Highland Property Owners v. Gaskin

Filed 5/13/08 Highland Property Owners v. Gaskin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Linda S. Etienne, Commissioner.

Donald Ray Gaskin and Mary Joan Gaskin, in pro. per., for Defendants and Appellants.

John B. Linford for Plaintiff and Respondent.

-ooOoo-

Procedural and factual SUMMARy

Appellants Donald Ray and Mary Joan Gaskin, trustees of the Gaskin Family Living Trust (Gaskins), own property in a common-interest developed community known as the Juniper Highlands. The property was purchased in December 2001. In 2004, a dispute arose between the Gaskins and respondent, The Highlands Property Owners, Inc. (Association), over use of the Gaskin property. According to the Association, the Gaskins violated the controlling covenants, conditions, and restrictions (CC&Rs) recorded on June 19, 1991, by (1) installing a gate across their driveway in a position other than the one approved by the Associations architecture committee; (2) installing a corrugated metal roof without prior approval; (3) storing personal items on their property in full view of other property owners; (4) constructing a nonfunctioning outhouse, as yard art, without prior approval; (5) placing both the outhouse and the gate in violation of setback requirements; and (6) parking vehicles within the private roadway of the development, creating a nuisance. The Gaskins were asked by the Association to address these issues and bring their property into compliance with the CC&Rs. Offended by the Associations position and claiming discriminatory harassment, the Gaskins filed a complaint against the Association, alleging claims of negligent and intentional infliction of emotional distress, invasion of privacy, defamation, and fraud (case No. S-1500-CV-255041). By the time of trial, the only remaining causes of action were negligent infliction of emotional distress and fraud.

After a statutorily mandated alternative dispute resolution attempt failed, the Association countered with its own action (case No. S-1500-CV-255861),^[1]seeking injunctive and declaratory relief to enforce the CC&Rs. Both matters were tried to the court in a consolidated hearing. With respect to the Gaskins action, the court found in favor of the Association. As to the Associations complaint, the court found that the CC&Rs were reasonable and enforceable. It also concluded that the Gaskins had violated the CC&Rs by installing the driveway gate inconsistently with the plan they submitted, which was approved by the Association; by installing the corrugated metal roof and outhouse without obtaining prior approval; and by storing a number of items on the property outside enclosed storage areas. The court also determined that, although there had been no evidence that the Gaskins were parking vehicles on the private roadway within the development, if they were, this would be a nuisance within the meaning of Civil Code^[2]section 3479. The Gaskins motion for new trial was denied. The judgment and permanent injunction were entered in favor of the Association on April 4, 2007. Notice of entry of judgment was filed on April 9, 2007. Costs and attorney fees were awarded to the Association under paragraph 23 of the CC&Rs.

Discussion

I. Appellate courts role

An appellate courts role is a limited one. Our jurisdiction is limited in scope by the notice of appeal and judgment from which the appeal is taken. (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) In addition, we are required to presume the trial courts judgment or order is correct and must draw all inferences in favor of the trial courts decision. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) Some other basic appellate rules warrant mention. For example, an appeal must not be a mere rehash of arguments unsuccessful at trial, but must include a careful assertion of legal error and resulting prejudice. (Ibid.) We are not permitted to consider new evidence or question witnesses, and no new argument is allowed. (Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207.) On appeal, as in the trial court, unsworn statements or argument by counsel or a pro per litigant are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414.) Along the same lines, we cannot address issues that were not properly preserved in the trial court. (Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99, 117.) This means that matters outside the record should not be discussed in appellate briefs since they are not reviewable. (Oldenkott v. American Electric Inc., supra, 14 Cal.App.3d at p. 207.)

Pro per litigants are held to the same standard as those represented by trained legal counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Further, trial court error is reversible only where an appellant has sustained a substantial injuryand where a different result would have been probable if the error had not occurred. Prejudice is not presumed. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.) An appellants job is to convince us that the trial court erred in ways that result in identifiable prejudice. [E]rror must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.] (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

We provide this overview because many of the Gaskins arguments on appeal do not comply with these rules. As a result, many of their contentions can be resolved summarily because (1) they are not reviewable, being outside the scope of the notice of appeal; (2) the issues have been waived because they were not raised before the trial court; (3) the issues are not supported by evidence in the record; or (4) they have not been presented properly as contentions of legal error resulting in prejudice. Although we respect the efforts taken by the Gaskins to represent themselves, we are constrained by the rules of law that govern appellate jurisdiction. As a general rule, self-representation is fraught with peril,^[3]but this is especially true at the appellate level.

