Case Number: 19GDCV01226 Hearing Date: February 14, 2020 Dept: E

DEMURRER

[CCP §430.10 et. seq.]

PRELIMINARY INJUNCTION

[CCP §430.10 et. seq.]

Date: 2/14/20

Case: Susan Mondt et al. v. Mesrop G. Khoudagoulian (19GDCV01226)

TENTATIVE RULING:

I. DEMURRER

Defendant Mesrop G. Khoudagoulian, as Trustee of the Mesrop G. Khoudagoulian Living Trust, U/A Dated April 29, 2017’s Demurrer to Plaintiffs Susan Mondt’s and Antonio Gonella’s Complaint is OVERRULED. Defendant demurs to both causes of action on two grounds: (1) uncertainty; and (2) lack of ripeness. Both grounds are unavailing.

With respect to uncertainty, a demurrer for uncertainty must be “strictly construed” and only sustained where the subject pleading is so ambiguous and so unintelligible that it prevents a party from reasonably responding to the allegations before him or her. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the allegations in the Complaint provide defendant with adequate notice of the nature of plaintiffs’ lawsuit, specifically, that defendant’s addition of a second story to defendant’s property will exceed the ground level of plaintiff’s property and violate paragraph E of the Declaration of Restrictions. (Compl. ¶¶ 7-10.) Defendant can conduct contention discovery to discover the facts supporting plaintiffs’ allegations. (Burke v. Sup. Ct. (1969) 71 Cal.2d 276, 281 [citing Singer v. Sup. Ct. (1960) 54 Cal.2d 318, 323-25 [“Discovery necessarily serves the function of ‘testing the pleadings,’ i.e., enabling a party to determine what his opponent’s contentions are and what facts he relies upon to support his contentions”]].)

With respect to ripeness, plaintiffs allege the City of Glendale approved defendant’s proposal to add a second story to defendant’s property. (Compl. ¶ 10.) Plaintiffs also alleges defendant’s planned addition will exceed the ground level of plaintiffs’ property by three feet. (Id. ¶ 13.) In mid-September 2019, defendant submitted construction drawings to the City of Glendale for plan check. (Ibid.) Defendant refuses to comply with plaintiff’s demand to comply with paragraph E of the Declaration of Restrictions. (Ibid.) The foregoing allegations show that the dispute is sufficiently concrete such that declaratory relief is appropriate and that plaintiffs will suffer hardship without a determination of whether defendant’s proposed addition to the property complies with paragraph E. (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 60.)

Accordingly, defendant’s demurrer is OVERRULED in its entirety. Defendant is ordered to file an Answer to the Complaint within 10 days hereof.

II. PRELIMINARY INJUNCTION

Plaintiffs Susan Mondt’s and Antonio Gonella’s Motion for Preliminary Injunction is GRANTED.

As an initial matter plaintiffs’ objection to the declarations of Armen Kazanchyan, Misha Georgevitch, and David V. Hadek are OVERRULED. Even though the declarations were not filed by January 31, 2020, the deadline to file an opposition, plaintiffs were able to substantively respond to the declarations.

“[T]he question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (White v. Davis (2003) 30 Cal. 4th 528, 554.)

As to the likelihood that plaintiffs will prevail on the merits, defendant does not dispute that paragraph E of the Declaration of Restrictions is binding, only that it is ambiguous with respect to the words “ground level” and “behind.” (See Def. Opp. at 6.)

With respect to the term “ground level,” plaintiffs contend that “ground level” means the “graded, surface level of the subject lot.” Defendant contends that “ground level” means the “finished floor” of the parties’ respective residences. (Georgevitch Decl. ¶ 3.) From the plain language of the declaration, “ground level” refers to the surface level of the lot, not the residence on the lot. Plaintiffs point to the “Agreement Modifying Building Restriction,” which modified the Declaration of Restrictions. (Supp. Mondt Decl. ¶ 4 & Ex. A.) Even though the lots at issue in the modification are not the lots at issue here, the interpretation of the term “ground level” applied to Lots 13, 14, and 15 serves to clarify any ambiguity in the original declaration. (See CCP § 1856(g); Pacific State Bank v. Greene (2003) 110 Cal.App.4th 375, 385 [“[P]arol evidence is properly admitted to construe a written instrument when its language is ambiguous. The test of whether parol evidence is admissible to construe an ambiguity is not whether the language appears to the court to be unambiguous, but whether the evidence presented is relevant to prove a meaning to which the language is ‘reasonably susceptible.’”].)

Regardless, no matter which definition of “ground level” is used, on this record, the plans for the roof of defendant’s property exceed the ground level of plaintiffs’ property. Assuming “ground level” means the graded, surface level of plaintiffs’ lot, as plaintiffs’ contend, plaintiffs’ surveyor Chris Nelson states that the ground level of plaintiffs’ property is 235.3 feet. (Nelson Decl. ¶ 4 & Ex. O.) According to defendant’s architectural plans, the top of defendant’s property reaches 238.5 feet. (Bartley Decl. ¶ 4 & Ex. I), although defendant later modified the architectural plan so that the highest point on the roof is 236.75 feet. (Kazanchyan Decl. ¶ 2 & Ex. 1.) In any event, whether the highest point on defendant’s roof is 238.5 feet or 236.75 feet, either plan to remodel would exceed the “ground level” of plaintiffs’ property, as defined as the graded, surface level of the property.

