Posey v. Leavitt, No. E005306

CourtCalifornia Court of Appeals
Writing for the CourtHOLLENHORST; The Leavitts contend that, under real estate and corporate law principles, the homeowner's association owned the common area, and that the board of directors therefore had the power to sell, transfer, or, in this case; DABNEY, Acting P.J
Citation280 Cal.Rptr. 568,229 Cal.App.3d 1236
PartiesJ. Thornton POSEY, as Trustee, etc., Plaintiff and Appellant, v. David K. LEAVITT, et al., Defendants and Respondents.
Docket NumberNo. E005306
Decision Date02 May 1991

Page 568

280 Cal.Rptr. 568
229 Cal.App.3d 1236
J. Thornton POSEY, as Trustee, etc., Plaintiff and Appellant,
v.
David K. LEAVITT, et al., Defendants and Respondents.
No. E005306.
Court of Appeal, Fourth District, Division 2, California.
May 2, 1991.

[229 Cal.App.3d 1240] Iwasaki, Thomas & Sheffield and Bruce T. McIntosh, Los Angeles, for plaintiff and appellant.

Honey Kessler Amado, Beverly Hills, for defendants and respondents.

OPINION

HOLLENHORST, Associate Justice.

Plaintiff Posey, owner of a condominium at Lake Arrowhead, filed this action against Mr. and Mrs. Leavitt, owners of another condominium in the same development. Mr. Posey contended that the Leavitts built a deck extension on the side of their condominium that encroached the common area and obstructed his view. Mr. Posey also sued his condominium association for breach of fiduciary duty.

Certain issues were presented to the jury on special interrogatories, and the trial court entered a judgment in favor of the Leavitts and against Mr. Posey. However, the jury awarded Mr. Posey $30,000 damages against the association.

ISSUES

Mr. Posey appeals, contending that the trial court failed to rule on certain equitable issues and misconceived its duty in ruling on the claims for injunctive relief. Specifically, he contends that the trial court erred in submitting all legal and equitable issues to the jury, in failing to consider that the jury's decision was only advisory on the equitable issues, in failing to make its own factual determinations, and in failing to issue a statement of decision. Secondly, he argues that the stipulation of the parties that the deck encroached on the common area should have led to findings of trespass and nuisance as a matter of law. He also contends that the Leavitts cannot rely on the board's ratification of its consent to the deck construction. Mr. Posey also raises issues concerning jury instructions.

THE COMPLAINT

In order to understand Mr. Posey's contentions, we first review the allegations of the complaint and the manner in which they were presented to [229 Cal.App.3d 1241] the jury. The first three causes of action are against the Leavitts for wilful trespass, negligent trespass, and nuisance. For relief, plaintiff seeks an order requiring removal of the deck extension and damages.

The fourth cause of action is against the homeowner's association for breach of fiduciary duty and breach of the covenant of good faith and fair dealing. In that cause of action, Mr. Posey contended that the association breached its fiduciary duties by approving the deck extension, and in not requiring its removal. He sought damages against the association.

TRIAL COURT PROCEEDINGS

At the beginning of trial, the Leavitts made a motion for judgment on the pleadings and argued that the court should decide whether a nuisance existed before submitting the damages issues to the jury. 1 They urged that there was no nuisance and no trespass. The trial court did not deny the motion at that time, but stated that it felt that the case presented issues that should go to the jury. Subsequently, the trial court denied the motion on grounds that the pleadings stated sufficient causes of action to proceed.

The Leavitts' counsel also moved at the beginning of the trial to bifurcate the trial so that the issue of nuisance would be first heard by the court. Although the trial court stated that it agreed that it would decide the nuisance issue, it denied the motion.

In his brief, Mr. Posey states that, at the time jury instructions were discussed, the trial court decided that it would not make a preliminary decision on the trespass and nuisance issues, but would submit these issues to the jury. Unfortunately, the court's reasoning is unknown because this discussion was not reported.

The jury was asked to make 15 special findings. These questions included whether the board of the association had consented and/or ratified the deck improvement, whether the defendants had relied on the statements made to them, and whether the association had violated its fiduciary duties. Mr. Posey specifically objects to the asking of three questions: (1) "8) Was the use of Mr. and Mrs. LEAVITTS [sic] deck extension an interference, substantial and unreasonable, such as would be offensive to a normal person?" (The jury found it was not by a vote of 10-2); (2) "13) Did defendants, DAVID & AILEEN LEAVITT intentionally and willfully trespass on the 'Common [229 Cal.App.3d 1242] Area'?" (The jury found they did not by a vote of 11-1); and (3) "14) Did defendants David & Aileen Leavitt negligently trespass on the 'Common Area'?" (The jury found they did not by a vote of 9-3.) The jury answered these questions as shown and found for the Leavitts generally.

