Bailey v. Becera



















Filed 4/15/13 Bailey v. Becera 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NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

JERRY BAILEY, Plaintiff and Appellant, v. LEONARD BECERRA et al., Defendants and Respondents.

E055380 (Super.Ct.No. RIC10009172) OPINION

APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County. Edward D.
Webster, Judge. Reversed.

Spile,
Leff & Goor and DW Duke for Plaintiff and Appellant.

No
appearance for Defendants and Respondents.

Plaintiff
and appellant Jerry Bailey, a homeowner in a common interest development in Corona, sued his
neighbors, defendants and respondents Leonard and Carmen Imelda Becerra, for an
alleged violation of the development’s recorded covenants, conditions, and
restrictions (“CC&R’s”).href="#_ftn1"
name="_ftnref1" title="">[1]

Specifically, plaintiff claimed that
defendants violated a provision of the recorded CC&R’s entitled
“Maintenance of Views.” The provision
states: “In order to maintain views where they occur, no owner shall make
any addition to the house structure as built by Declarant that will interfere
with the view of the neighbors to the side or rear. No arbors, outbuildings or other structures
shall be erected or placed so as to disturb the views of the neighbors to the
side or rear. All trees, shrubs or the like shall be trimmed so as not to interfere
with the view of the neighbors to the side or rear.” (Italics added.)

Plaintiff
alleged that palm trees planted in defendants’ back yard have grown to the
point that they are interfering with his view.
He sought to have the trees trimmed or removed so his view was
maintained.

The
trial court found the quoted provision of the CC&R’s to be ambiguous and
admitted parol evidence to aid in their interpretation. It concluded that the developer contemplated,
when it planted trees, that they would inevitably grow and block views. Accordingly, the trial court awarded judgment
to defendants.

Plaintiff
appeals, contending the trial court erred in finding the provision ambiguous
and in admitting parol evidence. We
agree and reverse the judgment.

I

FACTS

Prior
to trial, the parties stipulated that the parties own and reside at their
specific homes and that “the Becerra Property is adjacent and to the rear of
the Bailey Property; to wit, the back yard of the Becerra Property abuts to the
back yard of the Bailey property.”

Plaintiff
testified that he was the original owner of his home and had lived there 15
years. The two properties are on a
hillside so that plaintiff’s back yard is approximately 24 feet above
defendants’ back yard. As a result,
plaintiff has a panoramic view from his back yard. In plaintiff’s opinion, his home and the
adjoining properties were designed to have a view from the back yard. He bought the property primarily because of
the view. He also removed a wrought iron
fence along his back property line and installed a wall with glass panels to
further improve his view. A landscaped
slope runs from the back of plaintiff’s property to the middle of defendants’
back yard.

Defendants
were not the original owners of their property, but they had lived there since
January 2010. A previous owner had
removed the landscaping installed by the developer and planted 18 Queen palm
trees on the property. A subsequent
owner had not maintained the property, and the trees were not cared for; when
defendants moved in they began watering the trees, and the trees began to grow
rapidly. Three of the palm trees were
planted on the top of the slope within 10 feet of the property line. At the time of trial, the trees were
approximately 15 feet tall. Six palm
trees were growing lower down on the slope.
Numerous photographs were admitted to show the location of the palm
trees and their effect on plaintiff’s view.
Carmen Becerra testified that they trimmed the palms regularly, and she
felt that this was compliant with the CC&R’s.

Fausto
Reyes, a registered landscape architect and consultant to the City of Corona, testified
that approximately 16 palm trees were either blocking plaintiff’s view or would
grow to block his view. The average
Queen palm typically grows more than 30 or 40 feet high. The trunk will grow to 16 inches in diameter,
and the canopy will be 20 to 30 feet wide.
He also testified that if you top a palm tree you will probably kill it.

A
neighbor, Todd Jasper, testified for the defense that the homes were originally
landscaped by spraying a hydro mixture on the slopes and planting some
trees. His yard was planted with four
pine trees, three purple leaf plum trees, and two other green leafy trees. The pine trees were removed after 10 years,
and they were then 30 feet high.

