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Colyear v. Rolling Hills Community Association of Rancho Palos Verdes

California Court of Appeals, Second District, Fourth Division

February 28, 2017

RICHARD C. COLYEAR, Plaintiff and Appellant,
v.
ROLLING HILLS COMMUNITY ASSOCIATION OF RANCHO PALOS VERDES et al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Los Angeles County, No. BS150539 Robert Leslie Hess, Judge. Affirmed.

          Law Offices of Michael D. Berk, Michael D. Berk; Greines, Martin, Stein & Richland, Kent Richland and Jonathan H. Eisenman for Petitioner and Appellant.

          Hanson Bridgett, Christopher David Jensen; Alice Liu Jensen for Defendant and Respondent Yu Ping Liu.

          COLLINS, J.

         INTRODUCTION

         Defendant homeowner Yu Ping Liu submitted an application to his homeowners association, defendant Rolling Hills Community Association of Rancho Palos Verdes (HOA), seeking to invoke the HOA's dispute resolution process against a neighbor who refused to trim trees blocking Liu's view. Plaintiff Richard Colyear, another neighbor and HOA member, sued Liu and the HOA, alleging that two of the offending trees were actually on his property, that the relevant tree-trimming covenant did not encumber his property, and therefore that Liu and the HOA were wrongfully clouding his title by seeking to apply such an encumbrance. Liu filed a special motion to strike the claims alleged against him under Code of Civil Procedure section 425.16, the anti-SLAPP statute.[1] The trial court granted the motion and Colyear now appeals.

         We conclude Liu has made a prima facie showing that Colyear's complaint arises from Liu's statements made in connection with an issue of public interest, and therefore Liu's statements are protected under section 425.16, subdivision (e)(4) (section 425.16(e)(4)). In addition, Colyear cannot show a probability of success on the merits of his claims against Liu, particularly because Liu dismissed his application shortly after the lawsuit was filed and has never sought to invoke the HOA's tree-trimming process against Colyear. We therefore affirm.

         FACTUAL AND PROCEDURAL HISTORY

         A. Background

         Liu and Colyear are both homeowners in Rancho Palos Verdes, a planned residential community in the city of Rolling Hills. The property immediately north of Liu's property is owned by Richard and Kathleen Krauthamer. Colyear's property is directly east of the Krauthamer's property, and kitty-corner to Liu's property. Liu, Colyear, and the Krauthamers are all members of the HOA.

         Each home within the community is subject to a declaration of covenants, conditions, and restrictions (CC&Rs). The original declaration recorded in 1936, Declaration 150, set forth the specific property to be included in the community, conferred authority on the HOA to (among other things) “interpret and enforce” the CC&Rs, and detailed a number of CC&Rs applicable to the specified lots. As relevant here, in article I, section 11, Declaration 150 conferred upon the HOA “the right at any time to enter on or upon any part” of a property subject to that declaration “for the purpose of cutting back trees or other plantings which, in the opinion of the [HOA], is warranted to maintain and improve the view of, and protect, adjoining property.”

         As the community expanded, the HOA entered into new declarations covering the additional properties; those declarations contained provisions that were similar, but not identical, to Declaration 150. Declaration 150-M, recorded in 1944, added the property including the lots now owned by Liu, Colyear, and the Krauthamers. Liu does not dispute that these three lots are burdened by Declaration 150-M, rather than by Declaration 150, and that 150-M does not contain a provision similar to that in Declaration 150 regarding tree trimming.[2] According to Colyear, Declaration 150 applies to approximately 84 lots, Declaration 150-M applies to approximately 14 lots, and other declarations cover an additional 657 lots. Ultimately, the community subject to HOA jurisdiction grew to encompass the same boundaries as the city of Rolling Hills. (See Russell v. Palos Verdes Properties (1963) 218 Cal.App.2d 754, 758, disapproved of on another ground by Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345.)