Following the jury's decision, a hearing was held on December 8, 1987, ostensibly on an equitable indemnity cross-complaint between the Leavitts and the association. At that time, the trial court also ruled on Mr. Posey's request for injunctive relief, even though his counsel was absent. The court said: "I am prepared to rule on that. And my ruling would be that there is no injunctive relief. Based upon the jury's finding and the jury's verdict, there is no justification for any injunctive relief being granted by this court and would deny the plaintiffs' request in that regard."

At a subsequent hearing, Mr. Posey's counsel sought to reargue the request for injunctive relief. The court granted his request, saying "I have to tell you that I'm probably a little bit predisposed in this matter because I had [previously ruled on the matter] and I don't feel that I was inclined to violate the--or set aside the jury's verdict as far as their opinion in order to grant any injunctive relief, but I'm willing to listen to your argument." Mr. Posey's counsel then requested that "the court try to set aside what it's previously done and consider the points and authorities I've cited. [p] THE COURT: I intend to do that." Mr. Posey's counsel then argued that his understanding was that the court would decide the equitable issues and that the jury would decide the damage claims against the association. Mr. Posey's counsel argued that it was error for the trial court to submit the equitable issues to the jury, but that "I think that the appropriate thing for the court to do at this time is to consider the evidence that was presented in its own mind and make its own independent determination on the equitable issues involved." He also argued that the jury was mistaken in the law if it concluded that the Leavitts' reliance on the association's alleged consent eliminated the trespass. He urged the court to correct the jury's alleged mistake of law.

The Leavitts' counsel responded that the jury was correct if it found that the consent of the association eliminated the trespass.

After further arguments on the merits of the issue, and the cross-complaint for implied indemnity against the association, the trial court said: "It will be under submission. [p] I would only comment that, if the court really had any equitable power it could use, the best thing it could do would be to put the clock back to the Spring of 1981 and let all these things transpire over again. [p] If there ever was a classic case of a no-win situation, this is also it."

[229 Cal.App.3d 1243] The trial court then issued its ruling on January 21, 1988. Characterizing the motion as a motion for reconsideration of the December 8, 1987, ruling, it denied reconsideration. 2 Six days later, the Leavitts filed a request for a statement of decision. Twelve days later, the Poseys filed a similar request. The trial court denied the requests as being untimely. 3 Accordingly, we have no record of the reasons for the trial court's decision other than the comments quoted above.

DISCUSSION

Plaintiff was plainly seeking equitable relief against the Leavitts in the form of an injunction to remove the encroachment. Injunction is a remedy for the torts of trespass and nuisance. (See, generally, Code Civ.Proc., §§ 525, 526, 731; Civ.Code, § 3501; 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, §§ 604, 607, pp. 704, 706; 11 Witkin, Summary of Cal.Law, supra, Equity, §§ 82, 121, 126, pp. 760-761, 802-803, 807-808; 5 Witkin, Cal.Procedure (3d ed. 1985) Pleading, §§ 773-774, pp. 217-219.) The Leavitts defended on grounds that the consent of the association eliminated any trespass or nuisance.

"Nuisance is distinguishable from trespass in that the mere intentional entry on land may violate the right of exclusive possession and create a right of action for trespass, while conduct or activity cannot amount to a nuisance unless it substantially interferes with the use and enjoyment of the land." (11 Witkin, Summary of Cal.Law, supra, Equity, § 125, p. 806.) An action to abate a nuisance is an action in equity. (Meek v. DeLatour (1905) 2 Cal.App. 261, 263, 83 P. 300, disapproved on other grounds in Robinson v. Puls (1946) 28 Cal.2d 664, 666, 171 P.2d 430.)

An encroachment is usually both a trespass and a nuisance. (11 Witkin, Summary of Cal.Law, supra, Equity, § 126, pp. 807-808.) The parties here stipulated that an expert witness would testify that all of the areas outside the buildings themselves, including decks and stairs, encroached[229 Cal.App.3d 1244] on the common area. The issue of encroachment was therefore removed from the case, and did not need to be decided by the court or jury.

