Stell v. Jay Hales Development Co.

• Decision Date: 18 December 1992
• Docket Number: No. B053699,B053699
• Citation: 15 Cal.Rptr.2d 220,11 Cal.App.4th 1214
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph STELL et al., Plaintiffs and Appellants, v. JAY HALES DEVELOPMENT CO. et al., Defendants and Respondents.

Page 220

15 Cal.Rptr.2d 220

11 Cal.App.4th 1214

Joseph STELL et al., Plaintiffs and Appellants, v. JAY HALES DEVELOPMENT CO. et al., Defendants and Respondents.

No. B053699.

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

Dec. 18, 1992.

Rehearing Denied Jan. 7, 1993.

Bryan, Cave, McPheeters & McRoberts, Todd M. Sloan, Shapiro, Posell & Close, Jonathan J. Panzer and John D. Arya, Los Angeles, for plaintiffs and appellants.

Reed & Brown, Stephen W. Reed and James A. Gorton, Pasadena, for defendants and respondents.

BOREN, Acting Presiding Justice.

INTRODUCTION

Alleging that respondents were constructing a house in violation of Covenants, Conditions and Restrictions, and also in violation of local zoning ordinances, appellants filed a complaint sounding in nuisance and requesting injunctive relief to abate the nuisance, declaratory relief and damages. The trial court denied appellants' request for a jury trial and, at the conclusion of appellants' presentation of evidence, granted respondents' motions for judgment pursuant to Code of Civil Procedure section 631.8 and for nonsuit. On appeal, appellants contend that the trial court erred in denying trial by jury and in rendering judgment on the grounds that appellants failed to prove the construction constituted a nuisance. Appellants also contend that the trial court was without jurisdiction to award expert witness fees pursuant to Code of Civil Procedure section 998 and that the trial court erred in awarding sanctions against appellants.

STATEMENT OF FACTS

In 1946, R.P. Harper and his wife, who were doing business as Preston Enterprises Appellants are the owners of neighboring parcels in the Preston tract. Appellants Joseph Stell and his wife own Lot 13, and appellants Robert and Ellamae Johnson own Lot 11, which are the lots immediately adjacent to Lot 12. Appellant Joseph Stell is an attorney. ¹

                (collectively, Preston), subdivided a tract of land in what is now the City of La Canada-Flintridge (the city).  In conjunction with that subdivision, Preston recorded a "Declaration of Establishment of Conditions and Restrictions" (CC & R's) on March 21, 1946.  Among other things, these CC & R's specified that each lot in the subdivision could be used "only to erect and maintain thereon a single private house or a residence" and could be "occupied for use by not more than one family."   The CC & R's also specified that any house erected on a lot would be "limited to one story in height."   Preston had conveyed on December 8, 1945, Lots 10, 11 and 12 to Bernice Baymiller (Baymiller) by a grant deed, which was recorded on April 13, 1946.  This deed did not recite the CC & R's, made no reference to them, and was apparently the first conveyance by Preston.  Lot 12 is the subject of appellants' complaint
                

Lots 10, 11, 12 and 13 front on Georgian Road, and each lot was cut approximately in half by a county flood control easement, which at some later point was converted into a concrete flood control channel. In 1960, Baymiller and her husband subdivided Lot 12, so that the front half of Lot 12, upon which Baymiller's house had been constructed, was designated as 356 Georgian Road and the second lot, most of which was to the rear and on the back side of the flood control channel, was designated as 344 Georgian Road. The latter parcel is the site of the construction to which appellants objected, and is essentially a flag lot with access from Georgian Road by a long driveway along one side of the 356 Georgian Road parcel. After some intervening transactions, the two parcels were conveyed in the mid-1960's to Max Herman, since deceased, and his wife, respondent Betty Herman. In 1986, the Max and Betty Herman Revocable Living Trust (the Trust) was created and became the legal owner of both parcels of Lot 12. In 1989, the Trust conveyed the rear parcel, 344 Georgian Road, to respondent Jay Hales Development Co. (Hales), which was owned by respondent Jay Hales.

On May 24, 1989, the city, which had been incorporated in 1976, issued a Certificate of Compliance which certified that 344 Georgian Road, the rear parcel, complied "with all applicable provisions of the Subdivision Map Act and the city's subdivision ordinance." This certificate was recorded on June 14, 1989. In accordance with applicable permits issued by the city, Hales commenced construction on the property in June 1989. In late July or early August, several of appellants made inquiries and investigations, and learned that the activity on the rear parcel was the construction of a two-story house. Appellants filed their complaint on September 28, 1989, by which time Hales had covered the flood control channel to provide vehicle access to the rear parcel and had made substantial progress toward completion of the house.

