Palos Verdes Home Owners Association v. Rodman

182 Cal.App.3d 324 (1986)

325*325 COUNSEL

Stuart W. Willis for Defendants and Appellants.

Sidney F. Croft for Plaintiff and Respondent.

Summary by Mary M. Howell, Esq.:

Installation of solar system after denial of application by association was a violation of restrictive covenants.  Association’s guidelines for solar installations held to satisfy the requirements of Civil Code §714.

**End Summary**

OPINION

HASTINGS, J.

Defendant/appellant Stacey Rodman (Rodman) resides on the Palos Verdes Peninsula in an area governed by conditions, covenants and restrictions (CC&Rs) recorded by plaintiff/respondent Palos Verdes 326*326 Homes Association (the Association) on July 15, 1923. The CC&Rs include a provision which requires prior approval by the Association of plans and specifications for any works of improvement to be done on any of the “covered” properties.^[1]

Defendant/appellant Servamatic Solar Systems (Servamatic) contracted with Rodman to install a passive solar water hearing unit on the roof of the Rodman home. On March 20, 1983, Servamatic sought approval from the Association for this installation; approval was denied. On July 26, 1983, when the Association discovered that Servamatic had installed the system, it sent a letter to Rodman notifying him that his property was in a condition of noncompliance with the CC&Rs and enclosed a copy of its solar unit guidelines.^[2] On August 15, 1983, the Association received a letter from Servamatic informing it that Servamatic had agreed to indemnify Rodman against all legal expenses incurred in defending his rights to solarize his home. Servamatic went on to cite portions of Government Code section 65850.5 and Civil Code section 714,^[3] claiming these statutes precluded the Association from interfering with installation of solar energy systems.

327*327 On October 5, 1983, the Association filed its complaint for injunctive and declaratory relief against Rodman and Servamatic. Rodman answered; Servamatic answered and cross-complained. Its cross-complaint stated causes of action for interference with business and for injunctive and declaratory relief. All parties sought a judicial determination of their respective rights and obligations under section 714, quoted, ante, in footnote 3. On November 1, 1984, all parties stipulated to a bifurcation of the issues of declaratory relief of the complaint and cross-complaint from the issues of injunction and damages.

The issues of declaratory relief were tried before the court on January 23, 1985. Judgment for the Association was filed on February 14, 1985; it provided “… 1. That defendants are enjoined from maintaining the solar units on the property … [¶] 2. That defendants are ordered to comply with requirements of the Art Jury of the PalosVerdes Homes Association within ninety (90) days of entry of judgment herein. [¶] 3. If defendants do not comply with the requirements of the Art Jury of the PalosVerdes Homes Association within ninety (90) days of entry of judgment herein they are ordered to remove the solar units … [¶] 4. The restrictions of the Palos VerdesHomes Association on solar energy systems installed by defendants are reasonable and met the standards set forth in California Civil Code, Section 714. [¶] 5. Plaintiff,Palos Verdes Homes Association, have and recover its costs in the amount of $92.00 from defendants.”

Rodman and Servamatic (both as appellants) have joined in the appeal from this judgment. They urge us to find that as a matter of law the Association’s solar unit guidelines are in violation of the spirit and intent of section 714. Specifically, appellants argue that these guidelines “effectively prohibit or restrict” installation of solar energy units in that they significantly increase the cost of a system, decrease a system’s efficiency and do not allow for “an alternative system of comparable cost and efficiency,” all in contravention of the policy stated in section 714, “… to promote and encourage the use of solar energy systems and to remove obstacles….” In support, appellants cite the testimony regarding the three types of solar 328*328 systems allowed by the California State Energy Commission: active (or flat plate); passive (Integral Collector System (ICS)); and thermosyphon (a combination of both). Appellants assert that the guidelines allow installation of active systems, but effectively preclude installation of the ICS, the only type appellants install, because it sits 18 inches atop the roof, is painted black, and looks like an up-side-down bathtub; and that the guidelines would require the ICS to be set into the roof (guideline 4), adding between $1,400-$1,800 to the cost of installation.

The Association counters that the pertinent and controlling language of section 714 is that which finds “reasonable restrictions” to include those “… which allow for an alternative system of comparable cost and efficiency.” (1a) The Association argues that the solar unit guidelines do not prohibit all solar units but are formulated to promote the installation of solar units which are comparable in costs and aesthetically acceptable. We concur.

(2) The right to enforce covenants that require approval of construction has long been recognized in California. (Hannula v. Hacienda Homes (1949) 34 Cal.2d 442, 444-445 [211 P.2d 302, 19 A.L.R.2d 1268].) (3) The issue here is whether the Association’s Guidelines are a “reasonable restriction” on the installation of solar units, as required by section 714. This is a question of fact to be determined by the trier of fact. Its conclusion will not be disturbed unless unsupported by substantial evidence. (Bowers v. Bernard (1984) 150 Cal. App.3d 870, 873-874 [197 Cal. Rptr. 925].)

(1b) The evidence presented at the court trial included testimony by William Nelson Rowley, Ph.D., in mechanical engineering. Dr. Rowley, an engineer for 30 years and member of numerous professional organizations, has been designing and selling solar systems since 1974, designing and/or installing more than 250 systems. In October 1983, he was hired as a consultant to the Association to study and determine whether the Association’s solar guidelines complied with section 714. His study included a comparison of the costs of various solar systems, including appellant’s; their positive and/or negative aspects; capacity; weight; insulation; tank temperature design; efficiency; output and warranties. Based on his study comparing 26 systems installed on the Palos Verdes Peninsula with appellant’s ICS, he concluded the solar units permitted by the Association guidelines were comparable to the ICS in performance and costs.

Given this evidence and the fact that appellant’s own witness agreed that the various solar systems discussed by Dr. Rowley were comparable, we cannot say as a matter of law that the trial court erred. The evidence before 329*329 the court, partially summarized above, clearly supports the judgment rendered.

The judgment is affirmed.

Ashby, Acting P.J., and Eagleson, J., concurred.

[1] When an owner seeks to install a solar unit, he or she must comply with the requirements of the solar unit guidelines formulated by the Association’s Art Jury.

[2] These guidelines provide as follows: “1. Solar Units not on the roof should be maintained a minimum of 5′ from property line and concealed from the neighboring view, and a fence or wall of sufficient height to accomplish same may be appropriate. [¶] 2. Solar Units on a roof should be within the wall line of the structure. However, the Art Jury may require more roof area between solar unit and roof edge if the roof overhang is minimal. [¶] 3. All aluminum trim should be bronze anodized or otherwise color treated. [¶] 4. Solar Units should be in or below the plane of roofing material. [¶] 5. Solar Unit should be constructed of rigid materials. (Units may not be of flexible materials). [¶] 6. All plumbing lines should be concealed and the method of installation shown and detailed. [¶] 7. Panel material should be dark in color. [¶] 8. Sample of the proposed solar unit should be submitted with application. [¶] 9. Professionally drawn construction details which apply to specific installations should be provided. They should be drawn to scale and should clearly show all elevations, assembly, the attachment to the roof structure and proposed location on the lot or building. [¶] 10. Calculations should be provided verifying the number and/or area of panels required. [¶] 11. Photographs should be submitted showing the location of the proposed solar units and their visibility from neighboring structures, street or streets. [¶] 12. A cover plate or the glazing should be either transparent or white to reduce the reflectance of light. Cover material, if flammable, should be self extinguishing. [¶] The Art Jury may ask for alternative combinations in smaller groupings when large areas of grouped solar panels are found not to be aesthetically satisfactory.”

