Category Archives: Case Law: Architectural Control

Pacific Hills Homeowners Association v. Prun

(2008) 160 Cal.App.4th 1557

[Architectural Control; Statute of Limitations] The 5 year statute of limitations under Code Civ. Pro. § 336 applies to both recorded restrictions as well as unrecorded restrictions such as architectural guidelines.

COUNSEL

Law Offices of Richard A. Tinnelly, Bruce R. Kermott, Aliso Viejo; Blackmar, Principe & Schmelter, Gerry C. Schmelter, San Diego, and Christina B. VonBehren, for Plaintiff and Appellant.
Law Office of Julie M. McCoy and Julie M. McCoy, Newport Beach, for Defendants and Appellants.

OPINION

Defendants Jon L. Prun and Linda L. Prun appeal from a judgment requiring them to reduce the height of or move a gate and a fence in the front of their residence that violates the height and setback requirements in the covenants, conditions, and restrictions and architectural guidelines adopted by plaintiff Pacific Hills Homeowners Association. They contend the action was not subject to a five-year statute of limitations in Code of Civil Procedure section 336, subdivision (b) (all further statutory references are to this code unless otherwise noted) as the court determined but was barred by the four-year statute of limitations in section 337.

They also assert that, in any event, the action was barred by laches and waiver, and the court erroneously excluded certain evidence of other nonconforming use. We disagree with each contention.

Plaintiff filed a cross-appeal claiming that portion of the judgment requiring it to pay for two-thirds of the cost of relocation of defendants’ gate upon satisfaction of certain conditions was erroneous. It did not address the substance of that issue, however, arguing that because defendants had not satisfied the conditions, its own appeal was moot. We decline plaintiffs request to clarify the effect of that part of the judgment.

Thus, we affirm the judgment.

FACTS

Defendants’ home is located in a planned community subject to a Declaration of Covenants, Conditions and Restrictions (CC & R’s) and governed by plaintiff. The CC & R’s allow plaintiff to adopt reasonable rules and incorporate them into the CC & R’s. The CC & R’s require “the prior written approval of the Architectural Committee” (committee) before construction of any improvement, including a “fence or wall” and also mandate submission of plans to the committee and its approval before construction can begin. Plaintiff also adopted Architectural Guidelines (guidelines) that limit fences to 6 feet in height unless they are within 20 feet of the front property line, in which case the maximum height is 3 feet.

In late 2000 defendants decided to erect a mechanical gate, connected to a fence and pilasters, across their driveway. Jon testified they reviewed the [1561] copy of the CC & R’s and guidelines they received when they purchased the home and found no mention of setbacks. Jon also testified that after this action was filed he noticed that the copy of the guidelines they received upon purchase of their home contained only odd-numbered pages; they were missing the page containing the setback requirements. (We note that the guidelines and amended guidelines in the record show the setback requirement was on odd-numbered pages.)

After reviewing those documents, Jon then called the property management company and asked about setbacks. Jon testified that Bill Scales, the Architectural Administrator, told him that neither plaintiff nor the City of Mission Viejo had setback requirements. According to Jon, Scales only said that color was critical and the gate should be of high quality. Scales assured him “there won’t be any problem” or “there shouldn’t be any problem” after Jon told him a professional contractor was installing the gate. Jon also testified Scales said he would fax the forms defendants needed for plaintiffs approval and that permission should take only a couple of weeks. Jon testified he understood the approval was “basically a formality.”

Scales testified he did not remember the call and would not have checked a city setback requirement for a homeowner because he had no copy of those codes.

In the meantime defendants started building the gate. When Scales learned of it he sent a letter informing them construction violated the CC & R’s because prior approval was required; he asked for plans to be submitted. In late November Jon completed the forms he had received from Scales and sent them both to him and to the committee; he did not enclose plans.

In January 2001, plaintiff sent a letter to defendants asking for plans. Defendants re-sent their application with a drawing that did not show the specifics of the gate as required by the CC & R’s. Consequently, plaintiff returned it stamped, “Disapproved as submitted” (capitalization omitted) with another request for defendants to “[s]ubmit clear drawings….” Defendants then did so, showing the gate within three feet of the front property line. In mid-February the committee denied approval of defendants’ proposed fence and gate because it did not comply with the setback requirements. But defendants had already completed the gate. [1562]

In late July and August 2001 plaintiff sent letters to defendants, first asking them to comply with the CC & R’s and then inviting them to attend a board meeting in October. Thereafter plaintiff sent a letter giving defendants a November deadline for them to move the gate to comply with the setback requirements and advising it would assess a $100 fine if they did not; plaintiff also invited them to a meeting in December to “discuss the situation.”

At some point plaintiff contacted the City of Mission Viejo advising it of the situation. In May 2002, the city sent written notice to defendants that their gate violated its setback requirements. Between November 2002 and January 2003, plaintiff sent four more letters assessing fines and inviting defendants to meetings, which they attended.

In March 2003, plaintiffs lawyer sent a letter to defendants, stating it was plaintiffs “last effort to resolve th[e] matter” and insisting that the gate be moved back. It gave defendants 10 days to advise whether or not they intended to comply; if not plaintiff would take legal action. Jon testified he called the lawyer and explained defendants'”side of the … story.” He also testified plaintiffs counsel told him he thought that sounded “logical” and “plausible”; he wanted to research the matter and said if he did not get back to defendants, they should “consider the matter closed.”

Thirteen months later in April 2004 a different lawyer sent a letter to defendants inviting them to submit the matter to alternative dispute resolution and advising that if they did not respond in 30 days, plaintiff “may authorize” filing of a lawsuit. When Jon called that lawyer he was told, “we’re going to make you move the gate.” Nothing happened until almost one year later, in March 2005, when plaintiffs lawyer sent another letter suggesting mediation.

When defendants did not mediate, in April 2005 plaintiff filed this action for breach of the CC & R’s, nuisance, and declaratory and injunctive relief. The injunction sought was based on violation of the setback requirements, not defendants’ failure to obtain prior approval of the project. The case went to trial only on the injunction cause of action.

The court found in favor of plaintiff. It ruled, in part, that the five-year statute of limitations in section 336, subdivision (b) applied and thus the action was filed timely. The court also found defendants had not proven their other affirmative defenses of estoppel, laches, or waiver. [1563]

The judgment ordered defendants to lower their fence, gates, and pilasters to a maximum of 3 feet, or, in the alternative, to set them back to at least 20 feet from the front property line. In that case, the height could be up to six feet. If defendants chose the latter alternative and gave plaintiff timely written notice of their decision, plaintiff would be required to pay two-thirds of the cost of the relocation. If defendants did not timely give notice, they had to pay the entire cost of the ordered corrections. If defendants gave such notice and plaintiff did not agree in writing to pay two-thirds of the cost, the injunction would dissolve and defendants would be allowed to keep the gates and fence as built.

DISCUSSION

1. Applicable Statute of Limitations

Plaintiff filed this action more than four years but less than five years after defendants erected the gate. Defendants contend that section 336, subdivision (b), which is a five-year statute of limitations, applies only to recorded documents, in this case, CC & R’s, and not to unrecorded rules and regulations or guidelines of homeowners associations such as are at issue here. We disagree.

Section 336, subdivision (b) provides for a five-year statute of limitations for “[a]n action for violation of a restriction, as defined in Section 784 of the Civil Code.” Civil Code section 784 states, “`Restriction,’ when used in a statute that incorporates this section by reference, means a limitation on, or provision affecting, the use of real property in a deed, declaration, or other instrument, whether in the form of a covenant, equitable servitude, condition subsequent, negative easement, or other form of restriction.”

Defendants maintain that, for this definition to apply, a restriction must be recorded. They advance several grounds for this assertion, including the plain language of the statute and its legislative history, the rule that statutes should be harmonized, the absence of the setback restriction from the recorded CC & R’s, and the principle of ejusdem generis. Based on our reading of the plain language of section 336, subdivision (b) and Civil Code section 784, we conclude section 336, subdivision (b) does not govern merely recorded restrictions but applies to unrecorded restrictions as well. [1564]

“`When interpreting statutes, “we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law” “`…'” giving them their usual and ordinary meaning and construing them in context. [Citation.] If the plain language of the statute is clear and unambiguous, our inquiry ends, and we need not embark on judicial construction. [Citations.] If the statutory language contains no ambiguity, the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs.’ [Citation.]” (Stephens v. County of Tulare (2006) 38 Cal.4th 793, 801-802, 43 Cal. Rptr.3d 302, 134 P.3d 288.) This is so “`”`whatever may be thought of the wisdom, expediency, or policy of the act.'”‘ [Citations.]” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632, 59 Cal. Rptr.2d 671, 927 P.2d 1175; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733, 3 Cal.Rptr.3d 636, 74 P.3d 737.)

A restriction, as defined in Civil Code section 784, is a limitation on the use of real property, as set out in several specified types of documents, including covenants, equitable servitudes, conditions subsequent, and negative easements, with a catchall description at the end applying to any “other form of restriction.”

Nothing in the language states this last category of restriction must be recorded. The fact that all enumerated documents are generally recorded does not compel such an interpretation. Had that been the intent of the Legislature, it could have easily used the language any “other form of recorded restriction.”

But it did not, and it is not within our province to do so in the guise of interpretation, even if that seems like a more logical or better policy. If such was its intent, the Legislature has the ability and opportunity to amend the language to make this clear.

Because we determine the plain meaning of the statute based on its language, we do not resort to extrinsic aids to construe its meaning. (Beat Bank, SSB v. Arter & Hodden, LLP (2007) 42 Cal.4th 503, 508, 66 Cal.Rptr.3d 52, 167 P.3d 666.) Thus, we need not address defendants’ other arguments as to the meaning of the statutes.

2. Laches

Defendants also assert that plaintiffs claim is barred by laches. “`The defense of laches requires unreasonable delay plus either acquiescence in the [1564] act about which plaintiff complains or prejudice to the defendant resulting from the delay.’ [Citation.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68, 99 Cal.Rptr.2d 316, 5 P.3d 874.) Defendants argue plaintiffs more than four-year delay in filing the action was “patently unreasonable” and that the delay shows plaintiff acquiesced in defendants’ placement of the gate. It points to three 1-year periods in which plaintiff did virtually nothing with respect to defendants’ gate.

There is no question plaintiff delayed in enforcing the setback restriction. Despite the spin it tries to put on the facts, plaintiffs alleged “sheer volume” of attempts and “continued … efforts to bring [defendants] into compliance” do not explain those lengthy gaps in its contacts with defendants or its extended inactivity. We do not condone this course of conduct and in the right fact situation, which we do not define, such delays could support a finding of laches.

But we agree with the trial court that defendants cannot show prejudice. They began building the gate before they submitted an application for approval of their project and before the architectural committee got involved. The evidence showed construction was finished by as early as November 2000 and no later than February 2001. Thus, it would not have mattered whether plaintiff was diligent.

Nor, despite the delays, can defendants show plaintiff acquiesced. Plaintiff made its opposition to the gate known from the moment it was built, and it never changed its position or communicated to defendants it had changed its position. And, importantly, Jon testified that from February 2001 until the complaint was filed, he understood that plaintiff “appeared to want the gate moved.” Thus, the defense of laches must fail.

3. Waiver

Defendants also assert plaintiff waived its right to enforce the guidelines because it did not apply them fairly, reasonably, or uniformly. They contend plaintiff had the burden of proof to show it in fact did enforce the guidelines fairly, and the court erred in not requiring that plaintiff meet that burden but instead put the burden on defendants to prove an affirmative defense. Finally, defendants claim the court erred by excluding defense evidence that showed plaintiff had arbitrarily allowed a nonconforming use by another property owner. None of these arguments persuades.

“When a homeowners’ association seeks to enforce the provisions of its CCRs to compel an act by one of its member owners, it is incumbent upon it to show that it has followed its own standards and procedures prior to [1566] pursuing such a remedy, that those procedures were fair and reasonable and that its substantive decision was made in good faith, and is reasonable, not arbitrary or capricious. [Citations.]” (Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, 772, 224 Cal.Rptr. 18.) “The criteria for testing the reasonableness of an exercise of such a power by an owners’ association are (1) whether the reason for withholding approval is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner. [Citations.]” (Laguna Royale Owners Assn. v. Darger (1981) 119 Cal. App.3d 670, 683-684, 174 Cal.Rptr. 136.)

Here there was evidence plaintiff followed its ordinary procedures in attempting to enforce the setback requirement. It sent letters demanding that defendants comply with the guidelines, invited defendants to meet with the board, imposed fines, and finally filed suit.

Defendants complain that their nextdoor neighbors, Anthony and Kathleen Garcia, built in violation of the guidelines but plaintiff did not sue them to compel compliance with the architectural rules. Thus, they conclude, plaintiff lost its right to enforce the restrictions as to defendants. The Garcias obtained plaintiffs approval to build pilasters within the 20-foot setback area. But during construction, which occurred six years before defendants’, they apparently built their pilasters six feet high in violation of the guidelines. Plaintiff was unaware that had occurred until defendants pointed it out during the pendency of this dispute.

At that point plaintiffs committee sent letters to the Garcias asking them to modify the pilasters to conform to the guidelines, and the committee and the management company discussed the violation. Plaintiff determined that the Garcias’ pilasters were “not as obtrusive as [defendants’] gate was.” It also concluded, as its expert, an architect and engineer, testified that the Garcias’ pilasters are only a “minor obstruction” and therefore not as dangerous, compared to defendants’ gate, which is a safety hazard.

Although this is not overwhelming evidence, it met plaintiffs burden of proof to show it did address the Garcias’ violation and did not act unreasonably or unfairly in not suing them as it did defendants. Thus, the court did not improperly shift the burden of proof to defendants’ to prove an affirmative defense,

“[E]nforcement of the restriction must be in good faith, not arbitrary or capricious, and by procedures which are fair and uniformly applied. [Citation.] The framework of reference, as the court made clear, is not the [1567] reasonableness specific to the objecting homeowner, but reasonableness as to the common interest development as a whole. [Citation.]” (Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600, 1610, 47 Cal. Rptr.2d 783.) The evidence shows plaintiff took into account the relative safety of the two different structures, thus evaluating them in light of the entire development, in deciding how to proceed.

Defendants argue they had evidence of another homeowner’s violation of the guidelines that would support their waiver argument but the court erroneously excluded it. But nothing in the record shows defendants made an offer of proof, as was their burden, nor does it give us any information about the particulars of the evidence such that we could determine whether it was error to exclude it. Magic Kitchen LLC v. Good Things Internal, Ltd. (2007) 153 Cal.App.4th 1144, 1164-1165, 63 Cal.Rptr.3d 713.)

4. Plaintiffs Appeal

Plaintiff filed, a cross-appeal, claiming the court abused its discretion in ordering it to pay for two-thirds of the cost of moving defendants’ gate. It maintains there was no evidence the cost of relocating the gate would “cost twice” the amount plaintiffs expert testified to. Plaintiff misstates the court’s decision.

In its tentative ruling the judge did note it was “very likely it will cost appreciably more than [the expert’s] estimate.” But its ruling was not based on evidence of the cost. The tentative stated it was because of “plaintiffs sloppiness in not pursuing this much more promptly….” Injunctions are based on equity (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1166-1167, 42 Cal.Rptr.3d 191), and we see no abuse of discretion in the result the court fashioned. (See City of Vernon v. Central Basin Mun. Water Dist. (1999) 69 Cal. App.4th 508, 516, 81 Cal.Rptr.2d 650.)

Plaintiff asserts that its appeal “is apparently moot” because defendants did not timely elect to move the gate back at least 20 feet from the property line, and asks for a “clarification of the effect of the passage of [the] time lines” set out in the judgment. We decline to do so. There is nothing in the record to show what occurred after judgment was entered with respect to the gate. Nor do we give advisory opinions. (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1126, 278 Cal.Rptr. 346, 805 P.2d 300.) [1568]

DISPOSITION

The judgment is affirmed. In the interests of justice, the parties shall bear their respective costs on appeal.

WE CONCUR: O’LEARY and FYBEL, JJ.

Ironwood Owners Association IX v. Solomon

(1986) 178 Cal.App.3d 766

[Architectural Control; Enforcement] A HOA must show that it has followed its own standards and procedures when taking action to enforce violations of its governing documents.

Erwin & Anderholt and Michael J. Andelson for Defendants and Appellants.
Guralnick, McClanahan & Zundel, Wayne S. Guralnick and Judith L. Pilson for Plaintiff and Respondent.

OPINION
KAUFMAN, J.

Defendants Bernard and Perlee Solomon (Solomons) appeal from a summary judgment in favor of plaintiff Ironwood Owners Association IX (Association). The judgment granted the Association a mandatory injunction compelling the removal of eight date palm trees from the Solomons’ property. The Association was also granted declaratory relief, the court finding the Solomons in violation of the Association’s declaration [769] of covenants, conditions and restrictions (CCRs) for having planted the date palm trees without previously filing a plan with and obtaining the written approval of the Association’s architectural control committee.

Facts^{[FN 1]}

The Solomons purchased a residential lot in the Ironwood Country Club, a planned unit development, in March 1979. They do not dispute that they bought the property with full notice of the CCRs, which were duly recorded in Riverside County in December 1978.

The date palm trees in question were planted sometime during July 1983 and have remained there since. The Solomons have admitted and it is therefore undisputed that they did not file a plan regarding the palm trees with the Association’s architectural control committee and accordingly never received a permit or approval for the landscaping addition.

The Association is, pursuant to section 1.02 of the CCRs, “a non-profit California corporation, the members of which [are] all of the several Owners of the Real Property.” The Association’s members elect a board of directors to conduct the Association’s business affairs. Under section 2.04^{[FN 2]} the board has the power to “enforce all of the applicable provisions” of the Association’s bylaws, its articles of incorporation, and the CCRs (subd. (a)), to “delegate any of the powers or duties imposed upon it herein to such committees, officers or employees as the Board shall deem appropriate” (subd. (e)), and to “take such other action and incur such other obligations … as shall be reasonably necessary to perform the Association’s obligations hereunder or to comply with the provisions or objections [sic] of [the CCRs]” (subd. (i)).

The architectural control committee is a body of three persons first appointed by Silver Spur Associates, the original owner and conveyor of the property; committee vacancies are now filled by the board of directors. The following provisions from the CCRs describe the powers and duties of and procedures to be followed by the architectural control committee:

“4.02. Duties of architectural control committee. All plans and specifications for any structure or improvement whatsoever to be erected on or moved upon or to any Residential Lot, and the proposed location thereof on any such Residential Lot, and construction material, the roofs and exterior [770] color schemes, any later changes or additions after initial approval thereof, and any remodeling, reconstruction, alterations or additions thereto on any such Residential Lot shall be subject to and shall require the approval in writing, before any such work is commenced, of the Architectural Control Committee.

“4.03. Submission of Plans. There shall be submitted to the Architectural Control Committee two complete sets of plans and specifications for any and all proposed Improvements to be constructed on any Residential Lot, and no structures or improvements of any kind shall be erected, altered, placed or maintained upon any Residential Lot unless and until the final plans, elevations and specifications therefor have received such written approval as herein provided. Such plans shall include plot plans showing the location on the Residential Lot of the building, wall, fence or other structure proposed to be constructed, altered, placed or maintained thereon, together with the proposed construction material, color schemes for roofs, and exteriors thereof, and proposed landscape planting.

“4.04. Approval of Plans. The Architectural Control Committee shall approve or disapprove plans, specifications and details within thirty days from the receipt thereof or shall notify the Owner submitting them that an additional period of time, not to exceed thirty days, is required for such approval or disapproval. Plans, specifications and details not approved or disapproved, or for which time is not extended within the time limits provided herein, shall be deemed approved as submitted. One set of said plans and specifications and details with the approval or disapproval of the Architectural Control Committee endorsed thereon shall be returned to the Owner submitting them and the other copy thereof shall be retained by the Architectural Control Committee for its permanent files. Applicants for Architectural Control Committee action may, but need not, be given the opportunity to be heard in support of their application.

“4.05. Standards for Disapproval. The Architectural Control Committee shall have the right to disapprove any plans, specifications or details submitted to it if: (i) said plans do not comply with all of the provisions of [the CCRs]; (ii) the design or color scheme of the proposed building or other structure is not in harmony with the general surroundings of the Real Property or with the adjacent buildings or structures; (iii) the plans and specifications submitted are incomplete; or (iv) the Architectural Control Committee deems the plans, specifications or details, or any part thereof, to be contrary to the best interest, welfare or rights of all or any of the other Owners.”

[771] Discussion

1. CCRs Require Submission of Landscaping Plan

(1a) We have concluded the court ruled correctly that the CCRs require the submission of a plan to the architectural control committee for substantial landscaping changes such as the planting of eight tall date palm trees. Section 4.02 gives the committee power and duty to review “additions” to residential lots and we interpret this term broadly to include any substantial change in the structure and appearance of buildings and landscapes. We note that in drafting the CCRs, the original conveyor of the subdivision property included section 8.02(b) which provides for liberal construction of its provisions.^{[FN 3]} (See also Civ. Code, § 1370 [formerly Civ. Code, § 1359].) Furthermore, “proposed landscape planting” is specifically enumerated in section 4.03 as an item to be described in plans for such additions filed with the committee, which clearly shows the committee was to take landscaping into account when it weighed the esthetic aspects of plans it received.

(2) (See fn. 4.), (3) Because no extrinsic evidence bearing on the interpretation of these provisions of the CCRs was shown to exist,^{[FN 4]} this question was solely one of law (Estate of Dodge (1971) 6 Cal.3d 311, 318 [98 Cal. Rptr. 801, 491 P.2d 385]) and was therefore properly determined by the court on summary judgment. (See Milton v.Hudson Sales Corp. (1957) 152 Cal. App.2d 418, 433 [313 P.2d 936].) (1b) The court’s declaratory conclusion that the Solomons were and are required under the CCRs to submit a plan to the architectural control committee proposing the addition of the eight date palm trees will be affirmed.

2. Association’s Request for Injunction Does Pose Questions of Material Fact

The Association’s request for a mandatory injunction compelling the removal of the Solomons’ palm trees was in effect a request to enforce an administrative decision on its part disapproving the palm trees as not meeting the standards set forth in section 4.05 of the CCRs. That this is so is [772] demonstrated by the final letter sent by the Association’s counsel to the Solomons demanding removal of the palm trees: “Despite the provisions [of the CCRs] referenced above, you unilaterally installed the date palm trees on your property, substantially changing the uniform development, harmony and balance of the improvements within the Association. The fact that you did not obtain approval from the Architectural Control Committee is not even at issue.” (Italics added.)

(4a) Despite the Association’s being correct in its contention the Solomons violated the CCRs by failing to submit a plan, more was required to establish its right to enforce the CCRs by mandatory injunction.^{[FN 5]} (5) When a homeowners’ association seeks to enforce the provisions of its CCRs to compel an act by one of its member owners, it is incumbent upon it to show that it has followed its own standards and procedures prior to pursuing such a remedy, that those procedures were fair and reasonable and that its substantive decision was made in good faith, and is reasonable, not arbitrary or capricious. (Cohen v. Kite Hill Community Assn. (1983) 142 Cal. App.3d 642, 650-651 [191 Cal. Rptr. 209], and cases there cited; Laguna Royale Owners Assn. v. Darger (1981) 119 Cal. App.3d 670, 683-684 [174 Cal. Rptr. 136]; cf. Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 550 [116 Cal. Rptr. 245, 526 P.2d 253]; Lewin v. St. Joseph Hospital of Orange (1978) 82 Cal. App.3d 368, 388 [146 Cal. Rptr. 892]; also cf. Code Civ. Proc., § 1094.5.)

“The criteria for testing the reasonableness of an exercise of such a power by an owners’ association are (1) whether the reason for withholding approval is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner.” (Laguna Royale Owners Assn. v. Darger, supra, 119 Cal. App.3d 670, 683-684.)

(4b) Several questions of material fact therefore remained before the trial court when it granted summary judgment in this case. First is the question whether the Association followed its own procedures as set forth in the CCRs. According to the CCRs the Association is governed by a board of directors, but there is nothing in the record showing any decision in respect to this matter by the Association’s board of directors. Secondly, the record does not document and the parties do not indicate that the architectural [773] control committee ever met to consider whether or not the Solomons’ palm trees violated the standards set forth in section 4.05 of the CCRs. The record contains no indication that either the board or the architectural control committee made any findings, formal or informal, as to whether the palm trees met the standard in section 4.05 upon which the disapproval of the palm trees was apparently based.

There is some indication in the record that the Association attempted to assess the esthetic impact of the palm trees on the community. The matter was discussed at several meetings, members of the board communicated in writing and over the phone with Bernard Solomon, and at least two “polls” were conducted to elicit community opinion. As a matter of law, however, these acts on the part of the Association without appropriate decisions by the governing board or the proper committee did not constitute a reasonable application of the CCRs to the palm trees dispute. The CCRs carefully and thoroughly provide for the establishment of an Architectural Control Committee and impose upon it specifically defined duties, procedures and standards in the consideration of such matters. The record as it stands discloses a manifest disregard for these provisions: whatever decision was made does not appear to be that of the governing body or the committee designated to make the decision; no findings of any sort bridge the analytic gap between facts and the conclusions of the decisionmaker, whoever that was; and the record provides no means for ascertaining what standard was employed in the decisionmaking process.^{[FN 6]}

(6) To be successful on a motion for summary judgment, the moving party must show it is entitled to judgment as a matter of law. (Baldwin v. State of California (1972) 6 Cal.3d 424, 439 [99 Cal. Rptr. 145, 491 P.2d 1121]; Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal. Rptr. 449, 398 P.2d 785].) (4c) Having failed to establish that its actions were regular, fair and reasonable as a matter of law, the Association was not entitled to a mandatory injunction on summary judgment and the trial court erred in granting that relief.

