Cutujian v. Benedict Hills Estates Assn.

• Decision Date: 22 January 1996
• Docket Number: B086456,Nos. B083616,s. B083616
• Citation: Cutujian v. Benedict Hills Estates Assn., 49 Cal.Rptr.2d 166, 41 Cal.App.4th 1379 (Cal. App. 1996)
• Court: California Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 460, 96 Daily Journal D.A.R. 730 Eric K. CUTUJIAN, Plaintiff and Appellant, v. BENEDICT HILLS ESTATES ASSOCIATION, Defendant and Respondent.

Page 166

49 Cal.Rptr.2d 166

41 Cal.App.4th 1379, 96 Cal. Daily Op. Serv. 460,

96 Daily Journal D.A.R. 730

Eric K. CUTUJIAN, Plaintiff and Appellant, v. BENEDICT HILLS ESTATES ASSOCIATION, Defendant and Respondent.

Nos. B083616, B086456.

Court of Appeal, Second District, Division 3, California.

Jan. 22, 1996.

Review Denied May 15, 1996.

David M. Browne, Los Angeles, Rowell & Tessier and John D. Rowell, Glendale, for Plaintiff and Appellant.

Gary M. Gitlin, Calabasas, for Defendant and Respondent.

CROSKEY, Associate Justice.

In these consolidated appeals, Eric K. Cutujian appeals from a judgment of dismissal after the sustaining without leave to amend of a demurrer to his third amended complaint for nuisance, and from an order after judgment awarding $30,000 in attorney fees, plus costs, to the defendant, Benedict Hills Estates Association ("the Association"). The trial court's order was based on the conclusion that Cutujian's complaint had not been filed within the relevant statutory period.

However, we conclude that the gravamen of Cutujian's claim is based on the Association's violation of a covenant running with the land and the statute of limitations did not commence to run until April of 1988 when Cutujian made a demand for performance under the covenant. Since Cutujian filed his complaint less than two years later, his action is timely and was improperly dismissed. We therefore reverse both the judgment and the award of attorney fees and costs.

FACTUAL AND PROCEDURAL BACKGROUND

In 1988, Cutujian and his brother jointly purchased a partially improved residential lot in Benedict Hills Estates (hereafter, "BHE"), a common interest residential development in the County of Los Angeles, located between the cities of Beverly Hills and Los Angeles. The development was subject to a recorded Declaration of Conditions, Covenants and Restrictions ("CC & R's") and was governed by the Association. Among the Association's duties under the CC & R's is the maintenance of natural and manmade slopes and corresponding drainage ditches both in the common areas and within individual lots.

BHE was originated in 1976, when the first developer subdivided and graded 229 building pads on two tracts of real property located south of Mulholland Drive and east of Benedict Canyon in the County of Los Angeles. The Association was formed shortly after the development began; the CC & R's were recorded on January 21, 1976. At the time this action commenced, residences had been built on approximately 90% of the 229 lots.

Some time between 1976 and 1978, a surface slump occurred on the fill slope in the lot which later was purchased by Cutujian. From that time until Cutujian purchased the lot, the lot remained vacant, and no owner attempted to build on it.

Cutujian purchased his lot, located at 3226 Hutton Drive, in early 1988 from Kathleen McCarthy, who apparently purchased it from one of the developers. On April 4, 1988, while escrow was pending, Cutujian demanded that the Association repair the damage to the slope on his lot, as required by the CC & R's. The Association did not positively refuse to repair the slump, but stated it believed the slump could be repaired for approximately $3,000, a cost which Cutujian believed to be unrealistically low. After several discussions of costs and the feasibility of repairing the slump at any particular cost, Cutujian concluded the Association was not going to do the repair. He therefore proceeded to have the slump repaired at his own expense and thereafter initiated the present action to recover his costs.

Cutujian filed his original complaint on August 8, 1989. After the sustaining of a demurrer, Cutujian filed a first amended complaint, and thereafter, upon stipulation by the parties, he filed a second amended complaint on April 29, 1992.

The second amended complaint sought damages against the Association for (1) breach of the CC & R's which govern BHE, and (2) negligence. On November 9, 1993, the Association moved for summary judgment, alleging Cutujian's action was barred by the statute of limitations.

While the motion for summary judgment was pending, Cutujian successfully sought leave of the court to file a third amended complaint. In the third amended complaint, Cutujian recast his action as one for damages for a continuing nuisance arising from violation of an equitable servitude, but he pled essentially the same facts as were pled in previous pleadings. The Association demurred, again raising the statute of limitations.

