Max Liskin vs Hope Ranch Park Homes Association et al

Case Number

22CV02239

Case Type

Hearing Date / Time

Fri, 03/01/2024 - 10:00

Nature of Proceedings

Motion for Summary Judgment; Motion for Summary Adjudication

Tentative Ruling

(1)       For the reasons set forth herein, the motion of defendant and cross-complainant Creciente, LLC, and defendants Marc. A. Lowe and Pauline Lowe for summary judgment or alternatively for summary adjudication is denied in its entirety.

(2)       For the reasons set forth herein, the motion of defendants Hope Ranch Park Homes Association, Marco Del Chiaro, and Jill Van Zebroeck for summary adjudication is denied in its entirety.

Background:

(Note: Plaintiff and cross-defendant Max Liskin, Trustee of the Max Liskin Trust dated July 18, 2003, is referred to herein as Liskin or plaintiff. Defendant and cross-complainant Creciente, LLC, and defendants Marc A. Lowe, and Pauline Lowe are collectively referred to herein as the Lowe Defendants. Defendants Hope Ranch Park Homes Association (HRPHA or Association), Marco Del Chiaro, and Jill Van Zeebroeck are collectively referred to herein as the Association Defendants. Unless the context indicates otherwise, citations to documents in the discussion of a particular motion are to those documents filed in support of, or in opposition to, that motion.)

The following summary of fact is intended to identify facts discussed by the parties and helpful to understanding the court’s analysis but is not intended to be an exhaustive summary of the evidence presented.

(1)       Lowe Defendants’ Motion – Background Facts

Defendant and cross-complainant Creciente, LLC (Creciente) is the record owner of real property located at 4121 Creciente Drive, Santa Barbara (Lowe Property). (Plaintiff’s Response to Lowe Defendants’ Separate Statement [PSS], undisputed fact 1.) Plaintiff and cross-defendant Max Liskin, as Trustee of the Max Liskin Trust dated July 18, 2003, is the record owner of real property located at 4125 Creciente Drive (Liskin Property). (PSS, undisputed fact 2.) The Liskin Property and the Lowe Property are adjacent parcels located on top of the coastal bluff in the common interest development known as “Hope Ranch.” (PSS, undisputed fact 3.)

In 1924, Santa Barbara Estates Incorporated (SBE) recorded a subdivision map (Subdivision Map) entitled, “Map of Santa Barbara Estates being a subdivision of a port of Map of Hope Ranch Park.” (Lowe Defendants’ Response to Plaintiff’s Additional Separate Statement Facts [DRSS], undisputed additional fact 1.) The land that comprises the Lowe Property is included among the land then owned by SBE and identified in the Subdivision Map. (DRSS, undisputed additional fact 2.) On July 11, 1924, SBE recorded its “Declaration of Conditions, Covenants and Charges Affecting the Real Property known as Hope Ranch Park …” (SBE CC&Rs or 1924 CC&Rs). (DRSS, undisputed additional fact 3.)

The SBE CC&Rs (Plaintiff Exhibits, exhibit 18) include the following provisions:

“WHEREAS, [SBE] is the owner of a certain tract of land in the County of Santa Barbara …; and

“WHEREAS, [SBE] is about to sell property shown on said map, which it desires to subject to certain conditions, covenants and charges between it and the purchasers of said property as hereinafter set forth; and

“WHEREAS, there has been incorporated and exists under the laws of the State of California, a non-profit, co-operative corporation without capital stock, know as Hope Ranch Homes Association, in which is to reside the power to interpret and enforce certain of the conditions, covenants and charges set forth in this declaration;”

“NOW THEREFORE, [SBE] declares that the property shown on said map, excepting therefrom Lots 94-A, 94-B, 95-A, 95-B, 96-A, 96-B, 97-A, 97-B, 98-A, 98-B, 99, 100, 101 to 109 inclusive is held and shall be conveyed subject to the conditions, covenants and charges set forth in the various clauses and subdivisions of this Declaration, to wit:”

“Clause No. 1- Duration of Conditions.

“All of the conditions, covenants and charges set forth in this Declaration shall affect all of said property, are made for the direct benefit thereof, and shall run with the land and continue until January 1, 1944, and may, as then in force, be extended as to all or part of said property from that time for a period not exceeding ten years, and thereafter for consecutive periods of not more than ten years each without limitation, by the assent, evidenced by appropriate agreement entitled to record, of the owners of more than one-half in area of the property shown on said mat exclusive of the streets, parks and open spaces intended for the general use of the owners of property shown on said map.”

“Clause No. 3 Residence Conditions.

“Except as provided in paragraph 3-A [relating to a community center] hereafter no store, grocery or mercantile business of any kind shall be maintained or carried on upon said property; nor shall any of said property (except the streets, parks and open spaces intended for the general use of the owners of property shown on said map) be used for any purpose other than residence purposes; nor shall any building erected or maintained upon any lot or parcel of said property except a private dwelling-house not more than two stories in height exclusive of finished attic, if any, and with or without basement or cellar, and outhouses hereinafter permitted. Each such dwelling-house shall be designed and intended for occupation by no more than one family; flats, double houses, apartment houses, tenement houses, hotels, and public boarding or lodging houses being expressly prohibited. There shall be permitted to be erected and maintained the outhouses appurtenant to said dwelling-house, provided that no outhouse shall be more than two stories in height. For the purposes of this Declaration a private garage (not more than two stories in height) for the use of the owner or occupant of the plot upon which said garage is erected shall be deemed an outhouse; and such private garage may be incorporated in and be maintained prior to the erection of said dwelling-house. This clause shall not be understood to prevent the construction and maintenance by Hope Ranch Home Association of community garages or of structures for the conduct of its business.”

“Clause No. 9 A   Violation of Conditions

“[¶] … [¶] All of the conditions, covenants and charges contained in this Declaration shall be construed together, but if it shall at any time be held that any one of said conditions, covenants or charges, or any part thereof, is invalid, or for any reason becomes unenforceable, no other condition, covenant or charge, or any part thereof, shall be thereby affected or impaired.”

“Clause No. 10 Right to Enforce

“The provisions, contained in this Declaration shall bind and inure to the benefit of and be enforceable by Hope Ranch Homes Association, or by the owner or owners of any property shown on said map, their, and each of their, legal representatives, heirs, successors and assigns; and failure by Hope Ranch Homes Association or any property owner, or their legal representatives, heirs, successors or assigns, to enforce any of such conditions, covenants or charges herein contained shall in no event be deemed a waiver of the right to do so thereafter.”

On February 23, 1940, SBE and Harold Cornelius Bradley, et ux., (the Bradleys) entered into an Indenture for SBE’s conveyance of the Lowe Property to the Bradleys, recorded on February 27, 1940 (the 1940 Deed). (DRSS, additional undisputed fact 18.) The Lowe Property is identified in the 1940 Deed as portions of lots 104 and 105. (Plaintiff’s Evidence, exhibit 19, p. 88.)

The 1940 Deed contains the following provisions (Plaintiff’s Evidence, exhibit 19):

“THIS CONVENYANCE IS MADE and said real property is granted subject to each of the following restrictions and covenants which shall run with the land and continue in force and effect and be extended as provided under Declarations of Conditions, Covenants and Charges Affecting the Real Property Known as Hope Ranch, and any amendments, revisions or renewals thereof:

“(a)      The express provision that the grantor is not liable or responsible for any inducement, representation, agreement, condition or stipulation not set forth herein or in any Revised Declaration of Conditions, Covenants and Charges.

“(b)      The express provision that any residence which may be erected upon said real property shall cost in actual value for labor and material not less than $7500.00 based on present building costs, and shall have a roof constructed of tile or shakes.

“(c)      The express provision that not more than one main residence as herein provided shall be erected on said real property, said residence not to exceed one story in height.

“(d)      Each and every provision, restriction, reservation, lien, charge, easement, covenant and condition contained in the Revised Declaration of Conditions, Covenant_ and Charges executed by Santa Barbara Estates Incorporated, a corporation, as owner, and recorded in Book 37 of Official Records at page 205 thereof, in the office of the County Recorder of Santa Barbara County, whereby there is established a general plan for the improvement and development of said property and other property described or referred to in said Declaration of Conditions, Covenants and Charges, and provisions, conditions, reservations, liens, charge, easement and covenant fixed, including the establishment of Hope Ranch Park Homes Association, it appointed, subject to the regulation and control of which said property thereof should be sold and conveyed, and all provisions, conditions, restrictions, reservations, provisions, charges and covenants are made part of this conveyance and are expressly imposed upon said property.

