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Date: 06-21-2019

Case Style: Glenn Eisen v. Ardeshir TavanGarian

Case Number: B278271

Judge: Perlus, P.J.

Court: California Court of Appeals Second Appellate District, Division Seven on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Rosario Perry, Hiroko Ushimaru and Ricahrd B. Miller

Defendant's Attorney: Judith A. Gelfand, Wayne Marcus, Bernard Hathaway,
William R. Fado, H. Peter Grassl, Kathleen A. Kerrigan, Silgia Grassl, Emil Kadrnka, Simon T. Halff, Brian Faris, Peter J. Zomber, Sabrina Diaz and Renate Hecht

Description: Following a bench trial the court entered judgment and
granted an injunction in favor of Glenn Eisen and Alison Eisen,
finding that Ardeshir Tavangarian, Tania Tavangarian and
619 Properties, LLC had violated the view protection provisions
of paragraphs 1 and 11 of the covenants, conditions and
restrictions (CC&R’s) applicable to the parties’ neighboring
properties in the Marquez Knolls section of the Pacific Palisades.
The court ordered removal of certain alterations and
improvements made by the Tavangarians to their home, now
owned by 619 Properties, and awarded the Eisens $39,000 in
“interim damages” for their loss of view.
On appeal the Tavangarians and 619 Properties argue
neither paragraph 1 nor paragraph 11 of the CC&R’s restricts
alterations to an existing residence; the Eisens waived or are
estopped from seeking relief with respect to several claims in
their lawsuit; injunctive relief was improperly awarded in view of
the adequacy of the Eisens’ legal remedy and the balance of
equities; and the court erred in excluding relevant evidence and
denying a request for leave to amend their answer. In a limited
cross-appeal the Eisens contend the trial court erred in ruling
paragraph 1 of the CC&R’s prohibits only alterations of a
residence’s second story that detract from a neighbor’s view and
not all expansions of the contour or silhouette of a previously
approved second story.
We reverse the judgment with directions.
1. The Parties
The Eisens purchased the real property located at
1145 Lachman Lane in the Marquez Knolls area of Pacific
Palisades in August 2009. The Tavangarians, as trustees of the
Tavangarian Revocable Trust dated 2002, purchased the real
property at 1134 Lachman Lane in October 2012 for the purpose
of remodel and resale.1
The Tavangarians never lived at
1134 Lachman Lane and sold the property to 619 Properties in
April 2014 during the pendency of this litigation.
Lachman Lane generally runs north-south. The
Tavangarian property is across the street, to the southeast of the
Eisen property. Both homes have ocean views to the south.
However, based on two site inspections, the trial court found the
Eisens’ primary view is out their east-facing windows across
Lachman Lane and over the roof of the Tavangarians’ home.
2. The CC&R’s Governing Lots in Marquez Knolls
Tract 20305
Homes in the Marquez Knolls area were originally
constructed as 2,200-to-2,500-square-foot tract houses with
common architectural and design features. The Eisen and
Tavangarian properties are located in tract 20305 and are subject
to CC&R’s recorded for that tract on May 4, 1962. Four of the

1 Mr. Tavangarian owns a firm that designs and constructs
higher-end single-family homes and hotels.
CC&R’s—paragraphs 1, 2, 3 and 11—are particularly significant
to the case at bar.
Paragraph 1 of the CC&R’s provides:
“All said lots shall be known and described as
residential lots, no structure shall be erected, altered,
placed or permitted to remain on any building plot other
than one detached single-family dwelling not to exceed
one story in height and a private garage, for not more
than three cars; except; where, in the judgement [sic] of
the Declarant [(Marquez Knolls Inc.)
] and approved by
the Architectural Committee, one two story single-family
dwelling may be erected where said dwelling will not
detract from the view of any other lot.”
Paragraph 2 provides in part:
“No building shall be erected, placed or altered on any
building plot in this subdivision until the building plans,
specifications, and plot plan showing the location of such
building have been approved in writing as to the
conformity and harmony of exterior design with existing
structures in the subdivision, and as to location of the
building with respect to topography and finished ground
elevation by an Architectural Committee . . . . In the
event the said committee fails to approve or disapprove a
design and location within thirty (30) days after said plans
and specifications have been submitted to it, or in any
event, if no suit to enjoin the erection of said such building
or making of any alterations have [sic] been commenced
prior to the completion thereof, such approval will not be