II. Issues properly before this court

A. Scope of notice of appeal

The Gaskins and Associations complaints were consolidated only for hearing purposes, and the court notified all parties that there would be separate judgments. The record on appeal here does not include court documents filed in case No. 255041, and we cannot determine from this record whether it has been reduced to a judgment. The notice of appeal that we are reviewing is limited to case No. 255861, the Associations complaint for injunctive and declaratory relief and the judgment in its favor.

We have jurisdiction only over issues arising out of case No. 255861 and no jurisdiction to address any issues arising out of case No. 255041. Consequently, the issues on appeal are framed by the Associations complaint seeking injunctive and declaratory relief and the courts judgment on each of the causes of action alleged in the Associations complaint. (See Margolin v. Shemaria (2000) 85 Cal.App.4th 891, 894 [no appellate jurisdiction to review sanctions subsequently imposed when notice of appeal reaches only original sanction order].) We cannot address any issue related to the causes of action alleged in case No. 255041.

B. Right to jury trial

The Gaskins contend they improperly were denied a jury trial when the trial court ruled that the case would not be tried to a jury. This contention fails because we lack the power to review the issue for two reasons. First, the Associations action sought only injunctive and declaratory relief; it did not seek damages. As a result, there is no right to a jury trial. (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 9 [in actions seeking only equitable relief, there is no right to jury trial].) The Gaskins right to a jury trial arose from the legal causes of action alleged in their complaint, which is not part of this appeal.

Further, a jury trial was denied apparently because the Gaskins did not deposit the required fees. Our record does not include the hearing where the issue of jury fees was decided, and we have only the parties representations at trial about why a court trial was ordered. This is an insufficient record for review. (See Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [if record is inadequate for meaningful review, appellant defaults and decision of trial court is affirmed]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [failure to provide adequate record requires issue be resolved against appellant].) Even if the issue were properly before us, we cannot determine from this record whether there was legal error.

C. Attorneys contact with therapist

Similarly, the Gaskins allegation that the Associations counsel violated ethical rules by contacting Donald Gaskins therapist, Terry Tully, cannot succeed for the same reason.^[4] First, there is no evidence concerning the nature of the conversation, i.e., what was said or even that the exchange occurred. There is no evidence that counsel talked to the therapist, only Mr. Gaskins unsworn assertions that he did, which are not based on personal knowledge but instead on what he was told, i.e., unsubstantiated hearsay. (Nissel v. Certain Underwriters at Lloyds of London (1998) 62 Cal.App.4th 1103, 1106, fn. 2 [appellate court, like trial court, must ignore inadmissible hearsay].)

Further, without any record of the content of the conversation, we cannot evaluate prejudice. Misconduct by counsel, even if it occurred, does not automatically result in reversal. Only those incidents of misconduct that can be shown to affect the result of a trial require reversal. (See In re Gary G. (1981) 115 Cal.App.3d 629, 637 [in order for misconduct to warrant reversal, resulting prejudice must be demonstrated].) Mr. Gaskins mental health is relevant only to the Gaskins complaint, which sought damages for negligent infliction of emotional distress. There is no such issue in the Associations action. Any information obtained by counsel from Mr. Gaskins therapist could therefore have no bearing on the injunctive and declaratory relief causes of action that we now review.

D. Amended answer

The Gaskins complain that the Association was allowed to amend its answer hours before trial. The Association filed its amended answer in case No. 255041, an action not before us. Consequently, we do not address this point.

E. Fraud allegations

There are several references in the opening brief to the alleged fraud perpetrated by the Association. Although we are uncertain exactly what the Gaskins are arguing with respect to these references, we repeat that the fraud cause of action in the Gaskins complaint was decided against them and that judgment is not part of this appeal. Therefore, we will not address the allegations of fraud.

III. Alleged irregularities

The Gaskins identify a number of procedural irregularities they believe affected the fairness of trial. They include: (1) the alleged arbitrary transfer of the case to Commissioner Etienne four hours prior to trial allegedly without justification and without written approval; (2) the failure to grant the Gaskins motion for contempt and to sanction counsel for the failure of eight nonparty witnesses to appear for depositions; (3) the alleged unpreparedness of the trial judge; (4) the consolidation of the two cases for hearing on the day of trial; (5) the constant interruptions during the course of the eight-day trial for hearings on nonrelated court matters; and (6) the unidentified remarks made by the trial court that seemed prejudicial, unethical and exhibited an Abuse of Discretion.

