Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

The action arises from a dispute between neighbors.  Plaintiffs Robert and Barbara Brilliant own the real property located at 14131 Beresford Road (the “Brilliant Property”).  Defendants Ted and Michele Kaplan (“Moving Defendants”) own the real property located at 14151 Beresford Road (the “Kaplan Property”).   

Plaintiffs allege that certain palm trees on the Kaplan Property block their view and violate the Mulholland Estates Homeowners Association, Inc.’s (“HOA”) Declaration of Covenants, Conditions and Restrictions (“Declaration” or “CC&R’s”) and Architectural Standards & Design Guidelines (“Design Guidelines”). 

The operative complaint alleges eight claims for (1) breach of contract, (2) enforcement of equitable servitudes, (3) breach of implied covenant of good faith and fair dealing, (4) breach of fiduciary duty, (5) nuisance, (6) negligence, (7) negligent misrepresentation and (8) declaratory relief.  All of the claims are alleged against the Moving Defendants except for the fourth cause of action for breach of fiduciary duty.   

This hearing is on Moving Defendants’ demurrer to the Complaint.  Moving Defendants argue that (1) Plaintiffs’ claims fail because a member of an HOA may not bring an action to enforce the HOA’s governing documents directly against another member except as to the Declaration, and Plaintiffs’ claims are rooted on violations of the Design Guidelines which are not part of the Declaration; (2) Plaintiffs’ claims for breach of contract and breach of the covenant of good faith and fair dealing fail because the Design Guidelines are not contracts; (3) the Design Guidelines apply only to new construction and the complained-of-landscaping on the Kaplan Property is not new construction, and (4) well established California law holds that a plaintiff may not maintain a nuisance claim premised on an alleged obstruction to a view. 

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Moving Defendants submit the Declaration of Tyler J. O’Brien, which shows the parties met and conferred only by email.  While this fails to satisfy the requirements of Section 430.41, the Court cannot overrule a demurrer based on an insufficient meet and confer.  (Code Civ. Proc. § 430.41(a)(4).)   

REQUEST FOR JUDICIAL NOTICE 

Moving Defendants request judicial notice of (1) the Declaration of Covenants, Conditions & Restrictions for Mulholland Estates, and (2) the Mulholland Estates Homeowners Association, Inc.’s Architectural Standards & Design Guidelines.  The Court grants the request pursuant to Cal. Evid. Code §§ 452(h) and 453.   

LEGAL STANDARD 

A demurrer tests the legal sufficiency of the allegations in a complaint.  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

Standing 

Moving Defendants argue that Plaintiffs lack standing to enforce the Design Guidelines against another member of the HOA.  The Court disagrees.   

The HOA is subject to the Davis Stirling Common Interest Development Act.  The Davis Stirling Act states that “[a] governing document other than the declaration may be enforced by the association against an owner of a separate interest or by an owner of a separate interest against the association.”  (Civ. Code § 5975(b).)  Thus, Plaintiffs lack standing to enforce any governing document other than the Declaration. 

Plaintiff contends they are seeking to enforce the Declaration, which requires compliance with the Design Guidelines.  They cite Art. XV § 16 which states: “Views shall only be protected to the following extent: (i) improvements constructed on each Lot shall comply with all applicable requirements of the [Design] Guidelines and the Architectural Committee Guidelines, and (ii) trees shall be pruned in accordance with the Architectural Committee Guidelines…”.    

Moving Defendants argue, however, that the Declaration expressly provides that the Design Guidelines “are not intended to be Incorporated by reference into, or made a part of, this Declaration[.]”  (Ex. A to RJN Art. XIV § 1(b).)  But this language is in conflict with Art. XV § 16 which does require compliance with all applicable requirements of the Design Guidelines.   

This conflict gives rise to an ambiguity in the Declaration.  On a demurrer, the Court must accept the Plaintiffs’ construction of an ambiguous provision, even if it may prove ultimately invalid.  (Schmier v. City of Berkeley (2022) 76 Cal.App.5th 549, 558.)   

Design Guidelines 

Moving Defendants next argue that Plaintiffs have not alleged a violation of the Design Guidelines because the Design Guidelines apply only to new improvements, not existing plantings such as Moving Defendants’ palm trees.  While the Court disagrees that the Design Guidelines apply only to new improvements, it agrees that Moving Defendants’ palm trees do not violate the Design Guidelines.   

The Design Guidelines require maintenance of improvements on an ongoing and continuous basis without regard to whether the improvement is new or existing.  For example, the Guidelines state that “on-lot maintenance shall be performed on a weekly basis and shall include: trimming and cutting lawns, pruning shrubs and trees that affect viewsheds of others, removal of dead or dying shrubs, removal of all weeds, and cleaning of all drains to protect slopes.”  (Ex. B to RJN § 2.5.3.)  The Guidelines also state “selected interior pruning during young growth and the pruning of heads are techniques to be employed regularly by Owners.”  (Id. §2.5.1.) 