Jasper
then testified that the developer, Centex Homes, gave him a disclosure
statement when he purchased the property.href="#_ftn2" name="_ftnref2" title="">[2] According to Jasper, it stated: “If you’re purchasing a lot which you
perceive as having a view, you should be aware that the view as seen from your
lot . . . is not guaranteed. Existing
views will be altered or impaired by future construction, by seller or by other
developers, by growth of vegetation or trees, by fences, or by other factors
not presently known.”

Another
neighbor, Donald Fuller, testified over objection that his downslope neighbor
had a pine tree which had grown to be 25 feet above the level of his yard. Commenting on this testimony, the trial court
said: “[I]t seems to me that it would be
surprising if the developer would plant all these pine trees that would grow to
the level that he’s describing around that neighborhood if that wasn’t
contemplated in the CC&R’s.”

The
court then asked: “Why would the
developer even plant trees like that if they weren’t serious about the
description they gave you in their disclosure statement?” Plaintiff’s counsel responded: “To sell houses. That’s all they care about. And they do that disclosure statement to make
it clear that they don’t have any liability for what they did.”

Plaintiff
acknowledged receiving the disclosure statement when he purchased his home from
the developer. The trial court then read
extensively from Miller & Starr California
Real Estate, section 24.17 and said:
“So what I’m gathering from that is that if there is an arguable
ambiguity in the covenant restriction, things like disclosure statements,
things like conduct by the developer would be highly relevant.”href="#_ftn3" name="_ftnref3" title="">[3]

In
closing argument, plaintiff’s attorney argued that the disclosure statement
could not be used to contradict the unambiguous language of the
CC&R’s. Accordingly, counsel
concluded that the only possible interpretation of the challenged sentence in
the CC&R’s is that you can have any kind of plants or trees that you want,
but you have to trim them to protect the view.
He therefore asked the court to find that the CC&R’s were an
equitable servitude running with the land and that they bound defendants and
protected plaintiff.

Defendants
argued that the CC&R’s were ambiguous because they did not restrict the
height of either trees or shrubbery.

In
rendering its decision, the trial court first noted that the operative facts
were not in dispute, and the question presented was a legal question. It then said:
“It seems to me that the CC&R’s are ambiguous. The same entity that drafted the CC&R’s
drafted the disclosure statement. The
same entity that drafted the disclosure statement planted trees that would grow
to obstruct views. The same entity that
was so concerned about the views put in wrought iron fences that actually
interfered with the view more than the trees that I’ve seen shown in these
photographs. The same entity that could
have easily drafted, as other CC&R’s have been done, that no trees shall
extend above a roof line, that no tree or shrub shall grow to a position to
where the view’s [sic] interfered
with—the easiest way would be to make it no higher than the roof lines. They did not do that.” The trial court went on to say that the
intent of the drafter was “to have trees that are trimmed consistently so that
those trimmed trees will minimally impact as much as possible the view.”

Since
the trial court found the language ambiguous, it found the parol evidence rule
to be applicable. It interpreted the language,
“‘all shrubs or the like shall be trimmed’ as not to be an absolute restriction
of having any tree that might possibly impact the view.” It therefore concluded: “I think what’s going on here is [the drafter
wants] to make sure that if you have trees, you be considerate, you make sure
you trim your trees, you keep them well.
And to the extent possible,
the views are maintained for those people who would be affected by your
trees.” (Italics added.)

II

STANDARD OF REVIEW

Since
the facts here are essentially undisputed, we agree with the trial court that
the only issue is an issue of law, i.e., the application of the law to the
undisputed facts. Accordingly, we apply
a de novo standard of review. (>Dolan-King v. Rancho Santa Fe Assn.
(2000) 81 Cal.App.4th 965, 974.)

