Guttman v. Howard Homes, Inc.

• Decision Date: 20 April 1966
• Citation: 241 Cal.App.2d 616,50 Cal.Rptr. 769
• Court: California Court of Appeals Court of Appeals
• Parties: Henry H. GUTTMAN and Katherine Kolb Guttman, Plaintiffs and Appellants, v. HOWARD HOMES, INC., Maximilian Roven, Abraham Spiegel, Defendants and Respondents. Civ. 28468.

Page 769

50 Cal.Rptr. 769

241 Cal.App.2d 616

Henry H. GUTTMAN and Katherine Kolb Guttman, Plaintiffs and Appellants, v. HOWARD HOMES, INC., Maximilian Roven, Abraham Spiegel, Defendants and Respondents.

Civ. 28468.

District Court of Appeal, Second District Division 2, California.

April 20, 1966.

Hearing Denied June 17, 1966.

Morris Lavine, Los Angeles, for appellants.

Joseph A. Ball, Long Beach, for respondents.

ROTH, Presiding Justice.

On August 17, 1954 appellants Henry H. Guttman and Katherine Guttman owned approximately six acres of land on the corner of Sunset Boulevard and Alpine Drive in the City of Beverly Hills. Appellants' home was on the northerly portion of the grounds. On the date mentioned appellants conveyed by grant deed the southerly portion of the property to the predecessor of respondent Howard Homes, Inc. and its two sole shareholders, Maximilian Roven and Abraham Spiegel.

The grant deed described the property as lots 2, 3, and 4 of Tract 14531 and contained the following restrictions:

'1) The lots herein described and conveyed shall be used for the erection and construction of no more than two (2) one-story residences and garages thereon. No part of residence is to be erected and constructed on all or any portion of Lot 2, (the northernmost lot of the purchased property) shall be nearer than thirty (30) feet from the northerly boundary of said Lot 2.

'2) No driveway shall be constructed, maintained or used along and/or parallel to any portion of the Northerly boundary of Lot 2, except in front of said residences, nor shall any driveway extend beyond the rear of each residence hereafter erected, constructed or placed on all or any of the lots herein described and conveyed.

'4) It is further convenanted and agreed that upon the breach of any of the foregoing conditions and restrictions prior to the 10th day of August, 1974, the title to said premises shall immediately, ipso facto, revert to and vest in the grantors, their heirs, assigns or successors in interest * * *.'

Subsequent to the purchase of the property by respondents, the lots purchased were redesignated Lots 1 and 2 by the City of Beverly Hills, Lot 1 being the southernmost portion of the property, situated on the corner of Sunset and Alpine (running east and west on Sunset, running north and south on Alpine), and Lot 2 situated on Alpine between Lot 1 and the Guttman home.

Respondents engaged Mr. Neutra, an architect, to design two residences for the property. Such plants (Neutra plans) were made projecting a home for Spiegel on Lot 1 and another residence for Roven on Lot 2. These Neutra plans were submitted to appellant Guttman. He refused to and did not approve. Respondents then sued in declaratory relief to determine whether the Neutra plans conformed to the restrictions in the deed. It was finally determined that with a few modifications the Neutra plans did conform. (Howard Homes, Inc. v. Guttman, 190 Cal.App.2d 526, 12 Cal.Rptr. 244.)

Before said decision became final, respondents abandoned the Neutra plans and had new and somewhat different plans drawn by an architect in Neutra's office named Fisher (Fisher plans).

Appellants timely warned respondents that they would proceed with the Fisher plans at their peril. Respondents commenced construction under the Fisher plans. Appellants, asserting that the restrictions were violated, brought this action to enforce the reversion.

The primary issues decisive of this appeal are whether the restrictions were violated. Respondents contend there is no violation, and further that the suit at bench is barred by res judicata or collateral estoppel by reason of the prior judgment. (Guttman, supra.)

At the conclusion of appellants' case in chief, respondents moved for judgment under Code of Civil Procedure, § 631.8 (added by Stats.1961). The motion was granted, and the trial judge found for respondents.

A judgment on a motion made pursuant to section 631.8 of the Code of Civil Procedure is not a motion for nonsuit. Our function in reviewing such a judgment is the same as though it were made after a plenary trial--that is, whether it is supported by any competent and substantial evidence. (Wooliscraft v. Starr, 225 Cal.App.2d 667, 669, 37 Cal.Rptr. 570.)

Appellants contend that the judgment was contrary to the evidence and that collateral estoppel and res judicata are inapplicable to the case at bench because of the change in plans.

We make no decision on the issues of res judicata and estoppel. Our review of the record and the exhibits convinces us that the judgment is amply supported by the evidence.

The evidence shows that the land upon which the homes were built slopes upwards as one travels northward from Sunset Boulevard to the Guttman home. The difference in height between the southernmost end of Lot 1 and the Guttman home is 45 feet. Most of the rise occurs in respect of Lot 2. Both the Fisher and Neutra plans required a grading cut in Lot 2. The cut created two level terraces upon which the Roven home is built.

A portion of the Roven residence resting on the upper terrace of Lot 2 is built on one level, but extends over the lower terrace where the other portion is built and in this manner occupies two levels. Each portion of the structure is approximately 10 feet in height. The structure was designed in this fashion to compensate for the descent in the grade under the portion of the structure built on the upper terrace.

The residence contains approximately 15,000 square feet, 5000 of which are...