GINA L VINCENT ET AL VS ALBERT J BERDIS ET AL

Tentative Rulings

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Case Number: ****6116 Hearing Date: November 8, 2021 Dept: 34

SUBJECT: Motion for Attorneys’ Fees

Moving Party: Defendants Albert J Berdis and

Sherry D. Spees

Resp. Party: Plaintiffs Gina L. Vincent and

Darla R. Vincent

Defendants’ Motion for Attorneys’ Fees is GRANTED in the amount of $105,190.91.

I. BACKGROUND

This action arises from a dispute over land rights between two neighbors residing in the Hollywood Hills.

On December 7, 2017, Plaintiffs Gina L. Vincent, aka Gina Lorri Vincent Castagna, and Darla R. Vincent, aka Darla R. Vincent Stephens, commenced this action for quiet title and injunctive relief against Defendants Albert J. Berdis and Sherry D. Spees.

On February 27, 2018, Albert J. Berdis and Sherry D. Spees filed a verified cross-complaint against Gina L. Vincent, aka Gina Lorri Vincent Castagna, and Darla R. Vincent, aka Darla R. Vincent Stephens for (1) quiet title and injunctive relief; (2) elder abuse; (3) intentional infliction of emotional distress; (4) specific performance of conditions, covenants & restrictions and reservations; (5) trespass; (6) private nuisance; (7) injunctive relief; (8) enforce easement agreement and enjoin interference with easement; (9) breach of easement agreement; (10) interference with easement; (11) good faith improver of property owned by another; and (12) declaratory relief.

From February 20-22, 2019, the Court held a bench trial on the first phase of this matter. After the conclusion of this first trial, the parties negotiated for almost a year, and finally entered into a stipulation concerning the issues involved in Phase One. (See Interim Order After Bench Trial – Phase One, 2/27/2020.)

The Second Phase Bench Trial was held on June 7-8, 2021. The Court found in favor of Defendants on all remaining issues. (See Court’s Final Judgment After Bench Trial, 7/19/2021.)

On September 14, 2021, Defendants Albert J. Berdis and Sherry D. Spees filed the instant motion for attorneys\' fees pursuant to Code of Civil Procedure Plaintiffs Gina L. Vincent and Darla R. Vincent filed an opposition to the motion on October 6, 2021, and Defendants filed a reply to Plaintiffs\' opposition on October 13, 2021.

II. ANALYSIS

A. Legal Standard

Under CCP ; 5975(c) “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.”

The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.) “In determining what constitutes a reasonable attorney fee when a contract or statute provides for such an award, courts should consider the nature of the litigation, its difficulty, the amount involved, and the skill required and success of the attorney\'s efforts, his or her learning, age and experience in the particular type of work demanded, the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed.” (Contractors Labor Pool, Inc. v. Westway Contractors, Inc. (1997) 53 Cal.App.4th 152, 168.)

B. Discussion

1. Is the Prevailing Party in this Action Entitled to Attorneys’ Fees?

Parties in the present land rights disputed whether there were violations of the Covenants, Conditions, and Restrictions (“CC&R”) that bound Defendants’ parcel. (Minute Order, August 6, 2020, p. 8.) According to Plaintiffs:

“Defendants’ Parcel is bound by certain conditions and restrictions contained in that certain Declaration of Establishment of Conditions and Restrictions which was recorded on November 13, 1956 at book 52830 page 177 of the Official Records of the County of Los Angeles, State of California and that certain Declaration of Establishment of Restrictions which was recorded on March 31, 1965 at book 5031 of the Official Records of the County of Los Role State of California (collectively, “Governing Documents”), copies of which are attached as Exhibits “6” and “7” and are incorporated by reference.” (Third Amended Complaint, ¶ 22, p. 8:22-28.)

Plaintiffs argued that the Governing Documents “provide among other things, that Defendants’ Parcel shall be used only for residential purposes, that the roof on the single-family residence on Defendants’ Parcel shall be gabled and covered in tiles, … and that the fences on the Governed Properties shall not exceed six (6) feet in height.” (Third Amended Complaint, ¶ 23, p. 9:3-11.)

The Court found in this case that: (1) “any violation of the CC&R’s – even if they were reasonable and could be enforced by Plaintiffs – would not be a cause of any possible diminution in the value of Plaintiffs’ property,” (2) “that the partial view impairment of Plaintiffs’ view would still exist if Defendants’ roof had been Spanish-styled and tiled,” and (3) that “[t]he Court, however, need not determine if the CC&R’s are enforceable, either in whole or in part, because Plaintiffs and their parents waived their right to enforce these CC&R’s against Defendants.” (Statement of Phase 2 Decision, June 16, 2021, p. 2.)

California Civil Code ; 5975(c) authorizes attorneys’ fees and costs in accord with CCP ; 1033.5(a)(10) in such conflicts. “In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” (Civil Code ; 5975(c).)

