NOT TO BE PUBLISHED
CONSOLIDATED APPEALS from a judgment and order of the Superior Court of San Diego County No. 37-2009-53976-CU- OR-NC Jacqueline M. Stern, Judge.
Defendant and appellant J. T. Llanes Companies, Inc. (Appellant or Defendant) owns residential property in Vista that is adjacent to residential property owned by the family trust of plaintiff and respondent Cathy Baker, Cotrustee (Respondent or Plaintiff). The parties dispute the scope and effect of a 1977 written deed restriction (the restriction) affecting development on the southern portion of Appellant's property, and whether Appellant's planned construction of a residence there violates the protections, in the restriction, for the ocean view of Respondent's property. The restriction reads as follows: "Any structure built on subject property [Appellant's] cannot protrude further than the south line of the existing structure located at [Respondent's adjacent property]." Respondent sued Appellant for damages, injunctive and declaratory relief, for breach of the protective restriction.
The trial court issued a preliminary injunction halting construction of the structure, and held a court trial in December 2009. In addition to interpreting the restriction, the court made findings that certain bamboo plantings by Appellant amounted to a spite fence. (Civ. Code, § 841.4; all further statutory references are to the Civil Code unless noted.) A statement of decision and judgment were issued in favor of Respondent, granting declaratory relief to define and enforce the restriction, and finding liability, but no damages, on the breach of the restriction and spite fence claims. (Code Civ. Proc., §§ 527, 1060.) After making a finding that Respondent was the prevailing party at trial, the court awarded Respondent costs of suit in the amount of $10,998.92. Appellant also challenges that order (D058440), and we consolidate the two cases.
Appellant primarily challenges the judgment by claiming the trial court erroneously interpreted the restriction, as a matter of fact or law, and further abused its discretion in issuing broad injunctive relief. As we will explain, some of Appellant's arguments are not properly cognizable on appeal, because they have been forfeited or are unsupported by the record. We further find the trial court did not err in construing the restriction, nor was its exercise of discretion in issuing injunctive and declaratory relief unjustified. We have, however, determined it is appropriate to affirm the judgment as modified, with directions to the trial court (1) to strike a single sentence in paragraph 6 of the judgment, requiring the restricted area property to be returned "to its pre-construction condition, " and (2) to issue an amended judgment that differs in that sole respect, retaining all other provisions and accurately setting forth the allowable scope and exact nature of any improvements permitted in the defined restricted area, consistent with the findings in the court's statement of decision and the concessions made by trial counsel for Respondent. The postjudgment order awarding costs is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Transactions and Pleadings
In 1977, both of these parcels of property were owned by two married couples, the Rogers and the Gardners (sometimes denoted here as the Grantors or common grantors). One couple, the Gardners, lived at the house constructed in 1972 on 2037 Wonder View Drive in Vista (sometimes denoted here as Parcel 26). The adjacent downhill parcel, denoted here as Parcel 22, was vacant land.
In 1977, the Grantors decided to sell Parcel 22 to the family trust of another couple, the La Mattinos (referred to together with their family trust). Mr. La Mattino understood from the Grantors, during the transaction, that they wanted to preserve a partial ocean view that they had from their uphill property, that could have been blocked if tall structures were placed upon the downhill, southern part of Parcel 22. The deed received by the La Mattinos (the 1977 Grant Deed) was recorded and contained the subject restriction, sometimes referred to as a view protection easement: "Any structure built on subject property cannot protrude further than the south line of the existing structure located at 2037 Wonder View Drive." The La Mattinos did not sell their undeveloped Parcel 22 until 2003.
In 2002, the La Mattinos, as "husband and wife as joint tenants, " had signed a quitclaim deed in favor of their family trust, regarding all covenants and agreements that ran with the land, Parcel 22. However, at that time, their family trust remained the titleholder.
The only apparent purpose of the quitclaim evidence related to whether the easement was personal in nature or ran with the land, and as will be explained, the court correctly found, independently and based on admissions by Appellant, that the view protection easement ran with the land.
In 1987, the Grantors sold Parcel 26 (the house at 2037 Wonder View Drive, in the same configuration as in 1972) to the Mathers, who transferred it to their family trust, Respondent. The deed, which is in the record and was admitted into evidence, does not mention the restriction. However, an accompanying 1987 recorded "agreement regarding restrictions, " in which the common grantors promised not to release the 1977 Grant Deed restriction except at the request of the Mathers, was apparently never admitted into evidence, although it is included in the record on appeal.
In 2003, the Conns purchased the undeveloped Parcel 22 from the La Mattinos, and began to make residential development plans by consulting an engineering firm, Pasco Engineering (Pasco). In 2005, the Conns sold the undeveloped Parcel 22 to Appellant's family members who are owners and officers of Appellant, and who placed the title of the property in the name of the family business (all referred to as Appellant or Llanes). In addition to Parcel 22, the Conns sold the adjacent undeveloped parcel, Parcel 21, to Appellant, and together they comprise 2055 Wonder View Drive. The partially completed engineering and design plans were also transferred to Appellant. During the transaction, Mr. Conn told Appellant about the restriction and gave him a copy of the 1977 Grant Deed.
For ease of reference, since Appellant is the family company, but its officer Mr. Llanes was the main actor in these events, we will refer to Appellant as an individual, i.e., as he, him, his, etc. Likewise, since the trust is represented by its current cotrustee, Baker, daughter of the Mathers, we will refer to Respondent in the same manner as to Baker, i.e., as she, her, hers, etc.
Appellant, acting through its officer Mr. Llanes, planned to build a two-story residence on Parcels 22 and 21, just west of and downhill from Respondent's property, utilizing the previously prepared plans and including a pool. Mr. Llanes hired two professionals, Bob Belanger (an architect), and Pasco (project engineer), to work with him, and he had the east/west boundary surveyed. He told his architect, Belanger, that the restriction extended approximately 100 feet south of his northerly property line. Appellant testified he gave Belanger a copy of the 1977 Grant Deed, containing the restriction, and he believed Belanger might have given it to the Pasco firm. Later, Belanger prepared an indemnification agreement for Appellant's signature, in case there were problems with the restriction enforcement.
