Nellie Gail Ranch Owners Ass'n v. McMullin

• Decision Date: 03 October 2016
• Docket Number: G051244
• Citation: 4 Cal.App.5th 982,209 Cal.Rptr.3d 658
• Court: California Court of Appeals Court of Appeals
• Parties: NELLIE GAIL RANCH OWNERS ASSOCIATION, Plaintiff, Cross–Defendant and Respondent, v. Donald G. MCMULLIN et al., Defendants, Cross–complainants and Appellants.

4 Cal.App.5th 982

209 Cal.Rptr.3d 658

NELLIE GAIL RANCH OWNERS ASSOCIATION, Plaintiff, Cross–Defendant and Respondent,

v.Donald G. MCMULLIN et al., Defendants, Cross–complainants and Appellants.

G051244

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

Filed October 3, 2016

As Modified on Denial of Rehearing October 27, 2016

Everett L. Skillman for Defendants, Cross-complainants and Appellants.

Neuland, Whitney & Michael, Frederick T. Whitney, Rancho Santa Margarita, and Jane A. Gaba, Irvine, for Plaintiff, Cross-defendants and Respondent.

OPINION

ARONSON

, J.

Plaintiff, cross-defendant, and respondent Nellie Gail Ranch Owners Association (Nellie Gail) sued defendants, cross-complainants, and appellants Donald G. McMullin and Cynthia Jensen–McMullin (collectively, McMullins)¹ to quiet title and compel the McMullins to remove a retaining wall and other improvements they built without Nellie Gail's approval on more than 6,000 square feet of common area Nellie Gail owned adjacent to the McMullins' property. Following a bench trial, the trial court entered judgment for Nellie Gail and awarded Nellie Gail its attorney fees. The McMullins appeal, claiming the trial court should have quieted title in them or at least granted them an equitable easement over the disputed property. We disagree and affirm the trial court's judgment.

First, the McMullins contend Nellie Gail was equitably estopped to bring this quiet title action because it told the McMullins it would not pursue construction of the wall as a violation of the governing declaration of covenants, conditions, and restrictions (CC & R's) and instructed the McMullins to work with Nellie Gail's architect to develop a landscaping, irrigation, and drainage plan to screen the wall from view. The McMullins, however, forfeited this claim by failing to assert it at trial. Moreover, equitable estoppel requires the party asserting it to be ignorant of the true facts and to justifiably rely on the conduct or statements of another who has knowledge of those facts. The evidence supports the conclusion Nellie Gail did not know all of the facts and it made its statements after the McMullins knowingly constructed the retaining wall and other improvements on Nellie Gail's property without obtaining the required written approvals from Nellie Gail. The McMullins therefore could not justifiably rely on Nellie Gail's statements even if they did not forfeit the claim.

Second, the McMullins contend the trial court erred when it rejected their adverse possession claim because the McMullins failed to pay property taxes on the disputed property. The McMullins contend the disputed property had no value, and therefore they were excused from establishing that essential element. The McMullins were excused from paying property taxes only if they established no property taxes were levied or assessed on the disputed property during the relevant five-year period. Substantial evidence, however, supports the conclusion the disputed property had a value and property taxes were levied against it, but were assessed to the individual property owners in the community consistent with the law concerning property taxes on common areas owned by homeowners associations.

Next, the McMullins contend the trial court erred in granting Nellie Gail a mandatory injunction authorizing it to remove the retaining wall and other improvements at the McMullins' expense, rather than requiring Nellie Gail to accept monetary damages as compensation for an equitable easement that would allow the McMullins to maintain the wall and improvements. A property owner generally is entitled to a mandatory injunction requiring an adjacent owner to remove an encroachment, but a trial court has discretion to deny an injunction and grant an equitable easement if the encroacher acted innocently and the balancing of the hardships greatly favors the encroacher. Substantial evidence supports the trial court's conclusion the McMullins were not innocent encroachers and therefore the court properly granted Nellie Gail an injunction.

Finally, the McMullins challenge the trial court's award of attorney fees to Nellie Gail, but we lack jurisdiction to review that award because the court made it after entry of judgment and the McMullins neither identified the award in their notice of appeal nor filed a separate notice of appeal. We therefore dismiss that portion of the appeal challenging the fees award.