The CC&R’s were signed by Melvin Lachman, president,
and Earl Lachman, secretary, on behalf of the developer and
declarant, Marquez Knolls Inc. In places the CC&R’s refer to
“Declarants” in the plural.
required and this covenant will be deemed to have been
fully complied with. . . . The power and duties of such
committee shall cease on or after December 31, 1966.
Thereafter, the power and duties described in this
covenant shall pass to the Marquez Knolls Property
Owner’s Association, Inc., a California corporation, who
shall thereafter exercise the same powers previously
exercised by said committee until December 31, 1980 at
such time the powers and duties exercised by said
Association shall cease and determine.”
Paragraph 3 provides:
“No building shall be located on any lot nearer than
fifteen (15) feet to the front lot line. No building, except a
detached garage or other outbuilding located sixty
(60) feet from the front lot line, shall be located nearer
than five (5) feet to any side line. No residence or
attached appurtenance shall be erected on any lot nearer
than fifteen (15) feet from the front lot line except where
the county or city permits and with specific authority of
the architectural committee.”
Paragraph 11 provides:
“No fences or hedges exceeding three feet in height shall
be erected or permitted to remain between the street and
the front set-back line nor shall any tree, shrub or other
landscaping be planted or any structures erected that may
at present or in the future obstruct the view from any
other lot, and the right of entry is reserved by the
Declarants to trim any tree obstructing the view of any
3. The Tavangarians’ Remodel of Their Home
When the Tavangarians purchased 1134 Lachman Lane,
the house had an L-shaped design. The rectangular portion lying
east-west had two stories and was located at the north end of,
and perpendicular to, the one-story portion of the house that ran
north-south at the western end of the east-west segment. The
Eisens and the Tavangarians agree the architectural committee
had approved the two-story residence at the time it was built, as
required by paragraphs 1 and 2 of the CC&R’s.
Starting in approximately April 2013 Mr. Tavangarian
began remodeling the residence. He replaced an old rooftop airconditioning
unit with new air-conditioning units, ducts, fences
and related modifications on the first- and second-story roofs.
The second story’s western wall was extended to the south by
more than five feet (referred to as a “privacy wall”), and its southfacing
wall was extended to the south by more than four feet. In
addition, the original roof of the second story was extended by
cantilevering it out to the south by eight feet, so that it was
coextensive with the new privacy wall. Tavangarian also built a
three-sided glass wall enclosure that extended a second-floor
bathroom several feet to the south; and he extended the eastfacing
side of the second story by approximately two feet, from
which he built a deck with a cantilevered roof covering it.
Finally, existing hedges along the border of the property at
Lachman Lane were removed and replaced. The new hedges
were permitted to grow more than three feet above the ground.
By the end of September 2013 the project was nearing
completion, and the air-conditioning equipment was in place.
4. The Eisens’ Lawsuit
The Eisens sued the Tavangarians on September 13, 2013,
alleging the remodeling being done at the Tavangarians’ property
violated paragraphs 1 and 11 of the CC&R’s, which the Eisens
alleged “prohibit the erection of any ‘structures’ that would
unreasonably obstruct or detract from” the view from their
property. More precisely, the Eisens alleged paragraph 1
prohibits a property owner from making any alterations to an
existing two-story structure and paragraph 11 prohibits a
property owner from erecting a structure that unreasonably
obstructs the view from any other lot. The complaint specifically
identified the new “Multi-Ton Air Conditioner” and related
ducting and equipment on the first- and second-story roofs and
alleged the Eisens were concerned the Tavangarians “may be
planning to construct other or additional structures, in addition
to the air-conditioner and ducting that would obstruct their views
in violation of the CC&Rs.” The Eisens’ complaint sought
damages and injunctive relief, including an injunction preventing
the Tavangarians from making any additions or alterations that
raised or increased their house’s original roof height.
The Eisens filed a first amended complaint in February
2014 and a second amended complaint in June 2014, which added
1134 Lachman Lane’s new owner, 619 Properties, as a defendant.
Neither amended version of the pleading specifically addressed
the privacy wall, the cantilevered roof or the glass enclosure that
was being constructed at the property. However, in a trial brief
filed in August 2015 and subsequent papers filed by the Eisens
during the bench trial, these items were raised as additional
violations of paragraphs 1 and 11 of the CC&R’s.
5. Trial and the Trial Court’s Decision
The Eisens’ lawsuit was tried to the court in late 2015 and
early 2016. In addition to oral and documentary evidence, the
court made two site visits to the Eisens’ and Tavangarians’
properties in February 2016. The court filed its statement of
decision on June 23, 2016.3
After finding that the tract 20305 CC&R’s were binding
and sufficiently certain to allow specific performance and
damages, the court explained that all parties had agreed for
purposes of trial that this court’s decision in Zabrucky v.
McAdams (2005) 129 Cal.App.4th 618 (Zabrucky) applied to the
alterations to the one-story section of the home on the
Tavangarians’ property. Zabrucky, examining the CC&R’s of a
neighboring tract in Marquez Knolls that were essentially
identical to the CC&R’s at issue here, held paragraph 11 applied
not only to construction of a new, free-standing structure on the
property but also to any alteration or remodeling of an existing
dwelling (or, at least, to one-story residences) and, with respect to
both categories, prohibited any structure that “may at present or
in the future unreasonably obstruct the view from any other lot.”
But, the trial court emphasized, the parties disagreed as to the
applicable standard for modifications to the two-story section of
the Tavangarians’ house.
Quoting from paragraph 1 of the CC&R’s, which permitted
erection of a two-story residence if approved by Marquez
Knolls Inc. and the architectural committee “where said dwelling
will not detract from the view of any other lot,” the court
identified four possible interpretations of the CC&R’s impact on
two-story residences in light of the fact the architectural
committee no longer existed and the delegation of its power to the

The court explained that 619 Properties, joined as a
defendant after it had purchased the Tavangarians’ property, did
not participate in the trial but agreed to be bound by the court’s
property owners association had terminated as of December 31,
1980: (1) the exterior of a previously approved two-story
residence cannot be altered; (2) a home can be rebuilt or its
exterior remodeled, but any changes must conform exactly to the
footprint of the previously approved structure; (3) a home can be
rebuilt or its exterior remodeled only if the changes do not detract
from the view of any other lot; and (4) a home can be rebuilt or its
exterior remodeled if the changes do not unreasonably obstruct
the view from any other lot (that is, applying the Zabrucky
majority’s interpretation of paragraph 11 to both first- and
second-story alterations). The court stated the Eisens urged
adoption of interpretation 2 and the Tavangarians argued for
interpretation 4; however, the Tavangarians proposed, if the
court were to adopt interpretation 3, it added the word
“unreasonably” in front of the word “detract” for the same reasons
the Zabrucky majority had inserted the word “unreasonably” in
paragraph 11.
The court adopted interpretation 3 without adding
“unreasonably”: “[T]he Court finds as to the legal significance of
Paragraph 1 that it only prohibits expansion of the Declarant and
Architectural Committee’s approved envelope of the second story
structure where said expansion would not detract from the view
from any other lot.” The court explained that interpretation 2,
advocated by the Eisens, while reasonable, would preclude any
construction of a two-story home where a one-story residence
currently existed, even if the construction or remodeling would
not detract from the view from any other lot. The policy favoring
free use of land weighed against that restrictive interpretation.
To adopt interpretation 4, the court reasoned, would require it to
find that paragraph 1 no longer applied to homes in tract 20305
in the absence of an architectural review committee. The court
concluded the intent of the drafters of the CC&R’s was to provide
greater view protection from two-story homes than from one-story
residences, as evidenced by the use of “detract” in paragraph 1
but “obstruct” in paragraph 11; and it “sees no reason to grant
less protection today with respect to views impacted by two story
dwellings now that all lots have been built and the reviewing
committee disbanded.” The court declined to include
“unreasonably” in front of “detract” because that word was not in
paragraph 1 as drafted “and to add it now would only create
greater confusion in interpreting and applying this standard.”
Applying its interpretation of the CC&R’s to the questions
whether the Tavangarians’ first-story improvements
“unreasonably obstruct” the views from the Eisens’ property and
whether the second-story improvements “detract” from the
Eisens’ views, the court found most of the remodeling violated the
CC&R’s. Specifically, the court found the privacy wall and the
cantilevered roof on the south-facing side of the residence
detracted from the Eisens’ view in violation of paragraph 1 and
also unreasonably obstructed their view in violation of
paragraph 11. Both were ordered removed. The court retained
jurisdiction to address the removal or modification of the secondfloor
bathroom glass wall extension; it explained that extension
might detract from the Eisens’ view once the privacy wall and
cantilevered roof were removed, but the court was not yet able to
make that determination.4