Mr. Llanes began to clear the property and repeatedly approached the Mathers (senior citizens) to discuss the plans, but they did not want to talk to him. In October 2007, he hired an attorney who told the Mathers that a portion of their garage encroached on his property line, but they could leave it there if they allowed him to build a gable over his planned entrance doorway, falling within the restricted area. After waiting a while, Mr. Llanes cleared away the Mathers's trees, brush and irrigation lines over his property line. Stakes were placed on Parcel 22 for construction purposes, and someone pulled them up. The parties had several confrontations before and after late 2008, when Mr. Llanes began foundation work on the residence, and he later began framing the two-story structure, which has two entry towers toward the south.
Appellant planted several bamboo plants along his property line in front of two of Respondent's picture windows, although not in front of the solid area between them. Before the end of 2008, these plants had grown to a height of around 10-12 feet and were screening Respondent's picture windows' ocean view.
Around the same time, in November 2008, Appellant wrote Pasco a letter complaining that Pasco had been told about the restriction applicable to Parcel 22, but its plans failed to accommodate the restriction found in the 1977 Grant Deed, by allowing the southern footprint of the planned residence to protrude into the restricted area as defined by the limit line agreement. Pasco responded in writing that their agreement had required Appellant's architect to provide a complete site plan, and it appeared to them that the building had been incorrectly sited, and it should be redesigned to conform to the restriction, if that could not be modified. Pasco provided a new drawing that showed that the location of the construction would protrude south into the restricted area, and told Appellant that if he proceeded with construction of the building in its current position, it was at his own risk.
Respondent's complaint was filed in April 2009, seeking injunctive and declaratory relief, and damages for breach of the written restriction agreement. She later dismissed a cause of action for quiet title.
In October 2009, Appellant filed an amended cross-complaint against Respondent and Pasco, alleging Respondent had interfered with the Pasco contract, and he sought declaratory relief and quiet title rulings. Appellant attached 10 exhibits to the pleading, including his copy of the Pasco contract, maps and other documentation of the planning process, and several examples of attorney correspondence about the scope of the restriction, among Appellant, Pasco, and Respondent. Before trial, Appellant dismissed Pasco as a cross-defendant.
B. Preliminary Injunction Motion and Ruling
In August 2009, Judge Stern heard Respondent's motion for a preliminary injunction and issued a detailed order. Pending trial and determination of the claims, Appellant was enjoined from constructing or erecting any portion of the structure on Parcel 22 in a location that is further than the south line of Respondent's existing structure. These findings were made in the preliminary injunction proceedings: Respondent had shown a likelihood of prevailing on the merits of its claim, irreparable injury would occur if relief were not granted, and there was no adequate remedy at law. (Code Civ. Proc., § 526.) The issuance of an injunction pending trial would preserve the status quo ante and the balance of hardship tipped in favor of issuing injunctive relief.
Based on the respective showings, the court found Respondent would probably prevail in showing that the restrictive language in the 1977 Grant Deed, and in the La Mattinos' 2002 quitclaim deed, constituted "a restrictive covenant running with the land, or an equitable servitude, and/or a view easement, " and the language of the restriction sufficiently met the requirements of section 1468.
Sections 1461 through 1468 define such restrictive covenants that may run with the land and set forth criteria for their enforceability.
Further, the ruling states: "[E]ven if the restriction is not enforceable as a covenant running with the land or an equitable servitude, it is an enforceable view easement per Petersen v. Friedman (1958) 162 Cal.App.2d 245." The court rejected the argument by Appellant that the subject restriction was too vague or defective, in that it failed to expressly state its objective. Rather, that objective (to preserve Respondent's views) "can be gleaned from the language of the restriction, the location of the properties involved, and the location of Plaintiff's ocean view."
As will be more fully explained post, the court rejected the argument by Appellant that he had not violated the terms of the restriction. Appellant was arguing that Respondent's home is at an angle, and there are two or more potential limit lines running south from Respondent's property, but Appellant had not shown that the lines that he and his surveyor and attorney preferred (drawn from different reference points) were south of the construction or that they could expand the restricted zone, to allow the planned construction.
Accordingly, the court granted a preliminary injunction, concluding the balance of the equities tipped in favor of Respondent, and she would suffer more harm if an injunction did not issue than Appellant would suffer if it did issue: "Defendant has been working on this construction project since at least 2005. Thus, little harm will result to Defendant if construction is delayed until this matter can be tried. [¶] On the other hand, if an injunction does not issue, Plaintiff stands to permanently lose an ocean view it has had since it purchased the property."
C. Trial Court's Rulings; Related Appeal on Costs Award
In preparation for trial, the parties prepared a joint trial readiness report, outlining the disputed issues. The parties accepted the legal issue as previously determined by the court, at the preliminary injunction stage of the proceedings, that a restrictive covenant runs with the land. However, Appellant continued to claim that the language of the restriction was too vague and ambiguous to be interpreted or enforced, in part because Respondent had been uncooperative in assisting him in determining its scope.
The matter went to court trial before Judge Stern in December 2009. In the statement of decision, the primary issues were framed as follows: "1. What is the referenced 'existing structure, ' 2. What is the south line of that structure; 3. Where does that south line appear on Defendant's property; 4. Has Defendant encroached over the south line. There is also the issue of certain bamboo that was planted by Defendant on his property that now blocks Plaintiff's westerly view."
