Wagner v. Bike

Filed 12/17/09 Wagner v. Bike 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. Craig Riemer and Kenneth Ziebarth, Judges.^* Reversed with directions.

Brack & Mason, Lindsay R. Brack and Susan L. Mason for Plaintiffs and Appellants.

Gordon & Rees and Stephanie P. Alexander for Defendant and Respondent Lon Bike.

Gary J. Bryant for Defendant and Respondent Sandra Bike.

I. INTRODUCTION

In early 2003, plaintiffs and appellants Mitchell S. Wagner and Renee D. Wagner (the Wagners) and defendants and respondents Lon Bike and Sandra Bike (the Bikes) owned adjoining five-acre parcels of real property in the unincorporated community of La Cresta in Riverside County. The Wagner property was improved with a single-family residence which the Wagners purchased and moved into in 1997. The Bike property was unimproved. Around February 2003, the Bikes moved a 260-square-foot fifth wheel, a construction trailer, and four corrugated metal walk-in storage containers onto their property, and began using the fifth wheel as their principal residence.

In August 2003, the Wagners sued the Bikes, claiming the structures on the Bike property constituted private nuisances because they violated county land use ordinances, and also violated the recorded covenants, conditions and restrictions (CC&Rs) of the La Cresta Property Owners Association (the LCPOA), and other unrecorded governing documents of the LCPOA. The Wagners sought monetary damages and a permanent injunction abating or removing the structures and restraining the Bikes from planting trees or other foliage to obstruct the easterly view from the Wagner property toward Lake Skinner.

The Wagners also sued Lon Bike, in his capacity as chairman of the Architectural Committee of the LCPOA, and the LCPOA, for breach of fiduciary duty on the grounds the CC&Rs were being selectively enforced and not enforced against the Bikes.^[2] The Bikes cross-complained against the Wagners, claiming a chain-link fence and an unscreened water tank on the Wagner property constituted nuisances. The LCPOA cross-complained against the Bikes for equitable indemnity and further claimed that the metal storage containers, but not the fifth wheel or the construction trailer, violated the CC&Rs.

In February 2008, a bifurcated court trial was held solely on legal and equitable issues. The court concluded that none of the parties were entitled to any relief on the complaint or the cross-complaints. The court entered two judgments, one adjudicating all claims between the Bikes and the Wagners, and a second adjudicating all claims between the Bikes and the LCPOA. No judgment was entered in favor of the LCPOA on the Wagner complaint. The Wagners appeal from the judgment in favor of the Bikes on the Wagner complaint and from postjudgment orders awarding each of the Bikes costs and attorney fees. Neither the Bikes nor the LCPOA have appealed. Only the Wagners and the Bikes are parties to the present appeal. For the reasons we explain, we reverse the judgment in favor of the Bikes on the Wagner complaint, and remand the matter for further proceedings.

II. BACKGROUND

A. The BifurcatedCourt Trial

Before trial in February 2008, the parties agreed to bifurcate the issues to be tried and hold an initial court trial, referred to as phase I, on legal and equitable issues. As pertinent to this appeal, the parties agreed to allow the court, sitting without a jury, to determine: (1) whether the structures on the Bike property violated any Riverside County land use ordinances, the CC&Rs, or any unrecorded governing documents of the LCPOA; (2) whether the structures on the Bike property constituted private nuisances to the Wagners; and (3) whether the removal or abatement of the structures was a feasible or necessary remedy. All elements of damages, other than injunctive relief and punitive damages, were to be determined in later phases of the trial.

B. TheEvidence Presented at Trial (As Pertinent to This Appeal)

At trial in February 2008, it was undisputed that the Bikes moved their fifth wheel, construction trailer, and four metal storage containers onto their unimproved property in early 2003; the Bikes had been using the fifth wheel as their principal residence since early 2003; the construction trailer and two of the original four metal storage containers were still on the property; and the Bike property had never been improved with a residence. The Wagner property was adjacent to the Bike property and was improved with a single-family residence the Wagners purchased and moved into in 1997. The Wagner property was approximately 25 feet higher in elevation than the Bike property. Between 2001 and early 2003, Lon Bike was a member and chairman of the Architectural Committee of the LCPOA.