“Where, however, the essential facts are undisputed, ‘in
reviewing the propriety of the trial court’s decision, we are confronted with
questions of law. [Citations.] Moreover, to the extent our review of the
court’s declaratory judgment involves an interpretation of the [CC&R’s]
provisions, that too is a question of law we address de novo. [Citations.]’
[Citation.]” (>Ekstrom v. Marquesa at Monarch Beach
Homeowners Assn. (2008) 168 Cal.App.4th 1111, 1121.)

III

ENFORCEMENT OF EQUITABLE SERVITUDES

The
trial court agreed with plaintiff’s counsel that the CC&R’s are equitable
servitudes that run with the land for the benefit of both parties.href="#_ftn4" name="_ftnref4" title="">[4] The development is a common interest
development under Civil Code section 1352.href="#_ftn5" name="_ftnref5" title="">[5]

Section
1354, subdivision (a) provides: “The
covenants and restrictions in the declaration shall be enforceable equitable
servitudes, unless unreasonable, and shall inure to the benefit of and bind all
owners of separate interests in the development. Unless the declaration states otherwise,
these servitudes may be enforced by any owner of a separate interest or by the
association, or by both.” (See also §
1468.)

Accordingly,
the person challenging the CC&R’s bears the burden of showing that the
challenged provision is unreasonable and
arbitrary under the circumstances. (>Dolan-King v. Rancho Santa Fe Assn.,> supra, 81 Cal.App.4th at p. 970.)href="#_ftn6" name="_ftnref6" title="">[6]

Plaintiff
relies on the seminal case of Nahrstedt,> supra, 8 Cal.4th 361. In that case, after quoting section 1354, our
Supreme Court held that “the inclusion of covenants and restrictions in the
declaration recorded with the county recorder provides sufficient notice to
permit the enforcement of such recorded covenants and restrictions as equitable
servitudes.” (Nahrstedt, at p. 379.) The
court then reviewed an amendment to section 1354 that “cloaked use restrictions
contained in a condominium development’s recorded declaration with a
presumption of reasonableness by shifting the burden of proving otherwise to
the party challenging the use restriction.”
(Nahrstedt, at p. 380.)

The
court discussed the principles governing enforcement of equitable servitudes
and concluded: “[W]hen enforcing
equitable servitudes, courts are generally disinclined to question the wisdom
of agreed-to restrictions.
[Citation.]” (>Nahrstedt, supra, 8 Cal.4th at p. 381.)
It concludes the discussion by holding that “[a]n equitable servitude
will be enforced unless it violates public policy; it bears no rational
relationship to the protection, preservation, operation or purpose of the
affected land; or it otherwise imposes burdens on the affected land that . . .
[¶] . . . far outweighs any benefit.” (>Id. at p. 382.)

Our
Supreme Court explained: “[R]ecorded CC&R’s are the primary means of achieving the
stability and predictability so essential to the success of a shared ownership
housing development. In general, then,
enforcement of a common interest development’s recorded CC&R’s will both
encourage the development of land and ensure that promises are kept . . .
. [¶]
When courts accord a presumption of validity to all such recorded use
restrictions and measure them against deferential standards of equitable
servitude law, it discourages lawsuits by owners of individual units seeking
personal exemptions from the restrictions.
This also promotes stability and predictability in two ways. It provides substantial assurance to
prospective condominium purchasers that they may rely with confidence on the
promises embodied in the project’s recorded CC&R’s.” (Nahrstedt,
supra, 8 Cal.4th at pp. 382-383.)

The
test adopted by the Supreme Court does not grant trial courts “unbridled license to question the wisdom of the
restriction. Rather, courts must enforce
the restriction unless the challenger can show that the restriction is
unreasonable because it is arbitrary, violates a fundamental public policy, or
imposes burdens on the use of the affected property that substantially outweigh
the restriction’s benefits.” (>Nahrstedt, supra, 8 Cal.4th at p. 389.)

This
is the test that the trial court failed to apply here. Instead, it parsed the sentence of the
CC&R’s in issue to determine what the drafter should have done or could
have done. This is not the correct
approach under Nahrstedt.

