Ezer v. Fuchsloch

• Decision Date: 14 December 1979
• Citation: 99 Cal.App.3d 849,160 Cal.Rptr. 486
• Court: California Court of Appeals Court of Appeals
• Parties: , 13 A.L.R.4th 1333 Mitchel J. EZER and Frances L. Ezer, Plaintiffs and Respondents, v. Heinz FUCHSLOCH et al., Defendants and Appellants. Civ. 53420.

Page 486

160 Cal.Rptr. 486

99 Cal.App.3d 849, 13 A.L.R.4th 1333

Mitchel J. EZER and Frances L. Ezer, Plaintiffs and Respondents, v. Heinz FUCHSLOCH et al., Defendants and Appellants.

Civ. 53420.

Court of Appeal, Second District, Division 4, California.

Dec. 14, 1979.

Roy L. Kight, Venice, for defendants and appellants Fuchsloch

Rich & Ezer and L. Douglas Brown, Los Angeles, for plaintiff and respondent Mitchel J. Ezer.

Frances L. Ezer, plaintiff and respondent in pro. per.

JEFFERSON, Associate Justice.

This is an appeal by defendants Heinz Fuchsloch and Christine Fuchsloch from a mandatory injunction issued against them following a trial on a complaint filed against them by plaintiffs Mitchel J. Ezer and Frances L. Ezer. The dispute results from the fact that plaintiffs and defendants are neighbors residing in a hillside area located in Pacific Palisades. The complaint alleged that the improved property of plaintiffs was directly opposite of the defendants' improved property and property owned by the Staleys, also named as defendants in the action. The complaint further alleged that, on May 4, 1962, defendant Marquez Knolls, Inc., ¹ the owner of all of the lots in the tract of which the properties of plaintiffs, the defendants Fuchslochs and Staleys are a part, recorded a declaration of restrictions.

The restrictions provided that no tree, shrub, or other landscaping should be planted that would at present or in the future obstruct the view from any other lot. The plaintiffs alleged that the trees growing on the Fuchsloch and the Staley properties had grown to such a height that they were almost completely obstructing the view of the Pacific Ocean and the surrounding areas from plaintiffs' property. Plaintiffs sought a mandatory injunction requiring the Fuchsloch and Staley defendants to trim the trees on their respective properties so that such trees no longer obstructed the view from plaintiffs' property. The Fuchsloch defendants filed an answer which consisted of general and specific denials of the allegations contained in plaintiffs' complaint. ²

Following trial, the court granted a mandatory injunction against the Fuchsloch and Staley defendants. With respect to the Fuchsloch defendants, the injunction order these defendants to cut down to the level of the roof of their house all trees and shrubs located on the property which appeared on a particular photograph which had been received into evidence as an exhibit. The injunction further ordered the Fuchsloch defendants to thereafter keep their trees and shrubs cut so that they did not grow above the rooftop of their home.

On this appeal, the Fuchsloch defendants contend that the dispute between the parties relates primarily to a specific pine tree which is approximately 25 feet in height and stands in the center of the back yard of defendants' property directly behind their house.

Basically, defendants assert four contentions in seeking a reversal of the judgment. First, defendants assert that the mandatory Plaintiffs, as respondents on appeal, renew their motion to dismiss defendants' appeal.

injunction order[99 Cal.App.3d 855] constitutes an abuse of judicial discretion as being unjust, unreasonable, arbitrary and contrary to public policy and public good. Second, defendants claim that the trial court misinterpreted the restrictive covenant document. Third, defendants assert that the trial court failed to give adequate consideration to the rights of the tree as distinct from the rights of the individual litigants. Fourth, the defendants claim that the plaintiffs are barred by the doctrines of laches and waiver.

We consider first the dismissal-of-appeal motion.

I PLAINTIFFS' MOTION TO DISMISS DEFENDANTS' APPEAL

During the pendency of this appeal plaintiffs filed a previous motion for a dismissal of the appeal. This motion was denied without prejudice. Plaintiffs devote a substantial portion of their brief to the proposition that the court's minute order of November 10, 1977, was an Order granting an injunction, made appealable by Code of Civil Procedure section 904.1, subdivision (f), and that defendants' notice of appeal, filed March 3, 1978, was therefore not timely. In this court's prior order denying, without prejudice, plaintiffs' motion to dismiss defendants' appeal, it was pointed out that the minute order of November 10 was Not a minute order granting an injunction but a notice of intended decision which would not be effective until entry of a formal judgment. (See Code Civ.Proc., § 632 and rule 232(a), Cal.Rules of Court.) The first formal judgment or order granting an injunction was signed and filed by the trial judge and entered on January 4, 1978. It bore the label, "Mandatory Injunction." The defendants' notice of appeal, filed March 3, 1978, was therefore timely under rule 2(a) of the California Rules of Court, with respect to the mandatory injunction of January 4, 1978.