In February 2008, the view from the Wagner property of the structures on the Bike property was largely, if not completely, obscured by trees the Bikes had planted on their property in 2004. But during at least part of the period between early 2003 and February 2008, the structures on the Bike property were partially to fully visible from the Wagner property.

Riverside County Senior Code Enforcement Officers Michael Sanders and Brian Bealer opined that the structures on the Bike property violated county land use ordinances and municipal code provisions. In March and April 2004, Officer Sanders issued two citations to the Bikes for the metal storage containers and the construction trailer. According to Officer Bealer, however, no hearing was held on either citation and neither was finally adjudicated. The Bikes were not cited for the fifth wheel, because Officer Sanders could not access their property in order to determine whether utilities were connected to the fifth wheel. Officer Sanders believed he had to ascertain whether utilities were connected in order to prove the fifth wheel was being occupied.

The trial court admitted various documents into evidence, including, but not limited to: (1) the CC&Rs, as originally recorded in 1969 and as amended from time to time; (2) other unrecorded governing documents of the LCPOA, issued by the board of directors of the LCPOA or its Architectural Committee; and (3) photographs of the Bike property, as viewed from the Wagner property. Before issuing its statement of decision, the trial court visited the Bike and Wagner properties.

C. The Trial Courts Statement of Decision and This Courts Conclusions

In its statement of decision, the court did not address two critical issues concerning the Wagners private nuisance claim:^[3] (1) whether the structures on the Bike property violated any county land use ordinances and therefore constituted nuisances per se and public nuisances, and (2) whether the structures substantially and unreasonably interfered with the use and enjoyment of the Wagner property and thus constituted private nuisances to the Wagners at any time prior to trial. The court implied that these issues were moot because, at the time of trial, the structures were almost fully obscured by trees the Bikes planted on their property in 2004.^[4] Thus, the court concluded that, to the extent the structures constituted private nuisances to the Wagners, the nuisances had been abated by the time of trial.^[5]

The trial court erred in failing to address whether the structures constituted a public or private nuisance at any time prior to trial. Although substantial evidence supports the courts conclusion that the nuisances had been abated by the time of trial due to the growth of trees on the property, this did not moot the questions whether the structures constituted public nuisances or private nuisances to the Wagners at any time prior to trial.

In their opening brief on this appeal, the Wagners confuse the issues by focusing on the damages that may be recovered for a private nuisance.^[6] Still, they effectively raise the issue which must be determined in the first instance on their cause of action for private nuisance, which is whether the structures on the Bike property constituted nuisances per se and public nuisances because they violated applicable county zoning ordinances.

On independent review, we conclude that the occupied fifth wheel, construction trailer, and metal storage containers constituted nuisances per se and public nuisances as a matter of law. Our conclusion is based on our independent interpretation of applicable county land use ordinances and the undisputed facts presented at trial, namely, that during the five-year period before trial, the Bikes maintained an occupied fifth wheel, construction trailer, and two to four metal storage containers on their property.

This does not end the inquiry, however, concerning the viability of the Wagners private nuisance claim. A private party may not maintain an action on a public nuisance unless it is specifically injurious to the party or constitutes a private nuisance to that party. The Wagners have pleaded that the structures constituted private nuisances to their property because they substantially and unreasonably interfered with the use and enjoyment of their property. Whether the structures substantially and unreasonably interfered with the use and enjoyment of the Wagner property at any time prior to trial are questions of fact which must be determined on remand.

The trial court further determined that the structures on the Bike property did not violate the CC&Rs at any time, and that the Wagners were precluded from pursuing their cause of action against Lon Bike for breach of fiduciary duty. These determinations were also in error, for the reasons we explain.

We therefore reverse the judgment in favor of the Bikes on the Wagner complaint and remand the matter for further proceedings. In the event the trier of fact determines that the structures or public nuisances substantially and unreasonably interfered with the use and enjoyment of the Wagner property at any time before trial, it must also determine the nature and extent of any damages the Wagners suffered as a result and any other relief to which they may be entitled. The trier of fact or court must also determine the nature and extent of any damages or other remedies presently available to the Wagners for the Bikes past or continuing violations of the CC&Rs, and must allow the Wagners to proceed on their breach of fiduciary claim against Lon Bike.