“(e)      The express provision that the height of planting on said property shall be subject to regulation by the Hope Ranch Park Homes Association, it being the intention of this provision to protect views to adjoining lands and in turn provide proper protection and privacy for the property of the second parties.

“(f)       The express provision that any extension of utilities from the point of deliver_ on the boundary line of said property to the residence and outbuildings thereof shall be underground.

“(g)      The express provision that no trees or ornamental shrubs now on said property shall be out, removed or destroyed, without the written consent of the Hope Ranch Park Homes Association first had and obtained, it being understood and agreed that only such trees shall be out or removed from said land as necessary to permit of the erection of said residence and customary outbuildings.

“(h)      The express provision that any building erected on said premises shall be set back at least 75 feet from the center line of Creciente Drive and at least 20 feet from the east and west boundaries of said property.”

According to the Lowe Defendants, SBE did not own the Liskin Property at the time of the 1940 Deed. (Lowe Defendants’ Separate Statement [DSS], fact 20.) In support of this fact, the Lowe Defendants cite to a deed (Indenture) dated April 23, 1925, and recorded May 2, 1925, conveying portions of Lots 103 to 111 to County National Bank and Trust Company of Santa Barbara. (Lowe Defendants’ Exhibits, exhibit 13; Bernard decl., ¶ 22.) According to Liskin, this Indenture and the supporting declaration testimony are not relevant because the declaration testimony does not further trace the chain of title as to the Liskin Property. By contrast, other lots covered by this same Indenture, such as parcel number 063-233-012, were returned to SBE or a related entity and subsequently conveyed out to a natural person. (Bernard decl., ¶¶ 23-25.) In the case of parcel number 063-233-012, the later conveyance was from SBE to Niels H. Martin and Isabel L. Martin, by deed dated October 10, 1944. (Bernard decl., ¶ 12; Plaintiff’s Exhibits, exhibit 15.) That 1944 deed includes an express restriction of a residence “not to exceed one story in height.” (Plaintiff’s Exhibits, exhibit 15, p. 105.)

SBE, Hope Ranch Realty, and La Cumbre Estates included one-story restrictions in some, but not all, of the deeds to properties located on Creciente Drive. (DSS, fact 21 [undisputed on this point].) On the ocean side of Creciente Drive, deeds from these grantors included one-story restrictions as to parcel numbers 063-233-011 (dated Mar. 26, 1948), ‑012 (dated Jan. 15, 1945), and -010 (dated Feb. 27, 1940). (Lowe Defendants’ Exhibits, exhibits 14, 15, 19.) On the other side of Creciente Drive, deeds from these grantors included one-story restrictions as to parcel numbers 063-232-005 (dated Sept. 20, 1946), -006 (dated Feb. 5, 1947), -007 (dated Feb. 11, 1946), -008 (dated Dec. 3, 1945), -009 (dated Nov. 30, 1946), and -010 (dated Sept. 29, 1945). (Lowe Defendants’ Exhibits, exhibits 7, 8, 9, 10, 11, 12.) At the same time, on the ocean side, the Liskin Property is not subject to a one-story restriction. (PSS, response to fact 25.) On the other side of Creciente Drive, parcel numbers 063-232-002 (dated Mar. 19, 1945), -003 (dated Apr. 30, 1945), and -004 (dated Oct. 5, 1935. (Lowe Defendants’ exhibits 4, 5, 6.) (Note: The court notes that in the Lowe Defendants’ exhibit 2 (the annotated parcel map) and in the accompanying declaration, lot number 063-232-005 is erroneously identified as not being subject to a one-story restriction in the respective deed identified by Gary Bernard. (Bernard decl., ¶ 16; Lloyd decl., ¶ 5.) The referenced deed dated September 20, 1946, includes a restriction that “any structure not to exceed one story in height.” (Lowe Defendants’ Exhibits, exhibit 7, p. 105.))

Of the above properties identified as having a one-story restriction, parcel numbers 063-232-009 and -010, and 063-233-011 and -012 are identified as now having a two-story residence. (Lowe decl., ¶ 5.) Parcel number 063-232-005, erroneously identified as not having a one-story restriction, is also identified as now having a two-story residence. (Ibid.)

Liskin took ownership of the Liskin Property pursuant to a deed dated October 12, 2012. (PSS, undisputed fact 26.) Liskin first obtained actual knowledge of the one-story restriction on the Lowe Property on February 8, 2022. (PSS, response to fact 27.) The Lowes purchased the Lowe Property in June 2021. (PSS, fact 7 [undisputed on this point].)

(2)       Association Defendants’ Motion – Background Facts

With respect to the general issue of enforceability of the building height restrictions in the 1940 Deed, the Association Defendants rely upon the 1924 CC&Rs and the 1940 Deed as discussed above. (See, e.g., Association Defendants’ Separate Statement [ADSS], facts 1-4.)

HRPHA is a common interest development under the Davis-Stirling Common Interest Development Act. (Plaintiffs’ Response to Association Defendants’ Separate Statement [PADSS], fact 9 [undisputed on this point].) HRPHA is a California nonprofit mutual benefit corporation. (PADSS, fact 10 [undisputed on this point].)

SBE, as assignor, entered into a recorded indenture (Assignment Indenture), dated February 28, 1962, with HRPHA, as assignee. (PADSS, fact 5 [undisputed on this point].) The Assignment Indenture includes the following provisions (Plaintiff’s Exhibits, exhibit 13; Association Defendants’ Exhibits, exhibit C):

“WHEREAS: 1. [SBE] is now the owner of certain real property …. [¶] … [¶]

“3.       All of the said real property described in the aforesaid declarations of restrictions and modifications thereof referred to above is hereinafter referred to as ‘Hope Ranch Park’;

“4.       The Assignors were caused to be formed for the purpose of taking title respectively to the said real property described in the declaration of restrictions and modifications thereof declared by them respectively, as described above, and for the further purpose of developing said real property according to a general plan exclusively as residential and recreational area of the highest character with a unique natural aesthetic and monetary value;

“5.       Assignors, since acquiring title as aforesaid, have developed said real property according to a general plan to preserve the unique aesthetic natural value of said property exclusively as a residential and recreational area of the highest character; [¶] … [¶]

“7.       There has been, and now is, vested in Assignee, the right and power, in conjunction with the other owners of Hope Ranch Park, to interpret and enforce certain of the conditions, covenants, restrictions and modifications thereof declared by Assignors as aforesaid, and the further right and power in conjunction with La Cumbre or [SBE] to interpret, execute and enforce certain of the conditions, covenants, restrictions, charges and provisions contained in and imposed by the deeds and/or agreements of sale by which Assignors respectively have conveyed or agreed to convey portions of said Hope Ranch Park;

“8.       All of the conditions, covenants, restrictions, charges and provisions described above were created and imposed and have been continuously interpreted and enforced by Assignors and/or Assignees according to a general plan with the primary intent of, and for the primary purpose of, insuring the continued preservation of the general plan for the said Hope Ranch Park as a residential and recreational area of the highest character and to protect and preserve the high monetary value of said Hope Ranch including the portion thereof owned by Assignors, and the portion thereof owned by Assignee, which portion thereof includes but is not limited to the following interests in the real property herein referred to as Hope Ranch Park: [¶] … [¶]

            “(d)      The right of re-entry or of repossession for the breach of conditions subsequent imposed and reserved by either of the Assignors in the first instance and by this Indenture assigned, transferred, conveyed and set over to Assignee.

“9.       It is provided in certain agreements heretofore entered into by the Assignors and others, which said agreements and others contingent thereon provide for the sale of all of the capital stock of the Assignors to Hope Ranch Realty Investment Company, a California corporation, hereinafter referred to as ‘Investment Company,’ that Assignors shall transfer to Assignee all of their right, title, and interest in, to, and under certain covenants, conditions, and restrictions heretofore imposed by [SBE] or La Cumbre in conveyances of lands by them, respectively, within Hope Ranch Park in order to insure the continued preservation of Hope Ranch Park as a residential and recreational area of the highest character and to protect the monetary and unique aesthetic value of said Hope Ranch Park to the present owners thereof, including but not limited to, Assignee;

            “NOW, THEREFORE, in order to carry out the terms of said agreements and for the purpose of, and with the intent of, insuring the continued preservation of Hope Ranch Park as a residential and recreational area of the highest character, Assignors do hereby grant, sell, assign, transfer and convey to Assignee, in its capacity both as an owner of real property within Hope Ranch Park and as representative of all of its members, owners of real property within Hope Ranch Park, all of their right, title, and interest in, to, and under those certain covenants, conditions and restrictions, including but not limited to any and all rights and powers of enforcement thereof and any and all rights of re-entry or repossession for breach of condition subsequent arising out of and reserved by Assignors for the benefit of themselves respectively, their successors and assigns, at any time heretofore imposed by Assignors, or either of them, in any and all deeds and/or agreements of sale by which they or either of them have conveyed any portion or portions of Hope Ranch Park ….”