[3] Government Code section 65850.5, in pertinent part, provides: “The legislative body of any city or county shall not enact an ordinance which has the effect of prohibiting or of unreasonably restricting the use of solar energy systems other than for the preservation or protection of the public health or safety. This prohibition shall be applicable to charter cities … [¶] This section shall not apply to ordinances which impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions which do not significantly increase the cost of the system or significantly decrease its efficiency, or which allow for an alternative system of comparable cost and efficiency….”

Civil Code section 714, in pertinent part, provides: “Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property which effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable. [¶] This section shall not apply to provisions which impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions which do not significantly increase the cost of the system or significantly decrease its efficiency, or which allow for an alternative system of comparable cost and efficiency….”

All subsequent references are to the Civil Code.

Keywords: Solar

Pacifica Homeowners Association v. Wesley Palms

178 Cal.App.3d 1147 (1986)

1150*1150 COUNSEL

A. Lee Estep and Estep, Williams & Gordon for Plaintiff and Appellant.

Kadison, Pfaelzer, Woodard, Quinn & Rossi and Laurence J. Hutt for Defendants and Respondents.

Summary by Mary M. Howell, Esq.:

Association unsuccessfully attempts to enforce a view restriction imposed by a conditional use permit on property adjacent to the association.   Court confirms as well there is no common law right to an unobstructed view.

**End Summary**

OPINION

STANIFORTH, Acting P.J.

Pacifica Homeowners’ Association (Association) appeals the sustaining of a demurrer and the dismissal of its action seeking to enjoin the Wesley Palms Retirement Community and Pacific Homes, Inc. (collectively Wesley Palms) from allowing trees on its property to grow higher than its five-story building.

FACTS

The Association’s members own single-family residences in a development, Pacifica Homes (Pacifica), located uphill from Wesley Palms on Mount Soledad in the City of San Diego (City). These residences have views of the ocean, Mission Bay and the city. Covenants contained in the homeowners’ deeds protect these views from future obstruction.

Wesley Palms was granted a conditional use permit in 1958 to operate a retirement hotel on its 40-acre tract of land. In the findings of fact supporting issuance of the permit, the City, inter alia, stated: “That such use under the circumstances of the particular case will not be detrimental to health, safety or general welfare of persons residing or working in the vicinity, or injurious to property or improvements (existing or future) in the vicinity because a capable architect has designed attractive buildings and cottages which will be surrounded by a beautiful landscaped area. There will be no medical facilities on the property, which will not be a rest home, hospital, or sanitarium. The buildings will be set back from the exterior boundaries of the 40-acre tract and will constitute a harmonious, well-designed unit, 1151*1151 which will be far more attractive than even a high-class subdivision, or an uncoordinated development of individual houses. The installation of sewer and water lines will directly increase property values and health conditions; improve fire protection facilities; and make the immediate development of surrounding areas easier and less expensive.” The City also attached conditions to the issuance of the permit, including: “That a landscaping plan be submitted and approved by the Planning Commission along with the final subdivision map with the entire landscaping plan to be completed within one year after the first building is occupied.

“…. …. …. …. …. …. .

“That construction shall be substantially as shown on the attached plan, except that the proposed 7-story building shall be reduced in height by two floors, with a proportional reduction in total height.”

By 1984, eucalyptus and pine trees on the Wesley Palms property exceeded the height of its five-story building and were obstructing views in Pacifica. Attempts to resolve the problem broke down and the Association filed suit in February 1984, alleging Wesley Palms had interfered with an easement to light, air and an unobstructed view created by the conditional use permit in favor of the Association. The Association sought damages and injunctive relief. In July 1984, the Association amended the complaint. It sought injunctive relief, alleging the Wesley Palms property was burdened with a servitude in favor of the Association to not permit any obstruction exceeding the height of Wesley Palms’ five-story building, had a duty under the conditional use permit to maintain its land so as not to be injurious to the Association’s property and was creating a nuisance by allowing its trees to obstruct the Association’s light and view.

Wesley Palms demurred. On September 7, 1984, the court sustained the demurrer without leave to amend. A judgment of dismissal was entered on October 3, 1984. The Association appeals, contending the conditional use permit was intended to give the Association’s members a right to an unobstructed view and Wesley Palms has violated that condition.

DISCUSSION

(1) “The function of a demurrer is to test the sufficiency of a complaint as a matter of law.” (Banerian v. O’Malley (1974) 42 Cal. App.3d 604, 611 [116 Cal. Rptr. 919].) (2) A demurrer admits the truth of all properly pleaded material allegations without regard to the difficulty of proof. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [86 Cal. Rptr. 1152*1152 88, 468 P.2d 216].) (3) “`[T]he allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.'” (King v. Central Bank (1977) 18 Cal.3d 840, 843 [135 Cal. Rptr. 771, 558 P.2d 857].)

(4) A general demurrer may be sustained without leave to amend where it is probable from the nature of the defects in the previous unsuccessful attempts the plaintiff cannot state a cause of action. On appeal, the question is whether the trial court abused its discretion in denying leave to amend. (Fugitt v. City of Placentia (1977) 70 Cal. App.3d 868, 871 [139 Cal. Rptr. 123].) The burden of showing an abuse of discretion rests on the appellant. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [134 Cal. Rptr. 375, 556 P.2d 737].)

(5a) As a general rule, a landowner has no natural right to air, light or an unobstructed view and the law is reluctant to imply such a right. (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal. App.3d 116, 127 [99 Cal. Rptr. 350];Taliaferro v. Sayler (1958) 162 Cal. App.2d 685, 691 [328 P.2d 799]; 3 Miller & Starr, Current Law of Cal. Real Estate (1977) § 18:9, p. 262; 1 Ogden’s Revised Cal. Real Property (1974) § 13.13, p. 548; 3 Witkin, Summary of Cal. Law (8th ed. 1973) Real Property, § 360, p. 2056.) (6) Such a right may be created by private parties through the granting of an easement (see, e.g., Petersen v. Friedman (1958) 162 Cal. App.2d 245, 247 [328 P.2d 264]; Civ. Code, § 801, subd. 18) or through the adoption of conditions, covenants and restrictions (as is the case among the Pacificahomeowners) or by the Legislature (see, e.g., Civ. Code, §§ 801, subd. 18, 801.5; Pub. Resources Code, § 25980 et seq. [creating a right to sunlight for solar collectors]). Local governments may also protect views and provide for light and air through the adoption of height limits. (See, e.g., San Diego Mun. Code, § 101.0452 et seq.; Taliaferro v. Sayler, supra, 162 Cal. App.2d 685, 691.)

II

Wesley Palms asserts that even if the permit contained a condition limiting the height of its trees, this condition could not be enforced by the Association.

(7) The law allows a private individual to enjoin a zoning violation as a nuisance when the individual suffers a “special injury to himself in person or property of a character different in kind from that suffered by the general public” (Venuto v. Owens-Corning Fiberglas Corp., supra, 22 Cal. App.3d 116, 124, italics deleted) or an injury “greater than that suffered by the 1153*1153 public generally” (Cal. Zoning Practice (Cont.Ed.Bar 1969) § 11.6, pp. 479-480) or the individual is a “member of the community for whose particular welfare the ordinance was enacted” (McIvor v. Mercer-Fraser Co. (1946) 76 Cal. App.2d 247, 254 [172 P.2d 758]).

