Petty v. Hill

Filed 10/3/06 Petty v. Hill CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Patricia Yim Cowett, Judge. Affirmed.

I.

INTRODUCTION

Defendant Steven Hill appeals from a judgment of the trial court in favor of his neighbors, Lisa and David Petty, that requires Hill to remove additions to the roof of his home. This is Hill's second appeal in this matter. Hill previously appealed from a judgment entered in favor of the Pettys in which the trial court concluded that in remodeling his house, Hill violated an implied right against material view obstructions contained in a Declaration of Restrictions (CC&R's) that was created for and governed the nine-lot subdivision in which the Hill and Petty residences are located (Dillon Heights). In that appeal, this court reversed the judgment of the trial court, concluding that the trial court erred in interpreting the CC&R's to contain an implied right against material view obstructions. Because the trial court had not determined whether the Hill remodel violated express provisions of the CC&R's, as the Pettys had claimed, we remanded the matter to the court for further proceedings.

Upon remand, the case was reassigned to a different judge. That judge reviewed the record of the earlier trial to ascertain whether the Hill remodel violated any of the express provisions of the CC&R's. After a hearing on the matter, the court determined that the additions Hill made to his house violated three express provisions of the CC&R's: the restriction in the CC&R's that limits homes to "one story or split level;" the requirement that proposed renovations be submitted to an architectural committee; and the requirement that any plans for houses be prepared by a licensed architect. The court imposed a mandatory injunction that requires that Hill remove the structures he added to the roof of his home.

On appeal, Hill contends that the trial court (1) erred in using the definition of "story" as set forth in the 2002 San Diego Municipal Code (Municipal Code) to construe the CC&R's; (2) erred in concluding that Hill violated the CC&R's by failing to submit his plans to an architectural committee, because no such committee existed; and (3) abused its discretion in issuing an injunction directing that Hill remove portions of the roof additions, rather than requiring that he pay the Pettys damages for any loss of value their property suffered as a result of his remodel.

We conclude that the trial court did not err in using the 2002 Municipal Code to determine that Hill's remodel constituted an improper additional story. We further conclude that there was sufficient evidence to support the trial court's determination that the additions do, in fact, violate the provision of the CC&R's that limit Dillon Heights homes to one story or split level in design. Because we conclude that the Hill remodel violates this express provision of the CC&R's, we need not consider whether the trial court erred in finding an additional violation relating to the requirement that plans be submitted to an architectural committee. Finally, we conclude that the trial court did not abuse its discretion in issuing a permanent injunction that requires that Hill remove portions of the remodel.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

1. The Hill remodel

We take much of the factual background section from our previous opinion, in which we set forth in detail the underlying facts in this case.

Hill owns a house that sits just behind and below the Pettys' house. The Pettys have a view of Mission Bay from their backyard. Hill's mother, Valorie Hill (Mrs. Hill), purchased the property at issue in 2000. The home Mrs. Hill purchased included one level of rooms located at street level, and one level of rooms located below grade, as a result of the backyard's downhill slope. Mrs. Hill intended to make the house her primary residence.

After she purchased the property, Mrs. Hill made plans to remodel the home. She obtained the necessary permits, and construction began in March 2001.

The plans for the remodel included the construction of a deck on the roof above the street level portion of the home. Although the deck was to have no cover, the plans included a wall surrounding the rooftop deck. In May 2001, the Pettys raised concerns about the height of the proposed remodeled house. They complained to Hill that the structure would obstruct their view, thereby violating the CC&R's. Mrs. Hill made the remodel plans available to the Pettys, and Mr. Petty, who is a principal in a construction company, reviewed the plans. The Pettys registered no further complaints, and construction on the remodel went forward.

As the remodel of the house proceeded, Mrs. Hill's health began to decline. Because of her declining health, Steven and his mother decided to alter the remodeling plans for the deck to include a residential elevator, which would allow Mrs. Hill access to the rooftop deck. The new plans included a small housing and attic area associated with the elevator. The Hills submitted the modified plans, which included the elevator, to the City of San Diego. The plans were approved in November 2001. In December 2001, Mrs. Hill conveyed the property and residence to Steven.

In December 2001, after noticing that the remodel was not proceeding according to the plans Mr. Petty had reviewed earlier in the year, the Pettys again complained to Hill, through a letter from their attorney, that the remodel violated the CC&R's. Hill offered to make the revised plans available for the Pettys to review, but the Pettys did not accept this offer. Hill continued with the remodel.