Defendants, who are the prevailing party, are entitled to attorneys’ fees.

2. If Prevailing Party Receives Attorneys’ Fees, How Much?

On February 27, 2020, the Court filed its Interim Order After Bench Trial—Phase One. (“Interim Order”)

As indicated above, the parties negotiated for over a year after Phase One of the trial, and ultimately stipulated to the Interim Order that was then entered by the Court. Since the Interim Order confirmed the parties’ negotiated settlement, there was no prevailing party as to Phase One.

Therefore, Court will only award Defendants their reasonable attorneys’ fees from the Interim Order’s filing (February 27, 2020) to the present.

The Price Declaration features spreadsheets that itemize the attorneys’ fees and costs claimed by Defendant’s counsel. Defendants originally requested $706,862.68 in attorney’s fees and costs. (Price Decl., p. 4:7.) Defense counsel Kevin J. Price attests that his firm, Mokri Vanis & Jones, LLP “maintained time entries for all of the work performed in this matter in order to submit billing statements to AIG Insurance Company for payment.” (Price Decl., ¶ 7, p. 4:9-10.) Price maintains that the billing record offered in Exhibit One of the Price Declaration is “an accurate record maintained in the regular course of business and are the product of contemporaneous time entries and my personal review and approval of the time spent for each legal task.” (Price Decl., ¶ 7, p. 4:14-16.) The billing record offered in Exhibit One lists dates attorneys worked, the hours they spent, and the rates at which their labor was billed. However, the Court finds little utility in the activity columns, as scant information is offered about attorney activity.

For example, on page 8 of the Exhibit One, Emma Plotnik has two entries on January 22, 2021. The activity for both entries is “Research”. The first entry is for 0.8 hours, the second 2.80 hours. No further information is provided. The Court cannot know what Emma Plotnik researched, how important or complex this research assignment was, or whether this research was reasonably necessary. The next three entries listed for Emma Plotnik are for February 2 and February 4, 2021. The description for these 6.9 hours consists of the statement “Plan and prepare for”. No other information is provided. Emma Plotnik’s five activity entries on page 8 of Exhibit 1 display 10.5 hours of attorney labor billed at $93.00 per hour, for a sum of $976.50; however the Court is unable to determine whether this calculation is reasonable because Defendants provide so little information about attorneys’ and paralegals’ activities.

Another stark – but unfortunately not unique – example is on page 5 of Exhibit One. The last six entries for Brandon Kelly are:

8/20/2019	A104 -	Review/analyze	Vincent, Gina v. Berdis, Albert	0.4	$191.00 hr
8/20/2019	A104 -	Review/analyze	Vincent, Gina v. Berdis, Albert	0.9	$191.00 hr
9/20/2019	A103 -	Draft/revise	Vincent, Gina v. Berdis, Albert	0.9	$191.00 hr
3/23/2020	A103 -	Draft/revise	Vincent, Gina v. Berdis, Albert	1.9	$191.00 hr
3/25/2020	A103 -	Draft/revise	Vincent, Gina v. Berdis, Albert	1.8	$191.00 hr
3/27/2020	A103 -	Draft/revise	Vincent, Gina v. Berdis, Albert	2.1	$191.00 hr

The Court has been given no further information – i.e., no information on what documents Kelly reviewed, analyzed, drafted, or revised.

The Court carefully reviewed all the entries in Exhibit One. The aggregate billing for all entries within the applicable timeframe equals $118,955.90. This figure represents the ceiling upon which attorneys’ fees would be awarded by this Court.

3. How Much in Attorneys’ Fees Have Defendant’s Requested?

Defendants claimed $505,781.80 in attorneys’ fees in their Motion for Attorneys’ Fees filed September 14, 2021. (Motion for Attorneys’ Fees, p. 9:9.) However, in their Reply to Plaintiffs’ Opposition to Motion for Attorneys’ Fees, Defendants state that they “seek attorneys’ fees in this motion of $105,190.91, applicable to the second Cause of Action for Breach of the CC&Rs.” (Reply, p. 4:1.)

The Court finds that Defendants have modified their original motion for attorneys’ fees to avoid duplicative payment or unreasonable fees and now seek $105,190.91 in attorneys’ fees.

4. Did Plaintiffs Meet their Burden to Challenge the Requested Attorneys Fees?

“In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488, quoting Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Ass’n (2008) 163 Cal. App. 4th 550, 564.)

Plaintiff’s Opposition argues (1) that Civil Code ; 5975 applies only to actions to enforce the governing documents of a “Common Interest Development (“CID”) as defined by Civil Code ;; 4000 et seq., The Davis-Sterling Common Interest Development Act, (2) that attorneys’ fees and costs must be apportioned among the various causes of action involved, and (3) that Defendants’ fees were “widely excessive under the “Lodestar” or “touchstone” methodology.” (Opposition, p. 2:4-7, 2:17-18.)