Disposition

That portion of the trial court’s judgment granting the Association declaratory relief and affirming its interpretation of the declaration of covenants, [774] conditions and restrictions (¶¶ 1 and 2) is affirmed. Otherwise the judgment is reversed. Each party shall bear its own costs on appeal.

Rickles, Acting P.J., and McDaniel, J., concurred.

[FN. 1] The facts as contained in the record are largely undisputed and are drawn from the complaint, the parties’ statements in motions, briefs and on deposition, and supporting declarations.

[FN. 2] All further citations will be to the CCRs unless otherwise noted.

[FN. 3] Section 8.02(b) provides: “The provisions of [the CCRs] shall be liberally construed to accomplish [their] purpose of creating a uniform plan for the operation of the project for the mutual benefit of all Owners.”

[FN. 4] At oral argument counsel for the Solomons indicated that in Mr. Solomon’s deposition he stated it was not his understanding that landscaping restrictions of this sort applied to the Solomons’ property or that the Solomons were required to submit plans for approval of the date palms. But evidence of Mr. Solomon’s subjective belief would have been irrelevant; the test is an objective one. (See 1 Witkin, Summary of Cal. Law (1973) Contracts, § 522, p. 445, and authorities there cited.)

[FN. 5] Even had the basis for the injunction been solely the failure to submit plans for approval, the record would still be deficient. There is nothing showing final board action on that basis either. Moreover, had that been the sole basis, the injunction should properly have been in the alternative, e.g., either to remove the trees or submit a plan. Here the order was unconditional and absolute.

[FN. 6] From comments made at oral argument it may appear that these things were in fact done and are simply not reflected in the record. That of course may be properly shown in subsequent proceedings.

Ryland Mews Homeowners Association v. Munoz

(2015) 234 Cal.App.4th 705

[Architectural Control; Nuisances; Hardsurface Flooring] A HOA has the authority to place restrictions on the type of flooring that may be installed in a homeowner’s unit in order to prevent the creation of nuisances.

Plastiras & Terrizzi, Michael Patrick Terrizzi; and Mariam Smairat for Plaintiffs and Respondents.
Ruben Munoz, in pro. per.; and John M. Wadsworth for Defendant and Appellant.

OPINION

ELIA, Acting P. J. —

In this dispute between defendant Ruben Munoz and plaintiff Ryland Mews Homeowners Association (HOA or Association), plaintiff obtained a preliminary injunction requiring Munoz to remedy the unauthorized modification of the flooring in his upstairs condominium unit to reduce the transmission of noise to the unit below. Defendant contends that the superior court improperly balanced the prospective harm to each party and erroneously concluded that plaintiff would prevail at trial. We find no abuse of discretion and will therefore affirm the order.

Background

When defendant and his wife moved into unit No. 322 of the subject property in February 2011, he replaced the carpets with hardwood floors to accommodate his wife’s severe dust allergy. After the installation, Resty Cruz and David Yborra, occupants of the unit below, began to experience “sound transfer” through the floor. Before defendant’s occupancy Cruz and Yborra had never had any problems with sound transmission from above. But after February 2011 the noise from upstairs at all hours of the day and night became “greatly amplified” and “intolerable,” so that Cruz and Yborra found it difficult to relax, read a book, watch television, or sleep.

On November 28, 2011, Susan Hoffman, an employee of the firm that provided property management services for the Association, wrote to defendant, notifying him that his alteration of the flooring appeared to have been made without prior approval of the HOA. Hoffman requested a copy of the written approval in the event that the property management files were incomplete. Defendant did not respond within the 30 days Hoffman had given him, so on January 31, 2012, with authorization from the HOA board of directors, Hoffman wrote to defendant again, this time requesting alternative dispute resolution (ADR) under the Davis-Stirling Common Interest Development Act, Civil Code former section 1369.530 (now Civ. Code, § 5935).^{[FN. 1]} [708] Included in the letter was the text of former section 1369.530, which expressly allowed defendant 30 days in which to accept or reject ADR; after that period, the request was to be deemed rejected. (Former § 1369.530, subd. (c).) Defendant still did not respond.

Plaintiff brought this action on July 12, 2012, seeking an injunction and declaratory relief. Plaintiff alleged that defendant had violated the restrictions applicable to all residents at the time of the floor installation. On September 28, 2012, plaintiff applied for a preliminary injunction, “restraining and enjoining” defendant from “[m]aintaining hardwood flooring” and from violating other HOA restrictions. Attaching declarations from Hoffman, Cruz, and Yborra, plaintiff alleged that without the requested injunction, adjacent homeowners would continue to suffer “great and immediate irreparable harm in that Defendant’s hardwood floors create an acoustic nuisance, both violating the neighboring owner’s sense of quiet enjoyment, but also [sic] reducing property values for all owners within the Association.” Plaintiff further asserted that it was “inevitable” that it would ultimately prevail in the action and that compliance with the HOA rules would be of only “moderate” cost to defendant.

Defendant opposed the motion, contending that hardwood floors were necessary in his home because his wife was severely allergic to dust; consequently, removing the floors and installing new floors not only would be expensive but would endanger his wife’s health. He found the likelihood of plaintiff’s success on the merits to be “questionable” and maintained that no irreparable harm had been shown. Both defendant and his wife, Elena Delgado, submitted declarations describing Delgado’s medical condition. Defendant also stated that he had received no complaints about noise between the time of installation in February 2011 and the notice of November 28, 2011.

On December 12, 2012, defendant moved to strike the complaint, enter judgment on the pleadings, and refer the matter to ADR. Defendant contended that plaintiff had failed to file a certificate stating that the ADR requirements set forth in former section 1369.530 had been met or waived. The court granted defendant’s motion to strike as authorized by former section 1369.560, subdivision (b). It granted plaintiff leave to amend, however, and it denied defendant’s motion for judgment on the pleadings as well as his request for referral to ADR. Plaintiff then amended its complaint and submitted a certificate of compliance in accordance with former section 1369.560, subdivision (a)(2), (3).

The hearing on the injunction request took place on December 13, 2012. The court confirmed with plaintiff that it was not demanding that defendant [709] “tear up the floors,” but sought only a “proposal through a contractor” for a modification consistent with the HOA rules. Plaintiff added a request for an interim solution, that throw rugs be placed on 80 percent of the floors outside the kitchen and bath areas. The court found those suggestions reasonable and granted the request. Its written order, however, was not filed until April 2013.

In March 2013 defendant demurred to the first amended complaint and again moved to strike, alleging an insufficient certificate showing compliance with the statutory ADR provisions, plaintiff’s failure “to state facts demonstrating a cause of action,” and its failure “to demonstrate the necessity for injunctive relief.” This time, however, the court overruled the demurrer and denied the motion to strike, observing that factual disputes existed which should not be resolved at the pleading stage of the litigation.

On the same day, April 17, 2013, the court filed its order granting the preliminary injunction. As the language of the order informs defendant’s analysis of it as an unjustified mandatory injunction, we quote the relevant portions: “1. Any further installation of flooring or floor covering in your separate interest located at 435 N. 2nd St. #322 San Jose, CA shall be in compliance with the Association governing documents. [¶] 2. You shall reduce undue transmission of acoustic trespass or nuisance from the subject unit in violation of the governing documents. Such transmissions shall be reduced as follows: … 80% of the total flooring area, other than kitchen or bathrooms[,] must be covered with throw rugs or comparable sound[-] dampening material, in particular those areas with heavy travel such as hallways; [¶] 3. You shall present to the Ryland Mews Homeowners Association, through its Board of Directors or design review committee, a proposal for modification to the existing floor covering, such proposal to be within the specific approved guidelines and specifications for floor covering modifications established by the Association.” The modification proposal had to be submitted within 30 days. If plaintiff rejected the proposal in good faith, based on the Association’s architectural standards, defendant then had an additional 15 days to supplement or revise his proposal. If defendant’s plans were approved, defendant had 15 days thereafter to initiate construction of the modifications and 60 days to complete the construction. He then was required to notify the Association and “cooperate with a compliance inspection.” From that order granting the injunction defendant brought this timely appeal.

Discussion

Defendant raises two issues on appeal. He first contends that the court abused its discretion in granting the injunction, which he classifies as mandatory. He then asserts that the court “lacked jurisdiction” to issue the [710] injunction because the ADR request did not comply with former section 1369.530 (now § 5935). Because this second issue will be dispositive if defendant is correct, we address it first.

1. Compliance with former section 1369.530

(1) Under former section 1369.520, subdivision (a), plaintiff, as an association managing a common interest development, was prohibited from filing an action for declaratory, injunctive, or writ relief against defendant unless the parties had “endeavored to submit their dispute to alternative dispute resolution pursuant to this article.” Plaintiff could initiate this process by complying with former section 1369.530. That section required plaintiff to serve on defendant a “Request for Resolution” containing the following: “(1) A brief description of the dispute between the parties. [¶] (2) A request for alternative dispute resolution. [¶] (3) A notice that the party receiving the Request for Resolution is required to respond within 30 days of receipt or the request will be deemed rejected. [¶] (4) If the party on whom the request is served is the owner of a separate interest, a copy of this article.” (Former § 1369.530, subd. (a).)

Defendant’s grievance is directed at the last condition. He complains that he did not receive a copy of the entire article, which comprised the ADR provisions applicable to common interest developments. (See former §§ 1369.510-1369.570.) Defendant insists that in its ADR request to him plaintiff did not substantially comply with former section 1369.530, subdivision (a)(4), when it included a copy of only that statute. He then contends, “Because Mr. Munoz challenged the defect by way of a demurrer and a motion to strike, the trial court should have granted his relief.”

We are not, however, reviewing the court’s order overruling defendant’s demurrer and denying his motion to strike the first amended complaint.^{[FN. 2]} It was in that demurrer and motion to strike, not his opposition to the injunction, that defendant raised the issue of noncompliance with former section 1369.530. Furthermore, defendant cites no authority for his assertion that plaintiff’s failure to provide the entire article 2 of chapter 7 of title 6 of part 4 of division 2 in requesting ADR deprived the court of jurisdiction to issue the preliminary injunction.

Nor does he identify any prejudice attributable to plaintiff’s technical deficiency in complying with the statute. While pointing out that the “obvious purpose” of former section 1369.530, subdivision (a)(4), is to “apprise the [711] owner of important procedural rights and duties involved in the ADR process,” defendant, an attorney, has never asserted that he did not understand his rights. The letter he received requesting ADR informed him that he had 30 days to accept or reject the request, and that if he did not respond, he would be deemed to have rejected it. He implicitly rejected the request. Although the request letter contained the entire text of former section 1369.530 — including subdivision (a)(4), the provision requiring plaintiff to provide a copy of article 2 of chapter 7 of title 6 of part 4 of division 2 — defendant never complained that he had not received the entirety of that article until his motion to strike the complaint. And even then his supporting declaration did not relate any confusion about or misunderstanding of his rights. Also absent in defendant’s argument is any indication that he would have accepted plaintiff’s request if he had received the entire article governing the procedures involved in ADR between him and the Association. In these circumstances we cannot find prejudice in the omission of the remaining statutory provisions in article 2.^{[FN. 3]}

2. Merits of the preliminary injunction request

(2) In deciding whether to issue a preliminary injunction, a court must weigh two “interrelated” factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 999 [90 Cal.Rptr.2d 236, 987 P.2d 705]; Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432 [261 Cal.Rptr. 574, 777 P.2d 610].) “[T]he decision to grant a preliminary injunction rests in the sound discretion of the trial court.” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69 [196 Cal.Rptr. 715, 672 P.2d 121].) Accordingly, on appeal we review that decision for abuse of discretion. “A trial court will be found to have abused its discretion only when it has `”exceeded the bounds of reason or contravened the uncontradicted evidence.”‘ [Citations.] Further, the burden rests with the party challenging the injunction to make a clear showing of an abuse of discretion.” (Ibid.; Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1047 [151 Cal.Rptr.3d 65].)

[712] In reviewing the lower court’s ruling for abuse of discretion, we do not reweigh the evidence or evaluate the credibility of witnesses. “`[T]he trial court is the judge of the credibility of the affidavits filed in support of the application for preliminary injunction and it is that court’s province to resolve conflicts.’ [Citation.] Our task is to ensure that the trial court’s factual determinations, whether express or implied, are supported by substantial evidence. [Citation.] Thus, we interpret the facts in the light most favorable to the prevailing party and indulge in all reasonable inferences in support of the trial court’s order.” (Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 625 [43 Cal.Rptr.2d 774].)

Defendant contends that a higher level of scrutiny is called for here because the superior court’s order was “clearly a mandatory injunction,” not a prohibitory one.^{[FN. 4]} In his view the injunction “cannot bear that scrutiny because the facts presented in support of the injunction did not demonstrate that this was an extreme case in which the right to mandatory injunctive relief was clear, or that irreparable harm would ensue without the order actually granted.”

Defendant’s argument in effect asks this court to reweigh the evidence. He repeats his assertion that he did not violate the HOA restrictions; two of the alleged rules “didn’t exist when he installed the hardwood floors. He couldn’t have breached them.” He further suggests that his own opposition “cast[s] severe doubt on the credibility of the sound problems described by Mr. Yborra and Mr. Cruz.” Defendant further contests the remedy imposed in the injunction. Noting the interim measure of using throw rugs on the floors, he insists that there were “other, less draconian” remedies than “requiring Mr. Munoz to tear out his entire floor.”

Defendant’s analysis is flawed. Not only does he request an improper reweighing of the witnesses’ credibility, his contentions are premised on an inaccurate representation of the evidence presented below. Contrary to defendant’s assumption, for example, plaintiff was not relying on the 2012 HOA rules; in asking for the injunction it clearly relied on the 1993 [713] “Declaration of Restrictions,” which was in effect when defendant replaced the carpeting with hardwood floors. Section 3.3 of that document provided, “No activity shall be conducted in any Unit or Common Area that constitutes a nuisance or unreasonably interferes with the use or quiet enjoyment of the occupants of any other Condominium.” Section 3.17 more specifically stated, “No Unit shall be altered in any manner that would increase sound transmission to any adjoining or other Unit, including, but not limited to, the replacement or modification of any flooring or floor covering that increases sound transmissions to any lower Unit.” And under section 7.2(v), prior written approval had to be obtained from the architectural review committee before “[a]ny replacement or modification to any floor coverings or wall or ceiling materials or any penetration or other disturbance of any wall, floor, or ceiling, if the replacement[,] modification, penetration or disturbance could result in any increase in the sound transmissions from the Unit to any other Unit.” Defendant’s protest that he was wrongly accused of violating nonexistent restrictions is without merit.

Defendant further misrepresents the court’s order. The court did not direct him to tear out the hardwood floors; at the hearing it emphasized more than once that it did not want anyone inferring that “he’s got to go back out and tear up the floors. That’s not what I’m ordering.” What the court did order was a proposal from defendant to the board of directors or to a design review committee for modifying the floors to bring them into compliance with the guidelines established by the Association.

(3) We see no abuse of discretion in such an order, even if the injunction was of a mandatory rather than prohibitory nature subject to heightened appellate scrutiny. Indeed, the directive to find a compromise in modifying the flooring, as well as the interim remedy of using throw rugs, reflected a balanced consideration of the circumstances of everyone involved, including the residents below who were adversely affected by defendant’s violation of the noise and nuisance restrictions. The finding that defendant’s violation of the HOA rules had resulted in a continuing “great nuisance” for the occupants below was supported by substantial evidence in the declarations of Cruz and Yborra, whose credibility was for the superior court, not this court, to determine. The evidence clearly supported the court’s weighing of the relative interim harm to the parties and its implied determination that plaintiff would ultimately prevail on the merits. We must conclude, therefore, that defendant has failed to meet his burden to show that the court exceeded the bounds of reason or contravened uncontradicted evidence. Reversal is not required.

[714] Disposition

The order is affirmed.

Bamattre-Manoukian, J., and Mihara, J., concurred.

[FN. 1] All further statutory references are to the Civil Code.

[FN. 2] The challenge to this order was made by a petition for writ of mandate, which this court summarily denied. On appeal defendant duplicates the argument raised in the petition, even to the extent that he refers to himself as the real party in interest.

[FN. 3] In addition to former section 1369.530, article 2 of chapter 7 of title 6 of part 4 of division 2 consisted of (1) an explanation of the terms “`[a]lternative dispute resolution'” and “`[e]nforcement action'” (former § 1369.510); (2) the requirement that ADR be attempted before an association may file an action for injunctive, declaratory, or writ relief (former § 1369.520); (3) the requirement that ADR be completed within 90 days (former § 1369.540); (4) the tolling of the statute of limitations after the ADR request is served (former § 1369.550); (5) the requirement of a certificate of compliance (former § 1369.560); (6) referral of the action to ADR by stipulation of the parties (former § 1369.570); (7) a provision governing the court’s consideration of fees and costs (former § 1369.580); and (8) a requirement that an association provide the members with an annual summary of article 2 (former § 1369.590).

[FN. 4] “`[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.'” (Oiye v. Fox, supra, 211 Cal.App.4th at p. 1048, quoting Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446 [60 Cal.Rptr.2d 641].) Although a preliminary mandatory injunction is subject to stricter review on appeal, (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493 [83 Cal.Rptr.2d 455]), “[t]he principles upon which mandatory and prohibitory injunctions are granted do not materially differ. The courts are perhaps more reluctant to interpose the mandatory writ, but in a proper case it is never denied” (Allen v. Stowell (1905) 145 Cal. 666, 669 [79 P. 371]).

Ekstrom v. Marquesa at Monarch Beach Homeowners Association

(2008) 168 Cal.App.4th 1111

[Architectural Control; Board Powers] An association’s board of directors may not adopt rules that are in conflict with the CC&Rs.

Kulik, Gottesman, Mouton & Siegel, LLP, Thomas M. Ware II, Sharon Barber; Borton, Petrini & Conron, LLP, Matthew J. Trostler for Defendant and Appellant.
Enterprise Counsel Group, David A. Robinson, Benjamin P. Pugh; Jeffrey Lewis for Plaintiffs and Respondents.

OPINION
O’LEARY, J.-

Marquesa at Monarch Beach (Marquesa) is a common interest development governed by the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350, et. seq.). It is comprised of single family homes in the Monarch Beach development of Dana Point, many of which have ocean and golf course views. The community is managed by the Marquesa at Monarch Beach Homeowners Association (the Association), which is governed by a board of directors (the Board), and is subject to a recorded declaration of conditions, covenants, and restrictions (CC&Rs).

Plaintiffs are individual homeowners within Marquesa whose views have been blocked by many palm trees in the development (some planted by the original developer, and some planted by homeowners), which have grown to heights exceeding the rooftops. [FN. 1] Because trimming a palm tree would effectively require its removal, the Association has taken the position over the[1114]years that the CC&Rs’ express requirement “[a]ll trees” on a lot be trimmed so as to not exceed the roof of the house on the lot, unless the tree does not obstruct views from other lots, does not apply to palm trees. Accordingly, it denied the Plaintiffs’ demands that it enforce the CC&Rs and require offending palm trees be trimmed, topped, or removed.

The trial court granted the Plaintiffs’ request for declaratory relief and mandamus to compel the Association to enforce its CC&Rs. The Association appeals contending: (1) the business judgment rule precludes judicial intervention in this matter; (2) the judgment is overbroad and void for vagueness; and (3) the judgment is void because the Plaintiffs did not join as defendants the individual homeowners whose trees might be affected by the judgment. We reject the contentions and affirm the judgment.

FACTS & PROCEDURE

CC&Rs

The Marquesa CC&Rs, recorded in 1989, provide for approval of all exterior improvements by the Association’s Architectural Review Committee (ARC). Section 7.13 of the CC&Rs requires the owner of each lot to submit an exterior landscaping plan to the ARC for approval and “[e]ach Owner shall properly maintain and periodically replace when necessary all trees, plants, grass, vegetation and other landscaping improvements located on the Owner’s lot. . . . If any Owner fails to install or maintain landscaping in conformance with architectural rules . . . the [ARC] . . . shall have the right either to seek any remedies at law or in equity which it may have or to correct such condition and to enter upon such Owner’s property for the purpose of doing so, and such Owner shall promptly reimburse the [ARC] for the cost thereof. . . .”

Section 7.10 of the CC&Rs provides: “View Impairment. Each Owner, by accepting a deed to a Lot, acknowledges that grading of, construction on or installation of improvements on other property within [the development] and surrounding real property may impair the view of such Owner, and consents to such impairment.”

Section 7.18 of the CC&Rs, pertaining to plantings, provides: “Trees. All trees, hedges and other plant materials shall be trimmed by the Owner of the Lot upon which they are located so that they shall not exceed the height of the house on the Lot; provided, however, that where trees do not obstruct the view from any of the other Lots in the Properties, which determination shall be within the sole judgment of the [ARC], they shall not be required to be so[1115]trimmed. Before planting any trees, the proposed location of such trees shall be approved in writing by the [ARC] which approval shall consider the effect on views from other lots.”

Section 13.1 of the CC&Rs, regarding their enforcement, provides: “The Association, Declarant and any Owner shall have the right to enforce, by any proceedings at law or in equity, all restrictions, conditions, covenants and reservations now or hereafter imposed by the [CC&Rs]. Failure by the Association, Declarant or any Owner to enforce any covenants or restrictions contained in the [CC&Rs] shall [not] be deemed a waiver of the right to do so thereafter.” [FN. 2]

The Plaintiffs Buy View Homes

When each of the Plaintiffs purchased their homes in Marquesa, their homes had ocean and/or golf course views for which they paid a premium. Many of those views are now blocked by palm trees, which have been allowed to grow far above the height of the houses on the lots on which they are situated.

Plaintiff John Schoffel testified that when he moved into his house in 1997, he had a full ocean view that was not blocked by any trees. By 2002, he noticed palm trees growing into his view and by the time of trial, his home’s view was about 40 percent blocked by 15 to 20 palm trees.

When Plaintiff Robert Ekstrom bought his home in 1999, it had a full ocean view. At that time, no palm trees in the community exceeded the height of the rooftops. Ekstrom’s downhill neighbor, Davis Christakes–a member of the Association’s Board of Directors–had about 20 palm trees growing on his property. Ekstrom reviewed the CC&Rs before his purchase and was satisfied section 7.18 would require Christakes’ trees be trimmed or removed if they grew above the roofline and blocked Ekstrom’s view.

Plaintiff Steve Kron bought his house with a full ocean view in 2001. Concerned that palm trees might grow to interfere with that view, Kron[1116]reviewed the CC&Rs prior to closing escrow and understood that section 7.18 would protect his view from the trees.

There was evidence the Association routinely enforced section 7.18 of the CC&Rs as to other tree species, ordering homeowners to trim their trees when they exceeded the height of the house. There was also evidence that when approving an individual homeowners landscape plans in 1991, the ARC specifically did so on the condition that if any approved tree grew to a height where it became a view obstruction, the owner would be required to have the tree topped, trimmed, or removed. And on at least one occasion in 1992, the ARC advised a homeowner that palm trees (apparently planted without ARC approval), had become a view obstruction from adjoining lots and must be removed or relocated to an area where they would not interfere with neighbors views.

Christakes, who served on the Association Board for many years, owned a property on which over 20 palm trees are planted, several of which are among those now blocking the Plaintiffs’ views. He participated over the years in Board actions concerning the enforcement of section 7.18 of the CC&Rs, consistently taking the position that section 7.18 could not be enforced as to palm trees. When a resident suggested Christakes had a conflict of interest as to the applicability of section 7.18 to palm trees, Christakes told her that since he had lost his own ocean view due to construction outside the development, he did not care if she lost hers as well, and if she did not like the Board’s decision to exclude palm trees completely from enforcement under section 7.18, she could file a legal action.

View Home Owners Start to Complain

Sometime in 2002, various homeowners, including some of the Plaintiffs, saw their views being slowly eroded by growing palm trees. They demanded the Association enforce section 7.18 of the CC&Rs and require the offending trees be trimmed (or removed). The majority of the Board was of the opinion the aesthetic benefit to the entire community from the maturing and now very lush looking palm trees outweighed the value of preserving views of just a few homeowners. Since then, the community has been divided into two contentious factions: those opposing any effort to top or remove any existing palm tree and those wanting palm trees that obstruct individual homeowners’ views topped or removed.

In May 2002, the Board asked its then attorney, Gary Dapelo, for a legal opinion as to the interpretation of the CC&R’s and the Board’s responsibilities regarding enforcement of the CC&Rs as to palm trees. Dapelo opined the CC&Rs did not give any homeowner a right to maintain an existing view[1117]because section 7.10 acknowledged grading and construction of improvements could impair an existing view. Section 7.18 gave the ARC (which in this case was the Board) sole discretion to decide that a tree did not obstruct a view and thus trimming or removal of the tree was not required. Dapelo opined that consistent with that discretion, the Board could exempt all palm trees entirely from enforcement. Dapelo also concluded homeowners with palms trees had defenses they could assert to any attempt to enforce section 7.18 of the CC&Rs making it unlikely the Association would prevail in any attempt to require any palm tree be trimmed or removed.

In June 2002, the Board sent a memorandum to all homeowners advising them it had decided it would be unreasonable to require any homeowner to top or remove any palm tree in the community. It referred homeowners to a set of Board Rules and Regulations adopted in 1996, in which palm trees were specifically excluded from section 7.18 of the CC&Rs, and which stated palm trees need only be trimmed to remove dead fronds.

