Lingenbrink v. Del Rayo Estates
Adams Stirling PLC
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APPEAL from an order of the Superior Court of San Diego County, Super. Ct. No. 37-2014-00014860-CU-PT-CTL, Lisa Schall, Judge. Affirmed.

COUNSEL
Limandri & Jonna, Charles S. LiMandri and Teresa Mendoza for Defendant and Appellant.

Law Offices of Rodney L. Donohoo, Rodney L. Donohoo and Kevin T. Rhine for Plaintiff and Respondent.

OPINION
AARON, J.

Defendant homeowners' association seeks review of a judgment that, consistent with the association's governing documents, directs the association to require a nonparty homeowner in the planned development project to trim his trees so that they do not interfere with the plaintiff homeowner's westerly view to the ocean. We conclude that 1) substantial evidence supports the trial court's ruling that the homeowner timely filed this action; 2) the trial court did not err in interpreting or in reviewing the association's application of the relevant provision of the association's governing documents; and 3) the association's unsupported suggestion that the trial judge may have been disqualified from entering judgment is frivolous and, accordingly, presents no basis for relief on appeal. Accordingly, we affirm the judgment.

I.
FACTUAL AND PROCEDURAL BACKGROUND1

Del Rayo Estates is a common interest development in Rancho Santa Fe comprised of 18 large "high-end" homes built on 21 lots. It is a planned development project governed by an Amended Declaration of Covenants, Conditions and Restrictions (Declaration) of the Del Rayo Estates Homeowners Association (Association).2 The Association is a nonprofit mutual benefit corporation that manages the Del Rayo Estates. As applicable here, the Association is run by a three-member Board of Directors (Board) which also serves as its Architectural Review Committee (ARC).

Article III of the Declaration is entitled "Property Rights: Residential Area"; section 3.1 is entitled "Residential Area: Permitted Uses and Limitations"; and subsection 3.1.26 (§ 3.1.26) is entitled "Landscaping" and provides in relevant part:

No trees, hedges or other plant materials shall be so located or allowed to reach a size or height which will interfere with the view from any Lot and, in the event such trees, hedges or other plant materials do reach a height which interferes with the view from another Lot, then the Owner thereof shall cause such tree(s), hedge(s) or other plant material[(]s) to be trimmed or removed as necessary.3 (Italics added.)

The Petra Krismer Living Trust Dated April 7, 2011, owns the property at 14787 Lady's Secret Drive (Krismer Property). Lingenbrink is the trustee of the trust that owns the Krismer Property. Across the street to the west is the property at 14716 Lady's Secret Drive, which is owned by J. Douglas Pardee (Pardee Property). The Krismer Property and the Pardee Property are both located within Del Rayo Estates and, accordingly, are subject to the Declaration.

Lingenbrink has lived at the Krismer Property since 1991. Lingenbrink has developed between 50 and 60 homes in the Rancho Santa Fe area, including 11 in Del Rayo Estates, and view has "always been a consideration" in any of the properties he has purchased, "because view enhances the value." According to Lingenbrink, "premiere views are golf course views, mountain views, valley views, and distant blue water ocean views" — both during the day and at night. At the time he purchased the 11 lots in Del Rayo Estates, Lingenbrink selected the Krismer Property for his personal residence because of its superior views; the lot has the highest elevation in the development and has panoramic views — including a distant view of the Pacific Ocean to the horizon. The home on the Krismer Property has large panoramic seamless windows that were designed to take advantage of the westerly view toward the ocean.

In 1990, when Lingenbrink purchased the 11 lots in Del Rayo Estates, one lot had a completed house, two lots had houses that were under construction, and the remaining eight lots were undeveloped. The undeveloped lots had already been terraced — i.e., with pads for construction of large homes and graded with no vegetation whatsoever.

When Lingenbrink purchased the Krismer Property, the 13,000 square foot home on the lot was under construction, and the Pardee Property was a vacant lot. Even after construction of the residence on the Pardee Property in 1993 or 1994, at least 95 percent of the view from the Krismer Property remained unobstructed, and whatever obstruction existed was due solely to the one-story house that Pardee built.4 Everything changed, however, in the early 2000's, by which time the landscaping on the Pardee Property (approved in 1992)5 had grown and developed.

In February 2001, Lingenbrink wrote to the Association to advise that the trees and foliage on the Pardee Property had grown to a height such that they blocked the ocean view from the Krismer Property. Unrelated to this letter, Pardee had already begun the annual tree trimming on his property. In response to Lingenbrink's letter to the Association, the ARC later advised that, after reviewing the existing conditions, it found no violation of the Declaration.

The issue arose again almost two years later, and in November 2002, in response to another letter from Lingenbrink, the ARC investigated and wrote: "After careful review and consideration of your concerns, and balancing those against your neighbor, the ARC has decided that your view is not unreasonably impeded by the trees on [the] Pardee[ P]roperty." Also in response to Lingenbrink's letter and the ARC's investigation, Pardee again trimmed his trees.

The Declaration, which contains section 3.1.26, was recorded in July 1996 and replaced the original declaration of covenants, conditions and restrictions recorded in April 1986 (a copy of which is not in the record on appeal).

For the next many years, Pardee's annual tree trimming resolved any issues Lingenbrink had concerning interference with his westerly view.

