CHAPALA
MANAGEMENT CORPORATION v. STANTON >













Filed 7/29/10











CERTIFIED
FOR PARTIAL PUBLICATION^*



COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>

CHAPALA MANAGEMENT CORPORATION, Plaintiff and Respondent, v. THOMAS STANTON et al., Defendants and Appellants.

D055532 (Super. Ct. No. 37-2008-00079704-CU-OR-CTL)

STORY CONTINUE FROM
PART I….



B. >Association's CC&Rs
and Interpretation

We set out
the relevant provisions of the CC&Rs.

Article XV
of the CC&Rs pertains to the architectural review
committee. In part, it states,
"[n]o alteration shall be made in the exterior color design or openings of
any building or other construction unless written approval of said alteration
shall have been obtained from the ARC."
(CC&Rs, art. XV, § 2.) That section also generally prohibits the
erection, placement or alteration of any building, structure or improvement on
any unit exterior until the ARC approves in writing the location and the
complete plans and specifications of those matters, including the color scheme.


Article XV,
section 4 provides: "In the event
of the failure of any individual Owner to comply with a written directive or
order from the ARC, then in such event, the ARC shall have the right and authority
to perform the subject matter of such directive or order, including, if
necessary, the right to enter upon the Yard, Living Unit or where a violation
of these restrictions exists, and the cost of such performance shall be charged
to the Owner of the Condominium in question, which cost shall be due within
five (5) days after receipt of written demand therefor,
and may be recovered by the ARC in an action at law against such individual
Owner."

Article XV,
section 6 of the CC&Rs sets forth a procedure for
the "[i]nspection of
work and correction of defects therein . . . ." It provides:
"(a) Upon the completion of
any work for which approved plans are required under this Article, the Owner
shall give written notice of completion to the ARC. [¶] (b) Within ninety (90) days thereafter, the ARC
or its duly authorized representative, may inspect such improvement. [I]f the ARC finds that such work was not
done in substantial compliance with the approved plans, it shall notify the
Owner in writing of such noncompliance within such ninety (90) day period,
specifying the particulars of noncompliance, and shall require the Owner to
remedy the same. [¶] . . . [¶] (d) If
for any reason the ARC fails to notify the Owner of any noncompliance within
ninety (90) days after receipt of said written notice of completion from the
Owner, the improvement shall be deemed to be in accordance with said approved
plans."

Article
XVIII of the CC&Rs contains the declaration's
enforcement provisions. Sections 3, 4
and 5 of that article read as follows:
"Any breach hereof which is not cured within fifteen (15) days
after notice is mailed to the party alleged to be in breach, may be enjoined,
abated or remedied by appropriate proceedings in law or equity. It is hereby agreed that damages at law are
inadequate for any non-monetary breach hereof.
[¶] . . . The results of every act or omission which
are a breach hereof are hereby declared to be and constitute a nuisance, and
every remedy allowed by law or equity against a nuisance, either public or
private, shall be applicable against every such result and may be exercised by
any party enforcing this Declaration.
[¶] . . . The remedies herein provided
for breach of the covenants contained in this Declaration shall be deemed
cumulative, and none of such remedies shall be deemed exclusive."

The CC&Rs further state that each owner shall comply with
the provisions of the CC&Rs, Bylaws, and
Association's decisions and "failure to comply with any such provisions,
decisions or resolutions shall be grounds for an action to recover sums due for
damages or for injunctive relief."

"CC&R's are interpreted according to the usual rules for
the interpretation of contracts generally, with a view toward enforcing the
reasonable intent of the parties.
[Citations.] Where, as here, the
trial court's interpretation of the CC&R's does
not turn on the credibility of extrinsic evidence, we independently interpret
the meaning of the written instrument. [Citation.]
[¶] The language of the CC&R's governs if it is clear and explicit, and we
interpret the words in their ordinary and popular sense unless a contrary
intent is shown. [Citations.] The parties' intent is to be ascertained from
the writing alone if possible.
[Citation.] If an instrument is
capable of two different reasonable interpretations, the instrument is
ambiguous. [Citation.] In that instance, we interpret the CC&R's to make them lawful, operative, definite,
reasonable and capable of being carried into effect, and must avoid an
interpretation that would make them harsh, unjust or inequitable." (Harvey v. The Landing Homeowners Assn. (2008) 162 Cal.App.4th 809, 817-818, fns. omitted.)

