Judge: Donald F. Gaffney, Case: Kress v. Turtle Rock Terrace Community Association, Date: 2023-07-26 Tentative Ruling
TENTATIVE RULING:
Motion for Leave to Amend
Cross-Complainant Turtle Rock Terrace Community Association (the “Association”) moves for leave to file a first amended cross-complaint. For the following reasons, the motion is GRANTED.
Civil Procedure Code section 473(a)(1) provides that “[t]he court may . . . in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal. App. 3d 451, 461.) Because the policy favoring amendment is so strong, “it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.” (Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530 [internal quotations omitted].) This liberality only applies so long as there is no prejudice to the opposing party, however. (Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564.)
The Association’s proposed First Amended Cross-Complaint adds a cause of action for general negligence and refines the cause of action for negligence per se by identifying the code Cross-Defendants are alleged to have violated as well as new violations. The Association alleges Cross-Defendants modified the Association’s slope easement by improperly placing over one (1) foot of fill on the slope and in the easement which is substandard, is not in conformance with the original and surrounding soil on the slope and the slopes of adjacent properties, is not properly compacted, and was done without the requisite grading permit(s) and inspection from the City of Irvine; installed a block wall and fencing on the Association’s slope maintenance easement which does not comply with requirements of the California Building Code and renders the slope unstable and at risk of failure; and installed irrigation within the Association’s slope easement which has and continues to cause erosion to the slope.
The Association’s counsel states the facts giving rise to the amended allegations were discovered when he received the Association’s expert’s full report on March 7, 2023. (Tabback Decl. ¶ 3.) The Association sent the report and a Code of Civil Procedure section 998 Offer to Compromise to Cross-Defendants on March 22, 2023, but did not receive a response. (Id. at ¶ 4.) The Association’s counsel further states that representations from Cross-Defendants prevented the Association from properly making the amended allegations until its expert report was received. (Tabback Reply Decl. ¶ 6.)
Cross-Defendants state that permitting amendment would prejudice Cross-Defendants given their pending Motion for Summary Adjudication and the September 5, 2023, trial date. In their Motion for Summary Adjudication on Cross-Complainants Second Cause of Action for Negligence Per Se, Cross-Defendants argue that no violation of statute, ordinance, or regulation has been alleged or identified by the Association. (ROA No. 317.) When the Association identified California Building Code Section 1808.7 and the City of Irvine’s Grading Code and related Grading Manual (see ROA No. 372), Cross-Defendants correctly stated that the pleadings “set the boundaries of the issues to be resolved at summary judgment” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; see generally Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 [“pleadings serve as the outer measure of materiality in a summary judgment proceeding”]) and requested an opportunity to address the new allegations.
Here, as in Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1069, Cross-Defendants challenge the sufficiency of the Association’s Cross-Complaint. Because it is reasonably possible that the defect can be cured by an amendment, the court will exercise its discretion and grant the Association leave to file the First Amended Cross-Complaint. The prejudice identified by Plaintiffs/Cross-Defendants may be addressed by a trial continuance and, if appropriate, a request for costs pursuant to Code of Civil Procedure section 473(a)(2).
Cross-Complainant to give notice and to file and serve the proposed First Amended Cross-Complaint attached as Exhibit B to the Notice of Errata filed on July 13, 2023 (ROA No. 376).
Motion for Summary Adjudication (2nd Cause of Action)
Cross-Defendants Philip Kress and Daryl Kress, individually, and as Trustors and Trustees of the Kress Family Trust Dated October 9, 1987, move for summary adjudication of the second cause of action for negligence per se of Cross-Complainant Turtle Rock Terrace Community Association’s (the “Association”) Cross-Complaint.
In light of the fact that the court is granting the Association’s Motion for Leave to File a First Amended Cross-Complaint, Cross-Defendant’s Motion for Summary Adjudication of the Second Cause of Action for Negligence Per Se is DENIED as moot. (See State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131 [it is an error to grant summary adjudication on a cause of action contained in a previous complaint].)
Cross-Complainant to give notice.
Motion for Summary Adjudication (Declaratory Relief)
Plaintiffs Philip Kress and Daryl Kress, individually, and as Trustors and Trustees of the Kress Family Trust Dated October 9, 1987, move for summary adjudication of the third cause of action for declaratory relief of Plaintiffs’ Complaint. For the following reasons, Plaintiffs’ motion is GRANTED in part and DENIED in part.
A plaintiff seeking summary judgment meets its burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (Code Civ. Proc., § 437c(p)(1).) Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Id.)