IV

APPLICABILITY
OF CONTRACT LAW PRINCIPLES

Plaintiff
points out that principles of contract law are also important in the
interpretation of CC&R’s. (>Frances T. v. Village Green Owners Assn.
(1986) 42 Cal.3d 490, 512; Franklin v.
Marie Antoinette Condominium Owners Assn. (1993) 19 Cal.App.4th 824, 827.)

Plaintiff
argues that the integration rule of Code of Civil Procedure section 1856
prevents parties from introducing parol evidence to vary the terms of the
integrated agreement.

Code
of Civil Procedure section 1856, subdivision (a) states: “Terms set forth in a writing intended by the
parties as a final expression of their agreement with respect to such terms as
are included therein may not be contradicted by evidence of any prior agreement
or of a contemporaneous oral agreement.”

Witkin
summarizes the integration rule as follows:
“Thus, if there has been a legally effective
act (i.e., a legally effective instrument was intended and there are no
invalidating factors such as mistake, fraud, or lack of consideration; . . .),
the exclusionary aspect of the parol evidence rule comes into operation where
the parties have adopted a writing or writings as a final and complete
expression of their understanding.
[Citations.]” (2 Witkin¸ Cal.
Evid. (5th ed. 2012) Documentary Evidence, § 66, p. 206.)

Plaintiff
argues that the plain meaning rule applies here and that it requires the
exclusion of parol evidence.
Historically, he is correct. As
Witkin explains it: “Earlier cases followed the rule that, if no ambiguity or
uncertainty is asserted, and the writing has a clear meaning on its face, parol
evidence is inadmissible to interpret it.
The underlying theory was that unless there is some ambiguity or
uncertainty there is no need for the extrinsic evidence; the plain meaning of
the words should be accepted and not disturbed by evidence showing that they
were used in a different sense.
[Citations.]” (2 Witkin, Cal.
Evid., supra, Documentary Evidence, §
80, p. 219.)

General
principles of contract interpretation support the plain meaning rule. For example, section 1644 states: “The words of a contract are to be understood
in their ordinary and popular sense, rather than according to their strict
legal meaning; unless used by the parties in a technical sense, or unless a
special meaning is given to them by usage, in which case the latter must be
followed.”

Other
contract interpretation principles are applicable. Section 1638:
“The language of a contract is to govern its interpretation, if the
language is clear and explicit, and does not involve an absurdity.” Section 1639:
“When a contract is reduced to writing, the intention of the parties is
to be ascertained from the writing alone, if possible; subject, however, to the
other provisions of this Title.”

Witkin
proceeds to discuss widespread criticism of the plain meaning rule. One way to evade application of the rule is
to contend the wording is “ambiguous.”
“The rule was often ignored in effect by first declaring the language ‘ambiguous,’
a relatively simple matter in view of the variety of meanings which legal
terminology may have. [Citations.]” (2 Witkin, Cal. Evid., supra, Documentary Evidence, § 80, p. 219.) “Accordingly, the modern tendency is
to hold that evidence is admissible to show the meaning of words used even
though no ambiguity is asserted.
[Citations.]” (>Ibid.)

The
CC&R’s here are clearly an integrated agreement, i.e., they are a writing
that was a final and complete expression of the developer’s intent. The developer’s intention to protect views is
clear. First, the section is titled
“Maintenance of views.” Second, it
specifically begins with a statement of purpose: “In order to maintain views where they occur
. . . .”

This
expressed intention, ascertained from the specific paragraph in issue, should
be interpreted in favor of the CC&R’s.
(§§ 1639, 1643.) After the
statement of intention, the paragraph states:
“All trees, shrubs or the like shall be trimmed so as not to interfere
with the view of the neighbors to the side or rear.”

We
find nothing ambiguous about these words.href="#_ftn7" name="_ftnref7" title="">[7] The section merely requires the trees and
shrubs of the downslope owner be trimmed so as not to interfere with the
upslope owner’s view. In this way, the
view is “maintained,” as intended by the developer. (CC&R’s § 3.12; §§ 1638, 1644.)

