Filed 7/16/26 Razo v. Andersson CA4/3
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ALEXANDER RAZO et al.,
Plaintiffs and Respondents, G063747
v. (Super. Ct. No. 30-2020-01158055)
MELISSA ANDERSSON, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Craig L. Griffin, Judge. Reversed. Appellant’s request for judicial notice
denied. Respondents’ motion to strike denied.
Horvitz & Levy, Frederic D. Cohen, Jason R. Litt; Carney Mehr
and Kendra L. Carney Mehr for Defendant and Appellant.
Plante Huguenin Lebovic Kahn, Brian C. Plante and Gregory M.
Golino for Plaintiffs and Respondents.
* * *
This is a dispute between homeowners, Melissa Andersson on the
one hand, and Alexander and Danielle Razo (the Razos) on the other, who
live in adjoining units and who are the only two members of a homeowners
association (the Association). Andersson wanted to make extensive changes
to her patio and unit, some of which would have required changes to the
Razos’ walkway. The Razos were not agreeable, but Andersson proceeded
anyway. The Razos filed the instant action claiming Andersson’s changes
violated the Association’s Covenants, Conditions, and Restrictions (CC&Rs).
The CC&Rs prohibited an owner from making changes to the “exterior
appearance” of their home without Association approval. However, the
CC&Rs allowed an owner to unilaterally make changes to certain areas,
including a patio. The trial court expansively interpreted the “exterior
appearance” language to include all of Andersson’s changes—including
modifications within her patio—and, thus, it entered judgment in favor of the
Razos.
We conclude the trial court erred, in part. Andersson could make
changes to her exclusive use common area, which included her patio, but
could not make changes to the Razos’ walkway, changes that affected the
structural integrity of any portion of the property, or changes to the exterior
surface of her unit. We therefore reverse the judgment and remand for the
trial court to enter a new and different judgment consistent with this opinion.
FACTS
The CC&Rs were recorded in 2001. Their recital stated their
purpose was to “enforc[e], protect[] and preserv[e] the value, desirability and
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attractiveness of the Project.” The CC&Rs defined the “‘Project’” as a
“‘Condominium Project,’” and the “‘Property’” as a “‘Common Interest
Development.’” The “‘Property’” included the real property (Property) upon
which the Razos’ and Andersson’s “Units” were situated. The CC&Rs defined
a “‘Unit’” by reference to former Civil Code section 1351, subdivision (f). That
section defined a “Unit” as a “separate interest in space . . . the boundaries of
which are described on a recorded final map.” (Former Civ. Code, § 1351,
subd. (f), amended by Stats. 2000, ch. 26, § 1, and repealed by Stats. 2012,
ch. 180, § 1, eff. Jan. 1, 2014.) Their description may refer to “physical
boundaries, either in existence, or to be constructed, such as walls, floors, and
ceilings.” (Ibid.) On the recorded final map here, the boundaries of each Unit
were depicted by lines identified as “walls.” The Property also contained
“‘Common Area’” and “‘Exclusive Use Common Area(s).’” Everything on the
Property, other than a Unit, was Common Area. Exclusive Use Common Area
sat within Common Area, but was space designated for an owner’s exclusive
use, such as a patio.
The Property and Units were built in approximately 2002. The
Razos purchased their Unit in 2017. Andersson purchased her Unit in
January 2020. The Units and Property were located between a street and an
alley. Andersson’s Unit faced the street and a sidewalk, while the Razos had
the rear Unit. Andersson’s Unit included an outdoor patio which was visible
from the street and was designated her Exclusive Use Common Area.
A walkway began at the street’s sidewalk, meandered along the
left side of the Property, and ended at the entrance to the Razos’ Unit. A
separate walkway also started at the sidewalk but led to Andersson’s patio
and ultimately to her front door. Each walkway had its own gate. The
walkways were adjoined and separated by pilasters which were connected by
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a wrought iron fence. On the right of the wrought iron fencing was
Andersson’s patio and walkway; immediately to the left was a decorative
planter, and to the left of that was the Razos’ walkway. There were also three
pilasters, connected by wrought iron fencing, that ran across the front of the
Property, parallel to the sidewalk and street.