Contentions 1, 3, 4, 5, and 6 fail because they were not raised in the trial court, they lack legal authority and record support, and they do not show prejudice. Contention 6 also fails because the Gaskins do not identify what remarks made by the trial court they found to be objectionable. Contention 2 fails because there is no record of the motion, the hearing, or the documents filed in support of and in opposition to it. Without an adequate record, there is nothing to review. (Gee v. American Realty & Construction, Inc., supra, 99 Cal.App.4th at p. 1416.)

IV. Alleged perjury

The Gaskins claim on appeal that witnesses Helen Pearson and Bob Talbot committed perjury at trial. The Gaskins claim that Mrs. Pearson committed perjury when she failed to admit that Harold Reed, the Associations vice-president, was at a meeting at her home on June 26, 2006. No record citation is provided. We have reviewed Mrs. Pearsons testimony at trial. She was never asked if Mr. Reed was present at the June 26, 2006, meeting and therefore could not have perjured herself on that issue. With respect to Mr. Talbot, the trial court expressly found him to be a credible witness. Appellate courts do not make determinations of credibility. (Smith v. Bull (1958) 50 Cal.2d 294, 305 [credibility of witnesses is matter for trier of fact].)

V. Subpoena of Harold Reed

The Gaskins claim it was error for the trial court to quash the subpoena of Mr. Reed and that they were prejudiced as a result. The trial court granted the motion to quash on the grounds that Mr. Reed, an 82-year-old, was too ill to attend trial and that he was not properly served. We conclude that the first ground is sufficient to support the courts order and do not need to address the adequacy of service.

Code of Civil Procedure section 1987.1 grants the trial court the authority to quash a subpoena when necessary to protect a witness from unreasonable or oppressive demands. It is also well established that trial courts have the inherent supervisory and administrative powers to control litigation before them. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) At the hearing on the motion for new trial, the Gaskins admitted that the trial court had received three different documents, as well as statements from both of the Associations counsel, representing that Mr. Reed was unable to attend trial due to illness. Although the declaration is not in this record, the contents were summarized, without objection, to the court in the hearing on the motion. According to this record, Mr. Reeds treating physician stated that he had just been released from the hospital where he had been admitted for a high-grade fever, low blood pressure, severe lower back pain, and sepsis. The physician stated that Mr. Reed was still extremely weak and should remain in bed. Mrs. Reed also testified at trial that her husband was under doctors orders. She said he remained in bed for all but three to four hours a day, when he would move to a reclining chair in the living room by using a walker.

In contrast, the Gaskins provided the unsworn statement of Mr. Gaskin that he saw Mr. Reed in a red Towncar leaving town for an approximate hour, hour and a half ride on June 26, stating that its awfully coincidental that Mr. Reed left town and then was ill even though he knew he would be called to testify. In addition, at trial, witness Marci Hudrick testified that she saw Mr. Reed drive out of his driveway at approximately 1:00 p.m. on June 26. As we have explained, unsworn statements are not evidence and, in any event, it is the trial court that resolves any conflict in evidence.

The trial court was free to find the statements of Mr. Reeds treating physician to be credible. This means that, regardless of how overwhelming and persuasive a plaintiff believes his or her proof was with respect to a particular issue, it is within the trial courts power to remain unconvinced by that evidence. (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.) There was no reason for the physician not to be truthful, and the Gaskins offered no competing medical evidence. Even if Mr. Reed had driven somewhere in disobedience of his doctors orders, the trial court was free to conclude that the stress of trial would be too much for an elderly man with a serious illness. The court weighed the severity of Mr. Reeds illness as established by his physician against the offer of proof presented by the Gaskins concerning the importance of Mr. Reeds testimony. In contrast to the evidence about Mr. Reeds illness, the Gaskins offer of proof was nonspecific and speculative. The Gaskins simply asserted that Mr. Reed had made comments relative to the Gaskin property, was aware of the particular circumstances, and was involved in the Associations decision making. They also asserted their belief that Mr. Reed was responsible in some manner for the so-called fraudulent complaints filed against the Gaskins with various county agencies, but offered no evidentiary support for this assertion. Even on appeal, the Gaskins do not say what Mr. Reed might have testified to that would have affected the outcome of trial. In other words, the Gaskins do not specify what testimony Mr. Reed could have offered at trial that would not duplicate that of other Association officers and that would have changed the outcome.