Plaintiffs did not “point to the specific items challenged, with a sufficient argument and citations to the evidence.” Nor have Plaintiffs’ counsel provided evidence of their own billing rates and attorneys’ fees incurred. It is not uncommon for courts to compare opposing counsel’s fees to help determine whether the moving party’s fees are reasonable. That is because a “comparative analysis of each side’s respective litigation costs may be a useful check on the reasonableness of any fee request.” (Mountjoy v. Bank of America, N.A. (2016) 245 Cal.App.4th 266, 273, 281, quoting Donahue v. Donahue (2010) 182 Cal.App.4th 259, 272.)

“[T]here is one particularly good indicator of how much time is necessary [for the purpose of determining reasonableness of attorneys’ fees] . . . and that is how much time the other side’s lawyers spent . . . [S]uch a comparison is a useful guide in evaluating the appropriateness of time claimed. If the time claimed by the prevailing party is of a substantially greater magnitude than what the other side spent, that often indicates that too much time is claimed. Litigation has something of the tennis game, something of war, to it; if one side hits the ball, or shoots heavy artillery, the other side necessarily spends time hitting the ball or shooting heavy artillery back.” (Democratic Party of Washington State v. Reed (9^th Cir. 2004) 388 F.3d 1281, 1287.)

However, as indicated above, Plaintiffs’ counsel has not provided the Court with any evidence of its own attorneys’ fees for either Phase One or Phase Two of this case.

The Court finds that Plaintiffs have not met their evidentiary burden to successfully challenge Defendants’ attorneys’ fees claim as excessive.

5. Analysis

“[W]hen a voluminous fee application is made the court may make across-the-board percentage cuts either in the number of hours claimed or in the final lodestar figure” (Morris v. Hyundai Motor America (2019) 41 Cal.App.5th 24, 40, quoting Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 41 [internal quotation marks and ellipses deleted].)

The Court has received hundreds of pages of billing records for defense counsel. (See Exhibits A-C to the Price Declaration.)

Defendants, the prevailing party, are entitled to attorneys’ fees for Phase Two of these proceedings. The Court reviewed defense counsel’s billing records, which show the following entries during Phase Two:

Attorney Name	Hours Worked	Hourly Rate	Total Billed
Toni Boswell	3.2	$93.00	$297.60
Vivienne Chen	243.9	$191.00	$46,584.90
Thomas Collins	11.9	$93.00	$1,106.70
Richard DiCorrado	57	$205.00	$11,685.00
Kevin Dinh	24.5	$191.00	$4,679.50
Taylor Hunter	3.3	$191.00	$630.30
Ed Jackson	34.6	$93.00	$3,217.80
Brandon Kelly	5.8	$191.00	$1,107.80
Steve Kester	28	$205.00	$5,740.00
Emma Plotnik	97.6	$93.00	$9,076.80
Kevin Price	118.5	$205.00	$24,292.50
Richard Vanis	51.4	$205.00	$10,537.00
Total Attorneys\' Fees Defendants Requested:		$118,955.90

The aggregate billing for all of Defendants’ entries within the applicable timeframe equals $118,955.90. However, defense counsel has requested attorneys fees of only $105,190.91. (Reply, p. 4:1.) Although Defense counsel does not explain these entries with any degree of specificity, Plaintiffs have not met their burden to challenge any of these entries.

The Court has been intimately involved with this case for almost four years. It has viewed the site, has held innumerable meetings with counsel, has presided over two court trials, and has compiled over 125 pages of notes related to this case. It is well-aware of the skill of all counsel involved in this case. It is also aware of the credibility and bona fides of all parties.

The Court finds that the $105,190.91 requested in attorneys fees for Phase Two of the trial is reasonable.

III. CONCLUSION

Defendants’ Motion for Attorneys’ Fees is GRANTED in the amount of $105,190.91.

SUBJECT: Motion for Sanctions

Moving Party: Defendants Albert J Berdis and

Sherry D. Spees

Resp. Party: Plaintiffs Gina L. Vincent and

Darla R. Vincent

Defendant’s Motion for Sanctions is DENIED.

I. BACKGROUND

This action arises from a dispute over land rights between two neighbors residing in the Hollywood Hills.

On December 7, 2017, Plaintiffs Gina L. Vincent, aka Gina Lorri Vincent Castagna, and Darla R. Vincent, aka Darla R. Vincent Stephens, commenced this action for quiet title and injunctive relief against Defendants Albert J. Berdis and Sherry D. Spees.

On February 27, 2018, Albert J. Berdis and Sherry D. Spees filed a verified cross-complaint against Gina L. Vincent, aka Gina Lorri Vincent Castagna, and Darla R. Vincent, aka Darla R. Vincent Stephens for (1) quiet title and injunctive relief; (2) elder abuse; (3) intentional infliction of emotional distress; (4) specific performance of conditions, covenants & restrictions and reservations; (5) trespass; (6) private nuisance; (7) injunctive relief; (8) enforce easement agreement and enjoin interference with easement; (9) breach of easement agreement; (10) interference with easement; (11) good faith improver of property owned by another; and (12) declaratory relief.