Here the Association alleges a specific conditional use permit contains a limitation on tree height and this limitation was imposed particularly for the benefit of the uphill landowners including the Association. Under these circumstances, the Association has met the standing requirements. It has sufficiently alleged it is a “member of the community for whose particular welfare the ordinance was enacted” (McIvor v.Mercer-Fraser Co., supra, 76 Cal. App.2d 247, 254) and it has suffered an injury different from or greater than that suffered by the general public. (Contrast Taliaferrov. Sayler, supra, 162 Cal. App.2d 685, where the plaintiff sought an injunction for a violation of a general height limit.^[1])

(8) Wesley Palms also contends the Association’s failure to timely appeal the issuance of the conditional use permit or seek court review of the issuance of the permit bars the present action. This contention has no merit. The Association here is not challenging the validity of the permit or its conditions but seeking to enforce a condition which it alleges was attached to the permit. Any action based on a violation of this alleged condition would have been premature if prosecuted within the time frame (10 to 180 days after issuance) suggested by Wesley Palms.

III

The Association asserts the conditional use permit restricted the height of Wesley Palms’ trees to the height of its five-story building.^[2] The Association 1154*1154 concedes the use permit does not expressly limit the height of the trees but argues such a limitation may be implied by reading together the City’s finding Wesley Palms would not be “injurious to property and improvements (existing or future) in the vicinity” with the permit’s conditions that Wesley Palms submit and obtain the planning commission’s approval of a landscaping plan and that Wesley Palms’ seven-story building be reduced by two floors. The Association contends since the City intended Wesley Palms be compatible with the surrounding community and since the City placed a five-story height limit on the building due to community concern, the City also intended to limit the height of the trees to the height of the five-story building.

First, we note the Association’s reliance on the permit’s language Wesley Palmswould not be “injurious to property or improvements (existing or future) in the vicinity” is misplaced. This language is contained in a finding of fact, not a condition. Such a finding — the proposed use “will not adversely affect” the neighborhood — is required for the issuance of every conditional use permit. (San Diego Mun. Code, § 101.0506-C.1.) (9) Moreover, when read in context, the language does not imply a height limitation on trees in favor of the Association.

The planning commission found the Wesley Palms project would not be injurious “because a capable architect has designed attractive buildings and cottages which will be surrounded by a beautiful landscaped area.” Thus, the focus is on the aesthetics of Wesley Palms, not on protecting the Association’s views. The finding continues: “There will be no medical facilities on the property, which will not be a rest home, hospital, or sanitarium. The buildings will be set back from the exterior boundaries of the 40-acre tract and will constitute a harmonious, well-designed unit, which will be far more attractive than even a high-class subdivision, or an uncoordinated development of individual homes. The installation of sewer and water lines will directly increase property values and health conditions; improve fire protection facilities; and make the immediate development of surrounding areas easier and less expensive.” This language is also directed at how Wesley Palms would fit into the community aesthetically and otherwise and how it would provide beneficial improvements. It is not directed at protecting the Association’s views.

(10) The Association also relies on the permit’s requirement Wesley Palms obtain the planning commissioner’s approval of a landscape plan to show the existence of the height limit. Presumably, Wesley Palms complied with this condition by submitting a landscape plan showing the eucalyptus 1155*1155 and pine trees and obtaining the commissioner’s approval of this plan. The Association has made no allegations to the contrary.^[3] Thus, it must be inferred the planning commission approved the mature height of the trees since it attached no trimming or other height restrictions and this would naturally be a place for imposing such a restriction.

(11) Finally, the Association points to the permit’s condition reducing the height ofWesley Palms’ seven-story building to five stories as implying a similar reduction in the height of its trees. We disagree.

San Diego’s Municipal Code in its definition of “Height (Building)” refers only to “a building or structure.” (San Diego Mun. Code, § 101.0101.62.) In pertinent part, it provides: “As used herein, building or structure shall include such structural appurtenances as parapets; safety guardrails other than the type specified below; elevator shaft and stairwell enclosures not meeting the specified criteria below; chimneys, vents, stacks, or ducts exceeding twelve square feet in any one plane; other mechanical equipment and related screening; and similar features. Items not included as structural appurtenances nor in any determination of the height of a building or structure are television and radio reception antennae; flagstaffs; chimneys, vents, stacks, or ducts not exceeding twelve square feet in any one plane; open safety guardrails which are no higher than forty-two inches above a roofline, which contain vertical elements no greater than two inches square in cross section and no closer than four inches apart; and elevator shaft or stairwell enclosures above a building roofline and meeting the following criteria: …” (San Diego Mun. Code, § 101.0101.62.) Similarly, in the section, “Height Limitation Zones — Establishment of,” it states in pertinent part: “In a height limitation zone, no building or structure shall be erected, constructed, altered, moved in or enlarged to a greater height than is permitted in said zone.” (San Diego Mun. Code, § 101.0452, italics added.) The section goes on to detail how the height of a building is to be measured and repeats the definition of building height provided in section 101.0101.62.

These sections negate the Association’s contention that included in a height restriction of a building is a corresponding height restriction of trees. This conclusion is strengthened by the fact the City has in other instances specifically imposed height restrictions on trees.

In Municipal Code section 101.0449 (Airport Instrument Approach Zone) the city had provided,^[4] in pertinent part: “In an Airport Instrument Approach 1156*1156 Zone, no structure, building, tower, smokestack, overhead transmission lines, trees or any objects of natural growth, shall be erected, constructed, altered, moved in, enlarged or allowed to grow in such a manner as to create an airport hazard which obstructs the aerial approach to an airport or is otherwise hazardous to its use for airplane landing or taking off.

“It is hereby declared that any building, structure, tree or object of natural growthwhich extends through or above a height limitation plane, as hereinafter defined, shall constitute an airport hazard and a public nuisance.” (Italics added.) (See also San Diego Mun. Code, § 101.0450, Airplane Flight Training Zones.)

The City has also adopted sections addressing the height of “major landscaping at maturity” in the context of solar access and has required a “shadow plan” to be submitted in certain instances. (See, e.g., San Diego Mun. Code, §§ 101.1208, 103.0101-C.)

The fact the City has expressly addressed the height of trees in other contexts leads to the conclusion that if the City had intended a height limit on the trees in this instance, it would have so stated. Since it did not and since conditions on a conditional use permit must be expressly attached (see San Diego Mun. Code, § 101.0506-C-4), we conclude no such height limit was intended here.

The Association also contends it has a cause of action against the Wesley Palms because Wesley Palms in accepting the benefits of the permit, accepted a corresponding obligation to conduct its operation in good faith, i.e., to not cause unnecessary or unreasonable interference with the rights of surrounding property owners by allowing its trees to obstruct their views. (5b) However, as we noted before, a property owner has no natural right to an unobstructed view. In the absence of any agreement, statute or governmentally imposed conditions on development creating a right to an unobstructed view, it cannot be said Wesley Palms either acted in bad faith or interfered with any right. It did only what the law allows.

The judgment is affirmed.

Butler, J., and Lewis, J., concurred.

[1] In Taliaferro, the court held the adjoining landowner had no standing to seek damages for his neighbor’s violation of a general height limit because the height limit granted him no easement for air and light and since he had no easement, he had no damages. But see Hopkins v. MacCulloch (1939) 35 Cal. App.2d 442 [95 P.2d 950], and Smith v. Collison (1931) 119 Cal. App. 180 [6 P.2d 277], where the courts found anyone residing in a residential zone could enjoin and seek damages from the owner of a nonpermitted commercial use. See also California Zoning Practice, supra, section 11.6, page 480, observing: “To show special injury, the above cases seem to require only proof that plaintiff’s property decreased in value because of the violation. Kappadahl v. Alcan Pac. Co. (1963) 222 CA2d 626 …, although dealing with landowners seeking mandamus to compel revocation of a building permit allegedly issued in violation of the zoning ordinance, suggests that when a private person seeks to enforce a zoning ordinance a showing of special injury may no longer be required or that the court will presume the existence of special injury.”