In 2003, a newly elected board member, who sympathized with the home owners wanting to preserve their views, prevailed upon the Board to obtain a second legal opinion. It had been discovered that Christakes had a close personal relationship with Dapelo, who was inexperienced in representing homeowner’s associations. In 2004, the Association retained attorney Richard Tinnelly to review the matter.

In May 2004, Tinnelly advised the Board that section 7.18 of the CC&Rs protected views from being obscured by trees growing above roof height on the lot where the tree was located, and the Board had no authority to exclude palm trees from application of the CC&Rs. Tinnelly advised the Board that CC&Rs section 7.10, concerning view impairment, applied to construction of physical improvements on properties, such as houses, fences, decks, but did not apply to view obstruction by trees, because that was specifically covered by section 7.18. He advised the Board it had no authority to promulgate rules and regulations that directly contradicted the express protection provided in the CC&Rs. Tinnelly advised the Board that if it wanted to continue with its policy of the wholesale exclusion of palm trees from the ambit of section 7.18, it would have to amend the CC&Rs, a prospect Tinnelly believed had little chance of success.

Tinnelly recommended to the Board that as to existing palm trees, it should ascertain which specific palm trees interfered with views and as to those trees, the Board should determine which were planted with ARC approval (as part of a homeowner’s approved landscaping plan), and which were planted without approval. As to palm trees planted with ARC approval, Tinnelly believed the homeowner might have detrimental reliance defense to forced[1118]removal of the tree and the Board would need to look at each case individually to determine the possibility of success in any attempt to have the trees removed. Tinnelly advised the Board to require trimming or removal of unapproved palm trees growing above roof lines if it determined the tree blocked a view. He believed the Board did have discretion to formulate a definition of view.

The Board then attempted to amend the CC&Rs to exempt palms trees entirely from section 7.18, but could not garner sufficient homeowner votes. After the amendment attempt failed, one Board member commented within hearing of a homeowner that the Board could adopt regulations defining what constituted a view so narrowly that no palm trees would have to be removed.

Litigation Begins

In September 2004, Ekstrom wrote to the Board again about the palm trees obstructing his view. The Board did not respond. In November, the Plaintiffs’ attorney wrote to the Board demanding it begin enforcing section 7.18 as to palm trees that were obstructing the Plaintiffs’ views, and requesting mediation of the dispute.

At a board meeting on December 9, 2004, Tinnelly again urged the Board to start enforcing section 7.18 as to palm trees. He also urged the Board to engage in mediation with the Plaintiffs. Chrisakes commented that 75 percent of the homeowners did not want any palms trees removed and the Plaintiffs should be forced to “spend their own money if they want to sue to have trees removed.” The Association refused to participate in mediation, and the Plaintiffs filed this action on December 17, 2004, seeking enforcement of the CC&Rs. The Plaintiffs’ declaratory relief cause of action sought a declaration the Association had a duty to enforce section 7.18 as to growing palm trees, and sought an injunction directing the Board to appoint a committee to make a determination as to which palm trees obstructed the Plaintiffs’ views and to direct that those trees be trimmed or removed as necessary. [FN. 3]

The Board Adopts New Rules Concerning Palm Trees

While this lawsuit was pending, the Board adopted new rules and regulations concerning the enforcement of section 7.18 of the CC&Rs as to palm trees. The 2006 rules defined “view” as used in section 7.18 as being only that which is visible from the back of the view house, six feet above ground level, standing in the middle of the outside of the house looking straight[1119]ahead to infinity, with nothing to the left or right of the lot lines being considered part of the home’s view. This definition of “view” precluded most of the Plaintiffs from claiming any view obstruction from palm trees either because of the shape of the lot (for example the Ekstroms’ lot was pie shaped with the narrow point being at the back of the lot), or because the Plaintiffs’ primary view was from the second floor of the house, not the first.

The 2006 rules provided no palm tree planted before adoption of the rules would be removed without the tree owners’ approval. If the owner of the palm tree agreed to permit a palm tree be removed, the owner of the view lot would have to pay the cost of removal. The rules set out requirements for trimming and maintenance of each palm tree species (e.g., how many fronds the palm tree could have, which direction the fronds could be pointing, how often a palm tree owner could be required to trim the tree).

Statement of Decision

In its statement of decision, the trial court concluded section 7.18 was included in the CC&Rs to preserve ocean and golf course views. There was nothing unclear or ambiguous in the terms used. The provision required all trees be trimmed down to the height of the roof of the house on the lot where it sits if the tree obstructs the view from another lot. In the context of the CC&Rs, the plain meaning of the term “‘trimmed’ means removed, as by cutting, or cut down to a required size.” The word “[obstruct] means to block from sight or be in the way of (and thus even one palm frond would block some portion of a view)” and the term “[view] means that which is visible to the naked eye while standing, sitting or lying down anywhere in one’s home, or anywhere on one’s Lot, looking in any direction one wishes.” The court rejected the restrictive definition of view as used in the 2006 rules as being in conflict with the CC&R’s.

The trial court concluded section 7.18 (trees must be trimmed) did not conflict with section 7.10 (view impairment from improvements), because the latter provision did not apply to trees or vegetation. It found requiring palms trees be trimmed or topped (even assuming trimming would result in death of the tree) was not unfair to the tree owners as they acquired their properties with knowledge of section 7.18 and its requirement their trees could not be permitted to grow to block views from other lots. The court rejected the Association’s argument section 7.18 gave the ARC discretion to allow all palm trees that exceeded the roof height of the house. That sentence gave the ARC discretion to decide whether a particular palm tree obstructed a neighbor’s view, but not to allow a palm tree that does in fact block a view to remain untrimmed.[1120]

In its statement of decision, the court rejected the Association’s various defenses. The hardship on view lot owners if views (for which they paid a premium price) were destroyed outweighed the hardship on the owner of a palm tree if required to trim or remove the trees. There was no hardship to the Association because the CC&Rs require the owners of trees bear the expense of trimming, and the possibility of lawsuits against the Association by tree owners was speculative.

The four-year statute of limitations applicable to actions to enforce CC&Rs (Code Civ. Proc., § 337) did not commence until homeowners demanded enforcement of the CC&Rs in 2002, which was when their views started becoming obscured. The court concluded there was no basis for concluding the Association was estopped to enforce the CC&Rs (by having approved landscaping plans), and there was no evidence to support a waiver (by failing to enforce the CC&Rs) defense.

The court rejected several additional affirmative defenses because they had not been pled by the Association in its answer, or raised by it during trial, but were referenced for the first time in the Association’s request for a statement of decision. They included the business judgment-judicial deference rule, the litigation committee defense, and failure to join indispensible parties. The court also rejected those defenses on the merits as well. The business judgment-judicial deference rule did not apply to acts beyond the authority of the Board. The adoption of the 2006 rules did not resolve the matter because the rules conflicted with the CC&Rs. The “litigation committee” defense was applicable only in the context of shareholder derivative suits. And owners of lots with palm trees that might eventually need to be removed were not indispensible parties to this action.

The Judgment

In its judgment, the court ordered the Association to enforce section 7.18 as to palm trees. It ruled that consistent with the CC&Rs, the ARC had discretion, to be exercised in good faith, to determine whether any particular palm tree exceeding roof height in fact blocked a view, but the Association did not have discretion to exempt from enforcement palm trees that were found to block views. The ARC’s approval of a landscaping plan that included palm trees did not exempt the palm tree from the requirements of section 7.18. The judgment defined “‘view'” as “a view of the ocean or neighboring golf course visible in any direction from anywhere on a homeowner’s lot, inside or outside one’s house.” It defined “‘obstruct'” as “to block from sight or be in the way even partially, and thus even one palm frond could block some portion of a view.” Neither the Plaintiffs nor the Association had waived their rights to enforce the CC&Rs. The individual[1121]homeowners with trees violating section 7.18 were not indispensable parties and principles of res judicata would operate to bind all homeowners to the judgment. The judgment ordered the Association “to enforce [s]ection 7.18 and to utilize every enforcement mechanism available to it under the CC&Rs and the law in order to do so.” The court retained jurisdiction to enforce the judgment including jurisdiction to appoint a special master to ensure the Association’s compliance with the judgment. The Plaintiffs were declared the prevailing parties and awarded their costs and attorney fees.

DISCUSSION

1. Standard of Review

An appealed judgment or order is presumed to be correct, and the appellant bears the burden of overcoming that presumption. (Stevens v. Owens-Corning Fiberglas Corp.(1996) 49 Cal.App.4th 1645, 1657.) The Plaintiffs’ sought and obtained declaratory relief and injunctive relief. Generally, the trial court’s decision to grant or deny such relief will not be disturbed on appeal unless it is clearly shown its discretion was abused. (Salazar v. Eastin (1995) 9 Cal.4th 836, 849-850 [injunctive relief]; Dolan-King v. Rancho Santa Fe Assn.(2000) 81 Cal.App.4th 965, 974 (Dolan-King) [declaratory relief].) Where, however, the essential facts are undisputed, “[I]n 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&Rs] provisions, that too is a question of law we address de novo. [Citations.]” (Ibid.)

2. Lamden Judicial Deference Rule

The Association contends the “judicial deference rule” adopted by the California Supreme Court in Lamden v. La Jolla Shores Clubdominium Homeowner’s Assn.(1999) 21 Cal.4th 249 (Lamden), which is an adaptation of the business judgment rule applicable to directors of corporations, precludes judicial review of any of its decisions concerning the enforcement or nonenforcement of section 7.18 of the CC&Rs as to palm trees. We disagree.

“‘The common law business judgment rule has two components–one which immunizes [corporate] directors from personal liability if they act in accordance with its requirements, and another which insulates from court intervention those management decisions which are made by directors in good faith in what the directors believe is the organization’s best interest.’ [Citations.] A hallmark of the business judgment rule is that, when the rule’s [1122] requirements are met, a court will not substitute its judgment for that of the corporation’s board of directors. [Citation.]” (Lamden, supra, 21.Cal.4th at p. 257.)

In Lamden, the owner of a condominium unit objected to the association’s board of directors’ decision to spot treat for termites rather tenting and fumigating the entire building. The Supreme Court adopted a rule it termed as analogous to the business judgment rule, holding “[w]here a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best[1123]interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development’s common areas, courts should defer to the board’s authority and presumed expertise.” (Lamden, supra,21 Cal.4th at pp. 253, 265.) The Supreme Court adopted the association’s position, at least as far as ordinary managerial decisions are concerned: “Common sense suggests that judicial deference in such cases as this is appropriate, in view of the relative competence, over that of courts, possessed by owners and directors of common interest developments to make the detailed and peculiar economic decisions necessary in the maintenance of those developments.” (Id. at pp. 270-271.)

[1]Lamden’s holding, however, is not so broad as the Association asserts. It applied the “rule of judicial deference to community association board decisionmaking” where owners “seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations’ boards of directors. [Citation.]” (Lamden, supra,21 Cal.4th at pp. 253, 260.) And Lamden did not purport to extend judicial deference to board decisions that are outside the scope of its authority under its governing documents. Lamden specifically reaffirmed the principle that “‘Under well-accepted principles of condominium law, a homeowner can sue the association for damages and an injunction to compel the association to enforce the provisions of the declaration.[Citations.]” (Id.at pp. 268-269, citing Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246-1247, Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642.)

The Plaintiffs contend the Association has waived the application of the Lamden rule of judicial deference because it is in the nature of an affirmative defense that was not pled in the Association’s answer or litigated at trial. The Association responds it was not required to raise the Lamden rule below because the rule merely embodies the proper standard of judicial review–it is not a defense at all. But the very language used in Lamden, indicates judicial deference is owed only when its has been shown the Association acted after “reasonable investigation, in good faith and with regard for the best interests of the community association and its members . . . .” (Lamden, supra,21 Cal.4th at pp. 253, 265.) A defense of good faith is necessarily factual in nature. (Everest Investors 8 v. McNeil Partners 114 Cal.App.4th 411, 432.) Just as the corporate business judgment rule, which is a rule of judicial deference to good faith management decisions of corporate boards, is a defense (see Finley v. Superior Court 80 Cal.App.4th 1152, 1157), so to is the rule of judicial deference to decisions of homeowner association boards articulated in Lamden. An affirmative defense may be waived if it is not raised below. (California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442.) The defense was raised for the first time after trial in the Association’s request for a statement of decision. The trial court correctly ruled the Association waived application of the Lamden rule of judicial deference by not raising it earlier.(2003) (2000)

Even if the judicial deference rule was not waived, we conclude the trial court correctly found it inapplicable in this instance. We consider the rule in two contexts. First, we consider whether the Association’s position prior to the institution of this litigation that it could simply exempt all palm trees from the purview of section 7.18 of the CC&Rs is entitled to judicial deference. Second, we consider whether the Board’s adoption of the 2006 rules concerning the enforcement of section 7.18 as to palm trees is entitled to judicial deference.

[2] The former issue is not so hard. We review the interpretation of the CC&Rs de novo. (Dolan-King, supra,81 Cal.App.4th at p. 974.) Section 7.18 is not at all ambiguous. It provides that “[a]ll trees, hedges and other plant materials shall be trimmed by the Owner of the Lot upon which they are located so that they shall not exceed the height of the house on the Lot . . . .” (Italics added.) If, however, the ARC determines the trees “do not obstruct the view from any of the other Lots” then the trees do not need to be so trimmed (i.e., they may exceed the height of the house).The only reasonable construction to be given to the provision is that homeowners are afforded protection from having their views obstructed by vegetation, including trees. Nothing in the CC&Rs permits the Association to simply exclude an entire species of trees from section 7.18’s application simply because it prefers the aesthetic benefit of those trees to the community. 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&Rs, which require all trees be trimmed so as to not obscure views. The Board’s interpretation of the CC&Rs was inconsistent with the plain meaning of the document and thus not entitled to judicial deference.(Lamden, supra,21 Cal.4th at pp. 253, 265.)[1124]

The Association also argues the trial court was required to defer to the Association’s decision in 2006 to adopt rules to enforce section 7.18 as to palm trees. It urges the new rules represent an appropriate balance between the communities’ interest in maintaining the palm trees and the individual homeowner’s interests in preserving their existing views. Accordingly, the Association argues the 2006 rules render moot the entire dispute.

[3] We disagree the new rules are entitled to judicial deference under Lamden. As with the Board’s prior policy that palm trees are exempt from the CC&Rs, the new rules are in direct conflict with the CC&Rs. The rules specifically exclude all palm trees planted before 2006–which basically means all trees that might currently obscure the Plaintiffs’ views. But section 7.18 does not grant the Association discretion to exclude view-blocking trees, it only gives the ARC discretion to determine whether or not a particular tree blocks a view. Furthermore, the new rules established what might best be called a “bowling alley” definition of what constituted view. Even if the Board had some discretionary authority to define what was meant by view, it was not free to fashion a definition that rendered section 7.18 meaningless. (See Nahrstedt v. Lakeside Village Condominium Assn.(1994) 8 Cal.4th 361, 380-381 [CC&Rs to be interpreted according to rules of contracts with view toward enforcing reasonable intent of parties].)

The Association cites Harvey v. Landing Homeowners Assn.(2008) 162 Cal.App.4th 809, for the proposition the trial court was required to defer to the Association’s chosen method for enforcing the CC&Rs, i.e., the 2006 rules. In Harvey, the association board permitted owners of units adjacent to common area attic space to utilize portions of the common area for exclusive storage. (Id. at p. 813.) The appellate court concluded the association board acted according to the authority granted to it in the CC&Rs. “‘The CC&R’s make clear the Board has the ‘sole and exclusive’ right to ‘manage’ the common area . . . ; to ‘adopt reasonable rules and regulations not inconsistent with the provisions contained in [the CC&R’s]’ relating to that use . . . ; to designate portions of the common area as ‘storage areas’ . . . ; and to authorize it to allow an owner to use exclusively portions of the common area ‘nominal in area’ adjacent to the owner’s unit, provided such use ‘does not unreasonably interfere with any other owner’s use or enjoyment of the project.'” (Id.at pp. 818-819, fn. omitted.)Harvey went on to conclude the Lamden rule of judicial deference applied to more than just ordinary discretionary maintenance decisions. “Under the ‘rule of judicial deference’ adopted by the court in Lamden, we defer to the [b]oard’s authority and presumed expertise regarding its sole and exclusive right to maintain, control and manage the common areas when it granted the fourth floor homeowners the right, under certain conditions, to use up to 120 square feet of inaccessible attic space common[1125]area for rough storage.” (Harvey, supra,162 Cal.App.4th at p. 821.) Harvey is inapposite. In Harvey, the board was acting consistently within the authority granted it in the CC&Rs. Here, the CC&Rs do not give the Board discretion to act as it did.

3. Vagueness and Overbreadth

The Association contends the judgment is void because it is too broad and too vague. Specifically, the Association attacks the language in the judgment ordering it not just to begin enforcing section 7.18, but “to utilize every enforcement mechanism available to it under the CC&Rs and the law in order to do so.”

[4] The Association first contends this language is too broad and impermissibly interferes with its discretion to determine how (and whether and when) to enforce the CC&Rs. It cites us to Lamden, supra,21 Cal.4th 249, Haley v. Casa Del Rey Homeowners Assn.(2007) 153 Cal.App.4th 863, and Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, for the proposition the Association alone has discretion to determine how to enforce its CC&Rs. But as noted in Lamden, when an association refuses to enforce its CC&Rs, a homeowner may seek an injunction compelling it to do so. (Lamden,supra,21 Cal.4th at p. 268 [“‘[u]nder well-accepted principles of condominium law, a homeowner can sue the association for damages and an injunction to compel the association to enforce the provisions of the declaration'”].) In view of the Association’s historical position that it need not and would not enforce section 7.18 as to palm trees, a directive that it utilize all enforcement mechanisms available, is necessary to ensure the Association does not simply now make a token effort.

The Association also complains the directive that it “utilize every enforcement mechanism available to it under the CC&Rs and the law” is vague because it is could be construed as a directive that it commence legal action against specific homeowners who have not been identified. To satisfy the requirement that injunctions concerning real property be specific, the Association argues the judgment must specify “against which homeowners, what properties, and with respect to what trees” it must act. It complains the lack of such direction in the judgment “severely impairs” its ability to comply with the judgment. We disagree.

Under section 7.18, it is the Association, through its ARC, that has the sole discretion under the CC&Rs to determine whether a specific palm tree that has grown beyond roof-top height “obstruct[s] the view from any of the other Lots . . . .” Until now, the Association has simply avoided any exercise of this[1126]discretion by taking the position all palms trees are excluded from the directive. Until the Association begins to do its job, the specific trees that must be trimmed will not be identified. The judgment is sufficiently clear as to what the Association must do. It must comply with its obligations by exercising its discretion “in good faith” to determine which trees obstruct the Plaintiffs’ views and it must then undertake the procedures outlined in the CC&Rs to enforce the CC&Rs as to those trees. The Association cannot feign ignorance of what it should do–it has apparently had no difficulty figuring out how to carry out its responsibilities as to other trees species and has in the past required homeowners to trim or remove such trees.

We are equally unimpressed by the Association’s assertion it should not be required to act at all to enforce section 7.18 as to palm trees because it has not been told how far it must go–specifically, if it must go so far as to commence legal action? The trial court specifically retained jurisdiction to oversee enforcement. (See Molar v. Gates (1979) 98 Cal.App.3d 1, 25.) It is pure speculation as to whether legal action against any homeowner will be necessary. And whether the Association should ultimately seek injunctive relief against any tree owner will have to be judged by the facts in existence at that time. (See Beehan, supra,70 Cal.App.3d at p. 866 [refusal of association to seek injunctive relief against homeowner in violation of CC&Rs “must be judged in light of the facts at the time the board consider[s] the matter”].) In current economic times, it might make little economic sense for the Association to pursue costly litigation against individual homeowners who refuse to comply with the CC&Rs, particularly since it is all the homeowners, including the Plaintiffs who will ultimately bear the cost of such litigation. And in such case, the Plaintiffs are certainly free to pursue their own litigation against individual homeowners to compel removal of any specific offending palm trees. (See Lamden,supra,21 Cal.4th at p. 268 [homeowner can sue directly to enforce CC&Rs].)

4. Failure to Join Indispensable Parties

The Association contends the judgment is void because the Plaintiffs failed to join as defendants the individual homeowners whose palm trees are obstructing their views as required by Code of Civil Procedure section 389. Accordingly, it argues the court in essence permitted an involuntary defense class action in which the rights of the individual tree owners have been adjudicated without their participation in this lawsuit. Because the Association did not raise this issue until after trial, in its request for a statement of decision, it has waived the argument on appeal. (McKeon v. Hastings College (1986) 185 Cal.App.3d 877, 889.) Furthermore, Civil Code section 1368.3 provides an association may defend litigation concerning enforcement of CC&Rs without joining the individual homeowners in the association.[1127]

DISPOSITION

The judgment is affirmed. The Respondents are awarded their costs on appeal.

Rylaarsdam, Acting P. J., and Aronson, J., concurred.

FN 1. The plaintiffs and respondents are Robert and Margaret Ekstrom, James and Shendel Haimes, Michael and Betty Sue Hopkins, Robert and Leona Kampling, Stephen and Cheryl Kron, Jim O’Neil, G. John and Joanne Scheffel, and Nicholas Shubin. For convenience, they will hereafter be referred to collectively as the Plaintiffs, unless the context indicates otherwise. In their respondents’ brief, the Plaintiffs inform us that while this appeal was pending, Robert Kempling passed away. His estate was not substituted in. Additionally, Jim O’Neil and Michael and Betty Sue Hopkins no longer reside in Marquesa, although they have not been dismissed from this action.

FN 2. As written, section 13.1 omitted the word “not,” which we have italicized above, reading, “Failure . . . to enforce any of the [CC&Rs] shall be deemed a waiver of the right to do so thereafter.” The Plaintiffs introduced deposition testimony of the original drafter of the CC&Rs (now Justice Alex McDonald), that this was a typographical error, and the sentence should read “shall not be deemed a waiver” as was his practice in all CC&Rs he drafted [and the norm for CC&Rs]. In its statement of decision, the trial court found the section contained a typographical error and was intended to read as we have recited. The Association does not challenge the court’s conclusion, but does assert the Board in good faith believed that by not enforcing the CC&Rs as to palm trees, it had waived the right to do so.

FN 3. The complaint also contained causes of action against individual Board members and the Association’s property management company. The individual Board members were dismissed after a successful summary judgment motion, and the management association settled.

Topanga Assn. for a Scenic Community v. County of Los Angeles

(1974) 11 Cal.3d 506

[Zoning Variance] An administrative agency must render findings supporting its decision to issue a zoning variance, and such findings must be supported by substantial evidence.

Amdur, Bryson, Caplan & Morton and David L. Caplan for Plaintiff and Appellant. John D. Maharg, County Counsel, Joe Ben Hudgens, John W. Whitsett and David H. Breier, Deputy County Counsel, for Defendants and Respondents.

Arnold J. Provisor for Real Parties in Interest.

OPINION
-TOBRINER, J.

We examine, in this case, aspects of the functions served by administrative agencies in the granting of zoning variances and of courts in reviewing these proceedings by means of administrative mandamus. We [510] conclude that variance boards like the ones involved in the present case must render findings to support their ultimate rulings. We also conclude that when called upon to scrutinize a grant of a variance, a reviewing court must determine whether substantial evidence supports the findings of the administrative board and whether the findings support the board’s action. fn. 1 We determine in the present case that the last of these requisites has not been fulfilled.

The parties in this action dispute the future of approximately 28 acres in Topanga Canyon located in the Santa Barbara Mountains region of Los Angeles County. A county ordinance zones the property for light agriculture and single family residences; fn. 2 it also prescribes a one-acre minimum lot size. Upon recommendation of its zoning board and despite the opposition of appellant-petitioner — an incorporated nonprofit organization composed of taxpayers and owners of real property in the canyon — the Los Angeles County Regional Planning Commission granted to the Topanga Canyon Investment Company a variance to establish a 93-space mobile home park on this acreage. fn. 3 Petitioner appealed without success to the county board of supervisors, thereby exhausting its administrative remedies. Petitioner then sought relief by means of administrative mandamus, again unsuccessfully, in Los Angeles County Superior Court and the Court of Appeal for the Second District.

In reviewing the denial of mandamus below, we first consider the proper role of agency and reviewing court with respect to the grant of variances. We then apply the proper standard of review to the facts of the case in order to determine whether we should sustain the action of the Los Angeles County Regional Planning Commission.[511]

1. An administrative grant of a variance must be accompanied by administrative findings. A court reviewing that grant must determine whether substantial evidence supports the findings and whether the findings support the conclusion that all applicable legislative requirements for a variance have been satisfied.

A comprehensive zoning plan could affect owners of some parcels unfairly if no means were provided to permit flexibility. Accordingly, in an effort to achieve substantial parity and perhaps also in order to insulate zoning schemes from constitutional attack, fn. 4 our Legislature laid a foundation for the granting of variances. Enacted in 1965, section 65906 of the Government Code establishes criteria for these grants; it provides: “Variances from the terms of the zoning ordinance shall be granted only when, because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification [¶] Any variance granted shall be subject to such conditions as will assure that the adjustment thereby authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is situated.” fn. 5

Applicable to all zoning jurisdictions except chartered cities (Gov. Code, § 65803), section 65906 may be supplemented by harmonious local legislation. fn. 6 We note that Los Angeles County has enacted an ordinance which, [512] if harmonious with section 65906, would govern the Topanga Canyon property here under consideration. Los Angeles County’s Zoning Ordinance No. 1494, section 522, provides: fn. 7 “An exception [variance] may … be granted where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance, and in the granting of such exception the spirit of the ordinance will be observed, public safety secured, and substantial justice done.”

