Seligman v. Tucker

• Decision Date: 17 April 1970
• Citation: 86 Cal.Rptr. 187,6 Cal.App.3d 691
• Court: California Court of Appeals Court of Appeals
• Parties: Sydney M. SELIGMAN and Jeanne Seligman, Plaintiffs and Respondents, v. Jerry TUCKER and Phyllis Tucker, Defendants and Appellants. Civ. 34057.

Page 187

86 Cal.Rptr. 187

6 Cal.App.3d 691

Sydney M. SELIGMAN and Jeanne Seligman, Plaintiffs and Respondents, v. Jerry TUCKER and Phyllis Tucker, Defendants and Appellants.

Civ. 34057.

Court of Appeal, Second District, Division 5, California.

April 17, 1970.

Hearing Denied June 10, 1970.

Percy Drabin and Earl D. Reese, Sherman Oaks, for defendants and appellants.

Manuel Seligman, Beverly Hills, for plaintiffs and respondents.

REPPY, Associate Justice.

This is an appeal from a judgment for a final mandatory injunction requiring defendants to remove or lower an addition to a single-family residence, for attorney's fees, and for court costs.

The facts which give meaning to certain concessions of defendants and to their contentions are as follows:

Around February 1963 Bensonia Investment Company acquired a 37-vacant-lot subdivision in a hillside area of Sherman Oaks, California, for the speculative purpose of constructing single-family residences to be sold to the public. The slope of the hills was from higher land at the south toward lower land at the north. Bensonia proceeded to build the homes. They were located on each of the lots so as to achieve pleasing views of the landscape across areas left open on other lots. A few of the homes, including that acquired by plaintiffs, had panoramic views of the lower San Fernando Valley. After the homes were constructed, and just a few days before the notice of completion for all the construction was recorded (November 5, 1963), a general-plan-type written declaration of restrictions calculated to provide and preserve an attractive, sightly, wellkept, and adequately drained subdivision of single-family residences with compatible out buildings, was executed and recorded by Bensonia (October 29, 1963). Bensonia then conveyed to Broadstone Development Company which carried out the process of selling the homes. ¹ Included in the restrictions was one for the protection of the views which existed for the various homes. It reads, in pertinent part, as follows:

'No * * * structure shall be * * * erected * * * upon any lot in such location or in such height as to unreasonably obstruct the view from any other lot. * * *'

The restrictions recited that they were enforceable by the declarant, any owner, or an architectural committee. The restrictions contained no other reference to an architectural committee, to its makeup or functions. There is no indication that any such committee (in aid of enforcement of the view restriction) had any right of preliminary determination as to whether an obstruction was unreasonable; or that any such committee came into being. One clause in the restrictions precluded the erection of television aerials. Following a number of meetings about the restrictions centered on the television aerial taboo, wherein a unanimous consensus was developed that the restriction should not be followed because of the cost of 'cable' service, a general disregard for that restriction came about, and practically all residents in the tract, including plaintiffs and defendants, ² installed roof aerials.

Plaintiffs, husband and wife, purchased the one-story residence located on lot 32 situated where Stone Canyon Avenue makes a right angle curve from a west to east course to a south to north course. Defendants purchased lot 31 which had a two-story house on it. The lot was to the north and at a lower level than plaintiffs' residence and the home faced on the south to north course of Stone Canyon Avenue. Plaintiffs' home fronted on the west to east course of the street. Thus, the rear facade of plaintiffs' home, which was the longer dimension of its rectangular shape, faced to the north and overlooked defendants' lower level lot extending toward the north. The rear portion of defendants' lot was open. This arrangement afforded the means for a view from the residence of the plaintiffs. A facsimile of a diagram, which is part of the evidence, makes clear the lot arrangement just described:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Windows of the living room, dining room and kitchen of plaintiffs' home provided a full view, and those of the bedroom a partial view of a wide expanse of the lower valley. From parts of the pool terrace plaintiffs had a similar view.

In February 1968 defendants planned and contracted for the construction of a flat-roofed rumpus room as an addition to their home which was to extend fully along the west or rear wall of their house and 26 feet out toward the west, and which was to have a floor raised 36 inches above the lower floor of the main house (with steps leading from one level to the other) so as to provide what defendants referred to as a 'conversation pit' sunk into the floor level of the rumpus room and was to have windows having a view of the lower valley. The contract price for the improvement was $6,250. Fixtures, which were to be self-procured and installed, were to cost $750.

