Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
DONALD KAPLAN et al., Plaintiffs and Appellants, v. WESTLAKE ISLAND PROPERTY OWNERS ASSOCIATION, Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
In this action for breach of duty to enforce building restrictions in a common interest development, plaintiffs and appellants Donald Kaplan and Joanne Kaplan (collectively “Kaplan”) appeal from a judgment following the granting of a motion for summary judgment in favor of defendant and respondent Westlake Island Property Owners Association (“Association”). Kaplan contends triable issues of fact exist that preclude the grant of summary judgment. We affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Robert and Dagmar Bocchi (collectively “Bocchi”) and Kaplan own neighboring, lakefront residential properties within Westlake Island, a common interest development (Civ.Code, § 1351, subd. (c)).1
Second Amended Complaint
Kaplan filed an action against Bocchi in May 2008 for nuisance, infliction of emotional distress, and trespass, alleging Bocchi erected a spite fence, refused access to Kaplan's surveyor, maintained offensive and damaging trees and bushes on Kaplan's property, and obstructed Kaplan's driveway and view.
On March 24, 2009, Kaplan filed a second amended complaint, adding the Association as a defendant. The Association was served on or about April 2009. The second amended complaint alleged causes of action against defendants for breach of the Westlake Island Covenants, Conditions, and Restrictions (“CC & Rs”), breach of fiduciary duty (the Association only), injunctive relief, negligence, declaratory relief, and private nuisance.
In paragraph 37 of the second amended complaint, Kaplan alleged Bocchi breached the CC & Rs, the Westlake Lake Covenants, Conditions, and Restrictions, and the Westlake Island Architectural Rules (“Architectural Rules”) by: (1) building Bocchi's house in the flood hazard area as defined by the CC & Rs; (2) building the house to an overall height of greater than 32 feet; (3) building the house so as to create a nuisance, cause unreasonable disturbance and annoyance to other residents, and detract from the scenic beauty of the lake; (4) constructing a fence in excess of six feet in height and in a manner to cause unreasonable disturbance, cause annoyance to other residents, and detract from the scenic beauty of the lake; and (5) installing offensive and damaging trees and shrubs and failing to trim said trees and shrubs so as to reasonably protect other members' views, cause annoyance, and detract from the scenic beauty of the lake. It was alleged in paragraph 40 that the Association was aware Bocchi was in violation of the restrictions in the CC & Rs, and the Association violated the CC & Rs by failing and refusing to enforce the restrictions described in paragraph 37.
The Association's Summary Judgment Motion
The Association filed a motion for summary judgment on September 3, 2009, on the following grounds as to all causes of action: the Architectural Committee's approval of plans submitted by Bocchi was consistent with its authority; the Association had no duty to stop Bocchi from building his home because the Association made its own investigation, consulted with experts, and concluded it could not find Bocchi committed a violation; and, under the CC & Rs, Kaplan's claims were against Bocchi, not the Association.
The Association argued a homeowners association's enforcement of its governing documents and architectural discretionary approvals are entitled to judicial deference and a presumption of reasonableness. As to the allegations the Bocchi residence encroached on the flood hazard area and was more than 32 in height, Kaplan failed to submit a written complaint pursuant to Architectural Rules section 7.2 and the Association received certifications the construction complied with the governing documents. When Kaplan submitted a written complaint and survey to the Association after filing the second amended complaint, the board of directors of the Association held a hearing, heard all the evidence, and concluded Kaplan's survey was flawed and there was no evidence Bocchi was in violation. As to the allegations in the second amended complaint that Bocchi constructed a fence more than six feet high and failed to trim trees to protect Kaplan's view, the Association contended the Architectural Committee approved the fence and the trees in reliance on Kaplan's approval of the fence and trees. The Association contended the fifth violation alleged by Kaplan (scenic beauty and nuisance) was so general it was meaningless. The Association further relied on sections 6.6, 7.11, and 5.15 of the CC & Rs to relieve it from liability.
Declarations and exhibits submitted with the motion include the following.
A. CC & Rs
1. CC & Rs Relating to Flood Hazard Area
Section 1.19: “ ‘Flood Hazard Area’ shall mean that area within each Lot [[2 ] between the water line of the Lake and a line parallel to and 24 feet inland from the water line.”
Section 5.6: “No habitable structure may be constructed or maintained on any Lot within the flood hazard area as shown on the subdivision map for the Lot. The flood hazard area generally consists of that area within each Lot between the water line of the Lake and a line parallel to and twenty-four (24) feet into the Lot from the water line.”