In the discussion portion of this opinion, we will set out details about the witnesses and evidence presented on the above issues, and the factual findings made. The parties stipulated that the architect's and engineering files could be introduced as authenticated evidence, and numerous other exhibits were admitted. Much of the trial testimony from lay witnesses and professional consultants related to the correct methods for drawing the line from Respondent's house, over the undeveloped Parcel 22, and from which point of reference, in order to determine where construction would not be permissible, as protruding into the southern portion of Parcel 22. Appellant raised objections to relevancy or to admissibility of parol evidence about Mr. La Mattino's understanding about the purpose of the restriction, and the court overruled them. Respondent testified that about 10 to 15 percent of her ocean view would be blocked by the planned construction, and this would lessen her property value.
After trial, Respondent prevailed and prepared a proposed judgment. Appellant made several objections regarding costs and other matters. Ultimately, a judgment was signed, quoting the statement of decision and containing the following basic terms. First, the court determined that Respondent's "property is benefitted as the dominant tenement by a view protection easement ('Easement'), and this Easement is appurtenant to [Respondent] Property."
Next, the court concluded that Appellant's property is burdened as the servient tenement by the easement, as to that southern portion of Parcel 22. This easement was created by the Grantors, who owned both Respondent's property and Parcel 22, until they conveyed Parcel 22 by way of the 1977 Grant Deed, which contains the subject easement language ("any structure built on subject property cannot protrude further than the south line of [Respondent's] existing structure").
The judgment next recites: "It is stipulated by the Plaintiff and the Defendant, and confirmed by this Court, that the Easement shall run with the land and be binding on the successors, assigns, and transferees of Plaintiff's Property, Defendant's Property, and Parcel 22." The court described the location of the easement boundary as follows:
"The westerly prolongation of the south line of the existing residence at 2037 Wonderview Drive.... The 'south line' is defined by the southeast corner and southwest corner of the southerly facing exterior wall of the Plaintiff's residence structure. The Easement prohibits building any structures on Parcel 22 that are south of the Easement's boundary line ('Restricted Area'). The Easement's boundary line and Parcel 22's Restricted Area are shown on [an] attached drawing."
Accordingly, the permanent injunction restrained Appellant "from doing any further work on that portion of the residential structure located in the Restricted Area, " and ordered him "to immediately remove the encroaching structure(s) located in the Restricted Area at Defendant's sole cost and expense. The Defendant shall return the Restricted Area to its pre-construction condition." (Italics added.)
Regarding the "spite fence" allegation, "[t]he Court enjoins the Defendant's maintenance of its bamboo plants and orders the Defendant to immediately remove the subject bamboo plants from Parcel 22 at its sole cost and expense." No damages were awarded, and the amended cross-complaint was found to be unmeritorious as against Respondent (having previously been dismissed as to Pasco). Later, costs were awarded to Respondent as the prevailing party.
Appellant filed its notice of appeal of the judgment and the related order awarding postjudgment costs to Respondent.
Appellant mainly attacks the judgment by attempting to reargue the merits of his claims, regarding the type or scope of restriction imposed upon his property, or requesting that this court place additional limits on the injunctive relief already ordered. We are concerned, and agree with Respondent, that many of these arguments are efforts to relitigate issues that were no longer disputed at trial by counsel for Appellant. To identify those arguments that have been properly brought before us, we frame the issues, explain the proper limitations upon our scope of review, and set forth applicable standards of review regarding each remaining contention.
INTRODUCTION: IDENTIFYING THE ISSUES, WAIVED OR NOT
In its statement of decision and judgment, the trial court chiefly based its conclusions on the documentary and testimonial evidence, including parol evidence, showing there was a view protection easement that ran with the land, precluding certain construction on the southern portion of Parcel 22. Although the preliminary injunction findings had also included references to covenants running with the land and/or equitable servitudes that protected the view from Respondent's property, the judgment is based on the stipulation of the parties, confirmed by the court, that the "easement" was binding on both of the relevant parcels.
Appellant nevertheless seeks to reopen its stipulated concession, that was confirmed by the court, about whether the land use restriction on Parcel 22 is an enforceable view protection easement. Appellant makes numerous arguments about how the trial court's findings should be overturned on that issue, either on a de novo documentary interpretation basis, or for a supposed lack of reasonableness or clarity, or for some lack of satisfaction of all relevant statutory criteria. (§ 1468, subds. (a), (b) [requiring descriptions of subject properties and binding nature of covenants].)
There are several problems with those arguments, beginning with the fact that they are contrary to Appellants' theory of trial. It is well accepted that "[w]here the parties try the case on the assumption that a cause of action is stated, that certain issues are raised by the pleadings, that a particular issue is controlling, or that other steps affecting the course of the trial are correct, neither party can change this theory for purposes of review on appeal." (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 407, p. 466.) Although Appellants may be allowed to raise new theories "when a question of law alone is presented on the facts appearing in the record, " that is not the case here. (Id. at § 415, pp. 473-474; italics added.) Only when " 'the facts with reference to the contention newly made on appeal appear to be undisputed and... no different showing could be made on a new trial it is deemed appropriate to entertain the contention as a question of law on the undisputed facts and pass on it accordingly.' [Citations.]" (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 856 (Seeley).)
This case was tried on the admitted basis that there was an enforceable view protection restriction, and the issue to be resolved by the court upon disputed evidence was the allowable definition and scope of such easement. Appellant cannot now return to square one or ground zero, to claim that as a matter of law, the restriction only applied to the original parties as a personal agreement that did not run with the property.
For example, Appellant tries to argue that Respondent failed to seek an amendment to conform to proof at trial, to convert her theories surrounding the agreed-upon restriction from contract based claims to real property claims. That assertion is not borne out by the record, since the trial court heard a motion to amend to conform to proof, and adequately allowed both sides the opportunity to clarify their existing theories and relief requests, before it heard closing argument. Also, the trial court properly rejected the argument by Appellant that the La Mattinos' 2002 quitclaim deed "was void ab initio for lack of capacity and the Aug. 11, 2003 grant deed to the Conns... is the only valid deed after the 1977 [grant] deed and did not contain the language stating the restriction runs with the land."