In
effect, the trial court modified the provision by inserting the words “to the
extent possible.” For example, it found
that defendants had to trim the trees.
And if they did so “to the extent possible, the views are maintained for
those people who would be affected by your trees.” The trial court also misinterpreted the
intent of the drafter of CC&R’s section 3.12 by saying: “I think it is more likely that [the drafter
wanted] to have trees that are trimmed consistently so that those trimmed trees
will minimally impact as much as possible the view.” We find, however, that there is simply no
ambiguity and no basis in the record for such a modification of the plain
language of CC&R’s section 3.12. The
intent of the section is clear: “In
order to maintain views where they occur[.]
All trees . . . shall be trimmed so as not to interfere with the
view[.]’”

Thus,
we disagree with the trial court that the provision is ambiguous in any way. However, that does not end the matter. As shown above, the general tendency is to
allow extrinsic evidence to show the meaning of the words used even if no
ambiguity is asserted.

We
therefore proceed to consider the extrinsic evidence considered by the trial
court.

Defendants
submitted evidence of the disclosure given to homeowners when they purchased
their home. Since we do not have a copy
before us, it is not clear whether it is a sales brochure or the developer’s
disclaimer. There is no evidence that it
was a recorded document that would give constructive notice to buyers.

The
disclosure clearly contradicts the recorded CC&R’s by stating that the
views are not guaranteed and may be impaired by growth of trees.

The
disclosure should not have been considered under Code of Civil Procedure
section 1856. Subdivision (a) of that
section provides: “Terms set forth in a
writing intended by the parties as a final expression of their agreement with
respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a
contemporaneous oral agreement.”
(Italics added.)

Code
of Civil Procedure section 1856, subdivision (b) states: “The terms set forth in a writing described
in subdivision (a) may be explained or supplemented by evidence of >consistent additional terms unless the
writing is intended also as a complete and exclusive statement of the terms of
the agreement.” (Italics added.)

Code
of Civil Procedure section 1856, subdivision (g) provides: “This section does not exclude other evidence
of the circumstances under which the agreement was made or to which it relates,
as defined in Section 1860, or to explain an extrinsic ambiguity or otherwise
interpret the terms of the agreement, or to establish illegality or fraud.”

Witkin
collects cases that allows parol evidence to explain the contract language,
followed by a section citing cases in which such evidence was not allowed. (2 Witkin, Cal.
Evid., supra, Documentary Evidence, §§
83, 84.) The following section
states: “Of course, parol evidence to
explain the terms of a deed will be excluded if the evidence is not relevant to
prove a meaning to which those terms are reasonably susceptible.” (>Id. at § 85, p. 228.) The disclosure here falls into the
latter category. It merely contradicts
the CC&R’s; it does not explain any alternative meaning for the clear and
unambiguous words used in section 3.12 of the CC&R’s.

Accordingly,
the disclosure should not have been considered by the trial court for any
purpose. To state the point differently,
the clear terms of the recorded CC&R’s trump the contrary language of the
disclosure. The disclosure also does not
cast any light on the intent of the developer in inserting section 3.12 into
the CC&R’s. In this case, extrinsic
evidence is not needed because the intention is clearly and unambiguously
stated in section 3.12 itself. (Civ.
Code, § 1639.)

The
second piece of extrinsic evidence
considered by the trial court is that the developer planted pine trees on
defendants’ property as part of the initial landscaping of the
development. The trial court used this
fact to find that the intent of the developer was different from the intent
expressed in section 3.12 of the CC&R’s.
As the trial court stated: “I
just can’t think that by the language of 3.12 that it was the intent of the
drafter that, first of all, either no trees be allowed or only trees
that—quote, unquote—‘can be topped’ be allowed.
I think it is more likely that they want to have trees that are trimmed
consistently so that those trimmed trees will minimally impact as much as
possible the view.”

This
is pure speculation. First, as discussed
above, the intent of the drafter, to maintain existing views, is clearly stated
in section 3.12, and that statement governs.
(§ 1639.)