III. DISCUSSION

A. The Occupied Fifth Wheel, Construction Trailer, and Storage Containers Violated CountyLand Use Ordinances and Therefore Constituted Nuisances Per Se and Public Nuisances as a Matter of Law

A nuisance is broadly defined as including [a]nything which is . . . indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . . (Civ. Code,  3479.) Whether a particular use or activity that is lawful in itself constitutes a nuisance is generally a question of fact, and requires the trier of fact to determine whether the use is reasonable in light of various competing factors and interests. (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.)

When, however, the law expressly declares something to be a nuisance, then no inquiry beyond its existence need be made and in this sense its mere existence is said to be a nuisance per se. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1207.) The concept of a nuisance per se arises when a legislative body with appropriate jurisdiction . . . expressly declares a particular object or substance, activity, or circumstance, to be a nuisance. . . . (Id. at p. 1206; see also Jones v. Union Pacific Railroad Co. (2000) 79 Cal.App.4th 1053, 1068 [Fourth Dist., Div. Two] [To support a claim of nuisance per se, plaintiffs must point to a statutory provision that declares [the alleged conduct] a nuisance.].)

Riverside County Ordinance No. 725, section 4,^[7]expressly declares that: Any condition caused, maintained or permitted to exist in violation of any of the provisions of County Land Use Ordinances shall be and the same is hereby declared unlawful and a public nuisance that may be abated consistent with the procedures provided for in this ordinance, or in any other manner provided by law. (Italics added.) As used in Ordinance No. 725, the term County Land Use Ordinances includes Ordinance Nos. 348 and 457. (Ord. No. 725,  1a.) Ordinance No. 348 states that it shall be known and may be cited as the Riverside County Land Use Ordinance. (Ord. No. 348,  1.1.)

The application of a statute or ordinance to undisputed facts presents questions of law subject to de novo review. (See Versaci v. Superior Court (2005) 127 Cal.App.4th 805, 812.) Based on the undisputed facts presented at trial, we conclude that the structures on the Bike property violated Ordinance Nos. 348 and 457 and therefore constituted nuisances per se and public nuisances as a matter of law pursuant to Ordinance No. 725.^[8]

1. The Occupied Fifth Wheel Violated Ordinance Nos. 348 and 457

From early 2003 through the time of trial in February 2008, the Bike and Wagner properties were zoned R-A or residential agricultural, as denoted in section 3.1 of Ordinance No. 348. Section 6.50 of Ordinance No. 348 describes the uses permitted in R-A or residential agricultural zones, and specifically states that a mobilehome may be used as a principal residence provided it has a floor area of not less than 750 square feet. The Bikes argue that their fifth wheel, despite its 260-square-foot floor area, was not a mobile home and, for this reason, their use of it as their principal residence did not violate Ordinance No. 348. Not so.

A use is generally deemed impermissible unless it is expressly permitted in a particular zone. (City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 431-433 [Fourth Dist., Div. Two] [substantial evidence supported trial courts determination that marijuana dispensary was an impermissible use and a nuisance per se because it was not expressly permitted in the citys municipal code, and no action had been taken to secure a variance for the dispensary].) Here, the use of a fifth wheel as a principal residence was not among the uses expressly permitted in R-A zones. (Ord. No. 348,  6.50.) The use was therefore impermissible and violated Ordinance No. 348.^[9]

In its statement of decision, the trial court concluded that the fifth wheel was not a mobilehome within the meaning of Ordinance No. 348, because Health and Safety Code section 18008 provides that a mobilehome does not include a recreational vehicle as the latter term is defined in Health and Safety Code section 18010. These statutes are part of the MobilehomesManufactured Housing Act of 1980 (the Act). (Health & Saf. Code,  18000 et seq.) The Act governs the construction, titling and registration, and other enumerated activities concerning the use and sale of manufactured homes, mobile homes, commercial coaches, and recreational vehicles. (Health & Saf. Code,  18015.) The Act has nothing to do with the uses permitted in R-A zones, or Ordinance No. 348s prohibition against using mobilehomes fewer than 750 square feet in floor area as principal residences in R-A zones. Thus, the courts reliance on the definition of a mobilehome in Health and Safety Code section 18008 of the Act was misplaced.

