Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. GC034608, Jan A. Pluim, Judge.
Knapp, Petersen & Clarke and Kevin J. Stack for Plaintiffs and Appellants.
Ernster Law Offices, John H. Ernster, Katharine A. Miller and Ryan K. Marden for Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Plaintiffs, Janice Sharp and Dane Hoiberg, appeal from a summary judgment in favor of defendants, Paul Anderson and Elizabeth Anderson. We affirm the judgment.
II. BACKGROUND
Defendants seek to build a residence on property adjoining plaintiffs’ land. This is one of several lawsuits that have been filed in connection with defendants’ development plans. The prior lawsuits include Sharp v. Anderson (Super.Ct. L.A. County, No. GC033711) and Sharp v. City of Pasadena (Super.Ct. L.A. County, No. BS100584). In Sharp v. Anderson, plaintiffs filed an April 28, 2004 complaint alleging they had a prescriptive easement to an underground pipeline on defendants’ property. The pipeline was supplying irrigation water to plaintiffs’ land. A September 17, 2007 judgment for defendants was affirmed on appeal. (Sharp v. Anderson (Mar. 27, 2009, B201093 [nonpub. opn.].) The Supreme Court denied review. (Sharp v. Anderson (June 10, 2009, S172754). In the suit against the City of Pasadena, plaintiffs filed a November 30, 2005 mandate petition which was amended in February 2007. The amended mandate petition alleged the City of Pasadena issued building and grading permits to defendants in violation of the Subdivision Map Act (Gov. Code, § 66410 et seq.) and the municipal code. The trial court found no such violations. On August 8, 2007, the trial court denied the amended mandate petition. We affirmed that order on appeal. (Sharp v. City of Pasadena (Sept. 25, 2008, B201855 [non pub. opn.]).) The Supreme Court denied review. (Sharp v. City of Pasadena (Dec. 10, 2008, S168028).)
The operative pleading in the present case is a second amended complaint. Defendants were named in the first (trespass and encroachment), second (violation of covenants, conditions and restrictions), third (Subdivision Map Act violation), fifth (declaratory relief) and sixth (injunctive relief) causes of action. The trial court summarily adjudicated the first cause of action in defendants’ favor. It sustained defendants’ demurrer to the third cause of action without leave to amend. It denied defendants’ summary adjudication motion as to the second, fifth and sixth causes of action.
The parties’ homeowners’ association, the Alta San Rafael Association, Inc., and individuals members of its board (collectively, the association), were named as codefendants in the second amended complaint. In their second cause of action, plaintiffs alleged: the purpose and intent of the covenants, conditions and restrictions was to preserve, maintain and further develop the character of the tract and protect the views, outlook and surroundings of the land for the benefit of the association’s members; defendants’ construction as planned would negatively impact and interfere with plaintiffs’ views, outlook and surroundings in violation of the covenants, conditions and restrictions; plaintiffs’ planned construction would also violate the covenants, conditions and restrictions by trespassing on commonly owned property; and plaintiffs were entitled to injunctive and compensatory relief. The fourth cause of action alleged individual members of the association’s board had breached their fiduciary duties. The trial court granted the summary judgment motion and ruled: the directors did not breach their fiduciary duties (fourth cause of action); defendants’ building plans, which the association had approved, did not violate the covenants, conditions and restrictions (second cause of action); and the association’s conduct in approving defendants’ plans was consistent with the covenants, conditions and restrictions. The trial court ruled that as a matter of law the directors acted in good faith in what they believed was the association’s best interest. The trial court entered a summary judgment for the association. We affirmed the judgment on appeal. (Sharp v. Alta San Rafael Association, Inc. (Jul. 28, 2009, B207606) [nonpub. opn.].) The Supreme Court denied review. (Sharp v. Alta San Rafael Association, Inc. (Nov. 10, 2009, S176127.)
When the trial court granted summary judgment for the association, it observed there was no case left and opined that as a matter of law defendants were also “entitled to be dismissed” from the lawsuit. Defendants filed a summary judgment motion as to the remaining causes of action against them, the second, fifth and sixth causes of action. Plaintiffs filed written opposition to the motion. On July 1, 2008, however, the parties stipulated to entry of summary judgment under the following circumstances: “In light of the prior summary judgment ruling [in the association’s favor], the parties agree as follows: [¶] Summary judgment is granted in favor of [defendants]... and against plaintiffs.... Pursuant to the granting of the summary judgment, judgment is entered in favor of [defendants]... and against [plaintiffs]. It is understood that the plaintiffs... reserve the right to contest this judgment by an appeal and the consent to this judgment was given to facilitate an appeal following the previous adverse determination on the prior motion for summary judgment. This stipulation shall not preclude [defendants]... from claiming they are the prevailing parties in this action.” Summary judgment was entered pursuant to the stipulation on July 1, 2008. This appeal followed.