2. CC & Rs Relating to Trees
Section 6.6: “Members must keep the trees and shrubs on their Lots trimmed to the extent necessary to reasonably protect other Members' views of the skyline or Lake. In the event of a dispute, the Architectural Committee shall make a determination as to whether a view has been unreasonably obstructed․ If the Architectural Committee makes a determination that the view blockage is not unreasonable, no further action shall be taken by the Association. If either Member is dissatisfied with the Architectural Committee's determination, the matter may be appealed to the Board of Directors. If the parties are dissatisfied with the Board's determination, the issue shall be resolved through mediation or binding arbitration․ The dispute shall be limited to the Members in dispute and shall not involve the Association. If the Association ․ [is] named in the action, the same shall have the right to dismissal of the action as to such named parties․”
3. Enforcement of the Governing Documents3
Section 11.2: “The following shall have standing to enforce the provisions of the Governing Documents: [¶] a․ The Board of Directors ․ [¶] b․ Any Member․”
Section 11.4: “In addition to any other rights described in these CC & Rs and without waiving its right to institute other enforcement measures, the Governing Documents may be enforced as follows: [¶] a․ [T]he Board may assess reasonable monetary penalties for violations by Member ․ [¶] b․ A lawsuit for damages and/or injunctive relief may be filed. [¶] c․ [T]he Board may suspend the Common Area privileges of a Member ․ for failure ․ to comply with the provisions of these CC & Rs [or] Architectural Rules ․ [¶] d․ [T]he Board may suspend a Member's voting rights for failure ․ to comply with the provisions of these CC & Rs [or] Architectural Rules ․ [¶] e․ [T]he Board may list the names of all Members ․ who are in violation of the Governing Documents ․ [¶] g․ [T]he Board shall have the right to enter onto the Lot and take such actions as may be necessary to cure a violation of these CC & Rs․”
4. CC & Rs Relating to Disputes Between Neighbors
See section 6.6 above.
Section 7.11: “No member or resident may cause or permit to be caused anything which may become a nuisance or cause unreasonable disturbance or annoyance to other residents. Reasonable rules and regulations defining and restricting nuisances may be adopted by the Board of Directors ․ [¶] ․ [¶] c․ Because a nuisance is largely subjective, the Association is not obligated to become involved in such disputes except as provided for below: [¶] 1․ If the nuisance is such that it disturbs more than one Residence, the Association shall take appropriate action to abate the nuisance if the affected residents request in writing that action be taken by the Board. [¶] 2․ If the nuisance is such that it only disturbs a single Residence, then the disturbance is not sufficient to require intervention by the Association and the two parties shall resolve their dispute by Alternative Dispute Resolution as provided for in Section 1354 of the Civil Code.”
Section 11.6: “Every act or omission whereby the Governing Documents are violated in whole or in part is hereby declared to be a nuisance and may be enjoined or abated, whether or not the relief sought is for negative or affirmative action, by any person or entity authorized to enforce these CC & Rs.”
5. CC & Rs Relating to Liability of the Association
See sections 6.6 and 7.11 above.
Section 5.15: “ ․ [T]he Association ․ shall [not] be liable for any damage, loss, or prejudice suffered or claimed on account of (i) the approval or disapproval of any Plans, drawings and specifications, whether or not defective, (ii) the construction of performance of any work, whether or not pursuant to approved Plans, drawings and specifications, [or] (iii) the development of any property within the Island․” 4
6. CC & Rs Relating to Powers of the Association
Section 12.1: “The management and control of the Island shall be the responsibility of the Association acting through its Board of Directors, its officers or other duly authorized representatives or agents, in accordance with the provisions of these CC & R's ․ and Architectural Rules.”
Section 12.2: “․ [T]he Board shall ․ enforce the provisions of the Governing Documents. The Association shall have all of the powers of a non-profit corporation organized under the laws of the State of California operating for the benefit of its Members.”
B. Architectural Rules
1. Rules Relating to Flood Hazard Area
Section 1.4: The definition of Flood Hazard Area is the same as the definition in CC & Rs section 1.19.
Section 5.21, regarding restricted construction in the flood hazard area, is substantially the same as section 5.6 of the CC & Rs.
2. Rule Relating to Views
Section 2.10: “The Island's CC & R's do not provide for the protection of existing or future views from any lot. Therefore, the Association has no legal duty to preserve or protect the views of any Owner. However, as a courtesy to neighbors, consideration should be given to, wherever possible, lessening the impact any improvements may have on the views of neighboring properties.”
3. Rule Relating to Discretion of Architectural Committee
Section 2.19: “The Architectural Committee reserves the right to grant certain deviations from the Architectural Rules․”
4. Rules Relating to Solid Fencing, Bushes, Hedges, and Building Height
Section 5.8: “Solid fencing is limited to the pad area and is limited to six feet (6') in height․ [B]ushes and hedges from the top of the slope to the water ․ are prohibited.”
Section 5.24(d): “The overall height of the residence from the building pad to the highest point of the house, which includes chimneys, shall not exceed thirty-two feet (32').”
5. Procedures For Complaints and Penalties for Violations
Section 7.2: “Residents may file written complaints with the Architectural Committee if they believe any member of the Association has violated the Island's Architectural Rules. Complaint forms are available at the guardhouse or at the Emmons Company at (805) 413-1170. Forms must be signed by the person lodging the complaint. Upon receipt of the complaint, the Architectural Committee will inspect the alleged violation and take appropriate action.”
Section 7.4 provides: “Violation of the Architectural Rules can result in one or more of the following, depending on the severity of the violation:” a daily fine; suspension of construction; suspension of Membership privileges; publication of names; judicial enforcement [“The Association may take legal action for damages and/or injunctive relief”]; and recording of a notice of noncompliance.
