BASS v. SELKO

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Court of Appeal, Second District, Division 4, California.

Marvin M. BASS and Kitty Bass, Defendants, Cross-Complainants and Appellants, v. Mark SELKO and Jewel H. Selko, Plaintiffs, Cross-Defendants and Respondents.

B010867.

Decided: December 19, 1985

Charles T. Rose, Los Angeles, for defendants, cross-complainants and appellants. Francis Mintz, Los Angeles, for plaintiffs, cross-defendants and respondents.

This is a long-standing neighborhood dispute between adjoining property owners.   Appellants Bass desired to have an uninterrupted southerly view from their lot.   Respondents Selko are the owners of adjoining property, the hedges on which block the Bass view.   Eventually the trial court appointed a referee to report to it concerning the dispute and what modifications of a preexisting injunction should be made to enable both parties so far as possible to secure their wishes.   The trial court appointed Simon Greitzer as referee.   Apparently both parties assumed that Mr. Greitzer was an attorney at law, although in fact he was not and had never attended law school or been admitted to practice.   He rendered a report and a recommendation to which the Basses objected because rendered on the basis of facts discovered by Mr. Greitzer and without the formal taking of testimony.   The trial court entered a second order directing Mr. Greitzer to take testimony and report.   This he did and the report which he made was approved by the Superior Court and this appeal followed.

The Basses object primarily on the ground that Mr. Greitzer is not a member of the bar and therefore, as they claim, unqualified to sit as referee, and the Basses also object to the report on the ground that it in effect modifies the preexisting injunction.

 Although sections 21 and 22 of article VI of the California constitution require a temporary judge to be a member of the State Bar, we can find nothing which requires a referee to be a lawyer.   The order designating Mr. Greitzer specifically directed him to recommend any appropriate proposals for a reasonable, just and effective resolution of the parties' ongoing dispute, so the Basses cannot object that Mr. Greitzer had no power to review the situation.   The fact that this action by him was taken on the basis of a second order is immaterial.   In acting as a referee, Mr. Greitzer was a servant of the Superior Court and the parties having once stipulated to him, no new stipulation was required as the trial court undertook to direct his conduct.

 The original injunction required the Selkos' hedges to be within a certain height limitation by providing for a permanent guideline of taut wire to serve as an accurate guide for the maximum height of the hedgeline.   Inasmuch as the ground on the Selko property on which the disputed hedges were located was uneven, it is obvious that a hedge measured from the ground up would not necessarily bar the view since it is the top of the hedge which controls, and the recommended modification approved by the Superior Court solves the problem of noninterference with the Basses' view since by measuring the hedges in such a way their tops are substantially an even line over their length on the so-called property.   The provision in the injunction recommended by Mr. Greitzer and approved by the Superior Court satisfies the requirement that the hedges not obscure the Basses' view.

Inasmuch as the ultimate order satisfies the purposes of the case within the Superior Court, it was proper for the trial court to award costs to the Selkos and fees to Mr. Greitzer.   Seeing nothing wrong in the order appealed from it is affirmed.

KINGSLEY, Acting Presiding Justice.

McCLOSKY and ARGUELLES, JJ., concur.