DISCUSSION

I. Jury Trial

Appellants contend that the trial court erred in granting respondents' motion in limine to have trial without a jury. We find no error.

A jury trial is not a matter of right when an action is one in equity. In making a determination of whether an action is triable by jury, " ' "the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case--the gist of the action...." ' [Citation.] ... [I]f the action is essentially one in equity and the relief sought 'depends upon the application of equitable doctrines,' the parties are not entitled to a jury trial. [Citations.]

Although we have said that 'the legal or equitable nature of a cause of action ordinarily is determined by the mode of relief to be afforded' (Raedeke v. Gibralter Sav. & Loan Assn. [1974] 10 Cal.3d 665, 672 [111 Cal.Rptr. 693, 517 P.2d 1157] ), the prayer for relief in a particular case is not conclusive [citations]. Thus, '[t]he fact that damages is one of a full range of possible remedies does not guarantee... the right to a jury....' [Citation.]" (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 9, 151 Cal.Rptr. 323, 587 P.2d 1136.)

In determining that appellants were not entitled to a jury trial, the trial court relied upon the case of Wolford v. Thomas (1987) 190 Cal.App.3d 347, 235 Cal.Rptr. 422. We agree with the trial court that Wolford is dispositive of the question of whether or not a jury trial was warranted in the instant case. As the Court of Appeal stated in Wolford, "[T]he gist of the... complaint was clearly to abate a public and private nuisance and for injunctive and declaratory relief.... Furthermore, the bulk of the relief sought here, under... nuisance... claims, was equitable.... The fact that the... complaint also sought 'damages...' does not convert this essentially equitable action into a legal one. It was infeasible for the court to sever the legal claim from the equitable one here. Moreover, the damage claims were incidental to the equitable claims. If the [plaintiffs] were to prevail and damages were awarded, it would be primarily on a basis of the court fashioning a remedy other than demolishing the [house]. One of the aspects of an equitable action is the balancing of the interests of the parties. To do equity a trial court must have various options available to it, including that of awarding damages. In sum, the trial court's action of granting the... motion for court trial was correct. The [plaintiffs] were not entitled to a jury trial on their claims." (Id. at pp. 353-354, 235 Cal.Rptr. 422.) For the same reasons, neither were appellants here.

II. Nuisance

Appellants contend that the trial court erred in finding that appellants had failed to prove a nuisance based on violation of local zoning ordinances. We disagree.

It is not disputed that the area in which Lot 12 of the tract was located was zoned by local ordinance as "R-1-40,000" and that zoning regulations prohibited more than one single family residence on any parcel and required that any such parcel be at least 40,000 square feet in area. Appellants claim that respondents were in violation of the zoning ordinance in both of its respects: first, that 344 Georgian Road, the rear parcel of Lot 12, was less than 40,000 square feet in area, and, second, that a second dwelling could not be constructed on Lot 12 because it had been illegally subdivided and, by operation of law, the two parcels had merged.

Preliminarily, we note that the law permits a private individual to enjoin a zoning violation as a nuisance if the private individual has suffered a " 'special injury to himself in person or property of a character different in kind from that suffered by the general public' [citation] or an injury 'greater than that suffered by the public generally' [citation]...." (Pacifica Homeowners' Assn. v. Wesley Palms Retirement Community ) (1986) 178 Cal.App.3d 1147, 1152-1153, 224 Cal.Rptr. 380; see also Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939-940, 101 Cal.Rptr. 568, 496 P.2d 480.) The trial court found that appellants had failed to present any evidence that the rear parcel of Lot 12, 344 Georgian Road, contained an area of less than 40,000 square feet. The trial court also found that there was no evidence either that the 1960 subdivision of Lot 12 was illegal or that the two parcels of Lot 12 had merged by operation of law.

A. Evidence of Parcel Size

Recognizing that no witness testified about the actual size of either Lot 12 or 344 Georgian Road, the rear parcel, appellants urge nonetheless that the trial court had sufficient evidence before it from which to calculate the size of the rear parcel. Appellants urge that the trial court Lot 12's frontage on Georgian Road is semi-circular and the lot has in fact five sides, including one rather obviously oblique angle located at the corner of what the legal description in the certificate of compliance describes as the "true point of beginning." It may well be that all the corners of the rear parcel of Lot 12 are 90-degree angles, but we have been cited to...