[2] The trees are uphill of the five-story building. The Association apparently wants the trees’ height limited to the height of an imaginary horizontal line drawn from the top of the five-story building to the hillside, a height less than five stories at the hillside.

[3] In its brief on appeal, the Association states the trees were blocking views by 1966.

[4] This section and section 101.0450 were in effect at the time the conditional use permit was issued but were repealed in December 1985.

Keywords: Governing Documents, Enforcement, Proper Parties, Views

Pacific Hills Homeowners Association v. Prun

73 Cal.Rptr.3d 653 (2008)

655*655 Law Offices of Richard A. Tinnelly, Bruce R. Kermott, Aliso Viejo; Blackmar, Principe & Schmelter, Gerry C. Schmelter, San Diego, and Christina B. VonBehren, for Plaintiff and Appellant.

Law Office of Julie M. McCoy and Julie M. McCoy, Newport Beach, for Defendants and Appellants.

Summary by Mary M. Howell, Esq.:

Judicial action to enforce CC&Rs, and architectural guidelines must be brought within 5 years of the date of the violation, per Code of Civil Procedure §336.  Further, owners’ claim that association had waived its right to enforce because it did not enforce against other owners with similar violations was unsuccessful, because the association was not aware of the violations until defendant owner reported them, and thereafter the association enforced to the degree appropriate given the nature of the other violations.

**End Summary**

654*654 OPINION

RYLAARSDAM, Acting P.J.

Defendants Jon L. Prun and Linda L. Prun appeal from a judgment requiring them to reduce the height of or move a gate and a fence in the front of their residence that violates the height and setback requirements in the covenants, conditions, and restrictions and architectural guidelines adopted by plaintiff Pacific Hills Homeowners Association. They contend the action was not subject to a five-year statute of limitations in Code of Civil Procedure section 336, subdivision (b) (all further statutory references are to this code unless otherwise noted) as the court determined but was barred by the four-year statute of limitations in section 337.

They also assert that, in any event, the action was barred by laches and waiver, and the court erroneously excluded certain evidence of other nonconforming use. We disagree with each contention.

Plaintiff filed a cross-appeal claiming that portion of the judgment requiring it to pay for two-thirds of the cost of relocation of defendants’ gate upon satisfaction of certain conditions was erroneous. It did not address the substance of that issue, however, arguing that because defendants had not satisfied the conditions, its own appeal was moot. We decline plaintiffs request to clarify the effect of that part of the judgment.

Thus, we affirm the judgment.

FACTS

Defendants’ home is located in a planned community subject to a Declaration of Covenants, Conditions and Restrictions (CC & R’s) and governed by plaintiff. The656*656 CC 4 R’s allow plaintiff to adopt reasonable rules and incorporate them into the CC & R’s. The CC & R’s require “the prior written approval of the Architectural Committee” (committee) before construction of any improvement, including a “fence or wall” and also mandate submission of plans to the committee and its approval before construction can begin. Plaintiff also adopted Architectural Guidelines (guidelines) that limit fences to 6 feet in height unless they are within 20 feet of the front property line, in which case the maximum height is 3 feet.

In late 2000 defendants decided to erect a mechanical gate, connected to a fence and pilasters, across their driveway. Jon testified they reviewed the copy of the CC & R’s and guidelines they received when they purchased the home and found no mention of setbacks. Jon also testified that after this action was filed he noticed that the copy of the guidelines they received upon purchase of their home contained only odd-numbered pages; they were missing the page containing the setback requirements. (We note that the guidelines and amended guidelines in the record show the setback requirement was on odd-numbered pages.)

After reviewing those documents, Jon then called the property management company and asked about setbacks. Jon testified that Bill Scales, the Architectural Administrator, told him that neither plaintiff nor the City of Mission Viejo had setback requirements. According to Jon, Scales only said that color was critical and the gate should be of high quality. Scales assured him “there won’t be any problem” or “there shouldn’t be any problem” after Jon told him a professional contractor was installing the gate. Jon also testified Scales said he would fax the forms defendants needed for plaintiffs approval and that permission should take only a couple of weeks. Jon testified he understood the approval was “basically a formality.”

Scales testified he did not remember the call and would not have checked a city setback requirement for a homeowner because he had no copy of those codes.

In the meantime defendants started building the gate. When Scales learned of it he sent a letter informing them construction violated the CC & R’s because prior approval was required; he asked for plans to be submitted. In late November Jon completed the forms he had received from Scales and sent them both to him and to the committee; he did not enclose plans.

In January 2001, plaintiff sent a letter to defendants asking for plans. Defendants re-sent their application with a drawing that did not show the specifics of the gate as required by the CC & R’s. Consequently, plaintiff returned it stamped, “Disapproved as submitted” (capitalization omitted) with another request for defendants to “[s]ubmit clear drawings….” Defendants then did so, showing the gate within three feet of the front property line. In mid-February the committee denied approval of defendants’ proposed fence and gate because it did not comply with the setback requirements. But defendants had already completed the gate.

In late July and August 2001 plaintiff sent letters to defendants, first asking them to comply with the CC & R’s and then inviting them to attend a board meeting in October. Thereafter plaintiff sent a letter giving defendants a November deadline for them to move the gate to comply with the setback requirements and advising it would assess a $100 fine if they did not; plaintiff also invited them to a meeting in December to “discuss the situation.”

At some point plaintiff contacted the City of Mission Viejo advising it of the situation. In May 2002, the city sent written 657*657 notice to defendants that their gate violated its setback requirements. Between November 2002 and January 2003, plaintiff sent four more letters assessing fines and inviting defendants to meetings, which they attended.

In March 2003, plaintiffs lawyer sent a letter to defendants, stating it was plaintiffs “last effort to resolve th[e] matter” and insisting that the gate be moved back. It gave defendants 10 days to advise whether or not they intended to comply; if not plaintiff would take legal action. Jon testified he called the lawyer and explained defendants'”side of the … story.” He also testified plaintiffs counsel told him he thought that sounded “logical” and “plausible”; he wanted to research the matter and said if he did not get back to defendants, they should “consider the matter closed.”

Thirteen months later in April 2004 a different lawyer sent a letter to defendants inviting them to submit the matter to alternative dispute resolution and advising that if they did not respond in 30 days, plaintiff “may authorize” filing of a lawsuit. When Jon called that lawyer he was told, “we’re going to make you move the gate.” Nothing happened until almost one year later, in March 2005, when plaintiffs lawyer sent another letter suggesting mediation.

When defendants did not mediate, in April 2005 plaintiff filed this action for breach of the CC & R’s, nuisance, and declaratory and injunctive relief. The injunction sought was based on violation of the setback requirements, not defendants’ failure to obtain prior approval of the project. The case went to trial only on the injunction cause of action.

The court found in favor of plaintiff. It ruled, in part, that the five-year statute of limitations in section 336, subdivision (b) applied and thus the action was filed timely. The court also found defendants had not proven their other affirmative defenses of estoppel, laches, or waiver.

The judgment ordered defendants to lower their fence, gates, and pilasters to a maximum of 3 feet, or, in the alternative, to set them back to at least 20 feet from the front property line. In that case, the height could be up to six feet. If defendants chose the latter alternative and gave plaintiff timely written notice of their decision, plaintiff would be required to pay two-thirds of the cost of the relocation. If defendants did not timely give notice, they had to pay the entire cost of the ordered corrections. If defendants gave such notice and plaintiff did not agree in writing to pay two-thirds of the cost, the injunction would dissolve and defendants would be allowed to keep the gates and fence as built.

DISCUSSION

1. Applicable Statute of Limitations

Plaintiff filed this action more than four years but less than five years after defendants erected the gate. Defendants contend that section 336, subdivision (b), which is a five-year statute of limitations, applies only to recorded documents, in this case, CC & R’s, and not to unrecorded rules and regulations or guidelines of homeowners associations such as are at issue here. We disagree.