The Design Guidelines, however, do not require Moving Defendants to remove or top their trees, as Plaintiffs allege in their Complaint.  (Compl. ¶46 (“To date, the owners … have failed and refuse to take any action …. including but not limited to topping and/or removing the Offending Trees located on [the Kaplans’ Property].”)  Plaintiffs rely heavily on Section 2.5.1 of the Design Guidelines, but nothing in that section requires the topping and/or removal of trees to protect Plaintiffs’ viewshed.   

Several of the clauses refer to new plantings and not existing ones.  For example, the Design Guidelines state “[t]he addition of tall trees … will be at infrequent intervals and will be arranged so as not to achieve a shape or density approaching that of a barrier.”  As a further example, the Design Guidelines state “[t]aller trees … are encouraged for the Rear Yard and rear slope areas.  The density of planting should be reasonably sparse in order to protect the viewshed of upper lots.”  These clauses are all about new plantings, not existing trees like the Kaplans’ palm trees.        

Other clauses refer to pruning and to shrubs, not removal and topping of trees.  For example, the Design Guidelines state that “[w]hen growth obstructs the viewshed of a neighboring lot to the south, these shrubs can be naturally topped.”  This language is not mandatory, and in any event, it applies to the topping of shrubs, not trees.  As another example, the Design Guidelines state “selected interior pruning during young growth and the pruning of heads are techniques to be employed regularly by Owners.”  The Design Guidelines also require “on-lot maintenance [to] be performed on a weekly basis, [which] shall include … [p]runing shrubs and trees that affect viewsheds of others.”  These clauses require pruning of trees (which Moving Defendants already do (Compl. ¶47)), not topping or removing them.  Indeed, the Design Guidelines prohibit Moving Defendants from removing trees, stating that “[a]ny removal of trees, other than in an emergency, shall be subject to approval of the Architectural Design Review Committee.”  (Ex. B to RJN at § 1.7.3.)   

In sum, Plaintiffs’ allegations do not support a claim that Moving Defendants violated the Design Guidelines.  The Court, therefore, sustains the demurrer.  The Court also sustains the demurrer without leave to amend.  While leave to amend should be liberally granted, Plaintiffs have the burden to show that an amendment could fix the defects in their Complaint.  (Blank, 39 Cal.3d at 318.)  Moving Defendants’ trees simply do not violate the Governing Documents, and Plaintiffs cannot amend their Complaint to allege that they do.  Given this ruling, the Court declines to consider Moving Defendants’ claim-specific arguments.           

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS the Moving Defendants’ demurrer without leave to amend.   

DATED:  April 19, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court 

 

 

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

 

ROBERT BRILLIANT AS TRUSTEE OF THE BRILLIANT FAMILY TRUST DATED JULY 1, 1988, et al.,                           Plaintiffs,             v.   MULHOLLAND ESTATE HOMEOWNERS ASSOCIATION, et al.,                           Defendants.

Case No.:  23SMCV04140     Hearing Date:  April 19, 2024   order RE:   Defendant TYSON BEEM, AS   TRUSTEE OF the MAXIMILLIAN   TRUST’S demurrer to   complaint

 

BACKGROUND

This action arises from a dispute between neighbors.  Plaintiffs Robert and Barbara Brilliant own the real property located at 14131 Beresford Road (the “Brilliant Property”).  Defendant Tyson Beem as Trustee of the Maximillion Trust dated February 11, 2013 (the “Trust”) owns the real property located at 14143 Beresford Road, Beverly Hills, California (the “Trust Property”). 

The properties are governed by the Mulholland Estates Homeowners Association, Inc.’s (“HOA”) Declaration of Covenants, Conditions and Restrictions (“Declaration” or “CC&R’s”) and Architectural Standards & Design Guidelines (“Design Guidelines”) (collectively, the “Governing Documents”).  Plaintiffs allege that certain trees on the Trust Property block their views and violate the CC&R’s and Design Guidelines.  Plaintiffs have also sued the HOA and other neighbors. 

The operative complaint alleges eight claims for: (1) breach of contract, (2) enforcement of equitable servitudes, (3) breach of the implied covenant of good faith and fair dealing, (4) breach of fiduciary duty, (5) nuisance, (6) negligence, (7) negligent misrepresentation and (8) declaratory relief.  All of causes of action are alleged against the Trust except for the fourth claim for breach of fiduciary duty.    

This hearing is on the Trust’s demurrer to the Complaint.  The Trust argues that (1) each of Plaintiffs’ causes of action fails because no provision in the Governing Documents states that homeowners have a right to unimpeded views, (2) Plaintiffs’ nuisance claim fails for the additional reason that under California law, landowners are not afforded any rights to views, and impeding the view of another landowner cannot constitute a nuisance, and (3) Plaintiffs’ negligence claim fails for the additional reason that the duty alleged to be breached is the same as under the contract claim, and a negligence claim cannot be based on a breach of contract.

