PACIFIC HILLS HOMEOWNERS ASSN. v. PRUN
(2008) 160 Cal.App.4th 1557
RYLAARSDAM, ACTING P. J.-
Defendants Jon L. Prun and Linda L. Prun appeal
from a judgment requiring them to reduce the height of or move a gate and a
fence in the front of their residence that violates the height and setback
requirements in the covenants, conditions, and restrictions and architectural
guidelines adopted by plaintiff Pacific Hills Homeowners Association. They
contend the action was not subject to a five-year statute of limitations in Code
of Civil Procedure section 336, subdivision (b) (all further statutory
references are to this code unless otherwise noted) as the court determined but
was barred by the four-year statute of limitations in section 337.
They also assert that, in any event, the action
was barred by laches and waiver, and the court erroneously excluded certain
evidence of other nonconforming use. We disagree with each contention.
Plaintiff filed a cross-appeal claiming that
portion of the judgment requiring it to pay for two-thirds of the cost of
relocation of defendants' gate upon satisfaction of certain conditions was
erroneous. It did not address the substance of that issue, however, arguing that
because defendants had not satisfied the conditions, its own appeal was moot. We
decline plaintiff's request to clarify the effect of that part of the judgment.
Thus, we affirm the judgment.
Defendants' home is located in a planned
community subject to a Declaration of Covenants, Conditions and Restrictions
(CC&R's) and governed by plaintiff. The CC&R's allow plaintiff to adopt
reasonable rules and incorporate them into the CC&R's. The CC&R's require "the
prior written approval of the Architectural Committee" (committee) before
construction of any improvement, including a "fence or wall" and also mandate
submission of plans to the committee and its approval before construction can
begin. Plaintiff also adopted Architectural Guidelines (guidelines) that limit
fences to 6 feet in height unless they are within 20 feet of the front property
line, in which case the maximum height is 3 feet.
In late 2000 defendants decided to erect a
mechanical gate, connected to a fence and pilasters, across their driveway. Jon
testified they reviewed the [160 Cal.App.4th 1561] copy of the CC&R's and
guidelines they received when they purchased the home and found no mention of
setbacks. Jon also testified that after this action was filed he noticed that
the copy of the guidelines they received upon purchase of their home contained
only odd-numbered pages; they were missing the page containing the setback
requirements. (We note that the guidelines and amended guidelines in the record
show the setback requirement was on odd-numbered pages.)
After reviewing those documents, Jon then
called the property management company and asked about setbacks. Jon testified
that Bill Scales, the Architectural Administrator, told him that neither
plaintiff nor the City of Mission Viejo had setback requirements. According to
Jon, Scales only said that color was critical and the gate should be of high
quality. Scales assured him "there won't be any problem" or "there shouldn't be
any problem" after Jon told him a professional contractor was installing the
gate. Jon also testified Scales said he would fax the forms defendants needed
for plaintiff's approval and that permission should take only a couple of weeks.
Jon testified he understood the approval was "basically a formality."
Scales testified he did not remember the call
and would not have checked a city setback requirement for a homeowner because he
had no copy of those codes.
In the meantime defendants started building the
gate. When Scales learned of it he sent a letter informing them construction
violated the CC&R's because prior approval was required; he asked for plans to
be submitted. In late November Jon completed the forms he had received from
Scales and sent them both to him and to the committee; he did not enclose plans.
In January 2001, plaintiff sent a letter to
defendants asking for plans. Defendants re-sent their application with a drawing
that did not show the specifics of the gate as required by the CC&R's.
Consequently, plaintiff returned it stamped, "Disapproved as submitted"
(capitalization omitted) with another request for defendants to "[s]ubmit clear
drawings . . . ." Defendants then did so, showing the gate within three feet of
the front property line. In mid-February the committee denied approval of
defendants' proposed fence and gate because it did not comply with the setback
requirements. But defendants had already completed the gate. [160 Cal.App.4th
In late July and August 2001 plaintiff sent
letters to defendants, first asking them to comply with the CC&R's and then
inviting them to attend a board meeting in October. Thereafter plaintiff sent a
letter giving defendants a November deadline for them to move the gate to comply
with the setback requirements and advising it would assess a $100 fine if they
did not; plaintiff also invited them to a meeting in December to "discuss the
At some point plaintiff contacted the City of
Mission Viejo advising it of the situation. In May 2002, the city sent written
notice to defendants that their gate violated its setback requirements. Between
November 2002 and January 2003, plaintiff sent four more letters assessing fines
and inviting defendants to meetings, which they attended.
