Judge Elaine W. Mandel, Case Number: 20SMCV01557, Date: 2023-09-20 Tentative Ruling

Judge: Elaine W. Mandel, Case: 20SMCV01557, Date: 2023-09-20 Tentative Ruling

Case Number: 20SMCV01557 Hearing Date: February 15, 2024 Dept: P

Tentative Ruling

Mardirossian v. Howarth, Case No. 20SMCV01557

Hearing Date February 15, 2023

Cross-Defendant Mardirossian’s Motion for Summary Adjudication/Judgment

Cross-complainant Howarth’s Third Amended Cross-Complaint (TACC) alleges cross-defendant Mardirossian erected a chain link fence on his property that encroaches on Howarth’s property. It also alleges Mardirossian built a tennis court that violates a Coastal Development Permit and the ten-foot setback requirement at the property boundary and interferes with Howarth’s quiet enjoyment of his property. Finally, Howarth alleges Mardirossian failed to construct a solid masonry wall to mitigate noise from the tennis court as required by the Coastal Development Permit. Mardirossian moves for summary judgment and/or adjudication.

Evidentiary Objections

Howarth Objections 1-3 SUSTAINED (improper legal opinion); objection 4 SUSTAINED as to communications with representatives of the state (hearsay) OVERRULED as to the rest of the sentence; objection 5 OVERRULED; objection 6 SUSTAINED (lack of foundation); objection 7 OVERRULED; objection 8 OVERRULED; objection 9 SUSTAINED improper opinion; objections 10-12 OVERRULED.

Mardirossian Objections: Objections 1, 2 OVERRULED; objections 3-4 SUSTAINED (lack of personal knowledge, hearsay); objections 5-7 OVERRULED; objections 8-15 OVERRULED.

Private Nuisance – Setback

The private nuisance cause of action alleges “the tennis court improvements on the Mardirossian property are less than 10 feet from the Boundary Line and violate the ten-foot setback requirement.” TACC ¶25.

Mardirossian argues this claim fails because there is no private right of action to enforce violation of a side yard setback. Mardirossian cites Taliaferro v. Salyer, which held “[e]ven if defendant had constructed her building within the setback lines required by ordinance (if there be any such requirements) . . . any violation by defendant of the ordinance in this respect could not possibly give rise to any cause of action to plaintiff[.]” (1958) 162 Cal.App.2d 685, 691-692.

Salyer is narrower than Mardirossian argues. Plaintiff there alleged a neighbor built a structure within the setback lines required by a zoning ordinance. Plaintiff therein argued because the neighbor’s structure encroached on the setback, he was unable to fit into the gap between the properties and was unable to do repairs on his own structures. Plaintiff argued the setback ordinance created an easement, allowing him to enter into the setback area on defendant’s property to conduct such repairs. The court rejected plaintiff’s argument, finding the setback rule did not create such an easement. However, it did not go so far as to hold that no private action could ever lie for violation of a setback ordinance.

As Howarth is not claiming a de facto easement, Salyer is inapposite. Mardirossian provides no binding authority holding violation of a setback ordinance can never give rise to a private cause of action.

Howarth cites Homeowners’ Ass’n. v. Wesley Palms Retirement Community (1986) 178 Cal.App.3d 1147, 1152, for the proposition that “[t]he law allows a private individual to enjoin a zoning violation as a nuisance when the individual suffers a ‘special injury to himself in person or property of a character different in kind from that suffered by the general public[.]” The setback requirement here is a zoning rule, so under Wesley Palms, Howarth may pursue a nuisance cause of action arising out of its violation.

Mardirossian also argues this cause of action fails because in 1999, the City approved a variance reducing the setback requirement at the property’s edge from ten feet to five feet. Mardirossian Separate Statement of Material Facts (MSF) 1, exhibit 2. As Howarth correctly points out in opposition, the tennis court is on the northwest side of the Mardirossian property, but the 1999 variance allowed “a 5-foot setback along a portion of the northeastern side yard…” Howarth Separate Statement of Material Facts (HSF) 12. The 1999 variance does not apply to the portion of the property where the tennis court is located.

Finally, Mardirossian presents evidence that even if the tennis court improperly intrudes into the ten-foot setback area, the intrusion is de minimis and cannot support a nuisance claim. Mardirossian cites Howarth’s declaration filed in opposition to the prior MSJ, wherein Howarth states he did not discover the tennis court improvements were within the setback area until 2020, though construction was completed and approved twelve years earlier in 2008. Mardirossian Request for Judicial Notice 3, ¶7; MSF 38-39. Mardirossian argues, and the court agrees, a setback violation unnoticed for over a decade is unlikely to constitute an actionable nuisance.

Mardirossian’s de minimis argument is bolstered by Howarth’s admission that the offending portion of the tennis court is “8 feet, 9 inches from where the surveyor says my property line is,” rather than ten feet, as required by the setback ordinance. MSF 44.

The evidence is that Howarth’s nuisance cause of action is based on an improvement that fifteen inches from where it is supposed to be, at the back of Howarth’s property, up a steep hill from his house. This violation, by Howarth’s own admission, was unnoticed for over a decade.