According to the recorded final map, Andersson’s Exclusive Use
Common Area was supposed to begin 50 inches from the left-side Property
line. However, as it was at the time Andersson purchased her Unit, the
Razos’ walkway, including the planter, pilasters, and wrought iron fencing,
reached 85 inches from the left-side Property line and, thus, encroached on
Andersson’s Exclusive Use Common Area.
A month after moving in, Andersson met with Eric Fenmore and
his company, DIG Landscape Construction, Inc., dba Garden Studio with the
hopes of remodeling her patio. She wanted to change the aesthetic from a
“traditional Mediterranean design” to a “clean coastal look.” In addition, as
part of the remodel, Andersson wanted a walkway that led right to her door.
To that end, Andersson’s plans called for (among other things) expanding her
patio to its originally delineated starting point 50 inches from the left-side
Property line. To make way for Andersson’s new walkway, she proposed to
remove (1) the planter in front of the right pilaster that flanked the Razos’s
gate, (2) a pilaster that adjoined that planter (and sat in front of the right
gate pilaster), and (3) the wrought iron fencing that ran along the right side
of the Razos’s walkway. Andersson proposed to replace that wrought iron
fence (and the removed pilaster) with a new wall that would form the
boundary of Andersson’s newly expanded patio. She ultimately left the
Razos’s gate (and the two pilasters supporting it on either side) as it was.
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In addition to this, Andersson wanted to remodel her patio to
remove an outdoor fireplace, install an outdoor firepit with seating, replace
doors and windows, change the stucco and paint on her Unit, install a
barbeque, change the planting and hardscape, and remove the three pilasters
and wrought iron fencing which ran across the front of the Property and
parallel to the sidewalk and street, amongst other things.
Andersson signed a contract with DIG whereby she agreed to
indemnify DIG from any claims, including attorney fees.
The Razos were not agreeable to any of Andersson’s proposed
changes. Notwithstanding, Andersson instructed DIG to commence work.
DIG ultimately made changes to Andersson’s patio, including installing a
fireplace, stonework, plants, and a bench. In addition, DIG installed a
barbecue on the right side of the Property by removing stucco on the exterior
of Andersson’s unit, installing the barbecue in place of the stucco, removing
the stucco around the new barbecue, and replacing that with a tile
backsplash. DIG altered the Razos’ walkway, removed the planter, and the
wrought iron fencing which ran adjacent to the planter including a pilaster
connected to the fencing, but did not remove the Razos’ gate or the pilasters
that flanked it. DIG also removed three pilasters that ran parallel to the
sidewalk and street in the front of the Property and replaced them with a low
wall with a low wooden fence in front of it. DIG also changed the color and
texture of the stucco around the windows and doors of Andersson’s Unit.
In August 2020, the Razos sued Andersson, DIG, and Fenmore
for breach of the CC&Rs, prescriptive and equitable easements, and
nuisance. DIG filed a cross-complaint against Andersson asserting causes of
action for breach of contract, contractual indemnification, and equitable
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indemnity. Prior to trial, DIG and the Razos settled, and DIG assigned its
claims to the Razos.
At the heart of the Razos’ complaint were two CC&Rs: section
2.04(d), which prohibited an owner from changing “the exterior appearance of
a Unit” without Association approval, and section 2.04(e), which allowed an
owner to unilaterally make “any improvement or alteration” to the owner’s
Exclusive Use Common Area, so long as it did not impair the structural
integrity or lessen support of any portion of the Property.
Andersson and the Razos proceeded to a court trial where they
each introduced experts who testified to the meaning of the CC&Rs at issue.