The court found the Eisens did not prove the eastern
extension of the cantilevered roof unreasonably obstructed or
detracted from their view.
With respect to the air-conditioning ducts and related
equipment, the court found the items on the first-story roof
unreasonably obstructed the Eisens’ views and those on the
second-story roof detracted from their views. They were ordered
replaced with significantly less obtrusive equipment.
Finally, the court found the hedges planted by the
Tavangarians violated paragraph 11 of the CC&R’s, rejecting the
contention the Eisens had agreed to allow the hedges to grow to
the roof line of the property or had waived their right to enforce
the three-foot height limit on hedges in paragraph 11. The court
also awarded $39,000 as interim damages for loss of view for the
period from the filing of the lawsuit until the last day of trial.
In finding in favor of the Eisens, the court rejected the
Tavangarians’ affirmative defenses of waiver and estoppel,
predicated on the Eisens’ delay in objecting to anything other
than the new air-conditioning units and related equipment,
noting that the Eisens had filed their lawsuit challenging the
remodeling of the Tavangarians’ home within a matter of months
of the beginning of construction. Because the Tavangarians had
not discussed their remodeling plans with the Eisens, the court
found it reasonable that the Eisens were unable to determine
from wooden framing placed during the summer of 2013 how
extensive the view intrusion would be. In addition, with respect
to the Tavangarians’ assertion the Eisens had not objected to the
height of the new hedges on the Tavangarians’ property, the
court found that the Eisens had asked the prior owners, “on
several occasions, to trim the hedges and . . . the hedges were
trimmed from time to time.” Thus, the court found the
Tavangarians had not carried their burden of proving the Eisens
had agreed to any height above the three-foot limit in the
On August 9, 2016 the court entered its judgment and
injunction after bench trial, retaining its jurisdiction, as
described in the statement of decision, to enforce the injunction,
including resolution of any disputes that might arise under it.
1. Standard of Review
“CC&R’s are interpreted according to the usual rules of
interpretation of contracts generally, with a view toward
enforcing the reasonable intent of the parties. [Citations.]
Where, as here, the trial court’s interpretation of the CC&R’s
does not turn on the credibility of extrinsic evidence, we
independently interpret the meaning of the written instrument.”
(Harvey v. The Landing Homeowners Assn. (2008)
162 Cal.App.4th 809, 817; accord, Bear Creek Master Assn. v.
Southern California Investors, Inc. (2018) 28 Cal.App.5th 809,
818; see Ekstrom v. Marquesa at Monarch Beach Homeowners
Assn. (2008) 168 Cal.App.4th 1111, 1123 [“[w]e review the
interpretation of the CC&R’s de novo”].)
Under California law a landowner has no right to an
unobstructed view over adjoining property, and “‘the law is
reluctant to imply such a right.’” (Boxer v. City of Beverly Hills
(2016) 246 Cal.App.4th 1212, 1219; accord, Pacifica Homeowners’

At trial the Tavangarians also raised an in pari delicto
defense and attempted to introduce evidence the Eisens’ property
violated the CC&R’s. Although the defense had been asserted in
their answer to the second amended complaint, it was omitted in
a later-filed amendment to that answer. The court ruled the
defense was untimely and excluded the evidence.
Assn. v. Wesley Palms Retirement Community (1986)
178 Cal.App.3d 1147, 1152.) 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), “[i]t is a general
rule that restrictive covenants are construed strictly against the
person seeking to enforce them, and any doubt will be resolved in
favor of the free use of land.” (White v. Dorfman (1981)
116 Cal.App.3d 892, 897 (White); accord, Chee v. Amanda Goldt
Property Management (2006) 143 Cal.App.4th 1360, 1377; see
generally 6 Miller & Starr, Cal. Real Estate (4th ed. 2018)
§ 16:17, p. 16-73 [“restrictive covenants are to be construed
strictly against limitations upon the free use of property, and
where a provision is subject to more than one interpretation, the
construction that is consonant with the unencumbered use of the
property will be adopted”].) That said, it is also “our duty to
interpret the deed restriction ‘in a way that is both reasonable
and carries out the intended purpose of the contract.’” (Alfaro v.
Community Housing Improvement System & Planning Assn., Inc.
(2009) 171 Cal.App.4th 1356, 1378; see Ezer v. Fuchsloch (1979)
99 Cal.App.3d 849, 861; see also 6 Miller & Starr, supra, § 16:17
at p. 16-75 [“[i]n the absence of ambiguity, the fair intent of the
parties is enforced”].)
2. The Propriety of Revisiting Zabrucky
The trial court grounded its interpretation of the CC&R’s
potentially applicable to the Tavangarians’ renovations of the
house at 1134 Lachman Lane on this court’s divided decision in
Zabrucky, supra, 129 Cal.App.4th 618, which, as discussed, held
paragraph 11 of the Marquez Knolls CC&R’s prohibited any
remodeling or alteration of an existing residence that “may at
present or in the future unreasonably obstruct the view from any
other lot.” (Id. at p. 629 [adding, with underlining, the word
“unreasonably” to the text of the CC&R’s].)6
Based on that
interpretation of the view protection provided by paragraph 11,
the trial court ruled that paragraph 1 afforded even greater
protection to improvements that enlarged the existing second
story of a residence.
The Tavangarians agreed Zabrucky’s interpretation of
paragraph 11 was binding on the trial court, but argue on appeal
we should adopt the reasoning of the Zabrucky dissent and hold
that, unlike paragraph 2 of the CC&R’s, paragraph 11 does not
restrict renovating or altering existing residences. (See
Zabrucky, supra, 129 Cal.App.4th at pp. 630-634 (dis. opn. of
Perluss, P. J.).) With that interpretation of paragraph 11 as their
premise, the Tavangarians argue paragraph 1 similarly does not
restrict improvements to the second story of a residence
previously approved by the architectural committee.
The Eisens insist the Tavangarians have waived any right
to argue on appeal that Zabrucky was incorrectly decided through
their “judicial admission” in the trial court that the term
“structure” in paragraph 11 of the CC&R’s included the
homeowner’s existing residence, as held by the Zabrucky
majority. No judicial admission was made: To be considered a