MEET AND CONFER

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  Moving Defendants submit the Declaration of William Brody, which shows the parties met and conferred by phone on October 27, 2023, more than five days before the demurrer was filed, which satisfies the requirements of Section 430.41.

REQUEST FOR JUDICIAL NOTICE

The Trust requests judicial notice of (1) the Declaration of Covenants, Conditions & Restrictions for Mulholland Estates, and (2) the Mulholland Estates Homeowners Association, Inc.’s Architectural Standards & Design Guidelines.  The Court grants the request pursuant to Cal. Evid. Code §§ 452(h) and 453. 

LEGAL STANDARD

A demurrer tests the legal sufficiency of the allegations in a complaint.  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)        

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

DISCUSSION

            The Trust argues that Plaintiffs fail to cite any provision in the Governing Documents that gives them a right to a particular view.  The Court agrees.

            Plaintiffs’ entire complaint is based on allegations that the Governing Documents provide them a right to force removal of the Trust’s trees, or limit their height, because they obstruct Plaintiffs’ views.  But there is nothing in the Governing Documents that gives Plaintiffs a right to a particular view.

            Plaintiffs concede the Governing Documents do not “entitle them to a completely unobstructed view.”  They argue that the “basis of their claims is the unreasonable view obstruction….”  They also argue that they are entitled to some “meaningful degree of protection” of their viewshed.  But nothing in the Governing Documents states that homeowners are entitled to a “meaningful degree of protection” of their viewshed or that Plaintiffs’ views cannot be “unreasonably obstructed.”  Indeed, any such language would be too indefinite to be carried into effect because they cannot state what would constitute a breach.

Plaintiffs cite a number of provisions they argue support their position that they are entitled to a “reasonably” unobstructed views.  First, they cite Section 1.1 of the Guidelines which merely says the viewsheds are a concern of the Guidelines.  This section does not state a particular view is guaranteed.

Second, Plaintiffs point to Section 1.5.2 of the Design Guidelines.  That section states that certain lots, lots 3 through 11 “will be subject to special controls on height and bulk and rear yard structures.”  It does not specify what the controls will be, and therefore, does not mandate any obligations on the Trust.   

Third, Plaintiffs cite Section 2.5.1 of the Guidelines.  That section is part of what the Guidelines describe as a “planting philosophy” to be used in the development of landscaping plants being submitted for approval.  It notes that tall trees can be planted but should be done at “infrequent intervals” and “arranged” in a certain manner.  It sets forth guidelines of what should be approved for planting and installation—they do not give rights to homeowners whenever a view is obstructed.  They certainly do not state that “views cannot be unreasonably obstructed,” or that trees cannot exceed a height that in any way impedes another homeowner’s view.  In any event, the provision relates to new plantings.  The Trust’s landscaping has been in place for over 20 years.  (Compl. ¶ 27.) 

            Section 2.5.1 also states that “shrubs can be naturally topped.”  The language is not mandatory (i.e., it says “can” and not “must”), and in any event, the Complaint is about the Trust’s trees, not shrubs.  (Id. ¶¶ 27, 28)  Section 2.5.1 also requires “selected interior pruning during young growth and the pruning of heads are techniques to be employed regularly by Owners.”  This clause does not require removal or topping of trees (i.e., cutting off the tops of trees) if they reach a certain height. 

            Fifth, Plaintiffs cite to Section 2.5.3 which states “on-lot maintenance shall be performed on a weekly basis and shall include: trimming and cutting lawns, pruning shrubs and trees that affect viewsheds of others, removal of dead or dying shrubs, removal of all weeds, and cleaning of all drains to protect slopes.”  This section relates to the pruning of trees, not their removal or topping, and in any event, Plaintiffs allege the Trust does trim its palm trees.  (Compl. ¶39.)   

            In sum, none of the provisions Plaintiffs rely on say Plaintiffs are entitled to a “meaningful degree of protection” of their viewshed or that Plaintiffs’ views cannot be “unreasonably obstructed.”  When the Guidelines seek to specify a particular obligation, they do just that in clear language.  For instance, they contain specific limitations on building height, list specific species of trees that cannot be planted and identify specific structures that can or cannot be built in certain locations.  (Ex. 2 to RJN at 2.2, 2.6.2, 2.6.4.)  These restrictions clearly show the Design Committee knew how to impose limitations, and they chose not to require that trees must be topped or removed if they reach a height that comes into view of another homeowner. 

Accordingly, the Court sustains the Trust’s demurrer.  Also, the Court sustains the demurrer without leave to amend.  While leave to amend should be liberally granted, Plaintiffs have the burden to show that an amendment could fix the defects in their Complaint.  (Blank, 39 Cal.3d at 318.)  The Governing Documents do not provide Plaintiffs with a right to a view, and Plaintiffs cannot amend their Complaint to allege that they do.   Given this ruling, the Court declines to consider other arguments raised in the demurrer. 

CONCLUSION

For the foregoing reasons, the Court SUSTAINS the Trust’s demurrer without leave to amend. 

DATED:  April 19, 2024                                                       ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court