Section 336, subdivision (b) provides for a five-year statute of limitations for “[a]n action for violation of a restriction, as defined in Section 784 of the Civil Code.” Civil Code section 784 states, “`Restriction,’ when used in a statute that incorporates this section by reference, means a limitation on, or provision affecting, the use of real property in a deed, declaration, or other instrument, whether in the form of a covenant, equitable servitude, condition 658*658 subsequent, negative easement, or other form of restriction.”

Defendants maintain that, for this definition to apply, a restriction must be recorded. They advance several grounds for this assertion, including the plain language of the statute and its legislative history, the rule that statutes should be harmonized, the absence of the setback restriction from the recorded CC & R’s, and the principle of ejusdem generis. Based on our reading of the plain language of section 336, subdivision (b) and Civil Code section 784, we conclude section 336, subdivision (b) does not govern merely recorded restrictions but applies to unrecorded restrictions as well.

“`When interpreting statutes, “we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law” “`…'” giving them their usual and ordinary meaning and construing them in context. [Citation.] If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction. [Citations.] If the statutory language contains no ambiguity, the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs.’ [Citation.]” (Stephens v. County of Tulare (2006) 38 Cal.4th 793, 801-802, 43 Cal. Rptr.3d 302, 134 P.3d 288.) This is so “`”`whatever may be thought of the wisdom, expediency, or policy of the act.'”‘ [Citations.]” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632, 59 Cal. Rptr.2d 671, 927 P.2d 1175; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733, 3 Cal.Rptr.3d 636, 74 P.3d 737.)

A restriction, as defined in Civil Code section 784, is a limitation on the use of real property, as set out in several specified types of documents, including covenants, equitable servitudes, conditions subsequent, and negative easements, with a catchall description at the end applying to any “other form of restriction.”

Nothing in the language states this last category of restriction must be recorded. The fact that all enumerated documents are generally recorded does not compel such an interpretation. Had that been the intent of the Legislature, it could have easily used the language any “other form of recorded restriction.”

But it did not, and it is not within our province to do so in the guise of interpretation, even if that seems like a more logical or better policy. If such was its intent, the Legislature has the ability and opportunity to amend the language to make this clear.

Because we determine the plain meaning of the statute based on its language, we do not resort to extrinsic aids to construe its meaning. (Beat Bank, SSB v. Arter & Hodden, LLP (2007) 42 Cal.4th 503, 508, 66 Cal.Rptr.3d 52, 167 P.3d 666.) Thus, we need not address defendants’ other arguments as to the meaning of the statutes.

2. Laches

Defendants also assert that plaintiffs claim is barred by laches. “`The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ [Citation.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68, 99 Cal.Rptr.2d 316, 5 P.3d 874.) Defendants argue plaintiffs more than four-year delay in filing the action was “patently unreasonable” and that the delay shows plaintiff acquiesced in defendants’ placement of the gate. It points to three 1-year periods in which plaintiff did virtually nothing with respect to defendants’ gate.

659*659 There is no question plaintiff delayed in enforcing the setback restriction. Despite the spin it tries to put on the facts, plaintiffs alleged “sheer volume” of attempts and “continued … efforts to bring [defendants] into compliance” do not explain those lengthy gaps in its contacts with defendants or its extended inactivity. We do not condone this course of conduct and in the right fact situation, which we do not define, such delays could support a finding of laches.

But we agree with the trial court that defendants cannot show prejudice. They began building the gate before they submitted an application for approval of their project and before the architectural committee got involved. The evidence showed construction was finished by as early as November 2000 and no later than February 2001. Thus, it would not have mattered whether plaintiff was diligent.

Nor, despite the delays, can defendants show plaintiff acquiesced. Plaintiff made its opposition to the gate known from the moment it was built, and it never changed its position or communicated to defendants it had changed its position. And, importantly, Jon testified that from February 2001 until the complaint was filed, he understood that plaintiff “appeared to want the gate moved.” Thus, the defense of laches must fail.

3. Waiver

Defendants also assert plaintiff waived its right to enforce the guidelines because it did not apply them fairly, reasonably, or uniformly. They contend plaintiff had the burden of proof to show it in fact did enforce the guidelines fairly, and the court erred in not requiring that plaintiff meet that burden but instead put the burden on defendants to prove an affirmative defense. Finally, defendants claim the court erred by excluding defense evidence that showed plaintiff had arbitrarily allowed a nonconforming use by another property owner. None of these arguments persuades.

“When a homeowners’ association seeks to enforce the provisions of its CCRs to compel an act by one of its member owners, it is incumbent upon it to show that it has followed its own standards and procedures prior to pursuing such a remedy, that those procedures were fair and reasonable and that its substantive decision was made in good faith, and is reasonable, not arbitrary or capricious. [Citations.]” (Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, 772, 224 Cal.Rptr. 18.) “The criteria for testing the reasonableness of an exercise of such a power by an owners’ association are (1) whether the reason for withholding approval is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner. [Citations.]” (Laguna Royale Owners Assn. v. Darger (1981) 119 Cal. App.3d 670, 683-684, 174 Cal.Rptr. 136.)

Here there was evidence plaintiff followed its ordinary procedures in attempting to enforce the setback requirement. It sent letters demanding that defendants comply with the guidelines, invited defendants to meet with the board, imposed fines, and finally filed suit.

Defendants complain that their nextdoor neighbors, Anthony and Kathleen Garcia, built in violation of the guidelines but plaintiff did not sue them to compel compliance with the architectural rules. Thus, they conclude, plaintiff lost its right to enforce the restrictions as to defendants. The Garcias obtained plaintiffs approval to build pilasters within the 20-foot setback area. But during construction, 660*660 which occurred six years before defendants’, they apparently built their pilasters six feet high in violation of the guidelines. Plaintiff was unaware that had occurred until defendants pointed it out during the pendency of this dispute.

At that point plaintiffs committee sent letters to the Garcias asking them to modify the pilasters to conform to the guidelines, and the committee and the management company discussed the violation. Plaintiff determined that the Garcias’ pilasters were “not as obtrusive as [defendants’] gate was.” It also concluded, as its expert, an architect and engineer, testified that the Garcias’ pilasters are only a “minor obstruction” and therefore not as dangerous, compared to defendants’ gate, which is a safety hazard.

Although this is not overwhelming evidence, it met plaintiffs burden of proof to show it did address the Garcias’ violation and did not act unreasonably or unfairly in not suing them as it did defendants. Thus, the court did not improperly shift the burden of proof to defendants’ to prove an affirmative defense,

“[E]nforcement of the restriction must be in good faith, not arbitrary or capricious, and by procedures which are fair and uniformly applied. [Citation.] The framework of reference, as the court made clear, is not the reasonableness specific to the objecting homeowner, but reasonableness as to the common interest development as a whole. [Citation.]” (Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600, 1610, 47 Cal. Rptr.2d 783.) The evidence shows plaintiff took into account the relative safety of the two different structures, thus evaluating them in light of the entire development, in deciding how to proceed.

Defendants argue they had evidence of another homeowner’s violation of the guidelines that would support their waiver argument but the court erroneously excluded it. But nothing in the record shows defendants made an offer of proof, as was their burden, nor does it give us any information about the particulars of the evidence such that we could determine whether it was error to exclude it. Magic Kitchen LLC v. Good Things Internal, Ltd. (2007) 153 Cal.App.4th 1144, 1164-1165, 63 Cal.Rptr.3d 713.)