The CC&R’s for Marquez Knolls tract 26065, recorded on
June 20, 1963, at issue in Zabrucky, and those for tract 20305, at
issue in the case at bar, are identical, save only that the
requirement for approval of all building and remodeling plans by
the architectural committee and thereafter by the Marquez
Knolls Property Owner’s Association, as set forth in paragraph 2,
expired on December 31, 1980 in tract 20305, but not until
December 31, 1995 in tract 26065.
binding judicial admission, “the declaration or utterance must be
one of fact and not a legal conclusion, contention, or argument.”
(Stroud v. Tunzi (2008) 160 Cal.App.4th 377, 384 [“judicial
admissions involve fact, not legal theories or conclusions”];
Fibreboard Paper Products Corp. v. East Bay Union of Machinists
(1964) 227 Cal.App.2d 675, 709 [same].)
Moreover, as the Tavangarians emphasize, it would have
been pointless to challenge that interpretation at trial. (See
Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th
1, 6 [“here the trial court was bound by prior appellate
decisions . . . [,] and it would therefore have been pointless to
raise the issue there”]; Redfearn v. Trader Joe’s Co. (2018)
20 Cal.App.5th 989, 1001 [trial court must follow controlling
precedent from a court of appeal]; see generally Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We,
however, are free to reconsider one of our prior decisions and
conclude it was mistaken. (See, e.g., Barnett v. First National
Ins. Co. of America (2010) 184 Cal.App.4th 1454, 1460 [holding
this court’s decision six years earlier regarding the validity of a
joint settlement offer to a husband and wife under Code of Civil
Procedure section 998 “was mistaken”]; see also Tourgeman v.
Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456, fn. 7 [a
court of appeal panel is free both to disagree with decisions by
other panels and to reconsider its own prior decisions]; see
generally Riverisland Cold Storage, Inc. v. Fresno-Madera
Production Credit Assn. (2013) 55 Cal.4th 1169, 1180 [“[w]e
respect the principle of stare decisis, but reconsideration of a
poorly reasoned opinion is nevertheless appropriate”]; Cianci v.
Superior Court (1985) 40 Cal.3d 903, 924 [although the doctrine
of stare decisis serves important values, “it nevertheless should
not shield court-created error from correction”].) While it would
have been better practice for the Tavangarians to advise the trial
court they might challenge the Zabrucky majority’s
interpretation of paragraph 11 on appeal, their failure to do so
does not preclude this court from revisiting the issue. (See Ward
v. Taggart (1959) 51 Cal.2d 736, 742 [“it is settled that a change
in theory is permitted on appeal when ‘a question of law only is
presented on the facts appearing in the record’”]; Sea & Sage
Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417
[same]; Panopulos v. Maderis (1956) 47 Cal.2d 337, 341; see also
Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1709
[parties are permitted to raise new issues on appeal involving
questions of law; “application of the forfeiture rule is not
automatic; appellate courts have discretion to excuse such
3. Neither Paragraph 1 Nor Paragraph 11 of the CC&R’s
Restricts Renovations or Alterations to a Previously
Approved Residence; Paragraph 2, Which Did Apply to
Residential Alterations, Has Long Since Expired
In light of the principle that, if possible, we must read the
CC&R’s as a whole and adopt the construction that gives effect to

“The general rule confining the parties upon appeal to the
theory advanced below is based on the rationale that the
opposing party should not be required to defend for the first time
on appeal against a new theory that ‘contemplates a factual
situation the consequences of which are open to controversy and
were not put in issue or presented at trial.’” (Ward v. Taggart,
supra, 51 Cal.2d at p. 742.) This rule does not apply here because
the trial court was obligated to follow Zabrucky, supra,
129 Cal.App.4th 618 whether or not the Tavangarians indicated
their disagreement with its holding.
every part of the CC&R’s (see Bear Creek Planning Committee v.
Ferwerda (2011) 193 Cal.App.4th 1178, 1183; Ezer v. Fuchsloch,
supra, 99 Cal.App.3d at p. 861), the plain language of
paragraph 1 is properly interpreted as defining the character of
the development (residential, limited to detached single-family
dwellings) and establishing basic limitations on the types of
homes permitted (not to exceed one story in height, except where
a two-story residence was authorized by Marquez Knolls Inc. and
the architectural committee, with a private garage for not more
than three cars); paragraph 2 as regulating the initial
construction and subsequent alterations of a permitted singlefamily
residence (by requiring approval of building plans by the
architectural committee and, when that committee ceased to
exist at the end of 1966, until December 31, 1980 by the Marquez
Knolls Property Owner’s Association); and paragraph 11 as
controlling the height of fences, hedges, other landscaping and
outbuildings other than a detached garage. This interpretation of
the CC&R’s not only comports with their apparent intent but also
furthers the public policy in favor of the free use of land.
a. Paragraph 1 of the CC&R’s controlled the basic size
of homes in tract 20305 and did not regulate
renovations or remodeling
Paragraph 1 restricted development in tract 20305 to
single-family homes and specified that all such homes were to be
one story in height except, with the approval of Marquez Knolls
Inc. and the architectural committee, “one two story single-family
dwelling may be erected where said dwelling will not detract
from the view of any other lot.” While the paragraph’s basic onestory
limit applied whether a residence was “erected, altered,
placed or permitted to remain on any building plot,” it did not
otherwise restrict the initial construction or renovation of a
single-story residence.8
The mechanism for determining what
construction would actually be permitted within that general
parameter, including renovations to, or remodeling of, a
residence, was provided in paragraph 2, which required approval
by the architectural committee, and then by the property owners
association, for a stated period of years, of all building plans and
specifications for both initial construction and any alterations to
a residence. (See Zabrucky, supra, 129 Cal.App.4th at pp. 620,
624; id. at pp. 631, 634 (dis. opn. of Perluss, P. J.).)
As stated, initial construction of a two-story residence could
only be approved if, in the judgment of Marquez Knolls Inc. and
the architectural committee, it would “not detract from the view
of any other lot.”9
But once a second story was approved and
erected as part of the original construction of a home—
construction that, pursuant to paragraph 16,10 had to begin