By quitclaim deed dated March 1, 1962 (Easement Quitclaim Deed), SBE, La Cumbre Estates Corporation transferred to HRPHA, subject to certain reservations, rights in easements in Hope Ranch Park. (Association Exhibits, exhibit D.)

The First Amended and Restated Declaration of Covenants, Conditions and Restrictions of Hope Ranch Park (April 1989 revision) (1989 CC&Rs) state that the last renewal of the 1924 CC&Rs occurred in 1984, effective through January 1, 1994. (PADSS, undisputed fact 7.)

The 1989 CC&Rs state, among other things, that “[t]he purpose of this Restated Declaration is to restate a Declaration of Covenants, Conditions and Restrictions for all of Hope Ranch Park, consisting of the Santa Barbara Estates Portion, the La Cumbre Estates Portion and the Laguna Blanca Portion, in one unified document, incorporating the general and basic restrictions and covenants of the respective Declarations in a format with additional provisions in compliance with current practice regarding management documents for planned-unit developments in accordance with applicable law.” (Association Exhibits, exhibit E, recital E.)

The Second Amended and Restated Declaration of Covenants, Conditions and Restrictions of Hope Ranch (May 1995 Revision as Amended August 15, 1995) (Operative CC&Rs) are the operative CC&Rs applicable to the parties herein. (See ADSS, facts 11-17 & evidence cited; PADSS, additional facts 29-36 & evidence cited.)

The Operative CC&Rs include the following provisions (Plaintiff’s Exhibits, exhibit 9; Association Defendants’ Exhibits, exhibit F, underlining omitted):

“Unless expressly provided otherwise, the following terms shall have the following meanings: [¶] … [¶]

“1.08   Common Area. All real property and improvements owned by the Association in fee or under easements or agreements for the common use and enjoyment of the Owners.” [¶] … [¶]

“1.13   Governing Documents. This Declaration, the Articles, Bylaws, Building Guidelines, Rules, Regulations and other documents which govern the operation of Hope Ranch.”

“4.01   Common Area. The Common Area consists of two types of property:

            “(a)      Fee Property. The Fee Property is that certain real property more particularly described in Exhibit ‘A’ and commonly referred to as ‘Hope Ranch Beach,’ and also that certain real property … commonly referred to as the ‘Map Area Parcel,’ ….

            “(b)      Easements and other Property Interests. All other real property interests whether shown on the public record as being held by the Association or otherwise acquired by the Association, by grant, reservation, use, prescription or under the Santa Barbara Estates Declaration, the La Cumbre Estates Declaration or the Laguna Blanca Declaration, including but not limited to easements and rights conveyed to the Association by [the Easement Quitclaim Deed], shall be collectively referred to as ‘Common Area Easements.’ These Common Area Easements are categorized as follows:

                        “(i)       Easements and rights-of-way granted to or otherwise acquired by the Association or reserved for its benefit for ingress, egress and/or incidental purposes are hereinafter referred to as ‘Private Road Easements.’ ….

                        “(ii)      Easements granted to or otherwise acquired by the Association or reserved for its benefit for purposes of private and/or public utilities and incidental purposes are hereinafter referred to as ‘Utility Easements.’

                        “(iii)    Easements and rights-of-way granted to or otherwise acquired by the Association or reserved for its benefit for use as bridle trails are hereinafter referred to as ‘Bridle Trail Easements.’

                        “(iv)     All other easements and rights in property not falling into one of the foregoing three categories shall be referred to collectively as ‘Various Easements.’ ”

“4.02   Use of the Common Area. Each Lot is hereby declared to have an easement over the Common Area for the benefit of the Owner, members of the Owner’s family, guests and invitees for uses and purposes set forth below. … In the instance of any conflict between the uses and purposes set forth below and a valid document creating a Common Area Easement, the document creating the Common Area Easement shall prevail. [¶] … [¶]

            “(e)      The Common Areas are subject to the following express rights and powers reserved to the Association: … (iv) To abandon any easement or right-of-way, other than a Utility Easement, following approval by a majority of the Voting Power of the Association, and to modify or exchange any easement or right-of-way, other than a Utility Easement, by following the procedures set forth in Section 3.04. ….”

“5.02   Restrictions on Use. All Property within Hope Ranch shall be subject to the following restrictions: [¶] … [¶]

            “(l)       In addition to enforcing the covenants, conditions and restrictions set forth in this Declaration and the other Governing Documents of the Association, the Board may enforce, or call for the enforcement of, local government ordinances and regulations, including zoning ordinances in effect and applicable to Hope Ranch. ….”

“11.03  Enforcement. The rights and obligations established or affirmed under this Declaration shall inure to the benefit of and bind all Owners of separate interests in the Property described in Article II and may be enforced by any Owner or by the Association, or by both, except that only the Association may enforce obligations to pay assessments existing by virtue of Article VI and to conform to the Building Guidelines provided for in Section 9.03.”

The current Building Guidelines (as revised through July 2020) include the following provisions (Association Exhibits, exhibit G, bolding and underlining omitted):

“Section 1.02 Purpose [¶] The Building Guidelines are intended to establish standards for construction in Hope Ranch; to help owners, prospective owners, and their architects and builders understand the policies, regulations, restrictions and certain design principles applicable to architectural review and the use of property in Hope Ranch; and to familiarize them with the procedures for obtaining requisite approvals and permits. Santa Barbara County (‘County’) also has jurisdiction over land use in Hope Ranch and has its own procedures and permit requirements that are to be followed, and a copy of all required County permits must be filed with the Association office. Deed restrictions unique to individual properties may also constrain use and development of certain parcels.”

“Section 1.03 Objectives [¶] The owner of a lot has the right to develop it for single-family residential use. The objective of the architectural review and approval process is to balance the responsible exercise of that right as defined in ‘The Plan’ (as set forth in the CC&Rs) with the rights of other owners. The process of review by the Architectural Board of Review (‘the ABR’) and the Board of Directors of the Association (‘the Board’) is intended: [¶] (a) to maintain and enhance the rural character of Hope Ranch; [¶] (b) to encourage high standards in architectural and landscape design; [¶] (c) to minimize incompatibility with surrounding properties; [¶] (d) to minimize the obstruction of views of the ocean, Laguna Blanca Lake and natural land forms such as neighboring hillsides, the Goleta Valley and the Santa Ynez Mountains; [¶] (e) to respect the privacy and quiet enjoyment of residents; [¶] (f) to ensure that grading and development are appropriate to drainage and other requirements of the site and surrounding properties; [¶] (g) to ensure that all work is completed in a timely manner, to limit its disruptive effect on the affected neighborhood; and [¶] (h) to minimize any detrimental impact to property improvements in the vicinity of the project or to public health, safety or general welfare.”

“Section 4.02 Architectural Design Principles [¶] The architecture of Hope Ranch homes has evolved over the years. Although the traditional Ranch and Spanish styles still dominate, other styles have gained acceptance. Lot size, visibility, topography and compatibility with surrounding properties all play a part in the development of good design. The structure should fit and not overpower the site. Concepts favored in building design include: [¶] (a) designing low profiles where possible to minimize impacts on views [¶] (b) mitigating second-story mass by varying the heights of second-story elements ….”

“Section 4.03 Rules Applicable to All Structures [¶] The following floor area, height and setback requirements are imposed by the CC&Rs and apply to the construction, reconstruction and alteration on any lot: [¶] … [¶] (b) Height. For the purposes of this section, the height of a structure is measured from the mean finished grade level of the perimeter of the structure to the highest element of the roof. [¶] The maximum allowable height for any structure is:

            “• 25 feet within the Coastal Zone as defined by the County and shown on the official Coastal Zoning Maps, as amended from time to time;

            “• 25 feet within the Laguna Blanca Heights area of Hope Ranch comprising those properties described in a certain ‘Declaration of Conditions, Covenants and Charges Affecting Certain Real Property Included Within Hope Ranch Park’ …; and           “• 30 feet in all other areas of Hope Ranch.”

