BishopPlaza v. Eslamieh

Filed 11/21/08 Bishop Plaza v. Eslamieh CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Inyo County. Brian Lamb, Judge. Affirmed.

Hardy & Place and Thomas L. Hardy for Plaintiff and Appellant.

Law Offices of Frederick G. Wood and Frederick G. Wood for Defendants and Respondents.

I. INTRODUCTION

Plaintiff and appellant, Bishop Plaza, LLC (Bishop Plaza), appeals from judgment of dismissal following the trial courts order sustaining the demurrer of defendants and respondents, Mohammad and Elizabeth Eslamieh, without leave to amend in Bishop Plazas action for breach of easements, quiet title, private nuisance, and declaratory relief. Bishop Plaza contends (1) the trial court erred in concluding that a provision of a declaration of easements with covenants and restrictions (EC&Rs) limited Bishop Plazas ability to enforce easements; (2) the trial court erred as a matter of law in holding that Bishop Plaza could not maintain an action for private nuisance; (3) a question of fact not reachable by demurrer exists as to whether circumstances have changed so as to modify any limitation on Bishop Plazas right to enforce the EC&Rs; and (4) the trial court erred in ruling that Bishop Plaza could not join an action initiated by another party.

II. FACTS AND PROCEDURAL BACKGROUND

We set forth the facts consistent with the standard of review applicable to an appeal from judgment of dismissal following the trial courts sustaining of a demurrer without leave to amend. Thus, we accept as true the facts properly pleaded in the complaint. (See City of Dinuba v. County of Tulare(2007) 41 Cal.4th 859, 865.)

In the 1980s, a retail shopping center was developed near the City of Bishop. The development involved three parcels: Parcel I, Parcel II, and Parcel III. Parcel I was originally developed as a Safeway supermarket, and Parcel III was developed as a Pay Less drug store. W. Richard Maudsley owned Parcel II. The three original owners of the development entered into and recorded easements with covenants and restrictions affecting land (EC&Rs).

In the EC&Rs, the original developers granted easements related to the use of the common areas: Each party, as grantor, hereby grants to the other parties for the benefit of said other parties, their customers, invitees and employees, a nonexclusive easement for roadways, walkways, ingress and egress, the parking of motor vehicles and use of facilities installed for the comfort and convenience of customers, invitees and employees on the common areas of the grantors parcel. The easement grant provided that no barriers, walls, or fences were to be constructed or maintained on the common areas, defined to include all of the parcels except defined building areas.

Paragraph 9(b) of the EC&Rs (hereafter, paragraph 9(b)) provides, In the event of breach or threatened breach of this agreement, only all record owners of Parcel I as a group, or all record owners of Parcel II as a group, or all the record owners of Parcel III as a group, or Safeway so long as it has an interest as owner or tenant in Parcel I, or Developer so long as it has an interest in any part of Parcel II or Pay Less so long as it has an interest in any part of Parcel III shall be entitled to institute proceedings for full and adequate relief from the consequences of said breach. . . .

A portion of Parcel II was developed into retail stores and offices, and Maudsley transferred that portion of Parcel II to Bishop Plaza, which Maudsley owns and controls. Maudsley, who was a party to the original agreement, later sold the undeveloped portion of Parcel II to Mohammad and Elizabeth Eslamieh, and in doing so, Maudsley converted ownership of Parcel II from one owner to two.

In 2006, a lessee of the Eslamiehs planned to develop a portion of Parcel II. On October 3, 2006, W. Richard Maudsley filed a complaint against the Eslamiehs for breach of easements with covenants and restrictions affecting land, quiet title, private nuisance, and declaratory relief. On November 21, 2006, a first amended complaint was filed, adding Thrifty Payless, Inc. (Thrifty) as an additional plaintiff.

Defendants demurred to all causes of action in the first amended complaint on the ground, among others, that plaintiffs lacked standing to sue. The trial court sustained the demurrer but granted 30 days leave to amend.

