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Philip Schuman, et al v. Allan Ignatin

December 23, 2010

PHILIP SCHUMAN, ET AL., PLAINTIFFS, CROSS-DEFENDANTS, AND APPELLANTS,
v.
ALLAN IGNATIN, ET AL., DEFENDANTS, CROSS-COMPLAINANTS AND APPELLANTS; ERIC F. EDMUNDS, JR., ET AL., CROSS-DEFENDANTS, CROSS-COMPLAINANTS, AND APPELLANTS.



Los Angeles County Super. Ct. No. SC095538 APPEALS from a judgment of the Superior Court for Los Angeles County, Jacqueline A. Connor, Judge. Reversed.

The opinion of the court was delivered by: Willhite, Acting P. J.

CERTIFIED FOR PUBLICATION

This case involves a dispute among property owners in a general plan development of 68 homes in Los Angeles. The owners of one of the properties, Allan Ignatin and Janet Sobell (collectively, Ignatin),*fn1 want to build a house that other property owners believe would violate recorded restrictions (CC&Rs) governing the development. The owners of a neighboring property, Philip Schuman and Margaret McNulty (collectively, Schuman), filed a lawsuit against Ignatin, seeking to block the proposed construction. Ignatin cross-complained against Schuman and several other property owners, including Eric F. Edmunds, Jr. and Debora Edmunds (collectively, Edmunds), seeking a determination that the proposed house would not violate the CC&Rs. Edmunds, in turn, filed a cross-complaint against Ignatin, alleging that the proposed house would violate the CC&Rs, create a nuisance, and violate city codes and the California Environmental Quality Act (CEQA).

During a recess after the first day of a bench trial, Ignatin for the first time challenged the validity of a recorded amendment that purportedly extended the duration date set forth in the original CC&Rs, and asked the trial court to find that the CC&Rs expired on January 1, 1999, the original expiration date. The trial court made that finding, entered judgment in favor of Ignatin on Schuman's complaint, and dismissed Ignatin's and Edmunds's cross-complaints as moot. Schuman, Edmunds, and Ignatin all appeal: Schuman and Edmunds challenge, among other things, the trial court's finding that the CC&Rs expired, arguing that the applicable statute of limitations bars Ignatin's assertion that the amendment of the CC&Rs was invalid, and Ignatin challenges the dismissal of Ignatin's cross-complaint as moot. We conclude that Ignatin's assertion of the invalidity of the amendment is time-barred. Accordingly, we reverse the judgment and remand the matter for retrial, at which Ignatin may present other asserted defenses against Schuman's and Edmunds's claims and seek the relief sought in Ignatin's cross-complaint.

BACKGROUND*fn2

In 1965, Link Builders, owners of real property described as Lots 1 through 68 of Tract 22876 in the City of Los Angeles, recorded a Declaration of Establishment of Conditions and Restrictions (the CC&Rs) that subjected all of the lots in the general plan development to various conditions and restrictions. Among other things, the CC&Rs provided that no structure on any lot may be constructed in such a manner as to obstruct the scenic view of any other lot owner. The CC&Rs also provided that the conditions and restrictions would run with the land, and would remain in force until January 1, 1999.

On December 31, 1998, the Brentwood Hills Homeowners Association recorded a document entitled "Amendment to Extend Duration of Declaration of Establishment of Conditions and Restrictions" for Tract 22876 (the Amendment). The Amendment, which was signed in mid-December 1998 by the owners of 43 of the 68 lots, stated that the owners desired to amend the CC&Rs to provide that the restrictions and conditions would remain in effect until January 1, 2009, and would be continued automatically for 10 year periods unless a majority of owners recorded a written agreement changing, modifying, or extinguishing the CC&Rs. Schuman signed the Amendment as owner of Lot 51 (2569 Cordelia Road, a different lot than the lot Schuman owned at the time this lawsuit was initiated).*fn3 Edmunds signed as owner of Parcel A (2576 Cordelia Road). Ignatin's predecessor as owner of Lot 53 (2583 Cordelia Road, which was owned by Alfred S. Yue at the time the Amendment was signed) also signed the Amendment. Ignatin purchased Lot 53 in or around October 2005.