Andersson’s expert, an attorney specializing in homeowner associations,
testified that, based on his reading, the Association was not required to
approve changes to an owner’s Exclusive Use Common Area. He did not
believe section 2.04(d) had any application to the dispute between the Razos
and Andersson because, in his opinion, Andersson did not make changes to
her Unit’s “exterior appearance.”
The Razos’ expert, a real estate lawyer, interpreted the phrase
“exterior appearance,” to refer broadly to the exterior appearance of the
Property, including Exclusive Use Common Area, not just the Unit itself.
Thus, the CC&Rs barred Andersson’s changes to her patio, as well as the
Razos’ walkway, because they altered the Property’s exterior appearance.
The trial court agreed with the Razos’ expert and concluded that
because the “express purpose of the CC&Rs [was] to ‘protect[] and preserv[e]
the value, desirability and attractiveness of the [Property],’” then it would be
unreasonable to conclude that the drafter intended to give owners the power
to unilaterally change the appearance of their Exclusive Use Common Area
because such lack of uniformity within the Property would diminish its
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“value, desirability, and attractiveness . . . .” Because, the court continued,
“[s]ection 2.04(d) is the only provision expressly addressing [Association]
approval for exterior changes,” then it must be interpreted “expansively to
require [Association] approval for changes to any portion of the exterior of the
[Property].” As such, all of Andersson’s changes breached the CC&Rs.
Alternatively, the court ruled the Razos had an easement over
their walkway, including the pilasters, planter, and wrought iron fencing, all
on the left side of the Property. Section 10.04(a) of the CC&Rs stated that if,
when the Property was originally constructed, an improvement was placed in
such a way that it encroached on an owner’s Exclusive Use Common Area, an
easement was created over the encroaching area. The court found the Razos’
walkway, and the adjoining planter, pilasters, and wrought iron fencing were
part of the original construction.
Finally, the court ruled that Andersson was responsible for
defending and indemnifying DIG and Fenmore.
In February 2024, judgment was entered ordering Andersson, at
her expense, to undo the changes and to pay the Razos $762,822.24.
DISCUSSION
On appeal, Andersson argues the trial court erred in concluding
that “exterior appearance” included the changes made to the appearance of
her Exclusive Use Common Area. On this point, we agree. However, we
disagree with Andersson’s contentions that the Razos did not have an
easement over their encroaching walkway, and the adjoining planter,
pilasters, and wrought iron fencing, and that she is not responsible for
defending and indemnifying DIG.
Finally, we conclude the trial court correctly determined that
Andersson could not make changes to the exterior surface of her Unit without
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Association approval and that substantial evidence supports the conclusion
that Andersson’s removal of the three pilasters which ran across the front of
the Property, parallel to the sidewalk and street, impaired the structural
integrity of the Property.
I.
ANDERSSON COULD ALTER HER EXCLUSIVE USE COMMON AREA
We interpret CC&Rs in the same manner as any contract, “with a
view toward enforcing the reasonable intent of the parties.” (Harvey v. The
Landing Homeowners Assn. (2008) 162 Cal.App.4th 809, 817.) “The language
of the CC&R’s governs if it is clear and explicit, and we interpret the words in
their ordinary and popular sense unless a contrary intent is shown.” (Ibid.)
Such contrary intent may be shown by extrinsic evidence shedding light on
the “‘“facts, circumstances and conditions surrounding the execution of the
[CC&Rs].”’ [Citations.]” (Falkowski v. Imation Corp. (2005) 132 Cal.App.4th
499, 506.)
If the parties offered extrinsic evidence, and that evidence was
not in conflict, we review the CC&Rs de novo. (Hewlett-Packard Co. v. Oracle
Corp. (2021) 65 Cal.App.5th 506, 531.) If the extrinsic evidence was in conflict
and required credibility determinations by the trial court, we defer to the
trial court’s interpretation if substantial evidence supports it. (Id. at pp. 531–
532.)