C. Analysis

Given the
applicable standard of review, the question for this appeal is not whether the CC&Rs provide Association with a remedy at law -- they
plainly do -- it is whether the trial court abused its discretion in awarding
Association injunctive relief under the present circumstances. We will find an abuse of discretion if the
Association's governing documents mandate an exclusive legal or self-help remedy. They plainly do not. (See CC&Rs,
art. XVIII, § 5 [none of the remedies provided for in the CC&Rs shall be deemed exclusive].) We may also conclude the trial court abused
its discretion in awarding injunctive relief if such relief is otherwise
unavailable to Association as a matter of law, or the court's decision to award
such relief under the present circumstances exceeds the bounds of reason or has
no reasonable basis. ( >Westside Community for Independent Living,
Inc. v. Obledo (1983) 33 Cal.3d 348, 355.)

We cannot
say the trial court's decision to grant Association injunctive relief falls
within this difficult standard. This
court recently explained -- in the context of a trial court's denial of
injunctive relief to a condominium unit owner -- that " ' "[a]
permanent injunction is a determination on the merits that a plaintiff has
prevailed on a cause of action . . . against a defendant and that equitable
relief is appropriate."
[Citation.] . . . The [court's]
exercise of discretion must be supported by the evidence and, "to the
extent the trial court had to review the evidence to resolve disputed factual
issues, and draw inferences from the presented facts, [we] review such factual
findings under a substantial evidence standard." [Citation.]
We resolve all factual conflicts and questions of credibility in favor
of the prevailing party and indulge all reasonable inferences to support the
trial court's order.' " ( >Haley v. Casa Del Rey
Homeowners Assn. (2007) 153 Cal.App.4th 863, 872.) Where minds may reasonably differ, it is the
trial judge's discretion and not that of the appellate court that must
control. (See Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.)

Here, the
trial court found that the Stantons
breached the Association's CC&Rs by installing
exterior windows in their unit without obtaining prior architectural review
committee approval. The documentary
evidence and Thomas Stanton's trial testimony support the trial court's factual
determinations that the Stantons
intentionally proceeded with the unauthorized window installation in the face
of the architectural review committee's rejection of their application. The CC&Rs
expressly deem damages at law an inadequate remedy for such a nonmonetary breach, and they expressly permit the
Association to seek injunctive relief to remedy any such violation. (CC&Rs, art.
XVIII, § 3.) Injunctive relief is
an authorized means to enforce covenants and restrictions on land. (Civ. Code,
§ 1354, subd. (a);^[1] Terifaj, supra, 33
Cal.4th at pp. 78-79 [section 1354, subdivision (a) permits an association to
enforce all original and amended covenants and restrictions via equitable
remedies, including injunctive relief, unless they are unreasonable]; >Arrowhead Mut.
Service Co. v. Faust (1968) 260 Cal.App.2d 567, 572-573, 582.)