Both state and local laws thus were designed to establish requirements which had to be satisfied before the Topanga Canyon Investment Company should have been granted its variance. Although the cases have held that substantial evidence must support the award of a variance in order to insure that such legislative requirements have been satisfied fn. 8 (see, e.g., Siller v. Board of Supervisors (1962) 58 Cal.2d 479, 482 [25 Cal.Rptr. 73, 375 P.2d 41]; Bradbeer v. England (1951) 104 Cal. App.2d 704, 707 [232 P.2d 308]), they have failed to clarify whether the administrative agency must always set forth findings and have not illuminated the proper relationship between the evidence, findings, and ultimate agency action. fn. 9

One of the first decisions to emphasize the importance of judicial scrutiny of the record in order to determine whether substantial evidence supported administrative findings that the property in question met the legislative variance requirements was that penned by Justice Molinari in [513] Cow Hollow Improvement Club v. Board of Permit Appeals (1966) 245 Cal.App.2d 160 [53 Cal.Rptr. 610]. Less than one year later, we followed the approach of that case in Broadway, Laguna etc. Assn. v. Board of Permit Appeals (1967) 66 Cal.2d 767 [59 Cal.Rptr. 146, 427 P.2d 810], and ordered that a zoning board’s grant of a variance be set aside because the party seeking the variance had failed to adduce sufficient evidence to support administrative findings that the evidence satisfied the requisites for a variance set forth in the same San Francisco ordinance.

Understandably, however, the impact of these opinions remained uncertain. The San Francisco ordinance applicable in Cow Hollow and Broadway explicitly required the zoning board to specify its subsidiary findings and ultimate conclusions; this circumstance raised the question whether a court should require findings and examine their sufficiency in a case in which the applicable local legislation did not explicitly command the administrative body to set forth findings. Indeed language in Broadway intimated that such a case was distinguishable. (Broadway, Laguna etc. Assn. v. Board of Permit Appeals, supra, at pp. 772-773. See also Stoddard v. Edelman (1970) 4 Cal.App.3d 544, 549 [84 Cal.Rptr. 443]. Cf. Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 270 [104 Cal.Rptr. 761, 502 P.2d 1049].) Further, neither Cow Hollow nor Broadway confronted Government Code section 65906, since both cases concerned a chartered city. fn. 10 There thus also remained uncertainty with respect to cases involving zoning jurisdictions other than chartered cities.

Nevertheless, in an opinion subsequent to Broadway; Hamilton v. Board of Supervisors (1969) 269 Cal.App.2d 64 [75 Cal.Rptr. 106], a Court of Appeal set aside the grant of a variance by a planning commission under circumstances different from those in Broadway and Cow Hollow. The zoning jurisdiction involved in that controversy was a county, not a chartered city, and the court’s opinion did not suggest that any applicable ordinance required administrative findings. Deeming Government Code section 65906 “concededly controlling,” (Hamilton v. Board of Supervisors, supra, at p. 67), the court undertook the task of squaring the findings announced by the commission with the commission’s grant of the variance and concluded that the findings were insufficient to sustain the variance.

[1] Consistent with the reasoning underlying these cases, we hold that [514] regardless of whether the local ordinance commands that the variance board set forth findings, fn. 11 that body must render findings sufficient both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the board’s action. [2] We hold further that a reviewing court, before sustaining the grant of a variance, must scrutinize the record and determine whether substantial evidence supports the administrative agency’s findings and whether these findings support the agency’s decision. In making these determinations, the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision.

Our analysis begins with consideration of Code of Civil Procedure section 1094.5, the state’s administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. [3] Without doubt, this provision applies to the review of variances awarded by bodies such as the Los Angeles County zoning agencies that participated in the present case. fn. 12 [4] Section 1094.5 clearly contemplates that at minimum, the reviewing court must determine both whether substantial evidence supports the administrative [515] agency’s findings and whether the findings support the agency’s decision. Subdivision (b) of section 1094.5 prescribes that when petitioned for a writ of mandamus, a court’s inquiry should extend, among other issues, to whether “there was any prejudicial abuse of discretion.” Subdivision (b) then defines “abuse of discretion” to include instances in which the administrative order or decision “is not supported by the findings, or the findings are not supported by the evidence.” (Italics added.) Subdivision (c) declares that “in all … cases” (italics added) other than those in which the reviewing court is authorized by law to judge the evidence independently, fn. 13 “abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” (See Zakessian v. City of Sausalito (1972) 28 Cal.App.3d 794, 798 [105 Cal.Rptr. 105].)

[5] We further conclude that implicit in section 1094.5 is a requirement that the agency which renders the challenged decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. If the Legislature had desired otherwise, it could have declared as a possible basis for issuing mandamus the absence of substantial evidence to support the administrative agency’s action. By focusing, instead, upon the relationships between evidence and findings and between findings and ultimate action, the Legislature sought to direct the reviewing court’s attention to the analytic route the administrative agency traveled from evidence to action. In so doing, we believe that the Legislature must have contemplated that the agency would reveal this route. Reference, in section 1094.5, to the reviewing court’s duty to compare the evidence and ultimate decision to “the findings” (italics added) we believe leaves no room for the conclusion that the Legislature would have been content to have a reviewing court speculate as to the administrative agency’s basis for decision.

Our ruling in this regard finds support in persuasive policy considerations. (See generally 2 Davis, Administrative Law Treatise (1958) § 16.05, pp. 444-449; Forkosch, A Treatise on Administrative Law (1956) § 253, pp. 458-464.) According to Professor Kenneth Culp Davis, the requirement that administrative agencies set forth findings to support their adjudicatory decisions stems primarily from judge-made law (see, e.g., Zieky v. Town Plan and Zon. Com’n of Town of Bloomfield (1963) 151 Conn. 265 [196 A.2d 758]; Stoll v. Gulf Oil Corp. (1958) 79 Ohio L.Abs. 145 [155 N.E.2d 83]), and is “remarkably uniform in both federal and state [516] courts.” As stated by the United States Supreme Court, the “accepted ideal … is that ‘the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.’ (S.E.C. v. Chenery Corp. (1943) 318 U.S. 80, 94.)” (2 Davis, supra, § 16.01, pp. 435-436. See also Saginaw Broadcasting Co. v. Federal C. Com’n (1938) 96 F.2d 554, 559 [68 App.D.C. 282].)

Among other functions, a findings requirement serves to conduce the administrative body to draw legally relevant sub-conclusions supportive of its ultimate decision; the intended effect is to facilitate orderly analysis and minimize the likelihood that the agency will randomly leap from evidence to conclusions. (See 2 Cooper, State Administrative Law (1965) pp. 467-468; Feller, Prospectus for the Further Study of Federal Administrative Law (1938) 47 Yale L.J. 647, 666. Cf. Comment, Judicial Control Over Zoning Boards of Appeal: Suggestions for Reform (1965) 12 U.C.L.A. L.Rev. 937, 952.) fn. 14 In addition, findings enable the reviewing court to trace and examine the agency’s mode of analysis. (See California Motor Transport Co. v. Public Utilities Com. (1963) 59 Cal.2d 270, 274 [28 Cal.Rptr. 868, 379 P.2d 324]; Swars v. Council of City of Vallejo (1949) 33 Cal.2d 867, 871 [206 P.2d 355].)

Absent such roadsigns, a reviewing court would be forced into unguided and resource-consuming explorations; it would have to grope through the record to determine whether some combination of credible evidentiary items which supported some line of factual and legal conclusions supported the ultimate order or decision of the agency. fn. 15 [6] Moreover, [517] properly constituted findings fn. 16 enable the parties to the agency proceeding to determine whether and on what basis they should seek review. (See In re Sturm (1974) ante, pp. 258, 267 [113 Cal.Rptr. 361, 521 P.2d 97]; Swars v. Council of City of Vallejo, supra, at p. 871.) They also serve a public relations function by helping to persuade the parties that administrative decision-making is careful, reasoned, and equitable.

By setting forth a reasonable requirement for findings and clarifying the standard of judicial review, we believe we promote the achievement of the intended scheme of land use control. Vigorous and meaningful judicial review facilitates, among other factors, the intended division of decision-making labor. [7] Whereas the adoption of zoning regulations is a legislative function (Gov. Code, § 65850), the granting of variances is a quasi-judicial, administrative one. (See Johnston v. Board of Supervisors (1947) 31 Cal.2d 66, 74 [187 P.2d 686]; Kappadahl v. Alcan Pacific Co. (1963) 222 Cal.App.2d 626, 634 [35 Cal.Rptr. 354].) If the judiciary were to review grants of variances superficially, administrative boards could subvert this intended decision-making structure. (See 1 Appendix to Sen. J. (1970 Reg. Sess.) Final Rep. of the Joint Committee on Open Space Land (1970) pp. 102-103.) They could “[amend] … the zoning code in the guise of a variance” (Cow Hollow Improvement Club v. Board of Permit Appeals, supra, at p. 181), and render meaningless, applicable state and local legislation prescribing variance requirements.

Moreover, courts must meaningfully review grants of variances in order to protect the interests of those who hold rights in property nearby the parcel for which a variance is sought. [8] A zoning scheme, after all, is similar in some respects to a contract; each party foregoes rights to use its land as it wishes in return for the assurance that the use of neighboring property will be similarly restricted, the rationale being that such mutual restriction can enhance total community welfare. (See, e.g., 1 Appendix to Sen. J. (1970 Reg. Sess.) Final Rep. of the Joint Committee on Open Space Land (1970) p. 91; Bowden, Article XXVIII — Opening the Door to Open Space Control (1970) 1 Pacific L.J. 461, 501.) If the interest of [518] these parties in preventing unjustified variance awards for neighboring land is not sufficiently protected, the consequence will be subversion of the critical reciprocity upon which zoning regulation rests.

Abdication by the judiciary of its responsibility to examine variance board decision-making when called upon to do so could very well lead to such subversion. fn. 17 Significantly, many zoning boards employ adjudicatory procedures that may be characterized as casual. (See Comment, Judicial Control over Zoning Boards of Appeal: Suggestions for Reform (1965) 12 U.C.L.A. L.Rev. 937, 950. Cf. Bradbeer v. England (1951) 104 Cal. App.2d 704, 710 [232 P.2d 308].) The availability of careful judicial review may help conduce these boards to insure that all parties have an opportunity fully to present their evidence and arguments. Further, although we emphasize that we have no reason to believe that such a circumstance exists in the case at bar, the membership of some zoning boards may be inadequately insulated from the interests whose advocates most frequently seek variances. (See e.g., 1 Appendix to Sen. J. (1970 Reg. Sess.) Final Rep. of the Joint Committee on Open Space Land (1970) p. 100.) Vigorous judicial review thus can serve to mitigate the effects of insufficiently independent decision-making.

2. The planning commission’s summary of “factual data” — its apparent “findings” — does not include facts sufficient to satisfy the variance requirements of Government Code section 65906.

As we have mentioned, at least two sets of legislative criteria appear applicable to the variance awarded: Government Code section 65906 and Los Angeles County Zoning Ordinance No. 1494, section 522. [9] The variance can be sustained only if all applicable legislative requirements have been satisfied. Since we conclude that the requirements of section 65906 have not been met, the question whether the variance conforms with the criteria set forth in Los Angeles County Zoning Ordinance No. 1494, section 522 becomes immaterial. fn. 18 [519]

We summarize the principal factual data contained in the Los Angeles County Regional Planning Commission’s report, which data the commission apparently relied on to award the variance. fn. 19 The acreage upon which the original real party in interest fn. 20 sought to establish a mobile home park consists of 28 acres; it is a hilly and in places steep parcel of land. At the time the variance was granted, the property contained one single-family residence. Except for a contiguous area immediately to the southeast which included an old and flood-damaged subdivision and a few commercial structures, the surrounding properties were devoted exclusively to scattered single-family residences.

The proposed mobile home park would leave 30 percent of the acreage in its natural state. An additional 25 percent would be landscaped and terraced to blend in with the natural surroundings. Save in places where a wall would be incompatible with the terrain, the plan contemplated enclosure of the park with a wall; it further called for rechanneling a portion of Topanga Canyon Creek and anticipated that the developers would be required to dedicate an 80-foot-wide strip of the property for a proposed realignment of Topanga Creek Boulevard. [520]

The development apparently would partially satisfy a growing demand for new, low cost housing in the area. Additionally, the project might serve to attract further investment to the region and could provide a much needed fire break. Several data indicate that construction on the property of single-family residences in conformance with the zoning classification would generate significantly smaller profits than would development of the mobile home park. Single-family structures apparently would necessitate costly grading, and the proposed highway realignment would require a fill 78 feet high, thereby rendering the property unattractive for conventional residential development. Moreover, the acreage is said not to be considered attractive to parties interested in single-family residences due, in the words of the report’s summary of the testimony, to “the nature of the inhabitants” in the vicinity and also because of local flood problems.

These data, we conclude, do not constitute a sufficient showing to satisfy the section 65906 variance requirements. That section permits variances “only when, because of special circumstances applicable to the property, … the strict application of the zoning ordinance deprives such property of privileges enjoyed by other property in the vicinity and under identical zoning classification.” (Italics added.) [10] This language emphasizes disparities between properties, not treatment of the subject property’s characteristics in the abstract. (See Minney v. City of Azusa (1958) 164 Cal. App.2d 12, 31 [330 P.2d 255]; cf. In re Michener’s Appeal (1955) 382 Pa. 401 [115 A.2d 367, 371]; Beirn v. Morris (1954) 14 N.J. 529 [103 A.2d 361, 364]; Note, Administrative Discretion in Zoning (1969) 82 Harv. L.Rev. 668, 671-672.) It also contemplates that at best, only a small fraction of any one zone can qualify for a variance. (See generally 3 Anderson, American Law of Zoning (1968) § 14.69, pp. 62-65.)

The data contained in the planning commission’s report focus almost exclusively on the qualities of the property for which the variance was sought. In the absence of comparative information about surrounding properties, these data lack legal significance. Thus knowledge that the property has rugged features tells us nothing about whether the original real party in interest faced difficulties different from those confronted on neighboring land. fn. 21 Its assurances that it would landscape and terrace parts of the property and leave others in their natural state are all well and good, but they bear not at all on the critical issue whether a variance [521] was necessary to bring the original real party in interest into substantial parity with other parties holding property interests in the zone. (See Hamilton v. Board of Supervisors, supra, at p. 66.)

The claim that the development would probably serve various community needs may be highly desirable, but it too does not bear on the issue at hand. Likewise, without more, the data suggesting that development of the property in conformance with the general zoning classification could require substantial expenditures are not relevant to the issue whether the variance was properly granted. Even assuming for the sake of argument that if confined to the subject parcel and no more than a few others in the zone, such a burden could support a variance under section 65906, for all we know from the record, conforming development of other property in the area would entail a similar burden. Were that the case, a frontal attack on the present ordinance or a legislative proceeding to determine whether the area should be rezoned might be proper, but a variance would not. (1 Appendix to Sen. J. (1970 Reg. Sess.) Final Rep. of the Joint Committee on Open Space Land (1970) p. 95; Bowden, Article XVIII — Opening the Door to Open Space Control (1970) 1 Pacific L.J. 461, 506.)

Although they dispute that section 65906 requires a showing that the characteristics of the subject property are exceptional, the current real parties in interest would nevertheless have us speculate that the property is unlike neighboring parcels. They point out that the plot has rugged terrain and three stream beds fn. 22 and that the Topanga Creek Boulevard realignment would bisect the property. [11] Speculation about neighboring land, however, will not support the award of a variance. The party seeking the variance must shoulder the burden of demonstrating before the zoning agency that the subject property satisfies the requirements therefor. (Tustin Heights Association v. Board of Supervisors (1959) 170 Cal.App.2d 619, 627 [339 P.2d 914].) Thus neither an administrative agency nor a reviewing court may assume without evidentiary basis that the character of neighboring property is different from that of the land for which the variance is sought. fn. 23 [522]

[12] Moreover, the grant of a variance for nonconforming development of a 28-acre parcel in the instant case is suspect. Although we do not categorically preclude a tract of that size from eligibility for a variance, we note that in the absence of unusual circumstances, so large a parcel may not be sufficiently unrepresentative of the realty in a zone to merit special treatment. By granting variances for tracts of this size, a variance board begins radically to alter the nature of the entire zone. Such change is a proper subject for legislation, not piecemeal administrative adjudication. (See Sinclair Pipe Line Co. v. Village of Richton Park (1960) 19 Ill.2d 370 [167 N.E.2d 406]; Appeal of the Catholic Cemeteries Association (1954) 379 Pa. 516 [109 A.2d 537]; Civil City of Indianapolis v. Ostrom R. & Construction Co. (1931) 95 Ind.App. 376 [176 N.E. 246].) [13] Since there has been no affirmative showing that the subject property differs substantially and in relevant aspects from other parcels in the zone, we conclude that the variance granted amounts to the kind of “special privilege” explicitly prohibited by Government Code section 65906.

We submit, in summary, that this case illumines two important legal principles. First, by requiring that administrative findings must support a variance, we emphasize the need for orderly legal process and the desirability of forcing administrative agencies to express their grounds for decision so that reviewing courts can intelligently examine the validity of administrative action. Second, by abrogating an unsupported exception to a zoning plan, we conduce orderly and planned utilization of the environment.

We reverse the judgment and remand the cause to the superior court with directions to issue a writ of mandamus requiring the Los Angeles Board of Supervisors to vacate its order awarding a variance. We also direct the superior court to grant any further relief that should prove appropriate.

Wright, C. J., McComb, J., Mosk, J., Burke, J., Sullivan, J., and Clark, J., concurred.

FN 1. We recently held in Strumsky v. San Diego County Employees Retirement Association (1974) 11 Cal.3d 28 [112 Cal.Rptr. 805, 520 P.2d 29], that if the order or decision of a local administrative agency substantially affects a “fundamental vested right,” a court to which a petition for a writ of mandamus has been addressed upon the ground that the evidence does not support the findings must exercise its independent judgment in reviewing the evidence and must find abuse of discretion if the weight of the evidence fails to support the findings. Petitioner does not suggest, nor do we find, that the present case touches upon any fundamental vested right. (See generally Bixby v. Pierno (1971) 4 Cal.3d 130, 144-147 [93 Cal.Rptr. 234, 481 P.2d 242]; Temescal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 103 [280 P.2d 1].)

FN 2. Los Angeles County Zoning Ordinance No. 7276.

FN 3. Originally the real party in interest, the Topanga Canyon Investment Company has been replaced by a group of successoral real parties in interest. We focus our analysis on the building plans of the original real party in interest since it was upon the basis of these plans that the zoning authorities granted the variance challenged by petitioner.

FN 4. 1 Appendix to Journal of the Senate (1970 Reg. Sess.) Final Report of the Joint Committee on Open Space Land (1970) pages 94-95; Bowden, Article XVIII — Opening the Door to Open Space Control (1970) 1 Pacific L.J. 461, 506. See Metcalf v. County of Los Angeles (1944) 24 Cal.2d 267, 270-271 [148 P.2d 645]; Gaylord, Zoning: Variances, Exceptions and Conditional Use Permits in California (1958) 5 U.C.L.A. L.Rev. 179; Comment, The General Welfare, Welfare Economics, and Zoning Variances (1965) 38 So.Cal.L.Rev. 548, 573. See generally Note, Administrative Discretion in Zoning (1969) 82 Harv.L.Rev. 668, 671. The primary constitutional concern is that as applied to a particular land parcel, a zoning regulation might constitute a compensable “taking” of property.

FN 5. A third paragraph added to section 65906 declares: “A variance shall not be granted for a parcel of property which authorizes a use or activity which is not otherwise expressly authorized by the zone regulation governing the parcel of property.” This paragraph serves to preclude “use” variances, but apparently does not prohibit so-called “bulk” variances, those which prescribe setbacks, building heights, and the like. The paragraph became effective on November 23, 1970, 19 days after the Los Angeles County Regional Planning Commission granted the variance here at issue. Petitioner does not contend that the paragraph is applicable to the present case.

FN 6. Government Code section 65800 declares that the code chapter of which section 65906 is a part is intended to provide minimum limitations within which counties and cities can exercise maximum control over local zoning matters. Article XI, section 11 of the California Constitution declares that “[a]ny county, city, town, or township may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.”

FN 7. This section recently was repealed but was in force when the zoning agencies rendered their decisions in the present case. For purposes of more succinct presentation, we refer in text to the section in the present tense.

FN 8. The rule stated finds its source in authorities holding that all adjudicatory determinations of local agencies are entitled to no more than substantial evidence review. As indicated above (fn. 1, ante) those authorities no longer state the law with respect to adjudicatory determinations of such agencies which affect fundamental vested rights. Since no such right is involved in this case, however, the substantial evidence standard remains applicable. We note by way of caution, however, that merely because a case is said to involve a “variance” does not necessarily dictate a conclusion that no fundamental vested right is involved. The term “variance” is sometimes used, for example, to refer to permits for nonconforming uses which predate a zoning scheme. (See Hagman, Larson, & Martin, Cal. Zoning Practice (Cont. Ed. Bar) pp. 383-384.)

FN 9. For descriptions of the history of judicial action in this state with respect to zoning variance grants, see Bowden, Article XVIII — Opening the Door to Open Space Control (1970) 1 Pacific L.J. 461, 507-509; 1 Appendix to Journal of the Senate (1970 Reg. Sess.) Final Report of the Joint Committee on Open Space Land (1970) pages 95-98; Hagman, Larson,& Martin, Cal. Zoning Practice, supra, pages 287-291.

FN 10. See page 511, ante.

FN 11. We note the apparent applicability of section 639 of the Los Angeles County Zoning Ordinance which was in effect at the time respondent granted the variance. That section provided: “After a hearing by a zoning board the said zoning board shall report to the commission its findings and recommend the action which it concludes the commission should take.” As explained in text, however, we rest our ruling upon Code of Civil Procedure section 1094.5.

FN 12. Allen v. Humboldt County Board of Supervisors (1963) 220 Cal.App.2d 877, 882 [34 Cal.Rptr. 232]. See also Siller v. Board of Supervisors (1962) 58 Cal.2d 479, 481 [25 Cal.Rptr. 73, 375 P.2d 41]. The California Judicial Council’s report reflects a clear desire that section 1094.5 apply to all agencies, regardless of whether they are subject to the Administrative Procedure Act and regardless of their state or local character. (See Judicial Council of Cal., 10th Biennial Rep. (1944) pp. 26, 45. See also Temescal Water Co. v. Dept. Public Works (1955) 44 Cal.2d 90, 101 [280 P.2d 1]; Deering, Cal. Administrative Mandamus (1966) p. 7.) “In the absence of compelling language in [a] statute to the contrary, it will be assumed that the Legislature adopted the proposed legislation with the intent and meaning expressed by the council in its report.” (Hohreiter v. Garrison (1947) 81 Cal.App.2d 384, 397 [184 P.2d 323].)

Section 1094.5 makes administrative mandamus available for review of “any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in the inferior tribunal, corporation, board or officer.” (Italics added.) Government Code section 65901 satisfies these requisites with respect to variances granted by jurisdictions other than chartered cities such as Los Angeles County’s zoning agencies. Section 65901 provides, in part: “The board of zoning adjustment or zoning administrator shall hear and decide applications for conditional uses or other permits when the zoning ordinance provides therefor and establishes criteria for determining such matters, and applications for variances from the terms of the zoning ordinance.”

FN 13. See footnote 1, supra.

FN 14. Although at first blush, judicial enforcement of a findings requirement would appear to constrict the role of administrative agencies, in reality, the effect could be to the contrary. Because, notes Judge Bazelon, it provides a framework for principled decision-making, a findings requirement serves to “diminish the importance of judicial review by enhancing the integrity of the administrative process.” (Environmental Defense Fund, Inc. v. Ruckelshaus (D.C.Cir. 1971) 439 F.2d 584, 598.) By exposing the administrative agency’s mode of analysis, findings help to constrict and define the scope of the judicial function. “We must know what [an administrative] decision means,” observed Mr. Justice Cardozo, “before the duty becomes ours to say whether it is right or wrong.” (United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. (1935) 294 U.S. 499, 511 [79 L.Ed. 1023, 1032, 55 S.Ct. 462].)

FN 15. “Given express findings, the court can determine whether the findings are supported by substantial evidence, and whether the findings warrant the decision of the board. If no findings are made, and if the court elects not to remand, its clumsy alternative is to read the record, speculate upon the portions which probably were believed by the board, guess at the conclusions drawn from credited portions, construct a basis for decision, and try to determine whether a decision thus arrived at should be sustained. In the process, the court is required to do much that is assigned to the board. …” (3 Anderson, American Law of Zoning (1968) § 16.41, p. 242.)

FN 16. Although a variance board’s findings “need not be stated with the formality required in judicial proceedings” (Swars v. Council of City of Vallejo, supra, at p. 872), they nevertheless must expose the board’s mode of analysis to an extent sufficient to serve the purposes stated herein. We do not approve of the language in Kappadahl v. Alcan Pacific Co. (1963) 222 Cal.App.2d 626, 639 [35 Cal.Rptr. 354], and Ames v. City of Pasadena (1959) 167 Cal.App.2d 510, 516 [334 P.2d 653], which endorses the practice of setting forth findings solely in the language of the applicable legislation.

FN 17. See generally Comment, Zoning: Variance Administration in Alameda County (1962) 50 Cal.L.Rev. 101, 107 and footnote 42. See also Note, Administrative Discretion in Zoning (1969) 82 Harv.L.Rev. 668, 672 and sources cited therein.

