Judge: Mark A. Young, Case: 21SMCV01785, Date: 2023-02-21 Tentative Ruling

Case Number: 21SMCV01785    Hearing Date: February 21, 2023    Dept: M

CASE NAME:           Chan v. Tourtellotte, et al.

CASE NO.:                21SMCV01785

MOTION:                  Demurrer to the First Amended Complaint

HEARING DATE:   2/21/2023


Legal Standard


            A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)


            A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)


            “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)




Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration satisfies the meet and confer requirement. (Afifi Decl. ¶ 2.)




As set forth in the First Amended Complaint (FAC), Plaintiff owns real property located at 1150 Tellem Dr., Pacific Palisades. The Tourtellotte Defendants own interest in a neighboring real property located at 1140 Tellem Dr., which is immediately downhill from Plaintiff’s property. Defendants recently renovated their home and raised their roof line by several feet, and “intend” to build a privacy wall which Plaintiff believes may exceed the 3-foot height limitation. Plaintiff contends that this construction interferes with her view from her property, and thus violates the CC&Rs which run with both properties. On these facts, Plaintiff’s FAC alleges five causes of action for 1) breach of the CC&Rs, 2) public nuisance, 3) private nuisance, 4) negligence, and 5) intentional infliction of emotional distress. Defendants argue that recent case law conclusively decides this issue against Plaintiff. Therefore, a restrictive covenant found in the applicable CC&Rs forms the basis of each claim alleged by the FAC. As such, the entire case turns on an issue of contract interpretation.


Contract interpretation, even though it involves what might properly be called questions of fact, is essentially a judicial function, exercised by the court pursuant to accepted canons of interpretation, unless the interpretation turns on the credibility of extrinsic evidence. (Sanchez v. Bally’s Total Fitness Corporation (1998) 68 Cal.App.4th 62, 69.)  Contract interpretation involves a triable issue of fact only if the court makes three determinations: (1) The wording of the instrument is reasonably susceptible of the interpretation urged by the proponent of the extrinsic evidence; (2) The extrinsic evidence is relevant to prove the proposed meaning; (3) The credibility of the proponent’s parol evidence is disputed. (Equitable Life Assurance Society v. Berry (1989) 212 Cal.App.3d 832, 838.)


“‘Where a complaint is based on a written contract which it sets out in full, a general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.’” (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 229.) “‘[W]here an ambiguous contract is the basis of an action, it is proper, if not essential, for a plaintiff to allege its own construction of the agreement. So long as the pleading does not place a clearly erroneous construction upon the provisions of the contract, in passing upon the sufficiency of the complaint, we must accept as correct plaintiff’s allegations as to the meaning of the agreement.’” (Id.) If the court finds the parol evidence allegations are insufficient to support an interpretation to which the contract is reasonably susceptible, a demurrer is properly sustained. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1127-28.) 


Generally, a landowner has no right to an unobstructed view over adjoining property, and “ ‘the law is reluctant to imply such a right.’ ” (Boxer v. City of Beverly Hills (2016) 246 Cal.App.4th 1212, 1219.) CC&Rs may provide for such a right, but “restrictive covenants are construed strictly against the person seeking to enforce them, and any doubt will be resolved in favor of the free use of land.” (White v. Dorfman (1981) 116 Cal.App.3d 892, 897.) The Court has a “duty to interpret the deed restriction ‘in a way that is both reasonable and carries out the intended purpose of the contract.’ ” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1378.)


The parties identify a split in authority regarding the interpretation of the relevant provisions of these specific CC&Rs. (Eisen v. Tavangarian (2019) 36 Cal.App.5th 626; Zabrucky v. McAdams (2005) 129 Cal.App.4th 618.) In these two cases, the Seventh Division was confronted with the Marquez Knolls CC&Rs. Critically, the cases came to different conclusions regarding paragraph 11 and its applicability to renovations/remodeling in that community.  Zabrucky, which is the earlier case, found that the plain language of paragraph 11’s restriction prohibits the erection of "any structures" which obstruct views on an adjoining property, including the erection of dwelling additions. (Id. at 624-629.) The Zabrucky court also found that paragraph 11 forbids “unreasonable” obstructions, rather than all obstructions.


Conversely, in a decision 14 years later, Eisen found that paragraph 11 of the CC&Rs pertains only to landscaping structures such as fences, but not to renovations or remodels of dwelling structures, and that it contains no reasonableness requirement. (Eisen, supra, 36 Cal.App.5th at 643-646.) Ultimately, the Eisen court held that neither Paragraph 1 nor Paragraph 11 of the CC&R's restricts renovations or alterations to a previously approved residence, and paragraph 2 (which does not apply to residential alterations) expired.