Paragraph 3 established front- and side-yard setback lines
for placement of the residence, as well as outbuildings; and
paragraph 7 stated a minimum size (2,000 square feet) for the
“main structure.”
The CC&R’s named Melvin Lachman, Marquez
Knolls Inc.’s president, and Earl Lachman, its secretary, as two of
the three members of the architectural committee, effectively
delegating to the Lachmans in the first instance the authority to
decide where two-story homes would be built in their
10 Paragraph 16 provided, “Construction of a residence as
provided by said Declaration of Restrictions on any of said lots
must be commenced within two (2) years from the date of the
recording of the deed transferring title to said lot from Declarants
within two years of the individual property owner’s acquisition of
title from the developer—paragraph 1 played no further role. As
the Eisens emphasize in their briefing in this court, unlike the
first part of that paragraph, the portion of paragraph 1 dealing
with two-story dwellings did not refer to subsequent alterations
to the residence. That matter was also covered by paragraph 2,
which did not distinguish between the approvals required for the
building plans for one-story and two-story residences.
The Eisens, however, argue that paragraph 1’s reference to
erecting a second-story residence, but not to altering it, means,
once approved, the second story of a home may not thereafter be
modified in any way that enlarges its contour or silhouette. That
contention contravenes two fundamental principles of
construction that guide our resolution of this case. First, as
discussed, if there is more than one reasonable interpretation of a
restrictive covenant, it is to be construed against the individual
seeking to enforce it and in favor of the free use of land. (See
Chee v. Amanda Goldt Property Management, supra,
143 Cal.App.4th at p. 1377; White, supra, 116 Cal.App.3d at
p. 897.) Second, because paragraph 2 by its express terms
applied to any proposed alteration or renovation of a home in
tract 20305, whether initially constructed as a one-story or as an
approved two-story residence, to read into paragraph 1 an
absolute prohibition of any modifications to a second story would
fail to give full effect to paragraph 2. (See Bear Creek Planning
Committee v. Ferwerda, supra, 193 Cal.App.4th at p. 1183; Ezer

herein unless specifically extended in writing by the
Architectural Committee.”
v. Fuchsloch, supra, 99 Cal.App.3d at p. 861.) We decline to
adopt such a restrictive interpretation of paragraph 1.
We reject for similar reasons the trial court’s interpretation
of paragraph 1 as prohibiting any remodeling of the previously
approved second story of a residence unless the alterations did
not detract from the view of any other lot. Whether or not
paragraph 1 prohibits a homeowner from adding a story to a onestory
home or to a previously approved two-story home, an issue
the parties agree we need not decide, that paragraph does not
address the permissible scope of other renovations or
improvements to one-story or previously approved two-story
residences. Whatever restrictions might apply to remodeling
those homes after they had been approved and constructed were
to be found, if at all, elsewhere in the CC&R’s.
b. Approval for renovations and alterations specified in
paragraph 2 was no longer required after
December 31, 1980
There can be no question that the plan-approval
requirements of paragraph 2, which regulates both initial
construction and renovations of residential dwellings in
tract 20305 (that is, both “the erection of said such building” and
“making of any alterations” to them) would apply to the
Tavangarians’ remodeling project if that provision were still in
effect. All parties agree, as did the trial court, that paragraph 2’s
December 31, 1980 sunset provision means that covenant is no
longer enforceable. But they disagree as to the consequences of

11 As the parties acknowledge, it is unnecessary for us to
decide in this case whether a single-story residence could now be
remodeled to add a second story.
the elimination of the architectural committee as of December 31,
1966, as set forth in paragraph 2.
The Eisens, who elsewhere insist paragraph 1 strictly
prohibits any alterations to an originally approved second story,
when attempting to reconcile the limited tenure of the
architectural committee with their absolutist position on view
protection, paradoxically contend that Marquez Knolls Inc. and
the architectural committee could authorize renovations or
alterations to a second story—what they term an exception to
paragraph 1’s prohibition. Once those entities ceased to exist,
they assert, there was no longer any possibility of obtaining such
an exception. Hence, no alterations of the Tavangarians’ second
story was permissible.
But it was paragraph 2, not paragraph 1, that required
review and approval of building plans and specifications by the
architectural committee as a condition for making alterations to
an existing residence. Paragraph 2 transferred that authority to
the property owners association following elimination of the
architectural committee as of December 31, 1966. After another
14 years the responsibility of the association for approving
building plans ceased. Contrary to the Eisens’ claim, what was
eliminated as of that date was not the power to grant an
exception to a prohibition on renovations, but the requirement for
plan approval as a precondition for going forward with them.
Both the majority and dissenting opinions in Zabrucky,
supra, 129 Cal.App.4th 618 interpreted the Marquez Knolls
CC&R’s to permit improvements to existing residences without
preconstruction plan approval by the architectural committee or
the property owners association once the sunset date in
paragraph 2 had passed. (Id. at pp. 624, 629 [maj. opn. of
Woods, J.); id. at p. 631 [dis. opn. of Perluss, P. J.].) That
interpretation is supported not only by the general policy of
strictly construing restrictions on the free use of land but also by
language in paragraph 2 itself, which deems the condition
satisfied if the committee or association failed to approve or
disapprove plans within 30 days of submission. Just as the
failure of the responsible entity to act would be deemed
satisfaction of the condition, the absence of an entity with the
authority to review and approve building plans nullifies that
requirement as a precondition to proceeding with renovations
and remodeling.
This interpretation of the effect of the sunset provision in
paragraph 2 is reinforced by a review of the CC&R’s for two
neighboring tracts in Marquez Knolls, which the Eisens have
provided this court and invited us to use as interpretative aids.12
In 1957 paragraph 2 of the CC&R’s for tract 20179, which is
otherwise substantially identical to paragraph 2 of the CC&R’s