In the fall of 2009, Pardee's trees again blocked the view from the Krismer Property, and Lingenbrink again contacted the Board. One of the Board members confirmed that some of Pardee's trees were "blocking the view from the Krismer residence." Accordingly, in October 2009, the Board sent Pardee a letter advising him that the trees on the southwest side of his property "have grown above a certain height and are now obstructing the view of your neighbor[] and are therefore in need of trimming," reminding Pardee that the Declaration "require[s] owners to keep their trees maintained below a height which interferes with the view from any Lot; in the event such trees grow above that certain height limit that causes the trees to interfere with the view from any Lot, the Owner shall have such trees trimmed or removed as necessary."

Pardee responded by retaining counsel who advised the Board of many reasons that Pardee objected to Lingenbrink's complaint, but added that Pardee would trim his trees in January (2010), as he had done in the past.

Within weeks of the January 2010 tree trimming at the Pardee Property, Lingenbrink wrote to counsel for the Association, advising that Pardee's trimming was insufficient. According to Lingenbrink, the January 2010 trimming was the same as the January 2009 trimming, and by March 2009 the trees had grown back so much that Lingenbrink's view was "totally gone." The Board inspected the view from the Krismer Property and the trees on the Pardee Property, and agreed that the trees on the Pardee Property obstructed the view from the Krismer Property.

In a February 2010 letter, the Board wrote to Pardee, advising him that its members had visited the Pardee Property and the Krismer Property. The Board reported that, despite the January 2010 tree trimming, there were trees on the Pardee Property "which obstruct a view corridor from the adjacent [Krismer P]roperty" and that "the height of some of these trees needs to be reduced significantly" in order to "restore the currently blocked view." The Board confirmed that "[t]his view is protected by the [Declaration]."

Pardee responded by requesting a meeting with the Board, which took place in March 2010. After that meeting, the ARC wrote to Lingenbrink in April 2010, advising him that its members had visited the Pardee Property and the Krismer Property after the January 2010 tree trimming on the Pardee Property. In direct contradiction to the Board's February 2010 letter to Pardee, the ARC's April 2010 letter to Lingenbrink stated: "After careful review and consideration of your concerns, and balancing those against your neighbors' concerns, the [ARC] has decided that your view is not unreasonably impeded by the trees on the Pardee[ P]roperty."6 The ARC explained that it "bases this decision on its site inspection, conversations with you and Mr. Pardee, and the decision rendered by the [ARC] on November 19, 2002[,] with respect to the same issue" — with no mention of the Board's October 2009 or February 2010 letter to Pardee or the conclusion in each of these two letters that Pardee would have to trim his trees because they were blocking a protected view from the Krismer Property.7

Approximately two years later, in June 2012, Lingenbrink's attorney wrote to the ARC, requesting that the Association enforce the Declaration — and in particular section 3.1.26 — "by taking the immediate and appropriate action to eliminate the interference of the views from [the] Krismer Property." Lingenbrink's June 2012 letter explained, as before, that "[t]hese views are being obstructed by trees located on the neighboring property owned by Mr. Pardee. . . ."

In a July 2012 letter, counsel for the Association responded. Counsel reviewed some of the prior history regarding the views from the Krismer Property and trees on the Pardee Property and advised that the Board had again visited the Krismer Property to view the trees to the west. Consistent with the ARC's April 2010 letter, the Board's July 2012 letter concluded: "After careful review and consideration of [your] concerns, and balancing those against Mr. Pardee's rights, the Board determined that [your] view is not unreasonably impeded by the trees on Mr. Pardee's property."8

In December 2013, Petra Krismer filed the underlying complaint against the Association, alleging causes of action for breach of the Association's governing documents (and requesting a mandatory injunction as the remedy) and declaratory relief. In an amended complaint filed in September 2014, Lingenbrink substituted in as the plaintiff, asserting the same claims and remedies against the Association.

Over the course of four days in December 2015, the superior court conducted a bench trial of the two claims in Lingenbrink's first amended complaint.

In a January 2016 statement of decision, the court found, in part, the following facts: The Krismer Property has "a panoramic view to the south," but "during a great part of the year the westerly or ocean view is blocked by foliage from at least the Pardee trees"; the loss of the view to the Krismer Property is significant, with experts valuing the loss at between $100,000 and $800,000;9 Lingenbrink first complained to the Association in 2001-2002 about the interference with the view due to the trees on the Pardee Property, and Pardee regularly trimmed his trees thereafter without a resulting view blockage until 2009; in 2009, Lingenbrink brought to the Association's attention the claim that the trees on the Pardee Property blocked the view from the Krismer Property; in response, the Association advised Pardee to trim his trees; Pardee trimmed his trees, but not enough, and in February 2010, the Board again requested that he trim his trees; two months later, in April 2010 the ARC decided that, "after `balancing the interests'" of Pardee and Lingenbrink, the trees on the Pardee Property did "not `unreasonably' interfere[] with" the view from the Krismer Property.10 (Italics added.)

Based on these findings, the statement of decision concluded, in part, that the language in section 3.1.26 is "unambiguous" and should be enforced. As such, the statement of decision continued, in the April 2010 letter to Lingenbrink, the Board erred in requiring that landscaping unreasonably interfere with a view before enforcing the restriction; and the Board "impermissibl[y]" balanced the interests of only Pardee and Lingenbrink "instead of the community as a whole."