Plaintiffs are the owners of the real property located 19251 Beckwith Terrace in Irvine, California (the “Property”). (Plaintiffs’ Separate Statement No. 6 [and evidence cited therein].) It is undisputed that Turtle Rock Terrace, the Irvine community in which Plaintiffs live, is a common interest development (“CID”). Its Governing Documents include the Bylaws and Declarations of Covenants, Conditions and Restrictions (“CC&Rs”). (Plaintiffs’ Separate Statement Nos. 1-6 [and evidence cited therein]. Defendant the Turtle Rock Terrace Community Association (the “Association”)
There are two Association-maintained slopes on Plaintiffs‘ Property — a slope west of Plaintiffs’ home and a slope south of their driveway and the cul-de-sac. (Plaintiffs’ Separate Statement No. 9 [and evidence cited therein].) The slope behind Plaintiffs‘ backyard (i.e., west of their home) runs downhill from east to west until it reaches a public sidewalk and Turtle Rock Drive. (Plaintiffs’ Separate Statement No. 11 [and evidence cited therein].) Above the western slope is a level portion of Plaintiffs‘ Property between Defendant‘s sprinklers (located at the crest of the slope) and Plaintiffs‘ rear fence/wall which ranges from approximately 2 ½ feet at its narrowest to over 5 feet at its widest. (Plaintiffs’ Separate Statement No. 12 [and evidence cited therein].) Planted just above the western slope, east of Defendant‘s sprinklers, is a row of ―Brush Cherry‖ (eugenia myrtifolia) trees (“Brush Cherries”). (Plaintiffs’ Separate Statement No. 13 [and evidence cited therein].)
Plaintiffs‘ Property is encumbered by a non-exclusive slope easement granting certain usage rights to Defendant upon the Property (the “Slope Easement”). (Plaintiffs’ Separate Statement No. 19 [and evidence cited therein].) The Slope Easement is an express easement that was created by a reservation in the CC&Rs governing the Turtle Rock Terrace Community and encumbers Plaintiffs‘ Property. (Plaintiffs’ Separate Statement No. 20 [and evidence cited therein].)
Plaintiffs seek summary adjudication of the third cause of action in their Complaint against the Association. The third cause of action for declaratory relief alleges that an “actual controversy has arisen and now exists as between Plaintiffs and
Defendant HOA [the Association] concerning their respective real property and easement boundary rights, in that Plaintiffs contend that the Article IX, §3 of the CC&R’s, and Exhibit B attached thereto describing the HOA’s easement upon Plaintiffs’ Property/Lot as ‘over the slopes within said tract appearing as shaded area on Exhibit “B” attached thereto for landscaping and maintenance of landscaping, slopes and drainage structures by the Association…’ includes and is circumscribed solely within the sloped portion of Plaintiffs’ Property/Lot the boundary of which lies at the crest (edge) of the slope, and does not include any level portion of the Plaintiffs’ Property/Lot including, but not limited to, any and all portions of Plaintiffs’ Property/Lot east of the crest (edge) of slope whereupon Plaintiffs’ relocated fence/wall, their former Twisted Juniper trees had been situated, and where Plaintiffs’ Brush Cherry Trees are presently situated, whereas
Defendant HOA contends that its slope maintenance easement under Article IX, §3 of the CC&R’s, and Exhibit B, includes an unspecified, undefined, and indeterminate area of the level
area of Plaintiffs’ Property/Lot, and that Defendant thereupon has no right to come upon Plaintiffs’ Property/lot and remove and destroy any such property at its option.” (Compl. ¶ 53.) The Complaint seeks “[1] a declaration as to the finite boundaries of the Defendant’s slope maintenance easement in relation to the crest (edge) of slope of their Property/Lot, and [2] that Defendant has no right under the CC&R’s, and without Plaintiffs’ consent and permission, to unilaterally enter upon any portion of Plaintiffs’ Property/Lot east of the crest (edge) of slope at the western edge of Plaintiffs’ Property/Lot for any purpose including but not limited to, landscaping and/or slope maintenance.”
Declaratory relief is available to a party “who desires a declaration of his or her rights or duties with respect to another.” (Code Civ. Proc., § 1060.) Code of Civil Procedure section 1060 permits a declaration of the parties’ rights and duties even if no other relief is requested. (Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 82.) “Declaratory relief operates prospectively, serving to set controversies at rest before obligations are repudiated, rights are invaded or wrongs are committed. Thus, the remedy is to be used to advance preventative justice, to declare rather than execute rights. [Citation.]” (Kirkwood v. California State Automobile Assn. Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59.) In essence, declaratory relief operates to declare future rights, not to address past wrongs. (Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497.) A party seeking declaratory relief must show a very significant possibility of future harm. (Coral Construction, Inc. v. City and County of San Francisco (2004) 116 Cal.App.4th 6, 17.) The court’s power to grant declaratory relief is discretionary. It may decline to grant such relief “in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” (Code Civ. Proc., § 1061.)
Plaintiffs first contend the easement reservation in Section 3 of Article IX of the CC&Rs governing the Property is unambiguous and by its plain language confers upon the Association usage rights over only “the slopes” for purposes of “landscaping and maintenance of landscaping, slopes and drainage structures.”