C. Declaration of Alan Baker
Baker was chairman of the Architectural Committee for most of the eight years between 2001 and June 2009. He received many complaints from Kaplan and Bocchi about one another, inspected both properties on many occasions, and had numerous conversations with them regarding their complaints. He brokered an agreement with Bocchi which addressed three major issues between Bocchi and Kaplan, including the issue of the hedges and trees Bocchi installed to separate the two lots and a block wall Bocchi wanted to build in the front of his property to block his view of Kaplan's garage wall. In January 2006, Bocchi and the Association signed the agreement and Kaplan signed his approval (“January 2006 Agreement”).5 In February 2006, Baker confirmed Bocchi had complied with his part of the agreement.
In May 2006, the Association notified Kaplan there would be a public hearing before the Westlake Village City Council to consider Bocchi's planned construction and made available to Kaplan a copy of Bocchi's plans. Kaplan spoke at the hearing in opposition to Bocchi's project. Both the city and the county approved the project.
On April 26, 2007, Kaplan complained in writing that the trees now exceeded six feet in height. In response, the Architectural Committee wrote to Bocchi on May 17, 2007, stating that the January 2006 agreement between the Association and Bocchi allowing Bocchi to place a row of trees along the property line between Bocchi's and Kaplan's homes was intended “to provide you with a privacy ‘fence’ along the property line, which is limited in height to six feet․ The trees are above that height and need to be trimmed back․ [¶] Please trim the trees back to a height of six feet[.]” 6
In May 2007, the Architectural Committee gave final approval to Bocchi to build his new home. During construction, the board assigned a member of the Architectural Committee to measure whether the setbacks were in accordance with the approved plans, including the 24-foot setback from the water line.
Throughout 2007 and 2008, Kaplan complained that Bocchi was not keeping his trees trimmed down to six feet. Kaplan trimmed the trees himself. Bocchi accused Kaplan of trespass and damage to his property.
In November 2008, Kaplan told the Association that Bocchi's chimney exceeded the 32-foot height limitation. The Association advised Bocchi it had been notified of a height violation and reaffirmed Bocchi must adhere to the 32-foot limit. Bocchi and his contractor denied the contention, there were further meetings and measurements, and the Committee learned that the top of the chimney was lower than 32 feet but what Kaplan was complaining about was the spark arrester on top of the chimney which the City of Westlake Village required.
On December 1, 2008, the Association was served with a subpoena duces tecum in a lawsuit between Kaplan and Bocchi. This was the first the Association knew about the lawsuit.
Kaplan did not allege to the Association that the Bocchi residence encroached on the flood hazard area until after Kaplan served the Association as a defendant in this lawsuit. On June 17, 2009, Kaplan's attorney submitted to the Association a survey made on April 28, 2009, by Peak's Surveys, Inc., which indicated that the chimney height violated the height limitation, the residence encroached on the flood hazard area, the house violated the rear and side yard setback requirements, and Bocchi's wall, which was unfinished, encroached into Kaplan's cone of vision by beginning ten inches too close to the front property line. Kaplan's attorneys asked the Association to issue a stop work notice to Bocchi.
On June 22, 2009, the Association scheduled a hearing, notifying Bocchi of Kaplan's contentions and of Bocchi's right to attend. Kaplan's surveyor measured the flood hazard area from the property line, not the water line.7 The board considered its own calculations and all documents received. “[W]e believe the structure of the home is not within 24 feet of the water line, that the height of the residence including the chimney does not exceed 32 feet, and the hedges and wall were installed and erected in compliance with the January 2006 agreement Kaplan signed upon which the Committee relied. We are simply unable to determine the existence of a violation and our practice is to rely on the technical expertise of the City at various times such as this one. For Mr. Bocchi to get his final signoff from the City the latter will have to inspect the home when completed. To date neither the City nor the County has taken the position that the Bocchi residence violates any of the height or setback restrictions which are issues they too are concerned with in approving any project.” 8
D. Declaration of Glen L. Kulik
Kulik was the Association's attorney. In the course of representing the Association over the past few years, Kulik obtained from the City of Westlake and County of Los Angeles the survey by the county's surveyor which verified that the residence conformed to the 32-foot height limitation in the approved plans. Kulik relayed this survey to the Association.
E. Declaration of David Whitney
As a member of the Architectural Committee, Whitney was assigned the task of verifying whether Bocchi's construction adhered to the setback and height restrictions on the approved plans. He personally measured the flood hazard area setback and building height, and observed Bocchi's contractor make those measurements. He and the contractor each concluded the residence complied with the approved plans. He reported these findings to the committee.
F. Declaration of David Knell
Knell, a licensed surveyer, was retained by the Association to investigate certain aspects of the Bocchi property. He determined that: no part of the residence was within 24 feet of the water line and the correct approach was to use the water line, not the property line; the highest point of the structure, the chimney, was within the 32-foot height limit; Kaplan's view was not obstructed by the chimney; and the wall in the front yard of the common property line with the Kaplan property properly “commences flush with Kaplan's wall at a height of 12 feet and contours down to a height of six feet as it moves closer towards the street.”