12 We grant the Eisens’ motion to take judicial notice of
items 1, 2 and 3 submitted with their motion: the CC&R’s for
tract 20179, recorded February 7, 1957; the amendment to that
tract’s CC&R’s, recorded March 29, 1957; and the CC&R’s for
tract 26065, recorded June 20, 1963, the CC&R’s at issue in
Zabrucky, supra, 129 Cal.App.4th 618. (See Evid. Code, §§ 452,
subd. (c), 459, subd. (a); Cal-American Income Property Fund II v.
County of Los Angeles (1989) 208 Cal.App.3d 109, 112, fn. 2.) We
deny the balance of the motion to take judicial notice and the
alternative motion to augment the record. Items 5, 6, 7 and 8 are
not subject to judicial notice. Item 4 is irrelevant. None of these
eight documents was filed or lodged in the case in superior court;
accordingly, none is properly added to the record through a
motion to augment.
for tract 20305, provided that the powers and duties of the
architectural committee would cease on December 31, 1960, not
quite four years later. Thereafter, the paragraph continued, “the
approval described in this covenant shall not be required” unless
a majority of the record owners in the subdivision appointed a
representative or representatives to continue to exercise the
committee’s powers.
Apparently deciding it was worthwhile to continue for a
longer period the plan-approval precondition to alterations or
renovations to existing residences, Marquez Knolls Inc. revised
paragraph 2 in the 1962 tract 20305 CC&R’s at issue in this case
by extending the life of the architectural committee by one year
and providing for transfer of the committee’s authority to the
property owners association for a period of 14 years, rather than
leaving to the subdivision’s homeowners the decision whether to
create a new entity with approval authority. By the following
year, in the CC&R’s for tract 26065 (the Zabrucky CC&R’s), the
life of the architectural committee was extended by more than a
dozen years (to December 31, 1980), and the transfer of authority
to the association lasted an additional 15 years. Nowhere do
these revised CC&R’s, with extended periods for approval of
plans and specifications for alterations and renovations to
existing residences, indicate an intent to prohibit remodeling a
residence’s first or second story after the applicable sunset
period. No such reading of the CC&R’s before us would be
reasonable. (See Costa Serena Owners Coalition v. Costa Serena
Architectural Com. (2009) 175 Cal.App.4th 1175, 1199 [deed
restrictions are to be construed in a way that is reasonable and
carries out their intended purpose]; Alfaro v. Community Housing
Improvement System & Planning Assn., Inc., supra,
171 Cal.App.4th at p. 1378 [same].)
c. Paragraph 11 does not restrict renovating or altering
existing residences
The foregoing analysis leads directly to the question we
previously considered in Zabrucky, supra, 129 Cal.App.4th 618:
Does paragraph 11 of the CC&R’s, which, after limiting the
height of fences and hedges between the street and the front
setback line, provides, “nor shall any tree, shrub or other
landscaping be planted or any structures erected that may at
present or in the future obstruct the view from any other lot,”
apply to alterations or renovations to existing homes? The
majority opinion, although conceding the issue presented a “‘true
conundrum’” and describing its conclusion as only “marginally
more logical and supportable” than the opposing view (id. at
p. 624), reversed the trial court and answered with a modified
“yes.” Giving the words “any structures” what it termed their
ordinary meaning and mindful of the desire of most existing
Marquez Knolls homeowners to protect their views and property
values (id. at p. 628), the majority held paragraph 11’s
restrictions applied to additions to, or renovations of, an existing
residence. (Ibid.)13
The majority added, however, that “it is not

13 In reaching its conclusion the majority opinion relied on
Seligman v. Tucker (1970) 6 Cal.App.3d 691, in which
Division Five of this court affirmed an injunction requiring the
defendants to remove or lower the roof of a rumpus room, which
they had added to their home in a hillside portion of Sherman
Oaks and which obstructed the adjoining owner’s “panoramic
views” of the lower San Fernando Valley. (Id. at p. 693.)
As explained in Zabrucky, the restriction at issue in Seligman
reasonable to interpret the CC&R’s as prohibiting any
obstruction of existing views,” even though that is exactly what
paragraph 11 states. (Id. at p. 629.) Instead, the majority
concluded “it would be in keeping with the intent of the drafters
of the CC&R’s to read into paragraph 11 a provision that the view
may not be unreasonably obstructed . . . .” (Ibid.)
The Zabrucky majority misread paragraph 11. It is
certainly true that the common meaning of the word “structure,”
considered without regard to context, includes a house and that
adding rooms to a residence or expanding existing ones could be
described as erecting a structure. But context and usage matter.
(See White, supra, 116 Cal.App.3d at p. 898 [cautioning, while
interpreting a view protection provision in CC&R’s governing a
portion of the Trousdale Estates section of Beverly Hills, “[t]he
word ‘structure’ as used in the CC & Rs has various meanings
depending upon the context in which it is used”].)
For purposes of properly understanding the scope of the
view protections in paragraph 11, paragraph 3, mentioned only in
passing in Zabrucky, provides a necessary backdrop. That