On this record, we conclude there was no abuse of the trial courts authority to quash the subpoena. In addition, for the same reason the Gaskins cannot show any abuse of discretion, they cannot establish prejudice. Even if the subpoena should not have been quashed, we have no evidence before us establishing how Mr. Reeds testimony would have changed the result of the trial.

VI. Uniform enforcement

The Gaskins contend that the CC&Rs are invalid because they are not uniformly enforced. In support of their argument, the Gaskins cite to the testimony of Mr. Lutes, Ms. Lotitto, Mr. and Mrs. Apadaca, Ms. Hudrick, and Mr. Talbot. To summarize, Mr. Lutes testified that he added a room addition to his property about six and one-half years prior to trial. A full reading of Mr. Lutess testimony, however, establishes that he did get approval for the project, although not formal written approval, because it was done before the architecture committee decided to be more formal in its recordkeeping. Mr. Lutes also testified that, later, he did submit plans and obtain formal approval from the committee prior to adding a shed to his property. The Gaskins failed to obtain any approval for their outhouse structure or the corrugated metal roof and did not construct their gate as approved.

Mr. Apadaca testified that he built a deck and a fence without architecture committee approval; however, he also testified that the committee contacted him by letter and phone, informing him that this was a violation of the CC&Rs. Mrs. Apadaca testified that she did not seek prior approval from the architecture committee for her yard art, consisting of flowers, signs, and birdhouses. There is no evidence that the Association considers these items structures subject to prior approval. In other words, as far as this record shows, the Association has not allowed the Apadacas to circumvent the prior-approval requirement of the CC&Rs.

Ms. Lotitto testified that she did not obtain formal approval from the committee before replacing a metal storage shed with a wooden shed four years prior to trial. The Gaskins were not replacing a structure, but instead added one. In addition, there is insufficient evidence to determine whether the Association was aware the shed was replaced and whether the Association concluded that Ms. Lotitto was in violation of the CC&Rs. Without this evidence, her testimony does not support a finding of discriminatory enforcement.

The Gaskins provide no record citation pinpointing what part of the testimony of Mr. Talbot and Ms. Hudrick supports their contention that the CC&Rs are not uniformly enforced. We have reviewed this testimony and find no evidence to support the Gaskins contention. Ms. Hudrick offered no testimony about additions she made to her property without committee approval. Although she did say that plans submitted to the committee were not always approved, this statement merely supports a conclusion that the committee has in the past exercised its authority to refuse approval. It says nothing about the uniformity of enforcement. Likewise, the only portion of Mr. Talbots testimony that arguably supports the Gaskins contention is his testimony that he did not seek approval for installing French doors. According to Mr. Talbot, the installation did not change the blueprint of the building and, consequently, prior approval was not necessary. No evidence has been offered to refute this point. The Gaskins did not install French doors so we are unable to find support for their proposition that the CC&Rs were enforced haphazardly. There is also no evidence that any member of the Association complained about the doors. There is evidence that members complained to the Association about the Gaskin property.

In contrast, there is testimony from several other property owners who stated they had submitted plans to the architecture committee for approval. There was also testimony from the architecture committee members, both past and present, explaining how the committee works, how it has evolved over time to be a more formalized body with better recordkeeping, and how it responds to complaints. In addition, even if there is evidence of individuals who are out of compliance with the terms of the CC&Rs, paragraph 24 gives the architecture committee the right to grant exceptions to the terms when appropriate. The term exception in paragraph 24 supports Mr. Talbots testimony that the CC&Rs grant the architecture committee the authority to grant variances or waivers. In short, there is no evidence to support a finding of discriminatory enforcement.

VII. Miscellaneous allegations

The Gaskins repeatedly contend that the Association has failed to comply with current laws governing common-interest development associations. Each of their contentions suffers from the same fatal flaws. We address them together.

On pages 27 and 28 of their opening brief, the Gaskins set forth ISSUE VII. Although they begin the argument by stating that the CC&Rs have not been updated and lack compliance to specific provisions of the Davis-Sterling Development Act, they end by stating that their demurrer should have been sustained in order to avoid a multiplicity of issues . We do not understand their legal argument, and no specific sections of the cited statute have been identified.