2. The CC&R's

The Dillon Heights neighborhood comprises nine homes, including the Hill and Petty residences. Use of the properties in the Dillon Heights neighborhood is governed by a four-page set of CC&R's, which were drafted and became effective in 1968. The CC&R's have never been amended. Both the Pettys and Hill were aware of the CC&R's at the time they purchased their respective properties.

The CC&R's contain 25 provisions, many of which restrict the types of activities that may take place on the Dillon Heights properties. Paragraph 1 requires that each lot be used only for a single family residence, that the homes be at least 1,800 square feet in size, and that they be either "one story or split level in design." Paragraph 1 contains other restrictions relating to additional structures on the land and the painting of garage cabinets that are visible from the street.

Other provisions in the CC&R's include restrictions pertaining to noxious or offensive activity, temporary buildings, animals, set back distances, slope and drainage easements, maintenance, landscaping, mailboxes, plans and specifications, exterior lighting, and access to other land. Paragraph 8 refers to view obstructions. It prohibits television and radio antennae higher than the highest point of the house, flag poles and certain types of trees "[i]n order to retain as unobstructed a view as possible . . . ."

Paragraph 13 provides: "No building or other structure or improvement shall be commenced upon any of said lots until the location and the complete plans in [sic] specifications including the color scheme of each building, fence and/or wall to be erected upon the lot have been approved in writing by the Architectural Committee. The plans for all houses must be drawn by a licensed architect." Paragraph 17 provides that the architectural committee "shall consist of R.J. Dillon and Son, Inc., or Florence G. Dillon."^[1]

B. Procedural history

1. The first trial and prior appeal

On February 22, 2002, the Pettys filed a lawsuit against Hill, asserting claims for interference with property rights, violation of recorded restrictions, and declaratory relief. On March 14, 2002, the Pettys moved ex parte for a preliminary injunction to halt further construction on the Hill residence remodel. The trial court denied the request for a preliminary injunction, and the case proceeded to trial. Construction on the remodel was completed by the time of trial, and the house had passed final inspection by the City of San Diego.

The court held a four-day bench trial in February 2003. The Pettys presented nine witnesses, including two experts. Hill presented three witnesses, including two experts.

After the trial, the court concluded that the CC&R's contained an implied restriction on additions that materially obstruct views of the other homes in the subdivision, and entered a judgment in favor of the Pettys. The court imposed a mandatory injunction against Hill, requiring him to alter the remodeled rooftop deck of the residence once he no longer needed it for his mother's use.

Hill appealed, contending that the court had improperly determined that he had violated an implied right against material view obstructions, since the CC&R's provide no such right. We concluded that the CC&R's do not contain an implied right to an unobstructed view. Because the trial court failed to provide any other basis for its order, we reversed and remanded the matter to the trial court with instructions to determine whether the Hill addition violated any of the express provisions of the CC&R's, as the Pettys had claimed.

2. Proceedings after remand

On remand, Hill challenged the trial judge and the case was reassigned to the Honorable Patricia Yim Cowett. Judge Cowett reviewed the exhibits and the transcript of the previous trial, and went to the location to view both homes. The parties submitted no additional evidence to the court. Judge Cowett issued a tentative decision and set the matter for oral argument.

In the tentative ruling, Judge Cowett concluded that the attic space and the elevator housing on the roof deck constituted a story, and thus violated the restriction in paragraph 1 of the CC&R's requiring that the homes be no more than "one story or split level." The court cited testimony from the Petty's architectural expert in which he testified that the attic space and the elevator housing met the definition of the term "story" as defined in the Municipal Code. The trial court also concluded that the rooftop additions violated paragraph 1 of the CC&R's, because the plans for the improvements had not been approved in writing by the architectural committee, and also because the plans were not prepared by a licensed architect.

At oral argument, Judge Cowett confirmed the tentative decision and thereafter entered judgment, on July 5, 2005, adopting the findings in the tentative decision and imposing a mandatory injunction ordering that Hill remove the elevator shaft/housing and the attic space, within six months.

A notice of entry of the judgment was served by mail on July 28, 2005. Hill filed a timely notice of appeal on September 8, 2005.

III.