Since the action was an equitable action, there was no right to a jury trial on the consent defense. 4 (Wolford v. Thomas (1987) 190 Cal.App.3d 347, 353-354, 235 Cal.Rptr. 422; Bank of America v. Greenbach (1950) 98 Cal.App.2d 220, 230, 219 P.2d 814.) "Where a jury trial is not a matter of right, but is nonetheless permitted, the verdict rendered is advisory only. The court may accept or reject it, and, irrespective of the verdict, must make findings to complete the record." (Estate of Kreher...

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42 practice notes
  • Cobb v. Gabriele, H029796 (Cal. App. 4/30/2007), H029796
    • United States
    • California Court of Appeals
    • April 30, 2007
    ...10 Cal.App.3d 38; Field-Escadon, supra, 204 Cal.App.3d 228; see also Wright v. Best (1942) 19 Cal.2d 368; Posey v. Leavitt (1991) 229 Cal.App.3d 1236; Woodridge Escondido Property Owners Assn. v Nielsen (2005) 130 Cal.App.4th 9. Hoehne did not testify. 10. In his deposition, Grimsley said d......
  • Lamden v. La Jolla Shores Clubdominium Homeowners Assn., No. S070296
    • United States
    • United States State Supreme Court (California)
    • August 9, 1999
    ...declaration. [Citation.] More importantly here, the homeowner can sue directly to enforce the declaration." (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246-1247, 280 Cal.Rptr. 568, citing Cohen v. Kite Hill Community Assn., supra, 142 Cal.App.3d 642, 191 Cal.Rptr. 209.) Nothing we say he......
  • Chee v. Amanda Goldt Property Management, No. A107918.
    • United States
    • California Court of Appeals
    • October 16, 2006
    ...at p. 1385, 49 Cal.Rptr.2d 166 [party damaged by a violation of the CC&R's may seek money damages]; Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246, 280 Cal.Rptr. 568 ["Under well-accepted principles of condominium law, a homeowner can sue the association for damages and an injunction to ......
  • Eisen v. Tavangarian, B278271
    • United States
    • California Court of Appeals
    • June 20, 2019
    ...224 Cal.Rptr. 380.) Although such a right may be created through adoption of enforceable CC&R's (see, e.g., Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1250, 280 Cal.Rptr. 568 ), "[i]t is a general rule that restrictive covenants are construed strictly against the person seeking to enforce......
  • Request a trial to view additional results
42 cases
  • Cobb v. Gabriele, H029796 (Cal. App. 4/30/2007), H029796
    • United States
    • California Court of Appeals
    • April 30, 2007
    ...10 Cal.App.3d 38; Field-Escadon, supra, 204 Cal.App.3d 228; see also Wright v. Best (1942) 19 Cal.2d 368; Posey v. Leavitt (1991) 229 Cal.App.3d 1236; Woodridge Escondido Property Owners Assn. v Nielsen (2005) 130 Cal.App.4th 9. Hoehne did not testify. 10. In his deposition, Grimsley said d......
  • Lamden v. La Jolla Shores Clubdominium Homeowners Assn., No. S070296
    • United States
    • United States State Supreme Court (California)
    • August 9, 1999
    ...declaration. [Citation.] More importantly here, the homeowner can sue directly to enforce the declaration." (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246-1247, 280 Cal.Rptr. 568, citing Cohen v. Kite Hill Community Assn., supra, 142 Cal.App.3d 642, 191 Cal.Rptr. 209.) Nothing we say he......
  • Chee v. Amanda Goldt Property Management, No. A107918.
    • United States
    • California Court of Appeals
    • October 16, 2006
    ...at p. 1385, 49 Cal.Rptr.2d 166 [party damaged by a violation of the CC&R's may seek money damages]; Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246, 280 Cal.Rptr. 568 ["Under well-accepted principles of condominium law, a homeowner can sue the association for damages and an injunction to ......
  • Eisen v. Tavangarian, B278271
    • United States
    • California Court of Appeals
    • June 20, 2019
    ...224 Cal.Rptr. 380.) Although such a right may be created through adoption of enforceable CC&R's (see, e.g., Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1250, 280 Cal.Rptr. 568 ), "[i]t is a general rule that restrictive covenants are construed strictly against the person seeking to enforce......
  • Request a trial to view additional results

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