Katcher v. Home Sav. and Loan Ass'n
| Decision Date | 06 October 1966 |
| Citation | 245 Cal.App.2d 425,53 Cal.Rptr. 923 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Leo KATCHER et al., Plaintiffs and Appellants, v. HOME SAVINGS AND LOAN ASSOCIATION, Defendant and Respondent. Civ. 28695. |
Fadem & Graves and Jerrold A. Fadem, Los Angeles, for plaintiffs and appellants.
Crider, Tilson & Ruppe, McKenna & Fitting, Opal Slater and W. F. McKenna, Los Angeles, for defendant and respondent.
Roger Arnebergh, City Atty., Bourke Jones, Marcus E. Crahan, Jr., Asst. City Attys., Jack L. Wells, Deputy City Atty., for amicus curiae, City of Los Angeles.
This is an appeal from the judgment dismissing plaintiffs' complaint upon the granting of defendant's motion for a summary judgment.
These background facts are undisputed. Plaintiffs are four married couples who own homes situated along Mulholland Drive as it winds along the edge of and near the crest of the Santa Monica Mountains above Laurel Canyon and overlooking the San Fernando Valley. When plaintiffs built or became the owners of these residences they had few neighbors. The San Fernando Valley was then largely undeveloped. The site of plaintiffs' homes commanded a breathtaking, totally unobstructed panoramic view of the valley and its surrounding mountains.
Then defendant, Home Savings and Loan Association, acquired a large parcel of land in Laurel Canyon below plaintiffs. This land extended to and bordered on Mulholland Drive. Defendant sought to subdivide and construct a tract on the part of its land lying on the canyon floor below Mulholland Drive. At this point the paved portion of the road was only 24 feet in width. The remainder of the 100-foot right of way of the City of Los Angeles was unimproved and, in part, consisted of the air space over the steeply sloped ravine which ran down to defendant's property. At some points this ravine extended down from the road as much as 100 feet.
The City of Los Angeles set, as one of the conditions for approval of defendant's tract, that defendant widen the improved portion of Mulholland Drive to the width of the easement right-of-way. This was to be accomplished by using an earth fill as a base for the road. The fill would extend from the floor of the canyon up to the level of the improved portion of Mulholland Drive. Upon learning of the city's requirements, defendant revised its construction plans to include six terraced building lots, each approximately 100 feet in length, to be located on the fill immediately adjacent to the extended portion of Mulholland Drive. The city issued defendant a grading permit for this purpose and the fill, begun in January 1962, was completed in May 1962. The six lots were subsequently sold by defendant and the construction of homes was begun. The effect of this widening of the plateau along which Mulholland Drive is located, and the construction of homes on the terraced lots created by the fill, was to destroy plaintiffs' panoramic view. Plaintiffs brought this action after the building pads for the six lots had been completed and the fill was in place.
In plaintiffs' amended complaint, filed in February 1963, it is alleged that, when plaintiffs became the owners of their properties along Mulholland Drive, each acquired vested property rights, as provided for in the Comprehensive Zoning Plan of the City of Los Angeles, to the panoramic view, the privacy and naturalness of the setting, and to the 'extraordinary light and air'; defendant violated these rights by the construction of its 'veritable man made mountain' in violation of the city's Comprehensive Zoning Plan; an injunction should be granted requiring defendant to remove this 'mountain'.
Plaintiffs further allege that they suffered money damages as the result of defendant's negligence in not conducting its development with regard for the rights of the other homeowners in the area and in accordance with the zoning plan; that as a proximate result of defendant's acts plaintiffs' privacy and panoramic view were destroyed and their free enjoyment of light and air was impaired; also, that plaintiffs suffered physical distress from the 'noise bombardment' and the invasion of their nasal passages and lungs by dust and dirt stirred up during the filling process.
Defendant answered denying the material allegations of the complaint and setting up affirmative defenses. On October 23, 1963, defendant filed its notice of motion for summary judgment. Affidavits in support of and in opposition to the motion were filed. The court below heard the motion on November 16, 1963, made its order granting it on January 20, 1964, and the judgment of dismissal from which plaintiffs bring this appeal followed on the same date.
In opposing the motion in the court below, plaintiffs, in their affidavits filed in opposition, did not contend that defendant failed to perform its grading operation in accordance with the plans and specifications filed with the appropriate governmental authority and pursuant to permits issued for the work shown thereon, but rather, maintained that defendant was operating with permits which were not properly issued and were therefore invalid. Plaintiffs reached this conclusion on the theory that the work proposed to be performed by defendant was not permitted by the applicable provisions of the Los Angeles Municipal Code. The code, it was argued, prohibited the construction of any 'structure' in excess of 45 feet in height in an R1 zone such as where plaintiffs' property was located; the earth fill constructed by defendant must be regarded as a 'structure' within the meaning of the code; and since defendant's fill admittedly reached depths of 100 feet in some places, it was therefore prohibited in the R1 zone. Plaintiffs further maintained that defendant's acts constituted actionable negligence and that it was guilty of a nuisance.
At the hearing on the motion, in addition to the affidavits and counteraffidavits introduced, the court had before it the pertinent zoning ordinances and codes, the plans and specifications for defendant's tract, and the permits issued defendant.
The trial court, in a memorandum opinion handed down in conjunction with the order granting defendant's motion for summary judgment, concluded that no issue of fact was presented; that the gravamen of plaintiffs stated causes of action involved the legal interpretation of the applicable municipal code and related questions...
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