4. Plaintiffs Appeal

Plaintiff filed, a cross-appeal, claiming the court abused its discretion in ordering it to pay for two-thirds of the cost of moving defendants’ gate. It maintains there was no evidence the cost of relocating the gate would “cost twice” the amount plaintiffs expert testified to. Plaintiff misstates the court’s decision.

In its tentative ruling the judge did note it was “very likely it will cost appreciably more than [the expert’s] estimate.” But its ruling was not based on evidence of the cost. The tentative stated it was because of “plaintiffs sloppiness in not pursuing this much more promptly….” Injunctions are based on equity (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1166-1167, 42 Cal.Rptr.3d 191), and we see no abuse of discretion in the result the court fashioned. (See City of Vernon v. Central Basin Mun. Water Dist. (1999) 69 Cal. App.4th 508, 516, 81 Cal.Rptr.2d 650.)

Plaintiff asserts that its appeal “is apparently moot” because defendants did not timely elect to move the gate back at least 20 feet from the property line, and asks for a “clarification of the effect of the passage of [the] time lines” set out in the judgment. We decline to do so. There is nothing in the record to show what occurred after judgment was entered with respect to the gate. Nor do we give advisory opinions. (Coleman v. Department of Personnel Administration (1991) 52 661*661 Cal.3d 1102, 1126, 278 Cal.Rptr. 346, 805 P.2d 300.)

DISPOSITION

The judgment is affirmed. In the interests of justice, the parties shall bear their respective costs on appeal.

WE CONCUR: O’LEARY and FYBEL, JJ.

Keywords: Governing Documents, Statute of Limitations

Morgan v. Veach

59 Cal.App.2d 682 (1943)

John L. Wheeler for Appellants.

Max E. Gilmore and Albert E. Marks for Respondents.

WOOD (Parker), J.

Summary by Mary M. Howell, Esq.:

Owner seeking to enforce setback restrictions against a neighbor is not barred by laches because once the owner was able to discern from his lot that a setback violation was occurring, he put his neighbor on notice of the problem.   Judgment in the alternative (cure the setback violation or pay damages) was not inappropriate.

**End Summary**

In this action to enjoin the violation of building setback restrictions, plaintiffs obtained judgment requiring defendants to move the building erected by them in violation of the restrictions or to pay $1,000 damages. 685*685

The tract of land involved herein, consisting of 12 lots, included 10 hillside lots, the fronts of which adjoined a semicircular street that extended up-grade in a northerly direction. Beginning at the southerly end of the tract and extending northerly, the lots fronting on that street were numbered from 1 to 10 inclusive. Generally stated, the lots faced as follows: lots 1, 2, 3, and 4, south; lots 5 and 6, southeast; and lots 7, 8, 9, and 10, east.

The lots owned by plaintiffs and the approximate values thereof were as follows: Raymond R. Morgan, lot 1 and house, $20,000; Karl and Edith Schneider, lot 2 and house, $23,000; Pauli Hoffman, lot 4 and house, value not stated; Virginia W.Morgan, lot 8 and house, $25,000; and Jean and Paul Carson, lot 9, vacant, $4,000. Defendants, husband and wife, owned lot 10, at the northerly end of the street.

All the parties held their lots under a deed which provided, pursuant to a general plan of improvement of said lots and tract, that the residences on the various lots “shall be placed not less than” the following mentioned distances from the front property lines of the lots: 45 feet on lots 1, 2, 3, and 4; 40 feet on lot 5; 35 feet on lot 6; 30 feet on lot 7; 25 feet on lot 8; and 20 feet on lots 9 and 10. The deed provided further that “no building … shall be erected or maintained within 5 feet of the sidelines of any of said lots nor any fence, wall or hedge nearer to the front line thereof than the setback hereinabove established or elsewhere thereon at a greater height than 5 feet”; and that said conditions “shall … terminate … after January 1, 1960. … Provided also that a breach of any of the foregoing conditions shall cause the lot … to revert to said grantor, or its successors … and as to the owner … of any other lot … the foregoing conditions shall operate as covenants running with the land, and a breach of any such covenants … may be enjoined, abated or remedied by said grantor … or by any such owner. …”

Defendants admitted in their answer that their residence did not comply with the restrictions, but denied that it was constructed in violation of them. They alleged further: (1) that plaintiffs’ claims for injunctive relief were barred by laches on the part of plaintiffs, in that, when the action was commenced the house was substantially completed; (2) that plaintiff Pauli Hoffman constructed a house and a wall on lot 4 which did not conform with the restrictions, and therefore 686*686 the claims of plaintiffs for injunctive relief were barred; and (3) that plaintiff Virginia W. Morgan maintained for many years a hedge on lot 8 between the southeasterly corner of the residence on lot 8 and the curb, which did not conform with the restrictions, and therefore the claims of plaintiffs for injunctive relief were barred.

On July 22, 1941, defendants received a deed to lot 10 which recited that the lot was subject to restrictions of record. On August 1st, defendants received a policy of title insurance which stated the number of the book and page of the official records wherein the restrictions appeared. Stakes and lines placed on lot 10 by defendants on July 15th to indicate the foundation lines remained in position until August 10th, when excavation was commenced. Construction of the cement foundation, started September 3rd, was finished September 13th. Erection of the rough framework of the building, commenced September 15th, was completed September 27th.

Defendant Russel A. Veach and plaintiff Raymond R. Morgan will be referred to hereinafter as the defendant and Morgan, respectively.

About September 21st, when some of the rough framework of the walls had been erected, a brother of plaintiff Morgan, who lived across the street from lot 10, told defendant that the house was too close to the front property line. On September 21st, plaintiff Morgan, who owned lot 1 and lived on lot 8 owned by his wife Virginia W.Morgan, noticed for the first time that defendant was building in violation of the restrictions; and on September 22nd (according to his testimony), or on September 29th (according to defendant’s testimony), he said to defendant by telephone that the house was too close to the line and defendant was violating the restrictions. Defendant replied that his builder had told him he could build anywhere on the lot and he (defendant) thought he would go ahead as planned. About September 29th, defendant went to Morgan’s office and told him: that he had found the restrictions as to the setback; that he did not know what he could do about it, since it would cost him more to relocate the house than he had expended at that time; and that he was going ahead with the building anyway. Morgan replied that if he did go ahead, he (Morgan) would have to do something about it and try to stop him legally. About October 1st,Morgan’s attorney sent a letter to defendant, which 687*687 reached him October 15th or 16th, stating that unless defendant complied with the restrictions, relief would be sought from the courts. Thereafter and during October, the rough plumbing, the fireplace, cabinets, paper and netting on the outside for stucco, and plaster board on the inside, were installed. This action was commenced on October 31, 1941. On November 1st, a temporary restraining order was served on defendants. At that time the house was ready for the outside stucco and the inside plaster. Within a week after the temporary restraining order was dissolved, defendant resumed work on the house, and, according to his statement, he proceeded to complete it “in a hurry” because materials were hard to get. The house was completed on December 24th. The cost of the house, not including the lot, was about $10,000.

The front property lines of the lots are 8 feet from the street curb, and there is no sidewalk. The garage on defendants’ lot is “a part of the main residence,” as required by the restrictions, and adjoins the house at the front on the south side. Defendants’ house, instead of being at least 20 feet from the front property line, is the following distances from the front property line: the northerly corner of the house, 8.2 feet; the northeast corner of the garage, 13.65 feet; and the southeast corner of the garage, 21.7 feet. Defendants’ house, instead of being 5 feet from the lot sidelines, is the following distances from the sidelines of lot 10: the north side, 3.8 feet; and the south side, 3.5 feet.