Starting at page 22 of the opening brief, the Gaskins again argue that the Association has not complied with governing statutes and cite section 1363.05 (requires open meetings, notice provides for open meeting exceptions); section 1363.850 (association must give notice of internal dispute resolution process to members); section 1369.590 (must provide annual summary of internal dispute resolution procedure); and sections 1363.810-1363.850 (mandating alternative dispute resolution procedure). At page 35 of their opening brief, the Gaskins argue that the CC&Rs should have been updated and do not comply with statutory mandates. The Gaskins cite to various statutes ( 1363, subd. (h) [notice for discipline], 1368.4, subd. (a)(1) [comparative fault], 1363.05 [open meeting law], and former 1354, subds. (i) & (j) [alternative dispute resolution]), but offer no explanation or application of them to the facts found in the record.

In conclusion, there are no citations to case authority identifying the legal theory on which the Gaskins base their claim of error. There is also no reference to any ruling of the trial court or citation to the record pinpointing where these issues were addressed. Along the same lines, the Gaskins have cited no authority requiring the Association to update the CC&Rs after any given period of time. We cannot ascertain why the Gaskins believe the statutes have been violated and how the alleged violations, if they occurred, have any bearing on the judgment. As a result, we conclude that all of these arguments are waived and do not speculate about their possible impact in this appeal.

VIII. Attorney fee award

The Gaskins contend that the award of costs and fees is a blatant abuse of discretion because (1) they were not provided an opportunity to review original billings and receipts; (2) the Association already received $85,000 in legal fees from the insurance company; and (3) no comparative fault by the Association was considered by the court. Again, the Gaskins do not present a valid legal argument or provide authority for their contention of error. Their challenge is waived for this reason. Even so, we will attempt to explain why the arguments made, as we understand them, lack merit.

First, the Gaskins had an opportunity to review the billing statements and receipts supporting the request for fees. In support of the motion for fees, the law firm provided a detailed summary of the services rendered in connection with the Associations action. This is the customary showing when fees are requested. Although the Gaskins asked to see the original documents, canceled checks, receipts, etc., in their opposition to the motion, they offered no evidence to suggest the billing statements were not accurate and therefore can show no prejudice.

Regarding the claim that the fees have already been paid by the insurance company, the declaration of attorney John Linford explains that the fees requested represent 40 percent of the total fees incurred in the litigation. This was the law firms attempt at apportioning the fees between the Gaskins action, which was arguably covered by an insurance policy and for which fees are not recoverable (Trope v. Katz (1995) 11 Cal.4th 274, 278 [attorney fees not recoverable as costs unless authorized by statute or contract]), and the Associations action for which fees are allowed under the express provisions of the CC&Rs, but for which there is no insurance coverage. (See also Abdallahv.United Savings Bank (1996) 43 Cal.App.4th 1101, 1111 [when contract cause of action for which prevailing party is entitled to attorney fees is joined with other causes of action, prevailing party is entitled to recover only fees incurred under contract].) The Gaskins do not contend on appeal that this is an unfair apportionment, nor do they offer an alternative apportionment. As was explained at the hearing, the insurance reimbursement covers the legal fees incurred in defending the Gaskins complaint; it does not cover any fees awarded in this action. On appeal, the decision of the trial court awarding fees will not be reversed absent an abuse of discretion. (Mustachio v. Great Western Bank (1996) 48 Cal.App.4th 1145, 1151.) We find no fault with the trial courts award of fees.

Finally, there is no question that the Association is entitled under the terms of the CC&Rs to an award of fees in the action seeking enforcement of the CC&Rs terms. The Gaskins do not disagree. With regard to the appeal, costs are generally awarded to prevailing parties. (Cal. Rules of Court, rule 8.278.) And, when there is a contractual provision authorizing attorney fees, fees incurred on appeal are recoverable. (See Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 265.) Unfortunately, litigation is an expensive dispute-resolution tool.

IX. Sufficiency of the evidence

The Gaskins have not directly challenged the sufficiency of the evidence to support the trial courts order. In an abundance of caution, we have reviewed the record to determine if the courts order is supported by sufficient evidence. In determining whether there is substantial evidence to sustain a judgment, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence that supports the determination of the trial court. When two or more inferences can reasonably be deduced from the facts, we cannot substitute our deductions for those of the trial court. If substantial evidence exists, it is of no consequence that the trial courts believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) CC&Rs contained in a recorded document are presumed to be reasonable, valid, and enforceable. (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 368.)

We conclude that there is sufficient evidence to support the trial courts decision finding the CC&Rs enforceable and the Gaskins to be out of compliance. The CC&Rs, in paragraph 9, state that any new structure of any nature whatsoever shall not be erected, placed, altered, used, or permitted to remain on any lot within the property until plans have been submitted to the architecture committee for approval and a determination is made that the proposed structure conforms and harmonizes with the external design of existing structures. The standard is a subjective one, determined by a majority of the architecture committee.

