This case was last updated from Los Angeles County Superior Courts on 06/09/2019 at 00:02:39 (UTC).

GINA L VINCENT ET AL VS ALBERT J BERDIS ET AL

Case Summary

On 12/07/2017 GINA L VINCENT filed a Property - Other Real Property lawsuit against ALBERT J BERDIS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is AMY D. HOGUE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6116

  • Filing Date:

    12/07/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

AMY D. HOGUE

 

Party Details

Petitioners, Plaintiffs and Cross Defendants

VINCENT GINA L.

STEPHENS R. VINCENT

CASTAGNA GINA LORRI VINCENT

VINCENT DARLA R.

Defendants, Respondents and Cross Plaintiffs

DOES 11 TO 20

ALL PERSONS UNKOWN CLAIMING ANY LEGAL OR

BERDIS ALBERT J.

SPEES SHERRY D

SPEES SHERRY D.

Other

VANIS RICHARD W. JR. ESQ.

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

HAWES ERIC EVERETT ESQ.

SHAPIRO MARC S.

Defendant Attorneys

VANIS RICHARD W. JR

BALFUS JONATHAN

KINCAID IVETTE

Cross Plaintiff Attorney

WEISS MICHAEL H.

Cross Defendant Attorney

HAWES ERIC EVERETT

 

Court Documents

SUMMONS CROSS-COMPLAINT

2/27/2018: SUMMONS CROSS-COMPLAINT

NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

4/2/2018: NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

Minute Order

5/4/2018: Minute Order

NOTICE OF MOTION AND MOTION OF ALBERT J. BERDIS FOR TRIAL PREFERENCE PURSUANT TO SECTION 36 OF THE CODE OF CIVIL PROCEDURE; DECLARATION OF ALBERT J. BERDIS

7/3/2018: NOTICE OF MOTION AND MOTION OF ALBERT J. BERDIS FOR TRIAL PREFERENCE PURSUANT TO SECTION 36 OF THE CODE OF CIVIL PROCEDURE; DECLARATION OF ALBERT J. BERDIS

DECLARATION OF LAURA J. MELTZER IN SUPPORT OF DEFENDANTS' MOTION FOR PRELIMINARY INJUNCTION

7/6/2018: DECLARATION OF LAURA J. MELTZER IN SUPPORT OF DEFENDANTS' MOTION FOR PRELIMINARY INJUNCTION

NOTICE RE; CONTINUANCE OF HEARING

8/9/2018: NOTICE RE; CONTINUANCE OF HEARING

CROSS-DEFENDANTS' OBJECTIONS TO CROSS-COMPLAINANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR A PRELIMINARY INJUNCTION

8/10/2018: CROSS-DEFENDANTS' OBJECTIONS TO CROSS-COMPLAINANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR A PRELIMINARY INJUNCTION

NOTICE RE: CONTINUANCE OF HEARING

8/21/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE RE: CONTINUANCE OF HEARING

8/21/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE RE: CONTINUANCE OF HEARING

8/21/2018: NOTICE RE: CONTINUANCE OF HEARING

Minute Order

8/24/2018: Minute Order

PLAINTIFF/CROSS-DEFENDANT GINA L. VINCENT'S NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENAS FOR PRODUCTION OF BUSINESS RECORDS UPON CEDARS SINAI MEDICAL CENTER AND REQUEST FOR MONETARY SANCT

9/10/2018: PLAINTIFF/CROSS-DEFENDANT GINA L. VINCENT'S NOTICE OF MOTION AND MOTION TO QUASH DEPOSITION SUBPOENAS FOR PRODUCTION OF BUSINESS RECORDS UPON CEDARS SINAI MEDICAL CENTER AND REQUEST FOR MONETARY SANCT

Reply

10/5/2018: Reply

Motion re:

11/5/2018: Motion re:

Proof of Service (not Summons and Complaint)

2/5/2019: Proof of Service (not Summons and Complaint)

Trial Brief

2/20/2019: Trial Brief

Minute Order

4/11/2019: Minute Order

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

5/24/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

204 More Documents Available

 

Docket Entries

  • 05/31/2019
  • Substitution of Attorney; Filed by Albert J. Berdis (Defendant)

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  • 05/31/2019
  • Substitution of Attorney; Filed by Sherry D. Spees (Defendant)

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  • 05/31/2019
  • Substitution of Attorney; Filed by Albert J. Berdis (Defendant); Sherry D. Spees (Defendant)

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  • 05/24/2019
  • at 08:30 AM in Department 34; Status Conference - Held - Continued

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  • 05/24/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore (Monica Castaneda, CSR# 10323)

    Read MoreRead Less
  • 05/24/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 05/24/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore (Suzanne Onuki, 13734)

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  • 05/22/2019
  • Notice (Clean Version of Plaintiff's Proposed Terms); Filed by Darla R. Vincent (Plaintiff); Gina L. Vincent (Plaintiff)

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  • 05/21/2019
  • Status Report; Filed by Albert J. Berdis (Defendant); Sherry D. Spees (Defendant)

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  • 04/26/2019
  • at 08:30 AM in Department 34; Hearing on Motion to Compel Further Discovery Responses - Not Held - Rescheduled by Party

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392 More Docket Entries
  • 12/15/2017
  • ExParte Application & Order; Filed by Plaintiff/Petitioner

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  • 12/15/2017
  • DECLARATION OF GINA L. VINCENT IN SUPPORT OF PLAINTIFFS' EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION OR ORDER SHORTENING TIME

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  • 12/15/2017
  • DECLARATION OF SHERRY D. SPEES IN OPPOSITION TO PLAINTIFF'S APPLICATION FOR TEMPORARY RESTRAINING ORDER

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  • 12/15/2017
  • DECLARATION OF ERICA PARKS RE INFORMAL NOTICE IN SUPPORT OF PLAINTIFFS' EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: RELIMINARY INJUNCTION, ETC.

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  • 12/15/2017
  • Minute Order

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  • 12/15/2017
  • PLAINTIFFS' EX-PARTE APPLICATION FOR A TEMPORARY RESTAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION OR, IN THE ALTERNATIVE, FOR AN ORDER SHORTENING TIME; ETC

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  • 12/15/2017
  • Minute order entered: 2017-12-15 00:00:00; Filed by Clerk

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  • 12/07/2017
  • COMPLAINT: 1. QUIET TITLE AND INJUNCTIVE RELIEF

    Read MoreRead Less
  • 12/07/2017
  • Complaint; Filed by Gina L. Vincent (Plaintiff); Darla R. Vincent (Plaintiff)

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  • 12/07/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC686116    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.

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