On March 21, 2007, a second amended complaint (SAC) was filed. In the SAC, Bishop Plaza replaced Maudsley as a plaintiff.

Bishop Plaza alleged that the new development violated the easements created by the EC&Rs, in that the planned structure would be located outside the allowable building area and not properly oriented on the parcel. Bishop Plaza further alleged the proposed development breached the architectural and aesthetic standards established by the EC&Rs.

Defendants demurred to all causes of action in the SAC on the ground, among others, that plaintiffs lacked standing. The trial court sustained the demurrer without leave to amend as to Bishop Plaza, but overruled the demurrer as to Thrifty. Judgment of dismissal was entered as to Bishop Plaza.

The trial court ruled as a matter of law that paragraph 9(b) substantively restricted the parties who are allowed to prosecute an action to enforce the EC&Rs. The court concluded that the document requires that if a person or entity is bringing suit on the basis of his interest in Parcel II as defined, it must be joined or authorized by all owners of that parcel. The trial court further stated, [N]o grounds appear in law that would permit the court to avoid the enforcement restriction . . . .

III. DISCUSSION

A. Standard of Review

When the trial court sustains a demurrer without leave to amend, on appeal, [w]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse. [Citation.] (City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865.) On demurrer, a pleading must be liberally construed. (Code Civ. Proc., 452.)

The generally applicable rule of contractual construction on demurrer is that [w]here a written contract is pleaded by attachment to and incorporation in a complaint, and where the complaint fails to allege that the terms of the contract have any special meaning, a court will construe the language of the contract on its face to determine whether, as a matter of law, the contract is reasonably subject to a construction sufficient to sustain a cause of action . . . . (Hillsman v. Sutter Community Hospitals (1984) 153 Cal.App.3d 743, 749-750.)

B. BishopPlazas Standing to Enforce Easements

The trial court found that the breach provisions of paragraph 9(b) applied to the enforcement of the easements and therefore held that the easements could be enforced only if all owners of Parcel II joined together to do so. Bishop Plaza contends the complaint, on its face, stated legally sufficient causes of action, and the trial court erred in making a substantive determination of a legal issue at the pleading stage.

A complaint fails to state a cause of action if it shows on its face that the cause of action alleged is in someone other than the plaintiff. Standing to sue goes to the existence of a cause of action; that is, whether a plaintiff . . . has a right to relief in court. [Citations.] A demurrer can be used to challenge standing. [Citation.] (SacramentoCountyFire Protection. Dist. v. SacramentoCounty Assessment Appeals Bd. (1999) 75 Cal.App.4th 327, 331.)

Here, the trial courts ruling on the demurrer was based on its interpretation of the contract attached to the pleading. In our independent review of the language of paragraph 9(b), we reach the same conclusion. The trial court properly interpreted paragraph 9(b) to conclude that Bishop Plaza lacked standing.

Bishop Plaza argues, however, that although the easements, covenants, and restrictions contained within the EC&Rs are all incorporated into the same document, the easements should be separately enforceable under the principles set forth in Civil Code sections 801 through 816, and the easements should not be subject to the restrictions of Paragraph 9(b). Bishop Plaza argues that Posey v. Leavitt (1991) 229 Cal.App.3d 1236 (Posey), and Soman Properties, Inc. v. Rikuo Corp. (1994) 24 Cal.App.4th 471 (Soman), disapproved on another ground in Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 355, suggest that easements and covenants within the same instrument may be enforced separately. While that position may be true under the circumstances of Posey and Soman and the particular documents being construed in those cases, we find nothing in those cases that establishes a generally applicable rule. Rather, in the present case, the enforceability of the easements, covenants, and restrictions was governed specifically by paragraph 9(b). Moreover, neither Posey nor Soman involved the interpretation of a contractual restriction on a partys right to initiate an action to enforce easements, covenants, or restrictions.