We will
also infer a finding by the trial court that it was within the Board's
reasonable discretion to file suit and pursue the equitable remedy of injunctive
relief. (See Haley v. Casa Del Rey Homeowners Assn., supra, 153 Cal.App.4th at p. 875
[extending rule of judicial deference to association decisions to decisions
how to remedy violations of CC&Rs]; >Harvey > v. The Landing Homeowners Assn., >supra, 162 Cal.App.4th at p. 821, fn.
5.) "Generally, courts will uphold
decisions made by the governing board of an owners association as long as they
represent good faith efforts to further the purposes of the common interest
development, are consistent with the development's governing documents, and
comply with public policy." (Nahrstedt, > supra, 8 Cal.4th at p. 374.) The Board's decision should be "judged
in light of the facts at the time the board considered the matter." (Beehan v. Lido Isle
Community Assn. (1977) 70 Cal.App.3d 858, 866; see also >Ekstrom, supra, 168 Cal.App.4th at p. 1126.)
We must uphold the trial court's finding on that issue as long as the
evidence supports a finding that the Board's discretion was exercised in good
faith in what it believed was in the best interests of the Association, in a
manner consistent with the development's governing documents and in compliance
with public policy. (See Nahrstedt, at p.
371; Haley, at p. 875.)

The trial
court found, on disputed evidence,
that the architectural review committee completed a reasonable investigation
concerning the dispute by meeting with the Stantons to discuss their window
color, and by comparing the sandtone windows to the
Association's paint standards for similarly situated windows. The Stantons
do not challenge that finding. The
evidence further shows that, in the face of the Stantons' willful violation of the
prior approval provision of the CC&Rs,
Association unsuccessfully sought to resolve the matter through mediation. Because the Stantons showed no indication of
modifying their windows or otherwise changing their position, the Board
thereafter elected to file suit to have the Stantons remedy their unauthorized
improvements. Under the CC&Rs, Association has discretion to select among
several means for remedying violations, including by bringing an action to
require the Stantons
to cure the violation by mandatory injunction.
(Accord, Haley v. Casa Del Rey Homeowners Assn., supra, 153 Cal.App.4th at p. 875 [holding the association had the
discretion to address complaints about CC&R violations by amending the CC&Rs to permit certain encroachments rather than file
expensive and time-consuming litigation].) The architectural review committee is
granted broad authority under the CC&Rs to
maintain the architectural and aesthetic integrity of Association, and under
that authority it concluded that the Stantons'
unapproved windows could not remain without compromising that integrity. Under the circumstances, it was not
manifestly unreasonable for the trial court to conclude, implicitly, that
Association felt the interests of its members would be best served by obtaining
a court order directing the Stantons
to bring their windows in compliance with the Association's "longstanding,
architectural aesthetic color scheme."


Because we
are limited to determining whether the trial court's decision to grant
injunctive relief is an abuse of discretion, we shall not overturn its decision
in view of the above-summarized factual circumstances and grant of authority
under the CC&Rs.
We note, however, that were we to consider the matter de novo, we would
question the Board's business judgment in resorting to expensive and
time-consuming litigation generating many thousands of dollars in legal fees,
rather than electing to notify the Stantons of their
violation and issue a directive that they paint or replace their windows with
windows of an approved color. (CC&Rs, art. XV, § 4.)
If the Stantons
did not comply, Association would have been reasonably within its authority to
remedy the Stantons'
noncompliance by painting the two windows, charging the Stantons its expenses incurred in
doing so, and recovering the minimal cost in an action at law. (CC&Rs, art.
XV, § 4.) Under the abuse of
discretion standard of review, however, our difference of opinion does not
warrant reversal as long as we conclude the trial court could reasonably reach
a different conclusion.

Turning to
the Stantons' claim that their windows were deemed
approved by Association, we agree with Association that the Stantons
forfeited this theory -- which is based on an underlying factual premise that
they notified Association of the completion of their window installation -- by
failing to raise it in the trial court.
" '[I]t is fundamental that a reviewing court will ordinarily not
consider claims made for the first time on appeal which could have been but
were not presented to the trial court.'
Thus, 'we ignore arguments, authority, and facts not presented and
litigated in the trial court. Generally,
issues raised for the first time on appeal which were not litigated in the
trial court are waived.' " ( >Newton > v. Clemons (2003) 110 Cal.App.4th 1,
11, fns. omitted.) "Appellate
courts are loath to reverse a judgment on grounds that the opposing party did
not have an opportunity to argue and the trial court did not have an
opportunity to consider." ( >JRS Products, Inc. v. Matsushita Electric
Corp. of America
(2004) 115 Cal.App.4th 168, 178.)