The Bikes have requested that we take judicial notice of section 3.1 of Ordinance No. 348, which identifies 37 potential zoning classifications for unincorporated areas in the County of Riverside. Section 3.1 contains a classification denoted R-A-Residential Agricultural, but excludes any zoning classification denoted R-A-20, which is the zoning classification denoted in article III(a) of the CC&Rs. The Bikes argue that section 3.1 shows that the Wagners failed to establish the applicability of various zoning ordinances to the Bike property, and that article III(a) of the CC&Rs is vague and unenforceable because . . . there is no R-A-20 zoning listed in section 3.1 of Ordinance No. 348. The Bikes request for judicial notice is granted. (Evid. Code,  452, subd. (b), 459, subd. (a).)^[10] We disagree, however, with the Bikes arguments.

As indicated and as the CC&Rs acknowledge, all property subject to the CC&Rs has been zoned residential agricultural since 1969. (CC&Rs, art. III(a).)^[11] The R-A-20 classification denoted in article III(a) of the CC&Rs is plainly intended to be the same as the R-A-Residential Agricultural classification denoted in section 3.1 of Ordinance No. 348. There is no indication that the suffix 20 modifies the R-A or residential agricultural zoning classification of the parcel, or denotes a zoning classification other than residential agricultural.^[12]

2. The Construction Trailer Violated Ordinance No. 457

At the time of trial, section 12 of Ordinance No. 457 provided: No person shall install or occupy any manufactured home, mobilehome or commercial coach . . . to be used for the purpose of human habitation or occupancy on any site inside or outside of a mobilehome park in the unincorporated area of the County of Riverside, without first obtaining a permit from the building official. . . . (Italics added.) The county municipal code defines a commercial coach as a vehicle with or without motive power designed and equipped for human occupancy for professional, commercial or industrial purposes. (Riv. County Code, tit. 19.04.009.) The Bikes construction trailer fits this definition; it was designed for human occupancy for professional, commercial, or industrial purposes, and the Bikes did not have a permit for its use. The maintenance of the commercial coach on the Bike property thus violated Ordinance No. 457, section 12.

3. The Metal Storage Containers Violated Ordinance No. 348

At the time of trial, section 21.1 of Ordinance No. 348 provided: Metal shipping containers are not a principal permitted use in any zone, and may be utilized only during building construction and grading operation . . . . No accessory building shall be erected unless a main building exists. (Italics added.) It was undisputed that the Bikes had between two and four metal shipping containers on their property between early 2003 and the time of trial in February 2008. And the Bikes were not utilizing the shipping containers only during building construction and grading operation, as the ordinance allowed. Indeed, there was no building construction or grading operation on the property during the entire five-year period the containers were on the property. Thus, the use or maintenance of the containers on the property violated Ordinance No. 348.^[13]

B. Whether the Structures Substantially and Unreasonably Interfered With the Use and Enjoyment of the Wagner Property Are Questions of Fact Which Must be Determined on Remand

For the reasons we have explained, the structures on the Bike property constituted nuisances per se and public nuisances as a matter of law. (Ord. No. 725,  4.) This does not end the inquiry, however, concerning the viability of the Wagners private nuisance claim. The next question is whether the structures, though they constituted public nuisances, also constituted private nuisances to the Wagners, that is, whether they substantially and unreasonably interfered with the use and enjoyment of the Wagner property at any time prior to trial. These are questions of fact which must be determined on remand.

A public nuisance is one that affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. (Civ. Code,  3480; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1104.) A public nuisance is thus an interference with the rights of a community at large; in contrast, a private nuisance is a civil wrong based on disturbance of rights in land. (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124 (Venuto).) A nuisance may be both public and private, however. (Biber v. OBrien (1934) 138 Cal.App. 353, 357.)

An action based solely on a public nuisance is ordinarily left to the appointed representative of the community. (Venuto, supra, 22 Cal.App.3d at p. 123.) A private party may maintain an action on a public nuisance if he shows the public nuisance is specifically injurious to him. (Civ. Code,  3493 [A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise]; Venuto, supra, at p. 124.) This means that, when the public nuisance is not also a private nuisance, the plaintiff must show that the public nuisance caused him to suffer damages different in kind, not merely in degree, from those suffered by other members of the general public. (Id. at pp. 123-124; but see Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1550-1551 [criticizing Venuto to the extent it can be read as holding that a private individual who has suffered personal injuries as a result of a public nuisance may not sue to abate the public nuisance].)