From February 20-22, 2019, the Court held a bench trial on the first phase of this matter. After the conclusion of this first trial, the parties negotiated for almost a year, and finally entered into a stipulation concerning the issues involved in Phase One. (See Interim Order After Bench Trial – Phase One, 2/27/2020.)

The Second Phase Bench Trial was held on June 7-8, 2021. The Court found in favor of Defendants on all remaining issues. (See Court’s Final Judgment After Bench Trial, 7/19/2021.)

On September 14, 2021, Defendants Albert J. Berdis and Sherry D. Spees filed the instant motion for sanctions pursuant to Code of Civil Procedure ; 2033.420. Plaintiffs Gina L. Vincent and Darla R. Vincent filed an opposition to the motion on October 6, 2021, and Defendants filed a reply to Plaintiffs\' opposition on October 13, 2021.

II. ANALYSIS

A. Legal Standard

"If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney\'s fees." (CCP ; 2033.420(a).)

B. Discussion

Defendants move the Court for an award of cost-of-proof sanctions in the amount of $105,190.91 against Plaintiffs Gina Vincent and Darla Vincent, on the following grounds: (1) Plaintiff unreasonably refused to admit significant indisputable facts, (2) Defendants were forced to prove those facts at trial, and (3) Defendants are entitled to recover costs as cost-of-proof sanctions. (Motion for Cost-of-Proof Sanctions, p. 2:7-9.)

Defendants argue that Plaintiff Gina Vincent offered testimony which demonstrates that she was aware of the roof on Defendants’ home “when it went up.” (Motion for Sanctions, p. 7:2.) “It is undisputed that construction of the roof occurred in the 1995-98 timeframe, and that the Certificate of Occupancy was issued on February 6, 1998.” (Motion for Sanctions, p. 7:2-4.) The requests dealt with a central concern of the Phase Two trial: whether the statute of limitations bared Plaintiff’s claim for CC&R breach. (Motion for Sanctions, p. 9:12-13.).

Defendants argue that during the Phase Two trial period, Plaintiff maintained two claims: Roof Issues and Tree Issues. (Motion for Sanctions, p. 11:10-11.) Defendants argue that the roof concerns arose from the CC&Rs and were all subject to the five-year statute of limitations defense. (Motion for Sanctions, p. 11:12-13.)

Plaintiffs argue that under CCP ; 2033.420(b)(2 & 3), the motion for sanctions should be denied. (Opposition, p. 3:3-13.)

“b) The court shall make this order unless it finds any of the following:

(1) An objection to the request was sustained or a response to it was waived under Section 2033.290.

(2) The admission sought was of no substantial importance.

(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.

(4) There was other good reason for the failure to admit.”

CCP ; 2033.420(b).)

Plaintiffs argue further that the Court must apportion fees and costs among the various causes of action involved. (Opposition, p. 3:15—4:17.)

Defendants counter that they proved at trial a fact Plaintiffs should have admitted during discovery, and that they seek costs of proof, not a contractual award of attorneys’ fees. (Reply, p. 2:1-26.)

The Court finds that Plaintiffs lacked a reasonable ground to believe that they would prevail on their opposition to the fact that Gina Vincent was aware of the roof obstruction “when it went up” in the late 1990’s.

However, in Defendants’ Reply to Pl.’s Opposition to Motion for Attorneys’ Fees, Defendants admit the following:

“Defendants do not seek a double-recovery of fees and costs, and acknowledge that the award of attorneys’ fees should be apportioned only to the second Cause of Action for Enforcement of CC&Rs. It is noted that Plaintiffs did not object to Defendants’ Memorandum of Costs in the amount of $52,561.77, and that Defendants’ Motion for Cost-of Proof Sanctions (seeking $105,190.91 in sanctions) is pending.

“Although the instant motion seeks attorneys’ fees and costs and the Motion for Cost-of-Proof Sanctions seeks sanctions (guided in amount by the attorneys’ fees and costs incurred as a result of Plaintiffs’ failure to admit facts), both motions seek amounts that should not be duplicated between them, as both arise out of the View Issues through allegations of breach of the two CC&Rs.

“In short, Defendants seek attorneys’ fees in this motion of $105,190.91, applicable to the second Cause of Action for Breach of the CC&Rs. Defendants also seek Cost-of-Proof sanctions in the same amount, for failure to admit facts related to the statute of limitations for breach of the CC&Rs.

“To be clear, Defendants do not seek the amount of $105,190.91 twice; they seek solely this amount, however it may be awarded, under either motion or divided between both.” (Reply to Pl.’s Opposition to Motion for Attorneys’ Fees, p. 3:16—4:5.)

Defendants admit that to avoid double recovery the Court should need not grant cost-of-proof sanctions if it fully grants Defendants’ motion for attorneys’ fees.

