Eisen v. Tavangarian

36 Cal.App.5th 626

248 Cal.Rptr.3d 744

Glenn EISEN et al., Plaintiffs and Appellants,

v.Ardeshir TAVANGARIAN et al. Defendants and Appellants.

B278271

Court of Appeal, Second District, Division 7, California.

Filed June 20, 2019

Rosario Perry Law Corp., Rosario Perry, Santa Monica, Hiroko Ushimaru; Law Offices of Richard B. Miller and Ricahrd B. Miller for Plaintiffs and Appellants Glenn Eisen and Alison Eisen.

Judith A. Gelfand, Beverly Hills, for Marquez Knolls Homeowners Judith A. Gelfand, Wayne Marcus, Bernard Hathaway, William R. Fado, H. Peter Grassl, Kathleen A. Kerrigan, Silgia Grassl, Emil Kadrnka, Simon T. Halff, Brian Faris, Peter J. Zomber, Sabrina Diaz and Renate Hecht as Amici Curiae on behalf of Plaintiffs and Appellants Glenn Eisen and Alison Eisen.

Horvitz & Levy, Barry R. Levy, John A. Taylor, Jr., Andrea M. Gauthier, Burbank; Afifi Law Group and Faryan Andrew Afifi, Los Angeles, for Defendants and Appellants Ardeshir Tavangarian, Tania Tavangarian and 619 Properties, LLC.

PERLUSS, P. J.

Following a bench trial the court entered judgment and granted an injunction in favor of Glenn Eisen and Alison Eisen, finding that Ardeshir Tavangarian, Tania Tavangarian and 619 Properties, LLC had violated the view protection provisions of paragraphs 1 and 11 of the covenants, conditions and restrictions (CC&R's) applicable to the parties' neighboring properties in the Marquez Knolls section of the Pacific Palisades. The court ordered removal of certain alterations and improvements made by the Tavangarians to their home, now owned by 619 Properties, and awarded the Eisens $ 39,000 in "interim damages" for their loss of view.

On appeal the Tavangarians and 619 Properties argue neither paragraph 1 nor paragraph 11 of the CC&R's restricts alterations to an existing residence; the Eisens waived or are estopped from seeking relief with respect to several claims in their lawsuit; injunctive relief was improperly awarded in view of the adequacy of the Eisens' legal remedy and the balance of equities; and the court erred in excluding relevant evidence and denying a request for leave to amend their answer. In a limited cross-appeal the Eisens contend the trial court erred in ruling paragraph 1 of the CC&R's prohibits only alterations of a residence's second story that detract from a neighbor's view and not all expansions of the contour or silhouette of a previously approved second story.

We reverse the judgment with directions.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Parties

The Eisens purchased the real property located at 1145 Lachman Lane in the Marquez Knolls area of Pacific Palisades in August 2009. The Tavangarians, as trustees of the Tavangarian Revocable Trust dated 2002, purchased the real property at 1134 Lachman Lane in October 2012 for the purpose of remodel and resale.¹ The Tavangarians never lived at 1134 Lachman Lane and sold the property to 619 Properties in April 2014 during the pendency of this litigation.

Lachman Lane generally runs north-south. The Tavangarian property is across the street, to the southeast of the Eisen property. Both homes have ocean views to the south. However, based on two site inspections, the trial court found the Eisens' primary view is out their east-facing windows across Lachman Lane and over the roof of the Tavangarians' home.

2. The CC&R's Governing Lots in Marquez Knolls Tract 20305

Homes in the Marquez Knolls area were originally constructed as 2,200-to-2,500-square-foot tract houses with common architectural and design features. The Eisen and Tavangarian properties are located in tract 20305 and are subject to CC&R's recorded for that tract on May 4, 1962. Four of the CC&R's—paragraphs 1, 2, 3 and 11—are particularly significant to the case at bar.

Paragraph 1 of the CC&R's provides:

"All said lots shall be known and described as residential lots, no structure shall be erected, altered, placed or permitted to remain on any building plot other than one detached single-family dwelling not to exceed one story in height and a private garage, for not more than three cars; except; where, in the judgement [sic ] of the Declarant [ (Marquez Knolls Inc.)² ] and approved by the Architectural Committee, one two story single-family dwelling may be erected where said dwelling will not detract from the view of any other lot."