In the statement of decision, the court next ruled against the Association on its affirmative defenses, as follows: The "judicial deference rule" did not apply to the interpretation of the unambiguous provision of the Declaration (§ 3.1.26); and the statute of limitations did not bar Lingenbrink's action, because the claims accrued in April 2010 when the Association changed its position after having sent its February 2010 letter (advising Pardee that his trees interfered with the view from the Krismer Property) and told Lingenbrink that the view from the Krismer Property was not "`unreasonably impede[d].'"

Finally, the statement of decision provided the following remedy: "A mandatory injunction is issued requiring [the Association] to enforce [section] 3.1.26 of the [Declaration] by requiring Mr. Pardee to trim his trees so that they do not interfere with [the Krismer Property's] westerly view."

The court entered a judgment in February 2016, and in April 2016 the Association timely appealed.11

II.
DISCUSSION

The trial court's judgment is "`presumed correct,' "and the Association (as the appellant) has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 564 (Denham).)

The Association raises two principal arguments on appeal. First, it contends that Lingenbrink so delayed in filing this action that the claims are time-barred under both the applicable statute of limitations and the doctrine of laches. Second, the Association contends that the trial court erred in not deferring to the Board's interpretation and application of section 3.1.26. We disagree. First, Lingenbrink timely filed this action based on the Association's actions in and after April 2010. Second, in applying section 3.1.26 to the landscaping on the Pardee Property in and after April 2010, the Association added terms and conditions that are not contained in the language of the applicable landscaping restrictions.

The Association raises a third, ancillary, argument. The Association suggests — without evidence or authority — that because the trial judge recused herself more than a month after entering the judgment, she "may have been disqualified from rendering judgment in this case." The Association then argues that this suggestion provides further support for reversing the judgment. It does not.

A. The Association Did Not Meet Its Burden of Establishing That the Time-Related Defenses Barred Lingenbrink's Action

On both legal (statute of limitations) and equitable (laches) grounds, the Association affirmatively pleaded that Lingenbrink's claims were time-barred. Thus, the Association had the burden of proving by a preponderance of the evidence each element associated with each affirmative defense. (Evid. Code, § 500; Samuels v. Mix (1999) 22 Cal.4th 1, 8 [statute of limitations]; Fountain Valley Regional Hospital & Medical Center v. Bontá (1999) 75 Cal.App.4th 316, 324 [laches].) The applicable statute of limitations is five years (Code Civ. Proc., § 336, subd. (b); Pacific Hills Homeowners Assn. v. Prun (2008) 160 Cal.App.4th 1557, 1563-1564 (Pacific Hills)), and laches requires a showing of unreasonable delay and either acquiescence in the act complained of or resulting prejudice to the defendant (Pacific Hills, at pp. 1564-1565).

On appeal, the Association contends that, because Lingenbrink first complained about the trees on the Pardee Property interfering with the view from the Krismer Property in 2001, but did not file suit until 2013, Lingenbrink's action was not timely filed. We disagree.

1. Statute of Limitations

Lingenbrink first complained in 2001. We agree with the Association that the statute of limitations to enforce a restriction like section 3.1.26 "`commences when a demand for performance is made.'" (Quoting from Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1387.) However, in its statement of decision, the trial court ruled that the statute of limitations did not bar Lingenbrink's claims, "because [Lingenbrink] is complaining about the [Association's] April 2010 decision that the trees did not `unreasonably impede' his view." (Italics added.) The evidence presented at trial supports this ruling.

In determining the sufficiency of the evidence, as an appellate court we "may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to [the respondent] must be accepted as true and conflicting evidence must be disregarded[,] `. . . indulging every legitimate inference which may be drawn from the evidence in [the respondent's] favor. . . .'" (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118.) The issue is not whether there is evidence in the record to support a different finding, but whether there is evidence that, if believed, would support the finding actually made by the trier of fact. (Pope v. Babcock (2014) 229 Cal.App.4th 1238, 1245 (Pope); Bowers v. Bernards (1984) 150 Cal.App.3d 870, 872-873 (Bowers).) As a corollary, even uncontradicted evidence in favor of the appellant does not automatically establish the fact for which the evidence was submitted. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 (Foreman).)

In 2001 the untrimmed trees on the Pardee Property did not affect the view from the Krismer Property. In 2001 and late 2002, the Board determined that Pardee's trees did not violate the Declaration. From at least 2002 forward, Pardee annually trimmed the trees on his property, usually in January. To suggest, as the Association does, that the statute of limitations began running in 2002 makes no sense. Under such an analysis, Lingenbrink would have had to file his action no later than 2007 — at a time when, as a result of Pardee's annual tree trimming program, the trees did not block the view, and the Association had not refused to enforce the Declaration.

The next time Lingenbrink asserted the existence of a view interference — and, thus, a potential violation of the Declaration — occurred in late 2009. At that time, the Board agreed with Lingenbrink and advised Pardee to trim the trees in order to comply with the Declaration.

Two months later, however, in April 2010 the Association first put Lingenbrink on notice that it did not intend to enforce section 3.1.26 (by not requiring Pardee to trim or remove trees so that they did not interfere with the view from the Krismer Property). Lingenbrink filed the present action in December 2013, which is less than four years after being told by the Association in April 2010 that it would not require Pardee to trim or remove trees.