As indicated above, the Court is awarding attorney\'s fees in the requested amount of $105,190.91. Therefore, to avoid a duplicative award, the Court DENIES this motion.

III. CONCLUSION

Defendant’s Motion for Sanctions is DENIED.

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Case Number: ****6116    Hearing Date: August 06, 2020    Dept: 34

SUBJECT: Motion for Judgment on the Pleadings

Moving Party: Defendants Albert J. Berdis and Sherry D. Spees

Resp. Party: Plaintiffs Gina L. Vincent and Darla R. Vincent

Defendants’ motion for judgment on the pleadings is DENIED.

BACKGROUND:

This action arises from a dispute over land rights between two neighbors residing in the Hollywood Hills.

On December 7, 2017, Plaintiffs Gina L. Vincent, aka Gina Lorri Vincent Castagna, and Darla R. Vincent, aka Darla R. Vincent Stephens, commenced this action for quiet title and injunctive relief against Defendants Albert J. Berdis and Sherry D. Spees.

On February 27, 2018, Albert J. Berdis and Sherry D. Spees filed a verified cross-complaint against Gina L. Vincent, aka Gina Lorri Vincent Castagna, and Darla R. Vincent, aka Darla R. Vincent Stephens for (1) quiet title and injunctive relief; (2) elder abuse; (3) intentional infliction of emotional distress; (4) specific performance of conditions, covenants & restrictions and reservations; (5) trespass; (6) private nuisance; (7) injunctive relief; (8) enforce easement agreement and enjoin interference with easement; (9) breach of easement agreement; (10) interference with easement; (11) good faith improver of property owned by another; and (12) declaratory relief.

On July 27, 2018, the Court granted Albert J. Berdis’ motion for trial preference pursuant to Code of Civil Procedure section 36.

On August 24, 2018, the Court granted Plaintiffs’ motion for leave to file a first amended complaint.

On August 31, 2018, Plaintiffs filed a first amended complaint against Defendants for (1) quiet title and injunctive relief; (2) enforcement of covenants, conditions and restrictions; and (3) declaratory relief.

On September 21, 2018, the Court granted Gina L. Vincent’s motion to quash deposition subpoena.

On October 22, 2018, the Court denied Defendants’ motion for preliminary judgment.

On October 30, 2018, Albert J. Berdis and Sherry D. Spees filed a verified first amended cross-complaint for (1) quiet title and injunctive relief; (2) elder abuse; (3) intentional infliction of emotional distress; (4) specific performance of conditions, covenants & restrictions and reservations; (5) trespass; (6) private nuisance; (7) injunctive relief; (8) enforce easement agreement and enjoin interference with easement; (9) breach of easement agreement; (10) interference with easement; (11) good faith improver of property owned by another; (12) declaratory relief; (13) trespass to timber; and (14) invasion of privacy.

On November 8, 2018, Plaintiffs filed a second amended complaint against Defendants for (1) quiet title and injunctive relief; (2) enforcement of covenants, conditions and restrictions; (3) declaratory relief; (4) trespass; (5) conversion; and (6) negligence.

On November 27, 2018, the Court granted Plaintiffs’ ex parte application for leave to file a third amended complaint (“TAC”).

On November 30, 2018, Plaintiffs filed the TAC against Defendants for (1) quiet title and injunctive relief; (2) enforcement of covenants, conditions and restrictions; (3) declaratory relief; (4) trespass; (5) conversion; and (6) negligence.

On February 15, 2019, the Court granted leave for Defendants/Cross-Complainants to file a second amended cross-complaint.

From February 20-22, 2019, the parties appeared for the non-jury trial.

On February 25, 2019, the Court scheduled the non-jury trial for April 5, 2019.

On March 6, 2019, Albert J. Berdis and Sherry D. Spees filed a verified second amended cross-complaint for (1) quiet title and injunctive relief; (2) elder abuse; (3) intentional infliction of emotional distress; (4) specific performance of conditions, covenants & restrictions and reservations; (5) trespass; (6) private nuisance; (7) injunctive relief; (8) enforce easement agreement and enjoin interference with easement; (9) breach of easement agreement; (10) interference with easement; (11) good faith improver of property owned by another; (12) declaratory relief; (13) trespass to timber; and (14) invasion of privacy.

On March 29, 2020, the Court granted Defendants ex parte application to continue the last day of trial pursuant to stipulation. The Court continued the non-jury trial to April 11, 2019.

On April 11, 2019, the parties appeared for a non-jury trial.

On February 27, 2020, the Court signed the interim order after bench trial – phase one.

On January 5, 2020, Defendants filed the instant motion for judgment on the pleadings as to the second cause of action in the TAC.

ANALYSIS:

I. Motion for Judgment on the Pleadings

A. Legal Standard

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)

B. Request for Judicial Notice

Evidence Code section 452, subdivision (c) provides that the court may take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.”