provided, “‘No hedge or hedgerow or wall or fence or building or
other structure shall be planted, erected, located or maintained
upon any lot in such location or in such height as to unreasonably
obstruct the view from any other lot or lots on said Tract.’”
(Zabrucky, supra, 129 Cal.App.4th at p. 625.) But there was no
dispute in Seligman that the rumpus room was a “building or
other structure” that was “erected, located or maintained” on
defendants’ lot. The question was whether “unreasonably
obstruct” was too vague or uncertain a term to be enforced by a
mandatory injunction. (Seligman, at p. 696.) The court’s
analysis on that point has no bearing on the proper
interpretation of paragraph 11 in the Marquez Knolls CC&R’s.
paragraph established a general front setback limit minimum for
any “building” and then separately specified front and side
setback limits for the “residence” and for “a detached garage or
other outbuilding.” That is, paragraph 3 expressly contemplated
homeowners in Marquez Knolls might construct not only their
residence with a detached garage, as authorized by paragraph 1,
but also “outbuildings”: “‘[a] small building appurtenant to a
main building and generally separated from it; e.g. outhouse,
storage shed.’” (People v. Smith (1994) 21 Cal.App.4th 942, 951,
quoting Black’s Law Dict. (5th ed. 1979) p. 993, col. 1.)
Paragraph 6 similarly anticipated outbuildings might be erected
on lots within the tract and prohibited their use as a residence.14
Recognizing that outbuildings, as well as residences, might
be built on lots within tract 20305 gives meaning to the word
choices reflected in paragraphs 1, 2 and 11 of the CC&R’s. As
discussed, when mandating a general one-story height limit,
paragraph 1 refers to dwellings that are both “erected” and
“altered.” Similarly, paragraph 2 in requiring architectural
committee approval of building plans expressly applies to
“erection of said building or making any alterations.” Yet
paragraph 11 restricts only erecting a structure, not making
alterations to one. While that language would unquestionably
apply to construction of a greenhouse, storage shed or other form
of outbuilding, omission in this paragraph of the word “alter”
indicates that covenant does not apply to renovations or
remodeling of the homeowner’s residence.

14 Paragraph 6 provides in full: “No structure of a temporary
character, trailer, basement, tent, shack, garage, barn or other
outbuilding erected on any lot, shall be at any time used as a
residence, either temporarily or permanently.”
Indeed, when advocating for their restrictive interpretation
of paragraph 1, the Eisens have recognized the significance of
Marquez Knolls Inc.’s decision to use only the verb “erect” and
not also “alter” when drafting a covenant. The Eisens emphasize
that the second portion of paragraph 1, which addresses approval
for the construction of a two-story residence, does not use the
verb “alter”; that omission, they argue, means no remodeling is
permissible: “Under Paragraph 1 of the CC&Rs, Defendants are
prohibited from altering the second story of an existing two-story
dwelling, as the word ‘alter’ is specifically omitted from the
reference to two-story dwellings to indicate that a two-story
dwelling may not be altered. . . . Pursuant to Paragraph 1 of the
CC&Rs, only a one-story home may be altered.” By a parity of
reasoning, because the word “alter” was “specifically omitted”
from the reference to structures in paragraph 11, the restrictions
in that covenant do not apply to plans to remodel an existing
This more limited reading of “structures” in paragraph 11
is supported by the rule of construction known by its Latin name
noscitur a sociis: “Under the rule of noscitur a sociis, ‘“the
meaning of a word may be enlarged or restrained by reference to
the object of the whole clause in which it is used.”’” (DynaMed,
Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d
1379, 1391, fn. 14.) In accordance with this principle, “a court
will adopt a restrictive meaning of a listed item if acceptance of a
more expansive meaning would make other items in the list
unnecessary or redundant, or would otherwise make the item
markedly dissimilar to the other items in the list.” (Moore v.
California State Bd. of Accountancy (1992) 2 Cal.4th 999, 1012;
see In re J.G. (2019) 6 Cal.5th 867, 880; Grafton Partners v.
Superior Court (2005) 36 Cal.4th 944, 960.) Although in other
contexts the word “structure” may include the residence itself,
given the apparent object of paragraph 11 and the items listed—
restricting the height of fences, hedges, trees, shrubs and other
types of landscaping—“structures” in this paragraph is properly
limited to outbuildings or similar objects surrounding the
dwelling house, rather than improvements to the residence itself.
Additionally, any interpretation of the scope of
paragraph 11’s restrictions on “structures” must necessarily be
influenced by the paragraph’s relationship to the document as a
whole. (See Ezer v. Fuchsloch, supra, 99 Cal.App.3d at pp. 861-
862 [disapproving “disjointed, single-paragraph, strict
construction approach to a restrictive-covenant-document
interpretation” and holding CC&R’s must be construed as a
whole to give effect to every paragraph and to the general intent
of the covenanting parties].) Alterations to an existing residence
are expressly regulated by paragraph 2. If the architectural
committee, empowered by that provision to approve plans for
remodeling a residence, were obligated to reject a proposal that
obstructed the view from another lot, surely that restriction
would also have been included in paragraph 2 or an immediately
succeeding provision of the CC&R’s.15

A similar question of the relationship of a paragraph in the
CC&R’s that governed construction, erection or alteration of a

15 The Zabrucky majority gave a nod toward this reasoning,
conceding “it would have been preferable for the drafters of
paragraph 11 to have located the prohibition against erection of
‘any structure’ that obstructs the view of an adjoining homeowner
in its own paragraph or subparagraph.” (Zabrucky, supra,
129 Cal.App.4th at p. 628.)
“building, structure or improvement” (paragraph III), and thus
unambiguously applied to the residence, and a separate
paragraph that prohibited planting or erecting any “hedge or
hedgerow, or wall or fence or other structure . . . in such location
or in such height as to unreasonably obstruct the view from any
other lot” (paragraph IV) was at issue in White, supra,
116 Cal.App.3d at page 895. In holding that a new single-family
residence that satisfied the requirements of paragraph III was
not a “structure” subject to paragraph IV, the White court
emphasized that “the interpretation of paragraph IV was made
with reference to the CC & Rs as a whole, and specifically in
conjunction with paragraph III” and explained that paragraph III
had detailed provisions applicable to the construction of the
residence. (Id. at pp. 898-899.) Given that organization of the
CC&R’s, the court concluded, “It is not logical to further restrict
buildings by the catchall phrase ‘other structures’ in a paragraph
devoted to hedges, walls and fences.” (Id. at p. 898.) It is equally
illogical here to read paragraph 11, which immediately follows a
paragraph prohibiting raising poultry on a Marquez Knolls lot, as
containing a significant limitation on a homeowner’s ability to
remodel and improve his or her home, a topic dealt with
extensively in paragraph 2.16