“Section 4.04 Other Site Development Rules [¶] … [¶] (w) Accessory Dwelling Units and Junior Accessory Dwelling Units. [¶] … [¶] II. Specific Guidelines Adopted for ADU’s & JADU’s [¶] … [¶] 2.03. Height Limitations for ADU’s: For any detached ADU built on a Hope Ranch Lot in the Coastal Zone, as defined by the California Coastal Act, the ADU shall be one story with a maximum height of 16 feet above grade. Except as noted below, any detached ADU built outside of the Coastal Zone on a Hope Ranch Lot, will be restricted to a single-story 16 feet in height. Where an Owner has proven to the reasonable satisfaction of the Association that compliance with the height limitations set forth in this paragraph for detached ADU’s outside of the Coastal Zone, would unreasonably increase the cost to construct, or be incompatible with architectural features currently existing on the Owner’s Lot or effectively prohibit the construction of the proposed ADU due to the unique circumstances of their Lot, the Association may consider a variance. In considering a variance, the Association shall take into consideration, among other factors, the impact on neighboring lots, safety, view corridors, as well as those other grounds for which a variance may be granted under Section 8.04 of the Building Guidelines. Further, a detached ADU constructed in an existing permitted structure may have the same height for which the existing structure was permitted. Prior to granting approval for converting an existing structure to an ADU, the Association shall inspect the existing structure to confirm the height of the structure is consistent with the permitted height. [¶] An ADU located entirely within an existing one family dwelling or accessory structure shall not be subject to a height limit. Rather, the unaltered height limit of the existing structure shall establish the maximum height limit. An ADU that is proposed to be located above another floor, or on grade where there is no floor above, shall not exceed the maximum allowable height for the principal dwelling.”

(3)       Procedural History

On June 14, 2022, Liskin filed his original complaint in this action asserting 10 causes of action: (1) breach of governing documents; (2) breach of fiduciary duties; (3) breach of implied covenant of good faith and fair dealing; (4) tortious interference with contract; (5) intentional fraud; (6) fraudulent concealment; (7) cancellation of instrument; (8) enforcement of the 1940 Deed and governing documents; (9) wrongful withholding of association records; and (10) injunctive relief.

On August 11, 2022, the Association Defendants filed their demurrer and motion to strike as to the original complaint.

On August 15, 2022, the Lowe Defendants filed their demurrer and motion to strike as to the original complaint.

On January 13, 2023, the court sustained with leave to amend the demurrer of the Lowe Defendants as to the fourth cause of action, the demurrer of HRPHA as to the fifth and sixth causes of action, and the demurer of Del Chiaro to the first, third, fifth, and sixth causes of action. The demurrers were otherwise overruled. The court also granted in part, with leave to amend, the motions to strike.

On February 6, 2023, Liskin filed his first amended complaint (FAC), asserting nine causes of action (but maintaining for consistency the numbering of the original complaint): (1) breach of governing documents (against HRPHA); (2) breach of fiduciary duties (against the Association Defendants); (3) breach of implied covenant of good faith and fair dealing (against all defendants); (4) tortious interference with contract (against the Lowe Defendants); (5) [omitted]; (6) fraudulent concealment (against the Association Defendants); (7) cancellation of instrument (against HRPHA and the Lowe Defendants); (8) enforcement of the 1940 Deed and governing documents (against HRPHA and the Lowe Defendants); (9) wrongful withholding of association records (against HRPHA); and (10) injunctive relief (against all defendants).

On March 10, 2023, the Association Defendants filed their demurrer and motion to strike as to the FAC.

On March 13, 2023, the Lowe Defendants filed their answer to the FAC, admitting and denying allegations thereof and asserting 20 affirmative defenses. Also on March 13, the Lowe Defendants filed their cross-complaint against Liskin asserting two causes of action: (1) quiet title; and (2) declaratory relief.

On April 12, 2023, Liskin filed his answer to the Lowe Defendants’ cross-complaint, admitting and denying allegations thereof and asserting 21 affirmative defenses.

On June 9, 2023, the court overruled the demurrer, and denied the motion to strike, of the Association Defendants.

On June 27, 2023, the Association Defendants filed their answer to the FAC, admitting and denying allegations thereof and asserting 25 affirmative defenses.

On July 21, 2023, the Association Defendants filed their amended answer to the FAC admitting and denying allegations thereof and asserting 9 affirmative defenses.

On July 27, 2023, the Lowe Defendants filed their motion for summary judgment, or alternatively, for summary adjudication.

On December 11, 2023, the Association Defendants filed their motion for summary adjudication.

Both motions for summary judgment and summary adjudication are opposed by Liskin.

Trial is set to commence on March 20, 2024.

Analysis:

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“For purposes of motions for summary judgment and summary adjudication:

“(1)      A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

“(2)      A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p).)

“But other principles guide us as well, including that ‘[w]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘ “view the evidence in the light most favorable to plaintiff[] …’ and “liberally construe plaintiff[’s] evidentiary submissions and strictly scrutinize defendant[’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff[’s] favor.” ’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.)

(1)       Lowe Defendants’ Motion

The principal issue of the Lowe Defendants’ Motion is whether the one-story height restriction of the 1940 Deed (the One-Story Restriction) is enforceable to limit the height of residential construction on the Lowe Property.

The Lowe Defendants first argue that the One-Story Restriction is not a covenant that runs with the land. (See Civ. Code, §§ 1462, 1468; Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 353 (Citizens). Liskin does not assert that the One-Story Restriction is a covenant that runs with the land, but argues that the One-Story Restriction is nonetheless enforceable under the doctrine of equitable servitudes. (Opposition, at p. 10.)

            (A)       Principles of Equitable Servitudes

The guiding principle behind an equitable servitude is that “[e]ven though a covenant does not run with the land, it may be enforceable in equity against a transferee of the covenantor who takes with knowledge of its terms under circumstances which would make it inequitable to permit him to avoid the restriction.” (Marra v. Aetna Const. Co. (1940) 15 Cal.2d 375, 378.) The history of applying equitable servitudes to housing tracts begins in earnest with the decision in Werner v. Graham (1919) 181 Cal. 174 (Werner).

As summarized in Citizens, supra (parallel citations omitted):

In Werner, “a developer subdivided a tract and recorded a map of the tract. ‘This map showed no building lines or anything else to indicate any purpose of restricting in any way the manner in which the different lots might be built upon or otherwise improved or the uses to which they might be put.’ [Citation.] He then sold the lots. The early deeds contained ‘restrictive provisions, which, while differing slightly in some instances, dependent upon the location of the particular lot ... are yet so uniform and consistent in character as to indicate unmistakably that [the developer] had in mind a general and common plan which he was following.’ [Citation.] The developer told the purchasers ‘that he was exacting the same restrictive provisions from all purchasers.’ [Citation.] He later quitclaimed the property eventually purchased by the plaintiff. The deed to this property contained no restrictions. The issue was whether the restrictions placed in the deeds to the other property were also binding on the plaintiff.” (Citizens, supra, 12 Cal.4th at p. 356.)

“In Werner, supra, 181 Cal. at pages 181–182, we noted that the restrictions in the earlier deeds did not state that the land was part of a larger tract, that the restrictions were intended to benefit other land, or that the benefit was to pass to other land. ‘Servitudes running with the land in favor of one parcel and against another cannot be created in any such uncertain and indefinite fashion. It is true, the nature of the restrictions is such that, when considered in connection with the fact that [the developer] still retained the greater portion of the tract, it is not improbable that he exacted them for the benefit of the portion so retained. But the grantee’s intent in this respect is necessary, as well as the grantor’s, and the deed, which constitutes the final and exclusive memorial of their joint intent, has not a word to that effect, nor anything whatever which can be seized upon and given construction as an expression of such intent. If such was their intent, it has not been expressed.’ [Citation.]