We have
reviewed the Stantons' trial brief, the closing
arguments of their counsel, and their request for a statement of decision, and
find nothing suggesting that they sought a finding from the trial court that
their windows -- as installed -- were deemed approved under the inspection and
correction provisions of article XV, section 6(d) of the CC&Rs
by Association's failure to give written notice of noncompliance.^[2]

Nor are we
convinced that the Stantons'
windows were deemed approved as a matter of law. (See Hale
v. Morgan (1978) 22 Cal.3d 388, 394 ["a litigant may raise for the
first time on appeal a pure question of law [that] is presented on undisputed
facts"]; see also Stone Street
Capital, LLC v. California State Lottery Commission (2008) 165 Cal.App.4th
109, 123, fn. 10.) First, we cannot say
the relevant facts are undisputed. The
evidence shows that the Stantons
notified Association that they would be installing their windows "this
week." The trial court could
reasonably conclude, and we must infer it found, the Stantons' letter did not
constitute "written notice of completion" to the Association within
the contemplation of the CC&Rs. (CC&Rs, art.
XV, § 6(a).) But were we to
consider the matter assuming the facts were undisputed, we would reject the
contention. The language of the
inspection and correction provision requiring written notice of completion
presumes the owner has "approved plans" (CC&Rs,
art. XV, § 6(a)) for the improvement or work. Thus, in those cases, the owners will have commenced
the work with architectural review committee approval. The purpose of requiring a notice of
completion is to permit -- but not require -- the architectural review committee
to inspect (". . . the ARC may inspect > . . .") the work or improvement to
decide whether it complies with the approved plans, and give a notice of
noncompliance if it does not. These
inspection and correction provisions are not applicable to the Stantons, who installed their windows without approved plans.
Indeed, they did so in the face of the prior architectural review
committee disapproval. Section 6(d) of
article XV does not govern.

II. Board
Hearing

The Stantons contend the trial court ignored statutory
requirements in Civil Code section 1378, subdivision (a)(4) and (5) that the
Board grant them a reconsideration hearing after the architectural review
committee denied their application. They
argue "[n]othing in this record indicates that
[Association] ever offered the Stantons
a board hearing or even notified them of the availability of one." They assert Association was not authorized to
pursue litigation as a result of its failure to follow its own procedures, and
on this basis they ask this court to reverse the judgment and remand it to
enter judgment in their favor.

Association
responds that the record shows the Stantons
were well aware of such an appeal process because each year, it provided the
homeowners with a document entitled "Architectural Review Committee and
and/or [sic] Board Standards and
Procedures." Association also
points out the trial court made an express finding in its statement of decision
that it had complied with all requirements and conditions of its CC&Rs, and if there were deviations, the parties, who
were represented by counsel, waived them.^[3] Association argues the finding is supported
by substantial evidence that it complied with procedural prerequisites of
filing suit, including conducting a board meeting to discuss the architectural
review committee's decision on the Stantons'
application.

Civil Code
section 1378 governs an association's decisionmaking
process if its governing documents, as Association's do here, require it to
approve or disapprove an owner's request to make a physical change to his or
her unit or to the common area. (Civ. Code, § 1378, subd.
(a).) The statute requires the
association have a "fair, reasonable, and expeditious" procedure for
making its decision, which must be made in good faith and may not be
unreasonable, arbitrary or capricious. (Civ. Code, § 1378, subd.
(a)(1), (2).) Civil Code section 1378,
subdivision (a)(4), provides: "A
decision on a proposed change shall be in writing. If a proposed change is disapproved, the
written decision shall include both an explanation of why the proposed change
is disapproved and a description of the procedure for reconsideration of the
decision by the board of directors."
Civil Code section 1378, subdivision (a)(5), provides: "If a proposed change is disapproved,
the applicant is entitled to reconsideration by the board of directors of the
association that made the decision, at an open meeting of the board." Reconsideration of the decision is not
required if the board and the body making a decision on a proposed change are
one and the same, and the decision is made at an open meeting. (Ibid.)