“‘While courts may notice official acts and public records, “[courts] do not take judicial notice of the truth of all matters stated therein.” [Citations.] “[T]he taking of judicial notice of the official acts of a governmental entity does not in and of itself require acceptance of the truth of factual matters which might be deduced therefrom, since in many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom.”’” (Ragland v. U.S. Bank National Association (2012) 209 Cal.App.4th 182, 194, quoting Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another ground in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)

Defendants request that the Court take judicial notice of the following documents:

· Exhibit 1: Plaintiffs’ TAC;

· Exhibit 2: A legible copy of the ‘Establishment of Conditions and Restrictions’ recorded on November 13, 1956 (‘1956 Restrictions’), attached in illegible form to Plaintiffs’ TAC as Exhibit 6;

· Exhibit 3: Certified records of the Secretary of State of Delaware for Hollywood Commercial Buildings, Inc; and

· Exhibit 4: Certified records from the Secretary of State for Dor Mar Properties, Inc.

Plaintiff submit objections to the request for judicial notice as to Exhibits 3 and 4, on the grounds that “even assuming that courts may take judicial notice of the existence of records from the secretary of state as an ‘official act’ under Evidence Code section 452(c), the courts have consistently held that it may not take judicial notice of these records . . . .” (Plaintiffs’ Objections, p. 2:3-7, p. 3:1-4.)

The Court DENIES Defendants’ request as to Exhibits 1 and 2 as superfluous. (Cal. Rules of Court, rule 3.1110(d).) Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

The Court GRANTS Defendants’ request for judicial notice as to the existence of Exhibits 3 and 4, but not of the truth of all matters stated therein. (Evid. Code, ; 452, subd. (c); Ragland, supra, 209 Cal.App.4th at p. 194.)

C. Evidentiary Objections

Plaintiffs submit four objections to the declaration of Defendants’ counsel, Kevin J. Price. These objections are tacked on to the Pleading titled Objections to Judicial Notice. This is procedurally improper. Nonetheless, overlooking this procedural irregularity, the Court SUSTAINS these objections.

D. Discussion

Plaintiffs’ second cause of action is based on the allegations that Defendants installed a roof on their house that is not gabled and covered in tiles, in violation of the Covenants, Conditions and Restrictions (“CC&R’s”) that Defendants’ parcel is bound by. (TAC, ¶¶ 22-24.) Plaintiffs allege that due to the installation of Defendants’ roof that is not gabled and covered in tiles, their views have been impaired and they demand that Defendants remedy the violations and compensate Plaintiffs for the damages caused by these violations. (Id. at ¶ 25.)

Defendants move for judgment on the pleadings as to Plaintiffs’ TAC on the grounds that the second cause of action for enforcement of covenant conditions and restrictions fails to state facts sufficient to constitute a cause of action. (Motion, p. 2:3-7.) In particular, Defendants argue that the second cause of action are insufficiently plead for three reasons: (1) the CC&R’s at issue do not regulate, restrict, or make reference to view rights, thus it does not provide the remedy that Plaintiffs are seeking; (2) California law does not recognize view obstruction as an actionable tort; and (3) Plaintiffs do not have standing to enforce the 1956 Restrictions. (Id. at pp. 3:4-7, 4:18.)

1. Standing

Defendants first argue that “there are insufficient facts pled to support the contention that Plaintiffs are successors in interest to Hollywood Commercial Builders, Inc. for the purposes of enforcing the 1956 Restrictions” because Plaintiffs “plead only the legal conclusion that they are ‘successors in interest’ to Hollywood Commercial Buildings, Inc.” (Motion, p. 5:17-20.)

Defendants also argue that Exhibit 3 of their request for judicial notice, according to the Delaware Secretary of State’s certified records, Plaintiffs are not successors in interest to Hollywood Commercial Buildings, Inc. who filed the 1956 Restrictions. (Id. at p. 4:23-5:1.) Defendants cite to paragraph 5 of their counsel’s declaration to assert that (1) “Plaintiffs’ names do not appear anywhere in the Delaware records of Hollywood Commercial Builders[;]” (2) “Plaintiffs’ father’s name does not appear anywhere in the Delaware records of Hollywood Commercial Builders, Inc.[;]” and (3) notes “that Plaintiff Gina L. Vincent was born on April 6, 1956, and that Plaintiff Darla R. Vincent was born in or about 1960” where Hollywood Commercial Builders, Inc. was dissolved on or about April 25, 1961. (Id. at p. 5:1-8.)

In opposition, Plaintiffs first argue that “Defendants attempt to establish Plaintiffs' lack of standing as the subject developer's successors through documents from the Delaware and California secretaries of state the contents of which this Court may not take judicial notice.” (Opp., p. 4:4-7.) Therefore, Plaintiffs argue, “these matters are outside the pleadings and proper judicial notice and cannot not be considered on a motion for judgment on the pleadings.” (Id. at p. 4:7-8.)