Substantial evidence, therefore, supports the trial court's finding that the demand for performance that commenced the five-year limitation period in Code of Civil Procedure section 336, subdivision (b), occurred as of the April 2010 date of the Association's letter to Lingenbrink. Accordingly, the trial court did not err in concluding that the statute of limitations did not bar Lingenbrink's claims.

2. Laches

The Association requested findings as to whether the doctrine of laches precluded Lingenbrink's claims. However, the trial court did not discuss the affirmative defense of laches in its statement of decision. Because the Association did not bring to the court's attention that the statement of decision failed to address the issue, the Association has waived any defects in the statement of decision. (Code Civ. Proc., § 634; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134 (Arceneaux).) Accordingly, we will apply the doctrine of implied findings (Arceneaux, at p. 1134), pursuant to which we assume that the trial court made findings to support the conclusion that laches did not bar Lingenbrink's claims and must affirm unless the record does not contain substantial evidence to support the findings (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793 (Michael U.)).

In its appellate briefing, however, the Association did not undertake a substantial evidence analysis of the evidence in support of the implied findings necessary to conclude that the doctrine of laches did not preclude Lingenbrink's claims. To the contrary, the Association argued only why the evidence in the record supports findings which would lead to the conclusion that laches barred Lingenbrink's action. Accordingly, the Association has forfeited consideration of this issue on appeal. (Foreman, supra, 3 Cal.3d at p. 881; Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218 [Unless the "party who challenges the sufficiency of the evidence to support a finding . . . set[s] forth, discuss[es], and analyze[s] all the evidence on that point, both favorable and unfavorable," "we deem the issue waived."].)

In any event, even if we were to consider the merits of the Association's argument, the result would be no different. The premise of the Association's contention (that laches precludes Lingenbrink's claims) is that "Lingenbrink delayed bringing suit for over 12 years from the time he first complained that the Pardee trees were obstructing his view." Since we have determined that substantial evidence supports the findings necessary to conclude that Lingenbrink filed this action within four years of demanding the performance by the Association that he seeks in this action (see pt. II.A.1., ante, the 12-year delay claimed by the Association is unsupported by the evidence; and the Association does not argue that a four-year delay is unreasonable as a matter of law. In addition, the Association does not argue that it was prejudiced during this time or that Lingenbrink acquiesced during these four years (nor could it, since Lingenbrink's attorney wrote to the ARC in June 2012) — either of which is a required showing for laches. (Pacific Hills, supra, 160 Cal.App.4th at pp. 1564-1565.)

Accordingly, the trial court did not err in declining to apply the defense of laches to bar Lingenbrink's claims.

B. The Trial Court Did Not Err Either in Interpreting Section 3.1.26 or in Reviewing the Association's April 2010 Application of Section 3.1.26

The language at issue in this appeal is found in section 3.1.26 (entitled "Landscaping") of the Declaration and provides in relevant part:

No trees, hedges or other plant materials shall be so located or allowed to reach a size or height which will interfere with the view from any Lot and, in the event such trees, hedges or other plant materials do reach a height which interferes with the view from another Lot, then the Owner thereof shall cause such tree(s), hedge(s) or other plant material[(]s) to be trimmed or removed as necessary. (Italics added.)

In its statement of decision, the trial court ruled that this language is unambiguous and reflects the "intention to protect the views by requiring the offending trees, etc.[,] to be trimmed." The court accordingly ruled that the Association impermissibly limited the application of section 3.1.26 only to a view that is not "`unreasonably'" impeded by the trees.12 (Italics added.) The court further ruled that, in reaching this determination, the Association impermissibly balanced the interests of only Lingenbrink and Pardee rather than the interests of the community as a whole.

The Association argues that the trial court erred in failing to defer to the Board's decision regarding the trees on the Pardee Property — and, in particular, the Board's application of section 3.1.26 to the trees' interference with the view from the Krismer Property. The judicial deference rule is an adaptation of the business judgment rule (applicable to decisions by directors of corporations) to the discretionary decisions of the directors of a planned development like Del Rayo Estates:

[W]here a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development's common areas, courts should defer to the board's authority and presumed expertise. (Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 265 (Lamden).)

We disagree with the Association's argument and the Association's insistence that the rule of judicial deference requires a different outcome in this case.

1. Interpretation of Section 3.1.26

We review de novo the interpretation of the Declaration and its restrictions. (Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111, 1121 (Ekstrom); Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 974.)

Courts construe the governing documents of a common interest development "according to the usual rules for the interpretation of contracts generally, with a view toward enforcing the reasonable intent of the parties." (Harvey v. Landing Homeowners Assn. (2008) 162 Cal.App.4th 809, 817; accord, Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 381 (Nahrstedt); Richeson v. Helal (2007) 158 Cal.App.4th 268, 276 ["interpretation of a restrictive covenant is governed by contract principles"].) These usual rules include:

The mutual intention of the contracting parties at the time the contract was formed governs. (Civ. Code, § 1636; Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524.) We ascertain that intention solely from the written contract, if possible, but also consider the circumstances under which the contract was made and the matter to which it relates. (Civ. Code, §§ 1639, 1647; Hess, supra, at p. 524.) We consider the contract as a whole and construe the language in context, rather than interpret a provision in isolation. (Civ. Code, § 1641.) We interpret words in a contract in accordance with their ordinary and popular sense, unless the words are used in a technical sense or a special meaning is given to them by usage. (Id., § 1644.) If contractual language is clear and explicit and does not involve an absurdity, the plain meaning governs. (Id., § 1638.)