Second,
we agree with the comment of plaintiff’s counsel that the developer’s interest
was to sell houses, and the disclosure statement was merely an apparent attempt
by the developer to disclaim liability when the pine trees the developer
planted grew to block views. Of course,
there is no evidence that this is the case and counsel’s argument is just as
speculative as the trial court’s statements.


Third,
there was expert testimony that defendants’ 16 palm trees “are blocking the
view and will continue to block the views as they grow out more.” As discussed below, the fact that palm trees
normally cannot be trimmed and have to be removed in order to preserve a
preexisting view provides no basis to interpret the term “all trees” in
CC&R’s section 3.12 to exclude palm trees.

In
any event, we find the fact that the developer planted pine trees is not
sufficient extrinsic evidence to explain or contradict the clear intent of
CC&R section 3.12 to maintain views by requiring the downslope owner to
trim the trees on his property as needed “so as not to interfere with the view
of” the upslope owner.

The
fact that the developer installed a wrought iron fence across plaintiff’s back
property line is even less persuasive extrinsic evidence of the developer’s
intent. Although it is obvious that the
fence interfered with the view to some extent, construction of the fence does
not show an intent to allow trees to grow unchecked, thus completely blocking
the view. On the contrary, CC&R’s
section 3.12 clearly states an intent to maintain existing views, even if the
existing views included the view of a fence.href="#_ftn8" name="_ftnref8" title="">[8]

Accordingly,
we find that the trial court should not have considered the extrinsic evidence
that contradicted the CC&R’s. But,
even if the extrinsic evidence was properly considered, it
does not assist the defendants in meeting their burden of showing that the
challenged provision is unreasonable.
Application of the parol evidence rule to challenge the integrated
agreement of the CC&R’s was improper under the circumstances here.

Finally,
plaintiff cites a factually similar case, which we find persuasive. In Ekstrom
v. Marquesa at Monarch Beach Homeowners
Association, supra, 168
Cal.App.4th 1111 (Ekstrom), a
homeowner in a beachfront development and several neighbors sued their
association, alleging that many palm trees in the development had grown to
heights exceeding the height of the rooftops, in violation of a provision of
the CC&R’s requiring all trees on a lot be trimmed so as not to be higher
than the roof. (Id. at pp. 1113-1114.) The
association had excluded palm trees from compliance with this provision because
trimming was not possible and the trees would have to be removed. (Ibid.)

The
trial court found in favor of the homeowners and the appellate court affirmed.
(Ekstrom, supra, 168 Cal.App.4th at p. 1114.)
The trial court found no ambiguity in the provision of the CC&R’s
governing trees. It therefore required
the association to enforce the CC&R’s as to all trees, including palm
trees. (Id. at p. 1120.) “In the
context of the CC&R’s, the plain meaning of the term ‘“trimmed” means
removed, as by cutting, or cut down to a required size.’” (Id.
at p. 1119.)

The
appellate court said: “Even if the Board was acting in good faith and in the
best interests of the community as a whole, its policy of excepting all palm
trees from the application of section 7.18 was not in accord with the
CC&R’s, which require all trees be trimmed so as to not obscure
views. The Board’s interpretation of the
CC&R’s was inconsistent with the plain meaning of the document and thus not
entitled to judicial deference. [Citation.]” (Ekstrom,
supra, 168 Cal.App.4th at p. 1123.)

The
Ekstrom decision is based on facts
similar to the present case, except that a homeowners association is not
involved here. But that difference is
insignificant. In the absence of an
association a homeowner can sue another homeowner to enforce the
CC&R’s. Neither an association nor
another homeowner can ignore the unambiguous language of the CC&R’s.

Accordingly,
like the Ekstrom court, we find that
the homeowner is entitled to maintenance of the view from his property, and
palm trees are not exempt from the plain language of the CC&R’s, which
applies to all trees.

V

DISPOSITION

The
judgment is reversed, and the case is remanded with directions to enter
judgment for plaintiff on his complaint (except his request for punitive
damages) and to consider any requests for attorney’s fees and costs pursuant to
section 1354, subdivision (c). Appellant
is awarded costs on appeal.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:





RAMIREZ

P.
J.



CODRINGTON

J.