Cordan v. Kahn

Filed 7/24/06 Cordan v. Kahn CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Plaintiffs Alan and Sandra Cordan sued their neighbor, defendant Sandra Kahn, to require defendant to top or remove trees that were obstructing plaintiffs' panoramic view. The trial court granted judgment to defendant pursuant to Code of Civil Procedure section 631.8 and awarded her costs and attorney fees. Plaintiffs appeal, contending that the court erred in finding no obstruction of their principal view. They further challenge the court's determination that defendant was entitled to costs and attorney fees as the prevailing party under Civil Code section 1354, subdivision (c). We will affirm the judgment.

Background

Plaintiffs own a home in the Carmel Views subdivision in Carmel Valley, uphill from the property owned by the Kahn Family Trust and separated by an unimproved lot. All of the lots in the subdivision are subject to the restrictions set forth in the "First Restated Declaration of Covenants, Conditions and Restrictions" (CC&Rs). Among the provisions of that document are those created to preserve the views of the homeowners, a "primary objective" for the development. Article V, section 4, subdivision (b) (Article V(4)(b)), of the CC&Rs states: "No trees or shrubs shall be planted, or permitted to grow, on any Lot so as to obstruct the principal view from a neighboring (need not be contiguous) Lot, or residence. If trees or shrubs grow on a Lot (herein called the 'Tree Lot') so as to obstruct the view from a neighboring (need not be contiguous) Lot, or residence (herein called the 'View Lot'), the Owner of the View Lot shall have the right to require the Owner of the Tree Lot to trim, top, or remove the trees/shrubs so as to restore the principal view from the View Lot."

The CC&Rs further describe the procedure for resolving view-related disputes between neighbors. An owner whose principal view is obstructed notifies the owner of the Tree Lot of the need to trim, top, or remove the offending trees or shrubs. The owners must meet and confer about the scope of work required. If they cannot agree or refuse to discuss the issue, it is submitted to the board of directors for mediation. The owner of the View Lot must obtain any required permits and bear the cost of the work.

When defendant purchased her home in 1974, the existing restrictive covenants did not require tree trimming except for obstructions on adjoining properties.[1] Nevertheless, over the years defendant's trees were topped or removed upon request when they intruded into the view from plaintiffs' home. Plaintiffs purchased their home in 1988, based in part on the "panoramic view." In 1998 and again in 2001, concerned about the damage and disease caused by overly aggressive trimming, defendant resisted plaintiffs' requests to top or remove the obstructing trees. Nevertheless, she hired consultants to advise her on the best procedure to remedy the situation without killing the trees.

In September 2001 the current CC&Rs were adopted with an extended application of the "principal view" conditions to neighboring (rather than merely adjoining) properties.[2] In February of that year, while defendant was absent, plaintiffs arranged for trimming of a tree they called the "house tree" near defendant's front door. More trimming of this tree subsequently occurred. By the time of trial that tree had died but had not yet been removed. In March of 2002, after a site visit from the association president, defendant permitted cutting and removal of some of her trees, but to plaintiffs, the outcome was inadequate. The board met in early April and decided to present plaintiffs with the proposal of defendant's arborist, Robert Cain. Cain had recommended a two-stage pruning in March and September to preserve the health of the trees. The board agreed that if plaintiffs refused to acquiesce in this plan, then the trees would be declared in violation of the CC&Rs, and the board would leave the matter to litigation between the parties. Plaintiffs refused the compromise.

In September 2002, plaintiffs filed a complaint for an injunction to require the topping or removal of the remaining interfering trees. After further mediation and another board visit to plaintiffs' home in October 2002, defendant agreed to remove two more trees, leaving only the "house tree" and a "driveway tree" in dispute. Defendant subsequently promised to remove the dead house tree, so it was eliminated from the dispute.

In early November 2003, the board again evaluated the view from plaintiffs' home. In a letter addressed to defense counsel, Robert Sinotte, the association president, stated that the board's "unanimous opinion" was that "most of the Cordan's' [sic] Primary View has been restored but Mrs. Kahn still needs to perform additional topping of a few trees to fully restore Cordan's Primary View."

In July 2004 defendant filed an amended cross-complaint against plaintiffs and the governing homeowners association, challenging the validity of the restriction and seeking reimbursement for tree cutting and stump removal on her property.