The result does not change even if one assumes, as defendant argues, that “ground level” means the “finished floor” of the parties’ respective residences. Even still, defendant’s residence would exceed the “finished floor/ground level” of plaintiffs’ residence by 2.88 inches. (Georgevitch Decl. ¶ 3.) The Court acknowledges that defendant’s architect declares in a footnote that the remodeling plan for the height of defendant’s residence could be modified so that the second story roof would be at or below the floor of plaintiff’s residence. (Kazanchyan Decl. ¶ 3, fn. 1.) However, based on the record before the Court, all current plans for the roof of defendant’s residence exceed the ground level of plaintiff’s lot no matter whose definition of “ground level” the Court were to adopt. Thus, plaintiffs have shown that they are likely to prevail on the merits.

Defendant also argues that the word “behind” is vague. Reading the Declaration of Restrictions and the amendment thereto, the Court finds that the declaration was intended to protect the upslope homeowners from downslope neighbors from obstruction of views. Plaintiffs refer to the “Agreement Modifying Building Restriction,” which confirmed that the Declaration of Restrictions required that the roof of any dwelling built on Lots 13 or 14 may not exceed the ground level of Lot 15. (Supp. Mondt Decl. ¶ 5 & Ex. A.) Lot 15 is upslope from Lots 13 and 14. (Gonella Decl. ¶ 3 & Ex. E.) Applying this same interpretation to Lots 16 and 17, which are at issue here, it is undisputed that plaintiffs’ property is located on Lot 17, which is upslope from defendant’s property located on Lot 16. (Mondt Decl. ¶¶ 2, 3; Gonella Decl. ¶ 3 & Ex. E.) Therefore, the most reasonable reading of the Declaration of Restrictions restricts defendant, the owner of Lot 16, from building a structure where the highest point of the roof exceeds the ground level of plaintiffs’ Lot 17.

Defendant also argues that the City of Glendale approved the plans for construction. While it may be true the City of Glendale’s Design Review Board approved defendant’s project, that fact is not dispositive here. In King v. Kugler (1961) 197 Cal.App.2d 651, the defendant obtained approval of construction from the city, but the Court of Appeal affirmed the enjoining of the construction based on violation of a privately recorded restriction. Plaintiff Susan Mondt’s averment that the City of Glendale refused to enforce private covenants remains undisputed. (Mondt Decl. ¶ 9.) Thus, it is appropriate for this Court to enjoin defendant’s development at this stage of the proceeding, because defendant’s development potentially violates paragraph E of the Declaration of Restrictions for the reasons discussed above.

With respect to the balance of harms, defendant’s potential obstruction of plaintiffs’ views outweighs the economic effects to defendant. Defendant argues he has already spent $100,000 on the project. (Khoudagoulian Decl. ¶ 8.) Although defendant has begun construction and evidently spent substantial monies, this was self-imposed and embarked upon at defendant’s peril. Plaintiffs notified defendant of their assertion that defendant’s project violated paragraph E of the Declaration of Restrictions before defendant commenced construction. (Mondt Decl. ¶ 8 & Ex. D.) Indeed, the restriction limiting the height of defendant’s roof was recorded at the time defendant purchased the property, thus giving defendant notice of the restriction. (Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 368.) Despite this notice and full knowledge of plaintiff’s interpretation of the restriction, defendant elected to commence construction, bearing the risk that the construction would be enjoined. (Khodagoulian Decl. ¶ 5.)

Against defendant’s claimed hardship, the Court notes plaintiffs have a right to have their view unobstructed and privacy protected in accordance with Paragraph E of the Declaration of Restrictions. (King, supra, 197 Cal.App.2d 651, 654–55 [“Although the instrument does not expressly declare the intent of the grantor to preserve the view of lot owners, it is obvious from the language used, the topography and the finished ground elevations of the tract and the general physical appearance of the land and the existing structures thereon, that the purpose of the height restriction in the plan is to protect the lot owner’s view from one elevation to another.”]; Clear Lake Riviera Community Assn. v. Cramer (2010) 182 Cal.App.4th 459, 473.) Defendant’s continued construction in potential violation of Paragraph E would deprive plaintiffs of the benefit of the restriction that they relied on in purchasing their property. (Mondt Decl. ¶ 7; Gonella Decl. ¶ 6.)

Because plaintiffs demonstrate they are likely to prevail on the merits and that the balance of harms weighs in their favor, the Motion for Preliminary Injunction is GRANTED.

With respect to the required undertaking and bond under CCP § 529(a), the Court cannot conclude that defendant’s construction costs would increase if the project is delayed, as defendant has not presented any evidence of such costs from which the Court could make such a finding. The Court is, however, inclined to require a bond based on the amount defendant pays in rent while his residence is under renovation, namely $5,000 per month. (Khoudagoulian Decl. ¶ 8.) That loss would seem logically connected to any delay to defendant’s renovation caused by the instant litigation. At the continued hearing on plaintiff’s request for a preliminary injunction, the Court will hear from the parties their time estimates for the length of this litigation so that an appropriate amount for the bond may be ordered.