DISCUSSION

A. The trial court did not err in determining that the Hill rooftop addition constitutes

a story under the CC&R's

1. The trial court reasonably interpreted the CC&R's

Hill contends that the trial court erred in concluding that the addition to his home constitutes a prohibited second story under the CC&R's on the ground that it met the Municipal Code's definition of story.^[2] He argues that the drafters of the CC&R's did not have in mind "the complex set of criteria and measurements set forth and used in the 2002 San Diego Municipal Code to determine whether a portion of a structure constitutes a story," and maintains that the court failed to properly ascertain what the parties intended at the time they created the restriction in 1968. Hill further contends that fundamental canons of interpretation require that ambiguities in the meaning of provisions of an instrument creating a servitude be resolved in favor of the free use of land, and that the trial court thus should have rejected the more restrictive definition of "story" in the Municipal Code in favor of a less restrictive definition that was provided by an appraisal expert who testified at trial. We conclude that the Municipal Code's definition of "story" provides a reasonable interpretation of what the parties intended when they sought to limit the number of stories of the homes in the Dillon Heights neighborhood.

The interpretation of the CC&R's, like any other written instrument, is essentially a judicial function to be exercised according to generally accepted canons of interpretation so that the purpose of the instrument may be given effect. (See Greater Middleton Association v. Holmes Lumber Co. (1990) 222 Cal.App.3d 980, 989.) "'Extrinsic evidence is "admissible to interpret the instrument, but not to give it a meaning to which it is not reasonably susceptible" [citations], and it is the instrument itself that must be given effect. [Citations.] It is therefore solely a judicial function to interpret a written instrument unless the interpretation turns upon the credibility of extrinsic evidence. Accordingly, "[a]n appellate court is not bound by a construction of the [instrument] based solely upon the terms of the written instrument without the aid of evidence [citations], where there is no conflict in the evidence [citations], or a determination has been made upon incompetent evidence [citation]." [Citations.]'" (Ibid.)

"'The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.' [Citation.] 'Such intent is to be inferred, if possible, solely from the written provisions of the contract.' [Citation.] 'If contractual language is clear and explicit, it governs.' [Citation.]" (Foster-Gardner, Inc. v. National Union Fire Ins. Co. (1998) 18 Cal.4th 857, 868.) "The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed." (Civ. Code, § 1644.) "Technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless clearly used in a different sense." (Civ. Code, § 1645.) "The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless admissible that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly." (Code Civ. Proc.,^[3] § 1861.)

A contract term will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable. (See, e.g., Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18, 44.) The CC&R's are "'to be interpreted so as to give effect to the main purpose of the contract . . . [and] where a contract is susceptible of two interpretations, the courts shall give it such a construction as will make it lawful, operative, definite, reasonable and capable of being carried into effect [Civ. Code, § 1643] . . . [and] avoid an interpretation which will make [the CC&R's] extraordinary, harsh, unjust, inequitable or which would result in absurdity.'" (Howe v. American Baptist Homes of the West, Inc. (1980) 112 Cal.App.3d 622, 626-627.)

The CC&R's limit homes in the Dillon Heights neighborhood to "one story high or split level." Neither of these terms is defined in the document and the record does not contain any evidence as to what, exactly, Florence Dillon intended to prohibit by limiting the houses to "one story or split level" in 1968. Thus, it is up to the court to determine the "ordinary and popular sense" of the term. Although the parties did not specifically attempt to define the term "story" at the trial, by offering testimony from expert witnesses as to whether the Hill rooftop additions constitute an additional story, the parties effectively offered the trial court two reasonable, but different, definitions of "story."

The trial court chose to interpret the term "story" as used in the CC&R's in accordance with the definition of the term in the Municipal Code in concluding that the Hill remodel constitutes a prohibited additional story. Bruce Greene, an architect who testified as an expert for the Pettys, said that the Hill rooftop remodel constituted a story under the definition of "story" in the version of the Municipal Code in effect at the time Hill undertook the rooftop remodel.^[4] Under the Municipal Code, a story is "that portion of a building between finish-floor elevations, between finish-floor and roof elevations, and between grade and finish floor elevations." (Mun. Code, § 113.0261, added 12-9-1997, effective 1-1-2000.) The Municipal Code also deems an attic^[5] to be a story if it meets one of the following criteria:

"(1) It has a mansard or similar roof;

"(2) It has a height that exceeds 7 feet, 6 inches from the

finish-floor elevation to the peak of the roof immediately

above;

"(3) It has dormers projecting from a sloping roof where the

attic can be used as a habitable area, unless the dormer is

designed exclusively for ventilation and is not accessible

from a habitable area; or

"(4) The proposed floor area of the attic exceeds one-half of

the floor area of the story immediately below." (Ibid.)