Plaintiffs now contend that the mandatory injunction of January 4, 1978, was neither an appealable order for an injunction (Code Civ.Proc., § 904.1, subd. (f)), nor an appealable final judgment (Code Civ.Proc., § 904.1, subd. (a)) in this action because a subsequent judgment in the action was entered on June 29, 1979. It is the June 29 judgment which the plaintiffs seek to label as the only final judgment from which an appeal may be taken.

Plaintiffs assert that, for purposes of appeal, there is a difference between an Order granting an injunction and the Injunction itself. Plaintiffs thus cite cases such as Monterey Club v. Superior Court (1941) 44 Cal.App.2d 351, 112 P.2d 321 and Meehan v. Hopps (1955) 45 Cal.2d 213, 288 P.2d 267, as holding that it is the Order granting the injunction, and Not the writ of injunction itself, which is appealable.

An examination of the cases cited by plaintiffs indicate that such cases do not make a distinction between an order granting an injunction and a writ of injunction, a judgment Of injunction, or an order Of injunction for purposes of denominating the appealable order or judgment. An injunction is defined in Code of Civil Procedure section 525. This section provides: "An injunction is a writ or order requiring a person to refrain from a particular act. . . ." In view of the language of Code of Civil Procedure section 525, it is understandable that Code of Civil Procedure section 904.1, subdivision (f), uses the language that an appeal may be taken from an Order granting an injunction. However, an injunction, as a writ or order, comes within the definition of a judgment. Code of Civil Procedure section 577 provides that "(a) judgment is the final determination of the rights of the parties in an action or proceeding." An injunction as a writ, order or judgment comes within the definition of "judgment" set forth in Code of Civil Procedure section 577.

In the case at bench it is clear that the mandatory-injunction document, which was signed by the judge and entered on January 4, constituted a final judgment which was an appealable judgment under Code of Civil Procedure section 904.1, subdivision (a). The label, "Mandatory Injunction," placed on the document, has no relevancy in determining whether the document is such that it comes within the definition of a "judgment." If the document constitutes a "final determination of the rights of the parties in an action or proceeding," it constitutes a "judgment" as defined by Code of Civil Procedure section 577. The form of the final determination whether it be an order for the recovery of money or an order compelling a party to do or refrain from doing an act does not change the character of the document as a judgment.

Prior to the final judgment of mandatory injunction, entered on January 4, 1978, the trial court had made no order granting an injunction. The November 10 minute order was simply an announcement of intended decision. As indicated in rule 232(a) of the California Rules of Court, such "announcement of intended decision shall not constitute a judgment and shall not be binding on the court." It merely starts the time running on a request for findings. (Cal.Rules of Court, rule 232(b).) A minute entry of a notice or announcement of intended decision can be considered at best as a preliminary order looking forward to a formal judgment. As a preliminary order, it is not appealable.

We recognize that, in some situations, it is appropriate for a trial court, by minute entry, to make an order granting an injunction, which would be an appealable order under Code of Civil Procedure, section 904.1, subdivision (f). Such a situation was presented in Meehan v. Hopps, supra, 45 Cal.2d 213, 288 P.2d 267. In Meehan, the defendant Hopps, in an action seeking an accounting, moved to disqualify plaintiffs' counsel because of his former representation of defendant. By minute order, the trial court denied the motion. The Meehan court held that the minute order was an order Refusing to grant an injunction and, as such, was an appealable order ³ "(b)ecause the trial court's order denying Hopps' motion left nothing further of a judicial nature for a final determination of his rights regarding opposing counsel, . . ." (Id. at p. 217, 288 P.2d p. 270).

It is now asserted by plaintiffs that the mandatory injunction executed by the court on January 4, 1978, cannot be deemed a final judgment for purposes of appeal. Plaintiffs point out that on June 29, 1979, a document, appropriately labelled a "judgment," was signed by the trial judge and duly entered as a part of the within action. It is plaintiffs' position that the June 29 judgment must be construed as the only final judgment that has been made in the case at bench.

A certified copy of the June 29 judgment is attached to plaintiffs' brief and plaintiffs request that we take judicial notice of this June 29 judgment pursuant to the provisions of sections 452, subdivision (d), and 459 of the Evidence Code.

We have taken...