“It made no difference in Werner that the developer ‘in all his deeds exacted similar restrictions and clearly had in mind a uniform plan of restrictions which he intended to impose, and actually did impose, upon all the lots in the tract as he sold them.’ [Citation.] We recognized that if the deeds contain ‘appropriate language imposing restrictions on each parcel as part of a general plan of restrictions common to all the parcels and designed for their mutual benefit, mutual equitable servitudes are thereby created in favor of each parcel as against all the others.’ [Citation.] These mutual servitudes ‘spring into existence as between the first parcel conveyed and the balance of the parcels at the time of the first conveyance.’ [Citation.] But, we stated, the ‘crux of the present case’ was that ‘here there is no language in the instruments between the parties, that is, the deeds, which refers to a common plan of restrictions or which expresses or in any way indicates any agreement between grantor and grantee that the lot conveyed is taken subject to any such plan.’ [Citation.]

“We went on to explain the significance of these facts. ‘The intent of the common grantor—the original owner—is clear enough. He had a general plan of restrictions in mind. But it is not his intent that governs. It is the joint intent of himself and his grantees, and as between him and each of his grantees the instrument or instruments between them, in this case the deed, constitute the final and exclusive memorial of such intent. It is also apparent that each deed must be construed as of the time it is given.... Nor does it make any difference that ... [the developer] gave each grantee to understand, and each grantee did understand, that the restrictions were exacted as part of a general scheme. Such understanding was not incorporated in the deeds, and as we have said, the deeds in this case constitute the final and exclusive memorials of the understandings between the parties. Any understanding not incorporated in them is wholly immaterial in the absence of a reformation. [Citations.] This whole discussion may in fact be summed up in the simple statement that if the parties desire to create mutual rights in real property of the character of those claimed here they must say so, and must say it in the only place where it can be given legal effect, namely, in the written instruments exchanged between them which constitute the final expression of their understanding.’ [Citation.]” (Citizens, supra, 12 Cal.4th at pp. 357–358.)

As another court summarized: “For such a servitude to exist, the three requirements under Werner are: (1) that the deeds evidence an intention on the part of both the grantor and the grantee that the land conveyed is to be restricted pursuant to a general plan; (2) that the deeds show that the parcel conveyed is subject to the restriction at issue in accordance with the plan for the benefit of all the other parcels in the subdivision and such other parcels are subject to like restriction for its benefit; and (3) that the dominant and servient tenements be adequately shown.” (Greater Middleton Assn. v. Holmes Lumber Co. (1990) 222 Cal.App.3d 980, 991.)

“In Riley v. Bear Creek Planning Committee (1976) 17 Cal.3d 500 (Riley), the developer “sold the property in dispute by a deed that contained no restrictions. ‘[A]t the time of the conveyance there was no document of record purporting to restrict the use of” the property. [Citation.] Nine months after the conveyance, the developer recorded a document purporting to impose uniform restrictions on a number of lots, including the one in dispute. The issue was whether these restrictions applied to the lot sold earlier.” (Citizens, supra, 12 Cal.4th at p. 356.)

“In Riley …, we relied on Werner … in finding the later recorded restrictions not enforceable. We stressed the key fact distinguishing that case from [Citizens]—that the restrictions of Riley were recorded after the conveyance—and stated that ‘quite apart from the rule of Werner v. Graham, it is manifest that acknowledgment and recordation of a declaration of restrictions by the grantor after the conveyance to plaintiffs cannot affect property in which the grantor no longer has any interest.’ [Citation.] We rejected the claim that parol evidence may be admitted to show that the parties in fact intended the property to be subject to restrictions like those later recorded, finding that the covenants must be in writing to be effective. ‘Every material term of an agreement within the statute of frauds must be reduced to writing. No essential element of a writing so required can be supplied by parol evidence.’ [Citation.] A contrary rule, we said, ‘ “ ‘would make important questions of the title to real estate largely dependent upon the uncertain recollection and testimony of interested witnesses. The rule of the Werner case is supported by every consideration of sound public policy which has led to the enactment and enforcement of statutes of frauds in every English-speaking commonwealth.’ ” ’ [Citation.] Therefore, there ‘ “ ‘should be some written evidence’ ” ’ indicating what property was affected by the restrictions. [Citation.] ‘ “ ‘As a matter of policy, the understanding of the parties should be definite and clear, and should not be left to mere conjecture.’ ” ’ [Citation.]” (Citizens, supra, 12 Cal.4th at p. 358.)

“We also emphasized [in Riley] the importance of recording the restrictions. ‘ “[T]he recording statutes operate to protect the expectations of the grantee and secure to him the full benefit of the exchange for which he bargained. [Citations.] Where, however, mutually enforceable equitable servitudes are sought to be created outside the recording statutes, the vindication of the expectations of the original grantee, and for that matter succeeding grantees, is hostage not only to the good faith of the grantor but, even assuming good faith, to the vagaries of proof by extrinsic evidence of actual notice on the part of grantees.... The uncertainty thus introduced into subdivision development would in many cases circumvent any plan for the orderly and harmonious development of such properties and result in a crazy-quilt pattern of uses frustrating the bargained-for expectations of lot owners in the tract.” ’ [Citation.]” (Citizens, supra, 12 Cal.4th at pp. 358–359.)

In Citizens, the defendants owned two adjacent parcels that were part of separate subdivisions developed at different times. (Citizens, supra, 12 Cal.4th at p. 349.) One parcel was created in the 1950’s and subject to CC&Rs recorded on June 5, 1958. (Id. at pp. 349-350.) That parcel was sold on October 14, 1958, but neither the original grant deed nor any other deed in the chain of title leading to the defendants in Citizens refers to the recorded restrictions. (Id. at p. 350.) The defendants’ title insurance report, however, identified the CC&Rs. (Ibid.) The second parcel was part of a subdivision approved on January 24, 1977. (Ibid.) On May 10, 1977, CC&Rs were recorded applicable to that parcel. (Ibid.) The second parcel was sold two days after the CC&Rs were recorded, but the deed refers to the parcel map only and not the CC&Rs. (Id. at p. 351.) No other deed in the chain of title to the defendants refers to these CC&Rs, but the title insurance report for the lot when purchased by the original buyers identifies the CC&Rs. (Ibid.)

The defendants in Citizens determined that they wanted to undertake activities, including operating a winery and keeping llamas as pets, that were prohibited by the respective CC&Rs. (Citizens, supra, 12 Cal.4th at p. 351.) Plaintiffs were other landowners in the subdivisions who sought to prohibit these activities. (Ibid.) The trial court found the CC&Rs unenforceable. (Ibid.) The Court of Appeal affirmed, holding, among other things, that the CC&Rs were not enforceable as equitable servitudes because no deed or other written instrument exchanged between a buyer and a seller referred to CC&Rs. (Id. at pp. 351-352.)

On review in the Supreme Court, the Citizens court noted: “ ‘The law of easements, real covenants, and equitable servitudes is the most complex and archaic body of American property law remaining in the twentieth century.’ [Citation.] Another commentator uses stronger language: ‘The law in this area is an unspeakable quagmire. The intrepid soul who ventures into this formidable wilderness never emerges unscarred. Some, the smarter ones, quickly turn back to take up something easier like the income taxation of trusts and estates. Others, having lost their way, plunge on and after weeks of effort emerge not far from where they began, clearly the worse for wear. On looking back they see the trail they thought they broke obscured with foul smelling waters and noxious weeds. Few willingly take up the challenge again.’ [Citation.]” (Citizens, supra, 12 Cal.4th at p. 348.)

Notwithstanding the challenge, the Citizens court reconciled the law of equitable servitudes with the recording statutes, determining: “If a declaration establishing a common plan for the ownership of property in a subdivision and containing restrictions upon the use of the property as part of the common plan, is recorded before the execution of the contract of sale, describes the property it is to govern, and states that it is to bind all purchasers and their successors, subsequent purchasers who have constructive notice of the recorded declaration are deemed to intend and agree to be bound by, and to accept the benefits of, the common plan; the restrictions, therefore, are not unenforceable merely because they are not additionally cited in a deed or other document at the time of the sale.” (Citizens, supra, 12 Cal.4th at p. 349.)

The Citizens court reached this conclusion noting, among other things: “By requiring recordation before execution of the contract of sale, the rule would also be fair. All buyers could easily know exactly what they were purchasing. [Citation.] Title searches would be easier, requiring only a search of restrictions of record, not of all deeds to all properties in the subdivision. ‘The danger that subsequent purchasers might not be aware of restrictions in prior deeds, where the developer neglects to incorporate similar restrictions in later deeds, and where the obligation of the title searcher extends only to instruments in the direct chain of title, can be easily avoided by insistence that the developer follow a simple procedure. Where a tract index is in effect, a plan of the proposed development should be recorded against the entire tract, which would give notice to all purchasers by placing the restriction in the direct chain of title to each lot in the tract.’ [Citation.] ‘The burden should be upon the developer to insert the covenant into the record in a way that it can be easily found. Recording a declaration of covenants covering the entire area or filing a map which referred to the covenants would be sufficient.’ [Citation.] When a developer does follow this simple procedure, it should suffice; future buyers should be deemed to agree to the restrictions.” (Citizens, supra, 12 Cal.4th at pp. 364-365.)