16 The incongruity of reading paragraph 11 to apply to
renovations to a homeowner’s residence was implicitly recognized
by the Zabrucky majority when it softened that provision’s
absolute prohibition of any obstruction of a neighbor’s view by
structures within its ambit to preclude only “unreasonable
obstructions” of view, notwithstanding the general principle that
“implied terms should never be read to vary express terms.”
(Carma Developers (Cal.), Inc. v. Marathon Development
The original 1957 CC&R’s for Marquez Knoll tract 20179
and the subsequent amendment to paragraph 12, submitted by
the Eisens as interpretative aids, do not suggest a different
result. Originally paragraph 12 read, “No fences or hedges
exceeding three feet in height shall be erected or permitted to
remain between the street and the front set-back line.” That
paragraph was amended eight weeks later to read, “No fences or
hedges exceeding three feet in height shall be erected or
permitted to remain between the street and the front set-back
line nor shall any tree, shrub, or other landscaping be planted or
constructed that may at present or in the future obstruct the
view from any other lot in this tract.” The Eisens point out that
the language “or other landscaping be planted or constructed that
may . . .” in the amended tract 20179 CC&R’s was modified by
1962 in paragraph 11 of the tract 20305 CC&R’s at issue in this
case to read, “or other landscaping be planted or any structures
erected that may . . . .”17
This evolution of the wording in the
paragraph, they assert, makes it clear that the term “structures”
in paragraph 11 “is intended to be different from landscaping and
plantings” and “stood separately from the references to tree,
shrub, or other landscaping.” True as that may be, nothing in
this language change indicates “structures” as used in
paragraph 11 was intended to apply to the homeowner’s

California, Inc. (1992) 2 Cal.4th 342, 374; accord, 21st Century
Ins. Co. v. Superior Court (2009) 47 Cal.4th 511, 527.)
17 The Eisens explain they did not present this history of the
change in language to the trial court because they and the
Tavangarians had agreed the Zabrucky majority’s interpretation
of paragraph 11 controlled the court’s decision.
residence, rather than to include all forms of outbuildings other
than a private three-car garage.
4. The Portion of the Judgment Requiring the Street-facing
Hedges To Be Trimmed to a Height of Three Feet or
Under Is Affirmed
The Tavangarians neither dispute that paragraph 11 limits
to a height of three feet any hedges growing between the street
and the front setback line of properties in tract 20305 nor
contend the new hedges they installed at 1134 Lachman Lane do
not violate that restriction. Instead, they argued in the trial
court the Eisens had waived or were estopped from enforcing this
provision because the hedges had in the past, even prior to the
Tavangarians’ purchase of the property, been permitted to exceed
three feet and even to grow above the residence’s roofline.
In support of their argument the Tavangarians introduced
a photograph taken in August 2013 and Google images from 2012
showing the height of hedges above the house’s roofline, arguing
the Eisens’ inaction constituted a waiver. Alternatively, the
Tavangarians contend they detrimentally relied on the fact that
the hedges had historically exceeded three feet when they
replaced the existing hedges with new ones.
Mr. Eisen, on the other hand, testified he could see over the
hedges (that is, they had not grown past the roofline) when he
and his wife purchased their home in 2009. He also testified
that, before the Tavangarians purchased their home in October
2012, the hedges had been trimmed periodically, so they did not
grow as high as those in a photograph depicting the new hedges
planted by the Tavangarians, and did not block the Eisens’ view.
The party seeking to establish an affirmative defense of
waiver or estoppel bears the burden of proof. (See Waller v.
Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 33-34.) Because
the trial court found Mr. Eisen’s testimony credible, we cannot
say the Tavangarians’ uncontradicted and unimpeached evidence
compelled a finding in their favor on this issue. (See In re R.V.
(2015) 61 Cal.4th 181, 201 [where a trial court has determined a
party has failed to meet its burden on an issue, “the inquiry on
appeal is whether the weight and character of the evidence . . .
was such that the . . . court could not reasonably reject it”];
Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246
Cal.App.4th 761, 769 [“[o]n appeal from a determination of
failure of proof at trial, the question for the reviewing court is
‘“whether the evidence compels a finding in favor of the appellant
as a matter of law”’”]; Sonic Manufacturing Technologies, Inc. v.
AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466 [same].)
Accordingly, that portion of the judgment and injunction ordering
the hedges between the street and the front setback line to be
trimmed and maintained at a height of no more than three feet is
To be sure, as the Tavangarians argue, and the trial court
observed, hedges at roof height could not obstruct the Eisens’
view and would likely enhance, rather than detract from, the
overall appearance of the remodeled residence at 1134 Lachman
Lane. Nonetheless, for whatever reason, the Eisens have insisted
on strict compliance with paragraph 11 of the CC&R’s, which sets
an absolute height limit for hedges. They are entitled to do so.
5. The Interim Damage Award Must Be Redetermined
Based on the testimony of the Eisens’ appraisal expert,
Kenneth Kirschner, the trial court awarded the Eisens $39,000
for the reduction in the monthly rental value of their own home
between September 13, 2013 (the date the Eisens filed their
lawsuit) and February 23, 2016 (the last day of trial) “caused by
Defendants’ structures and hedges, which unreasonably
obstructed and or unreasonably detracted from Plaintiffs’ view.”
Neither Kirschner nor the trial court attempted to apportion the
impact on monthly rental value caused by the various sources of
view blockage (that is, to allocate damages among the first-story
improvements, second-story renovations and overgrown hedges).
Because only the challenge to the height of the front hedges at
1134 Lachman Lane is actionable, if on remand the Eisens still
seek damages for any loss of view caused by that violation of
paragraph 11, the court must hold a new trial limited to damages
resulting from that claim. (See, e.g., Gillan v. City of San Marino
(2007) 147 Cal.App.4th 1033, 1052 [remanding case for new trial
on compensatory damages limited to plaintiff’s cognizable

Outcome: The judgment and injunction after bench trial is reversed except as to the order requiring hedges located between the street and the front setback line of 1134 Lachman Lane to be trimmed and maintained at a height of three feet or under. The case is remanded with directions to the trial court to conduct a new trial
on damages, consistent with this opinion, and thereafter to enter a new judgment finding in favor of the Tavangarians and 619 Properties on all claims for damages and injunctive relief except with respect to their failure to trim and maintain those hedges as required by the CC&R’s. The parties are to bear their
own costs on appeal.

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