FN 18. We focus on the statewide requirements because they are of more general application. If we were to decide that the criteria of section 65906 had been satisfied, we would then be called upon to determine whether the requirements set forth in the county ordinance are consistent with those in section 65906 and, if so, whether these local criteria also had been satisfied.

The local criteria need be squared with the state criteria since the section 65906 requirements prevail over any inconsistent requirements in the county ordinance. The stated purpose of title 7, chapter 4, of the Government Code, which includes section 65906, is to provide limitations — albeit minimal ones — on the adoption and administration of zoning laws, ordinances, and regulations by counties and nonchartered cities. (See fn. 6, ante.) Section 65802 of the code declares that “[n]o provisions of [the Government Code], other than the provisions of [chapter 4], and no provisions of any other code or statute shall restrict or limit the procedures provided in [chapter 4] by which the legislative body of any county or city enacts, amends, administers, or provides for the administration of any zoning law, ordinance, rule or regulation.” The clear implication is that chapter 4 does restrict or limit these procedures. (See also Cal. Const., art. XI, § 11.)

If local ordinances were allowed to set a lesser standard for the grant of variances than those provided in section 65906, a county or city could escape the prohibition against granting use variances added to section 65906 in 1970 (see fn. 5, ante) merely by enacting an ordinance which would permit the grant of use variances. Clearly the Legislature did not intend that cities and counties to which the provisions of chapter 4 apply should have such unfettered discretion.

FN 19. We confine our analysis to the relationship between the commission’s fact summary and its ultimate decision; we do not consider the testimonial evidence directly. To sustain the grant of the variance of course would require that we conclude that substantial evidence supports the findings and that the findings support the variance award. Since we decide below, however, that the commission’s fact summary does not include sufficient data to satisfy the section 65906 requirements, we need not take the further step of comparing the transcript to the fact summary. Our basis for so proceeding lies in Code of Civil Procedure section 1094.5, which defines “abuse of discretion,” one of several possible grounds for issuance of a writ of mandamus, to include instances in which “the order or decision [of the administrative agency] is not supported by the findings, or the findings are not supported by the evidence.” (Italics added.)

FN 20. See footnote 3, ante.

FN 21. Indeed, the General Plan for Topanga Canyon suggests that the subject property is not uniquely surfaced; it states that the entire area is characterized by “mountainous terrain, steep slopes and deep canyons interspersed with limited areas of relatively flat or rolling land.”

FN 22. Interestingly, since the witnesses who testified in favor of the variance never mentioned the stream beds, the original real party in interest apparently did not regard the beds as disadvantageous. Rather, a witness who opposed the variance offhandedly mentioned the beds as illustrative of the scenic beauty of the area. The trial court seized upon this testimony and used it in justifying the variance award.

FN 23. In fact, other parcels in the zone may well have the features that the successoral real parties in interest speculate are confined to the subject property. Rugged terrain apparently is ubiquitous in the area (see fn. 21, ante), and because the stream beds and highway must enter and exit the subject property somewhere, they may all traverse one or more neighboring parcels. Further, for all we know from the commission’s findings, stream beds may traverse most parcels in the canyon.

Tesoro del Valle Master Homeowners Assn. v. Griffin

(2011) 200 Cal.App.4th 619

[Architectural Control; Solar Energy] An association may consider aesthetic impacts in connection with reviewing and approving an owner’s application for a proposed solar energy system.

Law Offices of Michael L. McQueen and Michael L. McQueen for Defendants and Appellants. Greenberg Glusker Fields Claman & Machtinger and Ricardo P. Cestero for Plaintiff and Respondent.

OPINION
DOI TODD, Acting P.J.-

Defendants and appellants Martin and Carolyn Griffin appeal from a judgment following a jury verdict in favor of plaintiff [623] and respondent Tesoro del Valle Master Homeowners Association (Tesoro) on its claims that appellants installed a solar energy system at their residence in contravention of conditions, covenants and restrictions governing their property. Unmindful of applicable standards of review, appellants raise a host of issues in an effort to undermine the jury verdict. We affirm. The jury properly determined the disputed issues and substantial evidence supported the determinations; Tesoro properly evaluated appellants’ application for their system, brought suit and received a jury trial; and the trial court properly exercised its discretion in the admission and exclusion of expert testimony.

FACTUAL AND PROCEDURAL BACKGROUND

Tesoro’s Governing Documents.

Tesoro is a nonprofit mutual benefit corporation that manages, administers, maintains, preserves and operates the residences and common areas in the Tesoro community. On May 29, 2003, the developer of the Tesoro community recorded with the Los Angeles County Recorder’s Office a Master Declaration of Establishment of Covenants, Conditions, and Restrictions for Tesoro del Valle (CC&R’s). The purpose of the CC&R’s is to enhance and protect the value, desirability and attractiveness of the Tesoro community, as well as to give the Tesoro Board of Directors (Tesoro Board) the authority to maintain community standards.

Article 7 of the CC&R’s addresses the duties and responsibilities of Tesoro’s volunteer Architectural Control Committee (ACC), providing that homeowners must obtain the ACC’s approval before making any improvements to their property. Section 7.2 of the CC&R’s outlines the application process, providing the application requirements and stating that the ACC may grant approval only if the applicant has complied with those requirements and the ACC, in its discretion, concludes that the proposed improvement conforms to the CC&R’s and is harmonious with the existing development.

Section 8.1.18 of the CC&R’s reiterates that “[t]here shall be no construction, alteration, or removal of any Improvement in the Project (other than repairs or rebuilding done by the Association pursuant hereto) without the approval of the Architectural Control Committee.” Further, section 8.1.20 of the CC&R’s states: “Within slope areas, no structure, planting, fencing, . . . shall be placed or permitted to remain or other activities undertaken which may damage or interfere with established slope ratios, create erosion or sliding problems, or which may change the direction of flow of drainage channels or obstruct or retard the flow of water through drainage channels.” That provision also imposes on the homeowner the duty to maintain the landscaping installed on the slope by Tesoro. [624]

In December 2003, Tesoro approved Design Guidelines to “help assure continuity in design, which will help preserve and improve the appearance of the community.” Section III, paragraph G, specifically directed to the architectural standards for solar energy systems, provides: “As provided for in Section 714 of the California Civil Code, reasonable restrictions on the installation of solar energy systems that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or which allow for an alternative system of comparable costs, efficiency, and energy conservation benefits may be imposed by the Committee [ACC]. [¶] Whenever approval is required for the installation or use of a solar energy system, the application for approval shall be processed and approved by the Committee in the same manner as an application for approval of a modification to the property, and shall not be willfully avoided or delayed.”

Appellants’ Solar Energy System Installation.

In 2005, appellants purchased their home at 29313 Hacienda Ranch Court (property) in the Tesoro development. fn. 1 Their corner property was approximately 15,000 square feet and included a slope outside the perimeter wall. They were provided with a copy of the CC&R’s at that time and understood they would be bound by them. They also received Tesoro’s Design Guidelines and agreed to be bound by those as well. Appellants were aware that they were required to maintain their property, including the slope, and to submit a written application to obtain approval from the ACC before making any improvements to their property. After submitting the required applications, they made several improvements to their property, such as the installation of a pool, casita and landscaping including a fountain and hardscape.

In 2007, appellants met with Joe Hawley, then with Advanced Solar Electric, who gave them a proposal for the installation of a solar energy system for their property. They told Hawley they were interested in the system being installed on the slope adjacent to their residence. Appellants submitted an application to install a solar energy system on October 2, 2007. fn. 2

Euclid Management Company was responsible for Tesoro’s day-to-day management. When Martin walked the application into the Euclid Management office, association manager Patty Prime told him it was not likely to be approved. She informed him that the application was incomplete in several areas and that she was unaware of any other solar energy systems being [625] installed outside a perimeter wall. According to the CC&R’s, the ACC had 45 days from the submission of appellants’ application to review and rule on it.

The CC&R’s and Design Guidelines specify the application requirements, which include the submission of a plot plan drawn to scale, a detailed description of the proposed materials, a landscape plan and a drainage plan. Appellants’ application met none of the requirements. It contained only a handwritten drawing with a rectangle signifying the approximate location of the proposed solar panels. It did not contain information concerning the panels’ dimensions, number or color; the setback; the proposed alterations to the landscaping; or the amount of electricity proposed to be generated.

Because of Prime’s negative comment, while their application was pending appellants sought a proposal from Hawley for the installation of solar panels on the roof of their residence. They received a proposal on October 10, 2007, which provided for the installation of 36 solar panels on their roof and 22 panels on the slope, but they did not amend their pending application or submit a revised application to reflect the changes. Instead, on November 8, 2007, they signed a $97,000 contract with Advanced Solar Electric for the installation of the new proposed solar energy system.

Also on November 8, 2007–before the expiration of the 45-day time limit–the ACC issued a letter denying appellants’ application. fn. 3 The denial letter was misaddressed, however, and appellants did not receive it until November 17, 2007–46 days after October 2, 2007. Summarizing the ACC’s position, Tim Collins handwrote four comments on appellants’ application noting that the roof of the casita adjacent to appellants’ residence should be considered as a location for the panels; that the project’s dimensions and minimum setbacks needed to be provided on the site plan; that appellants needed to indicate how the slope beneath the solar panels would be maintained; and that they needed to submit photographs of the existing landscape and superimpose the proposed panel elevation. The ACC was concerned about the proposed slope-mounted system because it was at the entry to the neighborhood, adjacent homes had a direct line of sight, the CC&R’s prohibited slope alteration and any alteration or landscape removal could impact drainage. The ACC expected that appellants would address the expressed concerns and submit a revised application.

After receiving the denial letter, Martin attended and spoke at a meeting of the Tesoro Board, informing the board members that he deemed the untimely denial of his project an approval, he had engaged a solar contractor and he [626] intended to proceed with his project starting in January 2008. Hawley also tried to respond to the ACC’s concerns. The ACC, however, saw no indication that appellants had investigated installation of the solar panels on the casita roof or that they had made efforts to comply with the ACC’s other requests. The Tesoro Board also directed Prime to prepare a timeline of events concerning appellants’ application, and after review concluded that all applicable time limits had been satisfied.

On December 18, 2007, appellants received a letter from Tesoro’s attorney, Jeffrey Beaumont, instructing them to stop further efforts to install a solar energy system on their property. Beaumont wrote to appellants again during the first week of January 2008, instructing them to stop construction.

Nonetheless, appellants proceeded with the installation of a solar energy system in January 2008. The system involved installing solar panels on the roof, and, in preparation for additional panels to be installed on the slope, removing landscaping and pouring a concrete foundation for pylons. Ultimately, by mid-January 2008, appellants agreed to stop construction temporarily pending Tesoro’s request for additional information. Following a January 23, 2008 meeting between appellants, Hawley, and Tesoro and Euclid Management representatives, appellants agreed to submit a revised application and Tesoro agreed to review and rule on the application within one week. The supplemental application added the installation of solar panels on the roof.

On January 29, 2008, the ACC denied the supplemental application in part, specifically disapproving the installation of solar panels on the slope and directing appellants to return the slope to its original condition. The ACC remained concerned about the same issues that led to the denial of the initial application, including that appellants had not considered alternative locations. After receiving this letter, appellants directed their contractor to complete the installation of solar panels on the slope. The system was fully installed by the end of March 2008.

Pleadings, Trial and Judgment.

The Tesoro Board met in an executive session in mid-February and authorized the filing of a lawsuit against appellants. It understood that it had the authority to initiate a lawsuit to enforce the CC&R’s without a vote of the entire Tesoro membership. As part of its decision, the Tesoro Board considered that several homeowners had complained about the solar panels on the slope; they had submitted a signed petition and communicated their concerns to Euclid Management.

During a full meeting of the Tesoro homeowners on March 25, 2008, an ACC representative reported that a lawsuit had been filed that day against [627] appellants because they had not followed architectural procedures before installing a solar energy system on their slope. Tesoro’s complaint alleged causes of action for breach of contract and negligence and sought declaratory and injunctive relief. The trial court denied appellants’ special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16. Tesoro thereafter filed the operative first amended complaint, which alleged the same causes of action and generally alleged that appellants’ solar energy system construction and installation failed to comply with several provisions of the CC&R’s.

Appellants answered and cross-complained against Tesoro, alleging claims for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of the California Solar Rights Act (Civ. Code, § 714) fn. 4 and declaratory and injunctive relief. Generally, they alleged that Tesoro failed to comply with both section 714 and its own CC&R’s in denying their solar energy system application.

Tesoro moved for summary judgment on its complaint and the cross-complaint, and appellants moved for summary judgment on the complaint only. The trial court denied both motions, ruling that triable issues of fact existed as to whether Tesoro complied or substantially complied with its CC&R’s and applicable law; whether Tesoro filed the action in accordance with the CC&R’s; whether Tesoro’s asserted noncompliance excused appellants’ proceeding with the installation of their solar energy system despite having notice of Tesoro’s denial; and whether Tesoro’s denial complied with section 714. Summarizing, the trial court ruled that the claims in the complaint and cross-complaint turned on whether the parties met their obligations under the CC&R’s and governing law.

In June 2009, Tesoro designated four expert witnesses to testify at trial. It designated solar energy forensic consultant Rod Bergen to testify regarding Tesoro’s compliance with section 714 in dealing with appellants’ solar energy system; the engineering, design and installation of solar energy systems generally; appellants’ solar energy system as installed; and alternatives to that system. Appellants did not designate any expert witnesses. In September 2009, the trial court granted Tesoro’s motion to strike appellants’ untimely expert designation offered three weeks late. The parties later stipulated that appellants would be permitted to call experts to rebut any of the facts relied on by Tesoro’s experts; appellants experts were precluded, however, from offering their own opinions.

In October 2009, the trial court granted Tesoro’s request for a jury trial. Appellants had objected to trial by jury, arguing that although Tesoro had [628] timely posted jury fees in accordance with a local rule requiring posting 25 days before the actual trial date, it had not complied with Code of Civil Procedure section 631 requiring that jury fees be posted 25 days before the “initial” trial date. The trial court allowed a jury trial, determining there was some ambiguity between the two provisions and that appellants had failed to demonstrate any prejudice as a result of allowing trial by jury.

Before trial began, the trial court also ruled on several motions in limine, denying appellants’ motion to preclude Tesoro from offering expert testimony, appellants’ motion to limit the testimony concerning the meaning of the CC&R’s, appellants’ motion to preclude evidence that Tesoro did not timely provide its notice of denial and appellants’ motion to preclude evidence that the notice of denial was incomplete.

As part of the jury instructions, the trial court informed the jury about the nature of the dispute and the parties’ contentions, stating that Tesoro claimed it was entitled to declaratory and injunctive relief because appellants had breached the CC&R’s by installing their solar energy system without written approval. It further stated that appellants claimed Tesoro breached section 714 and the CC&R’s by improperly reviewing and denying their solar energy system application, thereby entitling them to declaratory and injunctive relief.

Following a 10-day trial, on November 2, 2009, the jury returned a special verdict. It found that Tesoro did nothing prohibited by the CC&R’s or governing law, nor did it fail to do anything required by the CC&R’s and governing law with respect to its consideration of appellants’ solar energy system. It further found that Tesoro did not breach the implied covenant of good faith and fair dealing, did not violate section 714, responded to appellants’ application within the time limits set forth in the CC&R’s, responded to appellants’ application in the same manner as other applications for a change or modification to property and was entitled to the relief requested. With respect to appellants, the jury found that they either did something prohibited or failed to do something required by the CC&R’s and governing law in connection with their solar energy system. It found they were not excused from complying with the CC&R’s and governing law. The jury determined that appellants were not entitled to any relief and were required to remove the 22 solar panels from their hillside slope.

In December 2009, the trial court entered a judgment in favor of Tesoro that incorporated the special verdict findings. As part of the judgment, appellants were ordered to remove the 22 solar panels installed on the slope and to return the slope landscaping to its original condition within 60 days of entry of judgment. The trial court further ordered that appellants take nothing on their cross-complaint and awarded Tesoro its attorney fees and costs. [629]

Appellants thereafter filed motions for judgment notwithstanding the verdict and for a new trial. Following a February 10, 2010 hearing, the trial court denied both motions. This appeal followed.

DISCUSSION

Appellants contend there are multiple reasons why the judgment should be reversed. We loosely classify their arguments into three categories: Legal, procedural and evidentiary. Addressing each category in turn, we find no basis for reversal.

I. Appellants’ Legal Claims.

Appellants raise several issues relating to the interpretation and application of section 714, contending that any issue relating to that provision should not have gone to the jury, the CC&R’s as a matter of law failed to comply with that provision and Tesoro did not satisfy its burden under the statute. Keeping in mind that we review these questions from a jury verdict, we find no merit to appellants’ contentions.

A. Appellants Properly Submitted the Question of Compliance with Civil Code Section 714 to the Jury.

[1] Section 714 prohibits homeowners associations from imposing covenants, conditions or restrictions that effectively prohibit the installation of a solar energy system. (§ 714, subd. (a).) The statute further provides: “This section does not apply to provisions that impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits.” (§ 714, subd. (b).) Section 714 defines “significantly” as “an amount exceeding 20 percent of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20 percent, as originally specified and proposed” for a solar water or swimming pool heating system, and as “an amount not to exceed two thousand dollars ($2,000) over the system cost as originally specified and proposed, or a decrease in system efficiency of an amount exceeding 20 percent as originally specified and proposed” for a photovoltaic system. (§ 714, subds. (d)(1)(A) & (B).)

[2] Appellants now contend that the issue of Tesoro’s compliance with section 714 was a question of law that should not have been submitted to the [630] jury. They ignore the well settled rule “‘that the theory upon which a case is tried must be adhered to on appeal. A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.’ [Citations.]” (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1351, fn. 12; see also Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316 [“It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory”].)

Consistently throughout the proceedings below, appellants maintained that the question of Tesoro’s compliance with section 714 was a question of fact. In opposing Tesoro’s motion for summary judgment, they argued that whether Tesoro acted reasonably under the statute was a question of fact. Before trial began, they did not ask the trial court to determine the issue of compliance as a matter of law. During their opening statement, they told the jury that whether they had the right to install their solar panels involved a “factual determination” that it would have to make. They questioned witnesses about the application of section 714. During closing argument, they reiterated that it was the jury’s obligation to apply California law to the situation presented. They stipulated that the jury receive instructions on section 714; the jury received those instructions and determined by special verdict that Tesoro did nothing to violate the statute. In their post-trial motions, they argued that substantial evidence did not support the jury’s verdict that Tesoro complied with section 714–not that the jury was prohibited from deciding the question.

Appellants are bound by their decision to submit to the jury the question of Tesoro’s compliance with section 714. As aptly stated by the court in Shumate v. Johnson Publishing Co.(1956) 139 Cal.App.2d 121, 130: “A party cannot successfully take advantage of asserted error committed by the court at his request. [Citation.] The request that the jury be instructed as requested by defendants necessarily constituted consent to submission of the issue as a question of fact to be resolved by the jury. [Citation.] A party cannot request that an issue be submitted to a jury as a question of fact and on review escape the consequences.”

[3] Moreover, appellants’ position below was correct. Section 714, subdivision (b) permits homeowners association to impose “reasonable restrictions” on solar energy systems that do not significantly increase the cost of the system or decrease its efficiency. The determination of whether Tesoro’s CC&R’s and Design Guidelines imposed “reasonable” restrictions was necessarily a question of fact for the jury. (See Ayres v. City Council of [631] Los Angeles(1949) 34 Cal.2d 31, 41 [considering reasonableness of subdivision restrictions enacted pursuant to the Subdivision Map Act and observing “[q]uestions of reasonableness and necessity depend on matters of fact”]; Terry v. Atlantic Richfield Co. (1977) 72 Cal.App.3d 962, 966 [“Except where there is no room for a reasonable difference of opinion, the reasonableness of an act or omission is a question of fact, that is, an issue which should be decided by a jury”]; Robinson v. City and County of San Francisco (1974) 41 Cal.App.3d 334, 337 [“Where evidence is fairly subject to more than one interpretation, the question ofreasonablenessis a triable factual issue for the jury to decide”].)

B. Substantial Evidence Supported the Jury’s Finding that the CC&R’s Imposed Reasonable Restrictions.

Appellants’ next–and also new–contention is that the CC&R’s and Design Guidelines applicable to solar energy systems are unreasonable as a matter of law. Again, their position on appeal is contrary to the position they took below, where they requested and the jury received an instruction providing: “The parties stipulate that they are bound by the C.C.&Rs, Bylaws, and Design Guidelines which have been referred to as part of the Governing Documents and that such Governing Documents constitute the binding contract between Plaintiff and Defendants.” The jury was further instructed that appellants claimed Tesoro breached the governing documents by not complying with their provisions, and that Tesoro had the burden to show its procedures were fair and reasonable. Having submitted to the jury the question of whether Tesoro complied with the CC&R’s and Design Guidelines, appellants cannot now ignore the jury’s determination by attempting to change the question. (E.g., Kantlehner v. Bisceglia (1951) 102 Cal.App.2d 1, 6 [“Counsel may not so conduct themselves in the trial of a case as to lead the jury to proceed upon one theory and then seek to abandon that theory upon appeal and adopt another one”].)

[4] Again, appellants’ position below was correct. Generally, homeowners associations have the right to impose reasonable CC&R’s on improvements to property. (§ 1354, subd. (a) [“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”];Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 977 [“California and many other jurisdictions have long upheld such general covenants vesting broad discretion in homeowners associations or boards to grant or withhold consent to construction”]; Palos Verdes Homes Assn. v. Rodman (1986) 182 Cal.App.3d 324, 328 (Palos Verdes Homes) [“The right to enforce [632] covenants that require approval of construction has long been recognized in California”].) Generally, recorded use restrictions are accorded a presumption of validity and are enforced “unless they are wholly arbitrary, violate a fundamental public policy or impose a burden on the use of affected land that far outweighs any benefit.” (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 382.)

In Palos Verdes Homes, supra, 182 Cal.App.3d 324, the court determined that whether a homeowners association’s design restrictions on a solar energy system were reasonable was a question of fact. There, a homeowner installed a residential solar energy system after the Palos Verdes Homes Association had denied his application for installation on the basis that the system did not conform to its solar unit guidelines. The association prevailed on its declaratory relief claim at trial, and the court of appeal affirmed. According to the court: “The issue here is whether the Association’s Guidelines are a ‘reasonable restriction’ on the installation of solar units, as required by section 714. This is a question of fact to be determined by the trier of fact. Its conclusion will not be disturbed unless unsupported by substantial evidence. [Citation.]” (Id. at p. 328.) The court summarized the testimony of the association’s expert, who opined that the solar energy systems permitted by the association’s guidelines were comparable to the homeowner’s proposed system in performance and cost. (Id. at pp. 328–329.) Because the testimony showed that the “guidelines do not prohibit all solar units but are formulated to promote the installation of solar units which are comparable in costs and aesthetically acceptable,” the court concluded that substantial evidence supported the judgment. (Id. at p. 328.)

[5] The same result is required here. The CC&R’s provide that the approval or disapproval of applications for improvements “shall be in the sole and absolute discretion of the [ACC] and may be based upon such aesthetic considerations as the [ACC] determines to be appropriate.” The Design Guidelines temper this discretion with respect to the installation of solar energy systems. They specifically mirror section 714 and provide that the ACC may impose reasonable restrictions “that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or which allow for an alternative system of comparable costs, efficiency, and energy conservation . . . .” As in Palos Verdes Homes, supra, 182 Cal.App.3d at page 328, an expert testified about a comparable alternative system to appellants’ installation of 22 panels on their slope. Bergen explained that the installation of 16 to 20 panels in an area above the casita would yield the same performance efficiency but have a 14 percent reduction in output. He further testified that the proposed system would be less expensive to install than the slope panels. Bergen’s testimony established that the CC&R’s and Design Guidelines allowed for an alternative solar energy system of comparable costs and efficiency that did not significantly increase [633] the cost or decrease the efficiency of the system sought by appellants. Substantial evidence supported the jury’s conclusion that CC&R’s imposed reasonable restrictions that were in compliance with section 714.

[6] That the CC&R’s permit the ACC to consider the aesthetic impact of a solar energy system provides no basis for reversal. Nothing in the language of section 714 prohibits the consideration of aesthetic impacts. To the contrary, the provision in section 714 that “the application for approval shall be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property” indicates that the Legislature specifically anticipated that an evaluation of a proposed solar energy system–just as any other proposed improvement–would involve the consideration of aesthetics. (§ 714, subd. (e)(1).) Consistent with that language, the Palos Verdes Homes court concluded that guidelines primarily involving aesthetic considerations were reasonable and met the standards of section 714. (Palos Verdes Homes, supra,182 Cal.App.3d at p. 327.)