The interpretation of a written instrument, such as the CC&Rs at issue here, is essentially a judicial function to be exercised according to the generally accepted canons of interpretation of contracts so that the purpose of the instrument may be given effect. (Fourth La Costa Condominium Owners Assn. v. Seith (2008) 159 Cal.App.4th 563, 575 (Seith); Greater Middleton Assn. v. Holmes Lumber Co. (1990) 222 Cal.App.3d 980, 989.)
Restrictive covenants such as the CC&Rs
must be construed strictly against those seeking to enforce them, and in
favor of the unencumbered use of the property. (See Wing v. Forest
Lawn Cemetery Assn. (1940) 15 Cal.2d 472, 479 [recognizing “any
provisions of an instrument creating or claimed to create a [restrictive
easement] will be strictly construed, any doubt being resolved in favor of
the free use of the land”]; Chee v. Amanda Goldt Property Management
(2006) 143 Cal.App.4th 1360, 1377 (Chee) [noting “ ‘ “restrictive
covenants are construed strictly against the person seeking to enforce
them,” ’ ” in favor of the unencumbered use of property]; Smith
v. North (1966) 244 Cal.App.2d 245, 248 [noting when a restrictive
covenant is “subject to more than one interpretation, that construction
consonant with the unencumbered use of the property will be adopted,” and
“any doubt therein is resolved against enforcement of the restriction”].)
Keeping these principles in mind, courts nevertheless strive to give the instrument a just and fair interpretation, so that the intent of the parties—typically determined at the time when the instrument is formed, governs. (See Westrec Marina Management, Inc. v. Arrowood Indemnity Co. (2008) 163 Cal.App.4th 1387, 1392; Civ. Code, § 1636 [providing: “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful”].) Courts “ascertain that intention solely from the written contract, if possible.” (Westrec, 163 Cal.App.4th at 1392; § 1639 [providing: “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible”].) “Restrictions on the use of land will not be read into a restrictive covenant by implication, but if the parties have expressed their intention to limit the use, that intention should be carried out, for the primary object in construing restrictive covenants, as in construing all contracts, should be to effectuate the legitimate desires of the covenanting parties.” (Hannula v. Hacienda Homes (1949) 34 Cal.2d 442, 444–445.)
Section 3 of Article IX of the CC&Rs provides: “An easement over the slopes within said tract appearing as shaded areas on Exhibit ‘B’ attached hereto for landscaping and maintenance of landscaping, slopes and drainage structures by the Association is hereby reserved by Declarant together with the right to grant and transfer same.” (Plaintiffs’ Separate Statement No. 21 [and evidence cited therein].) Attached to the end of the CC&Rs is a map labeled: “Exhibit B” ―Tract No. 7081 in the County of Orange―’Slope and Drainage Structure Control Area Plan,’ ” sheet 1 of which depicts Plaintiffs’ Property, the southwestern-most lot at the cul-de-sac of Beckwith Terrace. (Plaintiffs’ Separate Statement No. 22 [and evidence cited therein].) The map attached to the CC&Rs as “Exhibit B” contains additional language reading: “area location for controlled slope and drainage structures shown thus [stippled shading] – in the event of any variance between the locations shown on this plan and the final location of constructed slopes and drainage structures, the final constructed locations shall prevail.” (Plaintiffs’ Separate Statement No. 23 [and evidence cited therein].)
The language in Section 3 of Article IX is clear and unambiguous. The scope and boundaries of the Slope Easement are defined and are limited to the “slopes within said tract.” The court issues a declaration that the boundaries of the Association’s slope maintenance easement are limited to the slopes within the tract identified in the map labeled: “Exhibit B” ―Tract No. 7081 in the County of Orange―’Slope and Drainage Structure Control Area Plan’ ”, and if there was any variance between the locations shown on this plan and the final location of constructed slopes and drainage structures, then the boundaries of the Association’s slope maintenance easement are limited to the final constructed locations. The court cannot read into the CC&Rs an easement that extends beyond the slopes to property owners’ fences by implication, as the Association urges.
Plaintiffs next seek a declaration that the Association “has no right under the CC&R’s, and without Plaintiffs’ consent and permission, to unilaterally enter upon any portion of Plaintiffs’
Property/Lot east of the crest (edge) of slope at the western edge of Plaintiffs’ Property/Lot for any purpose including but not limited to, landscaping and/or slope maintenance.” (Compl. ¶ 54.)
The Association has submitted evidence that Article IX, Section 2 of the CC&Rs provides for “Easements over the properties for the installation and maintenance of . . . water . . . lines . . . and drainage facilities . . .” (Association’s Separate Statement No. 82 [and evidence cited therein].) The court refuses to exercise its power to make the binding declaration sought by Plaintiffs. Because there is a triable issue of material fact regarding the Association’s right to enter Plaintiff’s Property to install and maintain water lines and drainage facilities, such a declaration is not proper at this time. (See Code Civ. Proc., § 1061 [“The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.”].)
Plaintiffs’ objections and the Association’s objections are overruled.
Plaintiffs to give notice.