Greene testified about the difference between what is considered a "story" when a flat roof is involved, as compared to when a sloped roof is involved (which creates an attic space): "If it has a sloped roof, then it's seven-foot-six from finished floor to the highest point, the peak of the sloped roof. If it's a flat roof, there really is no minimum. If it's got a floor and a roof, it's a story by definition. In the Municipal Code, that area between the floor and the roof is a story." (Italics added.)

Hill contends that the trial court should have rejected this definition in favor of one proffered by an appraisal expert Hill called as a witness at trial. Stephen Fox, the appraiser, testified that one generally accepted definition of the term "story" is "permitted living area above a living area below." Hill argues that this definition is less restrictive than the definition offered by the Pettys, and that the court should have adopted this definition because restrictive covenants are to be construed against those who seek to enforce them and in favor of the free use of land.

We conclude that the Municipal Code's definition of "story" provides an appropriate interpretation of what the Dillon Heights CC&R's sought to restrict. It is reasonable to look to the Municipal Code that was in effect at the time of construction to aid in interpreting an otherwise vague and ambiguous term in the CC&R's, particularly when there is no other evidence that sheds light on what the parties' intended the word to mean at the time the CC&R's were adopted. Moreover, it is reasonable to consider that the parties intended that any plans for new construction on the houses in Dillon Heights would meet and/or incorporate any changes in zoning regulations or in the Municipal Code. The Municipal Code contains easily understood and identifiable standards for determining what is and what is not a story, and its definition of "story" is reasonable in scope. In contrast, the potential ramifications of the definition Hill advocates render it a less reasonable interpretation of what the CC&R's were intended to prohibit.

First, it is unclear what, exactly, the phrase "permitted living area" means. Nothing in the CC&R'S suggests that there was any intent to limit the meaning of "story" to structures that are suitable for occupancy. Although Hill's proffered definition is unquestionably less restrictive than the definition in the Municipal Code, there is good reason to use the definition provided in the Municipal Code rather than the definition "permitted living space." It is not reasonable to define a story by how the space in question is used; rather, what is pertinent for purposes of the CC&R's is the effect of the additional space on the size, height, and appearance of the home. If "story" were defined as a "permitted living area above a living area below," this would allow construction of enclosed spaces for storage or for purposes other than living, regardless of the size or height of the enclosed space.

The types of additions that might be allowed under the definition Hill suggests do not comport with the implicit purpose of the one story limitation contained in the CC&R's, which was to limit the height of the homes in the Dillon Heights neighborhood. Although the CC&R's do not place a specific height restriction on the homes, it is reasonable to conclude that the CC&R's limited the homes to one story or split level in order to prevent the homes from obstructing the views of neighbors. It is clear that, at least in part, the CC&R's were intended to help protect the views, and the corresponding value, of all of the properties in the subdivision. Introductory language in the CC&R's states that the restrictions were "agreed upon for the purpose of enhancing and protecting the value, desireability [sic] and attractiveness of the lands and every part thereof." Testimony at trial established that the property views would add significantly to the resale value of the homes.^[6] Thus, although there is no express right to an unobstructed view in the CC&R's, it is reasonable to interpret the express provisions of CC&R's in a manner that incorporates an intent to protect the value of the land, which would include the residents' views. It is thus appropriate to interpret the term "story" in a manner that furthers the intent of the CC&R's to protect views. This interpretation is more closely aligned with the definition of "story" the Pettys propose. We conclude that the more reasonable interpretation of the term "story" in the CC&R's is in relation to the creation of enclosed space between a finish-floor and a roof elevation, rather than how the enclosed space is used.

2. Substantial evidence supports the trial court's finding that the

Hill remodel constitutes a "story"

We review the trial court's finding that the remodel constitutes a "story" to determine whether there is substantial evidence to support the finding. (See Howard Contracting, Inc. v. G.A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 49.)

The evidence presented at trial establishes that the Hill remodel constitutes a prohibited "story" under Municipal Code. Specifically, there was expert testimony that the storage space and the elevator housing constitute a story. Greene testified that the inside of the storage space measured seven feet tall. At trial, Hill suggested that the structure on top of the roof was an attic, and not a story. However, Greene testified that even if the storage area were considered an "attic," it still met the definition of a "story" under the Municipal Code because it measured more than seven feet six inches from the floor to the highest point of the roof. Greene was asked: "Now, why is it significant to you as to whether it's an attic or not?" He responded: "Well, you know, in all honesty, it doesn't make a lot of difference to me because it's a story either way. If it's a true attic, then if there is seven-[feet]-six or more from the finished floor to the peak of the roof, it's a story. If it's not an attic, it's a story." Later, Greene testified,

"Yes, once again, if someone should find it's an attic--if it's seven-foot-eight or so to the bottom of the roof, it's more than seven-foot-six [i.e., the requirement for an attic to be considered a story under the Municipal Code], clearly, to the highest point of the roof. I don't believe it to be an attic. I believe it to be simply a story because it's a flat roof space. One can walk about. It's finished space. It's a story."