[7] We are likewise unpersuaded by appellants’ argument that Tesoro had the burden to propose a comparable alternative system at the time it denied appellants’ application. Again, nothing in the language of section 714 imposes such a burden on a homeowners association. The statute requires only that the denial of a solar energy system application be in writing and in a timely manner. (§ 714, subd. (e)(2).) Nor do the CC&R’s or Design Guidelines require that the ACC redesign a solar energy system that fails to garner approval. Instead, the burden is on the homeowner to submit an application that is complete and sufficient to generate approval. ACC member Collins testified that it has never been the practice of the ACC to propose an alternative design and that he did not feel qualified to redesign a solar energy system. The evidence established that once the ACC informed appellants of the bases of its denial, it was their burden to reapply for approval of a solar energy system utilizing an application that satisfied the procedural requirements in the CC&R’s and that addressed the ACC’s concerns about location, safety and aesthetics. Appellants failed to meet their burden

II. Appellants’ Procedural Claims.

Notwithstanding the bases for Tesoro’s denial of appellants’ solar energy system application, appellants contend that the process by which Tesoro denied the application and initiated and tried this action was invalid. Specifically, they contend that the ACC’s denial was untimely, inadequately mailed and incomplete; that the lawsuit was improperly initiated without a vote of the entire association; and that Tesoro should not have received a jury trial because it did not timely pay its jury fees. With the exception of the payment [634] of jury fees, appellants submitted these issues to the jury for resolution, asserting during closing argument that the key question in the matter was whether Tesoro followed the appropriate procedures. We find no merit to any of appellants’ procedural challenges.

A. Substantial Evidence Established That Tesoro’s Denial Complied with the CC&R’s.

The jury answered “yes” to the question of whether “Plaintiff respond[ed] to Defendants’ application for approval or disapproval of the installation of their solar energy system within the time limits set forth in the Governing Documents?” We review a jury’s findings of fact under the deferential substantial evidence standard. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053 superseded by statute in another point as stated in DeBarard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.) According to this standard, “‘”the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below.'” (Ibid.) We must view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. (Ibid.) We are not at liberty to reweigh the evidence or judge the credibility of witnesses. (Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 849.)

According to a provision in the section of the CC&R’s governing improvement applications, “all approvals given pursuant to this Article shall be in writing; and any request for approval which has not been approved or disapproved, in writing, within forty-five(45) days from the date of receipt of all documentation required to be submitted by the Committee shall be deemed approved . . . .” Here, the evidence showed that appellants submitted their solar energy system application on October 2, 2007. Prime testified that Martin personally delivered the application on that date, and the application itself bore a “received” stamp dated October 2, 2007. The jury was entitled to discredit Martin’s alternating recollection that he submitted the application on September 27 or October 1, 2007. (E.g., Moreno v. Sayre(1984) 162 Cal.App.3d 116, 121 [“It is the province of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses”].)

The ACC denied appellants’ application by letter dated November 8, 2007, a date within 45 days of receipt of appellants’ application. Thus, substantial evidence supported the jury’s finding that Tesoro responded within the time limits provided by the CC&R’s. The evidence further showed, however, that [635] appellants did not receive the denial letter until November 17, 2007 because it was misaddressed. But the jury was instructed that Tesoro had the burden to prove that it “did all, or substantially all, of the significant things that the Governing Documents required it to do or that it was excused [from] doing those things.” It was well within the jury’s province to conclude that Tesoro substantially complied with its obligations under the CC&R’s notwithstanding appellants’ receipt of the denial letter 46 days after they submitted their application. (See Moreno v. Sayre, supra,162 Cal.App.3d at p. 121 [“When two or more inferences can be reasonably drawn from the facts, the reviewing court is without power to substitute its deductions for those of the jury”].) The jury could have concluded that the one-day delay was inconsequential given that appellants had already signed the contract to proceed with the installation of their solar energy system several days before the time to rule on their application had expired.

The evidence further showed that Prime mailed the denial letter by regular mail. We reject appellants’ argument that this evidence showed Tesoro failed to comply with section 16.11 of the CC&R’s, which provides in relevant part: “Any notice permitted or required by this Declaration shall be considered received on the date the notice is personally delivered to the recipient or forty-eight (48) hours after the notice is deposited in the United States mail, first-class, registered or certified mail, postage prepaid and addressed to the recipient at the address which the recipient has provided to the Association . . . .” Contrary to appellants’ suggestion that this provision requires notices to be sent by registered or certified mail, the provision is plainly limited to specifying a date by which notice is deemed received if it is sent by first-class, registered or certified mail. In short, appellants’ argument affords no basis to disturb the jury’s finding that Tesoro did all or substantially all of the significant things it was required to do under the CC&R’s.

Finally, appellants contend that substantial evidence did not support the jury’s affirmative answer to the question “Did Plaintiff respond to Defendants’ application for approval or disapproval of their solar energy system in the same manner as any other applications for a change or modification to property?” They argue that the denial letter improperly failed to articulate the bases for the denial. (See § 1378, subd. (a)(4) [“If a proposed change is disapproved, the written decision shall include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision by the board of directors”].) The evidence belies their claim. Martin himself testified that attached to the November 2007 denial letter were four handwritten comments from the ACC indicating that the casita roof should be considered as an alternate location, the site plan failed to show dimensions and setbacks, the application omitted any provision for slope maintenance and the application lacked photographs of the proposed site. Martin conceded that he read the comments when he received the denial [636] letter. He further conceded that his application in fact lacked the requisite items identified by the ACC as missing. Later, in January 2008, the ACC approved the rooftop panel installation but disallowed the panels on the slope for the reasons stated earlier and discussed by all parties at their January 23, 2008 meeting. Substantial evidence showed that Tesoro provided an adequate explanation of why appellants’ solar energy system application was ultimately denied in part.

The evidence further showed that to the extent Tesoro denied appellants’ application, it adequately advised him of his appeal rights. (§ 1378, subd. (a)(4).) Though the January 2008 letter did not include information about appeal rights, Martin testified that at all times he had in his possession copies of the CC&R’s and Design Guidelines and was aware of the provision for appeal contained in the CC&R’s. Section 7.2.8 of the CC&R’s provides a detailed explanation of a homeowner’s appeal rights in the event the ACC disapproves an application. Evidence that appellants had been advised of their appeal rights through the CC&R’s supported the jury’s findings that Tesoro did all or substantially all it was required to do under California law and appropriately responded to appellants’ application in a manner required for all similar applications. (See Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29 [“Substantial compliance, as the phrase is used in the decisions, means actual compliance in respect to the substance essential to every reasonable objective of the statute”].

B. Substantial Evidence Established That Tesoro Properly Brought This Action in Accordance with the CC&R’s.

As part of its claim that Tesoro failed to comply with its own CC&R’s, appellants sought to show that Tesoro improperly initiated this action without a full vote of the membership. fn. 5 The jury resolved this question against appellants, concluding that Tesoro did all or substantially all it was required to do under the CC&R’s. Appellants do not contend that the jury should not have resolved this question, but instead simply choose to ignore that conflicting evidence was presented on the issue, the jury received multiple instructions on contract interpretation and the jury decided the issue. Where extrinsic evidence has been properly admitted to aid in the interpretation of a contract, we uphold a reasonable construction of the agreement by the trier of fact which is supported by substantial evidence. (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746–747.)[637]

During cross-examination, appellants’ counsel questioned Collins about section 4.1.2(k) of the CC&R’s, which provides in part that Tesoro has the right “to prosecute or defend, in the name of the Association, any action affecting or relating to the Project or the personal property thereon . . . provided, however, that without the prior vote or written consent of a majority of the voting power of the Members of the Association, the Board may not institute any legal proceeding (including any arbitration or judicial reference proceeding) against any person or entity the cost of which could reasonably be expected to exceed Two Thousand Five Hundred Dollars ($2,500.00),” including an estimate of attorney fees and costs. Collins testified that no poll or vote of the homeowners was taken prior to Tesoro’s initiating this action against appellants. Martin similarly testified that he was unaware of any meeting of the homeowners where they were given an opportunity to vote on or receive notice of any intent to file a lawsuit, nor was he given any notice of the special assessment ultimately imposed to finance the litigation.

On redirect examination, however, Collins testified that the Tesoro Board had relied on other provisions in the CC&R’s–as well as the advice of counsel–to conclude it had the ability to initiate suit without a full vote. Specifically, it relied on section 4.1.2(e), which gives Tesoro the right “to enforce, in its discretion, the provisions of this Declaration, the Bylaws, Articles and Rules and Regulations of the Association . . . .” He testified that counsel had advised him section 4.1.2(k) was never intended to limit the Tesoro Board’s discretion under section 4.1.2(e) to file suit against a homeowner. The Tesoro Board also relied on section 10.9 of the CC&R’s, which provides: “Notwithstanding anything herein to the contrary, no judicial or administrative proceeding shall be commenced or prosecuted by the Association unless approved by a majority of the voting power of the membership. This Section shall not apply, however, to (a) actions brought by the Association to enforce the provisions of this Declaration,” the collection of assessments, challenges to ad valorem taxes and counterclaims brought by Tesoro.

The owner of Euclid Management, Glennon Gray, further testified that he was familiar with section 4.1.2(k) of the CC&R’s and that the provision did not operate to prevent Tesoro from filing an action against a single homeowner to enforce the CC&R’s. Rather, his understanding was that it applied when a homeowners association was contemplating suing the developer.

[8] On the basis of this testimony, substantial evidence supported the jury’s determination that Tesoro complied with the CC&R’s in bringing this action without a full vote of the homeowners. (See Rosen v. E. C. Losch Co. (1965) 234 Cal.App.2d 324, 331 [“‘The practical construction placed upon the agreement by the parties is, of course, substantial [638] evidence of their intent'”]; Nicolaysen v. Pacific Home (1944) 65 Cal.App.2d 769, 773 [“‘The law recognizes the practical construction of a contract as the best evidence of what was intended by its provisions'”].

C. Tesoro Properly Received a Jury Trial.

Appellants’ final procedural challenge is that Tesoro should not have received a jury trial because it did not post jury fees in a timely manner. Before trial, appellants argued that Tesoro had waived its right to a jury trial on the ground that it had not posted jury fees in accordance with Code of Civil Procedure section 631, subdivision (b), which specifies that jury fees must be deposited “at least 25 calendar days before the date initially set for trial” by “[e]ach party demanding a jury trial . . . .” Tesoro conceded that it had posted jury fees 25 days before the date set for the actual trial, which was timely according to Los Angeles County Superior Court Local Rule 5.0. Following briefing and argument by counsel, the trial court permitted a jury trial to go forward, reasoning that Tesoro had demonstrated an inadvertent mistake in relying on the local rules and appellants had failed to demonstrate any prejudice from proceeding with a jury trial.

[9] Generally, the failure to deposit jury fees at least 25 calendar days before the date initially set for trial constitutes a waiver of the right to a jury trial. (Code Civ. Proc., § 631, subds. (b) & (d)(5); Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 956.) Nonetheless, in the event of a waiver, the trial court retains discretion to allow a trial by jury. (Code Civ. Proc., § 631, subd. (e); Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 810; Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703–1704.) In exercising such discretion, courts are mindful of the requirement “to resolve doubts in interpreting the waiver provisions of section 631 in favor of a litigant’s right to jury trial. [Citations.]” (Grafton Partners v. Superior Court, supra,at p. 956.) Accordingly, “[w]here the right to jury is threatened, the crucial focus is whether any prejudice will be suffered by any party or the court if a motion for relief from waiver is granted. [Citation.] A trial court abuses its discretion as a matter of law when ‘. . . relief has been denied where there has been no prejudice to the other party or to the court from an inadvertent waiver. [Citations.]’ [Citations.]” (Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 104.)

Here, the trial court properly exercised its discretion to allow the case to be heard before a jury. Tesoro demonstrated that it made an inadvertent mistake by relying on the local rule timeline. (Winston v. Superior Court (1987) 196 Cal.App.3d 600, 602–603 [inadvertent waiver shown where failure to post fees occurred from inconsistency in the time requirement among statutes].) And neither below nor on appeal have appellants [639] demonstrated any prejudice from a trial by jury. (See Johnson-Stovall v. Superior Court, supra, 17 Cal.App.4th at p. 811 [“The mere fact that trial will be by jury is not prejudice per se”]; Gann v. Williams Brothers Realty, Inc., supra, 231 Cal.App.3d at p. 1704 [“The prejudice which must be shown from granting relief from the waiver is prejudice from the granting of relief and not prejudice from the jury trial”].) “The court abuses its discretion in denying relief where there has been no prejudice to the other party or to the court from an inadvertent waiver.” (Gann v. Williams Brothers Realty, Inc., supra, at p. 1704.) Indeed, it would have been an abuse of discretion for the trial court to deny relief here.

III. Appellants’ Evidentiary Issues.

In two related arguments, appellants contend that the trial court abused its discretion by permitting Bergen to testify as an expert on Tesoro’s behalf and by not permitting them to present rebuttal expert testimony. We review the trial court’s admission or exclusion of expert testimony under the deferential abuse of discretion standard. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972.)

A. Allowing Bergen to Testify was a Proper Exercise of Discretion.

Bergen, a licensed contractor and electrical engineer who had installed over 2,000 solar energy systems, evaluated appellants’ solar energy system as installed and opined that the slope location was inappropriate based on a number of factors. He further testified that a different configuration of panels could be more efficient and cost-effective. He also opined about how removal of the slope panels and replacement with his suggested alternative would affect the efficiency and cost of appellants’ solar energy system.

[10] Appellants contend that it was an abuse of discretion to admit Bergen’s testimony because he lacked any “special knowledge” that would qualify him as an expert. (Evid. Code, § 720, subd. (a) [“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates”].) They contend that the matters about which he testified were matters of common knowledge inappropriate for expert testimony. (See Evid. Code, § 801, subd. (a) [expert opinion is admissible when it is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact”]; People v. Torres (1995) 33 Cal.App.4th 37, 45 [“Expert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness”].) They claim that [640] Bergen’s testimony about the reduction in efficiency resulting from a modification to appellants’ system could have been calculated using simple math–that is, a reduction of 22 panels from a total of 56 would have equaled an approximate 40 percent reduction in efficiency.

[11] But the calculation was not so simple. Bergen explained that efficiency is calculated taking into account the angle of the solar panels, the orientation of the panels in relation to the sun, the inverter design, surface area and shade factor. He used an incronometer to measure the angle of the slope panels. In describing the design of his alternative system, Bergen explained how an installation of fewer than 22 panels would result in only a minimal reduction in output. He further testified about the cost of labor and materials for his alternative design. All of these matters were beyond the jury’s common knowledge. (See Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38 [witness qualifies as an expert where he “has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth, and ‘no hard and fast rule can be laid down which would be applicable in every circumstance'”].)

Nor are we persuaded by appellants’ renewed argument that Bergen should not have been permitted to testify because he described an alternative solar energy system that Tesoro did not propose at the time it disallowed appellants’ proposed system. Again, nothing in either section 714 or the CC&R’s required Tesoro to design an alternative system, and the evidence established that it was not the ACC’s practice to redesign an applicant’s proposal. The trial court properly exercised its discretion to permit Bergen to testify about the efficiency and cost of appellants’ system as compared to an alternative system

B. Appellants Stipulated They Would Not Offer Expert Testimony in Rebuttal.

As a means of resolving Tesoro’s motion to preclude appellants from offering any expert testimony because of their failure timely to designate experts, the parties stipulated that appellants would be permitted to call Tesoro’s experts and their own experts to rebut the factual bases for any opinions offered by Tesoro’s experts. Appellants specifically agreed, however, that they would not be permitted to call their own experts to offer rebuttal opinions. Notwithstanding this stipulation, they now argue that the trial court abused its discretion by not permitting them to call rebuttal witnesses to offer their own expert opinions. By stipulating not to offer expert opinions, appellants have waived any claim on appeal that the trial court abused its discretion by enforcing the stipulation. (E.g., In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501 [“an appellant waives [641] his right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal”].)

[12] Even absent any stipulation, we would find no abuse of discretion. The general rule, set forth in Code of Civil Procedure section 2034.300, is that an undesignated expert witness may not testify. An exception to that rule is provided in Code of Civil Procedure section 2034.310, which permits a party to call an undesignated expert witness to testify if the expert has already been designated by another party, or if “[t]hat expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial. This impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation for any opinion by any other party’s expert witness, but may not include testimony that contradicts the opinion.” (Code Civ. Proc., § 2034.310, subds. (a) & (b).) Trial courts strictly construe the foundational fact requirement in Code of Civil Procedure section 2034.310 “so as to ‘prevent a party from offering a contrary opinion of his expert under the guise of impeachment.’ [Citation.]” (Mizel v. City of Santa Monica (2001) 93 Cal.App.4th 1059, 1068.)

Here, there was no indication that any of appellants’ three proposed rebuttal expert witnesses satisfied the requirements of the statutory exception. fn. 6 Appellants sought to call Jamie Muniak, a certified property manager, to offer his own opinions about customs and practices in the property management industry. They also called Marco Suarez, the owner of Advanced Solar Electric, as a percipient witness, but the trial court sustained objections to questions designed to elicit expert opinion about solar energy system installations. Finally, appellants sought to call a contractor, identified as Mr. Alcantar, to offer an opinion about the cost of Bergen’s proposed alternative system and testify about his proposed bid. His testimony would have been based on his construction experience and did not include any testimony designed to establish the falsity or nonexistence of any fact relied on by Bergen in making his costs estimate. In any event, Martin was permitted to testify about other estimates he had received to construct the solar energy system proposed by Bergen.

[13] “The trial court is vested with a sound discretion as to the permissible scope of evidence offered in rebuttal. [Citation.]” (Johnston v. Brewer (1940) 40 Cal.App.2d 583, 588.) Because appellants’ proffered rebuttal expert testimony failed to satisfy the requirements of Code of Civil Procedure section 2034.310, the trial court properly exercised its discretion in precluding such testimony.[642]

DISPOSITION

The judgment is affirmed. Tesoro is awarded its costs on appeal. fn. 7

Ashmann-Gerst, J., and Chavez, J., concurred.

FN 1. We occasionally refer to appellant Martin Griffin individually by first name to avoid confusion and not out of disrespect.

FN 2. At trial, Martin testified that he believed he submitted the application on September 27, 2007.

FN 3. The ACC had cancelled its regularly-scheduled October meeting because the area was evacuated for a fire. For that reason, it did not consider appellants’ application until November 6, 2007.

FN 4. Unless otherwise indicated, all further statutory references are to the Civil Code.

FN 5. We decline to address appellants’ argument on this issue to the extent it is premised on the denial of their summary judgment motion. (E.g., California Housing Finance Agency v. Hanover/California Management & Accounting Center, Inc. (2007) 148 Cal.App.4th 682, 688-689 [denial of summary judgment unreviewable after a full trial on the same issues]; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833-836 [same].)

FN 6. That appellants failed to make an offer of proof of their witnesses’ proposed testimony is yet an independent reason why any claim of error has been waived. (E.g., In re Mark C. (1992) 7 Cal.App.4th 433, 444.)

FN 7. In its respondent’s brief, Tesoro has requested an award of attorney fees on appeal. We decline to consider its request. California Rules of Court, rule 3.1702(c) sets forth the procedure for claiming attorney fees on appeal. (See also Cal. Rules of Court, rule 8.278(d)(2).)

Cohen v. Kite Hill Community Association

(1983) 142 Cal.App.3d 642

[Architectural Control; Duty to Act in Good Faith] When exercising its architectural control authority, an association owes a fiduciary duty to its members to act in good faith, and to not make decisions that are arbitrary or capricious.

COUNSEL

Hickey, Neuland, Pardes & Colletta and Richard P. Neuland for Plaintiffs and Appellants. Feldsott, Lee & Van Gemert and Martin L. Lee for Defendant and Respondent.

OPINION

McDANIEL, J.

This is an appeal from a judgment of dismissal entered after an order sustaining the demurrer of defendant, Kite Hill Community Association (the Association), to the plaintiffs’ fourth amended complaint. Because we conclude that the plaintiffs finally succeeded in pleading a cause of action, we shall reverse the judgment.

FACTS [FN. 1]

As reflected by the allegations of plaintiffs’ complaint, Kite Hill is a residential community located in the rolling hills of southern Orange County.

Plaintiffs, Mr. and Mrs. Cohen, purchased a lot in Kite Hill which afforded a panoramic view of the surrounding countryside. They paid a premium for this view.

The Association, a nonprofit corporation duly organized and existing under the laws of California, is composed of all of the homeowners in Kite Hill. It [646] was organized by the developer, S & S Construction Company, for the purpose of administering and enforcing the declaration of covenants, conditions and restrictions (the Declaration) which was recorded as to the entire tract and incorporated by reference into the respective deeds by which all Kite Hill residents acquired their homes in this tract. The Declaration was also attached as an exhibit to the complaint.

Every owner of a lot in Kite Hill is automatically a member of the Association and subject to payment of regular and special assessments to the Association for the purpose of carrying out its community functions.

Shortly after the Cohens purchased their home, they submitted to the Association’s architectural committee (the Committee) plans for certain improvements and landscaping in their front and rear yards. The Declaration requires that such plans be submitted to the Committee in writing and be approved before any construction can begin.

One part of the plan approved by the Committee was a slump stone and wrought iron fence (a two-foot slump stone base topped by a three-foot iron fence). This is the type of fence designated by the Declaration for use in a lot such as the Cohens’; i.e., a side yard with a view.

Shortly thereafter, plaintiffs’ neighbors, the Ehles, received approval from the Committee to construct a solid slump stone fence immediately adjacent to the Cohens’ slump stone and wrought iron fence. The Ehles’ is the type of fence designated in the Declaration for a side yard without a view.

Plaintiffs objected to the installation of the nonconforming fence because they believed that it would materially obstruct their view. However, their efforts to persuade the Ehles and the Association to modify or prevent the construction were unsuccessful.

The Cohens then initiated this lawsuit against the Ehles and the Association, [FN. 2] and contemporaneously sought a temporary restraining order to prevent the Ehles from completing construction of the fence. Although the attorneys for plaintiffs and the Ehles stipulated to the issuance of a temporary restraining order pending a hearing, the fence was substantially completed by the time the hearing occurred. The trial court denied the temporary restraining order, and the plaintiffs withdrew their application for a preliminary injunction.

[647] Plaintiffs’ complaint [FN. 3] alleged that the Association and its architectural committee, in approving the Ehles’ construction plans, had: (1) breached the covenants contained in the Declaration; (2) breached their fiduciary duty owed to plaintiffs; (3) breached their duty of good faith and fair dealing; (4) been negligent; and (5) committed “willful misconduct or other intentional conduct.”

In the key charging allegations, the complaint alleged that the “solid wall of slump block as approved by the Association and installed by Defendants Ehle is not a permitted fence under Exhibit `C’ of the Kite Hill Restrictions …”; that the “approval by the Architectural Committee of the Architectural [sic] plans of Defendants Ehle … is in violation of the mandates of the Kite Hill Restrictions and a clear abuse of their discretion”; that the Association acted “with full knowledge of their breach of the recorded Kite Hill Restrictions … [and] … in willfull, conscious and reckless disregard for Plaintiffs’ rights”; and, that “as a direct and proximate result of the Defendant’s [sic] violation of the Kite Hill Restrictions the Plaintiffs have been damaged for the loss of use and enjoyment of their property and for diminution in the value of their property….”

Plaintiffs sought damages and a mandatory injunction to compel the Association to take certain steps to force the Ehles to comply with the architectural standards set forth in the Declaration.

The Association demurred to the plaintiffs’ complaint on the ground that it failed to state a cause of action and that it was “uncertain and unintelligible.” The trial court sustained the Association’s demurrer to the complaint. After the judgment of dismissal, plaintiffs filed this appeal.

DISCUSSION

A. The Association’s Duties Under the Declaration

The fundamental question presented here is whether plaintiffs’ complaint alleged facts sufficient to state a cause of action against the Association. More precisely, did the complaint allege facts sufficient to establish that the Association owed a duty to plaintiffs and that the former breached that duty, thereby entitling plaintiffs to some or all of the remedies sought? Such a determination must be based on the terms and conditions of the Declaration. We shall proceed, therefore, to an examination of the relevant provisions of this document before turning to the central question of duty.

As previously noted, the Association is a nonprofit corporation whose members are the owners of homes in the Kite Hill development in Orange [648] County. The Declaration provides that membership in the Association is mandatory for every fee owner of a lot in the development, and that every such member is subject to assessments by the Association “for the purpose of providing for and promoting the pleasure, recreation, health, safety and social welfare of the Members, including the enhancement of the value, desirability and attractiveness of the project….”

The Association is responsible for a broad catalogue of services to the community, including maintenance and landscaping of the common areas, such as pools, hot tubs, tennis courts, and utility facilities.

Another important function of the Association is to preserve the aesthetic quality and property values within the community. To this end, the Declaration contains an elaborate and detailed list of restrictions on the types of construction, improvements, landscaping and general activities which individual homeowners may install and engage in on their individual properties.

Article VII of the Declaration is concerned specifically with “Architectural and Landscaping Control” and contains 11 sections. Section 1 in pertinent part provides: “Architectural Approval. No fence, wall, building, sign or other structure (including basketball standards), or exterior addition to or change or alteration thereof (including painting) or landscaping, shall be commenced, constructed, erected, placed, altered, maintained or permitted to remain on the Project or any portion thereof, until plans and specifications shall have been submitted to and approved in writing by an architectural committee, initially to be appointed by the Declarant (the `Architectural Committee’)…. All such plans and specifications shall be in writing over the signature of the Owner of the property or such Owner’s authorized agent. Approval shall be based, among other things, on adequacy of site dimensions; adequacy of structural design and material; conformity and harmony of external design with neighboring structures; effect of location and use of improvements and landscaping on neighboring property,improvements, landscaping, operations and uses; relation of topography, grade and finished ground elevation of the property being improved to that of neighboring property; proper facing of main elevations with respect to nearby streets; preservation of view and aesthetic beauty with respect to fences, walls and landscaping; … and conformity of the plans and specifications to the purpose and general plan and intent of this Declaration. In any event, the Architectural Committee shall have the right, but not the obligation, to require any Member to remove, trim, top, or prune any shrub, tree, bush, plant or hedge which such Committee reasonably believes materially obstructs the view of any Lot. …” (Italics added.)