(Westrec Marina Management, Inc. v. Arrowood Indemnity Co. (2008) 163 Cal.App.4th 1387, 1392, quoted in Starlight Ridge South Homeowners Assn. v. Hunter-Bloor (2009) 177 Cal.App.4th 440, 447 (Starlight Ridge).)

We, like the trial court, have little difficulty with the plain meaning of the words in section 3.1.26's clauses "interfere with the view" from any lot or "interferes with the view" from another lot. A "view" is "what is revealed to the vision or can usu[ally] be seen " or the "extent or range of vision: sight ." (Webster's 3d New Internat. Dict. (2002) p. 2551, col. 2.) To "interfere" is "to run into another or each other: intersect." (Id. at p. 1178, col. 2.) Thus, if what could otherwise be seen from the Krismer Property is intersected by trees on the Pardee Property, then the restrictions of section 3.1.26 are triggered — and the trees on the Pardee Property must be "trimmed or removed as necessary" according to section 3.1.26.

This interpretation is consistent with the mutual intention of the contracting parties when the Declaration was formed. (Civ. Code, § 1636; see Nahrstedt, supra, 8 Cal.4th at p. 381 ["courts try `to effectuate the legitimate desires of the covenanting parties'"]; see also Starlight Ridge, supra, 177 Cal.App.4th at pp. 451-452.) The Declaration, which contains section 3.1.26, was recorded in 1996 — by which time lots had been purchased, homes constructed and landscaping installed in Del Rayo Estates. For example, at that time, Lingenbrink had lived at the Krismer Property for approximately five years, the landscaping on the Pardee Property had been approved for approximately four years, and the construction of the house on the Pardee Property had been completed for approximately three years. Thus, as applicable to the present dispute, at the time the contract was formed the Association agreed and knew it was obligated to ensure both (1) that any existing or future landscaping on the Pardee Property was not "allowed to reach a size or height which will interfere with the view from" the Krismer Property, and (2) that if any such landscaping ever "interferes with the view from" the Krismer Property, then the owner of the Pardee Property "shall cause such [landscaping] to be trimmed or removed as necessary."13

If, in 1996, the Association had intended only that landscaping "not unreasonably imped[e]" a neighbor's view — as the Association interpreted section 3.1.26 in April 2010 (italics added) — then the Association could easily have drafted the governing documents to provide that the interference with the neighbor's view be unreasonable before the homeowner's trees would have to be "trimmed or removed as necessary." Instead, given the express language of section 3.1.26, the Association intended only that a homeowner's landscaping not interfere — without qualification — with any neighbor's view.

We decline the Association's invitation to read into section 3.1.26 a requirement that, before vegetation must be "trimmed or removed," the vegetation must not unreasonably" interfere with the view from any Lot." The language in section 3.1.26 is not susceptible to such an interpretation, and the authority on which the Association relies, Zabrucky v. McAdams (2005) 129 Cal.App.4th 618, does not suggest otherwise. In Zabrucky, paragraph 11 of the applicable covenants, conditions and restrictions (Paragraph 11) provided that no "`tree, shrub, or other landscaping [shall] be planted or any structures erected that may at present or in the future obstruct the view from any other lot.'" (Id. at p. 620.) The issue was whether a proposed addition to an existing residence qualified as any structure subject to the view restriction. (Id. at pp. 619-620.) On appeal, the court first interpreted that language according to its plain meaning: "So the plain language of the [P]aragraph 11 restriction prohibits the erection of `any structures' which obstruct views on an adjoining property." (Id. at p. 628.) Given this plain meaning interpretation, the court acknowledged that its literal application would be unreasonable, in that it would prohibit the construction of almost any structure. (Id. at p. 629.) Accordingly, the Zabrucky court ruled that "it would be in keeping with the intent of the drafters of the CC&R[']s to read into [P]aragraph 11 a provision that the view may not be unreasonably obstructed. . . ." (Id. at p. 629.) Like Zabrucky, we, too, had little difficulty interpreting the restriction based on its plain meaning. (See ante.) Unlike Zabrucky, the restriction at issue in this appeal does not affect structures — the only portion of Paragraph 11 that the Zabrucky court deemed unreasonable under the plain meaning interpretation.

The Association next argues that, without a requirement that the view from the Krismer Property be unreasonably obstructed, "Pardee will be forced to remove or top all 44 of those trees, virtually denuding his property and/or populating it with mutilated trunks." This possibility does not assist in interpreting section 3.1.26. Although we do not know what the requirements or restrictions were at the time the Association approved the landscaping for the Pardee Property in the early 1990's, we do know that both the Association and Pardee were aware of the trees on the Pardee Property at the time the Declaration (which contains § 3.1.26) was recorded in 1996, and the Declaration contains no language to "grandfather in" some or all of the existing vegetation.

The Association suggests that the word "view" is ambiguous because at various times Lingenbrink has asserted an entitlement to different views. Even if we were to assume that the word "view" is ambiguous, however, the Association has not offered any parol evidence that would support an interpretation that, in 1996, the parties to the Declaration intended to preclude only vegetation that unreasonably interfered with a neighbor's view. To the contrary, as recently as February 2010, in its letter to Pardee, the Association did not interpret section 3.1.26 as requiring an unreasonable interference with the view from the Krismer Property; rather, the Association advised Pardee to trim his trees based on an interpretation of the Declaration that protected an unobstructed view corridor from the Krismer Property.