G. Declaration of Peter Candrera
Candrera, a licensed architect who had been serving as consultant to the Architectural Committee since 1979, stated that members of the Architectural Committee measured the distance from the water line to the residence three times after the boundaries of the structure were erected and determined there was no encroachment. The Architectural Committee has never considered the spark arrester on top of the chimney to be included in the height measurement.
H. Declaration of Alan M. Jeffrey
Jeffrey, past president of the Association and a member of the board of directors during the years 2004 to the present, was the board's liaison to the Architectural Committee. He was the principal representative of the board working to help Bocchi and Kaplan resolve their differences. After working throughout 2005 with them to resolve their then-existing contentions, he drafted an agreement between Bocchi and the Association memorializing what both Bocchi and Kaplan told him was acceptable. The agreement was designed in large part to address concerns raised by Kaplan. Bocchi and the Association signed the agreement and Kaplan signed his approval. Until the Association was named as a defendant in the suit between Kaplan and Bocchi, he did not know Kaplan contended Bocchi built in the flood hazard area. After the suit against the Association was filed, Kaplan's attorney sent him a letter with a survey enclosed purporting to show there was an encroachment. Bocchi responded. Based on all the information, the board concluded there was no violation. The board concluded it would not be in the Association's best interest to sue Bocchi, because the board did not detect a violation and Kaplan was already suing Bocchi. “The policy of the board during the many years I have been a member is generally we do not take formal action, especially formal legal action, when a dispute appears to us to be limited to two owners only, i.e., a neighbor versus neighbor dispute and the evidence of a violation is not clear. Mr. Kaplan and Mr. Bocchi have been fighting now for years, the Board and Committee members have been caught in the middle of it and have spent countless hours trying to broker peace between the two, and we feel it is in the Association's best interest to refrain from taking sides or doing the bidding of one or the other (which both men have tried to get us to do) in the absence of a clear, identifiable violation.”
I. Deposition of Donald Kaplan
When Kaplan remodeled his home in 2004-2006, he removed, with the Architectural Committee's permission, an existing hedge that extended from the rear of his house on the property line down toward the lake. The hedge was six feet tall graduating down to three and a half feet. It did not impede his view. Kaplan's deck is about two and a half to three feet above the ground level of Bocchi's lot.
On July 16, 2005, Kaplan complained to the Architectural Committee that, after Kaplan removed the rear hedge that went down the slope toward the lake, Bocchi planted trees going down the slope, without obtaining permission from the Architectural Committee. The Architectural Committee told Bocchi he did not follow the rules, would be fined, and would have to remove the trees. Kaplan did not want Bocchi to be fined and was willing to work with the Architectural Committee on a solution.
Throughout 2005, the Architectural Committee tried to broker a deal between Kaplan and Bocchi on the landscaping and parking issues [Bocchi was encroaching on Kaplan's access to Kaplan's driveway]. On December 8, 2005, Kaplan's attorney wrote to the Association's attorney demanding that the Association mediate an agreement to resolve the disputes. In January 2006, a member of the Architectural Committee showed Kaplan a copy of the “January 2006 Agreement” between Bocchi and the Association, and Kaplan told him the agreement was alright with him. Bocchi and the Association agreed Bocchi's trees would not be located closer than 20 feet from the water and the wall in the front yard would slope from a height equal to the height of Kaplan's wall at that point down to six feet and finish 12 feet from the curb (see exh. 12). Kaplan signed his approval of this agreement, without realizing it would violate the CC & Rs.
Kaplan had no evidence that Bocchi violated the provision in the January 2006 Agreement concerning the height of Bocchi's wall. Kaplan did not realize Bocchi's wall would block his vision until his survey in October 2008 revealed the wall violated the CC & Rs.
On March 29, 2006, Kaplan's attorney wrote to the Association advising, inter alia, that Bocchi planted trees on the slope, which obstructed Kaplan's view, in violation of Architectural rule 5.8. Kaplan's attorney demanded the Association order Bocchi within seven days to remove the trees. Kaplan explained at his deposition that Bocchi did not plant trees within 20 feet of the water. Kaplan's complaint was that the trees planted on the slope were getting too tall. In response to this letter, the Association set a height limit for the trees.
On April 26, 2007, Kaplan wrote to the Architectural Committee that the trees the committee allowed Bocchi to plant on the slope now exceeded the limit of six feet. On May 2, 2007, the Architectural Committee replied to Kaplan that the issue of the trees was being addressed. Kaplan was satisfied with this response. Kaplan was aware that, on May 17, 2007, the Architectural Committee wrote to Bocchi clarifying the intent of the January 2006 Agreement allowing Bocchi to place a row of trees on the property line between Bocchi's and Kaplan's homes. Kaplan believed the height of the trees created a nuisance, but he did not know of any other member of the Association who objected.
Kaplan was not aware if he could see Bocchi's chimney from his house. The chimney did not impede his ability to see the lake.