Paragraph 2 provides in part:

"No building shall be erected, placed or altered on any building plot in this subdivision until the building plans, specifications, and plot plan showing the location of such building have been approved in writing as to the conformity and harmony of exterior design with existing structures in the subdivision, and as to location of the building with respect to topography and finished ground elevation by an Architectural Committee .... In the event the said committee fails to approve or disapprove a design and location within thirty (30) days after said plans and specifications have been submitted to it, or in any event, if no suit to enjoin the erection of said such building or making of any alterations have [sic ] been commenced prior to the completion thereof, such approval will not be required and this covenant will be deemed to have been fully complied with.... The power and duties of such committee shall cease on or after December 31, 1966. Thereafter, the power and duties described in this covenant shall pass to the Marquez Knolls Property Owner's Association, Inc., a California corporation, who shall thereafter exercise the same powers previously exercised by said committee until December 31, 1980 at such time the powers and duties exercised by said Association shall cease and determine."

Paragraph 3 provides:

"No building shall be located on any lot nearer than fifteen (15) feet to the front lot line. No building, except a detached garage or other outbuilding located sixty (60) feet from the front lot line, shall be located nearer than five (5) feet to any side line. No residence or attached appurtenance shall be erected on any lot nearer than fifteen (15) feet from the front lot line except where the county or city permits and with specific authority of the architectural committee."

Paragraph 11 provides:

"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 lot, and the right of entry is reserved by the Declarants to trim any tree obstructing the view of any lot."

3. The Tavangarians' Remodel of Their Home

When the Tavangarians purchased 1134 Lachman Lane, the house had an L-shaped design. The rectangular portion lying east-west had two stories and was located at the north end of, and perpendicular to, the one-story portion of the house that ran north-south at the western end of the east-west segment. The Eisens and the Tavangarians agree the architectural committee had approved the two-story residence at the time it was built, as required by paragraphs 1 and 2 of the CC&R's.

Starting in approximately April 2013 Mr. Tavangarian began remodeling the residence. He replaced an old rooftop air-conditioning unit with new air-conditioning units, ducts, fences and related modifications on the first-and second-story roofs. The second story's western wall was extended to the south by more than five feet (referred to as a "privacy wall"), and its south-facing wall was extended to the south by more than four feet. In addition, the original roof of the second story was extended by cantilevering it out to the south by eight feet, so that it was coextensive with the new privacy wall. Tavangarian also built a three-sided glass wall enclosure that extended a second-floor bathroom several feet to the south; and he extended the east-facing side of the second story by approximately two feet, from which he built a deck with a cantilevered roof covering it. Finally, existing hedges along the border of the property at Lachman Lane were removed and replaced. The new hedges were permitted to grow more than three feet above the ground.

By the end of September 2013 the project was nearing completion, and the air-conditioning equipment was in place.

4. The Eisens' Lawsuit

The Eisens sued the Tavangarians on September 13, 2013, alleging the remodeling being done at the Tavangarians' property violated paragraphs 1 and 11 of the CC&R's, which the Eisens alleged "prohibit the erection of any ‘structures’ that would unreasonably obstruct or detract from" the view from their property. More precisely, the Eisens alleged paragraph 1 prohibits a property owner from making any alterations to an existing two-story structure and paragraph 11 prohibits a property owner from erecting a structure that unreasonably obstructs the view from any other lot. The complaint specifically identified the new "Multi-Ton Air Conditioner" and related ducting and equipment on the first-and second-story roofs and alleged the Eisens were concerned the Tavangarians "may be planning to construct other or additional structures, in addition to the air-conditioner and ducting that would obstruct their views in violation of the CC&Rs." The Eisens' complaint sought damages and injunctive relief, including an injunction preventing the Tavangarians from making any additions or alterations that raised or increased their house's original roof height.

The Eisens filed a first amended complaint in February 2014 and a second amended complaint in June 2014, which added 1134 Lachman Lane's new owner, 619 Properties, as a defendant. Neither amended version of the pleading specifically addressed the privacy wall, the cantilevered roof or the glass enclosure that was being constructed at the property. However, in a trial brief filed in August 2015 and subsequent papers filed by the Eisens during the bench trial, these items were raised as additional violations of paragraphs 1 and 11 of...