Association
does not dispute the mandatory language of Civil Code section 1378, subdivision
(a)(4) stating the decision of disapproval "shall include" a
description of the procedure for reconsideration of the decision by the
Board. There is no evidence that
Association met this requirement.
However, we nevertheless reject the Stantons' contentions for several
reasons. First, they do not explain how
or at what point below they raised the issue of the Association's noncompliance
with this requirement in the trial court, to give the court the opportunity to
address it. Having failed to demonstrate
they raised the issue below, they have forfeited any possible claim on appeal
relating to this error. (See generally >Keener v. Jeld-Wen,
Inc. (2009) 46 Cal.4th 247, 264-265 [purpose of the general doctrine of
forfeiture is to encourage a defendant to bring errors to the attention of the
trial court so that they may be corrected or avoided and a fair trial
had].)

Second,
even if the trial court somehow erred by "ignoring" Civil Code
section 1378's requirements, the Stantons have not
met their burden to affirmatively establish they were prejudiced by the
error. (Cal.
Const., art. VI, § 13; Code Civ. Proc., § 475; Cucinella > v. Weston Biscuit Co. (1954) 42 Cal.2d
71, 82; Paterno > v. State of California (1999) 74
Cal.App.4th 68, 105 [appellant bears the duty of spelling out in his brief
exactly how the error caused a miscarriage of justice].) Specifically, they have not attempted to demonstrate
that the outcome of this matter would be different if the trial court had
acknowledged the notice requirement.

Nor can
they make such a showing, in our view.
The record reflects that after the Stantons' December 2006
application was denied by the architectural review committee, Thomas Stanton
wrote to the Board via its property manager stating he had consulted with an
attorney, who had advised him the architectural review committee's action was
arbitrary, capricious and an abuse of discretion. He asked that the Board consider certain
information and "reconsider our color request . . . ." (Underlining omitted.) Mr. Stanton admitted at trial he sent the
letter for the purpose of obtaining the Board's reconsideration; that he
believed the Board had the right to overrule the architectural review
committee's decision based on information related to him by the prior chairman
of the architectural review committee.
The property manager responded in part by advising Mr. Stanton that the
Board had received his letter and would discuss it at its February 15, 2007 meeting, stating the time of
that meeting. Mr. Stanton acknowledged
the upcoming Board meeting in writing and advised the property manager that he
could not attend due to a conflict. He
asked instead for a written response to the questions and statements within his
letter.

Thus,
despite the absence of express written notification about appeal or
reconsideration rights in the architectural review committee's December 2006
denial, the record shows the Stantons
in consultation with legal counsel nonetheless exercised those rights,
specifically asking the Board for reconsideration of the architectural review
committee's decision, and they were given an opportunity to attend the Board
meeting. Further, this evidence supports
the trial court's findings that to the extent the architectural review
committee did not include written notice of the Stantons'
right to Board reconsideration in its decisions, the Stantons
knew of, but waived, any deficiency and Association's noncompliance by failing
to raise it at the time.

III. Association's
Paint Policy

The Stantons contend the trial court erred by holding the term
"aesthetic" allows Association to depart from its governing
documents, which assertedly require all exterior
replacement windows be "chocolate brown" in color without regard to
location. They argue the CC&Rs and Exhibit 21, reflecting what they characterize
as Association's written "regulation" for paint schemes, contradict
Association's policy of allowing differing colors for street-facing and
non-street-facing windows, and that any such unwritten policy based on window
location is not a valid operating rule under Civil Code section 1357.110,
subdivision (a). According to the Stantons, the ARC chairman was not
authorized to allow variations in exterior window color at the Association
depending on their location; any such variations were unauthorized and
capricious "by definition" because they were based on some unwritten,
nebulous standard.