With regard specifically to fences, article VII, section 11 provides: “In the event that any Owner of a Lot within the Project wishes to install a fence [649] (`fence’) on his Lot in addition to complying with the other provisions of this Article, any such Owner shall also comply with the requirements of Exhibit `C’ attached hereto and incorporated herein by this reference, which Exhibit sets forth the specifications for any Fence. The location of any Fence shall be as determined by the Architectural Committee in its sole and absolute discretion; provided, however, that any Fence shall be located in such a fashion as to assure adequate access to adjacent real property in order that said real property may be maintained.” (Italics added.)

“Exhibit C” is a series of diagrams which both illustrate the type and dimensions of the fences which are approved for use in the project, and indicate where each fence may properly be located. Thus, “Sheet 1” of exhibit C (as amended) shows a solid slump block fence. The diagram specifies what type of block may be used, the dimensions of the blocks, and the maximum allowable height of the fence. This diagram is labeled “SLUMP BLOCK WALL @ SIDEYARD WITHOUT VIEW.” “Sheet 2” illustrates a second fence, this one consisting of a two-foot slump block foundation topped by a three-foot wrought iron bar section, for a total maximum height of five feet. Sheet 2 is labeled, “SLUMP BLOCK & WROUGHT IRON WALL @ REAR & SIDEYARD W/VIEW.”

As noted, the Declaration provides that all plans for any improvements must be submitted to the architectural committee. According to the Declaration, the Committee must consist of “not less than three nor more than five members.” The Committee is empowered, “in its sole discretion,” to amend the restrictions, or, “[w]here circumstances such as topography, location of property lines, location of trees, configuration of Lots, or other matters require, may … [allow] reasonable variances … provided … that all such variances [are] in keeping with the general plan for the improvement and development of the Project.”

The Association is charged, in the Declaration, with the broad affirmative duty of “administering and enforcing these covenants, conditions and restrictions.” The Declaration vests the Association with the equivalent means of enforcing its obligations, as well. Thus, article XVI, section 4, entitled “Enforcement,” provides that the association “shall have the right to enforce by proceedings at law or in equity all covenants, conditions, restrictions, easements, reservations, liens and charges now or hereafter imposed by the Declaration … including, without limitation, the right to prosecute a proceeding at law or in equity against the person or persons who have violated or are attempting to violate any of these covenants, conditions, restrictions … to enjoin or prevent them from doing so, to cause said violation to be remedied and/or to recover damages for said violation.”

[650] In addition to the affirmative duties recited above, the Declaration also contains several so-called “exculpatory” clauses. These clauses purport to absolve the Association from any affirmative duty to enforce any of the covenants, conditions and restrictions in the Declaration, and to immunize the Association from liability for any of its acts of malfeasance or nonfeasance. Thus, the concluding sentence of article VII, section 1 states: “The [Association] shall not be required to comply with any of the provisions of this Section 1.” Section 4 of the same article provides that the Association “shall (not) be liable in damages to anyone submitting plans or specifications to them for approval, or to any Owner of property affected by this Declaration by reason of mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval or disapproval or failure to approve or disapprove any such plans or specifications, …” Moreover, just in case any doubt remained as to the intent to establish the Association’s immunity to suit, Article XVI, section 12 provides: “To the fullest extent permitted by law, neither the Board, any committees of the Association nor any member shall be liable to any Member or Owner or the Association for any damage, loss or prejudice suffered or claimed on account of any decision, approval or disapproval of plans or specifications (whether or not defective), course of action, act, omission, error, negligence or the like made in good faith within which such Board, committee, or persons reasonably believed to be the scope of their duties.”

Having set forth the relevant provisions in the Declaration, we now turn to the central legal issue, the nature and extent of the Association’s duty to plaintiffs with reference to the codefendants’ fence.

(1) It is a settled rule of law that homeowners’ associations must exercise their authority to approve or disapprove an individual homeowner’s construction or improvement plans in conformity with the declaration of covenants and restrictions, and in good faith. (Hannula v. Hacienda Homes (1949) 34 Cal.2d 442, 447 [211 P.2d 302, 19 A.L.R.2d 1268]; Branwell v. Kuhle (1960) 183 Cal. App.2d 767, 779 [183 Cal. Rptr. 767].) As the court in Hannula stated: “Each of the decisions enforcing like restrictions has held that the refusal to approve plans must be a reasonable determination made in good faith.” (Hannula v. Hacienda Homes, supra, 34 Cal.2d 442, 447.) The same requirement of good faith applies equally to the approval of plans. “The converse should likewise be true, … `[T]he power to approve plans … must not be exercised capriciously or arbitrarily.'” (Bramwell v. Kuhle, supra, 183 Cal. App.2d 767, 779; see also Norris v.Phillips (Colo. App. 1981) 626 P.2d 717, 719.)

(2) Furthermore, in recognition of the increasingly important role played by private homeowners’ associations in such public-service functions as maintenance and repair of public areas and utilities, street and common area lighting, sanitation and the regulation and enforcement of zoning ordinances, [651] the courts have recognized that such associations owe a fiduciary duty to their members. (See Raven’s Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal. App.3d 783, 799 [171 Cal. Rptr. 334].)

In a thoughtful article on Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations (1976) 12 Wake Forest Law Review at page 915, the authors, Hyatt and Rhoads, note the increasingly “quasi-governmental” nature of the responsibilities of such associations: “The other essential role directly relates to the association’s regulatory powers; and upon analysis of the association’s functions, one clearly sees the association as a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government. As a `mini-government,’ the association provides to its members, in almost every case, utility services, road maintenance, street and common area lighting, and refuse removal. In many cases, it also provides security services and various forms of communication within the community. There is, moreover, a clear analogy to the municipal police and public safety functions. All of these functions are financed through assessments or taxes levied upon the members of the community, with powers vested in the board of directors, council of co-owners, board of managers, or other similar body clearly analogous to the governing body of a municipality. Terminology varies from region to region; however, the duties and responsibilities remain the same.” (Id.,at p. 918, fns. omitted.)

As reflected by the law review article noted, membership in an association is usually mandatory. Such is true here. And the powers of such associations are extensive. “By his acceptance, the purchaser automatically becomes a member of the association created by the declaration and submits to the authority of the association and to the restrictions upon the use and enjoyment of the property contained in the declaration. Because each owner automatically becomes a member of the association upon taking title and because the association is empowered to levy and to collect assessments, to make and to enforce rules, and to permit or to deny certain uses of the property, the association has the power, and in many cases the obligation, to exert tremendous influence on the bundle of rights normally enjoyed as a concomitant part of fee simple ownership of property.” (Id., at p. 917.)

With power, of course, comes the potential for abuse. Therefore, the Association must be held to a high standard of responsibility: “The business and governmental aspects of the association and the association’s relationship to its members clearly give rise to a special sense of responsibility upon the officers and directors…. This special responsibility is manifested in the requirements of fiduciary duties and the requirements of due process, equal protection, and fair dealing.” (Id., at p. 921.) (See Raven’s Cove Townhomes, Inc. v. Knuppe Development Co., supra, 114 Cal. App.3d 783, 792-799.)

[652] The Kite Hill Community Association’s approval of a fence not in conformity with the Declaration is analogous to the administrative award of a zoning variance. In the zoning context as well as here, a departure from the master plan in the Declaration stands to affect most adversely those who hold rights in neighboring property. Hence, what the California Supreme Court has stated with regard to judicial review of grants of variances applies equally well to the Association’s actions herein: “[C]ourts must meaningfully review grants of variances in order to protect the interests of those who hold rights in property nearby the parcel for which a variance is sought. A zoning scheme, after all, is similar in some respects to a contract; each party foregoes rights to use its land as it wishes in return for the assurance that the use of neighboring property will be similarly restricted, the rationale being that such mutual restriction can enhance total community welfare. [Citations.] If the interest of these parties in preventing unjustified variance awards for neighboring land is not sufficiently protected, the consequence will be subversion of the critical reciprocity upon which zoning regulation rests.” (Topanga Assn. for a Scenic Community v. County of Los Angeles(1974) 11 Cal.3d 506, 517-518 [113 Cal. Rptr. 836, 522 P.2d 12].) For nearly identical reasons, we conclude that the courts must be available to protect neighboring property interests from arbitrary actions by homeowner associations.

(3) Thus, it follows that the trial court must review the Association’s decision approving the Ehles’ fence to insure that it was neither arbitrary nor in violation of the restrictions contained in the Declaration. (See cases cited in Annot., 40 A.L.R.3d 864.) Moreover, where the matter is up for review on appeal from a judgment of dismissal upon the sustaining of a demurrer, the standard of review is the same, i.e., to test as a matter of law whether the action of the Association could have been arbitrary. In our view, the complaint has succeeded in pleading this possibility, and a trial is necessary to determine if the Association action was in fact arbitrary.

(4) Turning to the next point, there is no merit in the Association’s argument that its duty of good faith extended only to its members as a group and not to its members individually. The Declaration expressly provides that the Committee’s approval of improvements “shall be based, among other things, on … [the] effect of location and use of improvements and landscaping on neighboring property, improvements, landscaping, operations and uses; …” (Italics added.)

The Association advanced the proposition (during oral argument) that the Committee’s approval of improvement plans could be “arbitrary” as to an individual homeowner, yet reasonable in light of the overriding interests of the community. Nonsense. Like any community, Kite Hill consists of individual members who form in the aggregate an organic whole. Thus, like any government, [653] the Association must balance individual interests against the general welfare. No decision of the Committee could possibly be deemed “arbitrary” as to an individual homeowner if it were based upon a superseding duty to the community at large. The Association’s duty of good faith subsumes an obligation to reconcile in a fair and equitable way the interests of the community with the interests of the individuals residing therein.

(5) Nor is there merit in the argument that a homeowner aggrieved by a decision of the Association with regard to a neighbor’s improvement should be limited to suit against that neighbor. As earlier noted, the covenants and restrictions create an affirmative duty on the part of the Association to protect individual homeowners affected by the improvement. More importantly, the Declaration clothes the Association with full authority to undertake all necessary legal actions to fulfill its protective duties.

Furthermore, it is apparent that but for the allegedly arbitrary approval by the Committee of the codefendant’s fence, plaintiffs might never have been forced to pursue a legal remedy in the first place.

Moreover, in any action by plaintiffs against their neighbors, the sole question for determination will be whether the actions of the architectural committee have been arbitrary. In an action to determine whether the Committee’s ruling was arbitrary or sound, the Association would obviously be a proper, if not an indispensable, party.

A nearly identical situation confronted the court in Norris v. Phillips, supra, 626 P.2d 717. Plaintiffs owned property adjacent to defendants’ in a residential community. Despite plaintiffs’ objections the architectural control committee approved defendants’ plan to construct a barn on their property. Plaintiffs filed suit against their neighbors as well as against the committee seeking to enjoin construction, but the committee was dismissed from the suit and the dismissal was not appealed. Plaintiffs prevailed at trial. The Court of Appeal reversed, holding that the trial court had failed to apply the correct standard in measuring the committee’s actions. “[T]he trial court’s determination of a breach of covenant, without a determination that the Architectural Control Committee acted unreasonably or in bad faith, was in error.” (Id., at p. 719.) Rather than remand for a determination using the proper standard of review, however, the Norris court reversed. They did so because the committee had earlier been dismissed. “In such a challenge, the Architectural Control Committee is an indispensable party. In that the architectural control committee was dismissed out of this suit and that dismissal has not been appealed, a remand for a determination that the committee acted unreasonably or in bad faith is not possible.” (Id., at p. 719, fn. 1.)

[654] Similarly, plaintiffs’ suit here turns on the good faith and lack of arbitrariness of the Committee’s approval, assessed in the light of all of the provisions of the Declaration. It appears from the record that the fence in question was not in conformity with the provisions of the Declaration, particularly the provisions contained in exhibit C, inasmuch as the codefendants placed a solid stone fence on a sideyard with a view, whereas exhibit C clearly requires a wrought iron open fence. Although the Declaration vests “sole discretion” in the Committee and allows for reasonable variances, their decisions must be “in keeping with the general plan for the improvement and development of the Project,” and of course, must be made in good faith and not be arbitrary. These are clearly questions of fact for a jury. Accordingly, the Association was a proper defendant in the action below, and dismissing it from the action was error.

B. The Effect of the Exculpatory Clauses

(6a) Notwithstanding the Association’s clear affirmative duty to act in good faith and to avoid arbitrary decisions in applying the covenants and restrictions, the question remains whether the exculpatory clauses effectively cancelled out that duty and thereby immunized the Association from suit. We conclude that they do not.

The law has traditionally viewed with disfavor attempts to secure insulation from one’s own negligence or wilful misconduct, and such provisions are strictly construed against the person relying on them, particularly where such person is their author. (Viotti v.Giomi (1964) 230 Cal. App.2d 730, 739 [41 Cal. Rptr. 345]; Sproul v. Cuddy (1955) 131 Cal. App.2d 85, 94-95 [280 P.2d 158]; Basin Oil Co. v. Baash-Ross Tool Co.(1954) 125 Cal. App.2d 578, 594-597 [271 P.2d 122].) Here, the Association is the creation and successor of the author, S & S Construction Company, and therefore subject to this rule of strict construction.

Furthermore, it is the express statutory policy of this state that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from the responsibility for his own fraud or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” (Civ. Code, § 1668.)

This public policy applies with added force when the exculpatory provision purports to immunize persons charged with a fiduciary duty from the consequences of betraying their trusts. (See Mitchell v. Dilbeck (1937) 10 Cal.2d 341 [74 P.2d 233]; Forbes v.McDonald (1879) 54 Cal. 98.)

(7) Moreover, the California Supreme Court has evinced a clear policy of enforcing only those exculpatory provisions which do not affect “the public interest.” [655] (Tunkl v.Regents of the University of California (1963) 60 Cal.2d 92, 96 [32 Cal. Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693].) Factors to be considered in determining whether a business or transaction affects a public interest include: (a) whether the matter is suitable for public regulation; (b) whether the party provides a service of importance to the public; (c) whether the party invoking it possesses a bargaining advantage against any member of the public who seeks such service; (d) and whether one party is particularly subject to the other’s control and the risk of his or her carelessness. (Id., at pp. 98-101.)

Applying one or more of these criteria, the courts have invalidated exculpatory clauses invoked by banks (Hiroshima v. Bank of Italy (1926) 78 Cal. App. 362 [248 P. 947];Vilner v. Crocker National Bank (1979) 89 Cal. App.3d 732 [152 Cal. Rptr. 850]), hospitals (Tunkl v. Regents of the University of California, supra, 60 Cal.2d 92;Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal. Rptr. 90, 551 P.2d 410]), and apartment complexes (Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512 [143 Cal. Rptr. 247, 573 P.2d 465]).

(6b) For the reasons earlier stated, we view the Association of homeowners as occupying a particularly elevated position of trust because of the many interests it monitors and services it performs. Therefore, we hold that the exculpatory provisions contained in the Declaration constitute no bar to suit against the Association.

The arguments set forth by the Association merit little consideration. It argued most strenuously that the Declaration does not create an easement or equitable servitude giving plaintiffs the right to an unobstructed “view.” That is plainly not the issue here. The central question is whether the Association, under the Declaration, has a duty to act in good faith and avoid arbitrary decisions in approving the plans for construction of a fence on codefendants’ property.

(8) Nor are plaintiffs barred from filing suit because they are members of the Association, a nonprofit corporation. It is well settled that members may sue such entities for personal injuries. (9) Nor, finally, is the injunctive relief requested by plaintiffs inappropriate or impractical. It is well within the trial court’s power, if it determines that the architectural committee breached its duty, to order the Association to exercise its authority under the Declaration to compel compliance with the architectural standards set forth therein.

(6c) In sum, we hold that the Association in reviewing the codefendant’s improvement plan owed a fiduciary duty to plaintiffs to act in good faith and to avoid arbitrary action, and that there is an issue of fact raised by the pleadings [656] as to whether the Association did so. As a consequence, the demurrer was improperly sustained.

DISPOSITION

The judgment is reversed.

Morris, P.J., and Kaufman, J., concurred.

[FN. 1] On appeal, we deem the Association’s demurrer to have admitted all well-pleaded material facts. (Thompson v.County of Alameda (1980) 27 Cal.3d 741, 746 [167 Cal. Rptr. 70, 614 P.2d 728, 12 A.L.R. 4th 701].)

[FN. 2] Plaintiffs also named as defendants their other neighbors, the Lees, for construction of certain improvements without the approval of the Committee, as well as S & S Construction Company.

[FN. 3] Plaintiffs amended their complaint several times. The trial court sustained the Association’s demurrer to their fourth amended complaint.

Dolan-King v. Rancho Sante Fe Association

(2000) 81 Cal.App.4th 965

[Architectural Control; Judicial Deference] An association may grant discretionary authority to an Architectural Committee to apply subjective, aesthetic criteria for approving member applications for proposed architectural improvements.

COUNSEL

Horvitz & Levy, Barry R. Levy, Daniel J. Gonzalez; Musick, Peeler & Garrett and Gary L. Wollberg for Defendants and Appellants. David A. Niddrie; Garrison & McInnis, Donald E. McInnis and Robert R. Massey for Plaintiff and Respondent.

OPINION

[969] O’ROURKE, J.

After the Board of Directors (the Board) of the Rancho Santa Fe Association (the Association), on the advice of a five-person “Art Jury,” rejected Patricia Dolan-King’s proposed plans for home additions and [970] a perimeter fence on her property, Dolan-King sued the Association seeking a declaration that its actions were invalid. Following a bench trial, the court declared the Association’s rejection of the plans arbitrary and an “abuse of power” and entered judgment in Dolan-King’s favor. The Association appeals, claiming the court misinterpreted the protective covenant governing land use and aesthetic standards for Dolan-King’s property, improperly substituted its own judgment for that of the Association and Art Jury and failed to exercise the proper judicial deference for the Association’s aesthetic decisions.

We conclude the relevant provisions of the protective covenant are enforceable equitable servitudes, and, with regard to Dolan-King’s improvement applications, Dolan-King failed to meet her burden to show the Board’s decisions were unreasonable and arbitrary under the circumstances. Accordingly, we reverse the judgment and order and direct the court to enter judgment for the Association.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Dolan-King purchased a home on an approximately three-acre lot in the residential community of Rancho Santa Fe. Development in Rancho Santa Fe is subject to the Rancho Santa Fe Protective Covenant (Covenant), which was adopted and recorded in 1928 and amended at various times over the years. Declaring that “Rancho Santa Fe is unusually attractive and valuable as a high class place of residence because of the rare quality of its landscape, trees and shrubs and the fine architecture and other improvements established by its property owners,” the Covenant recognizes the Rancho Santa Fe property owners’ desire of “preserving, continuing and maintaining the character of community and rare landscape features and of upholding the quality of all future architecture and improvements, and of restricting the use, height and bulk of buildings . . .” To that end, the Covenant not only contains express restrictions on such things as height requirements and building setbacks, but it also requires that property improvements and structures be approved by the Association with the written advice of the Rancho Santa Fe Art Jury (the Art Jury) “so as to insure a uniform and reasonably high standard of artistic result and attractiveness in exterior and physical appearance of said property and improvements.”[1] The Covenant charges the Association and the Art Jury with power to interpret and enforce its provisions.

[971] Article IV of the Covenant establishes three “Architecture Districts” within Rancho Santa Fe, and sets forth general requirements to which buildings or structures “shall” conform, “subject to the discretion of the Art Jury.” Article IV, section 28, entitled “General Requirements as to Architecture,” PROVIDES: “To preserve the attractiveness of the said property and to prevent the erection, alteration or maintenance of buildings of undesirable and inharmonious design that would depreciate neighboring property, there are hereby established and defined for said property certain districts combining the usual architectural forms as follows: [P] Type I–Architecture Districts. [P] Type II–Architecture Districts. [P] Type III–Architecture Districts. . . . No building or structure shall be erected, constructed altered or maintained on said property or any part thereof, except in conformity with the regulations herein provided for the Type of Architecture District in which said building or structure is located. . . . [P] (c) Materials, color and forms must be used honestly, actually expressing what they are, and not imitating other materials (such as tin, tile, wood and sheet metal, shamming stone, etc.) . . . In this hilly country, roofs will be much seen from above, and their form and color are important to the success and attractiveness of the property. The design of the building must be such as will, in the opinion of the Art Jury, be reasonably appropriate to its site and harmonize with its surroundings. The word “type” is used rather than “style” because attempts to reproduce “archaeological” or “period” styles shall be discouraged.

Dolan-King’s home was within the Type I Architecture District, described in the Covenant as “that distinctive type of architecture which for several decades has been successfully developing in California, deriving its chief inspiration directly or indirectly from Latin types, which developed under similar climatic conditions along the Mediterranean or at points in California, such as Monterey.”

Dolan-King was drawn to Rancho Santa Fe because she “wanted to live in the Covenant.” She was aware of the Covenant’s existence and had “read over it” before she agreed to purchase the house. Dolan-King testified she liked the house and was “really excited” by the fact it was in the Covenant. However, she desired to make some changes, and through architects Dolan-King submitted to the Art Jury plans for a new perimeter fence as well as “turret-style” additions to her living and family rooms. In place of the original three-rail corral-type fence on her property when she purchased it, [972] she proposed a fence composed of stucco columns (pilasters) joined by horizontal wood beams. The proposed room addition structures were designed with large windows and French doors wrapped around their upper and lower levels to provide increased natural lighting as well as views north and east of her house.

The Art Jury denied Dolan-King’s applications. It found her proposed fence designs inconsistent with the Rancho Santa Fe Residential Design Guidelines (Guidelines),[2] the desired rural community character and the existing neighborhood character. It suggested, as an “aesthetic alternative” in response to Dolan-King’s concern about containing her pets, placing wire mesh on the inside face of the corral fence. As for Dolan-King’s proposed room additions, the Art Jury found the designs “not in keeping with Paragraph 46” of the Covenant. The Art Jury stated the turret-style additions would be acceptable if Dolan-King decreased the proportion of window to stucco mass[3] in a manner similar to examples presented to them by her architect, and suggested she reevaluate that as well as the thickness of the walls and size and quantity of the windows.

Following unsuccessful mediations attended by Dolan-King’s attorney and architect,[4] Dolan-King appealed the Art Jury’s decisions to the Board. The Covenant vests the Board with authority to modify the Art Jury’s decisions in cases where four-fifths of the Board finds the Art Jury’s decision “works an undue hardship” on the petitioner; modification of the Art Jury’s decision “will not tend unduly to lower the standards of attractiveness of the surrounding property or depreciate the neighborhood”; or there was “bias or prejudice on the part of one or more members of the Art Jury as to said decision or ruling.” The Board unanimously upheld the Art Jury’s decisions.

[973] Dolan-King filed suit against the Association, its board of directors and the Art Jury seeking a judicial determination of the validity and enforceability of the Guidelines and the criteria and restrictions used by the Art Jury to reject her applications. She asked the court to resolve whether the Guidelines and various provisions of the Covenant were applied arbitrarily and unreasonably; whether the defendants’ land use planning was arbitrary, capricious and unreasonable; and whether the defendants exceeded their authority under the Covenant and breached their contractual and fiduciary duties to the Association’s members.

Following the presentation of evidence and written arguments, the court rendered its intended statement of decision in Dolan-King’s favor. It found the Association and Art Jury’s decisions rejecting her applications “failed the rational relationship test and constituted an abuse of power.” SPECIFICALLY, IT CONCLUDED: (1) Board approval of Dolan-King’s applications would not violate paragraph 46 of the Covenant, requiring that the Art Jury ensure “a uniform and reasonably high standard of artistic result and attractiveness, in exterior and physical appearances” of the property and improvements; (2) Dolan-King’s fence plans should have been approved by the Art Jury and Board because (a) the proposed fence type was “consistent with the type of architecture required by the Covenant,” (b) the Board and Art Jury’s decisions were improperly based on Guidelines that were without “controlling effect,” and (c) the fence could be masked by appropriate landscaping; and (3) The Covenant required the Art Jury and Board to approve any fenestration plan “consistent with the required style of architecture that was not aesthetically displeasing,” and the turrets were not at all or barely visible from the street. After the Association unsuccessfully objected to the court’s intended statement of decision, the court deemed the intended statement of decision final and entered judgment for Dolan-King. It awarded Dolan-King attorney fees in the amount of $187,677.

DISCUSSION

I. Standard of Review

We first address the proper standard for our review of the court’s judgment. The Association contends we must act “independently of the trial court” and review the Board and Art Jury’s decisions “in the light most favorable to the decision to deny approval,” giving deference to the Board’s decision analogous to review of decisions of governmental agencies on petition for writ of mandate. It urges we follow the “rule of judicial deference” to community association board decisionmaking set out by the California Supreme Court in Nahrstedt v. Lakeside Village Condominium [974] Assn. (1994) 8 Cal. 4th 361, 374 (Nahrstedt) and more recently in Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal. 4th 249, 253 (Lamden). Dolan-King relies upon Clark v. Rancho Santa Fe Assn. (1989) 216 Cal. App. 3d 606, 619 (Clark) to argue we must presume the court’s judgment to be correct, view the evidence in the light most favorable to the judgment and simply determine whether substantial evidence supports the trial court’s conclusions. However, as Dolan-King acknowledges, Clark differs from this case in that it involved a referee’s review of the Association’s denial of a subdivision proposal under a petition for writ of mandamus. (Id. at p. 613.) The sole issue before the referee in Clark was whether substantial evidence supported the Association and Art Jury’s subjective conclusions about the adequacy of the proposal, not, as here, whether the Association acted under enforceable restrictions, beyond its authority or in a discriminatory manner. (Id. at p. 615.) It is settled that in reviewing a trial court’s ruling on a writ of mandate (Code Civ. Proc., § 1085), the appellate court is “ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.]” (Saathoff v. City of San Diego (1995) 35 Cal. App. 4th 697, 700.)