The association board again visited the Cordan residence in January 2005. As in the previous visits, defendant was not present and had not been invited.[3] After the meeting, the board secretary recorded the following conclusion: "Although Mrs. Kahn has done a very good job of restoring much of the view for the Cordan's [sic], there is one tree near her driveway that needs to be trimmed about 3' and one dead tree in front of her house that needs to be removed in order to totally restore the Cordan's [sic] view from the primary viewing area in their home." The following month four board members met with defendant. Sinotte summarized the meeting in a letter approved by the other board members. The board expressed sympathy for both parties but concluded that "further intervention by the Board would be unwise." Nevertheless, they paid an unofficial visit to defendant in late February 2005 and learned her perspective on the matter. Plaintiffs at that time refused further inspections from their house, and the board once more decided to take a neutral position. Eventually defendant settled her claims against the association.

In late June of 2005, trial finally took place. The parties disputed the location from which the "principal view" should be measured as well as the scope of the principal view itself. Plaintiffs argued that the "principal" viewing locations had always been the family room, the kitchen/breakfast room, the deck outside the family room, and the patio. They described their principal view as "a panoramic view with the horizon trees on the bottom of it, and it extends south of the point of P[oin]t Lobos and north to the view of--just short of the trees on the right side." Defendant maintained that plaintiffs were attempting to expand their view beyond what she considered "principal"--i.e., the view of Point Lobos to the southwest. Defendant pointed out that she had already removed seven trees by this time; her "house tree" was dead from overtrimming and the "driveway tree" would "probably die from an apparent act of vandalism."[4] Defendant stipulated to keep the driveway tree at its present height, as recommended by her arborist. Plaintiffs, however, requested an injunctive order requiring the topping of the driveway tree an additional three and one-half feet to five feet, along with retention of jurisdiction over future intrusions.

Before hearing testimony on the first morning of trial, the judge visited the parties' homes, including the outside of defendant's house and the inside of plaintiffs'. After plaintiffs presented testimony from Alan Cordan and Robert Sinotte and rested their case, defendant moved for judgment under Code of Civil Procedure section 631.8. After hearing argument, the trial judge granted the motion, based on the observations he had made during the site visit. The court agreed with plaintiffs that in this development, the view takes precedence over the trees: "[O]n the issue of view versus tree . . . the view does prevail in this case. If there was [sic] a tree obstructing the principal view, the tree would have to go. It's part of the CC&Rs." The CC&Rs, however, were not helpful here, as they offered no definition of "principal view." Rejecting plaintiffs' argument, the court ruled that the term did not mean the exact view that existed when plaintiffs bought their property in 1988. Giving "regular meaning" to the words, the court defined "principal view" as the one with "primary importance, the primary view." Drawing on his observations from plaintiffs' house, the judge noted that "the view you see is the ocean, the Point Lobos, that's the primary view. And the requirement that there be no obstruction of that primary view does not mean that there not be some modification, minimal modification, of it. Quite frankly, the most germane piece of evidence was the view that I took out there, and I could not find that there was an obstruction of the primary view." Thus, although plaintiffs might not have the same view as they had in 1988, "that's not what the CC&Rs require and that's what we're guided by. The primary view exists, the principal view exists and . . . it is not obstructed."

Discussion

1. The "Principal View"

Up to a point, the parties concur. They agree that CC&Rs do not define the term "principal view." Neither claims that the term is ambiguous and each recognizes that the court's determination necessarily turns on the facts before it. They nonetheless diverge when discussing the trial court's application of the provision to their own case. Plaintiffs insist that the trial court misinterpreted the CC&Rs by permitting a "modification" of the view. This ruling was erroneous, they argue, because the CC&Rs do not allow an obstruction "to any extent." Plaintiffs contend that their principal view "is that which existed before any trees on nearby properties grew to such heights so [sic] as to interfere with the view [that] existed." In other words, it is "the panoramic view of the Pacific Ocean and Point Lobos above the far tree horizon line," which was not obstructed by a driveway tree when the first version of the CC&Rs was recorded in 1967. No modification of that view was permitted. Defendant responds that the court properly made a factual finding supported by substantial evidence.

The language of CC&Rs must be interpreted, as in all written instruments, in their ordinary and popular sense. (14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1410; Ticor Title Ins. Co. v. Rancho Santa Fe Assn. (1986) 177 Cal.App.3d 726, 732.) We agree with the parties that the disputed provision is not ambiguous. The court suggested that "principal" was equivalent to "primary," and neither party disagrees. But there is nothing in the CC&Rs that compels the further conclusion that "principal view" necessarily encompasses the "expansive," "panoramic" landscape presumably visible from their home in 1988.