Moreover, the existence and binding nature of the view protection easement was the subject of numerous judicial admissions by trial counsel for Appellant. "[A] judicial admission may... be an allegation of a pleading or an attorney's concession or stipulation to facts. '[It] is not merely evidence of a fact; it is a conclusive concession of the truth of a matter which has the effect of removing it from the issues.' [Citation.]" (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 269.) It operates as "a waiver of proof of a fact by conceding its truth." (4 Witkin, Cal. Procedure, supra, Pleading, § 452, p. 585; Seeley, supra, 190 Cal.App.3d 844, 856.) The rationale is that the trial court should have had the opportunity to resolve a disputed issue, if challenges to its decision are to be raised on appeal. (Ibid.)
Appellant contends no binding judicial admissions existed here under the standards of Irwin v. Pacific Southwest Airlines (1982) 133 Cal.App.3d 709, 714.) To be binding on a party, the attorney's admission must relate to "a fact 'bearing on the issues involved' in the proceeding [citations]." (Ibid.) "Moreover, an admission is not binding if it is made improvidently or unguardedly, or if it is in any way ambiguous [citation]." (Ibid.) However, the admissions in the joint trial readiness report, and in opening and closing argument, that a view protection easement was created by the common grantors and the predecessors of Appellant, and would run with the land, are not too far afield of the central issues to be tried. Rather, Appellant should be held to the positions taken at trial, that only the scope of the enforceable restriction remained at issue, or that it could not be interpreted to overcome any uncertainty that may be present.
Under the above rules, we need not further address the general challenges newly or contradictorily argued by Appellant regarding any allegedly improper format of the restriction, such as a failure to include in it the legal descriptions of the two parcels, or for lack of more specific statements of its binding nature, or for alleged latent ambiguities. Likewise, to the extent Appellant contends his due process rights were violated, in terms of unlawful taking of property, his claims fail. If he is trying to pursue against Respondent an inverse condemnation theory, this action is not the proper means of doing so, as there is no public entity named as a party here. The just compensation clause of California Constitution, article 1, "is primarily aimed at making a landowner whole for any governmental taking or damage to his or her property." (Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, 715.) There is no governmental taking adequately alleged against this Respondent. Also, Appellant could not prove irreparable injury as a defense. (See Fairrington v. Dyke Water Co. (1958) 50 Cal.2d 198, 200 [comparing unjustified injunctive order with a taking by eminent domain].)
Finally, with reference to the partial stipulation previously submitted to this court, solely to abandon the appeal regarding the preliminary injunction ruling, we issued an order that it would be considered by the panel deciding the merits, since it was not appropriate to accept such a stipulation limiting the issues on appeal, before the case was ready for decision. In any case, the same substantive issues about the balancing of hardship and any abuse of discretion are raised with regard to the permanent injunction, which Appellant continues to challenge. We will address those remaining issues in part III, post, regarding the relief awarded by the trial court.
Our approach to the remaining issues on appeal, concerning the proper scope of the binding restriction and the related spite fence claims, follows these accepted principles. The judgment of the trial court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) All intendments and presumptions are made to support the judgment on matters as to which the record is silent. (Ibid.) An appellant has the burden to provide an adequate record and affirmatively to show reversible error or abuse of discretion. (Ibid.; Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) If the judgment is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning. (Estate of Beard (1999) 71 Cal.App.4th 753, 776-777; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.) We turn to the substantive challenges made to the trial court's interpretation of the scope and effect of this restriction.
SCOPE OF RESTRICTION
A. Standards for Review
"Where [a] statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision." (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.) It is not required that a statement of decision address all the legal and factual issues raised by the parties, but rather it should state simply the grounds upon which the judgment rests, without specifying all the particular evidence considered by the trial court in reaching its decision. (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124-1125 (Muzquiz).)
This statement of decision was issued after the trial court heard conflicting testimony about how the restriction could be interpreted and applied to Appellant's property, in light of some ambiguities in its language. Specifically, the trial court heard testimony from the parties and a prior owner of Parcel 22, Mr. La Mattino, on contractual intent, and it also took testimony from various professionals in the fields of engineering and surveying, about their interpretations of the language of the restriction. At the request of Appellant, the court took judicial notice of the definition of "structure, " pursuant to San Diego County zoning ordinances, as follows: "That which is built or constructed, an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner."
The court essentially followed these established procedures: "The decision whether to admit parol [i.e., extrinsic] evidence involves a two-step process. First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties' intentions to determine 'ambiguity, ' i.e., whether the language is 'reasonably susceptible' to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is 'reasonably susceptible' to the interpretation urged, the extrinsic evidence is then admitted to aid in the second step--interpreting the contract." (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165 (Winet); Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37.)
On appeal, a "trial court's ruling on the threshold determination of 'ambiguity' (i.e., whether the proffered evidence is relevant to prove a meaning to which the language is reasonably susceptible) is a question of law, not of fact. [Citation.] Thus[, ] the threshold determination of ambiguity is subject to independent review." (Winet, supra, 4 Cal.App.4th at p. 1165.) After discussing the issues of law regarding the clarity or ambiguity of this restrictive language (in pt. II.B, post), we will address Appellant's initial challenge to any use of the parol evidence approach, in this factual context involving real property (Pt. II.C, post).
If it is necessary to proceed beyond the de novo phase of the parol evidence analysis, an appellate court will address the substance of the extrinsic evidence under the following standards, and this record requires us to do so (in Pt. III, post). Extrinsic evidence is not properly admitted to prove any meaning that "flatly contradict[s] the express terms of the agreement [restriction]." (Winet, supra, 4 Cal.App.4that p. 1167; see also § 1638 ["The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity"].) However, once the contract language is deemed to be ambiguous, and once conflicting extrinsic evidence is admitted on the meaning of that language, on appeal, "any reasonable construction will be upheld as long as it is supported by substantial evidence." (Winet, supra, at p. 1166.)