Sometime before September 2007, Schuman, Edwards, and other owners of homes in Tract 22876 learned that Ignatin planned to construct a new, much larger, home on Lot 53. Schuman and the other neighbors believed the new home would violate the CC&Rs, including the view protection provisions. Some of the neighbors expressed to Ignatin their concerns about the proposed construction, and made suggestions about how to abate some of those concerns. When Ignatin did not respond to those suggestions, Schuman, Edmunds, and several other neighbors sent a letter to Ignatin on September 10, 2007, demanding that Ignatin suspend all development of the property until the neighbors' concerns were addressed. Ignatin responded to the letter a week later, disputing that the proposed construction would violate the CC&Rs; Ignatin did not challenge the validity of the CC&Rs or the Amendment.

On October 5, 2007, Schuman filed a complaint against Ignatin seeking a declaration that Ignatin's proposed construction would violate the CC&Rs, and an injunction prohibiting Ignatin from constructing any structure or cultivating any landscaping that would interfere with Schuman's scenic view in violation of the CC&Rs. That same day, Schuman recorded a "joinder" in the Amendment, as owner of Lot 54.

Ignatin filed an answer -- a general denial, with several affirmative defenses, none of which challenged the validity of the CC&Rs or the Amendment -- and a cross-complaint for declaratory relief against Schuman, Edmunds, and the other property owners who signed the September 10, 2007 letter to Ignatin. The cross-complaint alleged that all the lots in Tract 22876 "are subject to recorded CC&R's," but that Ignatin's proposed construction would not violate the CC&Rs and the Amendment. The cross-complaint also alleged that Schuman, Edmunds, and the other owners "may not enforce the [CC&Rs] and the Amendment, because they have acquiesced in violations of the [CC&Rs] and the Amendment, because they have waived their right to enforce the [CC&Rs] and the Amendment, and because changed circumstances in Tract 22876 render the [CC&Rs] and the Amendment obsolete and enforcement of the [CC&Rs] and Amendment against [Ignatin] inequitable and arbitrary." Ignatin requested a declaration that the proposed construction "does not violate the [CC&Rs] or the Amendment, or alternatively, that the [CC&Rs] and the Amendment may not be enforced . . . to prevent [Ignatin's] construction of a residence on [Ignatin's] property in accordance with the Plans."

Edmunds responded with a cross-complaint against Ignatin, seeking a declaration that the proposed construction would violate the CC&Rs, city codes and laws, and CEQA, and would constitute a nuisance; Edmunds also sought an injunction prohibiting Ignatin from constructing any structure that would interfere with Edmunds's rights.

A court trial on the matter began on June 20, 2008. In his opening statement, Ignatin's attorney asserted the evidence would show that Schuman allowed construction of another house that blocks Schuman's view, that Ignatin's proposed house would not unreasonably block any significant views, and that Schuman, Edmunds, and other neighbors cannot enforce the CC&Rs against Ignatin because they violated the CC&Rs themselves. There was no reference made to the possible invalidity of the CC&Rs or the Amendment.

Following opening statements, Schuman presented two expert witnesses -- an architect who testified about how the proposed house would block Schuman's view, and a real estate appraiser who testified about the value of Schuman's property and the change in value if the proposed house were built. Schuman then called George Marnon, an owner of one of the lots in Tract 22876. Marnon testified that he bought his property after the CC&Rs had been extended by the Amendment, and that the existence of CC&Rs protecting the view was an important consideration when he and his wife decided to buy the property; he noted that he and his wife were aware that Tract 22876 was the only tract in the neighborhood that chose to extend the duration of the CC&Rs. He also testified that he and his wife had to file a lawsuit against another neighbor to enforce the CC&Rs about five years earlier, when the neighbor built a fence that obstructed his view. He and his wife estimated that the value of the view was $100,000, so they were willing to spend that much in legal fees to preserve that view. He testified that even though Ignatin's proposed house would not interfere with his view, he was concerned that, if Ignatin were to prevail, other property owners would be allowed to build structures that would block his view.

Marnon was the last witness on the first day of trial. Schuman's attorney estimated that he would call four more witnesses on the next day of trial, and Ignatin's attorney said that he would call one or two more witnesses before the parties and the court participated in a viewing at the location. On the next day of trial, June 23, 2008, the parties met with the court in chambers, after which the matter was continued ...


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