The Razos argue the experts’ testimony constituted extrinsic
evidence and, thus, we are bound by the trial court’s reliance thereon if
substantial evidence supports it. But the experts did not testify to the facts,
circumstances, or conditions surrounding the execution of the CC&Rs. (See
e.g., Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1357 [evidence of
trade usage and custom at time of contract admissible].) Instead, the experts
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just presented their interpretations of the CC&Rs, a solely legal function.
This is not extrinsic evidence. (Gilkyson v. Disney Enterprises, Inc. (2021)
66 Cal.App.5th 900, 920–921 [experts testifying to their interpretation of
agreement is not extrinsic evidence].)
As such, the experts’ conflicting interpretations, whether relied
on by the trial court or not, are not binding on us, even if substantial evidence
supports one of the interpretations. Instead, we interpret the CC&Rs de novo.
Section 2.04(d) is not ambiguous. The Units are bound by their
walls. Walls have an interior and an exterior. “[E]xterior appearance” just
refers to the appearance of the Unit’s exterior walls. For example, an owner
could not paint the exterior walls a different color or change their texture, nor
could an owner install windows or add a balcony, without Association
approval.
Similarly, section 2.04(e) is not ambiguous. By its plain terms, it
permits an owner to alter their Exclusive Use Common Area without
Association approval if it does not affect structural integrity or lessen support
of the Property.
Additional support is found elsewhere in the CC&Rs.
Section 2.04(c), for example, requires an owner to “notify the Association of
any substantial improvements to the Unit and Exclusive Use Common
Area(s), if any, in consideration of any effect of such improvements on the
Association’s insurance policy.” Thus, per section 2.04(c), the CC&Rs
contemplate a scenario in which the owner of a Unit makes “substantial
improvements” to their Exclusive Use Common Area without the approval of
the other owner, i.e., without Association approval.
Moreover, section 2.05 provides that “the Association (not
individual Owners) is responsible for maintaining, repairing, modifying, and
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altering Common Areas (not including Exclusive Use Common Areas).” Thus,
the Association has no power to alter Exclusive Use Common Areas—that
domain lies with the owner.
The Razos disagree and urge us to focus on the CC&Rs’ recital
which explains that the purpose of the CC&Rs is to maintain the desirability
and attractiveness of the Units and Property. They believe section 2.04(e)
must be read in such a way that it limits an owner’s ability to change their
Exclusive Use Common Area if doing so would decrease the “value,
desirability and attractiveness” of the Property. Such an interpretation would
inevitably embroil the owners in endless disputes over minor changes.
In any event, recitals are not covenants. Nor can they affect
unambiguous covenants within the contract, such as 2.04(d) and (e).
(Carolina Beverage Corp. v. FIJI Water Co., LLC (2024) 102 Cal.App.5th 977,
990.) This is why we give recitals “‘limited effect[,] even as between the
parties.”’ (Sabetian v. Exxon Mobil Corp. (2020) 57 Cal.App.5th 1054, 1069.)
II.
REMOVING THE THREE PILASTERS WHICH RAN PARALLEL TO THE SIDEWALK
AND STREET IN THE FRONT OF THE PROPERTY IMPAIRED THE STRUCTURAL
INTEGRITY OF THE PROPERTY
Andersson argues the trial court erred in concluding that her
actions in removing the three pilasters which ran across the front of the
Property, and adjacent to the sidewalk and street, impaired the structural
integrity of the Property. We disagree.
Section 2.04(e) provides that an owner may “[m]ake any
improvement or alteration within the Unit and its Exclusive Use Common
Area (if any) that does not impair the structural integrity or mechanical
systems, or lessen the support of any portion of the Property.” The CC&Rs
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define “‘Property’” as the “real property described in Paragraph ‘A’ of the
Recitals to this Declaration.” Real property is defined as “1. Land; [and] [¶]
2. That which is affixed to land.” (Civ. Code, § 658.) When deciding if
something is affixed to the land, we consider three factors: (1) its physical
attachment to the land; (2) its adaptation so it may be used with the land;
and (3) any intention to attach it to the land. (Vieira Enterprises, Inc. v. City
of East Palo Alto (2012) 208 Cal.App.4th 584, 597 (Vieira Enterprises).)