III. DISCUSSION
A. Appealability
Defendants argue plaintiffs have no “standing” to appeal because they invited the judgment. Defendants further assert this is not a case in which the judgment was entered to facilitate an appeal after a critical adverse ruling. Defendants reason: there was no ruling on their summary judgment motion; plaintiffs merely assumed the trial court’s decision on the motion would be adverse to them because the association had earlier prevailed against plaintiffs; and plaintiffs cannot seek a trial in the first instance in the appellate court. The pertinent question is whether the judgment is appealable in the somewhat unique procedural context of this case. As a general well-established rule, a party cannot appeal from a consent judgment—that is one entered pursuant to the parties’ agreement and intended as a full and final settlement of their dispute. (Connolly v. County of Orange (1992) 1 Cal.4th 1105, 1111; Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 817; Mecham v. McKay (1869) 37 Cal. 154, 158.) But a stipulated judgment is appeal able when consent is given for the sole purpose of facilitating an appeal following an adverse determination of a critical issue and the parties understand there is no intent to abandon the right to be heard on appeal. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400-401; Building Industry Assn. v. City of Camarillo, supra, 41 Cal.3d at p. 817; Mecham v. McKay, supra, 37 Cal. at pp. 158-159.) In Building Industry Assn., our Supreme Court observed, “[I]t is ‘wasteful of trial court time’ to require the plaintiff to undergo a probably unsuccessful... trial merely to obtain an appealable judgment.” (Building Industry Assn. v. City of Camarillo, supra, 41 Cal.3d at p. 817; accord Harrington-Wisely v. State of California (2007) 156 Cal.App.4th 1488, 1496.)
Here, plaintiffs’ consent to the summary judgment was given only to facilitate an appeal. Plaintiffs did not intend a full and final settlement of their action. And they did not abandon their right to be heard on appeal. Plaintiffs consented following the trial court’s summary judgment in favor of the association and findings adverse to them—that defendants’ building plans did not violate the covenants, conditions and restrictions and the association had acted in good faith. The present judgment is appeal able.
B. Defendants’ Renewal Of Their Summary Judgment Request
Plaintiffs contend, as they did in the trial court, that defendants’ renewed summary judgment motion (which followed their summary adjudication motion) violated Code of Civil Procedure section 437c, subdivision (f)(2) which states in part, “[A] party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” We review the trial court’s decision to consider defendants’ renewed motion for an abuse of discretion. (Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 733; Pender v. Radin (1994) 23 Cal.App.4th 1807, 1812.) We find no abuse of discretion. The trial court could reasonably conclude its ruling on the association’s summary judgment motion was a newly discovered circumstance warranting defendants’ renewed motion. (Cf. Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 827 [change of law]; De La Pena v. Wolfe (1986) 177 Cal.App.3d 481, 485 [recently published case law].)
C. The First Cause of Action: Encroachment And Trespass
In their second amended complaint, plaintiffs alleged defendants intended to construct a driveway on land commonly owned by and intended for the exclusive use of association members without having obtained the required consent of each such member. As noted above, the trial court summarily adjudicated the first cause of action in defendants’ favor. The trial court ruled Civil Code sections 1361, subdivision (b) and 1361.5 permitted the use. Civil Code section 1361, subdivision (b) states: “In a stock cooperative, and in a planned development with common areas owned by the association, there is an easement for ingress, egress, and support, if necessary, appurtenant to each separate interest. The common areas are subject to these easements.” Section 1361.5 provides, “Except as otherwise provided in law, an order of the court, or an order pursuant to a final and binding arbitration decision, an association may not deny an owner or occupant physical access to his or her separate interest, either by restricting access through common areas to the owner’s separate interest, or by restricting access solely to the owner’s separate interest.”
