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Pacific Hills Homeowners Assn. v. Prun

Court of Appeal of California, Fourth Appellate District, Division Three

March 20, 2008, Filed

G038244

Opinion

 [**655] RYLAARSDAM, Acting P. J.—Defendants Jon L. Prun and Linda L. Prun appeal from a judgment requiring them to reduce the height of or move a gate and a fence in the front of their residence that violates the height and setback requirements in the covenants, conditions, and restrictions and architectural guidelines adopted by plaintiff Pacific Hills Homeowners Association. They contend the action was not subject to the five-year statute of limitations in Code of Civil Procedure section 336, subdivision (b) (all further statutory references are to this code unless otherwise noted) as the court determined, but was barred by the four-year statute of limitations in section 337.

They also assert that, in any event, the action was barred by laches and waiver, and the court erroneously excluded certain evidence  [***2] of other nonconforming use. We disagree with each contention.

Plaintiff filed a cross-appeal claiming that portion of the judgment requiring it to pay for two-thirds of the cost of relocation of defendants' gate upon satisfaction of certain conditions was erroneous. It did not address the substance of that issue, however, arguing that because defendants had not satisfied the conditions, its own appeal was moot. We decline plaintiff's request to clarify the effect of that part of the judgment.

Thus, we affirm the judgment.

FACTS

Defendants' home is located in a planned community subject to a declaration of covenants, conditions and restrictions (CC&R's) and governed by plaintiff. The [**656]  CC&R's allow plaintiff to adopt reasonable rules and incorporate them into the CC&R's. The CC&R's require “the prior written approval of the Architectural Committee” (committee) before construction of any improvement, including a “fence or wall” and also mandate receipt of plans by the committee and receipt of its approval before construction can begin. Plaintiff also adopted architectural guidelines (guidelines) that limit fences to six feet in height unless they are within 20 feet of the front property line, in which  [***3] case the maximum height is three feet.

In late 2000 defendants decided to erect a mechanical gate, connected to a fence and pilasters, across their driveway. Jon testified they reviewed the  [*1561]  copy of the CC&R's and guidelines they received when they purchased the home and found no mention of setbacks. Jon also testified that after this action was filed he noticed that the copy of the guidelines they received upon purchase of their home contained only odd-numbered pages; they were missing the page containing the setback requirements. (We note that the guidelines and amended guidelines in the record show the setback requirement was on odd-numbered pages.)

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160 Cal. App. 4th 1557 *; 73 Cal. Rptr. 3d 653 **; 2008 Cal. App. LEXIS 376 ***

PACIFIC HILLS HOMEOWNERS ASSOCIATION, Plaintiff and Appellant, v. JON L. PRUN et al., Defendants and Appellants.

Prior History:  [***1] Superior Court of Orange County, No. 05CC05219, James P. Gray, Judge.

Disposition: Affirmed.

CORE TERMS

gate, guidelines, defendants', setback requirement, feet, pilasters, laches, fence, statute of limitations, homeowner, recorded, architectural, restrictions, conditions, injunction, inviting, setback, height, notice

Governments, Legislation, Statute of Limitations, Time Limitations, Real Property Law, Encumbrances, Restrictive Covenants, Enforcement of Restrictive Covenants, General Overview, Interpretation, Civil Procedure, Defenses, Demurrers & Objections, Affirmative Defenses, Remedies, Injunctions, Justiciability, Case & Controversy Requirements, Actual Controversy