B. Issue of Law Regarding Any Ambiguity of the Restriction
We first address the threshold determination of "ambiguity" as a question of law, as to the language of the restriction. (Winet, supra, 4 Cal.App.4th at p. 1165.) We consider principles of both contract and real estate law, to give recognized meanings to the language of the restriction. (Ticor Title Ins. Co. v. Rancho Santa Fe Assn. (1986) 177 Cal.App.3d 726, 730.) We seek to effectuate the intent of all of the involved parties as it existed at the time of contracting, so far as that is ascertainable and lawful. (§ 1639.)
The subject restriction appears in the recorded deed to the La Mattinos' trust: "Any structure built on subject property cannot protrude further than the south line of the existing structure located at 2037 Wonder View Drive." Considering the credible evidence about all the parties' intentions, at least the following italicized language should reasonably be characterized as ambiguous, i.e., as disputed issues that required trial: "Any structure built on subject property cannot protrude further than the south line of the existing structure [on Respondent's property]." Those portions of the restriction are "reasonably susceptible" to conflicting interpretations; i.e., first, whether the restriction permits "any structure" built upon Appellant's property to rise above ground level (vertical protrusion), under the zoning definition (something "built or constructed, " or "artificially built up or composed of parts joined together in some definite manner"). Second, interpretation is required about where the line should be drawn and from which points, along the south line of the Respondent's structure (horizontal protrusion). As a matter of law, the trial court was justified in determining there were ambiguities present, and we next turn to the substance of the parol evidence offered, to construe the language of the restriction and to determine its binding effect on successive owners.
C. Admissibility of Parol Evidence
Although we could logically decline to address the exact legal foundation for this restriction, based on the concessions and judicial admissions made at trial by Appellant that there is a binding recorded restriction running with the land (see pt. I, ante), we think it is nevertheless appropriate to address his major contention that some kind of de novo ruling would be justified in this appeal, to impose findings that this recorded restriction may not apply to his property, because his deed does not repeat it. He argues that the parol evidence introduced at trial should not have been allowed, over his objection, and it was ineffective to prove the apparent intent of the common grantors and Appellant's predecessor in title, regarding the scope of any enforceable view protections for the existing structure located on the grantors'/Mathers' uphill property.
To support his claim, Appellant relies on Riley v. Bear Creek Planning Committee (1976) 17 Cal.3d 500, 508-512 (Riley), for the concept that this restriction is not binding upon him because it does not expressly appear in his deed. However, the concerns expressed in that case, about lack of notice to affected landowners, (the Rileys, who were opposing the enforcement of covenant restrictions created later than they acquired their property), do not apply here. (Ibid.) Instead, this Appellant took the property with full knowledge of the recorded restriction, and from 2005, he made some efforts to work with the professional engineer and architect to implement the restriction within his plans for the structure. (See Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 367 (Citizens for Covenant Compliance); 12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 448, pp. 521-522.)
In any case, the California Supreme Court in Citizens for Covenant Compliance, supra, 12 Cal.4th 345, has impliedly disapproved the strict approach in Riley, supra, 17 Cal.3d 500, 508-512 (i.e., that restricted the use of parol evidence to enforce certain restrictions on property, such as equitable servitudes or recorded covenants running with the land). (Citizens for Covenant Compliance, supra, at p. 366.) In the latter case, the Supreme Court determined that it was reasonable for property purchasers to be bound by "previously recorded covenants, conditions, and restrictions (CC&Rs), even if they are not mentioned in the deed or another document at the time of sale, " and the same rule applies to equitable servitudes or other covenants that run with the land. (12 Witkin, Summary of Cal. Law, supra, Real Property, § 449, p. 523.)
See section 1213, reading in relevant part: "Every conveyance of real property or an estate for years therein acknowledged or proved and certified and recorded as prescribed by law from the time it is filed with the recorder for record is constructive notice of the contents thereof to subsequent purchasers and mortgagees...."
Thus, in Citizens for Covenant Compliance, supra, 12 Cal.4th 345, the court distinguished the authority of Riley, supra, 17 Cal.3d 500, 511, because Riley did not involve any previously recorded documents giving notice of applicable restrictions, and "[t]he only documents in existence from which the mutual intent and agreement of the parties could be discerned were the deeds themselves, which were silent." (Citizens for Covenant Compliance, supra, at p. 359.) Now, where a purchaser of property takes it with knowledge of certain recorded restrictions, those restrictions may be deemed to be binding, even if the deed does not repeat them. (Id. at p. 367.)
The above authorities are most relevant to cases involving covenants running with the land or equitable servitudes, which are not squarely before us. In any case, these facts are unlike those in Riley, supra, 17 Cal.3d 500, in which certain property owners and developers took impermissible, unilateral actions that should not be allowed to prejudice an owner already in place. (Id. at p. 511; Citizens for Covenant Compliance, supra, 12 Cal.4th 345, 367.) In the case before us, the trial court's approach was within the accepted rules for interpreting an existing instrument conveying an easement, where there is some uncertainty or ambiguity in its terms. In such cases, "the court can examine the surrounding circumstances and the relationship between the parties and their respective properties. If the face of the document is susceptible to more than one meaning, extrinsic evidence is admissible as an aid to interpretation when the offered evidence itself was relevant to prove a meaning to which the language of the instrument is reasonably susceptible, and it adopts the interpretation that more properly reflects the intention of the parties. When the instrument is susceptible to more than one meaning, extrinsic evidence is admissible as an aid to interpretation as long as the evidence does not give an unreasonable meaning to the instrument." (6 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 15:16, pp. 15-69 to 15-70; fns. omitted.)