Kaplan sued Bocchi on May 7, 2008. His suit was in response to a small claims action Bocchi had initiated against him. After filing the complaint against Bocchi, Kaplan sought an injunction against Bocchi's construction, but the injunction was denied. Before filing the second amended complaint, Kaplan never wrote to the Association to tell them Bocchi was encroaching on the flood hazard area or violating the height limitation. Kaplan had no knowledge the Association had received any evidence from anyone about the purported flood hazard area violation prior to the June 17, 2009 letter to the Association from Kaplan's attorney submitting the Peak survey. Before filing the second amended complaint, Kaplan made an oral complaint to two members of the Architectural Committee that Bocchi's residence was in excess of 32 feet tall. The Committee previously made its own measurement and found the residence was 32 feet in height. As to the cause of action for creating a nuisance during construction of the residence, Kaplan explained he meant Bocchi was not maintaining his lot in a decent-looking condition while it was undergoing renovation. Kaplan testified he did not recall if he ever sent a written notice to anyone about the problem. The cause of action for installing offensive trees and shrubs and failing to trim them was in regard to the issue of the trees and shrubs toward the back of the property between the two lots. Kaplan testified there were no issues in the second amended complaint that he had not covered in his deposition testimony.
Kaplan's Opposition to the Motion for Summary Judgment
Kaplan contended the Association owed him a duty to enforce the provisions of the governing documents, Bocchi breached the provisions, and Kaplan was entitled to injunctive and declaratory relief. Kaplan contended whether or not the Association acted in good faith was a triable issue of fact, because there was evidence the Association did not act impartially. The exculpatory clauses in CC & R sections 5.15 and 6.6 were not enforceable. Kaplan did not contend the Association refused to enforce side and rear yard setback requirements or limitations on the proximity of a second story deck to the water line.
The following documents, deposition excerpts, and declarations were among the materials attached to the opposition.
A. Letters and Minutes
The September 3, 2008 minutes of the Architectural Committee stated Kaplan reported Bocchi built in the flood plain, but it is a neighbor to neighbor dispute.
In a November 13, 2008 letter from the Architectural Committee to Bocchi, the committee stated it had been notified Bocchi's home exceeded the 32-foot height limit and stated Bocchi must comply with the limit.
In a letter dated November 17, 2008, Bocchi advised the Association there was litigation between Bocchi and Kaplan and requested the Association to produce all documents relating to Bocchi's construction project.
B. Declaration and Deposition Testimony of Gareth Crites
Crites was vice-president of Peak Surveys, Inc. In September 2008, he surveyed Bocchi's property and concluded the residence was 33.2 feet above the finished floor slab. Based on a measurement from the high water line to the house, the construction protruded into the flood hazard area by 5.5 feet.
C. Declaration and Deposition Testimony of Kaplan
Kaplan did not include an issue about the flood hazard encroachment in the original complaint against Bocchi, because he had not discovered the problem. Before he sued the Association, he told two members of the Architectural Committee that he thought the structure would be taller than 32 feet.
In August 2008, he verbally informed Al Baker of the Architectural Committee of his newly discovered claim that the house encroached into the flood hazard area, as reflected in the committee's minutes of September 3, 2008.
The Association's Reply in Support of Summary Judgment Motion
The Association argued that Kaplan did not give the Association his expert's survey of the construction until Kaplan sued the Association. Without Kaplan's survey, there was no reason to believe Bocchi violated the CC & Rs.
A. Declaration of Steve Opdahl
Opdahl was a licensed surveyor hired by a construction firm employed by Bocchi to verify for the County of Los Angeles the height and setbacks for Bocchi's residence. Based on review of the plans, site visit in July 2008, and calculations, Opdahl determined and certified that: (1) the rear of the home was, at its closest point, at least 24 feet from the water line; and (2) the height of the structure to the highest point did not exceed 32 feet.9 He verified the setback again in 2009. He delivered certificates of compliance to the contractor. It is the practice in the community of Westlake Island, as stated in section 5.6 of the CC & Rs, to use the water line to measure flood hazard setbacks.
B. Deposition of Ron Dockery
Dockery, employed as a building inspector for the Department of Building and Safety of the County of Los Angeles, testified his inspection verified that the stakes set for the foundation complied with the setback shown on the county-approved site plan. He approved the foundation on September 11, 2007. Relying on Opdahl's survey, he determined that the height of the building complied with the approved plans and the city codes. The County of Los Angeles considered that Bocchi's structure was in accordance with both the setback and height requirements of the approved plans and municipal ordinances. He inspected and approved the wall on August 21, 2008, as in accordance with the approved plan. The final approval of the wall will not occur until the whole project has been completed and subjected to a final inspection.
Decision of the Trial Court
On November 13, 2009, the trial court granted the motion for summary judgment. Kaplan argued the building exceeded 32 feet in height and stated there was nothing to add that was not in his brief. The court stated: “I'm satisfied the homeowners[ ] association did what they should do. I don't know that a spark arrester even counts in the height.” “[T]he homeowners [ ] association here acted in good faith. They justifiably relied on the surveys.” The trial court found there was no triable issue of material fact and the Association was entitled to summary judgment as to the complaint, because: “1. The Association breached no duty owed to plaintiffs; and [¶] 2. The decisions of the Association's Architectural Committee and Board of Directors, in this case, were within their purview under the Governing Documents and California law[,] and the rule of judicial deference should apply in these circumstances as reflected in precedents such as Lamden v. La Jolla Shores Clubdominium Assn. (1999) 21 Cal.4th 249 [ (Lamden ) ]; Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361; Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863; Dolan King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965; Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642; and Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858.” On December 11, 2009, judgment was entered in favor of the Association.