“The theoretical underpinning of the rule requiring the restrictions to be stated in the deeds is that a developer cannot unilaterally make an agreement. It takes two parties—in this case the seller and the buyer—to agree. Merely recording the restrictions does not create mutual servitudes. Rather, they ‘spring into existence’ only upon an actual conveyance. [Citations.] We agree with all this. The servitudes are not effective, that is, they do not ‘spring into existence,’ until an actual conveyance subject to them is made. The developer could modify or rescind any recorded restrictions before the first sale.” (Citizens, supra, 12 Cal.4th at p. 365.)

“Some of the prior cases, however, simply assumed that the deeds must expressly refer to the restrictions to evidence the purchaser’s intent and agreement. On the contrary, it is reasonable to conclude that property conveyed after the restrictions are recorded is subject to those restrictions even without further mention in the deed. ‘The issue in these cases is the intent of the grantors and grantees at the time of the conveyance.’ [Citation.] This intent can be inferred from the recorded uniform plan. It is express on the part of the seller, implied on the part of the purchaser. The law may readily conclude that a purchaser who has constructive notice, and therefore knowledge, of the restrictions, takes the property with the understanding that it, as well as all other lots in the tract, is subject to the restrictions, and intends and agrees to accept their burdens and benefits, even if there is no additional documentation evidencing the intent at the time of the conveyance. ‘If future takers purchase a piece of property with notice of a restriction made by a predecessor, then, in the absence of duress or fraud, they may ordinarily be thought to have bargained for the property with the restriction in mind, and to have shown themselves willing to abide by it.’ [Citation.]” (Citizens, supra, 12 Cal.4th at pp. 365-366.)

            (B)       Enforceability of the One-Story Restriction

                        (i)        Intention to Restrict Pursuant to a General Plan

The first of the three Werner requirements is that the deeds evidence an intention on the part of both the grantor and the grantee that the land conveyed is to be restricted pursuant to a general plan. The evidence presented shows at least a triable issue of such an intention.

The 1924 CC&Rs evidences a general plan for restrictions. The 1940 Deed expressly identifies the 1924 CC&Rs as a “general plan” and incorporates those restrictions by reference. Thus, the 1940 Deed provides sufficient evidence of the intention of the grantor and the grantee that the Lowe Property would be subject to restrictions pursuant to a general plan.

It is noted that the 1924 CC&Rs itself excludes the Lowe Property and other specifically identified parcels. At the same time, it is undisputed that both the Lowe Property and the Liskin Property are subject to CC&Rs that are amended and restated going back to, among other documents, the 1924 CC&Rs. (DSS, fact 4 & evidence cited; PSS, response to fact 4 & evidence cited.) The 1940 Deed references and the 1924 CC&Rs are reasonably reconciled by understanding that the 1940 Deed operates to add into the general plan restrictions the Lowe Property. Under the standards for summary judgment, there is at least a triable issue of fact that the 1940 Deed evidences the required intention that the Lowe Property be subject to a general plan for restrictions.

                        (ii)       Dominant and Servient Tenements

The third Werner requirement is that the dominant and servient tenements be adequately shown. The general plan set forth in the 1924 CC&Rs, and expressly incorporated in the 1940 Deed, includes express languages that “[a]ll of the conditions, covenants and charges set forth in this Declaration shall affect all of said property, are made for the direct benefit thereof.” To the same extent that the 1940 Deed by incorporating the 1924 CC&Rs constitutes an intent to restrict the land pursuant to a general plan, these documents provide sufficient evidence to identify the dominant tenements as those bound to the 1924 CC&Rs.

                        (iii)      Like Restrictions

The third Werner requirement is that the deed shows that the parcel conveyed is subject to the restriction in accordance with the plan for the benefit of other parcels in the subdivision and such other parcels be subject to like restriction for its benefit. This requirement is at the heart of the Lowe Defendants’ arguments because it is undisputed that that some property within the parcel map have a one-story restriction and have no more than a one-story residence, some property within the parcel map have a one-story restriction and have a two-story residence, and some property within the parcel map does not have a one-story restriction. The Lowe Defendants argue that this absence of uniformity demonstrates that this third requirement is not met. Liskin argues that absolute uniformity is not required and that the one-story requirement should not be viewed in isolation.

In support of their argument, the Lowe Defendants cite, among other cases, Terry v. James (1977) 72 Cal.App.3d 438 (Terry). In Terry, there was no recorded subdivision map or declaration applicable to the subdivision at issue. (Id. at p. 441.) Instead, the original owners included in deeds to the first six subdivided parcels language with certain specific restrictions. (Id. at pp. 441-442.) The defendants in Terry sought to build condominiums on their properties which would violate some of the deed restrictions, and so the plaintiffs, successors to some of the early deeds, sought declaratory relief that the restrictions applied. (Id. at pp. 441, 442.) The trial court granted summary judgment in favor of the defendants. (Id. at p. 441.)

The Terry court affirmed. (Terry, supra, 72 Cal.App.3d at p. 446.) The court first noted the application of the Werner requirements. (Id. at pp. 442-443.) There was nothing in the original deed to plaintiffs’ predecessor in interest suggesting that the land retained by the original grantors were subject to any restriction. (Id. at p. 443.) The Terry court rejected the existence of a general plan by construing later deeds in light of earlier deeds. (Ibid.) The Terry court alternatively found that there was “insufficient uniformity in the various deeds to support the theory of a general plan.” (Id. at p. 444.)

Terry was applied in Greater Middleton Assn. v. Holmes Lumber Co., supra, 222 Cal.App.3d 980 (Greater Middleton). In Greater Middleton, the trial court “found that 75 percent of the deeds executed by Middleton or his estate between 1923 and 1972, refer to a general plan ‘ “for the purpose of preserving the natural beauties of the entire tract and to make said tract attractive for residence purposes.” ’ It found that these deeds also contain restrictions ‘ “in order to further and carry into effect” ’ that common plan. Interpreting this language, the court said it evidenced an intent on the part of the grantor ‘and each grantee that the land conveyed is to be restricted pursuant to a general plan, that the restrictions are for the benefit of all other parcels in the subdivision, and that all other parcels shall be subject to such restrictions for its benefit [citations].’ The court said, ‘[T]he fact that 75% of the deeds ... contain the same restriction to residential use establishes a uniformity sufficient to indicate unmistakably a designated and adopted plan throughout.’ The court found that defendants had both constructive and actual notice of these restrictions.” (Id. at p. 988.)

Affirming the trial court’s judgment finding a logging prohibition enforceable, the Greater Middleton court stated:

“As a rule, in order to create an equitable servitude, the general scheme of restrictions must be ‘ “sufficiently uniform in character to indicate unmistakably a designated and adopted plan throughout common to all purchasers of lots....” [However,] some variety is to be expected inasmuch as it is common to plan for the development of some parcels in a manner different from but complementary to the majority of the parcels; often this depends on the geographical location of the parcels in the development tract.’ [Citation.] Considering the facts in this case and the pertinent law, we think it manifest that the first two requirements under Werner for the creation of an equitable servitude, limiting the use of the land in Middleton Tract exclusively for residential purposes, have been met. The deeds at issue contain a general scheme of restrictions in this regard which is sufficiently uniform to indicate unmistakably a designated and adopted plan throughout common to all property owners within the tract.” (Greater Middleton, supra, 222 Cal.App.3d at p. 992.)

The Greater Middleton court further observed: “Regarding the inequities of the situation, it would seem that the equities are on the side of plaintiffs given the fact that at the time defendants purchased their property, they signed a statement acknowledging the restriction against logging.” (Greater Middleton, supra, 222 Cal.App.3d at pp. 994–995.)