Plaintiffs now argue it was error to grant summary adjudication because defendants’ proposed use of the commonly held lot is unnecessary and is contrary to a 1974 decision by the association. No such assertions were pleaded. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252 [summary judgment motion directed only to issues framed by pleadings]; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 [same].) Moreover, plaintiffs have failed to establish any triable issue of material fact remains by reference to the specific facts or admissible evidence presented in connection with defendants’ summary adjudication motion. (People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37; North American Building etc. Assn. v. Richardson (1936) 6 Cal.2d 90, 102; Estate of Randall (1924) 194 Cal. 725, 728-729; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003-1004 & fn. 2; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.) Plaintiffs cite evidence—Ms. Sharp’s declaration—to the effect that an original 1925 plan for the tract, prepared by landscape architects “the Olmstead Brothers” reflected that defendants’ property was to be accessed from Los Altos Drive, not from the commonly held lot. But plaintiffs do not cite any evidence the 1925 plan controls. Plaintiffs cite no evidence or legal authority to the effect that because of the 1925 plan, defendants cannot now construct a driveway on the commonly held lot and the association cannot approve a plan that calls for such use. Plaintiffs cite no evidence defendants’ property is accessible from Los Altos Drive and therefore the use of the commonly held land is not necessary. Plaintiffs also cite a 1974 letter in which the association denied a property owner’s request to purchase a street adjacent to the lot now owned by defendants in order to enlarge the area owned. Plaintiffs cite no evidence and no legal authority in support of a claim the association’s 1974 decision somehow controls in the present circumstances. In short, plaintiffs have not met their burden on appeal.
D. The Association’s Conduct
Plaintiffs argue: there are triable issues of material fact as to the association’s conduct, its failure to act in good faith, and its failure to make a reasonable inquiry before approving defendants’ building plans; the trial court committed reversible error when it purported to evaluate the association’s actions or inactions as a matter of law; the association violated section 9 of the covenants, conditions and restrictions when it failed to appoint a landscape architect to consider defendants’ plans; the association should not have changed its earlier decision that defendants’ property was not a buildable lot; construction on defendants’ land is prohibited absent an amendment of the covenants, conditions and restrictions; plaintiffs could rely on sections 9 and 33 of the covenants, conditions and restrictions and were not required to allege a violation of specific provisions regarding height restrictions and the like; and triable issues exist with respect to the business judgment rule—whether the association’s approval of defendants’ plans was made in good faith.
As described above, the trial court has found in the association’s favor with respect to its conduct. On November 9, 2007, the trial court granted a summary judgment in favor of the association and its board members.
We asked the parties to brief the question whether plaintiffs are collaterally estopped to relitigate the issues raised in their second cause of action. Plaintiffs cannot now relitigate the asserted claims. (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511; Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Our Supreme Court has held: “‘Traditionally, we have applied the [collateral estoppel] doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in the former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]’ (Lucido v. Superior Court[, supra, ] 51 Cal.3d [at p.] 341, fn. omitted....)” (Hernandez v. City of Pomona, supra, 46 Cal.4th at p. 511.) The issues raised in the second cause of action as to defendants are identical to the issues raised in that cause of action as to the association. Those issues were actually litigated and necessarily decided in the action between plaintiffs and the association. The trial court’s decision in the association’s favor is final and on the merits. And plaintiffs were parties to the former proceeding. Hence, they are collaterally estopped with respect to the second cause of action and the derivative fifth and sixth causes of action. Plaintiffs assert there is no collateral estoppel effect. Plaintiffs argue defendants’ conduct was not evaluated or determined in the appeal involving the association. But plaintiffs have not alleged and do not point to any conduct by defendants that was at issue in the second cause of action separate and apart from the association’s actions.
E. Leave To File A Third Amended Complaint
On March 20, 2007, the trial court denied plaintiffs’ motion to file a third amended complaint adding an intentional misrepresentation cause of action. Plaintiffs briefly contend this was an abuse of discretion. Their only citation of legal authority is to Witkin on California Procedure for the proposition that amendments should be liberally permitted. (5 Witkin, Cal. Procedure (5th ed. 2008) § 1194, pp. 625-627.) Plaintiffs argue that at the time the trial court denied the motion, trial was set approximately six months away. Even if accurate, this fact alone does not demonstrate that the trial court abused its discretion in denying the motion. (See Barnes v. Berendes (1903) 139 Cal. 32, 35; Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746; Davies v. Symmes (1942) 49 Cal.App.2d 433, 444.)
IV. DISPOSITION
The judgment is affirmed. Defendants, Paul and Elizabeth Anderson, are to recover their costs on appeal, jointly and severally, from plaintiffs, Janice Sharp and Dane Hoiberg.
We concur: ARMSTRONG, J. KRIEGLER, J.