An actionable claim for private nuisance requires a “substantial and unreasonable” interference with the “use and enjoyment of the land.” Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 270. Mardirossian’s evidence indicates no such interference exists. If the tennis court’s presence within the setback area caused a “substantial and unreasonable” interference, it would seem Howarth would have noticed it earlier. Further, it is difficult to argue an encroachment of fifteen inches into a setback area could meaningfully impede Howarth’s use and enjoyment of his property. Mardirossian meets his initial burden on summary judgment.

In opposition, Howarth argues the setback encroachment is not the sole basis of his first cause of action, stating the “improper construction and installation of the tennis court improvements” created a “noise nuisance.” The cause of action as pled does not mention any “noise nuisance,” only that the tennis court is “less than 10 feet from the Boundary Line and violate the ten-foot setback requirement.” TACC ¶10.

Even if the court were to assume the cause of action implicitly alleges a noise nuisance, it is unclear how moving the tennis court back fifteen inches to comply with the ten-foot setback requirement would meaningfully reduce the amount of noise reaching Howarth’s property. Howarth presents no evidence, expert or otherwise, on that issue.

The gravamen of the first cause of action is a setback violation. TACC 22-27. The evidence indicates the tennis court only minimally encroaches into the setback area, and Howarth was unaware of and unbothered by the encroachment (or any noise) for over a decade. Howarth presents no evidence regarding how the alleged setback encroachment substantially and unreasonably interferes with the use and enjoyment of his property. Howarth cannot prove a key element of private nuisance, so the cause of action fails. GRANTED.

Trespass and Ejectment

Both parties agree the allegedly encroaching chain link fence underlying these causes of action has been removed. Howarth agrees to dismiss the fence-based causes of action; the MSJ is MOOT as to these claims.

Negligence

To the extent this cause of action is based on a setback violation and/or the construction of a chain link fence, it fails for the reasons stated above. Howarth has not provided evidence he was damaged by the setback violation, and the parties agree the chain link fence was removed. Mardirossian correctly states the remainder of the negligence claim is based on his alleged failure to construct the six-foot wall referenced in the Coastal Development Permit and attached Mitigated Negative Declaration (MND). TACC ¶38.

The 2003 Coastal Development Permit incorporates a MND that states “[e]nvironmental impacts to the adjacent residences may result from project implementation due to tennis court noise. However, these potential impacts will be mitigated to a level of insignificance by the following measure: A 6-foot high solid masonry wall along the property lines adjacent to the tennis courts shall be constructed, if no such wall exists.” HSF Additional Facts 2.

Mardirossian argues all walls required by the Permit and MND have been built. He cites the City approval of plans for the tennis court, and the City’s “finaling” of the construction as evidence that construction conforms to all permits, including the MND wall requirement. MSF 32, 34, 41. He notes the plans approved by the City included a six-foot high fence, extending from an existing wall, constructed along the property line, and argues the fence fulfills the wall requirement. Mardirossian presents evidence that, as required by the permit, there is a ten-foot wall around the tennis court, rendering an additional six-foot wall superfluous. City approval of the tennis court construction plans and existence of a ten-foot wall around the court is sufficient to shift the burden.

In opposition, Howarth argues the wall is made of stucco, and Mardirossian admits there is no six-foot masonry wall on the property line. HSF 12, 25. This is conclusory. Howarth presents no evidence the stucco wall does not qualify as “masonry” within the meaning of the MND, nor does he present expert opinion to refute or undermine the City’s determination that the MND’s requirements are fulfilled by the stucco wall. Further, he presents no evidence that replacing the stucco wall with some other “masonry” wall would better prevent noise from reaching Howarth’s property. GRANTED.

Fifth through Eighth Causes of Action

These causes of action are all based on the same allegations as the nuisance and negligence causes of action, so summary judgment is appropriate for the reasons stated above. GRANTED.

Continuing Nuisance

This cause of action is based on the allegation that noise from the tennis court “substantially diminishes [Howarth’s] enjoyment” of his property. TACC ¶¶70-72.

Mardirossian argues Howarth cannot establish a substantial interference because he admitted at deposition he has not heard any noise from the tennis court in several years. MSF 54, exhibit 8. At deposition, when Howarth was asked “[w]hen’s the last time prior to today that you heard noise from the tennis court…?,” he responded “[i]t would have been some years ago . . . my best estimate would be more than four years.” Id. When asked “[s]o it could be more than six years?,” he stated “[t]hat’s also possible.” Id.

This is insufficient to carry Mardirossian’s initial summary judgment burden. The initial cross-complaint was filed February 11, 2018. The TACC relates back to that filing for statute of limitations purposes, since both are based on the alleged improper construction of tennis court improvements. Garrison v. Board of Directors (1995) 36 Cal.App.4th 1670, 1678. Nuisance is subject to a three-year statute of limitations. Cal. Code of Civ. Proc. §338(b).

Howarth testified he did not hear noise from the tennis court within the four-year period prior to the deposition, taken July 19, 2023. He did not testify there was no noise from the tennis court in the years before the cross-complaint was filed in 2018. While Howarth testified it may have been more than six years since he last heard noise from the tennis court, he did not state it had definitely been more than six years. There remains a triable issue of fact as to when Howarth last alleges a noise disturbance from the court. Howarth’s testimony, while certainly relevant to the measure of any potential damages, does not establish that there was no noise within the three-year period prior to filing of the cross-complaint. DENIED.