Filed 3/5/20 Maravich v. Dover Shores Community Assn. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THEODORE MARAVICH et al.,

Plaintiffs and Appellants,

v.

DOVER SHORES COMMUNITY ASSOCIATION,

Defendant and Appellant.

G056152, G056965

(Super. Ct. No. 30-2015-00809245)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Hugh Michael Brenner, Judge. (Retired Judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part.

Nordberg Denichilo and Danial A. Nordberg for Plaintiffs and Appellants.

Gordon & Rees, Craig J. Mariam, John P. Cogger and James E. Hawley for Defendant and Appellant.

* * *

Homeowners Theodore and Helen Maravich (Plaintiffs) contend their homeowners’ association, defendant Dover Shores Community Association (Dover Shores), has failed its duty to prevent other homeowners from obstructing the view from their home. Plaintiffs filed suit seeking declaratory and injunctive relief. In a bench trial, the court interpreted the relevant provisions of the declaration of covenants, conditions, and restrictions (CC&R’s) governing Dover Shores, and the rules adopted by Dover Shores to implement the CC&R’s, as giving Dover Shores discretion to permit tall trees, even if they impede a homeowner’s view. In this respect, Dover Shores prevailed. However, the court also held the rules Dover Shores had adopted to implement the relevant CC&R provision were inconsistent with the CC&R provision because the rules only mention trees that “detract” from a view, rather than, as the CC&R’s put it, “impede or detract.” In that respect, the court found in favor of Plaintiffs. Both parties appealed. We conclude Dover Shores’s interpretation is correct, and that the rules it implemented are consistent with the CC&R’s. We thus affirm the portion of the judgment favoring Dover Shores, and reverse the portion against Dover Shores.

In a separate appeal, which we have consolidated here, Plaintiffs contend the court erred in determining Dover Shores to be the prevailing party in light of the mixed result below. Alternatively, Plaintiff contend the court should have, at minimum, reduced the attorney fees awarded in light of the mixed result. That appeal is largely moot in light of our disposition on the merits: Dover Shores is clearly the prevailing party. Accordingly, we affirm that aspect of the judgment.

FACTS

According to the verified complaint, “Plaintiffs specifically purchased Plaintiffs’ property in Dover Shores because of the panoramic view of the Back Bay wetlands of Newport Beach, the views of Saddleback Mountain, the sculptured cliffs of the Eastbluff area of Newport Beach and anticipation of dramatic night light views of Fashion Island, among other scenic vistas from their home. Over the years however, landscaping installed by Association members with properties on Galaxy Drive, located below Plaintiffs’ lot and on other members’ properties in the Association, has grown so as to partially block and impede and detract from the view from Plaintiffs’ lot.”

The relevant CC&R provision, entitled “Landscaping Approval,” provides as follows: “No tree or plant shall exceed fourteen (14) feet in height on any lot if it causes blockage of the natural view from another lot without the approval of the Landscape Committee. The Landscape Committee shall have the right to require any member to remove, trim, top, or prune any tree or shrub, regardless of height, which in the reasonable belief of the Landscape Committee impedes or detracts from the view of any lot.” (Italics added.)

In 2009, the Landscape Committee promulgated the following rule implementing the CC&R provision: “In administering this section of the CC&R’s, the Landscape Committee may require a Homeowner to take action with respect to the tree(s), palm(s) or shrubbery if the following occurs: [¶] 1. In cases where a tree or shrub on the lot exceeds fourteen (14’) feet in height and impedes or detracts from the view of any lot, the Homeowner will be required to either remove the tree or shrub or trim or top the tree or shrub so that the maximum height of the tree or shrub does not exceed fourteen feet (14’). If, after such trimming or topping to a maximum height of (14’), the tree or shrub continues, in the reasonable belief of the Landscape Committee, to impede or detract from the view of any other lot, the Homeowner shall be required to remove, or further trim, top or prune the tree or shrub until the view impediment or detraction is abated.” “2. Tall growing palm trees that do not impede or detract from the view of any lot, may therefore be allowed to exceed fourteen feet (14’) in height, provided that they get trimmed annually and dead fronds are removed from the trees.” (Italics added.)