In considering this Werner requirement, it is important to note that the Werner requirements arose in the context of determining how to construe a particular deed not itself evidencing a common plan. “It is undoubted that, when the owner of a subdivided tract conveys the various parcels in the tract by deeds containing appropriate language imposing restrictions on each parcel as part of a general plan of restrictions common to all the parcels and designed for their mutual benefit, mutual equitable servitudes are thereby created in favor of each parcel as against all the others. The agreement between the grantor and each grantee in such a case as expressed in the instruments between them is both that the parcel conveyed shall be subject to restrictions in accordance with the plan for the benefit of all the other parcels, and also that all other parcels shall be subject to such restrictions for its benefit. In such a case the mutual servitudes spring into existence as between the first parcel conveyed and the balance of the parcels at the time of the first conveyance.” (Werner, supra, 181 Cal. at p. 183.) Noting that in Werner there was “no language in the instruments between the parties—that is, the deeds—which refers to a common plan of restrictions, or which expresses or in any way indicates any agreement between grantor and grantee that the lot conveyed is taken subject to any such plan,” the Werner court rejected a rule that considered later deeds together. (Id. at p. 184.) This rule was subsequently modified as discussed above in Citizens to harmonize this rule with rules of recordation.

The instant situation is fundamentally different from the facts of those other cases. Here, the 1940 Deed expressly references and incorporates the 1924 CC&Rs. As such, the evidence clearly shows a general plan. The uniformity requirement is therefore not necessary in this case to determine the existence of a general plan. Moreover, the general plan here, by way of the 1924 CC&Rs, uniformly includes a building height requirement. The difference between particular parcels is that the height requirement has a default of no more than two stories but is in particular cases limited to one story. This type of variation fits within the variety expected of such restrictions as contemplated by Greater Middleton.

The court therefore concludes that the evidence presented shows sufficient uniformity to satisfy the second Werner requirement. Thus, under the standards for summary judgment, there is at least a triable issue that the one-story restriction is enforceable as an equitable servitude under the Werner framework.

                        (iv)      Equitable Issues

Apart from the above conclusion that there is at least a triable issue that the one-story restriction is enforceable, it is important to note that, under the evidence presented in connection with this motion, there is nothing inequitable about enforcing that restriction against the Lowe Defendants. The specific restriction is expressly included in the 1940 Deed and thus in the chain of title. Enforcement of the restriction in the 1940 Deed does not raise recording or constructive knowledge issues such as those addressed in Citizens, supra. Moreover, variations in restrictions from parcel to parcel within the chain of title are generally permitted and enforceable. (See Cebular v. Cooper Arms Homeowners Assn. (2006) 142 Cal.App.4th 106, 122 [non-uniform voting and common area expense allocation enforceable]; Oceanside Community Assn, v. Oceanside Land Co. (1983) 147 Cal.App.3d 166, 175-176 [restriction to golf course use enforceable as equitable servitude].)

            (C)       Application to Lowe Defendants’ Motion

In their amended notice of motion, the Lowe Defendants identify 5 issues to be summarily adjudicated: (Issue 1) “As to Cross-Complainant’s First Cause of Action for Quiet Title, no triable issue of fact exists supporting the adverse claims of Cross-Defendant [Liskin] against Cross-Complainant’s property, specifically the enforceability of the purported ‘one-story restriction’ in the 1940 Deed. Cross-Complainant is therefore entitled to summary adjudication of its First Cause of Action for Quiet Title.” (Issue 2) “As to Cross-Complainant’s Second Cause of Action for Declaratory Relief, no triable issue of fact exists regarding Cross-Complainant’s claim that the purported ‘one story restriction’ in the 1940 Deed is not a valid covenant or equitable servitude. Cross-Complainant is therefore entitled to summary adjudication of its Second Cause of Action for Declaratory Relief.” (Issue 3) “As to Lowe Defendants’ Eighteenth Affirmative Defense, no triable issue of fact exists regarding Lowe Defendants’ Eighteenth Affirmative Defense that the ‘one story restriction’ in the 1940 Deed is not a covenant that runs with the land, and is therefore not enforceable by Liskin. Lowe Defendants are therefore entitled to summary adjudication of their Eighteenth Affirmative Defense.” (Issue 4) “As to Lowe Defendants’ Nineteenth Affirmative Defense, no triable issue of fact exists regarding Lowe Defendants’ Nineteenth Affirmative Defense that the ‘one story restriction’ in the 1940 Deed is not an equitable servitude, and is therefore not enforceable by Liskin. Lowe Defendants are therefore entitled to summary adjudication of their Nineteenth Affirmative Defense.” (Issue 5) “As to Liskin’s Fourth, Eight, Tenth and Third Causes of Action, to the extent those causes of action rely on Lowe Defendants’ threatened and/or actual violation of the ‘one story restriction’ in the 1940 Deed, no triable issue of fact exists because the ‘one story restriction’ is unenforceable, therefore Lowe Defendants could not breach or otherwise violate the ‘one story restriction’, and Liskin did not suffer any harm when Hope Ranch ‘released’ any interest they had in enforcing the ‘one story restriction.’ ”

As to issues 1, 2, 4, and 5, each of these requested adjudications expressly depend on the determination as a matter of law that the One-Story Restriction is unenforceable. As discussed above, the court finds that there are at least triable issues of fact in support of the One-Story Restriction being enforceable as an equitable servitude. For the reasons discussed above, the court will deny these requested adjudications. It is otherwise unnecessary to discuss whether these requested adjudications are all procedurally appropriate.

Issue 3 has the same issue, but it is framed awkwardly, so some additional comment is warranted. Issue 3 seeks summary adjudication of the Lowe Defendants’ eighteenth affirmative defense. Summary adjudication of an affirmative defense is procedurally appropriate to assert “that there is no affirmative defense to the cause of action” or “that there is no merit to an affirmative defense as to any cause of action.” (Code Civ. Proc., § 437c, subd. (f)(1).) Instead of seeking to adjudicate that their own affirmative defense has no merit, the Lowe Defendants seek to adjudicate that this affirmative defense has merit. Such an adjudication is proper only to the extent that it establishes that a cause of action to which the affirmative defense is asserted has no merit. (Code Civ. Proc., § 437c, subd. (o)(2).) While it is undisputed between the parties to this motion that the One-Story Restriction is not enforceable as a covenant running with the land under Civil Code section 1462 or 1468, such a determination does not thereby establish that any cause of action has no merit because, as discussed above, there is evidence supporting the enforceability of the One-Story Restriction as an equitable servitude upon which causes of action may be based. (See Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97–98 [summary adjudication of a claim for punitive damages not available where other facts from those addressed in motion would support a claim for punitive damages].) Summary adjudication will be denied as to the third issue as well.

Accordingly, the court will deny the Lowe Defendants’ motion for summary judgment or summary adjudication in its entirety.

            (D)       Evidentiary Matters

In support of the motion, the Lowe Defendants request that the court take judicial notice of its exhibits 1, 3 through 15, 18, and 19, which are all recorded real estate records. The court grants these requests for judicial notice. (See Evid. Code, § 452, subds. (c), (h); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

In opposition to the motion, Liskin requests that the court take judicial notice of its exhibits 1, 3, 4, 6 through 12, 14, 15, 18, 19, 24, 25, 28, and 32, which are all recorded real estate records. The court grants these requests for judicial notice. Liskin also requests that the court take judicial notice of its exhibit 29, which is a document filed by HRPHA with the California Secretary of State. The court grants this request for judicial notice. (See Evid. Code, § 452, subds. (c), (h).)

In all cases, judicial notice does not extend to the truth of factual matters set forth in such documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

Based upon the disposition discussed above, the court does not rule on the specific evidentiary objections of the parties. (See Code Civ. Proc., § 437c, subd. (q).)

(2)       Association Defendants’ Motion

The Association Defendants move for summary adjudication of Liskin’s first (breach of Governing Documents), second (Breach of Fiduciary Duties), third (Bad Faith), sixth (Fraudulent Concealment), seventh (Cancellation of Instrument), eighth (Enforcement of the 1940 Deed and Governing Documents), and tenth (Injunction) causes of action. As set forth in the Association Defendants’ Notice of Motion, these requested adjudications are based upon three reasons:

“The Association has no obligation to enforce the One-Story Restriction as a matter of law for the following reasons:

            “First, the Association has no right or obligation to enforce the One-Story Restriction under its Governing Documents. The 1940 Deed is not part of the Association’s Governing Documents, and the One-Story Restriction is not a ‘Various Easement’—or any other restriction in its Governing Documents—that the Association is empowered or required to enforce.