Bishop Plaza further contends, in effect, that paragraph 9(b) is ambiguous, because the parties have taken opposing positions as to its meaning, and thus, the trial court erred in ruling as a matter of law that Bishop Plaza had no standing to maintain the lawsuit. We construe the language of the contract on its face, and we independently determine that the contact is not reasonably susceptible to the meaning Bishop Plaza attributes to it. (See Hillsman v. Sutter Community Hospitals, supra, 153 Cal.App.3d at pp. 749-750.)

Bishop Plaza next asserts that because the EC&Rs separately created both easements and covenants, once the agreement was executed, the easements were fully created and could not be breached. Whether one describes the challenged activity as a breach, interference, noncompliance with, or violation of an easement is immaterial.^[1] Paragraph 9(b) limits the right to institute proceedings to enforce the easements.

C. BishopPlazas Right to Maintain Action for Private Nuisance

Bishop Plaza contends the trial court erred as a matter of law in holding that Bishop Plaza could not maintain an action for private nuisance.

A private nuisance is one in which a persons unreasonable, unwarrantable, or unlawful use of his or her own property interferes with the rights of others. A private nuisance is also any unwarranted activity that causes substantial injury to the property of another or obstructs its reasonable use and enjoyment. (Hutcherson v. Alexander (1968) 264 Cal.App.2d 126, 130.)

In the SAC, Bishop Plazas second cause of action for private nuisance alleged that defendants, by locating a substantial portion of a building outside of the building area and in the common areas, in violation of the easements granted to Plaintiffs, are creating a condition that substantially obstructs the free passage, use and comfortable enjoyment of said Common Areas and the Plaintiffs own real property . . . .

Thus, despite the caption, the cause of action alleged was merely for violation of the easements. The trial court did not err in sustaining the demurrer to the cause of action for private nuisance.

D. Change of Circumstances

In sustaining the demurrer to the SAC, the trial court stated, A situation that is directly contemplated and specifically addressed in the EC&Rs cannot be considered a material change in circumstances permitting the court to disregard the instruments enforcement restrictions. Bishop Plaza contends a question of fact not reachable by demurrer exists as to whether circumstances have changed so as to modify any limitation on Bishop Plazas right to enforce the EC&Rs. If [t]he original purpose of the restrictions is rendered obsolete if continued enforcement of the restrictions would be of no substantial benefit to the remaining properties in the tract, [t]he doctrine of changed conditions operates to prevent the perpetuation of inequitable and oppressive restrictions on land use and development that would merely harass or injure one party without benefiting the other. (Miller & Starr, California Real Estate (3d ed. 2001) Covenants and Restrictions,  24:20, fns. omitted.)

Bishop Plaza did not allege changed circumstances in the SAC. [T]he plaintiff . . . bear[s] the burden of proving there is a reasonable possibility the defect in the pleading can be cured by amendment. [Citation.] . . . Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. . . . (Everett v. State Farm General Ins. Co. (2008) 162 Cal.App.4th 649, 655-656.) Although, on appeal, Bishop Plaza contends it should be allowed to present facts to justify the application of the doctrine, Bishop Plaza has not identified any such facts that would justify giving Bishop Plaza another opportunity to amend its pleadings.

E. BishopPlazas Right to Join an Action Initiated by Another Party

The trial court ruled that as a matter of construction, . . . a person or entity who cannot institute the action to enforce the EC&Rs also cannot join or prosecute such an action as a party plaintiff. Bishop Plaza contends the trial court erred in ruling that Bishop Plaza could not join an action initiated by another party.

Bishop Plaza is the successor to Maudsley, who initiated the action; Thrifty joined the proceedings when the first amended complaint was filed. Bishop Plazas argument that it should be allowed to join Thriftys action ignores the fact that the action was initiated by Bishop Plazas predecessor in interest. Accepting Bishop Plazas argument would require ignoring the plain language of paragraph 9(b).

IV. DISPOSITION

The judgment is affirmed. Costs shall be awarded to respondents.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

GAUT

J.

KING

J.

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^[1] We note, however, that Bishop Plaza has captioned its first cause of action in the SAC as being for Breach of Easements with Covenants and Restrictions.