Plaintiffs contend that the board itself made a decision regarding the scope of their principal view, and that the court erred in supplanting and revising that determination. The board did not make a decision to which judicial deference was required. As provided in the CC&Rs, the board was attempting to mediate the dispute, not reach a binding determination. At various times during the dispute, the board visited plaintiffs' home and expressed its opinion that one or more of defendant's trees was in violation of Article V(4)(b). Defendant was not invited either to defend her position or to participate in the visits before the board wrote the letters advising her of its conclusions. The question of whether plaintiffs' principal view was obstructed was thus properly before the trial judge, who made his factual findings consistent with the CC&Rs and his own observations.

Plaintiffs insist, however, that the court impermissibly modified their principal view. We agree with plaintiffs that "modification" of the principal view would not be permitted if it created an obstruction. But we cannot subscribe to plaintiffs' assumption that "modification" is synonymous with obstruction. The trial court clearly stated that the driveway tree "d[id] not obstruct the principal view," even if there was some modification. This was a factual determination within the province of the court as trier of fact.

The trial court exercised that authority in accordance with the CC&Rs. It considered evidence received from Alan Cordan as well as plaintiffs' primary supporter on the board, Robert Sinotte. Even Sinotte, a strong proponent of preservation of views at the expense of trees, acknowledged that the CC&Rs did not define "principal view" or specify the time from which the restoration of the principal view must be measured. He believed that the "principal view" necessarily varied for each house, because "some houses have a principal view from their patio only. Some houses have a principal view from their primary sitting areas of their home. Each house has a different principal view." The court took into account this testimony as well as its own observations from various locations in plaintiffs' house. We can find nothing in the record to indicate that the court erred in determining that plaintiffs' principal, or primary, view was not obstructed.

Plaintiffs' reliance on Seligman v. Tucker (1970) 6 Cal.App.3d 691 and Ezer v. Fuchsloch (1979) 99 Cal.App.3d 849, does not alter the result. In Seligman, the restriction at issue forbade the erection of any structure that would "unreasonably obstruct the view from any other lot." (6 Cal.App.3d at p. 693.) The appealing defendants conceded that their construction "substantially obstructed" the view from plaintiffs' home. (Id. at p. 695.) Their primary complaint was that the restriction was too vague and uncertain, as it did not adequately define what constituted an "unreasonable" obstruction. Affirming the trial court's issuance of an injunction, the appellate court rejected the defendants' contention. The court held that "normally conscientious persons of average prudence and intelligence" would have a general concept of what would be unreasonable. (Id. at p. 697.) Where disputes existed, it was for the court to determine what was reasonable. (Ibid.) Thus, just as in this case, what constituted a violation of the restriction was a factual matter that turned on the particular provision at hand as well as the circumstances of the alleged violation.

Similarly, in Ezer v. Fuchsloch, supra, 99 Cal.App.3d at page 860, the restrictions forbade the planting of any tree or shrub that might "at present or in the future obstruct the view from any other lot." The trial court granted an injunction requiring the appealing defendants to cut down and maintain their obstructing trees so they would no longer interfere with the plaintiffs' view. On appeal, these defendants argued that the roof-top height at which the trial court limited their tree's growth was unreasonable and arbitrary. The written restrictions did not set a particular level at which trees must be trimmed, and theirs had caused only a one-degree interference with the plaintiffs' view. The defendants further contended, as in Seligman, that the phrase "obstruct the view" was too ambiguous to be interpreted to require trimming to the level ordered by the trial court. (Ibid.) The appellate court, however, found "nothing vague or ambiguous" about the restrictions, which appeared to be "clearly designed to maintain the area above the one-story homes free and clear in order to preserve the view of the individual lot owners at various elevations." (Id. at p. 862.) The disputed provision had to be construed "to subject defendants' property to the restriction against the height of trees which would interfere with a neighbor's view." (Ibid.) The trial court's limitation of the trees to roof-top level was a reasonable interpretation of this restriction.

Nothing in either of these cases contributes to an analysis of the case before us. There is no issue here that the "principal view" language is vague or ambiguous, and the trial court engaged in the same function as did the courts in Seligman and Ezer-- a determination of whether the restriction had been violated in the specific circumstances presented.

Plaintiffs' assertion that the court's findings are not supported by substantial evidence is misleading. The argument comprises two parts. First, they contend that the court was bound to defer to the good-faith "unanimous determinations" of the board that their principal view was obstructed. We have already rejected that argument. Second, plaintiffs contend that the court's modification of their principal view was "patently unreasonable" because it was based on a "moving standard"--that is, a growing tree. The problem, as plaintiffs see it, is that as the tree grows, greater portions of their principal view will be obstructed, which will "surely lead to further disputes and litigation." This complaint is both irrelevant and premature. The CC&Rs and the court's order both acknowledged the reality that live trees grow. Both recognized that there will have to be periodic tree trimmings to maintain plaintiffs' principal view. It is not clear what else plaintiffs expect. Obviously, if her trees again grow too high, defendant will be obligated to abide by Article V(4)(b). Whether more disputes and costly litigation occur is entirely up to the parties.