DISCUSSION
Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings ․ but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action․’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) “[W]e ‘ “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ’ [Citations.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
The interpretation of covenants, conditions, and restrictions “ ‘is a question of law we address de novo. [Citations.]’ (Ibid.)” (Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111, 1121-1122.)
Forfeited Contentions
Any contention that the Association breached its duty to enforce rear and side yard setback restrictions and the limitation on proximity of the second story deck to the water line was forfeited by Kaplan's failure to raise the contention in the second amended complaint or in opposition to the summary judgment motion. [T]he pleadings ․ ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) Moreover, Kaplan acknowledged he made no complaint to the Association or Architectural Committee that Bocchi violated any such restrictions.
No Triable Issue Exists Concerning the Associations Determinations Regarding Kaplans Complaints
Kaplan contends a triable issue of material fact exists concerning whether the Association breached its duty to Kaplan by failing to enforce the governing documents. We disagree.
A. Standard of Review of a Community Association's Exercise of Discretion
“Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development's common areas, courts should defer to the board's authority and presumed expertise.” (Lamden, supra, 21 Cal.4th at p. 265.)
The rule announced in Lamden of judicial deference to an association's decisionmaking is not limited to an association's decisions concerning maintenance issues. (E.g., Haley v. Casa Del Rey Homeowners Assn., supra, 153 Cal.App.4th at p. 875 [Lamden 's rule of judicial deference applies to an association's exercise of “discretion to select among means for remedying violations of the CC & R's without resorting to expensive and time-consuming litigation”]; Harvey v. The Landing Homeowners Assn. (2008) 162 Cal.App.4th 809, 820-821 [Lamden 's rule of judicial deference applies to enforcement of governing documents where the governing documents give the board discretion]; compare Ekstrom v. Marquesa at Monarch Beach Homeowners Assn., supra, 168 Cal.App.4th at p. 1123 [the business judgment does not insulate board decisions that are unauthorized under the CC & Rs].) Before Lamden, the Supreme Court explained that “ ‘[g]enerally, courts will uphold decisions made by the governing board of an owners association so 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 [v. Lakeside Village Condominium Assn.], supra, 8 Cal.4th at p. 374.)” (Lamden, supra, 21 Cal.4th at p. 265.)
Lamden's rule of judicial deference applies to this dispute. The Architectural Committee had discretion to grant deviations from the Architectural Rules. (Architectural Rules, § 2.19.) The Architectural Committee had discretion to make determinations concerning the reasonableness of blockages of views. (CC & Rs, § 6.6.) The Association had no liability arising out its approval of plans, whether or not defective. (CC & Rs, § 5.15.) The Association had no liability in disputes between neighbors over trimming trees to protect views. (CC & Rs, § 6.6.) The Association had no duty to protect views. (Architectural Rules, § 2.10.) The Association had no obligation to become involved in neighbor-to-neighbor disputes over violations of the governing documents. (CC & Rs, § 7.11.) The Association had discretion to determine enforcement measures. (CC & Rs, § 11.4.) Members of the Association had a separate right to enforce the governing documents and enjoin violations of the governing documents. (CC & Rs, §§ 11.2, 11.6; Civ.Code, § 1354. subd. (a).) 10 These grants of discretion to the Association, limitations on the Association's duties and liability, and grants of enforcement power to members gave the Association broad latitude in managing Westlake Island while empowering members with separate authority to enforce the governing documents. This governance scheme requires review under the rule of judicial deference.
B. The Associations Determination That Bocchis Residence Did Not Encroach on the Flood Hazard Area or Exceed the 32-Foot Height Limitation
As an initial matter, there is no triable issue whether the Association breached its duty to address Kaplans allegation that Bocchis residence encroached on the flood hazard area, because Kaplan did not submit a written complaint or evidence of encroachment to the Architectural Committee, as required by Architectural Rules section 7.2, until after Kaplan sued the Association. Moreover, it is undisputed no one else notified the Association. The Association had no reason to know of any purported encroachment, and thus, had no duty to act.
In any event, there is no triable issue that the Association breached its duty when it determined that Bocchis residence did not encroach on the flood hazard area and did not exceed the 32-foot height limitation.
There is no dispute that the Association investigated the complaints and based its decision on surveys and governmental approvals that showed no encroachment on the flood hazard area and no violation of the building height limitation. No survey showed an encroachment, as measured by the water line, or a violation of the height limitation, as measured by the height of the chimney. Kaplan's survey measured the encroachment by the high water line or property line and the residence height by the top of the spark arrester. The CC & Rs and Architectural Rules stated that the water line should be used (CC & Rs, §§ 1.19, 5.5; Architectural Rules, §§ 1.4, 5.21), and it was undisputed that the Association, City of Westlake Village, and County of Los Angeles all used the water line. The Association and government entities had never included a spark arrester atop a chimney in measuring height. Thus, the Association's conclusion that there was no violation was based on a reasonable, good faith investigation and reliance on the city's and county's technical expertise. Taking the position Bocchi violated the CC & Rs would not have been in the best interests of the Association's members or in good faith, as it would entail costly litigation with Bocchi. Under the deferential standard of review of a community association's exercise of its decisionmaking authority, there is no triable issue whether the Association breached its duty when it concluded no violation had occurred.