The Razos called an expert who explained that pilasters are
constructed by digging a hole 12 inches below grade, placing rebar within the
hole, placing a concrete footing at the bottom of the hole, and then layering
the foundation with concrete masonry units or blocks. The resulting pilaster
is intended to be a permanent structure. The expert also testified that
wrought iron was connected to the pilasters at issue forming a fence. This
wrought iron fencing was bolted to posts which were placed and bolted into
the pilasters. The wrought iron fencing was also intended to be permanent
improvements.
The expert testified that removing the pilasters and attached
fencing would lessen the support of a portion of the Property because it would
remove the foundation for the pilasters which was the support for the
pilasters and wrought iron fencing.
There is substantial evidence in the record to support the
conclusion that the three pilasters were affixed to the land. The pilasters
were physically attached to the land as they were installed beneath the soil
with rebar, concrete footings, and concrete blocks. (Vieira Enterprises, supra,
208 Cal.App.4th at p. 599 [object attached to land when it is ‘“permanently
attached’ ‘by means of cement . . .’”].) Moreover, these pilasters and the
wrought iron served a purpose “for which the realty [was] used.” (Morse
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Signal Devices v. County of Los Angeles (1984) 161 Cal.App.3d 570, 578.)
They formed a fence and boundary for the Units and Property. Finally, the
evidence demonstrates that the pilasters were intended to be permanently
attached to the land.
Although the CC&Rs do not define “structural integrity,” the
term is generally understood as an object’s soundness or load-bearing ability.
(See e.g., Cabrini Villas Homeowners Assn. v. Haghverdian (2003)
111 Cal.App.4th 683, 694–695 [substantial evidence supported trial court’s
conclusion that installation of an air conditioning unit impaired structural
integrity of building because it would affect the building’s “lateral load
resisting system”; Stevenson v. San Francisco Housing Authority (1994)
24 Cal.App.4th 269, 279, fn. 6 [noting that federal regulations for public
housing which require such housing to not have any serious defects that
would cause the walls or floors to buckle or noticeably move are aimed at
“provid[ing] standards for the structural integrity of [public] housing”];
Health & Saf. Code, § 55000 [Legislature’s finding that many buildings do
not have the structural integrity to “safely withstand seismic forces”]; Educ.
Code, § 81133.5, subd. (a) [state “may issue a stop work order when
construction work on a community college . . . would compromise the
structural integrity of the building, thereby endangering the public safety”].)
Here, the sole expert on the topic opined that removal of the
pilasters substantially impaired their structural integrity, and the structural
integrity of the wrought iron fencing. As such, there was substantial evidence
to support the trial court’s conclusion that the pilasters were a part of the
Property, that their removal affected their structural integrity, and that
Andersson could not remove them without Association approval.
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III.
THE RAZOS HAD AN EASEMENT
The recorded final map depicted Andersson’s Exclusive Use
Common Area as starting 50 inches from the left-side Property line. However,
during construction of the Property, the builder installed a larger walkway to
the Razos’ Unit, by an additional 35 inches. This included the adjoining
pilasters, planter, and wrought iron fencing that encroached Andersson’s
originally delineated Exclusive Use Common Area.
Sections 10.04(a) and (b) state that if, during original
construction, an improvement is placed in such a way that it encroaches on
an owner’s Exclusive Use Common Area, an easement is created in favor of
the encroaching owner. Andersson argues substantial evidence does not
support the trial court’s conclusion that the encroaching walkway, pilasters,
planter, and fence were part of the Property’s original construction and, even
if they were, “the record does not support the conclusion that the entire
walkway was an easement that encroached on Andersson’s Exclusive Use
Common Area.” We disagree.