The Stantons do not challenge the sufficiency of the evidence
of the trial court's findings concerning the architectural review committee's
window color policy, i.e., that since 1999, the Stantons
had knowledge that the architectural review committee had an architectural
guideline permitting window colors to differ depending on whether or not they
faced the street. They therefore
concede, as the trial court found, the architectural review committee has been
operating under such a policy since at least 1999. The Stantons
appear to argue only that the policy is unenforceable or void because it is
unwritten, contradicts the CC&Rs and Exhibit 21,
and is arbitrary and capricious because it was implemented and controlled at
the whim of the architectural review committee's chairman.

Preliminarily,
we observe the Stantons
do not explain how these arguments compel reversal of the trial court's
judgment. Even if we assume their
argument to be true -- that the Association's architectural review committee
could not validly permit owners to install anything other than chocolate
brown-colored exterior windows (no matter the location) and the trial court
erred in finding otherwise -- the Association's lawsuit was directed at the Stantons' violation of that standard when they installed sandtone-colored exterior windows without architectural
review committee approval. The Stantons do not challenge or
dispute the CC&Rs provisions requiring prior
architectural review committee approval of improvements. As Association points out, the trial court
determined the Stantons
had breached the CC&Rs by installing their sandtone-colored windows without architectural review
committee approval, and that the architectural review committee acted within
the scope and power granted it by the CC&Rs in
disapproving their chosen windows, which were not the brown color specified in
Association's window paint standards.

Accordingly,
on these points, the Stantons
cannot meet their appellate burden of affirmatively demonstrating prejudice, that
is, that the trial court's assumed error in its findings was prejudicial or
resulted in a miscarriage of justice.
" '[A] "miscarriage of justice" should be
declared only when the court, "after an examination of the entire cause,
including the evidence," is of the "opinion" that it is
reasonably probable that a result more favorable to the appealing party would have been reached in
the absence of the error.' " (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)

The Stantons' arguments mischaracterize
the trial court's findings in any event.
The court did not find that the architectural review committee was
authorized to ignore the Association's governing documents. It found the Association's CC&Rs granted discretion to the architectural review committee
in reviewing requests for improvements on the basis of aesthetic
considerations, which is a delegation of power allowed under California
law. As we have stated, courts review
such broad grants of authority under a deferential standard: they are "presumptively
reasonable [citation], and are enforceable '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' [citation]." (Terifaj, supra, 33 Cal.4th at p. 88; Nahrstedt, supra,
8 Cal.4th at pp. 380, 382.) The court
also found that Exhibit 21 reflected "approved and recommended colors for windows in the community," (italics
added) that Exhibit 21 served as a "guide" for the homeowners, and
that the architectural review committee had discretion, in its exercise of
aesthetic judgment, to allow for differences in color for front-facing windows
and those windows that generally face the rear of the units, in areas described
as exclusive use common area. The court's
finding is consistent with Association's architectural guidelines, which allow
for the "largest possibility for individual expression" within the
exclusive use areas appurtenant to the units' rears, i.e., non-street-facing.

The grant of discretion to the
ARC in article XV, section 11 of the CC&Rs, is
not "wholly arbitrary" because it bears a "rational relationship
to the protection, preservation, operation[, and] purpose of the affected
land." (Nahrstedt, supra, 8 Cal.4th at pp.
381-382.) As we have previously held,
"Maintaining a consistent and harmonious neighborhood character, one that
is architecturally and artistically pleasing, confers a benefit on the
homeowners by maintaining the value of their properties." (Dolan-King I, supra, 81 Cal.App.4th at p. 976.) Here, the architectural review committee
could reasonably conclude within the broad authority granted to it in the CC&Rs that Chapala's neighborhood character and aesthetics required that
street or common area-facing windows be a consistent shade of brown, so as to
avoid a hodgepodge of differing colors apparent from the unit fronts.