C. The Association's Determinations Concerning Bocchi's Front Wall and Rear Trees
Kaplan contends the Association breached its duty by failing to enforce the governing documents concerning restrictions on walls (Architectural Rule, § 5.8) and the height of trees (CC & Rs, § 6.6). We disagree with the contention.
There is no triable issue whether the Association breached its duty to enforce the restriction on the front wall's encroachment into a 45-degree cone of vision, because Kaplan did not complain about or submit evidence of the encroachment to the Architectural Committee, as required by Architectural Rules section 7.2, until after Kaplan sued the Association. Thus, the Association had no duty to act.
In any event, the Architectural Committee had discretion to grant deviations from the Architectural Rules. (Architectural Rules, § 2.19.) It is undisputed that Kaplan approved the agreement between Bocchi and the Association permitting Bocchi to deviate from the Architectural Rules by constructing a wall of specified dimensions in the front and installing privacy trees on the slope in the rear to within 20 feet of the lake. It is undisputed that the wall was constructed and the trees were planted in conformity with the agreement. The Architectural Committee then exercised its discretion pursuant to CC & Rs section 6.6 to determine whether Kaplan's view was unreasonably obstructed by the growth of Bocchi's privacy trees. The Architectural Committee determined that Bocchi should limit the height of the trees next to Kaplan's patio to six feet as measured from Kaplan's patio and of the trees down the slope from Kaplan's patio 11 to six feet as measured from the ground. Kaplan's complaint that all the trees should be limited to a height of six feet from the ground was thus a quarrel over no more than three feet, which was well within the Architectural Committee's discretion. The Architectural Committee having decided that the view blockage of the trees was not unreasonable, “no further action shall be taken by the Architectural Committee.” (CC & Rs, § 6.6.) Moreover, a dispute between members over the Architectural Committee's determination is limited to the members; the Association shall not be involved. (CC & Rs, § 6.6.)
Under the deferential standard of review of a community association's exercise of its decisionmaking authority, there is no triable issue whether the Association breached its duty in granting these deviations from the Architectural Rules, exercising its discretion to determine the reasonable height of the trees, and refusing to accede to Kaplan's demands to rescind approval of the deviations.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Westlake Island Property Owners Association.
KRIEGLER, J.
We concur:
TURNER, P. J.
ARMSTRONG, J.
FOOTNOTES
FN1. Civil Code section 1351 is part of the Davis-Stirling Common Interest Development Act. (Civ.Code, § 1350.) Civil Code section 1351, subdivision (a) provides: “ ‘Association’ means a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development.” Civil Code section 1351, subdivision (c) provides: “ ‘Common interest development’ means any of the following: [¶] (1) A community apartment project. [¶] (2) A condominium project. [¶] (3) A planned development. [¶] (4) A stock cooperative.”. FN1. Civil Code section 1351 is part of the Davis-Stirling Common Interest Development Act. (Civ.Code, § 1350.) Civil Code section 1351, subdivision (a) provides: “ ‘Association’ means a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development.” Civil Code section 1351, subdivision (c) provides: “ ‘Common interest development’ means any of the following: [¶] (1) A community apartment project. [¶] (2) A condominium project. [¶] (3) A planned development. [¶] (4) A stock cooperative.”
FN2. Section 1.26: “ ‘Lot’ shall mean any real property designated for residential use on the Island.”. FN2. Section 1.26: “ ‘Lot’ shall mean any real property designated for residential use on the Island.”
FN3. Section 1.21: “ ‘Governing Documents' shall mean these CC & Rs, ․ [and] Architectural Rules․”. FN3. Section 1.21: “ ‘Governing Documents' shall mean these CC & Rs, ․ [and] Architectural Rules․”
FN4. Section 5.1: “No improvement, excavation or other work which alters the exterior appearance of any Lot or the Improvements located thereon shall be done except pursuant to the Island's Architectural Rules.”. FN4. Section 5.1: “No improvement, excavation or other work which alters the exterior appearance of any Lot or the Improvements located thereon shall be done except pursuant to the Island's Architectural Rules.”