The trial court found that defendants’ residence did not comply with said restrictions, particularly in that said building was placed less than 20 feet from the front property line of lot 10; that about September 21, 1941, plaintiffs caused defendants to be notified of the fact that defendants were constructing a building which did not conform with the setback restrictions; that notwithstanding said fact and notice defendants continued with and completed the construction of said building in violation of said restrictions and covenants; that said violations by defendants caused damage to plaintiffs, and the beauty and symmetry of the plan of improvement of the tract was diminished; that there was no laches on the part of plaintiffs; that it was not true that the building constructed on lot by plaintiff Hoffman, and the building constructed on lot 8 by plaintiff Virginia W. Morgan, did not conform with said restrictions. 688*688

[1] The first contention of defendants is that the trial court abused its discretion in granting the injunction. They assert “that while the defendants’ residence building was constructed in violation of the restrictions in that the residence was set too close to the front property line, such construction was the result of inadvertence and mistake upon the part of defendants.” They state that the inadvertence and mistake occurred by reason of the following: that the real estate agent who sold the lot told them the curb was the front line of the lot, and they could build anywhere on the lot, except within 5 feet of the south line; that the deed received by defendants did not specifically set forth any restrictions; that the lot was on a steep hillside and there was no sidewalk or trees in the space of 8 feet between the curb and the front property line, dedicated to the city, to indicate the front line was not the curb; that the garage on the lot north of lot 10 (which was not in the tract involved) was closer to the curb than defendants’ house; and that lot 9, to the south of defendants’ lot was vacant, and the street between the Morgan house on lot 8, and defendants’ lot 10 curved appreciably into the hill.

The matters just referred to, standing alone, might indicate inadvertence and mistake, but there were other circumstances to be considered by the trial court. It is difficult to understand why defendant relied upon the agent for information regarding the restrictions when authoritative information was available, as indicated by references to the restrictions in the deed and policy of title insurance received by defendants before the building was commenced. Although he might have acted inadvertently prior to the time he was notified by Morgan’s brother and by Morgan that he was building too close to the line, thereafter he proceeded with knowledge that the restrictions required a setback of not less than 20 feet and with knowledge that his building was considerably less than 20 feet from the line. At the time he was so notified, the expense of changing the location of the house would have been between $1,500 and $2,000. Defendant did not heed the notices, declared his intention on two occasions to proceed without complying with the setback restrictions, and proceeded “in a hurry” to complete the house irrespective of said oral notices and a written demand by Morgan’s attorney that he comply with the restrictions, and irrespective of pending litigation to prohibit him. Although defendant stated that he relied upon 689*689 the agent for information as to the restrictions and the agent told him the building should not be within 5 feet of the south line, it is to be noted that defendant violated even that restriction and built the house 3 1/2 feet from the south line. There was evidence that defendant intended in the first instance to build farther back on the lot but he changed his mind in order to have more space in the back yard. The construction in violation of the restrictions, at least after the foundation was in, was not the result of inadvertence or mistake.

[2] Defendants assert further, as a part of their argument that the court abused its discretion in granting the injunction, that, although the plaintiffs Morgan were in a position at all times to observe the proposed location of the house, a period of more than two months elapsed before defendant was advised the restrictions were being violated, that plaintiffs permitted defendant to continue the construction until the latter part of October, when the house was substantially completed, without bringing to his attention their determination to require compliance with the restrictions; and that while such failure of plaintiffs to act might not have constituted laches the elements of estoppel were present and the issuance of an injunction worked an inequitable burden on defendants. By reason of the hillside character of defendants’ lot, the terraces thereon, and the curve of the street, it was difficult for persons who were not on defendants’ lot and were not builders to determine, before the walls were started, whether the restrictions were being violated.

Plaintiffs were not required, at the risk of waiving a violation of restrictions by defendants, to scrutinize the activities of defendant to ascertain whether he was violating the restrictions. At a time, however, when Morgan could first determine with reasonable certainty, without being upon the lot, that the restrictions were being violated, that is when the walls were started, he notified defendant immediately that he objected to the violation. In response to defendant’s statement that he would go ahead as planned, plaintiff Morgan stated he would try to stop him legally. The position of Morgan that he would insist upon compliance with the restrictions was placed before defendant definitely and promptly when he ascertained the facts. The claim of laches or estoppel cannot be sustained.

[3] An appropriate statement relative to defendants’ assertion that an injunction would work an inequitable burden is in 28 Am.Jur., section 56, page 253 as follows: “In view of 690*690 the drastic character of mandatory injunctions, the rule under consideration as to balancing the relative conveniences of the parties applies with special force to a prayer for such mandatory relief. Where, therefore, by innocent mistake or oversight, buildings erected … slightly encroach … and the damage to the owner of the buildings by their removal would be greatly disproportionate to the injury … the court may decline to order their removal … But relief by way of a mandatory injunction will not be denied on the ground that the loss caused by it will be disproportionate to the good accomplished, where it appears that the defendant acted with a full knowledge of the complainant’s rights and with an understanding of the consequences which might ensue. …”

In a note in 57 A.L.R., first column, page 343, it was said: “Wilfulness on the part of the defendant in proceeding with the violation of the restriction after warning by the complainant, especially after suit is brought, is a ground for equitable relief by mandatory injunction greatly stressed by the courts. Thus, one who deliberately violates building restrictions placed upon his lot for the benefit of a district in a city cannot avoid a mandatory injunction so to build as to comply with the restrictions, on the theory that the loss caused by it will be disproportionate to the good accomplished.” The case of Stewart v. Finkelstone, (1910) 206 Mass. 28 [92 N.E. 37, 40, 138 Am.St.Rep. 370, 28 L.R.A.N.S. 634] cited in support of that statement, stated at page 38: “It is strongly urged that a mandatory injunction ought not to issue, for the reason that it would … impose on the defendant a loss disproportionate to the good it can accomplish. … This remedy … in cases proper for its exercise … ought not to be with-held merely for the reason that it will cause pecuniary loss. It has been found that the defendant with full knowledge of the restrictions ‘deliberately attempted’ to override them, and thus to deprive the district of the character given it by the restrictions. He took his chances as to the effect of his conduct with eyes open to the results which might ensue. It has been the practice of courts to issue mandatory injunctions upon similar facts.”

[4] Defendants assert also, under their point concerning abuse of discretion in granting the injunction, that plaintiffs did not prove any damages. In Walker v. Haslett, (1919) 44 Cal.App. 394 [186 P. 622], it was said at page 398: “When clearly expressed, covenants of this description will be strictly 691*691 enforced, and a court of equity will decree an injunction, and this without any showing of actual damage or substantial injury. … He [owner] has the right to define the injury for himself, and also for his grantees of the remaining lots. … He, or any subsequent owner … may enforce the covenant when it is broken, and is not to be defeated by the opinion of any number of persons that the breach occasions no substantial injury.” It was said in Joyce v. Krupp, (1927) 83 Cal.App. 391 [257 P. 124], at the bottom of page 398: “Where equitable relief is sought, proof of actual or substantial injury is not essential, the establishment of a violation of a uniform building restriction being all that is necessary to entitle a complaining owner to relief. …” “The propriety of affording equitable relief by injunction rests in the sound discretion of the trial court to be exercised according to the circumstances and exigencies of each particular case.” (Diederichsen v. Sutch, (1941) 47 Cal.App.2d 646, 649 [118 P.2d 863].) The court did not abuse its discretion.