In 2012, Plaintiffs filed a lawsuit against Dover Shores making essentially the same allegations as they make here. That lawsuit settled in December 2013, and Dover Shores agreed to pay Plaintiffs $120,000 and to have certain palm trees removed from another homeowner’s property. Dover Shores also agreed to “investigate” certain other obstructions of Plaintiffs’ view on other homeowners’ lots.

The following month, in January 2014, Dover Shores amended its landscaping standards in one respect: it took out all references to impeding a view, resulting in a rule that applied only where a tree detracted from a view (in other words, the new rule was exactly the same as the 2009 rule, except without any mention of “impede” or “impediment”). We refer to this as the 2014 Landscaping Rule. In a letter accompanying the amendment, Dover Shores observed that it had historically permitted one tall palm tree on each lot. Out of concern over the holding in Eckstrom v. Marquesa at Monarch Beach Home (2008) 168 Cal.App.4th 1111, in 2009 it had amended the rules to explicitly provide for palm trees. However, “The Board, with the advice of counsel, [had] determined that the 2009 changes might, if taken out of context, be misread as a change in the Association’s long standing policy with respect to palm trees in the community, rather than as a reaffirmation of policy consistent with the Association’s CC&R’s, which is to permit tall-growing trees so long as they do not unreasonably detract from a view from another lot in light of the overall aesthetics of the community.” The result of removing the word “impede,” Dover Shores explained, was that “palm trees will continue to be allowed to exceed fourteen feet in height where they partially block or impede a view from another lot, so long as the blockage is not unreasonable in light of the overall aesthetics of the community.”

Unsurprisingly, this did not sit well with Plaintiffs and prompted them to file the present lawsuit. They sought injunctive relief to enforce the CC&R’s. They also sought declaratory relief that homeowners were not permitted to maintain trees over 14 feet that impeded his view, and that the 2014 Landscaping Rule is inconsistent with the CC&R’s. In addition to injunctive and equitable relief, Plaintiffs sought damages. This apparently prompted the parties to stipulate that the trial would be held in two phases: in phase 1, a bench trial, the court would determine the rights and obligations of the parties under the CC&R’s and applicable rules, as well as determine any equitable relief; in phase 2, a jury would determine whether Dover Shores had complied with its obligations as determined by the court and determine damages, if any.

The trial never made it past phase 1. The court interpreted the CC&R provision in favor of Dover Shores: “I hereby . . . adopt the interpretation given this by the defense, that . . . ‘shall have the right to’ is permissive. They can do it or not do it.” Plaintiffs then asked the court to determine whether the rule adopted by the Landscaping Committee is consistent with the CC&R provision, as interpreted by the court. On that front, the court found in favor of Plaintiffs, concluding the 2014 Landscaping Rule is not consistent with the CC&R provision because it omitted any mention of “impede.” The court initially reached this conclusion based in part on the letter Dover Shores sent accompanying the rule change, but later clarified that it reached the same result based on “the four corners of the document.” There was essentially no testimony during the bench trial, with the exception of some brief testimony to lay a foundation for the letter Dover Shores sent accompanying the rule change.

Following that, Plaintiffs rested. Plaintiffs’ counsel commented that he “litigated the primary issues in the case that plaintiff was concerned about.” Dover Shores did not put on any evidence.

What followed was an array of motions litigating issues such as the statement of decision, the form of the judgment, and the determination of the prevailing party. The details are unimportant for present purposes. In the end, the court entered judgment for Dover Shores on the first cause of action for enforcement of governing documents, for Dover Shores on the second cause of action for enforcement of equitable servitudes, and partially in favor of each party on the declaratory relief claim. The court ultimately found Dover Shores to be the prevailing party and awarded it attorney fees in the amount of $390,668. Plaintiffs appealed and Dover Shores cross-appealed. Plaintiffs filed a separate appeal from the award of attorney fees.