On February 28, 1968, when the addition was under construction, plaintiffs filed suit for declaratory relief, for a preliminary injuction to halt the construction and for a final mandatory injunction requiring the removal of the structure. The case was tried, and the trial court found that the view restriction was valid and enforceable; that plaintiffs' view from their residence had been unreasonably obstructed; and that the interference with their enjoyment brought about thereby was an irreparable injury which money damages could not adequately compensate. The trial court issued a judgment which included a final injunction of a mandatory nature which required defendants to remove the improvement, or lower it three feet, an award of $2,000 under a clause in the restrictions authorizing an award of attorney's fees to the successful litigant in a court contest over restrictions, and an allowance to plaintiffs of their costs of suit.

Additional facts and trial circumstances will be presented in connection with the discussion of defendants' contentions.

On appeal, with commendable astuteness, defendants have accepted the propositions that there is substantial evidence in the record that plaintiffs purchased their residence with knowledge and belief in the validity of, and reliance upon, the view restrictions; that the panoramic view of the lower valley from the rooms and pool terrace mentioned above was a significant inducement of their purchase and a source of great enjoyment and satisfaction during their occupation; that the construction of the rumpus room by defendants substantially obstructed that view; ³ that the floor and roof elevation of the addition, for reasons of aesthetic and social use, were set three feet higher than was compatible with existing physical conditions; that defendants had both constructive and actual notice of the view restrictions; that defendants did not have a good faith belief that their addition would not substantially impair the view of plaintiffs; ⁴ and that plaintiffs acted promptly in notifying defendants that they considered that the full completion of the rumpus room would violate the view restriction and in filing their injunction suit.

With the same good judgment, defendants, obviously cognizant of the fact that at trial they had offered no proof of expenditures on the project up to March 13, 1968, ⁵ or of any claim by their contractor that he would have been entitled to specified damages if defendants had called off the construction, do not challenge the final mandatory injunction on the ground that their provable financial commitment to the project and the expense of removal or modification would be so disproportionate to the harm to plaintiffs that only money damages should have been awarded. (See, e.g., Brown Derby Hollywood Corp. v. Hatton, 61 Cal.2d 855, 858, 40 Cal.Rptr. 848, 395 P.2d 896; Dolske v. Gormley, 58 Cal.2d 513, 520--521, 25 Cal.Rptr. 270, 375 P.2d 174; D'Andrea v. Pringle, 243 Cal.App.2d 689, 695, 52 Cal.Rptr. 606.)

CONTENTIONS

Primarily defendants concentrate their attack on the validity and enforceability of the view restriction clause. It is contended that its language is too vague in that it cannot be told what views are involved and in that no standards are set up as a guide for compliance with, or enforcement of the restrictions other than the term 'unreasonable obstruction' which, defendants urge, is inadequate because it is insufficiently definitive. On the issue of invalidity, defendants further contend that the view restriction became ineffective by the time defendants commenced construction of their rumpus room because of a general pattern of noncompliance which, complain defendants, they were not allowed to fully prove by the trial court.

Alternatively, defendants contend that plaintiffs are disqualified to have the view restrictions judicially applied in their favor because (1) plaintiffs were in violation of another restriction, the ban on television aerials and (2) plaintiffs' residence was not reduced in value by reason of the view obstruction.

On the premise that they would successfully defeat defendants' appeal, plaintiffs also ask that we allow and set fees with respect to the legal services rendered by their counsel in this stage of the litigation under a clause in the restrictions providing that, in any proceeding to restrain the violation of any provision, the losing party shall pay the attorney's fees of the winning party in an amount fixed by the court.

1. Validity and Enforceability of View Restriction Clause

It is clear from the surrounding circumstances and the timing of the filing of the declaration of restrictions that the views dealt with in the 'view-protection' clause were those which the residences had upon their completion, by reason of their orientation on the lots and their room and window locations and of the open spaces left on other lots. (Cf. King v. Kugler, 197 Cal.App.2d 651, 654--655, 17 Cal.Rptr. 504.)

The term ...