            “Second, the One-Story Restriction is not a restrictive covenant that runs with the land under Civil Code sections 1462 or 1468. (Defs.’ First Am. Verified Ans. To Pl.’s First Am. Verified Compl., Fourth Aff. Defense.)

            “Third, the One-Story Restriction is not an enforceable equitable servitude. (Defs.’ First Am. Verified Ans. To Pl.’s First Am. Verified Compl., Fifth Aff. Defense.)” (Notice of Motion, at pp. 2-3.)

            (A)       Enforceable Restriction

With respect to the third reason asserted for summary adjudication, for the same reasons discussed above in denying the motion for summary judgment or for summary adjudication of the Lowe Defendants, the court concludes that there is at least a triable issue of fact that the One-Story Restriction is an enforceable equitable servitude. The court therefore will not grant summary adjudication on the basis of the Association Defendants’ third asserted reason.

With respect to the second reason asserted for summary adjudication, this reason suffers from the same problem as the Lowe Defendants’ third issue, discussed above. It is not now contended by Liskin that the One-Story Restriction is enforceable as a covenant that runs with the land under Civil Code section 1462 or 1468. But the court cannot summarily adjudicate an affirmative defense that does not completely dispose of a cause of action. Accordingly, the court will not grant summary adjudication on the basis of the Association Defendants’ second asserted reason.

With respect to the first reason asserted for summary adjudication, in light of the court’s determinations as to the second and third reasons, analysis of the first reason is limited to assuming that that the One-Story Restriction is an enforceable equitable servitude and determining whether, applying summary judgment standards, HRPHA has the legal ability to enforce the One-Story Restriction.

            (B)       Association Authority

The first reason asserted for summary adjudication is that HRPHA has no “right or obligation” to enforce the One-Story Restriction under its Governing Documents. In opposition to the motion, Liskin argues, among other things, that the One-Story Restriction is enforceable under the terms of the Operative CC&Rs.

As quoted above, section 1.13 of the Operative CC&Rs defines “Governing Documents.” This definition is essentially the same as the definition of “Governing documents” in Civil Code section 4150: “ ‘Governing documents’ means the declaration and any other documents, such as bylaws, operating rules, articles of incorporation, or articles of association, which govern the operation of the common interest development or association.” Both definitions include within the definition “other documents” “which govern the operation of” the common interest development, which here is Hope Ranch. In the moving papers and in reply, the Association Defendants emphasize that “operation of” phrase to distinguish the 1940 Deed.

The Operating CC&Rs, section 1.24 defines “Rules; Regulations” as “Operating rules adopted by the Board as they may be amended from time to time.” The Davis-Stirling Common Interest Development Act (the Act, Civ. Code, § 4000 et seq.) defines “Operating Rule” similarly, as “a regulation adopted by the board that applies generally to the management and operation of the common interest development or the conduct of the business and affairs of the association.” (Civ. Code, § 4340, subd. (a).) The Building Guidelines are a specific set of “rules.” (Operating CC&Rs, §§ 1.06, 9.03.) As quoted above, and also emphasized by the Association Defendants, the Building Guidelines include specific maximum height restrictions, which restrictions vary depending on location. (Building Guidelines, § 4.03(b).) It is therefore clear from a textual point of view that height restrictions are among the rules “which govern the operation of” Hope Ranch. At least to the extent of the definition of section 1.13, the 1940 Deed, as a document containing a restriction “which govern the operation of” Hope Ranch, is not inconsistent with the definition of “Governing Document.”

The Operating CC&Rs generally define “common area” as “[a]ll real property and improvements owned by the Association in fee or under easements or agreements for the common use and enjoyment of the Owners.” (Operating CC&Rs, § 1.08.) Section 4.01 defines “common area” more specifically as comprising both fee property and easements “and other Property Interests.” “Common Area Easements” are defined in section 4.01(b) as “all other real property interests” held or acquired by HRPHA as distinguished from fee property. The first three named categories of “Common Area Easements” refer specifically to easements in the traditional sense, namely, private road easements, utility easements, and bridle trail easements. The fourth category, Various Easements, is “all other easements and rights in property.” The plain language of section 4.01 demonstrates that whether or not a right in property held by HRPHA is an “easement” under real property law, it nonetheless is referred to in the Operative CC&Rs as a “Various Easement” if it is a right in property.

The Association Defendants argue that the One-Story Restriction is not an interest conveyed to HRPHA and HRPHA is not SBE. The right to enforce the One-Story Restriction, however, is an interest in property. (Civ. Code, § 658, subd. (3) [real property includes that which is appurtenant to land], 662 [rights appurtenant to land]; see Southern Cal. Edison Co. v. Bourgerie (1973) 9 Cal.3d 169, 171 [a building restriction constitutes an interest in land]; 6 Miller & Starr, Cal. Real Estate (4th ed. 2024) § 16:27 [servitude is an interest in land].) As the Association Defendants concede, by the Assignment Indenture SBE assigned to HRPHA “rights and powers of enforcement.” (Motion, at p. 18; e.g., Assignment Indenture, recital 7 [including “right and power” “to enforce … restrictions” “contained in deeds”].) For the reasons discussed above with respect to the Lowe Defendants’ motion as to enforceability of the One-Story Restriction, SBE retained the right and power to enforce the 1940 Deed restriction and that retained property right was transferred to the HRPHA.

The Association Defendants further argue that even if, and even though, HRPHA was transferred enforcement rights, HRPHA did not accept any obligation to exercise those enforcement rights. “A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting.” (Civ. Code, § 1589.) Thus, the obligation to exercise these particular enforcement rights exist by virtue of HRPHA’s right to enforce, but only to the same extent as HRPHA would be required to enforce other such rights. The extent of such obligation to exercise enforcement rights is not before the court in this motion.

The foregoing analysis is sufficient to demonstrate that there is at least a triable issue of fact as to whether the Association has a right (or no right) to enforce the One-Story Restriction under its Governing Documents. This conclusion is consistent with Civil Code section 4215, which provides for the liberal construction of “[a]ny deed, declaration, or condominium plan for a common interest development” “to facilitate the operation of the common interest development.” The construction provided here facilitates the operation of the common interest development by confirming the right and power of HRPHA to enforce this building restriction consistent with its more general building guidelines. The motion for summary adjudication will not be granted based upon the first reason asserted for adjudication.

Because the court finds that at least triable issues exist precluding summary adjudication as to each of the reasons asserted for adjudication, the Association Defendants’ motion for summary adjudication will be denied.

            (C)       Evidentiary Matters

In support of the motion, the Association Defendants request that the court take judicial notice of its exhibits A through F, which are all recorded real estate records. The court grants these requests for judicial notice. (See Evid. Code, § 452, subds. (c), (h); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

In opposition to the motion, Liskin requests that the court take judicial notice of its exhibits 1, 2, 3, 9, and 13, which are all recorded real estate records. The court grants these requests for judicial notice. Liskin also requests that the court take judicial notice of its exhibit 12, which is the Tax Assessor’s Parcel Map. The court grants this request for judicial notice. (See Evid. Code, § 452, subd. (c).) Liskin also requests that the court take judicial notice of its exhibit 14, which is a filing with the California Secretary of State. The court grants this request for judicial notice.

(See Evid. Code, § 452, subds. (c), (h).) Liskin also requests that the court take judicial notice of exhibits 10 and 11, HRPHA’s Bylaws and Articles of Incorporation, respectively. The court grants these unopposed requests for judicial notice.

With respect to requests for judicial notice Nos. 5, 6, 7, and 8, the requests are stated as requests for particular factual inferences to be drawn from Liskin’s exhibits 5, 6, 7, and 8, respectively. The court understands these requests to include requests for judicial notice of these documents. Exhibits 5, 6, and 7 are court documents; exhibit 8 is a recorded real estate record. The court takes judicial notice of these documents. (See Evid. Code, § 452, subds. (c), (d)(1), (h).)

“ ‘Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.’ [Citation.] While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. [Citation.] ‘When judicial notice is taken of a document, ... the truthfulness and proper interpretation of the document are disputable.’ [Citation.]” (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

The court denies the requests for judicial notice Nos. 5, 6, 7, and 8 to the extent that the requests seek judicial notice of the truth of facts or factual inferences stated in these documents. The court will, to the extent otherwise admissible, consider these exhibits as evidence.

Based upon the disposition discussed above, the court does not rule on the specific evidentiary objections of the parties. (See Code Civ. Proc., § 437c, subd. (q).)