Second, Plaintiffs argue that they “have sufficiently alleged their standing to enforce the CC&Rs either as the developer's successors in interest (TAC, ¶ 22:7-8) or as the owners of two of the lots described in the CC&Rs, i.e., Lots 3 and 9 (TAC, ¶ 9; Ex. 6, p. 1; Ex. 7, p. 1.).” (Id. at p. 7:2-4.) Plaintiffs argue that “even assuming that Plaintiffs are not the developer's successors, the CC&Rs are replete with references that the CC&Rs may be enforced by any of the future owners of the real properties which are described therein, including Plaintiffs as the owners of Lots 3 and 9.” (Id. at p. 4:9-12, citing TAC, Ex. 10, p. 11; Ex. 3, p. 21.)

First, the Court agrees that Defendants are improperly attempting to establish Plaintiffs’ lack of standing from matters not judicially noticed or that appear on the face of the TAC.

Second, the Court finds that Plaintiffs have sufficiently alleged, for purposes of opposing this motion, that they have standing to enforce the 1956 Restrictions. Plaintiffs allege that “Defendants’ Parcel is bound by certain conditions and restrictions contained in that certain Declaration of Establishment of Conditions and Restrictions which was recorded on November 13, 1956 at book 52830 page 177 of the Official Records of the County of Los Angeles, State of California and that certain Declaration of Establishment of Restrictions which was recorded on March 31, 1965 at book 5031 of the Official Records of the County of Los Role State of California (collectively, ‘Governing Documents’), copies of which are attached as Exhibits ‘6’ and ‘7’ and are incorporated by reference.” (TAC, ¶ 22.) Plaintiffs allege that they “are the successors in interest to the declarants of the Governing Documents.” (Ibid.) Plaintiffs further allege that they are owners of the of Lots 3 and 9, mentioned in the CC&Rs (id. at ¶¶ 9, 11); and the CC&Rs covers Lots 1 to 18 for Tract No. 20606 (Id. at Ex. 6).)

Accordingly, the Court denies the motion for judgment on the pleadings as to the issue of standing.

2. Sufficiency of Allegations in Second Cause of Action

“It has long been established in this state that a landowner has no easement over adjoining land for light and air in the absence of an express grant or covenant.” (Katcher v. Home Sav. And Loan Assoc. (1966) 245 Cal.App.2d 425, 429.) However, a right to an unobstructed view “may be created by private parties through the granting of an easement [citations] or through the adoption of conditions, covenants, and restrictions.” (See Pacifica Homeowners' Association v. Wesley Palms Retirement Community (1986) 178 Cal.App.3d 1147, 1152.)

Defendants argue that “Plaintiffs’ claim for monetary or other damages for the impairment of their view by Defendants’ roof fails because ‘[a]s California does not recognize the doctrine of ancient lights [citations omitted] or a landowner’s “natural right to air, light or an unobstructed view” [citations omitted], landowners cannot enjoin obstructions as a private nuisance.’” (Motion, p. 4:6-10, citing Kucera v. Lizza (1997) 59 Cal.App.4th 1141, 1150.)

Defendants acknowledge that “California only recognizes the right to an unobstructed view when that right is created by private parties through the granting of an easement, through the adoption of conditions, covenants, and restrictions, or when created by the Legislature.” (Id. at p. 4:10-15, citing Pacific Homeowners’ Association, supra, 178 Cal.App.3d at p. 1152.) Defendants argue that “Plaintiffs’ prayer for damages must arise, if at all, from a private agreement (i.e. the Restrictions)” and “the 1956 Restrictions do not provide the remedy that Plaintiffs are seeking.” (Id. at p. 4:16-17, p. 5:22-23.) Defendants assert that “the 1956 Restrictions do not make any reference to monetary damages for violations of these ‘restrictions.’” (Id. at p. 5:25-26.) Further, Defendants argue that “there are no specific violations of the 1965 Restrictions pled in the TAC.” (Id. at p. 6:17.)

In opposition, Plaintiffs assert that they “agree with Defendants that they have not alleged that Defendants have breached any common law right to a view.” (Opp., p. 7:10-11.) However, Plaintiffs note that they “are not seeking a view based on common law but on the CC&Rs.” (Id. at p. 7:11-12.) Plaintiffs argue that they sufficiently alleged details establishing a breach of the CC&Rs and that “the CC&Rs, when read as a whole, describe uniform rules of development for homes within the tract which were designed to ensure that no homeowner build a house that was too tall or too aberrant.” (Id. at pp. 7:24-8:3, citing TAC, ¶ 24.)

The second cause of action titled “Enforcement of Covenants, Conditions and Restrictions,” alleges Defendants’ violations of provisions within the 1956 and 1965 Declarations of Establishment of Restrictions.