We review a trial court’s factual findings for substantial evidence,
a highly deferential standard. (Ridley v. Rancho Palma Grande Homeowners
Assn. (2025) 114 Cal.App.5th 788, 800.) We will not reweigh the evidence,
resolve evidentiary conflicts, or evaluate the credibility of witnesses. (Ibid.)
Instead, we review the record in the light most favorable to the trial court’s
factual findings, giving the trial court the benefit of every reasonable
inference. (Ibid.)
Prior to trial, the parties stipulated that the Property and the
Units were constructed in “approximately 2002.” The Razos presented a
photograph from 2003 which depicted the disputed area in a similar fashion
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to when they purchased their Unit in 2017. Although the picture is blurry
and subject to interpretation, the trial court concluded that it was consistent
with how the Razos’ walkway stood at the time of purchase; we take no issue
with that conclusion. In addition, there was evidence that the same style of
wrought iron fence was used throughout the Property, that the pilasters had
the same stucco finish as the Units, and that the age and look of all the
improvements in the encroaching area were consistent with the rest of the
Property. This constitutes circumstantial evidence that the encroaching
improvements were part of the original construction. (LaMarr v. Regents of
University of California (2024) 101 Cal.App.5th 671, 676 [circumstantial
evidence is substantial evidence].)
Andersson also argues that because neither owner could walk
through the planted areas, the area did not encroach on Andersson’s
Exclusive Use Common Area. Andersson’s argument belies the point of a
fence—to separate two areas and to delineate a border. Andersson’s Exclusive
Use Common Area was to the right of the fence and everything to the left was
the encroaching improvements, including the planter and the 85-inch
walkway.
Because there was an easement in favor of the Razos over the
wider entryway, adjoining pilasters, planter, and wrought iron fencing,
Andersson could not remove or modify those areas without Association
approval.
IV.
ANDERSSON WAS RESPONSIBLE FOR DEFENDING AND INDEMNIFYING DIG
Last, Andersson argues the trial court erred in concluding that
she was responsible for defending and indemnifying DIG. She claims DIG
was not licensed when DIG performed the work at issue. Because of this,
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according to Andersson, DIG’s contract, including its indemnity provision,
was illegal.
However, Andersson did not raise this defense at trial. “‘“As a
general rule, theories not raised in the trial court cannot be asserted for the
first time on appeal; appealing parties must adhere to the theory (or theories)
on which their cases were tried. This rule is based on fairness—it would be
unfair, both to the trial court and the opposing litigants, to permit a change
of theory on appeal.” [Citation.] “New theories of defense, just like new
theories of liability, may not be asserted for the first time on appeal . . . .”’”
(Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548.)
This rule is especially apt here because resolving this issue would
require us to make factual determinations utilizing evidence that Andersson
did not present at trial. As part of her appeal, Andersson submitted a request
for judicial notice pertaining to DIG’s licensing documentation. But she did
not present these materials to the trial court. We are not a fact-finding
tribunal. Our role is limited to reviewing “‘the correctness of a judgment as of
the time of its rendition.’” (In re Zeth S. (2003) 31 Cal.4th 396, 405), Thus, we
will not take notice of documents not presented to the trial court. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
For these reasons, Andersson cannot assert this defense for the
first time on appeal.
DISPOSITION
The judgment is reversed. On remand, the trial court is directed
to enter a new judgment, consistent with this opinion. The court is also
ordered to reassess the amount of attorney fees the Razos are entitled to
receive. (Gunther v. Alaska Airlines, Inc. (2021) 72 Cal.App.5th 334, 358–
359.)
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All parties to bear their costs incurred on appeal.
SANCHEZ, J.
WE CONCUR:
MOTOIKE, P. J.
GOODING, J.
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