The trial court found the action was barred by the statute of limitations and sustained the demurrer to the third amended complaint without leave to amend. A judgment of dismissal was entered on March 17, 1994. The trial court thereafter awarded costs and attorney fees to the Association as the prevailing party in the action. These timely appeals followed.

CONTENTIONS ON APPEAL

Cutujian contends that: (1) his third amended complaint was for a continuing nuisance, not for breach of a written instrument; (2) his claim for damages was filed within the time allowed for an action for continuing nuisance; (3) even if his claim is in truth a claim for breach of a written instrument, it is nevertheless timely, because the instrument created covenants running with the land; ¹ (4) his claims cannot in fairness be affected by the inaction of his predecessors in interest; (5) the trial court awarded excessive and unauthorized attorney fees to the Association.

DISCUSSION

1. Standard of Review

The scope of our review is limited to a determination of whether the Association's demurrer was erroneously sustained without leave to amend and whether such a determination was an abuse of discretion. All material facts pleaded in the complaint and those which arise by reasonable implication are thus deemed true. We determine the legal sufficiency of the alleged facts to state a cause of action. (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1; Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 496, fn. 2, 229 Cal.Rptr. 456, 723 P.2d 573.) When a demurrer is sustained without leave to amend, we decide whether there is a reasonable probability that the defect can be cured by amendment; if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. (Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1701, 39 Cal.Rptr.2d 65.)

2. Commencement of Statute of Limitations For Enforcement of Covenant in Recorded CC & R's

Cutujian contends the trial court erred in finding his action time-barred, because the surface slump on his property was a continuing nuisance which the Association had a duty to abate, pursuant to the CC & R's. The Association contends that (1) Cutujian was bound by admissions, which Cutujian made in previous pleadings, that the surface slump at 3226 Hutton Drive occurred between 1976 and 1978; (2) the slump was not an abatable nuisance; and (3) consequently, Cutujian's action is barred by the three-year statute of limitations governing an action for permanent nuisance. (Cf. Spar v. Pacific Bell (1991) 235 Cal.App.3d 1480, 1485, 1 Cal.Rptr.2d 480.) In the alternative, the Association argues that Cutujian's third amended complaint was a sham pleading, filed in order to avoid the effect of his previous admissions, which the Association contends conclusively established that the action was barred by the four-year statute of limitations for actions on a written instrument (Code Civ.Proc., § 337) or the three-year statute of limitations for injury to real property (Code Civ.Proc., § 338, subd. (b)).

As we shall explain, we conclude the statute of limitations to enforce the disputed provision of the CC & R's began to run in 1988, when Cutujian demanded that the Association fulfill its obligation to repair the slope damage at 3226 Hutton Drive. Consequently, we do not find Cutujian's action to be time-barred.

Unless they are unreasonable, the CC & R's in the declaration governing a common interest development may be enforced as equitable servitudes and as covenants running with the land. (Civ.Code, §§ 1354, subd. (a), 1460 et seq.; Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 375-376, 33 Cal.Rptr.2d 63, 878 P.2d 1275.) The CC & R's benefit and bind the owners of all separate interests in the project. (Civ.Code, § 1354, subd. (a).) Unless the declaration provides otherwise, CC & R's may be enforced by any owner of a separate interest, by the association or by both. (Civ.Code, §§ 1354, 1460 et seq.; Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at pp. 375-376, 33 Cal.Rptr.2d 63, 878 P.2d 1275; Franklin v. Marie Antoinette Condominium Assn. (1993) 19 Cal.App.4th 824, 832, fn. 11, 23 Cal.Rptr.2d 744; see generally Sproul & Rosenberry, Advising Cal. Condominium and Homeowners Associations (Cont.Ed.Bar 1991) § 6.43, p. 297; 4 Witkin, Summary of Cal.Law (9th ed. 1987) Real Property, § 328, p. 529.) A party who is damaged by a violation of the CC & R's may seek money damages. (Mackinder v. OSCA Development Co. (1984) 151 Cal.App.3d 728, 737, 198 Cal.Rptr. 864; see generally Sproul & Rosenberry, Advising Cal. Condominium and Homeowners Associations, supra, § 7.37, p. 347.) The statute of limitations for such an action is that for an action arising from a written instrument and is four years. (Code Civ.Proc., § 337.)

The issue in this case is not what statute of limitations applies to Cutujian's action, but when the statute of limitations commenced to run. No California statute or judicial decision directly addresses either the question of when the statute commences for an action to enforce CC & R's, or the more general question of when the statute commences for enforcement of a covenant running with the land which requires the performance of an affirmative act. As we have observed above, CC & R's are...