2. Attorney Fees

Defendant not only successfully defended against plaintiffs' complaint but recovered $5,065 for the cost of tree trimming and removal, which plaintiffs were obligated to pay under Article V(4)(b). The court subsequently declared defendant to be the prevailing party and awarded her $51,395.98 for her costs and attorney fees. Plaintiffs challenge the standard the trial court used in determining "prevailing party" status. They further contend that the facts compel a finding that they prevailed in the litigation.

Plaintiffs correctly cite Civil Code section 1354, subdivision (c) (section 1354(c)), which provides for the recovery of attorney fees and costs in an action to enforce CC&Rs in "common interest" developments. This statute states in pertinent part, "In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs." The CC&Rs also include a provision for reasonable attorney fees and costs to the prevailing party.

In applying section 1354(c), the appellate courts of this state have relied on the standard described in Heather Farms Homeowners Association v. Robinson (1994) 21 Cal.App.4th 1568, 1574, which calls upon trial judges to determine "which party prevailed on a practical level." (See also Villa De Las Palmas Homeowners Association v. Terifaj (2004) 33 Cal.4th 73, 94 [homeowners association prevailed on a practical level by achieving its main litigation objective]; cf. Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1022-1023 [under practical approach, court analyzes extent to which each party realized its litigation objectives].) We review that determination for abuse of discretion. (Heather Farms Homeowners Association v. Robinson, supra, 21 Cal.App.4th at p. 1574.)

Plaintiffs maintain that they were the prevailing party because they achieved their main litigation objective and defendant did not. Of the two causes of action in their complaint, they proceeded to trial on one. Plaintiffs succeeded, they claim, because the "vast majority of [their] principal view was restored . . . as a result of the filing of the lawsuit." Defendant, on the other hand, stated eight causes of action in her cross-complaint and went to trial on only two: trespass (for the girdling) and reimbursement for the tree trimming. The court found against defendant on the trespass claim. And as to the reimbursement claim, plaintiffs "were always willing to pay for the reasonable costs of prior work on the trees that restored their principal view." According to plaintiffs, the dispute was over the amount: they did not want to pay for the two-stage plan recommended to defendant by her expert, which would not restore their principal view. The trial court, plaintiffs point out, did not award defendant costs for this expert's services.

Plaintiffs make other points that assertedly weigh in their favor, but none compels reversal.[5] What is success on a "practical level" under section 1354(c) is not the same as the success one might achieve in a completely different context such as public interest litigation. (Cf. Graham v. DaimlerChrysler Corporation (2005) 34 Cal.4th 553 [endorsing and applying catalyst theory in consumer-protection lawsuit].) Here the court, in a proper exercise of discretion, apparently took into account plaintiffs' lack of success in the continued litigation over the driveway tree, while defendant prevailed in her reimbursement claim. We can find nothing irrational, arbitrary, or contrary to the intent of section 1354(c) in the court's determination that defendant was the prevailing party in the circumstances presented. (Cf. Moran v. Oso Valley Greenbelt Ass'n (2004) 117 Cal.App.4th 1029, 1034; Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359 [discretion in awarding or denying statutory fees must be exercised so as to effectuate purpose of fee statute].) No abuse of discretion is evident on this record.

Disposition

The judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] Between March 1967 and September 2001, the development operated under a similar version of the CC&Rs, which prohibited the obstruction by trees or shrubs of "the principal view from an adjoining dwelling."

[2] Alan Cordan testified that he was on the committee that revised the CC&Rs. He believed the existing "adjoining dwelling" language was ambiguous and should be changed to apply to "neighboring" properties. Eliminating this ambiguity was one of the reasons the CC&Rs were revised.

[3] Sinotte admitted that the board never conducted a hearing at which defendant was present until February 2005.

[4] Defendant's arborist testified that when he inspected defendant's property in early June of 2005, he noticed that her driveway tree had been subjected to girdling, a kind of cutting that removes the bark and kills the tree.

[5] Plaintiffs assign as a reason they deserved costs the court's statement that one neighbor's view prevails over another's trees, along with the court's observation that the driveway tree would need yearly trimming. These ostensible reasons require no discussion beyond the obvious point that they were not ultimate findings on the material issues at trial.