FN5. On January 9 and 10, 2006, Bocchi and the Association executed an agreement stating Bocchi planted trees in his rear yard along the property line with Kaplan in order to maintain the privacy that he realized before the removal of trees on the same property line. Bocchi wanted to replace the front yard wall on the same property line that he realized before the wall's removal. Bocchi agreed no trees, shrubs, or fencing would be installed along the property line within 20 feet of the lake water's edge, and the Association granted approval to plant trees within 20 feet of the water's edge. The Association agreed Bocchi may build a wall in the front yard on Bocchi's side of the property line, “extending from the top of the existing wall of the Kaplan home and terminating at a height of six feet and a distance of 12 feet from the edge of the curb and the street. (Same distance as prior wall).” In consideration for this agreement, Bocchi agreed not to park his Ford Expedition in the space in front of Bocchi's home and not to park any cars in the space in front of Bocchi's home beyond the cut in the curb when the slope of the driveway begins toward Kaplan's home. On January 17, 2006, Kaplan signed his name to the agreement, stating “I approve agreement.”. FN5. On January 9 and 10, 2006, Bocchi and the Association executed an agreement stating Bocchi planted trees in his rear yard along the property line with Kaplan in order to maintain the privacy that he realized before the removal of trees on the same property line. Bocchi wanted to replace the front yard wall on the same property line that he realized before the wall's removal. Bocchi agreed no trees, shrubs, or fencing would be installed along the property line within 20 feet of the lake water's edge, and the Association granted approval to plant trees within 20 feet of the water's edge. The Association agreed Bocchi may build a wall in the front yard on Bocchi's side of the property line, “extending from the top of the existing wall of the Kaplan home and terminating at a height of six feet and a distance of 12 feet from the edge of the curb and the street. (Same distance as prior wall).” In consideration for this agreement, Bocchi agreed not to park his Ford Expedition in the space in front of Bocchi's home and not to park any cars in the space in front of Bocchi's home beyond the cut in the curb when the slope of the driveway begins toward Kaplan's home. On January 17, 2006, Kaplan signed his name to the agreement, stating “I approve agreement.”
FN6. On June 29, 2007, the Architectural Committee wrote a letter to Bocchi rescinding its May 17, 2007 agreement with Bocchi and telling Bocchi the height of the privacy “fence” he was allowed to plant per the January 2006 agreement must be “kept pruned to six feet above the height of the Kaplans' patio deck. Once you have passed the Kaplans' deck the height of the trees must taper down and be kept at a height of six feet from the ground.”. FN6. On June 29, 2007, the Architectural Committee wrote a letter to Bocchi rescinding its May 17, 2007 agreement with Bocchi and telling Bocchi the height of the privacy “fence” he was allowed to plant per the January 2006 agreement must be “kept pruned to six feet above the height of the Kaplans' patio deck. Once you have passed the Kaplans' deck the height of the trees must taper down and be kept at a height of six feet from the ground.”
FN7. The CC & R's require measurement from the water line, not the property line, because the lots were established before the lake was filled with water. After the lake was filled, many of the property lines were in the middle of the lake.. FN7. The CC & R's require measurement from the water line, not the property line, because the lots were established before the lake was filled with water. After the lake was filled, many of the property lines were in the middle of the lake.
FN8. On July 27, 2009, the board wrote to Bocchi that, after considering the materials submitted by Kaplan and Bocchi, statements at the hearing, and the directors' firsthand observations of the work at the residence, “the board is unable to detect at this time any violation or deviation. We do remind you, however, of the continuing obligation to keep the hedges at a height not greater than six feet from the level of the Kaplans' deck, as you and your neighbors agreed to in writing some years ago.” The board disagreed with Kaplan's interpretation of the governing documents and was aware Kaplan's efforts to enjoin the project in litigation between the parties was not successful. “In such circumstances, in the absence of clear evidence of a violation, the Association does not believe it should take sides in what it perceives to be a dispute between two neighbors who have battled one another for a long time. The board believes the court should decide the issues the parties have placed before it without the Association intruding on the process in such a way as to favor one side over the other. [¶] Accordingly, the board does not intend to take any formal action at this time as it finds no violation.”. FN8. On July 27, 2009, the board wrote to Bocchi that, after considering the materials submitted by Kaplan and Bocchi, statements at the hearing, and the directors' firsthand observations of the work at the residence, “the board is unable to detect at this time any violation or deviation. We do remind you, however, of the continuing obligation to keep the hedges at a height not greater than six feet from the level of the Kaplans' deck, as you and your neighbors agreed to in writing some years ago.” The board disagreed with Kaplan's interpretation of the governing documents and was aware Kaplan's efforts to enjoin the project in litigation between the parties was not successful. “In such circumstances, in the absence of clear evidence of a violation, the Association does not believe it should take sides in what it perceives to be a dispute between two neighbors who have battled one another for a long time. The board believes the court should decide the issues the parties have placed before it without the Association intruding on the process in such a way as to favor one side over the other. [¶] Accordingly, the board does not intend to take any formal action at this time as it finds no violation.”
FN9. Opdahl's August 1, 2008 certificates were attached as exhibits. The certificates verified that the flood hazard area setback of the foundation and the height of the building structure were in accordance with the approved plans and in compliance with the requirements of Los Angeles County.. FN9. Opdahl's August 1, 2008 certificates were attached as exhibits. The certificates verified that the flood hazard area setback of the foundation and the height of the building structure were in accordance with the approved plans and in compliance with the requirements of Los Angeles County.
FN10. Civil Code section 1354, subdivision (a) provides: “The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.”. FN10. Civil Code section 1354, subdivision (a) provides: “The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.”
FN11. Kaplan's patio was two and a half to three feet off the ground.. FN11. Kaplan's patio was two and a half to three feet off the ground.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: B222467
Decided: December 22, 2010
Court: Court of Appeal, Second District, California.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)