In March 2003, plaintiff's lawyer sent a letter
to defendants, stating it was plaintiff's "last effort to resolve th[e] matter"
and insisting that the gate be moved back. It gave defendants 10 days to advise
whether or not they intended to comply; if not plaintiff would take legal
action. Jon testified he called the lawyer and explained defendants' "side of
the . . . story." He also testified plaintiff's counsel told him he thought that
sounded "logical" and "plausible"; he wanted to research the matter and said if
he did not get back to defendants, they should "consider the matter closed."
Thirteen months later in April 2004 a different
lawyer sent a letter to defendants inviting them to submit the matter to
alternative dispute resolution and advising that if they did not respond in 30
days, plaintiff "may authorize" filing of a lawsuit. When Jon called that lawyer
he was told, "we're going to make you move the gate." Nothing happened until
almost one year later, in March 2005, when plaintiff's lawyer sent another
letter suggesting mediation.
When defendants did not mediate, in April 2005
plaintiff filed this action for breach of the CC&R's, nuisance, and declaratory
and injunctive relief. The injunction sought was based on violation of the
setback requirements, not defendants' failure to obtain prior approval of the
project. The case went to trial only on the injunction cause of action.
The court found in favor of plaintiff. It
ruled, in part, that the five-year statute of limitations in section 336,
subdivision (b) applied and thus the action was filed timely. The court also
found defendants had not proven their other affirmative defenses of estoppel,
laches, or waiver. [160 Cal.App.4th 1563]
The judgment ordered defendants to lower their
fence, gates, and pilasters to a maximum of 3 feet, or, in the alternative, to
set them back to at least 20 feet from the front property line. In that case,
the height could be up to six feet. If defendants chose the latter alternative
and gave plaintiff timely written notice of their decision, plaintiff would be
required to pay two-thirds of the cost of the relocation. If defendants did not
timely give notice, they had to pay the entire cost of the ordered corrections.
If defendants gave such notice and plaintiff did not agree in writing to pay
two-thirds of the cost, the injunction would dissolve and defendants would be
allowed to keep the gates and fence as built.
1. Applicable Statute of Limitations
 Plaintiff filed this action more than four
years but less than five years after defendants erected the gate. Defendants
contend that section 336, subdivision (b), which is a five-year statute of
limitations, applies only to recorded documents, in this case, CC&R's, and not
to unrecorded rules and regulations or guidelines of homeowners associations
such as are at issue here. We disagree.
 Section 336, subdivision (b) provides for a
five-year statute of limitations for "[a]n action for violation of a
restriction, as defined in Section 784 of the Civil Code." Civil Code section
784 states, "'Restriction,' when used in a statute that incorporates this
section by reference, means a limitation on, or provision affecting, the use of
real property in a deed, declaration, or other instrument, whether in the form
of a covenant, equitable servitude, condition subsequent, negative easement, or
other form of restriction."
 Defendants maintain that, for this
definition to apply, a restriction must be recorded. They advance several
grounds for this assertion, including the plain language of the statute and its
legislative history, the rule that statutes should be harmonized, the absence of
the setback restriction from the recorded CC&R's, and the principle of ejusdem
generis. Based on our reading of the plain language of section 336, subdivision
(b) and Civil Code section 784, we conclude section 336, subdivision (b) does
not govern merely recorded restrictions but applies to unrecorded restrictions
as well. [160 Cal.App.4th 1564]
 "'When interpreting statutes, "we follow
the Legislature's intent, as exhibited by the plain meaning of the actual words
of the law""' . . . "'giving them their usual and ordinary meaning and
construing them in context. [Citation.] If the plain language of the statute is
clear and unambiguous, our inquiry ends, and we need not embark on judicial
construction. [Citations.] If the statutory language contains no ambiguity, the
Legislature is presumed to have meant what it said, and the plain meaning of the
statute governs.' [Citation.]" (Stephens v. County of Tulare (2006) 38 Cal.4th
793, 801-802.) This is so "'"'whatever may be thought of the wisdom, expediency,
or policy of the act.'"' [Citations.]" (California Teachers Assn. v. Governing
Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632; see also Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)
A restriction, as defined in Civil Code section
784, is a limitation on the use of real property, as set out in several
specified types of documents, including covenants, equitable servitudes,
conditions subsequent, and negative easements, with a catchall description at
the end applying to any "other form of restriction."