DISCUSSION

The Merits

This appeal boils down to interpreting the CC&R provision. The court interpreted it to mean that Dover Shores had discretion to permit trees that impede or detract from a view. Plaintiffs appeal from that interpretation. The court then went on to find that the Dover Shores’s rule implementing the CC&R provision was inconsistent because it only addresses trees that “detract” from a view, omitting any mention of “impede.” Dover Shores appeals from that ruling.

For ease of reference, we repeat the CC&R provision here: “No tree or plant shall exceed fourteen (14) feet in height on any lot if it causes blockage of the natural view from another lot without the approval of the Landscape Committee. The Landscape Committee shall have the right to require any member to remove, trip, top, or prune any tree or shrub, regardless of height, which in the reasonable belief of the Landscape Committee impedes or detracts from the view of any lot.” (Italics added.)

The trial court correctly interpreted this provision as giving Dover Shores discretion to permit trees taller than 14 feet. The first phrase that we have italicized, “without the approval of the Landscape Committee,” clearly implies that the Landscape Committee may approve a tree or plant over 14 feet in height even if it blocks the natural view from another lot. This interpretation is reinforced by the next italicized word: “right.” The Landscaping Committee has the right to require trimming or removal. Nothing is said about an obligation. Accordingly, the court correctly interpreted the CC&R provision to permit Dover Shores discretion to allow tall trees.

We turn now to the 2014 Landscaping Rule implementing this provision. That provision stated, “In administering this section of the CC&R’s, the Landscape Committee may require a Homeowner to take action with respect to the tree(s), palm(s) or shrubbery if the following occurs: [¶] 1. In cases where a tree or shrub on the lot exceeds fourteen feet (14’) in height and impedes or detracts from the view of any lot, the Homeowner will be required to either remove the tree or shrub or trim or top the tree or shrub so that the maximum height of the tree or shrub does not exceed fourteen feet (14’). If, after such trimming or topping to a maximum height of fourteen feet (14’), the tree or shrub continues, in the reasonable belief of the Landscape Committee, to impede or detract from the view of any other lot, the Homeowner shall be required to remove, or further trim, top or prune the tree or shrub until the view impediment or detraction is abated. [¶] 2. Tall growing palm trees that do not impede or detract from the view of any lot may therefore be allowed to exceed fourteen feet (14’) in height, provided that they get trimmed annually and dead fronds are removed from the trees.” The strikethroughs, present in the original amendment sent to the homeowners, represent the changes from the 2009 version of the same rule.

This change was apparently born of a concern that the word “impede” could be interpreted as an objective standard: any tree that comes between a person and the thing being looked at impedes the view, even if, from a more subjective standpoint, the tree does not detract from the view. Indeed, not uncoincidentally, this is precisely how Plaintiffs interprets those terms.

The court found that by omitting any mention of impeding, the 2014 Landscaping Rule was inconsistent with the CC&R provision. Based on the “four corners of the document,” the court simply reasoned that by omitting any mention of impeding, the 2014 Landscaping Rule is different than the CC&R: “So on the four corners of the document it appears to me as being different in terms of the wording, the word deleted in the rules, that there is a difference in the documents. That they are different. [¶] So I make that ruling on the four corners of the document.”

We agree that there is a difference between the Landscaping Rule and the CC&R provision, but merely being different does not render them inconsistent. To the contrary, the CC&R provision confers discretion upon the Landscape Committee to require trimming and removal of tall trees or not. While the 2014 Landscaping Rule omits any mention of impeding, this should simply be understood as a policy statement that the Landscape Committee will consistently exercise its discretion to permit trees that impede, but do not detract from, a view. This is perfectly within their discretion. As the Landscape Committee put it in a letter accompanying the rule change, “Thus, palm trees will continue to be allowed to exceed fourteen feet in height where they partially block or impede a view from another lot, so long as the blockage is not unreasonable in light of the overall aesthetics of the community.” This determination is well within the authority conferred upon the Landscape Committee under the CC&R provision. The court erred in concluding otherwise.