IV. Sufficiency
of the Evidence

In related
arguments, the Stantons
contend the trial court erred in finding that the architectural review
committee did not act in an arbitrary, capricious or discriminatory manner in
disapproving their application.
Summarizing trial testimony from various witnesses that other windows in
Chapala were painted with lighter colors, as well as
from Association's chairman of the architectural review committee, they argue
the architectural review committee's rejection of their windows was arbitrary,
illegal and capricious because it was the result of a decision made solely by
the architectural review committee chairman based on the Association's lawyers'
conception of Association's "signature" look, it was "subject to
his will without restriction," and it was contrary to Association's
unrecorded color regulations, which the Stantons
argue are binding upon owners having notice of those regulations. They argue the decision was discriminatory
because the architectural review committee chairman treated other owners
differently, specifically, the evidence showed one other owner -- Brian Finneran -- had been allowed to install sandtone-colored
windows in the front of his unit.

A. >Standard of Review

"
'Where findings of fact are challenged on a civil appeal, we are bound by the
"elementary, but often overlooked principle of law, that . . . the power
of an appellate court begins and ends with a determination as to whether there
is any substantial evidence, contradicted or uncontradicted,"
to support the findings below.
[Citation.] We must therefore
view the evidence in the light most favorable to the prevailing party, giving
it the benefit of every reasonable inference and resolving all conflicts in its
favor in accordance with the standard of review so long adhered to by this
court.' " (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded
by statute on another ground as noted in >Armendariz v. Foundation Health Psychcare Services, Inc.
(2000) 24 Cal.4th 83, 100.) "
'Substantial evidence' is evidence of ponderable
legal significance, evidence that is reasonable, credible and of solid
value. [Citation.] 'Substantial evidence . . . is not synonymous
with "any" evidence.' Instead,
it is ' " 'substantial' proof of the essentials which the law
requires." ' [Citations.] The focus is on the quality, rather than the
quantity, of the evidence. 'Very little
solid evidence may be "substantial," while a lot of extremely weak
evidence might be "insubstantial." '
[Citation.] Inferences may
constitute substantial evidence, but they must be the product of logic and
reason. Speculation or conjecture alone
is not substantial evidence." ( >Roddenberry v. Roddenberry (1996) 44
Cal.App.4th 634, 651.)

B. >Analysis

We begin
our analysis by pointing out that the Stantons
have arguably waived their sufficiency of the evidence arguments by failing to
summarize all of the material evidence, including the evidence that is damaging
to their case. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Huong > Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410; Eisenberg et
al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter
Group 2007) ¶ 8:71, p. 8-34.) Indeed,
the Stantons
largely reargue the merits of their case -- they discuss why the architectural
review committee's decision was arbitrary, capricious and discriminatory
without analyzing the entirety of the trial evidence and the trial court's
factual findings. By ignoring the trial
court's adverse factual findings and failing to analyze why the evidence does
not support those findings, and by restricting their analysis and argument to
facts that assertedly support their position -- i.e.,
evidence that other owners were permitted to install lighter colored windows in
their homes -- the Stantons ignore the settled
principles of substantial evidence review that we have set forth above.

Setting
aside this fatal flaw, we are unpersuaded by the Stantons' arguments on the
merits. Generally "[w]hether conduct was arbitrary and capricious is a question
of fact within the sound discretion of the trial court." (Zuehlsdorf
v. Simi Valley
Unified School Dist. (2007) 148 Cal.App.4th 249, 255-256.) However, as stated above, where the facts are
uncontroverted we apply a de novo standard of
review. (Dolan-King I, supra, 81 Cal.App.4th at p. 974.)^[4]



TO BE CONTINUED AS PART III….



Publication courtesy of California
pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

San Diego Case
Information provided by www.fearnotlaw.com

---

id=ftn1>

^* Pursuant to California Rules of
Court, rule 8.1110, this opinion is certified for publication with the
exception of parts I, II, III, IV, and V.