The standard does not apply where the facts below are undisputed. (Ibid.)

Dolan-King’s complaint was for declaratory relief. Whether a determination is proper in an action for declaratory relief is a matter within the trial court’s discretion and the court’s decision to grant or deny relief will not be disturbed on appeal unless it is clearly shown its discretion was abused. (Hannula v. Hacienda Homes (1949) 34 Cal. 2d 442, 448.) Here, however, the decisive underlying facts, primarily Dolan-King’s proposed designs and the Art Jury and Board’s actions, are undisputed. In such a case, in reviewing the propriety of the trial court’s decision, we are confronted with questions of law. (Ghirardo v. Antonioli (1994) 8 Cal. 4th 791, 799; Caloca v. County of San Diego (1999) 72 Cal. App. 4th 1209, 1217.) Moreover, to the extent our review of the court’s declaratory judgment involves an interpretation of the Covenant’s provisions, that too is a question of law we address de novo. (City of El Cajon v. El Cajon Police Officers’ Assn. (1996) 49 Cal. App. 4th 64, 71; Clark, supra, 216 Cal. App. 3d at pp. 618-619 [resolving as a matter of law whether the language of the Covenant permits the Association and Art Jury to use subjective criteria in judging property owners’ applications to improve their property].)

[975]

II. Enforceability of the Provisions of the Covenant and Residential Design Guidelines

A. The Covenant’s Provisions

The court framed the issues at trial as follows: “1.What type of perimeter fence can be legally required to be in compliance with the requirements of the [Covenant] and 2. What type of fenestration . . . on the two proposed turret additions can be legally required to be in compliance with the requirements of the Covenant?” Although it acknowledged Dolan-King sought a declaration of the validity of the criteria and Guidelines applied by the Art Jury and Board, the court did not directly address the enforceability of the Covenant’s provisions or the Guidelines relied upon by those entities in denying her applications. The determination was a necessary prerequisite to decide whether the Board exceeded its authority and acted reasonably, and the court erred by ignoring the issue. However, on this record, we may address the reasonableness of the relevant provisions as a matter of law. (See, e.g., Liebler v. Point Loma Tennis Club (1995) 40 Cal. App. 4th 1600.)

Interpreting and applying the language of Civil Code section 1354 [(now Civil Code section 5975)],[5] the California Supreme Court has made it clear that restrictions on the use of property contained in covenants recorded with the county recorder are “presumed to be reasonable and will be enforced uniformly against all residents of the common interest development unless the restriction is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction’s benefits to the development’s residents, or violates a fundamental public policy.” (Nahrstedt, supra, 8 Cal. 4th at p. 386; Lamden, supra., 21 Cal. 4th at p. 263.) Such deference to the originating covenants, conditions and restrictions “‘protects the general expectations of condominium owners “that restrictions in place at the time they purchase their units will be enforceable.”’” (Lamden, supra, 21 Cal. 4th at p. 264.) Restrictions are evaluated for reasonableness in light of “the restriction’s effect on the project as a whole,” not from the perspective of the individual homeowner. (Nahrstedt, supra, 8 Cal. 4th 361, 386; Liebler v. Point Loma Tennis Club, supra 40 Cal. App. 4th at pp. 1606, 1611.) Accordingly, courts do not conduct a case-by-case analysis of the restrictions to determine the effect on an individual homeowner; we must consider the reasonableness of the restrictions by looking at the goals and concerns of the entire development.

[976] In her briefs before the trial court, Dolan-King did not challenge the Covenant’s broad governing provisions expressing an intent to preserve the value and attractiveness of Rancho Santa Fe, and giving the Art Jury and Association authority and duty to enforce and interpret the Covenant’s provisions. Rather, she contended the Guidelines followed by the Art Jury were not contained in the Covenant, and that paragraphs 46 and 47 of the Covenant did not empower the Art Jury to deny her applications, but only enabled it to exercise discretion in approving “color,” “texture and finish of plaster or exterior” and “roofing materials” under other provisions of the Covenant.

We reject Dolan-King’s narrow interpretation of the Covenant. This court held in Clark, supra, 216 Cal.App.3d 606, that reading the Covenant as a whole, the Art Jury and Board are empowered to render judgments on property improvement applications based upon subjective as well as objective criteria. (Id. at pp. 618-619.) We noted the Covenant’s stated goal of a “‘uniform and reasonably high standard of artistic result and attractiveness, in exterior and physical appearance of said property and improvement’” and its “purpose . . . as protecting the attractiveness and value of the area as ‘a high class place of residence.’” (Id. at p. 618.) Our decision in Clark recognized that the Covenant expressly grants the Association and Art Jury broad authority to apply standards that are inherently subjective and by their nature cannot be measured or quantified: “Necessarily, any such evaluations of a property owner’s proposal for compatibility with these desired environmental qualities must be done on a subjective basis, as ‘attractiveness’ and ‘artistry’ are, like beauty, well within the eye of the beholder. Such qualities have never been measurable or quantifiable.” (Id. at p. 619, fn. omitted.)

Implicit in our holding in Clark is that the Covenant’s grant of authority to the Art Jury to make subjective aesthetic judgments is not wholly arbitrary. A restriction is arbitrary when it bears “no rational relationship to the protection, preservation, operation or purpose of the affected land.” (Nahrstedt, supra, 8 Cal. 4th at p. 381.) It is clear even from Dolan-King’s own briefs and testimony that one of the desirable aspects of living “in the Covenant” is the concern and control exercised by the Association over style and presentation of the homes as well as the surrounding properties. Maintaining a consistent and harmonious neighborhood character, one that is architecturally and artistically pleasing, confers a benefit on the homeowners by maintaining the value of their properties. Given the Covenant’s unambiguous intent to ensure relatively consistent architectural styles and a valuable, aesthetically appealing, high quality neighborhood for the collective benefit of the Rancho Santa Fe homeowners, we conclude the Covenant’s grant of broad authority and discretion in the Art Jury to apply [977] subjective aesthetic criteria is reasonable. Nor do we find the Covenant’s provisions violative of fundamental public policy or disproportionately burdensome. (Id. at p. 382.) Thus, its general restrictive provisions, reviewed and agreed to by Dolan-King before she purchased her property, are enforceable equitable servitudes. California and many other jurisdictions have long upheld such general covenants vesting broad discretion in homeowners associations or boards to grant or withhold consent to construction. (Palos Verdes Homes Assn. v. Rodman (1986) 182 Cal. App. 3d 324, 328, citing Hannula v. Hacienda Homes, Inc., supra, 34 Cal. 2d 442; Riss v. Angel (1997) 131 Wn.2d 612 [citing numerous cases].) This is so even when the covenants contain such broad, general approval standards as “‘“conformity and harmony of external design and general quality with the existing standards of the neighborhood”’” and “‘“location of the building with respect to topography and finished ground elevations”’” as long as the covenants clearly granted such discretion. (Riss v. Angel, supra, 934 P.2d at p. 677, citing Winslette v. Keeler (1964) 220 Ga. 100 [the only limitation on a grantor’s right to reject plans under such standards is that the right must be exercised reasonably and in good faith].)

B. The Guidelines

We view the Guidelines differently. There is no evidence Dolan-King had notice of the unrecorded Guidelines at the time she purchased her property.[6] Thus, we do not, nor does the Association ask us to, treat them as equitable servitudes. (Nahrstedt, supra, 8 Cal.4th at p. 375 [“Restrictions that do not meet the requirements of covenants running with the land may be enforceable as equitable servitudes provided the person bound by the restrictions had notice of their existence.”].) In Lamden, the court noted a distinction between originating covenants and “subsequently promulgated” unrecorded use restrictions, stating the factors justifying deference to founding covenants are not necessarily present when a court considers subsequent unrecorded community association board decisions. (Lamden, supra, 21 Cal.4th at p. 264.) In Nahrstedt, the court suggested that such unrecorded restrictions are not accorded a presumption of reasonableness, but are viewed under a straight reasonableness test “so as to ‘somewhat fetter the discretion of the board of directors.’” (Nahrstedt, supra, 8 Cal. 4th at p. 376, quoting Hidden Harbour Estates v. Basso (Fla.Dist.Ct.App. 1981) 393 So.2d 637, 640.) We understand this distinction to primarily impact the respective burdens of proof at trial.

[978] The Guidelines themselves do not purport to be strict restrictions on improvements or land use. They are intended to “disseminate[] the site and design standards which the community holds as necessary to preserve community character; articulate[] the policies and goals by which the Association judges and regulates land use; and give[] a clear indication of those site and design principles which increase the probability of the issuance of Association permits.” THEY STATE: “These are general guidelines, and the Art Jury and Association Board may exercise the full breadth of their discretion in considering any land use proposal. The Association has the express right under the Protective Covenant to evaluate land use and building applications by standards other than those contained herein.” As a further indication that the Guidelines themselves are not intended as regulations, the Guidelines separately list in an appendix the “regulations on building and land improvement” adopted by the Association.

While we recognize that the Guidelines are not equitable servitudes, we find nothing inherently unreasonable about the Guidelines in and of themselves. They are the Association’s attempt to give property owners guidance, by way of detailed examples and explanation, on the criteria used by the Art Jury and Board in reviewing proposed improvements and exercising their broad discretion under the Covenant. The Board’s desire to give property owners more concrete examples of how the Art Jury is likely to exercise its broad discretion is entirely legitimate and fair, even though the Guidelines are not binding restrictions. That Dolan-King lacked notice of the Guidelines does not affect their reasonableness, but may influence our determination of whether the Board fairly and reasonably relied upon them to deny Dolan-King’s fence application, which we address below.

III. Validity of the Art Jury and Board’s Exercise of Discretion in Denying Dolan-King’s Applications

The Association contends the court erred by failing to exercise deference to the Board’s decisionmaking authority under Lamden, supra, 21 Cal. 4th at page 265 and in substituting its own judgment based upon its own evaluation of Dolan-King’s applications, including its conclusion Dolan-King’s room additions should have been approved because they were not “aesthetically displeasing.” According to the Association, as long as the record demonstrates a good faith and rational effort by the Board to further the purpose of the development, the court must uphold its decision. Dolan-King, on the other hand, argues the Board’s decisions are not entitled to deference under Lamden because the record shows they were made without reasonable investigation, in bad faith, and in disregard of the best interests of the community association and its members. [979]

We agree the court failed to apply the proper deferential standard to test the Board’s exercise of discretion. In Lamden, the California Supreme Court held that courts should defer to the discretionary decisions of duly constituted community associations in exercising their obligations to maintain and repair common areas, where those decisions are made within the scope of their authority under relevant statutes, covenants, and restrictions, upon reasonable investigation, in good faith, and in a manner in the best interests of the Association and its members. (Lamden, supra, 21 Cal. 4th at p. 265.) The court in Lamden relied heavily upon its prior decision in Nahrstedt, which addressed the standards to be applied in enforcing recorded use restrictions that satisfy the requirements of equitable servitudes. In Nahrstedt, the court declared that an association must make findings of use restriction violations in “good faith, not in an arbitrary or capricious manner.” (Nahrstedt, supra, 8 Cal. 4th at p. 383.) It held: “Generally, courts will uphold decisions made by the governing board of an owner’s association so long as they represent good faith efforts to further the purposes of the common interest development, are consistent with the development’s governing documents, and comply with public policy.” (Id. at p. 374; see also Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 650 [“It is a settled rule of law that homeowners’ associations must exercise their authority to approve or disapprove an individual homeowner’s construction or improvement plans in conformity with the declaration of covenants and restrictions, and in good faith.”].)

Applying those standards here, it is clear that while the Covenant’s grant of discretionary decisionmaking authority to the Board and Art Jury is broad, it is not unbridled. Lamden’s rule of conditional judicial deference places limits upon how the Art Jury and Board may exercise their discretion in approving or rejecting improvement plans based on their subjective aesthetic judgment. Under those standards, where the record indicates the Art Jury and Board acted within the authority granted to it by the Covenant, pursuant to a reasonable investigation, in the best interests of the community and not in an arbitrary manner, we will respect and uphold their decisions. Having sought a declaration that the Art Jury and Board imposed restrictions unreasonably and arbitrarily, it was Dolan-King’s burden at trial to make that showing before the trial court. (Merkley v. Merkley (1939) 12 Cal. 2d 543, 547 [the plaintiff in a declaratory relief action has the burden to show the conditions exist that will justify the court in exercising its discretion to grant the relief sought].)

A. The Room Addition Proposal

Exercising its right to ensure a “uniform and reasonably high standard of artistic result and attractiveness” under paragraph 46 of the Covenant, the [980] Art Jury denied Dolan-King’s turret-style room addition proposals on the ground they were designed with an overabundance of glass (door and window). At trial, an Art Jury member testified the Art Jury had visited Dolan-King’s property, viewed the rear of her house, and compared the glass-to-stucco ratio of the rest of the house with that of the proposed additions. Initially, the Art Jury expressed dislike for the form (the turret shape) of the additions in relation to the rest of the house, but after considering Dolan-King’s architect’s presentation of Spanish Colonial Revival period architecture it eventually conceded the round turrets would be acceptable if the window-to-stucco mass were changed. The Art Jury’s ultimate decision was made after it reviewed her architect’s exhibits, discussed the proportion of stucco to window, the general architectural styles and compared the general Santa Barbara architectural style to Dolan-King’s plans. It is clear that in the Art Jury’s opinion, the proposed addition designs did not meet its aesthetic standards because the fenestration did not “harmonize” with the remainder of the residence, nor was it consistent with the style of architecture promoted by Dolan-King’s architect. The Art Jury communicated to Dolan-King their view that her additions would be acceptable if the designs were altered to decrease the window and door mass.

The Art Jury’s decision to reject Dolan-King’s room addition proposal was well within the scope of its authority under the Covenant, and, based upon its investigation and stated reasoning, was a reasonable and good faith effort to maintain architectural consistency with the remainder of her home as well as the neighborhood. Dolan-King did not meet her burden to show otherwise. While Dolan-King pointed out several commercial buildings and homes with turret-shaped rooms in Rancho Santa Fe,[7] in our view they do not reflect the kind of inconsistency between the addition and the original structure as the Art Jury noted with regard to Dolan-King’s proposals.

The Board’s action upholding the Art Jury’s decision was also well within its discretion and authority. The Board is empowered to rely upon the Art Jury’s recommendation, which was based upon the Art Jury’s visits to the Dolan-King residence and discussions with her architect. Although Dolan-King faults the Board for failing to view her residence or otherwise “investigate” the matter, nothing in the Covenant requires the Board to conduct its own independent investigation.[8] We conclude the Board’s decision rejecting Dolan-King’s proposed additions was entitled to deference and the court, [981] relying upon an overly restrictive interpretation of the Covenant, abused its discretion in declaring it in excess of the Board’s authority and not rationally related to the Association’s purposes.

B. The Fence Proposal

The court reached the following conclusions regarding Dolan-King’s fence application: It found the parties did not dispute Dolan-King’s home was of “Spanish Colonial Revival,” which was an acceptable type of type I architecture under the Covenant. It noted the Covenant was silent on the type of perimeter fence appropriate for the type I architectural district, but drew an inference that the Covenant required such a fence be consistent with the Santa Barbara/Monterey/Spanish Colonial Revival type of architecture. The court ruled that, from an aesthetic standpoint, the fence should be compatible with the architectural style of Dolan-King’s home and other existing fences. Moreover, the court ruled there were inconsistencies between the Covenant’s requirements and the Guidelines, but noted the parties agreed the Guidelines were not restrictive covenants and concluded the Covenant’s provisions controlled. It acknowledged Dolan-King’s architect’s testimony that her proposed fence design was beautiful from an artistic standpoint, and “consistent with the Spanish Colonial Revival type architecture required” by the Covenant. The architect testified the pasture-rail type fence, on the other hand, was inconsistent with the Covenant. Based upon these findings and conclusions, the court declared Dolan-King’s fence application should have been approved.

The court’s ruling was based upon an overly narrow interpretation of both the Covenant’s grant of authority to the Art Jury and Board and its scope of permissible architectural types for improvements in Rancho Santa Fe. As we have explained, the Art Jury and Board acted well within their power to render subjective, aesthetic judgments about Dolan-King’s fence design. The Art Jury had the discretion to base its decision on a finding that a particular improvement lacked “harmony” with the subject property and its surrounding neighborhood. The court found the Guidelines inconsistent with the Covenant’s provisions relating to architectural type, specifically, the court [982] decided the Guidelines’ stated preference for corral- or pasture-rail-type fences was contrary to the Spanish Colonial Revival type of architecture mentioned in the Covenant. We do not interpret the Covenant or the Guidelines so literally or restrictively. The Covenant does not mandate the use of structures falling within that particular style of architecture, nor does it purport to define or limit the design of perimeter walls or fences. Indeed, as the Association points out, the Covenant is not at all precise in its description of permissible architectural types. It refers to a distinctive type of architecture that derives its “chief inspiration” “directly or indirectly” from Spanish types found “along the Mediterranean or at points in California, such as Monterey.” The Covenant plainly rejects strict adherence to architectural styles. It provides: “The word ‘type’ is used rather than ‘style’ because attempts to reproduce ‘archeological’ or ‘period’ styles shall be discouraged.” The Covenant’s designation of architectural types is not only imprecise, but application of the architectural restriction is further “subject to the discretion of the Art Jury.”

The relevant inquiry, whether the Art Jury and Board properly exercised their broad discretion, was not directly addressed by the court. The court’s findings and conclusions did not establish that either the Art Jury or Board acted arbitrarily, without reasonable investigation or in bad faith in denying Dolan-King’s fence application. For example, the court made no finding as to the “rural character” or predominance of fence type within Dolan-King’s immediate neighborhood. It did not determine whether other similarly designed homes had pasture-rail fences, or fences with design aspects similar to those proposed by Dolan-King. It did not find that other homes having wrought iron or stucco fences were in neighborhoods with predominantly pasture-rail type fences.

Nor could the court have made these findings on the record before it. At trial, the president of the Board testified that nearly all of the fencing in Dolan-King’s neighborhood was pasture-rail-type fencing. A member of the Art Jury explained that one of the bases for the Art Jury’s denial of her fence was that its composition, namely the combination of wrought iron and pilasters, was “too urban” and too formal in relation to the character of the neighborhood. She recalled the type of fences in Dolan-King’s neighborhood was white pasture-rail, and there were no other fences with pilasters and wrought iron in the neighborhood. Dolan-King’s architect conceded there was “quite a bit” of pasture-rail fencing in Rancho Santa Fe, and that style of fencing was consistent with the California ranch style of architecture as well as the Rancho Santa Fe community. While Dolan-King demonstrated homes in Rancho Santa Fe having a mix of fences and walls ranging from solid stucco, wrought iron rail, combined brick and wrought iron, and layered [983] stone, the mere existence of varying fence styles within Rancho Santa Fe does not establish arbitrary action under the Covenant, which contains no specific design criteria or limitations for perimeter walls and fences. Dolan-King did not demonstrate that those homes with more formal fence styles were surrounded by others having pasture-rail fences or no fences at all.[9] When confronted with videotape of these differing walls, Dolan-King’s architect was unable to state where they were located in the community or describe the nature of the property they were located upon. In fact, he pointed out his opinions about the various fences were not given with a view towards the Rancho Santa Fe community as a whole.

We recognize the law requiring evenhanded application of use restrictions creates some tension with the discretionary authority granted to the Art Jury and Board. While aesthetic considerations have their place in the Covenant and there are no absolute standards to guide the Art Jury’s judgment and taste, we must point out if the evidence had showed the perimeter fences and walls within Dolan-King’s immediate neighborhood (in the Covenant’s jurisdiction) lacked consistency, Dolan-King’s proposed fence design would not be inappropriate because it would not be out of harmony with them. (See, e.g., Town & Country Estates Ass’n v. Slater (1987) 227 Mont. 489 [design review committee was vested with authority to reject house plans based upon standards of “harmony of external design, location and relation to surrounding structures and topography” which standards were not ambiguous per se, but where the development contained a “cacophony” of house styles, the committee’s disapproval of the property owner’s plans was unenforceable]; Ashelford v. Baltrusaitis (Mo.Ct.App. 1980) 600 S.W.2d 581, 588 [association’s rejection of home building plans was unreasonable in light of evidence that other homes in development had exposed foundations and roof pitch similar to the prospective home builders; “what has been considered reasonable for other lot owners in the subdivision cannot be unreasonable when proposed by defendants”].) On the record before us, however, we cannot find Dolan-King proved she was subjected to the Board’s selective and arbitrary exercise of discretion with respect to her fence proposal.

[984]

IV. Attorney Fee Award

The Association appealed the court’s order granting Dolan-King an award of attorney fees under Civil Code section 1354, subdivision (f) [(now Civil Code section 5975)].[10] In light of our disposition, we reverse the court’s order granting Dolan-King’s motion for attorney fees and remand the matter to the superior court to determine entitlement to attorney fees under Civil Code section 1354, subdivision (f). (Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568.)

DISPOSITION

The judgment and order awarding attorney fees are reversed and the matter remanded for the superior court to enter judgment for the Association and determine entitlement to attorney fees under Civil Code section 1354, subdivision (f). The Association is to recover its costs on appeal.

Kremer, P. J., and Huffman, J., concurred.

A petition for a rehearing was denied July 20, 2000, and respondent’s petition for review by the Supreme Court was denied October 3, 2000. Mosk, J., was of the opinion that the petition should be granted.

_________________________________________________________________

[1] Article III of the Covenant sets forth the Art Jury’s duties and functions, which include approval of land development and subdivisions, “examination, correction, approval or rejection” of building plans and specifications, and approval of works of art. Specifically, paragraph 46, section 1, provides: “No part of the said property and/or of any property at any time within the jurisdiction of the Art Jury or of the Association shall be subdivided, laid out or improved by buildings, or structures, or its physical contours altered or changed, except in preparing land for orchard or farm use, except with the approval of the Association with the written advice of the Art Jury so as to insure a uniform and reasonably high standard of artistic result and attractiveness in exterior and physical appearance of said property and improvements.” The Association’s bylaws make clear that the Board’s approval of subdivisions and structures is invalid unless it has first received the written advice of the Art Jury.

[2] The Association’s board of directors adopted and published the Guidelines in June 1991 with a stated goal to “produce a Board-Adopted document, for use by builders, members, decisionmakers and staff, which will guide residential development so that future permit approvals will work to maintain the traditional character of Rancho Santa Fe . . . .” The Guidelines contain numerous specific examples and pictures of design principles that “increase the probability” of permit approval. For example, the Guidelines state that “APPROPRIATE FENCE TYPES ARE: two or three rail pasture style post and rail, peeler log and other pasture types which reflect the rural character of the community.” The Board acknowledged to homeowners that the Guidelines were not controlling, and that the Association had the right under the Covenant to evaluate land use and building applications by standards other than those contained in the Guidelines. The parties apparently stipulated the provisions of the Covenant controlled over those contained in the Guidelines.

[3] The arrangement, positioning and design of windows and doors in a building is referred to as “fenestration.” (Webster’s 10th Collegiate Dict. (1997) p. 429.)

[4] Dolan-King’s attorney attended the mediation over the fence design, at which he presented a revised design containing vertical wrought iron pickets and railing. The Art Jury rejected the revised proposal as too similar to the original proposal.

[5] Civil Code 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.”

[6] Dolan-King testified she was not aware of the existence of the Guidelines until after she submitted her plans to the Art Jury and her attorney purchased a copy of the Guidelines during the mediation over her fence.

[7] The court made no fact findings with regard to these buildings, to which we would defer.

[8] Section III of the Covenant address procedures and standards for appeals of the Art Jury’s decisions to the Association’s Board. It provides that at the appeal hearing, “the appellant and his witnesses shall be fully heard, the decision or ruling of the Art Jury appealed from shall be read and the members of the Art Jury and their officers shall be heard as to the reasons for making the decision or ruling appealed from. . . . After full hearing as aforesaid and due consideration the Board . . . shall have the power by affirmative vote of at least four-fifths of the entire membership of the said directors to modify said act, decision and/or ruling of the Art Jury; provided that said modification shall only be ordered in a case where the directors find that such decision or ruling of the Art Jury works an undue hardship upon said petitioner or that a modification of the decision or ruling of the Art Jury will not tend unduly to lower the standards of attractiveness of the surrounding property or depreciate the neighborhood, or that there was bias or prejudice on the part of one or more members of the Art Jury as to said decision or ruling.”

[9] Dolan-King did present evidence that in 1996, the Board approved a solid stucco wall for another property owner whose property bordered the edge of Rancho Santa Fe. That owner asked the Art Jury to approve his plans because his property was adjacent to a high traffic road and he and his family desired privacy and relief from traffic light and noise. But there was no evidence as to the character of that owner’s surrounding neighborhood or any other evidence that would tend to show arbitrariness, such as similarity between that owner’s home design and Dolan-King’s. She admits in her brief that the solid stucco wall north and adjacent to her property is not on land located within the Covenant’s jurisdiction.

[10] That section provides: “In any actions specified in subdivision (a) to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs. Upon motion by any party for attorney’s fees and costs to be awarded to the prevailing party in these actions, the court, in determining the amount of the award, may consider a party’s refusal to participate in alternative dispute resolution prior to the filing of the action.” (Civ. Code, § 1354, subd. (f).)

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