There is no reasonable dispute that the instant case has any material distinguishing factors from Eisen or Zabrucky. Like both of those cases, this case regards Defendants’ attempt to remodel/renovate their dwelling, which Plaintiff challenges by invoking paragraphs 1-3 and 11 of the same Marquez Knolls CC&Rs. Here, the FAC provides the relevant CC&Rs, executed by the developers Melvin Lachman and Earl Lachman (Declarants). (FAC, ¶10, Exs. E & F.) The FAC asserts that the CC&Rs create a right to preserve the view from each parcel by preventing any and all alterations to buildings that would detract from the view of another parcel. (Id.)  Relevantly, Paragraph 11 provides:


(11) No fences or hedges exceeding three feet in height shall be erected or permitted to remain between the street and the front set-back line nor shall any tree, shrub or other landscaping be planted or any structures erected that may at present or in the future obstruct the view from any other parcel, and the right of entry reserved by the Declarants to trim any tree obstructing the view of any parcel.


(Emphasis Added.)


Given the above contradictory holdings, the Court has the discretion to decide which case law would control in this matter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 456 [“the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions”].) The Court concludes that it will follow Eisen. The Eisen decision contains a fully reasoned interpretation of the CC&Rs, which follows the general principals of law, and the in-context meaning of the CC&Rs to a nearly identical dispute.  Eisen independently analyzed the at-issue CC&R paragraphs and found that “the Zabrucky majority misread paragraph 11” by interpreting terms in isolation and without their context. (Id.)  Eisen’s robust analysis intepretes the scope of paragraph 11’s restrictions on structures in context. Notably, alterations to existing residences were expressly regulated by paragraph 2, the terms of which have expired. Eisen’s analysis also follows the accepted restrictive view of CC&Rs. (See Zabrucky, supra, 129 Cal.App.4th at 622.) In comparison, Zabrucky re-wrote the CC&Rs by inserting an unsupported reasonableness requirement. As the Eisen court found, this “reasonableness” requirement is simply not present in the CC&Rs, which puts Zabrucky’s analysis and conclusions further into question.


 Plaintiff contends the Court should follow the pled intention of the declarants and interpret the CC&Rs as providing a private right to enforce this general intent. The FAC alleges that the purpose of the CC&Rs, at paragraphs 1, 2, 3, 11, and 12, was to effectuate the intent of the Declarants to preserve homeowners’ views. Due to this intent, Plaintiff argues that the Court must find that “the view obstruction/detraction language [] exist[s] independent of the Declarants, the Architectural Committee and the Homeowner’s Association, placing enforcement of the view preservation language in the hands of the homeowners who must file suit to enjoin the erection or alteration of a building that detracts or obstructs their view.” (FAC ¶¶ 23-28.) However, Plaintiff’s legal conclusions must be disregarded regarding the interpretation of the CC&Rs. Critically, Plaintiff neither alleges parol evidence which would support any specific interpretation of the term “structure” within paragraph 11, nor renewal of the Architectural Committee pursuant to paragraph 2. Instead, Plaintiff refers to the vague, generalized intent of the Declarants, as evidenced by the CC&Rs’ language. This does little to aid their preferred interpretation of the document.


Notably, Plaintiff’s contention that the Court should use the declarants’ intent to give the broadest possible meaning to the term “structure” would diverge from the presented caselaw. Notably, neither Eisen nor Zabrucky found any ambiguity in the CC&Rs which required extrinsic evidence to resolve. (Eisen, supra, 36 Cal. App. 5th at 752.) Both cases interpreted these CC&Rs as a matter of law. Given this lack of ambiguity, the Court will not hold that the wording is reasonably susceptible to the interpretation urged by Plaintiff. Further, if there is any ambiguity, this ambiguity must be construed in favor of the free use of land, and against the restrictive covenant. The Court, presented with the same CC&Rs here, must follow the controlling authority on this matter. As such, the alleged construction does not violate Paragraph 11. Under paragraphs 1-2, approval for renovations and alterations was no longer required after December 31, 1980.


Following the decision in Eisen, the subject paragraphs of the CC&Rs do not restrict renovating or altering existing residences, but only applies to landscaping features. Therefore, Plaintiff’s reliance on this paragraph of the CC&Rs would not support the five pled causes of action.


Accordingly, Defendants’ demurrer is SUSTAINED without leave to amend.  Defendants are ordered to prepare a proposed judgment.