For all of the above reasons, the trial court was justified in admitting evidence other than the 1977 Grant Deed or the current deeds, for the purpose of determining the intent of the parties, including the Grantors and the predecessors of Appellant, about the scope of any ongoing view protection easement.
ANALYSIS OF MERITS; CRITERIA FOR ENFORCEABILITY; SUBSTANCE OF EXTRINSIC EVIDENCE
Since the language of the restriction can reasonably be evaluated as ambiguous in part, and since the trial court allowed conflicting extrinsic evidence to be submitted on the meaning of that language, our task on appeal is to determine whether the trial court's construction of the restrictive language was reasonable, and whether it is supported by substantial evidence. (Winet, supra, 4 Cal.App.4th at p. 1166.) In cases in which the resolution of factual disputes is dispositive of the case, appellate courts require substantial "evidence of 'ponderable legal significance, ... reasonable in nature, credible, and of solid value.' " (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873, italics omitted.) We look at the entire record on appeal rather than simply considering the evidence cited by a party. (Ibid.; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
If the evidence is not in conflict, but conflicting inferences could reasonably be drawn to resolve the issues presented, an appellate court is bound to respect the conclusions of the trial judge (or jury). (9 Witkin, Cal. Procedure, supra, Appeal, § 376, p. 434; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632-633.) We view such evidence in the light most favorable to the support of the judgment. (Ibid.)
Before applying these standards to evaluate the reasonableness and support for the trial court's construction of the two provisions particularly at issue, we first outline the legal criteria to which that extrinsic evidence was addressed, for purposes of determining the scope and effect of the view protection easement. We will then examine the scope of the injunctive relief that was awarded based upon that construction.
A. Validity of Restriction
The trial court correctly confirmed the position taken by both counsel about the existing nature of a binding view protection easement. As explained by respected commentators: "Generally, an easement can be created by an express or implied grant or reservation, or by prescription, but it can only be created by a person who has a vested estate in the servient tenement. In California, easements for light and air ordinarily can be created only by an express grant or reservation, by an agreement between property owners, or by the creation of an equitable servitude by appropriate covenants and restrictions." (6 Miller & Starr, Cal. Real Estate, supra, § 15:10, pp. 15-36 to 15-37; fns. omitted.)
The common grantors had the required vested estate in the servient tenement, when establishing the restriction. (§ 804; 6 Miller & Starr, Cal. Real Estate, supra, § 15:10, pp. 15-36 to 15-37.)
"In some cases, an inadequate attempt to establish a restriction may still be enforced as an easement. For example, one of the requirements for a restriction to be enforced against a third party is that it benefit the property of the covenantee. When the covenant fails to mention the property benefited, the restriction is unenforceable. However, because a dominant tenement need not be described in the instrument creating an easement, the attempted restriction may still be enforced as an easement, " or as an express negative easement. (6 Miller & Starr, Cal. Real Estate, supra, § 15:3, pp. 15-16 to 15-17; fns. omitted.) These may include easements for light and air, giving a "property owner the right to the unobstructed passage of light and air across the land of a neighbor and, in appropriate circumstances, also includes the right to retain an unobstructed view." (Id. at § 15:10, pp. 15-36 to 15-37, fns. omitted, citing, e.g., Bryan v. Grosse (1909) 155 Cal. 132, 136.)
We are mindful that Appellant relies on additional statements found in this treatise, that "[a]n easement for light and air may prevent the development of the neighboring servient tenement, and is therefore not favored by the law. As a general rule, a landowner has no natural right to air, light, or an unobstructed view." (6 Miller & Starr, Cal. Real Estate, supra, § 15:10, pp. 15-37 to 15-38; fns. omitted.) However, where there is an express agreement between grantor and grantee, which is recorded and of which there is admitted notice to a successor owner, such a disfavored status does not come into play. (Id. at § 15:10, p. 15-40 to 15-41.)
B. Meaning: "Cannot protrude further than the south line of the existing structure"
At trial, the parties presented their own interpretations, and those of their surveyors and Appellant's architect, of the restrictive language and how the south line should be drawn over Appellant's property. Respondent called Mr. La Mattino, a former owner of a portion of Appellant's property, to testify that Respondent's residence is in the same location as it was in 1977, when Mr. La Mattino bought the property, and at that time, some of the Grantors led him to understand that the purpose of the restriction was to protect the view from the house upon their remaining property.
Respondent's expert surveyor, Mr. Willess, researched building records and determined there had been no other structures built at 2037 Wonder View Drive. From the maps and plans, Mr. Willess identified the directional faces of Respondent's residence and drew a line that was extended to the area where it crossed Appellant's Parcel 22.
In 2009, Appellant's engineering firm, Pasco, prepared a drawing similar to that of Mr. Willess, with the same coordinates that identified the problematic south restricted area. Appellant's architect Belanger testified that Appellant told him about the 1977 Grant Deed restriction, and he created an indemnity provision referring to it and attached it to his contract with Appellant.
At trial, Appellant took the position that the restriction was too vague and indefinite to be enforced, with respect to how the line across his property could or should be drawn, and from what points of reference. He presented testimony from his expert land surveyor, Richard Turner, who read and explained the 1977 Grant Deed to Appellant and to the court. At trial, Mr. Turner was unwilling to explain from which structure or point from which to correctly originate and extend the line, as referenced in the restriction. Instead, he testified that he had discussed the matter with counsel for Appellant, and there were certain plot points or "possibilities" that Appellant's attorney asked him to use for drawing the line from the Mathers' house, in attempting to identify or locate the restricted area on Appellant's property.
In his cross-complaint, Appellant alleged that Pasco had "wrongfully placed the footprint of the architectural plans in violation of the alleged restriction and resulting in placement of the project on the property that renders it unbuildable." In his testimony, Appellant explained why he had written the October 29, 2008 letter to Pasco, complaining that the footprint in the planned house drawings extended into the restricted area, even though he claimed he had told Pasco about the restriction. In response to the letter, on November 3, 2008, Pasco advised Appellant that his architect was responsible, not Pasco, so Appellant should either "redesign the building to conform to the restriction, " "have the restriction modified, " or build at his own risk.