The Pettys introduced in evidence multiple photographs of the Hill remodel that showed a structure, built above the ground floor, with walls and a roof. The photographs establish that the roof of the structure was high enough for a person to stand inside. While testifying about this set of photographs, Greene said that the height from the roof deck to the top of the wall next to the elevator shaft was approximately eight feet three inches. It is difficult to conceive how this structure could be considered to be anything other than a story under any reasonable definition of that term.

We conclude that there is substantial evidence to support the trial court's conclusion that the storage area and elevator shaft built as an addition on the rooftop of the Hill house violates paragraph 1 of the CC&R's.

Because we conclude that the Hill remodel violates Paragraph 1 of the CC&R's, and this is sufficient to support the granting of relief, we need not consider Hill's challenge to the trial court's conclusion that the Hill remodel violates paragraph 13 of the CC&R's because it was not approved in writing by the architectural committee. The relief the Pettys sought for a violation of paragraph 13 is the same as the relief they sought for a violation of paragraph 1.

B. The trial court did not abuse its discretion in granting injunctive relief

Hill contends that the trial court abused its discretion in issuing an injunction that requires him to remove the elevator shaft and storage structure. Hill maintains that any harm the Pettys suffered as a result of his violations of the CC&R's are compensable by monetary damages, and thus, injunctive relief is not warranted.

"'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 grant or denial of a permanent injunction rests within the trial court's sound discretion and will not be disturbed on appeal absent a showing of a clear abuse of discretion. [Citation.]" (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 390.)

Hill contends that the trial court abused its discretion by failing to recognize the general rule that injunctive relief may not be granted if the plaintiff can be fully compensated for the alleged harm through an award of damages, citing Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352; Morrison v. Land (1915) 169 Cal. 580, 586; and Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 414. Hill notes that an appraisal expert he retained testified at trial that the view obstruction caused by his remodel had a value of approximately $7,800. Hill maintains that valuations of views are conducted in connection with real estate transactions on a regular basis, and that the value of the loss of the view in this case can be, and in fact was, determined such that the Pettys can be fully compensated for any loss of value to their property.

It is not clear that monetary damages will in fact afford adequate relief in this case. None of the cases Hill cites for the general rule of law involved a cause of action premised on an alleged violation of CC&R's, nor do those cases involve disputes over land.

Although there are a variety of ways in which an owner in a common interest development may enforce the restrictions of the CC&R's, the usual remedy, historically, has been an injunction to prevent further violation of the restrictions. (See 8 Miller and Starr, California Real Estate (3d. ed. 2001) Covenants, Conditions and Restrictions § 24:18, citing Seaton v. Clifford (1972) 24 Cal.App.3d 46, 52; Arrowhead Mutual Service Co. v. Faust (1968) 260 Cal.App.2d 567, 581; Bramwell v. Kuhle (1960) 183 Cal.App.2d 767, 769; Mock v. Shulman (1964) 226 Cal.App.2d 263, 269; and Morgan v. Veach (1943) 59 Cal.App.2d 682, 689, 690.) This is because CC&R's are enforced as equitable servitudes. In this case, two judges have viewed the properties at issue, including the Hill rooftop addition, and both have determined that an equitable remedy requiring that Hill remove some portion of the rooftop remodel is appropriate. This is not surprising, given the unique quality of land and the nature of CC&R's. Allowing Hill to pay damages for the violation of the CC&R's would go against the essential purpose of CC&R's, which is to restrict certain activities on the land. CC&R's are created to limit what each homeowner may do on his or her property, for the benefit of all of the homeowners. If homeowners could violate CC&R's knowing that the only consequence would be that they would have to pay some amount of money for their violations, the homeowners' common interest in maintaining the value and aesthetic of all of the homes would suffer.

Hill has failed to establish that monetary damages would be an adequate remedy. Monetary damages would not cure the fact that the Hill residence has an improper story that partially obstructs the view from at least one other Dillon Heights home. Although the CC&R's do not expressly protect the homeowners' right to a view, one cannot ignore the fact that the express restrictions set out in the CC&R's were intended to protect the value, desirability, and attractiveness of the land for all of the Dillon Heights homeowners. The value, desirability, and attractiveness of the land is due, in part, to the views afforded by the location of the home lots. It was not an abuse of discretion for the trial court to determine that a violation of an express provision of the CC&R's that results in the obstruction of a view requires removal of the offending structures.

