Judge Ronald F. Frank, Case Number: YC033114, Date: 2023-11-01 Tentative Ruling

Judge: Ronald F. Frank, Case: YC033114, Date: 2023-11-01 Tentative Ruling

Case Number: YC033114 Hearing Date: March 21, 2024 Dept: 8

Tentative Ruling

HEARING DATE: March 21, 2024

CASE NUMBER: YC033114

CASE NAME: Palos Verdes Homes Association v. David Goldhammer

MOVING PARTY: Plaintiffs-in-Intervention, William Regan and Desiree Myers

RESPONDING PARTY: Defendant, David Avedon (formerly David Goldhammer)

TRIAL DATE: Not Set.

DISPOSED DATE: September 30, 1999

MOTION:¿ (1) Motion for Contempt Against Defendant, Davide Avedon

(2) Issuance of a Permanent Injunction

Tentative Rulings: (1) CONTINUE

I. BACKGROUND¿

A. Factual¿

This action was filed on August 31, 1998 and involves a dispute between two property owners living in Palos Verdes Estates. Plaintiffs in intervention contend that Defendant, Avedon’s violation of the view has already been repeatedly established by prior Court rulings. Plaintiffs in intervention assert that this case is in dire need of case management due to defendant Avedon’s repeated and continued non-compliance with court orders to keep his vegetation trimmed. Plaintiffs in Intervention note that Court orders and arbitration awards issued over the past two decades by Judges Stuart Rice, Andrew Kauffman, Gregory O’Brien, Deidre Hill and others have been routinely violated. Plaintiffs in Intervention note that their failure to enforce these orders is hampered by Defendant Avedon’s in pro per status and failure to communicate.

Based on all of this, Plaintiffs in Intervention contend that they now seek an order setting an Order to Show Cause re Avedon’s contempt of these past orders. Further, in addition to seeking enforcement of past enforcement regarding existing foliage, the parties are in need of a permanent injunction against Avedon’s planting new vegetation following the Court of Appeal’s affirmance of Judge Hill’s preliminary injunction finding such planned vegetation would block Plaintiffs in Interventions’ view.

B. Procedural

This is not the first time this motion has come on this Court’s calendar. On September 5, 2023, Plaintiffs in Intervention, William Regan and Desiree Myers filed a Motion for Contempt against Defendant, David Avedon and for Issuance of a Permanent Injunction. On September 19, 2023, Defendant filed an opposition brief. On October 25, 2023, Plaintiffs filed a reply brief.

Subsequently, on November 30, 2023, the Court and counsel conferred regarding a prospective date for the Court and counsel to conduct a site inspection of the neighboring properties. The Site Inspection was scheduled for January 12, 2024 at 3:30PM. The Court and both counsel attended the inspection of both properties where the Court had the opportunity to observe and take note of the view lines, conditions of growth, and to discuss various issues with the parties on site.

On February 16, 2024, Plaintiffs in Intervention, William Regan and Desiree Myers filed a Motion for Contempt against Defendant, David Avedon and for Issuance of a Permanent Injunction again. On March 8, 2024, Defendant filed an opposition brief. On March 14, 2024, Plaintiffs in intervention filed a reply brief.

¿II. ANALYSIS ¿

After the Court’s November 1, 2023 hearing on a previous motion, the parties agreed to a site inspection by the Court, and said site inspection was held on January 12, 2024. Plaintiffs in Intervention contend that the site inspection revealed the following:

1. The Driveway Hedge. The hedge growing along Goldhammer/Avedon’s driveway is unquestionably higher than the 12-foot height limit imposed by Judge Gregory O’Brien and confirmed by Judge Andrew Kauffman with prior Contempt Order enforcement by Judge Stuart Rice. The Court did not need a measuring stick to confirm that violation. In many places the hedge is higher than 20 feet and certainly not 12 feet from “grade” as required by Judge Rice. The breadth of the hedge has also now grown substantially, many feet covering large portions Goldhammer/Avedon’s driveway in conflict with Judge Rice’s order. The hedge planted at the parties’ joint property line also well exceeded the 12-foot height limit.