When, however, the nuisance is both public and private, the plaintiff is not required to show he suffered damages different in kind from those suffered by other members of general public. (Venuto, supra, 22 Cal.App.3d at p. 124.) Instead, the plaintiff is required to show he suffered damages specifically referable to the use and enjoyment of his or her land. (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.) Indeed, the plaintiff does not lose his rights as a landowner merely because others suffer damage of the same kind, or even of the same degree . . . . [Citations.] (Venuto, supra, at p. 124.)

Examples of interferences with the use and enjoyment of land actionable under a private nuisance theory are legion. So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance. [Citation.] An interference need not directly damage the land or prevent its use to constitute a nuisance . . . . (Koll-Irvine Center Property Owners Assn. v. County of Orange, supra, 24 Cal.App.4th at p. 1041, italics added.)

The Wagners have effectively alleged that the structures on the Bike property were public nuisances because they violated county land use ordinances, and also constituted private nuisances because they interfered with the use and enjoyment of the Wagner property. What the Wagners must show on remand is that the structures substantially and unreasonably interfered with their use and enjoyment of their property.

A substantial interference means substantial actual damage[s], significant harm, or a real and appreciable invasion of the plaintiffs interests that is definitely offensive, seriously annoying or intolerable[.] (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.) The primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendants conduct, taking a number of factors into account. . . . (Ibid.) These are questions of fact to be determined in light of all the circumstances of each case. (Id. at pp. 938-939; cf. Oliver v AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534-353 [in cases not involving a nuisance per se, unpleasant or unsightly appearance of neighboring property, in and of itself, does not rise to the level of a nuisance].)

As indicated, the trial court did not determine whether the structures on the Bike property substantially and unreasonably interfered with the use and enjoyment of the Wagner property at any time prior to trial. This omission occurred because, at the time of trial in February 2008, the court found that the structures were no longer visible from the Wagner property due to the growth of trees on the Bike property, and thus concluded that the Bikes property does not at present constitute a private nuisance to the Wagners. (Italics added.) Although substantial evidence supports the trial courts conclusion, it remains to be determined whether the structures constituted private nuisances to the Wagners at any time prior to trial. In other words, although the structures may have been abated by the time of trial by the growth of trees on the Bike property, it does not follow that the structures did not substantially and unreasonably interfere with the use and enjoyment of the Wagner property before they were abated or obscured by the growth of trees.

As noted, the Wagners raise several claims regarding the damages that may be recovered for a private nuisance. These claims are premature. On remand, the trier of fact must first determine whether the structures on the Bike property substantially and unreasonably interfered with the use and enjoyment of the Wagner property at any time prior to trial. If so, the trier must also determine the nature and extent of any damages the Wagners are entitled to recover for the private nuisances. The nature and extent of any recoverable damages may turn on evidence not presented at the February 2008 court trial.^[14]

C. Because theStructures on the BikePropertyViolatedCountyLand Use Ordinances, They Violated the CC&Rs

Apart from whether the Wagners private nuisance claim against the Bikes had merit, the trial court was called upon to determine whether, as the Wagners further alleged, the structures on the Bike property violated the CC&Rs. The court determined that none of the structures violated the CC&Rs. In its statement of decision, the court interpreted the CC&Rs as providing only that property within the association is subject to the rules, regulations and restrictions of the R-A-20 zoning contained in the Zoning Ordinance of the County of Riverside . . . . (Italics added.) The court thus read the CC&Rs as not prohibiting the maintenance of structures in violation of zoning ordinances, and concluded that a violation of a county zoning ordinance does not automatically constitute[] a violation of the governing documents or CC&Rs. We disagree with this interpretation of the CC&Rs.