[5] The second contention of defendants is that equitable relief should not be granted to one who has violated restrictions. They assert that plaintiff Virginia W. Morgan violated restrictions as to lot 8 in that she maintained a hedge about 7 feet in height on the south side of her house. A witness called by defendants testified to that effect.Morgan testified that there was a line of shrubs, but not a solid line, between the curb and the southeast corner of the house; that the shrubs were not on the Morgan property; that they were not a hedge; that he planted them on the adjoining lot 7, with the permission of the owner; and that he could remove them in 10 minutes. The court found that it was not true that the building on lot 8 did not conform with the restrictions. No finding was made concerning the hedge or shrubbery, but the finding that the building was not in violation of the restrictions should be regarded, in view of the judgment, as a general finding sufficient to include the item of landscaping. They also assert that plaintiff Hoffman violated the restrictions as to lot 4, in that a wall which extended across the premises was 40 feet from the curb instead of being not less than 45 feet from the property line, as required by the restrictions. Morgan testified that the part of the premises referred to as a wall was landscape gardening to hold up flower beds. Defendants also contended that a corner of the Hoffman garage 692*692 was 2 feet closer to the property line than was permitted by the restrictions. The garage adjoined the residence building, as required by the restrictions, and was a part of it. The court found that it was not true that the building on lot 4 did not conform with the restrictions. No special finding was made concerning the wall or the garage. There was no allegation in the answer referring specially to the garage. The general finding concerning the building included the garage and was sufficient, in view of the judgment, to include also a determination that the portion of the premises referred to as a wall or a part of a flower bed was not a violation.

[6] Furthermore, it was not alleged that any of the plaintiffs other than the owners of lots 10 and 4 violated the restrictions. Defendants did contend, however, that a hedge on lot 2 which the owner, Mrs. Schneider, said was 1 foot high, was a violation. Even assuming that some of the plaintiffs had violated the restrictions, the other plaintiffs would not by reason thereof be prevented from obtaining injunctive relief, if they were otherwise entitled to it and had no knowledge that the restrictions had been violated by any person other than defendants. (Alderson v. Cutting, (1912) 163 Cal. 503, 506 [126 P. 157, Ann.Cas. 1914A 1].)

[7] The third contention of defendants is that damages cannot be awarded as an alternative when only injunctive relief was sought in the complaint. Their argument is that plaintiffs sought only injunctive relief in the complaint and did not establish any facts upon which the court could award damages. The complaint was labeled “Complaint for Injunction,” did not include a prayer for damages, but did allege that said violations by defendants caused great damage to plaintiffs, and included a prayer for general relief. “The subject matter of an action and the issues involved are determinable from the facts pleaded, rather than from the title or prayer for relief.” (Standard Brands of California v. Bryce, (1934) 1 Cal.2d 718, 721 [37 P.2d 446].) The case was tried upon the theory that the amount of damages was involved. Plaintiffs and defendants called witnesses who testified concerning damages. The trial judge stated just before the case was submitted that he did not know how much he would allow as damages or whether he would make an alternative judgment. At the time the judge made that statement defendants did not indicate in any way that they considered the amount of damages was not involved. The amount of damages693*693 was an issue in the trial. At the beginning of the trial the parties requested the trial judge to view the property involved, and the judge stated he would do so after testimony had been received. At the close of the trial the judge stated that plaintiffs were entitled to a remedy, that he had not looked at the premises and had not indicated “how much he would allow”–whether a stated amount or “an alternative judgment to move the house back” or allow damages, and he would look at the property before he made up his mind. The record does not show that the judge did not view the property, and it will be assumed that he did view it. In the case of Rose v. State of California, (1942) 19 Cal.2d 713 [123 P.2d 505], which was a condemnation case in which the judge determined the amount of damages, it was stated at page 733: “That the trial judge is not bound by the opinion of the witnesses on market value is well settled. … Furthermore, in the instant case the trial judge visited the premises, and the information so obtained ‘is independent evidence that can be taken into consideration in determining the issue of the case.'”

[8] Defendants also argue that the court in awarding $1,000 damages found that plaintiffs’ injury was compensable, and therefore they had an adequate remedy at law and injunctive relief should have been denied. It can be argued with equal force that the fact that injunctive relief was granted was a finding that the injury was not compensable. An alternative judgment was rendered in the case of Carey v. Bowie, (1933) 130 Cal.App. 400 [19 P.2d 1032], which required defendants to remove a part of their dwelling, in order to comply with building restrictions, to a point not less than 4 feet from the property line, or to pay $1,000 damages. On appeal by defendants the judgment was affirmed. The alternative form of the judgment, however, was not discussed in the opinion. The attorney for defendants herein correctly states that it does not appear from the opinion therein that alternative relief was not prayed for. The transcript in the cited case is not available, but the respondent’s brief therein stated, “Plaintiff prayed for a mandatory injunction compelling the removal of the offending addition, for damages in the sum of One Thousand Dollars ($1,000), and for general relief.” It therefore appears that alternative relief was not prayed for in the complaint in the cited case in which an alternative judgment was rendered. It is true that was not a 694*694 case wherein injunctive relief only was sought, but it is also true that alternative relief was not sought therein. The awarding of damages in the present case, however, did not indicate that the injunction should not have been granted. The circumstances in the case at bar were such that the court was required to grant the mandatory injunction. The defendant deliberately proceeded, after notices and protests, to construct his building in violation of the restrictions with full knowledge that he was violating them and in total disregard of the notices and protests of the owners of other lots. The encroachment by defendants within the restricted distance from the property line was not slight, but was great. At one place defendants’ building extended about 12 feet into the restricted area. The evidence shows that the expense of moving the house after the foundation was in would have been between $1,500 and $2,000. Of course, after the house was completed, the expense of moving it would be considerably more. The mandatory injunction having been required by the evidence, and having been granted, the alternative part of the judgment whereby defendants were granted the privilege of paying $1,000 damages in lieu of complying with the restrictions, was therefore a ruling very much in favor of defendants. The position of defendants is, therefore, that they are objecting to a part of the judgment which, under the circumstances, is favorable to them. The plaintiffs have not appealed from that portion of the judgment. It is not necessary, however, to decide herein either of the questions as to the propriety of an alternative judgment for damages or as to the sufficiency of the evidence to support the award of damages. The judgment of injunction was supported by the findings and the evidence, and it was not necessary, as above shown, that any specific amount of damage be proved as a basis for the injunction. The alternative part of the judgment which permits the defendants to evade the injunction by paying $1,000 was not based upon a finding of damages in that amount, for there was no such finding. The absence of such a finding is a sufficient answer to defendants’ contention that the award of damages shows a case where plaintiffs can be adequately compensated in damages and hence no injunction should be granted. [9] The alternative, allowing payment of $1,000, apparently was an act of grace toward the defendants, and was based upon nothing appearing in the findings. If it was an error, it was in favor of defendants. The evidence clearly 695*695 shows, and defendants concede, that it would cost them much more than $1,000 to comply with the injunction. The alternative allowing the payment of damages being in defendants’ favor, they cannot complain of it on this appeal. (2 Cal.Jur. 841; Irvine v. MacGregor, (1928) 203 Cal. 583, 586 [265 P. 218].)

[10] Defendants also contend that they have been deprived of a jury trial upon the issue of damages because the complaint did not include an issue as to damages, and there was no issue upon which they could base a request for a jury. As above stated, the case was tried upon the theory that the issue of damages was involved. Also as above shown, if injunctive relief was the only issue (as defendants contend), proof of actual or substantial injury was not essential. (Joyce v. Krupp, supra.) Defendants did not suggest at any time when the matter of damages was being presented by plaintiffs and themselves that defendants desired a jury trial. Furthermore, when the judge stated at the close of the case that he might allow damages, no indication was made by defendants that they desired a trial by jury if damages were to be allowed. Under such circumstances defendants’ contention that they were deprived of a jury trial cannot be sustained.

The judgment is affirmed.

Shinn, Acting P. J., and Shaw, J. pro tem., concurred.

Keywords: Governing Documents, Statute of Limitations