Nothing in the language states this last
category of restriction must be recorded. The fact that all enumerated documents
are generally recorded does not compel such an interpretation. Had that been the
intent of the Legislature, it could have easily used the language any "other
form of recorded restriction."
But it did not, and it is not within our
province to do so in the guise of interpretation, even if that seems like a more
logical or better policy. If such was its intent, the Legislature has the
ability and opportunity to amend the language to make this clear.
 Because we determine the plain meaning of
the statute based on its language, we do not resort to extrinsic aids to
construe its meaning. (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th
503, 508.) Thus, we need not address defendants' other arguments as to the
meaning of the statutes.
 Defendants also assert that plaintiff's
claim is barred by laches. "'The defense of laches requires unreasonable delay
plus either acquiescence in the [160 Cal.App.4th 1565] act about which plaintiff
complains or prejudice to the defendant resulting from the delay.' [Citation.]"
(Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 68.) Defendants argue
plaintiff's more than four-year delay in filing the action was "patently
unreasonable" and that the delay shows plaintiff acquiesced in defendants'
placement of the gate. It points to three 1-year periods in which plaintiff did
virtually nothing with respect to defendants' gate.
There is no question plaintiff delayed in
enforcing the setback restriction. Despite the spin it tries to put on the
facts, plaintiff's alleged "sheer volume" of attempts and "continued . . .
efforts to bring [defendants] into compliance" do not explain those lengthy gaps
in its contacts with defendants or its extended inactivity. We do not condone
this course of conduct and in the right fact situation, which we do not define,
such delays could support a finding of laches.
But we agree with the trial court that
defendants cannot show prejudice. They began building the gate before they
submitted an application for approval of their project and before the
architectural committee got involved. The evidence showed construction was
finished by as early as November 2000 and no later than February 2001. Thus, it
would not have mattered whether plaintiff was diligent.
Nor, despite the delays, can defendants show
plaintiff acquiesced. Plaintiff made its opposition to the gate known from the
moment it was built, and it never changed its position or communicated to
defendants it had changed its position. And, importantly, Jon testified that
from February 2001 until the complaint was filed, he understood that plaintiff
"appeared to want the gate moved." Thus, the defense of laches must fail.
Defendants also assert plaintiff waived its
right to enforce the guidelines because it did not apply them fairly,
reasonably, or uniformly. They contend plaintiff had the burden of proof to show
it in fact did enforce the guidelines fairly, and the court erred in not
requiring that plaintiff meet that burden but instead put the burden on
defendants to prove an affirmative defense. Finally, defendants claim the court
erred by excluding defense evidence that showed plaintiff had arbitrarily
allowed a nonconforming use by another property owner. None of these arguments
 "When a homeowners' association seeks to
enforce the provisions of its CCRs to compel an act by one of its member owners,
it is incumbent upon it to show that it has followed its own standards and
procedures prior to [160 Cal.App.4th 1566] pursuing such a remedy, that those
procedures were fair and reasonable and that its substantive decision was made
in good faith, and is reasonable, not arbitrary or capricious. [Citations.]"
(Ironwood Owners Assn. IX v. Solomon (1986) 178 Cal.App.3d 766, 772.) "The
criteria for testing the reasonableness of an exercise of such a power by an
owners' association are (1) whether the reason for withholding approval is
rationally related to the protection, preservation or proper operation of the
property and the purposes of the Association as set forth in its governing
instruments and (2) whether the power was exercised in a fair and
nondiscriminatory manner. [Citations.]" (Laguna Royale Owners Assn. v. Darger
(1981) 119 Cal.App.3d 670, 683-684.)