The undisputed evidence shows that the Gaskins built their gate in a place other than what was approved and that, when in its full open position, the gate extends into the dedicated roadway. The outhouse, although labeled yard art by the Gaskins, falls reasonably within the broad definition of structure found in paragraph 9. The undisputed evidence is that the Gaskins failed to obtain approval for the outhouse prior to erecting it. The metal roof was an alteration of an existing building made without prior approval of the architecture committee and is of questionable workmanship. All three of these additions to the Gaskin property violated paragraph 9 of the CC&Rs, and the Association was within its rights to force the Gaskins to remove or correct the violations. Indeed, the Association has an independent duty to enforce any violations of the CC&Rs. (See Duffey v. Superior Court (1992) 3 Cal.App.4th 425, 433.)

In addition, the Gaskin property contains a number of items stored in the open in violation of paragraph 13 of the CC&Rs. Paragraph 13 requires that the storage of tools, landscaping equipment, household effects, machinery, machinery parts, old automobiles, automobile parts, containers, trash, materials of any similar or other items that may, as deemed by the Committee of Architecture, detract in appearance from the aesthetic values of the property shall be placed or stored so as to be concealed from public view. Photos of the Gaskin property admitted as trial exhibits clearly show items stored in the open and visible to adjoining landowners.^[5]

The Gaskins offer no real defense to these violations other than to argue that it is their property, and their actions should offend or concern no one else. Unfortunately for the Gaskins, however, they purchased property subject to the specified CC&Rs. In such communities, the private property rights of property owners are subject to the covenants and restrictions recorded against the property. These CC&Rs are recorded at the time of their creation, providing legal notice to all subsequent purchasers that they will be required to use their property consistent with the restrictions found in the recorded CC&Rs. In essence, purchasers of property subject to CC&Rs are contracting with their neighbors, promising to conform to the provisions of the CC&Rs in the use of their property. (Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 349 [property owners are deemed to agree to be bound by written and recorded CC&Rs as they have constructive notice of CC&Rs when they purchase their homes].) Whether the Gaskins had actually read the CC&Rs before purchasing their property is not the issue. The record reflects that the Gaskins attended an Association meeting in November 2001 where copies of the CC&Rs were given out. In addition, they admitted in pretrial discovery that they were aware the property was burdened with the CC&Rs. Having bought property subject to the restrictions found in the CC&Rs, the Gaskins are bound to abide by them, and the Association is free to enforce them. The judgment is supported by sufficient evidence.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to the Association.

_____________________

Wiseman, J.

WE CONCUR:

_____________________

Harris, Acting P.J.

_____________________

Levy, J.

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^[1]In the future, we refer to these as case Nos. 255041 and 255861.

^[2]All further statutory references are to the Civil Code unless otherwise noted.

^[3]For example, at oral argument, the Gaskins objected to this courts consideration of a number of trial court exhibits transferred to this court at the request of the Association. They objected on the grounds that the number of exhibits exceeds that allowed by applicable rules of court. There is no such limitation. It is possible the Gaskins are referring to California Rules of Court, rule 8.204(d), which limits to 10 pages the number of any exhibits or attachments to a partys brief. However, this rule does not restrict the number of exhibits this court may consider in resolving an issue on appeal. To the contrary, California Rules of Court, rule 8.124(b)(5) and rule 8.120(b)(3)(B), require that all exhibits admitted into evidence at the trial be deemed a part of the appellate record.

^[4]In their opening brief, the Gaskins cite to the reporters transcript, page 269, as support for their assertion that the Associations counsel, Seth ODell, unscrupulously pumped the therapist for information. We see no support for this assertion at this page. There is argument of counsel at the hearing on the motion for new trial suggesting there was an objection by Mr. Gaskin to Mr. ODells contact with the therapist; however, the nature of the conversation is not mentioned. In any event, Mr. Gaskins mental state was placed at issue by the allegations of the Gaskins complaint. During the course of litigation in which a party places his or her mental health at issue, the party waives any doctor-patient privilege, and opposing parties have a right to discover any information in the possession of the partys treating physicians that is relevant. (See Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 35.)

^[5]We do not discuss the trial courts finding that parking vehicles on the roadway is an enjoinable nuisance. The Gaskins do not challenge this finding on appeal and the trial courts order is more protective than corrective because it determined there was no evidence to show that the Gaskins had parked their vehicles on the roadway itself.