Article III(a) of the CC&Rs provided that: No building, structure, improvement, or use, shall be constructed, erected, allowed, placed, permitted to remain, or made, on any lot, or portion thereof, other than as provided by the rules, regulations and restrictions of the R-A-20 zoning contained in the Zoning Ordinance for the County of Riverside as the same may be amended from time to time or other than that permitted under the appropriate zoning which may hereinafter be enacted and covering said Tract . . . . Thus, article III(a) expressly and affirmatively prohibited uses or the placement of structures in violation of county zoning ordinances, and equated a zoning ordinance violation with a violation of the CC&Rs. And, because the Bikes fifth wheel, construction trailer, and metal storage containers violated Ordinance Nos. 348 and 457, they also violated the CC&Rs. (See also Civ. Code,  1378, subd. (a)(3) [decision on a proposed physical change to an owners separate property interest may not violate any provision of law including, but not limited to . . . applicable law governing land use . . . .].)

The Bikes use of the fifth wheel as their principal residence also violated a more specific provision of the CC&Rs, namely, article III(b). That provision stated: There shall not be erected or maintained on said Tract, or any portion thereof, any dwelling residence which shall have a living area of less than 1000 square feet . . . . In 1976, article III(b) was amended to increase the permissible size of any dwelling residence from 1,000 square feet to 1,600 square feet. The use of the fifth wheel as a dwelling residence thus violated the plain language of article III(b) of the CC&Rs.

As the trial court indicated, the Wagners are authorized to enforce the CC&Rs as equitable servitudes against the Bikes and the LCPOA. (CC&Rs, art. XII; Civ. Code,  1354, subds. (a), (b).) Whether the Wagners are entitled to monetary damages or other remedies for the Bikes past and potentially continuing violations of the CC&Rs are questions which must be determined on remand, together with whether and, if so, to what extent the Wagners are entitled to monetary damages or other remedies for private nuisance.

Finally, it is unnecessary for this court to consider whether any of the structures on the Bike property violated any of the unrecorded governing documents of the LCPOA. As the trial court indicated, the Wagners do not have standing to enforce unrecorded governing documents against the Bikes. (Civ. Code,  1354, subd. (b).)

D. The Wagners Are Not Precluded From Pursuing Their Breach of Fiduciary Duty Claim Against Lon Bike

The trial court ruled that the Wagners could not proceed on their cause of action against Lon Bike for breach of fiduciary duty, that is, for failing to enforce or selectively enforcing the CC&Rs or other governing documents in his capacity as a member or chairman of the Architectural Committee of the LCPOA, for three reasons. These were: (1) there was no present nuisance on the Bike property at the time of trial; (2) a violation of a county zoning ordinance is not automatically a violation of the CC&Rs; and (3) the Wagners were guilty of laches, because they failed to seek a temporary restraining order or preliminary injunction abating or removing the structures, during the four-and-one-half-year period between the time they filed their initial complaint in August 2003 and the time of trial in February 2008.

The first rationale is not dispositive of the breach of fiduciary duty cause of action, and, for the reasons indicated, the second rationale was in error. Regarding the third rationale, neither the court nor any of the parties have cited any authority to support the proposition that the Wagners were guilty of laches because they failed to seek a temporary restraining order or preliminary injunction removing the structures prior to trial in February 2008, and were therefore precluded from asserting any of their claims against the Bikes. Laches requires a showing of prejudice to an adverse party (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183), and here there was no showing that the Bikes were prejudiced because the Wagners did not move for a temporary restraining order or preliminary injunction removing the structures from the Bike property. Thus, on this record, the Wagners may proceed on their cause of action against Lon Bike for breach of fiduciary duty.

E. TheAttorney Fee and Cost Award in Favor of the Bikes Must Be Reversed

Finally, in its statement of decision and judgment, the trial court determined that the Bikes were the prevailing parties on the Wagner complaint and the Wagners were the prevailing parties on the Bike cross-complaint. (Civ. Code,  1354, subd. (c).) In postjudgment orders, Lon Bike was awarded $224,218.66 in attorney fees and costs, and Sandra Bike was separately awarded $80,895.95 in attorney fees and costs. Our reversal of the judgment in favor of the Bikes necessarily compels reversal of the awards of attorney fees and costs to the Bikes. (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1053.) After reversal of a judgment the matter of trial costs [is] set at large. [Citation.] (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284.)