To the extent the Association's brief can be read to suggest that the rule of judicial deference applies to the Association's interpretation of the Declaration (as opposed to the Association's exercise of discretion under the Declaration), we disagree. The judicial deference rule is an affirmative defense (to a claim based on a board's exercise of discretion under the governing documents), not a standard used in appellate review. In Ekstrom, the court was faced with a similar situation — namely, an association's decision whether to enforce a restriction based on the association's interpretation of the restriction. (Ekstrom, supra, 168 Cal.App.4th at p. 1121.) In rejecting the association's argument that the judicial deference rule "embodies the proper standard of judicial review," the court explained: "Just as the corporate business judgment rule" is an affirmative defense, "so too is the rule of judicial deference to decisions of homeowner association boards articulated in Lamden." (Id. at p. 1123; accord, Affan v. Portofino Cove Homeowners Assn. (2010) 189 Cal.App.4th 930, 940 (Affan) ["the judicial deference rule is an affirmative defense"]; see pt. II.B.2., post.) Stated differently, the affirmative defense of judicial deference is not an aid in the interpretation of a writing.

In short, the rule of judicial deference does not apply to an association board's improper construction of the governing documents. (See Dover Village Assn. v. Jennison (2010) 191 Cal.App.4th 123, 130.) There is "an obvious difference" between a legal issue, which courts independently decide, and an exercise of discretion, to which courts may defer. (Ibid.) In the language of the Lamden opinion, the trial court properly declined to defer to the Association's interpretation of the Declaration — as do we on appeal — because the interpretation of governing documents does not involve an association's "exercise[ of] discretion within the scope of its authority . . . to select among means for discharging an obligation." (Lamden, supra, 21 Cal.4th at p. 265.)

For these reasons, based on our independent review, the trial court did not err in interpreting section 3.1.26 by applying its plain meaning: If one property owner's trees intersect with what otherwise could usually have been seen from the neighbor's property, then the trees on the first property must be trimmed or removed, as necessary.

2. Application of Section 3.1.2614

In its April 2010 letter to Lingenbrink, the Association advised Lingenbrink that, based on "balancing [his concerns] against [Pardee's] concerns," the view from the Krismer Property was "not unreasonably impeded by the trees on the Pardee[ P]roperty." (Italics added.) The trial court ruled that, in so advising Lingenbrink, the Board improperly applied the language of section 3.1.26, on the following grounds: (1) section 3.1.26 does not require that the trees' interference with the view be unreasonable before the trees must be trimmed or removed; and (2) section 3.1.26 does not allow the Board to balance Pardee's concerns in deciding the extent of the trees' interference with the view.

The Association insists that the trial court erred by not deferring to the Association's application of section 3.1.26. Because the rule of judicial deference is an affirmative defense (Affan, supra, 189 Cal.App.4th at p. 940), the Association (as the defendant in the trial court) had the burden of establishing the requisite elements for applying the rule in the trial court (id. at p. 941; see Evid. Code, § 500). As the appellant in this court, the Association has the burden of establishing trial court error in not applying the defense. (Denham, supra, 2 Cal.3d at p. 564.) Once again, the elements of this affirmative defense are: (1) an association board's "exercise[ of] discretion within the scope of its authority under relevant statutes [and governing documents]"; (2) "upon reasonable investigation"; (3) "in good faith"; and (4) "with regard for the best interests of the community association and its members." (Lamden, supra, 21 Cal.4th at p. 265.)

Like the laches issue, because the Association did not object to the lack of findings in the statement of decision as to the rejection of its judicial deference affirmative defense, we will apply the doctrine of implied findings. (Code Civ. Proc., § 634; Arceneaux, supra, 51 Cal.3d at pp. 1133-1134.) Thus, if the record on appeal contains substantial evidence that any one of the four elements was lacking — regardless of the evidence in support of such elements (Pope, supra, 229 Cal.App.4th at p. 1245; Bowers, supra, 150 Cal.App.3d at pp. 872-873) — then the Association has not met its burden of establishing trial court error.15 (Michael U., supra, 39 Cal.3d at pp. 792-793.)

We conclude that the first element is lacking as a matter of law, and the record contains substantial evidence to support an implied finding that the third and fourth elements were lacking. For purposes of this analysis, we will assume without deciding that the Association's application of section 3.1.26 involved an exercise of the Board's discretion.

a. As a Matter of Law, the Board Did Not Exercise its Discretion Within the Scope of Its Authority Under the Declaration

With regard to whether the Board acted outside "the scope of its authority" (Lamden, supra, 21 Cal.4th at p. 265), on at least two independent grounds, the Association did not meet its burden of establishing trial court error in the implied finding that the Board did not act within the authority of the Declaration.

First, the plain language of section 3.1.26 does not authorize an exception if the trees interfere, but not unreasonably, with the neighbor's view. Second, section 3.1.26 does not authorize the Board to balance one homeowner's concerns against the other homeowner's concerns.16 To the contrary, as a general rule, the enforceability of a use restriction is determined "not by reference to facts that are specific to [one particular] homeowner, but by reference to the common interest development as a whole."17 (Nahrstedt, supra, 8 Cal.4th at p. 386.)