Our resolution of these issues largely determines the remainder of the issues raised by the parties.

Principally, Plaintiffs contend that the court’s resolution of the declaratory judgment cause of action partially in their favor also compelled a judgment in their favor for equitable relief due to Dover Shores’s breach of the CC&R’s. Plaintiffs argue that by finding the 2014 Landscaping Rule incompatible with the CC&R’s, it necessarily followed that Dover Shores breached the CC&R’s, compelling equitable relief in their favor. But since we have found the court erred in finding the 2014 Landscaping Rule to be incompatible with the CC&R’s, that argument is moot.

Additionally, operating on an incorrect interpretation of the CC&R’s, Plaintiffs argue that the evidence before the court compelled a finding that trees impeded the view from their home. The evidence Plaintiffs rely on comes from the verified complaint and a declaration submitted in connection with a motion for summary judgment. Dover Shores contends this evidence was not actually admitted in the bench trial. Plaintiffs contend it was because when they asked the court to take judicial notice of various filings in the case, the court commented, “Anything that’s a pleading in the matter I don’t have to take judicial notice, that’s before the court.”

We need not resolve the evidentiary dispute because, even if the complaint and declaration were admitted into evidence, and even if they indisputably establish that trees impeded Plaintiffs’ view—that alone does not establish that Dover Shores breached its duty to Plaintiffs. Under the correct interpretation of the CC&R’s, Dover Shores has the authority to permit trees that impede, but do not detract from, Plaintiffs’ view. And there was no evidence or argument that the trees detract from their view, much less that Dover Shores would be compelled to so find.

Plaintiffs also raise a litany of purported procedural errors, predominantly arguing the court rendered an inadequate statement of decision and failed to resolve all of the issues framed by the pleadings. (See Calloway v. Downie (1961) 195 Cal.App.2d 348, 352 [“‘A judgment rendered without findings on all material issues must be reversed. . . . Not only must the court make findings on all material issues, but the findings made must be definite and certain’”].) These purported errors are essentially attempts to reframe the issues we discussed above, and most of them are premised on an interpretation of the CC&R’s that we have found to be erroneous. Our holding in this appeal either resolves most of those issues or renders them moot.

The one issue that is not resolved by our holding is that Plaintiffs contend the judgment failed to decide the proper interpretation of “impede or detract” in the CC&R’s. But upon review of the operative complaint, Plaintiffs did not ask for that relief. They listed 12 specific disputes that required resolution in a declaratory relief judgment, none of which are a dispute over the meaning of “impede or detract.” And more generally, it was not necessary to interpret those terms in light of Plaintiffs’ decision not to put on any evidence that the trees detract from their view.

Prevailing Party/Attorney Fees

In a separate appeal, which we have consolidated with the appeal on the merits, Plaintiffs’ contend the court erred in determining Dover Shores to be the prevailing party, or, alternatively, that the court should have reduced the award of attorney fees to Dover Shores to reflect Plaintiffs’ success in having the 2014 Landscaping Rule deemed invalid. As we have reversed that aspect of the judgment, finding instead that Dover Shores should have prevailed on that issue, it is clear that Dover Shores was the prevailing party, and there is no basis for reducing the fees it reasonably incurred. Accordingly, we affirm the court’s determination of the prevailing party and its award of attorney fees to Dover Shores.

DISPOSITION

The judgment is reversed to the extent the court found in favor of Plaintiffs on the declaratory relief cause of action. The court is instructed to enter judgment for Dover Shores consistent with this opinion. In all other respects, the judgment is affirmed. Dover Shores shall recover its costs incurred on appeal.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.