IV. DISPOSITION

The judgment in favor of the Bikes on the Wagner complaint, together with the postjudgment orders awarding the Bikes costs and attorney fees are reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion. The Wagners shall recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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^* Kenneth Ziebarth is a retired judge of the San Bernardino Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

^[2] Lon Bikes defense was funded by the LCPOAs insurance carrier. Sandra Bike was represented by separate counsel.

^[3] In their operative fourth amended complaint, the Wagners asserted a first cause of action against the Bikes for private nuisance. They alleged that the structures on the Bike property constituted private nuisances because they interfered with the use and enjoyment of the Wagner property, diminished the value of the Wagner property, and violated the CC&Rs and the Riverside County Code. They claimed they were entitled to injunctive relief requiring the Bikes to abate the nuisances by removing all offending structures and restraining the Bikes from planting trees or other plants of such height as to obstruct the view from the Wagner property.

^[4] The court wrote that the structures were barely visible from the ground level of the Wagner property due to the growth of trees on the Bike property and their partial visibility from the second floor of the Wagners house would lessen as the foliage grows higher over time.

^[5] Because the structures were nearly fully obscured by trees, the court concluded that the Wagners failed to meet their burden of proving that a private nuisance present[ly] exists which requires abatement by this court. For this reason, the court ruled the Wagners could not prevail on a theory of nuisance per se and declined to consider whether the structures on the Bike property violated any county land use ordinances or whether the structures constituted private nuisances to the Wagners at any time before trial.

^[6] The Wagners claim: 1. Damages, including loss of enjoyment, present diminution in value and lost sales may be recovered for temporary nuisance[;] [] 2. Damages for permanent nuisance, including future diminution and stigma damages, are recoverable when a nuisance is longstanding or it appears doubtful the nuisance will be abated[;] [] 3. Damages may be recovered for violations of county ordinances when the violation constitutes a nuisance per se, the homeowner is directly impacted, and the violation also constitutes a violation of applicable CC&Rs[;] [] 4. Damages may be recovered against a property owner who serves as the Architectural Committee Chairman for breach of fiduciary duty for willfully violating and selectively enforcing governing documents[;] [] 5. It is error or an abuse of discretion to award attorneys fees to an owner who refuses mediation, to refuse to consider unclean hands, and to fail to compare and apportion fees.

^[7] All further references to ordinances are to the Riverside County Ordinances.

^[8] In her separate respondents brief, Sandra Bike argues there is no authority that allows the legislative body of a county, as opposed to a city, to declare what constitutes a nuisance within the countys jurisdiction. She points out that although Government Code section 38771 provides that the city legislative body may declare what constitutes a nuisance, no similar statute authorizes the legislative body of a county to declare what constitutes a nuisance. (Italics added.)

The same issue was presented and rejected in Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249. As the appellate court there observed: [A] [c]ounty has a constitutional right to make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws. (Cal. Const., art XI,  7.) It therefore is not particularly relevant . . . whether a county, as opposed to a city, has the power to declare the violation a nuisance. (Id. at pp. 255-256, fn. omitted.)

^[9] Our conclusion is bolstered by section 3.3 of Ordinance No. 348, which states: When a use is not specifically listed as permitted or conditionally permitted in a zone classification,the use is prohibited unless, in circumstances where this ordinance empowers him to do to, the Planning Director makes a determination that the use is substantially the same in character and intensity as those uses permitted or conditionally permitted in the zone classification. (Italics added.) There is no indication that the county planning director determined that the use of a 260-square-foot fifth wheel as a principal residence is substantially the same in character and intensity as any use permitted or conditionally permitted in R-A zones, including the use of a mobile home greater than 750 feet in floor area as a principal residence.

^[10] For the sake of clarity, we take judicial notice of Ordinance Nos. 348, 457, and 725 in their entirety, on our own motion. (Evid. Code,  452, subd. (b), 459, subd. (a).) In written closing argument, the Wagners argued that the structures violated each of these ordinances. It is unclear, however, whether the trial court took judicial notice of any of these ordinances; they were not received into evidence at trial and, as indicated, the court did not rule on whether the structures violated any county ordinances.