Here there was evidence plaintiff followed its
ordinary procedures in attempting to enforce the setback requirement. It sent
letters demanding that defendants comply with the guidelines, invited defendants
to meet with the board, imposed fines, and finally filed suit.
Defendants complain that their next-door
neighbors, Anthony and Kathleen Garcia, built in violation of the guidelines but
plaintiff did not sue them to compel compliance with the architectural rules.
Thus, they conclude, plaintiff lost its right to enforce the restrictions as to
defendants. The Garcias obtained plaintiff's approval to build pilasters within
the 20-foot setback area. But during construction, which occurred six years
before defendants', they apparently built their pilasters six feet high in
violation of the guidelines. Plaintiff was unaware that had occurred until
defendants pointed it out during the pendency of this dispute.
At that point plaintiff's committee sent
letters to the Garcias asking them to modify the pilasters to conform to the
guidelines, and the committee and the management company discussed the
violation. Plaintiff determined that the Garcias' pilasters were "not as
obtrusive as [defendants'] gate was." It also concluded, as its expert, an
architect and engineer, testified that the Garcias' pilasters are only a "minor
obstruction" and therefore not as dangerous, compared to defendants' gate, which
is a safety hazard.
Although this is not overwhelming evidence, it
met plaintiff's burden of proof to show it did address the Garcias' violation
and did not act unreasonably or unfairly in not suing them as it did defendants.
Thus, the court did not improperly shift the burden of proof to defendants' to
prove an affirmative defense.
 "[E]nforcement of the restriction must be
in good faith, not arbitrary or capricious, and by procedures which are fair and
uniformly applied. [Citation.] The framework of reference, as the court made
clear, is not the [160 Cal.App.4th 1567] reasonableness specific to the
objecting homeowner, but reasonableness as to the common interest development as
a whole. [Citation.]" (Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th
1600, 1610.) The evidence shows plaintiff took into account the relative safety
of the two different structures, thus evaluating them in light of the entire
development, in deciding how to proceed.
Defendants argue they had evidence of another
homeowner's violation of the guidelines that would support their waiver argument
but the court erroneously excluded it. But nothing in the record shows
defendants made an offer of proof, as was their burden, nor does it give us any
information about the particulars of the evidence such that we could determine
whether it was error to exclude it. (Magic Kitchen LLC v. Good Things Internat.,
Ltd. (2007) 153 Cal.App.4th 1144, 1164-1165.)
4. Plaintiff's Appeal
Plaintiff filed a cross-appeal, claiming the
court abused its discretion in ordering it to pay for two-thirds of the cost of
moving defendants' gate. It maintains there was no evidence the cost of
relocating the gate would "cost twice" the amount plaintiff's expert testified
to. Plaintiff misstates the court's decision.
 In its tentative ruling the judge did note
it was "very likely it will cost appreciably more than [the expert's] estimate."
But its ruling was not based on evidence of the cost. The tentative stated it
was because of "plaintiff's sloppiness in not pursuing this much more promptly .
. . ." Injunctions are based on equity (Syngenta Crop Protection, Inc. v.
Helliker (2006) 138 Cal.App.4th 1135, 1166-1167), and we see no abuse of
discretion in the result the court fashioned. (See City of Vernon v. Central
Basin Mun. Water Dist. (1999) 69 Cal.App.4th 508, 516.)
 Plaintiff asserts that its appeal "is
apparently moot" because defendants did not timely elect to move the gate back
at least 20 feet from the property line, and asks for a "clarification of the
effect of the passage of [the] time lines" set out in the judgment. We decline
to do so. There is nothing in the record to show what occurred after judgment
was entered with respect to the gate. Nor do we give advisory opinions. (Coleman
v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1126.) [160
The judgment is affirmed. In the interests of
justice, the parties shall bear their respective costs on appeal.
O'Leary, J., and Fybel, J., concurred.