Because the Association based its decision on an improper interpretation of the governing documents (see pt. II.B.1., ante), as a matter of law the Association failed to exercise its discretion within the scope of its authority. (See MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1048 [because "`"`"[t]he scope of discretion always resides in the particular law being applied"'"'" where the action taken "`"`"transgresses the confines of the applicable principles of law,"'"'" the action is necessarily "`"`"outside the scope of discretion"'"'"].)

b. The Record Contains Substantial Evidence to Support Implied Findings That the Board Did Not Act in Good Faith or for the Best Interests of the Association and its Members

With regard to the third element of the affirmative defense — namely, whether the Board acted "in good faith" (Lamden, supra, 21 Cal.4th at p. 265) — the record contains substantial evidence to support an implied finding that, to the extent the Board exercised discretion in the decisions communicated in the April 2010 letter, the Board failed to act in good faith. One of the members of the ARC that authored the letter testified that the only reason for the change in the Board's position in the two months between February and April 2010 was that Lingenbrink "was being difficult." That same ARC member testified in general that, during the 2010-2012 time period, Lingenbrink was "disliked" by another ARC member and "caused a lot of trouble and wasted a lot of time and a lot of the [Association's] money," and Pardee was "an extremely nice gentleman" who was popular and well-known in the community.

With regard to the fourth element — namely, whether the Board acted in "the best interests of the community association and its members" (Lamden, supra, 21 Cal.4th at p. 265) — as we have already described, (1) the Association's April 2010 letter references only a consideration of the concerns of Pardee and Lingenbrink, and (2) one of the members of the ARC that authored the April 2010 letter testified that the ARC did not balance anything, let alone the considerations of the Association and its members, before sending the letter. This constitutes substantial evidence that another element of the affirmative defense was lacking.

c. Conclusion

In summary, on both legal and substantial evidence grounds, the record supports the trial court's ruling that the doctrine of judicial deference did not apply to the Association's actions from April 2010 onward.18 Accordingly, the Association did not meet its burden of establishing reversible error related to the application of the judicial deference rule.

C. The Court Will Not Consider the Merits of the Association's Suggestion that the Trial Judge "May Have Been Disqualified"

In fewer than two pages at the conclusion of its opening brief, the Association suggests that the trial judge "may have been disqualified from rendering judgment in this case." (Bolding and some capitalization omitted; italics added.) The Association then submits that this suggestion" further supports the reversal of the judgment." The Association is wrong.

The Association has provided us with a copy of a minute order by which the trial judge recused herself with no explanation — i.e., with no statement of disqualification — 48 days after filing the judgment (which was before hearing posttrial motions).19 Because the Association acknowledges that it "has no knowledge of any circumstances that would have given rise to a requirement for [the trial judge] to recuse herself between entry of judgment and recusal," the Association necessarily acknowledges that it has no knowledge of any circumstances that would have given rise to a requirement that the trial judge be disqualified at any time, let alone 48 days prior to the recusal.

Significantly, the Association has not presented to the superior court its suggestion of disqualification. If, in fact, the Association had facts upon which a ruling of judicial disqualification could be made, the Association was required to present them first to the trial court.

Subject to exceptions and procedures inapplicable here, the Court of Appeal does not make rulings in the first instance (especially based on a mere suggestion); rather, we review decisions of the trial court that were based on the facts presented and the applicable law. "It is axiomatic that the trial court is the proper place for making factual decisions, and our role is limited to reviewing its decision for error, abuse of discretion, or substantial evidence. Thus, if the trial court has taken no action, we have nothing to review." (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 667.) With no ruling(s) from the trial court — i.e., without rulings as to whether the trial judge was disqualified from entering judgment in this matter and if so, whether the judgment was affected — we have no decision(s) to review. (Ibid.) An appellate court may not reverse a judgment based on an unsupported suggestion that a judge's recusal necessarily means that there was an earlier disqualifying event.

Accordingly, by merely asserting the suggestion as it did, the Association did not meet its burden of establishing reversible error. In so concluding, we express no opinion on the merits of the Association's suggestion of disqualification.

DISPOSITION

The judgment is affirmed. Lingenbrink is entitled to costs on appeal.

HALLER, Acting P. J. and O'ROURKE, J., concurs.

Foot Notes

1. We recite the relevant facts "in the manner most favorable to the judgment, resolving all conflicts and drawing all inferences in favor of respondent." (Principal Mutual Life Ins. Co. v. Vars, Pave, McCord & Freedman (1998) 65 Cal.App.4th 1469, 1475, fn. 1.)

2. A "`[p]lanned development'" is a common interest "development other than a community apartment project, a condominium project, or a stock cooperative" that has either or both of the following features: "(a) Common area that is owned either by an association or in common by the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area. [¶] (b) Common area and an association that maintains the common area with the power to levy assessments that may become a lien upon the separate interests in accordance with [Civil Code section 5650]." (Civ. Code, § 4175.) A "planned development" is one form of a "`[c]ommon interest development'" (id., § 4100, subd. (c)) and consists of "(1) `separate interests,' which are separately owned lots . . ., and (2) one or more additional lots or spaces owned in common with the owners of the separately owned lots, or mutual, common, or reciprocal interests in, or restrictions upon, all or a portion of the separately owned lots" (8 Miller & Starr, Cal. Real Estate (4th ed. 2016) § 28:3, p. 28-19).