         The HOA is governed by a board of directors. Starting in 1997, the board adopted resolutions to “establish procedures for its members to utilize the authority of the [HOA] to correct view impairments created by trees or other plantings.” The board adopted the most recent version, Resolution 220, in 2012. Resolution 220 quoted the tree-trimming provision in article I, section 11 of Declaration 150 and stated that it “applies to some, if not all, properties in the City of Rolling Hills.” Resolution 220 further made the following findings: “WHEREAS, the [HOA] has held public meetings, circulated drafts of policy alternatives, and received numerous written and oral communications from its members; [¶] WHEREAS, Rolling Hills enjoys both beautiful views and an abundance of mature trees, and values both...; [¶] WHEREAS, the [HOA] wishes to adopt both guidelines and establish procedures for its members to utilize the authority of the [HOA] to correct view impairments, which cannot be resolved between the parties; [¶] WHEREAS, the Deed Restrictions give the [HOA] ‘... the authority to exercise such powers of control, interpretation, construction, consent, decision, determination... and/or enforcement of covenants... as far as may legally be done.'” Based on these and other findings, Resolution 220 established guidelines for processing “all view impairment applications” submitted to the HOA, including submission of an application by the homeowner requesting tree removal, payment by the applicant of an administrative fee and agreement to pay the entire cost of tree trimming or removal, notice sent by the HOA to the affected owner and contiguous property owners, a decision and report by a View Committee, and a process by which to appeal that decision to the board. Resolution 220 also noted that the “City of Rolling Hills Ordinance Chapter 17.26 provides a procedure for abatement of view impairment; so [HOA] members have another alternative for view restoration.”

         As early as 2002, Colyear began to inquire of the board (based on the predecessor to Resolution 220) whether it was the HOA's position that the tree-trimming provision was enforceable against his lot. At the time, he was told it was not, and he would “have to use the City's Ordinance” to settle any view disputes.

         B. Liu's Application and Colyear's Complaint

         In January 2015, in accordance with the process outlined in Resolution 220, Liu filed an “Application for Assistance to Restore View” with the HOA, identifying the Krauthamer property as the location of the obstructing trees or shrubs. In a statement attached to the application, Liu explained that the view from his residence was obstructed by several trees and hedges on the south side of the Krauthamers' property. He said he had attempted to resolve the issue by speaking to Richard Krauthamer starting in late 2012, and by contacting the HOA's city manager in June 2013 and requesting that she informally mediate the dispute. As a result, according to Liu, Krauthamer agreed to trim his trees but never did so. Liu also attached to his application several photographs of the offending trees and hedges. The application does not reference Colyear or Colyear's property.

         As an adjoining property owner, Colyear received notice of Liu's application shortly after it was submitted. Colyear then filed the instant action on March 4, 2015, seeking writ relief and naming Liu, the HOA, its board, and individual board members as respondents. Colyear alleged that Liu's application “may implicate” trees on Colyear's property, but did not otherwise seek relief from Liu.

         Liu withdrew his application to the HOA on April 14, 2015. As a result, the HOA never issued any decision on the application. Following the withdrawal, the HOA had no pending applications involving either Liu or Colyear's property.

         In August 2015, the trial court sustained the demurrers filed by all defendants, and granted leave to amend. Colyear filed an amended pleading, including a petition for writ of traditional mandate and prohibition against the HOA and its board, and a verified complaint “for Declaratory Relief, Injunctive Relief, To Quiet Title, and for Damages” against all defendants (FAC). The FAC sought a declaration, among other things, that Colyear's lot was not subject to the tree-trimming covenant in Declaration 150 and that such covenant could not be enforced against his lot or other lots not encumbered by that declaration, and that Resolution 220 was void to the extent it purported to enforce such tree-trimming covenants in this manner. Colyear further alleged that some of the offending trees designated by Liu on the photos attached to his application were on Colyear's lot, thus Liu “sought to apply the Liu Application to cut back trees and plantings on Colyear's ...


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