §437c, subd. (p)(1); Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 850. If the plaintiff meets this burden, the burden shifts to the defendant to show by admissible evidence that a triable issue of one or more material facts exists as to that cause of action or an affirmative defense. Code Civ. Proc. §437c, subd. (p)(1).

Plaintiffs’ fourth cause of action alleges that defendants violated the association’s CC&Rs when they constructed a fence along the parties’ shared property line. (SAC, ¶90.) Plaintiffs seek summary adjudication on this issue and an order requiring defendants to restore the fence to its original location and dimensions as of July 11, 2015. CC&Rs are equitable servitudes that inure to the benefit of and bind all owners of separate interests in a common interest development. Code Civ. Proc. §5975, subd. (a). “Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.” Ibid; see also, Cohen v. Kite Hill Community Association (1983) 142 Cal.App.3d 642, 654 (homeowner may sue neighbor or association to enforce CC&Rs); Ekstrom v. Marquesa at Monarch Beach Homeowners Association (2008) 168 Cal.App.4th 1111, 1122 (affirming injunction in action to enforce association’s declarations).

Plaintiffs’ motion for summary adjudication will be denied for the reason that it does not completely dispose of their fourth cause of action for violation of the CC&Rs. In paragraph 83 of their second amended complaint, plaintiffs allege that “[t]he CC&Rs at Article V and IX obligated Defendant Foster and Defendant Russell to obtain approval from the AC prior to commencing the Work.” (SAC, ¶83.) The “Work” is described by plaintiffs as “improvements to the front yard area of the Foster/Russell Property along its boundary with Plaintiffs’ Property” and includes redesigning the landscaping and possibly a walkway and gate, moving a fence adjoining the properties, modifying a drainage swale, and removing existing trees and grass. (SAC, ¶¶ 17, 19, 24.) In paragraph 90, plaintiffs allege that defendants “commenced the Work” without proper HOA or AC approval. (SAC, ¶90.) In paragraph 92, plaintiffs request a judicial decree and order requiring defendants to:

1. Restore the fence to its original location and dimensions;

2. Restore the trees, drainage, and landscaping to their original condition; and

3. Seek AC and/or Board approval for any work contemplated by the Work.

(SAC, ¶92.)

Though plaintiffs’ fourth cause of action requests three orders, their motion only seeks judgment as to the relocation of the fence. The motion says nothing about the walkway, gate, swale, trees, or lawn. If the court were to grant plaintiffs’ motion as to the fence, defendants would still have to face the remaining allegations of wrongdoing in the fourth cause of action. Accordingly, because plaintiffs’ summary adjudication motion does not dispose of the entire fourth cause of action, as mandated by Code of Civil Procedure Section 427c, subdivision (f)(1), the motion will be denied.

Plaintiffs next move for summary adjudication of defendants’ ninth affirmative defense of consent. Plaintiffs argue that there are no disputed material facts supporting defendants’ allegation that plaintiffs consented to defendants’ relocating and constructing a fence along the parties’ shared property line. On August 7, 2015, plaintiffs met with defendants and told them that they objected to the proposed relocation of the fence. (Perero Dec., ¶7, Ex. 6, Transcript of Deposition of James P. Foster, p. 77:5-23.) During construction of the fence, plaintiffs sent a letter to defendants, dated January 16, 2016, requesting that they stop the fence construction immediately. (Perero Dec., ¶7, Ex. 6, Transcript of Deposition of James P. Foster, p. 101:16-24.) Defendants’ ninth affirmative defense, however, like plaintiffs’ fourth cause of action, is not limited to the issue of the fence. It alleges:

“As a ninth, separate and distinct defense, defendants are informed and believe and based upon such information and belief allege, that plaintiffs are barred in whole or in part from pursuing their purposed causes of action against defendants because they consented to all or part of the acts described in their second amended complaint.”

(Answer to SAC, p. 3:12-15.)

Thus, defendants allege that plaintiffs consented to all of the acts of defendants and the AC described in the SAC, including the decision of the AC to act (or not act) on defendants’ request for approval of work within 45 days of submission of the request and defendants’ decision to make improvements to the front yard of their property along its boundary with plaintiffs’ property, to include redesigning the landscaping and possibly a walkway and gate, and moving a fence. (SAC, ¶¶ 17, 23, 90.) Whether plaintiffs in fact consented to having the fence relocated is therefore not determinative of defendants’ ninth affirmative defense and plaintiffs’ motion for summary adjudication of the defense will be denied.