^[11] Article III(a) of the CC&Rs provides: No building, structure, improvement, or use, shall be constructed, erected, allowed, placed, permitted to remain, or made, on any lot, or portion thereof, other than as provided by the rules, regulations and restrictions of the R-A-20 zoning contained in the Zoning Ordinance for the County of Riverside as the same may be amended from time to time or other than that permitted under the appropriate zoning which may hereinafter be enacted and covering said Tract, or part thereof, by the County of Riverside. (Italics added.)

^[12] In addition, the Wagners have requested that we take judicial notice of superior court records consisting of the Bikes petition for a writ of mandate in case No. RIC504942, filed on July 31, 2008, during the pendency of this appeal and following the trial in this matter in February 2008. (Cal. Rules of Court, rule 8.252(a); Evid. Code,  452, subd. (d), 459.) In their petition, the Bikes sought an order of the superior court prohibiting the Riverside County Board of Supervisors from enforcing a May 23, 2008, order, which the board issued following a hearing, directing the Bikes to remove the construction trailer and two metal storage containers from their property on the grounds the structures violated Riverside County Zoning Ordinance No. 348 and constituted public nuisances (the abatement order). In their writ petition, the Bikes argue that the abatement order is invalid because it is barred by principles of res judicata, based on the trial courts finding in the present case that the structures did not constitute public nuisances. As indicated, however, the trial court did not find that the structures did not constitute nuisances per se or public nuisances.

In any event, the Wagners argue that judicial notice of the Bikes writ petition is necessary in order to prevent the Bikes from (1) falsely implying to this court that they are only temporarily living in their fifth wheel, when the record in the present case shows that, as of the time of trial in February 2008, they had been living in the fifth wheel and using it as their principal residence for five years, and (2) preventing this court from considering the testimony of the code enforcement officers that the structures on the Bike property violated Ordinance No. 348 and constituted public nuisances. The Wagners further argue that, although the Bikes writ petition and its contents, including the abatement order, were not filed or issued, respectively, until after trial in this matter and were therefore not presented to the trial court for its consideration (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [appellate court will generally not take judicial notice of matters that could have but were not presented to the trial court]), this court should nevertheless take judicial notice of the petition and its contents because they are necessary to prevent the Bikes from playing fast and loose with the courts and attempt[ing] to manipulate the legal system (People ex rel. Sneddon v. Torch Energy Services, Inc. (2002) 102 Cal.App.4th 181, 189 [judicial estoppel precludes party from gaining an advantage by taking inconsistent positions]; Thomas v. Gordon (2000) 85 Cal.App.4th 113, 119 [judicial estoppel should be applied where litigant has made an egregious attempt to manipulate the legal system]).

The Wagners request is denied. Neither the Bikes writ petition nor its contents, including the abatement order, are relevant to the issues on this appeal. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1282, fn. 2 [appellate court may decline to take judicial notice of matters not relevant to issues on appeal].) Essentially, the Wagners are asking this court to take judicial notice that, in their writ petition, the Bikes misrepresented to the superior court that the trial court in the present case made a finding that neither the construction trailer nor the two metal storage containers constituted public nuisances. But, as indicated, the trial court did not find that the construction trailer or the metal storage containers did ordid not constitute nuisances per se or public nuisances. And if it had, such a finding would be erroneous as a matter of law, based on the content of the applicable ordinances and the undisputed facts presented at trial concerning the nature of the structures on the Bike property and when and how they were being used.

^[13] The Bikes argue that the citations that Officer Sanders issued to them in March and April 2004 were not finally adjudicated following a hearing and thus do not have collateral estoppel effect on the issue whether the structures violated county ordinances. (Imen v. Glassford (1988) 201 Cal.App.3d 898, 906-907.) We agree; however, our conclusion that the structures violated Ordinance Nos. 348 and 457 is based on our independent interpretation of the ordinances and the undisputed facts presented at the trial concerning the nature of the structures and their use or maintenance on the Bike property. Our conclusion is not based to any extent on the fact the citations were issued. Nor is it to any extent based on the testimony of Officer Sanders or Officer Bealer that, in their opinion, the structures violated county land use ordinances or municipal code provisions.

^[14] The Wagners preserved their right to a jury trial on [a]ll elements of damages, if any, they incurred as a result of the private nuisances. (See Code Civ. Proc.,  731 [a nuisance may be enjoined or abated, and damages may also be recovered].)