C. The Pettys have standing to continue to litigate this action in their name

During the pendency of this appeal, this court was made aware of the fact that the Pettys have sold their Dillon Heights home to a new owner. We asked the parties to submit supplemental briefs addressing the issue whether an injunction is still an appropriate remedy since the Pettys no longer live in the residence that overlooks the Hill residence, and the current owner of the residence is not a party to this action. After considering the parties' supplemental briefing and the comments of counsel made at oral argument, we conclude that the fact that the Pettys no longer own an interest in the Dillon Heights residence does not preclude the issuance of an injunction requiring that Hill conform his residence to the requirements set forth in the CC&R's.

Section 368.5 provides: "An action or proceeding does not abate by the transfer of an interest in the action or proceeding or by any other transfer of an interest. The action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." Hill contends that this statutory provision does not address the issue of the appropriateness of granting injunctive relief in this case because the statute discusses only the "transfer of an interest in the action or proceeding," and does not address the transfer of an interest in property. He asserts that because the Pettys have not specifically transferred their interest in this lawsuit to the present owner of the property, section 368.5 does not apply.

Section 368.5 addresses not only "the transfer of an interest in the action or proceeding," but also "any other transfer of an interest." The inclusion of the phrase "any other transfer of an interest" must refer to something other than a transfer of an interest in the action. Where the transfer in question is a transfer of an interest in real property -- the interest from which the right to sue for a violation of the CC&R's derives -- the catch-all phrase "any other transfer of an interest" is sufficient to place this case within the reach of section 368.5. Although the Pettys are no longer the owners of the Dillon Heights property, they may pursue this action in their names.

Other courts have cited to section 385, the predecessor to section 368.5, in allowing original parties to maintain actions in their names despite the fact that they had transferred their interests in real property to new owners. (See Luster v. Collins (1993) 15 Cal.App.4th 1338, 1345 [plaintiff had standing to continue proceeding in his name even though he transferred the property to his daughter three months before an arbitration hearing]; Parker v. Superior Court (1970) 9 Cal.App.3d 397, 400-401 [original named plaintiff was proper party despite having sold interest in property to a third party during pendency of action]; Zimberoff v. Bank of America Nat'l Trust & Sav. Association (1952) 112 Cal.App.2d 555, 557 [noting that after conveyance of property during pendency of action, either the original owners or the new owners could have maintained an action to quiet title]; Harris v. Seidell (1934) 1 Cal.App.2d 410, 414 [rejecting argument that judgment in plaintiff's favor for possession of property was improper because plaintiff had conveyed the property to a third party during pendency of the action].) We conclude that section 368.5 similarly applies in this circumstance to allow the Pettys to maintain this action against Hill.

IV.

DISPOSITION

The judgment of the trial court is affirmed.

AARON, J.

WE CONCUR:

HALLER, Acting P. J.

McINTYRE, J.

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^[1] At the time the CC&R's became effective, Florence G. Dillon owned all of the property. The nine lots that compose the Dillon Heights neighborhood were sold to different parties, and the new owners took the property subject to the CC&R's that Florence Dillon instituted.

^[2] The residence was already a two-story structure when Hill purchased the property, since it included a basement story. The basement story falls within paragraph 16 of the CC&R's, which provides that any building already completed "shall be deemed to comply with each and all of the restrictions contained herein." Hill thus cannot be found to be in violation of the CC&R's as a result of the lower-level story of the residence in question. We consider only whether the Hill rooftop remodel constitutes an additional story.

^[3] All statutory references are to the Code of Civil Procedure, unless otherwise specified.

^[4] The Municipal Code apparently did not include a definition of "story" in 1968, when the CC&R's were enacted.

^[5] According to Greene's testimony, an attic is "an area under a sloped roof that has a pitch of at least 3:12 (three vertical feet to 12 horizontal feet) with a height of at least five feet and no more than 7'6" measured from the highest finished floor elevation to the finished roof above."

^[6] Testimony from Hill's appraisal expert valued the views from the Petty property at $65,000. The Pettys' appraisal expert challenged that number, estimating that the value would be much higher, and that it could be as much as $200,000. Regardless, it is clear that the views in the Dillon Heights neighborhood are of considerable value, and that the limitation of homes to one story or split level in design was meant in part to protect those views.