For the second cause of action, Plaintiffs allege that:

· The Governing Documents provide, among other things, that Defendants’ Parcel shall be used only for residential purposes, that the roof on the single family residence on Defendants’ Parcel shall be gabled and covered in tiles, that the single family residences within the governed properties shall be in harmony with the single family residences within that certain Tract 9932 in Los Angeles County commonly known as the Outpost Estates, that any modification of the single family residence on Defendants’ Parcel shall be first approved by declarants of the Governing Documents, that the natural gas burning lamps on the governed properties shall be used and maintained, and that the fences on the Governed Properties shall not exceed six (6) feet in height.” (TAC, ¶ 23.)

· “Within the last five (5) years, Defendants and Does 11 through 15, inclusive, violated the governing documents, including without limitation, in that they caused commercial filming enterprises to be conducted on the governed properties, in that they remodeled the single family residence on Defendants’ Parcel without the required prior approval, in that they remodeled said single family residence to a design that is not in harmony with the single family residences within said Outpost Estates and with a non-gabled roof covered in metallic materials, in that they altered the natural gas burning lamp which is closet to Defendants’ Parcel, and in that they constructed fences which are greater than six (6) feet in height on the Governed Properties.” (Id. at ¶ 24.)

· “Defendants and Does 11 through 15, inclusive, have failed and refused to correct said violations of the Governing Documents, said violations remains in existence, as a direct and proximate result of said violations, Plaintiffs have been damaged according to proof including in that Plaintiffs’ views from portions of Lot 9 have been impaired by said non-gabled roof covered in metallic materials, and Plaintiffs demand that Defendants and Does 11 through 15, inclusive, remedy said violations and compensate Plaintiffs for the damages caused by said violations.” (Id. at ¶ 25.)

· “The Governing Documents and the Code of Civil Procedure give Plaintiffs the power and duty to enforce the Governing Documents’ provisions, including those provisions violated by Defendants and Does 11 through 15, inclusive.” (Id. at ¶ 26.)

Here, the CC&Rs provide for a right to an unobstructed view CC&Rs

This Declaration of Establishment of Restrictions also provides: “That the roofs of all buildings erected, placed or maintained on any of said lots shall be gable, tiled roofs, unless other-wise permitted by the written approval of HOLLYWOOD COMMERCIAL BUILDINGS, INC., its successors or assigns, to the plans of such building.” (Id. at Ex. 6, p. 1(d).)

Further, the 1965 Declaration of Establishment of Restrictions state that:

“4.01 No building may be erected or maintained on any building site on said property except one (1) single family dwelling house not more than two (2) stories in height above the highest ground level, together with the accessory buildings hereinafter permitted.

5.03 No obstruction or trees having a height greater than ten (10) feet above the finished graded surface of the ground upon which it is located which would deprive any owner within a five hundred (500) foot radius of such obstruction or trees of a view shall be erected or maintained without the written approval of Declarant.” (Id. at Ex. 7, ;; 4.01, 5.03.)

Section 12.04 of 1965 Declaration of Establishment of Restrictions also provides that if “any condition or restriction herein contained is violated, in whole or in part, is hereby declared to be and constitute a nuisance, and every remedy allowed by law or equity against a nuisance, either public or private, shall be applicable against every such result, and may be exercised by Declarant.” (Id. at Ex. 7, ; 12.04.)

Therefore, plaintiffs successfully alleges a cause of action based out of violations of the CC&Rs resulting in the obstruction of their views. Because of these express provisions and the allegations in the TAC, the Court finds that the second cause of action is adequately stated, and the motion for judgment on the pleadings is therefore DENIED.

3. Motion to Strike

In their opposition, Plaintiffs include a section titled “motion to strike,” where they “move to strike the following portions of the Motion and Declaration of Kevin J. Price as being either beyond the face of the TAC or the matters of which this Court may take judicial notice . . . [:]

· Page 2, lines 17 and 18 of Motion ‘During Discovery, Plaintiffs' expert witness Appraiser David Gribin’s[sic] opined that the value of the “loss of view” to Plaintiffs' property is $200,000.’

· Sentences 2 and 3, footnote 1, page 2, of Motion.

· Page 5, lines 7 and 8 of Motion.

· Page 6, lines 13-15, of Motion, ‘Dor-Mar Properties, Inc. was incorporated in 2 California on October 5, 1955, before either Plaintiff was born. It was suspended on June 1, 1967. (Declaration of Kevin J. Price Paragraph 6 and Exhibit 4 to the Request for Judicial Notice)’.

· Page 6, footnotes 3 and 4 of Motion.

· Paragraph 5 of Declaration of Kevin J. Price.

· Paragraph 6 of Declaration of Kevin J. Price.

· Paragraph 7 of Declaration of Kevin J. Price.

· Paragraph 8 of Declaration of Kevin J. Price.” (Opp., p. 10:17 – p. 11:9.)

The Court has already addressed Plaintiffs’ objections with the foregoing portions in the objections section of this discussion. Further, such a “Motion to Strike,” buried in an opposition, is improper.

The Court DENIES Plaintiffs’ motion to strike.