I

FACTS AND PROCEDURAL HISTORY

Nellie Gail Ranch is a 1,407–unit residential planned development on approximately 1,350 acres in Laguna Hills, California. Nellie Gail is the homeowners association the developer formed to own the common areas and administer the community's CC & R's. The community has horse trails, an equestrian center, parks, tennis courts, and other common areas Nellie Gail manages.

In December 2000, the McMullins purchased a home in Nellie Gail Ranch located at the end of a cul-de-sac on a hilltop with canyon views. The back of their property slopes down towards and abuts lot 274, which is an approximately 15–acre canyon lot owned by Nellie Gail and dedicated as open space. One of the community's horse trails runs across lot 274 directly behind the McMullins' property. The back left corner of the McMullins' property also touches lot 273, which is an approximately 5–acre lot owned by Nellie Gail that is home to the community's largest park.

The McMullins' backyard has three retaining walls used to provide level, useable space because of their property's sloping nature. There is a short three-foot retaining wall that separates their house and patio from their grass area. A second, nearly six-foot retaining wall separates their house, patio and grass area from a lower area where they have a swimming pool and deck.

The third retaining wall is a six-foot wall that separates all of these areas from the slope that leads to lots 273 and 274. Beyond this final retaining wall is a wrought iron fence that encircles the entire back portion of the McMullins' property. The area between the final retaining wall and the wrought iron fence has a considerable slope.

Nellie Gail's CC & R's and its Architectural Review Committee Guidelines required homeowners to obtain written approval from the Architectural Review Committee (Review Committee) before constructing or making significant alterations to any improvements on their property. In January 2008, the McMullins applied to the Review Committee to replaster their swimming pool, redo the pool deck, construct a bar area near the pool, install a solar heater for the pool, replace the wrought iron fence with an eight-foot retaining wall, backfill behind that new wall, install a large patio slab or sports court and garden in the flat area created, and build a staircase from the pool area down to the flat area behind the new retaining wall. The application included a site plan Donald prepared showing the location of the proposed improvements, and depicting the new retaining wall would be constructed in the same location as the existing wrought iron fence. The plan identified the property lines between the McMullins' property and their neighbors on either side, but did not identify the rear property line between the McMullins' property and lot 274. The plan included two dashed lines that extended from the existing six-foot retaining wall that surrounded the back yard to the side property lines, but did not explain what those lines represented. Nellie Gail later discovered these unlabeled, dashed lines showed the rear property line's location.

In February 2008, the Review Committee sent the McMullins' a letter denying their application and explaining how it failed to comply with the CC & R's and the committee's guidelines. The letter also informed the McMullins that “a fully dimensioned site plan showing property lines, easement areas, setbacks and fully defined landscaping and drainage will be needed [for any future applications].”

Two weeks later, Donald prepared and submitted a new application with a revised, more detailed site plan. That plan again represented the new retaining wall would be constructed in the same location as the existing wrought iron fence, and also identified the property lines between the McMullins' property and their neighbors, but not the property line between the McMullins' property and Nellie Gail's lot 274. The plan also included the same dashed lines extending from the end of the existing, six-foot retaining wall without explaining what those lines represented. In March 2008, the Review Committee sent the McMullins a letter denying the revised application and explaining the reasons for the denial. This letter again notified the McMullins that any future application must be accompanied by “a fully dimensioned site plan showing property lines” and other necessary information “from a licensed Civil Engineer.” The committee's letter also suggested the McMullins submit a new application limited to just the pool-related improvements if they wanted to get started on their project.

The McMullins followed the Review Committee's suggestion and submitted a new application limited to the pool-related improvements only, which included a staircase from the pool area down to the slope behind the existing six-foot retaining wall. In April 2008, the Review Committee sent the McMullins a letter approving this application subject to a few conditions, including one that prohibited the McMullins from modifying the grade on the slope behind their existing retaining wall.

Almost a year later, Cynthia went to the Review Committee's office to submit a new application and plans for the retaining wall and sports court. She spoke with Sandi Erickson, the Review Committee's community relations person. Cynthia testified Erickson said the plans were not necessary because the McMullins' application already was approved. Cynthia asked Erickson to double check her information, and after looking on Nellie Gail's...