Appellant explained in his testimony that he had continually attempted to figure out what the restriction meant, and he kept trying to work things out with the elderly uphill owners, the Mathers. He claimed he did not knowingly encroach upon their property, since he was always unsure where the line should be drawn. (See Fairrington v. Dyke Water Co., supra, 50 Cal.2d 198, 200 [injunctive relief available to plaintiff upon a proper balancing of hardship, where defendant cannot show irreparable injury or unusual hardship].) Even with the knowledge he gained from his architect and engineer, Appellant began foundation and substantial framing work on the two-story structure in late 2008.
From all the evidence, the trial court had a substantial basis to conclude that the view protection easement was validly created between the Grantors and the predecessors of Appellant, and that Appellant was adequately, admittedly placed on notice of its existence, through recording or discussions with Conn, Pasco, and/or Belanger. The court could also reasonably conclude that the restriction was certain enough or capable of being made certain, since it made no difference that Respondent's house is angled on the uphill property, and the south line of that structure is readily identifiable, according to the interpretations given by Respondent's expert surveyor and other professional witnesses. Appellant did not challenge the qualifications of those witnesses, but merely disagreed with their conclusions, which is not enough to discredit the court's reliance upon them. Nor was the court required to accept the opinions from Appellant's surveyor.
Moreover, the trial court was justified in finding on this record that Appellant knowingly violated the deed restriction, by planning and proceeding with construction that "protrudes further than the south line" of Respondent's home, both vertically and horizontally (as next discussed). Appellant admitted as much when he sued Pasco for preparing the plans, alleging it should have been aware of a violation of the restriction. The court made a reasonable interpretation of the restriction in this respect, based upon substantial evidence.
C. Scope of Injunctive Relief Awarded Regarding "Any Structure" Built on Subject Property
1. Applicable Standards; Contentions
Although Appellant no longer specifically challenges the preliminary injunction order, he continues to argue the permanent injunction was an abuse of the court's discretion. In either case, we examine whether the injunctive order represents an abuse of discretion, based on the trial court's conclusions about which party should prevail on the merits at trial, and the respective harm that each party would suffer if the injunction were issued, based on a balancing of interests. (See People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.) As with an order granting a preliminary injunction, the appellate court will "view the facts favorably to the prevailing party, resolving all conflicts in its favor and drawing all inferences which can reasonably be made in support of the trial court's order." (People v. James (1981) 122 Cal.App.3d 25, 28-29.)
Proven interference with an easement for light, air or view, that was validly created by an express grant, is grounds for an injunction. (Petersen v. Friedman, supra, 162 Cal.App.2d 245, 247-248.) "The question of granting or refusing an injunction is addressed to the sound discretion of the lower court and its action will not be reversed on appeal unless there appears to be an abuse of discretion." (Ibid.)
At the preliminary injunction stage of the proceedings, the court expressly found unmeritorious the argument by Appellant that his construction activities did not change the status quo, which the court discussed as follows: "According to Defendant, just because there was no home on the land before 'is not a reason one should not be built.' However, that is not the issue. The question is whether or not an injunction will maintain the status quo ante, which Defendant admits was that there was no structure. Thus, halting construction will, as far as is possible, maintain the condition of parcel 22 as it was prior to initiation of this lawsuit." (Italics added.) The court properly preserved the status quo pending trial.
After trial, the statement of decision and judgment concluded that the evidence does not support Appellant's claims that his construction work did not encroach on the restricted area, nor did it support his own illogical interpretation of the restriction. His cross-complaint was properly found to be without merit. On appeal, Appellant continues to argue that the terms of the judgment, requiring the restricted area property to be returned "to its pre-construction condition, " actually exceed the allowable scope of relief authorized by the findings in the court's statement of decision, which is incorporated into the judgment, and that he sufficiently objected to the format of the judgment. The relevant language in the statement of decision is:
"Based upon the evidence cited above and all of the other evidence received at trial, the Court finds for the Plaintiff on her verified complaint, filed April 24, 2009. Specifically, on causes of action one through four, the Court rules that the Grant Deed restriction is located as determined and described by Mr. Willess. The Court further rules that Defendant is enjoined from doing any further work on that portion of the residential structure in the restricted area and Defendant is to remove the encroaching structure(s)."
The judgment goes on to additionally require Appellant to return his property "to its pre-construction condition." According to the zoning ordinance definitions, a "structure" is something built or constructed, "or any piece of work artificially built up or composed of parts joined together in some definite manner." As next discussed, the "pre-construction condition" provision in the judgment is arguably inconsistent with other findings in the statement of decision, in light of closing argument, even though the status quo preserved by the preliminary injunction was that there was "no structure."
2. Respondent's Concessions at Trial Regarding Existing "Structures" in Restricted Area
Although most of the discussion of the meaning of the term "structure" at trial dealt with Respondent's house, in closing argument, the parties also discussed with the court the scope of the injunctive relief properly to be issued regarding the restricted area improvements. Counsel for Respondent said that his clients would reasonably interpret the restriction as allowing some of the low structural improvements ("structures") that Appellant had already made, such as a three-foot retaining wall and a driveway or patio, to stay in place. This record therefore reflects a possibility that an existing driveway, retaining wall, and/or patio in the restricted zone might not interfere with Respondent's protected field of view, as admitted by counsel for Respondent, although she continued to seek to have the portions of the residence that protruded over the line to be removed, particularly the framing.
We emphasize that on appeal, Appellant has no basis to continue to argue that somehow, the subject restriction line should have been drawn only in accordance with some particular view toward the horizon level, such as when he requests us to allow his framed first story "structure" to remain, based upon the supposed angle of view from Respondent's property. Instead, our role on appeal is only to evaluate whether the judgment comports with the evidence, and it appears that the trial court validly accepted the concept of a "no-build" zone south of the restriction line, above ground.