2. The Olive Tree. The prior expert arborist recommended that the olive tree in Goldhammer/Avedon’s back yard be laced and pruned back to the bottom edge of the Goldhammer/Avedon roofline. The site inspection revealed that the olive tree has not been laced and is beyond the roofline. The prior expert appointed by the Court recommended that the Olive tree be maintained no higher than 29-30 feet and an 18 foot radius. (Regan Decl., ¶ 19b, Ex. H.) The inspection revealed those limits have not been adhered to.

3. The Queen Palms. The queen palms are presently in compliance because the dead and dying fronds were recently removed in response to the 2023 Court filing by Regan.

Plaintiffs in Intervention assert that because of the prior orders by Judge Stuart Rice, Andrew Kauffman, Gregory O’Brien and Diedre Hill, it would be appropriate for this Court to conclude: (1) The prior orders are valid; (2) Goldhammer/Avedon has the ability to comply with the orders (i.e., hire a trimmer); and (3) Goldhammer/Avedon has willfully disobeyed, since 2011, prior court orders by failing to trim his vegetation. In other words, Plaintiffs in Intervention contend that as to the existing vegetation, this Court should find Goldhammer/Avedon in contempt. (Code of Civ. Proc., § 1209, subd.(a)5; Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1548 [“willful failure to comply with an order of the court constitutes contempt”].) Plaintiffs in Intervention also contend that Goldhammer/Avedon’s apparent defense to the contempt finding is an attempt to relitigate whether the view impairment is substantial or whether his privacy needs outweigh Regan’s view rights. However, Plaintiffs in Intervention assert that these subjective determinations were already made by Judge Stuart Rice, Anrew Kauffman, Gregory O’Brien and Deidre Hill. Thus, Plaintiff in Intervention argues the only thing for this Court to do is to enforce the objective criteria for compliance with the prior orders.

In Avedon’s opposition, he argues that The Palm Trees are and have been in compliance with Court orders, as conceded to by Plaintiff in Intervention’s motion. As to the Heritage Olive Tree, Avedon also argues that this is in compliance with Court Orders, noting that the Settlement Agreement allowed Avedon to maintain the Olive tree at its then height. Avedon contends that The Settlement Agreement allowed Avedon to maintain the Olive Tree at its then height, and that there is no evidence that he has not done so. The Court finds that this is a slight misinterpretation of the Settlement Agreement. The Settlement Agreement states that:

“Goldhammer will retain an ISA certified tree trimmer who will trim the crown of the Olive Tree so that no part exceeds in height a horizontal line parallel to the ground and 5 feet below the present crown of the Olive Tree. Goldhammer’s ISA certified tree trimmer shall trim the sides, remove any deadwood and lace the Olive Tree as the ISA certified tree trimmer feels is appropriate. The trimming shall be done as soon as in the opinion of the tree trimer it can be done without endangering the Olive Tree but in no event later than November 30, 1999. After the ISA certified tree trimmer trims the Olive Tree, he shall measure the height of the Olive Tre to its crown, and that measurement shall be the “Guage Measurement” for purposes of this Agreement. This Guage Measurement shall be verified by a representative of Regan. Once a year thereafter, Goldhammer will cut back and lace (as the trimmer feels is appropriate) the Olive Tree to the Guage Measurement. The yearly trimmings to the Guage Measurement will be verified by a representative that is acceptable to both Regan and Goldhammer or alternatively by a representative of Regan and a representative of Goldhammer.”

(Declaration of William Regan, Exhibit B, “Settlement Agreement”, para. 1(B).) As such, the “Guage Measurement” was not at the height the olive tree was at then, it was the height that the ISA certified tree trimmer would have cut the tree to in order to meet the measurement requirements.

The Court is inclined to continue the hearing. At the site inspection the Court encouraged a settled resolution and apparently at least one side was willing to discuss a global settlement. The Court observed what it observed at the properties and will apply prior orders and agreements of the parties regardless of any claimed subsequent municipal legislation that was passed only recently, long after the pendency of this suit and prior court orders. But if the parties cannot decide their own fate, the Court will issue a tentative ruling on the record presented to it by the date to be agreed for a continuance.