3. Section 3.1.26 also deals with other landscaping issues and provides in full: "Within ninety (90) days after filing a notice of completion for a Residence, each Lot, except for the portion of each Lot designated as a Common Landscaping Area[,] shall be landscaped by each Owner in accordance with landscaping plans which shall have received the prior approval of the Architectural Review Committee. All landscaping on Lots shall be maintained in a clean, attractive and well kept condition, and trees, shrubs and plantings shall be trimmed so that they shall not overhang or encroach upon, above or below any other Lot, sidewalk or street, unless the prior approval of the Architectural Review Committee is obtained. No trees, hedges or other plant materials shall be so located or allowed to reach a size or height which will interfere with the view from any Lot and, in the event such trees, hedges or other plant materials do reach a height which interferes with the view from another Lot, then the Owner thereof shall cause such tree(s), hedge(s) or other plant material[(]s) to be trimmed or removed as necessary. After such time as landscaping plans have been approved by the Architectural [Review] Committee, no mature trees shall be removed by an Owner without the prior consent of the Architectural Review Committee." (Italics added.)

4. Concerned about the impact of the Pardee residence on the view from the Krismer Property, during the construction of the Pardee residence, Lingenbrink contacted the Board, and Pardee was asked to put up story poles on the Pardee Property. The story poles were used to give a sightline of the elevation of the planned home for purposes of determining how the completed home would affect existing views from the Krismer Property.

5. As required in the Declaration, Pardee submitted, and the ARC approved, his landscape plans before any trees were planted.

6. The parties do not distinguish between the ARC and the Board, and neither do we. During the relevant time period, 2010-2012, the same three people comprised the Board and the ARC; and, in any event, the actions taken by either the Board or the ARC were on behalf of the Association.

7. At trial, one Board member (who was also an ARC member) testified that the reasons for the change in the Board's position between the February 2010 letter to Pardee (telling him to trim his trees) and the April 2010 letter to Lingenbrink (telling him that Pardee's trees did not unreasonably interfere with his view) were: that Lingenbrink "was being difficult," "caused a lot of trouble and wasted a lot of time and a lot of the [Association's] money" and was "disliked" by another of the Board members (out of a total of three). A former employee of the Association's management company testified that the change of mind was based on two considerations: if Pardee trimmed his trees as directed in the Board's February 2010 letter, either (1) the trees would not survive, according to Pardee; or (2) the further trimmed trees would not look attractive to the community, according to the ARC.

8. A member of the Board since 2006 testified that by the time of the Association's July 2012 letter all three members of the Board "disliked" Lingenbrink.

9. The Association's expert valued the loss of view at $100,000, and Lingenbrink's expert valued the loss of view at $800,000.

10. Pardee did not further trim any trees after the Association's February 2010 letter (advising Pardee that his trees "obstruct[ed] a view corridor from the [Krismer Property]") and before the Association's April 2010 letter (advising Lingenbrink that the trees on the Pardee Property did not "unreasonably impede[]" his view).

11. In postjudgment proceedings, the court determined that Lingenbrink was the prevailing party and awarded him $200,000 in attorney fees and $20,621.15 in costs. The Association appealed from the postjudgment order, and that appeal has been designated case No. D070966. We will address case No. D070966 in a separate opinion.

12. Just two months earlier, in its February 2010 letter to Pardee, the Board did not interpret section 3.1.26 as requiring that the interference be unreasonable, instead determining that the same trees did interfere with the identical view in violation of and requiring compliance with the Declaration.

13. Since Pardee was the owner of the Pardee Property in 1996, he, too, was aware of the restrictions on the landscaping he had planted and was growing.

14. The Association does not argue that the record lacks substantial evidence to support a finding that the trees on the Pardee Property interfere with the view from the Krismer Property. The Association would be unlikely to prevail on such an argument, in any event, since the trial judge viewed the premises, and the trier of facts' viewing "constitute[s] independent and substantial evidence" to support the findings based on the view of the premises. (Vaughn v. De Kreek (1969) 2 Cal.App.3d 671, 678.)

15. We will apply here the standards associated with substantial evidence that we explained at part III.A.1., ante.

16. The concerns of the homeowner with the offending trees are not mentioned in section 3.1.26: If a homeowner's trees interfere with the view of a neighbor, then that homeowner "shall . . . trim[] or remove[]" the trees.

17. Although the property manager testified that the Board generally considered the interests of the entire community in making "these types of decisions," there is no direct evidence that the Board did so in this case; and the ARC's April 2010 letter does not refer to any such consideration. Moreover, one of the members of the ARC that authored the April 2010 letter testified that the ARC did not balance anything, let alone the considerations of the community, before sending the letter.

18. Our ruling is limited to the facts of the instant case, as contained in the record in this appeal. The ruling is not a blanket statement that the doctrine of judicial deference does not apply to the Association or to the Declaration generally or to section 3.1.26 specifically.

19. The minute order provides in full: "The Court hereby recuses itself in this matter. [¶] Motion dates currently set for April 1, 2016, are vacated, and this case is referred to the Supervising Department for reassignment. Notice will be mailed to counsel. [¶] Counsel [are] directed to contact the new department to reschedule motion dates."

Adams Stirling PLC