Clearly, according to the photographs in the record, and as found by the court, the first and second floor framing erected by Appellant within the restricted zone amounts to "structures" interfering with the view from above. This is inconsistent with the "no build" zone interpretation pursued at trial by Respondent, and accepted by the trial court. However, that is not necessarily the same as "no retaining walls, " etc., as conceded by Respondent's counsel. We believe that one sentence in paragraph 6 of the judgment, requiring the restricted area property to be returned "to its pre-construction condition, " is inconsistent with or exceeds the allowable scope of relief authorized by the parties' theories of trial, and exceeds the findings in the court's statement of decision as incorporated into the judgment, insofar as Appellant's identified low structural improvements are concerned.
We will accordingly affirm the judgment as modified, to require the trial court to strike the subject "pre-construction condition" language, and to issue an amended judgment that retains all other provisions and also accurately sets forth the allowable scope and exact nature of any low structural improvements permitted in the defined restricted area, to be consistent with the findings in the court's statement of decision and the concessions made by trial counsel for Respondent.
With the one exception reflected in the above modification order, we are satisfied that the trial court comprehensively analyzed all the relevant issues in connection with interpreting the restriction and issuing appropriate injunctive and declaratory relief. The court reached correct conclusions and did not abuse its discretion nor prejudicially misapply the law in rendering these rulings, and Respondent remains the prevailing party in all respects, including costs.
SUPPORT FOR SPITE FENCE FINDINGS; RELATED APPEAL ON COSTS AWARD
In regard to Respondent's claim that the bamboo plants that Appellant installed and cultivated directly in front of her picture windows constituted a nuisance, the court made findings "that the motivation of such plantings was to annoy Plaintiff and constitute a 'spite fence' pursuant to Civil Code section 841.4." The court enjoined the maintenance of the subject bamboo plants and ordered them removed forthwith. However, no damages were awarded on this or other theories. Appellant challenges this finding, apparently on the basis that he does not believe that his actions in planting this type of vegetation amount to malice.
In Wilson v. Handley (2002) 97 Cal.App.4th 1301, 1309 (Wilson), the court analyzed relevant authorities and determined that in some cases, a row of trees along a boundary line can qualify as a "structure in the nature of a fence, " for purposes of applying the "spite fence" language of section 841.4. In determining whether the "malice" element of section 841.4 has been satisfied in a given case, the court stated that a "dominant purpose" test should be adopted. (Id. at pp. 1312-1313.) That is, to support a finding of liability under the statute, the defendants' dominant purpose or intent in planting the row of trees along the property line must be found to be pursuing a primary goal of annoying their neighbors. "This is a factual determination to be made by the trial court in the first instance based on the evidence received at trial." (Id. at p.1313.)
Under section 841.4, "[a]ny fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in [§§ 3501-3503; private nuisance remedies]."
It is interesting to note that Respondent testified that she observed the bamboo was planted only in front of her two picture windows, not in front of the opaque portion of the Respondent's structure between the two windows. She also stated her belief that the value of her property had been reduced, in light of the obscured view. Evidence in the form of photographs in the record showed there was significant interference with the views from the picture windows because of the bamboo.
Appellant seems to argue that such a stand or curtain of bamboo is not necessarily as opaque as other types of tree plantings that have been found to amount to spite fences. (See Wilson, supra, 97 Cal.App.4th 1301 [evergreens].) He also claims that his bamboo plants were properly trimmed to about five feet, at some point after Respondent's objections had been made (and they now have been removed and stored). He essentially claims the injunctive order is overbroad, and that only a "scorched earth" yard is now possible.
Of course, Appellant has the burden of providing an adequate record and of showing that error occurred at trial, and that it was prejudicial. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Absent an adequate record to demonstrate error, a reviewing court presumes the judgment is supported by the evidence. (In re Angel L. (2008) 159 Cal.App.4th 1127, 1136-1137.)
Along those lines, the trial court did not have to accept Appellant's version of his subjective motivation in planting the bamboo along the boundary line, directly in front of the picture windows, and the court could evaluate his testimony in context of all the other relevant evidence, and could find some injury to Respondent, although no damages were proven. (§ 841.4.) "Whether a determination is proper in an action for declaratory relief is a matter within the trial court's discretion and the court's decision to grant or deny relief will not be disturbed on appeal unless it is clearly shown its discretion was abused." (Dolan-King v. Rancho Santa Fee Assn. (2000) 81 Cal.App.4th 965, 974.) Likewise, the trial court could draw inferences from the presented evidence that the statutory criteria under section 841.4 were met. Under the standards set forth above, Appellant has failed to show why these findings are not supported by the record as a whole. Rather, the injunctive or declaratory relief awarded in favor of Respondent is supported by implied findings in the statement of decision that this set of bamboo plantings qualified as a spite fence and caused the intended harm to Respondent, through annoyance at least. (In re Marriage of Hoffmeister, supra, 191 Cal.App.3d 351, 358.) The judgment for Respondent in this respect is supported by substantial evidence, and she remains the prevailing party for purposes of the costs award.
We affirm the judgment as modified, with directions to the trial court (1) to strike a single sentence in paragraph 6 of the judgment that requires the restricted area property to be returned "to its pre-construction condition, " and (2) to issue an amended judgment that differs in that sole respect, retaining all other provisions, and accurately setting forth the allowable scope and exact nature of any low structural improvements permitted in the defined restricted area, to be consistent with the findings in the court's statement of decision and the concessions made by trial counsel for Respondent. Respondent is deemed to be the prevailing party on all counts, and the trial court's costs award is likewise affirmed. Ordinary costs on appeal are awarded to Respondent.
WE CONCUR: McCONNELL, P. J., IRION, J.